UPDATED - Reclaiming Charges, PPi & Unfair Fees

[Never-In-Doubt]

Reclaiming Charges & Unfair Fees

Before entering into a Debt Management Plan, it is always worth checking to see if you are owed any bank charges, this is especially useful if you have an overdraft and are heavily overdrawn; if you cannot afford to repay a high card balance or even if you were mis-sold a loan PPi related insurance policy. Under the Limitation Act (1980); you can go back six years in England and Wales or five years in Scotland; these time periods are limited by law. This includes late payment and overlimit fees but not standard account fees or interest.

In November 2009, at a landmark High Court ruling, it seemed like the end was nigh as far as charge reclaims against a lender, would go. This judgment, however, actually offered some clarity into the whole reclaim argument; in so much as that if the bank do refuse your claim you are still free to seek clarity from the FOS, who can award in your favour. The last alternative is of course court, which should only be considered after serious consultation with an experienced body as the rules are still hazy and judgments are not as plain sailing as you'd expect. It is unchartered territory right now.

You may also have heard of the recent Bank Charges test case where the Supreme Court decided that charges could not be assessed for fairness? Well it is important to understand that this judgment was specifically about Bank Charges and does not apply to Credit Card or PPi claims. However, a report in April 2006 by the Office of Fair Trading was crucial in supporting reclaimers’ cases. Having investigated credit card charges the OFT said, in plain English, that it would not launch a specific investigation on any card companies with charges lower than £12. Although the ruling had no technical power, across the board, most card companies reduced their charges to this £12 level. As such, it has made it a lot easier to reclaim back the difference between what you were charged and this £12 figure. For instance; with a credit card typical £35 charge, you should get at least £23 of it back; though many claimants may be able to get the whole £35 back. With a typical bank charge of £25, you can reclaim the whole amount.

The company that you send an Advanced SAR to, has a maximum of 40 calendar days in which to respond to your SAR, if they have not then give them a quick call and chase it up or go straight to the ICO and report the breach of s.7 (DPA1998) directly. It is always best practice to allow the company a few days longer after ringing them.

You should assume you won't get get a payout, but keep an open mind in case you do

Click the relevant link to be taken to the template section for that particular reclaim;

1. Reclaim Bank Charges
   
   
2. Reclaim Credit Card Charges
   
   
3. Reclaim PPi & PPi Charges
   
   
   • Beginning your PPi Reclaim
   • Refusal of PPi Reclaim
     
     
   
   
4. Alternative CCA Request
   
   
5. Subject Access (SAR) - Advanced Request
   
   
6. Going to the Financial Ombudsman Service

---> Click here to access the ICO Complaints webform

[Never-In-Doubt]

Reclaim Bank Charges

Reclaim Bank Charges

To start the process you should first send off an Subject Access (SAR) - Advanced Request to the Original Creditor (i.e. the Bank) and see what info they send back to you, looking out for statements and/or a summary of all charges letters, specifically for any charges applied to your account over the last 6 years (England); 5 years (Scotland).

You would then visit MSE and utilise their Bank Reclaiming Calculator, printing off the results page at the end and attaching it to the template below.

Dear Sirs,

Account number: XXXXXXXX

I am writing to request that you repay all the charges in relation to direct debits, unauthorised overdrafts and standing orders that have been applied to my account in the past six years. By issuing me with these charges I feel that you have broken the FSA’s regulatory principle to ‘pay due regard to the interests of its customers and treat them fairly’. I am also claiming a refund of the fees for the following reasons:

The charges are unfair under s.140A (1) of the Consumer Credit Act 1974 and contrary to the requirement of good faith, having caused a significant imbalance in our relationship and a detriment to myself, and under regulation 5(1) of the Unfair Terms in Consumer Contracts Regulations 1999, in the following respects (save for, in the case of the later, those matters which relate to the level of the charge as against the service supplied in exchange):

