HSBC no CCA some questions

[upferret]

Hi Ive been through a lengthly process of letter sending with HSBC and theyve not provided me with an enforcable CCA. Ive done a CCA request, SAR, sent many letters and the best they can come up with is a reconstructed application form. The ppi dept did send me my "agreement" for a different reason and it was not worth the paper it was written on, missing many if not all prescribed terms. I Dont think they even have this rubbish agreement anymore because they havent sent it me when I did the SAR. There was no sort of agreement inclded in this at all. Anyway, I have been advised from another forum to stop paying the credit card and see what happens. I have done this and have sent the bank a letter before action saying I'd like my account returned to 0 balance if they cant provide the agreement. They sent me an application form which they have written my name on...and a letter saying that the unenforability law doesnt apply. I'm happy that they havent got an enforcable agreement, but they have ignored my default/account in dispute letters and keep adding interest and charges to the account as well as asking for payment, I thought they werent allowed to do this whilst in dispute/default? Is there anywhere I can report them to for this? Also how is this likely to impact on my credit rating? I've heard you can try to get the defaults removed from your file but this can be long and difficult. So basically if I just leave it now, they will keep adding interest and charges and asking for payment, then somehow try to collect on the debt in court which they wont be able to do, but the debt will still stand so will the amount just keep going up and up? or if they take me to court and lose, will the debt or the defaults be removed and would they stop adding charges? Im just wondering the effects on my credit file thats all, for the future as I didnt expect to get this far!

Thanks

[johnnymitch]

Hi upferret , welcome (back ? ) to the forum ......

 

I think the frst thing you need to do is back them into a corner and get them to admit that they don't have a copy of the agreement -

 

To this end I would send them a letter something like this .....

CCA Call-up letter

Reference ....... (your letter of xx xxx xx)

I am disappointed that you have failed to respond to my request for a copy of my Credit agreement to which I am entitled under the Consumer Credit Act 1974 (Sections 77−79). A copy of this letter is attached for your convenience.

I have previously enclosed a payment of £1.00 which represents the fee payable under the Consumer Credit Act.

I understand a copy of our credit agreement should have been supplied within 12 working days.

I am sure you also understand that under the Consumer Credit Act creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

Failure to respond positively will be reported to the Financial Ombudsman Service and the Office of Fair Trading.

 

Yours faithfully

 

You could add :

"PLEASE NOTE that unless otherwise stated by yourselves and if the above documents are NOT provided, it will be CONFIRMED that you are unable to reproduce/provide in any way shape or form any copies of the above requested documents. You are reminded that you have a duty to inform me if you do not have the above documents. This is confirmed in High Court Law - Ezsias v Welsh Ministers - [2007] All ER (D) 65 (Dec) "

 

 

I think the last bit is the clincher ....... if they haven't got it, they have to tell you in writing. - you can then proceed to apply to get your default removed - on the grounds that the account was in dispute when they defaulted you .... and that without an agreement there can be no default .

Once you have this admission , you can also report them to the FOS and ask that they help you in your bid to get the default removed - as well as reporting HSBC for failing to produce an acceptable copy of the agreement .

I also don't know where they're coming from in saying that the unenforceability law doesn't apply ..... so keep that letter safe , it's evidence if you need it that they have misled you ...if not worse - did they quote why it wasn't applicable?

Some others may have an input here too , upferret ,because I haven't covered all your points - and it would be handy to have corroboration of my thoughts on it ..... but come back anytime and ask if you're in doubt , you'll always get an answer on here .......

[upferret]

Thanks very much for replying. I think my last letter "letter before action" pretty much said what you suggested, that I required the agreement or written clarification that they do not have it. They've sent me the application form with my name written in, and in the letter they sent they seem to think that is the agreement I'm after, even though I clearly said in my letter - " For the avoidance of doubt, an application form, copies of only the terms and conditions, a sample or new credit agreement or a reconstructed agreement will not suffice" So they have not admitted to not having it, neither have they supplied it, and have tried to fob me off again with an application form. As for them stating the law wasnt applicable, they said it was because the law was only to stop creditors enforcing the debt in court, and the debt would still stand. which is true, but if they cant enforce it whats the point? It seems to me that theyre trying to bluff their way out of it, in the hope that I do not understand what they are talking about. So how do I go about reporting them?

Edited August 2, 2009 by upferret

[johnnymitch]

They're right about that , upferret , the debt still stands - it doesn't go away - but they can't chase you for it .... which , as you say seems a bit pointless , but that's what unenforceable means .

 

However, leaving that aside, they still have to confirm to you that they cannot produce the agreement ...... so that you can move this on ....

[upferret]

I know, but they never admit it! just keep sending me the application form...I get the feeling they would go on like this forever. I clearly stated that the application form wouldnt do. i've done a subject acess request, which produced no agreement, I thought by law they had to include an agreement in a SAR if they had one? which is why I would like to report them for not producing one despite being asked many times.

