Financial Ombudsman / Brandon / Help?

[jonk]

Hi All

 

Just want a bit of advice as to the FOS = I appreciate that they are not thought of in the best light here,but want to explore the option before admitting defeat.

 

Brief history - Amex issed a Default notice, then14 days letter a termination notice

I complained to FOS that this was in breach of the CCA, and quoted the appeal for Brandon-vs-AESEL

They have responded saying that it wasn't in breach as "a default notice is served when it is posted"... which seems ludicrous, as "serving" is when it is deemed to have been received...

 

So what I want to know is has the appeal in the Brandon case which confirmed that DNs should be deemed to be served 2 days after posting been superceded, and how do I deal with FOS - it's only an adjudicator dealing with it at the moment.

 

Also, reading the stuff here, it seems the FOS isn't interested in the legal issues involved... in which case how do I go about confirming that the termination was in breach of CCA.... do I have to refuse to pay anything and wait for them to take me to court?

 

Thanks!

 

Jon

[citizenB]

Both Brandon v Amex (on appeal) and Harrison v Link , made it quite clear that there is a statutory duty ro provide 14 clear days .. that posting time was either 2 business days = 1st class or 4 business days = 2nd class/UK Mail

 

For the FOS to claim what they have is ridiculous. I have attached the Harrison v Link judgment.. will go look for the other one for you.

Harrison v Link Financial Ltd ALL ER (2011).pdf

[citizenB]

http://www.bailii.org/ew/cases/EWCA/Civ/2011/1187.html

 

There you go.

 

IMHO, the FOS should keep their opinions to themselves if they dont know what they are talking about.

 

Parliament made it quite clear and the judgments above have confirmed that ..

[citizenB]

In answer to your question, no, those two judgments have NOT been superceded and I would ask the Ombudsman to provide evidence to the contrary.

 

The FOS are supposed to take account of the law, but dont necessarily have to agree with it and quite frankly they often dont. If they want to MAKE law, then perhaps they should change their jobs.

 

Some of their comments and decisions are downright dangerous.

 

It is up to you, whether you cease payment and wait until they take you to court.. you will need to be prepared to argue your corner if you are taking that route. The judgments will back you up. However if they have not terminated the account, then they are free to issue default notices until they get them right !!

[gezwee]

Jon

 

Really depends on what you are hoping to achieve.

 

Fos will not be concerned with the implications of a bad notice, and there's limited redress through the service as you'd need to show this has caused you damage and/or distress.

 

Gez

[jonk]

Hi All

Thanks for your replies - and CitizenB for the Harrison-v-Link case. I can't really understand why they are making such an obviously flawed statement, regardless of these cases posting and service cannot possibly be considered to be on the same day!

 

Amex have terminated the account, and in my view in breach of CCA, so can I take any action to stop the DCA from pestering me - is the debt now unenforceable? Not trying to avoid paying it, I ran up the debt, just want to get the pillock of a DCA off my back and put Amex in their place!

 

Thanks

[gezwee]

Hi Jon

 

The Fos are ultimately a mediation service only, FSA handbook [DISP] precludes them from becoming embroiled in civil litigation issues.

 

The reality is that the account cannot be terminated off the back of a bad notice, Brandon agreed same. The account is effectively [and lawfully] still live.

 

You could send the DCA a short letter advising the account is in dispute with the original creditor [don't tell them why], a dispute is a dispute, end of.

 

Send Amex a letter asking them why they have not afforded you your lawful rights ...... don't go into detail about the DN, just enough to cover yourself on the DN issue if it ever goes to court. Its not an ultimate defence but will cause them enough issues after filing that will aid your position.

 

In the meantime, the decision is yours whether you enter into an arrangement with them [Amex]. Certainly wouldn't entertain anything from a DCA, if they believe they're acting correctly let them tell it to a judge.

 

Gez

[jonk]

Amex claim that their CCA was in order, as was their action to terminate the account... so surely their response to the letter asking why they haven't afforded me my lawful rights, will be that they have! Shouldn;t the FoS be able to say to Amex "this is wrong".. although that does of course require FoS to acknowledge Amex's actions were indeed wrong!

[gezwee]

Amex will claim night is day, doesn't make it correct or lawful..... put them under notice they have not afforded you your rights. It's up to them to convince a judge otherwise if they ever file in the future.

 

Honestly don't think you'll get far with the Fos.

 

Gez

[citizenB]

 

The above is the effect it will have.. you banging your head against a brick wall.

 

For the FOS, all you could do would be to write to them expressing your concern that they should fly in the face of two recent judgments, one of them from the Appeal court. That you consider such comment from them to be as equally misleading as those of the Creditors/ DCA.

 

It would be interesting to be a fly on the wall if there was any litigation taken in this matter and the FOS letter was produced to counter any considered opinion of the two learned judges in the cases above

 

 

 

To the DCAs and or Creditor, all you can do is point them to the 2 judgments and invite their comments.

[gezwee]

Jon

 

Here's a recent case that may help you make your mind up, re; recording a formal dispute with Amex

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?337320-Robinson-Way-Court-Case-****-WON-WITH-COSTS-****&highlight=robinson+way

 

Gez

[jonk]

Just re-reading the "comments" from the FOS and it does appear to be cut and pasted from something AESEL sent them! - contains irrelvent details about phone calls they made prior to issueance of the default notice... would love to know if that's all they've done