Advice needed... no CCA available

[vjohn82]

Right... this is a big debt... roughly £10k but written off by HSBC... ben sold to Robinson Way and they sent me this letter after a 3 month wait...

 

 

 

 

What is the best course of action to take? I have never had this experience before... I've always challenged lenders based upon the prescribed terms... but no documentation at all?

 

I am thinking of the ICO at the moment as there is no data protection compliance without express permission... but someone with experience of this scenario might obviously be able to advise on the best course of action.

 

Thanks in advance

[vjohn82]

Ok... sending this letter to them...

 

Dear Rebecca,

 

I am writing in response to the letter you sent dated 07/05/09 in relation to being unable to provide documentation to prove a debt with your business exists which would be in the form of a consumer credit agreement.

 

You have written;

 

“we will report the current status of the account to the credit reference agencies where appropriate”

 

The principles upon with you are recording information with the credit reference agencies comes under the Data Protection Act 1998; this is the law governing the processing of personal data. Under the law there are a number of conditions under which data can be processed and under schedule 2 of the Act it states:

 

3.1.1 Conditions for Processing

At least one of the following conditions must be met in the case of all processing of personal data (except where a relevant exemption applies):-

The data subject has given his consent to the processing (see paragraph 3.1.5 below).

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.

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

 

Under section 3.1.1 (a) it states the data you share must be in accordance with a contract. You have stated in your correspondence that you do not have a copy of a credit agreement upon which you are relying on to record information with the credit reference agencies. Therefore I believe you are in breach of the Data Protection Act for recording such data which is vexatious and unfounded. This is unless you can provide the legislation upon which you are processing my data at which time I shall seek further clarification from the Information Commissioners Office.

 

Please consider this a formal complaint under the Data Protection Act 1998; under legal guidance it states you have 28 days to respond before an official investigation by the Information Commissioner takes place. Upon the expiry of this deadline I shall also make a report to the Office of Fair Trading who will assess you suitability to hold a credit licence which will cost your business both time and money to comply with. The other option I have is to make a formal representation to the civil courts to make a declaration based upon the non-existence of a contract between ourselves under the Consumer Protection from Unfair Trading Regulations 1999. This again will cost considerable time and financial resources for your company to defend litigation.

 

I want you to stop processing my data with the credit reference agencies and remove my records from your database within the next 28 days before a complaint is made. It is in everyone’s interest to do this as the courts prefer for parties to settle their disputes out of the litigation cycle.

 

Yours sincerely,

 

###############

 

 

[babybear39]

Subscribing with great interest...

[vjohn82]

Ok... have amended the letter after doing some more reading...

 

 

YOUR REF: ################

 

 

FORMAL COMPLAINT UNDER THE FOLLOWING STATUTES:

• DATA PROTECTION ACT 1998
  
• CONSUMER CREDIT ACT 1974
  
• CONSUMER PROTECTION FROM UNFAIR TRADING REGULATIONS 1999
  

 

Dear #########

 

I am writing in response to the letter you sent dated 07/05/09 in relation to being unable to provide documentation to prove a debt with your business exists which would be in the form of a consumer credit agreement.

 

You have written;

 

“we will report the current status of the account to the credit reference agencies where appropriate”

 

The principles upon with you are recording information with the credit reference agencies comes under the Data Protection Act 1998; this is the law governing the processing of personal data. Under the law there are a number of conditions under which data can be processed and, specifically under schedule 2 of the Act it states:

 

3.1.1 Conditions for Processing

At least one of the following conditions must be met in the case of all processing of personal data (except where a relevant exemption applies):-

The data subject has given his consent to the processing (see paragraph 3.1.5 below).

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.

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

Under section 3.1.1 (a) it states the data you share must be in accordance with a contract. You have stated in your correspondence that you do not have a copy of any credit agreement upon which you are relying on to record information with the credit reference agencies. Therefore it is clear there is no permission or legal right for you to register information with any third party. On that basis I believe you are in breach of the Data Protection Act for recording such data which is both vexatious and unfounded. This is unless you can provide the legislation upon which you are processing my data and justify this to the Information Commissioner. This is not an informal request for you to justify your decision making process; under s.10.3 (a) of the Data Protection Act 1998 you have 21 days in which to do this but in order to seek a final resolution to this and so that no time is wasted I shall extend this to 28 days in order to meet the time limit upon which I need to make a complaint to the Information Commissioner. What this means is that I have a right to receive a full and final response by the end of the period before making a formal complaint as outlined above.

