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...

The area I know about is the data protection element. As far as I can see, any data processed relating to the person who has not taken out the loan would be covered under legitimate interest, as long as the other principles of data processing are adhered to.

As far as the detail of what data would be processed and in what way, in order to determine that it would be necessary to see the original documentation at the time the loan was taken out, and any further communication between the parties. So, I am unable to comment on that on the basis of the information provided here.

You seem to be under the illusion that consent is always required in order to process personal data relating to a data subject (ie you in this case). It is not.

The cooling off period for the loan is irrelevant to the other owner of the house in the scenario, because they are not bound by the terms of the loan - the loan is paid off by the person who has taken it out, when the house is sold, or the transfer completes. Because the other person is not a party to the loan, then they aren't entitled to a cooling off period. The other person has no obligation to pay off the loan so it's nothing to do with them.

The cooling off period would only relate to the person taking out the loan.

And for the record. I've tried to help you. I haven't been rude, I've provided advice and asked questions to clarify. You have been rude in your tone to me. Why?

OP - given that only 15 hours ago you accused me of having a superior snotty tone which must have been honed by years of practice., I'm astounded that you think I have such a low opinion of myself that I would come on here to help you.

Thank you for your view on this...

Novitas have so far claimed consent is their basis but this does not equate with what has been happening. They do not address their onward use of data either.

ICO says:
ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/lawful-basis-for-processing/

What do we need to tell people?

You need to include information about your lawful basis (or bases, if more than one applies) in your privacy notice. Under the transparency provisions of the GDPR, the information you need to give people includes:

your intended purposes for processing the personal data; and
the lawful basis for the processing.

This applies whether you collect the personal data directly from the individual or you collect their data from another source.

Nobody, particularly someone in a vulnerable position (remember anyone can be vulnerable at any point in their lives) in their right mind would want their assets encumbered by equitable charges, liens or whatever they may be, or held to terms in these loans nor have their data processed by a series of undisclosed companies and investors.

Anyone operating these loan structures I feel would be wise to consider what I am saying here because there is a big problem...if a person has the right over their data and how it is used, the accuracy of it etc etc then any loan has to operate in consideration of that and with consent.

If the temptation is to hide the truth because it is all a bit 'iffy' on data protection laws (never a good idea as the truth will eventually out) all operatives within this suspect multi-party arrangement are in breach of their numerous obligations and should be hot footing it now on the Red Alert or ethical advice line to the SRA at the least.

Novitas will of course be claiming consent when it relates to the party who took out the loan.

In order to comment further I would need sight of the original documents and any correspondence.

if a person has the right over their data and how it is used, the accuracy of it etc etc then any loan has to operate in consideration of that and with consent. that statement makes no sense and the last two words are legally incorrect, as I have already explained to you.

It is not "iffy" with regards to data protection laws from what you have described here. In order to comment any further, it would be necessary to have sight of all the documentation relating to the case.

You are being very unreasonable expecting to get detailed legal advice on a complicated matter for free when posting outline details on a parenting forum. You need to seek professional advice and you can expect to have to pay for it.

I do not think I have been rude to @feelliketomhanks as if you red my messages I make a point to thank you

As for @Collaborate you post sarcastic cartoons and make snide comments, I am not sure why only you can know that

I am not on here to defer to your superiority or to make friends I am on here to raise debate on a legal point which is important

It might even be that I am doing you a personal massive favour and aleting you to something you may not have considered

It is quite alarming to me, a person who has never used chatlines or any such things to find that there is a tendency toward aggression on these forums particularly it seems on the legal threads

It helps nobody. It is unnecessary. I will defend myself against aggression and disrespect. @Collaborate I owe you no apology because for some reason deep in your psyche you have felt the need to belittle me. That is fine...it is your choice. I observe it and call a spade a spade.

If anyone wants to continue this important debate on legislation and the law then I am happy to do so with courtesy and mutual respect. I have enough problems already without problems on Mumsnet fgs!

