Dayglo's mission to get his life back!

[dayglo]

I thought that they would of removed it with a little over two months left instead of digging their heels in when once court papers are issued they will remove it. I have just got a default removed from my girlfriends file which is suppose to be taken off in December. It was with Marshall wards and after speaking to them they spoke to their legal deptartment and though they believe that they can leave it on they will remove it within 48 hours as it is suppose to come off in Decemeber anway.

 

:grin: I know - I just can't decide how much effort to put into this.... on the one hand, 2 months shouldn't make any difference, it's the principle, and I want to apply for a mortgage within those two months. On the other hand.... I've got bigger fish to fry.... thoughts?

[ppauls150]

Well when you look at it, it all comes down to the other side. Even if you issue court proceedings you know they can probably string the court case out for longer than the 2 months from when it is suppose to come off. You are not really looking at claiming compensation off them as if you were then it would more than likely have to be a definate claim. If you are looking for a mortage within the next two months then i think that you should issue the court claim. One problem i have with these though is the £150 that you have to pay where as if you make a small money claim with it the court fee is only £30. If you can do this i.e like did you make a DPA request or had to pay for something then maybe just look at claiming this back which will give you the £30 court fee and hope the cave in within the 28 day deadline.

[dayglo]

yeahh............. I know........

 

I think it's a worth a phone call...... I'm just feeling so run down by all this at the moment,

 

I think an early night and a cup of coffee in the morning will fix all!

[Tobes]

I'm still a little confused about this: as far as I know SETTLED accounts remain for 6 years, so do defaults stay on for 6 years, or do they stay on for 6 years when they're settled?

[dayglo]

the current practice is that defaults are removed from your file after 6 years, regardless of whether they are settled or not.

[dayglo]

e-mail received from Experian

 

Dear Dayglo

Thank you for your e-mail received 25 September 2006.

Further to our recent correspondence, I have been contacted by Moorcroft. They requested that I delete the following entry from your credit report, which has now been done:

MR Dayglo , Dayglo's home

MOORCROFT CREDIT CARD/STORE CARD

Default £ 2121 Defaulted 05/01/01 Balance Satisfied

Status history 8

File updated for the period to 17/10/04

Along with this I will also delete the following 'Notice of Dispute' relating to this entry:

"THE ACCURACY OF THIS DATA HAS BEEN DISPUTED BY THE INDIVIDUAL CONCERNED AND WE HAVE NOW CONTACTED THE SUBSCRIBER. CARE SHOULD THEREFORE BE TAKEN WHEN USING THIS ITEM OF DATA TO ASSESS THE CREDITWORTHINESS OF THE INDIVIDUAL CONCERNED".

I will now notify all the companies who have searched your records in the past six months of the amendment.

With regards to London Scottish we have yet to receive a response to the query I raised. I note the letter you have forwarded to us and would draw your attention to the fact they have advised they will notify us via the next monthly update tape they send at the end of October. If I do hear anything before this as a result of the query I will let you know.

If you have any further queries, please feel free to contact me directly either by e-mail at xxxxxx, by telephone on xxxxxxxx or by writing to me at the following address:

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

Yours sincerely

 

now the interesting thing about this e-mail is that, you will note the letters I sent that preceded this e-mail concerned Moorcroft & Endeavour Personal Finance part of (HFC Bank) Nothing at all to do with London Scottish!

 

If this is an example of how easy exerian find it to confuse data, I wonder......

anyway I'll post my reply next.

[dayglo]

Thank you for your e-mail.

You seem to be confusing London Scottish with HFC Bank (Endeavour Personal Finance)

I sent you scans of two letters. 1 from Moorcroft which you have actioned, and 1 from HFC Bank (Endeavour Personal Finance Ltd) who have agreed to remove the entry. I am not satisfied with the suggested timescale of 'end of October'. You have seen the evidence, it is MY data - I am demanding it's immediate removal from my file. I do not see any reason for a delay. You continue to state that 'no data will be removed without authorisation from the subscriber' you also know that I disagree with this and will challenge this in court shortly. However, in the case of HFC bank, you have had the authorisation from the subscriber so please remove the data as soon as possible.

You should also note that neither Vodafone nor NatWest have been able to demonstrate terms and conditions, that I agreed to, either in contract or as additional terms in a 'notice of default' regarding processing non-public data following the end of the contract. You appear to be accepting the 'word' of Vodafone & Natwest in the absence of any documentation or proof. It is MY data, the burden of proof lies with your subscribers to prove it's accuracy. I am telling you that the data is inaccurate. Please remove these two unlawful defaults from my file. Court action is currently proceeding against Vodafone and Natwest.