[johnnymitch]

They do have to produce whatever they have on you upferret . If they haven't and you've asked them more than once , report them to the ICO

 

Information Commissioner's Office - ICO

 

This is blatant disregard of the rules , and the High Court ruling* which says they have to confirm that they haven't got the documentation which you require..

 

*Ezsias v Welsh Ministers - [2007] All ER (D) 65 (Dec) "

[johnnymitch]

Your only other option , upferret is to take the court route , as did lee32uk :

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/188794-hsbc-cca-non-compliance.html

 

It's a big thread, but has a wealth of information in it .....

[upferret]

Thanks for your help. Ill have a read of the posts you suggested.

[lee32uk]

Heres the link to my other thread re taking RBS to court for non compliance

 

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/200771-starting-court-claim-sar.html

[upferret]

Thanks very much lee32uk! I think I'm at the point where I need to start court proceedings, I wrote them the following letter

 

LETTER BEFORE CLAIM - DO NOT IGNORE THE CONTENTS OF THIS LETTER

On the 31st March 09 a Statutory request, made under the provisions of section 78(1) Consumer Credit Act 1974, was sent to HSBC Bank Plc by Royal Mail Special Delivery requesting that you supply me with a true copy of the credit agreement for the above account.

HSBC Bank Plc has to date, failed to comply with my request for the relevant information in that the document that was eventually sent to me appeared to be no more than your current Terms and Conditions and a blank Application Form, not a properly executed credit agreement or indeed any sort of credit agreement with the correct prescribed terms within it. Despite 4 further letters (Sent on 16th April 09, 22nd April 09, 8th May 09 and 6th July 09) reminding your company of its obligations you have totally ignored my correspondence.

I would remind you, should a creditor fail to comply with a request for information under s.78(1) they are constrained as to what enforcement and collection activities they may pursue and the debtor is not obliged to offer any payment in respect of a disputed account.

On 2nd June 09 I made a Subject Access Request, sent by Royal Mail Recorded delivery, pursuant to the Civil Procedure Rules (Pre-action protocols) for a signed agreement for this account. Again my lawful requests were not complied with and I received no credit agreement.

I now require this matter resolved as a matter of urgency, therefore, I require your action on the following within 14 days of your receipt of this letter:

1). You supply a true copy of the signed credit agreement for this account along with the related terms and conditions current at the time of signing. (For the avoidance of doubt, an application form, copies of only the terms and conditions, a sample or new credit agreement or a reconstructed agreement will not suffice).

2). You enter into correspondence with me to resolve the matter to the satisfaction of both parties.

If you are unable to supply a true copy of the agreement as described above, for whatever reason, I require written clarification of this plus written confirmation that the account has been discharged and ‘account satisfied’ recorded with all credit reference agencies. I also will seek to reclaim any interest I have paid since the account entered default, plus the PPI premiums with interest (As the PPI was mis-sold to me as I stated in my letter on the 22nd March 09) as well as any fees I have had to pay to you to request a credit agreement.

It is my intention, should you fail to reply to this letter or comply with my requirements within 14 days, without further notice, to commence litigation against your company by issuing a claim in the County Court for a judicial ruling on the enforceability of the agreement under s.142(1) Consumer Credit Act 1974 as I am of the opinion that if an enforceable agreement existed you would have sent me a copy by now.

I will also seek any quantifiable damages and removal of all adverse data, which you or associate companies may have added to my credit file since you entered into default of my request for a true copy of any credit agreement for this alleged account.

Please be aware that under the Civil Procedure Rules, should I issue such a claim you will be required to provide the information I have lawfully requested by order of the court. Therefore it would be better and less costly for you resolve this issue now.

In this respect I am mindful of the Overriding Objectives, and in particular the duty of the parties to help the court further them, that the issues outlined above are the crux upon which this claim rests and in identifying these issues will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

If you are unable to deal with my requests you should pass this letter urgently to someone who will. I expect your due diligence in this matter."

 

This is the one they replied to with a "reconstituted application form" They actually said on the letter "in response your letter dated 3rd June" but it was obviously in reply to this latest one, must've been a typo.They only took a few days to reply, whereas they've always took ages before, I think the fact I stopped paying the account at this point hurried them along a bit! so am I at the starting court action bit now?

Thanks

 

 

 

[Castlebest]

Banking group HSBC saw pre-tax profits halve to $5bn (£2.98bn) in the first six months of 2009.

 

dont you feel sorry for them some of that £2.98 billion is yours go get it back

 

pete

[upferret]

Banking group HSBC saw pre-tax profits halve to $5bn (£2.98bn) in the first six months of 2009.

 

dont you feel sorry for them some of that £2.98 billion is yours go get it back

 

pete

 

ok, so I'll take that as a "yes" then?

