Abbey default removal

[un1boy]

Hiya Tink,

 

hehe, I know what MCOL stands for!

 

Thanks for clearing that up though - I'll use an N1 form then!

[Guest willowb]

So, I received a letter from DLA PIPER LLP who are acting on behalf of Abbey. They just want my account number.......funny that, as it's on my particulars of claim and every letter that I've sent them since I started this:rolleyes: (no replies ever received from them though). Well, I will send them what they want.....lordy lord!!!

 

Wxx

[Armsoft]

DLA PIPER ?? I thought Abbey had finished with them???

Are you sure it was actually them that called you?

[Guest willowb]

Hiya:)

 

Yes it was, DLA Piper UK LLP Princess Exchenge Leeds. Have you had dealings with them?

 

Wxx

[Armsoft]

No, I havn`t yet.

The indication has been over the past few weeks, that Abbey have parted company with DLA Piper, and taken legal inhouse and being advised by new solicitors `Ashurst`.

But obviously DLA must have retained some cases, or Abbey have changed tact again.

If DLA are still on board, then Abbey have just lost another delaying tactic, as they can`t now claim extra time at court to re-prepare cases due to changes of legal advisors.

A Mod should be made aware of this, I think.

[Guest willowb]

Received the acknowledgement of service today, the company acting on their behalf is: Dla Direct LLp at the same address, Princess Exchange Leeds.

 

Wxx

[Armsoft]

Fantastic News!!

The Wall is beginning to Crumble:D

[Lula]

who at DLa did you get Willow?

[Guest willowb]

Hi Lula

I don't have a name if that's what you mean?

I don't really understand what all this is about to be honest. All I can tell you is that the letter from 13 Nov came from DLA Piper and the Court has been given DLA Direct to serve the papers to.....both at the same address. Are they one in the same? A bit confused really....

 

Wxx

[Lula]

I think that they are Willow, pm me their phone number and I will check it against the paperwork that I have

[Guest willowb]

As usual I'm loving the post man today:mad: LOL

 

I understand that you are unhappy with the 'default notice' that has been placed on your credit file following an accumulated debt on your current account in 2003 (found the sodding number then did you ). Whilst your comments have been noted we are required by the ICO to register any adverse credits or defaults. This is to ensure that when offering credit facilities, financial institutions have sufficient relevant (I bet you love that word!! LOL) information to enable them to make an informed decision. I am sorry if you do not agree with this.

 

It goes on.....as you can imagine!

 

I'll post my response this afternoon;)

 

Wxx

[un1boy]

Cool, look forward to it!!

[Guest willowb]

Well, here it is!!!! please comment if you think there's something a miss:) It's in the same vein as the Barclaycard letter I posted yesterday, I feel that I have to reiterate SB's points to these people because if they 'get it' they're making a great job of ignoring it!! Well, I am woman.....I will not be ignored;)

 

As per my particulars of claim and referring to previous correspondance with AbbeyNational I will attempt to reiterate some points to you so that my position is made clear.

 

I first requested on the 21st July 2006, a certified copy of the origional agreement and an origional certified copy of the default notice issued on the account in 2003. When I received no response from Abbey National after two letters requesting said documents I issued Abbey National with a Statutory Notice on 5th October 2006 allowing 21 days for the removal of the default notice from my creditfile. When a satisfactory response was not given, I then filed a claim on 27th October 2006.

 

By not supplying me with certified copies of these documents Abbey National has now committed a criminal offence under the legislation contained within section 77(1) and section 78(1) of the Consumer Credit Act 1974. It is my contention that the default is no longer valid and should be removed from my file.

 

(SB's template...)

I am also contesting that Abbey National's continued processing of my data is an unwarranted act. My written permission allowing Abbey National to continue processing or disclosing my personal subject data was revoked upon termination of that original contract (which cannot be upheld as Abbey National have not supplied me with the origional agreement) and I hereby reiterate that revocation. I will continue by repeating past correspondance which you may or may not have read:

 

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, Abbey National 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".

 

The matter has been taken 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 They were challenged to quote the exact Statute that includes this so-called "legal right", they remained remarkably quiet. Only after a 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."

 

"standard industry practice" does not correlate with "legal right".

 

Further investigation has also led to the conclusion 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 Abbey National 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. Abbey national) 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 Abbey National has not applied to HM Secretary of State for an order allowing you an exclusion, which leaves Abbey National 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 Abbey Nationals' 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 Abbey Nationals' 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), Abbey National 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 Abbey Nationals' Data Controller to assume continued processing rights of my data at his discretion, nor any exemption. I can then only assume that Abbey National 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 Abbey National 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 Abbey national 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 Abbey national 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.

(end of SB's template)

 

 

I apologise for repeating points that you may or may not have already read in my previous correspondance with Abbey National. In my view this issue needs to be heard by a Court, I am quite willing to be the person who brings the matter to a Judge's attention. Quite apart from the fact that Abbey National have broken the law by not supplying me with the requested documents; financial institutions such as Abbey National should cease to believe that they have a legal right to continue abusing people's data, when in fact there is no legal right which exists in UK Law for such practices.

 

I hope this clarifies my position to you.

 

Ok?

 

Wxx

[un1boy]

woah - give mea year and then I'll reply!

 

Nah, only messing - I'll check over it on my lunch!

[Guest willowb]

cheeky:p

 

Wxx

[un1boy]

cheeky:p

 

Wxx

 

Hehe, only messing.

