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...

I thought there had been quite a few good answers to the specific data protection quyestions and the conclusions of the lawyers without however having seen the documents signed (which anyone would need to see in order to advise ) was probably there were no data law breaches.

There may be other ways you might challenge a litigation loan but I do not think a complaint to the ICO or suing the lender or your spouse for damages for releasing your personal data in breach of DPA 1998 or GDPR/DPA2018 is not likely to be fruitful.

To go back to the consent requirement in the Novitas privacy policy.

1. It’s covered under the disclosure in divorce regs that Collaborate mentioned.

1. The privacy policy states “the necessary consent”. Novitas are able to process most if not all of the personal data under the contract basis and under the legitimate interest basis. And possibly under legal obligation. They don’t need to have consent. So whether the solicitor knows or doesn’t know re consent is irrelevant.

In order to advise fully it would be necessary to have sight of the original documents relating to the specific case.

The questions have been answered many times by many people greenberet. Just not any answers to back up crazy conspiracy theories.

Your description of me as abusive is extraordinary. I’m sorry but that obviously makes me sceptical of your claims re your marriage. As I understand it from other threads you didn’t work for many years (you claim you couldn’t because of above tax evasion) and were outraged that you had to cover your sons school fees from general maintenance as your ex said he couldn’t afford anything else. That wouldn’t constitute abuse for me. He may or may not be lying but it’s hardly abuse.

Domestic abuse is a very serious topic. It’s not something to be taken lightly.

I wasn’t clear enough.

The privacy policy doesn’t say consent. It says “the necessary consent”.

That means that unless Novitas are using consent as their basis for processing the data relating to the other party, there is no requirement on the solicitor or, indeed, the party to the loan, to get it.

Basically. Novitas don’t need consent to process the personal data of the other owner of the property and no solicitor is complicit in fraud when filling out forms or sending data, on the evidence that has been presented here.

But (boring even myself now) we don’t have enough evidence here to comment fully and advise properly because we haven’t seen t(e documents relating to the case.

Anyone wanting to challenge this type of loan would need to go and take advise in real life from a specialist.

It is unlikely on the face of what has been posted here that a data protection challenge would be successful

There may be other issues around these loans but DP isn’t one, from what I can see here.

Hi all

Just a fair warning, if we continue having to delete posts then we will remove the thread - can we try and continue the discussion without using personal attacks?

@LilyMumsnet

Thank you for this much needed intervention. This valid question in law and of the public interest because it deals with how our finances are being handled within the court system and by the legal people Joe Public are recommended to go to for help -got off on a hostile foot from the off.

The original post had the tone I aspired to.

Conspiracy theories is not the cut and thrust of the questions in debate. It has been necessary to point out how this scenario operates and how it can be used and abused to cause actual disadvantage and harm when none was due because ultimately as the SRA have said in their recent news release the role of a solicitor (and others) is not only first and foremost to their client. They owe a duty to the court and to their own independence and ethics in the context of their registration. They do not have to do what their client may want if it compromises them in ways which need careful balancing.

Is it considered a 'win' to get one over on the other spouse by manipulating assets by use of a revealed or hidden litigation loan? Is it the ACE up the sleeve of the solicitor and how does that solicitor fulfil their disclosure obligations under the family procedure rules. ..afraid I did not comprehend previous posts on this matter as the explanation did not appear clear..

There are numerous issues raised by these loan structures as they are not just an innocent little stand alone product...they have tendrils spanning far and wide...a catch-all net that actually stitches a case up where all assets are secured by them from the off.

So litigating in such circumstances is financial abuse. It has to be. That is an offence.

The issue on data protection is an interesting one. Novitas are currently relying on consent. They have their own obligations under data regs. Again the issue of a product that operates within a chain of command, each with their own obligations is an interesting one.

Getting back to litigation, the SRA have reminded that it is a reserved activity. It has rules. So it is wrong to litigate outside of due process in order to gain advantage over a party in divorce..,at THEIR expense.

It just isn't cricket ladies and gents. We are supposed to be a civilised country.

Again thank you Mumsnet.,,hopefully the lawyers on here will clear up the disclosure issue on keeping such a loan from the spouse so that we can understand that fully.

Novitas are not relying on consent.

They don’t need consent.

Oh and just to say if the true dynamics are not declared the ignorant party is declined an opportunity to advance relevant or appropriate legal argument so are declined fair hearing. Which is a right. In my particular case a legal bill of significantly over 30k was run up dealing with the nonsense in court which made no sense as the rulebook had been torn up and thrown away, implicating numerous others in the deception.

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)

That is a moot point isn't it? They cannot have anything to legitimately administer if they do not have a properly and legally correct and formulated contract?

A building built on sand falls down in the end.

So are the solicitors and their client in breach of contract with Novitas?

They don’t need consent. They can use legitimate interest or possibly legal obligation.

If consent is not necessary, they do not have to obtain it.

Consent is only one basis on which information can be processed, and should always be the basis of last resort.

The loan company have one if not two other basis for consent they can and are able to use. They do not need consent.

There may be other issues with these loans, but if you try to take action based on this point, in my opinion, given what information we have been supplied with here, you will not succeed.

That clause does not require them to obtain consent. It allocates responsibility for obtaining consent, if it is needed, to the borrower. That is not the same as saying they need consent.

I see no breach of contract.

If there was information being supplied for which consent was the basis, then the action would be against the person taking out the loan, as they are the ones who had undertaken to ensure consent was gained.

