In order to save time and avoid them sending your request back it might be an idea to ring the bank and obtain a reference/account no for the loan, that's if your nan hasn't got any record of it?

Your nan will probably have to make the call as they won't talk to third parties under the data protection act, the alternative is to be there when she calls and she can give verbal permission for them to speak to you.

By the way..respect to you for helping your nan in this way

Hope this helps

Mick

Glad to be of service I learn from you and your problems, thats how this thing works

ok thanks michael i will send them the cca request form

 

should i also send a cover letter stating why we are asking for it?

Hi Craig

No need to tell them why you need it, it's within your rights under the CCA 1974 Sec 77(1)

It seem the left hand doesn't know what the right one is doing with regards to HFC and weightmans.

Could you not contact HFC by letter requesting the outstanding balance figure? That way at least you know what you owe from the horses mouth as it were, and maybe at the same time send a token payment as Rory suggests telling them that you have very little disposable income and that is all you can afford at this time, you could also include a statement of means showing just how little income you have to play with.

At least it shows willing and if it does come to court the Judge will at least see that you are prepared to deal with the issue with the limited resources you have.

Hope this helps

Mick

Hi Citizen

You might like to read my thread as I'm in a similar situation to you except they have passed me on to Metro Services who are a subsidary of HSBC

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/127266-my-mum-hsbc.html

It also includes the statement you are looking for re. Creditors keeping proper paperwork

Hope this helps

Mick

Hi

This to me looks like an application form and says as much on pdf 4. It contains none of the presribed terms that need to be included in a valid CA under the CCA 1974.

I would think you have good grounds for it being unenforceable imo

In the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993 it states that:

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

Therefore it follows that if it doesn't include that statement it isn't doesn't comply with the law regarding default notices.

Hope this helps

Mick

Default notices are legal documents that have to contain certain criteria as laid down in the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993.

They have to contain the following:

• Name and address of creditor issuing default notice and name and address of the borrower.
  
• Type of agreement and details of the breach of the agreement.
  
• Early settlement figure (for fixed sum only).
  
• The action to be taken by you to remedy the situation and comply with the agreement.
  
• The next action that the creditor intends to takes, should you fail to comply with the agreement.

It's very important that default notices are correct legally as there is case law which states so:

Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998.

Hope this helps

Mick

It's a bluff imo..if you are paying what you can afford then they can't get blood out of a stone. I would call their bluff and tell them exactly that in as many words. I doubt very much they will take legal action and even if they did and you prove to the Judge you are doing what you can he will be on your side...not of these leeches

Regards

Mick

Hi dera

So sorry to hear your unfortunate news re. mortgages. The only thing I can suggest is that you request that a manual search be used when next being credit checked as nearly always they are automated processes which take no account of noc's.

Mick

Hi Loz

As far as I'm aware you are perfectly within your rights to complain under the DP Act I can't see anywhere in those t & c's where they seek your permission to do so

Regards

Mick

Good luck Chris and keep us informed of how your doing

 

pete

Ditto what Pete said Don't know much about POC's cos I haven't got that far yet but it cerainly looks impressive

Thanks for your input Chris and Pete. I entirely agree with Pete that there is a moral obligation to repay the principal but in the light of what Chris has posted it could be said that because of their own ineptitude in following the law as stated in the CCA 1974 they have left themselves wide open if they can't provide a legal CA with its incumbent terms and conditions.

The way I see it in simple terms is its like me giving someone some money without any lawful written down agreement of repayment which may or may not include interest.

If the person I lent it too then decides not to pay it back I have no legal standing to force him to do so, also I can't then clutch certain instruments of the law in order to force him to pay it back..in other words I don't have a leg to stand on. All I can do is ask him to pay it back..and basically accept whatever he decides to do...he could say he thought it was a gift..as Chris's post suggests.

However I'm with you Pete, this was never about dodging the debt but simply finding out who had legal ownership of the debt. And had they provided me with a CA I would then have negotiated a payment plan with them. What gets my goat is the way they have completely flouted the law, the very law that they are registered under, and then used instruments of the same law to suit them ie. the default clause. So I intend to lead them a merry dance but WITHIN the law and make them accountable for their irresponsible and unlawful actions, and if that means clawing back any interest or penalty charges back then that's what i will do. I really don't see why they should benefit from something when they are not prepared to play by the rules, or break the rules as and when it suits them.

I'll climb down of my soapbox now

I'm sitting here on a rare quiet sunday morning (kids away )which has given me the opportunity to consider my position thus far.

