RBS, defaults, DCA's and SAR - answers please?

[foolishgirl]

The OC should keep all info. pertaining to your account for a period of 6 years after the account has terminated. You may be lucky if you apply to the OC for the statements or you may have to conclude your claim at 2001.

[spaspeckerthedull]

The OC should keep all info. pertaining to your account for a period of 6 years after the account has terminated. You may be lucky if you apply to the OC for the statements or you may have to conclude your claim at 2001.

 

 

but my account hasn't been terminated?

[foolishgirl]

Was it not terminated when you received the default & it was passed to DCA?

 

Do you know if the assignment was absolute or equitable ie. did the DCA buy the debt outright

Edited October 2, 2008 by foolishgirl
addition

[spaspeckerthedull]

don't think so, as far as I'm aware it hasn't gone to a DCA (unless that's what CMS telford are)

 

I remember the account was kept open for me to pay into only - I wasn't actually allowed to use the account as an account - and it was closed by them earlier this year as the outstanding balance (what I owed them) was paid off. I've already CCA'd them on the outstanding loan account to which they haven't come up with a signed agreement, but that's a different thread.

 

My other query is related to the S.A.R - (Subject Access Request) problem though, I need to know if I can claim back PPI on the loan but can't put anything together as they haven't given me the info? I'm in a bit of a catch 22 with this

Edited October 2, 2008 by spaspeckerthedull
info added

[foolishgirl]

If the account wasn't closed, you should (in theory!) be able to obtain all the statements you require.

 

Re. the PPI, can you remind me, are you still missing the CCA for this loan?

[spaspeckerthedull]

If the account wasn't closed, you should (in theory!) be able to obtain all the statements you require.

 

Re. the PPI, can you remind me, are you still missing the CCA for this loan?

 

yes - CCA has never been provided, just the usual signed application but I do have in my posession the banks copy of the agreement, I must have pocketed it by mistake the day it was agreed - although it is only a printed document that contains no signatures it does have "bank copy" printed on it and AFAIK I don't have my copy of the original credit agreement either

[foolishgirl]

Firstly, if you have a copy of the agreement, does it not state the PPI figures?

 

Secondly why are you worrying about claiming the PPI? If the bank cannot produce the signed CCA, they have no case in law for repayment of the sum loaned but you cannot then reclaim PPI.

[spaspeckerthedull]

Firstly, if you have a copy of the agreement, does it not state the PPI figures?

 

Secondly why are you worrying about claiming the PPI? If the bank cannot produce the signed CCA, they have no case in law for repayment of the sum loaned but you cannot then reclaim PPI.

 

Yes, PPI figures are stated in the paperwork I have, and yes as far as Ive been made aware on this forum they have no case for repayment due to missing signed CCA, although I am fairly twitchy after reading tiglets response in post #100?

 

I'm not worrying about claiming PPI expenses, but I am wanting the paperwork pertaining to the royalties account to be able to claim the charges I paid back in 98 - 99, they should be quite an amount as there was a lot of malarkey going on at that time with my wages etc. and DD's going out with insufficient funds etc.

[foolishgirl]

You really should not be getting twitchy - read posts 111 onwards again. Not for the first time it looks as though from the letter Tiglet quoted, OFT small fry don't know the law properly in respect of CCA1974 etc. although you may have to 'educate' a DJ with a similar viewpoint eventually!

 

So, on the royalties account, am I correct in saying this is still open i.e. not terminated & you are wanting statements from 98/99?

If so, you should write again & demand them. They may require a fee (the info. is not always automatically provided as statements under a SAR) for the actual statements but they would possibly be able to give you the sums in relation to charges under the SAR etc.

[spaspeckerthedull]

Firstly, if you have a copy of the agreement, does it not state the PPI figures?

 

Secondly why are you worrying about claiming the PPI? If the bank cannot produce the signed CCA, they have no case in law for repayment of the sum loaned but you cannot then reclaim PPI.

 

I'm gonna have to double check my royalties account status, back in 2001 I was told I couldn't use the account as a current account and that it was to be used to pay in ONLY, ever since then the balance has increased to over £5k from my agreed monthly payments. I got a letter from CMS earlier this year saying that all funds in that account were now transferred to another and that the royalties account was to be closed

[tiglet]

This may help (just found it today): Time Limits for keeping Records > Whiting & Partners

[foolishgirl]

And by coincidence Citizen B has just posted this:

 

Re: CCA, DCAs and the Unfair Commercial Practices Directive I dont know whether this is of use to you. I would think only copies of the documents would be passed on when an account was sold. I am sure one of the more legally aware people will be able to confirm for you.

