Section 75 Claim - Consumer Credit Act 1974 (as amended)

[charitynjw]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

Thank you charitynjw.

Overall: is this the right place for me to post my progress and questions as I proceed with the (ups and downs!) of a Section 75 Consumer Credit Act claim with American Express?

Thanks

Good morning, dossier.

I'm not sure; either here or here I reckon.

I'll give [MENTION=49370]Kati[/MENTION] a nudge; our Kati's the one who does all the heavy lifting around this joint! :director:

[Kati]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

Thank you charitynjw.

Overall: is this the right place for me to post my progress and questions as I proceed with the (ups and downs!) of a Section 75 Consumer Credit Act claim with American Express?

Thanks

Good morning, dossier.

I'm not sure; either here or here I reckon.

I'll give @Kati a nudge; our Kati's the one who does all the heavy lifting around this joint! :director:

here will be fine :nod: (although if you'd prefer me to move the thread [MENTION=72507]dossier[/MENTION] just let me know ) xx

[dossier]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

Have you been through the full complaints process and requested refund from the academic institution ?

Thank you Amethyst. Yes I have. I told them that I wanted to submit a complaint, to which they then wrote to me saying that they have not received a complaint from me, and are dismissing my (not received) complaint, and that ends the complaints procedure and closes the matter as far as they are concerned.

As you can perhaps tell, they do not appear to be troubled about even following the "internal complaints procedure" properly, which is why I prefer not to deal further with the merchant and make it a matter for the credit card company.

[dossier]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

here will be fine :nod: (although if you'd prefer me to move the thread @dossier just let me know ) xx

No here seems fine to me. Many thanks

- - - Updated - - -

Hi dossier, yes suggesting 75A was my mistake, I was getting ahead of myself

No problem. From my research, I have seen very little in the way of Section 75A claims publicised (i.e. the bulk of the precedent seems to be under 75)

[dossier]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

Well the effect is that the agreement is non enforceable while the non-compliance continues. Of course this does not help your case but you could possibly argue that the contract entered into was a misrepresentation as it would be a regulated agreement and not an unregulated one though it might be difficult because you still wanted to enrol on the programme. However, if it was to be deemed a regulated agreement then you would have the right to complain to the ombudsman who may look into the performance of the service/conduct of the institution and therefore make a decision that may not necessarily be made if it went to court.

I don't think there is anything within the CCA that allows you to positively take action against the institution for a misrepresentation or poor performance of the programme.

I think it would have to hinge on the institution stating that it was exempt because there were 2 separate agreements or thats how they interpret it as being. That then leads you onto an argument to claim through s.75. Its a long shot but the only shot I can see I think.

It may perhaps be worthwhile researching some EU law and whether other countries may have incurred similar situations where the EU have made decisions that could help your case.

Thank you. The institution (merchant) is now aware that they are legally in a difficult position and so commercially have decided that they do not want to enter into further correspondence, as this will only provide further written evidence to weaken their position.

[dossier]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

Thinking ahead about this one: Can anyone offer any advice on situations where cardholders have filed a county court claim against the credit card company, as a result of the s. 75 claim being rejected by the card company?

I recall reading a thread elsewhere where someone filed a county court claim against the Credit card company, after the card company rejected (or was trying to frustrate) their section 75 claim. Subsequently, the card company settled "out-of-court" to avoid the county court claim proceeding further.

[R0b]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

The problem you have at the moment is that you need to determine whether or not the agreement falls within s.75 - the only way of doing that will be to write to the institution and inform them that despite saying they are exempt from the CCA, they have given no reason or indication why it is exempt and that you will now report them to the FCA and send a complaint to the Financial Ombudsman. This could perhaps prompt them to say well the agreement is exempt because the two years is deemed separate. And then you have your cause of action for a s.75 claim, otherwise it would fall within the remit of the Financial Ombudsman.

