Defaults Registered 4 & 5 years following account deliquency

[DBY]

Hi all,

Hope you are all well.

Having a bit of an issue with a certain finance company.
I wont bore you with a long story, instead i'll get straight to the heart of the issue.

I had two accounts with a certain finance company.
I have not made any payments or acknowledged any debt with them since my last payments in 2005.
In 2009 and 2010 they decided to log defaults on my CRF.
I have queried this stating the ICO Data Protection Guidance Document on filing defaults stating that they have a max of 6 months from deliquency (ie non payment) in order to register defaults.
They have come back statiing that section 11 of the guidance notes stipulating timescales (section 11) is irrelevant and that they have complied with section 10 on the basis that the defaults were logged when they sold the debts on, inspite of the fact this was 4+5 years later.
This means that even though the alleged debts are SB'd the defaults will remain on my files until 2015/2016 respectively.
This is in my opinion designed to be malicious and vexatious as this is now preventing me from carrying on with my life after an horrendous previous 10 years of personal health and other problems.
I have of course logged a complaint with the ICO and sent an SAR to the company involved to find out what other info they have, since they sent the DN to a previous address.

What I would like to know is has anyone had a similiar experience
as me and have been successful in getting the OC to remove the DN from their files? Of course its a pointless and fruitless excercise complaining to the CRA as they just report the data.

any help here would be greatly appreciated.

[Never-In-Doubt]

Re: Defaults Registered 4 & 5 years following account deliquency

What I would like to know is has anyone had a similiar experience
as me and have been successful in getting the OC to remove the DN from their files? Of course its a pointless and fruitless excercise complaining to the CRA as they just report the data.

any help here would be greatly appreciated.

Hiya

Unlucky, this is a nightmare but as you say, the ICO (or DPA) rules seem to allow the banks to take the piss and cripple us years after the event. You can go to the FOS and also consider a legal threat against the CRA's as processors, they must ensure the data is accurate which clearly you're disputing is not the case.

Point 10 is as follows

10 Indicators of a default

The following indicate that a breakdown has occurred in most types of product (excluding those in the section on Exceptions at paragraphs 12-15). This list is not necessarily exhaustive.
The account has been referred to a collection agency or in-house debt collection department.
The account has been referred for legal action.
The account has been included in a bankruptcy, IVA, or similar.
The asset financed has been repossessed or instructions for repossession have been given.
The lender takes or has taken steps to cut off the service provided (or would do so if they were not prevented on social rather than commercial grounds or by other regulations, codes of practice or statute).
The customer has not made satisfactory proposals in response to a demand for repayment.
The customer has given a clear indication, for example, by handing back an asset, that they do not intend to meet their contractual obligations.
The lender has evidence that an account has been opened or used for fraudulent purposes by the applicant.

The ICO is also wrong in it's assumption (in my opinion). s.16 would be more appropriate.

16 Flexibility

We recognise there will be some circumstances where a lender may feel justified in filing a default, or withholding a report, outside the parameters set out in paragraphs 10 and 11 and, in particular, where:
the lender has direct evidence that a customer is unable or unwilling to make further payments;
the customer has continued to use facilities which have been withdrawn by the lender; or
the customer has a hire purchase or conditional sale agreement and has sold on the goods without settling the account; or
the lender is aware of the reason for non-payment and knows that payments will start again or the arrears will be paid.
These decisions should be made on a case-by-case basis. When these decisions are made, lenders should consider whether, if a default record is filed or withheld, it would be likely to help or mislead another lender in their credit decision about the individual concerned. A general company policy to file defaults as a matter of routine outside the above parameters would not be acceptable unless the lenders’ products all justify exceptions on the grounds referred to in paragraph 13.

Read whole guide here ---> ICO - Technical Guidance Note - Filing defaults with credit reference agencies - allaboutFORUMS

[DBY]

Re: Defaults Registered 4 & 5 years following account deliquency

Thanks,

My argument with the OC is that they cannot simply pick and choose what sections of the guidance notes they wish to adhere to and none actually supersede another, which is their argument stating that section 10 supersedes section 11. It does not.

[Never-In-Doubt]

Re: Defaults Registered 4 & 5 years following account deliquency

Thanks,

My argument with the OC is that they cannot simply pick and choose what sections of the guidance notes they wish to adhere to and none actually supersede another, which is their argument stating that section 10 supersedes section 11. It does not.

Hi

I agree, the ICO are pussies at the best of times and this just goes to show you. They set rules with so many contradictory terms meaning the ICO and their dipshit staff have no clue, so how can they expect to enforce them against banks?

Unfortunately it doesn't stand good, if the ICO have ruled against you then either dig up their terms and break the DPA (Euro) to find a flaw or consider FOS intervention.

Sorry we can't really be of more help but it's hard when you're fighting corruption from the core.

[BBoo]

Re: Defaults Registered 4 & 5 years following account deliquency

Unfortunately this seems to be a common occurence. They seem to take the view why screw somebody for 6 years when you can screw them for 12?