@feelsliketomhanks

The Novitas privacy policy states consent is required of 'representatives' which the other joint owner of assets which secure the loan or other interested parties in it is/are

So they are not saying consent is with regards to only the loan applicant.

I am off here for today as feel demoralised by this attempt for discussion. I am not after free legal advice I am raising debate and seeking views and sharing information.

This is not a chatline.

I have gone out of my way to help you and shared a link that I felt would be useful and instead of reading it and taking on board what it said you picked holes because it related to employment. I chose it because it was written in an easy to understand style and because it set out, in tabular form, the differences between the various legal instruments.

You are rude. You want free help from here and you are snippy, and your posts are confusing to read. You are also not giving enough information, because this is a public forum, so you are never going to get personalised detailed advice - because in order to give accurate advice, it would be necessary to see the original documentation and all communication relating to the matter.

You should take legal advice from a qualified person, and you can expect to have to pay for that.

The Novitas privacy policy states consent is required of 'representatives' which the other joint owner of assets which secure the loan or other interested parties in it is/are in order to comment on this it would be necessary to see the privacy policy in full.

www.novitasloans.co.uk/novitas/privacy.html

We collect and use your personal data and where applicable this may include information related to your spouse/partner, directors, partners and owners (your “representatives”). Close Brothers is responsible for ensuring that it uses your personal data in compliance with data protection law.

That is fine - they are entitled to do this under legitimate interest.

You must ensure that in respect of any information you provide us with, which does not relate to you (for example, information about your representatives), you have obtained the necessary consent in order to disclose such information and provided the individual to whom the information relates with a copy of this notice (including any child/ren 13 years old or over).

So, it's up to the person taking out the loan, not Novitas to get consent. So in your case, the other party to the divorce is obliged to get consent, not Novitas. So it's your former spouse that has breached, not Novitas, and them you should go after.

The rest of it, on a quick read, all looks to be legitimate interest/in the course of a contract.

My first comment - should read legitimate interest/in the course of a contract or negotiations towards same.

@feelliketomhanks Under para 31.22 of the CPR "A party to whom a document has been disclosed may generally only use that document for the purpose of the proceedings in which it was disclosed."

Applying for a loan to fund those proceedings is compliant with this rule, and so the litigant applying for the loan need not seek the consent of the other when sharing disclosed documents. This rule is their authority.

@Collaborate that relates to documents. Those documents might not contain personal data? The para from the privacy policy I highlighted relates to personal data specifically?

Either way, the op isn’t going to get advice here because we are not being given all the information that is needed (which I understand- it’s a public forum).

@hiddenhome you need to go and get independent advice in real life and you will have to pay for that. No one here can help you as much as you seem to demand.

I said:

@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?

You have now said:

I have gone out of my way to help you and shared a link that I felt would be useful and instead of reading it and taking on board what it said you picked holes because it related to employment. I chose it because it was written in an easy to understand style and because it set out, in tabular form, the differences between the various legal instruments.

You are rude. You want free help from here and you are snippy, and your posts are confusing to read......

Now I say:

Have I ever insulted you....no.

Novitas cannot deflect their responsibilities for processing and handling data onto a spouse as they continue to process and handle and pass it, using it for reasons beyond which they initially took it.

I welcomed and read carefully the useful link nd I shall continue to reference it.

It is Christmas and I sign off now and wish you all good cheer.

@feelliketomhanks Those documents might not contain personal data? The para from the privacy policy I highlighted relates to personal data specifically?

All disclosure within divorce proceedings is by document - either financial statements, responses to questionnaires, letter, or copies of documents being set. On an application for a loan the lender will not typically want to see any of these documents but will want an overview of the type and value of the assets involved. A solicitor will get knowledge of this from documents disclosed, so use of this information for the purpose of the proceedings is permitted under the rules.

