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

[car2403]

Unless, of course, you take Court action for a declaration of unenforceability

[Mozz1]

Unless, of course, you take Court action for a declaration of unenforceability

 

That would be cool.

 

How does she go about getting a declaration of unenforceaility?

 

If she loses, does she have to pay their costs?

[Mozz1]

and can she go to court while the fos are investigating?

[car2403]

That would be cool.

 

While it's relatively easy to do, it's a long drawn out process and requires you knowing your case inside out.

 

How does she go about getting a declaration of unenforceaility?

 

s.142 of the Consumer Credit Act allows a party to an agreement to apply to the Court for a declaration of the rights and obligations of the parties - that would be you, applying to the Court for an declaration of enforceability, in this instance.

 

Take a look at this; (I sued Barclays and the claim covered an OD and a Personal Loan, but the principles would be much the same)

 

http://www.consumeractiongroup.co.uk/forum/barclays-bank/110184-car2403-barclays-bank-default.html

 

If she loses, does she have to pay their costs?

 

That depends, and is a risk. If the claim is allocated to the small claims track (which is likely, if it's under £5k) there are restrictions on when costs are awarded, which would require you to behaviour 'unreasonably' with regards the claim and for the Court to agree that is the case. If it's on Fast- or Multi- track, costs are a bigger issue, as it's normal practice to award costs to the winning party. Also worth noting that it may not be only the value of the claim the Court considers, as if it deems your claim complex, they can allocate to a track other then small claims.

 

Ultimately, it's for you to decide if you take Court action or not. Unfortunately, for some (me included, see that link!) it's the only option available to get a resolution.

 

and can she go to court while the fos are investigating?

 

While the FOS will probably put your case on hold while a Court claim is ongoing, there's nothing to prevent a Court investigating a complaint that is currently with the FOS.

[The Debt Star]

as if it deems your claim complex, they can allocate to a track other then small claims.

 

Therein lies the problem with apputenant increase in costs of you lose.

[Mozz1]

Thanks Car and TDS. She can threaten the bank with a dec of enforceability order though. Might do that. If the bank continue to play silly beggars then she will take this all the way to the Supreme Court if necessary. Her legal costs will be zilch. theirs of course will be very real and that's the problem. The only concern is that the small claims court judge gets out of depth and allocates to another track, which s/he will because this CCA 1974 / Determination stuff is pretty darn complicated. Still, my GF needs the SRA info before any decision is taken.

 

Still awaiting to hear from bank as to whether they are reactivtaing the account. Ten bucks and my left nut says they won't.

[car2403]

Threats won't make the Bank take action - you may have to force their hand

[Peterbard]

Hi

Dont know if this helps i was researching this in 07 and eventually recieved this letter from the DTI

 

http://www.consumeractiongroup.co.uk/forum/general/93663-letters-dti-oft-regarding.html

 

Its post no 9 on the thread

 

Dear Mr Bardsley

CONSUMER CREDIT ACT 1974 (the Act)

Thank you for your emails of 15 March 2007, concerning overdrafts, and of 22 March 2007, concerning credit card agreements, which have been passed to me to reply. I apologise for the delay in replying.

I should note that unfortunately the Office of Fair Trading (the OFT) cannot comment on or intervene in individual matters. This is because such actions fall beyond the remit of the OFT and because the OFT cannot be aware of all of the relevant information in each instance. Similarly, the OFT cannot comment or express a view on particular practices, save where the OFT has considered a practice in the round and its view is in the public domain. The following points are therefore general in nature.

Overdrafts are normally not subject to those elements of the Act governing form and content of an agreement. This is because the OFT has issued a Determination under Section 74(3) of the Act excluding overdraft agreements from the need to comply. As a result of this there is usually no written agreement that a consumer can request under Section 78 of the Act. However, I should note that any Bank wishing to avail itself of the benefit of the Determination must notify the OFT of its intention to do so and is required to provide information to the prospective debtor. Specifically, the creditor must provide, in writing, at the time the agreement is concluded or before details of the credit limit if any, the annual rate of interest and any charges available, and the process for terminating the agreement. Typically banks make such information readily available via a variety of media on an ongoing basis.

