HSBC suspended repossession order

[rdm2006]

so sorry but this is quite a long and complicated story

 

in Jan 2004 I left my employer to find a new job, I knew that i had left voluntarily so i was not able to claim on my mortgage protection but went into the bank to ask if there was anything I needed to do.

 

However, in Aug 2004 my wife became ill and we put in a claim for her, this was refused stating that she was not on the policy. In Dec 2004 i got another job (with less pay) and we struggled so much that we were virtually forced to re-mortgage again in Jan 2005.

 

To cut a very long story short in Aug 2005. we had cause to complain to HSBC regarding another matter and in the complaint I mentioned that I should have been advised to change the policy in her name as she was the only one working. HSBC wrote to me saying that she was put on the policy in Oct 2002 when we re-mortgaged and that we should make a retrospective claim. We did this and with much discussion and deliberation between bank and underwriter (wife not on the policy - yes she was - no she wasn't) we were eventually told to call 1 person in particular and make a claim.

 

On the day that we were due to be paid out I rang the underwriter who advised me that it had been passed to a manager for authorisation and the manager had refused it due to my wife not being on the policy. After much more debate & deliberations we were eventually paid out.

 

We were paid less than half the amount it should have been due to the fact that HSBC (in its infinate wisdom) had actually reduced our cover in Oct 2002 when they attempted to increase it because of the remortgage.

 

Again after much denial from HSBC and accusations that we had ourselves reduced the cover (on the very same day that we had taken out a remortgage - yeah right), Fortunately i had written to the underwriter to ask who had made this amendment and they had replied (on HSBC headed paper) that the request was made by the bank itself, so with a HUH SORRY we were paid out the remaining amount by the bank itself in Jan 2006 (and the bank charges they had made on my account £1270.00 for the pleasure of their cock up were refunded) and (as they were feeling really generous) they offered us £100 in compensation saying that we had only suffered inconvenience and that they had put us back in a position we would have been in had they not made a mistake.

 

I was furious at such an offer and told them to "shove it" and wrote a letter of complaint to the FOS saying that as they had charged me £1270.00 when they thought that the error was mine I was claiming £1270.00 now that they had admitted that it was their fault. FOS unfortunately ruled in their favour (although to me this proves how the term allowing them to make charges is unfair as it only allows the bank to apply them).

 

I dont know why I did it but I wrote to FOS asking for a copy of all the correspondance between them and the bank. When I received all the paper work I found a "computer note" from one bank employee to another stating that my wife and I were "Habitual Over spenders".

 

Although this also made me very angry i was reclaiming my bank charges for the past 6 years so did nothing about it immediately.

 

now whilst all this was going on we were not able to pay all our bills and were being chased by all and sundry (including hsbc for a credit card) and as if that wasn't enough in Nov 2004 my mother died followed by my father-in-laws dog in April 2005, my mother in law in June 2005, our cat in Jan 2006 and my father in law June 2006.

 

This caused me to be off with stress for 7 months starting in Feb 2006 and what did I find? yes youve guessed it I still couldn't claim the full amount of mortgage protection as the bank had not corrected it despite them telling the ombudsman that they had put me in a position I would have been in had they not made the mistake.

 

I wrote to the bank saying that they had not corrected their error as they said they would and they wrote back to me stating that they had corrected it in Jan 2005 (the very day I had been forced to remortgage )

 

To cut another long story short I ended up filing a court claim for the shortfall between the amount I could claim and the amound I should have been able to claim. They put in a defense for this which was a laugh because their own witness stated that the increase in Jan 2005 was due to the remortgage.

I pointed out to them that their own witness was contradicting their claim that this increase was a correction and they decided to go to court regardless (is this an abuse of the court process?).

On the day before we were due to go to court they rang me at work and settled.

 

In 2007 I pulled a muscle in my back removing my old kitchen to make way for a new one and was again off work for 2 months when I returned to work my employer put me on disciplinatry action due to the time I had taken off work (7 months plus 2 months and a few odd days in between) I got so fed up with it that I eventually left in Feb 2008.

 

This time I was unable to make mortgage repayments and got into arrears from Feb to Aug 2008 when I got a new job. I made an offer to repay the arrears over the life of the shortest mortgage we have and the bank agreed but are taking us to court for a suspended repossession order.

