Morgan Stanley have eaten my CCA!

[Monty2007]

Dear Tom

What does "relevant" mean in this context?

 

 

.........but, it appears, they can avoid showing their hand even under the Data Protection Act and the CCA 1974. No wonder we have so many lawyers, nothing like complete ambiguity eh?!

[bed32]

there have been dozens of cases, including cases that have gone to the court of appeal, where banks have got away with not disclosing information under the D.P.A. 1998 because it isn't part of a relevant filing system...

 

point here is burden of proof. Can you PROVE it is part of a relevant filing system?

The issue as to what is a relevant filing system has more to do with how the information can be found rather than how it is stored. So in general any filing system that includes your details that can be retrieved fairly easily would be regarded as a relevant filing system. So if they later produce the document it probably was in a relevant filing system all the time.

 

Actually on reflection I have thought of a counter example.

 

A document filing system which filed all received applications chronologically might not be classed as a relevant filing system but would enable them to retrieve the document with a reasonable amount of work.

 

As far as I am aware there is as yet little case law in this area, but the objective of the revised DPA was to close up many of the loopholes in the original version where people managed to circumvent the rules.

[tomterm8]

I think if i understand what tomtom is saying that the surest way to get a copy (i.e. find out if they actually have one) is to request it as pre disclosure in a court case.. I'll leave it to tt though as this is way out of my knowledge zone!

 

OK. Let's clarify.

 

You send off for a true copy of your credit agreement. They send you back an agreement without your signature. That's legitimate.

 

 

You then send off a copy of the S.A.R. If they hold your credit agreement as part of a relevant filing system, they are obliged to send a copy to you. If they don't... if it's just in a box in your branch, they are not obliged to send it to you, even though they in fact have a copy of the credit agreement.

 

So you don't pay them, and then they issue you with a letter before action. As part of the Civil Procedure Rules, they are required to include a copy of any document they intend to rely on in court.

 

At this stage, you are entitled to require them to provide a photocopy of the credit agreement, and if they fail you can apply for a court order.

 

You can precipitate this by sending a LBA yourself, going through for example a section 10 notice under the Data protection act, or reclaiming penalty charges or etc. When a court action is imminant, the pre-trial protocols apply and you can use them to require disclosure of the credit agreement.

[Andy9012]

Thanks Tom, that makes it a lot clearer

[tomterm8]

Dear Tom

What does "relevant" mean in this context?

 

 

.........but, it appears, they can avoid showing their hand even under the Data Protection Act and the CCA 1974. No wonder we have so many lawyers, nothing like complete ambiguity eh?!

 

the definition in the act is :

• "relevant filing system" means any set of information relating to individuals to the extent that, although the information is not processed by means of equipment operating automatically in response to instructions given for that purpose, the set is structured, either by reference to individuals or by reference to criteria relating to individuals, in such a way that specific information relating to a particular individual is readily accessible.

the case law is both very extensive, and somewhat contradictory:roll: The key area of dispute is what "reasonable" means, LOL. In Durant v Financial Services Authority the Court of Appeal took the view that the Act intended to cover manual files "only if they are of sufficient sophistication to provide the same or similar ready accessibility as a computerised filing system".

 

EDIT: The case is written up http://www.hmcourts-service.gov.uk/judgmentsfiles/j2136/durant-v-fsa.htm you need point 32 & onwards.

[Monty2007]

Important Message from Morgan Stanley Bank International Limited

 

On 1st June 2007 your card agreement was assigned by Morgan Stanley Bank International Limited to Goldfish Bank Limited. This means that all your responsibilities under the agreement you owe to Morgan Stanley Bank International Limited will be intead be owed to Goldfish Bank Limited. Goldfish Bank Limited has also agreed with Morgan Stanley Bank Limited that withh perform all of MSBIL obligations it owes to you. In practical terms, this means that you will now be dealing with GBL in relation to your account. You can continue to use your card and you should continue to make payments in accordance with each statement that you recieve. If you make payments by direct debit, your payments will be collected as normal.

 

So the angle may be to request your original agreement on the basis of checking and confirming their rights and obligations with respect to assignment that is not subject to default (since the latter is covered in the Act).??

 

Thoughts and comments??

