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Cheers

Michael

Cheque in full & final now received - lovely old job

Thanks for your help along the way Martin

Cheers

Michael

After FOS involvement, got a letter from Tesco saying they'd reviewed & uphold the complaint - now offering full amount of transaction + report costs

Only issue is that they want to credit it to the credit card account when the transaction was paid off months ago and this would now result in a credit balance on the card - replied wanting the refund in a cheque.....waiting to hear back!

Cheers

Michael

Decided I couldn't be bothered with another letter to Tesco & associated Special Delivery costs (finding things going missing under "Signed for" these days), so rang the FoS - they're going to write to Tesco to get them to reconsider and issue a final response, then we can progress

Cheers

Michael

Yes you can, in just the same way as your other creditors.

In fact, have just done this myself - I rang up the court and they advised to write to the creditor owning the CCJ.

I did so, and the creditor wrote to the court advising that it should be marked as satisfied as it was included in the BR.

Next thing I know, the court writes to me advising that the CCJ is cancelled and I then find that it has been completely removed from all my credit files and the registry trust - much better than I expected. To be honest I only expected it to be marked as satisfied, the rest was a bonus

Cheers

Michael

Well s75 is not an automatic right,and of course the amount of the refund is negotiable because the right to be reimbursed is conditional, not absolute.

Interesting - how do you mean "not automatic" & "conditional"?

Yes the FOS route could take time,but dont be confused by their backlog of PPI complaints-this is likely to be handled quite timely.

Ah right, I was being influenced by the old bank charges/PPI timescales...

For the purpose of clarity to Tesco-no harm in informing them that you are rejecting their offer,and will escalate it to the FOS,and that they will doubtless be requesting copies of your correspondence to resolve,which you will be making available to them.

Duly noted, thanks

Cheers

Michael

So yes-they have made a full and final offer,which falls short of the amount that you should be entitled to-this should enable you to escalate it with the info that the FOS would want to see.

There is that - but should I at least reject that and give them one final opportunity?

(I'm only mindful that involving the FOS is likely to take more time)

I'm not in any doubt that Dell's failure under SOGA renders Tesco jointly liable under s75 CCA, but is there any reason at all to consider anything less than a full refund?

Cheers

Michael

Well, we have a reply, so here's my update....

We wrote to Tesco saying:

Thank you for your letter of 29th June 2011, the contents of which are noted. I thank you for your explanation of the operation of s.75 Consumer Credit Act (1974), which I was already aware of. To clarify - the breach of contract by the retailer in this case is the fact that the laptop is not of satisfactory quality as required by the Sale of Goods Act (1979) as amended. This is evidenced by the fact that the laptop has developed a major display fault within the first six months since purchase.

I have reported the problem in a timely fashion to both yourselves and DELL and, under the Sale of Goods Act (1979) as amended, if goods break within the first six months after purchase then there is a presumption the goods were faulty when sold. In light of this, I do not believe that it is “necessary” to provide you with an independent report/repair estimate – however, in the interests of bringing this to a speedy resolution, I have obtained said report & estimate from xxxx (a local and reputable PC/peripheral repair company). The cost for this service was £42.00 (inc VAT) and this must be refunded in addition to the original £349.00 purchase price, now making a total of £391.00.

 

I should note that the cost/ability of repair has absolutely no bearing whatsoever on this claim – given the problem at hand and my dealings and interactions with DELL, I have no faith that: i) they are aware of their obligations under the Sale of Goods Act (1979) as amended; ii) they are able to arrange and/or keep to a convenient engineer appointment without inconveniencing myself; iii) any repair will be long-lasting; or iv) the laptop will not develop further major faults during a reasonable period of expected trouble-free operation.

The summary of the problem was included in my previous letter, to assist you further, I have attached the following correspondence, indexed chronologically as follows:

**list of enclosures**

Should you refuse to refund the purchase transaction under s.75 Consumer Credit Act (1974), please provide me with a final/”deadlock” letter detailing your refusal in order that I may escalate my complaint to the Financial Ombudsman Service forthwith. However, if this is your intent, I would draw your attention to item 93/10 in Issue 93 of “Ombudsman News”, available at the following page: http://www.financial-ombudsman.org.uk/publications/ombudsman-news/93/93-electrical-appliances.html

 

I look forward to your response within 14 calendar days of receipt of this letter

And Tesco have replied with (grammar and punctuation exactly as laid out below):

Than {sic} you for your recent communication concerning the dispute with Dell, the contents of which have been noted.

