Don Leocornay Vs HSBC

[rory32]

The account is in dispute so they would be breaking all sorts of guidelines by passing it to a DCA. Time for an official complaint I think.

 

When did you send the CCA request?

 

I guess they'll try and sneak a CCJ through so just make sure I defend anything they try?

Yes you need to defend anything they try. A CCJ would not be granted if you defend.

[42man]

Very interesting point about keeping copies of the agreement for 6 years AFTER the closure of the account due to money laundering laws is this a recent law Rory ? It could open a whole new can of worms !!!

[don leocornay]

Rory: My initial request for the signed agreement was in March and have been complaining and arguing for the entire period. I'll be instructing my solicitor of what to include in the letter they write. They're getting a bit wishey-washey and quite frankly I'm probably more clued up on this than they are.

 

Rory/42: Do you know any laws you can quote regarding the record keeping requirements. I'm sure that'll add weight to my argument.

 

The fact that they've put the funds into my account could mess them up based on AML regs.

[don leocornay]

The fact that they've put the funds into my account could mess them up based on AML regs.

 

Also, isn't there a regulation that states that if a bank puts money into your account you're not obliged to return it. If they use this argument "whether the agreement exists or not" surely I can say that it's down to your error and you never contacted me to say you made a mistake, which means that you're taking money out of my account without my permission. It sounds a bit far fetched but what do you think? It'd be funny getting the police involved!

[hsbcfiddled]

I didnt sign mine either- It was a joint managed loan and MOH signed but i didnt even though there were two signatures on the document and one of the signatures was my name, it was not my signature.

We pointed out that it was not my signature and that surely the signee for HSBC would/should have verified it before they passed the loan agreement.

[don leocornay]

that's my entire arguement.

 

If i'd been given the agreement at the beginning, i'd have seen the higher APR (doubled) and longer length of term (6 years) for a mere reduction of 50 quid a month.

 

I wouldn't have agreed, the loan wouldn't have been started and i'd have paid my original loan back a year ago.

 

i'm in a worse situation because i was bullied into it.

[hsbcfiddled]

surely the whole basis of your case is:

Hsbc have sent you a copy without your signature on it.

They contend that they dont need to.

They seem to imply that they do have a signed original.

 

All this contention could be brushed aside if the signed original was photo copied and sent to you....

and you would then concede ........................its so simple....

So why havent they?

 

Because they dont bloody well have it! Thats why. IMHO

[don leocornay]

exactly! after 7 months!

[don leocornay]

I've had a letter back from HSBC following on from post #8, where they sent a copy statement when they promised to send my agreement:

 

Dear Don,

Thank you for your letter dated 25 October regarding your Managed Loan. I am sorry you have had cause to contact the bank again.

Our letter dated 6 September confirmed that if we are unable to supply you with a copy of the original Loan Agreement Form, in line with the Consumer Credit Act the bank is able to provide you with a true copy of the Loan Agreement Form. I have nothing further of value to add to our previous correspondence.

The Managed Loan was drawndown on 3 September 2004 to repay an existing informal overdraft, credit card and Graduate Personal Loan. I enclose details of the transactions for the 3 September 2004 which confirms the Managed Loan was used to repay your existing facilities.

I enclose copy statements for your Managed Loan which confirms that you made thirty repayments to the Managed Loan which underlines the fact that you entered into the agreement.

Final Demand was issued on 2 October. If the repayments are not brought up to date or an acceptable repayment offer made by 16 November, the account will be passed to Metropolitan Collection Services Limited.

Whilst I hope matters are now resolved to your satisfaction, if this is not the case please let me know, as complaints we cannot resolve can be referred ultimately to the Financial Ombudsman Service. If we do not hear anything from you within eight weeks, we will consider the matter resolved.

So in summary, they're saying:

 

1/ Oh God not you again!

2/ We haven't got the original and we hope this made up copy will cover for it.

3/ Here are the transactions we performed to put this improperly executed agreement into action.

4/ Here's proof that we've taken money from you on 30 occasions, calling them 'your repayments'.

5/ We're gonna keep chasing you for this so pay up!

 

Does that sound accurate to you?

[don leocornay]

HI HSBCfiddles. I've had a letter back from HSBC following on from when they promised to send my agreement but sent a copy statement instead:

 

Dear Don,

 

Thank you for your letter dated 25 October regarding your Managed Loan. I am sorry you have had cause to contact the bank again. (fyi it was a phone call!)

 

Our letter dated 6 September confirmed that if we are unable to supply you with a copy of the original Loan Agreement Form, in line with the Consumer Credit Act the bank is able to provide you with a true copy of the Loan Agreement Form. I have nothing further of value to add to our previous correspondence.

