Abbey National Mortgage and how to value claim

[marylikes]

Hi,

 i've a couple of questions if thats ok.

 

I took out my mortgage in January 1989.

I've tried to understand what rules apply, when, and what don't.

I've found it confusing.

 

My mortgage was regulated under the CCA(1974). I think its known as a "Legacy CCA Mortgage". As such am i still afforded the protections of the CCA in regards to "Unfair Relationships"......... have i got that assumption right ?

 

And next question:

My mortage was for £13,375.69 @ 12.75% for 25 years. I was quoted and paid £118.69 .

Now , MIRAS needs to be taken into account and it was 25% at the time.

I've tried several calculators and still come up with a different figure to what i was quoted and paid.

 

Here is what i get:

A monthly repayment of £148.34, of which £142.12 is interest, remove 25% of the interest portion (i.e £35.53) that would leave an actual expected payment of £112.81.

 

So how accurate do the figures need to be or is near enough good enough ?

 

Many Thanks.

[marylikes]

Hi,

i'd appreciate any advice or help with this.

 

I'll set out what has happened and then i'll set out what i have done and intend to do:

 

I got a mortgage from Abbey National in January 1989,  purchase price of house was £13,950, i put a £700 deposit down. Mortgage advance was £13,250 plus a mortgage indemnity premium to make the total amount £13,375.69. This was a standard repayment mortgage over 25 years.

 

It has ran without issue (sort of), in as much as i have never defaulted or missed payments. No PPI or anything like that just a very straightforward repayment mortgage.

 

In 1997 (8 years into the mortgage) i found out quite by chance that my mortgage had approximately 10 years longer to run than i expected. Instead of my expected finish date of 2014, my finish date was now 2023. That is still the case today.

 

When i found out my mortgage had longer to run i demanded an explanation, and i got one. They told me that the interest rate had risen on completion of my mortgage and that i had infact continued to pay at the previous lower rate quoted. Also i had failed to pay my buildings insurance premiums and these had been debited to my mortgage account. They where the reason for the "term extension" of my mortgage.

 

From 1997 until 2002 i continued to write and phone call them about this and always got the same answer. I reluctantly conceded i must of done something wrong. Although quite how i could of got a payment amount wrong i don't know as i always went into the branch, asked how much i had to pay and then paid it over the counter. So this is still the current position of the mortgage today. It has approx a year to run before it finishes.

 

About a year ago i was clearing out all my old paperwork and before i threw out my old mortgage stuff i quickly Googled ...Abbey National extending mortgage term" and i found lots around this subject.

 

Briefly it appears Abbey did this to thousands of customers without their knowledge, just extending the term by 10 years or so , or in some cases more. I also read that FOS had been inundated with complaints over this and had ordered Abbey to put customers back in the position they would of been if Abbey had not extended their mortgages without their knowledge.

 

I also read that in 2007 the FOS had set a deadline where they would deal with no new cases after this time, and also Abbey had a dedicated team to contact customers affected and put them right.

 

i contacted their complaints department, now Santander. They outright refused to deal with my complaint on the basis that what i was complaining about happened more than 6 years ago. They referred me to FOS but also told me they would not give consent for FOS to look at it.

 

The FOS investigator concluded that he could not look at it as it was more than 6 years ago, i got a second opinion from an Ombudsman and they concluded the same. They concluded that when i found out about it in 1997, my correspondence from then until 2002 was just queries and i should of known something was wrong and made complaint then. So that was really the end of the matter for me, my complaint essentially dead in the water.

 

As this was going on i'd made a DSAR to Santander, and got quite a bit of stuff back as you could imagine. The first useful information it revealed was that my mortgage was initially for £13,375.xx , i'd always thought it was for £13,301.xx as that is what all my annual statements show. It also revealed that my mortgage had changed on 01/01/1993 to a term of 370 months and a start value of £13,301.xx .

 

The next useful thing it revealed was that my agreement was and is in fact a Consumer Credit Agreement, as per the 1974 Act and my completion documents show i had made extra interest payment in order to comply with the Consumer Credit Act.

 

i researched the Consumer Credit Act, its application to mortgages, and the FCA's helpful review of the retained provisions of the Consumer Credits Act in relation to mortgages etc...

 

 

I was now able to understand that my initial agreement to pay £13,375.xx over 25 years had now been replaced with an agreement to repay £13,301.xx over 370 months. This had been done unilaterally.

 

s82(1) CCA says ........Where, under a power contained in a regulated agreement, the creditor or owner varies the agreement, the variation shall not take effect before notice of it is given to the debtor or hirer in the prescribed manner.

