HSBC credit card CCA is it enforceable

[omoeko]

cheers for the letter, going off to them, but what can i do regarding my enforceable loan and my unenforceable Credit card, as they seem to want me to get a managed loan and wouldnt budge on making reduced payments only on the loan.

 

Looks like, I'm just going to make reduced payments on the loan only and the wheel should keep turning on the credt card, i sense it will be a long hard fight.

[omoeko]

cheers for the letter, going off to them, but what can i do regarding my enforceable loan and my unenforceable Credit card, as they seem to want me to get a managed loan and wouldnt budge on making reduced payments only on the loan.

 

Looks like, I'm just going to make reduced payments on the loan only and the wheel should keep turning on the credt card, i sense it will be a long hard fight.

 

Hi Guys

 

Any ideas here ?

 

If i am making minimal payments monthly, even though the creditor is trying to force me to take on a new managed loan, can i still get a CCJ ?

[cerberusalert]

Why would anyone be daft enough to agree to a managed loan when part of it comprises of an unenforceable debt?

 

As for the enforceable loan if you are making affordable payments in the unlikely event that they applied for a CCJ a judge wouldn't look at them too kindly & would be unlikely to make you pay more than you are at present.

[omoeko]

Hi All

 

I have now received a response from MSBC, can someone clarify thier position for me please.

 

If anyone needs the original terms & conditions which was sent to me as a CCA, please let me know.

 

 

 

 

Edited April 20, 2009 by omoeko

[omoeko]

Any advice on this anyone ?

[cerberusalert]

Send them this;

 

Dear Sir or Madam,

 

 

Account no

 

ACCOUNT IN DISPUTE

 

Re: my request under the Consumer Credit Act 1974

 

 

Thank you for your letter dated ........, the contents of which are noted

 

Your attention is drawn to the fact that this account is subject to a serious dispute. On ......... I requested that ........... supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date ........... have failed to comply with my request. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to .............., nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(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

© 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.

(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;

 

 

Clearly as no agreement was supplied on request, this in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in S.78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

 

 

To clarify S.61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as ............... become compliant with my request. As ................ are still not in compliance with my request I insist that the following takes place with immediate effect

 

All entries which refer to missed payments be removed from my credit file

All collection activities cease with immediate effect until ............. comply with my request from .date........... or such time as a court makes an enforcement order

In addition, I draw your attention to the Office of Fair Trading’s guidance on Debt Collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

What I Require.

 

I require that you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

 

I trust this out lines the situation

 

Yours,

Print name do not sign

[Helios]

No CCA = no proof of debt

 

typical HSBC attitude in those 2 letters, just a standard reply from them

when they cannot enforce an account... don't pay anything towards the credit card until they get back to you with a properly executed agreement that is signed by you of which they cannot supply and HSBC know it

 

have they attempted to call you since you sent the harrassment letter?, don't talk to them on the phone ever they trying to shove a managed loan down your throat which you do not want

[omoeko]

Cheers for this cerberusalert, what can i do about the fact that since January when this started, they have been adding interest to the account.

 

Also

 

They said that they referred to it in some document or the other, would this constitute a legit CCA if it was referred to ?

 

Lastly, HSBC dont take documents seriously if its not signed, as they always say they need to verify the identity of the customer which in a way is understandable, what do i do ?

[omoeko]

Hi,

 

In the original CCA response which I got off them, they included a stamped/signed copy of the credit card statement, the section of the letter which cerberusalert stated that:

 

" 78 Duty to give information to debtor under running-account credit agreement

(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

© 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.

(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; "

 

 

I have some few questions here for my own understanding:

 

 

(a) The state of the account, and

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

© 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.

Could they come back and say, the signed/stamped statement we gave you already has all this information, or should this be part of the original agreement if any ? or can this be retrospectively handed to me.

 

 

 

 

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

 

 

They have not resolved the issue and its not my fault that they are taking long to respond to letters, can i start a seperate dispute about the interest being added to the account since the 12 working days elapsed, would this be mentioned in a seperate letter to thier complaints dept or can i include in this letter as well ?

Can someone also clarify the situation with the signature please, as I can see them ignoring this letter without a signature as when i requested the CCA itself, they said they wouldnt honour it until a signature has been provided, besides they have my signature within the bank anyway and if they wanted to forge this, I dont think nothing will stop them, remember I have a bank account & a loan which is enforceable with them.

