In reply to my CCA request HSBC quoting Carey v HSBC 2009 what now?

[mickthespur]

Hi All

 

We have got in to difficulty repaying my wife's credit card after I had a back operation and then had a heart attact . We are now surving on disabilty benefits.

 

We have been making token payments regularly. HSBC had agreed to these payments albeit saying that normal collections procedures will continue. This was after I had wrote asking for the debt to be written off and following that suppied them with a budget statement

 

She was then issued with a default notice, I took advice from the forum and asked for the original credit card agreement

 

HSBC replied that they did not have original but sent reconstituted copy, T&Cs, variation and statement of account . I then sent another letter asking them to confirm that they did not have the original signed agreement

 

They sent me back a letter saying they had complied with Section 78 by supplying copies and in light of the recent High Court decision in Carey v HSBC 2009 they had satified my request and they see no merit in my continued insistence that the documents supplied are in breach of the CCA

 

They have now passed my wifes case to Metropolitan and she has recieved their standard recovery letter and the 1st phone call

 

How does she stand at the moment in the light of the Carey v HSBC letter and what is her (our) next step

 

We understand that we owe this money and have always in the last 25 years paid the amount due on the card, but with me now out of work and my wife caring for me we cannot afford their payments

 

Any advice would be gratefully received

[rdm2006]

They can do this to satisfy a s.78 request but they still need the original at court, Also you could put them to strict proof that these are the correct terms and conditions that would have been in place at that time.....

 

I would like to know how they would do that.

 

If they have stated that they may take you to court - you can then send a CPR 31.16 letter asking for all info on which they intend to rely upon - you cant send these willy nilly so wait for the threat....

 

 

Civil Procedure Rules (31.16)

 

(1)This rule applies where an application is made to the court under any Act for disclosure before proceedings have started1.

 

(2)The application must be supported by evidence. (Hence - wait for the threat)

 

(3)The court may make an order under this rule only where –

 

(a)the respondent is likely to be a party to subsequent proceedings;

 

(b)the applicant is also likely to be a party to those proceedings;

 

©if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and

 

(d)disclosure before proceedings have started is desirable in order to –

 

(i)dispose fairly of the anticipated proceedings;

 

(ii)assist the dispute to be resolved without proceedings; or

 

(iii)save costs.

 

(4)An order under this rule must –

 

(a)specify the documents or the classes of documents which the respondent must disclose; and

 

(b)require him, when making disclosure, to specify any of those documents –

 

(i)which are no longer in his control; or

 

(ii)in respect of which he claims a right or duty to withhold inspection.

 

(5)Such an order may –

 

(a)require the respondent to indicate what has happened to any documents which are no longer in his control; and

 

(b)specify the time and place for disclosure and inspection.

Edited December 19, 2010 by rdm2006

[rebel11]

Hi mick

 

What they didn't tell you, was that it also stated in Carey v HSBC (2009) that if the agreement has been 'Varied' i.e. the interest rate has been increased by the creditor, then the creditor has to provide a Copy of the Original Agreement as well as T&C at the time of request.

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/3417.html

 

Theres a summary at the bottom, but it might be an idea to go through the lot. 234 (4).

 

HSBC like to 'Cherry Pick'.

 

No doubt the interest rate has been 'Varied' many times.

[mickthespur]

Hi rdm2006 and rebel11

 

Thank you both for your reply's.

 

rdm2006, so if they need the original for a court appearance and do not seem to have it, I presume they are playing games and trying to put pressure on?

 

rebel11, I started to read through the whole of the case but got bogged and lost the thread of it, but read and understood 234 (4)

 

What do you suggest that I do now? Would it be wise to reply to HSBC quoting 234 (4) and asking for the original CCA to be sent?

 

Also, is my case "in dispute"? If so can I reply to Metropolitan requesting them to cease contact as it is in dispute and HSBC cannot pass the case on to DCA

 

I would like to get to the stage where a firm offer of repayments or a full and final amount is reached. We have been paying a nominal sum each month (this is all we can afford) which HSBC are now rejecting by passing it over to Metropolitan

 

Look forward to your reply

[rebel11]

Hi Mick

 

I'm inclined to send HSBC, the following letter :- http://www.consumeractiongroup.co.uk/forum/content.php?436-Failure-to-provide-a-copy-of-the-agreement-within-the-prescribed-timescale.

 

I'm inclined to send Met, the following letter :- http://www.consumeractiongroup.co.uk/forum/content.php?426-A-letter-when-the-account-has-been-passed-to-another-debt-collection-agency

 

Try not to get into paper tennis with these companies.

Send the letters Recorded.

[mickthespur]

Hi rebel11

 

Thanks for the quick reply. Will send letters off tomorrow and will let you know the out come.

 

Looking at other threads, is a game of paper tennis not inevitable?