 

there you go.

[pugsley]

go get them dayglo, hope you are feeling better today;)

[wicket]

Couldn't understand this bit:

 

(and please note that a ‘default’ in terms of your credit file is not the same as a ‘default notice’ under the consumer credit act).

 

So are they saying there are 2 types of default - now, where's my legal dictionary gone !

[dayglo]

Couldn't understand this bit:

 

 

 

So are they saying there are 2 types of default - now, where's my legal dictionary gone !

 

i know!!! is this true and new information?

[Tobes]

Well, a default notice indicates that the contract has been terminated and other lovely legal things; a default marker on your file indicates a certain number of missed payments, up to 8 I think it is, then total delinquency lol but I find it hard to believe that they would default the file but not default the contract...

[dayglo]

ok, earlier in this thread you may recall I complained about the outcome and manner of the complaint to the Information Commissioners Office.... here is the response....

 

The Information Commissioner’s Duties

 

Section 42 of the Data Protection Act 1998 (“the Data Protection Act”) gives the individual the right to ask the Information Commissioner to decide (or make ‘an assessment’) as to whether the processing of their personal data is likely or unlikely to have been conducted in accordance with the ACT. This is the full extent of the Commissioner’s obligations when dealing with data protection related complaints. He is obliged to go no further than this.

 

Our Complaints Policy

 

Where an individual disagrees with our assessment they can ask for us to review it in accordance with our case review and service complaints policy. The review will usually be carried out by the manager of the individual who made the assessment.

 

In this case Casework & Advice Manager Ms X made the assessment. Because you disagree with her view, your correspondence has been passed to me as Ms X’s manager.

 

Background

 

As I understand it, you originally contacted us because you were concerned that lenders routinely share the payment history of closed credit accounts with the Credit Reference Agencies, and therefore other lenders, for six years after the account is closed. You are concerned that Vodafone and NatWest Bank in particular are continuing to share such data without your permission and in the absence of a specific Act of Parliament allowing it.

 

Our Assessment

 

On 14th September Ms X explained that it was unlikely that this practice would breach the requirements of the DPA and gave detailed reasons for her view.

 

Your complaint

 

On 21st September you emailed Ms X’s response back to her making a number of comments.

 

Ms X began by explaining that for the processing of personal data to comply with the first principle of the DPA it must, amongst other things, comply with one of the conditions of processing that is set out in Schedule 2 of the DPA. After discussing why it would be difficult for lenders to obtain an individuals’ freely given consent for the sharing of their data with credit reference agencies (in light of the fact that if individuals did not consent to such sharing, they would not be extended credit) she went on to explain that there was another condition which was likely to apply.

 

This condition is where ‘processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to who the data is disclosed, except where the processing is unwarranted in any particular case because of prejudice to the ‘rights and freedoms or legitimate interests of the ‘data subject.’

 

The commissioner recommends that two tests be applied in order to determine compliance with this condition. The first is to establish the legitimacy of the interests pursued by the data controller or any third party to who the data are disclosed. Ms X has already explained that we recognise that it is in the interests of other creditors to make informed lending decisions.

 

The second test is whether the processing is ‘unwarranted’ by reason of causing prejudice to the rights and freedoms or legitimate interests of the data subject’. It is difficult to see that the disclosure prejudices any rights or freedoms you may have. No one has the right to credit. And although you may well feel that your interests have been prejudiced insofar as the sharing of adverse credit information may reduce your chances of obtaining credit for six years, the important point to consider, as far as the DPA is concerned, is whether this is unjustified.

 

It seems clear that as far as this processing is concerned, the interests of the borrower and lender do not coincide. But given that it seems to me reasonable that lenders should be able to make an informed decision as to who they do business with, that no individual has the right to credit and provided that the information is accurate, relevant, not excessive, held only for a limited period of time and is in compliance with the rest of the data protection principles, then I think it would be difficult to say that the processing would be unjustified and therefore in contravention of the first principle of the DPA. You are dissatisfied that Ms X seemed to believe that the rights of other lenders should supersede your ‘rights as a data subject’. But there is clearly a balance to be struck and your objection to this sharing of data along with you a possible reduction in your ability to obtain credit for a six year period, does not appear to me to be sufficient to outweigh the legitimate interests of the lenders in this situation.

 

You go on to say that Ms X considered only half of this condition and did not mention that the secretary of state may make an order specifying particular circumstances in which this condition is or is not taken to be satisfied. You also said that you doubted that we have asked the secretary of state to make an order in the context of this particular processing (which we did not) and that the ‘spirit of the law is clear, it is for the secretary of state to determine whether schedule 2 section 6 applies’. I disagree.

