Cap1 & CCA return

[spiritgirl59]

I have just received my Crapital One CCA request today after they committed an offence. I have posted a lin kto the copy below.

 

http://i202.photobucket.com/albums/aa43/shooter8777/capitalonetermsandconditionsjpg.jpg

 

Is this what you have received also? It has my name on this print out but It has no signatures or anything. I believe its just been freshley printed to try and fobb me off. Either they think im stupid or the executive office manager is stupid.

 

In the letter he states;

 

"You requested copies of the executed credit agreement and a statement of your account under sections 78 of the consumer credit act 1974.

 

Please find enclosed a copy of the current terms and conditions of your agreement in compliance with section 78 of the consumer credit act 1974."

 

Hi Shooter & all those having problems with Crap1

 

Shooter I have received the exact same rubbish as you and they have told me that is their "final response". I have also received a letter from them enclosing a "sample" of what my "new credit agreement" will look like from September this year ...in other words they know for a fact that they are providing unenforceable documentation right now, and they fully intend to address this fact in September.

 

I fully expect them to send me a "new credit agreement" in September and ask me to sign it and I will take great delight in refusing and telling them in no uncertain terms that I have no intention of signing anything. A properly executed agreement should be available now if they are alleging I owe them a debt, and not suddenly appear in September for me to sign!!

 

Crap1 are a joke, but unfortunately its no longer funny. I have a file full to bursting with the rubbish they have sent to me since I first CCA'd them early this year.

 

I have done what Maybelline has done, and made that MY final response to them.

 

Good luck!

Love Spiritgirl x

[the main man]

Hi Shooter & all those having problems with Crap1

 

Shooter I have received the exact same rubbish as you and they have told me that is their "final response". I have also received a letter from them enclosing a "sample" of what my "new credit agreement" will look like from September this year ...in other words they know for a fact that they are providing unenforceable documentation right now, and they fully intend to address this fact in September.

 

I fully expect them to send me a "new credit agreement" in September and ask me to sign it and I will take great delight in refusing and telling them in no uncertain terms that I have no intention of signing anything. A properly executed agreement should be available now if they are alleging I owe them a debt, and not suddenly appear in September for me to sign!!

 

Crap1 are a joke, but unfortunately its no longer funny. I have a file full to bursting with the rubbish they have sent to me since I first CCA'd them early this year.

 

I have done what Maybelline has done, and made that MY final response to them.

 

Good luck!

Love Spiritgirl x

 

 

I first complained to TS in June about the crap agreement Cap1 sent me and am waiting on a decision from them as to whether or not it is enforceable(although it isn't!)

 

The problem is that I have also received the letter with the new sample of the credit agreement that comes into force in September, and as my complaint has dragged on for so long I am fully expecting TS to come back to me next month and say that Cap 1 have complied and then conveniently wash their hands of my complaint! I may be wrong but just have had this feeling that TS have been playing for time

[Peterbard]

Hi

Re post 8728

Letter forom lacors

here is the reply i sent

Hi Robert

Thank you for your e-mail.

I was a little confused by the response from the ICO does this mean that they support the contention that the practice of passing data relating to unenforceable agreements is unacceptable as we believe and they awaiting the OFT to rubber stamp the decision surely as they say the matter lies with them, is it not possible to get a definitive statement?

Reading between the lines it would seem that they do indeed support the contention but require the OFT in order to enforce is this correct analysis.

Best regards

Peter

I recieved this from lacors last week

Hi Peter,

I do believe they support our view that recording defaults on unenforceable agreements is unacceptable. I think what they are saying is that the matter needs to also involve the OFT, and consequently other stakeholders, because it is these bodies that control what constitutes 'unenforceable;' the ICO merely controls the recording of the data. I believe your last supposition to be correct.

Best regards,

 

Rob Kidd

Policy Officer

020 7665 3867 (t)

020 7665 3887 (f)

So far so good

I will keep all informed

Best regards

peter

[Peterbard]

still trying to figure out how compound interest works but alarminly found a tool on a website for mortgage and will pay back 116K for a 35K mortgage from GE??? have I got that right eeeek.

 

H Mab

 

Sorry to be so long getting back but i have been laid up again!!

 

To compound interest you simply multiply the amount to be incremented by 1 +the percentage interest.

 

so if you wan't to compound 100 by 20% you do 100*1.2.to compoumd for the next month you mutiply the result of the above by 1.2 again and again for as many months as it needs to be compounded.

 

Hope this helps and i am not trying to teach my grandma etc.

 

Best regards

Peter

[Maggiebroom]

I first complained to TS in June about the crap agreement Cap1 sent me and am waiting on a decision from them as to whether or not it is enforceable(although it isn't!)

