Complaints about the FOS

[WOOD73]

There is always one lol

 

No there isn't;)

[yourbank]

There is one saving grace the statue of limitations

Would that mean having to refuse to pay the unenforceable debt for 6 years + and then having to fight off DCA's?

[Suetonius]

This is true, but it could be years of abuse(term used lightly) and harassment, that you can do absolutely nothing about.

 

There is also another piece of legislation that you might find of interest.

 

Protection from Harassment Act 1997

 

1 Prohibition of harassment

(1) A person must not pursue a course of conduct—

(a) which amounts to harassment of another, and

(b) which he knows or ought to know amounts to harassment of the other.

(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

 

“Non-harassment orders

 

234A Non-harassment orders

 

(1) Where a person is convicted of an offence involving harassment of a person (“the victim”), the prosecutor may apply to the court to make a non-harassment order against the offender requiring him to refrain from such conduct in relation to the victim as may be specified in the order for such period (which includes an indeterminate period) as may be so specified, in addition to any other disposal which may be made in relation to the offence.

(2) On an application under subsection (1) above the court may, if it is satisfied on a balance of probabilities that it is appropriate to do so in order to protect the victim from further harassment, make a non-harassment order.

(3) A non-harassment order made by a criminal court shall be taken to be a sentence for the purposes of any appeal and, for the purposes of this subsection “order” includes any variation or revocation of such an order made under subsection (6) below.

(4) Any person who is found to be in breach of a non-harassment order shall be guilty of an offence and liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine, or to both such imprisonment and such fine; and

(b) on summary conviction, to imprisonment for a period not exceeding 6 months or to a fine not exceeding the statutory maximum, or to both such imprisonment and such fine.

(5) The Lord Advocate, in solemn proceedings, and the prosecutor, in summary proceedings, may appeal to the High Court against any decision by a court to refuse an application under subsection (1) above; and on any such appeal the High Court may make such order as it considers appropriate.

(6) The person against whom a non-harassment order is made, or the prosecutor at whose instance the order is made, may apply to the court which made the order for its revocation or variation and, in relation to any such application the court concerned may, if it is satisfied on a balance of probabilities that it is appropriate to do so, revoke the order or vary it in such manner as it thinks fit, but not so as to increase the period for which the order is to run.

(7) For the purposes of this section “harassment” shall be construed in accordance with section 8 of the Protection from Harassment Act 1997.”.

Edited March 11, 2009 by Suetonius
added a little more info

[Suetonius]

However, again this is the Court and not the FOS.

 

I would imagine that the FOS would struggle to request that a bank seeks repayment of an unenforceable debt stops, unless a Court has passed judgement that it could not issue an enforcement order as per s.127 of the CCA

[WOOD73]

yes but like I said, if I have made my position perfectly clear to them in no uncertain terms, then they continue to contact me, by daily phonecall or weekly letter etc. I feel this is unreasonable, but another i.e. adjudicator may say they are perfectly within their rights, because we cant say wether the agreement is enforceable, but there 'probably is a debt.

[Suetonius]

Would that mean having to refuse to pay the unenforceable debt for 6 years + and then having to fight off DCA's?

 

I don't know much about the Harressment Act, but after having a quick read, I guess it may be possible to apply to a Court for a non-harressment order.

 

If it is in relation to a unenforceable debt, I am guessing the creditor will back off rather than risk going to Court to be told that the debt is unenforceable.

[Suetonius]

Would that mean having to refuse to pay the unenforceable debt for 6 years + and then having to fight off DCA's?

 

This may also be a possibility

 

Administration of Justice Act (section 40)

 

40. — (1) A person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under a contract, he—

 

(a) harasses the other with demands for payment which, in respect of their frequency or the manner or occasion of making any such demand, or of any threat or publicity by which any demand is accompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation;

 

 

(b) falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;

 

 

© falsely represents himself to be authorised in some official capacity to claim or enforce payment; or

 

 

(d) utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not.

