Default? Does this look legal to you?? 7 Day

[Davediggler]

Hi All

I have been trying to get a default removed off my credit file with the following formal notice. I have recieved a response from Black Horse Ltd (Attached) and need some help deciphering the legal mumbo jumbo. I'm not too sure if the respondee has acted correctly and if the default notice provided is written correctly?

Please help as i am currently trying to get a mortgage and this is becoming a large hinderance.

Thanks for all your help

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The Company Secretary

Black Horse Limited

25 Gresham Street

London

EC2V 7HN

Registered in England and Wales with registered number 661204

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 "Black Horse Ltd" indicating a former Black Horse Ltd Loan (now closed) of £XXXXXX. This is recorded as "In Default" albeit being settled on 26/11/2009.

I am contesting that Black Horse Ltd’s 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My written permission allowing Black Horse Ltd to continue processing, or disclosing, my personal subject data was revoked upon termination of that original contract and I hereby reiterate that revocation.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 Black Horse Ltd’s 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, Black Horse Ltd 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 an educated Solution Consultant 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 Black Horse Ltd 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. Black Horse Ltd) 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 Black Horse Ltd has not applied to HM Secretary of State for an order allowing you an exclusion, which leaves Black Horse Ltd 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 Black Horse Ltd’s 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 Black Horse Ltd’s 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), Black Horse Ltd 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 Black Horse Ltd’s Data Controller to assume continued processing rights of my data at his discretion, nor any exemption. I can then only assume that Black Horse Ltd 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 Black Horse Ltd, only gave Black Horse Ltd 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 Black Horse Ltd 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 Black Horse Ltd to continue disclosing my subject data to third parties after the end of the contract. You are no doubt aware that any non-agreed disclosure of personal data to third parties, without express written permission, is a criminal offence under Section 35, of the Data Protection Act.

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

In summary, in relation to this former loan contract, I am formally instructing you, as an authorised officer of the Company, 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 Black Horse Ltd 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 Black Horse Ltd. 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 Black Horse Ltd 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 Company’s 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,

Me

　

　

Statutory Notice pursuant to Sections 10 and 12

Of The Data Protection Act 1998.

Data Subject Notice

To: The Data Controller

Black Horse Limited

25 Gresham Street

London

EC2V 7HN

Registered in England and Wales with registered number 661204

　

Data Subject: Me

Address: My Address

Whereas I have been a customer of Black Horse Ltd 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

Me

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I have worked out the dates for delivery of the Default Notice and conclude that you they exceeded the 7-day statutory notice period as per the rules explained in the Consumer Credit Act 1974. Section 88 sets out the Contents and Effects of a Default Notice. These calculations are subject to the letter being delivered second class.

06/07/2006 Friday - Date of Postage ß Assume Black Horse Ltd posted standard 2nd class post as all recent correspondence unless otherwise proved to the contrary by Black Horse Ltd.

07/07/2006 Saturday - WEEKEND

08/07/2006 Sunday - WEEKEND

09/07/2006 Monday - 1st Working Day after Postage

10/07/2006 Tuesday - 2nd Working Day after Postage

11/07/2006 Wednesday – 3rd Working Day after Postage ß This is Date of Service as above

12/07/2006 Thursday – 1st Clear Day

13/07/2006 Friday – 2nd Clear Day

14/07/2006 Saturday – 3rd Clear Day

15/07/2006 Sunday – 4th Clear Day

16/07/2006 Monday – 5th Clear Day

17/07/2006 Tuesday – 6th Clear Day ß Your Deadline

18/07/2006 Wednesday – 7th Clear Day ß Statutory Notice

Keep up the good work

 

[ATTACH]15903[/ATTACH]

 

[ATTACH]15904[/ATTACH]

[cab1ne]

Hi All

 

I have been trying to get a default removed off my credit file with the following formal notice. I have recieved a response from Black Horse Ltd (Attached) and need some help deciphering the legal mumbo jumbo. I'm not too sure if the respondee has acted correctly and if the default notice provided is written correctly?

 

Please help as i am currently trying to get a mortgage and this is becoming a large hinderance.

 

Thanks for all your help

 

 

 

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

 

 

I have worked out the dates for delivery of the Default Notice and conclude that you they exceeded the 7-day statutory notice period as per the rules explained in the Consumer Credit Act 1974. Section 88 sets out the Contents and Effects of a Default Notice. These calculations are subject to the letter being delivered second class.

