Appealing Ombudsmans finding to High Court: Banks failure to recover mortgage payment

I have just received a finding against me from the Ombudsman in relation to a complaint about a Banks failure to recover mortgage payments for 6 months.

The Ombudsman's finding was that it was my responsibility to set up a Standing Order on the account despite:

1. Having phoned them on numerous occasions to tell that that no payments were coming out of my account.

2. Never having been asked to (I had given my the details of the account from which payments were to be made to the Bank on a form and assumed this was a Direct Debit mandate as the Mortgage was a variable rate)

3. Not having been told where my account was located (The account was opened in Branch A, managed from Branch B and located in Branch C) so would not have been able to set up a Standing order anyway.

I am now considering appealing the Finding to the High Court as this is the only option to reverse the finding and am just wondering
a) Has anyone on the site any experience of this?
b) Are the costs prohibitive if the Judgement goes against me?

Re: Appealing Ombudsmans finding to High Court: Banks failure to recover mortgage pay

What does your solicitor advise?

Re: Appealing Ombudsmans finding to High Court: Banks failure to recover mortgage pay

HI SN

Let's look at the facts of the case as you describe them.

You took out a mortgage.
You were due to make mortgage repayments.
You did not make those mortgage repayments admittedly due to the bank's fault.

As you did not make the mortgage repayments, they are due to be paid now.

Generally, people and institutions are allowed to make mistakes. If someone lodges money into my bank account by accident, I repay it to them. If I over pay someone by accident, I expect them to point it out and refund me the overpayment.

So based on the facts of your case, you owe the money to the bank.

I am surprised that the Ombudsman did not make a token award to you for the maladministration you allege, but it would be somewhere in the order of €100 to €500.

I know that this is not the answer you are looking for, but you need to know this before spending more money consulting a solicitor. You would be likely to pay the High Court costs on both sides and the High Court would only reverse the decision of the Ombudsman if there was some legal error.

I don't think that the High Court has yet reversed any decision because they disagreed with it.

Brendan

Re: Appealing Ombudsmans finding to High Court: Banks failure to recover mortgage pay

Hi Brendan,
thanks for the response. I've always accepted the payments would have to be made, its just that I had spent the money from the missed payments on doing up the building, so was hoping to add them on to the end of the mortgage but they wanted it all back in one lump sum. I'm trying to negotiate with them now, but they are using the Ombudsmans Finding to justify taking a very agressive attitude towards me and have sent me a repossession notice in the meantime depsite the fact that I have never missed a Mortgage Payment once they finaly gave me the Account Details to set up the payment. I was mainly considering going to the High Court in the hope of getting them to accept at least that they caused the problem and should be trying to sort it out rather than trying to reposess a property they would then have to sell at a huge loss.
Will have a chat with my Solicitor too,
Thanks,
R

Re: Appealing Ombudsmans finding to High Court: Banks failure to recover mortgage pay

HI SN

That is a bit different.

The problem as I see it is that you knew that the money was due, but you spent it. You are unable to pay off the lump sum because you spent money which you knew was not yours.

I can see why the Ombudsman had little sympathy.

I don't expect the High Court to view it any differently.

Having said that, I am surprised that the bank did not capitalize the arrears.

I presume that relations between you and the bank have broken down and the bank has the upper hand now. I suggest that you get your solicitor to negotiate on your behalf.

Brendan

Re: Appealing Ombudsmans finding to High Court: Banks failure to recover mortgage pay

S.N.Dipity said:

3. Not having been told where my account was located (The account was opened in Branch A, managed from Branch B and located in Branch C) so would not have been able to set up a Standing order anyway.

Click to expand...

