People Vs Barclays Bank Data Protection Officer

[Redmountie999]

Can anyone help me.

 

On 04/01/07 I sent Barclays Bank a Data Subject Notice under S10 & S12 of the Data Protection Act 1998. I also sent them a template that I have seen in a number of other threads. The template was Regarding a Formal notice to desist from processing or disclosing personal subject data.

 

They have replied to my letter on 10th January and are basiccaly denying any breaches of the Data Protection Act and refuse point blank to remove my default or any data held about me.

 

This is the letter i received:

 

Dear Mr A N Another

 

I refer to your recent letter, enclosing a Statutory notice persuant to sections 10 and 12 of the Data Protection Act 1998.

 

In order to comply with the first principle of the Data Protection Act 1998, which requires that personal data be processed fairly and lawfully, Barclays notifies it's customers at that it intends to share data with credit reference agencies, and obtains cosent to do so via standard customer terms and conditions.

 

I note that you are looking to rely on the provisions of section 10 of the Act, as it is your belief that Barclays is subjecting you to substantial unwarranted financial damage and personal distress by continuing to process your personal data, and you are requesting that the data is therefore deleted. For the avoidance of doubt, Barclays does not accept this and it is denied that the processing of your personal data was unlawful.

 

Barclays maintains that you have previously consented, by agreeing to be bound by Barclays' terms and conditions associated with your account, to the collection, use, disclosure and retention of your personal data as set out in the terms and conditions, and that continued retention is necessary under the terms of the contract entered into. This includes the capture of consent to share data with credit reference agencies. It is Barclays view that such consent was not limited to the duration of your account and that it cannot be revoked at will. We will therefore continue to process your personal data as described in our terms and conditions, but will not process it for any new purposes.

 

Having studies the provisions of the Act, you may be aware that Barclays must not retain personal data for longer than is necessary for the purposes for which the data is held. When considering suitable retention periods, Barclays considers all it's legal, regulatory, operational and commercial requirements. Barclays cannot simply delete a customer record when a contract with a customer is cancelled or terminated. It is Barclays standard retention policy to retain personal data about formal customers for 6 years after the relationship has ended.

 

Section 12 of the act, which provides rights in relation to automated decision-taking, does not apply in tihs case. The process by which defaults are recorded with the credit reference agencies include human intervention, and is not solely automated. Guidance published by the Information Commisioner's Office (Information Commissioners Office) recommends that a default entry on a customers credit file held with the credit reference agenices be removed 6 years after the default.

 

I must advise you that we are unable to comply with your notice, since we believe that the default data we have provided to the agencies is accurate. Barclays is therefore compliant with the fourth principle of the Act which requires personal data must be accurate and where necessary, kept up to date. I enclose for your information a leaflet produced by the Information Commissioners Office explaining the credit reference process to consumers.

 

To conclude, we have considered your notice carefully and have concluded that section 10 of the Act does not apply in these circumstances. Barclays disputes your assertions that the management of your banking arrangements on a day to day basis, within the criteria of our normal terms and conditions, could constitue a breach of any elements of the Act, or indeed give rise to substantial unwarranted damage or distress and / or any loss and damage as you allege. Your request that Barclays cease to process any elements of personal data is therefore declined.

 

We will not instruct the credit reference agencies to delete your personal data. We lawfully disclosed the default data to them and they are preocessing it in accordance with our agreement with them. They are data controllers in their right and you would be advised to continue your discussions with them seperately.

 

Yours sincerely

 

Rhys Jones

Privacy & Data Protection Team

 

They have not provided me with a copy of the defualt notice or credit agreement as per both of the requests in my letters.

 

Can anyone advise me on how to reply to this letter. Do I have to take this to court.

[Milo19]

I can't help with this one having not researched the problems of defaults. However, the advice I would give is search on the forums, using the search facility, for threads regarding the removal of a default. I strongly suggest researching a response over the weekend. You could also try PM'ing a mod to your thread for some assistance?!

[un1boy]

Can anyone help me.

