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

[orfoster]

LETTER BEFORE ACTION

Mortgage Account Number: XXXXXXXXXXXX

Complaint Reference: XXXXXXX

Dear Sirs,

I write in relation to the ongoing dispute between us.

 

I deem that these issues are so serious that I am notifying 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; I received specific and clear advice from my Halifax Mortgage Advisor in July 2008 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 obtained e-mail evidence of the advice provided by your advisor.

On telephoning Halifax in late 2012 I 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 and giving misleading information to a consumer is a serious breach of law. It is clear that you have acted 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, 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 a 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 neither received an 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.

 

In 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 below 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 made which will be withdrawn on taking court action, I deem 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.

[orfoster]

Now....just planning.....what would be their address for service?

Isn't their Head Office now The Mound, Edinburgh? That is the registered office for Lloyds Banking Group on Companies House? Anyone know where court documents would be served on Halifax BOS?

[orfoster]

AND if it is the address in Edinburgh....it won't let me do MCOL because postcode isn't in England and Wales!

[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.

[orfoster]

Hi,

 

Thanks, I've got their address for service as Halifax, Trinity Road, Halifax.

 

The other thing I was thinking was what are my losses and how do I show them, since all of this has kicked off I've always been aware that had I not thought I'd had that security I wouldn't have entered a fixed deal for 5 years at a higher interest rate. I specifically wanted to know that I could take a payment holiday and take an advance if I needed to, I wouldn't have decided to take the mortgage on fixed otherwise.

 

Is it reasonable then that I claim the difference in interest between the fixed rate and their standard variable?

 

How I work it out is a different story lol.

 

Cheers

 

O

[orfoster]

Have just discovered a number of my MCOB regs seem to only be in effect from 1 April 13.

 

I'm complaining about advice I received in July 2008. Can I still use MCOB?

[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.

[orfoster]

Yeah I'm lying! I just called the FCA.

Although the handbook has dates of 1/4/13 on you can view the handbook as it was at a particular date at the top of their page so can see which rules were in place at the time. I went back to July 2008 just to see what there was at the time I received my incorrect advice and so far they're in force (the rules i"m relying on anyway).

 

CitizenB what do you think of my claim of loss of interest above? I'm not sure how else I'd calculate losses in court otherwise.......

[citizenB]

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

[orfoster]

Hi CitizenB and others,

 

Thanks, the other issue here is that it will be joint claimants as my ex is still on the mortgage so she would have to be named on the claim which is fine as she is supportive of the case.

 

So in terms of working out losses, I am clear that I wouldn't have taken out a fixed rate mortgage at over 5% for 5 years had I not had those terms agreed by the adviser at the start, I just need to know if I should calculate the losses at the difference in interest rate each year over the past 5 years from their standard variable. this might be quite a high value though? In addition the adverse mortgage info registered on CRA for both of us should be removed and compensated for, I hear that could be £1,000 each?

 

I just need something to work with even if we settle for less in the end are there any guidelines?????

 

Cheers

 

O

[steampowered]

Hi,

 

It sounds like the real problem here is being unable to take your ex off a mortgage. Why has this happened - do they have a rule that you cannot do it if in arrears? And what did they say in their response to your complaint?

 

Calculating damages for wrongful adverse entries will depend on the circumstances. If you need a new mortgage and must borrow at a higher interest rate, that is the kind of thing you could use to come up with a sensible calculation. Otherwise it is very difficult. If you do not have some sensible way of coming up with a number I would simply leave it as a claim for unquantified claim for damages (capped at 10k for everything if you want to stay in small claims track).

 

Any offers to settle should be made in a separate letter headed 'without prejudice save as to costs'. This keeps you from having to show the court the settlement offer as it will be privileged. The LBA should be open correspondence. This might result in two separate letters being sent at the same time.

 

Can I also ask about this SAR you mention above. What information have they failed to provide and what reason did they give for not providing it?

[orfoster]

Hi,

 

Yes the issue is not being able to take the ex off the mortgage. What happened was in late 2012 I called them to take a payment holiday for the simple reason that I was a) having to look after my younger sister which would see my responsibilities go up and b) I knew that in May 13 I'd be able to pay back the holiday to bring the account up to date. But when I called them they told me I couldn't take a payment holiday because I have a 2nd mortgage but I'd specifically had advice before I took the mortgage out from Halifax saying "it doesn't matter as you have something different than a 2nd mortgage, its categorised as a shared ownership scheme, we would still allow you to take a payment holiday and take an advance" I had no reason to disbelieve them and was trying to make sure we were covered if we ever needed to use it, so I was annoyed when they told me I couldn't, what they did let me do was reduce my payments to ZERO for 3 months which is what I needed to do and I did as I said bring the account up to date in May BUT I have 3 months worth of late payment markers for the mortgage.

 

When I called to do a Transfer of Mortgage Ownership it declined because I'd had arrears on the account, well had Halifax adhered to their advice I'd have been fine because they told me I could have a payment holiday right at the start.

