HSBC problem now problem with DCA too-please help

[floricita]

Thanks mate.

 

So basically, for example I would write something like,

 

"They haven't supplied me with my original contract" rather than saying that + this goes against x and could render the contract void etc then go on to next point of complaint?

 

Yes, maybe I'm too nice, and I know this sounds silly but how do you not speak to them? Do you just politely ask for them to put what they have to say in writing because a telephone call could compromise my legal position?

[the_shadow]

Thanks mate.

 

So basically, for example I would write something like,

 

"They haven't supplied me with my original contract" rather than saying that + this goes against x and could render the contract void etc then go on to next point of complaint?

 

Yes, maybe I'm too nice, and I know this sounds silly but how do you not speak to them? Do you just politely ask for them to put what they have to say in writing because a telephone call could compromise my legal position?

 

Just state they have not complied with the s78 request and have failed to show you a true copy of the executed agreement.

 

As to how not to speak to them... Either dont go through security, after all I could pick a number out of the phone book and ask for security questions, I dont have to know the answers just the questions.... OR just state put it in writing so I can obtain legal advice and put the phone down..

 

Or purchase a truecall device... expensive but it stops or reduces them getting through.

 

S.

[car2403]

Have you sent the harassment letter to them? It's in the library, if you haven't and now is the time, my friend, now is the time

[floricita]

Hey thanks for all the advice.

 

What constitutes harrassment?

 

I will take a look at it.

 

I did make it clear to them and HSBC previously that I didn't want to be contacted by phone anymore, but it hasn't seemed to work.

 

I also have not made a log of when the calls were or how many, is that a problem?

[car2403]

Harassment is defined in Protection from Harassment Act - essentially, it's any behaviour that causes you to feel harassed. (The feeling of being harassed being subjective)

 

The letter tells them that you feel harassed and asks them to stop, then says if they don't, you are warning them their behaviour is causing you to feel harassed, asks them to stop, then tells them you will consider legal action under Act.

 

Usually, the response is to return the debt to the OC and pass it to a difference DCA - at which point you send another letter to the DCA. If you also send the first letter to the OC, then they are in trouble also if they continue passing the account around.

[car2403]

You don't need a log - 1 action of behaviour can amount to harassment.

 

Please, please, please stop speaking to them on the phone. If it's not in writing, it hasn't happened

[floricita]

Thanks.

 

Its just difficult because I share a house with a few others so they answer it and I then get speaking to them, I will try and just say to them please contact me by mail in the future.

[car2403]

Yes, this happens here too, but the letters soon stop them calling

[floricita]

Update on the situation.

 

Last week I received a letter from HSBC saying they are looking into my letter and will respond.

 

I at the same time get calls from metropolitan but I wasn’t around or didn’t answer.

 

I then today receive this letter dated 22nd july, not sure why it has taken so long to get here! But this affects the time limit they have set.

 

To say the letter is worrying would be an understatement and any informal advice as to how to proceed would be greatly appreciated. Its from DG Solicitors.

 

“Name

Account no

Balance

 

“We act for HSBC Bank of 8 canada square, London e14 5hq (the bank). We refer to the bank’s correspondence with you demanding repayment of this debt. We are advised that despite the demand full repayment has not been made.

 

We have therefore been instructed to take legal action against you in the County Court to recover this debt. This may result in the bank obtaining a jugdgment against you which may affect your ability to obtain credit.

 

To avoid legal action you must pay the outstanding balance within 14 days from the date of this letter. If you need more time to pay, we may be able to rearrange this.

 

Payment can be made by ………… etc etc

 

It is important that you immediately contact us

 

DG

[car2403]

Go, so the goal posts haven't moved, they've morphed from football goalposts in to rugby goalposts!

 

Now, the fact you've been paying this after **seemingly** challenging the fairness or otherwise of the debt may likely be your downfall, I'm sorry to say.

 

Perhaps the best thing to do, here, is to admit defeat and come to a reasonable offer of repayment with them that you can afford, then just get on with paying them.

 

The alternative is to revisit all the arguments you've used with them previously, and hope that a Judge sees it your way when (which seems more likely than the 'if', previously) this goes to Court.

 

We can all help you with what you decide, but, ultimately, only you can decide which way to go along this road

[floricita]

Thanks.

