hsbc does incorrect = unenforceable?

[steiner316]

Having recieved my cca request, the amount of the final repayment and dates are completely wrong.

I have spoken to HSBC who have acknowledged their mistake and agreed to put this in writing. My question is this: does the fact that the prescribed terms are incorrect make the agreement unenforceable? or are they allowed some room for error as long as the terms are all present?

Either way what should my next move be upon reciept of their letter?

 

all advice very much appreciated

[presumeddead]

Anybody? all i would like to know is whether the fact that the prescribed terms are incorrect makes the agreement unenforceable in the same way as them being missing altogether would. Am sure that if they were missing altogether then the agreement would be invalid, but am unsure of the case if they are there but wrong

[BubbleCat]

It is my understanding this would make the agreement unenforceable

[presumeddead]

thanks for the reply i thought (and hoped) so to however all the info i can find seems to relate to missing rather than incorrect terms so am still a little confused

[atwozee]

TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

[presumeddead]

thanks atwozee - very grateful for that.

 

q.1. would typing the incorrect final payment due, as well as the final payment date constitute a breach of the prescribed terms?

 

q.2. would a judge simply decide that it's obvious to see where the error is in the agreement and enforce it anyway?

[atwozee]

According to the above judgement then no – the HSBC are more than capable of getting the figures correct – they don’t really have a defence - even if the mistake were in your favour it would still be mis-sated – the prescribed terms are prescribed for a reason – they are not a de minimus issue and should not be overlooked as a trivial issue.

They had a choice to get the calculations correct – they aren’t difficult calculations – if they get them wrong then the above case law applies.

[presumeddead]

thats interesting - is there a cut off time for that legislation, as the date i signed was 2/04/07 i read somewhere else on the forum that post 2006 the regulations don't apply, and somewhere else that after jan '07 they didn't?

[atwozee]

s127(3-5) was repealed but I think that only applies to agreements signed on or after 06/04/2007 - you might just have squeezed it.

[presumeddead]

it's actually an interesting point - in the case of a loan agreement that isn't dated as such i guess it would be deemed as starting from the date both sigs were put to it (02/04/2007) in this case?

[atwozee]

Whichever signature was the latter would be the one that executed the agreement and that would be the applicable date – so the latter date needs to be 05/04/2007 or earlier.

[presumeddead]

that's fine then. what would you suggest next - obviously i shall wait for them to confirm their mistake in writing which they have agreed to - then what write back to say i believe the agreement to be invalid?

[atwozee]

that's fine then. what would you suggest next - obviously i shall wait for them to confirm their mistake in writing which they have agreed to - then what write back to say i believe the agreement to be invalid?

 

No matter what you do the HSBC will not agree that their agreement is unenforceable – just so you know.

If you stop payments then they will probably default you and start to harass you for payment – they will not just lie down so don’t expect an easy ride.

But once you are sure they have made a mistake with a prescribed term and s127(3-5) applies then you are within your rights to dispute the agreement and go all the way to court if necessary.

The choice is yours really and I advise you to read as much as you can and make an informed decision – forget being an HSBC customer from now on though if you choose to dispute the agreement – so if you bank with them then best to get an account somewhere else before you do anything.

[presumeddead]

gave up being an hsbc account holder long ago tbh - they are not my favourite company in the world. As for them harrasing me not too worried in a funny sort of way it's often good fun winding them up when they can't get what they want so i'd be happy to take them on!

As for arming myself with the knowledge it's knowing where to star - obviously cag has given me the basics would ideally like some kind of similar case to compare it too though.

I guess when i get the letter i'll have a go at posting all the relevant things agreement etc just to try and get some ideas from everyone?

[johnnymitch]

Listen , guys , I don't know if you noticed....... but this thread was started by Steiner 316 who put one post on it then got swamped by everybody else -

 

Anybody like to help him /her out with some direct answers ..... ?

 

Or are you OK Steiner 316 ?

[presumeddead]

sorry johnnymitch - my fault entirely but no problem - let me explain i registered yesterday not realising i was already registered from years back under a different name, logged in to bump my own thread, without realising id used the other name!!

so your right about me jumping all over the thread, but as it was my own anyway i'll forgive me this time!!

[johnnymitch]

Hee -Hee - thats not the first time that's happened to me - Smokieone was another I think ..........:lol:

 

Still as long as you've forgiven yourself ....... that's OK , then LOL!

 

 

btw thanks for the tip !

[presumeddead]

http://i578.photobucket.com/albums/ss223/presumeddead/scan-feet077.jpg

 

http://i578.photobucket.com/albums/ss223/presumeddead/scan-feet076.jpg

 

these are the copy of the original agreement along with hsbcs acknowledgement of error. does anyone agree that this would constitute the prescribed terms being incorrect?

Edited March 25, 2009 by presumeddead

[atwozee]

TBH it’s not hard to get the prescribed terms right is it – this is about as clear cut a case of an agreement being unenforceable as there could be.

I’ve already quoted the case law – that’s all you need really.

How could they get this so wrong?

[johnnymitch]

And to admit to it in writing is a bonus - ! What a load of wallies ........

[presumeddead]

thanks guys, so what should my next letter be - i'm guessing 'thankyou for your admission of incorrect prescribed terms, quote of the relevant case law, then what? - do i tell them i will no longer be paying, do i ask for the debt to be written off, or make a final offer? any ideas/ advice/ templates would be much appreciated

[atwozee]

Modify to suit (if you want to make a full and final offer that’s entirely up to you – although you might consider payments already made against an unenforceable agreement as being sufficient) and send to HSBC head office in London

 

Dear Sir/Madam

 

Account Number xxxxxxxxxxxxxx

 

I refer to your letter dated 24/03/2009 in which you confirm that the repayment schedule of the above account have been mis-stated on the written agreement which was signed by me on xx/xx/xxxx and the HSBC on xx/xx/xxxx.

 

The making of the agreement was subject to the strict provisions of the Consumer Credit Act 1974 (“CCA”) and its associated regulations. Schedule 6 of the Consumer Credit (Agreements) Regulations 1983 clearly states that for this type of agreement the repayment schedule is a prescribed term for the purpose of section 127 (3) of the CCA.

 

In the case of Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 it was ruled that the prescribed terms for the purpose of schedule 6 of the regulations could not be mis-stated in the slightest and if they were then the whole agreement would be ruled irredeemably unenforceable against the debtor by virtue of s127 (3) of the CCA.

 

As a consequence of the serious error made by the HSBC in setting out the repayment schedule this agreement would prove to be unenforceable even by a court order. As such I will not be making any further payments against this account and I no longer recognise the agreement as being legally binding.

 

Because I have clear grounds to dispute the enforceability of this agreement you are advised to cease any further collection activities regarding this account. All further communication must be in writing but please be aware that any demands for payment made by you would be considered to be an act of harassment.

 

Yours faithfully

presumeddead

[presumeddead]

atwozee you're a star! - exactly what i was after thankyou very much

[presumeddead]

does anybody know what the situation is from here on out then? hsbc have recieved the last letter i sent, they phone now and again asking for a payment but give up whenever i explain the unenforcability aspect. Does this just go on indefinately? what about when pass the debt on which they say they will do if one more payment is missed? is there a way to resolve the thing finally or do they just go on putting marks against my credit forever?

[Zorro01]

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