Marlin/Phoenix CCJ on HSBC OD debt now want SD - Charging Order objection - ***WON***

[cerberusalert]

If MCS are stating that they are in breach of OFT guidelines;

2 UNFAIR BUSINESS PRACTICES

Communication

2.1 It is unfair to communicate, in whatever form, with consumers in an unclear, inaccurate or misleading manner.

2.2 Examples of unfair practices are as follows:

a. use of official looking documents intended or likely to mislead

debtors as to their status, for example, documents made to resemble court

claims.

b. leaving out or presenting information in such a way that it

creates a false or misleading impression or exploits debtors' lack of knowledge

c. those contacting debtors not making clear who they are, who

they work for, what their role is, what the purpose of the contact is

d. unnecessary and unhelpful use of legal and technical language, for

example, use of Latin phrases

e. failing to provide debtors or creditors with information on status

of debts, for example, not providing requested balance statements when

reasonably requested

f. contacting debtors at unreasonable times

g. ignoring or disregarding debtors' legitimate wishes in respect

of when and where to contact them, for example, shift workers who

ask not to be telephoned during certain times of the day

h. asking or instructing debtors to make contact on premium rate

telephone numbers

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft664.pdf

[molly13]

Thanks for that Cerberus. I'll get onto that:)

 

Well, I've eventually got the agreement and final demand scanned etc.

 

Sorry, but I've got them in the wrong order, should read from bottom to top. ( well it is late )

 

Thanks again for the advice.

 

 

Regards

Molly:)

[Pinky69]

Why so HSBC "agreements" always look so like flimsy cut and pastes?? I can see nothing to link these pages and especially to link the other pages to the signature document. Still, the issue is the DN and the sale. I would ask HSBC for a copy of the NOA if they say they have sold the account.

[molly13]

Hi Pinky,

 

Thanks for the advice.

 

Are you saying that the Agreement is unenforcable?

 

Looking at the Terms, section 2 Default it states:

 

" we will have a right to demand immediate payment" "we will first send you a default notice" etc.

 

They didn't and then just closed the account!

 

I'll get on to them regarding the NOA and also question whether they have terminated.

 

Thanks again.

 

Regards

Molly:)

[Pinky69]

All the prescribed terms are there so if a court accepted the document as genuine, it would be enforceable. I just think they look very flimsy for a mainstream bank. Yes - get a copy of the NOA and see what it says about the assignment.

[diddydicky]

you need to get a SAR off

[robcag]

Hi Molly

 

AFAIK, MCS are part of HSBC, i.e. their 'in-house' debt collectors.

 

See; http://www.consumeractiongroup.co.uk/forum/hsbc-bank/151559-truth-about-mcs-metropolitan.html

 

Try Googling MCS HSBC for many more links which seem to confirm that.

 

Cheers

Rob

[molly13]

Hi all,

 

Diddidicky, I have had the SAR response. No mention of DN or NOA. I queried the lack of DN and was referred to the letter dated xx'07, which is the Final Demand letter:confused: No evidence to say a/c was sold or terminated. Just a/c closed.

 

Rob, I know about MCS being HSBC from our mutual good old Marlin days:) (in fact we had a letter from some guy who signed letters for both HSBC and MCS, who got in a bit of a muddle when my husband questioned him about that.)

 

However with this account when OH phoned MCS they stated that they were not part of HSBC.

HSBC can't/ won't say who it was 'sold' to.

 

Anyway I've now sent them a letter requesting NOA if they have indeed sold it.

 

Thank you both for your input.

 

Regards

 

Molly:)

[diddydicky]

Hi all,

 

Diddidicky, I have had the SAR response. No mention of DN or NOA. I queried the lack of DN and was referred to the letter dated xx'07, which is the Final Demand letter:confused: No evidence to say a/c was sold or terminated. Just a/c closed.

 

Rob, I know about MCS being HSBC from our mutual good old Marlin days:) (in fact we had a letter from some guy who signed letters for both HSBC and MCS, who got in a bit of a muddle when my husband questioned him about that.)

 

However with this account when OH phoned MCS they stated that they were not part of HSBC.

HSBC can't/ won't say who it was 'sold' to.

 

Anyway I've now sent them a letter requesting NOA if they have indeed sold it.

 

Thank you both for your input.

