having problems with Bank Smart

[EXC]

Re: having problems with Bank Smart

Who did you pay the commission to? Did you go with another CMC after you signed up with BS and if so was it for the same claim?

[topcatslot]

Re: having problems with Bank Smart

First off thanks for being there and your time. The commission was paid in full to a company called PPI claim line, not sure how it happened but I think why wife got one of those cold calls from BS and signed up. We heard nothing from BS and along came PPI claim line, to which we both signed and glad we did. Not sure about same claim as BS seem to be under the impression that anything to do with our bank/claims is there claim. By the way BS are claiming over £3000 and have already mentioned bankruptcy etc.

[EXC]

Re: having problems with Bank Smart

Ok, I just want to establish a bit more about what happened and when with a view to making a formal complaint to Bank Smart which should kick their collection activity into touch during the time they take to investigate the complaint (they have 8 weeks in which to give you a final response) and if they don't uphold your complaint you can then take it to the Legal Ombudsman.

A few questions:

When did you sign up with Bank Smart?
Was it just your wife who signed up with them?
Do you have the original contract/letters of authority?
When you say you heard nothing form Bank Smart after signing up, how long was it before you signed up with PPI Claim Line?
When you got your PPI award via PPI Claim Line was it for a joint account (ie loan,mortgage etc)?
Can you post up the correspondence from Bank Smart regarding the £3000 invoice?

[topcatslot]

Re: having problems with Bank Smart

Hi
I'll answer in the above order, I thought id already sent a reply to the above questions, however I must have done or missed something.
07/July/2012
Yes its in her name with me as joint policy holder
Yes I have a scanned copy
We signed up with PPI claim line before Bank Smart, not sure why BS got involved or how
Yes it was for joint account for loans etc.
Tried to upload Bank Smarts invoice but not computer savvy what's a URL normally I would insert a file using my email with no problems
from topcatslot

[EXC]

Re: having problems with Bank Smart

Hi
I'll answer in the above order, I thought id already sent a reply to the above questions, however I must have done or missed something.
07/July/2012
Yes its in her name with me as joint policy holder
Yes I have a scanned copy
We signed up with PPI claim line before Bank Smart, not sure why BS got involved or how
Yes it was for joint account for loans etc.
Tried to upload Bank Smarts invoice but not computer savvy what's a URL normally I would insert a file using my email with no problems
from topcatslot

Ok thanks.

If you could e-mail me the original contract/letters of authority, invoice and any other correspondence from Bank Smart that would be helpful. I'll send you a private message with my e-mail address.

[EXC]

Re: having problems with Bank Smart

Thanks for sending the info.

It says in the e-mail Bank Smart sent you on 7 April:

Dear xxx,

Please see attached for the signed document. The contract clearly states after signing our contract you are liable for our 25% plus VAT fee whether or not you believe the settlements was as a result of the work we carried out, you carried out, or another claims company carried out. Please view term 2.2 of the attached. Given the amount of the debt this is a very serious matter and we suggest you either pay the invoice in full now or seek immediate professional independent legal advice, we will hold the invoice for 7 days to allow you time to do this. You should not that as the amount is over the threshold for bankruptcy proceedings and the invoice is for commission it is likely that if a successful judgement is obtained we will be progressing towards bankruptcy proceedings against you to recover the full debt, interest and any other legal costs incurred, including solicitors costs.

Can you send me the contract they say they attached? All you have sent me is the Third Party Authorisation and Agreement.

[EXC]

Re: having problems with Bank Smart

The term they might be relying on is this one from the current terms & conditions on the Bank Smart site:

Service charges
5) You agree that the Company’s fee will apply to any settlement, debt write off or reduction in debt/account balance agreed upon with the Third Party through either the Company or you personally, settlement direct from your bank/financial institution or through another claims management company whether or not any settlement is referred to as a gesture of goodwill or otherwise. The Company’s fee is applicable to any settlement agreed after the date of the Letter of Authority unless the claim has been cancelled and cancellation fee paid in full.

In my view this is an unfair term as by being allowed to charge you for services supplied by another company it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

What do you think [MENTION=6]Amethyst[/MENTION] ?

[Amethyst]

Re: having problems with Bank Smart


Clause 2.2 as referred to in their letter (from someone elses agreement so check if it is the same on yours)

The contract clearly states after signing our contract you are liable for our 25% plus VAT fee whether or not you believe the settlements was as a result of the work we carried out, you carried out, or another claims company carried out. Please view term 2.2 of the attached.

It doesn't state what they say, it states ''once the Company has STARTED the claim process on your behalf with the third party'' not ''once the contract is signed''

[topcatslot]

Re: having problems with Bank Smart

I have checked my copy as emailed by Bank Smart, and is word for word with above.
Kind Regards
topcatslot

[EXC]

Re: having problems with Bank Smart

Thanks. I've just e-mailed you to ask if you have anything from PPI Claim Line about them making a claim to Lloyds and also when did you sign up with them?

