Just had a modest victory from the FSO. Had a number of charges refunded on the grounds that when I was making the monthly contractual payment on time they were wrong to impose late arrears fees or litigation fees despite the fact there were uncleared arrears (from past charges)

Excellent news....any chance you can post up the 'decision' on here (minus the personal details) This will hopefully help others...

I will post extracts from this decision later on today.

The rest of the decision was not good news and I will be challenging it. Acenden started legal proceedings in August 2011 for repossession after we were late paying in May last year. We made the payment up in full within three weeks so we have had no missed payments at all and all arrears solely consist of charges, nearly all of which they have agreed to refund. The FSO have upheld Acenden's right to repossess on the grounds of one late payment. The application for repossession was made one month into the statutory period that Acenden have to answer a complaint from us - which was for the unfair charges to be reimbursed - and under the OFT guidelines for unfair practice, taking legal action whilst they are considering a reasonable complaint is defined as an unfair practice ( according to the OFT. I would argue that if a practice is "unfair" under OFT rules then they are in breach of the FSA requirement to "Treat Customers Fairly") As our complaint was successful it was of course "reasonable"!!!! I also argue they have breached a number of MCOB rules as well as their action was blatantly not after all attempts to negotiate had failed, as we were paying the monthly contractual payment with an overpayment according to an arrangement. Although they agreed to remove many of the charges in response to our complaint (and have subsequently agreed to remove others in response to our complaint through the FSO) and agreed in October last year to adjourn their application for repossession they refused to remove their application from the listings and told us they could only do so in person - which is a lie - so for six weeks the repossession application appeared on the court listings until the day of the hearing in December. We have now been charged £414 for their adjourned application, which presumably includes the cost of travel across the country to remove the application - something they could have done in five minutes on-line - and we do not see why we should pay for an action they should never have taken. Had we gone into court we think the judge would have probably dismissed their case for repossession so it was a vexatious application in any event. Presumably Acenden were hoping we would not defend the case and not attend and they could get our house without a fight. I have complained about their refusal to abide by OFT guidelines and Acenden say they do not have to. I'd like to know why as it is a consumer credit act agreement. I would also like to know why the FSO thinks they neither have to abide by OFT guidelines or MCOB rules and why Eurosail does not have a consumer credit agreement but the FSO to date has refuse to answer these points.

Not giving up on this one. anybody out there with any advice or experience with MCOB?

Sappho

Just reading the above post something that occurs to me would be to question if it's a consumer credit agreement, whether MCOB is relevant.

Also, is this your first/main mortgage or a second mortgage or secured loan?

How much was it for?

Did you have PPI and if so, do you think it was suitable for you?

Thanks for responses. It is a relatively small second charge loan governed by the CCA 1974. As I see it, a CCA 1974 loan should be regulated by the OFT - which means that the Guidelines on Unfair Practice should apply. However, Acenden (and at the moment they are being backed by the FSO) say they are not regulated by the OFT. The OFT themselves disclaim responsibility as it is a secured loan and they say it is regulated by the FSA. The FSA do not regulate second charge loans, so strictly do MCOB rules apply at all? So I have a regulated CCA agreement secured against my property which appears to be neither regulated by the OFT or the FSA. Eurosail as I have mentioned elsewhere do not have a CCL although they say in their prospectus they will obtain one.

It is not my strongest argument but I there is a mis-selling point here. When you sign up to a loan and sign a consumer credit agreement at the back of your mind you expect that this agreement would be regulated, ie there is a regulatory body behind it, that it is a legal document that confers rights and duties for both parties.

Caro thanks for your post. By all means move this thread. I would have done so but I did not know how. I had a frontloaded PPI and I am hopeful I will have this refunded through the FSCB.

Sappho

Was your loan for less than £25k or taken out after April 2008 ?

If it was over £25k and taken out before April 2008, it would explain the answers you have received. If it was for less than £25k or taken out after April 2008, the person who told you it is not covered by the OFT is very much mistaken.

It was for £15000 and taken out in 2006. I was told by Acenden's' customer liaison officer that Acenden were not required to abide by OFT rules or guidelines. I rang the OFT who told me that the OFT does not regulate secured loans as these are the province of the FSA. Both of them were wrong to my mind.

Thanks for your response. My game plan now is to appeal the FSO ruling that Acenden were entitled to repossess my house on the basis that we had a late payment as their action breached a number of clauses in OFT "guidance for lenders and brokers" I can see why MCOB rules do not apply as it is a second charge loan but the OFT guidance has very similar wording.

