iiyama v HSBC

[iiyama66]

After banking with Midland then HSBC i decided to reclaim bank charges that HSBC started to apply to my current account.

 

I had a £500 O/D which I was starting to exceed, so I requested that my limit be increased to a £1000, this was brought forward one month when I knew that my pay was short compared to my usual take home pay. HSBC declined this and then applied £250 in charges as I had exceeded the £500 limit. Obviously this then put me in a situation were i was forever in a cycle of exceeding my limit and having what i believe to be excessive charges often £150 a month applied.

 

Due to this situation I decided to reclaim the excessive charges. Following advice i sent off letters using templates on this site with the usual response from HSBC. So in August 2009 I started court proceedings and opened a new current account with a different bank, my claim is for £1800.

 

Whilst the first phase of the action was proceeding HSBC continued to apply charges to my account, which meant the account was £950 O/D by the time the claim was stayed.

Since the judge on 18th Sept 2009 stated the claim was stayed HSBC have stopped applying such excessive charges but continue to apply interest of around £15 a month.

 

Since this judgement HSBC have 'reviewed' my agreed O/D limit and withdrew it. On Nov 9th 2009 HSBC have written to me informing me that they will 'default' my account and informing all credit agencies if the account is not settled within 28 days of receiving the letter. They phone me on my mobile and land line daily, even after I have written to them requesting that they only correspond via letter.

 

Can HSBC do this if the account is in dispute and stayed by the courts? Any advice regarding how to respond and proceed from here?

 

Thanks in advance for any advice

[iiyama66]

Thank you both for such detailed info and links.

 

BankFodder I am v much up for a fight! How do I go about applying for an application? Will I have to pay up front? Could you point me in the right direction on how best to prep for it?

 

Jonnymitch,

 

Hope so!!!!

[iiyama66]

Bankfodder,

 

I will make time, the way HSBC have behaved towards me an others have made me determined to fight them all the way. Money, that's different but I hope to borrow it so I can get this started ASAP.

 

I will report back on the outcome, plus I will send off the letter to HSBC, OFT and FSA.

 

Thanks once again

[iiyama66]

Thanks for all the quick replys and advice links etc!

[iiyama66]

I will attempt at filling in the form and post (if possible) or could i email it to you BankFodder to see if its ok?

 

Just that this isn't really my strong point writing all this legal stuff and I dont want to get anything wrong!!

 

iiyama

[iiyama66]

Bankfodder i have sent you a message with my phone number.

 

I have sent of letters to HSBC, FSA, and the OFT. I have taken tomorrow of from work so i can visit the courts!

[iiyama66]

Bankfodder,

 

I have sent you an email.

[iiyama66]

BankFodder,

 

Your box is full!

 

I have sent an email to the address you have supplied, admin... and also the auto reply message when your inbox is full.

[iiyama66]

Time for an update!!

 

As advised i sent off a letter to HSBC, FSA, and OFT re conduct of HSBC re my stayed account, this was sent on Friday 13th Nov, special delivery.

 

Due to the content and nature of the letter and advice from forum members I decided to take immediate action. I used and altered the letter template Bankfodder had posted and then completed a N244 form asking for an emergency interim injunction against HSBC.

 

I also put a 'pack' together with supporting evidence of why I felt it was needed for an emergency injunction to be implemented. I copied the letter from HSBC dated the 9th Nov stating that they would default my account with all credit agencies if no payment was made within 28 days of receipt of the letter, copies of all court paperwork relating to the stay, evidence of the harassment via telephone from HSBC, letters requesting that HSBC only contact me via letter, copies of statements showing that HSBC are still applying interest to my account every month,and a letter to the judge again outlining my concerns and the clear abuse of current regulations and the abuse of the legal process.

 

1st Template

I respectfully request that the court orders the defendant bank, HSBC, to cease all enforcement activity in respect of the sum claim by me in my claim number ******* dated the ********* and also in respect of any subsequent bank charges related matters in which the defendant alleges that I am indebted to them.

