Random Freemanesque Babblings from idiots unable to sustain their own thread

[Hyrion]

... my bank Natwest are saying that they will not process my claim as RBS are part of the same group ...

Ouch - isn't that a kick in the seat of the pants. Requesting a fraudulent clawback from a company that can actually verify the real status of your agreement and state of account.

[YiamCross]

It has nothing to do with fraud. The Direct Debit Guarantee exists to correct errors, it's there to reassure people who make a direct debit agreement that they won't lose money if a rogue company decides to suck their account dry and disappear into the night by making the bank responsible for refunding the money.

If a customer believes payment has been taken by direct debit in error then the bank must refund the money. The bank has to, it's part of the agreement it signs up for to process direct debits. It has no choice, it's not required to investigate whether there's some kind of fraud or basis to the claim, it has to refund any payments the customer says were taken in error. The bank is responsible for refunding the money, end of. The discussion about whether the money should have been refunded or not is between the customer and the entity having the direct debit agreement and if it turns out it shouldn't then the customer has to give the money back.

The bank could have a duty to ensure the customer has good reason to believe that payments have been made in error and how much effort they put into confirming that may well be influenced by the amount of money involved. There's a clue that they might have to cover their back in some way in that little asterisk

How to claim

In the event that an error is made in the payment of your Direct Debit*, either by the organisation or your bank or building society, you are entitled to a full and immediate refund from your bank of the amount paid.

* The Guarantee covers Direct Debit payments. It cannot be used to address contractual disputes between you and the billing organisation.

What the scammers do is to abuse the guarantee as a loophole by saying the payments were mad in error. Maybe that little asterisk gives the banks some scope to refuse the refund but so long as the customer maintains that the payments have been taken in error then I don't see what they can do but refund the money.

[Footloose52]

Dig a bit deeper and you get:

If the complaint does not relate to the payment of your Direct Debit, for example you wish to complain about a service, product or the underlying contract which you pay for by Direct Debit or you disagree with the amount shown on the advance notice, you should refer this to the organisation providing the service or goods. They will be able to provide you with more information about their complaints process

That will be the get out the bank will use. If your bank also happens to be your mortgage company then they will know the contract is valid. It would be very rare to find a problem in the mortgage deed (I used to execute and register them for a bank).

[longdog]

Without actively contacting the business that applied for payment (not reversal) to find out what was going on, how would the bank be able to prove in a Court Of Law anything pertaining to the alleged fraudulent transaction assuming the situation went that far?

In this situation it's not a matter of having to prove anything in a court of law so the point is entirely moot. Whilst it's entirely possible that a person trying to make a DD clawback could bring a case against the bank if it had refused on the grounds that they suspected fraud they would have to prove that the bank was acting unreasonably by asking for further details... And I don't for one minute think a court would find that was the case.

I'm not a member of the Legal Industry so I can't quote the specific legislature in even one jurisdiction. However, I do believe some Jurisdictions have interference with business relations as a point for Anti-Competition Laws. Perhaps someone more knowledge with this context can clarify.

There's no such thing in the UK as far as I'm aware and even if there were it would be a matter for the Competition Commission or the Monopolies Commission or whatever they're called to look at in the first instance not the courts.

To ignore the context of "he's a small time loser who can't afford to take us to court context" I present a hypothetical to cover the context of the situation of one entity making a substantial and unusual clawback request. And perhaps the clawback requests do not even apply in this situation. I don't know the legislation covering that either so I really can't speak to the possible exceptions.

However, if anyone insists the bank can "interfere" in a business transaction governing a contractual relationship between 2 other entities: I sure would like clarification on how the Bank can legally do that.

The problem with that is that it's a two way street. Allowing the clawback is as much an 'interference in a business transaction' as refusing it.

[PeanutGallery]

If a customer believes payment has been taken by direct debit in error then the bank must refund the money. The bank has to, it's part of the agreement it signs up for to process direct debits. It has no choice, it's not required to investigate whether there's some kind of fraud or basis to the claim, it has to refund any payments the customer says were taken in error.