1. The charges were (or had the potential to be) excessive and punitive in comparison with the costs to the bank caused by my conduct which triggered the charges.
2. The charges were set by reference to the overall cost to the bank of providing current accounts to all of its customers which held such an account, rather than merely to the cost of my conduct thereby effectively requiring me to subsidise the provision of current accounts by the bank to other customers.
3. In the premises the bank did not deal fairly as between myself and its other customers.
4. The existence and quantum of the charges were inadequately and/or insufficiently explained and/or drawn to my attention either; when my account was first opened; when I gave an instruction which would result in the levying of a charge; or otherwise before any particular charge was applied.
5. The circumstances and manner in which the charges were levied created potential for the application of multiple charges and the levying of charges to give rise to the application of further charges.
6. The complexity of the charges and/or the circumstances in which they were levied.
7. The nature of the charges and/or the circumstances of their application was such as to cause me inherent difficulties in predicting the incidence and amount of such charges in advance.
8. The absence of any effective competition between providers of current accounts which restricted my ability to chose a current account operated on terms which did not provide for charges such as (and/or equivalent to) those levied by your bank.
9. The charges were (or had the potential to be) excessive in comparison with the level of borrowing which triggered the levying of the said charges.

In particular, and without prejudice, the burden of proof for the above rests on {insert bank name} to prove that the circumstances of our relationship are fair (pursuant to s.140B(9) of the Consumer Credit Act 1974), so unless you can provide evidence to the contrary I expect a refund of the full amount requested by return.

The charges total £{insert total of all charges}, plus as I believe I have been unfairly deprived of the money I have calculated £{insert total of interest} interest at the statutory rate, the amount a court would award and I ask that you repay me the full amount of £{insert total of charges plus interest}. I have attached a full schedule of the charges with this document.

I look forward to a full response to this letter within 14 days and if I do not receive a satisfactory response I intend to pursue my complaint to the Financial Ombudsman Service or small claims court at the earliest opportunity.

Yours faithfully


Sign Name

---> Click here to see MSE's Bank Reclaim Section

[Never-In-Doubt]

Reclaim Credit Card Charges

Reclaim Credit Card Charges

To start the process you should first send off an Subject Access (SAR) - Advanced Requestto the Original Creditor (i.e. the Credit Card Company) and see what info they send back to you, looking out for statements and/or a summary of all charges letters, specifically for charges over £12 applied to your account over the last 6 years (England); 5 years (Scotland).

How much can you reclaim?
This is where it gets a bit trickier but don’t worry, it’s simply about how hard you’re going to push. Remember the OFT has pretty much indicated any charges higher than £12 are challangeable.

Charges before June 2006
Credit card charges from before this date will usually have cost between £30 and £35. With these, you can ask for either the full amount of each charge to be refunded or the difference between the actual charge and the OFT recommended fee of £12; for example, a charge of £35 minus £12 would give a refund of £23.

Charges after June 2006
For any charges on or after June 2006, you were probably hit for £12 each time. As this is already set to the OFT recommended amount, you simply need to ask for the full £12 amount to be refunded.

You would then visit MSE and utilise their Credit Card Interest Reclaiming Calculator (scroll down til you see The Credit Card Interest Calculator), printing off the results page at the end and attaching it to the template below.

Dear Sirs,

Account number: XXXXXXXX

I am writing to request that you repay all the late payment fees and/or over limit fees that have been applied to my account as I do not believe the charges reflect the true cost to [insert name of credit card provider] and are unfair and disproportionate. I am therefore requesting a refund based on the Unfair Terms in Consumer Contracts Regulations 1999.

This is supported by the Office of Fair Trading’s April 2006 statement into credit card charges, which noted that the level of charges at the time, and prior to that period, were unfair. As the OFT reported that its fairness threshold was £12, I am happy to accept the difference between my charges and this figure so that the matter can be concluded as quickly and easily as possible for both of us.

