Bank-smart now charging me!

ricardo274

Hi Kerry , the T&C I received were not dated.

magpiecottage

ricardo274 wrote: »

the T&C I received were not dated.

If you look here (it is a pdf you can download and save) the T&C currently posted on its website DOES require the signatory to date it.

If yours has no date, that could mean it was tampered with but, at the very least, it has been altered.

It is out of date, though. It talks about a Consumer Credit License. Leaving aside the fact that it is a Licence not License, they no longer exist as it is now regulated by the FCA because the OFT has been abolished. However, that means this must be at least a year old and probably rather more.

However, look at paragraph 12)

"After engaging our services (by signing these Terms and Conditions and each individual Letter of Authority) you agree to cooperate with the claims process in its entirety and therefore failure to complete & return documents required for your claim may result in a breach of this agreement and we may seek to recover our reasonable costs if we are unable to complete our services as a result."

Note the bit that I have put in bold. According to the T&C document, if you have not signed an individual LOA for a particular complaint, no contract exists.

With regard to CG2015 - there are two lines of complaint. First, available to everybody, if they are simply signing you up and expecting you to then do all the leg work, then paragraph 12 seems to amount to an unfair term in a consumer contract (in the context of the Unfair Terms in Consumer Contracts Regulations 1999) and you can complain on those grounds and say if they do not agree to set it aside you will go to the Legal Ombudsman.

In CG2015's case, there also seem to be grounds to complain that they failed to make adequate provision for a vulnerable person.

Finally, that Consumer Credit Permission. If you get a complaint upheld for making up fees that do not really exist, you can report that the the Financial Conduct Authority (not the Financial Ombudsman Service).

This is because it indicates that the firm may not be fit and proper to hold consumer credit permission.

Legal_Ombudsman

[FONT=&quot]If you have received poor service from a CMC and you wish to make a complaint against them, you must first make a complaint to that organisation and give them eight weeks to deal with your complaint.

[FONT=&quot]If you receive a final response from the CMC within the eight weeks, or they fail to respond and you remain unsatisfied you can bring your complaint to the Legal Ombudsman.[/FONT]

https://www.legalombudsman.org.uk/cmc

7yearnightmare

Apologies for the length of this post but I can't find how to insert a pdf.

Below are the T&Cs that Bank Smart sent to me earlier this month. There was no signature block and nothing was signed or dated.

I have this evening made what could be an interesting discovery and this may or may not mean anything BUT out of curiosity I looked up the name of the person who signed the letter responding to my complaint. Unless there is another person of the very same name this person states on his linked in profile that he was the IT Director - Not Complaints Department as is on the letter - but more importantly - he left Bank Smart in May 2013.

Symmetric SystemsLimited trading as Bank-Smart (the "Company")

