Monument PBP refund - want to offset to a DCA & debt is SB'd too! (scotland) help please!

[dx100uk]

then let things run

[delilahsahb]

Was my email back to the adjudicator ok for the Ombudsman?

I pinched bits of what DX and Slick had said previously.

Just got to wait now on the Ombudsman and hope it goes my way

Still dont understand what difference there is between PBP and PPI either

[dx100uk]

the bottom line is there is no real diff.

 

payment break plan - means they allow you a break in payment [ I think for a max of 12mts]

and use that money to pay the minimum sum required on that statement.

 

PPI ...erm..does the same.. pays the min sum for 12mts.

 

sadly they are being pedantic

PBP has been refunded 10'000's of times

both with and without the FOS involvement.

 

It would have been better to of gotten your reply checked first.

 

the only thing you needed to address was the statute barring

 

not the offset

[delilahsahb]

Didnt say anything in his email about getting the reply checked first.

 

 

All it said was i could ask him to look at it again if i had more info on it to send in to support my claim,

which i dont (dont know what more he could want anyway,

then It said i could appeal to an ombudsman but he thinks its likely the Ombudsman will agree with his decision.

So i went straight for the Ombudsman as im getting nowhere with the adjudicator.

 

I appear to have the adjudicator thats not interested in anything other than to agree with Monument

[dx100uk]

I meant get it checked by us...............

[delilahsahb]

Sorry DX

[slick132]

I think your reply to the Adjudicator is fine.

 

[delilahsahb]

Reply back from the adjudicator this morning

 

Thank you for your email. I’ve noted your comments and attached it to your file.

 

As requested, I’ll now refer your complaint to an ombudsman. A decision should be provided within the next 6 weeks, but please bear in mind the Christmas holidays, so it may take slightly longer

[delilahsahb]

Hi Guys.

Im really confused about this.

I received a letter from the Ombudsman dated the 30th Dec

saying my complaint has now been passed onto them and they would be in contact within 6 months.

 

 

I have today received an email from the adjudicator as follows:_

As you’re aware, your complaint was referred to an ombudsman to consider.

Having spoken to an ombudsman and senior colleague about the concerns you had which was highlighted in your email dated 18 December 2015,

we’ve come to the conclusion that the Payment Break Plan (PBP) hasn’t been mis-sold.

 

I agree that if the PBP was mis-sold then the refund should be made to you directly.

But the reason you provided for the PBP being mis-sold was because you were unemployed and a carer for your youngest son.

Having read the terms and conditions for the PBP, it looks like you still could have benefited from the PBP even though you were unemployed.

 

 

For that reason I’m satisfied that the PBP wasn’t mis-sold.

 

In regards to the debt being statute barred, as advised by an ombudsman, this isn’t something we take into consideration I’m afraid.

So you may wish to seek independent legal advice on this matter.

 

If you’re happy with my above findings then I can close your complaint.

But if you would like an ombudsman to provide their opinion in the form of a final decision then please let me know.

 

I would be grateful for your response no later than 18 January 2016

 

I replied that i didnt understand where they are coming from that PBP was not mis-sold

as Monument have already agreed that it was and have paid out to a third party, which you now agree was wrong.

 

 

In addition to me being unemployed, i was unaware that this had been added to the account

as it was not something i had ever agreed to and something that would never have benefitted me.

Please explain how you think this was not mis-sold??

 

He has replied with:-

Thank you for your emails.

 

Monument’s refund was made as a goodwill gesture, not because they accepted that the PBP was mis-sold.

If for example they admitted that it was mis-sold then I would agree that the refund should be paid to you directly.

But as I can’t find any reason that it was mis-sold, I can’t recommend that they should have paid you the funds directly.

 

I appreciate your concerns have attached your emails on your file for the ombudsman to consider.

I’ll now refer your complaint to an ombudsman as requested.

 

I dont understand why i have a response back from the adjudicator when the file was supposed to already be passed to an Ombudsman

and how do they come to the conclusion that this was not mis-sold.

9/10 they will surely state as a "goodwill gesture".

 

 

So it looks to me that Monument will win in this case and im not a happy bunny

[dx100uk]

all PPI refunds are goodwill gestures.

 

 

as you say you didn't know you had PBP and would have used it if you had know

so you being unemployed is immaterial??

 

 

dx

[delilahsahb]

Thanks DX and thanks everybody that gave me help with this. It doesnt look good for me but nothing ventured nothing gained as they say.

