HBOS... again

[rosierose]

For those of you who know the battle my OH had (and won with the help of you lot) against this lot, welcome back

 

This fight originated when a building firm retained my credit card details and took money from my account without my permission. The bank refused to refund the money which has lead to a stand-off.

 

Background.... I signed the agreement in my local branch and they duly gave a copy to me. I was in a rush at the time, but recall the piece of paper I signed was almost certainly blank. The "copy" I was given at the time was just a blank sheet of paper with my signature.

 

Of course, I have put my concerns in writing to the bank, but they have only written one letter in response, saying they'll get in touch in a month or so.

 

Imagine my surprise when a 'copy' agreement showed up in the post with interest rates and prescribed terms (sans signature box and dates). Then two others show up, both from different offices showing differing interest rates. I seem to recall letter from the OFT saying that a creditor cannot conjecture agreements. That they must have an original?

 

Well, true to form, HBOS have started the telephone harassment. Calling my mobile around 5 times a day and house phone about the same. What really annoyed me was two calls to my fathers home. Bless him, he's a total pussycat but this really is going too far!

 

So... I have an improperly executed agreement at the very least which the bank is persuing anyway; the bank has now started processing late payment markers against my CRA file and harassment.

 

I am seriously considering an injunction under section 3 of the PfHA. If anyone has brought such an action I'd be very grateful for a POC. Do you have to prove harassment first - I take it the civil standard is sufficient?

 

Rosie

[Guest Old_andrew2018]

any more news

[rosierose]

any more news

 

Well, I received a letter from a Mr Greig (hence forth referred to as 'Old Greg') telling me that HBOS had acquitted their responsibility under Section 78 by sending the generic t&c's they seem to be sending everyone these days.

 

They have also continued harassing both me and my father

 

Thank you for your letter of 23 June the contents of which are noted.

 

With regard to the points made in paragraph eight of your letter to the effect that you have fully discharged your duty under Section 78 of the Consumer Credit Act 1974 it should be noted that, whilst true that a creditor may omit certain information in answer to a request for information, he must base his response on actual information contained within an agreement. He may not conjecture an agreement i.e., it must be a ‘true copy.’ Given that the three ‘copy’ agreements sent to me had differing interest rates I would have thought that at least two would not be correct. Therefore my insistence on sight of a facsimile is not unreasonable.

 

There is however another point: my later recollection that I had not signed an agreement compliant with the Act at your branch. The document I signed was in fact utterly illegible. At the very least, this would render an agreement improperly executed by virtue of Sections 61(1) and 65(1) of the Act. Moreover, the ‘copy’ agreement given to me at the time was completely blank, save for my signature. This would also render the agreement improperly executed by virtue of Sections 63(1) and 65(1). Either of these two points would preclude enforcement except by the court. And, of course, due to its illegibility, it is rendered irredeemably unenforceable being subject to the provisions of Sections 61(1) and 127(3).

 

If, as you state, you have “investigated this matter,” I would have thought you would certainly be aware of these facts. I am therefore very concerned that you could claim to have discharged your responsibilities under section 78 of the Act, which seems a misrepresentation of the actual situation. Indeed, without an agreement in place, to send a fiction would seem in breach not only of the Consumer Credit Act 1974 but also the Fraud Act 2006.

 

In addition, I believe there is also little doubt that your actions would classify our relationship as “unfair” as set down in the 2006 Consumer Credit Act.

 

With reference to your assertion that the status of my account is registered correctly with credit reference agencies I would like to make the following point: given the fact that there is no agreement how can there be any term which would either give you the right to publish my personal data or even any basis with which to calculate the status of any account?

 

Your actions are also in serious breach of the banking code 13(6): “We may give information to credit reference agencies about the personal debts you owe us if:

• you have fallen behind with your payments;
  
• the amount owed is not being disputed.”
  

Suffice to say there is no doubt we are in dispute.

 

I would advise undertaking a study of Kpohraror v Woolwich Building Society ([1996] 4 All ER 119) to gain an understanding of the legal ramifications of your actions with regard to the publication of erroneous, damaging financial data. As I am sure you will readily see your position is founded neither in law nor best practice and I therefore require the removal of the offending data immediately. Please note that the defamatory information you have published has negatively affected my private and business affairs and I require your proposal for compensation for the damage to my financial reputation within 14 days.

I had given them an 'out' in my last letter - just asking them for the removal of the data which they have chosen not to do.

Lastly, for some time I have been undergoing a barrage of unwanted telephone calls from your Retail Bank Collections department. This office calls my home and mobile telephones up to 80 times per week. You have also harassed my recently widowed father on an ex-directory telephone number, the callers often hanging up when asked to identify themselves. In both cases you have continued to harass myself and my family despite having been told to cease. This behaviour is clearly in breach of the Protection from Harassment Act 1996. Cease and desist immediately. I require your proposal for compensation again within 14 days. Should you persist I will bring an action under Section 3 of the Protection from Harassment Act 1996 to curtail this behaviour.

 

In your attempts to enforce a non-existent agreement, I believe you have breached the Consumer Credit Acts 1974 & 2006, Section 40 of the Administration of Justice Act 1970, the Fraud Act 2006 and the Protection from Harassment Act 1996. I trust this letter has shed sufficient light on the matter to make these facts abundantly clear.

 

You have been given some months to investigate this matter and I believe the above period more than adequate for a response. I look forward to your reply and would recommend you seek the advice of legal counsel before doing so.

That was sent yesterday.

 

The calls are all logged though we refuse to answer them these days.

 

I would think that they'll continue as they have done - refusing to send a copy and harassing us as they have done up until now. We'll see...

[rosierose]

Quick update...

 

They issued a default notice in August. Which was dated incorrectly (either that or first class post took tens days). It also contains the wrong amount - due to the penalty charges apllied.

 

After a few standard "our charges are fair letters," low and behold I finally received a letter in response.... that was quick! Nearly four months!

 

In the letter they admit they don't have an agreement but claim that even though the agreement (what agreement?) is unenforceable that they can apply for an enforcement order. Does this smell a bit of Rankine?

 

They claim that they have the right to publish my data without an agreement. And here's the surreal part about this: thay have already stopped publishing any data. That's just odd, unless they plan to start processing again soon.

 

Also they claim to have called me only 4 times??????? Jeez. I have over a thousand calls logged as text messages on my mobile alone! Disregarding the calls to my and my father's land lines. Oh yes, and for the past week, the calls have stopped.

 

I don't think this is over yet somehow. If they play true to form I expect them to initiate a small claim in the next month or two. Then the fun really begins :grin:

[palomino]

I've quoted the Protection from Harassment Act at two people. They both stopped so I'm not exactly sure what to do if they don't as in your case.

My first stop would be the Police - try your local Community Service officer there (if your police have one).

[rosierose]

I don't think the police would be interested, or at least I've not heard of the police intervening in this sort of thing before.

 

HBOS know that their tactics aren't lawful, which is why they have settled harassment claims - both the cause celebres of a couple of years back, and no doubt a few that never made the headlines. Though I must say, I'm on good terms with our community policing bod. Really nice bloke, but like he says "my job is arresting people"

 

I suppose an action (injunction) under s3 of the PfHA would have more merit now that the bank have admitted they have no agreement, but even so, I'm not altogether sure which track it might be allocated and now that this seems to have stopped, well, what's the point?

 

I'm afraid I'm not terribly up to date with the unfairness test contained within the 2006 CCA, but I do recall reading somewhere about the harassment of debtors under unenforceable agreements being pertinent. If someone knows the right bit I’d be grateful.