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Hi

 

I need help to remove a default; which has been placed on my credit file by Orange.

 

I Originally took this contract out for a friend under my name back in 2006; she had 3rd party access on the account, the contract was purchased under a independent retailer; which was a cash back deal; my friend continued to pay the contract on regular basis; however the retailer closed the store and ran off; so therefore she wasn't being able to receive the cash back anymore. She began facing difficulty paying for bills and We contacted orange regarding the issue on numerous occasions to inform them of what happened, but they weren't interested and later it was passed to a debt collection agency who settled the matter at 642 pounds deducting £142.37 , and placed a default on my credit file which i was unaware of. I recently joined Credit Expert and realised i had a default on my record so contacted Orange upon the advice of Credit Expert.

They advised me they would remove the default; and that it would take a week and also i mentioned that my credit file showed i owed them money which has been paid back in 2007. The adviser assured me it would be removed, a week later i called up again as my credit file still appeared to show a default on my account; they again said that it would take another week for the default to be removed as the request and i also stated the fact that it still appeared to show i owed 642, which again they reassured me the default would be removed as prior no one submitted a request for it. My credit file was amended to state the balance was settled and showed satisfied on 06/06/2009, however the default remained, I Contacted Orange again, where upon i have been told that the default wouldn't be removed as it represents a true and accurate reflection of how the account was conducted in terms of payment performance. The default status will therefore remain for a period of 6 years from the date of default.

I Never received any notification about the default and i have been constantly emailing their credit referral department where they constantly stipulate they will not remove the default and that it has recently been escalated to a manager upon request.

 

What can i do, Where do I go from here?

Please advise, I would appreciate it.

 

Thank You For Reading

 

 

Edited by Ms-Unknown
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Ms Unknown,

 

It would seem the account was short settled meaning that you paid the DCA a reduced figure so this would show on your credit file as a Partial settlement or full and final settlement meaning what you paid would not clear the outstanding balance in full. As a result of this partial settlement orange have to by law report this meaning a default would automatically be added since the full balance was not paid.

 

Might be an idea to launch an online dispute with Equifax and get them to investigate it on your behalf if orange do not reply to Equifax's request within 21 days then Equifax will remove the entry until such time they do reply.

 

Orange do report to both Equifax and Experian though i believe and if Equifax do remove the entry it will still show on your Experian report.

 

Request an online investigation and whilst that is going on put in a SAR request to orange which costs £10 but will provide you with all the bills and comments made by customer services and collections on your account.

 

Keep us updated on progress.

 

Dera.

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The default status will therefore remain for a period of 6 years from the date of default.

 

 

You say the DCA placed the default marker. Is this correct?

 

There are two ways that a DCA can act.

 

a) as agent for Orange in which case it is Orange who is responsible for the default and the whole DCA file

 

b) as owner of the debt. In this case Orange will have assigned (for a cash payment) the debt to the DCA. The DCA will then be responsible for the CRA file and default.

 

Which DCA?

Edited by pelham9
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Thank You for all your responses; The default has been placed by Orange as It states on my credit file;

I haven't heard anything from the manager as of yet;

 

If I request a SAR; would that include conversations taken place between me and Orange, but not documented on the account; meaning call scripts?

 

Thank You

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I have received a response Via email as follows;

 

Dear Miss ********,

I can understand your frustrations relating to this matter, however as a customer you were bound by the Terms and Conditions as set out in your contract and duly responsible for any debt or credit history incurred. The default status recorded is correct and will remain for a period of 6 years from the date of default.

Unfortunately I am unable to review your call recordings or transcripts of your call as requested as we are of the view that the supply of this information would constitute a disproportionate effort, as described in section 8.2 (a) of the Data Protection Act. I have listed the reasons we feel this constitutes a disproportionate effort below.

 

Orange only record calls for training purposes, we receive approximately 5 million telephone calls each month and record less than 1 percent of the calls we receive, any call recordings are held for a maximum period of three months.

 

The computer system Orange use to record calls stores any information against the name of the member of staff you spoke to, it does not record on your account that the call has been recorded or use any of your personal details when this call is stored. This makes it extremely difficult if not impossible to locate recordings of particular calls.

