HSBC county court letter

[tomm0]

Hi all,

 

Looking for some advice here. I have had a HSBC current account for around 10 years.

 

In 1999 they sent me a credit card which I never requested or signed an agreement for (that I can recall).

 

I have written to them and requested a signed copy of the credit agreement and they got back to me last week.

 

What they have sent me is A credit agreement but not one that I have signed, in fact I can't see my signature on anything that they have sent.

 

Does this mean that they cannot inforce the debt?

 

Would also appreciate advice on what, if anything, I should do from here?

 

Many thanks,

 

Tom

[silverfox1961]

Hi,

The best thing you could do now is to post up your "agreement" on the forum(remove any personal details) and let the experts have a look.

They will be able to tell you what is what.

If you need help posting then one of us will give you advice.

 

 

fox

[tomm0]

Thanks Fox. I will post them up tomorrow.

 

Tom

[tomm0]

Right, I have from HSBC the following:

 

Copy of a leaflet entitled "credit card agreement terms", just has a cancellation form" with "sept 1999" handwritten on the top".

 

"Credit agreement resgulated by the consumer credit act 1974", doesn't have any detail on it, no name, address or signature (mine or the bank)

 

"Credit Card Agreement Terms" & "important changes to your credit card", both are quite large but not signed anywhere.

 

What should I scan and post as there is quite a lot?

 

Cheers,

 

Tom

[davey77]

Right, I have from HSBC the following:

 

Copy of a leaflet entitled "credit card agreement terms", just has a cancellation form" with "sept 1999" handwritten on the top".

 

"Credit agreement resgulated by the consumer credit act 1974", doesn't have any detail on it, no name, address or signature (mine or the bank)

For now, just scan this one if you can. No need to scan the T&Cs at the mo.

 

"Credit Card Agreement Terms" & "important changes to your credit card", both are quite large but not signed anywhere.

 

What should I scan and post as there is quite a lot?

 

Cheers,

 

Tom

 

Regards, D

[citizenB]

I can tell you now that this is much the same as my OH's document. Apparently all agreement/applications dating from the period you say yours is, if they were ever in existence, were returned to the branches for filing. It would appear that a lot of them were just shredded or mis filed.

 

When I first CCAd HSBC, they wrote back to me and told me that I should go to the branch and ask.. were they serious?.. Yep they were. To date, I have still received neither statements or agreement other than a blank.. this is what it would have been like document..

 

Nothing was forthcoming in a subsequent SAR either. So............

 

As far as I can recall, when we transferred our account from one HSBC branch to another, OH's credit card came along with the new cashpoint card.. no signature required no form to be completed !!

[tomm0]

Thanks guys, this is the CCA that have sent me:

 

http://www.gmk97.dial.pipex.com/HSBC/CCA.pdf

 

CitizenB, so what happened next with your OH?

 

Cheers

 

Tom

[davey77]

haha.. that's quite funny actually. That's the lamest excuse for a credit agreement i think i have ever seen.

 

No other docs that look like previous pages to that one? No signatures anywhere on anything? Then looks like HSBC are going to have problems with this one!

[tomm0]

haha.. that's quite funny actually. That's the lamest excuse for a credit agreement i think i have ever seen.

 

Why thank you very much

 

No other docs that look like previous pages to that one? No signatures anywhere on anything? Then looks like HSBC are going to have problems with this one!

 

Nope, nothing at all with a signature on it. There is scan of a cancellation leaflet which looks likes the one you use to cancel within 14 days or whatever. Nothing signed though.

[davey77]

Looks like just a generic form then. Ready to be filled out by a potential customer but certainly nothing that can be linked to you personally.

[citizenB]

Woohoo exactly the same ... I put in a complaint to the Financial Ombudsman who wrote back saying that only a court could make a decision.

 

This was about 3 months ago and I havent heard a dicky bird since from HSBC . There doesnt appear to be any recorded default regarding this on the CRA file either.

 

Initially I wrote back to HSBC saying....

 

 

 

Dear

 

Account Number:

Re: your letter dated (whenever) in response to my request under section 77-79 of the Consumer Credit Act 1974 dated 30th March

 

I note that you have replied to the above by sending a copy of a blank agreement form, terms and conditions which may or may not have accompanied the original form and your companies current Terms and conditions. I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

 

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

I hope this explains why your reply was unacceptable and I respectfully request that you provide a copy of the original agreement signed by myself that you hold on file and whilst I accept that you can omit the signature box for the purposes of compliance with my request, you will be aware that any challenge to the agreement in court would require the signed copy of the original agreement. If you still reject this, please provide clarification on the status of the Original Credit Agreement and confirm either that you hold the original signed agreement on file or a copy of it on microfiche or that you no longer hold the file.

 

I look forward to hearing from you within 14 days from the date of this letter.

