Jump to content


Krash vs Northern Rock


style="text-align: center;">  

Thread Locked

because no one has posted on it for the last 4629 days.

If you need to add something to this thread then

 

Please click the "Report " link

 

at the bottom of one of the posts.

 

If you want to post a new story then

Please

Start your own new thread

That way you will attract more attention to your story and get more visitors and more help 

 

Thanks

Recommended Posts

Greetings all, so far I have, with the awesome assistance of the templates and information on this website, successfully claimed back £65 from Egg and I am currently trying to claim back £205 from Northern Rock, who are my current mortgage company (and no, I don't expect or intend to stay with them). I have now got to the point where I've sent my LBA and fully expect and intend for this to go to court - again helped in no small part by the Small Claims kit also available here (and cheaper than anywhere else, too!).

 

The deadline I set in my LBA for settlement of this claim is the 29th of October, 2008 and, as you will see from their replies, they are refuting the points of law I have used from the Mortgage charge letter templates prelim/LBA thread. I've included below my correspondence thus far and would greatly appreciate any comments and assistance the forum may feel is useful.

 

Thanks.

Link to post
Share on other sites

Sent 10th Sept 2008

 

Since I took out a mortgage with yourselves, you have made the following charges on my account:

01 May 2005 25 Arrears Charge

02 December 2005 30 Returned Direct Debit Fee

10 January 2006 30 Returned Direct Debit Fee

25 January 2006 30 Returned Direct Debit Fee

09 February 2006 30 Returned Direct Debit Fee

 

It has come to my attention that this is unlawful at common law, and under statute and recent consumer regulations.

In the terms of the contract which you agreed to at the time that I opened my account, it is implied that you will conduct yourselves in a manner which complies with UK law.

Unless you can prove that they merely cover your administrative costs, I require full repayment of these charges, which I calculate at £145 plus interest of £46.49. The total is £191.49.

If you do not comply fully within 14 days, I shall begin a claim against you for the full amount, plus interest and costs.

Yours faithfully,

Link to post
Share on other sites

They replied on the 30th of September after I called them up to see that they had received the letter (they had, it was in the "Not our problem" pile of some department, so I agreed to allow them a few extra days to respond). At this time I had also realised a mistake had been made in my initial claim and calculations, which I corrected over the phone and set out in writing in the reply to the following letter:

 

Mortgage Account Charges

Thank you for your letter dated 10 September 2008 referring to charges made in relation to your Mortgage Account.

I am sorry to learn of your dissatisfaction with Northern Rock and note your comments regarding the charges incurred on your Mortgage Account. In light of your reference to beginning a claim through the courts regarding this matter, advice has been sought from Northern Rock's Group Legal Department prior to issuing this response.

Northern Rock refutes any suggestion that the charges applied to your Mortgage Account are unlawful, unfair or represent a penalty. As a matter of law, the courts will only find that a contractual term represents a penalty where, on breach of contract, that term provides for a measure of damages that is not considered to represent a genuine pre-estimate of loss. Because there is no breach of contract, the issue of a penalty does not arise.

In summary, the charges applied to your mortgage account did not represent any form of damages for breach of contract and were simply charges for services. You were clearly and unambiguously notified of the charges, prior to entering into the mortgage agreement.

With regard to the threat of court proceedings, Northern Rock looks forward to receiving your substantive response to the legal points raised above, prior to the issue of any proceedings. For the reasons set out above, Northern Rock does not consider that your letter dated 10 September 2008 discloses any reasonable grounds for bringing a claim against it, and nor, if such a claim were issued, that it would have any prospect of success.

In the event that proceedings are issued without your having provided a substantive response to the legal issues raised, Northern Rock reserves the right to bring such failure to respond and the content of this letter to the attention of the court in relation to its costs.

If you are in any doubt as to the meaning of any of the above, it is strongly recommended that you seek independent legal advice.

I hope my comments have clarified matters. If I can be of any further assistance, or you remain dissatisfied with this response, please contact me in writing or by telephone on 0191 279 8863 or 0191 279 8361. In line with Northern Rock's Internal Complaints Procedure, if I do not hear from you within eight weeks of the date of this letter I will assume your complaint is closed.

