Won FOS Complaint but Barclays not complying

[BankFodder]

No don't mention anything else for the moment. Just see what they have to say about CIFAS

[Dazza75]

Quote

 

Dear Mr XXXXX,

 

Thank you for your email.

 

We have received confirmation from our client that the £150 has not yet been paid, despite the FOS decision confirming that such payment had already been made. Therefore, the Bank is prepared to pay you £150 in conjunction with the settlement sum of £49.44, totalling £199.44.  We should be grateful if you could confirm the details of the account you wish to receive the funds and we shall arrange payment at the earliest opportunity.

 

In the meantime we confirm that the outstanding balance on your account has been cleared and we are corresponding with the Bank’s credit marker team to amend your record to reflect the FOS decision. We will let you know once this has been actioned.

 

In the meantime we look forward to receiving your account details.

 

XXXXX

 

 

Looks like they have actually noticed that no one bothered to pay the £150 offered in April 2019.

Also no direct comment about the CIFAS, not sure if amending my record to reflect the FOS decision would include the CIFAS as there is no mention of it in the FOS decision, because we didn't know about it during the FOS complaint.

 

Are they intent on keeping the CIFAS marker registered against me, even though they are admitting it was all their fault for the mishandling of my charge back?

 

Still no Sar request info back from the bank or FOS. the 14 days would be up tomorrow but officially don't they have upto 4 weeks?

[BankFodder]

They have 30 days to respond to a subject access request. When they did you make it?

Secondly, I think in view of the way they have handled this, you should be sticking out for extra compensation.

Do you mean then they have four weeks before you have to issue an action? – No not at all – but on the other hand maybe we should just a handful little while longer to see what happens.

I'll have to try and read over this thread on the weekend and get myself back in the loop. It's far too long.

Also I'll try and put a letter together which you can send to them.

Incidentally why are you hiding their signature. You should disclose all of their identities so that everybody is very clear as to which shower you are dealing with and who is working for them. They are clearly stupid enough to accept their instructions from their clients at face value instead of doing proper investigation. It shows a shabby approach

[Dazza75]

14 hours ago, BankFodder said:

They have 30 days to respond to a subject access request. What they did you make it?

 

28th Febuary. So 2 weeks ago. 

 

I don't mind waiting a few days. I don't think they are referring to removing the CIFAS because it isn't being mentioned specifically. Seems a little odd. I also feel they should pay for that. It really isn't about the money, but banks should not get away with doing this.

 

Signature.. I got a 'kind regards' this time, not had one of those before!!

Kind Regards,

 

Danielle Russell

Legal Assistant
for TLT LLP

Edited March 14, 2020 by BankFodder
Danielle Russell used to work in customer services and the fashion trade for a few years from about 2012

[BankFodder]

First of all – apologies to anyone who might feel a bit incensed about this. I've gone through the thread and I have taken out anything that I felt didn't particularly add to the story and in fact I managed to get rid of 91 posts and reduce the thread from eight pages to four pages. I wouldn't normally do this but it seems to me that some of the issues here are so important that it was worth condensing it and making it easier to read.

Once again, it's been going on long enough for I've lost the plot and so I just want to go over what's happened:

You made a chargeback against your bank – which they handled incorrectly and they have admitted that they didn't attach evidence at the correct time and this is why your chargeback was rejected.

• However, they had already put a credit into your account and you had started to spend against it but on the rejection of the chargeback, they took the money back and plunged you into debt.
• Your account apparently contained about £49 at the time that the account was closed and you didn't have any access to this.
• You disputed this with Barclays and the matter was then escalated to the ombudsman service.
• By coincidence and exactly the same time Barclays closed your account and also registered a CIFAS marker against you. (Could you just clarify why they did any of this please)
• according to their records the CIFAS marker was placed because of multiple fraudulent transactions. (Would I be correct in simply saying that you were spending the 790 odd pounds that had been returned to you under the chargeback?)
• You then referred the matter to the ombudsman and the adjudicator found in your favour and recommended an award of £150 plus your money back. However no comment has been made in respect of the CIFAS marker.
• The money wasn't paid to you.
• Barclays said that they had paid it to you. – Now they agree that it wasn't paid but they are blaming the ombudsman.
• Now Danielle Russell has written to you in kinder terms – blaming the ombudsman and and saying that Barclays "are prepared" to pay the £150 plus your money back and they want to know some account details to paid into.
• There is some vague undertaking to have your record amended – but nobody is clear as to what that might be or whether it will actually happen.

