Loz vs Nat West

[loz]

Hello again

Just starting a new thread to keep track of things - having had a nice big refund of charges from NatWest and used it to pay off my overdraft, I decided to look at the £5k loan they gave me 4 years ago. All I could find at home were a few old statements and the occasional radgie letter when I missed a payment on the "plan" that was agreed when I could no longer afford the original repayments. No sign of the original agreement & associated paperwork, or any other correspondence (not that there has been any!). So I made a Subject Access Request on the 19th January:

Under the terms of the Data Protection Act, I request full disclosure of information relating to the above loan account. Please provide me with true copies of all documents appertaining to the account, plus details of all transactions and notes placed on the account by NatWest staff.

 

etc

 

A couple of days ago I got a standard reply, the one you get when you do the regular Data Protection Act request regarding charges... "Thank you for requesting copy statements..." and going on to refer to manual intervention. Sure enough the next day I got a set of statements. All well and good but not quite what I asked for.

 

I'll give them the benefit of the doubt for another week or two and see if they come up with the goods. I know I could get a copy of the loan agreement via a CCA request, but I want more than that. Also I'm not sure what I hope to achieve once I have the information, I'll cross that bridge when I come to it

 

TTFN,

Loz

[thecornflake]

You may have issues with this as I'm not sure how much you need to specify what information you are requesting. It seems like they have mistaken your request for a standard charges request, in which case they won't realise if they've already sent the staements.

 

I would send them a letter pointing out their mistake and the fact that the deadline is still ticking from the date of your original request...

[loz]

Aye I plan to do that... you'd think they might employ people who can read - I thought "full disclosure" and "all documents" would make it clear what I wanted *rolls eyes*

[loz]

Well having written again to Joyce Tudor (who apparently replied to my initial request), the 40 days is well and truly up. I'm not impressed. LBA heading their way I think

 

Loz

[loz]

I followed up my DPA request (still only ever got statements.. twice) with a CCA request that was signed for by NatWest on 19th April. I have had no reply and they are now in default, so I intend to cancel the standing order for the repayments on this... Should I be doing anything else or do I just wait until a further month has passed and/or they notice the payments have stopped?

 

*busy reading through CCA threads*

 

Loz

[loz]

Well it seems that NatWest have committed an offence as of June 6th, what a nice feeling that is

As far as I can tell from what I've read on CCA threads, I should do nothing until they notice..?

 

Loz

[orfoster]

I have had dealings with NatWests Retail Risk Dept and yes they are worse than useless. They store all agreements etc using a company called "Iron Mountain" but they couldn't provide details on a loan they sold me when i was 16 which I still need to look at but I learnt all about how they store things and you are probably right that they don't have a copy of your agreement. Have you been reading the legalities section on CCA Requests?

[loz]

Aye I've read argument & counter-argument about the legal side of it, it made my brain hurt! :S

The loan was arranged about 5 years ago which isn't exactly the mists of time is it? Their problem if they can't find it though!

 

Loz

[loz]

Time to update, much has happened regarding NatWest...

 

As mentioned above, I hit them firstly with a Subject Access Request and then asked for a copy of the loan agreement under the CCA. Neither of these resulted in anything but a few statements, and the cheques for both were cashed. Since they had defaulted my CCA request I stopped paying them.

 

During this period I also asked for charges which were still being applied to my account which I had recently brought back into credit - managed to get a goodwill offer of about £200 more than i was asking for, nice! I then closed the account.

 

Having been turned down for a loan (to consolidate other debts and reduce monthly outgoings) and then having to find out if i could get a mortgage, I had cause to check my credit report with Experian. To my horror NatWest have registered a default regarding the closed current account - WTF??

