People Vs Barclays Bank Data Protection Officer

[dayglo]

bloody court clerks! dillusions of grandeur.

 

anyway, simply refer them to section 15 of the Data Protection Act which confers jurisdiction upon the county courts and remind them that you are exercising your rights under section 10.4.

 

If you judge does come back and suggest arbitration then so be it.

 

you are a long way from needing to preapre your arguments for the judge but you should understand the basic principles now.

 

if you've read and uderstood section 10 you'll be fine.

 

issue the N1 - nothing will happen until you've done that.

[Redmountie999]

This is the latest letter I had in reply to my quest to get Barclays to remove their unlawful default marker from my Credit File.

 

Dear Mr A N Another

 

The default has been registered at the Credit Reference Agencies is in respect of your Unauthorised Overdraft and as such no Default Notice has been issued.

 

May we explain that Default Notices are only issued in respect of fixed term credit agreements where a breach of the terms set out in the agreement has occurred, section 87 & 88 of Consumer Credit Act relate solely to the Default Notice issued in respect of such agreements.

 

As stated in our previous letter overdrafts regardless of their nature, be it authorised or unauthorised, are repayable upon demand and as such the bank issued you with the Termination Notice in accordance with section 98 of the Consumer Credit Act 1974.

 

May we explain that the period of information retained by the Credit Reference Agencies is not set by the bank but that of the Credit Reference Agencies and therefore you should refer this question to them.

 

Default information registered at the Credit Reference Agencies remains on file for six years from the date of initial registration not from the date when the sum showing has been satisfied.

 

The information that we have provided to the Credit Reference Agencies is to the bank’s knowledge accurate and correct if you believe any part of the information registered is not correct and if you believe any part of the information registered is not correct then we will require that you provide a copy of your credit file, highlighting what part of the information is not correct.

 

When applying for this account you signed a customer agreement and authorisation form in which it states “(i) you are applying to us, Barclays Bank Plc, for banking services, (ii) you are confirming that the details you have supplied in the application are true and correct, (iii) authorising the bank (a) make credit reference and other enquiries in connection with the application in accordance with normal procedures and (b) to disclose full account information to licensed credit reference agencies”.

 

We therefore feel that the bank has acted correctly in the termination of your account and that the information supplied to the Credit Reference Agencies is correct.

 

Prior to the issue of any legal action we advise that you seek legal advice from a fully qualified solicitor as action will be strongly opposed and defended by the bank.

 

May we also explain that neither our officer nor that of the Data Protection Team will accept service of any court proceedings and that this should be directed to the banks legal team whose address is: Level 29, 1 Churchill Place, London, E14 5HP.

[un1boy]

Section 98?

98 Duty to give notice of termination (non-default cases)

(1) The creditor or owner is not entitled to terminate a regulated agreement except by or after giving the debtor or hirer not less than seven days’ notice of the termination.

(2) Subsection (1) applies only where—

(a) a period for the duration of the agreement is specified in the agreement, and

(b) that period has not ended when the creditor or owner does an act mentioned in subsection (1),

but so applies notwithstanding that, under the agreement, any party is entitled to terminate it before the end of the period so specified.

(3) A notice under subsection (1) is ineffective if not in the prescribed form.

(4) Subsection (1) does not prevent a creditor from treating the right to draw on any credit as restricted or deferred and taking such steps as may be necessary to make the restriction or deferment effective.

(5) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

(6) Subsection (1) does not apply to the termination of a regulated agreement by reason of any breach by the debtor or hirer of the agreement.

 

What does (3) mean? What describes a "prescribed form?" If defaults aren't relevant?

[un1boy]

Also, surely if they can't provide a copy of your original application form then how can they enforce it?

 

And lastly, Example 6 of the CCA says this:

 

EXAMPLE 6

 

 

Facts. The G Bank grants H (an individual) an unlimited overdraft, with an increased rate of interest on so much of any debit balance as exceeds £2,000.

 

Analysis. Although the overdraft purports to be unlimited, the stipulation for increased interest above £2,000 brings the agreement within section 10(3)(b)(ii) and it is a consumer credit agreement.

 

Now, in my opinion (and purely my opinion) this means that current account swith overdrafts should be regulated by the CCA - any ideas how we can check whether this should be the case?