The charges total £{insert total charges}, plus as I believe I have been unlawfully deprived of the money I have calculated £{insert total of interest} interest at the statutory rate (8%), the amount the court would award in such a case.

I therefore ask that you repay me the full amount of £{insert total of charges plus interest}. I have attached a full schedule of the charges and interest with this letter and look forward to a full response within 14 days.

If I do not receive a satisfactory response within this time frame then I intend to pursue my complaint with the Financial Ombudsman Service or small claims court at the earliest opportunity.

Yours faithfully


Sign Name

Only relevant to Credit Card Reclaims:
You may well need to follow up with another letter, if the Original Creditor gets confused and assumes that you have no right to reclaim. They try this on, quite a lot actually, by suggesting that as a result of the OFT Test Case or FSA Waiver you cannot make a claim - they are lying to you! You can make a claim, so if they do try this with you, simply respond with the following template: ---> Credit Card Charge Reclaim - Follow Up Template.

---> Click here to see MSE's Credit Card Reclaim Section

[Never-In-Doubt]

Reclaim PPi

Reclaim PPi & PPi Charges

Ok, first things first - you need to check that you are allowed to reclaim in the first place. So ask yourself the following, and decide:

1. Were you told or sold the wrong product that that you thought you took out?
   This covers anything from being told the insurance was compulsory, to not knowing you had even purchased PPI, to the fact you were already covered through work or your partner. It also applies if the policy isn’t what you agreed to, you got store card cover in a shop and it wasn’t explained or you didn't realise it's a joint policy but only in one person’s name.
   
   
2. Were you self employed, unemployed or retired?
   If you were unemployed or retired, then check if the policy included unemployment cover. If it did, the unemployment cover is worthless and this should’ve been pointed out to you. If you were self-employed you need to check whether you were eligible for a payout if your business went bust (usually not) and if not, and it wasn’t pointed out, you may have a case.
   
   
3. Had you had any pre-existing medical problems in the past?
   Most policies exclude existing medical conditions, meaning you are unlikely to be covered for any medical problems you have had in the past. This is something you should’ve been asked about and informed the policy could be affected.
   
   
4. Did you apply for the product online?
   If you applied for your loan or credit card online, reclaiming is more difficult as the full T&Cs are usually available there and then, however an exception to this is if you purchased from a lender using pre-ticked boxes, meaning you had to opt out of the insurance rather than opt in. In July 07 all lenders agreed to stop doing this but if you took out an agreement before this date check your policy.. you never know.

You need to establish whether or not the account did ever have any PPi related insurance applied to it - if you are unsure as to whether your account did have PPi attached to it, instead of sending a SAR which costs £10, you should send the Alternative CCA Request to obtain a copy of your agreement, which only costs £1. If you get a letter back saying they cannot find your agreement then you may want to consider Unenforceability. Alternatively, to proceed with a PPi reclaim assuming the CCA Request did not confirm any PPi but you're still unsure, then you should then send off for a Advanced Subject Access Request (SAR), which should contain some hint about whether PPi was sold to you and applied to that account.

So, how far can you go back? Well unlike bank charges or credit card reclaims, with PPi there are varying practices. For instance the norm is to go back for a period of 6 years however older accounts (and closed ones) can still be reclaimed, so long as you have enough paperwork as once an account is closed the lender does not have to comply with a CCA Request and may omit this from any SAR as well, in which case you'd have to rely on any fee's shown on statements or other links to possible PPi being sold. Even if you've claimed on the policy, you are still eligible to reclaim. Until January 2010 it had been generally assumed you could not make a misselling complaint if you've already made a successful insurance claim because that would indicate the policy was suitable. Yet proposals from the regulator now mean more people could be entitled to compensation, however anyone who has claimed on a PPI policy can still submit a misselling complaint, though the chances of success are unclear.

