ombudsman mortgage fees

brown1950

magpiecottage wrote: »

The fact is that if a borrower does not meet their mortgage payments when they promised to, there is a cost to that which must be met either by the borrower or the lender. If it is the latter, then those costs must be passed on to other customers.

So there is a conflict of interest - the borrower on one side and the lender's other customers on the other.

The lender has a statutory obligation to manage that conflict of interest fairly. If the bank is saying that the cost of managing the delinquent account should fall on that account holder, rather than those who are managing their accouts properly, that seems entirely correct.

Clearly, if the bank decides to add extra charges to make an additional profit for itself, that would be wrong. However, in this instance, FOS has looked at the charges and determined that the charges are a fair reflection of the cost.

This WILL be more than simply the cost of printing a letter and postage. There is a great deal of infrastructure behind anything in financial services, because of the compliance cost.

And whilst you are entitled to your opinion, if the OP does take his lender to court, I think it will be considerably less likely to be swayed by it than by that of the Financial Ombudsman Service.

I notice you are very selective with your answers ! Are you a
politician ?

Why do you not answer the questions i have raised ?

Why would Banks/Mortgage Companies not want to defend their mortgage arrears fees in Court ?


If Banks/Mortgage Companies think their mortgage arrears charges are acceptable then why do they not put this to be bed and defend them in Court ?
Why do the banks/mortgage companies always settle out of court ?

magpiecottage

brown1950 wrote: »

I notice you are very selective with your answers !

Perhaps because I am only answering the questions to which I can give a sensible answer.

Are you a politician ?

You seem to be the one with a political agenda, not me.

Why do you not answer the questions i have raised ?

Because you need to ask the banks that, not me.

Why would Banks/Mortgage Companies not want to defend their mortgage arrears fees in Court ?

As I say, you need to ask the banks that, not me.

If Banks/Mortgage Companies think their mortgage arrears charges are acceptable then why do they not put this to be bed and defend them in Court ?

You need to ask the banks that, not me.

Why do the banks/mortgage companies always settle out of court ?

You need to ask the banks that, not me.

However, I think that the reasons given elsewhere on this thread are persuasive and anybody relying on your advice needs to understand that, whilst you have cited some instances where lenders have chosen not to go to court, there is always a risk that they might - and if it falls outside the small claims limit that could prove very expensive.

It would also set a precedent.

If I were to speculate, I would hazard a guess that the lenders are waiting until somebody gets a case where they were confident they could win in order to set that precedent. A case, such as the OP's, in which the lender already had an ombudsman's finding in their favour (which they could call upon as part of their response) would seem a likely candidate.

It is for the OP to decide what they should do. It is not, though, without its risks and we do no have any idea how their lender might decide to respond - not least because we have no idea who that lender is.

They also need to bear in mind that, if no case has actually been decided by a court, that means not only that no lender has ever won - but also that no lender has ever lost.

So you are encouraging them to take a substantial financial risk - with their money, not yours.

brown1950

moneysavingexpert.com/news/mortgages/2010/01/reclaim-unfair-mortgage-fees-fsa-says

I will say no more on this thread however Barclays Bank who are not a sub-prime lender refuse to allow their charges to be assesed for fairness in court - end of thread.

Thrugelmir

brown1950 wrote: »

I will say no more on this thread however Barclays Bank who are not a sub-prime lender refuse to allow their charges to be assesed for fairness in court - end of thread.

Interesting that the only lender named in the article was GMAC-RFC. No closer to pinning anything on Barclays.

brown1950

Thrugelmir wrote: »

Interesting that the only lender named in the article was GMAC-RFC. No closer to pinning anything on Barclays.

No closer pinning on Barclays is because they settle out of court and do not allow their charges to be challenged in Court. I know of 2 cases presently going through the small claims court and both claims have been defended by Barclays solicitors. Will let you know the outcome but i can bet settlement will be made by Barclays prior to the Court hearing .

Again you have to ask the question :-

With all the money and legal companies behind Barclays PLC why will they NOT allow their mortgage arrears charges be challenged in court by a LIP ?

bricklayer1

thanks brown1950 for the link you supplied.


Im sorry for the abuse against you I have created here on this post.
FOS shouldn't be the final outcome with something like this, in fact it shows the court that I did try to take the correct and responsible way first with my grievance.
However I believe that FOS will always see in a banks favour here as they are frightened to open a can of worms.
I certainly believe I have been treated unfairly with this company and looking into the FCA guidance it certainly looks like I have a case here.
It wont cost me anything to go to small claims court, which will be my preferred option.
Repossesion should be the last outcome according to the FCA, which is why the judge threw out their claim and showed his displeasure with them.
It would look like the judge agreed with my position and I don't see why its fair that I have to get this companies legal fees added to my account as a result.
Their court action has left me worse off than I was beforehand and im not stopping with this.

magpiecottage

bricklayer1 wrote: »

thanks brown1950 for the link you supplied.


