HSBC claiming I owe money with little evidence

[arcticsponge]

Hi Guys,

 

This may be simpler and really I am looking for confirmation that I am going in the right direction but:

 

In October 2002 I took out an £800 12 month loan with HSBC; with no bank account, HSBC opened a new account from which to take the funds.

 

I finished paying the loan in October 2003 (just after I left for uni) and as far as I am concerned, this was the last time I used the account until October 2005 when I for some reason (not sure why), I deposited the amount of £37.52 - not sure as to the precise nature of the amount, but I do remember the purpose of the visit to the branch was to gain some mortgage literature.

 

I also remember at this time changing my address to reflect my uni address (when I left for uni, I left my parents house permanently).

 

Fast forward to February 2012, I was contacted by Lowells about an outstanding debt of £327.52 owed to HSBC - it seemed very random given that HSBC had not contacted me in the past regarding this so I advised Lowells that until Lowells / HSBC can prove the debt was mine, that I shall be disputing.

 

Lowells informed me that they would go and request the statements from HSBC.

 

I remained in regular contact with Lowells who informed me that they were still waiting on the statements.

 

Finally, on the 9th June, the statements turned-up, the trouble is, HSBC had sent 60 pages of statement starting from statement page 034 dated 19 July 2005 which starts with an opening balance of £227.37 and nothing else.

 

Lowells have written in their letter that "they see no reason why they are not entitled for me to pay the debt" so I called them and advised that a balance brought forward does constitute proof that I rang-up the debt providing them with a couple of scenarios one being that I could have decided to take-out student possessions insurance with them, then cancelled within the cooling-off period and that this debt could therefore be for a first payment that was never refunded but without the missing statements, we will not know what the debt is for; I should add at this point that I did receive a zero-balanced loan statement so I know it is not for this.

 

Lowells advised that they did not expect HSBC to hold statements back any further than 6 years whereas I said that until HSBC can prove that the debt is mine the balance shall remain in dispute.

 

Lowells did say whilst I was on the phone that the account was defaulted in 2009 and that HSBC would have been contacting me for some time before, yet the only address HSBC have ever held for me was my parents address, this seems odd to me since I changed the address in 2005, 2006 and 2007, also, I advised them that my parents sold their house in 2006 so should they have tried to send letters, it was likely that the mail would have been returned (hopefully).

 

Unfortunately, due to a mistake of my own, the plot thickens.

 

I know how this can look but, the previous evening 08/06/2012, I had received a letter from Lowells asking for the amount for which I contacted the and advised that I had not yet received the statements. I then entered into a dialogue with the girl during which point whilst I persistently disputed the debt, I asked about the default, now being on hold, and could it be removed until investigations had completed, she advised not but she also advised that one possible solution to cleaning my credit file would be to begin payments so that it would "look good on my file" and then to claim the amount back if the debt subsequently proves to not be mine.

 

Being straight after a particularly long day and my mind not being in 'alert' mode, whilst I continued that the debt was in dispute and she too accepted this, I accepted this proposition which the following day Lowells sought to use against me as "my accepting the debt"; I have since cancelled my payment arrangement citing that HSBC need to prove that the debt is mine but Lowells are still seeking to rely on my acceptance of a payment plan as grounds that I accepted the debt.

 

Even though during the course of the call (the second call once the statements had been received 09/06/2012), Lowells sought to control the call I maintained my position that I shall dispute the debt until it is proven and it is likely that this would also be a court's position should we go down the legal route.

 

At this Lowells said that at least for now, if I am disputing the debt then collections activity shall commence though it is currently not in their interests to go legal - yet.

 

I want to know where I stand with this and whether I am in the right or does a balance on an account with no supporting evidence that the debt is mine constitute a recoverable debt?

 

I also want to know where I stand with the 'accepted' debt and also, what would be the best course of action regarding the forthcoming collections activity and finally, in the circumstances with HSBC unable / unwilling to provide any supporting evidence that I owe the debt, is it legally enforceable?

 

--

I should add, that whilst the statements open on page 34 [19/05/2005] with an opening balance of £227.37D, with exception to the £32.57 I deposited in October 2005, the final balance of £327.52D is solely made-up of their interest over the next 4 years.

[Conniff]

You only have these problems because you telephoned them. Never ever talk on the phone to a debt collecting company - let this be a warning to anyone who reads it.

 

Did these statements come direct from HSBC or come from Lowells?

[renegadeimp]

Lowells up to their dirty tricks again.

[reallymadwoman]

Isn't this statute barred anyway if the last transaction was 2005?

[citizenB]

I think it might be in your interest to send a Subject Access Request to HSBC.

 

There is a template letter in the CAG library, linked at the top of each screen - you will need to send £10.00 with the request and they have 40 calendar days to comply.

