Subject Access Request - Proof of ID required

[blind-as-a-bat]

Have you had a letter from S Beat, there so called solicitor?

[joski34]

Not yet no..what I think Il do is following all of the threads Ive read on here...Ive CCA;d reliable and they sent a copy hand completed by them, then I sent an account id dispute still waiting for the reply, then I sent a SAR and they sent a form to complete which Im sending back today..once i get that Il send them a LBA and see what happens then.

[blind-as-a-bat]

The one i got was this in responce to my sec 10 notice

 

We are in receipt of your letter dated 12th August 2008 which has now been escalated to the legal department.

 

I understand that we complied with your request for a true copy of your credit agreement under section 78 Consumer Credit Act 1974 under cover of our letter dated 18th June 2008. You were asked to confirm your intentions in respect of future payments on your account. Your account was placed on hold. However, as we heard nothing further from you, your account was re-instated on 11th August 2008.

 

If you should decide not to make any further payments on this account we would consider your assertion that you have no legal liability for payment to be based purely on the fact that you allege that the relevant credit agreement has not been signed. On that basis, we can confirm that collection activity would cease, however, we would like to make it absolutely clear to you that should you take the decision not to make any further payments to clear your account, your non payment will be reported to the relevant credit reference agency who record this fact for a period of 6 years.

 

In summary, the lack of a Consumer Credit Agreement, or your signature thereon, is not relevant to the issue of whether you have consented to the use of, or whether we have fairly obtained and lawfully processed, your personal data.

 

There is a statutory right under section 10 of the Data Protection Act 1998 ('the Act') to require a data controller to stop processing data. A common misconception is that this grants a data subject a general right to prevent a data controller from legitimately processing that subjects data. The Act provides no such general right. Pro\ided we process data in compliance with the Data Protection Principles in the Act you may only request we cease processing where:-

(a) the processing is likely to cause damage or distress; or

(b) where the purpose of the processing is for DIRECT MARKING

 

I am not satisfied that you meet the tests set out in section 10 of the Act to establish a right under (a) above (especially as it is our case that you have previously consented to

 

 

such processing as we have carried out and/or the processing is in furtherance to a contract entered into at your request). There is a balance outstanding on your account which is due and owing and the processing of your account data will reflect that. We will accept your Section 10 notice in respect of DIRECT MARKETING only and we will now make arrangements to cease processing your data FOR THAT PURPOSE ONLY. There may be 'pipeline' mailings already selected for you which are in the course of despatch which we cannot now stop as these may be with third parties, but these wall cease shortly.

 

We await to hear from you.

 

Yours sincerely,

 

If so you will meet a brick wall because according to the CRA they are entitled to continue recording data because you opened an account with JD, the credit agreemant is not needed if JD can show you made regular payments and it was in the T&C at the time the account was opened, this is the reply i got from a CRA

 

When an individual signs a financial agreement (usually under the terms of the Consumer Credit Act), one of the terms and conditions of that agreement is that the company concerned reserve the right to pass details of the account to a credit reference agency. By signing that agreement, you are agreeing to those terms and conditions. Therefore, for us to hold financial information about you, you will have signed a contract consenting to that company passing information onto ourselves.

Please note, that if a company cannot provide you with any actual evidence of your initial consent, this does not necessarily mean that they have to remove the data from your credit report.

For example, if a company can demonstrate that an account was being paid on time for a number of months/years prior to falling into arrears, this is often seen as evidence that the individual concerned must have consented to the terms and conditions of the contract.

Furthermore, a company will only open an account if the applicant agrees to their terms and conditions so, unless the account was opened fraudulently, the account holder must have agreed to the standard terms and conditions for that type of account.

Therefore, as long as the company terms and conditions specify that they reserve the right to pass account information to a credit reference agency, a period of meeting contractual obligations, or simply opening the account, will often be deemed as evidence of consent to those terms and conditions.

 

So what you need is proof whether ANYTHING gave JD permision BESIDES the CCA to record info.

 

If it was never in any T&C,s, either in the CCA or on the site at the time you opened your account that they could record info with the CRA then you can get any record removed, trouble is getting that info.

 

I dont agree with the above, because how can a default or any other record be proved correct without an agreemant, you cant miss a payment that cannot be shown you agreed to make.