I haven't as yet had any response from Metro Services following their notification that the account was on hold pending further enquires and I was wondering what you would consider a reasonable time to allow them to do this?

I ask because I'm still considering the court route if I have to to, primarily, get the default removed from my mothers CR. I am still reading around this excellent site and trying to gather as much info as I can regarding court action as it would seem to me that this is the only thing that seems to motivate these blighters to do the right (lawful) thing and abide by the law as contained in the CCA.

My thoughts so far is if no valid CA is forthcoming I have a solid argument to get the debt ruled unenforceable which follows that the instrument of default cannot also be used. Simply put that if you are operating outside a lawful agreement, in that there isn't one, as laid down by the CCA 1974 you can't then use the instruments of that law ie. the default clause.

If that is the outcome of the case(and i know its a big assumption ) then the removal of the default forthwith will also form part of my argument.

Am I also right in thinking that if the outcome is as above I can then claim for any interest or penalty charges that they have applied to the account? if so how far back can I go? The way I see it if the debt is not proved and an agreement is not in place then ALL of the interest, or any penalty charges, applied to the account is unlawful... but i'm sure i'm probably wrong on this issue and would welcome any advice in this area as this is one where I'm not very clear on.

Hope you will forgive my sunday morning ramblings but I just want to be prepared for any event that might occur and welcome any help, advice, criticism(constructive )

Thanks everyone and have a good day

Hi Chris

I'm watching your thread with interest and just wanted to wish you the very best of luck. I am dealing with my mothers affairs and in a similar position to you in that these so n' so's attached a default to her CR despite never having come up with anything that even slightly resemlbes a valid CA. They have since passed the matter on to Metro Services who put the account on hold after me furnishing them with the facts but in time I also will be after them to remove the default so you can see my interest in your situation

Once again, the very best of luck and be guided by the people here, they are a cracking bunch!

Thanks all for your input. Excellent advice from all as usual particularly Andy and Johnny and I take on board you are saying and will heed it.

Will do as you suggest and leave the ball firmly in their court and will post up anything I receive (if ever)

Thanks again

Hi All

Have received a reply from my last letter as you can see in the above.

Two observations that I have are that:

1. I never asked for an application form in my CCA request but a true signed copy of the original agreement. So if they send me an application form (which I doubt considering my mother took this out 30 years ago) a letter will be winging it's way back to them reminding them of ther duties under the CCA act.

2. One that I'm not totally sure about but as far as I know it doesn't matter whether the agent acting on behalf of the creditor is in-house or out-house there still has to be a deed of assignment for the simple reason that personal info has passed between two data controllers. Will have to read up on that one under the DP act but I would welcome any points, observations, suggestions in the meantime.

Hi Andy, nice to see you again and thanks for running your eye over the latest happenings

As I have said I am in no rush to bring these people to court and I very much take on board what you have said and the reasons behind it. It's probably gonna take a few months just to read and digest the thread that pete has suggested So meanwhile we shall see what transpires from my most recent letter and perhaps take it from there. It does seem that they are chancing their arm but seem very much like a dog with no teeth for the simple reason that there appears to be no CA in existence and I see your point that given enough time, and rope, they will probably do their own hanging which would then be the prime time to go for the removal of the default.

I still have as yet to S.A.R - (Subject Access Request) them so I can be doing that and reading up whilst we wait and see. I will keep you all posted as to what happens next

Thanks again

Thanks pete... looking at it now think im goona be reading it some time too

Hi again all I have posted the above letter recorded this morning so I shall wait and see what, if any, response I get from it.

Ater giving it some serious thought over the weekend I have decided that the best form of defense is attack so I'm going to take these blighters to court. My simple defence at the moment is that they have failed to comply with my CCA request under the CCA 1974 and that anything that they have done since, including placing a default on my mothers record is unlawful if not illegal. This is in simple terms obviously as I haven't a clue as to the correct procedures that need to be done but I have bought the 'Small Claims Procedure' book as advertised here and will be reading that thoroughly and gleaning as much info from this superb site as I can, I am in no race so I want to get things right as much as I can. As I said I'm a bit apprehensive and nervous about it but have gained so much support and confidence from this site and you lovely people I'm confident I can tackle any hurdles that I might meet.