Im sorry for the abuse against you I have created here on this post.

If you consider the responses to brown1950's comments on this thread to be abusive then it follows that

brown1950 wrote: »

Yet another bank defender appears on the scene - Pathetic.

is abuse by brown1950 against Thrugelmur.

brown1950 wrote: »

Why are such an argumentative person ?

is abuse by brown1950 against me.

brown1950 wrote: »

I notice you are very selective with your answers ! Are you a
politician ??

is also abuse by brown1950 against me.

FOS shouldn't be the final outcome with something like this, in fact it shows the court that I did try to take the correct and responsible way first with my grievance.

You have the right to accept, or reject an Ombudsman's decision. If you do not actively accept it, you are deemed to have rejected it. If so, the decision is not binding on either party and you are free to attempt court action.

I believe that FOS will always see in a banks favour here as they are frightened to open a can of worms.

If you go here and search for DRN9301032, DRN3145146, DRN6059146 and DRN5380966.

In addition, DRN0509614 seems involves legal costs.

These complaints were all upheld and seem to demonstrate that your belief is at odds with reality.

I certainly believe I have been treated unfairly with this company and looking into the FCA guidance it certainly looks like I have a case here.

The Ombudsman will know this and indeed the decision (s)he reached will have taken account of it.

It wont cost me anything to go to small claims court

That is incorrect. There is a court fee. This will be added to the claim but if you lose, you will not get it back.

Repossesion should be the last outcome according to the FCA, which is why the judge threw out their claim and showed his displeasure with them. It would look like the judge agreed with my position and I don't see why its fair that I have to get this companies legal fees added to my account as a result.

From what you say, it seems that the court did not award costs against the lender at the possession hearing and the Ombudsman did not either. That being so, the odds seem to be against you.

Their court action has left me worse off than I was beforehand

No doubt - but that is not the same as persuading a court that this is the fault of your lender

im not stopping with this.

Your decision but a final word of warning

"A man hears what he wants to hear and disregards the rest" - Paul Simon.

Let us know how you get on.

brown1950

molerat wrote: »

But it in any case it will cost them a lot of money to go to court, just paying up may be the cheaper option.

Are you saying it will cost lots of money to send a para legal to defend a
small claims action ?

brown1950

bricklayer1 wrote: »

thanks brown1950 for the link you supplied.


Im sorry for the abuse against you I have created here on this post.
FOS shouldn't be the final outcome with something like this, in fact it shows the court that I did try to take the correct and responsible way first with my grievance.
However I believe that FOS will always see in a banks favour here as they are frightened to open a can of worms.
I certainly believe I have been treated unfairly with this company and looking into the FCA guidance it certainly looks like I have a case here.
It wont cost me anything to go to small claims court, which will be my preferred option.
Repossesion should be the last outcome according to the FCA, which is why the judge threw out their claim and showed his displeasure with them.
It would look like the judge agreed with my position and I don't see why its fair that I have to get this companies legal fees added to my account as a result.
Their court action has left me worse off than I was beforehand and im not stopping with this.

Well Bricklayer I have over the last few months certainly brought out the 'bank defenders' on this site. Don't worry i am thick skinned when it comes to some of the regular posters on this site who defend certain institutions in respect of mortgage arrears charges . In fact if you are lucky you might also get a written english lesson for free !

Lets look at the following :-

FOS - if you compain regarding mortgage arrears charges after perhaps
12 to 18 months you will get the usual rejection. Why waste your time
with the FOS ?

Fortunately we are still allowed in this country to persue via the court system what you consider as unfair charges (contract or no contact ) refer to :-
Unfair Terms in Consumer Contracts Regulations 1999 (Statutory Instrument 1999 No. 2083)

I know of many instances where people have obtained a refund of mortgage charges via the court system incl 22.5% interest in restitution.
The fact you have failed via the FOS will make no difference to your legal claim because of :-

a) The Judge has to decide on points of law (UTCCR)

b) In all previous cases the Bank defending your action will settle
prior to the court hearing. (They do not want their charges to be
scrutinized in Court)

Who knows perhaps in the future the Banks will try and get another
OFT type !!!!-up to close the door on claiming these charges. In the
meantime Mr Joe Bloggs in the UK can accept the FOS decision and
give up or take it further via the Courts. For a claim under £5,000 the
fee of £185.00 to reclaim mortgage arrears fees is a fee in my opinion worth paying.