[un1boy]

section 10(3)(b)(ii) says:

 

(3) For the purposes of section 8(2), running-account credit shall be taken not to exceed the amount specified in that subsection (“the specified amount”) if—

 

(a) the credit limit does not exceed the specified amount; or

 

(b) whether or not there is a credit limit, and if there is, notwithstanding that it exceeds the specified amount,—

 

(i) the debtor is not enabled to draw at any one time an amount which, so far as (having regard to section 9(4)) it represents credit, exceeds the specified amount, or

 

(ii) the agreement provides that, if the debit balance rises above a given amount (not exceeding the specified amount), the rate of the total charge for credit increases or any other condition favouring the creditor or his associate comes into operation, or

 

(iii) at the time the agreement is made it is probable, having regard to the terms of the agreement and any other relevant considerations, that the debit balance will not at any time rise above the specified amount.

 

Comments please

[dayglo]

ok - i'll post

 

(sorry for some reason the rest of this post has disapeared!)

 

i meant to say - I'll post more later on as i'm a bit tied up with work but all this CCA stuff is a complete red herring.

[un1boy]

ok - i'll post

 

Cool....

[dayglo]

hello Red.

 

I got your pm but I'm not sure what else I can add. Use the PoC previously posted in this thread and that's it for now.

 

The consumer credit act is completely irrelevant in this case.

 

We'll pick the bones out of their defence when it arrives, if it gets that far. As for now, just fill in your N1, handover £150 at your court and sit back and wait.

[un1boy]

Surely though whether current accounts aren't covered under the CCA or not, if they can't provide the agreement then how can they prove it "exists?"

[dayglo]

oh come on........... we've done this before dozens of times.........

 

paperwork is not the be all and end all in showing if a debtexists or not.

[Redmountie999]

Ok day. i'll have to wait until i'm paid to submit the poc for this one. I've read sec 10 of the DPA as previously discussed but all the other sections that the bank keep throwing in are somewhat confusing.

 

As far as i'm concerned, until recently I did not know that the default was placed against my credit file. i have never received a default notice in ANY prescribed from from them and the fact that it is there has and is still continuing to cause me and my family unwarranted alarm and distress. I am clearly not a debt dodger as the debt to Barclays was well and truly paid up in Feb 2006. Barclays continue to provide this regular default marker update on my credit file as they state that I would have agreed to this when i signed my account agreement. When pushed further on this subject they also state that it is their standard policy to retain this information for a period of 6 years and that it is ' standard industry practice '. As long as I have a case to argue here I am happy to proceed. I am NOT a legal expert and have little or no experience at this type of litigation. Would any of you be willing to further assist me if this case goes to court by being the " claimant's friend "?

[dayglo]

I've read sec 10 of the Data Protection Act as previously discussed but all the other sections that the bank keep throwing in are somewhat confusing.

 

what other sections are being thrown at you? remember - you have issued a notice under section 10. They have given poor reasons for not complying with it and you are seeking an order from the court under your rights as described in S.10(4) to require them to comply.

 

As far as i'm concerned, until recently I did not know that the default was placed against my credit file. i have never received a default notice in ANY prescribed form from them

 

This is irrelevant - please let the fact that you have not received a copy go. It's a distraction

 

and the fact that it is there has and is still continuing to cause me and my family unwarranted alarm and distress.

 

This is what you will have to demonstrate in the future

 

I am clearly not a debt dodger as the debt to Barclays was well and truly paid up in Feb 2006

 

good.

 

Barclays continue to provide this regular default marker update on my credit file as they state that I would have agreed to this when i signed my account agreement. When pushed further on this subject they also state that it is their standard policy to retain this information for a period of 6 years and that it is ' standard industry practice '.

 

no suprise there then. They are required to keep certain bits and pieces regarding your a/c for 6 years. staff often confuse this with their perceived right to send this data to CRAs for six years.

 

As long as I have a case to argue here I am happy to proceed. I am NOT a legal expert and have little or no experience at this type of litigation. Would any of you be willing to further assist me if this case goes to court by being the " claimant's friend "?

 

neither did I when I started. All the info you need is available either in the DPA or in my thread. it's just a case of reading and reading and eventually a light will go on in your head.

 

Personally, I doubt that this will actually go to court. But I'm afraid I can't commit to attending with you in any capacity. Sorry.

[spitting kitten]

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.

