Default Notice - Wont remove

[Allyxia]

I sent Open Uni SBA the standard letterfor removel of a default.

 

They have replied todaywith the usuall no.

 

It is a four page letter with is very legal and Im havingprobs getting to grips with it myself.

 

I have broken dowb some key points on which they are refusing so any advice would be eternally grateful.

 

1."Your account has not been canclled but terminated by us.......therefore we can continue to disclose information"

2."....you signed copy of T & C and Credit Agreement.....agreeing for us to disclose......."

3.They have contacted Experien and were quoted

"The processing is nessary for the purposes of legitimate inertere4sts pursued by the data controller or by the third party or parties to whom the data are disclosed, except where rge processing is unwarrented in any particular case because of teh prejudice to the rights and freedoms or legitimate interests of the data subject"

 

They havce responded with "whilst it may be prejudice to someone with adverse entries ...... it does not make to prejudice to all individuals"

 

4. With regards to the six years of processing, They state that as this is the practice by all CRA, and teh Crowther Report sugested a satutory time limit of 6 years, and is common practice, blah blah blah.

 

 

5.The fifth data protection principal, they had this to say

 

"as a consequence this ....information....is relevant for purpose of Credit refrering...and is not in breach of the fifth principal"

 

If anybody else has had a long winded letter back I would be grateful for any advice as this is the only blot on my credit file. (but it is still holding me back - belive it or not)

[Tinkerbelle]

Sounds very much like a letter I received also, and it's all codswollop as far as I'm concerned.

 

Below in 6.1 is what they are using as an excuse to process data.

6.1 OUSBA may disclose information relating to the status of your OUSBA account to any credit reference agency or debt recovery agency to assist in the making of credit decisions or the prevention of fraud, or the recovery of money owing to OUSBA. OUSBA may also disclose your OUSBA account status information to the OU or the OU’s subsidiary companies for student welfare purposes. This is to allow the OU to impose academic sanctions in order to assist the recovery of moneys owing to the OUSBA, and to allow the OU or its subsidiaries to make credit status decisions in future dealings with you. Academic sanctions may include but will not necessarily be limited to cancelling a registration for your current course(s), withholding examination results, academic credit and rewards, and refusal to reinstate you as a student except at OU’s discretion.

 

However, they seem to be blind to the section immediately following 6.1. The bit that actually states what you actually consented to:

 

6.2 You hereby consent to the transfer of personal information from the OU’s computer systems and other records to OUSBA sufficient only to establish and maintain the computer records needed to operate your OUSBA account. A full list of the information that may be transferred between the OU and the OUSBA is available on written request.

 

You will also see from their letter that they actually went to the CRA for advice on how to deal with this :o , and not only that. but they did a copy and paste from the CRA response. Read the letter again, and you will see that there are no facts stated in it, just lots of "in our view", "industry practice" and "it would appear" . The response from OUSBA is very similar to the responses that are coming out of Experian. Talk about incestuous!

 

They can't even come up with a sensible response to a simple request, so I don't know how they intend to stand up in front of a judge and argue their case.

[Allyxia]

tink - were you realy up at 02;52? have u got a baby as well?

 

do you have any advice on what I can do next as Im about to submit my mortgage application?

[Tinkerbelle]

LOL... No kids no!

 

I don't have any advice.....yet.

 

I've yet to draft a response but I haven't had time yet. I can see it ending up being court action though. The fact that they had to contact Experian to find out what to do, can't be good for them as far as I'm concerned.

[Allyxia]

Thanks very much Tink, really really appreciate this. I dont care what it takes.

 

The thing that makes it stink even more was, I got it when it wasnt my fault.

 

I was supposed to pay for half of the course and my employers half. I was on Mat leave when our finance worker left and by the time a new one had been recruited and sorted out the paper work I got slapped with a default, I ended up paying it in full in the end.

