Section 75 Fun - Merchant Pursuing Me?

Bogalot

cooltt wrote: »

I stopped reading and had a good laugh after this part.

^^ Is the response of someone who cannot provide an informed response.

eskbanker

I'm confused here! Surely if a successful s75 claim still leaves the merchant with a legitimate basis on which to pursue the customer then every time a s75 claim went against any merchant they'd be able to claim non-payment, effectively nullifying the whole process?

Perhaps OP should simply pay up by credit card again, then resubmit a new s75 claim for the new payment, and round the houses everyone goes ad infinitum?

Bogalot

eskbanker wrote: »

I'm confused here! Surely if a successful s75 claim still leaves the merchant with a legitimate basis on which to pursue the customer then every time a s75 claim went against any merchant they'd be able to claim non-payment, effectively nullifying the whole process?

Perhaps OP should simply pay up by credit card again, then resubmit a new s75 claim for the new payment, and round the houses everyone goes ad infinitum?

That's an interesting (and valid) viewpoint!

It's true that the lender and the retailer may take different views as to whether the buyer is eligible for a refund. Your scenario is plausible.

whizzbee

eskbanker - I was wondering that too!? If I'd bought a car, the car failed and I claimed under S75 then there must be something to stop the dealer then coming back and claiming there's a balance outstanding, or is this a weird loophole!?

Worst case I guess I'll have to write to them and set out the whole case again but I'm loathe to do that unless I have to since their handling last time was so terrible...

Paying again is tempting but I'm not sure I like the risk!

unforeseen

The fact that the CC company have taken money off the merchant makes me think that this was a chargeback rather than a S75 claim.

Surely a S75 claim stops at the CC company as they are jointly liable rather than going back to the merchant and taking money. That makes a mockery of 'jointly liable'. To me that means that the CC company would then have to take some legal action against the merchant to reclaim their payout.

I can understand why the company is now gunning for the OP

whizzbee

unforeseen - that's interesting, thanks. I guess I can check this with my card issuer.

If it does turn out that they did a chargeback instead of S75 (because of the 'missing refund' classification) would I be able to ask them to change it, under 'misrepresentation' - or would I have to pay again and then start a new claim!? (I'll ask them this as well)

bigadaj

I thought this was fairly obviously a chargeback rather than a section 75; the money was taken from the comoany in question whereas a section 75 claim would have been fully funded by the bank.

eddddy

eskbanker wrote: »

I'm confused here! Surely if a successful s75 claim still leaves the merchant with a legitimate basis on which to pursue the customer then every time a s75 claim went against any merchant they'd be able to claim non-payment, effectively nullifying the whole process?

The merchant isn't nullifying anything, they are disputing that they breached the contract.

You could look at it this way...

- The consumer says a breach of contract occurred
- The bank agrees with the consumer and refunds the money
- The merchant disagrees, so decides to take the consumer to court

- The court decides whether a breach of contract actaully occurred

eskbanker wrote: »

Perhaps OP should simply pay up by credit card again, then resubmit a new s75 claim for the new payment, and round the houses everyone goes ad infinitum?

And of course, that would be fraud - i.e. a criminal offence. It would be making a payment that you do not intend to honour.

eddddy

bigadaj wrote: »

I thought this was fairly obviously a chargeback rather than a section 75; the money was taken from the comoany in question whereas a section 75 claim would have been fully funded by the bank.

Banks can claim back any s75 losses back from the merchant (as appears to have happened here).

But if the bank can't get s75 losses back from the merchant, then the bank suffers the loss. (e.g. If the merchant has gone bust)


That's what makes s75 different from chargeback. If the bank can't get funds back from the merchant, then chargeback fails. (e.g. If the merchant has gone bust)

chattychappy

This is my take.

First of all it is a principally a matter of contract law which comprises legislation and common law.

The OP contracted with the boiler people to have work done. Through S75, the CC is jointly liable in the case of breach of contract.

The OP claims things went wrong and that a refund was promised from the boiler people. No doubt this could be disputed and perhaps the OP has evidence to back his/her claim.

Whereas S75 is a level of protection offered to cardholders by UK legislation, chargeback is a scheme created by the credit card networks whereby they can recover monies from merchants and refund to cardholders. Chargeback doesn't directly offer any rights to cardholders, though the FOS has said that given the existance of the scheme, it would be unfair for a CC not to use the scheme to assist cardholders when appropriate.

In this case, it appears the cardholder complained to the CC and they refunded via the chargeback scheme. This is not incompatible with S75 - the CC met its S75 obligation by refunding the OP and financed this by recovering from the merchant through chargeback.

First off, the bank is not "out of it". If it came to litigation, the CC could still be a party. If the boiler blew up tomorrow, the CC could be held liable for an amount far in excess of the original transaction.

My view is that boiler company is entitled to claim from the OP for the missing money. The OP paid by credit card and then took steps to reverse the payment. The CC isn't in a position to make a judgement as to whether the OP's story is correct or not. They heard enough to satisfy themselves that the conditions for a chargeback had been met. Meanwhile the OP contracted with the boiler people to pay a certain sum for the work to be done. They don't have the money - hence the claim on the OP.

If the boiler company makes a claim on the OP, then it will have to prove (on the balance of probabilities) that the monies are owed. The OP will have a chance to defend. The court would consider evidence as to what was agreed and what happened. If the job was eventually done, then I would expect the court to start by ordering the OP to pay the full price but then reduce this by any reasonable losses the OP can show he/she has suffered (time off work, time on the phone etc etc). The OP might need to do this by way of counterclaim. It is unlikely that a promise of a refund (even if evidenced) would carry much weight except as evidence of an admission of things going wrong. These sorts of discounts/promises are generally unenforceable without "consideration" - eg as part of an agreed settlement or in return for something else.

In practice, most cases are settled before a hearing by way of mediation or the parties simply agreeing something. And of course, we don't know if the boiler people will be bothered to go any further with this.

My practical advice to the OP would be:
1) keep the dialogue going, but ask them to put their story in writing.
2) whether or not they do (1), put your side in writing.
3) if you've had valuable use out of their work, try to "do a deal" - but agree it in writing (email is OK) before paying anything over.

Congratulations to anyone who read all of the above!!