 

On 04/01/07 I sent Barclays Bank a Data Subject Notice under S10 & S12 of the Data Protection Act 1998. I also sent them a template that I have seen in a number of other threads. The template was Regarding a Formal notice to desist from processing or disclosing personal subject data.

 

They have replied to my letter on 10th January and are basiccaly denying any breaches of the Data Protection Act and refuse point blank to remove my default or any data held about me.

 

This is the letter i received:

 

Dear Mr A N Another

 

I refer to your recent letter, enclosing a Statutory notice persuant to sections 10 and 12 of the Data Protection Act 1998.

 

In order to comply with the first principle of the Data Protection Act 1998, which requires that personal data be processed fairly and lawfully, Barclays notifies it's customers at that it intends to share data with credit reference agencies, and obtains cosent to do so via standard customer terms and conditions.

 

I note that you are looking to rely on the provisions of section 10 of the Act, as it is your belief that Barclays is subjecting you to substantial unwarranted financial damage and personal distress by continuing to process your personal data, and you are requesting that the data is therefore deleted. For the avoidance of doubt, Barclays does not accept this and it is denied that the processing of your personal data was unlawful.

 

Barclays maintains that you have previously consented, by agreeing to be bound by Barclays' terms and conditions associated with your account, to the collection, use, disclosure and retention of your personal data as set out in the terms and conditions, and that continued retention is necessary under the terms of the contract entered into. This includes the capture of consent to share data with credit reference agencies. It is Barclays view that such consent was not limited to the duration of your account and that it cannot be revoked at will. We will therefore continue to process your personal data as described in our terms and conditions, but will not process it for any new purposes.

 

Having studies the provisions of the Act, you may be aware that Barclays must not retain personal data for longer than is necessary for the purposes for which the data is held. When considering suitable retention periods, Barclays considers all it's legal, regulatory, operational and commercial requirements. Barclays cannot simply delete a customer record when a contract with a customer is cancelled or terminated. It is Barclays standard retention policy to retain personal data about formal customers for 6 years after the relationship has ended.

 

Section 12 of the act, which provides rights in relation to automated decision-taking, does not apply in tihs case. The process by which defaults are recorded with the credit reference agencies include human intervention, and is not solely automated. Guidance published by the Information Commisioner's Office (Information Commissioners Office) recommends that a default entry on a customers credit file held with the credit reference agenices be removed 6 years after the default.

 

I must advise you that we are unable to comply with your notice, since we believe that the default data we have provided to the agencies is accurate. Barclays is therefore compliant with the fourth principle of the Act which requires personal data must be accurate and where necessary, kept up to date. I enclose for your information a leaflet produced by the Information Commissioners Office explaining the credit reference process to consumers.

 

To conclude, we have considered your notice carefully and have concluded that section 10 of the Act does not apply in these circumstances. Barclays disputes your assertions that the management of your banking arrangements on a day to day basis, within the criteria of our normal terms and conditions, could constitue a breach of any elements of the Act, or indeed give rise to substantial unwarranted damage or distress and / or any loss and damage as you allege. Your request that Barclays cease to process any elements of personal data is therefore declined.

 

We will not instruct the credit reference agencies to delete your personal data. We lawfully disclosed the default data to them and they are preocessing it in accordance with our agreement with them. They are data controllers in their right and you would be advised to continue your discussions with them seperately.

 

Yours sincerely

 

Rhys Jones

Privacy & Data Protection Team

 

They have not provided me with a copy of the defualt notice or credit agreement as per both of the requests in my letters.

 

Can anyone advise me on how to reply to this letter. Do I have to take this to court.

 

Hi Red,

 

They mention you consented to be bound by their terms - have they got proof if this?

 

Also, ask them to provide evidence that the DEfault Notices were sent because you didn't receive them. The Defualt Notices HAVE To have specific wording on them and if they can't provide evidence then they shouldn't be on your file, because an incorrectly formatted or not issued DN is a criminal offence!

 

I'll take a better look at the letter a bit later when I have more time.

