Mortgage Express/ERC *Withdrawn - costs liabilty*

[gizmo111]

Hi,

This is the letter I have ready for Mortgage Expres swith a view to reclaiming my ERC. Does anything need adding or taking out that anyone can see?

Thanks for help

Mortgage account no xxxxxxx

Please supply me with a complete list of transactions and charges, and copy correspondence relating to my mortgage account since original offer in November 2001. Please include my original mortgage offer, and any subsequent amendments and details of further offer that was made in May 2003, to facilitate a house move. Please also supply copy of final redemption in April 2004.

At the time of opening this account, my surname was xxxxx and my address was xxxxxxxx

Additionally, where there has been any event in my account history over this period which has required manual intervention by any member of your staff, or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my banking business with you.

 

If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply. Furthermore, if I discover that you have levied disproportionate penalties against me, then I shall be reclaiming them, and also reclaiming the enclosed £10 DPA subject access request fee.

 

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

 

Yours faithfully,

 

 

 

 

 

 

[Guest Jonnno]

Just picking a random 1st post to read after registration I chose yours. I have to say I think you are barking up the wrong tree here. I have worked in the finance industry and can tell you that the Early Redemption Charge made by your lender is not covered at all by the OFT report into unfair charges.

 

Your lender will come back and say that when they offered you the mortgage they gave you a mortgage offer that explained that if you redeemed your mortgage before a certain time there would be an additional charge. This is normally the case on fixed rate or discounted rate mortgages and the lenders do this so they don't lose money when people swap immediately when their fix/discount comes to an end.

 

Your choice of course but I'd try a different tack entirely if you really want to try to get your ERC back.

[jonni2bad]

Hi Gizmo

 

For the life of me, I can't see any mention of the OFT in your letter, so I don't understand the reply above this one.

 

Others have been tackling the same issue and I'm certain there has already been a refund.

 

Stick at this and let us know how you are getting along.

[gizmo111]

On day 40 received all info from Mortgage Express - in nice display folders and in order. Product redemption fee was £5020.00. Interstingly in the notes to abbreviations it is shown as PENALTY INTEREST. Prelim to go off in next few days.

 

With this claim, I remortgaged to a rate of 6.6%, and the ERC was included in the new mortgage amount I have paid approx £783 interest on this so I presume I can add that into my prelim making a total claim of £5800, can I then at money claim stage add the 8% still?

 

Thanks

[jonni2bad]

That would be my understanding..

[zootscoot]

Hi Gizzmo,

 

Having looked into the issue of interest paid on new debt to repay the ERC I don't think that you can claim it after all. This is because our claims are not based on breach of contract. Ie it is not us suing the bank for their breach of contract but we are the ones in breach of contract and we are thus claiming the return of money unlawfully taken from us in consequence. Our claims are actually based on the law of restitution which is based on unjust enrichment of the defendant. Thus our claims relate to what the defendant has gained rather than what we as claimants have lost. Therefore as the payment of interest on the new mortgage does not go to the defendant it can not be recovered.

 

You can still claim the statutory 8% at court stage in the normal way.

 

Sorry if I have mislead you in previous posts. It might actually help keep your claim in the small claims track.

 

Zoot

[gizmo111]

Hi Gizzmo,

 

Having looked into the issue of interest paid on new debt to repay the ERC I don't think that you can claim it after all. This is because our claims are not based on breach of contract. Ie it is not us suing the bank for their breach of contract but we are the ones in breach of contract and we are thus claiming the return of money unlawfully taken from us in consequence. Our claims are actually based on the law of restitution which is based on unjust enrichment of the defendant. Thus our claims relate to what the defendant has gained rather than what we as claimants have lost. Therefore as the payment of interest on the new mortgage does not go to the defendant it can not be recovered.

 

You can still claim the statutory 8% at court stage in the normal way.

 

Sorry if I have mislead you in previous posts. It might actually help keep your claim in the small claims track.

 

Zoot

 

Thanks - Just my luck that it is 5020 just over the 5K - still lets see how they respond.

[zootscoot]

You can ask for it to be placed in small claims at allocation questionnaire time... if it gets that far.

 

As its only just above the limit, its a consumer claim and does not involve complex issues there's a good chance it will remain in the small claims.

 

Fingers crossed

 

Zoot

[nathal]

When i sent dpa to mortgage express, all i received was 3 a4 pages

[zootscoot]

Did it include all the relevant info for the time periods?

 

Mortgage company SARs will generally have less info than current accounts as there is simply less activity.

[nathal]

all transactions to include arrears review fee and dd refusal fees(quite a few)

but didnt receive anything about manual intervention so as i take it, there was none.

[gizmo111]

Did it include all the relevant info for the time periods?

 

Mortgage company SARs will generally have less info than current accounts as there is simply less activity.

 

I received everything the yhad all in order in plastic wallets including original apllication and telephone notes - on day 40

[nathal]

i never got notes or applicant details but i got what i needed

[gizmo111]

Prelim ready for posting tomorrow.

[gizmo111]

Prelim ready for posting tomorrow.

 

Received a reply from ME as follows

 

As quoted from the office of fair trading ' Terms in comsumer which set the price or define the product or service being supplied are 'core terms' of the contract and are exempt from the test of fairness as long as they meeet the plain language requirement' I've enclosed the copy of the special conditions and would refer you to point 11 which I have highlighted. This sectyion of the contract details our tariff and in signing this document you agreed to our fees. T&C at the point of redemption clearly state there would be a ERC applicable.

