HSBC problem now problem with DCA too-please help

[car2403]

Hmmm....so in essense, that would rule out the argument that the debt is unenforcable because of compliance with CCA/determination proceedures?

 

Yes, but if they do, why not disclose and have done with it - this makes me think they were 'lucky' to find mine. I have seen others who have never received their own.

[floricita]

Hi there.

 

Its been a few weeks or so and I thought I would give you a quick update on where I am.

 

I basically wrote back a letter to HSBC trying to get them to answer my questions which I have posted here previously. when they reply, they either deliberately or not deliberately, avoid answering the question, or give an answer to the wrong question-which is a bit frustrating. So that has been going back and forth

 

The DGs seem a very strange bunch as well.

 

Basically they have been phoning me up and writing to me basically saying I have to pay the full amount or else. I wrote back saying that the account is in dispute so basically you cannot try and recover the monies at this point in time- this halted them for 2 weeks, but now they have continued and sent me a letter saying that after sept 10th they will resume recovery proceedings because HSBC have told them that they have nothing more to add and the dispute is over.

 

So not sure what I should do at this point in time?

 

I have in the past had quite a bit of experience liasing with lawyers and sols in my previous job and I have to say that this one seems to differ greatly.

 

All the people I have spoken too seem extremely rude, not like a normal law firm, they are really off hand and have hung up on me twice when they have phoned me. This coupled with the fact that in their l;atest letterr to me and others and their conversations with me on the phone-they just seem to ask for money all the time-it seems to me like they could be more of a collections company than a proper law firm just by how they are on the phone and letters. Not sure if anyone else has had any experience with them, but they are very different from any other I have spoken to in a professional capacity in my life.

 

Anyway, thought I would let you guys know where I am on this and of course all advice is seriously appreciated.

[king123]

Thanks for all this info. I've had the same default notice today - looks like I need to take it somewhat seriously.

 

I suspect DG are in house or some low life "solicitors" and the people you have been talking to are just your usual DCA muppets. Not all law firms are created equal.

[johnnymitch]

Hi Floricita ,

 

Thanks for the update . I would write back to DG , acknowledge their letter , confirm this account is still in dispute , and that you will now inform FOS of HSBC's statement that this is their 'Final Decision'.

 

Tell them that you will only deal with them in writing, in case of any subsequent court action ...... and that they should suspend attempts at collection until FOS has made their Decision ...........

 

They probably won't , but then that's DG for you ..... you've sussed them out well .....a disreputable shower of incompetents ......

Then forward your complaint to FOS(giving them copies of all letters etc. to strengthen your complaint ) and prepare to wait a while ...... thing is , while it's with FOS it's still in dispute (and it costs HSBC £450, whatever the outcome ! )

 

http://www.financial-ombudsman.org.uk/

 

Once you've got a FOS Case No. you can just keep quoting it at whoever is pestering you ...... they can't do anything until FOS make their decision.

[Old Cogger]

Thanks for all this info. I've had the same default notice today - looks like I need to take it somewhat seriously.

 

I suspect DG are in house or some low life "solicitors" and the people you have been talking to are just your usual DCA muppets. Not all law firms are created equal.

 

DG in house office (HSBC), they think they are the law, and the law is unto themselves, probably a table opposite MCS or next door, they will try and fudge FOS keep an eye on all correspondence and envelopes. They even sent a letter telling me they had a CCJ against me which was not true , they could not get their paperwork right it seems, the case was eventually stayed by local court, (nobody told me though about it being stayed, found out from enquiry from court), one day I hope to get the ball rolling and with knowledge from sites to CCA etc them. So watch them carefully???????? Are they still sending out 7 day DNs?

[floricita]

Thanks for the advice and support.

 

Have sent the letter to them already, although they said they would resume action today!

 

Going to do the FOS thing next week after my exam, but the proceedure looks a little complicated, might need some advice there. I mean do I have to just send them everything? And copies only? And just a list of the complaints?

 

I guess I should send off the CPR letter also which I have delayed until now. Would I send that to the DGs or to HSBC?

[floricita]

It says on the FOS form "have you recieved a final response letter, if so please send us the last letter they have sent you"

 

I have had a "final response letter, but they have since ressponded to others. So do I send the final response letter, or the last letter, or both?

 

It also says at the beginning, please state the name of the business you wish to complain about, if I want to complain about HSBC and their DCAs and DGs can I do that all on one form or not?

 

any help would be great thanks.

[floricita]

One more thing also. currently writing the CPR. Was wondering do I send it to DG or HSBC?

 

Can I make amendments to the CPR request and request other info too or is it limited?

 

I have this template for one, but some info isn't that relevant, and some is which isn't in.