 

I am still trying to find the source of this information I discovered somewhile ago.

 

************************* ********************

“Document Retention

 

According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

 

As a loan agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

 

Finally, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007. “

[tiglet]

Great minds and all that.

 

[spaspeckerthedull]

UPDATE:

 

letter today from robbinscum way:

 

Dear Mr *****

 

Account :*******************

Client: Robinson way

 

We refer to the above account and acknowledge your recent communication.

 

Having reviewed your comments we can now advise you that we have closed your accounts in our files and you will receive no further communication from ourselves in this matter.

 

If you require any further information please do not hesitate to contact us.

 

Yours Faithfully

 

blah blah

 

 

One in the eye for them then? This is in response to my CCA request that they couldn't produce and have returned my £1 postal order - the bit I like is where they list themselves as their client!! I had also complained to trading standards about them though I'm not sure that this has anything to do with that? Anyway, just wanted to post up a thank you to everyone involved in this and their advice, I'm off out now to buy a frame for this letter

Edited October 8, 2008 by spaspeckerthedull
typo

[sussex1]

subscribing, in simlilar dialogue

[sussex1]

subscribing

[palomino]

How do I instigate proceedings for breach of ... the 1997 harassment acts?

 

 

Go to the police. They know how to deal with this one.

[tinkerbell20]

Regulatory Risk at RBS/NatWest Group are now saying they don't have to provide a copy of the consumer credit agreement under the data protection Act because it doesn't form part of a relevant filing system...............gues s it beats having to either

a) produce an unenforceable one

b) admit they don't have it or

c) admit they destroyed it!

 

Guess now the Government effectively owns them the Information Commissioners Office will roll over too...............

[tinkerbell20]

Regulatory Risk at RBS/NatWest Group are now saying they don't have to provide a copy of the consumer credit agreement under the data protection Act because it doesn't form part of a relevant filing system...............gues s it beats having to either

a) produce an unenforceable one

b) admit they don't have it or

c) admit they destroyed it!

 

Guess now the Government effectively owns them the Information Commissioners Office will roll over too...............

[SharpmanTF1]

grollocks

 

Data Protection Act 1998: Guidance for Cabinet Office Staff

Standards and Best Practice Handbook for Government Departments

10. Manual Records

 

Issue

 

Section 1(1) of the Data Protection Act defines “data” to include:

“ …information which -

…© is recorded as part of a relevant filing system …

 

“Relevant filing system” is defined as:

“…any set of information relating to individuals to the extent that, although the information is not processed by means of equipment operating automatically in response to instructions given for that purpose, the set is structured, either by reference to individuals or by reference to criteria relating to individuals, in such a way that specific information relating to a particular individual is readily accessible.”

 

2. There are two elements to the definition. Firstly, it must be relatively easy to locate the relevant file, and secondly, there must be an internal structure to the file to allow specific information relating to an individual to be easily located. The first element requires a file series which is ordered in alphabetical (or other logical) order. Where the name of the individual (or a reference number or other identifier uniquely identifying him) is clearly contained in the title of the file, so that references to the individual can be easily located, a file would clearly satisfy the first element. However, even if a file were to bear a subject title such as “disciplinary proceedings” rather than the name of an individual, but within that file separate folders were held on particular individuals, that file would probably come within the scope of the Act, making personal information held on it potentially disclosable. Any set of files may constitute a filing system; they need not be registered files.

 

3. To fulfil the second element – possessing an internal structure - the contents of a file must be ordered in such a way that specific information about the data subject can be readily extracted. This would exclude many files where the contents are simply filed in chronological order. There must be greater organisation, such as dividers separating different subject areas within the file or an index or logical sequence. If either of these elements is not fulfilled, the filing system will not come within the scope of the Act, and need not be searched. Do not assume, simply because you know where a particular document is filed, that the information is “readily accessible”. The important question is whether a person unfamiliar with your filing system could locate the information easily.

 

What do they do, just chuck everyones agreements in a big box and hope nobody needs them!

[shakespeare62]

I do have a copy of the 1983 regs but it's in pdf & I can't attach on this thread but think this may be the section that Paul is referring to:

 

'[2 Form and content of regulated consumer credit agreements]...

