Section 75 - claim getting nowhere - advise please

mothership_2

Hi

Have a S75 claim in with MBNA against a merchant (retailer) from whom goods were purchased (but never collected and are still in fact with the merchant) but it turns out I had been wrongly advised by the merchant and the goods were unfit for purpose. Merchant refused to issue refund claiming it was a "change of mind". MBNA agreed to try to get money back under Section 75 because they are jointly liable.

Now, the original purchase was in Oct 2010 and MBNA were advised about 2 weeks afterwards. MBNA have not been charging any interest on the card but neither have they refunded me, saying instead that they would pursue the merchant to obtain a refund but if they don't succeed I would have to go to court and have 6 years to claim. How does the joint liability thing work? What is S75 as it seem to be merely a means to get the credit card company to lobby for refund without any real "teeth".

The merchant has been steadfastly ignoring/fobbing them off since October last year. Last week MBNA rang to say the merchant will be contacting me to arrange to send a payment by cheque.

Not only have they not yet contacted me (I don't think they will either) but since they have my address I don't see why they would need to.

Can I simply insist that MBNA refund me or is this the right way for S75 claims to work?

Mothership

Tixy

This isn't the right way for section 75 to work. If you have a claim under section 75 then the card provider should pay you back straight away. Its then up to them to try to get the money back from the retailer.

I'm not sure if your claim would be valid under section 75 though - maybe someone else can advise on that.

ILW

Section 75 is about failure to supply.
Iy appears it is just your word against the retailers wheter goods were unfit for purpose or not. Has this claim been proved in any way?

mothership_2

Just to clarify, the goods actually purchased was some wooden flooring following an onsite survey/inspection carried out by the merchant the week before. When their fitter then came to do a more detailed measure I was advised that my subfloor was too uneven to fit the flooring to. I was quoted huge amounts to level the subfloor by builders and opted to get carpet instead.

I asked for a refund bearing in mind their own 'expert' had originally been out and advised on the goods I had chosen and at no time did he say the floor was too uneven. The floor was never fitted and has never left the company's premises. The store manager also agreed that the fault was their 'surveyor's who should have advised about the uneven floor to begin with and he completed a 'Refund application' form as he couldn't process amounts greater than £250 in store.

MBNA have agreed with me the money should be refunded by the merchant and are trying to claim back the money. They are doing so under their S75 obligations I believe. I have not been sent any S75 guidelines and there are no available rules/regs that I have found. MBNA have original receipt and other related paperwork now too.

moonrakerz

MBNA are just trying to get out of their responsibilities.

If you have a valid claim under S75, you can claim against the card issuer - it is then their responsibility to pay you OUT OF THEIR POCKET, not to try and get the retailer to refund you.

"Section 75 does not, in itself, provide grounds for a claim against a supplier. Customers must have a valid claim of breach of contract or misrepresentation under other law, such as the Sale of Goods Act or the Misrepresentation Act. If they do, then they have a like claim against the card provider for the full amount of the claim"
(Financial Ombudsman)

mothership_2

Cheers Moonraker for that, how do I proceed from here then? MBNA have not sent me a letter explaining under what law or obligation they are assisting me so I have always been unsure how they can be 'jointly liable' but not actually offer me a refund.

I assume that since MBNA are happy to pursue the retailer then they deem this to be a valid claim. If this is correct then I should just be able to get them to refund me and then if they recover the money all well and good for them - yes?

Not sure how my experience fits with the ombudsman quote you included below. Sorry for being thick but legalese always confuses me.

moonrakerz

mothership wrote: »

I have always been unsure how they can be 'jointly liable' but not actually offer me a refund.

"Jointly liable" does not mean 50% each: it means that you can pursue either as BOTH are 100% liable ! (obviously it would be fraudulent to take monies off both !!)

Just go back to MBNA (in writing) and say that they are fully liable and if they don't pay up then you will take action in the County Court. Give them 28 days and point out that they will have to cover your costs as well !

thenudeone

ILW wrote: »

Section 75 is about failure to supply.

It is actually much wider than that. Any breach of contract is covered including breach of implied terms such as the Sale of Goods Act.

http://www.moneysavingexpert.com/shopping/section75-protect-your-purchases

(1) If the debtor under a debtor-creditor-supplier agreement falling within section 12(b) or (c) has, in relation to a transaction financed by the agreement, any claim against the supplier in respect of a misrepresentation or breach of contract, he shall have a like claim against the creditor, who, with the supplier, shall accordingly be jointly and severally liable to the debtor.

mothership_2

Right then, thanks to all who have helped with advice so far, here's what I'm going to do.

Today ring MBNA and ask about the funds.

If they say funds will be refunded by them (MBNA) all good.

If they still insist they have to pursue the retailer to get the money then I will write to MBNA and point out that they are jointly and severally liable with the supplier so irrespective of whether they recoup their losses they must refund my money within say, 14 days.

Would you guys recommend this action? Is it likely to work or will I end up going to court do you think?

chattychappy

I would back up in writing too, just so this doesn't go on forever. Easier then to escalate to the FOS, though hopefully it will be done and dusted by then.

I would point out to them that:
1) They have already accepted that a refund is due and that the facts do not appear to be in dispute.
2) It is not for them to hold back your refund pending their reimbursement by the merchant.

lisyloo

I would send any letter by recorded delivery for an extra 74p so that it doesn't get lost in the post.