Bank Bloopers - HSBC CCA response - what's next?

[creditcruncha]

Sent a CCA request (without signature).

 

Recieved prompt HSBC response for a 'fresh request' as they require a signature on requests for default charges.

 

Sent reply, refusing to make a fresh request, stating original request stands and clock is ticking, stated I do not consider I need to sign a request in the circumstances, and noting I did not request list of default charges - the request was a CCA request.

 

HAVING IT BOTH WAYS: They replied quickly again, asking a second time for a fresh request and contending they require signature to comply with their policy and enable them to 'compare' to signature on other documents on file. BUT on the same day of their second refusal/response, they sent ANOTHER letter in a sepererate envelope and signed by the SAME woman and containing a 'copy' of the credit agreement which is just a photocopy of application form (that I don't remember ever seeing) with a freshly filled in name and address but no purported date or signature.

 

The original card was a Midland classic Mastercard but it had since been converted (via informal telephone offer and without any paperwork exchanged) to an HSBC Gold visa card.

 

a. Would the (purported) application form for the former satisfy their CCA/evidence burdens in relation to the latter?

b. If disputing the enforceability what is an appropriate next step in lightof what they provided?

[Castlebest]

Hiya creditcruncha and welcome to the HSBC forum .

A credit agreement that complies with the consumer credit act should detail various prescribed terms of the credit agreement, application forms rarely do this so... without seeing the form they have sent you I would guess that no the (purported) application form does not satisfy their CCA/evidence burdens

 

Added to that, it sounds as though they have sent you a "reconstructed" application form, not a form you have ever seen before. They are allowed to reconstruct credit agreements and this dose comply with section 78 of the CCA however if your dispute ever got to court they will need to produce the original document for the courts inspection.

If disputing the enforceability what is an appropriate next step in light of what they provided?

Do exactly that, write to them and state the information they have sent you does not fulfil their obligations under the CCA and therefore your account is now in dispute and the agreement is unenforceable.

 

Also I would suggest you read this thread about unenforceable agreements:

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/256053-hsbc-managed-loan-account.html

 

Good luck

 

 

pete

 

Edited April 16, 2010 by Castlebest

[creditcruncha]

Thanks for that.

 

Is an application form sent in response to a CCA request the same as a copy of an agreement, if above the (blank) signature line at the end of the application forms it says "This is a Credit Cagreement reglated by the Consumer Credit Act 1974. Sign only if you want to be legally bound by its terms" AND/HOWEVER there are no CCA terms on the application form? If terms are provided in a seperate photocopied booklet, and there's no place to sign on that terms & conditions booklet, then how can they assert that the terms were ever known to the card applicant before (allegedly) completing the application form?

[johnnymitch]

Hi creditcruncha

 

If it says "This is a Credit Agreement " then I would say it's NOT an application form, although they have been known to try getting away with just sending bodged up copies of Application Forms .........

 

However , in answer to your second question : The T&Cs must be an integral part of the signed document.....they can't be separate because , as you say .... how can they prove you ever saw them when (or if) you signed the Agreement ......?

 

I'd follow pete's advice and write back and tell them that what they've sent does not constitute compliance with your request under the CCA and that the account is now well and truly 'In Dispute' until they comply ....

[creditcruncha]

Hi creditcruncha

 

If it says "This is a Credit Agreement " then I would say it's NOT an application form, although they have been known to try getting away with just sending bodged up copies of Application Forms .........

 

 

Thanks Johnny. Actually the form is headed in big bold letters Application Form, but at the end just above the signature it states it is a 'Credit Agreement'. Their covering letter said they have comply with my request.

 

If I declare the account to be in dispute, what happens next? What if they still continue to assert they have complied with the Act? And can I cease making payments until the dispute is resolved? And what wording can I use to specify to them that they have failed to comply with the CCA - do i need to list the ways they haven't complied? Oh, and is there any need to send a Subject Access Request at this point?

Edited April 18, 2010 by creditcruncha

[johnnymitch]

If there are no CCA Terms & Conditions as an integral part of that document CC then it does not comply with the Act , therefore it's not worth the paper it's written on ..... they can argue till they're blue in the face . but the fact remains ...... they have NOT complied .... write back and tell them so..... and if they persist ... report them, to the ICO for non -compliance with the requirements of the Act.

 

A SAR will get you everything they've got on you CC ..... it's up to you whether you think you require it at this stage . Personally I'd hold off until the CCA is resolved ... they may produce your agreement WITH T&CS!

 

I'd also keep making payments until you know for certain they haven't got the full agreement .... it would look well if it came to court that you had been complying .... even if they hadn't ......

[creditcruncha]

Thanks again Johnny. Just to be sure I understand, even if they enclosed a seperate photocopied bog-standard 'Credit Card Agreement Terms' pamphlet would that be considered as not being an integral part of the document they needed to supply? Also, if the current card is a Gold Visa card but originally the card was a basic Mastercard, would there have to have been an individual agreement for each, or is the latter/different card considered to be under a variation of the initial agreement??

Edited April 20, 2010 by creditcruncha

[creditcruncha]

Anybuddy?

[Castlebest]

Hiya creditcruncha, they are supposed to provide a "true copy" of your loan / credit card agreement, an application for credit is not an agreement therefore they have failed to provide the information you requested in acordance with the CCA and your loan / credit card debt is uninforceable.

