FOS - delaying complaints?

[tifo]

Awards involving pain and suffering are likely to be higher than those involving distress or inconvenience.

 

I would say i suffer a lot when i recieve constant threatograms and i feel pain when i look at my credit report.

 

The threat of litigation and stat demands, oh, it makes me so stressed i can't work! The spectacle of a debt and defaults hanging over my head when they haven't complied with lawful requests causes me stress and depression.

 

I think i am seriously suffering and in pain, sir!

[tbern123]

That will more than enough pay for the 'losses' i am making.

 

I would say i suffer a lot when i recieve constant threatograms and i feel pain when i look at my credit report.

 

The threat of litigation and stat demands, oh, it makes me so stressed i can't work! The spectacle of a debt and defaults hanging over my head when they haven't complied with lawful requests causes me stress and depression.

 

I think i am seriously suffering and in pain, sir!

 

I doubt anyone would dispute the way in which dealing with DCA's and some creditors make you feel. After all most of the people in this forum, including myself have either gone through it or are going through it at the moment.

 

I know you have previously quoted claim amounts totalling in excess of £10,000, I don't think the FOS would agree to award anywhere near this figure.

 

All I would say, without any disrespect is that you need to be realistic in relation to the amount of damages that the FOS would award. Especially when you consider that a Soldier that lost his hand was only awarded (admittedly not by the FOS) £16k. I am sure you will agree the pain and suffering you have endured fails in comparison.

 

I am not in any way belittling, what you have gone through, as previous said I amongst have been through similar difficulties. I just feel that for your expectations to be met they need to be realistic, otherwise you will end up feeling disappointed and hard done by.

[tifo]

I know you have previously quoted claim amounts totalling in excess of £10,000, I don't think the FOS would agree to award anywhere near this figure.

 

All I would say, without any disrespect is that you need to be realistic in relation to the amount of damages that the FOS would award.

 

Thanks tbern. I've had it with some DCA's (Lowell especially) and want to give them back some of the same medicine they've given me (not that it made me feel any better!).

 

I don't want £10,000 from anyone. That figure was the total amount i am losing to DCAs/banks through the FOS. I don't think i'd ever get that much in compensation, even through court.

 

All i realistically want is a payment for harassment, default and my time etc. I would go for £1,000 per default (per case law), £1,000 for harassment and around £500 for my time. That makes it under £5,000 for most. I'd settle for around £2,500 per DCA, all in. That's not unreasonable.

 

Of course, it's about 15 DCAs at the moment ..... x2 as per their structure .....

 

Add to that, something from each of the CRAs for unlawful data processing in the absence of a valid agreement, maybe another £2,500 each for libel?

 

Or, just accept all their ramblings and lie on my back and roll over?

[tbern123]

I wish you the best of luck, I honestly do

[tifo]

I wish you the best of luck, I honestly do

 

Thanks tbern, i would need it, especially with Cabot as you have experience with them, but the same would apply to all DCAs as they run in much the same way.

 

If i had funds i would take them all to court but sadly not. However, i am talking to a few solicitor friends who may take the action on my part, pay the fees and reclaim on winning. They have insurance to cover their losses, if any, which i doubt they'll have.

 

I'll do all the legwork, they just issue in their name with me as their client. This is lawful, isn't it? There's nothing stopping a client providing info to his solicitors or doing some of the research?

[MarkieMark]

I wish they'd have sent me this ... i have proof they haven't applied relevant legislation and precedents to my complaints, in fact, they seem to have gone against them.

 

 

Give me your email address I will be more then happy to forward you a copy of the email.

[MarkieMark]

If you have to complain to the Financial Ombudsman Service, I would STRONGLY recommend request the following:-

To ensure that your complaint is investigated fairly request all copies of all documentation under section 7(1) of the Data Protection Act 1998 from the company you complained of.

It is advised that any requests made under the DPA are sent recorded because it is so easy to say we did not receive your request.

Make a second Data Protection request from the Financial Ombudsman Service; request them to erase names of other individuals. This is to ensure that you and the company in question will have same documentation. If documents disappear at least you have the opportunity to advise the FOS at a later stage.

Request a summary of the documents in their possession; this will be another opportunity to raise matters later stage.

Request that they do not destroy any documents without your permission or prior to destroying them to let you know.

[tifo]

Give me your email address I will be more then happy to forward you a copy of the email.

 

Thanks, i've PM'ed you.

