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Nationwide Default (no signed credit agreement)


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Hello everyone,

 

As I am on a mission to try and clear up my credit file.

 

I had a Nationwide loan in 2005 (they have supplied a copy of credit agreement)

 

I then had a PPI claim with FOS that was resolved in Sept 2008,

they were ordered to resolve it by either removing the PPI or setting up a new loan on the same interest rate.

 

I had issues paying in May 2009 and entered a payment arrangement with them,

they continued to mark my file as up to 6 payments late and then filled a "default" marker in June 2011

and then took me to court for payment,

I stupidly failed to respond to the claim and paid in full and had CCJ removed.

 

However, on applying for a SAR they have provided;

 

1. Original Credit Agreement 2005

2. Credit agreement unsigned dated Sept 2008 with a loan account totally unrecognised.

3. All of the correspondence relating to this account is for a loan account number with no agreement being entered into.

 

Ok, so.....I understand that in accordance with ICO Technical Guidance on filing a default

it should be between 3-6 months after the last payment is made

obviously it was 25 months after

(I've just had the ICO rule that Lloyds did the same and that its "unlikely" they complied with DPA).

 

But I wonder if fundamentally there is an argument that I never agreed to allow them to share my data with 3rd parties?

i.e this is a contractual issue.

This is a new loan and by sending one loan agreement with an unknown loan account on it, it would seem I should have agreed but I didn't! Ever!

 

So if there was no agreement, should they have put a default notice on at all?! Breach of DPA?

 

I'd welcome comments on the issue.

George Loveless - “We raise the watchword, liberty. We will, we will, we will be free!"

 

My advice is only my opinion, I am not a legal expert.

 

IF YOU LIKE THE ADVICE I'M GIVING AND ARE HAPPY WITH IT, CLICK THE SCALES ON THE BOTTOM LEFT OF THIS POST AND TELL ME.

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That would be my understanding, orforster..

Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Thanks Citizen B, what are people claiming these days? £1,000? I thought I'd read somewhere of a case that clarified the issue of compensation but I can't find it now.

George Loveless - “We raise the watchword, liberty. We will, we will, we will be free!"

 

My advice is only my opinion, I am not a legal expert.

 

IF YOU LIKE THE ADVICE I'M GIVING AND ARE HAPPY WITH IT, CLICK THE SCALES ON THE BOTTOM LEFT OF THIS POST AND TELL ME.

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I think it is the Durkin case you are looking for.

 

TBH, I am not sure of the compensation figure.

Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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That's it, thanks. I'll look it up. TBH I'm not looking for much compensation mainly all adverse data removed as part of any negotiated settlement, if of course it got to that point.

George Loveless - “We raise the watchword, liberty. We will, we will, we will be free!"

 

My advice is only my opinion, I am not a legal expert.

 

IF YOU LIKE THE ADVICE I'M GIVING AND ARE HAPPY WITH IT, CLICK THE SCALES ON THE BOTTOM LEFT OF THIS POST AND TELL ME.

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Here is a copy of a letter I'm planning on sending tomorrow;

 

Dear Sirs,

Further to my letters dated 9 October 2013 and 13 October 2013 my complaint remains unanswered a copy of my recent letter is enclosed for your reference.

A Letter Before Action was served dated 13 October 2013, in line with your complaints policy you have failed to respond.

I am writing to remind you that I require a response by 28 October 2013 in order to avoid Court action without further notice.

As I explained in my letter dated 13 October 2013 a “default” marker was placed on my credit file in relation to account number XXXXXXXXXXXXXXX, at no time did I grant permission, either expressly or implied for you to share my data with a third party with regard to this account. Sharing my data with a third party without my agreement is an unfair term and contrary to the Unfair Term in Consumer Contracts Regulations 1999.

You have failed to provide any evidence to show any agreement, as such, it is my contention that this was a breach of contract and a breach of the Data Protection Act 1998.

Failure of a Default to be accurate not only invalidates the Default (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119) I am also aware of a recent case (Durkin v HFC) and am therefore clear of my course of action in any claim brought.

I therefore require the following;

1. Full removal of all information in relation to all accounts held with Credit Reference Agencies.

2. Compensation of £1,000.

Failure to comply or respond on or before 28 October 2013 will result in further action without further notice where I will claim damages, costs and interest at 8%, a complaint will also be raised with the Information Commissioner.

I therefore look forward to hearing from you at the earliest opportunity.

Yours faithfully

George Loveless - “We raise the watchword, liberty. We will, we will, we will be free!"

 

My advice is only my opinion, I am not a legal expert.

 

IF YOU LIKE THE ADVICE I'M GIVING AND ARE HAPPY WITH IT, CLICK THE SCALES ON THE BOTTOM LEFT OF THIS POST AND TELL ME.

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looks ok to me :)

Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Hi Orfoster,

reading this with interest as I am in a very similar position! Mine relates to an overdraft that was defaulted, but have written to the Data Protection Team at Nationwide twice asking for proof that they had my permission to share my information with any third partyand have had no reply. Where will you be sending your latest letter and would you mind if I base my next letter to them on yours? So annoyed about this as this is the only bad thing left on my credit rating and has another 14 months to go if I leave it to drop off naturally.