 

With that in mind though, i would be concentrating on getting JD to prove there was any permision to share your data with the CRA at all, If you got the same blank CCA as i did then it is not in there! So i would go along the lines of strict proof as to where they got your consent to share your data

[blind-as-a-bat]

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/152608-your-conduct-matter-unacceptable.html

 

Thats my thread if you have not seen it, but our cases differ as there still sending threatening letters to my OH claiming actions they cannot take, so im contemplating going down the herassment route, just letting the evidence stack up

[joski34]

Right Im with you..Have you done anthing further with them? where would you start in getting them to provide strict proof where they got that consent?

 

VMT

[blind-as-a-bat]

Right Im with you..Have you done anthing further with them? where would you start in getting them to provide strict proof where they got that consent?

 

VMT

 

I doubt they can, but they wont admit it, how did you open the account? online or by junk mail?

 

If via a mail drop, it should have been clearly stated in the leaflet somewhere, if on line it may have been in the T&C,s on the site,

 

The first is easy, get them to provide what you filled in, the second is not so easy as they would need to produce proof of the content of the website, and that you where directed to the T&C,s at the time by the layout of that page, if you know about IP addresses, you could even get them to prove you accsessed it, but doubt you had a fixed IP adress so that is probebly not a route you can take:(

 

But i wouldnt make the request that complicated, thats just ways they might be able to show you agreed, all of wich i think you will agree are a tall order for JD;)

 

Just simply ask for strict proof, simple as that, they are claiming something, your saying prove it

 

Then sit back and watch them squirm because they cant.

 

Once you have asked the question, and they dont respond you could go for a order of disclosure i think its called, that is getting a court order for them to comply and supply the info.

 

I have to be honest though, i cant see you getting anywhere with this lot without going to court, they dont seem to know or care what the rules are

[joski34]

I think it was a mail drop..an advert in a magazine but then again Im not sure its from 2001..defaulted in 2004..Il try the route you advised and see what they come back with..Il let you know and then hopefully be able to advise on taking them to court....thanks so much BAAB you have been most helpful

[blind-as-a-bat]

Hopefully you will get a numpty reply "you agreed in the credit agreemant"

 

If your wording is the same as mine you can get into the panto role and reply "oh no i didnt":p "even if i had signed it cos there is no section regarding data and third parties in it":D

[joski34]

I sent the letter below to them on the 1st december:

 

DEFAULT UNDER THE CONSUMER CREDIT ACT 1974

FAILURE TO PRODUCE AGREEMENT

 

Dear Sir/Madam

 

ACCOUNT NUMBER: XXXX

 

I wrote to you by Recorded Delivery on 16th October, 2008 asking for a copy of the above agreement together with the relevant information under Section 77-79 of the Consumer Credit Act 1974, enclosing the statutory payment of £1.00. This letter was delivered and signed for on 17th October 2008.

 

The Consumer Credit Act allows 12 + 2 working days for this request to be carried out before your company enters into a default situation. This occurred on 6th November 2008.

I have still not received a true copy of the agreement as required by S78 Consumer Credit Act 1974, just a blank copy of an agreement on which your company has hand printed my name. As such I can only assume that no contract was ever signed by me.

 

As you are no doubt aware a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the Consumer Credit Act 1974 and is therefore a complete defence to any court claim that is issued.

 

Please take note that any legal action you may contemplate will be vigorously defended and contested.

 

Furthermore your actions arguably do not comply with the Office of Fair Trading (OFT) Debt Collection Guidelines of July 2003, in that you have ‘communicated in an inaccurate or misleading manner (section 2.1) by ‘presenting information in that it creates a false or misleading impression’ and ‘failing to provide information on the status of debts’.

 

Should you nevertheless choose to initiate legal proceedings against me, I will expect to receive, with any Letter before Action, a copy of the document that you will be relying on as proof that a properly executed agreement, complying in all respects with the form and content requirements of the CCA was signed by me in respect of this alleged debt.

 

 

What I require from you:

 

I require you to ensure that all data held by you regarding the alleged agreement/debt is removed from any and all Credit Reference Agency database with immediate effect

 

Ensure that all data held by you regarding me is fully destroyed.

 

Ensure that no telephone calls are made to me.

 

Ensure that all correspondence is made in writing.

