HSBC CCA received what next?

[samcook1703]

I have recieved a copy of the CCA from HSBC which i have signed although there is no mention of APR or the amount of credit agreed, does this mean that this can be written off?

I am confused:confused:

 

I will try and get a copy of the agreement attached

[nufsaid]

Hiya yes it would be best to post a copy of what you have received on here for some of the guy's on here to take a looksie for you.

Don't forget to remove all personal info from anything you post.

Good luck

NS x

[samcook1703]

Ive got 4 pdfs of my agreement minus personal details, could you take a look, and advise what i can do next if anything?

hsbc lynn-1.pdf

hsbc lynn-2.pdf

hsbc lynn-3.pdf

hsbc lynn-4.pdf

[shieldblaster]

Hi

 

This to me looks like an application form and says as much on pdf 4. It contains none of the presribed terms that need to be included in a valid CA under the CCA 1974.

 

I would think you have good grounds for it being unenforceable imo

[samcook1703]

What's the next step?

[nufsaid]

bump for someone to looksie

[42man]

You might have to edit this....courtesy of PT2537

 

LETTER BEFORE ACTION

 

DO NOT IGNORE THIS LETTER

XX/XX/2007

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

 

 

 

I note that you are acting as agents to Barclaycard therefore I draw your attention to the facts below.

 

This account is in Dispute .

 

On xx/xx/2007 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

 

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

In addition to the above, I note you have recently sent me a Default Notice under S87 (1) Consumer Credit Act 1974. I am sure you are aware a Default Notice is needed before a creditor can terminate the agreement or demand repayment. However the default must be accurate and comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561). The document purporting to be a Statutory Default Notice does not comply with the requirements of regulation 2(2) SI 1983/1561 and schedule 2 of the same document for the following reasons

 

Firstly, the document does not state the name and postal address of the creditor. I note that your address is present; you are not the creditor under this agreement. Also the document does not sufficiently state the nature of the breach and term of the agreement, which has been breached. Also the statutory terms, which are required to be capitalized, are not

 

For example

 

“IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH ”

 

Or

 

“IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]”.

 

However on your Default Notice these statements are shown in lower case and therefore not in compliance with the Consumer credit Act 1974 or the regulations referred to above

 

Also the regulations require the Default Notice to contain a statement in the following form—

 

"IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS' ADVICE BUREAU".

 

This excerpt is taken from the SI 1983/1561 itself and clearly your copy of the Default Notice does not contain this required statement either. There is a body of case law, which has confirms that where a statutory default notice issued under section 87(1) not compliant with the Consumer Credit Act 1974 and the subsequent Regulations it does not allow a creditor to terminate the agreement or demand repayment etc. In addition your attention is drawn to the fact that Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful termination of contract which would not only prevent a court enforcing any alleged debt, but give me a counter claim for damages via the ruling in the case of Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

Therefore you would be rather foolish to attempt to add any adverse data to my credit file while this account is subject to a Serious Dispute

As it stands, the document supplied by Barclaycard is not a valid credit agreement nor is it enforceable by any court

 

 

What I Require

 

 

Firstly, I require all correspondence in writing from here on; any persistent attempts to contact me by phone will be reported to Trading Standards.

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days

 

I trust this out lines the situation

 

Regards

 

[samcook1703]

I have received a final demand from HSBC and no response from an edited version of the letter given by 42man. Do i need to respond or just wait for a response?

[samcook1703]

I have now received a response from HSBC stating that what I have received is a valid CCA (I have attached copies in earlier posts).

I am very confused, can i have some advice please?

[shieldblaster]

Any chance you can post the letter sam? I have a sneaky feeling it will go along the lines of the reply I received from them after they sent me an unenforceable CA.

 

Have you reported this to the Financial Ombudsman? and as in your letter the OFT and TS?

[samcook1703]

I have now received a default letter and do not know what to do, is there any letter that i need to send now i have received a default

as they have not complied with cca request?

