Cap1 & CCA return

[Guest The Terminator]

What are your thoughts on a lender being able to use an agreement which has no prescribed terms, thus completely unenforcable, to still process our data?

 

I would have thought that if the agreement contians no prescribed terms, it is (effectively) an illegal document and surely they cannot use the t&c's to process our data? Also, doesn't the Data Protection Act state that data can only be processed if obtained illiegally?

 

The argument on another thread is that a Judge would allow them to process your data because they can prove a legitimate interest in that you had the money and if you defualted them they have a right to tell other lenders about it.....I'm all confused about it now, lol....

 

Everytime I think I understand this, something else comes up which confuses me, lol....

 

I might have brought this up on another thread but the processing of data is a very complicated area of the law.My own personel view is that your personal data should not be processed without your permission.Now in a standard t&c there is always a clause about passing on your data.As far as I'm concerned this is an unfair term.My reason's are that the agreement is between you and the creditor not the creditor and uncle tom cobley and all.This also leads to all types of fraud and I for one have never had a method statement explaining how my data is being processed and what safeguards are in place.Going back to your question.If the agreement doesn't meet the criteria then it is unenforceable regardless if there is a debt owing.There is a lot of significant case law that demonstrates this.If the lender cannot get their paperwork in order then that is their problem and they cannot enforce the debt.Although the issue is mainly about unfair charges this is only the tip of the iceberg,everyday something new is coming up.I'm currently researching the T&C as many of the terms fall within Schedule 5.5 UTCC(1999).These I see as a bargining tool and let's be honest the tide is starting to turn.

[Peterbard]

What are your thoughts on a lender being able to use an agreement which has no prescribed terms, thus completely unenforcable, to still process our data?

Hi

 

This is my fault for being a bit middled and perhaps confusing .

If the agreement is not properly executed ie the pre-contractual conditions are not met the contract is void and so is everything that it contains including any permissions.

If however the contract has been signed and seeled for some time and you require a copy but none is forthcoming then the debtor is stopped from persuing the debt,as per section77. It does not say that the contract is void.

If however you say that the the reason the agreemt is not being produced is because there never was one then you are back at scenario 1(the agreement was not properly executed and there fore is void)so no permission given.

 

Peter

[m55dlc]

It boils down to the fact that you had use of a card / loan etc, you made payments on a card / loan therefore you have a contract. It is in the Banks / CC company's interest to share this information and therefore you will have data processed, executed agreement or not. As I said earlier, try arguing this point against a judge and they will say 'tough'. Try getting the data removed from a CRA and they will remove ALL of your data and not show ANY data in the future, which will be 100 times worse than having a history of CCJ's.

[m55dlc]

If however you say that the the reason the agreemt is not being produced is because there never was one then you are back at scenario 1(the agreement was not properly executed and there fore is void)so no permission given.

 

To which the bank provides evidence to the contrary and you are buggered. What would it take? A payment? A statement? Very little and you are trapped. I don't let you steal from me, but if you do I would tell the police. You tell me I'm not allowed to, but I say sod it, I'll do it anyway, then you try and get it overturned. Not a snowballs chance in hell.

[humbleman]

But if they cannot show terms contained in a document where you gave your express permission to process your data, surely thats enough?

 

At the moment all we could do is debate amongst ourselves and explore various scenerios. But unless someone is brave enough to drag one of these companies in front of the Judge and test it, its all academic. With respect to some post taking the stance one way or the other I personally don't think there is a clear cut answer to this as yet, unless of course someone knows otherwise.

[m55dlc]

....and I should change my name to DevilsAdvocate...........

[Peterbard]

To which the bank provides evidence to the contrary and you are buggered. What would it take? A payment? A statement? Very little and you are trapped. I don't let you steal from me, but if you do I would tell the police. You tell me I'm not allowed to, but I say sod it, I'll do it anyway, then you try and get it overturned. Not a snowballs chance in hell.

 

Hi M

 

with respect who would they present it to it would not get to court it would be unenforceable.No judge could override that. and no further evidence would be heard.

 

Petr

[Guest The Terminator]

....and I should change my name to DevilsAdvocate...........

 

Now that would be confusing:D

[m55dlc]

If the agreement is not properly executed ie the pre-contractual conditions are not met the contract is void and so is everything that it contains including any permissions.

 

Wrong! Only unenforceable. The bank / cc company forwarded you money and / or credit which they can prove. Contract exists, end of story.

[m55dlc]

Hi M

 

with respect who would they present it to it would not get to court it would be unenforceable.No judge could override that. and no further evidence would be heard.

 

Petr

 

But they are not asking for money, so the enforceability of the contract is not in question. They are processing your data as they are allowed to as they have an interest in doing so. You cannot disprove their interest as they can prove it, therefore there is nothing to make the judge stop the processing.

 

Should this be on a DPA thread and not a CCA one?

[Peterbard]

Wrong! Only unenforceable. The bank / cc company forwarded you money and / or credit which they can prove. Contract exists, end of story

 

Why is everyone so quick to call me wrong

 

Listen grasshopper

 

No executed agreement no contract hence the tem pre contractual.

 

The ways of the cca are many and often hidden only through study can one seek enlightenment.

 

Kane

[m55dlc]

Wrong! Only unenforceable. The bank / cc company forwarded you money and / or credit which they can prove. Contract exists, end of story

 

Why is everyone so quick to call me wrong

 

Listen grasshopper

 

No executed agreement no contract hence the tem pre contractual.