There is still a slight chance but im not hopeful.

I will let you all know the final decision when i get it

[delilahsahb]

I have emailed back again saying that it was a postal application originally and i at no point ticked the box for PBP and that the initial postal application was followed up by a phone call from Monument and i at no point agreed to or signed or ticked anything to do with PBP as it wouldnt have benefitted me at that time. (I do actually remember the phone call and the woman asking about PBP but havent said that to Ombudsman). I said that Monument should be able to provide them with the original application form/credit agreement showing this. I also said as an afterthought that i was under the impression that all PBP/PPI claims issued were as a "gesture of goodwill".

 

Thats it folks i cant do anymore than that.

[dx100uk]

that's great!!

 

 

dx

[delilahsahb]

Another email from the adjudicator (he is getting on my nerves lol)

 

I appreciate that you feel you’ve been mis-sold PBP. According to Monument’s notes, this was raised as an issue in September 2015.

 

PBP isn’t set out in the application form. It’s usually offered in the sales call when activating the account. PBP is generally set up after a customer agrees to have it. Monument’s responsibility is only to make sure the customer has enough information to make an informed decision. It’s not responsible for advising customer’s on the suitability of the product. Unfortunately the call recording isn’t available so we have to make a decision based on the information available.

 

In October 2015, Monument sent its final response offering a refund. This was made as a goodwill gesture, which means Monument didn’t accept liability that it was mis-sold. Not all PPI/PBP payment are made as a goodwill gesture. Banks have a responsibility to follow correct procedures if PPI/PBP has proven to be mis-sold.

 

Having reviewed your file I can see that the main reason you felt that the PBP was mis-sold was because you were unemployed and caring for your youngest son who has a disability. The terms and conditions consists of two types of rates that are payable for PBP. One for employed/self-employed customers and another for unemployed/retired customers. So although you weren’t employed, you still had the benefit of the PBP. For that reason I don’t feel that you’ve been mis-sold the PBP.

 

But if there was evidence showing that you were mis-sold, then we would use the same approach as PPI, where the refund should be paid directly to the customer. But as there’s no evidence of this, I’m afraid I feel the process used by Monument was correct. As they offered the refund as a goodwill gesture, it was up to them how they were to pay this to you, despite having sold the debt to a third party. So the fact that they used the refund to reduce your outstanding balance wasn’t an error but a way of helping you reduce your debt.

 

The terms and conditions also explained what PBP was, how much it cost, and that it could be cancelled at any time.

I can see that the PBP charges were applied on your account since July 2003. They were clearly outlined in your statements. Since it was showing on your statements every month from 2003 it seems likely you would’ve queried it if you didn’t know what it was, or cancelled it if you didn’t want it. So if you were unhappy with these payments then we would expect you to raise a complaint sooner.

 

conclusion

 

For the reasons explained above, I’m satisfied that the PBP wasn’t mis-sold. The refund would only be paid directly to you if there was evidence that it was mis-sold. As there’s insufficient evidence to suggest this, I’m afraid I can’t conclude that Monument made an error. I appreciate your financial circumstances but feel that the process Monument followed was correct.

 

I hope that my explanation has been helpful in setting out clearly why I have taken my view.

 

If you remain unhappy then I can refer your complaint to an ombudsman. Alternatively I can close your complaint if you’re satisfied with my response.

 

I would be grateful for your response by 19 January 2016

 

This is my response:

Thank you for your response but im afraid i am still unhappy with it and would prefer it to go to an ombudsman.

I am adamant that i never requested PBP and if as you say it was something that would have been added in during a phone call then as i am never interested in insurance of any sort then i feel this must have been pressured and forced onto me at the time without my consent. I look at what i am due to pay on a monthly basis not at a breakdown of charges, it more than likely never occurred to me that this PBP was anything other than interest being added to the account.

You say there is no evidence of their phone call but you say i should have queried this. It seems to me that it is very convienent for Monument not to have kept recorded phone calls but its their word against mine?? Why would a company of any sort offer a "goodwill gesture" if there was any chance that they were not at fault?? And surely something as important as PBP should have been a matter of choice and not forced on someone. Goodwill gesture or not, the fact is Monument said they owed this money to me as the result of a possible miss-selling of PBP and at the end of the day they have paid to a third party without my consent, which i strongly disagree with.