 

I even wrote to OUBSA whilst all of this was going on to explain, but as the account was my name they didnt listen. i even wrote to them when it went to court, but they just fired ahead. It was annoying actually coz I was only on Sat Mat pay at the time as well - I never would have done the course if I couldnt pay for it. It seems that despite all this they have no better nature to appeal to!

[Tinkerbelle]

What do you mean by "I even wrote to them when it went to Court" ? Did they issue you with a court summons or something?

[Allyxia]

No a bailiff turned up to my door, and took down details of my TV etc, thats was the first I heard of it so I just paid up.

 

(I know but atthe time I didnt know not to allow bailiffs in etc etc. To be honest I just had my first child and was left with a broken back and hadnt been well for 6 months so I wasnt really in the mood to argue)

[Tinkerbelle]

No a bailiff turned up to my door, and took down details of my TV etc, thats was the first I heard of it so I just paid up.

 

(I know but atthe time I didnt know not to allow bailiffs in etc etc. To be honest I just had my first child and was left with a broken back and hadnt been well for 6 months so I wasnt really in the mood to argue)

 

Good grief! :o

 

Well it looks like one more letter re-iterating facts. Give them 7 days otherwise it's court.

 

That's what I'll be doing as soon as I get back from hols. Can't be bothered to stress myself out about it right now to be honest.

 

The contract clearly states what was consented to in section 6.1.

 

6.2 You hereby consent to the transfer of personal information from the OU’s computer systems and other records to OUSBA sufficient only to establish and maintain the computer records needed to operate your OUSBA account. A full list of the information that may be transferred between the OU and the OUSBA is available on written request.

 

 

There is no contract so they have no rights despite what they claim.

[Tobes]

Tink, 6.2 isn't a summary of 6.1, they both apply!

[Tinkerbelle]

Tink, 6.2 isn't a summary of 6.1, they both apply!

 

Didn't say it was, but 6.1 says what they may do. Not what they will.

 

There is absolutely nothing in the contract that says that they have a legal right to process any data after the termination of a contract, and all their reasons that they have come back with so far amount to noting more than clutching at straws.

[Tobes]

'may' means they can if they want to.

 

I wasn't arguing the point about post-termination rights, after all I now have three claims at the County Court arguing just that

[Allyxia]

Tinks did as you sugested so will sit back and wait and see what they respond within their next legal letter. to be honest when I sat down with some P & Q I unpciked their letter, it wasnt that legal at all just a lot of gobbldy gook.

 

Fingers crossed.

 

Did you have a nice hols?

[pford]

2 Right to prevent processing likely to

cause damage or distress

 

An individual can serve written notice

 

prohibiting Data Controllers from processing

data that can cause ‘substantial damage or

distress’. The Data Controller has 21 days in

which to give evidence that they have

complied or, instead, to give the reasons

why they think that the individuals request

is unjustified.

Examples of causing substantial

damage or distress:

 

•

Sending letters to dead people or

to their family, relating to the

deceased

 

•

Passing adverse data relating to

business premises rather than the

occupants to debt collectors

 

•

Revealing payment details to a

third party without consent

[pford]

Do I have to obtain consent

from individuals to process data

on them?

 

 

This is probably the most onerous duty of

 

 

Data Controllers and the Data Protection Act

1998. It gives Data Controllers responsibility

for obtaining consent from individuals to

process their personal data and to ensure it is

processed fairly.

People have to ‘signify’ their consent, which

must be interpreted as a positive

communication from the individual that the

data can be processed.

Failure to reply to a message from a Data

Controller to the effect that personal data is

being held and accessed does not mean that

consent has been given.

Individuals must be made aware of the

purposes the data will be processed for;

for example:

• For analysis to market other

products and services

• To use for telemarketing

• To determine credit limits

Consent, also, must be ‘specific’ and

‘informed’. This means it has to be relevant

to all the uses registered, including the type

of information to be held, the purposes of

the processing, the type of people who may

be given access to it and the length of time

that it might be on file (which can be

‘indefinitely’) .