 

The ways of the cca are many and often hidden only through study can one seek enlightenment.

 

Kane

 

Pre-contractual until you used it, therefore CONTRACTUAL.

 

If you don't like it, don't use it, otherwise you are BOUND by it

[Peterbard]

But they are not asking for money, so the enforceability of the contract is not in question.

 

NO but what they are asking for is on the contract and there isn't one.

Peter

 

Anyway is it true that Pam Ladybird and Battleaxe are on retreat to stonehenge and thats why we haven't been hearing from them.

 

Peter

[Peterbard]

Pre-contractual until you used it, therefore CONTRACTUAL.

 

No precontractual untill the agrement is executedit then becomes a contract.

 

I use my toothbrush every day but i am not contracted to do so.

 

Petr

 

Peter

[Guest Battleaxe]

Hubble bubble toil and trouble,

Cauldron boil, caulron bubble.....

 

You know I am a Good Witch, this why I get into trouble with the MODS

 

I also coundn't kick start my broomstick and I get into trouble with air traffic control for flying too high

[Guest The Terminator]

Hubble bubble toil and trouble,

Cauldron boil, caulron bubble.....

 

You know I am a Good Witch, this why I get into trouble with the MODS

 

I also coundn't kick start my broomstick and I get into trouble with air traffic control for flying too high

 

You forgot to add you've been hit with the congestion charge:D

[m55dlc]

Pre-contractual until you used it, therefore CONTRACTUAL.

 

No precontractual untill the agrement is executedit then becomes a contract.

 

I use my toothbrush every day but i am not contracted to do so.

 

Petr

 

Peter

 

We can do this loop all day and all night. You used it, you have a contract, whether or not there is an executed agreement or not.

 

Was your toothbrush provided to you by a third party? OK, you bought the toothbrush, you don't use it therefore you can take it back to the shop. If you use it, you can't take it back to the shop. Doesn't that make a much better analogy than yours?

 

You get an agreement that may or may not be executed, as in this arguement that is SO INSIGNIFICANT! You get issued a card under said agreement and you use it. Therefore, whether or not you or your cat signed it, whether or not they executed it, you cannot send it back because it is USED. You used it, you had an agreement for perusal, you are deemed to have signed it AS SOON AS YOU'VE USED IT.

 

Read the contractual stuff, this is not CCA or DPA, it is contract.

[paulwlton]

A loan agreement containing an administration fee is included in the total charge for credit which is perfectly acceptable under the CCA.

 

This is the interesting bit, reading through the small print (terms) it states the fee will be debited to your loan account on the day the loan amount is drawn and interest on the Admin fee will be charged and is included in the interest above.

 

This reads to me that the Admin fee is actualy credit but has not been included in the total credit amount.

 

Paul.

[Guest The Terminator]

enforceability

 

 

1. Void contracts

A "void contract" is one where the whole transaction is regarded as a nullity. It means that at no time has there been a contract between the parties. Any goods or money obtained under the agreement must be returned. Where items have been resold to a third party, they may be recovered by the original owner

 

2. Voidable contracts

A contract which is voidable operates in every respect as a valid contract unless and until one of the parties takes steps to avoid it. Anything obtained under the contract must be returned, insofar as this is possible. If goods have been resold before the contract was avoided, the original owner will not be able to reclaim them.

 

3. Unenforceable contracts

An unenforceable contract is a valid contract but it cannot be enforced in the courts if one of the parties refuses to carry out its terms. Items received under the contract cannot generally be reclaimed

 

Don't disagree with either of you but you need to read 3).

[ladybird17]

yup I'm here too - just been complaining about the broomstick congestion charge on the way back from Tesco, and unpacked my shopping, and will soon be giving the cauldron a good stir.

[m55dlc]

(Oh s**t, Peter and Zubo have gone quiet. That means they're reading acts again)

[Guest Battleaxe]

M55, you are complaining or worrying when they go quiet. I look on it as a learning curve when they post. Spirit of adventure needed here. oh heck I have just noticed the spellchecker tick, how many months have I been posting? Still wont check my spelling though

[m55dlc]

3. Unenforceable contractsAn unenforceable contract is a valid contract but it cannot be enforced in the courts if one of the parties refuses to carry out its terms. Items received under the contract cannot generally be reclaimed

 

So, then, how are you going to get a judge do anything then?

 

Do you see the words Valid Contract?

 

This is the whole point of my arguement this afternoon. They have an interest in processing the data therfore they can.

 

Are you going to get a judge to stop them?

[m55dlc]

M55, you are complaining or worrying when they go quiet. I look on it as a learning curve when they post. Spirit of adventure needed here. oh heck I have just noticed the spellchecker tick, how many months have I been posting? Still wont check my spelling though

 

But your spelling is good, apart from a number of others on CAG:D

[Guest The Terminator]

So, then, how are you going to get a judge do anything then?

 

Do you see the words Valid Contract?

 

This is the whole point of my arguement this afternoon. They have an interest in processing the data therfore they can.

 

Are you going to get a judge to stop them?

 

If a contract is unenforceable then a judge can't/won't do nothing period.Now im going to be devil's advocate.I know from your post's that you are a great fan of MBUSA so you decide you don't like a term in their agreement so what option are you going for 1,2 or 3. You might like to know that a judge from Barrow County Court was going to jail a Data Controller for illigally processing data perhaps that's the way the judge would stop them.