FDM and Aperture

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nickjohn

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Post by nickjohn » Wed Jan 13, 2021 10:29 am
Hi all, its been a long time since ive posted anything but have a quick query I hope you can help me with.

The question is, do Aperture require our written consent to chase PPI on a completed IVA.

Some background to our position:

We completed our IVA in 2016 and due to the Green v Wright issue didn't get our completion certificate until 2017.
As far as we were concerned that was it, we got on with our lives.

Roll on to 2019 and we get a letter out of the blue from FDM saying theyve been appointed as claims management company for Aperture and could we submit to them all the details of the accounts involved in the IVA and a written authority for them to chase PPI.
I called FDM to check if we were legally obliged to sign the documentation given our IVA had concluded and we were told NO there was no legal obligation to sign, so we didnt and forgot about things.

Roll on to the end of 2020 and we get a cheque from Aperture for the stat interest part of a PPI claim (less fees).

Aperture have told us they authorised FDM to act on their behalf to chase PPI and due to the Green v Wright ruling they did not need our authority to do this (if this was the case why did they write to us in 2019 and why were we told we had to give our authority).
There is a lot of analysis on the net covering the Green v Wright ruling and the information we have been given is that the ruling covers a specific form of IVA agreement, namely an all asset IVA under the R3 standard terms.
Our own IVA was asset defined (did not include PPI) and under the 2008 IVA standard protocol, and that Aperture did require our authority to instruct a third party to chase our PPI and they also needed our authority to transfer our financial data to them.

I know some will say your IVA is over and the stat interest cheque is a bonus so stop moaning, but thats not the point, the point is if Aperture are able to give out our financial info to whomever they wish whats the point of the data protection act and how long can they keep doing this for. When we received our completion certificate we had expected that to be the end of the matter, we had no interest in chasing PPI or bank charges or any other refund we just wanted to get on with things but this just drags us, and the memories of times we would rather forget, right back into it all again.

So if anyone knows if Aperture, or anyone else, would require our written consent to chase PPI on a completed IVA it would be appreciated.

Cheers

Foggy

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Post by Foggy » Wed Jan 13, 2021 11:16 am
Did you ever sign one of their infamous 'Spotty letters' ? You could have given authority in one of those, or, indeed, in your original terms of engagement. In the first instance I would write to the Aperture Trusts Department asking them to clarify from where they got such authority -- and take it from there. Maybe speaking to the ICO would provide some clues as to what can be done.
My opinions are merely that .. opinions based on experience. Always seek professional advice.
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nickjohn

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Post by nickjohn » Wed Jan 13, 2021 12:20 pm
Wed Jan 13, 2021 11:16 amFoggy wrote:
Did you ever sign one of their infamous 'Spotty letters' ? You could have given authority in one of those, or, indeed, in your original terms of engagement. In the first instance I would write to the Aperture Trusts Department asking them to clarify from where they got such authority -- and take it from there. Maybe speaking to the ICO would provide some clues as to what can be done.
Hi Foggy,

No we never signed any of the letters they sent to us by either the many claims management companies they had chase us, or the MVM "spotty" letters. We even had a letter with a full amendment / authorisation sent to us just as we finished our IVA on the basis that if we signed we could have our completion cert immediately but if we didnt we would have to wait until 2017 to get it, we never signed and had to wait some 8 months to get the cert.

I've been in touch with the Trusts dept but they are painfully slow to reply, they probably have low staffing levels nowadays.

If they always had the authority to just act without our authority why did they not do this in 2019, or earlier,

I posted on the forum as I was assuming im not the only one in this situation since Aperture are only handling closed IVA's now so must be doing it to quite a few of us.

Foggy

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Post by Foggy » Wed Jan 13, 2021 3:17 pm
" ..........I posted on the forum as I was assuming im not the only one in this situation since Aperture are only handling closed IVA's now so must be doing it to quite a few of us."

Hopefully some of the others will respond and compare notes.
My opinions are merely that .. opinions based on experience. Always seek professional advice.
IVA Completed 23rd July 2013 .... C.C. 10th January 2014
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nickjohn

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Post by nickjohn » Mon Jan 18, 2021 5:41 pm
After getting some feedback from Aperture their stance is that due to the Green v Wright ruling they can instruct a claims management company to make any claims they feel fit without any instruction from ourselves and the claims management company can take their instructions to act on our behalf.
Ultimately this means that at any time in the future if another PPI fiasco raises its head then Aperture can instruct whomever they wish to chase claims on your behalf without ever telling you they're doing it and stick any funds received into your IVA (less there fees of course).
Something that all those in an IVA now, or who have completed IVA's, I finished mine nearly 5 years ago, should be aware of.