 

I wrote to them straight away to ask what the hell they were playing at and for the default to be removed since I had done nothing with that account to justify it, and furthermore I had not been notified. I got a reply yesterday which firstly witters on about my loan account and my inability to meet the repayments back in 2004 (true but they haven't explicitly linked it to this default), and also implies that they may have been sending stuff to my old address, though I informed them 18 months ago I had moved. The letter then says (you'll like this!):

I acknowledge that you have been making repayments and that your Current Plus account was closed on 13 June 2007. I also acknowledge that we have agreed not to pursue you further for the outstanding balance on the Loan account as we have been unable to comply with Section 77 of the Consumer Credit Act. However, the Bank is obliged to record the relevant information on your credit file regarding your Current Plus account. Consequently, we are correct in recording a Default and that the balance was satisfied on 13 June 2007.

 

I trust that my letter clarifies the Bank's position for you. However, if you remain dissatisfied then you can ask the Financial Ombudsman ...

What "relevant information"?!? It seems to me that they have decided to record the default that I was threatened with 3 years ago, now that I have paid off that particular debt. Can they do this?

 

Would appreciate any thoughts before I write back to them.

 

Loz

[davefirewalker]

No they can't

 

They have NO agreement.....!!!

 

it follows that they cant prove that you agreed to anything.......including allowing them to take interest or to pass your data onto third parties.

 

not only would I send them a s10 request (dpa) regarding unlawfully processing your data, but I would look into claiming all the money back that you have paid them.

 

Dave

[loz]

I understand that they can't do anything regarding the loan because they could not produce an agreement, but they have defaulted me in relation to the current account, simply because I closed it. What justification is there for registering a default when the account has been (in their own words) "satisfied"?

 

I checked a couple of times and the default amount according to Experian increased by ~£28 over the course of a month, this amount bears no relation to anything except their monthly charges...

 

Your suggestion of claiming back payments - maybe once I have sorted the default. I'd feel really cheeky though, since I only got as far as paying back ~£600 of the £5000 I owed!

[davefirewalker]

yeah sorry about that...didnt read it properly

 

Let me have a think

 

Did they send you a notice of default ?

 

before they can register a default they have to send you a notice...and it must be in a specific format giving you what you need to do to satisfy the default

 

might be a getout there

 

Dave

[loz]

What I have is a "Formal notice of intention to file a default and take action to recover the debt", dated 11/3/2004; this superceded another notice dated 3/2/2004. They "intend to demand payment.. on or after 25/3/2004" unless I made an acceptable alternative arrangement to pay. Apparently I did make a verbal arrangement of £80 per month which at some point I decided I could afford to increase to £100.

Obviously my issue with all of this is, if they were going to issue a default, why wait until the debt is cleared? If it had been filed at the time then it would obviously have already run for 3 years... Gah!

 

FWIW Dave I have been following your CCA thread with interest, great work fella!

 

Loz

[davefirewalker]

Ok the issue is not about the loan....which they cant enforce, its about your current account.

 

Did they send you a notice of default for your current account? If not we can have them.....As previously said, a default notice must be dated correctly, and have specific wording, giving you the chance to rectify the default, and by what date.

 

if they have defaulted your current account, without issuing a proper default notice, then you can get it removed.

 

try this........sorry for the length

Basic things to remember about this whole process:

 

a) Remember that the three Credit Reference Agencies (CRAs), Experian, Equifax and CallCredit were not constituted by an Act of Parliament. They hold no official Govt. power even though they like to think they do.

 

b) The CRAs are corporations who simply have the technology to store vast amounts of data and have been doing so for years.

 

c) The banks and lenders supply them with information about your accounts not because they are legally allowed to, but simply because YOU agreed to it via your contract.

 

d) CRAs are allowed to hold any data about you that is deemed in the public interest or in the public domain. Things like Bankruptcy Orders and Discharges, CCJs, IVAs, etc. are public information, and you cannot stop CRAs holding this information. You can ask them to mark them as settled, but they do have legal right to hold JUST these on their records because there are actual Laws that allow them to do so, and judges have signed the Orders in all these types of cases. However, agreement 'defaults' do NOT come under those Laws, unless they have been progressed to a CCJ, etc.

 

e) Civil contract details cannot be stored unless you agree in writing. The Data Protection Act states clearly that your account information is personal data and only you have the right to determine who may collate, process and disclose it.

