Dayglo's mission to get his life back!

[dayglo]

ok another phone call - this time from the ICO.

 

to summarise their postition.

 

1) Consent is not needed as Schedule 2 part 6 applies

 

2) They have written to Experian to advise them that the recent letter from them (see surly's sticky) is incorrect

 

I have the right of appeal etc.....

[dayglo]

Check out the exapmles at the end of the CCA. I have to fly now but I'm sure that least one of them relates to goods or services being supplied with payment in arrears and therefore extending credit facilities by default to the hirer,this is consequently covered by the CCA. Whether they like it or not.

 

ok - cheers Jimfishybob (btw - yours is the best avatar i've seen in ages!)

[pford]

ok another phone call - this time from the Information Commissioners Office.

 

to summarise their postition.

 

1) Consent is not needed as Schedule 2 part 6 applies

 

2) They have written to Experian to advise them that the recent letter from them (see surly's sticky) is incorrect

 

I have the right of appeal etc.....

 

Schedule 2 part 6 then goes on to say

 

(2) The Secretary of State may by order specify particular circumstances in which this condition is, or is not, to be taken to be satisfied.

 

 

So the Information Commissioners Office now got powers above the Secretary of State?

 

Anyone every seen such an order been made?

[pford]

found this on the ico web site makes some interesting reading

 

What Price Privacy

[Tinkerbelle]

I received this from one of the CRA's today

=========================================================

Concerning the defaulted account you should be aware that when an account is defaulted it is the creditor who has terminated the account, not you. They will have terminated the contract because you breached the terms and conditions. The Consumer Credit Act 1974 provides legislation with regards to the process a company must follow when terminating a contract in this manner and the rights afforded to them after the date of default.

I would suggest you read Part VII of the Consumer Credit Act 1974 (Default and Termination).

 

A company’s rights when defaulting an account are provided under Section 87 of the Consumer Credit Act 1974.

87 Need for default notice

(1) Service of a notice on the debtor or hirer in accordance with sections 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by any reason of any breach by the debtor or hirer of a regulated agreement, -

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e) to enforce any security.

Default notices will advise that if you not comply with the company’s request to make certain payments to the account, or bring it back into line with the original terms and conditions, they will terminate the contract and demand repayment of the total sum in full. They also state they will advise the credit reference agencies that you have defaulted.

I would draw your attention to Section 88(4) as outline below:

88 contents and effect of default notice

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply wit it.

Therefore, by not complying with the conditions of the default notice you are allowing the company to impose further conditions upon you which are not set out in the original terms of the contract.

If you have any concerns regarding the legitimacy of the default entries I suggest you refer back to the original terms and conditions of each particular account and the default notices you will have been sent. If you do not have these available I suggest you contact the companies concerned directly.

======================================

[jimfishybob]

I received this from one of the CRA's today

=========================================================

Concerning the defaulted account you should be aware that when an account is defaulted it is the creditor who has terminated the account, not you. They will have terminated the contract because you breached the terms and conditions. The Consumer Credit Act 1974 provides legislation with regards to the process a company must follow when terminating a contract in this manner and the rights afforded to them after the date of default.

 

I would suggest you read Part VII of the Consumer Credit Act 1974 (Default and Termination).

 

A company’s rights when defaulting an account are provided under Section 87 of the Consumer Credit Act 1974.

 

87 Need for default notice

 

(1) Service of a notice on the debtor or hirer in accordance with sections 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by any reason of any breach by the debtor or hirer of a regulated agreement, -

 

(a) to terminate the agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

Default notices will advise that if you not comply with the company’s request to make certain payments to the account, or bring it back into line with the original terms and conditions, they will terminate the contract and demand repayment of the total sum in full. They also state they will advise the credit reference agencies that you have defaulted.

 

I would draw your attention to Section 88(4) as outline below:

 

88 contents and effect of default notice

 

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply wit it.

 

Therefore, by not complying with the conditions of the default notice you are allowing the company to impose further conditions upon you which are not set out in the original terms of the contract.

 

If you have any concerns regarding the legitimacy of the default entries I suggest you refer back to the original terms and conditions of each particular account and the default notices you will have been sent. If you do not have these available I suggest you contact the companies concerned directly.

======================================

 

That's all fabulous. Thank you Mr. CRA. However, you seem to have left out the bit that shows there's a legal entitlement for them to do this.

 

What's that?

 

There isn't a bit like that?

 

Oh dear.

 

Never mind.

 

I assume then that if the default notice said it was ok for them to nick my kids and poison my dinner, that would be ok too would it?

 

Glad we got that cleared up.

[Tobes]

I got exactly the same letter, though he also implied I was trying to avoid paying debts! I wonder what would happen if I were to mention the word 'defamation'?

[Wolfy]

Mention it, mention it.

[dayglo]

This is a fully paid up historical debt, yes?

 

In which case the contract has come to an end and so long as nothing in the original contract gave Voda rights to retain and / or process your data in perpetuity then I can't see any argument for any CRA to have your information on file.

 

Pete

 

I know! Vodafone argue that the ICO set guidance for companies, Vodafone follow that guidance. The ICO are now saying that it doesn't really matter what it says in the contract as consent isn't even required!

 

anyway - I filed my N1 forms on Friday, 1 for Natwest and 1 for Vodafone and I'm £300 lighter. I'm starting to think that's £300 I won't see again....

