Black Horse - Data Protection Info to be removed

[Penfold92]

Hi guys,

 

I want to try to clear my credit file of all closed contracts as they do not have permission to conintue processing data without my permission. Black Horse is one I wish to tackle first. So far I have not started Court action and am merely in the process of seeing where I go with normal letters, plus I hope they see sense and sort this out without the need for Court Action!

 

This is the first letter I sent:

 

Dear Sirs,

RE: Default on my Credit File

 

I recently obtained a copy of my credit file from Experian. I was concerned to note that your company has placed a "Default" notice against my name as well as multiple missed or late payments. There is no account number on the file nor do I have any letters from you to confirm this account. The start date is down as the 08/01/2003 and the monthly payment is down as £68 per month. To my knowledge this was included in my IVA of 2005 and settled last year in July. To aid you in finding my account details my previous address was Somewhere.

Further to this I do not have a recollection of ever receiving such a default notice, and I therefore require you to substantiate this data at your earliest convenience.

 

 

1. You must supply me with a true copy of the alleged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit). Your obligation also extends to providing a statement of account. I enclose a £1 cheque in payment of the statutory fee.

2. You must supply me with a signed true and certified copy of the original default notice

 

3. Any deed of assignment if the debt was sold on

 

I would request that this data is provided to myself within the next 28 days, if you are unable to provide this data then I must insist that it is removed from my files as unsubstantiated.

 

Yours faithfully,

 

 

Well they did write back and here is my second letter:

 

Dear Jean Goodey,

RE: Agreement 44555XXXXX

 

Thank you very much for replying so promptly to my letter dated 19th March 2008. As I see it under the Data Protection Act you are required to hold all information for upto six year after the relationship has ended, but I am sure you are fully aware this refers to obligations under the Companies Act as well as money laundering. However, it does not allow you to process my data without my written permission. Please find enclosed a Statutory Notice pursuant to Sections 10 and 12 of The Data Protection Act 1998. This means you are to cease processing my personal data unless you can provide documentary evidence that you have my written permission to process it.

 

This is now a formal instruction to you, as an authorised officer of Black Horse Limited to ensure that you, from this day onwards, do:

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 any Black Horse account 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, legal costs and redress for damages as per the remit of the Data Protection Act. I also refer you to the cases of Woodchester Lease Management Services Ltd v Swain & Co NLD [1998] and Kpohraror v WoolwichBuilding Society [1996], where damages were awarded for the continued breaches of the Data Protection Act.

 

I would also like to point out that I am confused by your response to my Default question. Are you saying I was defaulted or not? Could you please clarify this in your response to me?

 

I trust that I have made my position clear, and that Black Horse Limited 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 Compliance Executive, then I would advise that you consult your corporate counsel or Data Protection Manager.

 

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 sincerely,

 

 

 

 

And this is now their reply so it looks like I am getting close to Court action time as they are not budging on this...views please on their "standard industry" response?

 

http://i306.photobucket.com/albums/nn275/pmflkapskycom/BlackHorse1.gif

 

http://i306.photobucket.com/albums/nn275/pmflkapskycom/BlackHorse2.gif

 

Penfold

Edited June 27, 2008 by Penfold92
spelling

[Guest Old_andrew2018]

Bump

[Penfold92]

Ok now they have sent the following response:

 

http://i306.photobucket.com/albums/nn275/pmflkapskycom/BlackHorse3.gif

 

Now what is curious is the statement "no further processing of your data relating to this agreement will need to take place."

 

Yet they are not removing what is there or correcting it...So ignoring my issue. They have marked a default, yet have not supplied the notice which is directly against the CCA. Any suggestions on a nice reply back telling them to remove all data?

 

Am I merely saying ok so you obviously agree that you are stopping to process my data and therefore you cannot share this anymore and so all data needs to be removed from the CRA's?

