Mortgage Debt Counsellors

[Trudy B]

Dear all

 

Quick question

 

I about to complain to the FOS about my mortgage company, not Treating Customers Fairly and other stuff.

 

One of the things they have done is keep sending out their “debt councellor” banging on my door even though I kept saying “no thanks” in writing to the mortgage company because I was already receiving advice from debt charities.

 

On another completely unrelated thread I found the following which I have extracted from the letter posted on the thread :-

 

“Please be advised that I am only prepared to communicate with you in writing. OFT rules and regulations clearly state that you can only visit me at my home if you make an appointment, and I have no wish to make an appointment with you. There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.).

 

Therefore take note that I revoke license under Common Law for you, or your representatives, to visit me at my property and if you send “doorstep callers” to my home, you will be reported for harassment and be liable for damages for a tort of trespass. You would also be liable for conspiring in a tort of trespass by acting in defiance of my instructions and sending someone to visit me nevertheless.”

 

Question : Does anyone know if this same sort of thing applies to me, I said in writing "no thanks, not needed as already getting debt advice from debt charity" so they should not have sent anyone? oh, plus they have charged me for it too! Is it something I can add to my complaints to be made to the FOS?

 

Thanks in advance

 

T

[Montoonie1]

It may be worth first telephoning your mortgage company to find out who this "debt counsellor" is and if he/she is from the company politely pointing out that its not required. In addition, I cannot conceive that the FSA or the Ombudsman would permit a mortgage provider to charge for "debt counselling services", especially if it has been refused verbally and/or in writing.

 

In any event this does not sound correct. I have worked for major mortgage providers and in no way would they have wasted money on debt counsellors (or charged them to a customer) - debt advisories were in written form as per FSA regulations. If you are in arrears by two months or more your mortgage company should have already provided this.

 

Due to the nature of secured lending when you fall behind with your payments you're in a very sticky place and sending strident letters may not be in your best interests. You haven't said whether you've received advice on this from your debt counselling service nor who provided your mortgage?

[Montoonie1]

Did some additional fishing.

 

The FSA are taking a dim view of over zealous approaches to customers in mortgage areas and provide guidance of good and bad practice. One of their suggestions of good practice is as follows:

 

 

• The lender encourages customers to contact sources of free independent money advice, for example by sponsoring a dedicated telephone referral line for their customers. Customers are also actively encouraged to examine the possibility of making insurance and/or state benefit claims.
  
• Customers in arrears, or at risk of experiencing payment difficulties, are managed proactively, for example by:
  
  • having strategies in place to proactively contact customers showing signs of financial difficulty;
    
  • conducting call campaigns towards the end of fixed and discounted rates to alert the customer to increased payments and provide information on the options available to them; or
    
  • following job loss, providing a practical support programme to help people to job-seek.
    

I can't see anywhere here where is states they send out debt counsellors - the clue is "independent money advice". There's other good stuff you may want to look at in the FSA bulletin, which is here: Mortgage arrears and repossessions handling

Hope this helps:)

[Trudy B]

Hi Montoonie 1

 

Thanks for that info

 

Mortgage is a mess and securitised and constantly fighting eviction – it’s been going on for a while. Long story. It’s one of those cases where the securitised mortgage owners want to get rid of their mortgages by hook or by crook so the mortgage company fronting it all is indeed over zealous.

 

Yes, advice has been received from several debt charities for some considerable while now thus no need for their "Debt Councellor".

 

And no, you don't usually complain as you are too scared to when you are in a very vulnerable position and that's how they get away with it.

 

I am already going quoting FSA good practice info in my complaint to the FOS and anything else from MCOB I can prove in relation to my case.

They are not really “Debt Counsellors” and are a seriously grubby little outfit.

 

What I am after is specific info as to whether the OFT rules as stated above apply to mortgages and mortgage companies and as to whether I have a good case that this provides further evidence of harassment and not treating customers fairly? I had told them numerous times in writing this “service” was not required and not necessary but they sent them anyway banging on my door anyway making out they were doing me a favour!!! Plus they have charged me for the privilege …. Profiteering???

 

Any further advice or ideas on the OFT thing above would be appreciated!

 

T

[Montoonie1]

As far I understand it all businesses carrying out credit activities (including debt collectors) have to be licenced under the CCA - there are some exceptions, but these are usually regulated through the FSA or other regulating body or act.

