HSBC: Help Desperatley Needed! *** Won ***

[Mozz1]

Thanks. Will report back when hear from Foz and ICO to discuss escalation options.

[Mozz1]

Car, on another (similar)m thread to this you have said : "There needs to be a basis for Default removal - they won't remove it because you ask, but it's challengable if the debt is unenforceable, or the Notices are dodgy. None of which you'll know until you SAR them."

 

Our issue relates not to unlawful charges/disputed sum/unenforecability, butt o the fact that HSBC breached the industry codes in defaulting the GF afetr she had kicked off the complaints process. In your opinion, is the court going to be able to consider this?

[emandcole]

Been having a very interesting discussion with an advisor at the ICO on the issue of invalid DN's on your credit files. It seems that this is a thorny subject for them and to date they've managed to provide answers without actually committing to a definitive answer either way.

 

Currently the view is that the ICO will not intervene if a DN has been served and the creditor was entitled to serve it. I pointed out that a DN is a legal document and is prescribed in both form and content by parliament.

 

Pushing them for an answer on a DN that was perhaps served at the right time it quickly becomes less clear. The ICO do not appear to be concerned with the accuracy or content of the iuformation on the DN, just whether it was served at the correct time.

 

It's a bit like a police officer arresting someone only to assault them later on in the custody suite. The independent police complaints commissioner investigates and rejects the complaint as the offender was actually arrested in an appropriate manner!

 

When I pointed out that in the case of Woodchester Lease Management Services Ltd -v- Swain & Co the high court accepted the inaccurate default notice was unacceptable based on its content (and not when it may have been registered) the ICO suggested I go to the OFT as they look after CCA issues. Cop out I would suggest.

 

It seems that the ICO opinion is not aligned with the high court and the ICO also suggested that where an invalid DN is found the recipient should also use the court to sort it out - surely this makes the ICO somewhat pointless?

 

I also asked for clarification on what they implied was true. The ICO stated that the invalid DN is not an issue as the Credit Reference Agencies do not actually show this level of detail, they merely record the presence of a default.

 

I therefore asked them to confirm that they are in fact only interested in inaccuarte information that is subject to third party viewing. They implied of course that as the info on the DN is not actually seen by any party other than the creditor and the consumer that its inaccuracy is somehow unimportant.

 

Are there any other legal documents we expect to hold correct information that are inaccurate that the ICO would be interested in? That way we can then ask how come a DN is unimportant as to content but this insurance paperwork (for example) is inaccurate and that does matter?

 

There must be a way round this, I cannot accept that it's ok for an invalid legal notice to be completely acceptable by the regulatory bodies.

[Mozz1]

Hi Emandcole. thistakes me back to the court route; can / will the court look into a 'claim' to remove a DN? There is no financial loss here - just a trashed credit score despite repaying the o/d in full on the same day they registered the default.

[Guest HeftyHippo]

if you got the answer in writing, we could ask MPs to ask the relevant minister what the point of the ICO is as they dont actually appear to do anything! As many of us cannot afford to take legal action, we rely on the so called guardians to protect us.

 

as for only creditors seeing crdit files, absolute bull snot which shows they dont know what theye talking about. any application for credit will detect a default or adverse entry on your file. as most creditors use automated methods, they will simply 'see' the DN has been registered. They won't of course know if it was invalid or incorrectly served, just that its there. As a result, you can be refused credit. Some jobs/employers, also require good credit records, so you could be refused a job because of it, and yo may not even know the default has been registered! hence, a DN does result in adverse consequences, otherwise, there would be no point in registering it.

 

ICO = usesless

[johnnymitch]

Hi emandcole ,

 

i think there two lines of attack here .......

 

1. as mozz1 says it would be handy to get ICO to confirm in writing what they told you , then you could take it further and ask 'what's the point of them'

 

2, at the same time try a letter pointing out to HSBC that you cleared that debt on the day they defaulted you ...... and that in your opinion a court would look favourably on that ...and that you're prepared to take them to court to test it , so would they like to reconsider and arrange to withdraw the DN .

 

Failing any progress from the above , I'd say court would be your next route..... and yes it is important IMHO to clear your Credit Rating , even if money is not directly involved .