 

f) When CRAs reply with “it’s our legal right” they are talking nonsense. The legal to which they refer is simply the ‘lawful right’ because you gave permission. That permission can be withdrawn at any time according to your rights under the Data Protection Act.

You can see more about this in the copy of the Experian letter also here in the sticky section, where thay actually admit that they have no legal authority and that there is no six year 'rule'.

 

g) You are also allowed to tell any Data Controller (a company that processes or stores your data) to cease to process your data in any fully-automated process. The Data Protection Act states quite clearly that this includes processes that e.g. “affect your creditworthiness”. The actual clause is in the template letter.

 

h) If you decide to opt-out of auto-processing, then you may opt back in again later.

 

i) To ask a Data Controller to do anything you want them to do, including requesting bank statements, you send what is called a Data Subject Notice – you are known in the Act as the Data Subject – i.e. the person to whom the data refers.

 

j) Data is anything on computer disk, paper, etc., that can identify you as a individual person. “all 34-year-old architects” is not personal data, but “Mr A N Other, a 34-year-old architect from 16 Acacia Avenue, Anytown, AnyPostalCode” is personal data as it can identify a particular person.”

 

k) Your contract and all transactions relating to the running and administration of your account is deemed your personal data, as these may be subsets referenced by an account number that, in turn, can be linked to you.

 

l) All Data Controllers have a duty to protect your data, and must hold a Data Protection Act licence (issued by the Information Commissioners Office) to hold and process data. However, this licence does not allow them to disclose data without your express written permission – it is a criminal offence to do otherwise, except for reasons of national security, taxation, health, etc.

 

There is loads more on the Data Protection Act specifics and I might edit and add to this post as time goes by. The above is to give you the basics and the understanding of how to use this in the method below.

 

The Default removal method.

 

My contention is simple…

1) Data Controllers (e.g. the banks, CRAs) have no legal right to collate, store, process or disclose your data without your permission, except data clearly in the public domain.

 

2) But, you give that right to them when you sign your contract – most paperwork includes clauses such as “You allow us to disclose details about the conduct of your account to CRAs, etc….”.

 

3) That contract becomes Law under contractual LAW…however it is still under the ultimate authority of English Law. Any disputes have to be negotiated or referred to Court for a decision.

 

4) Once the contracts ends, nearly all the clauses also end. The lender does have some rights to prove monies owed and then pursue them lawfully, but my argument is essentially that other clauses all end, and the lender cannot arbitrarily choose to assume that the disclosure of Data clauses can carry on. This is a proposed change of contract that they are trying to impose and is therefore unfair and unenforcable under the UTCC Regs.

 

5) If they then continue to disclose data about you to a CRA, they are doing so without your permission, as your permission expired in the termination of the contract.

 

6) You can then serve them with a Statutory Data Subject Notice asking them to desist from doing so.

 

7) The Data Controller then has 21 days in which to conform to your request, or write to you giving lawful reasons as to why your request should be exempted. To do so, he would have to prove a legal Statute, a Common Law case, etc… but none exist. So, they simply turn around (especially the CRAs) and say that they have a “legal right”. They don’t…they are simply stating that they believe that they have a ‘lawful right’ under the contract Law that you agreed when you signed the contract.

They also use other nonsense expressions such as “under credit law”, “six-year permissions”, etc… There is no credit law permission, and the Data Protection Act over-rules contractual Law when it comes to your rights.

The six-year ‘rule’ that they so liberally quote, is them simply getting confused with County Court orders… such as bankruptcy, CCJs, that only a judge can sign.

NOTE: Banks and CRAs cannot sign Court orders.

 

8 ) If the Data Controller fails to show reasonable cause to try and exempt your Notice, then you may go straight to the Information Commissioners Office and ask them to enforce your Notice. You will need to put all the correspondence together with a covering letter.

 

9) You may apply for compensation, only if the incorrect data has caused you financial loss, or other significant inconvenience whilst the incorrect data was used in a process that affected you.

