Pepper UK/engage mortgage/Mars Capital - excessive unlawful fees reclaim+Eviction

[survivor_13]

Thanks Guys,

 

I hope so too;)

[jansus]

TBH I a* not sure if the HOL hearing will have any affect on these type of charges. As far as I know all they are ruling on is if the OFT can have the power to decide if Bank charges are fair or unfair. That is how I understand it. I think legal representation is a good idea - but a call to the Council of *ortgage lenders and or the FOS would be worth a try ?

 

I agree with Ell-enn the charges should be added to the capital and will result in a higher pay*ent and interest charges but you should not loose your house because of the*.

 

Not swearing - just have probs with keyboard- new one on the way!

[jansus]

Complain on unfair mortgage fees | This is Money

[jansus]

Also at the present time you are not saying you will not pay the charges

- all you are saying is that you want to agree on a true arrears figure so you can sort yourselves out.

 

 

The charges and whether they are fair can come later.

Unless they want to force you into counterclaiming now ?

Not really a good idea

 

 

- I think it sounds as if the judge was on your side and he wanted you to have the leagl argument against the actual charges in place ,in case they wont back down?

 

Is there actually a legal case you are quoting to state that the arrears should be just that and not include the charges?

[underdog13]

Well done S13:)

 

At least this latest judge sounded a bit more on the ball! Seems like he was giving you a hint suggesting you get legal representation - hope your insurance policy covers you and you find an excellent barrister to kick the opposition's butts:D

[slick132]

Well done Survivor.

 

This will make the lender consider their position more carefully.

 

Use you time wisely to sort out what case law backs up your assertion that the charges cannot be included in the arrears.

 

Also, have you prepared a schedule you can give to the judge which clearly sets out the exact position regarding:-

 

1. Payments due.

 

2. Pay'ts made by you and by the assistance scheme involved.

 

3.The disputed charges.

[ohitsonlyme]

Well done Survivor(we will start calling you WINNER soon)

 

Ellen, can you give Both me and Survivor case law to support your view that charges should not be added to arrears

I agree with the logic that arrears can only be deficits to contractual payments.

Ohitsonlyme

[survivor_13]

Morning Guys,

 

Absolutely drained, hence was in bed by 6. Thanks for all your guidance and advice. I definately agree with not sitting back and becoming complacent.

 

Im having a look at policy to see entitlement and making an appointment to see a duty sol who represented us before.

 

Case law on the above would be advantageous.

 

Have a fab day, guys.

 

S13

[Ell-enn]

Hi, as far as I know there is no case law regarding arrears penalty charges.

 

 

It would be classed as unfair terms and conditions in the mortgage contract and, like bank charges, the lender should be required to justify how they arrive at their figure of £50/60 per month i.e. show their true cost in managing the arrears situation.

[jansus]

I was thinking more of whether there is a law to cover the fact that they are including the charges in the arrears figure in court, rather than whether they are justified?

 

On another thread I see that the judge asked for a copy of the T&C from the lender to justify that the lender could ask for repayment of the charges within the arrears figures?

 

So what I am really asking is when a lender goes to court they are supposed to ask for a figure to be paid(arrears) OR they will call in the whole loan by means of possession.

 

So where does it say in the T&C what the definition of arrears is?

 

I think it should be in the KFI - there should be definition of the word arrears - if it says in the T&C that that includes charges is that legal?

 

I am sure that Cheshirelad has a thread where he has put in counterclaim for the charges through court as he did not have time to go through FOS - as far as I know it is still ongoing.

[Desperate Daniella]

Hi S13,

 

Somehow I missed your posting on asif's thread yesterday. I am so relieved for you. Well done.

 

DDxxxxx

[survivor_13]

Thanks DD,

 

Still along way off, but for now we can prepare a stronger defence. Expecting paperwork from court/claimants solicitor so will advise then.

 

Thanks for all your support:)

[jansus]

http://www.consumeractiongroup.co.uk/forum/repossessions/211056-i-know-last-minute.html

 

it is post 84 on this thread where the court asked the lender to show them in the T&C where they were allowed to include charges in the arrears figure for court ( I think!)

[survivor_13]

Hiya All,

 

Been unable to log on due to to internet connection probs, hopefully all resolved now.

 

I have received date for next hearing which is the 17th November and it has also been moved back to the original court, hmmm.

 

With effect from the end of the month il be in the process of preparing my defence again,

using what we have already and as slick suggested finding the case law to support our defence.

