O2 Put default on my credit file after 4yrs seeking help please!

[buzby]

This kind of behaviour stinks, but it is very common. There are schools of thought that the default should be challenged as it was not placed timeously on your account, but I don't share this as the ICO's rules refer to CCA defaults which are more tightly controlled.

 

Also, there is no requirement for a Default Notice, (a CCA necessity), all they are stating is toyr accont is/was in default at the time the entry was made. If you challenge it for accuracy, the only hope for total removal is that the debt never existed. If it is found that the debt did exist, but was paid off subsequently then all that happens in that the entry should change from being showed a 'outstanding' to 'settled' - which to many minds is hardly an improvement.

 

You are right this is a problem that only O2 can properly resolve - so you need to get them to provide the information required to identify where the debit came from and why it was applied to your account. If you can challenge them successfully on this, you can ask for the total removal of the adverse entry.

[buzby]

Q1) Should i pay the amount of the default to try and show good faith or will this be seen as an admission that i owe the money?

If you owe them the money, you should certainly pay it - providing any mitigating circumstances as to the delay. As to an 'admission' if you owe them the money, making an admission is neither here nor there. The issue is if you never took out a contract, then - of course - it would NOT e a good idea to pay as that WOULD be taken as an admission a contract existed, - but this isn't the problem here.

Q2) From reading the threads it seems that the basis of having the default removed is that o2 have broken the data protection act by continually reporting the information to credit reference agencies, after the default has been applied as this makes the contact null and void. Therefor o2 no longer have your consent. Is this correct?

 

Not a view I share. In all probability, the contract was terminated y the network due to non-compliance of the agreed terms. However, this does not make your agreement for the sharing of your financial data concerning the contract somehow illegal. There as some issues about an ongoing ability to 'process your data' however this is a double-edged sword. They need the ability to also record when the debt was paid and/or discharged, and the ability to remove it entirely if erroneous. None of which could be done using this as a bechmark.

 

I have yet to find any relevance to the ICO's application of processes for CCA agreements to somehow magically apply to mobile phone service contracts. The are not mentioned specifically either way, which means until a court decides (and NOT a small claims action) then this will remain shrouded in ambiguity. On reading the Act itself, I don't believe it does apply. I would certainly contend after 5 years from the contract conclusion, no further processing of customer data should take place, but not when the contract is terminated.

 

Q3) I have also read that unless the agreement is regulated by the cca o2 can legally not place a default on your file as this would constitute your contact as being governed by the cca. or is this one correct?

 

Bunkum, I'm afraid. CCA contracts regulate the sale of 'money'. Mobile phones are service contracts, so the CCA is totally irrelevant. Additionally, the consumer has EXPLICITLY agreed for their credit info to be disclosed to CRA's as part of the contract - so this is nonsense I'm afraid.

 

Q4) how much do you think it would cost for a solicitor to handle this? (please don't say as long as a peace of string lol)

Pretty much They'll charge per letter - probably £40-50 depending, so if there is a furious exchange it could become costly, but in any event due to pre-existing contracts of service (mobile) your agreed to the disclosure anyway.

 

Q5) Should i email o2 in the meantime and ask for account numbers etc or should i just wait and send in a SAR.

As you'll need the account numbers FOR the SAR, I'd write (not email) to request them.

 

Q6) Would a telephone number be enough information for o2 to process a SAR?

Yes - along with any billing addresses and postcodes relevant to the account, and of course - the name!

 

As for the year's delay - no, I don;t see this as an issue. Just because you took over a year to pay doesn;t make the default any less accurate - it is being used as a way to ensure payment, and is pretty effective as one!

[buzby]

it would be nice to have a debate with all the correct legislation on this matter

 

four years to register a default

 

that really does stink

 

any body know the ico view on this practice

 

 

Yes. There isn't one. I have twice asked for clarification and none has been forthcoming. The wording of the closest thing to defaulting someone for non payment is for CCA regulated debts. Even this is not explicitly stated, but the terminology is closer to this than those for service contracts.

