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FOS going straight to determination - my parents house will likely be sold

Posted by on in Consumers Fight Back
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Hello fellow members,

I've raised a dispute with FOS on behalf of my parents against multiple loans advanced by ANZ. ANZ's business banking manager preyed on my cashflow/asset high parents and extended multiple business lines of credit. The loan applications were done via a business which never got off the ground. ANZ kept increasing the credit facility when the company defaulted on its loans and set up new loans to repay themselves - thereby increasing the debt amount. A time came where I became aware of what was happening and put a stop to the predatory lending and asked for the last loan in 2008 to be reviewed and all interest and charges be reimbursed. ANZ were generally agreeable and assured me that they would look into the matter promptly. In 2012 after many attempts at resolving the dispute I finally lodged a complaint with FOS.

We have just had correspondence from FOS advising that they are going straight to determination, with no right of appeal. They have advised that whether maladminstration was at play or not, there will be a residual amount that will need to be paid as some monies were drawn down from the account. This means that either way my parents will need to sell their home and will never be able to afford a new one.

I sent a few questions to FOS via email to keep things in writing however today received a phone call where I was very clearly told that 'FOS is not obligated to answer any questions" "We are not an inquisitory service and do not allow fishing expeditions" "you cannot ask us questions, FOS asks the questions to obtain the information it requires to make a determination, everything else does not matter"

I think they forget that we are just ordinary people, not everyone is out to get information, etc. we just want a fair go and a fair understanding of what the process is. ANZ is providing a lot of false and misleading information to FOS to cover up their own fraudulent activities...and unfortunately it seems FOS is leaning the Banks way. We have been fighting for over 4 years now and are loosing our conviction. 

I am confident that Maladministration will be concluded as there is very obvious signs that my parents could not service loans (they were defaulting on their previous loans and were in a situation where debt kept rising). Is anyone aware if we can make an argument to FOS to reduce the amount repayable - ie. make a case that my parents should not have to pay back monies that should not have been lent to them in the first place?

Does anyone have any tips on how to respond to FOS's letter which is clearly leaning towards the banks? How do we get them to see things from our perspective?

Good luck with your own pursuits as well.

 ED: BFCSA solicitor can write on your behalf if you are a member.


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  • doyla66
    doyla66 Tuesday, 08 April 2014

    It appear that FOS are getting to big for their boots. Where is it written that we cannot ask questions and expect an explanation. Like you indicated we are only ordinary people wanting clarification. We are not lawyers or investigators we only want a fair and equitable determination built on laws and banking protocol and Codes. We, like you believe Nab were guilty of maladministration of a business loan. Nab covered up and lost vital documents throughout our FOS case of 12 months. I believe that FOS hand over all our complaints and documents to the Lenders which in turn gives the Lenders plenty of time to shuffle,lose and provide answers which substantiate their own cause. It appears from all the disgruntled consumers that FOS are not doing their job aid by ASIC.

  • doyla66
    doyla66 Wednesday, 09 April 2014

    Hi Nanna,
    Thank you for your response. Yes, ANZ have already told us that they dont have some documents because they are not required to keep records as far back - funnily enough they kept the unlimited guarantee that my parents signed. It's ridiculous that FOS has a 6 year limit as often you need access to records before this.
    Wish you all the best with your process Nanna!

  • doyla66
    doyla66 Tuesday, 08 April 2014

    not happy

    Fos are bent, they are supposed to be enforcing the Banking Codes which form part of the loan contract but ignore them, if you consult PILCH in your state or another free legal advisory service they will advise you whether you have a case and will help you prepare the docs for court ---- if you can get to the directions stage of Federal Court proceedings you can ask the court to appoint a PRO-BONO BARRISTER FROM THE PANEL

  • doyla66
    doyla66 Wednesday, 09 April 2014

    Hi Tom,
    We have looked up PILCH today and will see if they can assist. Thank you very much for your response.
    I got advised by FOS that they would provide the paragraphs of ANZs lending policy that they have taken into consideration in their determination. I wonder if I can FOI some information.

  • doyla66
    doyla66 Wednesday, 09 April 2014

    I think you can. You could ask FOS directly for your file. Does anyone know the link for RTI - right to information?

  • doyla66
    doyla66 Tuesday, 08 April 2014

    One basic fact is wasted on FOS because they're working for the Banking Industry:
    No one should be paying money to a Lender when it's clear that the loan is fraudulent.
    Just because FOS only consider Civil Matters (which often aren't very civil at all with stressed staff on the fast track) they seem to be missing the point.
    Fraud is fraud .... even if they don't do the Fraud Cases - we're being trapped into deals where we can end up agreeing to participate in crime just to keep our homes.
    With their "Take It or Leave It" attitude FOS are behaving like gangsters with their "gun to the head" approach.
    It's a totally unfair proposition to be put in a rock or a hard place situation at the end of all the work we put into our cases in good faith that FOS will be fair and reasonable.
    Something's gotta change - fast - to save the credibility of FOS.

  • doyla66
    doyla66 Wednesday, 09 April 2014

    Hi Transformation,

    Yes, Fraud is fraud - rationality would suggest that if the initiation of the loan was due to deliberate acts of fraud then anything that happens after the fact is null and void. But unfortunately, it doesnt seem to act that way. FOS needs to be empathetic to complainants, we aren't all evil and trying to get out of commitments - there is CLEAR evidence of predatory behaivour!
    thank you for your supporting comments.

