HSBC no CCA

[spartathisis]

Hi, not had to deal with any of my cc debts for over 2yrs (all either unenforceable or DN problems), but the only card i had managed to keep straight was a HSBC one that i now cannot keep up with. I have sent a DSAR and had confirmation, in writing after threatening to make a formal complaint to the ICO, that they DO NOT have a copy of the agreement (if there ever was one).

 

Since it was over 2yrs ago that I researched and joined CAG, I am sure the info I had then may be out of date. Could someone please give a quick refresh of anything that has happened that may affect me putting the account into dispute and not paying?

 

Yes, I know there is a search facility, but I am currently going through a divorce and having to defend that myself (debts seem easy!).

 

Thanks in advance

[PGH7447]

nope not really, the same rules still apply, they will say you had the money but with no agreement no enforceable debt

[citizenB]

There is little point complaining to the ICO in respect of a mssing agreeement. They will just advise that the agreement is covered under the CCA1974 and as such they have now power to instruct the creditor to provide a copy.

[Bazooka Boo]

I am also very surprised that they have not simply issued you with a recon version of the agreement, something which the courts appear to be accepting lately...

 

Either way, you are now in a much stronger position to either offer them a much reduced F&F offer, or simply reduce your payments to suit your current situation.

[spartathisis]

Thanks, it was the reconstituted bit I was worried about. I threatened the ICO and it worked, they had ignored two previous letters requesting info that was missing from the SAR.

 

I did say when writing back that I wanted to "compare" their copy with mine, though I had noticed that a note had been put in and among all the info that they couldnt retrieve the agreement, hence my request.

 

How come reconstituted CCA's are now being accepted?

[BRIGADIER2JCS]

The recent case law changes have caused this, the simple answer is the

judges are using the balance of possiblities that given the creditor has your details

and account details the account exists, also if there statements of the account

showing activity linked to the debtor, they find that the debt is enforceable.

[spartathisis]

So totally ignoring the will of Parliament and Legislation then!

 

Is this all judges or the usual lottery?

[BRIGADIER2JCS]

It is based on the founding premise of the civil law which is to consider what an reasonably believed, not statute,

but the founding basis.

[spartathisis]

So all of this that has worked on 5 creditors is suddenly no longer valid?

 

 

CCA 1974

s.61

"(1) A regulated agreement is not properly executed unless -

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner”

 

 

S.127

Enforcement orders in cases of infringement

(1) In the case of an application for an enforcement order under -

(3) The court shall not make an enforcement order under section 65(1) if section 61(1) (a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)."

 

 

 

Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007)

 

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them.

 

Solicitors Code of Conduct:

 

Rule 11: Litigation and advocacy

Deceiving or misleading the court – 11.01

12.

You might deceive or mislead the court by, for example:

(a) Submitting inaccurate information or allowing another person to do so;

(b) Indicating agreement with information that another person puts forward which you know is false;

 

 

Dimond v. Lovell [2000] UKHL 27; [2000] 2 All ER 897; [2000] 2 WLR 1121 (11th May, 2000)

 

Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.

 

The Vice Chancellor Lord Justice Chadwick in the Supreme Court of Judicature Court of Appeal (Civil Division) on Appeal from Epsom County Court (HHJ Hull)

 

Wilson v First County Trust [2000] EWCA Civ 278 (3 November 2000)

 

26. The question arises from the terms of s.61 (1), 65 and 127 to which I have referred in paragraphs 9 and 10. It is apparent from the terms of s.61 (1) that there are several grounds on which a regulated agreement may be "not properly executed" so as to require enforcement by court order under s.65. The restrictions on such enforcement contained in s.127 are in two forms; the first (s.127(1) and(2)) leaves it to the discretion of the court, the second contained in s.127(3) is an absolute bar if the regulated agreement did not contain the prescribed terms.

 

Judgement of SHERIFF J K TIERNEY

 

Durkin v DSG Retail & HFC Bank PLC (May 2008)

 

120. The cases of Kpohraror, King and Wilson were all based on contract but it does not seem to me that there is any difference in principle between the nature of damages to be awarded in respect of a loss of credit brought about by a breach of contract, and one brought about by negligent misrepresentation.

 

121. I find that the pursuer is entitled to an award for the general damage to his credit in addition to an award in respect of the actual loss flowed sustained. Having regard to all the circumstances I consider that an appropriate award would be £8,000.

 

 

Lord Justice Goff, House of Lords

Kleinwort Benson Ltd v Lincoln City Council and other appeals [1998] 4 All ER 513

 

530. The recipient of a mistaken payment (whether of law or of fact) should make restitution because it is unjust for a party to retain the enrichment at the expense of the payor.

