barclaycard default removal

[Guest willowb]

Thanks Dayglo, that was much appreciated:D

 

here is my letter before action.....

LETTER BEFORE ACTION

 

Dear Ms Williams,

I refer to your letter dated 4th October.

I would like to raise some points with you....

 

 

You say that a default was not issued in 2003. It is clearly stated in my credit file that a default was issued on the 28th februrary 2003, therefore was the information that you were supplying to the CRAs false information?

 

You say that you 'suspended' the account on the 20th January 2006 and then on the 15th of Februrary you issued a formal demand, which I never saw. You sent this to Gregory Pennington, you should have by law sent this to myself.

 

There was also a timescale of 26 days between suspending the account and issuing a default (but still my file says it was issued in 2003???) nethertheless, this is not correct procedure according to the Banking Code and you did not allow enough time.

 

You say that the formal demand (which I did NOT receive in the first place) mentioned the recent default notice and therefore you felt no need to issue another. The said default notice was NOT recent. It was, according to my credit file (the people you supply this information to) issued in Februrary 2003 when the account was defaulted.

 

 

I issued barclaycard with a statutory Notice on the 29th September which allows you 21 days to remove the default notice from my file, If you have not completely removed the default from my file by the 20th October 2006 I will be pursuing this case in Court. At Court you will have to show the Judge why you believe that you are exempt from my statutory request. you will also have to show that I gave you permision IN THE FIRST PLACE for you to process my data and for you to disclose it to the CRAs. Considering the fact that you seem to be unsure as to when you actually defaulted the account (as the information YOU have been supplying already to the CRAs for the past 3 years conflicts with what you are now telling me), I think that the Court would take a dim view of this. I would refer you to all the points made in my first letter.

I sincerely hope that the matter can be resolved out of Court and that you do remove the default from my file immediately.

 

 

Yours Sincerely,

 

 

Better????

 

Wxx

[gargoil]

Go get 'em tiger!!

[Guest willowb]

Just got a certified copy of the default notice from 2002:( .....will still be taking them on with SBs arguments, I'll send that letter off today......oh boy, if it goes to Court guys, I'll be a mumbling numpty:confused: ......me thinks I'll have a lot more reading to do!!!

 

So, this can't be ventured with MCOl because it's not a monetry matter, so what form do I get from the Court? I'm in Preston today so I'd appreciate a speedy response:) Is it N1??

 

Wxx

[Guest willowb]

Go get 'em tiger!!

Roooooooaaaaaaaaarrrr LOL

Wxx

[gargoil]

Im not familar with the english system but I believe you need to ask for a small monetary amount as damages to allow you to use the N1 small claims system!!

[dayglo]

Just got a certified copy of the default notice from 2002:( .....will still be taking them on with SBs arguments, I'll send that letter off today......oh boy, if it goes to Court guys, I'll be a mumbling numpty:confused: ......me thinks I'll have a lot more reading to do!!!

 

So, this can't be ventured with MCOl because it's not a monetry matter, so what form do I get from the Court? I'm in Preston today so I'd appreciate a speedy response:) Is it N1??

 

Wxx

 

This is becoming a common question and there are two views. You must choose which one you think represents the best choice for you. I'll try explain, as I see it, what the issues are.

 

1) A non-monetary claim costs £150 in court fees and cannot be done online, must be done in person via an N1 form. You can download a copy from the library, fill in the brief details and particulars of claim I used the following for mine

 

"The Claimant signed a civil contract with the defendant on dd/mm/ccyy in which it was agreed that the disclosure of personal data in relation to the contract would extend only to such times as the conclusion of the contract.

At no time did the Claimant grant permission, either expressly or implied, for the defendant to abritrarily extend that permission to store, process or disclose any personal data beyond the cessation date of the contract.

It is the Claimant's contention that the defendant's perceived right to abritrarily choose to extend the length of that contract without the Claimant's knowledge or agreement would be unlawful and unenforceable under the provisions of the Unfair Terms in Consumer Contracts Regulations (1999).

The defendant has failed to provide the Claimant with any evidence to prove agreement to such terms in perpetuity, and it is therefore the Claimant's contention that the defendant is in breach of both the contract itself and the Data Protection Act 1998, by the defendant's continued disclosure of personal data."

 

That way, the only issue you are discussing is the default.

 

The other alternative, as mentioned by gargoil, is indeed to add an amount of 'damages' and present the case as though the 'damages' is the main issue and 'removal of default' is secondary. This puts it inline with the normal charging mechanism that is already well understood as follows

 

up to £300

£30

£300.01 - £500

£50

£500.01 - £1,000

£80

£1,000.01 - £5,000

£120

£5,000.01 - £15,000

£250

£15,000.01 - £50,000

£400

£50,000.01 - £100,000

£700

£100,000.01 - £150,000

£900

£150,000.01 - £200,000

£1,100

£200,000.01 - £250,000

£1,300

£250,000.01 - £300,000

£1,500

over £300,000 or for an unlimited amount

£1,700

To issue proceedings where your claim is for something

other than money

 

 

£150

 

 

The downside with this method is that, if it ever does reach a court then you have to prove your damages. That is actually quite hard to do when you think about it. If you claim for 'distress' you would have to show medical evidence to back this up. In my opinion, you risk losing the 'default' agrument because of the 'damages' claim and an attempt to save some money on court fees.

 

The upside of this method is that if it doesn't go to court, then the company in question may just agree to pay you your damages claim (if it's lower than the cost of them defending). Ffocus did this with Vodafone and looks like walking away with a removed default and £1k in his pocket - well done him.

 

My preference though is to keep it to the real issue in hand which is the default removal only claim and that is £150, N1 in court in person.

 

Good luck.