[Redmountie999]

Many thanks un1 for taking a look at this for me. this default has caused me major problems in obtaining credit. I've had to get a mortgage with a higher interest rate and I can't even open a new bank account with a high street lender. I'm desperate to get this default removed. I'veneber been in receipt of ANY default notice from them and the account was closed in 2005 and satisfied in November 2001.

 

Any help with a reply or next step would be greatly appreciated.

 

Red

[chesham]

The fact that a default was, has and (possibly not correctly) issued is nothing to do with the Data Protection Act - defaults and arrears within agreements are regulated under the Consumer Credit Act.

 

You need to make a request to be sent the default papers. If they can't do that, then they have to legally remove it.

 

Here you go:

 

Barclays Bank

1 Bank Square

Bank Town

BK1 7TD

 

Date: xxxxx

 

Dear Sir or Madam

 

Account number - xxxxxxxxxx

Sort Code - xxxxxx

 

After recently obtaining a copy of my credit file from Experian I was concerned to note that your company has placed a "Default" notice against an account in my name.

 

 

Further to this I do not have any recollection of ever receiving such a 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 postal order in payment of the statutory fee, PO Serial Number XXXXXXXX.

 

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

 

Mr & Mrs One

[Redmountie999]

Thing is Ches i've already sentthem that later before Christmas and to date have not had a response. Maybe they didnt get the request. I also enclosed the £1 PO for the statutory fee. To ensure that they were aware of my request I also mentioned this in the letter I've posted at the start of this thread. ???????

[un1boy]

ok Red, you should write to them noww telling them that they have commited an offence and the agreement is now unenforcable and you are not paying anything towads it anymore.

 

You should also mention that because the agreement is unenforcable all of your data they register with the CRA's should be removed too because the agreement doesn't exist.

 

What exactly did they send you?

[Redmountie999]

They sent me the letter i've posted at hte start of the thread. This was in response to a Data Subject Notice and surylbonds large template letter. They have not mentioned my request for this information in their reply and they have also not responded to my first letter sent to them before Christmas. That letter sent was exactly the same letter that Cheesham has kindly posted above.

 

Any ideas?

 

Write to them telling them they've committed an offence then?

 

I've nothing left to pay on this account. All paid up in 2005.

[un1boy]

To be honest they will probably deal with each request seperately.

 

You could send this to them:

 

Dear Sir/Madam

 

Re: − Account Reference XXXXXXXXXXXX

 

I wrote to you on XX/XX/XXXX via recorded deliver no XXXXXXXXXX.

This was received by your office on XX/XX/XXXX. I requested a copy of the executed agreement and relevant documentation pertaining to the above agreement covered by the Consumer Credit Act 1974 amended.

 

 

77 Duty to give information to debtor under fixed-sum credit agreement

 

(1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a) the total sum paid under the agreement by the debtor;

 

(b) the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

 

© the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

 

To date, I have only received a photocopy of the front of the agreement in question together with a photocopy of the dealerships warranty. This does not constitute an executed agreement in accordance with the act.

 

I understand that if you are unable to supply the documents requested after 12 days, then you will be deemed to have defaulted under CCA. If this default remains for a further month, then a criminal offence may have been committed.

 

As you have not provided the information requested in accordance with CCA 1974 amended, this contract is unenforceable without court intervention.

 

I believe that XXXXXXXXX may have committed a criminal offence under the terms of the Consumer Credit Act, and non compliance with the original request is therefore a complete defence to any court claim. I do not acknowlede any debt to xxx for the above account(s) and I am stopping all payments towards it immediately. You must remove all data that you are now unlawfully processing about me for the above account(s) within 7 days, otherwise will begin Legal Action against you.

i would like to take this oppertunity to remind you that any attempt by you or any third parties to recover this debt is illegal. I require all correspondence regarding this in writing.

 

 

Yours faithfully

[un1boy]

But, if you paid it off in 2005 then the CCA request is invalid anyway so you may not be able to pursue it this way.

[chesham]

look at point one in the letter which I posted above.

 

No response? Send letter number 2.

