CCAs post April 2007

[car2403]

This thread makes a decent point though, IMO, (not that I'm implying it doesn't anyway...) in that DCA's may pressurise debtors in to believing that the 2006 Act applies when it doesn't - some will probably even try to bring claims under it, if they can get away with it! I can see some of the scrupulous ones getting Judgment by Default or Admission under this if debtors aren't aware. (Surely a reason to have Judgment set aside though, IMO)

 

Every debtor with an agreement governed by the 1974 Act also needs to be aware of this as creditors are already, from what I've seen, trying to get debtors to sign a new agreement (consolidating, refinancing, whatever term they use) which will ultimately mean you lose the protection of the 1974 Act and will be under the mercy of the 2006 Act.

[car2403]

Absolutely fantastic news to know that the 2006 CCA is not retrospective in terms of S127 (3) of the 1974 Act. I have been trying to get a default removed via the Information Commissioners Office and their response was that the new 2006 Act negated S 127 (3) of the 74 Act. The office line has been as quoted by the Information Commissioners Office is that where an agreement is irrevocably unenforceable by virtue of S 127 (3) of the Act the CRAs are not allowed to record a default. I was asked by the Information Commissioners Office to show evidence that the 2006 Act was not retrospective and nowI have that evidence - thank you oh so much! i have been trying for ages to dig up some documentary evidence that this was in fact the case.

 

Sounds like a circular argument to me, as only a Court can decide if s.127 applies to any agreement, even under s.127(3), as it's only when asked for an Enforcement Order under s.65 that this can be used.

 

Agree with Edz11, in that we need more information and background to this post please flash?

[car2403]

Good evening comrades. I have today emailed the Information Commissioners Office requesting a "second stage case review" in order to have a default removed. The story is that after having done a CCA request to RBS Card Srevices they could not produce the agreement. Consequently after them trying to wiggle out of their contravention of the Act they eventually discharged the balance of the credit card account! However, they would not remove the default that they put on my CRA file. I then went through the formal process with the Information Commissioners Office basing my complaint on the total lack of a CCA which I considered barred RBS from processing my data.

 

The Information Commissioners Office then after having stated that S127(3) of the Act did in their view prevent the CRA from registering the default went on to state that the 2006 Act repealed s 127 (3) amongst other things and that I could not challenge the data held on file.

 

As a result of the information gleaned from Paul, showing clearly that S 127 (3) had not been repealed I submitted this to the Information Commissioners Office. So now I await a result and will keep you posted.

 

Something I have noticed is that when asking certain parties for a CCA they have referred to the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI 1557. they then state that they can supply a copy without certain information e.g. signature box etc as contained within S 3 (2a)....

 

My interpretation of this section is that it refers to pre-contractual aspects of the Act.

 

Any views or comments?

 

Interesting, because I read a post a few days ago (sorry, can't find the link right now - too many subscriptions!) saying that the ICO was taking an "office view" that any irrevocably unenforceable debt under s.127(3) should have it's Default removed as being totally inaccurate.

 

If that's the case, you're right to ask for the initial (monkey!) decision to be reviewed! (Hopefully, an organ grinder will get to look at your complaint now!)

 

 

I'll post the link when I come across the thread again, as the OP posted up part of a letter from the ICO saying this was the decision he was applying.

 

Hmmm... Inconsistency from a regulator? Surely not!

 

[car2403]

The link is here; http://www.consumeractiongroup.co.uk/forum/general-debt/125119-ccas-post-april-2007-a-2.html#post1327617

 

There is another post somewhere from another poster that has part of the ICO's letter that states their newly constructed view.

[car2403]

Running scared you mean?

 

Or, perhaps, they have decided to do their jobs properly as most CAG members are having to turn to the Court to enforce their rights - which probably means less work/staff/funding for the ICO!

[car2403]

The Data Protection Act requires consent to process the data - consent is taken to have a wide meaning by the ICO, so the fact that you probably agreed to the terms of the agreement means they may have an implied consent to process.

 

This isn't my opinion, but just setting you up for the response you get from the ICO - this response seems to have been changing recently, as decisions are being challenged and reversed.

 

IMHO, without an executed agreement, there can be no lawful default, so no Default can exist and therefore any consent is void as the lender can't claim a legitimate interest in processing the data.

 

Incidentally, the CRA's claim a legitimate interest in process your data, without your permission, based on the need to provide credit check data to their customers, with whom you have a contractual obligation to and have consented to their sharing of your data. This too isn't my opinion, as the above applies to these CRA's as well - they just don't seem to accept it as that.

[car2403]

There's a difference in how Consumer Law and Data Protection Law applies though - if an agreement in unenforceable under Consumer Law, that doesn't necessarily mean that any consent to process under that agreement is void at Data Protection Law. In fact, the creditors are claiming they have a legitimate interest in processing your data even if the agreement is unenforceable, as the "debt" still exists and needs to be paid - if they do have a legitimate processing, they don't require your consent. (Back to the CRA processing argument)

 

The ICO's view on how the DPA is applied doesn't rely on any of the legalities under the CCA, which is why it's best to progress a claim with the Court, who has to take a hollistic approach to the issue, rather than focussing solely on the DPA and ignoring the CCA completely.

