Dissecting the Manchester Test Case....

[diddydicky]

Broadly agree with 99% of what you've put DD.

 

...However above doesnt fully tally with the ICO guidance on issuing defaults where a default can be marked even without prior warning to a debtor, as has happened in my case, no default notice given but a nice big red default sits on my credit file not that I'm in the slightest bothered about it.

 

S.

 

 

thanks obviously the lack of prior warning is s separate issue

[diddydicky]

Broadly agree with 99% of what you've put DD.

 

...However above doesnt fully tally with the ICO guidance on issuing defaults where a default can be marked even without prior warning to a debtor, as has happened in my case, no default notice given but a nice big red default sits on my credit file not that I'm in the slightest bothered about it.

 

S.

 

 

99% is bloody good- i'll quit whilst i am ahead:D

[means2anend]

Well I must say I have enjoyed the analysis that all of you LA, DD and The Shadow have contributed in the last few posts...

 

But I got rid of DN off my mate's credit files purely on the basis of non compliance with s78

 

It does depend on how one presents their argument obviously and the stage one is at in one's own situation...

 

But I rest my case and Post 2911 on thread 'invalid default notices' proves it.

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/196312-invalid-default-notices.html

 

..so DD whilst I am always interested in your perspectives there are always countervailing perspectives and it is as LA put it..... good to thrash out the issues...

 

Great discussion!!!

 

m2ae

[diddydicky]

i apologise if i have read your thread incorrectly- but it would appear to me that what you acheived is for the other party to voluntarily remove the adverse information from the cra files

 

if so (and well done) that is, with respect not the same as persuading a court to do so which is what i understood the debate to be about

[Lord_Alcohol]

Well I must say I have enjoyed the analysis that all of you LA, DD and The Shadow have contributed in the last few posts...

 

But I got rid of DN off my mate's credit files purely on the basis of non compliance with s78

 

It does depend on how one presents their argument obviously and the stage one is at in one's own situation...

 

But I rest my case and Post 2911 on thread 'invalid default notices' proves it.

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/196312-invalid-default-notices.html

 

..so DD whilst I am always interested in your perspectives there are always countervailing perspectives and it is as LA put it..... good to thrash out the issues...

 

Great discussion!!!

 

m2ae

 

m2ae

 

Could you summarise how you did this? Been digging around the invalid DN thread but can't build up an accurate picture - it's got too big!

 

I did see one post of yours that suggested that absence of a lawful agreement effectively removes consent for data processing - is that the key to this?

 

Cheers

LA

Edited June 20, 2010 by Lord_Alcohol
Early morning typos

[means2anend]

m2ae

 

Could you summarise how you did this? Been digging around the invalid DN thread but can't build up an accurate picture - it's got too big!

 

I did see one post of yours that suggested that absence of a lawful agreement effectively removes consent for data processing - is that the key to this?

 

Cheers

LA

 

LA...the post is 2911 on PAGE 146 of the ''invalid default notices'' thread

 

It was a combination first of completing the reading of Surlybonds thread and tweaking it to apply to my colleagues situation as it stood at the time...The actual letter that I wrote after factoring in principles from thread and relevance as to the fact that there had been no copy received under s78 request.

 

Give me some time and I will post up my actual letters that I sent...but in the meanwhile if you have not already got the link

 

here it is;

 

http://consumeractiongroup.co.uk/forum/legalities/24013-defaults-proposed-method-removal.html

 

rgds

 

m2ae

Edited June 20, 2010 by means2anend

[bustthematrix]

irrespective of the existence of a properly executed agreement- there is usually no doubt or dispute in the vast majority of cases that the creditor can easily prove that monies were borrowed and used by the debtor so that a contract- albiet not a properly executed one- existed between the parties

Hi DD

 

Your point here is well made for the lenders 'rights', and I believe it is the same one I have heard you repeat a few times on numerous threads.

 

The reality of the law though is different. The CCA is quite clear in that the agreement is enacted under the CCA, not simply common law and common sense etc. This was the reasoning of the Lords' in Wilson when they raised the spectre of the implications of unenforceability, such as the receipt of a windfall AND the retaining of any lodged security. Both of those outcomes would be considered by most people with 'common sense' as unreasonable for the lenders. But not under the CCA and not when the prescriptions are clear and money is to be lent under it's strict terms. That's the way it goes and it bites equally for the Lender and the Debtor.