 

 

[Allyxia]

Ok this is a bit of the letter I sent them....Too late for now if its wrong but hay hoo I was willing to take that chance

1. You state in your letter that by signing the terms and conditions of the Credit Agreement, I have agreed for my information to be shared and released to Credit Reference Agencies.Yes I did agree to this, but only during the duration of my contract with yourselves. You state in your letter that contract was indeed terminated by yourselves on 8th January 2002. Under Statutory Law these terms and conditions became null and void.

I also draw your attention to Statutory Notice pursuant to Sections 10 and 12,

of The Data Protection Act 1998, which was enclosed with my last letter. This notice expressively denies the right to continue to process any information regarding me or how my account with yourself was conducted and therefore forbids any Credit Reference Agency displaying information regarding me supplied by yourself.

When you state that you have a legal right under the agreement to disclose my information, I draw your attention to the fact that you have, in fact the “lawful right” and this is because I have given my permission. The law states that I have the right to withdraw that permission at any time. So subject to the above served notice this right has now been withdrawn.

2. You further state “The processing is necessary………as we consider that it is in the interests of other creditors to make informed lending decisions”.

Whilst your actions may deemed as noble to other Credit Granters at no point in your terms and conditions does it state that the disclosure of my information would be used for this reason. And therefore I have not agreed to my information being used in such manner. What the agreement does state however, is

“to allow any credit reference agency or debt collection agency to assist in the making of credit decision or the prevention of fraud”

As my debt to you has been settled in full, there is no purpose or right to process or use my information for this reason, as there is no further monies owed to yourself. In addition to this I am not aware of any financial lending by any Credit Reference Agencies or Debt Collection Agencies (or any licences allowing them to do so), which would warrant having access to my information for this purpose.

And

“to allow OU’s or its subsidiaries to make credit status decisions in future dealings with you”

However, as you aware, my credit reference file is viewed by organisations and companies other than those listed above, and you have clearly breached your own terms and conditions, and in turn broken our agreement, by supplying information to them without my express permission.

3. You also state that you may continue to supply my data for a period of six, based on the Crowther Report on Consumer Credit 1971, and you further comment that this was and still is common practice.

I draw your attention to the fact, that I’m sure an organisation such as yourself is fully aware, that “common practice” and “recommendations” based on the Crowther report does not constitute a legal right under English Law. And therefore, you have no legal right to continue to allow this information to be stored with any Credit Reference Agencies.

4. You continue with “It does appear to be the case, at least for the present time, that in addition to current credit commitments the preceding six years of an individuals credit history is taken into account by credit grantors”.

This state is nothing more than hearsay. Some credit granters do, and some rely on 3 years of information, others solely rely on a customers current financial commitments. Such sweeping statements by yourselves can not be held up in a court of law, as any additional reason to continue to process information regarding myself. There is no law, only guidelines, recommending how a credit granter decides to grant credit. If however you feel that I am incorrect, I would be grateful if you would supply me with the relevant documentation to prove your statements worthiness.

5. You state that by informing the Credit Reference Agencies of my account information and the subsequent processing of this for six years does not appear to be in breach of the fifth principal.

This six year rule which you have continually quoted in your letter, has been completely confused with Statuary Orders, such as County Court Judgements and Bankruptcy Orders. I draw your attention to the fact that there is no Contractual or Credit Law permission allowing the six year ruling on disclosure, I point out that the Data Protection Act over rules Contractual Law when it comes to my legal rights.

In summary, your letter continually contradictions each statement and reference area in order to support your continued breach of the Data Protection Act, with the disclosing of my information. I again, remind you that hearsay, recommendations, common practice and statements made by Credit References Agencies does not override or supersede English Law, in particular when those very comments actually infringe my statutory rights under both English Law and the Data Protection Act.

And so on.....will now have to wait and see

[Mariana]

Hi! I am going through something similar with OUBSA - can you let us know what the outcome was in your matter?