 

The payments started before the account was put into dispute, but they continued as the dispute went on. I see the point though. At the time I thought it would look better from my side if it looked as though I was trying to settle the dispute in a reasonable manner.

 

I have decided to fight this though and I will not give in just yet and offer payment.

 

My main points at the moment are that

 

1. There is no agreement between the parties.

2. The charges were not negotiated by both parties (probably not going to be too successful with this one)

4. Charges are not fair and not in consumer interest

5. That they are party to gross mis-representation in relation to how the agreement was sold to me and how it was applied-i.e not on a reducing scale.

6. Account(not overdraft) was closed without notice.

 

That's all the points I have at the moment.

 

If anyone has anymore that I might have missed please let me know, or any info relatin to the above for me to further investigate.

[floricita]

My first proposed action is to send a letter to the DG and say that the account is in dispute and therefore in accordance with 13.6 of the banking code they cannot pursue such action.

 

Then a short while after send a CPR request.

 

I was a bit confused by what Car 2403 said on Mozz's thread regarding the CCA request.

 

I sent two SAR requests to HSBC and they never sent me the original contract or copy of. Do I now need to send a CCA request as well to get this? Or is that too late?

 

If I send a CPR request does this mean that they have to provide the copy or a letter of compliance sent to me for the determination and if they don't the overdraft is unenforcable?

 

Sorry am confused

Edited July 28, 2010 by floricita
Addition

[floricita]

Hi again.

 

I was up all night thinking about this scenrio.

 

I'd like to again thank everyone on here for their help and support.

 

I think it is imperitive that I understand all the laws correctly, and I am reading as much as I can about this subject.

 

any help would be always greatly appreciated.

 

Regarding The CCA. I'm still confused by this in its legal form and I want to get it correct (see above).

 

I was reading about another person with a similar case last night.

 

From my reading my understanding now of the CCA application would be that I cannot dispute that the debt exists-BUT I can make a counter claim (not sure if that is correct legal speak? or how this works) for the charges to be offset against the balance and possible interest too. And this would stand up if they cannot provide me with a true signed copy of the original agreement which would be the reference point to which the charges refer to.

 

I also noticed that under S127 (I think) of CCA, one Judge I think it was, stated that credit consumer agreements are unenforceable unless a true signed contract is provided.

 

However, I'm not sure what the definition of unenforcable actually is? Unenforcable by the court or by the act?

 

I believe that this doesn't mean that the debt is wiped off, I think you still owe the debt.

 

Please assist with any of the above points in this or other posts of mine if you can.

 

Thank you very much.

 

At the present time I am thinking of using the above argument(s) as the base from which I will build from to my other arguments which I am yet to fully investigate in the eyes of the law.

[car2403]

From my reading my understanding now of the CCA application would be that I cannot dispute that the debt exists-BUT I can make a counter claim (not sure if that is correct legal speak? or how this works) for the charges to be offset against the balance and possible interest too. And this would stand up if they cannot provide me with a true signed copy of the original agreement which would be the reference point to which the charges refer to.

 

You would be defending their claim on the basis that the debt is unenforceable, as a whole. Alternatively, you'd be making a partial admission on the part of the debt you agree with and defending the remainder around the charges applied. In the latter case, you'd end up with a CCJ for the reduced amount if the Court agreed with you regarding the charges - I refer you to my previous posts on that subject though, as this is going to be very difficult to prove without significant evidence in your favour. (From what you've said, I don't think you'd successfully defend the charges, IMHO )

 

I also noticed that under S127 (I think) of CCA, one Judge I think it was, stated that credit consumer agreements are unenforceable unless a true signed contract is provided.

 

It's s.127(3) that you need to look at

 

However, I'm not sure what the definition of unenforcable actually is? Unenforcable by the court or by the act?

 

I believe that this doesn't mean that the debt is wiped off, I think you still owe the debt.

 

Legally, the debt will still exist if it's declared unenforceable by the Court, it just can't legally (i.e., via legal methods) be enforced by you - such as by taking legal action and then, for argument sake, sending the bailiffs around.

 

An unenforceable debt is no debt at all, IMHO, and no bank in it's right mind would want an unenforceable debt on their books - in brief, this isn't good 'tax strategy' for the bank, and it makes the City frown upon them, so they definitely want to avoid that

[floricita]

wow thanks for the reply.

