Hsbc credit card default notice need removing, mortgage doubled!

[fryman]

Please can someone help,

 

I've read so much on these forums but can't seem to understand my next steps,

 

Am trying to get HSBC to remove a default notice off my credit file, as my mortgage has double.

 

They chased me for over a year and ignored them, I had some letters from Moorcroft and maybe other DCA over a year ago stating stuff like HSBC had sold the debt or they would take me to court etc, but I just ignored them. but its been quite for the last 14 months, as I ignored everything.

 

Debt was rung up by my husband and then he ran off while I was away and I told HSBC it was a fraud but they refused to accept this, even knowing I was out the country and not able to make the purchases.

 

I even am willing to even start paying them like £50 a month so they can remove the default so my mortgage can lower by alot more then £50.

 

Please kindly provide any help possible.

________________________________________________________________________________

I sent them the following letter:

 

HSBC Bank Card Services,

 

Credit Card Number: xxxxxxxxxxxxxxxxx

 

Dear HSBC,

After obtaining a copy of my credit file from Experian I was concerned to note that your company has placed a "Default" notice against an account in my name.

You have responded to Experian stating that I should contact you directly at the above in regards to this matter.

 

The “default” on my Experian report, the account started date is xx/xx/1999 and the default date is xx/xx/2011 with a default Balance of £12,110.

 

Further to this I do not have a recollection of ever receiving such a notice, and I therefore require you to substantiate this data at your earliest convenience.

1. You must supply me with a true copy of the alleged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit). Your obligation also extends to providing a statement of account. I enclose a £1 postal order in payment of the statutory fee, Postal Order Serial Number_____________________________.

 

2. You must supply me with a signed true and certified copy of the original default notice, because I do not recollect receiving this.

 

3. Any deed of assignment if the debt was sold on.

 

I would request that this data is provided to myself within the next 14 days, if you are unable to provide this data then I must insist that it is removed from my files as unsubstantiated.

 

Yours Sincerely,

 

_____________________________

 

 

After 16 days I send a reminder to them as they did not reply the reminder was as follows:

 

HSBC Bank Card Services,

 

Credit Card Number: xxxxxxxxxxxxxxx

 

Dear HSBC,

 

Further to my letter I wrote and sent to you on xx September 2012 via recorded delivery, I haven’t had any response, please find copy of the letter and recorded delivery slip attached.

 

Noting the above could you please kindly respond to my original letter dated xx September 2012, a copy of which is attached and accordingly answer in full the 3 questions contained in the original letter, with which I also sent a postal order.

 

I believe it is your duty and you are under obligation to supply me with the requested information within a given time. Again I request that you provide me with all the requested data in my original letter, within the next 14 days, once again I state if you are unable to provide this data then I must insist that it is removed from my files as unsubstantiated.

 

Yours Sincerely,

 

 

___________________________________

 

 

Today on the 3rd of Ocrober they responded with this:

 

 

 

Dear Madam,

Please find enclosed copy documents as requested for your perusal.

Section 78 (1) of the consumer credit act 1974 requires us to provide "...a copy of the executed agreement (if any)...". Regulation 3 (2) of the consumer credit (cancellation notices and copies of documents) Regulations 1983 allows that certain items may be omitted form such copies, including the signature box and signature.

 

They copy of the executed agreement we must supply is a copy but need not be a photocopy of the signed agreement. Regulation 7 of those regulations also requires us to provide a copy of the executed agreement, as varied, where there is a power to vary the terms of agreement, which there is with your client's card agreement and that power has been exercised to vary the agreement, which again is the case with your client's card agreement.

 

We therefore enclose an up to date copy of the terms and conditions applicable to your clients account, a copy of the latest variation notice issued in respect of your client's account and a reconstituted copy of the agreement form. The variation notice shows that the terms have been varied and therefore in accordance with this legislation the up to date terms and conditions are the appropriate information to produce.

 

With regard to the Signed Application form that you made request for, we have conducted a reasonable search, and at the time of the request, the document could not be located. It was in our control but is no longer in our possession. Therefore we have enclosed a reconstituted copy along with two certified statements duly stamped and signed for your records validating any debt outstanding.

 

Enclosures:

 

Appendix 1 Current Terms and conditions

 

Appendix 2 Notice of Variation to Terms

 

Appendix 3 Historic Terms and Conditions

 

Appendix 4 Copy of Agreement form

 

Appendix 5 copy of Statements

 

 

Connie Smith.

 

___________________________________________________________

 

This what they sent

 

Appendix 1 Current Terms and conditions

- these are just standard printed out t and c's

 

Appendix 2 Notice of Variation to Terms

-these are also just standard print outs

 

Appendix 3 Historic Terms and Conditions

-these are again print outs, please note they all are HSBC - when my account opened it was Midland

 

Appendix 4 Copy of Agreement form

-this looks like a newly printed sheet with just my name and old address hand written on it

view it here: i1281.photobucket.com/albums/a502/fryman1/HSBC_zpsb16295fe.jpg

 

Appendix 5 copy of Statements

-freshly printed out credit card statements for August and September 2012 with a HSBC stamp on them with a sign over it

 

 

Please advise what is next letter I should send, or how to get out this default.

[42man]

Have you read this high court case ? - http://www.bailii.org/ew/cases/EWHC/Comm/2009/2386.html

[fryman]

Hi Is this court case in favour of me or against me?

[42man]

Against you unfortunately....it is basically saying that you have a debt and they are defaulting you....whether they have produced an agreement or not...

[dx100uk]

threads merged

 

please keep to one thread.

