Clearing a default with Experian. . .

[Glenn UK]

S.10(1) relates directly to “processing” and the argument they will use is that the industry regulator deems 6 years to be “reasonable in the circumstances”

 

Im sorry the time frame is not relevant to the argument about causing damage or distress.

As much as the CRA may argue that, the Act doenst say that dmage and distress can be caused for any specific period. The only defence to this is there is no damage or distress, time is irrelevant.

They will argue that the reasonable retention period is six years based on industry practice, since this is primarily what the ICOs opinion is based on as i recall.

 

If you are referring to “automatic processing” then it is S.12(1) which is applicable, not S10.(1).

 

12. - (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.

 

 

And all this requires is the removal of an automated decision making process, not the base format in which the data is stored or published.

 

In summary the subject has a right to stop the data being processed if it will cause damage or distress irrespective of the time period and they further have a right to stop automated processing.

 

Since the act doesnt include a defintion of autmoatic processing it is indeed a thin difference between that and 'processing' for which there is.

 

I do agree the CRAs/Banks will defned their position with vigour and if a subject wishes to take them to court over these issues then they need to be well prepared. However, both sec10 and sec 12 give the opportunity subject to good arguments to be made.

 

Whether ultimatley a court will agee is entirely a matter open to debate.

 

It is also worth adding that the court will take account of various organisations views on the issues, however, ultiamtley it shold be decided on the basis of what the law says.

 

currently the best practice has no support in law something the CRAs (at least Experian i belive) have been forced to accept.

 

Interesting issue though.

 

Glenn

[file_wizzard]

Glenn, completely agree and until this is tested in a higher court unfortunately there will be no quick way forward.

 

the only issue with the "damage and distress" statement / premise is that it must be clearly proved that the processing and it’s inherent impact on the subject are either "unwarranted", “disproportionate” or “unnecessary”.

 

however if a data subject should stand before the court and openly admit to having breached the terms of a contract then the court may well take the view that the publishing is indeed warranted, and the impact on the subjects person or “credit worthiness” is only a true reflection on the way in which they have conducted their financial undertakings, it then becomes a separate matter for discussion as to the time frame of how long this performance data is actually relevant, which brings us back to the recommendations of the “independent” regulator the ICO.

 

Furthermore the court will also be bound to consider the wider interests of the "public" (and I use the term loosely, as what it in fact means is the corporations who provide a "service" to the public) and therefore the terms “warranted” and “necessary” come into play again.

 

I again apologise if my posts here seem negative, but it is my belief that pursuing the CRA’s will do little or nothing in the current climate, and that the time used would be much more wisely directed at the original creditor / primary data controller.

 

The most the CRA will ever do at present is to deflect the issue and just offer to add a fairly feeble notice of correction to the data subjects file.

[Glenn UK]

File Wizzard

 

There is nothing wrong with a healthy dose of reality, even if its not what one wants to hear or indeed what one agrees with .

 

I have had two lots of adverse entries removed now, both in connection with the repayment of bank charges. It seems to me that the best chance people have of cleaning up their credit file is to ask for the removal of adverse entries as part of their claims for charges where possible.

 

I have no doubt that the banks and CC companies are not actually interested in the welfare of the wider public, but only with reducing their financial risks as far as possible.

 

 

JMHO

 

Glenn

[conar686]

Wrong thread

[conar686]

Most of the credit is due to the bold SurlyBonds

[Glenn UK]

Most of the credit is due to the bold SurlyBonds

 

For what?

[conar686]

Posted in error

[conar686]

Not wishing to be negative but :-| - Glenn & FW interesting debate - thanks for doing Experians work for them.

 

I've followed the advice on this forum & produced a letter to Experian based on a number of relevant threads none of which contained the opinions above - to date they have not responded, I gave them to the 12th to do so am keeping my podwer dry.

 

I can see flaws in FW the logic if not in the law.

 

Indeed they do "process" within the definitions of the act, however the line between processing and "automatic processing" is very thin, and this is the argument I imagine they would use.

 

My understanding is - their clients request data on me through an automatic process therefore by issuing my notice I have prohibited xperian from responding automatically - they must inform the requester that this data is only available on written request where they will respond in writing.

 

All I am trying to achieve, at the moment, is time for my claims to come to friuition by getting the CRAs to report only the data I want them to until I get all my ducks in a row & then clear my CR.

 

I also have the fall back positin of taking Experian to court - a position the CRAs have avoided so far.

