Mortgage mis-selling (HBOS)

[orfoster]

Re: Mortgage mis-selling (HBOS)

Okay, so you file the default judgment online then do the N227 for the non monetary part ? BE useful to have the information for future reference.

Yes apparently so, am just wording it now and will post it up shortly.

[orfoster]

Re: Mortgage mis-selling (HBOS)

lol, and that's why you wait a week....

anyway.... I would respond and agree to the extension under CPR 15.5 to give them a further 28 days to file their defence.

What did you put as the Defendant ?
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Haha only if they allow me to amend POC's?? Of course they could just remove late payment markers and naff off and I'll be happy with that....hmmm.

Yes I wondered if they'd submit soon.

I put Halifax Bank of Scotland.

[Amethyst]

Re: Mortgage mis-selling (HBOS)

Wonder if you're meant to sue Bank of Scotland plc or Lloyds Banking Group then. With all these changes we should probably do a list of who to sue for which bank.

[orfoster]

Re: Mortgage mis-selling (HBOS)

Spoke to Pt2537 again, have sent them a response saying judgment has now been entered. I would consider a set aside application after having sight of and the opportunity to consider their defence and the merit of it.

[orfoster]

Re: Mortgage mis-selling (HBOS)

Wonder if you're meant to sue Bank of Scotland plc or Lloyds Banking Group then. With all these changes we should probably do a list of who to sue for which bank.

I reckon Bank of Scotland plc, they acknowledged the case, surely they wouldn't even need to do that if I got their name wrong???

[orfoster]

Re: Mortgage mis-selling (HBOS)

They've responded saying on the matter of settlement they'd like to talk to me on Thursday...interesting.

[Amethyst]

Re: Mortgage mis-selling (HBOS)

Well, if all you need/want is those markers off your file then go for your life.

[orfoster]

Re: Mortgage mis-selling (HBOS)

Well, if all you need/want is those markers off your file then go for your life.

I'll be going for a bit of compensation as well but lets see how the negotiations go but yes ultimately that's what the main crux of the matter is.

[orfoster]

Re: Mortgage mis-selling (HBOS)

Judgment issued in favour of Claimant at 19:22...not that I've been stuck to the screen or anything. What I realised was that if they'd put their defence in on the same day I applied for judgment the court would have given their defence priority.

Roll on tomorrow at 11am...wonder what they're gonna say and I wonder if I should make reference to the fact I've just won a case against Lloyds although that might just look childish.

[orfoster]

Re: Mortgage mis-selling (HBOS)

I didn't get to speak to them today, they're calling me tomorrow.

Can I ask what happens if I've sued the wrong person? If I've put Halifax Bank of Scotland and they've acknowledged the claim...? I assume they're gonna say this tomorrow when I speak to them so just wanted to investigate my options.

[Amethyst]

Re: Mortgage mis-selling (HBOS)

Well as you've put the judgment in it will be there reason for not defending in time and they'll get the set aside - if you get there - They should have asked for the extension before they were in default, as we know the reason wasn't the incorrect defendant name, but there we are. The defendant name shouldn't be a major issue you'll just need to amend the claim and you'll have their consent to do so it won't be a huge issue but gives them a wiggle room.

Anyway in negotiations I'd agree to the set aside, then a tomlin to stay the case with liberty to restore if they go back on their offer to remove the markers from your file. ie. don't agree to withdraw without having some back up to restore the claim if they fail to do their part.

[orfoster]

Re: Mortgage mis-selling (HBOS)

Hello, update from today;

I spoke to Lloyds solicitor who was actually very friendly, his opening and closing comment was "I honestly don't know why we haven't come to a settlement on this matter", which was good but I'm not taking that comment for granted.