 

Have also had recent information regarding GMAC having to pay back unfair arrears charges, is this so??

[underdog13]

Hi Survivor,

 

GMAC have been fined 10.5 Million pounds with a pot of around 7.7 million for customer refunds:

 

 

D Found the following report online;

 

One of the UK’s biggest specialist mortgage lenders has been ordered to pay a record £10.5 million for treating struggling borrowers unfairly and being too ‘trigger-happy’ with repossessions.

 

GMAC-RFC, which was a top 10 lender before the credit crunch hit,

has been fined £2.8 million by the Financial Services Authority (FSA)

and ordered to pay over redress of £7.7 million plus interest to more than 46,000 mortgage customers.

 

An investigation found that the specialist lender,

which mainly dealt with sub-prime,

buy-to-let and self-cert mortgages,

 

 

hit struggling borrowers with “excessive and unfair” charges.

It was also found to have launched repossession proceedings before "fully considering the alternatives".

 

This is the first time a lender has been fined over the way it treats borrowers struggling with payments.

 

 

Complaints about arrears handling increased 41% to 39,181 in the first six months of 2009, according to the FSA.

 

The fine follows the FSA publishing its mortgage market review, in which it proposed tougher affordability checks and the end of self-cert mortgages.

 

Margaret Cole, director of enforcement and financial crime at the FSA, says GMAC-RFC’s fine should act as a deterrent to other lenders.

 

In a written statement, the lender has apologised to affected customers.

 

It says:

“While our arrears charges were in line with the market,

in hindsight we fully accept that for certain fees our estimates of the costs were not proportionate to the additional administration actually required.”

 

What affected customers should do:

Over 46,000 GMAC-RFC mortgage customers could now be due redress from a compensation pot of up to £7.7 million plus interest.

 

 

This applies to customers who were hit with specific arrears charges between 31 October 2004 and 30 November 2008.

 

Specifically, the FSA fine and redress order relates to:

* Excessive and unfair charges for customers

* Proposed repayment plans that did not always consider customers’ circumstances

* Repossession proceedings that were issued without all the alternatives being fully considered

 

GMAC-RFC’s staff were also found to have insufficient training in how to deal with arrears cases.

 

Customers who were hit with arrears charges for failing to pay their monthly mortgage payment by direct debit are set to receive an average refund of £117.

 

Borrowers who paid early repayment charges applied to arrears fees and charges could get an average refund of £14.

 

 

And average refunds of £45 could be available in cases where the solicitor’s instruction fee their paid was more than the actual cost.

 

GMAC-RFC has already set up a redress system, and says it will write to all affected customers with more details.

 

Following this, existing customers of GMAC-RFC will receive an automatic re-crediting of the charges plus interest to their mortgage account.

 

Past customers, who have now redeemed their mortgages with GMAC-RFC, should also receive a letter. This will, however, be sent to their last known address.

 

Affected customers who have moved address can contact GMAC-RFC on 0800 030 4662.

 

You can also find out more about redress on GMAC-RFC's website.

 

This may also be of interest;

 

Some mortgage lenders are using repossession as an alternative profit stream instead of as a last resort, a group of MPs has warned.

 

In a report out this weekend,

the Treasury Select Committee said it was "extremely concerned" that some lenders are using repossession not as a tool of last resort, but instead as a first resort.

 

While the MPs recognise some charges are necessary to recoup additional administrative costs, they were concerned that in many instances such charges appear to go beyond that.

 

The Committee described these practices as "intolerable" and urged the financial regulator, the Financial Services Authority (FSA), and the Office of Fair Trading to get a grip on this problem and track down lenders that are breaking the rules.

 

John McFall, chairman of the Committee, says:

"We have heard evidence of charges as high as £35 from some lenders for simply sending a letter or making a phone call, and charges as high as £150 for a visit from a so-called ‘debt counsellor'.

 

 

Such practices are intolerable and are placing additional financial, as well as emotional, strain on those already struggling to keep a roof over their head.

 

"We suspect that the small number of cases being brought against lenders making excessive arrears charges are merely the tip of the iceberg.

 

 

This is why it is so important that lenders are compelled to open up their books and justify their charges, while the FSA must be prepared to take decisive action where it finds evidence of wrongdoing."

 

Peter Vicary-Smith, chief executive of Which?, agrees:

 

 

"The last thing you need if you're struggling to pay your mortgage is to be hit with excessive charges, yet that is what some lenders are doing to their customers.

