SPML/LMC anyone claimed for mis selling and unfair charges?

[Suetonius]

Please bear in mind with the above, it does have to be personalised to your specific circumstances, for example mortgage vs secured loan and regulated vs unregulated etc....

 

If your complaint is not upheld, ask the Adjudicator for his or her comments on this specific extract:

 

But the central question that will no doubt be raised increasingly with the Ombudsman is whether or not the charges levied are lawful. More generally, as my earlier brief example of the mortgage arrears fee shows, the application of extensive fees for customers already experiencing debt problems may not be fair treatment. Certainly it does not always sit well with the sympathetic and positive treatment of those in hardship.”[/i]

 

Source: speech by Tony Boorman, decisions director and principal ombudsman, at the CML's complaints-handling seminar –London, 12 March 2008.

[bustthematrix]

You could email the Adjudicator something along the lines of (this is from an FOS complaint form, I have previously posted here and has been copied elsewhere):

 

My complaint is about the excessive and unfair fees and charges applied to my mortgage.

 

I consider the application of these charges and fees clearly demonstrate that my lender treatment of me has not been sympathetic or positive and incompatible with ‘Treating Customers Fairly’. I also consider that the application of these fees and charges is in clear breach of the requirement of MCOB.

 

 

To resolve my complaint, I require a full refund of all of the additional charges and fees, including but not limited to late payment charges, monthly administration fees and litigation fees that have been applied to my account.

 

In addition I require a payment equivalent to interest at 8% simple from the date each fee and charge was applied to my account until the date of refund.

 

Taking into consideration recent events with regard to the Financial Services Authority, GMAC and Kensington Mortgage, I also request an additional award in recognition the additional distress and inconvenience caused by my lenders breach of DISP 1.4.3. My lender should have reasonably have known that my complaint would be upheld by the Financial Ombudsman Service and therefore should have taken steps to resolve my complaint at an earlier opportunity.

 

I would like to take this opportunity to draw your attention to the enclosed ‘Final Notice’ issued by the Financial Services Authority (FSA) the regulator of the finance industry. My lender breached Principle 6 during the Relevant Period in that it failed to pay due regard to the interests of its customers and treat them fairly.

 

They applied certain charges to my account that were unfair in that they did not accurately reflect the actual cost of administering an account in arrears. They had not arrived at a cost-based approach to the calculation of its arrears charges and therefore could not be sure that they were reasonable compared to the actual cost incurred. (if a FSA regulated agreement add) Therefore, my lender is in breach of MCOB 12.4.1R.

 

 

Lesley Titcomb, FSA Director responsible for the Mortgage Sector, also said

 

“As our data shows in these current market conditions more people are struggling to meet their mortgage payments and it is vital that firms treat them fairly. This means paying attention to their individual circumstances and not repossessing their homes when there may be an alternative solution. Repossession has to be the last resort. The FSA’s programme of actions to address the problem areas, includes a closer examination of charges, in particular the circumstances in which these are levied, and whether they are compatible with Treating Customers Fairly”

 

Source: FSA reiterates call for firms to treat customers fairly in current market conditions - FSA/PN/087/2008 - 5August 2008

 

I consider all of the additional charges and fees applied to my account to be unfair as per the Unfair Terms in Consumer Contracts Regulations 1999 because they did not accurately reflect the additional administration work to the mortgage account caused by the fact that I was in arrears. I also contend that by applying these charges and fees to my account my lender has also not met its treating customers fairly (TCF) obligations.

 

I would like to also take this opportunity to draw your attention to the following

 

“ Elsewhere, the present debates about bank charges and the previous action of the OFT on credit-card charges are also relevant. We have already seen some customers raise queries about the level of charges made by lenders when they are in debt. The Citizens Advice report suggests that some lenders’ debt-collection practices are distorted by including steps that involve the customer paying additional fees. The range, complexity and level of these charges may all be matters for consideration. But the central question that will no doubt be raised increasingly with the Ombudsman is whether or not the charges levied are lawful. More generally, as my earlier brief example of the mortgage arrears fee shows, the application of extensive fees for customers already experiencing debt problems may not be fair treatment. Certainly it does not always sit well with the sympathetic and positive treatment of those in hardship.”

 

Source: speech by Tony Boorman, decisions director and principal ombudsman, at the CML's complaints-handling seminar –London, 12 March 2008.

The FOS is getting more and more inundated with complaints. Before you go to it, it is important that you first complain directly to the Lender concerned.