 

Also I S.A.R'd - (Subject Access Request) HSBC due to the "Habitual Overspenders" note in Feb but although I have rec'd a load of paperwork this was not in it. Despite advising them that I have already seen it when it was provided by FOS they have still not sent me a copy. (The FOS copy was destroyed when my kitchen was replaced). I told them that I would take them to court if I had to and I rec'd a letter threatening me that they would push for court charges if I lost as sending this to FOS may not be classed as publishing that statement.

 

Now I would like to put together a case to refuse this suspended repo order using all of the above (and a counter claim for damages and/or a claim that the remortgage in Jan 2005 should be voidable) if I can. how would I go about this?

Edited October 12, 2008 by rdm2006

[citizenB]

just bumping your thread for you.

[TUTTSI]

Hi RDM,

 

Although I am not up on all the chenagagans of your HSBC Mortgage. What I do know (speaking from experience) there is the Cheltenham & Gloucester v Norgan well known court case where you could try and get the remaining outstanding arrears spread over the remaining term of your mortgage. It may not though stop them obtaining a suspended mortgage order, thus ensuring that that you keep up the repayments.

 

My suggestionnis that you go to the Citizens Advice or a law centre when they offer free advice to write on your behalf to get this matter sorted.

 

All the best

 

Tuttsi

[rdm2006]

thank you both

[rdm2006]

The thing that really gets my goat is that i have recently started a mis-sold claim for my critical illness cover. they have sent me what they call a Confidential Questionnaire which clearly shows that my wife should have been on the policy on Oct 2002 and that the Mortgage protection should have been increased - so after all the denials and investigations and accusing me of making the error - they had all the information they needed in this questionnaire. amazing how they wre able to find it when they thought they could use it against me wasn't it.

[citizenB]

That's the HSBC, we all know and love.

[rdm2006]

OK here we go.

 

despite saying that they are asking for a suspended repossession order i have today received copies of court forms for repossession and a hearing of 18th november. sent by shoosmiths

 

looks like they have re-used their poc from the 7th Aug when shoosmiths (or is it sh1tsmiths) sent us court forms saying We enclose a copy of the documents sent to the court TODAY". Which they obviousley didn't as the copies of court forms received today are dated 3rd october.

[OLIVE.FAMILY]

Hi there. To get a suspended repo they will go to the courts. This mean sthen that if you do not keep tp your word then they just neeed to get straight for a reposession. You will need to attend this hearing. Ell-enn will be able to help you with the forms.

[42man]

Moving to the Reposessions forum....

[TUTTSI]

OK here we go.

 

despite saying that they are asking for a suspended repossession order i have today received copies of court forms for repossession and a hearing of 18th november. sent by shoosmiths

 

looks like they have re-used their poc from the 7th Aug when shoosmiths (or is it sh1tsmiths) sent us court forms saying We enclose a copy of the documents sent to the court TODAY". Which they obviousley didn't as the copies of court forms received today are dated 3rd october.

 

Hi RDM,

 

Firstly, did you go to citizen advice or free Law centre as I had previously had suggested, as if you did not, you really need to get some help imediately.

 

How much in arrears are you!

 

Have you tried to make an offer to pay back the arrears! using the Cheltenham and Gloucester v Norgan case. You can offer using this case to pay back over the remaining years of the mortgage.

 

Have you got it in writing where they advised that they were going for a suspended possession order and have you been in touch with them at all!

 

If you are still suffering hardship, have you any bank charge claims that can be claimed for under the FSA financial hardship rules!

 

Tuttsi xx

[rdm2006]

yes i have been in contact with the bank and made arrangements to pay the arrears over the life of the shortest mortgage, I have made enquiries at the law place and i qualify for legal help, but i still need to go and see someone. I do have a letter from hsbc & from shoosmiths to say that they will be going for a susp repo but that is not what they are doing by the looks of it.

[TUTTSI]

yes i have been in contact with the bank and made arrangements to pay the arrears over the life of the shortest mortgage, I have made enquiries at the law place and i qualify for legal help, but i still need to go and see someone. I do have a letter from hsbc & from shoosmiths to say that they will be going for a susp repo but that is not what they are doing by the looks of it.

 

 

Did they accept your proposed payment plan!

 

In our case our lender accepted the payment plan but still went the route of the suspended respossession.

 

When you go to the law centre take the letters with you as well as the court papers.

 

Is it possible you could post up what you have from the courts,HSBC and Shoesmiths, obviously taking out your personal info.

