@hsbc_uk_help Old HSBC Credit Card debt - No CCA - scotcall doorstepper

[experience]

Have had a few default notices from DG solicitors so i sent them a CCA request on 17th july.

They responded asking for my signature as attached

 

 

The 12+2 days for CCA request is now up - should i now respond saying the account is in dispute or send them a digital signature? I was thinking of the following:

 

DG Solicitors

12 Calthorpe Road

Edgbaston

Birmingham

B15 1QZ

Dear Sir/Madam,

 

Re: - Account No:

ACCOUNT IN DISPUTE

 

Re: My request under the Consumer Credit Act 1974

 

Further to my request under the above act, your attention is drawn to the fact that this account is subject to a serious dispute. On 17/07/09, 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. 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.

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing ( 12 working days + 2 ) to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly as no agreement has been supplied on request, you have not complied with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in S.78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(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 (whether or not in the prescribed manner).

 

This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

 

To clarify S.61(1) states

 

(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

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as you become compliant with my request. As you are still not in compliance with my request I insist that the following takes place with immediate effect.

 

All entries which refer to missed payments be removed from my credit file

All collection activities cease with immediate effect until you comply with my request from 17/07/09 or such time as a court makes an enforcement order.

In addition, I draw your attention to the Office of Fair Trading’s guidance on Debt Collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

What I Require.

 

I require that you send me a true signed copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

I trust this out lines the situation

 

Yours faithfully

[42man]

Or this one

 

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/572-debt-letter-when-company-refuse-cca-due-to-no-signature-

[debt4get]

under no circumstances send them a signature, they know who you are... they wrote to you saying you owe them this money.. if its good enough for that then what you sent asking for cca is good enough

[debt4get]

the one 42man supplied looks like it should do the trick

[experience]

Superb - i'l send them the one 42man supplied today by recorded delivery.

[Deb T]

under no circumstances send them a signature, they know who you are... they wrote to you saying you owe them this money.. if its good enough for that then what you sent asking for cca is good enough

 

To help me understand...why not send them a squiggly line...would that not suffice or does it allow them to copy the squiggle etc...

[experience]

Just sent the letter - will let you know what happens next

[Huff&Puff]

To help me understand...why not send them a squiggly line...would that not suffice or does it allow them to copy the squiggle etc...

 

In my view this is a good course of action. Or you can use one of the many signature fonts that are freely available to download. I would just love to catch a DCA mocking something up with one (and they can look very realistic when printed on a colour laser).

[angry cat]

Signature legal definition of Signature. Signature synonyms by the Free Online Law Dictionary.

 

AC

[Deb T]

Signature legal definition of Signature. Signature synonyms by the Free Online Law Dictionary.

 

AC

 

That is an American website and details contained within it refer to the relevance in certain American states.

 

Whilst it's an informative link I don't think it should be seen as how the UK Debt/Justice system sees/interprets a signature.

[experience]

Requested my SAR from HSBC back in April, they responded saying they couldnt do it without a signature.

 

I sent them a 2nd letter using a template from this website, again didnt sign it and they responded saying the SAR had been sent to my local branch ready to collect informing me to bring ID such as my passport or driving license.

 

I went into my branch yesterday and the member of staff gave me a form to sign - to avoid hassle i signed it using a squiggle which was completely different to my normal signature. She then looked up the signature on the system and noticed it didnt match, looked at my driving license and asked why my signature i just signed differed. I explained i didnt want to sign for my SAR and she refused to give me it as it was branch policy. The signature she could see on my driving license and passport matched the one on the system.

 

I asked her to put it in writing, so she went off to her manager for approx 30 minutes and the manager eventually gave me a letter addressed to myself:

 

Release of Personal Information under The Data Protection Act 1998

 

I have been unable to release the requested documents to Mr XXXX as the signature he has provided to us does not match the signature held in our records

I informed her that i didnt have to sign for my SAR under the Data Protection Act guidlines but she kept repeating it was branch policy. I asked her if she had consulted her legal department as they could get fined for refusing my requested data, and she said her manager had called them which is why it took so long.

 

So what do i do now... complaint to ICO and wait ?

[citizenB]

I think you might have to telephone the Information Commissioner yourself. Whilst there is no requirement for you to sign your letters / SAR to them. They are allowed to ask you to identify yourself. You were asked to take in photo ID, not that you would have to then sign as well!!

