Posts Tagged ‘FOS’

How Will the New Lending Code take effect?

November 9, 2009

One can probably trace the genesis of the new Lending Code, from FSA bombshell about taking over the Banking Code, to realising parts belonged under the OFT, to realising that means rewrites, to thinking the best people to write it would be the current possessors, to conveying that information and then to actually confirming.

Only after that could the British Banking Association deal with the severe truncation of its code and the Lending Standards Board, as the prior Banking Code Standards Board is now known, start reorganising.

It was a severe disappoinment to me that he result of this meant the code was not ready for examination and comment long before it came into effect. Indeed it was not in sight until the moment of becoming The Code.

So it is no surprise to any of us if understanding how the changes in it will be worked is not yet extant.

In my discussions with the FSA, the BBA and the OFT – I have not attempted to ask the FOS yet – I have asked the following questions and made the following points.

1. How will the mental health section, pars 173-183, which is entirely new and very important for affected debtors, apply to existing cases

2. It seems likely that a court would interpret its application to an existing collection at any point of change; but what would be the relevant criteria for ‘change’?

3. Where a complaint has reached final response and is then either on its way to or with the FOS how does the FOS utilise pars 173 to 183. There are many ways to do this, including returning the complaint to the creditor or agent with instructions to reconsider it in light of the new pars.

4. In par 183 reference is made to the MALG advice of 2007 as further guidelines, virtually bringing the whole of them in to the code. These are about all vulnerable debtors ]probably including borrowers whether in financial difficulties or not. As this ties in firmly to the CPRs on vulnerable customers, adding a definition in part, to what extent are all vulnerable debtors assisted by the new paragraphs.

5. As the OFT is the enforcing agency, the FOS, and all debtors and their advisors, will need to know your position on them. Will you advise when the necessary advice is issued, and give details of that advice?

I would point out that the creditors, as large and powerful institutions and with various industry bodies, lobby intensively both on legislation, rules and codes, as well as interpretations. While there are seriously over-stretched charities who represent debtors they either do not specialise or are not big enough to offer a strong countering voice in this area.

6. The voice of the actual debtor is simply not heard and his lobby is weak. Even the ombudsman, the FOS, is actually funded by the industry, and its influence is very clear in process.

7. Through the credit licences the OFT has considerable power to ensure better observance of rules and a more balanced judgement by the FOS; yet from the debtor’s point of view that power is used very lightly.

8. The OFT is the body upon which the debtor must rely to make sure the rules there are effective. This is a matter I will return to.

Joseph Harris, Debt Control Man
Author: Control Your Debt Crisis on Your Own Terms
http://www.controlyourdebtcrisis.co.uk

 

Advertisements

New Banking Code?

June 24, 2009

I assumed that the take over of the Banking Code by the Financial Services Authority (FSA) is going to make a much more useful regime, from the point of view of the debtor.

Now I am far less certain.

Catching up on material like the comments to the last review of the code, and comments on the FSA proposals, I find that the FSA proposals appear to change from the rule approach to a ‘principles-based’ one.

Now your guess is as good as mine as to what that means. Next month the FSA is to publish its proposals – for adoption in November. Do keep an eye open for these proposals.

The Citizen’s Advice Bureaux (CAB), for example, expresses great concern about the proposed changed of style and the fact that the enforcement will be even less than the limp penalties under the British Banking Association (BBA) regime.

CAB points out that the very ones who are most likely to suffer are the vulnerable, the very ones that any system of regulation is most vital to. And, boy!, what grand quagmires lie ahead for interpretation of principles.

The ordinary debtor already faces a seriously uphill struggle. The information most needed is obscure, the area is one they are not familiar with, and they face trained and professional takers backed by massive organisations who wear their legal departments like the six guns of a ‘black hat’ in western films.

The FSA, the FOS and the OFT are all supposed to be making that ‘playing field’ more level and refereed. With this change in prospect my fear is that the field will turn into a blood bath of the innocent. Just like Peterloo.

[Peterloo happened shortly after the Battle of Waterloo and named as a disgraceful mirror of that greatness. It happened on St Peter’s Field near Manchester in 1819. This peaceful meeting was demanding the reform of the parliamentary system – déjà vu!

