My mum v HSBC

[shieldblaster]

Hi Andy

 

Thanks once again for your welcome and invaluable help and support. I have no intention of blinking first at this stage My initial instinct is to go for the jugular and haul them in front of a judge, primarily because of the unlawful default they have place on my mothers previously impeccable record. But for now I will first report them to the relevant authorities and continue to read round the site this weekend as it really is an invaluable resource

 

I must admit i have never had to take anyone to court so if you or anyone else have knowledge of an 'idiots' guide to it I would be most grateful

[The GodMother]

Shieldblaster

 

You have left your mums credit card number on the letter. For security reason please can u remove it.

 

Chrissi

[shieldblaster]

Shieldblaster

 

You have left your mums credit card number on the letter. For security reason please can u remove it.

 

Chrissi

 

Thanks for pointing out my error. I have removed it

[The GodMother]

yw anything to help.

[shieldblaster]

Hi Shield I trust you and Your mother are well

 

Basically you now have them over a barrel, hence they know this and are willing to negotiate a suitable payment agreement which really is their final throw of the dice. HSCB play hard ball and will not admit defeat

Now the fun begins you can either enter into this dialogue with them which must be yours and your Mothers decision, and set an affordable payment which may take many moons to conclude.

The alternitive is to do nothing untill they try to continue to recoup said debt, and let them pass it to whoever, they will ,as they have no further recourse in their stance to the position you have have put them in.

Of course this should not be done as the account (even though they dont agree but they wouldnt) is now in dispute and we can advise action to take should they try this.

You have stated the position in your previous letter to which they really have no reply but to comply with your request until they do, there is very little open for them to attain

 

Its a case of who blinks first now .

 

 

Regards

Andy

 

Hi again all I haven't posted anything recently as the situation seemed to reach a stalemate except that HSBC have now lodged a default on my mothers credit record and I have busied myself registering complaints to the TS and FOS but this morning I have received a letter from Metropolitan Collection Services just as Andy predicted (must be psychic )

 

It's a standard letter requesting I contact them within 7 days with full payment or legal proceedings.. blah blah blah.

 

The reason for my post is that I have constucted a reply to this and would appreciate anyones observations, help, advice etc as to it's content?

 

I am now seriously thinking of taking my own action against HSBC as I feel they have been given enough rope and seem intent on hanging themselves. They have never complied with my original CCA request so anything they have done since that has only helped my case imo and I€ consider I have good evidence of that to present to a judge. I have never gone this far in any action and must admit to feeling a litte nervous and apprehensive but I feel I owe it to my mother and I know that I will have excellent support and a weaslth of knowledge from this site so thats comforting at least

 

Anyway..here is the letter...any comments gratefully welcomed

 

 

 

Metropolitan Collection Services

56 St James St

Edgebaston

Birmingham

B15 1JL

 

22 March 2008

 

Your ref: 29687464

 

Dear Sir/Madam

 

 

 

I am the son of Mrs XXXXX and acting on her behalf. I have included a copy of the Power of Attorney for your reference. Also all communications regarding this issue are being directed to my home address following harassment by HSBC bank against my elderly mother.

 

Might I inform you that I consider this debt to be in dispute. I have enclosed a copy of my most recent letter to HSBC and as you will see they have still yet to conform to my request under the Consumer Credit Act 1974 s78 (1) and provide me with a true copy of the signed agreement pertaining to this debt.

 

As they have failed to do this I DO NOT acknowledge any debt either to you or HSBC Bank. Might I also point out to you that any action to attempt to retrieve the debt whilst it is in default is considered a summary criminal offence under the CCA 1974 Sec 78 (6)

 

That being the case I would appreciate an explanation as to why you see fit to pursue this debt when there is obviously not in existence a true lawful agreement signed by both my mother and the creditor? because it follows that if that is the case then there has not been a legal assignment of this debt to yourselves and you are also acting unlawfully and outside the CCA 1974.