 

10) You can also go straight to the Court and issue a Court Claim to ask a judge to enforce your Notice. You will have to pay a fee, but you can claim this back from the Data Controller if you win. You can also apply for compensation on your Claim – again reasonable costs, damages, etc.

 

11) Damages claims have to be very clear that they caused inconvenience and hardship or distress, so use sparingly. At the end of the day, your primary mission is to remove what you consider is adverse data, not start going off on one for compensation, so stick to your basics first.

 

 

Finally, a few simple rules, that will help your case appear more professional:

1) Check your spelling and grammar – it is shocking to see some very basic mistakes, and it doesn’t give a very good impression if you make basic errors like your and you’re, there and their, etc.

 

2) Send ALL letters (without exception) via Recorded or Special Delivery, and keep a copy, and keep the Post Office receipts and stamped labels. They CANNOT argue if you can prove they got the letter. If you fax anything, keep the send confirmation sheet (sometimes called the transmission journal) – press the button the machine to print one.

 

3) If you phone anyone to discuss the case, use a program like SkyLook (available on this website) to record your calls. Note that it is NOT illegal to record your own telephone conversations – even though the uneducated Muppets in call centres try telling you otherwise. After all, they often record your conversations!

 

The best of British luck, and let’s see if some more wins start coming through – I am working on other aspects of the Data Protection Act and will keep you informed as to how they progress. And remember, that most of this really gets down to who blinks first... they know they don't have a prayer, which is why they are coming up with grasping-straws excuses. Be prepared to take it to Court, or at least the Information Commissioners Office...who knows, we could even end up with a case law in our favour if it went to the right Court.

 

So, to the letter itself…

 

The following was an amalgamation of several previous letters that I had sent for my own cases. This version was written for a friend who is having hell with a bank that adamantly refused to remove a default, and the CRAs involved had written back with many stupid replies that didn’t mean anything, or answer the issue.

 

Within 72 hours of it being received at their Head Office, we received a letter saying that they were happy to remove the default from the credit files, although denied any liability for distress, or breach of duty in relation to the Data Protection Act.

 

 

The Company Secretary

GrabItAll Bank plc

Large Ugly Building with nice view of Thames

Somewhere in London

Postcode

[must go to their company registered address!]

 

[Date]

 

 

 

Dear Sir,

 

Re: Formal notice to desist from processing or disclosing personal subject data

 

I have recently conducted an audit of my personal credit reports supplied by Experian, Equifax and CallCredit.

 

It is noted that there exists, within all three files, an entry referenced as “xxxxxxxxxxxxxx plc” indicating a former xxxxxxxx Loan (now closed) of £x. This is recorded as “In Default” albeit showing a settlement date of dd/mm/ccyy.

 

I am contesting that xs’ continued processing of my data is an unwarranted act and I enclose a Statutory Notice to that effect, which is deemed served as of the date noted on the Royal Mail's Recorded Delivery service audit.

 

My written permission allowing x to continue processing, or disclosing, my personal subject data was revoked upon termination of that original contract and I hereby reiterate that revocation. I also do not recall receiving any such Notice of Default being served on me, as required by the conditions of the Consumer Credit Act 1974. Unless the Bank can provide a true copy of the said Notice, then I consider that any default entry on my credit files to be wholly unwarranted.

 

However, if you can supply the copy, then I also contest xs’ continued processing on the following grounds.

 

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, x 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".

 

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.”

 

As a highly-educated company secretary for a major PLC, 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 x 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. x) 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 x has not applied to HM Secretary of State for an order allowing you an exclusion, which leaves x 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 xs’ Data Controller may invoke his perceived exemption to the DPA, 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 xs’ 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, and by the attached Statutory Notice.

 

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), x 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 DPA 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 DPA 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 xs’ Data Controller to assume continued processing rights of my data at his discretion, nor any exemption. I can then only assume that x 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 x 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 x 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 x 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 DPA.