Not quite, the actual wording of the guarantee (here: http://www.directdebit.co.uk/DirectDebi ... antee.aspx) is,

Direct Debit Guarantee

The Guarantee is offered by all banks and building societies that accept instructions to pay Direct Debits
If there are any changes to the amount, date or frequency of your Direct Debit the organisation will notify you (normally 10 working days) in advance of your account being debited or as otherwise agreed. If you request the organisation to collect a payment, confirmation of the amount and date will be given to you at the time of the request

If an error is made in the payment of your Direct Debit, by the organisation or your bank or building society, you are entitled to a full and immediate refund of the amount paid from your bank or building society

If you receive a refund you are not entitled to, you must pay it back when the organisation asks you to
You can cancel a Direct Debit at any time by simply contacting your bank or building society. Written confirmation may be required. Please also notify the organisation.

* The Guarantee covers Direct Debit payments. It cannot be used to address contractual disputes between you and the billing organisation.

As you should be able to see it's not "If the customer claims that an error is made in the payment..." but simply "If an error is made..." this is important, it allows the banks to verify if their has actually been an error without breaching the terms of the agreement. A customer would only be entitled to a refund when the error was discovered and shown.

The banks strongest argument would be that they are entitled to investigate the veracity of a customers claim to establish if an error has indeed happened and if the customer is therefore entitled to a refund. They would argue that the guarantee obliges them to do this.

[mufc1959]

The FOS seems to take a dim view of this. We've had a few cases go to the FOS where at the first stage (adjudicator) the customer's been rumbled and told to bog off. We haven't had a case go to a final decision, but here's one where the ombudsman makes it clear that the FOS has no truck with this kind of fraud.

http://www.ombudsman-decisions.org.uk/v ... leID=57469

[longdog]

We haven't had a case go to a final decision, but here's one where the ombudsman makes it clear that the FOS has no truck with this kind of fraud.

http://www.ombudsman-decisions.org.uk/v ... leID=57469

You have to admire the breathtaking stupidity of the claimant in that case

[YiamCross]

As you should be able to see it's not "If the customer claims that an error is made in the payment..." but simply "If an error is made..." this is important, it allows the banks to verify if their has actually been an error without breaching the terms of the agreement. A customer would only be entitled to a refund when the error was discovered and shown.

I'm not sure how much scope the bank has to investigate or what it can look into. Certainly since these scams have become more widespread they seem to ask more questions but as far as I know if the customer tells the bank the payments have been made in error then they refund the money.

The banks strongest argument would be that they are entitled to investigate the veracity of a customers claim to establish if an error has indeed happened and if the customer is therefore entitled to a refund. They would argue that the guarantee obliges them to do this.

As I say, I don't know how far they can go with their investigations. In my experience it appears that they ask the customer a few questions and then they refund the money.

A few months ago I noticed money had gone from an account I don't use much, about 900 quid had been taken over the course of a year. Sneaky buggers had taken the money in small amounts on different dates and changed the reference code so they appeared to be for different things. The customer services operator accepted my statement that I hadn't authorised the payments and the extent of her checks was to identify the company that had taken the money and ask me if I was sure I hadn't used their services or whatever. When I confirmed that I'd had nothing to do with them and hadn't authorised the money to be taken she refunded the lot, there and then. She did say that if the company came back with proof that I owed them the money then I would have to pay it back to them but of course they had none so I haven't.

Things may be different when someone tries to claim £10's of thousands back from a mortgage account but I haven't attempted that and have no intention of doing so but there are a number of idiots who have with some success. Success in the sense they reclaim their payments okay but of course it all goes horribly wrong when the mortgage company write to ask where their money has gone and when it will be paid back.

ETA having read the ombudsman's decision above it seems I was lucky to get my money back since I had not given the originator access to my accounts in the first place. Don't see how that doesn't count as an error but lucky for me the bank was happy to refund the cash.

[NYGman]

When I was following GOOFY closely, I saw that there was a change in Banks treatment of DD's. They started to ask more questions, when the periods were long, and the amounts high. So I do think there was a noticeable change, as several on that forum were questioned. The stock response was to tell the bank that this was an absolute guarantee and once instructed, they were obligated to refund. There was a section they were supposed to read to the person on the phone. But last time I checked, this wasn't reliably working, and Banks were actually checking things out first, how dare they, what nerve...

The same thread, form the beginning: http://www.getoutofdebtfree.org/forum/v ... p5YK_krJPE And check out the last few pages.

