Cap1 & CCA return

[patrickq1]

morning all isnt the new directives out in oct 07 from what i read a few weeks ago ,i will check hansard first tho then put it on this thread

patrickq1

[maybelline]

BBC NEWS | UK | Experts call for DNA restrictions

 

on the subject of holding data - about time this was challenged! dna of kids kept even though not charged with anything, I strongly disagree.

[patrickq1]

Consultation on the Draft Regulatory Enforcement and Sanctions Bill

i am not sure if it is in here mike clause 7

but i will find the bill due out for oct its in my files but ive got about 20gb of files ,typcle of me they are everywhere except where you want them lol

i agree DNA IS A TOUCHY SUBJECT BECAUSE IT WILL END UP IN THE HANDS OF THE INSURANCE COMPANIES

REGARDLESS OF DPA AND ALL THEIR BU****IT CRONIES

[kennyparkroad]

agreed

[Peterbard]

Have u seen the latest response I got from a TEAM MANAGER in TS? since when are the government decriminalising offences under the act?:

 

Hi

 

Typical of the resonses we are getting from TS just lately the phase is being decriminalised for instance if anything this confirms that the breach is currently criminal so does not explain why fo action is being taken . Regarding whether the DCA is the creditor this is taken care of by section 189 of the act which says

“creditor” means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor;

 

Best regards

Peter

[JulesTools]

Hi there - sorry to butt in with a simple question.

 

Current account overdrafts are not covered by part V of the CCA 1974. (although classed as running credit)

 

Hence s.77 s.61 etc don't apply.

 

Is that correct and is there a quick reference to the facts ?

 

Thank you

 

Jules

[monopoly23]

Hi everyone.

As some of you may know, Im in court tomorrow with next and I just have a question for anyone that may know.

 

They have admitted in writing that no agreement exists for the account, but after a CCA request they sent this mailer, obviously Ive removed details:

 

 

Now it refers to Terms and Conditions in there but it's mostly illegible and I know it doesn't give them any rights or whatever. What I need to know though is, if they say 'you've signed this so you owe us money' what law and arguement do I use?

[Peterbard]

Hi there - sorry to butt in with a simple question.

 

Current account overdrafts are not covered by part V of the CCA 1974. (although classed as running credit)

 

Hence s.77 s.61 etc don't apply.

 

Is that correct and is there a quick reference to the facts ?

 

Thank you

 

Jules

 

Hi

 

Overdrafts are normally not subject to those elements of the Act governing form and content of an agreement(sectionV). This is because the OFT has issued a Determination under Section 74(3) of the Act excluding overdraft agreements from the need to comply. As a result of this there is usually no written agreement that a consumer can request under Section 78 of the Act. However, I should note that any Bank wishing to avail itself of the benefit of the Determination must notify the OFT of its intention to do so and is required to provide information to the prospective debtor. Specifically, the creditor must provide, in writing, at the time the agreement is concluded or before details of the credit limit if any, the annual rate of interest and any charges available, and the process for terminating the agreement.

Typically banks make such information readily available via a variety of media on an ongoing basis.

I went through all this with my sons student account,.Bank accounts of course are not covered by the cca as they are regulated by the FSA and there fore do not have to produce documents asked for under that act, the overdraft however is unfortunately due to it's exception from part V their is no agreement made so none can be provided .

 

Best regards

Peter

[shane5408]

Hi everyone.

As some of you may know, Im in court tomorrow with next and I just have a question for anyone that may know.

 

They have admitted in writing that no agreement exists for the account, but after a CCA request they sent this mailer, obviously Ive removed details:

 

 

Now it refers to Terms and Conditions in there but it's mostly illegible and I know it doesn't give them any rights or whatever. What I need to know though is, if they say 'you've signed this so you owe us money' what law and arguement do I use?

 

 

Hi Monopoly,

 

Having had a quick scan over your threads you really don't have anything to worry about, on the merits of the case the only real chance of next winning is if you fail to show up!

 

the defence that laiste drafted for you is very good, however in this instance the creditors have completely shot theselves in the foot! In their statement of truth point 2 claims 'the agreement was evidenced in writing.' yet they have sent you a letter in response to your CCA request unequivocally stating that 'Next do not hold a signed credit agreement and that under section 127(3) of the consumer credit act 1974 they know that the debt is unenforcable!