 

 

 

(2) A person may be guilty of an offence by virtue of subsection (1)(a) above if he concerts with others in the taking of such action as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment

 

However, again this would be a Court determination rather than an FOS determination

[WOOD73]

so if a complaint was put to the FOS about a creditor continuing in pursuing a 'debtor' when in dispute over CCA, would it not be fairer for the FOS to say to the creditor, either take him/her to court or leave them alone, rather than saying or implying just carry on what your doing and we'll say we cant rule on this as its a cca dispute.

[WOOD73]

an example - I have a 'debt'(again term used loosely) with littlewoods going back to 2001. the original amount was about £150, I have been paying amounts off this since then admittedly not large amounts and not regularly, however they now say I owe £250, and are adding charges of between £12 and £24 monthly, I recently requested a copy of cca which they have written back and told me they do not have.

now bear in mind I have been treated like dirt by these people for 8 years, they phone up almost twice weekly, send letters weekly etc. so I have told them I want all the charges and interest refunded, obviously theyre not going too just hand out, so I will end up complaining to the FOS, what do you think will be their response?

[Suetonius]

an example - I have a 'debt'(again term used loosely) with littlewoods going back to 2001. the original amount was about £150, I have been paying amounts off this since then admittedly not large amounts and not regularly, however they now say I owe £250, and are adding charges of between £12 and £24 monthly, I recently requested a copy of cca which they have written back and told me they do not have.

now bear in mind I have been treated like dirt by these people for 8 years, they phone up almost twice weekly, send letters weekly etc. so I have told them I want all the charges and interest refunded, obviously theyre not going too just hand out, so I will end up complaining to the FOS, what do you think will be their response?

 

Personally, I would attack it a different way.

 

Go for a refund of charges first, by the sounds of it that might cancel out the debt.

[angel_1]

hiya all

 

wow,,,,didnt i start a hornets nest? oops,,,

 

ok, simply putting my own case forward,,,,,

 

if i present fos with an unreadable and unlegible cca cos ts couldnt really read it properley and it was them who alerted me that it had to be easily legible,,, told me to go to fos

 

im not asking fos to consider whether its enforceable or not,,,,,

 

without a clear copy of the agreement how can trading standards advice me of my rights towards the agreement in question ?

 

surely this is a prime example of fos aiding me in my complaint since ive tried being reasonable and requesting clearer and better clarification from mbna but they have shut up shop and told me to go to fos

 

so if you are told to go to fos, again i reiterate is it a bat to bat type of passing the buck?

 

didnt get chance today to call fos but intend to do so in the morning,,

 

anyway its good to talk....laters angel x:cool:

[Suetonius]

hiya all

 

wow,,,,didnt i start a hornets nest? oops,,,

 

ok, simply putting my own case forward,,,,,

 

if i present fos with an unreadable and unlegible cca cos ts couldnt really read it properley and it was them who alerted me that it had to be easily legible,,, told me to go to fos

 

im not asking fos to consider whether its enforceable or not,,,,,

 

without a clear copy of the agreement how can trading standards advice me of my rights towards the agreement in question ?

 

surely this is a prime example of fos aiding me in my complaint since ive tried being reasonable and requesting clearer and better clarification from mbna but they have shut up shop and told me to go to fos

 

so if you are told to go to fos, again i reiterate is it a bat to bat type of passing the buck?

 

didnt get chance today to call fos but intend to do so in the morning,,

 

anyway its good to talk....laters angel x:cool:

 

Hello Angel,

 

One of the main purposes of the FOS is to ensure that when a mistake is made, the bank places the consumer in the same financial position you would have been in had the mistake not happened.

 

In relation to the bank providings you with a poor copy of your agreement, this in itself has not caused you a financial loss. So it would depend upon exactly what you are complaining about.

 

Remember that the FOS is not there to aide you or any other customer, as this would mean that it was biased to consumers which would impact its independent and impartial role.

[Suetonius]

I guessing by your strength of feeling Davey77, that you have made a complaint to the FOS with regard to the enforceability of a credit agreement. Would I be right in that assumption ?

 

If I am, as previously suggested by yourbank, it would be useful if we could debate a live case, could we debate yours ?

 

 

if you get the chance tomorrow Davey77, can you say if we can debate your case (if there is one).

 

If there is and we can, can you say what has happend since the FOS said whatever it has said.

