Genesco V Kensington

[genesco]

I am considering reclaiming my Early Repayment Charge back £9000+ I have recently changed my mortgage because I was on an discounted rate for a year but then went up to an extortionate 9% It was a three year interest only contract and I swopped at 18months.

 

Has anyone got a sample letter I can see or what do you have to change on the standard DPA letter. I already have how much my redemption fee was.

 

What else can I claim for.

 

ON my final statement I had to pay

Redemption Fee

Early Repayment Charge

 

My start balance was £161.697

What I paid back was £171.518

 

I only went with them cause I had bad Credit.

Can anyone help

[genesco]

Is a redemption adminitration fee the same as a redemption discharge fee

[dinahjl]

Hi Genesco

 

Have you had any luck with these questions? I am interested to know about reclaiming an early redemption from the same lender!

[zootscoot]

Hi,

 

If the charges are made in relation to your breach of contract, ie ending the mortgage before the contractualy agrred time, then Kensington will have to show that the fees are a genuine pre-estimate of the their loss. It doesn't really matter what they call the charge.

 

I used an adaptation of the template:

 

ACCOUNT NUMBER: XXXX

 

Request for repayment of charges

 

Dear XXXX,

 

 

Our request

 

We are writing to ask you to refund the charges which you have levied from our account in respect of late payment fees to the sum of £XXX , the sum of £XXX representing the contractual rate of interest applied by yourselves in respect of the said charges (Please find enclosed schedule of charges detailing dates, amounts and interest) and xxx in respect of a redemption fee. We 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). Our account falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as we are consumers. 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.

 

Also it has now been confirmed that your penalties are considered to be unfair per se by the OFT who reported on the 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.

 

We believe that the charges you have levied varying between £10.00 and £30.00 for late payment far exceed any true cost to yourself as a result of our breach. 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

 

We would draw your attention to the terms of the contract which you agreed to at the time that we 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.

 

We are frankly shocked that you have operated our account in this way as we had always reposed confidence in your integrity and expertise. We consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived us into agreeing to pay them. Your concealment of the true nature of your charges has prevented us from asserting our rights until now.

 

 

Our targets to resolve this matter

We really hope that this matter can be resolved amicably and without the need for redress to the courts. Thus we are asking that you refund the total charges which have unlawfully been levied on our account. Failure to refund all the money unlawfully taken from us will result in us taking further action. We will give you 14 days to reply accepting, unconditionally, our request in principle and letting us know a date by which we will receive payment. If you do not respond, or you do not respond positively, within this time period, we shall send you a letter before action giving you a further 14 days in which to reflect. We 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 we shall issue a claim at the expiry of the second deadline. Thus take this letter as 28 days written notice of our 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,

XXXX

 

Hope this helps

 

Best of luck

 

Zoot

 

I am assuming you are aware of the implications of claiming over 5,000?

 

 

[dinahjl]

Hi Zoot,

 

Thanks for the letter - brilliant! I am awaiting the statements and will take great delight in sending it.

 

Re the 5K rule - I know that the redemption charge was more than this alone, and have no idea what the other charges will be yet. If the claim is in excess of £5K can I just claim £5K in settlement? I certainly could not afford to pursue them for the return of the money if it was not in Small Claims.

 

Thanks again,

Dinah

[zootscoot]

Hi Dinah

 

You might want to claim your charges separately from the redemption fee. The redemption fee you can not split and it would not make legal sense to pursue a settlement in court. You either have to pursue the full amount or nothing. The charge is either valid or invalid there is no half way house.

 

I see you've got a few claims in the pipeline. You might want to use the payouts to fund the redemption fee.

 

There are some advantages to claiming in the fast track. You can claim legal fees against Kensington if you win so it gives you as much a bargaining tool as it gives them. It might be worth making enquiries into no win no fee arrangements. Also full disclosure is required in the county court which is something the banks seem to want to avoid at all costs.

 

But whatever you decide to do make sure you read up carefully on all the implications. Redemption fees as yet are still relatively untested. There are several claims in the pipeline - you might want to wait and see what happens. Don't forget you have 12 years to make a claim on a mortgage. So don't rush into anything!

[dinahjl]

Great advice Zoot, I will put in my claim for unlawful charges now - and when they settle, make sure there is nothing about full and final settlement - to allow me to leave the door open to claim the redemption once I have seen how the other cases progress which are already underway.