 

Regards

 

Molly:)

 

 

not usually a good idea to ask for proof of assignment- usually better to play dumb and wait whilst they start proceedings

 

if they have demanded full payment and /or closed the account and so prevented you from enjoying the benefit of repaying monthly then they have unlawfully rescinded

 

however make sure that "closing the account" doesnt just mean that they have prevented further borrowing- which is not the same as preventing you from repaying what is already owing by monthly payments

 

not a good idea to ASK them if they have terminated- if they say no it could be awkward

[Pinky69]

I disagree about asking for proof of assignment. If you don't have it - and it should have been in the SAR - you don't know if the account has been sold or not and whether the claimant has any right to ask for payment. That knowledge won't affect any subsequent proceedings. It should have been sent as a matter of course anyway.

[diddydicky]

I disagree about asking for proof of assignment. If you don't have it - and it should have been in the SAR - you don't know if the account has been sold or not and whether the claimant has any right to ask for payment. That knowledge won't affect any subsequent proceedings. It should have been sent as a matter of course anyway.

 

 

i have to disagree (from my own point of view) any claimant who brings an action against me must prove that they are the the genuine owners of the debt- if they are not the OC and it has been bought or assigned- then the assignee must have proof that the creditor (or them on behalf of the OC- have previously notified me of the assignment to them (registered letter - not normal post)

 

the more so if i positively deny any knowledge of any assignment

 

if they cannot show that i have been notified that the debt has been sold to them then their action against me would have no cause

 

strike out time

[molly13]

Good afternoon all,

 

[Could someone take a look at this please and tell me whether,in your opinion this is an application form or a properly executed enforceable agreement:

 

 

 

 

 

I personally believe that it is an application form, and told HSBC this when I put the account in dispute.

Thank you.

 

 

Regards

Molly:-)

[molly13]

The response from HSBC re. a/c in dispute:

"we have complied with the requirements of s 78 of CCA. In particular we have supplied copies compliant with regulation 3 (2) (b) of the consumer credit (cancellation notices and copies of documents) regulations 1983"

What is regulation 3 (2) (b) please?

Molly:-)

[harrassed senior]

If that is all that they have sent there are no Terms and Conditions for a start.

 

First line second column states that 'this application' etc. so there is your answer.

 

Others will be along soon with their opinions and with an answer to your question.

[molly13]

Thanks for that harassed senior.

 

That is what I thought.

 

Still don't know what the regulation they refer to is though:???:

 

Regards

Molly:-)

[harrassed senior]

Found this:

 

Form and content of regulated consumer credit agreements [not applicable to overdrafts falling within section 74(1)(b) CCA]

3.—(1) Documents embodying regulated consumer credit agreements (other than modifying agreements) shall contain the information set out in column 2 of Schedule 1 to these Regulations in so far as it relates to the type of agreement referred to in Column 1.

(2) Documents embodying regulated consumer credit agreements referred to in regulation 2(2) (b), © and (d) above may contain the information set out in column 2 of Schedule 1 to these Regulations in so far as it relates to the type of agreement referred to in column 1 in which case these Regulations apply instead of the 1983 Regulations.

(3) The information specified in Schedule 1 shall be presented in a clear and concise manner.

(4) For the purposes of this regulation, the requirement for the information to be "clear" includes a requirement that the wording, apart from any signature, is to be easily legible and of a colour which is readily distinguishable from the background medium upon which the information is displayed.

[Bazooka Boo]

I believe they are referring to this:

3 General requirements as to form and content of copy documents

(1) Subject to the following provisions of these Regulations, 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 be a true copy thereof.

(2) There may be omitted from any such copy--

(a) any information included in an executed agreement, security instrument 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 thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed

agreement delivered to the debtor under section 63(1) of the Act, the date of the signature by the debtor of an

agreement to which section 68(b) of the Act applies);

© in the case of any copy of an unexecuted agreement delivered or sent to the debtor or hirer under section 62 of

the Act, the name and address of the debtor or hirer; and

[(d) in the case of any copy of an executed agreement given to the debtor under section 77(1) of the Act for fixedsum

credit, or under section 78(1) for running-account credit, under which a person takes any articles in pawn, any

description of the article taken in pawn.]

Page 3 of 31

Either way what they have sent you is unenforceable in a court.

