Bank Smart - Breach of Contract

[Casio123]

Ok Thanks. I have gone through the GDPR pack and there are a few letters off the credit card company asking for a LOA in the correct format.

So it looks like BS have put in a claim initially in 2019. BS have then written to me a few times to sign a further LOA which i didnt do after reading all the bad press surrounding them and doubting whether there was any ppi or mis selling attached anyway.

My initial claim to Ascend was for only for two banks ,and not the one in question here.

It was BS who sent me the two LOA's with 20 claims/ banks on each which they must have got off my credit file somehow.

Foolishly i did sign these thinking no win no fee, but with the confusion of no terms/conditions attached etc as previously discussed.

SO ...

Do i just sign the LOA they want even though a year or so after when the bank last asked for it.

If the claim is out of time BS may say my delay has caused the claim to fail so incurring more wasted time/costs.

OR ...

Do i just query with FSO again , saying i need breakdown of charges and all BS have done is sent a few computer generated letters off so time should be minimal.
I then may have to pay a reduced fee.
I could also complain about BS accessing my credit file without my permission -and misleading me by listing all these and instigating claims etc - if this is a valid point ?

ALSO ...

All the charges questionnaires they sent , they are not chasing these at present , so do i just ignore them for now ? As i say i dont have the information they want anyway so i would have to complete them as ' i dont know ' . I am sure there are no PPI or charges attached to them anyway,

Sorry just confused what to do for the best.

Thanks once again

[EXC]

I don't know how many different ways I can say this.

As long as the invoice is marked as held on the online account, don't sign the LOA.

Tell FOS you want their decision reviewed and that you want the breakdown of the charges. You can't introduce new complaints such as your credit file now.

On the charges questionnaires it's up to you. Either complete them with 'I don't know' or ignore them.

[Casio123]

Hi , i went back to the FSO and said i didn't agree with their initial decision and asked them to reconsider. I asked them to provide the breakdown of the invoice raised by BS. I queried the assignment point.

Their reply says their decision has not changed, and as you quite rightly said they wont consider the assignment point unless i raise that as a new complaint. I thought it may be worth a try.


Their reply is as follows :-

You’ve told us that Bank-Smart issued letters of authority to you with 20 claims on each and you are questioning why this done. Unfortunately, we can’t give you the answer to this but on a call to our service on 01 July 2021 you stated you’d signed the letter of authority. If this is something you had concerns about, we wouldn’t have expected the documents to be signed at that point.
In your initial complaint to Bank-Smart you’d set out the following points:

• They accessed your credit file and issued claims without your express permission and you were not aware that they’d made these claims.

Unfortunately, I can’t say I agree because you’d signed their Letters of Authority and told us this had been done as such you’d entered into a legally binding contract.
Charges would be in line with the terms and conditions again this is something Bank-Smart would provide.



They also confirmed that BS said if i forwarded the outstanding LOA which caused the breach , the invoice will be cancelled and the claim continued.

They did not provide a breakdown of the invoice.



In the FSO initial response prior to this one they quote :-

The Letter of Authority signed on 18 September 2017 stated the following:

“I confirm I have received, read and agreed to the Terms and Conditions that were enclosed with this letter of engagement”.


Those terms were the ones on the Ascend Finance letter of engagement not the BS LOA's


When i raised an initial complaint to BS last year , in the GDPR pack their reply to that complaint is documented even though i did not receive it.

It said " we have a valid signed LOA for every claim we are processing. I have pleasure in enclosing a copy along with the terms that were assigned to us from Ascend Finance "

The only terms in the GDPR pack are those of Ascend Finance which were issued as part of the Ascend Finance initial engagement letter pack.

BS have not provided any terms and conditions with any of their correspondence and there is no reference to charges whatsoever on the 2no LOA's that i signed for BS.

Those LOA's that i signed are addressed and worded towards the lenders so they do not mention charges to the claimant.

I think the FSO may be getting confused over the Ascend Terms and the BS LOA unless BS have sent them a different LOA document which has client charges mentioned.