 

Many Thanks

[Right Bunch of Sharks]

If a debt is unenforceable it still exists, just can't be enforced in Court.

 

Are you aware of any law/case law that supports your statement? Unfortunately post 259 you refered to did not reference any.

 

Thanks.

[WOOD73]

Personally, I would attack it a different way.

 

Go for a refund of charges first, by the sounds of it that might cancel out the debt.

and then some, not that there is a debt you understand.

[tosh1]

subbing

[Suetonius]

Are you aware of any law/case law that supports your statement? Unfortunately post 259 you refered to did not reference any.

 

Thanks.

 

Dimond v Lovell (HL 2000)

 

LORD HOFFMANN

 

"But the effect of section 61(1) of the Act is that she no longer has to pay."

 

"The real difficulty, as it seems to me, is that to treat Mrs. Dimond as having been unjustly enriched would be inconsistent with the purpose of section 61(1). Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay."

 

The precedent set by this case only states that the debtor should not have to pay. It does not say that the debt no longer exists.

 

 

Post 259 is a post made by Peter Bard, if you take a look at the Consumer Credit Act Agreement thread, you will see that Peter is an accepted authority (by us caggers on the CCA).

 

Furthermore the CAG site team have also stated:

 

If I can butt in.

 

If the agreement is not enforceable, it is just that - unenforceable. The debt still exists.

 

A F&F settlemnt means that the debt is satisfied and gone - a much better outcome IMHO.

 

Peter has also said:

 

hi

It is no good saying to creditors that you can stop paying because you have not provided a copy because it just isn't so. Ther is no legal argument to support it

 

If you use the argument that they wont take you to court. That argument applies in any case whether the agreement is properly executed or not you could just stop paying and take your chances.

 

There is no one more eager than me to take on creditors who grab your money and have no regard for your legal rights and protection, but if you write to them and use the act to sanction actions that it does not it just damages your creditability.

 

Peter

 

 

Are you asking out of interest or do you know something to the contrary ? If so, please share with the group

[Right Bunch of Sharks]

Thanks for your response. I am asking out of interest.

[Suetonius]

The way I personally would look at it (unless it was a fraudulent application) is that the debt exists until such a time as it is repaid or confirmed in court that it is classed as a gift as per the Wilson case.

 

Until is is officially stated in Court that the debt does not exist, I think it is more sensible to work under the illusion that it does exist. Rather than assume that it doesn't

 

 

One other thing that I would bear in mind is what happend to the Rankines.. Never take anything for granted

Edited March 12, 2009 by Suetonius
How could I forget the Rankine's

[Right Bunch of Sharks]

I was under the impression that a creditor with an unenforcable credit agreement never validly acquired any rights under the agreement and therefore did not have the right to charge interest on the capital sum for example.

This would of course have a bearing on the level debt that still exists. If indeed it does exist.

[Suetonius]

I was under the impression that a creditor with an unenforcable credit agreement never validly acquired any rights under the agreement and therefore did not have the right to charge interest on the capital sum for example.

This would of course have a bearing on the level debt that still exists. If indeed it does exist.

 

However, there is still the matter of the agreement being unenforcable. I think to ensure that an agreement is unenforceable you would have to apply to the Court for a declaration.

 

Consumer Credit Act 1974

 

142 —(1) Where under any provision of this Act a thing can be done by a creditor or owner on an enforcement order only, and either—

 

 

 

(a) the court dismisses (except on technical grounds only) an application for an enforcement order, or

 

 

 

(b) where no such application has been made or such an application has been dismissed on technical grounds only, an interested party applies to the court for a declaration under this subsection

 

 

 

The way I understand it, the agreement will not be deemed legally unenforceable, unless either the creditor seeks to enforce it or the debtor seeks a declaration from the Court, that the agreement is unenforceable.

Edited March 12, 2009 by Suetonius
added a little more :-)

[Right Bunch of Sharks]

However, there is still the matter of the agreement being unenforcable. I think to ensure that an agreement is unenforceable you would have to apply to the Court for a declaration.

