Invalid Default Notices

[basa48]

inaccurate data - i am not disputing

 

however as far as accurate data is concerned (ie there was an agreement between the creditor and debtor- irrespective of whether it was an enforceable agreement or not) and which would be evidenced usually by lots of transaction information from the creditor and proof of contnuous payments from the debtor in relation to statements sent by the creditor prior to the debtors defaulting of payments- then if the creditor places adverse infiormation at the CRA/s then it is going t be the DEBTOR that starts and action (the creditor is going to sit back and say "bring it on").

 

Thus the burden of proof will be on the debtor.

 

the court will NOT be interested in whether the agreement was properly executed under the consumer credit act- they will be interested only- having listened to and seen the physical evidence from both sides- as to whether on the balance of probabilities- an agreement (lawful or not) existed and that you understood what you had gotten into and what you obligations under it were.

 

And whether the creditor was entitled- as a result of that agreement- to report adverse activity on that account

 

I am suggesting that in 99.99% of cases as reported on this site- the court WILL take the view the debtor knew exactly what they were doing

 

the fact (if indeed that is the case) that for XX years you dutifully paid whatever was displayed on the (very detailed) credit card statements without once (prior to defaulting) questioning this agreement that you now allege was not a proper agreement and in which you did not fully appreciate the terms of- will make it (IMO) very difficult for you to convince the court that you were not aware (legally enforceable agreement or not) what you had entered into was a "credit agreement" or that a "man of normal education" would think it unreasonable (signature or not) for the creditor to report adverse activity to a credit reference agency.

 

the man on the "clapham Omnbibus" would think it reasonable that the creditor would do so- and that a person who believed that they could miss payments and default on an agreement AND by some technicality- not have that information recorded- so that other lenders would not be wrongly influenced in their decisions to lend to him- to be a not very reasonably minded person

 

now the court will turn its attention as to whether the adverse information was accurate (clearly if it was not then that is another matter)

 

If the creditor says you missed 6 monthly payments or defaulted altogether - and recorded that on your file- the court will be totally disinterested in WHY you missed 6 monthly payments or defaulted - it will concern itself only if the report is accurate

 

your argument- in bringing the proceedings would have to be that your credit reputation has been "defamed" by the information that the creditor recorded at the CRA's

 

The creditor will argue that he felt a responsibility towards other prospective lenders to place on record the conduct of your account so that they could make informed lending decisions

 

The creditor will argue that he acted reasonably and responsibly and totally in accord with recent advice from the OFT in persuading lenders not to lend irresponsibly and that accurate reporting of ana ccoun t or agreement was an essential pre requisite to that aim

 

a true fact cannot be a defamation.

 

if there is already lots of adverse credit on your files i would say you probably have a (financial) death wish in starting such an action

 

and if not- well you would face a mountain to climb and as i have said before- if you have deep pockets or feel so strongly about the principle- then go for it- to everyone else i would say - "You must be nuts to even comtemplate it"

 

I do hope the courts don't view complicity of agreements with the CCA in the same way as you argue they will view complicity with the DPA.

 

I.e. if you have consistently used the facility you must be deemed to have agreed to the terms and conditions given with each statement.!!

[Lord_Alcohol]

Surely if there is no agreement, there is no consent to share/use info and therefore there is no legal way they can report. My personal information is my own business unless I specifically tell them they can use it. If they have not got my signature on a page which states this then that's not my problem. What is my problem is when they arbitrarily decide to report anyway with no consent from me.

 

Equally if you have an application (which they have stated is your agreement) where they have specified in the 'use of your info' bit that they will use your data in order to make checks as to your identity etc, but have absolutely nothing there about using it in any other way whatsover, then again they can't use it to do anything else. I have this particular one with the Co-op. Nothing at all to do with use of personal info for recording how you run your account, it's all to do with the application process.

 

How can that be justified?

 

Yes, exactly Lexis.

 

Consent to process data must be given to the data controller. It is a basic principle of DPA.

 

AFAIK, consent is given on the credit agreement/application form. You tick a box and/or sign, showing your consent. If this is missing, then consent has not been provided and the data controller would be quite wrong to process data. He would be in breach of Para 1 Schedule 2 of DPA. I believe that action can be taken by a data subject for any breach of DPA by a data controller.

