Ukaviator Vs Birmingham Midshires **Settled**

[ukaviator]

Hi Team.

I have been researching and reading threads on here for some time. I have approached the customer relations team for my ERC from Birmingham Midshires.

9/8/06 Letter sent to ask for the ERC back.

6/9/06 LBA sent to Birmingham Midshires.

ERC is for £4813.27

Will update on here as it happens.

Good Hunting Ukaviator

[dolly]

Great stuff - just sent my LBA today for mine

[ukaviator]

Hi Team.

Had a reply back from Birmingham Midshires. Here is what it says:

Further to your letter received by Birmingham Midshires on 8th Sept 2006, I'm sorry to hear that you remain unhappy.Our understanding of the complaint is:

You believe that the Early Repayment Charges and the assessment Fee applied to your account are Unlawful at Common Law, Statute and recent consumer regulations.As a result of this, you would like the charges totalling £4848.27 which have been Unlawfully been levied on your account refunded back to you.

Having considered the comments made in your letter, we have reviewed your case inline with the next step of our internal complaints procedure.

Following my investigation into your complaint, i can only agree with the findings issued to you in our previous letter. A copy of which is enclosed for your ease of reference. The letter itself, and the documentary evidence provided, makes it clear that any Early Repayment Charges paid were both lawful and justified.

I would like to point out that neither imposing Early Repayment Charges on your account or early redemption of the account constitutes a breach of contract on either your part or ours.

The mortgage conditions under which your mortgage was set up confirm that a customer is entitled to repay their loan,either partially or in its entirety, at any time. Section 7.1 of the mortgage conditions 2000, states that ' The borrower may repay all or any part of the mortgage debt at ant time before the end of the repayment period'. Thereafter Section 7.2 states ' The borrower must pay an Early Redemption Fee which the offer letter requires the borrower to pay on any early repayment and the reasonable costs and expenses of the lender in connection with the early repayment'.

Furthermore, there is a right in Equity To Redeem which allows customers to redeem a debt at a time which pre-dates the contractual redemption date. It would be Unlawful for us to exclude the right to redeem, as known by the rule that there should be no 'Clogs on the right of Redemption'

Consequently, you have not breached the contract by redeeming your account early,but simply exercised your right in 'Equity To Redeem'. I can only suggest that you seek indendant legal advice if you wish to pursue this matter further.Based upon this information i'm unable to uphold your complaint.

This letter outlines our final conclusion on your complaint. It's known as a final response because we've come to the end of our internal complaint procedure.

However, it may be a matter the Financial Ombudsman Service will review.

They then put the address for that useless lot..

Equity to redeem?.. anyone heard of that one?

Also still refuse to put down all the fees i requested. Still hiding the true costs. Looks like Moneyclaim then.

Comments please. Ukaviator..

[paddym]

think thats one for zootscoop our resident ERC expert to look over and advise you if anyone will know the full explanation of this letter and the terminology used i have to say it will be her !

[ukaviator]

Hi Team.

 

Yep i agree. Zoot is brilliant. I have'nt seen this terminology before. 'EQUITY TO REDEEM'.. They still are guilty as charged. Will wait for the comments to make my next move..

 

Good Hunting Ukaviator

[mickey_0]

Hi folks, I think you're right in saying that maybe zootscoot could have a look at this for you, but just wanted to bring your attention to this little snippet from the OFT in the hope that it may help a little.

 

"A term in a mortgage agreement which requires the borrower to pay more for breaching the contract terms 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 both at common law and (in a consumer mortgage) under the Unfair Terms in Consumer Contracts Regulations. A redemption charge may be regarded as a penalty even if it is expressed as the price for exercising a right rather than a consequence of breaking the agreement."

 

Good luck with it all, am just about to send my prelim to gmac so am watching this forum closely!!!

[zootscoot]

Hi Uk aviator,

 

Don't worry there's nothing to fear in this letter.

 

The equitable right of redemption stems from G & C Kreglinger -v- The New Patagonian Meat and Cold Storage Company [1914] AC 25 in response to oppressive mortgages operating at the time which levied heavy interest with no ability to get out before the agreed time period. It is not an absolute rule and in particular has little effect in commercial mortgages in Knightsbridge Estates v Byrne [1939] Ch 441 where a tie in of 40 yrs was upheld. The court has a discretion as to whether to invalidate a term on the grounds that it is a clog on the equity of redemption and there is little consistency in this area.

 

Birmingham Midshires have not stopped you from redeeming and in fact you have redeemed, but in exercising your right in equity to redeem you are also in breach of an express term of the contract ie that you would repay over XX amount of years.

 

With regards to s.7.1 and s.7.2 when read together are simply clauses providing what will happen in the eventuality that you do breach your contract and as such unless they are a genuine pre-estimate of the loss they are penalty clauses.

 

You could in fact turn their argument around and say that imposing the ERC amounts to a clog on your equitable right to redeem. Although chances of success on this grounds alone would be ifffy.

 

Hope this helps

 

Zoot

[ukaviator]

Hi Team.

 

Thank you Zoot. As always full of information. You are good. I am just about to go to the Moneyclaim site and have a read. Hopefully another ERC paid out soon.

 

Regards Ukaviator

[ukaviator]

Hi Team.

 

I have this morning before 10am,called Birmingham Midshires,and told them that my finger was on the mouse button,just hovering over the submit button on the Moneyclaim website.They still want to go along with their final decision, so a Moneyclaim was filed this morning for £5284.67... This includes the fee and interest to date.Watch this space.

 

Go get em

 

Ukaviator

[Les Gunn]

Good Luck Ukaviator!

 

I'm sure you'll come up trumps!