Could you address these points please and correct anything I have wrong.

[Dazza75]

28 minutes ago, BankFodder said:

By coincidence and exactly the same time Barclays closed your account and also registered a CIFAS marker against you. (Could you just clarify why they did any of this please)

 

When I spoke to them on the phone in March 2019, they told me I had to pay them the money back immediately. I told them I will not be doing this and will be making a complaint to the FOS. I then had dealings in April with someone called Tori (Barclays) who wanted to investigate further. She did investigate all of my evidence, but never bothered to get back to me. The FOS does have evidence that at this time, they did believe I had a case, but not against them. I will receive this evidence when the SAR bundle comes from the FOS.

 

Received a letter dated 30th April advising of termination of my banking services. After this I heard nothing from them. The default and Cifas was then issued 30th May 2019.

 

38 minutes ago, BankFodder said:

according to their records the CIFAS marker was placed because of multiple fraudulent transactions. (Would I be correct in simply saying that you were spending the 790 odd pounds that had been returned to you under the chargeback?)

 

I don't know. I guess it must be. They are saying the charge back was fraudulent and that I should not have made the claim with them. So, is it because I spent the money, or is it because they believed I had no grounds to make a charge back? It is unclear.

 

47 minutes ago, BankFodder said:

You then referred the matter to the ombudsman and the adjudicator found in your favour and recommended an award of £150 plus your money back. However no comment has been made in respect of the CIFAS marker.

 

The adjudicator did not mention compensation himself. He stated that Barclays bank had already made an offer of £150 and he felt that was fair. However this offer was made in March 2019 by telephone, for the error of not attaching evidence to my case, and I rejected it. Hardeep at the FOS was not aware of the CIFAS at this time. I did tell him I thought Barclays may have issued one and he told me they would not have done this.

 

 

 

 

[BankFodder]

Are you sure that there is a CIFAS marker? Have you got evidence that the FOS believed that the £150 had already been paid?

Please will you take a look at the provisional draft letter below. Check that it is correct. Also check it for typos – I use dictation software and there's all sorts of errors that creep in because I may not articulate correctly or because I don't proofread adequately.

 

Also check that these are the things that you want to say – if there is anything that you would like to add or if there is anything that you would like to take away.

 

Quote

Dear Danielle

 

Thank you for your letter of the X X X

 

Although you haven’t specifically admitted it, that its contents effectively admit that the bank is in error and has been from the very outset.

As you know full well this has been my position from the start.

 

The bank offered me £150 compensation – but that was in April 2019. It was never paid. Furthermore I have had no access to my own funds – about £49 blocked since then. We have moved on considerably and although the FOS adjudicator has indicated that he thought that £150 was fair, your clients have since increased the difficulty and have not remedied the matter and so we are going to have to revisit the entire question of compensation.

It seems to me to be quite disingenuous that you have relied on the FOS statement that the £150 had already been paid. I have attempted to tell the FOS and you and your clients that it was never paid and I really fail to understand why your clients didn't simply consult their own files as clearly they must now have done and they have discovered that once again they were mistaken – and presumably it is your own clients who told the ombudsman that the money had been paid – so they have misled themselves, the ombudsman – and initially you yourselves.
Of course it is additionally galling that the FOS chose to believe Barclays bank over the word of myself, the complainant.  What has actually happened is that the bank have given the incorrect information to the FOS and then the FOS is simply repeated it back to Barclays and Barclays have taken it as gospel
Are your own clients really in such chaos that they mislead the ombudsman and then rely on the ombudsman's good faith belief that the money has been paid when in fact it is your clients who have caused the problem for everyone. It's all rather self-serving – Bravo.

However in the meantime, I’m certainly prepared to accept the £150 compensation plus also my own money which you have unfairly been withholding from me and this should be paid into my existing Barclays account which has been unfairly closed and the reopening of which will be a condition of any ending of this dispute. Your client already has the details of this account on their file – unless they have managed to lose those along with the other errors that they have committed.

