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

[Ihatebanksandbankshateme]

Hi all,

 

I have had a reply from HSBC stating they cannot comply with my CCA request.

They confirm they know they cannot take action in court to seek recovery of debt.

 

Are they still able to charge interest on this account?

 

Any help would, as always, be appreciated

 

Mcguffick v RBS confirmed that where there is a breach of s78 the creditors rights are not extinguished but are merely unenforceable.

 

Without the ability to comply with s78 the creditor cannot enforce therefore per Carey v HSBC Bank he cannot obtain a judgment he cannot make the debtor bankrupt. They can of course add interest, charges subject to compliance with s86C & E CCA and they can report your activity to the credit reference agency.

 

I hope this assists.

[Ihatebanksandbankshateme]

Does it really matter if they continue to add interest. They have said they can not fulfil your request and as such they can not enforce. Stop paying and wait 6 years, then it will be statute barred. Before that they will probably sell it on at which point you just send the new owner a copy of the letter saying they can not enforce

 

Not sure this is an ideal advice.

 

 

Firstly only a Court can declare an agreement unenforceable.

Secondly if you stop paying and they sell it to a third party,

under the terms of the assignment will be an indemnity clause which the bank is unlikely to want triggered,

so it is likely that while they cannot fulfil your request for the "Original agreement"

they may reconstitute and discharge the burden, many banks seem to have adopted this approach.

 

 

I have seen a Judgment recently that there was no signed agreement,

and yet the creditor still got judgment as the findings of fact meant that the lack of agreeement didnt matter,

as the Judge said he found as fact that the Debtor "DID" sign an agreement,

that the agreement "DID" comply with the requirements of s60 & 61 CCA 74, and

he based his findings on the creditors records and procedures and

the fact the Debtor was a truly unreliable witness.

 

 

Stopping paying is something which must be considered very carefully against all the facts

[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.

[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

[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

[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

[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.