Once you have the paperwork in place, it is time to move on to Beginning your PPi Reclaim

---> Click here to see MSE's PPI Reclaim Section

[Never-In-Doubt]

Beginning your PPi Reclaim

Beginning your PPi Reclaim

Ok, so now you should have the SAR/CCA paperwork in front of you and established that you were sold PPi, in which case you should send the template below, along with the OFT Consumer Questionnaire (remember to photocopy everything so you have your own version for back-up).

Dear Sirs,

Account number: XXXXXXXX

I am writing to request a refund of PPi that I believe I was mis-sold.

Please find attached with this cover letter a copy of the FOS PPi Consumer Questionnaire that was agreed by all banks, and the OFT, in March of this year.

I look forward to a full response to this letter within 14 days; otherwise I may commence additional proceedings to reclaim my money, together with interest up to the date of judgment and any applicable court fees.

Yours faithfully


Sign Name

Remember to attach the cover letter above, to the OFT Consumer Questionnaire and send both to the lender directly. The questionnaire was created by the OFT as a result of a meeting in March 2010; in which the banks and the Financial Ombudsman agreed a questionnaire, covering all details on the sale of a policy, that consumers should use to make their initial complaint.

Important - you shouldn't forget that in cases where there is a debt outstanding on the account, any PPi refund is usually paid directly to the arrears portion only. To help clarify this, lets assume the following scenario's:

1. You are up-to-date with your account
   Any refund due would be sent to the account holders address, usually via cheque
2. You are slightly in arrears with your account
   Any refund would pay off the arrears with the balance being sent to the account holders address, usually via cheque
3. You have defaulted your account
   Any refund would be used to repay as much of the debt as possible; any shortfall would be become due by you; any overpayment would be refunded to you via cheque
4. Your account is closed (paid up)
   Any refund due would be sent to the account holders address, usually via cheque
5. Your account is closed (defaulted/statute barred)
   Any refund would be used to repay as much of the debt as possible; any shortfall would not be owed by you; any overpayment would be refunded to you via cheque. In Scotland, any refund due would be paid to you, in its entirety as Statute Barred debts are closed totally, whereas in England they cannot be enforced but remain 'open' (main difference).

---> If you need help completing the FOS Consumer Questionnaire, then see MSE's FOS Questionnaire Help

[Never-In-Doubt]

Refusal of PPi Reclaim

Refusal of PPi Reclaim

In most cases a company’s first reaction is to reject your complaint - this doesn’t mean you’ve no case - it is just a tactic. This isn’t about rights and wrongs, it's about commerce; it's cheaper to say no and produce a legalese argument to confuse you and hope you'll walk away. The Financial Ombudsman has formally complained to the regulator that some lenders are "deliberately trying to obstruct the Ombudsman process". They've been rejecting ALL consumers' initial requests to reclaim, even though they know when it gets sent to the ombudsman, 90%-100% of cases are adjudicated in the consumer's favour. This is done as a way to prevent people who lack the determination to pursue the claims. So you must go into this expecting rejection at this stage, and understand it's just part of the process.

If you've not been successful, now it’s time to get a little bit more serious and firm with the lender. Send them a simple follow up letter from those shown below;

No response to your initial complaint/PPi Reclaim

Dear Sirs,

Account number: XXXXXXXX

I refer to my complaint dated xx/xx/xxxx with regards to the misselling of the insurance sold with my account. A copy of my original FOS Consumer Questionnaire is enclosed for your information.

To date, I have not received a response from you so I am writing again to request a full refund of the premiums and associated interest, that would become payable through the courts - currently 8%. If I have not heard from you within 14 days I shall consider taking my complaint to the Financial Ombudsman Service which may result in legal action being sought as part of the process.

Yours faithfully


Sign Name

Lender denies the mis-selling of your policy

Dear Sirs,

Account number: XXXXXXXX

I refer to my complaint dated xx/xx/xxxx with regards to the misselling of the insurance sold with my account. A copy of my original FOS Consumer Questionnaire is enclosed for your information.