[EXC]

Re: having problems with Bank Smart

@topcatslot

Draft complaint. Send it to both Bank Smart and MIL Collections.

You might think it's a bit legalistic but given the Bank Smart will probably reject it, it's really for the consumption of the Legal Ombudsman.

Dear Sir

Bank Smart Client ref xxx
MIL Collections ref xxx

Formal Complaint

We wish to make a formal complaint to Bank Smart for which we expect an acknowledgement within 5 business days and final response within 8 weeks, in accordance with CMR Complaints Handling Rules and your own complaints handling procedures.

Please note that should we not consider the complaint to be resolved to our full satisfaction within 8 weeks we fully intend to take our complaint to the Legal Ombudsman.

Please also note that until the complaint is fully resolved, either by yourselves or the Legal Ombudsman, you or any agent acting on your behalf are obliged to suspend all collections activity in accordance with Client Specific Rules, Principle 1 (a), of the Conduct of Authorised Persons Rules 2014. A copy of this complaint has been forwarded to MIL Collections for their reference.

Background

In January 2012 Mrs xxx contracted with PPI Claims Line to complain to Lloyds TSB about mis-sold PPI on 3 joint loan accounts.

On 14 May 2012 Lloyds rejected the complaint on the basis that, according to their records, no PPI policies were taken out.

PPI Claims Line subsequently forwarded the complaint to the Financial Ombudsman.

On 7 July 2012 we were persuaded to sign a Third Party Authorisation with Bank Smart which we believed covered any other accounts with Lloyds not already complained about via PPI Claims Line.

On 30 May 2013 Lloyds informed us that the complaint with the Financial Ombudsman had been upheld on the 3 loan accounts and also offered redress on several other accounts that were taken out and/or refinanced the loans and which were not subject to the original complaint.

On 15 August 2015 you issued an invoice to us for commission on all the above upheld PPI complaints.

Complaint – Ground 1

The basis of this part of our complaint is that you are improperly seeking payment for commission for claims management services that you did not provide whatsoever and that were in fact wholly provided by an unrelated company.

The contractual term on which you appear to be relying on to support your demands for payment is clause 2.2 which states:

‘’You agree that once the Company has started the claim process on your behalf with the Third Party, the Company’s standard fee as set out in condition 2.8 of these terms & conditions will apply to any settlement, debt write off/reduction or other benefit agreed upon with the Third Party through either the Company or you personally, settlement direct from you bank/financial institution or through another claims management company and you authorize settlement to be paid direct to Bank-Smart whether or not settlement is referred to as a gesture of goodwill or otherwise.’’

The effect of the above term allows you to levy charges for commission on settlements for claims made entirely by other companies and which is in breach of section 5.1 of The Unfair Terms in Consumer Contracts Regulations 1999:

‘’A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.’’

Clearly the term does not merely cause a ‘’significant imbalance’’ in the in the parties’ rights and obligations arising under the contract, it assigns to you all the beneficial rights to the contract without any obligations whatsoever.

The effect of an unfair is provided for in section 8.1:

‘’An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.’’


Complaint – Ground 2

Notwithstanding the above, as a matter of contractual construction, the term only applies ‘’once the Company has started the claim process’’. Given that in all your dealings with us you had never even established that any claims could in fact have been made until long after they were concluded, you (‘’the Company’’) never started the claims process in any event.

We wish to repeat that should we not be fully satisfied with your response within the 8 week time frame provided for we fully intend to take our complaint to the Legal Ombudsman. We also wish to repeat that until such time that this complaint is concluded, no collections activity should be undertaken by yourselves or your agents (including MIL Collections).

Yours

Mr & Mrs xxx

[EXC]

Re: having problems with Bank Smart

[MENTION=64624]topcatslot[/MENTION] this case study from the Legal Ombudsman should help as the same principles apply to your case.

[topcatslot]

Re: having problems with Bank Smart

As always EXC thanks for your time and help, starting to think positive thoughts at last.
Kind Regards
Topcatslot

[EXC]

Re: having problems with Bank Smart

An update for those following topcatslot's issue with Bank Smart:

Bank Smart rejected his complaint in post #26 and the complaint went to the Legal Ombudsman.

Incredibly the investigator advised him in a phone call that, somehow, Bank Smart had ''acted fairly''.

Topcatslot has requested that his case is reviewed by a senior investigator.

In the meantime we've raised both the issue of the unfair terms in Bank Smart's contracts and the Legal Ombudsman's decision with the head of the Claims Management Regulator.

[rossimedair2008]

Re: having problems with Bank Smart

Has anyone ever actually had a complaint upheld by the Legal Ombudsman? The reason I ask is in August 2012 I wrote to Bank Smart advising them that I had taken legal advice and that as far as my solicitor was concerned I they didn't have a leg to stand on. I was advise at the time to filter all information through him which I did. Of Course bank smart refused this and continued to harass. Matters came to ahead a month ago when they sent a letter threatening court action. I made a formal complaint with the legal ombudsman which has now give bank smart 8 weeks to investigate the complaint before they will even look at it.