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 DPA 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]

No stopping you now, is there?

 

Nope, man on a mission, that's me

 

Cheers

 

Michael

[dolly]

I've done a DPA 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 DPA SAR 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" :rolleyes:

 

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]

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.

[nigel1804]

OMG I'd been with the halifax from 1991-2004.I bet there's some charges inthere somewhere Is it the same procedure then as for your current account.Just sent my Data Protection Act off for my statements from them,best of it all I'm not with the halifax for my morgage.

[dolly]

Yes, exactly the same procedure - just adjust the letters as there is no overdraft charges obviously.

[zootscoot]

The relevant provision of the Limitation Act 1980 is as follows

 

s.20(1) No action shall be brought to recover -

 

(a) any principal sum of money secured by a mortgage or other charge on property (whether real or personal) .. after the expiration of twelve years from the date on which the right to receive the money accrued.

 

(5) Subject to subsections (6) and (7) below, no action to recover arrears of interest payable in respect of any sum of money secured by a mortgage or other charge or payable in respect of proceeds of the sale of the land, or to recover damages in respect of such arrears shall be brought after the expiration of six years from the date on which the interest became due.

 

It therefore seems ERCS must be brought within 6 years, whilst charges which are added to the principle sum can be claimed after 12 years... if I read this correctly.

[nigel1804]

Many thanks zootscoot.In doing this would I add this wording into brief details of claim or particulars of claim???????????if at all.This sort of wording just gives a shot across the bows on initial reading.many thanks.Any threads that have done this yet????????????

[zootscoot]

In doing this would I add this wording into brief details of claim or particulars of claim???????????

 

I would claim in the normal way and if they defend using the Limitation Act then respond to their defence accordingly.

 

Any threads that have done this yet????????????

 

Not that I'm aware of... but you could start one and give Mr Mcuth his thread back! Lol

 

Zoot

[nigel1804]

Sorry didn't mean to intrude but we all find something in all these threads.I have my own thread "my halifax charges"so please keep an eye on it with me.waiting for 3 court cases to be acknowledged.but i think it will be fast tracked so might take longer.So long as they can disclose there charges policy they should be ok .lololol.do you agree.

[mcuth]

Not that I'm aware of... but you could start one and give Mr Mcuth his thread back! Lol

 

Thanks - I was just going to say so meself after seeing all the action on a thread that's not really active....

 

Cheers

 

Michael

[mcuth]

Well the "due course" letter promised on 11th August turned up the other week (dated 8th September, so I think it turned up round about the 12th) - I've been slack in updating this thread I'm afraid

 

Dear {mcuth}

 

Thank you for contacting Halifax recently. Your complaint has been passed to Customer Relations for further investigation.

 

Please accept my apologies for the delay in addressing your concerns, which relate to the above noted mortgage account. Unfortunately, at this time, I am unable to confirm any proposals to resolve the concerns raised. However I anticipate that my investigation will be completed shortly when I will write to you again.

 

While I hope you will bear with us while our investigation is carried out, to comply with legislation, I would like to let you know that if you remain unhappy your concerns can be referred to the Financial Ombudsman Service. They can be contacted by telephone on 0845 080 1800, or by post at:

 

The Financial Ombudsman Service

South Quay Plaza

183 Marsh Wall

London

E14 9SR

 

email [email protected] (sic)

website Financial Ombudsman Service

 

You will find enclosed a leaflet providing full details of the Ombudsman service. If you wish to refer the matter to the Ombudsman you must do so within 6 months of the date of this letter.

 

Yours sincerely

 

David Keeney

Customer Relations Manager

Customer Relations

 

So, nothing really to note

As I mentioned above, I'm not pushing this one forward for the time being - we'll just see what happens with their "investigation"

 

Cheers

 

Michael

[mcuth]

Received a letter today, apologising for the delay in reply, but offering the full £265 to be credited directly to the mortgage account & backdated to the dates each charge was added (i.e. cancelling out interest charged on them). I'm accepting that, and although it took a while, I'm happy I've not had to push CC action

 

Cheers

 

Michael

[zootscoot]

Fantastic news!

 

Wow you didn't even have to issue a claim?! Thats excellent. I'm so pleased for you. I'll arrange for your title to be changed. Don't forget to fill out the survey.

 

All the best

 

Zoot