HSBC credit card CCA is it enforceable

[omoeko]

Hi All,

 

I recently requested a copy of my Credit card CCA from HSBC, they have come back to me with the attached CCAs/

 

Please can someone out there let me know if its enforceable, as it looks like a bunch of terms and conditions.

 

Also, I am in the process of starting up a new payment plan with HSBC which will combine the credit card, loan and overdraft together into a managed loan. If this agreement is unenforceable, what will happen to the managed loan arrangement, please note that it hasn’t started, its just in the process of being put together.

 

Thanks in advance.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Edited April 9, 2009 by omoeko

[cerberusalert]

Send the idiots this;

 

 

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY

 

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

[omoeko]

Thanks very much for the reply, would get it straight to them.

[omoeko]

One more question I need to ask is that since this was the response from them (CCA resent received on 20th February), is it worth telling that that the account should now be in dispute, and also what will happen to the cosolidation loan that has just been agreed, only agreed, not done and signed yet and they are saying, ohh you need to return it to us within 28 days otherwise it would be null and void.

 

Also, a FULL LIST of all the documents sent can be viewed on this link

i look forward to your reply.

[cerberusalert]

Are you taking the consolidation loan out to pay this DD?

[omoeko]

Basically, I am currently in financial difficulties at the moment and the idea is to combine all debts inc the credit card into one single managed loan.

[B3rty]

Well that CC agreement isn't worth the paper its photocopied on and wouldn't stand up in court so think very carefully before transfering this to an agreement they can enforce..

[omoeko]

right, so what should I do now, basically the loan I have with them, I had someone on the forum check it and they said it was fine.

[ScarletPimpernel]

Think very, very carefully before agreeing to a managed loan with HSBC - you will end up paying much more than you need.

 

The paperwork above is not an executed agreement, or even an application form, just a list of terms and conditions. It's wholly unenforceable, and HSBC know it.

[omoeko]

Thanks guys for the information, but is there anything I can do at the moment to old things off whilst I sort out the credit card CCA, I have loans and overdraft with them, and they are in arrears at the moment.

 

I dont have the full amount for the loans, but may be able to afford something off it, the overdraft is attracting interest etc. I have had someone check the loan CCA and i got a response that it looks fine, please see loan CCA here

[ready]

Your managed loan paperwork may expire but it can be re-issued if need be, for example maybe you didn't receive it or maybe they haven't received the signed forms you have returned you or the bank are able to re-issue. Only problem this may cause is if your debt is due to passed to collections agents.

[omoeko]

it expires after 28 days or so, at the same time I want to fight off the credit card CCA, HSBC hav been quite quick when it comes to responding to letters, but I dont know what the outcome of the credit card CCA would be.

 

In the meantime, is there anything else I can do. For example, is it worth sending them a letter that the account is in dispute and nothing can be done at the moment, until the dispute is resolved.

 

On the other hand, in cases like this when the credit card CCA is unenforceable, what is the best line of action, they would not accept partial payments on the loan, if they could, that would be perfect as it can keep them quiet whilst I fight out the credit card. Should i also include a letter to them saying that the account is now in dispute ?

[palomino]

One more question I need to ask is that since this was the response from them (CCA resent received on 20th February), is it worth telling that that the account should now be in dispute

 

It's in default. If you wish to dispute it on that basis then fair enough, but until you do so it isn't in dispute.

[omoeko]

ok, update guys. Letter sent. just awaiting what they will come back with, in situations like this, is it worth also speaking to them on the phone, or make it strictly a letter/written communication.

 

i.e I want to confirm if the account has indeed been put in dispute.

[cerberusalert]

No never speak to them on the 'phone. It is important for you to have a 'paper trail' as evidence of what has been done/said. They will have received the letter, you'll get a reply in a few days probably stating that as far as they are concerned they have complied....& the wheel keeps turning.

[omoeko]

Guys, is there anything I can do to tell them to hold fire for now, as they have sent me a form asking for income & expenditure and want to combine debts to a managed loan, what are the consequences of filling in a income/expenditure form, and as my income isnt fixed, i.e depends on the amount of work I get, what can I do here.

 

Also, is it worth telling them to combine other debts but suspend the credit card one as I am still awaiting a legal CCA !

[ready]

Hi Omoeko,

 

I've sent a pm to you.

[omoeko]

Hi,

 

I have no PM yet, once i have it, I will reply you.

[ready]

Sorry my error, it should be with u now.

[omoeko]

Sorry my error, it should be with u now.

 

Cheers for this, I have just replied you.

[omoeko]

Hi,

 

I just sent a PM, any response please

[omoeko]

ok guy, just an update. HSBC have not come back to me yet with a CCA, they have indeed received my letter, and after a phone conversation, it looks like they cant find a CCA and have instead sent me a T&C document.

 

They keep adding interest to the credit card account and left it as a running account, on the other hand, when I spoke to the Financial Difficulties department and after geting CAB to come up with a pro-rota payment offer, they saying they will accept the pro-rota payment but, it has to be in the form of a managed loan, combining load, credit card and bank balance together into one single one.

 

Problem is, they are not listening or replying back regarding Credit card, they wouldn't setup a long term agreement as they saying it has to be in the form of a manmaged loan, interest is being applied onto the account.

 

I said, what if I make pro-rata offers of payment and pay it towards the loan, they said I can do that, but as soon as the account reaches 6 months in arrears, it will go on to a DCA, and i am thinking, if i am making reduced payment every month, why would they refer the account to a DCA ?

 

Dont know what to do now, credit card department are hopeless on the phone and no one seems to be replying to the letter, if I didnt have a credit card which might be unenforceable, I would have taken up the option of the managed loan as the rate is next to nothing.

 

But my bone of contention is that, if i take the managed loan, my lower payment offers will take 11 years to pay off at that low interest rate, this rate is based on BOE rate.

 

What should i do now ?

[ScarletPimpernel]

I'd stop speaking to them on the phone, for a start.

[omoeko]

I'd stop speaking to them on the phone, for a start.

 

They keep calling and calling, up to 10 times a day. is there any letter here to warn them to stop calling, some times its an automated voice etc.

[cerberusalert]

Dear Sir or Madam

 

Harassment by telephone

 

I am writing in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing.

 

I have verbally requested that these stop, but I am still receiving calls. (Delete if necessary)

I now require all further correspondence from your company to be made in writing only. [if you Want Them to]

I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

Be advised that any further telephone calls from your company will be recorded. (**Even if you don‘t yet have recording equipment!!**)

 

Yours faithfully, **Print name do not sign**