Section 75 - fails to support consumer

privet21

I've had no success with section 75 even though the Financial Ombudsman Service (FOS) confirmed I was covered. I along with hundreds of others have been a victim of a time share scam. I have identified more than 12 misrepresentations in my claim against Barclays Partner Finance and having taken legal advice and been through the FOS who would not up hold my claim. I am still expected to pay for a product that was never what it was sold as, and have never used or benefited from any of the product. After 5 years I am now free of membership of the timeshare but still expected to pay the initial purchase price. I have contacted the Office of Fair Trading, and many other organisations and no one seems willing to help. I am being pursued by Debt collectors who will not accept my solicitors insistence that we should not have to pay. They have put a default on my otherwise unblemished credit rating which I find most unfair. Worst of all no one seems to be able to help stop this from going on. I will be out of pocket to the tune of around £10,000 plus legal fees of £2500 to date. The law states in section 75 what we are entitled to as a consumer and I've followed all the advice given to no avail. I simply want my money refunded and my credit rating resumed to its rightful state. I am now at the end of my tether fighting this injustice.Is there any one who can help as I am exhausted with trawling through forums and trying to fight this.

chattychappy

Has your solicitor recommended suing? If not, why not? What was the FOS reasoning?

privet21

yes we have discussed this but he is reluctant to pursue mainly because like my self he is disappointed that the FOS did not support the claim and fears we therefore may not get support through the court. I am now worried about further fees and costs. and unless I can be assured that my case can be successful I am reluctant now to proceed.

chattychappy

And what was the FOS reasoning?

I don't want to sound harsh, but you refer to the OFT/courts/FOS, "helping" or "supporting". In fact, the only person there to help you is your solicitor - s/he is working for you. It is a legal matter and the other entities are not there to help you any more than they are there to help Barclays.They are their to form a view as to whether you have the legal basis for a claim and adjudicate.

If the FOS has come to a logical decision, then indeed a court might take the same view. But a court isn't bound to. Your solicitor should be able to assess the prospect of success based on the legal merits of the case. He doesn't sound confident - and fees/costs are a real issue.

Ultimately if the debt stands, then indeed it will go onto your credit record however unjust that seems.

grumbler

Nowhere does it say that your credit provider has to *support* you.
What it says is that it is jointly liable with the goods/services supplier, i.e. you can sue both (or either?). For the credit provider S75 is a burden. You have not asked them when you had thrown their money into some doubtful venture and now you want to hold them responsible for your actions. For this reason they are likely to be defensive, not supporting.

In comlex cases like this one, it's a court matter and IMO FOS has nothing to do with this. I think your solicitor (typically) just used this opportunity to rob you. If you believe that you are right and your solicitor confirms this, the case had to be taken to a court a long time ago.

privet21

Reasons FOS gave were insufficient evidence saying they could not prove that my recollection of the verbal communication between myself and the timeshare company could be proven but says they have no reason to doubt my recollection of the events. Says I signed agreement and a confirmation of understanding at the time of purchase that proves that I accepted their terms. Says they cannot prove I was not aware of what I was signing up to.- At the time you are pressurised into agreeing and signing what ever they put in front of you while presented with large amounts of documents and reassured by slick sales representatives that this was an opportunity of a life time! Foolish I know in retrospect !! I had emails from rep that confirmed they had changed their mind about some of the offers which the ombudsman did not seem to acknowledge. Also had a witness statement from a friend who attended one presentation where we were promised all our money back for trial membership if we became full members which we did not receive. FOS ignored this. .

Hominu

So ignoring the FOS, what did your solicitor say when you presented all this information to them? Did they also consider that it was insufficient evidence?

chattychappy

privet21 wrote: »

I will be out of pocket to the tune of around £10,000 plus legal fees of £2500 to date.

By the way, the Small Claim limit has just been increased to £10,000. You could have a go yourself. (You can always "have a go yourself" but the advantage of Small Claim is that costs are more contained and some of the procedures are simplified.)

Where you've signed a written agreement - and particularly where it excludes oral representations - it is difficult to overcome what you signed up for. But judges know how these things work and will have a tendency to believe witness statements/emails unless contrary evidence is presented.

privet21

Hominu - Solicitor was confident we had a case from evidence provided.

privet21

small claims worth considering. I'll take a look at how I might proceed with this.

chattychappy

If you go DIY, you must be emotionally detached from this. The judge will rule according to law, not because he feels sorry for your being ripped off (though the emotion of the moment can help).

S75 makes the finance company jointly and severally liable for:
1) breach of contract
2) misrepresentation

Take care to understand what these mean in a legal sense. Each has it's own legal version. A "bluffers" type guide to contract law for law students would help.

Also look at how to compose a claim. You don't have to use legal language, but it does need to be clear and concise. If you have two different ways to argue a point, that's fine. You can put both down. Do some research on how to fill in the claim form. Assuming the other side defends, then they have to write a defence so you have a chance to settle/meet half way etc. Or at least there are no surprises in a hearing.

When I've been in a court for small claim, the judge has always been very friendly towards any unrepresented litigants. They are pro-active in trying to understand the story and ascertain the facts. But you are responsible for setting out the basis of your claim - it's not the judge's responsibility to find a way to help you get your money.

Once you're ready with the claim, tell the parties (you should sue both the finance company and the merchant) that you intend to sue and broadly on what grounds but that you welcome any alternative proposal they have to settle the matter. Give them a couple of weeks at least. Assuming you can't do a deal, then go ahead.

All this pre-supposes that we're in the ambit s75.

Usually you have 6 years to issue the claim form from date of breach/loss.

For lawyers, there is nothing more fearsome in court than the well-prepared litigant in person with an arguable case.