 

The problem is that I have also received the letter with the new sample of the credit agreement that comes into force in September, and as my complaint has dragged on for so long I am fully expecting TS to come back to me next month and say that Cap 1 have complied and then conveniently wash their hands of my complaint! I may be wrong but just have had this feeling that TS have been playing for time

 

Hi Mainman

 

My local TS have stated to Capital One that they think they have complied with the CCA by sending me a copy of the application and recent T & C's

Having read about this letter that Crap 1 are sending out regarding new sample credit agreements, I shall await mine with interest. Surely the answer to that is this.

 

"I will not sign a new agreement when you are claiming that the one you sent me is legal. This means I have no need to sign a new agreement. Please take me to court so the Judge can decide this"

 

As for TS. I think you may be right. They obviously have no knowledge of the law. Mine has done me no favours at all as now my harassing phone calls have renewed with vigour. A very strong letter has gone of to them along the lines of the sample you gave me on my thread and also detailing the harassment of debtors section of the admin. of justice act. Lets hope the stupid woman will change her mind and apologise for the wrongful information and further harassment she has caused me. Somehow I doubt that I will hear a word from her though. I shall be making an appointment to see her boss.

 

maggiebroom

[spiritgirl59]

Hi Mainman

 

My local TS have stated to Capital One that they think they have complied with the CCA by sending me a copy of the application and recent T & C's

Having read about this letter that Crap 1 are sending out regarding new sample credit agreements, I shall await mine with interest. Surely the answer to that is this.

 

"I will not sign a new agreement when you are claiming that the one you sent me is legal. This means I have no need to sign a new agreement. Please take me to court so the Judge can decide this"

 

 

 

Very good point maggie, I shall remember this for my reply when Crap1 send me a "new agreement" in September for me to sign

 

Love Spiritgirl x

[elizabeth1]

I think the problem we have with the TS is they don't always fully understand the CCA and what it entails. Similarly with the Judges who are handling these cases/claims etc..

 

From my own experience in helping my hubby with some of his stuff and my own Cap1 card etc.. I found that it is easy to let these companies "cloud issues" by their constantly refering to other irrelevant acts fo law and other paperwork etc.. (Deed of Assignments, defaults, sale agreements, LoP Act etc..) this stuff is horrendous for anyone dealing with it.

 

My advice to anyone who who is dealing with issues surrounding the CCA is to keep it simple and don't lose sight of that Document - it is the basis to everything else that is going on with many of these claims whether it be with the original lenders or a DCA. The CCA IS THE FOUNDATION DOCUMENT WHICH IS IN DANGER OF BEING OVERLOOKED IF FOCUS IS LOST.

 

I went to court with my husband last Thursday and the CCA was the doucment I wanted focus upon - my thread is linked here where I show you how I kept the focus on this document and managed to get an order for the documents to be shown. This should help a few readers to plan their cases/claims in a similar way to get a similar result.

 

http://www.consumeractiongroup.co.uk/forum/cabot/111844-another-cabot-court-case.html

 

My advice to anyone is to keep it simple and keep dragging it back to this document - everything else is irrelevant until this document is in place as the basis of cases/claims.

 

In my hubbies claim - once we know whiat is shown for the CCA we can then act accordingly and move ahead with the remainder of claim.

[TideTurner]

Spiritgirl,

 

Surely when they are looking to form a new agreement, they must first get themselves (or buy themselves out) of the first agreement, and then renegotiate a new deal (with your agreement).

 

They cannot simply say that the terms will change in September without a new agreement. This will need both signatures.

 

Tide

[rich2568]

Hi Peter

 

Are these EGG agreements lawful at all?

 

In my case what they have sent me is a 2 page copy and with no cancellation rights on it.

The card was granted and accepted over the internet.

 

You will need to zoom into each document with your mouse.

http://www.knowledgecommunity.co.uk/cag/eggagree1.gif

(Page 1)

 

http://www.knowledgecommunity.co.uk/cag/eggagree2.gif

(Page 2)

 

There supposed to be an attached set of T & C`s- named the Egg Card Credit Agreement Conditions, of which it quotes- but I never received these in my request for an original CCA.

 

Egg have since stated that these T & c`s will be descriptive within my S.A.R. which I am still waiting.

 

 

Any ideas??

[monopoly23]

Is there anyone you can actually complain to to get your credit file accurate again? If you're defaulted by a company, the CRA's take their word as law and you can't get the company to remove it without going to court so who can actually do something about it?

 

If they've defaulted on a legal request themselves and default you in return, continue adding interest and charges, continue to demand payments and send threatening letters, where should be the first place you report it to?

