Non-conformance under s10 of the 1998 Data Protection Act

[Fred_Funk]

Thanks Bed. I am just waiting a bit longer before making them an offer to settle that will include the removal of the default notice. It has worked in some CAG cases but it appears to be when the amount of charges is significant and materially contributed to the default (i.e. pushed over limit).

 

Isn't it the case that in the circumstances you outline above - ie when the amount of charges is significant and materially contributed to the default - the instigator is legally obliged to remove it.

 

My reading of what bed32 was saying in the previous post, is that there may be instances in which the instigator of the default isn't legally obliged to remove it but may still agree to do so as part of a negotiated settlement - and that this may be an option open to you.

[Monty2007]

Isn't it the case that in the circumstances you outline above - ie when the amount of charges is significant and materially contributed to the default - the instigator is legally obliged to remove it.

 

My reading of what bed32 was saying in the previous post, is that there may be instances in which the instigator of the default isn't legally obliged to remove it but may still agree to do so as part of a negotiated settlement - and that this may be an option open to you.

 

I am not sure about "legally obliged", they "appear" to remove it as part of the settlement, possibly because they don't want it to be legally tested. There is one case (I will try to find the thread) where the judge appeared to make a decision in the respect but did not follow through on the subsequent judgment ruling.

 

I agree with your second point. My charges and interest are only a small fraction of the debt so I am trying to steer them into a settlement when I will try to get it lifted. Their prime motivation is MONEY so I figure if I give them that they may do me a favor. The law is certainly stacked unfairly in their side.

[Monty2007]

Take a look at:

 

National Debtline England & Wales | Debt Advice | Factsheet 05 Credit Reference Agencies

 

"Credit reference agencies hold information about your credit agreements (including any arrears), county court judgments (CCJs) and electoral roll information. A lender can only pass on information about your credit agreements with your consent. You usually give this consent when you sign the credit agreement. Failure to obtain your consent is a breach of the Data Protection Act 1998.

 

County court judgments will automatically be registered and are kept on record for period of six years. The information a credit reference agency hold about you is known as your credit report (or file)".

 

I will call and write to them

[bed32]

A lender can only pass on information about your credit agreements with your consent. You usually give this consent when you sign the credit agreement. Failure to obtain your consent is a breach of the Data Protection Act 1998.

Sorry -that is just wrong. The DPA gives 6 different justifications for processing data, and "consent" is only one of them.

 

In your case the Data Controller is relying on the 6th condition - which is that it is necessary for the legitimate interests of the data controller - and the note from ICO confirms that they tend to support that interpretation.

 

The ICO don't make the law of course but it would be hard to argue against their opinion in court.

[Monty2007]

Dear Bed

 

I am sure you are correct. I just wanted to post this since that is the statement I found on the National Debtline website - what chance does this give us?

 

National Debtline England & Wales | Debt Advice | Factsheet 05 Credit Reference Agencies

 

Essentially, IMO, there is little recall or remedy (other then negotiation) to get companies to modify information they have sent to the credit reference agencies. They are unregulated and have a set of rules that are there for the industry to benefit from.

[shieldblaster]

In any event, it is our view, having sought advice from our legal advisor's, that we are entitled to exchange information with credit reference agencies for the duration of the agreement and six years thereafter. This is because, "the processing is necessary for the purpose of legitimate interests pursued by the data controller or by the third party to whom the data are disclosed, except where the process is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject". (see paragraph 6(1) of schedule 2 to the Data Protection Act 1998 ("the Act").

 

If there is no agreement then there is no legitimate or lawful interest

 

This is a view shared by the Information Commissioners Office which enforces and overseas the Act. The Information Commissioners Office has explained that it takes "a wide view of the legitimate interests" and considers "that it is in the interests of other creditors to make informed lending decisions". It is only through informed lending decisions that the industry can hope to avoid/reduce the over-indebtedness of consumers.

It would have to be a very wide view indeed to allow creditors to act outside of the Data Protection Act. They are talking as if there is an agreement in place, so why have they not sent a copy of it?

[Monty2007]

Just had a look at the Experian website, interesting bits in their Q&A's

Can anyone see my credit accounts?

