Jump to content


HSBC Invalid CCA? Advice Please


gem77
 Share

style="text-align: center;">  

Thread Locked

because no one has posted on it for the last 2959 days.

If you need to add something to this thread then

 

Please click the "Report " link

 

at the bottom of one of the posts.

 

If you want to post a new story then

Please

Start your own new thread

That way you will attract more attention to your story and get more visitors and more help 

 

Thanks

Recommended Posts

Hello, I hope someone can give me a bit of advice on this. Basically I have an HSBC credit card about about 9 months ago our finacial situation changed and I was unable to keep up minimum payments to my creditors so I wrote explaining the situation and offering pro rata payments and asking for interest and charges to be stopped.

 

HSBC have never even acknowledeged my offer and just sending letters demanding payment of the arrears. Last week I sent them a CCA request. A few days later I recieved a letter from Moorcroft demanding full payment. Today I recieved a reply from HSBC to my CCA request.

 

They have stated in the covering letter that they are not legally obliged to send a copy of the original signed agreement but a print out of the application form is all that is required and they are unable to find my original agreement.

 

Am I right in thinking that this is incorrect? Also the thing that made me laugh was that the date on top of the application form was 2005. They have filled out the form with my name, address and DOB but they have filled it out in my maiden name and my old address. Indeed when I first opened the account I wasnt married and that was where I lived but I moved house in 2002 and was married in 2003. Both events were reported to HSBC as soon as they occured. Therefore the date of 2005 is complete nonsence. Does this give me a stronger case to defend against them if they do take me to court or is the date on top of the application form irrelevant?

 

They have also stated that they have sent me the terms and conditions from when I opened the account. Now I cant see a date on them so I have no idea if they are from 2005 like the application form or indeed from when I opened the account which I cant actually remember when it was maybe in 2000.

 

I wonder If someone could advise me on this and what should be my next step.

 

Many thanks

Gem77

Link to post
Share on other sites

They ARE allowed to send a reconstructed copy of the agreement to satisfy a CCA request with terms and conditions that would have been in place at the time of allegedly opening the account.

 

You could ask the question how are they going to prove that these are the correct T&C's - as they have already stated they do not hold the original ????

HTH (Hope This Helps) RDM2006

 

THE FORCE (OF CAG) IS WITH YOU

;)

 

We've Helped You To Claim - Now Help Us Remain

A live Site - Make a Donation

 

All advice and opinions given by people on this site are personal, and are not endorsed by Consumer Action Group or Bank Action Group. Your decisions and actions are your own, and should you be in any doubt, please seek qualified professional legal Help.

 

However, if you have found any advice you have been given helpful.

Why not show your gratitude And

Click the * on the post you found helpful.

Link to post
Share on other sites

Hi HSBC are well known for stating a load of rubbish with a bit of truth in their letters I would send the following the 14 day deadline my make them a bit jittery though.

 

Dear Sirs,

 

Thank you for your letter dated nn/nn/nnnn.

You have chosen to respond to my CCA request by providing a reconstituted agreement. While this may satisfy a CCA request, it is not enforceable in a court of law.

 

I now request you to confirm that you actually hold a copy of the original signed agreement. If you do not hold an agreement, then I require you to confirm this, or if you do hold the original signed Agreement then I would ask for you to advise me in what form.

 

I can think of no valid reason why you should provide a reconstituted version when you could have simply photocopied the original-if it exists.

 

I would remind you that the OFT state that creditors should not imply or state that an enforceable agreement exists if that is not the case.

 

I look forward to receiving your response within 14 days if I do not I will then consider the alleged debt to be unenforceable at that time.

 

Dpick

cannot find it A to Z

 

http://www.consumeractiongroup.co.uk/forum/consumer-forums-website-questions/53182-cant-find-what-youre.html

 

 

Halifax :D

Paid in full £2295

 

MBNA:mad: 20/03/2008 settled in full out of court

 

Capital One:D

07/07/2007 Capital one charges paid in full £1666

19/01/2008 recovered PPI £2216 + costs

 

Littlewoods :-D

12/08/2007 write off £1176.10 debt.