 

Dear Sir or Madam

 

Your Ref : xxxxxxxxxxxxxxxxxxxxxxxxxxx

Account number - xxxxxxxx

Sort Code – xxxxxx

 

I wrote to you on the xxxxx (letter 1) and the xxxxx (letter 2) asking for some relevant information. I enclose copies of the two letters which were both sent via recorded delivery.

 

You so far have not written back to me on the xxxxxxxx, leaving unanswered any of the questions put to you in the original letter.

 

As 28 days has now passed from the date of the letter you are now in breach of your duties under Section 78 of the Consumer Credit Act. If you do not answer my original questions and reply within 7 days I will have no choice but to escalate the matter to the relevant authorities including the Banking Ombudsman, Office of Fair Trading and the Information Commissioner's Office.

 

Yours faithfully,

[un1boy]

Ches, this account has been paid up so the CCA requeest is invalid!

 

They only need to keep the agreement whilst the account still has a positive balance

[un1boy]

(3) Subsection (1) does not apply to—

 

(a) an agreement under which no sum is, or will or may become, payable by the debtor, or

 

(b) a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

[Redmountie999]

Guys i've used the letter that un1 has suggested I write. I'm confused now with S77 & S78. I understand that S77 is the banks duty to provide the information. So is S78 the section which outlines the offence they commit if they don't comply?

 

un1 do you think your letter will work. I don't think they are going to have kept a copy of the agreement and I doubt very much if they will have a copy of the original default. I haven't even seen sight of, or got a copy of this

[un1boy]

Sec 77 applies to fixed sum credit (loans)

Sec 78 is running account credit (credit cards etc)

 

each section has this at the end:

 

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

 

Which applied to them commiting an offence.

 

 

YOu can try the letter and see if they cotton onto it, it's worth a try

[un1boy]

The letter in my posts earlier would be used to inform them that they have commited an offence....I didn't know at that point that you had paied hte whole balance off......I would send it anyway, because as far as I am concerned they should have to provide the agreement whlst the are still processing ur details.

[Redmountie999]

Ok guys this is the letter that i'm about to print off and send on monday. Any issues or is it ok!!!!

 

Dear Mr A N ANOTHER

I refer to your recent letter dated 10th January 2007.

I wrote to Barclays on 27th December 2006 via recorded delivery number xxxxxxxxxx.

Having received no reply to this letter I again wrote to you on 4th January 2007 via recorded delivery. As you are aware this letter was received by your office on 5th January 2007. Enclosed within my letter dated 27th December 2006 was a Postal Order to the value of £1. PO Serial Number xxxxxxxx.

 

In both of my letters I requested the following information.

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 postal order in payment of the statutory fee, PO Serial Number xxxxxxx.

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.

To date, I have not received any statement of account, a signed true certified copy of the original default notice or any deed of assignment if the debt was sold on.

This information is vital for me to review in order to prove that I have indeed previously agreed to be bound by Barclays’ terms and conditions associated with my account. It is also necessary for me to review as I have never received any default notice from you and unless you can provide this evidence then again I must stress that the default notice should not have been placed onto my credit file, because any incorrectly formatted or not issued Default Notice is a criminal offence.

I would respectfully draw your attention to the provisions of the following legislative Act.

Section 77 Duty to give information to debtor under fixed-sum credit agreement

 

(1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the total sum paid under the agreement by the debtor;

 

(b) the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

 

© the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

 

Having studied the Act, I understand that if you are unable to supply the documents requested after 12 days, then you will be deemed to have defaulted under CCA. If this default remains for a further month, then a criminal offence may have been committed.

As you have repeatedly not provided the information requested in accordance with CCA 1974 amended, this contract and it’s terms and conditions is unenforceable without court intervention.

I believe that Barclays may have committed a criminal offence under the terms of the Consumer Credit Act, and non compliance with the original request is therefore a complete defence to any court claim.

You must remove all data that you are now unlawfully processing about me for the above account within 7 days, otherwise I will begin Legal Action against you.

 

I again enclose a £1 postal order in payment of the statutory fee, PO Serial Number xxxxxxx.

