un1boy vs Experian - Default removal

[sycostill]

yes, i've heard that alot, but i will only pursue orange if after natwest's defaults are removed and i can't get credit. in theory my credit file should be ok. so it shouldn't matter too much.

[un1boy]

Well I sent a CCA reques to T-Mobile and they said they were exempt; went into the shop and they said all their contracts were covered under the CCA - they wouldn't let me look at a contract though!!

[un1boy]

Right guys.

 

I have changed this paragraph, other than that, everything thing else is the same:

"If you think that any of the information we have sent you is wrong and that you are likely to suffer because

it is wrong, you can ask us to correct it or remove it from our file. You need to write to us telling us what you want us to do. You should explain why you think the information is wrong. If you write to us, we have to reply in writing within 28 days. Our reply will tell you whether we have corrected the information, removed it from our file or done nothing. If we tell you that we have corrected the information, you will get a copy. If our reply says that we have done nothing, or if we fail to reply within 28 days, or if we correct the information but you are not happy with the correction, you can write your own note of correction and ask for it to be included on our file."

 

 

The above statement does not mention that you will first contact your client. It is fair to accept that you mauy not remove or amend the data, but to imply that you cannot do so without your client’s permission seems to be a misconception.

___

 

I am going to send it monday now. I think I will issue the stat notifce after, just so that I get a reply form the issues in this letter seperately.

 

Thanks for all your help.

 

Right guys - letter sent - I can post the full one if that's any help?

 

Let's see what their reply is!

[un1boy]

Damn it, he's out of office until tomorrow; he's always out of the office!

 

Guess I'lll wait for his reply then?

[Guest ian cognito]

He's probably set his preferences so he's only out of the office if he received something from Un1boy, if its an invitation to a Christmas party, he's in!!!!

[sycostill]

lol more thank likely.

[un1boy]

He's probably set his preferences so he's only out of the office if he received something from Un1boy, if its an invitation to a Christmas party, he's in!!!!

 

Haha, I bet!!

 

Here's his reply:

______________

Regarding your comments concerning article 8 of the European Convention on Human Rights and the Human Rights Act 1998, I would reiterate that Experian is not a public authority but a private company carrying on commercial activities. As Experian is therefore not eligible for action under the 1998 Act I fail to see why a Judge must consider the requirements of the Act when making a ruling.

 

The correspondence we received from the Information Commissioner's Office in relation to the retention of account information was dated 22 September 2006. I am not required to send you a copy of this correspondence.

 

I can assure you that the Information Commissioner's Office did indeed confirm that credit reference agencies do not appear to be in breach of the 5th Data Protection principle by retaining data for a period of six years after the account was last active.

 

You may like to view the official statement that the Information Commissioner's Office released on this subject on 6 November 2006:

 

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/credit_%20agreements%20-%20data_%20sharing.pdf

 

Further to our recent correspondence, I have been contacted by HSBC. They have confirmed that the details we hold are accurate and have requested that we retain the information on our database. Unfortunately I am unable to amend this information without the authorisation of the company in question. If you have any further queries or wish to discuss this further, may I suggest you contact the company concerned direct at the following address:

 

HSBC Branch Banking: Please contact your former account holding branch

 

The 'Notice of Dispute' will remain on your report for 28 days it will then be removed, unless I receive further notification from you:

 

"THE ACCURACY OF THIS DATA HAS BEEN DISPUTED BY THE INDIVIDUAL CONCERNED AND WE HAVE NOW CONTACTED THE SUBSCRIBER. CARE SHOULD THEREFORE BE TAKEN WHEN USING THIS ITEM OF DATA TOASSESS THE CREDITWORTHINESS OF THE INDIVIDUAL CONCERNED".

 

You maybe aware that you are able to add a short explanatory statement, called a 'Notice of Correction', to your credit report. If you wish to add such a statement, anyone searching your details in the future, as well as companies who have searched the report in the past six months, will see a copy of it and it may have an effect on any future applications you make.

 

If you would like to add a 'Notice of Correction' to your credit report, please let us know the exact wording you would like to use. We cannot add a statement that is longer than 200 words or one we think is defamatory, frivolous, scandalous or unsuitable for publication for some other reason.

 

I am still awaiting a response from T-Mobile and will advise you once this is received. I can assure you we are pursuing this response on a regular basis.

 

I note your comments concerning bank charges and the companies concerned failing to issue default notices. The issue of bank charges and an account being defaulted are often unrelated. You should note that in order for you to receive a bank charge there will have been a breach of the terms and conditions that you agreed to abide by.

