HSBC Unsecured Loan, Ignoring CCA Request

[sunray001]

What about asking for it via a CPR request.

 

regards

[diddydicky]

This is apparently inspired by the recent mcguffic case. I actually have predicted after reading the judgment that now banks will simply refuse to provide agreements when they do not have bulletproof ones. This gives them perfect excuse (I am not saying that it is a lawful excuse) to continue with 'noneforcement' actions such as demanding repayments, issuing DN, reporting defaults to CRA's and so on.

 

I did not expect them to catch up on it so quickly, though.

 

The only thing you can do now is to hit them with S.A.R which among other things specifically requests Credit Agreement but this time not a 'true' or reconstructed copy but the executed original with your and their signatures.

 

i'm sorry but a SAR does NOT obliuge the creditor to supply a copy of the agreement true or otherwise

 

it is ONLY obliged to provide details of the INFORMATION it holds about you,

 

the only information it holds about you on a credit agreement , is your name address account number.

 

the rest of the credit agreement is likely to be their intellectual property

 

even then the information they hold about you does not have to be presented to you in its original form

 

sorry to be the bearer of bad news

 

the only way to get the agreement is via 31.16 and even then they will obfuscate and insist on "valid reasons" why you want it- leaving you only with the option of taking legal action against them to provide it

[Gallahad]

subbing

[Kish4000]

Hi All

 

As far as i can gather from the above, HSBC not having the actual executed agreement (or in some cases denying they have it) makes it hard for them to go to court and enforce it as they would look a little silly. But this does not stop them putting default notices on you credit file and chasing you for payment of the same?

 

could they still take you to court with what they send you though? e.g would a CCJ be granted in your opinion? thanks

[Readalot]

CCJ would be granted if one does not show up and defend.

[Kish4000]

Ok but if you went to court proving you tried to get a copy of the Cred Agreement becuase you believed it to be inproperly executed and they did not provide it etc along with all the harressment from them, the court could rule in your favour?

[Readalot]

There is always a judge lottery. Therefore nothing is certain. However, I imagine it would be simply insane for HSBC to not settle/write off the account if the do not have a proper CCA.

 

Should they pull a magic trick in the last second and come up with a proper CCA before hearing, you would have a chance to amend your defense and offer a payment plan which you can afford. You would also have a strong argument that while they were in default they were not entitled to charge interest, penalties and other fees.

[diddydicky]

Hi All

 

As far as i can gather from the above, HSBC not having the actual executed agreement (or in some cases denying they have it) makes it hard for them to go to court and enforce it as they would look a little silly. But this does not stop them putting default notices on you credit file and chasing you for payment of the same?

 

could they still take you to court with what they send you though? e.g would a CCJ be granted in your opinion? thanks

 

they could take you to court with anything, a copy of the beano for example- and sometimes they do, if they think the customer is not legally savvy- whether it will get them anywhere is a totally different matter

[diddydicky]

Ok but if you went to court proving you tried to get a copy of the Cred Agreement becuase you believed it to be inproperly executed and they did not provide it etc along with all the harressment from them, the court could rule in your favour?

 

the court may or may not "rule in your favour" depending on what the evidence is- however what your pre court actions WILL do is drastically reduce their chances of costs if you can show that you made every effort to obtain documents/resolve the matter without the need for the court process

[diddydicky]

your FIRST action, if they take you to court is to take control of the action by issuing a CPR 31.14 for them to provide copies of the documents in their POC and which they will rely upon in court- this will usually be the agreement the DN TN and details of how the figure claimed was arrived at

 

You cannot complete your defence until you have these documents. so you submit an embarrassed defence (a holding defence)

 

if they don't do that within 7 days , then allow them another 7 for good measure, then you can apply to the court to force them to produce these documents

 

if they don't- then you can apply for the case to be struck out

[johnnymitch]

IMHO they know that if they can't produce the documents - they can't take you to court .. but they will try to take you to the wire to get you to give in ....... the percentage of cases where that works for them must make it worthwhile .... but if you hold out, it has been my experience that they will back off before it ever goes to court.

 

Oh , they will huff and puff and threaten - but don't you think if they had a case they'd take it to court ...... 'no CCA .... no case !'

[Kish4000]

Sweeeeet - the letters in the post to them now and ill open a new thread for each one

 

thanks for all of your help

[johnnymitch]

Well done Kish ... keep us posted on progress please .... it'll help others along the way ...

