Are FCA fairness rules meaningful during live disputes?

pw888

https://forums.moneysavingexpert.com/discussion/comment/81882009#Comment_81882009

OK but the very system that sent me the default notice is essentially "one size fits all". As it has rightly been pointed out, it will be a generic template that has been triggered by an automated system.

To that end a bank will have a system that is sustainable and able to deal with a large number of people but will have mechanisms to try to ensure they stay within compliance. Of course it will not be fool proof, will not be able to take into account all different kinds of nuances and there will be conflictions. I'm questioning this system in general and how it is applied to everyboody, not just me.

From my experience FCA fairness rules are not meaningful during a dispute. As you also correctly point out, the rules can be open to interpretation. This suggests to me that the rules are only applied retrospectively after the conclusion of an investigation by the relevant authority who can interpret them meaningfully. This makes sense most of the time but I think there will be situations where the rules should maybe considered during the dispute by a mediator.

Where a lender is chasing a customer for a debt that is likely a mistake and/or a result of the firm neglecting their obligations under the CCA for example. Once they have submitted a final response, they have to stand by it, regardless of any problems with it.

The firm in my case refuses to explain why they disagree with me as they claim they cannot discuss the matter any further whilst the matter is with the FOS. Again, this is perfectly understandable but my argument is that if they can't justify what they are doing for this reason, then how is it appropriate to carry out the activity they are performing whilst being unable to justify it. Surely some sort of time out in which we can't make demands of each other is appropriate? This happens in other aspects of business or even life in general.

I've just received a couple of interesting emails. The lender has contacted me again on the back of receiving a letter from my MP about the situation. They have apologised for the threatening letters and said that it was a mistake as my account should be on 'hold'.

The case worker has shared with me the lender's reasons for their disagreement with the report. Apparently they consider the report to be based on assumptions and it is not within the scope of the FOS to base judgement on what they believe to be reasonable and fair on the balance of probability! 😲

Apologies again if I'm abusing the forum with this kind of post asking a broad question. I get the impression that I'm irking people by not explaining all of the details of my situation. I may post about it when I get chance but I feel I've already written a lot as it is and to explain everything would require an essay. I'll leave it that for now if my original query isn't appropriate. Thanks for the feedback.

ManyWays

The case worker has shared with me the lender's reasons for their disagreement with the report. Apparently they consider the report to be based on assumptions and it is not within the scope of the FOS to base judgement on what they believe to be reasonable and fair on the balance of probability! 

Depending on the situation that may be unreasonable and should be challenged. Unless you can share some details, it is not possible to say how you should reply. .

Isthisforreal99

Yes, you have written a lot mostly repeating the same stuff over and over. I find it strange that you aren't willing to share details of the actual debt dispute but will to go into great detail on the fairness issue and seek opinions and disagree when others disagree with you. It would not require an 'essay' but your writing style suggests it would end up as such.

There is no point in winning the battle (fairness) but losing the war (debt dispute).

Anyways, will leave it at that.

eskbanker

From my experience FCA fairness rules are not meaningful during a dispute

I think that sums it up - you believe that you're being treated unfairly but are seemingly trying to extrapolate that to a generalisation. To me there's no doubt that 'fairness' isn't some sort of universal trump card that can be played in order to try to influence the outcome of a dispute, but your approach of identifying and citing specific sections of the FCA handbook is more constructive, as that's something reasonably measurable, albeit still open to interpretation.

The case worker has shared with me the lender's reasons for their disagreement with the report. Apparently they consider the report to be based on assumptions and it is not within the scope of the FOS to base judgement on what they believe to be reasonable and fair on the balance of probability! 😲

If the bank can highlight assumptions being made by FOS then yes, it's natural that they'll challenge the provisional finding on those grounds. It is true that FOS adjudicates using the concept of fairness as well as strict legal/contractual interpretation though, but that doesn't give them the right to make assumptions, and their decisions are often debatable, despite ultimately being binding once through the final ombudsman stage, which is where the bank evidently wants to take this one.

DarthDaisy

https://forums.moneysavingexpert.com/discussion/6654901/are-fca-fairness-rules-meaningful-during-live-disputes

With respect, this is a very long winded post that on the face of it seems to be something very simple.

Rather than quoting CONC 7.15 why not just say you have a debt that you believe is statute barred

This means it is not really a credit card forum issue but a DebtFreeWannabe forum issue.

I also think you are taking things too literally and so the FOS are not the people to use except to punish the firm after it has all been dropped.

You also do not seem to state your desired outcome so I will guess a bit here.

First you say your former CARD provider is breaking FCA rules but then you say a BANK is pressuring you for payments towards a debt or an agreement. Then you give an example, not stating whether this is the actual dispute and flip back to CARD and then later you talk about LENDER.

If the debt was with Barclays then just say Barclays for all of it, if it was with Santander then just say Santander for all of it.

Find one word to describe them and stick to it, then avoid the subjective philosophy and stick to the facts of the dispute.

In any event DO NOT PAY.

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e.g.

I look out a credit card with ABC Plc in December 2008, the account operated normally until 2015 when I had financial difficulties, In May 2016 ABC Plc issued a default notice telling me they sold it to Shafters Plc who appointed Tight Bar Stewards Plc to manage the debt and they in turn appointed Rottweiler Debt Collectors among other debt collectors to attempt to enforce the debt. I made no payments to the debt, nor did I acknowledge it in any way, as far as I am aware the debt became statute barred in May 2022 and I can find no evidence of a CCJ ever being obtained.

Now a company called WeBuyAnyDebt Plc are trying to collect the debt and putting me under considerable pressure despite my raising a complaint with the FOS.

What can I do to stop the threats from WeBuyAnyDebt Plc?

