ombudsman mortgage fees

brown1950

magpiecottage wrote: »

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. Rubbish
Well you named the bank defenders not me !

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.
What do i not understand about taking banks to court and getting refunds ?



The obvious flaw with that argument is




I do not argue with that. Wow blow me down ?

But you can sue anybody about anything - that does not mean you will necessarily win.
As the Banks are not defending these actions plaintiffs
have a 99% success rate .



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.

Again it is obvious you are not aware of what rulings a court can make in respect of these Mortgage Arrears Fees - A court can rule on points of law and not what the FOS rule .

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 -
Sorry but your argument is flawed ! The Banks will not go to Court to test your argument.


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 FOS do not rule based on English Law.

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



but you also say


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

The defending bank will settle prior to the court hearing because as i have told you many times they do not want their charges to be scrutinized in Court.


Possibly. However, if the consumer loses, the £185 is good money after bad.
£185 fee to recover charges up to £10,000 to me seems a good deal especially if you have a 99% success rate of winning.

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.

As i have already told you it does not matter what is in the contract - if the contract is unfair the plaintiff under UTTCR has a right to challenge the contract. It would appear to me - presently sitting in Kuala Lumpur Airport awaiting my flight back to the UK that this particular part of English Law you do not understand.

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.-
Pathetic comment.

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.

Wrong

As i have said many times people are recovering mortgage arrears charges via the courts but are failing via the FOS -
The reality is, though, that extremely few Ombudsman decisions are overturned in court.[/QUOTE]

Please give examples as i am not aware of one case going to court and the banks defending the action based on the FOS rejection.

magpiecottage

brown1950 wrote: »

Wrong

As i have said many times people are recovering mortgage arrears charges via the courts but are failing via the FOS

So where are your examples of cases where FOS has ruled against a consumer and a court has overturned that decision.

Please give examples as i am not aware of one case going to court and the banks defending the action based on the FOS rejection.

This is quite concerning. You advocate going to court when FOS has ruled against somebody but then expect somebody contesting your assertion to prove it is false. That is at odds with the principle of he who asserts must prove - an approach which will be more strictly applied in a court than at FOS.

brown1950

magpiecottage wrote: »

So where are your examples of cases where FOS has ruled against a consumer and a court has overturned that decision.

You fail to see what i have now been saying for many months and that is The Courts have not had the opportunity to consider any mortgage arrears fees because the Banks have not allowed any fees to be scrutinized.in Court. The Banks have always settled claims prior to any court hearing. Trust this is clear even for you ?


This is quite concerning. You advocate going to court when FOS has ruled against somebody but then expect somebody contesting your assertion to prove it is false. That is at odds with the principle of he who asserts must prove - an approach which will be more strictly applied in a court than at FOS.

What i have been saying is that people have an alternative to the FOS route - such as court action.

magpiecottage

brown1950 wrote: »

What i have been saying is that people have an alternative to the FOS route - such as court action.

Nobody on this thread has suggested they do not.

However, it is wrong to suggest it is more likely to succeed than using FOS - or that it is without risk.

brown1950

magpiecottage wrote: »

Nobody on this thread has suggested they do not.

However, it is wrong to suggest it is more likely to succeed than using FOS - or that it is without risk.

Why is it wrong to suggest people are more likely to succeed recovering mortgage arrears fees via the small claims court than using the FOS ?

magpiecottage

brown1950 wrote: »

Why is it wrong to suggest people are more likely to succeed recovering mortgage arrears fees via the small claims court than using the FOS ?

Perhaps because the you can quote no case where a court has made an award in favour of a consumer over such fees.

Perhaps because I can point to FOS DRN41447184 - a real case in which the consumer won.

Perhaps because I can point to FOS DRN4215397 - a real case in which the consumer won.

Perhaps because I can point to FOS DRN5380966 - a real case in which the consumer won.

Perhaps because I can point to FOS DRN1261568 - a real case in which the consumer won.

Perhaps because I can point to FOS DRN3383363 - a real case in which the consumer won.

Perhaps because I can point to FOS DRN6059146 - a real case in which the consumer won.

Perhaps because I can point to FOS DRN5071868 - a real case in which the consumer won.

Perhaps because I can point to FOS DRN6425535 - a real case in which the consumer won.

Perhaps because I can point to FOS DRN4551754 - a real case in which the consumer won.

Perhaps because I can point to FOS DRN8636409 - a real case in which the consumer won.

That is ten - nil in favour of FOS. What's more, there seem to be over a thousand cases like that where the consumer has won.

