Westcot Default

[shehasredhair]

Ok i have now found out that Voadafone's debt was sold to Westcot who update my account (credit) I have satisfied the debt with Westcot-how do I go about removing the default notice?

[t-star]

The default won't be removed in normal circumstances but should show as satisfied on your credit file.....

 

t-star

[shehasredhair]

Is there any chance there can be a way of removing it

[hungrybear]

Is there any chance there can be a way of removing it

 

 

Technically yes, though its a bit hit and miss whether it works or not. Under the DPA Wescot did not have your permission to process you data - vodafone sold the account confirming the agreement in which you gave this authority was terminated.

 

Depends how much of a pain in the backside fight your uo for really

[shehasredhair]

I am really up for fighting-need to get rid of it if there is ever any chance of getting a mortgage

[hungrybear]

First step is a letter under section 10 of the DPA along these lines:

 

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/586-legal-notice-issued-under-section-10-of-the-data-protection-act-1980

[shehasredhair]

What happens after this letter is sent?

[hungrybear]

What happens after this letter is sent?

 

 

Usually?

 

they come back with some bull about you have not stated what grounds under section 10 followed by a load of verbiage.

 

Then you 'kick it upstairs to the double digit IQers' and send an LBA to the Company Secretary.

 

- that might work

 

Then you issue an N1 county claim form and play judge roulette.

 

- Just telling it like it is, dont want to pretend it's easy or a dead cert.

 

Before you go any further,

 

How much is the default for?

How long ago was it?

Is it marked as satisfied?

[shehasredhair]

The default is for 342.00 - it was registered as defaulted in 2006 - I paid it this month and it is marked as Default-Satisfied on my credit account.

[shehasredhair]

Sorry here is what appears:

Company name: WESCOT SPV LIMITED

Account type: Communications

Started: 26/11/2001

Default Balance: £393

Current Balance: Satisfied

Defaulted On: 02/05/2006

File Updated for the Period to: 06/12/2009

[hungrybear]

Sorry here is what appears:

Company name: WESCOT SPV LIMITED

Account type: Communications

Started: 26/11/2001

Default Balance: £393

Current Balance: Satisfied

Defaulted On: 02/05/2006

File Updated for the Period to: 06/12/2009

 

 

If you are looking at this as a barrier to buying a house then to be honest I seriously doubt it is and before going further I would do 2 things

-get an explanation appended to the default - make it 'good' - you know what I mean;). The reason I did not honour this contract at the time was because the dog ate my homework.

-speak to a mortgage broker tell him/her the truth and see what they say.

 

If that's the only skeleton then it's a very small closet

 

Even in the current market I cannot see £400 that's satisfied stopping you buying a house.

 

- If I'm wrong though I'm happy to help you all I can get it removed if poss, just looking at the best route to the solution you want.

[shehasredhair]

Well, I have been advised by a mortgage advisor that it is extremely difficult at this time to get a mortgage with defaults-he put an application thru Abbey and that was refused-i think places are only taking defaults if they have been satisfied over 3 years ago.

[hungrybear]

Normally a mortgage broker does not need to put an application in to offer true advise.

 

OK there's no point in us playing 'broker advise tennis'. If you want to attack this head on then I am happy to help. Post on here again tonight. That way I will get a reminder in my inbox in the morning and I'll post up the first letter for you to send - but like I said before no promises, just the best advise I can offer. Fair enough?

[shehasredhair]

That will be great I would really appreciate any help...If you could advise me the best letter to send to Westcot I would be v.grateful:)

[hungrybear]

consider it done, just cannot be bog to get my 'too serious head on' tonight- fairy snuffles I hope?

[shehasredhair]

Great thanks a lot!!! looking forward to any help

[hungrybear]

That will be great I would really appreciate any help...If you could advise me the best letter to send to Westcot I would be v.grateful:)

 

 

I'm having a dig round see what I can come up with.

