HSBC; Helped needed

[vint1954]

The copy has to be a true copy. It can omit signatures and signature date, but thats about all. This is due to the fact that when the law was written, there were no photocopiers, so the agreement had to be coppied by hand or later on a typewriter, but it had to be a copy of the agreement that you signed. That was the intention of the law, if not it is pointless. How can they confirm that it is a True Copy of the document that was signed.

 

I have had this fight for 7 months with them.

 

They keep insisting that the agreement is a true copy, however I have pointed out that it cannot be on many occasions. The one point that they have not picked up on is that the card was originally with Midland.

Edited September 12, 2009 by vint1954

[vint1954]

Most of the CC companies are trying this tack, where they have no agreement.

 

They know that they are wrong. I have killed 5 trees sending them long letters, explaining where they have failed. They just ignore them, fingers in their ears and La la la la la la.

 

If you have disputed the agreement in detail, not much you can do bar sit back and wait for their next response.

 

These are the arguments that I have used.

 

Dear xxxxxxxxx,

 

ACCOUNT IN DISPUTE

 

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

 

I write regarding recent communication regarding the above account.

 

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 a generic agreement which cannot be linked to any agreement which you claim that I have signed and a set of again unrelated terms and conditions. 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. I have to date only received terms and conditions from yourselves.

 

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. 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.
  

What is a true copy:

 

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.

[vint1954]

No problem, Send it to HSBC.

 

Ms Packwood should have a few of these.

 

I wish it was only 20 years since I left School.

 

However my spelling is aslo imporverting=**

Edited September 12, 2009 by vint1954

[vint1954]

More info in this one. Obviously edit and delete as appropriate.

 

xxxxxx 2009.

 

Dear xxxxxxxxx,

 

ACCOUNT IN SERIOUS DISPUTE

 

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

 

I write regarding recent communication regarding the above account.

 

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:

 

1. Supplying only a generic agreement

2. Supplying only terms and conditions.

3. Supplying an illegible copy.

4. Supplying an application form which does not contain the prescribed terms.

5. Supplying a reconstructed agreement.

 

The documents that you have supplied, 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.

 

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 1,2,3,4, or 5, cannot be a True Copy of an Executed Agreement.

 

You will be aware that the rules and regulations governing regulated credit agreements are in place to protect BOTH lender AND borrower. If the lender fails to follow the rules then the lender must accept the consequences. It is no different from any other branch of the law.

 

What is a true copy:

 

In a recent responses to Letters from a growing number of MP’s, the enforcement department of the OFT responded in writing, where 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.”

 

The above details that any “True Copy” that is supplied by yourselves, must indeed be a copy of the executed ( signed ) agreement and not a reconstruction or fabrication. In short it must be copied from the original agreement, but can for obvious reasons, omit signatures and date of signature.

I also refer you to the information below.

 

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.

 

S61 of the consumer credit act 1974.

 

 

s61(a) CCA - Signing of agreement:

(1) A regulated agreement is not properly executed unless—

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

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”.

 

s127(3) Consumer Credit Act 1974:

 

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer.

 

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.”

While this account remains in serious dispute, I remind you of the 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 or information with a third party such as a credit reference agency. (To register information with a credit reference agency, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.
  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 will be met with a complaint to the Information Commissioners Office)
  
• 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.
  

In addition, as you have sent the above mentioned documents in response to my requests under Section 78 (1) of the Consumer Credit Act 1974, then this statement by you is now binding on you as per section 172 of the Act.

 

Section 172 states:

172 Statements by creditor or owner to be binding

 

(1) A statement by a creditor or owner is binding on him if given under-

section 77(1), section 78(1), section 79(1), section 97(1), section 107(1)©, section 108(1)©, or section 109(1)©.

 

This means that the documents you have sent are the only documents you may now rely on in any attempt at enforcing this alleged debt in the future.

 

 

I maintain that this alleged debt is completely unenforceable under Section 127 of the CCA 1974. The CCA 1974 is clear on what agreements must contain in order to be enforceable, even in court. For full details I refer you to the excellent guidance from the Office of Fair Trading.

 

For cancellable agreements, you can find the guidance at:

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft018.pdf

 

For non-cancellable agreements, you can find the guidance at:

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft019.pdf

 

For your further convenience, I also refer you to the guidance on Debt Collection here:

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

 

At the very least, an Agreement must contain the following within the signature document (on the same side) to be enforceable, even in court (see agreement Regulations 61(1)):

 

1. A credit limit or a statement as to how this will be determined.

2. An APR.

3. A schedule of repayments.

 

These are the prescribed terms as required by the Act and subsequent Regulations. There are also many other things, which are called required terms, that should be in an agreement. These include but are not limited to:

 

1. Details of default charges.

2. Statements of protection for customers.

 

What you have sent me fails to include all of the information needed to make it enforceable, and therefore it is completely unenforceable under Section 127 of the Consumer Credit Act 1974. For your information, you can find a copy of the CCA 1974 here:

 

Consumer Credit Act 1974

 

I am aware that Section 127 was repealed in the Consumer Credit Act 2006 but this is not retrospective and applies only to agreements signed after 6th April 2007 which is not the case here. For information on this, you can see the 2006 Act here:

 

Consumer Credit Act 2006 (c. 14)

 

I refer you particularly to the Transitional Provisions outlined in Schedule 3, which confirm that the repeal of Section 127 is NOT retrospective.

