Hi,

Im not sure if Im posting in the right area so apologies in advance if Im not.

A brief background of my case. I had a credit card with Mint. Mint brought out a new alert system to remind you to pay your bill on time. I set an alert up for one day in advance of due date, and paid my bill one day after receiving the alerts.

Unfortunately the alert system was wrong and my due date was the day the alert was sent out, so my payment was a day late. I immediately rang the bank so they could look into their system and also reverse the charges and interest which they would charge. I had the most incredible phone conversation with the bank and I was even told that you cannot believe or rely on anything the bank says or sends you including bank statements!

Needless to say of course the fact their alert system was wrong (which I have proof of) was irrelevant and they would not reverse the charges.

That was October 06, and since then there have been numerous letters to and from both the bank and financial ombudsman (who I have tried to resolve the case through).

Over this period, I have also been pursued by numerous lawyers and debt collection companies over this claimed "debt", and have a default showing on my otherwise impeccable credit record. Having just discovered this forum I discovered both of these seem to be in breach of the Banking Code

The financial ombudsman's has found that the bank is the cause of the error, but they are making numerous mistakes including making up rules which are not in the credit agreement. As a result I am looking at taking the bank to court.

If anyone has any advice to give me, I would appreciate it.

Also I would like to know if I do go to court over this, am I able to claim compensation from the bank as well?

Thanks in advance for any help you can give.

If their alert system made the mistake then I would say that there should be no porblem getting full repayment.

Can you tell us more about what the FOS has said?

The situation is a little more complicated than I described above. When I told the bank I was cancelling the account, I was due money as "cash back" on the card (which is supposed to be paid each November), so I paid the outstanding amount less this cash back (and less their fees and charges).

I have been corresponding with an adjudicator in the financial ombudsman's office. In November 2008, the adjudicator suggested that the interest and fees would be wiped, & that the cash back owed was not in fact due to me as the account had been closed before November, but that the bank was willing to pay it as goodwill. I said that was not good enough and he stated that he would also recommend £75 compensation.

Then his formal report and offer came through. He found the bank was at fault for not sending through the alert at the correct time. He also found that I was not owed the cash back as there was a requirement for 12 months expenditure. He offered that the bank waive the fees and charges and give me the cash back amount as goodwill - but he has offered a total sum lower than what the bank/lawyers/debt collectors have been chasing me for. He also did not include the additional £75 he had said he would recommend.

So not only was the offer for the wrong amount, which would leave me with an amount still being claimed, he did not offer what he had stated he would recommend. Furthermore, there is no requirement for 12 months expenditure in the terms and conditions of my credit card - as long as the cashback due is over £1 & I am not in breach of the rules then it was payable in November. In other words he appears to be rewriting the terms and conditions to benefit the bank.

I have pointed these comments out to the adjudicator in two seperate letters and he has not even accepted that the amount mentioned in his formal offer is different from the amount I have been chased for over 2 years by the bank and its agents.

I now need to decide whether to take my case to court, or to continue with a more senior person in the ombudsman's office.

I am so annoyed at the attitude of the bank (when it would have been very easy to resolve) that I also would like to claim compensation from them for the stress and suffering. Am I able to claim for this if I do go to court?

Thanks once again for your help.

The only thing which concerns me here is the discrepancy between your figures and theirs.

It seems clear that you have won on the principle and so for that, well done.

Has the FOS actually explained why they have a different view of th sums owed.

Has the FOS explained why they hold a different view of the cashback offer?

I generally favour litigation to the FOS. This is because the FOS reasoning is very often not transparent, everything takes so long, the lack of interest on top of the copensation awards and also because certain issues tends not to be dealt with such as the breach of the DPA which seems to have taken place here.

You don't mention what the FOS has recommended in respect of the default on your file?

And by the way, has this default had any effect on you yet - such as refused or more expensive credit?

If you are copletely sure of the contract and your figures - meaning that it must be absolutley beyond doubt and not merey because there is some ambiguity over the interpretation of the contract then I would suggest that now is the time to disengage from the FOS and to take the matter to court.

I think that you need as a minimum, to be formally out of the contract, to have the default removed, to be compensated for the defaul and to be compensated for all of the time and inconvenience you have been put to trying to sort this out through the FOS. There is no doubt the contract entitled you to peaceful enjoyment of the contract and this has not happened.

In your favour, you have the FOS finding that Mint were in error. This is a big asset and the judge will accept this almost at face value.

What you have got against you is the apparent discrepancy over the figures.

The judge will be very cautious about this and you will have to make a very convincing case to support your version.

Has the FOS given a reasoned decision for his view of the figures?

I'd like to know more about the correspondence you have received from the FOS.

However, let me say that if you do take this to court, with the FOS finding already in your hand, it is highly likley that Mint will cave in to you - unless you are clearly wrong on the figures.

Thank you for your advice.

The figure I was expecting his offer to cover in relation to the debt owed is the figure that was claimed as default. This is the amount which had been mentioned in all correspondence and that I had been chased for by the debt collectors & lawyers.

The figure the FOS adjudicator mentioned in his offer is stated as the initial interest and charges from the bank caused them claiming the payment was a day late. It does not include interest charged to the account after that date.