 

Without consent the OC has no legal entitlement to process data, adverse or not. Also, consent is not implied. It must be freely and unambiguously given.

 

If there is doubt about consent on an application form or contract, I would suggest that the OC is asked when and how consent was given. If you state that you do not believe that any such consent was given, he will have a duty to demonstrate that it was.

 

As for recording payment history, the OC is bound by the principles of accuracy, fairness and lawfulness. If the OC breaches the contract and the debtor withholds payments (ie, there is a dispute) and adverse data is recorded, this may send out the wrong signal to other organisations that use credit scoring. It may not mean that the individual is a high risk. Therefore it is not accurate to record adverse data during a dispute (in my opinion).

 

Additionally, where no agreement exists - the OC has cocked up and formed an agreement that does not comply with CCA - the issue of lawfulness applies.

 

I think that there is general reluctance to remove adverse data or not to process data within the credit industry due to the recent plethora of claims management capers and also the risk of losing an OFT credit licence if accused of irresponsible lending. I think OCs take the safe route, and record adverse data at the drop of a hat, irrespective of any other factor.

 

Just my take on things.

 

LA

 

PS: anyone else loathe this new front-end?

[lexis200]

the court will NOT be interested in whether the agreement was properly executed under the consumer credit act- they will be interested only- having listened to and seen the physical evidence from both sides- as to whether on the balance of probabilities- an agreement (lawful or not) existed and that you understood what you had gotten into and what you obligations under it were.

 

And whether the creditor was entitled- as a result of that agreement- to report adverse activity on that account

 

 

DD, this is a question/comment so I hope it comes across as that and not as a belligerent reply- I'll get that in now just in case it comes across wrong (it's very difficult to write how you mean things to sound!)

 

How does the above gel with my app form from the Co-op? With that, I have what is definitely an application form (no pt's), but what they are calling an (enforceable) agreement. If they took that to court to show that I had agreed to the account and the ensuing markers should they be needed, they'd have a very hard time as there is nothing on that form relating to using my data after the application process.

 

I have to say I've not seen it on any of my other apps/agreements - if there's one thing they always seem to get right it's the consent to use your data bit - but on this one the form I have signed at no point anywhere says that they will use my data for anything other than establishing my address and identity.

 

If I then go by what you said in the bit highlighted above, I can clearly show that I did understand my obligations and that those obligations did not say anything about my info being used.

 

Obviously they can then show that I did have the money and I was, until I hit problems in my life, paying it back every month. What they can't show is 'whether the creditor was entitled- as a result of that agreement- to report adverse activity on that account'.

 

Personally I'm not likely to go for default removals so it's not something I would need to be arguing the toss about in court, but I'm still at a loss to see why it follows that they would be allowed to show on the balance of probabilities that money had been lent, which in turn means ergo markers can be placed. They are two different things:confused:

 

Maybe I've muddled myself up with the DPA and what it requires, but disregarding enforceability or creditors simply reporting how your account has been run, I was under the impression that in order for creditors to release person/financial data about you to a third party that they required your consent. Have I got this very wrong? If so, why are we on most apps/agreements specifically pointed to the 'use of info' bit - often as I mentioned before having to also tick to say we've read and understood that particular part?

 

edit - just to say I've not read any posts further than DD's yet (had to type whilst my mind was on it:D), so if I've covered ground that's been gone over already, sorry!

[lexis200]

Yes, exactly Lexis.

 

Consent to process data must be given to the data controller. It is a basic principle of DPA. Ah, that'll be the answer to my question in my last post then - thanks.

 

AFAIK, consent is given on the credit agreement/application form. You tick a box and/or sign, showing your consent. If this is missing, then consent has not been provided and the data controller would be quite wrong to process data. He would be in breach of Para 1 Schedule 2 of DPA. I believe that action can be taken by a data subject for any breach of DPA by a data controller.That was what I thought, which is why I was querying why simply proving that a debt had been accrued meant that they had automatic rights to assume you had consented to your data being used.