[tifo]

Make a second Data Protection request from the Financial Ombudsman Service.

 

Been in touch with their legal department already re this. Got the name and email from another source re same matter.

 

They advised that the banks' evidence and submissions would not be sent as part of this request, as they don't consider everything with my details to be actually about me.

 

The same person then stated, by email, that if i accept then they will ask the bank to pay me directly, just send the Ombudsman settlement form back (which i never provided but they checked themselves).

 

I asked the Ombudsman to confirm the above and they wouldn't. I then asked the legal adviser to confirm again and to inform the Ombudsman and they said we didn't say that.

[MarkieMark]

Another avenue

 

CPR 31.16 provides that disclosure can be ordered prior to the commencement of proceedings where the Court is satisfied that it may dispose fairly of the anticipated proceedings.

[tifo]

MarkieMark, i've put that statement you detailed in #28 to the Service Review person looking at my complaint, they have come back and said they will answer my questions regarding the service i have received but will not look into anything else, i.e. we won't confirm that statement (to apply legislation etc) or change the decision, even if you have been disadvantaged.

[MarkieMark]

Tifo Just as I expected they would treat you.

 

From experience I tell you the FOS are not that good.

 

I looked at the following acts which applied to my complaint.

 

Data Protection Act 1998 Section 7/10

 

Unfair Contract Terms In Consumer Contracts Regulation 1999, which now applies to house purchases. Whippee about time.

 

Civil Procedure Rules 1998

 

Contracts (Rights For Third Parties) 1998

 

Consumer Credit Act 2006 about time they removed the threshold of £25,000.00 this will increase claims against financial organisations who lend money. Two claims instead of one for larger sums .

 

Despite what the Financial Ombudsman claimed, still took the developer to court and they settled out of court.

 

They told me that that Zurich did not breach the data Protection act but how wrong they were. The Information Commissioner Held my complaint and Zurich offered me a £100.00 but I refused. From experience I learned to have a paper trail for everything.

 

Their documentation says they are EXPERTS.

[MarkieMark]

I asked them about giving me a Fair Hearing they refused. This chap Michael Barnes was not prepared to investigate dispite giving them evidence to support the statements I had made.

[tifo]

the FOS know exactly what they are doing when they deal with consumers and organisations, it is deliberate.

 

the large corporates know exactly how to deal with the FOS and i think they have an agreement in place on the procedures and what steps they will take at each stage, i.e. FOS will write to them, bank will respond to investigate, FOS will tell consumer to hold. If consumer hasn't gone away after a few months, FOS will write to bank again, who will offer 50% of the sum claimed, FOS will tell consumer this is fair etc.

 

it's just another quango to keep the consumer thinking there is someone to refer to.

[jdey123]

There is compelling evidence of FOS bias against consumers and severe delays at Financial Ombudsman Service - Wikipedia, the free encyclopedia

 

The FOS is not required to adhere to the law, but to come up with a verdict which is fair and reasonable. This has been confirmed

in a case taken to judicial review by an IFA.

 

There isn't any appeal mechanism against an ombudsman's decision because it's felt that if there were, then IFAs and companies

would also have to have the right of appeal and would drag out the cases longer than they currently do.

 

I've read Lord Hunt's review which is more balanced than what I was expecting considering he was appointed by the FOS. One thing I will take up with him is his comment that Mr Michael Barnes CBE, the FOS Independent Assessor's appointment met the standards laid down by Lord Nolan's suggestions in to how public appointments should be conducted. As I understand it, Mr Barnes was a former member of the FOS board, and was initially appointed as the Independent Assessor in an interim role whilst they found a permanent candidate.

 

That said Mr Barnes' role is confined to looking at the standard of service rather than an adjudicator/ombudsman decisions.

Given that there are severe delays in the service, one wonders why, if he's truly independent, his annual report paints such a glowing picture of the FOS

 

If you are owed more than £1000, say, I'd definitely take your case to the small claims court rather than the FOS. At least the judge won't have a financial services background. The service is quite cheap (

 

The problem is how do you effectively reform dodgy public bodies? Power corrupts and most people don't have the time/inclination to ensure that it doesn't.

[MarkieMark]

JDey I agree with your comments 100%

They call themselves EXPERTS..... well they did not impress me with the sound knowledge.

It appears to me a game... on the balance of probabilities most consumers would give up the fight because of the long delays..... it took them 9 months to fully investigate my first complaint and my second complaint they advised me could take upto nine months....