 

Securitised mortgages can be owned by anyone (they were about on the open financial markets) but are usually administered under the purchasor's name by a handfull of outsourced mortgage administrators and this can be up to three layers deep! But that does not mean that the regulations do not apply. I doubt these people who are visiting your home are debt counsellor's, more likely to be debt collectors. Make a complaint to the OFT, as it's bound to investigate. It's helpful when you do to create a log of events: times and dates etc to support your compliant. You may find, as I did many moons ago they have compliants from others involving the organisation you're dealing with.

 

Also (I think you already know the organisation administering your mortgage), talk to the FSA, they have the power to investigate and sanction (though they have limited resources to do so).

 

I'm not sure I'm helping you much in this case, but I hope you've found the above helpful.

 

M1

[Trudy B]

Hi M1

 

Any thoughts, advice etc are always very grateful received

 

Good point about them all having to have a CCL – this lot are FSA regulated

 

I want all my complaint points to the FOS to be as strong and backed up as possible and to make it easy for the FOS because from what I can gather they are so seriously pushed for resources and time is never on my side.

 

I didn’t know as to whether there were any FSA rules and regs experts around that could give a definitive answer as to whether the above OFT stuff applied or if I did included it in my complaints to the FOS that it would completely disregard because perhaps it does not apply to mortgage companies??

 

Thanks again

 

T

[subprimevictim]

Hi Trudy,

I'm afraid to say that complaining to the FOS about your mortgage company will be a total waste of your time. I also complained to them about my "mortgage" company treating me unfairly, charging me £100 for sending a so-called debt counsellor, charging me £50 per month for being in arrears and £650 for a court hearing which never took place, and ignoring my proposals for clearing my arrears. I have just received the Ombudsman's decision stating that the company has not acted unfairly and that I was at fault for refusing a second debt counsellor after the mortgage company had refused the offer of payment put forward by the first one!

I also complained to the FSA, who replied that they might look into it but did not have to tell me the result of their findings.

You don't mention whether your mortgage is prime or subprime, but it very much looks to me that the FOS and FSA are in league with these companies who are trying to bleed us dry, and the victim doesn't have a leg to stand on. I am now going to try BBC Watchdog and the national newspapers as a last resort.

[Trudy B]

Thanks Subprimevictim

 

That doesn’t sound good at all – what was one debt counsellor going to say that the other’s didn’t? Nada!

 

That’s probably why the mortgage companies are doing it because they know that they can get away with it!

 

I have been receiving advice from the charities recommended by the FSA’s.

 

Your experience also confirms that I need to be really specific when referring to FSA publications and what the FSA says they should and shouldn’t do.

 

Any more thoughts anyone?

 

 

T

[Ell-enn]

Hi there, you really need to write to your lender (by recorded delivery) advising them that you have not requested the services of their mortgage counsellor, nor do you have need of them as you are receiving advice from a recognised debt charity. Therefore they should remove any costs associated with these counsellors from your account.

 

If you need any help with a letter, just shout and I'll happily draft one for you.

 

Ell-enn

[Trudy B]

Hi Ell-een

 

This lot are a right bunch.

 

They have received, and acknowledged, at least 4 letters which include the fact that I did not need to see their “counsellor” in my home as I was already receiving advice from debt charities. They are the charites recommended by the FSA and OFT.

 

Made not a jot of difference and they sent them banging on my door and have charged me. Naturaly I did not let them in. I was warned about their “debt counsellors” and upon looking stuff up sure enough they are not “counsellors” at all. Why do you think they insist on sending them and also want them to get into your house??????? !!!!!!!!

 

This firm is deliberately evasive and only respond to the bits of your letters that they want to. The rest they ignor. They have completely ignored my clear complaints iincluding the words "formal complaint" and thus the 8 weeks is up. They have completely ignored all DISP regs.

 

I am trying to put together a very concise complaint to the FOS quoting all I can from the FSA’s publications etc and showing where they are not following this and providing documentary back up.

 

I am trying to get my ducks fully lined up and I am also considering sending a copy of the complaints to my MP, the FSA and various other people because if they are treating me like this with constant bullying then they will be treating others like it too.

 

Thus the question re the OFT rules as in post 1 and does this also apply to mortgages and mortgage companies?

 

 

Or how do I find out? Do I ring the FSA tomorrow or the OFT?

 

T

[Ell-enn]

Sorry, didn't realise you'd already done all that. I think it's a good idea to get your MP involved

[Trudy B]

Hi Ell-enn

 

No worries at all. This is a long saga and I have learned a lot especially from you guys on this site. A real eye opener.