 

The prescribed manner in this case is moot, as no notice was given at all. As far as i can see this agreement was prevented by law from happening ? I have already sent off pre claim notice to Santander over this.

 

Simultaneously i identified that in the same way as the NRAM/Northern Rock annual statements where incorrect (S77A CCA) mine are too. They do not include the original loan amount, they state £13,301.xx.  i have made complaint to them over this, they assure me their statements are compliant. The matter is now with FOS, as they are not able to charge interest for the periods of non compliance.

 

Further......... i submitted a S77(1) request for information in June 2022 and sent the obligatory £1 cheque. They cashed the cheque and denied having had the request. I still have not had the request fulfilled to date, despite complaints over it and them paying me £100 compensation for the delay. It appears they do not have a CCA compliant agreement, nor subsequent modifying agreement either. And apparently they may not hold the terms and conditions of any agreement either. Although they have not told me that yet, but if they had them then i'd of been sent them by now.  That has now gone to FOS as a separate complaint.

 

here is my question.

If i initiate legal action i.e Unfair Relationship, creating their own agreements etc... which they where not entitled in law to do. How would i put a monetary value on my claim ?

 

Would i just request all interest re paid to me? If so would i be entitled to simple interest or restitutionary interest , how would i value it ?

 

Thanks for reading.

 

 

[marylikes]

Just thought i'd update. I have now been allocated a FOS adjudicator to look into my complaint (mortgage statements not compliant with S77A CCA). I can't envisage this is a difficult investigation, they either comply or they don't. I'll update when i know more, but i would guess it will be very soon.

[marylikes]

Hi, i wonder if someone could help or advise.

 

I've still got no S77 request.

Is it possible for me to apply to a court to force them to provide my request ?

Would i use the small claims procedure, ask for the Court to order what i'm asking, but from what i can see you need to have a "value" to your claim ?

 

So could i just nominally say..."£100 compensation " ?

Is it possible to issue such a claim in that way or is there another procedure ?

[marylikes]

Hi DX, many thanks for response. Here is two links to explain what happened, then i will tell you what i know.

'We're sorry,' says Abbey National | This is Money

WWW.THISISMONEY.CO.UK

---

The mortgage bank has admitted blunders left hundreds of customers with home loans extended by as much as 13 years

 

Abbey Borrowers Face Lengthened Mortgage Terms

WEB.ARCHIVE.ORG

 

Now as far as i understand, the majority of those affected like myself would of had "unregulated" loans/mortgages. So there was a reliance on the Ombudsman to correct them and do what was "fair and reasonable" . How i got missed out i've no idea.

 

But where my own personal situation is different is that my mortgage is a Regulated Credit Agreement and that sheds a whole new light on it. Its not actually possible to modify a Credit Agreement like that without a Modifying Agreement.  The reason they will not answer my S77 request is that they will have to tell me that they do not have (1) an agreement and (2) a modifying agreement.

 

My ultimate intention is to take them to Court via the Unfair Relationship provisions and ask the Court to make the relationship fair and for them to terminate the relationship and remove the charge from my property. So although the window for redress through the Ombudsman scheme may have passed, as my account is still active and alive and not been in arrears or default ever i am still protected by the CCA. I believe that having it in writing that they have no agreements will put me in a strong position to negotiate with them rather than having to go through an expensive trial for an unfair relationship scenario. And of course i want to go through all the terms and conditions and have eye on the financials what i have borrowed, paid etc.....

 

I've been doing some more reading, from what i can fathom S138D of the Financial Services and Markets Act gives me the legal position to bring a claim for breach of duty ? That breach of duty is the duty obligated by S77(1) CCA. So that would be the basis for a claim ? That would cost me £35 to take them to Court to impell them to provide my request , does that seem right ?

 

[marylikes]

Thanks to both of you. Its really been getting me down, i've spent over a year researching this stuff. I seem to be getting shot down at every point either by my creditor or the FOS. The FOS have told me now that my statements even if they are found to be incorrect, they will only go back the last six years and not before that.

 

It initially seems a complicated case, but once you whittle through everything it really is a simple case. Althought the stakes are high. Its as simple as this : we have a consumer credit agreement that was not exectuted correctly and it was modified incorrectly too. The Consumer Credit Law and Practice- A guide by Dennis Rosenthal says the following:

modify.pdf

 

You are correct, this will probably end in a Court case. The price of bringing an action just on Court fee's alone is so expensive. Thats something i'm prepared to do, but before i do it i need to do as much work beforehand as possible to narrow down issues. At this point my creditor will not entertain me one iota.

