Claw Back Commission

dunstonh

Correct. So I don't have any agreement in writing. So I should be ok?

That agreement is more recent than the one you probably have. However, its amazingly short and lacking detail.

As has been said already, if there is no fee agreement in place they cannot enforce a fee payment.

If they go to small claims court, they have to produce evidence that you owe this money. That means an agreement to pay them £x. They have not produced any agreement to date.

in answer to your question Quentin (Not at this stage (have you set this up by making a formal complaint to the broker already?) - i made a formal complaint to the broker but did nothing with regards to the FOS.

You go to the FOS only when your complaint is rejected by the firm.

Quentin

Badger72 wrote: »

in answer to your question Quentin (Not at this stage (have you set this up by making a formal complaint to the broker already?) - i made a formal complaint to the broker but did nothing with regards to the FOS.

Has the broker replied?

If you have waited 8 weeks and still not got a reply (or a final decision) you can involve the FOS. (But as already advised, this is a quite separate avenue to follow, and as far as the the legal action being threatened, just ignore that and see what happens)

Badger72

Quentin wrote: »

Has the broker replied?

If you have waited 8 weeks and still not got a reply (or a final decision) you can involve the FOS. (But as already advised, this is a quite separate avenue to follow, and as far as the the legal action being threatened, just ignore that and see what happens)

Broker replied 7 weeks ago to let me know that there was no signed agreement so therefore couldn't send me one. They gave me an option to pay monthly or straight away with a 200 reduction in fee. I ignored this, the deadline passed and I then received the letter on Saturday to say that pay up in 7 or face small claims court.

Badger72

dunstonh wrote: »

You go to the FOS only when your complaint is rejected by the firm.

So now? Confused. Essentially they will send me to court in 7 days as am not paying, so what does the FOS complaint do? Delay by further 8 weeks? Worth doing?

Quentin

But what was the grounds for your "complaint"? (What do you want the FOS to rule on?)

As far as the small claims court is concerned, as previously advised, this is probably a bluff (and only cost them a stamp to send it you! Well worth it if they were able to "frighten" you into paying!).

If they go to court, it is up to them to prove you owe this money (ie not up to you to prove you don't), and how can they with no contract in place?

Don't worry about the 7 days - you won't end up in court next week!

Badger72

Quentin wrote: »

But what was the grounds for your "complaint"? (What do you want the FOS to rule on?)

As far as the small claims court is concerned, as previously advised, this is probably a bluff (and only cost them a stamp to send it you! Well worth it if they were able to "frighten" you into paying!).

If they go to court, it is up to them to prove you owe this money (ie not up to you to prove you don't), and how can they with no contract in place?

Don't worry about the 7 days - you won't end up in court next week!

Thanks - maybe it wasn't a complaint as such, in fact at the bottom of the letter I asked them to clear up some points I asked them before I complained to the FOS. So shall I just go and see what happens, if need be go to court, or do i complain to the FOS now?

Quentin

"Going to court" is a long way off. Before this happens the broker has to decide what to do when you ignore his threat to take this to court, and don't pay. (If he decides to continue, it will cost him to get the summons issued, then when you deny owing any money, it will cost him more to pursue the case to a hearing). Long before a hearing takes place he will have to provide you with the details of his claim (plus any documents he intends to use to prove his case (which he hasn't got!).

Regarding the separate issue of the complaint, it doesn't seem you have really sent the broker a "complaint" which you can take further if not satisfied.

What are the grounds for the complaints you raised at the bottom of the letter?

Badger72

Well the complaint is centred around being threatend/demanded to pay a ludicrous fee when no agreement made/wasn't informed.

dunstonh

Essentially they will send me to court in 7 days as am not paying

They cant send you to court in 7 days. For them to start court action they have to submit a request for small claims at the court. They then have to provide evidence of your liability to pay this fee. You will also give your response in writing stating why you dont think you are liable. This will go through a filter system to see if there is enough to put it in front of a judge. It can be thrown out at this stage as well.

You havent had any notification of court yet.

so what does the FOS complaint do? Delay by further 8 weeks? Worth doing?

In the court submissions, the firm has to show it has made every effort to give you a chance to pay. With you referring the complaint to the FOS, you would state in your written return to the court that you have requested the independent adjudicator (the FOS) to review this case and will abide by their decision. Whilst the court operates independently of the FOS, they would almost certainly consider any action by the firm to claim money before its gone through arbitration as being inappropriate and would either throw the claim out or put a stay on it. Even if they didn't a judge is unlikely to be impressed with a firm wasting court time when the adjudication process is not yet complete.

Re the complaint. It doesnt sound as if you have made a complaint. You should do so now. A complaint would see you sent a letter by the firm telling you that they have your complaint and will review it and that they have 8 weeks to respond blah blah..... If you havent had that, then you havent complained. You need to start that process ASAP if that is the case.

magpiecottage

There have been some developments recently on this issue as APS Financial Services and Beacon Financial Ltd both had to give undertakings in respect of clawback.

Essentially, a firm CAN recover clawback from you but only if there is provision for it within the Client Agreement and it is fairly implemented. They may have provided you with a copy of the agreement but it doesn't appear on their website and if you relied on the documentation there, then, in my view, it would probably be unfair to rely on some other documentation.

If you cancelled under the cooling off period then the contract is treated as if it never existed (at least a pure protection insurance policy is).

Even if that were not the case the fact that you say you cancelled because you could not afford it that immediately immediately sets off alarms about suitability.

That is not to say I would automatically uphold a complaint of this nature but it would raise concerns.

However, my understanding is that you have complained to the firm and subsequently it has told you if you do not pay up, it will sue you.

I would say that they are not about to shift and that any reasonable person would interpret that as a final response from them.

I recommend you print off copies of ALL correspondence between you and them and the FOS form, complete it and send it off first class today. Once Court procedings have started FOS cannot intervene but if an Ombudsman decised they cannot charge you then that will be legally binding on them and a court would have to follow that decision.

Incidentally, whilst DaCouch is right that Compliance Consultants CAN be expensive, I would charge them a lot less per hour than they want to charge you!

But they are not clients of mine.