mcuth v Halifax (mortgage arrears)+*+*WON+*+*

[mcuth]

Sent a letter asking for a breakdown of all charges applied since inception (November 2004) - not done under Data Protection Act as I still have a decent relationship with them, just no statements. Will pursue under DPA if necessary....

Cheers

Michael

[Bookworm]

No stopping you now, is there?

[mcuth]

Originally Posted by Bookworm

No stopping you now, is there?

Nope, man on a mission, that's me

Cheers

Michael

[dolly]

I've done a Data Protection Act request for mine too - I *think* I only have 4 but as we settled the mortgage 2 years ago I have nothing to lose by asking. Still no response to my DPA, sent 8th June.

Will be following this

[mcuth]

Sent letter today, chasing list of charges & asking if they want a Data Protection Act Subject Access Request instead

Cheers

Michael

[mcuth]

Received a letter back from the Halifax that basically said "Refer to your annual mortgage statement - if you need copies of that, they'll be £15 each". Now, what use they think an annual statement is going to be, when the charges have been added after the last statement, I dunno

In any event, I went back through my paperwork, and luckily found the "quarterly shortfall statements" which handily detail the arrears charges quite nicely Do you really think it costs them £125 to "instruct solicitor"? (though I'm going to leave the "litigation costs" alone - they're probably about right)

Well, since I'm going to probably be selling this place in the next few months, I might hold off a little while....

Cheers

Michael

[mcuth]

Prelim letter sent today:

Thursday, 13th July, 2006

Halifax PLC
PO Box 548
Leeds
LS1 1WU

By Royal Mail Special Delivery

Dear Sir/Madam

Mortgage Roll Number X/XXXXXXXX-X

REQUEST FOR REFUND OF CHARGES

My request
I am writing to ask you to refund the charges which you have levied from my account since inception. I now understand that the regime of fees which you have applied to my account in relation to arrears, letters, telephone calls, and so forth are unlawful at Common Law, Statute and recent consumer regulations. If you say that they are not, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put by as a result of my breaches, in order to reassure me that your penalties really do reflect your costs.


I am of the view that your charges represent a penalty and are therefore unrecoverable at Common Law. In the Scottish case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498; the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract. This is also the position in English law: Wilson v Love [1896]; Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79; Ford Motor Co v Armstrong [1915]; Bridge v Campbell Discount Co. Ltd [1962]; Murray v Leisureplay [2004].

Your charges do not reflect any actual loss; instead they appear to represent a lucrative profit-making scheme. In
particular, charges were applied after I entered into transactions without sufficient funds in my account and also when I have gone overdrawn without authorisation. The actual loss is the cost of automatically sending me a computer generated letter. I would respectfully submit that is valued at no more than 50 pence.

UK banks have recently given evidence to the House of Commons Treasury Committee on how bank charges are
calculated: "The costs are going to pay for all the people we have who pursue debt, collect debt, speak to customers and chase payments. The way these charges are arrived at is by taking these total costs and making some assumptions about the volume that is going to come through to arrive at the individual charges" (2nd report, 25 January 2005, paragraph 50).

Accordingly, the charges applied to my account are not a reasonable pre-estimate of your loss in relation to my account. No-one has had to look at my account or telephone me. No one has had to collect anything. Your
charges would appear to represent a device to recover global losses (for example, loan defaulters, bad debt write off, including commercial lending in, and outwith, the UK).

On a separate note, your charges appear to represent an unfair term of contract which is contrary to the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). My account falls within the scope of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as I am a consumer. Your charges constitute an unfair
penalty under reference to paragraph 1(e) of schedule 2 of the said regulations:
‘Indicative and non-exhaustive list of terms which may be regarded as unfair - 1. Terms which have the
object of effect of - (e) requiring any consumer who fails his obligation to pay a disproportionately high
sum in compensation’.

