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

[orfoster]

Hello everyone,

 

In late 2012 I got into temporary financial difficulties (I knew this was going to be for 1-2 months).

 

When I took out my mortgage in 2008 I was told that one of the benefits was that I could take a payment holiday if I did suffer any difficulty because my LTV was less than 75%, now the rest of the purchase was made up by an Open Market Homebuy (which halifax took as a deposit).

 

I HAVE E-MAIL EVIDENCE TO SUPPORT THAT I WAS ADVISED AT THE TIME I WOULD BE ABLE TO TAKE A PAYMENT HOLIDAY! (actually in several e-mails)

 

On calling them in December 2012 they told me that I wasn't eligible for the "Payment Holiday" because I had a 2nd mortgage on the house, I did query this because I know damn well I checked this at the time of taking out my mortgage because I like to read everything, especially when it comes to things like this.

 

Can this like BCOB be claimed as incorrect advice. I now understand their position that I couldn't have had one but I was told explicitly in an e-mail from their mortgage advisor I'd be able to have a payment holiday if I needed one.

 

The reason I'm complaining is that I want to have my ex taken off the mortgage obviously I can't do that if I have had arrears, had they upheld their agreement with me I wouldn't be in the situation where I now can't have my ex taken off because I've had arrears.

 

(arrears all paid off within 3 months).

 

Thanks in advance for anyone who can help.

[BankFodder]

Yes, I think that if you have received specific advice which you rely on when making a decision to buy their mortgage product then it seems like unfair treatment for them to go against it

[orfoster]

Thanks BF.

 

I've currently got a DSAR in but I've actually only asked for specific information when I may need full access to my account to show any manual intervention can I amend my SAR before they respond?

 

Because on 1 May when I called them to make an application to have my ex taken off, even then the woman I spoke to said "do you have a 2nd mortgage?" I responded yes, she said "oh no you don't do you we class that differently" which just reinforces my point that this was what I was told when I took out the mortgage.

 

I have already complained but they've sent final response saying they don't agree with me - I have only just been through my email archives and found the e-mail (haven't sent this to them yet.

 

I'll summarise their responses.....what will be my arguments?

[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.

[orfoster]

Ok,

I wrote to the CEO by e-mail yesterday and received a response today (I included the e-mails which are absolutely supportive of my position).

 

Their response is that they have already responded on 29 April irrespective of the evidence I've submitted.

 

I just want to check I'm sane.....

 

So I called them and said I'd like a payment holiday, the reason being that in December there was a gap in contracts and I was worried, they approved it but it was at this point they told me I couldn't have a payment holiday as such, I questioned it then because the e-mails I have clear this up in my view, I actually checked this before I took the mortgage out would you believe! Now its important I was not in any financial difficulty at that point.

 

They are saying that

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

Firstly I wasn't in difficulties at the time and secondly this is not clear anywhere in their T's and C's nor have they ever written to me to tell me people who are in difficulty can't get a payment holiday.

 

This is one of the reasons but they are hanging up on the fact that I have a 2nd mortgage but I genuinely thought as below I'd been advised differently.

 

In July 2008 I have copies of e-mails between me and my mortgage advisor a week before I went ahead with the mortgage, I wont share the full details because a lot is irrelevant but the main bit;

 

Me to advisor....

Can I just check that this is classed differently than a "2nd mortgage" I understood that because this was a shared ownership scheme it was different, for example it covers the deposit element for purposes of LTV doesn't it?

 

Advisors reply....

I have checked and you are correct that we class it differently than a 2nd mortgage which is why should this proceed you will be able to take advances and also things like payment holidays as we discussed where others who have taken out subsequent 2nd mortgage would not

 

Me to advisors....

Thanks for clarifying the questions below, someone said we should check just incase we need to take a payment holiday in the future at least we would be covered

 

Is it just me or am I seriously missing something here? They are saying that my shared ownership scheme is a 2nd mortgage well the e-mails above show I was advised it wasn't AND I had a telephone conversation with someone on the 1st May who also said it was different.

 

Could someone help me with the relevant MCOB references, I've tried searching for them but the FSA site isn't great - I will then submit a complaint to FOS.......although to be honest I do just want to issue a claim in the courts!

 

Cheers

 

O

[orfoster]

Anyone?

[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 ?

