Court claim issued by HSBC on a faulty DN & TN

[ed.]

Re: Court claim issued by HSBC on a faulty DN & TN

Apologies Jumper for another ramble, but I'll make it as quick as I can:

PT first off and as is right, as per PM. Apologies no slight was intended. I simply did not correctly finish my train of thought, I jumped off to the next point in my ramble without qualifying that you then followed up your posts with proof, with Judgements and further discussion on them that helps us all - I'm not alone in being grateful for that.

Sorry again if you thought I was attacking you, your comment in the reply:

i was merely trying to get the point across, you cannot come on here and start firing off that you have this golden nugget that will win the day and then not say what it is.

Was my thrust, but you said it far more appropriately than it appears I managed to lol

Lord Mr Alcohol, my friend, my salvation and my vice (hence upsetting people after a few and not explaining myself appropriately lol)

Yeah faulty DN's, S77-79 requests without a signature etc etc etc People who two years ago thought if they didn't receive a signed agreement back (but never kept up with changes or visited forums to see if things have changed) - well I don't like having no alternative but to tell them they really don't want to try and argue in Court. It's not just Brandon, it's McGuffick, it's Carey et al. Ame will giggle because she knows my temper and style of writing (BT letters lol) - maybe I'm due another fortnight holiday?????

I agree wholeheartedly with the rest of your post though, if a debtor believes they only have 14 days to rectify, but doesn't at any point because they think it makes no difference, who the hell is a judge to determine 'they didn't try' anyway. As PT says, being able to prove effort can go far, loan application, seeking a higher credit card limit, even maybe a witness statement asking family etc.

It all goes to effort, but if you have a Judge who thinks 'you didn't regardless' and dismisses a legislatively required 14 days, then it goes towards the belief Judges should be trained and accountable in my mind.

Justice will never be served when the determination is based on 'who tells the best story'. But I'm rambling again!

Jumper, I wouldn't recommend it given what I've read, BUT if you are adamant for your day in Court then you need unfair rels. I wouldn't be a trailblazer here though....let somebody with deeper pockets take that risk. I'm as arrogant as they come, but sometimes you have to concede.

Maybe in your case you are better getting things in hand, then looking at behaviour with the FOS without risk??? You talk about the Judge 'not' finding for you, but there's the Judge who found a debt was enforceable based on a cut up credit card, their's the Rankine's cases where enforcing a credit agreement literally now means only gaining a judgement.

Judges are human. Ergo they are prone to error. Are you prepared to take the risk (and I'm trying to be polite) of finding a Judge who didn't get laid the night before, who cut themselves shaving, who broke a breakfast bowl, and has spent the last 4 hours listening to inane arguments and cases????

Sadly you didn't pay, they are entitled to treat that as a breach, all effort to sort other payments go to possibly unfairness, but bottom line is they acted within the law. So even with my thoughts of unfairness, I can see a Judge saying 'what's unfair, they didn't do anything they weren't entitled to'.

Do you really want that risk?

[jumper999]

Re: Court claim issued by HSBC on a faulty DN & TN

Could it be looked upon as unfair that HSBC agreed to accept my OH's payment in installments and not mine. I remember once when my OH phoned the HSBC when he received a letter to make an arrangement and the guy on the other end was very rude to him, he said that my OH should get a job in mc donalds and with that pay his debt off , so my OH complained to HSBC in writing, and it only took them a couple of times to agree to a plan,

And like me he was offering more in the beginning and by the time they agreed it was 3 times less than what he was offering in the first place and they took off approx £550 off the balance, now how come I was not allowed? Is that not prejudiced or what?

First DG said no then a week later they agreed

It was easy as 1,2,3,


This was all going around the same time I was writing to them too.

[jumper999]

Re: Court claim issued by HSBC on a faulty DN & TN

Thanks mm, I am not disputing not paying at all. I have said that from day one and I stand by that stiill today.

