Don Leocornay Vs HSBC

[don leocornay]

Spoke to the National Debt line. They advised that the next stage is court. It'd be worth getting a decision from the Ombudsman but ultimately they'd have to take me to court to enforce the debt, and I can defend it on the basis that it's unenforceable.

 

I've read on other threads that they've been known to forge documents. I'm probably going to sign a sworn statement saying that I've never received documentation at the time and have never signed anything.

 

Any suggestions?

[rhsymonds]

Well Don, id follow the debtline advice to the letter, if anyone knows what to do, they do.

 

While searching for statements the other night, i located my copy of my agreement, with a letter asking me to sign and return it if i agree to the terms.

 

I still have the unsigned document !!!! I guess i never got round to signing it !!! What do you think ?? Should i keep it or shred it ?

 

Its from 2003, and the letter says 'your managed loan has been arranged, and all we need is your signature on these forms'. None of the forms have been signed though ???

[don leocornay]

hi rh,

 

i couldn't advise you on that. the only comment i could make is that just because they've sent it doesn't mean you received it, the only proof would be sending the item via recorded delivey and they tend not to do this. i don't know who the burden of proof lies with in this case, should it go to court. I need to know that for my own case as well.

 

if anyone knows what the best course of action is in this case then please feel free to post it here.

 

As for me, on to the Ombudsman!

[don leocornay]

not very good news from the Ombudsman.

 

They've advised me that the Managed Loan isn't a loan but a repayment agreement, which isn't covered by the CCA. That they can set whatever APR they like and don't have to send written confirmation to sign.

 

The only complaint I could lodge would be against the APR they've charged.

 

It's a blow but there must be something else that can be done.

[gooner88]

I'm no expert but that "advice" looks distinctly dodgy. If you have a copy of the pre-contract information it should have as its title "Fixed Sum Loan Agreement Regulated by the Consumer Credit Act 1974" It is then described as a loan throughout.

[hsbcfiddled]

Well if it is a repayment plan/schedule-

 

Why arent the banks telling us so when we CCA them?

Why do they initially call it a Consolidation LOAN? (in some cases)

Why do they try to get us to sign a LOAN agreemnet form then?

 

Sorry I dont buy into that one.

Thats three reasons why its not.

I am sure our better advised CAGGERS will add more.

[hsbcfiddled]

OK! This is what I have in my possession.

 

A4 sized Document

 

 

HSBC

CREDIT AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974

CUSTOMER COPY

 

Mr hsbcfiddled

Ivebeenfiddled town

Shaftedshire

HSBC Bank Plc

Gonnastitchemup Town

PenaltyChargeshire

 

 

PRINCIPAL LOAN

Amount of loan £xxxxxxx

Interest 13.9% per annum

(being 9.9% above banks base rate)

Arrangement fee £0.00

 

APR 14.8%

 

 

No account has been taken in the calculation

of this APR of any variation that may occur as

a result of any change in the bank’s

base rate which may be varied by us

from time to time at our discretion

 

Repayment

Initial repayment £xxx

Date of first repayment: xx/xx/200X

XX further monthly repayments of £xxx

on the same day in each month after that

 

______________________________________

STANDING ORDER

 

We authorise you to pay from current

account xxxxxxxxxxxxx

- repayments in accordance with the

repayment schedule set out above or such

other amounts as may be payable under

term 4 overleaf

 

 

 

This agreement is subject to the terms set out on the following pages

 

This is a copy of the agreement for you to keep.

It includes a notice about your cancellation rights which you should read

 

 

 

For HSBC Bank plc

This is a credit agreement regulated by the

Consumer Credit Act 1974

Sign it only if you want to be legally bound by its terms.

Signature of Customers

 

Hsbcfiddled

 

 

Dates of signatures

 

 

BANK USE ONLY

LOAN ACCOUNT NO :- XXXXXXXXXXXXX

 

 

I have reproduced it word for word in almost exactly its position and format.

 

Consumer Credit Act 1974 or Repayment plan you decide.

[hsbcfiddled]

SHEET 3

 

Is as follows.

 

HSBC

 

Managed Loan

Hsbcfiddled

Xx/xx/200X

 

IMPORTANT - YOU SHOULD READ THIS CAREFULLY

 

YOUR RIGHTS

 

The Consumer Credit Act 1974 covers this agreement and lays down certain requirements for your protection which must be satisfied when the agreement is made. If they are not, we cannot enforce the agreement against you without a court order.

 

The act also gives you a number of rights. You have the right to settle this agreement at any time by giving notice in writing and paying off all amounts payable under the agreement.

