Information Commissioner's Office (Kick in the Face)

[UK26]

Here is a letter i am about to send the court. I know i have coppied alot of your reply, but i think it would be good.

 

I will also send a copy to the claiments solicitor

 

Dear Judge

 

 

After making a formal complaint to the Information Commissioner's Office and Office of Fair Trading due to HFO Services Limited (The Claimant) for non-compliance to my section 77/78 request, pursuit to the Consumer Credit Act 1974, there has been some relevant information highlighted surroundingthe case which I feel, I need to address to the court to clarify the situation.

 

 

I’ve had a response from the Information Commissioner's Office regarding my complaint dated 08/04/08.

 

They have looked into the non-compliance issue and have advised although I have made the necessary request to obtain the information they are of the opinion that HFO Services Limited may not have to supply the credit agreement.

 

The Information Commissioner's Office also said even if they did comply to my request they could fulfil this by simply sending a copy of the terms and conditions of the agreement.

 

 

However, following there response I have researched the relevant legislations and my findings are as follows.

 

The Information Commissioners Office appear to be confused as what they are referring to is SI 1983/1557 which refers to pre-contractual agreements and not requirements under CCA 74 s77-79. (The Consumer Credit Act)

 

 

The agreement as mentioned in s77-79 must comply with s60/61 and contain all the prescribed, the signature is one of these.

 

 

 

 

 

Quote:

On the 29th of December 2006 in response query Ian McCartney MP replied to a letter in his then role as minister for the department of Trade and Industry he stated this, “Mr Bardsley describes a situation in which he was sent a copy of a company’s standard Terms and Conditions when requesting a copy of a signed agreement form. Just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement”

 

 

 

 

 

 

This breach of the agreement can be demonstrated as follows;

 

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.”

This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations there under as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, what is being overlooked is the part highlighted, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Now here within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

 

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

As you are no doubt aware the Consumer Credit (Cancellation Notices and copies of Documents) regulations 1983 (SI 1983/1557) is only applicable in conjunction with The Consumer Credit (Prescribed Periods for Giving Information) Regulations) 1983 (SI 1983/1569) and are only applicable to the Consumer Credit Act 1974 sections 58,62,63,63 and 64. My request is a statutory request made under the Consumer Credit Act 1974 section 77/78 and therefore the copy of the credit agreement requested must be a true copy of the fully executed agreement.

 

"I understand that under section 3 (b) of SI 1983 /1557 you may omit the signature box from the copy,

 

I would point out that not having the original document it would be impossible to verify the validity of such a document as an exact copy.

 

I therefore would suggest that a true copy including my signature be sent. If I am unable to verify the authenticity of the document the terms of 1974 section 77 act have not been met and the timescale for production of the documentation would still apply"

 

 

 

Section 77/78

 

In order for a lender to fulfil a Section 77 or 78 request they only have to send a copy of the agreement that meets with the requirements of the Consumer Credit(Cancellation Notices and Copies of Documents) Regulations 1983 [CNCD]; The document does not have to contain any signature, nor even any signature box, nor does it have to contain any information specific to the borrower. So essentially a copy of the T&C's will fulfil a S77/78 request and in that sense your lender HAS complied with S77/78.

 

But In order for a credit agreement to be enforceable it has to comply with Section 61 of the Consumer Credit Act 1974; this states (amongst other things) that in order to be properly executed the agreement must be signed, in the proper manner by the lender and the borrower and must embody all of the terms and conditions other than implied terms.

 

So in order for a lender to be able to get a court to enforce a credit agreement they MUST produce the fully executed document, or an exact copy of it to the Judge. If they can produce it for at court for the judge then there's no reason why they couldn't have produced it for me on request which from the date of this letter they have failed to comply hints my complaint to the OFT and Information Commissioner's Office.

 

However, I have now informed the Information Commissioner's Office of there misunderstanding and they have now agreed to review there initial response and is currently with there Customer service Manager who will clarify this with there consumer credit department. They however have stated they are not sure how long this will take.