What I am saying is how unfair I have been treated and also there is a lot more to my case which I do not want to post up as would like to keep it for my defence.

But thank you for your support, just have to wait and see what happens.

[middenmess]

Re: Court claim issued by HSBC on a faulty DN & TN

Don't you think that the lenders have all along been having their cake and eating since time began......

They have and we have accepted it as being the way of things up until recently when,with the advent of the internet and the fact that we are all more 'street wise' today then we ever have been,we have railed against their omnipotent position which they have abused for ever.

I feel for you and understand your stance on this matter and agree that you have a case of sorts but I have to be honest and say that it's likely to be a complicated defence to put across to a Judge who due to the judge lottery could well be a 'you spent ,you pay,no excuses' type.

[jumper999]

Re: Court claim issued by HSBC on a faulty DN & TN

Back to what I was going to ask about the true copy of my cca agreement. I believe that HSBC have sent me a reconstructed agreement and is not like the one I originally had, as I do not have a copy but maybe find as I found OH's copy today.

Can I ask them again for a copy? If so do I just write an ordinary letter or have to make a CPR request, and I did not receive a letter before action prior to HSBC issuing me with a claim form........which is not a good thing either.

[jumper999]

Re: Court claim issued by HSBC on a faulty DN & TN

Very well put mm, and I totally agree.

Don't you think that the lenders have all along been having their cake and eating since time began......only problem for them is now that we the average joe's have found mama's secret receipe and found a way of not letting them have too much cake and get as fat as they have.

If the lenders get in trouble they have the government to fall back on, where as if we get in to trouble our homes are taken away unless we take drastic actions, and at such a drastic times many of us get hooked in by sub prime lenders and we all know what they have done.

If you read the UTTCR & UTCR Acts, I for one am made to feel like I can fly as there is so many rights and help available to the consumer, but then again how many thought that if they had a faulty DN and the lender terminated then they were out of the woods.........mmmmmmmmmm....quite a lot I believe.

Like I said earlier whenever we find a way out the woods these institutions, some with the backing of the courts always find a way to block us and keep us in there, and if we look at the Heath, Walker and now the Brandon case then we don't have to guess to much.....oh I forgot the OFT V Banks charges,

I for one had quite a hope the consumer would win, and everyone would get their charges refunded...that just went up in smoke. So I am thinking negative and if something from now on positive happens then I will think of it as a bonus.

We should find a way of putting something in this cake that these lenders keep having and eating so they get indegestion and diareahha for a very long time hehehehe!

Maybe some laxatives?

Tomorrow is the 6th, so one month and counting, so many of us waiting for the judgment and lord knows how Brandon must be feeling, he's probably had more publicity than the X-Factor.

[middenmess]

Re: Court claim issued by HSBC on a faulty DN & TN

As to the default charges being penalties, the judge at first instance held that lenders do suffer loss when borrowers fail to make payment on time or go over the agreed limit and that default puts pressure on cash flow and reserves. He held that the charges applied here were a reasonable pre-estimate of loss and therefore recoverable. This was upheld on appeal.

Read more at: Court claim issued by HSBC on a faulty DN & TN - Page 8 - Legal Beagles Consumer Forum

If default charges for late payment are not penalties but just compensate the lender for

suffering loss when borrowers fail to make payment on time or go over the agreed limit and that default puts pressure on cash flow and reserves


what then is the term to be used when the lender then charges interest on these compensation fees after 28 days?

it should also be remembered that as different rates of interest are applied to individual accounts it could be argued that some people were being penalised more than others as their interest rates were much higher than other peoples but the 'pressure on cash flow and reserves' would be the same for the lender initially whether the rate of interest on an account was 15% or 40%.

IMO the judges reasoning might hold water if all accounts were on the same interest rate but the rate of interest charged is directly proportional to the amount of expected loss meaning that the lender already has his compensation for late payments already built into the agreement by way of higher interest rates for higher risk borrowers.