TERMS & CONDITIONS

1. The services provided by Bank-Smart shallconsist of one or more of the following:
1.1)The evaluation of a potential claim as authorised by a Letter ofAuthority or other claim authorised by you. 1.2)Preparation of a claimvaluation, calculation of interest where applicable and/or any other relevantclaim documents required to issue a legal demand for payment to the ThirdParty.
1.3)Negotiatingand settling the claim with the Third Party or providing sufficient assistancefor the client or other
representativeto obtain settlement. ('Third Party' is any party that the Client believescaused a disadvantage).
2. Your obligations and the fees payable
2.1)You agree that the Company is fullyauthorised to act on your behalf to make a subject access request under the"Data Protection Act 1998" and/or "Consumer Credit Act1974" for information from the last 6 years or 5 years for Scottishaccounts or for any period for which is allowable by law and may result in ahigher settlement. You agree that any fee requested by the Third Partyfollowing a request for information which is allowable by law (and not exceedinga value of ten pounds per account/policy/financial product) will be payable byyou or recovered from you if paid by Bank-Smart on your behalf initially.
2.2)You agree that once the Company hasstarted the claim process on your behalf with the Third Party, the Company'sstandard fee as set out in condition 2.8 of these terms and conditions willapply to any settlement, debt write off/reduction or other benefit agreed uponwith the Third Party through either the Company or you personally, settlementdirect from your bank/financial institution or through another claimsmanagement company and you authorise settlement to be paid direct to Bank-Smartwhether or not any settlement is referred to as a gesture of goodwill orotherwise.
2.3)Once the Company has started the claimprocess, in the event that the Third Party issue a settlement directly to youraccount or reduces your debt with them by the same amount, or other benefit,you agree to contact the Company within 14 working days and pay any monies owedto the Company under the terms of this agreement within 14 working days of saidcompensatory deposit or acknowledgement of settlement.
2.4)We reserve the right to make a processing charge of up to amaximum of one hundred and fifty pounds (in addition to our original fees) ifwe have to take legal action to recover our fees from you.
2.4.1)We reserve the right to charge a fee per invoice (in addition to our originalfees) if we have to instruct third party collectors to recover our fees fromyou or if invoices are settled later than 14 working days after issue. The feecharged will be based on a scale as follows: Invoice Value: £0 - £99.99 =Collection Fee: £10; Invoice Value £100 - £249.99 = Collection Fee: £25;Invoice Value £250- £749,99 = Collection Fee: £40; Invoice Value: £750 + =Collection Fee: £75.
2.5)You agree that you will inform the Company within 14 workingdays of receiving any correspondence from the Third Party in relation to theclaim that the Company is making on your behalf and that you agree to the ThirdParty supplying documents direct to Bank-Smart.
2.6)Subject to the provisions of condition2.8, you shall pay each invoice submitted to you by the Company in full andcleared funds within 14 working days of receipt. Late payment may incur acharge as per term 2.4.1.
2.7)Dueto the complicated nature of the claim and the expenses involved, we charge thefollowing fees;
2.7.1)Twenty five percent of the amount the Third Party agrees to pay in settlementof the claim or deduct from any debt you have with the Third Party plus VAT,subject to the recovery of our processing costs* plus:
2.7.2)costs** which includes VAT, all court costs and legal fees and such fees willbe deducted from the final settlement payment, or will be paid to Bank-Smart byyou within 14 working days of receiving settlement if payment is made directlyto you or your debt with the Third Party reduced by the same amount/otherbenefit. 2.7.3) Any Third Party may charge you up to ten pounds for theprovision of statements and if they are unable to deduct this from your accountwe may pay it on your behalf and invoice you for the same amount.
*Ourprocessing costs are based on the expenses we have incurred during the processof your claim. We will always try to mitigate these costs where possible andyou can contact us at any time for the up-to-date costs incurred in theprocessing of your claims. **Where legal proceedings are required to settleyour claim we will charge for the preparation of the legal documents of betweenone hundred and fifty and four hundred and fifty pounds dependent upon thecomplexity of the claim. If the Company determines that the value of your claimwill not reasonably cover the costs of such preparation we may discontinue yourclaim after giving written notice to you. This charge, and any solicitors fees,will be deducted from your final settlement or invoiced in the event your bankdeducts your settlement from an outstanding debt with them.
Example Service Charges
Example 1 Example 2
Example 3
Charges/premiums reclaimed/other claim value Example Interest Reclaimed
£950 £300
£290 £80
£2,000
£560
Bank-Smart Commission (25% plus VAT)
£310 + £62 VAT £95 + £19 VAT
£640 + £128 VAT
Estimated Bank-Smart Processing Costs*
£250 £100
£400
Legal Fees and Solicitors Costs
N/A N/A
£350
Bank-Smart TOTAL Fee (25% subject to costs + VAT)
£310 + £62 VAT £100 + £20 VAT £640 + £128 VAT
Legal/Solicitors Costs Recoverable from you
N/A N/A £350
Settlement (the amount payable to you)
£868 £260
£1,442