 

I can however confirm the Office of Fair Trading will be contacting the claimant regarding the breach of the consumer credit act and have requested I sign a consent form allowing the disclosure of my personal information to HFO Services Limited to enable them to investigate.

 

I can confirm this was sent back to the office of fair trading completed on 9th April 2008 and now await there response to which I have not been given a time scale for.

 

I apologise for the amount of paperwork I have submitted to the court but I feel strongly I need to make the court aware of the surrounding facts to allow a proper decision to be made regarding this case.

 

 

 

 

Yours sincerely

 

 

 

 

 

 

David Benwell

 

 

Before i send this, I will await for you guys here to confirm the above is ok and i have not missed anything.

 

I Can't afford to lose the case

[The GodMother]

According to pt2537 the CCA of 2006 does not superseed the CCA of 1974.

 

I think that is rite

[pt2537]

Cracking comment.

 

has anybody got the link

 

HAK

it just so happens that i do Sir

 

http://www.francisbennion.com/pdfs/fb/2003/2003-061-consumer-credit-1974-s127-3.pdf

[Having_A_Knightmare]

Cheers Paul.

 

I am going to quote the comment to all my creditors from now on.

 

if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable

HAK

[pt2537]

Cheers Paul.

 

I am going to quote the comment to all my creditors from now on.

 

if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable

 

HAK

 

Mate, the one from Sir Andrew Morritt is much better as its from the Court of Appeal

 

and its more persuasive

[Having_A_Knightmare]

Paul

 

Is that the one where he says the perscribed terms have to be on the document??

 

HAK

[pt2537]

nah its the one where he says

Ineffect, 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

 

 

 

[Having_A_Knightmare]

It is better:D

 

Was this from the Wilson case.

 

HAK

[pt2537]

its sat in your inbox;)

[UK26]

What would it cost for one of you guys to review my case to ensure i have all in order with a good chance to win?

[Having_A_Knightmare]

Cheers mate I will pick it up when i get in from work.

 

HAK

[The GodMother]

Paul can u PM me that as i think it may be useful with a few companys

 

If it wont PM please send ot to my email addy.

[patrickq1]

It may be helpful to explain that sections 77 and 78 of the CCA state that a creditor must give a consumer a copy of their executed agreement within 12 working days of receiving a request in writing and the appropriate fee. The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (“CNCD”) specify that every copy of an executed agreement, security instrument or other copy referred to in the CCA and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof. However, it is well established that a “true copy” is not an exact copy

gggrrr havin read this comment from the information commissioner it really riles me into makin comment i regret later but in this instance i have posted a link on another two threads that is to the EU EUROPEAN COMMISSIONERS OFFICE and their personel e mail address,as the ICO SEEM TO HAVE LOST TRACK AS TO WHY THEY HAVE A JOB they seem to be flouting the rules and this is fundementally wrong so if you do decide to use the information commissioner use the prescribed form on this thread giving them permission to act with your authority and also you INSTRUCT THEM TO ACT within the guidlines set out under the EU RULES and their failure shall result in a serious complaint about their handling procedures.....the ICO office do watch these threads and have been doing for quite some time and i think what has happened is some young pipsqueek has taken exception to being refferred to as an idiot,this in my opinion isnt far from the truth concerning their reluctance to act for the consumer WHEN THIS WAS THEIR FUNDEMENTAL DUTY AND REMIT TO ACT FOR THE CONSUMER, some of their staff have forgotten this and decided that a QC/BARRISTORS OPINION HAS MORE MERRIT THAN US CAGGERS ,and they should not under any persuasion or circumstances to give out false opinions concerning the LAW and as PT has pointed out several times the LAW and its correct interpretation it is time your complaint went straight to the COMMISSIONERS OFFICE IN THE EU this i will post on here when i can find it again,

will get of my soapbox again

PATRICKQ1

[UK26]

Thanks for the info

 

do the ico in the EU have more powers then our ICO?

[patrickq1]

in a word YES the ICO have to abide by thier rules will post you a thread ben so you can see just what the ICO should be doing

patrickq1

[UK26]

Thanks Patrick

 

Regards

 

Dave

[patrickq1]

EURIM Privacy & Surveillance Working Group

Response to European Commission Consultation

Commission Decision on Draft Standard Contractual Clauses for the transfer of

personal data to processors established in third countries.

