This is still bugging me, if only I'd been this persistent six sodding years ago but there it is. Anyway, to quote the FOS investigator from their last email........ You have stated that you didn’t believe that the letter of October 2015 was enough to create awareness that other fees could be challenged. The rules are not about awareness that you can complain, but that there is something to complain about. The three-year part of the rule deals with when you ought reasonably to have been aware that there were charges on the account, and I believe that the letter in October 2015 satisfies this. You would have also been sent statements that showed the charges applied to the account. And from the FCA's website..... The Ombudsman cannot consider a complaint if the complainant refers it to the Financial Ombudsman Service: (1) more than six months after the date on which the respondent sent the complainant its final response, redress determination or summary resolution communication; or (2) more than: (a) six years after the event complained of; or (if later) (b) three years from the date on which the complainant became aware (or ought reasonably to have become aware) that he had cause for complaint; unless the complainant referred the complaint to the respondent or to the Ombudsman within that period and has a written acknowledgement or some other record of the complaint having been received; Is it just me or do the two red highlighted comments contradict themselves? I know, I'm clutching at straws here....

Hi DX, Still yet to receive a final decision by an actual Ombudsman so to speak but I guess I know what the outcome would/will be.

Thanks for reopening the topic. Its taken ages to get a response from the FOS hence the delay in updating but the FOS being what they are its nothing to shout about. I'll paste in the email trail in bold italic. Dear ******* Mr ****** complaint about Kensington Mortgage Company Limited Thank you for your patience while I’ve been investigating whether we can look into your complaint. I’ve looked into all the information that both you and Lloyds have provided, and I have enough to consider if we can look into this complaint. In summary I understand that this complaint is about the charges and fees that have been applied to your account when you missed payments on your mortgage. You would like these fees and charges waived. The Dispute Resolution Rules (DISP rules) laid down by the Financial Conduct Authority set out what complaints we can look into and when they should be brought to us. Unless a business gives us consent to look into the complaint outside of the time limits set out in DISP, you would need to bring your complaint to us within: • six years of the event you are complaining about, or, if later, • three years from when you were, or ought reasonably to have been, aware that there was a reason to complain. unless there are exceptional circumstances that prevented you from bringing your complaint to us in time. I’ve considered all the information that you and Lloyds have provided, and I’ve attached my findings to this email. My outcome is based on what I believe is fair and reasonable in this situation. In order for me to believe that we can investigate this complaint, I’d have to see that it was brought in time or that there were exceptional circumstances that prevented you from bringing it in time. It is on this basis that I considered your complaint and present my findings. Kind regards My Reply Dear ***** Thank you for your email although I cannot say that I wasn't disappointed with your findings. Anyway, in answer to your point with regard to the three year rule.... "The three-year part of the rule would also apply to each charge, as above but the difference is it looks at when you ought reasonably to have been aware that you had a complaint. In October 2015 you were sent a letter that confirmed the change to the fee policy and that you would be refunded £309.84. I believe you ought to have been aware at this point and three years from October 2015 is October 2018." I'm at a loss as to understand why the refund given in October of 2015 would lead me or anyone else for that matter to think that they could challenge any other fees? If I am told by my mortgage lender that I have been refunded an amount of money due to changes in their fee structure I would assume that they are addressing any fees that were affected and that any other fees or charges would be fair legal and wouldn't be questionable. As a consumer and like many others I'm sure, I was under the impression that any fees or charges applied to an account by any financial services company would be binding and within the regulations as stipulated by the FCA. To quote Acenden from their own letter............ "I have also enclosed a copy of our letter of 16th October 2015. This explained that £280 AMFs had been refunded as a gesture of goodwill, due to a change of our fee charging policy." If this refund was a goodwill gesture as it states why would that lead me to believe that it was anything other than that? It certainly doesn't infer that any other charges could be questioned let alone reversed or refunded. And for this reason I was always under the impression that I would have no grounds for complaint and therefore never looked into the matter further. Until however I received a call from Acenden at some point around May/June of this year asking me if I wanted to pay the fees in one lump sum or set up some kind of payment arrangement. It was this that first inspired me to look closer at this and what has lead me here today. "You haven’t provided exceptional circumstances for the delay." This isn't a part of my life that I wanted to re-visit but it appears I have to if only to try and get a fair outcome. Like millions of people at the time I was directly affected by the financial crisis of that era. I was a self employed contractor who lost my income almost overnight and as a consequence fell into financial hardship. I approached Capstone (Acendens predecessor) for help but they simply were not interested. The only assistance they offered was for us to maintain our CMP together with an amount over and above to go towards the arrears. So there am I, I cannot afford my CMP yet Capstone want this plus extra to clear the arrears. And so begins the vicious circle of fees and threats. I asked Capstone to consider a payment holiday to give us some breathing space and give us a chance to catch up but it was always met with refusal. What followed for me personally was the better part of three years of anxiety and stress. Just to make matters worse, around 2011 my Wife became unwell and working became difficult for her and had to reduce her hours. This went on for the next seven years before she finally received an accurate diagnosis and treatment commenced. She is still to this day under the care of UCLH in London and as a result of her illness registered disabled. So all in all we were somewhat distracted from this issue for quite some time. Kind regards, Their Reply Dear ***** Mr ***** complaint about Kensington Mortgage Company Limited Thank you for your email. I sent you my view of this complaint on 1 December 2022 and can confirm that what you have said doesn’t change my findings. You have stated that you didn’t believe that the letter of October 2015 was enough to create awareness that other fees could be challenged. The rules are not about awareness that you can complain, but that there is something to complain about. The three-year part of the rule deals with when you ought reasonably to have been aware that there were charges on the account, and I believe that the letter in October 2015 satisfies this. You would have also been sent statements that showed the charges applied to the account. You have also mentioned the reasons for the delay in raising the complaint. I appreciate you’ve said that you were affected by the financial crisis, but you have also mentioned that you made contact with Capstone during this time. In order for the circumstances to be considered exceptional, we have to believe that you were unable to make contact or maintain contact with the business or continue in your day-to-day activities. As you maintained contact with Capstone and Acenden, I can’t say that exceptional circumstances apply. An ombudsman will review this complaint Because you didn’t agree, an ombudsman will review the complaint and make a decision. That means: An ombudsman will consider whether this is a complaint we can look at, and make an independent decision. They’ll put the decision in writing to both you and Kensington Mortgage Company Limited, and explain their reasoning within the decision. If the ombudsman’s conclusions are different from mine, they will explain why and let you reply before they give you their decision. Otherwise, they won’t usually get in touch before issuing their decision unless they need more information. We should already have all the information the ombudsman needs to reach a decision. But if we need anything more from you, we’ll let you know. What you need to do now If you have any further points or information you’d like the ombudsman to consider, please send these to me by 12 December 2022. If you need more time to reply, please let me know before this date. If I don’t hear from you, I will assume you do not want to add anything. We will keep you up to date with our progress – but please get in touch if you have any questions. Kind regards Sorry if its a bit long winded but I didn't want to leave anything out. So it would appear that with regard to "knowing" means knowing about the charges and not knowing that you could have grounds for a complaint, seems a bit silly to me. If you have a mortgage you get an annual statement so why wouldn't you know about the existence of charges? Anyway, this being the case and the FOS not wanting to upset their buddies in the financial services the next step can only be court action. I know I am awaiting a decision by an actual Ombudsman (previous email were from an investigator) but this is a foregone conclusion I think. So if the FOS have (or are going to) bin my complaint is it even worth making a court claim, wouldn't the judge just rule in favour of SPML based on the FOS's findings? I'm happy to fight SPML but I don't want to throw money after bad, done enough of that already. Really wish I'd got my arse in gear with this now and if I could kick my own arse right now I would but I never realized there was a time limit for this!