 

Consumer Credit Act 1974

 

142 —(1) Where under any provision of this Act a thing can be done by a creditor or owner on an enforcement order only, and either—

 

 

 

(a) the court dismisses (except on technical grounds only) an application for an enforcement order, or

 

 

 

(b) where no such application has been made or such an application has been dismissed on technical grounds only, an interested party applies to the court for a declaration under this subsection

 

 

 

 

The way I understand it, the agreement will not be deemed legally unenforceable, unless either the creditor seeks to enforce it or the debtor seeks a declaration from the Court, that the agreement is unenforceable.

 

Are you saying that if a court cannot enforce a credit agreement the related debt does not exist?

[Suetonius]

Are you saying that if a court cannot enforce a credit agreement the related debt does not exist?

 

No that is not what I am saying,

 

I think that is something that would have to be decided by the Court as per s.127 (2)

[davey77]

You are missing the point. You seem an intelligent sort therefore why you are, respectfully, bypassing the main crux of the argument is anyone's guess:

 

My reasoning for dislike and distrust of the FOS is based partly on your recent sentence:

 

"As I understand it, it is not the role of the FOS to say whether a credit agreement is enforceable or unenforceable."

 

Let them the follow that ethos then.. but they do not. They choose one over the other.

 

If the FOS's role is 'dispute resolution', not enforcement but as an impartial and non regulatory role' then that's what i require of them. I am not interested in subsection 3 paragraph nothingness. (Especially if the FSA has been implicated in collusion with the lending community that assigned the rules that the FOS use in the first place in so doing to Judge their very lax criteria for that what they do, or do not, uphold. Based mainly it seems of who you do or do not get to talk to on the phone at the end of the day after being requested to call. (Note: Interesting that they do not put i writing the kind of statements they give you over the phone.. wonder why?)

But they end the written response with 'you agree with our view' which i didn't. Attempting perhaps to avoid any comeback later on that could be traced to them directly through written communication?

 

You need to see the other side of the same coin. Show me one family that has, albeit as mis-placed as we have initially been on occasion, in requesting the FOS intervene on the basis of an unenforceable credit agreement alone. Perhaps after the lender has complied with Section 78. (Not enforceable in Court though). The opinion of the FOS is "you, mr and mrs smith have a valid and entirely enforceable agreement" and that family (including 3 children) did not have the luck to find this website for help. They therefore believed that the irredeemably unenforceable agreement that cannot be enforced in Court with or with a court order IS wrongly enforceable and they are liable to start immediate payments..

 

..That family are now on the streets. Why? Because the agreement is valid and under the current consumer credit law they are forced to get into debt with other creditors, behind in the rent and bills? No. Because they believed the Financial Ombudsman Service's OPINION and tried to pay off an unenforceable debt thereby ending up with not enough money to live on and being put onto the streets.

Because there was a valid agreement in existence? NO. Because the FOS gave them incorrect and unfactual information in favour of the lender.

 

I require so called IMPARTIAL bodies to remain on the fence. Not dip their toes either side of that fence depending on what Law they choose to take notice of or not.

 

"If you are disputing the debt in a complaint to the FOS you would have to say why you dispute the debt. If a debt is unenforceable it still exists, just can't be enforced in Court." Exactly the kind of answer that would be more appropriate coming from the FOS, instead the response is "i don't give a stuff what's on the agreement or not, you've paid before, so pay up now. That's good enough for us at the FOS". Effectively, (minus the more polite wording they use) the answer to anyone's 'agreement complaint'. The FOS can 'hide' behind section 78 just as the creditor does but more, they can peek out from behind it, throw it in your face, then run off as if they had done all the could, patting themselves on the back 'job well and truly done'.

 

I do not object to the FOS stating they do not look at this type of complaint. I do not object to the FOS stating it 'is not their place to decide for OR against the enforceability of a legal document'. I DO however, object to them telling me any documents (before it has reached court in the first instance and being, until that time comes, irredeemably unenforceable) that it IS valid no matter what the Law states the requirements are. They are second guessing what a Court may, or possible may not, pronounce. You see the difference between asking the FOS to state 'this is unenforceable please' and asking them to look at a compliant without adverse pronouncement or judgement that will have repercussions later on?