 

Best regards

[mickthespur]

Hi rebel1

 

Received a reply from HSBC as per scan below, nothing yet from Metro. I do think there is any need for a reply to this, do you agree?

 

Regards

 

Mike

 

 

Hope you can see this!

[minmoo]

Hi Mick, its too small. Can you use photobucket or something similar?

[mickthespur]

Hi Minmoo

 

The link to Photobucket will be in the following post as I have not reached 20 posts to enable links hope this is ok

[mickthespur]

Hi

 

This should be my 21st post so the link should be ok! Replies and advice most welcome http://i936.photobucket.com/albums/ad204/mcork/HSBCrelytoletter30thdec.jpg

 

Thanks Mike

[Old Cogger]

metro are HSBC in house people as are DG solicitors.

[mickthespur]

Hi rebel11

 

Any thoughts on post No 10? It is a reply from HSBC after sending the letter you suggested in the following post

 

Thanks, Mike

 

 

 

Hi Mick

 

I'm inclined to send HSBC, the following letter :- http://www.consumeractiongroup.co.uk/forum/content.php?436-Failure-to-provide-a-copy-of-the-agreement-within-the-prescribed-timescale.

 

I'm inclined to send Met, the following letter :- http://www.consumeractiongroup.co.uk/forum/content.php?426-A-letter-when-the-account-has-been-passed-to-another-debt-collection-agency

 

Try not to get into paper tennis with these companies.

Send the letters Recorded.

[the_shadow]

File it, wait to see if you get something different from the room along the corridor (metro).

 

The ball is in there court at present, you have shown youre not to be hoodwinked by their use of their test case Carey vs HSBC

 

S.

[Old Cogger]

1st other room (Metro) - 2nd other room D.G Sol

[mickthespur]

File it, wait to see if you get something different from the room along the corridor (metro).

 

The ball is in there court at present, you have shown youre not to be hoodwinked by their use of their test case Carey vs HSBC

 

S.

Hi Shadow

Thanks for the reply will wait around to see what happens

Mike

[mickthespur]

Hi Shadow

 

Sent off the 2 letters one to Metro and one to HSBC as you suggested and have received from Metro the following letters:- http://i936.photobucket.com/albums/ad204/mcork/Metroscans12.jpg and http://i936.photobucket.com/albums/ad204/mcork/Metroscans.jpg

 

Can I CCA Metro to either get them off my back or to push them further or just ignore?

 

My wife is still paying a token payment each month.She would like to continue this to show she is not running away from her debts, but is just not in a position to pay the minimum payment, is this ok to continue?

 

Look forward to your reply

 

Mike

Edited February 15, 2011 by mickthespur

[the_shadow]

Hi Shadow

 

Sent off the 2 letters one to Metro and one to HSBC as you suggested and have received from Metro the following letters:- http://i936.photobucket.com/albums/ad204/mcork/Metroscans12.jpg and http://i936.photobucket.com/albums/ad204/mcork/Metroscans.jpg

 

Can I CCA Metro to either get them off my back or to push them further or just ignore?

 

My wife is still paying a token payment each month.She would like to continue this to show she is not running away from her debts, but is just not in a position to pay the minimum payment, is this ok to continue?

 

Look forward to your reply

 

Mike

 

Personally i think its at a standstill, they have "noted" your arguments but wont counter them so they think they can continue to carry on regardless. as to token payments...I've had same letter from metro and ignored it and carried on paying token amounts and still am.

 

S.

[mickthespur]

Hi Shadow

 

Thank you for the very quick reply. Will carry on with the token payments and wait for the next stage, I imagine will be DG, will let you know as and when things develop, once again thanks

 

Mike

[the_shadow]

Hi Shadow

 

Thank you for the very quick reply. Will carry on with the token payments and wait for the next stage, I imagine will be DG, will let you know as and when things develop, once again thanks

 

Mike

 

Yep had a letter from them too... just sent them the same offer as I'm paying and carried on paying... 3 months down the line now

 

S.

[mickthespur]

Just a follow up for those interested 3 months or so on now and my wife is still paying token payments. She had one letter from Metro asking her to set up a agreement with them to pay token payment each month by a certain date etc.

 

This we ignored and have carried on with token payments, no more so far has been heard.

 

Would really like them to respond with an offer to clear the debt, but will not hold our breath

 

Thanks to Shadow and others for their advice will update if any thing else arises

[emanevs]

Sorry to throw a spanner in the works.......if you keep paying the debt doesnt become statute barred....

 

Whats the point paying if they cant produce the documents in court???

[the_shadow]

Yes obviously because you are acknowledging the debt each time you pay however you will clear the debt and it will be done with.. if you look at the results from court reports recently not having the agreement is not always a bar to getting a judgement and its certainly no bar on someone taking you to court. I'd rather settle outside of court and possible costs if it was me.

 

S.