[upferret]

I've looked throught the posts, can someone please confirm my next steps are to report them to the ico, then fill in and send off form N1?

[johnnymitch]

I don't know what joy you'll get from ICO , upferret, but if you go that route you'd have to wait for them to come back with advice , etc ..... before you could reasonably take court action ...

 

So , maybe better to cut to the chase and get your N1 under way - I think you've given them plenty of chances to produce what you want - now it's time to force them to produce or admit they haven''t got it .

[upferret]

Ok I'll do that! Thanks for all your help again

[upferret]

I've been trying to get my N1 form filled in but I keep going round in circles as to where I'm supposed to start! Is there a step by step guide on here anywhere? I keep reading about N1 forms but Im finding it a bit overwhelming.

Edited August 19, 2009 by upferret

[lee32uk]

Are you using the N1 form to seek compliance of the SAR?

 

If they have sent you a 'reconstituted' agreement/application form then you know they don't have the original This is the same responce I had when they admitted they dont keep documents prior to 2003.Mine has now been sold to capquest.

[upferret]

yes, they sent me a reconstituted application form! Also the ppi dept sent me a copy of my agreement, which was missing nearly all of the prescribed terms and is unenforcable. They have not sent me this agreement in response to me asking for it, I dont know if it is now lost, or they know it is unenforcable so arent sending it me in the hope I will give up. So they either have an unenforcable agreement they are ashamed of, or theyve lost it and have none1 I just need them to admit it.. So I assume I'm still correct to start a claim and fill in an N1 form? I think Ive found a guide to filling it in and have made a start. how do I go about calculating damages to reclaim? also where do I list these damages? Its all so complicated!

Edited August 19, 2009 by upferret

[upferret]

ok, I think Ive filled it in apart from the damages amount...I dont think I have to pay the court fee of £36 as I get income support, so I cant claim that back .. I paid £11 in total for the CCA request and SAR, what else can I include? Ive written about 8 letters to them which Ive sent recorded or special delivery, can I claim for time spent writing these and postage costs?

Edited August 19, 2009 by upferret

[upferret]

Can someone help me please....Ive sent the allocation questionnaire in already, but now someone has told me I'm unlikely to win this case and I would have to pay HSBC's court costs! They say that because theyve sent me an application form filled out by them,(they sent this after the Subject Access Request, not with it) that this counts as them complying with the Subject Access Request. Is this true? They also told me I shouldnt have tried to get expenses back either. Im really confused and worried now, I thought it was a straightforward case that I would win as theyve not complied. What do I do now?!

[johnnymitch]

Thanks for switching your thread upferret,

 

Now , let's address this logically - you are taking them to court because they have failed to produce the documentation you require and have instead sent you a 'bodged-up' application form and are trying to say that they have now complied ?

 

I would say(IMHO) that they are trying to put you off from continuing with your court action because they haven't got a case and they know it . As I said (on the other thread) .... if the 'someone ' who told you that you weren't likely to win it is not a legal expert ... take no notice ..... if it was DG solicitors .....they've got a vested interest....

 

As for expenses ..... this is a bit of a lottery, but I think judges usually expect a reasonable claim for expenses and as long as you're not claiming ridiculous amounts they may grant them ...... I say 'MAY' because there is no way to work out which way judges are going to jump sometimes .....

 

The main question , which would determine your further action is : have they fully complied with your SAR...... if not - carry on , you seem to have exhausted all other options ....

 

Maybe someone else on here will have a different view , but for what it's worth upferret - that is mine

[upferret]

Thanks. the other person Im told is a litigator and helps people on the moneysupermarket website on the forums. They seem to know what they are talking about and are regarded as an expert. Himself and other people have told me that hsbc have complied with the law because they sent me a reconstituted agreement. (the law is loosely worded and sending me almost anything would comply) so my case would fail. They have recommended that I serve a notice of discontinuation on the case, and either start a new claim for a disclosure notice for a copy of the origional agreement or to do nothing and leave it to hsbc to prove that they DO have a valid agreement.

[johnnymitch]

Hi upferret ,

 

Have a look at this link , it might help ... although it seems to deal with individual cases, (each on it's own merits) , it does sort of define a 'Reconstituted Agreement' .........

 

Analysis - Banking update: report and review on recent cases and issues - Wragge & Co - UK Law Firm

[upferret]

This is the original blank version they sent me, the reconstituted one is exactly the same only it had my details filled out:-

[johnnymitch]

I take it there is no signature on the Reconstituted one ? This looks to me like a Request Form .......how can they say the agreement was accepted by both parties .... without signatures ...IMHO a blank 'Reconstituted Form' surely cannot hold up in court ...

 

I'm willing to be contradicted , but can't see how it's a legal document in it's present form. They could use your details to bodge up any old agreement in that case .......

If they've got the original - why don't they produce it -