 

Background -- summary

 

HSBC are the defendants in a claim brought by me for the recovery of bank charges.

 

The claim for the recovery of bank charges was stayed by the courts on *********

 

Despite the fact that the defendant bank has the benefit of a stay on any further progress on the claim against them,

they have continued to levy charges

they have continued to apply interest to the further charges and also to the sum being claimed and which is the subject of the stay

they are carry out enforcement procedures against me in relation to the further charges and in relation to the sum which is subject to the litigation

they are now proposing to enter defaults onto my credit file with the credit reference agency in respect of all the above sums

despite the fact that I have asked them not to, they are telephoning me daily both on my landline and also on my mobile telephone number demanding payment and making threats. This is causing great inconvenience and distress to myself and family. I have attached to this application a separate statement giving some details of the telephone calls that we have received and the distress that has been caused. Im also attaching copies of correspondence to the defendants requesting that they refrain from making telephone calls which they have refused to do.

 

Legal position in respect of bank charges

 

It is well known that the bank charges which are the subject matter of this ongoing litigation -- as well as the further bank charges and related interest which are being loaded onto my account by the defendant, - are in dispute.

The question of the status of bank charges has been the subject of litigation between the OFT and eight UK banks July 2007

the defendant bank is one of the parties to this litigation

there have already been decisions in the High Court and also the Court of Appeal against the banks.

A final appeal has been made by the banks to the Supreme Court which is shortly to hand down his judgement

it is widely expected that the Supreme Court judgement will confirm the decision of the lower courts

 

Legal position in respect of credit file entries

 

Paragraph 13 (6) of the Banking Code of Practice makes it clear that some is in dispute are not to be placed on the credit reference agency register

guidance offered by the Information Commissioner on 2nd August 2007 makes it clear that sums in dispute are not to be defaulted on the credit reference agency register

the banking code of practice provisions are binding on the bank both as a matter of implied contractual terms and also more recently because they are now incorporated into the new FSA Banking: Conduct of Business Regulations which are binding on all banks.

It is submitted that guidance supplied by the Information Commissioner is highly persuasive as to the interpretation of the provisions contained in the Data Protection Act 1998.

 

Abuse of process

 

It is respectfully submitted that for the defendant bank to continue this enforcement activity in respect of bank charges which they know are the subject of test case litigation and which they themselves are a party -- and in particular to continue enforcement activity in respect of a sum which is specifically the subject matter of a state claim in the County Court, is an abuse of process

the stay which has been imposed on my claim is in effect a "ceasefire". However it is submitted that the defendant bank is not adhereing to the letter or to the spirit of the stay.

 

Claimant's chances of success

 

It is submitted that I have a very high chance of succeeding when the court stay is finally lifted and the matter proceed to trial.

The High Court and the Court of Appeal have both found in favour of the OFT position -- that bank charges are subject to the Unfair Terms in Consumer Contracts Regulations 1999

the Supreme Court is due to rule on the matter shortly and it is widely expected that they will uphold the decision of the lower courts

the OFT has already published its preliminary view that it considers the charges are unfair

the defendant has no realistic prospect of success

 

 

Balance of convenience

 

The sums claimed are insignificant to the bank and are highly significant to the claimant.

If the defendant bank is prevented from entering of defaults onto the claimant's credit file, this will be insignificant to them, will cause them no loss and no inconvenience

on the other hand a negative entry on the claimant's credit file even for a short while is capable of causing enormous damage to his reputation

