FOS - delaying complaints?

[tifo]

So the decison made by the FOS may well be flawed and I do accept that there is a great problem in getting this overturned.

 

Yes, this is very difficult.

 

The FOS is regulated by s.228 of the FSMA 2000 and s.3.6 of the FSA Handbook puts this into practice. Sub-section 3.6.4 states the FOS is to use relevant law, regulations, guidelines etc. in makig its decisions.

 

I'm asking the FOS to provide details of the law and regulations used to decide that my refund can go to a third party who is not part of the complaint between myself and the bank and as far as i am aware, have not become a party or made a cross claim during the complaint.

 

I have further provided proof that such a third party is not entitled to receive any payment while in default and offence of the CCA 1974 and the account would be unenforceable under these circumstances.

 

In light of the above 2 paragraphs, i've asked the FOS to provide details of how they ensured the debt agency is entitled to receive this payment, as i am sure they wouldn't want me to claim money i am not entitled to (like they are saying) and the same would apply to a debt agency and bank.

 

As it is my money they are giving away, my requests are legitimate and a part of my complaint, to ensure fairness and justice to everyone.

 

If the FOS won't provide the info, i will ask my MP to look into it, as well as the treasury minister who has sent me some info. I may end up asking the court to make an order for this info. It could well be a 3-way claim against the bank, DCA and FOS and for all to provide their own evidence etc.

 

In the end, if the FOS decision is not based on relevant law and guidelines, then it is invalid under their own applicable legislation. I am sure the law is meant to apply everyone indiscriminately.

 

I think the law is on my side here unless there is something i don't know and i did not spend all of last year making these complaints only to have the DCA paid something they're not legally entitled to.

[tifo]

The reason : the original creditor has been paid (the debt is 'satisfied') and is no longer showing the debtor as owing them anything.......therefore any payment made by the original creditor comes from their own money and having been requested by the debtor and the refund of charges agreed to by the original provider, this money is the 'property' of the debtor.

 

It is also important to remember that when the DCA buy the debt they buy all of the rights appertaining to that agreemnent, those of the original creditor and those of the debtor. This then becomes a completely separate matter, and as soon as the DCA write to the debtor and say they have purchased the debt and ask for 'proposals for payment' then there is a totally separate 'contract' between the DCA and the debtor.

 

I am with you on this one. As the debt has been paid by the DCA it no longer exists, though most of it has been written off by the bank (this may pop up later). There is now a seperate contract between myself and the DCA which is of no concern of the bank or the FOS, it is not for them to manage my debts.

 

However, during some complaints i have had written off debts appear as due from the bank. Tbern will recall my case with HFC where they kept the money towards the write off after i settled in part payment, and Citi where they wanted to send the money to the DCA but then said they'll pay it towards the write off. In both cases the FOS agreed with the bank.

 

So it means the bank can pay itself towards the write off whether it has sold the account or not.

 

Whether the bank sells the debt to a DCA (who make a part payment) or i make a part payment, most of the debt is written off. It is with the use of clever accounting and the FOS's blessing that this is then emerges as due to the bank, even though the credit file and documentation may show otherwise. Meaning unlawful data processing but this was totally ignored by the FOS.

[tbern123]

I hear where you are coming from Dougal. I just think I may be stuck in my ways as I used to work for a high street banks complaints department for four years.

 

In relation to the theft act, I just can't get my mind around the refund belonging to the debtor.

 

How can ownership belong to the debtor if they did not pay the charges in the first place ?

 

I appreciate Tifo does state that the refund is his money.... But this is the technical point that I disagree most on. I don't think it is his money based on the fact (yes I know I sound like a very broken record) he did not pay the charges.

 

One of the rights assigned to the DCA is the right to repayment. Please don't get me wrong on this topic, as I have myself reclaimed charges applied to my account.

[Dougal16T]

Yes, this is very difficult.

 

 

I think the law is on my side here unless there is something i don't know and i did not spend all of last year making these complaints only to have the DCA paid something they're not legally entitled to.

 

Good morning tifo,

 

Have a look at my posts on the subject of refunds as I hope that there may be some help for you in relation to your last line. If I've confused you please feel free to PM me.