 

The Managed Loan was drawndown on 3 September 2004 to repay an existing informal overdraft, credit card and Graduate Personal Loan. I enclose details of the transactions for the 3 September 2004 which confirms the Managed Loan was used to repay your existing facilities.

 

I enclose copy statements for your Managed Loan which confirms that you made thirty repayments to the Managed Loan which underlines the fact that you entered into the agreement.

 

Final Demand was issued on 2 October. If the repayments are not brought up to date or an acceptable repayment offer made by 16 November, the account will be passed to Metropolitan Collection Services Limited.

 

Whilst I hope matters are now resolved to your satisfaction, if this is not the case please let me know, as complaints we cannot resolve can be referred ultimately to the Financial Ombudsman Service. If we do not hear anything from you within eight weeks, we will consider the matter resolved.

 

So in summary, they're saying:

 

1/ Oh God not you again!

2/ We haven't got the original and we hope this made up copy will cover for it.

3/ Here are the transactions we performed to put this improperly executed agreement into action.

4/ Here's proof that we've taken money from you on 30 occasions, calling them 'your repayments'.

5/ We're gonna keep chasing you for this so pay up!

 

Does that sound accurate to you?

[ScarletPimpernel]

Parts of your letter are remarkably similar to one I received last week from HSBC - in particular the bits about them being unable to locate any agreement, but that they have issued a Final Demand anyway. In earlier correspondence they tried the 'sufficient proof that you entered into an agreement' twaddle, and ignore all references to unenforceability under CCA 1974; they have gone on to issue a default after ignoring a s.10 notice.

 

I find that HSBC's current strategy is to make a lot of noise about how they will pass matters to a DCA (the terminally flaccid MCS, presumably), but don't do it; how they will, the OFT case notwithstanding, sontinue to add charges and interest; and to answer letters very selectively or not at all.

 

It strikes me that they are now worried about the number of people who have legitimate claims against them, and the damage this could do both to their business and their reputation (amongst those who don't already know them). They also seem to be shocked that it seems less and less likely that the banks will be allowed to have things all their own way again. Various threads on CAG point to the way in which their in-house solicitors are trying to take a robust line with every court case, and I suspect that HSBC's current heavy-handedness is all part of an effort to regain the status quo in which they can do what they like.

[ScarletPimpernel]

...and, as if by magic, an envelope arrives with another HSBC Final Demand, this time for a credit card for which they have no agreement.

 

LBA time for the s.10 Notice, I think.

[hsbcfiddled]

Hi Don,

 

I think you have summarised the situation exactly.

 

Although I beleive I have read somewhere that they can reconstruct a document for the purpose, but as whether this is correct or not I cannot say.

However what is certain is they must be in possession of the original.

 

You could try sending this;

 

The Consumer Credit Act 1974 clearly forbids requests for payment when an account is in dispute following the non receipt of a true copy of the executed agreement under a Consumer Credit Act 1974 request for documentation.

 

Section 78(6) (a) of the CCA1974 is the precise clause contradicting your assertion that this account may be processed for demand or collection.

 

Section 78(6) states:

If the creditor under an agreement fails to comply with subsection (1)

 

(a) He is not entitled, while the default continues, to enforce the agreement and;

 

(b) If the default continues for one month he commits an offence.

 

Therefore please tell me why have you continued to attempt the collection of the managed loan payments when Section 78(6) is clear that you are not entitled to enforce this agreement whilst my request has not been complied with?

 

You have stated that you no longer have the original agreement although you are required by law to keep this agreement for the lifetime of the agreement.

Therefore anything else that you would provide to support your case would be irrelevant because you do not have the original agreement to rely upon in Court?

I await your reply on this point with keen interest.

 

Furthermore I remind you that you cannot pass this debt to anyone else for collection and if you attempt to do so I shall report you to the relevant authorities immediately.

 

Proceed as you wish and I shall respond likewise.

Yours.

 

Don.

 

 

What do you think?

Please remember that this only what I have done and all that I have learnt is what I have read on here!!!!!!!

hsbcfiddled

[don leocornay]

Thanks Scarlett,

 

My solicitor is drafting a letter to them today. I'll instruct her to keep the language as strong as possible discounting every single argument they have put forward. I'll also get her to quote the specific parts of CCA as well as Wilson Vs First County. I'm hoping that having a letter from a solicitor will make them sit up and take notice.

 

They've basically admitted in that letter that there is no agreement.

 

Does this sound like an N1 court claim?

[car2403]

They can reconstruct the agreement to comply with a s.77/s.78 request, but they must have the original document to be able to rely on CCA for enforcement.

[hsbcfiddled]

Thank you CAR that is exactly how I beleived it to be.

 

So why mess about reconstructing.....To do so gives the impression that you dont have the original.

