Marlin Court Action on HSBC CC, HSBC already said they hold no CCA - help

[ZENTRIX9]

Can anyone help?

 

I have some large credit card debts on about 5 cards.

 

I have sent a standard letter asking for a copy of the CCA and had replies back but some seem a bit dodgy.

 

I'm no expert sp

 

I joined the forum to see if there is any help here for me.

 

Do I tell them that I dont think they have complied with what I asked for and put the account in dispute and pay the £10 for the SAR?

 

Are they legally entitled to chase me for payments while the account is in dispute?

 

I can post documents if anyone wants to have a look.

 

Cheers

[harrassed senior]

It would be helpful to have a look at what they have sent. It might also be best if you keep this thread for one account, and then open new threads for each of the others. Make sure you remove all identifying details including barcodes etc. The next step may differ in each case, so we will advise seperately.

[Guest Cartaphilus]

Posting replies and what, if any, agreements they have posted to you is good. Then someone can look over them and see if they are enforceable or not.

 

Do I tell them that I dont think they have complied with what I asked for and put the account in dispute and pay the £10 for the

SAR

?

That will become clear if anything you have received doesn't comply with anything.

Are they legally entitled to chase me for payments while the

account is in dispute

?

Well, as you probably know already the debt still exists, it just depends on the aforementioned documents above being enforceable or not through a court. It's then a matter of choice to continue paying or not at a rate you can afford eg token payments.

 

Anyway, start with each debt in a seperate thread, so it's easier to deal with them and not as one thread and also list whichever DCAs you are currently with, so then it can be seen what or whom you are up against.

 

Lastly, if as you say some of them are 'dodgy' to quote you then you can also put them into dispute on that basis if none of them comply/are enforceable or missing anything but if you can post them up, then they can be looked at this can be very quickly established usually.

 

Edited - Oh, well, crossed posts as someone already posted that above whilst I was typing.

[ZENTRIX9]

All the info so far has been great.

 

I am now going to load some documents.

 

Let me know what you think.

 

Signed it in 2002

[Guest Cartaphilus]

Yes, I may have an answer for you ... albeit delayed but for the last few hours I have had really major trouble trying to log in and get the site to load so apologies for late but it addresses your last post above:

 

Right, here we go. Just been doing a little checking elsewhere ... It would seem from what I just read, and in fact I had noticed earlier but didn't post it though meant to that that is an application for credit or what I think is known as a 'pre application form' for a credit card. Still unsure how/where page 2 and the peculiar dollar thing fits in unless as I surmised before it's an updated sheet you've been sent, filling in the gaps where some of the prescribed terms are missing which is something many creditors are known to do, trying to enforce the agreement using more recent terms. All except you can't have known what those were at the time of signing.

 

Okay, long breath later ... There is no limit, no repayment terms, and some other things missing. And most particularly the missed payment information. So, what I think now is as I posted before, you've been sent that extra page along with your photocopied or fiched 'original' agreement in an effort to try and argue it's enforceable. Sorry it took me a while to get there but between having palpitations over worrying about your card number and a few other things I was going frantic about I think I have a better picture now. I just needed some 'blanks' to fill things in for me more, though I did note it was an application form and should have noticed that earlier. I did but I was too busy going frantic over your card number there so my apologies.

 

So, now someone with more knowledge than I possess should be able to tell you whether or not that is enforceable. On the basis of prescribed terms not being there it may be not but HSBC will try to argue that it is your agreement.

 

Hoping I am making sense right about now.

[ZENTRIX9]

Yes you are making sense. I read on one of the forums that 3 things should be on the contract.

1. repayments

2. rate of interest

3. credit limit

 

Mine hasnt any of the above.

I also read that this only applies to contracts taken out before 6/4/07

 

Thanks for your help. Who would you think would be best to check it over then?

[ZENTRIX9]

I have HSBC credit card debts and sent the CCA form. Got a copy back and the paperwork has no Prescribed terms on it at all!

After looking at Carey VS HSBC am I right in thinking that its not enforcable as stated in s127(3)

 

"the court shall not make an enforcement order under s65(1) if section 61(1) (a) (signing of agreements) was not complied with unless a document (wether or not in the prescribed form and complying with regulations under s60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor .. (wether or not in the prescribed manner)"

 

Accordingly, non-compliance with the relevant regulations is capable of being cured upon application by the court unless the doccument signed by the debtor did not contain the Prescribed Terms. In such a case the non-compliance cannot be cured and, in the words of Lord Hoffman in Dimond v Lovell [2002] 1 AC 384 at p397F, the agreement is "irredeemably unenforcable".

 

So I read it as HSBC cant enforce it?

If that is correct can I claim back PPI and all other charges?

Will they wipe the debt or will they make me wait 6 years?

 

I look forward to the replies

 

Scans of the document attached

 

http://s911.photobucket.com/albums/ac318/zentrix9/MR%20HSBC/

 

[cerberusalert]

Send them this;

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2009 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I refer to page 5 of the guidance which states;

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment.

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days

 

 

I trust this out lines the situation

Print name do not sign

[ZENTRIX9]

Looks like I may be able to wipe off £15,500 with these 2 cards and if I can get PPI and charges back that should be about another £5,000 paid back to me. WOOHOO!!!! Result!!!

