Cap1 & CCA return

[conar686]

Information Commissioners Office guidelines

Can someone point me at a link or the URL.

[patrickq1]

Freedom of Information Act - Information Commissioner's Office - ICO

[patrickq1]

good flag stirs the heart lol

[patrickq1]

ICO Disclosure Log - Response to Request

Request Ref: FOI/443

Date of Response: 01/09/06

Please inform me of the approximate number of prosecutions made under the

Act relating to unsolicited faxes and telephone calls made to individuals who

have indicated they do not wish to receive such communications and have

informed the offenders accordingly.

Has any company or individual has ever been fined or disciplined under the

regulations.

1. ‘The approximate number of prosecutions made under the Act relating to

unsolicited faxes and telephone calls made to individuals who have indicated

they do not wish to receive such communications and have informed the

offenders accordingly’ – The relevant legislation for enforcement purposes in

these circumstances is the Privacy and Electronic Communications (EC

Directive) Regulations 2003 and the Enterprise Act 2002. No ‘prosecutions’

have been undertaken as the legislation does not provide for criminal action.

Therefore the Information Commissioner does not hold this information.

However, please see 3 below.

2. ‘Whether any company or individual has been fined…’ Again the relevant

legislation is as stated in 1 above, and as the legislation does not provide for

criminal prosecution and it is in this context that fines would be ordered, no

individual or company and been ‘fined’ and therefore the Information

Commissioner does not hold this information. However, again please see 3

below.

3. ‘Whether any company or individual has ever been … disciplined…’ At the

present time a number of companies have been served with preliminary

enforcement notices for alleged breaches of the above noted regulations. This

is an informal step which may result in formal action under the regulations,

should they fail to respond to those notices.

in other words the ICO are not capable of prosecuting anyone or have no real intentions of prosecuting i also did not realise that they have been talking to companies about the removal of the restrictions of the data processing act concerning any agreements from 1999 and backwards meaning another 40,000,000 accounts that will now go on the sharing register wether you like it or not

COME ON WHAT IS THIS ? They are not responding to our data being processed because they are discussing ways to make information available without your say so

[patrickq1]

i thought the whole reason for the act was to safeguard our data not to allow the sharing of it

[noomill060]

Originally posted by TheAnalyst here:

 

http://www.consumeractiongroup.co.uk/forum/legalities/107704-information-commissioners-office-say.html

 

 

 

I am suprised at the Information Commissioners Office's reply to my complaint about Littlewoods, I sent them a copy of a letter from littlewoods in which they clearly state that they have no signed credit agreement. My complaint was that without a signed credit agreement they MUST be breaking the Data Protection Act in sharing information to third parties (CRA's)

 

Here's their reply:

 

 

Quote:

Dear Mr Analyst

 

 

 

Thank you for your further correspondence regarding information recorded on your credit file by Littlewoods.

 

I apologise if you feel that I misunderstood your complaint. Under the Data Protection Act 1998, lenders are not required to have a credit agreement signed by you in order to pass information to the credit reference agencies. The lenders will have explained in their terms and conditions that if your account goes into default; they are within their rights to pass this information to the credit reference agencies. This is compliant with the first principle of the Data Protection Act 1998 which states that personal information shall be processed fairly and lawfully.

 

Therefore it does not appear that Littlewoods would be in breach of the Data Protection Act. This may however be an issue under the Consumer Credit Act 1974 which you would have to clarify with the Office of Fair Trading.

 

 

I trust that this clarifies the situation.

 

Yours sincerely,

 

 

 

Sarah Cookson

 

Customer Services Team

 

The Information Commissioners Office

 

This surely cannot be right????

[reallymadwoman]

Surely no agreement = no proof of contract between the parties = no legitimate interest in processing or consent?

What are they on?

[lookinforinfo]

What they are saying Noomill060 is that if it is in their T&Cs it is therefore fair and lawful. Hmmmm........."In the event of missing three monthly payments we

will come round and shoot your first born".I don't think so. We have already seen with bank

charges that just because it is written into their agreement does not make it fair or lawful.

 

As I said in an earlier post, there may be cases where the creditor does have

a legitimate interest to process the data. But equally, by the Information Commissioners Office's own

Guidance notes, there will be occasions when notwithstanding their

legitimate interests, their processing will still be unfair or unlawful. And that will be when there is a CCA dispute for instance. and when the legitimate

expectations of the data subject are not apparent. And of course there are others. But each one would have to be judged on its merits and I am not sure

that some in the Information Commissioners Office are fully aware of the implications of the Data

Protection Act. "A little learning is a dangerous thing".

