I am assuming that as:

that the Court has to take into account s8 when making judgement, but only if the defendant raises it.

 

In terms of proportionality, would it be proportional that missing a couple of £300/month payments (as an example) result in losing your home?

 

Possibly more importantly, if the balance of the account was in dispute due to arrears charges, this dispute would need to be resolved before possession could be given... Would any BS be willing to try and justify their arrears charges in a Court?

 

At least that's as best I can interpret it... I need more time to try and understand...

This seems to be the opinion expressed here:

Although a private landlord is not a public authority, the court is a public authority. In Zehentner –v- Austria [2009] 20082/02 ECHR 1119 the European Court held, in a case involving two private individuals, that where there was no assessment of the proportionality of the decision to sell the property in question, the individual’s Article 8 rights had been violated. A similar statement was made in Belchikova*. This is in contrast to an earlier decision*. Unfortunately, in Pinnock, the Supreme Court did not decide whether Convention rights could be enforced against private landlords. Until there is a decision, such landlords may find that defendants rely on Article 8 in mandatory possession claims arguing that they should be able to argue that it is not proportionate to grant a possession order, and domestic law is not compatible with Article 8. This will result in additional costs and delay as only the High Court (not the County Courts) can determine incompatibility issues. If a proportionality test is ultimately introduced it will make it harder for private landlords to obtain possession as they might for the first time have to argue that it is proportionate to make a possession order.

 

That's all Ok for BF to write but what does he actually know? That's Redstone. And I have no idea where he gets the thought that damages won't be offered from the Fos!

 

To tell people not to make a complaint..hmpphh..It's a free option and not all people can afford to waste the courts time without mediation as he may have done. The court option is always open every step of the way unless you accept a final decision. For further issues you still have other steps....you can take them to court if the Fos haven't looked at or addressed them.

 

To say it's 'completely clear' .......If it were that clear everyone would be getting a refund and not being dragged through the courts.

I think that the evidence that the FOS will only award 8% interest has been demonstrated many many times over the years. Despite the fact that the FOS site says that they calculate their awards in a way which is intended to ensure that the customer has not lost out all, this is very definitely not the case. FOS awards never seem to consider or take account of any ancillary damage your problems which might have been caused by the misconduct of the financial institution. I'm certainly not aware that the FO S have ever made an award calculated on the basis of restitutionary damages– or even contractual interest for that matter.

FOS decisions routinely take 12 months at least – and of course we hear lots of stories of cases still being considered as long as two years later. Once again, the overall impression is that the lender is happy to let the case go to the FOS and then at some point much later, to try and settle the matter with a payment including 8% interest. If people really want to avoid court action, then the FOS is the only way to go. There is no doubt that it is completely cheap and risk-free. On the other hand it prolongs the hassle and the distress and the not-knowing. As has been said many times elsewhere on this forum, the FOS is the preferred route of financial institutions and therefore it follows that the County Court route should be the preferred route of ordinary litigants.

Although we have never had a judgement yet which has ended up with an award restitution damages, this is not because such award has been refused – but rather because the litigant has eventually agreed to settle out of court and has accepted the statutory 8%. In all cases where this has happened, it has been well within 12 months and often less than six months – and during the bank charges revolution in 2006, these kinds of settlements were being achieved very often within three months. This kind of timescale is impossible with the FOS.

These FSA decisions – not only in respect of Redstone but also in respect of Deutschebank our brand-new decisions. They are extremely high level and extremely serious. I cannot imagine any financial institution putting up much resistance now to any claim for mortgage arrears charges. Despite this, I can certainly imagine that there will be an attempt – as we found with bank charges – to use tactics to where people out or to persuade people to accept reduced settlements. One of these tactics would be to require people to begin a complaint to the FOS. The FOS have themselves reported that they felt that their own process was being used simply as a hurdle to remedy, and they criticised the banks for that.