 

Might I also inform you that a complaint has been registered with the Financial Ombudsman Service and Trading Standards.

 

I also feel it fair to inform you that I am in the process of building a case to take to court myself to have HSBC explain to a judge why they think they can flout the law and to have the default removed that HSBC have unlawfully placed on my mothers credit record.

 

Please take note that you have 14 days in which to reply and that any attempt to contact my mother directly will be considered harassment and in violation of the Administration of Justices Act 1970 s40, the Protection from Harassment Act 1997 s3 as well as breaching OFT collection guidelines and your actions will be reported to any regulatory authority as I see fit and will be included in my action against HSBC Bank as further proof of their complete disregard to the Consumer Credit Act 1974 under which they are licensed.

 

I await your response.

 

Yours sincerely

[Castlebest]

Hiya Sheild, they looks good to me and should put Metro on the back foot.

 

Just a note about Metropolitan, they are a wholey owned subsidiary of HSBC so its just the banks own collections department in effect .

 

Don't worry about going to court, as long as you prepare well and have your arguments straight you will sail through it.

 

Good luck

 

pete

[johnnymitch]

I like that letter shield - straight to the points - no messing- they should be in no doubt where they stand........

 

As pete says, the court is not a great ordeal if you have everything ready to present. The judges are pretty good and helpful to 'Litigants in Person' - (that's you & me) . They realise we're not legally trained and they appreciate a genuine attempt to conform.

 

Best of Luck

johnny

[shieldblaster]

Thanks Pete and Johnny It's people like you that give me confidence that I can see this through to the bitter end Interesting fact that metro are a subsidary of HSBC... didn't realise that.

 

I will send the letter of recorded tuesday and see what transpires, meanwhile I wll start building my case and gathering as much info form here re. taking them to court.

 

Thanks again

[shieldblaster]

Hi again all I have posted the above letter recorded this morning so I shall wait and see what, if any, response I get from it.

 

Ater giving it some serious thought over the weekend I have decided that the best form of defense is attack so I'm going to take these blighters to court. My simple defence at the moment is that they have failed to comply with my CCA request under the CCA 1974 and that anything that they have done since, including placing a default on my mothers record is unlawful if not illegal. This is in simple terms obviously as I haven't a clue as to the correct procedures that need to be done but I have bought the 'Small Claims Procedure' book as advertised here and will be reading that thoroughly and gleaning as much info from this superb site as I can, I am in no race so I want to get things right as much as I can. As I said I'm a bit apprehensive and nervous about it but have gained so much support and confidence from this site and you lovely people I'm confident I can tackle any hurdles that I might meet.

 

I would be ever so obliged if anyone can point me to anything that might inform and assist me in the above action or if you can suggest anything that might help me, if only your good wishes

 

Thanks everyone that has taken the time to contribute to my thread thus far, you have assisted in helping a wonderful dear lady who is my mother and you are truly angels

 

Regards

 

Mick

[Castlebest]

Hiya Shield, here's the CCA thread you need to read, it has loads of good information but unfortunately its huge

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements.html

 

remember its a discussion thread so anything you don't understand or are unsure about just ask

 

pete

[shieldblaster]

Thanks pete... looking at it now think im goona be reading it some time too

[AndyOrch]

Hi Shield

 

Apologies for the delay in responding to your pm.Having refreshed myself with your circumstances of your thread i am still of the opinion that its a case of no CCA no debt so in reality let them try to enforece it.

Default removal should be kept as a side issue for the moment and as for you instigating litigation well thats a matter only you can decide but i would not advocate in this instance after all if they cant enforce said debt,then any more threats from whoever will inevitibaly be as shallow.

Once the alleged debt as been transfered again and probable more threats I would be prepared to say it will run its course and extinguish itself.Then you will be in a position to deal with the unlawful Default removal as a seperate issue.

