HSBC managed account - Trying to remove a invalid? default

[chris1977]

Thanks! I appreciate the advice and support. In fact, I wouldn't even have got this far without it so cheers

 

Here's what I've come up with in response. Feel free to criticise or make suggestions. I haven't mentioned the S.A.R - (Subject Access Request) yet as they still have a few days left before they are legally in default and, besides, I'm thinking that's gonna be a seperate claim and won't have any bearing on this particular claim (unless of course something comes out of the woodwork as a result!)....

 

 

Anyway, letter below:

 

Dear Sir/Madam,

I refer to your letter dated 27th March 2008, in which you claim to have fully investigated the matters I raised in my earlier correspondence.

I still do not accept this as resolution to my complaint and, in fact, find it extremely insulting that you would expect me to be satisfied with this response. Not only have you failed to substantiate your continued processing of default information relating to my account, with third party credit reference agencies, but the majority of the content of your most recent response is irrelevant to my particular complaint. This lack of attention to detail not only shows that you have not taken my complaint seriously, but is evidence of the level of contempt that you hold for your customers.

 

 

I will summarise below the particulars of my complaint, for ease of reference, along with the dates that these issues were originally raised but I strongly urge you to refer to my original correspondence prior to responding, to ensure that you address all issues satisfactorily:

 

1. You have thus far failed to supply me with a signed, executed credit agreement and true, certified copy of the original signed default notice for the above account, under s.78(1) of the Consumer Credit Act 1974, as amended. This was raised first on 15th January 2008 and, following your failure to provide said information, again on 12th February 2008. You claim that a default notice is not required but have failed to substantiate this claim. You also claim that a Final Demand was issued on 28th June 2007, however, I contest this as said letter was never received. You then provided me with a signed “copy” of said letter, dated 19th February 2008, with incorrect address information contained within. This letter was clearly created following my request and is not a copy of the original letter.

 

 

2. You have failed to address the fact that the default amount is inaccurate, by virtue of the fact that it includes previously refunded bank charges, thereby rendering the entire default invalid. I would also like to refer you to the decision made by the Court of Appeal, in that a failure of a Default Notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1999) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but gives the Defendant a counter claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119) I therefore, due to HSBC’s incompetence, hold a choice of action in Law to reclaim the value of the default amount contained within the alleged Final Demand letter and £1000 in substantial damages as a result of these decisions. This was originally raised on 11th March 2008.

 

3. You have failed to address the fact that, during the 28 day period granted by the alleged final demand letter, I was in contact with the bank, not only to advise that I was not receiving correspondence relating to my account, but also to attempt to resolve the issues which were brought to my attention on visiting the Bracknell Branch. I have copies of all emails to and from the Bracknell branch manager, showing this to be the case. This was originally raised on 11th March 2008.

 

4. You have thus far failed to provide a copy of the original signed agreement showing my consent for HSBC to share my data with third party credit reference agencies, yet you continue to process said data. You are therefore in default of my Statutory Notice under Sections 10 and 12 of the Data Protection Act 1998, served on 12th February 2008. I reiterate that I shall reserve the right to seek redress for damages as per the remit of the Data Protection Act, this including (but not being limited to) damage as a result of defamation of my character and damage as a result of having to pay higher rates of interest on loans and credit cards as a direct result of incorrectly recorded financial information due to HSBC’s negligence.

 

 

I would like to reiterate that, as you have failed to provide any substantial evidence to show that you have complied with the requirements of the Consumer Credit Act 1974 and the Data Protection Act 1998, I consider you in default of my previous requests and further consider that the outstanding debt under the alleged agreement is now unenforceable due to your default. As such, I will no longer be making payment to this account, until such time as you are able to demonstrate that you have fully complied with the relevant legislation and subsequent regulations.

 

 

Further to this, I also consider your responses to date inadequate for the reasons stated above, and in previous correspondence, and I look forward to hearing from you in confirmation that you will comply with the Data Protection Act Statutory Notice issued to you on 12th February 2008.

 

 

I expect a suitable response within 7 days of receipt of this letter. Should you fail to respond, or respond in the negative, to this letter I will have no choice but to commence legal proceedings. I would, however, be willing to reconsider my position upon satisfactory resolution of my complaint; that is the removal of any default entry relating to my account with HSBC from my credit files held by all Credit Reference Agencies including, but not limited to Experian, Equifax and Callcredit.

