Orge Vs Barclays/Woolwich Mortgage

[orge]

Hi,

Thought I would start the next (and probably last) round of my ongoing battle with Barclays.

This time it's for mortgage fees that were levied between 2002 and 2010.

Total is about £1500 and compounded restitution interest at 22% adds another £7.5k.

There's no previous claim history with this but the mortgage is still with Barclays

(v low variable rate and I will likely remain on this until full term).

Also, the arrears were cleared at the end of last year but

there is still a suspended repossession order on the house.

I believe I can apply to the court for this to be removed at the end of this year (after 12 months of clear payments and no arrears).

Should I be concerned about the repossession order and leave my claim until this has been removed?

Also, since there are no arrears and payments are up to date,

would I get the choice of crediting this payment to the balance or directly to myself?

Thanks,

J

[slick132]

Hi Orge,

 

If the a/c has no current arrears, I see no reason to delay making your reclaim.

 

I also think you can seek a direct refund if you don't want the refund credited to the a/c.

 

[orge]

Prelim letter sent on Friday.

 

J

[orge]

Stalling responses received from Barclays. LBA sent yesterday. :)At least it won't take me too long to put together my N1 this time! ;)J

[orge]

Finally had a response from Barclays... They have refunded around £450 in charges and £150 in interest to my mortgage account.

Have been unable to verify this as yet, but I am writing them a response to accept this only as partial payment towards the full balance and request that it is refunded to my current account instead. They also refer to the OFT test case regarding charges and claim that this forms the basis of a test for fairness in relation to mortgage accounts... I don't think so!

 

J

 

P.S. Next stage will be to file N1, but I would like to conclude my CC case first.

[slick132]

Hi Orge,

 

Yes, confirm that you do not agree with their figures (assuming you are seeking a larger refund), nor do you agree to the refund being made to the mgge a/c.

 

Your court claim for the required refund can follow when you're ready.

 

[orge]

Lettered them up yesterday. :)Also spoke to account services and was told that there is a cheque for the refund on it's way... I'm away for work this week, so will find out when I get back home on Friday.Not holding my breath though, as the customer service rep didn't seem to be the sharpest tool in the box!J

[orge]

Barclays are arguing that they do not have to refund the charges/interest directly to myself, as the charges themselves were never added to the account balance. So basically, they are suggesting these would only have been paid when the mortgage expired - e.g. when the house was sold. At the same time, they do concede that interest will have been taken and this would have been added to the balance.

 

I am not entirely convinced by their position, as I thought the statements indicated the fees WERE added directly to my balance - there was no additional fees balance and the fees are clearly on my statements. I need to double check this when I get home though.

 

Would this even make much difference in relation to a claim? The majority of my claim is for restitutionary interest so, assuming that this is still valid, there can't be an argument about this being paid directly to myself?

 

J

[slick132]

Hi Orge,

 

If the penalty fees are shown on your mgge statements as being added to the a/c balance on which you are charged interest, I don't see how the bank can maintain their stance.

 

If you are ready and willing to proceed on this, I think you should prepare your N1, Particulars of Claim and SoC.

 

Regarding the SoC, I would claim the full amount shown on your updated spreadsheet.

 

The refund of £450 +£150 can be dealt with by the bank retrieving this from the account where they credited it. Otherwise that £600 will remain as credited on the a/c which is not what you want.

 

[slick132]

Did you see my PM earlier.

 

[orge]

Yup and I've replied! :)Gonna have another look at the statements when I am back home tomorrow. Fairly sure that this is where the charges have been levied but maybe I missed something.Agree that the claim should be straightforward if the statements back this position up.Will report back over the weekend! ;)J

[orge]

Checked through my statements and the charges have clearly been added to the balance. This is actually stated on some of the statements and the numbers tally up as well.

 

Will complete my N1 and file this week.

 

J

[slick132]

Take your time with your PoC and post here if you have any Q's before you file the claim.

 

[orge]

1st draft of POC. I have italicised where mortgage-centric tweaks have been made to the usual credit card template. Would appreciate if you could give these particular attention, as I am not 100% sure about some of these.

 

Thanks!

 

J

 

PARTICULARS OF CLAIM




 

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around xx/xx/xxxx, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxxxxxx ("The Account").



2. The Agreement essentially consists of the Defendant providing the Claimant with an initial advance which the Claimant agreed to repay. In return the Defendant was entitled to charge interest on the balance at the published rate.



3. The Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974. - Remove?



4. At all material times the contract was subject to the Defendant’s standard terms and conditions which could be varied from time to time.



 

Summary



5. Throughout the course of the Agreement, the Defendant has added numerous default charges to the Account for the Claimant’s failure to make the minimum payment on the due date, if the account was in arrears and or if a payment is returned. (Full particulars are set out in schedule 2).


6. The default charges were applied in accordance with the standard terms of The Agreement which were:


a) A penalty payable on breach of contract and thus unenforceable: and


b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Claimant.



7. The Claimant is accordingly entitled to repayment of the sums wrongly added to the Account.



 

The Charges



8. The standard Terms of the Agreement in substance provided as follows:


(a) The Defendant would provide the Claimant with an initial advance.

