HSBC 1997 Credit card - Is it possible to get a default removed

[Falcokeith]

I am not out to avoid the debt, only the excessive amount of interest charged

[fletch70]

So if you want to pay the debt off at an affordable rate you need to communicate with the bank and come to some sort of arrangement. I am not quite sure why you would bother with a CCA request .

 

BTW avoid is such an emotive word, if you stopped paying you would merely be using the law against the banks as they would only be too happy to use it against you.

 

Of course another possible option is to stop paying for a while then either save up and offer a full and final or then make reduced offers

[Ihatebanksandbankshateme]

So if you want to pay the debt off at an affordable rate you need to communicate with the bank and come to some sort of arrangement. I am not quite sure why you would bother with a CCA request .

 

BTW avoid is such an emotive word, if you stopped paying you would merely be using the law against the banks as they would only be too happy to use it against you.

 

Of course another possible option is to stop paying for a while then either save up and offer a full and final or then make reduced offers

 

 

No, you would be placing yourself in difficulty if you cease payments and the creditor reconstitutes the agreement, because you then are in breach of contract whereas the creditor has remedied his breach, see Kotecha v Phoenix, it is clear s78 can be remedied.

 

If you wish to raise a challenge to unenforceability under s61(1)(a) then you should read HFO v Patel which is an appeal court case (Unreported) the appeal court ruled a debtor must make a positiive assertion that there is no signed agreement or that the agreement is improperly executed.

 

Of course, if its interest they want to charge, if there is a breach of contract, ie t he debtor stops paying, then they must serve notice of sums in arrears in the prescribed form before they can become entitled to levy interest on the account. Of course, these breaches are remediable too.

 

as far as full and final, dont get caught by the Pinnels / Foakes v Beer case, as payment of a smaller sum in satisfaction of a larger sum is not good consideration to discharge a contract. However, if there is accord and satisfaction, or even better a payment offered by a third party in settlement, and it is done so on the basis of cashing the cheque is acceptance of the offer, and if rejected the cheque should be returned, then you may have a strong binding agreement. See Bracken v Billingshurst for the leading authority on this point.

[theoldrouge]

phoenix v kotecha? didnt remedy it too well did they?

[fletch70]

I suppose the question that no one has asked is this

Is the account up to date or has it at this point already been defaulted

 

 

I do not see anyone saying that S78 can not be remedied although often when the try to do that they get it wrong by sending only the missing bits whereas the law states that they must be all sent together

 

 

 

I am still waiting for the judgement you refer to in post 23

 

Falco

I am not quite sure what you mean by the excessive amount of interest

Edited November 24, 2013 by fletch70

[Ihatebanksandbankshateme]

phoenix v kotecha? didnt remedy it too well did they?

They did actually, it was remitted to the County Court, went before a Recorder, and was settled.

 

They did remedy the s78 breach however, although the victory was a phyric victory in real terms, they spent some 30k to recover 20k

[Ihatebanksandbankshateme]

I suppose the question that no one has asked is this

Is the account up to date or has it at this point already been defaulted

 

 

I do not see anyone saying that S78 can not be remedied although often when the try to do that they get it wrong by sending only the missing bits whereas the law states that they must be all sent together

 

 

 

I am still waiting for the judgement you refer to in post 23

 

Falco

I am not quite sure what you mean by the excessive amount of interest

 

Arrow Global Guernsey Limited v Frost

Bristol County Court

Recorder Simon Monty QC

[Peterbard]

Interesting to hear about Kotecha, it was widely trumpeted as a victory for the section 78 argument, even though the judge said that the creditor could just refer it back to the County Court, but I did not know that they actually had.

 

The issue of enforceabilit in the absence of an agreement has been the elephant in the room for some time, ever since it was mentioned in Carey that the act only says that an agreement" was signed" and that there was no stipulation that one should be produced.

 

I wasn't aware of any cases that had been won on this , although I did know of a case where the judgment was pending, is this the one? Has it just been handed down?

Edited November 24, 2013 by Dodgeball

[fletch70]

I would be really interested to see a copy of this one, do you have a link?

[Ihatebanksandbankshateme]

I would be really interested to see a copy of this one, do you have a link?

I have a paper copy, but i have been asked not to distribute it, because it is simply a county court decision. However while stare decisis doesnt operate, there is a view that County Court rulings are persuasive and it is likely that a Judge would follow the ruling of the Recorder.

 

I am trying to get this posted on BAILII, and will let you know when it is up there

[fletch70]

I am sure you will forgive me when I say that until I see the details I will not come to any conclusions.

