Please help - we are losing our home :-(

[mumisskint]

Re: Please help - we are losing our home :-(

Thats all the agreements bar the last one which would come through on the latest SAR if they ackowledge it.

I have been really down this week and I have to pull myself together.

My plan has been to send off all the complaints and the SAR for the missing stuff, make complaints as needed to all regulatory bodies, work out what the bank owe me, if the contract is enforceable and what they have done wrong, when the SAR's are back, get everything put on hold for now, keep making payments in good faith in the mean time, get the money back that they have charged unfairly, get them to agree to put it on a residential mortgage, claim mortgage help, get a contract in March, pay it myself.

[Gorang]

Re: Please help - we are losing our home :-(

Thats all the agreements bar the last one which would come through on the latest SAR if they ackowledge it.

I have been really down this week and I have to pull myself together.

My plan has been to send off all the complaints and the SAR for the missing stuff, make complaints as needed to all regulatory bodies, work out what the bank owe me, if the contract is enforceable and what they have done wrong, when the SAR's are back, get everything put on hold for now, keep making payments in good faith in the mean time, get the money back that they have charged unfairly, get them to agree to put it on a residential mortgage, claim mortgage help, get a contract in March, pay it myself.

Sounds like you have pulled your self together Mum as you defo seem to be focused and know exactly what you have to do, and you are doing a great job, and I take my hat off to you and give you

((((((((((((((((((((((((((BIG HUGS)))))))))))))))))))))))))

Just keep remembering

Don't let them grind YOU down
YOU grind THEM down

and you know
YOU CAN
YOU WILL
and
YOU ARE

XX

[mumisskint]

Re: Please help - we are losing our home :-(

Thanks Gorang! Those hugs are good!!

[TUTTSI]

Re: Please help - we are losing our home :-(

The fact that you are now dealing with this in a methodical way should make you feel a loads better and they cannot do anything whilst this is dispute. It is them now who have to comply, so relax now whilst they have to to get all the documents sent to you.

Big hugs from me too <<<<HUGS>>>> xx

Thats all the agreements bar the last one which would come through on the latest SAR if they ackowledge it.

I have been really down this week and I have to pull myself together.

My plan has been to send off all the complaints and the SAR for the missing stuff, make complaints as needed to all regulatory bodies, work out what the bank owe me, if the contract is enforceable and what they have done wrong, when the SAR's are back, get everything put on hold for now, keep making payments in good faith in the mean time, get the money back that they have charged unfairly, get them to agree to put it on a residential mortgage, claim mortgage help, get a contract in March, pay it myself.

[Judge mental]

Re: Please help - we are losing our home :-(

Hi Mum.
You have a plan of action which appears sensible and well thought out, I have gone through the additional letters and contract and you may wish to consider the following points.

Despite there having been numerous reviews there has only been one occurrence of a change in the terms, however that raises some interesting possibilities.( Incidentally, there does not appear to be a provision within the original agreement to impose a charge for a review)

The Bank claim to have a first charge mortgage recorded at the land registry therefore this is a mortgage contract (a home purchase transaction) and tis as simple and straight forward as that. You can check if in fact they have a registered charge by obtaining the title information relating to the property from the Land Registry, it can be done online and costs around £4.50 (if they have not registered their charge they have no right of possession)

The difficulty arises when trying to ascertain whether this is a 'regulated mortgage' under the Financial services authority as only contacts entered into after 31st October 2004 fall under the FSA's remit

Initially a bridging loan in December 2003, according to the paperwork this was changed to a 'business overdraft facility' in October 2008.

The FSA say, in PERG 4.4
The effect of the Regulated Activities Order is that mortgage contracts which are varied can fall into one of the following categories:
(1) a contract that was entered into before 31 October 2004, and that is subsequently varied on or after that date so that is satisfies the conditions set out in PERG 4.4.1 G (1) to PERG 4.4.1 G (3), will not be a regulated mortgage contract (because it was not a regulated mortgage contract at the time it was entered into);
(2) a contract that was originally entered into before 31 October 2004, but is subsequently changed on or after that date such that a new contract is entered into, will be a regulated mortgage contract (provided, of course, that it meets the definition in the Regulated Activities Order); and
(3) a regulated mortgage contract that was originally entered into on or after 31 October 2004, and which is subsequently varied by, for example, making a further advance, will remain a regulated mortgage contract.

Your facility would either be
a) taken out prior to October 2004 and varied in October 2008, therefore not regulated
or
b) taken out prior to October 2004 and changed in 2008, therefore regulated.


It could be argued that as a new account has been created and a re-writing substantiall of the terms and conditions, this is a new contract and is a regulated Mortgage. The Bank will no doubt argue that this is a variation of a contract taken before October 2004 and is therefore not regulated.

The covering letter that accompanied the change in facility in 2008 makes no reference to the previous loan or that it is a variation of that loan, it begins
HSBC is pleased to offer an overdraft facility upon and subject to terms set out in this letter.

I suggest therefore that this is more likely to be a new contract (as opposed to a variation of the old one) and is a regulated mortgage contract as defined by the FSA (although you may wish to obtain advice from a Solicitor or the FSA on this), in which case they are in breech of many MCOB rules including Advertising and selling, pre application disclosure, disclosure at offer stage, responsible lending, charges, arrears and repossessions.