 

So after all that was it a good idea to send the notice or not?

 

A request for moderators - if we think the CRAs & the banks aren't reading these forums we're deluding ourselves - I'd appreciate debates on threads occuring outside the thread that generated the debate - If I see one word in Mr Hancocks response I'll know we shot ourselves in my :o foot.

[un1boy]

A request for moderators - if we think the CRAs & the banks aren't reading these forums we're deluding ourselves - I'd appreciate debates on threads occuring outside the thread that generated the debate - If I see one word in Mr Hancocks response I'll know we shot ourselves in my :o foot.

 

hi,

 

they do read these threads - someone has had them reply saying that "I understand you ahve been requesting support with legal action from consmeractongroup" and said some of the things they said in their posts.

 

that's why you must only give enough info out so that we can understand ur problem, no personal info etc.....it's sad really that they go to these lengths!!

[file_wizzard]

My understanding is - their clients request data on me through an automatic process therefore by issuing my notice I have prohibited xperian from responding automatically - they must inform the requester that this data is only available on written request where they will respond in writing.

 

I think you are interpreting "automatic processing" in a very literal sense, the definition within the 1998 DPA S.12(1) refers directly to any decision making process being undertaken by automatic means, i.e without human intervention.

 

The publishing of the data it self is not an automated process within the definitions of the act, although I do understand the reason in your logic that the way in which the data is transmitted and provided from the CRA’s records to the searcher is "automatic", however as the data is provided in its raw format, and the “decision” is made by the searcher, I think you will be hard pushed to argue this point to a court.

 

I am also not aware of a single person who has recently taken a CRA to court on this matter, and from what I can gather even the aforementioned Surlybonds has direct all of his injunction cases at the original creditors / primary data controllers and not at the CRA’s.

 

I would however be very interested to see what did happen if anyone did attempt an injunction directly against the CRA’s, however I think they would need to have some fairly serious legal backing as I imagine if the CRA’s contested it (which mindful of the wider implications they undoubtedly would) then it would rapidly be escalated beyond the county courts, probably to the chancery division in the case of a breach of confidence, or the high court for a "simple" data protection issue, in either case the claimant would certainly not receive the same level of protection from costs if they were unsuccessful, and would probably be looking at a cost order of in excess of 10k if unsuccessful.

[Glenn UK]

Not wishing to be negative but :-| - Glenn & FW interesting debate - thanks for doing Experians work for them.

 

 

Hmmm, your welcome, but a point worth bearing in mind is that if one is ill prepared then it is they who do Experians work for them since they are doomed to fail.

 

Before one can take them on, one needs to understand all sides of the arguments if one is to be successful.

 

JMHO

 

Glenn

[file_wizzard]

Not wishing to be negative but :-| - Glenn & FW interesting debate - thanks for doing Experians work for them.

 

I think you misunderstand my base explanation, In my mind, and that of the courts, there is no doubt whatsoever that unless specifically agreed the processing of data beyond the end of the contract is unlawful, this is a plain and simple fact of contract (common law), and if you took this approach to the original creditor then I am certain they would fold almost immediately an injunction application was served.

 

 

However The current tact where people seem to think that an injunction will be awarded directly against the CRA's is (in my humble opinion) very misguided indeed.

 

If you did wish to seek injunction you would have two main options;

 

1. A perpetual injunction

2. an interim injunction

 

A perpetual injunction would only ever be awarded after a trial or other formal determination of dispute, and from the information provided in respect to the cases outlined above neither would appear to have happened.

 

If you were to apply for an interim injunction the base premise of this would be that you would be required to make an undertaking to the court that you foresee no reasonable cause why your claim would fail, nor that the application could be reasonably defended by the respondent, or that you do not expect them to defend at all.

 

I think given the responses provide by the CRA’s in the posts above it is quite clear that they would vigorously defend their position, and if you were to uses their previous correspondence in your case you would only be proving to the court that the respondent has previously advised you that they had the full intention of fully defending your application.

 

It is also very important to understand how the court would view an application, as all they would actually consider at the initial stages of the application is whether the complainant can win and, if so, whether there is a greater risk of injustice to the complainant in denying him interim injunctive relief than there is to the respondent in granting it or vice versa.

 

Because the court is balancing one party's interests against the other, it will not grant an interim injunction without obtaining a promise to the court from the complainant to compensate the injuncted party for any loss or damage that it may sustain from the order should the court later conclude that the injunction should never have been granted. This promise is known as "an undertaking as to damages".

