challenging the CRA's-have we all missed something?

[vint1954]

Another possible letter,

 

Dear Sir,

 

I refer to your recent letter, dated XX/XX/XXXX, reference number XXXXX.

 

You have stated that you cannot provide a true certified copy of the default notice that you are required by law to issue (Section 87 of the Consumer Credit Act 1974, with content as dictated in the form of Section 8:cool:.

 

Accordingly, I require you to immediately contact all external and internal agencies (including, but not limited to Credit Reference Agencies) that you have processed my default to and arrange for the item to be removed from my credit history.

 

Please note - a simple amendment or note will NOT suffice, I require full removal.

 

I look forward to your reply confirming that you have taken the above action.

 

Should the above not be confirmed by you as actioned within 14 days, I shall seek legal recourse.

 

Yours faithfully,

 

 

Mr X

[vint1954]

Comments from Andrew 1

 

You do not give them rights to process your data 'in perpetuity' ie: forever and a 6yr day. Once the contract is ended it is widely agreed within this thread at least, that the obligation to process your data ends. Someone else will come and confirm that, but it is a long battle against organisations which believe this processing for 6 yrs is in statute. The credit industry invented these rules for themselves. They abide by their own rules and regulations not what the law states. If you look at the agreement you signed and pick the words to pieces you'll see what I mean. You will need to have your wits about you and a sheer cold blooded resolve to get them to stop, but it can and has been done. Good luck.

[vint1954]

Further point on 6 years rule:

 

You should also be aware that the Information Commissioner has notified us that the condition for processing below covers the sharing of account data with the credit reference agencies for the duration of a contract and six years beyond.

 

this section above pasted from experian reply on previous page to mr kirk i think, am i right that the cras say a default means the end of the contract and then they process for six years beyond that date? if so which date applies when a creditor places two defaults over a two year period, which date is the end of the contract date?

Credit Report Click link to open in new window.

[vint1954]

Car2403's thoughts on the above

 

The contract comes to an end at the point of Termination after Default. (If you don't comply with the Default Notice the account can - and usually is - Terminated) This is the point where the terms of the contract can be said to have "come to an end", arguably including the terms allowing processing/sharing of data about the data subject.

 

The Information Commissioners Office's view is an opinion, which, IMHO, is wrong and should be challenged, as there is no legal precedant to support his opinion. The fact this is "industry standard practise" is obviously having an effect on his opinion - an effect which can't be considered in a Courtroom without evidence of its legal effect.

[vint1954]

Useful link:

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/103974-roll-call-who-has.html

[lickthewallfatboy]

vint-you've been busy!!

[vint1954]

And Surleybonds WON..................

 

Just like the old Chinese bamboo story... unless you keep going, the end result will never happen...even when you felt like giving up..

 

We got a four page email this afternoon in relation to our calls to Experian yesterday. This was from the Directors' Office who must now be softly shi**ing themselves waiting for the onslaught... I have added my own comments (with the permission of the letter recipient)...

 

I cut some waffle paragraphs out - God, do they still try and wriggle, even when they're stuffed - but I hope you get the salient points and admission of wrongdoing.... by a CRA. Good grief...wonders will never cease.

 

I'll bet he was squirming in his seat having to write this, gnashing his teeth and sticking pins into a Voodoo doll of me. Ouch!

 

Read, digest, enjoy and then go have damn good s*x... because it's almost as good as that... okay maybe I'm totally exaggerrating that last bit!!!!

 

Our Ref: ************

BY E-MAIL AND POST

6 September 2006

 

Dear Mr ************

 

Thank you for your e-mail received 4 September 2006 and your telephone call yesterday. [You're so very welcome...but, have you got the hearing back in your right ear?]

