Barclays re-mortgage, enforcing an FOS ruling in my favour

[sharpgun]

Right in view of the 14 days expiration next week and the fact they will promised to call me back today.

 

What proceedings to I issue?? Is it n233? And what do I actually say?

 

Bearing in mind they have paid the compensation the ombudsman told them to but still owe me money and refusing to give me statements and take off the arrears notice on my account and with the reference agencies. 

[BankFodder]

I'm going to say now that I have no experience of this but we will work it out. I'm going to find an N322A on the Internet and have a look

[BankFodder]

 

 

Enforcing financial ombudsman decisions | Feature | Law Gazette

WWW.LAWGAZETTE.CO.UK

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Why are attempts to enforce Financial Ombudsman Service decisions in the legal system so onerous?

 

 

Form N322A: Application to enforce an award - GOV.UK

WWW.GOV.UK

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Form N322A: Application to enforce an award.

 

[AndyOrch]

4.2 An application under rule 70.5(3) for an order to enforce a decision or compromise must be made by filing an application notice in practice form N322A.

 

4.3 The application notice must state –

(a) the name and address of the person against whom the order is sought;

(b) how much remains unpaid or what obligation remains to be performed; and

(c) where the application relates to a conditional compromise, details of what under the compromise the applicant is required to do and has done under the compromise in addition to discontinuing or not starting proceedings.

 

4.4 Where –

(a) the application relates to a conditional compromise; and

(b) the application notice is served by the applicant on the respondent,

the applicant must file a certificate of service with the court within 7 days of service of the application notice.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part70/pd_part70

 

https://www.gov.uk/government/publications/form-n322a-application-to-enforce-an-award

 

[BankFodder]

Looking at the notes, it seems that the court can enforce a money award – if it hasn't been paid (in your case I think it has) but also can enforce a "direction" – and as far as I can gather, the part of the ombudsman's decision which has so far not been implemented by the bank is the "direction".

I think you need to read the notes very carefully – in particular the requirements that you refer to particular acts of Parliament – especially section 228 (5) FSMA 2000 and also section 229 (9)  FSMA 200

See page 2 of the notes which I've attached to this post.

So far as I can see from the form, it seems to be geared towards simply enforcing a money decision. I think that you may well need to attach a separate page explaining that the ombudsman's decision of XXX date containing a money award and also direction has only been partially fulfilled in that the money has been paid but that the other elements of the decision contained in the ombudsman's direction have not been implemented by the bank despite the fact that you have been at pains to remind them.

Quote

 

Ex parte

this is an application to enforce a decision of the financial ombudsman service against Barclays bank plc dated XXX.
The ombudsman decision which is attached ordered the bank to pay £XXX. This money has been paid.
The ombudsman decision also ordered the bank to take the following action:
one
two
three
the bank has not complied with the ombudsman's decision and despite the best efforts of the applicant to persuade them to do so, they have so far declined.
As a result of this, the applicant is obliged to ask for the aid of the court to grant an injunction against the bank to enforce the decision.
The applicant would respectfully point out to the court that the banks continuing refusal to apply the Amazon's decision is causing grave difficulties to the applicant – in particular, the applicant's credit file and credit rating has been seriously damaged. Give more information here
 

I respectfully draw the court's attention to section 228(5) Financial Services and Markets Act 2000 which provides that the ombudsman's decision is final and binding.
You also respectfully draw the courts attention to section 229 (9) Financial Services and Markets Act 2000 You Respectfully Request That the Court Grants an Injunction against the Bank in Order to Enforce the Direction.  The Ombudsman decision to be implemented within 14 days of the order and the applicant to be informed in writing, failing which they should pay £100 per day to the applicant until the order has been completely obeyed and the applicant informed in writing

Plus costs of the application, plus litigant in person costs

 

Something like that
 

n322b-guidance-notes-eng.pdf Explanatory notes concerning enforcement of an ombudsman.pdf

[sharpgun]

After reading that it sounds very difficult to take it further 

[BankFodder]

Why is it difficult. It looks pretty straightforward – except that very few judges will have experience of this. This is why also it may be wise to attach the notes and also attach extracts from the 2000 Act. Of course you will also attach a copy of the ombudsman's decision.