[Suetonius]

The FOS is getting more and more inundated with complaints. Before you go to it, it is important that you first complain directly to the Lender concerned.

 

Hello BTM

 

I think the case is not only already with the FOS but has been allocated to an Adjudicator and the question is that it would appear that only one charge will be refunded...

 

My claim has at this point been passed to an adjudicator whomI have informed of all issues with the aforementioned ****! The adjudicator has today come back and advised me that due to them refunding this single charge, the whold case is going to be looked at again in the next few days in order for him to make his final deecision.

 

Should I be worried? The reason for the charges mainly stemmed from late payments as beore my court appearance they refused to change the date of payment. Yes they did refund one charge but I strongly believe they need to refund all the charges. Is this a lost cause, I am quite concerned now

 

Hence...

 

You could email the Adjudicator something along the lines of

 

Slgsue, it might be advisable to contact the adjudicator before any decision is made in relation to the outcome.. Make the adjudicator think about the issues, especially with regard to the comments made by the Decisions Director for the FOS. After all decisions are the outcomes of complaints...

 

One other thing, the Adjudicator can not make a final decision, only an Ombudsman has the power to do that....

Edited February 1, 2011 by Suetonius

[anotherone]

im another one london mortgae capstone acenden...1 month arreares fees charges notes through my letter box threats abuse what is up date shall i do thanks

[anotherone]

im another victim fees fees .... any quick help advice

[littledotty27]

Welcome to the forum anotherone. :0)

 

I can't understand why they are being like this to you with only 1 months arrears!! :@ they are a disgrace to society.

 

If you have a statement showing all the breakdown of charges they have added on,write a letter of complaint to ,also requesting they refund you the charges. If you don't receive a satisfactory outcome then you will then be able to take it either through the courts (which will be quicker) or to the FOS

If you go down the FOS route but that could take you 18 months before your case is looked at.

 

Are you able to pay your payment & a bit extra towards the 1 month arrears?

 

What threatening comments are you getting?

[anotherone]

im another fees victim acenden....any quick suggestions action

[anotherone]

they push letters through my letterbox no doubt more fees and send silly letters over30 so far when i ring them up they dont help atall

[anotherone]

my wife is eriously ill incapacity benefit was in hospital when they came round my house

[littledotty27]

Who was it that came round?....Asenden...Bailiffs? Do you live quite close to them?

[anotherone]

pm? not allowed to put my email on here cos im new but you can find me at pyramid sports prestwich on the internet websites email

Edited February 1, 2011 by anotherone
spelling error

[littledotty27]

pm? not allowed to put my email on here cos im new but you can find me at pyramid sports prestwich on the internet websites email

anotherone....the PM was aimed at me from a member of admin,but if you wznt pm anyone there is the facility on here.

 

Read my post I put with some info to help you...you seem frustrated!

[littledotty27]

Littledotty - I've sent you a PM

i'll contact you at somepoint tomorrow re PM

[slgsue]

I have indeed gone through all the protocol to get my complaint to this point. Just want to clarify a few things, Ascenden refunded the £115 which was added in October - 6 months after my initial complaint to FOS, within a month (amazingly quick for them!) The complaint is in relation to all the other charges they have added, to which they have offered me a £500 figure, this was refused for obvious reasons. I will not accept anything less than what they have added to my account!!!

I feel that they know the charges are excessive, if they didnt then why try and buy my silence with a silly offer. I just dont want the FOS to see a refund of 1 charge, which was added after the initial complaint to FOS to be seen as my acceptance of full and final settlement. I also believe that Ascenden, being aware of an ongoing complaint with the FOS just did it to shut me up!!! I am adamant that I will fight this to the death, I just hope that eventually they will see what these cowboys are doing and put a stop to it!

[jasperpad]

For them to send more than 30 letters for one missed/late payment this is completely excessive!

 

I would write (do not phone them) and explain the problem and point out that they are harassing you for a debt that is just one month behind.

 

If the ring you politely tell them that you do not conduct your business over the telephone and that if they want to discuss the account to do it via letter, that way they cannot say that you agreed or did not agree to something as it will all be in writing.

 

jasperpad

 

they push letters through my letterbox no doubt more fees and send silly letters over30 so far when i ring them up they dont help atall

[peterjm]

That is a pretty comprehensive complaint format and well worth storing for future use.