 

The only way to locate call recordings is to search through a list of calls recorded against the name of each member of staff you have spoken to, whilst we record less than 1% of the calls we receive, there are usually several hundred call recordings stored against the name of each member of staff in our Customer Service Department at any one time, due to the extremely low probability that any of your calls will have been recorded and the difficulties inherent in locating this information we are unable to supply it.

Credit Referrals are not part of Customer Services, however I can ensure you that your query has followed the correct escalation route within our department. Myself (Supervisor), Senior Team Manager and Departmental Manager have all reviewed your case in full. As previously advised, this is our final position on this matter.

I have taken advice from our Executive Team in relation to how you can now progress your dispute further outside of Orange. In Orange's formal escalation procedure the next step would be to apply to an external Arbitrator if you are unhappy with our response.

In order for a you to be eligible to apply for Arbitration you must contact CISAS within 9 months of the date of the initial complaint. In this case it would appear that your initial dispute dated back to the 31st October 2006 so you aren't eligible to follow this route. All I can instruct you to do at this point is to seek legal advice in relation to your dispute with Orange.

If you decide to start proceedings again Orange this will need to be arranged through yourself and your nearest county court, these proceedings will then by served to Orange by the court on your behalf. These proceedings will be dealt with directly by the Orange Legal Team; if you wish to send them a copy of this their address is as follows –

Orange Legal Team,

St. James Court,

Greatpark Road,

Almondbury Park,

Bradleystoke,

Bristol.

BS32 4QJ

Their fax number is 0870 376 4700.

To re-iterate this is Orange's final position regarding your dispute and no further correspondence will be entered into by our team.

Yours Sincerely

Dawn Craven

Credit Referral Supervisor

---------------------------------------------------------------------------

 

I have been emailing them back and forth and this is getting me nowhere

 

Please advise what i Should do next

 

Thank You

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They've pretty much told you point blank they aren't going to remove the default or take any further action in relation to the dispute, that being the case your options are limited, they clearly aren't going to entertain further correspondence from you and they state you can't seek adjudication of the dispute.

 

If your confident of your position you could take legal action against Orange, however, it's basically your word against theirs. AFAIK Orange's innocence would be what's called rebutally presumed in these circumstances, if they state they didn't agree to remove the default you would have to prove to the court on the balance of probabilities what you state is true. Do you have any evidence to support your position that they agreed to remove the default? If not it would be down to you to convince a judge what you say is true.

 

You've commented in your initial post that they did not advise you about the default, you had a service contract with Orange not a credit agreement, they would not be required to notify you of a default in the same way that a loan company or credit card company (i.e. a lender under the Consumer Credit Act) would be.

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  • 3 weeks later...

Hi There,

 

Well I will try and help if i can, i have done exactly the same as you only until now have i been bothered to research my credit file for nearly 5 years now as i have a good job did not really need the credit yet. However on my discovery i have found a default from orange on my credit file, worse still a ccj all showing satisifed!!!!

 

I have just sent a letter to orange along with an e-mail to executive.office@orange-ftgroup.com, the response was swift and dealt with quickly. I have never had a mobile phone with them it was cancelled.

 

Orange Legal Team,

St. James Court,

Greatpark Road,

Almondbury Park,

Bradleystoke,

Bristol.

BS32 4QJ

 

16/07/2009

 

Ref:

Account number: not known

Contract Started: 11/08/2003

 

Dear Dawn Craven (Credit Referral Supervisor)

 

Re: Formal notice to desist from processing or disclosing personal subject data

 

I have recently conducted an audit of my personal credit reports supplied by Experian, Equifax and CallCredit.

 

It is noted that there exists, within all three files, an entry referenced as “Orange plc” indicating a former Mobile Contract (now closed) of £258. This is recorded as “In Default” albeit showing a settlement date of 07/08/2005.

 

I am contesting that Orange continued processing of my data is an unwarranted act and I enclose a Statutory Notice to that effect, which is deemed served as of the date noted on the Royal Mail's Recorded Delivery service audit.

