Won FOS Complaint but Barclays not complying

[BankFodder]

Have you done anything about enforcing the FOS decision in the County Court? That should have been started by now.

Also it seems to me that they may have now breached their duties under the data protection act in terms of the disclosure.

Please follow the SAR link where we give you some advice about how to deal with your data disclosure in order to discover what's there and what's not there. What is not there can be just as important – or even more important than what is there.

Have you contacted the credit reference agency about this?

[BankFodder]

Thanks for this. The FOS are pretty incompetent even on the good days and this seems to be one of their bad days.

I think you should email the FOS immediately and tell them that you want a proper written confirmation of their decision sent to you by post. Explain to them that so far you have had no official confirmation and so far also Barclays has refused to comply.
Tell them that this is causing you stress and loss and you consider that the FOS themselves are being dilatory. Tell them that you are intending to have the decision enforced in the County Court but you need proper written confirmation from the FOS before you can go ahead.

On the matter of your credit file I suggest that you contact the agencies and lodge a dispute against the entry. Challenge the entry – I believe that they are then obliged to refer to the body which case the marker there and query it.

[BankFodder]

If this matter can be resolved by a direct approach from the ombudsman's office – then at least things are clear for you.

I completely agree with you about the unfair treatment you appear to have received at the hands of the bank and if they sort the matter out as a result of a direct ombudsman's approach then this will point even more to their lack of organisation and their unfair treatment of you.

Once the matter is resolved – then we will help you take up the issue of unfairness.

There is a possibility that the bank will respond that somehow or other they agree that they should have sorted it out earlier but they failed to do so and they will now sorted out and offer you some paltry sum in compensation. I would suggest that you agree that they should sort the matter out – but refuse any compensation and say that you will be looking at that separately. If you agree to accept some gesture of goodwill from the bank then effectively that will amount to a full and final settlement and you should not go down that direction. We will try to help you get something far more satisfactory.

[BankFodder]

I'm trying to get my head around this because something is going badly wrong. Also, this thread is becoming a mess.

• Originally you bought an item from Amazon for about 700 quid. It arrived in some unsatisfactory condition and you returned the next day.
• You have proof that you sent it – and now you have proof from Amazon that it was received. Also Amazon said they would process the refund – but they haven't.
• He pursued Amazon several times and got nowhere.
• Eventually gave up and contacted your bank for a chargeback.
• Barclays agreed in principle but said they wanted evidence from you.
• You supplied them with the evidence – but somehow they didn't attch it to the chargeback application and so they rejected you.
• By this time the money had been debited from your account and so you were overdrawn.
• After some complaints, Barclays eventually agreed that they had made an error but they still didn't execute the chargeback.
• You complained to the FOS who at adjudicator level held in your favour.
• The adjudicator communicated their preliminary decision to Barclays and Barclays agreed with it.
• The adjudicator made various recommendations and Barclays agreed to them.
• Despite this Barclays did not implement the recommendations.
• In May 2019, they closed your account and apparently put a CIFAS marker on the basis that you had committed some fraud.
• You have sent an SAR to Barclays and they have made the disclosure but without a lot of information.
• Apparently Barclays have now put it in the hands of their legal team

Is that broadly it so far?

 

I'm just trying to clean this up a little bit

 

 

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Who is the reseller of the item – was it Amazon? Or a third party reseller?

Have you got anything from Barclays in writing saying that they agreed to the adjudicator's recommendations or is it simply the email that you have received from the adjudicator?

Have you sent an SAR to the ombudsman's office?

Have you investigated the possibility of making a complaint to the ombudsman's office about their handling of your case?

[BankFodder]

Did the SAR disclosure from Barclays include any explanation of the codes they were using?

Was there anything in the SAR disclosure from Barclays relating to the complaint that you made against them to the ombudsman?

[BankFodder]

Please send an SAR to the ombudsman straightaway.

Of course you've been doing a lot of this on the telephone and you haven't recorded any calls have you? Have you read our customer services guide? Why you are recording your calls? Do you realise that you are missing valuable evidence here because you don't record your calls.

In the disclosure that you did receive from Barclays, have referred to your complaint? Either to them directly or subsequently to the ombudsman?

Have you followed our link and read the guidance that we have given on how to deal with disclosure documents? 