[Peterbard]

HI

Have you tried complaining under section 159 of the cca.

if the entry is inaccutrate theyare constrained to modiy it or remove it in theory.

I am struggling with brithish gas at the moment to get an erroneous report removed .I signed no contract and the amount £76 was in dispute anyway.

Their Mr Hancock is completely working on the creditors behalf, in ther response to my initial complaint and said that "British gas would not open anaccont without my signature"

A bit partisan for an unbiased review of the evidance offered i think.

I am taking thek to court i see no option i hve drafted a letter to there data controller and will post it on tuesday.

 

Regads

Peter

regards

Peter

[Peterbard]

"I think the problem we have with the TS is they don't always fully understand the CCA and what it entails. Similarly with the Judges who are handling these cases/claims etc.."

 

Hi

A damming endibtment on the body whichis suposed to regulate and enforce the CCA and ablolutely true.

I am compiling a letter of complaint to the DI regarding the advice given by the TS and the Information Commissioners Office on the matter of section 77-79 requests and would appretiate any letters or e-mails recived from them stating that either T and cs are acceptable or any other such nonsense,

Pleas send to

[email protected]

[Peterbard]

Is there anyone you can actually complain to to get your credit file accurate again? If you're defaulted by a company, the CRA's take their word as law and you can't get the company to remove it without going to court so who can actually do something about it?

 

If they've defaulted on a legal request themselves and default you in return, continue adding interest and charges, continue to demand payments and send threatening letters, where should be the first place you report it to?

 

Hi I located this orriginali posted by Sulybond (Master of the DPA) ishall be drawing on it extensively ithought it may be of some use.

 

Basic things to remember about this whole process:

 

a) Remember that the three Credit Reference Agencies (CRAs), Experian, Equifax and CallCredit were not constituted by an Act of Parliament. They hold no official Govt. power even though they like to think they do.

b) The CRAs are corporations who simply have the technology to store vast amounts of data and have been doing so for years.

c) The banks and lenders supply them with information about your accounts not because they are legally allowed to, but simply because YOU agreed to it via your contract.

d) CRAs are allowed to hold any data about you that is deemed in the public interest or in the public domain. Things like Bankruptcy Orders and Discharges, CCJs, IVAs, etc. are public information, and you cannot stop CRAs holding this information. You can ask them to mark them as settled, but they do have legal right to hold JUST these on their records because there are actual Laws that allow them to do so, and judges have signed the Orders in all these types of cases. However, agreement 'defaults' do NOT come under those Laws, unless they have been progressed to a CCJ, etc.

e) Civil contract details cannot be stored unless you agree in writing. The Data Protection Act states clearly that your account information is personal data and only you have the right to determine who may collate, process and disclose it.

f) When CRAs reply with “it’s our legal right” they are talking nonsense. The legal to which they refer is simply the ‘lawful right’ because you gave permission. That permission can be withdrawn at any time according to your rights under the Data Protection Act.

g) You are also allowed to tell any Data Controller (a company that processes or stores your data) to cease to process your data in any fully-automated process. The Data Protection Act states quite clearly that this includes processes that e.g. “affect your creditworthiness”. The actual clause is in the template letter.

h) If you decide to opt-out of auto-processing, then you may opt back in again later.

i) To ask a Data Controller to do anything you want them to do, including requesting bank statements, you send what is called a Data Subject Notice – you are known in the Act as the Data Subject – i.e. the person to whom the data refers.

j) Data is anything on computer disk, paper, etc., that can identify you as a individual person. “all 34-year-old architects” is not personal data, but “Mr A N Other, a 34-year-old architect from 16 Acacia Avenue, Anytown, AnyPostalCode” is personal data as it can identify a particular person.”

k) Your contract and all transactions relating to the running and administration of your account is deemed your personal data, as these may be subsets referenced by an account number that, in turn, can be linked to you.

l) All Data Controllers have a duty to protect your data, and must hold a Data Protection Act licence (issued by the Information Commissioners Office) to hold and process data. However, this licence does not allow them to disclose data without your express written permission – it is a criminal offence to do otherwise, except for reasons of national security, taxation, health, etc.

 

There is loads more on the Data Protection Act specifics and I might edit and add to this post as time goes by. The above is to give you the basics and the understanding of how to use this in the method below.

 

The Default removal method.

My contention is simple…

1) Data Controllers (e.g. the banks, CRAs) have no legal right to collate, store, process or disclose your data without your permission, except data clearly in the public domain.

2) But, you give that right to them when you sign your contract – most paperwork includes clauses such as “You allow us to disclose details about the conduct of your account to CRAs, etc….”.

3) That contract becomes Law under contractual LAW…however it is still under the ultimate authority of English Law. Any disputes have to be negotiated or referred to Court for a decision.