Also I should point out now that in your letter you have used the word “settlement”. I will not agree that there has been any settlement of the issues and the £150 which I am accepting is simply a payment on account and as I have said, we will have to revisit the issue and explore a more realistic sum.
In addition to reopening the account and placing the funds there, I require an up-to-date bank statement so that I can now start to take control and manage my affairs.
 

You should bear in mind that your client has breached their contractual duty to me to run my account correctly which by their own admission they have not.

Your client also has a statutory duty to treat me fairly and it is clear from all circumstances that they have not done so. In particular, it is clear that the closure of my account was a retaliatory measure and as Barclays has now agreed to repay the chargeback money which they unfairly removed from my account, it is clear that all the other actions which they took against me were caused as a result of a mishandling of paperwork and their peremptory procedural actions against me which they are now attempting to undo. This is clearly a breach of FCA regulations. A serious statutory beach.

Additionally, are you aware that I have served a subject access request on your client and that they also in breach of their statutory duty in that respect as well. They have breached the time limit and the disclosure that they did eventually make was incomplete.

As you are apparently a data controller for your client, it seems to me that you have a direct responsibility to investigate this and to remedy the situation as quickly as possible.

You had better know that much of the missing material seem to involve correspondence around the subject of my complaint and your client’s communications with the ombudsman. My feeling is that Barclays is trying to hide their responsibility in this matter.

If I’m right then this would be a serious matter because not only would it be a statutory breach of data protection regulations, but would also be a further statutory breach of their duty to treat me fairly.

Finally – for the moment – there is the matter of my credit file and the CIFAS marker. I see that in your letter you have made some vague reference to the “Bank’s credit marker team” with a view to amending the record – but I think that I’m entitled to a full explanation of what is being proposed.

If you will not disclose this information to me then this is a further example of unfair treatment and a further statutory breach. You may not be aware that the bank has a statutory duty to communicate with me fairly – and they are not doing so.

As a side issue, it appears that your clients reported to CIFAS that I was perpetrating a fraud. It seems to me that you had a clear public duty to inform the police. Did you do so? What is the crime reference number please.

You can be sure that when all of this is sorted out that I shall also be making a complaint and sending a copy of any judgements to CIFAS so they can see how their subscriber has abused the system and continues to abuse it as part of a general cover-up.

I’m delaying the issue of proceedings the moment until I understand how far we can get with that this dialogue. But you should bear in mind that in every aspect of this dispute I am in the right and your clients are in the wrong – and the sooner they admit it the better it will be for all of us.

Please respond to this letter point by point and in the meantime I would suggest that the best advice you could give your clients would be to practice damage limitation by coming clean and addressing all the wrongs they have done to me and to attempt to rebuild some kind of relationship of trust.

I realise that as their legal representative you feel that your clients’ best interests are served by shielding them as much as possible that you would be quite wrong. Now is the time for a more modern and more honest and more decent approach.

 

Yours sincerely

 

 

 

 

I'm trying to reduce the issues by resolving as much of this is possible by means of dialogue and then afterwards we can see what is left and decide what legal action to take. If we can reduce the issues that become subject to litigation then this will be a very good thing for you.

[Dazza75]

23 minutes ago, BankFodder said:

Are you sure that there is a CIFAS marker? Have you got evidence that the FOS believed that the £150 had already been paid?

 

I did a SAR request to CIFAS and have the proof here. Issued by Barclays Bank 30th May 2019 1st Party Fraud.

 

This is part of the letter Hardeep sent to Barclays Bank in November 2019 regarding his findings/decision. They told him they had already paid it to me. I told him they hadn't many times but he insisted they had.