[letissier14]

If anything, the banks started to look more closely at the DD Clawback because of the large amount of people on both Conditional Acceptance 3 - CA3, and BeatTheBaillifsAndBanks - aka BTBAB, on Facebook

Certain members were telling people to claim back for everything

[NYGman]

If anything, the banks started to look more closely at the DD Clawback because of the large amount of people on both Conditional Acceptance 3 - CA3, and BeatTheBaillifsAndBanks - aka BTBAB, on Facebook

Certain members were telling people to claim back for everything

See, try to do something nice, and a bunch of idiots ruin it. This was put together with great intentions, but just opened up another avenue of abuse by those intent on scamming banks.

[letissier14]

Yep, the groups were helpful to start with but soon diverted away from helping people by legitimate means, to offering advice which clearly doesn't work and has no basis in law.

[Hyrion]

In this situation it's not a matter of having to prove anything in a court of law so the point is entirely moot.

Yet - when a disagreement between two parties can not be resolved and both parties have it in their intent to "enforce" (for lack of a better word) their position, civil lawsuits are the logical, civilized societal answer to settle such disputes. So, ultimately that is a possibility although it would be foolish and self-destructive for any OPCA to go that route.

It was from that end-result context I was attempting to put forth a sample situation where there was a legitimate error, the entity whose account was debited requested the error be fixed, and the Bank made a mistake in their decision and declined to provide the refund. The question (which should be ignored at this point) is: in such a situation, what's the potential the Bank could get into trouble.

Whilst it's entirely possible that a person trying to make a DD clawback could bring a case against the bank if it had refused on the grounds that they suspected fraud they would have to prove that the bank was acting unreasonably by asking for further details...

There's only so much information the Bank can ask for - Privacy of information Laws can potentially be used to allow the entities involved in the transaction to refuse to answer the Banks questions. Additionally, it's not just the person requesting that could decide not to answer certain questions by the Bank even while answering others. Using the example scenario, if the Bank called up FMC in order to attempt to confirm anything, FMC isn't required to co-operate.

The problem with that is that it's a two way street. Allowing the clawback is as much an 'interference in a business transaction' as refusing it.

Except that I would hope the Legal side of the equation would understand that the person whose account is being debited has very little to no control over the creation of the auto-debit transaction (with obvious exceptions such as where the individual logged on to do on-line banking and set the payee up personally) or the rules by which said transaction operates. So while there is interference either way, the "system" (structure and operation of authorized direct payments) is definitely stacked against the payor - which, ironically ... never mind, purely philosophical point.

For example:

I can't speak of the UK, only of Western Canada. The few agreements I've entered where direct debit would be involved was me entering agreement with the third party. They would then contact the bank and arrange everything else. I once even specifically went in to the bank to ask about setting up account holder controls on those payments (make sure only one payment each month was taken, was taken on or after specific date - as per the agreement). The Banks response: not possible. Any issues with the actual transactions I'd have to take up with the third-party I formed the agreement with.

As a result, since then I've only ever setup direct debit with the financial institution I have the loan through - the specific bank that gave me the vehicle loan for example. That way there's no third-party relationship making the situation much more cloudy with whom to speak to in order to resolve problems. Realistically amusingly, this type of relationship is strongly detrimental towards the OPCA antics.

On that last note: I realize my queries have moved away from the OPCA antics and towards very specific legal-type questions of a deeper perspective. As a result - while I leave my thoughts in place, I withdraw any questions regarding the various aspects I've raised in the last couple days so as to remove myself from adding to the off-the-rails trail.

[Hyrion]

The FOS seems to take a dim view of this. We've had a few cases go to the FOS where at the first stage (adjudicator) the customer's been rumbled and told to bog off. We haven't had a case go to a final decision, but here's one where the ombudsman makes it clear that the FOS has no truck with this kind of fraud.

http://www.ombudsman-decisions.org.uk/v ... leID=57469

That's a very creative solution. Basically:

• If you entered into a direct-debit agreement, and an error was made, then we can help you.
  
  However
  
  If you did not enter into a direct-debit agreement, then this constitutes fraud on the part of the third party who requested payments out of your account, you should really be speaking to the criminal authorities about this.

Note, that last part is my "reading between the lines".