 

to be honest i would be surprised if they turned up, it seems to me they decided on a course of action as to who blinks first, they hoped if they filed court proceedings and instigated matters you would fold but credit to you you didn't and now your almost to the finish line!

 

regards,

shane

[patrickq1]

I would be very interested if you were to post a scan of the exact format of the words. the statement of protection under the Data protection Act 1998 requires a very specific format, and any attempt to require you to waiver its protections would be both illegal and unlawful.

 

Further, any attempt to waiver rights convention rights, which the data protection act incorportates into law, would be void. it would also, de facto, establish an unfair relationship under the Consumer Credit Act 2006.

 

It is more likely that the document is actually attempting to inform you that your data may be lodged with credit reference agencies.

right as usual tom but also the fact that they wish to share your data with other gives them carte blanche to sharing with whoever this is one that was posted on another thread and in it they say if you object you can write to them ...WHY should anyone need to write .it should be the reverse they should send you a contract asking you seperately otherwise you cannot sign the documents for much needed finance in most instances effectively you are in a no win sitiation..Hi Patrick,

 

Creditcare is indeed PPI although I cannot remember asking for this.

 

 

The terms at the top are:

 

The information supplied in the application form will be used by us for assessing your application for credit by a process know as ‘Credit Scoring’ and this information and information relating to your Agreement will be held by us in our computer records. We may disclose information to Credit Reference Agencies where it may be used by us and others in assessing you for credit in the future. The information held by us may be used to offer you new services which we think might be of interest to you and may be disclosed to companies in the Bank of Scotland Group and to others from time to time for this and other purposes subject to the provisions of the Data Protection Act 1984. If you do not want your information to be used for marketing purposes please inform us in writing at Marketing Department, NWS BANK plc NWS House, City Road, Chester CH99 3AN

 

 

so as you can see its a term if you dont sign their agreement you dont get....

[Mike220359]

I would agree I have not seen anything about any decriminalisation.

 

Mike

 

Just looked at the Consultation Paper on the Draft Regiulatory Enforcement and Sanctions Bill, it seems that TS will be going through a bit of a reorganisation since

 

In 2005, Philip Hampton published his report

"Reducing Administrative Burdens", which showed the

importance of proportionate enforcement in delivering

better outcomes on the ground – in the form of fairer

markets, safer communities, a better environment for

business, and economic growth. He identified two practical obstacles to delivering a proportionate and effective system of regulatory enforcement there were difficulties in communications amongst national and local regulators, and there was inflexibility in an enforcement regime that restricted regulators to processes of criminal prosecution.

 

The draft Bill will take two important steps towards implementing his vision. Part One will give the Local Better Regulation Office statutory powers to promote better communication amongst local authorities, and between them and central government, providing a better basis for regulators to work together to keep the burdens of regulation to a minimum. The new enforcement powers in Part Two will allow regulators to respond in ways that are transparent, flexible, and proportionate - including responding to those who deliberately seek to gain an advantage over honest businesses by disregarding the law.

 

I believe that the Bill will have important benefits for all of us - for business, for regulators, for local and central government, and, above all, for citizens, who will benefit from the outcomes of a more effective regulatory system.

 

Well ther you have it, there is in essence a vehicle that may allow lenders to get away with more unlawful practices than they do at present.

 

However, on the face of it the Quango that the act will set up will have regulatory powers similar to those enjoyed by the OFT and IC. In some ways the gent at TS is correct there may be a 'decriminilisation' of the some aspects of the CCA 1974 (as amended) indeed the specific sections affected are listed in the annex, and these include sections 77,78 and 85. However, there is nothing that I have gleaned from the text that leads me to think that defaulting on those sections will lose its effcts, it just that the enforcment becomes the remit of the new quango through TS rather than the courts.

 

As I see it although the FSA are one of the consultees of the draft bill, there does seem to be a lack of idea as to how these two bodies will coexist.

 

Mike

[Peterbard]

Hi

Mike

 

Ths was drafted in 2005 is their any news of it's current possition in regards to passage through parliament also do you know wheather this was presented as a public bill and it's title

 

Regards

Peter

[Mike220359]

Yep its the Consultation Paper on the Draft Regiulatory Enforcement and Sanctions Bill 2007, it was published earlier this year with submissions required by september 28th 2007. If you google the above you should go straight to it.

