Claiming Back Mortgage Charges. Why not?

[Blossomandebony]

There seems to be no end of people trying to claim back unlawful mortgage fees via the FOS route, but a distinct lack of those going down the court route - and I don't understand why.

 

I have put in a county court claim against my mortgage company for £3000 worth of charges. I fully expect to be refunded.

 

Their initial position was, "Our charges are fair, we aren't paying you anything," etc.

 

Now it's gone to court they have alraedy offered me £1000 back, ('without prejudice' offer, of course).

 

So, simply by putting in a simple N1 claim, I have got £1000 back. It took a few hours work and a fee of around £100. This is not difficult. So why is no-one doing it!?!?

 

Anyway, I am not accepting their offer. I want this to get to court. I want the opportunity to ask them how they work out their charges.

 

When they refuse I will be asking for a court order that insists they reveal their true costs.

 

Of course, the mortgage company won't allow the case to progress and will no doubt refund the full amount, with interest that is accruing daily, because they know they're in the wrong.

 

BAE:)

[letsdothis]

Good luck, I have just sent off a letter asking for all my charges back. More or less the same amounts as yourself. I shall be following your progess closely.

[Blossomandebony]

Thanks, Letsdothis,

 

I've received the defence now, what a load of nonsense!!

 

My next move will be to contact their solicitors and try to negotiate a settlement. I will be asking for the full amount of charges barring the court interest. This will show my good faith.

 

If they don't accept it, then the court will decide.

 

BAE

[Blossomandebony]

I've received the allocation questionnaire and I have to complete it before 18th July. I haven't contacted their solicitors to date to negotiate a settlement - next week I think I will give them one chance to settle before it goes to the court stage.

 

If they do not agree to my terms then I will be asking for a court order when I file the AQ. The order will ask that they provide details of the charging structure involved in arrears and dd charges. (And we all know they won't do that!)

 

If I can get that order I think I will be pretty much home and dry.

 

BAE

[woodentop]

Subbing

 

Good luck

[Blossomandebony]

AQ is delivered to court, with draft order for directions attached.

 

BAE:)

[Blossomandebony]

I have now received a second offer to settle - the amount has risen by £200.

 

Hence, I am now at the stage of either carrying on negotiating for the best deal for settlement or letting the court process decide. It is obvious they don't want to attend or defend - but they could be pig headed and not settle at what I ask.

 

I have a figure in my mind that I will settle at. If that is not accepted, it is going to court.

 

BAE

[Ell-enn]

Well done for taking them on, I'll be very interested to see how far they will go - hopefully they will settle in full at the eleventh hour. Good luck:)

[Blossomandebony]

Hi, Ellen,

 

I've started this thread to show just how simple it is to be successful in reclaiming mortgage charges through the courts, and to highlight the fact that these mortgage companies really don't want to end up in court with a verdict against them.

 

Unfortunately, most people seem to accept being fobbed off by their mortgage company with a tiny goodwill gesture or a stern letter to say categorically they will not be paying any charges back.

 

My mortgage company, (who will remain anonymous for the time being), said exactly that when I made the initial complaint - "We do not accept your basis for refund of charges, blah, blah, blah", then they immediately offer me a grand just because it's gone to court!

 

Making a claim is certainly not rocket science - I cobbled together a decent Particulars of Claim statement in a few hours, by simply gathering all the info available on this site.

 

The fact is these companies will only respond to a court claim, simple as . . .

 

BAE

[Blossomandebony]

I've now negotiated with the defendant's solicitors and received a further increase on what they will settle at. This is their third offer. I'm happy with the figure so will be discontinuing the claim as soon as the cheque is cleared.

 

I agree with Ellen, in that I think they would settle at the full amount just before they had to attend court. But their offer is near enough to my original claim that it makes sense to accept and avoid any further hassles.

 

BAE:-)

[delicarik123]

Well done.

 

This site has been great, but got a bit dis heartened as I seemed to be getting nowhere, however, I have restored faith and you are absolutely right, I am proceeding to the courts, surely I have nothing to lose and everything to gain.

 

Thanks for your advice, this has spurred me on

[delicarik123]

Can I just ask - within this settlement figure, did you ask for your court fee back?