Background

EURIM is the Parliamentary/Industry group concerned with Information Society issues

both in the UK and across the European Union. In addition to its membership of MPs,

Peers and MEPs, we have about 100 corporate and associate members including both

suppliers and users of IT, as well as representative organisations (eg IEE, BCS).

It must be stressed that this response is a draft prepared by the working group concerned

with privacy and data protection issues and does not carry the status of being an agreed

EURIM position as it has not yet been circulated for political approval.

Nothing in this response is confidential.

General Comments

In general the clauses are considered to be too long and when added to a commercial

contract will not be in the best interests of any organisation.

It should also be taken into account that Article 17 of the Data Protection Directive (and,

for the UK, the 7

th Principle of the 1998 Data Protection Act) make provision for security

and confidentiality. We, therefore, question the need to impose additional requirements for

transfers outside the EEA. Is there a real business requirement for a contract of this type?

The duplication of contractual clauses over and above the original contract between the

trading partners is too much for e-business. Legal clarity and simplicity are important, but

on a practical level the flexibility of the data protection regime is perhaps more realistic.

Whilst current definitions should be used evenly throughout the standard contract, too

many definitions of terms might make the standard contract over restrictive.

If the Commission is intending that Third Country Data Processors must carry some level

of liability, then it must be made absolutely clear about the circumstances in which this is

likely to happen. Our understanding is that the main reason is if the Data Controller cannot

be sued and this is most likely to arise out of circumstances when he is no longer trading. If

this is the intention of this provision, it needs to be spelt out in black and white. If a more

onerous burden of liability is placed upon the Data Processor it is likely to reduce the

impact of use of this standard contract.

There is a requirement for clarification in relation to the liability of the Data Processor in

circumstances when a third party becomes involved in handling the data. Does this mean

that any liability possessed by the Data Processor is then passed on to the third party, or

does the liability remain with the Data Processor?

DRAFT FOR DISCUSSION – PLEASE COMMENT

WG670/mg-24-08-01

2

Specific Points

Clause 1: Definitions

1(a)

Although to do so would increase the length of the document, references to the EU

Directive should be replaced with the appropriate text. It is unrealistic to expect

organisations worldwide to tackle EU data protection legislation.

Clause 3: Third Party Beneficiary Clause

The effect of this clause as drafted is to give individuals a degree of protection over and

above that which they have in the Directive. It is assuming acceptance of a whole raft of

obligations which there is no other obligation to provide and effectively creates more

protection for processing carried out overseas than in a Member State.

Under the UK Third Party Rights Act, unless specifically stated otherwise, the parties to

the contract will not be able to amend or terminate it without the consent of any of the third

parties involved. There should be a provision to allow for revision or amendment without

reference to the third party data subjects so long as this does not damage their fundamental

rights and freedoms.

The right to take action against both Importer and Exporter should be qualified and the

Data Subject should only have the right to act against the Data Processor if it is not

possible to take such action against the Data Controller.

Clause 4: Obligations of the Data Exporter

4(a) Do we not need a definition of Authorities?

4 © places an obligation on the Data Importer to provide ‘sufficient guarantees’ regarding

security. Why in addition does the Data Exporter need to ensure compliance?

4(e) What is the definition of ‘at a reasonable time’?

4(g) Exactly what clauses are to be made available to the Data Subject – it is unlikely that

organisations would be willing to hand over a copy of the entire contract. This should be

amended along the lines of “only those parts of the contract dealing with the processing of

personal data”.

Clause 5: Obligations of the Data Importer

5(a) The Exporter should be able to terminate the agreement or suspend for breach of any

of the warranties/breach of the agreement. Standard termination clauses must be included.

There is also a need to clarify if notice of termination is required in all cases and for how

long.

5(b) The question should be asked whether Exporters would want Importers notifying their

Supervisory Authority directly, or would they want to notify themselves as they have the

relationship.

