Are My Agreements Enforceable?

[alanalana]

Hello speedtrip,

 

ie controls and procedures around storage of microfiche items showing when the original was destroyed (records required of certification of destruction by duly a duly authorised Data Protection Officer within the company) and a copy made which is fair and reasonable request and why did they not go down this route which is set out in Civil Evidence Act. I would be very interested to see the result of this if it proceeds to Court action. I do not believe the CEA 1995 has been fully tested yet unless others can point to a successful case.

It is IMO a very useful piece of legislation in cases of doubtful copies of documents being produced as (Hearsay) evidence in a Court of Law.

 

in addition CPR says that original agreement should be attached to POC.

 

plus they should also be able to show audit trail around re-issue of card and agreement supplied at the that time which was not reported in response to my S.A.R - (Subject Access Request) which missed the 40 day deadline." And the audit trail must have full accreditation and be certified:)

 

Views anyone? All in red above have fun:)

 

aa

[macie]

speedtrap, under CPR31 you are deemed to admit anything they disclose to you in their disclosure statement unless you issue them with a Notice to Prove.

 

You have to use Court form N268. This means they have to prove the document(s).

[mikek]

Civil Evidence Act says:

9 Proof of records of business or public authority

(1) A document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof.

(2) A document shall be taken to form part of the records of a business or public authority if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the records belong.

For this purpose—

(a) a document purporting to be a certificate signed by an officer of a business or public authority shall be deemed to have been duly given by such an officer and signed by him;

(3) The absence of an entry in the records of a business or public authority may be proved in civil proceedings by affidavit of an officer of the business or authority to which the records belong.

So let's say they do a screenshot of their computer screen showing the historic credit limit, APR, monthly repayment %, dates of repayments and signature (dont forget, many banks scan your signature to prevent fraud e.g. Llouds TSB made me sign on a signature scanner on day). And then their officer cerifies it as part of their business records.

 

What if they do not have your signature as a record and by virtues of (3) they produce an affidavit saying that it was lost because of technical failure of their system?

 

Will that be accepted as substitute of an original agreement?

 

Scary thought!

[pt2537]

Civil Evidence Act says:

9 Proof of records of business or public authority

(1) A document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof.

(2) A document shall be taken to form part of the records of a business or public authority if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the records belong.

For this purpose—

(a) a document purporting to be a certificate signed by an officer of a business or public authority shall be deemed to have been duly given by such an officer and signed by him;

(3) The absence of an entry in the records of a business or public authority may be proved in civil proceedings by affidavit of an officer of the business or authority to which the records belong.

 

So let's say they do a screenshot of their computer screen showing the historic credit limit, APR, monthly repayment %, dates of repayments and signature (dont forget, many banks scan your signature to prevent fraud e.g. Llouds TSB made me sign on a signature scanner on day). And then their officer cerifies it as part of their business records.

 

What if they do not have your signature as a record and by virtues of (3) they produce an affidavit saying that it was lost because of technical failure of their system?

 

Will that be accepted as substitute of an original agreement?

 

Scary thought!

the simple answer is no it should not be accepted

 

They need to prove that you signed a document containing the prescribed terms and furthermore the requirements of S62 & 63 depending upon the situation were complied with

 

what they have there in your suggestion would not satisfy that criteria if you plead it correctly

[Harry May]

If a creditor destroys the original credit agreement and only keeps a microfich copy

 

a. Are they not complying to the 1983 copy document regulations

 

b. Having knowingly destroyed the original do they not need to authenticate the copy by a stamp or signature.

 

c. If the microfich copy does not have this how can they prove that it was a true copy of the original.

[mikek]

I have CCA'd a bank I have a loan with. They sent exact microfiche stored copies of the agreement. The agreement has all the prescribed terms + signatures + dates + cancellation rights. It consists of two pages. I believe it is clearly enforceable but they would also easily get the court to accept the copy because:

 

1) It is an exact copy

2) It is fully legible

3) the seperate pages were stamped with a serial number, day, time and date (about 2 years ago) of storing in microfiche. All pages bear the same stamp.

