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Removal of Default, section 10, not accepted, what now??


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Hi all,

 

First i would like to say many thanks to the contributors of this forum, I have learnt so much from just reading the cases other people have posted on here and the kind responses by the contributors of this forum.

 

With regards to my post, i found a template on this site which contained a 5 page letter someone created for the removal of a default notice. It seemed more indepth and agressive than the other, smaller templates that i have seen , and was met apparently with a full removal of the notice after 3 days. I cannot for the life of me find this post now, after searching on the site and also within an advanced google search of the site. Anyway, I tried this letter (will put at end of post) and after 14 odd days I received a rejection reply (will post after original letter).

 

I feel i should now ask for the copy of the notice and inclose my £1 postal order, but i cant help but feel my letter has been totally disregarded and not even read properly. Can anyone advise as to the best next course of action?

 

*************************

ORIGINAL LETTER:

 

The Company Secretary

National Westminster Bank PLC

135 Bishops Gate

London

EC2M 3UR

 

*************

***********

***********

***********

16/07/2007

 

 

Dear Sir/Madam,

 

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,three separate entries referenced as the following:

“National Westminster Bank” indicating a former Loan (now closed) of £1588.

This is recorded as “In Default” albeit showing a settlement date of 06/09/2005.

“National Westminster Bank” indicating a former Loan (now closed) of £580.

This is recorded as “In Default” albeit showing a settlement date of 06/09/2005.

“National Westminster Bank” indicating a former Loan (now closed) of £37.

This is recorded as “In Default” albeit showing a settlement date of 06/09/2005.

 

I am contesting that Natwests 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 Natwest 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 Natwests 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, Natwest 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 Natwest 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. Natwest) 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 Natwest has not applied to HM Secretary of State for an order allowing you an exclusion, which leaves Natwest 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 Natwests Data Controller may invoke his perceived exemption to the Data Protection Act, 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 Natwests 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), Natwest 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 Data Protection Act 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 Data Protection Act 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 Natwests Data Controller to assume continued processing rights of my data at his discretion, nor any exemption. I can then only assume that Natwest 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 Natwest 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 Natwest 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 Natwest 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 Data Protection Act.

 

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 Natwest 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 Data Protection Act.

 

 

I trust that I have made my position clear, and that Natwest 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

National Westminster Bank PLC

135 Bishops Gate

London

EC2M 3UR

 

 

Data Subject: *****************************

 

 

Address: ****************************

 

Whereas I have been a customer of Natwest 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

 

 

 

 

 

***************

 

Dated this 16th day of July, in the year two thousand and seven.

 

*********************************

BANKS RESPONSE:

 

Dear Mr XXXX

 

DATA PROTECTION ACT 1998

 

I am in receipt of your Section 10 notice under the terms of the data protection act, 1998.

 

I have reviewed the circumstances involved in this request. I would inform you that, given the processing of your personal data is necesary for us to fulful our agrement with you and we do not accept your notice under sextion 10 of the data protection act 1998 and do not intend to comply with it. I further consider that our processing of your personal data is fair, and warranted in the circumstances.

 

Yours faithfully,

 

Joyce E Tudor

Regulatory Risk.

 

2nd Floor Business House B

P O Box 1000

Edinburgh

EH12 1HQ

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  • 1 year later...

I have an update on this and am once again looking for the guidance of you wise members!

 

It has taken some time (understatement!) but I have finally got to a stage where I have to either bite the bullet or accept a fair offer.

 

Quick overview:

The case is currently stayed until 30th October ‘to enable parties to attempt settlement’.

 

Lloyds solicitors (Cobbetts) have written to me and have offered the removal of two of the three defaults which relate to menial amounts, but will not remove the default on the third account. Throughout the entire process Cobbetts have maintained that they cannot provide me with a signed copy of the default served as it was electronically sent.

In their letter they claim that they have a strong defence to my claim ‘particularly in light of the fact that as it stands’ your claim is not fully pleaded, hence the reason why our client was required to file an embarrassed defence’. I’m not sure exactly what this means to be honest, as I filled out the form online via MCOL with the following prose:

On the 13-05-2003 the Defendant

filed 3 defaults against the Claimant. The

bank account was closed by the Claimant

prior to the filing of said default

notices. The Claimant has never received

said notices. At no time did the Claimant

grant permission, either expressly or

implied, for the defendant to extend the

permission to store, process or disclose

any personal data beyond the close of the

account. The Defendant has admitted they

cannot provide signed copies of original

notices, therefore default notices was

never served on the Claimant, breaching the

ConsumerCredit Act 1974 Sec 87,88 hence the

default entries have been wrongly entered.

The Claimant has tried to reach an amicable

solution with the Defendant without

involving the court with no success.

Therefore, the Claimant is also claiming

costs of #200 due to research, costs, time

taken and effort in bringing the case to

court. As well as the deletion of the

Default entries on his credit record.

Regardless, I am unsure what the best course of action would be next, and if I were to refuse to settle, what this would entail in terms of next steps?

Any assistance would be most gratefully received!

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