Next Digital Signatures on CCA

[blind-as-a-bat]

The exact wording (if i have got it right:oops:)

 

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section

87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section

88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain--

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

© statements in the form specified in paragraphs 4, 5, 7[, 8A] and 9 to 11 of that Schedule.

 

 

Details of agreement

1

A description of the agreement sufficient to identify it.

 

Parties to agreement

2

(1) The name and a postal address of the creditor or owner.

(2) The name and postal address of the debtor or hirer.

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than

fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

Action by the creditor or owner to be ineffective if breach remedied or compensation paid

 

Action intended to be taken by creditor or owner

6

A clear and unambiguous statement by the creditor or owner indicating, if any action specified under paragraph 3© or

(d) as required to be taken is not duly taken or if no such action is required to be taken, the action which he intends to take

by reason of the breach by the debtor or hirer of the agreement--

(a) to terminate the agreement;

(b) to demand earlier payment of any sum;

© to recover possession of any goods or land;

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred;

(e) to enforce any security;

(f) to enforce any provision of the agreement which becomes operative only on a breach of another provision of the

agreement as specified in the notice,

at any time on or after the date specified under paragraph 3© or (d), or, if no action is specified under that paragraph as

required to be taken, indicating the date, being a date [not less than fourteen days] after the date of service of the notice,

on or after which he intends to take any action indicated in this paragraph.

 

Requiring earlier payment of any sum

8

Where a sum of money is required to be paid under the notice,

(a) the amount of the sum before deducting the amount of any rebate on early settlement;

(b) where any rebate on early settlement is allowable under the agreement or by virtue of section 95 of the Act--

(i) the amount of the rebate allowable calculated on the assumption that early settlement takes place on the date

specified in the notice for earlier payment of the sum; and

(ii) the total amount to be paid after taking into account the amount of any rebate on early settlement, namely the

difference between the amount shown in paragraph (a) above and the amount shown in sub-paragraph (i).

 

 

 

4

Where any action is specified under paragraph 3© or (d) as required to be taken, a statement that the provision for the

taking of any action by the creditor or owner such as is mentioned in paragraph 6 will be ineffective if the breach is duly

remedied or the compensation is duly paid in the following form--

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER

ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH".

Note:

This statement shall follow the specification under paragraph 3© or (d) of any action required to be taken.

 

 

Consequences of failure to comply with default notice

5

Where any action is specified under paragraph 3© or (d) as required to be taken, a statement indicating the consequences

of the failure by the debtor or hirer to comply with the default notice in the following form--

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE

FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]".

Notes:

1. This statement shall be followed by the specification under paragraph 6 of the further action intended to be taken by the

creditor or owner.

2. Creditor or owner to omit words in square brackets if there is no specification under paragraph 6(e) of any action

intended to be taken to enforce any security.

 

[interest payable after a judgment

9A

Where an agreement makes provision for the charging of post-judgment interest in connection with a judgment sum, a

statement in the following form--

"You should be aware that if we take you to court and get a judgment against you requiring you to pay us the money you

owe us under the agreement, you may have to pay us both the amount of the judgment and interest under the agreement

on all the sums owed by you at the date of the judgment until you have paid these in full. This means that even if you pay

off the whole amount of the judgment, you may still have a further sum to pay.".]urt or in Northern Ireland to the High

Court or the county court for a time order--

"IF YOU HAVE DIFFICULTY IN PAYING ANY SUM OWING UNDER THE AGREEMENT OR TAKING ANY

OTHER ACTION REQUIRED BY THIS NOTICE, YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN

ORDER ALLOWING YOU OR ANY SURETY MORE TIME".

General

10

A statement in the following form--

"IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE

YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR

NEAREST CITIZENS' ADVICE BUREAU".

[10A

A statement in the following form--

"This notice should include a copy of the current Office of Fair Trading information sheet on default. This contains

important information about your rights and where to go for support and advice. If it is not included, you should contact

us to get one.".]

11

A statement in the following form--

"IMPORTANT--YOU SHOULD READ THIS CAREFULLY".