I am happy for this to proceed to an ombudsman

 

I wonder if he can tell im getting mad with him

[delilahsahb]

And another reply from him :-

Thank you for your emails.

 

I appreciate your concerns with the call recording. We generally don’t expect banks to keep call recordings that are more than 6 years old, which is why the call isn’t available, which is why we have to base our opinion on was likely to have happened in the circumstances.

 

In reference to the terms and conditions, that’s something which is usually sent with the Welcome Pack when you receive your credit card. If this wasn’t sent, we would expect the customer to notify the bank.

 

I understand your point of view and will refer your complaint to an ombudsman to consider. You should receive a response within the next 4-6 weeks

 

This is my reply to his

How could i inform Monument of that i didnt receive it if i didnt know i had it?? Was i expected to know by psychic ability?? And wouldnt it have been from an insurance company acting for Monument and not Monument themselves therefore separate as it was with other credit cards i had with different companies?? Are you saying that Monument were the PBP suppliers or was it a company acting on their behalf? If it was a company acting on their behalf it should or would have been sent separately. How convienent for them not to have a recording of the phone call, so there is no proof whether i have been forced or had this added without my consent but it is my fault for not checking and not the companies for mis-selling. I would have said a gesture of goodwill was more out of a guilty complex but that of course is just my opinion

[dx100uk]

The terms and conditions also explained what PBP was, how much it cost, and that it could be cancelled at any time.

I can see that the PBP charges were applied on your account since July 2003. They were clearly outlined in your statements. Since it was showing on your statements every month from 2003 it seems likely you would’ve queried it if you didn’t know what it was, or cancelled it if you didn’t want it. So if you were unhappy with these payments then we would expect you to raise a complaint sooner.

 

 

but until recently you wee not aware you could reclaim it.

 

 

dx

[delilahsahb]

Thank you DX,

I have sent him that now too.

Poor guy will be sick of me soon eh??

[delilahsahb]

I have done some research online and found Monuments T&C's from 2003 so i copied it and sent it by email to FOS.

Now i also found Monuments PBP T&C's so i have sent the following to the FOS 10 minutes ago by email.

 

I found terms and conditions that i received with the credit card.

There is no mention of PBP on it and i have attached them for your perusal.

 

Now i also did some research online regarding Monument PBP and what i should have received from them,

this is taken from a consumer internet site and are the T&C's that i should have received for this PBP with further details of the PBP at the bottom of the email.

 

you may elect to enrol on the Plan if you are a UK resident who is either employed,

self employed, retired or permanently disabled and not in breach of the terms of the account.

 

 

The Payment Break Plan is an optional feature of your account

and can be activated if you were to lose at least 25% of your annual household income due to

a natural disaster, involuntary unemployment, illness and other related reasons.

 

 

You can request to activate the plan and your account could be frozen for a period of up to 30 months if the situation remains unchanged.

 

 

During this time we have confirmed that you would not need to make payments to your account and no charges would accrue

 

Apparently its signed up for in initial phone call and they never have the recording.

 

"who is either employed, self employed, retired or permanently disabled and not in breach of the terms of the account"

 

^^^^There is no mention of being unemployed so why would they enrol me in the plan??

 

"The Payment Break Plan is an optional feature of your account and can be activated if you were to lose at least 25%

of your annual household income due to a natural disaster, involuntary unemployment, illness and other related reasons.

You can request to activate the plan and your account could be frozen for a period of up to 30 months if the situation remains unchanged"

 

^^^^ This would not have applied to me as i was already unemployed so would NOT have benefitted me in any way whatsoever.

I WOULD NOT HAVE BEEN ABLE TO CLAIM AS I WAS ALREADY UNEMPLOYED

AND WAS THEREFORE SOLD A PRODUCT THAT WAS OF NO USE TO ME WHATSOEVER AND WITHOUT MY CONSENT.

 

Just to re-iterate my position at the time.

I was unemployed and on Incapacity Benefit and i was a stay at home mother looking after my son who was on disability benefit.

© you or your partner take leave from work to care for members of your family

who are either, incapacitated and/or your child(ren) and you suffer a loss of at least 25% of Income;

 

So this PBP would not have benefitted me as i couldnt lose 25% of an income i wasnt getting.

 

15. OPTIONAL PAYMENT BREAK PLAN - part of terms & conditions

 

15.1 The Payment Break Plan (the 'Plan,') is optional and is not insurance.

You may elect to enrol in the Plan if you are a UK resident who is either employed, self-employed, retired or permanently disabled and not in breach of the terms of the account.

