FOS responses to keep complaint open....

[Amethyst]

A number of people have received letters from the Ombudsman rejecting their complaints and asking that they respond by 7th January.

We consider you should reply individually outlining your circumstances and instances where you feel the charges were particularly unfair and demonstrate an imbalance in the contract and rights of the bank to your detriment. This does cause a problem if you are not in hardship and have only incurred the odd charge now and then but hopefully should keep people who are in financial difficulty and who have suffered at the hands of the banks and these charges in the complaints process towards gaining some kind of redress for the banks actions. If you CAN wait then you should as thingsa re still being worked on it the background but as things are unlikely to be 'legally' ready until the end of january, if at all, then if you want to continue complaints with the banks and the FOS you need to spell out why. - WE DO NOT RECOMMEND ANYONE TAKES THIS INTO COURT AT THE MINUTE.


Something like ...... and this is JUST AN EXAMPLE TO SHOW THE TYPES OF THINGS YOU NEED TO SHOW.....


Dear FOS

Thankyou for your letter explaining the circumstances with my complaint against XXXXXX Bank and the Supreme Court Judgment in the OFT v Banks test case.

I would still ask that you consider my complaint as I feel the bank have treated me unfairly on numerous occassions and it's my belief that their is an imbalance in the contract provided by the terms which allow the banks to take charges from my account. I believe this is contrary to Regulation 5(1) of the UTCCR and creates an unfair relationship under the Consumer Credit Act section 140.

• I consider that a request to pay is not necessarily a request for overdraft except by virtue of the non-negotiated contract terms. The overdraft assessment is not optional, additionally there was no opt out possibility at commencement of the contract and therefore it acts contrary to good faith and is therefore unfair. Had I been able to opt out of the 'request for an informal overdraft' I would have been met with some certainty that transactions made would not be honoured and made alternative arrangements to meet my obligations. Addtionally the bank would not have forced me into a cycle of debt and been able to continue imposing charges on my account for being outside of my agreed overdraft limit.
  
  
• I contend that the bank have control over the distribution of my salary or benefits paid into the account, and the relevant terms allow for the automatic application of the relevant Charges, with little or no notice to the myself. (put any info about how the charges were imposed - same day / 7 days later etc and if you received notification of this )
  
  
• I suggest that if an 'overdraft extension request' was declined, there is no reason why the Bank's answer for any subsequent requests should be any different if the account balance has not changed other than by virtue of the Relevant Charges being applied. On APPROX DATE I contacted the bank to request an overdraft extension as I knew had fewer funds in my account than necessary to fulfill my transaction obligations - the bank denied this request, however they subsequently honoured the transactions taking me into 'unauthorised' overdraft and in addition imposed charges totalling £XXXXX to the account, attracting a greater rate of interest. This in turn led me to struggle the following month attracting further charges. Had the bank accepted my request for a temporary extension to the overdraft facility I would have met my obligations succesfully and incurred a single overdraft assessment fee, and the cycle of debt, created in the most part by the bank, would have been much less likely to occur. In addition where the bank decided not to pay certain items, and I had no prior knowledge nor control over which items the bank decided to pay or return, I incurred additional charges from my other creditors and suppliers for not making the payments in time. This presented a further liability of £25 (etc) which obviously made it harder to return to a positive balance and again meet my obligations in the next statement period.
  
  
• The relevant terms have frequently forced me into a cycle of debt, where the Relevant Charges directly or indirectly give rise to the application of additional charges to the account, without any restriction or limitation.
  
  
• It is apparent, from the Banks submissions in the test case and from the Judgment in the Supreme Court, that I am required to subsidise the running and/or operation costs of accounts other than that of my own. In so doing so the Bank‘s charging structure reverses the usual pattern of cross subsidisation by delivering heavily subsidised banking services to those with the most financial competence or resources at the expense of those with the least.
  

I also consider that the bank has purposefully misled me into believing the charges were a penalty for my breaching the terms of the contract between us, and this has led to my belief that I was being charged as a punishment for doing something wrong rather than part of a fee for the overall service of banking which they provide.

Additionally I - EXPLAIN ANY HARDSHIP CIRCUMSTANCES - which I believe, since the banking code has been replaced by FSA regulations, is contrary to the guidance on treating customers who are in financial difficulty (BCOBS 5) and the Lending Code, to which the banks subscribe. (READ LENDING CODE SECTION 9 - http://www.lendingstandardsboard.org...endingcode.pdf - add in any time you have found yourself overdrawn and the bank has refused to allow you to repay at an affordable rate before forcing you to default on the account etc - that kind of thing )

I therefore believe the bank has acted unfairly throughout my association with them as request they are asked at a minimum to refund charges imposed in situations as exampled above, and contend that the contract term allowing them to impose charges in such a manner to my account is unfair under the UTCCR and subject to Regulation 8(1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer and as such all charges imposed on my account should be refunded to me.

Regards

XXXXXXXXXXXXX

[EXC]

Re: FOS responses to keep complaint open....

The letters coming from the FOS in response to bank charge complaints won't necessarily give you a date of 7 January to respond by - the response date is dependent on when their letter went out but it seems that it only gives you 10 days to 2 weeks in which to reply (not much time when you consider the banks have had 125 weeks in which to reformulate their position and I'll be asking their Technical department today if one can seek an extension).

The above draft Ame posted is in response to ALL letters coming from the FOS which state:

''However, if there are individual factors or circumstances particular to you - or to the way your bank operated your account at the time the charges were made - which you feel should be taken into account, then please write and let me know by xxx, so we can assess whether they are likely to make a difference.''

The FOS have sinced clarified to us that this means that they are willing to consider issues surrounding your bank charge complaint other than the ones in your initial complaint - hence the different approach in Ame's draft.

[EXC]

Re: FOS responses to keep complaint open....

Spoke to the FOS regarding the very limited period in which complainants have been given to respond to their letters and they will consider an extension but you must ask the adjudicator that is dealing with your case for one.