advise on HBOS court error please

[Thewigster]

Morning all.In october a repossesion order was granted by county court for a house i owned.

 

When we were at court the person representing halifax presented his figures to the judge (£81.203.20) which included in the particulars of claim "any adjustment for early settlement" I was given 56 days to vacate.

 

Within this time period i managed to find a buyer, as i agreed a sale price of £87.500, which would cover the amount owing and leave me enough for moving costs etc.When my solicitors requested the final settlement fee, halifax decided to add £3669.40 in early repayment fees.

 

When i questioned this, their reply was that in the terms and conditions etc, if i wish to settle my morgage at any point then a fee is payable.

 

Having spoken to FSA and fos i logged a formal complaint, and the findings by the F.O.S were that the figures were misleading, but could not recommend the halifax refund the full amount.

 

Is it appropriate to use moneyclaim or would i be better off going back to the court that granted the possesion order?Thanks for any help in advance

Edited December 27, 2012 by citizenB
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[citizenB]

I would think they probably arent allowed to add on anything to the original Judgment debt.

 

I would wait until andyorch can look in on you as to what route you should go.

 

I will flag for his attention.

[bhall]

Hello

 

It maybe the case that the figure provided to the Court of £81,203.20 did not include any applicable early repayment charge. Lenders in repossession cases, I believe shouldn't apply erc's.

 

However, from what you have said you repaid the mortgage through a sale of the property. As the mortgage was repaid as a result of a sale (albeit as a result of pending possession) and not as a result of possession any erc would more than likely be payable.

 

Was you on a fixed, discounted etc etc rate where an erc was applicable ?

 

Does your mortgage agreement refer to any such erc ?

Edited December 27, 2012 by bhall

[BankFodder]

I should gp basck to the court quickly. Tell the judge that they are committing an abuse of process and also that they are estopped from claiming any more. Read up on estoppel

[AndyOrch]

I personally would not start a separate action for this..but refer to the ongoing claim.Do the T&Cs allow for this charge?

[Thewigster]

hi thanks for the replies. I was on a fixed rate of 6.49% due to expire in 2015.I have spoken to and formally complained to FOS who after concideration of the matter decided that halifax should award me £250 in "damages" for the distress i had suffered. they agreed to this 2 weeks ago.My argument as i said in 1st post is that the figures quoted, in the particulars of their claim were £81.203, and it plainly says in black and white that this amount takes into concideration any amount for early settlement and legal fees payable.I did write to the court and the reply i got was that the judge had read my letter and i should make an application. But how can i issue an application for dispute of incorrect figures included in their particulars ??

[bhall]

I should gp basck to the court quickly. Tell the judge that they are committing an abuse of process and also that they are estopped from claiming any more. Read up on estoppel

 

What about the doctrine of contractual estoppel - "Where parties had agreed to enter into a contract on a certain basis, they could not then claim at a later stage that the reality of the situation was something different"

 

The OP has confirmed the mortgage agreement (contract) was entered into on the basis of being subject to a fixed rate until 2015. As such it is more than likely that a condition of that contract was that if it was redeemed prior to 2015, an erc would apply.

 

Can the op please confirm if the additional £3,669.40 represents any contractually agreed and accepted early repayment charge.

 

It may also be relevant that the mentioned proceedings would not have been for a monetary judgement of the court but rather for an order for possession.

[Thewigster]

hi bhallAs i origionally said, the argument is the fact that in the particulars of claim, it clearly states that the figure does include " any adjustment for early settlement" (6c)It seems to me that HBOS have come unstuck because what has happened is they never expected me to sell, seeing as i had the house on the market for 8 months prior to the hearing , and as you said earlier they arent allowed to apply ERC's to repossesion cases as in effect i didnt choose to repay early.

[bhall]

Hello Thewigstar

 

In terms of applying the erc in possession cases, Some lenders waive the early repayment charge when the mortgage is repaid following the property being taken into possession – but this not a specific requirement of the "MCOB rules".

 

In considering possession issues, the FOS would look at all aspects of each case in line with what they consider is fair and reasonable – and taking into account issues relating to financial hardship.

 

However, as I said in my previous post whilst possession proceedings were commenced by the lender, it would appear from the information that you have posted that the lender never actually took possession, instead as a result of the proceedings you sold the property and used the funds to redeem the mortgage whilst it was subject to an erc.

 

This may appear that I am splitting hairs however, I feel this difference would be very significant in any legal proceedings you may decide to commence to reclaim the erc.

[Thewigster]

Hi bhall.Thanks for that reply. yes you are correct in saying that the morgage was redeemed before hbos actually took possesion and evicted me, however the fact still remains that the possession order was somehow in my opinion, and that of the solicitor that dealt with the sale, a money judgement too.Realistically what i done was the property to a friend for the amount i was led to believe was owing plus expences for moving etc.My main priority was to avoid reposession for obvious reasons, but it apperars now that i may of been better off letting hbos carry on and sell it, then i would of avoided erc as i never repaid.let me know your thoughts cheers

[bhall]

Hello

 

To be honest I think what you did was the best thing for you that you could have done.

 

If the lender had taken possession there is a possibility that you may have incurred further charges to sell the property and that in the end it may have been sold at an auction for an amount lower than the amount owed.

 

Had this happened you may not have had to pay an erc but you would have more than likely been left with a mortgage shortfall, which the lender would then chase you for.

 

I personally don't agree that you should in the circumstances you described should have had to pay an erc.

 

However, unfortunately my personal view means nothing as the erc would have been detailed in the mortgage agreement and the mortgage was redeemed through repayment rather than possession.

 

As far as I know, challenge to erc's in Court have been and as detailed on this site been unsuccessful. You could try the FOS route, as it is free and you have nothing to lose, as clearly you sold the property as a result of the possession proceedings and effectively forced to sell the property, earlier than you had wanted.

[Thewigster]

hi bhallI have been to and complained to FOS who agreed that the way halifax acted was not correct and instructed them to pay me £250 in "damages" to which they agreed, being full and final settlement. this to me is an admittance of error. whats your opinion?

[Thewigster]

any other help or opinions welcome please