06/07/2006 Friday - Date of Postage ß Assume Black Horse Ltd posted standard 2nd class post as all recent correspondence unless otherwise proved to the contrary by Black Horse Ltd.

07/07/2006 Saturday - WEEKEND

08/07/2006 Sunday - WEEKEND

09/07/2006 Monday - 1st Working Day after Postage

10/07/2006 Tuesday - 2nd Working Day after Postage

11/07/2006 Wednesday – 3rd Working Day after Postage ß This is Date of Service as above (first class this is day 1) second class is 4 days not 3

12/07/2006 Thursday – 1st Clear Day (this is day 2)

13/07/2006 Friday – 2nd Clear Day (this is day 3) (second class this is day 1)

14/07/2006 Saturday – 3rd Clear Day (this is day 4)

15/07/2006 Sunday – 4th Clear Day (this is day 5)

16/07/2006 Monday – 5th Clear Day (this is day 6)

17/07/2006 Tuesday – 6th Clear Day ß Your Deadline (this is day 7) second class this is day 5

18/07/2006 Wednesday – 7th Clear Day ß Statutory Notice

Keep up the good work

 

[ATTACH]15903[/ATTACH]

 

[ATTACH]15904[/ATTACH]

 

the attatchments dont work, use photobucket and edit out personal details.

 

cab

Edited January 30, 2010 by cab1ne

[Davediggler]

Thans for the advice

 

 

 

Edited January 31, 2010 by Davediggler

[palomino]

My written permission allowing Black Horse Ltd 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 and proof that it was served on me, then I consider that any default entry on my credit files to be wholly unwarranted.

 

 

hth

[Davediggler]

Hi Palomino

 

can you break down the acronym for me? Still on a learning curve.

 

I think though that you are sayig they have to prove that the notice was delivered. Say a signed delivery record?

Edited January 31, 2010 by Davediggler

[palomino]

It simply means that you can ask them for the proof that it was delivered to you (ie. served). Such a document should have been sent by recorded delivery or special delivery (used to be called registered delivery). Virtually nobody does so.

Hence there is no proof of when the letter was delivered, if at all.

[Davediggler]

Thanks for the advice. I will make sure i include trhis in my return mail.

[Davediggler]

Okay. I sent a mail back to Black Horse asking for proof of delivery for the default notice. I attach the letter below. They claim that they do not have any legal obligation to send a default recorded delivery.

 

I also have a copy of the loan contract. I was hoping that there may be another way to get this default removed. The contract TC's dont say that they will process my data for 6 years after the completion of the contract?

 

There also appears to be PPI on here. Do you think i can make a claim?

 

Does anyone have any advice?

 

 

 

[Nagasis]

from what i can see the DN is ineffective as it was dated 6th Jan 2006 which was a friday

 

Therefore:

if sent 1st class the service date is 10th jan. - tue

if sent second class the service date is 12th Jan - thurs

 

clear days starts the day AFTER service.

 

so the first clear day for 1st class is 11th jan - wed - remedy date should be 18th jan

first clear day for second class is 13th - Friday - remedy date should be 20th jan.

 

none of the above give a clear 7 or 14 days to remedy breach as the remedy date given is 17th jan

Edited February 19, 2010 by Nagasis

[Davediggler]

Thanks Nagasis

 

I would think they send the Default 2nd Class. I have been looking at the envelopes from the recent correspondance and everything seems to be 2nd class.... 2nd class post from a second class company.

 

Is there some legal info on date of service? I havn't seen anything on the CCA or DPA?

[Nagasis]

yes this post is very informative esp as the post relates to a DN dated on a friday like yours

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/196312-invalid-default-notices-2.html#post2179695

point 4

 

edit : if they can not prove 1st class then second class is assumed. In either case, it is still ineffective

Edited February 19, 2010 by Nagasis

[Davediggler]

yes this post is very informative esp as the post relates to a DN dated on a friday like yours

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/196312-invalid-default-notices-2.html#post2179695

point 4

 

edit : if they can not prove 1st class then second class is assumed. In either case, it is still ineffective

 

Thanks for the help again. Just had a brief through the info and there is a lot to support my case. Mr Shadow is helping me with another issue i have so appears to be a genius in the eyes of a beginner savvy consumer.

 

Will get on the next letter immediatly and post up once i get a response.