The judges decision suggests that not only can lenders have their cake and eat it but the borrower has to supply the plate to serve it on and the cake fork with which to eat--it makes it a win,win,win and then some situation for the lender!

[jumper999]

Re: Court claim issued by HSBC on a faulty DN & TN

So what I can make or understand is that if prejudice can be shown and proven then that would be another case.

The judgement does not give full details, still trying to get a copy. I would like to know, why did Brandon fail to make payments? what was his situation leading up to Amex issuing him with a DN?

Did Brandon make any contact or try to an agreement with Amex between being served with the DN and when Amex terminated his agreement?

I am sure we will get the full story one day, soon, but I do not think that this judgment should be based on everyone. Case by case on their own merit I believe is the way the court works, if it does not then I better surrender now.

6 Dec 10 is the appeal date I believe, have to see what happens.

[jumper999]

Re: Court claim issued by HSBC on a faulty DN & TN

Just piched this from a few websites,


The fact that a default notice is technically non-compliant will not necessarily invalidate the notice if it can be shown the borrower has suffered no prejudice as a result of the non-compliance.



In American Express Services Europe PE Limited v Brandon, Brandon failed to make payments on his credit card. AMEX served a default notice under s87(1) of the Consumer Credit Act 1974 (CCA). It required a minimum payment to be made "within 14 calendar days from the date of this default notice". No payment was made. AMEX ended the agreement and demanded the unpaid balance. Brandon's default also meant that late payment charges of £25 and over limit charges of £25 were applied to his account.
S88(2) CCA provides that a notice given after 1 October 2006 must give the debtor at least 14 days after service to remedy the breach. By s 176 CCA, a default notice is deemed served on a date it would be delivered in the normal course of the post. The notice here was served on 19 June 2007 and demanded that Brandon make payment within 14 calendar days from the date of the default notice. Service would have been deemed after 19 June and Brandon alleged the notice period was therefore too short, did not give the statutory period required, was therefore invalid and AMEX could not rely on it. He also alleged that the charges were penalties and therefore irrecoverable.


The court held that as AMEX did not take any further steps until 11 July 2007, Brandon had not been prejudiced by the technical breach. The default notice was therefore valid.
As to the default charges being penalties, the judge at first instance held that lenders do suffer loss when borrowers fail to make payment on time or go over the agreed limit and that default puts pressure on cash flow and reserves. He held that the charges applied here were a reasonable pre-estimate of loss and therefore recoverable. This was upheld on appeal.



THIS IS THE BIT I LIKE!!!!!!!!!!!


Things to consider
So long as no prejudice to the borrower can be shown, this judgment will be very useful in trying to persuade the courts that technical breaches should be overlooked. As a High Court decision this judgment will bind County Courts, although we understand that leave to appeal is being sought from the Court of Appeal.





Banking update: report and review on recent cases and issues

21.10.10


No prejudice to borrower

The fact that a default notice is technically non-compliant will not necessarily invalidate the notice if it can be shown the borrower has suffered no prejudice as a result of the non-compliance.


In American Express Services Europe PE Limited v Brandon, Brandon failed to make payments on his credit card. AMEX served a default notice under s87(1) of the Consumer Credit Act 1974 (CCA). It required a minimum payment to be made "within 14 calendar days from the date of this default notice". No payment was made. AMEX ended the agreement and demanded the unpaid balance. Brandon's default also meant that late payment charges of £25 and over limit charges of £25 were applied to his account.



S88(2) CCA provides that a notice given after 1 October 2006 must give the debtor at least 14 days after service to remedy the breach. By s 176 CCA, a default notice is deemed served on a date it would be delivered in the normal course of the post. The notice here was served on 19 June 2007 and demanded that Brandon make payment within 14 calendar days from the date of the default notice. Service would have been deemed after 19 June and Brandon alleged the notice period was therefore too short, did not give the statutory period required, was therefore invalid and AMEX could not rely on it. He also alleged that the charges were penalties and therefore irrecoverable.