 

 

I trust this makes my position clear.

 

 

Yours faithfully

[car2403]

Very good Chris. I don't know how you haven't lost your temper yet. I suppose I'm just more used to dealing with this monkeys, so I don't give them a centimeter, never mind a mile.

[chris1977]

To be honest with you Chris, I have lost my temper, I even tried ringing them the other day just so I could give someone a bit of verbal, to make myself feel better. Predictably though, the number quoted in their letter was wrong! So I cancelled the standing order instead - if they want their money they're gonna have to work for it.

 

This is the last letter I'll write on this, the next thing they'll receive will be the POC.

[chris1977]

Received the following response to my reminder letter to them having so far failed to comply with my SAR:

 

Thank you for your letter dated 18th March 2008.

 

Please accept my apologies for any misunderstanding our previous correspondence may have caused.

 

I assure you that we make every effort to adhere to customers' instructions though in this instance we failed to display the appropriate level of care and attention to detail when providing you with information. Although there is no way of eliminating human error, I feel the mistake was avoidable and relevant feedback has been given to the individuals concerned.

 

With regards to the other points raised in your letter these have been forwarded to another department who will respond under seperate cover.

 

Your sincerely

 

General Manager, UK Operations

 

They've actually got until the beginning of next week to comply so with my SAR so we'll see what happens....

[chris1977]

No response received yet to my letter in post #76 so if there's nothing in the mail when I get home tonight, it looks like court is my only option. I'll be really grateful for any help at this stage as it's all very daunting

 

Is MCOL the way to go? And how can I make sure it's allocated to small claims - I really can't afford it otherwise

[Castlebest]

Hiya Chris, as I said just take it one step at a time even if it does get to court room stage (which I doubt) this is far less daunting than most people think, its normally you the judge and someone from the banks legal seagulls around a table in a little room. Your a litigant in person so the judge will help you out where he can, as long as you know your arguments it will be easy .

 

Just listen to what is being said and think about it, if the Bank try to pull anything out of the hat you haven't seen and arn't sure of say so, everything they rely on as a defence should be submitted before the hearing so shouldn't be allowed. If the judge is willing to allow it ask, for an adjournment to consider the new information, so nothing will happen that your not prepared for.

 

We don't use MCOL any more because the online forms limit the number of characters you can type in your particulars of claim, it far better to use a paper N1 form and give a full description adding any pages you need to to the document. Just number any pages you add and note these on the actual N1.

 

You will be submitting your claim to the small claims court, a judge will allocate which "track" your claim will take as far as I know only claims with a monetary value over £5000 get allocated to the more complicated fast or multi tracks but I'm sure Chris will correct me if I'm wrong here.

 

Good luck

 

pete

[chris1977]

Hi Pete,

 

Thanks for the advice and support, it's very much appreciated. I'll crack on with the N1 over the next few days and post it up when I'm done.

 

Just one other question in relation to my claim. A day or two before the default was registered in June 07, I received a letter from the bank offering me approximately £300 in settlement of my bank charges claim. These charges were accrued over the space of about 6 years or so. With that in mind, would it be reasonable to suggest that these charges are included in the default amount, or is that pushing it a little. Should I just stick to the charges that were included in the overdrawn balance, leading to the default. I hope that makes sense.....

[Castlebest]

whatever the bank have taken from your account in penalty charges you should include in your claim from when you started your figures until now... ignore the 6 years limitations act there are arguments around this and the bank do pay.

 

Until you file your claim with the court you can keep adding the new charges in, what they have offered you in the past has little to do with anything.

 

pete

[chris1977]

Hi Pete,

 

Sorry, I think my question may have been a little unclear. I'm looking at questioning the validity of the default notice (or final demand letter in my case), based on the Woodchester vs Swain case, whereby the inaccurate default amount led to the entire default being invalid. The bank claim that my default occurred due to the fact that my account balance was in negative figures for over 3 months without any credits being applied. The overdrawn balance included one bank charge which has not yet been refunded. However, during my entire time with HSBC I incurred approximately £300 in charges, which I claimed and a refund was offered as a "goodwill gesture" a couple of days before they defaulted me.

