Cap1 & CCA return

[un1boy]

Name & Registered Office:

FINANCIAL OMBUDSMAN SERVICE LIMITED

SOUTH QUAY PLAZA

183 MARSH WALL

LONDON

E14 9SR

Company No. 03725015

 

Status: Active

Date of Incorporation: 26/02/1999

 

Country of Origin: United Kingdom

Company Type: PRI/LTD BY GUAR/NSC (Private, limited by guarantee, no share capital)

Nature of Business (SIC(03)):

9305 - Other service activities

Accounting Reference Date: 31/03

Last Accounts Made Up To: 31/03/2006 (FULL)

Next Accounts Due: 31/01/2008

Last Return Made Up To: 26/02/2006

Next Return Due: 26/03/2007

Previous Names:Date of changePrevious Name06/12/1999FINANCIAL SERVICES OMBUDSMAN SCHEME LIMITED

 

 

Comments please

[un1boy]

The proposals build on general agreement following earlier consultation that:

• the Financial Ombudsman Service should be funded by a combination of a "general levy" paid by all firms under the ombudsman service's jurisdiction and a "user pays" element (ie case fees) paid by firms for individual complaints;
  
• for the first year of the Financial Ombudsman Service's operation, the proposal to raise 50% of the operating costs through a general levy and 50% through case fees was a reasonable starting point but that the aim should be to increase the "user pays" element in the light of experience; and
  
• allocation of the general levy should be related to the budgeted costs of handling complaints in each industry sector, to reflect the way that different sectors generate different levels of complaints.

Taking this as a starting point, the proposals have been developed in the light of the FSA's proposals for its own arrangements for raising fees after the Financial Services and Markets Act has come into force (at "N2"),and in close consultation with an Industry Funding Group set up by the FSA and the Financial Ombudsman Service.

The key proposals on funding the Financial Ombudsman Service are as follows:

• for levy purposes, firms should be grouped according to activity into a number of 'industry-blocks' which have been closely aligned with the proposed FSA fee-blocks;
  
• an agreed portion of the Financial Ombudsman Service's budget (50% in the first year) should be allocated between those industry-blocks broadly on the basis of the number of complaints each sector is expected to generate;
  
• firms will then be levied in line with the amount of business which they conduct in each industry-block;
  
• the remaining portion of the Financial Ombudsman Service's annual budget should be raised from case fees, paid by individual firms at a flat rate per case closed by the ombudsman service;
  
• the costs of setting up the Financial Ombudsman Service should be recovered over the first 3 full financial years after N2, by way of a supplementary levy on all firms which are covered by the Financial Ombudsman Service.

Commenting on the arrangements, the FSA's Chief Operating Officer, Paul Boyle, said:

The proposals take account of the FSA's own fee proposals but they reflect the different nature of the activities of the Ombudsman Service. We are keen to get the views of the industry and consumers on the proposals.

Ian Marshall, Chief Operating Officer of the Financial Ombudsman Service, said:

I believe that these proposals provide a sound basis for the funding of the service and one which we will be able to refine in the light of experience. The input of the Industry Funding Group has been an invaluable help in devising proposals which are as fair as possible to each sector.

 

[JULI99]

Wonder if anyone can comment on the following. Forgive me if I have not used the right terminology but if you can't get the gist of what I'm saying please just ask.

 

If the Card Payment Protection Insurance was not set out on the credit agreement but was taken from day 1, would that mean the credit agreement was improperly executed and as such makes the debt nul and void. I am certain I did not ask for any insurance.

 

I have three credit cards in this position where insurance was taken out from inception but was not "mentioned" on the credit agreement, and I know I did not ask for it.

 

I know I should have noticed the insurance sooner but with so much going on in my life sometimes I didn't even have time to open my statements let alone read them.

 

Anyone advise which route I should pursue.

 

1. Go for all the debt written off because of an improperly executed credit agreement.

 

or

 

2. Just add the CPP + interest to my charges and claim back a lump sum.

 

Many thanks

 

juli99

[Peterbard]

HI

 

I am probably being a bit naive so i appologise in advance but in my expriance the FSA have been a pain in the Backside to most of the financial institutions i have had dealings with and quite rightly so.If it is the banks that are paying for this i think that is poetic justice. Mind you I have never had reason to contact them on a individual basis and have only used them, or more truthfully been persued by them in a commertial setting when they are safeguarding publics funds from fraud or incompitance.