 

You are saying that the documents you have sent me do comply with the CCA 1974. In that case, given the FACTS I have outlined above, perhaps you could direct me to all of the prescribed and required terms in the “Agreement” you have sent me given the fact that it should be on the same page as the signature, I think you will find that they are not there.

 

Once you have confirmed for yourself that they are not there, perhaps you would be so kind as to point me in the direction of the relevant legislation that allows you to enforce an agreement that is clearly unenforceable under Section 127. Again, I think you will find that this legislation does not exist.

 

 

 

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 reserve the right to report your actions to any such regulatory authorities as I see fit.

 

Your further non-compliance will result in complaints being forwarded to the relevant statutory bodies.

 

 

 

I look forward to your response.

[vint1954]

Don't send the whole thing. You will need to edit out as required, especially check the text in red.

[vint1954]

Hi Johnny and bambiniaia.

 

I certainly have been down this very road for some months now.

 

They quote s78 and it's requirements correctly ( Section 78 (1) requires us to provide a copy of the executed agreement.)

 

 

They need to remember however that an executed agreement is one that has been signed!

 

Then go on to quote ( Regulation 3(2) of the Consumer Credit Regulations 1983 (Cancellation Notices and Copies of Documents) allows that certain items may be omitted from such copies, including the signature box and signature.) Correct but inapropriate in my view.

 

Then ( Therefore, the copy of the executed agreement we must supply was a copy; we do not need to provide a photocopy of the signed agreement.) Probably correct, but if they are not going to copy it from the actual agreement, then they are wrong.

 

As the OFT point out:

 

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.

 

"Must be an exact copy and not some reconstruction of what the original might have been"

 

I have been arguing with them since February this year. They stick to their interpretation of the act, simply because they do not have an agreement to send you, as Johnny says.

 

I have just kept on batting it back to them. Once you have proved that their argument and interpretation of the law is flawed, there is little else that you can do.

 

They cannot go to court and win, without the agreement.

 

As Johnny says, if you realy do want a copy of your agreement, then you need to go to court to get it, however that is unlikely to produce what they do not have.

 

The FOS will probably not help but worth a try. They suggest this course as the FOS usually comes down on the side of the creditor, strengthening their case.

 

I always like to have the last letter in the file, so I would just respond along the lines of:

 

Your assertion that you and your client have complied with s78 CCA 1974 is incorrect, as I have clearly detailed to HSBC in writing on xxxxxxxxx.

 

Your suggestion that I refer this matter to FOS, will be followed along with complaints to the OFT, trading standards and my MP.

 

Optional:

 

In addition, as you have sent the above mentioned documents in response to my requests under Section 78 (1) of the Consumer Credit Act 1974, then this statement by you is now binding on you as per section 172 of the Act.

 

Section 172 states:

172 Statements by creditor or owner to be binding

 

(1) A statement by a creditor or owner is binding on him if given under-

section 77(1), section 78(1), section 79(1), section 97(1), section 107(1)©, section 108(1)©, or section 109(1)©.

 

This means that the documents you have sent are the only documents you may now rely on in any attempt at enforcing this alleged debt in the future.

 

 

I maintain that this alleged debt is completely unenforceable under Section 127 of the CCA 1974. The CCA 1974 is clear on what agreements must contain in order to be enforceable, even in court. For full details I refer you to the excellent guidance from the Office of Fair Trading.

 

 

At the very least, an Agreement must contain the following within the signature document (on the same side) to be enforceable, even in court (see agreement Regulations 61(1)):

 

1. A credit limit or a statement as to how this will be determined.

2. An APR.

3. A schedule of repayments.

 

 

 

You are saying that the documents you have sent me do comply with the CCA 1974. In that case, given the FACTS I have outlined above, perhaps you could direct me to all of the prescribed and required terms in the “Agreement” you have sent me given the fact that it should be on the same page as the signature, I think you will find that they are not there.

 

Once you have confirmed for yourself that they are not there, perhaps you would be so kind as to point me in the direction of the relevant legislation that allows you to enforce an agreement that is clearly unenforceable under Section 127. Again, I think you will find that this legislation does not exist.

 

 

About all you can do unless you feel happy going to court.