 

If you cannot provide a legal and justified reason for processing my data without an enforceable and legal contract then I shall also be seeking compensation for the vexatious and damaging information that you are recording with the credit reference agencies. Upon the expiry of the deadline I shall also make a report to the Office of Fair Trading who will assess you suitability to hold a credit licence which will cost your business both time and money to comply with

 

I would also point out that any compensation claim registered with the ICO will also encompass s.174 of the Consumer Credit Act 1974 which states:

 

174.—(l) No information obtained under or by virtue of this Act about any individual

shall be disclosed without his consent.

 

This enables me to make a representation to the civil courts to make a declaration based upon the non-existence of a contract between ourselves under the Consumer Protection from Unfair Trading Regulations 1999 under the direct contravention of the Consumer Credit Act 1974 s.174 (5) which states:

 

(5) Any person who discloses information in contravention of this section commits an offence.

 

This again will cost considerable time and financial resources for your company to defend litigation. I want you to immediately cease processing my data with the credit reference agencies and remove my records from your databases within the next 28 days before a complaint is made. I am taking this action as I believe you have committed an offence as described under s.174 (5) of the Consumer Credit Act 1974 and contravened the Data Protection principles as governed under the Act.

 

 

Yours sincerely,

 

###########

[clayts]

Also subscribed with great interest - should be an interesting one, this

[vjohn82]

Also subscribed with great interest - should be an interesting one, this

 

 

Indeed... letter should have been received today too so no doubt I should have something in writing soon enough

[babybear39]

Don't hold your breath, they have to find an adult who can understand to read and explain

[militantconsumer]

Go get 'em!

[fiftypence]

I had a similar issue with Lowell, they couldn't come up with as much as an empty envelope that MIGHT have had my application form in. Sent them a snotty email and they said they would remove the default immediately. I haven't checked to see if they were true to their word as yet (this was about 6 months ago)

[madasamuppet]

Just subbing with interest;)

[vjohn82]

Right...

 

Basically had virtually the same letter sent by them. Essentially they acknowledge my letter but cannot find the CCA. On that basis they believe the debt stil exists... but is unenforceable in court.

 

I am sending this back...

 

 

Dear ##########

I am writing in response to the letter you sent dated 14/05/09.

 

Unfortunately you did not respond in a satisfactory manner by not making reference to the section 10 Data Protection Act notice I sent. I must point out that this is a legal requirement on your part (on behalf of Robinson, Way and Company Ltd) to respond to this.

 

I shall reiterate what the notice states:

10. (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.

 

 

Under section 10.4 I can make an application to the court to force you to comply with the order which will also involve me seeking redress for court costs and litigation time. Therefore it is the best interest for you to comply with the notice and write to me by June 3rd 16:00 which satisfies the 21 day notice period as defined in s.10 (3) of the Data Protection Act 1998.

 

If you do not intend to comply with this notice then please state this in your correspondence and please indicate that it is indeed a “final response” in line with your complaints procedure.

 

Yours sincerely,

 

 

#############

 

I am going to stick with the Data Protection Act 1998 s.10 complaint because they will be in default of that soon enough.

 

I am under the impression that without a CCA there is no debt?

 

 

[babybear39]

No the debt still exists but it cannot be enforced in court.

 

Complain to the ICO re lack of CCA and non response to your S.10 notice.

[vjohn82]

No the debt still exists but it cannot be enforced in court.

 

Complain to the ICO re lack of CCA and non response to your S.10 notice.

 

babybear...

 

From my understanding an improperly executed agreement cannot be enforced in court but the debt still exists as a technicality. However, how can a debt exist if there is no credit agreement at all?

 

Similarly, there would be no contractual provision for them to be able to record my data based upon what I know about the Data Protection Act.

 

Therefore do you know on what legal basis they can report to the CRA's?

[babybear39]

That's why I'm advising you to complain to the ICO as no agreement means they have no authority to process your data

[vjohn82]

That's why I'm advising you to complain to the ICO as no agreement means they have no authority to process your data

 

Ok... should I wait until I receive a final response from Robinson and Way or should I just send in a complaint regardless?

[babybear39]

As they have admitted there is no agreement I'd personally complain straight away sending a copy of the letter you received from RW.

[vjohn82]

As they have admitted there is no agreement I'd personally complain straight away sending a copy of the letter you received from RW.

 

I just want to keep on the good side of the ICO... I sent the original s.10 notice on the 11th May... they have not yet complied but also have not ensured it is a final response. I only have to wait a few more days and then I will make a formal complaint to the ICO. I'm basically giving them time to comply with my original request.

 

Thanks for the advice so far... I will keep you updated.

[babybear39]

Sorry, I thought they were out of time * blush*

[vjohn82]

Sorry, I thought they were out of time * blush*

 

No not yet lol... I have given them until 03/06/09 to come up with a resolution... if they haven't by then I will take them to court

[babybear39]

OK Keep us posted.

[flintstones1960]

subbing could be of interest