UCB Nationwide

[kennyh]

About to complete N1 for £10k+ erc. I have floated this question in the "Guidance Notes (Incomplete)" thread but time is a little tight owing to the fact that I have to go away once this is up and running. Question is:

"Are we permitted to claim interest on the erc (from the date the charge was made, at contract rates (reciprocity? as we have done for bank charges) as well as 8%. And when is the 8% meant to be assessed from; is it from date of 1st request or from date of court hearing until settlement?"

I've, so far kept the faith with contributions but all were settled before court. A gut feeling tells me we may go the distance on this but - am I worried?? Do I look worried???

[zootscoot]

Hi Kenny,

 

You can claim either contractual or the statutory rate of interest you can not claim both. It is always good to put statutory as an alternative if you are claiming contractual as contractual is discretionary and there is therefore no guarantee that you will get it.

 

For either statutory or contractual you can claim this from the date you paid the erc.

 

Hope this helps

 

Zoot

[kennyh]

May your Christmas wishes all come to pass!!

Thanks very very much.

[kennyh]

Things trundle on and UCB(Nationwide) have filed notice to defend so I've been boning on others' experiences. Is there an ERC equivalent of the McNamara interview?

Also, without thinking, I've floated an enquiry on Zoot's well worn thread, for which I apologise. I shall keep things here from now on. The question I floated was "I was looking at N150 et al completion on another thread and asked whether a form of words for ERCs had been promulgated. I was advised to re-check this thread (which I've probably read 3 or 4 times over the past 6 months!). Have now done so but see no recent entries refering to N150 (ERC version). Can you assist or point me in the right direction please - we're after almost £11k from Nationwide and don't want to make any stupid c**k up."

ANY assistance would be gratefully received and YES we will be chipping in at the end - without you there is NO way we would be in this position.

[rhianweir]

hi,

we are planning to go against nationwide to for erc have you had much responsefrom the nationwide

[zootscoot]

Make sure you read this thread before proceeding:

 

Particularly p.7

 

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/27030-harsh-letter-received-kensington.html

[rhianweir]

kennya any news from nationwide.?

[kennyh]

Other than at #4 above n'owt. Their due date to file is Fri 2nd Feb and my luck isn't usually good enough to ensure that they don't. Mind you - if that proves to be the case I shall be down the court like a rat up the proverbial drainpipe on Mon am!!

[rhianweir]

any news today

[kennyh]

Checking Mon am - thanks for asking

[kennyh]

They filed defence part of which states " The additional interest payable on early redemption was a payment on a contingency. early redemption was not a breach of contract on the part of the claiment. The additional interest was not, therefore, a penalty charge. The Defendant denies that the additional interest charged to the claiment on repayment of the mortgage contravened the provisions of UTCCR 1999 or UCTA 1977. In all the circumstances, the conditions requiring the payment of additional interest were not contrary to the requirement of good faith, and did not cause a significant imbalance in the partie's rights and obligations under the contract........."

The original contract called for 3 months gross interest if redemption was within 24 months of commencement.

Is it still open for us to meaningfully challenge for standard disclosure of how 3 months was arrived at under Supply of Goods and Services Act 1982. If they've just slapped an arbitrary 3 months int on then does it not become a penalty.

We're not wantonly flying in the face of Zoot's advice but the N1 was issued post jamorgan and the couple involved are still wondering whether to pursue.

Assistance PLEASE

[zootscoot]

I would say as its faast track the risks are too great and therefore the best thing would be to make an offer to settle.

[kennyh]

UCB have, as mentioned, filed their defence and it looks very much as though the folks involved are going to try to challenge " The additional interest payable on early redemption was a payment on a contingency". I did convey your advice Zoot.

Presumeably they can use the revised AQ completion format to seek standard disclosure of how 3 months interest was arrived at under Supply of Goods and Services Act 1982; and indeed any other act that might be relevant as well as a comprehensive explanation as to just what the contingency comprises.

In effect they are trying to say "OK, for the time being (though we disagree) the redemption might not be viewed in the court as a breach BUT the sum involved needs to be justified and not accepted without the defendant being held accountable to a degree. So the defendants can keep what they can substantiate.

Deadline for AQ submission approaches, 22nd Feb; advice and assistance (pointers) please folks.

[gizmo111]

Do as zoot suggests offer to settle at say 50% if that is refused withdraw the claim with a no costs agreement. Taking this to court in the current cliamte is just madness.

[kennyh]

Many thanks for the input Gizmo and don't think I haven't vigourously discussed disengagement (following both your and Zoot's advice), however, this is one 'ornery' guy and I should be grateful for any constructive guidance on which to attack the 'contingency' mentioned by the defendants. We now know the 'exercised option' argument being practiced with success by various opposition but that doesn't mean taking an uncontrollable financial clobbering by any banana that feels like dishing out (or does it). If a line of attack presents itself using any or all of the legislation itemised at #11 and#13 then I should welcome guidance - be it in open forum or via pm.

[zootscoot]

Hi Kenny,

 

There are three lines of attack:

 

1. Argue they were in breach of contract. -

 

This involves looking in to the circumstances surrounding the termination of the mortgage. If they were forced by circumstances to end the mortgage and communicated this fact to the mortgage company the argument will be stronger. If they made a conscious decision to end to get a cheaper deal this would mean they exercised a contractual right and therefore were not in breach.

