j-dub Vs HSBC Gold card

[j-dub]

Ok, so last Tuesday (28th october) the following letter arrived at HSBC after I sent it recorded delivery...

 

Dear Sir/Madam

 

Account No: xxxxxxxxxxxxx

 

Under the Consumer Credit Act 1974

 

As per sections 77-79 of the above act, I hereby request a signed True Copy of the Original Executed Agreement for the above account number.

 

By law, you must comply with this request within 12 working days of having received it.

 

The statutory fee of £1.00 is required to be paid for this information, and I have enclosed a £1.00 Postal Order. (number xxxxxxxxxxxxxxxxx)

 

In responding to my request to supply a True Copy of the Original Executed Agreement, you must also provide any and all documents referred to in it. Where this may include Terms and Conditions as varied, I hereby specifically request a clearly readable and True Copy of the entire inception Terms and Conditions which form the original agreement, and all variations to them since.

 

Your obligations also extend to a signed statement of account.

 

I understand a copy of our credit agreement should be supplied within 12 working days.

 

I understand that under the Consumer Credit Act creditors are unable to neither enforce an agreement, increase any alleged indebtedness, nor disclose any information regarding me to any third part, until such time you fully comply with my request for a copy of the agreement under these sections of the Act.

 

If you are unable to supply a True Copy of the Original Executed Agreement and all documents therein (and specifically the inception Terms and Conditions), I would be grateful if you would confirm this in your response within the 12 working days allowed.

 

This communication has been sent Recorded Delivery so I can ensure compliance on these issues within the legislative timeframes.

 

I would appreciate your due diligence in this matter.

 

Yours Sincerely

[j-dub]

This morning (Thursday 6th November) I received the letter attached:

[j-dub]

(sorry about this being on 3 seperate posts... I'm not used to this kind of thing... )

 

Enclosed with that letter were my £1 postal order, my statement (signed by them) of what's currently owed on my card, a booklet titled "credit card agreement terms" with no date on it but which is copyrighted 2007, a completely blank copy of a credit card request form which has no date on it, but has a box on it about Morrisons marketing (which I'd have remembered if it was on the form I filled in!), a photocopied "credit card agreement terms" which shows a picture of a card valid from 01 until 03 on the front of it, but has no other dates on it at all, and a notice of changes document which is in effect from October 1st 2007...

 

Am I correct in thinking that they've not yet fully complied with my request above, as they've not sent me a copy of the original agreement?

 

Any help welcome please...:?

[Castlebest]

Hiya j-dub and welcome to the HSBC forum

 

I'm a bit rusty on exactly what they have to provide (and the banks are getting smarter, I think they are reading these posts too )

 

From memory they are allowed to provide "reconstructions" of what you would have signed... untill you get to court, under the CPR's (judges rules) they will have to produce the original signed agreement in court, not a copy... the actual document.

 

So really its a game of chicken... if your sure of your ground take it to court and force the issue with them.

 

I have also asked other people to have a look at your post just to make sure

 

pete

[johnnymitch]

Does any of this help pete?

 

 

Consumer Credit Act section 77

 

 

Consumer Credit Act section 77 - the time scales involved are:

12 days plus 2 before they are in default, then:

a further 30 days before thery are committing a statutory offence.

 

Here's the wording from the act;

 

(4) If the creditor under an agreement fails to comply with subsection (1)—

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

and

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

 

So after 14 days write and say they are not entitled, while the default continues, to enforce the agreement

 

And after a further 30 days write and confirm they are committing a statutory offence

====================================================================

Under section 78 (1) of the Consumer Credit Act -

A formal written request for any true copies of signed consumer credit agreements was sent to xxxxxx. via guaranteed delivery on the (date) (see attached document ) – to date they have not sent any copies of any Consumer Credit Agreements and have committed an offence under section 78 (1) of the Consumer Credit Act.

Also sent under section 78 (1) of the Consumer Credit Act A formal written request for any true copies of any signed Consumer Credit Agreements was sent to xxxxxxx. via guaranteed delivery on the (date) (see attached document ) to date they have not sent any copies of any Consumer Credit Agreements and have committed an offence under section 78 (1) of the Consumer Credit Act

I believe there are no properly executed signed Consumer Credit Agreements, If they had been able to supply these agreements then they would have done already to avoid committing an offence under section 78 (1) of the Consumer Credit Act

 

SECTION 78 (1) CONSUMER CREDIT ACT 1974 /

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

a) the state of the account, and

 

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

 

c) the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

The Consumer Credit Act in section 78(6) States that

(6) If the creditor under an agreement fails to comply with subsection (1)—

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

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

 

 

For the avoidance of doubt in this court the 2006 Consumer Credit Act does not change the above legislation……[/font]

Edited November 7, 2008 by johnnymitch
Phew ! sorting font marks - the width of this page is making it difficult LOL !