 

If you would like to know more about the protection and remedies provided under the Act, you should contact either your local Trading Standards or your nearest Citizens Advice Bureau.

 

YOUR RIGHT TO CANCEL (seems normal rights of cancellation)

[rhsymonds]

They've advised me that the Managed Loan isn't a loan.

 

Lol, how is that possible !!

 

Surely if its not a loan, its illegal to refer to it as a loan in all these T's&C's ??? And if its not a loan, why is it called a Managed loan, should'nt it be a managed repayment plan ?

 

Wouldnt Trade Descriptions Act 1968 would have something to say about that ????

 

This Act makes it an offence if a trader –

a. Applies a false trade description to any goods;

http://www.dti.gov.uk/files/file8156.pdf

[hsbcfiddled]

SHEET 2

Is as follows.

HSBC

Managed Loan

Hsbcfiddled

Xx/xx/200X

LOAN TERMS

Interest –

1. We will calculated interest on the daily cleared balance of the loan account, on the basis that there are 365 days in each year (including leap years). This means that in a leap year an extra days interest is payable. We will charge interest in arrears on the same day each month or the next working day. From the day that interest is debited to the loan account, the loan is increased buy that amount until it is paid.

Security –

2. Any security provided for other borrowing by you from us does not secure the loan.

Joint borrowers –

3. If the loan is in joint names, your liability is joint and several. This means that you are liable jointly but also individually for all the terms of this agreement.

Repayments –

4. We may change the amount and number of your repayments to take account of any change in the banks base rate after the date of this agreement.

5. You cannot redraw any amount you have repaid.

Default and enforcement –

6. We have the right to demand repayment of everything you owe us under this agreement if a bankruptcy order is made or similar proceedings are taken against you or any of you, or if you or any of you breach any of the terms of this agreement.

7. If we demand repayment under this agreement, you will have to pay interest on the outstanding loan until it is repaid. You will also be liable to pay us for any costs and expenses we incur or charge in connection with the enforcement of the terms of this agreement, e.g. If we have to right to you, and with any demand we may make.

8. If you do not comply with any default notice we send you under this agreement, we may use any money you have in other accounts with us to reduce or repay the amount you owe under this agreement.

Cancellable agreements –

9. We will post you a notice of your right to cancel this agreement when we receive the agreement signed by all of you. Usually we will not allow the loan to be drawn until the cancellation period has ended.

Credit reference agencies –

10. If you do not repay us in full or we do not agree to other repayment schemes within 28 days of our demand, we may tell licensed credit reference agencies.

Listening to your comments –

11. If we do not deliver the standard of service you expect, or if you think we have made a mistake, please let us know. We will then investigate the situation and, if necessary, set about putting matters right as quickly as possible. In addition we will take steps, where appropriate, to prevent a recurrence. Please allow your branch manager or the manager of the department concerned the first opportunity to answer your concerns and put matters right. However, if you remain dissatisfied and would like further information about our process for resolving complaints, please ask for our explanatory leaflet ‘Listening to your Comments’.

Thats it...

Give my little green box a tickle if ive been of help please.

[don leocornay]

Thanks guys.

 

Will check my documentation tonight.

[wednesday1867]

Mine says Fixed Sum Loan Agreement Regulated by the Consumer Credit Act 1974, so mine is a loan, well would of been if id signed it

 

Don, think we are in a similar position, i received an unsigned agreement, and ever since HSBC reckon they have complied, i have recently sent them a letter saying, look pal you havent got it, you wont admit it, youve got 14 days cos in 14 days, I will start court proceedings to get a ruling and my interest repaid, obviously worded it slightly differently

 

Dont know if youve seen my thread take a look

 

http://www.consumeractiongroup.co.uk/forum/general-debt/101738-hsbc-managed-loan-cca.html

[don leocornay]

Hi Wednesday,

 

I have been taking a cheeky peek at your thread. I've had a look at my docs and they say the exact same as yours.

 

I've with-held payments on this loan, but think it best to get back up to date. I can afford it anyway and I don't want to give them any excuse to mess up my credit any further.

 

Other than that. I'm gonna get a solicitor. I'm done with messing around with this

[wednesday1867]

I don't want to give them any excuse to mess up my credit any further.

 

They can't mess your credit file up while the account is in default, can't you complain to someone, they are still dscussing your data while account is in default, Information Commissioner for instance, i dont know which body covers which bit tho

 

Why bother with a solicitor? I'm hoping for at least the default removed and debt wiped, doing it this way, bonus would be getting interest back.