There are also a number of terms which would arguably create an unfair relationship as defined by the Consumer Credit Act.

I do think you have plenty of ammunition should the bank attempt any re-possession litigation, you could also make an application to a court to determine the legality of the contract and fairness of relationship (but will involve costs) and/or make a complaint to the financial Ombudsman (no costs but only a court can determine if a contract is legal or fair).

I think any court would take a dim view of the methods adopted by the bank to ensure you are deprived of consumer protection provided by either the CCA or FSA. This is particularly highlighted by their inclusion of a declaration at the end of the 2008 contract which clearly states that as this is a (non existent) business account the provisions of CCA do not apply.

Stuart

[SpringerSpaniel]

Re: Please help - we are losing our home :-(

Hi Mum,

It's great to hear you have a plan for dealing wiht all this. This should make you feel a lot better too. Stay strong and all the best

Springer

[mumisskint]

Re: Please help - we are losing our home :-(

Hi Stuart,
Thank you for that post. I had a tax rebate so I can afford some court fees, well one or two anyway!

I have asked whether it is a mortgage or not. They say not, that it is a personal loan as, for reasons unbeknown to me, they couldnt give me any kind of mortgage as I had one on the marital home.

One thing - the overdraft is I thought separate to the loan. Its always been explained as an account that services the loan (and clearly allows them to build up extra interest) but as a business account is exempt from the CCA. I didn't think it had taken the place of the loan as the loan still exists and the account is on another account number but I think there must be an 'all monies charge' on the mortgage deed so its secured too. Plus they have said something about taking the money from that account and paying it to the loan (even tho I had no money to put in) so creating an overdraft of about 6k (which I sold my car to pay off) over 6 months. So I figure I am paying about 28% on an unauthorised overdraft each month as well as the 7% above base on the loan.


I've always argued that I am not a business customer so the only reason they gave me a business account was to make sure it wasn't CCA regulated.

Its at times like this, trying to explain it all seems a mammoth task! Thank you all so much for your help.

Mum xxx

[mumisskint]

Re: Please help - we are losing our home :-(

Two questions I don't know if anyone would have the answer to-
a) if a loan is in dispute can they hold off on SAR requests claiming the 'in negotiation rule'?
b) how long do I give HSBC to respond to the complaints, the first one, about the first SAR has not been acknowledged and it will be 2 weeks tomorrow ... should I go to the ICO now do you think - whats a reasonable time?

Mum x

[Gorang]

Re: Please help - we are losing our home :-(

a) if a loan is in dispute can they hold off on SAR requests claiming the 'in negotiation rule'?

as far as I am aware the the time limit for the SAR is the time limit no matter what is happening with the account

I do know if it was a CPR request and court proceedings have started then they do not need to comply with the CPR request as the docs would/should be submitted at disclosure stage, but with the SAR, I think they still have to comply

b) how long do I give HSBC to respond to the complaints, the first one, about the first SAR has not been acknowledged and it will be 2 weeks tomorrow ... should I go to the ICO now do you think - whats a reasonable time?

I think they could argue 28 days as that will be their standard fob off time, but if you have not even recieved a simple letter comfirming they have recieved your complaint then,mmmmmmmmmm, maybe best to send them a reminder, then poss wait until 28 days are up from the date of your first complaint, then go to the ICO

BUT this is only my thoughts so please wait for other comments

[Judge mental]

Re: Please help - we are losing our home :-(

Mum

the bank clearly have set up quite a complicated structure for your lending, the only reason that I can see for such an elaborate arrangement is to remove your rights within the CCA and FSA and for them to bypass obligations placed upon them.

In an attempt to conceal their bad practices they are now trying to confuse you further with complexities that are like your business account - made up.

Having said that, I too appear to have got confused as to the role of the overdraft.
The overdraft facility is secured by a first charge on the property and had an initial interest rate of 2 over base. This agreement has provisions to allow them to charge a renewal fee, change any term by giving 30 days notice, if the account exceeds its limit to charge an unauthorised lending fee of £4 per day . . . £120 per month!! in addition to account management fees and interest.

In order to extract maximum cash from you they carried out reviews with only 3 or 4 month intervals, increased the interest rate to 5.5% over base in May 2009 and in November they removed the overdraft limit meaning the entire balance is unauthorised lending.

Are you saying that in addition to that, the original loan account is still open and gathering interest? Do you get a separate statement for the old bridging loan and the overdraft? Where does the 7% above base rate come from as I see no review making such changes.

Their line of 'you cannot have more than one mortgage' is nothing more than a smoke screen,
To try to clarify the status of the loan here are a few extracts from the FSA's handbook in relation to what constitutes a mortgage.

MCOB 1.2.8
(1) Firms are reminded of the requirement in MCOB 2.2.6 R that any communication should be clear, fair and not misleading when substituting an alternative for the term 'mortgage' in accordance with MCOB 1.2.7 R(1).
(2) Possible alternatives to the term 'mortgage' include, for example, 'secured business overdraft', 'secured loan' or 'secured business credit'.