4) Once the contracts ends, nearly all the clauses also end. The lender does have some rights to prove monies owed and then pursue them lawfully, but my argument is essentially that other clauses all end, and the lender cannot arbitrarily choose to assume that the disclosure of Data clauses can carry on. This is a proposed change of contract that they are trying to impose and is therefore unfair and unenforcable under the UTCC Regs.

5) If they then continue to disclose data about you to a CRA, they are doing so without your permission, as your permission expired in the termination of the contract.

6) You can then serve them with a Statutory Data Subject Notice asking them to desist from doing so.

7) The Data Controller then has 21 days in which to conform to your request, or write to you giving lawful reasons as to why your request should be exempted. To do so, he would have to prove a legal Statute, a Common Law case, etc… but none exist. So, they simply turn around (especially the CRAs) and say that they have a “legal right”. They don’t…they are simply stating that they believe that they have a ‘lawful right’ under the contract Law that you agreed when you signed the contract.

They also use other nonsense expressions such as “under credit law”, “six-year permissions”, etc… There is no credit law permission, and the Data Protection Act over-rules contractual Law when it comes to your rights.

The six-year ‘rule’ that they so liberally quote, is them simply getting confused with County Court orders… such as bankruptcy, CCJs, that only a judge can sign.

Banks and CRAs cannot sign Court orders.

8 ) If the Data Controller fails to show reasonable cause to try and exempt your Notice, then you may go straight to the Information Commissioners Office and ask them to enforce your Notice. You will need to put all the correspondence together with a covering letter.

9) You may apply for compensation, only if the incorrect data has caused you financial loss, or other significant inconvenience whilst the incorrect data was used in a process that affected you.

10) You can also go straight to the Court and issue a Court Claim to ask a judge to enforce your Notice. You will have to pay a fee, but you can claim this back from the Data Controller if you win. You can also apply for compensation on your Claim – again reasonable costs, damages, etc.

11) Damages claims have to be very clear that they caused inconvenience and hardship or distress, so use sparingly. At the end of the day, your primary mission is to remove what you consider is adverse data, not start going off on one for compensation, so stick to your basics first.

 

 

Finally, a few simple rules, that will help your case appear more professional:

1) Check your spelling and grammar – it is shocking to see some very basic mistakes, and it doesn’t give a very good impression if you make basic errors like your and you’re, there and their, etc.

2) Send ALL letters (without exception) via Recorded or Special Delivery, and keep a copy, and keep the Post Office receipts and stamped labels. They CANNOT argue if you can prove they got the letter. If you fax anything, keep the send confirmation sheet (sometimes called the transmission journal) – press the button the machine to print one.

3) If you phone anyone to discuss the case, use a program like SkyLook (available on this website) to record your calls. Note that it is NOT illegal to record your own telephone conversations – even though the uneducated Muppets in call centres try telling you otherwise. After all, they often record your conversations!

 

The best of British luck, and let’s see if some more wins start coming through – I am working on other aspects of the Data Protection Act and will keep you informed as to how they progress. And remember, that most of this really gets down to who blinks first... they know they don't have a prayer, which is why they are coming up with grasping-straws excuses. Be prepared to take it to Court, or at least the Information Commissioners Office...who knows, we could even end up with a case law in our favour if it went to the right Court.

 

So, to the letter itself…

 

The following was an amalgamation of several previous letters that I had sent for my own cases. This version was written for a friend who is having hell with a bank that adamantly refused to remove a default, and the CRAs involved had written back with many stupid replies that didn’t mean anything, or answer the question.

 

Within 72 hours of it being received at their Head Office, we received a letter saying that they were happy to remove the default from the credit files, although denied any liability for distress, or breach of duty in relation to the Data Protection Act.

 

 

The Company Secretary

GrabItAll Bank plc

Large Ugly Building with nice view of Thames

Somewhere in London

Postcode

[must go to their company registered address!]

 

[Date]

 

 

Dear Sir,

 

Re: Formal notice to desist from processing or disclosing personal subject data

 

I have recently conducted an audit of my personal credit reports supplied by Experian, Equifax and CallCredit.

 

It is noted that there exists, within all three files, an entry referenced as “xxxxxxxxxxxxxx plc” indicating a former xxxxxxxx Loan (now closed) of £x. This is recorded as “In Default” albeit showing a settlement date of dd/mm/ccyy.

 

I am contesting that xs’ continued processing of my data is an unwarranted act and I enclose a Statutory Notice to that effect, which is deemed served as of the date noted on the Royal Mail's Recorded Delivery service audit.

