HBOS (Birmingham Midshires) - Arrears refund claim - going legal!

[removalman]

Hello,

 

A brief background: Between April 1994 and July 1999 I had a mortgage with Birmingham Midshires (subsequently acquired by HBOS). I ran into financial difficulties and incurred huge swathes of arrears charges etc. The mortgage was redeemed in 1999. Following the recent publicity regarding arrears charges now being regarded as unfair, I did a SAR request. This showed arrears charges amounting to almost £4000.00. I wrote to BM in June 2011. They ignored the letter and I wrote again in August. As they were unable to deal with the matter in sensible timeframes I issued proceedings in September.

 

Their Defence: Their in-house solicitors have written to me to suggest that I cannot rely on the recent FSA v Redstone and DB Mortgages rulings as these are "not legal authorities".

 

They also contend that this case is statute barred being over six years old as defined in the 1980 Limitation Act.

 

Opinions Sought please: So I have two questions.

 

Firstly, can I rely on the FSA rulings if this does come to court or is there alternative case law?

 

Secondly, can the statute barred rules be applied here as my assumption was that I had six years from the date that I could have reasonably discovered that I have grounds to make a claim.

 

They've offered me £725.00 to in effect "go away". I want to decline this offer but I will only be able to do that with any confidence if I'm sure of my legal position.

 

So can anyone assist me with answers to my two questions please?

 

Many thanks.

 

Removalman.

[oriental1]

I have read this with great interest. I have fallen into arrears with B'Ham Midshires, but the amount is SO TINY (£400) and they have charged me numerous charges and yesterday they sent me a repossesion proceedings letter........!!! I thought the LOVELY BANKING PEOPLE(NOT!!) supposed to be linient.

 

Can any one advise?

 

Thanks

 

Barry

[removalman]

Barry,

 

Is it just a letter or actual proceedings?

[oriental1]

Hi.

 

Its a letter "instructing proceedings"

 

Thanks

[Lea_HTH]

Hello,

 

A brief background: Between April 1994 and July 1999 I had a mortgage with Birmingham Midshires (subsequently acquired by HBOS). I ran into financial difficulties and incurred huge swathes of arrears charges etc. The mortgage was redeemed in 1999. Following the recent publicity regarding arrears charges now being regarded as unfair, I did a SAR request. This showed arrears charges amounting to almost £4000.00. I wrote to BM in June 2011. They ignored the letter and I wrote again in August. As they were unable to deal with the matter in sensible timeframes I issued proceedings in September.

 

Their Defence: Their in-house solicitors have written to me to suggest that I cannot rely on the recent FSA v Redstone and DB Mortgages rulings as these are "not legal authorities".

 

They also contend that this case is statute barred being over six years old as defined in the 1980 Limitation Act.

 

Opinions Sought please: So I have two questions.

 

Firstly, can I rely on the FSA rulings if this does come to court or is there alternative case law?

 

Secondly, can the statute barred rules be applied here as my assumption was that I had six years from the date that I could have reasonably discovered that I have grounds to make a claim.

 

They've offered me £725.00 to in effect "go away". I want to decline this offer but I will only be able to do that with any confidence if I'm sure of my legal position.

 

So can anyone assist me with answers to my two questions please?

 

Many thanks.

 

Removalman.

 

It appears that they stalled long enough with their reply to your June letter to fall inside the statute barred period. Mortgage redeemed in July 1999 - 12 years running from that date would take you to the same month in 2011. Claims for contracts under seal are 12 years from date of breach, not date of knowledge - covered by s8 of the Limitations Act.

 

But, you issued proceedings, albeit two months after the 12 year limit was reached, because they did not respond to your queries, and this would have stopped the clock (though not soon enough). That said, the court may still be prepared to hear the issue given the delay in their response to you.

 

The issue regarding the limitation and you lacking knowledge probably won't fly as it would be a simple matter of producing statements/letters etc which indicate that you were contacted regarding charges applied to your account.

 

This doesn't make it fair, or right, but it does mean they have a reasonable chance of defending, and winning, such a claim against them.

 

Your biggest hurdle is the limitation - the FSA rulings are neither here nor there if the court rule the limitation has expired.

 

I would suggest you negotiate the settlement -they are offering 725, ask for a sum you feel is reasonable and be prepared to negotiate downwards or continue with the proceedings with the risk of it being struck out.

[newstarter]

Our mortgage is with B.M and i know for a fact that when you are in arrears they load charge after charge onto your acount.After the eviction order was set aside i sat down and calculated the total charges and added intrest on our acount and it come to 3k .Now,we were offered a paltry 600 quid back which i refused and i did go to court,there i agreed a settlement of 2,700,however a word of warning if you do decide to take it further,make sure your figures are correct to the penny else you will have no chance,do not allow for any discrepancy whatsoever.You say you are owed 4k,thats alot of money owed to be saying "ok i,ll take 600",i know the house has gone,but if the shoe was on the other foot and there was a shortfall you could bet B.M would have come after you,in fact i know they would.Now,although im loath to say this i agree with the above that you would be taking a chance due to the fact that you are out of time,however due to B.M dragging their heels over replies i would be tempted to call their bluff on this and see if you can get a settlement further down the line,either way i wouldnt be accepting anything less than 1k minimum.

[removalman]

Your biggest hurdle is the limitation - the FSA rulings are neither here nor there if the court rule the limitation has expired.

 

 

 

Many thanks for your reply Lea_HTH.

 

Assuming I can get the limitatation issues resolved, do you think the FSA rulings would stand up to scrutiny in a Court?

 

Regards,

 

Tony.

[Lea_HTH]

FSA rulings aren't binding - but they can be persuasive.

[Lea_HTH]

By that I mean that whilst the county courts can take the rulings into consideration, they are not bound to follow them, like they would be, for example, bound to follow a Court of Appeal ruling.

[removalman]

Thanks for that. Of course the obvious next question I should perhaps be asking is has there been any cases for refund of mortgage arrears fees that have actually come to court and if so are there a number of successful outcomes that could be potentially quoted?

 

 

Is that sort of information available?

[Lea_HTH]

Thanks for that. Of course the obvious next question I should perhaps be asking is has there been any cases for refund of mortgage arrears fees that have actually come to court and if so are there a number of successful outcomes that could be potentially quoted?

 

 

Is that sort of information available?

 

They'd generally be small claims in the county court and therefore not reported. Plus they are not binding on any court.

 

In the vast majority of cases, if charges are repaid, it'll be outside of court with a confidentiality agreement attached to it.

 

Cases binding on the courts would need to be at appeal level.