 

"A decision on enforceability is only required if it went to Court, as enforceability means that it is enforceable in Court."

 

Not quite so i believe, as irredeemably unenforceable means just that - if the requirements of a pre April 2007 Credit agreement are not strictly adhered to. Certainly, an incompetent judge who has not been given the correct information or a well construed argument containing the relevant legislation could make a different pronouncement, but for the purposes of argument let us state that all judges are familiar with Section 60 and section 127 of the Consumer Credit Act plus others that are applicable. Although before that matter even gets to Court (and why do creditors cave in so many times before it does you have to ask) that agreement cannot be enforced.

 

Certainly you would need the creditor to supply in writing that the agreement is void or written off formal but in the mean time it is stalemate, and you have to to ask why so many stalemates on this forum if the creditor is in the right legally?

 

Jurisdiction is immaterial to me personally. I seriously doubt the FSA handbook gives the FOS the right to completely override Consumer Credit Law already in place and lace their own prejudiced priorities over it when ever they feel the need. And if it does, then the FSA handbook is also biased (and probably compiled by ex-bankers and credit card CEOs) as this report in the Times regarding the impartial status of their body could well suggest:

 

Exposed: the banks’ cosy ties to watchdog - Times Online

 

"The whistleblower claims: FSA staff were anxious not to antagonise the banks because of the potential impact on pay. The FSA’s regulatory staff were warned “not to frighten the horses” during visits to financial institutions because it relied on their cooperation. The FSA ethos was that it was “to serve” the industry which fully funded it."

"The consensus was you don’t rock the boat. If a firm complained, you could get marked down on your appraisal. It was deluded and immoral.”

 

Complaints by the FOS are upheld, but they are not in relation to agreements generally (as that could potentially be devastating to the credit industry compared to the lowly £500 'pay off' the FOS receive) and too many dismissed complaints would soon be obvious to the wider community and render the FOS either abolished or completely re-organised. Not something a grateful credit industry would wish for considering the amount of cash they would be out of pocket by if the FOS started confirming that unenforceable agreements were, at least until reaching a Court, just that. Unenforceable. Think of the cost to the credit industry if that were to happen.

 

Therefore as a consumer i am supposed to trust the FOS and their FSA handbook without question? I think not.

 

The FOS do have the leeway to dismiss a complaint early in the procedure without consideration of the merits. A fair and balanced action surely.

 

Under DISP3.3.1R, the Ombudsman may dismiss a complaint without considering its merits if he is satisfied that the complainant has not suffered, or is unlikely to suffer,financial loss, material distress or material inconvenience...

 

(10) considers that it would be more suitable for the matter to be dealt with by a court, arbitration or another complaints scheme...

 

(17) is satisfied that there are other compelling reasons why it is inappropriate for the complaint to be dealt with under the Financial Ombudsman Service.

 

The Ombudsman may dismiss a complaint without considering its merits if:

 

(2) the Ombudsman considers that the complaint:

(a) raises an important or novel point of law, which has important

consequences; and

(b) would more suitably be dealt with by a court as a test case.

 

Unfortunately we have to rely on the inconsistency of personal opinion:

 

3.8

Determination by the Ombudsman:

 

Opinion as to fairness and reasonableness

3.8.1

R

(1) The Ombudsman will determine a complaint by reference to what is, in his opinion, fair and reasonable in all the circumstances of the case.

(2) In considering what is fair and reasonable in all the circumstances of the case, the Ombudsman will take into account the relevant law (BUT IGNORE IT WHEN IT FEELS NOT APPROPRIATE), regulations, regulators’ rules and guidance and standards, relevant codes of practice and, where appropriate, what he considers to have been good industry practice at the relevant time.

Therefore if they feel that a complaint involves Consumer Credit Law (and any decision they make could somehow be in contravention of the CCA, they have the discretion to dismiss that complaint without opinion or judgement) and when that it is not clear what the outcome of that complaint could be, or the ramifications therein, they should dismiss without making Judgement contrary to current Consumer Credit Law.

 

Can you REALLY cut credit card debt? | Mail Online

 

"It cannot make a decision as to whether a credit agreement is enforceable, but it can investigate a case where there are specific concerns about the way a customer has been treated."