 

CRAs and accuracy of information are actually mentioned in the CCA itself, but not robustly. I stand by the principle that CRA records should be removed whenever there is uncertainty which the recording party cannot conclusively verify. It's that simple really.

 

Though I suspect many will not want to press a court to order removal of CRA records, I imagine few lenders will defend should such an action ever be brought with a well particularised claim. I guess we won't know until such attempts are made.

 

One good sign is that we in the UK are not alone in this plight. It is factual that in the US, people have had considerable success with CRA records being removed when there have been issues with proof of debt and accuracy of data.

 

Remember that the burden of proof and responsibility for accuracy rests on the recorder of the information not the subject.

 

Lenders can try and hide under common law all they want. The point is, where they've messed up, they should put up and shut up.

[bustthematrix]

THIS was debated at great length in 2006 and as a result:

 

Our Ref: WM/BS/Information Commissioners Office – England 090306

:

:

Margaret Humphreys

Policy Officer – Consumer Credit

LACORS

email: [email protected]

direct line: 020 7840 7213

Thanks for this humbleman. Clear indication that it's not non-sensical to ask for CRA records to be removed where appropriate.

[Lord_Alcohol]

Thanks for this humbleman. Clear indication that it's not non-sensical to ask for CRA records to be removed where appropriate.

 

I agree BTM and Hman - DPA is very clear in that it says records must be processed and recorded "fairly and lawfully". Who is to say that this is the case when an agreement is in dispute (or lost)?

 

DD is right though to raise the questions of how this would be viewed in court, but my understanding is that, where there is any doubt about lawfullness or accuracy, then the data must be removed or modified - this is one of the core duties of the CRA's and also of the ICO in policing the DP regime.

 

So I would still press the CRAs and ICO under Principle 1 of the DPA and I think this is perfectly reasonable.

 

Where CRAs refuse or ICO supports the CRA/OC, then I think they need to provide the proof that they have acted "fairly and lawfully". I simply do not see this happening if they continue to process adverse data where an agreement is in dispute - doing so has the effect of dissuading the debtor from taking action that he is entitled to (eg, where the OC has breached the contract).

 

LA

[bustthematrix]

I simply do not see this happening if they continue to process adverse data where an agreement is in dispute - doing so has the effect of dissuading the debtor from taking action that he is entitled to (eg, where the OC has breached the contract).

 

LA

Boy, don't we half concur!

 

There's also the issue of ongoing damage to the debtor's profile and the implications that has. It's not just access to credit that adverse data restricts, in some cases it is career sensitive and becoming increasingly more so.

 

As the data becomes more widely used and relied upon, it is even more essential that whatever is stated there is completely accurate.

[bustthematrix]

Where CRAs refuse or ICO supports the CRA/OC, then I think they need to provide the proof that they have acted "fairly and lawfully".

Good point. It's easy enough for them to assert. Proving it is a different matter.

[diddydicky]

Hi DD

 

Your point here is well made for the lenders 'rights', and I believe it is the same one I have heard you repeat a few times on numerous threads.

 

The reality of the law though is different. The CCA is quite clear in that the agreement is enacted under the CCA, not simply common law and common sense etc. This was the reasoning of the Lords' in Wilson when they raised the spectre of the implications of unenforceability, such as the receipt of a windfall AND the retaining of any lodged security. Both of those outcomes would be considered by most people with 'common sense' as unreasonable for the lenders. But not under the CCA and not when the prescriptions are clear and money is to be lent under it's strict terms. That's the way it goes and it bites equally for the Lender and the Debtor.

 

CRAs and accuracy of information are actually mentioned in the CCA itself, but not robustly. I stand by the principle that CRA records should be removed whenever there is uncertainty which the recording party cannot conclusively verify. It's that simple really.

 

Though I suspect many will not want to press a court to order removal of CRA records, I imagine few lenders will defend should such an action ever be brought with a well particularised claim. I guess we won't know until such attempts are made.

 

One good sign is that we in the UK are not alone in this plight. It is factual that in the US, people have had considerable success with CRA records being removed when there have been issues with proof of debt and accuracy of data.

 

Remember that the burden of proof and responsibility for accuracy rests on the recorder of the information not the subject.

 

Lenders can try and hide under common law all they want. The point is, where they've messed up, they should put up and shut up.