 

Section 42 of the DPA puts the commissioner under specific duty to decide whether the DPA is likely or unlikely to have been complied with in any given case where he asked us to do so. There is no provision in the DPA that calls on us to ask the Secretary of State for his view when as assessment of the DPA schedule 2 section 6. You contacted us to explain why you think the processing in the credit industry breached the DPA. We responded by explaining why we did not agree.

 

You then said the paragraph about the six year retention period was irrelevant. Again I disagree. In your original correspondence you specifically mentioned the six year retention period and Ms X gave you some background information about how this period had been agreed upon. You say that the recommendations that ‘six years’ was a relevant time frame did not find its way into the DPA. You are quite right. But this does not mean that the retention period is therefore invalid.

 

The important point, as Ms X explained, is that the fifth principle of the DPA states that personal data is processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes. You maintain that the purpose for which you wanted the relevant data controllers to process you data ended when your account was closed. But the purposes mentioned in the fifth principle are the purposes determined by the data controller not the data subject.

 

Ms X also explained that it is common practice, at this particular time, for lenders to consider an individual’s past credit account performance as well as current credit commitments when deciding whether to extend credit. You have described this paragraph as insulting and you have questioned Ms X’s belief in it’s accuracy. I can tell you that as far as this office is concerned the statements are entirely accurate. I can furthermore tell you that it was not intended as an insult and I cannot see any reason for it to be taken as such.

 

Conclusion

 

I am sorry that Ms X’s response has saddened you and your family but I am satisfied that she reached a reasonable decision in this case.

 

You questioned the validity of our case review and complaints procedure asking how can I conduct this review when I was involved in Ms X’s original response. The fact is that I have no previous involvement in this matter. I understand that in constructing her response Ms X took advice from senior members of staff, but I was not involved.

 

Yours Blah blah blah

 

Senior Casework and Advice Manager

 

[dayglo]

and here we have the response from Equifax... Don't hold your breath!

 

Dear Dayglo,

 

I write with regard to your letter dated 8th September 2006 addressed to xxx xxxx of the written escalations department and relating to the audit carried out by you of you personal credit file. This letter was passed to the legal department for my attention.

 

I believe that the two key issues in your letter are Equifax’s right to retain and process your data and I shall address each in turn.

 

Retention of Data

 

As you letter states, it is standard practice agreed by the trade associations and the credit reference agencies CRAs that account information is held by the CRAs for a period of six years after the account was last active. The Crowther Report on Consumer Credit in 1971 expressed support for the view that a statutory time limit should be considered and suggested that a period of 6 years should be adopted. As this was already the practice of the CRAs it was decided that statutory recommendations were not required.

 

As you may be aware, the purpose of the personal credit file is to enable grantors of credit to review the financial history of consumers when they apply for credit. A lender will take into account an individual’s current credit commitments and the preceding 6 years of an individual’s credit commitments and the preceding 6 years of an individual’s credit history.

 

The reason for this is to encourage responsible lending decisions by such credit granting institutions and to prevent consumers from becoming over indebted, which is, as you may know, a considerable concern within the industry at the moment. As a consequence, this historical information is highly relevant to lenders for the purposes of credit referencing. It is therefore the view of both Equifax and the Information Commissioner’s Office that the retention of this information for 6 years beyond the closure of the account does not breach the fifth principle that personal data shall not be kept for longer than is necessary for the purposes it is used for.

 

For the reasons I have identified above it is Equifax’s view that we are processing your personal data fairly, within the first principle, on the grounds that the processing is necessary for the legitimate interests of the CRAs and the leners. (paragraph 6 Schedule 2 of the Data Protection Act)

 

Section 10 Data Protection Act

 

In you letter you also refer to Section 10 of the Act which, as you state, awards the data subject the right to request that the data controller discontinues the processing and disclosing of his/her data. Section 10 sub-paragraph (1)(a) and(b) states that the processing of such data must be likely to cause the data subject substantial damage or substantial distress must be unwarranted.

 

We do not believe that you have established that, or provided specified reasons why, our continued processing of your data has caused you substantial damage or substantial distress and this is or would be unwarranted. We feel that it would be irresponsible of Equifax to remove your credit history information, as this may result in you being unable to obtain credit, or being given credit which you would otherwise been unable to obtain, which may in turn lead to over-commitment.

 

For the reasons set out above we are not able to remove all your records and information from our systems. You may want to refer this matter to the Information Commissioner’s office etc.

