Thunderpuss2k vs Birmingham Midshires (Halifax) **WON**

[gizmo111]

And don't forget this

 

"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

[gizmo111]

Can anyone help with this explanation of the large charge showing on my statements. Can I claim or not ?

 

 

(Birmingham Midshires)

 

I have looked into your query and confirm on 21 October 02 you had a product transfer to FSC this was a flexible product that operated on a discount of 0.50% off the Bank of England base rate +1.75% for life.

 

As part of the terms and conditions of your old product. Early Repayment Charges were applicable for 120months, as you decided to change your product within that time you incurred £1.548.79 and an arrangement fee of £149.00 for your new product. this is a total of £1.697.79.

 

Sorry I am a dope and don't know if I can claim or not. Of course I want to particually as we changed product with them.

 

 

????? Thanks Lizzy

 

PS still not received the penalty charges back yet.

 

Have you still got a mortgagte with them? And what rate was your old one as 10 years is a hell of a tie in.

[gizmo111]

Ohh you beat me to it. My cheque arrived this morning as well the whole £2275. That was only on a prelim letter so I'm chuffed.

 

 

Gizmo, we don't have a mortgage with them anymore. I can't remember the rate but I know it was high even about 7% but at that time mortgage rates were spiralling out of control. I did tell hubby that it was too long a tie in. As BM have not stated at what point/date we switched I don't know if that was a reasonable penalty or not. Lets say it was after 5 years is that a justified penalty or actual loss to them ?

 

Whats the next step in wording to them, is it simply "what were your actual losses?" Is there a template letter you used for this Thunderpuss? I cant seem to find anything.

 

Thanks all

 

Lizzy

 

 

 

 

Try this - not written by myself but found on another thread. Unless it represents their true costs then it is not areasonable charge. Up to them to prove that not you.

 

 

ACCOUNT NUMBER: xxxxxx

 

Request for repayment of charges

 

Dear Sir/Madam

 

My request

 

I am writing to ask you to refund £xxxxx in respect of a redemption fee levied on the above account. I now understand that such fees are unlawful at Common Law, Statute and recent consumer Regulations.

 

In the 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 as oppose to a charge which represents a penalty. This law was confirmed and upheld in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79. A charge will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable.

In addition 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 ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as I am a consumer. Your charges constitute an unfair penalty under Schedule 2 of the said Regulations which provide an indicative and non-exhaustive list of terms which may be regarded as unfair. Under paragraph 1(e) of schedule 2 this specifically includes terms which have the object of requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation. I would vigorously contend that this is the position regarding the fee of £xxxx which you deemed fit to apply to my account.

Furthermore a fee levied requiring me to indemnify you against any commercial risk to yourself in offering me a reduced interest rate in order to attract my custom is also contrary to s.4 Unlawful Contracts Terms Act 1977. I am confident that a court is likely to consider this clause to be unreasonable within s.11 of the said Act as a large commercial institution such as yourselves is in a far better placed position than me as a consumer to bear the burden of the vassitudes of business.

 

I would like to bring your attention to the following statement by The Office of Fair Trading:

 

"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."

I believe that the charges you have levied of £xxxxfor early redemption far exceed any true cost to yourself as a result of our breach and any genuine pre-estimate you could conceivably reach. If you disagree, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put to as a result of our breaches, in order to reassure us that your charges really do reflect your costs.

 

Your responsibilities

 

I would draw your attention to the terms of the contract which you agreed to at the time that I took out the loan. 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. 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 rights until now.

 

My targets to resolve this matter

 

I really hope that this matter can be resolved amicably and without the need for redress to the courts. Thus I am asking that you refund the charge which has been unlawfully levied on my account. Failure to refund all the money unlawfully taken from me will result in me taking further action. I will give you 14 days to reply accepting, unconditionally, my request in principle and letting me know a date by which I will receive payment. If you do not respond, or you do not respond positively, within this time period, I shall send you a letter before action giving you a further 14 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, there will be no further communication from me and I shall issue a claim at the expiry of the second deadline. Thus take this letter as 28 days written notice of my intention to issue a court claim should you not comply with my request. I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you will prefer to do this than merely respond with standard letters and leaflets.

 

Yours faithfully,

 

 

[gizmo111]

thunderpuss,do you reckon the switching fee I got charged of almost £3k is not up for reclaiming?

 

I think I would ask them what this fee actually represents, and how paying this fee benefitied you.

[gizmo111]

it was for moving from one product to another without leaving them entirely.

 

Seems incredibly high - I was charged £149 a few months ago but I claimed it back saying it had never been expalined to me when I made the change, what does it actually say on your paperwork (if you have already posted this apologies)

[gizmo111]

Letter this morning from HBOS. The usual 'you agreed to be bound by the terms of the mortgage, we believe the ERC is legal and right, etc'.

 

To cut a long story short.. without admission of liability they're willing to refund £4388.36 of the ERC, £291.56 in interest and £120 court fee - total £4799.92. Cheque should be with me within the next five days. OK so I lose out on nearly £33 of daily interest, but what the hell.

 

This is a good day all round for ERC's well done.