 

Without consent the OC has no legal entitlement to process data, adverse or not. Also, consent is not implied. It must be freely and unambiguously given.

 

If there is doubt about consent on an application form or contract, I would suggest that the OC is asked when and how consent was given. If you state that you do not believe that any such consent was given, he will have a duty to demonstrate that it was.

 

As for recording payment history, the OC is bound by the principles of accuracy, fairness and lawfulness. If the OC breaches the contract and the debtor withholds payments (ie, there is a dispute) and adverse data is recorded, this may send out the wrong signal to other organisations that use credit scoring. It may not mean that the individual is a high risk. Therefore it is not accurate to record adverse data during a dispute (in my opinion).

 

Additionally, where no agreement exists - the OC has cocked up and formed an agreement that does not comply with CCA - the issue of lawfulness applies.

 

I think that there is general reluctance to remove adverse data or not to process data within the credit industry due to the recent plethora of claims management capers and also the risk of losing an OFT credit licence if accused of irresponsible lending. I think OCs take the safe route, and record adverse data at the drop of a hat, irrespective of any other factor.It does also seem to be their weapon of choice if all other avenues have been closed to them - a case of if they can't collect money then regardless of if they have your permission or not they will simply ruin your rating. It may be a justified marker, but if they're not allowed to place it then that should be the end of it - tough luck banks.

 

Just my take on things.

 

LA

 

PS: anyone else loathe this new front-end?Yes:)

 

Lexis

[stunned_monkey]

 

as for recording payment history, the oc is bound by the principles of accuracy, fairness and lawfulness. If the oc breaches the contract and the debtor withholds payments (ie, there is a dispute) and adverse data is recorded, [snip] it may not mean that the individual is a high risk. Therefore it is not accurate to record adverse data during a dispute (in my opinion).

 

well put!

[Wilma Shoozfit]

 

As for recording payment history, the OC is bound by the principles of accuracy, fairness and lawfulness. If the OC breaches the contract and the debtor withholds payments (ie, there is a dispute) and adverse data is recorded, this may send out the wrong signal to other organisations that use credit scoring. It may not mean that the individual is a high risk. Therefore it is not accurate to record adverse data during a dispute (in my opinion).

 

 

Here, here!

 

As in my case I was able to substantiate my dispute, with the OC's own data logs - there could be no denying that they had made a blunder, but rather than address and correct their error they chose to ignore my letters and close the account. I did a printout of the unrecorded check they did on my credit file when they did this, so they were fully aware of that theirs was and still is the only adverse input.

 

Senseless!

 

Cheers

Wils

 

 

Wils

[diddydicky]

If there is doubt about consent on an application form or contract, I would suggest that the OC is asked when and how consent was given. If you state that you do not believe that any such consent was given, he will have a duty to demonstrate that it was.

 

 

with respect LA this statement misses the point!

 

the fact of the matter is that the creditor WILL mark your files and far from him having a "duty to demonstrate" that it was- it will be up to you- as the claimant- to prove your claim

 

firstly you will need to establish what your court claim would be-- i can see no other basis for a court claim other than defamation(of your creditworthiness) - it will then be for YOU firstly to show what losses have resulted from the alleged defamation and then to prove YOUR case- not the defendant!!

 

all i am saying is that folk should not undertake this excercise lightly as it is going to prove ultra expensive!!

[diddydicky]

DD, this is a question/comment so I hope it comes across as that and not as a belligerent reply- I'll get that in now just in case it comes across wrong (it's very difficult to write how you mean things to sound!)

 

How does the above gel with my app form from the Co-op? With that, I have what is definitely an application form (no pt's), but what they are calling an (enforceable) agreement. If they took that to court to show that I had agreed to the account and the ensuing markers should they be needed, they'd have a very hard time as there is nothing on that form relating to using my data after the application process.

 

I have to say I've not seen it on any of my other apps/agreements - if there's one thing they always seem to get right it's the consent to use your data bit - but on this one the form I have signed at no point anywhere says that they will use my data for anything other than establishing my address and identity.

 

If I then go by what you said in the bit highlighted above, I can clearly show that I did understand my obligations and that those obligations did not say anything about my info being used.