 

 

Depending on the date it was issued

[cadencealex]

It was issued on the 21st October 2006 and was supposed to be remedied by 13th November 2006!

 

So they gave me the 30 days but they didn't give me an extra 2 for postage?

 

This can't be a valid Default notice? Surely to god... it's got nothing on it at all!!

[cadencealex]

I write further to your recent email dated 13th February.

You state that financial data is sensitive data and therefore we are required to meet at least one requirement of Schedule 3 of the Data Protection Principles and not just rely on Schedule 2.

However, I do need to advise that the actual definition of sensitive data is as follows:

Sensitive Data

 

Sensitive Data is defined as information covering:

• The racial or ethnic origin of the Data Subject
• Political opinions
• Religious or other beliefs of a similar nature
• Membership of trade unions
• Physical or mental health or condition
• Sexual Life
  
• The commission of any offence or criminal records
  

Financial data is not included in the definition of sensitive data and we have met with our requirements under the Data Protection Act to process data fairly and lawfully.

As advised in our recent telephone conversation, please accept this as our final response. If you wish to refer this matter to any external bodies, we will, of course, respond to them directly.

With kind regards,

NC - I received this!!!!

[toto003]

I have checked some credible sources on this matter, and the list contained in the legislation is not exhaustive.

 

It is "generally regarded" (whatever that means) that information about children and financial information is also considered sensitive data.

 

Info on children (for obvious reasons)

and

Financial Information becuase (among other things) - the data can be used to aid in identity theft.

 

it looks like they are relying (hoping?) on you being (un)able to find a common law example of a ruling on financial information being classed as sensitive and/or that you are unwilling to press that matter further.

 

I will have a poke around and see if I can help find something more concrete to help you.

 

Hope this helps

 

toto

[cadencealex]

I have checked some credible sources on this matter, and the list contained in the legislation is not exhaustive.

 

It is "generally regarded" (whatever that means) that information about children and financial information is also considered sensitive data.

 

Info on children (for obvious reasons)

and

Financial Information becuase (among other things) - the data can be used to aid in identity theft.

 

it looks like they are relying (hoping?) on you being (un)able to find a common law example of a ruling on financial information being classed as sensitive and/or that you are unwilling to press that matter further.

 

I will have a poke around and see if I can help find something more concrete to help you.

 

Hope this helps

 

toto

 

 

 

It definitely is sensitive information - it is defamotory and they don't even have a Credit Agreement, the Default notice they issed was a joke, they never contacted for two years.. I contacted THEM!!!

 

the fact they are doing anything when I didn't give them permission..

[cadencealex]

Right I have had my final response, was debating raising the issue with the FOS but that could take such a long time.

 

I am going to ring up and get a full and final settlement figure and see what they say, to get the default satisfied but meanwhile take them to Court.

[cadencealex]

The definition of data in the DPA is:

 

"data" means information which-

 

(a) is being processed by means of equipment operating automatically in response to instructions given for that purpose,

 

(b) is recorded with the intention that it should be processed by means of such equipment,

 

© is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system, or

 

(d) does not fall within paragraph (a), (b) or © but forms part of an accessible record as defined by section 68;"

 

 

This has since been amended by the FOI Act to also include information which is:

"recorded information held by a public authority and does not fall within any of paragraphs (a) to (d);"

 

 

AND

 

 

Found this.. http://www.hmcourts-service.gov.uk/judgmentsfiles/j2136/durant-v-fsa.htm

 

 

AND this.. http://www.hmcourts-service.gov.uk/judgmentsfiles/j3127/smith-v-lloyds.htm

 

 

and am hoping to come up with something relevant!!!

 

 

Well a NI number is classes as 'sensitive' as is an address and name!! http://news.bbc.co.uk/1/hi/uk_politics/7570611.stm

 

 

 

 

And finally... this gives clarification on the DP laws and how it has changed in a nice simple box!

 

http://webjcli.ncl.ac.uk/1998/issue4/widdis4.html

Edited February 18, 2009 by cadencealex

[toto003]

I know this isn't what you want to hear, but I think you might need to fight this one under the remit of schedule 2, not Schedule 3.