 

Dear Sir/Madam,

 

Account details and number:

 

Thank you or your letter dated .............., in which you have indicated that there is an imminent court action should I not respond to your letter.

 

In your letter you have given notice that ....................are preparing to initiate legal proceedings over the non-payment of the outstanding balance claimed to be due on the above account.

 

Given that this matter is now subject to potential legal proceedings, you are obliged to provide (under the Civil Procedures Rules) information to ensure that all parties are on an equal footing, and also to ensure that the claim is dealt with expediently and fairly, avoiding an unnecessary burden to the court's resources.

 

Under the Pre-action Practice Directions - Protocols 4.6 of the Civil Procedures Rules - I request that you supply copies of the following documents:

 

1) A true copy of the 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. Please note that a "true copy" as defined by the Consumer Credit Act will not be acceptable in this case, and a copy of the actual executed agreement, including signature, is required.

 

2) All records you hold on me relevant to this case, including but not limited to, the following.

 

1. A transcript of all transactions, including charges, fees, interest, payments and both the amounts of credit and any repayments made to the account.

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations

3. Where there has been any event in the account history over this period that has required manual intervention by any person, disclosure of any indication or notes that have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to the account held by me with .................................................. is required.

4. True copies of any notice of assignment and/or default notice or enforcement notice that you sent to 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 charge 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.

 

This information is required within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to deny me the opportunity to review my position in relation to your claim of alleged breach of agreement and any possible counter-claim.

 

Please note that, as you have initiated this action, failure to respond to this letter will place this account in clear dispute and as such you may not:

 

o demand any payment on the account, nor am I obliged to offer any payment to you;

o add any further interest or charges to the account;

o pass/sell the account or outstanding balance to any third party;

o register any information in respect of the account with any of the credit reference agencies; or

o issue a default notice related to the account.

 

Should you ignore any of the above I reserve the right for legal action for redress, and will show the court this letter. I will also report your actions to any authority that I see fit and will request that your suitability to hold a consumer credit licence be reviewed.

 

I look forward to hearing from you in due course.

 

 

Yours faithfully,

 

[floricita]

Any ideas on this guys??

[floricita]

Ok got to send this off today.

 

I've decided to send a CPR letter to both DG and HSBC. Is this correct anyone know?

 

cheers

[car2403]

The bit about the agreement is probably fine, it's up to them to state they don't need to comply with those requirements and to show that they comply with the OFT's Determination on Overdrafts in stead.

[floricita]

Thanks mate.I have sent this off now.

 

However I did when I got home on friday recieve a letter from HSBC in response to my previous letter.

 

My previous letter basically asked them to to provide the orginal contract, T&Cs and facilities letter, provide documentation that they had closed the overdraft and the account properly and why the account was not reduced on a reducing scale as agreed upon sale.

 

the letter I got didn't address all these problems, and it seems from their letter that no contract exists and that no proceedure was really followed in regards to closing the actual account.

However I don't know the proper proceedures that should be followed with regards to closing the account, but i'm sure its not how they have done it.

 

Would appreciate any comments from people about the letter and any implications it has.

 

Some of the things it states are not even true I should point out before I post it.

 

1.The overdraft facility was not withdrawn after the dec 18th letter. It was withdrawn in June. (and even then I'm not sure they followed correct proceedures with that!

 

2. It was not passed to Metropolitan first in Jan-it first went to a different DCA, It was passed to metropolitan much later (not sure why they switched dcas)

 

3. T&cs at point of sale were never supplied at any time (not during SARS requests or now) ones provided with the letter are current ones(so not availible at anytime as stated by them)

 

4. They did not give me any time to recitfy the account. they gave me 28 days from June, it was only when I put the account in dispute that theybacked off. even though they still added charges and interest for a few months whilst it was in dispute (something I forgot to mention in the letter)

 

5.the systems letter was the only one I ever recieved which even mentions the possibilty of closing my account, and even then when you read it, it seems to imply that it is the overdraft that will be taken away not the account-pretty sure an account shouldn't be closed using these methods.

 

And secondly I apologise for typing errors my keyboard is not working properly, so please bare with me.

 

"

"I am sorry that you remain dissastified with the banks earlier response. Our letter of the 4th September 2010 fully addressed the issues you raised. However, in view of your comments I have reviewed the circumstances further and thereis little I can positivelyadd to what has alareadybenn addressed. Our position has not changed since our previoouis letter and the outsatanding amount owed will remain with Metropolitan collections servoces.

 

In your recent letter you request a copy of the contract, if this is in regards to the repayment contract, no such written contract was made, this however was a verbal contract between the bank and yourself to repay the amount outstanding.

