HSBC NO CCA Received please help

[submissiveguy]

Hi can someone please help me out on this I sent a CCA to HSBC who sent back an application form no agreement so I sent them another letter telling them I want my agreement not an application form, so they have sent this letter in return

 

(Sorry I can't scan it so I've had to type the whole letter)

 

22 September 2011

 

I write with reference to your recent correspondence dated 19 September 2011. I can confirm all documents in accordance with section 78 of the Consumers Credit Act 1974 were originally sent to you on 5 September 2011.

 

We have complied with the requirement of section 78 of the Consumers Credit Act 1974,

in particular we have supplied copies compliant with Regulation 3(2)(b) of the Consumer

(Cancellation Notices and copies of Documents) Regulations 1983. there is no requirement under section 78 that the original or a photocopy of the original signed agreement be provided.

 

In light of recent High Court decision in Carey V HSBC Bank plc 2009 [EWHC]

[3417] QB, we can confirm that, in compliance with a statutory request, made pursuant to

Section 78 of the Consumer Credit Act [1974] ("the Act"), the Bank is able to furnish you with:

 

1. A reconstituted copy of the original application together with a copy of the

original terms and conditions forming part of the agreement;

2. A copy of the terms and conditions currently applicable to your agreement;

3. The latest notice of variation; and

4. A statement of account

 

For the purpose of satisfying Section 61 of the Act, both the Signature Page and original terms and conditions are to be read as one single document. The document therefore complies with requirement of Section 60 and 61 of the Act and all subordinate

regulations.

 

When providing you with Section 78 response the Bank is not under a duty to provide you with copy of agreement which would have met the criteria pursuant to section 61 of the Act as at the time it was signed by you. The section 63 copy of your original terms and conditions (i.e the card carrier copy) which has been provided is sufficient to meet the Banks obligations.

 

Regarding the Signed Application form, we have conducted a reasonable search. and at the time of request, the document cannot be located. It was in our control but is no longer in our possession therefore, a reconstituted copy application was sent with our correspondence on 5 September 2011.

 

Please note, for the avoidance of any doubt , the Bank's position remains that this is a

valid and legally enforceable agreement between the Bank and you. If there is any default of breach of terms of the Bank reserves the right to exercise rights available to it under the credit agreement. We trust that will not be necessary.

 

Accordingly we see no merit in your continued insistence that the documents provided to you are in breach of CCA or any of the underlying regulations.

 

Your Sincerely

 

Cathy Walsh

Senior Department Manager

 

This has confused me could someone please tell me that the above letter is untrue and made up to mislead me? I would really appreciate all the help

[Conniff]

It is true they don't have to supply a copy of the original, but may send you a reconstituted copy,but there are conditions:

 

Carey v HSBC Bank plc

and Associated Cases

Before Judge Waksman, QC

Judgment December 23, 2009

A creditor could satisfy its duty under section 78 of the Consumer Credit Act 1974, to give a debtor, when asked in writing, a copy of the running-account regulated credit agreement and other documents referred to therein, by providing a reconstituted version of the executed agreement, which might be from sources other than the signed version.

 

Judge Waksman, QC, sitting as a Queen’s Bench Division judge, so held in the Mercantile Court at Manchester, when considering six preliminary issues of law in eight selected cases concerning requests for copies of credit card agreements pursuant to section 78 of the 1974 Act: Emma Carey against HSBC Bank plc; Shafeel Younis against Barclays Bank plc; Samantha Conniff against Barclays Bank; Mohammed Adris against the Royal Bank of Scotland plc; Brian Backwell against the Royal Bank of Scotland; Rajan Mandal against the Royal Bank of Scotland; Andrew Light against MBNA Europe Bank Ltd; and Robert Atkinson against Bank of Scotland plc, with the Office of Fair Trading intervening in all cases. Additionally, two applications by the Royal Bank of Scotland and Barclays Bank that the claims of Mohammed Adris and Shafeel Yunis, respectively, had no real prospect of success and should be struck out were granted.

 

Mr David Uff and Mr James Malam for Carey, Conniff, Backwell and Light; Mrs Zoe Thompson and Miss Laura D’Cruz for Yunis; Mr Julian Gun Cuninghame and Mr Bradley Say for Adris, Mandal and Atkinson; Ms Sonia Tolaney and Mr James Macdonald for HSBC Bank; Mr Andrew Mitchell for Barclays Bank; Mr Bankim Thanki, QC and Ms Julia Smith for the Royal Bank of Scotland; Mr Geriant Howells for MBNA Europe Bank; Mr Fred Philpott for Bank of Scotland; Mr Stephen Neville for the Office of Fair Trading.