That's actually a very good way to respond to a claim indicating that no agreement had been entered into: that would be a clear case of fraud so go talk to the criminal authorities. We will fully co-operate with them.

[PeanutGallery]

Yet - when a disagreement between two parties can not be resolved and both parties have it in their intent to "enforce" (for lack of a better word) their position, civil lawsuits are the logical, civilized societal answer to settle such disputes. So, ultimately that is a possibility although it would be foolish and self-destructive for any OPCA to go that route.

It was from that end-result context I was attempting to put forth a sample situation where there was a legitimate error, the entity whose account was debited requested the error be fixed, and the Bank made a mistake in their decision and declined to provide the refund. The question (which should be ignored at this point) is: in such a situation, what's the potential the Bank could get into trouble.

I believe to a certain extent you have supplied your own answer. In a situation where a Direct Debit refund has been refused, due to the bank making a mistake and declining, the recourse is obviously a civil lawsuit. The question would be as to who you sue? I would suggest it would depend on the actual facts relating to the matter and what losses have been incurred. It would pose an interesting question, although its one the courts haven't, to my limited knowledge, yet answered. I would suggest that the only real trouble a bank could get into is going to be spending a bit of money on lawyer fees and maybe a small goodwill compensation payment.

The bank isn't likely to get in much, if any trouble, and it certainly won't cost them anything if they do. I'd also suggest that if the Direct Debit Guarantee did create a significant scamming problem for banks, they would simply change it.

In truth a legitimate claim is still likely to succeed. Most of these 'fake' claims are being made on the basis of templates found on the internet. The banks know what the templates are, they've read them, they've laughed at them and they've worked out how to detect them. I would point out that people looking for a legitimate refund, while they may be frustrated should be very forthcoming about the details relating to the disputed amount and would be keen to get their point across. I am certain that in the example given by Yiam above, he would have given a surfeit of information quite happily if he believed it would resolve the issue in his favour. With the DD Clawback Scammers they don't want to get into long discussions or give away any facts largely because they simply haven't thought about that. They are just focused on getting the money.

[mufc1959]

Most of these 'fake' claims are being made on the basis of templates found on the internet. The banks know what the templates are, they've read them, they've laughed at them and they've worked out how to detect them. I would point out that people looking for a legitimate refund, while they may be frustrated should be very forthcoming about the details relating to the disputed amount and would be keen to get their point across. I am certain that in the example given by Yiam above, he would have given a surfeit of information quite happily if he believed it would resolve the issue in his favour. With the DD Clawback Scammers they don't want to get into long discussions or give away any facts largely because they simply haven't thought about that. They are just focused on getting the money.

This. Except that most of the DD clawbacks are requested over the phone. We've now got a script for customer service reps to follow so they can pinpoint if it's likely to be a dodgy claim. The genuine ones can identify exactly what specific payment has been taken and what the error is.

A few years ago we started to see the 'void mortgage' templates, probably Simon "White Rabbit" Spaniard's ones that he sells for stupid amounts of money to people idiotic enough to attend his seminars or webinars. At first we didn't know what they were, but talking to colleagues at other banks, they were also getting identical documents. They have a little triangle diagram to show what securitisation is meant to be, and they're written in archaic legal language that's meaningless. For example, they are demanding "a prerogative Writ of Mandamus", and "redress of all my rights, subject to the constitution".

These days we get two or three of these a week. Usually we just send back our standard letter, telling them to go away or go to the FOS. If they phone up, I like to yank their chains a bit and ask them to explain precisely what they mean by a prerogative Writ of Mandamus, what process they would follow to obtain such a Writ, what the effect of it is, how the Magna Carta and the Bill of Rights affect the validity of their mortgage, etc. Usually they hang up on me.

[YiamCross]

It was from that end-result context I was attempting to put forth a sample situation where there was a legitimate error, the entity whose account was debited requested the error be fixed, and the Bank made a mistake in their decision and declined to provide the refund. The question (which should be ignored at this point) is: in such a situation, what's the potential the Bank could get into trouble.

A lot if it doesn't pay pack amounts taken in error. It's in the Direct Debit Guarantee and there are sanctions if it doesn't stick to the agreement by which it's ruled. Like being kicked out of the DD club.

