HSBC problem now problem with DCA too-please help

[floricita]

Hi there.

 

I have had a VERY long running dispute with HSBC bank over penalty charges applied to my account. I have letters written up in word, but I thought it best to provide an overview of the situation and then see if anyone could provide some suggestions on how to proceed.

 

1997-open standard HSBC account

1998-changes to student account as I start university-terms (as I remember them) was that each year of study it increases by £500 up to £2000, then each subsequent year after graduation it goes down £500 per year till it reaches £0.

 

2003-7 I graduate go on travels etc come back and start work. The account status is not changed to graduate or normal, but the overdraft facility is dropped by £500 to £1500 but does not decrease any further.

2007-I ask for my account to not be a student account anymore because it’s been several years since I have been a student.

2007-Start complaint about the level of penalty charges applied to account-response is that they will wait till court case is finishsed

June 2008-Receive letter from HSBC saying that they have decided after a review of the account that they wish to withdraw the whole overdraft facilty and that immediate payment or repayment plan should be made.

-July 2008-send back proposal of £25/month to pay back the debt-rejected

July 2008-Send back a counter offer with full breakdown-offering 33% of my disposable income £45/month-no response for the letter-further threatening letters of immediate repayment sent to my home + lots of phone calls.

• re-send the proposal repayment letter and income breakdown-ignored again-threatening letters continue
  

Oct 2008-without any formal agreement in place, my letters being ignored- I set up a standing order for the 33% of disposable income, which is received by them on a weekly basis. Dispite me asking for charges being frozen on the account until my previous dispute with penalty charges is resolved-they continue and the account actually increases rather than decreases.

 

Jan 2009- Threatening letters this time from debt collection agency.- I respond saying they cannot do this until the dispute is resolved.

 

This stopped the letters I received from them-but I noticed that I stoipped receiving statements from HSBC and my SO to pay off the debt was canclled by them.

 

Dec 2009 –Letter saying court case has gone in their favour

 

Was followed by letter from DCA saying the same thing and I should send my repayment proposals to them followed up by a phone call from them-they respond again saying they have nothing further to add-and I should contact HSBC if I want to take the complaint further-they confirm to me over the phone that I no longer have an account with HSBC despite never being formally told by them

 

April-HSBC respond to my letters questioning the decision- saying they are sorry I complained, but overdraft can be taken away at anytime-my previous sums offered weren’t sufficient enough- they will send a final response on my penalty charge claim soon

 

April-receive response about my penalty charge claim dispute-they said final response-if any other problems I should go to financial omburdsman-they will not pay back penalty charges and they were fairly applied

May2010- More threatening letters from the DCA saying that unless I take action they will go to court. I phone them up and tell them that the account is still in dispute, they give me a 6 week deadline to take action

 

 

To date total owed and total due back to me inclusive of interest are now the same amounts.

 

I.e. I owe them £1456, and my claim including interest equals the same.

 

Any advice would be greatly appreciated about how best to proceed and if I can continue the dispute on other grounds other than unfair penalty charges.

 

Many thanks

 

Kind regards

[floricita]

Hi guys.

 

Just wondered if anyone had any ideas on what to do about this?

 

I guess the options are

 

Start a new complaint on new grounds-but if so, what grounds and how to phrase that?

 

How to start up a new complaint i.e which method? Oburdsman, courts, DCA?

 

Do nothing and wait for them to take me to court and defend myself there.

 

Any ideas?

 

Thanks

[Castlebest]

Hiya floricita and welcome to the HSBC forum .

 

I think most people are in the same boat with HSBC at the moment, DG are telling everyone they won the test case so you should pay up now... this is total and utter rubbish.

 

Since the end of the test case they have tried this with me and I wrote back to them telling them that they are wrong so they passed my (so called) debt to two different collection agencies. I wrote to both collection agencies telling them they would have great difficulty collecting this debt as its already the subject of my own county court proceedings against HSBC... they have both given up too.

 

Have a look at my thread here... I will try to update it a bit with some of the letters I have sent but the basics are there now.

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/244669-hsbc-after-test-case.html

 

There are other things progressing at the moment and my advice is buy as much time as possible for now to let things clear.

 

pete

[floricita]

Hey thanks a lot for the reply.

 

I think one big difference with my case is that my account was in dispute but never with the courts.

 

by that I mean that I sent the LBA letters out and HSBC acknolwedged that there was a dispute-but my dispute was never gone to the county court because of re-assurances HSBC gave to me that they would settle the dispute once the court case is over.