 

Furthermore, the House unanimously held that s 32(1)© of the Limitation Act (in the same material terms as s 26(1)© of the Limitation Ordinance (Cap 347) LHK), which was not drafted with the law of restitution in mind, was nonetheless applicable to an action brought to recover money paid upon a mistake of law. As a consequence, ‘the period of limitation shall not begin to run until the plaintiff has discovered the … mistake … or could with reasonable diligence have discovered it.’

[BRIGADIER2JCS]

hi, Case law recently has laid the path open to reconstituted agreement , sad but true.

[Alloyz1]

Would it be true to say then it seems now to be a better situation to have the agreements supplied and work on a case of the agreement being unenforceable due to not containing all of the prescribed terms? rather than no agreement supplied and the creditor saying "this is what it would have looked like m'lud? honest!"

[BRIGADIER2JCS]

That path is still open,so worth a try,

the recon agreements and the balance of probabilities together with statement showing activity on the account

is becoming quite established now, I have seen one Judge slap an oath on a debtor, and ask did you borrow

the money or not??, this in a case where was contestable documents.

It's a whole new approach now and some judges are certainly more clued up on ''debt avoidance'' ploys.

[BRIGADIER2JCS]

Post#9 is a good reference to case law on enforceable or not.

[Alloyz1]

I think the point I am errrrr.... confused about!! is by the judge asking "did you borrow the money or not", is relevant if the debtor is maintaining "I do not recongnise this debt". I think another arguement is "This is a point of Law and not a point of Prove it".

[BRIGADIER2JCS]

The point was that there was an acknowledgement by a by a failed SO'

it was denied by the debtor that he set up the order, judge said this was debt

avoidance.

[BRIGADIER2JCS]

The point was that there was an acknowledgement by a by a failed SO'

it was denied by the debtor that he set up the order, judge said this was debt

avoidance.

[Rocky Roadster]

Hi all,

 

In answer to a judges question "did you borrow the money or not?"

would it be fair to answer

 

"Yes, but my argument is that the agreement that the company offered me may have been unlawful and I may have been taken advantage of by the Creditor; and without the original agreement and prescribed terms they cannot demonstrate compliance of the agreement with the Law, and therefore cannot enforce the agreement."

 

I have just had a reconstituted Halifx one cc agreement from BOS with a snotty letter and a promise that the application form (in compliance with my section 60/61 request (?) )will be sent separately.

 

Also warning me about debt management companies and the newest OFT guidelines and court cases.

 

I can imagine all of the disputed debts suddenly being challenged because of the OFT guidelines and recent case law?

[BRIGADIER2JCS]

It is being appealed!

[BRIGADIER2JCS]

I have never seen such a rethink of what we have always

believed to be correct.

The judge in this case was young enthusiastic and it appeared

very clued up.

I can't post the reason for appeal yet for obvious reasons.

[BRIGADIER2JCS]

I have never seen such a rethink of what we have always

believed to be correct.

The judge in this case was young enthusiastic and it appeared

very clued up.

I can't post the reason for appeal yet for obvious reasons.

[Rocky Roadster]

Will wait for the results with anticipation!

Cheers,

[spartathisis]

I still cannot see how a piddly judge in a lower court can actually say that legislation that has stood for 20+ years does not count. The Act CCA does not leave wiggle room, i know there has been the test cases, but am sure they were on finer points brought before them and not the general principle of no agreement no enforceable debt.

 

Does that now mean that I can make my own "Reconstitued" agreement on what I remember would have been in it at the time eg 0% interest, goods are a gift, but you can make a payment when you want, if you want?

Does anyone have a copy agreement from HSBC from 1996?

[spartathisis]

I still cannot see how a piddly judge in a lower court can actually say that legislation that has stood for 20+ years does not count. The Act CCA does not leave wiggle room, i know there has been the test cases, but am sure they were on finer points brought before them and not the general principle of no agreement no enforceable debt.

 

Does that now mean that I can make my own "Reconstitued" agreement on what I remember would have been in it at the time eg 0% interest, goods are a gift, but you can make a payment when you want, if you want?

Does anyone have a copy agreement from HSBC from 1996?

[BRIGADIER2JCS]

Hi Rocky, It's the balance of bl**dy probabilities argument again.

[Rocky Roadster]

Hi Brig, do you mean the judge could consider that the CCA if available might have been legal or or on the other hand, it might not? but it probably was so pay up.