HSBC default removal??

[hur575]

Hi everyone

 

I had an old current account with HSBC, in my credit file that is settled now. I opened the account and I didn’t use it, and I changed an address, and basically forgot to tell them, and also forgot that there was £5 a month account fee that I had to pay, because it was premium account, since I used my overdraft limit, I was withdrawn. The way I found out when I applied for a loan and got rejected then checked my file to see what was the problem?? To my shock that was recorded, I went immediately and paid everything I owed with the overdraft in full last year but this will stay in my record for 6 yrs?? Now do I have a right to get this default removed?? If so in what grounds, I have read a lot in the forum today but I am still confused.

 

 

Any advice I will greatly appreciate it

[Guest Old_andrew2018]

bump

[car2403]

Bank accounts are peculiar entities when it comes to defaults.

 

As you didn't have an overdraft agreement, but did go overdrawn, I do still think you can challenge this using the same process.

 

If you want to see what I mean, see my Barclays thread, here;

 

car2403 -v- Barclays Bank (Default removal) (Default removed )

 

This is the bit that should interest you, IMHO;

 

Quote:

There's no need for them to send you a Default Notice, as they would have outlined the process required to terminate the agreement when you took it out - that would have been that they would formally demand repayment within 7/14 days and would issue a Termination Notice if you didn't comply.

 

The issue is not whether they have a Termination Notice that was sent to you - that is easily recreated anyway and would be accepted by a Judge, sadly. The issue you need to press them on is whether they have an enforceable agreement. In order to be enforceable, they should have complied with the requirements of the Consumer Credit Act 1974.

 

Briefly, they won't have complied with the requirements of the Act under Part V, s.60/s.61, as that requires a correctly formatted, properly executed credit agreement.

 

What they will do is rely on a Determination made by the OFT under s.74. This allows them to enforce the debt, without an enforceable agreement under Part V, as it exempts overdrafts from those requirements.

 

The issue for the Bank, though, is that the OFT's Determination has "criteria" attached to it that they must comply with to benefit from it - if they don't comply with those criteria, they need an enforceable agreement. We already know they don't have one.

 

The criteria are;

 

The Determination (which is signed by the Director of Fair Trading) is made under section 74(3) of the Act. I set it out in full:

 

"1. Under the powers conferred upon me by s.74(3) and (3A) and s.133 of the Consumer Credit 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.

2. This Determination is made subject to the following conditions:-

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

(b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:

- of the credit limit, if any,

- of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended,

- of the procedure for terminating the agreement;

and this information shall be confirmed in writing.

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended

 

 

If they can't comply (or have evidence to show they complied) with the parts in red, the debt is unenforceable unless they can produce a correctly executed credit agreement

[Dileepan]

I ve sent out one against lloyds tsb today