Acenden capstone spml pml lmc sppl

[peterjm]

If possible I'd try and verify what they've sent you recently isn't an actual mistake which it has unbelievably taken them 2 years to discover,how do you know their figures are correct now,can you arrive at a correct figure on what they say?

I'd send them a sar to try and establish exactly what has and is going on.

You have the option to take this to the fos as detailed in the link posted by suetonius above ,so you may not have to pay at all,there are precedents to this effect which could well apply to your situation but the road you go is obviously your choice.

First of all, many thanks for all the good advice - much appreciated and V useful.

 

I am getting really tired of these turkeys, and I think I will follow Suetonius' good advice, as a further re-read of the documentation gives me two options, one to pay the extra amount for the rest or the term, and two to pay the lump sum. The lump sum does not add up to what I allegedly owe them, but the inference from the letter is that paying the lump sum will clear the shortfall. This is incorrect, as after paying the lump sum I would still be liable for the increased payment.

 

I have good, written evidence that they have calculated incorrectly and if there's a spreadsheet out there that can calculate mortgage payments and interest (like the bank charges one?) then can you point me at it, as if I can work it out then surely 'professionals' can.

 

The thing that's worrying me is that this company has a DD on my bank account and can help themselves to any amount (provided they inform me first). If I cancel the DD then I will be in default, arrears and subject to their charges and the threat of reposession - which frankly scares me.

 

Thank you all for the moral support - I think I'm going to need it!

[Littledotty]

who is your mortgage with celtichedgewitch? Sppl,preferred,spml,lmc??

You can cancel your dd at anytime & set up a standing order.

[peterjm]

This is the American model can anyone here see any similarities?

 

1.Block insurance policy despite you and your own insurance company informing them you already have an insurance umpteen number of times,your account is then immediately in arrears with fees added?

2.Mysteriously lost payments putting your loan in default,exorbitant fees then added?

3.Bullied and threatened into paying lump sums as loan modifications in times of hardship do not exist.?

etc etc

Introduction to the Mortgage Servicing Fraud [problem]. 2003

This is a game of heads they win – tails you lose.

• These are not “predatory lenders.”

These companies do not loan money. They operate in the lending industry after-the-fact. They take on a function that a lender doesn’t want – the backroom functions of handling payments, escrow accounts, annual statements, dealing with borrowers, collections, etc. The perpetrators of the loan servicing [problem] acquire the servicing rights to loans that other companies have already made. (Loans that were deliberately constructed by predatory lenders are ideal for processing through servicers that specialize in aggressive collections or rapid foreclosure processing, but the loan servicing [problem] can be operated against any mortgage loan if the servicer acquires the rights from the lender.)

• These [problem]s are designed and deliberately operated.

These situations are not errors, mistakes or situations where a servicer’s managers or employees failed to do their job. Their systems are well-designed and state-of-the-art in terms of analytical technology that helps them choose and process their victims. These [problem]s generate enormous profits from a business that is difficult to run, people and litigation intensive and normally only marginally profitable. Many have failed and been acquired (Fairbanks bought several).

 

• You, the borrower, are not their customer. Lending companies and investors are their customers. As a borrower being “serviced” in the [problem], you are simply one of millions in an ever-growing pool of what the financial services industry deliberately labels as “sub-prime” borrowers waiting to be taken advantage of.

 

• They have almost unlimited legal resources. If you had the financial resources to have effective legal representation and the documentation to challenge them, they would turn their attention to easier targets. Of course, because most sub-prime borrowers are not well off and don’t have an attorney, you’re a likely target.

• They have leverage and information and will prey on your fears. The fear of possibly losing your home is the key that unlocks your bank account for them. They know almost everything about you financially and even from an employment and income basis. They are made aware of your inquiries into other lenders about refinancing even without a request for a payoff and that shopping may lead them to target you before you can get out of the loan you’re in.

 

• They are experts with millions of successful cases behind them. The loan servicing industry, including those who founded and are running the servicing [problem] companies, helped craft the “standard” loan documents in widespread use. They are written entirely for the protection of the lending industry, not the consumer. That situation allows them to manipulate their processes and procedures to push you into a position where they can take funds from you or ultimately take your home, often within the terms and conditions of the loan. Some do go beyond the terms or even break the law and aren’t stopped because the borrower does not actually understand the agreement they signed or the laws and regulations.

 

The path toward losing your home to this [problem] is actually quite simple.

 

1. The first phase is designed to fabricate the default, and typically begins with one, or a combination of ways to arm the servicer’s records with false data:

 

2.When the servicer decides to manipulate the date the payment is received in order to artificially create a late payment.

 

3.When the servicer applies part of the payment to something other than principal and interest and creates a partial late payment or deficiency.