 

Best wishes

Dougal

[tifo]

How can ownership belong to the debtor if they did not pay the charges in the first place ?

 

They are/have paid the charges, it's just that they're now part of the money the DCA is asking for. These charges have been paid for on behalf of the debtor by the DCA when buying the account. The original creditor accounts has been satisfied in full, therefore charges have been paid. How much a DCA paid for the account is a seperate commercial matter between them and the bank but the account is clear with the original creditor.

 

The debtor/DCA have a seperate contract to the debtor/original creditor. The creditor is paying the money to an outside party who is not a part of the contract between the debtor/creditor or the complaint.

 

The FOS act as if the balance at the DCA is like a balance at the original creditor and due on the account but in reality the balance is on a seperate contract and a different company. The two cannot be mixed.

 

If the DCA want the money they should become part of the claim/complaint and provide the evidence required to receive payment, otherwise it becomes unjust enrichment to them. It is only fair to ask them why they're entitled to the money and to show proof, just like the FOS want to make sure the claimant (debtor) does not get money they are not be entitled to.

[tifo]

The Bank / DCA could actually argue that Tifo has not suffered a loss as the refund has been used to reduce an outstanding debt.

 

The only actual loss would be loss of control of use of the funds.

 

The funds themselves have not been lost, they have just been used for something that Tifo does not agree with

 

Tbern, the point is that the FOS has to work within the law and regulations, it's part of the Act that guides them, so i keep asking them - what law/regulations etc. their decision is based on, to pay my refund to a company who is not part of the complaint with the bank/FOS and not a part of the contract between myself/bank, and what steps they took to ensure the company is not unjustly enriched with my money and is legally entitled to it.

 

It is not enough for them to say that a debt is owed to the DCA, that is none of their business and i have not made the FOS or the bank my agent to handle my debts for me.

 

This is a fair request from me i think, after all, they keep saying they wouldn't want me to get money i am not entitled to, so i assume the same applies to the DCA.

 

Again, OTR it has been stated that 'it is industry practise to send a refund to a DCA so just accept it' but 'industry practise' does not make the law, does it? Just like recording a default for 6 years is 'industry practise' but it is not law, is it?

[tifo]

Would it be unresonable to suggest that the FOS may be helping the original providers somewhat? I say this and throw into the pot the 'Aid, Abet, Counsel and Procure' legislation for further thought!

 

Aid, Abet, Counsel and Procure

 

To assist another in the commission of a crime by words or conduct.

 

It is an offence to aid, abet, counsel or procure an indictable offence. This means assisting or encouraging the perpetration of a crime.

 

The maximum sentence depends on what is the maximum for the principal offence which has been aided, abeted, councelled or procured.

 

So, you are saying that the FOS is aiding and abetting the bank in committing fraud and is joint liable in a claim? Of course, if they knowingly do this because there is no legal basis for their decision to agree with the bank to pay an outside company my money, then you are correct.

[tbern123]

These charges have been paid for on behalf of the debtor by the DCA when buying the account.

 

If we used the above, then surely this would reinforce the argument that the refund should go to the DCA as it was them that paid the charges on the Debtors behalf.

 

The debtor/DCA have a seperate contract to the debtor/original creditor. The creditor is paying the money to an outside party who is not a part of the contract between the debtor/creditor or the complaint.

 

Do they actually have a seperate contract in law. Via assignment doesn't the DCA take the place of the original creditor ?

 

As this is what a debtor essentially agrees to when they sign the original credit agreement.

[tbern123]

It is not enough for them to say that a debt is owed to the DCA, that is none of their business and i have not made the FOS or the bank my agent to handle my debts for me.

 

This is a fair request from me i think, after all, they keep saying they wouldn't want me to get money i am not entitled to, so i assume the same applies to the DCA.

 

a) why is not enough for them to say that a debt is owed

 

b) How can it possibily be classed as fair to request a refund for something you have not paid. Who is it fair too ????

[tifo]

a) why is not enough for them to say that a debt is owed

 

b) How can it possibily be classed as fair to request a refund for something you have not paid. Who is it fair too ????

