Naughtypanther vs HSBC

[naughtypanther]

Hi all,

 

this situation has taken an interesting turn, due to royal mail deciding not to deliver my last 2 'signed for' letters to HSBC. These were pre strike (september) by the way.

 

It seems that a regular courier will not deliver below a certain weight, and as it stands, HSBC think I am ignoring their communications. I will be rather cross if I end up in court with the bank because of royal mail.

 

It is an understatement to say that I am FUMING!!!

 

Anybody suffered this at the hands of royal mail? Anybody know of an alternative way of getting a document sent to them with proof of delivery, without paying a courier £1 per mile!

 

NP

[vint1954]

Do you know for certain that they were not delivered. Virtually all of my recorded letters to HSBC have not been signed for. Seems HSBC refuse for some reason, but they do get there.

 

What address are you using.

[naughtypanther]

Hi Vint, cheers for the response,

 

Cant say for certain they werent delivered, but as their 'responses' (read 'threatening letters!) never quite answer the points I make, I never really know.

 

When writing my latest letter I decided to double check the code on the post office website for the previous 2 letters, and it came up as "this parcel is being progressed through our network", whereas all previous letters show as delivered. I sent the latest by special delivery at he cost of a fiver!

 

They are being posted to Ms Packwood at the Essex address.

 

At least I have proof that I sent them, cant be helped at my end if they wont sign for them.. They have a basic duty to make written contact a possibility, if they cannot support that it should be to their own detriment, not mine.

[vint1954]

You have shown that they have been posted, which is all you need to do. Packwood never signs for my letters either. Same when you write to Canary Wharf.

[naughtypanther]

Manners Vint, that's 'Ms Packwood'

 

You're right there's not a lot else we can do, but equally if they genuinely haven't received them, it does complicate matters.

 

Will soon see if the next one comes up as delivered..

 

Cheers Vint

 

NP

[naughtypanther]

Just a quick update, this one DID get delivered, I am waiting for a response before launching a final letter...

[naughtypanther]

Just a quick update for those following, my latest letter got a response along the lines of "we acknowledge your recent request for a copy of the cca etc, and hsbc endeavour to respond to these within 14 days yada yada"

 

This morning though, I receive a final demand from the same person (Ms Packwood), offering to accept a reduced amount, otherwise I will have debt collectors knocking on my door. Sounds like I am making some progress at least. These people are very stupid, I suppose a lot of people will fold at this point though.

 

I have decided to take this to court now, as I want to see some compensation for the harassment. They realy do bend the rules, and I want to see them brought to book for it. They will get one final chance to do the right thing.

 

NP

Edited November 7, 2009 by naughtypanther
fun

[Castlebest]

You have made the right decision with your claim, the only thing these people understand is a court order

 

I totally understand your sentiment regarding harassment but proving the value will be a problem and unfortunately compensation in the English legal system is likely to be very small .

 

My only suggestion is to take pleasure from the fact that you can play their silly buggers game far better than they can and you can pass on your knowledge to hundreds of other people .

 

pete

[naughtypanther]

OK, so here goes with the latest, I would appreciate any help you can give at the moment, as I feel timing right now is everything.

 

I received today a fob off, in the shape of an a4 envelope full of photocopied junk (agreement small print etc), but no CCA. The letter heading the horror show:

 

"Section 78 (1) of the consumer credit act 1974 requires us to provide a copy of the executed agreement (if any)" "Regulation 3 (2) of the consumer credit (cancellation notices and copies of documents) regulations 1983 allows that certain items may be omitted from such copies, including the signature box and signature"

 

One of the pieces even quotes somebody elses name and address!!

 

Now my situation is this:

 

I havent been paying for several months, as it is now nearly 5 months since my first request was ignored. They have been adding interest, ignoring all my letters, and sending warnings etc. I received a final warning on saturday, so I believe they will now pass this debt over to 'whoever'.

 

What is my best move now? Is their loop hole of not providing the agreement with a signature sound? What action should I be taking right now? And how much leverage do I have given they sent me somebody elses personal details?

 

edit: And the key point, have they technically satisfied my request, and is the account now no longer in dispute?

