Abbey National Mortgage and how to value claim

[Andyorch]

Quote

Also Court fee : I've paid approx £34k , thats what i want back. If i want it back with 8% simple interest do i need to calculate that Number of days yes the court calculates up until judgment, maybe £80 K and also if i wanted  damages that would be £34k at 8% compound that could come to £120k? I'd imagine it would need an Actuary to calculate it.

 Compound Restitutionary Damages would have to be included in the amount fee and equated in the particulars but not the interest amount as that is at the discretion of the court.

[marylikes]

@Andyorch  Thanks Andy, i'm even more confused now though. Just to keep the maths simple, if i want to claim back the £34k i paid, i need to work out year by year and add 8% simple interest.? I'm not following the rest of it though for restitution. I'm just totally confused as to what amount i actually ask for ?

[marylikes]

I think they are being pretty disingenuous, when i asked them for a statement of account it was vague. It just said your mortgage started in 1989, you have paid x amount capital and x amount interest , that equated to roughly £34K. What i now can roughly work out is that is only since 1993. I paid £6k during 89/90/91/92 . So the total i have paid so far is actually around £40k plus .

 

Ok, let me try this... I'm not asking for the merits or otherwise of my claim, i'm happy to sort that out myself. I actually need to value it. I'm not going to get complicated with restitutionary interest etc. I'll keep it simple. Tell me if i got my formula correct:

 

If i paid £1k in 1989, then 8% of that is £80. End of 1989 until end of 2022 is 32 years, so £80 x 32 =£2560.

If i paid £1k in 1990, then 8% of that is £80. End of 1990 until end of 2022 is 31 years, so £80 x 32 =£2480.

 

Rinse and repeat. But for them two years i'm claiming £2k plus interest of £5040 = £7040 .

Thats how i work it out on a simple interest basis ?

 

I've also got a standard notification today of my new monthly payment amount due to the interest rate change. Must be automated as i've paid them nothing.

 

They've not answer one pre claim letter from me, they've still not asked me for a penny, not so much as a £35 late charge. And i know they will litigate at the drop of a hat. Is it possible for them to sit on their hands and do nothing at all and just wait for me ?

[dx100uk]

statutory 8% int can be calculated using the statint sheet

you input your claim figure as a bulk sum (say £34k) on the date you raise the claim, then you quote the daily £/pence that increments@8% per day until judgement

 

so it will look like

 

together with statutory interest of £xx.xxp pursuant to s69 of the County Courts Act 1984 at 8% per annum, continuing daily at £xx.xxp per day until judgement

 

 

[Andyorch]

Section 69 interest @ 8% is not included in any claim total but stated within the particulars of claim and requested on the net amount claimed.

Therefore it has no affect on the fee for the net amount claimed (capital only)

 

Once you opt for interest on MCOL it will automatically calculate from the date you state in your particular's (start) up until the day of judgment the amount is then added tot he judgment amount.

[marylikes]

Thanks both of you. That spread sheet has been brilliant for me. I just tweaked it a bit, and i entered in the annual payments i made for each year. There is six years i don't have statements for so i estimated them, in their favour at £1k per year. Sure enough it comes out at £40,200 i've paid, and the interest repayable at 8% simple comes to £59,400 , so a grand total of about £99,500  if it went in my favour.

 

This will go to fast track and be a bit out of my depth i think, so i'm going to draft up a loose pre claim, fire it off and whilst doing that i'm now going to make enquiries to get someone to represent me in Court.

[marylikes]

Hi, i'm looking for some advice please.

 I'm going to fill in a N1 Claim form. I have to use "The Consumer Credit Act procedure" as per CPR 49.C

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part49/practice-direction-49c-consumer-credit-act-2006-unfair-relationships

 

I'm ok with the particulars of claim, they'll pretty much be the same as my pre claim.

 

What i want to know is in the section (on the N1 form)   "Brief Details of Claim" , would something like this suffice:

 

 "This is a Consumer credit act claim using the CPR 49.c rules relating to:

[1] section 65(1) (improperly executed agreement)

[2] section 140B(2)(a) (debtor’s or surety’s application for an order relating to an unfair relationship)

 

Then the next space down says:   "Value":  so i can say..........

