Hi Fred

As I see it, the claiming of compound contractual interest (CCI) has little to do with the FSA or FOS per se (though the FOS do comment a bit about restitution). It is a basic legal principle that can be argued when money has been wrongfully extracted, as the Sempra case demonstrates.

Sorry, I should add that this is only true IF you're not going through the FOS for your claim. If you are, and you wish to be awarded CCI in addition to capital and statutory interest, the FOS adjudicator would need to agree with that.

Hi Fred

As I see it, the claiming of compound contractual interest (CCI) has little to do with the FSA or FOS per se (though the FOS do comment a bit about restitution). It is a basic legal principle that can be argued when money has been wrongfully extracted, as the Sempra case demonstrates. It is somewhat confusing to link it to the PPI Judicial Review in anyway. The JR concerns itself with the reasons for PPI refunds and the principles that apply etc.

It remains open to any claimant to seek to recover CCI on any capital amounts they have had to pay to a lender, as long as they are happy with the case law around doing so and that a higher claim amount (which claiming CCI produces) may spur the lender to fight their claim more assiduously. But Sempra is established precedent so people can and are using it and getting results.

Hi Fred_F

Have you had a good look at the ICOB rules? I understand that these are directly actionable in law. The way I see it (and would therefore argue it), the FSA principles and their endorsement within the Judicial Review gives the Principles at least persuasive authority in law. Both ICOB and the Principles have come from the same source (FSA), have similiar purpose and the JR mentions this. There is now an underlying recognition that providers aren't expected to simply fulfill the less strict standard (ICOB) whilst ignoring the Principles.

Hi folks, no, no thread as I've not had a PPI reclaim to speak of yet. But we shall see, I may start one to assist a friend in the near future.

You're right Caro that the bases for the miss-selling is unique to the case at hand, I think though, a template that covered the majority of reasons would be helpful.

Reb, thanks for the link. I'll take a look when more able.

BTM,thanks for your input it shows there are possible arguable grounds,

Imo, YES

tifos experience has been mirrored by more than one complainant

and in a recent court case worryingly the lender quoted the Supreme Court decision on bank charges as a defence to the borrowers claim of the actual sum levied of unfair arrears management fees being an unfair amount,claiming the lender was in breech of unfair contract terms act and in breech of mcob rules and fsa findings The lenders defence argument was upheld apparently for the reasons above

Are you sure? We need to be very careful here about exactly what was pleaded by whom. Every loss is not the same nor is every win! This sounds to me like what started happening just after Carey where lenders, DCAs and their Sols started using the bits of Carey that they liked to try and support bringing reconstituted agreements as proof of proper execution when Carey said no such thing. Some Credit Card companies have tried to use this same SC ruling on bank charges argument to squash default fee refund claims as well, hoping to fob people off. Interestingly, they soon started paying out when the narrow scope of the ruling was pointed out to them. Sols & Barristers have been known to misdirect judges in the past; judges have been known to be lazy, thus going with the flow rather than thoroughly examining the ramifications of a case. As an example, Caggers have been successful when defending claims against them brought by lenders actually relying on Carey allowing them to use recon docs in court. However, when certain sections of the very same Carey ruling (relating to valid proof of execution) were highlighted by the defendant, the case went in their favour. This shows that there is often more to these issues than the 'win or lose' headlines we all like to see.

and the same reasons given to tifo by the fos eg. the fsa findings against gmac and the like are particular to them only and not precedental to all other lenders.

Again, it's not just about throwing the 'Gmac was fined so you must pay up' line at lenders. It's about understanding WHY GMAC, Kensington, Deutsche Bank etc were fined by the FSA. What were the specific failings they deemed unacceptable conduct? If this is repeated elsewhere then it comes under the same condemnation. and the FSA itself said this, that their actions were a warning to anyone else involved in the same practices and they needed to shape up. This is how I've been focused in my own dealings..

So unless your lender is fined youre stuffed

Definitely NOT. I've seen GE Money/IGroup, Birmingham Midshires, Mortgage Express and even BOS refund mortgage arrears fees in the past. None of these were fined to my knowledge.

and Acenden in this case have a licence to charge whatever fees they like (already twice that of the gmac fee the fsa found did not actually truly reflect the true cost of an administrating an account in arrears (£45) and more than 3 times the figure Northern Rock originally stated was the true cost, £25.

Needless to say, I don't see it this way. If the only defence Acenden have for not refunding mortgage arrears fees is the SC ruling on bank charges then it's only a matter of time before someone highlights that it does not apply in the same way to mortgage accounts and their charges/fees.

Hello There

Any news? Is it all wrapped up?

Folks, please keep in mind, that the FOS' rulings are only binding on the regulated entity. They are not binding on the individual.