Best wishes,

Pookey

I'm in the DCA kicking business ..........and business is good!!!!

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Hi there,

Yes I've already sent my letter and had a response from their complaints department saying "no change in our position" I last night sent a complaint to the ICO based on the same I've used for a similar complaint about Lloyds (they upheld my complaint) and I have an ongoing court claim against Lloyds, one of the issues is Bank Charges and is a BCOBs claim and I'm amending my claim shortly to include DPA breaches. Of course use my letter, anything I post is free to be used.

George Loveless - “We raise the watchword, liberty. We will, we will, we will be free!"

 

My advice is only my opinion, I am not a legal expert.

 

IF YOU LIKE THE ADVICE I'M GIVING AND ARE HAPPY WITH IT, CLICK THE SCALES ON THE BOTTOM LEFT OF THIS POST AND TELL ME.

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Hello,

 

Ok I've been doing some research on the issue here is what the ICO says;

 

The conditions for processing are set out in Schedules 2 and 3 to the Data Protection Act. Unless a relevant exemption applies, at least one of the following conditions must be met whenever you process personal data:

 

The individual who the personal data is about has consented to the processing.

The processing is necessary:

- in relation to a contract which the individual has entered into; or

- because the individual has asked for something to be done so they can enter into a contract.

The processing is necessary because of a legal obligation that applies to you (except an obligation imposed by a contract).

The processing is necessary to protect the individual’s “vital interests”. This condition only applies in cases of life or death, such as where an individual’s medical history is disclosed to a hospital’s A&E department treating them after a serious road accident.

The processing is necessary for administering justice, or for exercising statutory, governmental, or other public functions.

The processing is in accordance with the “legitimate interests” condition.

 

So far so good, they never had my consent to process information because I never signed or received any agreement. All of their system notes etc don't mention ANYWHERE the account number shown on any of the default notices and the account shown on my credit file BUT it then goes on to say;

 

The Data Protection Act recognises that you may have legitimate reasons for processing personal data that the other conditions for processing do not specifically deal with. The “legitimate interests” condition is intended to permit such processing, provided you meet certain requirements.

 

The first requirement is that you must need to process the information for the purposes of your legitimate interests or for those of a third party to whom you disclose it.

 

Example

A finance company is unable to locate a customer who has stopped making payments under a hire purchase agreement. The customer has moved house without notifying the finance company of his new address. The finance company engages a debt collection agency to find the customer and seek repayment of the debt. It discloses the customer’s personal data to the agency for this purpose. Although the customer has not consented to this disclosure, it is made for the purposes of the finance company’s legitimate interests – ie to recover the debt.

 

The second requirement, once the first has been established, is that these interests must be balanced against the interests of the individual(s) concerned. The “legitimate interests” condition will not be met if the processing is unwarranted because of its prejudicial effect on the rights and freedoms, or legitimate interests, of the individual. Your legitimate interests do not need to be in harmony with those of the individual for the condition to be met. However, where there is a serious mismatch between competing interests, the individual’s legitimate interests will come first.

 

Example

In the above example, it is clear that the interests of the customer are likely to differ from those of the finance company (it may suit the customer quite well to evade paying his outstanding debt). However, passing his personal data to a debt collection agency in these circumstances could not be called “unwarranted”.

 

Finally, the processing of information under the legitimate interests condition must be fair and lawful and must comply with all the data protection principles.

 

Example

Continuing the above example, the finance company must ensure that the personal data it passes to the debt collection agency is accurate (for example, in the known details of the customer’s identity); that it is up to date (for example, in the amount outstanding and the customer’s last known address); and that it is not excessive – the agency should only get as much personal data as is relevant or necessary for the purpose of finding the customer and recovering the debt.

 

So are they saying that EVEN if I have never consented that they could argue they had a legitimate interest to share my data?!

George Loveless - “We raise the watchword, liberty. We will, we will, we will be free!"

 

My advice is only my opinion, I am not a legal expert.

 

IF YOU LIKE THE ADVICE I'M GIVING AND ARE HAPPY WITH IT, CLICK THE SCALES ON THE BOTTOM LEFT OF THIS POST AND TELL ME.

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  • 3 weeks later...

Hi Orfoster,

I think the legitamate interest argument, especially with the examples provided with the finance company, shouldn't stretch to sharing that information with credit reference agencies who then publish this information. Fair enough sending details of a disapeared debtor to a DCA (although I wish they couldn't!) as the DCA is going to use this info to trace the debtor, but cannot further share the information or publish it.

Anyway I'm about to find out I suppose as Nationwide has just confirmed that they have no copy of my signed application form consentin to them sharing my information, but by using the account I agreed to the terms and conditions. I had a lovely hour on the phone with Equifax today telling them that Nationwide did not have any permission from me to share information with third parties, to which I was told that Credit Refernce Agencies are not classed as third parties. not too sure about that!

Good luck with getting your default removed,

Pookey

I'm in the DCA kicking business ..........and business is good!!!!

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I asked for my credit card agreement, and one part I have signed, but on another sheet, I haven't signed. And they shared my information with all the CRA's.

LilythePink

If you liked what I said, and if it helped in any way, please tip my scales..... thank you:)

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