Credit card company refunded under s75, now the retailer is wanting me to pay them back

born_again

Manxman_in_exile said:

So, for example, if a s75 complaint went to the FOS and they decided that the bank should honour the claim and the bank refunded the money from the retailer's account, are you saying that the retailer could still sue the consumer in the face of the FOS decision?  Is that the current legal position?

On a S75 claim. A bank can not simply take the money from a retailers account. 

If FOS tells a bank to refund the customer then it comes from the bank. The bank could try a chargeback, but given the timescales involved in a complaint @ bank & then going to FOS is going to be well out of chargeback timescales.

ItsComingRome

Manxman_in_exile said:

ItsComingRome said:

viksviks84 said:

Manxman_in_exile said:

If the sofa is faulty enough to reject, why should the OP attempt any repair - "dirty" or not?

If it isn't faulty enough, why did the bank do a chargeback from the retailer's own funds leaving the OP vulnerable to be sued? Do banks just process chargebacks willy-nilly without any consideration of a claim's merits? If that is the case then the bank has done an even greater dis-service to their customer by putting them in a worse situation.

I know banks don't give a fig for their customers but that's terrible!

It is a terrible situation to put a customer in, isn't it, I'll certainly be asking this question and if necessary taking it further. 

...

The banks aren't interested in consumer rights, per se, only what the chargeback regulations say.  Unless there is clearly no valid claim under the chargeback rules it will be processed and it is up to the retailer to counter this.

...

So you are confirming my suspicion that if a customer approaches their bank with a valid s75 claim, they will by default process it as a chargeback rather than a s75?

ItsComingRome said:

viksviks84 said:

Manxman_in_exile said:

If the sofa is faulty enough to reject, why should the OP attempt any repair - "dirty" or not?

If it isn't faulty enough, why did the bank do a chargeback from the retailer's own funds leaving the OP vulnerable to be sued? Do banks just process chargebacks willy-nilly without any consideration of a claim's merits? If that is the case then the bank has done an even greater dis-service to their customer by putting them in a worse situation.

I know banks don't give a fig for their customers but that's terrible!

It is a terrible situation to put a customer in, isn't it, I'll certainly be asking this question and if necessary taking it further. 

...

The FOS can't, and won't, force the banks to refund you out of their own pockets. S75 doesn't specify where a refund has to come from, so a complaint on this basis is a non-starter.

Thank you.  That sounds like a very well informed view and the first part certainly makes sense.

But can you confirm whether or not a retailer who has had a s75 claim awarded against them (and the bank has taken the refunded money from that retailer, not from its own funds)  is able to sue the consumer to recover the money refunded to them by the bank?

So, for example, if a s75 complaint went to the FOS and they decided that the bank should honour the claim and the bank refunded the money from the retailer's account, are you saying that the retailer could still sue the consumer in the face of the FOS decision?  Is that the current legal position?

A section 75 claim wouldn't take money from the retailer so this scenario wouldn't happen.

On the face of it, I see no reason why, if the banks could take the money off retailers in the case of an S75 complaint, that the retailer wouldn't have the right to sue the customer as well. Banks are not the courts.

Manxman_in_exile

born_again said:

Manxman_in_exile said:

If the sofa is faulty enough to reject, why should the OP attempt any repair - "dirty" or not?

If it isn't faulty enough, why did the bank do a chargeback from the retailer's own funds leaving the OP vulnerable to be sued? Do banks just process chargebacks willy-nilly without any consideration of a claim's merits? If that is the case then the bank has done an even greater dis-service to their customer by putting them in a worse situation.

I know banks don't give a fig for their customers but that's terrible!

...

Interesting how it is the banks fault for doing the work. And not the company for sorting the issue in the 1st place.

...

I'm not suggesting the retailer isn't at fault - they are the major culprit here.

What I'm saying is that the bank is also at fault for processing a chargeback rather than a s75 refund - assuming that the OP asked for a s75 refund.  But my basis for saying that is that my understanding is that a chargeback still leaves the OP vulnerable to being sued by the retailer, whereas a s75 refund does not.  But its_coming_Rome is, I think, suggesting that it is still open to the retailer to sue the consumer even after a successful s75 refund.

