Thread: Default Removal - katenandpete v HSBC **WON**

OK, long story short...

Got my credit reference files a while back. There was a surprise, HSBC had defaulted my credit card account for £96 on 12/08/04. There was still £600 owed on the card which i was paying at an agreed rate of £50 per month. I certainly never received a default notice.
On 26/06/06 I sent HSBC a CCA request for the credit agreement and default notice. No response. I stopped paying the account on 03/08/06. On 09/08/06 i sent them an lba stating they had not complied with the CCA, that I no longer recognised the debt and that I required them to remove the default notices from the credit reference files. I gave them 7 days to do this. Their time is up tomorrow.
This morning I received a usual statement from them with a £12 late payment admin charge applied to the account.

I would like some advice on 2 points:

1. My wife thinks I should contact them and request they remove the charge as they are in default of their obligations under the CCA. I think I should just ignore today's statement and proceed with my threat to seek a Court order to remove the default (assuming I receive no correspondence from them tomorrow).

2. What's the next step? I know this is answered somewhere else on the forum, but i can't find the exact procedure (even though i've studied sarrahk and surlybonds threads). I need to pop down to the county court. Which claim form do I need and what sort of things should i put on the particulars of claim? I guess this is a breach of the Data Protection Act as they haven't substantiated the data they are processing.

Help greatly appreciated - even if you just point me to a relevent thread.

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Do you still owe them money? I think it would be difficult (if not impossible) to remove if you still did :?

Hi again, thanks for the replies.

Yes, I still owe them £600 of which only £30 or so is unlawful charges.

Of course, i've got no problem with paying what i owe them and was doing this at £50 per month.
However the default was a surprise as i didn't receive a notice.
I read http://www.consumeractiongroup.co.uk...ot-supply.html, http://www.consumeractiongroup.co.uk...r-default.html and http://www.consumeractiongroup.co.uk...ca-1974-a.html and sent off a CCA request for the original agreement, default notice and any deed of assignment. I got back diddley-squat.
According to alanfromderby, the debt is now unenforcable as they have not provided proper documentation. In effect, the debt does not exist and I can claim under the DPA for incorrect data (the default) to be removed. As i understand it, i am legally entitled to stop paying the debt at this point.

I'd really appreciate some clarification on the situation. I don't want to be looked on as a non-payer, like I say i've got no problem with paying what I owe. However I do want HSBC to comply with the law.

I'm just reading
http://www.consumeractiongroup.co.uk...-supply-7.html

carefully again. Is it really true that I can also now claim back all the money i've paid them? If so, I should probably have put that in my lba. Maybe I should send them another?
Come to think of it, i've got no idea how much i've paid them. Perhaps I should DPA-SAR them first and get all my statements.

Thoughts anyone?

If you sent a request for your original credit agreement etc and they did not respond in 12 days they are in default.
If they did not respond aftre 30 days they have committed a criminal offence and the debt in in my view unenforceable.
If the debt is unenforceable you should be sending them a s10 /s12 statutory notice to desist from processing data and to have default removed.
But if youve read sarahk thread you know that already!!

A s10/s12 statutory notice. Great, thanks. There's so much information on this site i get confused. What do you think about DPA-SAR-ing them and claiming everything i've paid back. When I read about that i thought it was very cheeky, but after all they are a large financial organisation that should know the CCA inside out (and not commit offences under it!).....

The DPA-SAR will get you all the information you need for the account. I do however think that the objective is to get the default removed.
Surly bonds has placed a template letter in the templates section for exactly this.

if they havent sent you the documents you have asked for , assuming these to be the credit agreement and the default notice then they have committed a criminal offence and the debt is unenforceable.

Whats the court date for? Is it to have the default removed?

I suspect they will settle before the court date and remove the default.

As it is considered a criminal offence for them not to supply the information under the consumer credit act i cant really see them trying to defend it, can you?

I would write to them now stating that they have committed a criminal offence etc and demand they remove the default immediately.

Check with the CCA 1974 and quote it.

Good luck

Originally Posted by martin2006

The Data Protection Act-S.A.R - (Subject access request) will get you all the information you need for the account. I do however think that the objective is to get the default removed.
Surly bonds has placed a template letter in the templates section for exactly this.

Yes, you're right. One step at a time.

Hmm, in sarahhk's thread, she's using s.10 / s.12 to remove a default on a settled account that has been closed. My account was still 'live' (and as far as HSBC are concerned still is as they haven't acknowledged that I no longer recognise it as they have committed an offence under CCA s.78(1)). Am I squeaky clean and in the same situation as sarrahk, all because they haven't sent my credit agreement?

