Zoot v Halifax Mortgages ***SETTLED IN FULL*** *

[zootscoot]

Royal Bank of Scotland also owns Halifax.

[zootscoot]

Hi Tracey,

 

Cor 18k that must be a record! Unfortunately this brings your claim into the multi track. There is a possibility that this could go to the High Court where only barristers can appear. Csts can escalate considerably and you will be liable if you lose. It may well be worth waiting and seeing how the current claims against Kensington are progressing before making a decision as to whether to proceed.

 

All the best

 

Zoot

[zootscoot]

Haha Blackrain, I 've just posted on your other thread we must have been typing simultaneously. Lol

 

Both Lickthewall and thunderpuss got the same reply from BM but they paid out without submitting a defence.

 

If you wanted to respond to the no breach argument check out my letter in this thread:

 

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/27030-harsh-letter-recieved-form.html

 

All the best

 

Zoot

[zootscoot]

Yes will need to go in both your names.

[zootscoot]

See post 14, page one of this thread.

[zootscoot]

Help yourself Luvvy,

 

Best of luck!

[zootscoot]

Hi Mike

 

 

just discoverd they owe me £244 for unpaid DDs though

-

 

You can claim these

I Have a question what about £750 arrangement fees? are these perfectly

legal?

 

 

Very expensive arrangement fee but yes unfortunately these are lawful as they do not relate to a breach of contract.

 

is it the same scenario RE- ERCs in Scotland would I have to make 2 claims against Kennsington,as it will be above £1,500 ?

 

 

 

Unfortunately you can not split ERCs.

 

Hope this helps

 

Zoot

[zootscoot]

Has anyone had any experience of getting a bank to wave an ERC before they have to pay it ?

Yes see here:

 

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/32616-saraounia-mortgage-express.html

[zootscoot]

Hi Moses,

 

I sent my prelim & LBA to the Leeds address. Although I've since found out the legal team is at the Trinity road.

 

Leave out the bits in purple and you can add something instead of the bits in red if you have the info. If not it would be worth requesting the info as it seems Halifax are now defending. If you include the paragraph on s.4 UCTA but simply refer to commercial risk rather than refer to reduced interest if you are not sure that this is the case.

 

 

http://www.consumeractiongroup.co.uk/forum/other-institutions-successes/19501-zoot-halifax-mortgages.html#post221703

 

Best of luck

 

Zoot

[zootscoot]

Hi Tam & Lizzy

 

Don't worry about hi jacking - my case ended about 4 pages ago!

 

I've read the comments on the MSE site and its really awful that they are treating you that way.

 

Stay here where you are amongst friends and the forum rules require bankers to ask permission before registering. There's no point trying to argue with them they are simply bias and protecting their own interest.

 

All the best

 

Zoot

[zootscoot]

Hi Alison,

 

Yes you can claim the 8% at court stage. Generally the contract rate under a mortgage would be less than 8% in any event although if your looking for compounded interest this may make a difference. Always best to put in statutory interest as an alternative just in case the contractual rate is refused.

 

I recently helped a colleague of mine to claim against C&G on a mortgage admin fee. They paid out surprisingly quickly even before the deemed service date!

 

Best of luck and don't forget to start a thread to let everbody know how you are getting on.

 

All the best

 

Zoot

[zootscoot]

Prelim letter is in post 14 page one of this thread.

 

What charges have they applied?

[zootscoot]

You can claim the ERC, failed dd fees, deeds fee, admin fee provided it was applied at the end of the mortgage rather than the beginning.

 

The debt counselling fee and legal fees are a little less clear cut as generally they will be able to provide invoices to prove these costs, although its worth querying them and if they can't prove them then claim them.

 

All the best

 

Zoot

[zootscoot]

Zoot are we allowed to claim back admin fees applied then, I thought these were untouchable because it related to the actual starting up of the mortgage and therefore work done and hence a reasonable fee..... I hope I'm wrong obviously so I can add this to my claim against Woolwich ........

 

This was the admin fee for closing the mortgage and can therefore be related to a breach of contract. Admin fees at the beginning of a mortgage are not recoverable.