2.8) You agree that in the unlikely eventthat your claim is not settled before court proceedings are required or ahearing date is scheduled to address this matter you will attend said hearingin person at the required court and cooperate fully with any legal proceedings.Failure to cooperate with the legal proceedings or to attend the said hearingwill result in a failed claim and you will be responsible for all applicablecosts.
2.9) The Company will deliver invoices during the course of theclaim for our fees (as set out in condition 2.7) whenever a settlement from theThird Party is agreed (whether part or full settlement) and for the avoidanceof doubt further invoices will be issued whenever any further settlement isagreed, your debt reduced by way of settlement or other benefit received byyou.
2.10)A full list of our basic processingcosts can be obtained by request at no cost by emailingclaims@bank-smart.co.uk, by writing to 11-15 Betterton Street, Covent Garden,London, WC2H 9BP, or by visiting the Company website.
2.11)Due to the complicated nature of claimsand the tactics used by Third Parties to delay claims, the time for claims tocomplete can vary. Claims could take a long time to complete and you agree tobe bound by these terms until completion or cancellation (and payment ofcancellation fee in full). Success is in no way implied.
2.12)You shall co-operate with the Company inall matters relating to the claim and in particular respond to the Company'scorrespondence as soon as reasonably practicable or you may incur furthercosts.
2.13)Without prejudice to any other right orremedy it may have, if you fail to pay the Company on the due date for payment,the Company may: 2.13.1) suspend services on all or some of your claims untilpayment has been made in full. 2.13.2) forward to a third party debt recoverycompany at a further cost per invoice (see term 2.4.1). 2.13.3) issue courtproceedings for the recovery of the debt, plus costs, all court fees andinterest.
3. Liability
3.1) This condition 3 sets out the entire financial liability ofthe Company (including any liability for the acts or omissions of itsemployees, agents or sub-contractors to the Company) in respect of: 3.1.1) anybreach of this agreement; and 3.1.2) any representation, statement or tortiousact or omission (including negligence) arising under or in connection with thisagreement.
3.2)The Company's liability to you — the Company shall not be liable to you for anyloss or damage as a result of: 3.2)1,the Company having acted on yourinstruction or following receipt of any information from you;
3.2)2.theCompany's services being unavailable through any cause beyond our reasonablecontrol.
3.3) The Company will not be held responsible, other than thatcarried out by the Company, by any action taken by the Third Party against youas a result of any claim made on your behalf by the Company.
3.4) You must disclose if you have received any settlement for anyclaim registered with the Company or any part of monetary recompense or haveinstructed another organisation to do so on your behalf. Failure to disclosethis information in writing will leave you liable for all reasonable costsincurred by the Company.
3.5) You agree that any debt or liability incurred by you underthis agreement shall be solely the responsibility of you, the Claimant, unlessas a direct result of the actions of Bank-Smart.
3.6) The Company reserves the right to apply any monies recoveredfor you on any claim in or towards satisfaction of any monies due by you andpayable to the Company in respect of that claim and any other claims dealt withor being dealt with for you by the Company.
4)Cancellation and Termination
4.1) You have 14 days from the date ofsigning the Letter of Engagement to cancel your claim(s) or 14 days from the date of signing the original Letter ofAuthority. This should be by written notice by post to Bank-Smart, CancellationTeam, 11-15 Betterton St, Covent Garden, London, WC2H 9PB or email to [EMAIL="cancellations@bank-smart.co.uk"]cancellations@bank-smart.co.uk[/EMAIL]. Written/email notification must be receivedby us within the 14 day period and any cancellations of claims after this periodwill be subject to a cancellation fee dependent upon the tasks we have carriedout. The fee may be anything from our basic processing costs up to our fullcommission and costs, details of which can be found by clicking the 'cancel'link next to your claim within the Bank-Smart client area of the website orwithin the help section of the Company website, by email or by writing to us atBank-Smart, Cancellation Team, 11-15 Betterton St, Covent Garden, London, WC2H9PB. Cancellations after the demand for payment has been made to your ThirdParty are subject to our full fee as stated in condition 2.7. Proof of sendingis not proof of delivery and we recommend that cancellation letters be sent byrecorded delivery. Please ensure that you keep a copy of all cancellationemails.
4.2)If you settle your claim with the Third Party before we have calculated thevalue of your claim you will be liable
to pay twenty fivepercent plus VAT of the amount refunded, or our basic processing costs,whichever is the greater.
4.3) This agreement shall terminate upon:settlement being obtained from the Third Party and full payment of our fees; orupon the Company giving you notice that no further action in relation to yourclaim will be taken by the Company, and full payment of any fees; or uponreceipt of written cancellation and payment of relevant fee(s).
5. Complaints
5.1) If you are unhappy with the Company'sservice you have the right to complain. If you have a complaint please view ourcomplaints procedure on our website or contact us by emailing [EMAIL="complaints@bank-smart.co.uk"]complaints@bank-smart.co.uk[/EMAIL] or by writing to us at Bank-SmartComplaints, 11-15 Betterton St, Covent Garden, London, WC2H 9PB.
6. Data Protection
6.1) The Company will process all informationin accordance with the Data Protection Act 1998. We use the personalinformation you provide to assess your position and carry out the services weprovide. By providing your