 

My written permission allowing x to continue processing, or disclosing, my personal subject data was revoked upon termination of that original contract and I hereby reiterate that revocation. I also do not recall receiving any such Notice of Default being served on me, as required by the conditions of the Consumer Credit Act 1974. Unless the Bank can provide a true copy of the said Notice, then I consider that any default entry on my credit files to be wholly unwarranted.

 

However, if you can supply the copy, then I also contest xs’ continued processing on the following grounds.

 

As you are aware, I am afforded principled rights under the Data Protection Act (Data Protection Act), Schedule 1, Part 1 ("The Principles") in relation to the manner in which my data is collated, stored and processed. Of particular note, are Principles 3, 4 and 5:

 

“3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.

 

4. Personal data shall be accurate and, where necessary, kept up to date.

 

5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”

 

In my case, x is still processing data after the cancellation of the contract, whether or not this is a simple renewal process of the default flag, daily or by other timing factor. As that contract is no longer in situ, then my written permission has also ceased from the date of cancellation.

 

This is confirmed in Principle 2 of the Data Protection Act, which states:

"2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes."

 

I emphasise the term "specified and lawful purposes" as in ‘those specified within the contract’, and no more. I also emphasise the term "shall not be further processed".

 

I have taken the matter up with the Credit Reference Agencies, and they had claimed that they had a

“legal right” to maintain this type of adverse entry for up to six years. When I challenged them to quote me the exact Statute that includes this so-called “legal right”, they remained remarkably quiet. Only after my continued insistence of disclosure did they eventually concede that, whilst they have no statutory right, it is

“standard industry practice” but they added that they are “allowed to by Law”. After further challenges, they finally admitted that unless this was a County Court issue, their term actually referred to contractual Law, but continued to emphasise that it was “standard industry practice to record default entries for six years.”

 

As a highly-educated company secretary for a major PLC, may I respectfully presume that you likewise recognise that “standard industry practice” does not correlate with “legal right”?

 

Further investigation has also led me to conclude that the only six-year data ‘retention rule’, to which they may adhere to, is in relation to information in the public domain, e.g. Bankruptcy Orders/Discharges, IVAs, CCJs, etc. These are kept in the public domain for six years. But, these are sealed orders issued by a judge through the Courts who oversee the ultimate jurisdiction in all matters relating to Law, be it the criminal code or the Common Law. It is not up to Credit Reference Agencies, or lenders, to decide legal issues.

 

In addition, the agencies may also hold information that is deemed ‘in the public interest’ for the avoidance of credit fraud or deliberate repayment avoidance; I refer, of course, to CIFAS and GAIN entries on a credit file. My former account was not subject to any such marker, nor is my former civil contract with x a public matter.

 

After scrutiny of all the relevant legislation, including the Consumer Credit Act (As Amended), the various Financial Services Acts and the Data Protection Act, etc., it is clear that there is absolutely no legislation that allows a lender or supplier (e.g. x) to collate, process or distribute any other information unless there is express written permission from the data subject.

 

In fact, Section 10 of the Data Protection Act awards the real authority, regarding privacy of data, to the data subject, not the Data Controller. The Act is also very clear as to the rights of the data subject in respect of withdrawing permission to continue data processing and disclosure:

 

10. - (1) Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons-

 

(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

 

(b) that damage or distress is or would be unwarranted.

 

However, there are some exclusion provisions for Data Controllers, and Section 10 does continue with various exceptions to subsection (1) above, and these are quoted, in full, below:

 

10. - (2) Subsection (1) does not apply-

 

(a)in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met,

or

(b)in such other cases as may be prescribed by the Secretary of State by order.

 

To paragraph (b), I can only presume that x has not applied to HM Secretary of State for an order allowing you an exclusion, which leaves x with the only remaining possibility of requesting an exemption under paragraph (a).

 

So, we must turn to the exemptions permitted in paragraph (a) to find where xs’ Data Controller may invoke his perceived exemption to the Data Protection Act, namely, those listed in paragraphs 1 to 4 of Schedule 2. I have reproduced these exemption paragraphs, in full, below:

 

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

2. The processing is necessary-

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

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

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.

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

 

It is my contention that xs’ supposed right of obtaining an exemption is not contained within any of these paragraphs. I have followed each in turn with my notation to give a clearer explanation, should there be any lack of clarity.

 

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

 

That consent was terminated upon the cessation of the contract and, as stated earlier, I reiterate the revocation herein, and by the attached Statutory Notice.

 

2. The processing is necessary-

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

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

 

For (a), there is no contract being performed, and for (b), x and I are not entering into any form of contract, and certainly not at my request.

 

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.

 

According to the Information Commissioners Office (I.C.O.), exemption 3 includes all other statutory obligations for which the interests of national security and welfare override personal privacy.

