Cap1 & CCA return

[noomill060]

Particularly when any agreement you may have is improperly executed at best, and may even be unenforceable.

[JonCris]

And of course sending a default notice is a necessary part of enforcement as laid out in CCA, registering a default against an individual with a CRA isn't.

 

If the OC is in default or unable to produce an agreement it is.

 

Even instructing a DCA whilst in default is unlawful

 

Maybelline

 

A status 8 also means the debtor has made no attempt to contact the creditor & has ignored all attempts at communication

 

We of course know that most often this is untrue but then since when have the DCA's or the CRA's bothered adhering to the rules

[maybelline]

joncris, I didnt know that, I would say that is so open to interpretation, what justifys ignored all attempts, and is it either/or, since one part of the status 8 argument conflicts with another.

[maybelline]

http://www.experian.co.uk/downloads/consumer/creditFileExplainedJuly07.pdf

 

was looking at this from their website, so status codes are not all the same depending on the type of account or overdraft it relates to!

[lookinforinfo]

Noomill060, I have seen no pronouncements from the ICO that contradicts the

information from their DPA guidelines.

Could you enlarge on your experience with them where you think that they

have deviated from their rulings?

[noomill060]

I'll go through my emails from them and get back to you.

 

Generally they seem to liberally interpret the lender's right to process data to CRAs concerning alleged defaults on the grounds that lenders need the data to consider whether to lend to an individual and that this overides an individual's rights to privacy, even though the individual informs the ICO that the lender is in default of a s.78 request, or whether the agreement is improperly executed or even unenforceable due to s.127(3)

 

As long as the lender confirms the data regarding the borrowing is correct, the CRA and ICO are happy to process and allow processing.

[maybelline]

I am about to send some info received under SAR from a creditor to a CRA to prove what they have supplied to them is incorrect, do they take any notice of the account holders info supplied?

[elizabeth1]

I am about to send some info received under S.A.R - (Subject Access Request) from a creditor to a CRA to prove what they have supplied to them is incorrect, do they take any notice of the account holders info supplied?

 

 

Well - not on days thet end in a " Y " :lol: They don't take notice of anything really do they?

 

Post it anyway by recorded delivery - if nothing else you tried? I don't know what is the matter with lots of these companies - it's like they all gone deaf, dumb and blind?

[lookinforinfo]

Noomill060 there are contradictions in their legal guidance notes-I am thinking

specifically of when they rule on "Consent" and when permission is important

and when they feel it is not necessary.

 

On many occasions it will be the case that companies will have a legitimate

interest in processing data and the Information Commissioners Office seem very keen on parotting screeds

of their own guidance notes possibly to avoid making a decision themselves.

And while the legitimate interest angle may well exist in every case, there

will be times when the data that is being used is either unfair or unlawful in the first place. A fact that certain Information Commissioners Office officials have probably failed to notice.

 

If you are in that situation it might be interesting to go back and agree that

while in many cases the legitimate interest of the company allows them to

process data, by the ICOs' own guidelines they are precluded from processing the data because it is unfair or unlawful and that overrides companies legitimate interests.

The tricky bit may well be getting them to admit they have made a mistake-

officials don't like doing that. So tact and diplomacy may be required when

attempting to get them to agree with your understanding of their guidelines.

 

And never underestimate the power of financial institutions, CRAs and DCAs to

maybe not coerce, but certainly influence, the way in which particular areas

of doubt can be interpreted. Some of these companies are in touch with

the Information Commissioners Office etc perhaps on a regular basis and so it becomes possible then either

over dinner or an invite or tickets to some function say [sports or music for

example] to get officials to come round to their way of thinking.

[patrickq1]

hence the reason i have been bangin on about the processing of data ..it should be a seperate contract and should never be allowed on any credit aplication nor contract...this is one of the reasons i say about the charter petition it should be on thier no rights to process information without a court order then the finance co/bank would have to prove the debt it would be pointless informing the FSA as they would favour the banks /finance I wonder why.since they have already got a done deal with the stay and court action to discover that they are actin in good faith seems TRANSPARENCY part went out the window on the second statement produced by the FSA,when we all consider the TRANSPARENCY as being gettin to the truth IE BANK CHARGES ETC

And never underestimate the power of financial institutions, CRAs and DCAs to

maybe not coerce, but certainly influence, the way in which particular areas

of doubt can be interpreted. Some of these companies are in touch with

the Information Commissioners Office etc perhaps on a regular basis and so it becomes possible then either

over dinner or an invite or tickets to some function say [sports or music for

example] to get officials to come round to their way of thinking

THIS goes without saying a cosy cosy situation

if anyone was taking anyone to court for CLARITY and TRANSPARENCY i suspect it should have been TS AND ICO but sadly they do not know what their own advice is

i think none of us have a cat in hells chance of getting satisfaction because of they way all this was announced,it cut a wedge right through our RIGHTS TO TRANSPARENCY FAIRNESS AND JUSTICE,perhaps they will get the judge from HULL who already ruled in the banks favour only for it to be overturned and when people started to scream you will notice the only way to difuse the situation was to announce that a HEARING will take place to see who is right and wrong but right and wrong over what,certainly not TRANSPARENCY..we are having the wool pulled over our eyes,we have been tricked into beleiving that fairness and transparancy will be the order of the day...TRANSPARENCY is no longer an issue,because it has been dropped from the mandate