 

In that case, that's all i ask.

 

Suetonious - You have quick access to the relevant quotes by the (probably corrupt and biased) regulatory bodies. Have you had previous experience in this financial field professionally or just really quick at looking stuff up on the net?

 

There are no current and live cases as far as the FOS are concerned. Mine have been put in the bin with various degrees of negative ramifications. Although the Cap case whereby the FOS stated the 'application form was good enough to enforce the agreement' has been written off 3 days before a Court hearing i instigated.

 

The Mint case where the FOS stated 'it doesn't matter if the prescribed terms are on the agreement or not' is currently in the hands of a Solicitor who has agreed with my viewpoint and asked that the creditor to discharge my liability to pay the entire balance due to their lack of entitlement to enforce the account as per failures in sections 60 and 127 etc.

 

Likewise in regard to HFC (although the adjudicator in that instance correctly was impartial and stated it was not his place to decide upon the enforceability, or not, of the documentation in question,) my liability has been requested to be discharged in full for the reasoning stated re mint. Unfortunately other Adjudicators on other cases made up their own mind and didn't agree with the point of view of the HFC adjudicator. Showing the inconsistency of the FOS due to their previous 'impartial' careers in finance and banking.

 

All my cases are over with and referred to in my threads with Cap, Mint and HFC for the moment.

 

By the way: "non in legendo sed in intelligendo legis consistunt";

 

"The laws depend not on being read, but on being understood."

 

Try this instead: "corruptisima re publica plurimae leges" and take note of it's relevance when considering taking the literal truth of handbooks as gospel and infallible.

 

WOOD73:

"so if a complaint was put to the FOS about a creditor continuing in pursuing a 'debtor' when in dispute over CCA, would it not be fairer for the FOS to say to the creditor, either take him/her to court or leave them alone, rather than saying or implying just carry on what your doing and we'll say we cant rule on this as its a cca dispute."

 

Don't bother. The FOS are not interested in harassment, OFT guidance, if you have received an agreement, or if the account is in dispute or not. The FOS don't recognise 'disputed accounts' no more than the Creditors.

 

FOS re Mint: "Well, you owe the money (no, i don't actually as the Law stands and until a court decides otherwise) so you have to expect them to pursue you for it". This was the response to my 12 pages of OFT debt collection guidance and Banking code infringements. Nothing short of imminent Court action will generally stop harassment. Either that, or a letter from a Solicitor or publicity with a national newspaper.

ANGEL_1:

 

If the creditor has sent anything that could be construed as compliant to section 78 (current T&Cs, current unsigned 'true copy' agreement) then the FOS will not help as the unreadable original is not something you are entitled to be sent under the Act. They should possess that document to enforce in Court, but you have no rights to be supplied it. Big difference. Therefore the FOS will state that the creditor has complied with Section 78 (if you have been sent the above) and have fulfilled their duties.

Try them by all means, but don't hold out much hope. I would go back to TS stating the same (perhaps email the FOS on the subject to get a quick response) and, if confirmed by the FOS that the above scenario is what would be the case, then tell TS it is THEIR job to protect your consumer rights and to get on with it or you will go to the BBC watchdog program. Email them every day if you have to, remembering most TS offices are cowards and afraid of large financial institutions until you supply them the courage (or bad publicity associated with inaction).

 

p.s i hate the word 'debate'. Also the words 'lessons learned' and 'diversification' p.s.p.s The Rankines were Morons.

Edited March 12, 2009 by davey77
spelling

[WOOD73]

wow, that was impressive lol

again it comes back to the fos, siding with the banks.

if there is an agreement issue, then the fos should not say 'there is clear evidence of a credit relationship, so the debt must exist!'

they should say 'It is not our place to say,but if you, the financial institution thinks you can enforce in court, then go ahead. if it is believed that you cant, then quit the harassment.'

We all know that a creditor does not want to go to court, as all the unfair charges then have to stop being added, and even in cases where there is a perfect cca, they will only go to court just before it becomes statute barred, I believe this is pure abuse of the collection industry regs and guidelines, but the fos turn a blind eye.