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Acenden/SMPL Mortgage fees reclaim threshold - 6yrs??


ChrisS1968
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Hi all,

 

We ended up making the cataclysmic mistake of placing our mortgage with SPML about 7 years ago

after rather foolishly taking the services of an independent mortgage broker.

 

 

Unfortunately like so many others at the time we got into arrears during the "credit crunch" period.

 

 

I wont go into all the details of the arrears

 

 

my my concern is that over the phone today I was informed by Acenden that my arrears still stand at 5 months

(this I already knew, some £3500)

but the various charges they have applied have added a further £4500 plus change taking

our current arrears to in excess of £8000.

 

Now we can afford our monthly contractual payments and we are also paying an additional £70 a month

to clear the arrears so we are currently in good shape for that.

 

My question is that I want to challenge the charges.

 

 

I have read threads on here and it certainly sounds like a real possibility.

 

 

What I am worried about is that if I do challenge them,

being 5 months behind will I be at risk of opening a can of worms that could

result in them starting repossession proceedings?

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nope they cant

that would be retaliatory actions and against regulations.

 

 

go get 'em!

 

 

do it properly

spreadsheet

complaint forms etc etc

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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  • 6 years later...

Hi all,

 

About 7 weeks ago I sent a letter disputing around £4615.00 worth of arrears management fees and other assorted fees to our lender SPML or at least their administration arm Acenden.

 

True to form I received a call from them right on the edge of their response deadline from a lady from Acenden informing me that she is the one looking into my complaint and that she can only refund fees that are less than 6 years old.

 

This sounds right even though it doesnt actually suit me

 

my question is this. Is it possible to reclaim these fees by way of a small claims process?

 

Surely they cant make a statute barred defence as the account is still live?

 

If needed I can post a redacted copy of my letter to them together with a copy of the charges etc....

 

Many thanks, Chris

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Old and new threads merged.

You should have done this 6yrs ago.

 

Neither should you be using the phone as youll have no paper trail if you ever do goto court.

Which i wouldn't no. 6yrs is correct as you knew you could reclaim in 2016......

 

Dx

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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  • dx100uk changed the title to Acenden/SMPL Mortgage fees reclaim threshold - 6yrs??

To be honest its a fair point to say I should have done this a while back however two things. Firstly & mostly the wife has been desperately ill for the last six or seven years and she was always worried about challenging these charges while we were in arrears. I know you said in my original post that they cant take retaliatory actions but there was no convincing the wife of this.

 

Anyway, whats done is done and I would hate to let them get away with this if there is a chance.

 

Ive read a few things that say under certain circumstances these fees could still be challenged on both the FOS website and the FCA's. So is it really a dead duck?

 

Another point is that I was always under the impression that as long as the account was live and not settled there wouldnt be a time limit?

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its when you became or should have become reasonably aware they were poss reclaimable.

 

 

dx

 

 

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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So..... just got the letter that I have been expecting all along. They are saying they are not going to to anything about charges applied to our account that are over six years old so no real surprise there.

 

One thing in the letter that caught my eye is a line regarding the rules on such matters that states "This rule states that you have up to six years to raise the issue that occurred with us, or three years in which you should have been aware of the fees and charges on your account to make a complaint"

 

Reading this on moneysaving expert "The Ombudsman says you can reclaim fees from as far back as you like, as long as you make the complaint within three years of realising you could. " what Acenden are saying isn't correct.

 

As far as timelines go, until a few months ago I had never questioned these charges on our mortgage with them, not once. The first mention of them from me is when I requested a breakdown of all of the charges to our account as over the years Acenden have been crafty with concealing charges. On your annual statement they would detail charges at one time. Then one year they stopped and just added them onto the balance total.

 

So as far as time limits go, how on earth can they challenge you, claiming that you have known about the possibility of reclaiming these fee's for three years and over?

 

I guess then the next step would be the FOS but ive had dealings with them in the past when reclaiming PPI and they were worse than useless.

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The key to using the FOS is a carefully worded letter 

 

The issues you mention above are certainly a start 

 

Dx

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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  • 3 months later...

Thanks for reopening the topic.