4) The copies were printed on official bank letterheads.

 

I see this as an example of a microfiche agreement that is fully enforceable and could be easily accepted by the court ( in my opinion, but bearin mind that I am not an expert). Even more, if they also produced a copy of their storing procedures to show that it complies with company procedure.

 

As I am fighting another lender for an original agreement, I plan to produce this to court as a good example of what the other lender should had produced if it eventually turns out that they do not have a proper copy of the original agreement.

 

I hope this info helps

[angel_1]

I have CCA'd a bank I have a loan with. They sent exact microfiche stored copies of the agreement. The agreement has all the prescribed terms + signatures + dates + cancellation rights. It consists of two pages. I believe it is clearly enforceable but they would also easily get the court to accept the copy because:

 

1) It is an exact copy

2) It is fully legible

3) the seperate pages were stamped with a serial number, day, time and date (about 2 years ago) of storing in microfiche. All pages bear the same stamp.

4) The copies were printed on official bank letterheads.

 

I see this as an example of a microfiche agreement that is fully enforceable and could be easily accepted by the court ( in my opinion, but bearin mind that I am not an expert). Even more, if they also produced a copy of their storing procedures to show that it complies with company procedure.

 

As I am fighting another lender for an original agreement, I plan to produce this to court as a good example of what the other lender should had produced if it eventually turns out that they do not have a proper copy of the original agreement.

 

I hope this info helps

 

 

hiya Mikek and all

 

i too do have my own copy of the original cca and when i requested a copy i got the same info from the same company so in theory id done a test too like you

 

im now battling with others and am getting illegible info, half cut up peices of info on a 3rd of the a4 paper and suggestions that terms and conditions are part of what they have sent me, but im having doubts,

 

i found a quote -

 

The man who wrote the Consumer Credit Act 1974 explains all;

As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson

for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust

Ltd [2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section

127(3)) entirely on my own initiative. It seemed right to me that if the creditor company

couldn’t be bothered to ensure that all the prescribed particulars were accurately included in

the credit agreement it deserved to find it unenforceable, and that the court should not have

power to relieve it from this penalty. Nobody queried this, and it went through Parliament

without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed

that nobody’s human rights were infringed.

167 Justice of the Peace (2003) 773.

 

*****

 

Could we use this as part of anyone's defence? Also show that we do understand what a correct and enforceable agreement should look like but Your Honor, what im being sent is just a mess of information.

 

anyway i will subscribe as am intersted in this and trying to learn more as i travel on this journey of madness

 

keep happy look forward to anyones comments ta muchly MAZ:)

[Harry May]

Does the "original" agreement need to have a reference number or account number that ties up with any default notice issued?

[johndeevoy]

As far as I am aware, the issuing of a default notice and placing of a default on credit files is a form of "enforcement" of the credit agreement. The creditor is relying on the terms and conditions of the agreement.

 

I have disputed 3 of my credit agreements as they are not properly executed for one reason or another and the response I have got from all creditors is "we don't recognise your dispute and will continue to add interest and default your account".

 

Im thinking of issuing proceedings under CCA1974 to obtain a judgement as to whether or not the credit agreements are properly executed. They all carry my signature and as such do not fall under s127. A Court is open to allow enforcement. However, this is not the point, the point is that the creditors are barred from "enforcing" the agreement until a Court says so. They cannot therefore issue a default or process any negative info with any third party. Am I correct in this thinking?

 

I have sent a letter to each creditor detailing my dispute of the agreement and that they should cease to process any of my data with credit reference agencies until the matter is resolved. I did say in the letters that "this is a statutory notice under s10 DPA1998". Is this OK or do I need to send a Statutory Notice as a separate document?

[car2403]

Not really.

 

The agreements, which you have signed, will include data protection usage notices that say they can do this. Because of that, they have a legitimate right to process your data, because they have your consent. Consent can be withdrawn, but that doesn't mean the data should be removed.