 

Lets see what or of anything HSBC say in return.

[don leocornay]

Well the National Debt advised me to seek legal counsell. I should be getting the complaint forms from the Ombudsman pretty soon. But they say it'll take at least 3 months to look into my query.

[don leocornay]

finally got a response from HSBC not too sure what to make of it:

 

Thank you for your letter ....

 

Where the original signed agreement has been mislaid or is not available, we may send a copy of the form of the agreemnt that the customer would have signed and this must include the customers name and address and all the terms and the usual notices. This document may have to be reconstructed if a blank form of agreement is not available. Section 3.0 of te Consumer Credit, Cancellation Notices and Copies of Documents, Regulations 1983 provides:

 

1. Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof.

 

2. There may be omitted from any such copy:

 

a. any information included in an executed agreement, security instrument or other document related 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 there under 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 s.63.1 of the Act, the date of signature by the debtor of an agreement to which section 68.b of the Act applies,

 

c. in the case of any copy of an unexecuted agreement delivered or sent to the debtor or hirer under section 62 of the Act, the name and address of the debtor or hirer.

 

This regulation embodies the true copy rule. The omissions allowed by paragraphs a to d means that it need not be a complete copy, such as a photocopy.

 

In this case, therefore, a copy with the customers signature is not required and what the bank has provided was sufficient for the purposes of providing a true copy. The bank therefore can rely on the true copy of the agreement to enforce it and reclaim the amount owed to us by the customer.

 

.............

 

Hmm. So basically, they don't have to provide the signed copy.

 

How do I now prove that the agreement was never signed? I'm thinking sworn statement but I'm calling a number of solicitors.

 

Any help?

 

Please?

[rhsymonds]

I got a very similar reply, basically saying that what they had sent was enough to cover them on the CCA request (unsigned cut and paste job, without a date or anything) but i find it very hard to believe that when the law says 'an agreement is unenforceable unless a signed copy can be produced' that they will get away with it.

 

Surely if they cant prove that you signed something, then they dont have your agreement to be bound by its terms and conditions !?!?!?

 

I could print out a letter saying 'We HSBC, hereby absolve you of all debt' then say if their copy isnt signed why should mine be ??

 

(i am aware of the differences, this is just an example to make a point.)

[don leocornay]

I guess the next stage is the Ombudsman. I'd rather go down that route before getting the solicitor. However, it'd be useful to get whatever info they have on me. Will ask for that as well

[don leocornay]

I got some help from Myvesta (Mods - Am I allowed to name them?)

 

This is the transcript from our conversation:

 

You are now chatting with Miss X, a Myvesta UK Senior Advisor.

Don Leocornay: Hello, I'm wondering if I have a case with my situation

Miss X: I would be happy to help, can you tell me a bit more about your circumstances so that I have a better understanding of your situation?

Don Leocornay: I'm a customer with HSBC. I used to have a Graduate Account with overdraft, Loan and credit card

Miss X: OK

Don Leocornay: around 2003 i asked for an extension to my limit and instead they sold me a gold card

Don Leocornay: i was told that the balance would be transferred immediately but it wasn't done for a month

Miss X: I see

Don Leocornay: in the meantime, i'd gone on holiday and used the new card

Don Leocornay: the combined balances took me over my limit

Don Leocornay: i wasn't able to pay it off in one go so i kept paying the minimum amount, but i was still being harrassed to pay the card off in full

Miss X: I understand. What's the situation now?

Don Leocornay: this went on for a year. I kept asking if there was anything they could do. restructure my loan or freeze interest and they refused

Don Leocornay: the only thing they offered me was a managed loan, selling it to me on the basis that the repayment would be lower. however this meant having no overdraft, credit card or even switch card

Don Leocornay: they didn't mention the apr or the length of the term

Don Leocornay: they then threatened to take me to court if it went on the same way.

Don Leocornay: i buckled to their pressure even though i was only a few hundred pound from being within my limit.

Don Leocornay: i never received any documentation and it wasn't nutill a few month later that i found out what the true apr was

Don Leocornay: they refused to change it back.

Miss X: The interest rate should've been shown on the credit agreement

Don Leocornay: i never received one!

Miss X: Did you sign any paperwork at all for the loan?

Don Leocornay: no

Miss X: Did you receive anything at all?

Don Leocornay: no. but in february i asked for a signed copy of my agreement

Miss X: OK. Did they send you anything?

Don Leocornay: they sent a 'true' copy

Don Leocornay: i told them that i'd never signed anything but they claim they can enforce the loan on the true copy

Miss X: They can't without a signature

Don Leocornay: surely it can't be a true copy if there's no original.......