DRAFT FOR DISCUSSION – PLEASE COMMENT

WG670/mg-24-08-01

3

5(f) Is there a need for this to be in such detail?

Clause 6: Liability

If the Data Exporter has to pay damages due to some fault of the Data Importer as cited in

6.1, the Exporter should be able to reclaim such damages from the Importer. As it stands,

this is a one sided contract with the Exporter facing all the penalties.

Clause 7: Mediation and Jurisdiction

In this clause it should be made clear that if there are other disputes not involving the Data

Subject then the parties must be free to settle those disputes as they wish.

Clause 8: Co-operation with Supervisory Authorities

8.2 This is very wide and should restrict the right of audit to cases where there is cause for

concern.

8.3. Surely the main interface with the Supervisory Authority should be by the Exporter

rather than the Importer.

Clause 10: Variation of the Contract

A need to vary or modify could arise from changes in the law or changes in circumstances

e.g. scope of the purpose. It would be more appropriate to say: “will not modify these

clauses in a way which adversely affects their data protection obligations towards the Data

Subjects as described above”. (Note that under the UK Third Party Rights Act, it will be

necessary to state that the consent of Data Subject is not needed to make such

modifications.)

[patrickq1]

Justice and Home Affairs - Data Protection - Adequacy of the protection of personal data in third countries

[patrickq1]

DRAFT FOR DISCUSSION – PLEASE COMMENT

WG670/mg-24-08-01

1

EURIM Privacy & Surveillance Working Group

Response to European Commission Consultation

Commission Decision on Draft Standard Contractual Clauses for the transfer of

personal data to processors established in third countries.

Background

EURIM is the Parliamentary/Industry group concerned with Information Society issues

both in the UK and across the European Union. In addition to its membership of MPs,

Peers and MEPs, we have about 100 corporate and associate members including both

suppliers and users of IT, as well as representative organisations (eg IEE, BCS).

It must be stressed that this response is a draft prepared by the working group concerned

with privacy and data protection issues and does not carry the status of being an agreed

EURIM position as it has not yet been circulated for political approval.

Nothing in this response is confidential.

General Comments

In general the clauses are considered to be too long and when added to a commercial

contract will not be in the best interests of any organisation.

It should also be taken into account that Article 17 of the Data Protection Directive (and,

for the UK, the 7

th Principle of the 1998 Data Protection Act) make provision for security

and confidentiality. We, therefore, question the need to impose additional requirements for

transfers outside the EEA. Is there a real business requirement for a contract of this type?

The duplication of contractual clauses over and above the original contract between the

trading partners is too much for e-business. Legal clarity and simplicity are important, but

on a practical level the flexibility of the data protection regime is perhaps more realistic.

Whilst current definitions should be used evenly throughout the standard contract, too

many definitions of terms might make the standard contract over restrictive.

If the Commission is intending that Third Country Data Processors must carry some level

of liability, then it must be made absolutely clear about the circumstances in which this is

likely to happen. Our understanding is that the main reason is if the Data Controller cannot

be sued and this is most likely to arise out of circumstances when he is no longer trading. If

this is the intention of this provision, it needs to be spelt out in black and white. If a more

onerous burden of liability is placed upon the Data Processor it is likely to reduce the

impact of use of this standard contract.

There is a requirement for clarification in relation to the liability of the Data Processor in

circumstances when a third party becomes involved in handling the data. Does this mean

that any liability possessed by the Data Processor is then passed on to the third party, or

does the liability remain with the Data Processor?

DRAFT FOR DISCUSSION – PLEASE COMMENT

WG670/mg-24-08-01

2

Specific Points

Clause 1: Definitions

1(a)

Although to do so would increase the length of the document, references to the EU

Directive should be replaced with the appropriate text. It is unrealistic to expect

organisations worldwide to tackle EU data protection legislation.

Clause 3: Third Party Beneficiary Clause

The effect of this clause as drafted is to give individuals a degree of protection over and

above that which they have in the Directive. It is assuming acceptance of a whole raft of

obligations which there is no other obligation to provide and effectively creates more

protection for processing carried out overseas than in a Member State.

