Willowb v rbs /erc*SETTLED *

[Guest willowb]

Hi there:)

 

I've been reading through.....

http://www.consumeractiongroup.co.uk/forum/other-institutions-successes/19501-zoot-halifax-mortgages-8.html?highlight=redemption+charge+rbs

 

I bet you'd sweep me off my feet Zoot! what a guy!!!***sighs and faints***wimper wimper....

 

and

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

 

Inspiring or what!!!!

 

 

So, I have decided to take *** on for an early redemption charge we paid in Feb this year. I haven't found anyone who's taken them on for this before......anyone point me in the direction of a thread? maybe I'll be the first? that's ok!

 

So, in order to get this right I'm working on the the prelim letter. I can tell you that the statement went like this:

 

Early redemption charge = £ 4,322.62 (barstewards!)

 

Net interest to anticipated redemption date = £478.74:confused:

 

Sealing fee = £225.00

 

The daily interest charge was £15.95 for every day over the anticipated redemption date, I don't think we went over the date but I'm not sure so I'll leave it at the figures above, which total £5026.36.

 

 

I've copied and pasted a couple of prelim requests, so I'll re work them and come back with mine when it's done.

 

Wish me luck!!!

 

Wxx

[nathal]

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/43444-erc-prelim-lba.html

 

prelim for erc is in here

[Guest willowb]

btw nathal, I wanted to help with your letter (about your car, it was you wasn't it?) but I felt out of my depth......i hope you get it sorted!

 

Wxx

[nathal]

no probs, letter drafted and sent.

 

btw, im claiming unlawful charges for a mortgage, then moving onto the erc

[Guest willowb]

Good luck with that:) and........... your avatar freaks me out:) lol

 

Wxx

[zootscoot]

I bet you'd sweep me off my feet Zoot! what a guy!!!***sighs and faints***wimper wimper....

 

 

 

Sorry to disappoint willow, but I'm a lady lol!

 

Best of luck with your claim

 

Zoot

[Guest willowb]

Does it matter that **** 'mortgage centre' is in Scotland? I live in England, so I'm not bound by Scottish rules and regs am I? even though they've based their mortgage centre in Scotland:confused:

 

Wxx

[Guest willowb]

Sorry to disappoint willow, but I'm a lady lol!

 

Best of luck with your claim

 

Zoot

Hahahahahahahahahahahahahahaha

OMG!!! well, you've got me thinking now!

 

Wxx

[Guest willowb]

Hi y'all:D

 

Final figures are:

 

Early Repayment Charges: £4,322.62

Sealing Fee: £225.00

Net Interest to anicipated redemption date: £478.74

Daily Interest charge (for each day the redemption was delayed beyond the anticipated redemption date: £15.95 X 16 = £225.20

 

Total = £5,251.56

 

Is this right? Can I claim (attempt to) back all of this?

 

Wxx

[zootscoot]

Net Interest to anicipated redemption date: £478.74

Daily Interest charge (for each day the redemption was delayed beyond the anticipated redemption date: £15.95 X 16 = £225.20

 

 

This is not claimable as it represents normal interest incurred on your mortgage up until redemption.

 

All the rest is

 

All the best

 

Zoot

[Guest willowb]

Thanks Zoot.....I'm glad I checked!

 

So, it is:

 

Early redemption = £4,322.62 and,

sealing fee = £225.00

 

Total = £4,547.62

 

here I go!!!!!:o ****......it's me again!

 

Wxx:cool: not really being cool but the sun's making me squint and I need botox as it is:-| lol

[Guest willowb]

Oh!!! but what about their address being in Scotland?

 

Should I just use their head office address in England....but that's not the mortgage centre?

 

Wxx

[zootscoot]

Thats good it will remain in the small claims track.

[zootscoot]

Should I just use their head office address in England....but that's not the mortgage centre?

 

 

 

Send your letters to the mortgage centre but use their registered office in England for your claim.

[Guest willowb]

Okey dokey:) thanks again!

 

Wxx

[Guest willowb]

hi all:)

 

reply back from **** today......

 

I refer to your concern regarding the above mortgage account. To progress the resolution of your concern I thought I would write to keep you up to date. Gee thanks:rolleyes:

 

Initially, let me thank you for bringing this to our attention as it is important that we are made aware of any instance where our customers feel that we have fallen below the standards expected of us. No problem!

 

The customer care team will now be dealing with the investigation into your concern until we are able to reach a mutual resolution.

 

your comments have been read carefully and we are currently investigating the issues which you have raised. We will be in contact again by the 06 december 2006 to provide you either a full response or further update of our investigation.

 

we will do our best to resolve your concern quickly and to your complete satisfaction. that's nice to know:rolleyes: To make you aware of all the options available to you I have enclosed the leaflet entitled make It Happen which explains how we handle customer's concerns within the Royal bank of Scotland Plc.

 

and so on....

 

Well, I will be sending out my LBA on the 2nd of Dec regardless....that is unless I'm advised to do otherwise? I'm treating this like I would a normal bank claim for unfair charges, so to me this is just a delaying tactic.

 

Wxx

[zootscoot]

Thats right Willow stick to your timetable.

 

All the best

 

Zoot

[Guest willowb]

Once again, thanks for the reassurance Zoot:)

 

Wxx

[Guest willowb]

Hello:)

 

LBA to be sent in the morning RD....