I have taken the liberty of enclosing copies of both my letters as evidence of my two previous requests. This letter is now my third and final request for this information. I hereby give you notice that I intend to use these letters as evidence in my subsequent court proceedings against Barclays Bank. They will form part of the disclosure of my case to the judge in sitting.

I require all correspondence regarding this matter in writing in order that they may be used for disclosure purposes in the courts.

I look forward to hearing your final response prior to the submission of my notice of claim to the County Courts.

Yours sincerely

[un1boy]

Ok guys this is the letter that i'm about to print off and send on monday. Any issues or is it ok!!!!

 

Dear Mr A N ANOTHER

I refer to your recent letter dated 10th January 2007.

 

I wrote to Barclays on 27th December 2006 via recorded delivery number xxxxxxxxxx.

 

Having received no reply to this letter I again wrote to you on 4th January 2007 via recorded delivery. As you are aware this letter was received by your office on 5th January 2007. Enclosed within my letter dated 27th December 2006 was a Postal Order to the value of £1. PO Serial Number xxxxxxxx.

 

 

[In both of my letters I requested the following information.

 

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 postal order in payment of the statutory fee, PO Serial Number xxxxxxx.

 

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.]

(Personally I would delete the above in the brackets - you've already asked for this.)

 

 

To date, I have not received any statement of account, a signed true certified copy of the original default notice or any deed of assignment if the debt was sold on.

I do not acknowledge any debt to Barclays

 

I would respectfully draw your attention to the provisions of the following from the Consumer Credit Act.

 

Section 77 Duty to give information to debtor under fixed-sum credit agreement

 

(1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a) the total sum paid under the agreement by the debtor;

 

(b) the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

 

© the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

 

Having studied the Act, I understand that if you are unable to supply the documents requested after 12 days, then you will be deemed to have defaulted under CCA. If this default remains for a further month, then a criminal offence may have been committed.

 

As you have repeatedly not provided the information requested in accordance with CCA 1974 as amended, this contract and it’s terms and conditions is unenforceable without court intervention.

 

I believe that Barclays may have committed a criminal offence under the terms of the Consumer Credit Act, and non compliance with the original request is therefore a complete defence to any court claim.

 

You must remove all data that you are now unlawfully processing about me for the above account within 7 days, otherwise I will begin Legal Action against you.

 

[I have taken the liberty of enclosing copies of both my letters as evidence of my two previous requests. This letter is now my third and final request for this information. I hereby give you notice that I intend to use these letters as evidence in my subsequent court proceedings against Barclays Bank. They will form part of the disclosure of my case to the judge in sitting.] I wouldn't do this, but it's up to you.

 

I require all correspondence regarding this matter in writing [in order that they may be used for disclosure purposes in the courts. ] Delete this, you are entitled to request all corres in writing anyway.

 

If I have not received the relevant documentation within the statutory period i will begin Legal Action against you without further notice. Please be advised the timescale started from my original request which was xxx

 

Yours sincerely

 

Try that!

[Redmountie999]

Thanks very much Un1. I've changed the letter with your ammendments.

 

Do you not think it's a good idea to enclose copies of my 2 previous letters???

 

Do you think there any possibility of them now removing the default. They are so stubborn. It's not as if the account is unsettled and I owe them anything. I settled nearly 6 years ago. Why can't they just remove the default markers from my account. They state it's not as easy as that. Is it????

 

If they can't provide the agreement and original default notice do I have enough to take them to court for this to be removed. Remember I owe nothing to them and as far as both parties are concerned the account in now well and truly closed and settled.

[un1boy]

You can enclose your prvious letters, I wouldn't - make them work to get your others out of archive!!! They wouldn't enclose them, up to you thouhg - it couldn't hurt!!

 

If they don't cotton on to the fact that your request is invalid theen yes they will remove the defualt. Let's see what they say in response to this letter first. If this doesn't work then we will ask them tp substanciate the default entry by providing evidence they sent you a correcrtly formatted deafult notice, if they can't then they ahve also commited an offence. So, let's wait and see!!