 

Mike

[Peterbard]

HI Mile

 

Thanks for that

Just scanned it i think the TS are being a bit premature if this is the Bill they are refering to it hasn't even been prsented to the house yet and is stilli n its pre legaslative review stage. I can not see any mention of decriminalisation of any aspect of the CCA as yet

 

Best regards

Peter

[JulesTools]

Hi

 

Overdrafts are normally not subject to those elements of the Act governing form and content of an agreement(sectionV). This is because the OFT has issued a Determination under Section 74(3) of the Act excluding overdraft agreements from the need to comply. As a result of this there is usually no written agreement that a consumer can request under Section 78 of the Act. However, I should note that any Bank wishing to avail itself of the benefit of the Determination must notify the OFT of its intention to do so and is required to provide information to the prospective debtor. Specifically, the creditor must provide, in writing, at the time the agreement is concluded or before details of the credit limit if any, the annual rate of interest and any charges available, and the process for terminating the agreement.

Typically banks make such information readily available via a variety of media on an ongoing basis.

I went through all this with my sons student account,.Bank accounts of course are not covered by the cca as they are regulated by the FSA and there fore do not have to produce documents asked for under that act, the overdraft however is unfortunately due to it's exception from part V their is no agreement made so none can be provided .

 

Best regards

Peter

 

Thank you Peter, for the confirmation - It is appreciated.

 

Jules

[Josie8]

Hi Monopoly,

 

Having had a quick scan over your threads you really don't have anything to worry about, on the merits of the case the only real chance of next winning is if you fail to show up!

 

the defence that laiste drafted for you is very good, however in this instance the creditors have completely shot theselves in the foot! In their statement of truth point 2 claims 'the agreement was evidenced in writing.' yet they have sent you a letter in response to your CCA request unequivocally stating that 'Next do not hold a signed credit agreement and that under section 127(3) of the consumer credit act 1974 they know that the debt is unenforcable!

 

to be honest i would be surprised if they turned up, it seems to me they decided on a course of action as to who blinks first, they hoped if they filed court proceedings and instigated matters you would fold but credit to you you didn't and now your almost to the finish line!

 

regards,

shane

 

Wilson v First County Trust Ltd [2003] UKHL 40 states that:

‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to FCT's right to recover the total sum payable on redemption, which included the principal as well as interest.’

And further that :

“The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan.”

[tomterm8]

right as usual tom but also the fact that they wish to share your data with other gives them carte blanche to sharing with whoever this is one that was posted on another thread and in it they say if you object you can write to them ...WHY should anyone need to write .it should be the reverse they should send you a contract asking you seperately otherwise you cannot sign the documents for much needed finance in most instances effectively you are in a no win sitiation..Hi Patrick,

 

Creditcare is indeed PPI although I cannot remember asking for this.

 

 

The terms at the top are:

 

The information supplied in the application form will be used by us for assessing your application for credit by a process know as ‘Credit Scoring’ and this information and information relating to your Agreement will be held by us in our computer records. We may disclose information to Credit Reference Agencies where it may be used by us and others in assessing you for credit in the future. The information held by us may be used to offer you new services which we think might be of interest to you and may be disclosed to companies in the Bank of Scotland Group and to others from time to time for this and other purposes subject to the provisions of the Data Protection Act 1984. If you do not want your information to be used for marketing purposes please inform us in writing at Marketing Department, NWS BANK plc NWS House, City Road, Chester CH99 3AN

 

 

so as you can see its a term if you dont sign their agreement you dont get....

 

Excuse me, but is the agreement actually recent? The reference to the data protection act 1984 is inaccurate and irrelevant. If the agreement was within the last 6 years, it is likely that they failed to include the correct form of statement of protection; this would invalidate any consent.

[Rhia]

Dear all I have a jpeg image of a so called agreement I would like to paste on here for your consideration but seem to be having a brain fog as can't work out how to paste the bluddy thing.Advice and assistance is very welcome.

[BLADES65]

Excuse me, but is the agreement actually recent? The reference to the data protection act 1984 is inaccurate and irrelevant. If the agreement was within the last 6 years, it is likely that they failed to include the correct form of statement of protection; this would invalidate any consent.

 

Hi Tom,

 

That extract is from my agreement and dates back to 1995.

[MoonHawk]

Dear all I have a jpeg image of a so called agreement I would like to paste on here for your consideration but seem to be having a brain fog as can't work out how to paste the bluddy thing.Advice and assistance is very welcome.

