Section 75 claim rejected by credit card company...what next?

topcatk_2

Hi,

I am planning to complain to the Financial Services Ombudsmen.

Has any one got any experience of doing so? and would you recommend also raising a small claims court application at the same time or wait until the FOS has ruled?

Any advice would be appreciated.

The original reason for the claim is here: https://forums.moneysavingexpert.com/discussion/3504551=

Many thanks in advance.

K


THE OUTCOME
Just to close the loop and hopefully to help/give hope to others. Took claim to FOS in Feb 2012. Adjudicator ruled in our failure on breach of contract in June but MBNA didn't accept the ruling and insisted it went to the Ombudsman. He ruled in our favour in Dec 2012 and MBNA have now refunded up the money. Thank you to all for your advice with this.

arcon5

What was the reason for their rejection?

It may be worth contacting the CC company and seeing if there is a way to appeal it or how to file a formal complain. If you have exhausted your options with the CC company look at taking a different route.

Oliver14

As you said in your original post you had no paperwork showing the terms of the membership. If you could not show them what the terms were how would the credit card company know if they had been breached or not?

arcon5

Oliver14 wrote: »

As you said in your original post you had no paperwork showing the terms of the membership. If you could not show them what the terms were how would the credit card company know if they had been breached or not?

Op has paperwork saying the treatment was included

topcatk_2

Oliver14 wrote: »

As you said in your original post you had no paperwork showing the terms of the membership. If you could not show them what the terms were how would the credit card company know if they had been breached or not?

Hi,

You are right I don't have any clear paperwork that said the treatments were included in the 'upgrade', I was told verbally the treatments were still included......I have the original membership conditions and then the letter saying I have upgraded and I have additional benefits. On top of that the Spa continued to give me treatments for 5 months before we were told that treatments weren't included> However I have an email stating that "we will not continue treatments on a platinum membership basis" and therefore I believe this shows a clear breach of contract.

As for the reason of MBNA rejection....the letter is not clear at all. They state the merchant is still trading and disputes a breach of contract.....and therefore MBNA does not accept any liability. No clear statement of the rejection reason given.

I have written to them again asking them to reconsider, especially since I don't believe they have looked at all at the information we have provided and I have given them a further 10 working days to respond to say they will reconsider their decision. I have yet to have a response.

visidigi

arcon5 wrote: »

Op has paperwork saying the treatment was included

in the original membership, not the 'upgrade'

Upgrades don't always include what the contract included prior to upgrade.

It would be up to the subscriber to check and agree to the features.

Assumption doesn't cut it, and I would guess this is why it was declined...also worth noting MBNA stated the trader (gym) has declined to accept the attempted recharge and as the bank can't counter what they've said I think this is why you got declined.

topcatk_2

visidigi wrote: »

in the original membership, not the 'upgrade'

Upgrades don't always include what the contract included prior to upgrade.

It would be up to the subscriber to check and agree to the features.

Assumption doesn't cut it, and I would guess this is why it was declined...also worth noting MBNA stated the trader (gym) has declined to accept the attempted recharge and as the bank can't counter what they've said I think this is why you got declined.

Thanks for your view but the Spa has 'accepted' the misunderstanding by offering us the refund .....but with conditions. I want a unconditional refund.

We did check and agree the features.... And a contract can be verbal. The
FOS has already ruled on misrepresentation doesn't have to be written. By given us 5 months of treatments and then telling us in writing they won't continue with them, I can't see how you can say it is an 'assumption'? To me that is a clear breach of the contract . I.e we will not continue to honour the services previously included.

Thanks for your view though and v helpful as it confirms what I need to stress in my appeal.

arcon5

visidigi wrote: »

in the original membership, not the 'upgrade'

Upgrades don't always include what the contract included prior to upgrade.

It would be up to the subscriber to check and agree to the features.

Assumption doesn't cut it, and I would guess this is why it was declined...also worth noting MBNA stated the trader (gym) has declined to accept the attempted recharge and as the bank can't counter what they've said I think this is why you got declined.

But upgrading a package is to improve on the existing package. If ops existing packaging says have xyz and the upgrade promotion says you will also receive abc then surely a reasonable person would expect you to now receive xyzabc, not xyabc.

If they was not just improving upon, but modifying the existing package - surely this should have been stated, or the advert should have stated what was included and not what you get extra.

Combined with the fact op received treatment for a good portion of the time would also help support the argument the treatments was still part of the package.

Personally I think op has a valid case.

visidigi

topcatk wrote: »

I can't see how you can say it is an 'assumption'? To me that is a clear breach of the contract . I.e we will not continue to honour the services previously included.

The assumption comment was based on your original post int he original thread where you said...

topcatk wrote: »

Can I 'force' them to honour what I thought I was signing up for esp since they have been allowing me to have a treatments without challenge (and not paying additional money for) since April. Any advice would be really, really apprecaited. Thanks in advance.

It seems they erroneously provided you with treatments - I must admit, I don't disagree with your situation and your opinion of it - I think you are right, but its very much down to what documentation you have, not opinion etc - the problem is MBNA go to the gym and the gym deny they have done anything wrong - I don't think you should do this through a S75, I think this is a case for court to provide the unreasonable nature of the terms they have and the modifications they made.

arcon5 wrote: »

But upgrading a package is to improve on the existing package. If ops existing packaging says have xyz and the upgrade promotion says you will also receive abc then surely a reasonable person would expect you to now receive xyzabc, not xyabc.

If they was not just improving upon, but modifying the existing package - surely this should have been stated, or the advert should have stated what was included and not what you get extra.

Combined with the fact op received treatment for a good portion of the time would also help support the argument the treatments was still part of the package.

Personally I think op has a valid case.

I think the OP does have a valid case, but I don't think the current approach will yield a result. I personally think going after the gym directly would be the ideal situation.

An upgrade does not automatically imply the current features remain. e.g. when you upgrade a mobile contract you may get more minutes, more texts and more data, but some of the basic fundamental services may change, e.g. charges for voicemail, charges by data use (remember the old school unlimited data tariffs which disappeared...)

For a gym example, basic membership gets you access to basic classes, upgrading to premium membership gets you premium classes, but you are not entitled to attend the basic classes anymore...would you be complaining? See its this sort of thing which makes reading and not assuming critical to contracts now.

We should all accept that the terms and conditions (which bind nearly all scenarios on this forum) are documents which you really should read, not assume. There's nothing to make a company provide all features and improve on them with an upgrade...

Again I agree the OP has a case, but I can see why the S75 failed and IMO won't be successful - at least not quickly and it mught be best place to sue the gym direct in court.

topcatk_2

So would your recommendation be to raise the complaint with the FOS and the small claims court at the same time? We have already attempted to pursue the spa by letter but got nowhere apart from the refund with conditions.

visidigi

I would go through the letter process, with the LBA and follow it up with the process of court - I think the, frankly underhand, 12 month contract extension would have the manager and the gym in hot water.

I think unfortunately the S75 process can't really account for the behaviour of the gym, its manager and the original paperwork - hence why having it documented and submitted, read and digested may yield you more effective and rewarding results.