 

My question is really this: Is it realistic to say that, at the time the default occurred, the bank effectively owed me £300 in charges taken over the course of 6 years, meaning the amount of the default was inaccurate by £300. Or would it be more accurate to say the the default amount was inaccurate by only £30, as only one charge was applied to my account during the period in which I was overdrawn, immediately before the default?

 

Hope that makes more sense

[Castlebest]

Very good question Chris, and to be honest I'm not totally sure of the answer.

 

I think on balance you should stick to the £30 because the £300 was a goodwill offer and without asking you I know it was made without prejudice so you wont be able to bring this into any court scenario.

 

pete

[chris1977]

Hi Pete, that's what I initially thought, however, on reflection I'm thinking that when they defaulted me the bank, in essence, owed me £300 in "unlawful" charges, meaning the amount I owed the bank was actually £300 less. Wouldn't this make the default amount therefore inaccurate?

 

The offer was indeed made without prejudice, however, the more I think about it, the substantive facts are actually quite clear; irrespective of any offer, the bank owed me money at the time they defaulted me.

[Castlebest]

yes but how do you prove that to a judge? the offer was made without prejudice and therefore you cannot include that letter in your evidence plus this was a goodwill payment (to make you go away) and does not relate to whether HSBC were right or wrong or indeed if they owed you any money.

 

You can prove the £30 and any other penalty charges the bank have deducted from your account by referring to copies of your statements.

 

pete

[chris1977]

I think I see what you mean Pete. So the fact that the bank applied charges to my account, doesn't necessarily imply that they owed me any money. B*gger!

[car2403]

You would be proving it to the Judge by bringing the same issue to Court to get them to adjudicate on the issue of the accuracy of the Default Notice by questioning the lawfullness of the penalty charges.

 

This could be dodgy ground, as you've accepted an offer, presumably in full and final settlement, without prejudice, on that particular issue.

 

Having said that, without prejudice works both ways, so you can use that to your advantage. The problem will be with the wording of the "settlement agreement", as if it states it covers all claims, whether known or not at that time, this could scupper you.

[chris1977]

Hi Chris. So, can I refer to any of this in my POC at all?

 

I might be misinterpreting something here, but the way I understand it is this: whether they made an offer without prejudice, with prejudice or did not make an offer at all, the issue will be that the lawfullness of the charges is in question, thereby bringing into question the validity of the default notice. The lawfullness of the charges will not be determined until the OFT test case ruling. So......I think this means that it's an arbitrary decision as to whether I challenge the fact that the default notice was inaccurate to the tune of £30 (based on the single charge they applied whilst I was overdrawn) or £300 (based on the total of charges I was in the process of claiming at the time I was defaulted).

 

The problem will be with the wording of the "settlement agreement", as if it states it covers all claims, whether known or not at that time, this could scupper you.

 

The letter itself doesn't state this, but there was an offer acceptance form that I had to sign and send back; I'm not sure if there was a statement to that effect on there. If they hadn't defaulted on my SAR I might be able to tell you

[car2403]

If the settlement agreement contained that phrase, it could make any further action on the same issue unlawful - at least they will claim unjust enrichment, in that you are claiming the charges are unlawful by virtue of your claim for default removal.

 

I'm not an expert on this area of law, so it would be worth bringing in some mods to get some specialised advice - I suggest pt2537 and tomterm8, if you want to PM them, but any mod online should be able to help.

[chris1977]

Thanks Chris.

 

I've just had a look at my credit file as at today's date and noticed that there have been no updates to the default entry since it was recorded in August last year. The date updated field in my credit report is showing 11th March 2008 though. Is this right?

 

Also, they claim to have sent me the final demand letter on 27th June 07, yet the default is recorded on my credit file as having occurred on the 15th August 07

[chris1977]

Sorry, ignore the above post. My mistake

[chris1977]

OK, I'll be taking my first stab at my POC tonight, but before I do, I'd just like to go through how I understand my case and would be grateful for any advice, comments or corrections. So....

 

I'm questioning the validity of the default using the CCA 1974 and DPA 1998. The CCA because they do not seem to have conformed to the requirements of the OFT Section 74 determination, meaning Part V of the act applies as the overdraft is running-account credit. With that in mind they have:

(1) Failed to supply me with a copy of the signed executed credit agreement and are, therefore, in default of my Section 78 request. Without said agreement the debt is unenforceable, however, as the agreement was after 2006 it is enforceable by court order in accordance with CCA section 127.