 

As for the wait of 4 years, this too is not explicit, where they say only that a 'reasonable time period' should be allowed for this data to be made available. It was the CRA's who pushed (and got the nod) for 6 years, this was to match what the courts did when they held the records of CCJ's and debtors. (Now all pushed out to a private company, Registry Trust to administer).

[buzby]

To put a default on an account not tell you is a disgrace and i have raised this point with my mp and to leave it this long before doing so also stinks.

 

I'm playing devil's advocate here - but if you didn't want them to do this, why on earth give them permission to do so? Nobody is forcing you to take out the contract, and you would have the right to reject or repudiate sections of it which I assume you chose not to do. (Of course, if you DID, they are not bound to accept these modifications), however both my contracts with different networks had that clause stricken from them - and it only took a matter of moments.

[buzby]

As much as it pains me to say it, O2 ARE 'being professional'. This is the state of consumer commerce all companies now find themselves in. The 'customer is King' is just a memory - they are simply cash cows to manipulate.

 

You may laugh at the tricks Ryanair comes away with to prise money from their passengers, but the communications networks are no different - they charge you a fee nor not paying by their preferred method, they charge you again in the payment is 'late' (the fact they took 14 days to deliver the bill isn't counted), that if you want to have a bill, you are charged £1.25 for each one they send to you...

 

What we need is a court (or the ASA) to rule that all these enforced additional charges are either illegal, or must be added to the advertised minimum monthly pyment to show people how uncompetitive their services really are.

[buzby]

I'll sign it!

[buzby]

Good luck. What is needed is firms to become responsible for their actions (or in your case, 'inaction') but as much as I like the idea, the way things stand it remioves the prime responsibility of a debtor to pay gor goods/services supplied, and that is a major weakening of case law going back to the year dot. I don't think it will change - as MPs have been pretty ueless in stopping firms charging you more for not paying by DD). It's an imperfect system - and if you DO take it to court, You've my support and good wishes, but with the real possibility of losing and paying the other side's expenses, I've learend to pick battles I know I've a great chance of winning.

[buzby]

I really do hope you can get it resolved. I remain appalled at how much power a CRA now has over a human being, being able to destroy their lifestyle without a second thought. Only a COURT should have the ability to provide a sanction, and it is this imposition of a non-CCJ that has made the court process (for mobile defaults at least) a non starter. They wreck your file, then sell the debt of to a third party for as much as possible. To my mind, this is no better than corporate loan sharking in reverse.

 

I have heard, that if you complain long and hard (and often enough) O2 will oblige just to get you off their backs. It's a shame you've got to waste your own personal resources in doing so!

[buzby]

My only concern is that whilst the letter is competent and clear, it isn't concise and if you cannot fir it into a typical A4 sheet, will be wasted. You need to briefly outline the issues, how they got it wrong, and what they need to to resolve the issue to your satisfaction. Anything else is usually fraught with an inability to concentrate (by the recipient) on what you want and what went wrong.

[buzby]

Why email? You know this is pointless (so far). Put it in an envelope and POST it - by Reocrded Delivery too to give it a bit of oomph. Letters like these are well liked should it go to court, as emails are too easily ignored due to 'server issues'.

[buzby]

Just a few observations. You acknowledge this isn't a CCA regulated agreement, then go on to ask them for evidence of a 'Default Notice'. Since this is a requirement of the CCA you are going round in circles. O" have defaulted you, there is no requirement for a 'notice' declaring this fact.

 

You made a massive (and incorrect) leap of logic by assuming that because the CCA doesn't apply mobile contracts, they are somehow protected from the ICO and the DPA. They're not and never have been.

 

Requesting 'true copys' is irrelevant and refers to providing agreements. All you are asking for is a copy or template of the debt pursuit letters they sent. These will be standard 'form' letters, but as these are mail-merged at the time they have no requirement to keep a copy, as they know what's in it. They may send you a copy of the template used to create it or tell you of its content, but either way it is not of any major concern.

 

There is no requirement for O2 to provide you with a contract, they can refer you to the current T&C's available on their website, which will cover your agreement, and yes - you are advised that DCAs will be used to score your application and to provide information on your financial dealings with the network. This has been in place since 1996 for O2.