 

It looks ok. I am confused though - what is the purpose of this letter? You have reproduced the stat notice, which to be honest i wouldn't have done - you could just reference it by saying "my statutory notice, dated xxx" - let them do the work, not you!!

 

You've given them anymore timescales for the next action.

 

Can you clarify, it may just be me being thick, sorry! :-|

[Guest willowb]

Hi Uniboy:)

 

Thanks for trawling through it!

 

The reason I am bothering to write to them is for the fact that I think it's best that I attempt to put us on an equal footing (it'll look good with the Judge anyway). They seem to be either ignoring the basic contentions of the claim or are pretending that it isn't even happening!!!

 

Anyway, I'll not write to them again unless prompted by the Court.

 

I haven't included the stat notice, just Surly's letter detailing the contentions behind my claim.

 

So, what'ya think?:-|

 

Wxx

[un1boy]

Hi Uniboy:)

 

Thanks for trawling through it!

 

The reason I am bothering to write to them is for the fact that I think it's best that I attempt to put us on an equal footing (it'll look good with the Judge anyway). They seem to be either ignoring the basic contentions of the claim or are pretending that it isn't even happening!!!

 

Anyway, I'll not write to them again unless prompted by the Court.

 

I haven't included the stat notice, just Surly's letter detailing the contentions behind my claim.

 

So, what'ya think?:-|

 

Wxx

 

do you know what.....you're right, sorry - I got a bit confused, I meant his letter about the contentions, not the notice -sorry.

 

Yes, I think it's ok - when are you ssending it?!

[Guest willowb]

Not until monday, I'll sit on it for the weekend! I could think of more exciting things to sit on but there you go! what a fabulous life I lead:( lol

 

Wxx

[un1boy]

hehe....well, take another look over it and post soon - have a good weekend (I'm sure you will!!)

[sycostill]

hello, is there any more news on this?

[Guest willowb]

Hello Sycostill, no news as yet just as with the Barclaycard claim. No doubt their defences will arrive on fiday morning to give me a great start to the weekend!

 

Thanks for asking!

 

Wxx

[Guest willowb]

A day early!!!! wayhey!!!!:o

 

Here is their defence.....

1. It is not admitted that the Claimant or either of the Claimants, wrote to the Defendant (I don't think I sent the very first letter recorded delivery! ) enclosing a £1 postal order on 21st July 2006 (I bloody well did but I just didn't put '£1 po enc on the letter....d'oh:>( ). It is denied, that the Claimant (don't you mean Defendant? )has received a request for a cerified copy of the default notice issued on account number *****, or a certified copy of the origional agreement.
   
2. It is admitted that the Claimant (don't you mean Defendant again??? or am I being thick?) is obliged to supply copies of the said agreement, however, whether such obligation arises under Section 78(1) of the Consumer Credit Act 1974, or Section 77(1) of the Consumer Credit Act 1974, depends entirely on the type of agreement. and?
   
3. The Defendant does not understand the Claimants' contention that at no time did the Claimant grant permission to store, process or disclose any personal data beyond the cessation date of the contract, and the Claimant is put to strict proof, as to its contention and is requested to supply further details.
   
4. The defendant denies that it has arbitrarily chosen to extend the length of the contract without the Claimant's agreement. The Defendant denies it has acted unlawfully and denies that the agreement is unenforceable, and puts the Claimant to strict proof. Again, the Defendant requests further particulars.
   
5. It is not admitted that the Defendant has failed to provide the Claimant with any evidence to prove agreement to such terms in perpetuity, again, the Defendant does not understand the basis of the allegation, and requests further information. The Defendant denies that it is in breach of both the contract and the Data Protection Act, and does not admit that it continues to disclose personal data in breach of the Data Protection Act, of contract, and again requests further information as to the alleged breach, to enable the Defendant to properly plead to the allegation, and the claim, in general.
   
6. Once further information has been provided by the Claimant, fully setting out the basis of his (and her:mad: ) claim, and the allegations contained within this form, the Defendant would wish the opportunity of amending its defence, to properly plead the same.

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

 

Well, there you go!

 

Thing is as a few of you know I have a claim waiting to be actioned for unfair charges on this account (I hadn't actioned it earlier as I was waiting for the statements for ages and had to complain to the Information Commissioners Office to get them). The amount of charges does not equal the amount that was defaulted but I've been advised to drop this claim and add the default onto my charges claim. I'd have to send another lba with the default added to it.

 

Thing is, I'd really love to pull this defence to pieces and go all the way with it. If I cancel the claim now, they'll think they've won won't they and that'll stick in my throat but I've got to do this right.

 

What do you all think? and what do you make of the Defence?

 

Eagerly anticipating your response!

 

Wxx

[sycostill]

this is tricky, i added the default part of my claim to my charges bit and it was completed ignored from start to finish, after i had cashed my cheque i was advised to discontinue and try another tac to get the defaults removed and i am therefore just about to send surlybonds letter and begin that way.

 

i'd be interested to see if they mention the defaults, and there isn't enough room on the POC for MCOL so N1 form manually would have to be the way.

[un1boy]

this is tricky, i added the default part of my claim to my charges bit and it was completed ignored from start to finish, after i had cashed my cheque i was advised to discontinue and try another tac to get the defaults removed and i am therefore just about to send surlybonds letter and begin that way.

 

i'd be interested to see if they mention the defaults, and there isn't enough room on the POC for MCOL so N1 form manually would have to be the way.

 

As long as the defualt removal is in your POC they HAVE to remove it if settling out of court¬