 

It seems as though banks have been busy shredding information older than 6 years (or claiming to have done so) so it is unlikely you will receive information regarding the opening of the account. However, you should receive a communications log, a kind of diary of events. So if Lowells are claiming that HSBC have been communicating (or attempting to) since 2009 the information should be logged there.

 

IMHO, if Lowells are claiming that no information is available.. then how can it be established you owe anything at all?

[citizenB]

You might also want to check your credit files to see what has been recorded on those.

 

If the last transaction on the account was in 2005 - why would HSBC wait until 2009 to issue a default??

 

I suggest you send off the SAR, check your credit files and stay off the phone to Lowells - regardless of any threats they make.

[rdm2006]

OFT guidelines say there should be NO collection activity whilst it is in dispute so lowells need reporting for giving false info

[Conniff]

Yes, it is statute barred so no further communication is required or necessary. You can forget about it completely or if you want, send Lowells a letter telling them it is statute barred and you will not be paying it.

[arcticsponge]

Thank-you everyone.

 

I have regularly checked my credit files Experian & Equifax, there was nothing on them in April, neither has anything ever been registered at least as far back to 2006 - may have to re-check now though.

 

I was thinking was this dsb based on no activity and my last payment towards the debt being Oct 2005 though I wasn't sure as to whether dsb would come into effect from Feb 09 when the account was closed - also seems strange that it has taken 3 years for the debt to come to me.

 

I shall put through a SAR to HSBC and I shall be contacting Lowells by post to advise that I do not accept the debt, to advise them of the OFT guidlines during a dispute (per rdm) and that I believe the debt is statute barred.

 

Whilst the statements were originally printed by HSBC, they were sent to me from Lowells with the letter I first spoke of wherein they are saying that they do not see any reason for my non-payment.

 

Just to be certain, I presume that where no proof exists that the debt is mine or if the rules concerning dsb have been met then any threats made by Lowells are just that and they have no legal recourse?

 

Also, whilst I had no default listed against me in April, could Lowells or even HSBC still register one against me now and if so, how do I go about removing it?

[citizenB]

http://www.consumeractiongroup.co.uk/forum/showthread.php?353593-ICO-document-Data-Protection-Credit-Explained

 

The Information Commissioner has just issued a document which explains all things "default" and recording on CR files - there is a section which deals with getting incorrect information removed.

[reallymadwoman]

Make sure that in all communication you refer to the 'alleged' debt which, even if it exists, is statute barred.

[arcticsponge]

How do I seek to limit the damage done by my own error of agreeing to make payments towards the debt? Whilst I maintained during the call that the debt isn't mine, and was thus following their advise that clearing the balance was the only way that I could remove it from my credit file, I did make a payment of £1.01 on 08/06/2012 - my concern is that this would be taken as my accepting the debt (despite me saying that I hadn't) and would thus remove dsb defence as they would seek to rely on this to prove:

i. That I accepted the debt was mine

ii. That I made a payment towards the debt and so the 6 year clock would begin from then.

 

This would be even more the case if they 'lost' their recordings wherein I continuously made it clear that the debt wasn't mine and that I am not accepting it; it would then literally be a case of my word against theirs with a tiny yet very significant payment of acceptance.

 

I'm guessing this is more a case of shot in foot and the only defence I can rely on is to cause HSBC / Lowells to prove the debt is mine.

[Old Cogger]

If HSBC could enforce the debt they would of by now, they are aggressive, if there is any doubt they sale the debt, it would seem from monitoring peeps experiances, that is why they go thru Northampton C.C. like Barclaycard etc as they do not have to produce CCA aggreements at that stage, hoping for a persons ignorance to the rule, I may be wrong.

 

If any allegded debt is statute barred then that is it as long as you informed the DCA etc the fact and you will not be making any contribution to the alleged debt, any payment after would be non performing as to start the period again.

 

There are too many Statute Barred DCAs who play on peeps ignorance to make a quick Buck (as I learnt by my mistake years ago), that is the dirty game of commerce (greed).

Edited June 12, 2012 by Old Cogger

[Conniff]

This would be even more the case if they 'lost' their recordings wherein I continuously made it clear that the debt wasn't mine and that I am not accepting it; it would then literally be a case of my word against theirs with a tiny yet very significant payment of acceptance.

 

Get that SAR off today and make sure you state clearly that you want a copy of the telephone conversation. If they say they have lost it, that is as good as having a copy, and this time it will be in a letter as you won't be speaking to them ever again on the phone will you!

 

I am amending what I said above, you don't need an sar to anyone, you have nothing to prove to anyone. It is up to Lowells to show that you do and not you to show that you don't.

Also as this is statute barred, it can never become 'un'statute barred no matter if you made a payment or not.

 

Just check your cra and if they have put anything on that, then you can demand they remove it and not make a 'satisfied' or such entry.

