T-Mobile data removal. - **WON**

[un1boy]

Hi guys,

 

Just wondered if I could pick your brains on the following. I've been sending various letters to T-Mobile to get them to remove the entries on my CRA files as the account was closed about 2 years ago.

 

The latest letter I got from them says this:

 

"Although you've requested a copy of your signed contract, a contract doesn't necessarily need to signed to be valid. You're able to agree to the terms and condiions, both verbally, and by conduct, for example, the use of the phone."

 

Is this right? If that's the case - what's the point of agreements and contracts? Surely then no one would make you sign contracts and then could just charge you wanted they wanted and sue you for anything.....

 

Any views greatly appreciated!

[Guest willowb]

I've been trawling the net to find something in relation to this issue. Maybe you should contact Ofcom...

 

Consumer complaint against O2 about unfair contract terms | Ofcom

 

And pose the question to them. Did they send you anything via post? If not and you have never read the T&C 's then it's my understanding that they are invalid. The law of contract...a definition....

 

Contract law is the law that governs contracts. A contract can take several forms - it can be written on a piece of paper (or napkin, even) or it can be just a verbal agreement if it satisfies the Statute of Frauds.

A contract is basically an agreement between two or more people which creates an obligation to do, or not do, something. The agreement creates a legal relationship of rights and duties. If the agreement is broken, then the law provides certain remedies.

For a contract to be legally enforceable, not only do all the parties to the contract have to get something in return, but they must also suffer a detriment. In other words, one cannot contract to give someone else $500 unless the other person gives up something in return.

Contract law covers the legal implications of a contract. For instance, contract law determines what is and is not consideration, whether a contract was actually intended, if the parties making the contract were legally competent, whether there was fraud or duress involved, or how a contract is terminated.

Certain contracts are not legally valid, for instance, if the contract goes against public policy (such as a contract to satisfy a gambling debt). In most instances, people who are not of the age of majority are not allowed to make contracts.

When writing a contract, it is important to remember a central principle to contract law - terms of a contract will be construed against the drafter of the contract. Thus, any ambiguities or uncertainties will be resolved against the writer. For instance, if someone drafts a contract where there is uncertainty as to whether the drafter has to pay $500 or $800 for a good or service, the contract will be interpreted against the drafter - i.e. he or she will have to pay the $800 amount.

It's also up to the drafter of the contract to be certain that the person entering into that contract has had access to the T&Cs. Even on the net, you have to tick a box or something.....just using a phone isn't agreeing to anything is it?

 

Wxx

[Guest ian cognito]

I'm depending on the opposite for a claim against vodafone - that a verbal agreement forms part of a binding contract! so it will be an interesting outcome to either yours or mine!

 

I know as far as employment is concerned, verbal contracts are as binding as written ones but whether this applies in all cases I don't know.

 

One interesting point on here though, if like vodafone they claim not to be governed by the CCA then you can ask under what authority they are processing data - there doesn't appear to be any other!

[un1boy]

I've been trawling the net to find something in relation to this issue. Maybe you should contact Ofcom...

 

Consumer complaint against O2 about unfair contract terms | Ofcom

 

And pose the question to them. Did they send you anything via post? If not and you have never read the T&C 's then it's my understanding that they are invalid. The law of contract...a definition....

 

Contract law is the law that governs contracts. A contract can take several forms - it can be written on a piece of paper (or napkin, even) or it can be just a verbal agreement if it satisfies the Statute of Frauds.

A contract is basically an agreement between two or more people which creates an obligation to do, or not do, something. The agreement creates a legal relationship of rights and duties. If the agreement is broken, then the law provides certain remedies.

For a contract to be legally enforceable, not only do all the parties to the contract have to get something in return, but they must also suffer a detriment. In other words, one cannot contract to give someone else $500 unless the other person gives up something in return.

Contract law covers the legal implications of a contract. For instance, contract law determines what is and is not consideration, whether a contract was actually intended, if the parties making the contract were legally competent, whether there was fraud or duress involved, or how a contract is terminated.

Certain contracts are not legally valid, for instance, if the contract goes against public policy (such as a contract to satisfy a gambling debt). In most instances, people who are not of the age of majority are not allowed to make contracts.

