Hi advice please - loan agreement

[hsbcfiddled]

Hi Everyone,

 

Just totalled up my charges and I was amazed to find out that it comes to just over £4000 without interest (£790 to add).

Most of it (£3900) was before February 2004 when the Bank (HSBC) kindly put me on a 'Managed Loan' that I have hated paying but I must admit it has kept me free from charges since May 2004.

The Managed Loan was for £16600 and I have paid £10600 (at £287 per month) off it and just last month I got the HSBC to freeze the interest which still leaves me £14000 to pay (thanks to their extortionate rates)

 

My question is .....of the £16600 at least £4000 was due to their charges. So can I get HSBC to accept that the £10600 that I have paid to them out of a debt which should have been £12600 leaves me a balance of £2000 with interest over the accepted period because they have owed me £4000 over the same period and that maybe I could have negotiated a better deal because my debt wasnt as big as they had made it be?

(is this the longest question ever):-?

[gizmo111]

When you reclaim the charges - you need to reclaim the interest on the loan that was proprtionate to the charges.

[hsbcfiddled]

Well i cca'd HSBC and they sent me a loan agreement with my signature on it but they had;

 

1. put a line through terms and conditions.

 

and

2. written by hand different monthly/weekly payments to what was printed on the agreement.

 

 

I wrote to them to tell them that was not the agreement that I had signed and that I nor they had not initialled any alterations to the agreement- that is if an agreement can have alterations on it .

 

However I have just found a letter to me from HSBC -dated a day later than the copy of the agreement they had sent me- ASKING ME TO 'SIGN' THE MANAGED LOAN AGREEMENT THAT IS ENCLOSED:shock:.

 

So if that is the agreement- why are they writing to me a day later enclosing an agreement for me to sign.

 

Oh the 42+ plus days have expired now.

Edited June 25, 2010 by hsbcfiddled
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[hsbcfiddled]

ALMOST 3 YEARS AFTER PREVIOUS POST

 

 

Well just got home from a 10 day trip to France to find a letter from the local County Court and that the bank is pursuing us (me and OH) for a managed loan that hasn't had a penny paid on it since June 2007.

 

After my successful business claim I looked at using a solicitor to claim back all the payments that had been made only for the solicitor to say 'Yes we can do that it will cost about £18-20K'. So I left it where it was.

 

Now! as the Bank are taking me to court can I get legal aid and counter claim?

Edited June 25, 2010 by hsbcfiddled
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[maroondevo52]

Hi, Welcome back !!!

 

I'll move this thread to the HSBC Forum.

 

Regards.

 

Scott.

[maroondevo52]

Thread moved to Legal Issues.

[hsbcfiddled]

Thanks for moving the thread.

 

Just to add;

 

1. The bank states in its POC that; The loan agreement was improperly executed in that, contrary to the requirements of s.61(1)(a) of the CCA 1974 and/or Reg. 6(3) of CCA 1983, the loan agreement was not signed "in the prescribed manner" because the dates of the defendants signatures were not inserted by the defendants but were instead inserted by the claimant after the event.

 

2.The claimant is entitled to and claims an order of the court declaring that it is entitled to enforce the loan agreements against the defendants, pursuant to s. 65(1) of the CCA 1974. The improper execution was caused by the defendants' own failure to insert the date of their signature into the loan agreement. The defendants nevertheless signed the loan agreement.

 

They go on to state what payments were made....which is accurate.

However the payments do not match what was written into the loan agreement.

Edited June 8, 2010 by hsbcfiddled
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[hsbcfiddled]

Got less than 28 days to write up a POC.

 

Am I right in thinking that s.127 of the CCA1974 is a complete defence against an attempt by the bank to get a court order to recommence an agreement if not all the conditions of the signing of the agreement have been met? Indeed the bank admit that the agreement is improperly executed.

Providing the agreement is from before 2006?

[maroondevo52]

Is this the same Loan you mentioned in 2007 ?

[hsbcfiddled]

Yes

[hsbcfiddled]

Anyone..Please

[hsbcfiddled]

OMG this legal issues forum is so busy that your thread disappears within a few hours.

[Castlebest]

Hiya Les

Just got back from 10 days in France only to find that HSBC are seeking a court order and that I have until the 2nd July to respond.

