Charge back rejected by TSB

molerat

There are some interesting articles available via Google reference unregulated loans. The get out would seem that the person taking out the loan was bordering on fraud by stating it was a business loan (via a tick box statement).

mystique81

eskbanker wrote: »

Their ability (or not) to recover funds from the fitness company is their issue, not yours - it doesn't (legally) affect your rights to claim against them, as section 75 holds the creditor equally liable as the supplier (i.e. not allowing them to act solely as an intermediary).

Well, they would say that, wouldn't they?! Still doesn't stop you from at least trying to escalate your complaint to FOS if the finance company doesn't refund you....

Perhaps it gives you some comfort to know that others are in the same boat, but in your shoes I'd concentrate on getting my money back rather than being particularly interested in the scale of any scam.

What detail do you have about exactly how they secured refunds, and from whom, as this is obviously the important bit?

I am being told by my bank that I don't have the same rights (the right to claim under section 75 as I used a debit card , not a credit card. There are no details as to how they secured refunds and from whom, the agreement only says that this loan is unsecured and
"The loan must be used to finance the purchase of the goods/services specified in the PCI. Those purchases are not covered by sec on 75 of the Consumer Credit Act 1974. This means that you only have a right to sue the supplier of the goods or services, if the supplier of the goods or services fails to carry out its obligations under its contract with you (for example if the goods are not delivered or they are not of satisfactory quality) or if the supplier has persuaded you to enter into the contract on the basis of incorrect information. We will not be responsible in any way for the goods or services supplied to you and the Financial Ombudsman Service will not have jurisdiction to review
any complaint you may raise in relation to this agreement, or the goods or services financed by it."

eskbanker

mystique81 wrote: »

I am being told by my bank that I don't have the same rights (the right to claim under section 75 as I used a debit card , not a credit card.

I think it's already been established in earlier posts that there isn't any scope to make a claim against TSB, so I'd ignore them and concentrate on the obligations of the finance company.

mystique81 wrote: »

There are no details as to how they secured refunds and from whom

Is this something that you can investigate further?

mystique81 wrote: »

the agreement only says that this loan is unsecured

In itself this isn't an issue, it's perfectly normal to have an unsecured but regulated loan.

mystique81 wrote: »

"The loan must be used to finance the purchase of the goods/services specified in the PCI. Those purchases are not covered by sec on 75 of the Consumer Credit Act 1974. This means that you only have a right to sue the supplier of the goods or services, if the supplier of the goods or services fails to carry out its obligations under its contract with you (for example if the goods are not delivered or they are not of satisfactory quality) or if the supplier has persuaded you to enter into the contract on the basis of incorrect information. We will not be responsible in any way for the goods or services supplied to you and the Financial Ombudsman Service will not have jurisdiction to review any complaint you may raise in relation to this agreement, or the goods or services financed by it."

I'd agree with Ergates's earlier post - just because they state this doesn't mean that it's legally valid to do so, so the enforceability of such statements is very much open to question, in that they can't just opt out of statutory provisions!

mystique81

Thank you all, I will explore all my options that you have suggested so far. Will come back if I don't get anywhere.

antrobus

I would argue that as far as Omni Capital Retail Finance are concerned, if it is a debtor-creditor-supplier agreement, them s75 applies.

I'm not sure that 'regulation' comes into it, if only because nobody was regulated in 1974, so the Consumer Credit Act makes no mention of it.

eskbanker

antrobus wrote: »

I'm not sure that 'regulation' comes into it, if only because nobody was regulated in 1974, so the Consumer Credit Act makes no mention of it.

It does make plenty of mention of regulation in the context of such agreements but the actual intended meaning is up for debate, as regulations are obviously somewhat different now from 1974!

CCA s75 applies "under a debtor-creditor-supplier agreement falling within section 12(b) or (c)", where there is reference to "A debtor-creditor-supplier agreement is a regulated consumer credit agreement....".