The FSO are also focusing on the LOA initial instruction which they have a point that i did authorise BS by signing them but if I signed without any terms and conditions clearly displayed , is this a valid binding contract ? Surely the FSO cant just assume terms were attached ?

I also did put in my initial complaint to the FSO about the method of them asking for more and more information and if we dont reply, charges will be incurred etc

They don't seem to be tying the two points together or even addressing this other point.

I agree it was naive to sign these LOA's but i cant recall circumstances or what covering letter came with them , i can only think i had it in my mind no win no fee so nothing to lose. There was no such covering letter in the GDPR pack.


The invoice status is still showing on hold until Dec 21.

The status of the other claims are :-

7 claims - cancelled no fee.
1 awaiting replacement LOA ( the one invoiced for )
1 no claim being finalised ( this is the initial one Ascend Finance finalised before BS involvement)
19 no awaiting charges questionnaires ( i dont have answers to the questions asked )
6no claims held awaiting PPI evidence ( it says if i have any evidence to send it in , but i dont have any)
4no reviewing lender decision
10no. Letter before action - Final Chaser



Do , i send FSO a copy of the LOA i have signed which has no mention of charges on it and explain the terms they referred to in their initial response were the terms on Ascend Finance Letter of Engagement and not the BS LOA and query their decision again ?

Or maybe start a new complaint to BS about the assignment issue and lack of terms and conditions - then refer it to FSO when i get BS reply if necessary?

I have ignored the charges questionnaires for now and the ones asking for evidence of PPI.

Any advice on where i go from here would be greatly appreciated.

Many thanks

[EXC]

The only terms in the GDPR pack are those of Ascend Finance which were issued as part of the Ascend Finance initial engagement letter pack.

In order for me to advise, can you send me the Ascend Finance terms that you got in the GDPR pack please. There should be 2 documents that look like the ones below.

[Casio123]

Hi - the Ascend Terms and Engagement letter are attached now. Thanks again. Regards Ascend Finance Terms.pdf

[EXC]

Thanks.

Just having a quick look and for starters there are no terms for default charges claims. The terms & conditions only apply to PPI - see clauses 2.1 and 2.2.

Could you answer the following:

1) Have you ever received a detailed breakdown of the charges for each invoice? They look like the example below.

2) What date is the Ascend Engagement Letter?

[Casio123]

Hi , no i have not received any breakdowns, i asked BS direct for this and i asked the FSO to provide this, but nothing received.

The Ascend engagement letter was signed on 18/9/17.

Thanks once again, Regards

[EXC]

Ok leave it with me for a couple of days and I'll draft a response to the FOS.

[Casio123]

Thanks so much. Regards

[EXC]

Hiya

Just so I'm clear:

1) As I understand it there is just 1 invoice (for breach of contract) outstanding for £348. Is that what the complaint to the Ombudsman is about?

2) Is that invoice for a PPI claim or a default charges claim? (it should say on your online account)

3) What date was the claim created? (again it should say on your online account)

4) Is it the non-return of a charges questionnaire that BS say caused the breach?

[Casio123]

Hi
My complaint to the FSO was issued before i received the charge but i sensed the charge was coming.

So my complaint to them was that BS got all the claims details from my credit file without my express permission.

I also said that i did not sign into any contract asking BS to pursue these lenders.

I said i was concerned i was going to be charged for not providing information as is common situation when reading forums on the internet.


The FSO initial response is as below with my comments in capitals in brackets :-

I’ve looked at all the points raised by both parties and considered whether Bank-Smart has done something wrong.

Bank-Smart has told us that an outstanding fee remains on the account as they need some information for a claim submitted however once this is received the fee will be cancelled.

I’ve had a look at Bank-Smart’s terms and conditions, and they state that they may cancel the agreement if they are not provided with the documentation requested. If this is done a fee will be charged at a rate of £50 for an hour’s work. ( THESE ARE ASCEND FINANCE TERMS I BELIEVE)

I appreciate what we were told regarding the terms not being issued, I’m sure what they have said is true to the best of their knowledge but in the circumstances, I need to rely on the evidence.

