Santander are now refunding interest payments on Cahoot flexible loan's

Cell

Well cynical or not mine hasn't yet been delivered:rotfl:

halifax71

[FONT=&quot]What does this clause actually say? For example in my case it reads: - [/FONT]

[FONT=&quot]"We may from time to time vary our interest rate. We may increase or decrease our interest rate to reflect a change which has occurred, or which we reasonably expect to occur in interest rates generally, or to ensure that our business is carried on prudently, efficiently and competitively. The interest on your account will not in any twelve month period, vary by more than twice the variation in the Finance House Base Rate published by the Finance and Leasing Association during the same period. If for any reason, the Financing and Leasing Association ceases to publish the Finance House Base Rate we may refer the variation in our interest rates to any other Base Rate which in our reasonable opinion best matches that rate.[/FONT][FONT=&quot]”[/FONT]

[FONT=&quot]In practice this meant that all base rate increases were applied but base rate decreases were not. [/FONT]

[FONT=&quot]Some stuff that might be useful[/FONT] when linked with my previous post about using the Unfair Relationship Test where the burden of proof will fall on Santander if you say their actions are unfair.

· [FONT=&quot]Unfair Terms in Consumer Contract Regulations 1999 – Note that Variation clauses are not out of scope / are not a core term: - Some extracts that I've used[/FONT]

[FONT=&quot]A term which merely says that variations will only be 'reasonable' or will only be made 'reasonably', is unlikely to be any fairer than one which contains no such qualification, unless there can be little doubt in a reasonable consumer's mind as to what sort of variation, broadly speaking, such wording allows, and in what circumstances. Where the criteria of reasonableness are vague, or clearly meant to include the best commercial interests of the business, there will be scope for the supplier to change the bargain unfairly to the detriment of consumers, simply on the basis that he needs to protect his profit margins[/FONT]

[FONT=&quot]When a contract is made, obligations are accepted in return for benefits. If one party can unilaterally change agreed terms, to its advantage, the balance of the transaction is lost. So a term is likely to be unfair if it gives the supplier the right at its discretion to force the consumer to accept changes to the bargain. A right to change any term in the contract, or to vary its core terms – the price or description of the product – is particularly open to objection.[/FONT]
[FONT=&quot]Fairness, and the law, require that consumers get what they agreed to buy. Goods, in particular, must be of the agreed description and purpose, not just of 'equivalent quality'. A right to raise prices at discretion, where consumers are locked into the contract, is also highly suspect.[/FONT]

A standard term is unfair if it creates a significant imbalance in the parties' rights and obligations under the contract, to the detriment of the consumer, contrary to the requirement of good faith

The requirement of 'good' faith embodies a general 'principle of fair and open dealing'. It means that terms should be expressed fully, clearly and legibly and that terms that might disadvantage the consumer should be given appropriate prominence.

However transparency is not enough on its own, as good faith relates to the substance of terms as well as the way they are expressed and used. It requires a supplier not to take advantage of consumers' weaker bargaining position, or lack of experience, in deciding what their rights and obligations shall be. Contracts should be drawn up in a way that respects consumers' legitimate interests. In assessing fairness, we take note of how a term could be used. A term is open to challenge if it is drafted so widely that it could cause consumer detriment.

Any purely discretionary right to set or vary a price after the consumer has become bound to pay is obviously objectionable. That applies particularly to terms allowing the supplier to charge a price on delivery of goods that is not what was quoted to the consumer when the order was placed. It also applies to rights to increase payments under continuing contracts where consumers are 'captive' – that is, they have no penalty-free right to cancel

Any kind of variation clause may in principle be fair if consumers are free to escape its effects by ending the contract. To be genuinely free to cancel, they must not be left worse off for having entered the contract, whether by experiencing financial loss (for example, forfeiture of a prepayment) or serious inconvenience, or any other adverse consequences.

An explicit right to demand payment of unspecified amounts at the supplier's discretion – for example, by way of security deposit – is particularly open to challenge. But the same objections may apply if terms are merely unclear about what will be payable. Their purpose may not, in fact, be to allow the supplier to make unexpected or excessive demands for money, but the focus of the Regulations is on the effect that terms can have, not just on the intentions behind them

[FONT=&quot]A seller or supplier shall ensure that any written term of a contract is expressed in plain, intelligible language. (2) If there is doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail …[/FONT]

