ihpj vs. HFC Bank (Marbles.com) - My Contribution

[ihpj]

QUESTION/ADVICE:

 

What is the concensus of opinnion as to what should I do next please?

 

I am flitting between writing and advising them that as they are in default [of myCCA request] the account is in dispute and any application of charges and interest is unlawful; and approach local Trading Standards/FoS and lodge their breach.

 

Or should I just sit and wait for the 'nasty' letters to land on my mat? I am confident that I can (with the help and advice from folk here) deal with any DCA that might be unfortunate enough to enter the fray - however I feel as if I should be doing something?

[phatram]

Hi, I will get back to you in a few days.

They are probably all off work anyway!

[jaystar2020]

Hi ihpj,

...well, you've commenced the battle, you will have to wait for the enemy to step up.

 

You borrowed £9k, I'm sure they'll be in touch!

 

J2020

[traceyb918]

ihpj, I've been getting a couple for calls a day from them I just hang up, I'm going to sent them another account in dispute letter (i think) just to remind them. Ive also not had a dec stmt, but I did get a letter this morning not a nasty one surprisingly enough:

 

It read:

 

We cannot understand why your account is still in arrears. If you are experiencing a problem that is prevnting you from paying what is owing would you please call us. We may be able to help.

 

Strange no threats!!!!!

 

Tracey

[ihpj]

** UPDATE ACTION **

 

Seeing as I've not yet spoken with these people, I felt rather generous and fielded a call from them in the last 10MINs.

 

First off spoke to the call maker and asked him to confirm if he was recording the call, to which he replied that all calls were recorded, and I indicated that I too was recording the conversation (which I wasn't really). We didn't even clear any security TBH (not that I am bothered) and I calmly explained to him that I had made a CCA request on 14/11 and that had not been met and thus they were in default etc. etc. - he listened, stammered and then passed me onto his 'Supervisor'.

 

I again queried with the Sup. if this call was being recorded, and he too said that all calls were recorded and I indicated that I was recording this conversation (not really!). Lovely chap, I explained the situation and he apparently had access to some correspondence sent/received records on his system. He confirmed a request was received on 18/11 and replied to on 02/12 (all dates correct) and enquired why I was not satisfied. I explained to him the for them to provide a copy of a properly executed agreement and the document they had supplied was merely a copy of the priority application - and as such lacked the prescribed information and directed them back to the CCA.

 

He listened to what I had to say, but held firm, that what they had provided was correct and if after three months the account was still in overdue the matter would be passed onwards to Legal.

 

I reminded him that as they were in default, they were not (amongst other things) obliged to seek enforcement of this debt and apply charges etc. etc. however if they were to provide the correct docuemnts then I would be more than happy to mresume payments. But until the default continued they could not expect me to abide by the agreement if they themselves do not adhere to it. In reply, he simply reiterated the 3 month thing. I then advised that should HFC contact me again by phone, I would consider it harassment as I had made my position clear. Howwever if they felt the need to contact, then to do so in writing, which I would reply to.

 

I finished the conversation by thanking him for the call, advising him to put the recording aside as I would be referring to it in future and ended the call (note: I didn’t hang up on him).

[ihpj]

Battlelines have been drawn!

 

3 months appears to be the period when the matter gets passed from Collections (in India) to Legal. In about a weeks time the January payment will not go forward, so that will be the second month of default, and I am ready for their snotty letters. I will reply professionally and calmly to their unenforceable threats - maybe even get to tangle with a DCA (or three!).

 

Bring IT!

[ihpj]

It is my intention to send the following letter to the FoS in the face of HFC looking to enforce this debt. - as ever, I do not take credit for this letter as I have read submissions on other threads on this forum - so have read them and cobbled mine together. Any advice and suggestions appreciated!

 

----------

 

Office of Fair Trading,

OFT Enquiries,

Fleetbank House,

2-6 Salisbury Square,

LONDON.