The continued application of charges and related interest to the claimant count are insignificant to the defendant but highly significant to the claimant

the receipt of regular unwelcome telephone calls both on the claimants landline and on his mobile phone are stressful and are any intrusion on his privacy

it would pose no inconvenience whatsoever if the defendant bank is ordered to cease this intrusive activity against the claimant

because the defendant bank is protected by the stay on the claim, the claimant is left defenceless whilst the defendant is left free to continue its activities against the claimant

it is expected that once the Supreme Court handed down its ruling and the OFT has formally declared in charges to be unfair that the defendant will abandon its defence

the defendant bank has no real intention of pursuing the defence against the claimant and it is submitted that the filing of a defence by the defendant was merely a strategy to invoke a stay on proceedings in order to protect their hopeless position

it is respectfully pointed out to the court that from early 2006 until the general stay in July 2007 that the defendant bank, in common with all the other banks, filed hundreds of spurious defences in response to legitimate claims for bank charges, only to withdraw from the case and to settle at the last minute.

It is submitted that the defendant bank has acted in broadly the same way in this case -- with the additional benefit to them that they are protected by a stay whilst they are free to continue activities against the claimant

The Status Quo

The proposed orders would merely maintain or restore the status quo which was intended by the stay on bank charges claims

the defendant bank, by their enforcement activities and by their continued charging and applying of interest is distorting the status quo under the protection of the stay on the claimants litigation against them

 

The Overriding Objective

 

It is respectfully submitted that it is in the interests of justice to grant the orders which are requested in this application.

It cannot be just that they matter which is clearly the subject of a legitimate dispute, in respect of which a defence has been filed, in respect of which the defence does not actually object to the fact that the action has been brought, should then be stayed pending a test case and that the defendant in the present bank charges claim and also who is at the same time defendant in the test case should be allowed to take advantage of the protection of the court to continue the very activities which are the subject of litigation and furthermore to embark on other enforcement activities which are not only a violation of the spirit of the stay but are also a breach of the Data Protection Act and a breach of the Banking Contract

 

Conclusion

 

it is respectfully submitted that the court agrees to the orders requested in this application in order to

remedy the defendants abuse of process

prevent any further intrusions into the privacy of the claimant

prevent any further breaches of contract

prevent any further breaches of the Data Protection Act

prevent any further breaches of the Banking Code of Practice

prevent any further breaches of the new FSA Banking: Conduct of Business Regulations

 

The claimant respectfully requests that the court orders

that the defendant ceases any enforcement activity in relation to any sums which are the subject matter of claim 9NR02629

that the defendant ceases to telephone the claimant in respect of the about sums or any other bank charges related matter

that the defendant do not make any entry or cause any entry to be made on the claimant's credit file in respect of the sums present in dispute or in respect of any other bank charges related matter

 

-- These orders to remain in place until the settlement of the claim 18th January 2010

 

Letter to Judge

 

District Judge Norwich County Court

Claim No ************

Date ********

Dear Sir/Madam

 

 

Application of Emergency Interim Injunction

I am asking the court to exercise its discretion to grant me an emergency interim injunction in were the county court claim which was stayed on the **********.

 

I realise that normally the defendant should be given a chance to argue against an injunction at a hearing, however despite the stay on my charges claim the defendant has proceeded to take direct action against me including regular and frequent telephone calls to my land line number and my mobile telephone.

 

These telephone calls are often made on weekends and anti social hours and are causing distress to myself and my family

 

I have received a letter which is giving me notice that the defendant is about to place a default entry on my credit file which would damage my credit reputation even though the matter is subject to this litigation.

 

These activities are in breech of contract, in breech of the data protection act, in breech of the new FAS regulations, and they are an abuse of the court process as the defendant is enjoying the protection of a court stay.

 

The reason I am asking for an emergency injunction is because the proposed credit file entry is imminent and I feel there is not enough time for a proper hearing to be arrange and for the defendant to prepare arguments to resist my application.

 

Also the problem of daily telephone calls what can be 5-6 per day. Additionally the defendant is applying charges and interest on my overdraft even though the overdraft is the sum dispute and is comprised of the disputed sum which bank charges.

 

I understand if this emergency application is granted that there will have to be a hearing to decide if it should be continued. I intend to attend such a hearing and argue my case thoroughly.

