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Defaults - a proposed method for removal and the full template letter

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Basic things to remember about this whole process:

 

a) Remember that the three Credit Reference Agencies (CRAs), Experian, Equifax and CallCredit were not constituted by an Act of Parliament. They hold no official Govt. power even though they like to think they do.

 

b) The CRAs are corporations who simply have the technology to store vast amounts of data and have been doing so for years.

c) The banks and lenders supply them with information about your accounts not because they are legally allowed to, but simply because YOU agreed to it via your contract.

d) CRAs are allowed to hold any data about you that is deemed in the public interest or 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, but they do have legal right to hold JUST these on their records because there are actual Laws that allow them to do so, and judges have signed the Orders in all these types of cases. However, agreement 'defaults' do NOT come under those Laws, unless they have been progressed to a CCJ, etc.

e) 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.

f) When CRAs reply with “it’s our legal right” they are talking nonsense. The legal to which they refer is simply the ‘lawful right’ because you gave permission. That permission can be withdrawn at any time according to your rights under the Data Protection Act.

You can see more about this in the copy of the Experian letter also here in the sticky section, where thay actually admit that they have no legal authority and that there is no six year 'rule'.

g) 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”. The actual clause is in the template letter.

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

i) To ask a Data Controller to do anything you want them to do, including requesting bank statements, you send what is called a Data Subject Notice – you are known in the Act as the Data Subject – i.e. the person to whom the data refers.

j) Data is anything on computer disk, paper, etc., that can identify you as a individual person. “all 34-year-old architects” is not personal data, but “Mr A N Other, a 34-year-old architect from 16 Acacia Avenue, Anytown, AnyPostalCode” is personal data as it can identify a particular person.”

k) Your contract and all transactions relating to the running and administration of your account is deemed your personal data, as these may be subsets referenced by an account number that, in turn, can be linked to you.

l) All Data Controllers have a duty to protect your data, and must hold a Data Protection Act licence (issued by the Information Commissioners Office) to hold and process data. However, this licence does not allow them to disclose data without your express written permission – it is a criminal offence to do otherwise, except for reasons of national security, taxation, health, etc.

 

There is loads more on the Data Protection Act specifics and I might edit and add to this post as time goes by. The above is to give you the basics and the understanding of how to use this in the method below.

 

The Default removal method.

My contention is simple…

1) Data Controllers (e.g. the banks, CRAs) have no legal right to collate, store, process or disclose your data without your permission, except data clearly in the public domain.

2) But, you give that right to them when you sign your contract – most paperwork includes clauses such as “You allow us to disclose details about the conduct of your account to CRAs, etc….”.

3) That contract becomes Law under contractual LAW…however it is still under the ultimate authority of English Law. Any disputes have to be negotiated or referred to Court for a decision.

4) Once the contracts ends, nearly all the clauses also end. The lender does have some rights to prove monies owed and then pursue them lawfully, but my argument is essentially that 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 are trying to impose and is therefore unfair and unenforcable under the UTCC Regs.

5) 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.

6) You can then serve them with a Statutory Data Subject Notice asking them to desist from doing so.

7) The Data Controller then has 21 days in which to conform to your request, or write to you giving lawful reasons as to why your request should be exempted. To do so, he would have to prove a legal Statute, a Common Law case, etc… but none exist. So, they simply turn around (especially the CRAs) and say that they have a “legal right”. They don’t…they are simply stating that they believe that they have a ‘lawful right’ under the contract Law that you agreed when you signed the contract.

They also use other nonsense expressions such as “under credit law”, “six-year permissions”, etc… There is no credit law permission, and the Data Protection Act over-rules contractual Law when it comes to your rights.

The six-year ‘rule’ that they so liberally quote, is them simply getting confused with County Court orders… such as bankruptcy, CCJs, that only a judge can sign.

NOTE: Banks and CRAs cannot sign Court orders.

8 ) If the Data Controller fails to show reasonable cause to try and exempt your Notice, then you may go straight to the Information Commissioners Office and ask them to enforce your Notice. You will need to put all the correspondence together with a covering letter.

9) You may apply for compensation, only if the incorrect data has caused you financial loss, or other significant inconvenience whilst the incorrect data was used in a process that affected you.

10) You can also go straight to the Court and issue a Court Claim to ask a judge to enforce your Notice. You will have to pay a fee, but you can claim this back from the Data Controller if you win. You can also apply for compensation on your Claim – again reasonable costs, damages, etc.