[palomino]

In the letter from Black Horse included in post #8 there are a couple of points that need expanding.

 

1. Black Horse is quite correct that there is no legal requirement to ensure default notices are [actually] delivered. However without obtaining proof of delivery then how can anyone prove that you received it? More importantly what is the point of something where there is no obligation to ensure it is delivered - if it doesn't have to be delivered then why is there an obligation to issue it in the first place?

 

2. If mail is not delivered then it is up to the sender to complain to Royal Mail, not the supposed recipient. I would write to Black Horse requesting them to lodge such a formal complaint with RM.

Edited February 20, 2010 by palomino

[Davediggler]

Sent my response today.

 

All credit companies seem to be shooting themselves in the foot here. They tell you they don't need to prove delivery of the default notice but here i am writing back about service of documents.

 

Its good for us that they give up their rights so easily.

 

Lets see what bull they try feeding me on their response.

 

Also sent an additional letter about mis-sold PPI. Lets see what they think about that.....

Edited February 22, 2010 by Davediggler
PPI info

[Davediggler]

Hi all,

 

After having a bit of a clean up last i found some old Black Horse letter's. Thankfully they pretty much guarantee that post being sent at the time was second class as i have the envelopes.

 

Unfortunatly for them its brought about another issue:

 

The total of the collectable debt was £791.87, however the letters i have found have additional charges. I include the first of these letters below. The next letter i have is for £906.87. When i finally came to pay off the debt at the end of last year i actually paid £1,297!!

 

Whats the law on these charges. Can i claim them back?

 

 

[havinastella]

Hi Dave,

 

Yes you can easily reclaim all the charges.

 

Also, I think you have confused the whole issue of 'defaults'

 

A default notice sent is a legal requirement because you are behind with payments.

 

A 'default' on your Credit record is a completely different entity.

 

Jogs

[Davediggler]

Hi Jogs,

 

Thanks for the advice.

 

Can anyone tell me what the process is for claiming these charges back. How do i go about finding how much additional they have actually charged me?

 

I also disagree with your comment's. I may have buggered up my credit file but if Black Horse Ltd don't accept my offer of payment and want more then all i could do was run and hide.

 

Now the boots on the other foot. If they didn't follow the rules set out, namely the service of documents statute then isn't it my job as a consumer to fight this?

 

I don't want to get in to an debate but..... well i'l leave it there before i start to rant....

Edited March 2, 2010 by Davediggler

[havinastella]

Hi Jogs,

 

Thanks for the advice.

 

Can anyone tell me what the process is for claiming these charges back. How do i go about finding how much additional they have actually charged me?

 

I also disagree with your comment's. I may have buggered up my credit file but if Black Horse Ltd don't accept my offer of payment and want more then all i could do was run and hide.

 

Now the boots on the other foot. If they didn't follow the rules set out, namely the service of documents statute then isn't it my job as a consumer to fight this?

 

I don't want to get in to an debate but..... well i'l leave it there before i start to rant....

 

 

Unfortunately, you can rant all you want, ranting won't change things. As I have pointed out, the 'TWO' issues of 'Defaults' are completely seperate to each other.

 

Now, thats not to say you cannot do anything about the default on your Credit files. Because, if they have issued a default on your records for an amount you did not owe, you can take steps to this this removed.

 

I'd SAR Blackhorse and this will confirm all the payments made to them. You can then work out, what extra you have paid them and ask for those charges back.

 

They will probably say no, in which case you Issue Court papers for the charges and also make it a point of the claim, that you require the default to be removed.

 

Sorry to hear you disagree with me

 

 

JOgs

[Davediggler]

 

Now, thats not to say you cannot do anything about the default on your Credit files. Because, if they have issued a default on your records for an amount you did not owe, you can take steps to this this removed.

 

 

The problem is that i did owe the debt. Fair enough. Not all of what i have paid is money owed so i will take your advice and SAR them and follow this route.

 

My whole default removal argument is based on the fact that they sent a default notice and didn't give me the whole 7 days rectify period. They actually came up a whole 3 days short.

 

Creditors are always preaching the CCA and DPA so when there is a loop hole should we not be trying to challenge it? If no one tries then the creditors win like they have been doing for years.

 

I'm not trying to write a mission staement here but were all trying to make a better life for ourselves on this forum and i owe it to myself and my girlfriend to try and improve my credit. I want a mortgage but am still paying for being made redundant years ago.