CMC Terms Discussion

[Awareness]

Hey ADWB,

Sorry if I'm late to the party, but I thought I could give some help.

One thing to keep in mind is that CMCs don't get their information from no where. So unless you've instructed them to do something, and contacted Lloyds, they wouldn't know about your offer from Lloyds.

Consumer Contract Regs are helpful, but I'm not sure what use they will be for you here.

You can absolutely send a DSAR to Allay, but I'd always be mindful you'll end up with a wealth of information that serves little or no purpose to you. Instead, you could just ask them to show you the LOAs they think you've signed.

Another thing to keep in mind is that shortly before the deadline, in June, Banks agreed to operate a 'auto-convert' process. That meant you could ask if you had PPI and if you did, the Bank would raise a claim there and then. You didn't have to actually 'complain' as it were.

Given the dates you've mentioned, it's possible your claim fell under that boundry, so if Allay did make a claim, don't surprised if they didn't send an actual 'complaint.'

FOS have also given some decisions about Allay, you might find those helpful to read. There's some here for you:

https://www.financial-ombudsman.org....DRN6703891.pdf

https://www.financial-ombudsman.org....DRN4157988.pdf

I don't think they're exactly the same as your story, and that can make a big difference, but none the less; I hope it helps

[pt2537]

Consumer Contract Regs are helpful, but I'm not sure what use they will be for you here.

Well a start would be for the OP to look at them and see if Allay have complied with the very strict cancellation requirements. The files i have certainly show they havent.

So those regs would be an absolute killer if there was no compliance, as the effect is to extend the cancellation period, which means you could if the facts are correct simply send notice of cancellation and walk away.

Pretty powerful

Also, i note the FOS rulings both went against the consumer, hardly helpful in those circumstances

[Amethyst]

Banks agreed to operate a 'auto-convert' process. That meant you could ask if you had PPI and if you did, the Bank would raise a claim there and then

Do you have a reference for this?

Also on what authority did the banks release information to CMCs without a signed Letter of Authority from the account holder?

[Awareness]

Amethyst, they don't release account information without an LOA, ever. But, an LOA only needs to be presented once and then its valid for the duration of a claim. If a Bank messes up during that claim, both the consumer and CMC are indemnified. I.e. Both are treated as if the claim was being dealt with before the mistake.

My point RE the Auto Convert process can either corroborated by the FCA or any Bank which operated the process - most high street banks.

This article also confirms the same

https://www.thesun.co.uk/money/94163...nts-thousands/

(I know, its the Sun)

PT2537 - I don't think its helpful to present Consumer Contract Regs because according to the OP, he never signed anything, so there was nothing to cancel from his/her perspective. And it's a massive piece of statute law. Helping consumers means giving simple pieces of information and sign posting. Not throwing, literally, a book at them.

I appreciate both decisions I've mentioned are where FOS have rejected a complaint, but I think its more useful the OP knows what they're dealing with. In my experience, a lot of issues with businesses are born out of a lack of understanding, not a business intentionally flouting the law, and being very blatant about it at that.

But that's just my opinion.

[Amethyst]

Sorry to be awkward xx If the OP never signed anything, how was there a signed LOA for the bank / lender / underwriter etc to share personal and financial data with the CMC ?

( this is the issue with an increasing number of cases - I suspected people had signed something on a text or email - the signatures I have seen look like those you get on delivery confirmations so done on a screen - some are roughly like the normal signature and could have been done by the consumer and then forgotten about - however others appear to be completely different in style from the consumers normal signature )

What checks a)should and b)do the banks undertake to ensure an LOA is legitimate ?


BBA ( tho presumably this has been superseded?)
Statement of Principles for Letters of Authority (LoA) for PPI Complaints

https://www.bba.org.uk/policy/retail...pi-complaints/

[Awareness]

You're not being awkward

Banks will verify the consumers signature from the data they already have, more often than not if they're not happy with that signature they will ask for a 'proof of signature' (some form of ID).

The 2nd is that LOAs done via 'esign' normally come with time stamps. I.e an audit trail of where the document has been, which will always show what email address it was signed at. If the Bank is has the same email addr, they'll probably be OK with it.

Not all Banks will accept them though, but I can't be sure which ones do or don't. It's better to ask each Bank individually as and when a problem arises.

I'd be wary of CMCs who are ignoring distance selling regs. I think it would be fair to say that a CMC who asks a consumer to sign a LOA electronically immediately after introducing themselves is pressure selling.

[Awareness]

Forgot to add, the BBA principles still apply through that process, although many businesses have their own variations on it.