When writing a contract, it is important to remember a central principle to contract law - terms of a contract will be construed against the drafter of the contract. Thus, any ambiguities or uncertainties will be resolved against the writer. For instance, if someone drafts a contract where there is uncertainty as to whether the drafter has to pay $500 or $800 for a good or service, the contract will be interpreted against the drafter - i.e. he or she will have to pay the $800 amount.

 

It's also up to the drafter of the contract to be certain that the person entering into that contract has had access to the T&Cs. Even on the net, you have to tick a box or something.....just using a phone isn't agreeing to anything is it?

 

Wxx

 

Errr...to be honest it was about 4 years ago and I relly can't remember....I got the phone from a friend's boyfriend over the phone and I know I had to send ID, as for an agreemetn I REALLY can't remember.

 

I'm confsed as the the drafter thing Willow, can you explain it in a bit more detail, sorry. This bit: When writing a contract, it is important to remember a central principle to contract law - terms of a contract will be construed against the drafter of the contract. Thus, any ambiguities or uncertainties will be resolved against the writer. For instance, if someone drafts a contract where there is uncertainty as to whether the drafter has to pay $500 or $800 for a good or service, the contract will be interpreted against the drafter - i.e. he or she will have to pay the $800 amount

 

Also, if they say that a contract is there because of using the product, or verbally, how can they prove what the conditions were?

 

If it's about using the service - surely that proves nothing....they could have given me the phone and said I could use it...

 

p.s.thanks very much for your research!!

[un1boy]

I'm depending on the opposite for a claim against vodafone - that a verbal agreement forms part of a binding contract! so it will be an interesting outcome to either yours or mine!

 

I know as far as employment is concerned, verbal contracts are as binding as written ones but whether this applies in all cases I don't know.

 

One interesting point on here though, if like vodafone they claim not to be governed by the CCA then you can ask under what authority they are processing data - there doesn't appear to be any other!

 

Hi Jan,

 

So, are you saying that companies can only process information against Credit Refernce Files etc if they are registered under the CCA?

 

If that's so then that makes sense because utiltiy companies don't they? and they effectively work in the same way as Mobile Phone companies......charging you in arrears....

 

Also, from what I remember, T-Mobile issue Defalt Notices (one of my friend's had one) and they can't issue Default Notices AND be exempt from the CCA, can they?

[Guest willowb]

Also, from what I remember, T-Mobile issue Defalt Notices (one of my friend's had one) and they can't issue Default Notices AND be exempt from the CCA, can they?

 

That's a very good point.

 

The drafter in this instance would be T-Mobile.

 

I'm finding this so interesting, Jan what are Vodafone saying to you when you claim that the contract is verbally binding?

 

Wxx

[un1boy]

And, out of interest, why are you depending that a contract is verbally binding? Just curious..

[Guest willowb]

T-Mobile Terms and Conditions

 

BUT if you haven't SEEN the terms and conditions then HOW can you agree to them?

 

WXX

[un1boy]

T-Mobile Terms and Conditions

 

BUT if you haven't SEEN the terms and conditions then HOW can you agree to them?

 

WXX

 

That's what don'tundersatnd - why would we have to sign for anything then?

 

I should write back to the woman and say that by her replying to my letter we had an agreement that she owes me 10k..........how would that work?

 

Or, for conduct, that she replied to my letter means they are wrong and will removemy data!!

[Guest ian cognito]

I'm finding this so interesting, Jan what are Vodafone saying to you when you claim that the contract is verbally binding?

 

They are aying that they do not provide a service (capped monthly calls) that they agreed to verbally and provided for 3 months then withdrew without notice, I am claiming that the fact that they did provide it for 3 months is proof that they entered into the verbal agreement, which I think is the other side of the coin from this thread. Can't get any further with them - hence the use of the word 'claim', I'll let you know how they defend as i wil also be asking under whos authority they stuck a default on my file when we get to court.

[Guest willowb]

You don't have to sign anything for there to be an enforcable contract BUT if they can't prove that they sent you their terms and conditons before you agreed to enter into that contract then is it invalid?

 

The system should be, 'I want one of your mobile phones' (LOL), 'that's fine Mr Uni, I will send you our Terms and Conditions and once you have received them, give us a call and we'll connect you'....???

 

Then they would have reasonable proof that you have them in your possession.