porsonalinformation you explicitly authorise us to process your information. If youprovide information to us about another party you confirm they consent to usprocessing their personal information and that you collected the information ontheir behalf. You can request a copy of the information we hold about you atany time by writing to the Company's address and enclosing a cheque for £10made payable to Symmetric Systems Limited. We may disclose the information youprovide to our trusted partners who may contact you about other relevantservices. If you do not want us to do this please let us know when returningyour claim pack.

7. Force Majeure

TheCompany shall have no liability to you under this agreement if it is preventedfrom or delayed in performing its obligations under this agreement or fromcarrying on its business by acts, events, omissions or accidents beyond itsreasonable control, including strikes, lock-outs or other industrial disputes(whether involving the workforce of the Supplier or any other party), failureof a utility service or transport network, act of God, war, riot, civilcommotion, malicious damage, compliance with any law or governmental order,rule, regulation or direction, accident, breakdown of plant or machinery, fire,flood, storm or default of suppliers or sub-contractors.

S. Variation & Waiver

8.1) No variation of this agreement or these conditions or of any of thedocuments referred to in them shall be valid unless it is in writing and signedby or on behalf of each of the parties.

8.2) A waiver of any right under this agreement is only effectiveif it is in writing and it applies only to the party to whom the waiver isaddressed and the circumstances for which it is given.

9. Severance, Assignment & Rights of ThirdParties

9.1) If any provision of this agreement is found by any court oradministrative body of competent jurisdiction to be invalid, unenforceable orillegal, the other provisions will remain in force.

9.2) You shall not,without the prior written consent of the Company, assign, transfer, charge,sub-contract or deal in any other manner with all or any of its rights orobligations under this agreement.

9.3) This agreement is made for the benefit ofthe parties to it and (where applicable) their successors and permitted assignsand is not intended to benefit, or be enforceable by, anyone else.

10. Notices

Noticesgiven under this agreement shall be in writing, sent to the address or emailaddress provided by you or in the form of comments through your online secureBank-Smart account. A notice is deemed to have been received: if deliveredpersonally, at the time of delivery; in the case of email, at the time oftransmission; in the case of pre-paid first class post or recorded delivery, 48hours from the date of posting; and, if deemed receipt under this condition isnot within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a daythat is a business day), at 9.00 am on the first business day followingdelivery. To prove service, it is sufficient to prove that the notice wastransmitted by email to the email address of the party or, in the case of post,that the envelope containing the notice was properly addressed and posted.

