Hi Guys,

Just to keep you informed on what I'm doing/how it's all coming along:

I sent the original letter to HSBC asking for a full list of charges/statemetns and I included a £10 cheque to cover the DPA costs.

They have replied and are sending me all my statements in batches through the post, of which I have now nearly got them all. They have even sent my cheque back saying they are "happy to waive any charges incurred." - talk about trying to butter me up!

I am going through the statements and entering the charges into the calculator ready to send my claim letter.

I guess now I just have to wait, huh?

Thanks

When HSBC wrote back to me they said "Manual Intervention would have happened at such times as your account being opened, or when any counter deposits/withdrawals have been made."

They haven't actually given me any information regarding the manual intervention - how important is this information and should I write back asking for it? If so, what exactly am I asking for?!

It's not that crucial.

Effectively what they're saying is that there hasn't been any (which we knew anyway).

But it does mean they can't use 'manual intervention' as justification for their charges.

Work out what they owe and send the prelim letter

Hey,

Thanks for this - I've just realised that there is already a post to this question. I'm fairly new to all this, bu tI'm getting the hang of it now.

Don't you think it'll be interesting to see how the banks' profits are effected by all these claims?

No, because they won't tell us. If they did, that would be admitting they made a profit from those charges, and as they're not allowed to, that would effectively be an admission of guilt... Can't see that happening any time soon...

.

Sorry about this, not relevant but I need to contact one of the "supervisors" of this forum - how do I do it?

I have looked everywhere, but can't find anyway of contacting them.

The problem is I started a thread called "Claim Started" but for some reason I can't get back into it - I have been trying for days and just left IE to load it, but 2 hours later still hadn't shown it.

I started a new thread but they have now added to my original thread and thus I cannot access it.

Any ideas?

Thanks,

Un1boy

Is this it?

Hiya,

I've received the credit agreement but they say that they cannot and do not need to supply the Default Notices, is this true?

I never received them originaly either.

Do they breach the CCA request by not supllying them and where do I stand now?

They have to prove it was sent, the only real way of doing this is to supply you with a copy of it or issue you with proof of posting.

They have breached the CCA by not providing it originally.

Ok. They said that they have a log on their systems that they were sent and that means that it was deemed sent to my last address.

Without the original though am I right in thining the Defaults need removing?

NTL have not replied to my request either!!

They may well have a log on their system showing the issue of a default notice, However Can they prove this with a true copy of the original.

I say this because a default notice Has to be in the prescibed format to comply with the consumer credit act and to do this they must keep a true copy on their files.

Otherwise how else can they prove that they have complied with the consumer credit act when issuing the default notice.

When you write to them again, I would suggest that you include relevant case law of

Woodchester lease V swain & co 1998.

And ask that they provide proof that the default notice was in the prescribed format as required by the consumer credit act.

Should it come to court action then I dont belive that a judge would accept just a screenshot or a log as sufficient evidence that the default notice was properly issued.

Hi simon,

Thanks for this.

Where do I find the case law you mentioned? and so you suggest just writing to them and asking them to provide the originals or remove the entries?

Even though they have said they don't have the originals.

I'll draft a letter and post it - any ideas of anything els I should include in it?

As always, GIYF. If you don't get satisfaction that way, I may be able to pull some strings, but no promises made.

Thanks Meagain - By this, I take it you mean I should dearch google for the case law taht simon talked about?

Thanks Meagain - By this, I take it you mean I should dearch google for the case law taht simon talked about?

Yes. It sounds silly, but you'd be surprised at how many law firms and schools actually have information on the cases publicly visible. Occasionally, you find transcripts of the actual judgements, but more often you find commentary on the outcomes. Anyone that doesn't have access to more sophisticated information sources (students with access to ATHENS may be able to search some commercial UK legal databases) should probably try search engines as a first port of call - after all, that's what they are designed to do.

If you don't find anything, let us know, and someone in the know will be able to find something for you.

Thanks Meagain - By this, I take it you mean I should dearch google for the case law taht simon talked about?

Sorry for not geting back sooner but been busy.

In the first instance try here. http://www.consumeractiongroup.co.uk/forum/cases-library/1015-woodchester-lease-swain-co.html

Or for more in depth try google.

Sorry for not geting back sooner but been busy.

 

In the first instance try here. http://www.consumeractiongroup.co.uk/forum/cases-library/1015-woodchester-lease-swain-co.html

 

Or for more in depth try google.

Simon, you're a star! Thank you so much. So, do you suggest that I include taht paragraph in my letter?

Simon, you're a star! Thank you so much. So, do you suggest that I include taht paragraph in my letter?

Yes I would cite it as case law in any further letters that you write to them and in any future court proceedings that you may bring against them.

ok, great!

Well, I'm going to draft a letter and post it up here for you to check, if that's ok?