If anybody wants to go to the FOS then they should do and we look forward to hearing progress reports about how their complaints have gone. I'm afraid that I don't really expect that people will be very pleased – and as I have said, they will certainly not be offered restitution damages. Furthermore the FOS will not make any orders or recommendations as to the cleaning up of credit files and the FOS will certainly not get involved in compensating anyone for the improper loss of their homes or for distress caused by the imposition of unlawful charges all the registering of improper defaults or other negative entries on their credit files.

The only way to have any effect on financial institutions is to take them to court. If, in 2006 and 2007, bank charges claimants had merely bought their complaints to the ombudsman, the whole matter would never ever have peaked in the test case and the public consideration of the whole issue of the fair treatment of customers.

These FSA decisions – not only in respect of Redstone but also in respect of Deutschebank our brand-new decisions. They are extremely high level and extremely serious. I cannot imagine any financial institution putting up much resistance now to any claim for mortgage arrears charges.

My high street bank does, as do the FOS.

Without repeating myself too much:

1. the FOS say that even though GMAC, Redstone etc have been fined, MY bank wasn't so the Final Notices mean nothing to them.

2. the FOS say that they cannot investigate mortgage arrears charges so will not ask the bank for a breakdown, but consider the charges fair. And since the bank won't give ME a breakdown, who else is left to ask them (other than a court).

3. the FOS say that, in the absence of arrears charges being judged unfair by a court, they remain fair.

4. my bank says the charges are fair and not excessive.

the only people who might benefit from the FSA fines are customers with those banks. Otherwise it doesn't seem to apply to anyone else. And the FSA don't look at individual complaints but refer you to the FOS.

I think that the evidence that the FOS will only award 8% interest has been demonstrated many many times over the years. Despite the fact that the FOS site says that they calculate their awards in a way which is intended to ensure that the customer has not lost out all, this is very definitely not the case. FOS awards never seem to consider or take account of any ancillary damage your problems which might have been caused by the misconduct of the financial institution. I'm certainly not aware that the FO S have ever made an award calculated on the basis of restitutionary damages– or even contractual interest for that matter.

 

FOS decisions routinely take 12 months at least – and of course we hear lots of stories of cases still being considered as long as two years later. Once again, the overall impression is that the lender is happy to let the case go to the FOS and then at some point much later, to try and settle the matter with a payment including 8% interest. If people really want to avoid court action, then the FOS is the only way to go. There is no doubt that it is completely cheap and risk-free. On the other hand it prolongs the hassle and the distress and the not-knowing. As has been said many times elsewhere on this forum, the FOS is the preferred route of financial institutions and therefore it follows that the County Court route should be the preferred route of ordinary litigants.

 

Although we have never had a judgement yet which has ended up with an award restitution damages, this is not because such award has been refused – but rather because the litigant has eventually agreed to settle out of court and has accepted the statutory 8%. In all cases where this has happened, it has been well within 12 months and often less than six months – and during the bank charges revolution in 2006, these kinds of settlements were being achieved very often within three months. This kind of timescale is impossible with the FOS.

 

These FSA decisions – not only in respect of Redstone but also in respect of Deutschebank our brand-new decisions. They are extremely high level and extremely serious. I cannot imagine any financial institution putting up much resistance now to any claim for mortgage arrears charges. Despite this, I can certainly imagine that there will be an attempt – as we found with bank charges – to use tactics to where people out or to persuade people to accept reduced settlements. One of these tactics would be to require people to begin a complaint to the FOS. The FOS have themselves reported that they felt that their own process was being used simply as a hurdle to remedy, and they criticised the banks for that.

 

If anybody wants to go to the FOS then they should do and we look forward to hearing progress reports about how their complaints have gone. I'm afraid that I don't really expect that people will be very pleased – and as I have said, they will certainly not be offered restitution damages. Furthermore the FOS will not make any orders or recommendations as to the cleaning up of credit files and the FOS will certainly not get involved in compensating anyone for the improper loss of their homes or for distress caused by the imposition of unlawful charges all the registering of improper defaults or other negative entries on their credit files.

 

The only way to have any effect on financial institutions is to take them to court. If, in 2006 and 2007, bank charges claimants had merely bought their complaints to the ombudsman, the whole matter would never ever have peaked in the test case and the public consideration of the whole issue of the fair treatment of customers.

