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BFCSA: FOS Policy Meeting, "'At FOS, we don't break the rules! We change them!'

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Debt collection guideline (96) for “collectors and creditors”

Sec.23 The role of independent external dispute resolution schemes


I visited ASIC Qld Offices last Wed (4 Dec) and spoke to Misconduct & Branch(analysts) Reporting who strongly inferred the "other teams" had right of way when it came time to seek an "enforceable undertaking" against ING DIRECT who have willfully contravened its own Banking Codes (clause 29) by pursuing Debt Collection Processes at the same time my FOS Dispute No.272192 is before the Financial Ombudsman Service(FOS), a sham organisation who purport to act in fairness and impartially when nothing could be further from the truth.

The two young "analysts" listened intently, took down notes (but not for show) and asked many relevant questions in a genuine effort to get at the heart of the matter over a 1.5hr period and apologized for having to conclude the conference, encouraged me to lodge the Complaint against the ING Bank and FOS (in brief) so as to get into the system, which in turn, would enable "P" to then appropriately follow up with a request for more details in that sequence.

Amongst many things, "P" confirmed, that FOS have failed their obligation as an EDR scheme in so far as not "shutting down" ING DIRECT's Debt Recovery Proceedings while the (FOS) scheme "considers the dispute" and in particular my allegations of wilful breach of FOS Rule (13.1) constituting serious misconduct (under FOS Rule 11.3) on the part of ING DIRECT warranting FOS to report ING DIRECT to ASIC to be disciplined. 

The material breach occurred in 2011 (covered up by FOS Legal Counsel) notwithstanding FOS Case Manager's (Nicole White) best endeavours to pursue on my behalf, confirmed as much in her letter dated 8 May, 2013, which pledged; "I confirm that I will investigate in dispute 272192, whether the FSP acted in error (during former FOS Dispute No. 248473) in issuing legal proceedings on 5 July, 2011...."

In the last week, FOS Legal Counsel "Mr FOS/XYZ" has wronged me, by failing to confirm a letter, which I sent to FOS on 10 Dec, 2012 during my current matter (272192) filed 6 Feb, 2012--- was ultimately "on-forwarded" to ING DIRECT [its legal representatives) consistent with FOS guidelines re its open "information exchange" policy between the FSP and the Complainant (visa versa) during the course of the FOS dispute.

FOS must confirm (or otherwise) whether or not the "info-exchange" took place, at which time in the affirmative, his Honour Judge Rackermann, made it crystal clear to my Legal Counsel, that in the event the Plaintiff was in receipt of such letter sent from me to FOS (10.12.12) ING DIRECT would be found to have misled the Court during an "ex-parte" Hearing on 27 Aug, 2013 -- the most gravest of abuse of court processes -- the book thrown at them effectively; and ...consequently the ill gotten Default Judgment (made on 18 Nov,2013) would be declared "irregular" and thrown out of Court.

BUT .. but FOS "turn a blind eye" to my request.. ensuring ongoing consumer in-equality and denial of natural justice.. 

It now appears imminent that I'll have to lodge an appeal (et al) and subpoena FOS records (et al) since they'll delay, as they do, any Right-of-Information application against the FOS and would be respond by dispensing consistent "frustration" and obfuscation all round. 

This is an EDR scheme in disarray; an absolute "disgrace" to consumers; and.... must be dismantled immediately... and replaced with a newly established "independently" run true External Resolution Scheme--- brought into the fray to sort out these banking mobsters running amok ---FOS people are getting truly angry-- it this, if allowed to fester----may come back to bite you yet.

Moreover, FOS have been informed of ING DIRECT's obligations under it (adopted) Banking Codes (clause 29) which states under its Banking Codes - Clause 29 "Debt collection" 

”We [ING DIRECT] and our collection agents... ...will comply with the Australian Competition and Consumer Commission’s guideline "Debt Collection and the Trade Practices Act" dated June 1999 when collecting amounts due to us, and we will ensure that our representatives [such as; instructing solicitors, Gadens Lawyers] do likewise.”

Consequently, the conduct committed brazenly by the FOS Respondent ING DIRECT (its ‘dummy’ Plaintiff) is proscribed by the ACCC and ASIC regulatory guidelines known as “RG-96” which affirms (inter alia) under the heading; ASIC: REGULATORY GUIDE 96: - Debt collection guideline: for collectors and creditors [October 2005] Section 23[c] which clearly states--

"We urge creditors and collectors to ensure their systems and practices allow EDR in the debt collection area to work effectively. [and] In particular; ["RG96" as re-affirmed by "P" last Wed 4 Dec/13 of ASIC]:-

" ...collection activity relating to a dispute that has been referred to an EDR scheme must be suspended while the scheme considers the dispute—again, this is a requirement imposed on scheme members (including their agents)."