 

Its taken ages to get a response from the FOS hence the delay in updating but the FOS being what they are its nothing to shout about. I'll paste in the email trail in bold italic.

 

Dear *******

 

Mr ****** complaint about Kensington Mortgage Company Limited

 

Thank you for your patience while I’ve been investigating whether we can look into your complaint. I’ve looked into all the information that both you and Lloyds have provided, and I have enough to consider if we can look into this complaint.

 

In summary I understand that this complaint is about the charges and fees that have been applied to your account when you missed payments on your mortgage. You would like these fees and charges waived. 

 

The Dispute Resolution Rules (DISP rules) laid down by the Financial Conduct Authority set out what complaints we can look into and when they should be brought to us. Unless a business gives us consent to look into the complaint outside of the time limits set out in DISP, you would need to bring your complaint to us within:

                      six years of the event you are complaining about, or, if later,

                      three years from when you were, or ought reasonably to have been, aware that there was a reason to complain.

unless there are exceptional circumstances that prevented you from bringing your complaint to us in time.

I’ve considered all the information that you and Lloyds have provided, and I’ve attached my findings to this email. My outcome is based on what I believe is fair and reasonable in this situation. In order for me to believe that we can investigate this complaint, I’d have to see that it was brought in time or that there were exceptional circumstances that prevented you from bringing it in time. It is on this basis that I considered your complaint and present my findings.   

 

 

Kind regards

 

 

My Reply

 

Dear *****
 
Thank you for your email although I cannot say that I wasn't disappointed with your findings.
 
Anyway, in answer to your point with regard to the three year rule....
 
 
"The three-year part of the rule would also apply to each charge, as above but the
difference is it looks at when you ought reasonably to have been aware that you had
a complaint. In October 2015 you were sent a letter that confirmed the change to the
fee policy and that you would be refunded £309.84. I believe you ought to have been
aware at this point and three years from October 2015 is October 2018.
"
 
I'm at a loss as to understand why the refund given in October of 2015 would lead me or anyone else for that matter to think that they could challenge any other fees? If I am told by my mortgage lender that I have been refunded an amount of money due to changes in their fee structure I would assume that they are addressing any fees that were affected and that any other fees or charges would be fair legal and wouldn't be questionable. As a consumer and like many others I'm sure, I was under the impression that any fees or charges applied to an account by any financial services company would be binding and within the regulations as stipulated by the FCA.
 
To quote Acenden from their own letter............
 
"I have also enclosed a copy of our letter of 16th October 2015. This explained that £280 AMFs had been refunded as a gesture of goodwill, due to a change of our fee charging policy."
 
If this refund was a goodwill gesture as it states why would that lead me to believe that it was anything other than that? It certainly doesn't infer that any other charges could be questioned let alone reversed or refunded.
 
And for this reason I was always under the impression that I would have no grounds for complaint and therefore never looked into the matter further. Until however I received a call from Acenden at some point around May/June of this year asking me if I wanted to pay the fees in one lump sum or set up some kind of payment arrangement. It was this that first inspired me to look closer at this and what has lead me here today.
 
"You haven’t provided exceptional circumstances for the delay."
 
This isn't a part of my life that I wanted to re-visit but it appears I have to if only to try and get a fair outcome.
 
Like millions of people at the time I was directly affected by the financial crisis of that era. I was a self employed contractor who lost my income almost overnight and as a consequence fell into financial hardship. I approached Capstone (Acendens predecessor) for help but they simply were not interested. The only assistance they offered was for us to maintain our CMP together with an amount over and above to go towards the arrears. So there am I, I cannot afford my CMP yet Capstone want this plus extra to clear the arrears. And so begins the vicious circle of fees and threats. I asked Capstone to consider a payment holiday to give us some breathing space and give us a chance to catch up but it was always met with refusal. What followed for me personally was the better part of three years of anxiety and stress. Just to make matters worse, around 2011 my Wife became unwell and working became difficult for her and had to reduce her hours. This went on for the next seven years before she finally received an accurate diagnosis and treatment commenced. She is still to this day under the care of UCLH in London and as a result of her illness registered disabled. So all in all we were somewhat distracted from this issue for quite some time.
 