I shouldn't be put off from it if I were you. There is nothing to argue. As soon as the court accepts that it has jurisdiction to do this, it will go ahead and grant the injunction.

The claim will have to be started on paper at your local court – and I don't know how much that will cost, you have to ask them. There doesn't seem to be any clue on the Internet that I can find although maybe you or somebody else will have better luck.

[BankFodder]

Why don't you prepare a draft on the basis of what I've posted above, and we'll have a look. I'm still trying to find the applicable fee on the Internet – but you may have to ask your local court. I bet you they won't be very certain either

 

 

===========================

 

Actually I think the fee is £308.

It's a chunk of money – but you'll get it back. Also, when the FOS decision has been implemented, will have a look at the whole thing and help you begin an action for some extra compensation.

Edited June 18, 2021 by BankFodder
Discovered the fees for this injunction

[BankFodder]

I've just added a short request for litigant in person costs at the end of the suggested draft above.

I suddenly realise that this is not a small claim. Normal cost rules apply. You should be to recover costs £18 per hour. Don't go for a money grab that you should start calculating how much time you have spent on this since the date the ombudsman's decision was handed down.

Time could be spent preparing, understanding the situation et cetera. It won't be a load of money but  there might be 10 hours or so. If it looks reasonable then the judge won't query it.

[sharpgun]

Just got this from TLT

 

Thank you for your email.

 

We note your comments and of course hope to revert back to you as soon as possible but this may not be by the deadline you state. As we said in our previous letter, this firm was only instructed to act recently and so our client must be given a reasonable and realistic opportunity to investigate and respond. We do not anticipate such a short delay will cause you any prejudice.

 

If legal proceedings are prematurely issued before our client has been able to provide its letter of response, we reserve the right to refer this correspondence to the Court on any question of costs that may arise in due course. 

 

We will be in touch.

 

Yours sincerely

[BankFodder]

Quote

The fact that your clients have only just woken up and instructed you is no concern of mine. It is simply a further demonstration of their poor attitude to the interests of their customers and also their disregard for decisions made by the financial ombudsman service.

 

You refer to a "short delay" but I notice that you are unwilling to give any kind of commitment. Your letter is littered with "as soon as possible" and "in due course". But the ombudsman's instructions are clear.  So are the courts powers under the FMSA 2000. There is nothing to consider no negotiation to be had and no compromises to be made - so why the delay?

 

Because you have made me feel sorry for you I'll give you an extra week.

If it was simply a question of money that hadn't been paid, I would agree. There would be no question of prejudice. However, we are talking here about damage to my credit file which has gone on now for well over a year and a half. Your clients may not care about their own reputation but I certainly care about mine.

 

The damage to my credit reputation is totally without justification. It is unfair treatment not to mention inaccurate data processing. It is continuing and your clients are wilfully exacerbating the problem. It's not clear to me whether they are doing this deliberately or simply because of their ineptitude. Do you know?

I'm quite happy that you share these documents with the court. Especially your admission that your clients have only just now instructed you despite the fact that this matter has been ongoing for a considerable time.
Frankly I would have thought that it would be in your client's interest not to reveal how slack their attitude and procedures are – but that's a matter for you.

And incidentally, there will be no question of costs if you simply don't try to put any response or defence.
The ombudsman's decision is binding and there's actually no reason for you to get involved except to hold a dialogue with your client and tell them to get a move on.
If your clients instruct you to get involved, then it will be completely unnecessary. This is not a contentious matter. There will be no need for an injunction if your client simply did what they were told by the ombudsman – which they will eventually have to do anyway.

I'm preparing the form N322 to apply for an ex parte injunction as we speak.

