HSBC Passed overdraft to DCA

[alf2000]

I have had a student overdraft with HSBC for 8 years and have never been able to clear it. I have wrote to them a number of times over recent years explaining my circumstances and explaining that I am having trouble clearing it as I can only afford a repayment level that clears the interest that they have been putting on it.

 

Every year they write to me to demand the full overdraft to be repaid in full within 7 days. I always write back and explain that I can not do this and tell them that I can put £x per month into the account.

 

In August I was away from my home for 3 weeks and they wrote to me in that period to demand it all back within 7 days, obviously I missed that deadline as I did not know about their letter.

 

However as soon as I got back I called them, but they would not speak to me on the phone as I do not have telephone banking.

 

I then called into the local branch and explained my circumstances, they understood and tried to sort it out but said that they could not do anything now as it showed that I had not responded to the final demand so my account was in default. so I would have to call them and have telephone banking agree a managed loan.

 

I tried to call again and asked them to put a note on the system, and I wanted a copy of the call recording sending to me under the Data protection act - a manger finally agreed to this. They also said they would send out a new security pack to allow me to speak to them on the phone.

 

7 days went by and I sent a letter to HSBC to explain everything, and ask them for a couple of weeks without them posting bad feedback to credit ref etc.

 

A few days later I got a letter from a DCA saying that they had taken over the debt.

 

A few days later I got a letter from HSBC saying that they decided to pass it to a DCA on the same date that I sent them my letter so they could not respond to my request or agree a repayment plan.

 

I really don't want to deal with a DCA and have explained to the DCA that there is a dispute and that HSBC should not have sent the account over to them. (The DCA agreed to hold off for 4 weeks)

 

I then wrote to HSBC again and explained to them that I was trying to agree a repayment plan with them, but they claim I had made no contact so they sold the debt and it is too late now and they will not deal with me.

I have continued to make online payments directly to HSBC to reduce my overdraft, but the DCA have wrote to me to tell me that HSBC have passed the payments on to them.

HSBC will not entertain a repayment plan or a full and final settlement.

 

I have opened up a case with the financial ombudsman as I don't believe that HSBC should have passed the debt over based on 1 letter whilst I was away from home and on the grounds that I was frantically trying to get this resolved with them in the 10 day period between me getting the letter and them passing it over to the DCA.

 

Has anyone got any advise on what I should do now and where I stand?

Do I just have to deal with the DCA now? or can I wait for the verdict of the financial ombudsman?

[spamheed]

Dont talk to these people on the phone, except to insist all communications are in writing, refuse to answer and security questions.

 

You need to make them prove that they have a legal right to claim the debt, Did you receive a letter from HSBC telling you they were transferring the debt?

[alf2000]

they told me that they had now transfered it to the DCA in their response to my letter asking them to agree a repayment plan and explaining what has been going on.

 

They also warned that it could go to a DCA etc in the final demand

[alf2000]

What am I best doing now?

 

Trying to get it passed back to HSBC as they have an information breakdown and are too gun ho to pass this over to the DCA whilst I am trying to agree a repayment plan with HSBC?

 

Should I write another letter of compaint to HSBC (I am not satisfied with their response) ?

 

Ignore the DCA and wait to see if the ombudsman rules against HSBC?

 

Ask HSBC for a signed copy of my overdraft agreement?

 

Ask the DCA for a signed copy of my overdraft agreement?

 

Run and hide

[alf2000]

Anyone got any advise, the DCA have not contacted me since I told them that HSBC should not have sent it over. They said they wanted a copy of the letters and gave me 4 weeks to send them in.

(The letters they want were to prove that there was a dispute before they sent it over the the DCA)

 

Its been more than 5 weeks now!

 

Should I just sit back and wait and see what happens? or are they suddenly going to hit me with you missed the 7 day deadline, now its out of our hands its up to the courts??? Help? I feel like I am a sitting duck, sat here waiting for these guys to pull the trigger.

[alf2000]

They never replied to my CCA, they sent the £1 postal order back and said we do not charge.

 

A few month later they said the hold we put on your account has ended pay up now.

 

I sent them a letter back saying they were in default of the CCA.

 

Nothing for a few months ...

 

And then they sent another letter saying the hold on the A/C had ended.

 

So I sent one back saying they were in default and going against OFT regs etc.

 

They have now sent a personal one back basically saying I got the templates of the internet and the they did not have to provide a CCA in any form. They also said that because I complained to HSBC about passing the account over to Metro that it was proof that the debt exisited.

 

Any advise on what I should do now?

 

I will post a copy of the letter on here when I get chance.

[rory32]

Are there penalty charges on the account and if so do you have any idea what percentage they would be of the account?

[alf2000]

I checked about this time last year and there was not any then, I still don't think there is any charges, just interest.

 

I could do another SAR to see if any have been put on, but if so I suspect it would be less than 10% if any.

[Castlebest]

Hiya Alf if they cant provide a true copy of the credit agreement they are stuffed and as they have said they cant or wont provide this they can take this no further.

 

Just for your information Metropolitan Collections are a wholey owned subsidiary of HSBC and work for no one else.... in other words they are just HSBC's collections department who use a different letter head to fool everyone they even have the same data controller as HSBC

 

pete

[johnnymitch]

Is this one any good to you, Alf?