 

Having reviewed your dispute in detail, I see that your claim relates to the Sales of Goods Act (1979). I must point out that the Bank cannot be held liable under this Act however, it can be held liable for a breach of contract or misrepresentation under Section 75 of the Consumer Credit Act 1974.

 

With this in mind, the Bank is required to put you back in the same position as if the breach had not occurred, in this case, I believe that this would require the Bank to arrange to pay for the repairs of £125.00 plus VAT and the cost of the report.

 

I am therefore now in a position to offer you the sum of £192.00, this offer is made in full and final settlement of any claim you may have against Tesco Bank. It is also made on a without prejudice basus and is not to be referred to in any legal proceedings that may follow.

 

Should this offer be acceptable to you, please sign at the foot of this letter, where indicated, and return the whole of this letter to me. Arrangements will then be made to apply the credit to your account. However, should you have any doubt as to your options then I would suggest that you seek legal advice.

My opinion is to continue pursuit of the full amount of the purchase - any devils advocates out there?

Cheers

Michael

I think you may be right but when I was discharged I got a letter from the OR stating that 'any asset included in the BR estate (property which can be distributedd among creditors) that has not been realised continues to belong to the trustee'. It also says that he intends to apply for release as my trustee. I'm thinking 1) the PPI was notan asset of the estate at the time (or not a known asset and therefore not included) and 2) He is no longer my trustee because he as askedd to be released from it. Any thoughts?

I think the key is that it's an asset, whether "known" or "unknown".

I'm sure the OR would be able to recover any assets from pre-discharge if they were deliberately concealed, whether they're still trustee at the time of discovery or not, wouldn't they??

Also, if you take the flip side and look at debts instead....any that can be included in the BR are included, whether "known" or "unknown" (i.e. whether declared on the SoA or not).

So for me it would work the same way the other way around and the OR would be entitled to recover the PPI for distribution to creditors...

(I look at it as everything pre-discharge as the OR's, whether asset or debt - everything since then is mine, with the exception of the IPA )

Cheers

Michael

IMHO, I'd say it's the OR... (unfortunately, as there's plenty I'd like to go for - but balanced against the debt included in my BR, I'm more than happy!).

Cheers

Michael

Hi Martin

Small update...

Bit of a runaround getting the report sorted out - there's a PC hardware place near my work that I've used before for repairs, they were quite dismissive but would write the report in 7 working days and charge £40+VAT, or 3 working days and charge £50+VAT - told them to get lost. Then tried PC World (just passing last Satdi), who had 3 different staff check whether they still wrote reports - oh yes, booked us in for the Monday (at £29.99, so quite reasonable), only for us to be told on turning up that they no longer do reports..

Finally found a local PC hardware/peripheral repair place who were absolutely excellent - same day report for £35+VAT - identified it's a display issue and the display itself needs replacing at £125+VAT (the report charge would be deductible from this).

Have now drafted a suitable letter for the wife to send to Tesco by Special Delivery today giving them 14 days to refund or "deadlock" - will update with the letter contents when we get a reply

Cheers

Michael

Thanks Martin - that looks very relevant

I might just nip down to my local computer store and see if they'll do a report - then send a strongly worded stick up the backside letter to Tesco

Cheers

Michael

Hello Michael good to see you again.

Thanks Martin - you too - proverbial bad penny me though

Will move this to General Consumer issues-I think better response there.

Thanks, hope so as I'm a little stuck and I really want to stick it to this lot as DELL are a right royal PITA!

Cheers

Michael

Hi all

A little wordy post, but probably needed to give you the full background.

I'd like some advice on rejection under SOGA please....it's an area I think I'm ok with to start off with, but have run into stubbornness from DELL & Tesco credit card and am a little stuck with where to go next.

Here's the story:

On 29th December last year, my wife ordered a DELL Inspiron laptop online directly from DELL with her Tesco credit card (toptal cost £349) and it was delivered on 30th December. Until around April time, it was fine and had no problems - however it started to develop an intermittent display issue (horizontal lines across the screen) which appeared to be connected to the angle that the screen was at (i.e. it went away when the screen angle was changed). It didn't happen very often, but in May she logged a call with DELL technical support to try and get it resolved. Typically the problem did not occur when the rep was connected to her machine and he simply changed the display drivers (being in the IT biz myself, I reckoned it was hardware-related, but of course in this instance my opinion counts for nought).