Yes, I agree. I just don't see a data protection law issue with this at all.
That does not mean there may not be other problems with this kind of loan and I am sure if people are dividing a sparse divorce pot the classic problem that one side would rather lawyers had the money than their spouse and they refuse to offer or settle anything and you end up with very little left to split is a horrible situation for someone to be in. As is the situation where one spouse knowing a divorce is on the cards gambles away all the money before the divorce starts.

Divorce certainly brings out the worst in people.

Taking out a divorce loan to cover your legal fees so you have legal help is not on my list of the worst things a spouse could do to protect their position.

Everyone however should look at what amount of money is in the pot at the start and try to negotiate quickly and without going to court and secondly always look at worst case scenarios on costs and always try to keep it proportionate.

I think we have dealt with the data protection and the cooling off points.
The final was
"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?"

I don't know enough about credit checking to know who can check someone else's credit rating. I did check my own credit score with equifax or someone similar and it showed who else had checked me out which seemed to be about 5 companies just mortgage, clothing catalogue, my mobile provider - the ones you would expect. If someone thinks their own credit score is incorrect they certainly have a general right to object and probably to get it corrected or if the company disagrees with the correction a note is kept of both view points on the record.

On the last bit which I suspect is a big part of this poster's concern, is that it may be for some of these loans the spouse is not told their spouse has taken one out just as they may not know their wife's mother has borrowed £50k from their father to fund their divorce fees. Certainly debts like that can make it harder to settle financial disputes of all kinds. I remember in one of the only 2 conditional fee cases I ever did it was harder to settle the dispute at mediation because my client had an insurance policy which had a premium that had to be paid as well when we won so that extra money to be found and compromised over by both sides. however without these products some people could not pursue their rights at all so we have decided in the last 20 years to change the law to allow these kinds of things for better or worse.

@Collaborate thanks for that - I am a dp specialist, and am looking at the information purely from that pov. I can see nothing that would enable to OP to take action - certainly not from the privacy policy on the website nor from what has been posted here. Novitas have the right to process the data under contract/legitimate interest and they have said clearly in the privacy policy that the onus to seek consent lies with the person taking out the loan.

Also some of the disclosure requirements may come under legal obligation (due to the loan being for the purpose of legal action) but as we have not been provided with the data that has been disclosed, it would not be possible to comment on that.

My final comment on whether litigation loans for divorce are good or evil is this: They help clients fund legal action where, without one, they would not assert their legal rights. One of my recent clients to get a loan recently banked over £300k, which will meet her housing needs and her children’s, and she was content to repay a loan of less than £25k. They are a force for good.

Yes and @Collaborate how did the other party fare? Did they know about the loan? How was the loan revealed into court and to the other side? How did the Judge factor it in?

Was it secured on property as you have previously said these loans are not secured this way. Did that property have to be sold and who got to manage that process?

How was the equitable charge or equitable lien released? Was there a sale for value without notice or was any party left with a property in this deal which had been encumbered by the security taken on it and how have you ensured that is released for good?

Lots of questions here - perhaps to ponder for the new year methinks!

Lots of questions here - perhaps to ponder for the new year methinks!

Can’t be bothered to answer this one.

There won't be any answers on the information that we have been provided with here. We don't have enough information

I thought we had established that most of these loans were an equitable not a legal charge?

The issue of equality of arms in divorce has never been easy and whatever is ever done divorce will be awfully unfair on someone or other, often the children most of all. When one had legal aid and the other didn't but even so did not have spare money for solicitors it was unfair. Presumably eithe ror both sides could seek a divorce loan if they thought it would help them obtain what they need. I wonder what happens if both husband and wife have them - I suppose at least then there is more equality.

Some posters seem particularly adept at making other people not like them. Sadly that is not a very useful life skill. There are ways to encourage a good debate where everyone feels a happy participant. I suspect people can get so hurt in divorce it makes them very sad and angry. Thank God my clients are all companies and it is never very personal. I and others in the case had a court decision yesterday about disclosure of documents in litigation. It is objectively quite an interesting issue.