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Hi folks. My girlfriend has been having a torrid, awful time with HSBC of late and she desperately needs some guidance.

 

She had a longstanding overdraft of £1500. It went on for many years, at least 5 years. She made mininmal payments and the bank left her alone. Then, in April, after a few months when she didn't pay them, she received letters demanding that the overdraft be brought back within its limit.

 

But in march she had lost her job and couldn't pay them 'owt.

 

So she wrote a letter to her branch offering a repayment plan in April. Ignored by the bank.

 

So she wrote a further letter to an HSBC service centre in May, again offering repayment plan. Also ignored by the bank.

 

Next thing she received a Final Demand letter. They want repayment in full and will pass it on to a DCA. CRAs informed by HSBC etc.

 

She then telephoned the bank and they verbally agreed a repayment plan. A couple of days later she had recourse to telephone the bank and someone else told her the account was closed, that because it was "defaulted" she could not negotiate a payment plan with HSBC, that they would take her to court and wanted the money in full within 28 days.

 

She then complained and received a written response to the effect that the bank was in error agreeing a proposal to sort things out after the Final Demand Letter had been served and there was nothign that they can do about it. A DCA will be instructed. pay up in full. Your account is closed.

 

My questions: what can we do about this? How do we complain? On what grounds and who to?

Edited by Mozz1

Mozzone

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Ok, I'll give it a go. Nowt from anyone at the monent on either this or my Barclays thread, which is very disappointing.

Mozzone

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  • 2 weeks later...

Hi peeps, hoping for some pointers on this one.

 

My good lady wrote a combined dispute letter, SAR and CCA request to HSBC. The dispute relates to their Final Demand letter as they did not reply to her hardship letters. They have suspended her account.

 

In the combined dispute, SAR and CCA request letter she made a monthly repayment proposal to HSBC, which is all she has wanted to do from the get go (the bank, having issued the Final Demand have refused to negotiate).

 

Ok, so today she got a letter from a DCA demanding proposals for repayment. The DCA is called Metropolitan.

 

Metropolitan's letter states:

 

"Thank you for your letter requesting a copy agreement under CCA regulations [only partly true, she also asked for a copy of the Consumer Retail Agreement in the alternative]

 

"Pls find enclosed copy statements [these only go back 12 months; she has had this overdraft since 1999/2000 and the account since the late 1980s]

 

"S.78 CCA 1974 does not apply to current accounts. The current account is not a regulated agreement because it provides no credit. The overdraft agreement provides the credit and this sits seperatly from the account agreement [no overdraft agreement provided]

 

"Credit agreements normally have to comply with Part V of the CCA 1974. Part V covers the form and content of agreements, signing of agreements and duty to supply copies of unexecuted and executed agreements. However current account overdrafts are given a specific exemption from all Part V formality requirements by s 74(1)(b) of the CCA 1974.

 

"This exemption applies only when the OFT grant a Determination under s74(3) and this was given for overdrafts on 21 December 1989.

 

"The consequence of this is that there is no executed agreement for the purposes of the CCA 1974 and so s78 (right to demand a copy of executed agreement) does not apply.

 

"We now require you to submit your proposals for repayment of the remanining balance within 14 days.

 

"Metroplitan Collection Serrvices"

Edited by Mozz1

Mozzone

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Oops...

 

To help clarify these matters, this is an extract from a Court case (Coutts & Co v Gabriel Oscar Alan Sebestyen [2005] EWCA Civ 473.) and is part of the summing up by the Judge in relation to the effect on overdrafts and the function of the CCA in such circumstances;

 

“The Defendant provided an overdraft on the account;

 

 

The agreement was a regulated debtor-creditor agreement within the meaning of s.8 and s.13© of the Consumer Credit Act 1974, providing for 'running-account credit' within the meaning of s.10(1)(a) of the Act (in effect, a revolving credit within an agreed credit limit); and

That, as such, it was subject to the requirements of Part V of the Act (including the requirements as to documentation set out in sections 57 to 63 of the Act) save and in so far as it was excluded or exempted from such requirements.

