In 2023, Miss M asked HSBC to produce the Consumer Credit Act(CCA) agreements for her debts.
If a creditor cannot produce the CCA agreement for a relevant debt, the debt is unenforceable in court and the consumer can stop paying it. The older a debt is, the less likely it is that the CCA agreement can be found. Miss M’s debts were very old.
Asking for the CCA agreement is a simple procedure in most cases:
- there is a set form of words to use, see How, When and Why to ask for the CCA agreement which has a link to the template;
- if the creditor produces a copy of the CCA agreement, the debt can be enforced in court. So if the customer doesn’t want to get a CCJ, they need to make a payment arrangement with the creditor;
Miss M asked for CCA agreements for other old debts had been sold to Cabot, Link and Lowell. These were all resolved within a few months: the CCA agreements couldn’t be produced, the creditor accepted the debt was unenforceable and Miss M stopped paying.
HSBC had not sold Miss M’s debt, so the CCA request went to HSBC. This request took more than a year and had to go to the Financial Ombudsman. This is the story of what happened and why HSBC has had to pay compensation.
What HSBC said when asked for the CCA agreements
When a creditor can’t produce a CCA agreement, they normally reply saying that, and that the debt is unenforceable.
But HSBC replied that they couldn’t produce the CCA agreements as the debts were so old, but Miss M remained legally liable for the debts.
It is quite true that the debts still legally exist. And as Miss M had been paying them they could not be statute barred, so Miss M was legally liable for them. But that is not relevant to whether the debt is enforceable in court or not.
This what is known as a “straw man” argument. Rather than reply to Miss M’s question about whether the debt was enforceable, HSBC was choosing to reply to a question it had not been asked – is Miss M liable for this debt.
Mis M asks HSBC again
Miss M tried again, going back to HSBC asking them to confirm that the debts were currently unenforceable. She quoted the FCA’s rules on this, which say:
CONC 13.1.6
(1) Failure to comply with the provisions [to produce the CCA agreement] means that the agreement becomes unenforceable while the failure to comply persists, and the courts have no discretion to allow enforcement.
(2) In such cases, a firm should in no way, either by act or omission, mislead a customer as to the enforceability of the agreement.
HSBC again ignored this request about enforceability. They replied:
Due to the time passed there is limited information available. I’m unfortunately unable to locate the original agreement for both accounts. As you are liable for the debt, we would pursue any outstanding balance on accounts with us until the debt has been settled.
Miss M felt this was threatening so she had to keep on paying these debts. But she sent the complaint to the Financial Ombudsman (FOS).
The FOS adjudicator agreed with HSBC
The FOS adjudicator decided:
In line with their data retention policy, HSBC only retain most data for six years. As such, HSBC haven’t been able to provide the documentation Miss M requested as they no longer hold it. This itself wouldn’t invalidate the debt. And as I’ve seen no evidence to show it isn’t enforceable, I don’t feel that HSBC have acted unfairly.
To a debt adviser, this was getting silly. HSBC can’t produce the CCA agreement. The FCA rules point out that if the CCA agreement is not produced, a court cannot decide the debt is enforceable – the fact that HSBC followed its GDPR procedures is irrelevant. What is the point of the FCA’s CONC 13 rule if a firm can just say, oh it’s an old debt so we got rid of it?
So Miss M asked for the complaint to go to an Ombudsman for a final decision.
The Ombudsman upholds Miss M’s case and order compensation
Here is the Ombudsman’s final decision.
At first. HSBC gave the Ombudsman the run-around…
Initially, I asked our investigator to contact HSBC to specifically check whether the debts remained enforceable in court or not. HSBC’s response simply reiterated its view that Miss M remains liable.
But the Ombudsman persevered:
When I went back to HSBC directly, the query was referred to its legal team. At that point, HSBC responded and confirmed that, in the absence of the credit agreements for the credit card, current account and loan, it would be unable to take legal action to enforce the debts. HSBC also confirmed that no such action was planned and reiterated an outstanding balance remains.
At last HSBC has admitted that without the CCA agreement, it is unable to take Miss M to court.
The Ombudsman noted that the length of time HSBC had taken to confirm its stance on enforceability had been distressing for Miss M and ordered £250 compensation. Miss M also provided evidence showing that she had ceased payments to other creditors when they said the debts were unenforceable – so the Ombudsman also ordered a refund of the £341 Miss M had paid to HSBC since last summer.
A good result in the end!
Ask for the CCA agreement for old debts
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Maria says
I once requested a copy of CCA Agreement from a creditor. My dispute at the time was that they had not made me aware of certain things when I had signed the agreement and needed to prove this.
By the time they had sent me the copy, I had found the original signed copy in a box in my loft. When I compared the two, on the new ‘copy’ they sent me, they had added the wording that I had claimed they had omitted to inform me about when I signed the agreement. Because I also had the original I could prove that they had altered the agreement after I had signed it-which is illegal. I challenged them on this and received a lengthy apology and significant compensation as well as a refund for the product I was enquiring about in the first place. Always worth checking this if you are at all able to – I had assumed that companies would not risk altering their own paperwork but I was wrong.
Sara (Debt Camel) says
who was the lender?
Maria says
The finance was for a car – the finance was provided by Black Horse but it was the dealer (Car Giant) who provided me with the altered documents. I had claimed they hadn’t informed me that my car was still under manufacturers warranty-and so they had sold me an additional (and pointless warranty).
