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

[steampowered]

I have given the quantum issue some thought. If it was me, I would claim unspecified damages capped at 10k (excluding interest and costs) to ensure small claims track. I imagine there will be an argument about the level of damages further down the line. But I don't think it should go in the POC unless you have a clear basis for putting a figure on the amount.

 

If you have time on your side you could start by issuing a claim about non-compliance with the SAR ... but this will require a lot of patience and such claims have been heavily resisted by the courts, on the basis that the DPA was intended to help people monitor the compliance of data controllers with the DPA rather than provide documents for use in litigation. If it was me I would wait and seek disclosure of the documents you are after at the disclosure stage of the litigation.

[orfoster]

Morning steampowered,

 

Thanks, I think you're right, that's what I'll do, the complaint was lodged with the FOS on Friday. Apparently it's taking them about 5 weeks to get an adjudicator to look at them so I'll wait at least for that, I know I can take it right through the process but I have little faith in the FOS.

 

Re the SAR, I phoned them on Thursday to see what was going on and why they were ignoring my letters, they just said they were so busy, apparently someone called Debbie would be coming in over the weekend to carry out the work for the request although they told me there's no time limit for further requests. Again I have lodged a complaint with the ICO about 2/3 weeks ago so will see what they say. I would happily lodge a claim for failure to disclose on the SAR though, because I'm sure they'll rely on that info in court.

 

But yes I'll wait for disclosure through that process rather than lodge.

 

Cheers

 

Oli

[orfoster]

Hello all,

 

Lets say that the FOS don't uphold my complaint (just because I have no faith).

 

I just want to understand my legal options, can I bring court action in breach of MCOB rules? Or would I bring a breach of contract claim? How would you sue for receiving incorrect mortgage advice and unfair treatment? Which legal avenues would apply?

 

Cheers

 

Oli

[steampowered]

In my experience the FOS does uphold a lot of these complaints. The problem is that they are badly under-staffed so the process takes absolutely ages, at one time it was taking two years to resolve complaints. The other problem is that their decisions can be unpredictable.

 

A bad FOS decision would not stop you from bringing court proceedings. However I think any FOS decision would be looked at by the court judge and may be persuasive. As a general rule, judges are used to dealing with more black-and-white legal issues and are not that comfortable dealing with BCOBS/MCOBS. Many judges may defer to the FOS if it has already made a decision on an MCOBS issue.

 

Legally, my understanding is that you can bring a court claim for breach of MCOBS under s150 Financial Services and Markets Act 2000. The judge would expect you to point towards the specific rules which have been breached and, if possible, identify the specific losses you have suffered as a result of that breach. I'm afraid I can't see any breach of contract claim. There is a possible misrepresentation claim.

 

My guess is that you would have a better chance of success with the FOS and it would certainly involve a lot less work from you than a court claim ... but it would be a very slow process and any compensation would probably be quite small. Bringing a case like this in small claims would be time-consuming, but it would go relatively fast and does have a very high nuisance value for the bank as legal representation is expensive and they are unlikely to be able to recover any costs from you even if they win ... assuming you put in the time to run the claim properly.

[orfoster]

Hi Steampowered,

 

Well hopefully they will uphold this one, to be honest, the compensation isn't what I'm looking for it means more to me that they remove the arrears from credit file and remove my ex from the mortgage given the only thing holding us up was the mortgage arrears.

 

I don't know if they will but hey you don't ask you don't get.

 

They responded to my LBA today, despite asking for disclosure of documents they've just responded saying "you've exhausted complaints procedure we won't respond further".

 

I guess its over to the FOS now, they've had the complaint a week. The thing is I don't mind the FOS looking at it (despite me wanting it sorted asap) as long as they actually look at it properly.

 

Oli

[orfoster]

Hello all,

 

Today I have received the response from the FOS - I am entirely deflated by it and really could do with some support and guidance.

 

Effectively they are saying;

1. We agree you should not have been told that you could take a payment holiday but your offer does explain that you would need to "apply" for one in any event, therefore you have not been entirely misled.

2. Having seen Halifax's notes (they have never provided these through SAR despite asking 4 times for them) I can see you confirmed your income had reduced and hence why you wanted a payment holiday. Because you couldn't apply for a payment holiday you agreed to a nil payment arrangement.

 

They aren't agreeing to uphold my complaint and believe that £100 is fair compensation for the incorrect advice that led me to take my decision to take a mortgage!

 

They have totally ignored the fact that the Halifax website clearly says

Payment holidays are available for a variety of reasons usually to assist with a temporary change to your circumstances, like a change in employment or unexpected or unforeseen vehicle or household expenditure.