Does anyone know whether CAG or MSE have POCs for PPI claims? If folk are being directed to legal action, isn't it about time?

In fact, I believe that if morgage lenders were to try to use the same argument that banks eventually used to 'win' the bank charges saga - you know the one about cross-subsidising of costs, profits and inclusion in overall package of services etc, they could get in quite a bit of trouble. The tolerance (and associated consequences) for default is so much lower in the mortgage arena that this would simply be untenable as the whole goal of the mortgage market is responsible lending. Which means defaults are supposed to be kept to an absolute minimum.

This is quite different from a personal current account which, though it may come with overdraft borrowing features, is not primarily designed with responsible lending and borrowing as it's primary objective.

Seems that no one is getting charges back through the fos or the courts who are simply applying the Supreme court decision unless the lender has been fined and ordered to refund.

I and at least one other person I helped (not a Cagger), managed to get some arrears fees back without having to go to the FOS or the courts! In fact, my friend has a bit of a property portfolio so most of the accounts he got money back on were Buy To Let mortgages!

Again, as has already been commented upon in a number of places in CAG, the SC ruling does NOT apply to anything other than what the SC claimed it did. For example Credit Card companies are still paying out to default fee claimants as they know they can't really rely on the SC judgement.

Hi Tifo

I'd appreciate further clarification from you.

with a recent review, Can you explain what you mean by a 'review'? Who conducted the review and on whose behalf? the charges are fair because:

 

1. the bank has provided a breakdown

What did their 'breakdown' constitute?

2. I agreed to the T's and C's

Yes, but T's & C's have to be lawful and in line with statute. You cannot be bound to something that is not lawful. Would have agreed to pay those monies if you'd known they were potentially unlawful?

3. the bank applied them because of my conduct of the account (i missed payments)

Yes, but that does not mean they had to - they chose to - for their own reasons. Does not make it right or fair.

4. reg 5 and 6 of the UTCCR do not apply as i can't challenge the charges on price

Why?

5. i cannot use s.140 of CCA (unfair relationship) because that's for the court

Mortgages are outside CCA anyway, unless it's a secured loan.

6. the FSA fines on other lenders are not relevant as they haven't fined my lender

They are relevant. It's not just the fines, it's how they conducted themselves such that the FSA came to fine them. It's also the directives the FSA issued as a result of their arrears management investigations in general.

7. the test case on personal account overdraft charges said all such charges are fair

No it didn't. The SC was quite clear in narrowing the scope of their ruling to personal current accounts and nothing else. They also suggested there were other avenues for examining such charges as potentially unfair!

8. they're set at a market rate

By whom and what is the 'going market rate'? A quick poll will show that lenders vary in what they charge for essentially the same 'breaches'.

9. initially they said they do not investigate arrears mortgage charges but later said they look at the charges as part of the 'fair treatment' assessment. and much more, but the above are the main points. so how are others getting their arrears charges back through the fos?

In principle, I don't agree with much of this, especially since I and others have had some success re-claiming mortgage arrears fees.

Is the above the FOS' summary findings, what the lender has told you or what you've come to believe?

By the time the banks are done, I very strongly suspect that they’ll end up paying nowhere near the £9billion in compensation that’s been estimated. For the most part, between all their stalling tactics and covert disinformation/misinformation campaigns a lot of would be claimants will simply give up.

I suspect that much of the £9 billion earmarked will ultimately be used to offset their tax liabilities going forward and won’t be a ‘real’ loss after all.

Meanwhile, it’s game on for those who know what to do.

It's yet another stalling tactic. Gotta admit it, these guys have been doing this a long time and they're good.

I think there's a strong case that though a complaint was originally rejected under the 'old rules' so to speak and the FOS complaint period has lapsed, you can always modify your complaint , however slightly , and that makes it a NEW complaint which has to be looked at, all over again!

Two can play that gamo!!!

Does CAG have any PPI POC templates or anything that would be suited to that?

No, you don't want to take anyone to court for PPI. You should complain and escalate it to the FOS should you need to.

 

The lender is indeed responsible for their products bur they aren't responsible for mis-selling it where they didn't sell it.

 

Most IFAs operate within 'networks' and I think I'm right in saying that complaints about individual IFAs are the responsibility of the network. Failing that then approach the FSCS http://www.fscs.org.uk/

 

What the FSA are saying that as far as the consumer is concerned the complaint should be dealt with by the broker and if the broker feels that the lender bears some liability then the broker may have have recourse in the courts with the lender, That process does not involve the consumer and is separate to the broker's liability to the consumer.

Contador, may I ask what you would do in this situation? i.e. where the 'seller' was an IFA who has since gone out of business. Thanks.

Yes, Els, but it's kind of moved away from just the JR onto exactly who to pursue for PPI for PPI mis-selling claims.