Is that the case?

Edit: username correction

born_again

Manxman_in_exile said:

I'm not suggesting the retailer isn't at fault - they are the major culprit here.

What I'm saying is that the bank is also at fault for processing a chargeback rather than a s75 refund - assuming that the OP asked for a s75 refund.  But my basis for saying that is that my understanding is that a chargeback still leaves the OP vulnerable to being sued by the retailer, whereas a s75 refund does not.  But its_coming_home is, I think, suggesting that it is still open to the retailer to sue the consumer even after a successful s75 refund.

Is that the case?

No. Retailer would not even know a S75 claim had been processed. Unless bank contacted them to try & resolve the issue (highly unlikely)

One of the reasons S75 needs a total rethink. Credit Cards were never designed for S75. S75 was brought in when credit was provided by finance co's who dealt with certain products. Not like a CC where you can buy anything on.
So S75 needs to bring retailers into the process so CC co's & finance co's can make them pay their share. Or they will just carry on selling & not caring about their customers.

ItsComingRome

Manxman_in_exile said:

born_again said:

Manxman_in_exile said:

If the sofa is faulty enough to reject, why should the OP attempt any repair - "dirty" or not?

If it isn't faulty enough, why did the bank do a chargeback from the retailer's own funds leaving the OP vulnerable to be sued? Do banks just process chargebacks willy-nilly without any consideration of a claim's merits? If that is the case then the bank has done an even greater dis-service to their customer by putting them in a worse situation.

I know banks don't give a fig for their customers but that's terrible!

...

Interesting how it is the banks fault for doing the work. And not the company for sorting the issue in the 1st place.

...

I'm not suggesting the retailer isn't at fault - they are the major culprit here.

What I'm saying is that the bank is also at fault for processing a chargeback rather than a s75 refund - assuming that the OP asked for a s75 refund.  But my basis for saying that is that my understanding is that a chargeback still leaves the OP vulnerable to being sued by the retailer, whereas a s75 refund does not.  But its_coming_home is, I think, suggesting that it is still open to the retailer to sue the consumer even after a successful s75 refund.

Is that the case?

I've never suggested that the consumer is open to being sued after an S75 claim.  As I said, the retailer doesn't lose anything in an S75 claim, the bank does.

Manxman_in_exile

Thank you.

But the point its_coming_Rome is making is that it's always open to a bank or CC provider to refund a s75 claim from the retailer's funds and not from the bank's own funds.  If that happened (ie the retailer in effect paid the s75 refund and not the bank) could the retailer sue the consumer to reclaim the refund?

I must admit, I always thought one of the main differences bewteen a s75 claim and a chargeback was that s75 was paid by the bank but a chargeback came from the retailer.  Hence if a retailer was not happy with a successful chargeback against them, they could always pursue the consumer to get it back by suing them.  But they could not do that after a successful s75 claim against them.  However, its_coming_Rome seems to be saying that is not the case.

Is he right?

I agree CCs were never designed for s75.  ( or rather s75 wasn't designed for CCs!).  I studied for an LLM nearly 40 years ago and one of my subjects was the Law of Credit and Security.  (Taught as it happens by the leading barrister and academic in that field who also edited the practitioners' encyclopedia of credit law).  We covered s75 and credit cards were never mentioned or considered. 

Manxman_in_exile

born_again said:

Manxman_in_exile said:

So, for example, if a s75 complaint went to the FOS and they decided that the bank should honour the claim and the bank refunded the money from the retailer's account, are you saying that the retailer could still sue the consumer in the face of the FOS decision?  Is that the current legal position?

On a S75 claim. A bank can not simply take the money from a retailers account. 

If FOS tells a bank to refund the customer then it comes from the bank. The bank could try a chargeback, but given the timescales involved in a complaint @ bank & then going to FOS is going to be well out of chargeback timescales.

We cross posted. 

Are you saying its_coming_Rome is mistaken to suggest that a bank or CC provider could choose to fund a s75 claim from the retailer's funds rather than from the bank's own funds?  I always thought the bank had to pay but its_coming_Rome seems to believe otherwise for some reason...