 

Thanks,

 

Penfold

Edited June 27, 2008 by Penfold92
spelling

[Penfold92]

I'm thinking of sending this now:

 

Compliance and Admin Executive,

Black Horse Finance,

116 Cockfosters Road,

Barnet,

EN4 0DY

LETTER BEFORE ACTION

 

Dear ,

RE: Agreement 4XXXXXXXX

Thank you very much for your letter dated 30th April 2008. I am glad that you recognised and that you will action my Statutory Notice to cease processing my data. I do, however, note from my credit file that you have not removed all references to this account and Black Horse from it and thus are, in fact, continuing to process and share my data. This is a direct breach of the Data Protection Act, as you will no doubt be aware, and a summary offence under the Act. I trust you will rectify this immediately and confirm in writing that this has been done.

I trust that you will now comply with my full request and I will not be required to take legal action.

Yours sincerely,

 

Penfold

[Penfold92]

Ok next installment:

 

http://i306.photobucket.com/albums/nn275/pmflkapskycom/Blackhorse4.gif

 

I love the paragraph about "...considered fully by the credit reference agencies and by lenders such as ourselves and has been the subject of full discussion with the Information Commissioner. We are satisfied that this does not result in any contravention of the Act."

 

Well I don't suppose they do think it is...but there is still no legislation that even mentions 6 years let alone stating a contract is in force even after is has been terminated...

 

Penfold

[aladinliverpool]

Ive just sent off the standard CCA to these gits. only 3 days left of the 12 and havnet replied. so quite interested in how you are getting on with them.

Quite a story actually. had a car through lloyds UDT at my old address. got reposessed years ago. then saw a default on my file at my new address for about £2600. account closed. dated september 2006

 

nothing has been signed at my new address. So CCA'ed them them to see what they have. I know ive got them by the short a curlys!

[Penfold92]

See what they produce then take 'em to the cleaners if they do not respond...I will be as soon as they are not cooperating...

 

Good luck though,

 

Penfold

Edited June 27, 2008 by Penfold92
spelling

[Rathercross Charlie]

Penfold,

 

Only yesterday I was in court with a very similar claim to yours, however, although I lost the judge was extremely helpful in pointing out how I may have won!

 

I did pick up some useful info and I have a similar DPA action to take against Black Horse myself, which will incorporate revised arguments in light of yesterday.

 

There is a point regarding continued "processing" of data which may help.

 

The judge was comfortable with my S.10 claim that required processing to cease (the bank's terms regarding sharing of data after termination were unclear), however the bank claimed that after the agreement was paid off no further processing took place, however we know that's B***s as Experian and the like all say "our records are updated monthly by the lenders (who own the information)"

 

Can you prove "damage" to you or your family caused by this data?, this is required by S.10.

 

IMHO you won't get anywhere with S.12 (advice from another judge!)

[Penfold92]

Hi Charlie,

 

Thanks for that info and I will keep an eye on your threads. You raise an interesting point indeed...

 

OK with regards the continued processing we can show credit files being updated by printing them off and showing the updated dates. We can also state that "sharing info" is also a breach as we did not allow this on the ceasation of the contract and therefore no record should be showing with the CRA's at all.

 

With regards damage, well the precedence has been set by the Kpohraror v WoolwichBuilding Society case and this can be put into financial terms by giving an example of altered interest rates due to their inaccurate data.

 

 

Penfold

Edited June 27, 2008 by Penfold92
spelling

[car2403]

Also, s.10 doesn't require damage, as it states;

 

(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

 

The Judge is probably right in that you can't "show" damage, but you only need to show a likelihood that the processing will cause damage - there's a distinct difference.

 

For me, this puts the evidential burden on the Defence, in that they need to refute this likelihood of damage being caused by their processing, which I can't see how they can?

 

Also, if you rely on the advice of the ICO regarding defaults, etc, he makes it clear what circumstances they should and can be registered in. Most of my claims haven't complied with that, which is further (albeit pursusavive) authority for arguing your case, IMHO.

 

The key to these claims is to have a full understanding of the issues, as these legal opponents will hone in on the fact your a litigant in person and that the Judge is a numpty (a techincal term, not a libel comment, as he won't understand the Act fully, as he - like you and I - haven't had legal training on the subject) when it comes to interpretation of the Act. Remember that the Judge can only decide on the arguments put forward, not on what he thinks/believes to be true, to an extent, so the stronger your argument the better the chances of a win.

