SLC Cannot Supply The Original Agreement

[InKogneeToh]

HI Pam

 

I am not one to gloat i have however printed your last post and am off to the shops to buy a nice frame, it will go next to my swimming certificate(5Meter's impressed eh.)

Peter

 

Oh Peter - You're a tonic!!

 

I suffer from chronic depression and I haven't laughed so much in a long time as I have these past few weeks!

 

I think I shall give you a tick just for your audacity!

 

Regards, Pam

[m55dlc]

But the question has to be asked Pam, are you Gin?

[Peterbard]

Apparently a lender does not require any agreement for processing your data, so if people are requesting agreements for a loan or cc and the lender is unable to produce this, they are quite within their right to report the account activity to the CRA's

 

If this was true any dealer could pluck yur name out of a telephone book and do a credit check.

Not likely.

It is true that just because an agreement is unenforceable as regards collecting alledged money outstanding on it, it does not effect the permission given to proccess data which was in the small print when you signed it.

So unless you are going to say no agreement was signed by me they can use that clause to update your file.

Peter

[Peterbard]

But the question has to be asked Pam, are you Gin?

 

Sounds more like a pint of Bitter and two pickled eggs to me M.

 

Peter:rolleyes:

[humbleman]

Peter

 

I am just reporting what I have been told and awaiting their email confirmation, I guess what they will say is that the lender is relying on Schedule 2 of the act and fulfiling one of the conditions for processing the data, namely..THE PROCESSING IS NECESSARY FOR THE PURPOSES OF LEGITIMATE INTERESTS PURSUED BY THE DATA CONTROLLER.

[InKogneeToh]

Pam did you look up the credit card cancellation issue??

 

Trying to be a gentleman here.

 

Peter

 

Hi

 

Yes I have. I think most of our disagreements stem from the fact that you are quoting from relatively new regs. that don't actually apply to many member's old debts and I am mostly quoting from circa pre-2004 legislation.

 

E.g. cancellation of credit card agreements/ 14 day period comes from the Financial Services Distance Marketing Regs. that weren't implemented until Oct 2004.

 

Prior to this, and applicable to many people's agreements, the cancellation period for credit cards was as stated in the CCA for cancellable agreements because (although strictly speaking they are non-cancellable agreements) the credit card issuers had decided to make their agreements cancellable.

 

These regs. do not apply retrospectively so people must be sure that they are checking their particular circumstances/paperwork in accordance with the date of their agreement. There have been many changes so everyone needs to be sure they are looking at the appropriate regs.

 

Regards, Pam

[InKogneeToh]

It is true that just because an agreement is unenforceable as regards collecting alledged money outstanding on it, it does not effect the permission given to proccess data which was in the small print when you signed it.

So unless you are going to say no agreement was signed by me they can use that clause to update your file.

Peter

 

Oh dear, this is not good for my street cred. but I find myself agreeing with Peter again!

 

An unenforceable agreement is still valid and lawful in itself. It only means that the debtor cannot be forced to pay.

 

So, if the creditor/DCA has a copy of that agreement then they have you're consent to share data.

 

The grey area is when no copy agreement can be produced. That is when, in my opinion, a 'legitimate interest' may not be proved. As stated before, I think the original creditor could show a legitimate interest by showing proof of the credit given.

 

I don't think a DCA is in the same position - there is no contract (and therefore no consent) between the DCA and the debtor unless they can prove that they are the lawful assignees of the credit agreement itself - not just the debt!

 

Just my take on the matter!

 

Regards, Pam

[InKogneeToh]

But the question has to be asked Pam, are you Gin?

 

Sounds more like a pint of Bitter and two pickled eggs to me M.

 

Peter:rolleyes:

 

Yuk! I hate pickled eggs AND beer AND gin!

 

I'm a wine or vodka girl myself!

 

Only occasionally though - I'm a good girl!

[Peterbard]

I am just reporting what I have been told and awaiting their email confirmation, I guess what they will say is that the lender is relying on Schedule 2 of the act and fulfiling one of the conditions for processing the data, namely..THE PROCESSING IS NECESSARY FOR THE PURPOSES OF LEGITIMATE INTERESTS PURSUED BY THE DATA CONTROLLER.

HI

 

I believe you of course what i don't believe is that anyone can manipulate personal data without the data sources direct permission.Not legally anyway.

 

Peter

[Peterbard]

Yes I have. I think most of our disagreements stem from the fact that you are quoting from relatively new regs. that don't actually apply to many member's old debts and I am mostly quoting from circa pre-2004 legislation

 

What part of the old legislationis that Pam;)

 

And what was that about street cred i will have you know that my granddaughter says I am a cool dude.