[Helford]

Hi Blossomandebony,

 

I did this against the Abbey over two years ago, Abbey couldn't wait to settle in full before the court date, their 'goons' DLA Piper made all the threats about a counterclaim for £5,000 plus their costs prior - all a lot of hot air.

 

Personally, very satisfying!

[Blossomandebony]

Hi, Delcarik,

 

Yes, I did ask for my court fees back - the original claim cost approx £100, then the Allocation questionnaire fee cost £35. At the time you do think, "Is it worth paying?" and I would say 100% yes every time! Once the money's paid, the ball is in motion, so to speak, and you just wait for the fireworks . . .

 

Yes, the fees were included in our negotiations, (which were good natured phone coversations between me and their solicitor). In the end, we came to a figure we both agreed on, but it did take 2 or 3 letters and several conversations.

 

As soon as their solicitor became involved I got the impression that they wanted to settle and avoid court, the rest is history. . .

 

BAE

[Blossomandebony]

Hi Blossomandebony,

 

I did this against the Abbey over two years ago, Abbey couldn't wait to settle in full before the court date, their 'goons' DLA Piper made all the threats about a counterclaim for £5,000 plus their costs prior - all a lot of hot air.

 

Personally, very satisfying!

 

That's great to hear, Helford, well done!

 

I'm sure Delcarik will be pleased to hear others talk of their successes too. There is definitely a need for people to come forward with their success stories in claiming against mortgage companies to reassure those who have not yet made that leap into claiming through the courts.

 

Cheers, BAE

[mkb]

 

My mortgage company, (who will remain anonymous for the time being), said

 

Any chance of saying which company now its all over?

 

The fees you refer to, are these the monthly arrears fees?

 

Glad you got the result you hoped for

[delicarik123]

Yes it is nice to hear of successes. I just wish we were able to claim bank charges back too, my bank have charged me over 6000 in charges over the years, oh well, will just continue with mortgage and cap one for now

[Blossomandebony]

Any chance of saying which company now its all over?

 

The fees you refer to, are these the monthly arrears fees?

 

Glad you got the result you hoped for

 

Hi and thanks,

 

I'm waiting for the cheque to come through first. I'm not sure whether they will try to attach a proviso about not revealing the deal to third parties. I'll post details as soon as I know.

 

The charges I am being returned are monthly arrears admin fees and returned direct debit fees.

 

BAE:)

[KGF]

Dear Blossom

Great to hear of your success I am in the middle of fighting with SPML and had my claim put on hold because of the OFT V Abbey battle. I wrote to SPML saying that i was now going to re instate the claim and wondered if they would like to settle ( since they had already tried to settle earlier!) SPML solicitors have written back saying ya boo sucks OFT lost their case so take a running jump on any claim. Can I ask what templates you used or can you give me any advice as to what I should write back to their solicitors. I take it that the OFTv Abbey ruling ( which they kindly enclosed a copy of!) was purely a ruling with the banks and does not have any affect on claims for late charges etc with a Mortgage company Does any one have any wording that i cold borrow to go back to their solicitors with? I have no mortgage with SPML so am not running any risk . Grateful for any help on this one.

[Blossomandebony]

Hi, KGF,

 

I couldn't find a template for specific mortgages charges so I cobbled one together using various ideas from successful threads etc. I could post it up if you like. To be honest I didn't sweat too much on the claim form because I knew they would settle - it was a fairly simple process.

 

You can already see the the total incompetency of SPML's solicitors in the fact they are trying to use an unrelated case to warn you off! I would suggets you use their pathetic tactics against them as part of your case, and also think about a complaint to the regulatory servicesonce you have got your money back.

 

BAE

[woodentop]

WTG Blossom, excellent news. Please let us know who you took on when you are able to.

 

WT

[KGF]

Hi Blossom

 

Many thanks for this. I pretty much followed your advice and sent the letter detailed below

 

 

To SPML Solicitors

 

Thank you for your letter dated 1st September 2010 and refer to the above matter.

 

I would like to respectfully point out that my claim is in respect of Charges applied to my mortgage account. My claim is not concerning the recovery of overdraft charges on a current bank account. This claim is therefore not effected by the outcome to the OFT test case and will be allowed to proceed to its natural conclusion through the courts.