Edited June 12, 2012 by Conniff

[citizenB]

How do I seek to limit the damage done by my own error of agreeing to make payments towards the debt? Whilst I maintained during the call that the debt isn't mine, and was thus following their advise that clearing the balance was the only way that I could remove it from my credit file, I did make a payment of £1.01 on 08/06/2012 - my concern is that this would be taken as my accepting the debt (despite me saying that I hadn't) and would thus remove dsb defence as they would seek to rely on this to prove:

i. That I accepted the debt was mine

ii. That I made a payment towards the debt and so the 6 year clock would begin from then.

 

This would be even more the case if they 'lost' their recordings wherein I continuously made it clear that the debt wasn't mine and that I am not accepting it; it would then literally be a case of my word against theirs with a tiny yet very significant payment of acceptance.

 

I'm guessing this is more a case of shot in foot and the only defence I can rely on is to cause HSBC / Lowells to prove the debt is mine.

 

 

So, even though you strenuously denied that the debt was yours - you made payment under duress ..... eg they stated regardless whether the debt was yours, unless it was paid they would continue to trash your records and harrass you"

 

However, whether the debt is yours or not - it was statute barred at the time you were pressured into paying and the company must have been aware of that.

 

£1.01 is a very odd amount to pay ??

[Conniff]

£1.01 is a very odd amount to pay ??

 

They probably think they have come up with some smart arsed way to get around SB.

[Old Cogger]

£1.01, anybody argue CCA request = £1.00 only made (used for payment under normal CCA request) maybe 0.01pence to-wards alledged debt, so a debt would show 1 pence paid to stop statute debt, may be not the case but the way they try sneaky ways never know it may be happeneing to unaware peeps when treatograms arrive, just a thought.

[Bang!]

What is the difference between this and the offence of attempting to obtain money by deception?

[arcticsponge]

Thank-you everyone for your advice so far.

 

Silverdale, yes the deposit is showing on the statement and (despite it being some time now) the degree to which I alluded to was Law with specialism in (get this) consumer and contracts - its just that I have now spent several years in business intelligence and am a little flakey in the area; in short, I have a very good memory (lawyers) memory.

 

I think that as Mike has pointed out, this could be a new one maybe? in the DCA's trying to circumvent the statute barred and to revive the debt or at least the clock and then trying it on in the hope that their victim (probably the correct terminology since they are mostly vampires) just accepts and pays.

 

I'm guessing that there really is no 'real' way in being able to cause the debt to go away, HSBC cannot pursue in any way except for continuing to ask for it, dca's can try to collect but they only need to be told that the debt is unenforceable for them to pass it back, the biggest threat right now is suppose I get the default removed from my file (if there is one), what is to stop HSBC from registering another one?

[arcticsponge]

I know you were trying to confirm and like you, once the statement is no longer available to the account owner, I too wouldn't be surprised if they started to 'add' transactions in the hope that individuals do not notice; admittedly, whilst I do remember the visit to the branch, and changing my address (it was actually quite a nice autumn afternoon, about 18 degrees, nice and sunny - for Pontypridd) I actually cannot remember making the payment, this also seems especially strange as the only bank accounts I have ever had open and active are my personal account with Barclays (opened and in use pre-uni) and my Lloyds TSB student account. I cannot fathom for the life of me why I would make a deposit to HSBC.

[Conniff]

So what are your intentions ?

[arcticsponge]

I intend to follow all the advice; Lowells have already called me 3 times before 12.

 

I shall send them I stifley worded letter of complaint advising that the alleged debt is both in dispute so they are in breach of reg 3.9(j) of the oft guidelines and so collections activity must cease with immediate effect, that the debt is not mine and I do not acknowledge the debt and finally thta the debt is statute barred under the Limitations Act 1980 and as per Silverdale, I shall request all communication to cease lest they wish for me to take my complaint to the fos.

 

My intention is to just ignore them thereafter though I am unsure of how to handle their rebuttle's not least that I suspect most communication to be call based as opposed to letter which may make it difficult to take my complaint further.

[arcticsponge]

Oh the pain of it... I am in the nasty habit of destroying anything older than 5 years grr @ self!

 

The final statement in the batch they sent over does show a zero balance (back in 2009 when HSBC closed the account) but Lowells have explained this as being zero-ed in prep for its sale.

 

I still find it boggling why it has taken three years from when the account was closed to when Lowells finally made contact.

 

I also find it odd that dca's would take-on debts that are clearly statute barred or is it more of a case that they shall attempt to pursue until the debtor states as such that they finally give in?

[renegadeimp]

but Lowells have explained this as being zero-ed in prep for its sale.

 

Never take their word for it. Tell them to prove it or to Foxtrot Oscar.

[arcticsponge]

Again, this is a case of me looking at & believing what is written on the statement.

 

How many calls in a day constitutes harrassment? I am currently up to 6, though I am unsure of how I am going to prove it. Hopefully this shall stop shortly after they receive my complaint letter.