Cap1 & CCA return

[shane5408]

1. The data subject has given his consent to the processing.*

if the agreement is unenforcable by virtue of lacking prescribed

term(s) contract is deemed void hence debtor never gave consent to creditor

to process his data this statement is in most credit agreements is in itself is partly an unfair contract/agreement since you have not had any say because it is an implied part of the agreement and not a negotiated part of any agreement.yes i do not have a problem with this provided it is only that the data can be passed to the COURTS/POLICE/AND INLAND REVENUE.......this is also partly the TRADING STANDARDS remit to remove this clause as being an unfair term within the contract...i sent you data from the human rights charter peter did you look at that

 

Hi Patrick,

 

this is one of the arguments I'm looking into, the prerequisite requirement of allowing creditors to process, collate and share our data must be accepted upon application of loan/credit card etc by the debtor; notewithstanding the debtor having no say or right to negotiate the terms of this processing in any way; seem unfair? I think so!!

 

Unfair Terms

5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

Effect of unfair term

8. - (1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.

 

Currently looking into Human rights Act as well as others, on information overload at the moment! will take me a few days to digest everything i think!

[shooter001]

Hi i just got a response to my cca default letter stating no contract must exist and is unenforceable, they responded with acopy of one of the agreements after committing a criminal offence. trading standards has given me a reference number and contact number if they continue to harass me or process any info or try to enforce it.

 

After reading the agreement they sent me i noticed there are no dates and the apr calculations dont come out the same as the calculator i used on the dti website by about £10.

 

Heres the intersting thing after recieving the copy without the prescribed terms and conditions printed on the back i remeberd were i filed old documents in the garage. I dug them out and got a carbon copy of the original. It is missing a signature from the creditors yet there copy is signed but not dated. So this may be a ccase of fraud and even if it were signed am i right to say it wasnt properly executed due to the fact that there isnt 1 single date anywhere relating to the day it was signed.

 

Also Thames Credit sent me a covering letter which i will post stating that they are not bound by the law of the consumer credit act. I attach for your viewing and comments. I think i might have some fun with this one .

 

 

 

There altered copy to my carbon copy:

P.S. doesnt the APR qualify for extortionate. And i can also post a copy of the original carbon copy missing there signature and some scribles. This was also signed on the premesis.

 

regards,

 

Craig.

[patrickq1]

sometimes copies are in duplicate and they can send you your copy and keep their signed copy unless you are absolutely sure you did not sign a copy but better minds are on here to explain the ins and outs good luck

[patrickq1]

that is simmalar to what i was saying but consider the banker is the debtor that ll put tnt in you pot lol

I found this one intresting more than most threads,one particular reason is Has anyone defaulted the Banks or Finance and Credit Card Companies Etc:for the simple fact of the Matter is have these defaults been listed by experian and others credit ref agenceys considering our defaults are legal as ordered through law then it is up to the credit reg agenceys to record these defaults if they are purpoted to be a lawfully registered agencey in the eyes of the justice system......so all banks and others have now written defaults for six years or until plaintiff sees fit to have these legal defaults removed at their PLEASURE is this not the correct procedures we have all been talking about....because i once remember a quote from someone that in truth the BANKER IS THE BORROWER,because he borrows your money with the promise to pay on demand......if he cannot pay on demand then he has lawfully defaulted the Bank who could be a subject to an administration order or some penalty through the stock exchange being a legal plc isnt a default against a PLC a much bigger crime ,just a thought

[shooter001]

sometimes copies are in duplicate and they can send you your copy and keep their signed copy unless you are absolutely sure you did not sign a copy but better minds are on here to explain the ins and outs good luck

 

My point is this if you read my post; I walked away form signing in the store with a carbon copy that didnt have there signature on the agreement; however on a CCA request they have sent me a signed copy meaning it isnt a properly executed agreement if signed after the CCA request hence the fraud. I have the carbon copy original and I can prove this, the agreement isnt even dated on the day of signature by either party.

 

Regards,

 

craig.