 

Formal Complaint

Letter before Action

 

Dear Sir/Madam,

 

With reference to my previous letters, I wish to draw you attention to your company's lack of compliance with my legal request.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with request, and as such the account entered default on **DATE**.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.

 

As you may not be aware , failure to comply with this request within 12 working days renders the alleged debt UNENFORCEABLE in law. Furthermore, if this non-compliance continues for a further month then a summary, criminal offence is committed.

 

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.

 

The lack of a compliant credit agreement is a very clear dispute and as such the following applies.

 

* may not demand any payment on the account, nor am I obliged to offer any payment to you.

* may not add further interest or any charges to the account.

* may not pass the account to a third party.

* may not register any information in respect of the account with any credit reference agency.

* may not issue a default notice related to the account.

 

Therefore this account has become unenforceable at law.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

After taking advice, I am of the opinion that your continued pursuit is in violation of the Administration of Justice Act 1970 section 40, Protection from harassment Act 1997 section 3 as well as breaching a number of the OFT Collection Guidelines.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you would prefer to do this than merely respond with standard letters and leaflets.

 

I would appreciate your due diligence in this matter.

 

I await your rapid response.

 

Yours Faithfully

 

[

[alf2000]

Thats a nice strong letter Johnny.

 

The only problem is they are saying that they are except from this due to section V current accounts/overdrafts, and therefore are saying that I got my templates from here and got it wrong as it does not apply therefore they had nothign to respond to, i.e they did not have to respond to my CCA but do say they returned my £1 as a result of this.

 

I know this is a grey area, but I would have thought that they would have had to send something out even if they do not need a signed CCA.

 

What are your thoughts on this?

[freakyleaky]

Can you post a copy of their letter on here (remove all personal details first) so we can see exactly what they are saying they are exempt from and why.

[alf2000]

Here is a copy of the letter

 

[alf2000]

What is the general opinion here? I know overdrafts are a grey area, but is it correct in what they say that they do not need to do anything?

[johnnymitch]

Sorry alf, I misread this - I was under the impression that it was a CCA you were after.............

 

However , if your current account is in dispute, they shouldn't pass it to a DCA . Are you claiming that your current account balance is incorrect because of unlawful bank charges?

[alf2000]

I don't think there are any charges, my dispute was that they transfered it to Metro whilst I was trying to agree with them how to resolve their demand.

 

I was under the impression that they still had to respond to a CCA even if it was just to send a letter with the T&C's blance etc but it did not need to be signed?

[chris1977]

Hi Alf, just found your thread and thought I'd add my two pennies worth. What Metropolitan have said is partially correct in that overdrafts are exempt from Part V of the act (Form and Content of Agreements, duty to supply copies etc) by virtue of the OFT Section 74 Determination. However, in order to benefit from this exemption, the banks have to have complied with the requirements of the OFT determination, of which the following is an extract:

 

2. This Determination is made subject to the following conditions:-

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

(b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:

- of the credit limit, if any,

- of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended,

of the procedure for terminating the agreement;

and this information shall be confirmed in writing.

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

 

It might be worth going through all correspondence etc (or S.A.R - (Subject Access Request) them to make sure you have everything) to see if they have complied with the above requirements. If not, then the overdraft agreement will be subject to the requirements of the CCA and specifically Part V.

 

I'm going through a similar situation as you appear to be, my thread is here if you want to take a look, there's also some very good advice on there from fellow CAGers which could be relevant to your situation also.

 

Good luck mate

 

Chris

[alf2000]

Thats great Chris, just been looking over your thread.

 

I will fire off a S.A.R, I take it I need to add to the SAR template that I am requesting copies of all letters that they hold on file rather than bank statements etc?

[alf2000]

Do you guys think this is okay to use as the S.A.R - (Subject Access Request) for the purpose of establishing if they have complied with OFT section 74 Determination?

 

[your address]

 

 

 

[their address]

 

 

[DATE]

 

 

 

 

Data Protection Act 1998

Subject Access Request

 

 

 

 

 

Dear Sir/Madam

 

 

ACCOUNT NUMBER: xxxxxxxxx

 

Please supply me with a complete copy of all correspondence, notices, notes, transcripts, or any other documentation relating to my banking history with your organisation.

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

 

Yours faithfully,

 

 

[signature]

 

 

[name]

[johnnymitch]

That's right alf2000, you want all correspondence that has passed between you to determine whether they have complied with the conditions outlined above by Chris. It may be ,for example that they have failed to notify you of Interest charges and rates applicable........?

 

Sorry alf - you beat me by a whisker...... LOL! That SAR looks OK to me - short sharp and to the point - don't forget to send it 'Recorded Delivery'

[chris1977]

Hi Alf, that looks the job. It may also be worth specifically requesting copies of any agreements that exist between you and the bank.

 

Cheers

 

Chris

[alf2000]

I should send this to HSBC data protection officer not Metro right?

[chris1977]

That's right Alf

[alf2000]

Do you think I should also send a letter to HSBC pushing my complaint to the FOS? or is it true what Metro say in their letter that this acknowledges the agrement?

 

The advantage to doing so will be that Metro can not chase while I am waiting for my SAR etc

[alf2000]

Changed it to add the agreements bit

 

Please supply me with a complete copy of all correspondence, notices, notes, transcripts, specifically any contracts or agreements that you claim to exist between us, and any other documentation relating to my banking history with your organisation.