Hiya,

this is the letter I have drafted;

*bumpity bumpity bump!*

Hiya,

 

this is the letter I have drafted;

 

 

I wrote to you on 10th August 2006 via recorded delivery, requesting a true copy of the signed agreement under the terms of the secs. 77(1) and 78(1) of the CCA 1974, enclosing the statutory maximum fee of £1 per account in the form of a cheque for £2, number: xxx. The cheque was cashed 31st August 2006.

 

You have failed to supply a signed true and certified copy of the original default notices and therefore the default entries are now unsubstantiated. Payments for these accounts will now be transferred to a holding account whilst I am awaiting the documents. If the documents are not received within 7 days then I expect you to remove all entries you have placed on my credit files as unsubstantiated. Any delay or failure to remove these inaccurate entries will result in further action. Once the documents have been received, the payments will be forwarded to you.

 

For your reference, please find below the relevant case law for Woodchester lease V swain & co 1998:

Removal of Default & Termination Notices

 

Accurate Default Notices are vital

Businesses engaged in lending or hiring regulated by the Consumer Credit Act 1974 should be aware of a recent Court of Appeal case highlighting the potential pitfalls of creditors failing to ensure that their documentation complies with the regulations.

In the vast majority of cases, before a lender or hirer can take action against a debtor or borrower, a default notice has to be served. The default notice has to comply with the Act and the relevant regulations (Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993). If a default notice in the proper form is not served, the action cannot proceed.

 

In this case*, the defendant hired a photocopier but failed to pay a quarterly instalment of its rent. The plaintiff served a default notice which substantially overstated the arrears which were then due. Despite this, the judge at first instance held that the default notice was valid and entered judgement for the plaintiff.

 

On appeal, Lord Justice Kennedy held that the Act was enacted to protect consumers, most of whom were likely to be individuals. When contracting with a financial organisation, a consumer was bound to be at a disadvantage. The contract was likely to be in standard form and complex. His Lordship said that if it was said that a consumer had broken the terms of the agreement, the consumer needed to know precisely what had been done wrong and what was needed to put matters right.

 

 

The lender has the ability and resources to do this and, if it does not do so accurately, it is only right that it should not take the next step. Under s88(1) of the Act there is a requirement that the lender should 'specify' not only the nature of the breach, but also what action is required to remedy it. In the context of this case, that meant specifying with reasonable accuracy what sum the hirer had to pay to remedy the breach.

 

 

The Court went on to say that an error that could be described as minimal might be overlooked, but the substantial inaccuracy in this case rendered the default notice ineffective, so the appeal should be allowed.

Tens, if not hundreds, of thousands of default notices are issued every day. This case illustrates how vitally important it is that any default notice is correct in form, as well as in substance. It is likely that the Court would take the same view with regard to the form and contents of regulated agreements.

 

*Case reference

Woodchester Lease Management Services Ltd v Swain & Co NLD

14 July 1998

 

 

HSBC has committed a criminal offence under the terms of the Consumer Credit Act, and non compliance with the original request is therefore a complete defence to any court claim that is issued. If you cannot substantiate the Default entries then you are also in breach of the Data Protection Act by holding inaccurate data about a data subject.

This will result in a report being submitted to the relevant statutory authorities.

 

Please note that as my CCA 1974 (s 77-79) request is now over the time as prescribed in law failure now constitutes a criminal offence rendering any action by you unenforceable. However I will not seek a court order in that regard at this time on the clear understanding that this matter is now closed and all Default entries will be removed from my credit files

 

I await your written confirmation of the above within 7days otherwise I will assume that this offer is not accepted and I will begin legal proceedings, without any further notice.

___

 

 

any ideas, advice etc greatly appreciated.

I sent this today recorded delivery!

Ok, I have sent the letter above and HSBC replied with a copy of the oher letter and said that was teir final decision.

If I fill in an N1 form for the default removal, because they didn't send it, can they call the full balance in?!

non compliance with the original request is therefore a complete defence to any court claim that is issued

Have you checked the original agreement to make sure it is in the correct form as stated by the CCA? If they did decide to call it in within a close enough timeframe to your claim, you could argue that their counterclaim is frivolous and vengeful. The courts don't like retaliatory legal action.

Well, the agreement that was sent included the application form.

Pg1 is the page of the Application form, stating that "This is a Credit Agreement regulated by the Consumer Credit Act 1974. sign it only if you want to be legally bound by its terms." The box is bottom right and I haven't signed it.

Pg2 is the next page. It says "Credit Agreement regulated by the consumer credit act 1974" along the top. Then it says, "I have read and agree to be bound by the terms and conditions attached." then it has "Right to cancel"

then it says "This is a Credit Agreement regulated by the Consumer Credit Act 1974. sign it only if you want to be legally bound by its terms." again and I have signed on the line.

Then it's signed by someone from the bank.

pg3 is the last page and says, "I agree that my credit card account shall be subject to any terms and conditions applicable to the crdit card."

Now, there are no terms included anyway on any of the pages they have sent to me!!

I'm guessing this is the correct format?!