 

Obviously they can then show that I did have the money and I was, until I hit problems in my life, paying it back every month. What they can't show is 'whether the creditor was entitled- as a result of that agreement- to report adverse activity on that account'.

 

Personally I'm not likely to go for default removals so it's not something I would need to be arguing the toss about in court, but I'm still at a loss to see why it follows that they would be allowed to show on the balance of probabilities that money had been lent, which in turn means ergo markers can be placed. They are two different things:confused:

 

Maybe I've muddled myself up with the DPA and what it requires, but disregarding enforceability or creditors simply reporting how your account has been run, I was under the impression that in order for creditors to release person/financial data about you to a third party that they required your consent. Have I got this very wrong? If so, why are we on most apps/agreements specifically pointed to the 'use of info' bit - often as I mentioned before having to also tick to say we've read and understood that particular part?

 

edit - just to say I've not read any posts further than DD's yet (had to type whilst my mind was on it:D), so if I've covered ground that's been gone over already, sorry!

 

well firstly lets remember that i do not claim to be any sort of legal expert-

 

ok lets look at the law of defamation in general (as far as i know it)

 

anyone can say anything about anyone else without fear of litigation PROVIDED it is true

 

therefore i can put an ad in the times and say for instance that lexis 200 had an agreement with fred blogs credit to use their credit card and that she defaulted on 6 payments and then the defaulted on the account

 

I take the risk, in making the statement- that i could be proved WRONG and that you didn't miss 6 payments and then default.- but if i am right then the truth is sufficient to prevent lexis 200 from alleging that what i have said is defamatory.

 

Lexis 200 could say " the reason i missed 6 payments is because i was in dispute with the creditor who didnt have a legally enforceable agreement / i found out after 4 years of thinking that he had my permission to process data that in fact he did not /didnt like his make up/wet the bed every month/ etc............and it whilst it may be an EXPLANATION as to why the 6 payments were missed and the account defaulted- it does not make the statement any less true.

 

therefore, if you take me to court- what is it that you are going to base your claim upon? did my comments cause you loss? did they harm your reputation? - well if it did- you will need to prove that it was my statement about you caused that loss/harm your reputation- and that what i said was untrue

 

which means you are back to square one and will have to prove that what I said was untrue

 

defamation/libel cases do not attract any form of legal aid- they can be notoriously expensive and financially ruin the unwary

 

I am not "batting for the other side" - i just feel that such an action has the potential to financially ruin a LIP (even if they were to win) and that the risk is not worth running- creditors know this too which is why they WILL mark your files and tell you to put up or shut up

 

this leaves only complaints to the ICO - OFT and again- i am 100% sure that at the end of the day- unless- as has been stated elsewhere the debt referred to is genuinely not your debt- anyone who has been paying their credit card/loan agreement for a number of years and is only now throwing up the legality of the agreement after already getting into arrears and /or defaulting - is going to get short shrift from either the ICO or OFT and they will ultimately (and rightly in my view) take the view that irrespective of the fact that the agreement may be unenforceable and/or that your signature giving consent to information is missing or whatever- that the reports to the CRA files are (if indeed they are) an accurate statement of FACT and that no adverse consequences have befallen you as a result of the information being recorded at the CRA

 

 

i make it ABSOLUTELY clear that i am and have been talking here of borrowers who have been engaged in the arrangement for several years and only now are in arrears/dispute over the agreement and who, IMO are wrongly believing that because the creditor does not now have the signed agreement- that the adverse can be removed

 

If all else failed the judge would fall back on the fact that the creditor IS NOT OBLIGED to produce the signed original agreement-as is often wrongly thought by caggers-in order to win his case- and that all he needs to do is show- on the balance of probabilities is that an agreement "WAS" signed at some point in the past by the debtor . (which is what the CCA says)

 

( a court has already held that a creditor who lost many records in a fire could still enforce the now absent signed agreements- based on the fact that he could show- from other records that on the balance of probabilities- the individual debtors "DID" (past tense) sign an agreement- even if the creditor could not now produce it

 

i am sure that records of spending and repayments would have gone a long way towards that argument

 

The added weight of evidence to show that you used the facility over a number of years/paid the amounts notified to you on the monthly statements for years etc would all combine to leave the judge with no other conclusion to reach than that you knew perfectly well what you were doing and are being "speculative".

