Sparta v HSBC - No CCA available (acknowledged)

[Spartathisis]

Quick overview:

DSAR to HSBC 2011, queried a comment in file 'no credit agreement available', confirmed in writing 5 times by HSBC staff that they do not have a copy of CCA. Acc put into dispute until CCA provided, recon came through, blank application form no prescribed terms or any t & c's, HSBC stated account opened 'sometime in 1996', I was unemployed at the time they state they granted me a card, account was opened late 1980's in branch, no CCA, signature to prove I was me provided at the counter.

Now with DG Sols/Metropolitan/Credit Security (yes all 3 at the same time), lots of threats, but no action, have informed DG of all the problems HSBC have and given all case law and relevant references to back up. Awaiting reply from HSBC data controller on Section 10 notice, no agreement no data processing/charges/interest/ payments made in error (unjust enrichment).

I informed HSBC (through Metropolitan) that I would begin invoicing them for every letter I had to reply to and levy a monthly charge and interest for non-payment, I gave them the opportunity to state they did not agree to the terms, but that if they did not then they agreed to my t & c's. I have invoiced since and sent out a monthly statement to HSBC HQ. They finally replied and stated 'there is no agreement between HSBC and yourself, without a signed agreement HSBC are not liable for any charges, interest or payments forthcoming'. What I had hoped for, no agreement no liability.

Letter ping pong for ages now nothing for a couple of weeks, but I checked my credit file and the DN they sent and would like some help please. My credit file states the date of the DN as 5 months before the DN was sent out to me

Not sure if there is anything out of order or not. Looking at the amount to be repaid if the alleged breach is not remedied i.e. not the full amount they say is outstanding but only the overdue bit, does this mean that is all they expect to be paid? Yes it is from last year, but just checking to make sure it is valid, bearing in mind there is no agreement to be found (never signed one) and they sent a recon that had no prescribed t & c's. I have checked a couple of other older DN's from other CCC's and they all state the exact clause breached (eg 2.5 (i) ) & also state that the full amount is payable if the breach is not remedied, this DN does not state either.

no guidelines were included either.

3 images posted up here:
http://imgur.com/vfaSnVP,x7zZRvE,bLuUA5E

Thanks.

[FlamingParrot]

Re: Sparta v HSBC - No CCA available (acknowledged)

Quick overview:

DSAR to HSBC 2011, queried a comment in file 'no credit agreement available', confirmed in writing 5 times by HSBC staff that they do not have a copy of CCA. Acc put into dispute until CCA provided, recon came through, blank application form no prescribed terms or any t & c's, HSBC stated account opened 'sometime in 1996', I was unemployed at the time they state they granted me a card, account was opened late 1980's in branch, no CCA, signature to prove I was me provided at the counter.

I will take a look at the attachments but before moving on, you say you sent a DSAR and they said there is no CCA available, my question would be, did you ever send a s.78 CCA request? Because a SAR is a request under the Data Protection Act, not the Consumer Credit Act. You can't argue non compliance with s.78 of the CCA if you haven't sent such a request.

You say the account was opened in the LATE 80s, in which case they would still have to comply with a s.78 request, however, if it was pre-1985 then all they'd have to send is current T&Cs.

[Spartathisis]

Re: Sparta v HSBC - No CCA available (acknowledged)

Hi FP, no s.78 sent, but they have regularly insisted that they have complied with s78 by sending the recon (app form). No def after 1988 and before 1990.

Should I send a s78 request asap?

Thanks for the quick response.

[Spartathisis]

Re: Sparta v HSBC - No CCA available (acknowledged)

They insist acc was opened 'sometime' in 1996, the recon states 1/1/1996, but they have also stated mid 1996. 1996 was the time Access changed over to Mastercard at the Midland Bank.

[FlamingParrot]

Re: Sparta v HSBC - No CCA available (acknowledged)

Now with DG Sols/Metropolitan/Credit Security (yes all 3 at the same time), lots of threats, but no action, have informed DG of all the problems HSBC have and given all case law and relevant references to back up. Awaiting reply from HSBC data controller on Section 10 notice, no agreement no data processing/charges/interest/ payments made in error (unjust enrichment).