 

Peer

[m55dlc]

That's true, Peter, but remember that just because an agreement is not enforceable, it still exists, and therefore you have consented to them processing the data. If no agreement can be found, and they have your application form, I'm sure you will have consented to your details being processed then (but that is a guess on my part). As has been mentioned a number of times between here and the CCAA thread, even though an agreement is unenforceable, it may well be still lawful. If no agreement can be produced, the bank or CC company can prove you had a contract with them very easily and that they therefore have a legitimate case to say that they are allowed to process your data with a CRA. I do agree with Pam, that if a DCA processes your data and there isn't an executed agreement, they are on very sticky ground and probably well worth having a pop at.

[un1boy]

Apparently a lender does not require any agreement for processing your data, so if people are requesting agreements for a loan or cc and the lender is unable to produce this, they are quite within their right to report the account activity to the CRA's

 

If this was true any dealer could pluck yur name out of a telephone book and do a credit check.

Not likely.

It is true that just because an agreement is unenforceable as regards collecting alledged money outstanding on it, it does not effect the permission given to proccess data which was in the small print when you signed it.

So unless you are going to say no agreement was signed by me they can use that clause to update your file.

Peter

 

Ah, but surely if the agreement is unenforcable, then so too are its terms - it's the terms on the agreement which are used to say how they can process your data.

 

Otherwise, surely anyone you do business with can process ur info on ur credit files?

[Peterbard]

Hi M

Most of that is what i said.

Bassically

The permission to process data about your account is on the agreement which you sign and after the cancellation period is usable by the creditor.

 

This consent is not on an applicaton form the only agreement you give is for them to examine your existing credit record not to ammend it.

The DPA is very precise about permissions of this type i do not pretend to be an expert on this but im am sure of what i say there are others on here that may be able to quote legislation unfortunately i am not one of them. But i may look it up if i get a minute.

Peter

[Peterbard]

Ah, but surely if the agreement is unenforcable, then so too are its terms - it's the terms on the agreement which are used to say how they can process your data.

Isee wher you are coming from but if we examine your argument further.

When you signa crdit agrement it is just that anagrement to ontain credit the enforceability of the creditor to recover the monies plus interes is outined in the agrement and this is what is made unenforceable by improper production or implementaion of documents.

If what you are saying is that this makes the contract void then yes they would not be able to use any of the subsiduarry sections such as permission to share data. But that is not what happens the agreement is said to be unenforceable against the debtor different thing.

Peter

[un1boy]

Ah, but surely if the agreement is unenforcable, then so too are its terms - it's the terms on the agreement which are used to say how they can process your data.

Isee wher you are coming from but if we examine your argument further.

When you signa crdit agrement it is just that anagrement to ontain credit the enforceability of the creditor to recover the monies plus interes is outined in the agrement and this is what is made unenforceable by improper production or implementaion of documents.

If what you are saying is that this makes the contract void then yes they would not be able to use any of the subsiduarry sections such as permission to share data. But that is not what happens the agreement is said to be unenforceable against the debtor different thing.

Peter

 

Hmm...I udersstand, but it makes no sense really......

 

Actually I don't understand -will get back to you later

[zubo]

Ah, but surely if the agreement is unenforcable, then so too are its terms - it's the terms on the agreement which are used to say how they can process your data.

Isee wher you are coming from but if we examine your argument further.

When you signa crdit agrement it is just that anagrement to ontain credit the enforceability of the creditor to recover the monies plus interes is outined in the agrement and this is what is made unenforceable by improper production or implementaion of documents.

If what you are saying is that this makes the contract void then yes they would not be able to use any of the subsiduarry sections such as permission to share data. But that is not what happens the agreement is said to be unenforceable against the debtor different thing.

Peter

 

Peter

completely disagree.

My reference is (p'''ssed off many people) SURLYBONDS - he has sound logical arguments based upon Data Protection Act.

 

The essence of the argument is based upon common law, DPA and the CCA. Let us consider just the DPA - YOU are the centre of this and all the regulations cover os how YOUR information is held. One of YOUR fundamental rights is to provide YOUR permission to hold YOUR data. any data controller requires YOUR permission... get it? its about YOU.

A CRA must respond to YOUR requests about YOUR data NOT the creditor.

There is absolutely NO legislation which allows them to retain YOUR data for 6 years. An industry standard agreed has NO place in law. Similarly, IF you give permission in your agreement then THAT is the only mechanism which provides a CRA the permission to hold data re you and then ONLY through the life of a properly executed agreement.