11) Damages claims have to be very clear that they caused inconvenience and hardship or distress, so use sparingly. At the end of the day, your primary mission is to remove what you consider is adverse data, not start going off on one for compensation, so stick to your basics first.

 

 

Finally, a few simple rules, that will help your case appear more professional:

1) Check your spelling and grammar – it is shocking to see some very basic mistakes, and it doesn’t give a very good impression if you make basic errors like your and you’re, there and their, etc.

2) Send ALL letters (without exception) via Recorded or Special Delivery, and keep a copy, and keep the Post Office receipts and stamped labels. They CANNOT argue if you can prove they got the letter. If you fax anything, keep the send confirmation sheet (sometimes called the transmission journal) – press the button the machine to print one.

3) If you phone anyone to discuss the case, use a program like SkyLook (available on this website) to record your calls. Note that it is NOT illegal to record your own telephone conversations – even though the uneducated Muppets in call centres try telling you otherwise. After all, they often record your conversations!

 

The best of British luck, and let’s see if some more wins start coming through – I am working on other aspects of the Data Protection Act and will keep you informed as to how they progress. And remember, that most of this really gets down to who blinks first... they know they don't have a prayer, which is why they are coming up with grasping-straws excuses. Be prepared to take it to Court, or at least the Information Commissioners Office...who knows, we could even end up with a case law in our favour if it went to the right Court.

 

So, to the letter itself…

 

The following was an amalgamation of several previous letters that I had sent for my own cases. This version was written for a friend who is having hell with a bank that adamantly refused to remove a default, and the CRAs involved had written back with many stupid replies that didn’t mean anything, or answer the issue.

 

Within 72 hours of it being received at their Head Office, we received a letter saying that they were happy to remove the default from the credit files, although denied any liability for distress, or breach of duty in relation to the Data Protection Act.

 

 

The Company Secretary

GrabItAll Bank plc

Large Ugly Building with nice view of Thames

Somewhere in London

Postcode

[must go to their company registered address!]

 

 

[Date]

 

 

 

Dear Sir,

 

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 “xxxxxxxxxxxxxx plc” indicating a former xxxxxxxx Loan (now closed) of £x. This is recorded as “In Default” albeit showing a settlement date of dd/mm/ccyy.

 

I am contesting that xs’ 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 x 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, as required by the conditions of the Consumer Credit Act 1974. Unless the Bank 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 xs’ 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, x 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 secretary for a major PLC, 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. x) 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 xs’ Data Controller may invoke his perceived exemption to the DPA, 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 xs’ 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), x 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 DPA 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 DPA 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 xs’ 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 x 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 x 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 DPA.

 

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 x Bank 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 DPA.

 

 

I trust that I have made my position clear, and that x 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,

 

 

 

 

 

 

 

 

 

 

 

 

 

Statutory Notice pursuant to Sections 10 and 12

 

 

 

of The Data Protection Act 1998.

 

 

Data Subject Notice

 

 

 

 

 

 

To: The Data Controller

GrabItAll Bank plc

Large Ugly Building

Somewhere in London SomePostalCode

[replace with registered company address]

 

 

Data Subject: [your title and full name]

 

 

Address: [your full postal address inc. postcode]

 

Whereas I have been a customer of x Bank plc and whereas I consented in my contract with you to the disclosure by you of certain data to third parties, at no time did I consent and neither was it within the contemplation of the parties to the contract that I did consent to the processing by you of that data in any manner which would be unfair or inaccurate or which in any way would breach The Data Protection Act 1998.

 

Therefore, take notice that I require that you cease from processing within twenty one days of the receipt by you of this Notice, or else that you do not begin to process any personal data of which I am the subject insofar as that processing involves the communication or passing of personal data of which I am the subject to any third party and insofar as the said data relates wholly or in part to the implementation by you of alleged defaults or contractual breaches or breaches contrary to The Common Law.

 

This Notice is given on the grounds that the processing or continued processing by you of the said data will be likely to affect my credit rating and my reputation and cause substantial damage and/or substantial distress to me and my family members in addition to that which has been caused to date. And that as the processing of the said data in the way referred to in this Notice would violate both the Principles and Data Subject’s rights of The Data Protection Act 1998, to do so would be both unwarranted and unlawful.