 

Peter

[Peterbard]

hi Just re read my last posting

 

Makes me sound lik a gangsster or something. What i meant was, in my previous role as Credit Union developement officer I had to ensure that the CUs I was resoponsible for kept on the right side of the FSA or they come down on you (quite Rightly) like a ton of bricks.

 

Peter

[noomill060]

Peter the Gangster

[tamadus]

This is what needs tightening up the limitation Act(1980) sets a limit of 6 years before debts are stature barred.With mortgages it's 12 years.This is the unfair legalation in the Act.Tam hope you got the result you wanted will mail you later.

 

The Terminator.

 

I definitely got the result I wanted

 

Time was limited owing to the case only having a 5 minute listing, the repo was of course not given and the Judge has ordered them to appear for a full hearing to cover the points I raised, so unless they decide to come to an amicable settlement we get our day in court by order of a District Judge. And yes I will ask for standard disclosure

[tamadus]

Wonder if anyone can comment on the following. Forgive me if I have not used the right terminology but if you can't get the gist of what I'm saying please just ask.

 

If the Card Payment Protection Insurance was not set out on the credit agreement but was taken from day 1, would that mean the credit agreement was improperly executed and as such makes the debt nul and void. I am certain I did not ask for any insurance.

 

I have three credit cards in this position where insurance was taken out from inception but was not "mentioned" on the credit agreement, and I know I did not ask for it.

 

I know I should have noticed the insurance sooner but with so much going on in my life sometimes I didn't even have time to open my statements let alone read them.

 

Anyone advise which route I should pursue.

 

1. Go for all the debt written off because of an improperly executed credit agreement.

 

or

 

2. Just add the CPP + interest to my charges and claim back a lump sum.

 

Many thanks

 

juli99

 

Interesting question Juli,

 

Do you have copies of the credit agreements for these cards ? the PPI should be included as it affects the total charge for credit. If it's not included then I would go for getting then declared as void.

 

My other question is how long have they been running, as it could be argued that you should have spotted it earlier

[joneshousehold]

Can I raise a discussion point of the CCA requests?

 

If the reply is received out of the 12 days + 1 month time and is faulty - say not signed by the creditor, there is no agreement. There is nothing to enforce and no authority to recover the now non-existant debt. There is equally no authority to pass details to any 3rd party such as CRA's. That's quite straightforward.

 

My question concerns those where the paperwork is received after the 12 days + 1 month and is in order, all signed etc etc. Strictly there is a valid agreement and it can only be enforced by an order of the court. The creditor will not want to tell the court they are guilt of an offence so will probably write off the debt. Strictly the debt does exist and so does the agreement. If the creditor said they will not pursue the debtor could they still register info with the CRA as the agreement does exist? Do we have to protect ourselves by writing to terminate the agreement - that way they cannot enforce the clause requiring the debtor to repay any amounts owing and they also cannot notify anything to the CRA.

 

Alternatively would terminating the agreement create some other problem I haven't thought of?

[Peterbard]

Hi

 

Unfortunately even without the signature of the creditor the debt is enforceable with an order of a court, the debtor signature is required however and if not apparent renders the agreement unenforceable under 127.

 

According to section 77-79 the creditor is not entitled to pursue the debt whilst the default continues this means that once the agreement is forth coming the creditor is free to pursue.

As you quite rightly state the creditor will have committed an offence if the documents were not produced in the timeframe and may consider it not to be in his best interest to do so.

There is no legal requirement for the creditor ro cancel the debt in this instance to my knowledge,and whether you would be able to cancell the notification to the cra would depend on the form and content of the reply you recieved from the creditor.If they said we agree to write off the reminder of the debt they are not admitting that there was a contract so the default on your part would stand and so would the adverse entry on your cr,if however they were to say that no agreement existed then you would be able to tell them to instruct the cra to remove the default record as you have never given permission to divulge data.

If the documents were produced at whatever time the default on their part would be lifted as per section 77 so you could in my opinion only be able to close the account by using the early settlement sections of the Act.

