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Creation Financial Services bashing

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  • Rui N.

    Yeah, just because your online account is accessible, doesn’t mean that your card account is open. Online accounts being accessible after a card is closed is quite common.

    The card has been showing as closed closed on the credit report a day before the date that was on the letter (maybe I should add that to the FOS complaint? *this forum needs smiles*). Like Steve, I’d be very surprised is that wasn’t the case for everyone else.

    EwanG

    I would be surprised if the card account isn’t showing as closed.

    Don’t be surprised. My card still showing as open on Experian and TransUnion feeds. Mind you I’m in no hurry to get my account closed, as the clock is ticking down to my card anniversary!

    WillPS

    Quick update on my MCOL. From the court:

    “Upon reading the amended particulars of claim it is ordered that the Defendant shall file and serve an amended defence by 28th July 2022.”

    Did they come up with anything, @Jon?

    BuildBackBetter

    I would be surprised if the card account isn’t showing as closed.

    Don’t be surprised. My card still showing as open on Experian and TransUnion feeds. Mind you I’m in no hurry to get my account closed, as the clock is ticking down to my card anniversary!

    Thanks everyone. ‘Totally money’ confirmed the card has been closed. Time to cut the card.

    Jon

    MCOL update: we have a defence…

    It’s 28 pages long, and involves a lot of cross-referencing to my Particulars of Claim and also internally, with a lot of “paragraphs x and y are repeated” statements. The bulk of it appears to be context rather than rebuttal or argument, and much of that appears at first look irrelevant. I need to go through it carefully, and thoroughly read it side by side with my claim, but from an initial reading, the gist appears to be:

    1. The credit agreement provides various consequences following termination (with two months notice) of the agreement, eg cardholder ceasing use of the card; the defence seems to be trying to say that termination took effect immediately upon their giving two months’ notice of termination…

    2. The terms and conditions of the IHG Rewards Club apply (as well as the Credit Card T&Cs, and the Credit Agreement), and therefore because IHG has the right to modify the programme terms and benefits etc, so does Creation… (and they also seem to be hinting that because the IHG terms fall under US jurisdiction and provide for arbitration by the American Arbitration Association, so should this case).

    3. Points have no value until redeemed, therefore no money is due in lieu of Creation’s failure to award them.

    I think that should all be fairly easy to address, and really already has been in my original claim, but I should probably reiterate and perhaps elaborate on a few points in my response.

    They also put me to strict proof of various things, eg that Creation marketed the card as conveying certain benefits (!), that I had met the spend threshold for the voucher, that I would have qualified for Spire Elite status (and hence Elite Choice benefit) had they transferred the points earned… I think I have already done that in my claim, but perhaps I’ll add some additional commentary.

    They deny my assertion that there is nothing in the (collective) T&Cs that make any reference to what should happen to the annual fee in the event of Creation closing the account during the card year, so I may put them to strict proof of where it allows them to retain all of it.

    They deny that their basis for withholding benefits etc is that Section 6 of the IHG Rewards T&Cs allows benefits to be added or removed at any time without notice – which is exactly what Creation’s final response letter to me said, so they’re denying their own assertion. They do not appear to provide any alternative basis.

    I’m not sure they’ve addressed at all my submission that they have misconstrued the meaning of Section 6 of the IHG Rewards Club terms, beyond basically saying that no, it is I who has misconstrued it…

    They deny there are any unfair contract terms. Again, I think that can be addressed in a paragraph or so, but I am intrigued that they say my claim to that effect is “embarrassing [in the legal sense] for want of particularity” – despite the fact I have referred directly to specific terms of the Consumer Rights Act and have set out exactly how I believe Creation’s actions have breached them… (Section 62 Part 4 and Schedule 2 Part 1, terms 3, 4, 7, 17 and 18, and also Sections 68 and 69; the defence does not appear to have argued why these should not apply).

    They also seem to be trying to say that because I have been an IHG Rewards Club member since March 2015 and the Consumer Rights Act came in to force in October 2015, they are putting me to strict proof of its applicability. My card application was April 2017… Does anyone recall what date Creation took over the IHG co-brand?

    The defence included the IHG Rewards Club terms as an appendix – last modified June 2022… 😉

    My inclination is not to risk irritating the court by giving a lengthy line by line response to absolutely every single point (which is what the Defence has done – and it does get rather tedious to read) – unless anyone wants to advise that I really should? Rather, I think I should respond ‘in the round’, in as few paragraphs as I can. There are a handful of points I will need to address line by line, but in general I think it should be fairly straightforward – but if anyone has any thoughts or observations, or advice, or traps to be aware of etc, please do share.