EC4Y 8JX

 

Monday 5 January 2009

 

 

Dear Office of Fair Trading,

 

RE: Failure by HFC Bank (Marbles.com) under Consumer Credit Act 1974 s(77)/(78 )

 

On Friday 14 November 2008, I wrote to HFC Bank (Marbles.com) asking them for a true copy of my executed agreement in relation to my credit card that I have held with them since February 2000. I exercised my rights under the Consumer Credit Act 1974, specifically under s(77)/(78 ), and included a postal order for the statutory fee of £1.00.

 

I received a reply from HFC Bank (Marbles.com) dated 2nd December 2008 in which they enclosed a covering letter and a copy of my priority credit card application. I wrote back to them (Thursday 4 December 2008 ) advising that that Consumer Credit Act s(60)(1) and s(61)(1) are very clear in their description of what does conform – and the priority application is just that – an application – and does not contain the required prescribed terms as specifically laid out under these sections. I therefore advised them that I was holding them in default and refuting the debt, further advising them that any legal action proposed by them will be vigorously defended as I believe that they may have committed an offence under the Consumer Credit Act 1974, punishable by a Level 4 fine.

The failure of HFC Bank (Marbles.com) to correctly comply with my lawful request has led me to only one conclusion that no signed credit agreement exists for this account. An agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable, even in a court of law.

 

I have since noted that they have issued default sum notices in relation to my account and in my telephone conversation with their Collections Dept. of Friday 2nd January 2009, I queried their actions, but they advised they believe they have complied with their obligations and they informed me the account is therefore not in dispute and they will continue to charge interest and collect payments.

 

I respectfully request your assistance in this matter, namely in seeking compliance of HFC Bank (Marbles.com) in providing the correct information I requested and also perhaps investigating their wilful disregard for the Consumer Credit Act 1974 in seeking to enforce a debt while an account is in dispute.

 

For your convenience, I attach copies of all correspondence.

 

 

Yours faithfully,

 

 

[END LETTER]

[traceyb918]

Good Letter!

[PriorityOne]

They know that they haven't sent you a properly executed Agreement... I went through this with HFC some time ago myself. They eventally sold the account on to Cabot.... .... who still write to me from time to time to let me know the "original creditor" is still looking for it.

 

I've yet to see an enforceable Marbles CCA on here....

[ihpj]

** UPDATE/ACTION **

 

Have posted the OFT letter, with copies of supporting information, this morning. Sent it 1st class only as I didn't see any point in using Recorded. Am confident it'll get there and they will respond sometime soon - altho' looking at my actions against NatWest and Citi I am sure I will have to wrtie to the OFT on each of those situations too!

[ihpj]

** UPDATE/ACTION**

 

I received the following letter from HFC ( http://www.frontiers.plus.com/hfc3.jpg ). And feeling rather smug, this is the response I want to send back to them:

 

----------

 

HFC Bank (Marbles Credit Card),

Collections Correspondence,

PO BOX 1520,

BIRMINGHAM.

B1 3PR.

 

 

I DO NOT ACKNOWLEDGE

ANY DEBT TO YOUR COMPANY

 

Dear Sir/Madam,

Re: Credit Card Acct. # [NUMBER] / Your Ref.: [THEIR REF]

 

I write with regards to your letter dated 23rd December 2008 and my telephone conversation of 2nd January 2009 with representatives from ‘Collections’, that I have been assured was recorded by you.

 

In reply, I direct you again to my correspondence of 4th December 2008, and feel I should inform you that I have today written to the Office of Fair Trading inviting them to investigate not only your continued default but also disregard of the Consumer Credit Act in seeking to levy penalty charges and interest whilst we remain in dispute. Section(78 )(6) of this act is very clear:

 

If the creditor fails to comply with Subsection (1)

 

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

 

Consequently, while we remain in dispute:

• You may not demand any payment on this account, nor am I obliged to offer any payment to you.

• You may not add any further interest or charges to this account.

• You may not pass this account to any third party.