 

a) saying something does not make it lawful, it has to be proven. I would expect the FOS to backup their statement with solid law as they have to.

 

b) it is fair for me to ask to see evidence of the DCA's entitlement to my refund, as should the FOS. After all, they wouldn't give money away just because someone wants it, would they?

 

it comes down to a cross claim, shouldn't the DCA have a cross claim within my complaint, as they are a totally seperate company to the bank? In this cross claim, shouldn't they have to show legal entitlement to receive payment? Just because the bank and the DCA say so does not make it lawful.

 

a court would not allow payment to be sent to someone who is not part of the claim, would they?

[tifo]

i don't know how the FOS is going to show that their decision is based on a legal basis ..... the same from the bank .....

[tifo]

who does one complain to about the FOS?

[tbern123]

a) saying something does not make it lawful, it has to be proven. I would expect the FOS to backup their statement with solid law as they have to.

 

But Tifo, you freely admit that a debt is owed. I thought the dispute in relation to the FOS was in relation to whom should recieve the refund.

 

b) it is fair for me to ask to see evidence of the DCA's entitlement to my refund, as should the FOS. After all, they wouldn't give money away just because someone wants it, would they?

 

it comes down to a cross claim, shouldn't the DCA have a cross claim within my complaint, as they are a totally seperate company to the bank? In this cross claim, shouldn't they have to show legal entitlement to receive payment? Just because the bank and the DCA say so does not make it lawful.

 

The legal entitlement would be the via assignment process. Assignment of debts is lawful.

 

a court would not allow payment to be sent to someone who is not part of the claim, would they?

 

I think the only thing that you can do, is go to court. However, I would think very carefully before making a claim against the FOS. I am not sure how you could word your POC's to show that the FOS has caused you any loss as they only make recommendations. It is you that decides if you should accept their recommendation.

 

Here is some interesting reading about the FOS

Financial Services and Markets Act 2000

Financial Services and Markets Act 2000 (c. 8)

 

Consumer Credit Act 2006 (section 59)

Consumer Credit Act 2006 (c. 14)

 

FSA Handbook

FSA Handbook - Full Handbook

 

Here is the FOS Memorandom of Association

http://www.financial-ombudsman.org.uk/faq/pdf/memorandum_of_association.pdf

 

 

 

I think this debate boils down to just one point. Is someone entitled to a refund for a charge they have not paid.

 

Taking into consideration the posts here and otr, I have not seen anything yet that would stand up in Court especially when you consider the findings of cases such as the Rankins latest goings on....

[tifo]

thanks tbern,

 

i think the debate here is whether the bank, and the FOS, have any right in sending money to someone who is not a part of the complaint.

 

i understand that a DCA would have a right under legal assignment, i am just asking to see that right, just as you would. To date, i have been asking the DCA for over 16 months (s.78) and all i get is a short application form and nothing else, making the account unenforceable (s.127). Under those conditions, would you say they have a legal right to this money? Because even a court would say they haven't (s127). Therefore the FOS are over-ruling both s.78 and s.127. Under what legal basis i ask?

 

i meant taking the bank to court and asking for a refund directly to myself. But i may consider taking the FOS to court over losses sustained as a result of their non-compliance with their statutory duties, because i don't know what law they are using to let the bank pay my refund to a DCA. I am asking them for this information but they won't tell me, because maybe they haven't got anything. At the most, in court, i may get this information.

 

If i start on a claim for around £200 (i have one bank offering this to a DCA) then i pay a small fee of around £35 to issue the claim and see what happens. I assume that, being a small claim, they, like any company, cannot claim their costs?

 

But before that, i am trying to get my MP and his colleagues to look into it as i am saying the FOS is not doing its statutory duty and i am sustaining losses because of this, to the tune of each refund.

 

We are now talking around £12,000 which i am losing to DCA's, which the banks have offered, when they haven't complied with legal requests, broken the law, harassing me for payment, send harassing letters, make harassing phone calls, etc etc. You know what they do. If it wasn't for the FOS decisions, i would have that money and make my own arrangements with the DCA's.