 

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, if you wish to contest the enclosed Statutory Notice. You should be aware that you have, by statute, twenty-one days in which to either comply with my Notice, or give written notice stating your reasons and why you consider the Notice unjustified.

 

In summary, in relation to this former loan contract, I am formally instructing you, as an authorised officer of the Bank, from this day onwards, to:

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

2) 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”;

 

3) cease to disclose any data to any third party including, but not restricted to, Equifax plc, Experian Ltd and Callcredit plc; and

 

4) instruct Equifax plc, Experian Ltd and Callcredit plc to remove all data pertaining to your records on me, to the extent that no data entry in relation to x Bank plc will exist on my credit files.

 

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 unconditionally comply with my Statutory Notice or I shall have no alternative but to refer the matter to the Court to seek an Order to that effect. Should it be necessary to refer the matter to the Court, then I shall also apply for Court fees and legal costs against the Bank. I shall also reserve the right to seek redress for damages as per the remit of the DPA.

 

 

I trust that I have made my position clear, and that x will now make a serious effort to understand its legal obligations and effect the changes requested. Should you be in any doubt as to the Banks 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, as per the requirements of section 15.3 of the Banking Code.

 

Yours faithfully,

 

 

 

 

 

 

 

 

 

 

 

 

Statutory Notice pursuant to Sections 10 and 12

 

 

 

 

of The Data Protection Act 1998.

 

 

Data Subject Notice

 

 

 

 

 

To: The Data Controller

GrabItAll Bank plc

Large Ugly Building

Somewhere in London SomePostalCode

[replace with registered company address]

 

 

Data Subject: [your title and full name]

 

 

Address: [your full postal address inc. postcode]

 

Whereas I have been a customer of x Bank plc and whereas I consented in my contract with you to the disclosure by you of certain data to third parties, at no time did I consent and neither was it within the contemplation of the parties to the contract that I did consent to the processing by you of that data in any manner which would be unfair or inaccurate or which in any way would breach The Data Protection Act 1998.

 

Therefore, take notice that I require that you cease from processing within twenty one days of the receipt by you of this Notice, or else that you do not begin to process any personal data of which I am the subject insofar as that processing involves the communication or passing of personal data of which I am the subject to any third party and insofar as the said data relates wholly or in part to the implementation by you of alleged defaults or contractual breaches or breaches contrary to The Common Law.

 

This Notice is given on the grounds that the processing or continued processing by you of the said data will be likely to affect my credit rating and my reputation and cause substantial damage and/or substantial distress to me and my family members in addition to that which has been caused to date. And that as the processing of the said data in the way referred to in this Notice would violate both the Principles and Data Subject’s rights of The Data Protection Act 1998, to do so would be both unwarranted and unlawful.

 

Signed

[sign it in pen]

[put your title, initials and surname]

 

Dated this [something -th] day of [month], in the year two thousand and [year].

[loz]

Thanks again Dave, guess I could have searched more but my brain was getting tired

 

I think the gist of my argument will be that they cannot claim the default notice was issued in March 2004 but not applied until May 2007 once it was "satisfied", since that notice was for nearly £3k (and I reached a satisfactory arrangement with them by the date specified), and the default registered is for only £128. Therefore they have not complied with s87 / 88 of the CCA1974 and have passed incorrect information to the CRAs. Incorrect data must be removed, and since the contract is now cancelled they have no further right to issue a default.

 

Does that sound right?

 

Loz

[davefirewalker]

sounds reasonable to me

 

Dave

[loz]

Well they should get my letter today, including a Data Subject Notice - fingers crossed!

 

I should get the title of this thread amended ;-)

 

Loz

[loz]

It just occurred to me that if this issue is about the current account / overdraft, rather than the loan, then do sections 87-88 (as I quoted to NatWest) apply? I checked the 3-yr-old default notice and it was served under 76(1) and 98(1) - I read those sections and can't make head nor tail of whether I've made an error or not :-S

 

Loz

[loz]

I have a reply from Mrs H Britton (Manager, Customer Care Team):

Thank you for your letter dated 24 July 2007 addressed to my colleague Mrs Straw. This matter has been referred to me as I have managerial responsibility for customer concerns within this Department of the Bank. I am sorry to hear that you are not satisfied with our response and consequently I have undertaken a further review of the situation.

