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

mo786uk

FOS claims take al ong time - probably over 6 months - just to be aware

topcatk_2

Thank you Visidigi.

Sorry I don't understand the abbreviation LBA....

and I am curious to understand fully your view that S75 wouldn't apply since:

We had a contract with a Spa to provide a service; they provided that service for 5 months and then tell us they will not continue to provide that service (by letter). They state by letter that there has obviously been a misunderstanding and offer us a refund, but with conditions. We believe that refund should be unconditional but the spa refuse to pay us an unconditional refund. Therefore we have sought a refund from MBNA, as the service was purchased on a credit card and we believe that the credit card company is jointly liable under Section 75 of the Consumer Credit Act. We can clearly show breach and misrepresentation, which are the 2 conditions either which satisfy a claim under the Consumer Credit Act.

I really appreciate your view on this; understanding how others view the situation allows me to strengthen my argument, in the areas of perceived weakness.

Thank you all.

K

arcon5

LBA = Letter Before Action = pre-court protocol giving the defendant the opportunity to come to an agree / agree to your demands before you file a claim with the county court

agrinnall

topcatk wrote: »

Thank you Visidigi.

Sorry I don't understand the abbreviation LBA....

and I am curious to understand fully your view that S75 wouldn't apply since:

We had a contract with a Spa to provide a service; they provided that service for 5 months and then tell us they will not continue to provide that service (by letter). They state by letter that there has obviously been a misunderstanding and offer us a refund, but with conditions. We believe that refund should be unconditional but the spa refuse to pay us an unconditional refund. Therefore we have sought a refund from MBNA, as the service was purchased on a credit card and we believe that the credit card company is jointly liable under Section 75 of the Consumer Credit Act. We can clearly show breach and misrepresentation, which are the 2 conditions either which satisfy a claim under the Consumer Credit Act.

I really appreciate your view on this; understanding how others view the situation allows me to strengthen my argument, in the areas of perceived weakness.

Thank you all.

K

Obviously MBNA think it's not as clear cut as you do otherwise they wouldn't have rejected your request. It won't cost you anything to complain to the FOS so you may as well do it but don't be surprised if they agree with MBNA. Taking it up directly with the gym, through court action if you feel you are likely to win and can accept the cost if you don't, is the course of action that is most likely to get you to where you want to be.

Flyboy152

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.

Any reasonable person would assume that an upgrade includes everything you have originally, plus other benefits connected with the higher level of service. Otherwise, it is not an upgrade at all.

wealdroam

As Agrinnall says.

You only have the cost of a stamp to lose by sending a letter before action.

Many sample LBAs around.
Just one site offering them...
http://www.tradingstandards.gov.uk/wirral/countycourtindex.htm

Many companies have been known to meet the demands without the extra cost of court. Definitely worth a stamp.
Send it recorded delivery.

arcon5

wealdroam wrote: »

As Agrinnall says.

You only have the cost of a stamp to lose by sending a letter before action.

And the paper

visidigi

Flyboy152 wrote: »

Any reasonable person would assume that an upgrade includes everything you have originally, plus other benefits connected with the higher level of service. Otherwise, it is not an upgrade at all.

Read the whole thread?

Assume? Its a contract, assume nothing where terms and conditions are involved. That, in this current day and age is the reason why so many people get caught out - they assume, when there is no legal obligation for an upgrade to contain what it did prior in 100% of cases

Read the latter end of this post for an explanation:

http://forums.moneysavingexpert.com/showpost.php?p=50616079&postcount=9

An upgrade may contain better features, but it doesn, by default require that all existing features of a contract remain.

visidigi

topcatk wrote: »

Thank you Visidigi.

Sorry I don't understand the abbreviation LBA....

and I am curious to understand fully your view that S75 wouldn't apply since:

We had a contract with a Spa to provide a service; they provided that service for 5 months and then tell us they will not continue to provide that service (by letter). They state by letter that there has obviously been a misunderstanding and offer us a refund, but with conditions. We believe that refund should be unconditional but the spa refuse to pay us an unconditional refund. Therefore we have sought a refund from MBNA, as the service was purchased on a credit card and we believe that the credit card company is jointly liable under Section 75 of the Consumer Credit Act. We can clearly show breach and misrepresentation, which are the 2 conditions either which satisfy a claim under the Consumer Credit Act.

I really appreciate your view on this; understanding how others view the situation allows me to strengthen my argument, in the areas of perceived weakness.

Thank you all.

K

I didn't say it wouldn't apply, what I said was its unlikely to be successful in a reasonable time frame and its more likely the LBA / Court route will yield you results.

The problem is your contract doesn't state the treatments are included, they were performed by mistake for a period - the real issue is the misselling of an upgrade in your eyes, but in MBNA's eyes, in the letter of the contract the gym are fulfilling what you signed up to.

The court route (if you even get that far) is a platform for discussion and explanation, much more fleixble for your needs and circumstance, whereas the s75 route is someone in a bank and someone in a gym trying to figure out if anything was done incorrectly.

bris

This is one for the courts to decide, there is always two sides to the story, with the gym defending the claim and having the paperwork to back it up, MBNA will not pay out.
The judge may see it differently and if the claim goes your way the gym has no choice but to pay up, if they don't then the CC would have to, as you have would have the court victory which shows the breach.
It is reasonably cheap to start the court action, and the fees can be added to the claim.
The gym could have a defence by saying the treatments were given by mistake and should never have been included in the new package, it could go either way.