 

Yes, that is a good idea, .... My local MP is on the Treasury Select Comittee too ...... but with all that's going on at the moment the question is for how long???????

 

 

T

[mercyblue]

I would expect they want to be in the house to be able to better value it.

[Trudy B]

oh yes indeed Mercyblue! You've got it in one!

 

Any more ideas on post 1 anyone?

 

Are there any FSA rules and regs experts around that could give a definitive answer as to whether the above OFT stuff applies (as in post 1)or if I did included it in my complaints to the FOS that it would completely disregard because perhaps it does not apply to mortgages and mortgage companies?????? :-?

 

T

Edited June 8, 2009 by Trudy B
typo

[Montoonie1]

Trudy B

 

Anything the FSA advises or requires firms to do in regulations will be considered by the FOS. If there is a case to answer the FOS will put it to the mortgage company. All the FOS can ultimately do is, if the financial firm is considered to be in the wrong, put the customer back to a position he/she would have been in had the regulatory infraction (miss-sell/improper behaviour etc) not taken place. There is no specific information on "debt counsellors", particularly ones you have to pay for. But this is why financial service firms are heavily regulated - they cannot be trusted to operate ethically!!

 

Since about 2004 all first mortgages are sold and administered under FSA regulations (Mortgage Conduct of Business or MCOB), which includes rules and guidance on how to handle arrears and repossesions. All firms must abide by these regulations otherwise the FSA cannot licence them to carry on mortgage activities. I suggest in your compliant you concentrate on the behaviour of the mortgage company in question, unless you can show misconduct in their business processes or misconduct in the original sale of the mortgage to you. And remember second charge mortgages are not regulated.

[Montoonie1]

Just had one more thought.

 

If they're charging you for the services of a debt cousellor that you don't want and have stated that you don't want, to do so successfully requires that you must have signed a contract that permits this activity (and at the time of signing this was made clear to you)? Does your contract contain such a clause... are your mortgage company insisting that this is policy - and THEREFORE CONTRACTUAL???

 

Trudy B this is a bit of a punt, but forget regulators, go back to common a goodness contract law, it's much firmer and that's either way (that's what this site is all about isn't it?). You might want to cehck your contract before considering anything below

 

I've put together an example letter below, you might one to use. I have no idea if it has any force of law behind it - it sounds good, but 'sounding' and 'being' are two different things. But I cannot see why you should be charged for anything that is not within the known terms of a contract - after all this is what your mortgage company is trying to enforce.

 

Clearly you have to make you're own decision here as it's your risk and I'm not a lawyer or other legally bound professional advisor.

 

Account No: XXXXXXXXX

Debt Counselling

Despite my previous telephone calls and correspondence requiring you to stop doing so, you insist on sending to my door “debt counsellors”. Moreover, you are applying charges to my account for these unwelcome and unwanted visits to, and on, my property.

In order to be charged for goods and services by a third party a party must enter into a CONTRACT with that third party.

I have not entered into a contract, implied or otherwise, to receive from you debt counselling services. Indeed, I have made it plain that I do not wish to receive such services. Whilst you may offer debt counselling services, I am not obliged to receive them and reserve my right to refuse such services, and I do.

You may contend that, as part of your ‘arrears’ or other such policy, I am to receive debt counselling services from you at my cost. Your internal policies, however, are for you and cannot be imposed on me. Even if you further contend that there are clauses in the contract which permit these activities on your account and my cost, you are not the party to which I originally contracted and therefore I could not have been made aware at the time of signing my contract of any such underlying policy. Your policies are therefore unenforceable.

 

Your continued instance that I receive debt counselling services charged to me at [a cost] per visit despite my non-consent is breach of contract and I hold you in such breach.

You have 14 days from receipt of this letter [sEND RECORDED DELIVERY!!!] in which to write to me that you have withdrawn your offer of debt counselling services and I will be harassed no further from visits by debt counsellors (or any other advisor sent or sponsored by you) and confirming to me that all charges for debt counselling services have been reversed, together with a statement of account showing this.

[This last bit is probably wishing on a star, and you'll need professional opinion to use it!]

 

If you do not reply within 14 days or a debt counsellor visits my premises following your receipt of this letter, for which I have record, I will hold you in breach of the mortgage contract and such contract will be unenforceable by you.

[Trudy B]

Hi Montoonie1

 

Wow - best i see if i can dig out the contract so i can check!

 

And yes, this mortgage accoutn has been passed from pillar to post! Now on third "mortgage company" in just over 2 years!

 

Thanks again!

 

T