 

Here is the opinion of a law firm that conducts courses in this area:

 

...Although many people would see their financial information as being of a sensitive nature, under the Data Protection Act, it falls into the category of personal data, not sensitive personal data. This is an important distinction ...

Ref: financial data - ISEB training courses

 

From the (albeit brief) research I have done, I am sad to admit that I share their interpretation.

 

The first two cases you provide links to, not only would be easily distinguished from your situation, but one of them actually restricts the previous broad interpretation of personal data.

 

No Judge would accept the BBC as a valid authority on what constitutes "sensitive personal data" [at least not in terms of the law]

 

I am really sorry cadencealex, I know this isnt what you wanted to hear, I am sure there is a way to tackle this, but I dont think schedule 3 is it.

Edited February 18, 2009 by toto003

[cadencealex]

I know this isn't what you want to hear, but I think you might need to fight this one under the remit of schedule 2, not Schedule 3.

 

Here is the opinion of a law firm that conducts courses in this area:

 

Ref: financial data - ISEB training courses

 

From the (albeit brief) research I have done, I am sad to admit that I share their interpretation.

 

The first two cases you provide links to, not only would be easily distinguished from your situation, but one of them actually restricts the previous broad interpretation of personal data.

 

No Judge would accept the BBC as a valid authority on what constitutes "sensitive personal data" [at least not in terms of the law]

 

I am really sorry cadencealex, I know this isnt what you wanted to hear, I am sure there is a way to tackle this, but I dont think schedule 3 is it.

 

 

Thanks for your reply

 

 

So there is no grounds to fight this on at all?

 

They have no CCA for me as I never signed one

The default notice they gave me was rubbish and not prescribed terms

They refuse to give me the CCA which is what all of this is about.. when really I knew they had no CCA because they told me!

 

They have told me the debt is unenforceable.. but will pass it onto a DCA anyways! !

[toto003]

Thanks for your reply

 

 

So there is no grounds to fight this on at all?

 

They have no CCA for me as I never signed one

The default notice they gave me was rubbish and not prescribed terms

They refuse to give me the CCA which is what all of this is about.. when really I knew they had no CCA because they told me!

 

They have told me the debt is unenforceable.. but will pass it onto a DCA anyways! !

 

I am not an expert in this area, but my understanding is that defaulting an account is a form of enforcement, and without a valid CCA (should you arrangement be covered by the Act), they are not allowed to do that.

 

IMO it is also very "shaky" about you allegedly consenting to have your data processed and shared with 3rd parties on the basis of "placing an order"

- on the "face of it" it smells unlawful.

 

As I said already, I am sure there are grounds you can use to tackle this issue, I am just not exactly sure what they are.

[cadencealex]

I am not an expert in this area, but my understanding is that defaulting an account is a form of enforcement, and without a valid CCA (should you arrangement be covered by the Act), they are not allowed to do that.

 

IMO it is also very "shaky" about you allegedly consenting to have your data processed and shared with 3rd parties on the basis of "placing an order"

- on the "face of it" it smells unlawful.

 

As I said already, I am sure there are grounds you can use to tackle this issue, I am just not exactly sure what they are.

 

 

I have had their final response so am just going to send a letter to Simon Wolfson the Chief Executive and that will be my LBA too. Wanted to avoid Court if I can but not going to be able to.

 

Just need to write my particulars of claim now.

 

They think they are above the law

[cadencealex]

This is being sent in the morning, now that I actually have their hard copy of the letter (they sent it by email too).

 

So LBA.. I am giving him 14 days!

[bazaar]

You most likely will need to follow through with court to let the jerks know you mean business, there will be more and more people doing this, UK26 has one ongoing but the thread is closed until court for obvious reasons.

These DCA's etc dont want to get to court, because they have screwed up big time. stick to your guns. Kick Long and Hard

[cadencealex]

You most likely will need to follow through with court to let the jerks know you mean business, there will be more and more people doing this, UK26 has one ongoing but the thread is closed until court for obvious reasons.

These DCA's etc dont want to get to court, because they have screwed up big time. stick to your guns. Kick Long and Hard

 

 

Thanks Bazaar.