 

I apologise if I caused any offence in my last e-mail and can assure you that this was not my intention. Nor was I attempting to scare or bully you by suggesting you contact the Information Commissioner in the first instance. This is the recommended course of action suggested in the Information Commissioners own literature. Their leaflet 'Taking a Case to Court' also advises that a court will wish to know what steps you have taken to try and settle your claim. [that's right - grovel all you like now I've threatened to send your letter to the I.C.O. and sue your sad ars*s in a Court of Law]

 

I have been informed that the wording on our web-site is being amended to reflect a more accurate portrayal of our rights with regards to your information. [Ahem?... could it have been anymore 'less' accurate???] The suggested wording is as follows:

 

"We have a legal right to hold information about people that is already in the public domain (e.g. CCJs, IVAs, etc). Other information is collected and supplied under cover of the Data Protection Act 1998 Schedule 2.1 which says that the data subject should have given their consent. This will be collected by your lender or supplier when you apply for a product. A section on the application form will typically direct you to a section on the use of your personal data and will state that "by proceeding you are agreeing to your information being used in this way"."

 

I trust that this now meets with your approval. [Yes, maybe I should have even charged publishing fees for my wording! ] As discussed I can also confirm that as far as we are aware there is no specific piece of documentation or legislation that provides us with the right to retain your information for six years from the date an account is settled. [GOOD GOD!!!!!! .... they now FINALLY admit in writing!! halle-blu**y-lujah]

 

It was agreed throughout the credit industry that six years is considered a reasonable amount of time for account data to be retained from the point that an account is settled in accordance with the 5th Data Protection Principle.

 

 

[and this bit is absolutely vital to my whole initial argument:]

 

This information would only be retained with your consent as per the terms and conditions of the particular account you held. [Thank you for agreeing with me ... at last]

 

The generic terms and conditions I referred to in our telephone conversation can be found on the Orange web-site and read as follows:

 

19.3 Your information

Orange or its Group companies will use your information which you provide to us together with other information for administration, marketing, credit scoring, customer services, tracking your Device and web use preferences, and profiling your purchasing preferences. We will disclose your information to our service providers and agents to help us with these purposes. We will keep your information for a reasonable period after your contract with us has finished in case you decide to use our Services again and may contact you about our Services during this time. [Yes, I know what they NOW say - it was my kicking that forced to try a new tactic]

 

I am unable to comment on the specific terms and conditions you signed up to when agreeing your contract with Orange. [so STFU then and stop pretending you know all about what was agreed to] All companies that subscribe to our services are required to comply with our suggested consent wording which can be located on our web-site at the following address:

 

http://www.experian.co.uk/corporate/compliance/fairobtainingclauses/index.html

 

...

 

As requested I am also adding the following Notice of Correction to your credit report until you notify us that it is no longer required:

 

"THE DATA SUBJECT HAS EXERCISED HIS RIGHTS UNDER SECTION 12(1) OF THE DATA PROTECTION ACT 1998 AND HAS CHOSEN TO OPT OUT OF AUTOMATED PROCESSING AS OF 05 SEPT 2006. CREDIT STATUS ENQUIRIES SHOULD BE MADE VIA A MANUAL PROCESS."

 

I would recommend that when applying for credit you notify each lender of your request as we cannot guarantee that a company will follow the instructions outlined above.

 

I have added this statement to the electoral roll information appearing on your report. As this is information you agree we are entitled to hold, it will be available to anyone searching your details regardless of any other entries being removed from your report.

 

If you have any further queries, please feel free to contact me directly either by e-mail at *********@uk.experian.com, by telephone on ********** or by writing to me at the following address:

 

Directors' Office, Experian Ltd, PO Box 8000, Nottingham, NG80 7WF

 

Yours sincerely

 

Mr * * *******

Consumer Compliance Executive

Directors' Office

 

 

I've absolutely NO idea how many thousands of words I have typed into letters, emails or this forum, but when I get a result like this, I can honestly say that each and every damn key press was worth it.

 

Now, excuse me whilst I go and have a quiet lie-down and recover...