Here's a summary of the conversation;

1. Not in a position to discuss settlement today, but is commitment to looking into it with a view to reaching a mutually agreeable settlement in the not so distant future.
2. Admits he was out of time by the time he came to me requesting an extension.
3. Would need to look at it in more detail over the next week or so but believes we should be able to come to a settlement.
4. Speaking off the record and without prejudice.
5. I have a judgment against a non-existent company, it will have no impact on enforcement, he can’t seek to set aside as he can’t take instructions from a non-existent organisation. He would have been putting in a defence out of courtesy to the court, Halifax Bank of Scotland has never been a company, HBOS was and still is the name of the company, although it never itself offered mortgages. He can’t put a defence in nor can he seek to set aside.
6. Believes we should make a Joint application to the court, bank will pay for it, to have the judgment set aside, that claim is changed into the name of Bank of Scotland PLC t/as Halifax, in November 2008 Halifax PLC ceased to trade mortgage was with Halifax before this point. Needn’t re-serve my claim, the Defendant has 14 days to put in a defence but will agree to me amending my Particulars of Claim to include new matters recently come to my attention and to ensure they are well reflected.
7. He is really unsure why there hasn’t been a settlement.

So, what do you think I need to put in to my POC's to beef them up? As clearly, although it looks as though it may settle it also may not and he wants to move forward with the application early next week.

Essentially I seek to include this issue - according to Halifax advisor notes, my ex's income was taken but NOT taken into consideration in securing the mortgage, they did it solely based on mine as she was on NHS bank at the time, I wasn't aware they didn't include her income! If I'd been aware of that fact who's to say whether I'd have put her on the mortgage, what would have been the point? Anyway, he seemed to accept that as an issue as well.

[orfoster]

Re: Mortgage mis-selling (HBOS)

In Schedule 2 of the UTCCR's what do the following mean?

(b) inappropriately excluding or limiting the legal rights of the consumer vis-à-vis the seller or supplier or another party in the event of total or partial non-performance or inadequate performance by the seller or supplier of any of the contractual obligations, including the option of offsetting a debt owed to the seller or supplier against any claim which the consumer may have against him;

(c) making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realisation depends on hisown will alone;

(i)

irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

(n)

limiting the seller’s or supplier’s obligation to respect commitments undertaken by his agents

I think these would apply to my case, although my reading might be wrong...I'm working on POC's already

[orfoster]

Re: Mortgage mis-selling (HBOS)

Here are my POC's so far this evening with some amendments including the relevant terms and explaining the position in the misunderstanding of the terms;

I, or foster, Claimant and Litigant in Person, make these Detailed Particulars of Claim based on my knowledge and research;Breach of Statutory Duty

1. The defendant is a firm regulated by the FCA under the Financial Service and Markets Act 2000 (as amended), the claim is brought pursuant to Financial Services Act 2012 s138D and as such the defendant is subject to the Mortgage Conduct of Business Regulations (MCOB) which requires inter alia that firms treat their customers fairly and communicate with them in a way that is clear, fair and not misleading (MCOB 2.2.5) and also s.140a Unfair Relationships Consumer Credit Act 2006 amendments.
2. The claimant is a consumer as defined in the FCA Sourcebook
3. The said loan is subject to the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR).
4. The claimant has a mortgage agreement numbered XXXXXX “the agreement” with the defendant dated 9 September 2008 concerning a secured loan of £XXXXX.
5. The Claimant respectfully claims the defendant has breached a number the Mortgage Conduct of Business Sourcebook regulations that allows a “private person” to bring a claim.
6. Specifically the Claimant claims pursuant to sections contained within MCOB;
   1. MCOB 2.2.6 (R) 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.
   2. MCOB 2.2.7 (G) When considering how to comply with the requirements of these rules on clear, fair and not misleading communications and financial promotions, a firm should have regard to the customers knowledge of the home finance transaction to which the information relates.
   3. MCOB 2.5A.1 (R) A firm must act honestly, fairly and professionally in accordance with the best interests of its customer.
   4. MCOB 4.8.2 (G) - (1) MCOB 2.2.6 (Clear, fair and not misleading communications) applies to information provided to a customer in a non-advised sale, that is a sale of a regulated mortgage contract by a firm where the firm has not made a personal recommendation to the customer to enter into that particular regulated mortgage contract. In providing information on only a selection of the regulated mortgage contracts that it deals with, a firm will need to ensure that the selection is fair and unbiased. Where the non-advised sales process leads to the identification of only one regulated mortgage contract, a firm should have regard to the guidance on scripted questions in 3PERG 4.6.21 G to 4.6.25 G3.