11. Personal Injury Claims

11.1)Personal injury claims will be passed to a third partyspecialist solicitor who will complete your claim for compensation on a no winno fee basis. Where we refer your case to a solicitor we may receive a referralfee. This fee only applies on cases where the appointed solicitor is able torecover their fees from your opponent and is no more than five hundred poundssterling. This does not affect the way your claim is handled. You will receive100% of the compensation awarded for personal injury claims.

12. Governing Law and Jurisdiction

12.1)This agreement and any dispute or claim arising out of or inconnection with it or its subject matter, shall be governed by, and construedin accordance with, the law of England and Wales.

12.2)The parties agree that the courts ofEngland and Wales shall have jurisdiction to settle any dispute or claim thatarises out of or in connection with this agreement or its subject matter.

7yearnightmare

Further to the above the Legal Ombudsman has now commenced an investigation on my behalf. I have also made an appointment to seek legal advice. I will post everything that I find out in the hope that it just might help others in the same situation.

magpiecottage

7yearnightmare wrote: »

Further to the above the Legal Ombudsman has now commenced an investigation on my behalf. I have also made an appointment to seek legal advice.

I would hold off on the legal advice pending the Ombudsman's decision.

If nothing else, it means that Banksmart will now face a fee of £400, I believe.

7yearnightmare

It's free legal advice provided through my work and the Legal Ombudsman suggested that this is something I may wish to do. As Bank Smart have given me 30 days to either settle the account or come to a payment agreement I wanted to know what my best course of action would be. The last thing I want is MIL Collections threatening to commence bankruptcy proceedings against me again. I have written to Bank Smart to ask them to put any further action on hold until such time as the LO has been able to investigate the matter, however I believe that they are not legally obliged to agree to this.

Bank Smart have replied to me saying that they are willing to reduce the fees from £2461.50 to £1110.72 if settled within 30 days. No explanation whatsoever has been provided as to how they have arrived at these amounts. In saying that - regardless that they have more than halved their fees 1) I don't have that sort of money to pay them even as an interim measure to stop them from setting the bailiffs on me and 2) I don't believe I owe them anything at all.

I cannot believe that after 8 years (it was June 2007 when I was first in contact with them) they can suddenly start demanding this amount of money and claiming breach of contract. It's all very, very wrong.

magpiecottage

If you can get free legal advice that makes sense.

My guess is that they have realised that from October they will not be able to bankrupt you for a deby of less than £5,000 (it is currently just £750).

I think, too, a court would first expect them to go through the small claims route. If so, then I believe you can contest it and ask that the matter is heard in a court local to you as opposed to one near them.

Hastings69

So after contacting both Bank Smart and the Legal ombudsman we have come to this situation...

The initial invoice of around £550.00, it has been reduced to £326.00 as the initial work they carried out for me was chargeable, they failed to inform me that the company they was trying to get some PPI back for me wanted further information, therefore that part isn't chargeable to me.

Both parties have to agree to the final cost or the case will be moved to a senior advisor.

To say that after 3 years of aggravation, stress and worry, this wasn't the outcome i was expecting, and to hand over £300 plus is gutting.

I will not be giving them my bank details, or card details. They will be getting several cheques from me..

Please, Please avoid this company like the plague, If they send you a letter asking if you would like them to claim back your PPI, throw it away.

magpiecottage

Looking at their terms and conditions, Hastings69 they are entitled to 25% commission (plus VAT) on any compensation they achieve, I believe.

If, as a result of their incompetence, they have achieved compensation of zero, they should receive 25% of zero.

If you do not think there is any realistic prospect of getting any money back then it is probably worth going with that. Otherwise it might be best to pay them off and do it yourself using the free process.

However, before that occurs, I suggest you contact the bank and ask them to confirm whether a "Final Response Letter" was sent and, if so, when. If it was more than six months ago then you will not get anything back anyway as they will be exempt from FOS intervention.

Also, if it was purely a bank charges complaint, these are generally not successful anyway.