Trying to get a default removed from my credit history

smithdown7h

I have a credit default on my credit history due to a dispute with Orange in 2012 which led to the withholding of payments.
At the time I was younger and much stupider and going through a bad time in my life. With the benefit hindsight, I know that my actions were reckless and that I should have acted differently. However I am now 30, in a much better place, much more mature and looking to buy a home and start a family/get married.
Even though I have lots of good borrowing history and no other markers on my credit file, this is preventing me from obtaining credit and giving me a rating of 'poor' (Experian).

I wondered if there was any way of getting the default removed and stumbled across a thread on another forum where a person had used a template letter, drafted by another forum member to get Orange to remove a credit default from their credit file successfully.

This is the letter that they used, which I adapted with my own information:

Re: Orange (EE)

Dear Orange/EE

I am writing to Orange/EE in regards to two defaults that is registered on my credit file (although they are satisfied), to which Orange/EE are the data provider.

As the defaults, which were registered on 17/06/2011 for £110 and on 22/05/2012 for £47 is now being processed by Orange. I, (MY NAME) demand that you remove the default from my credit file with immediate effect, as Orange have failed to provide any evidence to substantiate the continued processing of my personal data.

If Orange are unable to remove the default from my credit file, I, (MY NAME) demand that you send me the following information;

A true and certified copy of the original Default Notice under the The Consumer Protection from Unfair Trading Regulations (CPUTR) 2008, The Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, The Consumer Credit (Enforcement, Default and Termination Notices) Amendment Regulations 2006, and also The Consumer Credit Act 1974 (c.39) – s87 & s.88 Guidance and The Consumer Credit Act 2006 (Amendments)

I feel that these default entries were added unlawfully and without merit. Doing so has put you liable to a breach of the Consumers Credit Act 1974, in particular s.87(1) of said Act; Section 87(1) of the 1974 Act allows the creditor to send you a default notice giving you fourteen days from the date you receive it to pay the arrears. The default notice must contain all of the necessary information under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ('the 1983 Regulations') which includes;

1.a statement saying the notice is a default notice served under section 87(1) of the CCA1974
2.a description of the agreement
3.the name and address of both the debtor and the creditor
4.details of the breach (i.e. late payment) and, if the breach can be remedied, the date by which it must be remedied or, if the breach is not capable of remedy, the amount required to be paid after the expiry of the specified date;

As for your failure to remove the default, as you claim to be the data controller for my information, you should have all information available to you before making any decisions. The Technical Guidance Note – Filing defaults with credit reference agencies as set out by the Information Commissioner's Office clearly states that Section 87 of the Consumer Credit Act 1974. Where lenders are not required to issue these notices, they can send an intention to file a default through a final demand, letter, which should make clear not only the intention to file but also the date of the intended default. The date should allow the customer enough time to respond properly. Lenders who have to provide a notice of intention to file a default under a relevant code of practice should be aware that not complying with the code may be taken into account in any assessment of the fairness of their processing.

Please forward me this notice by return. If you are not in possession of this “notice of intention to file a default” you must inform me of such. Please don't inform me that I should contact the original creditor for this information, as you claim to be the owner of this account, may I bring it to your attention that under s.189 of the Consumer Credit Act 1974, you are now the creditor as defined by s.189 of the Act, and are responsible for both rights and duties. Therefore, it is your responsibility to to have all the documents related to this account and it is not my responsibility to contact the original creditor for documents that you should have in your possession.

As I was never in receipt of any of the statutory documents (Notice of Termination of Contract; Notice of Assignment or Default Notices) then the actual default notices that are shown on my credit file are unlawful and should be immediately removed. I do not want to take this through the courts but I will enforce removal by judgement if necessary, at the end of the day you have acted unlawfully by not issuing fully compliant and correctly executed legal documents.

I must insist that the following requests be carried out;

a) The Default Notice will be removed
b) The Status of the account will change from “Defaulted” to “Settled” (not satisfied)
c) The Current Balance will appear as £0.00
d) The Default / Delinquent Balance will be set to £0.00
e) There will be no date in the “Defaulted Date” field (as it will be removed)
f) There will be no date in the “Date Last Delinquent” field on the report
g) This will apply to all 3 Credit Reference Agencies, namely Experian, Equifax & Call Credit.