[patrickq1]

I am also slightly angry that CAG has not stood up to this abuse of power,a new charter /petition should be in order to stop all abuses that we have seen take place especially over this last twelve months so much so that the banks/finance co and DCA are making an ass of the law WHAT LAW they are useing the system to their own advantage and it is time the ICO AND TS got their act together and put the finance co and all the rest in their place..once and for allfor whatever reason why have the ico & ts NOT BEEN CLEAR ENOUGH AND ASKED THE SIMPLE question LETS SEE HOW YOU WORK OUT YOUR ACCOUNTS TO JUSTIFY THIS CHARGE/PENALTY they can do this without any such order from courts..is it such a difficult question to ask? i will let you all ask amongst yourselves as to WHY NOT

[wakieblue]

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/107305-egg-capquest-arc-mess.html

Hi VV,

 

Thanks for your advice. I haven't sent a 'prove it' letter to Egg yet but I will do that today. I'm also going to send another letter to Crapquest telling them that they have failed to comply with my CCA request on two occasions and the account is now legally unenforceable. I'll see what happens then.

 

Do you think I should send any letters to H L Legal?

 

Wakieblue.

[Peterbard]

HI

Some time ago i sent a request to Lacors regarding their letter suggesting that in there view the practice of creditors passing data relating to agreements that were unenforceable was inapropriate.

They said they would pursue the matter with ICO and publish the response.

I recieved the following response earlier this week it was sent fom the ICO to Lacors and forwarded to me.

 

From: Carol Hufton [mailto:[email protected]]

Sent: 17 August 2007 11:11

To: Robert Kidd, LACORS

Subject: RE: unenforceable credit agreements

 

 

Dear Robert,

I am sorry for the delay in answering your email.

The current position is that I am waiting for a response from the OFT. They took the matter to their policy committee twice and it was clear that they were supportive of LACORS view. My understanding is that they intended to raise the matter with the mail order industry in particular, although others may of course be involved. Reporting defaults to credit reference agencies is a matter that lies with us. Nevertheless we returned to the OFT to ask for an approximate timetable for their negotiations because we thought that it needed a co-ordinated approach. This was in April if my memory serves and I have chased a response recently. Unfortunately I have not yet had a response – but will contact them again. We are ready to initiate negotiations – which will have to involve those who file information as well as the agencies who receive it. There will be implications for the rest of the business community who share information with the credit reference agencies. It is the knock on effect that makes us feel that the practice as a whole should first be raised directly with those who continue not to get a properly executed agreement before we try to deal with the consequences – otherwise we are continually fighting against the odds and it could have undesirable consequences to raise the matter with a wider audience before the core problem is resolved.

Like you I am anxious that we make progress and I will contact the OFT again.

Carol

It would seem from this that ICO suport Lacors and our contention however there seems to be a bit of buck passing as they still have not made a possitive statement to the affect that creditors should not pass on information relating to agreements that are unenforceable.

I will continue to pursue and keep all informed

Regards

Peter

[JonCris]

Great Peter.

 

However one problem faced by complainants appears to be that when contacted on just this subject staff at the Information Commissioners Office continually state that a creditor has the right to process data even though they don't have an enforceable agreement or even have one.

 

Now that the 'cat's out of the bag' the Information Commissioners Office need to get their house in order.

 

Would you object that the next time a member of Information Commissioners Office staff make such erroneous statements that your letter be cut, pasted & sent to that staff member in order that they might like to revise their advices to the general public

[noomill060]

Thanks for the update, Peter.

 

Reading between the lines, it looks like they will eventually make the right decision.

[Peterbard]

Great Peter.

 

However one problem faced by complainants appears to be that when contacted on just this subject staff at the Information Commissioners Office continually state that a creditor has the right to process data even though they don't have an enforceable agreement or even have one.

 

Now that the 'cat's out of the bag' the Information Commissioners Office need to get their house in order.

 

Would you object that the next time a member of Information Commissioners Office staff make such erroneous statements that your letter be cut, pasted & sent to that staff member in order that they might like to revise their advices to the general public

Hi

 

Not at all jon

 

Best regrds

Peter

[maybelline]

good to see their is some progress on this, thanks Peter:) I like the cut and paste idea.

[noomill060]

"Reporting defaults to credit reference agencies lies with us. Nevertheless we returned to the OFT to ask for an approximate timetable for their negotiations because we thought that it needed a co-ordinated approach. This was in April if my memory serves and I have chased a response recently. Unfortunately I have not yet had a response – but will contact them again. We are ready to initiate negotiations – which will have to involve those who file information as well as the agencies who receive it."

If they havent recieved a response from the OFT by now, it would seem that they dont share their view that this requires a "coordinated approach".

