long winded story but here goes.

In 2008 HSBC started proceedings to repossess my home due to arrears.

At that point the oft case was underway but not completed and i had stated that the balance owing was inflated due to bank charges. (We were forced to take out a further loan in 2004 to pay an overdraft which consisted mostly of charges (£x,000's)

Also in 2004 but prior to the above my wife became ill and we attempted to claim on the mortgage protection but they said my wife was not on the policy. 12 Months later i had reason to make a complaint to the bank over another matter and happened to mention this, we were then told that my wife was on the policy and that we would have to make a retrospective claim which we did, and after 12 more months of "your fault not ours" from the bank we were sent a document from the underwriters which basically proved that it was an error due to the bank. The bank then accepted full responsibility and paid out.

During this 12 months we were charged over£1,200 in charges. these were refunded and we were offered £100 (1/12th of the amount we were charged) which i refused saying that if this error was "worth" £1,200 when they thought it was due to my error then it should also be "worth" £1,200 now that they know it is their error. After all if we go overdrawn we have to pay the money back plus charges, the bank are saying all they have to do is pay the money back but they would also give £100 as a goodwill gesture.

Back to current day, I have written to the court stating that under directive 93/13 they have a duty to test these charges for fairness. I have stated that the charges are unfair due to schedule 2 terms which have the OBJECT or EFFECT of:-

Part D - “permitting the seller or supplier to retain sums paid by the consumer where the latter decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the seller or supplier where the latter is the party cancelling the contract;”.

(Basically if A can charge B should an event occur then B should be able to charge A the same amount if the roles are reversed)

I now need help in encouraging the court to perform this duty.

Although the property was sold for more than the balance owed, the bank are claiming that the court costs have created a mortgage shortfall.

Can anyone help????

no ideas anyone ????

am i barking up the wrong tree

or just totally barking lol

Just trying to get my head round this rdm.

You took out a loan to pay off an overdraft which was made up almost entirely of charges, and I suppose interest. If you hadn't had the charges you wouldn't have needed the loan. Is that unfair? I'm sure we had some argument at one point about this.

Later the bank refused to pay PPI so you incurred more charges. Was this on a bank account or your mortgage? The bank subsequently admitted they should have paid out on the PPI claim, but wouldn't reimburse the charges incurred as a result of their original non-payment. There was no restitution and as a consequence you went on to lose the house.

Now you're being asked to pay a shortfall made up of charges and the banks legal costs, despite the original mortgage being covered by the sale of the house.

Are your arguments to do with bank charges, mortgage charges, or both?

I'm afraid you've long me on your legal points.

Hi Caro thanks so much for adding something.

Mid 2004 They failed to pay out on a Mortgage Protection policy (MPP) stating that my wife was not on the policy. Under this policy we would pay the mortgage and this would be refunded to our bank accounts but, due to their claim that my wife was not on the policy, this didnt happen.

We struggled to pay anything other than the mortgage due to low income (wife off ill remember) and our accounts just kept getting more and more charges until late 2004 when we were summoned to the bank and basically forced to take out a remortgage paying off the overdraft and consolidating other debt (car loan credit cards etc, which we had been unable to pay as all our money was paying the mortgage).

Then in 2005 it came to light that my wife was on the policy and we had to make a retrospective claim and after months and months of the bank saying "not our fault" we wrote to the underwriters asking why changes had been made to our policy and by whom (another long story I wont go into now) and they sent a letter (on HSBC Headed paper) confirming that the bank had made the changes. At this point the bank had no alternative but to pay up.

During this period of non payment we had racked up over £1200 worth of charges (d/d refusals and unauthorised overdrafts) so I then wrote to the bank stating that had they paid this MPP at the correct time then each mortgage payment would have been refunded to my current account and no charges would have been incurred. The bank recalculated my statements and found this to be true and had to refund these charges. Even when they knew these charges may be wrong they continued to make more charges.

The total amount that they had to pay including the overdraft charges (that were not overdraft charges because it would not have happened) was over £7000.00. The bank also offered £100 in compensation for these errors. (stating that i was only inconvenienced - cheekey beggars)

I wrote to them refusing this £100 stating that whilst the bank had believed that our account had gone overdrawn and unauthorised borrowing had taken place due to our error they raised charges of £1200, but now that it has been discovered to be their error they offer only £100.

