Legal advice URGENTLY needed

itsnever2lateisit?

OK First of all a little preamble as to the history of making claims against Debit/Credit cards. Insurance Co's like to think that they are being 'helpful' by making it easier for you to renew a policy. Thats the spin. The reality is that it was devised as a measure to prevent customers from lapsing. (Moving to another insurer) relying on customer inertia. Much the same as sending your renewal notice out as late as possible to try and prevent you shopping around.

I have had this personally myself when I had previously paid a policy for my OH. In my case I would have paid again anyway, but I am a pricipaled (Sp) sort and didn't like what had happened. Now this was several years ago and Insurers wording has subsequently changed to cover themselves, as per previous post.

In your case Swintons will have to prove that your OH gave permission to use the card again at a future date, either in writing or by reading something to that effect over the phone. Otherwise this is also a matter for the data protection registrar, as she is a) Not the Data subject and b) Swintons have held data longer than is necessary to complete the original transaction.

I would offer Swintons an opportunity to IMMEDIATELY reverse the transaction, pointing out to them that their customer is not the cardholder (Something they already know)

Lloyds are technically correct in saying that the transaction is legitimate, though I do not think they are entering into the moral/spirit of matters. But Swintons have taken monies from and unrelated (not in the familly sense) party, unless they have express authority to so so

PS. In my case it was Frizzells ( now LV) they refunded very promptly, but still lost the business

HTH

geordie_joe

dmg24 wrote: »

The OP formed a relationship when they gave authority to use that card on a previous occasion. What that relationship is would depend on the terms and conditions.

No, just because some company puts something in their terms and conditions it DOES NOT make it legal. Why do you think they have laws against unfair terms and conditions?

dmg24 wrote: »

Your opinion and the law are very different things.

Except when my opinion happens to fall in line with the law.

dmg24 wrote: »

The OP wants to know what his legal rights are.

Well lets see.

A company he has never had goods or services from has taken money from his bank account without his permission, just because they said/think they can.

I'm pretty sure there is a law against taking things that don't belong to you without permission, but I can't think what it is?

Fungas

Right. What a morning.

Firstly, Swinton won't talk to me in detail without authorisation from my brother-in-law due to "the data protection act". Mmm. Thought they broke that when they stored our account details and made an unauthorised request for payment? Anyway, I can't go into detail with them at the moment for that reason, and also the brother-in-law has gone to ground at his girlfriend's house, and has turned his phone off. What Swinton *did* say is that no payment has been requested in lieu of that debt, but couldn't explain why my bank account as a DEB for £800 payable to Swinton Insurance on it.

Information commissioner suggests that it is OK for Swinton to keep a record of the previous payment for other legislative reasons. But, if the original payment was "one payment only", and the terms and conditions of that payment were such, then they were wrong to request an unauthorised payment. However, I've now discovered that my brother-in-law has sat on a letter explaining that "As per the terms and conditions of your Consumer Credit Agreement with us, we shall collect payment of the outstanding balance from the credit/ debit card that you last used to make a payment to Swinton Group Ltd...If this card is not yours, please make the cardholder aware". Tha card wasn't his, but he didn't make us aware.

Lloyds TSB are too busy to answer.

I'm thinking that the clause in the letter to the brother-in-law is a get-out for Swinton to make a payment request; however, those legal terms and conditions are between him and Swinton, and not involving us.

My chances of success are, I think, slipping away. But, has there been any legal precedent whereby somebody has challenged this and succeeded? Surely, under the circumstances, this can be successfuly challenged? I mean, huge corporations like Swinton Insurance aren't allowed to "legally steal" money from non-customers...are they?! :mad:

Somebody PLEASE give me some good news!

Fungas

itsnever2lateisit? wrote: »

In your case Swintons will have to prove that your OH gave permission to use the card again at a future date, either in writing or by reading something to that effect over the phone. Otherwise this is also a matter for the data protection registrar, as she is a) Not the Data subject and b) Swintons have held data longer than is necessary to complete the original transaction.
HTH

Thanks a lot for your helpful post. Is the quote a *legal* opinion? I just ask because I'm nervous at pursuing a legal argument against Swinton's actions if I haven't actually got a legal leg to stand on.

Clive_Woody

Fungas wrote: »

Somebody PLEASE give me some good news!

Give Consumer Direct a call. With all the goodwill in the world a bunch of have a go lawyers on an internet message board will only confuse matters.

http://www.consumerdirect.gov.uk/

Voyager2002

Fungas wrote: »

Right. What a morning.