 

....(4) Subject to paragraphs (5) and (9) below, the information, statements of the protection and remedies, signature and

separate boxes which this regulation requires documents embodying regulated consumer credit agreements to contain,

shall be set out in the order given by paragraphs (a) to (f) below under, where applicable, the headings specified below--

(a) the nature of the agreement as set out in paragraph 1 of Schedule 1 to these Regulations;

(b) the parties to the agreement as set out in paragraph 2 of Schedule 1 to these Regulations;'

 

Schedule 1

INFORMATION TO BE CONTAINED IN DOCUMENTS EMBODYING REGULATED CONSUMER CREDIT AGREEMENTS OTHER THAN MODIFYING AGREEMENTS

Regulation 2(1)

Parties to agreement

2. All types (1) The name[, postal address and, where appropriate, any other address] of the creditor.

(2) The name[, postal address and, where

appropriate, any other address] of the debtor.

 

 

If you want me to send you a copy of the Regs, Tiglet, PM me & I'll send it over.

 

 

The above quote correctly refers to Schedule 1 of The Consumer Credit (Agreements) Regulations 1983 SI 1983 / 1553

 

SI 1983/1553 defines requirements for the content of original credit agreements (and will apply to an original produced in court)

 

A second Statutory Instrument which defines what must be in copies of consumer credit agreements sent to a customer. I thinks it is this to which the OFT are referring, although they (OFT admin chap) have still got it wrong regarding the missing name and address of the debtor. Here's why (I'm no expert, but I have a hardcopy of the regs).

 

The Statutory Instrument (SI) is :-

 

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI 1983 / 1557

 

Section 3 (2) © only states that the name and address of the debtor can be omitted in the case of copies of unexecuted agreements. Here's the full quote from this section :-

 

 

General requirements as to form and content of copy documents

 

3. --(1)Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof.

 

(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

thereunder 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 canellable 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).

 

© in the case of any copy of an unexcuted agreement

delivered or sent to the debtor or hirer under section 62 of the

Act, the name and address of the debtor or hirer; and

 

(d) in the case of any copy given to the debtor under section 77(1) of

the Act of any executed agreement for fixed-sum credit under

which a person takes any article in pawn, any description of the

article taken in pawn

 

[end quote]

So, it follows that if the creditor is claiming it is an executed credit agreement, then the debtors name and address cannot be omitted by virtue of section 3 2© of SI 1983 / 1557 above. In which case, section 3 2(a) applies, i.e. name debtors name and address must be included in a copy of an executed agreemtn because it is a requirement under Schedule one section 2 (2) of SI 1983 / 1553

 

Hope this makes sense......(remember I'm just quoting from the regulations)

[Sparkie1723]

Hi shakespeare2,

 

The way I interpret this is...in the case of a cancellable agreements which most credit card and loan agreements are......a true copy must contain ...the name, address, signatures, and date of signatures and it is only NON cancelleable agreements they can leaves names adresses etc off.

 

Does anyone read it different I could be wrong ...most probably:-D

 

sparkie

[paulwlton]

The regs are clear the name and address of debtor and creditor must be included under a section 77-79 request.

 

The OFT are fully aware of this but they don't seem to want Joe public to know.

[FANTASY CHARGES]

The above letter is not a legal view it is an enforcement officer's interpretation of the section. I have pushed the OFT to obtain a legal view through their lawyers and it has been confirmed to me and national press that the debtor's name and address MUST be included for compliance.

 

 

RE the above post ( letter from olu ademolu at the OFT ) the second time it appeared on this site was when inkogneetoh reproduced it on may 1st 2007 so the letter was ssent some time before that

 

re the letter from the OFT

 

the link to her post is below for the record (guests take note)

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-785021.html

[JonCris]

And by coincidence Citizen B has just posted this:

 

Re: CCA, DCAs and the Unfair Commercial Practices Directive I dont know whether this is of use to you. I would think only copies of the documents would be passed on when an account was sold. I am sure one of the more legally aware people will be able to confirm for you.

 

I am still trying to find the source of this information I discovered somewhile ago.

 

************************* ********************

“Document Retention

 

According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

 

As a loan agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

 

Finally, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007. “

 

 

Agreed

 

It's pretty obvious to all but the DCA's that if an account is active for whatever period it makes absolutely no sense that data controllers should dispose of documents as many claim they have done based on the vacuous argument that the only have to retain them for 6 years from inception instead of 6 years from conclusion

 

I have said this before but the lenders have developed a business model based purely on saving costs rather than their legal obligations. They have destroyed documents rather than store them & as a result of a consumer revolt they have been caught with their pants down & are desperate to mislead consumers further & it ain't working