 

These obligations allow for the provision of data to Official agencies and organisations, e.g. disclosure to crime prevention agencies (Police, Intelligence Services, etc), official Government agencies (DVLA, DSS, Passport Agency, etc.) and health authorities, etc., and for any other purpose not agreed within a civil contract.

 

We all know that the three major credit reference agencies are not Government bodies, nor official agencies, but for-profit companies, even though they like to think they are official. None of these three agencies are listed in the appropriate Data Protection Act Schedule that names the specific organisations that are permitted any such exemption rights.

 

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

 

With reference to the I.C.O. again, this is interpreted as anything that affects the data subject as a matter of life and death. This clause is included in the Data Protection Act to permit data, like medical records or contact details, being disclosed in emergency situations. I do not believe that my former account details could be described as anything like a matter of life or death.

 

So, it is clear to see that there is neither statutory provision permitting xs’ Data Controller to assume continued processing rights of my data at his discretion, nor any exemption. I can then only assume that x is relying on the Common Law, and contractual law, as determined by the contract that both parties originally agreed.

 

However, the contract that I originally signed with the bank, only gave x permission to process data during the term of that contract. I think it is fair to assume that you agree that the contract was terminated some years ago, whether or not a Default Notice was served.

 

The contract neither included any other permission, nor did it imply that your perceived 'rights' to process my data would be ‘in perpetuity’. There was also no clause contained within the contract that stated that x had any arbitrary right to continuing processing data for up to six years after the ending of the contract.

 

Also, I cannot recall any clear statement that gave my express permission for x to continue disclosing my subject data to third parties after the end of the contract. You are no doubt aware that any non-agreed disclosure of personal data to third parties, without express written permission, is a criminal offence under Section 35, of the Data Protection Act.

 

However, if I am mistaken, and the contract did, indeed, specify unlimited time extensions, then you must provide me with a copy of those signed terms indicating where I have agreed to them. This should be sent to me as one of your enclosures, if you wish to contest the enclosed Statutory Notice. You should be aware that you have, by statute, twenty-one days in which to either comply with my Notice, or give written notice stating your reasons and why you consider the Notice unjustified.

 

In summary, in relation to this former loan contract, I am formally instructing you, as an authorised officer of the Bank, from this day onwards, to:

1) cease to continue storing, processing or communicating my data;

2) remove all such data from automated process systems, as per the provisions of Part II, Section 12 (1) of the Data Protection Act, namely:

(1) An individual is entitled at any time, by notice in writing to any data controller, to require the data controller to ensure that no decision taken by or on behalf of the data controller which significantly affects that individual is based solely on the processing by automatic means of personal data in respect of which that individual is the data subject for

the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct.

 

Of particular note is the Acts own term “his creditworthiness”;

 

3) cease to disclose any data to any third party including, but not restricted to, Equifax plc, Experian Ltd and Callcredit plc; and

 

4) instruct Equifax plc, Experian Ltd and Callcredit plc to remove all data pertaining to your records on me, to the extent that no data entry in relation to x Bank plc will exist on my credit files.

 

Any failure on your part to adhere to these statutory timescales will automatically be interpreted as your non-compliance with the legal procedure. In that case, you will be expected to unconditionally comply with my Statutory Notice or I shall have no alternative but to refer the matter to the Court to seek an Order to that effect. Should it be necessary to refer the matter to the Court, then I shall also apply for Court fees and legal costs against the Bank. I shall also reserve the right to seek redress for damages as per the remit of the Data Protection Act.

 

 

I trust that I have made my position clear, and that x will now make a serious effort to understand its legal obligations and effect the changes requested. Should you be in any doubt as to the Banks obligations as a Data Controller, then I would advise that you consult your corporate counsel.

 

 

In any event, I shall expect a written confirmation from you acknowledging the contents of this letter within 5 working days, as per the requirements of section 15.3 of the Banking Code.

 

Yours faithfully,

 

 

 

 

 

 

 

 

 

 

 

Statutory Notice pursuant to Sections 10 and 12

 

 

of The Data Protection Act 1998.

 

Data Subject Notice

 

 

To: The Data Controller

GrabItAll Bank plc

Large Ugly Building

Somewhere in London SomePostalCode

[replace with registered company address]

 

 

Data Subject: [your title and full name]

 

 

Address: [your full postal address inc. postcode]

 

Whereas I have been a customer of x Bank plc and whereas I consented in my contract with you to the disclosure by you of certain data to third parties, at no time did I consent and neither was it within the contemplation of the parties to the contract that I did consent to the processing by you of that data in any manner which would be unfair or inaccurate or which in any way would breach The Data Protection Act 1998.