• You may not register any information in respect of this account with any of the credit reference agencies.

• You may not issue a default notice related to this account.

 

…and the Consumer Credit Act is clear that a default can only be issued for breach of a valid, regulated agreement. If there is no regulated agreement, as appears to be the case, then you cannot issue a default as I have not breached any valid, regulated agreement.

 

Should you be kind enough to forward to me a copy of the correctly executed agreement, containing all of the prescribed terms and it be legible, then I shall resume payments to you. It is wholly unfair that you hold me to account under the terms of the Consumer Credit Act, whilst you yourselves chose to ignore your duties and obligations.

 

I trust this clarifies my position.

 

Yours faithfully,

 

[PRINTED NAME]

 

Kindly note that I may record calls from you for record keeping purposes and for avoidance of confusion/doubt.

 

---------

 

Now I do not believe in making their life easier by enclosing copies of my previous correspondence etc. as I know they recieved it - evidenced not by the Recorded mail I used to send it. So if they want to know what was said, then elt them do the work. Why should I be giving them ammunition to use agaisnt me?

 

I hope to send the above letter out tomorrow morning. Any observations/comments etc. all welcome

Edited January 6, 2009 by ihpj
Inserting working URL

[ihpj]

** UPDATE/ACTION **

 

Go but by The Grace of God, I have sent the above to them this morning.

[fedup74]

Go for it ihpj good on you:)

[birchave0]

Dear All,

 

I have joined your ranks after some Google'ing and idle web surfing. Have spent the last few weeks lurking on the forum - reading up on people's experiences and doing my own homework before deciding to get stuck in!

 

However, before I start my own thread, I would like to say that I would in no way know my way around the CCA and be aware of these issues if not for The Gurus helping out and other people sharing their own experiences. So, in true homage: I am not worthy! I am not worthy! I am not worthy!

 

So, this is my story and how I have taken on HFC Bank / Marbles Credit Card. I hope by posting here not only shall I benefit from input but also encourage others to take the same journey on...

 

 

Background:

 

Been a Marbles Credit Card Customer since 02/2000 - never missed a payment, never late, always paid on time and used account responsibly. Currently have circa £9k owing on this account. Have NO isues with DCAs/CCJ/default EVER - but I have decided to take them on [with your help!] ...

 

Hi there, sorry to butt in here, but as a Marbles customer myself I am a bit confused why you have an issue with marbles???

 

If you have used your account responsibly, have not incurred default charges, do not have an issue with PPI, why are you now taking them on? On what grounds?

 

If you have 9k on your account surely this is made up from purchases and transactions you have made? Not unlawful charges?

 

If you have complained to the FOS what reason have you given them for your complaint?

 

I may be completely missing the point here, so if I'm missing the obvious please tell me

[jaystar2020]

Quite, Birchave0...???

However, have commented elsewhere the Law is an ass, no good or bad, etc, thus here we is, de jure.

 

ihpj, is that all you have received, the 2 x .jpg's posted. There really is no reference to t's and c's, and it clearly states the application is to help them decide whether to enter into any agreement...

Did the card itself arrive with any t's and c's? Did you sign something to accept the card?

Did they not reply to your CCA with any t's and c's?

J2020

[ihpj]

Hi there, sorry to butt in here, but as a Marbles customer myself I am a bit confused why you have an issue with marbles???

 

I may be completely missing the point here, so if I'm missing the obvious please tell me

 

No problem mate. I guess the best way I can answer your question by using the information in your own signature, specifically the one showing as:

 

23-9-07 Goldfish 8k balance written off, £2300 PPI + charges returned, no agreement

 

Hope that helps? Many thanks though for your interest my thread

[ihpj]

ihpj, is that all you have received, the 2 x .jpg's posted. There really is no reference to t's and c's, and it clearly states the application is to help them decide whether to enter into any agreement...

Did the card itself arrive with any t's and c's? Did you sign something to accept the card?

Did they not reply to your CCA with any t's and c's?