 

'

Quote

'To put things right, I think Barclays should pay Mr xxxxx £788.73, which is what I think he would’ve received back. Barclays should also refund any charges applied to Mr xxxxx account due to going into an unauthorized overdraft. And if applicable, his credit file needs to be amended to reflect this. In terms of the £150 compensation already paid for the mistakes made by Barclays - I think this was reasonable and I won’t be asking Barclays to increase this''

 

I am happy with your letter, it covers everything and leaves no doubt as to what our stance is at the minute, so thank you for that  

[BankFodder]

A few more edits

[Dazza75]

Quote

 

Dear Mr XXXXX,

 

We are taking instructions from our client in respect of your emails dated 13 and 15 March 2020 and shall provide you with a response shortly. However, I would take this opportunity to confirm that where you have accepted the FOS determination, you will be unable to issue proceedings to recover further damages.

 

In the meantime, can you please confirm the date that you made a subject access request to our client, and provide a copy to enable us to make enquiries?

 

Kind Regards,

 

Danielle Russell

Legal Assistant
for TLT LLP

 

 

I accepted the FOS determination in November 2019 and was told all FOS directions would be actioned within 4 weeks of the date of the decision. The 4 weeks period are FOS rules. At this time I knew nothing of the CIFAS either. They had until 29th December to do this. Hardeep from the FOS emailed this to confirm - 

 

Quote

 

4th December 2019.

Dear Mr xxxxx

 

Thank you for your email. That’s fine, I’ve forwarded the bank details on to Barclays. They are aware of the credit file and are working on amending it. Once done, they should be in contact to let you know – but it can take a few weeks for it to update.

 

Kind regards

 

Hardeep 

 

 

 

Quote

 

16th December 2019

Dear Mr xxxxx

 

Thank you for your email.

 

We allow a business up to four weeks to settle agreed compensation. So if you haven’t heard anything by 29 December 2019, please get in touch.

 

Please note I will be on annual leave during this time, and back in the office on 13 January 2020.

 

Best regards

 

Hardeep

 

 

 

[fkofilee]

No -You can take legal action at any point. If it gets to an Ombudsman - IT becomes legally binding - But if the company fail to resolve the issue and put right in the Ombudsman Decision, you can take them to court to ensure full enforcement on the issue. 

Hardeep is an Adjudicator right? Then accepting his offer does not stop you from taking legal action... **ALSO** - As further items have come to light - It means that further issues have to be resolved that were not part of the original complaint so unfortunately Danielle - You are wrong...

[Dazza75]

Surely, by not completing their side of the deal within the 4 week period it makes it null and void?

 

Hardeep confirms he sent the bank details for the money they held of mine, but they said he didn't provide them.

[fkofilee]

Well it currently an opinion that they didnt put this in place for you at Barclays.

But they also issued a CIFAS Cat 6 MArker which is over and above what the FOS ruled on at the time and also needs to be dealt with. 

 

Due to the nature of the damage inclined - Its Black and White in my view. Barclays screwed up with the CIFAS Marker, it wasnt part of the original complaint because you found out after. 

That in turn means that the complaint needs to be readdressed from the CIFAS aspect and due to the response of the FOS - ITs clear you now have no other option but to take Legal Action against them.

[Dazza75]

What Danielle is saying is - Because I accepted the FOS adjudicators decision back in November, I can not ask for more than £150 in compensation, because I agreed to accept that amount.

 

Acceptance was on the basis that it is now finally sorted out, credit file amended and life carries on as before.

 

This didn't happen. They have come up with no answer as to why they did not follow the FOS instructions in November and why they did not complete any of the actions they agreed to do.

 

So effectively, they didn't complete their side of the deal, but are saying thats ok for them to do that, so they can change their mind about following the FOS diections,  but I can't change my mind when it comes to compensation. Surely that cannot happen.

 

Also, as you say there is now the CIFAS marker, that seems to be nothing to them either, when in fact it makes life extremely difficult to not have a bank account.

 

Another thing, when I contacted Hardeep at the FOS, End of January some time, I told him I now reject their offer as they had not completed their part of the agreement, and said I wanted it escalated.

 

They really aren't taking any of this seriously.

[Dazza75]

I sent this email to Hardeep on the 8th February.

 

Quote

 

Hi Hardeep.

 

I have taken some advice and have been advised I need to do the following before taking formal action.

 

Could I have this case escalated to an ombudsman for a final decision, taking into account the fact that Barclays have issued a CIFAS against me for 1st party fraud.