 

I also think a judge would look a bit po-faced at a company which carried on with a default the day the the debt was cleared ...... (if you've got paperwork to support that , send copies to HSBC with your letter , it may concentrate their mind if they think you'll take them to court on it ....... )

[Mozz1]

oh we will defo take them to court Johnny. Our concerns are that the court will say "its got nothing to do with the court." Its an ICO matter. and we all know what useless crankers they are.

[johnnymitch]

I believe a few people have successfuly gone the court route......so I suppse it depends on the judge's view of the case ......... but where reputation is involved I would think it's actionable ..............

 

If anyone reading this has any experience of using the court for removal of a Default Notice ....could you please help mozz1 with a bit of advice ........

[car2403]

I think you need to have a read of this thread - at least the last few pages or so...

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?166413-CCMAN-Vs-Goldfish&highlight=

[johnnymitch]

Thanks so much for that link car ....how times have changed eh?

 

What happened to good old common sense justice .......... ?

 

Well worth a read mozz1 ..... then you can make an informed decision ......... ...

 

best of luck

[car2403]

Yes, I know, JM. Makes me feel lucky that I managed to achieve what I did before it got more difficult - I thought it was hard enough first time around, so we need to make sure those in Mozz's situation know what the difficulties are these days.

 

Not saying it's impossible, but there's a definite reluctance to refuse to enforce around the place at the moment. Smacks of the Bank Charges fiasco, IMHO...

[emandcole]

I do actually have the responses from the ICO as its all been done via email with one advisor handling the query from the off. She keeps coming back and I keep whittling it down until we've arrived at the fact that the ICO appear to:

 

 

• Be seemingly uninterested in the actual content (the information...doh) on the DN but are completely fixated and interested in whether the creditor has filed the DN with the CRA at the appropriate time.
  
• Support the same invalid DN as 'fine' that a court would have to declare was invalid. As such I asked why the ICO is not aligned with the learned interpretation of the high court quoting the Woodchester case.
  

From what I can gather so far the ICO is quite happy for a bank to send you a DN for 12 billion pounds under Section Marzipan (12) of the Consumer Borrowers Act (2014) written on the back of a paper bag demanding that you pay before 68th Febtober 1235 and written in blue crayon.........as long as it was sent at the right time.

 

To the ICO this appears to constitute 'valid information' and they see no need to have a third party correct (in the cae of a live agreement) or remove (in the case of a terminated agreement).

 

I also asked why the ICO insisted that a consumer should solve such disputes in the courts when surely its the role of organisations like the ICO to intervene in such matters at an early stage so that court time is not wasted.

 

We'll see what comes back but I'm not expecting any significant change in opinion - I have however been left with the distinct impression that the ICO really do not want to have to look into this. I suspect back seat negotiations amongst the @anking industry and dodgy handshakes hold all of this together.

 

Will be taking this to the OFT shortly enough as I also asked the ICO to confirm they thought it was most appropriate for a consumer to take an information/data issue to the OFT and not the ICO. Wriggle wriggle.

[Mozz1]

Hi. I would have thought our bringing a claim for the removal of a default thru the small claims track wouldn't be too onerous? Costs are limited for either party are they not? Anyone know what the worst case sceanrio might be on a small claims track claim like this? We could drop the case if it gets allocated to a higher track. Also, why the heck would HSBC defend if there is no money in it for them? They have already been paid in full...

[car2403]

Hi. I would have thought our bringing a claim for the removal of a default thru the small claims track wouldn't be too onerous? Costs are limited for either party are they not? Anyone know what the worst case sceanrio might be on a small claims track claim like this? We could drop the case if it gets allocated to a higher track. Also, why the heck would HSBC defend if there is no money in it for them? They have already been paid in full...

 

Small claims isn't just about the amount of money being claims, ironically - if the Court thinks it's too complex an issue for SCT, they will move it to Fast- or Multi-track. (My guess is Fast track)

 

Costs are limited in SCT, but are unlimited in other tracks.

 

They will defend, because they will try to get it moved to something other than SCT, knowing that you will likely discontinue on the issue of costs being unlimited.

 

All this needs serious consideration before going to Court, get this wrong and it could back fire immensely. There's an argument they even incur costs constructing a defence, which they could try on even if you discontinue - I guess you'd need their agreement to discontinue and to bear their own costs.

