ERC - Prelim and LBA

[nathal]

Has anyone got an amended prelim and lba for reclaiming erc on a mortgage

[gizmo111]

Has anyone got an amended prelim and lba for reclaiming erc on a mortgage

 

Yes there is a very good one it is on zoots claim against halifax and a few others - I wil lsee if I can dig it out for you.

[gizmo111]

Here it is

 

Request for repayment of early redemption charge

 

Dear Sir/Madam

 

Account Number: xxxxxxxx

 

I am writing to request a refund of the early redemption charge of £xxxx which was debited to my account when I redeemed my mortgage 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,

[nathal]

Inthis prelim there is no mention of court costs and 8% claimable

[paulpb123]

But a good letter nonetheless? There's not much need to bother with the 8% and costs at the prelim stage in my view. They get that in the LBA which they ignore anyway. Only way to beat the mortgage companies is to issue a claim. Same principles as the banks but the m/cs just don't get it that ERCs are unlawful. You are simply going through a 28 day process that gets you to the point where you can issue your claim. Sometimes the banks just pay it back, but the mortgage cos don't. I suggest that you send the letter as it stands but add anything else that you think might be relevant to your circumstances. Good luck!