Claiming Back Mortgage Charges. Why not?

[Blossomandebony]

For those uncertain of taking court action,for whatever reason, there is, of course, the route of complaining to the FOS. There is no risk attached to this method and you will not have to face a judge. For some people this will be their best route.

 

Providing you can show that the mortgage company have been charging you whilst you have been making regular and substantial payments, (perhaps to cover arrears), you have a very high chance that the FOS will judge in your favour. However,this is just for the monthly arrears fees they add on, not for ERCs or DD return charges - they will rule against you on these.

 

For those who are worried that their mortgage company might actually have the nous to take you on at court and claim legal fees by way of the contract you signed, you may be able to cover yourself by getting home insurance with legal fees cover. Indeed, you may already have it and don't realise!

 

If you scan your home insurance you may find you are covered for certain legal fees - but obviously check by phone and letter first - then get something in writing before you start the claim. I know my insurance covers some legal expenses but so far I've never needed it.

 

BAE

[Blossomandebony]

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.

 

 

 

This is a very misleading statement, unfortunately.

 

A far higher proportion of people who have took the court route have succeeded than failed, FACT -you only have to look around this site to understand that, (and that's with all the successes which have been hushed up by confidentiality clause inserted by the Mortgage lenders' solicitors!).

 

So to state, 'the odd case', which implies that successes are rare, is totally wrong.

 

To be cautious? Yes.

Do your homework and research the claim? Of course.

I would never suggest attempting to put in a claim you were not confident in following through on.

 

But never, ever count out the court route if you want justice, that's what they're there for isn't it?

 

BAE

[wishboneash]

hi there i am using a claims company i got stuck w ith £3500 pounds of charges went to fos and sent a vague letter back saying it was unfair to add charges to mortgage but 100o pounds was a resonable offer from gmac rfc

from 201 15 pounds n dd and fifty pounds a moth till 2008 charges at one point taken to court too tried to pay back and fell in arrears again because car engine went so had to get another car

then i was paying nearly 10 % intrest

 

let us know what you did for court

[wishboneash]

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.

 

 

any one using a unfair mortgage clain company

[wishboneash]

any used a unfair mortgage company

[wishboneash]

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:)

 

how are you getting on thanks paul

[Blossomandebony]

Hi,Paul,

 

I accepted the third offer I received from the mortgage company's solicitors, which was not quite as much as I hoped, (I had claimed contractual interest), but was a good result overall. I didn't have to go to court and I got my money back. There were no costs to pay either.

 

Initially, the mortgage compantyput in a defence, but they obviously had no intention of carrying through with it as a succession of offers to settle followed!

 

So from my perspective the process was simple and effective.

 

I have posted a similar POC to the one I used, on another thread. I'll be happy to help if you want to go down this route and I know there are lots of others trying it too.

 

BAE

[wishboneash]

ok worth a try if a get back another 500 pounds i will be happy thank you paul

[AnimalMagic]

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.

Surely this is an unfair term under UTCCC?

[nicolee2931]

Surely this is an unfair term under UTCCC?

 

Yes indeed it is and a base I intend to cover when I claim back my charges from Acenden, the ask for it back letter gets sent Saturday.

 

If it gets to court I have to intention of paying their fees and I ain't going to quit until I get every last penny they have taken from me with interest.

 

These are a ruthless bunch of cowboys and I will give them the same respect they have given me.

[wishboneash]

anty one else claiming

also for unfair charges

[nicolee2931]

Letter sent today to Acenden recorded first class, the claim is calculated at just over 3000 pounds, a little more wth interest.

 

So lets wait and see if they want to play hard ball.

[acerbic]

Subbing with interest, can you post up the template for the letter, I'm helping someone who'd be very interested in this letter. They'd be looking at 6-7K, so well worth doing.

[wishboneash]

Letter sent today to Acenden recorded first class, the claim is calculated at just over 3000 pounds, a little more wth interest.

 

So lets wait and see if they want to play hard ball.

 

good luck mine is around 3500 pounds

i took mine up with a claims firm very poor offer

[Blossomandebony]

Yes indeed it is and a base I intend to cover when I claim back my charges from Acenden, the ask for it back letter gets sent Saturday.

 

If it gets to court I have to intention of paying their fees and I ain't going to quit until I get every last penny they have taken from me with interest.

 

These are a ruthless bunch of cowboys and I will give them the same respect they have given me.

 

Very good point, Animal Magic and Nicolee!

 

Below is a basic frame for making a claim. Obviously it will have to be adapted to suit circumstances, but it worked for me.