 

Tuttsi

[rdm2006]

hi i will try and post these up later tonight when prying eyes are asleep

[rdm2006]

OK having problems scanning the court forms as all i have so far are the copies sent to me by shoosmiths but below is the main body of the hsbc letter

 

 

Further to your recent telephone conversation with my colleague, xxxxx, we write to confirm our acceptance to your offer of resuming standard monthly repayments to your above loan, together with additional payments of £47.74 in respect of arrears, commencing 2 October 2008 and monthly thereafter until such time as the arrears are repaid.

Given that monthly repayments under previous agreements have been missed, we now require having this agreement supported by a Suspended Possession Order. Please note that to obtain a Suspended Possession Order, the Bank will need to instruct Solicitors to commence possession proceedings and you will therefore be hearing from Shoosmiths Solicitors.

 

the Shoosmiths letter just confirms this but i cant put my hands on it right now.

Yours sincerely

Dont know why they say prev agreements have been missed as i have not made any previous agreements??? other than the original mortgage

[rdm2006]

I am going to CPR shoosmiths for the following just in case it is needed by whoever when I see a solicitor. Does it look OK

 

Dear Sir/Madam

REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

 

1. Copies of ALL correspondence (in any form i.e. letters or emails etc.) and transcripts of all calls between myself and Mr A, Mr B, Mr C and Mr D (HSBC Director). Regarding HSBC,s failure to pay Mortgage Protection Benefits to my wife.

2. Copies of ALL Subject Access Requests (in any form)

3. A copy of a note between internal departments where my wife and myself have been referred to as “Habitual Overspenders” (which your client published to the Financial Ombudsman but has so far failed to supply to me, despite the above Subject Access Requests)

4. A copy transcript of my telephone conversation between myself and Mr E on the 17th March 2008 where Mr E agreed that I was not able to make an “INFORMED” decision regarding the sale of Critical Illness Cover.

5. Copies of letters, witness statements and transcripts of calls made from and to D G Solicitors and your client regarding my court claim for outstanding Mortgage Protection Benefit payments.

6. Any documents you seek to rely on in court which have not already been supplied.

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

[TUTTSI]

OK having problems scanning the court forms as all i have so far are the copies sent to me by shoosmiths but below is the main body of the hsbc letter

 

 

Dont know why they say prev agreements have been missed as i have not made any previous agreements??? other than the original mortgage

 

Well according to your posting it looks like they are going for a suspended possession order. This is the same as what we currently have with our lender. This means that if ONE payment is missed they will just swoop straight in on a repossession.

 

You could have also asked them for all recordings/transcripts/letters etc where you had previously made an arrangment and evidence of where it failed.

 

IMHO, I think you have made a good move with your request letter under the CPR rules and you should seek that legal help ASAP just in case they pull a fast one. As this is in a form of a SAR you have to send the £10 fee.

 

Tuttsi xx

Edited October 7, 2008 by TUTTSI
additions

[rdm2006]

Hi tuttsi their letters say one thing but the court docs say another:rolleyes:.

spoke to consumer legal advise today and they say i am entitled to legal aid just waiting for an advisor to call back

[rdm2006]

Hello all.

 

couple of questions

1 is there a time limit for returning the courts defence form ?

2 if i want to make a counter claim do i do it on this form or do i have do have to get another form?

[rdm2006]

does this sound ok?

 

We, Mr & Mrs rdm2006 do hereby state that we do not believe that our level of arrears is not the same as HSBC are contending, and refer to our complaint of mis-sold Critical Illness Cover currently being investigated by the Financial Ombudsman Service, of which, HSBC are fully aware.

In addition to the above I would like to make a counter claim that in 2004 HSBC failed to pay a claim made on our Mortgage Protection Policy which they have already admitted to in their letter dated 12th January 2006 signed by Mr David Lewis (Head of Customer Relations) - appendix B. I, respectfully, request that the court consider that this action left us unable to pay our way with credit cards etc and has thus, constructively, destroyed our credit file.

I have recently discovered on the internet a case (not too dissimilar from my own case) Richard Durkin V DGS Retail & HFC Bank (Appendix C) where a figure of £8000.00 was paid as damages for a “General Loss to Credit”. Should the court consider this award to be appropriate then this would more than cover any arrears I may have accumulated should the Ombudsman’s complaint be unsuccessful.

I would also like to state that I consider this court action to be vexatious of HSBC as stated earlier they are fully aware of the FOS case and an agreement to pay off the alleged arrears and as such there was no need to bring this to court. I would therefore respectfully request that their request for a (suspended) repossession order should be denied and that all charges caused by this action should be absorbed by the bank and not passed on to my mortgage accounts.