    I’m not sure there’s actually anything in the defence that I haven’t already addressed in my claim, nothing in there that disproves, or provides specific evidence against, any of my points – it’s basically all just “we deny x”, and “the terms apply” (but without actually showing how the terms permit Creation’s actions). In some ways I’m not sure a response is even needed at all, but I probably shouldn’t rely on the court having time to go through the minutiae, so I assume it would be helpful to provide a short summary of the view I’d like the court to take…

    I haven’t received anything directly from the court yet, but I assume I’ll hear from them soon with a deadline for my response.

    JDB

    @Jon I’m not sure the Court will ask you for a response as once the defendant has filed a defence and stated the claim will be defended in full, the next step is usually for you to complete a directions questionnaire that the court will send with this defence. Then the court will issue directions.

    In the event you can provide a response, I would stick only to addressing anything egregiously incorrect that can be very simply disproved. Otherwise, you are falling into their trap of just chucking a lot of stuff around to obfuscate the facts. Keep it brief, very factual, no adjectives!

    In respect of status benefits etc. you are dealing with hypotheticals which it is quite difficult to get compensation for at all, let alone in full.

    In your penultimate paragraph you mention providing a “summary of the view I’d like the court to take”. I wouldn’t do that – you need to set out the facts, how you say Creation has breached your contractual or consumer rights and how that has directly led to financial loss as quantified by you. It is only for the court to take a view.

    I don’t know if Creation is asking for an oral hearing or one on the papers?

    Jon

    Thanks @JDB, noted 🙂

    I don’t think they’ve said anything specific about a hearing – although there is a mention in the defence of “The Defendant reserves the right to rely upon the Terms and Conditions of the Credit Agreement at trial”.

    I imagine the court would review the documents and decide whether a hearing is needed?

    Lady London

    Do what JDB says.

    This looks really incompetent. I am wondering whether a relatively junior lawyer has been given this to do. But I would still be very, very cautious and look carefully for any traps and technicalities that they could use to slide out of this.

    Basically they are floundering around putting up diversions like IHG’s rules and other red herrings which are nothing to do with your contract with Creation for financial services. They don’t seem to have taken your base case of the key CRA statute and contract law and countered it in any systematic way. This is surprising to me. Perhaps it’s not that someone relatively inexperienced has got it to do; perhaps it’s just that they have no defence so are trying to shift the ground.

    Let’s hope the judge is not similar.

    If the points your contract says you will earn become worthless or have another problem perhaps because of any change in IHG’s scheme then you will take it up with IHG under their membership agreement. Not that tbis is anything anyone would expect. But that doesn’t mean Creation does not have to continue to award points in relation to spend as per your contract with Creation and continue during any noice period unless stated to the consumer very clearly otherwise. And whilst I haven’t seen the card agreement I’ll bet IHG is not a party to your contract with Creation – where does it say that?

    If there is a hearing and Creation really want to pursue this line then I’d be all set up logged into IHG ready to do a live online demonstration, or would produce printout made earlier the day of the hearing of a sample booking ypu can still make under IHG’s program conditions, today, with the points Creation’s contract said they would award you. Further evidence of past.stays on points and their cash value would be helpful if available. But I presume you’d already have submitted such evidence proving value is not just hypothetical. It’s the value to you that matters, within reason not what the points might be worth to someone else.

    Please let us know what the judge directs next.

    Lady London

    PS reading again all that diversion attempt about date IHG program started, date you became a member is irrelevant. Don’t be diverted.

    The CRA was in force at the time you signed up with Creation. That’s all you need. Your agreement with Creation is an agreement between you and Creation for financial services and has benefits to both sides including to you, the points which have a known value to you and had a known monetary value both before you took the contract and have continued to have since.

    Creation on their side earns fees from you, and earns commission-type amounts on the money you spend with merchants using the card. You earn a number of points based on spend according to contract rules and under the contract they must pay you the points you’ve earned under those contract rules. There are other competing similar financial services available [cards] and knowing the value to you of those points based on the spend you knew you would make, enticed you to enter into the agreement. So it’s fundamental that they award the points and they didn’t.

    Forget IHG, it’s the CRA (and not just the CRA but contract law) that matters and it’s the card agreement dates that matter not any other dates. IHG dates are totally irrelevant.