 

when I get home from work I am making a file up in preparation so I know where I am up to and can find all the relevant documents to the case (as I am doing several things all at once, it gets messy)

 

 

I am on UK26s lowells case, I am glad he's sticking to his guns, we all need to follow suit.. although I can see why people are put off and back down... they wear you out.

 

I am getting stressed about it all at once, but I am seeing this through to the end

[MARTIN3030]

3 threads merged.

Its good that you have had a response to your S10.

A court would want to know that you had sent this,and also to see any replies.

The criteria as I recall for the S10 notice is as follows.

 

1.It must be sent to the data controller of the organsisation.

 

2.It must allow reasonable time for compliance giving a start date that you expect processing to cease.

(21 days is considered reasonable)

3.It must give clear reasons for the request and state why-including details of damage or distress continuing process is likely to cause.

 

 

 

I presume you stated your reasons in your request ?

 

Having read some of your thread,you seem to be on the right track.Open Court on N1 is the best way to file this as you have much more flexibility and control from the start.

There are some very good references in threads which will assist you with this claim.

You do know that its important to be well prepared and armed.Getting the POCS right is the main one.

I see you are sending a LBA ?

In the absence of you having made the SAR to enable you to get all that you need,you could make a request under CPR 31 once your claim is filed,requesting additional info that you need.

[cadencealex]

3 threads merged.

Its good that you have had a response to your S10.

A court would want to know that you had sent this,and also to see any replies.

The criteria as I recall for the S10 notice is as follows.

 

1.It must be sent to the data controller of the organsisation.

 

2.It must allow reasonable time for compliance giving a start date that you expect processing to cease.

(21 days is considered reasonable)

3.It must give clear reasons for the request and state why-including details of damage or distress continuing process is likely to cause.

 

 

 

I presume you stated your reasons in your request ?

 

Having read some of your thread,you seem to be on the right track.Open Court on N1 is the best way to file this as you have much more flexibility and control from the start.

There are some very good references in threads which will assist you with this claim.

You do know that its important to be well prepared and armed.Getting the POCS right is the main one.

I see you are sending a LBA ?

In the absence of you having made the SAR to enable you to get all that you need,you could make a request under CPR 31 once your claim is filed,requesting additional info that you need.

 

 

SAR being sent in the morning, I can request info again under CPR 31.

 

I am concerned taking them to Court as apparently it isn't being seen as favourable by the Judges BUT I am going to request a settlement figure so I can pay the debt before it goes to a Court (if it does).

 

I do not dispute owing the money. I initially contacted them to arrange a payment schedule and by a stroke of luck was told they don't have a CCA The snotty woman told me they couldn't enforce the debt..

 

Anyways.. I wonder what Simon Wolfsson has to say. Have also pritned off credit file as apparently another guy wrote to him and the default was removed. I don't want that to happen, for it to be replaced at a later date staying on my file for ANOTHER 6 years.

 

Thanks for your reply Martin.

[bazaar]

You should read this thread:- http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/177871-me-lowell-financial-costs.html

Shawns case was won, they didnt turn up, they had no CCA, the judge ordered that adverse data be removed,

So what are you waiting for?? Are you still here??

[cadencealex]

You should read this thread:- http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/177871-me-lowell-financial-costs.html

Shawns case was won, they didnt turn up, they had no CCA, the judge ordered that adverse data be removed,

So what are you waiting for?? Are you still here??

 

 

:D :D

 

I have got to do the POCs and am so knackered with work/studying that I haven't managed to much this week

 

Am off today and getting as much done as possible

[MARTIN3030]

Much depends on the Judge on the day-the Rankine case did no one any favours-and a few cases have gone the other way after the claimant said no agreement but they did admit to owing the money.

Yes you are right to say its not seen as favourable-but you are arguing on points of law and have tried to give the other side the chance to negotiate-so have been left (or will be left) with no option.

They couldnt remove a default entry and re-enter it again-the 6 years runs from when the default was registered originally.It cannot be registered twice-only re-registered in the name of a new owner and even then there is no extension to the original 6 year frame.