 

It is really easy for them to remove your data. What you have to remember is that if u have default on ur Credit File it workds in their favour because they can charge you hihgher interest rates and thus make more money out of you. You basically get the same treatment as if you've had a CCJ- which are FAR more serious and only endorsed/iossued by a Judge.....so, you can see how they are unfair.

 

We will sort this, just be patient!!

[Redmountie999]

un1boy - r u on an instant messegner? Would like to have a chat about your victories with Equifax & Experian?

[un1boy]

un1boy - r u on an instant messegner? Would like to have a chat about your victories with Equifax & Experian?

 

I will PM you my email address.

 

I haven;t had any victories per say yet. I have had both T-MObile and NTL remove default markers but keep my data on my files. I am just at the Alloction Questionnaire part of my claim against T-Mobile. If this works then I ma going for NTL.

 

You have to realise that I am no expert at all over any of this - I can only advise yo about my experiences and those of others I have read about.

 

I'll PM you now.

[tamadus]

ok tam is here

 

lets get this matter in perspective before anything else.

 

1. The account is settled in full and is now closed, therefore the CCA is no longer really applicable. They do not have to supply a copy of a credit agreement for a closed account.

 

2. As Red thought at first this is a DPA matter and he rightly issued a sec 10 Subject Access Notice on them which they are refusing to follow. They are doing this on the basis that they continue processing data fro 6 years after an account is closed. THIS is incorrect. The only thing that is legally obliged remain on a credit reference file for 6 years is something that has been ordered to be placed on it by a court. This would be a CCJ, IVA or bankruptcy order. NOTHING else and nobody else has the legal right to impose a 6 year time.

 

3. I forget now where it is stated but processing data to a credit reference file should cease after a 'reasonable period of time', 3 months is reasonable when the relationship has finished. I think it's one of the OFT documents.

 

Red I would write to them emphasising that 6 years is nothing but an industry standard, it has no lawful basis and as such your SAN stands especially considering they did not send the appropriate notices first, the default was unlawfully recorded. Unless they confirm that they have stopped processing your data and have removed the default that is causing you extra expense and worry then you will lodge a complaint with the ICO. In fact I would lodge a complaint anyway.

 

Also have you done a Subject access request to find out if the account had any charges on it and reclaimed them yet ?

 

I would also send a SAN to the credit reference agency involved as well, again stipulating this default was unlawfully recorded. Again tell them their self imposed 6 year rule has no basis in law and that you are making an official complaint with the ICO.

 

Hope this helps, sorry I took so long but had a major computer crash since Friday.

[Redmountie999]

Thanks for the advice Tam.

 

I sent both Experian and Equifax a SAN on 15/01/2007. Either have yet to respond. In relation to Barclays Data Controllers last letter I sent them the following.

 

 

Privacy & Data Protection

Radbroke Hall

Knutsford

Cheshire

WA16 9EU

 

Account Number: XXXX XXXX

Sort Code: XX-XX-XX

 

Dear Mr A N Another

 

 

I refer to your recent letter dated 10th January 2007.

 

I wrote to Barclays on 27th December 2006 via recorded delivery number XXXXXX XXXX. Having received no reply to this letter I again wrote to you on 4th January 2007 via recorded delivery. As you are aware this letter was received by your office on 5th January 2007. Enclosed within my letter dated 27th December 2006 was a Postal Order to the value of £1. PO Serial Number XXXXXXXXX.

 

 

To date, I have not received any statement of account, a signed true certified copy of the original default notice or any deed of assignment if the debt was sold on.

 

This information is vital for me to review in order to prove that I have indeed previously agreed to be bound by Barclays’ terms and conditions associated with my account. It is also necessary for me to review as I have never received any default notice from you and unless you can provide this evidence then again I must stress that the default notice should not have been placed onto my credit file, because any incorrectly formatted or not issued Default Notice is a criminal offence.

 

 

I would respectfully draw your attention to the provisions of the following from the Consumer Credit Act.