[JonCris]

Who on earth is this Sara Cookson. Her response is not only at variance with the law but it doesn't make any sense whatsoever.

 

If there is no agreement any T's & C's are irrelevant & as has already been suggested their T's & C's could say anything & also could have been written the day AFTER your made your complaint to the Information Commissioners Office

 

You need to write back & advise this person to check with her boss because he disagrees with her as per Lacors

 

Send her a copy of the letter from this thread

[noomill060]

jonchris- that is exactly what I thought.

[noomill060]

The lovely Sarah appears to take a different view, she is after all, an ICO Customer Service Team member.( They do know best...)

[JonCris]

It might be an idea to ask Ms. Cookson to point out which bit of the statute she relies on to support her position

[noomill060]

Ive put a link on the thread, on which the letter from the Lovely (but misinformed) Sarah, was originally posted.

[Peterbard]

Hi

Below is an extract from the orriginal Lacors letter regarding the creditor placing an entry on an account whose agreement is unenforceable.

Interestingly there is no mention of data protection in their analasys.

but they refer to the CCA being "lessened" in impact if this were to occur.

I thnk on reflection this is why the OFT are being brought in on this since they are supposed to regulate the CCA.

 

If the Information Commissioners Office And/or the OFT are more comfortable with this reason for giving the statement that we we requiire i for one am quite happy to accept it on those terms.

 

Best regards

Peter

 

 

"A specific example of this type of case would be where a catalogue company has supplied goods to a consumer on credit without entering in to the required credit agreement with the consumer. The consumer has made some repayments (certainly enough to cover the cost of the goods received but not enough to cover all interest and charges) but has been advised that the agreement is unenforceable and has therefore informed the trader that she will not make any more payments on the account. The trader has conceded that there is no enforceable agreement but is threatening to make a default entry on the credit reference file.

 

The opinion of LACORS is that where a creditor accepts that an agreement is unenforceable against a consumer they should not be permitted to 'punish' the consumer by placing a record of the 'default' on their credit reference file. To do so would be unfair and unreasonable. It would also lessen the impact of the provisions of the Consumer Credit Act which make it clear that a creditor should not be allowed to enforce a credit agreement where the agreement is improperly executed."

[noomill060]

The LACORS letter would thus appear to apply to any improperly executed credit arangement, where the original sum borrowed has been repaid, but a negative balance remains, consisting wholley of charges and interest.

[Peterbard]

HI Noo

I think it would have been unwise(polliticaly) of Lacors to suggest that goods should not be paid for.

I think however once the statement has been made that a Creditor posessing an unenforceble agreement should not enter information with a credit agency, thus partially enforceing it the point will be made.

 

Best regards

Peter

[maybelline]

precisely my position, I will be bringing this to their (notorious creditor!)attention and see how they respond.

[noomill060]

Hi Peter,

 

Of course, it would quite wrong for anyone to say that goods should not be paid for.

 

However, I did say that where the borrower has repaid the ACTUAL sum borrowed, and the creditor, by its own foolishness, has been unable to provide a properly executed agreement wherein the borrower agreed to pay interest and charges, it appears unjust for them to assume that they still have the right to tell the world about it, even though the agreement may only be enforceable by court order, if at all.

 

 

This is my understanding of the final paragraph in the LACORS letter, forgive me if i have misunderstood it.

 

"The opinion of LACORS is that where a creditor accepts that an agreement is unenforceable against a consumer they should not be permitted to 'punish' the consumer by placing a record of the 'default' on their credit reference file. To do so would be unfair and unreasonable. It would also lessen the impact of the provisions of the Consumer Credit Act which make it clear that a creditor should not be allowed to enforce a credit agreement where the agreement is improperly executed.""

[noomill060]

But why should the opinion of the creditor be considered?

 

Either the agreement is properly executed and enforceable or it isnt, the creditor is hardly a dispassionate observer and is thus not in a position to comment on the agreement, which it was their responsibility (and in there own interest) to ensure enforceablitity.

[maybelline]

and how does one get a creditor to accept their agreement is unenforceable anyway? you have to go to court because they will have you sign a napkin if they thought they could get away with it, I dont mind paying what is fair but a lot of agreements have unwittingly tied folk into exorbitant credit and are being fleeced using the CCA it seems to do so!

[Peterbard]

HI

 

I don't think the Creditor would admit that the agreement was unenforceable unless he had to as we have seen they do because they have no option.

