financial ombudsman disupe

[colin813]

Hi

 

Im currently in dispute with an alleged debt, i have made a complaint to the company which i have now recieved a final response letter.

 

The letter says if im dissatisfied i can refer my complaint to the fos, however in the sentence prior the company suggest i contact them to discuss repayment to prevent legal proceedings.

 

Question

 

Can a company still proceed with legal proceedings if the account is still in the dispute process ?

[rebel11]

Hi colin

 

I believe they can, but they would look stupid as your defence would be that there is a dispute. Could you give more details?

[colin813]

Hi rebel thanks for the quick response.

 

I have a spread betting account which was used by my partners son whithout my knowledge, my account went from 69k in credit to 41k in debt over a 48 hour period.

 

I explained to the company what had happened and they are just sticking to a rule in the handbook that states - when you you access our on-line trading platform you will be deemed to have authorised all trading activity.

[colin813]

Just an update. There is also an indemnity and liability clause in the customer agreement which states , you will indemnify, protect and hold us harmless from and against all losses, liabilities, judgements, suits, actions, proceedings, claims, damages and/or costs resulting from or arising out of any act or omission by any person obtaining access to your account by using your designated account number and password, whether or not you authorised such access.The company issued me a Final Response Letter saying its your account your responsibility and further added if you are still dissatisfied i have the right to refer this matter to the FOS. I replied informing the company i will be doing that. Didnt have time to send all documents to the FOS prior going on holiday. I am now in receipt of a claim form from the commercial court, included is an acknowledgement of service form asking if i wish to admit or defend the claim.I spoke to the FOS today regarding the company and the use of unfair contract terms, FOS said i should send all docs asap and ask for fast track.Now my problem. i cant get legal aid because the debt is from spread betting (gambling) clearly the costs of the companies legal fees will be huge if i lose. I couldnt possibly argue the rights and wrongs about unfair contract terms in the high court. So im stuffed!!!My only hope is the FOS, and you guys. Im nearly upto my 14 days to respond then if i defend the claim i have another 14 days to issue a defence.Would a defence be the company hasnt followed protcol by following its own internal complaints procedure and ask for a stay pending the FOS findings?Any other advice most welcome

Edited June 16, 2011 by colin813
space words

[colin813]

sorry for the format for some reason it wouldnt let me space my paragraphs. hope you can still understand it

[Jasper1965]

Wow that's dreadful!!

 

it might be helpful if you could tell us the name of the company involved or point us towards the t&c's attached to the account if they exist online.

[colin813]

Hi jasper the company is spreadex and if you search for their customer agreement you can find it on line.

[colin813]

Would a defense be that spreadex failed to follow their own dispute rules and therefore haven't followed court protocol in trying to resolve disputes? Can I ask the judge for an adjournment pending the findings of the fos

[colin813]

Bump

[Jasper1965]

Well I've had a look through the terms and conditions and I have to say they represent far and away the most one sided t&c's I have ever read for any agreement.

They refer to the internal complaints procedure as being available on their wenbsite and I certainly can't find it there.

An example of how one sided the t&C's are is that in the event of a complaint not being upheld by the FOS they reserve the right to charge you the £500 fee.

 

Upon true construction of the t&c's I think there is scope for challenging a number of the terms and conditions under CPUTR's but this could prove a very lengthy process and it's not a matter for a client to pursue anyway.

 

All I can see that might be of use is clause 13 (8)(a) Covering notification to you in writing of all bets opened. Obviously if the account was being used without your knowledge such notifications of bets being made would serve as an alert to you so we have to look at whether any written confirmations of the bets were sent and/or received by you. If these notifications were not sent then they are in breach and that breach has caused you to suffer loss.

 

I also think you need to look at the exact circumstances of the manner the account was accessed eg was the username password combo written down or were the account details retrieved from Spreadex via some sort of "lost details" routine?

 

One thing you should do immediately is SAR Spreadex and get a copy of all records they hold. This could be critical evidence and should be obtained asap.

 

Another thought is what happened to the money? Did it all go on one large bet or was it a series of smaller bets and if so is there a pattern ie has another particular user been alerted to unusual usage and latched on to the account with the monies effectively being siphoned off to a third party?

 

I do think you should formally inform Spreadex that you are dissatisfied with their internal complaint resolution and you will thus be forwarding a full complaint to the FOS.