Mortgage mis-selling (HBOS)

[orfoster]

Re: Mortgage mis-selling (HBOS)

Thakker relevant solely because of the MCOB reliance

The Appellant argued that because the MCOB rules were given effect by a statutory regime, there was no legal right to possession unless those rules had been complied with.
The Court rejected the Appellant's arguments and dismissed the appeal. Simler J noted that:

1. The argument that there was no right to possession unless the MCOB rules had been complied with was inconsistent with Section 151 (2) of the Financial Services and Markets Act 2000, which provides that a breach of a MCOB rule does not make any transaction void or unenforceable;
2. Even if the alleged breaches of the MCOB rules were proven, this would not have given rise to a defence; and
3. The MCOB rules did not seek to alter the underlying rights of the parties.

- See more at: http://www.lpc-law.co.uk/news/latest....VPTc00c5.dpuf

I wondered how strong MCOB would be here, I didn't just rely on that though (hopefully), I am also suggesting they had more knowledge and experience to line it up for a misrepresentation claim.

[Amethyst]

Re: Mortgage mis-selling (HBOS)

The SV rate is in the schedule, I think, I'll check but it did differ throughout the history so the amount changes depending on the period. It isn't exact though I'm sure.

Their defence was due on Friday and they've been ticking the boxes electronically and MCOL doesn't have it logged there, I'll give them a call but doesn't it mean they haven't had it yet?

Ta xx

If they submitted defence manually it may not have been logged yet, I always say give them a week on top before going for default judgment, otherwise you may have to go through a set aside hearing and app which bumps up potential costs.

[orfoster]

Re: Mortgage mis-selling (HBOS)

Ta xx

If they submitted defence manually it may not have been logged yet, I always say give them a week on top before going for default judgment, otherwise you may have to go through a set aside hearing and app which bumps up potential costs.

Ok, what do you think of my claim? Appreciate you have literally just opened it.

If they still don't defend what's the procedure, I know I can do it online but that won't get a judgment of anything other than the money I am claiming will it?

[Amethyst]

Re: Mortgage mis-selling (HBOS)

This bit , I think its a positive point for the POC as you are in essence suing for damages

19. As a matter of strict statutory construction, it seems to me that, even if the appellants' pleaded case was that the alleged breaches of the code render the respondent's right to possession under the mortgage contract unenforceable, such breaches, even if proved, could not have that effect by virtue of these provisions. Mr Pugh argues that he is not seeking to argue that any transaction is void or unenforceable, but in my judgment that is precisely the effect of his submission.

20. I am fortified in reaching that conclusion by a consideration of an extract from a leading specialists' textbook in this area. Jan Luba QC who, with others, has produced a legal action group book, entitled Defending Possession Proceedings, deals with the code and the consequences of a breach of its rules at paragraph 40.8(3) in the following terms:

"The FSA is charged with regulatory control of a myriad of different financial services and has issued a handbook which contains over thirty sourcebooks setting out the rules governing regulated persons in different fields. The handbook and its regulations are issued pursuant to powers given to the FSA under the 2000 Act. If a lender fails to comply with the rules it runs the risk of a regulatory and disciplinary action by the FSA. A borrower who can show that he or she has suffered loss as a result of contravention of a rule may sue the authorised person for damages. However, such a contravention does not render the transaction void or unenforceable."

Has this been to the FOS (guessing not and if not why not - speed?)

[orfoster]

Re: Mortgage mis-selling (HBOS)

This bit , I think its a positive point for the POC as you are in essence suing for damages


20. I am fortified in reaching that conclusion by a consideration of an extract from a leading specialists' textbook in this area. Jan Luba QC who, with others, has produced a legal action group book, entitled Defending Possession Proceedings, deals with the code and the consequences of a breach of its rules at paragraph 40.8(3) in the following terms:

"The FSA is charged with regulatory control of a myriad of different financial services and has issued a handbook which contains over thirty sourcebooks setting out the rules governing regulated persons in different fields. The handbook and its regulations are issued pursuant to powers given to the FSA under the 2000 Act. If a lender fails to comply with the rules it runs the risk of a regulatory and disciplinary action by the FSA. A borrower who can show that he or she has suffered loss as a result of contravention of a rule may sue the authorised person for damages. However, such a contravention does not render the transaction void or unenforceable."

Has this been to the FOS (guessing not and if not why not - speed?)

Yes it went to the FOS and they agreed with me the advice was inaccurate, they offered me £100 and told me the arrears markers would stay, this was at adjudication and was at the same time my bank charges case had been turned down at Ombudsman so I pulled it pretty quickly.

Since then and just before issuing this claim, the Defendant admitted in an e-mail from their Executive Office that the advice was inaccurate but they simply deny I am due any recompense or to have the situation remedied.

Thanks for this, I'm having a read of the case you mention now.

[Amethyst]

Re: Mortgage mis-selling (HBOS)

Ok, what do you think of my claim? Appreciate you have literally just opened it.

If they still don't defend what's the procedure, I know I can do it online but that won't get a judgment of anything other than the money I am claiming will it?