The crowd of over 60,000 unarmed civilians was charged by cavalry. The whole history of the period was one of the two Britains; that of the industrial and agricultural owners and that of the ordinary people. At least Peterloo shamed the political leadership and reforms followed.

The great 1832 Reform Act was one and the introduction of a civilian police force another. The latter unarmed in response to the shame of Peterloo.]

Joseph Harris
Debt Control Man

Does the FOS Work for Us?

April 14, 2009

I have earlier praised the Financial Ombudsman Service for its very existence.

My thinking is that it will act as a check on creditor failures to observe the rules, and that findings would take into account these rules in dealing as ‘piggy in the middle’.

Well I’ve been in ‘the waiting room’ of the FOS now for over a year and I am far less certain of this. Even more important I am very concerned at the extent to which the debtor has still to fight to get a proper hearing.

I cannot give you full details of the cases involved, since to mention the companies could well bring those savage legal departments sniffing like the monsters in any one of a thousand science fiction films! I can say that the process of the FOS is wearing for the debtor.

That process is three-stage. More if you take the delays into account.

The queue does of course relate to the changes in the volume of work, and the time it takes to train up; no basic criticism over that since it has to take the banks’ unfairness on its shoulders. and we know there is plenty of that.

First stage of actual process is with the adjudicator. Here one is dealing with a new process, so in essence it is necessary to repeat the arguments you have given to make sure they are fully understood, together with one’s perceived faults in the bank or credit card company response.

If you don’t like that – and from my experience don’t expect to – you can ask for the adjudication to be reviewed. If you don’t like that you can request your case go to an actual Ombudsman. Each time you need to re-present your case to some extent.

Now I am sure many people are happy with their experiences at the FOS so I am not going to dismiss its work out of hand, but sometime this year I will be dealing with an actual Ombudsman and that will certainly tell me whether I still have praise for the process.

Any way, for the umpteenth time now I am having to prepare my response to what I consider an appalling adjudication which reads to me almost like a letter from one of the companies.

I plan to write more on the service, and on the whole process, here, in my book, and on my website.

Joseph Harris
Debt Control Man

A Word For Debt Collectors

October 5, 2008

Preparing part of the step by step book I am hoping to have ready for you very soon I had to think about debt collectors.

And, in a way, I do have some sympathy for them. And moreso perhaps for their staffs.

There are, after all, one or two areas where their activities are useful. These are where the people who they are chasing really are out to cheat and maybe involved in scams of one sort or another. And they seem to have an expertise in hunting down people who move around.

That is a word for them in support. There is another word for them when they are making the lives of people trying to do their best a misery.

Putting aside the scurrilous game of chasing debts that are out of time or already paid, they cannot get involved unless the creditors call them in.

Now in my experience creditors call in debt collectors inappropriately. They call them in when there is a negotiation on the table. I have seen them called in when the creditor tells me I have eight weeks to respond to a letter.

I have seen them called in when a negotiation has moved on the the FOS. Once there, until the FOS reaches a decision the matter is in arbitration.

I have seen them called in erratically during early exchanges of a negotiation. And I have seen them called in even after an agreement has been reached.

And I have seen recovery teams within a creditor formed into an inhouse debt collection agency, with all the pretence of being a separate company.

So, while there are many things to be said about the manner of debt collectors, they really should be in the mix only after all negotiation, including the FOS arbitration, has been completed AND if here remains real reason to believe that default is deliberate; and that means NOT by assumption, by rote or by procedure.

And there are many things to be said about the manner of debt collectors. Here the regulators are very weak in enforcing fairness. But that deserves not just another post in this blog, but a whole book!

Joseph Harris
Debt Control Man

Your Debt Crisis, Making Notes

August 26, 2008

I don’t know anybody that really enjoys the nature and the discipline of making notes. And I most certainly include myself. But, in my view, notes you must make.

Unless you manage to come to a very quick agreement the debt negotiation can take months. I have four accounts entering their sixteenth month, and set fair for a few more. Don’t worry if they take time.

What is important is to realise that you cannot commit all that is happening to memory. Your memory is probably better than mine, but can you remember a phone call you made six months ago? Unless you are a rare person with a photographic memory I doubt it.

In negotiating for a settlement to your debt you will be approached by phone and by letter. Each time a record of some sort is placed on your computer file.

But will it be the same as what you believe took place? You won’t know; no-one is going to tell you. But your creditor will use that record to judge you, the debt, and how he wants to pressure.