[patrickq1]

ah missed that bit sorry mate

[shooter001]

np but its gettin me going because if you read there letter she is saying she is above the law and if my facts are correct i need them investigated for fraud and the criminal offence. I will want the OFT to know werther they can still hold a credit license fafter writing a lettor like that also, along with the suspected fraud.

[andrew1]

np but its gettin me going because if you read there letter she is saying she is above the law and if my facts are correct i need them investigated for fraud and the criminal offence. I will want the OFT to know werther they can still hold a credit license fafter writing a lettor like that also, along with the suspected fraud.

 

What you'll find is that they, like Cabot DCA, are saying they are using the purchase of the account as being under the Law of Property Act 1925 where they say they buy the Rights and not the Duties of the agreement. If you search the Cabot threads you'll see what I mean. Trouble is the Consumer Credit Act was brought in to protect the consumer and they seem to ignore this. Also, if you go through all the documentation you have silly things, like Thames Credit being registered under the CCA, so why register if you are not subject to its' laws?

 

Thames Credit have been ' introduced ' to the Cabot Fan Club their Director Mr Lunn having been informed they will be subjected to what Cabot has been if they practice 'bad Practice' - if you are writing you might like to remind him of that. Report everything to the authorities, helps keep them focussed on change.

[un1boy]

Hi Peter,

 

This is taken from the banking code:

 

Credit reference agencies

 

13.6 We may give information to credit reference agencies about the personal debts you owe us if:

 

you have fallen behind with your payments;

the amount owed is not in dispute; and

you have not made proposals we are satisfied with for repaying your debt, following our formal demand.

 

13.7 In these cases, we will give you at least 28 days notice that we plan to give information about the debts you owe us to credit reference agencies. At the same time, we will explain to you the role of credit reference agencies and the effect the information they provide can have on your ability to get credit.

 

Sections 13.6 and 13.7 refer to the disclosure of default information, and when it can be relayed to credit reference agencies. For some time it has been common practice for banks and building societies to obtain the customers consent to such disclosures before borrowing is taken out, usually by way of a declaration on an application form.

Whether or not notice was given by the subscriber and consent was obtained from the customer at the time the account was opened, disclosure of default information can be made. But, in all cases, the customer must be given further notice of the intention to disclose the information at least 28 days before the disclosure is made, for example, when a notice of default or formal demand is given. At the same time, customers must be given an explanation about how default information registered against them may affect their ability to obtain credit in the future. This notice will mean that customers have 28 days to try to repay or come to some arrangement with the subscriber before default information is passed to the credit reference agencies.

 

I would also argue that serving a default or enacting any type of enforcement while an account is in dispute would also contravene the data protection act.

 

Schedule I

 

Part I

The principles

1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless—

(a)at least one of the conditions in Schedule 2 is met,

 

the act does not describe lawfulness however the Information Commissioners Office legal guidance notes on the data protection act says:

 

3.1.4 Lawfulness

The Act does not provide any guidance on the meaning of "lawful". The natural meaning of unlawful has been broadly described by the Courts as "something which is contrary to some law or enactment or is done without lawful justification or excuse". (R v R [1991] 4All ER 481). The term applies equally to the public and private sector and to breaches of both statute and common law, whether criminal or civil. An example of information unlawfully obtained might be information, which is obtained as a result of a breach of confidence or in breach of an enforceable contractual agreement. Since 2 October 2000 it applies to a breach of the Human Rights Act 1998 by a data controller bound by that Act.

 

By their own admission then for the processing of data to be lawful and abide by schedule I (1) it cannot, by virtue of processing the data breach any laws or enactments. However, as stated above to do so while the account is in dispute is in breach of the banking code sec. 13.6 -13.7

 

 

Schedule 2 of data protection act states:

 

1. The data subject has given his consent to the processing.

if the agreement is unenforcable by virtue of lacking prescribed term(s) contract is deemed void hence debtor never gave consent to creditor to process his data

 

2. The processing is necessary-

(a) for the performance of a contract to which the data subject is a party, or

no contract exists between debtor and creditor as deemed void above

 

 

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

debtor certainly has no plans to enter into a contract in the immeditate future so does not apply

 

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

this refers to passing the data to official organisations such as government agencies, police, health organisations etc, since CRA's are not governement the exemption does not apply here either

 

 

4. The processing is necessary in order to protect the vital interests of the data subject

As per Information Commissioners Office's legal guidance on the data protection act this refers to matters that may affect the debtor in life or death situations, ie the need to disclose information to emergency services etc so again, exemption does not apply here.