So..... just got the letter that I have been expecting all along. They are saying they are not going to to anything about charges applied to our account that are over six years old so no real surprise there. One thing in the letter that caught my eye is a line regarding the rules on such matters that states "This rule states that you have up to six years to raise the issue that occurred with us, or three years in which you should have been aware of the fees and charges on your account to make a complaint" Reading this on moneysaving expert "The Ombudsman says you can reclaim fees from as far back as you like, as long as you make the complaint within three years of realising you could. " what Acenden are saying isn't correct. As far as timelines go, until a few months ago I had never questioned these charges on our mortgage with them, not once. The first mention of them from me is when I requested a breakdown of all of the charges to our account as over the years Acenden have been crafty with concealing charges. On your annual statement they would detail charges at one time. Then one year they stopped and just added them onto the balance total. So as far as time limits go, how on earth can they challenge you, claiming that you have known about the possibility of reclaiming these fee's for three years and over? I guess then the next step would be the FOS but ive had dealings with them in the past when reclaiming PPI and they were worse than useless.

To be honest its a fair point to say I should have done this a while back however two things. Firstly & mostly the wife has been desperately ill for the last six or seven years and she was always worried about challenging these charges while we were in arrears. I know you said in my original post that they cant take retaliatory actions but there was no convincing the wife of this. Anyway, whats done is done and I would hate to let them get away with this if there is a chance. Ive read a few things that say under certain circumstances these fees could still be challenged on both the FOS website and the FCA's. So is it really a dead duck? Another point is that I was always under the impression that as long as the account was live and not settled there wouldnt be a time limit?