 

So the long and short of it is, yes feel free to pursue the CRA’s , but my honest belief is it will be to no avail, however if you direct your efforts at the creditor / primary data controller then you will probably achieve the same end result much more rapidly, and with a fraction of the effort and risk .

[conar686]

Well it would appear that Mr Hancock does read these threads & has listened to your advice pse see his response below.

 

I appreciate the points both you guys have made I'm now not going to be so open in my strategies, by asking for help we are actually shooting ourselves in the foot.

 

Both of you could have PM'd with your advice rather than debated your legal brilliance so publically.

 

Tks troop

 

Mr H leaves me no option other than to contact the ICO and complain - legal action looks to have a slim chance of success.

 

 

Thank you for your e-mails received 28 February and 4 March 2007.

 

In response to the three points you have raised:

 

a. As I have already advised all our clients sign up to strict terms and conditions within their contract that require them to ensure all their data is accurate prior to providing it to us. Our regulator, the Information Commissioner, considers that this is having taken 'reasonable steps'. I also previously advised that if you believe you have not defaulted and that the information in question is inaccurate I ask that you please clarify why in each instance. I will then also query the accuracy of the specific entry with the company concerned and add a Notice of Dispute alongside the information being queried. To date I have not received a response to this.

 

b. Again, as I have already advised, the Information Commissioner has confirmed that the credit reference agencies do not appear to be in breach of the fifth principle of the Data Protection Act 1998 by retaining account information for a period of six years after the account was last active. Broadly speaking, this principle is designed to make the period for which data is retained something that organisations can define themselves, as long as they can justify their reasons for doing so. We feel that as it was agreed throughout the credit industry and in accordance with the relevant regulatory bodies that six years is an acceptable period to hold account information, that we are fully justified in retaining account data for this period.

 

c. I would refer you to point a) above and would also add that you have previously confirmed that you do hold the accounts in question and have entered into repayment arrangements with the companies concerned.

 

I acknowledge your request under Section 12(1) of the Data Protection Act 1998, that entitles an individual to write to a data controller to require that data controller to ensure that no decision which significantly affects them is made solely by automatic means.

 

I am fully aware of the legislation that you kindly quoted in your letter, which is detailed below for your reference.

 

12. - (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.

 

As a credit reference agency, Experian does not make any automated decisions with regards to your creditworthiness or any of the other criteria that are specified within Section 12(1). Consequently, we do not have to comply with your request to remove the information that we process by automatic means. This is because we are not making any decisions about the information that we obtain and process via automated systems.

 

I have highlighted the relevant part of Section 12(1) that clarifies that it is only when a decision is made by automated processing that you are entitled to have that automated decision reconsidered (s.12(2)(b)).

 

I would like to clarify that our role is to give lenders factual information about you when you apply for credit. This helps lenders as it enables them to review your current and previous credit agreements but also benefits the applicant as they can be granted credit facilities instantly rather than having to prove that they have a good financial history every time they make an application.

 

When a lender asks to see the information we hold, we do not offer any comment or advice. Lenders use the information we give them, along with the information you give on a credit application form, to help them decide whether or not to lend. We are not told if the information we have provided has affected the lending decision or, in fact, what that decision is.

 

If you have been declined for financial services and the lender concerned confirms that the decision was made via an automated process then you do have the right to appeal against that decision and request that your application is manually reviewed.

 

You may wish to quote the legislation you referred to in your letter in support of any request that you may make to a lender for a manual assessment. Furthermore, you may also like to note that if you add an explanatory statement to your credit report, this will automatically mean that your credit application must be manually viewed prior to completion of any automated assessment.

 

You can add a short explanatory statement to your report to make sure that future lenders are aware of your comments. This is called a 'Notice of Correction'. Anyone looking at your report in the future will see your comments and should take them into account before making a lending decision.

 

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 that we think is defamatory, frivolous, scandalous or unsuitable for publication for some other reason.

 

It is also stipulated within Section 5 (Principles of Decision-Making) of 'The Guide to Credit Scoring 2000', that the applicant can appeal for a manual decision to be made if they have been declined purely by means of an automated scoring process.

 

You might wish to view 'The Guide to Credit Scoring 2000', in particular Section 5-7, if you wish to see this in full. You can find this on the Experian website at:

 

www.experian.co.uk/corporate/compliance/creditscoring

 

We believe that your threat of legal action is without merit. Consequently, if you do choose to issue proceedings we will instruct our solicitors to apply to strike out your case and we will seek to reclaim the costs incurred in doing so.

