FOS can’t look into my complaint as >6 years, can I go to MCOL?

lee19855

Basically I have a car finance mis selling claim that I complained 6 years 2 months ago. The company alluded to the fact that the mis sold it in their final response by saying that it may have been mis-sold, but rejected it because it was over 6 months and said that they don’t permit the FOS to look into it.

It was referred all the way to an actual Ombudsman and not upheld - they said the decision is not based on the complaint but simply whether the service can look at my complaint - and because it was outside of the 6 year time limit they cannot look into it.

I know for a fact that I can win this case, I’ve seen some of the case studies almost an exact replica of mine even with the same company and most were upheld in the same circumstances.

Can I go to the small claims court with this and submit a claim by Money Claim Online? Or do they also have time limits. Or won’t they look at something that has been with the FOS even though the FOS never looked into the complaint just whether they, as a service, can accept it.

There is around £6,000 at stake here.
Can someone help who really knows?

dunstonh

Basically I have a car finance mis selling claim that I complained 6 years 2 months ago. The company alluded to the fact that the mis sold it in their final response by saying that it may have been mis-sold, but rejected it because it was over 6 months and said that they don’t permit the FOS to look into it.

They didn't allude to that. You are misinterpreting what has been said.

It was referred all the way to an actual Ombudsman and not upheld - they said the decision is not based on the complaint but simply whether the service can look at my complaint - and because it was outside of the 6 year time limit they cannot look into it.

That was a waste of time, energy and resources as the FOS cannot overrule a timebar unless the timebar is being applied incorrectly.    In a simple case like this, it is either less than 6 months or more than 6 months.

I know for a fact that I can win this case, I’ve seen some of the case studies almost an exact replica of mine even with the same company and most were upheld in the same circumstances.

So, why didn't you refer it to the FOS when your complaint was rejected?

Can I go to the small claims court with this and submit a claim by Money Claim Online? Or do they also have time limits. Or won’t they look at something that has been with the FOS even though the FOS never looked into the complaint just whether they, as a service, can accept it.

The FOS never considered your complaint.  You were complaining about something else when you referred it to them.

You can use the courts but you have to present your evidence.   Its a higher bar than the FOS.  And if you lose the case, you have to pay the other party's costs (set to a reasonable limit).

fatbelly

You can start a claim but if the 'cause of action' was more than 6 years ago and they have not acknowledged this as a debt, thus restarting the clock, then they have an easy defence.

A 6k claim will cost £455 to start

lee19855

fatbelly said:

You can start a claim but if the 'cause of action' was more than 6 years ago and they have not acknowledged this as a debt, thus restarting the clock, then they have an easy defence.

A 6k claim will cost £455 to start

Hello fatbelly, can you explain this please. I assume it’s similar to a consumer debt being statute barred, but if this is an mis selling claim how does it apply. What would I need to evidence/snarky get them to evidence or imply in order to go ahead with this.

I have seen ombudsman cases with the same mis selling cases against the same company and they reference certain parts of the financial regs that exactly apply to me. My plan is to reference these finance regs and explain how the company has not followed them, and also to reference these other cases as examples that have been deemed by the FOS to have been mis sold and mine is a similar case… I’d like to think this would be enough?

lee19855

dunstonh said:

Basically I have a car finance mis selling claim that I complained 6 years 2 months ago. The company alluded to the fact that the mis sold it in their final response by saying that it may have been mis-sold, but rejected it because it was over 6 months and said that they don’t permit the FOS to look into it.

They didn't allude to that. You are misinterpreting what has been said.

It was referred all the way to an actual Ombudsman and not upheld - they said the decision is not based on the complaint but simply whether the service can look at my complaint - and because it was outside of the 6 year time limit they cannot look into it.

That was a waste of time, energy and resources as the FOS cannot overrule a timebar unless the timebar is being applied incorrectly.    In a simple case like this, it is either less than 6 months or more than 6 months.

I know for a fact that I can win this case, I’ve seen some of the case studies almost an exact replica of mine even with the same company and most were upheld in the same circumstances.

So, why didn't you refer it to the FOS when your complaint was rejected?