Of course, their admission in this letter can now be used as evidence that they agree that it is dependant on the specific terms of the individuals contract... and what's more Experian's legal dept. must have approved such a letter before allowing it to go.

 

HOWEVER, I bet that you will now see contract terms being altered to six years even for non-public defaults.. I note that Experian have already changed their suggested templates.

 

As I said on another thread, just amend the T&Cs, to read "for the duration of the contract only" and initial it.

 

Having said that, I think there are also ramifications under the UTCC Regs anyway, as there are no reciprocal rights for the consumer. However, it is harder to have a clause deemed unlawful, and removed from a contract and then have the CRA amend the data, than just amending the contract in the first place.

[vint1954]

vint-you've been busy!!

Sad for a saturday afternoon.

[vint1954]

And finally:

 

Again by Surleybonds

 

Okay people... you're all looking at lots of paperwork (which is fine), but there's a little nugget of shiny stuff embedded deep within the bowels of the Data Protection Act 1998.

 

Ladies and Gentlemen, a little known fact about the Data Protection Act and credit reference agencies and automated searches:

 

You are legally entitled, under Part II, Section 12 (1) of the Data Protection Act to insist that no agency can use your data for automated purposes including... and I quote from the said Act...[drumroll]...

 

(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. ...[tada...takes deep bow]

 

Okay, what does it mean in English...

Whilst credit ref agencies can store the data, you (and only you...not them... YOU, the "individual"/data subject/etc) can decide if you want that data to be included in any automated processes which includes the automatic reference transactions that banks and Co. send through for ref checks.

 

You may, if you so wish, ...(and the agencies can't do diddly-squat about it)... insist that your data is excluded from the automation process, and that it can only be utilised within manual reference purposes... which by the way, none of the agencies have the ability to process.:grin:

 

If you think I'm joking, I've done it for all three of the ref agencies, and they've all had to remove all my data from the automation process because I threatened them with a Court Order if they failed to do so.

 

So, what happens in reality. Well, maybe try what I did...

 

1) Send them a recorded delivery letter along these lines...

"Dear Sirs,

 

This is a formal notice, served under the provisions of Chapter 29 of the Data Protection Act 1998 in requesting that you conform to my demand for a change in the manner in which you hold and process subject data about me.

 

As you are no doubt aware, Schedule II, Section 12 (1) of the said Act allows all data subjects the right to insist on the removal of any and all data from automated processes in repsect of matters relating to them. I have reproduced that clause for your information, in case you do not have a copy to hand:

[insert clause from above in quotes].

 

You will note the exact language of the Act, in that such a request may be made in relation to a number of different reference checks "which significantly affects that individual", and the Acts specifically cites

"credit worthiness" as one of those examples.

 

Recent checks on my file have caused severe complications, and now "significantly affect" my everyday life, and that of my family. An additional point to note is that issues of this nature that adversely affect "normal family life" are in breach of the Human Rights Act.

 

Therefore, you have seven days from receipt of this letter to remove all such data from your system where it is referenced and processed via automated processes. You will obviously need to transfer it to your manual process system and alert your customers that my data can no longer be searched via an automatic process.

 

I look forward to receiving your confirmation that the above change has been made to my file at the end of that seven day period.

 

To that end, I look forward to receiving your confirmation by close of business of ...[date it nine days hence to give them time].

 

Yours, etc"

 

I did this to Experian, Equifax and myCallCredit last month. Equifax argued the toss initially, then I issued an N1 Court Form against them, and as soon as they got that they capitulated. By the way, they also had to pay the Court fee. :grin:

 

Of course, they don't actually have anything on their system that can manage a manual intervention on a credit check, so they have to bar all the data from being read.

 

The other tact is the contractual issue, and this is even easier.

 

Background, last year I cancelled my contract (after 2 years) with Orange to switch to another telecom. Orange (conveniently) forgot to cancel my contract and tried charging me up to 3 months of additional monthly tariffs.