If it becomes clear that you do not have the documents that prove that the intention to default notice was ever sent to me from the original creditor, nor do you have the default notice, as per the Technical Guidance Note, issued by the ICO. I request that the default issued against the account be removed from my credit file with immediate effect, as under s.189 of the Consumer Credit Act 1974, you are classed as the creditor. Your attention is drawn to s.5(2), 3(b), 6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

As it is clearly evident from all previous communication between us regards to these accounts listed, I never received any such notices and as a result I contest the accuracy of the defaults and until such time you can provide proof that you complied with the above Acts, you must remove all derogatory data from the files of any credit reference agency.

I am more than happy to issue ORANGE (EE) a Subject Access Request which should include a copy of the documents I request, which I am hopeful will include a copy of said termination and default notices which, if they are missing, will leave me no alternative but to seek legal enforcement via CPR31.16. Without sight of said default notices, I cannot argue their authenticity, enforceability or execution and therefore will use this as my claim if I am forced into taking legal action, all costs will also be claimed.

It would, however, be in both our interests if you simply agree to remove the defaults, being there are so many inconsistencies with the alleged default notice, the execution, the enforceability and the legal compliance that you must surely have no other alternative but to remove it, least of all as a gesture of goodwill?

Please remember that you must answer all questions and answer them truthfully. If you do not have any of the items that I am requesting then you must inform me of such under The Consumer Protection from Unfair Trading Regulations (CPUTR) 2008.

Yours sincerely

The letter used seems to suggest that orange have not complied with some legal obligations to do with the processing of the data surrounding the credit default. It also asks them to send specific information which they are legally obliged to issue.

The person on the forum was successful in having their default removed using the template. However I had no such luck. Perhaps the template letter has been used to many times and its potency was watered down.

Anyway, they refused to remove the default but have also failed to provide me with any of the information that the letter requested.

I need someone with some knowledge of consumer law to look at this for me and advise me further. If EE have acted unlawfully I may be able to peruse this and force them to remove the default. However I don't have a good enough understanding of the laws of which the template I used letter spoke of.

Dear ,

Thank you for your email dated .

Your correspondence has been forwarded over to myself to review.

After looking into this, I can confirm that the default reflecting on your credit file is in relation to the bills on your old Orange account which were generated between March and April 2012.

It appears that after your account was disconnected on 10.04.12, you contacted us on 30.05.12 to set up an arrangement to pay off the outstanding balance on your account. At this point, we advised you that we were able to do this for you and set it up, as requested, for £19.22 a month. On this phone call, we advised you of the terms and conditions of the arrangement.

However, we received no payment for the months of June and July. As per the terms and conditions that were explained to you, this resulted in the arrangement defaulting.

We then received a call from you on 03.08.12 requesting another arrangement to be set up on your account after defaulting the previous one which was in place. At this point we went outside of our usual policy to help you with your repayments and allowed another arrangement to be set up on your account, this time for £10 a month. This was cleared in full by 02.01.13.

However, due to the fact your account had been outstanding for 6 months, your account automatically went to a default status on 12.10.12. Had your original arrangement been kept to, this would not have been the case.

Therefore, as previously advised, the default which is currently recording on your credit file is reflecting correctly and will remain.

In relation to your question regarding the issue of default notices being issued under the Consumer Credit Act; EE PCS are registered under the Act, and requires this registration for non-core services such as the giving of Interest Free Credit for phones from time to time. The network contract however is not covered by the Consumer Credit Act and accordingly we are not required to supply information under the provisions to which you are referring.

In your correspondence you also mentioned a Subject Access Request. In accordance with the Data Protection Act, you may request the information which is held about you. However, all information that is requested is subject to availability. I can confirm that the following information cannot be provided:

Incoming Call Details
Content of Orange customer SMS content over 7 days
Content of MMS sent or received.
Content of voice calls
Content of deleted voicemails

These requests must be made in writing to Customer Data Disclosures at:

Customer Data Disclosures,
EE Limited,
1 Trident Place,
Building 5, 1st Floor,
Hatfield Business Park,
Hatfield,
Hertfordshire,
AL10 9BW

This should be accompanied with a cheque or postal order made payable to EE Ltd for £10. This fee cannot be waived or credits/charges applied to the account for the cost of the administration fee.

If you wish to go ahead with this you will need to include your mobile, account number, name and address in an accompanying letter. A cheque or postal order must be received with the request as cash is not accepted. It is important that you request for information which is relevant to your needs and explain the reason for your request.

