Section 75 Advice Required

JohnnySpice

Hi Guys,

I was wondering if you would be able to give me a little advice on behalf of my mother and father.

Early last year, my father paid £9000 using his MBNA credit card to a company known as Incentive Leisure Ltd. This was a company who offered to 'take' my parents timeshare away from them as at the time, they felt they were completely locked in.

Incentive Leisure went into liquidation before delivering on anything they claimed. Further research from myself points to the whole company being a scam, with many people affected.

We had launched a section 75 claim against MBNA, whom my father used to pay Incentive Leisure £9000 with the hope of ridding themselves of their timeshare.

The only problem was, that according to MBNA, section 75 only deals with breaches of a contract.

In my mother and father's circumstances, IL took their signed contract and promised to send a countersigned copy back. Before they could, ILG went into liquidation and were nowhere to be found afterwards.

After a lengthy battle, many letters and getting the financial ombudsmen involved, MBNA have offered to pay us a gesture of goodwill of nearly £3000 on the condition that this is non-negotiable and that we have to return the money if the liquidators ever give us anything.

I was wondering if anyone else has been in this situation, or has any advice of what to do next? Do my parents have a case to reclaim the entire amount?

Any advice would be greatly appreciated.

Kind regards,

John

thenudeone

The contract which you are claiming was breached was the contract with Incentive Leisure. The contract for the timeshare isn't relevant to your claim because it wasn't paid by credit card (AFAIK).

What documentation do you have from incentive leisure about what your parents were buying when they paid £9k?

If Incentive Leisure agreed to do something specific in exchange for £9, yet they haven't done it, and this can be proved, then there is a reasonable case for a s75 claim.

However I suspect that what you'll find when you look carefully at the paperwork is that they probably promised was to discuss, negotiate, advise, or review.

This is how the debt write-off scammers work. You pay them ££££ to "review your case" or "make a claim". They review your case and advise you that you don't have a good chance of a claim (or make a claim which is rejected). You ask for a refund. They say - No, we've done what you paid us for. We reviewed your case (or made a claim and it was unsuccessful).

So they need to dig out all the paperwork.

For £9k it could be worth involving a solicitor, IMO.

chattychappy

Agree.

Just one point though - s75 doesn't just cover breach of contract but it covers misrepresentation too. This is a legal concept, but essentially if the company made false representations which induced your father to agree to the contract, then he could be covered. This could be claims about the company (eg who they are, previous successes etc) or the state of their finances. But it must be more than mere advertising puff.

So any letters/emails exchanged prior tot the deal could be useful here. Note that contracts sometimes exclude prior represenations, but that these clauses are not always successful.

meer53

Did this company ever provide your parents with any offers for their timeshare (i'm assuming they were a timeshare resale company) ? If they did, even if your parents declined the offer, it could be deemed that they have provided the service they offered.

Or did ILG offer to buy the timeshare from your parents ? What have MBNA actually done, and how did they say they had come up with the figure of 3k ?

yangptangkipperbang

MBNA are trying it on. When I made a S75 claim against them: (airline went bust)
1. They denied it was anything to do with them.
2. Then said that "Mastercard rules" overrode UK Law.

They paid up when I threatened with Legal action........

*LolaB*

yangptangkipperbang wrote: »

MBNA are trying it on. When I made a S75 claim against them: (airline went bust)
1. They denied it was anything to do with them.
2. Then said that "Mastercard rules" overrode UK Law.

They paid up when I threatened with Legal action........

Probably a more complex situation than your explanation I'd imagine

dalesrider

yangptangkipperbang wrote: »

MBNA are trying it on. When I made a S75 claim against them: (airline went bust)
1. They denied it was anything to do with them.
2. Then said that "Mastercard rules" overrode UK Law.

They paid up when I threatened with Legal action........

But you do not need to make a S75 in that case as chargeback rites apply.

yangptangkipperbang

dalesrider wrote: »

But you do not need to make a S75 in that case as chargeback rites apply.

S75 is part of British Law - the Chargeback system is operated by the finance houses as a "service" to their customers. It has no Legal backing whatsoever and the finance house can choose not to repay under this scheme at its own discretion.
This is probably why, in my case, I was told that "Mastercard rules" applied.

meer53

Card issuers will usually action chargebacks first if they are applicable before considering S75.

When an airline goes bust, chargeback will be the first option as it's a simple non receipt of services scenario.

melbell

chattychappy wrote: »

Agree.

Just one point though - s75 doesn't just cover breach of contract but it covers misrepresentation too.

I think you will find thats Section 56...

chattychappy

yangptangkipperbang wrote: »

S75 is part of British Law - the Chargeback system is operated by the finance houses as a "service" to their customers. It has no Legal backing whatsoever and the finance house can choose not to repay under this scheme at its own discretion.

Agree with the gist, but the FOS did find given the existence of the scheme, it would be unfair of providers not to use it to assist a cardholder and that CCs do have a duty to treat customers fairly in this context. So it is perhaps "soft" law (at best) now.

melbell wrote: »

I think you will find thats Section 56...

Well, I did mean s75 which which makes a CC jointly/severally liable for breach/misrep by the merchant.

S75 Liability of creditor for breaches by supplier.(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. [my emphasis]

(Not sure if s56 would have application here, but if it does, I can't see what it would add. Willing to stand corrected/further educated!)