Written by John Kruse, one of the leading experts on Bailiff Law, this consumer friendly guide is essential reading for anyone who comes into contact with a bailiff.
The book is easy to understand and clearly explains the rights
a bailiff has, and also what they cannot do when collecting debts and repossessing goods etc.
I'm getting into a protracted battle with HSBC over my credit card and CCA, I'll cut a long story short but I demanded a copy of my CCA (they entered criminal default 2 weeks ago), sent Curlyben's template advising them I do not have any debt and that they remove all references on my credit file. In response they sent me a copy of the alleged agreement terms. I've just had their response to this, I don't have a scanner but the pertinent paragraphs are, I think, repeated here:
While I note your requests for the documentation outlined in your letter, I can confirm that the bank, in our correspondance of the [redacted] have already provided you with all necessary documentation in respect of this matter.
In addition to your own, we have received a number of such requests from customers requesting the information detailed in your correspondance. The letter you have sent us is a template letter available on a website. Unfortunately, it appears this website is misinforming customers of the documentation we are obliged to provide.
You did not sign a contract when you opened the account you signed a CCA agreement form, we have already provided you with a copy of the agreement terms you would have signed. We have also provided you with verification and the accounting of the debt by statement/invoice to verify the balance owed.
The paragraph of your letter relating to data consent constitutes a request under section 10 Data Protection Act.
We regret we are unable to comply with your request under section 10 of the DPA 1998 as the information retained by HSBC bank plc constitutes a true and accurate record of the manner in which your account was conducted. The processing of these details is in compliance with the DPA.
You have referred to HSBC bank passing information relation to your charges to third partie. Please be assured that we abide by a strict code of confidentiality and treat all customer's personal information as private and confidential. The bank complies with the DPA and Banking Code when obtaining and processing customer data.
Information will only be passed to other third parties and group companies in strictly controlled circumstances, as detailed in our terms and conditions and application forms, requiring your consent. Please note that customers consent to the fact that if we make demand for repayment following any default and they fail to repay the sum within 28 days, then we may register the details with a CRA. This is indicated in our terms and conditions. We also advise that such a default may affect their ability to obtain further credit.
I can only reiterate again that we have already provided you with all relevent information and we are under no obligation to provide addition documentation. In view of this I return your two postal orders totalling £2.
While you are not maintaining payments to the account we will continue to notify the CRAs of this fact, as we are obliged to do. The bank does not consider this to be a valid dispute and our normal collections actions will continue.
I can only suggest that you contact us to arrange a mutually acceptable repayment arrangment to avoid further collections on the account. The next action will be to issue your account with a default notice.
I sincerely hope matters have now been brought to a satisfactory conclusion.......
Is it possible for you to upload them via a digital camera as you don't have a scanner? It's easier to reply to such things if we can actually see what they have sent you.
Ha Ha ...since when were banks OBLIGED to inform the CRAs of anything ? More like they,themselves decide when they feel like.
Quite a few interesting points here...but more info is needed to look into taking this further.
If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.Before you decide,consider the users here who have already offered help and support.Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon. Advice offered by Martin3030 is not supported by any legal training or qualification.Members are advised to use the services of fully insured legal professionals when needed. Donations help CAG to help YOU Click here
and my proposed response if anyone is still reading this, with thanks to pt2537:
Dear xxx,
Thank you for your letter of the 1st of May 2008, unfortunately you are woefully ill-informed and I recommend that you take legal advice as the earliest opportunity.
While the terms and conditions you have sent me are very nice you have not produced any evidence that I have agreed to them in addition the prescribed terms as required by section 60(1) Consumer Credit Act 1974 are not present. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553.
Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) Consumer Credit Act 1974, which states:
127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).
This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.
Further more, since the prescribed terms referred to above do not appear within the agreement supplied, the agreement is rendered totally unenforceable, as the prescribed terms must be contained within the agreement and not a separate document, case law confirms this opinion
I refer you to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299
”[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated
consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:
"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which
are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the
minimum terms) are to be found in Schedule 1."
Therefore the prescribed terms cannot be contained within a separate document outside of the agreement.
In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection. The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, Examples of unfair practices are as follows:
Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment
As it stands, the document supplied is not a valid credit agreement nor is it enforceable by any court.
What I Require
That you immediately remove all references to this debt from my credit file with all reference agencies. You have erroneously stated in your previous letter that you are required to notify CRAs of payments. This is completely wrong and you are in fact PROHIBITED from sharing my information without my consent which we have established you do not have.
That you immediately refund the interest that has been charged on this account over the previous six years with interest compounded at the rate of 8% per annum. This must be in the form of a cheque made payable to myself - it is not acceptable to pay this in any other way. I have calculated this amount to be £------
Should you believe that you have grounds to enforce this agreement, please provide me with a signed copy of the credit agreement that you will be relying upon in court. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40.
I respectfully request a response to this letter in 14 days.
No response as yet by HSBC but I did receive a credit card statement and they continue to add interest and ask for a payment. Two things come to mind:
1. Can this be considered a demand for payment?
2. Is it worth exercising my right to demand that documents are not automatically produced from my data?
I write with reference to your letter of the xxx and your preceeding correspondence.
Whilst I note your latest comments and your repeated requests for the documentation requested, I can only reiterate the content of our previous letters and that the Bank has already provided you with all appropriate documentation.
The Bank has made its position clear in respect our of obligations to provide you with a copy of the original signed application and that we are not obliged to provide you with any further documentation.
