Mr Gayle v 1st Credit

[mister_gayle]

1st of all I would like to say I have been a lurker of this forum for ages now and have gained some great knowledge. Even my mum has used some templates letters from here and done well. So would like to thank you all and if there is a way I can donate then please let me know.

 

I don't have many problems with my credit apart from one account I had with Welcome which is now being looked after by 1st Credit. I honestly dont remember receiving a default notice from them, so seeked the advice of this forum and got the info I needed.

 

I 1st sent the CCA request, requesting my CCA, deed info and default notice. They replied with pretty much automated letter and attached a copy of the agreement.

 

CCA Request response from 1st Credit, as you can see they didn't even respond to my requests for default notice and any deed info.

 

Signed agreement, is this the correct document they have sent ?

 

I rang them (bad mistake) and asked about my letter, they were just so rude and always talking over me. I would suggest to anyone NOT to ring the,. I was asking why the leter they sent made no reference to any deed info and copy of default notice. They kept saying "ive read your letter and we have sent you your CCA" got no where and I said ill be sending another letter.

 

Again seeked the advice and info from this forum and sent 1st Credit this letter. It is quite long, if its best to scan it and upload admin please say. Thanks to ffcous, who I got most of this letter from 8)

 

********************************************

Dear Sirs,

 

Client: 1st Credit Limited

Debt: Welcome Financial Services

Balance: £XXXXXX

Client Ref: CRE XXXXXXX

 

Thank you for your response on behalf of 1st credit dated 12/08/2010.

However I don’t believe you have understood my previous communication dated 09/07/2010. In which I specifically requested the following:

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.

 

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

 

The response given in your letter dated 12/08/2010 only addressed point 1. Points 2 and 3 have been ignored.

 

Due to the nature of this I will now grant you with a further 10 days to complete my request before I take this up with court action which will result in yourselves defaulting and I will make sure the public are aware of this case.

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

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, you are 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".

 

May I also advise you of my findings regarding this so called legal right to place an adverse entry on my credit file for up to six years. One of your colleagues advised me that “it is law to keep a default on file” I was amazed to hear this and that you have staff employed advising customers this incorrect information.

 

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.”

 

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 you is 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. Welcome Financial Services) 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 you have not applied to HM Secretary of State for an order allowing you an exclusion, which leaves you 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 Welcome Financial Services 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 Welcome Financial Services 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.

 

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), Welcome Financial Services 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 your Data Controller to assume continued processing rights of my data at his discretion, nor any exemption. I can then only assume that you are 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 Welcome Financial Services, only gave 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 Welcome Financial Services 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 you 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.

 

In summary, in relation to this former contract, I am formally instructing you, from this day onwards, to:

1) provide me a signed true and certified copy of the original default notice

2) any deed of assignment if the debt was sold on

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

4) 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”;

 

5) cease to disclose any data to any third party including, but not restricted to, Equifax plc, Experian Ltd and Call credit plc; and

 

6) instruct Equifax plc, Experian Ltd and Call credit plc to remove all data pertaining to your records on me with regards to account number 1616691.

 

7) 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 appear in Court and I will be seeking Order to the effect above. I may also be utilize my 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 you will now make a serious effort to understand its legal obligations and effect the changes requested. Should you be in any doubt as to your 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.

I would appreciate that if you cannot deal with this matter yourself, then maybe you should ask your superior to review this case. If this does go to court I will win and I will publicly embarrass you, I do not mean for this to come across as a threat I just feel that the public should know how you are treating customers.

 

Yours Sincerely,

 

 

 

 

Me

 

 

********************************************

 

 

I rang a few days after they have signed and received my letter for an update, after my last experience with them on the phone I knew not to get drawn into a conversation with them. I just wanted to make sure that it was being looked into. The person I spoke to again said "we have sent you your CCA, what else are you asking for" I asked her if she had read the WHOLE of the letter as she clearly hadn't. She gave a smart alec remark "its 6 pages long, course I have not read it" I advised its maybe a good idea to read it, after a few mins she came back to me and sounded very different and said that the compliance team would get back to me. I think she realised I could not be fobbed off and when stating DPA references knew I knew what I was talking about.

 

It seems like 1st Credit either have no idea what they are doing or just plain being awkard, as this week they sent me two letters. The 1st was just an exact copy of the CCA request response, the second letter was actualy from someone in the compliance dept.

 

1st Credit response to my second letter

 

So CAGers I need your help in what I can do or how to respond.

 

Is it true about 1st Credit not having the default notice, surely if they are looking after the account for Welcome Finance they would have all documents ?

 

Also is it true with what 1st Credit have said about processing my data /

 

Thank you in advance.

Edited September 3, 2010 by mister_gayle

[mister_gayle]

LOL how do I make the images appear larger, so you can see my letters

[harrassed senior]

Firstly, remove your name from the bottom of the letter, and make sure there are no identifying info on here.

[harrassed senior]

My own opinion is that the letter is far too long, they will, in all probability toss it to one side, unread and carry on with their threats. However, until we can see the CCA it is hard to comment.