 

I mentioned S138 FMSA above , thats moot really as i understand it it creates provision for an action based on a failure to comply with an FCA rule/handbook etc.... It would be simpler for me to just action for breach of duty, the S77 duty. Problem i have with that is generally i think i will have to claim a "loss", not sure how i would quantify that at this point, and obviously just in relation to that point only , nothing else.

 

The reason why i believe my S77(1) request is so important is that once i recieve the correct response it would almost make the larger part of my case for me. Here is what the request should provide, as explained by the Consumer Credit Sourcebook  (CONC):

CONC 13 - FCA Handbook

WWW.HANDBOOK.FCA.ORG.UK

 

 

I believe there is a wider Consumer interest here too. At this point my creditor does not need to supply me with some sort of signed copy of our agreement. They are allowed to hoof together some sort of copy of what i would of signed , along with the terms and conditions. That would satisfy my request. The S77 request is just for information purposes. Somehow they are unable to do that.

 

The Consumer (Agreements) Regulations 1983 sets out the form for what i should of signed for the agreement to be executed properly. I know for a fact i never signed one of those, it would have charge for credit, total charge for credit, APR etc.. i've never seen a document in my life from them like that. It would also contain my creditors name and address, in this case Abbey National Building Society. The reason i believe they have not complied is that they did not, nor ever have had any Consumer Agreement templates. In other words, they just treated every mortgage they got as an unregulated loan. The charge on the property and the application for a mortgage sufficed for them.

 

To fullfil the S77 request correctly would need them to provide a copy of the modifying agreement too, or say they do not have one. A modifying agreement also needs to comply with the same 1983 agreement regulations. In my case that will be fatal to them and their agreement as they do not have one. They could of course try to hoof one together for information purposes, but their name had changed at this point to Abbey National PLC. I'd doubt they even have a template either or even complied with any Consumer Act legislation at all. In my particular case they acknowledge it was all changed without my knowledge.

 

I'm certain my complaint to FOS over non compliance with S77 request will result in them telling me they are not a Court and cannot rule on unenforcability etc....But hopefully they will be able to decide that by not addressing my complaint in over three months is a problem. I've contacted the FCA, but sadly they are not a consumer facing body. I've give them my reports and they say they have noted them etc... but they are not answerable to me in as much as they aint gonna force my creditor to do anything.

 

My mortgage credit will run out soon, i havn't made a payment since maybe June this year. At some point they will need to send me a NOSIA.

 

So this afternoon i have done more reading and research. I have an idea. As frustrated as i am that they are not complying with a duty under the consumer credit act and no one seems to be able to help me unless i take the very expensive action and go to Court, i've seen this:

 

CCA 1974 as ammended:

161 Enforcement authorities.

(1)The following authorities ( “enforcement authorities ”) have a duty to enforce this Act and regulations made under it—

F1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)in Great Britain, the local weights and measures authority,

 

 

So, Google has led me to believe that the local weights and measures authority is actually what we call "Trading Standards". If i'm right they have a duty to enforce the Act. I'm going to contact them in the morning. Fingers crossed.

 

Any input gratefully recieved, i'd sooner fail here than in court. Thanks again.

 

 

[marylikes]

I knew this wasn't going to be easy, but i had no idea just how hard. FOS adjudicator asked me three question a few days ago. I thought they where bizarre:

 

[1] Please can you tell me why you believe the consumer credit act is applicable to your mortgage?

 

[2] Please can you confirm when and how you became aware your mortgage statements where not CCA compliant?

 

[3] Please can you tell me if there are any exeptional circumstances that prevented you from making a complaint sooner?

 

I answered back. Today recieved letter that basically the CCA will only generally apply to unsecured agreements and if mine is a secured agreement  then............... The adjudicator is waiting for a response from the business to find out about what type of agreement it is. So i've just told the adjudicator its a secured agreement and its a first charge mortgage  and they can get on and make their findings on that basis. There is literally no point in reviewing any of my complaint if thats the case. I'm certain they'll refuse me, probably before the week is out.

 

Not sure what will happen next if thats the case, appeal to actual Ombudsman for a descision or what.

[marylikes]

Thanks Andy, yes have copy of that. I have pointed the adjudicator to the FCA's own policy too:

 

CP15/36: Future regulatory treatment of CCA regulated first charge mortgages

WWW.FCA.ORG.UK

---

We propose rules for firms performing activities in relation to pre-2004 first charge CCA mortgages. Why are we issuing this consultation paper? Prior...

 

But i fear it will fall on deaf ears. I'll keep posted what happens next, thanks a lot.

[marylikes]

Ok so a lot has happened since my last post. I pretty much had a mini meltdown dwelling on what the Ombudsman said so far ...if my agreement was a secured agreement then it would not be regulated under the CCA. I've made complaint to the Ombudsman on the basis the investigator has no knowledge of the subject matter they are dealing with and also their 6 year arbitrary time limit has already been conveyed to me before they know what they are dealing with etc.... and more but i'm keeping this short. I'll have an answer by 1st December.

