Need advice with Mortgage problem

[Tuttsi]

Re: Need advice with Mortgage problem

With Mortgages they should keep documents for 10 years. so I cannot see how they have disposed of them.

[Never-In-Doubt]

Re: Need advice with Mortgage problem

DPA states that ALL relevant documents must be retained for a period of "no longer than is necessary for the reason for processing". HMRC rules state documents should be retained for at least 6 years after the end of the relationship (for inspection).


So in layman it means that if there's a live account ALL relevant paperwork must be retained. If there's a closed account they must retain any relevant paperwork for as long as necessary but no longer than +6 years. If an account is long dead then only basic details need to be retained such as details of the products / legal stuff / agreements etc.


hmrc -> http://www.hmrc.gov.uk/manuals/chmanual/ch14600.htm

Section 388 Companies Act 2006 contains its own period for which a company’s accounting records, see CH11400, must be retained. A public limited company (plc) must retain its accounting records for 6 years from the date they are made, whilst a private company (not a plc) must retain its accounting records for 3 years from the date they are made. For a private limited company, tax law requires records to be kept for a longer period so the only records they can destroy at the 3 year point are ones that it does not need for the purposes of completing a company tax return.

ico -> http://ico.org.uk/for_organisations/...ds/principle_5

Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.

[Never-In-Doubt]

Re: Need advice with Mortgage problem

Received a letter today, the gist is this:

'As per our policy, the maximum period we are required to hold documents relating to the mortgage is 6 years. As the mortgage was issued in 2002, we no longer hold documents relating to your mortgage application or the mortgage offer letter'

They also enclosed the Mortgage Current Account Terms and Conditions (England and Wales 2012 Edition), in which it does state that 'When your Loans are repaid in full any amounts outstanding under the Mortgage Current Account Reserve must be repaid at the same time'.

Any thoughts on how I should reply to this? The house is still on the market - a little interest, but no offers as yet.

is the mortgage live? If so they MUST retain ALL documents.

If it's dead / moved they only keep documents as per HMRC & ICO - so in theory for +6yrs from end of mortgage.

[Exclus]

Re: Need advice with Mortgage problem

Thanks Niddy - In the last letter of 8th July 2014 they state that £1.24 is still owing, so presumably it's still live and they should have been able to forward on the documents I have asked for ie copy of the mortgage contract etc. In any event the mortgage term ended in 2012 so that means that they still should have kept these records.
Not sure if this has any bearing with respect to the mortgage current account reserve in any way.

[Exclus]

Re: Need advice with Mortgage problem

Going off at a tangent a little, I just want to thank everyone who has taken the time to look at this thread, and offer help and guidance. It's a real breathe of fresh air that others offer help to those who need it without thoughts of any recompense. Where would we all be without this fantastic forum.

[Never-In-Doubt]

Re: Need advice with Mortgage problem

I'd complain to the ICO and argue the fact that the bank are refusing to send documents on a live product citing they only need to supply the last 6 years which is preposterous because the information I'm after relates to the sale of the product and associated communication at outset and throughout.

Thats the way you'd be arguing with the ICO

[PlanB]

Re: Need advice with Mortgage problem

In the last letter of 8th July 2014 they state that £1.24 is still owing, so presumably it's still live and they should have been able to forward on the documents I have asked for ie copy of the mortgage contract etc. In any event the mortgage term ended in 2012 so that means that they still should have kept these records.
Not sure if this has any bearing with respect to the mortgage current account reserve in any way.

You're laying an excellent paper trail. Let's get some more confessions out of them first before you make your complaint to the ICO. It's possible that you don't want to put pressure on them to find the paperwork just like in a CCA request situation.

The bottom line is they've admitted that they haven't got any of the documents they need to rely on if they want to take you to court for the Reserve account. Thank God for that. Let's hope it stays that way. As it stands how can they prove you entered into a contract with them which says an unsecured 'draw down' account facility must be paid off when another product (i.e. your mortgage) is paid off?

They've sent you Ts & Cs from 2012 which are not the same thing as Ts & Cs from when you entered into the contract in 2002. Mortgage Ts & Cs cannot be varied (except by a court) so those Ts & Cs are probably meaningless since they weren't in existence when you signed the original contract. This needs to be double-checked.

Let's think of more question to ask them to buy you time until you get your house under offer. I'd be gobsmacked if they issued possession proceedings for £1.24 arrears. I'll lend you the money if that happens!