[Rathercross Charlie]

Chris,

 

You are indeed correct, my comment about the requirement to show damage or distress is a box that needs ticking, rather than a huge stumbling block. Opposing counsel tried to request proof, but the judge slapped him down.

 

Where you are absolutely correct is in the importance of marshalling the argument. Both judges in the preliminary hearings admitted they knew nothing of the DPA, opposing counsel didn't seem to know much either. What he did do was focus in on the "processing ceased the date the agreement ended" argument and the judge went with it.

 

Where I think this left me was with a clear admission in open court that they no longer have any control about what equifax et al broadcast, which would seem to be an untruth...

 

Charlie

[car2403]

Chris,

 

You are indeed correct, my comment about the requirement to show damage or distress is a box that needs ticking, rather than a huge stumbling block. Opposing counsel tried to request proof, but the judge slapped him down.

 

Where you are absolutely correct is in the importance of marshalling the argument. Both judges in the preliminary hearings admitted they knew nothing of the Data Protection Act, opposing counsel didn't seem to know much either. What he did do was focus in on the "processing ceased the date the agreement ended" argument and the judge went with it.

 

Where I think this left me was with a clear admission in open court that they no longer have any control about what equifax et al broadcast, which would seem to be an untruth...

 

Charlie

 

I'd take a different view.

 

Processing (i.e. updating the data shared) does cease once the balance is clear. The CRA will, however, continue to "process" (i.e. store) historical data for 6 years.

 

When you query a CRA about the data, (revoking consent to share, for example) they check with the data controller. If the DC confirms the data is accurate, the CRA won't remove it. The CRA, therefore, is the one in the wrong, as they are sharing data that they don't have consent to share, (this is probably the view the Judge took) but the DC is party to that, in that they confirm the accuracy of it, but can't confirm the legal right to continue sharing.

 

This relationship between CRA and DC is all very suspicious, as pointed out in this thread;

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/112671-cag-cra-r-club-post1520567.html#post1520567

 

For me, the DC is responsible for informing the CRA to remove the data (confirmed by s.14(3) DPA 1998, which allows the Judge to remove the data shared) and the CRA just relies on their permission from the DC to share that, even though the DC doesn't have permission to share it (be that current, or historical data) with the CRA.

 

A working example? If I crash in to the back of your car and thrust you forward so that you crash in to someone else, did you cause the accident? If you didn't are you responsible for the damage? The answer is no and yes, because you caused the damage, but I caused you to cause it. This does get very complicated...

 

I firmly believe that the Courts need to call these DC's to account, as the DPA clearly outlines their responsibilities - the CRA just does what the DC tells them.

[Penfold92]

Where I think this left me was with a clear admission in open court that they no longer have any control about what equifax et al broadcast, which would seem to be an untruth...

 

Charlie

 

To say the least! And as we have stated before even if they did stop processing they are not removing the accoutn and therefore allowing (indirectly) the sharing of your subject data that you withdrew!

 

I think we need to come up with a few paragraphs together that can be used in POC's that will help hundred's if not thousands!

 

Fancy the task guys?

 

Penfold

[Penfold92]

How about this for a start:

 

 

Edit/ delete and add away guys as no doubt it is full of errors and jibberish!!!

 

 

1. The Claimant is said to have had an account (Numbered: XXXXXXXXX) with the Defendant. This was opened on or around XXXX

2. The Claimant made a formal request for a copy of the signed, executed credit agreement for the above account under Section 77(1) and Section 78(1) of the Consumer Credit Act 1974 to the Defendant and enclosed the statutory required £1 fee. This cheque was cashed and the agreement produced./ OR yet no agreement was produced, which the Claimant construes as a direct breach of the Consumer Credit Act’s rules on the use of the statutory fees.

3. The Claimant also requested sight of any default notices issued and these were/ were not supplied.

4. The Claimant sent a Data Protection Act 1998 Subject Access Request to the Defendant on XX/XX/2008.

5. The Claimant then served a Statutory Notice pursuant to Sections 10 and 12 of The Data Protection Act 1998 on XX/XX/2008.