Firstly the Fos do award compensation. How you want that to be worked out is not for me to say but it is there. We are looking at several situations and not a one size fits all. You still have the options, and although they go unpublished, they do reach the court stage to settle.

Some people don't have the 'choice' as I've said before. The money, the time scales and the not knowing with the courts too. Some judges don't have a bloomin' clue even when presented with a run of the mill budget sheet, so for them to look a case and to trust in the them to make the right ruling?

I don't think you've been through the FOS, and I wouldn't expect you to have been. 2 years, yes it can take that long but you have a chance to get all your papers in order during that time. I got caught in amongst those encouraged to claim for pennies and that slowed the system down. They had as much right to claim as I had but it put pressure on the service that's understandable. It's no good getting angry or frustrated, these things happen!

An SAR takes 40 days alone and you may need more than one. I went through all this a few years ago and before joining CAG. I feel let down by the attitude shown by people that probably haven't even used the service to its full extent but still slate it.

To make a court claim you need to work out what is you are claiming for and with the confusing and false statements sent out by Capstone it's awkward to say the least. You have to be an instant accountant and paralegal to boot.

On the contrary, my lender was not pleased at all that I used the FOS. And if you care to read the background on the company you'll see that they are eager to gain possession as soon as possible.

My point is that I had a good experience with the FOS and didn't do it for reward. I made mistakes too and I admit that and all was asked for is fairness. Remind me again of the win with the banks? Remind me how much money people have lost chasing the court route for charges? These are homes and houses remember. People that want nothing more than just to keep a roof over their head and probably don't care a hoot about compensation or even know about the interest rate . That can come later. Cleaning your credit file would be one of the last things thought about and you can do that easily yourself with no need to inform the FOS.

Although I respect your views I can't agree with you at this point.

Firstly the Fos do award compensation. How you want that to be worked out is not for me to say but it is there. We are looking at several situations and not a one size fits all. You still have the options, and although they go unpublished, they do reach the court stage to settle.

 

Some people don't have the 'choice' as I've said before. The money, the time scales and the not knowing with the courts too. Some judges don't have a bloomin' clue even when presented with a run of the mill budget sheet, so for them to look a case and to trust in the them to make the right ruling?

 

I don't think you've been through the FOS, and I wouldn't expect you to have been. 2 years, yes it can take that long but you have a chance to get all your papers in order during that time. I got caught in amongst those encouraged to claim for pennies and that slowed the system down. They had as much right to claim as I had but it put pressure on the service that's understandable. It's no good getting angry or frustrated, these things happen!

 

An SAR takes 40 days alone and you may need more than one. I went through all this a few years ago and before joining CAG. I feel let down by the attitude shown by people that probably haven't even used the service to its full extent but still slate it.

 

To make a court claim you need to work out what is you are claiming for and with the confusing and false statements sent out by Capstone it's awkward to say the least. You have to be an instant accountant and paralegal to boot.

 

On the contrary, my lender was not pleased at all that I used the FOS. And if you care to read the background on the company you'll see that they are eager to gain possession as soon as possible.

 

My point is that I had a good experience with the FOS and didn't do it for reward. I made mistakes too and I admit that and all was asked for is fairness. Remind me again of the win with the banks? Remind me how much money people have lost chasing the court route for charges? These are homes and houses remember. People that want nothing more than just to keep a roof over their head and probably don't care a hoot about compensation or even know about the interest rate . That can come later. Cleaning your credit file would be one of the last things thought about and you can do that easily yourself with no need to inform the FOS.

 

Although I respect your views I can't agree with you at this point.

Crapstone, do you have a thread where you have summarised the situation you went through ? If so, perhaps you could post up a link. If not, perhaps you could do this so people do have alternative situations to compare.

I don't think I have one that tells the whole story all the way through on here as I'd already gone through it all before I found the threads on this site regarding SPML and Capstone.

That's a good idea though and if I can dig out all the paperwork I could probably scan up some letters showing how the case was dealt with if you think that would be of help to anyone.

I think that I am going to lock this thread. It has become so long that it is unmanageable. It contains lots of very useful info and people should us it as a source for new threads.