The FOS adjudicator seems to state that since I asked for the account to be closed before the cash back was due to be paid, I am not entitled to it. I have sent him copies of letters showing the account had not been closed and still had an active credit limit months after this – these have been ignored. The adjudicator has also stated that there is a rule requiring 12 months expenditure on the account. I cannot see this anywhere in the terms and conditions that I have from both before and after this issue arose. The T&C’s state that as long as the cash back is more than £1 and I am not in breach of the terms then it is payable.

Since I have stated that the amount being offered is wrong and that there is no rule requiring 12 months expenditure the FOS adjudicator has just stated he sees no reason to adjust the offer, and has not given any more in the way of an explanation.

Regarding my credit rating, The FOS seems to have ignored the default on my credit rating in spite of me mentioning it in every letter to him. There is no recommendation which would correct it.

Yes I have been declined credit since this occurred – both a loan and credit cards. However when I mentioned this to the FOS adjudicator, he stated that I cannot get compensation unless I can prove the default was the cause of the loss. For example a letter stating that was why the credit was turned down.

I have received a notice of account termination from Mint in March 2007. I think that means I am formally out of the contract. Is that correct?

Thank you very very much for all your help.

Everything you say here bears out the advice that we give on this site almost all the time: do not go to the Financial Ombudsman. Do not go to the FOS.

Doesn't anybody understand yet, that even the minimal regulation of the financial industry which has been in place up until now is discredited. The Financial Ombudsman Service which is the consumer interface for the regulatory mechanism is also discredited.

The FOS is an industry scheme set up as a result of a corporation between financial institutions and which has been given the nod by successive governments which in fact have tugged their forelocks to the banks insistence that they should not be subject to any formal regulation.

The Financial Ombudsman Service is really just an extension of the banks customer service departments: it has to make a fist of doing a decent job but actually it's function -- just like bank customer service departments -- is to defuse, divert, sweep under the carpet, gives some superficial sense of having asserted oneself, but as you see, on the serious issues which really bother the banks such as the status of your credit file, it generally won't go there. Even though the FOS has recently been given the workings of credit files and the credit reference agencies as part of its brief.

Almost always litigate. There are very few circumstances in which the FOS is preferable. However where the FOS has made findings in your favour, as long as you have good reason to reject the recommendation then the findings will be good ammunition to take to court.

However if you do not have a good reason to reject the ombudsman's findings, then the court will be likely to take a dim view and to look at your claim very critically before finding in your favour.

Hi, I'm in a very similar position to PAKMANN, I was told by Santander (Then Abbey) on their intention to issue a default on my account in May 2009, I contacted them once I had received the notification but they told me it was too late to do anything about it and they defaulted my account in June 2009, I believed they were unfair in the way they had treated me and tried desperately

to have them consider the mitigating circumstances, remove the default and allow me to repay the amount I owed them (Something I have never disputed) l but they chose not to do so.

I tried their complaints team, customer services etc but they all said no and told me to take it to the Ombudsman.

I contacted the Ombudsmans office in July 2009, the initial assesment of my case was that Santander had done nothing wrong, I asked for the case to be reviewed and in August 2010 I received an ADJUDICATION which found in MY favour, The Adjudication stated that whilst it could not uphold all of my complaint, it DID find that Santander had treated me unfairly, that they should REMOVE the default and and come to a 'mutually acceptable arrangement' to repay allow me to repay the outstanding balance of my original current account.

Needless to say, Santander appealed this decision, then to my total surprise I received an email from the Ombudsman stating the Bank would like to make me an 'offer' basically they agreed to remove the overdraft and asked me to repay my account over 12 months. In effect they had accepted the adjudication! I asked the ombudsman about compensation for the almost 2 years of distress this has caused me etc and Santander offered me £150 for my inconvenience! I was asked by the Ombudsman to give reasons why I thought I should recieve more compensation, I told them of the effect this has had on my health, the effect this has had on my ability to obtain credit, the costs in terms of my time in dealing with this, additional stuff like having to rent a car as I'm unable to finance a new one etc. They put this to the bank and yesterday (Friday 18th Feb) I received an email from the Ombudsmans office saying the bank have 'declined' to increase the offer and have said that the case should now go to the official Ombudsman for a final decision.

I was given the following alternatives.

Dear Mr *****,

Further to my previous e-mails, I write to advise you that the bank has declined to increase its offer and has requested that the complaint be reviewed by an ombudsman.

As I have previously explained it is my view that an ombudsman is likely to consider the bank's offer as fair and reasonable in the circumstances and a decision is likely to reflect this. You are of course free to ask for an ombudsman's decision, reject it and then take the matter to court, but the decision would of course be part of the record.

Alternatively you can withdraw your complaint before a decision is issued and take legal proceedings against the bank.

Perhaps you could let me know as soon as possible, but in any event by 4 March 2011 at the latest, whether or not you want an ombudsman to formally review your complaint and issue a decision, or if you wish to withdraw the complaint.

I would like to know if you think I should take the case to a court for compensation, what would be my chances (considering the initial adjudication was in my favour)

If I do this then I will have to withdraw my case, and considering that it has taken so long to get here I'm rather reluctant to do this.

D