Help for TFS Loan reclaim - they turned down

amylou2021

Hi all, 
I am after some advice on how to proceed, or if i can continue with my claim. I have only recently discovered (thanks to this wonderful website), that i can claim back my interest from my guarantor loans. I believe they didn't check affordability when i took out the loan way back.
The loan provider was TFS Loans, i got a £5000 loan in jan 2015, actually finished the loan in jan 2020. It was hard but glad to be done with it.
I submitted a claim via Resolver and followed the steps laid out by Martin, TFS got back to me quickly and have dismissed my claim, and sent this response:

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"I am sorry to inform you that I am unable to process your complaint, Financial Ombudsman guidance states that a complaint has to be lodged within 6 years of the event your complaint refers to.
Due to the fact you are complaining about the affordability assessment and application process, which was carried out over 6 years ago, I will not be able to investigate this complaint for you.
The start date of your loan was 29th January 2015.
The rules explain that a complaint must be referred to The Financial Ombudsman Service within six years of the date the event happened, or if later within three years from the date you ought reasonably to have become aware you could complain.
I have carefully considered whether your complaint was made within the time limit set out above. I am satisfied this complaint falls outside of the time limits as it was referred to us too late.
Please note in terms of our complaints procedure this is our final response. If you are not satisfied with the final response or the time we have taken to respond, you have the right to refer your complaint to the Financial Ombudsman Service (FOS) free of charge.
The Ombudsman might not be able to consider your complaint if:
· what you’re complaining about happened more than six years ago and,
· you are complaining more than three years after you realised (or should have realised) that there was a problem.
We think that your complaint was made outside of these time limits but this is a matter for the Ombudsman to decide. If the Ombudsman agrees with us, they will not have our permission to consider your complaint and so will only be able to do so in very limited circumstances (see below).
If you do decide to refer your complaint to the Ombudsman you must do so within six months of the date of this letter.
If you do not refer your complaint to the Ombudsman within six months of the date of this letter, the Ombudsman will not have our permission to consider your complaint and so will only be able to do so in very limited circumstances.
The very limited circumstances referred to above include, where the Ombudsman believes that the delay was as a result of exceptional circumstances.
You can visit its website or alternatively write to them at: ......."
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So what's the best way to respond? Can i move forward? what are my rights here?
Any help on next steps will be much appreiciated.
Cheers
Amy

[Deleted User]

If they have correctly applied the time bar, which they appear to have done, then you have no response, you cannot move forward and you have no rights. 
At best you could ask the FOS to check the time bar is correct but a correctly applied time bar under the 6 and 3 year rule is the end of any complaint

matt0305

The FOS regularly looks into complaints that relate to loans more than 6 years old. TFS are telling you that in the hope that you accept it and go away. If you have a valid complaint then escalate it to the FOS.

[Deleted User]

matt0305 said:

The FOS regularly looks into complaints that relate to loans more than 6 years old. TFS are telling you that in the hope that you accept it and go away. If you have a valid complaint then escalate it to the FOS.

You're confusing two things and giving false information
The FOS may well look into loans older than 6 years if there are no time bars in place (such as a still active loan), however, if the firm is using the LEGAL time bar 3/6 year rules then the FOS cannot do anything, just like a firm cannot chase a statute barred debt. All that will happen with an FOS referral is a check that the time bar is correct and ask the firm if they will consider the complaint, if they refuse, that is it.

The DISP rules (see 2.8.2) state that you have 6 years from taking out a finance product and 3 years from when you knew, or could reasonably have known, you had cause for complaint (which includes paying off the loan, closing it etc) in order to raise a complaint. The FOS CANNOT override a legal time bar unless they consider there to be exceptional circumstances e.g. if you were incapacitated for a period which prevented raising a complaint - and even then it's talking a matter of months say for a bereavement, not years

matt0305

On paper you are correct. In practice you submit the complaint to the FOS and they will ask you why you are complaining about loans which are over 6 years old. In every single case I know about where loans were over 6 years, including one of my own, you can explain to the FOS that you only recently became awre that you were able to submit a complaint on the grounds of affordability. They will then look into it.

Telling the original poster that they have no rights and cannot move the complaint forward is false information. The information I have given is based on my own personal experience about a case which the FOS then upheld.

[Deleted User]

matt0305 said:

On paper you are correct. In practice you submit the complaint to the FOS and they will ask you why you are complaining about loans which are over 6 years old. In every single case I know about where loans were over 6 years, including one of my own, you can explain to the FOS that you only recently became awre that you were able to submit a complaint on the grounds of affordability. They will then look into it.

Telling the original poster that they have no rights and cannot move the complaint forward is false information. The information I have given is based on my own personal experience about a case which the FOS then upheld.

The 3 year rule doesn't work like that, you cannot just pick arbitrary dates and pretend that was when you knew you had reason to complain. In law things like closing the account triggers the 3 year rule
I have quoted (and linked to) the law which shows I am correct.
You are giving personal anecdotes as if they would somehow take precedent over the law. 

