alisonf vs Bristol and West

[alisonf]

Hello,

 

I have been reading through all the threads and I am sligtly confused. Can I claim back my mortgage redemption fee?

 

We have just remortgaged and changed mortgage companies. We have been charged an administration fee of £195 and a redemption fee of £5305.

 

Any help???

[paulpb123]

Hi Alison,

Don't be confused! Yes, you can reclaim your ERC. Here is the prelim:

 

Request for repayment of early redemption charge

 

Dear Sir/Madam

 

Account Number: xxxxxxxxx

 

I am writing to request a refund of the early redemption charge of £xxxx which was debited to my account on xx/xx/xxxx. I now understand that this charge is in all likelihood disproportionate to the costs that you actually incured. As such, this penalty is unlawful at Common Law, Statute and recent consumer regulations. Such disproportionate charges are considered to be unfair per se by the OFT who reported on 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.

 

If you believe that this charge is proportionate to the costs you have incured as a result of the early redemption of my mortgage, could you please demonstrate this by providing a full breakdown of those costs or a pre-estimate of your losses. Please note that I do not require an explanation as to why this charge was made; I am fully aware of the terms and conditions of my mortgage. What I require is a breakdown of your costs in order to reassure me that the charge is justified.

 

Having taken legal advice on this matter it is very clear, as you will no doubt be aware, that English contract law requires such charges to be a genuine pre-estimate of your losses. In the case of Castaneda and Others v Clydebank Engineering and Shipbuilding Co Ltd., (1902) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incured from a breach of contract as opposed to a charge which represents a penalty. This was upheld in the case of Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79. In addition to this, your charge represents an unfair term of contract which is contrary to the Unfair Terms in Consumer Contracts Regulations 1999 (SL. 1999/2083). 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.

 

I would also like to bring to your attention 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 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 at Common Law and (in a consumer mortgage) under the Unfair Terms in Consumer Contracts Regulations.

 

The fact that I signed the mortgage offer containing the term relating to the early redemption charge does not make this term enforceable, as I’m sure your legal department are fully aware.

 

I will now give you 14 days to reply to me accepting, unconditionally, my request in principle and letting me know a date by which I will receive payment.

 

If you do not respond, or if you do not respond positively, within this time period, I shall send you a Letter Before Action giving you a further 14 days in which to reflect. While I would like to settle this matter amicably and without the need for court action and the attendant publicity this will receive, you can take this letter as 28 days notice of my intention to issue a claim should you not comply with my request. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.

 

Yours faithfully,

 

 

Alison

 

 

Hope this is of use. Good luck!

[alisonf]

Thank you!!!

I assume they will send me a nasty letter telling me where to go when they recieve this...then I either send a second letter or go to court?

 

I am claiming against Bristol and West. Will let you know what happens....

[paulpb123]

Yeah, they'll send you a bog off letter so you then send a letter before action, followed up by a claim when they fail to pay up.

[ukaviator]

Hi Alison

 

You can claim them back. Be careful with the wording on your AQ paperwork from the court if it gets that far. You have to show that you did infact breach the contract with them. They may try and wiggle out saying it's a service charge otherwise. Seen a few threads here where some are beginning to underestimate the enemy. If you need assistance keep on the mortgages thread and help is nearby. Read up on ZootScoot's thread about mortgage Erc's. Very good reading.Also read this thread to fully understand the rules of engagement. Great work carried out here.

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/32610-saraounia-simpleloans-gmac-rfc.html

 

 

Good luck

 

Uk...

[alisonf]

Thank you both. Quick question, Do I reclaim the £195 admin fee aswell or just the ERC?

[markt]

im pretty sure you cant reclaim the admin fee

[Longleigh10]

d'you know what's so annoying about all this! they charge an erc and the admin. fee is separate! surely this is part of their 'so called costs!'

[alisonf]

I was hoping that the admin fee could be recovered too, but I guess thats me just wanting all my money back from them....

 

Does anyone know how far back I can claim ERC fee's? I have a £3k one from 3 years ago and possibly a couple more in the past 10 years?

 

Can I still go after these fee's even though it was along time ago?