[lickthewallfatboy]

all the very best to BM ERC hunters in particular,and all ERC hunters in general....

 

BM still haven't filed a defence,and fingers crossed they don't by close of business Friday, as sunday is the cut off point when I get judgement by default.

[ukaviator]

Hi Team

 

Had an Acknowledgement put on the Moneyclaim file yesterday.

Just have to wait now to see their next move.

 

Ukaviator

[ukaviator]

Hi Team

 

Just a quick update. Birmingham Midshires say they are going to defend.

 

Ukaviator

[ukaviator]

Hello all..

 

Just sitting here in sunny Florida and thought i had better check to see how my claim was going.And guess what?...They have filed a defence...just like the others..oh well, will wait until Friday when i'm back to see if there is any mail.

 

 

Ukaviator

[lickthewallfatboy]

Florida eh?hope BM go all the way with you!!! LOL

 

seriously,though,they'll roll over,and your holiday will be paid for when you get back!!

 

Florida for free-you jammy git!!

[zootscoot]

Thought you'd gone quiet for a while!

 

Enjoy your holiday and we'll all wait in eager anticipation for what they have put in their defence.

[ukaviator]

Hi Team.

 

Yes i am enjoying a well earned break. Its hot here, 89 degrees but humid.Should get Thunder storms tonight. Been doing a lot of Flying and Diving.

Any way, should have a letter waiting when i get back. I'm ready for action. Will keep an eye on here now i have full access internet here in Pompano Beach. Sitting at the Tikki Bar and Babes all around is...well....paradise.

 

Have a good evening team

 

Ukaviator

[paulpb123]

Hmmm, sounds a bit better than 'murder mile' in Hackney on a grey afternoon!

[Lizzy]

I too am after a ERC from Birmingham Midshires. I have had a fob off letter with loads of back up forms they sent me. Only proof that we signed the documents and at the time agreed to the ERC. They gave figures of how the penalty had been worked out but not proved any actual losses to themselves. So have sent my LBA and have received a reply back saying my complaint has progressed to step 2 of their internal complaints procedure.

I have found this thread very interesting as you are a little ahead of me. Can't wait for the outcome.........BM paid out on mortgage charges on a prelim letter, they are being much more difficult on this. I wonder why, perhaps they do actually think they are right.

 

Good luck Ukaviator and all ERC claimants.........go for it guys and girls

 

Lizzy

[ukaviator]

Hello Team

 

Well what a trip back..24 hours travelling and no fat cheque..

Have the defence they put in saying the usual,We don't think our charges are disproportionate etc..

 

Then further down the junk mail pile a letter saying due to commercial reasons they would offer 'Half ' of my claim.

 

I have just given them a call as the letter was from the 13th Oct,and spoke to their solicitor. A few threats that it will be in fast track etc..you will have to pay our court costs if you lose. I said that we could talk more if you are willing to pay the full amount due. He said he will go to the business and see what their reaction will be.The media frenzy on the court day will probably use up all the parking spaces.

 

He kept informing me that if i fail to recover more than the amount they have offered at the final court hearing,the court can order that i pay their costs incurred in defending my claim, including costs of legal representation.

 

Just have to wait for a phone call soon. Meanwhile i will start filling in the AQ..

 

UK.....

[lickthewallfatboy]

ooooooohhhh

big boys wanna play hardball eh?Load of crap about paying their expenses of course.

Just adopting the well tried and disgraced techniques from the BIG BAD BANKERS BIG BOOK OF BULL$HIT AND BLUSTER

 

got get em flyboy

[ukaviator]

Hi LTW..

 

The defence is the usual, ' You signed an agreement ' stuff. They cannot justify that charge, so i'm sure they will pay up eventually.

 

Ukaviator

[blackrain]

Entering my moneyclaim against them on Friday. Good luck with yours.

[Lizzy]

Can I ask what you put in the Particulars Of The Claim on the MCOL form please?

 

I have just received the usual fob off letter from internal complaints level 2. Saying our first letter stands. It was the same as yours Ukaviator except it had an extra little paragraph saying .

 

With regards to your request for a breakdown in our costs and losses for these penalty charges we confirm that this is commercially sensitive information. Conseqently, we are not obliged to divulge this information to you however, we apologise for any inconvenience this may cause.

 

They have obviously understood the question then. Are they allowed not to answer it as it will be the major part of my claim ?

[ukaviator]

Hi Lizzy

 

 

Here is the wording i used and was accepted.

 

Claimant had a mortgage account 123456789

with the Defendant opened on 14/1/2003

conducted on their standard terms and

conditions.Claimant is claiming the return

of £0000s taken by Defendant in the form

of an Early Repayment charge and late

payment fee.The Defendant's charges are a

disproportionate penalty and therefore

unenforceable as they are contrary to

common law.They are also invalid under the

Unfair Contracts Terms Act 1977 s.4 and

under the Unfair Terms in Consumer

Contracts Regulations 1999.Para.8 and

sch.2.1.e.In the event that the charges are

not a penalty they are unreasonable within

the meaning of the Supply of Goods and

Services Act 1982 s.15.Defendant has

declined justification of charges despite

repeated requests.The claimant claims

interest under section 69 of the County

Courts Act 1984 at the rate of 8% a year

from ........ to ......... of

£000s ,and also interest at the same rate

up to the date of judgment of £000 a day.

 

Also the defence is so flimsy. The solicitor has asked the company to get back to him with an answer whether to carry on or not. I am of the impression he knows he can't win. Should have some news tomorrow.So still in talks at the moment. My AQ and court bundle is all ready.

 

Hope this helps

 

Uk..