I actually remember helping someone with an FOS complaint a couple of years ago concerning a mortgage taken out in 1988 and they had a good result,the mortgage could have been in no way regulated then yet the fos dealt with the complaint so must be worth giving them a try on all and every mortgage .

 

You could email the Adjudicator something along the lines of (this is from an FOS complaint form, I have previously posted here and has been copied elsewhere):

 

My complaint is about the excessive and unfair fees and charges applied to my mortgage.

 

I consider the application of these charges and fees clearly demonstrate that my lender treatment of me has not been sympathetic or positive and incompatible with ‘Treating Customers Fairly’. I also consider that the application of these fees and charges is in clear breach of the requirement of MCOB.

 

 

To resolve my complaint, I require a full refund of all of the additional charges and fees, including but not limited to late payment charges, monthly administration fees and litigation fees that have been applied to my account.

 

In addition I require a payment equivalent to interest at 8% simple from the date each fee and charge was applied to my account until the date of refund.

 

Taking into consideration recent events with regard to the Financial Services Authority, GMAC and Kensington Mortgage, I also request an additional award in recognition the additional distress and inconvenience caused by my lenders breach of DISP 1.4.3. My lender should have reasonably have known that my complaint would be upheld by the Financial Ombudsman Service and therefore should have taken steps to resolve my complaint at an earlier opportunity.

 

I would like to take this opportunity to draw your attention to the enclosed ‘Final Notice’ issued by the Financial Services Authority (FSA) the regulator of the finance industry. My lender breached Principle 6 during the Relevant Period in that it failed to pay due regard to the interests of its customers and treat them fairly.

 

They applied certain charges to my account that were unfair in that they did not accurately reflect the actual cost of administering an account in arrears. They had not arrived at a cost-based approach to the calculation of its arrears charges and therefore could not be sure that they were reasonable compared to the actual cost incurred. (if a FSA regulated agreement add) Therefore, my lender is in breach of MCOB 12.4.1R.

 

 

Lesley Titcomb, FSA Director responsible for the Mortgage Sector, also said

 

“As our data shows in these current market conditions more people are struggling to meet their mortgage payments and it is vital that firms treat them fairly. This means paying attention to their individual circumstances and not repossessing their homes when there may be an alternative solution. Repossession has to be the last resort. The FSA’s programme of actions to address the problem areas, includes a closer examination of charges, in particular the circumstances in which these are levied, and whether they are compatible with Treating Customers Fairly”

 

Source: FSA reiterates call for firms to treat customers fairly in current market conditions - FSA/PN/087/2008 - 5August 2008

 

I consider all of the additional charges and fees applied to my account to be unfair as per the Unfair Terms in Consumer Contracts Regulations 1999 because they did not accurately reflect the additional administration work to the mortgage account caused by the fact that I was in arrears. I also contend that by applying these charges and fees to my account my lender has also not met its treating customers fairly (TCF) obligations.

 

I would like to also take this opportunity to draw your attention to the following

 

“ Elsewhere, the present debates about bank charges and the previous action of the OFT on credit-card charges are also relevant. We have already seen some customers raise queries about the level of charges made by lenders when they are in debt. The Citizens Advice report suggests that some lenders’ debt-collection practices are distorted by including steps that involve the customer paying additional fees. The range, complexity and level of these charges may all be matters for consideration. But the central question that will no doubt be raised increasingly with the Ombudsman is whether or not the charges levied are lawful. More generally, as my earlier brief example of the mortgage arrears fee shows, the application of extensive fees for customers already experiencing debt problems may not be fair treatment. Certainly it does not always sit well with the sympathetic and positive treatment of those in hardship.”

 

Source: speech by Tony Boorman, decisions director and principal ombudsman, at the CML's complaints-handling seminar –London, 12 March 2008.

[slgsue]

Suetonius. Thank you for your very in depth reply. I have decided that I want to put everything I can to the FOS in order for them to fully appreciate my claim, therefore I have sent this to the adjudicator dealing with my case. Fingers crossed it will help and feel a bit more confident about things now. I will keep you informed of any updates. thanks again

[tifo]

I have decided that I want to put everything I can to the FOS in order for them to fully appreciate my claim, therefore I have sent this to the adjudicator dealing with my case. Fingers crossed it will help and feel a bit more confident about things now.

 

my experience of the FOS in this case is very different to what you expect.

 

i've used the extract from Sue (thanks for that) and added some bits of my own using UTCCR, FSA rules and some stuff on securitisation.