 

and this is the case i base my argument on.

 

Richard Durkin

 

against

 

DGS Retail and HFC Bank

1. Counsel for the pursuer submitted that in addition to the actual losses which he had sustained the pursuer had suffered a general loss to credit along the lines recognised in King v British Linen & Co (1899) 1F 928 and Wilson v United Counties Bank Limited. [1920] AC 102. He submitted that this general loss to credit sounded in damages over and above any actual damages which the pursuer may, as he had done here, sustained. Counsel for the second defender submitted that any award for damages to credit was circumscribed or limited by the actual damages sustained.

 

2. The case of King v British Linen & Co dealt with the situation where there had been no specific damage. The only loss which the pursuer had occurred sustained was the loss to his credit standing. That was valued by the sheriff at £100 in 1897, a figure which was not interfered with in the Inner House. It is clear that the reason that the Inner House did not consider it appropriate to interfere with it was because they were dealing with a case where, in the words of Lord Kinnear, "No exact measure" of damages could be fixed. The case is clear authority to the effect that award of damages can be made for simple injury to credit although no actual loss is sustained. It is not, in my opinion, authority for the proposition where injury to credit causes actual loss or damage the fact of the injury itself warrants an award over and above the actual losses.

 

3. Wilson v United Counties Bank Limited was a case brought by an individual (Wilson) and his trustee in bankruptcy against Wilson's bank. The defenders' negligent handling of the plaintiff's estate whilst he was away on military service caused an actual loss to the estate, and also resulted in the pursuer, Wilson being made bankrupt. The trustee in bankruptcy was held entitled to recover actual losses caused by the negligent management. There was only one claim in respect of damage to credit, namely the fact that Wilson was made bankrupt when, had the defenders managed his affairs prudently, he would not have been. There was no claim that Wilson had suffered any specific loss to his credit by virtue of the bankruptcy, but the fact of bankruptcy was recognised as a serious injury to his general credit standing. This resulted in an award in 1919 of £7,500. The case, as was also the case with King v British Linen, was based on breach of contract and not negligence. The Lord Chancellor, Lord Birkenhead, said of the type of case where a banker, though his customer's account is in funds, nevertheless dishonours the customer's cheque, that the refusal to meet the cheque is so obviously injurious to the credit of a trader that the latter can recover without allegation of special damage reasonable compensation for the injury done to his credit. He applied that principle to the circumstances of Wilson's case where a defendant had expressly contracted to sustain the financial credit of a trading customer and breached that obligation. At page 120, Viscount Findlay said that the fact of bankruptcy must injure the credit of the person made bankrupt, apart from damage to the estate. He continued "In an action for negligence against a solicitor leading to the bankruptcy of his client even if due to fortuitous circumstances the estate had not been damaged, it seems on principle that the jury might give substantial damages for injury to the credit of the person made bankrupt." Later on he said "It was urged that proof must be given of special damage in order to sustain the verdict on this head for more than nominal damages. I cannot see on what principal this contention rests. The mere fact of bankruptcy imports damage to the credit of the bankrupt. It is a natural consequence, and it is for the jury to assess the damages for such a slur."

 

4. Had there been no finding of specific loss in this case, I would have had no hesitation in finding that an award of damages for the mere injury to credit was appropriate. In modern society credit plays a very big part in the conduct of the daily lives of a significant portion of the population. The financial services industry is constantly advertising loans, credit cards, store cards, mortgages, consolidation accounts etc. To have one's credit worthiness impugned so that one is at risk of being unable to obtain credit on the grounds that he is not credit worthy is, if anything, a more significant matter for the individual than it would have been at the time of King, over a hundred years ago. Mr Beynon has submitted that a figure of £10,000 would be appropriate. The figure of £100 awarded by the sheriff and left standing by the Inner House in King v British Linen translates, according to the Office of National Statistics Publication "Focus on consumer price indices" 2008, table 5/3, to £9,975 in the year 2008. The figure of £5,500 awarded to an individual in Kpohraror v WoolwichBuilding Society 1996 4All ER 119 was not interfered with by the Court of Appeal in 1996 and, in today's figures, would be worth £8,215.

