Next Digital Signatures on CCA

[cadencealex]

Not exctly what i have read

 

 

 

 

 

 

 

 

 

They are danceing round thie issues as i thought they would, and basicaly saying we wont stop prscessing your data unless you take us to court.

 

Whether they can prove what they claim is another matter

 

 

I sent this back.

 

Ms Thank you for your recent email. I would like to raise two issues.

SCHEDULE 1 The data protection principles

Part I The principles

1 Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless—

(a) at least one of the conditions in Schedule 2 is met, and

(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

SCHEDULE 3 Conditions relevant for purposes of the first principle: processing of sensitive personal data

 

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

2 (1) The processing is necessary for the purposes of exercising or performing any right or obligation which is conferred or imposed by law on the data controller in connection with employment.

(2) The Secretary of State may by order—

(a) exclude the application of sub-paragraph (1) in such cases as may be specified, or

(b) provide that, in such cases as may be specified, the condition in sub-paragraph (1) is not to be regarded as satisfied unless such further conditions as may be specified in the order are also satisfied.

3 The processing is necessary—

(a) in order to protect the vital interests of the data subject or another person, in a case where—

(i) consent cannot be given by or on behalf of the data subject, or

(ii) the data controller cannot reasonably be expected to obtain the consent of the data subject, or

(b) in order to protect the vital interests of another person, in a case where consent by or on behalf of the data subject has been unreasonably withheld.

4 The processing—

(a) is carried out in the course of its legitimate activities by any body or association which—

(i) is not established or conducted for profit, and

(ii) exists for political, philosophical, religious or trade-union purposes,

(b) is carried out with appropriate safeguards for the rights and freedoms of data subjects,

© relates only to individuals who either are members of the body or association or have regular contact with it in connection with its purposes, and

(d) does not involve disclosure of the personal data to a third party without the consent of the data subject.

5 The information contained in the personal data has been made public as a result of steps deliberately taken by the data subject.

6 The processing—

(a) is necessary for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings),

(b) is necessary for the purpose of obtaining legal advice, or

© is otherwise necessary for the purposes of establishing, exercising or defending legal rights.

7 (1) The processing is necessary—

(a) for the administration of justice,

(b) for the exercise of any functions conferred on any person by or under an enactment, or

© for the exercise of any functions of the Crown, a Minister of the Crown or a government department.

(2) The Secretary of State may by order—

(a) exclude the application of sub-paragraph (1) in such cases as may be specified, or

(b) provide that, in such cases as may be specified, the condition in sub-paragraph (1) is not to be regarded as satisfied unless such further conditions as may be specified in the order are also satisfied.

8 (1) The processing is necessary for medical purposes and is undertaken by—

(a) a health professional, or

(b) a person who in the circumstances owes a duty of confidentiality which is equivalent to that which would arise if that person were a health professional.

(2) In this paragraph “medical purposes” includes the purposes of preventative medicine, medical diagnosis, medical research, the provision of care and treatment and the management of healthcare services.

9 (1) The processing—

(a) is of sensitive personal data consisting of information as to racial or ethnic origin,

(b) is necessary for the purpose of identifying or keeping under review the existence or absence of equality of opportunity or treatment between persons of different racial or ethnic origins, with a view to enabling such equality to be promoted or maintained, and

© is carried out with appropriate safeguards for the rights and freedoms of data subjects.

(2) The Secretary of State may by order specify circumstances in which processing falling within sub-paragraph (1)(a) and (b) is, or is not, to be taken for the purposes of sub-paragraph (1)© to be carried out with appropriate safeguards for the rights and freedoms of data subjects.

10 The personal data are processed in circumstances specified in an order made by the Secretary of State for the purposes of this paragraph.

My conclusion is, that it is not enough for Next Director to rely on Schedule 2, as the data is financial data and is therefore "sensitive data" so you are required to meet at least one requirement of Schedule 3, which you cannot without me giving my explicit consent, which I did not.

 

Also, the quote from (Wilson V First County Trust 2003) is highly selective, the text of the judgment also states that where an agreement is unenforceable at law, you may not use common law to avoid this, which is what you are suggesting.

[blind-as-a-bat]

As you are willing and/or able to repay what you owe cadencealex, and that a court in a civil matter does not work on absolute proof, but what is most probebly the case in light of the situation and evidence presented too that court your situation could be intresting.

 

to issue a default notice Next have to rely on the CCA act, and quote it is issued in line with sec 87(1)

 

87

.—(1) Service of a notice on the debtor or hirer in accordance with section 88 (a "

default notice ") is necessary before the creditor or owner can become entitled, by

reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as

terminated, restricted or deferred, or

(e) to enforce any security.

