HBOS Mortgage - MCOB claim?? Incorrect advice? Fairness?

[citizenB]

Even though you have asked for specific information, a DSAR is for ALL information - so they should send everything irrespective of any specifics you have mentioned.

 

As for their Final response. You can still ask them to revisit their decision, based on information that has come into your possession.

 

If this were me, I would be writing to their Head Office. Advise that whilst you have had a Final Response, you are questioning that as you have discovered information that you would like taken into account. Failing which, you will escalate your complaint to the regulatory authorities. Use any MCOB references that are relevant.

[citizenB]

I will have a look at MCOB and see if I can find the references for you.. but it wont be until tomorrow, ok ?

 

[citizenB]

Due to amendments in our internal policies regarding payment holidays, we no longer offer payment holidays to customers who tell us they are experiencing financial difficulties. This is in line with FSA guidelines

 

 

Did they point to any specific reference in the guidelines and.. I wonder why they are still referring to this as FSA, when it is now the FCA ?

[citizenB]

http://www.fca.org.uk/news/speeches/100-days-of-the-fca

 

They took over some time beginning of April 2013

[citizenB]

In you DSAR, have you asked for a recording/transcript of the call made by you on May 1st ?

[citizenB]

Ok..I think you need to contact the FCA help desk and ask if they can clarify for you.

 

But this is what I have managed to find. You need to scroll a fair way down the page !

 

http://fshandbook.info/FS/html/FCA/MCOB/5/6

 

 

MCOB 5.6.94 to

 

MCOB 5.6.96

 

Under the sub-heading 'Payment holidays', the illustration must include details of circumstances in which the customer can take payment holidays and a brief statement of any conditions that apply.

 

I would say if this was something you had confirmed before entering into the Mortgage and you were advised that a Payment holiday would be allowed then they should have identified this within the contract.

 

If there were subsequently changes to any part of that contract, then you should have been advised.

 

 

I was unable to find any reference to payment holidays whilst in financial difficulties so it might be worth asking the lender / bank to identify the changes they refer to.

 

The relevant point here is that you were NOT in arrears at the time of requesting the Payment holiday. So their statement is IMHO, misleading.

[citizenB]

Do you recommend fos or Court? In your opinion?

 

 

I would wait until I had as much information as I could possibly gather and then make a decision.

 

Court is quick - but the burden of proof is on you. Although if you chuck into the mixer that you have been "Treated Unfairly", the bank then has to prove they have treated you fairly. In fact, if you need to contact them again, I should start popping that term in wherever you can

 

Fos - take a long time .. a very long time and their understanding of a complaint in order to obtain a fair crack is not always assured !

[citizenB]

orforster, I recent included the following statement in a letter to a bank ..

 

 

We understand that the FSA (now the FCA) now demands that all of your calls in relation to any“Mortgage”

arrears must be recorded, so we would like to request a recording as well as a transcript of all recent calls that have been made to any of our numbers, even if these only discuss the “security checks”.

 

 

 

 

I don't think there is any mention of how long they have to keep these.. but I would suspect at least in keeping with other retention policy. Try it and see if it works..

 

 

you could also add that as they are also obliged to update their communication log (kind of a diary of events) then the information they are demanding from YOU, should be on their records .. eg Staff ID etc.

[citizenB]

Excellent - please keep us updated on your progress

[citizenB]

Sounds good to me

[citizenB]

LETTER BEFORE ACTION

Mortgage Account Number: XXXXXXXXXXXX

Complaint Reference: XXXXXXX

Dear Sirs,

 

With reference to the above complaint.

 

I believe these issues are so serious that I am advising you that if I do not receive a satisfactory response to my complaint within 14 days I will commence court proceedings without further notice. It is therefore important that you bring this letter to the attention of the relevant department as soon as possible. I write in compliance with the Practice Direction on Pre-Action Conduct.

 

I have suffered a serious detriment due to the unfair treatment I have received from Halifax and I am shocked that you would treat me in this way as a consumer.

 

My complaint

 

You will be aware of my full complaint as referenced above, however, in summary; In July 2008, I received specific and clear advice from my Halifax Mortgage Advisor, by e-mail and by telephone that despite my mortgage being part of a “Shared Ownership Scheme” I would be able to take a payment holiday if required. I have e-mail evidence of the advice provided by your advisor.

 

I telephoned Halifax in late 2012 and enquired about taking a Payment Holiday due to personal reasons. I was advised that due to the type of mortgage I had I would not be able to take a Payment Holiday.

 

Copies of the aforementioned e-mails have been supplied with my letter dated 8 July 2013 sent via your Chief Executive Officer by e-mail and by recorded delivery to your Customer Services Department, you have therefore had sufficient opportunity to respond.

 

In accordance with the Consumer Protection from Unfair Trading Regulations 2008, unfair commercial trading practices, giving misleading information to a consumer is a serious breach of law. It is clear that you have treated me unfairly in giving me misleading advice which contained false information which caused me to take a financial decision that I would not have otherwise taken.

 

Further to the above you have breached the Mortgage Conduct of Business Regulations (MCOB) set down by the Financial Conduct Authority (previously FSA), MCOB 2.2.6 outlines that you should communicate with me in a way that is fair, clear and not misleading. This is clearly not how I was advised. MCOB 4 sets out further standards about providing advice.

 

Halifax were aware of the type of mortgage in this case, in accordance with MCOB 5.6.96 you are required to advise me of the circumstances in which I should take a payment holiday, had payment holidays not been applicable in my circumstances this should have been made clear and it was not.

 

At no time since July 2008 have I been advised that my entitlements have changed.