On the altered documents they had added the working, along the lines of ‘customer has been informed of any existing warranties’ and then in had my signature at the bottom of the page.
This was about 10 years ago now.
Sara (Debt Camel) says
Thanks for those details. I haven’t heard of a case like that.
Richard Stiles says
When I went to a court hearing on behalf of my son and I asked the judge for a copy of the signed agreement he said and here are “waving his hand we’ve dealt with that
In a previous hearing I had requested that there be a copy of the transcript of all hearings the judge said you don’t want to do that it’ll cost you a lot of money at the final hearing after I had contact the transcription company they said the court had sent down a blank tape
Sara (Debt Camel) says
It isn’t normally necessary to produce a signed copy of the agreement.
Richard Stiles says
When you say it isn’t necessary to produce a signed copy of the agreement what about just producing a copy of the agreement also when the debt has been sold to a third-party am I right in thinking that they the third-party have to produce an agreement of some sort I noticed that you make no comment on the transcription Request and the court sending down a blank tape to the transcription company
Sara (Debt Camel) says
I didn’t want people to think that a creditor has to produce a credit card agreement, taken a couple of years ago, with a “wet ink” signature on it – they don’t.
When a debt has been sold, you ask the new creditor to produce the CCA agreement.
I can’t comment on a court case I know nothing about.
Justin says
Can I ask if an alleged debt has not been sold on and is still with the original lender due to vulnerability issues – what is considered a old or very old debt? We are talking 2016 here when default registered on my credit files, i was making token payments untill about 2 years ago.
Justin
Sara (Debt Camel) says
what sort of debt was it? When was the account opened?
who is the lender? Was there any particular reason the debt may not have been sold?
Justin says
It is a credit card debt. Opened in 2012/2013 I believe. They advised they would not sell it on /outsource it due to my vulnerabilities
Sara (Debt Camel) says
and after you stopped making token payments, you haven’t been contacted?
Justin says
Not directly I had a health condition diagnosed, and applied to get the balance written off but they declined. Based on my financial circumstances they say they are not expecting payments to me made. I have asked over the phone if the debt is enforceable but they just state what the balance is – should I ask the question in writing or just wait and see what happens?
Oh and it is Barclaycard, I have had other debts written off
Sara (Debt Camel) says
I am sorry to hear that – can I ask if your health condition is likely to change?
Justin says
No very unlikely to change.
Sara (Debt Camel) says
Barclaycard may well have the CCA.
My suggestion would be to let a sleeping creditor lie… if they pop back up you can ask them again to write off the debt. If they refuse, you can take that to the Financial Ombudsman.
But there seems a chance this will just drift on with nothing happening and eventually become statute barred.
Dean Russell says
My understanding is that the creditors do not have to provide the original agreement, a copy will suffice
Sara (Debt Camel) says
That is correct. My article https://debtcamel.co.uk/ask-cca-agreement-for-debt/ goes into more detail
isp001 says
Why is this a good result? It looks like she recognises she borrowed the money, was capable of repaying, and just tried to use some technicality to cheat the bank.
Sara (Debt Camel) says
It isn’t a technicality, it is a pretty basic consumer protection written into the Consumer Credit Act.
More generally, if you want to sue to someone for some breach of contract, you are expected to be able to produce the contract!
david says
This is most timely. I’m taking to Lowell right now about two old debts. They say they cannot provide the CCA but that the debt is still enforceable as it has not become statute barred. The straw man tactic. So I have asked them to talk to their legal team and specifically “Would they take me to court to recover the debt without the presence of the CCA to demonstrate the existence of a contract?” I await their response.
Sara (Debt Camel) says
Have they actually said it is enforceable or just that you are still liable for it?
david says
They said it is still enforceable (in a very long telephone conversation with references to a manager above and their complaints team), so I have asked my question in writing – email.
Dan says
After a lengthy process requesting CCA with link who for 12 months admitted the debt was unenforceable I finally received some reconsituted CCA agreements direct from the original high street bank lender, I’m not a expert but they looked really bad to the point where they didnt even have my correct full name on them and the two different address on the documents are places I’ve never lived and can obviously prove this. Link were now saying the debt is now enforceable I challenged this again and even highlighted why I believed they still hadn’t carried out my section 78 request, that was 5 and half years ago. Still haven’t had a reply. Stop paying the debt in 2018.
I also took them to the financial ombudsman service as during the 12 months in 2018 when they admitted the debt was unenforceable I had a chase call from a agent trying to collect the debt ! I was awarded £100 compensation.
Lynn says
I might be a bit mistaken but I’m with Stepchange on a DMP. I’ve noticed my old debts have all been solded on to other companies, I’m wondering if any of the above would have an effect on my debt? I’ve paid half of it off, but it’s like a noose around my neck ! Is there anything I can do?
Sara (Debt Camel) says
how long has your DMP been running? How much do you still owe and what are you paying a month?
Lynn says
My DMP has been going since 2017, I owe £9684.28, I currently pay £48.00 a month. I won’t be debt free or clear until 2041. It’s really getting me down.
mohamad says
just opened a new account with HSBC bank account whom i had credit card debt 17 years ago dont know if the debt was sold to thitd party or had a ccj on it no contact made between me and HSBC during this time
can HSBC USE RIGHT TO SET OFF from new account to cover debt
Sara (Debt Camel) says
As you don’t know what happened to the debt, it would be hard for anyone to give a 100% confident answer. Try asking National Debtline on 0808 400.
or just bank with someone else if you are worried?