Fos Say M&S can't be investigated - They are going for underwriter but taken 2.5 years

[Cumbria]

I've got a similar issue, whether I should sue or not as I've never done this .. FOS letter states: ".. because your PPI was sold to you before 2005 we are not in a position to say whether or not the seller (M&S) acted against any rules. Instead we are investigating whether the business underwriting your PPI (Allianz) - which signed a code of conduct at the time, can be held legally responsible for how the businesses selling its insurance polices acted" .....

 

Now this has been going on for 2.5 years with the FOS .... any suggestions please?

[ims21]

Hi

 

In this 2.5 year period, what chasing have you done with fos?

[Cumbria]

I've chased every 3 months .... been told I had 8 weeks to wait before a decision, then told that was wrong .... so keep chasing but frankly they don't seem to be going anywhere with M&S and hence now targetting the insurance underwriters -

[ims21]

Well I suppose you could write to fos expressing your feelings and that you now feel that you have not only been mis-sold a product but also the fos seem to be taking an age to resolve a simple issue.

 

Ask them to detail what the circumstances are that result in them taking so long.

 

It may not make any difference but it may make you feel better.

[Cumbria]

I think they've already answered your kind suggestion in that they are not playing ball over the code of conduct they signed.... which leaves me either to carry on with the FOS or as originally requested, of caggars .. how do I go about suing? thanks a bundle for your support.

[ims21]

Ok of you wish to sue over this then you need to bear in mind that the onus of proof (civil burden on the balance of probability) will be on you as the claimant.

 

You would need to prepare a comprehensive schedule showing how much you are claiming including the interest on the PPI that you want to claim back.

 

You then send a preliminary letter to the lender requiring a refund. If they refuse you would then send a "Letter Before Action" and of they still don't pay then you issue the claim through court.

 

So first off, have you got ALL of the statements for this account?

 

What are the reasons you will use for the mis-sale?

[Hortz]

FOS are pulling a fast one IMO. When they say they are "investigating if the underwriter may have any liability" all they will actually do is write to the underwriter saying "we would like you to investigate whether you may have any liability for the way the broker sold the policy" (or words to that effect).

 

Even this is exceeding their brief by a considerable distance - they are supposed to be an independent service to resolve disputes that customers and companies can't resolve between them. They should not be trying to pin complaints that are outside their jurisdiction on companies who weren't directly involved in the matters. However, in practice if the underwriter says "sorry mate we didn't sell it, end of" then there's not much more they can do.

 

I have heard of cases where an underwriter has made an offer of recompense even where they didn't sell the policy, to customers who were blatantly ineligible or had serious pre-existing and chronic conditions. However, I have yet to hear of one where FOS have actually considered themselves to have jurisdiction and actively ruled against an underwriter for a policy someone else has sold. Such a ruling would almost certainly be open to legal challenge in any event (whilst respondent companies generally cannot challenge FOS decisions in court there is an exception where it relates to a point of law).

 

As stated above, the burden of proof in a court case would be on you as the complainant. Plus unlike the FOS you could be held liable for costs if you lose. Whether its worth it depends on your reasons and whether you have any evidence. He said/she said is unlikely to get very far on this one.

[mightymouse_69]

FOS are pulling a fast one IMO. When they say they are "investigating if the underwriter may have any liability" all they will actually do is write to the underwriter saying "we would like you to investigate whether you may have any liability for the way the broker sold the policy" (or words to that effect).

 

Even this is exceeding their brief by a considerable distance - they are supposed to be an independent service to resolve disputes that customers and companies can't resolve between them. They should not be trying to pin complaints that are outside their jurisdiction on companies who weren't directly involved in the matters. However, in practice if the underwriter says "sorry mate we didn't sell it, end of" then there's not much more they can do.

 

I have heard of cases where an underwriter has made an offer of recompense even where they didn't sell the policy, to customers who were blatantly ineligible or had serious pre-existing and chronic conditions. However, I have yet to hear of one where FOS have actually considered themselves to have jurisdiction and actively ruled against an underwriter for a policy someone else has sold. Such a ruling would almost certainly be open to legal challenge in any event (whilst respondent companies generally cannot challenge FOS decisions in court there is an exception where it relates to a point of law).

 

As stated above, the burden of proof in a court case would be on you as the complainant. Plus unlike the FOS you could be held liable for costs if you lose. Whether its worth it depends on your reasons and whether you have any evidence. He said/she said is unlikely to get very far on this one.

 

It is a matter of agency law.

 

As far as I am aware, FOS has enjoyed some success in this - notably with some Alianz/M&S storecards.

[Hortz]

It is a matter of agency law.

 

As far as I am aware, FOS has enjoyed some success in this - notably with some Alianz/M&S storecards.

 

True, if the seller is acting as agent for the insurer (basically a tied rep) then the insurer would potentially be open to liability. However, where they are simply bringing the two together then this is a different ball game. All depends in the contractual arrangements I would guess.

 

I've never seen anything in Ombudsman News about it and since this is such a contentious issue would have thought any kind of decision on it would be published as a case study for guidance to all.

[ims21]

This is a very nebulous area of course.

 

The employees of M&S were probably/possibly on a commission for selling the insurance so it was in their interests to sell as much as they could.

 

M&S passed the business to an insurer bit whether there was an agent/principal relationship is a bit of an unknown. If fos are prepare to enquire of the insurer then one would think that such a link has been identified.

 

However, as I understand it, the insurer would only be required to repay the premiums and 8% simple interest on those premiums and that does not take into account any contractual interest that, in this case M&S may have applied to the card account.

 

So a claimant is left with a bit of a dilemma on that front.

 

For information purposes, S56 of the Consumer Credit Act covers antecedent negotiations and although fos claim to take into account current law, regulations etc. etc. in circumstances such as these it can be difficult to see how the claimant is put back in the position they would have been in had the PPI not been provided in the first place since some of the interest is not being refunded.

[emmtay]

I got my money eventually although it was just the premiums paid plus 8%. Mine took nearly 4 years!

Emmtay