 

The N1 claim form part will be quite simple,something like:

 

This is a money claim for the return of charges and associated interest applied to the Claimant's mortgage account, number XXXXXXXXXXXX by the Defendant.

 

Now for the Particulars of Claim:

 

Below is a template which you can adapt to your circumstances - copy, paste, edit!

 

 

 

 

 

IN THE XXXXXX county court

 

 

BETWEEN

 

 

 

XXXXXXXX

 

 

Claimant

 

 

 

 

 

and

 

 

 

Name of Mortage Company

Defendant

 

 

 

 

PARTICULARS OF CLAIM

 

 

 

 

 

The Agreement

 

 

1. The Claimant entered into an agreement with the Defendant on X/XX/XX, whereby the Defendant advanced a sum to the Claimant under a mortgage account, Account no XXXXXXXX

 

Summary

 

2. Throughout the course of the Agreement, the Defendant has added numerous default charges to the Account for the Claimant’s failure to make the minimum payment on the due date and / or if a payment is returned. (Full particulars are set out in the attached schedule of charges sent to the defendant on XX/X/XX ).

 

3. The default charges were applied in accordance with the standard terms of The Agreement, which were:

 

a). A penalty payable on breach of contract and thus unenforceable: and or

 

b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Claimant.

 

4. The Claimant is accordingly entitled to repayment of the sums wrongly added to the Account.

 

 

The Charges

 

5. The Charges consisted of various amounts of £XX, £XX and £XXX. For each of these charges, the defendant merely sent out one electronic letter to inform the claimant of the charge, which I estimate at costing approximately £1.00.

 

(Add any further details here on what the mortgaeg company actually ‘do’ when you’re in arrears, eg phone call, letters. You are basically attempting to prove that their costs are much lower than the charges!!!)

 

6. The amount of the Charges exceeded any genuine pre-estimate of the damage that would have been suffered by the defendant in relation to the Claimant’s transgressions. This is confirmed in law in the case of Castaneda and others vs Clydebank Engineering and Shipbuilding Company. Ltd. (1904) when the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract. This was confirmed in Dunlop Pneumatic Co vs New Garage and Motor Co. Ltd. (1915), which held that a penalty clause is void in its entirety and therefore unenforceable.

 

7. Therefore the Charges were punitive and a penalty and thus unenforceable at common law.

 

 

 

 

 

The Unfair Terms in Consumer Contract Regulations 1999,

 

8. At all material times the Claimant was a consumer within the Regulations.

 

9. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Claimant.

 

10. without prejudice to the burden of proof, the Claimant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

 

(a)The terms relating to Charges were standard terms; they would not be individually negotiated.

 

(b)The Charges were a penalty for breach of contract.

 

©The Charges exceeded the costs which the defendant could have expected to incur in dealing with late payment or returned payment.

 

(d) Accordingly the Charges were a disproportionate charge incurred by the Claimant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

 

(e) As the Defendant knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

 

(f) As the Defendant knew, the Claimant had no means of assessing the fairness of the Charges.

 

(g) Hence, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Defendant in a way which was inequitable.

 

11. without prejudice to the burden of proof, the Claimant will contend that the terms imposing the Charges are not core terms under regulation 6 of the Regulations, and will rely on the following matters:

 

(a) The assessment of fairness does not relate to terms that define the main or core subject matter of the Agreement.

 

(b) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).

 

12. By reason of the said matters the terms were not binding under regulation 8 of the UTCCR 1999 Regulations.

 

13. The Defendant wrongly applied Charges and interest to the Account, estimated at totalling some £ XX.XX between X/X/X and X/X/X. The defendant attaches a copy of the schedule of charges sent to the defendant on X/XX/XX.

 

 

 

The claimant’s attempts to settle the dispute:

 

 

14. On, XX/X/X, XX/X/XX and X/XX/XX, the Claimant requested repayment of the sums wrongly applied. (put details of their response here)

 

 

In Conclusion:

 

15. Therefore the Claimant claims:

 

(a) Payment of the said sum of £XXX.XX plus the amount of interest accrued between XX/XX/XX(date of first ever charge) and X/XX/XX,(date of last charge), which the claimant estimates at £XX.XX. Total £XX.XX

 

(b) Interest of £XX.XX, pursuant to the County Courts Act 1984 (s69) at the rate of 8%, and claimed up to X/X/XX, and thereafter at the daily rate of £X.XX to the date of judgement or sooner payment.

 

© Court costs.

 

 

 

 

I believe that the facts stated in these particulars are true.

