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

tifo

dunstonh wrote: »

It is not for them to make that decision.

a personal point of view isnt one that mattters.

That's exactly what i say.

1. The FOS shouldn't give an opinion on something not within their remit, i.e. arrears charges, whether fair or not.

2. Personal views do not matter.

Ultimately, it is the bank who would need to provide the breakdown when challenged that the charges do not reflect admin costs. Whether that is at the FSA, the FOS or the courts. Without this information i cannot prove that they're not fair and neither can the bank prove that they're fair.

It seems for the moment i am not getting anywhere with this.

ILW

If the bank decided to get their CEO to look into your account, would it then be OK for them to charge you thousands on the basis that he earns over £1 million PA?

tifo

ILW wrote: »

If the bank decided to get their CEO to look into your account, would it then be OK for them to charge you thousands on the basis that he earns over £1 million PA?

What a stupid question which has nothing to do with the thread or the FOS.

But to answer your question, if their CEO wants to look into my arrears charges then they're free to send me a bill if they want. Of course, as i'm not the only one complaining about these they'd have to show that this is their normal practise. And if its through the FOS they can't charge.

You're lucky you've never been charged or choose to pay them.

If you've got nothing useful to contribute to this thread then please don't post on it. Snide comments are not needed.

ILW

tifo wrote: »

What a stupid question which has nothing to do with the thread or the FOS.

But to answer your question, if their CEO wants to look into my arrears charges then they're free to send me a bill if they want. Of course, as i'm not the only one complaining about these they'd have to show that this is their normal practise. And if its through the FOS they can't charge.

You're lucky you've never been charged or choose to pay them.

If you've got nothing useful to contribute to this thread then please don't post on it. Snide comments are not needed.

Not being snide, but you stated that you thought they should send you documentation to prove that it cost them £35.00 to process your issue. I just wondered what would happen if they did this and found that it cost a lot more, would you then accept a higher charge as being fair?

tifo

ILW wrote: »

Not being snide, but you stated that you thought they should send you documentation to prove that it cost them £35.00 to process your issue. I just wondered what would happen if they did this and found that it cost a lot more, would you then accept a higher charge as being fair?

Yep, i'd accept their breakdown, as might the FOS and court. Do you think they'll provide it or whether i am entitled to it or not?

HughJarse_2

Hi tifo,

I see you are getting some snotty self-righteous replies to your questions....

Some people think that if you dare to pay late, or not pay at all, that you should be put in the stocks or publicly stoned.;)

The FOS are a bunch of self-righteous muppets, and you are far better going to court. However you must keep your claims (and interest) under the £5000 small claims limit. You may need to seperate elements of your claim.

Santander will of course tell you that their charges are fair and reasonable. Will they prove this to the courts?

I know of no case successfully defended by Santander. They always settle before disclosing their actual costs for dealing with accounts whilst in arrears.

Whilst you have been in arrears have Santander acted within FSA guidelines? The following is an extract from my own claim against Santander for breach of their statutory duty. Does this apply to your dealings with Santander?


"The Defendants are regulated by the Financial Services Authority under The Financial Services And Markets Act 2000 and are subject to obligations contained in the FSA Conduct Of Business Sourcebook. Under Regulation 4.2 of the Sourcebook the Defendants are required to ensure that they communicate with their clients fairly, clearly and in a way which is not misleading.


Under Regulation 12.4.1R of the Mortgage Conduct Of Business Sourcebook the Defendants are required to ensure that any arrears charges they apply should only cover their actual costs of dealing with an account whilst in arrears. The Defendants have failed to comply with their obligations.



Under Regulation 13.4.1R of the MCOB Sourcebook the Defendants are required to provide the Claimant with the following in a durable medium;

1. The current moneymadeclear information sheet “Just the facts about problems paying your mortgage.
2. A list of the due payments either missed or only paid in part.
3. The total sum of the payment shortfall.
4. The charges incurred as a result of the payment shortfall.
5. The total outstanding debt, excluding charges that may be applied on redemption and
6. An indication of the nature (and where possible the level) of charges the customer is likely to incur unless the payment shortfall is cleared .
   