 

My written permission allowing Orange to continue processing, or disclosing, my personal subject data was revoked upon termination of that original contract and I hereby reiterate that revocation. I also do not recall receiving any such Notice of Default being served on me. Unless the Orange can provide a true copy of the said Notice, then I consider that any default entry on my credit files to be wholly unwarranted.

 

However, if you can supply the copy, then I also contest Orange continued processing on the following grounds.

 

As you are aware, I am afforded principled rights under the Data Protection Act (Data Protection Act), Schedule 1, Part 1 ("The Principles") in relation to the manner in which my data is collated, stored and processed. Of particular note, are Principles 3, 4 and 5:

 

“3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.

 

4. Personal data shall be accurate and, where necessary, kept up to date.

 

5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”

 

In my case, Orange is still processing data after the cancellation of the contract, whether or not this is a simple renewal process of the default flag, daily or by other timing factor. As that contract is no longer in situ, then my written permission has also ceased from the date of cancellation.

 

This is confirmed in Principle 2 of the Data Protection Act, which states:

"2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes."

 

I emphasise the term "specified and lawful purposes" as in ‘those specified within the contract’, and no more. I also emphasise the term "shall not be further processed".

 

I have taken the matter up with the Credit Reference Agencies, and they had claimed that they had a “legal right” to maintain this type of adverse entry for up to six years. When I challenged them to quote me the exact Statute that includes this so-called “legal right”, they remained remarkably quiet. Only after my continued insistence of disclosure did they eventually concede that, whilst they have no statutory right, it is “standard industry practice” but they added that they are “allowed to by Law”. After further challenges, they finally admitted that unless this was a County Court issue, their term actually referred to contractual Law, but continued to emphasise that it was “standard industry practice to record default entries for six years.”

 

As a highly-educated company, may I respectfully presume that you likewise recognise that “standard industry practice” does not correlate with “legal right”?

 

Further investigation has also led me to conclude that the only six-year data ‘retention rule’, to which they may adhere to, is in relation to information in the public domain, e.g. Bankruptcy Orders/Discharges, IVAs, CCJs, etc. These are kept in the public domain for six years. But, these are sealed orders issued by a judge through the Courts who oversee the ultimate jurisdiction in all matters relating to Law, be it the criminal code or the Common Law. It is not up to Credit Reference Agencies, or lenders, to decide legal issues.

 

In addition, the agencies may also hold information that is deemed ‘in the public interest’ for the avoidance of credit fraud or deliberate repayment avoidance; I refer, of course, to CIFAS and GAIN entries on a credit file. My former account was not subject to any such marker, nor is my former civil contract with x a public matter.

 

After scrutiny of all the relevant legislation, including the Consumer Credit Act (As Amended), the various Financial Services Acts and the Data Protection Act, etc., it is clear that there is absolutely no legislation that allows a lender or supplier (e.g. Orange) to collate, process or distribute any other information unless there is express written permission from the data subject.

 

In fact, Section 10 of the Data Protection Act awards the real authority, regarding privacy of data, to the data subject, not the Data Controller. The Act is also very clear as to the rights of the data subject in respect of withdrawing permission to continue data processing and disclosure:

 

10. - (1) Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons-

 

(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

 

(b) that damage or distress is or would be unwarranted.

 

However, there are some exclusion provisions for Data Controllers, and Section 10 does continue with various exceptions to subsection (1) above, and these are quoted, in full, below:

 

10. - (2) Subsection (1) does not apply-

 

(a)in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met,

or

(b)in such other cases as may be prescribed by the Secretary of State by order.

 

To paragraph (b), I can only presume that x has not applied to HM Secretary of State for an order allowing you an exclusion, which leaves x with the only remaining possibility of requesting an exemption under paragraph (a).

 

So, we must turn to the exemptions permitted in paragraph (a) to find where Oranges’ Data Controller may invoke his perceived exemption to the Data Protection Act, namely, those listed in paragraphs 1 to 4 of Schedule 2. I have reproduced these exemption paragraphs, in full, below:

 

“1. The data subject has given his consent to the processing.