 

So do I address this in LBA or just use the standard letter - bloody cheek I never considered the £5k I paid to be either a service or product that I received - a penealty was my thinking!

[zootscoot]

This is simply a roundabout way of saying you have not breached your contract and therefore they can charge what they like.

 

You could address this in your LBA, pointing out that the ERC is a charge in relation to a breach of contract and this therefore invokes the penalty provisions.

 

Or you can simply ignore their attempts at legal arguments as they have ignored yours!

 

Best of luck

 

Zoot

[gizmo111]

This is simply a roundabout way of saying you have not breached your contract and therefore they can charge what they like.

 

You could address this in your LBA, pointing out that the ERC is a charge in relation to a breach of contract and this therefore invokes the penalty provisions.

 

Or you can simply ignore their attempts at legal arguments as they have ignored yours!

 

Best of luck

 

Zoot

 

Any thoughts on this - have I put in enough?

 

LETTER BEFORE ACTION

Dear Sir/Madam,

 

ACCOUNT NUMBER:

 

Thank you for your letter of 04 October regarding Early Repayment Charge of £5020.03, which was made on the above account.

I refer to the following statements in your letter

As quoted from the office of fair trading ' Terms in consumer contracts which set the price or define the product or service being supplied are 'core terms' of the contract and are exempt from the test of fairness as long as they meet the plain language requirement' I've enclosed the copy of the special conditions and would refer you to point 11 which I have highlighted. This section of the contract details our tariff of fees and in signing this document you’ve agreed to these charges.

Your terms and conditions at the point of redemption clearly state that there would be an Early Repayment Charge applicable.

It is my belief that the Early Repayment Charge is in fact a penalty for breach of contract rather than as suggested by yourself a charge for the supply of a service or product. My letter to you dated 18th September does in fact draw your attention to other statements from the Office of Fair Trading, and also relevant statute and common law. May I suggest that you familiarise yourself with the legal principles outlined in that letter so as to be sure that you understand the legal basis for my request for repayment of the Early Redemption Charge, of £5020.03.

Since paying the fee I now understand that such fees are unlawful and unenforceable as outlined in our previous letter. We would draw your attention to the terms of the contract which you agreed to at the time that we opened our 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 our account in this way as we had always reposed confidence in your integrity and expertise as our fiduciary. We require repayment in full of this money. If you do not comply fully within 14 days then we shall initiate court proceedings against you for the full amount, plus interest, plus costs and without further notice.

 

Yours faithfully,

 

 

[zootscoot]

Hi Gizmo

Suggested addition in red to clarify on the breach of contract issue.

Best of luck

Zoot

LETTER BEFORE ACTION

Dear Sir/Madam,

 

ACCOUNT NUMBER:

 

Thank you for your letter of 04 October regarding Early Repayment Charge of £5020.03, which was made on the above account.

 

I refer to the following statements in your letter

 

As quoted from the office of fair trading ' Terms in consumer contracts which set the price or define the product or service being supplied are 'core terms' of the contract and are exempt from the test of fairness as long as they meet the plain language requirement' I've enclosed the copy of the special conditions and would refer you to point 11 which I have highlighted. This section of the contract details our tariff of fees and in signing this document you’ve agreed to these charges.

 

Your terms and conditions at the point of redemption clearly state that there would be an Early Repayment Charge applicable.

 

It is my belief that the Early Repayment Charge is in fact a penalty for breach of contract rather than as suggested by yourself a charge for the supply of a service or product in that I/we terminated the mortgage contract before the contractually agreed period of XX years.

 

This term of the contract was clearly stated in the written mortgage offer signed by myself (and XXX?). The terms of which were incorporated by reference into the mortgage deed which was not only signed by us but also witnessed. There is clearly no room for doubt that such a clause existed in the contract. Similarly, there is no question that we in fact redeemed the mortgage on the xx/xx/xxxx as evidenced by our final redemption statement. This date is clearly well before the contractually agreed date of xx/xx/xxxx and thus represents a clear breach of the contract.

My letter to you dated 18th September does in fact draw your attention to other statements from the Office of Fair Trading, and also relevant statute and common law. May I suggest that you familiarise yourself with the legal principles outlined in that letter so as to be sure that you understand the legal basis for my request for repayment of the Early Redemption Charge, of £5020.03.

 

Since paying the fee I now understand that such fees are unlawful and unenforceable as outlined in our previous letter. We would draw your attention to the terms of the contract which you agreed to at the time that we opened our 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 our account in this way as we had always reposed confidence in your integrity and expertise as our fiduciary. We require repayment in full of this money. If you do not comply fully within 14 days then we shall initiate court proceedings against you for the full amount, plus interest, plus costs and without further notice.

 

Yours faithfully,

 

 

[gizmo111]

Thanks zoot extras added in - will be posted later.

[gizmo111]

Final response received today - ERC is not a penalty but a reasonable pre-estimate of the loss we would suffer. Rates are carefully calculated over a period of time to ensure we do not make a loss. Seems the only thing missing is - oh I know a breakdown of their costs .... Claim to be prepared later 5020.03 +interest!

[zootscoot]

I feel another money claim coming on!

 

Best of luck

 

Zoot

[gizmo111]

I feel another money claim coming on!

 

Best of luck

 

Zoot

 

N1 ready for posting - including costs and interest £6265.78 - put in joint names but does partner have to attend court if it goes that far or can I go without him?

[jonni2bad]

You can do so on your own

[gizmo111]

You can do so on your own

 

Thankyou.

[gizmo111]

Acknowledgement - intention to defend in full by in house solicitor - they have until 2nd Dec to defend.