Under Regulation 13.4.4R of the MCOB Sourcebook the Defendants are required to provide the Claimant with the following in a durable medium;

1. 1. Provide a statement, in a durable medium, of the payments due, the actual payment shortfall, any charges incurred and the total outstanding debt excluding any charges that may be applied on redemption, together with information as to the consequenses, including repossession, if the payment shortfall is not cleared.
      

Under Regulation 13.5.1R of the MCOB Sourcebook the Defendants are required to provide the Claimant with the following in a durable medium;
Where an account is in arrears and the payment shortfall is attracting charges, a firm must provide the customer with a regular written statement (at least once a quarter) of the payments due, the actual payment shortfall, the charges included and the debt.


The Defendants have failed to comply with their obligations."

Santander have failed to supply me with all of the above, that serves to bolster my claim against them. If I let them keep digging, they will dig themselves a deeper hole.:D

Have they failed to supply you with the same information regarding your mortgage account?;)

I understand that court is daunting and some people prefer the FOS. Unfortunately the FOS are useless and incompetant. Court isn't that bad.

Bank charges were lost by the OFT on a very minor point of law. If the OFT had presented their case correctly they would have succeeded.

If Santander were to successsfully defend a claim by yourself, they would need to demonstrate to the court that their charges are fair, and represent their actual costs.

Santander instruct DLA Piper (whom I expect to counterclaim for £5k for Santander's defence, and then settle before a hearing), but always seem to pay up.

It's up to you, but I really dislike the attitudes that "if you paid on time", "why don't you pay your mortgage", "they can sue you for their legal fees" are really not in the spirit that Martin envisaged when he started this site.

I wish you the best of luck against these scumbags.

Hugh

tifo

HughJarse wrote: »

Have they failed to supply you with the same information regarding your mortgage account?;)

Thanks for the reply.

Santander haven't supplied me with the info you refer to and all i got are letters from their solicitors asking to pay up, until questioned the arrears charges and their legal fees and referred it to the FOS. Since then, i haven't had any letters from the bank/solicitors and nothing from the FOS, though i've asked to see what the bank is sending to them (subject to confidentiality of course).

The FSA say one thing and the FOS another. The FOS haven't shown me where it says in their guidelines that they can't look at arrears fees though they point to the FSA Handbook as guiding them. But this says what i am quoting from so i don't really understand the FOS position.

I've asked the FOS not to comment on arrears fees if it's not within their remit to investigate which has made them rethink a bit.It probably won't make much difference but i can then ignore that part (as can the bank and court). I'm sure i'm correct in this.

Thanks.

tifo

Adjudicator 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.
7. The FSA fines and report on GMAC/Kensington etc had no impact on my complaint as those companies were fined for mistreating customers and not for charging an arrears fee, and my bank (major high street bank) has not had any fines imposed or been investigated.

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?

dunstonh

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.

Simple answer to that one which you continue to ignore. Until a court says otherwise, the fees are fair.

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

the FOS has no remit to rule on commercial decisions. The FSA has no rules on how much charges can be unless stated otherwise.

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

The test case made a ruling on charges that could be applied across other areas.

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

The FOS do not cover solicitors. If you have issues there then you should go to the Law Society.

7. The FSA fines and report on GMAC/Kensington etc had no impact on my complaint as those companies were fined for mistreating customers and not for charging an arrears fee, and my bank (major high street bank) has not had any fines imposed or been investigated.

That is the correct response. Just because one or more company has issues, does not mean all do. Although the rulings on those complaints were not about the fee being charged but the work being done with it.

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

The FOS have responded just as you would expect them to. What you seem to want would be better suited by taking legal action and going to court. You probably wont be successful and it will cost you but you will at least get answers to your questions and have put it in front of a judge that can make a ruling.

tifo

dunstonh wrote: »

the FOS has no remit to rule on commercial decisions.

The FSA has no rules on how much charges can be unless stated otherwise.

The FOS should then stay clear of calling these charges fair if it has no remit on them. By calling them fair they're making a judgement.

FSA has 12.4.1R which says arrears charges should reflect admin costs. The 'R' means its a rule and not guidance. It follows then that only a full breakdown of the charges would prove it does not make a profit on costs.

'Unfair terms' legislation states any charges should not be disproportionate and any term allowing this will be deemed as unfair and thus unenforceable.

Look them up, you know where they are.