HSBC not suppling signed CCA

[flyerx]

Hi,

 

Could i ask for some advise please, I took out a Midland card back in 1990.

 

I used the template from this site to ask for a copy of the CCA and sent the £1 postal order.

 

I have today received a letter from them which states as follow:-

 

START - "I refer to your recent letter and have noted your comments

 

Your letter has been treated as a request under 78 of the consumber credit act 1974 and i have, in compliance with that section, enclosed the following documentation:

 

A copy of the original Agreement Form

A copy of the original Terms

A copy of the latest Terms

A copy of the latest Notice of Variation

 

Please find enclosed your payment of £1

 

Section 78 (1) of the consumer credit act 1974 requires us to provide a copy of Executed Agreement if any. Regulation 3 (2) of the consumer credit (Cancellation notices and copies of documents) regulations 1983 allows that certain items may be omitted from such copies, including the signature box and signature.

 

Therefore the copy of the Executed Agreement we must supply is a copy, but need not be a photocopy, the signed agreement as varied, where there is a power to vary the Terms of the Agreement, which there is with your Card Agreement and the power has been exercised to vary the Agreement, which again is the case with your Agreement.

 

We have, therefore enclosed an upto date copy of the terms applicable to your account, a copy of the latest variation notice issued in respect of the account and a blank copy of the agreement form. The agreement form contains the original terms that you accepted when you entered into the agreement, The section headed introduction highlighted gives the bank the right to vary the Terms. The variation notice shows that the Terms have been varied and therefore, in accordance with the legislation, the up to date Terms and the appropriate information to produce" - END

 

It would appear to me that they don't have the original signed agreement?? because they have only send me a blank copy and returned my payment.

 

Could someone advise me on my next move?

 

Many Thanks

Sam

[Josie8]

Send a SAR request

[Josie8]

However very likely they don't have an agreement that is enforceable

[flyerx]

Thanks Josie

 

I thought as much, S.A.R letter going in the post Monday

[flyerx]

Sorry i can't seem to find the S.A.R. template. could you point me in the right direct on the site please.

 

Thanks

[flyerx]

Will this letter me a good one to send??

 

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account. I would now request you send me your official complaints procedure within 14 days.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on **DATE**.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

If that request is not satisfied after a further 30 calendar days your client commits a summary criminal offence.

 

These limits have expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

And

 

(b) If the default continues for one month he commits an offence.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

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

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

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

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

[creditcardmug]

Hi, thats a good letter, heres a SAR edit to suit if ness, from their reply i suspect they have didly squat especially after 18 years,

 

Data Protection Act 1998

Subject Access Request

 

Dear Sir/Madam

 

ACCOUNT NUMBER: xxxxxxxxx (or multiple numbers if more than one account)

 

Please supply me with all data that you hold on me. This includes in particular, but is not limited to, the following:-

 

1. The original signed, executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

3. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR.

4. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

6. Details of any collection charges added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

7. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

8. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

9. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

10. Copies of statements for the entire duration of the credit agreement.

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

Yours faithfully,

[flyerx]

Many thanks for your reply.

 

I will get that sent out monday.

[42man]

They have not complied with your request.....

 

Send them this by recorded

 

Dear Sirs,

 

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating 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 thereunder 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 cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

[flyerx]

Thank you for your posted letter, It is now in the post

 

I will update you when a responce is received

[flyerx]

Hi,

 

Just received a reply to my letter and it is a follows:-

 

START

 

I write with referance to your letter dated 26th November 2008 and your request for a copy of the original Agreement relating to your credit card account. I am sorry that despit our previous respomse that you remain dissatisfied.

 

Section 78 (1) of the consumer credit act 1974 requires us to provide a copy of Executed Agreement if any. Regulation 3 (2) of the consumer credit (Cancellation notices and copies of documents) regulations 1983 allows that certain items may be omitted from such copies, including the signature box and signature.

 

Therefore the copy of the Executed Agreement we must supply is a copy, but need not be a photocopy, the signed agreement as varied, where there is a power to vary the Terms of the Agreement, which there is with your Card Agreement and the power has been exercised to vary the Agreement, which again is the case with your Agreement.

 

We have, therefore enclosed an upto date copy of the terms applicable to your account, a copy of the latest variation notice issued in respect of the account and a blank copy of the agreement form. The agreement form contains the original terms that you accepted when you entered into the agreement, The section headed introduction highlighted gives the bank the right to vary the Terms. The variation notice shows that the Terms have been varied and therefore, in accordance with the legislation, the up to date Terms and the appropriate information to produce

 

I trust my responce has claified matters for you. However, I am obliged to advise you that complaints we cannot resolve can ultimately be referred to the Financial Ombudsman Service. If i do not hear from you within 8 weeks, the bank will consider this matter resolved.

 

If you have any queries or would like any further information, please contact 0845 xxxxxxx, quote ref number xxxxxxxx

 

I trust that matters are now resolved to your satisfaction, If this is not the case, you can escalate your concerns by writing to the Senior Manager of our Service Quality Team at the following Address.

 

The Senior Manager

Service Quality Team

HSBC Bank PLC

xxxxxxxxxxxxxx

xxxxxxxxxxxxx

xxxxxxx

xxxx xxx

 

Iam obliged to inform you that complaints we cannot resolve can ultimately be referred to the Financial Ombudsman Service,

 

Thank you for taking the time to bring your concern to our attention, Iam only sorry it was necessary for you to do so.

 

Your Sincererly

Ben Trow

 

END

 

Any advice on the next step?

[42man]

They feel they have complied, but without the signed agreement, they will NOT be able to enforce it !!!