 

JD Williams charges refunded in full £640

Link to post
Share on other sites

Hi Dpick. Thank you for your reply. Should I send this letter even though they have stated that they cant find the original? also I had another letter from moorcroft (in a lovely bright yellow envelope) reads as follows:

 

Notice of Possible Litigation

to prevent the above action send payment in full before 05/11/10 or telephone 0161 475 2874 immediately.

If you don not respond to this letter we will have to assume that you are purposely avoiding repayment of this debt and will take the necessary steps to secure settlement which may include recommending that our client issues legal action against you. Please note if legal action is necessary your debt may increase.

 

Please note we have confirmed with a major public utility that you are in occupancy at the above address.

Contact us now.

 

Should I write to moorcroft stating that I have requested a CCA and the account is under dispute?

Also the thing that worries me is the last bit stating they have contacted a major utility and Know where I live. Dont like the idea of them contacting my utility suppliers and it sounds rather like a threat.

Link to post
Share on other sites

The bit about contacting a utility supplier is CRAP it is designed just to scare you into phoning them. I would love them to explain how a utility supplier gave them this info against DPA.

 

As you have letter stating no agreement send Moorcrap a letter telling them please note no agreement bogoff and enclose copy of the letter admitting no agreement.

 

dpick

cannot find it A to Z

 

http://www.consumeractiongroup.co.uk/forum/consumer-forums-website-questions/53182-cant-find-what-youre.html

 

 

Halifax :D

Paid in full £2295

 

MBNA:mad: 20/03/2008 settled in full out of court

 

Capital One:D

07/07/2007 Capital one charges paid in full £1666

19/01/2008 recovered PPI £2216 + costs

 

Littlewoods :-D

12/08/2007 write off £1176.10 debt.

 

JD Williams charges refunded in full £640

Link to post
Share on other sites

Thanks dpick. I did wonder as most of our utility suppliers are in my hubbys name and just because we have the same surname doesnt necessarily mean we both live there. will draft a letter to moorcroft today.

Link to post
Share on other sites

Hi Guys. wonder if someone can give me a bit of help. I am trying to write this letter to moorcroft but struggling with what to write I have this so far:

 

Dear Sir/Madam,

 

In response to your letter dated 29th October 2010 I wish to bring it to your attention that I am currently pursuing HSBC for a true signed copy of the credit card agreement. In response to my request HSBC have admitted that they do not hold a true signed copy of the agreement therefore placing the account in dispute and unenforceable.

 

 

I have looked through a few threads to get some ideas but cant seem to find any. also what reply should I send to HSBC? I will post up the letter they sent with the reconstructed application form.

 

Many thanks

Link to post
Share on other sites

  • 2 years later...

I have now had court papers issued by Marlin.

HSBC have never sent me the original cca and the account was in dispute over this.

What should be my next course of action?

Didnt think they could take a disputed account to court?

Link to post
Share on other sites

Hi Gem

 

Well they are technically still in default of your CCA request...now they have commenced litigation the reconstituted wont wash..it must be the original signed copy to enforce.

 

Could you type out thei particulars (verbatim) less any identifiable data to establish what can be requested vis a CPR 31..14.

 

" Didnt think they could take a disputed account to court? " They shouldn't but they do and they are not aware that it is in dispute..they had satisfied your section 78 request with the reconstituted.

 

Regards

Andy

We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 Have we helped you ...?         Please Donate button to the Consumer Action Group The National Consumer Service

 

If you want advice on your Topic please PM me a link to your thread

Link to post
Share on other sites

Thanks Andy. The POC are as follows

 

By an agreement in writing between HSBC Bank Plc & the defendant dated 09/04/2001 ("the agreement") HSBC agreed to issue the defendant with a credit card upon the terms & conditions set out therein. In breach of the agreement the defendant failed to make payments of not less than the minimum payment shown on the monthly statement.

HSBC served a default notice on the defendant stating the amount due & requiring the defendant to pay same. The defendant failed to pay & the agreement was terminated. The agreement was assigned to the claimant on 15/02/2013. The claimant has complied with sections III & IV of practice direction - Pre-action Conduct.

