Cap1 & CCA return

[shooter001]

Quite right

 

shooter001 ... have you sent and S.A.R - (Subject Access Request) and received it? If so look and see if a cancellation notice is recorded as being sent. If they have not recorded it in your account records they can not claim they sent it

 

Best Wishes

MoonHawk

 

I have sent a SAR and received copies of transactions and my agreement excluding terms and conditions and cancelation rights. They have already been reported to the information commisioner for late and missing documents.

 

Do you think I should wright asking for these copies as I didn't specificaly ask for them, or should they have included them anyway.

 

If they were to send me a copy of cancelation rights and say they sent them but have no proof of being sent then it doesn't stand? Is that right?

 

regards,

 

Craig.

[shooter001]

Shooter, to fully comply with your request they must send the terms and conditions that the agreement refers to.

 

In my opinion, though, a judge could enforce that as it is a document containing all precribed terms and it is signed by you.

 

I thought the CCA copies they sent me do not contain all the prescribed terms, as the ones I posted are copies that were not actualy part of the original agreement but a newley printed agreement which has a blank signature box. It may be a different version for all I know.

 

perhaps I should write and say I am missing the terms and conditions and see if they send me just a standard print out or the original copies.

 

As I can see it on the Loan Agreement they provided it is one and a half pages. And the terms and conditions are to be kept by the creditor only. This breaks the agreement and makes it in 2 parts doesn't it? Then wouldn't that mean it is not part of the body of the agreement?

 

regards,

 

craig.

[ian1969uk]

If the SAR does not indicate that the cancellation docs were sent, they cannot claim to have sent them.

 

As to your agreement, you have signed a document containing the amount of credit, the APR and the repayment schedule. This is enough to make it enforceable in court.

 

Unless, of course, they didn't send you the cancellation docs which would make the whole agreement unenforceable by itself.

[Having_A_Knightmare]

Subscribing

[MoonHawk]

If the S.A.R - (Subject Access Request) does not indicate that the cancellation docs were sent, they cannot claim to have sent them.

 

As to your agreement, you have signed a document containing the amount of credit, the APR and the repayment schedule. This is enough to make it enforceable in court.

 

Unless, of course, they didn't send you the cancellation docs which would make the whole agreement unenforceable by itself.

 

That about sums up my understanding (Hi Ian)

 

Shooter, as Ian says if they have not sent any details of a cancellation notice to you then they can not claim they sent you one. SAR is for ALL documents relating to you. If there was anything that was not included because they could not retrieve it etc. they have a duty to tell you.

 

I agree with Ian that your first document can be used by a judge to enforce the agreement as it has all the terms on it (see bottom of post #8581 in red). BUT if it is a cancellable agreement which it is (their own wording says they will send you the details) then they have a duty to send them and if not the judge has to apply section 127(3) as posted by Seahorse in post #8586.

 

What you could do is write back to the data controller that sent you the docs and ask if there are any missing documents as you are missing records of cancellation notice being sent to you and can not remember receiving them. Then see what they say. Either way it sucks for them, because if they did not send it with the SAR and have it or record of it they fall foul of the DPA.

 

Once that is clear then you can proceed

 

Out of interest did they send you a copy of the agreement with the SAR or did you have to get it separately? If they did not send it you can report them to ICO.

 

Best Wishes

MoonHawk

[shooter001]

That about sums up my understanding (Hi Ian)

 

Shooter, as Ian says if they have not sent any details of a cancellation notice to you then they can not claim they sent you one. S.A.R - (Subject Access Request) is for ALL documents relating to you. If there was anything that was not included because they could not retrieve it etc. they have a duty to tell you.

 

I agree with Ian that your first document can be used by a judge to enforce the agreement as it has all the terms on it (see bottom of post #8581 in red). BUT if it is a cancellable agreement which it is (their own wording says they will send you the details) then they have a duty to send them and if not the judge has to apply section 127(3) as posted by Seahorse in post #8586.

 

What you could do is write back to the data controller that sent you the docs and ask if there are any missing documents as you are missing records of cancellation notice being sent to you and can not remember receiving them. Then see what they say. Either way it sucks for them, because if they did not send it with the SAR and have it or record of it they fall foul of the Data Protection Act.

 

Once that is clear then you can proceed

 

Out of interest did they send you a copy of the agreement with the SAR or did you have to get it separately? If they did not send it you can report them to Information Commissioners Office.