[ukaviator]

Hi

 

You can go back 12 years. Don't forget to add interest to the ERC when you file with Moneyclaim. Doubt they will pay up straight away.

 

Good luck

 

Uk. . .

[alisonf]

Hello,

Just doing my letter now to send off in the morning. Which department should I send it to? I have Bristol and West's main office address in Bristol I also have their fax number so I was wondering If I should fax it as well as post it?

[alanfromderby]

Okay, firstly I would say that you should claim the admin fee as well. It is up to B&W to prove that this fee is proportionate to their costs. Many of B&W fees are purely for passing files between departments, and actually do not relate to any actual or provable process.

 

Secondly, you can be certain that they will allow the action to reach the county court stage, therefore it is vital that you follow the procedures.

 

In the end they have to justify the charges they have levied, and I am of the opinion that they cannot do that. This means the only way out for them is to jump on mistakes that you make.

 

At all stages keep the pressure on them, and stick to you timetable. When it reaches the court stage your claim will be in Fast Track. Whilst this ensures you will get Standard Disclosure, you will need to push for exchange of copy documents as well.

 

All the best with this claim, and I will be watching progress with interest.

[alisonf]

Ok finally plucked up the courage to send the letter. After reading several other threads I have only sent it with proof of posting (I think it was Zootscoot who said not to waste you money) Now I am panicing that I should have sent it recorded or special...oh well whats done is done.

 

Ive asked them for £5500.32. I am hoping it will go to small claims as it is only a little bit over £5k ( well actually Im am hoping the will have learnt their lesson with alanfromderby and will just roll over and give to me!!!)

 

So they have till the 6th December to reply...

 

Straying off subject here.. my partners father has a malignant brain tumor and will never work again he needs to send letters offf to his creditors telling them this and asking if maybe they will let him off the money or at least reduce the payments. He asked me to do this as I got back his bank charges but I am clueless in what to say to the banks?? Any one have any ideas??

[alanfromderby]

To answer your last point first, I would suggest a call to the National Debtline, as they are best placed to advise on matters such as this: National Debtline, for FREE CONFIDENTIAL and INDEPENDENT ADVICE call 0808 808 4000

 

As for B&W, I would expect your claim to go into Fast Track. However, in my opinion, that puts B&W into a far more difficult position as they will have to provide Standard Disclosure. From my experience this is when their case starts to look extremely untenable.

 

I do hope they crumble in your case, but be prepared for a long slog. They do not like it when the customer bites back!

[alisonf]

Hi

 

I am prepared for it. I will fight every step of the way to get that money back...I was on the verge of bankruptcy for a long time so £5.5k is a lot of money to me.

 

I called the debt line and they said send his creditors a letter...back to square one. I think I might just write them a lovely letter and see if they have a soul:p

 

Who do I message to change my title to alisonf vs Bristol and West?

 

Next silly question what is MCOL?? I keep seeing it in other threads...

[alanfromderby]

Title duly changed.

 

MCOL = https://www.moneyclaim.gov.uk/csmco2/index.jsp

 

Only usable for very basic money claims - I would not advise using this method for ERC claims.

[paulpb123]

Only usable for very basic money claims - I would not advise using this method for ERC claims.

 

Alan,

Why is this? I ask because I've used MCOL for quite a big claim and I think some others have too.

[alanfromderby]

If it is a financial claim only, then generally it is fine.

 

However, with the limit on the number of characters the POC's have to be very basic - this creates problems later in the process, as solicitors have already tried to have claims struck out for failing to show exactly what terms are being challenged by what legislation.

 

Secondly, where claims are challenged, MCOL is getting bogged down with claims, and delays are now occurring with the transfers to local courts.

 

Of course, if any other relief is needed, MCOL cannot be used anyway.

 

I would agree that many claims are resolved without any problem, however, when a problem occurs the only point of contact is the MCOL helpline. With the sheer number of cases the advice they can offer tends to be in very general terms, and often they are unable to locate the case files as they are waiting to be actioned by another member of staff.

 

With the N1 route, you have unlimited space for your POC's, and you immediately have a point of contact when any problem occurs or you need some guidance on procedure etc.