 

If the agreements aren't irredeemably unenforceable under s.127(3), you'll find it hard to get a Court to order the removal of the defaults, IMHO.

 

Take a looky here for a practical example, just to prove the point;

 

http://www.consumeractiongroup.co.uk/forum/other-stores/110148-car2403-ge-capial-bank.html

 

(Oh, and the Judge ruled that defaulting a credit file is not a form of enforcement)

[MinBlack]

What if you had never signed an agreement or anything you did sign did not say anything about use of your personal data?

 

Thanks.

[Jamesx81x]

It will all be in their terms and conditions, that bit everybody never reads

[car2403]

What if you had never signed an agreement or anything you did sign did not say anything about use of your personal data?

 

Thanks.

 

Consent, in the terms of the DPA, can be less than a signed agreement. For example, if they refer to Terms that are available on their website and put something like "use of the account will mean you have agreed to our terms, available on our website" could suffice for consent.

 

This is from the ICO;

 

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/its_your_information_sharing_information_about_you001.pdf;

 

Do I have to consent to information sharing?

Information sharing can often take place without your consent. In many cases where

you are not asked to consent the information sharing is reasonable and expected.

However, it should be clear why the sharing is taking place and who is involved in it.

If organisations want to share sensitive or confidential information, they are more

likely to need your consent. For example, if information about your health is to be

shared.

If you are asked to consent to information sharing, you should have a genuine free

choice. Consent shouldn’t be used as the basis for sharing information if, in reality,

you have little or no choice.

In some cases information may be shared without you even knowing about it. This

might be the case where telling you about the sharing would be likely to prejudice a

criminal investigation, or prevent a vulnerable person receiving proper protection

 

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/sharing_personal_information_v1.1.pdf;

 

Choice and consent

• We expect individuals to be able to exercise choice to allow their

information to be shared wherever this makes sense. However, where

consent is used as a basis for information sharing, it should be a

genuine free choice for the individual. Consent should not be used to

legitimise initiatives where, in reality, the individual has little or no

choice. In many circumstances the individual’s consent is not the best

basis for sharing personal information

 

http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/data_protection_act_legal_guidance.pdf

 

3.1.5 Consent

One of the conditions for processing is that the data subject has given his consent to the processing.

The Commissioner’s view is that consent is not particularly easy to achieve and that data controllers should consider other conditions in Schedule 2 (and Schedule 3 if processing sensitive personal data) before looking at consent,. No condition carries greater weight than any other. All the conditions provide an equally valid basis for processing. Merely because consent is the first condition to appear in both Schedules 2 and 3,does not mean that data controllers should consider consent first.

Consent is not defined in the Act. The existence or validity of consent will need to be assessed in the light of the facts. To assist in understanding what may or may not amount to consent in any particular case it is helpful to refer back to the Directive. This defines "the data subject’s consent" as:-

"…any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed".

The fact that the data subject must "signify" his agreement means that there must be some active communication between the parties. A data subject may "signify" agreement other than in writing. Data controllers cannot infer consent from non- response to a communication, for example from a customer’s failure to return or respond to a leaflet.

The adequacy of any consent or purported consent must be evaluated. For example, consent obtained under duress or on the basis of misleading information will not be a valid basis for processing.

Where a data subject does not signify his agreement to personal data relating to him being processed, but is given an opportunity to object to such processing, although this does not amount to consent for the purposes of the Act, it may provide the data controller with the basis to rely upon another Schedule 2 condition, for example, the legitimate interests condition, provided that the data subject is given the right to object before the data are obtained.

Consent must be appropriate to the particular circumstances. For example, if the processing is intended to continue after the end of a trading relationship then the consent should cover those circumstances. However, it must be recognised that even when consent has been given it will not necessarily endure forever. While in most cases consent will endure for as long as the processing to which it relates continues, data controllers should recognise that, depending upon the nature of the consent given and the circumstances of the processing, the individual may be able to withdraw consent.