I would be ever so obliged if anyone can point me to anything that might inform and assist me in the above action or if you can suggest anything that might help me, if only your good wishes

Thanks everyone that has taken the time to contribute to my thread thus far, you have assisted in helping a wonderful dear lady who is my mother and you are truly angels

Regards

Mick

Thanks Pete and Johnny It's people like you that give me confidence that I can see this through to the bitter end Interesting fact that metro are a subsidary of HSBC... didn't realise that.

I will send the letter of recorded tuesday and see what transpires, meanwhile I wll start building my case and gathering as much info form here re. taking them to court.

Thanks again

Hi Shield I trust you and Your mother are well

 

Basically you now have them over a barrel, hence they know this and are willing to negotiate a suitable payment agreement which really is their final throw of the dice. HSCB play hard ball and will not admit defeat

Now the fun begins you can either enter into this dialogue with them which must be yours and your Mothers decision, and set an affordable payment which may take many moons to conclude.

The alternitive is to do nothing untill they try to continue to recoup said debt, and let them pass it to whoever, they will ,as they have no further recourse in their stance to the position you have have put them in.

Of course this should not be done as the account (even though they dont agree but they wouldnt) is now in dispute and we can advise action to take should they try this.

You have stated the position in your previous letter to which they really have no reply but to comply with your request until they do, there is very little open for them to attain

 

Its a case of who blinks first now .

 

 

Regards

Andy

Hi again all I haven't posted anything recently as the situation seemed to reach a stalemate except that HSBC have now lodged a default on my mothers credit record and I have busied myself registering complaints to the TS and FOS but this morning I have received a letter from Metropolitan Collection Services just as Andy predicted (must be psychic )

It's a standard letter requesting I contact them within 7 days with full payment or legal proceedings.. blah blah blah.

The reason for my post is that I have constucted a reply to this and would appreciate anyones observations, help, advice etc as to it's content?

I am now seriously thinking of taking my own action against HSBC as I feel they have been given enough rope and seem intent on hanging themselves. They have never complied with my original CCA request so anything they have done since that has only helped my case imo and I€ consider I have good evidence of that to present to a judge. I have never gone this far in any action and must admit to feeling a litte nervous and apprehensive but I feel I owe it to my mother and I know that I will have excellent support and a weaslth of knowledge from this site so thats comforting at least

Anyway..here is the letter...any comments gratefully welcomed

Metropolitan Collection Services

56 St James St

Edgebaston

Birmingham

B15 1JL

22 March 2008

Your ref: 29687464

Dear Sir/Madam

I am the son of Mrs XXXXX and acting on her behalf. I have included a copy of the Power of Attorney for your reference. Also all communications regarding this issue are being directed to my home address following harassment by HSBC bank against my elderly mother.

Might I inform you that I consider this debt to be in dispute. I have enclosed a copy of my most recent letter to HSBC and as you will see they have still yet to conform to my request under the Consumer Credit Act 1974 s78 (1) and provide me with a true copy of the signed agreement pertaining to this debt.

As they have failed to do this I DO NOT acknowledge any debt either to you or HSBC Bank. Might I also point out to you that any action to attempt to retrieve the debt whilst it is in default is considered a summary criminal offence under the CCA 1974 Sec 78 (6)

That being the case I would appreciate an explanation as to why you see fit to pursue this debt when there is obviously not in existence a true lawful agreement signed by both my mother and the creditor? because it follows that if that is the case then there has not been a legal assignment of this debt to yourselves and you are also acting unlawfully and outside the CCA 1974.

Might I also inform you that a complaint has been registered with the Financial Ombudsman Service and Trading Standards.

I also feel it fair to inform you that I am in the process of building a case to take to court myself to have HSBC explain to a judge why they think they can flout the law and to have the default removed that HSBC have unlawfully placed on my mothers credit record.

Please take note that you have 14 days in which to reply and that any attempt to contact my mother directly will be considered harassment and in violation of the Administration of Justices Act 1970 s40, the Protection from Harassment Act 1997 s3 as well as breaching OFT collection guidelines and your actions will be reported to any regulatory authority as I see fit and will be included in my action against HSBC Bank as further proof of their complete disregard to the Consumer Credit Act 1974 under which they are licensed.

I await your response.

Yours sincerely

take a closer look at the first one,they are there in the first one, the second one as i said is unenforceable,

Sorry my mistake, I actually meant the first one, still can't see any of what I mentioned

I can't see any credit limit or amount of credit in the second one. There is also no heading describing the agreement, nor any name or adress of creditor, nor any details of the consumer rights

From what I can see these are pre-contractual applications forms not credit agreements with all the prescribed terms and content