I am asking the Court to order:

[i] A dismisal of any outstanding amount on the agreement, estimated to be approx. £600

[ii] A removal of any charge on my property [adress..... blah blah]

[iii] A refund of all monies paid under the agreement........ £40,200

[iiii] Closure and an end to the agreement.

 

 

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

 

Then in the box where it says "Amount claimed" do i enter  £40,200   , or do i need to enter the £600 too, so it reads £40,800   ?

 

Also i see no where to enter a LIP's costs........ do i do this at a later stage ?

[Andyorch]

Particulars are a bit sparse perhaps a further para relating to why you are quoting the relevant legislation. Costs are later in the process.

[marylikes]

Here is my S77A complaint decision:

 

https://www.financial-ombudsman.org.uk/decision/DRN-4018247.pdf

 

My S77(1) complaint does not appear to be published and it was found a week earlier.

 

Independant Assesor has awarded me £50.

 

LBA in envelope about to go to post office this morning.

 

[marylikes]

Posted LBA on Monday morning like i said, 1st Class signed for. Still not delivered as of time of posting here. I have tracking number to check it.

  Looks like i'll have to replicate it all tomorrow and send off again on Monday morning. Just hope nothing crosses over and they end up getting two with different dates.

[marylikes]

Having a right nightmare with sending a LBA. Sent one 15th May, still not delivered, complaint into Royal Mail over that. Got advised to give it ten working days. Sent another two off on the 30th May, to Santander @ Milton Keynes and Santander @ Bridle Road, Bootle . Still nothing. Not a one of them delivered.

I'm going to have to contact them , see if they have recieved them and if not i suppose the best thing to do is hand letter into my local branch.

Feel a right idiot sending so many LBA's, and now potentially having to send another one. Nuts!!...........

[marylikes]

Just an update.

My 1st letter of claim was received in May, and responded to, although i didn't receive it they let me know by email they had.

I had the head of Legal Dept contact me.

He told me "parties to potential litigation have 3 months to respond under CPR rules" ........., although he would hope to be in a position to respond much sooner.

Its been two months now i've had no response so far .

In the meantime Mortgage Prisoner Group have been in to discuss my case (i don't yet know the outcome) .

I've also had a letter asking me for a payment and threatening a £40 late fee, and a potential Field visit for about £185.

I asked them what they are playing at, it was them that wanted more time, not me.

They, as i'm used to now do not acknowledge much correspondence but i've no further demand for payment and no mention of late fees and no more demand for payment. In fact i've only ever had one letter asking for a payment, i must owe three months by now.

Next month should see an offer to settle my claim, or i'll be off to Court.

How you going on @figuriti99   ?

[marylikes]

Hi again, not long to go for me now and it very much looks like they are going to force me to put my money where my mouth is. I've sorted out my "brief particulars of claim", i'm aware of what i need to include in my pleadings, or particulars of claim. So on that score i'm quite happy i know what i'm doing.

 The situation remains the same for me as regards i still have no response to any letter, email , nor the phone calls i have made, and they have all my contact details and i have asked them to get in touch. They havn't. I've now confirmed a date to them of the 20th August as the date i will file to Court. So there is no abiguity over how many days or working days etc... this has probably gone on far to long already. So thats where i am at.

 So, i still have a question. Its not an easy one. I have been able to value my claim, and my claim is a refund of everything i've paid under the agreement..... the nearest correct figure i now can make it is £41,800 approx.

 Now to give that figure some perspective: i borrowed £13,250 which was 95% of the purchase price of my home, which was £13,950 in 1989. Its a small modest terraced house, its value now is £100K. £41K is 3 x the amount i borrowed.

 Obviously if my claim fails then i get nothing. If my claim suceeds i guess i need to have plead what i want? So, so far it is the £42k i paid. I worked out in a very simple fashion that if i was repaid each years repayments, on a yearly basis at 8% simple interest basis then it equates to somewhere around £102k . That is in keeping with the value of my home at present. How that figure would change if it was calculated from date of each payment, then i'm not sure.

  Also should i consider that interest could be repayable at 8% compound interest from date of each payment ? Thats obviously going to be much higher again.