Hi all, About 7 weeks ago I sent a letter disputing around £4615.00 worth of arrears management fees and other assorted fees to our lender SPML or at least their administration arm Acenden. True to form I received a call from them right on the edge of their response deadline from a lady from Acenden informing me that she is the one looking into my complaint and that she can only refund fees that are less than 6 years old. This sounds right even though it doesnt actually suit me my question is this. Is it possible to reclaim these fees by way of a small claims process? Surely they cant make a statute barred defence as the account is still live? If needed I can post a redacted copy of my letter to them together with a copy of the charges etc.... Many thanks, Chris

Morning all, Over the last three months we have started to receive regular letters and text messages from a DCA with regard to an old CC balance that is over 14 years old. I am 1000% sure this would be statute barred if push came to shove as we have had no direct contact with any company with regard to this in ten years or more. Although the letters and texts are not threatening in any way, just offering a huge discount to settle, they are getting a little annoying. So my question is simply this, can I tell them to sling their hook? I'd like to soooo much but know the golden rules with regard to no contact. Cheers

Hi all, Its been bugging me for a while but AW have been running quite a relentless and no doubt costly self promoting TV ad campaign. Bearing in mind that unlike other commercial entities AW is fortunate that is has a huge region of its own with no outside competition meaning that its customers do not have an alternative supplier. At the very least their adverts are not factual in every way as they always finish with a scene showing of a couple engineers working through the night in fowl weather to repair a leak when in reality they do the exact opposite. My point though (before I go off on a rant about AW's many misgivings) is this. As end users with no alternative supplier, is it legal for a company with no outside competition to use their customers money to self promote themselves? Even if they are using money from their profits its still coming out of customers pockets via their water bills. The adverts are not going to drum up extra business as their customers are basically captive and have no other options. Cheers, Chris

He wasn't confronted with evidence so to speak DX. I think the mediator passed on a message from Stonegate repeating that they have evidence. As I said I wasn't present so unable to assist him though I'm not sure how much help I could have been anyway.

Hi Dave, To be honest the biggest worry (the worst that could of happened) here was getting a CCJ for the reasons stated above. Even if a judge saw fit to only award Stonegate £100 it would still have been a judgement. You are right though to say he didn't know what he was doing. He had already replied to their letter by email offering to pay in instalments before I even got involved. I have now drilled it into him that in future anything like this whatsoever he does not reply until taking advice. At the end of the day he is 26 and knows no better but hopefully he has learned one important lesson, keep quiet until you know better. As for his fear of court, it seems possible that they may have had some evidence. In this day and age they can bring up till transactions so easily they could have probably produced a spreadsheet with something incriminating on it thereby planting the seed of doubt in anyone preceding over the claim. Like you said, whats done is done.

Hi all, sorry for the late update but work has been manic. So much for lockdown.......... This has now concluded. Not exactly the result I hoped for but my son in law is happy enough with the outcome. After a few phone calls between him, the mediator and Stonegate. They reached an agreement where all fees where dropped, legal and Unicorn food. The original balance was reduced as well but not by much imo, about £30.00. The main thing was to avoid a CCJ as they will need to remortgage at some point in the next few years. The other benefit (if you can call it that) is that they have gone from demanding full payment in one hit to paying it off at fifty pounds per month. So he now has to pay Stonegate fifty pounds for the next ten months. He could have gone to court I know but Stonegate claimed via the mediator that they had CCTV and till records showing him using his MORE card when he shouldn't have been and although he still insists he never benefited to the tune of £530 he believes they could possibly have something on him so took the safe option. Was this the right thing to do? I really dont know as mediation is something I have never heard of until this. Should he have gone to court? Personally I dont think so and he certainly didnt want it to just in case. Either way, as usual the folk on this site were a great help so thank you all for your input. I'd be interested to hear your thoughts on this outcome because I'm really not sure if he did the right thing but not being there when this all took place made it impossible to advise.

No Andy, only the EX730 so far.

Happy new year all!! My SIL received an EX370 today. I know he needs to sign it and return but what to do with regard to accepting their offer of mediation? By accepting it it becomes pretty much an admission really........ For the record, since filing his defense on Dec 21st he has had no further communication from the claimant and they have yet to respond on MCOL. My gut instinct would be to sign it and decline the offer and return but what do I know? If he had made a part admission then its a no brainer but as he's defending the full amount then I would guess he should decline? Chris EX730.pdf

Will do Andy, thanks again. Chris

HI Andy, Thank you so much, it really is appreciated. Chris

Hi Andy, Now you put it like that I guess your right, it wasn't a fair while ago. My apologies......

Just spoke to SIL, He left well before this came about and left because he had another job. This action (or the threat of it) had absolutely no bearing on him leaving, he was leaving anyway. As for him being aware of the audit, he had left before it took place and only found out about it when he bumped into someone that he worked with whilst there who told him about it. He didn't get contacted about if either verbally or in writing whilst he was an employee, only after leaving and around 10 months after leaving. I had an idea this was the case but phoned him to confirm.