There's only so much information the Bank can ask for - Privacy of information Laws can potentially be used to allow the entities involved in the transaction to refuse to answer the Banks questions. Additionally, it's not just the person requesting that could decide not to answer certain questions by the Bank even while answering others. Using the example scenario, if the Bank called up FMC in order to attempt to confirm anything, FMC isn't required to co-operate.

Which is why the bank has to rely on the customer to show that there's been an error. That's why there's an opportunity to exploit the DDG.

Except that I would hope the Legal side of the equation would understand that the person whose account is being debited has very little to no control over the creation of the auto-debit transaction (with obvious exceptions such as where the individual logged on to do on-line banking and set the payee up personally) or the rules by which said transaction operates. So while there is interference either way, the "system" (structure and operation of authorized direct payments) is definitely stacked against the payor - which, ironically ... never mind, purely philosophical point.

That is the point of the DDG, to give a person who's entering into a DD arrangement confidence that they won't have any problem if things go wrong. That's why it's on the bank to refund the money and not the company with which the person has the DD agreement. That's why there's room to exploit the DDG, it's written heavily in favour of the customer but the benefit is that people will have enough confidence to use the system. The benefits must outweigh the risks or things would have changed.

For example:

I can't speak of the UK, only of Western Canada. The few agreements I've entered where direct debit would be involved was me entering agreement with the third party. They would then contact the bank and arrange everything else. I once even specifically went in to the bank to ask about setting up account holder controls on those payments (make sure only one payment each month was taken, was taken on or after specific date - as per the agreement). The Banks response: not possible. Any issues with the actual transactions I'd have to take up with the third-party I formed the agreement with.

As far as i know the DDG is international but I could be wrong.

As a result, since then I've only ever setup direct debit with the financial institution I have the loan through - the specific bank that gave me the vehicle loan for example. That way there's no third-party relationship making the situation much more cloudy with whom to speak to in order to resolve problems. Realistically amusingly, this type of relationship is strongly detrimental towards the OPCA antics.

It does seem to make it more fun to watch the idiot scammers go into a frenzy trying to make the banks follow what they think are the rules. Then again, their abuse of the laws and the rules is what keeps us all amused and little scenarios like the one with the financial ombudsman above. Comedy gold.

On that last note: I realize my queries have moved away from the OPCA antics and towards very specific legal-type questions of a deeper perspective. As a result - while I leave my thoughts in place, I withdraw any questions regarding the various aspects I've raised in the last couple days so as to remove myself from adding to the off-the-rails trail

No, this is interesting and it's pertinent to how the OPCA crowd operate. As NYGman says above, try to do something nice and some idiot comes along to spoil it all. Now the banks are finding ways to slow them down a bit but they are limited by the DDG which, as I think we see from above, is very heavy biased towards the client. Which, in its own way gives us more entertainment as the idiots who do manage to get money back are then dragged through the courts and ruined because they spent it on a holiday, flat screen TV or flashy motor and can't pay back what they owe.

Sadly if the problem grows too big there's every chance the DDG will be redrafted so the rest of us, who only use it when there's a genuine reason to do so, are going to end up having our lives made more difficult. That's not taking the subject off the rails, it's trying to explore ways they are trying to take the world off the rails and maybe finding ways to stop them.

[AndyPandy]

http://getoutofdebtfree.org/forum/viewt ... qAOanrfWK0

Bit of a spat going on over in Goofyville - YBS (aka Grant- Sinclair) lost his property's some 14 / 15 years ago due to non payment / possession orders, tried to use the securitisation gambit to prevent repossession. Failed miserably and arguments dismissed 'without merit' http://www.bailii.org/ew/cases/EWLandRA ... -0020.html now been told to get over it and move on with his life and just seem he cannot let it lie and accept the truth of the matter. Predicatably Everyone's a shill, banker, troll etc. Etc.

He's the genius who put together a recent seminar on securitisation which Tom Crawford and the legal guru Guy Taylor spoke at.

[YiamCross]

Just when you thought there couldn't be any more fruit loops out there ready to swallow the freeman crap one manages to come up with their very own go straight to jail, do not pass go, do not collect £200 card.

[daveBeeston]

Wow just Wow

I hope whoever has posted that has the balls to actually send it back to the TV licensing people,although i suspect just like all other freeman followers it will all be for show and will have been binned as soon as the photo's where taken.