[dossier]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

The problem you have at the moment is that you need to determine whether or not the agreement falls within s.75 - the only way of doing that will be to write to the institution and inform them that despite saying they are exempt from the CCA, they have given no reason or indication why it is exempt and that you will now report them to the FCA and send a complaint to the Financial Ombudsman. This could perhaps prompt them to say well the agreement is exempt because the two years is deemed separate. And then you have your cause of action for a s.75 claim, otherwise it would fall within the remit of the Financial Ombudsman.

R0b. Thanks. I have a previous letter from the External Solicitor of the Academic Institution stating that the Agreement (i.e. the T&Cs) are NOT bound by the Consumer Credit Act. Is this sufficient?

The situation is more complicated, as the Institution previously demanded payment for the 2nd year of tuition fees, which I refused to pay. The Institution, claiming that outstanding 2nd year tuition fees due constituted a "debt", then passed this to a DCA, who then passed this to a Solicitor. Through subsequent letters back and forth with the solicitor, I put this "in dispute", which resulted in the Institution 'backing down' and closing the matter. It is in the course of these letters back and forth with the Solicitor that the Solicitor stated the Agreement is not bound by the CCA 1974.

[R0b]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

Well potentially yes, it may be worth firing it off to the Ombudsman and saying something such as you believe that the agreement is bound by the CCA however the institution argues otherwise however has given no explanation as to which part of the exemption it relies upon. You believe it falls within the CCA because the agreement spans 2 years with 6 payments in total. this contravenes the exemption where the fixed sum must be paid in no more than 4 instalments over a period of 12 months. You have attempted to obtain their reason behind this but they are refusing to correspond.

Send a copy of the terms and see what they say. The Ombudsman may write to them and ask them to explain their rationale which of course will be explained to you by the Ombudsman and just make sure that they put it in writing which could be used as a form of evidence. I presume the institution's argument will be that the agreement spans 2 years but that as each year is invoiced separately they are relying on the exemption meaning that the each year is separate. Otherwise it will fall into the CCA and remit of the Ombudsman.

It may or may not work or the Ombudsman may say it believes that the institution is exempt for whatever reasons and then again you could possibly use that as a claim under s.75

[dossier]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

Well potentially yes, it may be worth firing it off to the Ombudsman and saying something such as you believe that the agreement is bound by the CCA however the institution argues otherwise however has given no explanation as to which part of the exemption it relies upon. You believe it falls within the CCA because the agreement spans 2 years with 6 payments in total. this contravenes the exemption where the fixed sum must be paid in no more than 4 instalments over a period of 12 months. You have attempted to obtain their reason behind this but they are refusing to correspond.

Send a copy of the terms and see what they say. The Ombudsman may write to them and ask them to explain their rationale which of course will be explained to you by the Ombudsman and just make sure that they put it in writing which could be used as a form of evidence. I presume the institution's argument will be that the agreement spans 2 years but that as each year is invoiced separately they are relying on the exemption meaning that the each year is separate. Otherwise it will fall into the CCA and remit of the Ombudsman.

It may or may not work or the Ombudsman may say it believes that the institution is exempt for whatever reasons and then again you could possibly use that as a claim under s.75

Thanks for this. I am reluctant to correspond any more directly with the Institution, as they have become somewhat dysfunctional and uncooperative in correspondence, and attempt to repeatedly confuse matters. This is why I prefer to push ahead with a Section 75 claim and to get it submitted into Amex as soon as possible.

This has already dragged on for a lot longer than I originally planned: the "first phase" was dealing with a DCA and Solicitor who claimed I had a "debt" outstanding to the Institution and were threatening County Court action. Back and forth letters already took up the better part of half a year, and resulted in no County Court Claim being launched against me, and the Institution formally "backing down".

If it is helpful, or relevant, I can go into all of this "first phase" in more detail (which I now regard as closed); although I consider a s. 75 claim to be a separate matter for the "second phase". Overall: this is quite a complex situation, and it has taken me a long time to get my head around all the moving parts - happy to post a detailed summary of the background events to date.