(b) The Defendant was entitled to charge interest on the balance at the rate agreed in the Offer of Mortgage.


© The Claimant was to pay a fixed amount by the due date. The Defendant could vary the amount by notifying the Claimant in writing.

(d) The default charge was £27.50 from Dec 2002 to Sept 2008. In addition, a separate default charge was levied for arrears on the account. This was £15 from January 2003 to March 2004, increasing to £40 from July 2004 to Sept 2008. From Oct 2008 onwards, these separate charges were consolidated into a single charge of £40.



 

Penalty



9. The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Bank in relation to the Claimant’s transgressions.



10. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.



 

The Regulations




11. At all material times the Claimant was a consumer within the Regulations.



12. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Claimant.



13. Without prejudice to the burden of proof, the Claimant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.


(1) The terms relating to Charges were standard terms; they would not be individually negotiated.


(2) The Charges were a penalty for breach of contract.


(3) The Charges exceeded the costs which the Bank could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.


(4) Accordingly the Charges were a disproportionate charge incurred by the Claimant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.


(5) As the Bank knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.


(6) As the Defendant knew, the Claimant had no means of assessing the fairness of the Charges.


(7) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Defendant in a way which was inequitable.



15. Without prejudice to the burden of proof, the Claimant will contend that the terms’ imposing the Charges are not core terms under regulation 6 of the Regulations and relies on the following matters.


(1) The assessment of fairness does not relate to terms which define the main or core subject matter of the Agreement.


(2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).


(3) The Charges are correctly described as default charges by the Defendant in the key information provided to new customers.



16. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.



17. The Defendant wrongly applied Charges to the Account totalling some £1.5k between xx/xx/2002 and xx/xx/2010. Particulars appear from Schedule 2.

18. On xx/xx/xxxx the Claimant demanded repayment of the sums wrongly applied. 



 

And the Claimant claims;




(1) A declaration that the sums totalling £1.5k have wrongly been applied to the Account. These charges are older than the normal 6 years but are claimed by virtue of s32 (1) c Limitations Act 1980 as per Kleinwort Benson v Lincoln City Council.



(2) Payment of the said sum of £1.5k and interest in restitution of £8k as per Sempra Metals v Inland Revenue Commissioners.



(3) Interest under section 69 of the County Courts Act 1984*at the rate of 8% per annum [daily rate of xxp per day] from the date of claim until judgment or sooner payment.


(4) Court costs of £455.



 

I believe that the facts stated in these particulars, comprising of 3 pages, are true.



Dated





Signed






 

Schedule 1



From Barclays Conditions in force (as of Dec 1995).

 

3. Payments

3.1 The Borrower shall repay the Amount Secured to the Company on the terms set out in the Offer of Mortgage. Subiect to any conditions to the contrary in the Offer of Mortgage, the Borrower shall, pay interest on the Amount Secured from the Advance Date and on each Monthly Date shall pay the Monthly Payment which shall comprise interest at the Rate.

3.2 The Borrower will make the Monthly Payment to the Company on each Monthly Date

3.3 All payments in accordance with these Conditions except payments of redemption monies shall be made to the account of the Company by a direct debit and the Company shall be entitled to calculate each Monthly Payment in accordance with the provisions of these Conditions when collecting it

3.4 If any direct debit payment is refused by the Borrower's Bank then the Company shall be entitled to make a service charge for each unsuccessful application for payment of an amount fixed by the Company from time to time which shall be payable by

the Borrower on demand and until such sum is paid it shall form part of the Amount Secured and bear interest at the Rate

3.5 If any direct debit to the Company is cancelled and is not replaced with a new direct debit or the account is in arrears then without predjudice to the other remedies of the Company in respect of such breaches of these Conditions the Company shall be entitled to make a monthly administrative charge in an amount fixed by the Company from time to time, such charge to be payable on demand by the Borrower and thereafter until paid shall form part of the Amount Secured and bear interest at the Rate

3.6 Whenever any Monthly Payment (including interest payable under these Conditions) shall be in arrear for more than 21 days the Company may (without prejudice to its rights under Condition 8) at any time enforce payment of any interest whether capitalised or not under these Conditions

[slick132]

Hi Orge,

 

There is a PoC for reclaiming mgge penalty charges here - http://www.consumeractiongroup.co.uk/forum/content.php?708-Mortgage-charges-and-other-unfair-treament-Particulars-of-Claim-template

 

[orge]

That link doesn't work for me; I get a permissions error message?

 

J

[slick132]

Ah, ok. It may have been in our older Library facility.

 

See the thread here - http://www.consumeractiongroup.co.uk/forum/showthread.php?404686-Barclays-Mortgage-Arrears-claim&p=4361189&viewfull=1#post4361189

 

[orge]

Cool. I will sort this out tonight and get it posted tomorrow. :)J

[orge]

Okies. How does this look? Quite a bit simpler than the CC claim by the look of things!

 

Particulars of Claim

 

1. The claimant entered into a mortgage agreement with the defendant on or around xx/xx/2001 concerning a secured loan of £XXXXXX.