 

I think it better that i now say no more on the subject

 

my aim is to HELP caggers-= and in this respect that help was to hopefully pursuade them that litigation in such circumstances is, on balance more likely to be detrimental to them than otherwise

 

you can only lead a horse to water- it is up to the horse if he wants to drink

Edited August 16, 2010 by diddydicky

[Bill Shidding]

In the light of the recent judgments given against the borrowers (as the claimant), I feel that the courts are no longer sitting on the fence, but are sun-lounging on the creditors patio drinking pimms.

 

An adverse CRA file is generally only a problem if "the person" is/or will be seeking further credit. Speaking from an entirely personal perspective, I couldn't care less how the creditors molest a file that will be erased after 6 years. After all, I don't plan on being a slave to a bank again.

 

Wilma, ICO guidance states that a default "should" be registered within 6 months of the actual default date. Unless there is a good reason for a delay.

Edited August 16, 2010 by Bill Shidding

[Wilma Shoozfit]

DD as always you provide sound, sensible advice.

 

Although I beleive that I have a case against the OC, I am not prepared to go running out into the sunset with an N1 or whatever in my grubby little mitt.

 

I am still awaiting response from the ICO who have been sent copies of letters, spreadsheets and anything else I could fire at them to support my complaint. I have sent them a reminder as they've had this since Novemebr last year.

 

The outcome of that will determine my next move and whether or not to approach my insurers to see if they will cover any claim under S13 of the DPA. I know I have this cover - but whether I can build a solid case would be down to some-one with a lot more knowledge and expertise in this area than me.

 

In the meantime I collate all my papers just in case the OC decide to take action in the court and I need to defend and look to any counterclaim.

 

I know my own limitations and I personally would flounder in a court no matter how good my case, when facing an opposition Barrister, and I agree that Court action is not something that should be entered into lightly - costs can be the straw that breaks the camels back.

 

After a while, it's easy to lose focus on the bigger picture because you build up your own mindset of your circumstances and forget to look for the pitfalls.

 

Like I said earlier - the more I read the less I know - and a little knowledge can be a dangerous and costly thing.

 

Cheers

 

Wils

[underdog13]

In the light of the recent judgments given against the borrowers (as the claimant), I feel that the courts are no longer sitting on the fence, but are sun-lounging on the creditors patio drinking pimms.

 

 

Completely agree, not just for debtors as claimants, but also as defendants. Just been told by sol to roll over and accept the whole debt plus the cred's costs, plus my 'no win no fee' solicitors costs, plus barrister's costs. Has doubled the debt and will ruin me; but hey, the barstewards get their costs, so what the hell! All because of the Carey judgement, apparently - feel stupid for even trying to fight: Even more stupid for trusting lawyers.

[means2anend]

I have never signed an agreement. End of story. They have produced a copy of an 'agreement' with no details and no signature. Every time I asked them where was my signed agreement they failed to produce one, moreover, I do not remember signing an agreement, nor ever seeing one before recently. They have simply 'mucked it up' big time in my case. I could say they have no signed agreement, it makes no difference. The thing is, they have a printout with someone's name (not exactly mine) on it, and no signature. I am not saying they lost the agreement, they simply never had it.

 

Quite simply

 

If you HAVE NOT signed an agreement AND NEVER had an agreement or an ACCOUNT then the fact that they can send you a copy without the signature under the Copies of documents and Cancellation of Notices Regs 1983 is irrelevant that wont help them...THE ISSUE is whether you EXECUTED an agreement and HAD AN ACCOUNT in the first place...

 

This situation is different from a situation in which one HAS signed an Executed agreement and is merely asking for a copy of it under s77/78 in this case a signature is not necessary in accordance with the above Regs...because an aCCOUNT existed at some time in the past.

 

BUT...you say you NEVER EXECUTED an agreement AND NEVER HAD AN account in the first place..totally different set of circumstances..

