bank won't accept PPI claim ... reclaim from underwriter?

dunstonh

The lack of documentation is not a problem. I have all my statements to show premiums paid. I didn't say I had no documentation. I said they don't have anything.

IN which case you make the complaint as normal and supply them the copies of the documentation. That is the standard method used where one party has destroyed data but the other has not.

tifo

dunstonh wrote: »

IN which case you make the complaint as normal and supply them the copies of the documentation. That is the standard method used where one party has destroyed data but the other has not.

I've done this. They send it back with "account not found". That's the problem. None of the banks will accept the claim. That leaves the underwriter. I've been to the FOS and they won't help. They say if a bank can't find my account then they can't be forced to raise a claim.

I raised a claim against Barclaycard (as the current creditor) who came back and said "we can't find the account". I sent them the statements and they didn't reply. I passed it to the FOS (bank was over 8 weeks investigating) and the bank said they can't find the account so the FOS said they can't help me.

It's still with Barclaycard who haven't sent a final response yet. It's been with them since July 2011. So they won't reply and the FOS won't help.

With PPI and stat interest the claim's around £3,900. I was paying roughly £41.00 per month for many years.

dunstonh

The normal position with the FOS is that they accept the documents from the account holder if the lender has got rid of them. However, perhaps its more a case that your documents dont show any evidence of mis-sale. Therefore they cant rule on it as there is nothing to show it was mis-sold.

magpiecottage

I see no point in going to the underwriter - their defence will be that they simply provided the cover and that was all they were obliged to do.

Go to court and as others have said, the defence is easy - it started more than six years ago and was shown on your statements so you should have complained then, not now if you did not want it.

FOS might be more sympathetic. If you take Goldfish there, they will need to show FOS that the liability was transferred - and FOS will then take it up with whoever it was sold to.

This doesn't mean they will not also try a timebar, though.

tifo

magpiecottage wrote: »

This doesn't mean they will not also try a timebar, though.

I thought the JR was also about a timebar, among other things, which the banks' trade body said it will not appeal? Didn't they take it to a JR because the FSA ruled that historic premiums must also be repaid?

tifo

magpiecottage wrote: »

Go to court and as others have said, the defence is easy - it started more than six years ago and was shown on your statements so you should have complained then, not now if you did not want it.

The response to that is that it wasn't known to be widely mis-sold until the FSA investigation and the JR, so the limitation is postponed until the consumer could reasonably have discovered the mis-sale. That means 3 years which would make a case within limit.

dunstonh

I thought the JR was also about a timebar, among other things, which the banks' trade body said it will not appeal? Didn't they take it to a JR because the FSA ruled that historic premiums must also be repaid?

The banks wanted the FSA to not apply their rules retrospectively and prevent complaints about early sales. It only applied to the FSA position. Not timebars applicable to a court of law.

Alpine_Star

tifo wrote: »

The response to that is that it wasn't known to be widely mis-sold until the FSA investigation and the JR, so the limitation is postponed until the consumer could reasonably have discovered the mis-sale. That means 3 years which would make a case within limit.

This is a another myth that you appear to have been infected with from CAG by misinterpreting the words contained in s32 of the Limitations Act.

The law of limitation exists because it was decided that there must come a point in people's affairs where there is certainty. That overriding objective must be borne in mind.

The English law has long recognised that clear rules strictly applied can lead to injustice. In the case of limitation it recognises that the strict application of time limits may lead to injustice and hence section 32 (1) of the Limitation Act 1980 which allows (in the words of the heading to the section) "Postponement of limitation period in case of fraud, concealment or mistake".

In any case where the section 32 (1) is pleaded the court will bear the overriding objective in mind - it will not allow the section 32 tail to wag the Limitation Act dog as that would undermine the whole principle of limitation. In any action you first have to show that there was some "fraud, concealment or mistake". Quoting the Act: "the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.’’

http://www.legislation.gov.uk/ukpga/1980/58

I emphasise the words in red because they are important as the effect of them in respect of PPI mis-selling claims works against the claimant because it imposes a certain degree of responsibility (or ''diligence'' as the Act states) on the claimant to have had discovered the mistake.

PPI mis-selling claims have 2 broad causes of action:

1) Non-optional - that the requirement to purchase the policy was misrepresented (usually verbally) as in some way conditional to the provision of credit.

2) Suitability - that the policy could never be claimed on because of restrictions on the policy holder's circumstances.

In each and every purchase of PPI the application form or agreement will always state somewhere that the policy is optional and the policy summary or policy itself will always detail the cover as these are both regulatory requirements, as is stating that the policy can be cancelled at any time.

Therefore, regardless of what the salesperson told the perspective customer of the policy's optionability or suitability during the sales process, the claimant could with reasonable diligence have discovered it on or around the time of purchase by simply reading the key documents and therefore it is at this point that the six year limitation clock begins to tick.

This is the very essence of the Holyoak v Lloyds judgment http://www.lexology.com/library/document.ashx?g=8af0bf00-700d-4b48-a129-4ee3fa818c40#page=1 and leads to the inescapable conclusion that in PPI cases the six year limitation period will necessarily begin on or around the time the policy was sold and as such s32 (1) c cannot be relied upon to extend it because crucially, it is not from when you actually became aware but when it is deemed you should or could have become aware. And that will invariably be the point the policy was sold.

magpiecottage

tifo wrote: »

The response to that is that it wasn't known to be widely mis-sold until the FSA investigation and the JR, so the limitation is postponed until the consumer could reasonably have discovered the mis-sale. That means 3 years which would make a case within limit.

That would not wash simply because they can point to the payments coming out on each of the statements and ask why you did not query them at the time they appeared if they were payments you did not recognise - as any reasonable person would.

That is going to be difficult to counter.

tifo

magpiecottage wrote: »

That would not wash simply because they can point to the payments coming out on each of the statements and ask why you did not query them at the time they appeared if they were payments you did not recognise - as any reasonable person would.

I later discovered that it was not suitable, when it came to claiming. This is the same with policies on other credit cards. So after paying for many years thinking it is going to help, when needed it had exclusion clauses for everything. That means it was unsuitable to begin with.

Up until the FSA investigation and maybe slightly before that, like many customers I did not know I could reclaim the premiums because the bank said it was not mis-sold and was suitable. Clearly it was not suitable later.

With s.32 of the Limitation Act, banks have misrepresented their position by always citing fair and transparent dealings. Again it is clear that this is not the case, for example on default charges or overdraft fees. To date they continue to cite fairness without providing a breakdown of how each charge is calculated. The law says it must reflect costs only and not make a profit.

How is the consumer meant to carry out due diligence if the bank insist they are right and won't provide info?