 

Now it is over, they are doing exactly what you are saying and it seems as though they have in the meantime closed my account without telling me (according to the DCA) and stopped payments I was making out of good will to pay off the debt (when the account was closed by them)

 

DCA keep ringing me now sending letters etc and they have basically told me to find a solution in the next few weeks or else-by that they mean they will try and get some sort of court order, which is kind of scary, so not sure what to do

[rdm2006]

Hey thanks a lot for the reply.

 

I think one big difference with my case is that my account was in dispute but never with the courts.

 

by that I mean that I sent the LBA letters out and HSBC acknolwedged that there was a dispute-but my dispute was never gone to the county court because of re-assurances HSBC gave to me that they would settle the dispute once the court case is over.

 

Now it is over, they are doing exactly what you are saying and it seems as though they have in the meantime closed my account without telling me (according to the DCA) and stopped payments I was making out of good will to pay off the debt (when the account was closed by them)

 

DCA keep ringing me now sending letters etc and they have basically told me to find a solution in the next few weeks or else-by that they mean they will try and get some sort of court order, which is kind of scary, so not sure what to do

 

 

Dca's make all kinds of threats but rarely see them through it is designed to scare you (Which seems to be working but don't let them do it, be concerned but don't be scared) they have no authority to push you to deal with this it can remain in deadlock for the rest of your natural and whilst it is so OFT guidelines say they should not pursue you for a penny until it is resolved. Tell them that exaggerating their authority in this way is also against OFT regulations and you will be reporting this matter to them directly.

 

Tell them to take a long walk over a short pier.

 

The bank should not pass it on either but they do.

Edited May 24, 2010 by rdm2006

[Castlebest]

I think one big difference with my case is that my account was in dispute but never with the courts.

 

by that I mean that I sent the LBA letters out and HSBC acknowledged that there was a dispute-but my dispute was never gone to the county court because of re-assurances HSBC gave to me that they would settle the dispute once the court case is over.

 

Your account is in dispute, it doesnt matter that you chose not to issue proceedings in the county court.

Now it is over, they are doing exactly what you are saying and it seems as though they have in the meantime closed my account without telling me (according to the DCA) and stopped payments I was making out of good will to pay off the debt (when the account was closed by them)

You have demonstrated your willing to pay your debt by continuing to make payments to them, if they have stopped these thats their fault not yours.

DCA keep ringing me now sending letters etc and they have basically told me to find a solution in the next few weeks or else-by that they mean they will try and get some sort of court order.

 

They cant "get a court order" they will need to issue a writ against you which you will defend with exactly what you have posted here... you have tried to pay them back but they have closed your account and stopped the payments.

 

Once at court stage there is little difference between the claimant and the defendant, the judge just sees two parties to a dispute and will look for a sensible way out of that dispute... which wont be paying the bank everything you owe in one lump... you have tried to pay them instalments which in my opinion the judge would probably adopt as a sensible way out of the dispute.

 

pete

[floricita]

Dca's make all kinds of threats but rarely see them through it is designed to scare you (Which seems to be working but don't let them do it, be concerned but don't be scared) they have no authority to push you to deal with this it can remain in deadlock for the rest of your natural and whilst it is so OFT guidelines say they should not pursue you for a penny until it is resolved. Tell them that exaggerating their authority in this way is also against OFT regulations and you will be reporting this matter to them directly.

 

Tell them to take a long walk over a short pier.

 

The bank should not pass it on either but they do.

 

Thank you for the response. Yes you're right I shouldn't get too depressed or worried about it.

 

Just relating to one of your remarks.

 

"so OFT guidelines say they should not pursue you for a penny until it is resolved"

 

There (DCA) point was, that according to them it has been resolved because HSBC have written to me their final decision-that basically charges are fair and court case proves it.

 

Hence i'm not sure what to do now.

 

If I go to the Omburdsman on the same arguments of that of the court case, or to the county court, from what I have read it is likely to be rejected-only other reasons could result in you or I getting our money back.

 

In my case, the "new" reasons I have thought of are-

 

That the overdraft wasn't reduced on a reducing scale as agreed on contract.

 

The two parties weren't in an equal barginning position at time of signing the contract-therefore standard terms and conditions weren't properly negotiated and they have taken advantage of this.

 

They cancelled my account without notifying me-I think is a breach.

 

The amount they say I owe, is not actually money that I have borrowed from them-but it is made up of purely penalty charges and interest.

 

But i'm not sure how well any of them would stand up to scrutiny.