 

link to court fees

[Guest willowb]

Thanks Dayglo and gargoil......I'll go down the 'non-monetary' route. Hopefully they'll just remove the bloomin' thing rather than meet me in Court, but if it does get that far perhaps I could hook up a live audio aid with SB so can talk me through it in Court!!!LOL:oops:

 

I did read Ffocus's thread, but it's all a bit too complicated and I haven't got the balls (literally:lol: ) to do it. If it does go to Court, am I liable for their costs if I lose?

 

Wxx

[dayglo]

I did read Ffocus's thread, but it's all a bit too complicated and I haven't got the balls (literally:lol: ) to do it. If it does go to Court, am I liable for their costs if I lose?

 

it's very unlikely that you will be liable for their costs but not impossible.

 

if they acknowledge your claim, and they choose to present a defence, and they apply for it to be on a 'multitrack' without a hearing and you don't request 'small claims track with a hearing' and it goes all the way to trial then you MAY be liable for their costs.

 

To avoid this - keep it simple, keep it on small claims track and you'll be fine.

[Guest willowb]

Thank you....will do :>)

 

Wxx

[Guest willowb]

Got a letter from B'card yesterday...basically asking for me to delay further action until the 9th November whilst they try and deal with the complaint. I know that it's a delaying tactic so I'll proceed as soon as I have the £150squid to do so! Also, can you get an N1 form pdf? Saves alot of hassle going to the Court with the kids!!!

 

Wxx

[dayglo]

Also, can you get an N1 form pdf

 

PDF N1 here

[Guest willowb]

Cheers dayglo:)

 

Wxx

[Guest willowb]

Right, N1 form is filled in (thank you dayglo and Tinks:) ) and will be sent off this afternoon:o

 

Wxx

[Tinkerbelle]

Good Luck!

[Guest willowb]

Thanks honey :>)

 

Wxx

[Guest willowb]

Hi, just for the record...the Court sent the form back because they needed 3 copies sending. So, start again! sent 3 copies today. Slight amendment, I've put £5 in the claim for postage costs etc so that the claim costs me £30 as apposed to £150. This is because I'm doing 2 this month, so it makes a difference!

 

Wxx

[Guest willowb]

Ahem....they have until the 7th of December to file a Defence:rolleyes: ......Oh boy!!!

 

Wxx

[Tinkerbelle]

*giggle*

 

 

Oh boy indeed!!!

[dayglo]

Ahem....they have until the 7th of December to file a Defence:rolleyes: ......Oh boy!!!

 

Wxx

 

how are you feeling about this? What will you do if they file a defence?

[Guest willowb]

Hi Dayglo:)

 

I'm feeling ok thanks. I find inspiration in certain people on this site and it keeps me going! When/if they file a defence............I'll sh*t meself!!!:o .....ahem.....no I won't.....I'll fight the blighters:p

 

Wxx

[Guest willowb]

Letter received from B'card today. They are argiung the toss over issues discussed as above. At the end of the letter they suggest I take it further with the FOS if I'm still not happy with their decision not to remove the default................ERRRRRRM I have filed a claim with the Courts.....You acknowledged it last week:rolleyes: . This isn't their defence to my claim but it did say this in their letter....

 

Regardless of the status of an account, data is automatically submitted to the CRAs on a monthly basis. Compliance with our obligations under under the DPA and indeed, all the laws and regulations which govern the way in which we conduct our business..........GROAN GROAN:p Whatever!!! let's just see your Defence and take it from there shall we?

 

Wxx

[Guest willowb]

Right, letter back to them.....just to make it completely clear what my contentions are:)

 

Thank you for your letter dated 9th November 2006.

As you should now be aware, I have filed a claim against Barclaycard. I feel that I need to reiterate my contentions expressed in previous correspondance between myself and Barclaycard for you to fully understand what my particulars of claim are.

 

 

I am contesting that Barclaycard's continued processing of my data is an unwarranted act. My written permission allowing Barclaycard to continue processing or disclosing my personal subject data was revoked upon termination of that original contract and I hereby reiterate that revocation.

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, Barclaycard 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".

 

The matter has been taken 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 They were challenged to quote the exact Statute that includes this so-called "legal right", they remained remarkably quiet. Only after a 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."

 

"standard industry practice" does not correlate with "legal right".

 

Further investigation has also led to the conclusion 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 Braclaycard 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. Barclaycard) 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 Barclaycard has not applied to HM Secretary of State for an order allowing you an exclusion, which leaves Barclaycard 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 Barclaycards’ 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 Barclaycards’ 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), Barclaycard 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 Barclaycards’ Data Controller to assume continued processing rights of my data at his discretion, nor any exemption. I can then only assume that Barclaycard 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 Barclaycard 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 Barclaycard 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 Barclaycard 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.

 

I apologise for repeating points that you may or may not have already read in my previous correspondance to you. In my view this issue needs to be heard by a Court, I am quite willing to be the person who brings the matter to a Judge's attention. Financial Institutions such as Barclaycard should cease to believe that they have a legal right to continue abusing people's data, when in fact there is no legal right for such practices which exists in UK law.

I hope this clarifies my position to you.

Yours Sincerely

Ahem.......right then.......

 

Wxx

[dayglo]

any news yet?

[Guest willowb]

Morning cheeky!

 

No! no news, I think they have (as well as Abbey) until friday to submit a defence so I'll phone the Court then.

 

Funnily enough I've just checked our credit file and the blighters are still registering a default with the CRAs even though the accounts are well and truly in dispute!!!

 

There's no point in writing this week though I may as well wait until they defend.....what d'ya think?

 

Wxx

[dayglo]

agreed. sadly there is no requirement for a CRA to adjust the default flag just because the account is in dispute.

 

I agree, no point writing any further just yet.

 

have you gone treasure hunting yet?