 

Check out my O2 thread for just how far they are willing to go to back this cause. Remember that you are, fundamentally, challenging the validity of their entire business model by challenging this process - I know, I've faced those arguments, and lost. Luckily without bankrupting myself and making a bad situation even worse along the way.

[the_shadow]

Hi. I would have thought our bringing a claim for the removal of a default thru the small claims track wouldn't be too onerous? Costs are limited for either party are they not? Anyone know what the worst case sceanrio might be on a small claims track claim like this? We could drop the case if it gets allocated to a higher track. Also, why the heck would HSBC defend if there is no money in it for them? They have already been paid in full...

 

Agree with Car2403 here, litigation is not to be taken lightly when nobody has blazed the trail previously. Costs are incurred from the first response you get from their legal team to your claim and if they ask for a different track to you in the AQ chances are the courts will ask for a hearing where they will undoubtedly try to pile on as much costs as possible and thats before you even find out if the courts agree to SCT.

 

Discontinuing after starting court action makes you liable for ALL their costs up to the point of discontinuance and whilst not set to the SCT they are as in the fast track.

 

S.

[Guest HeftyHippo]

I think we may have gone off track here, me included and want to check

 

a default on your credit file is different from a default notice. Its unfortunate that they sound related.

 

A default on your credit file can be registered when you break the terms of your agreemnent, usually its after about 3 months. That is done simply by registering those facts with the credit reference agency

 

a DN is required under the CCA when an account is in breach, ussully in arrears.

 

The 2 are separate and I think can be done independently. Sometimes the credit file has a default registered first, then when the bank wants to push thing further, a DN is issued. The file shows your payment history, so it shows as soon as you miss a payment

 

Usually, when we talk about removing a default, it is the CRA file that we talk about, as that is what others see and affects credit rating. No one else sees the DN unless court action is taken, and then not always.

 

The ICO probably would not be interested in the DN as no one sees it, as long as the info is correct, ie, the cause of the breach, as that is the bit that relates to you. The wording of the document does not relate to you. If it is incorrectly worded and does not meet regulations, I don't think that it is of interest to the ICO. If the stated cause of the default is incorrect, then the ICO should be intereted because they are recording inaccurate info about you somewhere in their system - the DN itself is probably not stored, but there must be some info in your files that justifies issuing a DN, and that info must be correct.

 

As for the CRA file, the info recorded there must be accurate. It contains the record of payments and liabilities.

 

In my opinion, if they issue a defective DN, and then terminate, your liability for the outstanding balance disappears, and you owe only the arrears. This is due to them breaking the agreement and is by virtue of contract law. This is believed widely on this site.

 

At that moment, your credit file should show the total sum owing as the arrears only, recognising that the rest of the balance is not owed any more. The time you have been in arrears should end at the time they end the agreement, as the repayment schedule specified in the agreement ends when the agreement ends.

 

If the DN is correct, and they lawfully end teh agreement, they should not (IMHO) show the arrers as continuing, again, as the contractual repayment schedule ends when the agreement ends. The amount owing should be the total balance.

 

In most cases, what happens is that they continue to report you being in arrears every month, I think this is incorrect because when the agreement is ended, the contractual repayment schedule also ended. Yes you owe the arrears but there is no schedule, so you cant be in breach of it. (IMHO).

 

They also report the amount due as the outstanding balance rather than the arrears. This is wrong

 

ie, what they do is to continue to update and report the CRA as though the DN was never issued.

 

Although the ICO would not be interested in the DN, they SHOULD be interested in the default showing on the CRA because it contains incorrect information - the amount showing as owed should be the arrears only, the period in arrears should be the period of arrears up to the agreement ending.

 

However, the credit agencies and banks are rather clever. They don't actually report the time in arrears, they report the months where no, (or maybe insufficient) payment is received. That gives the impression of continuing arrears and is how its interpreted

 

I suspect that they report the period where no payment has been received because that is what they've always done and it shows a historical pattern. The situation where people are challenging their right to report this info is new, and was never anticipated. They found a way that suited them, and don't want to change the whole way their system works to make it accurate.