 

And I'm not sure if they're better courses of action to pursue rather than trying to pursue a new complaint??? Maybe just let the DCA take me to court and I defend it there?

[floricita]

Your account is in dispute, it doesnt matter that you chose not to issue proceedings in the county court.

 

You have demonstrated your willing to pay your debt by continuing to make payments to them, if they have stopped these thats their fault not yours.

 

 

They cant "get a court order" they will need to issue a writ against you which you will defend with exactly what you have posted here... you have tried to pay them back but they have closed your account and stopped the payments.

 

Once at court stage there is little difference between the claimant and the defendant, the judge just sees two parties to a dispute and will look for a sensible way out of that dispute... which wont be paying the bank everything you owe in one lump... you have tried to pay them instalments which in my opinion the judge would probably adopt as a sensible way out of the dispute.

 

pete

 

Thanks Pete.

 

I kind of take from that, just do nothing with regards to the DCA, just reply nicely each time and wait until/if they do, take me to court?

 

Just one question. If they do go to court to try and get an attachment to earnings, is the judge just assessing that or would he also try and solve how best to solve the whole dispute?

[rdm2006]

the dca will only put in what they want, you will need to make a counter claim for the unfair charges (was it fair that they lied to you, had you known the truth you could have operated your account through another bank or a credit union (who's charges are really to cover admin costs if they make any).

 

They have told you that the charges were "admin costs" but they have now revealed that they are a subsidy for Free if in Credit banking. Now I don't know about you but I do not mind them covering admin charges, don't even mind if they charge a small percentage on top to make a profit (say 10% of the actual cost). But I do object to them ripping me off to keep some wealthy fat cat in free banking.

Edited May 27, 2010 by rdm2006

[floricita]

Thanks.

 

How does a counter claim work exactly?

 

I agree with everything you say there. I guess what I'm asking now, is in the immediate term, what to do?

 

Is it worth going to the omburdsman? Writing another letter of complaint? Or to let events play out as the DCA seek then do the counter claim thing?

 

Any personaly opinions woud be greatly appreciated,

[floricita]

Hi there.

 

I have some updates for this case and I would really appreciate your opinions on how to best to proceed on this because it is getting quite worrying now.

 

The letter title “Final demand”

 

“You have failed to make payment as requested and we therefore have no alternative but to take further action against you.

 

This may involve: Debt collectors who may call at your door or

DG solicitors issuing legal proceedings which may result in

 

A county court judgement being registered against you

A county bailiff visiting your home and taking goods

An attachment of earnings order which may result in your current or future employer being ordered to deduct payments from your salary

 

If legal action is taken, it will result in legal fees and costs of £193.00 being added to your outstanding balance.

 

You can prevent this by paying the full outstanding balance within the next 24 hours using the bank giro slip below.

 

An opportunity to pay by instalments may still be available to you but you must call us immediately to discuss this further”

 

 

So this looks quite worrying now.

 

I was just wondering your opinions on how to best proceed (bearing in mind what has been discussed earlier).

 

I don’t have the money to pay them in full in the next 5 hours left of the day! Should I let them take me to court and fight them there? Should I go to the omburdsman? Do I have to submit a seperate counter claim agsint them? Should I negotiate a payment plan and pay as best as I can?

 

 

I also don’t think it’s correct that I should at this point in time pay them anything in instalments either. I still think I have a case against them which amounts to the same value as what they are asking for. Sorry I’m not sure of the correct legal terms for this, perhaps it is a counter claim.

 

I’m not sure if anyone with a bit more experience can share their opinion on whether or not they think in their personal opinion that I might have a case at all barring in mind what has already been said.

 

About the letter I’m not also sure that everything is true.

 

They seem very uncertain as to how they will proceed and it seems to me that they have just listed all the possibilities to scare me. I believe that they know how this will actually proceed.

 

They also fail to mention the possibility on the list of many scary possibilities that I might go to court and win ad that they may have to pay me money!!

 

I’m also not sure that they can automatically charge my old account for any legal fees. Personally I would have thought that they take me to court pay for the fees themselves, then whoever loses has to pay the fees by a payment method of their choosing (and I believe that the loser sometimes doesn’t always pay them as well).

 

I also think that the 24 hour deadline is unreasonable time frame for a final demand letter. I thought there were set time procedures for these types of things?

[johnnymitch]

I wouldn't worry too much floricita, they're sending these letters out like confetti at the moment , trying to scare people into action .....

 

You'll notice the letter is full of "we mays" not "we wills " ......these are just frighteners ......if they took you to court and you counter-claimed they'd be in some trouble I reckon ....