 Or could i do it a simpler way? I borrowed 95% the value of my home and was made to pay back x3. That value now stands at £100k x3 = £300k ?

   I realise that calculating restitution is difficult. I did point out to my lender that they should appoint an Actuary at their expense to correctly calculate the compensation needed to restitute to me the £42K i paid them over 34 years.

    Does anyone have any thoughts of how i should go about this ? I followed the link for Restitutionary damages and it leads to a dead link. I've googled it and its a minefield .

  Thanks all.

 

[marylikes]

Hi again. I've managed to work out restitutionary damages myself, so i think i'm ok on that score. Reason for my post now is i have just recieved my lenders response to my claim (yes, at this hour of night).

 I'll not go over it all as i still need to digest it, but in brief i have this snippet :

"Improperly executed credit agreement
You believe that the Mortgage is regulated by the CCA and that Santander UK has acted in breach of
the CCA in the manner in which it has administered the Mortgage.
The Mortgage was CCA regulated when it was taken out in January 1989. The Mortgage is no longer
CCA regulated.
You allege that the Mortgage agreement is an improperly executed agreement. However, you make
no attempt to explain why you believe that to be the case. It follows that Santander UK is unable to
respond to this allegation with anything other than a bare rebuttal. Santander UK disputes that the
Mortgage agreement was improperly executed in accordance with the CCA"

 

Of course it should go without saying that my S77 request had it been complied with would of dismissed my allegations. I actually did tell them in my claim why i believed it to be the case:

"The legal basis for my claim is as follows:
(i) The Consumer Credit Act 1974 laid out the requirements and regulations for our agreement .
None was ever complied with. And most importantly for me I was denied any knowledge of my
rights or remedies. Our agreement which began 23 rd January 1989 is in short an improperly
executed agreement."

 

I'll mull over the rest of it.
 

[dx100uk]

and did they ever inform you and at what point that it became unregulated...urm... someone is a bit unsettled by your claim me thinks...they are fishing to see what you know....

 

dx

 

[marylikes]

Just mulling over some more of it :

Quote

Whilst prior to the Letter of Claim, you have made further allegations surrounding CCA non-compliance
(specifically in relation to the composition of annual mortgage statements and Santander UK’s response
to Section 77 requests) as these allegations are not covered within the Letter of Claim, we assume that
Santander UK has now responded to such points to your satisfaction. For the avoidance of doubt,
however, all such allegations are denied.
As stated above, the Mortgage is no longer CCA regulated. Santander UK is not required to comply
with the CCA in the manner in which it administers the Mortgage.

I've literally took my complaints about this to the FOS, who declined them as they said my agreement was NOT a regulated agreement. Its obvious to me they will try to methodically pick through each separate CCA breach and counter them on each point, or rather pick me up for not pleading the specific breach.

I think they may have inadvertently made my claim actually easier, but i would like to run it by the collective here first for any thoughts.

Initially i was minded to list out and plead each individual breach, i.e :

 Failure to comply with S61 (CCA), failure to comply with S60(CCA) and so on and so forth.

In actual fact, its like i said in my claim, they have complied with nothing, zilch. They have treated my loan from the get go as an unregulated loan. So it may be easier for me to plead a "complete failure to comply with any aspect of the CCA" , would that work ?

  They have not addressed my S140 Unfair Relationship claim either, as them pleadings just lead to it anyway.

[Andyorch]

Not sure if you have read the following 2.10 onwards.

 

Quote

Mortgage lending is no longer regulated by the Consumer Credit Act (CCA) 1974. Agreements that were CCA regulated at the point of execution retain some of the provisions of the Act.22 Mar 2021

https://www.fca.org.uk/publication/corporate/review-of-retained-provisions-of-the-consumer-credit-act-final-report.pdf

[marylikes]

Hi @Andyorch , yes i have thanks.

Mortgage lending has been regulated by the Mortgage Credit Directive and others since about October 2004 . However, thats not retrospective, and all the protections and provisions still apply to the agreement. These old agreements are known and defined by the FCA as "legacy cca" mortgages.