Click on the "Go Advanced" button below teh reply box at the bottom and then use the button "Manage Attachements".

 

Make sure you have blanked out your personal details.

 

Best Wishes

MoonHawk

[tomterm8]

Dear all I have a jpeg image of a so called agreement I would like to paste on here for your consideration but seem to be having a brain fog as can't work out how to paste the bluddy thing.Advice and assistance is very welcome.

 

Having had a peek, it's not enforceable.

 

I've sent you a little bonus in your e-mail:)

 

Hi Tom,

 

That extract is from my agreement and dates back to 1995.

 

Ah... in that case, all basically appears OKish.

 

ya still can't waive the rights of Data Protection Act 1984, but the prescribed formats were not so thorough as they are now.

[patrickq1]

this is part of a contract that the estate agents have inserted into the agreement

DATA PROTECTION AND CONFIDENTIALITY

letting agent may share details about performance of obligations under this agreement by the landlord and tenant :past,present and future known addresses of parties ,with each other,with credit and referance providers for referancing purposes and rental decisions,with utility and water companies,local authority council tax and housing benefit departments Mortgage lenders to help prevent dishonesty for administrative and accounting purposes,or for occasional debt chasing and fraud prevention.under the data protection act 1998 you are entitled,on payment of a fee which will be no greater than that set out by ststute,to see a copy of personal information held about you and to have it amended if it is shown to be incorrect,If you do not want your information to be used for marketing purposes please inform us in writing ...

this is more or less simmallar to what i have had in the last six weeks from three agreements one was from BENEFICIAL FINANCE and i wrote simmallar on this that i object and corrected it to what i wanted to see....not arguing tom but this as i have said it should nt be in any contract because most companies insist and you know that when people really need the money they have nt got much choice for fear of rejection....

[patrickq1]

Hi Tom,

 

That extract is from my agreement and dates back to 1995.

thanks blade i was looking for your thread before i could nt find it....cheers

patrickq1

[tomterm8]

this is part of a contract that the estate agents have inserted into the agreement

DATA PROTECTION AND CONFIDENTIALITY

letting agent may share details about performance of obligations under this agreement by the landlord and tenant :past,present and future known addresses of parties ,with each other,with credit and referance providers for referancing purposes and rental decisions,with utility and water companies,local authority council tax and housing benefit departments Mortgage lenders to help prevent dishonesty for administrative and accounting purposes,or for occasional debt chasing and fraud prevention.under the data protection act 1998 you are entitled,on payment of a fee which will be no greater than that set out by ststute,to see a copy of personal information held about you and to have it amended if it is shown to be incorrect,If you do not want your information to be used for marketing purposes please inform us in writing ...

this is more or less simmallar to what i have had in the last six weeks from three agreements one was from BENEFICIAL FINANCE and i wrote simmallar on this that i object and corrected it to what i wanted to see....not arguing tom but this as i have said it should nt be in any contract because most companies insist and you know that when people really need the money they have nt got much choice for fear of rejection....

 

According to the Data protection Act 1998, a party of the contract is entitled to process data in order to maintain the contract, and to process data before the contract takes effect in order to carry out legitimate tasks (such as, investigate your credit record)

 

Third parties are entitled to process data in accord with their legitimate interests*, and several court cases have established that data held with the credit reference agencies are held in accord with the CRA leigimate third parties interest.

 

These are de facto legal rights, implied into all contracts by statute and existing irrespective of the terms of the contract; the terms you are quoting simply inform you how they would use the data, they do not waive or alter the party rights, and IMHO do not establish consent within the meaning of the act ( in any case, such consent can be withdrawn at any time).

 

hope this helps.

 

* However, the DPA needs to be read in conjunction with the directive discussed earlier; in this case, the rights of the individual are weighed against the rights of the third party.

[patrickq1]

i accept theDPA but i do object to the sharing of data with third parties yes POLICE AND LOCAL AUTHORITIES and CRA...that is it nothing more nothing less not for debt chasing not for marketing purposes and i certainley do want to be asked to write to them to object either ,this should nt be there and i certainley did not like the term debt chasers ,i have also noticed one thread on here where it was an entire page of the contract we reserve this we reserve that but will look for it ,it could be a credit card contract possibly egg but not sure ....