I informed HSBC (through Metropolitan) that I would begin invoicing them for every letter I had to reply to and levy a monthly charge and interest for non-payment, I gave them the opportunity to state they did not agree to the terms, but that if they did not then they agreed to my t & c's. I have invoiced since and sent out a monthly statement to HSBC HQ. They finally replied and stated 'there is no agreement between HSBC and yourself, without a signed agreement HSBC are not liable for any charges, interest or payments forthcoming'. What I had hoped for, no agreement no liability.

DG Solicitors and Metropolitan are all part of HSBC: http://www.legalbeagles.info/forums/...340#post200340

The agreement they are referring to has nothing to do with the credit agreement you would have had with them, what they are saying is that they haven't agreed to your charging them for your correspondence, anyone could send an invoice to another party and demand to be paid, for example, I could re-design your website and send you an invoice for my services, but if you haven't agreed to have your site redesigned by me, how could I expect to be paid? :confused2:

Letter ping pong for ages now nothing for a couple of weeks, but I checked my credit file and the DN they sent and would like some help please. My credit file states the date of the DN as 5 months before the DN was sent out to me

When did you actually default on the account? A default notice under s.87/88 of the CCA is not the same as recording a default with the CRAs. Although it does sound a bit strange, having a default recorded EARLIER actually works in your favour - the sooner it's recorded the sooner it will vanish off your file. Most people complain of defaults being recorded TOO LATE. :thumb:

Not sure if there is anything out of order or not. Looking at the amount to be repaid if the alleged breach is not remedied i.e. not the full amount they say is outstanding but only the overdue bit, does this mean that is all they expect to be paid?

A Default Notice should only ask you to pay the amount that's in arrears at the time it's issued, not the full balance. A faulty DN could help a defence if the creditor was to issue a claim but, in itself, is not a reason to put the account in dispute. On the contrary, it's best to keep this ace up your sleeve and not inform them of anything where they may have gone wrong. :wink:

Regardless of what they've provided you with through your SAR, you should definitely send a proper CCA request under s.78 of the CCA if you haven't done so. I did the same with MBNA who also said they could not retrieve my agreement when I sent a SAR, I sent a CCA request and they replied saying it wasn't available. This was over 3 years ago and I haven't heard from them in nearly 2 years.

[FlamingParrot]

Re: Sparta v HSBC - No CCA available (acknowledged)

Hi FP, no s.78 sent, but they have regularly insisted that they have complied with s78 by sending the recon (app form). No def after 1988 and before 1990.

Should I send a s78 request asap?

Thanks for the quick response.

Yes, definitely. They are obviously jumping the gun by arguing compliance with something you haven't even requested! :lol:

Do take a look at this: http://www.legalbeagles.info/forums/...333#post347333

[FlamingParrot]

Re: Sparta v HSBC - No CCA available (acknowledged)

CCA request, send recorded delivery with a PO for £1, sign using a computer font rather than your real signature. They have 14 days to respond.

Dear Sirs

Account No: xyz

I hereby formally request a copy of my Consumer Credit Agreement, pursuant to s.77-79 of the Consumer Credit Act 1974 (CCA1974).

If it is your view that you are not the creditor, s.175 of the CCA1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties. Your attention is drawn to ss.5(2), 3(b), 6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

The OFT has stipulated that 'sections 77-79 of the Consumer Credit Act 1974 outline the information creditors must provide to debtors under fixed-term, running account & Hire Agreements'. Under these sections a debtor can pay £1 to get:

• a copy of their agreement
• copies of some of the other documents mentioned in their agreement
• a statement of account

If this information is not provided within 12 working days the debt becomes unenforceable. This means a creditor cannot:

• make the debtor pay the debt before they're supposed to
• get a court judgment against the debtor

In line with the above, please find attached my £1 payment, which is the statutory fee - note that these funds are not to be used for any other purpose. I look forward to hearing from you within the statutory time limit (12 + 2 days).

Yours faithfully,

[Spartathisis]

Re: Sparta v HSBC - No CCA available (acknowledged)

Brilliant, thank you.