Don Leocornay: they're refusing to provide me with one. they actually lied in a letter and said it may have been destroyed during an office refurbishment

Miss X: The loan is invalid if they do not have a signed credit agreement with your signature on.

Don Leocornay: they refuse to provide one. i have with-held payment until they provide one but they still refuse and are now messing up my credit file saying the loan is in arrears

Miss X: That's their problem. Not yours. They are supposed to keep archived documents on microfiche. If you haven't got a signed copy of the credit agreement and you were never given one to sign, then the loan in fact is null and void.

Miss X: They need to prove to you that you have signed an agreement for this loan.

Don Leocornay: so can i take them to court?

Miss X: Yes. If you're adamant that you have not signed anything, then the loan is null and void.

Don Leocornay: should i get a sworn statement backing this up?

Miss X: It may help yes. Your next part of call would be to contact a solicitor who specialises in this sort of thing.

Don Leocornay: do you have a list of solicitors i could contact?

Miss X: I'm sorry, I haven't. There'll be someone in your local yellow pages who can help you though.

Don Leocornay: what's the official term for the speciality? consumer credit?

Miss X: Yes or personal finance.

Don Leocornay: ok

Don Leocornay: is it worth going to the ombudsman?

Miss X: You could try, however you need to exhaust the banks complaints procedure first of all. The ombudsman will not take your case on until you've done this. It may be worth having a look at their website though to see if they have any solicitors you could contact.

Don Leocornay: The bank's stance is, 'we've done all we need to, pay up. you can go to the ombudsman if you like'

Miss X: Then, you can try the ombudsman

Don Leocornay: ok. so my options are ombudsman, solicitor or both

Miss X: That's right, yes.

Don Leocornay: do you know what I can claim back? would I be able to get interest, charges and (maybe) damages?

Miss X: I really don't know, I'm sorry. This is a legal question I can't answer.

Don Leocornay: ok. i'll take it from here. thank you for your help!

Miss X: You're welcome. Good luck!

[don leocornay]

Guys,

 

Sorry to bug on this but the nerves are getting the better of me.

 

Does anyone know of anyway that an unsigned credit agreement can be enforced in court?

[hsbcfiddled]

I cannot see how any official document can be enforced in court if you have not signed it.

 

Why have a space for your signature if its not a legal requirement to sign it?

[don leocornay]

Adding insult to injury. HSBC are telling the Credit Reference Agencies that my account is in 4 payments in arrears! They've also logged my account as 'Gone Away' - suggested that I've absconded and not told them!!

 

As a result of this, my new bank (Alliance and Leicester) have now rung me up and informed me that until I've resolved my dispute with them, they've cut off my credit card! I explained the entire situation to them and they basically said that I wasn't conducting my credit properly and they don't care.

 

Makes my blood boil! It's official. Banks are all the same no matter who runs them.

[don leocornay]

I think I may be in trouble. I could really do with some help here. I've had a look at CCA 2006 and have found the following:

 

15 Enforceability of regulated agreements

In section 127 of the 1974 Act (enforcement orders in cases of infringement) subsections (3) to (5) shall cease to have effect

 

Which would indicate that the lack of a signed agreement no longer renders it completely unenforceable. So it looks like it could only be rendered unenforceable by the courts. It looks like my case is weakened and I'll definitely have to get a solicitor.

 

Any advice?

[don leocornay]

new message from HSBC

 

Dear Don

 

Thank you for your e-message dated 1 October 2007.

 

Please be advised that I have passed this message on to the relevant department who will deal with your query and be in touch shortly.

 

Furthermore, our records show that a Final Demand was issued on 2 October 2007. Following the issue of the final demand, all facilities has been suspended and the account will be passed on to a debt recovery service.

 

In this instance, I would appreciate if you could contact us on 08456 006 423 in order to discuss repayment details. We may also be able to assist you in current financial situation and suggest a repayment proposal.

 

I trust this clarifies matters.

 

Yours sincerely

 

 

XXXX

Manager Customer Credit Services

 

Basically they're still trying to enforce. Any debt collectors who try and enforce this I'll refer back.

[albertini]

May i suggest you transfer this thread to the debt forum as i'm sure you'll get more specialist help there.

 

I think you need to know when the Managed Loan was implemented. If it was pre 2006 then it was covered by the old CCA. After (April i think) 2006 then its the new regs which don't require a signature i believe.

 

If your loan was set up before 2006 then they havent got a leg to stand on.

 

You really need to get this thread moved so the specialists on the debt forums can help you.