There is a distinction in the Act between the nature of the consent required to satisfy the condition for processing and that which is required in the case of the condition for processing sensitive data. The consent must be "explicit" in the case of sensitive data. The use of the word "explicit" and the fact that the condition requires explicit consent "to the processing of the personal data" suggests that the consent of the data subject should be absolutely clear. In appropriate cases it should cover the specific detail of the processing, the particular type of data to be processed (or even the specific information), the purposes of the processing and any special aspects of the processing which may affect the individual, for example, disclosures which may be made of the data

[BankFodder]

The IC's own guidelines say that defaults shoujld not be entered if a sum is in dispute. There are at least two problems here.

Firstly, are the courts prepared to uphold the IC's guidelines. They have no basis in law as far as I can see. They are merely advisory. However, it owuld be fair to say that if the argument ran: that as the sum was in dispute, then it would not be certain that the amount was lawfully owed and as such, it could not be said forcertain that the default was an accurate data entry.

What this means is that the courts might themselves want to be satisfied that the sum in question was not owed.

Second problem is that the creditor might have come to a reasonable conclusion that the disputed sum was a legitimate debt, legitimately owed. It may be that the debtor has refused to accept the truth of the matter. It would not then be reasonable for a debtor to argue that the sum was still in dispute simply because he disagreed with the creditor.

 

So, in order for a default entry to be contrary to guidelines and to be an inaccurate credit file entry, the debtor must be able to show that he has a good basis for disputing the sum and that the creditor has erred in saying that the sum is owed.

 

Does this make sense?

[Muffintop]

car2403 said:

Not really.

 

The agreements, which you have signed, will include data protection usage notices that say they can do this. Because of that, they have a legitimate right to process your data, because they have your consent. Consent can be withdrawn, but that doesn't mean the data should be removed.

 

If the agreements aren't irredeemably unenforceable under s.127(3), you'll find it hard to get a Court to order the removal of the defaults, IMHO.

 

Take a looky here for a practical example, just to prove the point;

 

http://www.consumeractiongroup.co.uk/forum/other-stores/110148-car2403-ge-capial-bank.html

 

(Oh, and the Judge ruled that defaulting a credit file is not a form of enforcement)

Car this has thrown me into a bit of a whirl, muffintop v mbna thread,,, I was under the impression whilst an unenforceable agreement (in my opinion had been sent by mbna they wouldnt be able to place a default on my file) you appear to be saying that if you have signed something then they can do this under data protection?? I may have signed an application form but they have not provided my original cca or even a good copy, could you take a look at my last post as have put agreement up on thread.

 

Bankfodder, sorta makes sense, I took out a card yes, in 2004 at a motorbike show on a stand... the person who gave me the card may have told me the card was a special promo whereby it was 0% for life of any balance transfers and any purchases, no handling fees...I am not disputing having a debt, using the card over the years but want my CCA to prove or disprove the terms and conditions of the debt... wouldnt this be a good enough reason for wanting a true copy of my original cca and enough for them not to place a default on credit file when they have not provided this information without trying to trick me?

 

Consent, in the terms of the Data Protection Act, can be less than a signed agreement. For example, if they refer to Terms that are available on their website and put something like "use of the account will mean you have agreed to our terms, available on our website" could suffice for consent.

 

Car.. what if you didnt have access to the web to view their website?

[car2403]

Car this has thrown me into a bit of a whirl, muffintop v mbna thread,,, I was under the impression whilst an unenforceable agreement (in my opinion had been sent by mbna they wouldnt be able to place a default on my file) you appear to be saying that if you have signed something then they can do this under data protection?? I may have signed an application form but they have not provided my original cca or even a good copy, could you take a look at my last post as have put agreement up on thread.

 

The easiest way to explain is to use the ICO's guidance on how the CCA works alongside the DPA when looking at enforceability of agreements.