 

For the creditors to send you a reconstructed copy without a signature in accordance with the above Regs is not going to help their case.They have to SHOW first that an agreement was in place or THAT YOU HAD AN ACCOUNT...and this is where DD has explained that they can show this to be the case from 'transactions, withdrawals and the like..

 

BUT if they cannot show this..which I suspect is your situation then a simple denial from you that an agreement signed or unsigned was EVER MADE IN THE FIRST PLACE is an entirely different argument...so in that sense you make sense!!!

 

m2ae

Edited August 16, 2010 by means2anend
denail to denial

[Wilma Shoozfit]

I

 

Wilma, ICO guidance states that a default "should" be registered within 6 months of the actual default date. Unless there is a good reason for a delay.

 

Thanks for that I've looked on the ICO site but couldn't find anythin - wood 'n trees spring to mind:)

 

Wils

[Wilma Shoozfit]

Completely agree, not just for debtors as claimants, but also as defendants. Just been told by sol to roll over and accept the whole debt plus the cred's costs, plus my 'no win no fee' solicitors costs, plus barrister's costs. Has doubled the debt and will ruin me; but hey, the barstewards get their costs, so what the hell! All because of the Carey judgement, apparently - feel stupid for even trying to fight: Even more stupid for trusting lawyers.

 

Really really sorry to hear this!

 

Take care

 

Wils

[lexis200]

well firstly lets remember that i do not claim to be any sort of legal expert-

 

ok lets look at the law of defamation in general (as far as i know it)

 

anyone can say anything about anyone else without fear of litigation PROVIDED it is true

 

therefore i can put an ad in the times and say for instance that lexis 200 had an agreement with fred blogs credit to use their credit card and that she defaulted on 6 payments and then the defaulted on the account

 

I take the risk, in making the statement- that i could be proved WRONG and that you didn't miss 6 payments and then default.- but if i am right then the truth is sufficient to prevent lexis 200 from alleging that what i have said is defamatory.

 

Lexis 200 could say " the reason i missed 6 payments is because i was in dispute with the creditor who didnt have a legally enforceable agreement / i found out after 4 years of thinking that he had my permission to process data that in fact he did not /didnt like his make up/wet the bed every month/ etc............and it whilst it may be an EXPLANATION as to why the 6 payments were missed and the account defaulted- it does not make the statement any less true.

 

therefore, if you take me to court- what is it that you are going to base your claim upon? did my comments cause you loss? did they harm your reputation? - well if it did- you will need to prove that it was my statement about you caused that loss/harm your reputation- and that what i said was untrue

 

which means you are back to square one and will have to prove that what I said was untrue

 

defamation/libel cases do not attract any form of legal aid- they can be notoriously expensive and financially ruin the unwary

 

I am not "batting for the other side" - i just feel that such an action has the potential to financially ruin a LIP (even if they were to win) and that the risk is not worth running- creditors know this too which is why they WILL mark your files and tell you to put up or shut up

 

this leaves only complaints to the ICO - OFT and again- i am 100% sure that at the end of the day- unless- as has been stated elsewhere the debt referred to is genuinely not your debt- anyone who has been paying their credit card/loan agreement for a number of years and is only now throwing up the legality of the agreement after already getting into arrears and /or defaulting - is going to get short shrift from either the ICO or OFT and they will ultimately (and rightly in my view) take the view that irrespective of the fact that the agreement may be unenforceable and/or that your signature giving consent to information is missing or whatever- that the reports to the CRA files are (if indeed they are) an accurate statement of FACT and that no adverse consequences have befallen you as a result of the information being recorded at the CRA

 

 

i make it ABSOLUTELY clear that i am and have been talking here of borrowers who have been engaged in the arrangement for several years and only now are in arrears/dispute over the agreement and who, IMO are wrongly believing that because the creditor does not now have the signed agreement- that the adverse can be removed

 

If all else failed the judge would fall back on the fact that the creditor IS NOT OBLIGED to produce the signed original agreement-as is often wrongly thought by caggers-in order to win his case- and that all he needs to do is show- on the balance of probabilities is that an agreement "WAS" signed at some point in the past by the debtor . (which is what the CCA says)

 

( a court has already held that a creditor who lost many records in a fire could still enforce the now absent signed agreements- based on the fact that he could show- from other records that on the balance of probabilities- the individual debtors "DID" (past tense) sign an agreement- even if the creditor could not now produce it

 

i am sure that records of spending and repayments would have gone a long way towards that argument

 

The added weight of evidence to show that you used the facility over a number of years/paid the amounts notified to you on the monthly statements for years etc would all combine to leave the judge with no other conclusion to reach than that you knew perfectly well what you were doing and are being "speculative".