 

help

 

For the record, my angle is to begin legal action, and at the same time make an SAR request...

Edited November 10, 2009 by naughtypanther
added a question

[vint1954]

have a look through this letter. Edit as required the areas in red.

 

xxxxxx 2009.

Dear xxxxxxxxx,

ACCOUNT IN DISPUTE

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

I write regarding recent communication regarding the above account. I acknowledge no dept to your organisation.

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, supplying only an illegible copy of a generic agreement, devoid of all prescribed terms, and generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements. As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, being a reconstruction, cannot be a True Copy of an Executed Agreement.

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

• You may not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• You cannot register any data with a third party.
  
• You cannot take any enforcement action, including registering Defaults.
  
• You cannot pass the account on to a third party for collection.
  
• You cannot sell the account.
  

Let me explain here, what a true copy is:

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

I also refer you to the information below.

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “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 … 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”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

I am now granting to you a further 7 days to produce a copy of an executable agreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

I look forward to your response.

[naughtypanther]

Mr Vint, that is a corker. Thanks very much for that.

 

I wrote a letter yesterday evening, which took a slightly different tack. I will merge the 2 into 1 almighty letter this evening. I will post this up for your viewing pleasure.

 

Great info there, thanks again! NP

[naughtypanther]

All,

 

sent off a letter which, for the most part, was as above. It ended up 4 pages deep though, so I won't post it up here! Hopefully this will be the end of it, but I am now making preparations to go to court with this, as I suspect that they won't let go until they have no choice..

 

NP

[vint1954]

All,

 

sent off a letter which, for the most part, was as above. It ended up 4 pages deep though, so I won't post it up here! Hopefully this will be the end of it, but I am now making preparations to go to court with this, as I suspect that they won't let go until they have no choice..

 

NP

4 pages, do you have no heart:D

[naughtypanther]

not when these people are concerned.

 

I got a response along the lines of "please refer to my previous letter, we don't really care about the rules and we aren't budging."

 

Interestingly it didn't have any further demands etc, but did happen to arrive at the same time as the latest statement they have now added almost a grand in interest while this account has been in dispute.:-|

 

Where is the best place to read up on the process of taking my bank to court? I thought there was another forum section here for this, but can't find anything?..

 

Am I looking at an N1?

 

I would appreciate any assistance in how I should set out my "particulars of claim". For quick reference, I am disputing a debt based on lack of CCA, and after 5 months of trying to get a CCA, all I have is more interest added and demands for payment, and no CCA.

 

NP:)

Edited November 23, 2009 by naughtypanther

[charley2212]

Hi Np Have You Tried Looking In The Dca Legal Succeses Forum Thread Headed "why You Should Nt Use Section 77/78 Cca 1974 If You Want A Signed Agreement"

Hope This Helps , And The Very Best Of Luck And Have Em !

Hsbc Are The Pits

[rudy691]

subbing

[Castlebest]

Hiya NP

 

not when these people are concerned.

I agree whole heartedly

 

I got a response along the lines of "please refer to my previous letter, we don't really care about the rules and we aren't budging."

 

Well thats a final response so you can now assume your account is unenforceable so write and tell them that. If its unenforceable it means the boot is on the other foot I wouldn't recommend just stopping payment but I would confirm that the interest will be frozen from the date of your first letter and you will be paying them back at £xx (whatever few pence a month you can afford ).

 

Where is the best place to read up on the process of taking my bank to court? I thought there was another forum section here for this, but can't find anything?..

 

Here and us

 

Am I looking at an N1?

 

No there is no need as far as you are concerned the account is unenforceable.

 

 

pete

[naughtypanther]

Hi charley,

 

thanks for that, no i havent seen that one, this forum is a MAZE! I will check it out when I have a chance, not had time this week been too busy working!

 

Hi mr castlebest,

 

thank you for your response. I am a little confused though. I stopped making payments immediately once the first 14 days was up, so its too late for that!

 

My angle on it is, they have had 5 months to supply my cca, all they have done is ignore me, threaten me and add interest to what should be a frozen account.

