Capstone/Acenden Claim. We are joining the club.

[comebackjimmy]

Hullo All

 

Our family are joining the club of all those that have suffered under the grimy hands of Capstone/Acenden by fighting a possession claim. Here are the details:

 

1. approximate loan value £85K

2. Monthly Repayments £500

3. Claimed arrears £2500

 

We in turn have a claim against them for arrears charges. On 26th August 2011 we sent the claim letter following the template published on this site giving them 14 days to respond and asking for £3422.95 in arrears charges.

 

Almost 14 days to the day later we got the standard letter from them that they would be looking at it, so now, following the advice of this site, our next step is to issue a county court claim. I have set up the on-line service and intend to fill it out tomorrow night but I thought I would start this thread so that if any one wants to follow and or contribute then they can do so prior to my putting in the claim and I would be very grateful for all the input I can get.

 

The situation is complicated by the fact that they have started a possession claim and the hearing is set for 14th October 2011.

 

I would be grateful for any opinions anybody might have as to the likely outcome of a possession hearing where we have started a claim for more than the arrears.

 

I think the legal situation at the time will be one of the following:

 

a. They have not defended and we will be in possesion of a CCJ against them

 

b. They have defended and a hearing will be pending.

 

c. They have asked for more time and they will have a few more days to defend at the time of the hearing.

 

d. they negotiate.

 

All contributions welome.

[Ell-enn]

Hi there, have you actually paid these charges ?

 

Also, have you filled in the N11M defence form yet?

[comebackjimmy]

hi

 

The charges have not been paid as such. So far as I can understand Capstone's paperwork the entire re-possession claim is based on a sum which is made up entirely of charges applied to the account over the last three years.

 

We have not so far replied to the repossession hearing.

 

Have I addressed your questions correctly?

 

BTW thanks for piling in. It is very much appreciated.

[Ell-enn]

If you have not actually paid the arrears charges then your claim should be for them to be removed from your account.

 

If they are taking you to court for an amount entirely - or almost entirely - made up of charges, then that is what you should use in your defence statment. We can help you with the statement for court.

 

Do you have account statements showing these charges ? if so you will need to affix a copy to the defence form. Are there any "true" arrears on the account i.e. missed monthly payments?

[comebackjimmy]

If you have not actually paid the arrears charges then your claim should be for them to be removed from your account.- I presume you mean the county court claim?

 

If they are taking you to court for an amount entirely - or almost entirely - made up of charges, then that is what you should use in your defence statment. We can help you with the statement for court.- and here I presume you mean defending the posession.

 

Do you have account statements showing these charges ? if so you will need to affix a copy to the defence form.- I have got plenty from Capstone. In fact a full statement from incept to the time of the possesion claim forms part of their evidence to court. My CCJ claim is based on this but I have punched in interest claims at 8% as well. I am struggling to understand the Capstone stuff as the balance seems to be increasing despite overpayments to decrease it!!

 

Are there any "true" arrears on the account i.e. missed monthly payments?- There are missed payments. If I understand the statement correctly the bulk if not all of the arrears are made up of charges and if they did not exist our overpayments would more than cover the monthly payments due.

 

I guess I need to provide some more clarity. Let me know if I am on the right lines in my reply and ask detailed questions and I will pull out the data. I guess I could post the statements up hear as well if that would be helpful.

[Ell-enn]

If I were you I'd leave the claim for charges until after the possession hearing. You can use the charges as part of your defence and prove to the court that the arrears are not correct.

[donein]

hi Ell-enn

 

If I udnerstand it correctly, if the arrears charge is incorrect - this is basis for a defence?

[comebackjimmy]

Hullo All

 

First of all thanks for your contributions.

 

I thought I would take the time to update this thread as the story may be of use to others and, as it is still ongoing I would like to call for further comments and advice as I move forward.

 

First of all the ending, so to speak; We went to court yesterday and the result was a suspended possession order subject to overpayments being made on the account, so the pressure is off for the moment. I think this was not a bad outcome but as I complete the story I would be interested to know if I should have handled things differently.

