OFT Test Case Discussion

[Kafka]

Re: OFT Test Case Discussion

Has anybody considered if the banks are going to try to get +6 year charges and Contractual Interest excluded from all future claims via the test case, is there any opportunity/chance they could do this?

The OFT will not pursue the banks to repay charges more than 6 years old even when these are shown to be unlawful. The banks have agreed to this on the clear agreement that they get an easy ride with claims after the test case and a free hand to make as much profit as possible (at our expense) while the test case is pending. This is their last chance to make a fortune from penalties and gives them time to introduce other scams, as they are already doing.

If the OFT and courts were genuinely looking at the legal aspects of the case from a sense of justice, then this is an important point, because existing law is already clear that concealed unlawful charges are not protected under the 6 years rule. If they were doing this then they would have placed an injunction on the banks to stop them destroying 6+ records, which they are clearly still doing at every opportunity (if you send for statements you see this).

To me, this is very clear evidence that the deal made with the banks already excludes anything beyond 6 years.

K.
Life's splendor forever lies in wait about each one of us in all its fullness, but veiled from view, deep down, invisible, far off. It is there, though, not hostile, not reluctant, not deaf. If you summon it by the right word, by its right name, it will come

[EXC]

Re: OFT Test Case Discussion

I made a formal complaint to the FSA about the handling of my enquiry into why the
waiver was introduced, This is their initial response and my reply.



Dear EXC

Your complaint against the FSA

Thank you for your complaints form submission of 20 August 2007 which we have entered into the FSA Complaints scheme.

Based on the information supplied in your complaints form, there are two allegations to your complaint which have been assessed as allegations of ''lack of care'' on the part of the FSA.

We have defined (below) our assessment of your complaint and how we intend to structure our investigation. If you feel that our assessment of your complaint is incorrect we would be grateful if you could inform us, in writing, by 11 September 2007.

As a separate issue to this complaint, we also note your e-mail of 24 August to Clive Briault. As we are dealing with this complaint, Mr Briault's office has asked us to acknowledge receipt of your 24 August e-mail. Please accept this letter as acknowledgement of that e-mail.

Our assessment of your complaint

Allegation one

You claim that your original enquiry to the Consumer Contact Centre (''CCC'') was not answered satisfactorily. As stated below (under ''Our Investigation'')' we will investigate whether the CCC's response to you, relating to this issue, were satisfactory.

However, we note that your original enquiry to the CCC related to the FSA's decision in principle to grant firms, who apply for it, a waiver from the time limits contained in the FSA's complaints-handling rules in relation to unauthorised overdraft charges. Please note that such complaints would be excluded from our formal complaints scheme. This is because the legislation under which we operate does not require us to investigate complaints about how the FSA carries out it's function of granting waivers of rules to individual firms.

Allegation Two

You allege that the CCC has ''lied to me (you) during the course of my (your) enquiries''.

Our Investigation

Our investigation into your complaint will review all retrievable copies of correspondence between you and the CCC, regarding this matter. We will assess whether your allegations (above) are substantiated and there is evidence to demonstrate that the CCC has demonstrated a lack of care in it's dealings with you.

Please forward to us, by 11 September 2007, any evidence you feel substantiates the allegations.

**************

Thank you for your e-mail concerning my complaint.

In it you ask me to inform you if your assessment of my complaint is incorrect. It most certainly is.

You claim, in allegation one, that essentially because my original enquiry related to the FSA's decision, in principle, to grant the waiver, you are not required to investigate ''complaints'' about the way the FSA carries out it's functions.This is just nonsense.

My original enquiry was clearly and specifically to ask the FSA to provide me
with the reason as to why the waiver was introduced and was never a ''complaint''. My subsequent complaint makes it very clear that the allegations concern the dishonesty and unwillingness of the FSA to come clean on the reasons for the waiver's introduction.

This is not the first time the FSA has used this very tactic to redefine my (and others) enquiries as a complaint to enable it to exempt itself from providing the information sought. This is simply a smokescreen and a transparent attempt to avoid the issue. And I am astonished that this strain of viral deceit, endemic in the CCC, has infected the FSA's own complaints department.

