HSBC v Pipster - Court Tomorrow!! *****Discontinued*****

[vint1954]

Right with regards to the loan, they had sent me through the CCA which is listed below. I always was under the impression that they couldn't just pay it off with my current account!! Is the CCA valid?

 

http://i67.photobucket.com/albums/h294/Pipster2797/Doc1Page1of4.jpg

http://i67.photobucket.com/albums/h294/Pipster2797/Doc1Page2of4.jpg

http://i67.photobucket.com/albums/h294/Pipster2797/Doc1Page3of4.jpg

4th page is just blank and they also in the same pack sent the below

 

http://i67.photobucket.com/albums/h294/Pipster2797/Doc2Page1of4.jpg

http://i67.photobucket.com/albums/h294/Pipster2797/Doc2Page2of4.jpg

http://i67.photobucket.com/albums/h294/Pipster2797/Doc2Page3of4.jpg

http://i67.photobucket.com/albums/h294/Pipster2797/Doc2Page4of4.jpg

 

Current Account - The charges letter was sent to them after they had defaulted me. They have placed the account on hold at the moment and no payments are being made untilt the hearing of the test case. I haven't applied to the court as didn't know I had to. I just thought it would all be sorted out once the test case was heard.

 

Credit Card - Still no CCA at all for this one. I have had a blank one but that is it. This was also defaulted before I asked for the CCA.

 

That incomplere SAR letter will be posted this morning

 

Are they still taking charges out of your current account? If so, it may be prudent to open another current account with a different Bank. Just leave the HSBC account dormant pending charges claim.

[Pipster2797]

no they stopped taking charges when they defaulted all 3 accounts.

 

I opened another account with another bank months before they defaulted me. All of those charges are because of them taking the payments for the loan and credit card and pushing me over the limit and then being charged because the charges had pushed me over!!

 

I know they didn't send me any Default Notices or Termination letters for any of the 3 accounts.

[johnnymitch]

hi Vint 1954 , welcome(back?) to the forum

 

To enable you to get an answer which is specific to your situation , could you please open your own thread and copy/paste the above query into it - if you have a problem ,come back and I'll try to get a Mod to transfer it for you ....

[johnnymitch]

Also Thank You for the help. It does get very stressful at times and gets on top with me to the point where I can't sleep and feel like caving in and this site has been a god send so thank you!! :)

 

I think a lot of us on this site have been where you are at some point , pipster , - that's why it's good to know that you're not on your own , there is plenty of support on here - you only have to ask and someone will answer.

 

Try not to let the bank's bullying tactics get you down , they prey on people's fears to get them even deeper in debt to them - if you stand up to them , with the assistance you get on here , they'll soon back off ......

[johnnymitch]

Spot on Johnny thanks mate

 

pete

 

No problem pete - I knew I had it somewhere - just couldn't find it until you asked for a 'bugger-off ' letter - then I knew ! (laffin!)

[vint1954]

hi Vint 1954 , welcome(back?) to the forum

 

To enable you to get an answer which is specific to your situation , could you please open your own thread and copy/paste the above query into it - if you have a problem ,come back and I'll try to get a Mod to transfer it for you ....

 

hi Johnny,

 

I've not been away, just plodding on with the letters and such. I do try to log in most days.

 

Vint

[johnnymitch]

Sorry vint - just realised that was pipster's quote on your post - Senior moment ........ you were just assisting , not asking for help.....

[vint1954]

Sorry vint - just realised that was pipster's quote on your post - Senior moment ........ you were just assisting , not asking for help.....

 

We all have senior moments. If you ask Matron, she can usually help:lol:

[johnnymitch]

Yeah - OK !

[Pipster2797]

**UPDATE**

 

I sent the letter to HSBC saying that in the SAR they had not inculded the Default Notices, Termination Letters and any CCA. They have replied today with the following letter

 

 

 

Where do I stand now? I know I didn't get a default notice for any account but how can I prove this?

 

 

Also with regards to the CCA as Metropolitan Collection Services are acting for the account I also asked them for the CCA with the CPR 31.16 letter and they have wrote back ignoring what Ive sent and just said that under the CCA section 78(1) they are not required to send this. I did state that this is in my letter

 

I must stress this request is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedure Rules (Pre action protocols and Part 31.16) and therefore unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances

Here is the letter, I just feel I'm going round in circles and they are just delaying things left, right and centre.

[Pipster2797]

anyone with any ideas of what I can do next?

[vint1954]

anyone with any ideas of what I can do next?

 

Hi pipster,

 

Is this regarding the credit card, or Loan agreement.

[Pipster2797]

well both as they havent sent default notices for both any accounts and I cant remember ever getting any to the point I think they didn't send them.

 

The CCA for the Credit Card still hasn't been sent to me and they have pretty much admitted they dont have it in their latest letter!!

[MARTIN3030]

HSBC data controller is IMHO correct in what they say.

I will ask a team collegue to take as look as regards the MCS response.

[Pipster2797]

seriously?

 

I don't understand how they prove they have sent a DN, as any creditor would just say I have sent one and it was in the correct format etc etc and the normal person on the street wouldn't have a leg to stand on.

[42man]

Hi Pipster.....you might like to have a read of this....(apologies if you have seen it already) this shows how important it is for a default....

 

My feeling is that you might have to let them bring on legal action....as you could at allocation stage ask the judge to order the claimant to produce a compliant default notice and possibly proof of service....

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

As for the agreement, if you want to see a copy of your signed agreement then you could try this... - you've probably seen this thread http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/165349-smt37-morgan-stanley-goldfish-3.html#post2119750

 

Without a signed agreement then i'd say they are stuffed, but it all comes down to how well you present your case in court and the judge you get on the day....

[42man]

It is staggering that default notices are not stored, I had seen one cagger who had a win on a non compliant DN who was stating that banks are now starting to store DN's.....

[Pipster2797]

but by them saying that they haven't any stored in my SAR request surely means that if it goes to court they cant then produce a DN can they? That would mean that they have withheld info in my SAR. Plus on top of that if they produce a DN then they have lied on my the above letter saying they haven't it stored.

 

It should be black and white. Either yes we have it, here is a copy or we don't have it and can't send you it (Which is the way I interept their letter).

[42man]

Does the sar give any indication of when the alleged letters were sent out or when a termination letter was sent out ?

[42man]

On that basis Pipster they have dug themselves a hole !!!

[MARTIN3030]

seriously?

 

I don't understand how they prove they have sent a DN, as any creditor would just say I have sent one and it was in the correct format etc etc and the normal person on the street wouldn't have a leg to stand on.

 

I think the response above gives much clarity to the issues-The data controller in most cases escapes retribution once legal action is commenced.

As has been said-pre-empting them into action should give cause to address the DN issues.

[42man]

You can either let them bring the action on or make a heavily reduced F & F....but request they don't place any adverse information on your credit files....get it in writing....

[42man]

Spot on Martin !!

[Pipster2797]

I couldn' find anything in the SAR to say to say there was a DN sent on X day.

 

Thank You I think I understand it better now. Is there anyway i can get this rolling on by writing to them and basically saying put up or shut up. Or is it better to wait until they take the action to take me to court?

 

Also with the CCA on the credit card as I had requested it under CPR 31.16 and they just ignored me is there anyway again of a letter saying produce it or see you in court?

[MARTIN3030]

They should know what follows-why put yourself out ?

If you are going to say anything it should be to inform them that you feel they have no cause of action but if they want to pursue it,then you will be seeking your costs-AND reserve the right to file complaints with the regulatory bods later.