HSBC no CCA

[citizenB]

Have a look at their Wiki page.. it looks like Midland became HSBC around 1999

 

 

http://en.wikipedia.org/wiki/HSBC

[spartathisis]

Ta.

 

Have replied listing the breaches of BCOB, OFT guidelines and data laws and wanting confirmation that the 'CCA' they have sent is what they will rely on in court. Now looking into restitution and unjust enrichment thanks to the document they sent through

[spartathisis]

Well, received a final response letter (again) and HSBC are still saying I am liable for the alleged debt (no mention that they think it is legally recoverable ).

 

Point me in the direction of the FOS to complain. Totally ignore the breaking of the BCOB rules on 'Set-off' and not confirmed that the Application Form is what they will rely on in court.

 

Can I complain to the FSO and make a small claim for the money they took without asking, interest & charges incurred and my time etc? Which would be best to do? Do I complain to the OFT and the ICO as well (no proof that I consented to date processing.

 

To recap, SAR confirmed no CCA, repeatedly confirmed no CCA, sent out an app form from 1996 with no T & C's and nothing on the form re repayment/interest etc (all the req stuff) stating it was acceptable under the 1983 Act on copies of documents. No mention of Carey and not reconstituted. There are 2 other things that kill all they say dead in the water, but I have not posted them and wont, will save for in front of a judge if it happens

 

Thanks.

[spartathisis]

FSO helpline have just told me that a bank has every right to 'Set off', changed his tune when I told him about BCOB 5.1.3A! Aren't they supposed to know these things?

[spartathisis]

Back again! Well after playing letter ping pong (and receiving final demand & DN) HSBC are now stating they will not respond because I am not signing my letters by hand! I have responded by writing their letter back at them as their letters are never signed.

 

I will be sending the next reply this week and asking the question "Do HSBC take no action without a valid signature?" Hopefully they agree as they cannot provide a CCA and produced a blank app form (no t & c's or any prescribed terms).

[citizenB]

Oh rubbish.. unless it is a legal document, then you are entitled to print or use a digital signature.

 

Ask them for the legislation that allows them to ignore your letter because it isnt signed by hand !

[the_shadow]

Its a sure sign of losing the argument if they have to resort to such a petty retort to your correspondence.

 

 

S.

[spartathisis]

I have had great fun writing back in the style of HSBC

 

The final demand highlighted certain words, my response picked out the words "Do not respond to HSBC demands". Such fun.

[spartathisis]

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=37098&d=1343805177

 

Cerbs: Would I be right in thinking that the following excerpt from the link you provided means the ICO believes if no record of an agreement exists then recording of information is illegal? Not sure what they mean by 'Normally' though. HSBC just defaulted me, but admit in writing no agreement exists. my thread here: http://www.consumeractiongroup.co.uk...C-no-CCA/page7

 

Accuracy of a lender’s default records

 

39 Records

 

Any default record should be accurate. We normally expect a lender to keep records that are necessary to show an agreement exists and to support filing a default. We would also expect a lender to be able to produce evidence to justify a default record they had placed on a credit reference file. Not having any supporting records may indicate a breach of the data protection principle requiring personal data to be adequate, relevant and not excessive for the purpose for which it is processed. A record that a notice of an intention to file a default was sent, if not a copy of the notice itself, will help lenders to comply with this requirement.

 

 

Also how does this impact on reporting of data if no CCA admitted?

 

2 The Data Protection Act 1998, in the data protection principles, sets legally enforceable standards for organisations. The principles require, among other things, that:

 

• personal data is processed fairly and lawfully

[the_shadow]

No, if they can show financial records that prove you had an account even without an agreement then it will pass the test. Financial info is supporting info.

 

S.

[BRIGADIER2JCS]

The ICOs statements on many subjects are full of phrases such as:

 

 

''Although we might expect'' ''normally we would expect to see''

''we belive that ithey should, but there is explicit obligation'' etc.

[spartathisis]

No, if they can show financial records that prove you had an account even without an agreement then it will pass the test. Financial info is supporting info.

 

S.

 

How does that square with this section of the DPA 1998 http://www.legislation.gov.uk/ukpga/1998/29/schedule/2 ?

