Question on data rights and loans

[Hiddentruth]

All lawyers out there, can you help?

Where a loan might be wanted to be taken out by one party for their divorce fees and that loan is going to be secured on jointly owned assets can you help explain with respect to the other joint owner or indeed owners of those assets, how their data gets handled in such a scenario?

Can you explain the rights of these other owners to be credit checked within any application, to comment, object or anything else. Or even to know about it?

Normally any loan has a cooling off period. How would that work too in respect of the non applicant but somebody who is affected by it?

It would be good to get some views on this. I know GDPR changes make us all more aware but we had DPA 1998 for a long time...what would be the situation with 1998 as opposed to the 2018 DPA do you think?

All comments would be welcomed...

"...requires the investors providing the loan monies are updated regularly on case progression and so are processing the data of the uninformed party repeatedly across a number of companies."

This seems to be the main qustion being asked on data protection. Whom may you inform about your divorce process and how it is going under data protection law. I just don't think the data protection issue is going to be fruitful for those trying to find a way that divorce loans might be challenged. You do not need consent to pass on a lot of personal data. In fact since May companies increasingly have not used consent as their basis because consent can be withdrawn and is complex and has to be a freely given consent. There are 6 bases
ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/lawful-basis-for-processing/

The first question would be what personal data about the other spouse is the spouse with the loan passing to the divorce loan company? Eg do they give the name of their spouse. I don't know what goes on the forms. There may not be much if anything supplied about the spouse. I presume a lender most of all will need to know if there is equity in the house as without that they are unlikely to make a loan offer. They probably want to know if the other spouse has no income or capital so might well get all the equity in which case no loan might be made.

I think it would be surprising if they could find one of the 6 bases to process data since the May 2018 data protection law changes. Howeve rif they ask for more information than is necessary to decide whether to lend to someone then they could have problems.

(Someone said gentlemen above - I believe all the MN posting lawyers are female by the way.....)

What of your data have the loan company processed?

Were you the person who applied for the loan?

What were the terms and conditions of the loan?

You are conflating the sale of the property with the issue of the loan.

If you are the person who took out the loan, there is no data protection issue.

If you are the other owner of the property, as long as whatever data of yours is processed is on the public domain, there's no issue. Any other data processed beyond that as long as it is done proportionately and there is a legitimate need so to do will come under legitimate interests.

There may be an ethical issue around conflict of interest, but I can't see a complaint re data protection sticking.

I'm female by the way. I feel the need to point that out.

Thank you @ Xenia

Always a helpful approach in what is a legitimate debate. No I am not the loan holder and suggest anyone commenting on the post will be assisted in reading the first posting by me on it.

There are no grounds now to be able to do this without absolute consent and ability to withdraw consent. It is inherently necessary to look at the whole picture as these loans do not stand in isolation because their very construct seeks to interfere not only with the key issue of who has control over their property and whose property is it but seeks to assert a power and influence in court proceedings.

If the loan is called in it can throw the case entirely...it can make people homeless.

The question now is what about the 1998 DPA....

The second question is what about if the loan is not declared and what if it is declared as it should be? Cases on bailii.org show the loans correctly declared into court. Then they get openly accounted for.

Anyone on here operated any litigation loan product cases through to fruition and what did you do to get control of marketing assets for your client and assuming you did conveyancing of this jointly owned property what did you do with sale proceeds to repay the loan and how did you show it on completion statements?

Thank you

Clients of mine have had loans right through to fruition and there is no requirement to have control of the assets. In all cases the client has received the funds under the order and settled the litigation loan direct.

There is no sense in a litigant not declaring the loan. If the loan is declared the debt will be factored in to the order. An agreement between one litigant and a lender does not bind the courts hands when it comes to deciding who should have conduct of a sale.

Has this topic not long since run its course?

So @Collaborate are you saying you have operated these loans under an assignment to the loan company but have let your client pay off the loan despite the fact the proceeds of sale are designated under the loan terms to come into your client account?

Why is the assignment needed if that were the case? I believe you said in a related post sometimes the loan company requires the solicitor to make an undertaking.

Who in your experience has the contract with an estate agents?

As I have said in previous posts, in none of the cases I have dealt with does the client have to grant security to the lender. I cannot force the payment of any lump sum to me, and my firm doesn't do conveyancing. The lenders are very relaxed about it all. That's why I struggle to identify with your concerns.

Who has the contract with the estate agents? Whoever signs the contract with them. Not sure how the answer to this question is relevant to the issue at hand.

