Repayment Mortgage Decision Reference 2022-0429

Case OutcomeUpheld
Reference2022-0429
Date21 December 2022
Year2022
Subject MatterRepayment Mortgage
Finantial SectorBanking
Conducts Complained OfLevel of contact or communications re. Arrears,Premature ceasing of arrears negotiations
Decision Ref:
2022-0429
Sector:
Banking
Product / Service:
Repayment Mortgage
Conduct(s) complained of:
Level of contact or communications re. Arrears
Premature ceasing of arrears negotiations
Outcome:
Upheld
LEGALLY BINDING DECISION OF THE FINANCIAL SERVICES AND PENSIONS OMBUDSMAN
This complaint relates to two mortgage loan accounts held by the Complainant
The Complainant’s Case
The Complainant drew down the original mortgage loan in November 2005, and
subsequently in September 2006, she availed of a top up loan with the original loan owner.
The Complainant states that the property securing both mortgage loans was purchased as
her primary residence (the “secured property”).
The Complainant sets out that “small arrears occurred gradually since 2010/2011 when the
recession happened, and I could not get full rent to cover the mortgage and I also was made
redundant from my job in September 2010”. She states that the then loan owner (the original
provider) agreed to reduced repayment amounts at that time, which the Complainant says
were met, at all times. The Complainant further states that she gradually increased her
repayment amount each time a new temporary repayment arrangement was agreed with
the original owner.
Ownership of the Complainant's mortgage loan accounts was transferred to the Provider
by Deed of Transfer on 30 November 2018.
The Complainant contends that she contacted the Provider's Credit Servicing Agent (“CSA”)
in or around February 2019 regarding arrears on the mortgage loan accounts. The
Complainant states that she advised the CSA that she could not pay the outstanding arrears
in one go, but instead offered to increase her monthly repayments.
- 2 -
/Cont’d…
The Complainant states that CSA advised that they were only concerned re the arrears being
paid in full, regardless of continuous increased repayment or that no payment was ever
missed”. She says that she set-up two standing orders to facilitate mortgage payments, upon
receipt of the CSA’s ‘Welcome Letters’ dated 18 February 2019, one for €500 (five hundred
euro) per month for the original loan and the other for €50 (fifty euro) per month for the
top up loan. The Complainant received subsequent correspondence from the Provider’s
CSA, dated 25 February 2019, which stated that the failure to contact it, and to clear any
arrears in full, could result in the appointment of a receiver over the secured property.
The Complainant asserts that she issued a letter to the CSA in May 2019, putting forward a
full and final settlement offer, with regard to the arrears, but she received no
acknowledgement of this offer, even with subsequent follow up calls. The Complainant
details that she was advised that the person dealing with her file had left, and her offer was
left on that person's desk, stating “it was not dealt with”.
The Complainant outlines that she was “continuously and persistently” told by their CSA
that, regardless of the intention to increase the monthly repayment, the arrears would need
to be repaid in full, in one lump sum payment.
The Complainant submits that she sought legal advice in July 2019 and she appointed a
solicitor as a third-party representative in relation to her mortgage loan accounts. The
Complainant sets out that her solicitor wrote to the CSA on 15 July 2019 requesting that it
hold off appointing a receiver and instead issue a Standard Financial Statement (SFS) to the
Complainant for completion. The Complainant further sets out that her solicitor did not
receive a response, and no SFS was forthcoming.
The Complainant states that shortly after this, in September 2019, she was notified of the
appointment of a receiver on 28 August 2019. The Complainant outlines that her tenants
were notified of this and “instructed not to have any contact with me”.
The Complainant says that on 10 September 2019 she sent an email to CSA advising that
she was in a position to clear the €4000 (four thousand euro) arrears in full, and to return to
full monthly repayments. The Complainant further submits that when she followed up with
CSA on 13 September 2019, she was advised that in order for the receiver to be removed,
she would need to clear the outstanding mortgage loan accounts in full. The Complainant
states that, as a result of the appointment at the receiver and her inability to access her
property, arrears accrued on her mortgage loans and associated management fees/charges
also. She says that, owing to stress, “induced… as a result of the ongoing situation” she
suffered complications to her health and underwent two medical procedures in October
2019.
The Complainant says that she had been under the impression that her property was classed
as an investment property because she had been letting it out. However, she goes on to
state that she had since been advised that because the property is her only property in the
State “this means … I should have been protected by the Code of Conduct on Mortgage
Arrears (CCMA) and entered into a Mortgage Arrears Resolution Process”.

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