[pt2537]

PT2537 - I don't think its helpful to present Consumer Contract Regs because according to the OP, he never signed anything, so there was nothing to cancel from his/her perspective. And it's a massive piece of statute law. Helping consumers means giving simple pieces of information and sign posting. Not throwing, literally, a book at them.

I appreciate both decisions I've mentioned are where FOS have rejected a complaint, but I think its more useful the OP knows what they're dealing with. In my experience, a lot of issues with businesses are born out of a lack of understanding, not a business intentionally flouting the law, and being very blatant about it at that.

But that's just my opinion.

Now i love a debate!!! but i fear you may have missed the point (no offence intended)

You can have an either or case, you can say i didnt do X but in the alternative if the Court finds i did X then the contract was unenforceable because.......

If the OP entered into a contract, and the notice of the right to cancel per Schedule 3 wasnt given in the prescribed form, the contract doesnt become binding on the consumer, the trader commits a criminal offence, and the consumer has the right for up to 12 months in principle to terminate the contract, Scott fee, nil payment required etc.

I couldnt care letter what the OPs primary point is, even if they are wrong the Regulations are strict liability, non compliance bites them on the arse contract or no contract. Of course if its no contract then they dont even get to the distance selling regs

[Amethyst]

Always best to go in with more than one argument

[Amethyst]

Thank you for your advice I have posted letters requesting the information.
what do I do with the reply from Allay, assuming they reply, and what if they do not?

Post it here - especially the 'agreement' they say you signed to engage them and the letter of authority they used to get your lenders to send your data to allay.

And the letter of authority from the bank ( see if it's the same as the one allay send )

Then see if it is your signature. If it is, how did you sign it, what else did you sign etc .... if it's not then why did the bank accept it as a LOA ?
If it's similar to your signature but looks odd then it gets more complicated - who did the signature, how did they know what your signature looked like, what did the bank send allay ( if anything ) before receiving the Letter of Authority and so on.

The agreement between yourself and allay should be most useful as they have failed on the cancellation details ( and durable medium )

once you have those bits you can look at what arguments you have available and what complaints need making.

[Awareness]

PT2537 - no offence taken.

I would be very surprised if Allay hadn't put cancellation terms in their agreement, but as Amethyst says - two arguments are better one. Balance being the most important thing.

[pt2537]

PT2537 - no offence taken.

I would be very surprised if Allay hadn't put cancellation terms in their agreement, but as Amethyst says - two arguments are better one. Balance being the most important thing.

then i shall let you be amazed

Here is allays terms on rights to cancel

From the point we submit your complaint, you have a 14 day cooling off period during which you can cancel your contract with us. If at any time during the 14 day cooling off period we obtain an offer of compensation for you, our normal fee will be payable. To cancel your contract with us, either call Customer Services on 0191 462 0000, email your cancellation request to cancellations@allay.co.uk, download a Cancellation Form from our website www.allay.co.uk or write to us at The Processing Centre, Trafalgar Street, Newcastle upon Tyne, NE1 2LA.

now heres what regulation 29 states
,

Right to cancel

29.—(1) The consumer may cancel a distance or off-premises contract at any time in the cancellation period without giving any reason, and without incurring any liability except under these provisions—

(a)regulation 34(3) (where enhanced delivery chosen by consumer);

(b)regulation 34(9) (where value of goods diminished by consumer handling);

(c)regulation 35(5) (where goods returned by consumer);

(d)regulation 36(4) (where consumer requests early supply of service).

(2) The cancellation period begins when the contract is entered into and ends in accordance with regulation 30 or 31.

(3) Paragraph (1) does not affect the consumer’s right to withdraw an offer made by the consumer to enter into a distance or off-premises contract, at any time before the contract is entered into, without giving any reason and without incurring any liability.

[pt2537]

The Allay terms are totally inconsistent with the regulations, and its worth noting they dont expressly require the consumer to waive any cancellation period before they start work.

Its beyond argument that they are wrong, the cancellation rights are in error, and the form offered is not in durable medium nor is it "given" to the consumer.

[Awareness]

"(2) In the case of a service other than supply of water, gas, electricity or district heating, the consumer ceases to have the right to cancel a service contract under regulation 29(1) if the service has been fully performed, and performance of the service began—

(a)after a request by the consumer in accordance with paragraph (1), and

(b)with the acknowledgement that the consumer would lose that right once the contract had been fully performed by the trader."


No, they're not. That's not an uncommon term and all CMCs terms are scrutinised by the FCA before the firm becomes authorised.

[Amethyst]

They're all on temp permissions and haven't been 'scrutinised' yet - think you give the FCA a little too much credit.

https://www.handbook.fca.org.uk/hand.../?view=chapter

Supply of service in cancellation period

http://www.legislation.gov.uk/uksi/2...lation/36/made