Me V Swift

[mrsfoot]

Hi AFD, have prepared the letter, is it possible yu could have a look over it for me, and give me some feedback on its contents

 

mrsfoot

[alanfromderby]

Have just sent you a PM.

[mrsfoot]

Part 18 sent off today, lets see what they make of that, or more what their solicitors think of it!

[mrsfoot]

HI quick update, have recieved reply to part 18 request. Letter as follows:

 

We refer to your request for further information on CPR18. We object to your request on the grounds that these are not matters that are appropriate to be set out in our clients pleaded defence and are matters for evidence, for which you will receive our witness statement by 12 January 2007.

 

Letter typed exactly as written.

In part 18 i requested:

1 I request that you supply a full certified breakdown of the actual expenditure incurred by Swift Advances, in relation to each of the charges levied to my account and detailed in the claim; this includes the following as displayed on spreadsheet attached to claim, although it should be noted this is not an exhaustive list and you should refer to the amended spreadsheet issued during the allocation hearing:

a) Legal Fee’s on all work completed by your legal department, solicitors etc

b) Default charge and the process of arriving at the original figure and the later revised figure

c) Production and delivery of letters sent to the address of the claimant

d) Thorough explanation, detailed accounts and process of arriving at the figures for the collection charges applied to the account

 

2 Where the charge is purely an administration fee applied under the terms & conditions of the mortgage, I request that you provide certified details of how this charge was set, and the calculations used in the process of arriving at this figure

 

Has anyone any ideas on the above? Do I now apply to the court for this information, although it does seem to read that they will be using what i requested as eveidence anyway? Id really appreciate some advice here guys, as Swift have already said they are quite happy to let this go to high court if i win as it will affect their whole pricing system.

 

Thanks

[mrsfoot]

bumpety bump!

[gizmo111]

Hi,

 

I would wait until Alanfromderby is back online or zootscoot. I'll bring it to their attention.

 

Best wishes

[mrsfoot]

Thnks Gizmo, dont know what id do without u all lol

[mrsfoot]

Bump re part 18

 

Also have writtten my witness statement, is there anybody willing to have a look over this for me please

[zootscoot]

Hi Mrs Foot,

 

I'm not too sure about the part 18 response other than matters relating to evidence are not expected to be set out in particulars of claim or defence. Best to pm Alan for this.

 

I'llbe happy to look at your witness statement. Can you post it on here or do you want me to pm you my e-mail address.

 

All the best

 

Zoot

[mrsfoot]

Thanks Zoot, if you can pm me your email address i would be very grateful.

 

I have emailed Alan as you suggested, have not had reply yet but i know he has been really busy so dont want to bug him!!

 

Thanks again

[zootscoot]

Hi Mrs foot,

 

Could you post your full directions from the court?

 

Zoot

[mrsfoot]

Allocation Hearing and what the Judge will be using as a criteria

When deciding the track for a claim, the matters to which the court shall have regard include ---

Amount of claim (under 5k normally means small track but not a certainty)

Nature of remedy (refund of the charges taken as they are unlawful within UTCCR's)

Likely complexity of the law (state here that it is not a complicated case as it is simply facts that it does not cost £XX amount of money to send a computer generated letter and other facts that are applicable to you case using the laws found in library)

Number of parties...not relevant unless you are taking them to court alongside other claimants

Value of counterclaim....which you will have been made aware of if your bank are counterclaiming. If they are not then this is irrelevant

Amount of oral evidence required. This should be none as all evidence should be in written form as it’s with regards to standard charges against your account and not charges that have been individually agreed between parties

Other parties’ interest...this is normally when the bank will have to make changes to way and what it charges and how this will affect others. Simply say this is a matter for the bank to justify their charges on your account

[mrsfoot]

Hi Zoot

 

Here are the full directions from the court:

 

1, There shall be standard disclosure by list between parties by 22nd dec.........completed

 

2, A defaulting party will not be permitted to rely on docs not dislcosed

 

3, Each party shall serve on the other the statement of all witnesses as to the fact upon which he intends to rely at trial. There shall be simultaneous exchange of such statments no later that 4pm 12 Jan 07

 

4, The witness statments shall stand as evidence in chief at trial

 

5, Evidence will not be permitted at trial from any witness whose statement has not been dislcosed in accordance with this order

 

6, Trial date set for 15 march 07

 

7, Not less than 7 days before the trial the defendant shall file a court bundle comprising of: an agreed case summary, pleadings, statments of the parties and witness to fact, skeleton argument and reports

 

8, The costs be in the case.

