ACENDEN / CAPSTONE MORTGAGE action group

MCOB 13: Arrears and repossessions is of particular importance in the context of mortgage litigation:

13.1 Application

Who does it apply to?

Mortgage lenders and mortgage administrators (and firms that were mortgage lenders or mortgage administrators before the sale of a repossessed property took place).

13.2 Purpose

What does it do?

It applies the provisions of MCOB 13 with respect to administering a regulated mortgage contract, and administering a mortgage shortfall debt

It amplifies MCOB 6 (duty to treat customers fairly) in respect of the information and service provided to customers who have payment difficulties or face a mortgage shortfall debt

13.3 Dealing fairly with customers in arrears: policy and procedures

(1) A firm must deal fairly with any customer who:

is in arrears on a regulated mortgage contract; or

has a mortgage shortfall debt

(2) A firm must put in place, and operate in accordance with, a written policy (agreed by its respective governing body) and procedures for complying with (1).

13.3.2 Policy and procedures: content

A firm should ensure that its written policy and procedures include:

(a) using reasonable efforts to reach an agreement with a customer over the method of repaying any payment shortfall or mortgage shortfall debt, in the case of the former having regard to the desirability of agreeing with the customer an alternative to taking possession of the property;

(b) liaising, if the customer makes arrangements for this, with a third party source of advice regarding the payment shortfall or mortgage shortfall debt;

(c) adopting a reasonable approach to the time over which the payment shortfall or mortgage shortfall debt should be repaid, having particular regard to the need to establish, where feasible, a payment plan which is practical in terms of the circumstances of the customer;

(d) granting, unless it has good reason not to do so, a customer's request for a change to:

(i) the date on which the payment is due (providing it is within the same payment period); or

(ii) the method by which payment is made;

and giving the customer a written explanation of its reasons if it refuses the request;

(e) giving consideration, where no reasonable payment arrangement can be made, to the customer being allowed to remain in possession to effect a sale; and

(f) repossessing the property only where all other reasonable attempts to resolve the position have failed.

13.3.9 Record keeping: arrears and repossessions

(1) A firm must make and retain an adequate record of its dealings with a customer whose account is in arrears or who has a mortgage shortfall debt, which will enable the firm to show its compliance with MCOB 13.4 (Arrears: provision of information to the customer), MCOB 13.5 (Dealing with a customer in arrears or with a mortgage shortfall debt) and MCOB 13.6 (Repossessions).

(2) A firm must retain the record required by (1) for a year from the date on which the relevant payment shortfall or mortgage shortfall debt was cleared.

13.4 Arrears: provision of information to the customer

If a customer falls into arrears on a regulated mortgage contract, a firm must as soon as possible, and in any event within 15 business days of becoming aware of that fact, provide the customer with the following in a durable medium:

(1) the current FSA information sheet on mortgage arrears;

(2) a list of the due payments either missed or only paid in part;

(3) the total sum of the payment shortfall;

(4) the charges incurred as a result of the payment shortfall;

(5) the total outstanding debt, excluding charges that may be added on redemption; and

(6) an indication of the nature (and where possible the level) of charges the customer is likely to incur unless the payment shortfall is cleared.

13.4.4 Customers in arrears within the past 12 months

If a customer's account has previously fallen into arrears within the past 12 months (and at that time the customer received the disclosure required by MCOB 13.4.1 R), the arrears have been cleared and the customer's account falls into arrears on a subsequent occasion a firm must either:

(1) issue a further disclosure in compliance with MCOB 13.4.1 R; or

(2) provide a statement, in a durable medium, of the payments due, the actual payment shortfall, any charges incurred and the total outstanding debt excluding any charges that may be added on redemption, together with information as to the consequences, including repossession, if the payment shortfall is not cleared.

13.4.5 Steps required before action for repossession

Before commencing action for repossession, a firm must:

(1) provide a written update of the information required by MCOB 13.4.1 R(2), (3), (4), (5) and (6);

(2) ensure that the customer is informed of the need to contact the local authority to establish whether the customer is eligible for local authority housing after his property is repossessed; and

(3) clearly state the action that will be taken with regard to repossession.

13.5 Dealing with a customer in arrears or with a mortgage shortfall debt

13.5.1 Statement of charges

Where an account is in arrears, and the payment shortfall or mortgage shortfall debt is attracting charges, a firm must provide the customer with a regular written statement (at least once a quarter) of the payments due, the actual payment shortfall, the charges incurred and the debt.