Can I go to the small claims court with this and submit a claim by Money Claim Online? Or do they also have time limits. Or won’t they look at something that has been with the FOS even though the FOS never looked into the complaint just whether they, as a service, can accept it.

The FOS never considered your complaint.  You were complaining about something else when you referred it to them.

You can use the courts but you have to present your evidence.   It’s a higher bar than the FOS.  And if you lose the case, you have to pay the other party's costs (set to a reasonable limit).

Thanks for your expertise Dunstonh. When you say up to a reasonable limit, what sort of ball park figure am I looking at in the event of a loss?

I read their final response again and you’re right it’s probably by assumption but they did say it is fair to say there has been affordability issues with the agreement in those exact works - I feel that this incriminates themselves. That’s not a part of my prosecution anyway as it means nothing. 

You’re right they didn’t look into my complaint and that’s a good thing in a way, for this court case anyway. Before they look into a case they need to be satisfied that it is something they can look into by meeting the terms of reference, because this fell outside of the 6 year period fhe “complaint” was in essence arguing this rule and whether they’d apply exceptional circumstances of the 3 year rule instead. Which they didn’t. The Ombudsman’s final response says exactly that - that the decision is in no way based on the complaint about the company but simply whether the service can accept my complaint. This is important in case the lender tries to say to the court the ombudsman has already looked at it and not upheld it. Which is true, but only for the time limit - the ombudsman did not actually look into the complaint itself or decide that the complaint itself is not upheld - it never got that far. That’s where I’m going this with - so that the court cannot just “agree” with the ombudsman, as I’m sure the lender will try and defend it that way?

dunstonh

Thanks for your expertise Dunstonh. When you say up to a reasonable limit, what sort of ball park figure am I looking at in the event of a loss?

it is normally limited to fixed costs involved in issuing the claim, loss of earnings and travel costs of the other party and any witnesses attending the hearing.  Experts fees and court fees.   

If the court feels a party has behaved unreasonably, the fees can go quite high.    In one case on the small claims track, the court awarded costs for the defendant £17,500 because the claimant did not properly set out their claim or cause of action.   That high is very unusual but it does show the risk that can exist.

You’re right they didn’t look into my complaint and that’s a good thing in a way, for this court case anyway.

It is a good thing because if they had, the defendant can offer the fact it has been reviewed by an independent ombudsman/adjudicator and rejected as evidence supporting their case.  The courts have been known to arrive at a different outcome to the FOS but again, but its just an extra bit of added weight the defendant can use.

 Before they look into a case they need to be satisfied that it is something they can look into by meeting the terms of reference, because this fell outside of the 6 year period fhe “complaint” was in essence arguing this rule and whether they’d apply exceptional circumstances of the 3 year rule instead. Which they didn’t. The Ombudsman’s final response says exactly that - that the decision is in no way based on the complaint about the company but simply whether the service can accept my complaint. This is important in case the lender tries to say to the court the ombudsman has already looked at it and not upheld it. Which is true, but only for the time limit - the ombudsman did not actually look into the complaint itself or decide that the complaint itself is not upheld - it never got that far. That’s where I’m going this with - so that the court cannot just “agree” with the ombudsman, as I’m sure the lender will try and defend it that way?

Right. So, this wasn't the 6 month time period to refer the case to the FOS.  It was 6 months past the 3 & 6 year rule (6 year in this case).   There are time bars for legal action as well.    How long ago did you enter into the borrowing?

DullGreyGuy

lee19855 said:

Basically I have a car finance mis selling claim that I complained 6 years 2 months ago. The company alluded to the fact that the mis sold it in their final response by saying that it may have been mis-sold, but rejected it because it was over 6 months and said that they don’t permit the FOS to look into it.

It was referred all the way to an actual Ombudsman and not upheld - they said the decision is not based on the complaint but simply whether the service can look at my complaint - and because it was outside of the 6 year time limit they cannot look into it.

I know for a fact that I can win this case, I’ve seen some of the case studies almost an exact replica of mine even with the same company and most were upheld in the same circumstances.

