HSBC problem

[johnnymitch]

Hi Dougy 79,

It may be worthwhile considering a 'parachute' account , which will take the money you need to exist on out of the hands of HSBC.

Parachute Account

 

http://www.consumeractiongroup.co.uk/forum/general/13832-do-you-need-parachute.html

 

This is an account with a completely separate bank, which you must not overdraw, but use for day to day expenses .

This will give you breathing space to deal with HSBC and pay them what you can afford if any.

 

Meanwhile, I would follow pete's advice in #2 and carry on with getting your claim to the 'stayed in court ' stage for three reasons :

 

1. It protects the 6-year limitation on refunds

 

2. It attracts 8% section 69 Interest when you start court action .

 

3. They will still probably hit your account with charges , but they can't take action to recover them without coming up against your claim in court .

 

As the account would then be unarguably 'in dispute' they can't pass it to a DCA for collection .........

[johnnymitch]

Oh ,well done , that man !

[johnnymitch]

Hi dougy ,you could try using some of the stuff I've put in blue text towards a structured reply .........

Thank you for your letter dated concerning the charges applied to your account. I have now fully investigated the matters you raised.

Thank you for investigating this matter fully , that means you are now aware that this account is firmly 'In Dispute'

I note your comments regarding your outstanding balance with hsbc, the bank is confident that our charges are transparent and legally compliant and that this belief will be upheld by the court. The opening of your account with hsbc and its subsequent use constitutes acceptance of the bank’s terms and conditions and the associated charges.

Whilst you may be confident that the court will uphold your claims of legality and transparency, may I point out to you that the court has not yet done so and that the FSA waiver has been extended to enable the court to make it's own decision . This means that this account is still firmly 'In Dispute'

 

I note from reviewing your account that a demand was sent to you on 16h Jan. I would advise you contact pour financial guidance team on….. To arrange a mutually acceptable repayment plan. If by the end of this period we are unable to agree a satisfactory way forward, your account may be closed and the balance referred to a debt collection agency.

As you are also fully aware, the actions which you threaten in your letter of xx xxx xx cannot be carried out .....

a) you cannot close an account which is in dispute

b) you cannot transfer an account which is in dispute to a third party

Any such action on your part will be immediately reported to the FSA ,FOS, and Trading Standards as a breach of the Banking Code and the terms of the FSA waiver .

If you have any queries contact me on….If the matter is not resolved for you can contact senior manager of our service team at. I am obliged to inform you that if we cannot resolve the complaint you can contact the financial ombudsman service

You could also reiterate all of the restrictions that were outlined in your previous letter and also make them a reasonable offer of what you can afford if you wish... that will go down well if they do take you to court ...... which they won't !

Hope this helps .........best of luck

[johnnymitch]

Dougy , they can't do it ........ they are not allowed to transfer the account whilst it is in dispute . If they do you write to the debt collection agency (which in HSBCs case is their own pet DAC - Metropolitan Collection Services ......who use their peremises and database etc ..... just another HSBC dept really ...... ) . Tell them the account is in dispute and should be handed back to hsbc ........

[johnnymitch]

Also, have a read again of the advice you got from pete and jo ...... it is still very relevant ..............

[johnnymitch]

Ah, you've beat me to it again pete , I,ve just spent a age typing this up -laffin - so I'll post it for what it's worth .....

Whilst I appreciate that you currently have a dispute on your account with regards to your accounts, please note that we still expect you to run your accounts within the agreeds terms and conditions. If this does not happen then HSBC are entitled to pass your accounts onto a debt recovery agency.

As you have stated that you believe that are charges are unfair, we have deemed this to be a legal challenge, and as such have contacted the relevant department to deal with this.

If you have deemed this as a legal challenge it means you recognise that the account is in dispute!

As you are aware there is currently an on-going court case with regards to the legality of bank charges. HSBC are therefore placing all cases on hold whereby a customer is stating that they do not feel that our charges are fair. When the court case has concluded HSBC will act accordingly. However, HSBC still require you to pay back any outstanding balance on the account. It is therefore not acceptable for customer's to not pay a debit balance on the account and HSBC will follow our collection procedures if this happens.

If the account is in dispute you cannot pursue collection procedures !

Given the amount of your outstanding balance on the account, we are unable to accept XX/month as repayment. As your account has been placed on final demand we will require you to contact us immediately to make a repayment offer.

I have made you an offer of XX.XX which ,if you had taken the trouble to check, is weekly - not monthly and should therefore be more than acceptable to you . I await your concurrence on this .