 

I sent Barclays a letter stating that I do not give them permission to give my details to a 3rd party and to remove the default. I had exactly the same response letter. Good luck and keep us all posted

[Redmountie999]

Ok guys,

 

This is my latest position involving Barclays and my quest for my default to be removed.

 

I have once again written to Barclays to ask them to remove the default marker. This time I went into lengthy detail about how it has and still continues to cause me unwarranted hardship and distress. I have referenced this to my S.10 statutory notice. They have failed to reply to me within 21 days on this request. I have been waiting almost 12 weeks for a reply. Although I have them now, Barclays they initially failed to comply with my SAR within the 40 day time period. They have still only provided me with copy statements despite asking for all documents, notes on account etc.

 

I've written to the Financial Ombudsman Service and they have confirmed that Barclays are in breach of the banking code and should have dealt with the complaint by now. The FOS say in a recent letter that they have written to Barclays regarding the matter. However in a recent covnersation with Barclays they are claiming that they have not received anything from the FOS and have no record of any communication with them.

 

Can anyone suggest what to do next?

[able]

court?

[Redmountie999]

Particulars of Claim (attached)(to follow)

 

1. The Claimant held a current account 4041 8242 with the defendant from 1995 to 2002 conducted on their standard terms and conditions.

 

2. During the period in which the Account has been operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

3. The Claimant contends that

 

 

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

 

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

 

4. The Defendant has failed to comply with the Claimants Data Protection Act Subject Access Request within the 40 day time period afforded under the Act.

 

5. Furthermore, the disclosure of personal data is incomplete in that at least the following documents are missing.

• The Defendant has failed to provide a complete list of transactions and charges sincethe account was opened.
  
• The Defendant has failed ot provide any notes or documents relating to any legal actions between them and the Claimant.
  
• The Defendant has failed to provide any notes or documents relating to instances of manual intervention.

6. The Defendant, as a data controller, is processing the Claimant's personal data without consent.

 

7. The Claimant sent a notice under s.10 and s.102 of the Data Protection Act 1998 on 27th December 2006, requesting the Defendant to cease processing his data, on the grounds that it was causing unwarranted substantial damage and distress.

 

8. The damage and distress relate to the Claimant having to pay higher interest rates on credit agreements and the inability to obtain new credit arrangements or to obtain a mortgage.

 

9. The Defendant continues to process the Claimant's personal data through their data processors of Equifax, Experian, Call Credit and other Credit Reference Agencies employed by the Defendant.

 

The Defendant failed to comply with the Subject Access Request within the 40 day statutory time period. The 40 day time period for this request expried on 3rd March 2007.

 

10. In accordance with his rights under Section 10(4) the Claimant requests from the court, an order be made to the Defendant thatthey comply with the Notice issued under s.10(1) as the notice appears reasonable and the Defendant has failed to give justified reasons for non-compliance within the 21 day period.

 

Accordingly the Claimant claims:

 

a) the return of the amounts debited in respect of charges in the sum of £204.06 and any interest charged thereon;

 

b) Court costs;

 

c) Interest pursuant to section 69 County Courts Act as set out on the attached list of charges or at such rate and for such periods as the court deems just.

 

d) Alternatively, if the charges are a fee for a service, then they must be reasonable under s.15 of the Supply of Goods and Services Act (1982)

 

e) Under the terms of s.10 and s.15 of the Data Protection Act 1998, Schedule 1, Part 1 ("The Principles") in relation to the manner in which the Claimants data is collated, stored and processed. Of particualr note, are Principles 3,4 and 5, the Claimant requests that the court inspects that information, and wehre it finds that the Defendant's opinion is unfounded, that it orders such information to be removed from his credit files.

 

f) The Claimant requests that the court order the Defendant to remove the default marker from the Claimants credit files under S.14(1) of the Data Protection Act 1998.

 

g) Compensation at the courts discretion under s.13 of the Data Protection Act 1998.

[Redmountie999]

Tam, Day, Un1

 

I've finally plucked up the courage to take the big boys on and yesterday I submitted my poc at Cardiff County Court. This is the N1 I submitted. In hindsight I wish I had posted it on here and got you guys to check it over first. But I was in the court at the time and just did it before I changed my mind again. Anyway, your views please.

