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Information Commissioners Letter - Advice Please


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Hi

 

I have received a letter from the Information Commissioner re my complaint about a certain bank. I have enclosed here what they have said. Please would someone advise me about it. Many thanks

 

Case Reference Number

Dear Mr

Thank you for returning your correspondence dated ******* 2008, regarding ********

Please accept my apologies for the delay in replying to you, our office is currently dealing with large volumes of work. This has meant that we have been unable to deal with incoming correspondence as promptly as we would like.

You have complained that ******** have not responded to your request for a copy of your credit agreement under sections 77 and 78 of the Consumer Credit Act (CCA).

It may be helpful to explain that the Information Commissioner regulates and enforces the Data Protection Act 1998, amongst other legislation, but we have no involvement in regulating these section(s) of the CCA. The CCA is regulated by the Office of Fair Trading. As such, this aspect of your complaint is not one that we can look into.

To pursue this matter you should call Consumer Direct on 08454 04 05 06 for advice or write to:

Office of Fair Trading

Fleetbank House

2-6 Salisbury Square

London

EC4Y 8JX

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.

Regulation 3(2) of the CNCD Regulations allows the following to be omitted from any copy:

a) lnformation in the original which relates to the debtor, hire or surety or is included for the use of the creditor or owner only and which is not required to be included in the original agreement by the Act or by any regulations as to form and content. Therefore it is not necessary for the copy to reproduce, for example, details of the business or occupation of the debtor, the name and address of the employer or bank details of his income etc,

b) Any signature box, signature or date of signature.

Therefore there is no requirement for ****** to send you a copy of the original agreement.They may simply send you a copy of the terms and conditions of the agreement. Further to this, sections 77 and 78 of the CCA do not apply once the agreement has ended; therefore a creditor does not have to supply you with a copy of the agreement if the credit has been repaid.

You have also complained that ***** passed your details to a debt collection agency. The Data Protection Act allows an organisation to disclose information if it is required for prospective legal proceedings, including the collection of debts. It is also likely that the terms and conditions of any loan agreement allow information to be disclosed if a debt to another organisation. Therefore it would not seem that **** have breached the Data Protection Act by passing your details to a debt collection agency.

It may also be helpful to explain that the failure of a creditor to produce a copy of the signed credit agreement is not, on its own, evidence that your debt does not exist or that it is not enforceable and should therefore not appear on your credit file. If the credit grantor can supply some other evidence of the agreement and you have no evidence to contradict this then it is likely to be proper for the debt to continue to be recorded on your credit reference file or for your details to be disclosed to a debt collection agency.

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Info Comm. Is quite correct. they do not enforce the CCA S77/78 legislation, the OFT/Financial Services Ombudsman enforce it, so in effect, your complaint was sent to the wrong body. I.C. enforces Data Protection aCT.You need to send yourt complaint to trading Standards, and ask them to inform OFT about this company's breach of the law

I am a lawyer, but I am an academic lawyer. I do not practice as a barrister or solicitor. You should consult a practising Solicitor BEFORE taking any Court or other action

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