Once the request has been received a response will be sent to you within 40 days of receiving the request.

To conclude, I understand that in your correspondence you have asked that we remove the default ‘least of all as a gesture of goodwill’. Unfortunately, I must reiterate that this default is reflecting correctly and will remain and will not be removed as a gesture of good will.

I appreciate that this is not the outcome you are hoping for however I can correspond no further in regards to this matter. If you wish to escalate further then please follow our complaints code of practice which can be found at the following location:

Kind Regards,
Kayleigh Wilson

Credit Referrals Underwriter

I would be extremely grateful to anyone who could look over this and advise me further.

Thanks for reading!

Gaz83

What advice are you looking for?

You've asked for something under the CCA, Orange say that they're not obligated to provide it.

You can either accept that or threaten them with court.

fermi

The letter is riddled with misunderstandings and misapplications of the law and guidelines.

- Phone contract service agreements are not covered by the Consumer Credit Act, so requesting/demanding something under that is a nonsense.

In regards of data protection and notices of intention to file a default with the CRAs:

- they cherry pick that a notice may be advisable, but fail to mention that ICO guidelines also state on keeping records to justify. "A record that a notice of an intention to file a default was sent, if not a copy of the notice itself, will help lenders to comply with this requirement.". In other words records that one was sent may do, and no actual copy needs to be retained or produced on demand to prove or justify it, ordinarily.

- ignores the fact that if you have been adequately warned that non payment may be reported to the CRAs in T&Cs or other places, then it is unlikely to be unfair to record a default, even if no notice is sent.

On above points see.

https://forums.moneysavingexpert.com/discussion/3172602

From ICO guidance to case examiners:

CRA Default on a credit file Vs default under the CCA

I was not sent any default notices, should the default on my credit reference file be removed?

In most cases, the answer will be ‘no’, provided that adequate fair processing information was provided when the account was originally opened.

It may help to explain that a “default” on an individual’s credit file does not mean that an individual has been defaulted under the Consumer Credit Act; essentially, the same word is being used to describe two slightly different things (which can obviously lead to some confusion). Instead, a “default” on a credit file simply means the lender considers the relationship between itself and the individual to have broken down.

Therefore, whilst it may be a requirement of the Consumer Credit Act to issue default notices, there is no DPA obligation on a lender to issue a default notice to individuals before marking an account as being in default on their credit file. Although we advise that it is good practice to issue a notice, lenders will often have provided individuals with fair processing information about defaults and notices in the terms and conditions when the account was opened. Provided this was the case, then it is likely to satisfy the “fairness” aspects of the first principle.

smithdown7h

In response to Gaz83, Advice on how I might go about getting the default removed from my credit file!

Gaz83

smithdown7h wrote: »

In response to Gaz83, Advice on how I might go about getting the default removed from my credit file!

The default is factually correct. A credit file is supposed to be an accurate history of someone's record of managing credit. That's the whole point of it. Why should it be removed? Potential lenders want to see accurate information.

You've asked them to remove it as a gesture of goodwill. They've refused. That's about it. You can try and fight it through the courts as you believe they've applied the law incorrectly, or you can accept it and move on.

antrobus

smithdown7h wrote: »

...I feel that these default entries were added unlawfully and without merit. Doing so has put you liable to a breach of the Consumers Credit Act 1974, in particular s.87(1) of said Act; Section 87(1) of the 1974 Act allows...

Not really. S87(1) of the CCA 1974 simply states that a creditor needs to serve a formal notice of default on a debtor in order to be entitled to do certain things; it has no bearing at all on their ability to report a default. Or as the ICO explains;

while it may be a requirement of the Consumer Credit Act to issue a default notice, there is no DPA obligation on a lender to issue a default notice to individuals before marking an account as being in default on their credit file.

https://ico.org.uk/for-the-public/credit/

...It appears that after your account was disconnected on 10.04.12, you contacted us on 30.05.12 to set up an arrangement to pay off the outstanding balance on your account. At this point, we advised you that we were able to do this for you and set it up, as requested, for £19.22 a month. On this phone call, we advised you of the terms and conditions of the arrangement.

However, we received no payment for the months of June and July. As per the terms and conditions that were explained to you, this resulted in the arrangement defaulting....

Orange are saying that you agreed to an arrangement to pay the debt, and that you failed to keep to that arrangement, and that therefore you are in default.

