Rules around statements question

[Robesco]

Original debt type: HSBC credit card
Date commenced: Unknown, circa 2006 / 2007
Credit limit £8050
Current Arrangement: DMP via StepChange since 2009(ish), previously self managed DMP since early 2008
Date last full payment paid: Unknown, sometime before 2008
Date defaulted on credit file: Unknown
Account owner: Still with HSBC, has never been sold.
Managed by: Westcot
Current balance £4550

Hi,

Just going through some paperwork to CCA request HSBC (not holding our much hope on this one being UE as it has never been sold) but noticed I have not had a statement of account from either HSBC or Westcot for years. Up to 2014 I had lots of letters from HSBC about reduced payments, stopping interest etc that showed the total balance but not a statement of account. Since 2014 I have had one letter from Westcot in 2017 and one in 2018 offing a reduced F&F but again no annual statement.

I recall seeing somewhere in the forums ref unenforceable agreements about statements. Can anyone explain the rules around what HSBC should be sending and if this puts them in breach of anything?

Thanks

[Roger]

HSBC CC debt since roughly 2005
Managed by Wetscot since 2014
Paying through StepChange DMP for years

Hi,

Just going through some paperwork to CCA request HSBC (not holding our much hope on this one being UE as it has never been sold) but noticed I have not had a statement of account from either HSBC or Westcot for years. Up to 2014 I had lots of letters from HSBC about reduced payments, stopping interest etc that showed the total balance but not a statement of account. Since 2014 I have had one letter from Westcot in 2017 and one in 2018 offing a reduced F&F but again no annual statement.

I recall seeing somewhere in the forums ref unenforceable agreements about statements. Can anyone explain the rules around what HSBC should be sending and if this puts them in breach of anything?

Thanks

The CCA 1974 (Consumer Credit Account) is very comprehensive and there have been variations over the years.
The CCA S.78 Request plus £1 is the Consumers Right in Law to have a copy of the Credit Agreement. Whilst this request is outstanding the Debt is Unenforcible.
There are other reasons for UE as well However it is better if you can Create a Diary entry which is the AAD way.
The Diary approach also assists you in maintaining proper records and where there are gaps in the history of the debt investigating these.

Read the following useful guide on how to send Niddy agreements:--->

Sending your Agreement to AAD

To help please provide the following information for each account:

• Type of account (credit card/loan)
• Date commenced (ideally before Apr 2007)
• Approx balance
• Date last paid (approximate date you last made a FULL payment)
• Are you on arrangement or not paying
• Status (default/in arrears/up-to-date)
• Account owner (who is writing to you, a DCA or the lender)

Providing the above information, for each account helps the MODS with suggestions and advice.

[Robesco]

Hi and thanks for the reply. I have edited post #1 to diary entry format.

Thanks to AAD I am familiar with issuing CCA and SAR requests now and have done it for most creditors (6/9 so far have confirmed UE) however in this instance I didn't want to CCA or SAR HSBC and potentially highlight to them that they have failed to send statements for 4-5 years if this is potentially UE or in breach of any other legislation already.

I'm not sure if I should still CCA them or take some other action?

Thanks

[Roger]

Thank you.
OK so they haven't sold this!

I would have thought that this had been reported to the Credit Agency's years ago and fallen off (after 6 years) .
Once debts have been reported they can't be reported again!
In your Case I can't see that whatever you do here from now on will impact on your Credit Rating!

Whilst you are still paying you are restarting the Statute Bar Clock (in this case 6 years from your last payment!) they have had 10 years of payments from you haven't they?

Unless others think otherwise send a CCA S.78 plus £1, and cancel your payments, see what happens!

[The Tech Clerk]

CCA Request if needed

[Joanna Connolly Solicitors]

in this instance I didn't want to CCA or SAR HSBC and potentially highlight to them that they have failed to send statements for 4-5 years if this is potentially UE or in breach of any other legislation already.

I'm not sure if I should still CCA them or take some other action?

I'll reply tomorrow when I've looked at the history of this debt on your other thread (will I find the history there?).

You're right to be cautious about sending a s78 CCA Request and/or a SAR until the legal position is clear.

I also think you may be referring to NOSIA (Notice of Sums in Arrears) which renders the account unenforceable if these have not been served. You've implied this may have been the situation for the last 4 - 5 years.

My instant reaction (which may change tomorrow when I've looked at the history of this debt) is to suggest you do nothing which could encourage HSBC to remedy any failed/breached statutory duties.

Di

[Robesco]

I'll reply tomorrow when I've looked at the history of this debt on your other thread (will I find the history there?).

