SPML, Capstone, Ascenden - Reclaiming Charges

[philread1]

Thanks for your help, Citizen.

 

This is what I have put together so far, and it fits within the parameters given on the claim form:

 

"We have had mortgage account no.xxxxxxxxxx

with the defendant since xxxxxx. We

are claiming £xxxx taken by the defendant

in the way of unlawful charges since

xxxxxx. The defendants charges are a

disproportionate penalty and therefore

unenforceable as they are contrary to common

law. Further, as a disproportionate penalty

they are invalid under the Unfair(Contracts)

Terms Act 1977 s.4 and under the Unfair Terms

in Consumer Contracts Regulations 1999,

Para.8 and sch.2(1)(e). In the event that the

charges are not a penalty then they are

unreasonable within the meaning of the Supply

of Goods and Services Act 1982 s.15. We have

repeatedly asked the bank to justify their

charges but they have declined to do so.

Limitations Act for mortgages is 12 years."

 

Comments, suggestions and opinions are very welcome????

 

Cheers,

Phil

[SabreSheep]

The law being used to reclaim the charges is the same I believe as those used to reclaim CREDIT CARD charges

 

Have a look at some of the credit card charges reclaimed threads that have been successfully or "probably" successfully concluded.

[philread1]

Thanks, SabreSheep.

 

I'm constantly reading through different threads, and as I said before, I have previous experience of successfully reclaiming bank charges from Abbey National a number of years ago. I was using this previous experience to help me complete the PoC for this new claim, but was unsure if there were any legal differences between the different sorts of charges being reclaimed. As far as I can see it, the points of law being used in any reclaiming process seems to be the same whether its bank charges, credit card charges or mortgage charges.

 

The only point of law I'm unsure of is the Limitation Act 1980, and how it is applied to our claims. As some of my charges are from 2005, I really want to make sure I fully understand it?

 

Please see my new PoC below. Again, all comments much appreciated. I'm hoping to get this claim off within the next couple of hours, so be quick!

 

Cheers

Phil

 

PS There is only so much space on the claim form on Moneyclaim Online!

[philread1]

Updated Particulars of Claim:

 

"We have had mortgage account no.xxxxxxxxxx

with the defendant since xxxxxx. We

are claiming £xxxxxxx taken by the defendant

in the way of unlawful charges since

xxxxxxx. The defendants charges are a

disproportionate penalty and therefore

unenforceable as they are contrary to common

law. They are therefore deemed invalid under

the Unfair(Contracts) Terms Act 1977 s.4 and the

Unfair Terms in Consumer Contracts Regulations 1999,

Para.8 and sch.2(1)(e). In the event that the

charges are not a penalty then they are

unreasonable within the meaning of the Supply

of Goods and Services Act 1982 s.15. We have

repeatedly asked the defendant to justify their

charges but they have declined to do so. This claim is

being made under s.32(1)© Limitations Act 1980."

[philread1]

Hello,

 

I've just realised that my claim isn't being made under s.32 of the Limitation Act, as that is used where there is a 'mistake in law'.

 

Can anyone point me in the direction of the section of the Limitation Act which deals with the recovery of money secured by a mortgage?

 

I have pinpointed it to be s.20(1)(a)?? Can someone confirm this?

 

Thanks.

Phil

[SabreSheep]

The mistake in law is that they were unlawfully taking charges.

 

Also. BANK CURRENT ACCOUNTS are not covered by the same scope.

 

You will want to issue your claim via post to the CCMCC as the poc will not fit.

[philread1]

Mortgage charges or secured loans are dealt with under a section of the Act on their own, though, (section 20) without using the 'mistake in law' (section 32), aren't they?

 

Gutted I've gotta do PoC by post though, and didn't know that they would be much different to that of bank current accounts which is where I got the above from

 

Back to the drawing board I suppose.

[SabreSheep]

Not sure on the statute of limitationd as for your case. Flag your post and ask for site team imput maybe?

 

Dont be gutted. Be glad your getting it right b4 sending

[philread1]

Just found what I wanted.

 

If the charges/penalties have been added to the principle amount borrowed, then Section 20 covers you. If they have been kept separate, then your claim comes under Section 32.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?52020

 

Am gonna keep reading......

[philread1]

Can anyone post me a link to a template to enable me to complete my 'Particulars of Claim' for reclaiming excessive mortgage charges/penalties?

 

Thanks.

Phil

[philread1]

This is my 'Particulars of Claim' that I am about to send in. Sabre has mentioned that I need to claim via post, but am not sure I need to as the main points and 'points of law' to my claim are here. Any other comments or suggestions would be useful?

