are Santander mortgage arrears charges and legal fees fair? FOS say they are!

tifo

On another note, I have asked the bank for Terms and Conditions of the mortgage account which they've sent me (I still have to look keenly through them) but said they don't have a copy of the application form (which they should keep for 6 years after the account is closed under anti money laundering laws).

They also refuse to tell me if the mortgage account was sold at any time.

Where do i stand with this?

dunstonh

They don't have a copy of the application form (which they should keep for 6 years after the account is closed under anti money laundering laws).

There is no legal requirement for them to keep the application and anti-money laundering guidelines have no such stipulation. Obviously there is common sense in keeping it and nowadays you expect everything to be kept indefinitely. However, older cases do often find the documentation has been destroyed.

They also refuse to tell me if the mortgage account was sold at any time.

what difference would it make?

Where do i stand with this?

Nowhere different.

tifo

i was told that the lender should keep a copy of the application form for at least 5 years after the last of the transaction on the mortgage i.e. after the mortgage account is closed, under Section 6 of the Money Laundering Regulations 2003.

tifo

the FOS seems more keen on investigating how the account was run (prob to justify the arrears charges the bank applied and which they say are fair). I'm being asked many questions and to provide documents, some of which go back many years. Some of the questions are irrelevant, such as income details and audited accounts, court documents and to explain why and how the account was run the way it was (which resulted in the charges).

also, they're asking me to explain securitisation to them and why i think the bank may not be in control of everything.

any advice?

dunstonh

i was told that the lender should keep a copy of the application form for at least 5 years after the last of the transaction on the mortgage i.e. after the mortgage account is closed, under Section 6 of the Money Laundering Regulations 2003.

Never heard of that. Its up to the lender how long they keep documents for. The longer the better nowadays as so many people seem to want to complain years after the event. However, the money laundering regs of 2003 were revoked by the Money laundering regs of 2007. The 5 year rule didnt apply to the application. It applied to verification of ID records.

tifo

the FOS say the charges are fair, because they reflect market rates, without obtaining a breakdown or following the law on penalties and unfair terms. They say its outside their remit to investigate such charges but then have commented that they are fair. They say they follow the FSA handbook as guidance but then have not enforced MCOB 12.4.1R (which says arrears charges must reflect admin costs). They say the bank is entitled to charge me the fee because of the conduct of the account (i didn't pay my instalment on time).

the FSA say i need to get a breakdown from the bank (who won't give this to me) and the FOS won't ask them.

dunstonh

the FOS say the charges are fair, because they reflect market rates, without obtaining a breakdown or following the law on penalties and unfair terms.

That response seems reasonable as that is the position.

They say its outside their remit to investigate such charges but then have commented that they are fair.

Again, that seems fair as it is not within their remit and no-one has persuaded a court that they are unfair and the FSA has not said they are unfair. So, what you may feel is largely irrelevant.

They say they follow the FSA handbook as guidance but then have not enforced MCOB 12.4.1R (which says arrears charges must reflect admin costs).

That is correct and most lenders wouldnt have a problem showing that they reflect that.

They say the bank is entitled to charge me the fee because of the conduct of the account (i didn't pay my instalment on time).

Again, that is correct.

the FSA say i need to get a breakdown from the bank (who won't give this to me) and the FOS won't ask them.

legally they dont have to give you a breakdown. So, if there is little you can do about it if you want one.

tifo

dunstonh wrote: »

That is correct and most lenders wouldnt have a problem showing that they reflect that.

I'm asking for this but they won't provide it and the FOS won't ask them. The FSA say i should ask for this breakdown from the bank or through the FOS.

I could ask at the court stage when they initiate repossession proceedings.

dunstonh wrote: »

Again, that seems fair as it is not within their remit

If it's not in their remit to investigate then they shouldn't give an opinion (and that's what it really is, only an opinion not based on any facts).

dunstonh wrote: »

legally they dont have to give you a breakdown. So, if there is little you can do about it if you want one

i didn't know this but i guess i'll find out soon enough. I'm sure under s.140(B)(9) of the CCA 1974 banks have to prove they're acting fairly and under MCOB 12.4.1R they'd have to show the same. Even s.5 of UTCCRs might apply.

tifo

some people can shout that these arrears charges are unfair and others can shout that they're fair ..... but it comes down to the fact that until the bank provides a breakdown of how they calculate their arrears charges/fees no-one can decide whether they're fair or not, not the FSA, FOS, the court or myself or any other poster. We just don't know.

dunstonh

If it's not in their remit to investigate then they shouldn't give an opinion (and that's what it really is, only an opinion not based on any facts).

It is not for them to make that decision. They can only go by court rulings and FSA rules and there have been none that say charges are not fair. so, in that respect they are fair.

some people can shout that these arrears charges are unfair and others can shout that they're fair ..... but it comes down to the fact that until the bank provides a breakdown of how they calculate their arrears charges/fees no-one can decide whether they're fair or not, not the FSA, FOS, the court or myself or any other poster. We just don't know.

They are fair until the courts or the FSA say they are not. Certainly many people have an opinion on whether they are fair from a personal point of view but a personal point of view isnt one that mattters.