 

This has been raging on for sometime though - see here;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/111211-defaults-background-removal-methods.html

[car2403]

I think I've answered this above, but I'll clarify again - the DPA doesn't require consent or evidence of consent to process your data. Under the Act "an act" of contracting with another party that result in a debt means that party has a legitimate interest in processing your data (and, to a lesser extent, sharing that data with CRA's for credit/risk/crime avoidance reasons) - the fact the agreement is unenforceable (which is a remedy under the CCA for non-compliance with it's prescribed method of contracting with you) is irrelevant to the fact that you did indeed contract with that party and received a benefit.

 

Basically, the DPA would be satisfied by an agreement (albeit unenforceable in a Court due to the CCA) showing that you had an agreement with the Bank and received a benefit under it.

 

The Court - if they didn't take a hollistic approch, in the same way the ICO has done in the past - would have to decide that there was a contract, that you must have agreed to it to receive the benefit you did and that there were contractual obligations under that agreement. Evidence of this would be the original loan amount being advanced, or drawing on a running credit account and making payments against the account while the creditor charges interest to it.

 

The law of contract is totally separate to Consumer Law - consumer law adds extra protections for the consumer, as they are a disadvantage when contracting with a lender. This has no effect on the contract itself, as the debt still exists, so the lender will claim it is entitled to report data as per the contract.

 

There is also a difference between a "default" and a "Default"; a default is a breach of the terms of the agreement, not necessarily relating to making regular payments, (such as selling a vehicle which is security under a HP agreement) but breaching any term in the contract. A Default is an entry on your CRA file showing you've breached the agreement. A default doesn't necessarily need a Default and, to add to the confusion, a Default doesn't necessarily rely on a default occurring! (Where the contract allows the creditor to default/Default/Terminate the agreement without you being in breach)

 

This is a complicated area of law - and it's like comparing apples and oranges when putting contract and consumer law side-by-side and trying to explain it to a layperson - but I can see where the ICO comes from in their view.

 

Just be pleased that the Court is bound by the CCA, (which is regulated by the FOS) which is outside of the remit of the DPA, so he doesn't have to take that in to consideration. The ICO also only offers opinions on whether the DPA has been breached - which we (now) know.

[car2403]

My counter arguement to this would be a contract in this case has to be in writing when one lends to the consumer above a certain amount for longer than a certain period then the contract cannot be implied or otherwise. If what you are saying is correct then why do the lenders even bother to put the bit about data sharing in their agreements. I have seen several applications forms that has no reference to data sharing where does one stand then. I am not talking about unexecuted or unenforceable agreements, there are application forms with no mention of data sharing.

 

Infact upto now I have actually taken the same view as you, but as time goes by I am thinking this can't be right.

 

What is the use of S10.

 

Look at my thread for further http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/127919-does-s10-serve-any.html

 

They include the terms to share data as it's a criminal offence to share data about a data subject without their express written permission under s.35 DPA.

 

s.10 is about stopping processing causing damage - there has to be some processing in order to even consider s.10.

 

Note: This isn't my view - I'm explaining how I think the ICO has come to their opinion. I actually think it's wrong, as you've mentioned.

[car2403]

are u on photobucket?

 

If so scan into there and post up the last code then you will gwt a big copy of your letter.

 

Chrissi

 

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html#post1151870

[car2403]

notice how this pdf describes default according to Information Commissioners Office, are there any statutory instruments re credit ref agencies?

 

Interesting, specifically the bits about;

• the date of default being correct
  
• the balance of the original default
  
• the balance outstanding on the default
  
• the fact they need a record of the agreement under which the default is registered

It's a shame that he doesn't explain the implications of not following the guidance, other than "an opinion will be passed that they haven't complied with the principles".

 

I suppose I was expecting too much from this, but it will still prove handy to many, IMHO.

[car2403]

Cheers flash. Could you do us a favour and quote the full reference from the letter so that that the letter can be quoted in correspondence back to the Information Commissioner.

 

Here's why;http://www.consumeractiongroup.co.uk/forum/general-debt/83035-guidelines-requests-original-agreement-26.html (post 501)

 

That reference won't be necessary given the PDF attached to post #51, will it?

 

Accuracy of a lender’s default records

39 Records

Any default record should be accurate. We normally expect a lender to keep records that are necessary to show an agreement exists and to support filing a default. We would also expect a lender to be able to produce evidence to justify a default record they had placed on a credit reference file. Not having any supporting records may indicate a breach of the data protection principle requiring personal data to be adequate, relevant and not excessive for the purpose for which it is processed. 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.

40 Factors to be taken into account in enforcement

Any decisions on enforcement action will be taken in accordance with our Regulatory Action Strategy. When we consider enforcement action in cases where there is inconclusive evidence of whether a default did or did not occur, or the amount of a default, we must make a judgement on whether we consider that the Information Tribunal would support a view that a default record filed with an agency is incorrect or misleading. To reach a judgement we will consider, among other factors:

any evidence that exists, even if it is inconclusive;

the credibility of the data subject;

the credibility of the lender;

the reliability of the lender’s internal procedures;

the existence of other similar complaints about the lender; and

1. the use which the customer, or lender has made of other mechanisms to determine the accuracy of the record, for instance the courts or a relevant ombudsman scheme
   

 

Show the default is inaccurate and the ICO view is that its unlawful under the DPA.

 

If I'm reading that right.

 

The letter above definately covers it in more detail though, I suppose.

[car2403]

Paul

 

Can you post it please.

 

Cheers

 

HAK

 

Here you go

ICO s.127(3) advice.pdf