 

Best Wishes

MoonHawk

 

Thanks for the info, regarding the agreement I had to CCA them for it but before i did the CCA i did a SAR also and have already reported them to the information commisioner. After reporting them i received a copy of the transaction history without reference to any letters being sent out for defaults or statements etc.

 

Ill compile my letter tonight and cc it to the information commisioner to get it moving. Ill try and get them to admit that they are satisified they have sent me everything in a letter.

 

regards,

 

craig.

[ian1969uk]

That about sums up my understanding (Hi Ian)

 

 

Hi MoonHawk, fancy seeing you here

[lookinforinfo]

Moonhawk, I am so sorry I got your name wrong.

Still not sure that you have got the gist of my argument. I have taken it from

the legal guidance issued by the ICO, and their interpretation of what constitutes fair and lawful processing. Processing under Section 6 is only

permitted providing that data is being processed fairly and lawfully-as stated in the very first lines of the First Principle.

 

THe ICO say that one of the criteria for deciding when processing is unfair is

when the processing exceeds ones legitimate expectations. And I mentioned

one example in my previous post where I believe there is a strong argument.

If the company is acting ultra vires then that is interpreted as being unlawful

by the ICO, if I remember rightly.

Also, there is a "Fair Processing" booklet that should accompany the contract.

If that was not included that can also be grounds for claiming that the

processing is unfair.

 

If you haven't got access to the guidelines, some time ago I did a boring

thread using the ICO examples in my argument. And although it wasn't meant

to be used when processing is continuing when the original agreement is

missing, I do believe the arguments I used there are valid here too.

http://www.consumeractiongroup.co.uk/forum/legalities/53526-possible-defence-against-cras.html

 

Here is one extract from the ICO guidelines

Data can be unlawfully processed by for example a] legitimate expectation not occurring as the controller has used some

information in an unexpected way by the data subject. b] processing

data on the data subject while in breach of a CCA request .

 

Data can be processed unfairly for example by a] where particular disclosures had not been envisaged. b] apparently not having received

the "fair processing information."

 

The ICO also say

Meeting a Schedule 2 and Schedule 3 condition will not, on its own, guarantee that processing is fair and lawful. The general requirement that data be processed fairly and lawfully must be satisfied in addition to meeting the conditions.

[shooter001]

Ok guys just posted this to Trading Standards who is going to liase with the OFT for advise on this.

 

Regarding our phone conversation today I have attached copies of all correspondence with Thames Credit Ltd including proof of delivery regarding the Consumer Credit Act 1974. I have also included the copy of the agreement provided Thames Credit and included a carbon copy which i found in my own records.

 

If you could Investigate the companies conduct and give me clarification on some of the points I have listed below;

 

1. Thames Credit Limited wrote a letter on the 7th August 2007 stating "They are not bound by the time frame of the 12 days plus 30 days set out under the consumer credit act 1974". If this is true wouldn't that mean the law doesn't apply to debt collection agencies and thus the Consumer Credit Act 1974 fails to serve its original purpose?

 

2. If the Consumer Credit Act 1974 does apply to Thames Credit Limited haven't they already committed a criminal offence under section 77-79 of the Act for failure to provide a copy of an agreement within the said time period.

 

3. Also If the Consumer Credit Act 1974 does apply to Thames Credit Limited the mere fact they are still trying to pursue any alleged debt with myself is a further offence?

 

4. If a Debt Collection Agency has no copy of a valid original executed agreement as the admittance of Thames Credit Limited stated in their letter dated the 7th August 2007 "Thames Credit Limited are not the original creditor. We did not provide you with the original credit facility. We purchased your outstanding debt balances, together with the right to apply interest in accordance with your original Credit Agreements. We did not purchase your actual Agreements, consequently we have no obligation to provide you with a copy of those agreements." doesn't this mean they are unable to process or enforce any alleged agreement under the Data Protection Act and they are thus unlawfully processing data about the alleged debtor, and if they have processed any data regarding the alleged debt they are committing a further offence?

 

5. Can Thames Credit pursue a debt based on a companies say so that it is real as they have admitted in their letter dated the 7th August 2007 stating "If Halifax Bank of Scotland Agreement is unable to provide a copy of the said Agreement, that does not mean we have no right to continue to request payment of the outstanding balance."

 

6. I have included a copy of the Agreement between first personal from my CCA default letter and a copy of my original carbon copy. There are some discrepancies in the documents being that my copy is not signed while there copy is. Also both copied versions are missing any reference to a current date, wouldn't this then be missing part of the prescribed terms of the agreement set out under the Consumer Credit Act 1974 required to enforce the debt?