[johnnymitch]

Or ,there's this one from tom-term :

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/131982-basic-information-credit-agreement.html#post1387968

[j-dub]

Thanks Peeps... I'm somewhat scared by all this and am considering taking the documents to someone legal to get an opinion face to face...

 

The reason I think that it's unenforceable is that the gold card was given to me as an upgrade by way of apology for HSBC paying someone elses mortgage out of my account for 2 months, and I don't remember ever having filled in an agreement.

 

I certainly don't have one in my records, and I keep EVERYTHING to do with banking, even though I've recently got myself into large amounts of debt by ignoring/not reading letters and having buried my head in the sand...

 

My head is now firmly back above ground, and I'm attempting to turn my finances around and get back on-track..

. I've asked the banks (HSBC and Egg) for help with both my loans and cards (one of each with both) and neither want to give me any help at all, so I've no sympathy for them anymore and if I can get my cards nullified and zero'd then I'm quite happy to go on paying my loans and not having any credit cards for the rest of my life! They really are evil things...

[johnnymitch]

Hi j-dub - see my post on your other thread........

[j-dub]

Thanks johnnymitch, good reply there...

 

I'm unsure as to what to do next with this HSBC Gold card... True, they've sent me documentation about the account, and from what I can tell, most of the bits they need are in there, but it's not the copy I've signed as it's just a blank one... What do I do next? I'm 75% certain they don't have a signed one and just don't know what the next step is...

 

Anyone suggest a next step?

[Castlebest]

Hiya J-dub your next step really depends on what your intentions are .

 

A few lucky people with loans and credit card accounts have had their debt wiped clean because the bank screwed up their loan agreement. If there is only penalty charges left on your account then I would push it all the way together with a penalty charge claim because even if the bank has a legally binding agreement the balance of your debt is penalty charges which you can claim back without fear of getting a stay in court.

 

If you have a balance that includes money you have had and spent I would be very careful. The judge you get in court may well take the view you have had the money so you should pay it back and you may end up with court costs too:rolleyes:.

 

pete

[johnnymitch]

Thanks for your input on that pete....... I tried to tip your scales but I've got to spread it around a bit first ........ laffin!

 

There you go j-dub - it's really up to you to decide which route you want to take , weigh up the pros and cons before you make a final decision .

[j-dub]

Cheers guys... I think I'll leave this one as it's too risky for my liking...

[johnnymitch]

Discretion may be the better part of valour, j-dub - as pete said - if you get the wrong judge it could be costly .........

[rdm2006]

sorry to bring bad new but i think that i have seen on the dca forum that the offence after 30 days no longer applies.

 

you will probably get more help in this section

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/

[johnnymitch]

I think you may have posted this on the wrong thread RDM - it was Milly5 who asked about the 30 -day rule......

 

 

On http://www.consumeractiongroup.co.uk/forum/hsbc-bank/168330-mcs-threatening-letter.html

[j-dub]

As I was posting my letter to Egg telling them that their "agreement" isn't enforceable and therefore they can go and jump, I decided to have another look at my HSBC Gold card agreement form...

 

I've scanned it and it's below... Can some of you lovely people have a quick look through this lot, and see if you agree with me in the thought that this is also un-enforceable? The letter that came with it stated that:

 

Section 78 (1) of the Consumer Credit Act 1974 requires us to provide a copy of the Executed Agreement if any. Regulation 3 (2) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 allows that certain items may be omitted from such copies, including the signature box and signature.

Therefore, the copy of the Executed Agreement we must supply is a copy, but need not be a photocopy, of the signed Agreement. Regulation 7 of those regulations also requires us to provide a copy of the Executed Agreement, as varied, where there is a power to cary the Terms of the Agreement, which there is with your Card Agreement and that the power has been exercised to vary the Agreement, which again is the case with your Agreement.

 

We have, therefore, enclosed an up to date copy of the Terms applicable to your account, a copy of the latest Variation Notice issued in respect of your account and a blank copy of the Agreement Form. The Agreement Form contains the original Terms that you accepted when you entered into the Agreement. The section 8 highlighted gives the Bank the right to vary the Terms. The variation notice shows that the Terms are the appropriate information to produce.

 

Now, the "section 8" is on a separate document from the "agreement form", and the blank agreement form they've sent me has no signature on it (which they explain, as it's a blank one) but also has NO SPACE for my signature, or any space where a signature box could have been had they removed it. ALSO, there is no space for their signature, or any space where their signature box could have been had it been removed...

 

Am I barking up a dead tree here, or does this make this un-enforceable?

 

Sorry for the length of this post... I kinda got on a roll last night after sending the "get lost" letter to Egg...

 

[j-dub]

Having just read this lot to make sure it's readable on a screen, I've just noticed that there is no reference whatsoever to a credit limit... As per my Egg "agreement" this also makes it un-enforceable does it not?

[j-dub]

The following letter has just been sent recorded delivery...