MCOB 2.2.6
(1) When a firm communicates information to a customer, it must take reasonable steps to communicate in a way that is clear, fair and not misleading

MCOB 2.2.8
The rule on clear, fair and not misleading communications covers all communications with customers, for example any oral or written statements, telephone calls and any correspondence which is not a 1 financial promotion to which MCOB 3 (Financial promotion) applies

MCOB 2.6.2
A firm must not, in any written or oral communication, seek to exclude or restrict, or to rely on any exclusion or restriction of, any duty or liability it may have to a customer under the regulatory system.

PERG 4.4.1
Article 61(3)(a) of the Regulated Activities Order defines a regulated mortgage contract as a contract which, at the time it is entered into, satisfies the following conditions:
(1) the contract is one where a lender provides credit to an individual or trustees (the 'borrower');
(2) the contract provides for the obligation of the borrower to repay to be secured by a first legal mortgage on land (other than timeshare accommodation) in the United Kingdom; and
(3) at least 40% of that land is used, or is intended to be used, as or in connection with a dwelling by the borrower (or, where trustees are the borrower, by an individual who is a beneficiary of the trust) or by a related person.

PERG 4.4.10
The definition of regulated mortgage contract contains no reference to the purpose for which the loan is being made. So, in addition to loans made to individuals to purchase residential property, the definition is wide enough to cover other loans secured on land, such as loans to consolidate debts, or to enable the borrower to purchase other goods and services.

PERG 4.4.11
The definition of regulated mortgage contract also covers a variety of types of product. Apart from the normal mortgage loan for the purchase of property, the definition also includes other types of secured loan, such as secured overdraft facility, a secured bridging loan, a secured credit card facility, and so-called 'equity release loans' (defined as regulated lifetime mortgage contracts in this guidance) under which the borrower (usually an older person) takes out a loan where repayment of the capital (and in some cases the interest) is not required until the property is sold, usually on the death of the borrower.

PERG 4.4.14
It is possible for more than one mortgage contract to be secured by the same (first) charge. The first contract might be entered into before 31 October 2004 (and therefore not be a regulated mortgage contract) and a second contract entered into on or after 31 October 2004 (and be a regulated mortgage contract).

This last one is particularly important as it now appears that the initial contract is an unregulated mortgage and the overdraft is a separate agreement and would be a regulated mortgage. It might be worth having a chat to the FSA to get their view on whether the agreements are regulated or unregulated.

I hope you can now begin to see the extent of the banks 'missrepresentations' and that anything and everything they say or claim should be checked..... begin with asking them for clarification of the 'in negotiation rule' which they claim applies to a SAR or the Data Protection Act.

I agree with Gorang that it is too soon to make a complaint to the ICO unless they have stated they will not provide the info, the Ombudsman considers 8 weeks to be a reasonable period for not recieving a response to a complaint

Stuart

[mumisskint]

Re: Please help - we are losing our home :-(

You lot are all utterly brilliant you know! Thank you so much for helping me x

[mumisskint]

Re: Please help - we are losing our home :-(

Ok, all letters in the post box ... yay!! (?) I actually feel like I should be going out and getting a lot of boxes to start packing up as I am sure they will just seek possession really quickly now to try and avoid all this and I wont be ready to defend myself. If I put the house on the market would that help, I am paying what I would be paying on a base rate mortgage so if the house is up for sale can I ask the Judge for time to sell? Am having visions of being evicted into the snow on Christmas Eve.... no, its going to be OK!

[Judge mental]

Re: Please help - we are losing our home :-(

Mum:


try to stop panicking, lets look at 'worst case'

They make an application to a court for possession, you have 28 days to submit a defence. We can help you with this if necessary.

The defence would cast sufficient doubt over their application so the court adjourn the first hearing and schedule a hearing that will allow sufficient time for all your concerns to be addressed and determined . . . . at this stage HSBC would be frantically be trying to reach an agreement with you to avoid a detailed examination of the facts....and we will be well well into 2012, such a hearing would probably not be this side of Easter.

Even if at the first hearing the Judge does not entertain your claims, you take your statement of income and expenditure and the court decide how much, over and above the monthly instalment you will pay and the possession order is suspended.

If you then default on that agreement, they can ask the court for an eviction date, you then request another hearing which should set aside the eviction and vary any agreement if necessary.

Whilst you shouldcontinue to pursue all the question and disputes raised and try to agree with HSBC the best way forward, as far as eviction is concerned . . . relax and try to enjoy your Christmas because your fears will not materialise in that way.

Stuart

[SpringerSpaniel]

Re: Please help - we are losing our home :-(

Een if they have evaded the CCA by arguing - quite possibly fraudulently - that you are a business customer, you will still be covered by UCTA and by UTCCR if your turnover is less than £1million/yr

[mumisskint]

Re: Please help - we are losing our home :-(

Stuart - yes, I should stop panicking - but this is the unknown and its scary - so I am allowing myself 10 minutes of panic per day - that is all.
Springer - I don't have a company and I dont have any turnover - plus those are very big acronyms ...... should I be thinking about them too?

Mum xx