Hi, This is the only thread with the history of this account and the entries in post #1 above. If there is anything missing I'll of course fill in the blanks. Just for background, I'm not sure this account has ever defaulted. It definitely has never been sold. I have a copy of a letter from May 2008 threatening default if I didn't get in contact but as a result of that letter I went on a self managed DMP with them. I don't have any record of an actual default and no way of finding out without a SAR. Having been on a DMP with them since 2008 it must be in arrears though.

Having a brief look at NOSIA, yes that is what I was referring to.

Thanks

p.s. I have only just realised the difference between a new thread and a new post so when i was asked to put each debt into new posts I did new threads instead. Noob error!

[Joanna Connolly]

Annual Statements are required under S.77A of the Consumer Credit Act 1974 for loan and hire purchase agreements. If the creditor does not comply then they lose the rights to interest and default sums while in breach and the agreement is unenforceable. Once they comply the agreement becomes enforceable again but they have still lost the right to the interest and default sums for the period they were in breach.

Credit cards are known as running account agreements and their statements come under s.78(4) of the Consumer Credit Act 1974. However there is no provision making the agreements unenforceable if the s.78(4) statements have not been served.

For Notices of Sums in Arrears under S.86B or S.86C of the Consumer Credit Act 1974 to apply there must be 2 missed full monthly payments (or 4 weekly payments) after 1st October 2008 when the new rules came into effect. If you were defaulted before that date then NOSIA's will not be applicable.as the full balance will already have been called up.

[Robesco]

Thank you. So they are required under the to provide these statements but it doesn't make it UE if they don't.

I'll send the SAR and CCA requests and see what happens. If they find the agreement (which I think they might) I'll use the SAR to find out when it defaulted. If it was after 1st October 2008 I'd need to look at NOSIA but again I don't think it will be as I entered into a DMP with them in April 2008. Assuming everything is fully enforceable after all that I might write a complaint ref. failing to provide statements as per CCA s.78(4). You never know, they may offer a goodwill gesture of some kind which will reduce the bill if nothing else.

Thanks to everyone for the replies.

[Roger]

Thank you. So they are required under the to provide these statements but it doesn't make it UE if they don't.
I'll send the SAR and CCA requests and see what happens. If they find the agreement (which I think they might) I'll use the SAR to find out when it defaulted. If it was after 1st October 2008 I'd need to look at NOSIA but again I don't think it will be as I entered into a DMP with them in April 2008. Assuming everything is fully enforceable after all that I might write a complaint ref. failing to provide statements as per CCA s.78(4). You never know, they may offer a goodwill gesture of some kind which will reduce the bill if nothing else.
Thanks to everyone for the replies.

I'll reply tomorrow when I've looked at the history of this debt on your other thread (will I find the history there?).

You're right to be cautious about sending a s78 CCA Request and/or a SAR until the legal position is clear.

I also think you may be referring to NOSIA (Notice of Sums in Arrears) which renders the account unenforceable if these have not been served. You've implied this may have been the situation for the last 4 - 5 years.

My instant reaction (which may change tomorrow when I've looked at the history of this debt) is to suggest you do nothing which could encourage HSBC to remedy any failed/breached statutory duties.

Di

Jo has very kindly given you a resume on the legal background especially for NOSIA.

I would wait for Di's reply!!!

[Joanna Connolly Solicitors]

I'll send the SAR and CCA requests and see what happens. If they find the agreement (which I think they might) I'll use the SAR to find out when it defaulted. If it was after 1st October 2008 I'd need to look at NOSIA but again I don't think it will be as I entered into a DMP with them in April 2008

I've looked again at your other thread which you started at the beginning of last month and have been busy formulating an overall strategy for dealing with your debts after over a decade in a DMP with StepChange.

After kicking around some ideas with the forum members you have decided to stop your DMP and start to go down the unenforceability route since you have already have had confirmation that six of those nine debts are currently unenforceable (this is good news ).

I have CCA'd the majority of creditors and so far 6/9 have written back to say the debt is UE. I have received some SAR responses and more are pending so I am getting a picture of who lent what / when. I am delighted about the UE response so far and will soon tell StepChange to stop my DMP but that really doesn't satisfy me. I know I was irresponsible and have done my upmost to repay what I (allegedly) owe but the banks were also irresponsible. I have been through 15 years of hell and been pushed to the point of being suicidal so many times. I have lost my home, damaged relationships and lived in poverty trying to repay what they irresponsibly lent and the banks should have to answer for some of that.

This debt is still with HSBC (unless I've misunderstood) and you're anxious that sending a CCA Request may upset the apple cart. I see no reason why you shouldn't now send a CCA Request as this will let you know whether HSBC have the credit agreement or not. Sometimes the original creditor will assign (sell) a debt once they realise they may have a problem with historical documentation.

I wouldn't send the SAR just yet.

Di