 

it got passed to an adjudicator who said:

 

1. Mortgage arrears charges are NOT WITHIN THEIR REMIT TO INVESTIGATE, so he'll look at the overall treatment the bank handed out to me.

2. He considers arrears charges to be fair because they're set at a market rate.

3. The charges were considered fair by the test case last year (same principle).

4. He can't look at the mortgage being sold through the shadow banking system.

5. The bank treated me fairly because it's my fault i went into arrears.

6. He won't look at the legal fees or the solicitor's actions.

 

I didn't agree with his findings and asked him to explain:

 

1. How he can call the charges fair without having investigated their actual cost (with a breakdown), especially if he says they're outside his remit.

2. Where it says they can't look at arrears charges (he pointed me to the FSA Handbook).

3. When did the test case look at mortgage account T's and C's or investigate their fees.

4. The solicitor was instructed by the bank as an agent and thus the bank is responsible for their actions.

5. Why does the bank sign its letters with "as administrator". And for whom?

 

And that if the charges are outside their remit then he cannot refer to them in his decision, not a single point, since its not something he can look at and i don't want his personal opinion on these charges. That would make his decision a bit harder to write up since it all consists of arrears charges!

 

I didn't get any answers from him. He's now left the FOS and it will be allocated to another adjudicator.

 

Any advice for me and others taking arrears charges to the FOS and faced with this sort of response?

Edited February 3, 2011 by tifo

[Suetonius]

blows that idea then.... Sorry Tifo.. Thought it might have helped...

 

I'll put the old thinking cap on

[anotherone]

I have indeed gone through all the protocol to get my complaint to this point. Just want to clarify a few things, Ascenden refunded the £115 which was added in October - 6 months after my initial complaint to FOS, within a month (amazingly quick for them!) The complaint is in relation to all the other charges they have added, to which they have offered me a £500 figure, this was refused for obvious reasons. I will not accept anything less than what they have added to my account!!!

I feel that they know the charges are excessive, if they didnt then why try and buy my silence with a silly offer. I just dont want the FOS to see a refund of 1 charge, which was added after the initial complaint to FOS to be seen as my acceptance of full and final settlement. I also believe that Ascenden, being aware of an ongoing complaint with the FOS just did it to shut me up!!! I am adamant that I will fight this to the death, I just hope that eventually they will see what these cowboys are doing and put a stop to it!

....please tell me who did this so i can have a go....which one of you

[tifo]

blows that idea then.... Sorry Tifo.. Thought it might have helped...

 

No, i think you're/we're on the right path, i just got a bad decision. There's no other explanation for it. It's totally irrational. Would appreciate your help on how to argue it with the FOS, though i do what i can.

 

How can they say investigating mortgage arrears charges is not within their remit and yet say they believe the charges are fair? And how can they use the test case on overdraft charges to justify these charges? Its two very different scenarios. One is for requesting an overdraft (so they say) and the other is for failing to pay an agreed instalment, much like credit card charges. With very different T's and C's.

 

If other people have had mortgage arrears charges refunded through the FOS it might help us.

 

And another thing the adjudicator said is that GMAC/Kensington etc were fined for mistreating their customers and not for charging arrears fees and because my mortgage provider hasn't had any fine imposed (a high street bank) then the FSA fines on others are irrelevant as it only applies to a certain bank.

[peterjm]

I would throw throw the MCOB rules at them.

If the Fos cannot enforce FSA rules who can? where do they suggest you go when the FSA themselves have stated you should contact the FOS, and how can they agree that the current charge of £85 for arears management fees reflects the true cost of administration, its not the industry standard but one of the highest if not THE highest charge in the industry.What yardstick and standard are they claiming IS a reasonable figure ? Unless they can quote such a figure their argument falls flat.

If the FOS won't take action ask for their specific reasons in writing and forward this to your MP and tell them you are doing so.

MCOB 12.4 Arrears charges: regulated mortgage contracts1

 

 

MCOB 12.4.1 31/10/2004 (1) A firm must ensure that any regulated mortgage contract that it enters into does not impose, and cannot be used to impose, a charge for arrears on a customer except where that charge is a reasonable estimate of the cost of the additional administration required as a result of the customer being in arrears. 2

(2) Paragraph (1) does not prevent a firm from entering into a regulated mortgage contract with a customer under which the firm may change the rate of interest charged to the customer from a fixed or discounted rate of interest to the firm's standard variable rate if the customer goes into arrears, providing that this standard variable rate is not a rate created especially for customers in arrears.

