FOS Ombudsman Final Decisions

[Mic]

Re: FOS Ombudsman Final Decisions

FOS has never worked properly since its inception or maybe it has. It all depends on who they are working for.

They certainly don't apply the law in support of complainants and tend to pay lip service to the consumer whilst protecting banks.
There actions in your case have shown the above to be true and if you read other cases, you can see from their testimonials about what they have done for the consumer, is to most likely have side stepped main issues and taken a much smaller stance. This is probably as a result of the OFT fiasco with the banks, as in they are now too scared to do anything barring the most minimal support for claimants.

I would check with a good solicitor or barrister to see if you have a case, many will give first consultation, either for free, or a small fixed charge. Know your legal rights.
Before you do this make sure you have all the facts and paperwork to support your case. Extend this by writing everything down in chronological order and give bullet points.

You can then either take the case to small claims court, or go through a solicitor or barrister.

By all means go back to the FOS, but be aware that any agreement you make with them, is legally binding, which could limit any court action.

[skintmember]

Re: FOS Ombudsman Final Decisions

Thanks Mic,
I'm beginning to realise that the Fos are not what I thought or they make out to be.
The only thing what's putting me off taking it further is the fact that we have a Ppi claim in for several loans agreements with a few thousand pounds in compensation being offered for four misold polices out of Ten as it goes.

I'm frightened in case they change their mind and we end up losing the house due to the suspended repossession order looming as the second reply from the Fos came one day after the offer was made.
I will definitely look into getting some solid legal advise thanks again for the advice.

[Fred]

Re: FOS Ombudsman Final Decisions

Another very rare decision goes against the untouchables;

http://www.ombudsman-decisions.org.u...x?FileID=96545

The "upset" factor must be huge in this on the defendants, however the £2.5K compensation is one of the biggest I have seen so far against this second charge mafioso.

[Amethyst]

Re: FOS Ombudsman Final Decisions

Text of the decision in Fred's post

complaint

Mr and Mrs T complain that Firstplus Financial Group Plc ("Firstplus") declined their shortfall
application and were therefore unable to sell their house.

background

Mr and Mrs T took out a loan secured on their property as a second charge in 2007. The
loan was for a term of 25 years. Due to a change in personal circumstances Mr and Mrs T
fell into arrears on their account and Firstplus brought possession proceedings.

Mr and Mrs T wanted to sell the property but in order to do so they applied to Firstplus to
request that they could sell the property, but not repay all of the Firstplus loan. This was
refused.

The court case for possession was adjourned in March 2012 for a year. The property was
put on the market for sale and Firstplus accepted reduced monthly payments subject to a
review. In 2013 possession was granted but Firstplus agreed not to enforce the order as
long as payments were maintained and the house remained on the open market for sale.

Mr and Mrs T received an offer for the property. The buyers already had a mortgage in place
but Firstplus wouldn't agree to the shortfall sale- so the property couldn't be sold. As a result
the buyers pulled out of the purchase. As Mr and Mrs T could no longer afford the mortgage
and secured loan they handed the keys back to the first charge lender.

The property was eventually sold in February 2015. It was sold for less than the original offer
on the property. Mr and Mrs T say that the pressure was intense and very stressful from
Firstplus throughout.

Firstplus said that the shortfall application was declined as Mr and Mrs T were up to date on
their first mortgage and so there was no threat of repossession from the first charge lender.
If Firstplus had agreed to the shortfall application then it wouldn't receive any funds from the
sale of the property and it thought it was too great a risk to allow the balance of the loan to
become unsecured.

Firstplus did say however that it was willing to accept a reduced payment arrangement with
Mr and Mrs T to allow them time to sell. It also paid them a total of £400 as a gesture of
goodwill for the incorrect information it gave them, about time scales for calling them back
and for other aspects of poor service.

Our adjudicator thought the complaint should succeed. She said that she was satisfied that
Mr and Mrs T had told Firstplus's solicitor that their income and expenditure would be
insufficient to meet their needs and they needed to sell the property. She also said that the
solicitors had agreed a new payment arrangement if they continued to market the property.
However, they didn't tell them they couldn't sell if they obtained an offer. In addition she
didn't think Firstplus took Mr and Mrs T's change of circumstances into account. She thought
if Firstplus had made Mr and Mrs T aware that they wouldn't be allowed to sell the property
then Mr and Mrs T would have taken steps to hand back the property sooner than they did.
She thought that Mr and Mrs T were put through an extra year of unnecessary stress and
Firstplus's unreasonable refusal to allow them to sell added to this.


In August 2015 I issued my provisional decision. I said I agreed that the case should be
upheld but was intending to set out different compensation. I asked Mr and Mrs T and
Firstplus to send me any further evidence or information they wanted me to consider. This is
an extract from my provisional decision.