 

No, credit information is private. Only companies who are members of Experians account sharing scheme can access credit account information and can only look at your credit account details if they have been given permission. Consent is usually obtained during the completion of a credit application form.

Experians account sharing scheme is strictly regulated and lenders can only see the information if they provide similar information and they must abide by strict rules which clearly list the purpose for which the information can be used.

 

So if they don't have the application form they don't have consent!

[bed32]

Sorry - that's the wrong sort of consent

 

I think what that refers to is you giving your consent to Experian to share your data with a company when you are applying for credit (or a job, or a mobile phone...)

[Monty2007]

Thanks Bed, I guess you are correct.

 

I thought there would be more on this topic given it is critical to get defaults removed.

[bed32]

The use of the term "default" here is rather misleading - these are not Defaults within the meaning of the CCA, these are just records of your payment history.

 

The only way to get these records removed is to prove that they are "unfair". It seems fairly clear that these records are not universally unfair so you have to be able to make an individual case.

 

I wonder whether you can make the argument that debt that is unenforceable is similar to statute barred debt and so should be treated in the same way as far as credit records are concerned

[payingonlyencouragesthem]

Dear Fred

 

There are a few cases:

 

Mike220359 v Blair Oliver & Scott **I won**

 

but the other interesting one relates to Zooman who (in Jan 07) was granted an order in the Barrow on Furness County Court in respect of the failure by the Royal Bank of Scotland to comply with his disclosure request under the Data Protection Act.

 

See: http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/48237-non-disclosure-imprisonment-threat.html?highlight=imprisonment

 

"District judge Forester, making the order commented that had the claimant been able to supply him with the name of the data controller at the Royal Bank of Scotland that he would have added a threat of imprisonment for non-compliance".

 

My CCC just seem to be simply making it up as they go along, I am just getting a response together so any advice or case precedent would be appreciated.

 

Regards

 

Monty

 

I think committal proceedings are on the cards for some of these people. Monty they are just blowing smoke in your eyes - they cannot process your data without a properly executed agreement. I still think it's a waste of money paying them anything.

[Monty2007]

I have stopped paying and they have gone quiet............

 

I think that they now know I am up for the mother of all battles, with the help of you lot of course!

[scousepie]

Silly question, When we all sign for the credit cards and so on is that not the CCA agreement or is that just the application?, and were do all the CCA's go cos most threads you read creditors can't seem to produce them on request?

[Monty2007]

Dear Scousepie

Good question. There are many links that debate this point in regard to application versus agreement under the 1974 Act. It would appear that an application is pre-contractual so if it has all of the prescribed terms then it "may" be enforceable as an agreement in court and there is a whole spectrum of documents on this site that are either totally lacking such terms, come very close or totally conform. A can of worms if ever I saw one!

 

This area has not been legally tested, many DCA's seem to cave in when they cannot produce the agreement since they are obviously aware that they cannot enforce. The credit card companies and banks are more cunning and Goldfish play a cat and mouse routine since they claim to send "a true and signed copy" but in reality this is just a current print-out of their current documentation and they don't even send a photocopy of the application as many others do. You then have the option of calling their bluff or not...........someone will put their nuts on the line I expect, maybe even me?!

 

I was in town yesterday and picked up a Nationwide credit card application, it is very comprehensive and seems complete. The application form has a separate heading "Agreement under the 1974 Consumer Credit Act" just above the signature box and this is the most complete document that I have seen. They are wise to it now, no ambiguity anymore, doh..

[rory32]

The use of the term "default" here is rather misleading - these are not Defaults within the meaning of the CCA, these are just records of your payment history.

 

The only way to get these records removed is to prove that they are "unfair". It seems fairly clear that these records are not universally unfair so you have to be able to make an individual case.

Personally I would generally avoid the argument of whether a default is "unfair" and pursue it in terms that the default notice is legally invalid (which would make the default on your credit file legally invalid).

 

Most default notices do not appear to conform to the regs.

[Monty2007]

Thanks Rory.

I am sure that the default notice they sent me has all the prescribed terms BUT given they don't have the agreement can I claim that they had no legal justification to serve it in the first instance?

[rory32]

You would first have to serve them with a section 10 notice.