Production of a photocopy of the original removes all doubt - then most people would concede at this point - unless of course there was an irregularity.

Their playing poker with two low pairs- when if they produced a copy of the original it would be a royal flush A,K,Q,J,10

[Docman]

Don

I've two points to add but I'll put my second point in a separate post.

First, HSBC's argument about the agreement has echoes of the stance of HSBC and RBS when CCA'd about credit card debts. They come out with drivel about the 1983 Copy Document Regulations. Basically, these allow the bank to omit certain details (such as a signature) from the copy they send you. RBS in particular then extend the argument by quoting another of the regulations which allow them to send the current terms & conditions if the original ones have been change over the life of the agreement. In effect, the bank claims by sending the current terms, they are meeting their obligations under the Act.

The section in the Act is to provide information to a debtor about his current position. IMO, the banks have misinterpreted the Regulations but they seem unable to take the easiest course when challenged - producing a photocopy of the agreement. However, when they go to Court, they WILL have to produce a copy of the SIGNED agreement. I think this will be the case with your managed loan.

[Docman]

My second point is about the Money laundering Regulations.

I think the earliest rules that applied are the 1993 Money Laundering Regulations which became effective for banks on 1 April 1994. These required the banks to have systems to keep records of all financial transactions for at least FIVE years after the last transaction. In addition, if a bank considered a debtor insolvent, then the records had to be kept for FIVE years after the start of the 'insolvency'. The Money Laundering Regulations weren’t enforced against the banks until the FSA came along in 2001 which levied heavy fines for failures. I wouldn't like to bet any money on HSBC (or any bank) having adequate records pre 2001. As was said, this might open a new can of worms. Who knows?

[ScarletPimpernel]

Don

 

I've two points to add but I'll put my second point in a separate post.

 

First, HSBC's argument about the agreement has echoes of the stance of HSBC and RBS when CCA'd about credit card debts. They come out with drivel about the 1983 Copy Document Regulations. Basically, these allow the bank to omit certain details (such as a signature) from the copy they send you. RBS in particular then extend the argument by quoting another of the regulations which allow them to send the current terms & conditions if the original ones have been change over the life of the agreement. In effect, the bank claims by sending the current terms, they are meeting their obligations under the Act.

 

The section in the Act is to provide information to a debtor about his current position. IMO, the banks have misinterpreted the Regulations but they seem unable to take the easiest course when challenged - producing a photocopy of the agreement. However, when they go to Court, they WILL have to produce a copy of the SIGNED agreement. I think this will be the case with your managed loan.

 

You are right about the need for the original signed and executed agreement in Court. However, I suspect that banks have not misinterpreted the regulations, but are deliberately being deceitful. When they are unable to produce an agreement (because it no longer exists), rather than admit this and live with the consequences of their poor business practices, they instead send letters in which they mix and match bits of legislation to meet their case and try and apply pressure to the debtor. For example, sending the latest terms and conditions and waffling about changes, when in fact they are obliged to provide the original Ts&Cs - after all, how would you (or a court) make sense of the original agreement without them?

 

I know this to be the case because they sent me a blank proforma application form, and claimed that they had complied. Two letters later they finally answered the question 'is the bank in possession of an executed agreement', (in the negative) and then changed tactics to sending final demands and default notices.

 

Similarly, their tactic of claiming that they have 'evidence that any court would take as proof of an agreement' simply shows that they are bullsh*tting like a New Labour manifesto: without the executed agreement they won't even get to court, and they know it.

[car2403]

The issue will be, hsbcfiddled, where you are sent an unsigned agreement and decide to take a Court Claim against them - their response to you under your CCA request is irrefutable evidence on their part, as they sent it to you under your request, and they are bound by it in your Claim. Then producing a signed agreement would infuriate the Court, IMO.

 

The issue over reconstruction is argued by saying it's costly to retrieve actual copies of documents from document storage. What they are ignoring is the fact they are obliged to do so and shouldn't be using document storage systems that mean they will breach their legal obligations in response times. (Of course, this happens daily for CCA and Data Protection Act S.A.R - (Subject Access Request) in particular)

[don leocornay]

So is it worth doing an LBA asking for all my money back and put it through MCOL?

[don leocornay]

So what do you reckon guys? should I send a LBA asking for a full refund before going down the MCOL route?

[car2403]

I couldn't get my claim to fit on MCOL - I had to go N1 via local Court route, because of limited characters/lines on MCOL.

 

Saying that, my POC were 11 pages in length!

 

Go for it, either way, I'd say...

[car2403]

Is this a duplicate of your other thread don? Might be worth asking a Mod to merge the two? (if it will make sense)

[don leocornay]

true car. I was advised to switch it across from the first thread as it might be in the wrong section.

 

Will check with a mod.

 

thanks!