Under the UK Third Party Rights Act, unless specifically stated otherwise, the parties to

the contract will not be able to amend or terminate it without the consent of any of the third

parties involved. There should be a provision to allow for revision or amendment without

reference to the third party data subjects so long as this does not damage their fundamental

rights and freedoms.

The right to take action against both Importer and Exporter should be qualified and the

Data Subject should only have the right to act against the Data Processor if it is not

possible to take such action against the Data Controller.

Clause 4: Obligations of the Data Exporter

4(a) Do we not need a definition of Authorities?

4 © places an obligation on the Data Importer to provide ‘sufficient guarantees’ regarding

security. Why in addition does the Data Exporter need to ensure compliance?

4(e) What is the definition of ‘at a reasonable time’?

4(g) Exactly what clauses are to be made available to the Data Subject – it is unlikely that

organisations would be willing to hand over a copy of the entire contract. This should be

amended along the lines of “only those parts of the contract dealing with the processing of

personal data”.

Clause 5: Obligations of the Data Importer

5(a) The Exporter should be able to terminate the agreement or suspend for breach of any

of the warranties/breach of the agreement. Standard termination clauses must be included.

There is also a need to clarify if notice of termination is required in all cases and for how

long.

5(b) The question should be asked whether Exporters would want Importers notifying their

Supervisory Authority directly, or would they want to notify themselves as they have the

relationship.

DRAFT FOR DISCUSSION – PLEASE COMMENT

WG670/mg-24-08-01

3

5(f) Is there a need for this to be in such detail?

Clause 6: Liability

If the Data Exporter has to pay damages due to some fault of the Data Importer as cited in

6.1, the Exporter should be able to reclaim such damages from the Importer. As it stands,

this is a one sided contract with the Exporter facing all the penalties.

Clause 7: Mediation and Jurisdiction

In this clause it should be made clear that if there are other disputes not involving the Data

Subject then the parties must be free to settle those disputes as they wish.

Clause 8: Co-operation with Supervisory Authorities

8.2 This is very wide and should restrict the right of audit to cases where there is cause for

concern.

8.3. Surely the main interface with the Supervisory Authority should be by the Exporter

rather than the Importer.

Clause 10: Variation of the Contract

A need to vary or modify could arise from changes in the law or changes in circumstances

e.g. scope of the purpose. It would be more appropriate to say: “will not modify these

clauses in a way which adversely affects their data protection obligations towards the Data

Subjects as described above”. (Note that under the UK Third Party Rights Act, it will be

necessary to state that the consent of Data Subject is not needed to make such

[UK26]

Reply Received

 

17th April 2008

Case Reference Number RFA0194136

Dear Mr Benwell

I write in response to your correspondence dated 8th April in which you request that we review your case under the above reference number. As Case Reception Manager your request has been passed to me in line with our case review and service complaint policy. I have reviewed all the available information and document my findings as follows.

Introduction

I understand that youhave asked me to review the reply you received on 8th April as you feel that it contradicts the purpose of sections 77 and 78 of the Consumer Credit Act.

Our Findings

Your complaint was allocated to Ms Coan to deal with on 8th April 2008. Ms Coan wrote to you addressing the key point of your complaint, that you had not received a copy of your credit agreement as you had requested.

Firstly, Ms Coan explained that we do not enforce the CCA and that we cannot look into your complaint that HFO failed to provide you with a copy of your credit agreement on request. She went on to explain that the CCA is regulated by the Office of Fair Trading and that you should direct this part of your complaint to them. Ms Coan provided further information about the CCA which I note you dispute. She also added that the failure of a creditor to produce a copy of a signed credit agreement is not on its own evidence that the debt does not exist and should not be recorded on the consumer’s credit reference file.

I have considered your complaint in conjunction with colleagues from our Data Protection Practice Division and I am satisfied that the guidance provided in this case was correct. I will explain why below.

Under section 60 of the CCA the Secretary of State is empowered to make regulations as to the form and content of documents embodying ‘regulated agreements’.