 

The reason i had a mini meltdown was that i realised if this complaint [failure to provide compliant S77A Annual statements] failed on this basis, then my complaint right behind it........failure to give a response to a S77(1) request would automatically fail too.

 

I've an admission to make at this point. I contacted a firm of Solicitors back in July with a outline of my complaint. They are a CCA specialist Solicitors who tout their high profile credentials, and the short story is they cannot help me. Another high profile CCA specialist Solicitor says........."CCA does not apply to first charge mortgages". All that is in keeping with what the Ombudsman has indicated.

 

I appear to be making more enemies than friends at this point. I also need to take a step back and consider a couple of things so far.

[1] Either me as a manual worker with no trained financial or legal knowledge knows or is aware of more things than specialist CCA solicitors and the FOS service , or ........

[2] I've got myself into some sort of fixated, delusional syndrome and i need to stop.

 

What i have decided to do (and have done), is approach Direct Access Barristers (Counsel) for a written evaluation and advice of my potential claim. It is expensive outlay but could save me a lot of money in the longrun. If it comes back in the negative then i can put the matter to bed and i've lost a relativley small amount compared to if i pressed on and incurred legal costs through failing. If it comes back in the positive then i will be able to put that advice to my lender and hopefuly should force them to negotiate with me. Or failing that i can make an informed desision wether to do it myself as a LIP or engage a Solicitor armed with what i have.

 

I feel i have the potential to unwind the whole lot, with interest. That would be circa £34k over 34 years, so the potential is high. Let you know as i go........... Thanks for reading.

[marylikes]

Hi again. The first barristers i contacted could not act for me as they would be compromised (my lenders Barristers!). Second one i asked gave me a fixed quote for advice , i wanted written advice they offered me a conference and conference notes. Price was eye watering to say the least. I have a private recommendation for another one, but i discovered a sticking point that i'd like to iron out for myself first. Someone here may be able to help, i can only ask.

 

Its a simple question really, but hard to fathom out : "was my agreement regulated by the Consumer Credit Act at point of execution" ?

 

Well it ticks all the correct boxes, it was under the £15k threshold at the time and its a personal debtor /creditor credit agreement. However , S16 (Exempt Agreements) of the CCA says :

 

(1)This Act does not regulate a consumer credit agreement where the creditor is a local authority or building society, or a body specified, or of a description specified, in an order made by the Secretary of State, being—

(a)an insurance company,

(b)a friendly society,

(etc)

 

That is the CCA Original (as enacted), so on the face of it as my Creditor was a Building Society my agreement is exempt from the Act. My agreement was executed in January 1989, incidentally my Creditor ceased to be a Building Society as of July 1989 (they converted to PLC) , so if the agreement had of been executed after that then straight off it would not be an exempt agreement.

 

Here is my problem. On the legislation.gov website it does not track the changes over time, so from the original as enacted we jump to how it was at a point in time, in this case 1991. Here is what it (S16) says in 1991:

 

(1)This Act does not regulate a consumer credit agreement where the creditor is a local authority , or a body specified, or of a description specified, in an order made by the Secretary of State, being—

(a)an insurance company,

.............<snip>

(g)a building society

 

So we can see the position has changed dramatically for Building Societies, to be exempt they need to be specified in an order, such as the Consumer Credit (Exempt Agreements) Order 1989 for example.

 

I can track how the change was made, it was made here :

Building Societies Act 1986

WWW.LEGISLATION.GOV.UK

---

An Act to make fresh provision with respect to building societies and further provision with respect to conveyancing services.

 

What i am unable to work out is exactly when that change was made. Any advice as to how i find out when that change was made ?

 

[marylikes]

I'm going to answer my own question here a bit , i think. The Legislation.gov site shows changes since 1988. The wording of the Consumer Agreement exemption regulations changes quite a bit between 1985 and 1987 and i can see "building Societies" getting a specific mention in the later ones. I'm confident the change was around 1987. Can't be before 1986 as it was changed by the 1986 Building Societies Act .Looks like i can get the info from The Law Society.

 

Hold on, got it just as i'm reading , and typing this. That change was brought in by the Building Society Act 1986 on July 1986. And there is no Abbey National Building Society excluded in any Order i've found

[marylikes]

So the Ombudsman said they would reply to my complaint about their investigator by 1st December. Nothing so far. In the meantime i'd contacted my lender again and set out the legal basis for my claim, they won't engage with me at all. They just state they are assuming the same position : they will not communicate with me and i should liase with my FOS adjudicator. Even though my claim is not related to what i have complained to FOS about them.