 

I have the proof of the CIFAS issued by Barclays.

 

They have agreed that they are at fault in this situation, and yet almost 3 months later, have still left the default account on my credit file and the CIFAS marker against my name, meaning I still have been unable to open up a new bank account.

 

Regarding the compensation matter. I would have been happy to accept the £150 initially offered, if all of this had been sorted when they agreed to do this, and before I knew of the CIFAS registered by them, but as they initially agreed with you and offered the compensation, and then went on to ignore your findings, and refused to honor there part of the contract, I would like this looked at again. They have caused me a lot of issues over the past 9 months, they admitted liability, and still refused to make things right, and a big bank should not be allowed to destroy someones credit rating and get away with it, and they have for too long. That CIFAS marker was registered in May 2019, they registered it due to their own failings, and the only person that has suffered is me, and they are still getting away with this behaviour as of today, and that isn't ok.

 

Kind regards.

 

 

[fkofilee]

Yes but the stakes have risen with the CIFAS Marker and it wasnt part of the original complaint so that needs to be dealt with,

[BankFodder]

I think you have to remember that Danielle is working for her clients and she has their interests first and foremost – regardless of the morality or the fairness of the situation.

I understand that she is a trainee solicitor – when she becomes a solicitor then in principle she becomes an officer of the court. However I haven't noticed that many solicitors basically reform their attitudes when they do become officers of the court.

I think two issues are being correctly identified here:

I'm not aware that this was an adjudication by an ombudsman. I had the impression that this was a recommendation by the adjudicator. As such I'm not sure it comes within the normal rules of being binding.
In any event it is clear that the terms of the settlement were that the money was paid by a certain amount of time – and that hasn't happened so I would say that any agreement between you was vitiated.

Give us a while and we'll sort out response

[fkofilee]

Hi Bankfodder - I believe that this was an Adjudicator that made the offer for the OP and not an Ombudsman. 

[BankFodder]

 

Quote

 

Dear Danielle

 

Thank you for your message of X X X date

 

I realise that you are acting for your clients and in principle you have to defend them – but also I would remind you that under FCA regulations your clients are required to communicate with me fairly and that statutory duty cascades to you as well.

 

Firstly, this is not a determination by an ombudsman. It was effectively a recommendation by an adjudicator and my understanding is that this would not necessarily be enforceable in court. Maybe you would confirm this as I’m sure you will know better than me.

 

Secondly, it is clear that the recommendation made by the FOS adjudicator was that the matter be settled and the payment made by a certain date. Your clients did not do this. The reason that they did not do this is because they are in a state of chaos and they mismanage their own records as well as my account.

By not complying with the agreement – even if it was capable of being binding – they have vitiated the agreement and so we can say that it is at large.

I’m sure you must realise this and so I consider that it is unfair communication to try and persuade me otherwise. You should remember that these documents are likely to be shown to court. I’ve already said to you that I will not accept any without prejudice communication. Everything is available to be shown to court.

In any event, the agreement to accept a certain amount of money represented the state of affairs and certain date November. Because of their mismanagement of their own files – and in fact there is inaccurate data processing – they have managed to extend and prolong the issue including adding to my distress. So in any event, there are further issues to be dealt with here and the matter has to be revisited as I have already said to you.

 

Once again I don’t think that you are in a position to disagree with this and if you did then I think that you would be effectively trying to use your professional status to mislead me. Don’t do it. It will all be brought before the court and I have no doubt that the court will agree with me.

 

You are asking me to remind your clients of the date I made the subject access request and to provide you with a copy. Are you saying that your well resourced professional clients have lost sight of the subject access request? Can you confirm this please – because there should be no need to give me any further indications. A valid subject access request was made and they are in breach. We can raise the matter before the court.

Because they are in breach – you won’t be able to remedy the breach – but you may be able to mitigate the harm if you get a move on.

I notice that you have avoided answering my question as to the "Credit Market Team". I think I'm entitled to know what your clients are doing with my personal data.

I notice also that you have avoided answering my question about the CIFAS marker. As I'm sure you must be aware, this is one of the most serious and principal sources of damage caused to me by your clients unfair treatment and by their inaccurate processing of my personal data. I think anyone would be damaged in the same way and is absolutely foreseeable.

