CCAs post April 2007

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S127(3) of the Act did in their view prevent the CRA from registering the default went on to state that the 2006 Act repealed s 127 (3) amongst other things and that I could not challenge the data held on file.

 

As a result of the information gleaned from Paul, showing clearly that S 127 (3) had not been repealed I submitted this to the Information Commissioners Office.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!

 

[Edz11]

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

[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.

[flash]

Hi, it was me who posted the edited section from the ICO. They did state that S127 (3) meant that an agreement falling under this part of the Act should not be recorded with the CRAs. However, whilst admitting that this was the "office view" they then stated that because of the repeal of S127 (3) within the new 2006 Act, the situation had now changed. they were of the view that the 2006 Act was retrospective, which is not the case.

 

So I was extremely pleased to be able to counter their misinterpretation of the new Act, and accordingly have now informed them that their legal team are wrong. Therefore, if they follow their office line, they must enforce removal of data with the CRAs. I am waiting to hear their response.

[flash]

When I spoke to the ICO they stated that the reason for forming their "office view" statement with regards to S127 (3) CCA 1974 was as a result of the Consumer Action Group. in fact, the lady in question had been told that there were some non-complimentary comments about her on the CAG web site, but she hadn't seen them herself!

[The GodMother]

Oh we have become famous.

 

Must mean we are good at what we do.

 

[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!

[maybelline]

I have had similar replies from ICO on default processing by dca's and my creditors defence which they said to the judge also was that they could still place a default on file even if agreement is unenforceable, obviously I will argue against but some concrete case ref etc would be great to have, I know cca 2006 is not retrospective and worked that into the poc just in case?!

[flash]

Hi maybelline. I am interested in what you say. I think it could be argued that the only legal mechanism that gives creditors any right to process data is when we sign the executed credit agreement. There is no statute that actually allows the processing of our data by Credit Reference Agencies - it has become custom-and-practice, or so it seems. If there is no credit agreement at all, then I fail to see how any party could argue that you have agreed to anything. Use of a credit facility, or whatever, does not imply acceptance of any terms of a contarct. As the OFT have said in their letter to me; if the agreement is irrevocably unenforceable in terms of S127 (3) of the Act then the CRAs do not have a right to process the data pertaining to that agreement. Have you actually tried to enforce your rights in the court?

[maybelline]

waiting for the hearing date but also did older agreements have anything on giving permission to process my data, I suspect not, but the main point that I want the court to pick up on is, agreement totally unenforceable and security has to be removed, then surely is absolute nonsense to then be able to process any kind of default.

[flash]

Sorry, I said OFT in my reply, I should have said ICO. What did the ICO say to you? On the basis that their official "office line" is that the CRAs should not process data, as I said earlier, then, could you not use that official view in court? The creditor and the CRAs surely have to comply with that. I am currently waiting to see if the ICO will comply with my request to have a party cease processing my data.

[humbleman]

you might want to look at this thread for some responses last year from ICO http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/72974-reply-information-commissioners-office-2.html

[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.

[maybelline]

yes, sharing is consented to when sign agreement, however, if agreement is unenforceable and the info on it inaccurate, nothing is owed as sums paid cover what would be legally due if the sums, interest rates had been done lawfully and in the correct way, surely in those circumstances, registering a default stating you owe the 'whole sum' which is made up of a variety of unlawful fees, charges, insurance etc is very wrong

 

 

just took a quick look at the ICO reply re the default I have complained about to them, answer, DPA complied with.

[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

[maybelline]

yes, succinctly put thanks

 

 

whoopeeee - just spoken to local court, now have a listing SMALL CLAIMS! ha!

 

not posting dates on open forum:):)

[flash]

What is interesting though, is that the ICO have told me in writing that where an agreement is irrevocably unenforceable with reference to S127(3) of the Act, then, their "office view" is that the debt /default should not be recorded with the CRAs. They were however, under the misconception that the 2006 Act is retrospective and that it repealed S127 (3). This of course, is not the case. I have now informed them of this, and referred them to the relevant legislation. I now await their response to my request to have the default removed, as per their "office line". In my case, the creditor, RBS, could not retrieve the agreement from their archive. Accordingly, they discharged the debt but maintained that they could record the default balance "as satisfied". I disputed this with them, on the basis that there was no evidence of any agreement at all. Therefore, they had no explicit evidence that I had given permission to process my data.

 

I take your points on-board, but if the creditor has breached contract, then how can the debtor breach a contract that has already been breached?

[maybelline]

yes agree, how can an agreement that either cannot be proved to have existed or is unenforceable then be used as the underlying basis for recording a default of said agreement, flies in the face of logic and common sense, what s that thing about 'any reasonable person' or the consumer credit act being a social document, if so, not meant for creditors to continue to batter their 'customers' with?

[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.

[maybelline]

thanks car, thats very helpful, it is confusing as you say, so many different areas but I take note that the court only has to consider the CCA (FOS, anyone had any assistance from them on this issue, I wonder), thanks.

[humbleman]

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.

 

 

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

[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.

[flash]

Hi Eddie

 

Sorry for the delay in getting back to the forum. However, attached is the scanned page from the Information Commissioners Office regarding defaults.

 

Flash

 

( Sorry about the size of the image - how do I make it bigger?)

[The GodMother]

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

[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