 

Are overdrafts definitely covered by the CCA? I read your earlier posts and it seems to be the case, but I posted up on legal seagulls today to get some more input, and the first reply was that overdrafts are not covered by CCA, which threw me a bit!

 

I was also wondering if they are, then how in normal speak, can the debt not exist just because of there being no original agreement? My basic knowledge of contract law is that usually implied actions constitite a contract in the eyes of the law in most forms, I was just curious as to why this wasn't the case with CCA? I mean in most cases it pretty obvious or easy to prove that the money had been borrowed/the account has been used/certain terms and conditions have been applied and by continuing to use the account that implies you acknowledge them? (sorry that might be a very silly question but just wondering)

 

Regarding the above post, regarding the latter case, the amount not disputed amounts to tens of pounds and I'm more than willing to pay that back and have offered to on many occasions in writing.

 

My point about disputing partial amount was the legitimacy of the amount-because it = same amount of charges applied on the account which are unenforcable unless they provide the original contract. I would simultanously do a counter claim on the same basis, so it would be a two pronged approach gooing down that route.

[car2403]

Are overdrafts definitely covered by the CCA?

 

Yes, see the links in my signature about the CCA and overdrafts

 

I read your earlier posts and it seems to be the case, but I posted up on legal seagulls today to get some more input, and the first reply was that overdrafts are not covered by CCA, which threw me a bit!

 

Quite! It's not a very well known area of law, particularly Consumer Law - the banks maximise on this, of course.

 

I was also wondering if they are, then how in normal speak, can the debt not exist just because of there being no original agreement?

 

I think I answered this one above?

 

My basic knowledge of contract law is that usually implied actions constitite a contract in the eyes of the law in most forms, I was just curious as to why this wasn't the case with CCA?

 

Yes, contract law still applies (a consumer agreement IS a contract, after all) but the CCA goes further than established contract legal principles to provide protection to consumers from big organisations and creditors that could maximise on a consumers lack of legal knowledge.

 

I mean in most cases it pretty obvious or easy to prove that the money had been borrowed/the account has been used/certain terms and conditions have been applied and by continuing to use the account that implies you acknowledge them? (sorry that might be a very silly question but just wondering)

 

Not silly at all, so ask away!

 

This is all the banks issue, to be honest. The additional obligations and duties in consumer law is on them, not you, as a consumer. The problem you have is getting a Judge to understand all this, as they are notorious for getting it wrong - 'you've borrowed the money, you HAVE to pay it back' sort of thing.

[floricita]

Thanks for the response.

 

I recieved ANOTHEr letter from DG sols today. It says

 

"Dear...

 

This letter confirms that, as requested, our clients are prepared to hold this account in abeyance while the matters raised have been looked into.

 

This concession is granted soley in the light of your cuurent financial circumstances. You must contact us on...if your financial circumstances change.

 

Upon expiry of the above period we will require your proposals for repayment of the debt"

 

I don't know what abeyance means?

Edited July 29, 2010 by floricita

[car2403]

I would write back and ask them what the letter means - in plain English.

 

Be aware that they monitor these threads!

[floricita]

Ok I have spent numerous hours reading up about laws and acts, I have a little bit of a headache now

 

I do have a few questions that arose though and this is not doubting anyone's information, but for clarity on my own mind which is very cloudy at the minute with all the legal jargon.

 

But I am 100% determined to fight this all the way so I want to get everything water tight and I am starting from a legal knwoledge base of about 0.5% so please bare with me

 

Regarding compliance with the CCA thing. Please correct me where I have got it wrong/right.

 

Banks do have to comply with it, except for the part about having to provide an original agreement?

 

This is if,

 

They have sent a letter to the OFT saying they want to be "part" of the determination? Does this have to be at the time of opening the account, or just in general? Do they have to have this letter?

 

They also have to send you a letter with all the account info.? This doesn't have to be signed I believe? But they would have to provide this documentation when it goes to court?

 

Now some confusing parts.

 

The closing commentary to that case that you refer to says that they do have to provide the original agreement. IS this case specific or is it a "follow on" from the above and is now concrete in overdraft cases?

