Is the Financial Ombudsman the last recourse to a dispute with the bank

Dents

We didn't react within the 'agreed' timescales established between the Financial Ombudsman and the banks for warnings that the policy was failing. That doesn't negate that the endowment mortgage wasn't fit for purpose at the outset. The bank will not consider our complaint, can we consider litigation? 

Browntoa

If you have deep pockets to pay your legal team

ACG

If there is a valid reason as to why you did not go back to the FOS in time they can re-open the case I believe - but it would be things like being in hospital rather than you were just too busy. 

Thrugelmir

Dents said:

That doesn't negate that the endowment mortgage wasn't fit for purpose at the outset. 

Is that a personal or legal opinion?  

dunstonh

We didn't react within the 'agreed' timescales established between the Financial Ombudsman and the banks for warnings that the policy was failing. 

The FOS will overrule the timebar due to delay if you have justification for not replying in the whole of the delayed period.  However, they are strict on what they accept.  Death of immediate family member or incapacity are the main two.   

That doesn't negate that the endowment mortgage wasn't fit for purpose at the outset. 

Endowments were fit for purpose.  That is not what the issue was about. 

The bank will not consider our complaint, can we consider litigation? 

you are barred from legal action as the sale would have taken place more than 15 years ago.  So, the 15 year legal back stop would apply.    Section 32 does allow the 15-year bar to be waived if it is less than 6 years from the discovery of a problem.   However,  for that to happen, the defendant (the bank in this case) has to have intentionally done wrong or concealed it.  That is unlikely to apply to the vast majority of endowment sales.   Plus, even if they had, you would have a hard job explaining away the last 20 years of endowment shortfall warnings (assuming your endowment is still running - if it matured years ago then its even harder).   Whilst the mid point projection showing a shortfall is not necessarily sufficient (what used to be referred to as a red warning) many endowment providers started to include text from around 2003 to 2007 warning people that their endowment has a high chance of failing to hit target.  That would be sufficient as its a clear warning in writing to you.

So, it's not impossible that you could have a legal route but so much would depend on the dates involved and the strength of your evidence showing negligence or an act of omission.  It is also worth noting the uphold rates on endowment complaints was relatively low.   And that was using the regulatory complaints process which is slightly consumer biased compared to the courts. i.e you didn't need evidence to back up allegations and a lot of consumer-facing documentation is disregarded.  Whereas the courts consider all documentation and there is an expectation of evidence being provided to support allegations.  So, successful cases in the courts are hard to come back purely by lack of volume (most of the successful ones are early 2000s before time bar laws could kick in - and some of these laws were clarified and adjusted after these cases).

Cost will be an issue. It is unlikely a solicitor would fund your case.  You may well find that losing the case costs you tens of thousands of pounds and if it goes through appeals it could run into 6 digits.    It may be possible to buy ATE insurance but that is still a not insignificant cost and for many people it would be more than the shortfall on their endowment.   Which makes the risk vs reward potential undesirable.

When did you take the endowment out?

When did it mature (or is it still running)?

How strong is your evidence of negligence?

Dents

ACG said:

If there is a valid reason as to why you did not go back to the FOS in time they can re-open the case I believe - but it would be things like being in hospital rather than you were just too busy. 

we were young and naïve and thought that the fund would work out over time (20+ years), which of course it hasn't 

Dents

dunstonh said:

We didn't react within the 'agreed' timescales established between the Financial Ombudsman and the banks for warnings that the policy was failing. 

The FOS will overrule the timebar due to delay if you have justification for not replying in the whole of the delayed period.  However, they are strict on what they accept.  Death of immediate family member or incapacity are the main two.   

That doesn't negate that the endowment mortgage wasn't fit for purpose at the outset. 

Endowments were fit for purpose.  That is not what the issue was about. 

The bank will not consider our complaint, can we consider litigation? 

you are barred from legal action as the sale would have taken place more than 15 years ago.  So, the 15 year legal back stop would apply.    Section 32 does allow the 15-year bar to be waived if it is less than 6 years from the discovery of a problem.   However,  for that to happen, the defendant (the bank in this case) has to have intentionally done wrong or concealed it.  That is unlikely to apply to the vast majority of endowment sales.   Plus, even if they had, you would have a hard job explaining away the last 20 years of endowment shortfall warnings (assuming your endowment is still running - if it matured years ago then its even harder).   Whilst the mid point projection showing a shortfall is not necessarily sufficient (what used to be referred to as a red warning) many endowment providers started to include text from around 2003 to 2007 warning people that their endowment has a high chance of failing to hit target.  That would be sufficient as its a clear warning in writing to you.