 

Signed

 

 

 

[sign it in pen]

 

 

[put your title, initials and surname]

 

Dated this [something -th] day of [month], in the year two thousand and [year].

 

Please note I am not a lawyer and this is given infomally and without prejudice.I am unable to answer individual questions by PM.

  • Haha 9
  • Confused 10

I'm often a sarcastic SOB and speak my mind (and I don't do PC at all), but I have a laugh as I go. I won't be intimidated, and I don't take prisoners... so live with it, or go get yourself a humour implant :p

 

Copy of Law book from Amazon…£19.95, Refund Request stamp...32p, LBA stamp...also 32p, Court fees...£750.00,

The look on the bank's barrister's face, when they lost the '£25k Mother-of-all unfair charges' cases...(plus his £8k+ of costs)... Priceless!

 

The legal bit: These are my opinions and own view of legislation and process. I accept no liability whatsoever for any outcome as a result of anyone invoking any or all of the advice given - clarify your own personal stuation with an insured legal professional.

Saying that, I've used these methods against many of these corporate crooks:evil: and won hands down!:D

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.

Thread locked, and posts removed. If you had posted a question here, please post it in your own thread, or start a thread if you don't have one.

.

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I have some updates to make to this template including a new layout of the letter, plus another letter that you can use in more difficult cases. Please don't post to this sticky thread regarding your own cases, but create a new thread below. Thanks.


I'm often a sarcastic SOB and speak my mind (and I don't do PC at all), but I have a laugh as I go. I won't be intimidated, and I don't take prisoners... so live with it, or go get yourself a humour implant :p

 

Copy of Law book from Amazon…£19.95, Refund Request stamp...32p, LBA stamp...also 32p, Court fees...£750.00,

The look on the bank's barrister's face, when they lost the '£25k Mother-of-all unfair charges' cases...(plus his £8k+ of costs)... Priceless!

 

The legal bit: These are my opinions and own view of legislation and process. I accept no liability whatsoever for any outcome as a result of anyone invoking any or all of the advice given - clarify your own personal stuation with an insured legal professional.

Saying that, I've used these methods against many of these corporate crooks:evil: and won hands down!:D

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I have some updates to make to this template including a new layout of the letter, plus another letter that you can use in more difficult cases. Please don't post to this sticky thread regarding your own cases, but create a new thread below. Thanks.

 

Where are the updates please Surly?


Disclaimer: Anything I write in these forums is my personal opinion and offered without prejudice. If in doubt, please seek independent legal advice.

 

*If what I have told you in this post has helped, please press the star at the bottom left and tell me!!*

 

My charges claims:

un1boy vs egg *SETTLED* | Un1boy vs LTSB-SETTLED | un1boy vs Black Horse-SETTLED | Un1boy v Smile *WON* | un1boy v HSBC - SETTLED! | Un1boy's HSBC CC - SETTLED! | Un1boy vs Co-Op *SETTLED* |un1boy vs Co-Op CC *SETTLED*

 

Default removals:

un1boy v Equifax - Default removal

un1boy vs Experian - Default removal

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Dude give him a chance: 'updates TO make' (not MADE)!

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Huh???:???:

Which part of ...

 

Please don't post to this sticky thread regarding your own cases, but create a new thread below. Thanks.

 

... did people NOT understand??? :roll:

 

When the updates are done, I'll ask Mods to remove all but the template.


I'm often a sarcastic SOB and speak my mind (and I don't do PC at all), but I have a laugh as I go. I won't be intimidated, and I don't take prisoners... so live with it, or go get yourself a humour implant :p

 

Copy of Law book from Amazon…£19.95, Refund Request stamp...32p, LBA stamp...also 32p, Court fees...£750.00,

The look on the bank's barrister's face, when they lost the '£25k Mother-of-all unfair charges' cases...(plus his £8k+ of costs)... Priceless!

 

The legal bit: These are my opinions and own view of legislation and process. I accept no liability whatsoever for any outcome as a result of anyone invoking any or all of the advice given - clarify your own personal stuation with an insured legal professional.