 

sec 88 states

88

.—(1) The default notice must be in the prescribed form

and specify—

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it

and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be

paid as compensation for the breach, and the date before which it is to be paid.

(2) A date specified under subsection (1) must not be less than seven days after the

date of service of the default notice, and the creditor or owner shall not take action

such as is mentioned in section 87(1) before the date so specified or (if no requirement

is made under subsection ( 1)) before those seven days have elapsed.

(3) The default notice must not treat as a breach failure to comply with a provision of

the agreement which becomes Operative only on breach of some other provision, but

i£ the breach of that other provision is not duly remedied or compensation demanded

under subsection (I) is not duly paid, or (where no requirement is made under

subsection ~1)) if the seven days mentioned in subsection (2) have elapsed, the

creditor or owner may treat the failure as a breach and section 87(1) shall not apply to

it.

(4) The default notice must contain information in the prescribed terms about the

consequences of failure to comply with it.

(5) A default notice making a requirement under subsection (1) may include a

provision for the taking of action such as is mentioned in section 87(1) at any time

after the restriction imposed by subsection (2) will cease, together with a statement

that the provision will be ineffective if the breach is duly remedied or the

compensation duly paid.

 

Now without an agreement what exactly is there too breach? nothing

 

So they cannot issue a valid default as it is imposible to state the nature of the breach.

 

They cannot state you did not keep up with your agreement to re-pay the account for example, because there never was an agreemant made between yourself and NEXT that they could prove that you agreed to re-pay it at all, never mind at what rate.

 

However, you have had goods, and you have not re-payed Next for them, while that argument should have no weight in law as stated by Sir Morret, not all judges see it that way

 

So in a way your in a good position to take the morall high ground here, that is you know you dont have to pay a thing, and that is supported in law, but you are willing too.

 

Next have no basis in any form of document to support there reports to the CRA's, yet they have, damaging your reputation

 

I would like to think a Judge would view that in you favour.

 

The evidence that can be produced in this case is that a ballence is outstanding, you do not deny that, and wish to re pay what you owe, there is no evidence that you have breached anything however as there was never a formal, legaly binding agreemant between yourself and Next, so even though you where/will be/are doing the right or moral thing, Next penalised you for it.

 

I cant see how a judge could find in there favour to be honest, but as you know nothing is certain

[cadencealex]

Thanks Blind.

 

I think I am going to pay a substantial amount off the balance, get their final response from the matter, and then take it to Court.

 

I hope the Judge will view me favourably because I am actually paying it.. and Next get in trouble for not following the LAW!!!

 

What do you think?

 

Will you help me build a case?

[blind-as-a-bat]

I will where i can:), i am not that hot on the actuall court proscess from the point of view as a claiment, but i am pretty good ad reading the regs that surround the CCA, my only worry is the way the courts apply them is not always as they are written, so makes it hard to advise anyone exactly what to do.

 

As for building a case, at least in theory, we already have in this thread most of the bits that may be usefull

 

It would be nice to see a court support the debtor in a case like yours, the act was made to protect the consumor, not the creditor, from just this sort of behaviour of the creditor, just wish the regulatory bodies could do it though instead of having to take it through the courts.

[cadencealex]

I will where i can:), i am not that hot on the actuall court proscess from the point of view as a claiment, but i am pretty good ad reading the regs that surround the CCA, my only worry is the way the courts apply them is not always as they are written, so makes it hard to advise anyone exactly what to do.

 

As for building a case, at least in theory, we already have in this thread most of the bits that may be usefull

 

It would be nice to see a court support the debtor in a case like yours, the act was made to protect the consumor, not the creditor, from just this sort of behaviour of the creditor, just wish the regulatory bodies could do it though instead of having to take it through the courts.

 

Well they are not following the CCA regulations, so I can't say how they can say it is acceptable for them to process my data!

 

Would you take that as a final response letter then? Their last comments?

 

Apparently the FOS wont deal with the complaint, should I wish to complain to them because I took it out after April 2007. I don't believe that for one minute!!

 

I think I need a thread on how to take them to Court. Sod it, I am annoyed with them now.

[blind-as-a-bat]

They do imply it is a final responce in the blurb t the bottem, but dont say so directly, i doubt they will back down to be honest, so further letters may be a waste of time, but does show your attempts to be reasonable, so can work in your favour if worded correctly.

 

Rule one though is never do anything while your angry;-)

(rule number two, i should practice what i preach:p so yes i have done it too:lol:)

 

It may be worth running it past Trading Standards first, make it clear you just want there views on it for now, if they seem to take your side you can then allow them to contact Next, but i would advise denying them permision to do so until you see how they react.

 

I would also ask FOS if what they say is correct, i know littlewoods used to try that one, and im not sure its correct, but FOS can sometimes hurt your case, should you take it to court, if they side with the creditor so you have to be carefull there.