Thanks

(My point has always been that if a consumer asks their bank for a valid s75 claim - which is made on a statutory basis - then that is what the bank ought to do and not follow a chargeback.  If the bank unilaterally decides to go for a chargeback instead, then they should be liable to the consumer in the event the consumer is sued by the retailer.  Otherwise s75 is meaningless)

born_again

Manxman_in_exile said:

I must admit, I always thought one of the main differences bewteen a s75 claim and a chargeback was that s75 was paid by the bank but a chargeback came from the retailer.  Hence if a retailer was not happy with a successful chargeback against them, they could always pursue the consumer to get it back by suing them.  

You are correct with that thought.

ItsComingRome

Manxman_in_exile said:

born_again said:

Manxman_in_exile said:

So, for example, if a s75 complaint went to the FOS and they decided that the bank should honour the claim and the bank refunded the money from the retailer's account, are you saying that the retailer could still sue the consumer in the face of the FOS decision?  Is that the current legal position?

On a S75 claim. A bank can not simply take the money from a retailers account. 

If FOS tells a bank to refund the customer then it comes from the bank. The bank could try a chargeback, but given the timescales involved in a complaint @ bank & then going to FOS is going to be well out of chargeback timescales.

We cross posted. 

Are you saying its_coming_Rome is mistaken to suggest that a bank or CC provider could choose to fund a s75 claim from the retailer's funds rather than from the bank's own funds?  I always thought the bank had to pay but its_coming_home seems to believe otherwise for some reason...

Thanks

I'm really not sure where you're getting that from.

A bank can and will go via the chargeback route if that is open to them. It is only if that is not available, or fails, that they would need to look at what the customers legal rights are and, if they are obliged, refund them out of their own pockets.

A chargeback fulfils the banks S75 obligations, so you can't specifically demand they foot the bill themselves, you can only ask to be reimbursed.  If your consumer rights are that you are entitled to a refund it is irrelevant (as far as the law goes) who is footing the bill.  If the bank reimburses you via chargeback, they've fulfilled their obligations.

viksviks84

Manxman_in_exile said:

ItsComingRome said:

Manxman_in_exile said:

ItsComingRome said:

Manxman_in_exile said:

TELLIT01 said:

The base seems to be made from poor quality chipboard so whatever you screw into it is likely to break away again.  I don't think any repairs should become the responsibility of the purchaser.  The goods are faulty, the card provider agreed and refunded.  It should be the responsibility of the retailer to collect the item.  Depending on where the OP lives in relation to the retailer it might be worth just getting a man with a van and returning it themselves.

sheramber said:

viksviks84 said:

Hi All, 

Thank you for your responses. 

I paid on a credit card, so I thought it was a S75? I thought chargebacks were using a debit card, but maybe someone can confirm?

Credit card can be chargeback or S75.

Debit card is chargeback only.

I think that if the OP made it clear to his bank/cc provider that he was making a s75 claim against the retailer (not a chargeback) and the bank did not do so, then he should be making a formal complaint to the bank.  The whole point of s75 is to give the consumer statutory protection and to make the finance provider jointly and severally liable with the retailer.  The bank/cc provider cannot be allowed to pick and choose a remedy which affords the consumer a lower level of protection (ie allowing the retailer to threaten to sue the consumer to get their money back after the bank has charged them back) than statute does.  The bank isn't allowed to limit or restrict statutory consumer rights, and if I were the OP I'd be complaining immediately on these grounds.

If the sofa was delivered by the shop to the OP, then the OP simply needs to let them know again that it is available for the shop to collect.   If the OP picked it up from the shop itself, he needs to return it to them. (I certainly would not hire a man in a van to do so if the shop had delivered it -  the OP simply makes it available for collection than it's up to the shop).

In the highly unlikely event that the OP is sued by the shop, then the OP simply defends the claim on the grounds that the sofa was faulty and that after being refunded by their bank they have made every attempt to get the shop to collect the defective goods but they have failed to do so.  I don't see how he can lose - but if he does lose I would be making a formal complaint to the bank and to the FOS.  If the sofa is faulty but the OP loses on some other ground, he should make a s75 claim against the bank!

If the sofa is faulty all this talk about the OP getting replacement feet or legs of eBay and fitting them himself is defeatist nonsense and utterly useless advice.