 

In regards to Default notices and procedures under the CCA:

 

Contents and effect of default notice

88.— (1) The default notice must be in the prescribed form and specify—

(a)the nature of the alleged breach;

(b)if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

©if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

(2) A date specified under subsection (1) must not be less than seven days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those seven days have elapsed.

 

under the CCA a minimum period of 7 days notice must be given to the debtor that a default notice is being served however as under the banking code the period stipulated is 28 days most creditors use the latter period.

 

regards,

shane

 

 

Hiya mate, don't mean to be offensive, but the banking code is a crock of you know what - it's not woirth the paper it's written on.

[un1boy]

hiya,

 

With regards to the default under the CCA i'm referring to a default notice being made against the debtor and recorded on his credit file by credit reference agencies, not being in default as in when a credior fails to respond to a cca request in the time limit.

 

what i was trying to say was that under the Consumer Credit Act S88 states that the creditor must give the debtor notice that a default will be served against him and a fixed amount of time in which should he take certain actions is able to avoid the default being recorded. The creditor cannot just register the default instantly without first informing the debtor. (as the Information Commissioners Office seeems to believe!)

 

In regards to the creditor being allowed to process debtors data while account is in dispute thogh there is no law (that i'm aware of) that categorically states they cannot, the banking code 13.6 does say that creditors will only pass info to cra's if the amount owed is not in dispute. As you say though effectively this means anyone can just dispute the account should they feel they need a bit of a payment rest! The key thing here would be establishing a valid reason to dispute the account, such as improper execution or unenforcability, etc and involving a third party like trading standards to ensure the creditor does not just disregard the banking code and register the default anyway.

 

 

Until we see a true copy of the agreement, as you say we cannot know if it is enforcable or not, i also find is surprising it may be a non cancellable agreement, am i right in thinking that on the majority of loans/cred cards cancellation rights are given (cooling off period) and this then renders the agreement cancellable?

 

regards,

shane

 

The OFT Guidleines on debt collection state they must suspend colelction activity on the account whilst it's in dispute too.

[un1boy]

1. The data subject has given his consent to the processing.*

if the agreement is unenforcable by virtue of lacking prescribed

term(s) contract is deemed void hence debtor never gave consent to creditor

to process his data this statement is in most credit agreements is in itself is partly an unfair contract/agreement since you have not had any say because it is an implied part of the agreement and not a negotiated part of any agreement.yes i do not have a problem with this provided it is only that the data can be passed to the COURTS/POLICE/AND INLAND REVENUE.......this is also partly the TRADING STANDARDS remit to remove this clause as being an unfair term within the contract...i sent you data from the human rights charter peter did you look at that

 

I rencently applied for a credit card, and put on the agreement that I only give consent for my data to be processed during the lifetime the account is open.

 

They have issued the card and not put anything on the credit files yet!

 

I also kept a copy!

[Peterbard]

hiya,

 

With regards to the default under the CCA i'm referring to a default notice being made against the debtor and recorded on his credit file by credit reference agencies, not being in default as in when a credior fails to respond to a cca request in the time limit.

 

what i was trying to say was that under the Consumer Credit Act S88 states that the creditor must give the debtor notice that a default will be served against him and a fixed amount of time in which should he take certain actions is able to avoid the default being recorded. The creditor cannot just register the default instantly without first informing the debtor. (as the Information Commissioners Office seeems to believe!)