If I owe the bank money the T & C's state that i not only have to pay the money back but also charges, however, now that they owed me money, (the return of the mortgage payments plus monies they took from me claiming they were charges. Is this unauthorised borrowing from me!). The T & C's have no provision for me to charge the bank for thier unauthorised borrowing.

does any of that make sense ???

Edit - Also, had they paid this MPP at the correct time, would I have needed to borrow as much (or at all) when I had to remortgage, and, should I have to pay interest on the part that I did not need to borrow???

e.g. had they paid the MPP at the correct time i would have been able to pay my car loan and cards therefore reducing the balance, so if i did need to consolidate the balance would have been less.

What are the POC?

Did you ever read about Spicey charging HSBC? http://www.consumeractiongroup.co.uk/forum/showthread.php?27632-The-Phoenix-v-HSBC&p=2662093&viewfull=1#post2662093

I don't know if it will be of any help but could be worth a read.

POC of my counter claim - now this is where things get complicated - I sent everything off to a solicitor over 18 months ago and the solicitor is still considering if they will take the case or not, unfortunately I can not remember what the original POC's were and chances are they will now need to be amended which I will need help with (I am useless with this legal speal- as you may have noticed).

So far the judges have been quite understanding with me being an LIP, I am in no doubt that I have not always set things out as I should but have been able to articulate the points I have been making in court.

I do remember tho that in my counter claim I did state that I disputed the amount which the bank claimed that I owed.

What I would like to do, is raise issues with the following.

1. In a cpr request I asked for letters between myself and Mr A, Mr B and Mr C at the bank. The banks solicitors then claimed (in a statement of truth) that these letters were uneconomical to reproduce, already in my control (???) and that the content was irrelevant to the case.

I would like to know

A, If these letters could not be reproduced then how do they know that the content is irrelevant??

B, How were they later supplied under a DPA SAR request??

C, This so called statement of truth is clearly not true, should I be expected to pay this cost.

2. When the repossession was raised there was more than enough equity in the property to pay off the mortgage to the bank, a second charge owed to EPF (a subsidiary company of HSBC) and still have monies left over, however, as the bank added court costs to this mortgage prior to its completion of sale, that then made a shortfall - HSBC and its subsidiary EPF then took months debating who was going to show the shortfall that it had itself created. This got so bad that the housing association buying the property under the Mortgage Rescue Scheme pulled out. They later reversed this. Should I have to pay the interest incurred whilst the bank debated with itself.

3. The bank has been found to be involved in the "Rate Fixing" scandal what effect has this had on the mortgage? If this has resulted in a higher interest rate, should I have to pay this increased interest?

4. Should I have to pay interest on the increased amount borrowed due to the non payment of the Mortgage Protection Policy??

5. Under Directive 93/13 the court has a duty to test the un/fairness of the charges raised on a linked current account - If these are found to be unfair then this again may mean that I had borrowed more than needed and again should I have to pay the increased interest.

Case conference is on monday so i will let you know what happens

Well court recognises that it has a duty to protect the consumer from unfair terms and conditions.

They were not happy that HSBC thought that everything was over, or that they have put in a statement of truth that info requested by me under CPR was not cost effective to reproduce but has then supplied this info under a SAR (oops).

I now have to produce a statement listing my concerns (didnt use that word - but cant remember what word she used), what effect that this has had on the shortfall that HSBC is claiming and how I have calculated this.

At least it is a step in the right direction.

Hello there.

You have requested a thread move to the debt collection forum, which I've done for you.

My best, HB

Sounds encouraging rdm. Have you got any time scales for your statement or a hearing?

Hi Caro 4 weeks to do statement and hearing around 10th december

Hmm. That gives HSBC plenty of time to consider your statement. Any idea how long the hearing will be?

Although you obviously need to get all the info in, try to make sure your statement isn't too long. Judges are busy people and some won't bother reading the info if there's too much, so try and keep it succinct.

the hearing is half an hour

Keep us posted and holler if we can help.