Referring to:- The Code Compliance Monitoring Committee (CCMC) which states---

" The CCMC’s role is to monitor Code subscribing Banks’ compliance under the Code of Banking Practice, investigate allegations that a Bank has breached its obligations under this Code and engage with stakeholders to achieve continuous improvement in banking practice and standards." 

How is monitoring you FOS? ASIC? ("its all a charade")... 
....Wake up FOS ... you are starting to resemble the very ugly face of a massive financial industry "cover-up"... myself and another member, shall be visiting upon ASIC Brisbane Head office again this week, so then there were two(2), and so the following week there maybe 4, then the next 8, and so forth 16, 32, 64, 128, 256, 512, 1024 ............

Read the writing on the wall --- we're not backing down -- we will push back and get into your faces like you have never experienced in your sorry cushy 'little' careers... 

ING DIRECT a division of ING Bank (Aust)Ltd is bound by its 'Code of Banking Practice'. 

Following its publication in August 2003, the 'Code of Banking Practice' was adopted by a number of banks. In May 2004 the Code was modified by the Australian Bankers' Association, with the modifications relating primarily to the guarantee provisions of the Code. Many banks have also chosen to adopt the modified 2004 version of the Code. The ING Bank is one of these.

A bank is bound by the provisions of the Code from the date on which that bank publicly announces that it has adopted the Code. The ING Bank (Australia) Limited adopted the Code on 7th October 2003 and then adopted the modified Code on 15 June 2004.

The Code is a voluntary Code of Conduct that sets standards of good banking practice for banks to follow when dealing with individual and small business customers.“Voluntary” means that a bank can choose whether it wishes to adopt the Code. Once a bank adopts the Code, however, it is contractually bound by its obligations under the Code.

Under the Code, banks give a general commitment to act fairly and reasonably towards customers and guarantors in a consistent and ethical manner.

The Code also gives customers of banks that adopt the Code important legal rights, and confirms their existing rights in a number of areas.

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  • doyla66
    doyla66 Tuesday, 10 December 2013

    Good work, Andy. :)
    Monitoring similar situation in the making - parallel universe lol. Thankyou for the info. Will advise if FOS fail to do what we know they're supposed to do under EDR conventions and rules. The list of per case breaches will get bigger as well if this is allowed to persist. Thank goodness we have BFCSA to let us know this conduct is not right, normal, permitted, acceptable and some of it is downright dangerous and patently illegal, IMHO. Irritated by their games of cut throat: borrower against FOS + split FSPs - like Chinese ghost film/smoke & mirrors/shell game. "Qualified" opinion involves methodologies & consequences, based on evidence, experience. (Not "conspiracy theory".) Doubt that would impress FOS either, but it is what it is, and it has done and continues to do harm to FSPs clients/former clients. If ASIC/AFP/NCC/ACC/ACCC ever want to get serious with crime and misconduct prevention, we have lots to "show and tell".

  • doyla66
    doyla66 Tuesday, 10 December 2013

    More dirty deeds ...

    Denise has created DLS to ensure all members who use user payd sytems, have responsible, healthy and informed arguments to professionally answer EDR correspondence and to buffer EDR's misconceptions. Damages could far outweigh the piddly amount of money paid by FOS. As I understand it EDR/FOS/COSL is based on honour system, to tell the truth always as we have, to substantiate with evidence where possible. Despite that FOS staff may be taking their own initiatives beyond this to disprove facts and truth and do very serious harm to borrowers and their reputations, or make it so unpleasant that they have to move from their homes and communities. In long cases they may test to find out whether early health issues still apply towards end of case, especially when the stakes are high. Banks should be on notice that this will result in damages claims skyrocketing and even some of these going public to set benchmarks at Law. Suggest they consider the consequences for their reputations and those for their operatives (Bank staffers) seconded to FOSL or acting illegally in this capacity. Do they have the insurance cover for unauthorised medical testing in the context of what should be EDR? A question of "passing off", deceptive and misleading conduct, further fraud and intentional harm still remains. Good families and loyal friends are gathering around Bank victims and ensuring no further harm comes to their loved ones. We are unsure how far these rogues will go in killing off the FOS/other EDR cases. We're waiting for the Banks to say they were doing this to help us somehow and acting in our best interests. :(

  • doyla66
    doyla66 Tuesday, 10 December 2013

    FOS staff at risk too - also COSL, ASIC, Financial Counsellors, support workers, Senators, staffers

    Regularly reading content from borrowers and FSP can alter brain structure and normal functioning and can cause PTSD like symptoms, stress, depression and physical symptoms.
    Staff must be monitored for this, where possible, recycled and/or referred for counselling, time out, take a walk, etc.
    Otherwise they are at risk of inflicting harm on clients including borrower/investor complainants. This is not uncommon.
    I wonder what sort of shape the good Senators will be in after reading all the submissions and all our FOS/COSL/ASIC case files?

