Hi Paulwlton, Why was the case dismissed? What was the core term?

Hi 00765, The overcharge I mentioned relates to ERC only. You would need to get them to tell you what the interest was for. Were you in arrears at redemption? Without knowing what your position was its hard to comment. You really need them to break this down for you and explain. Sorry I can't help futher. Good luck.

Hi All, One person has taken my advice re: ERC overcharge from KMC and got a small refund. I would love more people to look at their redemption statements. The ERC should only apply to the starting balance (what you initially borrowed) plus MEAF and deeds release. They appear to be charging ERC on the whole balance at redemption including arrears, monthly penalties etc. This is in clear breach of their T&C. They claim its an error however its computer generated. In other words everyone with arrears etc will be effected. Just look at your figures. If I'm right please, please let me know! Good luck all.

Hi spinaltap, You might have read my thread. They charged me an ERC of 6% on the final figure which included arrears etc. This was in clear breach of their own terms. I am currently doing battle with them through the courts and this is one issue. Is there anyway you could provide me with details through a private message? I would really like to prove through the courts that this is common practice but at the moment people seem to think I mean contractually charged ERC. Any help gratefully recieved.

Hi Deathlord, At the moment I am waiting to hear from the court on my request to have the arrears fees and MEAF removed from my claim in order to proceed with the ERC charge. Obviously the ERC is a tricky thing to take to court and I certainly wouldn't have done if 1. I wasn't under a suspended possession order 2. my mortgage was discounted (at the time of redemption my mortgage was over 11%). Kensington tried to send me a copy of my mortgage statement in response to my SAR. When I phoned them to ask where all the rest was they said that they must have misunderstood my request. They dug out my SAR and agreed the mistake was theirs (I used the SAR from this site). TodayI recieved a box of papers which cost them 37 pounds to send here in NZ. There all pretty boring but they do show time and time again I claimed the ERC as a penalty, which they are claiming is a new charge on my part. I do think it funny that they have recently had lower profits, which they put down to more people waiting until the ERC period is over. However this doesn't help much if they have a legal 'right' to do so. Maybe all Kensington claimants should buy a share in the company in order to have legal access to their next AGM. Then we could put some of our questions to the board! I do think it funny that Kensington have recently ha

Hi Paulwlton, I'm not suggesting for one second that 00765 takes KMC to court over the ERC. However I think that they have overcharged him as they have admitted overcharging me. Whilst this isn't a great amount it is still hundreds. It is my belief that they do this often. If a customer has been overcharged in this manner this isn't something that KMC could dispute, It wouldn't be covered by their indemnity clause furthermore it breaches their own terms quite clearly. This isn't my interpretation of the contract, its just fact. I'm still here and happy to help anyone who has had a mortgage redeemed with KMC.

Hi 00765, I am currently going through court action with Kensington Mortgages. There are two parts to my claim, firstly there is the ERC and secondly an amount that they overcharged. They have admitted in their defence that this was an overcharge. Looking at your figures they have also overcharged you. I would gladly help you with getting this back (without court action). If you are interested just email me back with your initial advance amount plus any further sums borrowed. Wishing you well.

Hi, well it looks like I will have to amend my claim slightly as I added the monthly arrears charge and MEAF. I think I will need to remove these from the claim and deal with that seperately. That leaves the ERC and the overcharge. Interestingly I note that another CAG member had also been overcharged the ERC with Kensington. Kensington claim that my overcharge was an oversight. They admitted that it shouldn't have been charged in their defence filed with the court in December. They didn't contact me until the day before the Allocation hearing in May to arrange repayment and I didn't get a copy of their defence until then either. I didn't agree the amount they then wanted to repay and this still remains part of my claim. The overcharge was ERC charged on the arrears and monthly penalties etc. In other words the full amount I owed at the time of redeeming. The ERC should only be charged on the amount you first borrowed plus deeds fee and MEAF. They say that they didn't have my contact details (I'm in NZ). I pointed out that I had it in writing that they did. Their solicitor is now claiming that they want to amend their defence as they didn't know that I was claiming the ERC was a penalty! They are also asking the court to make me pay for their amended defence! I will be asking court to allow me to remove the monthly penalties and MEAF, point out that I had made it perfectly clear in all communications with Kensington that I thought the ERC was a penalty, and in my particulars of claim and allocation questionaire. They still owe nearly 900.00 pounds, which they admit but have made no effort to repay. Obviously this amount would not be covered by any indemnity clause as its in direct breach of their own terms! I will post the courts reply when it arrives. In the mean time if anyone checks their redemption statement and finds that they too have been overcharged please let me know. I just have a feeling this will be something that happens. If your not sure just send me a private message with your figures.

Hi All, Firstly what is a CRP18 and do I to do anything unless order by a court? Also should this be something that I request from Kensington's solicitor? If so what information should I look to gain from it? Any help gratefully recieved.

Hi Phill2007, Thats great. Well done. Did they show up in court? What was the basis of the win? Any information you can give would really help at the moment as I am up against Kensington and I know that they will try for costs under the indemnity clause.