You also refer to and acknowledge receipt of my e-mail to Clive Briault. Is it standard practice for the FSA's complaints department to acknowledge the receipt of correspondence to a managing director when the e-mail in question is entirely unrelated to any complaint and merely contains information? Is Mr Briaults office not capable of dealing with it's own correspondence without the assistance of another department?

Lastly you say that you will be reviewing ''all retrievable copies of correspondence'' with regard to my complaint.Can you confirm that this will include my telephone conversations with the CCC? I have been assured by the CCC that all incoming calls are indeed recorded.

Regards

EXC

[bankrupt]

Re: OFT Test Case Discussion

The Consumer Credit Act 2006 comes into force on 6th Appril 2008 and contains retrospective legislation which could mean that all consumer bank charge cases brought to court after 6/4/08, will fail and the banks will win. The OFT is simply an arm of Government working with the banks to fill in time before 6/4/08.

[Paule]

Re: OFT Test Case Discussion

The Consumer Credit Act 2006 comes into force on 6th Appril 2008.

Where did you get that from?

The Consumer Credit Act 2006 came into force on 6 April 2007 and some new changes have been introduced in the Consumer Credit Act 1974 which will definitely expand the ambit of it.

The changes are listed below:

1.New definition of “individual”: Furthermore, the Act does not protect new lending to partnerships of more than 3 persons.

2.Removal of financial limit: The Act will apply to lending (consumer credit and hire) up to any amount that was £25000 before. However, this limit will still be retained for business lending and there will be an exemption for high net worth individuals (see below). The Department of Trade and Industry (“DTI”) is currently addressing the fact that not all lending over £25,000 for the purposes of buy-to-let will fall outside the scope of the Act, which was the original intention.

3.Fairness for the creditor: These provisions (which were originally due to come into effect in April 2008) will impose minimum standards, including:

-Periodic statements for fixed sum credit.
-Periodic information on statements for running account credit (e.g. health warnings).
-Arrears notices.
-Requirements relating to default notices (the period for consumers to respond to default notices has already been extended under the Act from 7 to 14 days).
-
In addition, interest on default sums will also be restricted to simple interest.

Failure to comply with the above requirements will impact on an agreement’s enforceability.

4.Financial Ombudsman Service (“FOS”): A new consumer credit jurisdiction is added to FOS’ existing mandate. Customers will be entitled to refer complaints (relating to an event after 6 April 2007) to FOS after they have raised the matter with the licencee. Businesses must ensure they have an complaints handling policy and that it meets the minimum standards set out by the DISP Sourcebook, part of the Financial Service Authority’s Handbook. Businesses should also ensure that relevant changes are made to agreements/other documents to include a reference to FOS.

5.High net worth exemption: The Act will enable wealthy individuals to opt out of regulation. This will involve completion of a declaration and a statement of high net worth. There is no provision for self-certification though the DTI has stated that it is currently making the arrangements for certification to be more flexible.

6.Unfair relationships: This test replaces the extortionate credit bargain provisions. These (significantly wider) provisions will apply to all new consumer lending (not just regulated agreements) except FSA regulated mortgage contracts. However, there will be a transitional period, until 6 April 2008, before application is extended to existing agreements.

The next key implementation date is due to be 6 April 2008, when the following provisions are likely to come into effect.

7.The discretionary power of courts: Courts will now have discretion to enforce all invalidly executed agreements; the restrictions on this discretion, which applied in respect of certain infringements, have now been lifted.

8.The enhanced power of OFT: OFT has been given enhanced powers as regulator under the Act, including the ability (in certain circumstances) to impose civil penalties up to £50,000.

9.Consumer Credit Appeals Tribunal: This will allow licensees to challenge decisions taken by the OFT, and replaces the existing regime of appeals to the Secretary of State.

10.More business activities which need license: Debt administration and credit information services will become activities requiring a consumer credit license.

[stevokenevo]

Re: OFT Test Case Discussion

7.The discretionary power of courts: Courts will now have discretion to enforce all invalidly executed agreements; the restrictions on this discretion, which applied in respect of certain infringements, have now been lifted.

I take this means, if a lender cannot produce a legible properly signed and executed agreement, they can ask the court to enforce the agreement regardless?

If thats the case that is a major blow for the consumer.

[Nattie]

Re: OFT Test Case Discussion

There are additional aspects of it that come into force in April 2008, however the majority of the act came into force in April 2007.