 

A default notice is generally deemed to have been served by post on the next working day after despatch. Please also note Section 176(3) of the Consumer Credit Act 1974:

 

(3) For the purposes of this Act, a document sent by post to, or left at, the address last known to the server as the address of a person shall be treated as sent by post to, or left at, his proper address.

 

It would appear from your report that at the date of default the last known address that HSBC had been supplied with by yourself was xxxxx. It is therefore safe to assume that this is the address where the default notice will have been served.

 

I note from your electoral roll information that you were not residing at xxxxx at that time. It is very important that you notify all of your creditors if you change address to ensure that you receive any important documentation.

 

You have quoted The Consumer Credit (Credit Reference Agency) Regulations 2000. I would draw your attention to the fact that these regulations only relate to the requirement by us to supply you with a statement of your rights under Section 159 of the Consumer Credit Act 1974. They do not impose any further regulations upon us. Please note that the section you have quoted to me is entitled:

 

YOUR RIGHTS UNDER SECTION 159 OF THE CONSUMER CREDIT ACT 1974, AND UNDER THE DATA PROTECTION ACT 1998, IF YOU THINK ANY ENTRY IN OUR FILE IS WRONG

 

Therefore, The Consumer Credit (Credit Reference Agency) Regulations 2000 do not give you a statutory right to have data removed. I suggest that you also read the rest of this statement of your rights which goes on to advise that:

 

Our reply will tell you whether we have corrected the information, removed it from our file or done nothing. If we tell you that we have corrected the information, you will get a copy.

 

You have advised that Section 13(3) of the Data Protection Act 1998 does not apply when we have been notified that information is incorrect. I am uncertain what makes you believe this. Section 13 relates directly to compensation claims for failure to comply with certain requirements of the Data Protection Act 1998. Section 13 merely advises that it is a defence to prove that such care had been taken as in all the circumstances was reasonably required to comply with the requirement concerned.

 

As previously advised, our regulator considers our action to query disputed information with the data provider as taking reasonable steps to verify the accuracy of the entry and by adding a statement to this effect to your report we are recording your viewpoint that the entry is inaccurate.

 

I fail to see that any further discussion of our query process in relation to the relevant legislation will be constructive. However, I would like to make you aware that you also have the right to retain the Notice of Dispute statement to any entries you have queried or to add a Notice of Correction statement of your own wording as explained earlier.

 

You have asked what gives us the right to unilaterally apply data in the first instance. I feel that this has been covered with my comments concerning our right to hold data. You should also note that the companies you hold accounts with will have also made available 'Fair Obtaining Clauses' explaining how your information will and may be used.

 

If you have a dispute with a company concerning the information they have confirmed to be accurate you would need to take this up with them. You have not advised us that you did not make the late payments or that you do not owe the money. Your contention so far has been that you do not believe they have the right to pass information on to us.

 

We do not receive any benefit from informing a company that an individual has a default on their credit report. Credit reference agencies do not make lending decisions and as a result, when a lender asks to see the information we hold, we do not offer any comment or advice. We are not told if the information we have provided has affected the lending decision or, in fact, what that decision is. Therefore, we would not be able to charge companies on a commission basis dependant on the interest rate they charge.

 

A lenders decision will also take into account the information you give them on your application form too, including details of your job, how long you have been at your address, whether you own your own home and how many dependants you have. This information is not held on your credit report.

 

If you would like to clarify any of my comments you may wish to contact the Information Commissioner, who regulates the Data Protection Act 1998. The address that you may require is as follows:

 

The Information Commissioner's Office: Wycliffe House, Water Lane, Wilmslow, SK9 5AF

__________________

 

What a crappy response.

[Guest ian cognito]

They're getting quite used to this now aren't they, must have god knows how many staff working full time on it.

 

Nothing new in there I don't think, just their interpretation of things, definitley needs questioning when you consider they have no legal basis for any of these claims.

[un1boy]

I now jan, I am now under the impression that I won't waste my time replying. I am concerned though that he mentions I have never once mentioned to him that I don't owe the money - seeing as they have defaulted on my CCA request and I've told them I don't acknowledge it, I don't know whether to ignore it, or write back with my stat notice to stop processing my data and tell them I don't acknowledge it either (although, that is none of experian's business, is it?)

 

I am going to prepare a stat notice and whwen they dont comply, I will issue an N1 and see what ahppens - I need to do that with Equifax too, they haven't complied so I am trying to get the money together for an n1!