Foggy

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Post by Foggy » Mon Jan 18, 2021 5:51 pm
Mon Jan 18, 2021 5:41 pmnickjohn wrote:
After getting some feedback from Aperture their stance is that due to the Green v Wright ruling they can instruct a claims management company to make any claims they feel fit without any instruction from ourselves and the claims management company can take their instructions to act on our behalf.
Ultimately this means that at any time in the future if another PPI fiasco raises its head then Aperture can instruct whomever they wish to chase claims on your behalf without ever telling you they're doing it and stick any funds received into your IVA (less there fees of course).
Something that all those in an IVA now, or who have completed IVA's, I finished mine nearly 5 years ago, should be aware of.
I think that they (Aperture) are overstepping their powers. In GvW it was confirmed that PPI refunds and the like belonged to the creditors -- fair enough. It did not state that your details could be shared with all and sundry, nor that the world at large was free to make claims, in your name, without your authority, or, indeed, knowledge. Additionally, although we say the spirit of the judgement is applied to other agreements, the word of the judgement applies to R3 arrangements, not Protocol.

I fear it would take more court cases to untangle, but I would still love to see what the ICO made of it as a potential breach of data protection regulations.
My opinions are merely that .. opinions based on experience. Always seek professional advice.
IVA Completed 23rd July 2013 .... C.C. 10th January 2014
http://foggy.blogs.iva.co.uk

nickjohn

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Post by nickjohn » Mon Jan 18, 2021 6:28 pm
Mon Jan 18, 2021 5:51 pmFoggy wrote:
Mon Jan 18, 2021 5:41 pmnickjohn wrote:
After getting some feedback from Aperture their stance is that due to the Green v Wright ruling they can instruct a claims management company to make any claims they feel fit without any instruction from ourselves and the claims management company can take their instructions to act on our behalf.
Ultimately this means that at any time in the future if another PPI fiasco raises its head then Aperture can instruct whomever they wish to chase claims on your behalf without ever telling you they're doing it and stick any funds received into your IVA (less there fees of course).
Something that all those in an IVA now, or who have completed IVA's, I finished mine nearly 5 years ago, should be aware of.
I think that they (Aperture) are overstepping their powers. In GvW it was confirmed that PPI refunds and the like belonged to the creditors -- fair enough. It did not state that your details could be shared with all and sundry, nor that the world at large was free to make claims, in your name, without your authority, or, indeed, knowledge. Additionally, although we say the spirit of the judgement is applied to other agreements, the word of the judgement applies to R3 arrangements, not Protocol.

I fear it would take more court cases to untangle, but I would still love to see what the ICO made of it as a potential breach of data protection regulations.


I agree I think they are manipulating the GvW ruling a bit too far.
To be fair I dont think the insolvency practitioner running things knows anything about individual cases and is just applying a blanket opinion.
My own IVA was "asset defined" and 2008 protocol standard Terms and conditions but this seems not to mater in their eyes.
Its not that PPI money has been paid into the IVA thats the issue, I made claims and stuck them in whilst in the IVA, its that its all being done without any authority or discussion with us and the fact they can keep on doing this well into the future (I believe an IVA expires 6 years after the IP has last acted for you so its another 6 years added on to my case).
The claims management company are solicitors and regulated by the SRA which has clear guidelines on how solicitors should run cases and this wasnt done as per their guidelines.
I've requested a copy of the letter of authority sent to the bank handling the PPI claim and will be interested to see what it says.
Ultimately I have the ICO to fall back on and wont think twice about doing it.

luluj

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Post by luluj » Tue Jan 19, 2021 2:07 am
Interesting to see if others have had the same happen...
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nickjohn

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Post by nickjohn » Tue Jan 19, 2021 8:09 am
Tue Jan 19, 2021 2:07 amluluj wrote:
Interesting to see if others have had the same happen...
I’ve had some time on my hands recently, as have a lot of us, and from searching the forum and the internet it looks like Aperture have been doing this since getting together with FDM in late 2018.
FDM were only formed in October 2018 and looks like they were only formed to chase the final PPI cases.

lifenoteasy

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Post by lifenoteasy » Tue Jan 19, 2021 4:26 pm
Aperture can instruct a company so long as they believe that they have a clear, unambiguous legal basis to do so.

However, where they do so, they have a legal responsibility to ensure transparency, and that they have notified data subjects what they are doing (this is not the same as seeking consent).

Make a complaint specifically for the attention of their Data Protection Officer, asking them to confirm legal basis and when they notified you of the actions they were taking.

If no response, or not happy with the response, then progress to the ICO.

Not sure how they can justify in terms of Insolvency legislation as it never anticipated this kind of scenario, and in terms of GDPR, they seem to have ignored some of the fundamentals.
IVA started March 2011, Completed March 2016 and certificate issued 11 days after final payment. It was not always easy but then some of the best decisions aren't.

nickjohn

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Post by nickjohn » Wed Jan 27, 2021 11:15 am
After getting further with the bank who made the PPI payment it appears that the IP has instructed FDM to chase the claim under the Green v Wright ruling on the basis that the money is an asset of the IVA and their powers allow them to authorise anyone to act on their behalf to chase assets.

We made our last IVA payment in 2016, it’s scary to think the IP can just do this sort of thing at any time without telling us.

It also brings into question why did they spend so long trying to get us to sign away our asset defined IVA rights if they could do this anyway.
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