[lucky13]

Hi again,

 

Just had a letter today that signified bad news but in a roundabout way, good news too.

 

This is what I received:

 

I am writing to advise you that we have credited the above account on 4 November 2009 with the following:

 

Amount: £319.38

 

Details: Transferred funds from your bank account to make 1.75% missed payment on your personal loan account.

 

 

There is a bit of blurb after that which I will spare you as it is the usual thanks and goodbye stuff.

 

Obviously this is bad news because as far as I was aware, my bank account with them had closed when I switched to a different banks current account. Obviously not, and to boot, I see this as they have stolen £319 and that the 1.75% doesn't work out to be a percentage of missed payment or the original balance in the slightest!

 

I suppose you are wondering why that could be good even in a roundabout way? I had a surprise payment into my account from a well overpaid bill and I've been left with a few pounds to see me through to payday! (No more vicious cycle of payday loans!)

 

Although I can't help but to be peeved that they have taken what would have been a nice lump for Christmas so that I can focus my attention on a positive balance and not worry about buying gifts.

 

Anyone know how/why this has been done? I'm guessing that money is never coming back to me?

 

Thanks again

[diddydicky]

Hi again,

 

Just had a letter today that signified bad news but in a roundabout way, good news too.

 

This is what I received:

 

I am writing to advise you that we have credited the above account on 4 November 2009 with the following:

 

Amount: £319.38

 

Details: Transferred funds from your bank account to make 1.75% missed payment on your personal loan account.

 

 

There is a bit of blurb after that which I will spare you as it is the usual thanks and goodbye stuff.

 

Obviously this is bad news because as far as I was aware, my bank account with them had closed when I switched to a different banks current account. Obviously not, and to boot, I see this as they have stolen £319 and that the 1.75% doesn't work out to be a percentage of missed payment or the original balance in the slightest!

 

I suppose you are wondering why that could be good even in a roundabout way? I had a surprise payment into my account from a well overpaid bill and I've been left with a few pounds to see me through to payday! (No more vicious cycle of payday loans!)

 

Although I can't help but to be peeved that they have taken what would have been a nice lump for Christmas so that I can focus my attention on a positive balance and not worry about buying gifts.

 

Anyone know how/why this has been done? I'm guessing that money is never coming back to me?

 

Thanks again

 

your account will feature a right of "ofset" that is to say they can take funds from one account)that is in credit) to pay the other

 

lesson learned!!

[ricky4]

Hello all!!

 

I recently requested my origional loan contract from HSBC and on the phone I was told no problem it will be with you in a couple of days.

Instead I recieved a ready approved loan to the sum of £11'500 which they wanted me to sign and send back(this was all with out me applying for one and without any questions)

I of course rang them and was fobbed off but aventually told that they dont have a copy and that I need to go into my local branch to get it(Im starting to think there isnt one or that they dont want me to have it! why would one person say they have it and then another one say different?)

 

Does anyone know for definate leagally where i stand if there is no origional contract???

 

Thanks!!!

Edited November 11, 2009 by ricky4

[johnnymitch]

Hi Ricky 4 , welcome to the forum ..

 

First of all you need to be certain that they haven't got /can't produce a copy of the original agreement .

 

To do that you should send a CCA Request letter (see the link here ):

 

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/581-cca-request-letter

 

It costs £1 .00 and they are required to produce a copy of your agreement within 12 + 2 days ..... (make sure you send it Special Recorded Delivery ,so you can trace it's progress and receipt.)

 

If they're running true to form they will duck & dive and try to put you off . .... but stick with it , come back and ask on here if you need any help . someone will answer, and we're user -friendly on here

 

A good example is in lee32uk's thread(link below ) .... it's a bit lengthy , but shows what you could be up against ... the main theme is .... don't give in .......

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/188794-hsbc-cca-non-compliance.html

[diddydicky]

and keep the letter offering you further finance(and the envelope it came in)

[ricky4]

Thank you both for your replies I will do just that!

 

It makes me question if they were trying to get my signature against another loan because the other one is not AOK!??

[lucky13]

Hi everyone,

 

Just an update on this thread, as I plan on keeping it updated until this is sorted!

 

It has been months since I have had any correspondence from HSBC, not even bugging me to make a payment.