[alisonf]

Still no response from my prelim letter, how exactly do I change the LBA to fit mortgage companies... I am a bit rubbish with letters and forms.

[alanfromderby]

To be honest you are just restating what you said in your prelim, but warning them of the consequences if the fail to respond by the deadline.

[alisonf]

Thanks Alan,

 

This is what I said. (I used your letter again!)

 

 

 

 

As you have not responded to my initial letter (dated 19.11.2006) I am writing to you again to restate the fact that I am requesting a refund of the early redemption charge of £5305.32 and the administration fee of £195 (a total of £5500.32) which was debited from my account on 14/11/2006. I now understand that this charge is in all likelihood disproportionate to the costs that you actually incured. As such, this penalty is unlawful at Common Law, Statute and recent consumer regulations. Such disproportionate charges are considered to be unfair per se by the OFT who reported on 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.

 

If you believe that this charge is proportionate to the costs you have incured as a result of the early redemption of my mortgage, could you please demonstrate this by providing a full breakdown of those costs or a pre-estimate of your losses. Please note that I do not require an explanation as to why this charge was made; I am fully aware of the terms and conditions of my mortgage. What I require is a breakdown of your costs in order to reassure me that the charge is justified.

 

Having taken legal advice on this matter it is very clear, as you will no doubt be aware, that English contract law requires such charges to be a genuine pre-estimate of your losses. In the case of Castaneda and Others v Clydebank Engineering and Shipbuilding Co Ltd., (1902) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incured from a breach of contract as opposed to a charge which represents a penalty. This was upheld in the case of Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79. In addition to this, your charge represents an unfair term of contract which is contrary to the Unfair Terms in Consumer Contracts Regulations 1999 (SL. 1999/2083). 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.

 

I would also like to bring to your attention 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 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 at Common Law and (in a consumer mortgage) under the Unfair Terms in Consumer Contracts Regulations.

 

The fact that I signed the mortgage offer containing the term relating to the early redemption charge does not make this term enforceable, as I’m sure your legal department are fully aware.

 

As you have not responded to my initial letter, I will now give you 14 days to reply to me accepting, unconditionally, my request in principle and letting me know a date by which I will receive payment.

 

If you do not respond, or if you do not respond positively, within this time period, I shall

issue a court claim for a full refund of these unlawful penalties. While I would like to settle this matter amicably and without the need for court action and the attendant publicity this will receive, you can take this letter as a letter before action, giving you 14 days notice of my intention to issue a claim should you not comply with my request. I believe that this target is more than sufficient for a large company such as yours with dedicated staff and departments.

 

 

 

 

 

 

 

Yours faithfully,

[alanfromderby]

That looks fine - did you clearly head it Letter Before Action?

[alisonf]

No I didn't, it only says that it is the letter before action in the last paragraph. Will change that now..opps

 

Thank you.

[alisonf]

I finally had a response from Bristol and West. It unnerved me a bit as Its a nice letter and I was bracing myself for nasty letter telling me I was wrong.

 

So here it is:

 

Thank you for contacting us with regard to your complaint, details of which were recieved 18th December 2006. I can Confirm that your compalint is being dealt with in line with out Internal Compaliants Procedure. A copy of our leaflet entitled 'A Helping Hand' which surmises this, is enclosed.

 

I understand you wrote to us on the 19th November 2006 but recieved no response from us. You had requested that we refund the Early Repayment Charge and Redepmtion Administration Fee of £5,305.32 and £195 respectively, following the redemption of the above loan on the 14th November 2006, as you believe these charges to be unlawful.

 

You have now submitted a further letter dated 9th December 2006, which clearly defines and provides full details of the basis of your claim. You state that you will allow us 14 days in which to provide a positive response. Howeve, you state that if we fail to do as you request you will issue a court claim for a full refund of penalties incurred.

 

If I have not correctly identified all the points that you raised, or you would like to comment further please let me know.

 

We will investigate your complaint, and when this investigation is complete we will contact you again with our findings. Our aim is to do so within fifteen working days of reciept of your complaint.

 

Yours sincerly

 

Mrs C A Tucker

[alisonf]

How rude! The offered me £60.... Pah! Court claim here I come