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HSBC managed account - Trying to remove a invalid? default


chris1977
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Chris, take a look at my GE thread, as I sued them for SAR enforcement using this process - you'll see my cost workings outs (?) and how to set it all out; (It's a short thread, so it shouldn't be too hard to skim through to get through the Default issues)

 

http://www.consumeractiongroup.co.uk/forum/other-stores/110148-car2403-ge-capial-bank.html

 

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Thanks Chris, that's just what I was looking for. Can I ask where you got the hourly rate from?

 

Also, I've just checked with Royal Mail and it appears that my LBA hasn't been signed for yet, despite being sent first class recorded delivery on Saturday. I think I'll be using special delivery from now on :mad:

 

Interesting thread by the way Chris

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Can I ask where you got the hourly rate from?

 

CPR Part 48.6(4)(b) and Practice Direction 52.4;

 

CPR 48.6(4)(b);

where the litigant cannot prove financial loss, an amount for the time reasonably spent on doing the work at the rate set out in the practice direction

 

SECTION 52 LITIGANTS IN PERSON: RULE 48.6...

52.4 The amount, which may be allowed to a litigant in person under rule 46.3(5)(b) and rule 48.6(4), is £9.25 per hour.

 

Also, I've just checked with Royal Mail and it appears that my LBA hasn't been signed for yet, despite being sent first class recorded delivery on Saturday. I think I'll be using special delivery from now on :mad:

 

Doesn't matter, as the same rules apply for LBA's as "service" of other documents, IMHO...

 

CPR Part 6.2(1);

 

A document may be served by any of the following methods –

...

(b)first class post (or an alternative service which provides for delivery on the next working day);

 

The Court does not send claim forms by recorded/special delivery, so why should you need to use this for an LBA?

 

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That is a great thread of car's. It looks like you have it all under control now chris.

Just thought I'd let you know that I have been advised that distress should not be claimed for unless the circumstances are exeptional.

The burden of proof for distress is VERY high. It would need to be supported by medical evidence.

I also understand that DJ's are very sceptical of such claims.

 

So just leave that section blank.:)

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Agreed regarding the level of evidence, freaky, but s.13(2) DPA 1998 is clear - if there is distress and damages, you can claim for both; (note, you can't claim for distress on it's own under the DPA)

 

(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if—

(a) the individual also suffers damage by reason of the contravention

 

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Thanks again for all your help folks, I think I've got enough to be going on with for now. I'll knock up a new claim for their failure to comply with my SAR over the weekend but I think I'll leave the distress part well alone - I guess I can claim distress, as failure to provide the data I requested is directly affecting my claim for default removal, however, I really don't know how to prove or quantify that distress.

 

I'll also submit a complaint to the ICO.

 

Unfortunately, HSBC have been thrown a bit of a lifeline for both of the impending claims, by virtue of the fact that I can't afford the court fees until late next week! What a time to be skint!

 

I'll keep you all posted anyway and thanks again for your help

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Have you considered the part 8 process? If you're only claiming for SAR compliance, it will be quicker and could mean you get what you want for your default claim much sooner; (you can't claim damages under the Part 8 process, though)

 

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/taking_a_case_to_court.pdf

 

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Have you considered the part 8 process? If you're only claiming for S.A.R - (Subject Access Request) compliance, it will be quicker and could mean you get what you want for your default claim much sooner; (you can't claim damages under the Part 8 process, though)

 

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/taking_a_case_to_court.pdf

 

To be honest Chris, I think I'm owed damages so I'll carry on with the full process.

 

Just to update you all, HSBC have failed to acknowledge any of my reminders or LBAs so I have today posted 2 x N1s - One under sections 7 & 15(2) of the Data Protection Act 1998 and one for Default removal.

 

I guess this is where it gets interesting, and where I'm even more likely to be calling on you all for advice and guidance. Just thought I'd warn you off ;)

 

I'll keep you posted

 

Chris

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  • 2 weeks later...

Not much happening with this so far. Sent off both of my N1s a couple weeks back, then 2 days later received a stock letter from HSBC thanking me for my query and that they were investigating the issues I raised. The letter did not refer to any previous letters I had sent so I'm not sure what "query" they were investigating, just found it odd that they haven't written to me in almost a month but two days after I send the court paperwork off I receive a letter from them.

 

Incidentally, my N1s were bounced back as I was 5 quid short on each cheque. Whoops!! Sent them off again last week, this time with the correct court costs :p Curiously though, I received a letter from HSBC two days after sending the court paperwork off a second time, stating that they apologised for not complying with my SAR as their office only received it on the 23rd April. The main issue here is that they responded to my SAR long before 23rd April; they just sent me a load of bank statements, so saying they only received the request on 23rd April is a pretty poor excuse and is, in fact, a blatant lie! The other thing is, and maybe I'm being paranoid here, but HSBC haven't written to me in a good few weeks, yet all of a sudden I receive two letters, each one of them two days after I sent my court paperwork off. Also, they have always corresponded with me using the short version of my name, as this is how I always refer to myself in correspondence, however, in their most recent letter they have referred to me by my full name, as in my N1. I'm sure this is just a coincedence but it does seem a little odd.

