My mum v HSBC

[shieldblaster]

Hi all

 

I hope someone can offer me some advise on the following and please bear with me while I try and furnish you with as much details as I can.

 

My mother is 78 and is in very poor health with acute angina and severe arthritis. Because of her constant visits to hospital and her general poor health she has let money matters slip and in june of last year she missed payments on the above credit card which was originally an Access card she took out some 30 odd years ago. HSBC responded with a default notice on 21 August 2007 and because of her poor health and a willingness just to help her I took over Power of Attorney and replied to the notice on 26 August 2007 explaining my mum's situation and that from now on would be taking over as Power of Attorney and supplied them with a copy of same and also a CCA request with a £1 cheque. They responded with a letter on the 6 December sating that under the CCA sec 78(1) they only have a duty to supply a copy of the original agreement terms at the time the account was opened and a copy of the latest terms to show that the agreement has been varied by them at some time and they state that they are under no obligation to provide a photocopy of the orginal agreement.

 

From my experience on this site and the excellent advice it offers I knew this to not be true and wrote back to them stating just what Sec78(1) requires them to do, even transposing that part of the Act to the letter for them. I also reminded them of what is contained in Sec 78(6) re. time limits etc. and in additon told them that any agreement that does not contain signatures and presribed terms is unenforceable even in a court of law as laid down in Sec 127(3).

 

Thiee response to this was a reply dated 3 January 2008 that states that under Consumer Credit Regulations 3(2) (cancellation notices and copies of documents) allows that certain items may be omitted such as signatures etc. which I know to be correct but they insist they do not have to supply me with a photocopy of the signed agreement but just a copy of a agreement that my mother might have signed. but they then go on to say that these regulations, namely regulation 7, requires them to provide a copy of THE executed agreement, as varied, where there is power to vary the terms of the agreement. So they have now provided me with a copy of the T & C's, a copy of the latest variation notice, and a blank copy an agreement form, but no original

 

Now we are in no way disputing that the debt exists, my objective is to try and ascertain whether the agreement is enforceable in a court of law so I can at least get a bit of leeway in trying to establish a reduced payment. So far I have done nothing except seek out your advice as my head is swimming a bit The way I see it is that they don't have the original agreement, which is what i suspected being the card is 30 0dd years old!, and the rest is just smoke and mirrors to avoid conforming to my original request. They are still contacting my mother by phone,despite me telling them not to and to direct any communication via me, and today my mother tells me that they have sent another default notice today.

 

I'm sorry if this is a bit longwinded but I thought that if i'm gonna ask for your advice you at least needed to know the history as best as i could explain it If it helps I can get the letters copied and posted too. I would be grateful for any advice as to the way forward or any observations you migght have as this isn't helping my mums condition one tiny bit and I really want to help her get these peole of her back as best I can. Many thanks in advance

[shieldblaster]

Many thanks Andy for your quick and helpful response Can I just check as to which copies wish to be posted... Are you asking for copies of the default notices or copies of the agreement they have sent?

 

What I could do with is some pointers,suggestions, advice as to what to put in my next letter, and any other action I can take.. and thanks for the suggestion to check out Curlybens letter

[shieldblaster]

Ok as requested here is the first default letter, unfortunatly I have left the other at my mums so i will get it tommorow and post it

 

Thanks

[shieldblaster]

Having checked the attachments in my last post they seem a bit small so I have posted them to photo bucket

 

http://i181.photobucket.com/albums/x131/shieldblaster/default.jpg

 

http://i181.photobucket.com/albums/x131/shieldblaster/default2.jpg

[shieldblaster]

Sorry Andy was doing just that when we cross posted

[shieldblaster]

No Andy there is nothing at all that is underlined. The other notice was issued a few days ago and I will post it tomorrow

[shieldblaster]

As requested here is the second letter received on 14 Jan 2008. Apologies but when my mother received it she thought it was another default but it is in fact a final demand.