 

 

 

 

Dated

 

Charges £xxx.xx

 

Interest on charges £xxx.xx

 

Interest at 8%, under s.69 County Courts Act 1984 £xxx.xx

*(and at a daily rate of £x.x until date of judgment)

 

TOTAL £ xxx.xx

 

Some may wish to add a whole new paragraph to the POC regarding the recent FSA fines etc, if your mortage company was involved. You should also put in an extra paragraph to cover yourself over legal fees, as Animal Magic and Nicolee suggested.

 

BAE

[AnimalMagic]

I am not sure that this will be sufficient as post 23 warns. If you have such a clause they will charge you for their costs regardless. You need to show the courts why they shouldn't or can't (legally).

 

I am not sure UTCCC will help you here. Maybe s140A CCA 1974 unfair relationship, or FSA regulations depending on date mortgage was taken out? I think there is a CPR which you can force the court to look at costs. Anyone able to help with this?

[wishboneash]

good luck gmac fleeced me big time

[iconoclash]

Hi - mortgage companies are just the same as all the other lenders - stitch up customers right left and center - some more companies have been fined recently over their treatment of customers. GMAC already fined and ordered to pay back all sorts of costs - I am still arguing this one myself as our mortgage was GMAC and the new servicing companies seem to think, wrongly, that it doesnt apply to them - it does! good lcuk

[HomerJSimpson]

I am not sure that this will be sufficient as post 23 warns. If you have such a clause they will charge you for their costs regardless. You need to show the courts why they shouldn't or can't (legally).

 

I am not sure UTCCC will help you here. Maybe s140A CCA 1974 unfair relationship, or FSA regulations depending on date mortgage was taken out? I think there is a CPR which you can force the court to look at costs. Anyone able to help with this?

 

I believe that post 23 is seriously mis-advised.

 

S140a and b of the CCA will definately help claimants, as long as these sections of CCA are relevant to the dates of the mortgage. (Are S140a and b of CCA applied retrospectively?), as will MCOBS regulations. Not sure what the date of taking out the mortgage out has to do with anything. Surely the dates the mortgage was in force are more relevant. However UTCCR Regs will still help a claimant as charges are challengeable per Regs 5,6 and 8. Charges may also have been misrepresented, and the penalties aspect of these charges could well still be open to determination.

[iconoclash]

Hi - http://www.financial-ombudsman.org.uk/publications/technical_notes/mortgages-early-repayment-charges.html

heres a link to what the FOS say about mortgage charges - might be helpful

[DemandFairness]

Hi Blossomandebony,

 

Fantastic reply and help. I hope to use something similar when claiming back my own charges from different providers.

 

When I reply, is that an automatic subbing to this thread or do I have to do something else, as I can't find a "subscribe to thread" button?

 

DemandFairness

[AnimalMagic]

I believe that post 23 is seriously mis-advised.

 

S140a and b of the CCA will definately help claimants, as long as these sections of CCA are relevant to the dates of the mortgage. (Are S140a and b of CCA applied retrospectively?), as will MCOBS regulations. Not sure what the date of taking out the mortgage out has to do with anything. Surely the dates the mortgage was in force are more relevant. However UTCCR Regs will still help a claimant as charges are challengeable per Regs 5,6 and 8. Charges may also have been misrepresented, and the penalties aspect of these charges could well still be open to determination.

S140A applies to mortgages prior to regulation, i.e. Oct 2004. Post Oct 2004 is covered by FSA (as you say). The transitional provisions allow for S140A to apply as long as the unfairness manifests after 2008, when the legislation came into force.

 

As far as UTCCR Regs are concerned I am sure I have seen a judgement where the term allowing legal fees to be charged to consumer was judged as fair as it did not preclude the consumer from actually taking action. Can't find the reference just now. Pity someone from the site team can't chip in with some help...

 

When I reply, is that an automatic subbing to this thread or do I have to do something else, as I can't find a "subscribe to thread" button?

Look under 'thread tools' top right hand of thread.

[Anna67]

hi can i claim my fees back as i settled my mortgage in 2007 in full plus over 2000 in chages ect they tried to repossess it but i sold my car and took a loan to pay arrears so i could sell

[Blossomandebony]

Hi, Anna,

 

Certainly you can still claim your charges back - and when you add the interest it will come to a good amount. Which mortgage company is it?

 

BAE:-)

[Anna67]

Hi Blossomandebony thanks for replying it was with the (chelsea )i sold the property and paid them off in 2007 but they charged me so much in charges and solicitor fees as they tried to re possess my property