Abbey National Mortgage and how to value claim

[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.

[BazzaS]

Excuse my ignorance of detail of law regarding mortgages, but I don’t know why the Ombudsman is wrong.

Since they’ve set out their reasoning (as to why MCOB and not CCA applies), on what basis is this wrong?, and since it is a provisional reply, can you point this out to the Ombudsman?

 

If you do go to court the mortgage company may highlight the Ombudsman’s reply over this, so you are going to have to be able to show why this approach is incorrect to either or both of the Ombudsman and the court.

[marylikes]

I've already pointed this out to the Ombudsman that they are wrong. I've done it again last night.

 

The FCA and the FOS done a consultation in 2015 on the Future Regulatory treatment of CCA regulated first charge mortgages. Its here : https://www.financial-ombudsman.org.uk/files/1714/cp15-36.pdf

 

extract:
 

Quote

Overview
Introduction
1.1 Prior to 31 October 2004, first charge mortgages were regulated under the Consumer Credit Act
1974 (CCA) if they fell below the relevant financial threshold. In November 2015 the Government made legislation which will make the administration of these mortgages a regulated mortgage activity from 21 March 2016 and the CCA will then no longer generally apply. This consultation paper sets out our proposed rules for firms administering or performing activities in relation to variations of these mortgages, which we refer to as ‘pre-2004 first charge CCA mortgages’.

 

MCOB is literally "Mortgage Code of Business" rule book for lenders. If as the Ombudsman asserts......"my mortgage has come under MCOB since 2004"  (not verbatim) it would make that consultation a moot consultation, its at odds with what the Ombudsman has said.

 

As my agreement is a Regulated Consumer Credit agreement, regulated by statute and provided with protections and information requirements then no "Code of Business" can remove them protections. It is not possible to circumvent the requirements of the Consumer Credit Act in such way.

 

What MCOB has done since 2016 is allow lenders who do not hold Consumer Credit permissions to administer these mortgages as a Regulated Mortgage Activity.

 

The West Brom Building Society seem to know this too, for example they say:

"Please note, if you have a mortgage regulated by the Consumer Credit Act your statement will contain additional information."

Your annual mortgage statement explained | the West Brom

WWW.WESTBROM.CO.UK

---

A clear and easy breakdown of your annual mortgage statement explaining everything you need to know about your mortgage.

 

[marylikes]

CCA 1974 S110 Request recieved by them 2nd, March. £1 cheque cashed , or rather cleared today. So i'd assume they have accepted it as a valid request. 12 working days they have, so i'll not have to wait long.

[marylikes]

No sooner i posted just had decision from Ombudsman on my S77(1) request . I'm just about to reject it. I'll post the DRN when i have it.

 

Briefly: My lender was fair and reasonable by sending me an application form, completion documents and acceptance  .

 

Also a breakdown of total payments i.e capital and interest paid.

 

"Your mortgage started on 23rd January1989. The amount of capital you have paid to date is £11698.10 and the amount of interest is £23178.54 "

 

I note the Ombudsman dealing with my annual statements was quick to try and invoke MCOB requirements as all my lender needed to do.

 

But for this complaint they have not seen the need for them to comply with CONC requirements.

[marylikes]

Can someone please help me understand the Court process.

 

I'm aware i can make a claim against my lender via a few options, but in any case irrespective of the merits or otherwise i would make a MoneyClaim, eg: Unfair Relationship, spell out what i need to spell out and ask for an amount i want to ask for. In this case it would be rescission of the contract.. so £34k with interest, whatever that come to... say £50K. So i pay a court fee for a £50K claim.  I think i got that understanding correct ?

 

If my lender takes me to Court, i've two options defend or defend and counter claim.

 

If i defend, and i am confident over this. Then if a Court found in my favour they could agree i owe no more money and squash the lot. However this option would leave me getting nothing back unless i ask for it.

 

If  i defend and counterclaim, i would ask for rescission of the contract. Do i still need to pay a court fee?

 

In short is there anyway around paying what seems to me to be a £5k plus court fee  ?

[honeybee13]

I'm no legal expert but it looks as if a £50k case goes to multi-track. With this and fast track, if you lose you can end up paying the other side's case. If you google this title, the CAB has a pdf leaflet.

The fast track and the multi-track in the civil courts

HB

 

[marylikes]

Thank you for your words HB . I already realise this. I'm prepared for this..

 

I contacted a few for direct advice as a result. They say: we wouldn't be able to provide AFE insurance for such a claim etc....... And in short, they would go nowhere with it.

 

Here is what i have decided to do and how i intend to go about it......

                I'll do more tomorrow, its late and I'm tired.

[marylikes]

OK, so both my complaints not been upheld. I realise its probably a standard winge from people when a decision doesn't go their way, but i've two complaints for the Independant adjudicator. And i do realise their remit.