 

2. The said loan is subject to the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR)

 

3. The defendant is statutorily bound by Financial Services Authority regulations – mortgage: Conduct of Business rules (MCOB) contained in the FSA Handbook, implemented under the Financial Services and Markets Act 2000

 

Summary

 

4. The mortgage fell into arrears after the claimant fell into difficulty and was unable to keep up the repayments as required by the mortgage agreement.

 

5. The defendant levied mortgage arrears charges totalling £1.5k against the claimant.

 

6. The defendants also levied further interest upon the said unlawful charges

 

7. The mortgage arrears charges were levied at a rate which exceeded their administrative costs.

 

8. The level of the charges were unfair because they breach the requirement of fairness contained in UTCCR.

 

9. The level of the charges is also unfair because they are the result of unfair treatment by the defendant and therefore levied in breach of the defendant's statutory duty to treat their customers fairly contained in MCOB.

 

10.For these reasons the interest charged on the unlawful charges is also unlawful.

 

And the Claimant claims;



 

(1) A declaration that the sums totalling £1.5k have wrongly been applied to the Account. These charges are older than the normal 6 years but are claimed by virtue of s32 (1) c Limitations Act 1980 as per Kleinwort Benson v Lincoln City Council.



(2) Payment of the said sum of £1.5k and interest in restitution of £8k as per Sempra Metals v Inland Revenue Commissioners.



(3) Interest under section 69 of the County Courts Act 1984*at the rate of 8% per annum [daily rate of 35p per day] from the date of claim until judgment or sooner payment.

(4) Court costs of £455.

 



I believe that the facts stated in these particulars, comprising of 3 pages, are true.

Dated



Signed

[slick132]

Hi Orge,

 

In the later section (2), I would mention the rate your are claiming in restitution, saying :-

 

(2) Payment of the said sum of £1.5k and compound interest in restitution (at xx%) of £8k as per Sempra Metals v Inland Revenue Commissioners.



 

I will ask one of our legal bods to look in and see if they are happy with the PoC, before you send it.

 

[orge]

Ok. Thanks for that.

 

J

[orge]

I just thought of s couple of questions around this claim:

1. There is a suspended reposession order on the house and I would like to get this discharged asap. However, I have only recently cleared the arrears and understand that the courts/creditors may not agree to this until the account has been in the black for some time (1 year?).

 

Clearly, if Barclays hadn't stacked on unfair charges, I would have reached this point a lot sooner (up to 2 years ago). Is there any way I could use tgis to get the reposession order removed more quickly? If so, should it be in my poc or should I raise it as a separate issue after my claim is completed?

 

2. There are some additional charges that I didnt reference in this claim. From the poc template, I now see that I could have included them:

2 x home visits @ £80 each

2 x Legal charges relating to suspended reposession @ ~£500 each

 

Since my current claim is already just below the small claims threshold, there wouldn't really have been much benefit in including these anyway. However, what would be the chances of claiming these separately at a later date - these are more recent so they are within the 6 year limit until December 2015.

 

Cheeky, I know! My gut feeling is the odds are slim, but it might be worth chancing it.

[AndyOrch]

I would remove both point 4,s Orge and refrain form using the word " arrears ".

 

your costs in issuing the claim are automatically included in any judgment.

 

Andy

[orge]

Edited as suggested abovep>

Particulars of Claim

 

1. The claimant entered into a mortgage agreement with the defendant on or around xx/xx/2001 concerning a secured loan of £XXXXXX.

 

2. The said loan is subject to the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR)

 

3. The defendant is statutorily bound by Financial Services Authority regulations – mortgage: Conduct of Business rules (MCOB) contained in the FSA Handbook, implemented under the Financial Services and Markets Act 2000

 

Summary

 

4. The defendant levied mortgage charges totalling £1.5k against the claimant.

 

5. The defendants also levied further interest upon the said unlawful charges

 

6. The mortgage charges were levied at a rate which exceeded their administrative costs.

 

7. The level of the charges were unfair because they breach the requirement of fairness contained in UTCCR.

 

8. The level of the charges is also unfair because they are the result of unfair treatment by the defendant and therefore levied in breach of the defendant's statutory duty to treat their customers fairly contained in MCOB.

 

9.For these reasons the interest charged on the unlawful charges is also unlawful.

 

And the Claimant claims;



 

(1) A declaration that the sums totalling £1.5k have wrongly been applied to the Account. These charges are older than the normal 6 years but are claimed by virtue of s32 (1) c Limitations Act 1980 as per Kleinwort Benson v Lincoln City Council.



(2) Payment of the said sum of £1.5k and interest in restitution of £8k as per Sempra Metals v Inland Revenue Commissioners.



(3) Interest under section 69 of the County Courts Act 1984*at the rate of 8% per annum [daily rate of 35p per day] from the date of claim until judgment or sooner payment.

 



I believe that the facts stated in these particulars, comprising of 3 pages, are true.

Dated



Signed

[AndyOrch]

Refer to the applicable MCOB rule 12.5 at 8

 

https://fshandbook.info/FS/html/FCA/MCOB/12/5