 

If you are referring to a contract regarding the terms and conditions of the opening of your account, again by opening of the account you accepted the terms and conditions of the account and these were availiable to you for your records anytime, I have enclosed a a copy of the general terms and conditons for your records (note these are current that they sent)

 

We were unable to agree to the repayment plan you offered and advised you that the repayment plan you offered was not sufficient and we required a suitable amount of repayment to agree a formal repayment plan.As this was not achieved our normal collection proceedures continued.

 

On 18th December we issued you with a demand letter advising you to recify your overdrawn balance within28days or further action will be taken.I have enclosed a system copy of this letter for your records.

 

As your account was not rectified, the overdraft facility was removed, your account was closed and the outstanding amount passed to Metroploitan servioces on 16th Jan 2009 as per our proceedures and what we advised you in the letters.

 

As previously stated the bank reserves the right toclose your account andorwithdraw any facility you hold at anytime if the terms and conditions of your account are broken. therefore we had f ollowedour correct proceedureand gave you sufficient time to recify your account before any furtheraction was taken.

 

as addressed in previous correspondence to you, no refund of correctly applied charges will be given to you and your account will remain to be repaid with Met DCA.

 

Advise contact FOS any further questions contact senior service quality manager.

 

The system letter they refer to

 

"~We have recently advised you of our concerns regarding the position on your account and have asked you to take action to rectify the situation or to contact us to discuss what can be done.I would urge you to take either course of action immediately as a failure to respond to this letter may have serious consequences.

 

the withdrawal of your banking facilities this would mean that

 

any overdraft facility would be cancelled and you would have to return credit debit cards and cheque book.

 

 

the enforcement of any security given either by your or third party

the passing of your details to a CRA this may adversely affect your ability to gain credit

 

we are giving you a further 28 days from the date of this letter in which to contact us and agree repayment terms satisfactory to us. We nevertheless reserve the right to make demand if we think it necessary."

[floricita]

Any advice or comments guys on the letter recieved??

[floricita]

Bump-just wondering if somebody could read the letter please and try and relay the points back to my case if possible?

[car2403]

This is all standard process - what they did, plus their reply:

 

You applied for an overdraft, or they granted one and you used it. The T&C's the agreement was on should have been provided at the time (or shortly after) it was provided. If they weren't, they haven't complied with the OFT's Determination, plus, not having a fully enforceable agreement, (they've admitted there isn't one - we knew there wouldn't be!) the debt is unenforceable.

 

They've followed the process for terminating the agreement - or, at least, that is their argument. If they didn't comply with the Determination, there is no "agreement", to speak of, so them following the process they think they should have followed is irrelevant. Enforceable debt, first - correctly terminated comes second. Without one, there can't be the other! With me?

 

They will NEVER accept that this is right by sending them letters - what you're getting are standardised replies, as they won't admit they are in the wrong.

 

I haven't read the whole thread, but I see you're still playing letter ping-pong with them, so, it's either, you move on and forget about this and repay the debt at a reasonably affordable rate, or you sue them for non-compliance with their requirements under the CCA. Tough call. (I would never recommend going to one of the toothless regulators, as we don't have years to wait for a decision!)

 

Oh, it would be easier on you for them to sue you, as you have a complete defence to their claims. If you take them to Court, (as has been done in the past) there's a good chance the Judge will see it their way anyway, enforce the debt and leave you to appeal the life out of it. (Facing, potentially, another Judge cut from the same cloth) Oh, he'll probably slam you for costs, along the way too.

 

I don't have much in the way of good news for you, really I'll get me coat...

[floricita]

Thanks mate.

 

Well it looks increasingly likely that they will in the end take me to courtas I will not pay them until these issues are ironed out, and like you say it is unlikely that they will be ironed out without the courts.

 

I also forgot to mention (I think) that they added charges and interest whilst the account was in clear dispute so this is another thing to add to the list.

 

I think I understand and have researched the unenforcable debt angle. But I wanted to have all things understood if possible.

 

The thing I don't understand and would like some pointers with, is what are the implications to the debt if the account-not overdraft, was closed without any notification? Is it just a slap on the wrist for them or are there more serious consequences for them (unenforcable debt aside)

 

Also,

 

Is it possible if it does go to court, that you can have many arguments or points of compliant with regards to the case?

 

I.E the starting point is obviously whether it was enforcable or not, but then I have all my other points too as to why I don't think the debt is enforcable or why it should at least be reduced, either by the mechanisms agreed on this "contract" sliding scale method, reduction for charges applied & reduction for charges and interest applied whilst in dispute+ any penalties for not closing the account properly?

[car2403]

The thing I don't understand and would like some pointers with, is what are the implications to the debt if the account-not overdraft, was closed without any notification? Is it just a slap on the wrist for them or are there more serious consequences for them (unenforcable debt aside)

 

The operation of the Account is governed by the FSA - basically, they can close it willy-nilly as it's allowed in their T&C's. The overdraft is a different story, of course.