Legal proceedings for statutory breaches of FCA regulations and also the Data Protection Act will follow once your clients have complied with the FCA direction – whether they do it voluntarily or they are forced to by the court.

So don't come back and say you didn't know about that either.

 

 

[BankFodder]

I think that granting them an extra week is a pretty good gesture and shows that you try to be flexible, but given the time that this is all gone on for and the difficulties that the bank has caused, it is more than fair. I don't think there would be any question of costs against you.

Just like their clients, they are a bunch of bullies and they are trying to intimidate you

[sharpgun]

I will send the reply Monday that you drafted

[sharpgun]

I need to highlight the fact I cannot calculate how much overpayments that they owe because they are refusing to give me statements. 

[BankFodder]

As you are probably aware, I'm not really familiar with this thread any more.

I didn't know that they still owed you money. Please can you tell us more about that. What is the date of this debt to you?

Presumably that is included in the ombudsman's findings? Was any talk of adding interest to those sums?

[sharpgun]

Ok they owe me overpayments on the account. But. Can’t find out how much because they are refusing to send me statements of the arrears that didn’t exist and I have that in writing with them saying that because i have missed payments they are refusing to send them. ( I haven’t missed any payments)

on another note this has  got to be the most useless bank in the U.K.  they have just sent a revised payment for my mortgage which incorporates my arrears (that don’t exist) but with no breakdown. I know they have done this because I have spoken to Barclays member of staff who confirmed they had done that and he was surprised it wasn’t explained in the letter. Incredible  incompetence. Fortunately I recorded the call. 

[BankFodder]

Have you sent them an SAR?

 

[sharpgun]

Yes two weeks ago

[sharpgun]

I have to slightly amend your reply to tell them that they have also tried to hood wink me by increasing my monthly payments to include the arrears. Which is totally the opposite of what the ombudsman has told them to do. 

[BankFodder]

Would you post it up here so that we can see how you have expressed it

[sharpgun]

this is my draft

 

In reply to your email on Friday the 18^th of June.

               Firstly today I have received a letter from Barclays informing me that my monthly mortgage payments have gone up by £143 per month that when you calculate over the remaining term of the mortgage it equates to approximately 24k which is very near to the figure which was assumed by the bank to be my arrears. There was no explanation or calculation attached which I find hard to believe. So after contacting the bank and asking the adviser he confirmed that the bank had added on the amount to cover the arrears ( that don’t exist) so in reality I am going to pay the arrears twice. This below is what the ombudsman told your clients to do but unfortunately they obviously cannot read  I quote

From the ombudsman to Barclays

 

My final decision is that Barclays Bank UK Plc should:

· Restructure Mr A’s mortgage as if any arrears balance was added to the main balance of

the mortgage and the arrears extinguished upon the inception of the mortgage set out in

the mortgage offer dated 29 June 2019.

· Amend Mr A’s credit file and any internal records in line with the above – so that any

arrears were cleared upon inception of the new mortgage

 

I have asked the bank on numerous occasions for statements in relation to the so called arrears and  my overpayments  Which add up to a few thousand pounds so I can calculate what is also owed to me. They are refusing to give the statements to me stating that because I have missed payments they do not have to supply them , I don’t believe this is right and is not in line with the banking code of conduct.

 

The fact that your clients have only just woken up and instructed you is no concern of mine. It is simply a further demonstration of their poor attitude to the interests of their customers and also their disregard for decisions made by the financial ombudsman service.

 

You refer to a "short delay" but I notice that you are unwilling to give any kind of commitment. Your letter is littered with "as soon as possible" and "in due course". But the ombudsman's instructions are clear.  So are the courts powers under the FMSA 2000. There is nothing to consider no negotiation to be had and no compromises to be made - so why the delay?

 

Because you have made me feel sorry for you I'll give you an extra week.

If it was simply a question of money that hadn't been paid, I would agree. There would be no question of prejudice. However, we are talking here about damage to my credit file which has gone on now for well over a year and a half. Your clients may not care about their own  reputation but I certainly care about mine.