 

How are they seeking a court order, have they issued a writ or is this an ongoing claim thats already in court?

 

Either way you need to confirm to the court you will be defending on the grounds that they dont have... and in fact in your case seem to have fabricated terms and conditions to suit themselves.

 

pete

[hsbcfiddled]

Hi Pete,

Thanks for the reply. Its in the first stage - I have acknowledged receipt.

 

Basically they are seeking an order to claim the unpaid balance of the loan and are blaming me for not dating the agreement, as the reason that the agreement is presently unenforceable.

 

This is in itself is a joke because they only had to send it back to get it dated or call me into date it. Furthermore, if it wasnt done properly by me then surely they shouldnt have granted the loan. Who is in control of the loan? The bank or me?

 

Also I have stated and written that its not my signature on the agreement.

They have included another document with my signature on in the POC and they are clearly not the same.

 

They are also stating that the payment regime was set up to help me- but they have not included in the court papers the loan agreement that they sent me when I cca them. The agreement they sent me (the first time) had alterations all over it. They later sent the unaltered version, which they have included in the POC.

Edited June 10, 2010 by hsbcfiddled
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[hsbcfiddled]

Hi Pete,

Thanks for the reply. Its in the first stage - I have acknowledged receipt.

 

Basically they are seeking an order to claim the unpaid balance of the loan and are blaming me for not dating the agreement, as the reason that the agreement is presently unenforceable.

 

This is in itself is a joke because they only had to send it back to get it dated or call me into date it. Furthermore, if it wasnt done properly by me then surely they shouldnt have granted the loan. Who is in control of the loan? The bank or me?

 

Also I have stated and written that its not my signature on the agreement.

They have included another document with my signature on in the POC and they are clearly not the same.

 

They are also stating that the payment regime was set up to help me- but they have not included in the court papers the loan agreement that they sent me when I cca them. The agreement they sent me (the first time) had alterations all over it. They later sent the unaltered version, which they have included in the POC.

 

They are seeking an "Order of Enforcement". As stated above, but citing my failure to 'date the agreement' as to the reason that the agreement is unexecuted.

However, searching through the mountains of documentation between us I have found a letter from them asking us to 'sign the agreement'.

Not sign and date!

Just sign

Therefore we have carried out the banks instructions to the letter.

[hsbcfiddled]

Is there any legislation within the CCA1974 to get the return of payments if an agreement is unenforceable?

[hsbcfiddled]

They are seeking an "Order of Enforcement". As stated above, but citing my failure to 'date the agreement' as to the reason that the agreement is unexecuted.

However, searching through the mountains of documentation between us I have found a letter from them asking us to 'sign the agreement'.

Not sign and date!

Just sign

Therefore we have carried out the banks instructions to the letter.

 

Anyone got any thoughts on this I have to submit to court my reasons that I have against their POC by Friday July 2nd??????

[bustthematrix]

Hi Hsbcfiddled

Surprised others have not been here to assist you?

Where are you in the process? Have you SARN and CCA'd them? What about CPR asking for originals?

 

You cannot file a full Defence without proper reliable original documents! Your statement about conflicting signatures is very disturbing! Where's the proof that you even signed anything at all?

What's the claim amount?

 

I'll try and get others to look in for you as well.

[gh2008]

btm asked me to look in

 

right,

 

I would get an S.77 request off ASAP - more for interest really, to see exactly what is returned. A response to this request is binding on them.

 

I presume the paperwork you have was from an SAR?

 

What exactly are they claiming? Just an enforcement order or are they claiming the balance?

 

If the balance they need to have served a valid DN before they can demand 'sums not yet due'

 

Also get a CPR31.14 request off to them ASAP giving them 7 days to respond.

 

You need the info before you can enter a defence.

 

On the positive they have submitted a very clear POC which is good.

 

IMHO i would not counter claim (it seriously complicates matters for one thing), but see this off and then claim against them as if this claim goes your way it could end up far better for you.

[seriously fed up]

BTM has been busy - more time watching the footie my friend!

First of all the advice given by gh2008 is sound and I think you should follow it. I am in (lets say) "another jurisdiction" so English process is a wee bit of a mystery to me. But I hope I can be helpful.