[FONT=&quot]Transparency is also fundamental to fairness. Regulation 7 says that standard terms must use plain and intelligible language. Taking account of the Directive the Regulations implement, this needs to be seen as part of a wider requirement of putting the consumer into a position where he can make an informed choice. Thus even though a term would be clear to a lawyer, we will probably conclude that it has the potential for unfairness if it is likely to be unintelligible to consumers and thereby cause detriment, or if it is misleading (in which case its use may also be actionable as an unfair commercial practice).[/FONT]

· Conta Proferentum - http://en.wikipedia.org/wiki/Contra_proferentem. Ambiguous terms will be construes against the party that imposed it.

rubble2004

Itoo have now received the "individual assessment * rejection letter from fos.[2 weeks later than their 28 day timeline] Never mind the 9 minth wait for a NO response.They have given me until January 11th to respond.
Any help in how to respond appreciated

VanGoghsEarhere

rubble2004 wrote: »

Itoo have now received the "individual assessment * rejection letter from fos.[2 weeks later than their 28 day timeline] Never mind the 9 minth wait for a NO response.They have given me until January 11th to respond.
Any help in how to respond appreciated

Without knowing the content of your complaint & response letter, I'd suggest that you ask for clarification, that is, if you mentioned the T&Cs and the FOS has sided with Santander mention the rights highlighted in the post above (#1623 - Halifax71) and any relevant court decisions that you can find which found in favour of the customer. I'd also say you want this clarification before commencing legal proceedings (regardless of whether you do or not). As the banks (generally) were withdrawing credit from consumers you could argue that Santander were abusing their position in the knowledge that a) they did not have to offer you a fixed term loan at a more favourable rate despite offering such a 'facility' in their correspondence IRO of the product changes, b) the chances of getting credit from another institution were considerably lower given the credit crunch, and c) making loan applications would leave a footprint on your credit file, thereby lowering your chances of securing credit elsewhere. Also in each of the FOS responses I've seen posted here they have made no mention of the fact that Santander state an APR on the statement, which (in my case) does not reflect the actual APR being charged. If you're considering taking this to the FSA in the event that your appeal fails, I'd also make a point of mentioning that you will be forwarding the FOS findings in your complaint to them. Did FOS provide you with all the source material on which their decision has been based? If not, I'd also make a request for this before forming your appeal. I'm still 'surprised' that a financial institution is allowed to change a product without issuing a new CCA agreement which categorically states the new T&Cs, the applicable interest rate (and whether this will be fixed for the remaining term of the loan) and the outstanding balance / loan amount. This more or less means that the original CCA is not worth the paper it is written on as far as the consumer is concerned. Personally, I'm still awaiting my decision. But needless to say I'm not hopeful that they will find in my favour given the feedback left by others. I'm not going to give up on this easily and like others would be willing to take this to court as part of a collective case. (strength in numbers).
Good luck and question everything.

DJTASK

Well I received my Christmas present from FOS that appears to be near verbatim to the others posted here, so much so that it even included items that I didn’t complain about!!

I’ve now responded to the letter disagreeing with the adjudicator conclusions for the following reasons:

1) The FOS state in response that the removal of the flexible additional borrowing facility and the removal of online access were fair. I believe however that this is unfair under consumer contract regulations 1999.

From the “Unfair Terms in Consumer Contract Regulations 1999 OFT guidance”; When a contract is made, obligations are accepted in return for benefits. If one party can unilaterally change agreed terms, to its advantage, the balance of the transaction is lost. So a term is likely to be unfair if it gives the supplier the right at its discretion to force the consumer to accept changes to the bargain. A right to change any term in the contract, or to vary its core terms – the price or description of the product – is particularly open to objection. Fairness, and the law, require that consumers get what they agreed to buy.

The core terms provide by the product have therefore been removed by Santander and are no longer what I the consumer agreed to buy, rendering the change unfair.

2) The clause in the general terms and conditions, 13.2a states “To maintain the competitiveness of our business as a whole, taking into account actual or expected changes in market conditions”. I therefore disagree with FOS statement “But I do not consider that the entire Santander group would have to be making a loss before Cahoot could rely on the provision”, as the clause clearly states “our business as a whole”.

3) Santander acquired the Abbey group including the Cahoots business in November 2004. At that point it will have completed due diligence with respect to the profitability or otherwise of the business, and assumed all liabilities for products that had been sold.

4) Since August 2007 there have been no further interest rate changes despite the Bank of England base rate being substantially reduced. Santander has remained profitable during this time, and therefore it is not unreasonable to have expected the interest rates to be reduced as the margins on the product (due to reduced base rate costs) will have improved for Santander.