 

It wouldnt hurt posting a thread in the legal section, see if any of the legal guys over there have any comments:)

[cadencealex]

They do imply it is a final responce in the blurb t the bottem, but dont say so directly, i doubt they will back down to be honest, so further letters may be a waste of time, but does show your attempts to be reasonable, so can work in your favour if worded correctly.

 

Rule one though is never do anything while your angry;-)

(rule number two, i should practice what i preach:p so yes i have done it too:lol:)

 

It may be worth running it past Trading Standards first, make it clear you just want there views on it for now, if they seem to take your side you can then allow them to contact Next, but i would advise denying them permision to do so until you see how they react.

 

I would also ask FOS if what they say is correct, i know littlewoods used to try that one, and im not sure its correct, but FOS can sometimes hurt your case, should you take it to court, if they side with the creditor so you have to be carefull there.

 

It wouldnt hurt posting a thread in the legal section, see if any of the legal guys over there have any comments:)

 

 

I think I will do that. Interesting about FOS being damaging.

 

Bloody nightmare this!

 

I posted in the legal section which is where I got the advice to reply - it is titled About them not complying with Section 10.

 

In work at the moment so struggling to get much done on this!

[cadencealex]

OK... Next have confirmed that this is their final response.

 

So, do I push this in Court?

 

They ARE going to refer it to a DCA, which I don't want.

[cadencealex]

I have had their final response, they told me the FOS wont be interested.

 

I want to take them to Court over processing my data (adding a default).

 

They haven't complied with the Data Protection S10 and say they don't have to.

 

Where do I begin?

[supasnooper]

Have a read of this link, it may help -

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110146-car2403-hfc-bank-default.html

[cadencealex]

Have a read of this link, it may help -

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110146-car2403-hfc-bank-default.html

 

 

Thank you. Will have a good read.

 

Also just realised they are in default of the 12+2 day rule for sending me a CCA. Although I sent them a S10 afterwards, and they responded to that saying they don't have to comply.

 

Am quite confused. Do I file this on mcol - I am not after money though?!

[supasnooper]

Sorry about the link I've posted as it's not the one I thought it was.

 

Try this one -

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/111211-defaults-background-removal-methods.html

[cadencealex]

Sorry about the link I've posted as it's not the one I thought it was.

 

Try this one -

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/111211-defaults-background-removal-methods.html

 

 

Great.. that's what I am looking for .. particulars

 

Saw an excellent one somewhere but can't find it again!

 

Most I have found are for defending, whereas I am going to initiate the claim. Can I use MCOL for this?

[DocH]

Most I have found are for defending, whereas I am going to initiate the claim. Can I use MCOL for this?

 

I don't believe you can for this type of claim as it does not involve money. The following is taken from Practice Direction 7e:

 

Types of claims which may be started using Money Claim Online

 

4.

 

A claim may be started using Money Claim Online if it meets all the following conditions –

(1) the only remedy claimed is a specified amount of money –

(a) less than £100,000 (excluding any interest or costs claimed); and

 

(b) in sterling;

 

 

(2) the procedure under Part 7 of the Civil Procedure Rules (CPR) is used;

 

(3) the claimant is not –

(a) a child or protected party; or

 

(b) funded by the Legal Services Commission;

 

 

(4) the claim is against –

(a) a single defendant; or

 

(b) two defendants, if the claim is for a single amount against each of them;

 

 

(5) the defendant is not –

(a) the Crown; or

 

(b) a person known to be a child or protected party; and

 

 

(6) the defendant's address for service is within England and Wales.

 

 

(‘Protected party’ has the same meaning as in rule 21.1(2).)

[cadencealex]

Will find my way around N1 then and do it in the local Court. I believe you can add more info to an N1 anyways

 

 

There is several things I want to get in so am going to spend alot of time preparing the Particulars of Claim.. .

 

BUT have just seen on another thread, a letter a guy sent to Next which prompted them to ring up and offer to remove the Default!

 

This is the letter... I have amended it to suit me.. and am debating whether to send it or not.

 

 

 

Dear Mr Wolfson,

 

I am writing to you personally in your capacity as Chief Executive of Next Plc to inform you of a serious matter regarding the supply of documentation in relation to the above account which has, to date, not been forthcoming.

I contacted Next Directory of my own accord, after noticing the Default marker on my Credit File. Neither Next Directory, nor Lewis have contacted me about this matter since 2007, of which Next Directory were very surprised to hear.

 

For your information I enclose previous correspondence between myself and Lynne Willan (Customer Relations Department) which details my original request for the agreement relating to the above account as is my right under the Consumer Credit Act 1974 (CCA), dated 15th January 2009, as well as subsequent replies which have confirmed in writing that no Valid Agreement exists for this account. I then requested under S10 of the Data Protection Act 1998 and again, was refused disclosure of this information without a suitable, and valid legal reason.