Hi, Message for Will Scarlet, I'm interested in your previous message on this thread. I am currently going to court with Kensington Mortgages re: ERC and details are under my own thread. At time of redeeming my mortgage I was under a suspended possession order. I tried to negotiate the ERC as that was one of the reasons I found it hard to redeem. In the end they gave their final response, which was negative. I then put in writing that I would pay it under duress and intended taking the matter to court. I would be very interested in what you think.

Hi Bona, Sorry to hear about your problems. I have read about Jamorgons case, which seemed to say that as there was no breach of mortgage terms the ERC was payable. The mere act of redeeming the mortgage is not a breach as its a right expressed under the terms. However people like you and I are clearly in breach. The House of Lords have stated that in cases like ours the mortgage sum is due upon default (this could be within a month or immediately. Terms differ). It follows therefore that the sum charged is not an ERC. It cannot be an early repayment of a sum due and therefore can only be a penalty. That then comes under Unfair Terms. In the 'Analysis of Unfair Terms in Schedule 2 Feb 2001' (available from OFT) there are many points of interest and again, worth reading. If it can be argued that the ERC is not an ERC (which given above shouldn't be hard in the face of a definate breach) but in fact a penalty then, going back to the 'Unfair Terms', Schedule 2, Paragraph 1, states that terms maybe unfair if they have the object or effect of; (e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation. It also goes on to say that: Other kinds of penal provisions which may be unfair are damages and costs clauses saying that the supplier can: Claim his costs on an indemnity basis. The words 'indemnity' and 'indemnify' are also objectionable as legal jargon. Furthermore: Penalties do not have to be excessive in all cases to be unfair. A penalty that states a fixed or minimum sum, to be paid in all cases, will be open to challenge if the sum could be too high in some cases. It seems to me that unless you are in breach of the mortgage terms it will be very hard to claim a legal right to have the ERC's returned. However when there is a clear breach of terms I think its possible. The problem is that these are the cases the mortgage companies are settling out of court. This means that no precident has been set. I am hoping for any information that may help and in return I will ensure that all information regarding my claim will be posted here. Hope to you all. Furthermore

Hi Bona, Sorry to hear about your problems. I have read about Jamorgons case, which seemed to say that as there was no breach of mortgage terms the ERC was payable. The mere act of redeeming the mortgage is not a breach as its a right expressed under the terms. However people like you and I are clearly in breach. The House of Lords have stated that in cases like ours the mortgage sum is due upon default. It follows therefore that the sum charged is not an ERC. Cannot be an early repayment of a sum due and therefore can only be a penalty. That then becomes an Unfair Terms. In the 'Analysis of Unfair Terms in Schedule 2 Feb 2001' (available from OFT) points there are many points of interest and again, worth reading. If it can be argued that the ERC is not an ERC (which given above shouldn't be hard in the face of a definate breach) but in fact a penalty then, going back to the 'Unfair Terms', Schedule 2, Paragraph 1,

Hi All, I'm still awaiting the directions from the court. I am already forming my case and just wanted to run it past you all. As you are aware I was in default of my mortgage at the time of redemption and under a suspended possession order. The ERC was charged on the original amount + arrears and monthly penalties, which Kensington admitted was a mistake. However they say that the ERC, which was charged on the Redemption fee and Deeds fee, remains. My arguement is that as the mortgage was in default the mortgage was already due. Therefore an ERC shouldn't become payable. This can be backed up by The House of Lords appeal on the case, West Bromwich Building Society (Appellants) v Wilkinson and another (Respondents). In this case the issue was when the clock started to tick. The upshot was that Lord Hoffmann set out six specified events. The second of them, default by the borrower is the event which entitled the building society to sell the respondents house. In most mortgage conditions there is a term which makes the money payable under Section 101 of the 1925 Law of Property Act within a certain time upon default. In my terms with Kensington (2003 - 1st Edition) that says: On Default or in certain other circumstances 14.3 No matter what any other Conditions say, we have the right to demand immediate repayment of the Debt in any of the following circumstances; 1. If you fail to pay a Monthly Payment or any other money due under your mortgage; 2. If you break any of the terms of your mortgage etc etc.. So, following that line upon my default the sum became immediately due as agreed in the House of Lords (worth reading). Therefore the ERC was not payable. The terms laid out by Kensington clearly call it an Early Repayment. There is no way that I could have repaid my mortgage early as the sum was already due as can be demonstrated. As for the indemnity (and the above clause for that matter) the OFT says that all terms should be easily understood? Well there are some very clever people on this site and none of us really took much notice of this clause. Furthermore as the ERC applied to my mortgage redemption was clearly outside their terms I fail to see why I should pay their costs. They're legal costs surely can't be covered by the indemnity clause? Anyway I intend to push this all the way and will gladly make a donation to your fund on winning!!

Well, the Judge has given a load of directions but the court administrator can't read the writing. They will be typed up and faxed to me next week. The case has been assigned to the Multi track, which doesn't shock me. However there are two points here. First one is that I can afford the costs if need be. Second relates to the stand likely to be taken by the likes of OFT. I got the courts to fax me Kensington's defence, which was filed in December. In this they admit that they have overcharged however they didn't bother to tell me! It would be very hard for a Judge to award costs to Kensington at the moment as Kensington have clearly charged outside of their terms. Watch this space. I am here to see justice.