 

Trading Standards have been in touch again, i have a reference number and they may get back to me for more information. Thats twice they've been back in touch with me , i was suprised by that really.

 

So fingers crossed for reply from Ombudsman, i'm just trying everything before i have to press the "nuke" button and fill out the Court forms. Time is running out for S78(1) request too, i've waited 6 months for it as it is. The agreement has 11 months left to run before it concludes. I'll have to make a descision soon.

[marylikes]

Ah, poor me. S78 request, i got all mixed up

[marylikes]

Just an update with good news really, although i still may have a way to go:

 

I have been allocated a new investigator, they have decided that as regards my complaint over non compliant statements (S78A) since 2008, that this is something they can look at. Short story, it is not reasonable that i would know about this stuff, or should know. My lender has not agreed and said 2008 is too long a time to go back. My lender had until 22nd this month to disagree or it will go ahead without them, i'm unsure of what they have done at this point but i guess i'll find out soon. Thats a short version.

 

Next: my S78(1) complaint is being dealt with too by same investigator. This sort of all ties up nicely together really as there would seem to be no point in my lender trying to defer dealing with statements when they will have to deal with this too, and they had a similar deadline for this complaint too and no way out of it . So i'm certain this one at least will be dealt with and have an outcome before the end of January, probably well before.

 

I feel a little bit lucky here because if my mortgage had of been for over £15K i would of had an unregulated loan and non of the CCA protections would of applied to me. Another clue (for me at least) that everything is going to work out fine for me is the fact i have not made a payment since at least June i think, and to date they have not asked me for one despite me asking when my next payment is due and how much i need to pay. Of course too, they will need to issue another (non compliant i assume) annual statement by mid January, so not sure where that leaves their train of thought?  This tells me that they are now looking at the matter with some seriousness.

 

Looking forward to 2023 and see what it brings me, Happy New Year to you all.

[marylikes]

Ok, got my answer back from investigator today. Complaint (S77A Annual statements) was not found in my favour. Reason being that my creditor provides :

 

Details the date the mortgage started, balance outstanding, monthly payment and payment date.

The summary also gives a figure for illustration purposes about the Early Repayment Charge (ERC) and the repayment fee.
 I think this information would allow most customers to have an overview of their mortgage account and allow them to make informed decisions regarding this.vAlso says i have not been affected financially by this.

 

I've asked for it to be elevated to an actual Ombudsman, that will take a few months more. So i'm not holding my breath over this.

 

 I've told them i had an agreement for £13,375.xx over 25 years starting 1989. I don't recognise an agreement for £13,301 over 31 years starting in 1993, therefore its incorrect..and i have been financially impacted by paying interest i am not liable to pay etc.....

 

The investigator cleverly does not raise the issue of incorrect amount for credit, nor length of agreement. Pretty fundamental in a consumer credit agreement i would of thought.

 

I was pretty deflated over that as i was certain it would be found in my favour, my only fear was they would offer a lesser amount than i expected. So i got that very wrong.

 

My other complaint by same investigator still needs an outcome, that is failure to respond to  a S77 request.

 

No idea now whats going to happen with that, and maybe that fact that this simpler complaint has been left later may be poignant. It would reveal what should be on the statements................

. I am awaiting the outcome of this any week now.

 

In the meantime, my mortgage payments for last year where approx £65 PM, i never paid since June as i was in credit.

 

I've had a letter to tell me that my new payments are now £96 PM starting 23rd Jan. The agreement concludes in November this year so i must owe about a grand. I'm not going to pay a penny more so they will be forced to take me to Court for it. I think realistically that my only and next option.

 

Also, another point i have picked up on. Whenever there is a variation in the interest rate my lender just sends me a letter telling me what my new monthly payment is. So thats what i pay. At no point have they ever told me a variation in interest rate.

 

My understanding is that S82 (CCA) impels them to let me know the variation in interest rate, and that it cannot take effect until they do. I'm gonna run with that as a new complaint too. There maybe something in legislation that allows them to not tell me, for example if they publish it somewhere or other but i guess i'll find that out by asking them?

 

Not sure how i havn't just give up at this point, i'm finding it so hard, so stressful and seemingly getting knocked down at every twist and turn but a thousand pound is a thousand pound, may not be a lot to some but it is to me.

 

The harder i try and fail then the higher my expectations go and i'm doing everything possible to avoid taking them to court, if / when i do i want everything back they where not legally entitled too............ probably £36k with interest over 34 years.

 

I realise i'm just venting here but boy do i feel ripped off.

And, i'm not the only one.