 

I'm trying to understand why you didn't pursue Amazon. Under the distance selling rules contained in the Consumer Contracts Regulations they had a duty to refund you immediately – rather than the voluntary chargeback scheme which is operated by the banks. They would have been a far easier target. You can still do this to get your money back although you will still have the issue with the bank.

 

[BankFodder]

The correspondence between the bank and the FOS has been going on far longer than may 2019 - which I gather from you is the latest date of the documents that they have supplied. I can't remember when you made your SAR but I believe that it was this year.

Therefore I think that you should write to Barclays immediately and tell them that the disclosure which you have received is incomplete and it is missing a great deal of documents involving exchanges between them and the FOS relating to you and which are your personal data. You should tell them also that under the data protection act, if they use codes and they have to provide a key to those codes and they have failed to do so.

Tell them that you notice that there has also been some references to their national fraud team and that the disclosure should include those documents as well. Tell them that you want a response within 10 days.

I suggest that you do that straightaway.

Now comes the next question – are you prepared to take legal action on this? Barclays have clearly breached their statutory duty in respect of data disclosure – unless they want to claim some fraud exemption or something but even then they have failed to supply you with codes. At the end of the 10 days, are you prepared to send a letter of claim and begin an action for a very modest amount on the basis of distress that you are suffering. This will start to focus them if you're prepared to do it. However if you have any hesitation then you should not make the threat like this because you will simply lose credibility.

Secondly, in order to get a bit of experience I suggest that you sue Amazon. It should have been done last year as soon as things started to go wrong and you would have still had a bank account, no CIFAS and I'm sure you would have had your money very quickly.

Are you prepared to sue Amazon? If you are then you should send them a letter of claim immediately. Post a draft of it here.

It should broadly be

 

Quote

Dear Sir/Mdm

On X X X date I ordered X X item order reference number 12345. The item arrived damaged and so I returned it the following day for a refund.

Despite repeated requests from me know refund has been received.

I'm not prepared to put up with any longer.

Unless you refund me in full within 14 days then I shall issue a claim in the County Court for the recovery of the money plus interest plus costs and without any further notice.

Yours blah blah

 

If you're happy to do this, then send the letter. We will have to find their UK office address. Start looking through this site for information on bringing a small claim in the County Court. It's fairly straightforward but it is better off to know the steps and this will give you greater confidence. Register with the money claim online website and start preparing your claim there. You can save your work as you go. Post up the draft of the claim here so that we can advise you as to any corrections. On day 15 click it off.

[BankFodder]

I also think that you should now email the adjudicator and I think that you should use an assertive approach.

I think that you should tell the adjudicator that despite the fact that he has apparently agreed a course of action with the bank, the bank has not implemented any of the recommendations. That you have asked for certain confirmations in writing and you have not received them despite repeated requests. That there have been repeated requests from the adjudicator for telephone contact with you and you have attempted several times to make the telephone contact and it has not happened.

I think you need to tell the adjudicator that unless this matter can be taken into proper control, that you intend to make a complaint about the service you are receiving.

https://www.financial-ombudsman.org.uk/who-we-are/service-standards/service-complaints

[BankFodder]

Does your SAR from Barclays show that they failed to attach the evidence or that they were in any way at fault?

[BankFodder]

Fine it is clear that the SAR is extremely incomplete. You should be referring to all of this – and any other documents that they hold upon you on any matter and in any form.  Including call recordings and call logs

Hopefully when you receive the SAR from the ombudsman service, you will be able to double check it against the disclosure from Barclays and that will more easily help you to identify missing documents.

Tell them that you want the complete disclosure within 10 days

[BankFodder]

If you are going to bring an action against Amazon then I suggest that you start a new thread for it. It will be easier for people to follow. If you the legislation on your side and the evidence that you have, I can't really imagine Amazon challenging this very much and although you may be obliged to issue the court papers, I can't imagine it going much further than that once they get a human being to look at what has happened and to understand the errors which they appear to have made.
Start a new thread for this topic

[BankFodder]

Sorry but can you just identify which letter of 21 February they are referring to.

I don't see what the problem is about claiming from Amazon. No you can't get a double settlement – but if you got the money from Amazon – which will probably be much easier – and which usually done at the beginning – then you will reduce the issue against Barclays. That will make it less economical for them to cause you problems.