Just another £22k to go and I will be debt free.

 

I have another card with Virgin thats about £10k but I bought a conservatory and never got it cos the company went into liquidation. I am trying to claim this back so could I say there is a dispute on the card account and legally stop payment for that amount until its sorted out. They have told me no verbally so are they just fobbing me off?

Incidently HSBC paid me the £10k back for the conservatory cos I used Virgin and HSBC to pay for the goods.

 

Any ideas anyone?

[B3rty]

Send them this;

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2009 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I refer to page 5 of the guidance which states;

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment.

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days

 

 

I trust this out lines the situation

Print name do not sign

 

Is this still relevant after the recent judgements showing that they can still chase even when they can't enforce?

[cerberusalert]

Yes because it underlines the fact that they can't enforce. Even when they continue to pursue they've got to be careful otherwise it comes under the Harassment laws.

[B3rty]

Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

[ZENTRIX9]

I sent off the letter and got a reply VERY quickly. Click on the links below to view the letter. Whats the next step? Any help will be greatly appreciated. Should I now send them a SAR to see if they have the original? and also start my claim for PPI.

 

Thanks

 

http://i911.photobucket.com/albums/ac318/zentrix9/MR%20HSBC/disputeletterreply1of2.jpg

http://i911.photobucket.com/albums/ac318/zentrix9/MR%20HSBC/disputeletterreply2of2.jpg

[cerberusalert]

They are partly correct in what they say in as much as they can supply a reconstituted agreement, however having said that if they wish to pursue this through a court they would have to produce the original. If they had one why wouldn't they send it instead of wasting everyone's time?

 

Ignore them for now.

[rebel11]

The other thing that gets over looked is if the Agreement has been 'varied' since the account was opened, i.e. interest rate has been increased then they have to supply you with the Original Agreement, plus Terms and Conditions for each variation. Until they do that the agreement is unenforceable. Creditors like to cherry pick judgements.

 

Carey v Hsbc (2009)

[ZENTRIX9]

I am in the process of submitting a claim for misold PPI. I was employed at the time and told them that I was in a family business, classed as staff and would get paid if I was ill so I would not require the PPI, however it seems that when I was asked to sign where the crosses were I signed for the PPI.

I have also found that the original credit card application form has no prescribed terms on it and HSBC have also admitted they cant find the original document. So they cant enforce the debt. Hence the start of the PPI claim.

 

I have gone through the card statements and put all the amounts down on an excell sheet.

Reading the forums I am a little confused. I know you can claim 8% on each monthly statement, can this be acummulative monthy?

 

The first amount I paid on the statement is a payment of £33.46 for PPI so x8%= £2.68 nterest, added together is £36.14

Do I now add the next payment of £27.04 to the £36.14 and multiply by 8% and carry on doing this over the time of my statements? or do I take the amount of PPI I paid in total which was £2204.82 and just add 8% to it?

 

Looking at the FOS it says that 'the customer should be placed back into such a financial position 'as if the PPI policy never existed on the agreement in the first place', this is to include [where necessary] any interest that has been charged on the PPI amounts'. It also states 'the customer is also entitled to 8% statutory interest in addition to this figure, in restitution of being deprived of this monies'

 

Any pinters would be good as I want to make sure that what I send doesnt look stupid.

 

Cheers

 

[silverfox1961]

HI

I must say first off that PPI is not my strongest skill.

 

The 8% you are referring to is statutory interest and it's an annual rate, not a monthly one. 8% monthly=96% apr

 

I would be claiming contactual interest (the interest they were charging you)

They've had your money. Make em pay for the "loan"

[ZENTRIX9]

http://i911.photobucket.com/albums/ac318/zentrix9/HSBC%20PPI/PPIpayments.jpg

Heres a direct link so you can read it properly

[dx100uk]

cant do both PPI & charges on same spreadsheet

separate the two.

 

as its a credit card [for both unlawful charges & PPI]

charge them int at their purchase or cash rate for the month it was levied to today.

 

use:

http://www.egalegal.com/compoundWindow.html

 

i would not at this stage inc 8% stat until you progress to court.

 

dx

[ZENTRIX9]

Ok, the charges are not included in the calculations. They are only there just for my benefit.

So if they were charging me monthly at 1.456% do the same to them?

[dx100uk]

yes

 

the idea of a reclaim is you should be put back into a situation whereby you were never charged it.

 

dx

[ZENTRIX9]

Ok I understand that. So £0.79 every £100 was what they were charging. Do I calculate this accumulative monthly?

[saintly_1]

Thread moved to the PPI forum

[dx100uk]

accumulative?

 

compounded monthly yes

 

rests=12

[ZENTRIX9]

Compounded yes, so I make it that they owe me at least £3757.11 for the PPI, £4851.26 if I include the 8%. Also reclaim back the late payment charges that are £252.85 or £298.81 with 8%

 

I was also refunded about 6 months ago for a conservatory that I never got (approx £9000), I was told that I could only claim back the interest I had paid from the time I reported it. I didnt report it to them because I waited to see if there was any money left with the liquidators and didnt know i could claim it back through my card company. Do you think they have fobbed me off? could I claim back to the day I paid for the conservatory? I would really like to know as it would help a lot.