(2) Failed to follow the correct procedure for defaulting me by failing to issue a default notice in the prescribed form and content.

 

If, however, the bank can prove that they have met the requirements of the OFT determination, 1 and 2 above will be irrelevant. I will then have to count on:

 

(3) The default amount being inaccurate as it contained a £25 penalty charge, meaning any default notice / Final Demand letter would be invalid. (This could be a problem due to the ongoing test case as the lawfullness of these charges is yet to be decided - so there's a risk here that my claim may be stayed pending the outcome?)

 

(4) The alleged final demand letter that they produced on request was clearly contrived. That said, a judge may accept a witness statement etc that standard procedure was followed at the time the letter was "sent".

 

(5) During the 28 day period granted by the alleged final demand letter, I was in contact with the bank to try to come to a satisfactory arrangement and avoid the debt being passed to a DCA. I have email evidence of what was discussed with the branch manager, yet the bank chose to do nothing at this time.

 

And under the DPA 1998, as they have:

 

(6) Shared and continue to process my data without my consent - they have failed to provide a copy of a signed agreement showing my consent and are in default of my S10 notice under DPA 1998.

 

And what I am asking the court to order if the bank is found guilty is removal of the default, an order that the debt is unenforceable and payment of court costs and damages.

 

Please feel free to provide comment, criticism and / or correct me.

 

Incidentally, they are now in default of my SAR and the LBA has gone off today giving them 7 more days. Is it best to deal with this as a completely seperate claim?

 

Grateful for any and all advice.

 

Cheers

[car2403]

Don't forget that the Default Notice is inaccurate because of those charges, so the data is inaccurate under the DPA also.

 

The DPA SAR enforcement claim, if you need to go that far, can be dealt with as part of the same claim - you do have a separate cause of action under that, so you could issue a different claim, as that could spur them on to replying to it sooner. The issue I can see with putting them all in one claim is that it may take longer for the Court to deal with all the issues - issuing a DPA SAR claim separately may mean you get the information you need for your Default claim sooner, IMHO. It's your call - I suppose one claim would save you some Court fees at least.

 

The rest looks fine - you're getting the hang of this now... fancy a job as a site helper?

[chris1977]

Don't forget that the Default Notice is inaccurate because of those charges, so the data is inaccurate under the Data Protection Act also.

 

Good point! Thanks Chris.

 

The Data Protection Act S.A.R - (Subject Access Request) enforcement claim, if you need to go that far, can be dealt with as part of the same claim - you do have a separate cause of action under that, so you could issue a different claim, as that could spur them on to replying to it sooner. The issue I can see with putting them all in one claim is that it may take longer for the Court to deal with all the issues - issuing a Data Protection Act S.A.R - (Subject Access Request) claim separately may mean you get the information you need for your Default claim sooner, IMHO. It's your call - I suppose one claim would save you some Court fees at least.

 

I hear what you're saying. I think I'll tackle them as 2 seperate claims. I can just about afford to stump up the court fees - making the bank sit up and listen to the fact that I'm not just going to go away will, alone, be worth the fees!

 

The rest looks fine - you're getting the hang of this now... fancy a job as a site helper?

 

haha I think I'll wait to see how this pans out first. I think I'd rather be a site helper with bragging rights to at least one successful claim, than with none at all

 

If you don't mind Chris, I'll "borrow" your Barclays POC as a fair bit of it is also relevant to my claim.

[shieldblaster]

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!

[chris1977]

Thanks Shieldblaster, and best of British with yours and your mother's situation also. I've just read through your thread and it's an interesting read - I'll be keeping an eye on it and I hope it all works out for you

[Castlebest]

Hiya Chris it looks like you have it all fairly straight now one thing I will say, the law is a very precise thing, it doesn't matter if the default figure is £300 wrong or £30 wrong or even a penny, its wrong full stop .

 

pete

[chris1977]

Thanks Pete. Having read the Woodchester v Swain ruling, there is a statement by the judge that implies that a minimal error may be overlooked as "de minimis". That is why I was considring using the higher figure - £300 is less likely to be seen as de minimis, whereas £30 may be....