Abbey SPO - want to set it aside

[tifo]

yes, the report gives a lot of statistical info

 

2009 here http://www.financial-ombudsman.org.uk/publications/ar09/ar09.pdf

 

and 2010 here http://www.financial-ombudsman.org.uk/publications/ar10/ar10.pdf

[tifo]

update ....

 

it got passed to an adjudicator who said:

 

1. Mortgage arrears charges are NOT WITHIN THEIR REMIT TO INVESTIGATE, so he'll look at the overall treatment the bank handed out to me.

2. He considers arrears charges to be fair because they're set at a market rate.

3. The charges were considered fair by the test case last year (same principle).

4. He can't look at the mortgage being sold through the shadow banking system.

5. The bank treated me fairly because it's my fault i went into arrears.

6. He won't look at the legal fees or the solicitor's actions.

7. The FSA fines and report on GMAC/Kensington etc had no impact on my complaint as those companies were fined for mistreating customers and not for charging an arrears fee, and my bank (major high street bank) has not had any fines imposed or been investigated.

 

I didn't agree with his findings and asked him to explain:

 

1. How he can call the charges fair without having investigated their actual cost (with a breakdown), especially if he says they're outside his remit.

2. Where it says they can't look at arrears charges (he pointed me to the FSA Handbook).

3. When did the test case look at mortgage account T's and C's or investigate their fees.

4. The solicitor was instructed by the bank as an agent and thus the bank is responsible for their actions.

5. Why does the bank sign its letters with "as administrator". And for whom?

 

And that if the charges are outside their remit then he cannot refer to them in his decision, not a single point, since its not something he can look at and i don't want his personal opinion on these charges. That would make his decision a bit harder to write up since it all consists of arrears charges!

 

I didn't get any answers from him. He's now left the fos and it will be allocated to another adjudicator.

 

Any advice for me and others taking arrears charges to the FOS and faced with this sort of response?

[caro]

Oh for goodness sake.

 

My gut feel is to say just take them to court, but I've flagged this up for the site team for ideas and opinions.

[tifo]

thanks caro ...

 

there's some good advice on this over on the SPML/London thread and many are confused at the FOS's assessment and manner of handling this.

[caro]

Yep I spotted after I posted that this had provoked some discussion there. Must confess - I'm confused by FOS too.

[tifo]

I'm confused by FOS too.

 

But what can i do about it?

 

Thankfully i didn't get a decision in writing though the adjudicator did call me many times to discuss his assessment. When i questioned everything he was saying he went back to look at it again and again, though he seemed to know what he was talking about by quoting various things. But thanks to this and other forums I'm not so naive on the matter as well!

 

His main statement was that the charges haven't been assessed and deemed unfair by a court so everything else doesn't apply, not the FSA, not UTCCRs, nothing.

 

Now i find out he's left so will have to wait for it to go to another adjudicator, who may or may not use the last one's assessment.

[caro]

Well if you get an assessment along the lines of what this guy has said, there are so many holes in it I would suggest an appeal, although there is still the option of court to claim charges.

[tifo]

there is still the option of court to claim charges.

 

I've been advised not to do that as the bank may be able to claim their legal fees, even if they concede and refund all charges, because it says so in the agreement. Unfair as it seems and possibly a clause to be assessed under UTCCR.

[tifo]

Well if you get an assessment along the lines of what this guy has said, there are so many holes in it I would suggest an appeal.

 

I'll have to wait and see. I waited many months for it to be allocated to an adjudicator and then assessed so may have to wait a while again, though of course its not my fault their adjudicator left.

[caro]

I've been advised not to do that as the bank may be able to claim their legal fees, even if they concede and refund all charges, because it says so in the agreement. Unfair as it seems and possibly a clause to be assessed under UTCCR.

 

There is a risk with any court action, although if it's under £5k it will probably in the small claims track when each side bears their own costs. If they want to concede and keep legal fees then just carry on to court and let the judge decide.

 

If it's over £5k there is certainly the risk of costs should you lose, but the supreme court judgment on bank charges, as you know, had nothing at all to do with mortgage charges. If you win you can claim your own costs back.

 

It may be worth checking out the CPUT regulations to see if there's anything in them that would help your case.

[tifo]

It may be worth checking out the CPUT regulations to see if there's anything in them that would help your case.

 

Like many others, mine is just a normal case of a consumer wanting penalty charges refunded. Why is this successful for some and so hard for me?

[tifo]

had a decision again from a second adjudicator (first one left) but it's much the same as before, except that the bank 'seems' to have provided a breakdown which shows their costs as £35+ a go (i'd like to see it!) and the charges are therefore fair.

 

no comment on FSA 12.4.1R, the FSA fines on some mortgage lenders' unfair treatment of customers and that the UTCCR reg 5 and 6 cannot be used on a price basis and that i agreed to the T's and C's.

 

i don't understand why mortgage arrears charges are being seen like personal current account overdraft charges and not like credit card default charges with which they bear a resemblance (being charged for not making an agreed monthly payment).