 

HIS LORDSHIP said that the purpose of his judgment was to give general guidance, in the context of the cases before him, in the hope that that would narrow or eliminate the issues arising in the hundreds of other similar claims issued in county courts around the country, many of which had been stayed pending the outcome in the proceedings before his Lordship.

 

His Lordship reached a number of conclusions on the preliminary issues:

First, a section 78 copy had to contain the name and address of the debtor as it was at the time of the execution of the agreement but the creditor could provide those details from whatever source it had of those details and not necessarily from the executed agreement itself.

 

Second, the creditor need not, in complying with section 78, provide a document which would comply, if signed, with the requirements of the Consumer Credit (Agreements) Regulations (SI 1983 No 1553) as to form, as at the date the agreement was made.

 

Third, if an agreement had been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms.

 

Fourth, a breach by a creditor of section 78 did not of itself give rise to an unfair relationship within the meaning of section 140A of the 1974 Act, as inserted by section 19 of the Consumer Credit Act 2006.

 

Fifth, the court had jurisdiction to declare whether in a particular case, there had been a breach of section 78. It would depend on the circumstances of that case as to whether it would be appropriate to grant such a declaration.

 

Section 60 permitted regulations requiring prescribed terms to ensure that a debtor or hirer was made aware of the rights and duties conferred or imposed on him by the agreement, the amount and rate of the total charge for credit in the case of consumer credit agreements, the protection and remedies available, and any other matter which it was desirable for him to be aware of in connection with the agreement.

 

The following principles were correct in the context of section 61 in assessing whether those prescribed terms were “contained” in an executed agreement:

First, it was not sufficient for the piece of paper signed by the debtor merely to cross refer to the prescribed terms without a copy of those terms being supplied to the debtor at the point of signature.

 

Second, a document need not be a single piece of paper.

 

Third, whether several pieces of paper constituted one document was a question of substance not form. In particular, a physical connection between several pieces of paper was not necessary in order for them to constitute one document.

 

Fourth, a physical connection, or one or more physical connections, between several pieces of paper did not necessarily constitute them as one document. Accordingly, where the debtor's signature and the prescribed terms appeared on separate pieces of paper, the questions of whether those pieces of paper together constituted one document was a question of substance and not form.

 

His Lordship held on the assumed facts of the first claim that the prescribed terms were so contained.

[dx100uk]

why are you disputing the debt?

is it not yours?

does it not show on your CRA file?

 

dx

[submissiveguy]

why are you disputing the debt?

is it not yours?

does it not show on your CRA file?

 

dx

 

It is my account that I have had for over 11 years, I asked for my CCA so I could see what was the loan agreement at the time I think it was around £500.00 to start with, and now its well over £8,000 and I have been making payments, towards the account, till they sent me a blank application form I stopped all payments.

 

Could someone please advice me what to do next, as I really don't have a clue I've only learned everything from this form so please help me thanks

[Conniff]

Are you saying you took out a loan 11 years ago for £500 and now it is £8,000 or have you topped up the loan since ?

 

What type of loan is it ?

[submissiveguy]

Are you saying you took out a loan 11 years ago for £500 and now it is £8,000 or have you topped up the loan since ?

 

What type of loan is it ?

 

It was a credit card, with HSBC that had a credit limit of £500.00 t start with, that they increased up year by year and now I'm in the region of £8,000, I have had charges on this account that I never claimed back (its a credit card not a loan sorry)

[the_shadow]

Did the account have any PPI on it all???

 

IMHO you'd be better off reclaiming any charges together with interest than disputing the debt is yours.

 

S.

[the_shadow]

Did the account have any PPI on it all???

 

IMHO you'd be better off reclaiming any charges together with interest than disputing the debt is yours.

 

S.

[dx100uk]

have a look around for post by ims21

then look in his sig

for the spreadsheet to enter the details of your charges to calc your reclaim.

 

dx

[submissiveguy]

Thanks for the response

 

I have looked at the account I don't have PPI only late payment charges, I was thinking can I offer them a full and final payment and move on as I can get to borrow some money from family, I am not avoiding the debt but as my circumstance are its just so hard to make small payments on the account that is going towards the interest.

[ims21]

Hi

 

If you have late payment charges and/or over limit fees you would do well to claim this back (with interest) before considering any full and final. Claiming back the charges could put a considerable dent in the amount you owe.

 

Do you have all of your statements?

 

ims

[submissiveguy]

Hi ims you are correct, I did a SAR in 2007 this is how I know I have charges on the account, but even with claiming them back they would not be more then £500.00, and I own 8k on this account. I wish I could make time go back, I would have never used credit cards.

[ims21]

Hi

 

£500 including compound interest or is it £500 just the charges without any interest computation?

 

ims

[submissiveguy]

Hi ims21 yes it would come to about £500,00 with interest (I guess) what would be the next option please, this is stressful

[ims21]

Hi ims21 yes it would come to about £500,00 with interest (I guess) what would be the next option please, this is stressful

 

You say you guess so you haven't done the calculation I assume.