 

With regards to default notices the default notice must contain all of the necessary information which includes

• a statement saying the notice is a default notice served under section 87(1) of the 1974 Act
  
• a description of the agreement
  
• the name and address of both the debtor and the creditor
  
• details of the breach (i.e. late payment) and, if the breach can be remedied, the date by which it must be remedied or, if the breach is not capable of remedy, the amount required to be paid after the expiry of the specified date;
  
• a statement saying: if the action required by this notice is taken before the date shown no further enforcement action will be taken in respect of that breach
  
• a statement saying: if you do not take the action required by this notice before the date shown then the further action set out below may be taken against you
  
• a clear and unambiguous statement saying that if the action is not taken by the date specified, what it will do (for example, if will it terminate the agreement)
  
• if the agreement is one of hire purchase or conditional sale, a statement saying: but if you have paid at least one third of the total amount payable under the agreement set out below (or any installation charge plus one third of the rest of the amount payable). The creditor may not take back the goods against your wishes unless he gets a court order. (In Scotland, he may need to get a court order at any time.) If he does take them back without your consent or a court order, you have the right to get back all of the money you have paid under the agreement set out below
  
• if an amount of money is required to be paid, the amount before deducting any rebate on early settlement
  
• statements saying:
  if you have difficulty in paying any sum owing under the agreement or taking any other action required by this notice, you can apply to the court which may make an order allowing you more time
  if you are not sure what to do, you should get help as soon as possible. For example you should contact a solicitor, your local trading standards department or your nearest citizens' advice bureau

Also as of 1st October 2006 the period of notice to remedy the breach was increased from 7 days to 14 days from the date of service of the default notice. The CCA quite clearly states that the creditor shall not take action such as mentioned in s87(1) before the date so specified or before those 14 days have elapsed.

[Monty2007]

Hi Rory, going in a loop on this one. See post 1 (s10 request) and post 2 (their response)

[Monty2007]

Given their letter at the start of this thread and non conformance with my CCA request, I have drafted the following:

 

 

Accountxxxxxxxxxxxxxxxxxx

 

 

Dear xxxxxxx

 

I am in receipt of your letter dated xx June 2007.

 

You will be aware of the Consumer Credit Act 1974 provisions regarding furnishing copy documents in the prescribed period and that you have failed to adhere to the twelve working day timescale which places both alleged accounts in default.

 

I have also requested the same from your agents, xxxxxxxxxxx, who despite your constant insistence to correspond with, do not actually respond whatsoever to any written legal requests or legitimate correspondence.

 

The purported agreements supplied to me do not accord in form and content to sections 60 and 61 of the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 and are therefore unenforceable. Should you wish to take legal action in relation to enforcing these alleged credit agreements you will be aware that Civil Procedure Rules will require you to furnish said information during the pre-trial/hearing disclosure phase.

 

In addition, the Default Notices that you served on me are legally invalid as they both request amounts in excess of the alleged breach of contract. For both a/cxxxxxxxxxxxxx and a/c xxxxxxxxxxxx, the amount requested contains penalty charges which were levied to the alleged account, and are unlawful at Common Law, under the The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999.

 

You have also conveniently failed to acknowledge, or address, the processing of my data by your agents, xxxxxxxxxxx who have acted illegally under the Data Protection Act 1988. You must confirm to me on what, or who’s, authority you provided my data to this organisation and on what or who’s authority they processed it.

 

On several occasions I have written to you in relation to xxxxxxxxx breach of the (i) the Administration of Justices Act 1970 (S.40) which makes it a criminal offence for a creditor or creditor’s agent (i.e. debt collection agency) to make demands (for money), which are aimed at causing “alarm, distress or humiliation, because of their frequency or publicity or manner”. Equally a creditor will be committing an offence if they falsely imply that non-payment of the debt will lead to criminal proceedings; or the creditor pretends to be someone they are not. And (ii) the Protection of Harassment Act 1998 that provides provisions in terms of debt collection harassment. This act is clear in that it is a criminal offence for any person to pursue a course of action “which they know, or ought to know, amounts to harassment of another person”.

 

Given this impasse and subject to contract, I am prepared to enter into a without prejudice compromise settlement with you in relation to this matter. This offer is defined below and is attached as a Terms of Settlement Agreement. This offer is open to you until xxxxxxxxx 2007.