 

Peter

[JonCris]

Hi peter I don't think that's correct because as things stand now any agreement must be signed by both parties & if it isn't, a technicality though it is, it is unenforcable.

 

It is for this & others reasons like it that the CCA 2006 allows the court to disregard such an oversight & enforce the agreement

[un1boy]

As far as I understand it, if they fail to provide the agreement after the 12 days and calendar montht then the agreement is unenforcable without a court order - even if they produce it.

 

Therefore, as they cannot enforce any of the agreement they can't enforce the terms and conditions either - ie they cannot process your info to CRA's/DCA's or other third parties. Until/unless that is they get it enforced through the court.

[Peterbard]

Sorry i have been so long I have beeen looking for a previous post i answered on this i can't find it anyway.

 

Section 61 says:

 

61 Signing of agreement

 

(1) A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed

terms and conforming to regulations under section 60(1) is signed in the

prescribed manner both by the debtor or hirer and by or on behalf of the

creditor or owner,

 

And section 65 says:

 

65 Consequences of improper execution

 

(1) An improperly-executed regulated agreement is enforceable against the

debtor or hirer on an order of the court only.

 

So it is clear that if one signature is missing you need acourt order to enforce.

 

But 127 (3) says:

 

(3) The court shall not make an enforcement order under section 65(1) if

section 61(1)(a) (signing of agreements) was not complied with unless a document

(whether or not in the prescribed form and complying with regulations under

section 60(1)) itself containing all the prescribed terms of the agreement was

signed by the debtor or hirer (whether or not in the prescribed manner).

 

No Mention of the creditor, so an agreement without the debtors signature is unenforceable but an agreement without the creditor is enforceable albeit with a court order as per 61

 

Regs

peter

[Peterbard]

As far as I understand it, if they fail to provide the agreement after the 12 days and calendar montht then the agreement is unenforcable without a court order - even if they produce it.

 

Hi Uni

Section 77 says that they cannot pursue whilst the they are in default once they provide the document they are no longer in default

Reg Peter

[un1boy]

Hi Uni

Section 77 says that they cannot pursue whilst the they are in default once they provide the document they are no longer in default

Reg Peter

 

Hi Peter

 

I see, even if they have committed an offence?

[Peterbard]

Hi Uni

 

If they have the gonads for facing a possible criminal charge .

 

Regs

Peter

[un1boy]

Thanks Peter,

 

So it is as I thought: If they have commmited an offence, the agreement (and terms conditions) is unenforcable without a court order and so they must remove all information supplied to thirs parties unti/unless they receive an order?

[paulwlton]

We know after 1 month a criminal offence has been commited and the agreement is unenforceable whilst in default, we also know the offence is a level 4 on the criminal standard scale, I recently contacted a local solicitor regarding this he said to prosecute you need to contact the relevant authorities. who are they.?

I think the local councills legal department who are responsible for weights and measures are worth aproaching.

 

Enforcement of the regulations

Breach of the Agreements Regulations or the Information Regulations, or the relevant provisions of the Act, may render an agreement unenforceable – see above. In addition, breach may be actionable under Part 8 of the Enterprise Act 2002 (EA02). This gives certain enforcers power to seek court orders against businesses that infringe, or in certain circumstances are likely to infringe, specified legal obligations to consumers, where this harms or would harm the collective interests of consumers.

 

Enterprise Act 2002.

Enforcers

(1) Each of the following is a general enforcer-

(a) the OFT;

(b) every local weights and measures authority in Great Britain;

[Guest The Terminator]

We know after 1 month a criminal offence has been commited and the agreement is unenforceable whilst in default, we also know the offence is a level 4 on the criminal standard scale, I recently contacted a local solicitor regarding this he said to prosecute you need to contact the relevant authorities. who are they.?

I think the local councills legal department who are responsible for weights and measures are worth aproaching.

 

Enforcement of the regulations

Breach of the Agreements Regulations or the Information Regulations, or the relevant provisions of the Act, may render an agreement unenforceable – see above. In addition, breach may be actionable under Part 8 of the Enterprise Act 2002 (EA02). This gives certain enforcers power to seek court orders against businesses that infringe, or in certain circumstances are likely to infringe, specified legal obligations to consumers, where this harms or would harm the collective interests of consumers.