Allegedly defaulted June 2011, on CRA file Dec 2011, DN rcvd 30/5/12

On the DN, so the breach is remedied by paying overdue amount by xx date, but if you dont remedy then they only ask for that same amount to be paid immediately? I have looked at 2 old DN's and both ask for the full amount to be paid imm if the breach is not remedied.

I am easily confused

CCA request to Data Controller, Metropolitan, DG?

[pt2537]

Re: Sparta v HSBC - No CCA available (acknowledged)

Quick overview:

DSAR to HSBC 2011, queried a comment in file 'no credit agreement available', confirmed in writing 5 times by HSBC staff that they do not have a copy of CCA. Acc put into dispute until CCA provided, recon came through, blank application form no prescribed terms or any t & c's, HSBC stated account opened 'sometime in 1996', I was unemployed at the time they state they granted me a card, account was opened late 1980's in branch, no CCA, signature to prove I was me provided at the counter.

Now with DG Sols/Metropolitan/Credit Security (yes all 3 at the same time), lots of threats, but no action, have informed DG of all the problems HSBC have and given all case law and relevant references to back up. Awaiting reply from HSBC data controller on Section 10 notice, no agreement no data processing/charges/interest/ payments made in error (unjust enrichment).

I informed HSBC (through Metropolitan) that I would begin invoicing them for every letter I had to reply to and levy a monthly charge and interest for non-payment, I gave them the opportunity to state they did not agree to the terms, but that if they did not then they agreed to my t & c's. I have invoiced since and sent out a monthly statement to HSBC HQ. They finally replied and stated 'there is no agreement between HSBC and yourself, without a signed agreement HSBC are not liable for any charges, interest or payments forthcoming'. What I had hoped for, no agreement no liability.

Letter ping pong for ages now nothing for a couple of weeks, but I checked my credit file and the DN they sent and would like some help please. My credit file states the date of the DN as 5 months before the DN was sent out to me

Not sure if there is anything out of order or not. Looking at the amount to be repaid if the alleged breach is not remedied i.e. not the full amount they say is outstanding but only the overdue bit, does this mean that is all they expect to be paid? Yes it is from last year, but just checking to make sure it is valid, bearing in mind there is no agreement to be found (never signed one) and they sent a recon that had no prescribed t & c's. I have checked a couple of other older DN's from other CCC's and they all state the exact clause breached (eg 2.5 (i) ) & also state that the full amount is payable if the breach is not remedied, this DN does not state either.

no guidelines were included either.

3 images posted up here:
http://imgur.com/vfaSnVP,x7zZRvE,bLuUA5E

Thanks.

Hi,

I dont mean to sound rude, but you dont have a hope in hell of recovering monies paid under a mistake in these circumstances.

I did run a claim on this point where there was a proven unenforceable agreement, it had the credit misstated so it was unenforceable. My client won at the first instance, the Claimant appealed, and won only on the point of recovery of monies.

The Consumer Credit Act 1974 states quite clearly the only sanctions for breach of the act, are those set out within the Act.

Dont forget that a debtor can consent to enforcement of a unenforceable CCA, chances are the Court would view this as a voluntary payment by consent.

I dont think you will be successful with restitution.

[FlamingParrot]

Re: Sparta v HSBC - No CCA available (acknowledged)

Brilliant, thank you.

Allegedly defaulted June 2011, on CRA file Dec 2011, DN rcvd 30/5/12

When was your first missed payment? Not that it matters much that you were defaulted early, it only helps you clear your file quicker, but it obviously matters in terms of the Statute of Limitations. :thumb: Were you in a DMP, an arrangement or making token payments for a while? Or did you just stop paying altoghether?

On the DN, so the breach is remedied by paying overdue amount by xx date, but if you dont remedy then they only ask for that same amount to be paid immediately? I have looked at 2 old DN's and both ask for the full amount to be paid imm if the breach is not remedied.

When they issue a DN they should only ask you to pay the arrears by a certain date and, looking at yours, there does seem to be enough time (14 days + service). They can't ask you to pay the full balance at that point, but if you don't remedy the breach by paying up the arrears, then they can demand the full balance.

CCA request to Data Controller, Metropolitan, DG?