 

Dear Sir/Madam,

 

I refer to your letter dated 3rd November 2008 (which I received on Thursday 6th November) in response to my CCA Request, which you received on Tuesday 28th October.

I have now been advised that the copy of the “agreement” document that you have provided me with does not comply with s61(1) of the CCA 1974 and the associated regulations and is therefore only enforceable by an order of the court by virtue of s65. However, since it does not have a term concerning the credit limit as required by Schedule 6 of the Consumer Credit (Agreements) Regulations 1983, the court would be prevented from granting such an order by virtue of s127(3).

Also, the Credit Agreement documents and terms and conditions you have provided me with have no signature anywhere on them, nor any place on the documents for a signature as there would be if you had decided to execute your right to remove signatures and their boxes from the requested documents. The only place for a signature on any of the documents you sent to me was on the Payment protection, which does not form part of any credit agreement. This either means that you do not have a signed credit agreement for this alleged debt, or you have not sent me a true copy of the signed credit agreement. Either way, you still have not discharged your obligations under the Consumer Credit Act 1974, in particular section 61, meaning that this alleged agreement is still under dispute and therefore you (HSBC bank PLC):

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

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

* may not pass the account to a third party.

* may not register any information in respect of the account with any credit reference agency.

* may not issue a default notice related to the account.

 

Should you fail to comply with this, I will not hesitate to contact trading standards, the office of fair trading and the financial ombudsman service.

I am now of the opinion that a court is precluded from enforcing this agreement by s127 (3) CCA1974 as it is improperly executed under s61 CCA 74, the consequences of improper execution are set out in section 65 CCA 1974 and s65 sets out that only a court can enforce an improperly executed agreement subject to certain qualifications, one of those is that the document is signed and contains all the prescribed terms. Now since this document does not contain any place for a signature relating to the prescribed terms, or any reference to a “credit limit”, s127 (3) CCA 1974 strictly prevents the court from enforcing this agreement.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit. If you cannot supply me with a document which complies with the Consumer Credit Act 1974 and ALL of the Regulations made under the Act, I shall be forced to make a complaint to Trading Standards and I will also draw this to the attention of the Office of Fair Trading.

 

I respectfully request you review this matter in light of my comments above and I request that you supply me the required information or alternatively confirm the account is closed and the debt written off with a zero balance.

 

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is again a formal complaint.

Yours Sincerely

J-DUB

[j-dub]

no answer as yet....

 

I'm about to pass this onto a company to deal with for me, who are also now dealing with my Egg credit card... £25 to confirm that it's un-enforceabe and then £170 to deal with all the legals it's a lot less hassle! The company I've gone with don't take any percentages at all, the £25 is the only payment to find if it's enforceable or not, and then if you decided to take it further, it's £170, so £195 maximum cost...

 

The were very impressed with how far I'd got on my own (with just the help from this forum;)) and the amount I knew about the CCA1974 and enforceable/un-enforceable loans...

 

Thank you to all who have helped with this... I'll keep reporting as to how this goes in this thread...

[dooglemire]

What is this company called? does anybody have any experience of these people?

[johnnymitch]

Sounds oK j-dub... but watch out for the small print .........

[j-dub]

What is this company called? does anybody have any experience of these people?

 

I seem to remember that CAG doesn't like people advertising external companies, and I respect that... If a CAG moderator says that it's OK for me to post up a link to their website, I will, but not until then on the public forum... (PMs aren't public though are they? ;-) )

 

The company advertises on one of the radio stations I work for, they have been checked out by our accounts department, and are part of a company which started just up the road from where I live, which I have known of for quite a while and know they're not a bunch of fly-by-nights....

 

In all honesty, I don't know anyone who has had any success with these people yet, as they seem to have only just started to advertise this "service", but having talked to them, they're switched on and answered all the questions (including some trick ones!) with answers that I would have expected from a company who actually know what they're doing... 8-)

 

Hell, after going this far on my own, I wouldn't put my finances in the hands of anyone who didn't inspire my trust and who I didn't think would do what I want them to... I've managed to screw up my finances enough so far, I'm doing my damnedest to undo the damage I've already done...

[dooglemire]

could you pm me the details please?

thanks

[j-dub]

Received a reply from HSBC on Saturday morning... Basically it doesn't deny that the agreement is un-enforcable, what it does say is that We're allowed to remove the signatures, and the boxes that they're in... but does not address the missing terms for "credit limit" in the document anywhere... It then gives me 8 weeks to do something about it before they consider the matter closed...

 

8 weeks? Well, lets see what this company I've put on the case can do before that's over then!

[j-dub]

just a quick update... The auditors have come back and said that this "agreement" has 11 (yes, ELEVEN!) serious breaches of the CCA'74 including errors in interest calculations, dates, addresses and lack of signatures... I'm currently claiming back the payment protection through the financial obudsman's scheme (free of charge!) and the credit card agreement is off to court shortly to get it made officially un-enforcable and written off....

 

HSBC have been rather quiet about it all... strangely...