No problem about anyone starting a new thread.

Please do try to keep threads shortish.

Please do try to start your own thread for your own story - even if your story is similar to one already running in another thread. It is much easier for people to find their round and offer help.

Message from Little Dotty:-

Heads up this thread:- http://www.consumeractiongroup.co.uk/forum/showthread.php?297005-Acenden-capstone-spml-pml-lmc-sppl&p=3322618&highlight=#post3322618

Hi

It's been a long time since I wrote her about SPML. 

I started the above thread which gained a lot of response.

In 2011, I gave up my fight due to my partner comitting suicide due to the stress and years of fighting and getting nowhere in court or through FSA.

The property was repossessed and 9 years ago.

Since then I have had serious illness and surgery.

My brain doesn't work as good as it used to due to neurological problems, but, I'm back and ready to fight a new challenge.

For the sake of everything I went through fighting for our home.

I'm looking at going for Mis-selling, against the broker, as the financial advisor is retired.

Unfair charges for late payment fees, Arrears management fees, Litigation Management fee and any other fee they have on there that they slapped on with Ascenden as they are ones who put the final knife in the back.

A mortgage for £96k and apparently owe £158k on total of mortgage and a shortfall of £58k.

Credit File is clear and never shown them on there in the last 5 years.

What I am wanting to know is

- Has anyone challenged and been successful of the above?

If so, could anyone direct me on where to start please.

Topics merged  dotty....all 286 pages.

Andy

you will need to check to see if you are in time to start litigation for this, as mortgages have a limitation period of 11 (or is it 12) years rather than the more normal 6 then you should be OK but they will argue that unlawful fees arent a mortgage so do your homework.

A mortgage is 12 years to claim. This does not show on my credit file.

I'm a bit dubious on sending a SAR in case they start harassing me again.

 There is also the fact that once repossession occurred, it would be an unsecured debt, therefore am I out of the timescale and would it only be classed as a loan?

Catch 22 really!

Not quite....a shortfall after repossession is mortgage capital the money you originally borrowed. For this part of a mortgage shortfall debt, the lender has 12 years to use court action to make you pay. This is under section 20 (1) of the Limitation Act.

If you owe interest ....Mortgage interest is the interest you were charged to borrow the money. Your lender may also charge interest after your home is sold. For this part of a mortgage shortfall debt, the lender has six years to use court action to make you pay. This is under section 20 (5) of the Limitation Act. 

Neither become unsecured.

Topic reopened

Thank you Andy.

Since I last posted nearly a year ago,I have instructed a solicitor to act on my behalf.

Ascenden have been dragging their heels for nearly 3 months now on issuing a SAR for my deceased husband. The solicitor has all my information. I have given old letters with my husbands name on, and his death certificate and our  marriage certificate which have proof of his signature.

I have today received an update from my solicitor.

"

Since our last email, we have been in correspondence with Acenden to challenge the response. Acenden are claiming that they are not required to release documents and information related to Mr. ?. The solicitors here are challenging this assertion and hope to be able to obtain the full unredacted documents.

We will be in touch when we have more information for you. Apologies for the significant delays to Acenden’s response – we are doing what we can to challenge them."

It seems from what the solicitor has told me, from my SAR, that they are looking at unlawful possession of the property. They have seen how they have played in to us being in arrears.

When the sale of the property went through, it wasn't just interest added, but a shortfall of the actual mortgage itself. The monthly payment being made was only paying interest off and not repayment making us over 3 years missed mortgage payments.

It has never shown on my credit record at all since possession in 2012.

The UK GDPR and the DPA 2018 do not cover information about people who have died, so they cannot rely on a section 40 exemption to withhold this type of information. If they receive a request from someone who has the right to access the records in this way example Executor of the estate or solicitor they must comply with the disclosure.

Andy

I am aware of the new GDPR and DPA2018 Rules.

I was next of kin and his executor of the will, therefore, they have no need to drag heels as I have given authority for solicitors to act on my behalf. They just don't want to have a claim against them and drawing out aslong as possible.