Originally Posted by ecobabe

When debt becomes unenforceable (one month after the company default- so according to the Act that is one month after the 12 working days)there is no agreement, i believe that they would need to go to court now if they produce the agreement. The signed agreement has the part about agreeing to your details being passed onto credit reference agencies......so if there is no agreement, then they cannot and should not have passed on your details and are in violation of the Data Protection Act. NO agreement= no debt=no right to pass on your details or issue default

OK.
So, there is no agreement.
Now I need to send them a s.10 / s.12 statutory notice. In sarrahk's thread (i should really link this ... http://www.consumeractiongroup.co.uk...ault-hell.html
there.) Surlybonds put a template covering letter up. It doesn't quite fix my circumstances, so i've altered it and would like some feedback on the wording. Here it is

FORMER ACCOUNT NUMBER: XXXX XXXX XXXX XXXX

As per my letter of 9th August (enclosed) I no longer acknowledge this debt to your company as you have not provided proper documentation. Furthermore, I believe that you have committed an offence under s.78(1) of the Consumer Credit Act 1974.

You have placed a default marker on my credit files in relation to the above former account. I am contesting this continued processing of my data is an unwarranted act and I enclose a Statutory Notice to that effect, which is deemed served as of the date noted on the Royal Mail's Recorded Delivery service audit.

As you are aware, I am afforded principled rights under Schedule 1, Part 1 ("The Principles") of the Data Protection Act 1998 in relation to the manner in which my data is collated, stored and processed. Of particular note are Principles 3, 4 and 5:

"3. personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.
4. personal data shall be accurate and, where necessary, kept up to date.
5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or purposes."

In my case, you are retaining and processing data (whether or not this is a simple renewal process of the default flag, daily or other timed factor) after the termination of the contract. As that contract is no longer in situ, then my written permission has also ceased from the date of the termination, which I will take to be the date I beleive you to have committed an offence under the CCA, the 28th of July 2006.

Principle 2 states:

"2. Personal data shall be obtained only for one or more specified and lawful purposes and shall not be further processed in any manner incompatible with that purpose or those purposes."
I emphasise the term "specified ... purposes" as in that specified within the contract, and no more. I also emphasise the term "shall not be further processed".

As you are unable to provide me with a copy of my signed credit agreement, I contest that there IS NO SUCH AGREEMENT to process my data. If you are subsequently able to provide a signed credit agreement then I contest that, as per your standard terms and conditions, there was only permission for you to process my data during the term of that contract. It would neither include any other permission, nor would it have implied that your percieved 'rights' to process my data would be in perpetuity.

Also, I do not recall any clear statement that gave my expressed permission for you to continue disclosing my subject data to third parties after the end of the contract. You should be fully aware that any non-agreed disclosure of personal data to third parties is a criminal offence under the Act. Section 35 only allows exemption to this clause if disclosure is necessary in the detection of crime and disclosure is so ordered by a Court. I do not believe that you have any such statutory obligation especially in such a case as this; alleged non-payment in a civil matter.

Should you believe me to be mistaken, and your standard contract does provide unlimited time extensions, then please provide me with the agreement indicating not only where I have signed, but also where this clause is specified. This should be sent to me as one of your enclosures, if you wish to contest the enclosed Statutory Notice.

You should be aware that you have, by statute, twenty-one days in which to either comply with my request, or give written notice stating your reasons and why you consider the notice unjustified. Any failure on your part to adhere to these timescales will automatically result in your non-complience with the statutory procedure. In that case, you will be expected to unconditionally comply with my Statutory Notice or I shall refer the matter to the Courts to ask for an Order to that effect. Should it be necessary to refer the matter to the Courts, then I shall also apply for Court fees and costs against HSBC.

I trust that I have made my position clear, and that you will make a serious effort to understand your legal obligations as a Data Controller.

I look forward to receiving your confirmation that my data file has been altered to remove all reference to my former account with HSBC, within the timescales indicated herein.

Yours faithfully,

kateandpete

I really need clarification on one point. In this, and in the Statutory Notice I say things like "I have been a customer", and "I have consented in my contract". Now there IS NO CONTRACT. Should i say "I MAY HAVE been a customer", "I MAY HAVE consented in my contract" etc. Or is it crucial that i recognise that I WAS a customer. But then again does this retrospectively recognise the agreement, thus negating their responsibility to prove that I AM a customer...???!!!?!?!?!?! ?!