I refused to pay, Orange got arsey, so I threatened them with a counter if they tried the recovery route, with copies of my letters and the Rec Deliv numbers of my cancellation letters.

A letter from them the next week... "blah, blah, as a gesture of goodwill, we have cancelled the £30 owed...etc.". OWED!!!! I'll give them firkin "owed" - cheeky bar stewards. Anyway, after I calmed down...

 

I noted about a month later that Orange had put three months of unpaid bills onto my credit files, so I had an "Up to 3 months late" marker on my file which is just about up there with a CCJ or default. I told them to adjust the data, they refused, so I sent the following within letters to Experian, Equifax and MyCallCredit:

 

"...As to the Orange account staying on my file for six years, you should note that this was not a defaulted account at all. I gave Orange notice to switch to another provider and they didn't process my cancellation in time. I then refused to pay the months after my notice of cancellation. They have now recognised this by asking all the agencies to remove the alledged late payment information..."

The agencies got hold of Orange who then cleared the 1,2 and 3 markers BUT left the account as default/settled.

 

The agencies all wrote back saying that they could keep such a reference on the file for up to six years.

 

I then sent the following to all three:

 

"... As to the Orange account staying on my file for six years, you should note that this was not a defaulted account at all and, even if it was, you are no longer permitted to hold such data on my file.

 

Upon signing my contract with Orange, I only gave Orange my permission to log my account dealings whilst the contract was in place. If you read the wording of that contract it states quite clearly that I "give permission for Orange to supply credit reference agencies with information relating to the conduct and payment history of my account." I neither agreed to any other purposes, nor did I agree for that clause to include the term "in perpetuity".

 

Additionally, the contract also states that "this agreement may be cancelled by either party in writing".

 

That contract is now (very) cancelled (and has been for some time now) and therefore they have no signed mandate or permission to instruct you to retain or store data on me.

 

Schedule I, Part 1 "The Principles" of the Act states, quite clearly in Clause 5:

 

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

 

So, you will kindly remove the entire record, or I will issue a Formal Notice on this matter. If you fail to comply with that Notice, then I will apply for an N1 County Court Order against you, which will result in you accruing Court fees and any other legal expenses and disbursements. This will also lead to a complaint to the Information Commissioners Office as to your suitability to hold a Data Protection licence when you are clearly holding data that is no longer relevant to the account, the account information provider or the data subject, and is being held after a contract has been terminated, by whatever means, whether by default or cancellation."

 

The entry was removed within two days.

 

So, my friends, we have a few extra strings to our bow on this front, go spread the gospel...Credit Report Click link to open in new window.

[vint1954]

Well I thought it was finally:

 

From Car2403, July this year

 

In any case, if they are processing data, it must be accurate and up to date.

 

If there is no agreement that can be enforced, there can be no default under it, therefore a default without an agreement is inaccurate.

 

The CRA's are good at dodging direct questions - for me, attack the creditor, then revert back to the CRA once you've won to have the data removed. It's much simplier. Credit Report Click link to open in new window.

[lickthewallfatboy]

kudos to vint for digging all that up

[vint1954]

kudos to vint for digging all that up

Just found other peoples hard work realy. Most of it by surleybonds

[lickthewallfatboy]

yeah.....but it took time and effort-and now a whole lot more people will see it

[vint1954]

To summarise:

• There is no legal statute that allows CRAs to hold any data about you that is deemed not to be in the public domain. Things like Bankruptcy Orders and Discharges, CCJs, IVAs, etc. are public information, and you cannot stop CRAs holding this information. You can ask them to mark them as settled.
  

• Civil contract details cannot be stored unless you agree in writing. The Data Protection Act states clearly that your account information is personal data and only you have the right to determine who may collate, process and disclose it. We have discussed the ideas earlier, regarding pre and post contract regulation. Once the contract (Agreement ) ends, nearly all the clauses also end. The lender does have some rights to prove monies owed and then pursue them lawfully, other clauses all end, and the lender cannot arbitrarily choose to assume that the disclosure of Data clauses can carry on. This is a proposed change of contract that they would be trying to impose and is therefore unfair and unenforceable under the UTCC Regs.
   