But as I said. Novitas do not need consent. Much of the info will be in the public domain, and that which is not they can use legitimate interest as their basis for processing.

The solicitor would not, as far as I can see, be in breach of contract because they have not provided the assurance re obtaining consent (if consent was necessary - I do not believe it is).

X post with Mrs wobble.

Additionally, it would not be a commercially viable product if it required consent from the other party to the litigation as I imagine it's pretty unlikely to be granted. So the loan will be designed to be lawfully operated without requiring consent. That clause will be included as standard practice and for the avoidance of doubt, not because there is an expectation of needing to obtain consent.

I agree, the data protection issue is barking up the wrong tree. However none of us mind talking about these loans.

i still don't get the basic point some non lawyers are making that taking out a loan to fund your divorce which will ay the legal fees month by month and then be collected in from what the spouse taking out the loan receives from the ultimate settlement is such a bad idea. I agree it could make things unfair if the other spouse doesn't have a similar representation as they cannot afford it but could they not also take out a loan - in other words there needs be no inequality in it surely?

Interesting points, I am listening but curious to know with Mrs wobble who declared on another post to be the wife of a lawyer and not a lawyer so can you maybe confirm the basis upon which your opinions are made if not your own?

I have read data protection regs inside out and see nowhere that consent should be the basis of last resort! It seems to be the basis of expectation.

Even if this murky issue as to how lawfully getting a loan facility up and running by everyone dodging their responsibilities the set up must surely be declared into court!? Particularly because the loan should only come off the settlement of the person taking the loan as confirmed by debt agencies where joint ownership exists.

The irony in my case was false accusation that the FMH had not been on the market when even if that had been true there was no obligation for it to be so the court was led to believe I was vexatious and then spent more than a year getting control of the sale of property which I had already signed selling contracts on!!!! Just to get control because of the loan and the fact my assets have been mismarketed and big chunks are unaccounted for is not merely coincidence.It was a dishonest and purposeful modus operandi.

@Xenia

Would love to hear about cases where lit loans are on both sides!!! Either eroding the entire assets from both sides or cancelling themselves out.

Fight fire with fire? Ex cent you need to know there is a fire. Hmmmm back to the disclosure issue.

It would be great if lawyers on here could read the contracts and terms of these loans. I suspect your toes may curl.

I think you decided I was the wife of a lawyer. I have never said that.

Typo... I mean

Except you need to know there is a fire.

Consent is the area of DP that has received the most publicity but it is not the basis of expectation amongst DP professionals. It is the most challenging basis to use, and if it is possible to use another basis then that should be used instead.

ico guidance here you will see that the ICO say “ you often won’t need consent. If consent is difficult, look for a different lawful basis.“

Yes, one of the myths of data protecton law is that consent is always the best ground to use. If often isn't because it can be withdrawn later and is in a sense less reliable. There is a quite a good summary of using consent or not here www.slaughterandmay.com/media/2535723/processing-of-personal-data-consent-and-legitimate-interests-under-the-gdpr.pdf.

I don't think it is murky. It is like the 1984 and 1998 data protectoin acts were - sadly a fairly vague area of law as unlike most areas it has broad "principles" .

On the separate point do you have to disclose how you fund your divorce, eg that your mother is paying your legal fees or you have taken out a big credit card debt or you have an equityable (not legal) charge over the main asset which if and presumably only if you win any money the lender can go after. So eg if Mrs X gets zero on the divorce after a court hearing then the fact there is an equitable charge over the marital home makes no difference at all to the husband as the lender presumably doesn't get a penny. If instead it is likely Mrs X might get between 30 and 70% of the equity in the home then the lender can get their loan back presumably out of her share. I don't really see why it is an issue for the other husband other than that as with using solicitors that side's costs are then higher than they would have been. Peopole could do what I did - I paid my own and my husband's solicitors costs month by month every time they fell due. Quite a lot of couples do that - the better off side pays both side's costs.

I have read data protection regs inside out and see nowhere that consent should be the basis of last resort

The regulations don't say that, of course. As far as the regulations are concerned all the legal grounds for processing data are equal. But anyone working in data protection will tell you that consent should only be used if no other grounds are available. Consent gives the data subject the most rights, including the right to withdraw consent. It also involves the data controller in most record keeping. You are far likelier to get tripped up and do something wrong if you are using consent than if you are using one of the other grounds.

And I really don't understand why you think a litigation loan should be declared in court. How you fund your case is irrelevant. Unless costs are awarded each party funds their own costs so there is no need to do anything to ensure that the appropriate party pays.

This thread is becoming more and more absurd and has lost its flow with the deletion of posts.

@Hiddentruth i hope youve printed it off incase it gets deleted.

After my post last night i actually went back and read the opening post because I wanted to see the tone - whether it was goady at all and nope it was perfectly reasonable so how and why it descended into the mess it I said i dont now.

A lack of ability to communicate effectively.

I do not think the issues have been addressed

Feelslike you said this

*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*

So what you are saying is that because the ops DH has all the personal information already through paperwork submitted as part of the divorce process that it is ok to use this information to apply for the lit loan and use the information to complete personal info on the op. HE doesn’t need her consent specifically to put her infomation on the form.

Is this understanding correct?

I’m not nit sure what the difference is between “necessary consent” and “consent” can you explain please

CAN YOU also explain what you mean about not needing consent under the legal obligation