 

Wxx

[Guest willowb]

They are aying that they do not provide a service (capped monthly calls) that they agreed to verbally and provided for 3 months then withdrew without notice, I am claiming that the fact that they did provide it for 3 months is proof that they entered into the verbal agreement, which I think is the other side of the coin from this thread. Can't get any further with them - hence the use of the word 'claim', I'll let you know how they defend as i wil also be asking under whos authority they stuck a default on my file when we get to court.

 

Oh for goodness sake, this is really confusing me now.....how can they say that they had NO agreement with you verbally or otherwise and then issue you with a default? The very term 'to default' means that you didn't keep to the terms and conditions set out in a contract......Oh GOD ....I'm off to bed!.....hot choccie first though:) I'm soooo sad:rolleyes:

 

Wxx

[un1boy]

They are aying that they do not provide a service (capped monthly calls) that they agreed to verbally and provided for 3 months then withdrew without notice, I am claiming that the fact that they did provide it for 3 months is proof that they entered into the verbal agreement, which I think is the other side of the coin from this thread. Can't get any further with them - hence the use of the word 'claim', I'll let you know how they defend as i wil also be asking under whos authority they stuck a default on my file when we get to court.

 

oic, thanks...it will be interesting to see what happens with your case....and yes, complete other side of it from mine....however, i think our cases are cvered by seperate things.....

 

ie it's clear that they provided you with that serivce (why not do a DPA request ask explicitly for that call to be provided too!?)

 

I am contesting their consent to hold my information, which, under the DPA is a criminal offence for them not to have....

 

also, as far as I know, they cannot sen default notices AND be exempt from the CCA...only CCA licensees need to send Default notices.

[Guest ian cognito]

Just to clarify my argument, I agreed to the contract originally on the specific terms that the calls were capped, the phone was for my son and we all know what they're like with mobile phones, so my issue is, either they broke the contract I had with them, or they agreed to something they couldn't provide and mis-sold the contract - either way, I win, they lose (I hope)

[un1boy]

Thank jan -that makes more sense now - have you triedasking for a copy of the call?

[un1boy]

Also Jan, are you susting I write ck and ask T-Mobile if theyare not regulated the Consumer Credit Act, on what authority to they prcess my data?

 

Is that the right phrase to use?

[Guest ian cognito]

yes think you should, interesting to see their answer although I suspect that, like vodafone, they will say it is "their duty to inform other companies how you conduct your account"!!!, probably best asking which legislation they process, they would probably say they don't need authority.

 

Not asked them for a transcript of the converstaion but I will, suspect they won't find it tho'.......

[un1boy]

Good point, I'll draft a letter asking them what authority they have to procss my data, as the data protection specifically states they need consent (which cannot be proved verbally or by conduct). And I'll also ask for a copy of the legislation that gives them autority - you're a star!!!

 

I love this forum!!

[un1boy]

Ok, so this is the letter I received from T-Mobile about the consent by condut thing:

 

Although you've requested a copy of yyour signed contract, a contract oesn't necessarily need to be signed to be valid. You're able to agree to the terms and conditions, both verbally and by conduct, for example, using the phone.

 

I'm afraid that we don't need your permission to refer your balance to either our debt recovery agent, or notify the credit agencies o any late payments. As with the majority of service providers, in any form of business, if payments aren't made this will happen. The infomration regarding thi account will remain on your credit files.

 

___

 

Do I bother wiritng a reply or should I just issue an N1?

[un1boy]

Ladies and Gentlemen, Boys and Girls- Un1boy has made a decision will cahnge his life forever (either way).....

 

I'm really fed up with writing to these halfwits now so I have decided that I will issue and N1 form...please can you check over the POC I want to use and advise me whether I'm able to issue? It's becasue they are still processing my data and cannot give me a copy of any agreement I have allegedly signed:

________________

The Claimant signed a civil contract with the defendant pre 2002 until in which it was agreed that the disclosure of personal data in relation to the contract would extend only to such times as the conclusion of the contract.

This has breached the Claimant’s rights under the Consumer Credit Act and under the fourth principle of the Data Protection Act which states that “Personal data shall be accurate and, where necessary, kept up to date.”