You would get better results from the small claims court.

WHEN THEY ARE WRONG THEY DONT WANT TO REPLY TO YOUR LETTERS.

[tifo]

Some news ...

 

Had my three complaints looked at by the review team. One answer given for all, which is that the adjudicator and ombudsman made the correct decisions blah blah etc.

 

But, the three complaints all had different offers from the bank.

 

None of my questions re the guidelines/legislation used in decisions have been answered, especially on what basis they agreed to pay a third party my refund, when did such a third party become a part of the complaint, how was such a third party's legal entitlement to receive payment checke etc. The only answer given was that the bank has a working relationship with the debt agency already so can pay it my refund. Does a working relationship make it lawful?

 

No answer given to my request to view evidence/submissions from the bank, except a quote from the legal team, that i am entitled to receive the documents i ask for (under law) but am unlikely to get them. So the law says i can see them but they say they won't send them.

 

A disappointment then, but time to take it further.

 

I can see a claim here, maybe start a small one (£200), against the FOS based on the fact that their decision was made against their statutory requirement to use legislation/guidelines, thus making a flawed decision, resulting in the financial loss to me of the sum claimed from the bank, and sundry costs for time spent etc. I would seek an order to disclose the information i have asked as part of my complaint review and what they used to base their decision on.

 

At the end of the day, all i'm asking from them is to be fair and reasonable, as is their remit under statutory obligation. If they haven't been, why should i suffer a loss?

Edited June 6, 2008 by tifo

[Dougal16T]

Good evening all:

 

Just a thought...why are we not looking at the problem from another angle....see The Fraud Act 2006.....!!:grin:

 

Section 3 is the 'killer' section....

 

Makes Finance provider sending your money to DCA and not to you a Criminal offence - if you have any doubt I set out below text of the Act and a letter sent recently.....I must also say I have had numerous successes thanks to the Fraud Act 2006 - they (ALL FINANCE PROVIDERS) definitely do not want the Police to look into their behaviour!!

 

Copy of letter sent today to Mackenzie Hall....

 

Thomas Lloyd

Mackenzie Hall

30 The Foregate

Kilmarnock[

KA1 1JH 20th May 2008

 

 

First Class recorded delivery

 

Re: M XXXXXX

 

 

I do not acknowledge any debt to your company or any other person

 

I have today received your unsigned letter dated 9/5/2008. I will not be making any payment to you.

I will not be calling you. This is because I do not carry out any financial business on the telephone, all business between us must be in writing.

It is necessary to draw your attention to my letter to you dated 9th May 2008, sent by recorded delivery first class mail.

Royal Mail have confirmed receipt by you of this letter.

This letter required certain information from you – that information is still outstanding.

In the meantime, the contents of your letter dated 9th May 2008 constitute an offence under The Fraud Act 2006 .

 

The appropriate sections read:

 

Section 1. Subsection (3) sets out the penalties for the offence. The maximum custodial sentence of 10 years is the same as for the main existing deception offences and for the common law crime of conspiracy to defraud.

 

This section makes it an offence to commit fraud by false representation

Subsection (1)(b) requires that the person must make the representation with the intention of making a gain or causing loss or risk of loss to another. The gain or loss does not actually have to take place. The same requirement applies to conduct criminalised by sections 3 and 4. Subsection (2) defines the meaning of "false" in this context and subsection (3) defines the meaning of "representation". A representation is defined as false if it is untrue or misleading and the person making it knows that it is, or might be, untrue or misleading. Subsection (3) provides that a representation means any representation as to fact or law, including a representation as to a person's state of mind.

Subsection (4) provides that a representation may be express or implied. It can be stated in words or communicated by conduct. There is no limitation on the way in which the representation must be expressed. So it could be written or spoken or posted on a website.

Subsection (5) provides that a representation may be regarded as being made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention). The main purpose of this provision is to ensure that fraud can be committed where a person makes a representation to a machine and a response can be produced without any need for human involvement.

 

Section 3. makes it an offence to commit fraud by failing to disclose information to another person where there is a legal duty to disclose the information. A legal duty to disclose information may include duties under oral contracts as well as written contracts. The concept of "legal duty" is explained in the Law Commission's Report on Fraud, which said at paragraphs 7.28 and 7.29:

"7.28 ..Such a duty may derive from statute (such as the provisions governing company prospectuses), from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as that of agent and principal).