 

My last decision is so bad, don't worry i'm not going to replicate it nor name the Ombudsman involved because it is that embarrasing , but i'll guarantee it will not get published as it has been sent to me. It will either be changed or looked at afresh. So, i've a fortnight or so to go before i hear back from management before i can go to the assesor.

 

Countdown now for next move from my lender. Nine days time will see three months with no payment made, and no request for payment. Also our mediation is now over and finished.

 

I have managed to work out that if a Court did find in my favour, not even the whole way but just part way i.e 10 years payments which would comprise of the first ten years as its all practically interest. If it was compound, and there will be a good case for it, as its not a general MoneyClaim, then the sum returned could be in excess of £60K .

 

Thats what i am working on now in more detail, i'm quite confident over most of the other stuff. Depending on what happens next i think i will widen my search out for other people affected by them in the same way. Suprising as it may seem, the figures for pre 2004 loans, not all will be CCA of course, runs into the thousands.

 

Might try "Rip off Britain" for a bit of publicity over the matter.

[Andyorch]

Following with interest Mary despite the lack of responses from users 

[marylikes]

Check out what has just been posted on my profile. I really do think i need to widen the net out further, maybe create some sort of self help advice/ information sharing or whatever.

 

I've been trawling Facebook and some of the things done by my lender are brutal and they'll get no quarter from me. On that note, i'm aware the FOS do trawl social media for anything about them. They tell you this on their website (privacy policy) using Orlo software. My lender probably does similar.

 

To be honest my complaint to them about the service i received from them was absolutely scathing. As they have a legal obligation to publish their decisions i challenged them to publish the decision they sent me. And i'll eat my hat if they do publish it. My case handler usually confirms receipt of my emails, not this time. I'd be pretty certain they have been told not to engage with me any further.

 

What i have found very telling as i've trawled through all the decisions, is that there is non either upheld or dismissed at all about this issue. Actually there might be one, i'll try find it. But anyway, they should be flagging up as an issue for the FOS to alert the FCA that something is still not right ?

[dx100uk]

12 minutes ago, marylikes said:

Check out what has just been posted on my profile.

what profile where?

 

dx

 

[marylikes]

HI DX, my profile here. Click on my username and scroll and see what has just been posted to me.

[marylikes]

I have today recieved my S110 request, the letter is dated 7th March,2023.

It is headed   "Data Protection Legislation Consumer Credit Agreement"

 

we've now compiled a search of our systems. We can confirm that this mortgage was not regulated by the Consumer Credit Act and therefore does not have a credit agreement.

 

Thats good, at least we know where we stand. I'm away for the weekend, have a good weekend all. I'll deal with this when i'm back.

[marylikes]

the above response was not signed or sent to me by a named person. it just signed off "Subject Access Request Team" .

 

What i found unusual is that my request was sent to "Mortgage Operations" and not the SAR team. Also i wouldn't of thought it was within the SAR teams remit to decide who regulated my mortgage? Further, if my mortgage was not regulated by the consumer credit act, what exactly where they searching their systems for ?

 

Also, and its just part of the reason why the Ombudsman will probably not publish my descision is that the Ombudsman has unwittingly referenced this in his descision. He is supposed to be looking at something else. Just how he would know about my S110 request, i've no idea. He was supposed to be seeing if my statements where S77A compliant or not.

 

Its also the same Ombudsman who decided the other ladys complaint about my lender was "historic" and could not be looked into.

 

It appears to me that the Ombudsman does more than just get a file about your complaint, they also seem to be sharing live at the minute info on correspondance that is unconnected to your complaint.

[marylikes]

I thought it would be helpful to add what was posted to my profile, to make for an easy read:

 

"I only came across this today. It seems I am in a similar situation to yourself. I took out my mortgage with my husband in 1982. I have been questioning my interest payments and payments for a while now and it was only in 2017 that I was informed my Mortgage with Santander was changed in 1993 and extended from 25 years to 43. I also copies of my account showing I was on interest only for months and capital payments for 201. Paper work is everywhere. I am still trying to get my head round it and I also have a complaint with FOS. I will let you know how I get on. Obviously, Santander didn't get through to all their customers. I am attaching a couple of files for you to look at too. I discovered them when I was searching the internet for any information I could get. The other one is ombudsman news issue 43. ombudsman news issue 35.pdI couldn't add that one as the total size uploaded was too big. "

[marylikes]

Exhausted the Ombudsman complaints process. I'm now going to make complaint to the Independant Assesor. Santander also wrote to me and told me now the FOS process is exhausted they will not entertain any more discussion over any of my complaints. They've still not asked me for a payment yet. FOS has told me the same, no more discussion.

 

Some snippets from my descision:

 

"Our decisions are published, and it’s important that I don’t include any information that might result in Mrs and Mr C being identified. Instead I’ll give a brief summary, and then focus on giving the reasons for my decision. If I don’t mention something, it won’t be because I’ve ignored it. It’ll be because I didn’t think it was material to the outcome of the complaint.

