Santander refusing to discharge mortgage

DandelionPatrol

Lamma wrote: »

This is in fact the direction we're heading. When we asked for a redemption statement for the mortgage and it came back with (among other things) a refusal to lift the charge until the other loan was paid off, we asked in writing for the legal basis of their position. That was over a month ago and so far they havent answered, apart from continuing to try to harass my mother by phone. I honestly think, though, this is not a considered ploy. Santander appear to be set up to operate on a telephone basis only, and although they have numerous operational centres, none of them talk to each other, so the one arm doesnt know what the other is doing. If you write letters, they tend to disappear into a black hole. This makes it difficult to raise issues of any complexity, even something relatively straightforward such as questioning figures on their statements. Call centre staff cannot deviate beyond their script and there's no-one else to contact apart from the complaints centre, who take months to respond. This leaves us writing the same letter to multiple different destinations in the hope that someone will eventually answer.

In any event, they will have to deal with our redemption statement queries sooner or later and that will eventually give us the opportunity to make an ultimatum. As you say, its a tough call but at the least it will push them towards taking a view on the merits of their case.

OK, 3 questions

When did you or mother first become aware

• that Father had taken out a loan for his business?
• that he had forged Mother's signature?
• that Santander are relying on the mortgage charge to recover their loss?

Overall, it seems to me that you might already have enough to take this to the [Financial Ombudsman Service ??], but you need to take a look at whether their decisions are binding on you and whether they are in a position to make a ruling of fact on whether Father's loan was fraudulent.


If you go down that route, it may be better to consider Mother making a non-customer complaint to Santander in respect of being pursued for Father's loan to which she is not a party, rather than a customer complaint as the mortgage customer. I do not know whether the FOS or whoever will take on non-customer complaints.


This is all ideas rather than recommendations, of course.

Lamma

Knowledge of forgery, lack of security, and reliance on the mortgage charge all came to light within the last few months. Knowledge of the loan predates this, which I understand raises ratification issues but as I said at the start, I'm happy where we stand on this having completed the research and I dont want to turn this thread into a discussion on ratification, interesting as it is.

I have to say I'd be reluctant to resort to the FOS because I dont think its a forum best suited to settle issues of fact. I think an ombudsman would say that determining the existence of a forgery would be a matter for expert evidence, which is beyond his remit. In addition, the bank could raise all sorts of other factual issues just to muddy the waters and frustrate the outcome, which would then serve to waste time and energy. Having said that, I'm not familiar with FOS procedure. I assume its inquisitorial but doesnt involve examination of witnesses?

Beyond that, I'm also not familiar with the distinction in practice between a customer and a non-customer complaint. I suppose you would be right that if she is not a party to or bound by the loan she would not technically be a customer, at least in relation to that loan. Does it make a difference?

magpiecottage

silvercar wrote: »

Would a Freedom of Information request focus their minds, or at least force them to put the paperwork together?

No - the Freedom of Information Act relates to government bodies.[/quote]
I have to say I'd be reluctant to resort to the FOS because I dont think its a forum best suited to settle issues of fact. I think an ombudsman would say that determining the existence of a forgery would be a matter for expert evidence, which is beyond his remit.[/quote]
FOS is free - and can award up to £150,000 redress. An Ombudsman's decision would be legally binding on the business if you accept it (but on neither party if you do not).

Do you actually have a copy of the signature that you say is a forgery? If it is obviously different from any other signatures of yours that they hold then they will find it difficult to defend their position.

My first course of action would therefore be to obtain the signatures. If there is an obvious discrepancy, I would complain along those lines.

I'm not familiar with FOS procedure. I assume its inquisitorial but doesnt involve examination of witnesses?

It is inquisitorial but it is also paper based. Only in exceptional circumstances is there a hearing. I have only ever been involved in one case that went to a hearing (and that was simply that both sides agreed that it was fairest to ask somebody neutral to decide how much compensation was fair as neither knew how to quantify the loss).

Beyond that, I'm also not familiar with the distinction in practice between a customer and a non-customer complaint. I suppose you would be right that if she is not a party to or bound by the loan she would not technically be a customer, at least in relation to that loan. Does it make a difference?

As she is a party to the mortgage they refuse to discharge, she IS a customer.

So her complaint is that Santander is refusing to discharge the mortgage on repayment of the balance of the mortgage loan account because of a loan to which she was not a party and which was never secured on her home.

If the supposed signature is clearly not the one on the mortgage, Santander's position will be even more tenuous.

An additional advantage of going down the complaints route is that Santander will get an organ grinder rather than a monkey to look at it. Organ grinding does not involve a great deal of intelligence but it is more than a monkey needs.