[mister_gayle]

My own opinion is that the letter is far too long, they will, in all probability toss it to one side, unread and carry on with their threats. However, until we can see the CCA it is hard to comment.

 

How do I make the CCA viewable, I have uploaded it but it appears very small

[mister_gayle]

[harrassed senior]

One way is the following:

 

Go online to Photobucket and create your free online Albums.

 

Scan and then upload your documents to Photobucket and if not already done, remove identifiers with their manipulation tools.

 

Double click your item and a box of options will be displayed - copy the 4th one which starts with IMG.

 

Paste that link in your post and it should show at a readable or adjustable size.

[mister_gayle]

CCA -

[mister_gayle]

1st Credit response to my 2nd letter

 

[mister_gayle]

Is it true about 1st Credit not having the default notice, surely if they are looking after the account for Welcome Finance they would have all documents ?

 

Also is it true with what 1st Credit have said about processing my data ?

 

Can someone please advise on how I should respond. Thanks

[mister_gayle]

Anyone ?

[mister_gayle]

Surely someone one ?

[ScarletPimpernel]

As usual, 1st Credit speak with forked tongue.

 

Even though they would not be responsible for issuing the DN, as they are now the creditor as defined by s.189 of the CCA 1974 it is in their interests to deal with your request for it, since if this ends up in court it is likely to be a very significant document. Debt buyers don't usually get any documentation at all from the original creditor, and indeed it is extremely unusual for an original creditor to be able to produce a copy DN; in general, these are computer generated and no copies are retained. 1st Credit know this too, so are trying to throw you off the scent.

 

I do not think your DPA argument will go anywhere; the Information Commissioner has always sided with the CRAs on the matter of data reporting to them. It is probably not worth pursuing this line.

 

I have had considerable experience of dealing, on behalf of others, with 1st Credit's Compliance Department. They generally deny any wrongdoing; when subsequently faced with unimpeachable evidence of same they invariably use an 'admin error'-style excuse, and then start making demands again. They once told me that they do not use template letters!

 

Did they send the back page of the agreement?

[mister_gayle]

Thanks

 

No only the front page they sent ?

 

How would you advise in how to proceed in responding to them ?

[ScarletPimpernel]

If they didn't send a copy of all the agreement, and any document referred to in it, they remain in default of your request because they have not yet complied. You therefore have a reason to dispute the matter.

[mister_gayle]

The attached document in post 8 is what they sent me, they have sent that to me twice.

 

Do you have a template or example letter, or should I just simply send a CCA again but state they have not sent the correct document ?

[ScarletPimpernel]

No, just write to them and tell them that because they have failed to comply fully and properly with your original request, they are in default and so you consider the matter to be in dispute.

 

I'd be inclined to add a line to the effect that given that the Consumer Credit Act is fundamental to their business, you cannot believe that they do not know how to comply fully and properly, and that the only concludion you can draw is that they are deliberately seeking to mislead you, contrary to their obligation under the OFT Guidance.

[mister_gayle]

Ok thank you, I will use that.

 

Do you have a template or example I can use ?

 

Can you also advise why what they have sent is not sufficient, so I can state this in the letter I am composing

Edited September 14, 2010 by mister_gayle

[ScarletPimpernel]

There's no template.

 

To comply fully with a s.77/78(1) request they have to send the agreement, any other document referred to in the agreement, and a statement. They have failed to send you the complete agreement. Personally I wouldn't do their work for them; it's their responsibility to comply, and they should know what's needed. Keep the letter short and to the point.

[mister_gayle]

Ok thanks - I have composed this

 

Thank you for your response on behalf of 1st credit dated 17/08/2010.

 

However I still don’t believe you have understood all of my previous communications, in which I have requested a copy of the original Consumer Credit Agreement.

 

Thus far you have only provided me with 1 page of the agreement. In view of you failing to comply fully and properly with my original request, you are in default and I consider the matter to be in dispute.

 

The Consumer Credit Act is fundamental to your business and I cannot believe that you do not know how to comply fully and properly. My only conclusion from your actions is that you are deliberately seeking to mislead me, contrary to your obligation under the OFT Guidance.

 

Yours sincerely

 

/

 

What do you suggest regarding the default notice ?

[ScarletPimpernel]

I really don't understand why you are so keen to do their work for them. I'd send something like this:

 

I refer to your letter dated xxxx, and previous correspondence.

 

Since you have failed to comply fully and properly with my request,you are in default. Take notice that I now formally dispute the matter. Since you cannot be unaware of what you are obliged to send to comply with a s.77/78(1) request, I can only draw the conclusion that your last letter is a deliberate attempt to mislead, contrary to your obligations under the OFT Guidance on Debt Collection.

 

Until you comply fully and properly with my request, I am unable to assist you further and will not enter into further correspondence.

 

 

Leave the DN until they have complied with the CCA request.

[mister_gayle]

Thanks for this, ill let you know how it goes