 

http://i181.photobucket.com/albums/x131/shieldblaster/finaldemand-1.jpg

http://i181.photobucket.com/albums/x131/shieldblaster/finaldemand2-1.jpg

 

It would seem that they have already placed a default on my mothers CR despite me being in communication with them and informing them that this issue was in dispute and, perhaps more importantly, they have still yet to send me anything that remotely resembles the original CA.

 

I have telephoned HSBC today and have managed to get them to remove my mothers address and tele no from thier records and they can now only communicate with me in writing as legal Power of Attorney so that should take care of the harrassment issues. I will of course be repeating this in writing also so I have a record.

 

This is the way I see it now and I would be grateful for any input, advice or observations anybody else might have

 

They have as yet failed to respond to my original request for copy of the original CA because I think they don't have one bearing in mind my mother has held this acount for 30 odd years. Because the can't, or wont, provide me with the CA they are now in default so anything they are doing or intend to do constitutes a criminal offence under the CCA 1974; this includes adding interest and recording a default.

 

Therefore I think my way forward, bearing in mind I now have a default i need to get removed as it was placed unlawfully, is to push them for the CA whislt also reminding them that what they hgave done so far is criminal and give them a set time period where, if they don't respond with the CA, I will take action and haul them before a court under Sec 142 to get a judge to decide whehter what they have is enforceable and if it isnt then I can then ask for the removal of the default as part of my action. If however they do have the CA they need to provide me with it as until they do I will not enter into any other communication with them. Then if they do try to turn the screw anything they do do will only help my case.

 

This is the action I can think off at this moment in time but i reserve the right to add or change it as I have just come in from work and wanted to get this letter posted asapso i will no doubt ponder further action in a long, slow, hot bath

 

Please anyone feel free to add your pennyworth as all input would be grastefully received bearing in mind that it will ga a long way to helping a frail old lady who is very ill and who has not long lost her husband and who, to be quite honest, can do without these parasites on her back.

 

Thanks in anticipation

[shieldblaster]

Thanks Pete this was something that I had in mind to do as I dont think my mum has her statements, certainly not all of them in any case. Thanks very much for your input and suggestion

[shieldblaster]

Thanks Andy with a bit of editing and personalising that template sums up pretty much what I want to say. It gives them adequate time to get their act together and either send me the CA or I have my day in court. Like I have already said my intention is not to avoid the debt but to try and get a more realistic repayment plan that my mother who is on a pension can afford, also it seems I now also have to get an unlawful default removed but first I will await their response to the letter above. I will be preparing the letter this weekend and will get it posted off recorded delivery

 

Thanks again

[shieldblaster]

Ok I have formulated a letter which I intend to send monday. I have used CB's template (Thanks CB ) and have edited and added to it to fit what I think i need to say and hopefully get the answers I need before I move on. I would very much appreciate anyone having a look at it and give me thier opinions, observations, advice etc before I get it ready for the post.

 

Here is the letter:

 

 

 

HSBC Bank

365 Chartwell Square

Southend on Sea

Essex

SS99 2UU

 

19 January 2008

 

Your Ref: XXXXXXX

 

 

Formal Complaint - Letter Before Action

 

 

Dear Sir

 

Mrs XXXXXXXXXXX

 

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

 

On the 28 August 2007 I made a formal request for a true signed agreement for the account under The Consumer Credit Act 1974 s78(1); 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 the 13 September 2007.

 

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 The Consumer Credit Act 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.

"Sec 78(6) if the creditor under an agreement fails to comply with subsection (1)

(a)he is not entitled, whilst the default continues, to enforce the agreement

 

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

 

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

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

HSBC Bank may not pass the account to a third party.

HSBC Bank may not register any information in respect of the account with any credit reference agency, including any alleged default.

HSBC Bank may not issue a default notice related to the account.

 

In light of the above I would be interested to hear your explanation as to why you have seen fit to record an unlawful default on my mother's credit record? Also why you have attempted to contact my mother via telephone and written communication despite me informing you that I have legal Power of Attorney and that ALL communication should be directed to me as I believe that both of these actions are criminal offences under the Consumer Credit Act 1974

Sec 78(6) (b) if the default continues after one month he commits an offence.