 

The damage to my credit reputation is totally without justification. It is unfair treatment not to mentioninaccurate data processing. It is continuing and your clients are wilfully exacerbating the problem. It's not clear to me whether they are doing this deliberately or simply because of their ineptitude. Do you know?

I'm quite happy that you share these documents with the court. Especially your admission that your clients have only just now instructed you despite the fact that this matter has been ongoing for a considerable time.
Frankly I would have thought that it would be in your client's interest not to reveal how slack their attitude and procedures are – but that's a matter for you.

And incidentally, there will be no question of costs if you simply don't try to put any response or defence.
The ombudsman's decision is binding and there'sactually no reason for you to get involved except to hold a dialogue with your client and tell them to get a move on.
If your clients instruct you to get involved, then it will be completely unnecessary. This is not a contentious matter. There will be no need for an injunction if your client simply did what they were told by the ombudsman – which they will eventually have to do anyway.

I'm preparing the form N322 to apply for an ex parte injunction as we speak.

Legal proceedings for statutory breaches of FCA regulations and also the Data Protection Act will follow once your clients have complied with the FCA direction – whether they do it voluntarily or they are forced to by the court.

So don't come back and say you didn't know about that either.

 

Regards,

[BankFodder]

3 hours ago, sharpgun said:

 

The fact that your clients have only just woken up and instructed you is no concern of mine. It is simply a further demonstration of their poor attitude to the interests of their customers and also their disregard for decisions made by the financial ombudsman service. 

 

You refer to a "short delay" but I notice that you are unwilling to give any kind of commitment. Your letter is littered with "as soon as possible" and "in due course". But the ombudsman's instructions are clear. So are the courts powers under the FMSA 2000.

There is nothing to consider no negotiation to be had and no compromises to be made - so why the delay? 

 

To add to the problem, your clients are acting in direct defiance to the ombudsman's direction by adding alleged arrears to the mortgage total and increasing the monthly payment. 

 

If it was simply a question of money that hadn't been paid, I would agree. There would be no question of prejudice. However, we are talking here about damage to my credit file which has gone on now for well over a year and a half.

 

Your clients may not care about their own reputation but I certainly care about mine.

 

The damage to my credit reputation is totally without justification.

 

It is unfair treatment not to mention inaccurate data processing. It is continuing and your clients are wilfully exacerbating the problem. It's not clear to me whether they are doing this deliberately or simply because of their ineptitude. Do you know? 

 

Because you have made me feel sorry for you I'll give you an extra week.

 

I'm quite happy that you share these documents with the court. Especially your admission that your clients have only just now instructed you despite the fact that this matter has been ongoing for a considerable time.

Frankly I would have thought that it would be in your client's interest not to reveal how slack their attitude and procedures are – but that's a matter for you. And incidentally, there will be no question of costs if you simply don't try to put any response or defence.

The ombudsman's decision is binding and there's actually no reason for you to get involved except to hold a dialogue with your client and tell them to get a move on.
If your clients instruct you to get involved, then it will be completely unnecessary.

This is not a contentious matter. There will be no need for an injunction if your client simply did what they were told by the ombudsman – which they will eventually have to do anyway.

 

I'm preparing the form N322 to apply for an ex parte injunction as we speak.

 

Legal proceedings for statutory breaches of FCA regulations and also the Data Protection Act will follow once your clients have complied with the FOS direction – whether they do it voluntarily or they are forced to by the court. 

 

So don't come back and say you didn't know about that either. 

 

Regards, 

 

[sharpgun]

I agree and yes the little paragraph does cover what the bank are doing but I need to tell them they are refusing to give me statements which I can calculate how much they owe me. ??

[BankFodder]

No, don't tell them that. Store it up.

You have sent them on SAR. Let's see if they respond with statements to that.

The SAR is a rope. You've given it to them – let's see if they hang themselves with it.

[sharpgun]

How lng do we have to wait for the sar to turn up?? It’s been two weeks I thinks it’s a month is that right. ?