In addition to the above, there is more than sufficient evidence of your entry into an Agreement with the bank and the variations to the terms and conditions of that Agremeent over the years. Your continued use of the card is evidence of your acceptance of those terms and conditions. Obviously any court would also take into consideration that you have maintained regular payments since it was opened in xxx to xxx and by doing the above you have clearly accepted the terms of the Account.
If you had any concerns over the Agreement I believe it reasonable to expect that you would have brought it to our attention sooner.
The historic terms we have already provided, together with the Notice of Variation and the up to date terms is the required information we are obliged to provide you.
Whilst I am sorry that you do not agree with the Bank's stance, I can confirm that the banks position will not change in respect of this matter. Clearly, in view of my comments, little can be gained from entering into further correspondence with us.
The bank does not consider this to be a valid dispute and we will continue our normal recovery actions in respect of the outstanding balance.
A balance of xxx remains outstanding on the account, details of your failure to make payments will be reported to the CRA as we are obliged to do so.
If you are experiencing financial difficulties...........
This is a little snippet (courtesy of Car 2403 & Paul? ) which may assist your argument.................
[Re: My mum v HSBC[/font]This is from a post by Paul;
i also found this little gem in Sir Andrew Morrits Judgment in the Court of Appeal in the Wilson & FCT case, i note that the House of Lords have not disturbed this part of his judgment since the HoL only looked at the issue of S127 being compatible with the Human Rights Act
Quote
“In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift,of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;”
Nemo me impune lacessit
Advice & opinions given by johnnymitch are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.
If you think I've helped you please feel free to tickle my star
I just had an interesting thought, as these sums can be considered gifts tax would have been due, from the gifter and I think a threat of informing the inland revenue of this missing tax revenue would be interesting no?
In any case I think my next course of action is to write to the information commisioner, TSA, FSA annd send a letter of intended prosecution - drafts of which will be put up here when I write them.
It's very annoying, and seems to be their tactic, to deny the account is in dispute!
Right they've actually gone and defaulted me now, so I want to take them straight to court, could anyone have a look at these POCs please:
Particulars of Claim
1. The Claimant had an HSBC LOAN: xxxxxxxxx and HSBC CREDIT CARD ACCOUNT: xxxxxxxxxxxx ("the Accounts") with the Defendant. The credit card account was opened on or around xx/xx/xxxx, and the loan was opened on or around xx/xx/xxxx
2. On the xx/xx/xx the claimant made a Consumer Credit Act 1974 (“the CCA”)request for the accounts under the Consumer Credit act 1974 obliging the defendant to supply a true and original copy of any credit agreements within 12 working days.
3. In response the defendant sent a copy of the statement of account of the loan account on the xx/xx/xx and a copy of agreement terms for a HSBC credit card.
5. The supplied documentation for the accounts does not meet the definition of a properly executed agreement
6. Accordingly as of the 19th of April the defendant defaulted on the CCA request and committed a criminal act and the accounts entered disputed status under the CCA making the agreements unenforceable without a court order.
7. Under s127 (3) of the CCA: “The court shall not make an enforcement order under section 65 (1) if section 61 (1) (a) (signing of agreements) was not complied with unless a document, itself containing all the prescribed terms of the agreement was signed by the debtor or hirer.
8. Accordingly the accounts are unenforceable and the defendant has no basis on which to charge interest nor process the claimants information.
9. A schedules of charges is attached to these particulars of claim.
10. Accordingly, the Claimant claims:
a) The return of the amounts debited between xx/xx/xxxxand xx/xx/xxxx in respect of interest charges in the sum of £1xxx.xx
b) The removal of the default applied to the Claimants Credit file by HSBC. Under section 14 of the Data Protection Act 1998, a Court has the authority to order the removal of inaccurate data. It is my belief that the defendant lacks permission to process the claimant’s data or share it with third parties, including Credit Reference Agences.
Further, under section 13 of the Data Protection Act, it is possible to claim for compensation for failure to comply with the requirements of section 14. Whilst not part of my existing claim, I shall retain the right of further action under this clause in the future, should I see fit.
c) All applicable Court fees
e) I under section 69 County Courts Act (1984) at the rate of 8% a year, from the date of each transaction to xx/xx/xx of £xxx.xx, as detailed in the Schedule attached hereto, and also interest at the same rate, from this date, up to the date of judgment or earlier, payment at a daily rate of £x.xx
Looks ok to me gdnaes, sets it out in plain enough detail......
Just one tiny point... should that last para say 'interest under section 69 ' ....etc,etc...?
Nemo me impune lacessit
Advice & opinions given by johnnymitch are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.
If you think I've helped you please feel free to tickle my star
If you mean DG - who are HSBC's pet solicitors - yes....
I don't think you've said who it was that sent you the docs you posted earlier........
Nemo me impune lacessit
Advice & opinions given by johnnymitch are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.
If you think I've helped you please feel free to tickle my star
Gdnaes VS HSBC Credit Card (No CCA)
over my credit card and CCA, I'll cut a long story short but I demanded a copy of my CCA (they entered criminal default 2 weeks ago), sent Curlyben's template advising them I do not have any debt and that they remove all references on my credit file. In response they sent me a copy of the alleged agreement terms. I've just had their response to this, I don't have a scanner but the pertinent paragraphs are, I think, repeated here:
Reply With Quote
.