Finally, I hadn't included this in my SAR – but I'm now formally asking you to let me know with whom has my personal data been shared. Please will you confirm that you have received this request, that you have understood it and the timescale for implementing it.

 

Please address the questions that I have put to you. Also I will ask you to bear in mind that you hold yourself out as a professional and you know you are dealing with a litigant in person. This means to an extent I'm relying on what you say as being accurate. You may not like it but you hold a duty to me as well. You will have to decide whether your professional ethical duty is subordinate to your contractual duty to your client. Maybe you can let me know on this point. Frankly I think that as your clients are obliged to communicate with me fairly – I think you also obliged to communicate with me fairly and I think that means that you have to be straight dealing.

 

Yours sincerely

 

Please check it to see that you agree with it – that it is correct – doesn't contain any typos – that you don't want to take anything out or if you want to put anything in then let me know.

Also, this is highly likely to end up in court – I hope you are prepared to step up to the mark because you will be in court on your own – you will have our support but I'm quite sure that Barclays will send a lawyer along and you may even meet Danielle - but probably somebody a bit more ferocious.

However, I take the view that you are effectively being bullied by the bank which really wants nothing better than to batten down the hatches and for you to go away.

[fkofilee]

BF does the above take into the account by CIFAS?

I dont think that Danielle understands the concept of it and is brushing it off. IT needs to be addressed. It is the most damaging thing of the whole lot.

[BankFodder]

CIFAS added in red

[BankFodder]

5 minutes ago, fkofilee said:

BF does the above take into the account by CIFAS?

I dont think that Danielle understands the concept of it and is brushing it off. IT needs to be addressed. It is the most damaging thing of the whole lot.

 

I would say that she has a duty to be aware of it and to understand its significance.

[fkofilee]

5 minutes ago, BankFodder said:

 

I would say that she has a duty to be aware of it and to understand its significance.

 

Correct but you dont find out about it until youve been hit and even then - Well they operate under a veil of Secrecy.

It doesnt get shown on your CRA unless Cat 0 or 2. 

 

Either way - Imagine if you had all your money stolen due to overseas fraud - You raise a Chargeback / Fraud Case - You get the money back to pay Rent / Bills / Food... But then they take it back incorrectly. 

Would you get a CIFAS marker fo that ? Im guessing so - But this is the world we live in. Its crap...

[Dazza75]

1 hour ago, BankFodder said:

CIFAS added in red

 

I cannot see any Cifas info in red?

 

I am happy to go to court, to be honest they are taking notice of nothing so far are they, they obviously think its a game. Should I just go ahead and get a solicitor? It may be costly but they are taking the micky and its really getting on my nerves now, I have no patience for them.

 

They are telling me that they are able to change their minds, but I cannot. That isn't how it works. I cannot be held to that agreement by the FOS, because they didn't hold themselves to it.

[BankFodder]

You're right – for some reason rather it didn't save down. It's there now.

No I really wouldn't bother to do court yet. As I've already said, let's see what they come back with. You got them paying attention now. I certainly wouldn't start instructing solicitor. You really would need a solicitor who understands a bit about these banking regulations and data protection regulations and you have difficulty finding one on the high street. It will cost you an awful lot money to instruct a solicitor and they will just get involved in some protracted negotiation, arrive at some negotiated settlement and then charge you much more than you will ever gain out of it.

It's up to you of course but you seem to have their attention now and so I recommend that you stick with this for the moment.

 

Also, with the virus issue at the moment – you have no idea what is going to happen and I can fully expect that people will either go or sick or the courts may even close and that means that there will be a huge backlog - when they eventually resume. Don't forget that civil matters will not be a priority.

The moment you issue a court claim, they will probably stop talking to you on the pretext that it is now a matter for the courts. Of course they could keep on talking to you but I think that they will exploit any possibility to delay matters and it could go on for many months – and even a year or more. Your best interests are in getting a solution – getting your money, getting your account reopened because if it is reopened that means that the CIFAS markers removed. If we can get you back roughly to square one – then you can start thinking about issuing claims for statutory breach and we will be absolutely delighted to help you.