 

Therefore, take notice that I require that you cease from processing within twenty one days of the receipt by you of this Notice, or else that you do not begin to process any personal data of which I am the subject insofar as that processing involves the communication or passing of personal data of which I am the subject to any third party and insofar as the said data relates wholly or in part to the implementation by you of alleged defaults or contractual breaches or breaches contrary to The Common Law.

 

This Notice is given on the grounds that the processing or continued processing by you of the said data will be likely to affect my credit rating and my reputation and cause substantial damage and/or substantial distress to me and my family members in addition to that which has been caused to date. And that as the processing of the said data in the way referred to in this Notice would violate both the Principles and Data Subject’s rights of The Data Protection Act 1998, to do so would be both unwarranted and unlawful.

 

Signed

 

 

[sign it in pen]

 

 

[put your title, initials and surname]

 

Dated this [something -th] day of [month], in the year two thousand and [year].

 

Please note I am not a lawyer and this is given infomally and without prejudice.I am unable to answer individual questions by PM.

__________________

If you like my mails, then click my scales! Tell me what you think, or use me as a link. © SurlyBonds, 2006.

 

Copy of Law book from Amazon…£19.95, Refund Request stamp...32p, LBA stamp...also 32p, Court fees...£750.00,

The look on the bank's £3,000-a-day barrister's face, when they lost the '£25,378 Mother-of-all unfair charges' cases...(plus his £8,614 of costs)... Priceless!

 

The legal bit: All my posts are my personal views, opinions and own view of legislation and legal process. I accept no liability whatsoever for any outcome as a result of anyone invoking any or all of the advice presented. If you are unsure about how this affects your own individual case, then you should consult with an insured legal professional.

Having said that, I've used these methods against loads of these corporate crooks and won hands down!

Last edited by mjanet : 21st August 2006 at 11:28.

Best regards

Peter

[Peterbard]

Hi Peter

 

Are these EGG agreements lawful at all?

 

In my case what they have sent me is a 2 page copy and with no cancellation rights on it.

The card was granted and accepted over the internet.

 

You will need to zoom into each document with your mouse.

http://www.knowledgecommunity.co.uk/cag/eggagree1.gif

(Page 1)

 

http://www.knowledgecommunity.co.uk/cag/eggagree2.gif

(Page 2)

 

There supposed to be an attached set of T & C`s- named the Egg Card Credit Agreement Conditions, of which it quotes- but I never received these in my request for an original CCA.

 

Egg have since stated that these T & c`s will be descriptive within my S.A.R. which I am still waiting.

 

without giving these.

 

Any ideas??

HI

The agreement seems to ge OK i anm afraid there will be no cancelation rights in this case.

The T and cs if mentionedin the CCA request should have been sent with them I would quote the following from the section 77-79 request.

(1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

Also draw their attention to the to section3 (2) of the copies of documents regulations 1983/1557 of documents

General requirements as to form and content of copy documents

3.-(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof.

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instru­ment or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

 

Since the Bulk of the contents of the T and C’s will contain the information prescribed in schedule 1 of the regulations and are required to be included within the Act these are a central part of the request.

I do not see how they can say that the Creditor has complied without giving these.

 

Best regards

Peter

[patrickq1]

looks like your back on form peter have another look at the EU act

Council of Europe - ETS no. 108 - Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data

[patrickq1]

they may argue we have signed the agreement giving the finance /banks authority to process our data this comes (then)under the term catch 22..i mentioned before the "repugnant rule" this is not dormant it is a signing of the contract which in effect is a contradition to our rights under the data protection act...dont know wther this is helpful PETER but worth looking at

 

Regulation 5(1)[3] sets defines the principle of unfair.

• Has not been individually negotiated [4]
  
• Causes significant imbalance in the parties rights and obligations.
  
• Contrary to the requirement of good faith.

Has not been individually negotiated encompasses terms of which the consumer has not had the opportunity to mould. Terms that have been individually negotiated are outside this regulation, the contract however, and other terms, may be.[5]

Causes significant imbalance. This requires the term to be to the detriment of the consumer and benefit the seller or supplier to an excessive degree.

[patrickq1]

Standard form contract - Wikipedia, the free encyclopedia

 

their is also one more peice of eu legislation i have to find that should give a complete picture it concerns the CRAs and in particular the truthfulness and honesty of the data and also the right to be notified when your data is being processed or searched i will find it its in my data files but on another hard drive damm

[patrickq1]

hope im not boring anyone but this is something i have been looking at for over the past year as you already know peter

[the main man]

HI

The agreement seems to ge OK i anm afraid there will be no cancelation rights in this case.

The T and cs if mentionedin the CCA request should have been sent with them I would quote the following from the section 77-79 request.