This last point is more then likely completly irrelevant, once you had the sort code and account number you should have had no issue setting up a SO, most of these are done centrally

Re: Appealing Ombudsmans finding to High Court: Banks failure to recover mortgage pay

What actually happened was -
1) My Relationship Manager told me on the number of occasions that I phoned to enquire why the payments had not been taken from my account that I was being allowed 'breathing space' to pay Stamp Duty and Solicitors Fees, and since I had aleady paid these I decided to start on the refurbishment works to my site. I did not as you stated spend money that was not mine
2) I was never asked by the Bank to set up a standing order, nor was I given a sort code for my account so it was impossible for me to have done so. The Loan agreement lists an account number only. I actually wrote to the Bank requesting written confirmation as to where my account was located and had to send the letter 4 times before it was finally answered almost 1 year later.
3) When someone in the Bank finally listened to me after I had informed them repeatedly that no payments were being taken from my account and I was finally asked to set up a Standing Order I did so within 24 hours.

My complaint is that I made every effort to ensure the account was in order and the only mistake I made was to believe my Relationship Manager when he told me the payments were being defered. I fail to see why I am now the one who has to suffer for the mistakes of the Bank by having to pay additonal interest for the period during which payments were not recovered when I was more than willing to make the payments.

All I am learning from this forum is
a) in Banking the Customer is always wrong
b) the High Priests of Modern Capitalism will not entertain having their actions, or lack of questioned
c) never accept the spoken word of a Banker

Re: Appealing Ombudsmans finding to High Court: Banks failure to recover mortgage pay

So basically you're saying
-you took out a mortgage,
-your relationship manager told you, "don't worry about the repayments at this stage, get yourself on your feet and start repaying us later on",
-you spent the money you would have used for repayments on doing up the property (curious as to how you had originally planned on doing this)
-you asked the bank could you pay them the missed payments in say, 20 years time(or whenever the mortgage starts to end)

Your mistake here was firstly never getting any of this in writing from the relationship manager. As a result, this comes down to a he said/she said type of arguement and because your story sounds, and I mean no disrespect when I say this, both a little fanciful and is probably not in accordance with the legal contract you signed with the bank, I would not necessarily blame the Ombudsman for deciding the way he did.

I'm not doubting what you are saying, as an outsider looking at this, it looks a bit unusual

The liklihood is, that unless you can prove what you are saying is correct, the High Court will not side with you and you will be left with a hefty legal bill for yourself and the bank.

The standing order issue is a minor thing, you could have walked into any branch with an account number and a cheque book and made payments. I'm not saying the bank weren't incompetent on this, they were but that still is not a major defence in this issue

As for your last comment, absolutely true, but you can be also be sure most bankers don't necessarily accept the spoken word of the customer.

Re: Appealing Ombudsmans finding to High Court: Banks failure to recover mortgage pay

I'm sorry, firstly I find it very hard to believe you did not fill out a DD form whn applying. Secondly, at the end of the day, you should have taken charge and not spent that money. You should have got a letter saying you had time before paying. If it's not evidenced, it doesn't exist.

Re: Appealing Ombudsmans finding to High Court: Banks failure to recover mortgage pay

As far as I was aware most bank's now get a Direct Debit Mandate signed at application stage of mortgage process, which would have ensured you didn't find yourself in your current situation....

Be that as it may - prior to taking case to Ombudsman, he/she wil insist that you've taken your case through the bank's internal complaints process fully, before he/she will look at it ....

I also take it that you've fully outlined all you've stated on this site to the Ombudsman (and more I'm sure)...

... and having done all of the above both the bank and the Ombudsman have disagreed with you; on that basis I think you need to think very carefully about taking case to High Court - the costs if you lose could be substantial - if you are prepared to take that risk then fair play to you - not sure I would...

If I were in your sitution I would be attempting to come to some ageement (in writing) as to how you will make good the amount owing, like Brendan I would have thought the bank would be prepared to capitalise the amount, and be happy with the fact that you were prepared to make full repayments on that basis,have you discussed this or any other option with them?

Re: Appealing Ombudsmans finding to High Court: Banks failure to recover mortgage pay

This is a quite incredible story, you didn't make any mortgage payments for a year and you want to blame the bank. You should have ensured that this was sorted out. The very least you could have done is saved the year's payments in a separate account.

Frankly I don't believe that a bank staff member told you not to worry about it, that it was to give you time to sort out things. This makes no sense whatsoever.