Sect 75 or charge back?

kererra

Is there a difference and can the bank choose which to pursue.
We bought a car on a Bank mastercard after a few days the vehicle threw up some serious faults firstly the front wheel bearings both were replaced under a " warranty" the dealer told us to pay first and would be refunded ( we stay over 100 miles from him) 6 weeks later we are still waiting however the car has since developed more serious faults which were mentioned on it last MOT which caused a failure, we were told not to use the car by an independent garage who inspected it for us and by the Bank.
The dealer is ignoring us so I sent a letter to the bank under sect 75, the bank has made us jump hoops with receipts, sending the car for an independent assessment etc all of which state the car is dangerous, when I say hoops the information has been asked for independently rather than all at once. anyway with a very expensive ornament in the drive (£3000 plus receipts for another £700) I have been told verbally, as the bank have never acknowledged my letter apart from with a phone call, that they have done a charge back to the retailer for £3000.
Do the banks have the right to do this and ignore the sect 75? which was sent over 4 weeks ago giving them 14 days

meer53

You'll probably find they'll try a chargeback first, then go down the Section 75 route if that fails. They can try both. Easier for them if the chargeback works.

chattychappy

s75 is what gives you, the CC holder extra protection. It makes the CC jointly liable for any breach of contract (or misrepresentation). They stand equal with the merchant. You do not have to exhaust remedies with the merchant before going after the CC, though typically that makes practical sense. Note - the liability can exceed the value of the CC transaction. This is because damages in contract law can often exceed the price paid for goods/services and a cardholder might have only part-paid by CC. S75 can be very nasty for CCs - they have to pay out regardless of whether they can recover from the merchant.

Chargeback is the mechanism through which the a CC can recover monies from the merchant. It doesn't normally give the cardholder any direct rights. (Though the FOS has said it would expect a CC to assist a cardholder in a situation where chargeback is available.)

So putting the two together, a CC is more likely to "help" if they can finance a refund via a chargeback through the visa/mastercard network. They will have to comply with certain conditions to do this and I'm pretty sure they can't chargeback more than the amount of the original transaction (willing to stand corrected).

SO, you are correct to assert your s75 rights. Whether the CC can recover from the merchant is an internal matter for them (though as I say, they are more likely to refund you if they can chargeback). That is why I wrote "help" in inverted commas above. They are not really helping - s75 makes them as responsible as the merchant for performance so it is a contractual obligation for them to perform. If you think your reasonable costs are higher than the price paid, then put this in your claim too. Point out you have cooperated thus far. Since they are jointly liable with the merchant, you could suggest that if they require anymore reports/investigations then they should be communicating with the merchant rather than expecting you to do this. Whatever you claim, you can always compromise downwards later.

Ultimately if they don't pay out, you can go to the FOS or issue a claim in the county court (warn them first). I'm rather in favour of the small claim route these days, but hopefully it won't come to that.

dalesrider

kererra wrote: »

Is there a difference and can the bank choose which to pursue.
The dealer is ignoring us so I sent a letter to the bank under sect 75, the bank has made us jump hoops with receipts, sending the car for an independent assessment etc all of which state the car is dangerous, when I say hoops the information has been asked for independently rather than all at once. anyway with a very expensive ornament in the drive (£3000 plus receipts for another £700)

I have been told verbally, as the bank have never acknowledged my letter apart from with a phone call, that they have done a charge back to the retailer for £3000.

Do the banks have the right to do this and ignore the sect 75? which was sent over 4 weeks ago giving them 14 days

1st thing I would ask is why did you not go to trading standards and utilize your LEGAL right to reject the car. As unfit for purpose.

Who are the experts in dealing with these cases?
So Barclaycard have the right to choose the best way forward to reclaim the money.
And the chargeback is by far the quickest.

They have acknowledged your letter, by calling you and advising you what was required to take your case forward. Which clearly you have done, or the chargeback would not have been actioned.
Can you imagine how much longer it would be to get a result if everything was done via letter.

Also section 75 is not a guaranteed way of getting your money back.
As you are also JOINTLY LIABLE, you could be asked to take this matter via the small claims court. As are your legal rights.....
As well as it can take months to be sorted.
Section 75 requires YOU to prove breech of contract or missrepresentation.
It is not simply, just a case of saying they are jointly liable and getting your money back.

Sadly sites like this one and many other places give people incorrect advice.
Nothing worse than having to talk to someone has been armed with incorrect information and like you simply said SECTION 75. Instead of explaining your issue and let the experts talk you through the best way to progress your case.

chattychappy

dalesrider wrote: »

1st thing I would ask is why did you not go to trading standards and utilize your LEGAL right to reject the car. As unfit for purpose.

Who are the experts in dealing with these cases?

Fair point about rejection, but we seem to be beyond that now.

Alas, not always Trading Standards give good expert advice. It can often be very dodgy coming from people who are not legally qualified. They advised a friend of mine to pay up to a trader saying she had no legal basis to withhold payment. I disagreed and wrote a letter to TS on her behalf. Got a bizarre reply. So told her not to pay and not be intimidated and I'd go to court and represent her if necessary. She did get sued. The judge dismissed the claim for exactly the grounds I had argued. TS are worth calling, but the only true "expert" advice would be from a solicitor. (And not all of those are any good.)

dalesrider wrote: »

So Barclaycard have the right to choose the best way forward to reclaim the money.
And the chargeback is by far the quickest.