Section 8 clarifies that "A consumer credit agreement is a regulated credit agreement within the meaning of this Act if it—
(a)is a regulated credit agreement for the purposes of Chapter 14A of Part 2 of the Regulated Activities Order...." but I lost the trail there, as 'Regulated Activities Order' would currently seem to mean The Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 [obviously not in place in 1974] but this doesn't have a Chapter 14A! Any ideas?

18cc

I would consider going back to TSB for this reason

tsb have said you are not entitled to a chargeback because you have received the services of the finance company. however because it was a credit arrangement then the finance company are equally liable as if they were the fitness company themselves under section 75

therefore since you have not received the services of the fitness company you are holding the finance company jointly liable and therefore TSB should chargeback the money

hope that makes sense

Terry_Towelling

IanManc wrote: »

The fitness company is in liquidation.

You cannot do a chargeback against an account which is in the control of liquidators, because secured creditors and HMRC have a priority claim on any assets in the account.

Sorry, IanManc but that is not correct. Chargebacks can be done where a company is in liquidation. Your card issuer raises a chargeback to the retailer's bankers and it is then their problem as to how they go about collecting that debt from the retailer/liquidator.


The only worry for the cardholder is whether a chargeback right exists for their particular dispute.

Terry_Towelling

mystique81 wrote: »

The total cost of the course was £399.00. I paid £99.75 deposit, then first payment was just over £25.02and from then on payments are monthly at £24.95. The fitness company has gone into liquidation so you cannot get what you paid for any more - yes this is correct.

I paid to obtain certificate for Level 2 in Fitness instructing and Level 3 Personal training. Yes I have 4 months worth of the course. We had 1 year to complete both but in May we were advised the fitness company had gone into voluntary liquidation and we had until 1 july to submit our work. Then mid June we were told that they are no longer accept any more works, so basically we didn't have an option to complete our courses.

This thread is getting a bit messy.

Right, so was your payment of £99.75 made to the finance company by debit card or to the fitness company by debit card? - you still haven't made that clear.

If it was to the fitness company then there is the possibility of a Chargeback on the debit card transaction only - however, you have had 4 months of the course, so any chargeback has to be for the unused portion of the course. Sadly, 4 months comes to more than £99.75, which means you will have a hard time convincing TSB to raise a Chargeback as you've had more of the course than the £99.75 deposit will have covered.

If the £99.75 was paid to the finance company as a first instalment of your loan then you have no chargeback rights at all and everything will have to be handled as a potential S75 claim.

As far as this is concerned, your claim is not with TSB as they haven't financed anything. Your claim under S75 would be against the finance company. So, did you arrange the finance as part of the contract with the fitness company, or did you just take out a 'random' loan and use it to pay the fitness company?

If the loan was 'facilitated' by the fitness company, you probably have a S75 claim against the finance company. If it was a 'random' loan you probably don't.

eskbanker

IanManc wrote: »

In relation to enforceability, it used to be very common for contracts to contain clauses which purported to exclude various mandatory statutory provisions. Although it is less so nowadays due to enforcement action, an ordinary customer should never take an attempt to exclude a statutory protection at face value.

In a contract people are able to sign away some of their rights, but not all of them. For example you can never exclude liability for personal injury through negligence, or liability for complete non-performance of the contract.

The OP needs proper specialist consumer credit advice from a Law Centre - if there is one still open anywhere nearby - or the CAB, who can sit down with the OP and go through the contract line by line.

Agreed, I'm no lawyer so am just offering opinions from a layman's perspective!

I'd have thought that the essentially tripartite nature of the CCA s75 provisions makes it difficult for the creditor to unilaterally declare that they don't apply, as this would theoretically park more obligation with the supplier.

I also don't see any evidence (from what OP has posted) that the finance company has actually offered any concrete reason why they assert that the loan is unregulated and/or why the consumer has no s75 rights against them....