. I told Halifax that I had a change in job and that I would like to take a payment holiday and that this was temporary, how is this financial difficulty?! And yes if I hadn't taken one I would have ended up in difficulty otherwise why would I need to take a payment holiday?! (sorry am getting a bit irate now).

 

I attach the FOS letter for comment here[ATTACH=CONFIG]46926[/ATTACH]

 

My main beef is that we took a decision based on the e-mail here http://www.consumeractiongroup.co.uk/forum/showthread.php?392530-MCOB-claim-Incorrect-advice-Fairness&p=4294948&viewfull=1#post4294948 at a fixed rate. That was the sole reason we took it because they clarified the issue for us, in terms of risk we weighed up security over interest rate and decided to go with the higher rate because of their e-mail. We have lost out because obviously interest rates dropped so considerably during the fixed rate, only to be told that we couldn't take a payment holiday in the end anyway.

 

Any advice and emotional support gratefully received

 

Cheers

[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.

[orfoster]

Thanks CitizenB,

 

I've written to Halifax as suggested yesterday with basically a LBA around DPA compliance, I have also sent a copy to ICO as there is an open file on the issue with them. Apparently when I called ICO they said Halifax responded to DPA breach last week so someone from ICO would be writing to me soon, hopefully my other letter will help the ICO make a decision, while I know the ICO won't do anything I feel their letter would make Halifax look silly in court if this ended up there.

 

I've also contacted the adjudicator and said I haven't been provided with the full facts and I am unable to respond to her on the matter until Halifax comply with my original SAR and subsequent letters sent since 6 May.

 

Thanks for your support.

[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.

[orfoster]

Hi,

 

I want to prepare a claim in the County Court for DPA breach from Halifax. They've ignored my latest letter (I realise it was only recently sent) but this is my 6th letter to them sent recorded delivery and they've failed to respond.

 

The FOS have said they won't get involved in the issue and if I can't provide the evidence I've asked Halifax to provide by 29 October they will close my file, all is not lost because they'll consider any new information when I send it in.

 

The ICO are likely to respond to me within 14 days about my complaint but I'd still like to prepare County Court action because I feel they're taking the michael now.

 

I had found template POC's for DPA failure to disclose on here but I can't find them now, could someone point me in the right direction?

 

Cheers

[orfoster]

And also what's the fee? Is it £175? As a non-money County Court claim? http://hmctsformfinder.justice.gov.uk/courtfinder/forms/ex050-eng.pdf

[steampowered]

Please think very carefully because you issue a claim asking the court to order the bank to comply with the DSAR. As this is a non-money remedy it would normally be a Part 8 claim and not small claims track, which means you will be liable for the bank's legal costs if you lose. These could easily be thousands of pounds.

 

That is what happened in this thread: http://www.consumeractiongroup.co.uk/forum/showthread.php?386041-Wandered-into-court-costs-minefield

 

I should also add that the DPA case law generally speaking is very hostile to people using the DPA to get documents for use in litigation, on the basis that the DPA was designed to help people protect their privacy not to circumvent the normal litigation disclosure process, so there is no guarantee of success.

 

The better alternative would be to issue a claim for financial damages below 10k to ensure SCT. But difficult to see what damages you have suffered here? I think you would at least need a clear idea of what specific documents you are hoping to obtain.

[orfoster]

Hi steam powered,

 

Thanks, I've reconsidered and actually after re-reading the thread I'd overlooked of course I can ask for disclosure if they fail to disclose now during the court process if it ends up there. Thanks for explaining it, its just frustrating that they are being so difficult although I would hope if the ICO agrees with me a judge wouldn't look overly favourably on them.

[steampowered]

No worries. I wish there was an easier way to enforce the DPA through the courts.

 

Just a thought - have you tried issuing the DSAR to Halifax's DSAR team? It may be that you will be able to get something by sending your DSAR to that team, even if the complaints team won't talk to you.

 

DSAR Team

10 Carlton Street

halifax

HX1 2AL

[orfoster]

Yeah it is annoying but with the delay I guess it means I can focus on other things. The ICO (I'm surprised) have been very helpful on a number of issues lately.

 

Yeah I've been sending things to the DSAR Team, not at that address but at their PO Box address. I did call once back in August and they said they were bogged down with PPI SARs so were majorly behind.

[orfoster]

Hello all,

Just a thought.

The FOS have said I wouldn't have got a payment holiday because of my circumstances. They've based their assessment on the notes of a call which reads 'reason for request - reduction in income'. They say that because of that I'd never have been able to get a holiday.

 

The Halifax website even today says that you can take one if 'you have a reduction in income'.