 

i don't know what the FOS are doing but it doesn't seem right.

[tifo]

should i now take this to the court or wait for an Ombudsman decision (which will probably not change much).

 

i can work out the charges from my statements but not the cumulative interest on each charge as there have been different interest rates over the years. The bank won't send me this info, not even through the FOS, and i am told to make a DSAR request with the bank. So i wouldn't know what amount to claim.

 

can anyone help me with a likely POC?

[Ell-enn]

Have you read this by Bankfodder? http://www.consumeractiongroup.co.uk/forum/showthread.php?296126-Hot-news-for-anyone-who-has-suffered-mortgage-arrears-charges-irresponsible-lending-or-other-unfair-lender-conduct

[tifo]

Have you read this by Bankfodder?

 

Yes, i read that, but the FOS say none of it applies to my complaint.

 

2 FOS adjudicators have said:

 

the charges are fair because:

 

1. the bank has provided a breakdown

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

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

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

5. i cannot use s.140 of CCA (unfair relationship)

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

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

8. they're set at a market rate

9. initially they said they do not investigate arrears mortgage charges

 

and much more, but the above are the main points.

 

so how are others getting their arrears charges back through the FOS?

[tifo]

any advice on this?

[caro]

I don't think there's any new advice or info I can think of.

 

Just a few questions though -

 

Who is the lender?

 

Is this a first or second mortgage?

 

When was it taken out?

 

Do you know if it's regulated?

[tifo]

it's Abbey/Santander ....

 

First charge mortgage on a house purchase in 1999 and thus might not be regulated, though the FOS say MCOB applies.

[caro]

it's Abbey/Santander ....

Is this why you think it's been securitised?

[tifo]

Is this why you think it's been securitised?

 

No, not because of the bank name, but because I know. They sign all their letters with "as administrator". And I know they use the Holmes brand to securitise .....

 

But apart from that, I believe i'm still entitled to receive a refund of arrears fees UNLESS the bank's true costs are £35+ (and i don't believe they are).

 

And the litigation referral and monitoring fees which the bank and solicitor have BOTH been applying.

[caro]

Must admit I haven't got my head around the whole securitisation issue. I'll see if I can find someone with more knowledge of this to take a look.

 

Regarding the charges, just because FOS have turned you down doesn't mean that this isn't something that you can't claim via the court.

 

What's happening at the moment regarding possession proceedings?

[tifo]

Must admit I haven't got my head around the whole securitisation issue. I'll see if I can find someone with more knowledge of this to take a look.

 

Regarding the charges, just because FOS have turned you down doesn't mean that this isn't something that you can't claim via the court.

 

What's happening at the moment regarding possession proceedings?

 

The securitisation issue's been well discussed and the general consensus is that it's legal in the UK and the bank do nothing wrong. It's been challenged in the 'Pender' case.

 

On charges, the FOS won't send me any info, not a list of charges or other fees, not the breakdown etc. They want me to do a DSAR request if i want any info.

 

I've asked the adjudicator to review his findings, especially on reg 5 and 6 of UTCCR. This is because i say that charges are not a subject matter of the contract or in return for any service by the bank but a penalty charge following a breach of contract (to pay the monthly mortgage payment) and that reg 6(2) does not exclude any assessment under reg 5 unless the contract is in PIL under reg 7(1) and/or the term was individually negotiated. Under reg 5(4) the bank would need to prove this. So he needs to assess the whole contract under PIL. This is how the test case of 2009 proceeded and why the banks changed their terms and conditions in 2008 for the PIL assessment.

 

But in the end the FOS might say the bank has provided a breakdown so the charges are fair.

 

Much of what else i asked to be looked at, such as the bank/solicitor making me pay arrears charges (whether fair or not) as part of the arrears balance and the litigation/monitoring fees, have not been looked at.

 

There's no proceedings at the moment as they're on hold while the complaint is at the FOS. When/if the bank issue these again, i would dispute the balance as being wrong because of arrears charges and litigation/monitoring fees and that the bank is to provide a breakdown, or to ask for the contract to be assessed under PIL and s.140A of CCA.

Edited May 15, 2011 by tifo

[caro]

Well I guess that's one benefit of the FOS taking their own sweet time.

[tifo]

Well I guess that's one benefit of the FOS taking their own sweet time.

 

As i see it, the bank owe me more in charges and fees than i owe them in arrears.

 

And they haven't charges any arrears charges or other fees while the case is at the FOS so if there's a true cost of £35+ per month (as they're saying), are they losing money by not charging me? Or are they being 'nice'?

 

They insist they're right and the FOS agrees with them so why haven't they continued charging until told otherwise?

[caro]

There were arguments that until the legality of bank charges was decided they shouldn't be added. It didn't carry much weight but maybe they're waiting for the final outcome of FOS. I have no idea what they have to do extra each month you're apparently in arrears though.