 

 

Section 77 Duty to give information to debtor under fixed-sum credit agreement

 

(1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

 

(a) the total sum paid under the agreement by the debtor;

 

(b) the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

 

© the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

 

Having studied the Act, I understand that if you are unable to supply the documents requested after 12 days, then you will be deemed to have defaulted under CCA. If this default remains for a further month, then a criminal offence may have been committed.

 

 

As you have repeatedly not provided the information requested in accordance with CCA 1974 as amended, this contract and it’s terms and conditions is unenforceable without court intervention.

 

 

I believe that Barclays may have committed a criminal offence under the terms of the Consumer Credit Act, and non compliance with the original request is therefore a complete defence to any court claim.

You must remove all data that you are now unlawfully processing about me for the above account within 7 days, otherwise I will begin Legal Action against you.

 

I again enclose a £1 postal order in payment of the statutory fee, PO Serial Number XXXXXXXXX.

 

I have taken the liberty of enclosing copies of both my letters as evidence of my two previous requests. This letter is now my third and final request for this information.

 

I hereby give you notice that I intend to use these letters as evidence in my subsequent court proceedings against Barclays Bank. They will form part of the disclosure of my case to the judge in sitting.

 

I require all correspondence regarding this matter in writing.

 

 

If I have not received the relevant documentation within the statutory period I will begin Legal Action against you without further notice.

 

Please be advised the timescale started from my original request which was 27th December 2006.

 

 

I look forward to hearing your final response prior to the submission of my notice of claim to the County Courts.

 

Yours sincerely

[Redmountie999]

In line with several other suggestions I also sent the OFT the following letter which they received today:-

 

The Office of the Data Protection Commissioner

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

 

Dear Sir / Madam

 

I wish to complain about the current practice that exists within the credit industry that appears to allow my data to be processed by both credit suppliers and credit reference agencies without my permission or that such processing continues after my permission has expired.

 

I experienced a period of falling behind with my payments to a variety of credit suppliers a few years ago. Some of these companies recorded only late payment markers and one recorded a default against my name. In the case of the default I have paid back the money owed and the account is marked as either satisfied or settled.

 

I have approached Barclays who have recorded the default against me and the credit reference agencies and each has, in it’s own slightly different way, said “It is industry practice for defaults to remain on my file for six years”

 

It is my position that, as defaults are not ‘public information’ then there is absolutely no document or legislation that exists that allows this data to be held on my file after the contract in which I enter into with a credit supplier has ended. In particular I wish to complain about Barclays Bank. This company has continued to process default markers on my credit file despite the contract that used to exist between us having ended in late 2001. With the ending of the contract – so does my permission for them to process my data. I will copy my correspondence to Barclays to you, but to summarise, it is Barclays position that the Office of the Information Commissioner is both aware and in agreement with this practice.

 

“The Treasury Select Committee and the British Bankers Association are fully aware of, and are in agreement to data being recorded with the CRA in this way”

I wish to challenge this understanding. Without a specific act of parliament allowing my data to continue to be processed, in particular, in a way that causes me harm or risks defamation of my character, once the contract that allowed such processing has ended, is wrong and should not be allowed by the Information Commissioners Office.

 

I am aware that the Consumer Compliance Executive from Experian has now finally accepted this and I quote from an e-mail and letter from him on the 6th September. “I can also confirm that as far as we are aware there is no specific piece of documentation or legislation that provides us with the right to retain your information for six years from the date an account is settled. It was agreed throughout the credit industry that six years is considered a reasonable amount of time for account data to be retained from the point that an account is settled in accordance with the 5th Data Protection Principle. This information would only be retained with your consent as per the terms and conditions of the particular account you held.”

 

I am happy to share all my correspondence with you as I try to seek an acknowledgment that this current practice is not lawful and that the current advice from the Information Commissioners Office regarding the retention of non public data for six years is wrong.

 

Please find enclosed a letter from the Consumer Compliance Director at Experian and also all my correspondence to Barclays Bank to date..

 

Should you have any queries in relation to any of the content of this letter then please do not hesitate to contact me at your earliest opportunity.

 

 

I look forward to hearing from you in due course.