 

Their minimal responses suggest that they havent even read my letters! It would go down well in court (in my favour)

 

Though I havent checked, its a given that they have been adding marks to my credit file. I need this to stop, as they are clearly out of order, and I would like to get on with my life. I feel surely it is my right to do something about it. So i would like them in court, I would like the account squashed, and I would like compensation for the stress, harrasement and damage to my credit file.

 

I ultimately just want the debt wiping, and my credit file cleaned up. But if I have to go to court, I want to wipe the floor with them.

 

so mr castlebest, what do you think my best path is, given that I stopped payments some time ago?

 

As an aside, what kind of response am I likely to get if I make a complaint to the hsbc complaints department? I asked twice in my letters for the matter to be considered an official complaint, and have heard nothing from the complaints department...

 

Thanks to one and all, NP

[naughtypanther]

Hello again,

 

for anybody who was following this before, all that has happened over the past couple of months:

 

NP: you havent complied with my cca request,please do so

hsbc: oh yes we have

NP: oh no you havent

hsbc: oh yes,...

 

well you get the picture.

 

this was moved onto MCS, who are now threatening to pass it onto DG solicitors with talk of court bailiffs etc.

 

I only recently got my head around the idea that even an unenforcable debt still exists as a debt. Bearing this in mind, I have no problem making an offer of reduced total payment, broken down into monthly payments, to see the issue properly and finally settled. I presume they would rather accept this and have a guaranteed payback, than risk me taking them to court and winning. Is this correct?

 

How should I go about making this offer, and how would I go about making payments? I presume they would have to back off a little if I began making payments again (i stopped when the account went into dispute). Also, what proportion of the original debt would they be likely to accept?

 

All advice greatly appreciated.

 

Thanks, NP

[naughtypanther]

OK,

 

so i sent out my SAR this week,I also sent MCS an offer of settlement of 1000 english pounds, I offered to make a monthly payment of £50. I will send them a cheque next for this week.

 

I am also going to make a complaint to HSBC, and see if they decide to help resolve this problem.

 

MCS sent yet another letter threatening bailiff courts DG solicitors etc..

 

Spoke with some debt advice people who told me that, even the gobbldegook they sent as an excuse for a signed CCA will likely be valid. How do i stand here then, as this would mean the account is no longer in dispute?

 

Anybody?

[vint1954]

The "gobbledegook" that they sent, if in the correct format, will possibly be complient for responding to s78 requests, but nothing else.

 

They need something better to take you to court.

[naughtypanther]

Thanks for that vint Thing is, does that stop them taking me to court in the first place? And, more importantly, how does it put my 'account in dispute' stance? If the account is no longer in dispute then I am surely out of line by not making payments?

[johnnymitch]

Hi np , as vint said , they'd need more than they've got to take you to court .... and if they've got more they're obliged to give you a copy of it as 'a document which they will rely on in court'...so I 'd say you're pretty fireproof ...

 

If they haven't got a document which conforms to the legal requirements , then the debt is unenforceable ..... which means it doesn't go away , but they can't chase you for it ......

[naughtypanther]

Hi Johnnymitch,

 

which means it doesn't go away , but they can't chase you for it ......

 

This is the bit i only recently grasped! So I quickly came to terms with the idea of offering them a settlement, and beginning to make payments to them again. At least now the account is closed and interest is effectively frozen. I think £50 per month is a very reasonable gesture on my behalf.

 

I have been reading a lot about what they can get away with supplying, and I am unsure as to whether or not they genuinely have effectively satisfied the requirements.

It seems they gave me a reproduction. Bizarrely this included a few photocopied statements, signed by them, to, quote "validate the debt"!

 

if they've got more they're obliged to give you a copy of it as 'a document which they will rely on in court'.

 

At what point are they obliged to provide it though? before beginning court proceedings? 2 days before the court date? I hear a lot of contradictory things about this. They have spent 9 months now not providing anything and trashing my credit file meanwhile..

 

Thanks for the responses, np

[johnnymitch]

At least 14 days before any hearing date .... to give you ample time to prepare a defence ...... they can't just spring it on you ..... the court orders them to produce outside that time period , any documents they intend to rely on ..