HSBC, Capquest and Moorcroft

[LesleyDeacanjason]

Hi

 

 

I need advice please

 

I recieved a letter from capquest with regards to a loan with HSBC.

 

I sent them the consumer credit letter as per template also including deed of assignment letter.

 

They sent me the standard holding letter saying we are obtaining the information and will be in contact soon. I heard nothing back from them, and today i received from moorcroft debt recovery. i telephoned moorcroft and asked if they had recieved instructions from capquest. they said no they had recieved instructions from hsbc. so what they have done is sent it back to hsbc , who then sent it to another debt recovery company!

 

so where do i stand with consumer credit request as they have not complied with it?

[cerberusalert]

Send this courtesy of ODC;

 

DO NOT RING THESE CLOWNS.

 

Send them this

 

Dear Sirs,

 

 

Account no xxxxxxxxxxxxxx

ACCOUNT IN DISPUTE

 

 

Re: my request under the Consumer Credit Act 1974

 

 

 

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

 

You attention is drawn to the fact that this account is subject to a serious dispute. On xx/xx/2007 I requested Capquest supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date Capquest have failed to comply with my request and have totally ignored my written reminders sent via recorded delivery of this fact. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you or Capquest, 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; and

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

 

 

 

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 s78(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 s61(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 Capquest become compliant with my request. As Capquest are still not in compliance with my request I insist that the following takes place with immediate effect

All charges levied since ******** 2007 be removed from the account and further charges cease until such time as ******* comply fully with my original request or such time as a court makes an enforcement order

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

All collection activities by your company cease with immediate effect until ******** comply with my request from ********* 2007 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

 

Regards **Print name do not sign**

[LesleyDeacanjason]

thank you thankyou thank you

 

Never have i seen a more excellently worded letter.

 

I will send it buy fax and recorded post tommorrow and await their reply.

 

Again many thanks will keep you posted

 

[LesleyDeacanjason]

is it down to moorcroft now to comply or capquest?

[cerberusalert]

Moorcrosft because they are doing the chasing;)

[LesleyDeacanjason]

ahh gotcha so i need to add in this section

""All collection activities by your company cease with immediate effect until ******** comply with my request from ********* 2007 or such time as a court makes an enforcement order"

moorcroft and not capquest?

 

sorry just want to make sure i have got it right.

 

I have to say you are a superstar letter writter

[cerberusalert]

""All collection activities by your company cease with immediate effect until Capquest comply with my request from ********* 2007 or such time as a court makes an enforcement order"

[LesleyDeacanjason]

Morning all

Having receieved a letter yesterday from this company about a HSBC debt, I checked my credit file and found they have been marking me as defaulted since last year! I have had no contact frOm HSBC, and the last payment made was 2006, and account show as closed with them in April 2007. This means that it would be off my file next month.

How can they add this to my credit file without me knowing and showing me as defaulted? They have a default date of Sept 2008 on their entry.

 

Any ideas how to deal with these people. Not happy to have this default come on my file, after some 6 years of no contact.

 

All advise greatfully receieved

[BRIGADIER2JCS]

This will have been defaulted by HSBC I would think, how long is it since you last checked your cxredit files?

You will need to make a SAR to HSBC to check the original default date.

But if there has been no payment or written acknowledgment of the debt in 6 years (5 in Scotland) then it is statute barred.

So the SAR is essential here.

[LesleyDeacanjason]

My file shows account closed with no default but 6 months arrears. No defaults entered by hsbc?

[LesleyDeacanjason]

Never checked my file before now

[BRIGADIER2JCS]

Even more important to get the SAR done then.

 

Which CRA are you using?

[BRIGADIER2JCS]

Never checked my file before now

 

Ok then there is not enough historical data to be sure what has actually been going on.

 

I am pretty certain this is statute barred, but defaults will remain on CRA files even if a debt is SB

if the default still has time to run.

[LesleyDeacanjason]

Check my file, its got equifax and callcredit data on it

[BRIGADIER2JCS]

I am always wary of these agencies displaying 2nd hand data, Noddle is similar and often well out of date.

[LesleyDeacanjason]

I am always wary of these agencies displaying 2nd hand data, Noddle is similar and often well out of date.

oh no I used a rubbish one?

 

Does that mean that they will be allowed to leave the default on there even though the origional debter didn't? That means that default will now be showing til 2014. That doesn't seem fair, can I do anything about it? Thanks for your help

[BRIGADIER2JCS]

That's what I'm trying to avoid for you but wthout the SAR there is insufficient data to enable me

to put together a full challenge statute barred and wrong default date.

[LesleyDeacanjason]

Thanks you are a true fountain on knowledge!

So who would i send the SAR too? DCA or HSBC?

[BRIGADIER2JCS]

SAR to HSBC addressed to the Data Controller. use recorded delivery so you can check date received, the 40 days starts from then.

[LesleyDeacanjason]

SAR to HSBC addressed to the Data Controller. use recorded delivery so you can check date received, the 40 days starts from then.

 

Thanks will crack on with that now.

 

[LesleyDeacanjason]

Hi Bridge, hope u had a good easter

 

Got letter back today saying they have received my request. But it says because the address they have differs frm my home address I have to change it in branch? But as far as I'm aware I don't have an account with them. It aslo says that they cannot process without an address change. - can send you word for word if need be. Does that sound right?

[BRIGADIER2JCS]

Yes they are referring to the Data Protection Act, this is as much to protect you as it is for them to be sure that they are handing over data to the right person,

so yes take the letter into the HGSBC branch with Your ID passport or driving licence and a utility bill with the correct address you will then be able to arrange to pick up the data from the SAR there when the request is processed.

 

Cold wet & snowy Easter but other wise fine thankyou and you?

[LesleyDeacanjason]

Yeah not too bad thanks, will be nice one the weather warms up! funny that this time last year it was 16 to 17 degrees....if only this year!

 

They sent a form for me to sign, with the designated branch to send through too. Will send it back with the note of the date i will go in and change it.

 

Hopefully i will get details soon, so i can sort these MK people out. Been reading other posts and it turns out the have been up to this alot.

 

Have you heard of anyone successfully sorting them out with removal of defaults?

[BRIGADIER2JCS]

Yes, as I help others out side CAG I have had some considerable success in the removal of defaults and other adverse data from credit files, not always a quick fix but it can be done,.

I'll help you all I can.

[LesleyDeacanjason]

Thanks thats really apprecaited