 

As to your last paragraph, you seem to think that the 'right to process' provides for removal of data. It does not. Whilst the network cannot modify (this the the continued processing) old and mothballed contracts, this does not make the details 'disappear' - so asking the data 'compliance' (not protection) staffer to verify your misunderstanding just comes across as bluster. Finally, a reply 'in writing' covers both postal and email communications - by phone it is verbal, and you do want to reject this.

[buzby]

Although this is not a cca agreement the ico rules still apply. When i have spoken to them they said the guidelines are worded in such a way that it does not only cover a cca agreement.

 

It is called 'fuzzy logic' It is not specifically mentioned, so it must be covered. Unfortunately, courts need specifics, not implied terms. The ICO can certainly suggest what they 'meant', but it remains open to the courts to interpreted as they see fit, and as we all know, any smart solicitor will pull out case law to prove anything - so before money is wasted in raising actions, you need to evaluate the chances of success, and since the ICO won't act for you as a supporting witness to corroborate your understanding of the rules, you're on your own.

 

With regards to the letters i believe o2 should have true copys however they are produced, what ever they think they know. If they cannot provide a contract how do they no i have accepted there terms because i allowed a dd from my bank? I don't think this is correct other wise there would be no point in having a contract in the first place.

 

Afraid what you think is reasonable and what actually happens in practice are not the same. I've been in court for many actions against consumers by the networks (these tailed off in 2002 or so, as they let the DCAs take over), but the courts readily accept as part of the 'electronic age' that contracts are legitimately entered into and seen to be valid when a consumer makes payment for services rendered. I agree, this is a pretty big leap, but as we're stuck with it there's little point complaining about it now, as there are plenty of precedents where this has been upheld.

 

Terms and conditions might be on there website but i am sure these would have been updated after my contract was taken out and it does not have my signature at the bottom.

 

We're going over the same ground. Have you actually READ a contract? I can almost guarantee you that there will be a clause stating that the firm can modify or change those terms of the contract by giving you 30 days notice of the amendment. At a stroke, this allows all users to be covered by the SAME terms and conditions as everyone else. Since your signature is NOT required on any contract, having it 'at the bottim' or indeed anywhere else is lost in antiquity. It may be you signed something at one time, it may not - but the fact you are bound to whatever is currently referred to as the current T&C's is now a fact of life.

 

If i have given permission for o2 to use my data then i should have the right to request them to stop recording information with third parties ie credit reference agencies.

 

Have you tried pushing water uphill? The whole point is if you don't want your data disclosed, you don't give permission at the start, not try to effect a change mid-term. In any event, they donl't have to agree.

 

For the record, you contract is an agreement between two (or more) parties. If there is something you dislike or don't wish to app;y, you cross it out and send it back. They may agree, they may not. If they don't then there is no service and the contract is voided. The same holds true if you wish to change a term within after the event. You tell them, and they agree or disagree. If the latter, your only recourse is then to terminate the contract ot buy out any minimum term to permit its cancellation. Once your con tract is concluded, they stop 'processing' your data, per ICO requirements - however data previously supplied to CRAs will remain as a historical record of your dealings. You may think this still amounts to 'processing' but again the courts disagree.

 

Because if not then what your telling me is a mobile phone company can to what ever the hell it wants to any of its customers and there is nothing they can do about it?

 

Not at all - if you agreed to a contract and took their supplied service, you have to work within the T&Cs they provide. If you didn't, they cannot hold you liable, so nothing like your assumption, that 'they can do whatever the hell they want to'.

 

The ONLY way you can stick it to them, is NEVER to have agreed to the terms that you disliked, and I heard someone referring to it in court as trying to push the toothpaste back into the tube! Many of the unsavoury factors of mobile phone ownership is unknown by the consumer, hey you still see forums full of people begging to know what the 'best deal' is.

 

The best deal is never, ever agree to a contract that you can avoid by choosing to go PAYG. With industry figures even stating 80% of users never reach their minute bundles each month, that's a lot of money for nothing, even before they make money from the defaulters by selling on the debt to third parties.