  • doyla66
    doyla66 Wednesday, 09 April 2014

    Check the contract law applicable to your state. You're right about the general principal, that if a contract is created or based on fraud, error, misleading that can nullify the contract. Just find the legal references for your case and your state or better still ask Denise and DLS for help. Get statements from witnesses on the predatory behaviour, if possible, and sworn statements or affadavits can add weight to your argument. (We're not lawyers - get a lawyer's take on this if you can.) Something I've noticed - people are more likely to believe me and take me seriously if someone else speaks up for me, especially someone with clear credibility. If you can get a discount on a loan and/or a finding in your favour that's a start at FOS and for court.
    Hope this helps.

  • doyla66
    doyla66 Tuesday, 08 April 2014

    Bank Brats - FOS confuses lack of bias with coldness and disinterest - freezing us out?

    I've learned recently that if we don't put a gun to their heads, they put the gun to ours.
    That the kind of country our government wants to foster by their style of leadership and their attitude to crime.
    No more Law and Order at the Federal level - that's out of fashion in Canberra.
    These are dark days indeed and we can expect it to get darker before the light.
    And there's no sympathy for weaklings and losers - these kids at Banks and the younger pollies had it all given to them so they've never learned compassion, empathy and all the finer virtues we cherish.
    Heaven help them when their world falls apart? No, back to Mummy and Daddy for more spoiling, of course.

  • doyla66
    doyla66 Wednesday, 09 April 2014

    totally agree! Consumers need to be armed with information so we can point out to FOS staff where and how these loans are illegal and why maladministration needs to be address. Unfortunately, FOS staff are not willing to share their information or how they have come to calculate figures, posed certain questions, etc.

  • doyla66
    doyla66 Tuesday, 08 April 2014

    Reply to Tom Dixon

    Tom, before BFCSA we went through PILCH and were taken on by a pro bono law firm. We supplied all the fraudulent LAF information and as well being from NSW we thought we were covered by contract law. After twelve months and after liaising with our lender New Loan now Firstfolio the law firm stated the courts will most probably favour the banks and we will wear in excess $200,000 court and bank costs. Also because we were pleading hardship they said because we hadn't lost our home and hadn't missed a loan repayment we cannot be deemed to be in distress even though the experts deem that if you spend one third or more of your income servicing the loan you're in trouble, we were spending 3/4 of our combined income and its only because of interest rate reductions that we are presently surviving but one day that will change once they start to increase again. FYI, the irony is after twelve months this prominent law firm realised our lender was a major client so had to drop us but having said that its the luck of the draw and they view your case at PILCH before approaching you and you may get a fighter to represent you although I suspect its the legal professions way of being seen to be charitable to people who can't afford representation and to get cookie points from their peers for doing so.

  • doyla66
    doyla66 Wednesday, 09 April 2014


    Thanks for the briefing, Bendigo and Adelaide Bank have taken all I have so even if lose I am no worse off ---to do nothing is bankruptcy, to lose is the same so I have to roll the dice if Field and his fellow clowns had done the job the situation would be different

  • doyla66
    doyla66 Wednesday, 09 April 2014

    not happy

    Tell FOS that under FOI you copies of your file , they have to send it to you

  • doyla66
    doyla66 Wednesday, 09 April 2014

    Everything is on the banks computers,if the loans are still on foot,I would assume they would have to keep all documents pertaining to it.Some records are destroyed after 10 years.They just need your loan number and press a button,how hard is that.
    The Security Packet should still be in tact and they are held by the Trustees via BNY trust ,(sorry they changed their name BNY Mellon,)especially if the loan is securitised.It contains your original Loan Agreement,Mortgage Contract,Lenders Insurance Policy.

  • doyla66
    doyla66 Wednesday, 09 April 2014

    Does this apply to all mortgages with all lenders, Honesty? Can we contact them to get copies of this?

  • doyla66
    doyla66 Wednesday, 09 April 2014

    Securitised Loans

    Those with securitized loans should check the terms and conditions in their loan contracts, its complex but if the mortgage manager is signed for the Code the terms and conditions must contain a statement indicating that the contract is subject to the banking code and this applies to small business ( eg ABN"S) as well as personal, if this statement is not there the Banking Codes have been breached

  • doyla66
    doyla66 Wednesday, 09 April 2014

    If it's the security packet you need, it would be in a secure place for the life of the loan as it contains your title deeds as well.
    Does this apply to all mortgages with all lenders? I would think so as everything is input into a computer,printed, signed and sent to loans administrators.
    Hi Tom
    If the mortgage manager,is a non bank lender,but has signed a mortgage origination management deed with a major bank would this be covered by the Banking Code?
    What Banking Codes have been breached if the above is correct?

  • doyla66
    doyla66 Thursday, 10 April 2014

    FOS tells me: my broker was the agent of the bank
    the bank engaged in maladministration
    BUT FOS NEVER sets aside loan capital when they find maladministration. All they are awarding is the interest for the loan, in my case, small buffer loan.
    They only set aside principal when they find unconscionable conduct. The bank not checking and lending on a completely fraudulent LAF is not unconscionable, just maladministration!!!!!!!!!!!!!!!!!!!!!!!!!!!
    Huge loan is payable less a little bit of interest.

    What then is unconscionable conduct? Well the bank not checking is not, according to John Patterson at FOS.

  • doyla66
    doyla66 Thursday, 10 April 2014


    Will find out for you, well for a start under 10.2 they have to have a clause in the contract that it is subject to the banking code

  • doyla66
    doyla66 Thursday, 10 April 2014


    Under sect 25.1 of the banker code they are supposed to be a prudent banker---i.e. not to lend if the borrower cant afford it--- that means that have to check---Denise won a memorable case using 25.1 .FOS don't mention the banking codes you would think that they had an agreement with the FSP not to make reference to them

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