That's either a factual statement or it isn't.

smithdown7h

Well, I wouldn't be on a forum asking for help if I was in position to know whether or not they have applied the law incorrectly. This is what I want to know.

Also, I know that EE did in fact remove a default as a 'gesture of goodwill' after receiving the same template letter. This leads me to question whether there is something in the letter which made them do this rather than it being simple good will.

Surely if they saw fit to serve a credit default on this customer, they also has a duty to ensure that their credit history showed an "accurate history" of their lending as well?

Why should I be treated differently if it was a gesture of goodwill? A credit default is a credit default all the same.

is it not more likely that they did in fact believe they had not acted lawfully in the manner suggested in the letter but have subsequently, when receiving it from other people, recognised it as a template drafted by someone other than the EE account holder, and therefore decided to hold out, and play hard ball, knowing that the account holder is unlikely to be able to peruse it?

Gaz83

smithdown7h wrote: »

Well, I wouldn't be on a forum asking for help if I was in position to know whether or not they have applied the law incorrectly. This is what I want to know.

Also, I know that EE did in fact remove a default as a 'gesture of goodwill' after receiving the same template letter. This leads me to question whether there is something in the letter which made them do this rather than it being simple good will.

Surely if they saw fit to serve a credit default on this customer, they also has a duty to ensure that their credit history showed an "accurate history" of their lending as well?

Why should I be treated differently if it was a gesture of goodwill? A credit default is a credit default all the same.

is it not more likely that they did in fact believe they had not acted lawfully in the manner suggested in the letter but have subsequently, when receiving it from other people, recognised it as a template drafted by someone other than the EE account holder, and therefore decided to hold out, and play hard ball, knowing that the account holder is unlikely to be able to peruse it?

Do you know the other person had exactly the same situation that you did?

Like, exactly?

There could be hundreds, if not thousands, of reasons for removing someone's default as a gesture of goodwill and not doing the same for others.

You say you'd seen this letter on another thread. Can you provide a link to said thread?

smithdown7h

No Gaz, I don't know the other person had the exact same circumstances as me. I just know that they had their credit default removed. All I know is that in order to have had a credit default against them they must have been subject to the same rules and protocols as me and they got one just the same as I did. The specifics (as far as I can see) are irrelevant. They sent the exact same letter. The first 2 paragraphs of the original reply I received was worded exactly the same (from a template I presume), however the outcome for me was obviously different.

I am unable to add links to my posts as a new member but I can paste the content of the letter the successful forum member received from Orange/EE:

Thank you for your email received in the Executive Office, regarding the above account. I confirm the following information to you.
Your Credit File must show a true reflection of your payment history and Orange legally have to provide an accurate report to the relevant credit reference agencies of this. There has been a time where your bill had not been paid on time therefore this will show as a default on your Credit File.
As a gesture on this occasion I have asked our Credit Referrals Team to remove the default from your Credit File. This should be visible to you within the next seven working days.
I trust the above is satisfactory.
Yours sincerely……..

Gaz83

smithdown7h wrote: »

No Gaz, I don't know the other person had the exact same situation as me. I just know that they had their credit default removed. All I know is that in order to have had a credit default against them they must have been subject to the same rules and protocols as me and they got one just the same as I did. The specifics (as far as I can see) are irrelevant. They sent the exact same letter. The first 2 paragraphs of the original reply I received was worded exactly the same (from a template I presume), however the outcome for me was obviously different.

I am unable to add links to my posts as a new member but I can paste the content of the letter the successful forum member received from Orange/EE:

The specifics of why they got into a default are irrelevant. But the specifics of why they got it removed aren't irrelevant at all. Here's one scenario off the top of my head:

Customer A has a default but paid £200 per month for four smartphones for each of their family members. Threatens to withdraw business unless default is removed.

Customer B has a default but paid £10 for a SIM-only contract. Doesn't plan on staying as a customer of EE.

Surely you can see why a company might be more willing to withdraw a default from Customer A than Customer B?

smithdown7h

They received a default just the same as I did. They refused to remove mine stating that they have duty to ensure that peoples credit files are a true reflection of there borrowing. But in this case, they have chosen to use their discretion. In using their discretion that persons credit file no longer accurately reflects their borrowing history as they have had a default, just as I have!

So why is it fair to apply the rules to me and not them?