 

I hope that the court will consider

 

 

 

So, armed with all this I handed in my application and paid my £60, within 20 mins I was informed that a Judge had seen my application and referred it to the High Court Judge for a 30 min hearing. After a lengthy discussion and informing the court staff of my extreme concerns and why I had applied for such an application they went off and offered me the earliest date they could, Dec 8th @ 10am, not great but it was clear it wasn't going to go any further!

 

 

Following this I then decided to write a letter to both HSBC and DG Solicitors informing them of the injunction I had aplied for and that a hearing with the High Court Judge had been set for 8th Dec. My aim with this letter was to inform them of what was coming! but to also refrain from further action against my account, i.e. interest, defaulting my account with credit agencies, and the telephone calls i have been receiving. Through the letter I made it very clear that if such actions persist I will be informing the Judge of my letter to them and they still continued with their action. These letters were posted on 16th Nov 2009, special delivery.

 

 

Notice letter

 

 

Dear Sir/Madam,

 

 

Notice of application on injunction in the High Court *******************

 

 

 

Im putting you formally on notice that in response to your letter dated ************ ref *****-******** proposing to enter a default on my credit file in respect of a disputed account.

 

I have applied to the Court in ********** for an order to prevent this action by you which would be a breach of contract and a breach of the Data Protection Act, I have also asked for an order requiring that you cease any further harassing telephone calls.

 

The Court has informed me that that my application will be heard on the ************. Im writing to you now because I know that it will take sometime for the official Court documents to be prepared and sent to you.

 

Please be aware that if you continue with this action proposed in your letter I will then produce this letter to the Court at the hearing in order to make it clear you were already informed to my objection and this was to be the subject of an application for an injunction.

 

 

Yours Faithfully

 

 

 

 

 

 

Cc DG Solicitors

 

 

At time of writing this post I have not received a response from any of the parties I have written to, i am still receiving 7-8 calls a day from HSBC, landline and mobile, all calls are being logged.

 

 

 

Sorry for the long post, i will of course keep you all updated on how things progress!!!

 

 

Cheers once again for all support and advice

[iiyama66]

Hi Bankfodder!

 

Ive just spoken to the courts, had to chase them up twice now, but i have had it confirmed that a Judge has been allocated but the listing officer was unable to confirm anymore. However, i asked him to put a note on my file stating the urgency of the situation, he said he will make sure the details are passed on and letters sent out ASAP. I will chase them again on Monday!

 

PS

Post has just arrived and still no replies from HSBC and Co!

[iiyama66]

Hello!

 

Following my case on DEC 8th the Judge ruled against me, no surprise, but he agreed that HSBC should only contact me via mail and he also agreed to an extension of the stay until Jan 2010.

 

Since then I have received a Final Demand letter from HSBC for the outstanding balance of £1000 for the current account.

 

I immediately contacted HSBC to discuss this matter and stop them from defaulting me, however, as the account now has been issues a final demand 'their hands are tied' and therefore can not stop the account being handed to the Bailiffs or take me to court, unless i paid of the arrears in full. I told them I couldn't afford to do this and offered a payment plan that i could afford and this was ignored.

 

So, what do I do next?

 

Obviously I don't want a default against my name,

 

a) Can they ignore any attempts to negotiate a payment plan?

 

b) Would I be better of letting this go to court as i feel that they are being very underhand about this. Are the Courts sympathetic?

 

3) It seems that they are pushing this to a default situation even though im trying to sort it out with them.

 

Cheers in advance for any advice/support given

[iiyama66]

Hi johnnymitch!

 

Thanks for your post, no it wasn't in writing but i shall post a letter tomorrow re plan.

 

The amount I can afford to pay isn't a lot but its all I can afford, assume that no matter how small, if you can prove that is all you can afford the courts would support that?

 

Cheers

[iiyama66]

Jonny,

 

With regard to the default, where do i stand? Is it just part of the threat/bully tactics are can they inform credit agencies at anytime?

 

Cheers