 

dx

[dx100uk]

can you expand on the fraud issue

 

what actually happened?

 

what type of account is this too please?

 

dx

[fryman]

I was out the country and He just took my cards and used them, claims it wasn't him but I know it was. I explained to bank but they said, as the correct pin was used I can't do anything.

[fryman]

sorry it was a credit card account

[dx100uk]

that is fraud and you can prove it.

 

when was this?

 

and were the police involved?

 

dx

[noddy997]

I have briefly read this.

 

Only way to prove it was fraud if you was out of the country like you say you are.

 

Find out where (shop, internet, etc) the card/pin was used and when (Date, time etc) and then provide evidence you was out of the country i.e. tickets, immigration papers, passport stamps and so on.

 

If the unauthorised user used your cards at a phyiscal location i.e. a shop then you might be able to obtain CCTV footage which would work to your advantage.

 

HOWEVER, if it was a JOINT account then you have no case as he has a right to use his card for the joint account.

 

The bank saying you cant do anything can be true and a load of bonkers on 2 accounts:

 

1) Can be true as they are saying the correct pin was entered

2) If you provide evidence i.e. CCTV which you will have to obtain or get someone with authority to obtain from stores (if appropriate) then you prove the bank wrong and prove the point that pins are utter useless just like signatures, as say if I had your card I can go to the bank and withdraw money even from a cashier - as long as we are the same sex as it only says "mr, miss/mrs/ms" etc dont think the date of birth comes up nor does ethnic origin and so on.

 

Its about time finger print systems come out or something more specific pins are just pathetic IMO.

 

You will have to be investigative on your own to start off with.

 

Good starting point will be check your statements and see where the card has been used, then work your from there.

[fryman]

I spend months and months trying to prove this, even asked the FOS and the police, but believe it, that no one was interested, just kept saying the correct pin was used so I must have known about it.

 

To be honest I got so tired and run down trying to proof all this, that is why I left and thought what more can I do.

 

I just need that default removed if possible on any ground where HSBC have failed.

[fryman]

I have just discovered these facts:

 

On my credit file its shows a Default Date of 05/1/10

 

The default letter I found:

Dated 14/01/10

 

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

 

later on in the letter it says I can remedy the breach by paying the amount by 31 January 2010

 

Also found a letter Dated:

 

10 May 2010

 

FINAL DEMAND

 

Stating I have 14 days from the date of the letter to repay in full or make a proposal.

 

and if fail to comply debt collectors will be instructed and default details passed to CRA's

 

 

 

Also Letter Dated

 

10 June 2010

 

That my account has been passed onto a DCA

 

and additionally as a defaulting debtor details have been passed to CRA's

 

What am getting at is that before all these letters by default was registered against me.

 

Can I have this default removed?

[fryman]

Found some more interesting information:

 

My credit Card Statements:

 

Nov 2009 shows that that I paid the minimum payment and was fine

Dec 2009 has a late payment charge on it ( first payment missed)

Jan 2010 has payment request for this month and for Dec 2009 payment

Feb 2010 request payment for ( dec, Jan and feb)

 

Default date on my credit report is 05/01/10

When I had only missed Dec 2009 payment,

 

Is this correct?

[citizenB]

Ok, the Default Notice.

 

The fact that they have said "14 days from the date of this letter" makes the notice bad. The Regulations state that a "date" must be given.

 

See below..

 

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

Quote:

SCHEDULE 2

FORM OF DEFAULT NOTICE BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED, BY REASON OF ANY BREACH BY THE

DEBTOR OR HIRER OF A REGULATED AGREEEMENT, TO TERMINATE THE AGREEMENT, DEMAND EARLIER PAYMENT OF ANY

SUM, RECOVER POSSESSION OF ANY GOODS OR LAND, TREAT ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE

AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED OR ENFORCE ANY SECURITY

Regulation 2(2)

Details of agreement

1

A description of the agreement sufficient to identify it.

Parties to agreement

2

(1) the name and a postal address of the creditor or owner.

(2) the name and postal address of the debtor or hirer.

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

 

The highlighted sections are the points to note. They must state a "date" eg 06 October 2012. The remedy date must also be 14 clear days after service. The rules also state that service is as follows:-

 

2 business days for 1st class mail

4 business days for 2nd class or UK Mail

 

So in effect the Default Notice sent to you is incorrect, they have not allowed any time for service. So depending on whether the DN was sent 1st or 2nd class mail You need to deduct 2 or 4 days from the 14 and you come up well short of being given the mandatory time to remedy the breach. If the date of the Default Notice is a Friday - then you would also deduct a further 2 days from the 14.

 

The date you advise of 14 January 2010 was in fact a Thursday, therefore you would still be able to deduct the Saturday and Sunday. Your default notice is invalid on time to remedy by

 

4 days if it were sent by 1st class mail and

6 days if it were sent by 2nd class mail

 

Then you have the diversion of the actual date not being given - it is a mandatory requirement that it is - therefore the notice is bad.

 

When you say that a DCA in now involved - which company is it and do you know if the debt has now been sold/assigned to this DCA or whether they are collecting on behalf of them !

 

If the debt is still owed, then I do not see that you will be able to get the default removed. If it is paid up then you might stand a chance.

 

I think also you should think seriously about putting together a timeline regarding the fraudulent use of your card.

 

Sadly, other than working out that your Default Notice is definitely bad, then I am unable to help.

 

Judgments awarded to the consumer in respect of bad default notices are..

 

http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html

 

http://www.bailii.org/ew/cases/EWCA/Civ/2011/1187.html

 

HTH