 

Should you wish to take this matter to court you should be aware that Equifax will vigorously defend this claim.

 

Yours Sincerely,

 

Legal Adviser

Equifax Plc

 

yes i did manually type these two letters in, all for your benefit you lucky folks!

[jimfishybob]

Hmm....

 

I don't suppose....

 

They couldn't have....

 

You don't reckon...

 

...They've collaborated on this do you?

 

Surely not.

[david.m]

if this could be proved jimfishbob, wouldnt that become a very serious thing, the The Information Commissioner’s office is linked to the GOVT is it not, what would Queens Council make of all this ?.

[dayglo]

There has been a 'let's get our story straight' series of meetings between the ICO and the 3 CRAs.

 

The 'key' indicator - is to look out for reference to the 'Crowther Report' - this is the reddest of all herrings. It talks about 'it would be a good idea if we included 6 years into the DPA' - but THEY DIDN'T ACTUALLY DO IT!

 

I'll try to compose a few thoughts that I'll turn into a reply. But I think most of us can see where this is heading.

[Tobes]

lol that manager was patronising and is sooooooo obviously biased...Can you take the appeals process any further?

[dayglo]

received notifiction from the court - NatWest have acknowledged the claim and intend to defend.

[Tinkerbelle]

received notifaction from the court - NatWest have acknowledged the claim and intend to defend.

 

Good stuff

Keeping fingers crossed for you!

[dayglo]

no news yet from Vodafone.

 

Interesting conversation though regarding court timetables.

 

I filed on the "15th September", it was deemed served on the "21st September" (another six days!)

They have until 21st + 14 = 5th October to acknowledge.

although, the court say that they have a 5 day turnaround time for post. Which means even though I could request judgement on the 6th, an acknowledgement of service from Vodafone could in theory arrive on the final day and not be actioned until 12th October. So what starts off as 14 days, turns into an amazing 27 days? Is this right? I thought the additional 5 days that court adds onto the time between filing and issuing accounts for any postal issues?

[dayglo]

Good stuff

Keeping fingers crossed for you!

 

NO! not good at all I wanted a 'can't be bothered defending, we'll remove the default as goodwill etc letter!'

 

(I know that may still come...)

 

or I wanted the time to run out and apply for judgement by default.

[Tobes]

lol don't worry Dayglo, they HAVE to mark it as though they'll defend because otherwise they'd have to admit to it lol and you know they won't act so quickly as to get everything settled before they have to acknowledge the claim...Basically it's just the same as penalty charges, as I'm sure you're aware!

 

(of course, they could actually enter a defence and turn up to defend, but we actually believe in our arguments, and I don't really believe there's much financial risk, so that's ok)

 

Perhaps:

 

1. They're bluffing, as with penalty fees, they'll settle soon, because:

 

a. they think they'd lose

b. they think it's not an important point to fight

c. it's not financially worth their while

 

2. They intend to defend and go all the way, because:

 

a. they believe they're right

b. it's an important point to fight

c. they want you to gie up and to disourage others

 

 

NO idea really which is the more likely!

[Tinkerbelle]

It is good, they obviously need that extra time to knock together the nonsense answer they will be sending you, along with their goodwill gesture of removal.

 

Have faith.

 

They all defend.

 

Not only does it give them extra time, but it stops you from going in and hitting that judgement button. ;-)

[wicket]

Good luck Dayglo. Sympathise with your position - just the mere mention of "intend to defend" gets me anxious - I'm in the same position as you but not quite as far down the road so every step you take I'm following a few days down the road.:o

 

I hope the other posters are right and that the "goodwill" gesture will follow. After all, what do they stand to gain financially by defending fully? It will cost them money and they will gain nothing financially from it - short or long term - your no longer a customer of theirs (and probably never will be again), they can't bleed any more money from you and certainly no other financial organisation is going to support them financially as they fight their own cause. The books won't balance - I think they'll cut their losses.

 

It still irks me though that there is no definive answer for this. 6 years is too long for a default. There is no balance of justice - 6 years for a £40 default = bad credit and 6 years for a £10,000 default = bad credit. Especially as defaults may get refreshed every 6 months. At least a CCJ is removed 6 years from judgment - the default could stay on many more years than 6 from the original default.

 

Perhaps if lenders were more understanding and flexible of defaults eg size, age etc we wouldn't all be pushing so hard for justice

[david.m]

but JUSTICE IS GOOD ,unless your an MP (lets sneak in a prelude to the ID cards data and add a clause to let banks and CRAs share all the data before the data protection act came in, to protect the people of course, make more money guv, no not me mi-lard sniff.....