 

I require written confirmation of the above together with a quarterly statement that no data has been processed by you regarding me.

 

Should you fail to comply:

 

Failure to comply with my request under the Data Protection Act 1998 will result in the matter being referred to the Information Commissioner.

 

Failure to comply with the requirements of the Consumer Credit Act 1974 will cause me to refer the matter to the Office of Fair Trading, and Trading Standards.

 

Failure to comply with the requirements Office of Fair Trading guidelines will lead to a report being submitted to that body.

 

If you fail to comply with any or all of the above I reserve the right to take action against you without further contact.

 

I expect to receive a response from you within 12 working days from the date of this letter. In the event that I do not I will assume that you have complied with my request and I will consider the matter closed.

 

So Ive received a response to this today:

 

"Thankyou for your letter dated the 1st Dec which we received on the 11th Dec 2008. the contents of which we note.

 

Please find enclosed a copy of the letter we sent to you on the 11th November 2008,

 

We await your reply.

 

So there was no enclosure but the letter they sent was what they claim to be a true copy of a CCA with handwritten details.

 

They also advised on that letter on the 11th Dec that all future contact should be via their DCA.

 

So what shoudl I do now?? Im also waiting for an SAR from them??

 

VMT, Joski:)

[joski34]

bumping for the night owls..

[joski34]

hope someone can advise on my last post?? VMT

[blind-as-a-bat]

I sent the letter below to them on the 1st december:

 

DEFAULT UNDER THE CONSUMER CREDIT ACT 1974

FAILURE TO PRODUCE AGREEMENT

 

Dear Sir/Madam

 

ACCOUNT NUMBER: XXXX

 

I wrote to you by Recorded Delivery on 16th October, 2008 asking for a copy of the above agreement together with the relevant information under Section 77-79 of the Consumer Credit Act 1974, enclosing the statutory payment of £1.00. This letter was delivered and signed for on 17th October 2008.

 

The Consumer Credit Act allows 12 + 2 working days for this request to be carried out before your company enters into a default situation. This occurred on 6th November 2008.

 

I have still not received a true copy of the agreement as required by S78 Consumer Credit Act 1974, just a blank copy of an agreement on which your company has hand printed my name. As such I can only assume that no contract was ever signed by me.

 

As you are no doubt aware a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the Consumer Credit Act 1974 and is therefore a complete defence to any court claim that is issued.

 

Please take note that any legal action you may contemplate will be vigorously defended and contested.

 

Furthermore your actions arguably do not comply with the Office of Fair Trading (OFT) Debt Collection Guidelines of July 2003, in that you have ‘communicated in an inaccurate or misleading manner (section 2.1) by ‘presenting information in that it creates a false or misleading impression’ and ‘failing to provide information on the status of debts’.

 

Should you nevertheless choose to initiate legal proceedings against me, I will expect to receive, with any Letter before Action, a copy of the document that you will be relying on as proof that a properly executed agreement, complying in all respects with the form and content requirements of the CCA was signed by me in respect of this alleged debt.

 

As is my right under section 10(1) of the Data Protection act i now formaly request you cease proscessing my data as it is clear from your action,s that to allow you to continue proscessing said data, it is your intentions too cause damage and distress by doing so as defined in (a) of the above section and that damage or distress is or would be unwarranted as defined in (b) of the above act.

 

As you have not produced any evidence that paragraphs 1 to 4 of Schedule 2 have been met you have no defence to deny this request.

 

 

You must, within twenty-one days of receiving a notice under subsection (1) (“the data subject notice”) give the individual who gave it a written notice—

(a) stating that you have complied or intends to comply with the data subject notice, or

(b) stating your reasons for regarding the data subject notice as to any extent unjustified and the extent (if any) to which you have complied or intends to comply with it.

 

What I require from you:

 

I require you to ensure that all data held by you regarding the alleged agreement/debt is removed from any and all Credit Reference Agency database with immediate effect

 

Ensure that all data held by you regarding me is fully destroyed.

 

Ensure that no telephone calls are made to me.

 

Ensure that all correspondence is made in writing.

 

I require written confirmation of the above together with a quarterly statement that no data has been processed by you regarding me.

 

Should you fail to comply:

 

Failure to comply with my request under the Data Protection Act 1998 will result in the matter being referred to the Information Commissioner.