Saying that, I've used these methods against many of these corporate crooks:evil: and won hands down!:D

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Can anyone help me with a default issued by 02 for believe it or not a sum of £28.i am trying to get it removed and I dont know which way to turn.This default was issued without my knowledge which 02 have admitted but seemingly they are legally allowed to do this.Even though it is for such a small sum and has now been satisfied(as soon as I found out about it through my experian report) I know have a very low credit rating.I have contacted Trading standards.Experian and the Information Commisioner and everyone has said 02 are within their rights.I have sent many letters to 02 but they will not remove it.Can anyone help as I was recently turned down by my bank for a joint account because of this and it will remain on my account for 6 years.HELP

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Hi I have put a thread in general consumer issues under NEXT- Default removal. I would like some advice on this if anyone is able to advise. S.K

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Hi, I have a problem with Halifax as they have ignored my requests to stop processing my data. They have not even responded at all. I am writing once more on Tuesday giving 7 days to comply else I shall be filing in court.

 

I wanted to prepare my court claim form as I don't see them complying.

 

Has anyone drafted a POC for this type of case yet?

 

Tom

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hI TOM what do you mean exactly by processing your data.

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Hi, I have a problem with Halifax as they have ignored my requests to stop processing my data. They have not even responded at all. I am writing once more on Tuesday giving 7 days to comply else I shall be filing in court.

 

I wanted to prepare my court claim form as I don't see them complying.

 

Has anyone drafted a POC for this type of case yet?

 

Tom

 

I have sent the request twice recorded, both times it was lost. So I will need to draft POC also shortly.

 

If you manage to find anything please PM me.

 

Thanks


First Direct, £4031 Recovered

Halifax, £953 Recovered

MBNA Credit Card, £120 Recovered

American Express, £160 Recovered

Coming Soon......

Blackpool Council, £190 in unlawful parking tickets

Carstoppers. £50 from the cowboy clampers

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Can I ask a question please, which letter do I send to my bank to get the default removed from my file, the first letter or the second?

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both! one is the letter explaining the positon and the second is the formal notice. make sure the second letter is on a seperate sheet of paper and also send them in the same envelope

 

ps i'd also start your own thread so you can let us know how your getting on

 

good luck

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Sorry, only just seen the new posts, I got delayed in sending my letter so it went today.

 

I origionally wrote revoking my permission from them to process any of my data, and more specifically with the CRAs.

 

I'm gonna read up more on the DPA and start drafting my POC from there.

 

Tom

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Hi,

 

I received an email back from Experian as I had told them I had provided notice to Halifax and also to them.

 

This was their response:

 

24 April 2007

Dear Mr Kirk

Thank you for your e-mail received 13 April 2007, which has been brought to my attention in the Directors' Office.

I would firstly like to make you aware that we are unable to open the attached statutory notice and would ask that you please re-send it.

I note that you have also served a Statutory Notice under Sections 10 and 12 of the Data Protection Act 1998 on Halifax. I would draw your attention to the exact wording of Section 10 of the Data Protection Act 1998 as set out below:

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.

(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.

(3) The data controller must within twenty-one days of receiving a notice under subsection (1) ("the data subject notice") give the individual who gave it a written notice-

(a) stating that he has complied or intends to comply with the data subject notice, or

(b) stating his reasons for regarding the data subject notice as to any extent unjustified and the extent (if any) to which he has complied or intends to comply with it.

Section 10(1) of the Data Protection Act 1998 provides you with the right to request that a company stop processing your personal data for specified reasons that are likely to cause you unwarranted damage or distress.

Section 10(3) of the Act advises that a company must give you notice in writing within 21 days of receiving a notice under Section 10(1), the action they have chosen to take and their reasons for doing so. Section 10(3)(b) of the Act provides a company with the right not to comply with your Notice as long as they can justify their reasons for doing so.

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.

"The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case because of prejudice to the rights and freedoms or legitimate interests of the data subject."

We have been informed that the Information Commissioner takes a wide view of the legitimate interests and considers that it is in the interests of other creditors to make informed lending decisions.

The fifth data protection principle states that:

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

Account information is held by credit reference agencies for a period of six years after the account was last active. In addition to current credit commitments, the preceding six years of an individual's credit history is taken into account by credit grantors when applications for credit facilities are assessed. As a consequence, this historical information is relevant to the purpose of credit referencing and by holding this data the Information Commissioner has confirmed that the credit reference agencies do not appear to be in breach of the fifth principle.

In the context of what you are attempting to achieve Section 12 of the Data Protection Act 1998 may not be relevant in this instance. I have copied the full text of Section 12(1) below for your reference.

12. - (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.