J2020

 

Mate thats all I got [in reply] from them. Shocking I guess, but at least they responded to my request in some way - unlike Citi and NatWest who haven't even acknowledged my CCA requests.

[birchave0]

No problem mate. I guess the best way I can answer your question by using the information in your own signature, specifically the one showing as:

 

23-9-07 Goldfish 8k balance written off, £2300 PPI + charges returned, no agreement

 

Hope that helps? Many thanks though for your interest my thread

 

My argument with Goldfish was the PPI on the account that I never asked for, they refused to return the payments or the charges on the account, I threatened them with court action, they backed down and refunded SOME of my payment/Charges. It was their choice to close the account and write off the balance, I never started my battle with that being my sole goal or intention. Fair enough they wrote the balnce off, but I didn't get all of my PPI payments back.

 

They did not have a credit agreement for the account, therefore they had no evidence that the PPI was ever requested or indeed existed at all, I never claimed and they had no details of any policy.

 

A word of warning, Marbles are a nasty bunch, stop paying without a valid reason and they will have you defaulted before you can say "wot no credit agreement!"

This is soon followed by various DCAs chasing payment, and then Weightmans get involved. Their favourite trick is a charging order on you house to get you pay up, and believe me, it has happened.

 

So best of luck, however I don't think the FOS will be much help with your complaint, they only really get involved over PPI. They also have a huge backlog of complaints. I made mine in Jan of last year, it has still not been allocated to an officer.........

They are snowed under

 

Anyway, will keep an eye on your thread.....

[ihpj]

I have no doubt they will be looking to put up a fight - but the law (being an ass) is still the law. In order to gain the relevant permissions and authority for such actions - means going to Court.

 

This also means that before we can get to Court they have certain disclosure obligations to comply with, failure of which can not only prejudice their proposed/intended action but also prevent them from being successful at Court.

 

And since you do appear to be preoccupied with the moral high ground, let me be clear: I am not saying that I am not going to meet my repayment obligations, just exercising my legal privilege in asking them to produce and provide certain information that I am (legally) entitled to ask them for. How is it my fault if they fail to meet their obligations under an Act yet then expect me to adhere to it? There isn't one rule for them and another for us.

 

But then of course not all of us can be Holier Than Thou though - but I guess we must try - however as the pathway to hell is paved with good intentions I guess I know where I'll be going

[birchave0]

huge apologies, I'm sorry if my morals are upsetting anyone I will stop their pocket money.......

 

What I am trying to explain that under CCA 1974 a debt is only enforcable by a judge, they are not really clued up on the ins and outs of the above act, (may I add that neither am I) and they have however ruled that even without a valid agreement, a debt must still be repaid. I think they accepted an application form.....

 

I have still to receive a valid agreement from HFC, even after I reported them to the Information Commissioners Office (who were a waste of space) nothing, a one page application form with no terms and conditions....

 

Sadly the banks and credit card companies DO think they are a law to themselves, that is how they have made so much profit over the last 30 years, by doing what they want at the expence of the consumer

 

best of luck

 

birchave (miss!)

[ihpj]

What I am trying to explain that under CCA 1974 a debt is only enforcable by a judge, they are not really clued up on the ins and outs of the above act, (may I add that neither am I) and they have however ruled that even without a valid agreement, a debt must still be repaid. I think they accepted an application form.....

 

Judges are like a box of chocolates - you're never quite sure what you're going to get. You are 100% on the money (pun intended) in suggesting that M'Lud is not going to be as clued up on this Act as s/he should be - and thereby can make an erroneous judgement/ruling.

 

However IIRC that if no copy of the 'properly executed' agreement can be produced then the debt becomes wholly unenforceable even in a court of law. I would be interested to see how they will take legal enforcement action (which they can only do through the Courts) when the Act specifically prcludes them from doing so. You just have to read through the other threads where DCAs have gotten involved but have been neutralised (neutered? ) by the very fact that the account is in dispute - because the original debtor has not complied with the CCA request.