 

 

-----------------------

LETTER BEFORE ACTION

 

Dear Sir/Madam,

 

ACCOUNT NUMBER: ************

 

We are very disappointed in the response to our letter (sent recorded delivery on 20th November 2006) relating to the repayment of the redemption fee of £4,567.62 (a spreadsheet detailing the charges is attached). Since paying the fee we now understand that such fees are unlawful and unenforceable as outlined in our previous letter. We would draw your attention to the terms of the contract which you agreed to at the time that we opened our account. 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 as our fiduciary. We require repayment in full of this money. If you do not comply fully within 14 days then we shall initiate court proceedings against you for the full amount, plus interest, plus costs and without further notice.

 

 

Yours faithfully

 

---------------------------

 

Wxxx

[Guest willowb]

Hi guys:)

 

Just for the 'thread record', I got this letter from ***on friday....

 

 

Due to file a claim on the 18th of Dec and I'll sick to that.

 

I'll keep you updated.

 

Wxxx

[ukaviator]

Well done. Good luck.

 

Ukaviator

[zootscoot]

Thats right Willow stick to your time table

[Guest willowb]

Hi Zoot....LOVE the avatar!

 

Got following letter today, wondered what you thought of it. I haven't found anyone who is taking *** on for an erc yet....

 

 

 

PLUS they have had the cheek to offer me £100!!!!:o

 

I've dealt with *** before and they are like bull dogs so I'm prepared for a fight with them.

 

Eager to know what you think Zoot!

 

Wxxx

[zootscoot]

Hi Willow,

 

Its all pretty standard stuff. Accept the refund as partial payment and make clear that you fully intend to pursue the remainder. How have they worded the compensation receipt form?

 

There is a response to the no breach argument in the stickies at the top of this forum.

 

All the best

 

Zoot

[Guest willowb]

Hi Zoot:) It was just a form attached to the back of the letter for me to sign stating 'I accept £100 as compensation.....etc'....so, I won't be signing it!! lol

 

I have used your template letter, thank you....I've adjusted it as follows...

 

-------------------------------------------

 

Thank you for your letter dated 14 December 2006 regarding our request for the refund of the ERC which we paid on redeeming our mortgage. We are willing to accept your offer of £100 as a partial settlement of the full amount which we will be pursuing through the Courts.

 

The charge you have levied in the form of an early redemption fee (substitute any other name which your mortgage provider has used) represents a charge in relation to a breach of contract on our part in that we terminated the mortgage contract before the contractually agreed period of 5 years.

 

This term of the contract was clearly stated in the written mortgage offer signed by myself an my husband. There is clearly no room for doubt that such a clause existed in the contract. Similarly, there is no question that we in fact redeemed the mortgage on the 17/02/06as evidenced by our final redemption statement. This date is clearly well before the contractually agreed date and thus represents a clear breach of the contract. Furthermore in the case of Campbell Discount v Bridge the House of Lords held that a contractual term giving rise to an option to termiante early did not prevent a finding of breach of contract.

 

When we terminated our mortgage early it was purely to be free from the burden of the contractual obligation. We were not aware that we were exercising an option to terminate but merely knew that if we did end early we would have to pay a penalty. If we are unaware that we are exercising a right how can it be said that we intended to exercise such a right. At the time the mortgage was redeemed we were facing financial difficulties which forced us to remortgage our property. At the time we were denied an opportunity to make an application to remortgage with RBS and so had to seek a mortgage elsewhere with another lender.

 

Furthermore, the clause set out in the terms and conditions of the mortgage contract under 'early redemption charges' is merely a penalty clause disguised as an option to exercise a right. It is our contention the Courts would look to the substance of the clause rather than the form. It is thus my assertion that the clause 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.

 

As such, 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 draw your attention to the Regulation 7 of the Unfair Terms in Consumer Contracts Regulations 1999:

 

7. - (1) A seller or supplier shall ensure that any written term of a contract is expressed in plain, intelligible language.

 

(2) If there is doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail.

 

 

The fact we agreed to the clause at the time the contract was entered is completely irrelevant. In all the relevant case law there has been no argument that the relevant clause was in fact agreed to.

 

For these reasons, and the fact that you have not provided us with the details of how you have estimated your 'liquidated damages', we believe that the ERC levied was in fact a penalty and we shall be isssuing proceedings against you forthwith.

 

Enc. a schedule of charge plus interest.

 

Yours faithfully

---------------------------------------------------------

 

I've filled in my N1 and have worded my POC as follows (I'll be sending this off in the morning with the £120 fee)

 

The Claimants are claiming the return of money taken by the Defendant in the way of a redemption penalty charge on 17/02/06 from account no ******. This charge relates to the Claimants' breach of contract in that they terminated the contract before the agreed period. The Defendants' charge for the breach is a disproportionate penalty and therefore unenforceable as it is contrary to common law as established in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79. Further, as a disproportionate penalty it is invalid under the Unfair (Contracts) Terms Act 1977 s.4 and under the Unfair Terms in Consumer Contracts Regulations 1999. Para.8 and sch.2(1)(e). The Claimants have repeatedly asked the Defendant to justify their charges but they have declined to do so.

 

The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and the common law.

 

Accordingly the Claimant claims:

 

a) the return of the amounts debited in respect of charges in the sum of £4,547.62 and any interest charged thereon;

 

b) Court costs;

 

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.

 

-------------------------------

 

I've included a schedule with the letter to RBS and with the N1 form.

 

here I go again!!!!:o

 

Wxxx