I found these quotes of the expected transfer of regulation:

"In December 2010 the Treasury launched a consultation on transferring the regulation of consumer credit from the OFT to the new Consumer Protection and Markets Authority"

"Presently, the Office of Fair Trading (OFT) regulates secured loans with the ultimate aim to protect the consumer. However; it has now been confirmed that from the end of 2012 the regulation of secured loans will transfer to the FSA who currently regulate the mortgage market."

This report states that the transfer is not expected to happen until 2014......

http://www.cmm-group.com/en/news/news/posts/?prId=71&Transfer%20of%20second%20charges%20to%20FSA%20is%20a%20long%20time%20coming

Hope this helps shine some light on what you are up against Sappho.

Apple

I found these quotes of the expected transfer of regulation:

 

"In December 2010 the Treasury launched a consultation on transferring the regulation of consumer credit from the OFT to the new Consumer Protection and Markets Authority"

 

"Presently, the Office of Fair Trading (OFT) regulates secured loans with the ultimate aim to protect the consumer. However; it has now been confirmed that from the end of 2012 the regulation of secured loans will transfer to the FSA who currently regulate the mortgage market."

 

This report states that the transfer is not expected to happen until 2014......

 

http://www.cmm-group.com/en/news/news/posts/?prId=71&Transfer%20of%20second%20charges%20to%20FSA%20is%20a%20long%20time%20coming

 

Hope this helps shine some light on what you are up against Sappho.

 

 

 

Apple

Whilst the information posted by Apple is correct that in time the FSA will take over second charge regulation, the information is out of date.

It is adviseable to keep abreast of developments.

As confirmed below by HM Treasury, it will not now happen until at least 2014.

http://www.hm-treasury.gov.uk/fin_sector_mortgages_enhancing_consumer_protection.htm

Until then, providing the second charge loan is subject to the CCA, it is subject to the OFT.

Sappho

It might be an idea to approach the OFT again, you could email this link

http://www.oft.gov.uk/about-the-oft/legal-powers/legal/cca/second-charge-lending

This is straight from the horses mouth 'second charge loan... .... a further loan secured against their home'

Be mindful that the FOS is little more than a limited company with statutory powers. If a Court has made an order, the FOS will not and is unable to say the order of the court is wrong.

Whilst the information posted by Apple is correct that in time the FSA will take over second charge regulation, the information is out of date.

 

It is adviseable to keep abreast of developments.

 

As confirmed below by HM Treasury, it will not now happen until at least 2014.

 

http://www.hm-treasury.gov.uk/fin_sector_mortgages_enhancing_consumer_protection.htm

 

Until then, providing the second charge loan is subject to the CCA, it is subject to the OFT.

Thanks wfspayback

I'm happy for you to 'correct' me as and when it is necessary - but, yet again, in this instant, you correct nothing........my post does quite clearly state "This report states that the transfer is not expected to happen until 2014'....

I also agree with you, it is important to keep abreast of developments : )

Apple

Have downloaded the OFT second charge lending guidance and will quote from this in my appeal. Thanks for pointing me in the right direction.

Just had an email from the FSO. They confirm MCOB does not apply but have given some interesting guidance. If an OFT guideline has been breached they will not necessarily rule against the company unless it is manifestly behaving unfairly. Even if the company is acting within the guidelines they may rule against on the grounds of unfairness. This is useful but quite tautological because if the company fails to abide by the guidelines on unfair practice, then its behaviour IS defined as "unfair". I think the tactics of all these companies is simply to drive us borrowers to insanity so we just hand over the keys gibbering. Anyway OFT rules apply so that point is now answered. Acenden lied when they said they don't have to abide by them.

thanks for all the help. will post when I have any news.

Well done Sappho, you are making some real progress here.

Sounds like you are taking back control from Acenden. They can say what they want, you now know the truth so you are in a stronger position.

Keep pushing them

You should have gone to court. Ask them for a full breakdown of costs with receipts. If they took you to court during the time that you were in dispute then that is unfair. Have they already got a suspended repo. against you? 1 month in arrears seems a bit sharp even for Ass'end 'them. Appeal and appeal again if it needs that, get everything from them in the way of data and check it all. They don't do fair, they never have, so you need to be a smarter rat that beats the trap.

No they don't have an SPO, but I guess they might have thought they did and hadn't checked properly. They didn't have a leg to stand on if we had contested it in court.

If it's in dispute then they have no right to charge for the court fees when it didn't go ahead. If they initiated it and adjourned it then it's their problem to deal with. Be tough with them and don't take no for an answer.