DELL closed the call with an email to say that if it re-occurred, to send screenshots to that email and they'd reinvestigate. Of course, the problem wasn't resolved and on 5th June we sent screenshots (which don't show the issue, because the video card obviously thinks it's sending the "right" info to the display), along with camera-shots of the screen and a video of the problem occurring (both of which show the issue quite clearly).

On 6th June, DELL support called and advised that the laptop would need repair - agreeing with me that there was a problem with the hardware. 3 options were available:

i) Have the laptop collected and returned to DELL for repair - would be FoC as under warranty but would take 10-12 business days;

ii) Pay £29.00 and have an engineer visit at a location and time of our convenience; or

iii) Pay £60.00 and have 12 months cover for an on-site engineer for this problem and any others.

I told him that option ii was best (noting that we would not expect any further major problems with the laptop and if any did occur, the laptop would be rejected under SOGA). We both have jobs that have us in meetings and/or out of office at various points in the day, so getting a convenient time is quite hard work. I stated that the following Monday (13th June) would be a convenient time as we were both on leave - the rep advised that he couldn't book the appointment for the following week, but we simply had to reply to their email with the requested date and location before 1500hrs Friday 10th June and the appointment would be booked without a problem. We paid for the engineer visit was paid for and we sent an email on 8th June requesting Monday 13th June for the visit.

On Friday 10th June after 1800hrs, we got a phone call from DELL stating that an engineer wouldn't be available for Monday 13th June after all and they could do Tuesday 14th June instead. Obviously we'd planned out the rest of the week based on DELL coming on the Monday, so that week was unachievable. As far as we're concerned, at this point DELL breached a verbal contract for an engineer visit on Monday 13th June and we had no faith that they'll be able to arrange a repair without some significant inconvenience to us - therefore I verbally rejected the laptop under SOGA as being of unsatisfactory quality (developing a major display fault within 6 months). DELL refunded the £29.00 paid for the engineer visit and gave me an email address to write and reject it in writing.

On Sunday 12th June, I wrote an email for my wife to send to DELL setting out the above and rejecting the laptop - to which Robin D'Cruz at DELL replied with:

Firstly we would like to that you for the email.

 

Upon reviewing the case we have noticed that the tech support representative that tried to get in touch with to inform you about the service, however when he did get to speak with you it was too late to book the service for Monday. Kindly provide us with a day when the service can happen(working Hrs and weekday) and we will do the need full.

We replied with:

You have quite plainly either not understood my email, or chosen to completely ignore it.

The laptop is rejected under the Sale of Goods Act (1979) as amended - I will repeat:

 

The laptop will be boxed up and no longer used awaiting return to DELL - please send the following:

1. A pre-paid label for return postage of the laptop (alternatively, details of how to arrange a collection at a date and location convenient to myself);

2. confirmation that you will be immediately issuing the refund of £349.00 to the credit card used for purchase;

 

The deadline for response remains the same (i.e. by Sunday 19th June 2011) - however if you do not agree to this rejection, please advise asap in order that I can take this up with my credit card company (they are jointly liable under the Consumer Credit Act 1974). If this is the case, you should also furnish me with a UK address that County Court papers can be served upon should this be required.

On 14th June, Robin D'Cruz (apparently in "Customer Relations") replied with:

We have gone through the complete case history and we are extremely sorry but a refund for the system is not possible .The refund option is available only within the first seven days from the system delivery date, right now we can arrange a service call to resolve the issue.

Please find the attached file .

The attached file is a PDF of a letter addressed to my wife at my work's address (which is what we used for delivery....) stating the following:

I am writing in response to our conversation regarding your Dell system with service tag [readcted].

Firstly, we would like to thank you for taking the time to write to us and making us aware of your experience with Dell. We also apologize for any inconveniences you have encountered in the process.

On evaluation of the matter with utmost consideration, Dell concludes as follows.

As per the terms and conditions of sale and service, we are unable to offer a refund or a replacement system right now as per your original request.

This is according to Dell Terms and Conditions of Sales and Services.

http://www1.euro.dell.com/content/topics/topic.aspx/emea/topics/footer/terms?c=uk&l=en&s=gen&~lt=popup

Acceptance of Products on Delivery, "Cooling Off" & rights of return and cancellation

7.3 Consumers may cancel their Orders for any reason until, but no later than:

7.3.1 the end of the 7th "working day" (days other than weekend days & public holidays) after the day of receipt of the Product &/or of the Service Order Confirmation (as applicable)

In the event of a fault occurring with the system, we are ready to repair it for you according to the warranty agreement in a reasonable amount of time.