[marylikes]

I've had a thought and i'd like to run it past the collective as it may hold a wider interest and i'm sure someone will let me know if i've got something wrong in my assumptions:

 

Buildings Insurance: It was and probably still is, compulsory to have it on a mortgaged property. My lender required me to get it myself and if i didn't by say...1st April, they would provide it and debit me with the amount. For the sake of example lets say the insurance premium was £150 for the year. They would debit my account for £150 and i would just pay it back subsumed into my original agreement.

 

I can't see how this provision of £150 credit escapes the Consumer Credit Act. It is £150 of restricted use credit, and its undocumented. It is still subject to the S60 requirements? My agreement was for a fixed sum credit agreement, so its not possible to "shoehorn" an extra £150 in to this agreement year on year either ?

 

Any thoughts ?

[marylikes]

This is getting much worse for me. Complaint to Ombudsman............. S78 request for information not complied with at all, not one iota. Since June last year. Got my decision today from the investigator:

Complaint:

 

Quote

says they delayed
request for information about their mortgage statements.

 

 

Here's the outcome:

Quote

After reading all the evidence and arguments submitted by both parties, I think the £100
offered for the distress and inconvenience is fair and reasonable to cover the mistakes B
is responsible for. So, I won’t be upholding this complaint or asking B to take any other
action but to pay the £100 offered if not done so already.

 

It shouldn't be this hard to get a S78 request . Not sure why the investigator appears so obtuse. I told them specifically it was a S78 request, i paid £1 and i still havn't got it. Its like they just answered a complaint i didn't make.

 

So, i'm out of options now. This will now drag on for ages as i go back and forth with the ombudsman again. My last option , and its the only thing i can do now is sit back, don't pay and let them take me to Court. And it won't suprise me one iota if they don't even do that.

[marylikes]

All change again. I've pointed out that a decision appears to have been made about something i didn't complain about. I reiterated my complaint. Sent further proof that my lender has not closed the complaint , nor dealt with it. So the complaint is still activley being looked at .

 

Related: On Twitter there is an elderly lady, aged nearly 80 and all she does is post about how they have scammed her too in the same way. From reading her posts it looks like she now has a brief on the case. From what i can see, she doesn't have a Consumer Credit Agreement, where i have.

 

I'm mulling over wether to try contact her and see if there is anything we could do as a collective. Although , really me contacting an elderly lady about her mortgage somehow just seems off.

 

I'm going to see what it is possible for me to do with the FCA, if they see there is a few of us slipped through the net they make take a positive action. There will be more in our position i guess. But probably all in that age range of 60 years old to 80 years old if they havn't died or moved.

 

*Apologies. I keep stating S78 in my posts. Its S77. I've got it correct in my correspondance and complaints, but for some reason keep saying S78 here. Heads fizzled  !!

 

Email address on her website didn't work, i've left a voice message to get in touch. I've added a caveat that i'd like to speak to her about the same shared problems we are having but that i am not asking for any personal information, and if she is happy for a phone call i would sooner it be done in the presence of a younger family member, so as to be assured she is not speaking to scammers etc...

 

For the avoidance of any doubt, this is who i have contacted. Its a public profile, who says a lot.  I hope or expect i havn't crossed any line here as to what is acceptable. I'm just trying to be open and transparent:

 

https://tinyurl.com/2p9a44pz

 

 

 

Not sure whats happened here and i've no idea how to shorten it. But as you say, include a twitter handle in your post !!

 

Edited January 27, 2023 by dx100uk
whole twitter page converted to tinyurl

[marylikes]

I wonder if some could help me understand some legal jargon please, i'm not sure i understand it and i just have a few days to get my last submission to the Ombudsman over my statements.

 

From 2008 my statements had to be CCA compliant. This ended in 2016, they had to be compliant with MCOBS after that (2016 date).

 

The sanction for non compliance via S77A is as follows :
 

Quote

 

(b)the debtor shall have no liability to pay any sum of interest to the extent calculated by reference to the period of non-compliance or to any part of it; and

(c)the debtor shall have no liability to pay any default sum which (apart from this paragraph)—

(i)would have become payable during the period of non-compliance; or

(ii)would have become payable after the end of that period in connection with a breach of the agreement which occurs during that period (whether or not the breach continues after the end of that period).

 

 

 

The FCA changed the rules and the law regarding this matter (annual statements) like i said in 2016. They say the following:

 

Quote

Annual statements under MCOB 7.5 will replace the annual statements provided under s.77 CCA, The s.77A sanctions for non-
compliance will fall away subject to accrued rights and defences being preserved

 

So my question is.... exactly what does "accrued rights and defences being preserved" mean ?