 

In regards to the creditor being allowed to process debtors data while account is in dispute thogh there is no law (that i'm aware of) that categorically states they cannot, the banking code 13.6 does say that creditors will only pass info to cra's if the amount owed is not in dispute. As you say though effectively this means anyone can just dispute the account should they feel they need a bit of a payment rest! The key thing here would be establishing a valid reason to dispute the account, such as improper execution or unenforcability, etc and involving a third party like trading standards to ensure the creditor does not just disregard the banking code and register the default anyway.

 

 

Until we see a true copy of the agreement, as you say we cannot know if it is enforcable or not, i also find is surprising it may be a non cancellable agreement, am i right in thinking that on the majority of loans/cred cards cancellation rights are given (cooling off period) and this then renders the agreement cancellable?

 

regards,

shane

Hi Shane

 

I understand what you mean but what i am saying is that the section 88 default notice has nothing to do with the default on your credit file.

The sanctions for breaching that notice do not mention anything about data sharing .They are:

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as

terminated, restricted or deferred, or

(e) to enforce any security.

What is being registered by the CRA is the default this occurs when the agreement is breached ie missed payment. NOt the issuance of a default notice under the CCA.

I agree that the banking code gives guidelines as to what the bank should do regarding this but they are just that not legislation.

A i am playing devils advocate slightly here but it is important that we get the details of they legal situation right. I also think that you and Patrick are correct in the moral obligations of the bank unfortunately these rarely cut any ice in a court setting.

 

 

Canncellation rights on credit agreements are only applicable to those contracts that are signed away from creditors premises and with prior face to face contact with the creditor,in pre distance marketed agreements(Pre2004 Oct).

Some credit card companies give voluntarry cancellation rights and these are to be treated in the same way as if they were granted according to the cca.

See cancelation rights on my agreement unenforceability thread.

 

Shooter

 

If the agreement is none cancellable as yours would be if it was signed on trades premises then neither signature need to be dated.

The creditor may well sign and execute the agrement after you left as long as the document was dated at the same time giving the execution date.

The documnt would not have to be signed by them in your presence however they would have to send you a copy of the executed document if it wasn't section 62.

 

Creditors signatures has always been abit of a grey area although not a prescribed term as someone said in an ealier posting, it could be argued that if the creditors signature was not on the agreement then it was never even executed as per section 61.

 

The worrying thing about this is if you got his into court and pressed the unexecuted agreement angle would the judge rule using section 127 (5) which allows the judge to enforce anagreement even if a term is missing. Using the fact that the agreement was active for a time before it was challenged.

Best regards

Peter

[un1boy]

Hi i just got a response to my cca default letter stating no contract must exist and is unenforceable, they responded with acopy of one of the agreements after committing a criminal offence. trading standards has given me a reference number and contact number if they continue to harass me or process any info or try to enforce it.

 

After reading the agreement they sent me i noticed there are no dates and the apr calculations dont come out the same as the calculator i used on the dti website by about £10.

 

Heres the intersting thing after recieving the copy without the prescribed terms and conditions printed on the back i remeberd were i filed old documents in the garage. I dug them out and got a carbon copy of the original. It is missing a signature from the creditors yet there copy is signed but not dated. So this may be a ccase of fraud and even if it were signed am i right to say it wasnt properly executed due to the fact that there isnt 1 single date anywhere relating to the day it was signed.

 

Also Thames Credit sent me a covering letter which i will post stating that they are not bound by the law of the consumer credit act. I attach for your viewing and comments. I think i might have some fun with this one .

 

 

 

There altered copy to my carbon copy:

P.S. doesnt the APR qualify for extortionate. And i can also post a copy of the original carbon copy missing there signature and some scribles. This was also signed on the premesis.

 

regards,

 

Craig.

 

Firstly Craig, you mite want to remove the card number from the agreement.

 

Secondly, what are these people on? I am sure the Act says that they must provide the agreement, whether they are the orignal creditor or not.

 

Also, they have admitted they bought the debt, so all rights over it get transferred to them - this meanss without the paperwork they have no powers of enforcability. They are talking rubbish.

[Peterbard]

The OFT Guidleines on debt collection state they must suspend colelction activity on the account whilst it's in dispute too.