The Letter of Authority signed on 18 September 2017 stated the following: ( THIS IS ASCEND FINANCE LOA)

“I confirm I have received, read and agreed to the Terms and Conditions that were enclosed with this letter of engagement”. ( AGAIN ASCEND FINANCE)

I can also see that on 18 August 2019 another Letter of Authority was signed. I think on balance its reasonable to say the terms would also have been issued out. ( THIS WAS THE BS LOA WITH NO TERMS)

I’d expect you to have raised concerns about this if they weren’t or not agree to them without knowing the terms you were agreeing to be legally bound by.

I appreciate you may not have received the terms, but I need to rely on the evidence I have available to me. And on balance I’m satisfied the terms would have been issued out with the Letters of Authority. ( HOW CAN THEY ASSUME THERE WERE TERMS ? )


The FSO second response is below :-

In your initial complaint to Bank-Smart you’d set out the following points:

• They accessed your credit file and issued claims without your express permission and you were not aware that they’d made these claims.

Unfortunately, I can’t say I agree because you’d signed their Letters of Authority and told us this had been done as such you’d entered into a legally binding contract.

Charges would be in line with the terms and conditions again this is something Bank-Smart would provide. ( HOW CAN THEY ASSUME THIS , THERE WAS NONE IN THE GDPR PACK OTHER THAN ASCENDS WHICH WERE WITH THE INITIAL LETTER OF ENGAGEMENT IN 2017 ? )



So yes there is one invoice , this was £348.90 but has now gone up to £388.90 . On the account it says Breach of Contract (LOANR) with collections team. On hold until 1/12/21.

On the account it says Credit Cards 63 PPI , Claim Created 22/8/19

I signed two LOA's from BS one headed PPI and one headed Default Charges. For each lender they seem to have put a claim in for both PPI and Default Charges each with a separate claim ID.
The one they have invoiced me for relates to the PPI claim as the claim for the default charges is at a status - Awaiting Charges Questionnaire.

The breach on the PPI claim is for not providing a further LOA. BS have said to the FSO if i provide this they will cancel the invoice and carry on with the claim.

Hope his clarifies but please let me know if you require anything further.

Thank you. Regards

[EXC]

Ok so your complaint to FOS was just about your lack of informed consent about accessing your credit file and making the claims (and not actually about the breach of contract invoice).

I would forget about arguing with FOS about the original complaint because you won't win.

It's tempting for me to advise you to just sign & return the LOA to avoid the breach of contract invoice but if you did you might well become beholden to them forever more with the scores of other claims.

So I would make a formal complaint to Bank Smart about the invoice just to put down a marker that you won't get screwed around.

Dear Sirs

This is a formal complaint for which I expect a final response from you within 8 weeks. Should I not be satisfied with your response or one is not received within 8 weeks I fully intend to take this complaint to the Claims Management Ombudsman.

This complaint is made up of 6 elements and I would like you to address each element individually.

This complaint is about the 'breach of contract' invoice currently for £388.90 and the PPI claim it relates to.

1) Although you have notified me of this invoice you have not provided me with a breakdown of how the amount was arrived at.

2) You have not specified what specific term of what specific contract I am alleged to have breached and how.

3) As you will be aware, in dealing with a separate complaint, the Financial Ombudsman Service have confirmed that you would cancel the invoice if I signed & returned a LOA for a PPI claim. However I have the following serious concerns about whether there is or could be such a claim:

a) The claim was apparently 'created' in August 2019 but despite your regulatory obligation to keep me updated on the progress of claims every 6 months, you have failed to do so.

b) You have a regulatory obligation to establish if PPI exists on an account before a claim is made but you have failed to do so.

c) Given that the PPI claiming deadline was 2 years ago you have not provided me with any confirmation from the lender that a claim is in progress or is capable of being made.

[Casio123]

Thank you again, much appreciated. I will email them this and let you know when i get a response. Regards