 

In the meantime - I'll talk to a local firm about a no-win-no-fee arrangment - I used to work for the Partner, so I am hopeful!

 

Thanks again for the advice - this forum is fantastic!

[genesco]

Thanks for the letter zoot, I think I will hang on and see how a few others go about reclaiming thier redemption charges back.

 

Doesn't the small claims court allow you to claim bigger amounts when you go to the moneyclaim online site.

[zootscoot]

Hi Gen

 

Money claim will invoke the same allocation process as occurs when you file a claim in court.

 

Basically if and when the mortgage provider files a defence this raises the allocation processes. The claim will be seen by a district judge who decides which track the claim will go on. There are three tracks: small claims, fast and multi.

 

The guidelines are that claims under 5,000 go to small claims, 5-15,000 go to fast and over 15,000 go to multi. There is some discretion to allow higher claims to go to a different track particularly if it is a consumer issue as the small claims is basically designed to be a consumer court. You can state your preference for the small claims court in your allocation questionnaire, but the judge will also take into account the wishes of the defendant and to be honest as your redemption fee alone is 9,000 I think you would be pretty optimistic in expecting it to be allocated to the small claims.

 

Hope this helps

 

Zoot

[genesco]

Thanks for the info Zoot, I am wondering if anyone can help with this query I have,

Basically Whilst changing my mortgage my present solicitors saw that my previous solicitors did not do their job properly, they never transfered my then leasehold property into a freehold in my name. So I had a hold up in my mortgage change which would of happened a few months earlier if there was not a hold up. I then had to pay for this to be done again, (I had already payed for it to be done by my previous solicitors) my present solicitors sent a letter to my previous solicitors stating that I would be looking for reimbursment.

After my mortgage had gone through I sent a letter to my previous solicitor but asking for these charges back along with what I paid them to do the job in the first place, but have had no response yet.

Should I take them to court and get what I am owed plus the amount I would have saved on my mortgage had it gone through earlier.

 

Can anyone be of help and is there a forum for this.

Thanking you in advanced

[zootscoot]

Hello Genesco,

 

Yes you can make a money claim in the same way you would with the bank charges ie preliminary letter (obviously not the template) giving 28 days notice of court action, followed by LBA after 14 days then money claim.

 

You can also report them to the Law Society and the OSS. If you threaten this in your first letter I would imagine they will be a little more responsive than the banks.

 

Best of luck

 

Zoot

[dinahjl]

Hi Genesco,

 

In addition to the money claim, I would suggest you should contact the Law Society, as all conveyancing firms (solicitors or not) are regulated by them.

 

I would think you can lodge an official complaint here - and if you were actually charged by them for the transfer of ownership, and they failed to refund your money having not completed this part of the work, then I would also suggest there accounts should be inspected. You are required by law, to receive a breakdown of the fees charged by solicitors when they act on your behalf and they should therefore pay for the transfer to be carried out, at their expense.

 

In addition, I would think you have a very strong case for some form of compensation and would ask the Law Society to advise on how to proceed in this regard - they are responsible for the actions of their members and should assist you in every way. If you can afford it, I would certainly get some advice before proceeding with a claim as you want to ensure you claim everything you can. Citizens Advice is a good place to start.

 

All just my opinion and experience, but I hope this helps.

[genesco]

Thanks for the info guys

[genesco]

I am now in the process of logging a complaint with the Law society.

[vicnlou]

Can anyone help? We redeemed our Mortgage in May O4. Looking on the Redemption Statement we have a redemption fee of £125, redemption interest and interest listed seperately. Can we pusue redemption interest? I take it that the redemption fee we can pursue in the small claims court?

[genesco]

I have finally plucked up the courage to send of my 1st repayment letter to kensington, I never sent the dpa as I already know how much they owe me, lets see what my reply will be.

 

wondering if anyone can advise me on this;

I am sending out a dpa to First national consumer finance- I am now aware they are called GE Money;

what address should I send my letter to;

and will it affect my new mortgage that I have recently taken out with them.

 

The old finance was through a holiday compay called GVC but i got into a bit of finance trouble and they took me to court to recover all there money and got a order on my house. I have now paid them back all their money, but would like to see if I can get some of the charges they charged me on missed payments back.