 

I have juut realised I paid a fee of £2,281,23 described as 'Repayment fee' to The Mortgage Business of Chester in May 2004.

 

Is this time barred in away now

 

You have 6yrs from the date of payment to bring your claim. So no its not time barred

[zootscoot]

Hi Gina,

 

Do you have a thread on your claim?

 

I need to know what was in your particulars of claim and what was in their defence.

[zootscoot]

What did you put in the particulars of claim section on mcol?

[zootscoot]

Are you sure you've not received a defence as they would not send out the allocation questionnaire without a defence?

[zootscoot]

 

Claim no xxxxxx

 

 

In the Northampton County Court

 

 

XXXXX

 

 

 

 

 

 

Claimant

 

 

 

 

And

 

 

 

Halifax plc

 

 

 

 

 

 

Defendant

 

 

Substituted particulars of claim pursuant to court order dated xx/xx/xxx:

• 1. The claimant had a mortgage account with the defendant between the periods of xx/xx/xxx and xx/xx/xxxx. Account no. xxxx
     
  2. The defendant advanced £xx,xxxx.xx to the claimant and the claimant undertook to repay the advance by monthly instalments over the period of xx years.
     
  3. The claimant terminated the contract on xx/xx/xxxx.
     
  4. The defendant levied a charge for the early termination of the contract of £X,XXX.
     
  5. The claimant was in breach of contract by terminating the contract before the contractually agreed period which provided that the mortgage would terminate on xx/xx/xxxx.
     
  6. This breach related to an express term of the contract This term of the contract was clearly stated in the written mortgage offer signed by the claimant. The terms of which were incorporated by reference into the mortgage deed which was not only signed, but also witnessed. There is clearly no room for doubt that such a clause existed in the contract. Similarly, there is no question that the claimant in fact redeemed the mortgage on the xx/xx/xxxx as evidenced by the final redemption statement. This date is clearly well before the contractually agreed date of xx/xx/xxxx and thus represents a clear breach of the contract.
     
  7. To further the contention that a breach of contract did in fact occur, it is submitted by the claimant that during the period of the xx years, the claimant was clearly under a contractual obligation to pay monthly installments to the defendants and clearly has not made such payments since the redemption of the mortgage.
     
  8. The claimant understands the early repayment charge was levied pursuant to an express contractual term. The term provides that an early redemption charge was payable in the event of redemption and thus represents a charge that is payable in the event of a breach of contract. This term merely anticipates a breach and does not represent the exercising of a right under the contract.
     
  9. The claimant further submits that the fact that such a term exists does not prevent a court finding of breach of contract following the House of Lords decision in Bridge v. Campbell Discount Co Ltd [1962] AC 600.
     
  10. In the event that the court is minded to hold that the claimant was exercising a right under the contractual clause xx of the mortgage agreement as oppose to breaching the contract, the claimant contends that the clause XX is simply a pretence at conferring a right to exercise an option when in essence it is simply a term setting out the consequences of a breach of contract and as such in the absence of a genuine pre-estimate it amounts to a penalty.
      
  11. It is the claimant’s submission that term relating to the early repayment charge is merely a penalty clause disguised as an option to exercise a right. It is respectfully requested that the court should look to the substance of the clause rather than the form. In this regard the claimant would rely upon the judgments of Lord Denning and Lord Devlin in Bridge v Campbell Discount ltd [1962] AC 600
      
  12. Accordingly following para 5-11 above, the clause can thus be seen as ambiguous as there are two possible interpretations of clause. In the event of ambiguity in a written contractual term, the contra proferentem rule requires the court to resolve any ambiguity against the party who drafted the term. In this regard I would also like to rely on Regulation 7 of the Unfair Terms in Consumer Contracts Regulations 1999.
      
  13. The claimant submits that the early repayment charge is unlawful at common law. A contractual term which provides for a specified amount payable in the event of a breach of contract (whether by a fixed sum or calculated by way of a percentage) must represent a genuine pre-estimate of loss if it is to be regarded as a lawful liquidated damages clause. A clause which is excessive in relation to actual losses is a penalty and unlawful Dunlop Pneumatic Tyre Co. Ltd. v New Garage & Motor Co. Ltd. [1915] A.C. 79.
      