Some things to let me get things clear in my head (not sure if the whole of your previous thread was moved or just some of it as it seems to start in rather a strange way - like the middle of a conversation)

 

1. you seem to have got papers from them for original loan (the one you signed, but with pencil marks through the T&Cs). Have you got these for the "managed loan"? If not then you need to get them to do that in order to clarify the detail of the agreement they are standing on
   
2. what is really doing my head in is that unless i have read this totally wrongly is that they are claiming that the agreement is improperly executed, but seem to be relying on it. There is a well worn path between s61 and s127 (3) which would tie the hands of the court. EXCEPT s127 (3) was repealed in 2007. I think it was April -does anyone know the exact date? And when did you sign the managed loan agreement hsbc? What we need to hope for is that you signed up before the repeal, in which case they havent so much shot themselves in the foot as blown their heads off as the court will be impotent to act.
   
3. however, lets take the pessemistic view that s127 (3) was repealed, in that the case what we are left with is this
   

the court shall dismiss the application if, but (subject to subsections (3) and (4)) only if, it considers it just to do so having regard to—

(i) prejudice caused to any person by the contravention in question, and

the degree of culpability for it; and

(ii) the powers conferred on the court by subsection (2) and sections 135

and 136.

Really its the first of these - were you subject to prejudice and whose fault was it - that you would need to focus on. They certainly have blame in that they allowed a loan to run without you signing up properly - they have admitted as much. Also they seem confused about what is your signature and what is not, or what is the agrreement and what is not.

The problem is though that "lending took place" - I think you accept that the current balance they quote is about right. So,unless you can add to these the DANGER is (and I wouldnt put it stronger than that) is that the court may take the view that the infringements are purely technical - de minimis - and that the bank should still be able to get its money if other terms and conditions of the agreement have been followed. Unless of course you can add to their list of crimes. For instance as gh inquires, is there a valid DN.

But tbh, its obvious your best bet is to show that this agreement was entered into before s127 (3) was repealed and therefore the court has no powers so bye bye HSBC. So when was it?

Another way of looking at this is what was the arrangement between you and HSBC? One way is to say there were two agreements - the original and the managed loan. BUT, another way of looking at it is to argue that they are consecutive and that the date the managed loan (the second one) is consecutive to and and continuation of the original one, which MUST take you back before 2006 never mind 2007? In other words are they separate agreements, or are they consecutive? If the latter you could argue as above.

Edited June 25, 2010 by seriously fed up

[hsbcfiddled]

btm asked me to look in

 

right,

 

I would get an S.77 request off ASAP - more for interest really, to see exactly what is returned. A response to this request is binding on them.

 

I presume the paperwork you have was from an SAR?

 

What exactly are they claiming? Just an enforcement order or are they claiming the balance?

 

If the balance they need to have served a valid DN before they can demand 'sums not yet due'

 

Also get a CPR31.14 request off to them ASAP giving them 7 days to respond.

 

You need the info before you can enter a defence.

 

On the positive they have submitted a very clear POC which is good.

 

IMHO i would not counter claim (it seriously complicates matters for one thing), but see this off and then claim against them as if this claim goes your way it could end up far better for you.

 

 

Thank you both for the replies;

Yes I have CCA and SAR them.

the story so far;

 

Received 1st copy of agreement July 2007 - This had written on it 'payments to be 4 weekly' and different amounts than what was on the printed agreement. When I complained that these figures were not part of the agreement they sent a second copy one month later.

 

The second copy was basically the 1st copy without anything written over it regarding payment amendments. I complained that this second copy did not bear any resembalance to the 30 plus payments taken from my account.

 

Two months later me and MOH had a 'face to face' at the local branch with Bank Manager (not Manager at time of loan agreement)and Area Manager we argued about charges on Business account and current account and they admitted to errors on a previous loan etc.

I pointed out that the agreement had NOT been dated by us and therefore we would not have known when are rights to cancel started or ended, "oh! and by the way thats not my signature"!

My OH asked "Shouldn't the signatures have been verified before the agreement was passed" "No comment" was the reply we got.

I also stated that the majority of the managed loan was made up of charges and put that in my correspondence with DG Solicitors nothing was likely to be challenged either by Me or DG whilst the OFT case was ongoing.

 

Now I have received court papers stating that they are seeking a Court Order to make the unexecuted agreement enforceable.