 

Failure to comply with the requirements of the Consumer Credit Act 1974 will cause me to refer the matter to the Office of Fair Trading, and Trading Standards.

 

Failure to comply with the requirements Office of Fair Trading guidelines will lead to a report being submitted to that body.

 

If you fail to comply with any or all of the above I reserve the right to take action against you without further contact.

 

I expect to receive a response from you within 12 working days from the date of this letter. In the event that I do not I will assume that you have complied with my request and I will consider the matter closed.

 

So Ive received a response to this today:

 

"Thankyou for your letter dated the 1st Dec which we received on the 11th Dec 2008. the contents of which we note.

 

Please find enclosed a copy of the letter we sent to you on the 11th November 2008,

 

We await your reply.

 

So there was no enclosure but the letter they sent was what they claim to be a true copy of a CCA with handwritten details.

 

They also advised on that letter on the 11th Dec that all future contact should be via their DCA.

 

So what shoudl I do now?? Im also waiting for an Subject Access Request from them??

 

VMT, Joski:)

 

Im tempted to say add something like that, should tie S beat up in knots trying to get round it if i have got it right based on the reply to me

[joski34]

they are saying that i should be dealing with the dca now and not them?

[blind-as-a-bat]

they are saying that i should be dealing with the dca now and not them?

 

Which DCA?

[joski34]

wescot...so i cca'd them too and they sent me a letter saying they would close the account and wont write again...great but thats the last ive heard from them which is why im pursuing jdw again..is that the right thing to do?

[blind-as-a-bat]

Yes, they should not have passed it to westcott in the first place, which also makes my bit in red stronger, as there agreemant, again if its the same as mine, does not contain anything about sharing your data with third parties, even if you had signed it.

[joski34]

Right..I did send the letter above but they replied saying please see the response we sent you in Nov (the supposed true copy of the cca and advising me to contact westcot)

 

So shall I re-reply with your ammended copy above and see what they say?

 

Thanks for your help BAAB

[blind-as-a-bat]

10 Right to prevent processing likely to cause damage or distress

(1) Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons—

(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

(b) that damage or distress is or would be unwarranted.

(2) Subsection (1) does not apply—

(a) in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met, or

(b) in such other cases as may be prescribed by the Secretary of State by order.

(3) The data controller must within twenty-one days of receiving a notice under subsection (1) (“the data subject notice”) give the individual who gave it a written notice—

(a) stating that he has complied or intends to comply with the data subject notice, or

(b) stating his reasons for regarding the data subject notice as to any extent unjustified and the extent (if any) to which he has complied or intends to comply with it.

(4) If a court is satisfied, on the application of any person who has given a notice under subsection (1) which appears to the court to be justified (or to be justified to any extent), that the data controller in question has failed to comply with the notice, the court may order him to take such steps for complying with the notice (or for complying with it to that extent) as the court thinks fit.

(5) The failure by a data subject to exercise the right conferred by subsection (1) or section 11(1) does not affect any other right conferred on him by this Part.

 

 

 

1 The data subject has given his consent to the processing.

2 The processing is necessary—

(a) for the performance of a contract to which the data subject is a party, or

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

3 The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

4 The processing is necessary in order to protect the vital interests of the data subject.

5 The processing is necessary—

(a) for the administration of justice,

(b) for the exercise of any functions conferred on any person by or under any enactment,

© for the exercise of any functions of the Crown, a Minister of the Crown or a government department, or

(d) for the exercise of any other functions of a public nature exercised in the public interest by any person.

6 (1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

(2) The Secretary of State may by order specify particular circumstances in which this condition is, or is not, to be taken to be satisfied.

 

they will reply that either that they dont agree that-

(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

(b) that damage or distress is or would be unwarranted.

 

Or that that one or more of sec 1-4 does apply

 

Simply there actions to date show any claim the first doesnt apply is false, and the fact they have no agreemant nor consent means 1-4 cannot apply, if they claim to the contrary they have to prove it;)

[joski34]

Ok..so just to be clear the quotes above in post 43 are from the consumer credit act section 10? do I need to put these quotes into the letter or is the quotes in red that you provided me before ok? does that make sense? (Im assuming that what you have quoted above doesnt need to go in the letter its just an expantion of what you have added to my letter?