 

I also have issues with court records not been available at whatever level (unless there is a good reason to keep them private)

 

Can you at least say when the agreement dates from

 

As an aside, in the Santander v Mayhew case the judge stated that it was irrelevant that the sum on the DN put the creditor at a disadvantage however since then another court has ruled that when this is the case it does not invalidate the DN. ( Yes I know Ms Mayhew)

[Ihatebanksandbankshateme]

I am sure you will forgive me when I say that until I see the details I will not come to any conclusions.

 

I also have issues with court records not been available at whatever level (unless there is a good reason to keep them private)

 

Can you at least say when the agreement dates from

 

As an aside, in the Santander v Mayhew case the judge stated that it was irrelevant that the sum on the DN put the creditor at a disadvantage however since then another court has ruled that when this is the case it does not invalidate the DN. ( Yes I know Ms Mayhew)

Indeed, and that would be HFC Bank v Moody.

 

There are about 6 other judgments which go the other way on these things, sadly the banks dont seem keen on taking these cases up to the Court of Appeal

[fletch70]

It would appear that you are pro bank and anti consumer, would that e a fair assessment?

[Ihatebanksandbankshateme]

It would appear that you are pro bank and anti consumer, would that e a fair assessment?

No it would not be a fair assessment at all. Poles apart from when i stand.

 

I just happen to keep my finger on the pulse more than others in the world of consumer credit litigation thats all. As for my identity that shall remain a matter for me and only me.

 

Of course, if by correctly pointing out the law i am deemed pro bank, then perhaps i should become pro consumer and tell you to follow the incorrect line of attack, then comfort you when you lose? id prefer not to but if thats how we want to play things then im happy to.

 

I can assure you my credentials stand up to scrutiny.

[fletch70]

The vast majority of people in here looking for debt help are already in trouble and not looking to avoid paying debts but are not in a position to repay.

I will admit that maybe more details should be asked for prior to giving opinions.

You claim to have good credentials but without proof why should anyone trust you more than me more than andyorch.

You make a reference to county court judgements being persuasive but then give examples of just the opposite

You mentioned case law about making a positive assertion. Indeed you need to be able to say why the agreement is incorrectly executed OR make the assertion that you didn't sign any such agreement.

 

As for S77-79 i agree absolutely that in most cases this can be put right but not in every case. Does every deed of assignment have open ended rights to return some or all of the account to the OC.

 

In this particular case the bank has written saying ut can nite provide the S78 request and if they were then to fudge a copy and try to enforce that letter would be pretty persuasive to a judge that a signed compliant agreement had not existed. Of course every case is different

[BRIGADIER2JCS]

As to the non publication of lower court cases, to publish and/or cause 'every day' cases in the CCs including 'chambers' hearings would not be practical, also I believe that the public at large would not want this scenario it's enough that a judgement becomes a public record in all cases.

[Peterbard]

The problem with this is that many lower court cases are available by dedicated providers to the legal profession.

 

Whilst these cases do not in themselves create precedent as said previously they can be persuasive and influence any decision. This creates an uneven playing field for the LIP

[Old Cogger]

And many a so called Deputy Judge in chambers state " That legislation does not count" = which says it all

[BRIGADIER2JCS]

A judges duty is to interpret 'Law'

 

The Civil Justice Council document, 'Access to Justice for LIPs'

 

http://www.judiary.gov.uk

[Old Cogger]

A judges duty is to interpret 'Law'

 

The Civil Justice Council document, 'Access to Justice for LIPs'

 

http://www.judiary.gov.uk

 

 

Link not working - maybe DJs use that link?

[BRIGADIER2JCS]

Emm there's a large tail to that link works for me. Browse Litigants in Person - Civil Justice Council.

[fletch70]

To be honest I can not see why it would be impracticable to publish all county court cases . After all how are they recorded, Easy to get online Of course I am not suggesting that cases involving families, minors or vulnerable people are published. It does indeed put a LIP at a disadvantage

[DonkeyB]

In county court cases, the transcript is usually funded by the winning side, for obvious reasons (eg. HFO v Patel), whose decision alone it would be to publish. They can only be ‘persuasive’ in another court and, of course, such judgments are not binding.

[Falcokeith]

I have a debt for an HSBC credit card that dates back to 1997

 

This account was defaulted in 2013

 

Having contacted them I now have in writing confirmation that they do not hold a CCA for this

 

Is it possible to get this default removed as with no CCA they therefore have no permission from me to record

or pass on any data regarding me or my account

 

All information gratefully received

[citizenB]

Indeed, a lot of the HSBC CC accounts from that date did not have an agreement sent. Credit cards were sent out with Debit cards and I would think that might be considered unsolicited.

 

If you can say with absolute certainty that you never signed an agreement, then it might be worth asking them to remove the default..

 

However, if you have any doubts at all, then you risk them finding something with your signature on.

 

You say it was defaulted in 2013 - when did you make the last payment to the account ?