 

In any case, they don't want to accept that they are incorrectly reporting info as it works against them, they would have to agree to write off large amounts, would lead to more publicity about incompetent banks, and would lead to more people refusing to pay.

 

I think the poster needs to clarify what she has actually discussed with the ICO - was it that DNs are issued that don't comply with regulations, or was it that the info reported on CRA files is inaccurate?

 

In my situation, I have a number of defective DNs. I have reported some banks to the ICO for inaccurate reporting on my CRAs, but it will take the ages to even star to look at it. And I'm not hopeful that they are clever enough to understand the law.

 

I have complained to the banks themselves but they evaded the question, so I reported the matter to the FSO and under the section on the compaint form where it asks what the bank can do to resolve the matter, I asked them to answer relevant questions, which were specifically worded to force them to either admit they haven't considered my letter that explains the facts, or that they have, and if so, to state their reasons for agreement or disagreement so that we can discuss the matter, consider the opposing views, and hopefully agree on the situation and the way forward to resolution.

 

Of course, I expect them to try to wriggle out of it, we'll see then just how useless the FSO is, but at least, in the event of later court action, I will have been shown to have actively tried to ascertain the facts and resolve the problems. if they actually do supply facts we might do that, if they refuse to answer questions, it makes them look bad, and will be used as a defence for any costs they may claim.

 

Of course, what is actually required is a test case I followed Cars O2 case and was shocked but not surprised at the dirty tricks. You can see how desperate they are to protect their dishonest activities.

 

I would quite happily persuade someone to denote some money on my behalf to join others in funding a well constructed test case against this practice.

[Mozz1]

Hi. It is the Default registered with the CRAs that she is disputing.

 

To cut a long story short, she had exceeded her overdraft by about £45 and HSBC sent 2 excess notices. She responded to both excess notices and on the second excess notice she made a repayment offer and also brought the account back within the agreed limit. The bank, however, ignored this letter and sent a DN. On the same day that she begged borrowed and stole the money off her rellies to repay the overdraft in full, the bank registered the default with the CRAs. It is now marked as "Satisfied" but the Default is now sat there for 6 years and has trashed her credit worthiness. I would also point out that she had also kicked off a formal complaint with the bank prior to the default being registered.

 

This really is a very shoddy, and in my view, frankly disgusting example of HSBC's crass incompetence.

[Guest HeftyHippo]

Hi. It is the Default registered with the CRAs that she is disputing.

Forgive me, I was talking about emandcole's correspondence with the ICO, and wanted to clarify that a wrongly written DN would not be of interest to the ICO whilst an inaccurate default with a CRA should be.

 

In your case, though it seems harsh, I think you have got to consider if the bank acted incorrectly or whether the info recorded with the CRA was incorrect

 

You may not think they should have acted as they did, but the key thing is whether what they did inaccurately executed or inaccurate in content. Its hard enough to get anybody to criticise any of these **** bags as it is, but where it is a case of harsh (but not inaccurate) treatment it is even harder. To give an anology, if you pay for a parking space until 12.00 and the warden gives you a ticket at 12.01 and you get back to the car at 12.02, that's harsh, but within the rules. Writing the ticket at 11.58 and sticking it on the car as you get into it at 11.59.59 is outside the rules

 

HSBC seem to be a stickler for their procedures which override common sense. Unless they have acted outside the rules, or have recorded something inaccurate, I doubt they will ever concede anything, and even then they won't be keen to admit it, insisting that they followed their procedures which are freely available etc etc blah blah

 

Maybe an appeal for some common sense and compassion might work better than legal threats, because their actions seem disproportionate to the circumstances. However they will argue that they cannot remove the default because they have to report things fairly for the benefit of others who use the info.

[car2403]

Maybe an appeal for some common sense and compassion might work better than legal threats, because their actions seem disproportionate to the circumstances. However they will argue that they cannot remove the default because they have to report things fairly for the benefit of others who use the info.

 

Requests for common sense and compassion are wasted on these types of companies - they are just too big, too focussed on profits and too ignorant of 'people power' to even care about the complaint. Getting anything more than a template response from them will be nothing less than comparable to pulling your own teeth out, or pulling a limb off to fry up for supper.