[R0b]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

Well what I have suggested does not mean going back to the institution, the Ombudsman will be the intermediary in this case. However if you feel like you want to bring a claim and submit it to Amex you will need to have something concrete and if they reject it then you go down the Ombudsman route anyway to determine whether you have a case or not. Or alternatively you go to court with potentially huge legal fees if your not successful.

If you however contacted the Ombudsman first, you will then have a decision that you could rely on at a later stage if you did challenge Amex's decision by going to the Ombudsman which already says whether or not the agreement is exempt - Does that make sense?

[dossier]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

At what point did you cancel year 2? Was it before or after you'd been invoiced for it?

I cancelled year 2 after it was invoiced.

[dossier]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

Well what I have suggested does not mean going back to the institution, the Ombudsman will be the intermediary in this case. However if you feel like you want to bring a claim and submit it to Amex you will need to have something concrete and if they reject it then you go down the Ombudsman route anyway to determine whether you have a case or not. Or alternatively you go to court with potentially huge legal fees if your not successful.

If you however contacted the Ombudsman first, you will then have a decision that you could rely on at a later stage if you did challenge Amex's decision by going to the Ombudsman which already says whether or not the agreement is exempt - Does that make sense?

Thanks R0b. Much appreciated and thanks for the quick response - let me ponder this and I will revert to you. It sounds like a good idea off the top of my head. My only concern is that I wanted to keep the "Project Management" as simple as possible, as it is already quite complex to juggle all the moving parts.

Would it be helpful for me to post a complete summary of the events to date? I am also in the process of drafting this for a s. 75 Claim.

Ironically, this started out as a case of 'battling' a DCA / Solicitor of a DCA in relation to the unpaid invoice for Year 2 (which the Institution and DCA and Solicitor of the DCA) claimed was a "debt". In the process of corresponding formally with the Solicitor of the DCA, it became obvious that there was no "debt" as such, as there was no CCA 1974 regulated agreement; and once I disputed the "debt", the Institution backed down.

It was during the course of this I realised I had excellent consumer protection via s. 75 of the CCA 1974 and all payments were made on my Amex card, and that I likely have a case for breach of contract and misrepresentation by the Institution (in relation to what had been paid for Year 1).

The irritating thing is that this matter is chewing up a lot of time!

[dossier]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

Well what I have suggested does not mean going back to the institution, the Ombudsman will be the intermediary in this case. However if you feel like you want to bring a claim and submit it to Amex you will need to have something concrete and if they reject it then you go down the Ombudsman route anyway to determine whether you have a case or not. Or alternatively you go to court with potentially huge legal fees if your not successful.

If you however contacted the Ombudsman first, you will then have a decision that you could rely on at a later stage if you did challenge Amex's decision by going to the Ombudsman which already says whether or not the agreement is exempt - Does that make sense?

Thank you R0b. I did, in fact, e-mail the Ombudsman previously last year with a general query. As a result of which they sent me a form by post to complete - so I am already familiar with the "channel" to contact the FOS. I am yet to engage further with the FOS.

May I also ask: why is it the FOS I should deal with on the matter of CCA 1974 compliance / non-compliance? Why is it not the FCA?

My primary reason for using a s. 75 claim process with Amex is to avoid the need for me undertaking costly County Court action: regardless of whether I win, lose or stalemate any County Court action I initiate, it would be an expensive process.

Many thanks

[R0b]

Re: Section 75 Claim - Consumer Credit Act 1974 (as amended)

The FCA does not investigate individual complaints and will refer you to the FOS. If you wish to go down the FOS route before you submit your s.75 claim, then you need to do it sooner rather than later.
A s.75 claim will obviously avoid the legal expenses of court but you also need to have a valid and reasonable claim, which means having reasonable prospects of success if it did go to court.