 

5. Kpohraror confirmed that such damages were available to individuals who were not traders. In that case a cheque was dishonoured and then the matter put right within 24 hours. Also in that case the plaintiff claimed both special damages and the general damages of £5,500. Lord Justice Evans said at page 124 "The credit rating of individuals is as important for their personal transactions, including mortgages and hire purchase as well as banking facilities, as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in holding that what is in effect a presumption of some damage arises in every case in so far as this is a presumption of fact."

 

6. Evans LJ went on to consider the issue of special damages separately. There is, however, nothing in the judgment of Evans LJ to indicate that had the special damages claim been made out he would not have made an award in terms of the general damage claim. Lord Justice Waite and Sir John May each agreed in all respects with the judgment of Lord Justice Evans

 

7. The cases of Kpohraror, King and Wilson were all based on contract but it does not seem to me that there is any difference in principle between the nature of damages to be awarded in respect of a loss of credit brought about by a breach of contract, and one brought about by negligent misrepresentation.

 

8. In these circumstances and standing such a recent decision where the claims appear to have been treated as being capable of existing together, I find that the pursuer is entitled to an award for the general damage to his credit in addition to an award in respect of the actual loss flowed sustained. Having regard to all the circumstances I consider that an appropriate award would be £8,000.

 

Mitigation of loss.

9. The only case on record for the second defenders on the question of mitigation of loss is that the pursuer did not call upon the defenders to correct the entries that related to the pursuer's account with them. I am satisfied that he did this on many occasions. In his words he "pleaded` with them". The pursuer was cross examined about his failure to utilise the somewhat tortuous statutory notification procedures which were said to be open to him to have the registers changed. There was no evidence led to indicate how these matters were dealt with in practice, how long they took to reach a final conclusion or the likelihood of the pursuer being successful in utilising them. Given the total absence of record for the point and the lack of any evidence concerning it I disregard it. I am in any event quite satisfied that the pursuer believed he had done all he could do to get the registers corrected.

 

 

[citizenB]

This looks pretty good to me. I have asked someone to look in and confirm for you.

[steven4064]

Hi rmd

 

I have a couple of comments:

We, Mr & Mrs rdm2006 do hereby state that we do not believe that our level of arrears is not the same as HSBC are contending, ...

I think there are too many 'nots' in that sentence.

...destroyed our credit file.

I think credit rating would be better

I have recently discovered on the internet a case (not too dissimilar from my own case) Richard Durkin V DGS Retail & HFC Bank (Appendix C) ...

This case is very interesting but it is a Scottish sheriff's court case. This gives you two problems: it does not constitute a precedent because it was in the sheriff's court, and, the fact that it was in Scotland makes it less useful in England. There is no problem in referiing to it but I thnik you shoul dmake it clear you are referring to it as guidance rather than as a precedent.

[rdm2006]

ok does this sound better ?

 

We, Mr & Mrs rdm2006 do hereby state that we do not believe that our level of arrears is the same as HSBC are contending, and refer to our complaint of mis-sold Critical Illness Cover currently being investigated by the Financial Ombudsman Service, of which, HSBC are fully aware.

In addition to the above I would like to make a counter claim that in 2004 HSBC failed to pay a claim made on our Mortgage Protection Policy which they have already admitted to in their letter dated 12th January 2006 signed by Mr David Lewis (Head of Customer Relations) - appendix B. I, respectfully, request that the court consider that this action left us unable to pay our way with credit cards etc and has thus, constructively, destroyed our credit rating.

I have recently discovered on the internet a case (not too dissimilar from my own case) Richard Durkin V DGS Retail & HFC Bank (Appendix C) where a figure of £8000.00 was paid as damages for a “General Loss to Credit” and refer to this as guidance. Should the court consider this award to be appropriate then this would more than cover any arrears I may have accumulated should the Ombudsman’s complaint be unsuccessful.

I would also like to state that I consider this court action to be vexatious of HSBC (as stated earlier they are fully aware of the FOS case and an agreement to pay off the alleged arrears is already in place) as there is no need to bring this to court. I would therefore respectfully ask that their request for a (suspended) repossession order should be denied and that all charges caused by this action should be absorbed by the bank and not passed on to my mortgage accounts.

[steven4064]

That sounds better

[rdm2006]

are there any english cases ?

[steven4064]

I'm afraid I don't know. The importance of Durkin v HBOS is in the amount awarded and the reason behind it. It shows a judge (well a sheriff) really taking seriously what the consequeneces of a damaged credit reputation are. The fact that Durkin could quantify it helped too. I think we can take the example in calculating the effects of lost creditworthiness.