Don Leocornay Vs HSBC

[don leocornay]

And that they registered a default with the CRAs

[bb23]

i just read this whole thing - what was the outcome?

[don leocornay]

still ongoing. solicitor advised going to the ombudsman so it's with them now.

[don leocornay]

Update - no judgement yet. FOS are requesting details from HSBC.

[johnnymitch]

Don't know if you've seen this, folks - it may help.......

 

BBC NEWS | Business | Overdraft complaints frozen again

[don leocornay]

Bad news from the Ombudsman.

 

They've ruled in HSBC's favour on the following basis:

 

1/ Because of my 'prior behaviour' that my finances were in a bad state.

1/ There's no evidence about HSBC's conduct in harrassing me for the loan (funny how they don't keep notes huh?)

2/ That I 'asked' for the loan (convenient how they didn't add their threats of court action to their notes)

3/ That's it 'more likely than not' that I signed the agreement even though they are unable to provide the original signed copy (er, has anyone ever heard of microfiche?)

4/ That's 'banks do not generally agree to offer such a large amount to a customer who was clearly in some financial difficulty'

5/ That I was making payments for a while.

 

It makes my blood boil that they may be able to get away with this.

 

Does anyone have any idea what I do now?

[robcag]

Hi dl

 

Sorry to hear the Ombudsman didn't rule in your favour, but AIUI, you are not bound by the Ombudsmans decision, although HSBC would be. AFAIK you can just reject the decision and carry on regardless.

 

Cheers

Rob

[hsbcfiddled]

Bad news from the Ombudsman.

 

They've ruled in HSBC's favour on the following basis:

 

1/ Because of my 'prior behaviour' that my finances were in a bad state.

1/ There's no evidence about HSBC's conduct in harrassing me for the loan (funny how they don't keep notes huh?)

2/ That I 'asked' for the loan (convenient how they didn't add their threats of court action to their notes)

3/ That's it 'more likely than not' that I signed the agreement even though they are unable to provide the original signed copy (er, has anyone ever heard of microfiche?)

4/ That's 'banks do not generally agree to offer such a large amount to a customer who was clearly in some financial difficulty'

5/ That I was making payments for a while.

 

It makes my blood boil that they may be able to get away with this.

 

Does anyone have any idea what I do now?

 

If there are bank charges included in the loan no judgement can be made until the outcome of the OFT test case.

[car2403]

That's just rediculous. You should reject the decision and ask them to reconsider, actually applying the Law, (s.127(3) and the Wilson v FCT ruling, in particular) then ask them to explain how their decision works given all that precedance.

 

In reality, all you can do now is consider legal action yourself, as a Court just can't come to the same decision, IMHO.

[don leocornay]

If there are bank charges included in the loan no judgement can be made until the outcome of the OFT test case.

well......my overdraft had bank charges, which was consolidated in the 'managed loan'. would that count?

[don leocornay]

Does anyone know anything about the Document Storage requirements for banks?

 

In the Ombudsman's report they provide my Grad loan docs but conveniently can't find the ml doc (i wonder why?)

[hsbcfiddled]

well......my overdraft had bank charges, which was consolidated in the 'managed loan'. would that count?

 

 

Hi Don,

 

If anyone has bank charges that have been included into a loan then how can the loan continue given that no legal decision has been taken on bank charges. No judge could give a ruling.

 

 

fiddled

[hsbcfiddled]

Does anyone know anything about the Document Storage requirements for banks?

 

In the Ombudsman's report they provide my Grad loan docs but conveniently can't find the ml doc (i wonder why?)

 

 

 

After successfully getting my ML stopped last year I have been helping a friend with his Barclay loan.

We cca'd them and they sent a copy of the loan - we continued to refuse to pay the loan. We argued that the loan contained 50% of charges and subsequent interest.

I went with my friend to a nearby branch and I told the manager that without the original document Barclays could not enforce in court.

He then showed us a copy of the document that was stored on the computer.

To which I said 'well that shows up a copy of a document- but how easy it would be to enhance it to say that it was taken out by me-Mr. hsbcfiddled- and I dont even have an account with Barclays'

I reminded him that the original must be retained as absolute proof.

 

Just recently Barclays wrote to say that after 'an extensive search that we cannot find the loan agreement'

 

Funny that- seeing as its on the computer!!!!!!!!!!! and I have seen it myself

 

I think that answers your question regarding my friends documents storage.

fiddled

Edited September 7, 2008 by hsbcfiddled
added text

[car2403]

Does anyone know anything about the Document Storage requirements for banks?

 

In the Ombudsman's report they provide my Grad loan docs but conveniently can't find the ml doc (i wonder why?)

 

There's a few things you should be aware of;

 

Under the Civil Procedure Rules, in particular Practice Direction 32 it states that

 

Quote:

13.1 Photocopies instead of original documents may be exhibited provided the originals are made available for inspection by the other parties before the hearing and by the judge at the hearing.

13.2 Court documents must not be exhibited (official copies of such documents prove themselves).

13.3 Where an exhibit contains more than one document, a front page should be attached setting out a list of the documents contained in the exhibit; the list should contain the dates of the documents.

Now it may be worth mentioning that they have not allowed you access to the originals

 

Also

 

 

Quote:

According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

 

As a loan agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

 

 

Finally, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.

 

 

So the above seems to point to the fact that they would be expected to retain key documents and it would be therefore fair to say that they should produce them

 

[All of this post has been hashed together from various parts of the forum and from Paul and tomterm's posts elsewhere - credit where it's due...]

[don leocornay]

Would a 'sworn statement' help at all?

[Castlebest]

Hiya Don, It depends what the person who is making the statement is saying.

 

Sworn statements are made by people who have knowledge of the situation that is being put before the court, for instance an expert witness statement from someone who is an expert in a particular subject or a witness statement from someone who was present at the time.