Can I go to the small claims court with this and submit a claim by Money Claim Online? Or do they also have time limits. Or won’t they look at something that has been with the FOS even though the FOS never looked into the complaint just whether they, as a service, can accept it.

There is around £6,000 at stake here.
Can someone help who really knows?

If you complained over 6 years ago then you are time barred. 

The standard law of limitation revolving around contracts is 6 years from the date of the breach which you are stating happened at the start of the contract. In certain circumstances it can become 3 years from the date of knowing, ie the point you realised the contract had been breached. Your complaint evidences you had identified what you believe to be a problem over 6 years ago and so the defendant will have a statutory defence of saying it's time barred. 

At best you are then looking at losing the £455 issuing fee etc but at worst could be ordered to pay towards the defence's costs. 

sun73

lee19855 said:

Basically I have a car finance mis selling claim that I complained 6 years 2 months ago. The company alluded to the fact that the mis sold it in their final response by saying that it may have been mis-sold, but rejected it because it was over 6 months and said that they don’t permit the FOS to look into it.

It was referred all the way to an actual Ombudsman and not upheld - they said the decision is not based on the complaint but simply whether the service can look at my complaint - and because it was outside of the 6 year time limit they cannot look into it.

I know for a fact that I can win this case, I’ve seen some of the case studies almost an exact replica of mine even with the same company and most were upheld in the same circumstances.

Can I go to the small claims court with this and submit a claim by Money Claim Online? Or do they also have time limits. Or won’t they look at something that has been with the FOS even though the FOS never looked into the complaint just whether they, as a service, can accept it.

There is around £6,000 at stake here.
Can someone help who really knows?

Can I ask if this type of complaint relates to the potential car finance mis selling issues around high commission earned by car dealers ?

If so you might have to wait until the FCA announces a redress scheme in September.  You could then revisit your complaint.

lee19855

One more question, since my mis-selling complaint is out of time against FCA 6 year time limits. 

There is a new FCA scandal regarding secret commissions on HP or PCP contracts pre 2021 - I’m sure you have heard about it. I’ve seen it on Martin Lewis etc. Would this still be subject to the 6 year time limit I.E because I took out agreement in 2016 is this down the same rabbit hole? Or, because this is a recently advertised issue and the FCA guidance is recent, am I within the 6 years here? Can anyone advise - this is my only alternative.

pushpull

lee19855 said:

One more question, since my mis-selling complaint is out of time against FCA 6 year time limits. 

There is a new FCA scandal regarding secret commissions on HP or PCP contracts pre 2021 - I’m sure you have heard about it. I’ve seen it on Martin Lewis etc. Would this still be subject to the 6 year time limit I.E because I took out agreement in 2016 is this down the same rabbit hole? Or, because this is a recently advertised issue and the FCA guidance is recent, am I within the 6 years here? Can anyone advise - this is my only alternative.

The 6 year time limit is enshrined in law.

Unless there is a change to the Limitations Act which retrospectively applies then you're out of luck with the courts.

It sounds like you're grasping at straws.  You've not said why you think it's been missold, although IMO not stating their commission is a pathetic reason for the FCA to get involved.  It's like complaining that Tesco don't list their profit margin on their SELs.  But this is par for the course for a government agency that was set up purely to cover up the government's failings during the 2008 financial crash.

Nasqueron

lee19855 said:

One more question, since my mis-selling complaint is out of time against FCA 6 year time limits. 

There is a new FCA scandal regarding secret commissions on HP or PCP contracts pre 2021 - I’m sure you have heard about it. I’ve seen it on Martin Lewis etc. Would this still be subject to the 6 year time limit I.E because I took out agreement in 2016 is this down the same rabbit hole? Or, because this is a recently advertised issue and the FCA guidance is recent, am I within the 6 years here? Can anyone advise - this is my only alternative.

The issue isn't "secret" commission - sellers are perfectly allowed to get commission for arranging finance, the issue is that there is a suspicion some sellers were giving people higher APR than they would qualify for in order to get more commission. There is no evidence it affects all sales or even a minority or majority - once the FCA is done, there will be a clearer picture. It is very likely most people won't be affected and people are already getting their hopes up of a pay day from perfectly legal sales