Hi Andy, thought never entered my head. I was literally just asking. Fully understand

Just had a thought, can I use the fact that my SIL never got a proper letter before action? I'm guessing so as they failed in the pre action protocol dept?

Morning all, Can we cast an eye over this re-hashed defense please? 1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made. 2. Paragraph 2 is noted. The claimant has made a broad accusation towards the defendant and cannot seem to decide what exactly they claim the defendant has done. The claimant should be expected to clarify the following. (A) The use of the word stolen would infer that this is a criminal matter and not that of a civil matter. Also, the term unjustly enriched. Again, another term to imply an act of theft has taken place. Should the claimant have evidence to support such a claim then why was it never reported? (B) The claimant claims that the defendant failed to account. Had this been the case then the claimant needs to clarify how this came even to light? (C) The claimant claims that the defendant committed an act of deceit. The claimant would need to provide specifics to support such an allegation as without them it is again vague and speculative. 3. Paragraph 2 is noted. The defendant denies ever engaging in the practice of selling goods on behalf of the claimant and retaining monies for personal gain. Should the claimant believe this to be the case and the claimant has evidence to support their claim then this would surely be a criminal matter and not a civil matter. For this reason, the defendant contests all of the particulars of this claim on the grounds of it being vague and speculative. 4. Paragraph 3 claims that the claimant suffered a loss due to the defendant’s actions of £526.95 including the cost of investigation. As the claimant has only made an accusation without providing proof or evidence to the defendant, the defendant therefore denies owing any monies to the Claimant. As the Claimant has failed to provide any evidence of wrongdoing by the defendant, the Claimant is put to strict proof to: (a) show how and when the Defendant has taken payment for goods on their behalf whilst retaining monies for personal gain by way of proof. (b) show how the Defendant has reached the amount claimed for by means of a breakdown of losses and costs. 4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed. 6. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief. Cheers

Cheers DX, As stated, its just a draft and I always knew she wouldn't fly first time. I'll take your comments on board and have another stab. Don't worry, I will leave out number 2!

Afternoon all, Ive had a stab at a defense for my SIL. Its made up of sections from other threads but not being able to find any similar cases of CAG ive had to kind of wing it. Please have a look and let me have your thoughts if you can. Tell me whats wrong or needs leaving out or editing. 1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made. 2. Paragraph 1 is noted. Whilst employed by the claimant I have held a MORE card to which the claimant refers. |The defendant is however unaware of any of the alleged incidents to which the claimant refers nor has the defendant been given access to any evidence to support the particulars of its claim. 3. Paragraph 1 also claims that payment was taken and withheld for personal gain. This is denied and the defendant is unaware of any incidents to which the claimant refers to. 4. Paragraph 2 is noted. The defendant denies ever engaging in the practice of selling goods on behalf of the claimant and retaining monies for personal gain. Should the claimant believe this to be the case and the claimant has evidence to support their claim then this would surely be a criminal matter and not a civil matter. For this reason the defendant contests all of the particulars of this claim on the grounds of it being vague and speculative. 5. Paragraph claims that the claimant suffered a loss from the defendants actions of £526.95 including the costs of investigating the defendant. As the claimant has only made an accusation without providing proof or evidence to the defendant, the defendant therefore denies owing any monies to the Claimant. As the Claimant has failed to provide any evidence of wrongdoing by the defendant. Therefore, the Claimant is put to strict proof to: (a) show how and when the Defendant has taken payment for goods on their behalf whilst retaining monies for personal gain by way of proof. (b) show how the Defendant has reached the amount claimed for; and 5. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed. 6. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief. Many thanks, Chris

Evening all, Right, just spoke to my SIL at length..................... In response to Andy's question regarding T's & C's, that answer remains the same. The staff MORE cards and general public's cards both had the same T's & C's. As for when he started the unofficial swiping practice, his best guesstimate is around September 2015. Another development during our conversation, I asked him if he ever asked customers for their permission to swipe his card to claim their unclaimed points. He said he never actually asked but some regulars would forget their cards sometimes and tell him to take the points. Also, Stonegate would sometimes have promotions like half price food and drinks etc. However to claim the offer you had to have a MORE card. Again, if regulars had forgotten their MORE card he would use his for them to get the offers. I know this doesn't help his cause but in case its relevant I thought I'd offer it up. I have impressed upon him the urgency of this now so if any more info is required just ask and I will get it. Cheers

100% agree Andy, will try again. TBH, I did expect a little more info from him.

Hi all, So would you say that my SIL's Goose is cooked? (Pardon the seasonal pun) Chris