 

A couple of times, I had unexpected money turn up in my account (bill refunds) and they took the majority and sent me a letter saying that. As I've said before, I use a different current account for my wages and bills, so this one just stays empty.

 

As it had been so long, I got curious and checked my credit report. They have logged missed repayments with Experian, so it has messed up my credit.

 

Is there any way to get this off my report seeing as though it is in dispute? They still haven't admitted they are in the wrong, but anyone who has followed this thread knows that they are clearly in the wrong with having no paperwork whatsoever, nor a copy of my signature.

 

Does anyone know what my next step should be? I would love to get this sorted for good now.

 

All the other bills I were overdue on have been sorted due to the really understanding nature of the companies, just the complete opposite to HSBC!

 

Thanks again so much to everyone who has helped

[johnnymitch]

Hi Lucky 13

 

Is there any way to get this off my report seeing as though it is in dispute? They still haven't admitted they are in the wrong, but anyone who has followed this thread knows that they are clearly in the wrong with having no paperwork whatsoever, nor a copy of my signature.

 

Does anyone know what my next step should be? I would love to get this sorted for good now.

 

Trouble is , it's really difficult to get a default removed once it's on there .... it has been done , but not often , because the CRA's just accept the banks default notification without checking the veracity of it ..... and of course the banks won't admit they're wrong..

 

However , they are supposed to issue you with an official Default Notice before implementing it .... so if you can prove they didn't (which again is difficult because they say they don't keep copies ) .

 

Have a look at this link of 42 man , it may help you decide which way to go ..... it migh even have to b e to court ,.... that may be the only way you'll get them to withdraw the Default ..

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/204565-pipster-hsbc-2.html#post2249269

 

or some of the Template letters on here may help :

 

The Consumer Forums - Challenge a default on a disputed account

 

come back if you need more info lucky 13,

[lucky13]

Thanks Johnny

 

On Credit Expert, there is the option of telling them that a default or account is wrong in some way. If I were to tell them that the account is in dispute and the defaults are unlawful, is there any chance they could be removed?

 

The only other thing I can think of is a complaint to the FOS, as I know HSBC will just re-send a letter that I already have!

 

I've heard of so many accounts like mine being written off, as there is no paperwork whatsoever, no record of my signature on anything, and from what I've been told, they have no chance at all of winning a court case.

 

Just wish it would happen to mine! Apart from the dispute, I have been interested to know the figures for the account anyway as it seems like the balance is too high. They can't provide me with anything other than an Indian gentleman telling me to "pay now, ok?".

[johnnymitch]

Hi lucky 13 .... there is a process called 'Declaratory Relief' which makes the whole thing dead in the water.... but I'm not too sure of the procedure for invoking it .... it may mean going to court ......

 

Maybe someone else can explain it better than I can ...

[lucky13]

Thanks again Johnny

 

I looked into the Declaratory Relief, but I think it sounds a bit advanced for me and indeed does require a Judge to issue it.

 

I have been reading around and found that they should have sent a signed notice that they were putting this data on my credit file, but I haven't received a single thing from them regarding this, other than stating that they may do this in the letter on post #16.

 

Surely it has to be an official document they send before it is applied?

 

I really don't have a clue what to do next and I'm getting really worried that I will have this on my file for the next 6 years!

 

Do I report them to the OFT, FOS or other agency? Do I make a reduced offer of payment over so many months? I'm sorry to be a pain, I'm just lost at this point!

[johnnymitch]

This link may help you to decide Lucky13,

 

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/179944-default-notice-period-7-a.html

 

 

but basically if they don't send you a Default Notice which says :

 

 

DEFAULT NOTICE in blooming great letters then they can't justify trying to default you ...... there are other rules to be adhered to as well .....

 

Quote:

88. Contents and effect of default notice.

— (1) The default notice must be in the prescribed form and specify— (a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

(2) A date specified under subsection (1) must not be less than [F1 14] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [F1 14] days have elapsed.

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the [F1 14] days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it [F2 and any other prescribed matters relating to the agreement].

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid ............

Footnote: by alanalana (from the PPI forum ) commenting on another iffy DN :

You should be given 14 clear days from receipt of the DN in which to remedy any alleged default. In this case you have clearly not been given the 14 clear days so the Default Notice under section 87(1) cannot apply and surely will not stand up in Court IMO.

If they proceeded to Court and you presented this documentary evidence the Judge would no doubt strike out the action against you.