 

The ICO says that it is likely to be a breach of the DPA principles surrounding good Data Protection practice to share data regarding Defaults recorded against agreements that are irredeemably unenforceable - in other words, agreements that are incapable of being enforced due to s.127(3) CCA 1974. If the agreement is simply improperly executed, that is unlikely to amount to a breach of the DPA, according to the ICO.

 

Consent, in the terms of the Data Protection Act, can be less than a signed agreement. For example, if they refer to Terms that are available on their website and put something like "use of the account will mean you have agreed to our terms, available on our website" could suffice for consent.

 

Car.. what if you didnt have access to the web to view their website?

 

In that case, you shouldn't have signed the agreement stating that you are agreeing to the terms, as you'd be unable to read them.

 

It would depend on the circumstances of each case, which is why I used the word "could" as it may or may not be the case.

[overdone]

I have at least two debts bought by DCA's whereby they cannot find an application form let alone a valid CCA. In fact no paperwork whatsoever. Can I put them to strict proof that they ever had permission to handle my data let alone have the cheek to register a default?

[johndeevoy]

Heres what I got from s78 request:

 

 

 

Everything looks fine to me if those T&C are actually on the back of the first page. The total owed is £1,640 and CapQuest are saying that they will settle for £1,150 after I offered a lump sum of 1K.

 

What do you think guys? Should I play hardball on the figures? As part of the deal I am asking for default removal and confirmation of full settlement etc.

[the_shadow]

This is the typical agreement from capone...

 

Some say enforceable, others say not. Have a look around the crapone area for more ideas on what comes next if you withhold payments etc.

 

Capital One - The Consumer Forums

 

 

Personally I'd look for everything that links this front application to the back and ensure they are two parts of the same document...

 

What year was this taken out, mine was 2004 and they admitted in a defence that they scanned the front page in and destroyed the original.

 

S.

[johndeevoy]

Mine was 2005 shadow. What happened with their defence? Do you have a link to your case?

 

TBH I am fighting around 3 or 4 creditors atm and trying to settle 3 others that I think are more difficult fights. This is one I'm planning to settle as setout above.

 

I was hoping for more comments on the negotiation process with DCAs as I was shocked to find out they buy debts off creditcard companies for 10% of value.

 

I not familiar with the Unfair Contract Terms legislation so forgive me if I am way off the mark on any of this but I was wondering how it is possibily fair for the creditcard companies to allow themselves the right to amend the rate of interest on the account at any time?

 

I read somehere else on the forum that one had increased the rate from 9.8 to 29.9%. I suffered something similar with an increase from 5.5% to 17%.

 

Now I understand the argument that they need to be able to change interest rates due to competitors rates/bank base rate etc but my problem is that they apply the rate change RETROSPECTIVELY to amounts already owed, which is completely and utterly unfair and dishonest IMO.

 

I remember reading somewhere that one of Obama's first acts as president was to abolish this practice in the USA. Anyone have any thoughts on this? Any possibility of having the credit agreement declared void due to the 'unfairness' of this ability reserved by the creditor?

[diskmandave]

This is the typical agreement from capone...

 

Some say enforceable, others say not.

 

Tameside Trading Standards Service say NOT.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/59620-diskmandave-lowell-finacial-capone.html

 

Good luck... Dave..

[johndeevoy]

Tameside Trading Standards Service say NOT.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/59620-diskmandave-lowell-finacial-capone.html

 

Good luck... Dave..

 

 

I've checked your thread Dave. This is slightly different to yours. For a start, what they sent you was an application form and the wording was different and I don't think they sent you any T&C. Yours was from 2001 - no doubt they changed things slightly before this one in 2005.

 

Cheers anyway.

[Guest Old_andrew2018]

Bump

[B3rty]

Its a great point you raise and one that needs to be challenged, however under the terms of the agreement they can do this, albeit unfair.

[johndeevoy]

.. they admitted in a defence that they scanned the front page in and destroyed the original.

 

 

What happened in this case Shadow?