 

In their POC they have included the second copy of the agreement and state that the payment terms were an 'act of indulgence towards us, making the payments less but more frequent".

They also state 'the agreement was unexecuted BECAUSE me and MOH had not dated our signatures'. ..........So its our fault that they have an unexecuted agreement.

[gh2008]

So, they are *not* claiming any money.

 

What date was the agreement signed?

 

Importantly pre or post 6th April 2007

Edited June 25, 2010 by gh2008
added last line

[hsbcfiddled]

BTM has been busy - more time watching the footie my friend!

First of all the advice given by gh2008 is sound and I think you should follow it. I am in (lets say) "another jurisdiction" so English process is a wee bit of a mystery to me. But I hope I can be helpful.

Some things to let me get things clear in my head (not sure if the whole of your previous thread was moved or just some of it as it seems to start in rather a strange way - like the middle of a conversation)

 

1. you seem to have got papers from them for original loan (the one you signed, but with pencil marks through the T&Cs). Have you got these for the "managed loan"? If not then you need to get them to do that in order to clarify the detail of the agreement they are standing on
   
2. what is really doing my head in is that unless i have read this totally wrongly is that they are claiming that the agreement is improperly executed, but seem to be relying on it. There is a well worn path between s61 and s127 (3) which would tie the hands of the court. EXCEPT s127 (3) was repealed in 2007. I think it was April -does anyone know the exact date? And when did you sign the managed loan agreement hsbc? What we need to hope for is that you signed up before the repeal, in which case they havent so much shot themselves in the foot as blown their heads off as the court will be impotent to act.
   
3. however, lets take the pessemistic view that s127 (3) was repealed, in that the case what we are left with is this
   

the court shall dismiss the application if, but (subject to subsections (3) and (4)) only if, it considers it just to do so having regard to—

(i) prejudice caused to any person by the contravention in question, and

the degree of culpability for it; and

(ii) the powers conferred on the court by subsection (2) and sections 135

and 136.

Really its the first of these - were you subject to prejudice and whose fault was it - that you would need to focus on. They certainly have blame in that they allowed a loan to run without you signing up properly - they have admitted as much. Also they seem confused about what is your signature and what is not, or what is the agrreement and what is not.

The problem is though that "lending took place" - I think you accept that the current balance they quote is about right. So,unless you can add to these the DANGER is (and I wouldnt put it stronger than that) is that the court may take the view that the infringements are purely technical - de minimis - and that the bank should still be able to get its money if other terms and conditions of the agreement have been followed. Unless of course you can add to their list of crimes. For instance as gh inquires, is there a valid DN.

But tbh, its obvious your best bet is to show that this agreement was entered into before s127 (3) was repealed and therefore the court has no powers so bye bye HSBC. So when was it?

Another way of looking at this is what was the arrangement between you and HSBC? One way is to say there were two agreements - the original and the managed loan. BUT, another way of looking at it is to argue that they are consecutive and that the date the managed loan (the second one) is consecutive to and and continuation of the original one, which MUST take you back before 2006 never mind 2007? In other words are they separate agreements, or are they consecutive? If the latter you could argue as above.

 

Thanks for the reply;

All loans from a failed business which was solely in my name.

Carried over into current account thats in both our names.

Business ended when I took up employment in 2001.

loan was basically all charges and overdrafts consolidated.

Prior to the managed Loan which was commenced in feb 2004 there was a previous consilidation loan in September 2003 this was paid off by way of the commencement of the Managed loan in Feb 2004.

I had almost £1700 back on the business account post 6 years and cannot discuss pre six years on same account.

[hsbcfiddled]

So, they are *not* claiming any money.

 

What date was the agreement signed?

 

Importantly pre or post 6th April 2007

 

 

Yes they are claiming balance of payments and interest.

Agreement Feb 2004.

 

I also have a letter from HSBC asking us 'to sign' the agreement. Not sign and date!

Edited June 25, 2010 by hsbcfiddled
Add text

[gh2008]

Ok, so they are seeking an enforcement order under 127(1) to however they are prevented from doing so because of s127(3)

 

Clearly the Prescribed Terms are wrong and there maybe doubt, it seems, whether there is, in fact, a signed agreement at all.