Paid Halifax for surveyor fees, now they are saying no mortgage * WON *

[zootscoot]

It is certainly bad practice.

 

I would suggest that you may be able to imply a contract here. They have offered you a mortgage. You have accepted that offer by conduct in paying for the survey. This creates a collateral contract (ie ancilliary to the main mortgage contract) whereby they have promised to give you a mortgage you have accepted this promise which was backed up by consideration (legal talk for you have provided something of value). They are in breach of their promise by withdrawing their mortgage offer. You are entitled to damages for this breach in the form of your losses ie the payment of surveyors fees and any other expenses which you may have incurred.

 

Hope this helps

 

Zoot

[zootscoot]

Hi Unitedfan,

Suggested changes (in red) below with added legal bits! As you are claiming for breach of contract you do have a legal basis for your claim and can pursue it through the courts should you so wish. This is of course up to you. Its probably best to leave out the bit about there activity being lawful according to Ombudsman, they obviously hadn't considered this angle. You might want to send it straight to Rachel Hinchliffe, head of litigation at the Trinity Road address. The customer relations people will have no idea what to do with it!

All the best

Zoot

Dear Sir/madam,

 

I refer to your letter dated 30th August 2006.

 

I am writing to you regarding the above mortgage application. We were accepted for a mortgage and given an offer in principal. We were instructed by the Halifax branch on XXXX XXXX in XXXX to have a survey done, which we did at a cost of £270. We then waited for everything to be completed only to receive a letter from the Halifax instructing us we that, after further credit checks, we were not accepted for the mortgage. We were told by your advisor that the Halifax were in the wrong as they should not have had the survey done at this point, but we cannot have our £270 back.

I would like you to consider the financial strain this decision has had on us. It is not normal practice to do a survey at this point and decline the mortgage thereafter. Furthermore, your own advisor admitted it was a mistake to do a survey at this point. The mortgage advisor I spoke to thought this was outrageous. Is this your normal practice?

 

Having taken advice on this matter I believe that your actions amount to a breach of contract for which you are liable to pay damages. You offered us a mortgage in principle. We accepted that offer by acting on the offer in paying the survey fees. Acceptance by conduct is an established method of acceptance as established in Brogden v Metropolitan Railway (1877) 2 App. Cas 666. Furthermore consideration was provided for this contract by the Halifax in the form of promising to offer a mortgage and by us in the form of paying for the survey. Consideration owed to a third party can constitute valid consideration to a new contract see Scotson v Pegg (1861) 6 H & N 295 and New Zealand Shipping Co Ltd v. Satterthwaite (The Eurymedon) [1975] AC 154 PC. In failing to fulfil its promise to offer the mortgage the Halifax are in breach of this collateral contract which is ancilliary to any possible contract of a mortgage.

I have sought advice on this matter from several sources including a mortgage advisor and the relevant Ombudsman service. I was informed of the details in my previous paragraph and at the very least this was considered extremely bad practice.

 

We are not high earners, this is our first house and we were very excited by the impression we were given by your bank. To have this taken away from us at the last minute due to your mistake may not be devastating for an organisation such as yourselves, but for us it was very upsetting. An amount such as this can have a big effect on a young family trying to scrape together a deposit for a mortgage.

 

Myself, my partner and my two year old child all bank with you. My account was a monthly saver which was set up in Manchester. At the time I set this account up I agreed to feature in an article with the Daily Mail with my family, promoting the savings account I had with the Halifax. I agreed with the articles words (which I never said) about the qualities of banking with the Halifax. This has been put into question with the recent events. I believe myself, my partner and my daughter have always been good customers and I find it hard to believe that you could treat good customers this way.

 

I do not want to close all our accounts with you (along with the house insurance we have taken with you) All I am asking for is some discretion. We feel that we are good customers and the whole episode could have been handled better by yourselves.

 

To reiterate, it was your decision to pay a surveyor, but both sides are aware this was not the best practice and I am asking you to consider that your actions were not in our best interests. At the very least I am sure you will agree this is not the correct practice for a mortgage and I am asking for a reasonable response to my concerns. I also request that your response is not generic and you will enter into a sincere dialogue with me regarding these personal issues I have raised.

However, failure to return the sums taken from us following your breach of contract, will result in us taking further action. We will give 14 days to comply with our request after which time we will write a further request for this money. If you still fail to respond after 14 days we will be issuing a court claim for the return of moneys.

 

I look forward to hearing from you.

 

Yours Sincerely,

[zootscoot]

Hope you had a good time!

 

I'm surprised that BM would not use the survey or was it a different house? There's no harm in waiting to send the letter until the sale goes through... you have up to 6 yrs to bring a claim and I can understand your girlfriend not wanting to risk losing it again.

 

Hope you have a smooth transaction

 

All the best

 

Zoot

[zootscoot]

Hi United fan,

 

I would just write and thank them for their letter, but confirm that it was not just a complaint but request for the money they owe you for breaching the contract as outlined in your original letter and give them a further 14 days notice that you will be issuing a court claim if they fail to return the money.

 

All the best

 

Zoot

[zootscoot]

I think Rachel Hinchliffe probably only deals with cases after a court claim has been filed. So it will probably only be passed over.

[zootscoot]

Very good you might like to add that if you are forced to take the matter to court you will claim court costs and interest. Just to give them a little incentive to settle!

[zootscoot]

Looks good... you mention judicial rate are you in Scotland?

[zootscoot]

Yes should be statutory. You gave me a fright then I have no idea of about Scottish contract law!

[zootscoot]

Fabulous news!

 

Pass on my congratulations!

 

I'm particularly proud of this one. I remember intitially reading the first thread and I didn't think that there was a claim. I was half way through typing a response setting out why there was no claim when the collateral contract argument came to me and I had to delete what I had written and start again!

 

I'm so pleased with this result.

 

All the best

 

Zoot