So it probably IS worth having a new thread devoted to that - it would help many people.

My own personal view is that people should pursue whoever they can - one and all if necessary. Contador has a good point about legal liability for the sale. Yet Dx has a very pragmatic and perhaps more powerful point in that you should pursue whoever you've been paying premiums to - whether it's single premium PPI, periodic or added to the loan/credit facility.

It's also fairly obvious that by receiving the premium money they (lender and or provider) definitely have a stake in the validity of the sales process and the suitability of the product for that buyer. After all, when a punter puts in a claim, the provider doesn't send him/er back to the 'broker' first, they assess it themselves etc.

From the BBA Website http://www.bba.org.uk/media/article/payment-protection-insurance-complaints-handling

Payment Protection Insurance - complaints handling 21/04/11

The BBA's members will continue to handle all PPI-related complaints in accordance with FSA rules. Where the assessment of the complaint would not be affected by the judicial review, these complaints will be handled in the normal way. If the complaint will be impacted by the judicial review, and cannot be resolved at this point, then your bank will write to inform you.

Until a decision is taken on an appeal, any complaints that are directly affected by the judicial review and can not be decided now will be placed on hold, and we will continue to work closely with the FSA to ensure that all complaints are appropriately handled.

Customers should be assured that all complaints will be reviewed - even those delayed by this judicial review process. There is no deadline for receipt of complaints. If customers have a problem regarding PPI they should contact their bank and, if necessary, complain in the normal way.

We felt compelled to take on a Judicial Review to clarify the standards relating to PPI complaints handling after exhausting all other avenues with the regulators to reach a solution. We consider that process is still ongoing as an application to appeal may be made and will not be completed until the right to appeal is lost or waived or any appeal hearings are resolved. We are presently reviewing the judgment very carefully and considering whether to make an application to appeal, which must be lodged by 10 May 2011.

Any heads up on whether they're working on an appeal?

Any thoughts on what their real chances of success might be?

Even so, I still think lenders should at least be good enough to keep addressing existing and current complaints and making refunds as and when they arise.

This way they only have to fight the one major battle with the FSA on the 'root cause analysis' issues which came about as a result of their 'systemic failures' in the first place. They'll probably eventually lose that battle too but because the cost to them could be so much higher, it's probably worth dragging things out a bit.

This could turn out to be even more expensive for the banks. By delaying these claims, they could end up liable for far more by way of restitutionary interest and damages. As someone has pointed out, it now seems moot that there was definitely large-scale mis-selling so it is highly likely that the majority of existing PPI complaints will be upheld and therefore paid out.

I don't think the banks were too upset about PPI refunds in general as that had been going on for years. It's the introduction of this 'root-cause analysis' remedy that the FSA introduced that's really ticked them off. It's one thing to address complaints as and when they arise. It's another thing to go and seek out people that have probably been mis-sold to in the past in order to offer redress.

I don't support them, but I can certainly see why the banks are in a tizz as this'll certainly cost them a lot more than bank charge refunds.

Flower

What track has this claim being allocated to? It's probably not small claims is it? Unless you've already done so, I would very strongly suggest you have a good read of the threads below as they deal with your issues head on.

You should probably read this one first:

http://www.consumeractiongroup.co.uk/forum/showthread.php?283443-Embarrassed-Defences-and-the-problems-with-them.&highlight=

http://www.consumeractiongroup.co.uk/forum/showthread.php?241827-Legal-Action-how-to-start-off.-IMPORTANT-IF-YOURE-BEING-SUED&highlight=

http://www.consumeractiongroup.co.uk/forum/showthread.php?255329-CPR-part-18-vs-CPR-31.14-Confused-well-read-here&highlight=

http://www.consumeractiongroup.co.uk/forum/showthread.php?295908-some-very-important-information-from-a-place-where-no-one-can-see-%28moved%29&highlight=

http://www.consumeractiongroup.co.uk/forum/showthread.php?173201-why-you-shouldnt-use-section-77-78-CCA-1974-if-you-want-the-signed-agreement&highlight=

If your case is not Small claims and the claimant is in breach of your CPR requests, your strategy could actually be more simple.

PLEASE do not be put off by the number of pages in these threads, there're always a lot of "filler posts" in the larger threads so you can just skip those! You're your own best helper so please put in the effort. Also, even if you don't find the answers you need, it is my experience that when I understand more about a subject, I can ask for input more meaningfully.

HTH

Thanks for the update.

Keep surviving!

Congrats Floricita

Well done and thanks for the update.

Floricita

How much has this cost you in terms of court claim fees, in total, so far? I take it the will pay these costs as part of the settlement?

Ss

How much has this cost you in terms of court claim fees, in total, so far?

Zingy

How much did this cost you in terms of court claim fees, in total? I take it they paid this part when settling?