Reclaiming mortgage arrear fees

edited 30 November -1 at 1:00AM in Reclaiming Mortgage Fees, Council Tax, etc
11 replies 2.2K views
100mel100mel Forumite
124 Posts
I have an amount of mortgage late payment fees charged by Santander to my account - approx £600 - as they repeatedly tried to take payments from my account on the wrong dates via direct debit I had to cancel direct debit and pay manu ally

I have complained to the FOS about these charges and got nowhere. Can I reclaim through the courts whilst the mortgage is active or is it necessary to wait until the mortgage is moved or redeemed?
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  • edited 22 January 2011 at 5:33PM
    dunstonhdunstonh Forumite
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    edited 22 January 2011 at 5:33PM
    Can I reclaim through the courts whilst the mortgage is active or is it necessary to wait until the mortgage is moved or redeemed?

    If the FOS has ruled against you then you must have a pretty weak case. The FOS are more consumer friendly than the courts and if Santander had done wrong then they would have told Santander to correct them. FOS rejecting the complaint suggests no wrong doing.

    So, if you take it to court, what grounds would you be using in court to say the money belongs to you?
  • ~Brock~~Brock~ Forumite
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    The UK court system is there to uphold the UK's legal framework.

    If you commence a court case against someone you need to be pretty clear about exactly what law, statute or other legal issue your opponent is in breach of.

    The tired old arguments traditionally wheeled out by the reactionists that populate the likes of the Consumer Action Group dont generally wash anymore, which means that you need to have a pretty strong argument based upon your own bespoke circumstances.

    Based upon the fact that you are the litigant, and therefore will bear the initial costs with absolutely no guarantee of success, you may be better advised to avoid throwing good money after bad......
  • dunstonh wrote: »
    If the FOS has ruled against you then you must have a pretty weak case. The FOS are more consumer friendly than the courts and if Santander had done wrong then they would have told Santander to correct them. FOS rejecting the complaint suggests no wrong doing.

    So, if you take it to court, what grounds would you be using in court to say the money belongs to you?

    I believe that the FOS are completely useless and I would like some proof from dunstonh, rather than his/her self righteous opinion, that the FOS are more consumer friendly than the courts.

    I have a claim against Santander in court at present, their solicitors DLA Piper seem overly keen to settle. I'm guessing DLA Piper can not justify Santander's charges and therefore cannot construct a fully pleaded defence to my particulars of claim.

    I would respectfully suggest to the OP that such "grounds for using in court to say it belongs to them" would be that the charges were/are unfair and excessive/disproportionate to Santander's actual/true costs, contrary to UTCCR Regs 5,6 and 8. If Santander are willing to prove otherwise I withdraw this suggestion. (They won't and they can't).

    I would also suggest that an unfair relationship may exist or may have existed between OP and Santander, contrary to CCA S140 a and b in the reliance of Santander on a term or condition allowing them to impose such charges, and of Santander's subsequent enforcement of said term also being unfair.

    I would put it to the Op that Santander may well have misrepresented the true nature of their charges to the OP, and that Santander may well have failed to fulfill their obligations contained in the Mortgage Conduct Of Business Sourcebook (MCOBS), by failing to communicate with the OP in a way that is fair, clear and not misleading.

    Whilst not being privvy to the OP's personal and private dealings with Santander, I believe it is both fair and reasonable to assume that if the Op was indeed being charged these unlawful monthly arrears charges by Santander, that Santander may well have been failing to supply the OP with the documentation that MCOBS requires them to provide.

    From my own personal claim I have discovered Santander's failings against their obligations contained within the FSA MCOBS. I quote from my own claim for the benefit of the OP.....


    The Defendants (Santander) 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. 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.

      Therefore I would suggest that the OP has many avenues available to him/herself to bring a claim against Santander.

      I am quite disgusted by the comments from long standing posters on MSE advising the OP from taking any further action, and abiding by the FOS's incorrect and toothless decision.

      I believe that some posters on MSE believe that those consumers who dare to try and reclaim unlawful charges, that major financial instutions will not justify actual costings analyses of such charges in a court of law, are to be derided because they found themselves in financial hardship .

      I have yet to see Martin Lewis cast judgment over people who struggle financially. In fact I see the opposite, he seeks to champion their cause.

      In summary, from my own experience, take Santander to court. DLA Piper will try and intimidate you to settle, but if they are confident of defending then why do they offer you money?

      Again to the OP, I don't know your circumstances. I'm still mortgaged with Santander, and I've got them in court.

      I feel sorry for posters who feel the need to post that you have little chance of success. My own experience and my current litigation suggests that you have a very good chance of success.

      I wish the OP the best of luck.......

      but he/she won't need it.;)
    1. ~Brock~ wrote: »
      The UK court system is there to uphold the UK's legal framework.

      If you commence a court case against someone you need to be pretty clear about exactly what law, statute or other legal issue your opponent is in breach of.

      The tired old arguments traditionally wheeled out by the reactionists that populate the likes of the Consumer Action Group dont generally wash anymore, which means that you need to have a pretty strong argument based upon your own bespoke circumstances.

      Based upon the fact that you are the litigant, and therefore will bear the initial costs with absolutely no guarantee of success, you may be better advised to avoid throwing good money after bad......