As a credit reference agency, Experian does not make any automated decisions with regards your creditworthiness or any of the other criteria that are specified within Section 12(1). Unless you make an application to Halifax they also would not make any automated decisions with regards your creditworthiness.

I have highlighted the relevant part of Section 12(1) that clarifies that it is only when a decision is made by automated processing that you are entitled to have that automated decision reconsidered (s.12(2)(b)).

In view of your comments about the Halifax current account, I am writing to them for you. This is because I cannot amend your report without their consent. I will let you know what they say as soon as they reply.

While I investigate your comments, I am adding the following statement to the entry you have queried.

"THE ACCURACY OF THIS DATA HAS BEEN DISPUTED BY THE INDIVIDUAL CONCERNED AND WE HAVE NOW CONTACTED THE SUBSCRIBER. CARE SHOULD THEREFORE BE TAKEN WHEN USING THIS ITEM OF DATA TO ASSESS THE CREDITWORTHINESS OF THE INDIVIDUAL CONCERNED."

Your report will change in the next seven days. Please use this letter if you need proof in the meantime.

I am telling all the companies that have searched your credit report in the last six months of the change to your information.

If you have any further queries, please feel free to contact me directly either by e-mail at lee.hancock@uk.experian.com, by telephone on 0115 9055453 or by writing to me at the following address:

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

Yours sincerely

Mr L J Hancock

Consumer Compliance Executive

Directors' Office

 

 

Am I right in thinking that the paragraph:

 

"The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case because of prejudice to the rights and freedoms or legitimate interests of the data subject."

We have been informed that the Information Commissioner takes a wide view of the legitimate interests and considers that it is in the interests of other creditors to make informed lending decisions.

 

Allows them to continue processing even though I have informed them not to?

 

How do I reply to them?

 

Tom

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Hi Tom,

I'd probably say it would be better if you started your own thread explaining the story rather than this one which is a sticky.

 

what people are probably going to ask is what did you send halifax and experian and have you settled the defaulted account?

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Hi, I have held off on Halifax for the time being as I want to tackle Barclays first.

I have started a thread:

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/89482-fbnts-barclays-get-default.html#post814760

 

But barclays have replied with a letter from the ICO saying that the statutory notice does not apply.

 

Any help is appreciated!

 

Tom

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Hello All!

Apologies for adding to the thread but i am new to the site and was unsure about where to post to get advice on this subject.

 

Any advice would be really appreciated.

 

I recently took steps to try and have a default removed from my account. I had an overdraft passed from HSBC to Metropolitan in 2003 for £1017 which was subsequently settled 2 months later.

The default has remained on my account and has recently prevented me getting credit. I decided i would inform them that i didn't receive the letter informing me that the account would be passed to default in the format outlined on the template letters within this and many other sites.

(detailed below)

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

 

Dear --------

 

After recently obtaining a copy of my credit file from Experian I was concerned to note that your company has placed a "Default" notice against an account in my name.

Further to this I have no recollection of ever receiving such a notice, and I therefore require you to substantiate this data at your earliest convenience.

1. You must supply me with a true copy of the alleged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit). Your obligation also extends to providing a statement of account. I enclose a £1 postal order in payment of the statutory fee, PO Serial Number 1587 716732.

2. You must supply me with a signed true and certified copy of the original default notice

3. Any deed of assignment if the debt was sold on

I would request that this data is provided to myself within the next 28 days, if you are unable to provide this data then I must insist that it is removed from my files as unsubstantiated.

 

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

They replied

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

 

Thanks you for your letter dated 5th July 2007

 

With regards to the agreement you would have signed when opening your account, i note from our records that your acount was opened more than 6 years ago. Under the Data protection act, we are only obliged to keep information for a period of six years and therefore do not hold the agreement in ourt records.

 

Our records also indicate that a final demand was issued on the 20th of December 2002 and a letter was sent to you advising you of this. We are not obliged to keep records of this letter.

 

Your account was closed on 23rd January 2003 and the balance referrred to Metropolitan collection services. Therefore, there is no deed of assignment as the debt was not sold.

Metropolitan Collection Services is a part of the HSBC Group PLC.

 

I trust this clarifys matters.

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

 

NO - it does not.

I thought the whole lever to getting a default removed lay in the fact that i didn't receive the original paperwork informing me of the default but in this letter they tell me they are not obliged to keep a copy!!!!

 

Please help-my head hurts:shock:

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Hello All!

Apologies for adding to the thread but i am new to the site and was unsure about where to post to get advice on this subject.