 

Sorry if I sound a bit thick!!

[blind-as-a-bat]

No they are from the Data Protection Act, and yes i just posted them to explain how an where the info for that adition in red was from, so you could understand the reasoning behind it, sorry i should have made that clearer:)

[joski34]

Great thanks so much for your help...do you think I should add a bit at the beginning stating that account in dispute letter i originally sent them still stands and that i will not be contacting westcot and they should deal with it?

[blind-as-a-bat]

It wouldnt hurt to include that, may stop them passing the buck again, i would include a copy of wescots letter as well as proof they have stopped dealing with it

[joski34]

Ok so Ive heard nothing back from the letter Ive sent above but Ive had a response from them today regarding the SAR..I dont have a scanner so here goes:

 

We refer to previous correspondence and enclose date we hold relating to your client and which we are obliged by law to reveal to you. Each screen of data is preceded by a sheet of explanatory terms. However if there is anything you do not understand please do not hesitate to contact us. I also attach an explanation of the logic used in our credit scoring methods.

 

"You have requested a copy of the notice of "fair use" of your data. According to our records you were reccruited in response to a televison campain featuring a Dirt Devil Broom for 39.98. The commercial ran on Channel 5 from the 13th to 30th August 2001. We do not retain the details of that broadcast, given that it was over 6 years ago. We can confirm that it will have given details of the obvious and non obvious uses of your data. An opt out will also have been offered in line with best practice.

 

Whilst we do not have the broadcast available, and neither do our agents or Channel 5 we can confirm that the following wording would have been featured on the screen and during the subsequent telephone ordering process:

 

"We search the files of credit reference agencies who record the search and we share information about you and the conduct of your account to them, with other lenders and relevant third parties. Information about you and other members of your household and those with whom you are financially connected to will be used to verify your identity and for credit assesment of you and them. We also use your information including shopping habits to pen and run your account including payment recovery, fraud prevention and debtor tracing and for marketing. We may share your information with other organisations for marketing purposes. We or them may contact you by mail, telephone, email or otherwise. If you do not wish to be contacted by other organistations for marketing purposes is this ok? (yes/no). If for whatever reason we are unable to accept your order we reserve the right to pass it to our associate company House of Stirling (Direct Mail) LTD who will call upon you to offer revised terms and conditions which will be explained to you in person before you decide whether to buy the goods on those terms. Is this ok? (yes/no)"

 

You will also have been given similar data protection messages in all of our terms and conditions in the catalogues and publications from which you subsequently ordered.

 

Finally we refer to your letter of the 17th December, received today. You admit having received a blank copy of an agreemtent. The agreement form you were sent was not blank, it is in fact entirely compliant with the requirments to provide you with a true copy of the regulated agreement under regulation 3 of the Consumer Credit (cancellation Notices and Copies of documents) Regulations 1983.

 

We do not accept we are in breach of our obligations to you. On the contrary your letter admits receipt of the "true copy"

 

So thats it thats what Ive got...ive looked through the paperwork and there isnt much really there but there is no default notice, just a breakdown of the account and bits of other things..

 

So what should I do next? I dont understand the bit at the end either saying Ive admitted to getting a true copy...they sent me what I think is a standard copy of their terms and conditions and handwritten my details....

 

Any helps would really welcomed..

[cerberusalert]

"You have requested a copy of the notice of "fair use" of your data. According to our records you were reccruited in response to a televison campain featuring a Dirt Devil Broom for 39.98. The commercial ran on Channel 5 from the 13th to 30th August 2001. We do not retain the details of that broadcast, given that it was over 6 years ago. We can confirm that it will have given details of the obvious and non obvious uses of your data. An opt out will also have been offered in line with best practice.

 

Whilst we do not have the broadcast available, and neither do our agents or Channel 5 we can confirm that the following wording would have been featured on the screen and during the subsequent telephone ordering process:

 

If they don't have it, their agents don't have it & even Channel 5 don't have it how do they intend to prove it if it went to a court of law?

 

As usual they speak with forked tongue!

[cerberusalert]

I wonder if they would accept your declaration that you've already settled the account, but unfortunately neither you, your bank nor J D Williams still hold the details?

 

"What's good for the goose is good for the gander" as they say.