[cadencealex]

Much depends on the Judge on the day-the Rankine case did no one any favours-and a few cases have gone the other way after the claimant said no agreement but they did admit to owing the money.

Yes you are right to say its not seen as favourable-but you are arguing on points of law and have tried to give the other side the chance to negotiate-so have been left (or will be left) with no option.

They couldnt remove a default entry and re-enter it again-the 6 years runs from when the default was registered originally.It cannot be registered twice-only re-registered in the name of a new owner and even then there is no extension to the original 6 year frame.

 

 

Well I have offered to make payments. They want a percentage of the debt - I asked what the percentage is for. They said to stop it being passed to a Debt Collection Agency.

 

This has annoyed me immensely. I am happy to pay but no way am I paying that amount tomorrow. And also, I am disputing it being sent to a DCA seeing as they have no agreement.

 

I am also very annoyed the snotty woman said 'but you only have two choices to pay, one being cheque the other being debit card) - no DD.

 

I don't know what is best to do.

 

If it goes to Court, I want the default removed and I want to get out of the debt, but I don't appreciate being talked down to.

 

What would you do?!

 

 

I could wait for it to go to a DCA and then give them a settlement figure of perhaps half.. this would show as partially settled anyways.. she said it will affect my credit file - nothing they have the power to do can be worse than the Default already

 

I am worried if I go to Court I will be putting myself in the firing line for a CCJ which will affect my job in Financial Services (laughable, I know ).

[bazaar]

They are obviously trying to force you into paying when they have no agreement. So have you sent the harrassment letter to them and the account in dispute letter?

This should also clearly state that they cannot sell this on whilst its in dispute ( they will, but you need to specifically say so).

Tell, the Snotty one to put what she wants to say in writing only, so you can call her as a hostile witness when this goes to court.

[cadencealex]

They are obviously trying to force you into paying when they have no agreement. So have you sent the harrassment letter to them and the account in dispute letter?

This should also clearly state that they cannot sell this on whilst its in dispute ( they will, but you need to specifically say so).

Tell, the Snotty one to put what she wants to say in writing only, so you can call her as a hostile witness when this goes to court.

 

 

Hi

 

I contacted them to organise a payment schedule. I want the debt paid off, I owe the money

 

She was horrible, but then I suppose they assume that role the minute they converse with a customer

 

Ideally I would like to settle the whole debt.. BUT also I am concerned.. will the default then go from the Satisfied date? And not from the Default date?

[MARTIN3030]

They are in breach of OFT guidelines,Data Protection principles,The Consumer Credit act,and quite likely the Unfair consumer terms regs 2008.......You have every right to be seeking answers and compliance.

You have also disputed the account.

Just be careful that any offers now will allow them to say that the account cannot be considered as being in dispute.In any arrangements or agreements it should be made clear that is your target for resolution and not an agreement in principle.

They should be reminded that to escalate any hostile response whilst you are awaiting them to deal properly with this-only further gives you more scope for recourse.

[cadencealex]

They are in breach of OFT guidelines,Data Protection principles,The Consumer Credit act,and quite likely the Unfair consumer terms regs 2008.......You have every right to be seeking answers and compliance.

You have also disputed the account.

Just be careful that any offers now will allow them to say that the account cannot be considered as being in dispute.In any arrangements or agreements it should be made clear that is your target for resolution and not an agreement in principle.

They should be reminded that to escalate any hostile response whilst you are awaiting them to deal properly with this-only further gives you more scope for recourse.

 

The woman is going to ring me back - I wonder if they record the phone calls.

 

I think I shall just carry on as I was and take the risk - I am not disputing the debt, only them giving me a default. If they had the agreement I could not complain!

 

14 days from now I will do the N1. If they do issue a CCJ, it can be removed immediately if it is paid can't it? (I mean as a result of me issuing court proceedings and losing, not of them trying to get one now, as I know they wont)

[bazaar]

Have you sent an SAR, if youre going to offer payment, you need to take off charges and fees theyve added.

Dont worry about the call, just tell her you want to record the call, My guess is it'll go quiet