 

I think that the point you raised is very interesting on a number of levels apart from the enforceability issue.

Regarding the letter from Lacors I believe that the requirement for the ballance of the amount of credit to be paid is a method of curcumventing the argument that the debt still exists even though unenforceable.

With the ballance of the sum borrowed paid this would not be an issue as the entire amount left to be paid would be interest and charges ie a product of the agreement which is unenforceable and improperly executed so therefore void.

I know through telephone conversations with them that they are opposed to these actions being taken by creditors on an Unenforceable account in any instance, the sticking ground has allways been the Information Commissioners Office insistance that a debt still exixts and there fore some justification also exists for recording data.

Now you and i know that this is unconstitutional as per the Data Protection Act but has someone wisely remarked on here a few posts back the poroblem is gettintg them to admit it. This gives them a get out and also provides us with the statement we need

 

An interesting point in this and something looking back over the thread i cannot see as being mentioned before, is the one of what does the debt consist of after anagreement is unenforceable.

 

It is well known that a crditor may pursue adebt even though the debt is declared unenforceable although they may not pursue it through the courts indeed that is the excuse they use to continue to process data as above.

 

The common standpointis for the debtor is to deny that an accont ever existed which then results in the messy business of the creditor producing statements to prove the contrarry.

This would only be a problem if the debt consist of purely the orriginal some borrowed as you are not saying that the account did not exist only that the interst and charges were not assigned against the ballance as no agreement was correctly made for them to be used as anything else.

 

For this reason I think it would in some instances be better when advising the creditor of the unenforceability of an agreement for the debtor to calculate the amount borrowed and subtract the amounts paid in interest and charges plus the amount paid off the advance and then dependant on the circumances saying, this is the amout is still owed from the orriginal advance or ther is nothing owed because the interest and charges paid were incorrectly made as interest /charges payments and should have been credited to the account(Due to incorrectly or unexecuted agreement) or evern that you are due a reffund of the difference due to over payment.

If this course was followed there would then be no debt due after the agreement was declared unenforceable and therefore there could be no justification for the CRA to be notified or for DCA to further pursue.

 

We are looking for a way forward with this ,some sort of a definative statement that the practice of registeing a default on an improperly executed agreement is a form of enforcement and therfore contrary to legislation.

We have tried banging them over the head with the Data Protection Act this is a subtler tactic and seems to be working using the CCA itself.

 

Best regards

Peter

[maybelline]

yes, Peter, that is the approach I have taken with my most recent communication with the creditor, I have paid this muchXXX and the rest is *!*? and the agreement unenforeable etc, it will be interesting to see the response they come up with:)

[Peterbard]

and how does one get a creditor to accept their agreement is unenforceable anyway? you have to go to court because they will have you sign a napkin if they thought they could get away with it, I dont mind paying what is fair but a lot of agreements have unwittingly tied folk into exorbitant credit and are being fleeced using the CCA it seems to do so!

Hi Mayb

 

In my experiance creditors have and do admit to having unenforceable agreements because they realise that when they are requested to produce by a court and cannot they have to.

Most realise that this will be the eventual outcome and throw in the towel unless they think they can get away with bullying the debtor into withdrawing their claim.

 

Best regards

Peter

[Peterbard]

yes, Peter, that is the approach I have taken with my most recent communication with the creditor, I have paid this muchXXX and the rest is *!*? and the agreement unenforeable etc, it will be interesting to see the response they come up with:)

 

Hi

 

I did one of these for someone recentey it was a credit card account with Cap One, agreement a joke.

So far so good i have had no further contact from them or from their collection agents Lowells.

I compouned the interest paid and then deducted it from the total borrowed together with all other payments. Turned out they owed the debtor £350 and of course their should be no issue of their still being a debt remaining.

 

 

Best regards

Peter

[patrickq1]

good morning peter,i read a consultation document between ICO and BAnks/finance co that has been produced by the ICO,it concerns the sharing of dATA pre 1999 and the reason i think reading between the lines was pre 1999 contracts must have had some non negitiable part in the contract that prevents the banks/finance co from processing this data from that period and before, it amounts to 40 millions credit cards pre 1999 but it also states that they will somehow produce a waifer and allow this data to be processed regardless of anyones opinions,like the way they entered into after 1999 that it was acceptable to insert a precondition of data sharing as a non negotiable and implied term in the contract,is this allowed without precice goverment legislation they seem to be of the same opinion as the banks since their is already 250 million cards being processed yearly