My mum v HSBC

[car2403]

This is from a post by Paul;

 

i also found this little gem in Sir Andrew Morrits Judgment in the Court of Appeal in the Wilson & FCT case, i note that the House of Lords have not disturbed this part of his judgment since the HoL only looked at the issue of S127 being compatible with the Human Rights Act

 

 

Quote:

“In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift,of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;”

[car2403]

Hi Sheild, that's looking good.

 

Have you considered the Data Protection Act here? If they have recorded a default with third parties, i.e. CRAs, without your mum's permission to process her data (that is without a copy of the credit agreement or original application) then they may have comitted an offence under that act also. Just a thought.....

 

Anyway, all the best and keep us posted

 

Chris

 

Not quite right, but good effort

 

The s.35 offence of sharing data with third parties without consent under the DPA 1984 was repealed by the 1998 Act. I'd argue that the offence was never taken seriously and that most people weren't even aware of it (check any DPA 1984 documentation you have, because it's definately there) so it was repealed as ineffective. Heck, even I had to tell the ICO about it, so there you go.

 

The sharing of data without consent is still unlawful, as its outside of the principles under the 1998 Act, but it isn't an offence now, sadly.

[car2403]

Hi Chris,

 

Although it's no longer an offence, would I be right in thinking it could still be a cause of action, as the recording of the default without consent to share data is an unlawful act under the Data Protection Act 1998?

 

You bet'cha it is...

[car2403]

It depends whether you want to let sleeping dogs lie - if you push the default removal issues, it's likely to need to go to Court, at cost, and you may lose. if you're happy enough with having the debt written down and learning from this experience never to fall in to the same trap again, you may just want to stop now.

 

Default removals are possible - I should know - (see my threads "car2403 v ..." for more) but it's a long, rocky road, without a definate outcome.

[car2403]

Im not saying your wrong but have you looked at this thread removal of defaults

 

might come in handy

 

Not sure how this applies, exactly, as that is challenging the CRA not the creditor? Have I missed something? (Possible! )