 

"The FSA needs to start protecting consumers who have been made vulnerable by the recession and stop protecting the commercial interests of lenders trying to evict people from their homes.

 

"The FSA must respond to the Committee's condemnation of its leisurely approach to enforcement by immediately publishing the names of the firms it is investigating," he adds.

 

The FSA released a statement saying it will respond in full to the report in due course, adding that it continues to take a robust position with firms as soon as it has evidence of wrongdoing and also to ensure borrowers are treated fairly throughout the lifetime of their mortgage.

 

Last but certainly not least, the very best of luck for the 17th November:)

 

Found another report that may be useful viz a vie unfair relationships, etc;

 

Five-year block on repossession

 

Judge Milwyn Jarman's order of 28 October 2009

 

A carpenter from Bridgend has won a five-year stay on any repossession proceedings against him by his lender.

 

 

Peter Bentley challenged the right of Blemain Finance, who specialise in second loans secured on a home, to repossess him.

 

He claimed that his contract with them involved an unfair relationship that was illegal.

 

The lender also agreed to charge no further interest and cut his repayments from £550 to just £150 a month.

 

Financial problems

Mr Bentley's financial problems started when his mother died in 2007 and he was forced to work part-time to look after his father, who was suffering from Alzheimer's.

 

I was in a state of panic

 

Peter Bentley

 

He took out a secured loan in February 2007 for £40k to try to alleviate his financial problems.

 

But his caring responsibilities meant he had to slash his working hours from 48 hours a week to just 19, leading to a big drop in income, and he fell behind with his repayments.

 

Although his father moved to a care home for the last eight months of his life, and died in January 2009,

Mr Bentley was unable to increase his loan re-payments significantly because the recession meant that by that time he could not work longer hours.

 

Mr Bentley said that Blemain then started chasing him for the repayment of his loan, which had ballooned to £47,000 by the time of this month's High Court hearing in Cardiff.

 

"Blemain were very aggressive and were not prepared to listen," he said.

"I was in a state of panic."

 

Legal challenge

Mr Bentley was represented at the hearing by lawyers CCCL, employed by the claims management company Cartal Client Review.

 

"The relationship between the parties was an unfair one within the meaning of Section 140A of the 1974 Consumer Credit Act," argued Andrew Settle of the law firm.

 

Mr Bentley's lawyers argued that Blemain had lent the money to him irresponsibly, taking advantage of his naivety, vulnerability and desperation.

 

The High Court order was made by Judge Milwyn Jarman.

 

It said that in exchange for Mr Bentley withdrawing his argument that there had been an unfair relationship under the Act, and in exchange for agreeing not to pursue that legal argument against Blemain again, the finance firm agreed:

 

• to re-write the secured loan account, cutting the repayments to £150 a month

 

• not to levy any interest, charges or legal costs "whatsoever."

 

Blemain's repossession claim was dismissed and it was told it could not enforce repayment of the loan by this method for five years.

 

After that, it can be enforced by repossession, but only if there are at least 12 months' arrears on the new level of payments, i.e. £1,800.

 

 

'Substantial financial settlement'

"Mr Bentley fell behind with his loan payments," said a Blemain spokesman.

 

"However, the matter was resolved before it went to court and we agreed to give him further time to repay what he owed.

 

"For the avoidance of doubt there has been no court decision on this case as a satisfactory arrangement was agreed," the spokesman added.

 

Carl Wright of Cartal Client Review put a different interpretation on the outcome.

 

"Peter Bentley was offered a substantial financial settlement, to ensure the case was not heard by the High Court," he said.

 

"It is believed to be the first time a mortgage and loan lender has offered a client a legal undertaking not to repossess the client's home.... for the sole purpose of preventing a judge in the High Court from setting a legal precedent against their lending practices."

 

In September, a judge in South Shields let a woman off an £8,000 credit card debt, also represented by Cartal Client Review.

 

The judge agreed that Lynne Thorius had been mis-sold a payment protection insurance policy when she first took out the card, and this meant there was an unfair relationship under the law between her and the card company MBNA.

 

Hope these give you some encouragement and useful info, Survivor.

[Crapstone]

FSA sets out major reforms for the mortgage market

 

The FSA have looked at the unfairness of charges on arrears when a payment plan is place and issued this statement on the 19th October for reforms.