I’ve also added a further complaint. Following all the publicity about the Northern Rock Together loan statements being in breach of the consumer credit act, I had a look at my statements from Santander and noticed that they do not comply in a number of areas. This is a breach of the consumer credit act which results in the debtor not being liable to pay any interest during the period of non-compliance. As the paper based monthly statements came into effect from 2010, this would be the date that non-compliance occurred (unless the online statements were also found to be in breach), and hence the date which Santander are not entitled to hold me liable for any interest payments on the product.

Lets see what happens next !

Potatofrisky

Hi

I have had the typical rejection letter on the 24th December and now I have asked the adjudictor to forward my complaint to the obandsman as I was disatisfied with her findings. I have also asked her to pass on all the concerns highlighted by VanGoghsEarhere and DJTask. I have also requested information on what information the judgment was based on. I am not holding my breath because it is extremely rare for the ombudsman to go against the adjudicators decision. Next step after this is the small claims court or a collective legal action.:mad:

Denza

Potatofrisky wrote: »

Hi
I have had the typical rejection letter on the 24th December and now I have asked the adjudictor to forward my complaint to the obandsman as I was disatisfied with her findings. I have also asked her to pass on all the concerns highlighted by VanGoghsEarhere and DJTask. I have also requested information on what information the judgment was based on. I am not holding my breath because it is extremely rare for the ombudsman to go against the adjudicators decision. Next step after this is the small claims court or a collective legal action.:mad:

Agreed on both counts.

How can the Ombudsman overturn all these cookie cutter Adjudications without bringing the entire service into disrepute?

As per Farmer's escalation it's just not going to happen in my opinion even though the Adjudication process has been a complete charade.

Halifax proposed a small claims case previously and this would seem like the next obvious and (relatively) quick turnaround option once we've all drawn a line under the FOS cases - which should all be rejected and escalated (and then re-rejected pending the exact same Ombudsman ratification) as a matter of course in my opinion.

I'm more than happy to chip in a percentage of the costs however my claim extends to more than £5000 hence I am ruling myself out of the test case runners and riders. If anyone is willing and able to put their case forward then now would be as good a time as any to step up for future reference.

Before that commences however it seems prudent to let the FOS process run it's course.

I also have a dialogue with the OFT which seems to be going nowhere at this time but we live in hope.

If anyone has not engaged them yet then I continue to recommend that you send in your concerns regarding the Flexible Loan Terms and Conditions and their subsequent application. This is with particular reference to Unfair Terms in Consumer Contracts Regulations (UTCCR) 1999 and unfair relationship tests in the Consumer Credit Act (CCA) 1974.

The more concerns they receive, the more likely they are to take notice.

hoopjumper

Hi Money Savers,
Last year, having seen the post about this topic, I contacted Santander regarding the cahoot flexible loan that I had for quite some time. It was paid off by the time I contacted them, They did respond quickly - I got an email reply within 48 hours and a letter a couple of weeks later. They said that my loan had been a flexible loan, (implying that I should have expected the rate to change), and that they had given me sufficient notice that the rate was going to rise (it went up by about 10%) and therefore they were not intending to refund anything.
Would be interested to learn if anyone else had this response, gone back for another try etc. etc.?
Thanks

Denza

hoopjumper wrote: »

Would be interested to learn if anyone else had this response, gone back for another try etc. etc.?
Thanks

Well then you are very much in luck as this thread will offer you 82 pages of the exact detail which you are looking for at no extra cost!

Jasmine12

MCSAVE wrote: »

I've still not received my letter, but I have no doubt what it will contain. I've been trying to do some research into CCA guidance for fixed loans as per the current compensation that Northern Rock customers are receiving due to errors with the statements they received. Certain things have to be in those statements, including the original sum borrowed, the opening balance and the closing balance. I'm sure that Santander will argue that this loan was not a fixed loan, but it's certainly not flexible! I've checked my statements and all 3 are not present, which means that they are not allowed to enforce the loan, therefore any interest paid since the fault occured (ie when they first didn't show the 3 figures) should be returned. The problem will be proving that this loan wasn't flexible, but I think that we can probably do that can't we? Anybody else got any thoughts?

MCSAVE might have something.

On the OFT website there is guidance which describes the type of statements which must be issued by a lender to adhere to the CCA - these seem to vary on whether it is a 'fixed-sum credit agreement' or a 'running-account credit agreement'. I am not certain what Santander class our agreements as but I would guess they might be 'running-account'.

Having read the OFT guidance I think MCSAVE is right to query whether the statements issued by Santander satisfy these requirements.

This appears to be what Northern Rock got caught out by.

Anyone out there with a better knowledge of the CCA?