Finally at the end of the agreement unless there is good reason to keep that information in the public domain (CCJs) there is NO reason to keep your information on their systems. They are simply a third party subject not exempt to same legislation..

 

and this all is ONLY if permission is granted (as specifically required - NO exceptions by the DPA) within the context of afully executed agreement as defined by the CCA.... mmm see where I am coming from???

ok???

[m55dlc]

But Zubo, for that to be correct, if you have an agreement that is not properly executed, not only does it have to be unenforceable, it has to be illegal. That is not the position in most agreements, be they glorified application forms or other things. If they have something signed by you, stating the relevant parts of the Data Protection Act, and they can prove (i.e. by showing you have benefitted in monetary terms or purchased something on a credit card), you do not have a leg to stand on.

 

An agreement, albeit not fully executed, is still a legal document and as such will provide the appropriate permission for data processing under the Data Protection Act.

[un1boy]

But Zubo, for that to be correct, if you have an agreement that is not properly executed, not only does it have to be unenforceable, it has to be illegal. That is not the position in most agreements, be they glorified application forms or other things. If they have something signed by you, stating the relevant parts of the Data Protection Act, and they can prove (i.e. by showing you have benefitted in monetary terms or purchased something on a credit card), you do not have a leg to stand on.

 

An agreement, albeit not fully executed, is still a legal document and as such will provide the appropriate permission for data processing under the Data Protection Act.

 

How can it be a legal document if it is not enforcable (in the case of having no prescribed terms for example) and also, if they have failed to produce ANY terms and conditions that were relevant the time?

 

All they have (in my case) is a document stating that i agree to be nound by the terms attached....they can't give me a copy them because they don't have them, so, therefore, they do not have any permission from me to process my data? only a blanck document with my sig on it, which is not enforcable even with a court order nothing more.....

 

I would have thought that any agreement whihc isn't properly executed/completely unenforcable would have been applied illegally as it is a breach of the requirements of an Act of parliament and therefore illegal and thus void?

[m55dlc]

How can it be a legal document if it is not enforcable (in the case of having no prescribed terms for example) and also, if they have failed to produce ANY terms and conditions that were relevant the time?

 

All they have (in my case) is a document stating that i agree to be nound by the terms attached....they can't give me a copy them because they don't have them, so, therefore, they do not have any permission from me to process my data? only a blanck document with my sig on it, which is not enforcable even with a court order nothing more.....

 

I would have thought that any agreement whihc isn't properly executed/completely unenforcable would have been applied illegally as it is a breach of the requirements of an Act of parliament and therefore illegal and thus void?

 

There are varying degrees of not having an executed agreement. Obviously, if you have a signature on a blank piece of paper then you are high and dry. If you have an agreement that is unenforceable on a technicality (as mine is - more on that later if you're interested) it is still proof, along with the statements given and the proof they can provide to say that I have used their credit card, mean the court will uphold that the agreement, although unenforceable, does actually exist.

 

We're not talking about abstract points of law here, the judge will uphold that they cannot enforce the agreement, and in all likelyhood enforce that they have the right to process the data. You cannot have your cake and eat it.

[un1boy]

There are varying degrees of not having an executed agreement. Obviously, if you have a signature on a blank piece of paper then you are high and dry. If you have an agreement that is unenforceable on a technicality (as mine is - more on that later if you're interested) it is still proof, along with the statements given and the proof they can provide to say that I have used their credit card, mean the court will uphold that the agreement, although unenforceable, does actually exist.

 

We're not talking about abstract points of law here, the judge will uphold that they cannot enforce the agreement, and in all likelyhood enforce that they have the right to process the data. You cannot have your cake and eat it.

 

Yes, please tell s about ur agreement.

 

But, how can a judge enforce any part of an agreement if it doesn't have the prescribed terms on it? The terms and conditions form part of the agreement, do they not?

[humbleman]

Yes, please tell s about ur agreement.

 

But, how can a judge enforce any part of an agreement if it doesn't have the prescribed terms on it? The terms and conditions form part of the agreement, do they not?

 

they don't need the agreement since they will rely on one of the other reasons to process your data, refer to my post 1634

[FANTASY CHARGES]

Yes I have. I think most of our disagreements stem from the fact that you are quoting from relatively new regs. that don't actually apply to many member's old debts and I am mostly quoting from circa pre-2004 legislation

 

What part of the old legislationis that Pam;)

 

And what was that about street cred i will have you know that my granddaughter says I am a cool dude.