 

Also , unless they've got a court order they can't come calling uninvited ,and they can't get a court order unless they take you to court ........catch 22 ! so if they do turn up uninvited, refuse them entry and if necessary call the police to have them removed .....there is a good letter around somewhere to tell them all this (which they already know ) .

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/186927-unwanted-callers.html#post2011044

 

Try this one ...............

[floricita]

Thanks Johnny.

 

I really appreciate your input.

 

But what should be the next course of action? I'd rather do somethin than wait for them to do soomething.

 

And I was also wondering whether if it does go to court whether there is a case to defend now that the supreme court has ruled against the OFT?(given the info I have provided). If its a lost case then maybe it would be better to try and arrange something with them?

 

SHould I also request the CCA request or CSR request at this point in time?

 

any help would be greatly appreciated, this stuff really gets me quite worried

Edited July 3, 2010 by floricita
additional info

[Rayne]

The letter to halt the possibility of doorstep visits is http://www.consumerforums.com/resources/templates-library/86-debt-collectors/590-letter-used-when-a-dca-threatens-a-doorstep-visit-.html

 

Hope that helps.

[floricita]

Thanks Rayne, that might come in useful.

 

I'm at the momemt slightly more concerned as to what to do next exactly following their last letter and just to gain a better understanding of where I stand legally with regards to this dispute (info posted above)

[Rayne]

Ahhhhhhh THOSE letters, the "threatograms" punched out by the computer aided "threat monkeys" Love these. I'm in no way suggesting you follow suit at this point, but what I usually do with those letters is place them into "File 13".

 

A DCA, in the main, will try to bully you at every single opportunity it has to get you to pay. They will threaten to take you to court, they will threaten to reposses your house and wife (YAY), they'll threaten to strip your house bare, they'll even threaten to take away your brother's pet chimpanzee's sister's uncle's nephew's copy of Hamlet that he wrote.

 

But until they actually take you to court they can do absolutely nothing. They're not even allowed to knock on your door without an appointment, although they usually need reminding of that fact (see above letter.)

 

Before then they're as much use as a wet fart in a spacesuit. At this point ur probably asking, "so when will they take me to court?". It would be foolhardy of me say "never". All I will say is that I don't know of ANYONE who has actually been taken to court by a DCA. Doesn't mean nobody has ever been taken to court buy one, it just means that I personally don't know of anyone.

 

Why do I go along these lines? Because, strictly speaking the burden of proof is on THEM. THEY have to prove you owe that debt. I'm not advocating avoidence of owed debt by any means and in any way shape or form, I mean if the debt IS owed then it is a matter of individual conscience. HOWEVER, if you feel this particular debt is not owed, and as the account is in dispute ANYWAY, I'd be asking at this point why they're even chasing it and to immediately cease and desist.

 

This made sense when I first wrote it, not so sure now....anyone?

 

Out of curiosity, which DCA is it?

Edited July 4, 2010 by Rayne

[floricita]

Hi there mate. Thanks very much for the repsonse.

 

I actually got some similar comments on another forum when I asked similar questions.

 

And there is a question mark as tyo whether Metropolitan are actually a real DCA or just the collections dept for HSBC.

 

I think you are right with the burden of proof.

 

One very important question I have is this and some help would be appreciated.

 

the outstanding debt is £1403 (approx)

 

tghe amount I am disputing with them + interest equals the exact same amount.

 

HOWEVER, the amount owed to themn doesn't consist entirely of these charges, because most of the charges I have already paid. So in this case would they have to prove anything regarding the charges and their legitimacy? Or could they just say that is a seperate issue and nothing to do with this money owed because the money owed doesn't directly relate to the disputed amount-although you could take it as across the life cycle of the account in which case it would amount or help amount to the amount now owed.

 

sorry, may not have written that very clearly but I hope someone can get the gyst.

 

Another point to make is that HSBC sent me a final response to my complaint and have earlier declared the dispute to be closed.

Edited July 5, 2010 by floricita
mistake

[floricita]

Any ideas on the above guys?

 

This stuff really gets me nervous and just want to know where I stand with them. Apologies If I come across as impatient-petrified is more the word

[Rayne]

The dispute is open as long as u deem it to be open imo When u say "most of the charges i have already paid" do u mean u have paid their extortinate charge or was it a typo and u meant they had refunded the charges u claimed? need to be clear on that one

whether or not it's a separate issue is honestly besides the point. the account is in dispute, end of tbh.