 

HI Yes uni

 

I mentioned that earlier but that is in the case of a debt collection scenario and they also stress that the dispute must be genuine ie provable.

 

Regards

Peter

[un1boy]

Ok Peter, thanks!!

[Fred_Funk]

Guys

 

Apologies for butting in here but I've not had much luck in getting any response to the following thread...

 

http://www.consumeractiongroup.co.uk/forum/ppi/108287-help-required-london-scottish.html

 

... and - while it's a thread on mis-sold PPI - it occurs to me, some of the issues raised are not dissimilar to ones raised here. With that in mind, I was hoping someone with rather more knowledge of such issues than me might take a look.

 

As often seems to be the case, the credit application form doubled up as an agreement. However, more to the point - at least, I hope it's more to the point - in this instance, there was a box on the application form/agreement accompanied by the following text (the bold italics are my own)...

 

I wish to protect repayments on my Direct Cash reserve with the special Cofidis Payment Protection Plan. The cost of this (80p per £100 outstanding balance) will be included in my minimum monthly repayment.

 

My question is this: are London Scottish permitted to describe their payment protection plan as 'special' when to all intents and purposes it's anything but? I'm not sure of the legal technicalities - which is where I want your help - but, surely, one could argue the use of such an adjective would encourage someone to tick the box when they might not otherwise have done so?!

 

Any help and guidance would be most gratefully received on the aforementioned thread.

 

Fred_Funk

[shooter001]

Hi Peter

 

The agreement I posted was the copy they sent to me after the CCA request. That is the only time I have been sent a copy. If it is true that they can sign it after I leave and then post me a copy out, wouldnt it have to be subject to cancellation rights?

 

Also the APR doesnt work out according to the DTI website calculator. It seems like they have used an APR of 27.8001 or something.

 

If someone was to buy a debt shouldnt they be buying the original agreement also and not requesting a copy. Isnt this in itself an admittance to the breach of the data protectoin act if they have processed any of my information with credit refernce agencies?

 

Thnks for spotting the credit card un1boy but the card is expired and the account is closed so im not too worried about it being on there.

 

regards

 

Craig.

[shooter001]

What you'll find is that they, like Cabot DCA, are saying they are using the purchase of the account as being under the Law of Property Act 1925 where they say they buy the Rights and not the Duties of the agreement. If you search the Cabot threads you'll see what I mean. Trouble is the Consumer Credit Act was brought in to protect the consumer and they seem to ignore this. Also, if you go through all the documentation you have silly things, like Thames Credit being registered under the CCA, so why register if you are not subject to its' laws?

 

Thames Credit have been ' introduced ' to the Cabot Fan Club their Director Mr Lunn having been informed they will be subjected to what Cabot has been if they practice 'bad Practice' - if you are writing you might like to remind him of that. Report everything to the authorities, helps keep them focussed on change.

 

Thanks for the info, I will look into that.

 

regards

 

craig.

[Peterbard]

Hi Peter

 

The agreement I posted was the copy they sent to me after the CCA request. That is the only time I have been sent a copy. If it is true that they can sign it after I leave and then post me a copy out, wouldnt it have to be subject to cancellation rights?

 

Also the APR doesnt work out according to the DTI website calculator. It seems like they have used an APR of 27.8001 or something.

 

If someone was to buy a debt shouldnt they be buying the original agreement also and not requesting a copy. Isnt this in itself an admittance to the breach of the data protectoin act if they have processed any of my information with credit refernce agencies?

 

Thnks for spotting the credit card un1boy but the card is expired and the account is closed so im not too worried about it being on there.

 

regards

 

Craig.

 

Hi yes the letter they sent you made me chuckle complete horse poo.

 

NO if you signed on the traders premises then their are no cancncellation rights.

I cannot make out our agrement but if you would like to email it to me i will have a look.

As regards the APR the regulations say that the accuracy of he APR has to be correct to within .1%below the actual figure or 1% above in order to conform to the cca.