 

- just so you know you're not forgotten:p.

[shehasredhair]

THANKS!!!! Thats really cool

[Seminole]

It might be worth ringing another broker just to make sure that the advice you're getting is correct. The sub-prime mortgage market is pretty dead but I really can't believe that a single satisfied default kills your chances.

[shehasredhair]

i did speak to a couple of building societies and ntwest who said the default had to be satisfied for 3 years

[Seminole]

These guys used to be good in this sort of situ

 

John Charcol Mortgages - Award Winning Independent Mortgage Adviser - Compare the Best Mortgage and Remortgage Rates and use a mortgage calculator

[hungrybear]

Right I can give you information and guidance but at the end of the day it's you responsibility. It's important that you have a read around so that you know what you are up against.

 

Here is the legal situation.

 

You entered into a contract with vodafone. In that contract you will have agreed to them processing your data, which may include passing it to the cra's. Therefore Vodafone have a lawful right to process your data for the duration of your contract with them.

 

Once you default on the contract and do not pay then they may process your data externally because you agreed.

 

However you only gave permission to Vodafone to process you data. At no point did you sign to say anyone else can process your data. Once the debt is sold to Wescot they, in theory, have no legal right to process your data without your consent - although all DCA's do. The certainly have no right to process your data with a third party.

 

Have a read of this:

 

http://www.liverpool.gov.uk/Images/tcm21-118702.pdf

 

which gives a pretty good summary of the position with regards to section 10.

 

 

This is worth a read as its about vodafone and is a good example of the 'letter tennis' that can go on is this type of situation:

 

http://www.consumeractiongroup.co.uk/forum/telecoms-mobile-fixed/22995-vodafone-default-removal-distress.html

 

Here is the link to the 'Famous SurlyBonds' Method:

 

http://www.consumeractiongroup.co.uk/forum/legalities/24013-defaults-proposed-method-removal.html

 

and another method:

 

http://www.consumeractiongroup.co.uk/forum/legalities/11659-how-get-your-default.html

 

The approach I would advise is the one in the surlybonds thread because it think it is very comprehensive.

 

Here's what you need to do.

 

Read everything you can then copy the surlybonds letter into word or the like and tailor it to your situation. The post it on here and I'll tell you what I think

 

And hopefully we can get a couple more opinions as well.

 

That should keep you busy over the weekend!

[hungrybear]

It might be worth ringing another broker just to make sure that the advice you're getting is correct. The sub-prime mortgage market is pretty dead but I really can't believe that a single satisfied default kills your chances.

 

Agreed, especially for a few hundred quid. Maybe add half a point to the interest rate for a bit but no mortgage at all?

 

Maybe all the bleating on the telly is right and the banks are only leading to 'sure things' - I was one of those once and look where that got them!

[shehasredhair]

Thanks! I am on to it!!!

[shehasredhair]

OK this is the letter i have adapted-let me know what you htink:

The Company Secretary

Westcot

PO Box 127

Hull HU2 8HF

 

 

07/12/09

 

 

 

Dear Sir/Madam

REF:xxxxxxxxxxxx

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 “Westcot plc” indicating a former Vodafone Bill of £393. This is recorded as “In Default” albeit showing a settlement date of 06/12/2009

 

I am contesting that Westcots’ 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 Vodafone 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 Westcots’ 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, Westcot 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 Vodafone 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 Westcot 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 Westcot has not applied to HM Secretary of State for an order allowing you an exclusion, which leaves Westcot 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 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 Westcots’ 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), Westcot 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 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 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 Vodafone contract, I am formally instructing you, as an authorised officer of Westcot, 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 Westcot 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 Westcot. 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 Westcot 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

 

 

 

 

 

 

Westcot

PO Box 127

Hull HU2 8HF

 

 

Data Subject: Miss……….

 

 

Address:

 

Whereas I have been a customer of Vodafone 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]

 

07/12/2009