 

7. If any of the above are true shouldn't Thames Credit Ltd credit licence be revoked or reviewed or at least monitored or would you suggest that my taking legal proceedings regarding any possible offence be advisable?

 

regards,

 

Craig.

[un1boy]

Moonhawk, I am so sorry I got your name wrong.

Still not sure that you have got the gist of my argument. I have taken it from

the legal guidance issued by the Information Commissioners Office, and their interpretation of what constitutes fair and lawful processing. Processing under Section 6 is only

permitted providing that data is being processed fairly and lawfully-as stated in the very first lines of the First Principle.

 

THe Information Commissioners Office say that one of the criteria for deciding when processing is unfair is

when the processing exceeds ones legitimate expectations. And I mentioned

one example in my previous post where I believe there is a strong argument.

If the company is acting ultra vires then that is interpreted as being unlawful

by the Information Commissioners Office, if I remember rightly.

Also, there is a "Fair Processing" booklet that should accompany the contract.

If that was not included that can also be grounds for claiming that the

processing is unfair.

 

If you haven't got access to the guidelines, some time ago I did a boring

thread using the Information Commissioners Office examples in my argument. And although it wasn't meant

to be used when processing is continuing when the original agreement is

missing, I do believe the arguments I used there are valid here too.

http://www.consumeractiongroup.co.uk/forum/legalities/53526-possible-defence-against-cras.html

 

Here is one extract from the Information Commissioners Office guidelines

Data can be unlawfully processed by for example a] legitimate expectation not occurring as the controller has used some

information in an unexpected way by the data subject. b] processing

data on the data subject while in breach of a CCA request .

 

Data can be processed unfairly for example by a] where particular disclosures had not been envisaged. b] apparently not having received

the "fair processing information."

 

The Information Commissioners Office also say

 

Meeting a Schedule 2 and Schedule 3 condition will not, on its own, guarantee that processing is fair and lawful. The general requirement that data be processed fairly and lawfully must be satisfied in addition to meeting the conditions.

 

Had to check I was on the right thead then - thought I'd gone into my t-mobile thread!!

 

Great post lookin, keep it up!!

[lookinforinfo]

I can see why T-Mobile had trouble with you!

[patrickq1]

i have just been reading through some threads then i happened to pick up an old contract 1999 and lo and behold what did i find,

the data protection act but it was in a box where you put your signature ,this is what is known as deception by stealth...to sign the contract you must first and lastly agree to their terms and RIGHT TO PROCESS DATA...forgive me this is not and neither is any other contract right to process your data .you may play the devils advocate moon my freind and i know you are quoting as corectley as you beleive and see things .but i question this statement of the right to process data for ever being on a contract as far as puting this into a contract it has no right because it has redressed the balance to your right you have none on this subject because 9 times out of 10 the statement you agree to them processing the data .because you have no choice but to agree,would not a fairer system be if this is so important a clause to your rights then it should come a week after any contract giving your informed consent to the process of data i would be willing to bet that at least 90% plus would never sign knowing now what we do the information is not being processed fairly nor honestly

[MoonHawk]

Moonhawk, I am so sorry I got your name wrong.

No need for sorrow

Still not sure that you have got the gist of my argument. I have taken it from the legal guidance issued by the Information Commissioners Office, e Information Commissioners Office say that one of the criteria for deciding when processing is unfair is when the processing exceeds ones legitimate expectations. And I mentioned one example in my previous post where I believe there is a strong argument.

If the company is acting ultra vires then that is interpreted as being unlawful by the Information Commissioners Office, if I remember rightly.

Also, there is a "Fair Processing" booklet that should accompany the contract.

If that was not included that can also be grounds for claiming that the processing is unfair.

With you on all points, although proving they did not send a booklette will just be open to argument as it can not be proved one way or the other (unless they have no such booklette).

and from the Data Protection Act 1998 Legal Guidance ...

3.1.4 Lawfulness

The Act does not provide any guidance on the meaning of “lawful”. The natural meaning of unlawful has been broadly described by the Courts as “something which is contrary to some law or enactment or is done without lawful justification or excuse”. (R v R [1991] 4All ER 481). The term applies equally to the public and private sector and to breaches of both statute and common law, whether criminal or civil. An example of information unlawfully obtained might be information, which is obtained as a result of a breach of confidence or in breach of an enforceable contractual agreement. Since 2 October 2000 it applies to a breach of the Human Rights Act 1998 by a data controller bound by that Act.