 

4.When the servicer decides to “force place” an insurance policy on the property by claiming thehomeowner has not provided proof of insurance.

When the servicer pays your property taxes late, then adds their late penalty to your account without your knowledge.

 

Any or all of those processes result in at least one month of the account being past due and a negative note is made in the credit report (which effectively prevents the borrower from refinancing). It also helps the Private Mortgage Insurance carrier keep the policy in effect on the loan, which is why these insurance companies have investments in servicing companies in the first place – a late payment or two allows the lender to keep the insurance in force.

 

If the borrower has anything more than about 10-15% equity in the property, it is to the servicer’s advantage at this point to not aggressively attempt to collect. In fact, if the borrower makes contact, the servicer will engage in delay tactics to avoid resolving the problem in time to prevent default. If the equity position is considerably less than 10%, the servicer does not have as much leverage, nor is the opportunity as great and they will typically be more aggressive in collection efforts and more willing to keep the loan in force.

In the case of force-placed insurance, it is to the servicer’s advantage to ignore the borrower and any proof of insurance as long as possible; again, to keep the borrower’s credit status in a negative light and to maintain their relationship with the insurer they contract with. These policies are extremely profitable because they provide absolutely no coverage for the homeowner. They protect ONLY the value of the loan, including interest if the property is destroyed.

 

If the servicer has analyzed the opportunity and marked the property for default and recovery, the next payment received will be rejected as being insufficient. If it is accepted, the application of the funds leaves the loan sixty days past due. Typically, the [problem] now moves toward formal legal notice of acceleration in order to coerce the borrower into signing a highly-profitable forbearance agreement to somehow “save the home.” The servicer rolls thousands of dollars in penalties and an incomprehensible combination of legitimate and illegitimate fees into the agreement and the homeowner is left with no choice but to sign it or lose their home. The amount demanded will be calculated to take as much of the homeowner’s equity as possible.

If the homeowner decides to sell the property to get out of the situation and take their equity, they will find the payoff amount (which in the last month of the [problem] will take longer to get than the amount of time left before foreclosure) strips them of their equity. That combined with their artificially-damaged credit rating helps keep the victim a victim.

If the borrower cannot pay the amounts demanded in the forbearance agreement, the servicer will have one of their network of specialized attorney firms foreclose and the property will be sold, typically at a county auction or through their real-estate network.

 

If the borrower signs the agreement, they will soon be recycled through the process with yet more late payments and fees. But in the terms of the forbearance agreement, they may find they have signed away any legal protections they may have already had, including the right to sue the servicer for fraud or misrepresentation.

 

If the homeowner cannot find or afford competent legal representation to stop this fraud, they lose their equity and in most cases, their home. MSFraud.org

Edited May 16, 2011 by peterjm

[peterjm]

It now appears that the lenders/administrators are using the Supreme Court decision in favour of the banks on bank charges to apply the same criteria to the borrowers case for the application of unfair arrears charges

 

As posted by tifo the fos are adopting this criteria as are the Courts

So are we the borrower truly sunk here?

 

The point being if you make a claim through the courts and lose you will be subject to the high costs of the lender so this appears a very dangerous course.

 

FSA decisions ie fines as indicated by tifo are not precedental to other lenders but apply only to that particular lender

Originally posted by bankfodder on the old spml thread.

 

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.

 

Originally posted by tifo on the same thread:

 

Re: Spml/london Mortgage Company

 

Originally Posted by BankFodder

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.

Edited May 18, 2011 by peterjm

[tifo]

with a recent review, 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) because that's for the court

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 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?

[peterjm]

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.

What a stitch up,its almost a licence for Acenden to print money as it appears theyre immune from FSA punishment anyway.

with a recent review, 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) because that's for the court

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 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?

[tifo]

It now appears that the lenders/administrators are using the Supreme Court decision in favour of the banks on bank charges to apply the same criteria to the borrowers case for the application of unfair arrears charges

 

As posted by tifo the fos are adopting this criteria as are the Courts

So are we the borrower truly sunk here?

 

the FOS first said they don't investigate arrears charges as they're a market rate and applied the Supreme Court decision.

 

with a review, they've looked at arrears charges as part of an overall 'fairness' assessment and say these cannot be challenged under reg 5(1) of UTCCR as reg 6(2) precludes an assessment under price. I've argued that to use this preclusion the contract first needs to be assessed for plain english (PIL), which they haven't done.

 

but the spoiler for all my arguments is that the FOS say the bank has provided a breakdown of each of the different amounts they've been charging me, i.e. for £20, £25 or £30, £35 etc. How the bank has done this i don't know but they won't send me this breakdown.

 

the FOS say the solicitor's actions, such making me pay arrears and legal fees as part of the arrears balance to be cleared in proceedings or applying their own unfair charges, cannot be looked at as it's a matter for their regulator. But i say they should look into it as the solicitors were/are acting as agents of the bank, who is ultimately responsible for their actions.