 

I have repeatedly asked for proof of my acceptance of data processing and all HSBC state is it was part of the contract (which they admit they have no copy of). If they cannot prove I accepted data processing then surely they cannot do it? This ties in with the ICO section above 'Must be lawful.'

 

HSBC state I opened the account in 1996 (the switch over to from Access to Mastercard/Visa) but I know it was in the late 80's in branch with no CCA just a signature to show it was me and was a Access card. So I know there was no CCA signed ever

 

Not being awkward just want all the avenues sorted. Ta

[the_shadow]

Ok, Well I'm only talking about reporting on your credit file here but being devils advocate I would say that if they can show other accounts at that time with agreements that explicitly state "you agree to the data processing blah blah blah" and a set method/workflow that is processed for new customers that includes sending out agreements etc then it will be deemed you must have done so in the past.

 

Remember we are not dealing with absolute proof here. Its a balance of probabilities and the ombudsman's decision until in front of a judge and then dependent on track.

 

S.

[spartathisis]

But surely the emphasis is on 'Lawful', I know there is no real definition on it, but the bottom line is that consent must have been given otherwise any processing of any info could be carried out.

 

Looking through same doc (ICO) there is this:

 

Accuracy of a lender’s default records

 

39 Records

 

Any default record should be accurate. We normally expect a lender to keep records that are necessary to show an agreement exists and to support filing a default.

 

 

Indication that the ICO know this is a tricky area perhaps?

[the_shadow]

Yes but there is also "implied consent", as you continued to use the account and did not complain about your data being processed, you now complain as the data reported is not complimentary?

 

Any updated t&c that you have been sent and I'm sure there were lots would have had the section of data reporting inside them also.

 

Dont get me wrong, if you can stop them reporting then I'll applaud you for doing it.

 

If you think your arguments have merit then put in a complaint to the ICO and see what they come back with.

 

S.

[BRIGADIER2JCS]

You have your answer above the ICO would normally ''EXPECT''

records to be kept ''statements showing useage and payment are

considered record that a contract/agreement exists or existed.''

I have seen this tried and accepted.

English civil law is a balance of probabilities and reasonableness

not as criminal law beyond reasonable doubt.

[spartathisis]

The new EU framework to be discussed in the EU Parliament, enforceable by 2014? Implied consent has no place and it must be explicit. I still do not understand how data must be currently obtained 'Lawfully and with consent', but implied can be acceptable?

 

The rights of the citizen

 

Explicit consent

 

"Everyone has the right to the protection of personal data concerning him or her", under Article 8 of the EU's Charter of Fundamental Rights. One of the main objectives of the new framework is to try to better ensure that citizens know what is happening with their personal data. Citizens should know how, and by whom, data is being collected and processed, and where it is being used and shared.

The new framework has interpreted consent to mean a "freely given specific, informed and explicit indication of the data subject's wishes". Data controllers, under the new framework, can no longer rely on implied consent to process personal data. Previously, there was a distinction between general personal data and sensitive personal data with, in the UK at least, the requirement for explicit consent only necessary for sensitive personal data. It is proposed that this will change, fundamentally altering how organisations will need to go about collecting personal data in the future.

The new framework proposes that, where consent is required, that consent must be informed and explicit, meaning that data controllers must be able to prove that such consent was obtained (and bear the burden of such proof). For organisations, in particular those that collect large amounts of personal data, this is going to be a significant challenge.

Those organisations that have previously relied on implicit consent (who will be in the vast majority) will now require changes to their working methods, and all organisations will need to consider how they are going to record and store the evidence of such consent to ensure that they have a clear audit trail in case a supervisory authority (or the data subject) demands to see it.

 

Brig: If, as you say, civil law is a balance of probabilities, does that mean that ALL Acts of Parliament can be interpreted differently to how they were intended by the authors of said Acts? Is there any point in any civil action if the law can be ignored based on probability?

[spartathisis]

Relevant EU legislation over-riding any "Probability or reasonableness" in the English Court system?

 

http://www.eucharter.org/home.php?page_id=15

 

We do appear to focus on the English law, but EU trumps it and there does look to be a number of issues that affect CRA's.

 

Article 8 in the Charter of Fundamental

 

Rights of the European Union3: “Protection of personal data: Everyone has the right to the

protection of personal data concerning him or her. Such data must be processed fairly for

specified purposes and on the basis of the consent of the person concerned or some other

legitimate basis laid down by law. Everyone has the right of access to data which has been

collected concerning him or her, and the right to have it rectified”.