  14. The claimant has repeatedly asked the defendant to provide the claimant with details of how their charge was calculated to represent a genuine estimate of their loss. The defendant has failed to respond to this request and thus the claimant is of the opinion that no genuine pre-estimate indeed took place.
      
  15. The claimant contends that the clause on which the defendant relies upon to levy the ERC is unfair and represents a disproportionate penalty under the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). The account falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as we are consumers. The charge constitutes an unfair penalty under Schedule 2 of the said Regulations which provide an indicative and non-exhaustive list of terms which may be regarded as unfair. Paragraph 1(e) of schedule 2 specifically includes terms which have the object of requiring any consumer, who fails his obligation, to pay a disproportionately high sum in compensation. The claimant submits that this is the position regarding the Early redemption charge.
      
  16. In the event that the clause relates to the defendant recouperating costs incurred to indemnify a third party, the claimant contends that the extent to which the clause are unfair under s.4 Unfair Contract Terms Act 1977
      
  17. The claimant submits that the charge represents a disproportionate penalty. A fee calculated by terms of a percentage of the sum paid can not amount to a genuine pre-estimate of the defendant’s loss, but moreover represents a fee levied with a view calculated to profit from the claimant’s breach, to act as a clog on the equitable right to redeem or to punish the claimant for its breach of contract.
      
  18. In the premise of all the above, the claimant respectfully submits that the claimant does indeed have a legitimate cause of action which should be allowed to proceed to trial.
      
  19. Accordingly the claimant claims :

a). The return of the £xxxxx representing the ERC

 

b) Court costs of £xxxx

 

c) Interest pursuant to section 69 County Courts Act as set out on the attached list of charges or at such rate and for such periods as the court deems just.

 

STATEMENT OF TRUTH

 

 

I believe the facts stated within this defence to be true and comprising of X pages.

 

 

Dated: xx/xx/2006

___

[zootscoot]

That is why it says work in progress at the top!

[zootscoot]

Finished!

 

Sorry for the delay.

 

I'm assuming this was only an erc and not late payment fees?

 

I would proof read it and run it through a spell check before sending.

 

You need to send a copy to the court and one to the Halifax

 

Best of luck

 

Zoot

[zootscoot]

Hi Gina,

 

That would be the clause in your terms and conditions which states that the ERC is payable.

[zootscoot]

Hi Juli,

 

Your particulars look fine. Best to attach a copy of the statement. Send one to the court and one to the defendant also.

 

All the best

 

Zoot

[zootscoot]

Hi Mr Prom!

 

Final repayment charge looks like the admin fee. The 'interest due' may be the regular interest due under the mortgage. They sometimes lump all the monthly interest together and then debit all payments against this. If in doubt ask your lender.

 

Hope this helps

 

Zoot

[zootscoot]

Sorry I wasn't very clear earlier. Sometimes mortgage lenders will add all the interest due for a year and enter it as a lump sum onto the mortgage. Your monthly payments then go to reduce that figure. For example with my mortgage they added 2,550 in Jan 2004 and 4,500 in Jan 2005 as I paid the monthly instalment some of this payment would reduce the interest and some the capital. If you redeem before the year is out the amount of interest should be reduced to reflect this.

 

Hope this is a little clearer

 

Zoot

[zootscoot]

Hi Fullyskinted,

 

There is a difference between losing money and not making as much profit as they would like! They offer reduced rates to remain competetive and attract your custom in the same way many businesses offer discounts. The difference with mortgage companies is that they like to have their cake and eat it.

 

They want to attract your custom without bearing any of the risk in offering discounts. Most businesses will accept the risk of not making a profit or even making a loss on a few discounted products in the hope that it will increase future sales. Its seen as a worthy investment any losses are off set with the overall increase in profit. Not many businesses will transfer this risk back to the non loyal customer. You do not go in to Tescos and see buy one get one free offers subject to terms that you will have to pay a penalty if you never buy the product in the future. No arguments that they are not making as much profit from you as they had hoped.

 

So yes you should be able to claim your ERC!

 

All the best

 

Zoot