Section 61 CCA’74 sets out the requirements for a ‘properly executed ‘regulated agreement’. One such condition, set out in sub-section 61(1)(a), is that the agreement must be in the prescribed form, contain the prescribed terms and must be signed in the prescribed manner by both the debtor and the creditor.

Failure to comply with the section 61 requirements will result in the agreement falling within the scope of section 65 CCA’74. This provides that an improperly-executed regulated agreement is enforceable against the debtor only on an order of the court.

The limitation on enforcing improperly executed agreement set out in section 65 is subject to a further limitation set out in section 127(3) CCA. This provides that the court shall not make an enforcement order in relation to an agreement which fails to comply with the requirements of subsection 61(1)(a) unless the agreement contains all the prescribed terms (even if not in the prescribed form) and has been signed by the debtor (whether or not in the prescribed form).

Section 127(3) CCA’74 would therefore appear to preclude an agreement, purporting to be a regulated agreement but which has not been signed by the debtor, ever being treated as enforceable by the courts.

Case Law

The conclusion as to an agreement being found to be ‘irredeemably unenforceable’ reflects the judgment in Dimond v Lovell [2000] UKHL 27 [2000] 2 All ER 897. The matter was discussed further in the case of Wilson & Others v Secretary of State of Trade and Industry [2003] UKHL 40 in which the House of Lords overturned the Court of Appeal’s finding in Wilson v First County Trust [2001] that section 127(3) was incompatible with the Human Rights Act.

Recording defaults in respect of improperly executed credit agreements

The office line, following the House of Lords decision in Wilson in 2003, has been that – where an agreement was not signed by the debtor or did not include the prescribed terms, the agreement is irredeemably unenforceable and details of the agreement should not be recorded with the credit reference agencies. This line applies only to cases where the improperly executed agreement is ‘irredeemably unenforceable’ as a result of the effect of section 127(3) CCA’74. Where the agreement could be made enforceable on order of the court the findings of the Court of Appeal in the case of R v Modupe should form the basis of our policy with regard to the recording of liabilities under such agreements with the credit reference agencies.

R v Modupe

In R v Modupe 11 Feb. 1991 [1999] GCCR the Court of Appeal considered the effect of a credit agreement which failed to comply with the requirements for regulated agreements set out in section 61 CCA’74 in that it failed to include a prescribed provision. Failure to include the prescribed provision resulted in the agreement being improperly executed. It was agreed that section 65 CCA’74 would apply to the improperly executed agreement and that the agreement was, consequently, only enforceable on order of the court. The appellant argued that, as the agreement was only enforceable by order of the court, there was no existing liability under the agreement prior to an appropriate order being made.

The Court of Appeal disagreed with appellant and found that “the fact that the agreement was not enforceable without an order of the court does not mean that there was no existing liability. There was an existing liability albeit only enforceable by an order of the court. It is quite plain from s 65 that the object of the provisions is that if the agreement is not properly completed, then one of the methods of the disappointed contractor enforcing his liability is removed from him. He cannot help himself…But the argument that no legal liability exists in the light of those matters is one which is not tenable”.

The case relates to an agreement which, under the CCA’74, could be made enforceable by order of the court. It confirms that, in such circumstances, a legal liability exists under the improperly executed agreement even though the court has yet to make an enforcement order.

Where a legal liability exists it would appear reasonable for the creditor to record the debtor’s liability under the agreement even though the agreement is not a ‘regulated agreement’ and is only enforceable on order of the court.

Impact of the Consumer Credit Act 2006

Section 15 of the CCA’06 provides that sub-section 127(3) – (5) of CCA’74 shall cease to have effect. That is to say, the court will have power under section 65 CCA’74 to order an improperly executed agreement enforceable as a regulated agreement.

As discussed above, in R v Modupe the Court of Appeal found that a legal liability existed under an improperly executed regulated agreement where the court had power under section 65 CCA’74 to order the agreement enforceable.

Section 15 CCA ’06 would appear to extend the power of the court to order an agreement enforceable even where the debtor has not signed the agreement. This might suggest that in all such cases a legal liability exists under unsigned agreements and that it would not be unreasonable for creditors to record this liability with the credit reference agencies.