[zootscoot]

Hi Genesco,

 

A claim for charges against a company with whom your current mortgage is kept may be tricky. Whilst they can not simply close your mortgage down, you may need them to be sympathetic in the future. I'm not sure what GE money are like as regards to general sympathy in times of difficulty. Some lenders show no mercy in any event so its worth taking those on. You might want to do a search on this site for GE money and see how others have faired against them. If you do decide to proceed their address:

 

Sarah Wainwright

Data Protection Administration

GE Money

P O Box 700

Leeds

LS99 2BD

Hope this helps

Zoot

[genesco]

Hi Genesco,

 

In addition to the money claim, I would suggest you should contact the Law Society, as all conveyancing firms (solicitors or not) are regulated by them.

 

I would think you can lodge an official complaint here - and if you were actually charged by them for the transfer of ownership, and they failed to refund your money having not completed this part of the work, then I would also suggest there accounts should be inspected. You are required by law, to receive a breakdown of the fees charged by solicitors when they act on your behalf and they should therefore pay for the transfer to be carried out, at their expense.

 

In addition, I would think you have a very strong case for some form of compensation and would ask the Law Society to advise on how to proceed in this regard - they are responsible for the actions of their members and should assist you in every way. If you can afford it, I would certainly get some advice before proceeding with a claim as you want to ensure you claim everything you can. Citizens Advice is a good place to start.

 

All just my opinion and experience, but I hope this helps.

 

Hi I have now lodged a complaint with the law society and sent them all my correspondance in and am currently waiting for a caseworker to be assigned to me.

I have also contacted the solicitors in question because not only were they not reponding to my leters they also hadn't paid a fine from the inland revenue which was inccured because they never registered the freehold on time. and I am now be threaterned with recovery of money being actioned.

 

After another phone call to the firm they have now sent me a cheque for the amount witch my current solicitors charged but They haven't even offerd me compensation for distress, Shall I still wait to be allocated a caseworker from the law society as the haven't dealt with the inland revenue.

 

Graetful for any advice

[genesco]

Hi All, I have recieved my first standard letter back from kensington, saying the will give me a full repsonse within 14 days of my letter date.

 

I have finally plucked up the courage to send of my 1st repayment letter to kensington, I never sent the Data Protection Act as I already know how much they owe me, lets see what my reply will be.

[ellielou]

Hi Genesco

 

I to rec'd the standard letter from Kensington - I sent another request & rec'd a similar vague responce. I'm now debating whether to issue court proceedings - I'm keeping an eye on jamorgans thread as a claim was registered against Kensington on 19th Sept. I may wait fo rthe outcome of that. I paid £5,600 to them to get out of my mortgage early - to get that back would make a huge difference.

 

Fingers crossed & good luck.

 

Ellielou

[jamorgan]

Goodluck to all of you,

 

Recieved letter from Kennsingtons solicitor (drydens) advising me they will be

defending all of the claim £7318.32 + 658.50 Interrest

 

Bring it on i say

 

keep you posted

x

[genesco]

Hi All,

Today I recieved another letter from kensington saying:

 

"I have been thoroughly investigating all of the points that you raised.

I want to ensure that I can provide you with a suitable and complete response to your letter. I will therefore need a further seven days to fully research the issues raised."

 

John Bailey.

 

Is this a standard letter or could it be that they are not sure what to do.

Should I give them a further 7 days, or should I send out the LBA.

 

They still have 2 days to respond to my 1st request letter in full.

I never sent out a DPA as I already knew how much I wanted.

 

Any advice would be good.

[sammyjammy]

Keep to your timetable, dson't let them set it or it'll go on forever! If its time to send LBA then send it!

 

Good luck, Sam

[ellielou]

Hi Genesco

 

I received the same letter from them last week. This is the 3rd chance I've given them to supply me with figures. The 14th day after the letter will be Thursday 12th Oct. Not sure whether to register the claim after that - I'm after £5,600 and it'll cost me £250 to register. I really can't afford to lose that amount of money or more if they choose to defend. I'm hoping to hear that others have been paid out first.

 

I know I'm just bottling it

[Sue_de_Nimm]

Hi Genesco

 

I received the same letter from them last week. This is the 3rd chance I've given them to supply me with figures. The 14th day after the letter will be Thursday 12th Oct. Not sure whether to register the claim after that - I'm after £5,600 and it'll cost me £250 to register. I really can't afford to lose that amount of money or more if they choose to defend. I'm hoping to hear that others have been paid out first.

 

I know I'm just bottling it

I would say that you being unable/unwilling to shell out £250 is exactly what they are counting on. Good old Kensington.