(1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

Also draw their attention to the to section3 (2) of the copies of documents regulations 1983/1557 of documents

General requirements as to form and content of copy documents

3.-(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof.

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instru­ment or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

 

Since the Bulk of the contents of the T and C’s will contain the information prescribed in schedule 1 of the regulations and are required to be included within the Act these are a central part of the request.

I do not see how they can say that the Creditor has complied without giving these.

 

Best regards

Peter

 

Out of interest, the creditor produce a valid agreement and are unable to provide the relevant T&C because of the age of the account - would the account remain in dispute / stand off (and leave the debtor in a good bargaining position) or would it be that the creditor would have to go to court to enforce the agreement?

[lookinforinfo]

Peter that was an excellent letter. I thought you might have tried using the

Information Commissioners Office argument about consent-or the lack thereof. They believe that as consent to processing ones data is not given freely because you have no option if you want a loan, then consent was never given in the first place.

Thus when the contract is ended there can be no way to justify continued

processing.

Indeed using their argument, it is debatable whether processing during the lifetime of the contract even,could be classed as fair [[ie it is unfair]and therefore not permitted under Schedule 1 of the Act

[andrew1]

I have had a mortgage with Abbey for nearly 20 yrs. Because all this data processing malarky hadn't been in operation at the time my mortgage repayments were never recorded at the CRA's, so when business began to get tough and I didn't make my payments on time nothing was in the public domain through the CRA's. That was until I took advantage of a better interest rate package and I had to sign the new agreement, but hadn't noticed the processing of data part. I thought all that had changed was the interest rate. Now they process the data through the cra's and they will not rescind it back to the way it was. I argued that only the rate changed, but they say it's a new mortgage and your data is going to be processed. Would a SurelyBonds s.10 get that changed do you think?

[Peterbard]

Out of interest, the creditor produce a valid agreement and are unable to provide the relevant T&C because of the age of the account - would the account remain in dispute / stand off (and leave the debtor in a good bargaining position) or would it be that the creditor would have to go to court to enforce the agreement?

Hi

 

Sorry to take so long to get back to you.

 

The copy of the agreement should contain within it the terms and conditions of the contract. IMO this is what you should recieve whe you request a section 77- .

If they do not produce then the requirements of the request have not been met and there fore they are stil in default.

If they saythey no longer have these terms then since the terms should be within the body of the contract that means they so not have the contract so, you could SAR them for a copy of the orrigina,l or just tell them that since they obviously do no posses the orriginal contract you dispute it's exsistance and are therefore withholiding payment untill they prove otherwise.

 

Best regards

Peter

[Peterbard]

Peter that was an excellent letter. I thought you might have tried using the

Information Commissioners Office argument about consent-or the lack thereof. They believe that as consent to processing ones data is not given freely because you have no option if you want a loan, then consent was never given in the first place.

Thus when the contract is ended there can be no way to justify continued

processing.

Indeed using their argument, it is debatable whether processing during the lifetime of the contract even,could be classed as fair [[ie it is unfair]and therefore not permitted under Schedule 1 of the Act

 

Hi

This is a fascinating argument and one i had not considered but makes perfect sence.

You would think that with something as important as the data issue the agreement would give the option of accepting or declining giving consent and then letting the creditor base their lending decision in part on the answer.

At least then people would be aware of what they were signing up to and the possible consequences of breach of contract.

Not to have this option would as you say appear IMO to be grossly unfair.

I shall read up on this

 

Many thanks

 

peter

[Peterbard]

hope im not boring anyone but this is something i have been looking at for over the past year as you already know peter

Hi

Not at all Patrick

 

It is good to have someone looking "outside the box" (sorry i hate that phrase but nothing else seems to fit)

I think the information is very valubale and makes for fascinatinfg reading.

 

Bet regards

 

Pete

[Peterbard]

I have had a mortgage with Abbey for nearly 20 yrs. Because all this data processing malarky hadn't been in operation at the time my mortgage repayments were never recorded at the CRA's, so when business began to get tough and I didn't make my payments on time nothing was in the public domain through the CRA's. That was until I took advantage of a better interest rate package and I had to sign the new agreement, but hadn't noticed the processing of data part. I thought all that had changed was the interest rate. Now they process the data through the cra's and they will not rescind it back to the way it was. I argued that only the rate changed, but they say it's a new mortgage and your data is going to be processed. Would a SurelyBonds s.10 get that changed do you think?

 

HI A

 

I think that unfortunately you will be bound by the terms of the new agreement you signed.

were you given the statutory cooling off period as per section 58 prior to the agreement being executed if not then perhaps you could use this to argue that this was not infact a new agreement,maybee?

 

Regards

Peter