 

Section 65 in Part V of the Act provides that an "improperly executed" regulated agreement is unenforceable by the creditor without a court order. It is common ground that a regulated agreement is "improperly executed" for this purpose if the requirements of sections 57 to 63 have not been complied with.

 

Section 74 of the Act provides for the exclusion of certain agreements from Part V. It provides as follows (so far as material):

"74. – (1) This part …. does not apply to –

(b) a debtor-creditor agreement enabling the debtor to overdraw on a current account, …

(3) Subsection 1(b) … applies only where the OFT so determines, and such a determination –

(a) may be made subject to such conditions as the OFT thinks fit …

(3A) …. in relation to a debtor-creditor agreement under which the creditor is …. a bank …. the OFT shall make a determination that subsection 1(b) above applies unless it considers that it would be against the public interest to do so.

 

THE DETERMINATION:

 

The Determination (which is signed by the Director of Fair Trading) is made under section 74(3) of the Act. I set it out in full:

 

"1. Under the powers conferred upon me by s.74(3) and (3A) and s.133 of the Consumer Credit Act 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.

 

2. This Determination is made subject to the following conditions:-

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

(b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:

- of the credit limit, if any,

- of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended,

- of the procedure for terminating the agreement;

and this information shall be confirmed in writing.

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

 

3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended."

 

The Claimant avers that the OFT Determination applies in the current proceedings and that the Defendant has failed to satisfy the conditions laid down to benefit from such Determination, the effect of which is that the Defendant must be able to show that the agreement complies with the form and content requirement of Part V of the CCA 1974, specifically s.60 and s.61 of the Act.

 

If they can't demonstate compliance with the Determination, the OD is unenforceable :rolleyes:

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Always happy to help where I can!

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Hello out there. Things are getting a bit tough now with HSBC and some guidance would be helpful, if only to say we aint got a hope, whatever.

 

HSBC closed her account behind her back without so much as a whistle and during a complaint and when the account was in dispute (the dispute letter went same day they rushed thru the account closure) and they are saying the complaint isn't valid because of the Default Letter.

 

Insofar as SAR is concerned, they are refusing to give her information and have instead sent a Data Protection Act form for her to fill in and sign and date and return to them before they will divulge any info. Is this correct? Should she fill it in? Does she have to?

 

Their wording "Your o/d is not regulated by the CCA 1974. As such to comply with credit policy we provide a facility letter. We have enclosed a copy of the most recent overdraft facility letter."

 

Therefeore they say they do not have to show her a copy of any original agreements for the account and overdraft; instead they send a computer print out of the most recent ToB and the Default letter.

 

They also referred to a DCA who is hounding.

 

What to do?

 

They have offered a £200 reduction on the o/d repayment but demand we contact the DCA for repayment directions rather than direct to them because they closed the account (like I say, while a complaint was in process and despite 2 hardship letters being sent to them by her BEFORE the Default Letter!).

 

They want her to sign a form agreeing to accept the £200 reduction "in full and final settlement of your complaint."

 

PLEASE can anyone assist?

Mozzone

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Do not sign anything

 

If they can't provide the facility letter sent to her, covering all those points in the Determination, the overdraft is unenforceable, should not be collected and should not have been 'passed' to a DCA

 

You need to reply telling them what they have stated is unacceptable and that your dispute is not resolved

 

They will reply saying this is their final response and you can go to the FOS

 

At that point, you need to write to the DCA, tell them that you do not acknowledge the debt they claim you owe and you suggest they return the account to the original creditor. You also send them the harrassment letter

 

Send the harrassment letter to the original creditor

 

You do the same with any new DCA that they pass the debt to

 

They may Default the credit file - is this an issue for you?

 

I'm assuming you know where all these letters are, take a look in the library in the main forum

 

;)

Always happy to help where I can!

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She has written to the DCA telling them the account is in dispute and if they contact she'll go to the Police. She has also reported the DCA to Consumer Direct. If they write again she will respond telling them to go back to the OC.

 

When she found out they had closed the account she sent a letter to the FOS at the same time as writing to the bank (in whic she told HSBC them all about the case of Coutts and Gabriel (above)).