I too am baffled. The most lowly security they take is an equitable charge. It may be a legal charge. I have the brochures they produce for both solicitors and clients so security is inherently part of the product.

Are you not aware of this when you say:

, in none of the cases I have dealt with does the client have to grant security to the lender.

This thread is on data use as regards these loans but as I said before they raise numerous ethical, conflict, regulatory and procedunallocated and lawful issues.

When your client takes the loan how do you ensure any joint owners of assets on which loans are secured are told or are you dealing with their lower value loans only where large sums are not advanced and where there is no security on assets?

If you can just clarify this it will help as we seem to be talking different product constructs. You dealing with Novitas..Ratesetter...Lime...Iceberg or others?

Typo....procedural

It sounds like there must just be different products. I don't do family law and nor do I handle any money from clients so no money would ever come to me or my firm and I am not in that sense involved in whatever funding a client might choose to take out to pay my bill or to cover repayments on the company's over draft or other bills.

Are you not aware of this when you say:

in none of the cases I have dealt with does the client have to grant security to the lender.

Why do you think you know more about the products my clients have taken out than I do? Xenia has hit the nail on the head, and clearly there must be different lenders. There is nothing to stop anyone at any time taking out a loan and granting security over an interest they have in property when that interest has not been properly protected within proceedings.

Ignoring the superior snotty tone which must have been honed by years of practice...

It seems that you raise an issue of not protecting property adequately. Now then...freezing assets is highly risky and discouraged in divorce proceedings from what I have read it will only be done where absokutely warranted and for a minimum period.

So, it seems then that these loans have the effect of freezing assets to the advantage of the loan holder so that let's say there are 2 properties in the pot...if one joint owner of those 2 properties secures them both against a loan what does that really mean...is there anything to litigate on as it seems to me the entirety of the assets are stitched up with a load of self-serving (as regards the loan holder) powers attached to them.

From my peasant position of limited knowledge...if this is done at commencement of financial proceedings then what if the effect please?

If it is done part way through proceedings what are the obligations as the question still has not been answered as to notification process to the other legal owner...

What if restrictions are put on the title deeds and 2 properties in this example have their title changed from joint tenants to tenants in common and what if in such a scenario the irrevocable mandate was undeclared but already in existence?

It is all getting a bit messy isn"t it? Yet apparently the parties have not protected their assets sufficiently.

I could do with some more pearls of experienced wisdom please!

If a couple own a house one cannot sell it without the other knowing about it as they are both on the title. If one just lives in the house but doesn't own it and they are married they can register their right to stop a sale. If you think your spouse might sell a house in joint names from under your nose by forging your signature that is not that common.

People can sever the joint tenancy to hold a house as tenants in common and that is often done even in marriages (my father did and left his half of the house to the children).

I haven't time to read all the long stuff about these loans. Are they not just like the old legal aid charge - when one half of the couple gets their half of hte house proceeds or the house goes into their name then the lender gets their money from that spouse who has just got their divorce pay out?

I cannot really see why they are such a problem. I know some spouses want to know everything their spouse is doing which is one reason their spouse is divorcing them in the process. They want to know who he/she sees, where they go, sometimse they illegally bug the house. I can see that one spouse might well not like it that the other is doing something they might not approve of whether that is the clothes they are wearing new partner, sex life or taking out loans to help ensure more cash is squeezed from the other partner but I wouldn't have thought per se there were any kind of bad thing within the overall scheme of things with this kind of loan.

The 1998 DPA has been superceded by the DPA 2018 and the GDPR. What would have happened under 1998 DPA is coulda woulda shoulda unless your case was concluded prior to May 2018.

Can you clarify your situation - I am trying to help but it's unclear.

I don't see a data protection breach - consent is not the only reason to process personal data and in my opinion the controller of the data or the processor would be able to rely on legitimate interest whether under DPA 1998 or GDPR/DPA 2018.

There's a table here with a comparison of GDPR and DPA 1998: uk.practicallaw.thomsonreuters.com/w-011-6935?transitionType=Default&contextData=(sc.Default)&firstPage=true&comp=pluk&bhcp=1

And I agree with Xenia - are they not just the same as how it always was, in that the loan company get their money when the person who got the loan gets their half of the house proceeds?

You don't have to get an injunction to prevent a property being charged, and that applies to property in joint names too.

(I think they mentioend the 1998 Act because their particular spouse's loan was taken out under the Act but I might be wrong.)