 

Just noticed i do not have to send my bundle in....is that right or normal?

 

Thanks again Zoot

[zootscoot]

Yes thats normal ususally 7 or 14 days before trial.

[mrsfoot]

Oh i thought i had to also send my bundle to the court and to the defendant. Dont know now where i got that from

 

Also Zoot i have put the criteria for allocation hearings in post 38, i thought you might want to use it in the forum somewhere as i have not found anything like it on here yet

 

Thanks

[zootscoot]

Can you tell me what cases you included in your list?

[zootscoot]

Can you state which type of charges you are claiming eg late payment fees, ERC etc

 

and the terms in the contract to which they relate.

 

Cheers

[mrsfoot]

In my list i used:

 

Unfair Terms in Consumer Contracts Regulations (1999) – 10

(DD)—Analysis of Unfair Terms in Schedule 2 Group 5 - 2

(EE) -- The Supply of Goods and Services Act (1982) - 13

(FF) -- Unfair Contract Terms Act (1977) - 10

(GG) -- Office of Fair Trading Report April 2006 (OFT842) – 35

(HH)—Office of Fair trading document – OFT’s Action on Credit Card Default Charges - 3

(II ) -- House of Commons Early Day Motion (EDM 2227) - 2

(JJ) -- House of Commons Select Committee on Treasury

Second Report: ‘Transparency in charging’ - 15

(KK) -- Report by Kendall Freeman on Liquidated Damages (May 2005) - 3

(LL) – Document showing case law from : Dunlop Pneumatic Tyre Co Ltd

v New Garage & Motor Co Ltd [1915] AC 79 - 2

(MM) -- Case Law Reference: Alfred McAlpine Capital Projects Ltd

v Tilebox Ltd [2005] EWHC 281 (TCC) - 18

 

 

The Claimant will also make reference to the following case laws;

1. Murray v Leisureplay [2005] EWCA Civ 963

2. Wilson v Love [1898]

3. Lordsvale Finance PLC v Bank of Zambia (1996) QB 752

4. Bridge v Campbell Discount Co. Ltd. (1962)

 

I am claiming:

4 x Arrears charges of £50 each, 4 x Admin Fee when in arrears of £33 each time, (relating to clause D. If you pay us by any methods and we cannot collect the payment when we ask for it, you will have to pay a charge for this. This charge will include all bank and other charges we have to pay in order to collect the payment.

1 x Default charge of £1044.00 (which was subsequently reduced to £250 by goodwill once i had started claim). Relating to M.2a (see below)

Various costs for letters ranging from £35 - £100 (some for change of interest even tho they didnt apply to me as i was on fixed rate), Relating to clause L.1.if you do not make a monthly payment on the date iot is due, we may (as well as enforcing our right under this agreement) make a charge for each letter we sendto or receive from you or your agents or for each phone call we make over missed payments

L.2. We may change the monthly payment due form you by giving you at least 14 days notice, we may change it to reflect:

a)reflect the fact the interest rate that applies to your loan has changed

b) include any costs, charges or expenses that you have to apy under this agreement

c)to include any arrears in your current monthly payment

2 x collection charges of £1100 and £1374 (which they later decided they were actually something other than collection charges, and were actually £470 legal fee's for court appearance, 9 x £50 monthly arrears fees. The £1374 they later state in a further letter is now litigation fees for solicitors, who are in house as a side note).