[Tinkerbelle]

I know! Vodafone argue that the Information Commissioners Office set guidance for companies, Vodafone follow that guidance. The Information Commissioners Office are now saying that it doesn't really matter what it says in the contract as consent isn't even required!

 

anyway - I filed my N1 forms on Friday, 1 for NatWest and 1 for Vodafone and I'm £300 lighter. I'm starting to think that's £300 I won't see again....

 

Have faith

[dayglo]

Thanks Tinks. I know you lot will be there when it gets tough.

[jimfishybob]

I agree.

 

In fact, there's an argument that this is even more unlikely to go to court than a request for bank charges. If a bank goes to court and loses over penalty charges then the industry stands to lose a few billion quid from the many billions it makes. If the credit reference industry is taken to task and loses then, (precedent or not), their is a real possibility of a revolt and the whole industry collapsing.

[dayglo]

ahhh, it's not that simple though. I'm taking Vodafone to court. If they lose, it costs them nothing (ok £150 costs) and they say, if they do lose, they are going straight to the ICO and the CRAs for recompense.

[Tinkerbelle]

ahhh, it's not that simple though. I'm taking Vodafone to court. If they lose, it costs them nothing (ok £150 costs) and they say, if they do lose, they are going straight to the Information Commissioners Office and the CRAs for recompense.

 

So that means that the CRA's and the ICO will have to sort this out once and for all, otherwise they'll end up having to fork out a lot of dosh to private companies. I like it

[jimfishybob]

Why would the CRA's give them recompense? They (apparently), only supply the data that Vodafone have instructed them to supply? So, Vodafone would claim against the CRA's for doing what they told them to do?

 

The I.C.O. I can understand, but then if the whole industry hadn't been constructed on huge slab of nepotism, The I.C.O. would have had the balls to actually represent the consumer in the first place rather than toadying to the needs of monopolistic corporations whose only gain in all of this is a little "f*** you" because you are no longer a customer of theirs.

 

The I.C.O. deserve all that's coming to them.

[dayglo]

well, the CRAs give example 'template' clauses to include in their standards Ts & Cs - if they lose they are going to argue that the CRAs supplied misleading guidance in those templates.

[dayglo]

ditto the ICO

[dayglo]

So that means that the CRA's and the Information Commissioners Office will have to sort this out once and for all, otherwise they'll end up having to fork out a lot of dosh to private companies. I like it :grin:

 

that's what worries me rather than cheering me up Tinks.

I just think there is too much to lose for the country as a whole if there is any relaxation in the application of credit risk management data. An unfortunate byproduct of any victory here is more people successfully apply for more credit and the govt. have made it crystal clear this must not happen, so the ICO, CRAs and data controllers are all under pressure to tighten the rules, reduce credit limits, close dormant accounts and loads of other measures. This would be a step in the opposite direction - that's what worries me. still - chin up eh?

[jimfishybob]

This could be acheived by responsible lending. Responsible lending means checking that an individual has the means to repay credit rather than did they pay somebody £20 a few months late 5 and a half years ago.

 

The thinking that that the credit industry couldn't operate responsibly without the CRA's is a fallacy, they did for years before they were even a twinkle in the lenders eyes. In fact, prior to the CRA's I would guess that there was far less irresponsible lending than there is now.

 

Besides, what effect does how my finances were operated when I was 24 have any bearing on how they are now? This is an irrelevance as far as risk management goes. I could have a £100,000 a year job now, but couldn't get a mobile phone.

[dayglo]

This could be acheived by responsible lending. Responsible lending means checking that an individual has the means to repay credit rather than did they pay somebody £20 a few months late 5 and a half years ago.

 

The thinking that that the credit industry couldn't operate responsibly without the CRA's is a fallacy, they did for years before they were even a twinkle in the lenders eyes. In fact, prior to the CRA's I would guess that there was far less irresponsible lending than there is now.

 

I'm a bit of a statistical buff myself, and I have to concede that from a purely statistical view, (not legally, not morally, not ethically etc.) that the current system is very effective.

 

I fear that returning to the 'golden age' where a loan was based on wether or not the local bank manager knew that your dad was 'basically a good egg' is unlikley to be popular in govt.

[jimfishybob]

It would operate just as effectively if the six years were reduced to two.

[dayglo]

I think a sliding scale for defaults would work... something like

 

>5k = 6 year

[Tinkerbelle]

that's what worries me rather than cheering me up Tinks.

I just think there is too much to lose for the country as a whole if there is any relaxation in the application of credit risk management data. An unfortunate byproduct of any victory here is more people successfully apply for more credit and the govt. have made it crystal clear this must not happen, so the Information Commissioners Office, CRAs and data controllers are all under pressure to tighten the rules, reduce credit limits, close dormant accounts and loads of other measures. This would be a step in the opposite direction - that's what worries me. still - chin up eh?

 

As I said on your other thread they need to look at the whole issue surrounding Defaults and CCJ's. For those of you who missed it, it's here

[Tinkerbelle]

It would operate just as effectively if the six years were reduced to two.

 

I'm sure a Bankrupt can be discharged in less time than it takes for £4.99 default to drop off your file.

[dayglo]

as ever Ms. Tinkerbelle - you are quite right.