 

Clearly, I must be missing something here then?

[ihpj]

** UPDATE / ACTION **

 

Got this reply from HFC (http://www.frontiers.plus.com/hfc4.jpg) - which is pretty standard given what they have sent to others on this forum and so I have sent them this reply after reading other threads:

 

---------------

 

Dawn BENNETT,

Team Leader, Executive Complaints,

HFC Bank (Marbles Credit Card),

PO BOX 3607,

BIRMINGHAM.

B1 2XJ.

 

Wednesday 21 January 2009

 

I DO NOT ACKNOWLEDGE

ANY DEBT TO YOUR COMPANY

 

 

Dear Ms BENNETT,

 

Re: [REF. #]

 

I write with regards to your letter dated 16th January 2009, the contents of which I have read and noted.

 

Thank you kindly for taking the time to investigate my concerns, however I do remain disappointed by your response. As I have mentioned in each of my previous correspondence, the information you [HFC Bank] have so far provided is nothing more than a pre-contractual Application Form. I sure that you are aware that there are certain terms that are required to be within the agreement and these are set out clearly in the Consumer Credit Act 1974. Should these terms be mis-stated, or not present, the agreement can be rendered unenforceable in law. By virtue of what you have supplied thus far, and totally contrary to the comments in your letter, what you have supplied is at best improperly executed and at worst wholly unenforceable.

 

Furthermore, any challenge to the agreement in Court would require the signed copy of the original agreement to be produced and therefore this will be deemed a complete defence to any Court action that you may consider taking. As no such documentation has so far been supplied, I am a little surprised that you are not more familiar with your legal responsibilities under the above Act. The signature box on the Application Form that you sent is merely a signature on a pre-contractual Application Form and is meaningless in terms of legal enforceability.

 

In reply, I direct you again to my correspondence of 4th December 2008 and 6th January 2009, and feel I should inform you that I have today written to the Financial Ombudsman Service registering not only your continued default but also disregard of the Consumer Credit Act in seeking to levy penalty charges and interest whilst we remain in dispute. Section(78 )(6) of this act is very clear:

 

If the creditor fails to comply with Subsection (1)

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

 

Consequently, while we remain in dispute:

• You may not demand any payment on this account, nor am I obliged to offer any payment to you.

• You may not add any further interest or charges to this account.

• You may not pass this account to any third party.

• You may not register any information in respect of this account with any of the credit reference agencies.

• You may not issue a default notice related to this account.

 

…and the Consumer Credit Act is clear that a default can only be issued for breach of a valid, regulated agreement. If there is no regulated agreement, as appears to be the case, then you cannot issue a default as I have not breached any valid, regulated agreement.

 

It is wholly unfair that you hold me to account under the terms of the Consumer Credit Act, whilst you yourselves chose to ignore your duties and obligations.

 

I trust this clarifies my position.

 

Yours faithfully,

 

[Printed Name]

Edited January 21, 2009 by ihpj

[ihpj]

Well I now expect them to 'sell' this debt onto a DCA. I have also written to the FoS registering my complaint with them and whereas I do not hold out any hope of their intervention yielding any result, it is better to invovle them than not.

 

So now its back to HFC and their next move.

 

Any comments/advice welcome - thank you!

Edited January 21, 2009 by ihpj

[traceyb918]

Hi IHPJ,

 

It will be good to see if I receive the same letter i'm due one! I sent a default letter to them on the 6th January.

 

Traceyx

[ihpj]

Hi Tracey!

 

Thing is these Banks are now very predictable in their responses and behaviour. Just read through a few threads and you will quickly be able to anticipate their next move - they seem to use template letters in which they totally disregard our individual approach and just seem to go through the motions.

 

Why then can't we apply the same principle? We are one community on the CAG; lets then use this to our advanatge. Most times I have my next letter already drafted in anticipation of their response. This way I keep the pressure on them to reply.

 

I wish you every luck in your own endeavour!