 

 

i understand the points you make, however, when a court declares or finds a CCA agreement unenforceable or iredeemably unenforceable- the debt remains

 

it simply means that the creditor has no means of enforcement through the courts

 

he is staill able to send demands and to report your conduct of the account to a CRA

 

if the suggestion that i have made the point on several threads "on behalf of the creditors" is meant to be a suggestion that perhaps i am "on the other bus" then by all means take it as that, otherwise read the footnote to my posts!

 

i do not understand the context in reference to put up or shut up

 

this is normally a suggestion to a creditor to either take action or not take action

 

bit clint eastwood if you see what i mean

[Lord_Alcohol]

I would suggest that, if an agreement has been declared (or shown to be) unenforceable then that means it has been unlawfully executed for any number of different reasons, and I believe there can be many.

 

In some cases the unlawful execution may be based on some gross abuse by the OC of CCA.

 

Should the OC then continue to process data as though a lawful agreement continued, then I believe that s140A comes to the rescue;

 

(1) The court may make an order under section 140B in connection with a credit agreement if it determines that the relationship between the creditor and the debtor arising out of the agreement (or the agreement taken with any related agreement) is unfair to the debtor because of one or more of the following—

(a) any of the terms of the agreement or of any related agreement;

(b) the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement;

© any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement).

 

It might be argued that the OC merely pretends that a lawful agreement exists (when it may not), and he should therefore have no reason to process data. Similarly, any data already processed under such a pretence should, I think, be deleted.

 

S140 is not just about enforcement of a debt. An entire agreement can be binned in one fell swoop.

 

LA

[bustthematrix]

Hi DD, my comments below

 

i understand the points you make, however, when a court declares or finds a CCA agreement unenforceable or iredeemably unenforceable- the debt remains

I agree, somewhat

 

it simply means that the creditor has no means of enforcement through the courts

agree. 'the courts' should read as in law, don't you think?

 

he is staill able to send demands and to report your conduct of the account to a CRA

Unclear. do you mean, "he should be able to send demands" or "the law entitles him to send demands"?

With regard to reporting to CRA, I disagree. How can you lawfully report conduct on a debt you can't properly verify? The problem of accuracy remains so it becomes very unfair to the debtor.

 

if the suggestion that i have made the point on several threads "on behalf of the creditors" is meant to be a suggestion that perhaps i am "on the other bus" then by all means take it as that, otherwise read the footnote to my posts!

I think know where you stand . I simply mean it's a line I've heard a few times before.

i do not understand the context in reference to put up or shut up

Oops, that should have read put up AND shut up

 

this is normally a suggestion to a creditor to either take action or not take action

 

bit clint eastwood if you see what i mean

Make my day!

[diddydicky]

he is staill able to send demands and to report your conduct of the account to a CRA

Unclear. do you mean, "he should be able to send demands" or "the law entitles him to send demands"?

With regard to reporting to CRA, I disagree. How can you lawfully report conduct on a debt you can't properly verify? The problem of accuracy remains so it becomes very unfair to the debtor.

 

 

===================================================================================

 

 

 

if the debt cannot be varified you are quite right- however- in 99.999% of cases the creditor can show ample evidence of an agreement or contract (albiet one that cannot be enforced through the courts) from your credit card purchases etc - to show that you borrowed money and acknowldged the agreement or contract by your regular repayments

 

dont forget that if you want the adverse information removed from your cra files and the creditor will not do so- that it is YOU who will have to take THEM to court and then the onus of proof will be on you that they had no right to make those markers on your CRA files

 

 

If you feel that you could take them to court and agree that you have used the money lent by them and that the unenforceability of the written agreement allows you to have any adverse cra references removed even though you did miss payments/defaulted...... then i imagine that you would get very short shrift from the judge

 

i am sure (even if he did not document the fact) that he would think you were trying to have your cake and eat it (take the P*ss- in other words)

 

UNLESS the information was wrong (to the extent that the wrongfullness of the information- rather than the adverse reports itself- was moire detrimental to you than if it had been correct.

 

(in other words the fact that you were defaulted for £5,560 when in fact the true figure was for instance £4,560 - i suggest the judge might come to the conclusion that the former would have no more adverse effect on your credit reputation than the latter!!