 

MCOB 12.4.1A 25/06/2010 The imposition of a charge for arrears on a customer who is adhering to an arrangement under which the customer and the firm agree that the customer will make payments of a set amount per month (or other agreed period) on agreed dates may be relied upon as tending to show contravention of MCOB 12.4.1R (1)3

MCOB 12.4.1B 25/06/2010 When a customer has a payment shortfall in respect of a regulated mortgage contract, a firm must ensure that any payments received from the customer are allocated first towards paying off the balance of the shortfall (excluding any interest or charges on that balance).3

MCOB 12.4.2 31/10/2004 A firm may calculate the same level of arrears charges for all regulated mortgage contracts where the customer is in arrears, rather than on the basis of the individual regulated mortgage contract with the particular customer.

MCOB 12.4.3 31/10/2004 Firms are also subject to requirements on information provision and standards relating to arrears and repossessions (see MCOB 13 (Arrears and repossessions)).

 

my experience of the FOS in this case is very different to what you expect.

 

i've used the extract from Sue (thanks for that) and added some bits of my own using UTCCR, FSA rules and some stuff on securitisation.

 

it got passed to an adjudicator who said:

 

1. Mortgage arrears charges are NOT WITHIN THEIR REMIT TO INVESTIGATE, so he'll look at the overall treatment the bank handed out to me.

2. He considers arrears charges to be fair because they're set at a market rate.

3. The charges were considered fair by the test case last year (same principle).

4. He can't look at the mortgage being sold through the shadow banking system.

5. The bank treated me fairly because it's my fault i went into arrears.

6. He won't look at the legal fees or the solicitor's actions.

 

I didn't agree with his findings and asked him to explain:

 

1. How he can call the charges fair without having investigated their actual cost (with a breakdown), especially if he says they're outside his remit.

2. Where it says they can't look at arrears charges (he pointed me to the FSA Handbook).

3. When did the test case look at mortgage account T's and C's or investigate their fees.

4. The solicitor was instructed by the bank as an agent and thus the bank is responsible for their actions.

5. Why does the bank sign its letters with "as administrator". And for whom?

 

And that if the charges are outside their remit then he cannot refer to them in his decision, not a single point, since its not something he can look at and i don't want his personal opinion on these charges. That would make his decision a bit harder to write up since it all consists of arrears charges!

 

I didn't get any answers from him. He's now left the FOS and it will be allocated to another adjudicator.

 

Any advice for me and others taking arrears charges to the FOS and faced with this sort of response?

[Suetonius]

Ok just for starters....

 

And another thing the adjudicator said is that GMAC/Kensington etc were fined for mistreating their customers and not for charging arrears fees and because my mortgage provider hasn't had any fine imposed (a high street bank) then the FSA fines on others are irrelevant as it only applies to a certain bank.

 

http://www.fsa.gov.uk/pubs/final/gmac_rfc.pdf

 

Arrears charges

4.16.GMAC imposed certain charges related to activities carried out whilst the customer was in arrears, in circumstances that resulted in the unfair treatment of customers.

4.17.These unfair charges were:

(1)charges for non-payment of the monthly mortgage payment by direct debit, when the account was in arrears and no monthly payment was being made;

(2)calculation and imposition of the Early Repayment Charge on mortgage balances which included arrears fees and charges within that balance; and

(3)the proportion of the solicitors’ instruction fee that exceeded the actual cost.

 

4.18. The above charges were unfair because they did not accurately reflect the additional administration work to the mortgage account caused by the fact that the customer was in arrears.

 

5.5. In addition, GMAC did not treat its customers fairly as a result of applying certain charges and fees to customers’ accounts that were unfair as they did not accurately reflect the additional cost of administering an account in arrears in breach of MCOB 12.4.1R and 13.3.1 R.

[Suetonius]

As per the link in my original post for the final notice for GMAC, I would send a copy to the Adjudicator. You could then call him/her directly afterwards and read through it with them so that they can't deny what it actually has to say...

[Suetonius]

1. How he can call the charges fair without having investigated their actual cost (with a breakdown), especially if he says they're outside his remit.

2. Where it says they can't look at arrears charges (he pointed me to the FSA Handbook).

 

http://fsahandbook.info/FSA/html/handbook/MCOB/12

http://fsahandbook.info/FSA/html/handbook/MCOB/13

 

Ask the adjudicator (when you get a replacement) about these sections of the FSA Handbook as posted by Peter