You told me your home has beach access so the summer is an ideal time for marketing.

[Exclus]

Re: Need advice with Mortgage problem

I think you are correct, Plan B, in getting them to admit other things prior to making a formal complaint to the ICO. However, make no mistake, I will take this action if they put me under any further pressure. Buying more time seems to be sensible, but not sure what else I can ask them to provide. Any ideas?

[PlanB]

Re: Need advice with Mortgage problem

I will take this action if they put me under any further pressure. Buying more time seems to be sensible, but not sure what else I can ask them to provide. Any ideas?

It would be good if we could come up with something which gives you reason to make a complaint to the FOS because that will take months and months to investigate. The ICO may decided to punish Barclays but how does that help you? Those documents may exist in their archives and they may yet be able to produce them. At the moment they probably think they haven't got a leg to stand on without them so let's not disillusion them, although this won't necessarily stop them from trying so we need to be on our guard if they should pounce. But I think we should see that coming with a formal LBA etc.

Being stuck in the queue for a FOS Ombudsman's Decision (because you will undoubtedly reject the Adjudicator's decision ) for up to a year will buy you the time you're after. And who knows the FOS may rule that you don't have to pay off that Reserve account as quickly as Barclays would like. The FOS can use *reasonableness* in their Decisions even if the law says different.

I think you need to work on getting all their misdemeanours lined up with full confessions in writing, and then make a formal complaint. Obviously if they put you under pressure then you will need to change tack.

I'll read back through your thread and email. I'm away now until Thursday.

[Never-In-Doubt]

Re: Need advice with Mortgage problem

You wouldn't have a FOS case based on them not retaining data as that's an ICO remit. Hence I suggested the route to take above, ie the ICO first. If they find in your favour go back to the business and request it again THEN and only then can you complain to the FOS.

[PlanB]

Re: Need advice with Mortgage problem

You wouldn't have a FOS case based on them not retaining data as that's an ICO remit. Hence I suggested the route to take above, ie the ICO first. If they find in your favour go back to the business and request it again THEN and only then can you complain to the FOS.

I wasn't suggesting a complaint to the FOS about Barclays not retaining data. I was suggesting a complaint about the way that they have handled Exclus' account where they've been threatening repossession when they had already agreed in principle and in writing that he could extend his loan for a longer period of time to pay back the non-mortgage element, and then they changed their minds. It would be a different issue to the FOS.

There's nothing to stop Exclus making a separate complaint to the ICO about non retention of paperwork and then referring that to the FOS afterwards.

Hit them with two FOS complaints, why not. It'll string things out for even longer if they amalgamate them both

[Exclus]

Re: Need advice with Mortgage problem

I've sent off the form and attached some letters to the ICO. I've also informed the Woolwich of this, and pointed out to them that it was them who advised me to take financial advise, and now that I have taken this advice on here, that they cannot supply me with the documents that are needed for anyone to give financial advice. Bit like a merry-go-round!
I've also asked for them to cease any further action until we hear back from the ICO. Not sure that they will take any notice, but as PlanB says it lays a good paper trail.
I suppose it really depends on whether it's six years they have to keep records for, or six years after the mortgage/relationship ends as the accounts are still live. In any event it may buy a bit of time.

[PlanB]

Re: Need advice with Mortgage problem

I've sent off the form and attached some letters to the ICO. I've also informed the Woolwich of this.

What form is that ?

[Exclus]

Re: Need advice with Mortgage problem

It's a form I downloaded from the ICO - 'Report a concern about accessing your personal information' - plus I added correspondence showing exactly what I was complaining about.

[PlanB]

Re: Need advice with Mortgage problem

It's a form I downloaded from the ICO - 'Report a concern about accessing your personal information' - plus I added correspondence showing exactly what I was complaining about.

This should put you in a Win Win situation.

If they have destroyed the original documents they'll be in some difficulty enforcing that loan. It's not impossible but it makes their job harder.

If they find the documents in their archives then at least you'll be able to see what you signed up to and whether there is anything in it which could be seen as unfair etc.

I doubt they'll take action while this is going on as long as you keep up with your payments to cover the loan interest which means the bank is not being prejudiced by the delay since the debt isn't getting any bigger.

Your mission is to delay action while you sell your home or win the lottery. Let us know if you hear anything from the Collections Team. The left hand doesn't always know what the right hand is doing with big businesses like Barclays.