However, that last case gives us a warning. The Ombudsman said:

"[The lender]has incurred solicitors’ fees in connection with the court proceedings that it has applied to Mr L’s mortgage. I am satisfied that [the lender] is allowed to do this under the mortgage terms and conditions. The charges are higher in this case than I would normally expect. However, I am satisfied that this is due to extra work carried out by the solicitors in relation to the applications and appeals made by Mr L. It does not seem to me that the solicitors’ charges are unreasonable in all the circumstances of this case."

That illustrates one of my earlier points. If the terms and conditions allow, a lender can charge a borrower for legal costs it incurs in fighting through the courts if those costs are considered reasonable. Whilst the lender probably would not persuade FOS (or a court) that it was reasonable to charge those fees in a case it lost, if it won then it probably can.

By contrast, even if it wins at FOS, it cannot charge unless the complaint is deemed frivolous or vexatious - or, following the case of Cirencester Friendly Society v Parkin, fraudulent.

So, in summary, a complaint to FOS is free if made in good faith - even if you lose, whereas a court may not be.

There is a track record of FOS making legally binding awards in favour of borrowers in respect of arrears charges but no record of the courts ever making such an award.

brown1950

I will let the poster advise in due course the outcome of any legal proceedings against his lender - No doubt the lender will settle prior to the court action - but of course you already know that as no records exist of lenders defending their arrears charges in Court.

magpiecottage

brown1950 wrote: »

I will let the poster advise in due course the outcome of any legal proceedings against his lender - No doubt the lender will settle prior to the court action - but of course you already know that as no records exist of lenders defending their arrears charges in Court.

Whilst you have quoted cases settled before getting to court, I suspect those are cases which, like the ones I have cited, an ombudsman would have found in favour of the consumer. However in this case the ombudsman has found the other way - and that is where the risk lies.

Hopefully we will learn of the outcome in due course.

What is interesting from the cases I cited is that FOS seems to says that a fee is justified in any month in which the contractrual minimum payment is not met. On the other hand, if the minimum contractual payment was fully met, the fee should not be charged - even if there are existing arrears on the account.

It does this using its "fair and reasonable" discretion. In court, on the other hand, you are reliant on it finding a specific legal breach.

It might decide that charging a fee each month all the while the account is in arrears is not a contractual right - either because it is not in the contract or because it can be set aside under the Unfair Terms in Consumer Contracts Regulations 1999.

On the other hand, since no court has ever decided, it might not.

brown1950

magpiecottage wrote: »

Whilst you have quoted cases settled before getting to court, I suspect those are cases which, like the ones I have cited, an ombudsman would have found in favour of the consumer. However in this case the ombudsman has found the other way - and that is where the risk lies.

Hopefully we will learn of the outcome in due course.

What is interesting from the cases I cited is that FOS seems to says that a fee is justified in any month in which the contractrual minimum payment is not met. On the other hand, if the minimum contractual payment was fully met, the fee should not be charged - even if there are existing arrears on the account.

It does this using its "fair and reasonable" discretion. In court, on the other hand, you are reliant on it finding a specific legal breach.

It might decide that charging a fee each month all the while the account is in arrears is not a contractual right - either because it is not in the contract or because it can be set aside under the Unfair Terms in Consumer Contracts Regulations 1999.

On the other hand, since no court has ever decided, it might not.

Despite what you have said over the last few months people are recovering mortgage arrears charges via legal action and of course you have to ask the question ' Why don't the lenders allow the legal proceedings to continue and let the lenders defend their fee's in court ?
Of course we know why this does not happen. Lenders are settling prior to a court hearing and do not want disclosure of the their charges being scrutinized !

magpiecottage

brown1950 wrote: »

Despite what you have said over the last few months people are recovering mortgage arrears charges via legal action and of course you have to ask the question ' Why don't the lenders allow the legal proceedings to continue and let the lenders defend their fee's in court ? Of course we know why this does not happen. Lenders are settling prior to a court hearing and do not want disclosure of the their charges being scrutinized !

Although you say this, you are unable to produce evidence of any case where a court has ruled in favour of a consumer on this issue.

By contrast, I have given numberous examples of consumers taking lenders to FOS, free of charge or risk, and winning arrears charges disputes.

You have speculated a reason for lenders not allowing such cases to get to court. That is a possible reason. However, alternatives have been suggested that are at least as plausible.

So no we do not know - and the mere repeated assertion that what you say is fact does not change the reality that it is unsubstantiated speculation.

Nor does it change the reality that anybody taking a lender to court faces the risk of losing - and possibly having costs awarded against them.