Credit Card Fraud

[madsam]

My credit card was used fraudulently, first the card was used in Europe whilst I had the real card with me in the US, after it had obviously been cloned and it was used for some swipe transactions. These were obviously fraud and were eventually refunded but there were also some online transactions that had been made to a retailer abroad. At around the same time empty boxes were delivered to my address, that later turned out to be the tracking numbers the retailer had used to fulfill the transactions. This would not be refunded and I was held liable as it was delivered to my address.

 

The bank itself behaved appallingly, it took them 6 months from reporting the transactions as fraudulent for them to refund the monies, 1 day to reapply the amounts and then another 3 months to tell me why before referring to the FOS. Now I've been writing back and forth with this adjudicator at the FOS for the past 6 months and he's just not interested. He will not accept that it's fraud, apparently it's so unlikely that my address would be obtained with my card details - clearly if the card details had already been obtained it's likely that the address was also present I've provided and demonstrated as much evidence as I can to prove that I could not have made these transactions that were performed from the UK to order fake golf equipment from a Chinese retailer, even so far as showing that I was out of the country at the time and don't play golf, this apparently does not rule out the possibility that I authorised someone else to make the transaction. The retailer of counterfeit goods clearly is not the most trustworthy, and I've even proven that it was just empty boxes I received. This is evidence of at least auction fraud.

 

The adjudicator has now said that we've reached an impasse and is passing it on to an ombudsman for a final decision. My question is, is there anything I can do or evidence I can provide to prove my case and have them uphold my complaint to return the stolen funds?

 

My feeling is the ombudsman review for the final decision is just the final f- off. I also understand that the FOS uses similar methods to civil court hearings, so it is my feeling that if they won't listen then if I take it to court then they won't be any more likely to uphold.

[Argon]

Hi,

 

Were any of the transactions for amounts over £100? In that case then you could always turn the tables on the bank by saying: "OK, you insist that these transactions were properly authorised, but I can prove that the supplier just sent me an empty box. If your position is correct then that means I am entitled to make a claim against you, as the credit card issuer, for the amount of the transaction under section 75 of the Consumer Credit Act 1974!"

 

Of course you would want to word it carefully, in order to make it clear that you continue to dispute the bank's position that the transactions were authorised, and that in accepting the bank's position for the purpose of obtaining the refund you are merely being pragmatic.

 

I suspect that the transactions you mention are likely to have been for less than £100, in which case you wouldn't be able to make a claim under section 75. Thought I'd mention the possibility though, just in case.

[AuntieP]

The FOS and Ombudsmen don't use Court methods. The whole point of the system is to provide a quick answer based on the balance of probabilities rather than legal arguments. All the Ombudsman has to do is make a decision that is 'fair and reasonable'...he does not have to follow legal precedent, or the law itself.

 

Make sure that you do not 'accept' the Ombudsman's decision if you want the chance to go to court. Once accepted there is no appeal and its binding on both sides and you cant go to copurt. You can reject the Ombudsman's decision and then continue negotiating with the firm, or go to court, or both. Some firms are alleged to use the FOS system as a way of weeding out weak complainants, if you reject the FOS decision and approach the firm again, they MAY listen more carefully as they know you mean business and a court case is possible.

 

It may be months before the Ombudsman handles your case.

[madsam]

But is there anything I can do to win my case?

 

It was two transactions of £53 to the same retailer, so together over £100, will this still count with regards to S. 75? Plus it was over a year ago I reported the transactions as fraudulent, can I really go back after all this time and dispute as non-delivery? I made this point to the FOS that there is at least evidence of auction fraud, but they would not move on the fact that the complaint was about authorisation fraud.

 

I'd say the retailer/fraudster knew what they were doing, they were ready with the tracking numbers to my address when the transactions were disputed to provide this and win the dispute. Maybe they even knew to keep it under the £100 threshold. The only reason they stopped at the two transactions was they couldn't charge any more when they'd already hit it up to the limit with the cloned card transactions. The adjudicator even went so far as to suggest that I knowingly ordered the "goods" and took delivery myself, when I was 6000 miles out of the country at the time? There just doesn't seem to be any way of proving this. Would the ombudsman act any differently to the adjudicator?

 

It may be no huge sum but it's the principle, the bank behaved so appallingly, I should not bear any cost of something I didn't do.

[Argon]

I'm pretty certain that the £100 minimum applies to the individual transactions, so it looks like my section 75 suggestion isn't going to be much use here, unfortunately.

 

The Ombudsman can and will act differently from the adjudicator if he or she reaches a different view on the basis of the evidence. If you really can prove that both boxes were empty (e.g. does the postage prove that the seller knew they were too light?) then that is a very strong indication that something strange has been going on.

 

No doubt you've already done this, but check online to find out if there have been any other complaints regarding the seller in question. Get in touch with the Office of Fair Trading and see if they can give you any information.

 

If the transactions are out of character in terms of the way you normally operate your account then emphasise this to the Ombudsman. If you have had your account for a long time and this is the first occasion on which you have claimed that fraud has occurred, emphasise this too.

 

The really unpleasant aspect of this case is the fact that your honesty is being questioned, which adds insult to injury and must be very frustrating. I don't know if this would really help very much, but you might want to consider sending the Ombudsman a notarised affidavit affirming that you did not authorise the transactions in question. Maybe you could also arrange for some character references that are supportive of your honesty. It might help to convince the FOS that you are telling the truth if you show them how much you resent the implication of dishonesty.

 

Since the Payment Services Regulations 2009 came into force on 1 November last year, the burden of proof has shifted with regard to transactions that are claimed to be fraudulent. The banks now have to prove that the payment was properly authorised, rather than customers having to prove that the transaction wasn't theirs (check out section 60). I don't know whether this would have any bearing on disputed transactions that occurred before 1 November 2009, though.

 

You might want to consider approaching programmes like Radio 4's Moneybox (or You and Yours) or columns in the press that deal with consumer financial issues. Credit card fraud is very common, but the empty boxes angle and the helplessness of customers in the situation you describe might just catch their attention.

 

Best of luck in any case.

[madsam]

Thanks for your advice, I've spoken to the FOS who say I can make a claim under Section 75 but I need to raise that with the bank first and give them the usual 8 weeks. Do you have any letter templates for making a claim under Section 75?

 

What constitutes a payment that was properly authorised with regard to Section 60?

 

Thanks.

[madsam]

Thanks for your advice, I've spoken to the fos who say I can make a claim under Section 75 but I need to raise that with the bank first and give them the usual 8 weeks. Do you have any letter templates for making a claim under Section 75?

 

What constitutes a payment that was properly authorised with regard to Section 60?

 

Thanks.