 

These statements represent the opinion or belief of an individual they cannot replace original documentary evidence.

 

pete

[don leocornay]

Thanks Castle!

 

So if I were to submit a sworn statement stating that I never signed it it wouldn't help.

 

That means looking more down the lines of car's post regarding documentation and record keeping.

 

So would it be fair to say that since HSBC:

 

- Have no record of a meeting scheduled for me to sign the alleged in person (but they should do for the Grad Loan)

- Have no record of having received the alleged in the post. ("it's likely that they would" isn't good enough)

- Have no records on microfiche for the alleged, despite them having it for my grad loan which was done a year or more earlier and other docs.

-That they are required by way of the Companies Act, The Finance Act, Money Laundering regulations, to have these documents stored.

 

All shows that it's more likely than not that they never received anything

 

Also that:

 

- There's no record of any documentation being lost during an office move.

- There hasn't been a single letter sent to me informing me of this.

- They haven't requested that I sign a replacement.

- That ONLY my 'ML' doc has gone missing, even though they should be keeping all of my information together.

 

All prove that their story regarding an office move is not likely to have happened.

 

How does that sound?

[Castlebest]

Hiya Don

 

For all of the reasons you list the bank should have provided copies of all of the documents you have listed and on a level playing field the balance of evidence should be in your favor.

 

You can highlight all of these points in your particulars of claim which because you are a litigant in person is in itself is basically your witness statement and hopefully your judge will place an order on the bank to prove their case and provide the missing documents.

 

That is where you have to draft your documents to make the judge see the possibility of you being correct and ask the bank to prove their case by providing the documentary evidence, after all you are saying you never received these documents and they have not been supplied when you asked for them so as far as you can ascertain they don't exist.

 

The trick will be to get the judge to see your point of view.

 

pete

[don leocornay]

Is it worth appealing to the FOS?

 

If this did go to court, I'd worry that they'd use the FOS judgement and whether I appealed or not

[Castlebest]

That's just ridiculous. You should reject the decision and ask them to reconsider, actually applying the Law, (s.127(3) and the Wilson v FCT ruling, in particular) then ask them to explain how their decision works given all that precedence.

 

In reality, all you can do now is consider legal action yourself, as a Court just can't come to the same decision, IMHO.

 

I'm of the same opinion as Chris (car2403), your first step is to write to the FOS and ask them to explain their decision in the light of the case law precedence that exists which should have supported your argument.

 

Then if you still get no joy take it to the courts.

 

pete

[Docman]

FOS claim they do not need to follow legal precedent and there is very little you can do about. The idea was that the Ombudsman could right a wrong that a court could not do. Unfortunately, in my experience, this admirable 'power' on behalf of consumers is often mis-used by inexperienced staff. I say inexperienced because as an organisation if it offers salaries of around 20k for qualified staff who were earning 25k in the private sector five years ago, the words monkeys and peanuts come to mind.

You could ask for Ombudsman to review the original decision - in theory. In fact what happens is that the original case worker drafts a letter repeating the original decision which the Ombudsman just signs. Frankly, FOS is becoming a complete waste of time.

If HSBC are foolish enough to try to use the FOS decision, you point out the statute and case law which the court has to take into account and take precedence over any FOS utterances.

[car2403]

I'm of the same opinion as Chris (car2403), your first step is to write to the FOS and ask them to explain their decision in the light of the case law precedence that exists which should have supported your argument.

 

Then if you still get no joy take it to the courts.

 

pete

 

You should also involve your MP - quite easy thanks to this site; WriteToThem - Email or fax your Councillor, MP, MEP, MSP or Welsh, NI, London Assembly Member for free - as the FOS needs to be reigned in on this one.

 

Your MP, if they get no joy with your case, will probably then look (they are certainly able) to apply Political pressure to the FOS to "review" their decision. If they don't do that, there's always the Parliamentary Ombudsman, but only your MP can get you that far.

 

If your MP doesn't do anything for you, contact the local opposition, who will make mincemeat out of them and will thank you for the ammunition - which is usually enough grounds to get someone moving on something.

 

Court is always another option, if you have a tight deadline.

 

More than one way to skin a cat

[don leocornay]

thanks for your help guys this is all proving very useful.

 

I'll definitely be replying to the ombudsman because it's clear HSBC have been very selective in wording their response so it's up to me to set them straight.

 

I hadn't thought about complaining to my MP but the message this judgement sends is a very worrying one especially at a time like now, that anyone who has financial difficulties is open to being taken advantage of by their bank and no one will help them, that they'll believe what the bank says and that's the end of it. If they're willing to do that, fine i'll let my MP (labour) know. If he does nothing the Conservatives will lap it up.

[don leocornay]

Response to Ombudsman has been drafted and sent to my solicitor.

 

Basically HSBC have tried to paint the picture that I was reckless and asked for help. I in turn have responded to their points explaining that I was probably being a bit naive and was taking the bank at their word and that their tactics were very predatory. Also that they actually have the info available but have conveniently left parts out to strengthen their argument.

 

Will post FOS letter and my response on here in due course - although it is a bit lengthy.

 

Also, stroke of luck, I've found out my neighbour's a solicitor as well so I'm going to forward him the whole story, he'll get a barrister mate of his to review it and advise what my best course of action is. Should get a bit more joy from him than my current solicitor (who's a trainee).

[hsbcfiddled]

An ombudsman (English plural: conventionally ombudsmen) is an official, usually (but not always) appointed by the government or by parliament, who is charged with representing the interests of the public by investigating and addressing complaints reported by individual citizens.

 

Taken from Wikipedia.

 

Just thought you might need to remind him of whose interests he should be concerning himself with- Because it looks like he's forgot!

fiddled