Does that mean if there was no entitlement to charge interest during the period of non compliance , that that situation still persists ? The right to that has not diminished or gone away ?

 

I have Googled it, but to be honest i don't understand exactly the results i am reading as its mostly in "legalese" ?

[marylikes]

DX100UK , thanks for this. I totally missed this point and focussed on other things.

 

I might get lucky here as the Ombudsman is satisfied that this is something they can look at under the FCA DISP rules. Its just that the investigator so far is satisfied i had no financial loss due to these incorrect statements. I have until 3rd February to give any further submissions as the case has been passed on to an Ombudsman for a decision.

 

Sure enough i have a few "arrears fees" of £35 added to my account if i made a late payment. I'll keep updated how this goes.

[marylikes]

Things are moving a bit now.

 

My S77(1) complaint that was initially refused, then gone open ended has now gone to an Ombudsman for a decision.

 

My lender has stated this to the Ombudsman:

 

...the customer seems to refer to the Consumer Credit Act 78 and 77 throughout his complaint....the mortgage does not fall under the CCA regulation, it is bound by MCOB. As mortgages are variable interest rates and not a fixed loan, they do not entail a “credit agreement”`...

what does the customer feel he is missing out on and what is the relevance of the information? Perhaps we could assist him in another way or provide the information he needs in the format he needs it. Right now, CCA does not fit into this scenario....
aside from the initial delay, I feel we have assisted the customer in providing as much information as we could.

 

Its not Santander Complaints that deal with me BTW, its their "Risk and Compliance Division ". I probably need to do another two DSAR's.

 

Also i have told my lender by letter i am not paying anymore money to them, and the next move is theirs. That may be the smartest or dumbest letter i ever sent, i guess i'll find out.

 

Oddly , i'm not in arrears, i'm still in credit. My agreement should conclude in November this year.

 

Some random stuff from Santander :

 

what does the customer feel he is missing out on and what is the relevance of the information? Perhaps we could assist him in another way or provide the information he needs in the format he needs it. Right now, CCA does not fit into this scenario....
aside from the initial delay, I feel we have assisted the customer in providing as much information as we could. I shall summarise below, when the information was provided.

 

 

6) What I still have left to pay-Why is the customer requesting this? He is aware of the outstanding balance as it is contained on his mortgage statements he has received. There is no doubt he has received them, as he has referred to them in his original complaint.. 

 

 

2)T&C’s – This would have been issued at the start of the mortgage. From my investigations, I cannot see that it has been requested throughout the complaint journey. The customer may be under the impression it has been requested if he is assuming it’s covered under the CCA 77/78 request, but as mentioned above, his mortgage does not come under this act. A copy of the T&C’s have been provided to your service previously.

 

 

[marylikes]

Different tack from them today as both complaints wind their way to an Ombudsman:

Quote

Section 77 focused on fixed sum credit agreements and an annual statement. This is now captured within MCOB 7 and looking at the customer journey, I feel we have more than fulfilled our requirements under S.77.

 

I think they are going to have to make their mind up one way or another. Seems  contradictory to me?

 

This probably comes after i contacted them last week to ask them why the Ombudsman investigator was told i don't have a credit agreement with them, but i was never informed of this fact.

[marylikes]

Anyone any thoughts on this ?:

 

S60 CCA 1974 lays out the form and content of agreements. I'll not copy and paste them as you probably know them and i havn't got an executed CCA agreement with them anyway . Its an improperly executed agreement and i'm well aware of all the ramifications that go along with that. It may be unenforceable, even irredemably unenforcable, but a debt still exists and they have a charge on my house  which they will not remove until the debt is paid.

 

What i do have though is my mortgage application form from August 1988, its four pages so i've not bothered up loading it. Its just a standard Building Society type application form. What i also have though, is my Mortgage Indemnity Guarantee information and my completion letter. I'll upload them.

 

What has caught my eye during my research is CCA 1974

105 Form and content of securities.

(1)Any security provided in relation to a regulated agreement shall be expressed in writing.

(2)Regulations may prescribe the form and content of documents ( “security instruments ”) to be made in compliance with subsection (1).

 

There are various other provisions, but the important ones to me are where it says the "security instrument" needs to comply with the prescribed regulations. If it doesn't then its an improperly executed "security instrument" .

 

Also (6)Subsection (1) does not apply to a security provided by the debtor or hirer.

 So that rules me out, the form and content does not apply to me. Also if that MIG form i attatched is their "security" then its non compliant with CCA, but i would imagine its only Sun Alliances problem, not mine.