2. The processing is necessary-

(a) for the performance of a contract to which the data subject is a party, or

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

4. The processing is necessary in order to protect the vital interests of the data subject.”

 

It is my contention that Oranges’ supposed right of obtaining an exemption is not contained within any of these paragraphs. I have followed each in turn with my notation to give a clearer explanation, should there be any lack of clarity.

 

1. The data subject has given his consent to the processing.

 

That consent was terminated upon the cessation of the contract and, as stated earlier, I reiterate the revocation herein, and by the attached Statutory Notice.

 

2. The processing is necessary-

(a) for the performance of a contract to which the data subject is a party, or

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

 

For (a), there is no contract being performed, and for (b), Orange and I are not entering into any form of contract, and certainly not at my request.

 

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

 

According to the Information Commissioners Office (I.C.O.), exemption 3 includes all other statutory obligations for which the interests of national security and welfare override personal privacy.

 

These obligations allow for the provision of data to Official agencies and organisations, e.g. disclosure to crime prevention agencies (Police, Intelligence Services, etc), official Government agencies (DVLA, DSS, Passport Agency, etc.) and health authorities, etc., and for any other purpose not agreed within a civil contract.

 

We all know that the three major credit reference agencies are not Government bodies, nor official agencies, but for-profit companies, even though they like to think they are official. None of these three agencies are listed in the appropriate Data Protection Act Schedule that names the specific organisations that are permitted any such exemption rights.

 

4. The processing is necessary in order to protect the vital interests of the data subject.”

 

With reference to the I.C.O. again, this is interpreted as anything that affects the data subject as a matter of life and death. This clause is included in the Data Protection Act to permit data, like medical records or contact details, being disclosed in emergency situations. I do not believe that my former account details could be described as anything like a matter of life or death.

 

So, it is clear to see that there is neither statutory provision permitting Oranges’ Data Controller to assume continued processing rights of my data at his discretion, nor any exemption. I can then only assume that x is relying on the Common Law, and contractual law, as determined by the contract that both parties originally agreed.

 

However, the contract that I originally signed with the bank, only gave x permission to process data during the term of that contract. I think it is fair to assume that you agree that the contract was terminated some years ago, whether or not a Default Notice was served.

 

The contract neither included any other permission, nor did it imply that your perceived 'rights' to process my data would be ‘in perpetuity’. There was also no clause contained within the contract that stated that Orange had any arbitrary right to continuing processing data for up to six years after the ending of the contract.

 

Also, I cannot recall any clear statement that gave my express permission for Orange to continue disclosing my subject data to third parties after the end of the contract. You are no doubt aware that any non-agreed disclosure of personal data to third parties, without express written permission, is a criminal offence under Section 35, of the Data Protection Act.

 

However, if I am mistaken, and the contract did, indeed, specify unlimited time extensions, then you must provide me with a copy of those signed terms indicating where I have agreed to them. This should be sent to me as one of your enclosures, if you wish to contest the enclosed Statutory Notice. You should be aware that you have, by statute, twenty-one days in which to either comply with my Notice, or give written notice stating your reasons and why you consider the Notice unjustified.

 

In summary, in relation to this former loan contract, I am formally instructing you, as an authorised officer of the Bank, from this day onwards, to:

1) cease to continue storing, processing or communicating my data;

2) remove all such data from automated process systems, as per the provisions of Part II, Section 12 (1) of the Data Protection Act, namely:

(1) An individual is entitled at any time, by notice in writing to any data controller, to require the data controller to ensure that no decision taken by or on behalf of the data controller which significantly affects that individual is based solely on the processing by automatic means of personal data in respect of which that individual is the data subject for

the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct.

 

Of particular note is the Acts own term “his creditworthiness”;

 

3) cease to disclose any data to any third party including, but not restricted to, Equifax plc, Experian Ltd and Callcredit plc; and

 

4) instruct Equifax plc, Experian Ltd and Callcredit plc to remove all data pertaining to your records on me, to the extent that no data entry in relation to Orange plc will exist on my credit files.

 

Any failure on your part to adhere to these statutory timescales will automatically be interpreted as your non-compliance with the legal procedure. In that case, you will be expected to unconditionally comply with my Statutory Notice or I shall have no alternative but to refer the matter to the Court to seek an Order to that effect. Should it be necessary to refer the matter to the Court, then I shall also apply for Court fees and legal costs against the Bank. I shall also reserve the right to seek redress for damages as per the remit of the Data Protection Act.