 

and on securitisaton the FOS say it's something they can't look at as it's up to the bank how they administer the account and a commercial judgement.

[peterjm]

So the fos are both useless and toothless and what happened to transparency and consumer protection.

Why the hell didn't the OFT refer the Supreme Court which appears a purely political (labour inspired) decision to the European Court when it affects so many and knocks on to those now with exorbitant "write your own cheque" arrears fees.

Heres what a QC had to say about the unbelievably extraordinary decision which overturned those made in the next 2 highest courts.

Google Anthony Scrivener QC bank charges for more info.

[peterjm]

Bankfodder and the site team can you offer some guidance here theres the real possibility that by urging people to take the court route they will get hammered by legal costs if or when the courts apply the Supreme Court judgement on bank charges.

[Crapstone]

As I've said time and time again YOU have to find the faults and it's not just down to the charges or the amounts, it's the way your account has been operated by the lender. It's not a case of glancing over a statement or moaning about a charge for a missed payment as you have to look at the whole history as to why you had the arrears in the first place. Wrong interest rates, false charges, lost payments, lost documents and wrong payments deducted. Just one lot of block insurance taken was enough to send me into a spiral with charges added and it went on month after month when they refused to acknowledge my own insurance. So you get their fees, fees from your bank if you go overdrawn and then another fee when they finally acknowledge you do have your own insurance. So what do they do? They refund the money against the account but not the fees showing or the interest you are still paying.

 

The CASH they have received over the term is more than you would have paid ordinarily, so you are actually ahead in payment. If my experience is anything to go by everyone should be able to find something that Capstone screwed up on. It just takes time and a lot of digging.

 

BF has his views, and probably the money to throw at it, but when you are in that situation and all you can do is grasp at every straw then go for the FOS and not just on the charges. If they refuse to look at it then amend the info and do it all again until they will take it seriously and accept that the charges are not the market rate and the treatment of their account holders is unfair in the whole relationship and the lender/ borrower trust has broken down.

[peterjm]

Good to see you back crapstone,what people are experiencing it seems is not the incorrect or unfair manner in which arrears charges are applied which is something the fos will look at,its the fact that they will not assess the amount of the fee as unfair.So if a payment is missed and an arrears fee added the fos will not deem that fee if it was lets say the old £85 arrears management fee as unfair and not the true cost of administering an account in arrears as there has been no FSA fine against Acenden/the Lenders and even though all the other firms charged a lesser fee when they were penalised this applies solely to them and no one else.

They are also using the bank charges judgement as precedental as are the courts to squash the unfair contract terms argument.

 

This site is promoting I believe very possibly court action by consumers to recover fees etc,this would be ok for fees misapplied but on the quantification of the fee for administering an account in arrears the borrower will be onto a hiding and liable to the lenders no doubt outrageous costs.

This course of action could be suicidal and has to be properly determined in the light of the bank charges judgement and the courts adoption of this judgement.

This site appears to have sent thousands of emails urging borrowers to claim through the courts ,this could well provide a windfall for the lenders legal teams.

This has only just come to light through certain cases but makes sense on close examination.

[slgsue]

Hi all, I have had notification from FOS as to what their decision was and both parties now have 3 weeks to gather any additional evidence or it will go in the queue to be reviewed by an Ombudsman.

 

The decision was that my complaint was partially upheld as he felt some fees were fair and he didnt agree that the legal fees should be refunded, ultimately he decided that Acenden should pay me £925. They have known this for at least 6 weeks now but have not responded.

 

In that time, I have just discovered another fee of £115 has been added due to their incompetance in setting up my internet account so I can pay online and avoid additional charges being added for paying over the phone!!! I only found out when questioning how my arrears affect my credit file, and the person I spoke to said that he will arrange to have the charge removed as he could see it was added unfairly and should not have been added, surprise, surprise!!!!

 

Any ideas of what to do now? Need as much help as poss please!

[bustthematrix]

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?

Edited May 19, 2011 by bustthematrix

[bustthematrix]

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.

[bustthematrix]

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.

[tifo]

Hi Tifo

I'd appreciate further clarification from you.

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?

 

The lender refused any refund or to discuss the matter further following their final response.

 

The comments are from 2 FOS adjudicators. The first person left soon after their decision (which I did not get a copy of) so a second person reviewed the file and made their own recommendations. It's going to the ombudsman now but do they ever change an adjudicator's decision? I've not had any changed ever and i got many unreasonable decisions on credit card reclaims and actually lost my full refunds (and interest) as a result, even though all were paid in full settled accounts.