[buzby]

How can you ask for written evidence that is NOT required? I agree it is to the detriment of the consumer when firms can say it was an 'electronic/virtual' agreement and the consumer's payment record confirms it exists. However, that's the system, we're stuck with it, and the courts uphold it.

 

As for asking for 'recordings' not all calls are recorded, and any recording that exists is for their protection, not the consumers (who clearly should be recording their own calls anyway). Cynics may also say no firm is going to be stupid enough to voluntarily provide evidance that does not support their position, but when you think about it - it is a reasonable assumption.

[buzby]

You'll be shocked when you realise how little a network needs to provide to prove an 'electronic commerce' contract existed. You'll also be aware hat DDM's are no longer 'signed' and sent to the originating bank as proof that the payments are to be made, they'll pay out because the network SAYS they received your authority.

 

The proof is in the detail - how would the network know your bank details unless you had voluntarily provided them with it? And if they hadn't provided you with a phone/service, why would you have given them your details and then NOT complained that the amount had never been authorised and you wanted your money back? It is the very fact that they were given the details, and can prove that your bank made X payments on a range of dates, is all they need to invoke the contract - and I've heard this argument put forward so often, this is now the rule, not the exception!

 

Handset upgrades and their lengthing/restarting of minimum terms remain a bugbear as it still comes down to they do it this way all the time, and the customer has misunderstood. I'm sure they are right about this - but there will be times when this isn't the case, and the consumer has nowhere to substantiate his claim UNLESS re recorded the call himself and kept notes of the transaction for just such an event.

[buzby]

Sorry - what IS the issue here?

 

Do you think there is some distinction between a new contract and an 'upgrade'? If you do, then your argument falls at the first hurdle. The provision of a new handset starts a fresh contract agreement between the parties. It may even bear the same agreement number, but will have appended to it a numeric suffiix (/1, /2 etc) to differentiate them. All an upgrade provides to the consumer is offasionally better pricing than someone who is not currently sontracted to the network.

 

As for the record showing as 'settled' why? when a contract is concluded correctly, it ends. 'Settlement' is a term referred to they payment of an outstanding debt, so if there was no issue of adverse information on the first contract, it would still show as being part of the (good) credit info and held for the relevant period.

 

As for what O2 does in practice - and the reasons behind it, goodness knows. You'd need divine intervention to work that one out!

[buzby]

This is the CRAs playing with the English langiage again - and worth challenging on this point alone.

 

In their haste to ape Court proceedures they latched on to the term 'default' which has a precise meaning, but for their usage, it means that action (or inaction) by the customer has put his account 'in default of the agreed terms' - NOT that there is a court-registered Default outstanding. The same goes for 'settled' this means the debt or dispute has been resolved. In relaity the contract is 'concluded;, and their love of using court terminology to validate their industry is worthy of investigation.

 

Priot to 1990, all consumers had to worry about was CCJ's - with CRA's stating that accounts had a 'default', meant lenders too the terms to mean the SAME, which is a scandal.

 

For example on how far this abuse of the langiage has gone on - are you aware of the difference between 'disinterested' and 'uninterested' - or do they mean the same thing?

[buzby]

O2 have no signed contract

 

O2 do not have the original default letters (true copys)

 

O2 cannot provide me with a signature receipt for the telephone upgrade

 

O2 do not have the upgrade telephone conversation recordered

 

Let's get the bad news out of the way.

 

(1) This is not a CCA regulated agreement, so no requirement for a formal Default Notice not a requirement for a true copy (I've already explained this earlier).

 

(2) If by this you mean they have no proof that you signed for the package containing the handset, then the complaint is that you have not recieved the goods as required under the contract and they should supply them (it does not invalidate hte contract).

 

(3) They don't have to have the conversation recorded. It is there for THEIR protection (not yours) and it would be accepted by a court that their online notes reflect the items discussed as part of the negotiations, with no requirement for a recording or actual transcription.

 

You need to have a clear view what you want to achieve. There's little point looking to score against percieved chinks in their business processes - incompetence is allowed. Try to find some common ground that you both can live with, even it it isn;t you walking away scot free from the contract. However if you didn;t enter into a contract, this becomes fraud, and a much more serious state of affairs.