ICO Ruled in my favour about kensington, what do i do next

chrislee2810

I raised a concern with the ICO over how my data is being reported to the CRA by kensington. They have refused to default a debt and have been reporting it as 6 months in the arrears since 2008. The ICO have ruled in my favour but i have the feeling that Kensington will not honour the ICO's decision. I would like to know of what options are available if they ignore the ruling? Here is the letter that the ICO sent me:


I write further to my previous correspondence of 4 February, about Kensington.

You raised concern that Kensington is reporting to credit reference agencies inaccurate information. You are concerned that the account information provided to credit reference agencies has shown your account to be six months in arrears since 2009, and believe instead the account should have been placed in default in early 2009.

In light of the supporting information you have provided and Kensington’s recent correspondence I consider that it is unlikely that Kensington has complied with the fourth principle of the DPA in this instance.

My assessment is made on the basis that as your final payment was made to Kensington in December 2008, I consider that Kensington should have identified and recorded on your credit report file that the relationship had broken down in early 2009, and that this should have been reflected in your account being placed into default.

I will write to Kensington to inform it of my assessment decision and ask it to reconsider how it reports the credit status of the account. I will also ask it to send you written confirmation of what action it has or intends to take on the basis of my assessment decision.

It should be noted that my assessment decision does not relate to whether money is owed to Kensington, instead it relates to the continued reporting of the outstanding monies owed to credit reference agencies which I consider to be incorrect.

Most organisations want to put things right when they have gone wrong and learn from complaints that are raised with them. Although we are not taking regulatory action at this time, I will also ask Kensington to consider the information I provide it in order to enable it to prevent this situation from happening again.

We will keep a record of your complaint and take this assessment decision into account if we receive further complaints about Kensington.

The information we gather from complaints may form the basis for action in the future.

Please be aware however that only a Court possesses the power to order organisations to amend or remove personal information held about individuals.

If Kensington refuses to amend the personal information which we regard to be incorrect you may wish to consider seeking legal advice about taking this issue to Court.

fermi

So if the had done as they should, then it would have been defaulted early 2009, and would bar by this time already been off your report for a year or more. Instead it has improperly sitting there to this day, and especially in the last year haring your credit file when it should not have been there.

If Kensington refuse to amend, then you could tell them that:

- you will now the matter to the FOS as a formal complaint, where you will ask them to make a binding decision and possibly award redress. That is assuming you are within time, and/or within an exemption if not.

and/or

- you will consider directly seeking an order of the court and redress.

chrislee2810

Thanks Fermi, I just have the feeling that they will fight it. There is some other advice that i would like. The home that the loan was secured against was repossessed in Novemeber 2008 and sold on in early 2009, when the house was sold on there was not a sufficient amount of money to cover the secured loan. In March 2009 Kensington closed the account and released the charging order on the property. My question is that does the debt become a unsecured from this point, if it does become unsecured, would it mean that the debt is statue barred?

I know that i owe the money and i would be happy to work out a way of paying it back but i am getting mixed advice on where i sit with it.

Thanks

fermi

In that case I would remind Kens that ICO guidelines at the time stated that:

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.

14 Long-term secured loans

Although long-term, secured loans, such as mortgages, are likely to involve monthly repayments, they are an exception to the general standard. The existence of a secured asset which, if repossessed, will indemnify the lender, and the length of the term involved, distinguish this category from the majority of products. This may mean that the lender is prepared to allow the customer greater latitude if the account gets into difficulties. A lender may decide that, even though one or more of the above indicators has occurred or more than six months has passed without a payment being received, there is no breakdown until they have decided to take possession of the asset. Nevertheless, there are practical problems facing lenders in these circumstances because in some cases, even after court action to gain possession has been taken, a customer will go on to repair the relationship by starting again to pay on a regular basis the contractual sums (or at least an agreed compromise sum that would constitute a variation in payment terms as indicated in paragraphs 17 -23).

If meaningful information is to be reported to credit reference agencies there needs to be a consistent approach by lenders that also needs to take account of the practical problems they face. This is also necessary to treat all customers in this situation fairly. Consequently, a lender should file a default no later than six months after the date of a successful court application to proceed with possession unless

• the customer has made reasonable and agreed arrangements to repay,
• the lender can justify not filing a default on an exceptional basis. For example, the lender is fully informed of the circumstances and knows that payments will start again, or
• the loan has been included in a bankruptcy in which case the default should be filed in accordance with the guidance in paragraphs 47 – 48.

In rare circumstances the court can grant possession on conditions that delay physical repossession for a long period of time, even though the customer is not making an acceptable agreed level of repayment. This is usually on compassionate grounds. In these circumstances the lender should record a default within the six month period of the order date.

and that you be taking them to the FOS unless they apply a default within that tine frame.

fermi

chrislee2810 wrote: »

In March 2009 Kensington closed the account and released the charging order on the property. My question is that does the debt become a unsecured from this point, if it does become unsecured, would it mean that the debt is statue barred?

I know that i owe the money and i would be happy to work out a way of paying it back but i am getting mixed advice on where i sit with it.

Thanks

It is unsecured in so far as the charge is gone, but in legal terms at least the capital owed was still a debt 'under deed' in terms of which part of the limitations act applies.

https://www.nationaldebtline.org/EW/factsheets/Pages/11%20EW%20Mortgage%20shortfalls/Default.aspx

If you owe mortgage capital

Mortgage capital is the money you originally borrowed. For this part of a mortgage shortfall debt, the lender has 12 years to use court action to make you pay. This is under section 20 (1) of the Limitation Act.

If you owe interest

Mortgage interest is the interest you were charged to borrow the money. Your lender may also charge interest after your home is sold. For this part of a mortgage shortfall debt, the lender has six years to use court action to make you pay. This is under section 20 (5) of the Limitation Act.

antrobus

chrislee2810 wrote: »

.... In March 2009 Kensington closed the account and released the charging order on the property. My question is that does the debt become a unsecured from this point, if it does become unsecured, ....

Yes.

chrislee2810 wrote: »

.... would it mean that the debt is statue barred?...

Not yet. The limitation period for mortgage debt is 12 years.

chrislee2810

Thanks for all of your information. I sent them a SAR and they refused to supply it as they said that my signature did not match (had the same signature since I was 16. I have now sent them another SAR with my verified ID and the ICO have written to them. I will await their response. Hopefully they will take the info from the ICO onboard, but I just can not see it.

chrislee2810

By the way, I have already contacted the FOS. They informed me that there is no much they can do without a signature from my ex, I am no longer in contact with her and have no means to contact her. I think my only option would be to take the matter to court.

chrislee2810

Hi Guys, I received a letter from Kensington and they do not agree with the ICO's ruling. Can anyone point me in the right direction in how I take them to court?

rizla_king

http://www.legalbeagles.info/forums can help with that

rizla_king

chrislee2810 wrote: »

By the way, I have already contacted the FOS. They informed me that there is no much they can do without a signature from my ex

why not? the incorrect data is on your credit file. complain to FOS that you believe they should be dealing with this