[orfoster]

No reference, when did it become FCA the letter they refer me to is April.

 

No that's great thanks. I'm stressing out about it because I thought I'd covered myself by confirming it all.

 

Cheers

[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.

[orfoster]

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

 

Yes and I have a copy of the call from 1 May and typed out what it said in my recent letter to them, both that and the e-mails I have hasn't done anything.

 

Re the last post....thanks so much for that. I did have a read of the Irresponsible Lending Code last night (got to about 30 pages in) and did find some interesting stuff to support my case.

 

I will contact the helpdesk and also I will call them to ask for clarification of what exactly they are referring to, they'll probably not be able to tell me either.

 

Do you recommend FOS or Court? In your opinion?

[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 !

[orfoster]

Ok great.

In their latest letter they've told me that anything else I send will just be held on file.

 

So I've called FCA helpline just now, they don't have anything in their handbook or otherwise for anyone who isn't in arrears at the time of taking asking for a payment holiday (bit worrying he said they have nothing on payment holidays at all when you've found something in their handbook) but he said there hasn't been any guidance issued.

 

So....I called Halifax, because I sent my complaint by e-mail to the CEO I spoke to something swish Executive complaints team who couldn't give me a reference to a particular rule either. She just apologised I'd received incorrect advice and I could take it to FOS, I told her I was considering court action given the level of detriment I've now suffered and their failure to admit at all and she really wanted to steer me away from that. She then just simply relied on the fact its because I have the "shared ownership scheme deal" and I said firstly do you mean a 2nd mortgage and secondly that was clearly explained to me in 2008 when I took out the mortgage that I could take a holiday with the shared ownership, and also it is specific in my mortgage offer letter that I could take one, if I couldn't it should have been taken out!!

 

Anyway, she's updated the system with my points.......

[orfoster]

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 !

 

Hiya,

 

I'm gonna have to complain to the ICO because I also want copies of telephone calls when I actually phoned to speak to them about taking a payment holiday, they've told me unless I know the date and time of the call who I spoke to and their staff ID number they can't find the call lol (who on earth would know all that?!) They apparently don't store call handling notes on their mortgage customers account details. Smell a fish? Although I think I'm chasing a red herring because I'm trying to show that I wasn't in any difficulty at the time of phoning so their argument is rubbish anyway although I guess the FCA have clarified it above haven't they?

[orfoster]

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 !

 

Have been sticking that term treated unfairly in every single letter I've sent them

[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.

[orfoster]

Ohhh yes MCOB 13.3.9 and all of the details of the length of time these should be kept are in schedule 1 http://fshandbook.info/FS/html/FCA/MCOB/Sch/1#D1.

 

I guess if they are alleging I was in financial difficulties then 13.3.9 ought to apply!

 

Cheers

 

I'll do a letter to them today.

[citizenB]

Excellent - please keep us updated on your progress

[orfoster]

Letter went off yesterday. I have also reported them to the ICO for the following reasons; (oh ok the number tabs don't work for me on Safari or the bullet points).

1. They failed to provide information in time within the 40 days.

2. Despite 3 letters requiring information around call recordings and database notes specifically within a date period none were provided.

3. An application made on 1 May 13 was requested (screen shots) they failed to provide.

 

Although I have only just sent them the latest letter by recorded delivery I've still referred it to the ICO because I complained about 20 days ago too and haven't had a response!

 

Hope that's ok.

[citizenB]

Sounds good to me

[orfoster]

After a telephone call with Halifax today after they had received my letter they have advised me that they will not be providing the information I require.

 

They aren't willing to enter into further discussions with me.

 

I know I can now go to the ICO or go to court, a big part of me wants to get a court order to make them look silly for refusing to provide the data.

 

What are your thoughts?

 

O

[orfoster]

Hello,

 

So while I am waiting for Halifax to ignore my latest letter about failure to disclose information I have been drafting a Letter Before Action that I wondered if someone could check out for me?

 

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 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.

 

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 and by recorded delivery, 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.

 

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. 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.

 

Outcome sought

1. That 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.

 

Further action

Failure to comply or respond to my letter will result in court proceedings being issued without further notice where I will make an application for compensation and reasonable costs accordingly.

I look forward to your prompt response.

[orfoster]

I am now in a position where I feel that I have no choice but to issue an LBA, I will post the contents shortly, can someone check it over for me?