13.5.3 Pressure on customers

A firm must not put pressure on a customer through excessive telephone calls or correspondence, or by contact at an unreasonable hour.

13.6 Repossession

A firm must ensure that, whenever a property is repossessed (whether voluntarily or through legal action) and it administers the regulated mortgage contract in respect of that property, steps are taken to:

(1) market the property for sale as soon as possible; and

(2) obtain the best price that might reasonably be paid, taking account of factors such as market conditions as well as the continuing increase in the amount owed by the customer under the regulated mortgage contract.

13.6.3 If the proceeds of sale are less than the debt

(1) A firm must ensure that, as soon as possible after the sale of a repossessed property, if the proceeds of sale are less than the amount of the customer's debt, the customer is informed in a durable medium of:

(a) the mortgage shortfall debt; and

(b) where relevant, the fact that the mortgage shortfall debt may be pursued by another company (for example, a mortgage indemnity insurer).

(2) If the decision is made to recover the mortgage shortfall debt, the firm must ensure that the customer is notified of this intention.

The notification referred to in (1) must take place within five years of the date of the sale (if the regulated mortgage contract is subject to Scottish law) or within six years (in all other cases).

13.6.6 If the proceeds of sale are more than the debt

A firm must ensure that, on the sale of a repossessed property, if the proceeds of sale are more than the amount of the customer's debt, reasonable steps are taken, as soon as possible after the sale, to inform the customer in a durable medium of the surplus and, subject to the rights of any subsequent mortgage or charge holders, to pay it to him.

We aim:

1. To name and shame Capstone Mortgage Services as a disgraceful Third Party Administrator which specialises in ripping people off before dispossessing them.

2. To highlight the appalling practices of this firm which are systemic and unlawful and which cause huge consumer detriment.

3. To highlight the fact of insolvent trading by the Lehman Bros entities including SPML, SPPL, and PML; to further highlight their failure to comply with their legal responsibilities to submit accounts or appoint directors.

4. To challenge the locus standi of Capstone Mortgage Services to issue claim on behalf of the originating lender.

5. To campaign and lobby the regulators such as the Financial Services Authority to halt these abuses NOW, by applying the law and regulations as they exist.

6. To assist anyone in the process of fighting unlawful, falsely premised and vexatious repossession claims to mount a viable defence.

7. To campaign for fairer hearings before the courts in repossession claims than the anecdotal evidence suggests is currently the case.

8. To encourage in the media wider reporting of the fall-out for thousands of British families and households of the Lehman Bros bankruptcy.

9. To alert all concerned that the cynical makeover from Capstone to Acenden is nothing more than a PR rebranding exercise and has if anything resulted in more of the same from this appalling 'mortgage servicer.'

This is not just our manifesto. It is yours too. Feel free to post up suggestions and they will be considered for inclusion.

In terms of the issues raised around securitisation, we expect a firm to adopt the same approach to forbearance for borrowers with mortgages that have been securitised as for borrowers whose mortgages remain on the firm’s books. Securitisation covenants should not constrict a firm’s ability to treat its customers fairly by exercising appropriate forbearance strategies.

Margaret Cole, director of enforcement and financial crime at the FSA said:

"FSA rules ensure that financial services firms operate safely, protecting both their customers and the industry itself. Anyone found flouting those rules will face stiff penalties."

Really? Or did you mean THIS:

When I use a word,' said.... in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less."

SPML 56% found in favour of complainant

1 July 2009 – 31 December 2009 – new cases

Kensington 50
SPML 56

1 July 2009 – 31 December 2009 – resolved cases

Kensington 50% resolved in favour of complainant
SPML 40% resolved in favour of complainant

1 January 2009 – 30 June 2009 – new cases

GMAC 54
Kensington 70
Preferred Mortgages 31
SPML 92

1 January 2009 – 30 June 2009 – resolved cases

GMAC 74% resolved in favour of complainant
Kensington 37% resolved in favour of complainant
Preferred 56% resolved in favour of complainant
SPML 48% resolved in favour of complainant

Direct from SPPL's Tariffs and Charges 2010

"All fees and charges are inclusive of VAT where applicable."

Now, where did we put those SPPL Accounts...?

From the many prospectuses...

"Neither the Issuer nor the Trustee currently intend to effect any registration at The Land Registry of England and Wales, the Registers of Northern Ireland or any registration or recording in the Registers of Scotland to protect the sale of the Loans"

Why not? It is a legal requirement that they do so and any failure amounts to a criminal offence.