 

The ruling of European Court of Justice (ECJ) in Case C-101/01, Bodil Lindqvist7 regarding data protection (the first of its kind), has important implications because it clarifies to individuals and companies that personal data is protected and no one can use it without prior authorisation. This was a useful warning given by ECJ to those interested in using, manipulating, and accessing data, with no right or consent. It was a useful start, because since then more and more EU countries used this Directive in the right direction. Also, it was a clarification given to those countries, which did not know what the Directive 95/46/EC8 meant: data is protected not just through the privacy perspective but as a fundamental right as well.

 

7 EJC, 6 November 2003 (Lindqvist, C-101/01), Criminal Proceedings against Bodil Lindqvist , Accessed 10/06/2010.

 

In this particular case the human right to data protection was definitely weighting more than the human right to freedom of expression in the ECJ’s view, because someone’s private information has the same value as someone’s right to express his/her owns beliefs, when that person uses a third party’s private information with no consent. In this case, violating fundamental freedoms such data protection for the purpose of expressing personal beliefs, was found to be wrong by the ECJ.

As a conclusion, data protection is a fundamental right and should be granted and protected as any other fundamental rights. Many people are not aware that the information concerning their person is protected which leads unfortunately to many abuses from authorities,internet providers, online businesses and many others. We all could hope that in time, following important ECJ rulings as the one described above9, people will consider more and more seriously their fundamental right to data protection.

 

Consultation doc on the issue from 2008, 40 million accounts with NO consent as they were taken out before the introduction of Fair Processing Notices. http://www.bis.gov.uk/files/file44412.pdf

[spartathisis]

Has anyone had any luck with unjust enrichment re: no CCA and making payments in error i.e. mistake of fact/law as in Kleinwort Benson v Lincoln City Council? Nothing about probability/reasonableness

 

http://www.publications.parliament.uk/pa/ld199798/ldjudgmt/jd981029/klein01.htm

 

No CCA, no signature = no t & c's/no acceptance of charges/payments/interest

[spartathisis]

HSBC customer service team have looked into my complaint again and cannot find any basis for a complaint. They will continue to ask for balance outstanding. Nothing new there then.

 

And yet they have still ignored the fact that they do not have a CCA, too busy laundering drug money no doubt

[NodNodWinkWink]

Hi sportathisis

 

Have taken a brief look at this thread of yours.

 

Regretfully I could not possibly read through all 146 posts.

 

However here are some further points to consider (Unless these have all ready been covered - then apologies for post).

 

1 How did you arrange the Consumer Credit Act contract ? Was it by Phone , Letter , Fax or Face to Face.

2 Did you make the initial approach or was it via unsolicited contact from HSBC?

3 As you know, under normal Credit Applications Bankers apply to Credit Reference Agencies to check credit worthiness and past history records so they should have that on their system which will go in your favor- thus indicating and pointing to a contract under CCA law .

4 If you have past records from a Credit Reference agency at round the time you think the contract took place then check them over too. You could serve a DPA on Credit Agency(s) to see what they have held from just before the time you believe the Credit contract commenced. Every little helps!

 

BTW sportathisis I thought it best to reply direct via your thread and not mine, keeps it neat and tidy for you and me.

 

NNWW

Edited September 12, 2012 by NodNodWinkWink
An afterthought added to assist member

[spartathisis]

Hi.

 

Mid 80's visit to branch I banked at, asked for one and they got it set up and sent out, thats it. No CCA ever signed, no t & c's, nothing. They have told me the account was opened in1996 and have sent a recon with just my name and address filled in (by them). The recon does not have any prescribed terms, nor came with any t & c's either. At the time they said I opened the account I had been unemployed for 9 months, my mortgage at the time was with HSBC and was being paid for by the DSS, dont really think they would have given me a credit card 1996 was when Access became Mastercard and they changed over officially or so I have read.

 

They insist the recon is sufficient and quote some Act on copies of documents, but not Carey v HSBC. I did not do a s77/78/79 so they shouldn't have supplied a recon, but in the same breath they tell me repeatedly they have no CCA.