 

If you have any further queries, please feel free to contact me directly either by e-mail at [email protected], by telephone on 0115 9055453 or by writing to me at the following address:

 

Directors' Office, Experian Ltd, PO Box 8000, Nottingham, NG80 7WF

 

Yours sincerely

 

 

 

 

Mr L J Hancock

Consumer Compliance Executive

Directors' Office

[file_wizzard]

Well it would appear that Mr Hancock does read these threads & has listened to your advice pse see his response below.

 

I appreciate the points both you guys have made I'm now not going to be so open in my strategies, by asking for help we are actually shooting ourselves in the foot.

 

Both of you could have PM'd with your advice rather than debated your legal brilliance so publically.

 

Tks troop

 

Mr H leaves me no option other than to contact the ICO and complain - legal action looks to have a slim chance of success.

 

With respect, I am sure the CRA’s staff are suitably qualified and learned to make their own case assessment without the need to refer to anyone’s posts on here.

 

The point of my original post was to inform you of the likely response you would receive based on the simple facts of law and due process which relate to your situation as explained within your original posts.

 

Further to this it would appear that these evaluations of the law as it presently stands have also been adopted by the CRA.

 

I’m sorry if you feel that my posts are unhelpful, however it would be nothing short of complete madness to embark on formal litigation without being fully aware of both the full process and possible ramifications.

[conar686]

With respect, I am sure the CRA’s staff are suitably qualified and learned to make their own case assessment without the need to refer to anyone’s posts on here.

 

To date the CRAs have been completely inept at building legal arguement & resort contiuously ICO guidance - which is not law, so pardon me if, I think you shot us in the foot based on their complete lack of legal arguement in every thread so far.

 

The point of my original post was to inform you of the likely response you would receive based on the simple facts of law and due process which relate to your situation as explained within your original posts.

 

You could have PM'd me not decided to get clever with that other 'helpful chap'

 

Further to this it would appear that these evaluations of the law as it presently stands have also been adopted by the CRA.

 

Well it will be now thanks to you 2

 

I’m sorry if you feel that my posts are unhelpful, however it would be nothing short of complete madness to embark on formal litigation without being fully aware of both the full process and possible ramifications.

 

Finally a point worth making - thank you - & one I am grateful for, however it could have been made more privately. My advise try not to be so publicly clever at the expense of us less legally trained punters.

 

I've aleady responded to the above letter & I will share this by PM'g the people who need to (PM me if you want) know rather than use this thread again - I believe its been compromised.

 

Cheers again FW

[file_wizzard]

To date the CRAs have been completely inept at building legal argument & resort continuously ICO guidance - which is not law, so pardon me if, I think you shot us in the foot based on their complete lack of legal argument in every thread so far.

from the responses you have posted they seem to refer mostly to the 1998 DPA, specifically S.10 & S.12 which is law.

 

 

You could have PM'd me not decided to get clever with that other 'helpful chap'

 

Finally a point worth making - thank you - & one I am grateful for, however it could have been made more privately. My advise try not to be so publicly clever at the expense of us less legally trained punters.

 

Sorry if you feel this way, but this is after all a public forum, and not here solely for your own personal benefit, the points I have made above will apply to anyone contemplating this course of action, and not just yourself

[Glenn UK]

Conar

 

Dont be a nob mate, we have said nothing that is not in the public domain and this site already. The fact you choose to think we have somehow given away your stratyegy is ludicrous in the extreme.

 

FW told you ages ago as did i you need to understand both sides of the arguments to stand any chance, your game was lost before you posted.

 

No offence an all that.

 

Glenn

[Guest ian cognito]

Not sure it will do any good, but here is a reply received from the ICO after querying the rights of the CRA's to accept a company's rights over those of the data subject.

 

Thank you for your email enquiry received 17 December 2006. Please accept our sincere apologies for the late reply owing to the large volume of correspondence we are currently receiving.

In your enquiry you ask the Information Commissioner’s Office (ICO) to “confirm that in the case of a dispute, the rights of a company should be taken over those of an individual and, should this be the case, please confirm the statute under which this rule applies”.

We are not aware of any statutory requirement that favours the rights of a company over those of an individual. Moreover, it is our experience that this is not the case in practice.

From the information provided, I can only infer that you believe a default registered by Vodafone on your credit file is inaccurate but the credit reference agency (CRA) in question will not amend or remove this default.