15.2 You may enrol in the Plan at any time after your account has been opened by either calling or by writing to Customer Services at the address detailed on your statement.

15.3 The monthly cost of the Plan (unless you are retired or permanently disabled) is 0.89% of your account balance as shown on your statement, up to a maximum balance of £2,300 (the 'Plan Charge').

If you are retired or permanently disabled, the Plan Charge will be 0.59% of your account balance.

15.4 Once you have enrolled, you can then activate the Plan if one or more of the activation events set out below occurs and you telephone us on the number detailed on your statement (Activate' and/or 'Activation' as appropriate). The activation events (the 'Events') are:

(a) you or your partner (Partner means any person who is either your spouse or domestic partner [Common Law wife/husband or same-sex partner]) become unemployed involuntarily (excluding as a result of your own wilful misconduct) and suffer a loss of at least 25% of your net monthly household income (‘income’}

(b) you or .your partner become sick, disabled or have an accident and suffer a loss of at least 25% of Income,-

© you or your partner take leave from work to care for members of your family who are either, incapacitated and/or your child(ren) and you suffer a loss of at least 25% of Income;'

(d) you or your partner are employed in the armed forces and are unforseeably posted abroad on emergency duty;

(e)- you or your partner become hospitalised due to a medical condition; . (f) you or your partner are on Jury Service,-

(g) your main residence is significantly damaged by some natural disaster, for example, a fire, flood, high winds, lightening, landslide etc; (h) your partner dies. ' •15.5 If you wish to Activate, you must do so within six months of an Event first occurring.

15.6 If you Activate, you must provide us with reasonable evidence of the Event within two months of Activation (for example, a relevant doctor's certificate, surveyor's report etc). If the Event continues for some time you must provide us with such further evidence of the Event and its ongoing nature as we may from time to time request.

15.7 Activation will be considered by us to continue for as long as the circumstances of the Event continue (for example, as long as your main residence is significantly damaged as a result of flooding or as long as you are hospitalised) up to a maximum of 30 months ('the Activation Period').

15.8 During the Activation Period, your account will be frozen and you will not:

(a) be able to use your account other than to make voluntary payments to it;

(b) have to make any minimum monthly payments other than payments to clear any outstanding arrears;

© incur any interest, charges. Plan Charges or fees.

15.9 Activation will end when any of the following occurs:

(a) the Activation Period expires;

(b) you fail to provide reasonable evidence that the Event occurred and/or is continuing.

15.10 At the end of the Activation Period, the full credit limit on your account will be reinstated (where applicable) and your account will resume incurring interest, Plan Charges and any applicable charges and fees that are payable under the terms of your account. You will have to resume making your minimum monthly repayments.

15.11 You can leave the Plan and/or Activation Period at any time by writing to us at Customer Services.

15.12 If you knowingly make any false or misleading statement in relation to your eligibility to enrol or Activate, we may require you to repay in full the interest and/or charges that would have been payable if you had not activated the Plan.

15.13 Any waiver by us of the above terms of the Plan will not constitute a waiver of any of the other terms.

15.14 We may vary the terms of the Plan by giving you at least 30 days' notice before any change takes effect. However, no such variation will affect the terms of any Activation that has already occurred.

[dx100uk]

yep my wifes 2005T&C's say the same

they refused in 2007

 

 

but under their own admission and letter

coughed in 2014 costing them a further £350 in interest

 

 

dx

[delilahsahb]

Letter from Ombudsman this morning. They ruled in Monuments favour

[slick132]

No surprises there as the FOS often rule in favour of the banks.

 

What did the ruling say (just the relevant parts).

 

Then we can consider escalating to an Ombudsman to review the Adjudicator's decision.

 

[delilahsahb]

That is the Ombudsmans decision Slick. I put holes in every aspect of the adjudicators decision but the ombudsman has agreed with him

[slick132]

Sorry Deliah, I didn't read back far enough.

 

Please post up the relevant parts of the Ombudsmans Decision. It may be useful.

 

Have you asked the Ombudsman "On what law or authority or legal precedent do you rely to allow the bank to Set Off a refund, payable to me, to a third party debt purchaser with whom I have no contract."

 

[delilahsahb]

Yep, i put everything in it. It was worth a shot but it wasnt my day

 

I will post up tomorrow Slick for everyone