Best regards

Peter

 

 

 

Peter

 

 

Edited July 28, 2010 by Dodgeball

[Mozz1]

PB thanks, that is interesting.

 

She has had a similar response in writing from no less than the Chief Exec of the LSB, effectively saying they won't investigate individual complaints but will look into it from behind the scenes. Our reckoning is that this is all helpful.

 

The OFT determination will apply, as we know, unless the bank failed to send the facility letter within 30 days of the od being taken out. Now, this is all to do with the od being legit.

 

Her other cause is the reactivation of her bank account as she contends that the Final Demand letter shsould not have been sent and, further, that they were in breach of the Lending Code in closing an account in dispute.

 

The od was a very long time ago now and thus far all she's had off the bank is a rubbish looking computer print out of the most recent facility letter that was sent to her.

 

Will look up your thread good sir.

[car2403]

Hi

Dont know if this helps i was researching this in 07 and eventually recieved this letter from the DTI

 

http://www.consumeractiongroup.co.uk/forum/general/93663-letters-dti-oft-regarding.html

 

Its post no 9 on the thread

 

Dear Mr Bardsley

CONSUMER CREDIT ACT 1974 (the Act)

Thank you for your emails of 15 March 2007, concerning overdrafts, and of 22 March 2007, concerning credit card agreements, which have been passed to me to reply. I apologise for the delay in replying.

I should note that unfortunately the Office of Fair Trading (the OFT) cannot comment on or intervene in individual matters. This is because such actions fall beyond the remit of the OFT and because the OFT cannot be aware of all of the relevant information in each instance. Similarly, the OFT cannot comment or express a view on particular practices, save where the OFT has considered a practice in the round and its view is in the public domain. The following points are therefore general in nature.

Overdrafts are normally not subject to those elements of the Act governing form and content of an agreement. This is because the OFT has issued a Determination under Section 74(3) of the Act excluding overdraft agreements from the need to comply. As a result of this there is usually no written agreement that a consumer can request under Section 78 of the Act. However, I should note that any Bank wishing to avail itself of the benefit of the Determination must notify the OFT of its intention to do so and is required to provide information to the prospective debtor. Specifically, the creditor must provide, in writing, at the time the agreement is concluded or before details of the credit limit if any, the annual rate of interest and any charges available, and the process for terminating the agreement. Typically banks make such information readily available via a variety of media on an ongoing basis.

Best regards

Peter

 

 

It's the first time I've seen this letter, PB - the highlighted bits are interesting. How can the Bank show the information 'was provided' if it's not sent as a letter? Would an advert in a daily newspaper, (as happens with interest rate adjustments) or something on their website suffice, I wonder? All technical babble, as not relevant to this thread, but worth sounding out all the same.

[The Debt Star]

IMHO "via a variety of media on an ongoing basis" means the updated facility letters they send out every 6 months or so. A bit like the amended T&C they send out every now and then. Very much like the one she received a naff copy of from them.

 

Having said that, the bank still have to send an initial facility letter within 30 days of the od...so I believe?

[floricita]

I wish you the best of luck with your case.

 

I'm a bit confused by one part of the argument however, is it the case that if no facility letter was sent within 30 days then the o/d is invalid?

 

Or is the point that you want them to send you the original signed contract or copy there of, they won't do that (but they should under the determination) and therefore, because they can't produce a copy, the o/d is invalid?

[car2403]

With overdrafts, complying with the determination come first - if they can't comply with the determination, they have to comply with Part V of the CCA, relating to form and content. meaning that they need a properly executed, legal agreement, signed by the debtor to enforce the debt.

 

If they can't comply with the determination and don't have a properly executed, signed by the debtor agreement, then the OD is unenforceable.

 

I'm yet to see any bank get a customer to sign a properly executed, legally binding CCA agreement

[floricita]

Thanks a lot.