      Again...............As above;)
    2. tifotifo Forumite
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      dunstonh wrote: »
      If the FOS has ruled against you then you must have a pretty weak case.

      For my own case against the bank and through the FOS, I was told they cannot investigate arrears charges as this is not within their remit but that they consider them fair because its a market rate.

      I've asked the FOS not to refer to arrears charges in their decision if its not within their remit to investigate. I really don't understand their decision. On the one hand they can't look at these charges but on the other they consider them fair and the bank has treated me fairly by applying these when i was in arrears, which was my own fault.

      This goes against what the FSA say but one will not comment on the other.

      I've asked the FOS where in their rules and guidelines it mentions arrears charges and they've pointed me to the FSA Handbook.

      On the issue of the mortgage having been sold, its not something they will comment on and the bank won't tell me why the sign their letters with "as administrator".
    3. tifotifo Forumite
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      100mel wrote: »
      I have complained to the FOS about these charges and got nowhere.

      Could you PM me a scan of the FOS letter, minus personal info?

      For my own case, i'm told arrears charges are outside their remit to investigate but they consider them fair. I've told the adjudicator that his service does investigate them and he's insisting they don't.
    4. tifotifo Forumite
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      HughJarse wrote: »
      I'm still mortgaged with Santander, and I've got them in court.

      I may end up in court. Could you let me have some info, by PM?

      I know you've posted some good stuff on my threads which is useful.
    5. edited 5 February 2011 at 10:33PM
      HughJarse_2HughJarse_2 Forumite
      13 Posts
      edited 5 February 2011 at 10:33PM
      tifo wrote: »
      I may end up in court. Could you let me have some info, by PM?

      I know you've posted some good stuff on my threads which is useful.

      PM sent tifo,

      Are you the same tifo on the other site ([EMAIL="C@g"][email protected][/EMAIL]), that provides useful advice from people who actually want to help and not look down their noses at people?

      Santander really want to pay you off when you file a claim at Court;)
    6. ILWILW
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      HughJarse wrote: »
      I believe that the FOS are completely useless and I would like some proof from dunstonh, rather than his/her self righteous opinion, that the FOS are more consumer friendly than the courts.

      I have a claim against Santander in court at present, their solicitors DLA Piper seem overly keen to settle. I'm guessing DLA Piper can not justify Santander's charges and therefore cannot construct a fully pleaded defence to my particulars of claim.

      I would respectfully suggest to the OP that such "grounds for using in court to say it belongs to them" would be that the charges were/are unfair and excessive/disproportionate to Santander's actual/true costs, contrary to UTCCR Regs 5,6 and 8. If Santander are willing to prove otherwise I withdraw this suggestion. (They won't and they can't).

      I would also suggest that an unfair relationship may exist or may have existed between OP and Santander, contrary to CCA S140 a and b in the reliance of Santander on a term or condition allowing them to impose such charges, and of Santander's subsequent enforcement of said term also being unfair.

      I would put it to the Op that Santander may well have misrepresented the true nature of their charges to the OP, and that Santander may well have failed to fulfill their obligations contained in the Mortgage Conduct Of Business Sourcebook (MCOBS), by failing to communicate with the OP in a way that is fair, clear and not misleading.

      Whilst not being privvy to the OP's personal and private dealings with Santander, I believe it is both fair and reasonable to assume that if the Op was indeed being charged these unlawful monthly arrears charges by Santander, that Santander may well have been failing to supply the OP with the documentation that MCOBS requires them to provide.

      From my own personal claim I have discovered Santander's failings against their obligations contained within the FSA MCOBS. I quote from my own claim for the benefit of the OP.....


      The Defendants (Santander) 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. 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.

        Therefore I would suggest that the OP has many avenues available to him/herself to bring a claim against Santander.

        I am quite disgusted by the comments from long standing posters on MSE advising the OP from taking any further action, and abiding by the FOS's incorrect and toothless decision.

        I believe that some posters on MSE believe that those consumers who dare to try and reclaim unlawful charges, that major financial instutions will not justify actual costings analyses of such charges in a court of law, are to be derided because they found themselves in financial hardship .

        I have yet to see Martin Lewis cast judgment over people who struggle financially. In fact I see the opposite, he seeks to champion their cause.

        In summary, from my own experience, take Santander to court. DLA Piper will try and intimidate you to settle, but if they are confident of defending then why do they offer you money?

        Again to the OP, I don't know your circumstances. I'm still mortgaged with Santander, and I've got them in court.

        I feel sorry for posters who feel the need to post that you have little chance of success. My own experience and my current litigation suggests that you have a very good chance of success.

        I wish the OP the best of luck.......

        but he/she won't need it.;)

        Very nice speech, but would you be prepared to indemnify the OP against any costs that may be awarded against them if they lose the case?
      1. tifotifo Forumite
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        ILW wrote: »
        Very nice speech, but would you be prepared to indemnify the OP against any costs that may be awarded against them if they lose the case?

        I doubt the bank would get any costs for charging unfair fees and then refunding them or being ordered to repay them. Such a term may be unfair under UTCCR as it is one sided.
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