  If they then continue to disclose data about you to a CRA, they are doing so without your permission, as your permission expired in the termination of the contract or agreement.
  

Quote from Andrew1 “You do not give them rights to process your data 'in perpetuity' ie: forever and a 6yr day. Once the contract is ended it is widely agreed within this thread at least, that the obligation to process your data ends. Someone else will come and confirm that, but it is a long battle against organisations which believe this processing for 6 yrs is in statute. The credit industry invented these rules for themselves. They abide by their own rules and regulations not what the law states. If you look at the agreement you signed and pick the words to pieces you'll see what I mean. You will need to have your wits about you and a sheer cold blooded resolve to get them to stop, but it can and has been done. Good luck.”

• The consensus is that once a contract or agreement is terminated, the right to continue to process data to the CRA’s ends.
  

• If there is no “real” signed agreement forthcoming from the creditor, then they cannot process your data at all. No consent under DPA. This would put such Creditors in a very precarious position regarding compensation and fines.
  

• You are also allowed to tell any Data Controller (a company that processes or stores your data) to cease to process your data in any fully-automated process. The Data Protection Act states quite clearly that this includes processes that e.g. “affect your creditworthiness”.
  

• If you decide to opt-out of auto-processing, then you may opt back in again later.
  

• Advice issued by the ICO in relation to Data reporting is incorrect. Best summed up by Car2403's thoughts on the situation
   
  ”The contract comes to an end at the point of Termination after Default. (If you don't comply with the Default Notice the account can - and usually is - Terminated) This is the point where the terms of the contract can be said to have "come to an end", arguably including the terms allowing processing/sharing of data about the data subject.
   
  The Information Commissioners Office's view is an opinion, which, IMHO, is wrong and should be challenged, as there is no legal precedant to support his opinion. The fact this is "industry standard practise" is obviously having an effect on his opinion - an effect which can't be considered in a Courtroom without evidence of its legal effect.”
  

• Experian admit in writing: "We have a legal right to hold information about people that is already in the public domain (e.g. CCJs, IVAs, etc). Other information is collected and supplied under cover of the Data Protection Act 1998 Schedule 2.1 which says that the data subject should have given their consent. ( No agreement no consent vint )This will be collected by your lender or supplier when you apply for a product. A section on the application form will typically direct you to a section on the use of your personal data and will state that "by proceeding you are agreeing to your information being used in this way"
  

“As discussed I can also confirm that as far as we are aware there is no specific piece of documentation or legislation that provides us with the right to retain your information for six years from the date an account is settled.”

“It was agreed throughout the credit industry that six years is considered a reasonable amount of time for account data to be retained from the point that an account is settled in accordance with the 5th Data Protection Principle.”

“This information would only be retained with your consent as per the terms and conditions of the particular account you held.”

 

Please feel free to add to the summary.

[Kamie26]

After reading what all you little stars have posted, let me see if I have got the jist of this.

 

Once a contract has gone in to default, the T & C's in regards to the CRA being able to store your data become nul and void. There is no permision there for a CRA to continue to handle or publish data in regards to that account? Is it also right that I wouldnt have to contact the companies directly that I had a contract with but instead go directly to the CRA to demand the removal from my credit file (I really dont want to have to contact the companys as I would have more fun being attacked by wild monkeys)?

 

Also one more thing, if I request that my account is handled manually, this may stop any one from being able to see my report, but would this not hinder me as well?

 

I am hopefully looking to move in the near future and I need to get my self sorted. Although I have never missed a mortgage payment, there have been several companies that I have has disputes with in the past couple of years and I have told them that they can whistle for their money and they have stuck big fat defaults on my CRF. I'm going to go down the route of asking them for valid credit agreements but it would be handy if I could get the defaults removed straight away.