 

As i keep saying, the FOS only agree with what the bank says and the bank cannot always be right, as in Citi wanting to keep the payment towards the write off despite selling it to Cabot, who say they are not the creditor but want the money. I'm not chasing each company to tell them off. Same with HFC keeping money towards a written off amount despite defaults at CRA's showing otherwise, a case of incorrect data processing, yet none of this was looked into even after i asked the FOS to enquire into it.

 

I've had 4 scenario's :

 

1. Bank sold the debt and pays me as i owe it £0.

2. Bank sold the debt and pays the DCA, even though i owe bank £0 and DCA not a part of the complaint.

3. Bank sold the debt but pays itself towards write off (after what the DCA paid for it) even though account is £0.

4. Bank didn't sell the sell but i part settled whole amount, account £0 for years, bank pays itself towards write off.

 

2 and 4 above are the same, in that i pay or the DCA pay, to clear the account to £0, yet bank will pay the DCA but not pay me. Same thing, different principles.

 

All the above are seen as fair and reasonable by the FOS, all i ask is what's the legal basis for 2, 3 and 4. It's a simple request.

Edited June 9, 2008 by tifo

[tbern123]

We could flip this around.

 

What legal or even moral right does a debtor have to a refund for charges that they did not originally pay and still remain owed ?

Edited June 9, 2008 by tbern123

[tifo]

We could flip this around.

 

What legal or even moral right does a debtor have to a refund for charges that they did not originally pay and still remain owed ?

 

That's irrelevant here.

 

What is relevant is that i don't owe the bank any money on the account therefore the payment must come to me. Whether i have paid, or am paying, or they are due, is not a concern here because it is to a legally seperate company.

 

What legal basis is there to pay make a payment to a seperate legal company who is not part of a complaint and what steps have been taken to either make them a part or ensure they are legally entitled.

 

It could be flipped around to everyone.

 

I think you shouldn't merge morality and law, otherwise everyone making a s.78 request would carry on paying if it came to morality, as well as send the bank £2.50 from every charge they get refunded, just to be nice and moral about it.

 

I'm not evading my debts, i would gladly pay the DCA, say 25%, to clear the account as they keep asking me to, which i lose when the bank pays them directly. To me, they therefore get more than they should.

 

Not forgetting that the bank could always raise the written off amount in future and make refunds towards it, in case i claim something. This is moral, i suppose, because a bank is doing it. Like telling a customer (for 4 years) they don't owe anything, screwing their credit file and then taking their refund is also moral.

Edited June 10, 2008 by tifo

[tifo]

Have had this response from their legal department, to my request for information on the legal basis for their decisions. Are they that dim? I didn't ask for advice, i made a request.

 

"You may not be aware that the legal department at the Financial Ombudsman Service only provides advice to internal departments on legal issues. We do not provide a legal advice service to complainants so I cannot assist you directly on the issues you have raised".

[tbern123]

That's irrelevant here.

 

Firstly, I am unsure why you feel it is irrelevant. No offence intended to anyone. Your argument is that the DCA is not legally entitled to the refund. I was suggesting that the same argument in relation to the legal entitlement could also be applied to the Debtor

 

What is relevant is that i don't owe the bank any money on the account therefore the payment must come to me. Whether i have paid, or am paying, or they are due, is not a concern here because it is to a legally seperate company.

 

The DCA is a seperate legal entity from the Original Creditor. However, as the rights and duties of the original creditor have been assigned to the DCA, the amount owed under the original credit agreement is now owed to the DCA as if they were the original creditor.

 

The Act states:

 

 

186

. Where an actual or prospective regulated agreement has two or more creditors orowners, anything required by or under this Act to be done to, or in relation to, or by, the creditor or owner shall be effective if done to, or in relation to, or by, any one of them.

I am not for a moment suggesting that the ACT applies to refunds. However, it does clearly show that as far as the act is concerned both creditors are classed as one in the same.

 

The point I am trying to make is that the Original Creditor and the DCA are legally seperate entities, there is provision in the act, to link them in their actions. So I don't think the situation is really that clear cut.

 

What legal basis is there to pay make a payment to a seperate legal company who is not part of a complaint and what steps have been taken to either make them a part or ensure they are legally entitled..