 

Here is what happened:

 

At the end of August 2011 we sent the following CAG template letter:

 

 

 

REF: Mortgage Account Number 000000000 – Request for repayment of charges I am writing to you to request the refund of £3422.94 arrears charges which you have levied against me in respect of my account.

 

These charges had been levied against me unlawfully because they are excessive and therefore unfair.

 

I am sure that you are aware of the recent decisions by the Financial Services Authority in Deutschebank and also in Redstone. The Financial Services Authority made it very clear that mortgage arrears charges should reflect the actual cost of dealing with the arrears. It is very clear that your charges are calculated to produce a high margin of profit for you.

 

Furthermore your charges are unfair and therefore unlawful under the Unfair Terms in Consumer Contracts Regulations. Although a test case in 2009 decided that overdraft charges for personal bank accounts could not be assessed for fairness, this decision from the Supreme Court was limited to charges which form part of the court revenue of the banks. Your charges are not part of your core revenue. They are incidental to your main business and therefore they fall to be assessed for fairness. This means that they must be proportionate and that they must truly reflect your administrative costs.

 

I am prepared to sue you in the County Court if you will not repay me. If I do sue you in the County Court I shall be seeking an order for restitutionary damages and this means that you will be obliged to hand over to me all the benefit that you have had from the money that you have taken from me unlawfully.

If you are prepared to act quickly and to refund me my money without any trouble, then I will be prepared to accept the return of my money +8% interest which is the amount which would be awarded in normal circumstances by County Court or by the Financial Ombudsman.

 

Please note that I am not prepared to wait for your normal eight week delay, particualry in the light of your current repossession proceedings which is entirely predicated on unlawful charges. This is an industry time period which has been agreed with the FSA. I don't think that I would be prepared to accept your violations of FSA rules on one hand while you then attempt to rely on some FSA guideline on the other.

 

If I do not hear from you within 14 days of this letter then I will begin proceedings in the County Court and without any further notice.

 

This is the standard template with the exception of the bold part highlighting the impending case.

 

 

Story continues in following posts to keep the size under control.

[comebackjimmy]

Whoops sorry. That did not format. I'll try again

[comebackjimmy]

110826 Capstone Claim Calculation.pdf

 

OK Here is the calculation as an attachment.

[comebackjimmy]

We subsequently got a reply from them about 14 days later saying they needed more time to review our claim and a further letter saying they needed more time but would be able to respond by about 25th October some 9 days after the date of the hearing.

 

Rather foolishly we left it very late to put together our defence but we are under a lot of business pressure right now as we dispose of our business and try and keep everything together, and start new work etc.

 

Anyway I produced a witness statement as follows which is largely self explanatory:

 

 

 

I, Comebackjimmy say as follows:-

Unlawful Charges

 

1. On 26th August 2011 I wrote to the claimant asking for the return of unlawful charges and interest amounting to £3422.94. (Exhibit 1)
   

 

1. The loan is subject to the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR)
   

 

1. The Claimant is statutorily bound by Financial Services Authority regulations – Mortgage: Conduct of Business rules (MCOB) contained in the FSA Handbook, implemented under the Financial Services and Markets Act 2000
   

 

1. The mortgage fell into arrears after my business fell into difficulty. However, at various times during the course of the agreement I have over paid in order to catch up with arrears and according to my own calculations based on the claimant's figures excluding charges there have been times when I have been in positive balance.
   

 

1. The claimant levied mortgage arrears charges against me.
   

 

1. The claimant also levied further interest upon the said unlawful charges
   

 

1. The mortgage arrears charges were levied at a rate which exceeded their administrative costs.
   

 

1. The level of the charges were unfair because they breach the requirement of fairness contained in UTCCR.
   

 

1. The level of the charges is also unfair because they are the result of unfair treatment by the claimant and therefore levied in breach of the claimant's statutory duty to treat their customers fairly contained in MCOB
   

 

1. For these reasons the interest charged on the unlawful charges is also unlawful.
   
2. Exhibits 2 and 3 are letters received from the claimant asking for more time to review my claim.
   
3. I take the view that if my claim was entirely without merit it would not take anything like the amount of time it has done so far for the claimant to refute and otherwise explain why the charges are lawful and the arrears in place.
   
