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Having succesfully reclaimed £15000 in charges from the Halifax earlier this year, I am goint to pursue GMAC & BM for return of their charges and ERC. I have today written to GMAC requesting £2100 in unlawful fees. Still awaiting statements from BM. Once i have a satifactory conclusion to the fees I will seperately claim for the ERC. Watch this space!!

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UPDATE

 

Gmac replies stating the usual that the charges are in line with etcetc so LBA sent.

received BM bundle today and have sent initial letter requesting £1137.76 in charges

 

November 10, 2006

 

 

Re: ACCOUNT NUMBER: xxxxxxxxxxxx Request for repayment of charge

 

 

Dear Sir/Madam ,

 

Our request

 

We are writing to ask you to refund the charges which you have levied from our account in respect of late payment fees, and other unlawful fees to the sum of £1137.76, this figure does not include the contractual rate of interest applied by yourselves in respect of the said charges (Please find enclosed schedule of charges detailing dates, amounts and interest). We now understand that such fees are unlawful at Common Law, Statute and recent consumer Regulations.

 

In the case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract as oppose to a charge which represents a penalty. This law was confirmed and upheld in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79. A charge will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable.

 

In addition your charges appear to represent an unfair term of contract which is contrary to the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). Our account falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as we are consumers. Your charges constitute an unfair penalty under Schedule 2 of the said Regulations which provide an indicative and non-exhaustive list of terms which may be regarded as unfair. Under paragraph 1(e) of schedule 2 this specifically includes terms which have the object of requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation. We would vigorously contend that this is the position regarding the fees which you deemed fit to apply to our account.

 

We believe that the charges you have levied of £1137.76 for late payment return of debit fees and other legal fees far exceed any true cost to yourself as a result of our breach and any genuine pre-estimate you could conceivably reach. If you disagree, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put to as a result of our breaches, in order to reassure us that your charges really do reflect your costs.

 

 

 

Your responsibilities

 

We would draw your attention to the terms of the contract which you agreed to at the time that we took out the loan. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

We are frankly shocked that you have operated our account in this way as we had always reposed confidence in your integrity and expertise. We consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived us into agreeing to pay them. Your concealment of the true nature of your charges has prevented us from asserting our rights until now.

 

 

 

Our targets to resolve this matter

 

We really hope that this matter can be resolved amicably and without the need for redress to the courts. If this were to happen there would be the interest at 8% pa to be added which amounts to £249.61. Also the figures do not include the contractual rate of interest applied by yourselves in respect of the said charges Thus we are asking that you refund the charges which have unlawfully been levied on our account. Failure to refund all the money unlawfully taken from us will result in us taking further action. We will give you 14 days to reply accepting, unconditionally, our request in principle and letting us know a date by which we will receive payment. If you do not respond, or you do not respond positively, within this time period, we shall send you a letter

before action giving you a further 14 days in which to reflect. We believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.

 

Furthermore, I shall submit a Consumer Credit Act 1974 complaint to the OFT upon the basis that you have failed to comply with the OFT's direction of 5 April 2006 and are therefore not a 'fit and proper person' to hold a consumer credit licence under the 1974 Act.

 

You also have a duty to your shareholders to act in a financially prudent manner. Therefore I would consider it financial mismanagement should you let this matter go as far as the small claim courts, then you settling without defence.

 

However If you disagree, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put to as a result of our breaches, in order to reassure us that your charges really do reflect your costs.

 

 

 

Yours faithfully,

 

 

 

 

 

 

Martin & Jane Johnson

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Martdj

Good luck mate i hope you get on well.

I have been after gmac (seems like forever) for a while now their deadline for repayment of ERC+charges was up on 27-10-06, i am just waiting on a letter from DWP/I.S. to state i am in reciept of Income support (to enable me to have fee's waivered) so i can go ahead with the court papers.

 

Keep us informed please!

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  • 3 weeks later...

must have been reading mymind Zoot because ive just managed to persuad BM to offer me all my charges MINUS conditions attached to its acceptance after three letters. So juts be careful they dont want you to sign the offer with conditions attached as they appear to have done with everyone else

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This is great news cause I am planning on selling my house in Jan 2007 to avoid the ERC but I will be claiming all the charges I have received in the past 2 years as soon as I am out of this mortgage!

Love & Light To All

 

Mysticjo

 

Nationwide Settled 19/07/2006 Settled out of court £5,000

 

HSBC Bank PLC< Data Protection Letter Sent 25/07/2006

 

Preferred Mortgages Data Protection Letter Sent 25/07/2006 ERF & Charges

 

Welcome Car Finance Data Protection Letter Sent 25/07/2006

 

NatWest Home Loans Data Protection Letter Sent 25/07/2006 ERF & Charges

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Just heard back from MCOL that GMAc intend to defend the claim. I will be very interested to see their calculations on how they reach these charges.

 

On the BM front i sent back theform they sent me accepting their offer, I marked the letter without prejudice, and I also asked them to provide me with a full breakdown of solicitors charges of £527 for aborted reposession proceedings. After all if I am to pay the bill it is only fair that I see their invoice.

 

After that I will go for the ERC

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martdj, I have been through this with BM, on analysis of their statements, they admitted that charges made for 'Solicitors Fees' were actually for work they claim was carried out by their internal departments. As a group, I understand there are approx. 150 companies, of whom Sally Mayer plays Company Secretary to a large number.

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  • 5 weeks later...

Cor Gmac not putting in a defence?

 

Either they're turning soft, have realised they've got no hope or simply missed the deadline because of Chrismas and will file for set aside!

 

They have paid out a couple of claims recently so heres hoping!

 

Best of luck

 

Zoot

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MCOL page shows judgement issued on 28/12, however today I have receive d from Eversheds GMACS sols a copy of the clients defence which they say was filed at court on 29/12. On the last page where the statement of truth is signed it is just dated December 2006 no day, and it states served and filed this ... day of December, again no date The defence is basically that the contract i signed agreed these charges and thay are a true pre estimate blah blah.As regards the Common Law, Unfair Contract Terms Act and Unfair terms in Consumer Contracts Regs it states that I have given insufficiant particulars. Also states they wish to claim costs not exceeding £5000 but no breakdown given. Where do I go from here, and as the form is not properly dated is it legal??

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telephone the Courts and confirm you have a Judgement. The other side will then have to make an application to have it set aside or pay up.

 

The Judgement should state the time limits imposed for payment of the Judgement by the Defendants.

 

Looks like Eversheds were a touch too late.

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Judgment issued simply means it has ben applied for not that it has been granted. I don't think the lack of date will necessarily invalidate the defence.

 

How much was your claim for under or over 5K?

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Zoot, surely Judgement Issued means notification and therefore granted, given it ia a MCOL and taking into consideration the Royal Mail and the time of year, the Defendants should have had this hand delivered if necessary to ensure the matter has met with the relevant time limits.

 

Anything outside of this will be out of time and must be repealed.

 

In any event, the Court will not be too happy with a defense filed after they have issued a judgement.

 

Any defense filed now is out of time.

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No MCOL will change to granted once it has been granted. Issued simply means its been requested. Similar to the position of claim issued and claim served. The deemed serve date comes 5 days after issue. Plus the fact that it all happened during the Christmas period would give them extra days.

 

Its probably better this way otherwise they would apply to have a set aside which could take months.

 

Even so it still looks like they are going to drag this one out if their past performance is anything to go by!

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