 

Halifax has failed to disclose requested information in accordance with requests made under the Data Protection Act 1998, letters sent to Halifax by recorded delivery dated 21 June 2013, 4 July 2013, 11 July 2013 and 13 July 2013 have received neither acknowledgement or a response. This matter has been brought to the attention of the Information Commissioner for investigation in addition to the fact that the Subject Access Request was supplied out of time. It is important to note that a complaint sent via the Chief Executive Officer received a response in under 24 hours, you are therefore in breach of the Data Protection Act 1998.

 

Similarly in accordance with MCOB 13.3.9 given that Halifax allege that I was suffering financial hardship at the time of requesting a payment holiday, records must accordingly be kept.

 

In accordance with the Practice Direction on Pre-Action Conduct I would request that you provide me with copies of the following documents:

1. System notes of the mortgage advisor at the time of carrying out my mortgage application in 2008.

2. Copy of screenshots from my Transfer of Mortgage Ownership Application with XXXXXX on 1 May 2013.

3. System notes and assessments carried out by the Payment Assistance Line in late 2012 (12 November 2012).

4. Copy of voice recording call from 12 November 2012 to the Payment Assistance Line.

5. Full copies of call handler notes relating to the above account.

 

I intend to rely on;

1. The above information which is requested in accordance with this practice direction.

2. E-mail exchanges in July 2008 supplied in my letter dated 8 July 2013.

3. Voice recording call with Catherine Emmett dated 1 May 2013.

4. Previous correspondence exchanged in relation to this matter.

5. Screenshots of Halifax Website (When in financial difficulties) taken on 11 July 2013.

6. Mortgage Offer letter supplied in 2008 in formally offering this mortgage.

7. Terms and Conditions in place at the time of my mortgage application.

 

Outcome sought

I have based the following on the fact that I should not have been placed in the position I was and therefore require the following;

1. That all adverse arrears information is removed from my credit file.

2. A Transfer of Ownership application is approved and underwritten (the other party is in agreement) without fee.

3. An offer of compensation is made no less than £1500 due to the stress and damage this incorrect advice has caused.

 

I must make you aware that the settlement figure above is an offer which will be withdrawn on taking court action, I believe that my losses and compensation level for damages is substantially higher than the offer given above, I will also seek to recover reasonable costs against you.

 

In closing, I would draw your attention to section II (4) of the Practice Direction which gives the courts the power to impose sanctions on the parties if they fail to comply with the direction including failing to respond to this letter before claim.

 

I require that you acknowledge receipt of this letter within 14 days and where possible provide a full response within 28 days.

 

Should I not receive a response to my letter within this time frame, then I anticipate that court action will be commenced with no further reference to you.

 

I have made some very minor amendments. But other than that, you tell it like it is and what you require to resolve things. So go for it

[citizenB]

Court documents would be served at their Head/Registered office.

[citizenB]

I thought BCOBs could be used for anything after 2009 ?

 

Check out the links in my signature, I am sure it is mentioned in there.

[citizenB]

I think others would have to guide you regarding calculating losses, I will hit the button for you

[citizenB]

This is one of their final responses, will post up other correspondence later on.

 

[ATTACH=CONFIG]45341[/ATTACH]

 

 

You are going to have to rename your file and repost it. Because you have one of our "linked" words (Halifax) in the title it is corrupting the attachment

 

Not too much of a problem, because the link has carried over forward to this post and can be viewed.

Edited July 24, 2013 by citizenB

[citizenB]

Well the email conversation made it quite clear that you would be able to take the Payment Holidays, etc. I cant see why they are now trying to deny this ?

[citizenB]

Hmm, £100.00 for the distress caused ? The fact that seriously flawed advice was given that caused you to take a mortgage with them rather than with someone else is more than just "distressful".

[citizenB]

Ok.. If you take court action then the FOS will not look at your complaint either whilst the claim is taking place or afterwards.

 

If you go to the FOS and you don't like their decision, then you still have the court option. But you do need to get your complaint into the Ombudsman within 6 months of the Final response from the company.

 

I imagine your complaint would need to cover the incorrect advice that led you to make a decision that was detrimental to you. They have treated you unfairly. So yes, I guess mis selling would come into it.

 

Any complaints you have regarding the non compliance of your SAR should go separately to the Information Commissioner. Although of course you can refer to this in any complaint you make to the Ombudsman.

[citizenB]

This is an adjudicator decision - you have the option to request escalation to the Ombudsman. IMHO, this is what I would do.

 

If you believe the adjudicator has not taken certain information into account, you should restate this.

 

It took me nearly 3 years for a satisfactory decision from the FOS, but persistence nearly always pays off.

 

 

If it appears that information has been provided to the FOS that was missing from your SAR, then you can ask the bank to provide that to you. Advise that it has come to your attention that they have this information and you want to know on what grounds they suppressed it from your legitimate DPA request.

[citizenB]

If you obtain a positive decision from the ICO that would be very good indeed. Especially if you later have to make a claim via the county court.

[citizenB]

http://www.consumeractiongroup.co.uk/forum/showthread.php?208966-Me-and-Them-SAR-non-compliance-claim.-**SUCCESS**&highlight=SUCCESS

 

orforster, did you read the thread linked above ?

 

It was a claim for non compliance of DSAR. FUAFB won her claim. It was issued as a (part 7) money claim.

 

I think FUAFB was incredibly lucky with the 2 x Judges who heard the Claim/SJ hearings and I believe it was prior to people issuing claims for copies of agreements and other stuff required for litigation. But.. it might give you some ideas..

[citizenB]

I wonder if you might need a waiver from the other party to the contract, Orforster ? I will ask for you.