(2) In the course of a non-advised sale a firm may decide that a customer is considering a regulated mortgage contract that is inappropriate for that particular customer. Firms should note that, in such circumstances, although they are not providing advice to the customer, they are still conducting a regulated activity and are subject to the high-level standards, including PRIN. Principle 6 (Customers' interests) requires a firm to pay due regard to the interests of its customers and treat them fairly. A firm selling what it considered to be an inappropriate product, would be in breach of Principle 6 as it would be conducting a regulated activity without regard to the customer's interests. In the FSA's opinion, the appropriate course in such cases would be for the firm to tell the customer to seek advice.

1. 1. MCOB 5.6.93Under the section heading 'Additional features' the illustration must include, where relevant, details of any additional features or facilities under the various sub-headings in MCOB 5.6.94 R.
   2. MCOB 5.6.93 (2) Only those features available on the regulated mortgage contract need be included in the illustration.
   3. MCOB 5.6.94 The relevant sub-headings are as follows: (2) 'Payment holidays';
   
   
2. In addition in accordance with PRIN 2.1, the principles state;
3. 

1. The “Relevant Terms” are contained within the booklet titled “Information about your mortgage” namely the following
   1. 1. “Some of the practices and procedures in this booklet may not apply to your mortgage. If this is the case, we will tell you in your offer which your or our conveyancer will explain to you”.
      2. 15. Payment Holidays. “no second mortgage or subsequent charge has been registered from another lender.
   
   
2. The Defendant provided the Claimant a “Personalised Illustration” of Key Facts dated 19 June 2008. 12. Additional Features “Payment Holidays - Providing your mortgage is no more than one month in arrears and your mortgage is at leas three months old, you can apply for a payment holiday”.
3. Throughout the period in which the Claimant received advice and information from the Defendant a number of e-mail exchanges and telephone conversations took place, more specifically an email conversation on 29 July 2008, which led the Claimant to take a financial decision to take a mortgage with the Defendant at a specific rate of interest 6.14% fixed over 5 years.
4. On 29 July 2008, the Defendant advised the Claimant specifically, in an email, that his Shared Ownership Scheme was not interpreted by the bank as a “2^nd mortgage”, in addition the Defendant stated that the Claimant would be entitled to take a Payment Holiday should he need it and further be able to take additional advances. The Claimant believed this to be true as the Defendant further advised that the Shared Ownership mortgage would be treated as a deposit by the bank.
5. The Defendant further provided a document titled Your Mortgage Offer dated 31 July 2008 in which it provides “12. Additional Features. Providing your mortgage is no more than one month in arrears and your mortgage is at least three months old, you can apply for a payment holiday. Further information regarding other conditions applying to underpayments and payment holidays can be found in our booklet “Information about your mortgage” which we issue with mortgage offers”.
6. The Claimant sought clarity pursuant to a number of telephone conversations that took place with the Defendant, the Claimant had no reason to not believe the Defendant as the Defendant stated he had “checked” the position in the matter in question.
7. The Claimant claims the Defendant misrepresented the facts based on his skill and knowledge.
8. **The Claimant seeks to rely upon UTCCR Regulation 7 (2) “If there is doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail but this rule shall not apply in proceedings brought under regulation 12.”**
9. It is admitted by the Defendant that the advice given on this date was inaccurate. In any event, at the time, it is argued that the Defendant did not have reasonable grounds for believing its statement to be true. The Claimant pleads the Defendant should have been in a position to know the facts.
10. The Defendant was aware that the Claimant was considering his position in relation to taking a mortgage with them or “shopping around” and whether he would secure a fixed rate mortgage based on the benefits available.
11. The Claimant made enquiries with other mortgage providers, and the deciding factor was that the Defendant offered the additional benefit and security of a Payment Holiday and further advances and therefore the Claimant decided to secure a fixed rate mortgage with the Defendant, feeling secure that the payments would remain the same and the additional benefits would be available.
12. The Claimant learned in November 2012 that the Defendant provided inaccurate information in email exchanges on 29 July 2008, namely that;
    1. The Defendant would not consider at any stage a request for a Payment Holiday due to the Shared Ownership Scheme.
    2. The Defendant would not consider the payment from a shared ownership scheme as a deposit.
    3. The Defendant would not allow an application for a further mortgage due to the shared ownership scheme.
    