[42man]

Unfortunately, they will carry on as if nothing has happened....you may have to argue this in court....however, it may be a good idea to request a copy of their official complaints procedure....they have complied with your request for your CCA, i.e. they have sent you what they have on you....

[samcook1703]

I have now recieved a claim letter from Northampton County Court.

I am really worried that they may have a claim and need some urgent advice as i have seven days to respond.

I have uploaded the agreement/application form which they have sent me but do not know what i have to do.

I obviously need to fill in the claim form with a defence as they are demanding £4191.23 from me and i do not have it.

What do i need to do!!

I really need some advice i am concerned about this

Sam

[pt2537]

hi there

 

can i ask what their particulars of claim are from the claim form? also who is the claimant and who are the solicitors

 

it would be good to get a picture of what we are dealing with

 

Regards

 

Paul

[samcook1703]

Particulars of claim

 

The claimants claim is for the balance outstanding under a credit card agreement.

The defendent has have failed to make payment of the arrears of instalments as required by the statutory default notice served by the claimant.

 

AND the claimant claims

 

1. 4191.23

2. Interest pursuant to section 69 of the count court act 1984 at a rate of 8.000% per annum from the date hereof at a daily rate of £0.92 to the date of judgement or sooner payment

 

Signed on behalf of the claimant (HSBC) DG SOLICITORS

[pt2537]

Particulars of claim

 

The claimants claim is for the balance outstanding under a credit card agreement.

The defendent has have failed to make payment of the arrears of instalments as required by the statutory default notice served by the claimant.

 

AND the claimant claims

 

1. 4191.23

2. Interest pursuant to section 69 of the count court act 1984 at a rate of 8.000% per annum from the date hereof at a daily rate of £0.92 to the date of judgement or sooner payment For solicitors they really dont know the law too well, they cannot claim statutory interest on a debt regulated by the Consumer Credit Act 1974

 

Signed on behalf of the claimant (HSBC) DG SOLICITORS

 

well these POCs are plain wrong

 

they are not entitled to stat interest for starters, its unlawful and they need to really file an amended claim setting out the facts correctly as what they have put there is just not sufficient

[samcook1703]

Thats good news!!!!

Whats the next step?

[pt2537]

I would file a defence, which we can come up with,

 

there is very little that you can do with that POCs, so they need to file a better copy or we ask for their case to be struck out. you will need to write to the solicitors as well but we can help you with that too

 

when do you need the defence filed by?

[samcook1703]

Thank you for your help, I have to reply by the 5th august '08.

Do i need to give you anymore info in order to come up with the defence?

Regards

 

sam

[pt2537]

HI there

 

have you acknowledged service ? you need to file an acknowledgment of service to give you more time to file the defence and obviously setting out your intention to defend

 

when did you recieve the claim form? and what is the date of issue on the top right hand corner

[samcook1703]

I am filing acknowledgement tomorrow.

Date in right hand corner is 24th July 2008 and i received it on the 25th July.

Sorry i am anxious about having to attend court, and to be honest i dont know what i am doing other than the agreement may be unenforceable (copies above in pdf format)

[samcook1703]

Received it on 25th july and it was sent on the 24th, acknowledgemtn of service is being done tomorrow

Sorry to keep on asking so many questions, I am anxious about going to court, i dont really know how this works other than we believe that the application form does not comply with the CCA as it is an application and not an agreement,

Can you guide me through this?

Sam

[slick132]

Hi SC,

 

I know it's stressful but you'll have to be patient about this. The AOS should be in around 8th August, so there's plenty of time and no need to rush.

 

We need to take time to see things are done correctly.

 

Pt is very busy but will help with your defence (which is required by about 23rd August).

 

While you're waiting, use your time to find similar threads to see how others are dealing with their cases.

[samcook1703]

Thanks will do, sorry

[samcook1703]

Hi there i have read many posts with most being successful which is good news!

I am now hoping that mine does the same.

Is there any news on the defence?