[TANZARELLI]

Hi Redmountie,

 

What did you need help with? I may be able to help and will keep an eye on the thread from now to see how things are going.

 

Tanz

[un1boy]

Tam, Day, Un1

 

I've finally plucked up the courage to take the big boys on and yesterday I submitted my poc at Cardiff County Court. This is the N1 I submitted. In hindsight I wish I had posted it on here and got you guys to check it over first. But I was in the court at the time and just did it before I changed my mind again. Anyway, your views please.

 

Well mate, well done and good luck - keep us posted!

[dayglo]

Tam, Day, Un1

 

I've finally plucked up the courage to take the big boys on and yesterday I submitted my poc at Cardiff County Court. This is the N1 I submitted. In hindsight I wish I had posted it on here and got you guys to check it over first. But I was in the court at the time and just did it before I changed my mind again. Anyway, your views please.

 

If you have read the last few posts on my 'life back' thread you'll be aware of two things

 

1) I lost - I convinced the judge that I had suffered substantial damages (but not distress) but I failed to convince the judge that these were unwarranted and as such my case was dismissed.

 

2) It was only a raised eyebrow from the judge and a goodwill gesture from the Vodafone legal executive that spared me from having to pay their legal costs, it was too complicated to be heard as small claims track it could have cost me a fortune.

 

I'm not saying whether you should or should not continue, that is a call for you to make but you should understand that I won't be around for help I'm afraid.

 

I regret that I'm not able to offer help by PM either.

 

Good luck with whatever you decide to do.

 

DG.

[TANZARELLI]

I am not sure about going for damages myself, CI yes, stat 8% if not CI yes. The prob with damages is proving them and as dayglo says the distress bit may even be harder. Others may disagree.

 

I think the rest is ok though. My poc was just an adaption of the one on here for my capital one claim with the addition of info re default removal, this worked for me.

 

I also included from the outset something along the lines of this in the Prelim and LBA letters:

 

Additionally you have entered a default notice against my credit record. This default occurred merely in respect of unlawful charges levied by you or was the result of impecuniosity caused directly by the taking by you of penalty charges which you had applied unlawfully to my account. I require that you remove this default entry from my credit file with all the credit reference agencies as also remove any negative information that is also on my credit file in relation to this default caused by the levying of the said penalty charges. Please note that a mere amendment of correction will not suffice, I require it to be removed from my credit file in its entirity.

[chesham]

The N1 looks compliant and ok - with regards to damages, the courts are wary of awarding them in case of opening the floodgates - what constitutes damages? You need to have suffered some form of substantial loss before you can be considered to have been sufficiently 'damaged' - I would hasten to say this may spread to interest rates, and because no one "has" to take out credit, then it may be concluded that entering into the contract for credit was optional and was not within the probably causation of events - i.e. by entering a default, they did not intend you harm.

 

However, I would go with it - you've nothing to lose at the end of the day!!

[Redmountie999]

Could I just recap with the rest of the post the following:-

 

What is the penalty for non-compiance of my S.7 DPA S.A.R? They have sent part statements but not all. They are also missing anything else relating to the account. (i.e. manual intervention, account notes, etc)

 

Also what is the penatly for them failing to comply with my s.10 & s.12 Data Subject Notice within the 21 day time period?

 

Red

[Redmountie999]

Barclays have still not entered a defence to my monetary claim and default removal. They have until 16th May 2007. I'm surprised by this as they stated in one of their standard bog off letters that any legal action would be strongly opposed and defended by the bank.

 

If they dont acknowledge or enter a defence I will obviously be requesting that the court make judgement by default. I'm sure the judge will make a positive order in respect of the monetary claim but will the judge order the default to be removed.

 

Any views folks???

[un1boy]

Barclays have still not entered a defence to my monetary claim and default removal. They have until 16th May 2007. I'm surprised by this as they stated in one of their standard bog off letters that any legal action would be strongly opposed and defended by the bank.

 

If they dont acknowledge or enter a defence I will obviously be requesting that the court make judgement by default. I'm sure the judge will make a positive order in respect of the monetary claim but will the judge order the default to be removed.

 

Any views folks???

 

Hiya

 

I don't mean to rain on your parade mate, but don't get too excited - they will enter the defence on the 16th.

 

If they don't then the courts give them an extra 7 days anyway, regardless.

 

The Judgement request may not necessarily be granted.