[babybear39]

In short, sorry to ruin your weekend, but you're not going to get rid of defaults so quickly. the only way to get rid of them is as a bargaining tool in a settlement or through the court.

 

The ICO would be interested in any complaints regarding personal data and it's acuracy.

Edited July 18, 2009 by babybear39
forgot a bit

[vint1954]

After reading what all you little stars have posted, let me see if I have got the jist of this.

 

Once a contract has gone in to default, the T & C's in regards to the CRA being able to store your data become nul and void. There is no permision there for a CRA to continue to handle or publish data in regards to that account? Is it also right that I wouldnt have to contact the companies directly that I had a contract with but instead go directly to the CRA to demand the removal from my credit file (I really dont want to have to contact the companys as I would have more fun being attacked by wild monkeys)?

 

Possibly, once the agreement has been terminated, not just defaulted. This is open for discussion.

 

Also one more thing, if I request that my account is handled manually, this may stop any one from being able to see my report, but would this not hinder me as well?

 

Correct.

 

I am hopefully looking to move in the near future and I need to get my self sorted. Although I have never missed a mortgage payment, there have been several companies that I have has disputes with in the past couple of years and I have told them that they can whistle for their money and they have stuck big fat defaults on my CRF. I'm going to go down the route of asking them for valid credit agreements but it would be handy if I could get the defaults removed straight away.

 

CCA would need to come from the OC

[vint1954]

In short, sorry to ruin your weekend, but you're not going to get rid of defaults so quickly. the only way to get rid of them is as a bargaining tool in a settlement or through the court.

 

The ICO would be interested in any complaints regarding personal data and it's acuracy.

In short, yes maybe.

 

However once an agreement has been ended, it could be a different matter or if the OC cannot provide a signed agreement?

 

Topic is very much open for debate.

 

Has your hunger abated yet? Try G&T, a recognised food stuff.

 

Vint

[lexis200]

Vint, I think I love you:)

 

I appreciate what babybear has said, and I also take it on board, but the posts and letters you have shown have given me renewed hope in starting a fight with them.

 

My OH has just raised an interesting point as I've been relaying the salient points on here.

 

At the moment banks are - among other things - using defaults to get you to pay when you are trying to get CCA's etc. If they then go on and terminate your account and you are still at loggerheads with them, they have then lost their right to process your data, obviously including adding defaults.

 

Seeing as defaults are one of the big things that you try and avoid, they effectively become toothless. So, taking one of my agreements as an example; they had a dodgy agreement which I disputed. After a period of not paying they sent a DN and then terminated my account. I am still arguing with them, but now with a big fat 'D' on my record. If the above logic is correct re the ability to process data ending when the agreement ends (and it sounds solid to me), then the only thing they had that upset me - the 'D' on my file - should not be there. Once it is established that they can not have that 'D' marring my file, I couldn't give tuppence about them trying to chase me for the debt for the next 6 years till it's SB.

 

Does that make sense? More importantly does it sound feasible?

[lexis200]

Just one thing if you wouldn't mind clarifying please vint...

 

Also one more thing, if I request that my account is handled manually, this may stop any one from being able to see my report, but would this not hinder me as well?

 

Correct.

 

Is the 'correct' in response to the first part of that question or the second part?

[shinobi101]

Surely you can't have "enforced consent"? If it is enforced then it is simply not consent.

[lickthewallfatboy]

as I mentioned earlier in the thread,this could be the turning point in the whole issue

 

enforced consent,is by definition,coercion is it not?

[babybear39]

It's glaringly against the CPUTR 2008.

[lickthewallfatboy]

babyb

 

can you post up the relevant bit please?

[babybear39]

I could but I'd be here all morning trying to find it. The gist of it's not giving the consumer a fair choice. The other BB posted it on a thread yesterday and I forgot to bookmark it and it's a long time since I went through the UCPD and the CPUTR

 

If you're a good boy I'll find it for you today or tomorrow