Well, Barclaycard have a right to decide whether they will reclaim from the merchant. But that is independent of any right the OP has to go against Barclaycard under S75. Outside of S75, it is a matter of discretion whether Barclaycard entertain the claim and on what basis.

dalesrider wrote: »

Can you imagine how much longer it would be to get a result if everything was done via letter.

Disagree - there comes a time when you must put stuff in writing. The OP must proceed on the basis that this could end up in court/FOS. By all means cut through delays and deal on the phone. But all too often people get stalled this way. The OP needs to set things out in writing. Last week I settled on behalf of a client who really shouldn't have had to pay up at all. (He got sued.) Why? Because so much resolved about who said what and when. The claimant had sent letters to which my client had phoned back in response. The judge was siding with the claimant who had evidenced the matter and subsequent dispute with writing.

dalesrider wrote: »

Also section 75 is not a guaranteed way of getting your money back.
As you are also JOINTLY LIABLE, you could be asked to take this matter via the small claims court. As are your legal rights.....
As well as it can take months to be sorted.
Section 75 requires YOU to prove breech of contract or missrepresentation.
It is not simply, just a case of saying they are jointly liable and getting your money back.

What do you mean "you are also JOINTLY LIABLE"? The OP is a party to the contract and not jointly liable with anyone. The CC is jointly liable with the merchant.

But yes, the OP has to prove breach of contract or misrep, just as if he was suing a trader and no CC was involved. Standard of proof is balance of probabilities.

kererra

dalesrider wrote: »

1st thing I would ask is why did you not go to trading standards and utilize your LEGAL right to reject the car. As unfit for purpose.

Who are the experts in dealing with these cases?
So Barclaycard have the right to choose the best way forward to reclaim the money.
And the chargeback is by far the quickest.

They have acknowledged your letter, by calling you and advising you what was required to take your case forward. Which clearly you have done, or the chargeback would not have been actioned.
Can you imagine how much longer it would be to get a result if everything was done via letter.

Also section 75 is not a guaranteed way of getting your money back.
As you are also JOINTLY LIABLE, you could be asked to take this matter via the small claims court. As are your legal rights.....
As well as it can take months to be sorted.
Section 75 requires YOU to prove breech of contract or missrepresentation.
It is not simply, just a case of saying they are jointly liable and getting your money back.

Sadly sites like this one and many other places give people incorrect advice.
Nothing worse than having to talk to someone has been armed with incorrect information and like you simply said SECTION 75. Instead of explaining your issue and let the experts talk you through the best way to progress your case.

Really!!!! is there another Sect 75 dealing with credit cards? They have acknowledged me by telephone with three different scenarios, I contacted the FOS, sorry financial Ombudsman Service who told me that I should have had an acknowledgement in writing
As for proving a breach etc, I have the last MOT on which it failed on the same points an independent garage picked up who were unaware of the previous failure, anyway proving it is my problem I asked for advice regarding under Sect 75 procedure of which I am extremely grateful.

dalesrider

kererra wrote: »

They have acknowledged me by telephone with three different scenarios, I contacted the FOS, sorry financial Ombudsman Service who told me that I should have had an acknowledgement in writing

As for proving a breach etc, I have the last MOT on which it failed on the same points an independent garage picked up who were unaware of the previous failure, anyway proving it is my problem I asked for advice regarding under Sect 75 procedure of which I am extremely grateful.

You will get a acknowledgement of full and final settlement if it goes via Section 75.
I would guess that within the 1st call they mentioned that they were calling in reply to your letter. As such, why do you need a written response. All calls will be recorded and if any complaint is raised they will be avaiable to be reviewed.
Did you at any point ask for a written response to your letter?

TBH. I would let B'card deal with it in the way they have. At the end of the day if the c/b fails you still have section 75 to fallback on.
Unlike the other way, where there are given timescales to action a c/b. Which is why some retailers will stall a lot as they know the time limits.

Not related to your claim. But I would be reporting the MOT tester. assume you got a full 12 months when you bought the car. If they have failed to pick up on the previous failed points, or is this a known issue with the car and the parts were replaced and have failed again?

kererra

dalesrider wrote: »

You will get a acknowledgement of full and final settlement if it goes via Section 75.
I would guess that within the 1st call they mentioned that they were calling in reply to your letter. As such, why do you need a written response. All calls will be recorded and if any complaint is raised they will be avaiable to be reviewed.
Did you at any point ask for a written response to your letter?

TBH. I would let B'card deal with it in the way they have. At the end of the day if the c/b fails you still have section 75 to fallback on.
Unlike the other way, where there are given timescales to action a c/b. Which is why some retailers will stall a lot as they know the time limits.

Not related to your claim. But I would be reporting the MOT tester. assume you got a full 12 months when you bought the car. If they have failed to pick up on the previous failed points, or is this a known issue with the car and the parts were replaced and have failed again?

The financial Ombudsman service told me to ensure I had a written acknowledgment!!
anyway thanks to all it has been settled in full.:)