Please stop giving false information, I have linked the law, I suggest you read it.

matt0305

I have literally had a complaint go through the FOS which was upheld for loans over 6 years old. It is not helpful to tell the OP that they can't do anything when in reality they can. As I stated in my first post, if they have valid grounds for a complaint (including them only being aware of being able to investigate affordability recently, in line with the 3 year rule you state), then they absolutely can take the complaint forward. There is not a single piece of false information in any of my posts.

matt0305

htt ps: //debtcamel .co .uk/ fos-time-limits-payday-loan-refunds/
For the OP - you will find this useful (obviously remove the spaces as it appears I am too new to post links). If you legitimately have only found out in the last 3 years that you have valid grounds to complain then the information at the above link will be applicable. Farfetch thank you for quoting the relevant law - I suggest you read this to see how it has been applied.

[Deleted User]

matt0305 said:

htt ps: //debtcamel .co .uk/ fos-time-limits-payday-loan-refunds/
For the OP - you will find this useful (obviously remove the spaces as it appears I am too new to post links). If you legitimately have only found out in the last 3 years that you have valid grounds to complain then the information at the above link will be applicable. Farfetch thank you for quoting the relevant law - I suggest you read this to see how it has been applied.

You are still giving false information. You are not reading the law properly, hence why you keep bringing up your anecdotes in absence of an actual argument like suggesting people can bypass the 3 year rule by picking a date out of thin air. There are 2 rules that are SET IN LAW and CANNOT by bypassed - 6 year and 3 year:

6 years from taking out the product (a fixed date)
3 years from when the borrower knew, or could reasonably have known, they had reason to complain. (A variable date but there are many triggers for this - closing the account for example, or a CCL from the lender inviting complaints as many did with PPI)

If you read your own link the situation is clear:

In both cases FOS has decided that its rules do allow it to consider complaints about loans over six years old. This is because the customer in each case has made the complaint within three years of finding out they could complain.

That is to say it does not meet the 3 year rule, so cannot be time barred. Similarly if the lender chooses not to enforce it, it can be looked at.

OP has been time barred (per their contact email), the firm are highly unlikely to agree to open the complaint regardless of FOS. The OP 3 year limit was in February 2018, the same year of the debt camel article - 2018 the complaints about payday lenders were well established e.g. with Wonga going under, so the firm have correctly applied a time bar under 3 years

matt0305

Farfetch I think we will just have to agree to disagree. You think the complaint can't be taken forward based on your assessment of the law. I think it can based firstly on my own complaint being taken forward (and upheld in December 2020) and previous FOS decisions which refer specifically to the 3 year rule (where the FOS has made their own assessment of the law and decisions show many examples which contradict your assertion that the rule CANNOT be bypassed). I know which I think is more relevant and anyone else reading is free to make up their own minds.

[Deleted User]

matt0305 said:

Farfetch I think we will just have to agree to disagree. You think the complaint can't be taken forward based on your assessment of the law. I think it can based firstly on my own complaint being taken forward (and upheld in December 2020) and previous FOS decisions which refer specifically to the 3 year rule (where the FOS has made their own assessment of the law and decisions show many examples which contradict your assertion that the rule CANNOT be bypassed). I know which I think is more relevant and anyone else reading is free to make up their own minds.

Again, it's not my "assessment" of the law, it IS the law
The FOS cannot overrule 6 / 3 year time bars that are correctly applied which is what I said. I never said they cannot be bypassed period, and I would please request you do me the courtesy of not putting words into my mouth.

I don't know how much more simply I can explain this - if the FOS agree the time bar is NOT correctly applied (as they had in the debt camel article), they can override. If the time bar is correct applied, they cannot do anything about it, as the 3 / 6 year rules are in law. If you think about the flip side, it's like a statue barred debt, would you accept a debt company coming after you for a debt that was closed 6 years ago that was outside the 6 year rule? Of course not, you'd use the 6 year statute barred rule, just as the firm are using the same 6 year rule.

Given you're constantly quoting "previous FOS cases" then why not provide the case numbers to show where a correctly applied time bar was overruled? You don't need to link them, just give the cases.

Lastly, again, you cannot just pick a date out of thin air and claim that was when you knew you had reason to complain, the debt camel article is from 2018 and is talking about two cases from 2014 and 2012 - by 2015 or even 2017 there wasn't much in the way of pay day loan complaints. As the debt camel article says, around 2015 was when affordability cases started appearing, so it's a reasonable argument (as the FOS said) that the 3 year rule wasn't applicable at least until 2018. However, that was 3 years ago, the pay day loan complaints setup was well established by then and the 3 year rule is thus correctly being applied that OP could have had known they had reason to complain.

If OP choose to refer to FOS they will look at the rejection and determine if the loans company have correctly applied it, if they have, the FOS may ask the lender to look at it, but CANNOT make them re-open it. If they have not applied it correctly, the FOS can tell them to look at it. The fact the firm have already considered the time bar and used it indicates that they feel they have a good case to reject the complaint.