My mum v HSBC

[citizenB]

subscribing. x:)

 

I have to admit to being disgusted at the bank's treatment of your mother. Good luck x

[shieldblaster]

Hi all

 

I have heard nothing at all from Metro Services so have decided to take HSBC to court and get the debt ruled unenforceable through lack of valid CA. I reckon have gained enough knowledge and confidence so far through this forum to at least get the ball rolling.

 

However......

 

I have put the following letter together just to see if HSBC will see the light and simply remove the default which I will be quite happy with, or would they rather I haul them in front of a judge. I don't hold out much hope of them complying but it allows me to keep digging them in the sides whilst I get my big guns prepared

 

Comments, obs, advice, criticisims are all gratefully received.

 

HSBC Bank

365 Chartwell Square

Southend on Sea

Essex

SS99 2UU

 

21 April 2008

 

Your Ref:

 

 

Without Prejudice

 

 

Dear Sir

 

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

 

On the 28 August 2007 I made a formal request for a true signed agreement for the above account under The Consumer Credit Act 1974 s.78(1).

As yet you have failed to comply with request, and as such the account entered default on the 13 September 2007.

 

As you may not be aware, failure to comply with this request within 12 working days renders the alleged debt in default and unenforceable. Furthermore, if this non-compliance continues for a further month then a summary, criminal offence is committed.

 

"Sec 78(6) if the creditor under an agreement fails to comply with subsection (1) -(a) he is not entitled, whilst the default continues, to enforce the agreement

(b) if the default continues after one month he commits an offence.

 

The lack of a compliant credit agreement is a very clear dispute and as such the following applies:.

• HSBC bank may not demand any payment on the account, nor am I obliged to offer any payment to you.
  
• HSBC Bank may not add further interest or any charges to the account.
  
• HSBC Bank may not pass the account to a third party.
  
• HSBC Bank may not register any information in respect of the account with any credit reference agency, including any alleged default.
  
• HSBC Bank may not issue a default notice related to the account.

That being the case the default entry that you have placed on my mother's credit record and passing the alleged debt to Metropolitan Services is illegal and constitutes a criminal offence.

 

In order to avoid further action I insist that you remove the default entry immediately and cease any further passing of my mother's personal data to a third party.

 

If you fail to do this then I will have no hesitation in starting a small claims procedure against you. You obviously are not in possession of any valid credit agreement which is a complete defense against enforcement and I will also be asking for the default to be removed as, since you have not complied with the Consumer Credit Act 1974, it follows that you are not entitled to benefit from that same Act by punishing and tarnishing my mother's previously unblemished record.

 

Also as part of the action I will be reclaiming any unlawful interest or penalty charges, damages, and any court expenses incurred.

 

 

Please take note that you have 14 days from receiving this letter to contact me to advise me that all my requests have been complied with.

 

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you would prefer to simply remove the unlawful default rather than have a court order you to.

 

I would appreciate your due diligence in this matter.

 

I await your rapid response.

 

Yours Faithfully

[citizenB]

Sounds pretty good to me. But wait and see what the others say.

[shieldblaster]

Thanks cB

[johnnymitch]

That looks the business to me

 

Just one small point shield - the last paragraph - should it say 'rather than have a court order against you too'......

 

On the other hand you may just want to remove one 'o' from the last word? making it 'order you to'........

[shieldblaster]

Cheers johnny..I have amended the letter as per your suggestion

[johnnymitch]

Happy to help ,mate - if it's not being too pernickety could i suggest that where you have 'mothers' (as in my mother's) you need an apostrophe - only about 3 occasions .......

 

And that's it- I promise..........

[shieldblaster]

Done and not pernickety at all... I really ought to have paid attention in english at school

[johnnymitch]

I think I learned all mine after I left school - from reading books and stuff......... LOL

 

Of course me being Scottish ,freaky would tell you I took English as a second language..........

[chris1977]

Hi Sheild, that's looking good.

 

Have you considered the Data Protection Act here? If they have recorded a default with third parties, i.e. CRAs, without your mum's permission to process her data (that is without a copy of the credit agreement or original application) then they may have comitted an offence under that act also. Just a thought.....

 

Anyway, all the best and keep us posted

 

Chris

[car2403]

Hi Sheild, that's looking good.