I do not feel your letter has offered a satisfactory justification that my policy was sold fairly, reasonably and within my best interests so I request that you look into my complaint again. If I do not receive a more favorable response from you within 14 days I shall shall consider taking my complaint to the Financial Ombudsman Service which may result in legal action being sought as part of the process.

Yours faithfully


Sign Name

Lender offered a 'derisory' settlement

Dear Sirs,

Account number: XXXXXXXX

I refer to my complaint dated xx/xx/xxxx with regards to the misselling of the insurance sold with my account. A copy of my original FOS Consumer Questionnaire is enclosed for your information.

Although you have offered me the sum of £XXX to cover the mis-selling of my policy, I do not think this amount is enough to cover a refund of the premiums, subsequent interest that I have paid on these premiums and the 8% statutory interest that a court would award. However, if you were to increase your offer to £XXX I would accept and consider the matter closed. If I have not heard from you, confirming acceptance of my revised offer, within 14 days, I shall consider taking my complaint to the Financial Ombudsman Service which may result in legal action being sought as part of the process.

Yours faithfully


Sign Name

---> Additional Info available via the FOS PPi Consumer Factsheet

[Never-In-Doubt]

Alternative CCA Request

Alternative CCA Request

Send the letter below (CCA Request) with a £1.00 cheque or Postal Order to the Original Creditor (Lender); remembering to send it recorded delivery, then await 14 days which is the length of time they have to respond, from the date you sent it;

Dear Sirs,

Account No: XXXXXXXX

I hereby formally request a copy of my Consumer Credit Agreement, pursuant to s.77-79 of the Consumer Credit Act 1974 (CCA1974).

I require you to provide me with a true copy of the credit agreement relating to any account you deem to be mine, together with any other documentation the Act requires you to provide. I expect you to comply fully and properly with this request, within the statutory time limit (12 + 2 days).

If it is your view that you are not the creditor, s.175 of the CCA1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties. Your attention is drawn to ss.5(2), 3(b), 6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

Attached is payment in the sum of £1.00, which is the statutory fee - note that these funds are not to be used for any other purpose. If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee and then remove the incorrect entry from your systems.

I do, expect the main actions to be dealt with, as matter of course, and look forward to hearing from you within the prescribed time-scales quoted.

Yours faithfully


Sign Name

[Never-In-Doubt]

Going to the Financial Ombudsman Service

Going to the Financial Ombudsman Service

If you still haven’t reached a satisfactory conclusion, it’s time to make a formal complaint to the Financial Ombudsman Service; the official independent service for settling disputes between financial companies and their customers. The FOS is completely free to use, and will adjudicate on whether your claim should be paid out. It will look at your complaint {see some examples} and decide whether your policy was sold unfairly or unreasonably. It can only do so once eight weeks have passed from the date of your first complaint letter, unless the lender itself specifically suggests you go to the Ombudsman, usually by issuing a Final Response.

To make its decision the FOS will look at each case individually, so if yours is a matter of you saying one thing happened but your lender disagrees, the FOS will decide if it thinks the lender acted fairly. As the party with responsibility to provide full details of the insurance, the lender is expected to have more evidence on what happened to back up its case. Currently, of the cases that need to go as far as the Ombudsman, two thirds are being awarded in consumers' favour and even if yours isn’t, there is no penalty for losing, it just means you don’t get the money back.

To make your complaint, just Contact the Financial Ombudsman Service and ask them to take on your case. You will need to fill in and sign a copy of their Complaint Form {Word Version} / {PDF Version} to explain your complaint, which must be backed up with copies of any paperwork that you have got.

The FOS will then send you a confirmation letter to say it will look into your case and get back to you if it needs any more information. Sometimes this will take a long time, usually around 6 months but maybe even up to a year, but don’t worry, you can then leave the matter to the FOS to resolve and they will contact you with any offers from your lender.

---> If you need help completing the FOS Consumer Questionnaire, then see MSE's FOS Questionnaire Help