“When the offer to purchase the property was made in 2014 Mr and Mrs T asked Firstplus if
it would allow them to sell the property. Firstplus didn't agree to the shortfall sale.

From the paperwork in this case I think it's likely that Firstplus knew Mr and Mrs T's situation.
The solicitors acting for Firstplus were aware of the reduced payment amount that
Mr and Mrs T were paying and had agreed these amounts. It also knew that the property
was being marketed for sale. As solicitors were acting for Firstplus, it is likely that it was told
of the situation and realised that Mr and Mrs T would have to sell the property and I think
Mr and Mrs T were doing all they could to sort out the situation.

As a result of not allowing the sale to take place and refusing the shortfall application,
Firstplus trapped Mr and Mrs T when they were particularly vulnerable. Mr and Mrs T were
going through a difficult time. I think Firstplus should have been aware that the only way out
of their situation was for Mr and Mrs T to sell their house. I think Firstplus encouraged them
to put it on the market and I don't think it was fair for them not to let the sale proceed. I think
this added greatly to Mr and Mrs T's stress and made their situation even more difficult.

It is my view that Mr and Mrs T should have been allowed to sell. The shortfall application
should have been given at the point when they requested it because they had a buyer. It is
my view if Firstplus had reasonably assessed what Mr and Mrs T were saying, it ought to
have known that their situation wasn't sustainable and so their only option would be to sell or
to hand the keys back or get repossessed. As a result of not allowing the shortfall
application Mr and Mrs T had to hand the keys back to NRAM, the first charge lender so that
it could sell the property and I can't see how that helped Firstplus or Mr and Mrs T. I think as
a result of Firstplus's refusal to allow the sale Mr and Mrs T now owe more than they would
have done if Firstplus would have agreed to the sale in the first place.

I think Mr and Mrs T's property could have been sold earlier than it was. This would have
resulted in the first loan being settled faster than it was. As it was likely sold at a later date
this left Mr and Mrs T paying interest payments to their first charge lender which could have
been avoided. So I think Firstplus should pay any mortgage interest payments Mr and Mrs T
made to NRAM from three months from the date of the first offer which would have given
them a reasonable time to sell the property until the actual completion date together with any
arrears fees or penalty charges to NRAM.

So I intend to uphold this complaint. There is no reason to think the sale would not have
happened if Firstplus would have allowed the sale to take place when it was originally
approached. I think it's more likely than not that the property would have been sold before it
was but for Firstplus's refusal to allow the sale to go ahead.

I am also of the view that the stress that Firstplus caused Mr and Mrs T by not allowing them
to sell the property had a great impact on Mr and Mrs T's well-being which is still continuing.
Mr and Mrs T were going through a difficult time and their son was suffering with ill health.

Mr T was also suffering with ill health. Whilst Mr and Mrs T were dealing with their son's ill
health and making visits to the hospital, Firstplus continued to maintain pressure. I don't
think Firstplus allowed for their particular circumstances at the time. And I think Mr and Mrs T
did all they could to address their difficulties.


Firstplus effectively took away Mr and Mrs T's only course of action which was to sell the
property. As a result they had to hand keys back to the first charge lender and lost control to
sell their own property. The loan still outstanding is now unsecured but that would have
happened in any event. For all the confusion and the trouble and upset this has caused Mr
and Mrs T, I am intending to award the sum of £2,500 in trouble and upset.

Although I accept that Mr and Mrs T were in difficulties in paying their mortgage and
Firstplus didn't need to give them the shortfall application, if Firstplus would have taken into
account Mr and Mrs T's situation, it would have been fair and reasonable for it to allow the
sale to go through. In the end, Firstplus is in no better position by refusing the sale but Mr
and Mrs T have had to incur further sums which could have been avoided.

It is difficult to put Mr and Mrs T in the position they might have been had the sale been
authorised. I can't say for certain that the house would have been sold but there is no reason
for me to think that it wouldn't have been. I hope the sum I intend to award might go some
way to compensate them for the fact they could not sell their house at a higher price than it
was, and for the stress caused at a time when they most needed assistance and a sensible
approach to be taken.

I understand Firstplus are still writing to the wrong address. It would be helpful if it amends
its records to reflect the correct respective addresses of Mr and Mrs T.”


my findings

I’ve considered all the available evidence and arguments to decide what’s fair and
reasonable in the circumstances of this complaint.

Firstplus confirmed it received my provisional decision. In its response it said in summary;

1. Firstplus was in no way responsible for the financial difficulties in which Mr and Mrs T
found themselves in. It had a second charge over the property which was intended to
alleviate financial burden through debt consolidation.