Kind regards,
 
Their Reply
 

Dear *****

 

Mr ***** complaint about Kensington Mortgage Company Limited

 

Thank you for your email. I sent you my view of this complaint on 1 December 2022 and can confirm that what you have said doesn’t change my findings.

 

You have stated that you didn’t believe that the letter of October 2015 was enough to create awareness that other fees could be challenged. The rules are not about awareness that you can complain, but that there is something to complain about. The three-year part of the rule deals with when you ought reasonably to have been aware that there were charges on the account, and I believe that the letter in October 2015 satisfies this. You would have also been sent statements that showed the charges applied to the account.

 

You have also mentioned the reasons for the delay in raising the complaint. I appreciate you’ve said that you were affected by the financial crisis, but you have also mentioned that you made contact with Capstone during this time. In order for the circumstances to be considered exceptional, we have to believe that you were unable to make contact or maintain contact with the business or continue in your day-to-day activities. As you maintained contact with Capstone and Acenden, I can’t say that exceptional circumstances apply.

 

 

An ombudsman will review this complaint

Because you didn’t agree, an ombudsman will review the complaint and make a decision. That means:

  • An ombudsman will consider whether this is a complaint we can look at, and make an independent decision. They’ll put the decision in writing to both you and Kensington Mortgage Company Limited, and explain their reasoning within the decision.
  • If the ombudsman’s conclusions are different from mine, they will explain why and let you reply before they give you their decision. Otherwise, they won’t usually get in touch before issuing their decision unless they need more information.

 

We should already have all the information the ombudsman needs to reach a decision. But if we need anything more from you, we’ll let you know.

What you need to do now

If you have any further points or information you’d like the ombudsman to consider, please send these to me by 12 December 2022.

If you need more time to reply, please let me know before this date. If I don’t hear from you, I will assume you do not want to add anything.

We will keep you up to date with our progress – but please get in touch if you have any questions.

 

 

Kind regards

 

Sorry if its a bit long winded but I didn't want to leave anything out.

 

So it would appear that with regard to "knowing" means knowing about the charges and not knowing that you could have grounds for a complaint, seems a bit silly to me. If you have a mortgage you get an annual statement so why wouldn't you know about the existence of charges?

 

Anyway, this being the case and the FOS not wanting to upset their buddies in the financial services the next step can only be court action. I know I am awaiting a decision by an actual Ombudsman (previous email were from an investigator) but this is a foregone conclusion I think. So if the FOS have (or are going to) bin my complaint is it even worth making a court claim, wouldn't the judge just rule in favour of SPML based on the FOS's findings? I'm happy to fight SPML but I don't want to throw money after bad, done enough of that already.

 

Really wish I'd got my arse in gear with this now and if I could kick my own arse right now I would but I never realized there was a time limit for this!

Edited by ChrisS1968
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we haven't seen their reply .....it was an attachment?

 

no court would be pointless not seen anyone win in years against these scammers??

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Share on other sites

This is still bugging me, if only I'd been this persistent six sodding years ago but there it is.

 

Anyway, to quote the FOS investigator from their last email........

 

You have stated that you didn’t believe that the letter of October 2015 was enough to create awareness that other fees could be challenged. The rules are not about awareness that you can complain, but that there is something to complain about. The three-year part of the rule deals with when you ought reasonably to have been aware that there were charges on the account, and I believe that the letter in October 2015 satisfies this. You would have also been sent statements that showed the charges applied to the account.

 

And from the FCA's website.....

 

The Ombudsman cannot consider a complaint if the complainant refers it to the Financial Ombudsman Service:

  1. (1)

    more than six months after the date on which the respondent sent the complainant its final response, redress determination or summary resolution communication; or

  2. (2)

    more than:

    1. (a)

      six years after the event complained of; or (if later)

    2. (b)

      three years from the date on which the complainant became aware (or ought reasonably to have become aware) that he had cause for complaint;

    unless the complainant referred the complaint to the respondent or to the Ombudsman within that period and has a written acknowledgement or some other record of the complaint having been received;

 

Is it just me or do the two red highlighted comments contradict themselves?

 

I know, I'm clutching at straws here....

Edited by ChrisS1968
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