4. I have launched a separate County Court Claim asking for the charges to be returned as I do not have faith in the claimant's ability or willingness to address my request for their return.
   
5. I ask the court to consider the lawfulness of the charges and to note that, if as I assert, those charges are unlawful then no significant arrears currently exists.
   

Ability to Pay

 

1. The reason for obtaining the loan in the first place was in order to fund my business. Due to various trading circumstances I am unable to make it pay and am now selling the business. It is closed and no longer absorbing any of my income.
   

 

1. I have operated another business since February 2010 which now has two outlets. It is thriving. The proceeds of these businesses have largely been used to keep the first business going and are now free for me to deal with my own immediate household debts and to expand the businesses.
   
2. Should the court determine that there is arrears to pay I ask the court to accept I have the ability to pay both the mortgage and the arrears. I refer the court to my attached income and earnings statement.
   
3. I have been baffled by the claimants evidence with regard to repayments and the balance owed. It appears that even though I have over-paid the minimum amount the outstanding balance owed continues to increase.
   
4. I ask the court to re-assess the Terms of the mortgage for fairness.
   
5. I ask the court to consider the account up to date pending the resolution of the disputed charges. I would point out that it was frequently the case that, if the charges are excluded, since July 2009 I have often overpaid and the balance has at times been more than £500 in favour of the claimant.
   

 

By the time we came to court as we had not paid any instalments since June there was arrears. Acenden were calculating it at around £4K

[comebackjimmy]

So on Friday 14th October we went to court and got there early with a view to seeing Acenden's solicitor which we did.

 

In the meeting he reviewed the paperwork and was not very happy. He said the following:

 

1. We had signed a contract so the charges were lawful to which I replied that my advice (all from here!) was that they were not and I was content to let the judge decide.

 

2. In my document pack there was a copy of the CCJ claim I have started. He said what appeared to me to be an astounding thing. He said "I dont know how they can let you issue such a claim" !?! (As far as I am aware I am at liberty to issue CCJ claims as much as I like as long as I accept the costs and the consequences of losing). What can he have meant?

 

3. He said there had been a judgement in the case of Acenden and the charges were found legal. I repeated that it was my advice they were not and would be content for the judge to determine.

 

The general feel I got was that he was trying to intimidate me and was possibly flailing around a bit having just been handed everything. I just sat politely and quietly and stuck to my position, as I felt confident of the advice I have read on here.

 

However, I was not that sure of my case that I would gamble all these facts on a possession hearing and I said to him that in my view neither party ought to be keen to go before the judge and it would be better if there was a deal to be done. He said he could not agree to the claim in the CCJ and as I was not prepared to put that aside he was not sure what could be agreed.

 

I said we accepted that there was now, due to the passage of time, some arrears and I suggested we could agree to an overpayment over a period of time based on the arrears calculated by Acenden and we could let the CCJ play out.

 

To cut a long story short he went out of the room to phone the firm and came back. We came to a deal to overpay at about £100 on £4000 arrears (their figures) over about 3 years. We then went into the court and a suspended possession order was issued based on that repayment.

 

In terms of my case:

 

1. I did not ask the court for repayment over the lifetime of the loan

2. I did not ask for the court to review the terms for fairness

3. I did not ask the judge to review the case based on unfair charges.

 

As things now stand, we are overpaying for the next 3 years, pursuing the charges in the county court, and items 1 and 2 above I guess can be pursued at any time if I want to and win or lose, without the threat of possession.

 

At the time I felt it was safer to stay away from the judge as whilst I had prepared my case I felt it was stupid to gamble the home when these guys do a dozen cases a day and this is my first.

 

I don't know if I have won, drawn or lost. I might have done better or presided over a disaster. I think the battles I was going to have to fight are better fought without the risk of losing the house and the situation we find ourselves in now is a safer one.

 

So that is this thread up to date.

 

I would be very interested in the thoughts of others as to what the other parties solicitor said, and the way I have conducted this case. Should I have taken it before the judge etc, could I have done better, what are the lessons for me and others reading this thread and what are the next steps.