 

Yours faithfully

 

 

There are other letters that can be sent, there is a debate going on in this thread... with several ideas on how to approach this.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

Personally, I am just leaving things lie.. see what their next move is:D

[davey77]

Excellent stuff from CB. If you still get nowhere, then here is the kind of reply that gets sent from someone (like me for instance) who has asked for the correct documentation for over 2 years and is getting cheesed off.

 

i suggest as a matter of urgency you consult with your legal dept, for if you seriously believe the unsigned generic blank form you have supplied is in any way complaint to my CCA request then you need re-training urgently.

 

I am quite familiar with the Consumer Credit act 1974 and what information i am entitled to, but for your reference the following applies in such circumstances:

 

s61 CCA - Signing of agreement:

(1) A regulated agreement is not properly executed unless—

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

 

s127(3) CCA:

(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).

 

Please note, I do NOT intend to to spend the next 6 months teaching HSBC consumer credit law or reiterating the regulations in my capacity as a consumer when a large financial organisation such as yourselves must be assumed to be fully aware of, and should clearly already possess, the necessary knowledge to understand it's ethical and legal obligations.

 

If you believe the documentation in question is somehow compliant, please state in detail why you have this belief and also why the above quoted Laws do not somehow apply to HSBC in this instance. Otherwise, please confirm this is all the documentation relating to an 'agreement' you hold in respect to the above Credit Card account within 14 days of receipt of this letter and state what action you will be taking to resolve this unsatisfactory situation otherwise i will be consulting with my Legal Representative on what appropriate action i may be forced to instigate.

[tomm0]

Great thanks guys, I shall send them another letter and see what happens.....

 

Reckon it's too late to transfer some more balance to the card?.....

[davey77]

Oh naughty comment lol Well, wouldn't it be nice.. a holiday, 40" sony TV and an Apple cinema display. All on a card that is (currently) unenforceable. hmm no, afraid not. That could easily be viewed as Fraud and not advisable or at the very least viewed upon very unfavourably by a Judge should the matter end up in Court and could prejudice, what is right now, a strong case.

 

I do say 'currently'. From what you have said in relation to how this card started life, how old it is and in what they have supplied (to date) it's ok as it stands in respect to enforcement potential but i never assume fully they couldn't come up with something. (Even if it's a doctored forgery attempt which has been known!) A ridiculous probability in either scenario i know and it's not something that should concern you unduly.

Just throwing the comment in to be sensible

[tomm0]

Heh, I wouldn't be able to even if I wanted to, they cancelled the card a few months ago as I kinda forgot to pay the bill, repeatedly.

 

Out of interest have HSBC, or any others, actually taken anyone to court for this kind of thing?

[citizenB]

There have been a few tom, one CAGer took a company to court where no documents were provided and the judge found in her favour. elizabeth, I think. Have a look in the legal succes forums.

 

That is a pretty impressive letter dave, I have hijacked it for future use.

[tomm0]

Cool. I will check that out.

 

Also, they are still telling me i have to pay them (£260), anything I can do about that?

[davey77]

yep, don't pay it I mean, if they are over the 14 days, haven't supplied you with a valid agreement then you are well within your rights to withhold payments until the matter is rectified to your satisfaction.

[tomm0]

Cool, I will take that advice

 

Was thinking of sending them the following letter, I KNOW they don't have a signed agreement. Any thoughts?

 

Dear Sir/Madam,

 

With reference to my previous letters, I wish to draw you attention to your company's lack of compliance with my legal request.

On 5th January I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8.

 

You have failed to comply with request, and as such the account entered default on 21st January. The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.

As you appear to be unaware , failure to comply with this request within 12 working days renders the alleged debt UNENFORCEABLE in law.

 

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute. The lack of a compliant credit agreement is a very clear dispute and as such the following applies:

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

You have 14 days from receiving the above date to contact me with your intentions to resolve this matter.

 

Yours Faithfully

Edited January 27, 2009 by tomm0
Correcting a few bits

[citizenB]

Hi tom, I was going to take the fight to them, only they issued a default to me today. You might want to have a look at posts 27 and 28 on my thread below. I have popped a letter on there you might be able to mess around with.

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/136551-hsbc-credit-card-cheeky-2.html#post1945279

[davey77]

Tomm, don't worry too much about getting the letter exactly perfect. Mine, yours, CBs.. a combination of all three. Just get the main points in and get it off to them.

You need to establish a paper trail, let them trip themselves up and find out how they are going to respond (as if we didn't already know.)

After which you can fine tune the letters depending on what they say or send you in regards to your request.

[tomm0]

Well it's been around 10 days aint I heard anything from them yet......I was supposed to make payment on 1st and havent even had a bill from them yet......

[davey77]

They are over the 12 + 2 days for supplying you with an agreement?

 

You have sent a dispute letter informing them you did not accept a blank form as your agreement

 

Time for a formal complaint to your Local Trading Standards.

[tomm0]

Hi all,

 

Received the following from HSBC the other week (been busy). It doesn't seem to say much different to the first letter, apart from a few more words. How should I proceed with this?

 

Cheers

 

Tom

 

[tomm0]

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