No CCA but was signed after april '07

[garyb17]

Hi,

 

I have recently got a response from HSBC saying they are unable to find my CCA for a £3000 Loan.

 

So today i sent the 'account is default' Letter but have looked further into this and i got my loan after april 2007. Does this change anything? e.g As they dont have my cca does that still mean the debt is unenforacble or not? :confused:

[garyb17]

[blueda]

Hi garyb17, no valid CCA request means account in dispute whether before or after 07, you can withhold payments until a CCA copy is provided, if this were to happen then you would have to start paying them again, that is if they have a CCA.

[garyb17]

Hi,

Got a reply today from HSBC in response to my letter telling them the loan in unenforceable due to not having a CCA. This is there response:

I would like to clarify that the absence of any loan agreement does not render the contractual relationship between HSBC and yourself as unenforacble. You have had the benefit of monies withdrawn under the credit agreement and these remain lawfully due and owing to HSBC bank Plc. HSBC will exercise its right and proceed to recovery of the same and will contact credit references agecnies, as it is entitled to do so.

* So are they right? or is this rubbish? If so does anyone have a template letter i can send them?

 

Thanks everyone

 

Gary

[diamondgirl]

I'm sure I've seen a letter somewhere, I'll have a look around.

 

I'm also sure someone will probably come up with it before I do.

 

Surely they can't have lost one so relatively new already.

 

The account remains in dispute until they can prove otherwise.

 

DG

[garyb17]

Thanks Diamond Girl. Anyone have the account in dispute letter?

 

Cheers

[diamondgirl]

Amend as necessary

 

Account In Dispute

 

Dear Sir/Madam

 

Ref:

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me with a true copy of the original Consumer Credit Agreement for the above account.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

 

You have failed to comply with my request, and as such the account entered default on xxxxxx.

(12+2 days after you sent the CCA request – Delete this line)

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore, you are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation. This limit has expired

 

As you are no doubt aware section 77(6) states:

If the creditor fails to comply with Subsection (1)

(a) He is not entitled, while the default continues, to enforce the agreement. Therefore, this account has become unenforceable at law.

 

As you have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, failed to send a full statement of the account and failed to provide any of the documentation requested. Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS. Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends. If you not respond within 14 days I shall take it that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.

 

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

 

* You may not add further interest or any charges to the account.

 

* You may not pass the account to a third party.

 

* You may not register any information in respect of the account with any credit reference agency.

 

* You may not issue a default notice related to the account.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit. You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint. I therefore request a copy of your official complaints procedure which you are obliged to supply.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully,

 

A N Other

DG

[garyb17]

Hi,

 

Thanks for posting that. This is the letter i sent them and below is what they replied to me:

 

would like to clarify that the absence of any loan agreement does not render the contractual relationship between HSBC and yourself as unenforacble. You have had the benefit of monies withdrawn under the credit agreement and these remain lawfully due and owing to HSBC bank Plc. HSBC will exercise its right and proceed to recovery of the same and will contact credit references agecnies, as it is entitled to do so.

Anyone know what i can say back or have a template?

Thanks for your help:)

[garyb17]

Ive found this. Is this the right one?

 

Address

 

Date

 

Dear Sir/Madam

 

I refer to your letter dated (date) in which you confirm that you are unable to comply with my formal request pursuant to s.78(1) of the Consumer Credit Act 1974. However, despite being in default of my request, you have continued to make unlawful demands for payment contrary to s.78(6) of the CCA 1974 and the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

 

I note that the Credit Services Association, in the first paragraph of its Code, state that members must act lawfully at all times. Furthermore, under the CPUTR 2008 failing to comply with a code of conduct to which you have subscribed is unfair trading.

 

In the circumstances, I will not enter into further correspondence with you, and any further unlawful demands or contact will be viewed as harassment and reported to the appropriate enforcement agency.

 

Finally, as you have failed to comply with my request, I require you to return the £1.00 fee without delay.

 

Yours faithfully.

[havinastella]

Hi Gary,

 

You need the letter telling them that you are suprised that a company of their size can misplace such an important document letter.

 

It also quotes the relevant money laundering regs.

 

I'll have a look for it

 

Jogs

[garyb17]

That will be great. Thank you

[garyb17]

Hi Jogs,

 

Have you found the template? Hoping to reply to HSBC this week

[blueda]

Here is a link for templates

The Consumer Forums - Debt collectors

[garyb17]

Thanks. I have already sent the account in dispute letter and HSBC replied saying:

I would like to clarify that the absence of any loan agreement does not render the contractual relationship between HSBC and yourself as unenforacble. You have had the benefit of monies withdrawn under the credit agreement and these remain lawfully due and owing to HSBC bank Plc. HSBC will exercise its right and proceed to recovery of the same and will contact credit references agecnies, as it is entitled to do so.

So what do i send now please?

[blueda]

I have a letter that i can print on here, it is quite long, so it will take me a bit of time, probably not tonight but i will get it on.