 

Use the attached spreadsheet to work out what you are due back. Amend your personal details in the blue section and change the APR figure to at least the rate they were charging you on the card. The move to the white list section underneath the coloured bits and list each of the charges you are claiming back. Give the date, a description and an amount. The spreadsheet will do the rest. When you have this figure you will know how much to deduct from the balance being chased and then you will be in a better position to offer a full and final.

 

ims

 

CISheet.xls

[submissiveguy]

You say you guess so you haven't done the calculation I assume.

 

[ATTACH]30409[/ATTACH]

 

Your right I have not done it, but will start doing it today, but seriously its not going to make a big difference

[ims21]

Your right I have not done it, but will start doing it today, but seriously its not going to make a big difference

 

Maybe so but still better to know where you're at before making an offer for a full an final, IMHO of course.

 

Wheny you know exactly what you owe, take a look at No.7 in my siganture as it will give you some pointers.

 

regards

 

ims

[the_shadow]

SubmissiveGuy How's this going?

 

S.

[submissiveguy]

SubmissiveGuy How's this going?

 

S.

 

Hi sorry for the late reply I've not been online as much, as I have 2 jobs now. The progress with HSBC slow just received this from them today morning

 

THIS IS A DEFAULT NOTICE SERVED UNDER SECTION 87 (1) OF THE CONSUMER CREDIT ACT 1974.

 

Guy's it may sound silly but can I just fire off a letter to them offering them a 50% full and final settlement letter? I just don't want to be playing tennis anymore with HSBC. Its xmas soon so they may accept the offer? lol

[dx100uk]

no listen to the advice given

 

you need to get reclaiming

 

those charges will be worth twice that with their age and comp int use the spreadsheet.

 

making an f&f is a waste of money, they'll only mark it as partial settlement nad then set the dca dogs on you for the rest.

 

dx

[Old Cogger]

Hi sorry for the late reply I've not been online as much, as I have 2 jobs now. The progress with HSBC slow just received this from them today morning

 

THIS IS A DEFAULT NOTICE SERVED UNDER SECTION 87 (1) OF THE CONSUMER CREDIT ACT 1974.

 

Guy's it may sound silly but can I just fire off a letter to them offering them a 50% full and final settlement letter? I just don't want to be playing tennis anymore with HSBC. Its xmas soon so they may accept the offer? lol

 

 

HSBC accept your offer???????????????????????? get claiming!!

[submissiveguy]

HSBC accept your offer???????????????????????? get claiming!!

 

Nope I have not offed them anything till I get the right advice from this form Guru I need to clean up my credit file once I have the account settled then yes I can chase them for charges.

[dx100uk]

it might well be that if the markers were due solely to THEIR charges

and you reclaim them and they cough

you can demand the markers are removed

 

dx

[submissiveguy]

Your Letter Reference : xxxxxx

Account No : xxxxxxxxxxxxxxxxxxx

Re: my request under the Consumer Credit Act 1974 - Account now in dispute

 

Thank you for your recent letter dated 11.01.0, the contents of which are noted. I appreciate your quick response to my original letter. However, I have now been advised by a debt charity who are helping me with my debts that the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

My request remains outstanding. An unsigned credit agreement without my details printed onto it, like the one you sent in your reply, does not constitute a true copy of any credit agreement that may or may not have been signed by me on the opening of this account. A blank agreement neither confirms that I am liable for any alleged debt to you, nor gives me any chance to evaluate whether any original agreement was ‘properly executed’.

 

I still require you to send me a true copy of the original credit agreement that you allege exists. As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

 

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enters into a default situation. This occurred on 05.06.08. If the request is not satisfied after a further calendar month, your company commits an offence. Therefore on 05.07.08 this time limit expired.

 

You had until 5th July 2008 to provide me with the true copy I requested. You are now in default of my request. Any account I hold with you is now in legal dispute. Whilst the account remains in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account.

However, I can raise £***, via a gift from my parents which they have offered on condition of full and final settlement of a debt, and I want to offer this as an ex-gratia payment in full and final settlement of the account. This offer is made on the clear understanding that, if accepted, neither you nor any associate company will take any other action to enforce or pursue this debt in any way whatsoever and that we will be released for any liability.

 

I also request that, if accepted, you will make an entry on a credit reference agency file relating to the above account as "satisfied" in full.

 

A payment was due at the beginning of February and this has been made. If you accept the offer, the final payment of £*** will be made asap and no further payment from myself will be made

 

Please provide written agreement of this offer and method of payment.

 

 

I look forward to your reply.

 

Yours faithfully

 

Could someone please tell me if this letter is good or would I need to add anything more to it? thanks guys