    JDB

    @Jon contrary to what @LL says, they aren’t being incompetent at all, they are just using slippery street fighter tactics that make them rather tricky opponents; it’s asymmetrical warfare. It appears they would prefer a hearing (for which you will have to pay a fee priced according to the size of your claim). There will be very little time at the hearing so you need to focus on your key arguments. There will be no time to log into IHG or anything like that and it is anyway a pure distraction which suits Creation more than you. You might get ten minutes if you are lucky, but if you can’t make out your claim in the first five then there’s a problem anyway. Whatever @LL says, any loss is currently entirely hypothetical; it would be different if you had stayed at a hotel that you could prove you could have used the voucher at, had it been awarded at the time and thus suffered an actual loss. This is the difference between compensation and a loss of chance claim.

    From what you say, Creation has left quite a few things out, which will be entirely intentional. It’s very poor practice and highly irregular but again typical of street fighter solicitors to try and ambush you at trial, so you need to try and join the dots to anticipate arguments so you can rebut them.

    It sounds as though both parties have put lengthy submissions which unfortunately doesn’t make things easier; don’t count on the judge reading everything.

    Jon

    Thanks @LL and @JDB – useful comments as always! 🙂

    That’s a very good point about things they may have left out, and ambushing me at trial (something I have suspected from the outset they might try – I even mentioned it in my post-LBA follow-up letter to Creation). I can think of one line of attack they may try, although I believe I can rebut it, and there is evidence in their own defence filing that would count against it, I think. I suppose the concern is the unknown unknowns 😉

    Lady London

    Please keep us informed Jon.

    Interesting tip about crystallising the loss of points/free night JDB. Lots of people will have used some IHG points towards a free night especially since Creation stopped paying points due and before their claim is heard. So their loss of earned points Creation failed to pay can most definitely solidly be crystallised into a loss and not challenged as only a ‘loss of chance’.Thank you.

    JDB

    Please keep us informed Jon.

    Interesting tip about crystallising the loss of points/free night JDB. Lots of people will have used some IHG points towards a free night especially since Creation stopped paying points due and before their claim is heard. So their loss of earned points Creation failed to pay can most definitely solidly be crystallised into a loss and not challenged as only a ‘loss of chance’.Thank you.

    You still need to win your case in the first place for compensation (and quantum thereof) to be considered – crystallisation alone isn’t enough.

    JerrySignfield

    2. The terms and conditions of the IHG Rewards Club apply (as well as the Credit Card T&Cs, and the Credit Agreement), and therefore because IHG has the right to modify the programme terms and benefits etc, so does Creation… (and they also seem to be hinting that because the IHG terms fall under US jurisdiction and provide for arbitration by the American Arbitration Association, so should this case).

    The pushing of the the IHG terms seems deliberate to try and confuse and hide the fact that it is irrelevant but for people unfamiliar with how it works, it could be misconstrued. If Amex didn’t award Avios points and claimed that in BA’s terms that BA have the right to change the program it wouldn’t go down well.

    • This reply was modified 52 years, 9 months ago by .
    Crafty

    Finally getting around to submitting my FOS referral, spent all evening on it, and… 500 Internal Server Error. Repeatedly.

    Brilliant. It’s due by the weekend at latest! I’ll have to try again tomorrow!

    JDB

    2. The terms and conditions of the IHG Rewards Club apply (as well as the Credit Card T&Cs, and the Credit Agreement), and therefore because IHG has the right to modify the programme terms and benefits etc, so does Creation… (and they also seem to be hinting that because the IHG terms fall under US jurisdiction and provide for arbitration by the American Arbitration Association, so should this case).

    The pushing of the the IHG terms seems deliberate to try and confuse and hide the fact that it is irrelevant but for people unfamiliar with how it works, it could be misconstrued. If Amex didn’t award Avios points and claimed that in BA’s terms that BA have the right to change the program it wouldn’t go down well.

    It’s fairly standard stuff for this sort of solicitor in small cases. It’s deliberately difficult to handle because if you attempt to rebut all their bad arguments you actually risk giving credence to them and additionally waste all your time addressing them rather than putting forward your own arguments. They play on the fact that in the very short court time allocated (during which they will inevitably bring up/ambush you with new bad but prejudicial arguments) some of their mud will stick. I’m afraid that for those who were playing extreme MS, it’s a matter of being hoist with your own petard.

    It is quite strange that, of more than a dozen people who said in November/December they were going to MCOL rather than FOS, we have no reports of wins or losses.

    memesweeper

    @jdb

    I went straight to MCOL, but not especially quickly. I had some rather lovely holiday time to enjoy instead. I’ve still not had a hearing. Due to an adverse change in personal circumstances I can’t give the case prep the care and attention it needs. I will report on my failure once the court slaps me down 😊

    JDB

    @jdb

    I went straight to MCOL, but not especially quickly. I had some rather lovely holiday time to enjoy instead. I’ve still not had a hearing. Due to an adverse change in personal circumstances I can’t give the case prep the care and attention it needs. I will report on my failure once the court slaps me down 😊


    @memesweeper
    don’t get me wrong, some will win and others will lose. The case isn’t that strong either way, so particularly for those not familiar with the process, they need to be fully prepared for unconventional tactics/asymmetric warfare and fight back accordingly. @Jon seems to have been negotiating the many chicanes set up by Creation rather well so far.