6. The Defendants refused to comply with this formal legal request and were warned that Court Action would follow to enforce this formal request.

7. The Defendant placed a ‘Default notice’ on the Claimant’s credit file at a number of credit reference agencies relating to the account. The Claimant has asked for evidence of the correct serving of said Default Notice as per the requirements under the Consumer Credit Act and this has not been provided. The Claimant therefore avers that the default notice cannot have been issued in the prescribed formats.

8. Therefore the Claimant asserts that the Defendant did not correctly or accurately serve the Default notice and therefore breached Section 88 of the Consumer Credit Act.

9. The Claimant contends that the contract, that was originally signed with the Defendant, only gave permission to process data during the term of that contract. That the contract was terminated on XX/XX/XXXX, whether or not a Default Notice was correctly served.

10. The Claimant also contends that the contract neither included any other permission, nor did it imply that the Defendant’s perceived 'rights' to process the Claimant’s data would be ‘in perpetuity’. There was also no clause contained within the contract that stated that the Defendant had any arbitrary right to continuing processing data after the ending of the contract.

11. The Claimant cannot recall any clear statement that gave his express permission for the Defendant to continue disclosing his subject data to third parties after the end of the contract. The Court is 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.

12. Due to Company Law the Defendant is allowed to keep a copy of the data for its own purposes only and the Claimant acknowledges this entitlement only.

13. If the Defendant avers that it has ceased processing the Claimants personal data regarding the account then it is also required to cease sharing the data. This involves the complete removal of the account details from all third parties.

14. Accordingly the Claimant Claims:

a) the sum of £XX as compensation for the defendant’s breach of section 13 of The Data Protection Act 1998, for the period from XX/XX/XXXX to XX/XX/XXXX under Section:13. - (1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage. This sum claimed represents £XX per day, which is the amount which the claimant calculates he would continue to lose as a direct result of being unable to obtain cheaper credit due to the Default notice applied to the Claimant’s credit file. This includes credit in the form of mortgages, loans or credit cards;

b) Failure of a Default or Termination Notice to be accurate not only invalidates such Notice, (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, (Wilson v First County Trust Ltd [2003] UKHL 40, Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson v Pawnbrokers [2005] EWCA Civ 147) but would also give the Claimant a claim for damages in the sum of £1,000. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

c) Additionally, the Claimant requests an order from the court under section 14 (4 & 5) of The Data Protection Act 1998 for the removal of the default notice and any other prejudicial information from all credit reference agencies:

(4) If a court is satisfied on the application of a data subject—

(a) that he has suffered damage by reason of any contravention by a data controller of any of the requirements of this Act in respect of any personal data, in circumstances entitling him to compensation under section 13, and

(b) that there is a substantial risk of further contravention in respect of those data in such circumstances,

the court may order the rectification, blocking, erasure or destruction of any of those data.

(5) Where the court makes an order under subsection (4) it may, where it considers it reasonably practicable, order the data controller to notify third parties to whom the data have been disclosed of the rectification, blocking, erasure or destruction.

e) Court Costs;

Edited May 22, 2008 by Penfold92
changed a few bits and re-editted it

[Penfold92]

Here is the letter I got from Equifax (so far it is just showing on my online account, but I trust they will post it!)

 

Dear Penfold,

 

Thank you for your recent enquiry.

 

Many Lenders have agreed to share (I love this already) details of their customers’ credit agreements with each other. This allows the Lenders to check how an individual has repaid credit agreements to other lenders and will provide an indication of whether an applicant can afford to repay future agreements. Credit Agreement information shows the last four years’ worth of your account’s monthly balance.(do these guys actually know anything for certain?)

To enable the Lender to share this information, details of their agreements are stored with one or more credit reference agencies. This information, known on your Credit Report as Credit Agreement (account) information, is stored and updated as supplied to Equifax by the Lenders. This information can only (lovely) be amended by the lender directly or by Equifax upon receipt of written instructions from the client.