2. The impact of the provisional decision meant that Firstplus are left in a situation
where the first charge lender is entirely protected but it is not.

3. It asked for me to direct that the proceeds of sale be split proportionally between
NRAM and Firstplus.

Mr T responded to say his concern was whether or not Firstplus would be amicable following
this decision in principals. He was concerned that a significant amount of the total amount
outstanding to Firstplus was due to escalating interest charges and he didn’t want to endure
the past treatment in the future by Firstplus.

Mrs T confirmed she had received my provisional decision and had nothing further to add.
I have considered very carefully what all parties have told me.

Whilst I accept that Firstplus wasn’t responsible for Mr and Mrs T’s financial difficulties, it
agreed to take a second charge over the property. This meant that once the property was
sold it would only be paid after the first lender had been paid its share. By giving a second
charge mortgage it took the risk that the property wasn’t valuable enough to pay of both the
first mortgage and its second charge. So I don’t think it would be fair or reasonable to ask
the first charge lender to split the sale proceeds proportionally between NRAM and Firstplus.

I am sympathetic to Mr and Mrs T’s situation. But I can’t ask Firstplus to refund the interest
charges accruing as I think its likely Mr and Mrs T wouldn’t have been in any different
position even if the sale had taken place earlier. However, I would ask that Firstplus treat
Mr and Mrs T sympathetically while the debt is being sorted out.

my final decision

For the reasons given above I uphold this complaint. Firstplus Financial Group Plc should
pay compensation as set out below:

Firstplus should:
 Calculate what would have been paid as additional payments in mortgage interest to
the first charge lender, three months from the date of the original offer to the final
completion date in 2015 and refund this together with any arrears fees or penalty
charges to NRAM.

 Pay a sum of £2,500 to Mr and Mrs T for trouble and upset.

Under the rules of the Financial Ombudsman Service, I’m required to ask Mr and Mrs T to
accept or reject my decision before 16 November 2015.

Nicola Woolf
ombudsman

[skintmember]

Re: FOS Ombudsman Final Decisions

I would like a to further my complaint and have a financial Ombudsman look into my complaint

A few issues I have with the certain parts of your decision.

With regards to the SFC, I feel that you have made a serious error of judgement, as I feel there are a number of assumptions being made. on nothing more than hearsay statements made by the bank.

Bearing in mind the fees were taken monthly you stated

"However, as you were receiving weekly statements, I would have expected you to raise your concerns sooner if you had not asked for weekly statements.

How was I to know that there was a chargeable fee, for weekly statements when the bank could not tell me what the actual charge was for ? Moreover how is anyone to know that this was something that would be charged for, unless the bank wrote to me stating as much.

How do you know that the weekly statements were not something the bank had foisted off on me,

and indeed I find it very strange that any bank would not know what a charge is being made for.

I Wouldn't pop into my local shop, not buy anything and then be told to pay them money, when they could not tell me what I was paying for?

It is obvious to me there has been inadequate internal processes of the standing order.

From what I have read, If the bank need to amend the amount or date of a payment, the standing order will need to be cancelled and a new one set up. It is the banks duty to convince the customers to change the standing orders themselves! (Not change it without consulting the customer) then deny all knowledge of it.

From what I can gather sfc ( in this case is more than likely to mean) standard fee charge. Fixed payments at regular intervals only. The bank are claiming it is a non standard service so the terms and conditions have their own terms and conditions I have yet to be given a copy of them.

I don't believe I was ever given a choice when the standing order would be taken As I wouldn't have allowed it to Be set up on this date as I have said before I would have set up a standing order to come out on the 25th of the month or later.

The fees were payable via standing order usually taken on the 15th why wasn't the payment taken on the same date along with other bank charges that taken on the 17/19 of the month. Depending on weekends again this is misleading to the customer. (I am not a business customer)

In fact I believe that weekly statements were useless I wouldn't want a weekly bank statement that when it arrives is 5 days behind from the statement date. Almost a week behind. The transactions haven't been fully reckoned up i.e. all transactions with balances showing against each transaction.

You have not dealt with the issue of

a standing order cannot be changed by the payee only by the person making the payment. I fail to understand why this has not been taken into consideration. I cancelled the standing order in 2011 less than 3 years from when I first questioned it i only found out it was for weekly statements In 2015

I feel the 3 year rule should stand How am I supposed to complain about something when 'I don't know who I'm supposed to be complaining to!

What do you think guys???

[nemesis45]

Re: FOS Ombudsman Final Decisions

I agree there are some anomalies in this.

Don't know if the FOS will accept further submissions after a "final decision".