[tomterm8]

Does the information you've obtained so far suggest that any penalty charges have been put on the account?

[Monty2007]

So:

 

Dear MS

 

Please could you check all your relevant filing systems for my agreement since I need to confirm what obligations that I made in respect of your legal right to assign my credit agreement to a Goldfish.

 

Or something along those lines..........

 

PS> They hate being called Morgan Stanley Goldfish, I have found....

[Monty2007]

Does the information you've obtained so far suggest that any penalty charges have been put on the account?

 

Oh yes Tom, and some. Its about £1 K. They even stated that they would only pay 8% and NOT CI due to the case of Halliday v HBoS. In that case the claimant was claiming contractual interest of the charges PLUS County Court interest at the contractual rate as well. The judge ruled that the claimant was quite entitled to Contractual Interest on the charges, but only 8% County Court interest.

I have asked them for CI.

[tomterm8]

Have you asked them for full disclosure in your case? Or did you just rely on the S.A.R?

[Monty2007]

I asked them for all information that they hold on me under the 1998 Data Protection Act.

[tomterm8]

How far has the case gone?

[Monty2007]

They have offered to refund all charges plus 8% interest.

[noomill060]

In which case you say "thank you I will accept ONLY on the understanding that this represents part payment and that you intend to begin legal action to enforce the balance, Court fee and such County Court interest as the judge deems just.

 

Then do it.

[noomill060]

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-401.html

 

If anyone is interested in this subject.

[Monty2007]

Thanks noomill, I think everone is interested.

[Goldlady]

I have so far got rid of two DCAs on the basis that neither they nor the original lender can find original agreements. If they could get away with a 'true' copy which they have knocked up on the printer surely they would have sent me one? Or is that the difference between people asking generally and people who are on the verge of being taken to court?

[Goldlady]

I used a slightly altered signature on the cheques and the letters just incase they decided to do a bit of cutting and pasting

[tomterm8]

I have so far got rid of two DCAs on the basis that neither they nor the original lender can find original agreements. If they could get away with a 'true' copy which they have knocked up on the printer surely they would have sent me one? Or is that the difference between people asking generally and people who are on the verge of being taken to court?

 

Most DCA's will just go away when they realise that you know what you're doing... just aint worth their while.

 

Major banks are in a much tighter position... there are legal requirements, so they tend to use the loopholes more:) But they also don't sue, unless they have the paperwork:)

[Monty2007]

I agree, though the more experienced have suggested that they have fulfilled their obligation under the Act. I have therefore simply asked for a photocopy of the documents with my signature on, this is reasonable. They can say "yes" or "no" - if they say "no" then I will have reasonable suspicion that they are trying to hide something and will point this out.

 

What do they have to hide?

[tomterm8]

I agree, though the more experienced have suggested that they have fulfilled their obligation under the Act. I have therefore simply asked for a photocopy of the documents with my signature on, this is reasonable. They can say "yes" or "no" - if they say "no" then I will have reasonable suspicion that they are trying to hide something and will point this out.

 

What do they have to hide?

 

Good point... and refusing or ignoring such a basic written request will make them look like idjits in front of any court in the land:)

[noomill060]

Under an amendment to the CCA1974 called SI 1983/1553, they dont actually have to produce any document with a sig on it.

[noomill060]

Just a copy of the agreement will suffice for a s.78 request. A copy need not be a copy of the actual bit of paper you signed, but a copy identical in all other respects.

[Monty2007]

Dear Noomill, you are correct, they don't have to produce anything. I am simply going on the premise that I am making a reasonable request, all they have to do is out it on a photocopier and press copy.

 

I am not in default, within my credit limit (makes a change - lol) and they are offering me £1 k in back charges + 8%, plus lots of restrictive clauses that are not acceptable. I have counter-offered and wait their response. The CCA application was more out of interest than anything else since I other stuff going on with other ccc's.

 

I suspect that they will say "no" though becase I have been a complete pain for them, who said consumer banking was easy!

[Monty2007]

Interestingly I picked up a cc application in the Nationwide today and it had a combined application and agreement, it is a complete document and has all of the prescibed terms and both titles. They have obviously wised up. Nationwide are not on my list, though many of their mates are!

 

Needless to say I am not applying - I would get "computer says NO" or "call security".