Excellent letter by the way and I hope the above helps in your predicament:)

 

 

Regards

Andy

[shieldblaster]

Hi Andy, nice to see you again and thanks for running your eye over the latest happenings

 

As I have said I am in no rush to bring these people to court and I very much take on board what you have said and the reasons behind it. It's probably gonna take a few months just to read and digest the thread that pete has suggested So meanwhile we shall see what transpires from my most recent letter and perhaps take it from there. It does seem that they are chancing their arm but seem very much like a dog with no teeth for the simple reason that there appears to be no CA in existence and I see your point that given enough time, and rope, they will probably do their own hanging which would then be the prime time to go for the removal of the default.

 

I still have as yet to S.A.R - (Subject Access Request) them so I can be doing that and reading up whilst we wait and see. I will keep you all posted as to what happens next

 

Thanks again

[shieldblaster]

 

Hi All

 

Have received a reply from my last letter as you can see in the above.

 

Two observations that I have are that:

 

1. I never asked for an application form in my CCA request but a true signed copy of the original agreement. So if they send me an application form (which I doubt considering my mother took this out 30 years ago) a letter will be winging it's way back to them reminding them of ther duties under the CCA act.

 

2. One that I'm not totally sure about but as far as I know it doesn't matter whether the agent acting on behalf of the creditor is in-house or out-house there still has to be a deed of assignment for the simple reason that personal info has passed between two data controllers. Will have to read up on that one under the DP act but I would welcome any points, observations, suggestions in the meantime.

[Castlebest]

 

2. One that I'm not totally sure about but as far as I know it doesn't matter whether the agent acting on behalf of the creditor is in-house or out-house there still has to be a deed of assignment for the simple reason that personal info has passed between two data controllers. Will have to read up on that one under the DP act but I would welcome any points, observations, suggestions in the meantime.

 

I think your right, if the information passes from one data system into another, but be careful with Metro, as I said before they are little more than a HSBC department using a different letter head to fool people even their staff email addresses are [email protected]

 

I know they are in the same building as DG Solicitors and DG have exactly the same computer network that your branch has, stands to reason Metro do to, if thats the case they probably all have the the same data controller.

 

pete

[AndyOrch]

Hi Shield

 

As Pete says if the debt is still with the O/C as it would appear in your mothers case then leave DOA alone, which by the way you would not be privy to anyway its the NOA that would have to be shown but it does not apply anyway in this instance.Take note from their reply that is where the clue lies you and I know they havent got the signed CCA, they know this also hence the term application form which even if they have that i doubt it could be construde as an application/agreement in its true legal form.Dont wing any letters back,you have requested it and they have failed to supply and until such time as they comply they know they cant attempt any litigation but will try hard to bluff and confuse you in attempt to make you comply.Sit tight ignore the huff and bluff and see what transpires.They state themselves the account is on hold and will forward said application on reciept from their client,so let them comply.

 

I trust the above helps with your concerns

 

Regards

Andy:)

[johnnymitch]

Good advice there from andy, shield...........

 

The ball is in their court , the account is on hold. The next move has to be from them - if they can produce it , which is doubtful . Just let them get on with it ....

[shieldblaster]

Thanks all for your input. Excellent advice from all as usual particularly Andy and Johnny and I take on board you are saying and will heed it.

 

Will do as you suggest and leave the ball firmly in their court and will post up anything I receive (if ever)

 

Thanks again

[johnnymitch]

You're welcome shield - I'm learning from you as well ....that's what this site is all about.........

[shieldblaster]

I'm sitting here on a rare quiet sunday morning (kids away )which has given me the opportunity to consider my position thus far.

 

I haven't as yet had any response from Metro Services following their notification that the account was on hold pending further enquires and I was wondering what you would consider a reasonable time to allow them to do this?

 

I ask because I'm still considering the court route if I have to to, primarily, get the default removed from my mothers CR. I am still reading around this excellent site and trying to gather as much info as I can regarding court action as it would seem to me that this is the only thing that seems to motivate these blighters to do the right (lawful) thing and abide by the law as contained in the CCA.