7.29 For this purpose there is a legal duty to disclose information not only if the defendant's failure to disclose it gives the victim a cause of action for damages, but also if the law gives the victim a right to set aside any change in his or her legal position to which he or she may consent as a result of the non-disclosure. For example, a person in a fiduciary position has a duty to disclose material information when entering into a contract with his or her beneficiary, in the sense that a failure to make such disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it."

 

Section 5. defines the meaning of "gain" and "loss" for the purposes of sections 2 to 4. The definitions are essentially the same as those in section 34(2)(a) of the Theft Act 1968 and section 32(2)(b) of the Theft Act (Northern Ireland) 1969. Under these definitions, "gain" and "loss" are limited to gain and loss in money or other property. The definition of "property" which applies in this context is based on section 4(1) of the Theft Act 1968 (read with section 34(1) of that Act) and section 4(1) of the Theft Act (Northern Ireland) 1969 (read with section 32(1) of that Act). The definition of "property" covers all forms of property, including intellectual property, although in practice intellectual property is rarely "gained" or "lost".

 

Section 6 makes it an offence for a person to possess or have under his control any article for use in the course of or in connection with any fraud. This wording draws on that of the existing law in section 25 of the Theft Act 1968 and section 24 of the Theft Act (Northern Ireland) 1969. (These provisions make it an offence for a person to "go equipped" to commit a burglary, theft or cheat, although they apply only when the offender is not at his place of abode.) The intention is to attract the case law on section 25, which has established that proof is required that the defendant had the article for the purpose or with the intention that it be used in the course of or in connection with the offence, and that a general intention to commit fraud will suffice. In R v Ellames 60 Cr. App. R. 7 (CA), the court said that:

"In our view, to establish an offence under s 25(1) the prosecution must prove that the defendant was in possession of the article, and intended the article to be used in the course of or in connection with some future burglary, theft or cheat. But it is not necessary to prove that he intended it to be used in the course of or in connection with any specific burglary, theft or cheat; it is enough to prove a general intention to use it for some burglary, theft or cheat; we think that this view is supported by the use of the word 'any' in s 25(1). Nor, in our view, is it necessary to prove that the defendant intended to use it himself; it will be enough to prove that he had it with him with the intention that it should be used by someone else."

Subsection (2) provides that the maximum custodial sentence for this new offence is 5 years.

 

Section 7 makes it an offence to make, adapt, supply or offer to supply any article knowing that it is designed or adapted for use in the course of or in connection with fraud, or intending it to be used to commit or facilitate fraud. For example, a person makes devices which when attached to electricity meters cause the meter to malfunction. The actual amount of electricity used is concealed from the provider, who thus makes a loss. Subsection (2) provides that the maximum custodial sentence for this offence is 10 years.

In the Magistrates Court the sentence for a single offence may not exceed 12 months. However, Section 78 of Powers of Criminal Courts Act (Sentencing) Act 2000 imposes a maximum of six months. This was due to be changed in November 2006 and will change if Section 154 Criminal Justice Act 2003 is activated. As at 16 January 2007 it has not been activated so the maximum penalty is restricted to six months.

 

Section 8: "Article"

Section 8 extends the meaning of "article" for the purposes of sections 6 and 7 and certain other connected provisions so as to include any program or data held in electronic form. Examples of cases where electronic programs or data could be used in fraud are: a computer program can generate credit card numbers; computer templates can be used for producing blank utility bills; computer files can contain lists of other peoples' credit card details or draft letters in connection with 'advance fee' frauds.

 

Section 12 repeats the effect of section 18 of the Theft Act 1968. It provides that if persons who have a specified corporate role are party to the commission of an offence under the Act by their body corporate, they will be liable to be charged for the offence as well as the corporation. By virtue of subsection (2)(a) and (b) this offence applies to directors, managers, secretaries and other similar officers of companies and other bodies corporate. Subsection (3) provides that if the body corporate charged with an offence is managed by its members the members involved in management can be prosecuted too.

 

Itis now too late to reverse your position, as a report has today been passed to the OFT.However, I am conscious of the possibility that their enquiries may be protracted and so therefore I have today made a formal complaint to the Police, providing a S.9 Witness Statement, together with first generation copies (taken by the Police) from the documents you sent to my address. My request for this matter to be investigated under the Fraud Act 2006 has been accepted and enquiries are today commencing.