[creditcardmug]

In other words, we dont have an agreement, so this is something we made up to appease you:rolleyes:

[flyerx]

What would anyone recommended as the next step?

 

Do they have to send me a true copy of my signature??

 

The reason i ask is that another cca request i have made to Halifax has come back with a similar reply stating "Under the act they do not have to supply a copy of the true signature" i have had the card for 4 years and expect them to have it, Do they have it and don't need to supply it or are they fobbing me off because they don't??

 

Any advise greatfully received

[bazaar]

Hi Flyer

They've done whats requested and allowed, however, now that youve put the account in dispute, you are under no obligation to pay anything until such time that they produce the goods as it were.

If they have no original agreement that has been properly executed, then it will be difficult for them to enforce in court. So now the fun and games begin.

[B3rty]

This is worth reading

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

[atwozee]

I think they are stretching the interpretation of the regulations just a little bit – perhaps if you write to them and ask them where in the regulations it allows them to omit your personal information (name & address) – that would be a start.

 

They are confusing a request for a copy of an executed agreement (s7:cool: with that of an unexecuted agreement – here is a copy of the relevant section of the regs:

 

 

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 (SI 1983/1557)/3 General requirements as to form and content of copy documents

 

3 General requirements as to form and content of copy documents

 

(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 relating 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 thereunder 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 section 63(1) of the Act, the date of the signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

© 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; and

 

(d) in the case of any copy of an executed agreement given to the debtor under section 77(1) of the Act for fixed sum credit, or under section 78(1) for running-account credit, under which a person takes any articles in pawn, any description of the article taken in pawn.

[flyerx]

Hi,

 

Just to let you know this is still rumbling on.

 

I have asked them now 4 times to provide the orginal signed agreement (or copy of) and they are still declining stating they don't have too!!

 

So a quick question under a SAR request do they have to provide the signature? If not i don't know what else to do.

 

Personally i'm 99% sure they dont have it as the credit started 19 years ago..

 

Thanks

[bazaar]

If youve asked for this under an SAR then they are duty bound to supply it. You'll now have to decide if its worth enforcement via court for production, once theyve admitted they dont have it, then they would be a little unwise to claim against you

[flyerx]

Hello,

 

Well its been a while for an update 14 months.

 

Basically i have been continually asking HSBC for a signed copy of the agreement under the CCA, I also requested it under a SAR - But still nothing.

 

Then i receive a letter from DG Solicitors and once again i request a copy of the CCA and nothing has been supplied.

 

Then it went quite for a few months until today when i receive a County Court Claim N1CPC.

 

Can anyone give any advise on the way forward?

 

Many Thanks

Sam

[Docman]

Hi flyerx

 

looks like HSBC/DG Solicitors (their in house legal team) have started a claim against you.

 

You need to acknowledge service of the claim form. You can do this online using the instructions on the claim form (or post the document if you like). Do not admit the claim at this stage.

 

You will have up to 28 days after service of the claim form in which to file a defence with the court. Again this can be filed electtronically or just posted to Northampton. The court will then transfer the case to your local county court.

 

However, in order to prepare a defence, you need to get certain documents from HSBC. There are template letters available on CAG to ask for these from DG but which one to use depends on what is contained in the Particulars of Claim [POCs] on the front of the claim form.

 

Can you post up the claim form after removing any personal identifiers or type out exactly what HSBC have put in their POCs (but don't type up the account number if given) and also state the date of the claim?

[flyerx]

Hi Docman,

 

Thanks for your assistance.

 

The POCs are as follows:-

 

The claimants claim is for the balance outstanding under a credit card agreement dated **/**/1996 and numbered 4*************** regulated by the Consumber Credit Act 1974. The defendant has failed to make payment of the arrers of installment as required by the Satutory Default Notice served by the claimany dated **/**/09

 

And the Claimiant Claims:-

 

1 # *****.**

 

2 Interest pursuant to Section 69 of the County Court Act 1984 at a rate of 8.000% per annum from the date hereof at a daily rate of # 2.35 to the date of Judgment or sooner payment.

 

Issue Date: 31 Mar 2010

 

Many Thanks

[Docman]

Ok, you need to send a letter to DGs referring to CPR[Civil Procedure Rule] 31.14. But first, make sure you send the acknowledgement of service. A suggested draft (with due acknowledgment from surfaceagentx20) is below:

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the Northampton County Court Bulk Centre. I confirm I have returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Prior to the issue of proceedings I requested the production of the agreement mentioned in the Claim Form and on which you rely. That request was not met in that you did not supply a copy of the executed agreement.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim:

 

1 the agreement

 

2 the default notice

 

3 the termination notice

 

 

You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached I appreciate that CPR PD 7 provides for an exemption for service of such documents with the claim when using the bulk Centre procedure but that does not exempt you from disclosure under CPR 31.14 and in order to avoid an application to the Court for disclosure, I would invite you to comply with my request.

Since I have not delivered my defence and the case has not been allocated to a track, the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise.

 

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

 

Don't expect to get a response from DGs so you will have to file what is known as an 'embrassed defence' before the end of April. Have a look at other threads to see what might go into such a defence.

[flyerx]

Hi Docman,

 

Many thanks for your help, This is all a bit baffling to me!

 

So i complete the Acknowledgment of Service online using option

1. I intend to defend all of this claim

 

(This then gives me 28 days to complete by defense)

 

Then send the above letter to DG

 

Then prior to the 28 days expiring i should file the 'embrassed defence' to the courts.

 

Does that sound correct?

 

Thanks

Sam

[creditcardmug]

For clarity, if you have acknowledged the claim you have 28 days + 5 days (postage) to file your defence (from the date on the front of the claim form). i.e. 33 days total

Get it in a few days before by special delivery, do not send a copy to the other side