 

The FOS say Halifax set the criteria, am I going mad but wouldn't it be sensible to say that the website gives a good impression of that criteria or certainly would support my request.

 

Can I get their criteria? Or is that a red herring do you think?

[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..

[orfoster]

Just to let you know the ICO have now held that it is unlikely that Halifax have complied with the DPA for failing to provide information and note that they have still failed to comply.

 

I have raised a separate complaint with Halifax and received an acknowledgement today, I am also sending another reminder to them tomorrow requesting the data or confirmation that it isn't held.

 

I think if I don't receive it by the end of the year I'll be forced to request an order from the court.....I don't see I have any other option, I've sent them so many reminders now. The FOS have told me Halifax are in receipt of my request.

 

Incase I haven't clarified this, I am asking for copies of calls taken back in November last year when I requested a payment holiday. Halifax said they don't store calls by calls history on a customers file nor are they searchable by name or account number so you need the name, time, call id of the person taking the call which is only located in the note (notes which were not ever disclosed to me but only disclosed to the FOS which is where I got the details).

 

So back in mid October I requested the calls, its possible they don't have the calls.

 

The reason I'm requesting the calls is because the bank have noted on the call "customer has reduction in income" which has resulted in the FOS saying I was in difficulty, obviously within the call I explained in much more detail the reason for this being temporary and why I wanted a payment holiday, I even said I'd pay it back in full by May/June 13 which is exactly what I did.

[orfoster]

Also on another note, my activism within me is telling me to have a t-shirt made up and stand outside the local branch surveying passers by/customers whether they believe its fair that Halifax provided misleading advice, broke a promise and have offered no resolution.

 

I did this for my grandparents last year when Benson 4 Beds failed to replace a faulty bed which they said was ok, it worked really well! I had a settlement within an hour!

 

Lol - maybe a bit much at the minute.........

[orfoster]

I raised a complaint re the DPA non-compliance with the CEO of Lloyds Banking Group - I had a response from their Executive Office saying they were sorry they couldn't agree with my complaint that they have breached the DPA.

 

They say they complied with the initial sar only 14 days late.....this despite the fact that specific information I requested in my letter of 6 May 2013 has TO DATE still not been provided.

 

They have given me £250 compensation.

 

Apparently they are trying to provide the data I requested and told me they would make this a priority (17 December), this information is quite crucial to my complaint about them.

 

I need to fully research taking a claim against them with a bid to getting an order for them to comply. I can't believe that they have received all of my letters asking for this since May in June, July, September, October, November and December but they still haven't provided the information.

 

Surely a court would side with me if I brought a claim on the basis that they have failed to comply?

[steampowered]

Surely a court would side with me if I brought a claim on the basis that they have failed to comply?

 

Perhaps but this kind of claim can be risky for the reasons given above. If they have said they are looking for the information it is best to wait if at all possible.Do try to keep the ICO involved to add pressure if you can.

[orfoster]

Ok, I have now had enough of the Halifax on this.

Summary of claim;

Joint mortgage - only I want to sue though

Incorrect advice given by email in July 2008 by mortgage advisor.

 

Question is can I bring a claim myself although its a joint mortgage? Also would this be under professional negligence or breach of contract? The words professional negligence are a bit scary and the pre-action conduct looks a lot more intensive and ideally I want this to stay in the small claims court.

[citizenB]

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

[steampowered]

With something like a mortgage both borrowers are jointly liable for the full amount, so I would think it is fine to sue in your own name.

 

This is breach of contract and/or misrepresentation and/or a claim under finanncial services legislation for breach of regulations, not professional negligence. You should be using the general pre-action protocol (Annex A).

 

Have you suffered any financial loss as a result of this? I don't think a court claim would achieve getting your ex off the mortgage.

[orfoster]

With something like a mortgage both borrowers are jointly liable for the full amount, so I would think it is fine to sue in your own name.

 

This is breach of contract and/or misrepresentation and/or a claim under finanncial services legislation for breach of regulations, not professional negligence. You should be using the general pre-action protocol (Annex A).

 

Have you suffered any financial loss as a result of this? I don't think a court claim would achieve getting your ex off the mortgage.

 

Morning, great, thanks.

 

Yes, the loss being claimed is the fact we made a decision to fix the mortgage rate at that time based on what the advisor told us, that was a higher rate. Had we been told the truth we would have stayed on a standard rate so to be able to change if we found a better provider.

 

We fixed for 5 years thinking we had the security if that makes sense so the interest adds up, that's essentially the claim I'd bring. I can get my ex taken off soon anyway because of the length of time passed.