I will report back later this year on the outcome of two legal cases i know of against Barclays Bank PLC in respect of mortgage arrears fees.

Will Barclays Bank PLC say - enough is enough and allow the
action to go to Court and allow their charges to be scrunitized ?

magpiecottage

brown1950 wrote: »

Well Bricklayer I have over the last few months certainly brought out the 'bank defenders' on this site. Don't worry i am thick skinned

Thrugelmuir, dunstonh and I are not acting for the banks. We are simply pointing out the counterarguments so that the OP can make an informed decision.

The fact that brown1950 cannot, or will not, understand that does not call the thickness of his skin into question - though I make no comment on other parts of his anatomy.

brown1950 wrote: »

FOS - if you compain regarding mortgage arrears charges after perhaps 12 to 18 months you will get the usual rejection. Why waste your time with the FOS ?

The obvious flaw with that argument is

bricklayer1 wrote: »

I put this to the ombudsman as part of my claim that I thought £50 fees every month was excessive.

brown1950 wrote: »

Fortunately we are still allowed in this country to persue via the court system what you consider as unfair charges

I do not argue with that.

But you can sue anybody about anything - that does not mean you will necessarily win.

brown1950 wrote: »

refer to :- Unfair Terms in Consumer Contracts Regulations 1999 (Statutory Instrument 1999 No. 2083)

On the face of it, this appears stronger than section 447 of the Financial Services and Markets Act 2000, which says, "The ombudsman will make a decision about the complaint on the basis of what he considers is fair and reasonable in the circumstances."

However, it goes on to say, "The scheme operator has the power under paragraph 14 of Schedule 17 to specify the matters that can be taken into account when determining what is fair and reasonable".

That power has been exercised. You can find this in the FCA handbook under chapter DISP 3.6.

Rule DISP 3.6.4 R says:

"n considering what is fair and reasonable in all the circumstances of the case, the Ombudsman will take into account:

1. relevant:
   
   1. (a)law and regulations;
   2. (b)regulators' rules, guidance and standards;
   3. (c)codes of practice; and
2. where appropriate) what he considers to have been good
   industry practice at the relevant time."

So the Ombudsman will have looked not only at SI1999/2083 but also at the other parts of the FSA handbook (as it was at the time). (S)he will have looked at what the FSA was actually saying. A court cannot consider anything that was not actually in the handbook at the time.


The Ombudsman will have looked at what industry bodies such as the Council of Mortgage Lenders were saying (even if the particular lender was not a member). Unless there was a contractual commitment to comply with what a particular body said, a court cannot consider that either.

Having done so, it found in favour of the OP's lender. That suggests a court, which can only look at what the law actually said (albeit including any relevant FSA/FCA rule), is unlikely to find differently

The fact you have failed via the FOS will make no difference to your legal claim because of :-

a) The Judge has to decide on points of law (UTCCR)

Essentially, the Ombudsman can find in favour of the consumer if either the letter or the spirit of the law has been breached but decided neither has.

The court can look only at the letter of the law, which the Ombudsman has determined has not been breached.

brown1950 wrote: »

I know of many instances where people have obtained a refund of mortgage charges via the court system incl 22.5% interest in restitution.

but you also say

brown1950 wrote: »

b) In all previous cases the Bank defending your action will settle prior to the court hearing. (They do not want their charges to be scrutinized in Court)

So there is no precedent on which the OP can rely - and no guarantee that their lender will decide to settle.

brown1950 wrote: »

For a claim under £5,000 the fee of £185.00 to reclaim mortgage arrears fees is a fee in my opinion worth paying.

Possibly. However, if the consumer loses, the £185 is good money after bad.

In addition, we do not know what the OP's contract with his lender says. I have seen contracts which say that if a consumer complains in good faith, right up to an Ombudsman they will not charge for their time but if the case goes to court and the consumer loses, they will.

The OP should therefore check his contract carefully. If it is there, he needs to consider whether, in the light of the Ombudsman's decision, a court is likely to find differently and if it does not, whether that part of the contract is enforcible against him.

It is very easy to sit on a beach in Bali and tell somebody back in the UK to take a course of action without recourse to you personally if it backfires.

I think the OP had already decided before coming here that he would go to court. The reality is, though, that extremely few Ombudsman decisions are overturned in court.