 

I am currently looking into unjust enrichment due to mistake of fact i.e. no contract = goods bought were a 'gift' and no reason to pay back, bank should have known no CCA and have kept money paid to them incorrectly. Would include charges/interest/payments made since card inception & interest on money paid! May not get anywhere but will see how things progress. Have found a number of cases that went to appeal to the House of Lords and found in favour of those paying without a contract in place. They were for mistake of law, but mistake of fact is recognised already and so has existed for a long time.

[Old Cogger]

sounds so familiar case.

[NodNodWinkWink]

Hi spartathisis

 

Clearly, from what you say. H.S.B.C. have confirmed to you that they do have records of your contract dating from 1996.

 

The current D.P.Act 1998 did not come into force until year 2000.

 

Therefore your Data records would have been stored and recorded by H.S.B.C. [or former legal owner in 1996, who would have passed on your DATA to H.S.B.C. the current Data Controller] under the previous D.P.Act 1984.

 

Which covered DATA stored on computer only and it should have been :-

........obtained legally

........held only for lawful purposes

........used in accordance with declared purpose(s)

........adequate, relevant and not excessive in relation to the purpose for which they are held

........accurate and, where necessary, kept up to date

........held no longer than is necessary for the purpose for which they are held (Which clearly must be available today 16th September 2012)

........able to allow individuals to access information held about them and where appropriate correct or erase it and have access to it!

........surrounded by proper security.

 

IMPORTANT INFO - this is a very brief summary of the changes to original Act of 1984

 

1 The original Act only applied to data that was personal to you and was held on computers but now the current Act covers all data that is personal to you and that is recorded as part of a "relevant filing system".

 

2 Data users must have a reason for processing such data – either the data subject must explicitly agree to this or has given implied consent, which would be very much dependent upon the circumstances for the Data Controller to determine such implied consent obtained would be legally enforceable or the processing must serve some legal or commercial purpose and it must not be prejudicial to the subject.

 

3 The data subject has a right to know the identity of the data controller (e.g. an employer) and the purpose for which the data is stored.

 

4 When such data is stored, the data subject has the right to know the purpose of storing the data and who may see the information; the subject may also request a copy of the information.

 

5 An individual can require a Data Controller to cease processing within a reasonable time if it is otherwise likely to cause substantial damage or "emotional/physical-distress", either to the individual concerned or to another individual. This includes a right to be removed from a mailing or marketing list of an organization that may be involved in direct marketing.

 

6 In the event of a breach of the current Act, any individual who suffers damage or "emotional/physical-distress" as a result. is entitled to compensation. Furthermore, if a Court rules that data relating to an individual is inaccurate, then the Data Controller can be required to delete or amend the data.

 

The comments by the-shadow on 1st August are very pertinent - but if the Data Controller has no evidence whatever of your original (explicit) consent then there may be the basis of a claim - because as I see matters, the original pre-contract terms (obtaining explicit consent before granting the loan) goes to the root of and should continue to run with your contract - hence the subject of your complaint.

 

Hope these observations and comments assist you........

 

NodNodWinkWink

 

Note - I have adjusted my content several times to remove any possible well meaning but misleading references/links by CAG ADMIN - I'm not happy that distress is linked to Bailiff booklet!!!!!!

 

PLEASE NOTE: Any advice and or opinions given by NodNodWinkWink are personal, are not endorsed by Consumer Action Group, and are only offered informally, and without any liability whatsoever. 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

Edited September 16, 2012 by NodNodWinkWink
changed 'is' to 'are' in signature

[spartathisis]

Hi Nod

 

6 months on and I return to read your post, thank you.

 

Had a lot going on and little contact with HSBC/Metroplitan since, just letters going back n forth "You owe us", "Er, no I dont" kind of stuff.

 

Now been passed to DG Solicitors (ooooo scary) and their 'Pre-sue Unit', looks like they have never heard of litigation.

 

I am very confident they have no idea when the card was sent out as they have said 'sometime in 1996', 'January 1996' and 'around 1996', the recon sent does not meet the requirements set out in CCA or the conditions Judge Waksman required in the case they won, Carey v HSBC!

 

They are asking me to pay over the phone with a credit card or debit card, thought that was not allowed by the OFT (encouraging the increase in debt)

 

Will probably be on here more often for a while, been really stretched for time in last 7 months