[angry cat]

Yup,

Neither Experian or Equifax is a public body or authority.

Therefore the Human Rights Act will not apply, also because these money making organisations are not Gov. bodies/authorities one cannot make a freedom of Information request either.

 

Incidentally, The Financial Ombudsman Service, (although set-up by The FSA who are a Public Body/Authority) is not a Public Body/Authority either, therefore the same rules apply! The whole situation is a shambles...a scandal.

 

Love AC

[lookinforinfo]

First thing, your address is mentioned twice in your email-might be a n idea to

remove it asap.

 

I notice that they didn't answer your point on removing defaults. Your

argument was not that they didn't remove your default, but that they implied

in a previous email that the only way they could remove it was on an adjudication by the Information Commissioners Office,

when they had a statutory right to remove it if they so wished.

 

On another point, what they are saying is thay they have no protection at all against processing derogatory data.

 

They also make the point about companies supplying "Fair Obtaining Clauses"

I can find no reference to such a clause in the act. I am pretty sure that

they meant "Fair Processing Information", and in the Act it is not "companies"

that should supply it but data controllers, and failure to supply may make

the processing of data unfair and therefore should not be processed. See Information Commissioners Office

guidelines

 

 

When data are obtained from data subjects the data controller must ensure, so far as practicable, that the data subjects have, are provided with, or have made readily available to them, the following information (referred to as the “fair processing information”):-

(a) the identity of the data controller,

(b) if the data controller has nominated a representative for the purposes of the Act, the identity of that representative,

© the purpose or purposes for which the data are intended to be processed, and

(d) any further information which is necessary, taking into account the specific circumstances in which the data are or are to be processed, to enable processing in respect of the data subject to be fair.

In deciding whether, and if so, what, further information is “necessary” to satisfy (d) above, data controllers should consider what processing of personal data they will be carrying out once the data have been obtained and consider whether or not data subjects are likely to understand the following:-

(a) the purposes for which their personal data are going to be processed;

(b) the likely consequences of such processing such that the data subject is able to make a judgement as to the nature and extent of the processing; and

© whether particular disclosures can reasonably be envisaged.

It would be expected that the more unforeseen the consequences of processing the more likely it is that the data controller will be expected to provide further information. This aspect also has a bearing on the question of what amounts to consent (see specific consideration of this issue at paragraph 3.1.5 above); in the same way that consent must be “informed”, so data subjects themselves must be fully aware of the ways in which their personal data may be processed in order for that processing to be considered fair.

Now I have never received anything like that from any data controller,

and in any event, it is unlikely to have been sent out til after this Act came in to force ]March 2001], well before many people signed

agreements for bank accounts, credit cards, loans etc.

 

It might be worth while asking the Information Commissioners Office just what they did confirm in their letter to Experian on the 22nd September 2006.

[un1boy]

First thing, your address is mentioned twice in your email-might be a n idea to

remove it asap.

 

I notice that they didn't answer your point on removing defaults. Your

argument was not that they didn't remove your default, but that they implied

in a previous email that the only way they could remove it was on an adjudication by the Information Commissioners Office,

when they had a statutory right to remove it if they so wished.

 

On another point, what they are saying is thay they have no protection at all against processing derogatory data.

 

They also make the point about companies supplying "Fair Obtaining Clauses"

I can find no reference to such a clause in the act. I am pretty sure that

they meant "Fair Processing Information", and in the Act it is not "companies"

that should supply it but data controllers, and failure to supply may make

the processing of data unfair and therefore should not be processed. See Information Commissioners Office

guidelines

 

 

When data are obtained from data subjects the data controller must ensure, so far as practicable, that the data subjects have, are provided with, or have made readily available to them, the following information (referred to as the “fair processing information”):-

(a) the identity of the data controller,

(b) if the data controller has nominated a representative for the purposes of the Act, the identity of that representative,

© the purpose or purposes for which the data are intended to be processed, and

(d) any further information which is necessary, taking into account the specific circumstances in which the data are or are to be processed, to enable processing in respect of the data subject to be fair.

In deciding whether, and if so, what, further information is “necessary” to satisfy (d) above, data controllers should consider what processing of personal data they will be carrying out once the data have been obtained and consider whether or not data subjects are likely to understand the following:-

(a) the purposes for which their personal data are going to be processed;

(b) the likely consequences of such processing such that the data subject is able to make a judgement as to the nature and extent of the processing; and

© whether particular disclosures can reasonably be envisaged.