So, it's not impossible that you could have a legal route but so much would depend on the dates involved and the strength of your evidence showing negligence or an act of omission.  It is also worth noting the uphold rates on endowment complaints was relatively low.   And that was using the regulatory complaints process which is slightly consumer biased compared to the courts. i.e you didn't need evidence to back up allegations and a lot of consumer-facing documentation is disregarded.  Whereas the courts consider all documentation and there is an expectation of evidence being provided to support allegations.  So, successful cases in the courts are hard to come back purely by lack of volume (most of the successful ones are early 2000s before time bar laws could kick in - and some of these laws were clarified and adjusted after these cases).

Cost will be an issue. It is unlikely a solicitor would fund your case.  You may well find that losing the case costs you tens of thousands of pounds and if it goes through appeals it could run into 6 digits.    It may be possible to buy ATE insurance but that is still a not insignificant cost and for many people it would be more than the shortfall on their endowment.   Which makes the risk vs reward potential undesirable.

When did you take the endowment out?

When did it mature (or is it still running)?

How strong is your evidence of negligence?

I think that we have a very weak argument, apart from that the fund has never performed as it was outlined that it would. We had only just left college and didn't understand the caveats. Over circa 20+ years £44k pension mortgage (sorry I used the wrong term earlier) plus pension should have conservatively reached £200k, in fact only £110k, initially with Midland who I believe transferred/sold the business to ReAssure

Thrugelmir

Dents said:

dunstonh said:

We didn't react within the 'agreed' timescales established between the Financial Ombudsman and the banks for warnings that the policy was failing. 

The FOS will overrule the timebar due to delay if you have justification for not replying in the whole of the delayed period.  However, they are strict on what they accept.  Death of immediate family member or incapacity are the main two.   

That doesn't negate that the endowment mortgage wasn't fit for purpose at the outset. 

Endowments were fit for purpose.  That is not what the issue was about. 

The bank will not consider our complaint, can we consider litigation? 

you are barred from legal action as the sale would have taken place more than 15 years ago.  So, the 15 year legal back stop would apply.    Section 32 does allow the 15-year bar to be waived if it is less than 6 years from the discovery of a problem.   However,  for that to happen, the defendant (the bank in this case) has to have intentionally done wrong or concealed it.  That is unlikely to apply to the vast majority of endowment sales.   Plus, even if they had, you would have a hard job explaining away the last 20 years of endowment shortfall warnings (assuming your endowment is still running - if it matured years ago then its even harder).   Whilst the mid point projection showing a shortfall is not necessarily sufficient (what used to be referred to as a red warning) many endowment providers started to include text from around 2003 to 2007 warning people that their endowment has a high chance of failing to hit target.  That would be sufficient as its a clear warning in writing to you.

So, it's not impossible that you could have a legal route but so much would depend on the dates involved and the strength of your evidence showing negligence or an act of omission.  It is also worth noting the uphold rates on endowment complaints was relatively low.   And that was using the regulatory complaints process which is slightly consumer biased compared to the courts. i.e you didn't need evidence to back up allegations and a lot of consumer-facing documentation is disregarded.  Whereas the courts consider all documentation and there is an expectation of evidence being provided to support allegations.  So, successful cases in the courts are hard to come back purely by lack of volume (most of the successful ones are early 2000s before time bar laws could kick in - and some of these laws were clarified and adjusted after these cases).

Cost will be an issue. It is unlikely a solicitor would fund your case.  You may well find that losing the case costs you tens of thousands of pounds and if it goes through appeals it could run into 6 digits.    It may be possible to buy ATE insurance but that is still a not insignificant cost and for many people it would be more than the shortfall on their endowment.   Which makes the risk vs reward potential undesirable.

When did you take the endowment out?

When did it mature (or is it still running)?

How strong is your evidence of negligence?

 Over circa 20+ years £44k pension mortgage (sorry I used the wrong term earlier) plus pension should have conservatively reached £200k, in fact only £110k, initially with Midland who I believe transferred/sold the business to ReAssure

How much have you been contributing monthly? When did the plan commence?