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Generally a debt is statute barred after six years from the last payment or acknowledgement or from a default notice (see the stickies in DebtFreeWannabe forum to see if case law applies to you.

What does not add up is the term of them issuing a default notice now, if a debt is statute barred then such a notice should have been issued six or more years ago.

When a default notice is issued the debt is sold for a fraction of the value, the buyer will then employ a debt management firm and they will try different debt collectors, giving each a chance to have a go.

What you need to understand about debt collection is that it is all about engagement, they want you to acknowledge the debt if it is within the 6 years or make token payments which reset the 6 years to zero.

Whilst they can write very scary letters there is very little they can do for unsecured debt, they can't take your car or your home or the clothes on your back. Sure they can make lots of threats and send some plonker to visit you but a video doorbell scares them off. Most of the debts are auto generated depending on your position and it would not be the first time that a company puts you in the wrong status and send the wrong letters.

Now if a debt has been defaulted six or more years ago then no more interest can be added.

Sometimes those plonker debt collectors add pretend fees but if you DO NOT ENGAGE they will get sacked within 3 to 6 months and another firm of plonkers will be assigned to have a go. The fees the first plonkers added will then disappear and the final original balance will come back

So all you do is

DO NOT PAY

DO NOT ACKNOWLEDGE

DO NOT ENGAGE

They can

Threaten to take you to Court

Threaten to seek a deduction from wages

Threaten to do all sorts

but if the debt is statute barred without them having gone to Court in the six years then they can't take you to Court now.

If they did take you to Court and got a CCJ then the CCJ itself has a six year life before the creditor has to go to Court for more time. This does not happen except for in one circumstance because if they did and it was appealed then they risk a higher Court decision against the whole industry. I will not mention the one circumstance as you have not mentioned it being a factor so far.

When their threats are fluffy and say we will consider these actions it is ball hooks.

What is strange here is that you talk of a bank, but banks rarely let things get this far, they sell it off. Some have different policies, for example Amex tend to go for CCJ early, while some do not even chase the debt for 6 years until it is statute barred and still sell it off.

I do not think this is an FOS issue based on the vague post you made.

If a debt is indeed Statute barred and you have sent the sticky letters from DebtFreeWannabe forum to prove it etc so you are absolutely SURE it is statute barred then you have two choices.

1. Continue to ignore them
2. Send a letter to the debt owner informing them the alleged debt is statute barred and any further enforcement action will result in your applying a handling fee per communication event.

This is a trick I saw online about a dispute and copied, I decided to add a charge for reading a communication and a charge for replying, I wrote them a cease and desist letter and told them that by sending me any further communication regarding this matter they would be accepting my terms of engagement which will be charged for £10 and £25 is acceptable for reading and replying respectively by email, letter or text and £50 per 15 minutes for any phone calls including hold time.

You can't charge for legal fees in the Small Claims Court but you can charge for your time if you warn them in writing and give them a certain date. They ended up having to file a defence in Court, lost the case, paid the Court fee plus over £250 in charged. That dispute was in the property tribunal and they did not pay so I then refiled in the Small Claims Court for a CCJ on the Property Tribunal decision. They then paid the first amount but I pursued it again and they settled in full.

Even if the debt is sold and twenty years old, there will still be some plonkers who think they can enforce debt that is statute barred.

The debtfreewanabe forum and 3rd party sites show they many of these debt collectors use underhand tactics like faking token payments or faking you acknowledging the debt others faking that a CCJ was obtained. Many of them carry out what I call data grabbing exercises, so they ask you to call a number then say you need to fill out an affordability form or provide your date of birth or some such rubbish. The fact is if you engage you encourage them, if you show fear you encourage them, if you show them you have something to lose you encourage them.

When I have had such debts I just went off radar, I did not vote, did not obtain credit, was not on any database where I could be looked up. Time passed and I got nothing, it was only when I was absolutely sure that everything was statute barred and all or any CCJ's had expired that I put my head above the parapet. Sure enough the latest owners of the debts reared their ugly head, it started with a backdated letter saying they now owned the debt and assigned it to AN Other Debt Managers Ltd, ANO had an M.O. of using what I might call a low hanging fruit company, that company got fired pretty sharpish and a process followed involving four or five letters from a new group of companies. Eventually I got a letter saying it was sent back to ANO, but not further activity so far.

Some went to a different company but with a few stunts found in DebtFreeWannabe forum they wrote saying they had closed the account.

Since I originally defaulted I have never had credit although I am thinking of getting a card for S75 protection.

Note that being in default of an agreement is different to getting a notice saying the debt has been sold and a debt default notice being issued. CAB advice:

"A debt default notice is a formal, legally required warning letter sent by creditors (usually after 3-6 months of missed payments) under the Consumer Credit Act 1974. It informs you that you have at least 14 days to pay the arrears to avoid the account defaulting. A default severely impacts your credit score for six years."

So if you are absolutely sure the debt is statute barred then no fees can be added and it can't be defaulted again.

If on the other hand they have legit evidence that the debt is not statute barred because you made a payment within the 6 years then so what, just start over and move into DO NOT ENGAGE stage for 6 years.

eskbanker

With respect, this is a very long winded post that on the face of it seems to be something very simple.

Rather than quoting CONC 7.15 why not just say you have a debt that you believe is statute barred

This means it is not really a credit card forum issue but a DebtFreeWannabe forum issue.

I also think you are taking things too literally and so the FOS are not the people to use except to punish the firm after it has all been dropped.

An extraordinary intervention!

Putting aside the fact that you're accusing OP of being long-winded while making a post that's even lengthier and less focused, you appear to have completely misunderstood the post, which is nothing to do with statute-barring or debt-free wannabe but is clearly a FOS matter relating to a credit card dispute.