 

 

my own personal advice would be- unless you have deep pockets- or can get CFA representation (an application for which alone would give you a hint as to your chances of success- since i think no lawyer would take the case on - on a CFA basis) - is that this would be a very unwise decision (IMO)

Edited June 21, 2010 by diddydicky

[bustthematrix]

Further comments below

===================================================================================

if the debt cannot be varified you are quite right- however- in 99.999% of cases the creditor can show ample evidence of an agreement or contract (albiet one that cannot be enforced through the courts) from your credit card purchases etc - to show that you borrowed money and acknowldged the agreement or contract by your regular repayments

Yes, but the data WILL NOT be accurate, or they cannot show that it's accurate. They should therefore simply remove it until they can.

 

dont forget that if you want the adverse information removed from your cra files and the creditor will not do so- that it is YOU who will have to take THEM to court and then the onus of proof will be on you that they had no right to make those markers on your CRA files

True, that's what a well written POC is for is it not? You say they have no right and state your reasons for believing so. They say they do and .... give what in evidence in defence? Somehow I think if things get this far, it might be easier for them to back out. I find it hard to see how they can defend the point against inaccuracy of data or entitlement to record when there is no clear contract granting said rights.

 

my own personal advice would be- unless you have deep pockets- or can get CFA representation (which alone would give you a hint as to your chances of success- since i think no lawyer would take the case on - on a CFA basis) is that this would be a very unwise decision (IMO)

[Lord_Alcohol]

If you feel that you could take them to court and agree that you have used the money lent by them and that the unenforceability of the written agreement allows you to have any adverse cra references removed even though you did miss payments/defaulted...... then i imagine that you would get very short shrift from the judge

 

i am sure (even if he did not document the fact) that he would think you were trying to have your cake and eat it (take the P*ss- in other words)

 

UNLESS the information was wrong (to the extent that the wrongfullness of the information- rather than the adverse reports itself- was moire detrimental to you than if it had been correct.

 

(in other words the fact that you were defaulted for £5,560 when in fact the true figure was for instance £4,560 - i suggest the judge might come to the conclusion that the former would have no more adverse effect on your credit reputation than the latter!!

 

That is a very dodgy argument!

 

If you are 'defaulted' it means you have breached your agreement and have failed to remedy the breach in the time given. If the amount demanded is too high to remedy the breach (ie, you cannot find the money) but is also wrongly too high, then this can only mean that the OC has denied the debtor his full entitlement to remedy.

 

Can you therefore explain why the default should then be recorded and the debtor stuffed?

 

Existence of a debt does not provide for data processing; it is the existence of the consent that does. If there is no agreement, how can that consent be shown to have been given? If the agreement is unenforceable, it is likely to be unlawfully executed and this may be due to gross abuses of CCA by the OC. How then is it "fair" to continue to process data (and comply with Principle 1 of the DPA?).

 

LA

[means2anend]

DD makes good arguments and I am finding myself agreeing with him...But then this happens and LA and BTM come up with some great counter arguments...and I must say that a distinction on proof of consent rather than proof of a debt has much stronger force...and if I were to agree on which of the 2 arguments put forward has the more force... I am more convinced by the latter purely because proof has more relevance to CONSENT than to 'a debt'

 

The consent part may have been overlooked ...yet there is a debt...this is not proof of consent....in relation to data sharing and processing

 

m2ae

[diddydicky]

That is a very dodgy argument!

 

If you are 'defaulted' it means you have breached your agreement and have failed to remedy the breach in the time given. If the amount demanded is too high to remedy the breach (ie, you cannot find the money) but is also wrongly too high, then this can only mean that the OC has denied the debtor his full entitlement to remedy.

 

Can you therefore explain why the default should then be recorded and the debtor stuffed?

 

Existence of a debt does not provide for data processing; it is the existence of the consent that does. If there is no agreement, how can that consent be shown to have been given? If the agreement is unenforceable, it is likely to be unlawfully executed and this may be due to gross abuses of CCA by the OC. How then is it "fair" to continue to process data (and comply with Principle 1 of the DPA?).

 

LA

 

 

well i understood the argument was in relation to an agreement that was shown to be unenforceable rather than a dodgy DN!!