As an impartial third party, a CRA can make enquiries of credit lenders on behalf of borrowers and can add a “notice of dispute” to a borrower’s credit file where requested. However, whilst a CRA records information provided by credit lenders, it is important to understand that a CRA is in no position to determine whether that information is accurate in the event of a dispute between the credit lender and a borrower.

Nonetheless, it is worth noting that the ICO administers the Data Protection Act 1998 (DPA) which requires that organisations comply with the Eight Principles of good information handling in respect of personal data. In particular, the Fourth Data Protection Principle requires that personal data is accurate and, where necessary, kept up to date.

If you have evidence that Vodafone has or is processing inaccurate information, you can ask the ICO to assess the matter. More information on how to make a complaint can be found on our website (www.ico.gov.uk).

I hope this information is helpful. If you have any further questions, please do not hesitate to contact our Helpline on 0845 6306060 (or 01625 545745 if you would prefer to call a ‘national rate’ number).

Yours sincerely

[conar686]

Glenn - mate

 

I followed advice given by others on in this forum (SurlyBonds & others) who seems to have had a measure of success with the strategy I blag'd.

 

If you look closely at the letter I posted from Experian - you will see the coincidences in Mr Hancocks arguement with those you & FW made. A person who to date had not referred to any legal statue (with any of our Forum subscribers) suddenly becomes an expert - well pardon me if I get a bit 'sus'

 

You & FW are right - it is a public forum - perhaps I could request that you 2 be a bit more aware.

 

Thank you both for your help, we can agree to disagree on the subject above.

[meagain]

A person who to date had not referred to any legal statue (with any of our Forum subscribers) suddenly becomes an expert - well pardon me if I get a bit 'sus'

 

Never underestimate the ability of people working in big companies to get their legal teams to draft legalistic letters for them to pass off as their own.

 

Are you certain this person exists? Some companies have been known to have certain types of correspondence sent out with a "virtual" signature (a la Alan Smithee). Curiously, when people try to speak to this person, they are conveniently "not available".

[conar686]

The guy is or his persona have responded to a number of our posts over the last few months so he's either real or a pseudonym Experian hide behind. I do think Surly got him on the phone a couple of times

 

Life is too short to argue anything for too long. I've learned my lesson & will move on (to a different thread)

[hondamad21]

Ok so this is my responce to the letter I got on the 06-Mar-07 (on page 1)

 

Dear Mr Hancock,

 

Thank you for your letter dated 06-March-07

 

Dear Mr Hancock,

 

Thank you for your e-mail dated 06-Mar-07. I see that you must be very busy, as it seems to be taking you longer and longer replying to my e-mails.

I take on board the points that you have made. As such I have a few questions I would like to seek your clarification on. I believe that we are going around in circles so once I have your response to my questions I will then decide on how I shall escalate my complaint, which I believe is far beyond the information commissioners remit thus I only see court action in resolving this.

1. "Settled accounts would only be retained with your consent as per the terms and conditions you have complied with. As settled accounts have a positive impact on most credit scoring criteria the removal of such an account is only likely to adversely effect the individual to whom it relates."

1. So are you stating that settled accounts can be removed if I withdraw my consent (as was automatically done when my contract cancelled)?
   
2. Your comment . . . "and the advice given will vary depending upon the financial payment history of the individual concerned" are you stating that a person can only remove a settled account from their file if they had a clean payment history?
   
3. If so who decides the range that the credit history falls into to allow the data subject to permission to remove an account?

2. “The full letter also advised we will not be removing any information without direct authorisation from the company concerned.”

1. AGAIN I ask you what legal backing do you have to refuse the data, once the contract with the company in question as been concluded in some cases on amicable terms (i.e. No Default, CCJ . . .)? Please do not state again that 6 years is the agreed term you have still to give me the legal backing for this.

3. I believe that you have over looked a major paragraph in the scanned copy of the letter that was sent to you. I paragraph stated . . . "As discussed I can also confirm that as far as we are aware there is no specific piece of documentation or legislation that provides us with the right to retain your information for six years from the date that account is settled. It was agreed throughout the credit industry that six years is considered a reasonable amount of time for account data to be retained from the point that an account is settled in accordance with the 5th Data Protection Principle."

a.Dose this not invalidate your entire argument?

I have now started court action against Egg plc in regards to this default and their failure to remove it. I hope for a prompt response from you so that I can decide what action to take against Experian.

 

Yours Sincerely,

hondamad

 

 

Dose it look ok???