 

Section 13.6 states that we will not pass any information to the credit reference agencies if your account is in dispute. However, as there is currently a hold on bank charges following the outcome of the court case, customers are unable to place a dispute on the account for this reason. Therefore, any information that we may place at credit reference agency will not contradict the banking code.

Your logic on this is unacceptable. You are using the OFT Test Case to say that customers may not dispute their accounts, but claiming that you have every right to place potentially inaccurate information with a Credit Agency. I have to advise you that I am sending a copy of your letter to FOS, FSA and OFT as I consider you are breaching the terms of the waiver and attempting to mislead me with inaccurate interpretations of the facts.

This also means we are fully entitled to add charges and interest onto your account, and we may continue to do so whilst your account is in breech of the agreed terms.

~The charges applied to your account have all been applied correctly and in line with the bank's published tariff. These charges are clearly outlined. Upon signing for your account you singed to say that you agreed to these terms and as such HSBC do expect our customer's to run their accounts accordingly.

And as customers we expect to be treated fairly under the FSA’s TCF initiative

 

PS - I'd welcome your thoughts , if any pete ...... :grin:

[johnnymitch]

Thanks pete ,

 

That was my first thought , they shouldn't get away with blatantly lying to customers, twisting the facts to suit themselves. They really are treating customers with more contempt than ever .. and it's time FSA & FOS started doing what they're supposed to be doing - protecting complainants .......

 

There you go guys , rant over for tonight ....

[johnnymitch]

Hi Dougy ,

 

Pete has given you a couple of great leads there - it's worth scanning through and picking the bits you think are relevant .......

 

As regards getting anything from a Debt Collector it will probably be Metropolitan Collection Services (MCS) who are HSBC's in -house collection department and not really an agency at all .... so I wouldn't worry too much about that .

[johnnymitch]

Hi dougy , welcome back thanks for the update ....

 

I'm now really scared about the debt collection agency-how to deal with them and also wondering whether or not what HSBC have done is true and by the book.

 

First of all , don't worry about MCS , as I said in # 37 -they are not a proper Debt Collection Agency ,they are only HSBCs in -house collection dept ......... they're trying to scare you ..... don't let them away with it ..

 

They have done everything wrong in this case and are arrogant enough to think they can get away with it .......

They have as you say ,admitted that this account is in dispute (keep that admission somewhere safe , dougy , you may need it later, if it comes to a court appearance). As the account is in dispute , they are not allowed to transfer it to a third party , so I would write to MCS and ask them to hand it back to HSBC (along the corridor - they use the same premises and databases ..... )

 

Most of what they are writing is such utter rubbish dougy that it's laughable ...... if it wasn't so serious , putting a note on your credit file is also not on when an account is in dispute ..... .

There is a letter around somewhere (by Bankfodder, I think) , to warn Credit Agencies that the account is in dispute and that they should not pass on any erroneous credit info to other agencies / persons ......... I can't find it at the moment though ..

 

One thing at a time though , and don't worry about some big guy knocking at your door - they can't do that without going to court ...... and they won't do that - because you have a counter-claim waiting there .....

 

Also , have a look at the link here , particularly paras 2.8 onward ....

 

OFT Debt Collection Guidance

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft664.pdf

Hopefully you'll get some more advice from others , but don't worry dougy , it's not as bad as it sounds , they're trying to scare you ....

 

 

...

Edited March 11, 2009 by johnnymitch

[johnnymitch]

Just one point dougy - have you got a claim 'stayed ' in court ..... ? I've just realised you haven't said if you followed through with that ...

[johnnymitch]

Oh ,dougy , they would say that to deter you from putting your claim to court ...... it is really important that you lodge it with the court for the following reasons :

 

Why you should start claim (courtesy of Mr Lex)

 

 

Remember, you need to get your claim to court

 

When you start to send off your letters, they will probably try to tell you you can't claim because the case's are 'stayed' It is important that you ignore this and carry on, only the courts can put a 'stay' on your claim

 

Although the banks have a ongoing test case with OFT there are a number of reasons why you should start to claim at court now:

 

Any older charges (coming up to 6 years) could be lost if you wait for the OFT case to end. Start your claim now and those charges are protected

 

(you are supposed to be protected by the 'waiver', we now know you are not

When the stays are finally lifted, you will be one of the first in the queue to get paid

 

Once the courts are involved, you get the 8% interest

 

While the banks are protected by the stays, we the consumer, have no such protection and charges continue to mount up

 

For some people this may mean going into default. If it is clear that the default was made in respect of charges and that it was lodged after a charges claim was begun then these users have a really excellent chance of having it removed

 

http://www.consumeractiongroup.c o.uk/forum/data-protection-default-issues/164871-castlebests-default-removal.html#post1772646

 

So, dougy it was hugely in their interests to head you off from submitting your claim to court . But it's not too late , although if they've defaulted you , they've done it before your claim was lodged , which makes it more difficult to remove ....