 

I think it better that i now say no more on the subject

 

my aim is to HELP caggers-= and in this respect that help was to hopefully pursuade them that litigation in such circumstances is, on balance more likely to be detrimental to them than otherwise

 

you can only lead a horse to water- it is up to the horse if he wants to drink

 

Ok, so am I right in reading this as you saying that despite processing data without consent being in contravention of the DPA, there is nothing that could be done other than a complaint to the ICO?

 

As I said, I'm not looking to do anything about this court-wise, but would they (the creditors) seriously not have to answer to someone for ignoring the DPA? This is what I can't get my head round - whether or not I knew what I was doing etc, are they legally allowed to get away with ignoring the Act?

 

I don't know why I shouldn't believe it tbh considering the other stuff they get away with, but this just seems like one more insult. Are there any rules and regulations that they do get in to difficulties for riding over completely???

[middenmess]

Completely agree, not just for debtors as claimants, but also as defendants. Just been told by sol to roll over and accept the whole debt plus the cred's costs, plus my 'no win no fee' solicitors costs, plus barrister's costs. Has doubled the debt and will ruin me; but hey, the barstewards get their costs, so what the hell! All because of the Carey judgement, apparently - feel stupid for even trying to fight: Even more stupid for trusting lawyers.

 

No win no fee--means I thought no win no fee?

 

I'd want to be advised by my barrister that the situation was helpless,rather than from your solicitor!

[underdog13]

Really really sorry to hear this!

 

Take care

 

Wils

Thanks, Wils

[underdog13]

No win no fee--means I thought no win no fee?

 

I'd want to be advised by my barrister that the situation was helpless,rather than from your solicitor!

 

Barrister is very pessimistic in light of the Carey judgement; which has spooked the sols. I thought no win no fee meant just that too - apparently not!

 

Looking at going this alone now - guess I should have done that in the first place! A salutary warning to everybody!

[lexis200]

That's awful UD:(

[basa48]

well firstly lets remember that i do not claim to be any sort of legal expert-

 

ok lets look at the law of defamation in general (as far as i know it)

 

 

Why are we discussing defamation?

 

RICHARD DURKIN Pursuer

 

against

 

DSG RETAIL LIMITED and HFC BANK PLC Defenders

 

115. The case of King v British Linen & Co dealt with the situation where there had been no specific damage. The only loss which the pursuer had occurred sustained was the loss to his credit standing. That was valued by the sheriff at £100 in 1897, a figure which was not interfered with in the Inner House. It is clear that the reason that the Inner House did not consider it appropriate to interfere with it was because they were dealing with a case where, in the words of Lord Kinnear, "No exact measure" of damages could be fixed. The case is clear authority to the effect that award of damages can be made for simple injury to credit although no actual loss is sustained. It is not, in my opinion, authority for the proposition where injury to credit causes actual loss or damage the fact of the injury itself warrants an award over and above the actual losses.

 

117. Had there been no finding of specific loss in this case, I would have had no hesitation in finding that an award of damages for the mere injury to credit was appropriate. In modern society credit plays a very big part in the conduct of the daily lives of a significant portion of the population. The financial services industry is constantly advertising loans, credit cards, store cards, mortgages, consolidation accounts etc. To have one's credit worthiness impugned so that one is at risk of being unable to obtain credit on the grounds that he is not credit worthy is, if anything, a more significant matter for the individual than it would have been at the time of King, over a hundred years ago. Mr Beynon has submitted that a figure of £10,000 would be appropriate. The figure of £100 awarded by the sheriff and left standing by the Inner House in King v British Linen translates, according to the Office of National Statistics Publication "Focus on consumer price indices" 2008, table 5/3, to £9,975 in the year 2008. The figure of £5,500 awarded to an individual in Kpohraror v Woolwich Building Society 1996 4All ER 119 was not interfered with by the Court of Appeal in 1996 and, in today's figures, would be worth £8,215.