 

Thanks.

[omoeko]

Hi All,

 

HSBC are now issuing a default notice and threathening court action, is it worth scanning the document here, what can i do now. They are also referring to an agreement in the default letter, but have not shown me any agreement apart from a bunch of T&C's, what can i do now. The last letter posted by the gentleman was posted to them last week.

[omoeko]

Ladies and Gents

 

What can i do now, they have sent me a default notice and are threathening court action, this was sent a day after I sent the letter cerberusalet helped me write. should i ignnore this or would another letter do here ?

 

would scan the default letter on the site today. is this needed ?

[Helios]

There terms & conditions are not a enforceable agreement it must have required prescribed terms and be signed by you

 

what they sent you is not enforceable

 

 

HSBC must fully comply with your request for a copy of the signed agreement

[omoeko]

[omoeko]

HSBC are now looking a little deperate, they threathened me to make payments ASAP, but at thesame time they also sent me a really good offer for a managed loan, reduced interests to next to nothing, also stated that reduced payments can be made for an indefinite period obviously until debt is fully repaid, problem is that they are still adding the credit card element to it which is unenforceable, at the moment I am still paying them what I can afford (Personal loans) only.

 

What letter can i send to them now since the credit card guys and HQ are 2 seperate people I'm now dealing with.

[omoeko]

Guys,

 

Any advice here please ?

[cerberusalert]

Does that default notice give you a clear 14 days from your receipt of it to remedy the default?

[omoeko]

Hi Yes

 

They gave the 14 days notice, but whats the situation with the actual CCA, they refusing to accept that the account is in dispute, and treating it as business as usual despite over 4 letters written to this effect.

 

Any ideas

 

thx.

[cerberusalert]

Did you have 14 days after you received the notice?

 

Don't worry about the DN, that's just something they have to send prior to marking your credit file & closing the account before passing the a/c on to a DCA.

 

There are a couple of things you can do now, the first is to ignore them & wait for a DCA to get involved....they can be dealt with easily enough. The other is to send a SAR to them which will cost £10 http://www.consumerforums.com/resources/templates-library/86-debt-collectors/576-subject-access-request-debt-a-dca.html This will provide you with statements & a copy of the CCA if they have one, plus it'll give you the chance to work out any unfair charges they may have added which you can claim back.

[omoeko]

I think the SAR option is a good one, they are indeed proving a little difficult. They said this could only be done on the phone, dont know if its already been ordered.

 

Does anyone know an address to write to, I told them i prefer to write in, but they wouldn't give me an address either.

 

Does anyone have an address for HSBC SAR

[omoeko]

should any letter be sent again apart from SAR ?

[cerberusalert]

No, just send the SAR for now. You have already sent the 'in dispute' letter, so if they do pass it on to a DCA you should then send the 'bemused letter' & make a complaint to the OFT.

[omoeko]

Hi Guys

 

 

Thought I give an update, after sending series of letters to HSBC pointing out the fact that they have not provided an enforceable agreement over the last couple of months.

 

They don't seem to acknowledge this fact, but now they have come back to me on the credit card, despite the fact they I have other debts with them, and when they have tried to force a managed loan on my throat, I have resited and said "NO". I have also pointed out the fact that if they want to place it all in a managed loan, one of the debts is unenfoeceable.

 

They have recently sent me a letter stating that I should make them an offer to settle the matter.

 

I am thinking that since the debt is unenforceable, and they dont want to seem to accept this and the only way this would be ersolved is if it goes all the way to the courts. I am thinking of making them a cheeky offer on the basis of take it or leave it since I should not even be paying back a penny as the debt is unenfoeceable in the first place.

 

What do you guys think ?

[omoeko]

Hi Guys

 

I need some kind of advice.

 

PLease help

[omoeko]

Hello Guys,

 

I have just had a letter from Metropolitan debt collection services asking for the total amount of debt owed to HSBC credit card, this is despote the fact that they have not sent me an enforceable CCA, what should I do now ?

 

The letter sounds pretty intimidating, should I ask the DCA for an agreement as well and see what they come up with ?

 

Thanks in advance.

[cerberusalert]

Send Met this; http://www.consumerforums.com/resources/templates-library/86-debt-collectors/574-letter-when-account-has-been-passed-on-whilst-agreement-request-is-in-dispute