 

Have you considered the Data Protection Act here? If they have recorded a default with third parties, i.e. CRAs, without your mum's permission to process her data (that is without a copy of the credit agreement or original application) then they may have comitted an offence under that act also. Just a thought.....

 

Anyway, all the best and keep us posted

 

Chris

 

Not quite right, but good effort

 

The s.35 offence of sharing data with third parties without consent under the DPA 1984 was repealed by the 1998 Act. I'd argue that the offence was never taken seriously and that most people weren't even aware of it (check any DPA 1984 documentation you have, because it's definately there) so it was repealed as ineffective. Heck, even I had to tell the ICO about it, so there you go.

 

The sharing of data without consent is still unlawful, as its outside of the principles under the 1998 Act, but it isn't an offence now, sadly.

[chris1977]

Hi Chris,

 

Although it's no longer an offence, would I be right in thinking it could still be a cause of action, as the recording of the default without consent to share data is an unlawful act under the DPA 1998?

[shieldblaster]

Thanks chris and chris and thanks for the heads up over the DP violation. I have metioned it to them in previous letters I have sent so if they bother to read the file they will know I am aware of what they are doing. And if it comes to court then I will give it serious consideration.

 

This letter is more of a 'I haven't gone away' letter. I don't expect much from it but it whiles the time away whilst I prepare my case and miracles sometimes do happen

[car2403]

Hi Chris,

 

Although it's no longer an offence, would I be right in thinking it could still be a cause of action, as the recording of the default without consent to share data is an unlawful act under the Data Protection Act 1998?

 

You bet'cha it is...

[chris1977]

Hi Shield, what's the latest?

[robcag]

Hi Shield, what's the latest?

 

Hi Shield

 

I'm also interested as to whether you have made any progress on this!

 

Cheers

Rob

[shieldblaster]

Hi all

 

Sorry for the dealy in updating but the whole thing reached a bit of an empasse' as they have a habit of doing.

 

However the latest is that after receiving yet another template letter and a strong response from me referring them to my previous communications (lack of valid CA etc etc) I have just received a letter today with the news that they are no longer feel that anything can be gained from persuing the debt and the debt will be written off!!

 

So there you go! it would seem that due to the complete lack of a valid CA they have backed down. All that's left now is to get them to remove the default HSBC placed on my mother's credit file so I will be winging a letter off tomorrow to that effect.

 

I would like to say a BIG thank you to all that offered their help and advice..you are true angels imo and I would like you to know that you have made an 80yo pensioner very happy and very relieved!

 

For those that are still in battle with these people please don't give up.. they can be taken on and they can be forced to back down when confronted with the knowledge and power that is abound on this forum.

 

God bless you all

[AndyOrch]

Well done Shield made up for you and your Mum:)

 

Regards

to your Mum BTW

 

 

 

Andy

[Castlebest]

Woohoo Well done Shield!!!

 

A Big Congratulations to you and your Mum

 

pete

[johnnymitch]

That goes for me too shield - excellent result !

 

 

CONGRATULATIONS !!

Your mum should be proud of you - you hung in there - an example to many not to give up.................

 

Well Done !

[shieldblaster]

Thanks you fellas I'm not sure I could have done it without you all though.

 

If I could just run this past you as well...just me thinking out loud really

 

They have declared in writing that the debt is now to be written off, i'm assuming it's because of the lack of a valid CA.

 

That being the case, the default that they placed on my mums credit file was /is unlawful if not illegal as they were obviously operating outside of the CCA but using it's instruments as and when it suited them. So i am quite within my rights to ask (order?) them to remove it?

 

Observations welcomed

Edited November 21, 2008 by shieldblaster

[citizenB]

Well done shield blaster, excellent news.

 

When LTSB wrote to OH saying much the same as HSBC has to you.. that they would no longer pursue due to lack of CCA, they also advised they were removing any adverse recordings on OH's credit files with the CRAs.

 

So yes, I would think you are well within your rights to request that your mum's credit files are updated correctly.

[shieldblaster]

Ok thanks CB

[chris1977]

Well done Shield, that's fantastic news

[shieldblaster]

The saga continues 8)

 

Recieved this in reply to my letter last week asking them to remove the default entered against my mother's name. This follows the letter from them informing me they were writing of the debt

 

 

Any observations/comments would be welcome. I'm forming a reply and will upload it for comments later.

 

Thanks in advance