 

This means that a data controller must comply with all relevant rules of law whether derived from statute or common law, relating to the purpose and ways in which the data controller processes personal data.

 

There are certain areas of law concerning the use of information and the relations of data controllers with individuals, which have particular relevance where breaches of the first and Second Principles are being considered. These are:-

...

(b) The ultra vires rule and the rule relating to the excess of delegated powers, under which the data controller may only act within the limits of its legal powers.

 

 

Here is one extract from the Information Commissioners Office guidelines

Data can be unlawfully processed by for example a] legitimate expectation not occurring as the controller has used some

information in an unexpected way by the data subject. b] processing

data on the data subject while in breach of a CCA request .

 

Data can be processed unfairly for example by a] where particular disclosures had not been envisaged. b] apparently not having received

the "fair processing information."

 

The Information Commissioners Office also say

Meeting a Schedule 2 and Schedule 3 condition will not, on its own, guarantee that processing is fair and lawful. The general requirement that data be processed fairly and lawfully must be satisfied in addition to meeting the conditions.

Which guidelines are these from? If these wording are correct and published by the ICO then I am with you 100%. The wording does not appear in any of the guidelines I have read. The main one I know that applies is the legal guideline. To quote it in letters etc I will need to know that it is publicly available.

 

 

Excellent work Shooter keep us posted.

 

Best Wishes

MoonHawk

[MoonHawk]

i have just been reading through some threads then i happened to pick up an old contract 1999 and lo and behold what did i find, the data protection act but it was in a box where you put your signature ,this is what is known as deception by stealth...to sign the contract you must first and lastly agree to their terms and RIGHT TO PROCESS DATA...forgive me this is not and neither is any other contract right to process your data .you may play the devils advocate moon my freind and i know you are quoting as corectley as you beleive and see things .but i question this statement of the right to process data for ever being on a contract as far as puting this into a contract it has no right because it has redressed the balance to your right you have none on this subject because 9 times out of 10 the statement you agree to them processing the data .because you have no choice but to agree,would not a fairer system be if this is so important a clause to your rights then it should come a week after any contract giving your informed consent to the process of data i would be willing to bet that at least 90% plus would never sign knowing now what we do the information is not being processed fairly nor honestly

I agree with you. I do not believe believe haveing one box for signature is fair. But off the top of my head I do not know anything in law that is specifically against that (I am not an expert on the Data Protection Act yet ).

 

As for playing devils advocate, I am attempting to pointing out the way I belive the courts will see things. Admittently this is based on my limited legal knowledge, but I do check most things with a lawyer who I do know.

 

The law will not agree with you that it is by deception or stealth as you should read what you are signing and if you are not sure what it is ask a question. The law would also say you have a right on the subject... you don't have to sign it. Sorry to say, they will tell you that you could have gone somewhere else or asked another contract to be drawn up.

 

Best Wishes

MoonHawk

[patrickq1]

i think you will find we are all glad of your input and really do apreciate all that you say and it also helps us all to beware the pitfalls that can occur and i and i imagine all of us here thank you for your input which is valuable to us all ,but the data processing is i feel another contract it should be as has been pointed out in a booklet form and then it is up to you to decide to sign the data protection if you sign a contract it is signed for the sole purpose to benefit/to make use of from the rewards ofered in that contract, but the data protection is another contract on its own would insure your rights to giving informed consent to the process of data ,which i always thought was for the purpose of giving consent to share with the POLICE/INLAND REVENUE SERVICE/and a Court plus other goverment institutions ,any other passing of Data where a Default has been entered without your knowledge or without your right to challenge the lawfulness .as this goes to the heart of what we consider unlawful charges and entering defaults without your right to challenge.or when you do challenge it is too late since the default has been registered and you know yourself it is then up to you to try and get this removed which in most instances the DATA PROCESSING COMPANY will not remove it without the banks/finance co say so ,this is one of the main reasons i disagree with the Chatrer /Petition Written by cag and others at the moment ...we are not getting a fair crack of the whip concerning this contract our Data is being unfairly processed with inpunity with regards to the Law .for this reason i think it is a seperate contract.

[Seahorse]

I think you are confusing the right to process data with the right to share data.

 

The DPA allows without consent the processing of data in order to administer an account. But I would argue that, without explicit consent, they do NOT have the right to pass data to a third party unless it is neccessary. (Unfortunately, the ICO appear to be of the opinion that passing data to the CRAs IS necessary).