Yours sincerely

Link to post
Share on other sites

Thank you for your letter dated 30th September, it is out of sheer goodwill that I extended the time period within which you could make your reply following a discussion with a very helpful lady by the name of “XxXxX” on the 25th of this month, following what I find to be a quite disgusting apathy towards my complaint to yourselves. The phrase “It’s nothing to do with us” coming from the first department that viewed this claim is one that I certainly did not expect to hear. During this conversation I also amended the costs and charges that I am seeking to recover from you, which can be found in full, below.

01 May 2005 25 Arrears Charge

02 December 2005 30 Returned Direct Debit Fee

10 January 2006 30 Returned Direct Debit Fee

25 January 2006 30 Returned Direct Debit Fee

09 February 2006 30 Returned Direct Debit Fee

02 October 2007 30 Returned Direct Debit Fee

03 May 2007 30 Returned Direct Debit Fee

Total 205

 

The laws and cases, to which I shall refer to, in making this case are thus:

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 fees associated with “Returned Direct Debits (£30)” and “Arrears Charge (£25)” which you deemed fit to apply to my account.

In closing I am very disappointed that you have failed to respond positively to my previous correspondence requesting a return of such charges. You have also failed to demonstrate that the charges were a genuine pre-estimate of your costs and that the charges are indeed unlawful penalties rather than reflecting liquidated losses.

 

I will give you 28 days to demonstrate the charges are lawful or to reimburse the charges amounting to £205 and £28.55 interest applied thereon. If you fail to comply with this request I shall commence proceedings in the county court to recover the charges applied to my mortgage. I shall also be including a claim for interest at the statutory rate of 8%.

Yours faithfully,

Link to post
Share on other sites

They have now replied with the following letter:

 

Mortgage Account Charges

Thank you for your letter dated 1 October 2008 referring to charges made in relation to your Mortgage Account.

I am sorry you remain dissatisfaction with Northern Rock about the charges incurred on your Mortgage Account. In light of your reference to specific laws and example cases, advice has been sought from Northern Rock's Group Legal Department prior to issuing this response.

You refer to Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] and Castaneda and Others v Clydebank Engineering and Shipbuilding Co. Ltd [1904]" Both of these cases clearly stipulate that the question as to whether a charge is a penalty is to be decided on the terms of each contract. The payment of service charges in connection with your mortgage account does not represent a breach of contract and therefore the issue of damages for breach does not arise. As such, neither case is applicable in the circumstances. As a matter of law, the courts will only find that a contractual term represents a penalty where there has been a breach of contract, and that term provides for a measure of damages that is not considered to represent a genuine pre-estimate of loss.

Northern Rock pic also disagrees entirely with the suggestion that the charges applied to your Mortgage Account are either a penalty or unenforceable under the Unfair Terms in Consumer Contracts Regulations 1999("UTCCR"). You should be aware that Regulation 6(2) of the UTCCR sets out that the UTCCR do not apply to core terms of the contract and nor do they apply to the adequacy of the bargain between the parties to a contract. For these reasons, in accordance with Regulation 6(2), the UTCCR is not applicable to the charges applied to your Mortgage Account and nor does the clause relating to the charges represent an unfair term.

We still refute any suggestion that the charges applied to your Mortgage Account are unlawful, unfair or represent a penalty.

With regard to the threat of court proceedings, Northern Rock looks forward to receiving your substantive response to the legal points raised above, prior to the issue of any proceedings. For the reasons set out above, Northern Rock does not consider that your letter dated 1 October 2008 discloses any reasonable grounds for bringing a claim against it, and nor, if such a claim were issued, that it would have any prospect of success.

In the event that proceedings are issued without your having provided a substantive response to the legal issues raised, Northern Rock reserves the right to bring such failure to respond and the content of this letter to the attention of the court in relation to its costs.

If you are in any doubt as to the meaning of any of the above, it is strongly recommended that you seek independent legal advice.

I hope my comments have clarified matters. If I can be of any further assistance, or you remain dissatisfied with this response, please contact me in writing or by telephone on 0191 279 8863 or 0191 279 8361. In line with Northern Rock's Internal Complaints Procedure, if I do not hear from you within eight weeks of the date of this letter I will assume your complaint is closed.

Link to post
Share on other sites

This fits in with what I have been told to expect from these companies and I am now in the process of filling out the legal claim forms to submit to my local county court, more than anything I want someone to say "yes, you've followed the instructions correctly so far, the next step IS to take it to court!".

 

Thanks in advance!

Link to post
Share on other sites
  • Recently Browsing   0 Caggers

    No registered users viewing this page.


  • Have we helped you ...?


×
×
  • Create New...