 

Other cases I have read seem to state that even though, (and this was at the time when it was considered they don't have to provide an original agreement), that despite being exempt, that when it goes to court they would still need to supply a copy of the original agreement to prove that you and not someone else took it out and that you agree to it? If they can't what would be the consequence?

 

I also wanted to know what the consequence is if the bank close your account without following proceedure? And how can I get hold of the proper proceedure?

 

What is the consequence if the banks "sold" you an overdraft agreement on a misrepresentation basis? I.e they lied about certain parts of the contract?

Sorry that's quite a long post.

[car2403]

By George, I think you've got it!

 

If the Bank hasn't followed the process, they can't 'force' you to pay and will probably write off the debt as a result.

 

If they didn't, and sell the debt, they are in breach of the OFT's Guidance on Debt Collection and leave themselves open to all sorts of claims in reply, harassment and the likes, etc.

[floricita]

:lol:

 

It's a miracle !!!!!

 

Sorry man, my post was soooo long, i'm not sure which parts are 100% correct

 

And the last part about following process was that in reference to closing the account? (I assume those details would come out when I issue my CPR?)

[car2403]

 

Here you go;

 

Banks do have to comply with it, except for the part about having to provide an original agreement?

 

Yes

 

This is if,

 

They have sent a letter to the OFT saying they want to be "part" of the determination? Does this have to be at the time of opening the account, or just in general? Do they have to have this letter?

 

Yes, IMHO. Here's some specific further discussions on what they should do, when, here:

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/265817-hsbc-help-desperatley-needed-2.html (posts #33, #35 and #40)

 

They also have to send you a letter with all the account info.? This doesn't have to be signed I believe? But they would have to provide this documentation when it goes to court?

 

Yes

 

Now some confusing parts.

 

 

The closing commentary to that case that you refer to says that they do have to provide the original agreement. IS this case specific or is it a "follow on" from the above and is now concrete in overdraft cases?

 

This case isn't specific, but it is the leading authority on the interpretation of the OFT's Determination under s.74 CCA 1974 - it would be almost impossible to distinguish from another other overdraft, however.

 

Other cases I have read seem to state that even though, (and this was at the time when it was considered they don't have to provide an original agreement), that despite being exempt, that when it goes to court they would still need to supply a copy of the original agreement to prove that you and not someone else took it out and that you agree to it? If they can't what would be the consequence?

 

Ah, remember that this is relating to the overdraft only - of course there has to be documentation elsewhere to prove that you did what you did, but that's more related to the Account Opening procedures, not specific to the overdraft. The overdraft is an extension of lending already in place, so identity is usually not much of a problem - hence you can apply for an overdraft over the phone or online, it not requiring any 'in advance' paperwork. (Some of which relates to the Determination, of course)

 

I also wanted to know what the consequence is if the bank close your account without following proceedure? And how can I get hold of the proper proceedure?

 

There's nothing stopping them closing your Account - there'll be T&C's in the Account details to allow them to do this. An overdraft is protected under the Act, though, so must follow their (not the) prescribed process of termination. (Usually giving 7 days notice of repayment in full, then issuing a s.98 Termination Notice, but not always)

 

What is the consequence if the banks "sold" you an overdraft agreement on a misrepresentation basis? I.e they lied about certain parts of the contract?

 

It would be for you to argue, really. My argument would be that the entire 'bargain' was unfair and the whole debt unenforceable, as a result - of course that's only if it was enforceable, having complied with the Determination completely, though!

 

Blimey, I need a bourbon cream after writing all that...

[floricita]

HEre have a bourbon you deserve it.

 

I still don't understand how they can't just make up a letter which they can say they sent out to you in the prescribed format which complies with the determination? Do they generally keep these letters?

 

To be honest it was such a long time ago I have no idea if they did this or not.

Edited July 31, 2010 by floricita
addition

[car2403]

Yes, there is that - it's just a shame that Barclays didn't get it right when they sent my "copy", then, isn't it?!

 

Actually, I found the original after the case 'died', and found what they'd sent was the original, but it was still flawed. Looks like they do keep them, then? It did take them almost 9 months to find it though.

[floricita]

Hmmm....so in essense, that would rule out the argument that the debt is unenforcable because of compliance with CCA/determination proceedures?