 

However, my problem is in accepting that, if there is no agreement, there is any consent to sell dat. Which is, in effect, what happens when an account is sold on. In my case too, there is a tick box which either does or does not allow sharing of data. It is possible that what they really meant was, permission for marketing purposes. But it doesn't say so. So I have definitely denied the sharing of my data.

 

This means, Barclaycard, that you have sold my data on to Cabot when I have specifically told you not to. Sorry, but I think I need the ICO to know about this.

[Seahorse]

And this press release from the ICO might be useful. Just published yesterday. I haven't had a read yet, but I'm just about to. . .

 

http://www.ico.gov.uk/upload/documents/pressreleases/2007/data_sharing_framework_cop_final1.pdf

[patrickq1]

i have one more thing to say for the last 10 years or so we have all learnt from our experiances that the BANKS/FINANCE CO have not been processing our Data in a fair balanced and transparent maner ,so why should we allow them the opportunity to continue to process our data as the last paragraph and as they see FIT ,this should now be a matter of a seperate contract thus it also proves that their has been a seperate booklet of such containing the terms and conditions of OUR DATA PROTECTION RIGHTS and we if we wish to abide by this seperate agreement we can sign but also gives us the right to enter into this seperate agreement that we understand our rights and that the sharing of our data will be fair and balanced and if we have objections we can agree and disagree on a point this allows you then to write your objections but you can still safely sign this because your objections are noted this makes the whole contract fair ....

[patrickq1]

good morning seahorse lol nice to see you back and on form first thing in morning

[MoonHawk]

Thanks Patrick

 

I do believe Data Processing Should be another contract or more clearly outlined and not a general permission for anything they wish.

 

The Data Protection Act allows without consent the processing of data in order to administer an account. But I would argue that, without explicit consent, they do NOT have the right to pass data to a third party unless it is neccessary. (Unfortunately, the Information Commissioners Office appear to be of the opinion that passing data to the CRAs IS necessary).

Yes. It is what the ICO deems as necessary. Their guidlines basically advocate the whole credit reference setup as long as the data is up to date.

 

However, my problem is in accepting that, if there is no agreement, there is any consent to sell dat. Which is, in effect, what happens when an account is sold on.

That is an angle that I had not thought of Seahorse. Needs further thought for me and perhaps a complaint letter or two to the ICO, especially with the companies being in default of the CCA. I have had a couple of cases where the company defaulted, then sold the account (without telling the other party about their default).

 

Best Wishes

MoonHawk

[midge61]

Hi

This is the link to the consultation process with the page for comments to be sent.

 

Our current consultations - Information Commissioner's Office - ICO

[patrickq1]

just had a breif look at the new proposed outlines..firstly i will write a leter to them and hopefully cag can produce something practical,but my first thoughts are that as i have said before in other threads that their SHOULD BE A GOVERMENT AUDIT int experium and all other data precessing companies as they have exceeded their authority on to many occasions and it is time the door was closed on this sloppy use of processing data without any true authority i e as sehaorse stated by defaults not being regulated in a lawful manner and the culprits are mostly BANKS AND FINANCE COMPANIES ,and looking at the Data Protection it is a totally seperate contract and should be deemed as such and should by using the fair practice method come a week after any exchange of contracts in order for us to assert our own will and rights to the terms of data processing ,i am glad this came out this morning isnt it weird perhaps they are looking at our threads lol,thanks everyone..we all now have a chance as a group and as individuals to put our point across and thanks to the ICO for this golden oppertunity to put things right or to wahts acceptable

patrickq1

[patrickq1]

terrible spelling sorry you all have to put up with my use of spelling incorrectly but i will improve as i get well in health very soon after my operation well hope so its been a great thread upto now

[patrickq1]

i understand what you are saying seahorse this is why and one of the reasons i point out that this data processing was not a matter "of I think you are confusing the right to process data with the right to

share data" it is a subject of the contract signed was not what you thought it to be it was what they presume is their rights to be ,to either share /process or do whatever they wish even to use a third party,this is why i ask that it should be a singular contract seperate from your contract / agreement otherwise it is mis leading...and strips you of your rights to make an informed judgement

[BLADES65]

After issuing CCa request to Wescot who were handling the account I have recived a letter stating that BOS cannot provide an application form at this present time so the account has been passed back to BOS.

Couple of things:

I didn't request an application form

Any ideas what my next step is in particular getting the CRA record cleared.

Thanks as always.