Conclusion

The court in Modupe appears keen to emphasise that, while improper execution might deny the creditor the opportunity to ‘help himself’ in relation to the enforcement of the debt, the defect in execution does not preclude the existence of a legal liability. Where there is a legal liability, it appears to me that, there is no reason why this should not be reported to the credit reference agencies even if the creditor is unable to enforce that liability on his own.

I realise that this is not the outcome you were hoping for but I trust that this letter has clarified our position.

Yours sincerely

Emma Deen

DP Case Reception Manager

The Information Commissioner's Office

 

[The GodMother]

What a load of testicles.

 

Throw a letter together with this wonderful paragraph in it.

 

Please note the judgment of Sir Andrew Morritt Vice chancellor in the Court of Appeal Ruling of Wilson v First County Trust Ltd - [2001] 3 All ER 229 at paragraph 26

 

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;

[kel123]

Sorry to butt in but who's greased that monkey? I've read her last paragraph to say that a Customer Credit agreement is of no earthly use at all and that all that is needed is to show that 1. you've been paying and 2. you've had the money. How important is this '...the defect in execution does not preclude the existence of a legal liability.' She thinks she is more impoettant than her title suggests.

Glade she's not running the asylum?

Kel

[patrickq1]

Contracts (Rights of Third Parties) Act 1999 (c. 31)

 

hi ben having read her rubbish you now need to enforce the rule of law in this particular case,she has lost track of what is right and what is wrong,it seems that the ICO need to be overhauled and a further complaint to the EU COMMISIONERS OFFICE is now the way forward,it could also be a case of judicial review considering the fact that the ICO have point blank refused to deal with this case as follows her words written

Section 61 CCA’74 sets out the requirements for a ‘properly executed ‘regulated agreement’. One such condition, set out in sub-section 61(1)(a), is that the agreement must be in the prescribed form, contain the prescribed terms and must be signed in the prescribed manner by both the debtor and the creditor.

 

Failure to comply with the section 61 requirements will result in the agreement falling within the scope of section 65 CCA’74. This provides that an improperly-executed regulated agreement is enforceable against the debtor only on an order of the court.

how on earth can she comment on this

Section 61 CCA’74 sets out the requirements for a ‘properly executed ‘regulated agreement’. One such condition, set out in sub-section 61(1)(a), is that the agreement must be in the prescribed form, contain the prescribed terms and must be signed in the prescribed manner by both the debtor and the creditor.

HAS SHE SEEN ANY CONTRACT OR AGREEMENT if the answer is no then should nt she make enquiries as to why not after all she is as they purport to be INFORMATION COMMISSIONERS and without such information how are you to know if their is a valid contract

ggggrrrr they make your blood boil their incompetence and high handed attitude stinks

so if i were you my complaint would be with the local MEP AND THE EU INFORMATION COMMISSIONERS OFFICE and also a case of MAL ADMINISTRATION through the GOVERMENT OMSBUDSMAN dont give up on this one Ben you are being hustled and the ICO already know and have had dozens of complaints about this company....and again check which company it is that is prosecuting you is it capital or services

patrickq1

[UK26]

HFO Services

 

they claim that the OFT should be the ones that the complaint should goto.

 

Ive also done this aswell as Trading Standards.

 

However, i have pointed out, ive asked the default notice to be removed to which HFO have refused.

 

and now i want the ICO to act as i beleive the help in removal of incorect data held at the CRAs is in there remit

 

Regards

 

Dave

[patrickq1]

from bluefairys thread

Judge dealt wiht them both at the same time. He set aside the judgement and the charging order. He then raised issue with my argument that the Claimant had no locuss standii. My view is that on top of all other defences is the argument that HFO Capital are purported to have purchased the debt, but summons are issued in the name of HFO Services Ltd. HFO Capital Limited, according to their company search, was incorporated in the Cayman Islands and is not registered in the UK, so they cant sue but HFO Services cant either as the debt is not theirs

have a look at bluefairys threads concerning HFO and check which company is prosecuting you and who officially owns the debt

patrickq1