    
13. **The Claimant further pleads that the Defendant, on 22 July 2008, made a note stating that the 2nd applicants income would not be considered as part of the assessment for a mortgage. The Claimant claims and puts the Defendant to proof of when he informed the Claimant of such a decision. The Claimant claims that had he been aware of that fact, he would have continued the application on a sole basis. **
14. The Claimant pleads he would not have taken the financial decision to fix his mortgage product for 5 years at 6.14% had he been aware of the facts as this would have not placed him any greater of a secure position in respect of the benefits or risk of payment fluctuation.
15. The Claimant pleads that he sought clarification with the Defendant on 29 July 2008 as the deciding factor as to whether or not proceed with the mortgage with those terms.
16. The Claimant claims that he would have either sought another creditor offering the terms or he would have remained on a non-fixed mortgage product in order to switch provider. Something which the Defendant was aware of at the time during a number of telephone conversations that took place in or around July 2008.
17. The Claimant agreed with the Defendant a nil arrangement due to a change in employment for a period of two months, the Defendant did not allow the Claimant to apply for a “Payment Holiday”.
18. This is the result of unfair treatment by the defendant and therefore is in breach of the defendant's statutory duty to treat their customers fairly contained in MCOB
19. In accordance with the Financial Services and Markets Act, contravention of which by an authorised person may be actionable under section 150 of the Act (Actions for damages) by a person who suffers loss as a result of the contravention.
20. The Claimant claims the Defendant has by his actions breached his statutory duty by giving inaccurate information and advice and further misrepresenting the facts.
21. As a result of the Defendant’s breaches the Claimant claims damages.
22. By virtue of the above, the defendant has treated the claimant unfairly and in breach of their obligations under MCOB.
23. The Claimant calculates his losses comparable to his rate of interest at 6.14% and that of a Standard Variable Rate with the Defendant.

1. The Claimant claims losses as particularised above and/or respectfully any amount at the Courts discretion.
2. 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.
3. The Claimant claims pursuant to his request dated 6 May 2013 in accordance with the Data Protection Act 1998 s7, the Defendant failed to comply within the prescribed time, more specifically the Defendant had a prescribed period of 40 days to comply, the Claimant pleads the Defendant failed to comply January 2014.
4. The Information Commissioner held that on 20 November 2013, it was unlikely the Defendant complied with its obligations in accordance with the Data Protection Act, despite this the Defendant still failed to comply with the Claimants request for data until January 2014 and did not fully comply with the specific request until its letter dated 26 July 2014.
5. The Claimant respectfully requests any compensation awarded at the discretion of the Court in respect of the Defendants breaches.

1. The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 29 July 2008 to 26 July 2014 on £7,803.57 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £2.03. Totalling £9,858.26
2. I believe that the facts stated within these Particulars of Claim comprising of six pages are true.

[orfoster]

Re: Mortgage mis-selling (HBOS)

Does anyone know if an individual can bring a claim under the Consumer Protection from Unfair Trading Regulations? I can't seem to find the answer.