It would be expected that the more unforeseen the consequences of processing the more likely it is that the data controller will be expected to provide further information. This aspect also has a bearing on the question of what amounts to consent (see specific consideration of this issue at paragraph 3.1.5 above); in the same way that consent must be “informed”, so data subjects themselves must be fully aware of the ways in which their personal data may be processed in order for that processing to be considered fair.

Now I have never received anything like that from any data controller,

and in any event, it is unlikely to have been sent out til after this Act came in to force ]March 2001], well before many people signed

agreements for bank accounts, credit cards, loans etc.

 

It might be worth while asking the Information Commissioners Office just what they did confirm in their letter to Experian on the 22nd September 2006.

 

Hiya mate, god - thanks for letting me know, though tI checked it, obviously not.

 

I am going to wite to the ICO to ask but apparently they are exempt from the Freedom of information act, so I'll ask them first. His line about "I do not have to provide you with a copy" made me laugh so hard!!

[un1boy]

They're getting quite used to this now aren't they, must have god knows how many staff working full time on it.

 

Nothing new in there I don't think, just their interpretation of things, definitley needs questioning when you consider they have no legal basis for any of these claims.

 

I know, I know - I'm just bored with him now though, not really telling me anything I don't know.

[un1boy]

Incidentally, The Financial Ombudsman Service, (although set-up by The FSA who are a Public Body/Authority) is not a Public Body/Authority either, therefore the same rules apply! The whole situation is a shambles...a scandal.

 

I did not know that, what a farce!! How did you find this out?

[lookinforinfo]

it is not enough for a data controller to say that, because the information was obtained from either the data subject or a third party, they had done all that they could reasonably have done to ensure the accuracy of the data at the time. Now data controllers may have to go further and take reasonable steps to ensure the accuracy of the data themselves and mark the data with any objections. The extent to which such steps are necessary will be a matter of fact in each individual case and will depend upon the nature of the data and the consequences of the inaccuracy for the data subject. This approach exceeds the requirements of the Fifth Principle in the 1984 Act.

 

It is hardly reciprocity when they can display our history for 6 years and they

give us 28 days when they will exhibit our coerrection. OK they will put it

up again if we ask but only for 28 days again-big deal.

[sycostill]

any progress mate?

[un1boy]

any progress mate?

 

Hita mate,

 

Thanks for asking, but no not really; I am unsure what to do now really, I've got 3 options:

 

1.Write back, but don't really know which way to go with my reply

2.Issue a stat notice to desist from processing my details

3.issue an N1 for them to desist from processing, or better still, issue the N1 when they fail to comply with my stat notice.

[sycostill]

i'd go with number 2.

[sycostill]

keep the communication up and they will either get annoyed and sort you out , or slip up by say something you can use to help you.

 

 

keep going mate.

[LeeS80]

Keep goin' un1boy, I'm pretty sure they'll sort it out before any court appearance. They have no law in their favour.

[un1boy]

Yeh, think I will - I'm just preparing my stat notice now. I'll post when it is finished!!

[un1boy]

Keep goin' un1boy, I'm pretty sure they'll sort it out before any court appearance. They have no law in their favour.

 

Thanks for the support and encouragement Lee, I am now at the same stage with Equifax - I issued the stat notice around October and they have fobbed me off.

 

T-Mobile have entered a defence for my n1 to force them to comply with my notice to them and I am waiitng for this one to go through then I will issue an n1 to equifax and I am just doing the stat notice to experian.

 

This is all new territority for me, so it's all a bit scary too!

[LeeS80]

Hi,

 

What was T-Mobile's defence? Would be interesting to see what they're saying they have a right to do.

 

Lee

[un1boy]

Take a look - it's actually pretty shocking - 23 pioints and loads of screen shots and irrelevant info:

 

http://www.consumeractiongroup.co.uk/forum/telecoms-mobile-fixed-broadband/41808-t-mobile-dont-need-5.html#post463216

 

Let me know what you think!

[un1boy]

Hello, firstly I would like to say Happy New Year to everyone reading this thread.

 

Secondly I would like to mention the following:

 

I sent my original stat notice to Equifax by Email.....

 

I am going to send another one now, by post to their registered address so it's all official.

 

Two reasons:

 

1. I want to see if they come up with the same arguments.

2. I am ready to issue Experian's and I want to take them to court if they don't reply, so it's best that I do everything properly; don't want Equifax's defence to be, "well, Mr Judge, Un1boy didn't officially issue the Notice on us because it was send by email, so he has nothing to sue us for!"

 

I guess it's worth a try, eh?

 

I'll let you know what happens!