HSBC Credit Card - No CCA

[sgs2009]

Hi All,

My wife has an HSBC credit card which she has had for a number of years (it was actually a Midland Bank card before they were taken over). She lost her job and so was unable to make a couple of payments and began to get the numerous phone calls from overseas. Each time she had to go over the same ground as no one seemed to note anything down. Anyway in the end she requested her CCA with them - they replied and stated that they did not have the CCA but did send another one for her to sign - which she ignored (hopefully the right thing to do). She missed another months payment and had the usual calls but yesterday (14 Aug) she received a mound of paper from HSBC showing all the monthly statements dating back to 2004 with an offer of reimbursement of all the overdue charges they had applied to the card since that date - an amount just under £900 - the offer based on her "agreeing that she makes no further claims or takes any legal action on this matter. It is a gesture of goodwill without prejudice to our right to impose and recover default charges in the future" She hasn't taken any action other than request the CCA. My question is should she accept the payment which will be crdited to to her card balance or continue to pursue the unenforceable debt?

Thanks in advance.

[silverfox1961]

Hi,

Don't accept anything as yet.

Do your own calculations regarding this refund to make sure they are offering you the correct amount.

Remember, they have charged interest on interest with these charges so any refund you attempt to get should also be charged at the interest rate they charged you and compound it too. This is likely to bump up any claim quite considerably(probably much more than the £900 they are offering)

 

I would also send them a SAR to get statements from pre 04 (if they have them) just to see if there are other charges included

[sgs2009]

Thanks - not sure why they are offering the refund though - they effectively closed the account some time ago so the balance has been reducing since she has no card and cannot spend on the account it's just lately she has struggled with the monthly payment, then they offered this.

[silverfox1961]

It's very hard to work out what goes through a banks mind, even on the best of days.

 

It does seem rather odd that they are making this offer with no prompting and if course they are making it with a "without Prejudice" statement meaning you wouldn't be able to bring this letter to court if you decided to chase for a possible higher settlement.

 

It is up to you what you do. If this offer clears the balance then you could go for it but if it doesn't, you could try and get previous statements and see if there are more charges that could be added to the claim.

 

Have they supplied the agreement yet?

[sgs2009]

It's about 25% of the balance so I may follow your suggestion re SA - they cannot supply agreement as they stated in reply to the request that they didn't have it so sent a new one for her to sign - she didn't!

Thanks

[johnnymitch]

That's why they're trying to weasel out with a 25% offer .....they haven't got an agreement .... cheeky beggars .."without prejudice" indeed ...Huh !

 

There are a couple of options here sgs2009 :

 

1. You could accept their offer on the strict understanding that it's a part payment and you reserve the right to claim the balance at a later date ........... (They often push for this undertaking that you waive all rights to claim more while they retian their right to keep charging ....... it's a try on IMHO , and they've been known to pay up on the offer anyway , without you having to give this undertaking ........

 

2. Refuse the offer and push for more , and follow silverfox's advice on sending for statements prior to 2004 ...... to see if there's any more to be claimed ...

 

In the end the decision has to be yours (or rather , your wife's )......

 

But come back if you need more advice ........ there's plenty of it to be had on here ....

[sgs2009]

Thanks - today she received a letter from HSBC noting that a payment hadn't received and they "were very concerned" They then went on to say that if payment not received further action would be taken to recover the amount owed. The letter ends stating that "as the account is closed do not use the card" and that "payments must be made within the terms of the Credit Card Agreement" - quite interesting seeing as there is no CCA!

Edited August 18, 2010 by sgs2009

[johnnymitch]

That's the usual template bumph sgs , generated automatically ..... means the left hand doesn't know etc etc ............. lol...

 

You can ignore it or tweak their tails by pointing out that the account is in dispute and there IS no agreement ... and ask them to suggest what they advise ............

[sgs2009]

Hi All - received this today from HSBC - can anyone explain it to me - is the debt enforceable - they seem to say they do not need to supply the original CCA merely a copy of what it might have looked like but I would aprreciate any advice! Letter reads " Further to your letter of .......please find enclosed copy documents as requested. Section 78 (1) of the Consumer Credit Act 1974 requires us to provide ".. a copy of the executed agreement (if any)...." Regulation 3 (2) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 allows that certain items may be omitted from such copies, including the signature box and signature. Therefore, the copy of the executed document we must suppy is a copy but need not be a photocopy of the signed agreement. Regulation 7 of those regulations also requires us to provide a copy of the executed agreement, as varied, where there is a power to vary the terms of the agreement, which there is with this this card agreement and that power has been exercised to vary the agreement, which again is the case with this card agreement. We therefore enclose an up to date copy of the terms and conditions applicable to your account, a copy of the latest variation notice issued in respect of your account and a reconstituted agreement form compliant with Regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983. This variation shows that the terms have been varied and therefore in accordance with this legislation the up to date terms and conditions are the appropriate information to produce. In addition to this, please find enclosed a signed statement of account validating any debt outstanding. Yours etc"

They included a copy of statement, a Credit Card Application Form with some of my wife's details filled in (name, address DOB - not her writing) T&C's.

Have they fullfilled their obligations to provide the CCA as requested - she originally banked with Midland Bank and doesn't remember signing anything with HSBC when they took over Midland - she just received a new card.

Thanks

[silverfox1961]

Morning,

They are correct in saying the can send a reconstituted agreement but if they ever came to trying enforcement via the courts, they would need the original agreement.

 

As for them saying they enclose a copy of what your agreement "might" have looked like. That is a little wrong. They can make minor mistakes but the document sent must match the original.

 

This goes back to the days before photocopiers, microfiche and the like when copies of agreements were done by hand.

 

Can you post up the application they sent you. Obscure any personal details, barcodes etc.

[rebel11]

In a recent case, Carey v HSBC, the judge stated that where the agreement has been varied since the account was opened then the creditor needs to provide a copy of the original agreement with Terms and Conditions for each variation. Creditors are trying to throw Consumer Credit Regulations 1983 as their compliance.

[sgs2009]

Hi,

Links to Agreement they sent - have removed first name, surname, DOB address and postcode - all else was blank.

 

http://i811.photobucket.com/albums/zz39/sgs2009_photo/Photo0001.jpg

 

http://i811.photobucket.com/albums/zz39/sgs2009_photo/Photo0002.jpg

 

Cheers

[silverfox1961]

I take it that there is no signature on that document.

 

Even if there were a signature, I cannot see any of the prescribed terms within it making it unenforceable in court.

 

Personally, I would be writing back outting the account further into dispute as they haven't provided the copy of the original (Midland Bank) agreement

[sgs2009]

You are correct - no signature at all. Thanks for advice.