  • doyla66
    doyla66 Tuesday, 10 December 2013

    When you received the parallel debt collection/default did you lodge that with FOS as well, linked to original file number?
    Have you considered a Ministerial for this situation or is it past that due to litigation?

  • doyla66
    doyla66 Tuesday, 10 December 2013

    Thanks Lisa-- but what do you mean by "ministerial" -- pray to the Lord perhaps?

  • doyla66
    doyla66 Tuesday, 10 December 2013

    A ministerial is when you write to the relevant minister and request their assistance in resolving a problem or ask them to investigate or look into a situation that you have been unable to resolve any other way. The Minister's staff then are supposed to contact the relevant department and discover what's happened and what can be done better/faster/at all. Not always successful and according to one story it took two ministerials to get a business name changed by ASIC!
    Depending on the Minister involved, a ministerial can even result in your request holding up all other (relatively) non-essential work and your problem getting a high priority transit answer.

  • doyla66
    doyla66 Wednesday, 11 December 2013

    Yes Lisa - I like that - will try (as soon as the other 'bucket list' is exhausted')

    Oh, gotcha, like in "Yes Minister" -- is preparing to go before the Full Bench (three judges) of the Brisbane Supreme Court of Appeal deemed close enough to a "Ministerial" at this juncture - I have until 6 January, 2014 to file - inexpensive because of Disability Support and real points of Law exist which they should enjoy "reviewing".

  • doyla66
    doyla66 Tuesday, 10 December 2013

    "What's more, there is no simple process of handling complaints against FOS decisions or the FOS board, beyond going to ASIC."

    Good to know :)

    Is the case then considered under FOS or ASIC conditions?

    Read more:

  • doyla66
    doyla66 Wednesday, 11 December 2013

    Thank you Mr FOS

    Ombudsman’s decision

    The Ombudsman agreed with the case manager’s assessment.

    In his decision, the Ombudsman noted the following:

    APRA has a supervisory role in the Australian financial market.

    Complying with APRA’s requirements does not provide a protection to an FSP in relation to whether or not it has engaged in maladministration in lending.

    A lender’s obligation to lend responsibly is encapsulated in the common law;
    to the extent the loan is regulated, section 70(2)(l) of the Uniform Consumer Credit Code (“UCCC”) (and now section 76(2)(l) of the National Credit Code);
    for subscribing FSPs, clause 25.1 of the Code of Banking Practice (“CBP”); and
    section 12DA of the ASIC Act;

    The UCCC does not, of itself, prevent low doc lending.

    However, the common law and the CBP require an FSP to exercise the care and skill of a diligent and prudent lender, and arguably a diligent and prudent lender would not rely solely on information provided by the customer to a loan;

    The fact that an FSP has entered into a low doc loan is not sufficient to establish maladministration. However, it is a known risk of low doc lending, and the risk is assumed by the FSP;

    There is a legitimate place for low doc loans to cater for those self-employed borrowers who are unable to provide more traditional evidence of their income.

    However, a customer’s self-declaration of financial details will not protect the FSP from having the loan considered maladministration or unjust if the circumstances were such that the FSP ought to have made enquiries but chose not to do so;

    Relying on the comments of the trial judge in Permanent Mortgages Pty Ltd v Cook [2006] NSWSC 1104, a customer’s false declaration, whether knowingly or inadvertently, is a relative factor to be taken into account,

    "...but is not decisive",
    .... such that the FSP should avoid liability for maladministration in lending;

    In this case, the FSP was privy to financial information "inconsistent" with the customers earning $440,000, namely that they were also receiving parenting allowance.

    If the FSP had adopted good industry practice and sought clarification, any reasonable inquiry would have revealed that Mr and Mrs Z did not have the capacity to service the $200,000 loan.

    The Ombudsman agreed with the case manager’s conclusion that there had been maladministration in lending, and that apportionment of liability as suggested by the case manager was appropriate.

  • doyla66
    doyla66 Friday, 13 December 2013

    If I've read that correctly, Andy, you won. It's hard to tell. Congrats if you did. What a long road to justice EDR is!

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