SNIP

Somebody PLEASE give me some good news!

You've done a lot: don't despair.

Firstly, I'm not sure that detailed legal knowledge would help you. If something like this were to get to court, the insurance company would win by spending a fortune on lawyers and dragging it out.

Have you explored the Ombudsman service? Since you are not the policy-holder you might not be able to make a formal complaint, but a quiet word from them to a Swinton manager might make the world of difference.

Anyway, what I would do now is find a FAX number for Swinton and use it to send them a firm but business-like letter. The essential point is that your card details were given to them to make one, and only one payment, and at the time they did not indicate that they were going to store those details and perhaps use them for another payment. A letter sent to someone else (the policy holder) after the event does not constitute the kind of notice that they are required to give you, the card-holder.

I also suggest that you arrange an overdraft facility with your own bank. My guess is that you will eventually get the money back, but probably not before Christmas.

RabbitMad

I don't understand why you just don't force Lloyds to put the payment into dispute and reverse it. It really is no skin off their nose as card holder not present transactions are charged back to the retailer (in this case swinton).

If I were you this is the course of action I would be following:
1. Write to Lloyds disputing this transaction and asking for a refund and also a refund of any costs you have incured as a result of this £800 being taken from your account. Give them 14 days to resond otherwise state that you will take them to the small claims court.
2. If Lloyds don't refund you take them to court and or complain to the Finacial Ombudsman Service.

Fungas

Sorted!! :j

Lloyds TSB have been worse than useless, with absolutely no support for their customer. Their Debit Card Disputes "service" line (which they diverted to) had a 20 minute queue which, being at work, I can't wait in.

Ultimately, the advice given on here was collectively of great support, and thanks to everyone for their inputs.:T

I rang Swinton's and eventually got my brother-in-law's assent to discuss his account. I made absolutely clear (and noted this in case it was needed in correspondance in future) that the payment my wife made on behalf of my brother back in August was for a one-off payment ONLY; no assumption should have been made on the part of Swinton that they could reuse this card for further payments. Amazingly, the branch manager agreed with me! (duly noted too). She contacted her head office with the info, and they've agreed to refund the payment on account of it being unauthorised (not 'arf).

What she did say was this, and this is an important factor in credit schemes which other's have highlighted: the T&Cs that my brother-in-law signed up to suggested that *any* credit or debit card used for payments to his account could be used in future. Regardless of who the card holder is, Swinton assumed that his assent would be enough, and that if he wasn't the card holder, he'd make sure it was OK. Wrong.

I've sorted it on the basis that the payment was one-off, authorised for that payment ONLY, and future payments are not authorised. Money should be returning back to it's rightful place in time for Christmas, thank God. :A

Phew.

Voyager2002

Well done!

Before you suppress (or drown) this painful memory, force your brother-in-law to read through this thread. Possibly he might comprehend the sheer hassle that is manner of being causes for all sorts of people.

Clive_Woody

Fungas wrote: »

Sorted!! :j

Lloyds TSB have been worse than useless, with absolutely no support for their customer. Their Debit Card Disputes "service" line (which they diverted to) had a 20 minute queue which, being at work, I can't wait in.

Ultimately, the advice given on here was collectively of great support, and thanks to everyone for their inputs.:T

I rang Swinton's and eventually got my brother-in-law's assent to discuss his account. I made absolutely clear (and noted this in case it was needed in correspondance in future) that the payment my wife made on behalf of my brother back in August was for a one-off payment ONLY; no assumption should have been made on the part of Swinton that they could reuse this card for further payments. Amazingly, the branch manager agreed with me! (duly noted too). She contacted her head office with the info, and they've agreed to refund the payment on account of it being unauthorised (not 'arf).

What she did say was this, and this is an important factor in credit schemes which other's have highlighted: the T&Cs that my brother-in-law signed up to suggested that *any* credit or debit card used for payments to his account could be used in future. Regardless of who the card holder is, Swinton assumed that his assent would be enough, and that if he wasn't the card holder, he'd make sure it was OK. Wrong.

I've sorted it on the basis that the payment was one-off, authorised for that payment ONLY, and future payments are not authorised. Money should be returning back to it's rightful place in time for Christmas, thank God. :A

Phew.

Congratulations

Go and have a big glass of wine, I think after all this you deserve it.

Have a good Christmas.