Honestly I think its lacking 'law' but when I get the proper computer ( on tablet at the minute) and a coffee, I'll go through it properly, I just wanted to check the MCOB issue.

[Amethyst]

Re: Mortgage mis-selling (HBOS)

Yes it went to the FOS and they agreed with me the advice was inaccurate, they offered me £100 and told me the arrears markers would stay, this was at adjudication and was at the same time my bank charges case had been turned down at Ombudsman so I pulled it pretty quickly.

Since then and just before issuing this claim, the Defendant admitted in an e-mail from their Executive Office that the advice was inaccurate but they simply deny I am due any recompense or to have the situation remedied.

Thanks for this, I'm having a read of the case you mention now.

copy of that would be good. (sorry I know you were only asking about filing for default judgment)

[orfoster]

Re: Mortgage mis-selling (HBOS)

copy of that would be good. (sorry I know you were only asking about filing for default judgment)

No problem at all, I'll dig it out, I submitted a SAR to the FOS so have all of their notes as well which does help me a bit, oh and I have the banks submission to the FOS obviously hehe.

[orfoster]

Re: Mortgage mis-selling (HBOS)

Honestly I think its lacking 'law' but when I get the proper computer ( on tablet at the minute) and a coffee, I'll go through it properly, I just wanted to check the MCOB issue.

Oh heck, am at home all day so am on hand to put up anything you need.

[orfoster]

Re: Mortgage mis-selling (HBOS)

See attached, just dashing out the door, back in a minute so will explain this in more detail.

[orfoster]

Re: Mortgage mis-selling (HBOS)

Ok am back now.

Just to say, I really put the wrong complaint to the FOS, I complained I should have been entitled to a payment holiday, not that actually I was misled with the mortgage. The FOS agreed with the latter.

[Amethyst]

Re: Mortgage mis-selling (HBOS)

They agree that you were misled on the payment holiday issue, but disagree it had an effect on you as you would have been turned down anyway.... typical FOS lol. Quite a narrow complaint and it does back up the mis-selling in your POC.

Did you submit a screenshot of the website stating that payment holidays would be available for in a reduced income circumstance?

[orfoster]

Re: Mortgage mis-selling (HBOS)

They agree that you were misled on the payment holiday issue, but disagree it had an effect on you as you would have been turned down anyway.... typical FOS lol. Quite a narrow complaint and it does back up the mis-selling in your POC.

Did you submit a screenshot of the website stating that payment holidays would be available for in a reduced income circumstance?

I shouldn't have made the complaint in the way that I did, essentially I shouldn't have said I was "entitled" to a payment holiday, simply that they incorrectly advised me.

Yes I did do a screenshot and I did send it on but by looking at the notes it doesn't seem as though she considered it and by the point of getting the notes I'd lost all faith in the FOS.

You see also what was confusing was in my mortgage offer and key facts illustration it has payment holidays as being a benefit and refers me to the T's and C's, those state that if it isn't applicable it wouldn't be in the mortgage offer or key facts and then in the bit about payment holidays it talked about a 2nd mortgage, that's why I then sent the e-mail seeking clarity which they then confirmed as they had on the phone that it wasn't classed as a 2nd mortgage and that it was classed also as a deposit.

[Amethyst]

Re: Mortgage mis-selling (HBOS)

s.140a Unfair Relationships - Consumer Credit Act 2006 amendments
Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR)

They are mentioned at the beginning (very briefly) but there is nothing else in the POC.

In the LBA you mention Consumer Protection from Unfair Trading Regulations 2008 but not in the POC

Which terms were unfair? What was the unfair relationship ? Everything concentrates on MCOB breaches, which is demonstrative of unfair relationship but you don't appear to be arguing it, or any specific unfair terms.

Probably me just being picky and could be moot point if they fail to defend....

Did you take the 6.15% fixed rate mortgage simply because it allowed a payment holiday.

I really don't understand the issue with the Shared Ownership and the Deposit though - solely because I don't really understand how the Shared Ownership works in relation to your mortgage.

You see also what was confusing was in my mortgage offer and key facts illustration it has payment holidays as being a benefit and refers me to the T's and C's, those state that if it isn't applicable it wouldn't be in the mortgage offer or key facts and then in the bit about payment holidays it talked about a 2nd mortgage, that's why I then sent the e-mail seeking clarity which they then confirmed as they had on the phone that it wasn't classed as a 2nd mortgage and that it was classed also as a deposit.

What was the actual position ?

Would the standard variable rate have been available to you as a shared ownership ?


(sorry for questionning you)

[Amethyst]

Re: Mortgage mis-selling (HBOS)

Credit File wise

The Claimant claims that due to the position he was placed in, his
credit file has suffered, the Claimant was not allowed to take a
Payment Holiday as promised by the Defendant. The Claimant claims
that the Defendant places the Claimant in the same position had he
taken a Payment Holiday in respect of the Claimants credit file.

So the two late payment markers come from where you asked to take the payment holiday and you want those removing.


(sorry filling up your thread I'm thinking out loud really)