Mickey V Gmac (bit of advice needed please)

[mickey_0]

S.A.R - (Subject Access Request) sent and signed for on 8th August. Letter received asking me to clarify the extent of my request so I wrote back advising it was all financial transactions I was interested in. Reply received today with unpaid DD charges and arrears fee totalling £140 and also REDEMPTION INTEREST £2,702.54. This is the ERC but I'm just checking if I can still try and claim it back if they've renamed it? It clearly shows as ERC on the mortgage statement so I'm thinking yes?? Also could anyone please advise me, should I claim for the charges and ERC seperately or claim the full amount for both all in one fell swoop!?!

[gizmo111]

S.A.R - (Subject Access Request) sent and signed for on 8th August. Letter received asking me to clarify the extent of my request so I wrote back advising it was all financial transactions I was interested in. Reply received today with unpaid DD charges and arrears fee totalling £140 and also REDEMPTION INTEREST £2,702.54. This is the ERC but I'm just checking if I can still try and claim it back if they've renamed it? It clearly shows as ERC on the mortgage statement so I'm thinking yes?? Also could anyone please advise me, should I claim for the charges and ERC seperately or claim the full amount for both all in one fell swoop!?!

 

There is an excellent letter that zoot wrote covering both - I will see if I can find it tonight - if not for tomorow, unless you find it first.

[mickey_0]

Hi again gizmo, is it just you and me here tonight?? think I know the one you mean but I was just wondering whether it would actually be best to do them as 2 seperate issues as the charges are obvious but there seems to be some question over whether the ERC is actually reclaimable. I will still try and claim the ERC but don't want to jeopardise the charges claim if the ERC claim doesn't hold up?

[gizmo111]

Hi again gizmo, is it just you and me here tonight?? think I know the one you mean but I was just wondering whether it would actually be best to do them as 2 seperate issues as the charges are obvious but there seems to be some question over whether the ERC is actually reclaimable. I will still try and claim the ERC but don't want to jeopardise the charges claim if the ERC claim doesn't hold up?

 

could be just you and me and I will find letter now

[gizmo111]

could be just you and me and I will find letter now

 

And here it is

 

ACCOUNT NUMBER: XXXX

 

Request for repayment of charges

 

Dear XXXX,

 

 

Our request

 

 

We are writing to ask you to refund the charges which you have levied from our account in respect of late payment fees to the sum of £XXX , the sum of £XXX representing the contractual rate of interest applied by yourselves in respect of the said charges (Please find enclosed schedule of charges detailing dates, amounts and interest) and xxx in respect of a redemption fee. We now understand that such fees are unlawful at Common Law, Statute and recent consumer Regulations.

 

In the case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract as oppose to a charge which represents a penalty. This law was confirmed and upheld in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79. A charge will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable. (You may want to add something here relevant to how the charge they levied could not amount to a genuine pre-estimate. This will obviously vary depending on the particular product and lender)

 

In addition your charges appear to represent an unfair term of contract which is contrary to the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). Our account falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as we are consumers. Your charges constitute 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. Under paragraph 1(e) of schedule 2 this specifically includes terms which have the object of requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation. We would vigorously contend that this is the position regarding the fee of XXXX which you deemed fit to apply to our account.

 

 

Furthermore a fee levied requiring us to indemnify you against any commercial risk to yourself in offering us a reduced interest rate in order to attract our cutom is also contrary to s.4 Unlawful Contracts Terms Act 1977. We are confident that a court is likely to consider this clause to be unreasonable within s.11 of the said Act as a large commercial institution such as yourselves is in a far better placed position than us as consumers to bear the burden of the vassitudes of business.

 

 

I would like to bring your attention to the following statement by The Office of Fair Trading:

 

"A term in a mortgage agreement which requires the borrower to pay more for breaching the contract terms than actual costs and losses caused to the lender by the breach (or a genuine pre-estimate of that) is likely to be regarded as an unfair penalty and to be unenforceable both at common law and (in a consumer mortgage) under the Unfair Terms in Consumer Contracts Regulations. A redemption charge may be regarded as a penalty even if it is expressd as the price for exercising a right rather than a consequence of breaking the agreement."

 

We believe that the charges you have levied of XXXXX for late payment, return of debit fees and early redemption far exceed any true cost to yourself as a result of our breach and any genuine pre-estimate you could conceivably reach. If you disagree, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put to as a result of our breaches, in order to reassure us that your charges really do reflect your costs.

 

Your responsibilities

 

 

We would draw your attention to the terms of the contract which you agreed to at the time that we took out the loan. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

We are frankly shocked that you have operated our account in this way as we had always reposed confidence in your integrity and expertise. We consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived us into agreeing to pay them. Your concealment of the true nature of your charges has prevented us from asserting our rights until now.

 

 

Our targets to resolve this matter

 

We really hope that this matter can be resolved amicably and without the need for redress to the courts. Thus we are asking that you refund the charges which have unlawfully been levied on our account. Failure to refund all the money unlawfully taken from us will result in us taking further action. We will give you 14 days to reply accepting, unconditionally, our request in principle and letting us know a date by which we will receive payment. If you do not respond, or you do not respond positively, within this time period, we shall send you a letter before action giving you a further 14 days in which to reflect. We believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.

 

After that, there will be no further communication from us and we shall issue a claim at the expiry of the second deadline. Thus take this letter as 28 days written notice of our intention to issue a court claim should you not comply with my request. I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you will prefer to do this than merely respond with standard letters and leaflets.

 

Yours faithfully,

 

XXXX

 

 

Hope this helps

 

Best of luck

 

Zoot

 

[zootscoot]

Also could anyone please advise me, should I claim for the charges and ERC seperately or claim the full amount for both all in one fell swoop!?!

 

Its up to you. I am doing mine separately as they are for different accounts. If you decide to do them separately at the same time the court will probably merge them in any event. If you do one after the other there is achance the court will strike the second one out saying it should have been dealt with in the original claim. As you don't have any issues about going over 5K it would probably be best to do them together. They can admit one set of charges and defend the other so its not like you will lose the claim to the charges altogether.

 

If your using the letter the purple bits are for if you are claiming charges in addition to ERC. You will need to put it all into the same font as it changes throughout and also change Unlawful Contracts Terms Act for Unfair Contract Terms Act.

 

Best of luck

 

Zoot

[mickey_0]

Thanks for the advice zootscoot, you have put my mind at rest as I was concerned that by lumping them together I might lose the charges if I didn't win the ERC too. Probably not the best place for me to be starting in all honesty but it's the first reply I've received and I really want to put all this reading to good use!! I follow your threads and posts with great interest by the way, you are an inspiration!!!

 

M