[BankFodder]

Quote

Dear Sir/Mdm

Thank you for your letter of 3 March – fully 11 days after my letter of claim.

For the avoidance of doubt, my proposed legal action will be in respect of the unfair treatment I am receiving from the bank which is in breach of their statutory duty to treat me fairly under the Banking: Conduct of Business Regulations.

The other issues outlined in my letter will still be at large.

The 14 days referred to in my letter of claim expires on X X X date.

You had better hurry

Yours faithfully

 

 

I suggest that you bring a BCOBS action for a very small amount of money – say, £50. This will put them in a quandary because it won't be worth their while defending and so they will start off your settlement – which you should refuse. They will threaten you with costs because they will say that you are litigating unreasonably but you will not draw their attention to the fact that the court has discretion to award or to withhold costs and costs would only normally be awarded against the winner where the winner has behaved unreasonably. Refusing to settle is not of its own unreasonable if the underlying issues still exist and also in this particular case there is a public interest that the defendants breach of statutory duty is properly recorded in a judgement.

Taking this approach will not prevent you from beginning a separate case against Amazon – which I believe you should do – because they need to slap as well – and when Amazon pays you out because I'm quite sure they won't go to court – then you can tell the bank that you have got your money back from Amazon and so you have reduced the problem against them.

In my experience of not many BCOBS cases – because for some reason or other people don't like to bring them – the trick is to sue for a small amount and we have found that the bank is so anxious not to have this kind of judgement recorded against them that they generally speaking offer more, under conditions of confidentiality, to have the claim withdrawn and avoid the judgement

[BankFodder]

Quote

Dear Sir/Mdm

You had long enough. You've had since November. Your clients are still in breach of their statutory duty and your further delays are simply compounding the issue.

I shall be issuing the claim as promised. You have made no proposals. When you receive the claim form I don't see you have any choice other than to admit your statutory breach.

 

Once I have the judgement you can be certain that I will waste no time in enforcing it and also passing a copy to the FCA.

Yours faithfully

 

[BankFodder]

Did you bother to follow the BCOBS link which I posted in an earlier post?

 

The links here are intended to be followed so that you can inform yourself. We don't put them up for a laugh

[BankFodder]

Quote

Dear Sir/Mdm

Your letter of the X X X date refers.

I'm sure you are aware that your clients have acted unlawfully towards me by treating me unfairly. The FCA regulations make it clear that they have a statutory duty under the Financial Services and Markets Act. Your clients unlawful behaviour is complete and you have no defence against it. It is simply a question of implementing in full the recommendations of the ombudsman service and of addressing your client's unlawful behaviour by a suitable offer of reparation.

In view of your letter I'm prepared to delay the issuing of my claim for breach of statutory duty until next Friday close of business – 13 March. After that the claim will be issued over the weekend and you can be certain that it will be served on your clients by the Tuesday or Wednesday of the following week.

I have suffered enough inconvenience and this matter must be put right. Secondly, it is clearly in the public interest that apparently responsible and well resourced organisations such as Barclays bank are brought to book for breaking the law – particularly when we are talking about a statutory duty. This is not a simple matter of a misunderstood contract or some other vague obligation. The law is clear and your clients are well aware.

In terms of your threat to show your letter to the court on the matter of costs,  go ahead.  We are all aware of the small claims rules in relation to costs so don't bully me with this stuff. I'm litigating reasonably. I have been trying to achieve a solution since last year and I'm sure the court will note that your client only leapt into action since I threatened them with legal proceedings.

You can be certain I'll be showing your letter threatening costs against me plus this one plus all the rest of the correspondence to the court.

There is no doubt that I will obtain judgement in my favour and as I've already indicated I shall be passing a copy onto the FCA and elsewhere.

Please note that I'm not prepared to enter into any agreements under conditions of confidentiality or to enter into any without prejudice correspondence with you.

 

YF

 

 

 

[BankFodder]

Have you opened up an account with money claim and have you started drafting your claim? I think even with this extra week they are probably not going to be up to come back to you and I don't think you should delay any further.

Please start drafting your claim so it is already to go. Don't forget that we need to look at it and we have our own lives to lead as well so leaving things to the last moment for you may not be helpful to us

[BankFodder]

I think you should keep it short and simple. See my proposed draft below which hopefully should fit into the money claim character limit. See if you think there is anything wrong or anything missing.