The court held that as AMEX did not take any further steps until 11 July 2007, Brandon had not been prejudiced by the technical breach. The default notice was therefore valid.
As to the default charges being penalties, the judge at first instance held that lenders do suffer loss when borrowers fail to make payment on time or go over the agreed limit and that default puts pressure on cash flow and reserves. He held that the charges applied here were a reasonable pre-estimate of loss and therefore recoverable. This was upheld on appeal.

[Amethyst]

Re: Court claim issued by HSBC on a faulty DN & TN

Lol, don't worry we keep a good eye on who the VIPs are and if HSBC join, pay their £9, and start picking out anonymous redacted credit agreements to copy, we'd know, and really that's pretty desperate isn't it. The library is to help us lot. I spend sooooooo long on google trying to find T&Cs from a specific agreement or year of agreement ref charges and interest, it should make life a bit easier.

I think there is rather a lot of paranoia about tbh and seems daft not to make our own lives easier on the vague off chance a bank will find the forum, register, pay £9 for VIP and come across the library of agreements. (although now I;ve told everyone its there its minutely more likely lol)

[Angry Cat]

Re: Court claim issued by HSBC on a faulty DN & TN

Yes but anyone can join LB.pay their two quid and have a library of paperwork all laid out for them.

The difference between using google would be that all of LB's agreements etc would be neatly labelled with the dates etc. and would be far fewer in quantity and less vague than a random google search so much more accessible.

IMO

OC's and the DCA's have enough help from the courts without LB opening up a reference library for them!

Yes they can probably obtain the info from other sources but only with a great deal of effort and time which in most instances they are not prepared to spend,so let them do their own leg work!

Agree!

[jumper999]

Re: Court claim issued by HSBC on a faulty DN & TN

Jumper, if only, if only...

Maybe worth a go, that is something I will think about when all else fails, for my defence.

Re: Court claim issued by HSBC on a faulty DN & TN

Jumper, if only, if only...

[jumper999]

Re: Court claim issued by HSBC on a faulty DN & TN

TDS, please don't get me started else this whole thread will turn in to a comedy show, and when I get to court the judge asks me have you anything to say in your defence?

CAKE OR DEATH?

i'LL SAY I'LL HAVE THE CAKE YOUR HONOUR AND HSBC CAN HAVE DEATH

then the judge turns around and says

VERY WELL THEN, CAKE FOR YOU AND DEATH FOR HSBC


HA HAH HA!!!!!!!!!!!!!!!!

Re: Court claim issued by HSBC on a faulty DN & TN

Brilliant idea TDB,

Are you the debt star from Izzie izzard, death or cake? I love that so much,

Back to the topic, I was searching for the terms and conditions that are to do with my agreement in Jan 06, been trying to find it on HSBC website but no luck, will keep looking though.

I can remember some time ago someone posted up a cca agreement of their HSBC cca and it was exactly the same as my OH'S, but the one that I have been sent is not and the copy that HSBC sent to the FOS is so not my agreement that I don't know where to begin.

The copy of my cca that the FOS sent me is an application form, with a different account credit card number, and it has one of my current account numbers mixed with my cc account and the limit of credit stated is £6,500.00, it is so bizarre,

rofl Jumper. No, but I've just Googled the transcript!
"Hello. Look, I'm Lord Vader and just pay a-bloody-ttention, all right? Luke, Luke, the Force is strong with you."
"Is it?"
"Yeah."
"Well, who told you that?"
"Some bloke! Yeah, he said the Force was really rather strong with you."
"Well, how strong?"
"Uh, as strong as a small pony."
"Oooh, that's quite strong, that is."
------------------------------- merged -------------------------------

I know was kinda hoping some peeps would add agreements to it save me doing all the work

I have an AA one to post up!

That'll be Autombile Association Financial Services "AA", that is