Account in dispute, withhold all payments.

[rhos123]

as bb says, reg ( 1) no cca . reg( 2) account in dispute. reg (3 ) no payment. and i agree 100%

[reallymadwoman]

Without any of the prescribed terms, it is unenforceable.

 

If HSBC are trying to fob you off, then you need to report it to the OFT. Their new guidance on requests under s77-79 of the CCA makes what they're doing misleading and unfair. It's also very stupid, as all they need to do is repopulate a template of the agreement you 'would have' signed, and send you that and it would comply. It still wouldn't be enforceable in court though.

[molly13]

Thank you very much for all responses very much appreciated.

Now on to the next saga regarding DN....

I'll start a new thread regarding this.

Regards

Molly:-)

[molly13]

Hi,

Further to my post HSBC application or Agreement? Sorry I don't know how to link it.

 

I received a DN in 2008 dated 14 xxx arrears of xx to be paid by 28xxxx., received by me on 17xxxx followed by a Final Demand a month later.

It was only earlier this year that I became aware of the significance of the DN dates and I accepted ther unlawful termination. The response from HSBC was:

 

"From the information that you have provided, you advise that you received our Default Notice on 17xxx and that the Final Demand was issued xxx. The statutory period of time between a Default Notice and then the Final Demand is one month, which you can clearly see was adhered to.

As both letters have been issued correctly we lawfully repudiated the agreement, which was stated in the terms and conditions you signed upon opening the account.

A letter was sent to you which proves the account had been properly executed and is legally enforceable."

 

However they have now sent a new DN, giving me 21 days, no date,to pay arrears, and another Final Demand.

 

What I would like to know is:

How can they issue another DN and FD when they have already admitted that they have repudiated the agreement? lawfully or not? To my mind there is then no longer any agreement to breach.

Am I completely wrong on this?

Thanks in advance

 

Molly:-)

[Bazooka Boo]

Can you scan and post both of them up? Remove all ID, bar codes, ref numbers etc, I am inclined to think that as they have seen the error of their ways which you pointed out to them, they have simply issued you with an enforceable DN, ALTHOUGH!!!!!!! Not stating an exact date also makes it unenforceable, I will dig out the exact reference for this just so you can be confident that is correct, wait one!

[molly13]

Thanks BB

 

I haven't got access to a scanner at the moment, but will try and do it tomorrow from work.

 

But what I don't understand is, that they got my acceptance of unlawful termination, then they say the repudiated lawfully, and presumably, that was the end of agreement.

 

Molly:-)

[Bazooka Boo]

If a creditor just intends to pursue for the arrears, no default notice is needed. By Section 88(2),

any notice after 1 October 2006 must give the debtor at least 14 days after service (7 days

for notices served before 1 October 2006) to remedy his or her breach or before the creditor

proposes to takes further action. Section 176 of the CCA 1974 inserts a presumption that, if sent

by post, a default notice is deemed served on the date it would have been delivered in the normal

course of post. This is the case even if the default notice does not come to the debtor’s attention:

Lombard North Central plc v Power-Hines [1995] CCLR 24.

http://www.hammonds.com/FileServer.aspx?oID=23087

 

88. Contents and effect of default notice.

— (1) The default notice must be in the prescribed form and specify— (a)

the nature of the alleged breach;

 

(b)

if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

 

©

if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

 

(2) A date specified under subsection (1) must not be less than [F1 14] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [F1 14] days have elapsed.

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the [F1 14] days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it [F2 and any other prescribed matters relating to the agreement].

[F3 (4A) The default notice must also include a copy of the current default information sheet under section 86A.]

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=Consumer+Credit+Act&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=436428&ActiveTextDocId=436537&filesize=8186

 

Not 100% sure on the failure to stipulate an exact date action to remedy account, however it MUST be 14 'clear' days OR 7 clear days for notices issued before the 1st Oct 2006.

 

Here is another thread which BRW clarifies it better than I can.

http://www.consumeractiongroup.co.uk/forum/showthread.php?179944

[molly13]

Oops got it wrong:oops:

The "new" DN dated 31xxx to pay by 21xxx.

But I don't believe they have a right to issue a new DN when they admit that they repudiated the agreement and I accepted it before they issued it.

 

Molly