 

again I wish the OP the best of luck

[Peterbard]

It's the first time I've seen this letter, PB - the highlighted bits are interesting. How can the Bank show the information 'was provided' if it's not sent as a letter? Would an advert in a daily newspaper, (as happens with interest rate adjustments) or something on their website suffice, I wonder? All technical babble, as not relevant to this thread, but worth sounding out all the same.

 

Hi

Yes i queried that at the time and actually got through to the guy who wrote the letter.

He mentioned information on the website.

To me the act requires documentd initial information in the manner stted.

 

anyway i suppose someone is going to have to test this it is well overdue.

 

Peter

[the_shadow]

Hi

Yes i queried that at the time and actually got through to the guy who wrote the letter.

He mentioned information on the website.

To me the act requires documentd initial information in the manner stted.

 

anyway i suppose someone is going to have to test this it is well overdue.

 

Peter

 

It would probably come up as a case for Waksman if it was tested

 

S.

[The Debt Star]

To me the act requires documentd initial information in the manner stted.

 

To my mind that has to be right. i woukld have thought the original od facility letter ? Not a cats chance the banks would keep copies of these anyway of course...

[floricita]

Sorry guys, but what is a facilities letter?

 

Is that the letter which complies with the determination?

[floricita]

And how can you prove they didn't sent a facilities letter? Couldn't they just make one up now?

[car2403]

To my mind that has to be right. i woukld have thought the original od facility letter ? Not a cats chance the banks would keep copies of these anyway of course...

 

Indeed;

 

http://www.consumeractiongroup.co.uk/forum/barclays-bank/110184-car2403-barclays-bank-default.html

 

 

Sorry guys, but what is a facilities letter?

 

Is that the letter which complies with the determination?

 

Yes

 

And how can you prove they didn't sent a facilities letter? Couldn't they just make one up now?

 

You can't prove something wasn't sent, they have to prove something was that complied. In my case, link above, what they did sent didn't cover their obligations, and they lost in Court, then decided to settle the issue before the 2nd hearing. (They included the EAR - equivilent annual rate - instead of the APR - annual percertage rate - in their clumsyiness to provide something. I can't help but think if they had taken me seriously, read the claim properly and the Determination precisely before going in all gung-ho, expecting the Judge to side with them, they may have won. They didn't!)

[Mozz1]

Not a whisper from the bank yet. The FOS also haven't written to acknowledge the dispute. Oddly enough the GF received an email from the information commissioners office stating that they would be interested to hear if the SAR has not been received within the 40 day limit. She never contacted the ICO so someone else has.

[johnnymitch]

It may be that the ICO does random checks on Data Protection requests to the various bodies .......... and your GF came up as one of those ......but I'd say it's worth responding to .......

[Mozz1]

yes, we are monitoring the time line!

[Mozz1]

It may be that the ICO does random checks on Data Protection requests to the various bodies .......... and your GF came up as one of those ......but I'd say it's worth responding to .......

 

either that or the LSB and ICO are hooked up in some way?

 

anyway, thus far all we have from the HSBC itslef is a letter which states, verbatim, that the CCA 1974 does not apply to overdrafts per se. That is plain wrong. Only metro have said that part V exemption applies when they sent their threat-o-gram to her...not HSBC.

 

And its all quiet on the Western Front at the moment. I should imagine a combination of my GF's letters, the LSB, the ICO and the FOS are keeping the bank busy.

[Mozz1]

Hi all. The latest letter is attached from the Hongkong Shanghai ****ing Corporation.

 

They have reinstated the account.

 

They are offering some money "as a gesture of goodwill" provided the GF signs away her complaint.

 

They deny everything; valid final demand; fully industry compliant; overdraft not covered by CCA.

 

Also no sign of the SAR.

 

They also make no reference to my GF's two hardship letters that preceded their final demand letter (we contend this was in contravention of the lending code and invalidates the final demand that came after these; but is this correct?).

 

However, can anything more be achieved? The Foz have returned all of her letters and with a bulk bog standard complaint form to fill in instead.

 

Any advice?

ckt24ajqscn00092.pdf

ckt24ajqscn00101.pdf

ckt24ajqscn00110.pdf

ckt24ajqscn00083.pdf