 

Strangely enough I had a refund of my arrears charges that very day. No letter..just listed on a quarterly statement sent out a few days later. £3000 is hardly a small sum. Totally unexpected as the last letter we received, last response to a complaint, was adamant they were not going to budge on the charges. Pay up or else..as we'd defaulted on 2 payments since the suspended repo..despite the fact they failed to cash them

 

I've spoken to the company on the telephone..they insist it's just a review of our account for being so good at paying and as a result the charges were refunded. I doubt that very much ..

 

The GMAC case highlights how repossession should be a last resort and ALL other options have to be fully explored and exclude excessive charging.

 

I think the judges will be sitting up and taking notice of the charges added onto accounts and the circumstances of any repossession. I'll eat my OH's socks if they don't and trust me, you wouldn't want to go there.

[mkb]

Any idea who the 5 firms are in that FSA report?

 

Also, they say they'll be making a proposal in Jan about arrears charges whilst in a arrangement to pay. Will this be enforced or does it remain as a proposal ie. nothing more than a suggestion?

[Crapstone]

I have a vague idea who they will be.

 

 

We are already seeing the enforcement actions with GMAC ..

..and I've no doubt the high charges we've seen in the past will be dead and buried but will make banking, loans and mortgages more costly from the outset.

[survivor_13]

Hi All,

 

Guys thanks for all the information provided, it means a lot.

[survivor_13]

Went to see legal rep this tuesday

 

 

she seemed quite familiar with the case as their duty sols had represented us before,

she did say however she was surprised we still had our home after 5 applications which didnt leave me feeling v confident in her,

i guess she has to point out the the pros and cons with cases like ours.

 

We are seeing her again on Tuesday as shes trying to get transcripts from previous hearing when the judge ruled in their favour,hence the appeal.

 

 

She also stated its not unusual for sub-prime lenders to charge these fees as she has dealt with many cases and such is the case,

 

 

i said thats why the fsa/fos is now on their cases and trying to get better deals fo the consumer.

 

 

Il be taking all info from CAG with different cases for her perusal,

hopefully she might be able to see some light at the end of the tunnel.

 

Once again, thanks guys for continued support and help

Survivor:)

[survivor_13]

Hi Guys,

 

Had appeal hearing on the 17th November 2009,

unfortunately it was dismissed

 

 

now giving Mars Capital the opportunity to get an eviction warrant.

 

 

They sent a barrister on this occasion and the judge gave it to them

stated he saw no reason to go against the judges decisions, so thats that.

 

Now waiting for the warrant of eviction to try and suspend again, if we can.

 

 

We face losing our home just before christmas.

Will advise once we have received,

 

 

the judge did say however we should keep paying and it was a hollow victory for the claimant

- still not sure what that meant.

 

Take care all

Survivor:)

[Desperate Daniella]

Oh God, survivor,

 

That is just appalling.

I don't understand why the judge said that either.

 

 

Frankly what is the point of your continuing to pay if they won't let you stay in the house

- unless of course he meant that you have a greater chance of suspending the eviction by doing that.

 

Praying for you.

 

DDx

[Ell-enn]

I think that's exactly what the judge meant.

[underdog13]

I'm so sorry, Survivor - you have fought for so long and so hard; you deserve better than this.

 

Dearly hope you can get the warrant suspended, I should think it best to keep paying just in case you can achieve the suspension. The 'hollow victory' remark was a bit odd - perhaps the judge thought if you could show reliable payments you may get the suspension?!?

 

Hope you can still turn this around:)

[survivor_13]

Hi All,

 

Not able to log on as frequently as before as my internet box is faulty and am awaiting a new one, will as often as i can.

 

 

Received letter from mortgage company day after the trial with new balance including the whooping amount of £1400.00 added to arrears amount for solicitors fees, which increases our balance amount dramatically.

 

Im in the process of writing a letter once again to Mars Capital asking for a breakdown of their charges, ie. solicitors fees

- how is it worked out

 

 

im requesting a full breakdown of all fees and interest charges as £1400, sols fees for example means absolutely nought to me.

Il be faxing this on Monday morning, it be interesting to see how quickly they get back to me.

 

We're still paying and keeping on top of things

are prepared to fight once more.

 

 

The judge also said had it not had been for the DWP we would not have been able to pay our mortgage,

he kinda made it sound like a negative instead of a positive

how does one get round that.

 

 

Its definately a judges lottery and it all depends on who you get on the day.

 

chasing up FOS as it seem to be taking forever for them to sort out claim for charges, so sending another letter plus intention of eviction letter from sols.

 

Hope your all well and thanks for all your support and help, will keep you posted.

 

Kind Regards

Survivor:)