Worth a try though skint!!

nem

[leclerc]

Re: FOS Ombudsman Final Decisions

Hi Skintmember,

I kinda wished I'd seen this earlier but a lot of thread in regards to FOS decisions are pretty negative so I tend to avoid them like the plague. Is there any way to have the FOS put the issue on hold whilst you ask Yorkshire Bank to audit your account for access to it by their own members of staff? Is it possible for them to see who accessed your account during 2009 only and possibly do this under a SAR. If you've already quoted a date in 2009 or even 2011(so amend their who accessed the account search to just 2011). All you need to prove is balance of probabilities so if you've quoted a date and staff had accessed it then the balance is likely to be proven. Does that make sense? Then you can prove either 2011 or 2009 and therefore 6 years. I am surprised that the FOS did not look at compensation from the first point of contact but perhaps an audit of bank staff access to your account might be better.

I hope that might help others already assisting on your account(ps. they would be dumb not to be able to work out who accessed your account since how can you prove fraud otherwise ).

[Openlaw15]

Re: FOS Ombudsman Final Decisions

If you're anything like me you'll want to know who's who when you're dealing with people. ""Nicola Woolf, ombudsman

appointed October 2013
career history

• partner, Corren Troen Solicitors
• assistant solicitor, Jennifer Israel
• assistant solicitor, Alan Ross and Partners"

Nicola Woolf is a Panel member of the Ombudsman. Look for surname, A-Z. http://www.financial-ombudsman.org.u...budsmen.html#w She is only a member of many Panel Ombudsman, so as not senior management therefore so you can complain: http://www.financial-ombudsman.org.u...ur-service.pdf

[Fred]

Re: FOS Ombudsman Final Decisions

An FOI request has asked the FOS about instructions or guidance for staff on how they should behave on discovering a business has acted fraudulently during an investigation.
Answer: NO INFORMATION HELD. Surely there must be an error here…can there really be 2000 adjudicators and ombudsmen without guidance (so acting as they personally think best) when a firm behaves fraudulently ?
Question
“Can you please advise on the actions you take when you become aware that
a complained about business has made a fraudulent submission (ie. a false
representation) which is (or is intended to be, or was) used by an
adjudicator/ombudsman when deciding a complaint?
When you later become aware of a submission that was fraudulent, how does
this affect any published ombudsman decision?”
Response
Unfortunately we don’t hold any recorded information on how we’d approach the
specific situation that you’ve highlighted.
This is similar to something at the Legal Ombudsman who have no guidance for staff on how to handle a complaint that an ombudsman may have been biased.

[nemesis45]

Re: FOS Ombudsman Final Decisions

An FOI request has asked the FOS about instructions or guidance for staff on how they should behave on discovering a business has acted fraudulently during an investigation.
Answer: NO INFORMATION HELD. Surely there must be an error here…can there really be 2000 adjudicators and ombudsmen without guidance (so acting as they personally think best) when a firm behaves fraudulently ?
Question
“Can you please advise on the actions you take when you become aware that
a complained about business has made a fraudulent submission (ie. a false
representation) which is (or is intended to be, or was) used by an
adjudicator/ombudsman when deciding a complaint?
When you later become aware of a submission that was fraudulent, how does
this affect any published ombudsman decision?”
Response
Unfortunately we don’t hold any recorded information on how we’d approach the
specific situation that you’ve highlighted.
This is similar to something at the Legal Ombudsman who have no guidance for staff on how to handle a complaint that an ombudsman may have been biased.

Perhaps the question should have been A Dishonest Submission rather than Fraudulent Fred.

nem

[Fred]

Re: FOS Ombudsman Final Decisions

Perhaps the question should have been A Dishonest Submission rather than Fraudulent Fred.

nem

Yes...........perhaps then, there may be some commitment towards an answer but, is that not what the FOS is supposed to do best, as in, interpretation of consumer enquiries at all levels ?

I found it interesting.......so posted.

[nemesis45]

Re: FOS Ombudsman Final Decisions

Yes...........perhaps then, there may be some commitment towards an answer but, is that not what the FOS is supposed to do best, as in, interpretation of consumer enquiries at all levels ?

I found it interesting.......so posted.

Yes very interesting!

I have found in the past that fraudulent is taboo dishonest gets more comment.

nem

[skintmember]

Re: FOS Ombudsman Final Decisions

I have received the FOS final decision I have tried to upload some pictures of the decision as they didn't send me an email can anyone help
basicly as predicted agreed with the adjudicator.

[skintmember]

Re: FOS Ombudsman Final Decisions

Im sending a Sar off tomorrow FOS Agrees with adjudicator can't look into parts of the complaint due fca rules tying to upload but it's not letting me! :notworking2"

[R0b]

Re: FOS Ombudsman Final Decisions

[MENTION=6]Amethyst[/MENTION] may be able to help