[newstarter]

Hi comebackjimmy i have just read your thread with intrest.Firstly as im sure your aware Acenden have an aggressive repossession policy,actively repossessing people,s homes to shorten their liabilities (mortgage book) ,using every trick in the book to construct arrears , excessive charges is just one way they do this,adding charges to the arrears which grossely inflate the figures.However your day in court was never about arrears charges,all the judge would have been concerned about would have been the arrears and what efforts you were going to make to pay it off.Okay,a switched on judge may have shown some sympathy and advised you to question the charges and make a claim to Acenden with a view to reclaiming the charges added to your account but on the day this would have all boiled down to mortgage arrears and paying it off.

 

Now,regarding the desicion,you were going to get a suspended repo order anyway due to the fact that you could not clear the arrears off immedietly no matter how much or how little you chewed the fat with other sides brief.One hundred a month on top of your contractual payment? well if you had argued your case in front of the judge you could have got it down to say 50 or 75 a month extra using Norgen case law but in my view this is just splitting hairs as you would be taking longer to clear the arrears off. So to conclude you didnt do that badly,even if their side had not have turned up you wouldnt have got much more out of the judge on the day and you still have the roof over your head.

 

Now regarding the charges,you say that most if not all the arrears are made up of charges that have been unfairly added to your account,knowing this outfit well i can beleive it.I would start with a subject access request for all info Acenden have on you and your mortgage account (and i mean everything),statements,recorded phone call transcrips,threat letters,the whole shooting match,the more you have down on paper in black and white the better.This is the first step i took when setting out to reclaim 3k,s worth of charges.It will cost you a 10 pound posdtal order and you must give them 30 days but believe me it was the best 10 pound i ever spent,tackle this first before you go any further and when the paperwork arrives have a good indepth read.

[comebackjimmy]

Thanks newstarter

 

Your post was very interesting as it seems to clarify the feeling I had that what we did and the outcome was probably more or less the best that could be expected.

 

I do already have a lot of material from them because I had a lot of material as part of their own witness statement. Indeed it was this material I used to calculate the charges.

 

Having said that a SAR is a good move and I thank you for the suggestion. To your knowledge has anyone ever got recordings? I know the Info Commissioner says recordings should be handed out but never heard of it.

Edited October 16, 2011 by comebackjimmy
Correct spelling

[newstarter]

I do know of a couple of cases where recordings have been included with the disclosure documents,in my case the written transcripts were good enough for my purpose.However you will notice that my last paragraph alluded to putting the brakes on any court action for the moment and here,s why,judges have become very hot on pre court action protocols.In other words they like to be shown that you have explored other avenues in order to settle the issue of charges before it gets to court,this is to cut down on vexacious litigants going to court at the drop of a hat.If you cannot show a judge that you have explored other avenues before going to court you could be in danger of getting the case thrown out,it wouldnt cost you much but the whole excersise would have been a complete waste of time.

 

Now,with the above in mind and armmed with the info from the disclosure pack i negotiated a 75% settlement of all charges without going to court and to be honest i couldnt have had a better result had i had my day in court thus my advice to you would be to hang fire for now until you recieve your disclosure pack.Now,onto the suspended repo order

do remember that Acenden can go straight to court for an eviction date without even letting you know should you default on the agreement to clear the arrears,and believe me this outfit are specialists at it.The repo order itself has a lifespan of six years although once the arrears are paid and normal,contractual payments resume you can pay your 80 quid and apply to get it lifted on form n244 after 6 months or so of normal payments.This would be,and was my course of action once the arrears were cleared.You dont want a suspended repo order held against your head for any longer than necessary.

[comebackjimmy]

Thanks once again.

 

I understood once a suspended repo was in place it lasted the lifetime of the mortgage. Did not know it could be overturned.

[comebackjimmy]

Hi all

 

We have now had our reply back from Acenden regarding our letter to them claiming fees and predictably they have rejected the claim in its entirity.

 

I now need to pursue the County Court claim. I would be very grateful if anybody out there can help draft the claim. Above I have listed all the charges, with the possible exception of the most recent ones if there are any, and I would like some help claiming restitutionary (if that is the correct spelling) damages.

 

Many thanks

[Ell-enn]

Have you read Bankfodder's article on claiming back the charges at the top of the Repo Forum ?