 

Is it possible if it does go to court, that you can have many arguments or points of compliant with regards to the case?

 

Absolutely, you can have as many salient points in your defence as needed.

 

I.E the starting point is obviously whether it was enforcable or not, but then I have all my other points too as to why I don't think the debt is enforcable or why it should at least be reduced, either by the mechanisms agreed on this "contract" sliding scale method, reduction for charges applied & reduction for charges and interest applied whilst in dispute+ any penalties for not closing the account properly?

 

You'll just need to be careful with construction, as the bit in bold suggestions a partial admission with a partial defence

[floricita]

thanks again.

 

just one point on what you said.

 

And that is, that to date, they refuse to give me a copy of the t&cs as of when the account was opened. Only current ones.

 

 

 

so the point you made earlier that they can close the account as they like because its in their t&cs, does that still stand up if they can't produce the t&cs as of when the account was opened?

[floricita]

Sorry one other thing also, what did you mean about part admission with regards to the above?

[car2403]

thanks again.

 

just one point on what you said.

 

And that is, that to date, they refuse to give me a copy of the t&cs as of when the account was opened. Only current ones.

 

 

 

so the point you made earlier that they can close the account as they like because its in their t&cs, does that still stand up if they can't produce the t&cs as of when the account was opened?

 

Not really, as a Judge is likely to decide that ALL of their T&C's would include the option to close the Account, so ANY would suffice. Of course that's unfair, but when things are decided 'on the balance of probabilities', they don't always work in your favour

 

Sorry one other thing also, what did you mean about part admission with regards to the above?

 

If you were to include those words in your defence, you are admitting that you owe part of the debt - the part that isn't disputed.

[floricita]

I see thank you.

 

Can I just clarify one thing though?

 

When a debt is uneforcable, I thought that means that it does exist but it cannot be enforced by a court of law. therefore admitting that you owe them money would be inconsequential?

 

If the argument is that an unenforcable debt means that it doesn't exist at all, then I would have thought this could be easily proved by statements etc??

[car2403]

Have a read of this

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?191353-What-if-the-Judge-asks.....................-....

[floricita]

Wow, thanks that was very interesting and there is a lot to digest and read more on.

 

Just one more question before I begin further research. And this is related to the order of proceedings.

 

Is it possible to argue in the first instance whether or not the debt is enforcable. And then dependent on the ruling, argue that.

 

I.E I argue whether its enforcable or not, the judge says it is, can I then argue that I do not owe the whole amount because of xyz (points previously mentioned), or would that be a new case or some sort of appeal against the ruling?

[floricita]

Couldn't it also be possible, to say something like,

 

I did not agree to pay charges onto the account and the amount levied was unreasonable and I wish that to be offset against the amount owed to the creditor.

 

If its them taking the action the burden of proof would be on them to produce evidence that this is not true and without an enforacble agreement, without a contract without the t&cs of the overdraft as was agreed in their words "by verbal agreement", how can they prove otherwise?

 

This is also true, I do not remember ever signing or agreeing to anything which said I should pay £150 for going over the agreement in one month period

[car2403]

Wow, thanks that was very interesting and there is a lot to digest and read more on.

 

Just one more question before I begin further research. And this is related to the order of proceedings.

 

Is it possible to argue in the first instance whether or not the debt is enforcable. And then dependent on the ruling, argue that.

 

I.E I argue whether its enforcable or not, the judge says it is, can I then argue that I do not owe the whole amount because of xyz (points previously mentioned), or would that be a new case or some sort of appeal against the ruling?

 

If the debt is unenforceable, they can't force you to pay, although the debt is still owed. If you read that link, you'll see what whether you owe it or not is irrelevant, the question for the Court will be can they enforce the agreement against you. Arguing you owe part of the debt amounts to a partial admission, whereas the rest of the statement of case is a defence - as I mentioned earlier, you just need to be careful on constructing your statement of case, then, as you can't fully defend a claim when you partially admit it. (Even if it is an alternative, meaning "I don't owe this debt, but if the Court says I do, I admit to some of it and not the rest", as any Judge will see that as trying to evade the debt completely, IMHO)

 

I don't think you need to get in to what will/will not happen, though, as that is a bit confusing when we're talking hypothetically. (Plus I don't have time, when others are in a position of needing that help in their claim where they HAVE to defend, because a claim has been instigated - sorry, not meaning to be blunt, if you're looking to find out what MAY happen, you'd be better off reading threads of others in the same situation as you, just further down the line. Oh, remember, also, that every claim is different, so you may not follow the same process as they do, while you're reading. If a claim does come about, then we can get stuck in to the nitty-gritty )