0n 26 July 2005, the OFT stated that 'a charge is likely to be disproportionately high if it is more than a court would
be likely to award if the lender sued the cardholder for breach of contract'. Because your charges include a large
profit margin, in addition to actual loss, they are unrecoverable as an unfair term in contract. I believe that your
charges require me to pay a disproportionately high sum in compensation for incurring transactions which were
ultimately declined by an automated computer system. In addition, it is unfair to require me to subsidise your global debt recovery costs and debt write-off.

It has now been confirmed that your particularly high level of penalties are considered to be unfair per se by the OFT who reported on the 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.

Your responsibilities
I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary. I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them. Your concealment of the true nature of your charges has prevented me from asserting my right until now

What I require
I calculate that, as at today’s date, you have taken a nett total of £265.00 in these fees, plus charged interest on them at the standard rate of 6.50% - an amount of £8.10. This makes a total of £273.10. I request that you refund this amount in full and enclose a schedule of the charges which I am claiming with this letter.

Targets to resolve this matter
I hope that you will enter into a sincere dialogue with me about this matter and write on the assumption that you will prefer to do this rather than merely respond with standard letters and leaflets.

You have 10 working days, from receipt of this letter (i.e. by Friday 28th July 2006), to reply unconditionally accepting my request in principle and letting me know a date by which I will receive payment.

If you do not respond, or do not respond positively, within this time period, I shall send you a further letter before action allowing a further 10 working days in which to reflect. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.
After that will be no further communication from myself and I shall issue a claim at the expiry of the second deadline.

I look forward to hearing from you by return.

Yours faithfully,

{mcuth}

Cheers

Michael

[mcuth]

LBA sent today:

Dear Sir/Madam
Mortgage Roll Number X/XXXXXXXX-X
REQUEST FOR REFUND OF CHARGES – LETTER BEFORE ACTION

Further to my letter of 13th July 2006, I am again writing to ask you to refund the charges which you have levied from my account since inception. I now understand that the regime of “fees” which you have been applying to my account in relation to arrears, letters, telephone calls, and so forth are unlawful at Common Law, Statute and recent Consumer regulations. My letter of 13th July explains this in detail.

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

I calculate that, as at today’s date, you have taken a nett total of £273.10. I require repayment of this amount in full and have enclosed a schedule of the charges that I am reclaiming.

If you do not fully comply within 10 working days of receipt of this letter (i.e. by Monday 14th August, 2006), I shall begin a claim against you for the full amount (plus interest, plus my costs) without further notice.

I look forward to hearing from you by return.

Yours faithfully,

{mcuth}

Cheers

Michael

[zootscoot]

Hi McCuth,

I too am claiming against Halifax mortgages. I am slightly ahead of you Prelim sent 7.7 and lba 21.7. Due to commence claim this Fri. Haven't heard a dickie bird as yet.

Best of luck to you

Zoot

[mcuth]

Received the following today:

Dear {mcuth}

Thank you for your recent letter regarding your mortgage account.

I have passed your complaint to our Head Office Customer Relations Department.

Your concerns will be thoroghly investigated and a response issued to you in due course.

Yours sincerely

Mrs Gina Daley
Secured Collections

Well, they have until next Monday to issue something "in due course"

Cheers

Michael

[zootscoot]

Any updates?

[mcuth]

No updates - haven't followed up on this one because I became unemployed recently and may well need the Halifax on my side over these arrears. Am sure it'll keep for a rainy day in the future though

Cheers

Michael

[zootscoot]

Sorry to hear that, although plenty of time yet I think its 12 years with mortgages.

All the best

Zoot

[nigel1804]

Wow!!!!!!!!!!! are you saying that you can go back 12 years with a mortgage account or have I got mistaken sort of crosswired???????????

[dolly]

Originally Posted by nigel1804

Wow!!!!!!!!!!! are you saying that you can go back 12 years with a mortgage account or have I got mistaken sort of crosswired???????????

Yes you can claim back 12yrs for Mortgages.