Debt Collection Agencies & Consumer Credict Act 1974

[lookinforinfo]

Would receiving an executed copy from the original lender as a result of

sending them an sar, as well as confirmation of them confirming the

assignment of the debt, satisfy the question of the validity of the debt in

the hands of a dca?

[tbern123]

I have only quickly scanned through this thread but I have already been in contact with both the OFT and The DTI over the matter of whether or not SI 1983/1557 sec.3 applies to sec. 77/78 requests and their written reply states that sec. 3(2)(b) applies to both sec 77/78 requests and sec. 85

 

The official word from both departments is that signature boxes can be ommitted when responding to these sections.

 

As an agreement without these boxes doesnt prove it's been legitimately signed I personally think this anomally needs changing and as as result I have forwarded a lot of information to my MP who was so alarmed that he immediately tabled a written question to the secretary of state.

 

I am sure you will appreciate that these things take time (governments are not renowed for speed) but once I get an acceptable answer I'll be posting in the group.

 

Zoot is perfectly correct in what she has posted, according to the OFT and the DTI.

 

I don't know....

 

I set up a perfectly good thread, with lost of posts and views then somone has to come along and provide the answer and spoil all my fun......

 

Just kidding, thanks for the info.....

[tamadus]

I don't know....

 

I set up a perfectly good thread, with lost of posts and views then somone has to come along and provide the answer and spoil all my fun......

 

Just kidding, thanks for the info.....

 

sowwy tbern but its an item that's being discussed in a number of threads at the moment, so a couple of us are ahead of you

 

Besides I thought zoot needed a bit of support

[martinpar]

Would receiving an executed copy from the original lender as a result of

sending them an S.A.R - (Subject Access Request), as well as confirmation of them confirming the

assignment of the debt, satisfy the question of the validity of the debt in

the hands of a dca?

 

Belt and braces, I'd say.

[lookinforinfo]

B]77

My ending argument is that, if a debt sold to a DCA is no longer covered by the CCA, how can a DCA place a DEFAULT on a credit file ? How can you default on a non-existing or terminated agreement ?

 

How do other people interpret the legal position of DCA's and how do you support your argument ?

 

Either the agreement is still in place (requiring them to provide documentation), allowing them to place a default on a credit file or they have illegally put a default on a credit file.

 

Tbern, these were the questions you originally posted 500 years ago on this

thread.

 

Since then, a number of points have been cleared up but inevitably they lead to more questions. We now know that the original agreement passes on to the dca with some provisos- which I will come to.

 

Thanks to Surlybonds on the "Default Hell" thread, as the original creditor

has passed on the contract, the CRA must remove any default

registered by them on one's credit report, as they no longer have

permission to do so.

And this is confirmed, or partly confirmed at least, from the legal guidelines

on the Data Protection Act -

"For example, if the processing is intended to continue after the end of a trading relationship then the consent should cover those circumstances. However, it must be recognised that even when consent has been given it will not necessarily endure forever. While in most cases consent will endure for as long as the processing to which it relates continues, data controllers should recognise that, depending upon the nature of the consent given and the circumstances of the processing, the individual may be able to withdraw consent."

 

However, the ability of DCAs to register a default once they have acquired

an debtis still not as clear cut. For instance I have read on

this forum that even when a debt is bought by a DCA, they do not inherit

the right of permission to inform 3rd partys'. I have seen nothing in any act

that confirms this, but would like to stand corrected if any one can point out

the relevant statement.

 

Be that as it may, the Data protection Act would appear to validate the DCA

actions. This is what the legal gude lines have to say about consent-

 

 

 

One of the conditions for processing is that the data subject has given his consent to the processing.

"The Commissioner’s view is that consent is not particularly easy to achieve and that data controllers should consider other conditions in Schedule 2 (and Schedule 3 if processing sensitive personal data) before looking at consent,. No condition carries greater weight than any other. All the conditions provide an equally valid basis for processing. Merely because consent is the first condition to appear in both Schedules 2 and 3,does not mean that data controllers should consider consent first."

 

So consent is not necessary to process data providing another condition applies. And the next condition might fulfil the right of DCAs to process data.-

 

"The processing is necessary –

(a) for the performance of a contract to which the data subject is a party"

 

Now we cannot argue that the debtor is not the data subject of a contract

between themself and the DCA, so the keyword in that clause is- is the

processing of a default necessary? The DCA would argue that it was in order to lay a marker as it were as to the payment history of the debtor. The debtor would argue that it was not necessary as the default has no legal

standing and is no more than a spiteful action designed to harm the debtor.

 

 

This is the Commissioners view on the meaning of "necessary"-

 

The Commissioner takes the view that data controllers will need to consider objectively whether:

the purposes for which the data are being processed are valid,

such purposes can only be achieved by the processing of personal data and,

the processing is proportionate to the aim pursued.

 

No doubt Tbern et al can argue on those points til the cows come home.

 

The third principle of the Data Protection Act states that-"Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed”.

Is there a case for arguing that listing a default is excessive in view of the fact that the bank/credit card company/whoever will have already marked

the debtors file with the amount of time the payments have failed or been

paid late?

 

I will finish there before I bore everyone to death. Obviously, one could follow

Surlybonds advice and use section 12 of the Data Protection Act to remove the default

in one way, but does not answer Tberns question. Though it may be that the Consumer Credit Act may come to our assistance if I can

ascertain in

what circumstances a data subject can object to a particular processing of data and insist on its removal.

The other way may be to object to the assignment of the debt, once again

under tha CCA on the grounds of either 7 days notification was not given

prior to the assignment. Or that the transfer produced such a detriment in

the guarantees within the contract brought about by the change of

ownership that the assignment must be struck out.

[tbern123]

added in error