 

Any advice would be really appreciated.

 

I recently took steps to try and have a default removed from my account. I had an overdraft passed from HSBC to Metropolitan in 2003 for £1017 which was subsequently settled 2 months later.

The default has remained on my account and has recently prevented me getting credit. I decided i would inform them that i didn't receive the letter informing me that the account would be passed to default in the format outlined on the template letters within this and many other sites.

(detailed below)

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

 

Dear --------

 

After recently obtaining a copy of my credit file from Experian I was concerned to note that your company has placed a "Default" notice against an account in my name.

Further to this I have no recollection of ever receiving such a notice, and I therefore require you to substantiate this data at your earliest convenience.

1. You must supply me with a true copy of the alleged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit). Your obligation also extends to providing a statement of account. I enclose a £1 postal order in payment of the statutory fee, PO Serial Number 1587 716732.

2. You must supply me with a signed true and certified copy of the original default notice

3. Any deed of assignment if the debt was sold on

I would request that this data is provided to myself within the next 28 days, if you are unable to provide this data then I must insist that it is removed from my files as unsubstantiated.

 

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

They replied

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

 

Thanks you for your letter dated 5th July 2007

 

With regards to the agreement you would have signed when opening your account, i note from our records that your acount was opened more than 6 years ago. Under the Data protection act, we are only obliged to keep information for a period of six years and therefore do not hold the agreement in ourt records.

 

Our records also indicate that a final demand was issued on the 20th of December 2002 and a letter was sent to you advising you of this. We are not obliged to keep records of this letter.

 

Your account was closed on 23rd January 2003 and the balance referrred to Metropolitan collection services. Therefore, there is no deed of assignment as the debt was not sold.

Metropolitan Collection Services is a part of the HSBC Group PLC.

 

I trust this clarifys matters.

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

 

NO - it does not.

I thought the whole lever to getting a default removed lay in the fact that i didn't receive the original paperwork informing me of the default but in this letter they tell me they are not obliged to keep a copy!!!!

 

Please help-my head hurts:shock:

 

Hi

 

If this is a bank account (with an overdraft) then they are NOT regulated by CCA so there will be no agreement so I don't understand what they are saying....

 

however, I would exploit their comments and pursue their comments re 6 years and ask them to tell you where within the DPA does it specifically state that there is a 6 year limit - there isnt one!! what they really mean is that they are following an industry standard whereby they allegedly destroy docs older than 6 years - but it is not the law!!!!

 

Push them - have you issued a formal full SAR? PM me if you need one.

 

Z


[sIGPIC][/sIGPIC]

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Also - the 6 years is not Data Protection, it is goverened by the money laundering regulations

 

Under these, they are required to hold on to all account data for 6 years AFTER the account is CLOSED


omnia praesumuntur legitime facta donec probetur in contrarium

 

 

Please note: I am not a member of the legal profession, all advice given is purely my opinion, if in doubt consult a professional

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So i have a good case for getting the default removed then?

I just phoned the HSBC on my dinner and got told to speak to Metroplitan but i said 'no - its you who placed the default so only you can remove it'

Then went through the letter and got infomred they definately cannot provide me with a copy of the original letter. If they cannot they must remove, correct?

What do i do next?!!!

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Dear -----

Your Ref : --------

Account number - ------------

Sort Code – ----------

Thank you very much for your letter dated 12/07/2007.

You, however tell me information that i already know. I have seen my Credit References and the notice of 'Default' and then 'Satisfied' next to the item relating to the HSBC bank.

It is the 'Default' notice that I am very concerned about because I have no recollection of ever receiving such a notice.

The questions in the original letter dated 05/07/2007 (letter 1) specifically relate to this point and request you to substantiate this information. Could you therefore either provide me with a copy of the default notice or consider removing this reference from my account. If you cannot provide evidence (i.e the original default notice) then the default is unsubstantiated and should be removed.

If you do not feel that you are in a position to do this i will have no further option but to refer this case to the Information Commissioner Office, Banking Ombudsman and Trading Standards as appropriate.

Can you also confirm where exactly within the Data Protection Act does it specifically state that there is a 6 year limit on stored Data as I think you may be confusing this with the industry standard

It is your duty to comply with my requests under the law within 28 days of this letter or you risk being in breach of your duties under Section 78 of the Consumer Credit Act.

Yours faithfully

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

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