 

Furthermore, the Claimant served a statutory notice under sections 10 and 12 of the Data Protection Act on the 30th August 2006; again the defendant refuses to acknowledge the notice and is in breach of the claimant’s rights under the Act.

 

Personal Information has been provided to third parties by the defendant, who is unable to establish any contractual or legal right to provide this personal information to third parties.

The defendant is in breach of The Data Protection Act 1998.

At no time did the Claimant grant permission, either expressly or implied, for the defendant to arbitrarily extend that permission to store, process or disclose inaccurate personal data beyond the cessation date of the contract.

 

It is the Claimant's contention that the defendant’s perceived right to arbitrarily chooses to extend the length of that contract without the Claimant's knowledge or agreement would be unlawful and unenforceable under the provisions of the Unfair Terms in Consumer Contracts Regulations (1999).

The defendant has failed to provide the Claimant with any evidence to prove agreement to such terms in perpetuity, and it is therefore the Claimant's contention that the defendant is in breach of both the contract itself, the and the Data Protection Act 1998, by the defendant's continued disclosure of personal data.

 

The claimant seeks the cessation of the disclosure of any personal data to any third party including, but not restricted to, Equifax plc, Experian Ltd and Callcredit plc and costs of £200 for postage, research and time.

__________________

[BrianT]

Also Jan, are you susting I write ck and ask T-Mobile if theyare not regulated the Consumer Credit Act, on what authority to they prcess my data?

 

Is that the right phrase to use?

 

I think you will find that the contract to provide the service is made under the terms of the Consumer Credit Act if it is a 'contract' 'Phone much like the telewest and NTL service supply agreements.

 

If at the time you took out the 'contract' for the 'phone you physicaly signed a document you will find that on the reverse of the form there will be the terms and conditions usually in small light coloured print. If this is not the case than the terms and conditions cannot be relied on by the provider, as terms of a contact cannot be added after the contract has been made (except in employment contracts) there is plenty of case law on this. The contract is made at the time your offer is accepted and consideration or the promise of future consideration has been exchanged. This is basicaly when you go into a mobile phone shop offer to take a phone on a contract, sign the agreement and and a standing order form. The consideration is the company supplies you with the phone usually on the spot and you provide future consideration by making the standing order in their favour.

 

You will also often find a clause somewhere on the conditions stating that only the terms and conditions printed on the form will apply and stating that no employee has the authority to add to or amend the terms of the agreement or contract.

[un1boy]

That's really interesting Brian, thanks for your post!

 

Am I right in thinking that if they cannot provide a copy of the agreement then they can't process y data?

 

They reckon that by me using the phone I have consented by conduct but they have sent me a copy of theit current terms and conditions, not the ones at the time!

[BrianT]

Its complicated but basically if they don't have a copy of the agreement they can't prove an agreement ever exsisted. If there was no agreement then you could not have agreed to their using or processing the data. By using the Phone after receiving a copy of the amended T&C's it can be held that those new T&C's have been accepted. I will bet my left ******* that there is a statement to that effect in those same T&C's.

 

You should make an application under the DPA for copies of all data and documents they hold about you this should reveal a copy of any agreement made and it has to be in a legible format. It can also be useful to request a copy of their DPA registration as this will detail which data they collect and the purposes for which it is used, they can and probably will make a charge but it cannot exceed the actual cost of providing the information usually the charge is about a tenner.

[un1boy]

Thanks again Brian - so am I right in thinking that their argument of consen by conduct is a load of codswallop? Iahev read their T and C's and there dosn't seem to be anything like in there- I will read it again though because I only scanned it.

 

So, you think I'm better going the Data Protection Act route do you? Rather tahn just issuing my N1 form against them? I don't see what a DPA would achieve - they have already told me they don't need to produce a copy of it (and basically that they don't have it!)

 

Their argument now is consent by conduct/verbal consent!! (What?!) But how can they prove I've even read their T and C' if this was the case?

 

I am totally stuck as to what to do now .....if you think I should issue a DPA request then I will....I was thinking of just going for the N1 now tough, lol

[Tinkerbelle]

Up to you if you want to continue to fanny about mate.

 

If it goes to court they will have to produce this information. You can choose to waste more time if you like, by sending them a DPA.

 

The choice is yours.

 

I will have a look at your POC in a little while.

 

Regards