 

To answer your questions:

 

1. The FOS won't tell me what the bank's breakdown of costs consist of. In fact, they won't send me any info and ask me to do a DSAR. I've argued that the bank not only applies the arrears charge, they also charge cumulative interest on this and all previous charges (if not paid), thus making much more than their actual costs could ever be.

 

2. I agree with you, but this is what the FOS say.

 

3. I agree with you, but this is what the FOS say.

 

4. I've queried why reg 5(1) of UTCCR does not apply but the FOS's comment is taken from the Supreme Court ruling on personal overdrafts or they may consider the arrears charges to be a subject matter and consideration for a service to which I agreed under the T's and C's. I don't know why they say this. I've replied that in order to preclude an assessment under reg 6(2) the contract must be in plain english as per reg 7(1). Whether they'll now assess the contract i don't know, but i won't hold my breath for it.

 

5. I can use s.140A of CCA because my mortgage is not regulated as it's from before 2004 and is a 'credit agreement', i.e. a secured loan. Or so i've read on here.

 

6. I agree with you, but this is what the FOS say.

 

7. I agree with you, but this is what the FOS say.

 

8. I agree with you, but this is what the FOS say.

 

9. No comment.

 

Others may have received refunds on arrears charges (even through the FOS) but this is how my case has gone.

[peterjm]

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

So unless your lender is fined youre stuffed 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.

[jasperpad]

Hi all

 

I have just got my latest mortgage statement from ... guess who? Acenden/SPML etc.

 

they have charged me two lots of costs for their solictors fees one of around £650 and another for £550 for them taking me to court for a possession (which they completely lost ... suspended possession anyway), and the second for their solictors having to prepare and send a replyto my demand for a them to explain why they would not discuss any form of other payment system such as later payment dates etc.

 

Can they do this? and am I able to contest these costs as they have now been added to my mortgage!

 

I am spitting nails!

[peterjm]

Jasper own opinion,first one yes as technically they won in that they were granted a sus repo.Second one extremely arguable,why did they have to instruct a solicitor firstly,can't they answer theyre the ones paid to administrate the mortgage and the reply fee seems excessive,worthy of an fos complaint i think.

By the way what was the reply?

[Crapstone]

Good to see you back crapstone,what people are experiencing it seems is not the incorrect or unfair manner in which arrears charges are applied which is something the fos will look at,its the fact that they will not assess the amount of the fee as unfair.So if a payment is missed and an arrears fee added the fos will not deem that fee if it was lets say the old £85 arrears management fee as unfair and not the true cost of administering an account in arrears as there has been no FSA fine against Acenden/the Lenders and even though all the other firms charged a lesser fee when they were penalised this applies solely to them and no one else.

They are also using the bank charges judgement as precedental as are the courts to squash the unfair contract terms argument.

 

This site is promoting I believe very possibly court action by consumers to recover fees etc,this would be ok for fees misapplied but on the quantification of the fee for administering an account in arrears the borrower will be onto a hiding and liable to the lenders no doubt outrageous costs.

This course of action could be suicidal and has to be properly determined in the light of the bank charges judgement and the courts adoption of this judgement.

This site appears to have sent thousands of emails urging borrowers to claim through the courts ,this could well provide a windfall for the lenders legal teams.

This has only just come to light through certain cases but makes sense on close examination.

 

I see that and they have to ask for a full breakdown of the costs. They will resist that but you have to keep on asking and give comparisons. Those fees aren't probably what was agreed on the original documents and have risen significantly and not in line with inflation or costs. Forget the court rulings, the Ombudsmen can make their own judgment on what is fair in each case. Nothing has really changed since I went through it and the FOS gave me the same talk that they couldn't rule on the charges being fair or not. At least through persisting with the FOS you have nothing to lose.

 

I'm liking the add-on that this site is promoting people to take the bait and go head first into court action without a clue. What is Marc thinking of? His bank balance or reputation? My money, my choice should be the words.

[bustthematrix]

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

[slgsue]

Any ideas on how to deal with a complaint that the FOS has partially upheld?

[bustthematrix]

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.

[jasperpad]

Hi Peterjm

 

the reply was for them to explain why they couldn't or wouldn't say why they would not discuss any other way to make mortgage payments. the document the solicitors sent was almost as big as "War and Peace".

 

As this was part of the same hearing from November then I think they are really trying it on especially with the excessive fees.

 

I am just waiting until the end of the month and am going to send a SAR letter and then go for the jugular.

 

thanks all for your thoughts

[tifo]

they have charged me two lots of costs for their solictors fees one of around £650 and another for £550 for them taking me to court for a possession.

 

I got charged around £1500 per possession proceeding and this was capitalised onto the mortgage balance.

 

They haven't capitalised any legal fees from the last possession proceedings and i guess the bank and sols want to charge for work being done as part of my FOS complaint. Otherwise it's been 3 years since the last order ....