 

The legal basis, I would presume is the actual assignment process and the DCA taking the place of the Bank as the creditor. From what I have read in the act, once anyone defaults, it does not give them any additional rights to negotiate a reduced settlement.

 

Following assignment, the DCA has received the refund as the Creditor, just as the Bank would have done had they still been the Creditor.

 

The original credit agreement and the assignment means that the DCA is not totally seperate.

 

It could be flipped around to everyone.

Exactly.........

 

I think you shouldn't merge morality and law, otherwise everyone making a s.78 request would carry on paying if it came to morality, as well as send the bank £2.50 from every charge they get refunded, just to be nice and moral about it..

 

In relation to s.78 you need to read the latest Rankin case. As this has blurred what can happen in Court. It is not always the 100 safeguard that we all previously assumed it to be.

 

 

I'm not evading my debts, i would gladly pay the DCA, say 25%, to clear the account as they keep asking me to, which i lose when the bank pays them directly. To me, they therefore get more than they should.

 

 

Not forgetting that the bank could always raise the written off amount in future and make refunds towards it, in case i claim something. This is moral, i suppose, because a bank is doing it. Like telling a customer (for 4 years) they don't owe anything, screwing their credit file and then taking their refund is also moral.

 

 

I never suggested that you was evading your debts. My comments and posts only relate to the attempt to claim a refund for something you have not paid.

 

My position would be, if someone can get a refund for something they have not paid, why can't everyone else get a similar payment from the financial institutions in question.

 

Even though I/we may not be customers, I feel that we have just as much right to the refund. As we have paid the same amount towards those charges.

 

[tbern123]

If we break this down and just look at what a refund actually is.

 

Refund is to either repay or return an amount paid.

 

On this basis how can the original creditor repay or return something that is never received.

 

Surely, you will agree that you have to receive something first before you can either repay or return it. I know you say the DCA paid it, but if anything that only reinforces the argument that the as the DCA gave to the Original Creditor the Original Creditor should repay or return it to the DCA.

[tbern123]

Have had this response from their legal department, to my request for information on the legal basis for their decisions. Are they that dim? I didn't ask for advice, i made a request.

 

"You may not be aware that the legal department at the Financial Ombudsman Service only provides advice to internal departments on legal issues. We do not provide a legal advice service to complainants so I cannot assist you directly on the issues you have raised".

 

In relation to the FOS when they deal with a complaint, their main intention is to restore a customer to the same financial position they would have been had a the situation not occured.

 

By paying the DCA and not yourself they meet this objective as the amount still owed is the same amount that would be owed if the charges had never been incurred.

 

In their view this is a fair way to resolve a situation which after all in the purpose of any Ombudsman

[tifo]

The DCA is a seperate legal entity from the Original Creditor.

 

The original credit agreement and the assignment means that the DCA is not totally seperate.

 

OK, i am asking for proof, as anyone would. Even though the DCA may have been assigned the account (i am still waiting for documents on that), they are still a seperate company and not the bank.

 

I do not believe the DCA have any right to this money and have made a request under primary legislation. They have been unable to substantiate their assertions, therefore the same primary legislation stipulates that they are not entitled to enforce the agreement until they comply. Enforcement would also include to receive any payment. It would not be fair on me if they got payment they are not entitled to. In their determination, i would expect the FOS to ask the DCA to substantiate their claim, but the DCA is not part of the complaint so no-one has ever dealt with them in this matter, yet they are getting full payment. So how has the FOS made sure they are entitled to it? Because the bank says so. But, they (and the FOS) are giving away my money. Yes, i know it's money that was part of what was written off and then sold, but that means the balance at the bank is £0.

 

We're going around in circles here.

 

I could, potentially, make a claim against the DCA to refund the amount they have received as primary legislation states they are not entitled to it. But we all know they're not going to do that.

 

We might as well all stop making s.78 requests and quoting all sorts of Acts to the DCA's and banks, they're not going to bother acting on anything because they know the customer comes last, everytime. So what use is legislation for the consumer if it says one thing and regulators etc do another?

 

DCAs have been flouting the law for the last year with me and it now seems i've been working to get them money. And no one has taken them up on their unlawful activities. Not TS, OFT, ICO, FOS or anyone else.