The claimant therefore claims

1. £6***.**

2. interest pursuant to section 69 of the county courts act 1984, namely 1458.05 & continuing until judgement or sooner payment at the rate of 1.52.

 

 

Marlin europe I now own this they are the claimants through their solicitors Mortimer Clarke.

Link to post
Share on other sites

They don't need the original agreement.

 

Read the following.

 

So what if you don’t have the original agreement? well the burden does rest on the debtor to make a positive assertion about the original agreement, as the law stands , unless the debtor is able to make a positive assertion that the agreement was unenforceable because….. or that there never was a signed agreement…………………….(Please note: This only applies for agreements signed before 6th April 2007) then it is going to be very difficult to challenge the enforceability of the credit agreement.

Link to post
Share on other sites

They don't need the original agreement.

 

Read the following.

 

So what if you don’t have the original agreement? well the burden does rest on the debtor to make a positive assertion about the original agreement, as the law stands , unless the debtor is able to make a positive assertion that the agreement was unenforceable because….. or that there never was a signed agreement…………………….(Please note: This only applies for agreements signed before 6th April 2007) then it is going to be very difficult to challenge the enforceability of the credit agreement.

 

 

By an agreement in writing between HSBC Bank Plc & the defendant dated 09/04/2001 ("the agreement")

We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 Have we helped you ...?         Please Donate button to the Consumer Action Group The National Consumer Service

 

If you want advice on your Topic please PM me a link to your thread

Link to post
Share on other sites

Read the following.

 

I would also point out that no where in the 1974 Act does it state the “Original actual signed piece of paper” must be brought to the Court. It would no doubt be accepted by the Court if a member of staff working for the bank in their archiving department gave evidence that there was a credit agreement recorded on the banks archives, and that the type of credit agreement in use at that time was “X” and the computer records show that “X” % rate of interest would have applied and the credit limit was “£XXXXX”. The Court is likely to accept such evidence unless there is a positive assertion coming from the debtor as to what he did or did not sign. Now i would also point out that making a positive assertion that you didn’t sign an agreement when you know you did, is not only likely to get found out and make you look foolish, if you make such an assertion in a Defence and sign such with a statement of truth knowing it isn’t true, then you may well end up facing contempt of court too.

Link to post
Share on other sites

Nor does it state that a reconstituted will suffice either..there are many reasons why the original must be disclosed to show enforcability...partic on pre 2007 agreements...unfortunately I have not the time to argue those points at the moment.

We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 Have we helped you ...?         Please Donate button to the Consumer Action Group The National Consumer Service

 

If you want advice on your Topic please PM me a link to your thread

Link to post
Share on other sites

Read the following.

 

This is incorrect. Even going back to Wilson v First County Trust (2003) UKHL 40, the Lords said that there must have been an agreement, signed by the debtor, however the Lords did not say that if the bank doesn’t have this agreement then they cannot enforce. There have been a series of judicial rulings which address this point.

 

HHJ Langan in Lloyds TSB vs Mitchell that the creditor did not have to produce the original signed agreement, he pointed out cases such as the Iron Mountain fire where thousands of credit agreements were burnt and pointed out that if the creditor lost his agreement because of the fire, then it would produce an absurd result that would have left the creditors unable to enforce compliant and enforceable credit agreements. That was never the intention of the Consumer Credit Act 1974.

 

In Carey v HSBC Bank Plc HHJ Waksman QC made it clear that the creditor does not need the original agreement to produce a true copy, he can rely on records held in computers and other sources to produce a true copy of the agreement, the only caveat is that the copy must be honest and accurate.

 

The Courts have also set down some guidance on the issue of unenforceabilty and who shares the burden of raising such arguments relating to unenforceabilty. In HFO Services vs Kirit Patel HHJ Platts made it clear where a debtor wishes to raise an allegation of unenforceability, he cannot just say “its unenforceable guvnor” he needs to say why. For example, its unenforceable because the amount of credit is misstated and therefore a prescribed term is missing and therefore the agreement does not comply with s61(1)(a) Consumer Credit Act 1974.

Link to post
Share on other sites

 Share

  • Recently Browsing   0 Caggers

    No registered users viewing this page.


  • Have we helped you ...?


×
×
  • Create New...