 

and yes metropolitan are their sneaky in house collectors who like to rise above the sewer into the mire of the gutter and call themselves a dca

[floricita]

Hi there, thanks for the reply.

 

Regarding the charges what I mean is that the amount levied against my account in the past 6 years + interest equates to £1400. The amount now owed on the account is just over £1400.

 

My comment and quiery really was:

 

The charges that were applied to the account which I am disputing and have not recieved any payment for, have in time been paid by me, hence why I have tried to claim them back.

 

the total as it stands at £1400 and odd pounds, if a judge were to look at it, would be made up of things like bills purchases etc and only some of the disputed charges because they have been previously paid.

 

so I guess what i'm questioning is that if it does go to court, can it still be argued that the amount they want is made up of disputed charges therefore they would have to prove that these charges were fair etc?

 

Or will the judge look at it and say the amount was made up of purchases and payments and nothing to do with disputed charges and treat that as a seperate ssue that has nothing to do with it (because these were previously paid on earlier statements)?

 

Not sure if i have explained that very well

[johnnymitch]

If you highlight the charges floricita , a judge would have to take account of them .... ignoring the normal everyday expenditure stuff .... which is not in dispute ...... these charges are what put your account over the top , and they'd have to justify them ........

[Rayne]

Beat me lol. However don't make your arguement so that it's unfair under the UTCCR's as that was the "backbone" of the failed test case. You would have to try a different route, which has yet to be established

[floricita]

Hi there, thanks for the replies.

 

I must add that it wasn't unfair banl charges that put the account over.

 

They just decided one day after a review that they don't want me to have an overdraft facility anymore (because over time it had on occasion gone over).

 

so the reason why it went over isn't because of charges and trhe amount owed isn't made up of that much charges, but total charges applied to the account equals the same as what they are asking for, and this amount is what I have been disputing.

[johnnymitch]

Seems to me that 'on occasions you had gone over' as you say , which was exacerbated by the charges being applied ........ then ,having put you over , they draw the rug from under you by withdrawing the overdraft facility ...... I think that would be my argument .........

[floricita]

Thanks Johnny for your input again, its appreciated.

 

I have thought long and hard about what to do and I sense that they will escalate this very soon, so I want to get my response off tomorrow.

 

I'm not a legal buff at all and it would be appreciated if people on here would give thier own personal opinion about my proposed course of action.

 

1. Send a letter to the DCA. And firstly ask them to provide a statement of what the amount owed is actually for. Basically, I have tried to work out how much of the current is made up of charges and it's difficult to do so because its all cumulative and its difficult to work out with so many transactions what gets paid off first with the money coming in.

 

I hope to achieve from this a list of how much of it is charges. I estimate that if i include interest, of the current debt approximately 30% would be made up of this perhaps more. If this is the case, then I, if they do take me to court will submit a counter claim (I think its called) for this amount or state on the court order that i dispute this amount.

 

I believe although i'm not sure, that this will mean that they will have to justify in court the charges which I believe that no bank to date has wanted to do-how can they justify £150 for one charge in my case for example.

 

2. In the letter I will also ask them for the original contract and t&cs that was signed for the agreement. I have asked HSBC for this and was sent a standard one for 2008, my account and overdraft was opened in 1998 so I think it would vary significantly, or to some degree.

 

I believe that if they do not send me this (and I could be wrong) they will find it very difficult to win in court, because this is the essence of the agreement itself-so without it I don't see how they can have a case-because they are saying that I should pay back this amount because I broke the agreement, but if no agreement exists or they don't want to provide it, then how can I have broken it?

 

I will then say I will only consider the matter and subsequent actions when these documents are provided.

 

3. I will send my dispute to the FOS. I don't expect much success here from what I have heard. But from this I seek to achieve some delay-some people I know it has taken them 1.5 years to resolve the case-and courts look favourably on people who try to resolve the dispute without it going to court so I have heard that they would likely have the case stayed until the FOS decision has been made.

 

I also have heard that a FOS investigation costs HSBC a few hundred pounds which is a significant % of the total owed, so hopefully it might put them off slightly or at the very least they know that I am serious about defending myself.If that fails apparently their is a national omburdsman who can take up the case.

 

4. Finally, I have been told that every bank as their own omburdsman although that is not very well know, and its quite difficult to get correspondance through to them. But I will send a letter of dispute to them and say that I would like the charges to be offset against the total amount and I would be happy to pay the rest. I have been told that they tend to want to get cases resolved as oppossed to collections.

 

sorry for the long post, but I would really appreciate some feedback on the points that I propose before I send it off at some point tomorrow.

 

Thanks.