 

"We have had mortgage account no.xxxxxxxxxx

with the defendant since xxxxxx. We

are claiming £xxxxxxx taken by the defendant

in the way of unlawful charges since

xxxxxxx. The defendants charges are a

disproportionate penalty and therefore

unenforceable as they are contrary to common

law. They are therefore deemed invalid under

the Unfair(Contracts) Terms Act 1977 s.4 and the

Unfair Terms in Consumer Contracts Regulations 1999,

Para.8 and sch.2(1)(e). In the event that the

charges are not a penalty then they are

unreasonable within the meaning of the Supply

of Goods and Services Act 1982 s.15. We have

repeatedly asked the defendant to justify their

charges but they have declined to do so. This claim is

being made under s.32(1)© Limitations Act 1980."

[SabreSheep]

here is a credit card reclaim template. few bits may not be upto date.

 

Adapt it to suit your requirements and post your new draft here

 

------------------------------------

PARTICULARS OF CLAIM

 

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around xx/xx/xxxx, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxx xxxx xxxx xxxx ("The Account").

 

2. The Agreement essentially consisted of the Defendant providing the Claimant with a credit card (“The Card”) which would allow the Claimant to make purchases and receive cash advances on credit. In return the Defendant was entitled to charge interest at the published rate.

 

3. The Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974.

 

4. At all material times the contract was subject to the Defendant’s standard terms and conditions which could be varied from time to time.

 

Summary

 

5. 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 for exceeding the credit limit and or if a payment is returned. (Full particulars are set out in schedule 2).

 

6. 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

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

 

 

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

 

The Charges

 

 

8. The standard Terms of the Agreement in substance provided as follows:

(a) The Defendant would provide the Claimant with the Card. The Claimant was entitled to use the Card to make purchases and receive cash advances up to a credit limit (“the Limit”) set by the Defendant. The Defendant could unilaterally change the Limit by giving the Claimant notice in writing.

(b) The Defendant was entitled to charge interest on the purchases and cash advances at the published rate.

© The Claimant was to pay the minimum payment of 3% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

(d) The default charges Apr xxxx – Jun xxxx were £xx.xx, Aug xxxx – Nov xxxx was £xx.xx & Jun xxxx was £xx.xx.

 

Penalty

 

9.The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Bank in relation to the Claimant’s transgressions.

 

10. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

The Regulations

 

 

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

 

13. 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.

 

14. 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.

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

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

(3)The Charges exceeded the costs which the Bank could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

(4) 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.

(5) As the Bank 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.

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

(7) In the premises, 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.

15. 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 relies on the following matters.

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

(2) 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).

(3) The Charges are correctly described as default charges by the Defendant in the key information provided to new customers.

 

16. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

 

17. The Defendant wrongly applied Charges to the Account totalling some £xxx.xx between xx/xx/xxxx and xx/xx/xxxx. Particulars appear from Schedule 2.

18. On xx/xx/xxxx the Claimant demanded repayment of the sums wrongly applied.

 

19. The Defendant has not repaid them or any of them.

 

And the Claimant claims;

 

(1) A declaration that the sums totalling £xxx.xx have wrongly been applied to the Account. These charges are older than the normal 6 years but are claimed by virtue of s32 (1) c Limitations Act 1980 as per Kleinwort Benson v Lincoln City Council.

 

(2) Payment of the said sum of £xxx.xx and interest in restitution of £xxxx.xx as per Sempra Metals v Inland Revenue Commissioners.

(3) Interest under section 69 of the County Courts Act 1984 at the rate of8 % per annum on the amount claimed (daily rate of £x.xx) until judgment or sooner payment.

(4) Court costs of [ xxxx].

I believe that the facts stated in these particulars, comprising of x pages, are true.

[citizenB]

SabreSheep has posted something for you to adapt as well.

 

 

 

Simply adapt a PPI/Unfair charges POC...obviously edited to suit mortgage purposes

[citizenB]

http://www.consumeractiongroup.co.uk/forum/showthread.php?390026-Mortgages-Reclaiming-Charges-**Correct-as-at-October-2013**

 

Draft letter from the CAG library which might help as well.

[philread1]

Just to update you all, I've been given a court date of 30th September to hear my claim, but with a note that we should be encouraged to try to settle the claim without the need to go to court.....

 

Lo & behold, the solicitors representing Southern Pacific Securities (Ascenden, Capstone etc.) have been in touch by email this morning to try and resolve the case without the need to go to court!!!!!

 

Here we go......

[philread1]

Just another update - I'm in mediation with Southern Pacific's legal team trying to thrash out a settlement at present. Let's hope it works or the Court Bundle & Court Hearing Fees will be sent first thing Monday morning!!!

 

Wish me luck!

Phil

[dx100uk]

Great news

Don't let them grind you down...ever

 

Dx

[l.capo]

Any update philread1?