 Some stuff by virtue of new legislation just no longer applies moving foreword. For example, if i was to alter my mortgage in some way, maybe get a small top up or whatever then S82 CCA, would no longer be applicable, as it would be an agreement that is secured on land, and that is a Regulated Mortgage Contract, that also brings about affordability tests etc.. Non of this  previously applied to Consumer Credit Agreements. But will do now if such an adjustment is made.

 Specifically it is the "lending" that is no longer a Consumer Credit activity. Also the Regulated Activities Order makes it possible for any firms "administering" these CCA mortgages to administer them with the same permissions for Regulated Mortgages so they do not have to be specifically Consumer Credit licensed. Effectively bringing everything under the one umbrella.

 The need to be able to hold a properly executed agreement etc.. still holds good. Which is why they are strenuously denying holding an improperly executed agreement, despite never producing one, and originally telling me my agreement had never been a Consumer Credit agreement.

 They have taken issue with me not pleading S77/S77A fails in my original claim,  i guess they will try to get me dismissed if i raise it as an issue. Despite the fact i've been through their complaints procedure, FOS and told them its an issue in later correspondence.

 I'll probably stick with the "non was ever complied with" (CCA), that should cover the lot? It would seem a waste of time to point out failings in the Credit Agreement Regulations for example, when we do not have an actual credit agreement.

 In the 34 years worth of paperwork i hold, the Consumer Credit Act is mentioned once. And that is in my completion letter which says......."you are now due to make a payment of £29 to cover interest for the rest of the year in order for us to quote an exact term as per the consumer credit act" .

 In actual fact it was the Consumer Credit (Quotations) Act that required it. Never the less, there is not one single thing they have done ever to comply with Consumer Credit Act, in any shape or form.

 I'm probably in for a right ride !!

Sorry to ramble on.... think i've managed to digest this now and look at it with a cooler head. I'll stick to my Letter of Claim, and not go off on a tangent about S77/S77A etc... I can cover that in my witness statement. As the Court, in the case of an Unfair Relationship Claim, will have regard to all matters. So i aint gonna bother putting that in my pleadings.

I think logically where they have denied having an improperly executed agreement i will focus on that. They say i have made no attempt to explain why that may be the case, i say different. And besides i sent them further letter to say if there was anything they where unsure about or did not understand about my claim then please contact me and i will be willing to help, and left every contact detail i have.

 The case is we don't have any agreement, neither an original nor a modified one.

 I've got this !!!

[Andyorch]

2 hours ago, marylikes said:

The case is we don't have any agreement, neither an original nor a modyfied one.

And as the agreement was modified from a Regulated to unregulated they cant use a reconstituted version for either.

[marylikes]

It will be a brave brief that would stand in a Court and tell them a Regulated agreement is now changed to an unregulated one. Its complete nonsense. Its not possible. If that was the case, any unscrupulous lender could say any regulated agreement is now unregulated. Consumer protection laws specifically prevent this. S173 CCA .

 This is a firm, that has for the last two years told me "mortgages are not credit agreements", "we do not hold an agreement as its not a Consumer Credit Agreement" . I have all this in black and white from them. So this sudden change of tack is, as they say, suprising.

I wonder if someone can help me out here. Here is the following from my letter of response:

Quote

Please treat this as Santander UK plc (Santander UK)’s Letter of Response, sent in accordance with
paragraph 6(d) of the CPR protocol on pre-action conduct (Protocol).

I can't find a para 6(d), am i doing something wrong ?

Also as i look at the CPR i can see that para 6 (c) says the following :

Quote

the parties disclosing key documents relevant to the issues in dispute.

Santander has rebutted the claim we have an improperly executed agreement, but have not provided the agreement. Am i within my rights to request this agreement they intend to rely on under para 6 (c) ?

[BazzaS]

You can request a SAR (for “all documents” relating personally to you) leaving aside the prospect of the claim.

Once into the claims process disclosure (and the degree to which it happens) is determined by the court, and would usually be dealt with at the “directions” stage once the case has been “allocated” to a “track” : This is because the disclosure process is different in the small claims track.

 

CPR 31 deals with disclosure.

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31#31.10

“standard disclosure” is likely to apply, except for in the small claims track (where the majority of CPR31 doesn’t apply, as stated in CPR 31.1(2) )

Edited August 16, 2023 by BazzaS