 

My thoughts so far is if no valid CA is forthcoming I have a solid argument to get the debt ruled unenforceable which follows that the instrument of default cannot also be used. Simply put that if you are operating outside a lawful agreement, in that there isn't one, as laid down by the CCA 1974 you can't then use the instruments of that law ie. the default clause.

 

If that is the outcome of the case(and i know its a big assumption ) then the removal of the default forthwith will also form part of my argument.

 

Am I also right in thinking that if the outcome is as above I can then claim for any interest or penalty charges that they have applied to the account? if so how far back can I go? The way I see it if the debt is not proved and an agreement is not in place then ALL of the interest, or any penalty charges, applied to the account is unlawful... but i'm sure i'm probably wrong on this issue and would welcome any advice in this area as this is one where I'm not very clear on.

 

Hope you will forgive my sunday morning ramblings but I just want to be prepared for any event that might occur and welcome any help, advice, criticism(constructive )

 

Thanks everyone and have a good day

[Castlebest]

Am I also right in thinking that if the outcome is as above I can then claim for any interest or penalty charges that they have applied to the account? if so how far back can I go? The way I see it if the debt is not proved and an agreement is not in place then ALL of the interest, or any penalty charges, applied to the account is unlawful... but I'm sure I'm probably wrong on this issue and would welcome any advice in this area as this is one where I'm not very clear on.

 

 

Hiya Shield, I'm no expert on CCA's so would welcome any corrections but this is how I understand it.

 

If you prove there is no agreement for a loan (or credit card) under the Consumer Credit Act then then there are no terms and conditions governing the loan including repayment terms therefore the lender must never have expected repayment and the whole thing is viewed as a gift in the eyes of the law and the lender has no grounds at all for recovering anything.

 

This may be only in extreme cases so you really need to find the relevant case law and have a read also there is obviously a moral obligation to repay the original part of the debt that you did have from the lender and spend but if I have things right the result is you decide which bits of the debt you do owe them.

 

pete

[car2403]

This is from a post by Paul;

 

i also found this little gem in Sir Andrew Morrits Judgment in the Court of Appeal in the Wilson & FCT case, i note that the House of Lords have not disturbed this part of his judgment since the HoL only looked at the issue of S127 being compatible with the Human Rights Act

 

 

Quote:

“In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift,of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;”

[shieldblaster]

Thanks for your input Chris and Pete. I entirely agree with Pete that there is a moral obligation to repay the principal but in the light of what Chris has posted it could be said that because of their own ineptitude in following the law as stated in the CCA 1974 they have left themselves wide open if they can't provide a legal CA with its incumbent terms and conditions.

 

The way I see it in simple terms is its like me giving someone some money without any lawful written down agreement of repayment which may or may not include interest.

 

If the person I lent it too then decides not to pay it back I have no legal standing to force him to do so, also I can't then clutch certain instruments of the law in order to force him to pay it back..in other words I don't have a leg to stand on. All I can do is ask him to pay it back..and basically accept whatever he decides to do...he could say he thought it was a gift..as Chris's post suggests.

 

However I'm with you Pete, this was never about dodging the debt but simply finding out who had legal ownership of the debt. And had they provided me with a CA I would then have negotiated a payment plan with them. What gets my goat is the way they have completely flouted the law, the very law that they are registered under, and then used instruments of the same law to suit them ie. the default clause. So I intend to lead them a merry dance but WITHIN the law and make them accountable for their irresponsible and unlawful actions, and if that means clawing back any interest or penalty charges back then that's what i will do. I really don't see why they should benefit from something when they are not prepared to play by the rules, or break the rules as and when it suits them.

 

I'll climb down of my soapbox now

[chris1977]

Go get 'em Tiger!!

[The GodMother]

U know guys that is actually my latest favorite saying.