Quote

The claimant's claim is for £100 for breach of statutory duty by the defendant contrary to Banking: Conduct of Business Regs made under Financial Services and Markets Act in that they treated me unfairly. After a dispute over a chargeback in January 2019 June in which Barclays received evidence but failed to look at it, they unfairly registered a CIFAS marker against me, depriving me of my bank account and access to my funds. I complaint to the financial ombudsman who in November 2019 held in my favour and recommended certain action by Barclays but Barclays have failed to implement them despite correspondence from myself and from the FOS. Barclays has been provided with all relevant information and is fully aware.

 

 

[BankFodder]

Don't forget that now you're making these threats, you really will have to go ahead with it if they failed to produce a sensible solution within the time limit.

This means that they will have to implement in full all of the ombudsman's decision is and also they will have to set about addressing any reputational damage they have caused in respect of your blighted credit file. There will have to be interest at a proper rate on the funds that you have been deprived of and also compensation for your lack of access to a bank account.

There will also have to be a sensible offer of compensation.

I have suggested that you sue them for £100 – and I can imagine that if you issue the papers for BCOBS that they will fall over themselves in an attempt to prevent a judgement being obtained. This means that it is possible they will's offer you what you're asking and I think you have a basis for saying that you refuse and that you prefer to go for judgement. This would cause them to threaten you with costs and you would have to be courageous enough to respond and say that it's in the public interest view to obtain judgement and therefore you are turning down their settlement offer. They won't be used to that kind of treatment – but hopefully they will then return with a higher offer. This has been our experience of running BCOBS actions in the past – but of course you can't guarantee it. The risk is yours – the victory is yours – but so is the defeat.

I think Barclays are behaving like dishonest pigs – but this is no more than you would expect from them – or any other bank.

It all depends on how much you want to face them out

[BankFodder]

Also be aware, that if they make offers to you they will attempt to make them on the basis of confidentiality. I suggest very strongly that you refuse to get involved in that and at the very least you make it clear to them that confidentiality will cost an extra – and I'm talking about quite a lot.

They will also try to make without prejudice offers to you – save as to costs – in other words they will be blackmailing you again with the idea of costs. This is the standard approach for banking bullies and their solicitors. In my book it amounts to an abuse of the court process because they are effectively trying to intimidate a litigant in person.

[BankFodder]

Okay – so long as you are aware that although the small claims rules on costs are on your side, there is always a 1% chance – probably not more than that – that they could go against you in certain circumstances.

[BankFodder]

Why was the Amazon refund never made? Is there any way that you could be held responsible or partially responsible for this?

Do you have evidence that the evidence you supplied was not attached? Can you prove that the case was closed without telling you?

 

Are you sure that no £150 was paid? We don't want to find egg on your face

You sent an SAR to the ombudsman – have you received a response? Have you received an SAR response from Barclays? Is there evidence that Barclays Centre question to the ombudsman and the ombudsman didn't respond?

Please will you not annotate the letters and the way that you have done.

Reproduce a letter using the quote function and then make your comments afterwards. Otherwise it's just too difficult to get through

[BankFodder]

In terms of the Amazon failure to refund – did you explain this all to the bank? Did you do this in writing?

We shouldn't be at a stage where it is "likely" that you have evidence. You are on the verge of bringing a legal action and you should have everything totally lined up and filed by now. This is extremely serious. Find it. Get all your papers together properly. This needs to be taken seriously.

Come back here when you have found the evidence.

[BankFodder]

What are the return dates for the SARs?

 

Also, what date do you send them the evidence? Do you have an accompanying note?

[BankFodder]

In principle I suggest that you hold off until you have received the SAR's from Barclays and from the ombudsman. Then go through them very carefully. We have a section of the library somewhere where we explain to you how to deal with a subject access disclosure.

However I think that you need to make an immediate response to the solicitors:

 

Quote

Dear Sir/Mdm

Thank you for your letter of X X X date. I dispute most of the contents in there but in particular I notice that you have not referred at all to the issue of the CIFAS marker.

As you know this is an essential element of the dispute between us and I'm giving you an opportunity to comment now.

I should warn you that I'm poised to bring a legal action and the issue of the CIFAS marker which was applied either unfairly or deliberately in the retaliatory way will be one of the issues raised in my claim.

Yours faithfully