So you must make a full note of the conversation. You can have pen and paper ready by the phone. Or ask the caller to wait while you get them, or get the file you have on that particular creditor.

And what should the note say? First the name of the caller, the company, and if it is not the original creditor the the name of that one. The date is vital, and the time of the call is important.

It is also a good idea to ask where the caller is based. The conversation will go differently if you are being called from a call centre in Bangalore, than if you are being called from one near your home.

You can interrupt the conversation to make a full note if you feel you need to. Sometimes a statement by an agent is so outrageous you want to make sure that it is recorded in full. The agent at the other end is making notes, and the conversation is also being recorded that end.

You are fully entitled to have the time to make your own notes, even to make your own recording if you have the equipment and the know-how.

If the creditor’s agent does make an outrageous statement you need to follow up with a complaint to a superior. This is best done in writing, since it makes a record that must be responded to. And it is available for the FOS or other third party to read and understand the failings of the creditor.

Recently, in a debt case before the FOS, I had a creditor pass the debt to a debt collector. I phoned the creditor and first received a helpful response and a promise of a return call. The young lady who returned the call refused to contact the FOS to confirm that the case was before them.

I now have a rather apologetic letter from the office of the Chief Executive Officer of that organisation. And I wrote to both the FOS and the Office of Fair Trading informing them of this failure.

How do you think the FOS will view that creditor when dealing with my debt case? And how will the organisation be viewed with other cases that go before it? And how will that look on the file of the Credit licence of that organisation at the OFT?

You have power to defend your position. Use it.

Joseph Harris
Debt Control Man

Interest Rate Action 1 of 3 – Complain

July 31, 2008

Creditor Complaints Procedures and FOS

We have got so used to being told what to do by big companies, and have placed so much trust in them that it comes as a shock when we find their feet are of clay. Similar to the day we realised our parents do not know all the answers to everything!
So realising that the credit offering companies are more concerned with their profits and bonuses than with our needs is a bit of a culture shift. Alright I exaggerate a bit – but not as much as you might at first think.
The question then is what to do about it.
We have more power than you might think in this. And that power is in complaint. Not at the pub across a pint of beer, or in bed at night to our partners.
To be effective complaint has to be focused and clearly thought through. So let us start with the companies’ own complaints procedures.
We start there because it may be that we can get a quick result, and save the further effort. But don’t count on it!
There is a second reason. Only after we have completed that procedure can we take the issue to the Financial Ombudsman Service (FOS); and this latter is worth doing.
If you are being charged an interest rate that is higher than 18% a year on a credit card [that is 1.5% a month] or than 9% for a term loan, or 18% on direct mail you do, in my opinion, have cause for complaint about that interest rate.
Even those cut off points are high rates to me, but we have to find points that are not themselves going to be cause of argument. Anything above these levels while Bank Rate is below 6% is usurious, and therefore immoral in the terms accepted by three major western religions for thousands of years.
Somewhere on your statement should be information about the complaints procedure of that company. It is a requirement for all members of the Banking Code and even non-members are expected to conform by the FOS.
The main points to get across about any sharp upward change in your rate at any time recently is that it is unfair and unreasonable. ‘Unfair’ is an important term in the Consumer Protection Regulations 2008 and the test of reasonableness is basic to British law.
You will need to make sure you put both the old and new interest rates in and point out that Bank Rate has not increased by even one percent in the period and therefore there is no case for this force majeure change to the rate charged to you. In part you should remember this letter will form part of what the FOS will work from so it needs clear information in it.
Send this letter off and wait for the answer. You should get an acknowledgment and usually about eight weeks later a final response.
If the final response does not reduce your rate to a sensible figure you send a formal complaint to the Financial Ombudsman Service. This will take a long time because the service is terribly overloaded already. But wait patiently and you should get a positive response. The FOS has the power to force the creditor to change the rate and/or make the company pay compensation.
Get the appropriate forms from the FOS website.
A lot of such complaints will encourage the FOS to raise the matter with the regulators.
See also the next two blogs I am preparing Interest Rate Action 2 of 3 – Complain which deals with contacting the Office of Fair Trading and Interest Rate Action 3 of 3 – Complain Which deals with the Financial Services Authority.

Joseph Harris
Debt Control Man