CMC Terms Discussion

[Amethyst]

On the Free ppi check forms people completed Free was asterixed to teeny tiny print which included

*We will notify you once PPI has been identified and automatically submit your complaint to the lender after 7 days, unless you notify us otherwise.

I don't believe that satisfies reg 36 ( no where near) - also how are they identifying and submitting complaints automatically after 7 days without any signed authority ?

This be the form.

[EXC]

So one of the directors of Allay Claims Ltd, Stuart Bell, is also a director of Citizens Advice Gateshead.

What's all that about?

[Awareness]

You can send a FOI request to them

[Amethyst]

Citizens Advice aren't generally subject to the FOIA ?

[Awareness]

Sorry! I was referring to your post RE getting a list of CMCs.

[Awareness]

Today, 09:54:AM
So one of the directors of Allay Claims Ltd, Stuart Bell, is also a director of Citizens Advice Gateshead.

What's all that about?

Very interesting! So either CAB is unethical for hiring him.. Or Allay aren't unethical?!

Just to be clear, I'm not defending CMCs. I'm offering an alternative perspective. I will stand corrected if and when Allay's terms are proved unfair. Not speculated on.

[Amethyst]

Sorry! I was referring to your post RE getting a list of CMCs.

Ahhh , yes that makes more sense lol.

[Amethyst]

pt2537


I might have misunderstood something you said previously about the model form of cancellation, but I don't think it is a breach not to provide a form only the info detailed in schedule 2 (l) where a right to cancel exists, the conditions, time limit and procedures for exercising that right in accordance with regulations 27 to 38;

Of course the model form is a good idea for companies to ensure they have complied but I don't think it's a necessity under the regulations ?


Ahhhh got it sorry - 13(1) b- if a right to cancel exists, must give or make available to the consumer a cancellation form as set out in part B of Schedule 3.





As you were....

[EXC]

Awareness you might be interested to tune in to the Radio 4 Money Box show today.

[Awareness]

Sounds good! Thank you.

[Amethyst]

Just thinking aloud.

If people have JUST completed the 'free ppi check' form before April 2019 it wouldn't have complied with the Conduct of Authorised Person Rules - https://assets.publishing.service.go...2018__web_.pdf


HOWEVER the question we are looking at is after April 2019 ( when the above was withdrawn and the regulator changed to the FCA ) does completeing the form comply with....

1: The FCA Rules

CMCOB 2.1.10 R 01/04/2019

A firm must not take any payment from a customer until the customer has signed an agreement with the firm which provides for such a payment to be made.
[Note: CAPR CSR 11]

AND

2: The consumer contracts regulations

https://www.legislation.gov.uk/uksi/.../contents/made


The answer to 1 is possibly ( although I'd argue it isn't at all clear that clicking SUBMIT QUERY on such a form is not sufficient to sign an agreement )

The answer to 2 is No ( IMO on what information we have to date )

Information to be provided before making a distance contract

13.—(1) Before the consumer is bound by a distance contract, the trader—

(a)
must give or make available to the consumer the information listed in Schedule 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used, and


(b)
if a right to cancel exists, must give or make available to the consumer a cancellation form as set out in part B of Schedule 3.

There is a cancellation form available on their website ( if you know it is there ). Is it linked from the terms and conditions? Is it emailed to the customer?

Requirements for distance contracts concluded by electronic means

14.—(1) This regulation applies where a distance contract is concluded by electronic means.

(2) If the contract places the consumer under an obligation to pay, the trader must make the consumer aware in a clear and prominent manner, and directly before the consumer places the order, of the information listed in paragraphs (a), (f), (g), (h), (s) and (t) of Schedule 2.

(3) The trader must ensure that the consumer, when placing the order, explicitly acknowledges that the order implies an obligation to pay.

(4) If placing an order entails activating a button or a similar function, the trader must ensure that the button or similar function is labelled in an easily legible manner only with the words ‘order with obligation to pay’ or a corresponding unambiguous formulation indicating that placing the order entails an obligation to pay the trader.

(5) If the trader has not complied with paragraphs (3) and (4), the consumer is not bound by the contract or order.

(6) The trader must ensure that any trading website through which the contract is concluded indicates clearly and legibly, at the latest at the beginning of the ordering process, whether any delivery restrictions apply and which means of payment are accepted.

I do not believe a SUBMIT QUERY button suffices.

Confirmation of distance contracts

16.—(1) In the case of a distance contract the trader must give the consumer confirmation of the contract on a durable medium.

(2) The confirmation must include all the information referred to in Schedule 2 unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract.

(3) If the contract is for the supply of digital content not on a tangible medium and the consumer has given the consent and acknowledgment referred to in regulation 37(1)(a) and (b), the confirmation must include confirmation of the consent and acknowledgement.

(4) The confirmation must be provided within a reasonable time after the conclusion of the contract, but in any event—

(a)
not later than the time of delivery of any goods supplied under the contract, and


(b)
before performance begins of any service supplied under the contract.


(5) For the purposes of paragraph (4), the confirmation is treated as provided as soon as the trader has sent it or done what is necessary to make it available to the consumer.