But for the other ,reasons stated you should set the ball rolling - if you sent them an LBA don't bother with another one .... it told them you'd take court action if you didn't get your money back ... and if your claim is in court soon they can't take court action to recover money from you without coming up against your counter -claim - that's how important it is and why they didn't want you taking your claim to court ........ they really are a despicable shower .......

Don't 'accommodate' them any longer dougy - go get 'em !

[johnnymitch]

Try this one dougy - amended to suit your circumstances .........

Account number: XXXX XXXX XXXX XXXX

ACCOUNT IN DISPUTE

I must admit that I am rather bemused as to why this account has been passed to yourselves, as it is in dispute with the **original/DCA** and has been since (DATE) . Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

As **original/DCA** are now in default of my Consumer Credit Act request, OFT Collection Guidelines, Subject Access request and have also breached s10 Data Protection Act request , I consider this account to be in SERIOUS DISPUTE.

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

Now I would respectfully suggest that this account is returned to the **original/DCA** for resolution of these defaults and breaches, as **New DCA** cannot lawfully pursue any enforcement activities.

If **New DCA** chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

After taking advice, I am of the opinion that any continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines

Also be advised that I will only communicate with you in writing.

Furthermore, should it be your intention to arrange a “doorstep call”, please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make an appointment with you.

There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and if you do so, then you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance.

I hope that this will not be necessary and an acceptable solution can be accomplished.

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

Yours faithfully

[johnnymitch]

Happy to help dougy . If they call you up just refuse to answer their security questions , they can't talk to you then , because they're not sure if they've got the right person .......

 

Or tell them in writing that you will only correspond by letter......there's a template letter if you want to use it ........

[johnnymitch]

Would you respond to HSBC too? Or provide them with the same letter?

 

As MCS are HSBC I wouldn't think it'll make much difference , but you could send a copy just to be sure they don't play the dumb card ....

[johnnymitch]

Hi Dougy ,

 

The ** just mean delete /insert whichever is applicable i.e.put in MCS or HSBC as applicable .....

 

As for the other matter, I think that is their way of trying a cop-out - putting their twisted interpretation of the waiver to suit themselves . Of course that is purely my opinion , dougy .......

 

My understanding is , that , if an account is 'In Dispute' (active or otherwise ) , then they cannot take action to collect until the dispute is settled . For goodness sake , they're already getting carte blanche to carry on with their heinous charges during the court case , what more do they want ?.....

 

But you can nip all this in the bud dougy , by getting your claim into court ASAP ......... then they can't take you to court without running into your counter-claim .......

[johnnymitch]

Counter-claim

What it means dougy is that they won't take you to court for what they reckon you owe them , because your claim for £xxx . xx will be there and they don't want to have to pay that as part of a settlement deal which the court would probably be keen to do i.e.offset what they owe you against what you owe them ....... so they won't go there ........

 

There are hundreds, if not thousands of claims in this position and they have not gone to court with any of them as far as I know.....so it keeps them off your back until they run out of appeals and they have to cough up on all the 'stayed' claims.......

 

Start your court action by getting a form N1 from your local county court - instructions for filling it in are here :

 

Particulars of claim - N1 - updated version now available

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/681-4-particulars-claim-n1.html

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/844-n1-claims-form-pdf.html

[johnnymitch]

Article title 26 on page 2 of the 2nd link is the one you want , dougy .

[johnnymitch]

I would et that first letter go as it stands dougy , - until you get that claim lodged at court you can't hit them with the 'Counter-claim ' hammer .

 

We would draw your attention that if judgement and an order for repayment in full is obtainedand remaines unpaid, the following enforcement options are availiable and maybe pursued

1. Warrant of execution by baliffs against goods owned

2. Application for attachment of earnings with your present or future employer

3. Application for charging order on any property you may own or are purchasing under mortgage

 

This is scaremongering stuff dougy , they can't do any of this without a court order , ..........

 

So, it's really in your interests to work on your N1 and get it into court Monday ........

Edited March 13, 2009 by johnnymitch
afterthought ........