 

Enterprise Act 2002.

Enforcers

(1) Each of the following is a general enforcer-

• (a) the OFT;

• (b) every local weights and measures authority in Great Britain;

 

They forgot to add The Terminator

[paulwlton]

Nice one.

[tamadus]

Hye dont forget little old tam

 

Barclaycard haven't responded yet but lloydsTSB must be seething as I got a reply inside 2 days. plus all phone calls from them seem to have stopped, although somebody else who witholds the number keeps trying lmao.

 

letter received this morning from Lloyds which is obviously retaliation even though I actually resumed payments.

 

Next on my list are GEMoney and assetlink who are about to find that not playing the game results in me cancelling payments agreement or not. I have pretty much decided to cancel payments while I nail them down much as tbern is doing with cabot. I figure the worst they can do is go to court (despite all their offences) and apply for a CCJ (which I will defend on the basis of their offences) In the event the court does grant it then I offer whats already been offered That way at least the court will stop further interest and may even agree they should have frozen it when my DMP started. Instead of making a bad situation worse and cocking a snoot at CCCS and my other creditors by expecting their full amount whne the rest are playing the game.

[un1boy]

Wow, good luck Tam -keep us posted!

[Guest The Terminator]

Thought I'd just inform everyone on here that I've had a DCA ring me yesterday and today (just noticed the missed calls on my phone.Now it is my understanding that they can only ring between Mon-Fri as per the OFT guidelines on debt collection.Now I was just wondering and perhaps one of the mods may have some input here.The Terminator is seriously thinking about going to court to get an injunction against this particular DCA and for good measure stick one into the OFT as well.I don't know if this has been tried and can be done online so any help/ suggestions will be welcome.

[tamadus]

Thought I'd just inform everyone on here that I've had a DCA ring me yesterday and today (just noticed the missed calls on my phone.Now it is my understanding that they can only ring between Mon-Fri as per the OFT guidelines on debt collection.Now I was just wondering and perhaps one of the mods may have some input here.The Terminator is seriously thinking about going to court to get an injunction against this particular DCA and for good measure stick one into the OFT as well.I don't know if this has been tried and can be done online so any help/ suggestions will be welcome.

 

I thought the guidelines were monday - Saturday between 8am and 9pm ?

 

Sunday is a definite no-no and well outside the guidelines.

 

When are these companies going to learn that we are onto them for their blatant abuse of the law and their own regulatory guidelines? You would expect them to tighten their proceedures up to avoid getting into situations which will only result at some stage in them having to appear in court and pay the penalty, plus they risk losing their Credit licences.

 

Instead they keep compounding the evidence against them by breaching yet more of the rules.

[maybelline]

Hye dont forget little old tam

 

Barclaycard haven't responded yet but Lloyds TSB must be seething as I got a reply inside 2 days. plus all phone calls from them seem to have stopped, although somebody else who witholds the number keeps trying lmao.

 

letter received this morning from Lloyds which is obviously retaliation even though I actually resumed payments.

 

Next on my list are GEMoney and assetlink who are about to find that not playing the game results in me cancelling payments agreement or not. I have pretty much decided to cancel payments while I nail them down much as tbern is doing with cabot. I figure the worst they can do is go to court (despite all their offences) and apply for a CCJ (which I will defend on the basis of their offences) In the event the court does grant it then I offer whats already been offered That way at least the court will stop further interest and may even agree they should have frozen it when my DMP started. Instead of making a bad situation worse and cocking a snoot at CCCS and my other creditors by expecting their full amount whne the rest are playing the game.

 

hello tamadus, why did you resume payments to lloyds, I just stopped payment to the people who have charged the MIG I believe this has been missold after querying it here, and will be challenging, but sitll trying to sort out the paperwork, just cannot understand descriptions and so on, they used to turn up at my doorstep and ring me from the doorstep over and over again if I refused to speak to them , then they wrote to me and said they would continue to do so until I spoke to them, I was terrified, now they have started ringing again. I tried writing to complain but it made no difference, by the way, anyone, I have a friend who is being rang at work continually, is this allowed?