 

As they say: "Reporting defaults to credit reference agencies lies with us"

[Peterbard]

Hi

Noo

This is the point i have raised in my response.

It seems to me that they are looking for a rubber stamp of approval from the OFT and are trying to enlist them in enforcing any prospective acton before absolutely comiting themselves.

However it does seem that they aggree with the Lacors view at least in principle.

It would just be be nice to have a definative statement

 

Regards

Peter

[MoonHawk]

Thank you for the work you are doing Peter. Great as usual.

 

However one problem faced by complainants appears to be that when contacted on just this subject staff at the Information Commissioners Office continually state that a creditor has the right to process data even though they don't have an enforceable agreement or even have one.

It is staggering how much training they need

 

Here is another point to consider from the "Data Protection Act 1998 Legal Guidance":

 

We have already talked about the first paragraph in the section on lawfulness:

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 termapplies 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.

 

Reading further on in the same section, on page 28 they say:

There are circumstances where an obligation of confidence arises between a data controller and an individual about whom information is recorded, for example, in relation to medical or

banking information

.

The effect of an obligation of confidence is that a data controller is restricted from using the information

for a purpose other than that for which it was provided

or

disclosing it without the individual’s permission

.

It would be unlawful for a data controller to do this unless there was some overriding reason in the public interest for this to happen.

Where such personal data are processed for a purpose other than that for which the information was provided, the processing is likely to be unlawful processing

.

 

Now unless they can produce an agreement signed by you, that also shows you have given permission for them to process and pass on your data, then once again it should be deemd as unlawful by the Information Commissioners Office. The only possible argument is that it is in the public interest, and frankly to me the interests of financial organisations (or any business) can not be interpreted as 'public interest'.

 

Best Wishes

MoonHawk

[Jeff2000]

Thank you for the work you are doing Peter. Great as usual.

 

It is staggering how much training they need

 

Here is another point to consider from the "Data Protection Act 1998 Legal Guidance":

 

 

We have already talked about the first paragraph in the section on lawfulness:

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 termapplies 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.

 

Reading further on in the same section, on page 28 they say:

There are circumstances where an obligation of confidence arises between a data controller and an individual about whom information is recorded, for example, in relation to medical or

banking information

.

The effect of an obligation of confidence is that a data controller is restricted from using the information

for a purpose other than that for which it was provided

or

disclosing it without the individual’s permission

.

 

It would be unlawful for a data controller to do this unless there was some overriding reason in the public interest for this to happen.

Where such personal data are processed for a purpose other than that for which the information was provided, the processing is likely to be unlawful processing

.

Now unless they can produce an agreement signed by you, that also shows you have given permission for them to process and pass on your data, then once again it should be deemd as unlawful by the Information Commissioners Office. The only possible argument is that it is in the public interest, and frankly to me the interests of financial organisations (or any business) can not be interpreted as 'public interest'.

 

Best Wishes

MoonHawk

 

 

Hi,

 

 

IMO absolutely spot on!!!

 

 

Regards, Jeff.

[elizabeth1]

Moonhawk - that is Brilliant!!! Well Done you!!

[patrickq1]

thank you both peter and moonhaw,still their is need for this to be clarified with regards to the ,IMPLIED STATEMENT OF TERMS IN THE CONTRACT of their right to process your data this is a non negotiable term and also should be deemed an unlawful term because you are not allowed to negotiate this term it is a forcefull clause ,but some people are of the beleif of (caveat something i cant think of the full and proper term "let the buyer beware" )this is the part that is allowing unlawful material to be passed not only is it passed to a third party it is passed to all and sundry institutions regardless of the act,i also can remember the time when the bank had to ask your permission to make enquiries.in 1992 i asked the bank for a refference about a customer of mine (who banked with this bank same as me) to see wether he was good for the credit of £5000 on the sale of my products,he came back with a report he was good for the money at that time,i got this persons cheque and it bounced on me ,and i was left 5000 worse of but they covered themselves by saying at that moment in time i banked same day...so it was my loss.needless to say i never ever got my money back,but it is my loss but it is also part of a claim i have against this particular bank...

[vinegarvera]

Hi VV,

 

Thanks for your advice. I haven't sent a 'prove it' letter to Egg yet but I will do that today. I'm also going to send another letter to Crapquest telling them that they have failed to comply with my CCA request on two occasions and the account is now legally unenforceable. I'll see what happens then.

 

Do you think I should send any letters to H L Legal?

 

Wakieblue.

 

 

I may be wrong Wakieblue but I think Capquest/ HL legal are one and the same! check the address I think it is Crapquest's " legal Department" ( I use the term losely)!!!

[maybelline]

There will be implications for the rest of the business community who share information with the credit reference agencies. It is the knock on effect that makes us feel that the practice as a whole should first be raised directly with those who continue not to get a properly executed agreement before we try to deal with the consequences – otherwise we are continually fighting against the odds and it could have undesirable consequences to raise the matter with a wider audience before the core problem is resolved.

 

hello, what does this extract mean exactly, those who continue not to get a properly executed agreement? also the undesireable consequences sounds serious?