 

Anyway, conspiracy theories aside, I think the best thing to do is to write to them and advise them that I have commenced litigation proceedings. Is it worth giving them a settlement option this early on though? Or should I just let the legal proceedings take their course....? Any advice welcome

 

Cheers

 

Chris

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Anyway, conspiracy theories aside, I think the best thing to do is to write to them and advise them that I have commenced litigation proceedings. Is it worth giving them a settlement option this early on though? Or should I just let the legal proceedings take their course....? Any advice welcome

 

Chris, the left hand doesn't know what the left hand is doing here - literally!

 

Personally, I wouldn't be writing to them to tell them you've started proceedings. That isn't your job, but is the job of their Corporate Counsel. In reality, that probably won't happen, as they are likely to pursue your "complaint" in the complete lack of knowledge that you've started a claim against them.

 

What I would be doing is watching my letterbox, like a little excited chiwawa (I had to Google that word, BTW!) with a wagging tail, waiting for the acknowledgment of service from them - once they say they intend to defend in full, you'll need to send them a CPR Part 18 request for more information, which is more powerful than a S.A.R. request. You can them ask the Court to order the compliance with it, if they fail to reply. (I'll pull the template together once you've received the AOS)

 

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Hi Chris,

 

Just to clarify, I've sent off two N1s - one for the default removal and one for them failing to comply with my SAR. It's the latter of the two which I was going to advise them I had started proceedings in relation to.

 

I just think it would show the court, if it comes to it, that I had given them every opportunity to settle before it saw a court room. And, it might get me the information I need for my default removal claim sooner.

 

What do you think?

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I think your LBA would have done that already.

 

You're right Chris, but I get the impression that they take these "threats" with a pinch of salt as they seem to expect the average joe to not have the minerals to go through with it! I think I'll just wait to see what comes first, their AOS or compliance with my SAR.....

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Whats The Latest Chris???

 

Hi Shaff, welcome to the circus! No developments yet, just waiting for them to acknowledge service of both claims. I'll definitely keep you posted though.

 

Cheers

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Just received confirmation from the court. Both claims deemed served on 10th May. HSBC have until the 26th to respond so I'll hopefully know more by then. I'll keep you all posted

 

Cheers

 

Chris

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Just looking over my claim again and thinking about this extract from the OFTs S.74 determination:

 

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

 

Does the statement "Interest will be added on the same basis as presently applies" comply with the above requirement. And what does the OFT consider as "applicable charges"?

 

I know I should probably sit tight and just wait for their defence but I'm getting really impatient now. And my claim was only served 2 days ago :(

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Chill out, dude... ;)

 

You don't need to construct their defence for them - they'll make a botch job of it anyway, so anything you give them will help them out... ;)

 

IMHO, that statement wouldn't stand up, as it would need to say how changes in the interest rate that "presently applies" would be communicated to you. If it said, "our present rate applies and we will update our website and place adverts in 3 of the National newspapers where changes are made", that would probably work.

 

The OFT says "charges applicable" and not "applicable charges". I may be being pandantic, but there is a difference. Again, IMHO, that means any charges that the Bank will apply to your overdraft, not those charges that are seen as overdraft charges. It's not easy explaining that on a forum, but, for instance, I would take that (and the Court probably will too) to cover all charges applied to the account, whether you're in your overdraft or not. If that weren't the case, they couldn't enforce charges applied while you were in credit, which seems bizarre.

 

The OFT is a minefield for the Banks, but that's why bringing a claim against them using it can only succeed, as it has done with me - and many others - in the past.

 

In the meantime, go pour yourself a Pina Colada and RELAX...!

 

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IMHO, that statement wouldn't stand up, as it would need to say how changes in the interest rate that "presently applies" would be communicated to you. If it said, "our present rate applies and we will update our website and place adverts in 3 of the National newspapers where changes are made", that would probably work.

 

OK, that works for me :D

 

The OFT says "charges applicable" and not "applicable charges". I may be being pandantic, but there is a difference. Again, IMHO, that means any charges that the Bank will apply to your overdraft, not those charges that are seen as overdraft charges. It's not easy explaining that on a forum, but, for instance, I would take that (and the Court probably will too) to cover all charges applied to the account, whether you're in your overdraft or not. If that weren't the case, they couldn't enforce charges applied while you were in credit, which seems bizarre.

 

What charges are applicable in relation to a current account with an overdraft? Would charges for unauthorised borrowing and bounced cheques etc count as charges applicable?

 

In the meantime, go pour yourself a Pina Colada and RELAX...!

 

haha sound advice as always.

 

Cheers :cool:

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What charges are applicable in relation to a current account with an overdraft? Would charges for unauthorised borrowing and bounced cheques etc count as charges applicable?

 

That's exactly my thinking.

 

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Hiya Chris, Chris's advice is sound as ever :).

 

Once you get to the court stage there is a lot of waiting involved and the best thing to do is exactly that, wait and see what they say... you cant second guess them and as Chris says they will probably botch the defense anyway so going over the terms and conditions will do no good until you know what they have said :).

 

pete

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Thanks for the advice gents. I'm just by nature a very impatient person :-| Also, I want to make sure I completely understand their failings in case I need to clarify my cause of action or anything in my POC. But I completely see your point about not second-guessing them - I just need to take a chill pill and wait for them to screw it up.

 

Incidentally, it wasn't the terms and conditions I was looking at, it was the letter that they produced in response to my CCA request which, on the face of it, looks like it complied with the extract from the OFT determination that I quoted above. But on closer scrutiny this may actually be the key to convincing a judge that they failed to comply with the determination.......

 

Anyway, I'll shut up now! Pina colada anyone?? :D

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