What sort of things can i claim for???

eg all the agro we went through caused me to go off ill with depression which then led to the loss of my job.

so can i claim damages for both the loss of employment and depression or just the depression

What did you put in your defence and counterclaim? I guess you should be seeking restitution.

You could calculate what you lost in monetary terms, but it seems to me that you can't really claim for things that you haven't already mentioned. I could be wrong.

You could include your costs including time spent, and include any receipts you may have. I think the rate a litigant in person can claim is £18.50 per hour, but you should itemise this as well as you can to prove what you are claiming is reasonable.

What track is this?

Do you know if the hearing will be with the same judge?

A concern that I have is costs, because although the judge considers that there is a case worth hearing, that does not guarantee success. Should you lose, and be liable for HSBC's costs you could be worse off.

Of course the choice is yours, but I wonder if it might be worth you trying to negotiate a settlement before the hearing, making it clear that you have a strong case, but don't want to waste further court time and resources.

Hi Caro,

With regard to costs. the test of fairness of the terms (which allow the bank to raise charges) should be raised of the courts own motion. Can the bank claim costs from me for a motion that I have not raised ??

It is a repossession case so it is not a small claims track but a solicitor is considering the case and they have all of the paperwork now, but until they decide I am having to deal with this myself.

You could calculate what you lost in monetary terms, but it seems to me that you can't really claim for things that you haven't already mentioned. I could be wrong.

Can BF or someone in the know find this out as I would like to include things for eg

distress caused by falsely claiming that documents requested under CPR were uneconomical to reproduce which were later reproduced under a SAR request (I did ask the judge if it was fair for me to be forced to pay for this as it is already in the banks costs)

Also that they have been harassing us for payment for this shortfall (even threatening to take me to court) which I did mention at the conference can I claim distress for this

As these have emerged during the process can these be included

and the judge did say to write down everything that we are concerned about - will that make a difference

You might want to consider changing the reference:

5. Under Directive 93/13 <...>

http://en.wikipedia.org/wiki/Unfair_Terms_in_Consumer_Contracts_Regulations_1999

http://www.legislation.gov.uk/uksi/1999/2083/contents/made

Unfortunately the courts obligation to test the fairness of terms (of their own motion) does not appear to have been translated into the UTCCR (or at least i cant find it). however, it is settled law ref to the cases of "pannon" and "oceanic grupo" and this is why i quote the directive rather than the UTCCR.

Unfortunately the courts obligation to test the fairness of terms (of their own motion) does not appear to have been translated into the UTCCR (or at least i cant find it). however, it is settled law ref to the cases of "pannon" and "oceanic group" and this is why i quote the directive rather than the UTCCR.

Sometimes climbing a mountain is a series of short, steep climbs as you head for the next local horizon, or the cloud base.

Sometimes the view changes or the cloud clears and you can see just how far you still have to go before you get to the summit.

I just had one of those moments...

Awesome. And thanks.

Interesting.

FSA has fined DB Mortgages for"Serious" breaches of MCOB's rules, one of those breaches was putting the consumer at risk of financial loss

(link kindly provided by bankfodder unfair lender conduct)

When my case started there would have been over £2,000 of surplus funds after the sale, however, HSBC used its Full Indemnity Clause to add court costs and solicitors fees to the mortgage and created a shortfall. as there were two lenders HSBC and one of its subsidiaries there then followed a 4 month debate on who would show the deficit.

This got so bad that the purchaser pulled out. I then got on to HSBC's solicitors (DG) to advise them who, then burst into a flurry of action (no doubt raising more fees for me to pay) and between us we got the purchaser back on board.

Once the sale completed the bank created a new account (strangely with the old mortgage account number) for the shortfall

This could have happened in a different way :-

The bank could have allowed the sale to go through, created the new account (adding court costs and solicitors fees) and then offset some of this with the proceeds of the sale.

This would have lead to less interest for me to pay (4 months) and less solicitors fees/costs.

So if putting the consumer at risk of financial loss is "serious" then what is actually causing financial loss ????

Edit - If this Full indemnity Clause permits HSBC to take an action which causes financial loss then is this clause fair???

HSBC have offered to remove the shortfall in an attempt to settle????

They have never mentioned anything like that before