[Guest HeftyHippo]

Requests for common sense and compassion are wasted on these types of companies - they are just too big, too focussed on profits and too ignorant of 'people power' to even care about the complaint. Getting anything more than a template response from them will be nothing less than comparable to pulling your own teeth out, or pulling a limb off to fry up for supper.

 

I tend to agree which is why I say

 

"Maybe an appeal for some common sense and compassion might work better than legal threats"

 

I've now bolded the important parts . Legal theats haven't worked, and they won't work, and wont even be listened to until court papers land on their mat, and as you know yourself Car, they will stop at nothing to win a court case, dirty tricks and all.

 

Having described the uselessness of the so called regulators, he has 2 choices - a direct appeal for common sense and proportionate action, or starting legal action without further delay.

 

The former is unlikely to work but costs virtually nothing. An intervention from his MP might carry more weight. The latter stands a chance depending on the circumstances, but is not without risk It hasn't been discussed whether the bank was within their right to report the default. If they were, legal action can't succeed anyway.

 

Although I would like him to screw the bank and CRA in court, I haven't seen anything that proves they were wrong. Harsh definitely, but not definately wrong.

[Mozz1]

I haven't seen anything that proves they were wrong. Harsh definitely, but not definately wrong.

 

Sorry, just so we can get this right. Your view is that recording a default with a CRA during a disputed account/formal complaint and even if the excess notice has been complied with isn't wrong??

[Carningli]

Hi Mozz1,

Perhaps I can help explain, the recommendations with regard to Bank action whilst accounts are in dispute are only recommendations/guidance by the OFT as to how this sort of situation should be handled in good practice , they have no legal backing. HSBC are well aware of these recommendations and that they are only just that. HSBC on that basis seem to be happy to disregard good practice and continue to ignore the OFT guidelines and pursue their own agenda.

 

Carningli

[Guest HeftyHippo]

Sorry, just so we can get this right. Your view is that recording a default with a CRA during a disputed account/formal complaint and even if the excess notice has been complied with isn't wrong??

 

My understanding was that your GF was in arrears and the default was applied at the same time as she 'begged and borrowed' off her 'rellies'. I know there has been arguments and complaints, but I haven't followed or understood the exact timescales for me to conclusivly say they are wrong. Thats why I said

"I haven't seen anything that proves they were wrong. Harsh definitely, but not definately wrong."

 

Note: I didnt say "definitely not wrong", I said "not definitely wrong"

 

I didnt say they weren't wrong, just that I hadn't seen enough proof or understood enough to say categorically or absolutely they were wrong.

 

However, from your tone, I have obviously missed something, or misunderstood something, so, because I dont want to further upset you by doing it again, I'll apologise now, and take my leave. I have enough aggro in my life so I don't need to risk getting involved in any more by offering in good faith, my honest, sincere opinion.

[Mozz1]

Hi Mozz1,

Perhaps I can help explain, the recommendations with regard to Bank action whilst accounts are in dispute are only recommendations/guidance by the OFT as to how this sort of situation should be handled in good practice , they have no legal backing. HSBC are well aware of these recommendations and that they are only just that. HSBC on that basis seem to be happy to disregard good practice and continue to ignore the OFT guidelines and pursue their own agenda.

 

Carningli

 

Hi. Yes, its definitely the guidance/recommendantions they have been 'in breach of'. A sort of 'pirates code' then I suppose for the banking industry.

 

Ok, so that given HSBC have breached the code (which we believe to be the case) but given that these have no legal basis (ie the guidelines are not statutory), then presumably court is a definite no-no and the only recourse is to the LSB and FOS.

 

The LSB aren't interested. They have wriuten saying they won't look at individual complaints. They say they have passed my papers onto their investigation unit but that I won't hear further from them even if they do look into it.

 

The FOS, I am advised, are an outboard ashtray and doon't/won't look at asking banks to remove Defaults from the CRAs anyway.

 

I have contacetd the ICO but fronm the above posts they won't look at Default removals either.

 

So, would I be right in thinking that the GF should just give up nowand accept this Default/6 year life sentence despite the fact that the Lending Code has been breached? Looks like the end of the road then?

[Mozz1]

Oh and Hippo, I was defo not intending to upset you. sorry if you got that impression mate.