Mrs and Mrs C made a subject access request (SAR) of Santander under the General Data Protection Regulation. They’ve raised a separate complaint about how that was handled by Santander and I understand a fellow ombudsman is dealing with that. Following the SAR, Mrs and Mr C brought this complaint."

 

I pointed out that the FOS does not deal with GDPR, and if i had a complaint over a SAR i would go to the ICO, not the FOS..., also i've not had a complaint about any SAR.  Fell on deaf ears .

 

"Credit agreements that are regulated under the CCA have a clear narrative on the first page saying just that. Mrs and Mr C’s original mortgage offer from 1988 contains no such narrative, simply because it wasn’t ever a regulated agreement under the CCA. The fact that the starting balance of the mortgage in 1989 was below £15,000 is not a factor in whether it was regulated by the CCA.

 

First charge mortgages are not regarded as consumer credit for the purposes of the CCA, and were never included in its scope. So the question of exemption doesn’t arise; an agreement can’t be exempt from something it was never covered by in the first place.

For the avoidance of doubt, regulation of first charge mortgages, like the mortgage Mrs and Mr C have, began in 2004 under MCOB, and applied retrospectively to mortgages already in existence. Nothing I’ve seen in the evidence from either party gives me any reason to find that Mrs and Mr C’s mortgage statements aren’t MCOB-compliant."

 

I've a way to go yet, i reckon this is just the beginning.................

 

 

[marylikes]

I asked the FOS to explain to me about the document they host on their own website entitled "future regulatory treatment of 1st charge CCA mortgages" and i got back........... if you need to make a claim against us you need to follow the correct pre claim procedure,... etc  and then got given address for service of legal documents/claim etc..

 

Thats a free and impartial complaint resolution service that offers an alternative to going to court.

[marylikes]

I was going to bang on about the FOS, but i realised this is not the time or place to do it. There is a separate section of the forum for the FOS so i may add to that if i feel. Suffice to say if you look through the trustpilot reviews you'll get a good idea of how the FOS operate. My complaint about the service (not the decision) has been accepted by the IA.

 

I also asked FOS for copy of what Santander have communicated to them about me and my account. Unhelpfully they sent me back all the correspondance i have sent to FOS and nothing from Santander, quoting :

Santander have previously told us the following,
 
"Please note that any internal screenshots, policies, or procedures are strictly confidential and must not be passed on to our customers."
 
So, some information is commercially sensitive.

 

My initial reaction was to send a DSAR off to Santander. But i'm not going to do that, i've already done it 18 months ago and have all i need so i'll be wasting my time and theirs looking for more info that i don't probably need. I.e if i havn't got enough already and i've got the law wrong then i'm doomed and no further DSAR is going to pull me out the mud, if i'm in it.

 

I've tried to focus on the positives, and of course its not without worry. I'm of the idea now that the next letter i recieve will be a "Jesus Christ !!" It'll either be an offer to settle or some sort of claim. I'm ten months with no payment to them. I've told them i am not going to pay, even though they have not asked me for a payment.

 

I suppose i'm in a very unusual situation. I'd imagine a lot or most people who go the ..... S77 route for info, or "you didn't comply with the CCA" are in actual fact in arrears and are looking for some sort of challenge to their debt. I've actually been a perfect customer for 34 years and never missed. I can imagine that some would say... why did you not pay it off sooner ? And thats because i've never been asked to or had to and i'm lazy. I just do the minimum i need to do, and of course i could end this tomorrow by paying it all off and i'll be mortgage free. I have the money to do that.

 

I also feel i can help others in the same situation. Worst that can happen ? I'll lose and i'll lose my small terraced house and end up in a council bungalow (i'm over 60). Best outcome ? I'll get my money refunded and it'll make a nice pension pot  as it was my money they took.

 

I've some questions about charges and securities, i'll do that tomorrow as its late now and i'm tired.

[marylikes]

Its ok i spent an afternoon reading old posts here about charges and securities, i'm not going to open that can of worms. I don't need to either i don't think.

 

I'll keep this simple, they still have not contacted me to ask for a payment. I suppose they could just literally sit on their hands and do nothing. So i'll now need to make concrete plans moving forward.

 

I aim to go down the unfair relationship route S140 CCA. No agreement, no modifying agreement, and quite a few other things.

Can anyone explain to me in laymans terms what this actually means:

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part49/practice-direction-49c-consumer-credit-act-2006-unfair-relationships

 

 

Aside from needing to state i am using the Consumer Credit procedure what other practical effects are there ?

 

Also Court fee : I've paid approx £34k , thats what i want back. If i want it back with 8% simple interest do i need to calculate that , maybe £80 K and also if i wanted restitutionary damages that would be £34k at 8% compound that could come to £120k? I'd imagine it would need an Actuary to calculate it.

 

If i want the latter do i have to pay a claim for £120k or do i just pay a claim for £34k and let the Court find on it ?