 

Having said that, I suspect that ICO will side with the bank.. !!

[Conniff]

You should have asked if they got the signature of the Columbian drug barron they have been laundering money for, or the Iran president that they have been sanction busting for.

 

You are correct in that you do not need a signature, I can't remember which reg says that at this moment but perhaps someone else will come up with it before I can find it.

 

As they have your sig on file already, why don't you want to sign again ?

[experience]

Its very annoying, clearly my passport and photo driving license confirmed who i was

 

However branch policy comes before UK legislation

 

I've printed out an ICO complaint form and am just sending it now - are the ICO really like to side with the bank?

[Old Cogger]

on picking SAR up from Branch they insisted that I sign so I did, with 3 XXXS thru it the woman smiled and nodded her head.

[Old Cogger]

HSBC have been pulled up on SAR data etc so keep complaining.

[experience]

ICO complaint sent - should i just wait for the ICO to respond and if so any idea approx how long it will take?

[Old Cogger]

They acknowledge pretty quick giving a case number, then the wait starts could be weeks or more, just have to sit tight and wait.

[citizenB]

ICO complaint sent - should i just wait for the ICO to respond and if so any idea approx how long it will take?

 

They will likely acknowledge your email and possibly give you a time in which they will respond.

 

It could be a few days, if it becomes complex, then it could take longer.

 

TBH, you never really know how the regulators will respond !!

[experience]

Cheers guys -i'll let you know how i get on

[experience]

I received a letter from the ICO confirming they had received my request and would get back to me.

I also sent a letter before action to HSBC and have heard nothing back in over 3 weeks (gave them 14 days to respond)

I now want to proceed through the small claims court and want to seek damages for a few hundred pounds + costs.

Can anyone recommend any other topics or templates that may help me prepare my court application?

[experience]

I managed to find a topic for the particulars of case - i presume i file this with MCOL (Money Claim Online) for the HSBC head office in Canada Square, London using form N1?

 

Order under Section 7 and Section 15(2) of the Data Protection Act 1998

PARTICULARS OF CLAIM

 

1. The Defendant is a Data Controller within the meaning of the Data Protection Act and is responsible for the processing of data of which the Claimant is a Subject.

2. The Claimant had an account number xxxx xxxx xxxx xxxx ("the Account") with the Defendant.

 

3. On xx/xx/2012 the Claimant sent a Subject Access Request, pursuant to Section 7 of the Data Protection Act 1998 to the Defendant.

4. The Defendant has failed to comply.

5. By virtue of the Defendant's failure to comply with the Subject Access Request the Claimant has suffered damage and distress.

6. The damage and distress caused is:

Extra costs incurred in addition to court costs, due to the Defendants failure to comply - this includes the cost of additional correspondence, time spent preparing documents and seeking legal advice, and time / embarrassment spent travelling to branch and waiting in branch whilst they dealt with my request, I estimate this cost to be £200

7. The Claimant seeks an order that the Defendant do comply with the Claimant's Subject Access Request

8. Under the terms of Section 15(2) of the Data Protection Act 1998, where the Defendant contests that information requested under the Claimant's Subject Access Request is not included within the scope of Section 7 of the Data Protection Act 1998, the Claimant requests that the Court inspects that information, and where it finds that the Defendant's opinion is unfounded, that it orders such information be included within the information supplied to the Claimant under the Subject Access Request.

9. Damages and costs within the discretion of the Court.

 

I believe that the contents of these particulars of claim are true

 

Signed:

 

Date:

 

Also when filing the case with MCOL - should i send particulars to the defendant?

Edited September 5, 2012 by experience

[Old Cogger]

HSBC Group Data Protection Manager, HSBC Plc, 8, Canada Square, London E14 5HQ.

 

C.E.O Mr Staurt T Gulliver.

 

 

Love to see Gullivers name on a N1, bet he run back to H.K. for a break fast.

[citizenB]

experience, before submitting - wait for someone to confirm all is ok and that you are following the correct procedure. I have flagged your thread for those who will know.

[citizenB]

experience.. some advice for you.

 

 

It would have been far easier to sign and mark the sig with crosses as advised by Mike or make it unique in some way.I accept that HSBC are a law onto them selves but this is a claim which I feel is unnecessary.If the OP wishes to proceed I would exclude the £200 request and leave it to the total discretion of the Court on the question of compensation.