The Data Controller is only for the purpose of the DPA 1998 thus used for SARs. The CCA request should go to whoever is writing to you making demands of payment. We know Metropolitan is part of HSBC but as they are the ones contacting you, send it to them. Big financial in$titution$ are not known for efficient internal communications, :grin: let them pretend to go back to HSBC to get the documents who in turn will have to go to their dead archives in Outer Mongolia to get a copy of the alleged agreement. :flypig: :flypig: :flypig:

[Spartathisis]

Re: Sparta v HSBC - No CCA available (acknowledged)

PT, no offence taken. Looking through some of the more recent cases quoted in Goff & Jones: The Law of Unjust Enrichment (formerly The Law of Restitution), it keeps me out of trouble and off the streets.

There was no CCA in the first place, no agreement, no prescribed terms, no terms & conditions, no 'you must pay each month'. I paid balances off each month on receipt of a statement until I discovered that there was no contractual requirement for me to do so, I made a mistake in making the payments, the 'goods' purchased on the card were a 'gift' ? If there was no CCA then surely any sanctions are not limited by the contents of the CCA 1974?

All hypothetical at the moment of course.

All comments and observations are welcome thanks.

[Spartathisis]

Re: Sparta v HSBC - No CCA available (acknowledged)

When was your first missed payment? Not that it matters much that you were defaulted early, it only helps you clear your file quicker, but it obviously matters in terms of the Statute of Limitations. :thumb: Were you in a DMP, an arrangement or making token payments for a while? Or did you just stop paying altogether?
Last payment June 2011 once they had confirmed they had no CCA, up to that point I had managed to make minimum payments.

When they issue a DN they should only ask you to pay the arrears by a certain date and, looking at yours, there does seem to be enough time (14 days + service). They can't ask you to pay the full balance at that point, but if you don't remedy the breach by paying up the arrears, then they can demand the full balance.

What about them asking for the amount of £1069.10 to be paid imm if I do not remedy the breach? This is not the full amount only the overdue amount. It should be the full amount £6k+, yes? The amount to be repaid imm is the bit that confused me, as I had read that it is the full balance to be repaid, but they dont ask for that.

The Data Controller is only for the purpose of the DPA 1998 thus used for SARs. The CCA request should go to whoever is writing to you making demands of payment. We know Metropolitan is part of HSBC but as they are the ones contacting you, send it to them. Big financial in$titution$ are not known for efficient internal communications, :grin: let them pretend to go back to HSBC to get the documents who in turn will have to go to their dead archives in Outer Mongolia to get a copy of the alleged agreement. :flypig: :flypig: :flypig:

Okikoki, thanks.

[pt2537]

Re: Sparta v HSBC - No CCA available (acknowledged)

PT, no offence taken. Looking through some of the more recent cases quoted in Goff & Jones: The Law of Unjust Enrichment (formerly The Law of Restitution), it keeps me out of trouble and off the streets.

There was no CCA in the first place, no agreement, no prescribed terms, no terms & conditions, no 'you must pay each month'. I paid balances off each month on receipt of a statement until I discovered that there was no contractual requirement for me to do so, I made a mistake in making the payments, the 'goods' purchased on the card were a 'gift' ? If there was no CCA then surely any sanctions are not limited by the contents of the CCA 1974?

All hypothetical at the moment of course.

All comments and observations are welcome thanks.

The Court of Appeal in the case of Arrow Global vs Devlin (unreported) would disagree with you im afraid.

Unfortunately in my view, not withstanding Goff, that your point will fly like a Dodo.

Perhaps obtaining a copy of Goode, Bennion or Lloyd would assist you. I have all three commentaries on the CCA.

[Spartathisis]

Re: Sparta v HSBC - No CCA available (acknowledged)

Does the fact that there were late payment charges in the remedy amount have any bearing? There is no agreement so no information of charges/interest/late payment fees etc.

[Spartathisis]

Re: Sparta v HSBC - No CCA available (acknowledged)

Can someone point me in the direction of cases (names, I will find them myself) relating to creditors ability to have another 'bite of the cherry' in relation to correcting a defective DN?

Thanks