I agree it is absolutely wrong and I believe it is usually intentional and malicious. It is possible to get the defaults removed, but as is nearly always the case with default removal, it is a long, hard slog.

Good luck!


(Sorry NID - post crossed!!!)

[Riz]

Re: Defaults Registered 4 & 5 years following account deliquency

if the ICO have ruled against you

I have a feeling DBY didn't mean that.

I think they meant that it was the creditor replying who were saying that s10 does not apply?

And that only subsequently have they logged a complaint with the ICO, which presumably hasn't had an adjudication yet?

That is they way it reads to me anyway. Hopefully DBY can clarify.

[Never-In-Doubt]

Re: Defaults Registered 4 & 5 years following account deliquency

I have a feeling DBY didn't mean that.

I think they meant that it was the creditor replying who were saying that s10 does not apply?

And that only subsequently have they logged a complaint with the ICO, which presumably hasn't had an adjudication yet?

That is they way it reads to me anyway. Hopefully DBY can clarify.

If this is correct then great! The lender/ICO is still wrong as s.10/s.11 cannot supersede one another as they're both part of the same paper.

Lets see eh

[DBY]

Re: Defaults Registered 4 & 5 years following account deliquency

Unfortunately this seems to be a common occurence. They seem to take the view why screw somebody for 6 years when you can screw them for 12?

I agree it is absolutely wrong and I believe it is usually intentional and malicious. It is possible to get the defaults removed, but as is nearly always the case with default removal, it is a long, hard slog.

Good luck!


(Sorry NID - post crossed!!!)

Well I spoke again with the ICO with further updates from this 'so called' finance organisation - im awaiting a response from their CEO which i'll need to forward on. Anyways, the lady was very helpful and guided me to the ICO's 'Credit Explained' leaflet. Its quite useful, also states how long data should be processed.

See attached.

[Riz]

Re: Defaults Registered 4 & 5 years following account deliquency

So have the ICO made any decision on your complaint yet?

See the previous posts before yours above.

Just want to clarify what stage you have reached, and who is telling you wrongly that s11 over-rides s10?

[DBY]

Re: Defaults Registered 4 & 5 years following account deliquency

Hi all,

To clarify the OC has stated that section 10 supersedes section 11, in my case. ICO are disagreeing from my conversations with them on the phone, however Im still awaiting their 'official' response to my complaint. Anyways, thought I'd share with you one of the emails sent to me by this specific finance company where they also seem to think they can register more than 1 default!!

'

I have again reviewed the details of this matter in full, and so I would like to confirm the following in final response:

You refer to Section 11 of the ICO's guideliness regarding the registration of a default, and maintain that we have acted incorrectly as we have recorded defaults to your credit file in relation to agreements XXXXXXXX and XXXXXXXX more than six months after these respective credit agreements entered arrears. However, you will note that Section 11 states: "The following are in line with the practices currently adopted by most lenders"; and "Accounts should normally be filed as being in default where those payments due have not been received for more than six months."

The guidelines you have quoted provide suggested timeframes businesses can use when deciding whether to register a default on a customer's credit file, and do not supersede the scenarios given within Section 10. In your particular case, XXXXXXX LTD have not applied a default following six monthly missed payments, and instead, have correctly registered defaults only when the respective debts were sold externally to debt collection agencies, in accordance with Section 10 of the ICO guidelines. Therefore, these would still remain applicable even if previous defaults had been applied to your credit file when each of these agreements had been in arrears for six months. With this in mind, I am again unable to conclude that any error or misconduct has been committed by xxxxxxxx Limited, and we will be unable to authorise the removal of these defaults from your credit history.

I am sorry that this is not the outcome you were hoping for. As this is our final response, and our position remains unchanged, any future correspondence should be referred to the Financial Ombudsman Service: South Quay Plaza, 183 Marsh Wall, London, E14 9SR, as advised within our previous letters

[Riz]

Re: Defaults Registered 4 & 5 years following account deliquency

ICO are disagreeing from my conversations with them on the phone

Disagreeing with your interpretation or the Finance Companies?

Sorry. Just want to pin that down before we go any further.

[DBY]

Re: Defaults Registered 4 & 5 years following account deliquency

Disagreeing with your interpretation or the Finance Companies?

Sorry. Just want to pin that down before we go any further.

Disagreeing with the Finance company and agreeing with me.

[Riz]

Re: Defaults Registered 4 & 5 years following account deliquency

Disagreeing with the Finance company and agreeing with me.

Good. That makes a world of difference.

[Never-In-Doubt]

Re: Defaults Registered 4 & 5 years following account deliquency

Disagreeing with the Finance company and agreeing with me.

correctly so as well it appears

[Never-In-Doubt]

Re: Defaults Registered 4 & 5 years following account deliquency

Ahh now it all makes sense, this is a Creation Finance (Sygma Bank) finance agreement - they are a nightmare at the best of time so I fully appreciate the headache they're causing you - plus being French/Brummie, their take on the DPA is somewhat sketchy to say the least!