 

A creditor who genuinely beleives that the information he is placing on a CRA file is being put there to show a true representation of the conduct of the account (enforceable or not) then the court is going to accept their actions as reasonable (IMO)

 

 

I think perhaps that it might be my basic concept of what it fair , common sense or reasonable might be the reason why we cannot see eye to eye on this matter

 

therefore i think we need to agree to disagree on this one and i will watch with interest any trial that is posted which involves a cagger taking a creditor to court on this point

[means2anend]

Perhaps I am more straying to Consensual Model as advocated by LA and BTM s purely because it is such an fundamental and important principle in any civilised society and is packed with philosophical and conceptual consequences if one were to treat it lightly...but how does one prove that something does not exist that has never existed as opposed to proving the existence of something that had existed at one time.

 

There would be no problem if there were prima facie evidence ...and this is the nub of DD's argument...yet this is a classic oxymoron or in legal legends ''a hunt for the snark'

 

m2ae

Edited June 21, 2010 by means2anend

[bustthematrix]

See further comments.

well i understood the argument was in relation to an agreement that was shown to be unenforceable rather than a dodgy DN!!

It's anything on the CRA, imo, particularly if the agreement is either lost or iredeemably enforceable.

 

A creditor who genuinely beleives that the information he is placing on a CRA file is being put there to show a true representation of the conduct of the account (enforceable or not) then the court is going to accept their actions as reasonable (IMO)

True, the operative phrase being 'genuinely believes'. Once you can introduce doubt into the process (which you achieve once unenforceability is declared), you have clear grounds for such a dispute. Prior to going to court, you would of course have lawfully requested the OC to dutifully remove the records from the CRA. If they refuse, as they are wont to do (though some have achieved success in this area), they have to justify their actions. They would have to show that the records are at least accurate and that they are entitled to not only record the information, but record it in the fashion that they do. This is where they will run into problems as they won't be able to show anything original or with the debtor's signature or express consent therein. Computer 'records' and statements are all just that.

 

I think perhaps that it might be my basic concept of what it fair , common sense or reasonable might be the reason why we cannot see eye to eye on this matter

I actually do see your point, I just see it in a different light.

 

therefore i think we need to agree to disagree on this one and i will watch with interest any trial that is posted which involves a cagger taking a creditor to court on this point

No worries - I do appreciate the challenges though as it keeps us all on our toes.

Boy, I'm lovin this banter:)..., have to go soon though:cool:.

[Lord_Alcohol]

Perhaps I am more straying to Consent purely because it is such an fundamental and important principle in any civilised society and is packed with philosophical and conceptual consequences if one were to treat it lightly...

 

m2ae

 

I completely agree!

 

We also have to consider that CCA does not offer the OC any option of data processing where there is a dispute or where a court may not grant an enforcement order.

 

We also have the core tenet of fairness within the DPA and, while I agree with DD on the concept of fairness, I do not accept that it is fair in any sense of the word to process and record adverse data when an account is in dispute or where the agreement is found to be so badly formed and non-compliant with CCA that it is declared unenforceable.

 

Would anyone give their consent to data processing if they knew beforehand that the agreement they were about to sign did not comply with CCA? I don't know. Personally, I wouldn't. To me it seems perfectly reasonable to then remove the OC's rights to process my data if his unlawful capers are subsequently discovered.

 

Just my opinion of course...

 

LA

[bustthematrix]

The OC's have two major hurdles

 

1. Prove they have consent to process and record the data

2. Prove the data is accurate

 

How will they achieve these?

[diddydicky]

if the debtor is taking the creditor to court--- the OC has NOTHING to prove- the debtor (claimant) has- to prove the opposite of what you say the OC has to prove..... thats the whole point

 

you are going to be talking well into four, if not five figures.............

 

and the danger is that the debtor "could" win and still be liable for his opponenets costs!!

[Lord_Alcohol]

if the debtor is taking the creditor to court--- the OC has NOTHING to prove- the debtor (claimant) has- to prove the opposite of what you say the OC has to prove..... thats the whole point

 

you are going to be talking well into four, if not five figures.............

 

and the danger is that the debtor "could" win and still be liable for his opponenets costs!!

 

Does the debtor need to take the OC to court?

 

In any case, I was under the impression that it was up to the OC and the CRA to show that their processing complies with the DPA. If it doesn't, then ICO need to be involved.

 

If the debtor is being sued, then he can use s140B(2)(b) to obtain an order preventing any unfair action and it is, under s140B(9) the responsibility of the OC to prove that his actions are fair.

 

LA