Bearing in mind that this is not an prescribed term if the APR exeeds this criterea it makes the agreement enforceable only by order of the court.If the APR is way out (enough to prerdjudice your decision making process when purchasing the loan then the judge may render the agreement unenforceable under 127(1).

An intersting point you have raised about the new creditor saying that the don't have to abide by the orriginal agreement surely if they don't then neither do you. What they say is all nonsense anyway.

 

 

 

Regards

Petr

[patrickq1]

andrew i also remember some cases being if ©buys (A) debt then sue (B)then be can force (a)to be a material witness and also doing this (A)must then bring all data and breakdowns as well cant remember but will find the case and post it here

[shooter001]

Hi yes the letter they sent you made me chuckle complete horse poo.

 

NO if you signed on the traders premises then their are no cancncellation rights.

I cannot make out our agrement but if you would like to email it to me i will have a look.

As regards the APR the regulations say that the accuracy of he APR has to be correct to within .1%below the actual figure or 1% above in order to conform to the cca.

Bearing in mind that this is not an prescribed term if the APR exeeds this criterea it makes the agreement enforceable only by order of the court.If the APR is way out (enough to prerdjudice your decision making process when purchasing the loan then the judge may render the agreement unenforceable under 127(1).

 

 

An intersting point you have raised about the new creditor saying that the don't have to abide by the orriginal agreement surely if they don't then neither do you. What they say is all nonsense anyway.

 

 

 

Regards

Petr

 

Thanks for the info Peter, what is your email address as I assume your not meaning a private message?

 

regards

 

craig.

[Peterbard]

Hi Craig

 

[email protected]

[patrickq1]

i did not word correctley about the defaults peter sorry it was mis interpreted (gotta learn to spell)what i meant was why are the banks not on experian default register when they have been defaulted by the ordinary folk here and they have been defaulted legaly through the court proccess....so experian and others are very one sided in their processing of our data ..this should be brought up and discussed .an what is the penalties when a PLC does default on debts...

freds trhead look s intresting im going out now will read it later good work guys

[un1boy]

i did not word correctley about the defaults peter sorry it was mis interpreted (gotta learn to spell)what i meant was why are the banks not on experian default register when they have been defaulted by the ordinary folk here and they have been defaulted legaly through the court proccess....so experian and others are very one sided in their processing of our data ..this should be brought up and discussed .an what is the penalties when a PLC does default on debts...

freds trhead look s intresting im going out now will read it later good work guys

 

You could try telling the FSA and the bank of england.

 

Although the penalty any credit license holder has on defaulted/commiting an offence under the act is possible removal of the credit license (although that won't happen).

 

I have had a letter from the OFT though telling me that they are monitioring a major bank's suitability so I now have even more evidence to send them, haha!!

[Peterbard]

What you'll find is that they, like Cabot DCA, are saying they are using the purchase of the account as being under the Law of Property Act 1925 where they say they buy the Rights and not the Duties of the agreement. If you search the Cabot threads you'll see what I mean. Trouble is the Consumer Credit Act was brought in to protect the consumer and they seem to ignore this. Also, if you go through all the documentation you have silly things, like Thames Credit being registered under the CCA, so why register if you are not subject to its' laws?

 

Thames Credit have been ' introduced ' to the Cabot Fan Club their Director Mr Lunn having been informed they will be subjected to what Cabot has been if they practice 'bad Practice' - if you are writing you might like to remind him of that. Report everything to the authorities, helps keep them focussed on change.

Hi Andrew

 

JUst been looking at the thread not seen it before interesting.I see that hey have scrapped the defence based on the Act you mentioned.

The interesting points that is being raised at the moment is Cabots belief that the duties of the agreement arn't passed to them from the original creditor due to the the wording of the defonitions section (189) of the Act. They, if i have this right are saying that because no credit is being passed to them they are not the creditor,they are just chasing a sum of money owed, they are outside the realms of the cca as they are not providing any credit.

This is in my opinion complete b**cks but it just goes to show what lengths these people will go to.The thread is very worth a look at especially the moment.

 

Regards

Peter