[tifo]

Some of these accounts with the DCAs have been settled by me, in response to complaints about unlawful data processing so no payment was exchanged but the DCA offered money, E.G. £1000, which i accepted and then they paid this towards the account to close it in full.

 

They have now got my refund, even though i've sent the FOS proof that the account was closed in full. Some £800 on an account which has a balance of £0 at both the bank and the DCA. That's just charges, no interest was paid.

 

Back to the written off thing, DCA will say they wrote off the account and gets the refund.

 

I have paid twice, once from my compensation and then again from my refund. This is not fair to me, but what can i do.

 

It would seem whether you have a balance on the account or not, anywhere, and even if you've paid from your pocket, you will never get the refund unless the account has not been defaulted and the bank can pay into an active account that is still with them.

[tbern123]

OK, i am asking for proof, as anyone would. Even though the DCA may have been assigned the account (i am still waiting for documents on that), they are still a seperate company and not the bank.

 

But the Bank and DCA are linked as they are both creditors of the same agreement.

 

I do not believe the DCA have any right to this money and have made a request under primary legislation. They have been unable to substantiate their assertions, therefore the same primary legislation stipulates that they are not entitled to enforce the agreement until they comply. Enforcement would also include to receive any payment.

 

This is one of the stumbling blocks for me, I am sure the Bank will freely confirm that the account has been assigned to the DCA. I am unsure to what other evidence or documentation they would legally need to provide you with.

 

In relation to enforcement. The refund is effectively a reduction of the debt. I am again not sure that the reduction of the debt could be classed as enforcement.

 

It would not be fair on me if they got payment they are not entitled to. In their determination, i would expect the FOS to ask the DCA to substantiate their claim, but the DCA is not part of the complaint so no-one has ever dealt with them in this matter, yet they are getting full payment. So how has the FOS made sure they are entitled to it? Because the bank says so. But, they (and the FOS) are giving away my money. Yes, i know it's money that was part of what was written off and then sold, but that means the balance at the bank is £0.

 

But as I have posted previously, why are you more entitled then the DCA to a refund ? I would have thought that to meet the concerns of the FOS the Bank would merely need to confirm the account has been sold. I can't think of anything more specific apart from maybe a letter from the Bank to confirm, would be required by the FOS or by a Court.

[tbern123]

Some of these accounts with the DCAs have been settled by me, in response to complaints about unlawful data processing so no payment was exchanged but the DCA offered money, E.G. £1000, which i accepted and then they paid this towards the account to close it in full.

 

They have now got my refund, even though i've sent the FOS proof that the account was closed in full. Some £800 on an account which has a balance of £0 at both the bank and the DCA. That's just charges, no interest was paid.

 

Back to the written off thing, DCA will say they wrote off the account and gets the refund.

 

I have paid twice, once from my compensation and then again from my refund. This is not fair to me, but what can i do.

 

It would seem whether you have a balance on the account or not, anywhere, and even if you've paid from your pocket, you will never get the refund unless the account has not been defaulted and the bank can pay into an active account that is still with them.

 

 

I presume the payments that you have made and the refund of charges payments have not exceeded the amounts originally owed ?

[tifo]

tbern, thanks.

 

we're getting nowhere with this.

 

are you saying that the bank stating they've assigned it has more weight than me proving the DCA haven't complied with a primary legislation request and their default and offence is applicable? The banks' word is better than legislation?

 

imagine, in court the DCA would need to become part of the claim and make submissions and provide evidence the same as everyone else. I want them to become part of the complaint with the FOS if they want the money, why should they get something for free?

 

at the end of the day, as a company they were never part of the complaint so if the bank wants to bring them in, i need to see their proof of entitlement because i am the complainant and i would need to sign the document accepting the bank's offer.

 

banks seem to say they've paid the DCA without the claimants agreement, F*** the claimant, so what if he doesn't agree.

 

since i'm not accepting the banks' offer and haven't sent the FOS acceptance form back, i would expect the money to be still with the bank and not to be paid to the DCA. Or am i wrong in that?

Edited June 10, 2008 by tifo