 

You have referred to the information the Bank has recorded on your credit file. You have asked for this to be removed on the basis that it is incorrect and as you have not received a Default Notice (DN) for the sum of £128.00.

 

Having reviewed the information in respect of the above account, I would agree that both the amount of the Default Balance and the Default Date are incorrect. To enable me to verify the Default Balance I ordered copy statements on your account, which I have now received. These confirm that a DN was issued on 4 February 2004 and also on 12 March 2004. The outstanding balances on these dates were £2,784.58 and £2,814.10 respectively. In your letter you have said that you received a DN which referred to a sum of nearly £3,000.00 so the balances quoted confirm what you have said. I enclose a copy of the statements for your perusal.

 

The Bank is obliged to record this information on your credit file so this will not be removed. However, as you are aware, this should be recorded accurately. The DN allows you a period of 28 days to make arrangements to repay your account. If we use the date of 4 February 2004 as the start date, this takes the actual Default Date to 3 March 2004 (ie. 28 days later). Consequently, I have arranged for the following amendments to be made:

 

Default Date - 3 March 2004

Default Balance - £2,829.10

 

The other information will remain the same in that your Current Balance is nil and Fully Satisfied as at 13 June 2007.

 

Please accept my sincere apologies for this error and for any inconvenience this may have caused you. I appreciate that it has been necessary for you to write again but I hope that my letter now clarifies the situation and you feel that your concern has been resolved.

 

In the event that you remain dissatisfied, in order to comply with the terms of the Financial Services Authority, I confirm that you may treat this letter as a "Final Response" for the purposes of the Financial Ombudsman Service.

Well it's an improvement, but it still means this damn default will be on my file for the next two and a half years. I am obviously not happy but I'm not sure what I can do now.

 

Loz (whose thread title is still inaccurate!)

[hedgey06]

I'll ask for your thread title to be changed Loz

 

I'm afraid I'm really not up on the default situation - but if Davefirewalker's subscribed to your thread (which it appears he is) I'm sure you'll get a response to the above soon.

 

Best of luck Loz

[loz]

Cheers Hedgey

 

The thing that's bugging me about NatWest's actions, is that the default was not on my credit file until it became "satisfied". That's 3 years they have sat on it, 3 years during which I have been able to get credit OK, and now that I have a need for a decent credit record (I only found out about the default because I was interested in mortgages), I find myself stuffed - it seems I would have been better off in some respects by not clearing the debt at all!!

 

Aside from mortgages etc, I want to consolidate my credit cards and HSBC loan (spit!) into one loan at a much lower rate, but I cannot. Clearly I will struggle to get credit for the next 2½-3 years unless I can convince the Ombudsman that NatWest have made such a balls-up of this that the default should be considered unfairly issued.

 

Anyone any thoughts?

 

Loz

[loz]

*bump*

 

Can anybody suggest what I can do?

 

Loz

[hedgey06]

Hi Loz - sorry for missing your last post. I honestly can't understand what Nat West have done to be honest with you, but that's nothing new as they seem to abide by their own rules that flummox the rest of us.

 

I honestly don't know why they've done this - but I'll check to see if somebody else can understand it and get back to you.

[rory32]

Did you ever receive a default notice?

[loz]

*^&$* hell... NatWest strike again! I was looking through my credit report for something else and I found that NatWest have also issued a default notice for the loan account, dated September 2007. This is the loan account that I did a CCA request on and got nothing back; that in the course of arguing with them about the current account they told me "we have agreed not to pursue you further for the outstanding balance on the Loan account as we have been unable to comply with Section 77 of the Consumer Credit Act".

 

If they could not satisfy a CCA request then they can't file a default, right? Especially as I didn't receive a default notice...

 

Loz