(NB - all the above assumes the sofa is sufficiently faulty to warrant rejection / a s75 claim - whether it is or not, I don't know).

There is no point in pursuing the bank. The OP got their money back, which is what they wanted.  They can't insist on an S75 if the situation has been remedied under the chargeback scheme.

Why not? 

The OP did not get what they want because the retailer is threatening to sue them.  (Whether or not the retailer actually has a case is irrelevant to my point -  his bank should not have put the OP in this position).

s75 is a statutory consumer right whereas a chargeback is, as I understand it, some kind of voluntary inter-bank agreement which is dependent on the terms of that agreement, and is not a legal "right" for the consumer.  Indeed a chargeback - as in this situation - gives the consumer a lower level of protection because it is always open to the retailer to sue the consumer after being charged back.  (Indeed I'm pretty sure you've made that point yourself in another thread - although it may have been somebody else like y3sitsm3 or p3ncilsharp3n3er).  The consumer won't be sued after a s75 claim because they've already won the claim.

I further understand that banks very much have a financial interest in pursuing a chargeback rather than a s75 claim. With a chargeback they are refunding money from the retailer and not from their own funds (this has been explained here by someone who appears to have inside knowledge of how it works) but unlike a s75 claim, a chargeback leaves the consumer open to further action from the retailer.

The bank is clearly and blatantly evading the intent Paliament had in passing s75 of the CCA (indeed I'd go further and say that by ignoring a clear request for a s75 claim and instead processing a non-stautory chargeback, they are clearly breaking the letter of the law) and I'd suggest they can't lawfully do that.  I suspect banks thought up chargeback as a "clever" wheeze for evading their responsibilities under the law and passing costs back to the retailer while dressing it up as them being kind and generous to their customers.  And of course they advertise it as such but fail to mention that chargeback does not offer the same level of protection to their customers as they already have under statute.

Presumably you would disagree?

[EDIT:  I'm assuming the OP clearly requested a s75 claim - they haven't confirmed if they did or not]

The OP got their money back, which is what they wanted.

They can't insist on an S75 claim now, as they have their money back.  There is no longer anything to "claim" for.

The OP quite clearly did not get what they wanted.

What the OP wanted was to get their money back and for that to be the end of the matter.  Instead what they got was their money back together with something far less welcome too - threats to sue them from the retailer.

That is because the bank evaded their responsibility to their client under s75 and instead processed a chargeback which - as we all know - leaves the OP vulnerable to being sued by the retailer trying to get their money back.  And of course the bank processes a chargeback rather than a s75 not because it is in their customer's interrest, but because it is in the bank's own interest.

You can see the lack of respect the bank has for their customer in the response above where they disingenuously say "... there is no record of them submitting a counterclaim to this in the time since and we are currently outside the 45 day window in which they can do that. ...but it would appear they are currently unable to claim back the amount credited on that date at this stage".

That is clearly designed to mislead the OP into believing that the matter is over and that the retailer now has no comeback against them.  What it deliberately does not say is that because the bank proceeded with a chargeback rather than a s75, the retailer might still be able to sue the OP to recover their money.  It's wrong.

If you still want to persevere with the belief that the OP got what they wanted, why don't you ask them here in the thread?  Ask them if they (a) wanted to get their money back and for that to be the end of the matter, or whether (b) they would have preferred to get their money back and get threats of being sued from the retailer.  I know which I'd prefer...




NB - whether the OP actually gets sued by the retailer in this case is irrelevant to my general point.  My general point is that where a consumer makes a valid s75 claim then it is that that their bank or CC provider should process, and not just decide to process a chargeback instead because that is cheaper to them.  A chargeback clearly leaves a consumer in a more vulnerable position that a s75 claim.  It's been clear from several threads on here that banks and CC providers often choose to process a chargeback even when a s75 claim has been requested and is appropriate.  I suspect the default position of the banks is to go for a chargeback even when it should be a s75

Manxman_in_exile I really appreciate your comments, I absolutely just wanted this put to bed, the threat of being sued is frightening and I can understand why people might cave and repay. I'm going to pray that the retailer collects the sofa, but obviously they want the money, not a damaged sofa that they may not resell.