 

The Consumer Credit (Guarantees and Indemnities) Regulations 1983

 

106 Ineffective securities.

Where, under any provision of this Act, this section is applied to any security provided in relation to a regulated agreement, then, subject to section 177 (saving for registered charges)—

(a)the security, so far as it is so provided, shall be treated as never having effect;

(b)any property lodged with the creditor or owner solely for the purposes of the security as so provided shall be returned by him forthwith;

(c)the creditor or owner shall take any necessary action to remove or cancel an entry in any register, so far as the entry relates to the security as so provided; and

(d)any amount received by the creditor or owner on realisation of the security shall, so far as it is referable to the agreement, be repaid to the surety.

 

S106 is quite "broader". "any security provided" and as i provided my house as security it applies to me?

 

The Consumer Credit (Agreements) Regulations 1983   set out what should be included in my S60 Agreement.

 

S21 (Security provided by the debtor)

21. All types except those referred to in paragraph 20 in relation to which any security is to be provided by the debtor to secure the carrying out of the obligations of the debtor under the agreement.    A description of the security to be provided by the debtor in relation to the agreement sufficient to identify it and—
(a) a general description of any stocks and shares (including any right to become a stockholder or shareholder) to which it relates; and
(b) in any other case a description of the subject matter to which it relates.

 

So it looks like we have an ineffective security ?

 

I'll do a S110 CCA request first thing Monday, along with the obligatory £1 cheque for a copy of any security instrument executed in relation to the agreement after the making of the agreement.

 

 

 

 

 

 

mortgage1989.pdf

Edited February 24, 2023 by marylikes

[marylikes]

I'm going to keep going and update this as i go along. As secured loans are not something anyone seems to know about, then what i impart may be valuable , or not.

 

I've done a S110 CCA request to my creditor. In brief it requires they send me details of any security "after" the making of the agreement. (my high light).

 

I've shown in document above, my agreement for a MIG (Mortgage Indemnity Guarantee) is actually invalid as per CCA. I'm not going to dwell on that issue, as its a side issue of many.

 

Fortunately i hold all my mortgage documentation, it was sent to me about 7 or 8 years ago as everything is "digitised" now. I am the registered proprietor of my property and my lender has a "legal charge" over the property. My understanding is that this is not what we call a "Legal Mortgage" its an "Equitable Mortgage". If it was a "legal mortgage" they would be the proprietor.

 

S177 CCA provides :

177 Saving for registered charges.

(1)Nothing in this Act affects the rights of a proprietor of a registered charge....

................ etc.

 

So i've looked at this in detail. I can find nothing to suggest i have signed anything on the date of the agreement, or after the date of the agreement. Infact my creditor will rely on "applications" etc...

 

As a point of fact :

This is an extract from Scott Vs. Southern Pacific Mortgages in 2014

"In the case of property purchase if a mortgage Deed is signed by the Mortgagor before they are the legal owner of the property. The Mortgagor does not have the right to grant any legal or equitable interest in or over the property before they become owner of it".

 

I think i have a charge that can be removed. And as above i think i have paid for a MIG that has no validity either. I'm sort of going well beyond my comfort zone now as the stakes are so high. My attempt at self help has realistically got me no where. Granted i feel quite knowledgeable over the subject, but nothing is happening for me. I'm no further along with my creditor.

 

I've spoken with Nationaldebtline today, they can't advise me any further.

 

They've advised further outlets to try and suggest i keep up my repayments in the meantime. I'm not going to do that. I'm just going to keep on trying at this point and reaching out for help. I probably should of done this long ago, but i am where i am. Problem i have got is, no one has sent me a letter yet to tell me i owe anything. The minute they do i'm gonna walk in the office of ShelterUK.org in my underwear and ask for help not to lose my home.

 

As ever , i'l keep you updated. If i don't i'll have a gagging order !!!!

[marylikes]

Got provisional desicion from Ombudsman today. Couldn't be any worse really.

Quote

xxxxx   mortgage began in 1989, before residential mortgages were subject to any
form of regulation. Mortgage regulation was introduced in 2004, but not via the CCA. Rather,
when the FCA introduced mortgage regulation, it did so via the Mortgage and Home
Finance: Conduct of Business Sourcebook (MCOB).
Mrs and Mr xxx  believe their mortgage statements are missing key information, but by
invoking the requirements of the CCA they’re applying the wrong test. The mortgage
statements they’ve received from Santander since 2008 meet the requirements set out in
MCOB, in the form prescribed by the FCA as regulator, and so the issue of non-compliance
with the CCA doesn’t arise.

 

 

About as far wrong as you can get, but still i have to rely on them. I've gave a reply. Unless i get a change of descision before 20th then that will be it, its off to Court then. I've still not had an ask for payment but i guess that par for the course whilst we deal with "mediation" . Lets hope i done my homework correctly.