 

118. Kpohraror confirmed that such damages were available to individuals who were not traders. In that case a cheque was dishonoured and then the matter put right within 24 hours. Also in that case the plaintiff claimed both special damages and the general damages of £5,500. Lord Justice Evans said at page 124 "The credit rating of individuals is as important for their personal transactions, including mortgages and hire purchase as well as banking facilities, as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in holding that what is in effect a presumption of some damage arises in every case in so far as this is a presumption of fact."

[diddydicky]

Ok, so am I right in reading this as you saying that despite processing data without consent being in contravention of the DPA, there is nothing that could be done other than a complaint to the ICO?

[color="red"

As I said, I'm not looking to do anything about this court-wise, but would they (the creditors) seriously not have to answer to someone for ignoring the DPA? This is what I can't get my head round - whether or not I knew what I was doing etc, are they legally allowed to get away with ignoring the Act?

 

 

 

I don't know why I shouldn't believe it tbh considering the other stuff they get away with, but this just seems like one more insult. Are there any rules and regulations that they do get in to difficulties for riding over completely???

 

 

In answer to your first queery- what i was saying was that it is not impossible for you to challenge their actions- but that your head needs to firmly rule your heart in any decision to do so- for the consequences can be serious and the odds would be stacked against you (IMO)

 

I agree that it would be grossly unfair- in a situation where there has never been a valid credit agreement and the creditor cannot win in court- that he should then "out of spite" muck up your credit rating.

 

however, i personally believe that this rarely happens and when it does - yes it should be complained of/perhaps even contested

 

it is my own opinion that in 99% of cases (that i see on this forum) that it is evident that a debtor HAS at some time entered into an agreement and has given permission to process data

 

the vast majority of us got into difficulties with repayments BEFORE we went looking on sites like this to find a solution and are beneffiting from creditors being stupid enough to destroy original documents or lose them (for whatever reason) and those individuals that have genuinely been "stiched up" by a creditor in any other circumstances can be counted on two hands probably-

 

These cock ups by the creditors are what has led to many of us getting a decision that the debt is legally unenforceable-( some then wrongly assume - on the back of one specific case- that the general rule is that the debt is then "wiped out" or was "a gift" )

 

Some people then take things further- whilst they are "on a roll" and seek to "extract the urine" by then seeking to have their credit records show a totally misleading picture of their creditworthiness and to accuse the creditor of acting maliciously in recording the default of the agreement

 

for myself. it is enough that i have managed to get the agreement ruled legally unenforceable- that way i can negotiate with the creditor from a position of strength and not weakness as to settlement of the matter

 

those that have- as i have said- gone along with the agreement for years and then are not satisfied with taking advantage of the creditors misfortunes and getting the debt ruled unenforceable (which lets face it- even though the debt still exists- is- to all intents and purposes a "let off"- if the debtor then decides to stick two fingers up to the creditor)- and instead get on some moral "high horse" about data protection issues- when they know perfectly well that they would have given that permission at the outset , not only do themselves a disservice but will turn the judiciary against LIP's in general as they(the judges) then seek to get around the abuse by finding other ways to uphold the claimants position.

 

there is not one man jack on this forum (IMO) who - having applied for a loan or credit card- that would have then declined the loan or credit- on a moral stance of not allowing their data to be shared with a CRA.

 

i rest my case

Edited August 16, 2010 by diddydicky

[dx100uk]

good post

 

likewise

 

dx

[Gallahad]

Great post DD concise and very well thought through

G

[middenmess]

Well put DD.

 

 

He that has satisfied his thirst turns his back on the well.

 

Baltasar Gracian

[underdog13]

That's awful UD:(

Thanks,Lexis. Bit off topic, I know, but would advise anyone wishing to have representation to secure the services of a direct access barrister and not a so called 'no win, no fee' solicitor - all they are interested in is screwing you for their own costs.