Is the letter they send asking people to sign LOA's etc after completion of the SUBMIT QUERY form classed as providing confirmation in a durable form. Do the company send any emails to customers directly after they submit the form with a copy of the terms and confirming consent ?

And if it does, does it include everything require from Schedule 2

SCHEDULE 2
Information relating to distance and off-premises contracts

The information referred to in regulations 10(1) and 13(1) is (subject to the note at the end of this Schedule)—

(a)
the main characteristics of the goods or services, to the extent appropriate to the medium of communication and to the goods or services;


(b)
the identity of the trader (such as the trader’s trading name);


(c)
the geographical address at which the trader is established and, where available, the trader’s telephone number, fax number and e-mail address, to enable the consumer to contact the trader quickly and communicate efficiently;


(d)
where the trader is acting on behalf of another trader, the geographical address and identity of that other trader;


(e)
if different from the address provided in accordance with paragraph (c), the geographical address of the place of business of the trader, and, where the trader acts on behalf of another trader, the geographical address of the place of business of that other trader, where the consumer can address any complaints;


(f)
the total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated,


(g)
where applicable, all additional delivery charges and any other costs or, where those charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;


(h)
in the case of a contract of indeterminate duration or a contract containing a subscription, the total costs per billing period or (where such contracts are charged at a fixed rate) the total monthly costs;


(i)
the cost of using the means of distance communication for the conclusion of the contract where that cost is calculated other than at the basic rate;


(j)
the arrangements for payment, delivery, performance, and the time by which the trader undertakes to deliver the goods or to perform the services;


(k)
where applicable, the trader’s complaint handling policy;


(l)
where a right to cancel exists, the conditions, time limit and procedures for exercising that right in accordance with regulations 27 to 38;


(m)
where applicable, that the consumer will have to bear the cost of returning the goods in case of cancellation and, for distance contracts, if the goods, by their nature, cannot normally be returned by post, the cost of returning the goods;


(n)
that, if the consumer exercises the right to cancel after having made a request in accordance with regulation 36(1), the consumer is to be liable to pay the trader reasonable costs in accordance with regulation 36(4);


(o)
where under regulation 28, 36 or 37 there is no right to cancel or the right to cancel may be lost, the information that the consumer will not benefit from a right to cancel, or the circumstances under which the consumer loses the right to cancel;


(p)
in the case of a sales contract, a reminder that the trader is under a legal duty to supply goods that are in conformity with the contract;


(q)
where applicable, the existence and the conditions of after-sale customer assistance, after-sales services and commercial guarantees;


(r)
the existence of relevant codes of conduct, as defined in regulation 5(3)(b) of the Consumer Protection from Unfair Trading Regulations 2008, and how copies of them can be obtained, where applicable;


(s)
the duration of the contract, where applicable, or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract;


(t)
where applicable, the minimum duration of the consumer’s obligations under the contract;


(u)
where applicable, the existence and the conditions of deposits or other financial guarantees to be paid or provided by the consumer at the request of the trader;


(v)
where applicable, the functionality, including applicable technical protection measures, of digital content;


(w)
where applicable, any relevant compatibility of digital content with hardware and software that the trader is aware of or can reasonably be expected to have been aware of;


(x)
where applicable, the possibility of having recourse to an out-of-court complaint and redress mechanism, to which the trader is subject, and the methods for having access to it.

The Cancellation sections ( PART 3 ) do apply to these contracts

Limits of application: circumstances excluding cancellation

28.—(1) This Part does not apply as regards the following—

(a)
the supply of—


(i)
goods, or


(ii)
services, other than supply of water, gas, electricity or district heating,


for which the price is dependent on fluctuations in the financial market which cannot be controlled by the trader and which may occur within the cancellation period;

The other side is for the BANKS/LENDERS providing personal financial information to the CMC.

What requirements are there for a letter of authority to be valid ?

A product provider clearly has a duty to their current and past customers to identify that customer correctly and ensure that the third parties authority to act is valid.

So is this down to the individual banks/products terms - the Data Protection act? BCOBS ?

Question. If there is no requirement for a third party letter of authority to hold a signature ( eg: a tick/cross in a box with an IP address is sufficient ) then why do the banks and CMC's send out copies with signatures on as evidence of a TPA being signed ? (particularly those where the consumer insists they have never physically signed anything for the CMC )

BBA statement of principles - https://www.bba.org.uk/policy/retail...pi-complaints/

Signatures
Signatures of all account holders
Date of signature(s)
It must be possible to authenticate and verify all dates and signatures

Is an IP address 'possible to authenticate and verify … signatures' ? How would the bank verify? ( seems circumstantial to me - burden of proof?)
The rest is down to the banks duty of confidentiality



So we need.... all emails sent after that form online was completed and all letters/documents sent to the client. Durable form & cancellation info.
Banks rules/legislation on third party authorities for limited circs access. ICO/DPA ?
I think we can agree that a "Submit Query" button is not enough to enter a contract and give third party authority to access personal financial data.