We acknowledge your rights as a Consumer.

Once again we want to assure you of our total commitment to your satisfaction with our services and products, and apologize for not meeting up to your expectations on this occasion.

Quite clearly they are trying to be completely ignorant of SOGA and are getting confused with the DSRs! Figured that attempting to deal further with DELL would simply be frustrating, we wrote to Tesco credit card with the following:

On 29th December 2010, I bought a DELL Inspiron N5030 laptop from the DELL website using the above card (see transaction reference [redacted] for the sum of £349.00). The laptop has proved to be faulty because it has developed a major fault with the display within 6 months of purchase (horizontal lines intermittently appearing across the screen, severely interfering with the display).

On 23rd May 2011, I gave DELL Technical Support the opportunity to resolve the fault by logging a support call via their telephone support. Various troubleshooting steps were taken but after the call the problem was not resolved.

On 5th June 2011, I emailed DELL Technical Support evidence files to show the problem still occurring and on 6th June they called to advise that the laptop would need to be repaired. We arranged for an engineer to attend my home address on Monday 13th June 2011 at an extra cost to me of £29.00. DELL then called in the evening of Friday 10th June 2011 to advise that an engineer couldn’t be booked after all and that the visit would have to be rearranged. This was firstly unacceptable due to the late notice and having arranged to be home on the Monday, but also unacceptable as we could not agree an alternate date for the appointment (I work from different offices and my husband is in & out of meetings all day, so it is very difficult to organise an appointment at work).

I now have no faith that DELL are able to arrange and/or keep to a convenient engineer appointment and consider that the development of a major display fault within 6 months of purchase that is unable to be remedied by DELL without some significant inconvenience to myself is not acceptable and is a clear breach of the terms of the Sale of Goods Act (1979) as amended because it does not constitute a product of satisfactory quality.

I have tried unsuccessfully to resolve this dispute with the retailer (see attached letter from DELL, who are clearly confused between the Distance Selling Regulations and the Sale of Goods Act 1979 as amended) and am now looking to you to provide a full refund.

I base my claim on section 75 of the Consumer Credit Act (1974) which makes you jointly and severally liable for any breaches committed by the retailer.

I look forward to your response within 14 calendar days of receipt of this letter (i.e. by close of business on Friday 1st July, 2011).

On deadline day, we got a reply from Tesco credit card:

Thank you for your recent communication concerning the dispute with DELL

 

I note that you wish to make a claim against Tesco Bank under Section 75 of the Consumer Credit Act 1974.

 

The Bank fully accepts its responsibilities under the Consumer Credit Act and considers each claim on its merits. Section 75 does not provide you with an automatic entitlement to a refund. It allows you to pursue a claim against the retailer and/or the credit provider for breach of contract or misrepresentation. You still have to prove that a breach of contract or misrepresentation actually occurred and that any reimbursement claimed is justified in the circumstances.

 

Therefore, in order that I can fully assess your claim, please supply me with copies of all the relevant documentation that you hold relating to this transaction including a copy of the invoice. It will also be necessary for you to provide me with an independent report, from a reputable retailer, detailing the current faults along with an estimate for repair.

 

I look forward to receiving your reply.

How best to respond now?

Are Tesco correct?

Do we actually need to get an independent report, given that the fault has appeared within 6 months of purchase and therefore it is for the retailer to prove that the fault didn't exist at time of purchase (prefectly happy to, just don't really see why we should)?

Thanks muchly in advance for any help & advice

Cheers

Michael

I had a CCJ registered without receiving the claim form just as I went BR.

I asked the OR about challenging it (as the OR administers your affairs) and got the following reply: "The Official Receiver would not look to overturn the CCJ on the grounds the paperwork was not received, and you cannot commence any legal actions other than for personal injury. I appreciate that it is annoying that the paperwork was not served correctly but the creditor will not get any preferential treatment in the bankruptcy by registering the CCJ."

I would write to HMRC with a copy of your Dicharge notice and ask them to update the CRA's that the file should be marked as satisfied or alternatively you could ask the CRA's directly by sending them a copy of your credit file. I think this could be your only hope.

In my case (above), after discharge I wrote to the creditor with the CCJ with the notice of discharge and asking for them to mark it as satisfied (which IMHO they're obliged to do under the DPA). The creditor agreed and wrote to the court saying please mark as satisfied - the court actually removed the judgement completely (and it has gone from all the CRAs)!

Cheers

Michael