 

 

I trust that I have made my position clear, and that Orange will now make a serious effort to understand its legal obligations and effect the changes requested. Should you be in any doubt as to the Banks obligations as a Data Controller, then I would advise that you consult your corporate counsel.

 

 

In any event, I shall expect a written confirmation from you acknowledging the contents of this letter within 5 working days, as per the requirements of section 15.3 of the Banking Code.

 

Yours faithfully,

 

After this i have received a letter today back from them stating that they have no record of any default on their accounts nor any existence of me being on their systems!!!!!!!!!!!!!!! shock horror, all this time this has been sitting there on my credit file.

 

The reason it was showed as satisfied is because i was at uni at the time and everything was posted back home, so i guess my mom saw the court papers and payed the fee without telling me????

 

so you could try this letter and see if they can provide evidence of your account etc and that fact that they were not allowed to pass your details over.

 

hope this helps

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The original posters situation is different, you state you never had a contract with Orange and they presumably accepted that the contract was entered into without your knowledge - as such they'd be obliged to remove the default as a possible case of fraud.

 

That isn't the case here, the original poster acknowledges that she did enter into the contract, the standard terms of which would allow Orange to communicate payment information to credit reference agencies, so this paragraph of section 10

 

“1. The data subject has given his consent to the processing.

2. The processing is necessary-

(a) for the performance of a contract to which the data subject is a party,

 

 

of the act would allow the mobile phone company to process the data in the first instance. In addition it could be argued that any damage or distress caused by information on the credit reference file is not unwarranted because it is an accurate reflection of Miss Unknown's payment performance, which should be presented to other lenders or service providers likely to enter into contracts with her.

 

It could also be argued it is in the wider public interest for other companies or persons entering into contracts with the original poster to be aware of her conduct during prior service agreements.

 

Orange are in all likelihood not processing the data following the conclusion of the contract, they would probably have provided the information to the credit reference agencies at the end of the contract, which now remains on the credit file. I doubt they actually continue to activley process the data, so a request to cease processing the data might not do any good, as the data would remain on the credit reference file as it has all along.

 

Section 10 of the DPA was clearly not intended to allow debtors to challenge entries on their credit file, particually accurate entries. My view is that if you can show the entry is inaccurate you can challenge it, if not your stuck.

 

Your letter/email looks to be a bit of a hodge podge of several different standard letters I've seen before on this site. You refer to loans which is irrelevant as a mobile phone contract is a service agreement not a credit agreement, you also refer to the banking code which is also irrelevant as a mobile phone company are clearly not a bank or any other sort of financial institution. I'd suggest that it is amended to make it more relevant if in fact the original poster plans to send it.

 

Orange would be legally obliged to enter into correspondence if the original poster sent a section 10 notification to cease processing data, but they can refuse to act on a request to cease processing data as long as they provide reasons, so it would not guarentee that they would cease processing the data in any event.

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Thank You For Your Help

I appreciate all Responses However What Stance Could I Use To argue Or Persuade Orange To remove The Default; We also Refused To pay The Charges Towards The End Due To a Dispute; as The account also Had Unlimited Weekend Calls; as My Friend Had To End Up Paying For The Contract;She Lowered Her Tariff To Make It Cheaper To Pay It Off; She Confirmed With The Orange Consultant When She Should Stop From Utilising The Weekend Calls. He Advised Her Continue To Use It Till The End Of The Month as Her Tariff Would Be Changed Beginning of Next Rolling Month.

However That Was incorrect and She Received a Huge Bill as Her Tariff Had Come Into affect The Very Next Day.

Orange Denied Giving any Sort Of Info and Were Not Taking Liability, Which Is The Ultimate Reason Why My account Was Defaulted as She Refused To Pay For Something Which Was Oranges Fault.

 

However I Can't Prove This as This Was Verbally Discussed Over Phone.

 

Please any Advice Would Be Much appreciated.

 

Thank You.

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