 

We acknowledge your comments concerning the details recorded on your Credit Report. This information can only be amended by either the lender directly, or by Equifax upon receipt of written instructions from the lender. If you believe any of the entries are factually incorrect we have a Disputes Team who can investigate this further for you.

 

If you would like us to investigate any entries on your behalf, please update this incident below or write to us at the above address. If you wish to dispute more than one entry please raise each item in a separate incident.

 

The information you supply should include:

 

• Details of the entry being disputed

 the account name,

 account start date,

 current status of the account,

 current balance of the account,

 address that the account is located

• The reason why you are disputing the entry

• Any supporting documentation

 

Upon receipt of your updated incident we will contact the supplier concerned to verify the accuracy of the details we hold and we will add a notice to your Credit Report to show the entry is "in dispute".

 

Please be assured that we will proceed with our investigation as quickly as possible. We will ask the supplier of this information to respond to us within 21 days after which we will contact you with the outcome.

 

If you require further information on the content of your credit file, you may wish to visit: https://equifaxuk.custhelp.com. Here you can view our Frequently Asked Questions and submit an on-line query or attach supporting documentation via our "Ask a Question" facility, with no concerns about postal delays.

 

We hope the above details are of assistance to you.

 

Equifax Customer Services

(Equifax Commercial Services)

 

Equifax Plc is registered in England with Registered No: 2425920. Registered Office: Capital House, 25 Chapel Street, London NW1 5DS.

Equifax Commercial Services Limited is registered in the Republic of Ireland with Registered No. 215393. Registered Office: IDA Business & Technology Park, Rosslare Road, Drinagh, Wexford.

 

The information contained in this communication is confidential, is intended only for the use of the recipient named above, and may be legally privileged. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please resend this communication to the sender and delete the original message or any copy of it from your computer system.

[car2403]

You probably won't get that letter in the post - you need to print it off and save it locally, as it will expire in your account and you won't be able to access it.

 

Have you followed up the reply with a response? It does get like reply tennis with this lot, but I took great pleasure in escalating the issue and telling them where they were wrong! (I should get a life, really!)

 

http://www.consumeractiongroup.co.uk/forum/barclays-bank/110184-car2403-barclays-bank-default-2.html#post1195811 (from post #22)

[Penfold92]

I just got a response saying that they will send me it in written format!

 

As for the tennis, yup I might sent another letter as I am not ready to issue the POC's

 

Prabs

Edited June 27, 2008 by Penfold92
spelling

[car2403]

The only thing I would add to the POC would be s.14(3) for the removal of the data from the CRA as well.

[Penfold92]

The only thing I would add to the POC would be s.14(3) for the removal of the data from the CRA as well.

 

 

Did I not cover that under accordingly the claimant claims: C) above? Not sure if you are talking about the same thing and if so I have put a different section, which one should we put?

[Penfold92]

Is this not the better part of Section 14 to use:

 

(4) If a court is satisfied on the application of a data subject—

(a) that he has suffered damage by reason of any contravention by a data controller of any of the requirements of this Act in respect of any personal data, in circumstances entitling him to compensation under section 13, and

(b) that there is a substantial risk of further contravention in respect of those data in such circumstances,

the court may order the rectification, blocking, erasure or destruction of any of those data.

(5) Where the court makes an order under subsection (4) it may, where it considers it reasonably practicable, order the data controller to notify third parties to whom the data have been disclosed of the rectification, blocking, erasure or destruction.

[Penfold92]

OK I have re-editted the POC's so it is easier to discuss the ones in question, ok?

[Penfold92]

On my Equifax file this debt shows as a Default / Delinquent Balance £414 and "PARTIAL SETTLEMENT - Payment received as a full and final settlement although the payment would not fully clear the balance."

 

Now what is very interesting is that the arrears show from 2002....However I never missed a payment until 2005 so they have marked this COMPLETELY incorrectly! Inaccurate data is an offense under the Act and allows for damages.

 

Penfold

Edited June 27, 2008 by Penfold92
spelling

[Penfold92]

Latest Update, time for Court Action, I got another letter back just stating the data is correct etc and that's that.

 

Fair enough then I have tried for over a year to rectify this and they are not playing ball.

 

Penfold