I understand, and am aware of, section 3(2) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations which allow signatures to be omitted in response to a Section 78 request under the CCA but what I require, and I am sure you would agree is appropriate, is an Original and Fully Executed Credit Agreement and not the generic blank and unsigned document that has been supplied to me along with somewhat misleading statements relating to Case Law. All documents between myself and Next Directory will be used in Court to add further proof that Next do not hold a fully executed Credit Agreement, in accordance with the Consumer Credit Act 1974.

 

 

 

For your information the relevant Legislation is clear in that:

 

s61 CCA - Signing of agreement:

(1) A regulated agreement is not properly executed unless—

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

s127(3) CCA:

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

I feel I have stated my position clearly and patiently on this matter and in past communications and after seeking Legal advice am confident that the generic and non-compliant agreement that has been received along with written confirmation from Next Plc that no Original Agreement exists for the above account will allow the 'agreement' in question to be rendered unenforceable should this matter proceed to County Court.

 

To resolve this unsatisfactory situation I require:

 

The removal of all adverse data held on file with the Credit References Agencies to include late payment markers and any Defaults with immediate effect.

The Credit Reference Agencies comprise of Equifax, Call Credit and Experian.

 

Failure to comply on any of these points as stated or to reach an agreeable settlement arrangement within 14 days of receipt of this Notice of Intended Litigation will be responded to with a Summons issued in the County Court and if so, I give further notice that I will request an order for all Costs involved for bringing such Action.

If this issue is forced to the County Court, I shall therefore also be requesting:

 

 

1. The balance on the above account returned to Zero and any obligation to pay discharged in Full.

 

2. A full refund of all payments made to you in the mistaken belief that a valid and enforceable agreement existed.

 

Should you be unwilling to enter into negotiations to resolve this matter out of Court then please pass this correspondence on to your Legal Department for their immediate attention and since this letter is the first stage of intended court action I may be forced to instigate, you are required under the general pre-action protocol of the CPR to send me any information I request. Please therefore supply me with a copy of any and all documents in your possession that you will be relying on as a defence to this claim.

 

I look forward to hearing from you and hope we can resolve this matter in a civil manner and without wasting the Courts valuable time.

 

 

Yours sincerely

[DocH]

The N1 does allow for much more info. If you have not got one, you can get one from here:

 

The requested resource (/HMCSCourtFinder/tiles/Her Majesty's Courts Service -Forms and Guidance) is not available

 

As you should send a letter before action anyway, this one seems entirely suitable for your needs.

[DocH]

If you applied for an account online, is it subject to the Digital Signatures amendment?!

 

I took the account out in September 2004 and was under the impression that the Act wasn't amended until later?

 

31 December 2004 is the 'Coming into force' date:

 

The Consumer Credit Act 1974 (Electronic Communications) Order 2004 No. 3236

 

Catalogue company don't have a CCA that I signed, yet are saying I accepted terms and conditions every time I placed an order, and it is also valid online.

 

Would be interesting to see what they would base their claim on if they ever took you to court

[noomill060]

Only way they dont need a valid CCA is if they can prove to a court you have made payments for goods from your account. If this is the case then the judge will say you obviously had an agreement to order the goods therefore pay the debt.

 

Not sure how often this has been done but it can be

 

 

Sorry james, this is total and utter bollocks.

 

Unless you know what you are talking about, please dont make statements which you cannot substantiate.

[cadencealex]

31 December 2004 is the 'Coming into force' date:

 

The Consumer Credit Act 1974 (Electronic Communications) Order 2004 No. 3236

 

 

 

Would be interesting to see what they would base their claim on if they ever took you to court

 

 

 

 

God knows... one bloke there said it was my mistake as I forgot to return the signed agreement.... oops!! Thankfully, I have got so much better at signing and returning things in the last few years

[version302003]

hi cadencealex, can I ask what catalogue it is?

 

 

[cadencealex]

hi cadencealex, can I ask what catalogue it is?

 

 

 

 

It is Next Directory

[cadencealex]

I have never seen such a pathetic default Notice in all my life!! My final response letter arrived today with my Default notice they sent me!!

 

Going to put it up in a minute

[blind-as-a-bat]

 

 

Thats the last one i saw Next claiming to be DN, can you beat it:p

[cadencealex]

 

 

Thats the last one i saw Next claiming to be DN, can you beat it:p

 

 

Blimey Bat I don't know... think it's a Draw

 

[blind-as-a-bat]

Ok apart from other things, the amount of days the DN should allow for the debtor to remady the breach was changed from 7 to 14 days on

19th December 2006, so i need to know the dates it was written and the date it states it must be remadied by