Yes correct the case fell mostly to 1998 DPA relevance but it rumbles on.

@feelliketomhanks

Thank you very much for the very useful side by side comparison of old and new data regs. I note this is entitled employment so I wonder if it can be taken as a good general guide applicable to all processing of data or just from an employer perspective? I do note curiously that there is a blank gap under Accountability heading for 1998. Any idea why?

The reason for any processing is important as the processing in respect of such a litigation loan product materially affects the person whose data is being processed. It is not necessary to process the data in order to uphold legal rights or access justice because access is there by rights anyway also a litigant in person SHOULD be getting the same access to justice as a represented person as that is the duty of the court.

However it seems these loans favour the loan holder to the detriment of the non loan holder and that is because fundamentally their terms interfere in the assets to be determined and control over their determination as it allows third parties to invest in the case and to erode those assets.

So I am curious to know what my friend @Collaborate alludes to in respect of appropriately protecting property.

For the benefit of @Tom hanks

Whether the loan favours one or another is not a data protection issue.

Yes correct the case fell mostly to 1998 DPA relevance but it rumbles on.

@feelliketomhanks

Apologies have lost half the message cut and paste as account timed out and too tired to rewrite it now so more needs adding to partial message above.

Perhaps tmoro...

There are various overlapping issues. I was giving you a context as sought.

The data issue is but one element.

It is an important issue.

The appropriateness of data misuse is relevant and what I brought to the table for discussion. Anyway enough for tonight!

Wow, HiddenTruth, I'd really hate to see how rude you'd be to people you're actually paying for advice.

This thread is about DP Issues relating to the other owner of a property when one joint owner seeks a loan to fund divorce.

From what you have described I can see no cause of action relating to breach of DPA 1998 or 2018 or GDPR.

There may be ethical issues but we do not have enough evidence posted here to comment on those.

@RiotandAlarum

I have tried to raise an important issue for advice, discussion and debate on Mumsnet.

It appears that in so doing the ultimately anonymous posters on here feel the need to take swipes or belittle because I raise important issues for discussion. Not all, but some. If you re-read the threads you will observe such behaviour.

As it happens I am very courteous to those who treat me with respect but I have had a skinful of ineffective advice and inaction which has led me into the most incredible mess you can imagine.

It is no coincidence that the involvement of a series of solicitors and barristers has led me here, driven by events which were NOT declared into court. Yes I am a bit sore about it as I would like to move on. I did not make this mess.

I have learned that when people are defensive or deflective it is because they have something to hide. So, if you wish to consider me rude so be it.

The issue can be expanded to the entirety of the data rights of the person whose data is being processed either at inception of a loan facility for legal fee funding and ongoing through the proceedings. You see, if the processing ended at inception of a loan that would be a different thing. It doesn't. It continues to be passed and processed amongst numerous parties to the extent that one has absolutely no idea who has you data.

That has to be an offence when you read the legislation. If legit interest is relied upon then the data controllers (all of them in the long series of involved parties) have to be willing to justify and prove their processing is lawful throughout. If consent has not been sought or notification not been given, checked it was issued correctly then rights have been breached.

It cannot be argued one of these loans is the only way a person can access justice!

It is a tactical manoeuvre to use one of these loans.

I wonder if @Collaborate can advise how they ensure the non-loan-holding joint owner is informed when she operates these loans. There is a notice to be given to the interested parties...how does she issue that?

Also given that the irrevocable manadate is signed within 7 days of the 14 cooling off how does that work given the fact that under GDPR a person has control over their data so that if the joint owner who may or may not have been informed but which all evidence suggests SHOULD be informed even as per the product rules of Novitas say, they can prevent their data being processed and rightly so given that their private affairs are being bet on and strategically directed by a load of investors...

Lots of food for thought and the regulators will need to decide this and the harm to the public being done by what has been going on and persists.

As a reminder of my original thread post, largely these queries have generated only partial answers: yes, I am questioning legals on it because you are likely to be (of course I do not know who you really are or what you really do) custodians of legislation and regulatory compliance....

''Where a loan might be wanted to be taken out by one party for their divorce fees and that loan is going to be secured on jointly owned assets can you help explain with respect to the other joint owner or indeed owners of those assets, how their data gets handled in such a scenario?

Can you explain the rights of these other owners to be credit checked within any application, to comment, object or anything else. Or even to know about it?

Normally any loan has a cooling off period. How would that work too in respect of the non applicant but somebody who is affected by it?''