Lamma

It is inquisitorial but it is also paper based. Only in exceptional circumstances is there a hearing. I have only ever been involved in one case that went to a hearing (and that was simply that both sides agreed that it was fairest to ask somebody neutral to decide how much compensation was fair as neither knew how to quantify the loss).

OK, but if the parties disagree about a material fact, how would the ombudsman resolve the issue?

Lamma

An additional advantage of going down the complaints route is that Santander will get an organ grinder rather than a monkey to look at it. Organ grinding does not involve a great deal of intelligence but it is more than a monkey needs.

This may be a good point. Is there any other way to get the attention of an organ grinder though?

Lamma

Just to be clear - I think the idea of using the FOS to require the bank to lift the charge may be worthwhile. It would turn simply on whether or not the 2nd loan was secured. The issue I have been focusing on is whether it would be an appropriate forum for determining the enforceability of the 2nd loan itself, given the complexities involved.

DandelionPatrol

Lamma wrote: »

Knowledge of forgery, lack of security, and reliance on the mortgage charge all came to light within the last few months. Knowledge of the loan predates this, which I understand raises ratification issues but as I said at the start, I'm happy where we stand on this having completed the research and I dont want to turn this thread into a discussion on ratification, interesting as it is.

I have to say I'd be reluctant to resort to the FOS because I dont think its a forum best suited to settle issues of fact. I think an ombudsman would say that determining the existence of a forgery would be a matter for expert evidence, which is beyond his remit. In addition, the bank could raise all sorts of other factual issues just to muddy the waters and frustrate the outcome, which would then serve to waste time and energy. Having said that, I'm not familiar with FOS procedure. I assume its inquisitorial but doesnt involve examination of witnesses?

Beyond that, I'm also not familiar with the distinction in practice between a customer and a non-customer complaint. I suppose you would be right that if she is not a party to or bound by the loan she would not technically be a customer, at least in relation to that loan. Does it make a difference?

I don't see 'ratification' as an issue here. Knowledge of the loan itself is not sufficient IMO to ratify Mother's responsibility - it would be knowledge of a signature purported to be hers on the loan agreement which would start the clock ticking for ratification.

I would share your reservations about the FCO but it is a forum in which to take on the argument which leaves court in reserve.

This is where the distinction between 'customer' and 'non-customer' comes in. In relation to the mortgage, she is a customer. In relation to the loan, she is not. I am suggesting that she wears her hat as a non-party to the loan to complain that Santander are trying to stick her with the bill for Santander's losses from a loan which she was not a party to, rather than to complain that as mortgage customer the cahrge will not be lifted from her property.

magpiecottage wrote: »

Do you actually have a copy of the signature that you say is a forgery? If it is obviously different from any other signatures of yours that they hold then they will find it difficult to defend their position.

My first course of action would therefore be to obtain the signatures. If there is an obvious discrepancy, I would complain along those lines.

I agree with the above

magpiecottage wrote: »

As she is a party to the mortgage they refuse to discharge, she IS a customer.

So her complaint is that Santander is refusing to discharge the mortgage on repayment of the balance of the mortgage loan account because of a loan to which she was not a party and which was never secured on her home.

If the supposed signature is clearly not the one on the mortgage, Santander's position will be even more tenuous.

An additional advantage of going down the complaints route is that Santander will get an organ grinder rather than a monkey to look at it. Organ grinding does not involve a great deal of intelligence but it is more than a monkey needs.

I am suggesting that Mother does not go to the FOS as the mortgage customer in this instance, but that she goes as the non-customer for the loan. This approach places the question under consideration to be whether the loan document is valid and avoids going down side issues such as 'all-monies' charges. It places the focus as close as possible to the core issue of the document having a forged signature and avoids the FOS making an explicit ruling on the mortgage, leaving court proceedings available in respect of the mortgage. If OP gets an adverse ruling from the FOS, I would expect that a court would more readily look at overturning a ruling of fact from the FOS on the document being forged than it would at overturning a ruling from the FOS that an all monies charge applies.

Lamma wrote: »

Just to be clear - I think the idea of using the FOS to require the bank to lift the charge may be worthwhile. It would turn simply on whether or not the 2nd loan was secured. The issue I have been focusing on is whether it would be an appropriate forum for determining the enforceability of the 2nd loan itself, given the complexities involved.

How good is your evidence on Mother's signature being invalid [don't answer here!]. If it is good, then it is the most straight forward argument. If you are going to struggle here, then what you are left with is wriggling out of an otherwise valid loan on a combination of limitations and applicability of the mortgage charge.