 

For settlement I require you to:

 

1. Return the balance of both accounts to zero and close them out forthwith.

 

2. Inform xxxxxxxx (including its subsidiary companies) that these accounts are closed and no further action is required from them whatsoever.

 

3. Agree not to impose any further charges or interest on these accounts or assign it to any other party.

 

4. Withdraw all information including any default notice(s) served in relation to these disputed accounts from all credit reference agencies and agree not to place any future notices in relation to these above accounts with any credit reference agencies. xxxxxxxxxx Limited agrees to execute this action within a reasonable period of time and not longer that eight weeks following execution of this agreement.

 

I attach a ‘Terms of Settlement Declaration”, please return one executed copy to me.

 

If we are unable to reach a compromise settlement I will issue an application under Section 142 for the court to declare that enforcement action cannot be taken: on the basis that the credit agreements supplied does not conform to the Agreement Regulations; Section 60 on several counts, is therefore improperly executed as per Section 61, and as a consequence is irredeemably un-enforceable. I will also take the necessary legal and regulatory steps to have you conform to the Section 10 Data Protection request that you have vigorously contested.

 

Yours sincerely

Monty

[Monty2007]

Monty

 

Hello again. You ask if they never had permission to process your data - ie a properly executed CCA - then how can they claim this.

 

That would appear an entirely legitimate point. However, even more fundamental, it seems to me, is that if they don't have a properly executed CCA then, in the eyes of the law, this debt never existed.

 

To prove otherwise the credit card company would have to instigate a court action.

 

In these circumstances, I'd have thought they are obliged to remove any adverse references on your credit file.

 

Moreover, I'm sure that I've read this is the case in numerous other threads. Have you tried using the site's search facility to see if you can find any threads in which a definitive response is provided to someone finding themselves in the same circumstances?

 

Fred_Funk

 

Fred, I sent this off at the same time I was requesting the CCA, they have not put 2 + 2 together and have gone very quiet. Let's see what happens. I am sure you are correct by the way..

[patrickq1]

try this it follows on from what you are looking for also if they cannot produce the cca then their is no reality of consent to them processing your data

s.10

Right to prevent processing likely to cause damage or distress.

[Monty2007]

The data protection act allows them to process your data even in the absence of a CCA. The lack of an agreement renders the debt unenforceable, it is still owed as evidenced by receipts and statements that they have sent (unless there has been fraud). Hence they are allowed to report the outstanding balance to the CRA until the balance is settled + six years thereafter.

 

Take a look at the top of the thread.

[patrickq1]

i have looked monty but the arguement still stands their is no reality of consent to process your data to another party when you are of the absolute beleif that your data being passed to a third party means the police(in cases of fraudulent behavior money laundering etc)the taxman for simmallar reasons,and the courts...I nor would you dream of my data being passed to anyone cepting the three mentionedand the court system already have the data through the courts,.also how do experian get the data do the banks sell it for profit or do experian profit from its use at your expense ie passing data then to a fourth party for profit (I use experian as an example)thus making the such data, proccessing companies have yet to be tested in the law courts .....you would also expect on the basis of your data being proccessed to the likes of the data receiving company that before publishing you would be furnished the evidence they have received from the banks to allow you the right to challenge such data as to its statement of truth if this data is published or passed to another party ie fourth party it may be tainted with malicious data ..false data ...inacurate data .this would render your reality of consent to be withdrawn until the default has been proven.by a judge,their is no way anyone could allow this to be acceptable it also makes the contract questionable due to undue influences ..unfair persuasion or error is not a product of mutual & voluntary consent.i could go on but as a right thinking person i dont want anyone knowing my details unless it is as beleived to be the third party under the prevention of fraud etc police taxman and judge,

.

[shane5408]

subscribing:D

 

looks like this threads your bread and butter patrick!

[Monty2007]

The basic premise is that the banks and credit card companies can process your data (input into your credit files) if you have a debt with them since the Data Protection Act allows for this, irrespective of the existence of a consumer credit agreement. They can prove that you created the debt through the use of the card/account and this is more than enough evidence. I have this from Experian, TS and the banks.