 

I think strictly you should have a seperate agreement for the original card and the new card because they would have had different numbers and therefore be different accounts. They would also have been subject to different interest levels etc etc and this should have been spelled out to you.

 

Hope that helps

 

pete

[creditcruncha]

The bank has now conceded in further correspondence that a signed CC agreement is unavailable. They contend it was once in their 'control' but they state they no longer possess it.

 

I actually don't remember signing any CC agreement or being provided any terms (so am not confident an enforceabile signed agreement was ever possessed by them), but regardless of that how much does their admission of unavailability support a dispute of the debt on the basis of unenforceability, and is their now any reason to bother with a SAR or CPR disclosure now that they have admitted they don't have it?

[johnnymitch]

Hi CC ,I wouldn't bother with the SAR now or CPR disclosure.. but guard that letter with your life ..... make copies .....

 

It's your passport to asking them to abandon the claim they're making against you ...... you see , 'unenforceable' doesn't mean it goes away , just that they can't chase you for it ...... but if you can get Declaratory Relief (preferably without going to court for it ) ...it'll be dead in the water forever .....

Without that there's always the chance they'll suddenly 'find ' your agreement and start chasing again.......

Also , if they defaulted you to a CRA ... you'd have a letter to support removal of that default..........

[creditcruncha]

Thanks Johnny! Good idea about safe copies! But what do you mean about Declaratory Relief and how can that be obtained without going to Court?

[johnnymitch]

DR is a bit difficult , but a couple have done it.....first though, try asking them to confirm it as abandoned(referring to their letter as reason) ... that may get the job done, they may not be fussy about chasing it anyway and it would give closure to both parties .....

[creditcruncha]

If the Bank (wrongly) a number of times demanded a signature & fresh request as a precondition to accepting a s78 CCA request, but eventually admitted that a signature and fresh request is not a requirement and so has sent what they consider to be their response to the request, can a customer then formally complain about and expect token compensation for the delays and undue inconvenience of being made to check and clarify and repeatedly inform the Bank that the original CCA request is valid and need not be resubmitted? And can this be done without affecting any other matters in dispute?

[vint1954]

Hi Creditcruncher,

 

If this was a Midland account, they won't have the agreement.

 

I suspect that what they have sent you is an HSBC credit card request form, filled in by one of their staff.

 

A set of HSBC t&c's

 

And a statement.

 

I wouldn't try and get too clever with them. As it stands they are in default of s78 and as johnny has advised, have admitted that they do not hold the agreement.

 

So long as you have put the account in dispute, then wait for their next move, but send the letter johnny has suggested in post#13

[creditcruncha]

Vint thanks. Your assumptions are all accurate. The account has been declared as being in dispute. But I doubt they will wave the balance good-bye at this stage, even if they know there is nothing to be enforced.

[vint1954]

They usually send a default notice and then terminate the agreement.

 

If the DN is faulty and they terminate, that is unlawfull rescission.

 

The date that the DN was issued and the rectification date are important.

[creditcruncha]

Thanks again Vint!

So if they have not issued a default notice yet, then if they will issue one now that the account is in dispute it will be faulty? (ie, unless and until they can produce a signed copy of the agreement the dispute can't be resolved so they cannot issue a default notice?)

[johnnymitch]

Hi CC , that's about the size of it ....... but they may try just the same ..... if you get a default notice , come back on and let us have a look at it ..... someone will guide you from there......... they may have to be reported for defaulting you illegally ........ and made to remove it ......it's happened before ..... I think sometimes they do it just for spite ....because they can't get their own way ....

[vint1954]

So long as you are making payments, they won't default you.

 

They will usually issue a DN 3-4 months after you stop payments.

[vint1954]

Hi CC , that's about the size of it ....... but they may try just the same ..... if you get a default notice , come back on and let us have a look at it ..... someone will guide you from there......... they may have to be reported for defaulting you illegally ........ and made to remove it ......it's happened before ..... I think sometimes they do it just for spite ....because they can't get their own way ....

Absolutely johnny, they issued mine while they were in default of s78. They had sent nothing at that point.

[creditcruncha]

Thank you very much, Johnny & Vint! It's so comforting to know you're around.

 

I am not making further payments as they admitted they don't have a signed copy of the agreement, and the account is in dispute, and they cancelled the agreement anyway so there is way to determine what the payments should be, and they acted unfairly in cancelling it, and I have communicated all this to them.

They have now begun charging a late payment fee but not be recieving further paymetns from me until the matter is resolved or fully and finaly settled.

[vint1954]

Ok creditcruncha,

 

So long as you are aware of the implications when you stop payments. They will trash your credit file.

[johnnymitch]

Vint thanks. Your assumptions are all accurate. The account has been declared as being in dispute. But I doubt they will wave the balance good-bye at this stage, even if they know there is nothing to be enforced.

 

Could be CC ......... but if you don't ask you don't get ....... they won't volunteer to abandon it .. but a little nudge night just do it ....

[creditcruncha]

Ok creditcruncha,

 

So long as you are aware of the implications when you stop payments. They will trash your credit file.

 

Thanks Vint. Your point is clear but where an account is disputed and an agreement's terms are unknown it seems peculiar and contrary to a dispute to continue the payments they stipulate; and, wouldn't it be illegal for them to report adversely to a credit agency while an account is in dispute as if there was no agreement then they do not have authority to pass on personal/account information to anyone and would be breaching the Data Protection Act if they do? Anyway if they indicate anything on the credit file the account holder can ask the credit agency to note their side of the story.