 

The computer screen copy of the facility letter is pretty dreadful. I summarise its points (it is undated and some plod was working on this on Sunday at HSBC!)

 

1. Confirms variable rate o/d on terms set out as attached

2. Confirms limit

3. Confirms term and review for Nov 10

4. Confirms any overdrawn balance interest as current account overdraft rate

5. States current annual rate 18.29% and current effective rate 19.9%

6. 14 days cancellation

Then it goes into T&Cs as follows:

1. "Your facility like all o/d facilities is an on-demand form of borrowing. This means we can at any time even before the review date withdraw your facility and or write demanding immediate payment of the o/d balance together wit accrued interest, fees and charges"

2 - 5 interest blurb

6. Our personal banking t&c apply to your account. If you do not have a copy pls ask us for one

7 - 12 fees, charges, current annual rate defined, jurisdiction blah de blah

 

Point 1 is claerly salient but are they compliant?

Mozzone

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Hi Mozz1

 

You're getting excellent advice there from Car2403 as always , ....it may also put your (and your girlfriends) mind at rest to know that MCS are not a real DCA , just the In- House Collection Department of HSBC , using their premises , databases , everything except their headed paper ......

 

They are the bully-boys , employed to try to put fear in your heart .... don't let them do it ..... this account is in dispute and should be handed back (down the corridor :rolleyes:) to HSBC proper ........

 

They probably won't do it , and if they're true to form it'll go to another set of bullies who will also try to harass you ... then DG Solicitors , (who are another In-house mob working only for HSBC )

 

If you stick to your guns , and report them to the FOS and stick with the advice Car 2403 gave you in #10 ........you should be ok ........:) it may be a long haul , but if you don't let them rush you into rash decisions , (which they're experts at ... ) you'll get there .....

 

Remember , it's a game to them ...... they're not losing sleep over it .... why should you ...... :)

Nemo me impune lacessit

 

 

Advice & opinions given by johnnymitch are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

 

If you think I've helped you please feel free to tickle my star :-D

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She has written to the DCA telling them the account is in dispute and if they contact she'll go to the Police. She has also reported the DCA to Consumer Direct. If they write again she will respond telling them to go back to the OC.

 

When she found out they had closed the account she sent a letter to the FOS at the same time as writing to the bank (in whic she told HSBC them all about the case of Coutts and Gabriel (above)).

 

The computer screen copy of the facility letter is pretty dreadful. I summarise its points (it is undated and some plod was working on this on Sunday at HSBC!)

 

1. Confirms variable rate o/d on terms set out as attached

2. Confirms limit

3. Confirms term and review for Nov 10

4. Confirms any overdrawn balance interest as current account overdraft rate

5. States current annual rate 18.29% and current effective rate 19.9%

6. 14 days cancellation

Then it goes into T&Cs as follows:

1. "Your facility like all o/d facilities is an on-demand form of borrowing. This means we can at any time even before the review date withdraw your facility and or write demanding immediate payment of the o/d balance together wit accrued interest, fees and charges"

2 - 5 interest blurb

6. Our personal banking t&c apply to your account. If you do not have a copy pls ask us for one

7 - 12 fees, charges, current annual rate defined, jurisdiction blah de blah

 

Point 1 is claerly salient but are they compliant?

 

This is just a bad copy of an updated overdraft facility letter tho isnt it... they havent sent a copy of the first/original letter offering you an overdraft I'm guessing. This I would have thought is the requred letter by the determination.

 

S.

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She has reported to FOS and the Lending Srandards Board (LSB). LSB don't do individual complaints but should look at the breaches of the lending code. What worries her most is that HSBC will damage her credit score and run roughshod over the law. At the end of the day she'll see the b*ggers in court if she has to she is so angry and upset. I've gotta lot of this sort of stuff going on in my life but she hasn't, so I'm helping her sort it out.

 

We are graetful to you and car403 for your kind support. as it is a lonely journey is this...

 

I confirm she has put all of car2403's advice to HSBC but the bank seem hell bent on skirting the issues and misinterpreting what she is saying. Like you say, its a game. So, the sooner Messrs DG Solicitors start writng the better and we'll see 'em in court.