    Jon

    Thanks @JDB 🙂 Time will tell… Whatever the outcome, it will have been a very useful learning experience. It has been many years since I was last involved with the courts, aside from jury service (which I somehow got called for three times!).

    I was wondering also about other MCOL cases – mine has been delayed a couple of times on a technicality, so I had expected others might be further along. I’ve been assuming either they’re still in progress, or lost and not reported here, or perhaps settled but subject to non-disclosure agreement.

    Re the MS point – it will be interesting to see if they try to take that line. Not something I’ve engaged in. But even for those who have, would Creation be able to prove it without having access to financial records from other banks (which presumably might open up all sorts of data protection issues)?

    JDB

    @Jon the small claims track is supposed to be cheap, quick justice so there isn’t time for reams of evidence to be considered. It’s a quick fire decision on the balance of probabilities so nobody has to ‘prove’ anything or risk data protection issues.

    You get to go first and if they wish to bring up MS to poison the well, they will probably reply saying something along the lines – we were doing a periodic review of accounts and came across a series of dodgy transactions inconsistent with application information (maybe turnover on account twice declared income), using an unusual intermediary card, excessive cash type transactions, ATM withdrawals, paying off other credit cards, operating someone else’s card etc. etc. so we closed the account. Not reasonable for customer to expect BAU once notice of closure served – that’s just a statutory period to allow customers to make alternative financial arrangements. The claimant has been rinsing us and now quite incredibly wants to be given various benefits (that do not form part of the credit agreement) to which he is not entitled. The (unregulated) points terms say we can modify the terms as we have done. He alleges an inequality of arms citing Schedule 2, but there is no such inequality re account closure as the customer can cancel without notice and we have to give 60 days – i.e. he can stop the benefits without notice.

    If your claim includes a voucher due after the closure date there are additional issues.

    Some or all of this may be nonsense, but it’s highly prejudicial and once said, difficult to forget or rebut. They can effectively make up all sorts of stuff with half truths and generic comments.

    NorthernLass

    Where does it say that Creation can modify the terms? I thought they were relying on the argument that it’s IHG that can do this?

    Surely it should also be considered that there was no communication to the effect that points and free nights would cease to be awarded once notice of account termination was given, therefore the customer did not have the full facts (and could have decided to spend their money elsewhere).

    I can’t see that spending twice declared income would be an issue as household income can easily be double that of one person.

    Anyway, we submitted 2 FOS complaints over 4 months ago, one was allocated a case handler about 4 weeks ago and I am getting no response to my weekly emails to the FOS asking for updates!

    What happened with the case where Creation was ordered to compensate the claimant? I’m sure it’s on this thread somewhere but I’ve not seen any recent references.

    The Urbanite

    I went to the FOS and they determined compensation was due. Creation contested it almost 3 months ago and I’m waiting to hear back from the FOS.

    My complaint well predated the mass closures, think mine has been ongoing since 2020.

    NorthernLass

    @The Urbanite, thanks, I’ll make a mental note that it was you! Clearly it’s going to be a long slog with the FOS …

    JDB

    @Northern Lass my earlier post dealt with matters raised on this thread in the last few days and specifically re modification of terms related to Creation’s defence of @Jon’s claim and @JerrySignfield’s post yesterday that highlighted the pitfalls of how the terms could be (mis)construed by someone. As the award of points/vouchers isn’t part of the regulated credit agreement, that too doesn’t help. If you declare an income of say £75k and put £150k through one card account, yes that will raise eyebrows even with household income, and obviously it assumes you have no tax to pay, other outgoings or other cards which they know you have etc.

    It is a very bad idea to hassle the FOS. It won’t expedite matters, so you just risk antagonising the handler. They are probably being slow because they haven’t heard from Creation, but they will be sympathetic as the FOS itself and most of the firms they deal with are chronically understaffed and faced with a rising caseload. If the handler finds in your favour, it is highly probable that Creation will ask for an Ombudsman decision so you are still many months away from a final decision.

    • This reply was modified 52 years, 9 months ago by .
    n3jly

    My claim with FOS has just been put back in the queue for a new case handler as my current one seemingly has too high a workload. Anybody else had this happen? Does this mean starting again from scratch?

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