 

2. Argue that the penalty provisions should apply irrespective of breach of contract.

The cases you sent me would be persuasive in this argument, although, as minority decisons they are not binding. The cases of Associated Distributors v Hall, Court of Appeal decison in Bridge v Campbell, Euro Appointments all need to be distinguished and an argument made to persuade the judge that it is open to them to apply the penalty provisions in the instance of no breach. Use an argument based on UTCCR 1999. See the witness statement in the stickies - which I'm still working on.

 

3. S15 Supply of Goods and Services Act requires the fee for a service to be reasonable. However, this only applies where no fee was agreed in the contract. Most mortgage offers will specify the ERC payable even if it is expressed in terms of a percentage.

 

I have now seen the transcript from Jamorgan's case and it appears that she inadvertently admitted there was no breach by stating she chose to end the mortgage to get a more competitive rate. She then failed to put forward the legal arguments for the application of the penalty provisions where there has been no breach. So we are in no better position to know whether these arguments will succeed in front of a judge. Although I do not know exactly what went on in MF5 and Charbydis' cases. One thing for sure is people need to be absolutely sure of their arguments if they are going to court. Jamorgan had a particularly unsympathetic judge who seemed to be arguing the defendants case for them but interrupting and being difficult and every turn with her.

 

In all the arguments it is going to be the Claimant who has the hardest job of convincing the court and I repeat the advice that as its fast track the best thing to do would be offer a settlement.

 

All the best

 

Zoot

[kennyh]

Zoot, First VERY many thanks for taking time out to reply.

So far as point 1 is concerned they did have (and still do have) medical conditions necessitating a change of abode but, (sods law) didn't communicate this to the lender.

In 2 I shall need to obtain the relevant statements of 'Associated Distributors v Hall' as well as reference to 'Euro appointments' .

So per para 3 above S15 comes into play if we try for termination, as a 'regulator' for legal fees levied by the opposition for 'work done'?

I shall now visit the 'stickies' but, if they decide to 'bat', I shall undoubtedly need to rehearse my arguments using the relevant parts of UTCCR 1999.

Jeeez - don't ever retire - I'm busier than EVER!

[kennyh]

Hi again,

I am about to start helping complete the AQ but I'm still stuck on 1 point. Namely the question of "No breach - no penalty". If they have charged the ERC against a contingency (their words first mentioned in their defence) then can this be treated as a penalty or at least be challenged. I, as yet, still haven't gained any access to Associated Distributors v Hall (still don't know where to look) and am still replowing thru the 'stickies'.

I'm on the clock folks - help would be very much appreciated.

I'm seeking a third channel to challenge the veracity of the ERC levied, in the event the court kicks Zoots' first two suggested avenues into touch. The two suggestions which I shall use to construct a case are 1. Argue they were in breach of contract and 2. Argue that the penalty provisions should apply irrespective of breach of contract.

[zootscoot]

HI Kenny

 

If they have charged the ERC against a contingency (their words first mentioned in their defence) then can this be treated as a penalty or at least be challenged.

 

Very similar argument to the exercising of a contractual right. You can still argue it is a disguised penalty or that their was still a breach of the express term relating to the contract to be payable over a number of years.

 

I, as yet, still haven't gained any access to Associated Distributors v Hall

 

Pm me your email address and I can send you a copy.

 

Check out the improved ERC witness statement in the stickies!

 

All the best

 

Zoot

[kennyh]

Hi folks,

Well its definitely been decided that the case proceeds.

I shall be using every source of input known to CAG members and I shall (as they say on the best 'spy' thrillers) 'go dark' for a while and communicate via pm if necessary. No need to show our hand entirely. But I will keep you advised on wot occurs.

Say a little prayer for us. AQ due in Friday

[kennyh]

Any Mods please

**Urgent advice please**

As a result of his wife's commitments abroad my friend took a conscious decision to embark on this ERC claim under his sole name. N1 issued 10 January.

After reading various threads, upon her return to UK, I typed up a note signed by his wife giving her acquiescence to this arrangement (she only just returned to UK). Co-incidentally we had typed a date wrong on the N1 so upon going to the Court to input a N244 request to amend the POC I took the signed note along. The court office accepted it, but were somewhat mystified and we held off with the N244 for reasons I won’t go into.

We then phoned the ‘in house’ Legal compliance officer at Nationwide to whom we were going to fax a copy of the signed note. He, however, very abruptly, indicated that “that wouldn’t do”. I then said that we could put it into a N244 which he felt would be acceptable.

Problem (or not) that I have is the N244 cannot now go in until Monday – the same day the AQ is due.

Q.i. If I enter under D of the N150 ‘Yes’ to any applications made in this claim – do I just refer to the N244 (or attach a copy) and

ii.does the AQ get completed as a joint claimant submission (jointly signed)?

Help pleeese!

[kennyh]

Hi folks - I KNOW you're working your sox orft but could you PLEASE just devote a little time to the above since I'm typing the AQ this pm.

[zootscoot]

I would attach a copy of the N244 and sign jointly just to be sure.

[kennyh]

Thanks Zoot - most welcome

[kennyh]

Just a progress (or lack of note). AQ in on Monday (with copy of N244 attached - that having been filed first)(I can almost hear the sigh of relief from here Zoot). Opposition have not (yet) submitted and the Court Office says we cannot apply for judgement until the Judge examines the case (papers have gone to him/her). IF that is the case then we'll damn soon apply once we hear.