 

Peer

 

PETER

IT MAY BE OBVIOUS TO YOU BUT NOT TO US "NON LEGAL seagulls" (UNTIL WE READ YOUR POST ABOVE )

 

 

CAN YOU PLEASE CONFIRM

SAY FOR AN AGREEMENT SIGNED PRE 1990 THEN THE REGULATIONS THAT APPLY ARE THE ONES THAT EXISTED BEFORE THE DATE OF SIGNATURE AND SIMILARY FOR SAY 2000.

 

I AM SURE YOU ARE SAYING SO BUT PLEASE COULD YOU CONFIRM THIS

 

THANK YOU

[zubo]

Peter

 

I am just reporting what I have been told and awaiting their email confirmation, I guess what they will say is that the lender is relying on Schedule 2 of the act and fulfiling one of the conditions for processing the data, namely..THE PROCESSING IS NECESSARY FOR THE PURPOSES OF LEGITIMATE INTERESTS PURSUED BY THE DATA CONTROLLER.

 

I will repeat it again:

 

Data Protection Act Rights of Data Subject to prevent processing - Part II Section 10:

 

Right to prevent processing likely to cause damage or distress. 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.

(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.

(3) The data controller must within twenty-one days of receiving a notice under subsection (1) ("the data subject notice") give the individual who gave it a written notice-

• (a) stating that he has complied or intends to comply with the data subject notice, or

• (b) stating his reasons for regarding the data subject notice as to any extent unjustified and the extent (if any) to which he has complied or intends to comply with it.

Lets look at 2(a) above for the exemptions to this:Schedule 2 - conditions relevent for the purposes of the first principle: processing of any personal data:

 

CONDITIONS RELEVANT FOR PURPOSES OF THE FIRST PRINCIPLE: PROCESSING OF ANY PERSONAL DATA 1. The data subject has given his consent to the processing. If there is no fully executed agreement than I have NOT consented: I disagree with M55 - there are no shades of grey in law - part of the agreement cannot be implemented and not others..

2. The processing is necessary-

• (a) for the performance of a contract to which the data subject is a party do I have a contract if the agreement on which that contract is based is not executed? dont think so!, or

• (b) for the taking of steps at the request of the data subject with a view to entering into a contract. Not here either.
  

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. there are none.

4. The processing is necessary in order to protect the vital interests of the data subject. cannot use this either

 

Conclusion - clearly the data controller felt it right and proper to ignore the above part of the Act. Also note that 2(a) can only be used during the lifetime of the contract and agreement. Once it is concluded either termination or satisfaction then there is no further interest re performance. So the act allows you to request that any related information regarding the contract/agreement be removed. This 6 year business I keep reading about is complete garbage. There is NO legislation determining the specific length of time a data controller can keep data about you. Industry agreement is not the same as law. Also just looked at the part which Humbleman says that they will rely on - again in Sshedule 2:

 

6. - (1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

 

They didn't tell humble the last bit....

[m55dlc]

2. The processing is necessary-

• (a) for the performance of a contract to which the data subject is a party do I have a contract if the agreement on which that contract is based is not executed? dont think so!, or

6. - (1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

 

This is the crux of it isn't it. At what point does an agreement become a contract. If an agreement is not executed, is it still an agreement? A non-executed agreement is just that, not executed. There has been a lot of discussions on whether or not being executed is the be all and end all. We have concluded that (on the whole!) a non-executed agreement is not enforceable by the courts, but do the courts dismiss it as not existing? I think not. If you apply for a credit card and then use it, irrespective of whether or not you have signed an agreement or not, you are deemed to have accepted the terms and conditions of the CONTRACT by using it. In addition, if you spend the monies given to you by a loan - or even accept interest gained on the monies paid to you by your own bank, you are deemed to have accepted the terms and conditions of the CONTRACT by accepting it.

 

Don't over simplify the whole unexecuted agreement thing as meaning they don't have a legitimate interest:

 

"Your Honour, We supplied this gentleman a credit card he then used and subsequently defaulted over, we therefore believe we have a legitimate interest in making others aware within the industry, and subsequently ourselves (as the gentleman may well move house in the mean time) from applying and being approved further credit."

[Guest Battleaxe]

Just got back 33 pages of my credit report from Call Credit and I see data being processed two to three years after completion of contracts. this is ridiculous. Tried to phone call credit, what a waste of time 0870 number and it all computer not human to speak to, so looks like I have more letters to write regarding the continued processing of data liong after accounts have been settled.

 

Not one default on the file so I think the ICO has been doing his job in that regard, but a Notice is going to be written regarding the AA's on my file and BB's placed there by Sander and Kat et al. This is the lot who cannot supply a credit agreement and their company secretary is supposed to be wrting to me with a 'substantive' reply to my Section 77-78 request.