Mozzone

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This is just a bad copy of an updated overdraft facility letter tho isnt it... they havent sent a copy of the first/original letter offering you an overdraft I'm guessing. This I would have thought is the requred letter by the determination.

 

S.

 

Correct its definitely a bad (computerised print out ledger-looking thingy) of an updated o/d facility. They have not - and will not - send an original copy. We don't know if this is the required letter for the Determination; perhaps they can get away with undated, updated computer facsimiles?

 

Also they are refusing her SAR request. They are demanding she sign and fill in a form issued by "UK DPC" (?). The form does make reference to the £10 fee though (asks for it on delivery but she already paid them the postal order earlier). Should this form be completed?

Mozzone

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That's the spirit mozz1:D

 

sorry I didn't see your latest post above ......

 

If she sent a tenner and a letter (SAR) then they don't need that form filling in, it's just more time-wasting shennanigans ...... write and tell them they've had a SAR which is quite acceptable ..and that the 40 -day clock is still ticking from the time they received the first one ... that failure to comply will be reported to the Information Commissioner for breach of the Data Protection Act ...

 

Don't forget to send everything 'Recorded Delivery' and keep copies of those in case they're required for court ...

Edited by johnnymitch

Nemo me impune lacessit

 

 

Advice & opinions given by johnnymitch are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

 

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They are procrastinators and will continue to correspond with you to attempt to frustrate and intimidate. The CAG way is to say your piece, in a put up or shut letter, and leave it like that. Either that, or you sue them - which I'm well known for - and that tends to throw them slightly ;)

 

Either way, it's a win for you. You just have to be strong and not retaliate.

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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Hi. We have sent some lengthy detailed letters to the blighters now and will now sit back and refer them to these 'til we get some answers from them.

 

What is the FOS like? Are they helpful, woeful or somewhere inbetween?

Mozzone

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About as useful as an ashtray on a motorbike

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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But if it comes to court Mozz1, the fact that you have exhausted all other avenues, including trying to get a decision out of FOS , should go in your favour .......

 

btw I like that analogy Car ......:D must remember that one ....

Nemo me impune lacessit

 

 

Advice & opinions given by johnnymitch are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

 

If you think I've helped you please feel free to tickle my star :-D

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yes, I find it sums it up quite nicely :rolleyes:

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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subbing.

any update?

Advice and comments posted by The Debt Star reflect only my personal opinion and it is up to you alone to decide what action you should take. You should always seek independent legal advice from your own qualified legal advisor.

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Hello all. HSBC have written back saying that her o/d is not covered by the CC 1974 but otherwise they are referring to their legal department.

 

She wrote back to them saying that they are WRONG because o/ds ARE covered by the CCA 1974 UNLESS the bank has a Part V exemption. To be valid, the Determination needs to have been compied with, which we understand means that HSBC should have sent her a letter withion 30 days of the o/d. Now, the o/d is at least 10 years old! Unless HSBC can evidence this letter then I think they are screwed and the CCA 1974 applies to o/ds arunning credit agreements. No DN, no termination notice, no CCA agreement!

 

Ok, that's ref challenging the o/d bit. On the closure of the account issue, she sent them a cheque payable to HERSELF for the balance plus extra and a paying in slip and they cashed it! She had written saying that their acceptance of the money was acceptance of her requirement that the account be reinstated.

 

They have of course ignored that point and have not acknowledged the cheque.

 

I think the enxt steps will be to claim the sum back as the o/d is invalid as the Determination doesn't apply (assuming that to eb the case when we get the SAR info from them) and also expenses and costs for inconvenience.

 

Not sure where this is headed but Lending Standards and FOS have been contacted, which she did when she discovered the account had been closed while it was still in dispute.

Mozzone

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They are in breach of both the Lending Code and the LSB's Rules & Regulations. LSB won't investigate your complaint on your behalf but they will investigate HSBC and fine accordingly. The FOS will take forever. Don't expect a quick resolution Mozzi.

Advice and comments posted by The Debt Star reflect only my personal opinion and it is up to you alone to decide what action you should take. You should always seek independent legal advice from your own qualified legal advisor.

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