 

Also, 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. That being the case reserves the right to report your actions to any such regulatory authorities as I see fit and I would hope that you have taken the appropriate actions as discussed in my telephone conversation with your office on 18 January 2008

 

Please take note that you have 14 days from receiving this letter to contact me an explanation of your behavior and 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

[shieldblaster]

Thanks Andy..will update as soon as or when I get a response

[shieldblaster]

Letter sent to day recorded delivery, will report back when i get a reply

[shieldblaster]

Hi again

 

I have received a prompt reply to my letter :

 

 

http://i181.photobucket.com/albums/x131/shieldblaster/replyhsbc-1.jpg

http://i181.photobucket.com/albums/x131/shieldblaster/replyhsbc2.jpg

 

It basically reiterates what they have said before about them having proof that the debt is my mothers which we are not disputing as such. what I am disputing is whether it is enforceable which would allow them to use their strong arm tactics and leave me, on behalf of my mother, very little bargaining power. My objective here is too keep the hounds at bay and try and bargian a reasonable repayment for my mother who is very frail at the moment. They have still to supply me with a CA and as far as I know that's a complete defence in a court of law so I guess my next move will be to take them to court and let a judge decide on its enforceability. I will certainly be letting the FO and TS this weekend but as I have just come in from work and wanted to get this reply posted I will welcome any pointer's, advice, observations etc

 

Thanks in advance

[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

[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

[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

[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

[shieldblaster]

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

[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.

[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

[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

[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

[shieldblaster]

Hi all

 

I have heard nothing at all from Metro Services so have decided to take HSBC to court and get the debt ruled unenforceable through lack of valid CA. I reckon have gained enough knowledge and confidence so far through this forum to at least get the ball rolling.

 

However......

 

I have put the following letter together just to see if HSBC will see the light and simply remove the default which I will be quite happy with, or would they rather I haul them in front of a judge. I don't hold out much hope of them complying but it allows me to keep digging them in the sides whilst I get my big guns prepared

 

Comments, obs, advice, criticisims are all gratefully received.

 

HSBC Bank

365 Chartwell Square

Southend on Sea

Essex

SS99 2UU

 

21 April 2008

 

Your Ref:

 

 

Without Prejudice

 

 

Dear Sir

 

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

 

On the 28 August 2007 I made a formal request for a true signed agreement for the above account under The Consumer Credit Act 1974 s.78(1).

As yet you have failed to comply with request, and as such the account entered default on the 13 September 2007.

 

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

 

"Sec 78(6) if the creditor under an agreement fails to comply with subsection (1) -(a) he is not entitled, whilst the default continues, to enforce the agreement

(b) if the default continues after one month he commits an offence.

 

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

• HSBC bank may not demand any payment on the account, nor am I obliged to offer any payment to you.
  
• HSBC Bank may not add further interest or any charges to the account.
  
• HSBC Bank may not pass the account to a third party.
  
• HSBC Bank may not register any information in respect of the account with any credit reference agency, including any alleged default.
  
• HSBC Bank may not issue a default notice related to the account.

That being the case the default entry that you have placed on my mother's credit record and passing the alleged debt to Metropolitan Services is illegal and constitutes a criminal offence.

 

In order to avoid further action I insist that you remove the default entry immediately and cease any further passing of my mother's personal data to a third party.

 

If you fail to do this then I will have no hesitation in starting a small claims procedure against you. You obviously are not in possession of any valid credit agreement which is a complete defense against enforcement and I will also be asking for the default to be removed as, since you have not complied with the Consumer Credit Act 1974, it follows that you are not entitled to benefit from that same Act by punishing and tarnishing my mother's previously unblemished record.

 

Also as part of the action I will be reclaiming any unlawful interest or penalty charges, damages, and any court expenses incurred.

 

 

Please take note that you have 14 days from receiving this letter to contact me to advise me that all my requests have been complied with.

 

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 simply remove the unlawful default rather than have a court order you to.

 

I would appreciate your due diligence in this matter.

 

I await your rapid response.

 

Yours Faithfully