 

Now, Halifax have written to me today saying;

"We have made the decision not to offer payment holidays to customers who confirm that they are experiencing financial difficulties as we do not consider a payment holiday to be a suitable resolution to financial difficulty in light of the fact it will increase the outstanding mortgage debt and contractual monthly payment at the end of the payment holiday. I trust this clarifies the position"

 

Well, no it doesn't clarify it at all;

1. They never told me at any point that I couldn't have a payment holiday or that the terms had changed the terms and conditions to say that they don't give holidays for those who are in difficulty, the ones I have state that you can't have one if a)mortgage is less than 3 months old or b) you are in arrears. They did try and tell me that there was a FCA rule on it but turns out that there isn't any such rule.

2. I was not in any financial difficulty at the time of calling them to ask for the holiday.

 

Moving to the SAR, they say that I confirmed I was in difficulty when I called them well I've asked them to provide copies of the voice recordings and system notes etc etc which they say they can't search for because I'd need to know the persons ID of who I spoke to or their name which I don't, I'm not even sure exactly when I called them. BUT in MCOB 13.3.9 it states that for those in financial difficulty they must keep exactly these records, well either I was in difficulty and they have the records as required by MCOB or I wasn't in difficulty at the time in which case I could more understand it.

 

In terms of my losses, I guess I was looking at it the other way around as the past rather than the future.....

 

In July 2008 I made the decision to fix based on the advice of the advisor that we'd be able to make use of these terms so thought well then I'll fix with you because you've given me what we wanted at the time. Now I'm thinking well actually had I known I woudn't have had the same access to the terms I wouldn't have fixed my rate in order to have looked at moving elsewhere or going with a lender with perhaps different terms. Halifax weren't the cheapest at the time you see so I was going to work out the losses between the date I fixed to date of the difference between my fixed rate of interest and the standard variable which is a lot cheaper but then there is the adverse information going forward.

 

If that isn't the best way please let me know, also I may very well go for unliquidated damages up to £10k.

 

Please let me know if I've got anything wrong or if you don't agree with my case at all but I believe I have been treated unfairly. What I might do is post up the e-mail advice I received so you can see exactly what I based taking my mortgage on.

 

Cheers

 

O

[orfoster]

Here are the e-mail exchanges I am relying on, I've taken out all personal details but have left the first name of the mortgage advisor in so you can see who is speaking, very short e-mails but focus on page 3 and 2 really......

 

[ATTACH=CONFIG]45319[/ATTACH]

[orfoster]

Here is a website extract from the Halifax website taken on 11 July 2013 about who can take payment holidays and when. It doesn't say anywhere that you can't if you are in financial difficulties or that you are about to experience them infact it gives the opposite view in my opinion because it talks about a temporary change in circumstances!

 

The mortgage was pre 2011 but they're suggesting that now they don't give it to those in difficulty and my old terms just say anyone with a subsequent 2nd mortgage but the above post covers that issue.

 

[ATTACH=CONFIG]45320[/ATTACH]

[orfoster]

This is one of their final responses, the most that they're relying on.

 

I've attached it here rather than adding another post. Please let me know what you think.

 

[ATTACH=CONFIG]45345[/ATTACH]

Edited July 24, 2013 by orfoster

[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".

[orfoster]

Hello,

 

I've reposted the final response above. They make reference in this letter to FSA rules on payment holidays etc well firstly I wasn't in difficulty at the time of enquiring and secondly my extract from their website gives a different view AND I was never ever told they wouldn't offer me one.

 

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

 

Exactly, I literally took the decision at the age of 21 to take the mortgage on a fixed rate because of those e-mails and I thought I was doing the right thing to check everything out, its made my blood boil that they can just shrug it off and offer £100!

 

A complaint is in with the ICO about the fact that they've failed to disclose the documents but its only been in for about 2 weeks, it takes them 4 weeks to allocate it apparently.

[orfoster]

Ok I sent a copy of the e-mail exchanges you've seen above only on 8 July because this was when I managed to get them this was their response after seeing them, note it was sent less than 24 hours after I e-mailed it to their CEO, they refer to 29 April letter which I think is the one I've already posted.....

 

What do you think now?

 

[ATTACH=CONFIG]45356[/ATTACH]

[orfoster]

RE: SAR

 

I'm probably about to add too much for people to read but here are my issues about my Subject Access Request including original request and other two letters. I haven't ever received a response to my further requests, they have just totally ignored me.

 

[ATTACH=CONFIG]45373[/ATTACH]

[ATTACH=CONFIG]45374[/ATTACH]

[ATTACH=CONFIG]45375[/ATTACH]

[orfoster]

While LBA is in do I make a claim to FOS for all this? I have little faith in the FOS to resolve the issue that's the only thing.

 

And what am I claiming? I guess I've been mis-sold my mortgage?

[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.

[orfoster]

OK I'll get on it now there isn't any harm while the LBA is going through anyway.