Is it possible to argue hardship retrospectively?

davidgmmafan

I ask this because it is very relevent in my brothers case. In simple terms his authorized OD of £1000 went to £4000 because of charges, charges, and charges in a period when he was not working. I did not look at hardship when I first began the reclaiming process because he had found another job.

He just missed the instant refund period, which I partially blame myself for, and clearly after the conclusion of the test case the banks have even removed the meagre goodwill offers they made from the table.

Is there any point in my going through the account IN THE RELEVENT PERIOD to work out how much of the balance of the charges were incurred when his sole income was JSA (which is what £40 per week - almost the same as one unpaid item charge, which is what started the whole thing).

As I say he IS working now and has been for sometime, he cannot change his mortgage provider, which would save vast sums, becauce of this debt hanging over him. I would describe his situation now as one of the working poor. He can afford essentials, but has precious little left.

I have alluded to hardship in recent letters to Natwest, but to be honest I doubt, from the response, they even bothered to look at the account as it is closed and has been for sometime.

I understand for hardship you need to fill in a statement of affairs but the situation NOW is totally different to THEN which is when the damage was done.

He was behind on his mortgage to the extent that if he'd missed one more payment the house would've been repossessed, and had massive arrears on utility bills and council tax.

I am confused because I've read the guidance from the FOS, and the lending code stuff nattie, sorry natweststaffmember, regularly posts; along with the relevent info on the new reclaim bank charges guide. In the guide it sounds very clear cut like the FOS can look at loads of stuff, but this doesn't seem to be supported by the other two sources.

davidgmmafan

I would add that the only reson the charges stopped was because they essentially gave up on getting the money and closed the account, but for that they would have continued to rack up.

natweststaffmember

The issue is how the bank dealt with the claim at that time. Furthermore, did he approach his priority creditors at the time and what was their response?
I find the arguments on retrospective claims difficult ones but not impossible if the lender did nothing or whether they offered repayment plans since they have at least done something rather than nothing.

davidgmmafan

They did nothing, well apart from pass it to DCA's later that badgered with non-stop telephone calls saying things of dubious legal standing. When he spoke to the mortgage centre, as you are supposed to do, because he coudln't make the next payment they said you'll have to phone back in three months there's nothing we can do until you are three months in arrears.

I have to attempt this anyway, as the current situation is totally unacceptable, thier responses amount to saying we have followed the ridiculous rules we created and therefore that is fair.

The only reason this wasn't pursued at the time is there was optimism on the legal route and I did not know anything about this option. On thier new charges they merely say the change was a part of ongoing review - we're supposed to believe it had no conection to the campaign and OFT involvement.

One final point there is a court claim, stayed till November 2011, no contact from bank on this. The guide suggests this would have to be withdrawn but I don't see why. The court claim would need to be amended and concerns legal issues, the hardship complaint is quite different and a seperate issue.

natweststaffmember

davidgmmafan wrote: »

They did nothing, well apart from pass it to DCA's later that badgered with non-stop telephone calls saying things of dubious legal standing. When he spoke to the mortgage centre, as you are supposed to do, because he coudln't make the next payment they said you'll have to phone back in three months there's nothing we can do until you are three months in arrears.
Current account with the same mortgage provider? hmmmm interesting.....
I have to attempt this anyway, as the current situation is totally unacceptable, thier responses amount to saying we have followed the ridiculous rules we created and therefore that is fair.

The only reason this wasn't pursued at the time is there was optimism on the legal route and I did not know anything about this option. On thier new charges they merely say the change was a part of ongoing review - we're supposed to believe it had no conection to the campaign and OFT involvement.

One final point there is a court claim, stayed till November 2011, no contact from bank on this. The guide suggests this would have to be withdrawn but I don't see why. The court claim would need to be amended and concerns legal issues, the hardship complaint is quite different and a seperate issue.

Amending a claim comes at a cost and at the moment, I would let sleeping dogs lie(I am not saying drop the claim but there are cases going through the court process, the obvious one being in Scotland via GLC).

davidgmmafan

Totally with you about amended the claim, as there's been no contact from them, and I understand there are some cases coming up in June under new arguments I will wait and see what happens.

However I don't see why a stayed claim, which concerns legality, would preclude a complaint to the Ombudsmen on grounds of hardship - this is a policy or human argument.

If I'm going to do this I'm going to do it right so I think I ought to start by getting info on arrears for priority stuff like council tax and utility bills. I am also going to ask the bank for details of any charges on the mortgage, and how many missed payments there were.

I am unsure if an unpaid DD to the mortgage would get charged twice? I recall seeing a letter charging for a missed mortage payment but this was after the DD was cancelled. Would they charge once to the current acccount and once to the mortgage? Or is the mortgage fee only where they haven't had thier pound of flesh on the current account?

I sense from thier lack of acknowledgement to references to being on JSA that they are concerned that they could be let down by thier lack of action at the time.

natweststaffmember

davidgmmafan wrote: »

Totally with you about amended the claim, as there's been no contact from them, and I understand there are some cases coming up in June under new arguments I will wait and see what happens.

However I don't see why a stayed claim, which concerns legality, would preclude a complaint to the Ombudsmen on grounds of hardship - this is a policy or human argument.
There is nothing that stops anyone with a stayed claim going back to the bank but they have to wait the 8 weeks for a full response before going to the FOS. Any amount offered would in the end be reduced from the overall claim if or once it is proceeded with.
If I'm going to do this I'm going to do it right so I think I ought to start by getting info on arrears for priority stuff like council tax and utility bills. I am also going to ask the bank for details of any charges on the mortgage, and how many missed payments there were.

I am unsure if an unpaid DD to the mortgage would get charged twice? I recall seeing a letter charging for a missed mortage payment but this was after the DD was cancelled. Would they charge once to the current acccount and once to the mortgage? Or is the mortgage fee only where they haven't had thier pound of flesh on the current account?

I sense from thier lack of acknowledgement to references to being on JSA that they are concerned that they could be let down by thier lack of action at the time.

Their lack of action would have to be proven.

davidgmmafan

"Their lack of action would have to be proven."

This is what I always struggle with, as you note mortgage and current account with the same bank only credit £80 a fortnight or whatever JSA was then.

One returned DD charge is about the same as one weeks income, its not rocket science to work out that that person can't therefore pay council tax, mortgage, gas elec etc. Really infuriates me.

Anyhow enough of that, I'll see what info they have and what I need. Any kind of reduction would be welcome.

natweststaffmember

davidgmmafan wrote: »

"Their lack of action would have to be proven."

This is what I always struggle with, as you note mortgage and current account with the same bank only credit £80 a fortnight or whatever JSA was then.

One returned DD charge is about the same as one weeks income, its not rocket science to work out that that person can't therefore pay council tax, mortgage, gas elec etc. Really infuriates me.

Anyhow enough of that, I'll see what info they have and what I need. Any kind of reduction would be welcome.

Did the bank send him a letter to contact them and did he?