[garyb17]

Ok thank you

[blueda]

As you have failed to comply with a lawful reqest for a true, and signed copy of the said agreement and other relevent documents mentioned in it, failed to send a full statement of the account and failed to provide any of the documentation requested. Consequently any legal action you pursue will be averred as both unlawful and VEXATATIOUS.

Furthermore i shall counterclaim that any such action constitutes unlawful harassment. Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease any Data in relation to this account with immediate effect.

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference Agencys.

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my Data. It is not sufficient to simply state that you have a legal right, you must outline your reasoning in this matter and state upon which legislation this reasoning depends. Should you not respond within 14 days i expect that this means you agree to remove all such Data. Furthermore you should be aware that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute or as such the following applies.

YOU MAY NOT DEMAND ANY PAYMENT ON THE ACCOUNT, NOR AM I OBLIGED TO OFFER ANY PAYMENT TO YOU.

YOU MAY NOT ADD FURTHER INTEREST OR ANY CHARGES TO THE ACCOUNT. YOU MAY NOT PASS THE ACCOUNT TO A THIRD PARTY.

YOU MAY NOT REGISTER ANY INFORMATION IN RESPECT OF THE ACCOUNT WITH ANY CREDIT REFERENCE AGENCY.

YOU MAY NOT ISSUE A DEFAULT NOTICE RELATED TO THE ACCOUNT.

I reserve the right to report your actions to any regulatory authorities as I see fit. You have 14 days from recieving this letter to contact me with your intentions to resolve this matter which is now a formal complaint. I therefore request a copy of your official complainta procedure which you are obliged to supply.

I would appreciate your due dilegence in this matter.

I look forward to hearing from you in writing.

 

YOURS FAITHFULLY

 

(print name) DO NOT SIGN IT!

[garyb17]

Hey,

 

Thank you for posting that. This is the letter i already sent to HSBC. And the response i got was this :

 

I would like to clarify that the absence of any loan agreement does not render the contractual relationship between HSBC and yourself as unenforacble. You have had the benefit of monies withdrawn under the credit agreement and these remain lawfully due and owing to HSBC bank Plc. HSBC will exercise its right and proceed to recovery of the same and will contact credit references agecnies, as it is entitled to do so.

So basically i sent that template saying the account is in dispute and they replied and said no it isnt and refused my requests. So im not sure what to send them now?

Thanks for your help everyone

Gary

[havinastella]

Hi Gary,

 

sorry I can't find the one that i want (new pc ;( )

 

But have a look at this one

 

Dear Sirs,

 

Account in Dispute

 

Account No:

 

I wrote to you on (whenever) under the Consumer Credit Act, 1974 requesting a copy of the agreement to which you allege I am a signatory. Enclosed with that letter was the required fee.

 

You supplied a copy of a blank generic document with no prescribed terms. Neither were current or historic terms supplied. This unfortunately does not comply with my request.

 

Since then, I have been harrassed by DCA (you can name them) and your solicitor, Sechiari Clark & Mitchell.

 

If you are unable to provide a copy of the original document please say so. Meanwhile, having been in touch with the Office of Fair Trading regarding this matter, this is what they have to say.

 

“We have noted your concerns regarding the provision of a copy of the executed credit agreement and would like to make the following comments.

 

The general effects of sections 77-79 requires the creditor/owner (in the case of a hire agreement) under an agreement for (fixed -sum credit, running account credit and hire agreement) to provide the debtor/hirer with a copy of the executed agreement and a statement of account on request.

 

If a creditor/owner fails to comply with a valid request within a period of 12 days (not including the date of receipt of the request) he may not enforce the agreement at all. This prevents enforcement with or without a court order.

 

We do understand your concerns in this matter but please do remember however that once the creditor/owner complies with the request albeit out of time, he may once again enforce the agreement.

 

A ‘true copy of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement. The name, address and signature of the debtor do not have to be provided. Additionally, the creditor must supply the total sum paid under the agreement by the debtor; the total sum which became payable under the agreement but remains unpaid; and the total sum which has become payable under the agreement but remains unpaid by the debtor (the latter two must include the amounts comprised in that total sum and the date when each is/was due). However, the copy must be a copy. It need not be exact on immaterial points, but cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody would know what was in the original. When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently, he cannot otherwise.

 

We note your concerns that in the absence of a copy of the original agreement someone’s liability for a debt can only lead to further query. However in circumstances like this we would view it as an Unfair Practice under section 25(2)d of the Act and relevant to licence fitness if a trader failed to investigate and to provide details as appropriate when a debt is queried of disputed.”

 

In addition to the above, I am sure you are aware of the need to preserve statutory documents :

 

Document Retention

 

According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

 

As a loan agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - after the end of the relevant accounting period. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

 

Finally, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007. “

Please note, that I will not communicate with you any further on this matter, unless of course you decide to proceed to litigation. In which case I would expect a properly executed Regulated Credit Card Agreement that contains all of the Prescribed Terms within the four corners of it, attached to the claim form.

 

Yours sincerely,

 

 

You can adapt this!

 

Jogs

[garyb17]

Thank you so much for this Jogs! Il be adapting and sending tomorow.

 

 

Will keep you posted,

 

Cheers:)