HSBC response to my CCA - can anybody help?

[feelingthinner]

Hi there

 

This is my first post, so I feel strangely nervous , but here goes...

 

I made a CCa request to HSBC and they have now sent me lots of photocopied t&cs and statements, as well what look to be faxed copies of an "agreement"

 

One page has my signature on it, and there is another page which is headed "credit card agreement", but there is nothing to say they are linked.

 

It doesn't help that they look like they are photocopies of faxes which makes them hard to read anyway.

 

I have uploaded them to photobucket, so I was wondering whether any of you lovely people would be able to have a look & suggest any possible course of action? Is there a particular letter that I should send next? Or is what they have sent me ok?

 

Thank you

 

Natalie

 

http://i607.photobucket.com/albums/tt157/feelingthinner/hsbc1-1.jpg

 

 

http://i607.photobucket.com/albums/tt157/feelingthinner/hsbc2.jpg

Edited March 20, 2009 by feelingthinner

[cosalt]

Hi feelingthinner,

 

Firstly welcome to CAG ! The majority of people on here are in a similar situation to you, don't feel nervous - you have taken the first step to sorting out your problems.

 

With regards to your agreements, I am struggling to read them. Are the copies you have just as bad?

 

You have a right to receive a legible copy of your agreement so in that respect they have not fulfilled their obligations. It could be that they don't have an agreement and all they have is this scanned copy, in which case if they tried to take you to court they would need to produce a correct, legible copy in order for the court to enforce ( they dont need to have an original )

 

If it were me I would write back stating that you can not read what they have sent and therefore are in breach of your request, and can they send a better copy, this may give some indication as to if they have an original or not.

 

Good luck with this, if you need any further advice just ask and someone will help out as soon as they can.

 

Cosalt:)

[creditcardmug]

Hi heres a letter you can send in reply to this, read thro and amend if necessary,

 

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY

 

Thank you for your recent letter sent to me, postmarked XX XXXX 2008 and received on the XX XXXX 2008 the contents of which are noted.

 

 

First of all I would point out :

 

 

The Application form you have sent is illegible and I am unable to clearly assess its contents. This contravenes the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557).

 

Regulation 2 states:

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

Furthermore, I note that you have replied to my request by sending a copy of an Application form and your current terms and conditions . I must inform you that this is not sufficient to comply with my request and that your company is still in default under the Consumer Credit Act 1974.

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account providing that a fee of £1.00 is paid. This fee was sent with my original letter, received by you on XX XXXX 2008.

 

Sending an Application form is a breach of the Act and Consumer Credit (Agreements) Regulations 1983 as, apart from the information that the regulations provide that you may exclude, the copy must be a “true copy” of the agreement. For the avoidance of any doubt section 3(1) of the 1983 regulations shows that, subject to certain limited exceptions, any copy of an unexecuted agreement must be a ‘true copy’. This means that it must be identical to the agreement as presented or sent to the debtor for signature.

 

Section 3(2) of the same regulations states what may be excluded from copy documents: There may be omitted from any such copy- (a) any information included in an executed agreement, security instru*ment 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 there under as to the form and content of the document of which it is a copy.

 

As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law, as shown below.

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

As already pointed out, the document sent is illegible and I am unable to see if the prescribed terms as required by section 60(1) Consumer Credit Act 1974 are present. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. I have not written them here for you as I’m sure you are well aware of them.

 

You had until the XX XXXX 2008 to provide me with the true copy I requested. After that date you entered into, and currently remain in, default of my request.

 

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

 

 

2.8 Examples of unfair practices are as follows:

k. not ceasing collection activity whilst investigating a reasonably queried or

disputed debt.

 

Whilst the account remains in dispute (for clarity, the lack of a legible and compliant credit agreement is a very clear dispute), under section 78(1) of the Consumer Credit Act 1974 you may not enforce the agreement. This includes, but is not limited to, the following:

 

-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. The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent (given in the form of a signed credit agreement) will be met with a complaint to the Information Commissioners Office.

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

 

Please note that to register information with the credit reference agencies, or to issue a default notice, would also be in breach of Section 13.6 of The Banking Code, which stipulates that you can only register such information if the amount owed is not in dispute.

 

 

I look forward to your reply.

[feelingthinner]

Thanks so much for your replies.

 

I shall send that letter today and update when I get a response.

 

It's good to know I'm not on my own,

 

Thanks again.