 

Mortgage charges differ to current account overdraft charges, insofar as there is a clear breach of contract. Under the terms of my mortgage I was required to make my payment by a specified date. In breach of this term I made my payments late and in consequence of this the Defendant applied charges to my account. There is thus no question of law regarding whether the charges are capable of amounting to a penalty, it is solely an issue of fact as to whether the level of charge is in fact a penalty.

 

Furthermore as there is a clear breach of contract there is no question about whether or not the UTCCR applies as it has been held to apply to default provisions in Director General Fair Trading V First National Bank plc [2002] 1 All ER 97.

 

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 SPML’s 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. The SPML 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. We would vigorously contend that this is the position regarding the fee of £XXXX which your client deemed fit to apply to our account.

 

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.

 

We believe that the charges SPML have levied of £XXXX far exceed any true cost to themselves as a result of our breaches 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 your clients have been put to as a result of our breaches, in order to reassure us that their charges really do reflect their costs.

 

We note that you make no reference to the findings of the FSA against Kensington Mortgages regarding late payment charges etc and the course of action that Kensington are now having to comply with i.e. refund and compensate their clients.

 

As you can see from the above I have carefully considered your letter and put you on notice that if you are unwilling to settle in the amount of at least £XXXX or to supply the breakdown of costs referred to in my previous paragraph, then we will apply to the Court to have our action continue against your client. You should note that the case has already passed the Allocation Questionnaire stage and will go straight to a hearing.

You should also note that I too reserve the right to refer this letter to the Judge on the issue of costs, should the need so arise.

 

I look forward to hearing from you within 7 days.

 

 

Yours Sincerely

 

 

I think I have the right tack but wondered if I had made any glaring errors. I am pretty sure they will send another fob off letter until I reinstate the court action. If I have to do that since it has been stayed since 2007 can I still add interest up until the present?

Thanks for the advice so far

KGF

[Bookworm]

Claiming Back Mortgage Charges. Why not?

 

 

A VERY STRONG WORD OF CAUTION ABOUT THIS.

 

 

Why not indeed... It's been tried, and in the odd case has even succeeded. Well done to B&E, by the way.

 

HOWEVER... Before anyone engages down that path, make sure you have read your T&Cs VERY carefully.

 

Why, you may well ask?

 

Well, because MOST mortgages will contain a term which says that YOU agree to pay THEIR legal costs, even when , and I am going to really stress this: the action is undertaken by you against them. You have basically agreed to cover their legal costs for ANY legal matter that relates to your mortgage.

 

What happened in the early giddy days of CAG is that this got missed, until some people got bitten really hard and either had to discontinue hurriedly, or even had to settle for a portion of the costs before discontinuing, because any refund of charges was minimal compared to the mortgage company's legal costs.

 

That's why CAG changed its stance on the mortgage charges being reclaimable, because as a site, they couldn't possibly encourage people to dive head first when they knew by experience that most people would just follow blindly the templates without actually having an airtight case or knowing what the implications could be.

 

In conclusion: Yes, the charges ARE reclaimable, no doubt about that, but before you go down that path, make 100% sure that it won't end up costing you more in your mortgage company's legal costs than what you'd get back in charges!!!

 

 

Edit: Here's the original post from when things started going pear-shaped. It's a must-read for anyone intending to go after their mortgage charges.

[KGF]

Hio Bookworm. yes Excellent advice and indeed it does put a bit of fear into me! No doubt SPML will use this as they are such twisters. Interestingly enough SPML did not send me their T&C's when I served them with a SAR. I do wonder however if I am not an SPML customer( and have not been since 09/05) whether I am still bound by their T&C's and therefore would this clause apply? Thanks for the warning anyway. cheers KGF

[Bookworm]

Well yes, you would be bound by them since they applied (if relevant) over the period for which you would be reclaiming. You can't have it both ways, I'm afraid, lol. I do know some people reclaimed from SPML (look for 2006 threads), but the details are now hazy in my memory, sorry.

 

Edit: Feb 2007 for when it all went tits up, check threads by gizmo111, or just do a search for SPML, and have a good read.

Edited September 15, 2010 by Bookworm