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Ash
Ash, Solicitor
Category: Property Law
Satisfied Customers: 10915
Experience:  Solicitor with 5+ years experience
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I have mortgage arrears because the lender cannot locate payments

Customer Question

I have mortgage arrears because the lender cannot locate payments that I have made. I have taken it as a complaint to financial ombudsman but is there anything else I can do
Submitted: 10 months ago.
Category: Property Law
Expert:  Ash replied 10 months ago.
Hello my name is ***** ***** I will help you.
Do you have evidence of payments please?
Alex
Customer: replied 10 months ago.
Yes evidence has been submitted to the lender and financial ombudsman. The complaint has been ongoing since May 2013
Customer: replied 10 months ago.
As it currently stands the lender isn't cooperating with us and using everything possible to get out of reimbursing us
Customer: replied 10 months ago.
I just wondered what else I can do as the impression I'm getting at the moment is that I'm expected to pay the missing amounts again just because they cannot find them
Expert:  Ash replied 10 months ago.
How long has it been with the ombudsman for?
Customer: replied 10 months ago.
The first time it went to the ombudsman was September 2014, it is now back with them as the lender wrongly concluded on the previous complaint
Customer: replied 10 months ago.
Is there anything further we can do
Expert:  Ash replied 10 months ago.
Are you being asked to pay in effect twice?
Alex
Customer: replied 10 months ago.
Yes
Expert:  Ash replied 10 months ago.
You have 2 choices at this stage:
1) Let the Ombudsman run its course
2) Sue the lender for breach of contract
I can outline the process for breach of contract and it depends how much you have lost.
You need to write and set out your losses and request a refund within 14 days or say you will go to Court within 14 days. You should make sure you send this signed delivery and keep a copy.
If they do not refund you then you can issue proceedings in the County Court. You can either do this online at: www.moneyclaim.gov.uk  or by completing form N1 http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n001-eng.pdf and take it to your local County Court.
The Court will then issue a claim which a copy will be sent to the Defendant who will have a limited time to defend it, if not you can enter Judgment and enforce.
If the claim is for £10,000 or less it will be a small claim so you will not need legal representation. Over this value you would need representation for trial.
Can I clarify anything for you about this today please?
Alex
Customer: replied 10 months ago.
How likely is it to go in our favour if we have no positive outcome with the Financial Ombudsman?
Expert:  Ash replied 10 months ago.
I still think you have a case.
Alex
Customer: replied 10 months ago.
Sorry just to add they have issued a 15 day business day notice of possession, included with the notice was a proposal of repayment form asking us to contact to sort out an arrangement for the arrears
Customer: replied 10 months ago.
What do we do in regards ***** ***** we have informed the ombudsman.
Expert:  Ash replied 10 months ago.
If they issue proceedings you can defend it on the basis you have paid and show evidence.
Does that help?
Alex
Customer: replied 10 months ago.
Sorry just wanted to ask more regarding financial ombudsman. I've read some terrible reviews about their service online, someone said their decisions on cases are computer generated, other people saying they have to refuse 80% of cases, they are funded by big banks so look after each other
Expert:  Ash replied 10 months ago.
No, thats not the case at all about 80%. It a myth
Alex
Customer: replied 10 months ago.
So we should get an unbiased review?
Expert:  Ash replied 10 months ago.
Yes indeed. in any event you can get a decision reviewed by a Court as its a public body if you disagree with it.
Does that help?
Alex
Customer: replied 10 months ago.
What is the process to get a decision reviewed?
Expert:  Ash replied 10 months ago.
You would seek a High Court Judge to Judicially Review the decision. But you are not at that stage yet. Wait for the outcome from the Ombudsman.
Does that clarify?
Alex
Customer: replied 10 months ago.
Sorry can I just ask something else regarding this. A payment was made towards the mortgage from a relatives account. Is this in breach of any terms and conditions?
Expert:  Ash replied 10 months ago.
No., not unless the agreement says it is.
Alex
Customer: replied 10 months ago.
Thanks for replying. We were on a fixed rate mortgage and now just on a standard repayment mortgage on standard Bank of England interest rate. Would our terms and conditions change or would it be what we agreed to when we first went to the lender?
Expert:  Ash replied 10 months ago.
Your current terms and conditions. But its unlikely to be a breach, I would be very surprised.
Alex
Customer: replied 10 months ago.
We never signed a new contract or received copy of terms and conditions. It automatically went from being in a fixed deal to repayment amount we are in now
Expert:  Ash replied 10 months ago.
Ok, but it wont make any difference in reality if payments are coming from someone else.
Alex
Customer: replied 10 months ago.
Ok I just wanted to ask as the adjudicator has brought it up in an email saying generally speaking mortgage payments are to be made by account holders and is a general term in mortgage terms and conditions, making a payment from a relatives account could cause issues
Expert:  Ash replied 10 months ago.
But unless its against a term and you were notified then they can't rely on that.
Alex
Customer: replied 10 months ago.
Also I was under the impression that when we take a complaint to the ombudsman we give them our supporting evidence and they approach who we are complaining about for theirs? The adjudicator is going to the bank where we made the payments from to ask for our information even tho we have sent them it. Is this right?
Customer: replied 10 months ago.
We have never been notified this is the first time I've ever heard it mentioned
Expert:  Ash replied 10 months ago.
Yes because they may wish to confirm payments were made.
Alex
Expert:  Ash replied 10 months ago.
If this answers your question could I invite you rate my answer before you leave today.
If you don't rate then the site does not pay me for the time I have spent answering your question.
Please bookmark my profile if you wish for future help: http://www.justanswer.co.uk/law/expert-alexwatts/

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