 

Sorry it's a bit lengthy...but does anyone have any comments?[

Best wishes to you all

Dougal:cool:

[tbern123]

I am being really dense on this one. I don't get it..

 

I have read the act and section 3.

 

I don't get what information has not been disclosed

[Dougal16T]

Hi,

 

You're not being dense at all...it takes a bit of research to see how this applies to individual cases - especially in the light of the information which you require being with held?

 

Regards

 

Dougal

[tbern123]

Thanks Dougal,

 

I am not sure if the Fraud Act would really apply to Tifo's circumstances. By his own admission he did not originally pay the charges. So he is not suffering a loss by the refund being made to a DCA.

 

Section 5 of the Fraud Act defines a loss as:

 

(4) “Loss” includes a loss by not getting what one might get, as well as a loss by parting with what one has.

 

In real terms, Tifo has not actually suffered a monetry loss. If he had paid the charges and then the refund was made to the DCA, I could understand that he has suffered a loss as defined by the Fraud Act.

However, as the refund is for something he has not paid, no actual loss has really occured. You can't really lose something you never had.

[tbern123]

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

[Dougal16T]

Good morning,

 

Well whilst I agree with the facts, the actual payment made regarding the refund should have been made to the account holder and not to the DCA. The fact that Tifo did not pay the charges to start with is perhaps at this point irrelevant.

 

Needless to say if Tifo is happy with the result he has at this point, then no further action could be the answer - BUT my point is simple the law does not permit the original provider to forward refunds to the DCA.

 

Any refund is due to the original account holder and NOT the DCA - the act by the original provider in forwarding the refund to the DCA is an act of theft - (See Theft Act 1968 as amended).

 

Bear in mind this: Once a DCA s involved the debt has usually been sold to the DCA, (although I accept that sometimes the DCA may be acting on behalf of the original provider) - BUT generally speaking I have found this not to be the case. (Also a DCA acting for the provider will take a more pragmatic approach in most cases depending on the account history.)

 

I am not trying to muddy the waters, merely to direct thinking along a slightly different track.

 

I can say that I have had success with the original providers in several cases forwarding the refund to me and not the DCA because of this very point of law - they are aware that it is a fraudulent transfer' to do so, and therefore once this is pointed out to them they send the account holder the money.

 

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. 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.

 

I do hope this helps - I think that is is vital to look at any problem from as many 'angles' as possible!

 

Best regards to everyone.

Dougal

Edited June 9, 2008 by Dougal16T
To clarify my thinking......I hope....

[tbern123]

Any refund is due to the original account holder and NOT the DCA - the act by the original provider in forwarding the refund to the DCA is an act of theft - (See Theft Act 1968 as amended).

 

Theft as defined by the act is

 

— (1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.

 

I am not 100% sure that a refund to reduce the debt good legally be classed as permanently depriving as this would reduce the total amount payable so when it comes time to repay the debt, you will in turn receive the benefit of this refund. (putting aside part and reduced settlements)

 

If the refund to a DCA could be classed as theft, then what could the claim for a refund for charges that weren't originally paid be classed as ?

 

Surely claiming a refund for something you have not paid could be classed as obtaining funds under false pretenses.... It may help if I explain the way I think about it. I see it as exactly the same as going into a shop and asking for a refund for a TV you didn't buy in the first place

 

Boy I will win some fans for the above.

[Dougal16T]

Hello again!

 

The act is clear as you have said : BUT think on this

 

'Permanently depriving'.....?

 

The orginal creditor sells the debt. They are paid for this by the DCA. The original creditor is satisfied.

 

The debtor asks the original creditor for a repayment of charges.

 

The credtor agrees and sends the money to the DCA.

 

No problem? Well actually there is, you see the money paid across by the original creditor to the DCA actually 'belongs' to the debtor.

 

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 take the (somewhat jaundiced) view that in the event of money being sent by the original provider to the DCA and the DCA accepting it - there is also an offence possibly committed by the DCA - that is to say :

 

Theft Act 1968

 

Handling stolen goods

 

22.-(1) A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.

(2) A person guilty of handling stolen goods shall on conviction on indictment be liable to imprisonment for a term not exceeding fourteen years.

 

 

It just shows you how my strange mind works - I think this when as soon as I suggest to the Solicitors acting for the original creditors that tese aoofences may/or have been perpetrated, within 48 hours they agree to pay the money to me - and recall it from the DCA!

 

More food for thought?

 

Best wishes as ever

Dougal