M. As well as the charges we have specifically mentioned you must pay the following

1. All reasonable copsts and expenses we have to pay or decide to charge as a result of any term of this agreement or the legal charge being broken

2. All other reasonable costs and expenses we have to pay or decide to charge you in connection with this agreement or legal charge

The costs and expenses mentioned in this clause include

a) any costs and expenses we pay in legal proceedings (whether or not you are involved on them)

b) any other fees we pay, including debt counselling, collection agency, asset management and valuation fees; and

c) any of our own admin expenses (we may recover these by charging you a fee which we reasonable estimate to represent the cost to us of doing the work for which we are charging the fee)

 

 

No ERC at this stage as i wanted to claim charges back 1st.

 

Little side note, once i began this i discovered they had also charged me for a court appearance, of which the judge had ruled no charges were to be applied, and yet they did anyway. They have sent me the £70 cost for the day via cheque.

 

Hope this is helpful, thank you so much for all you are doing

[mrsfoot]

HI quick update. Thi is the witness statement received form Swift in the above case. I had made notes on some itmens in red. Happy reading and any thought on it will be gratefully received

 

Witness statement for Swift:

1. I am duly authorised to make this statement on behalf of the Defendant who I shall refer to as Swift. The facts contained in this statement are derived from inspection of swift’s records which are kept in the normal course of business

2. Whilst the D reserves privilege in relation to all documents generally, it waives privilege in relation to the docs that are specifically exhibited to this statement only

3. There is now shown and produced to me marked MW1 a paginated bundle of docs. Where appropriate I will refer to the relevant page number within that bundle

4. At pages 1 to 7 is a computerised history of the account number XXXXX opened in the names of mrsfoot and hubby, showing various entries made by individuals on the account. A few items have been erased, either these are not relevant to the action or where privilege is claimed.

5. I now wish to explain the operation of the computerised history entries. On the left hand side is the date, names and initials of the person making the entry. People who access the computer are trained to make the entry as soon as possible after it has taken place. They are further trained to make an accurate and truthful record of what has transpired.

6. On XXXXX swift completed a mortgage advance to the borrowers in the sum of £58,000.00 The purpose of the loan was stated by the borrowers on their loan application to be for home improvement and debt consolidation. The loan was secured on the property.

7 Pages 13 to 79 are documents relating to the processing of the loan application. The application form was submitted to swift by the borrowers broker. It states occupations and salaries. It stated a first mortgage on the property in favour of GMAC.

8. The loan application was assessed by swifts underwriting dept. The loan appeared affordable and the total repayment represented 21.82% of total monthly income.

9. Swift speak with its customers just before the loan completion to verify information. Pages 80-82 is a copy of this conversation where C wants to proceed with the loan.

10. On completion a welcome letter was sent from swift to borrowers. It shows the deductions from advance to GMAC for redemption of previous mortgage and legal and doc fee. Broker fee was also deducted. The letter enclosed the tariff of charges.

11. Page 87 shows a true copy of the repayment record. The mortgage went into arrears at month 3. The account clearly shows a history of arrears.

12. Pages 88-115 are copies of the correspondence between D and C, Solicitor and C and other documents relating to the redemption and re mortgage of the loan. The history entries will show the chronology of this correspondence, although standard letters produced on our computerised system and recorded there not also sent to our computerised scanning system. This shows considerable efforts to contact the borrowers regarding arrears. In this instance solicitors commenced legal proceedings on June 30th 05 for possession of the property. The matter was listed for hearing Sept 1 05, where Judge Mahy ordered repossession suspended on the order of instalments. (1.The judge also ordered for the cost of the hearing not to be added, but this was ignored and they added them anyway, this was sent to us by cheque after I asked for the charges to be refunded some 14 months later, with no interest inc!!

2. Also in this time were letters sent to us with the following info…..”you are aware that Swift has gained a possession order and you will be evicted on Sept 1 2005”. This letter was sent to us 11th July 05, we have copy of this, however it had not been heard in court at that point.)

13. The mortgage was redeemed in full XXXXX when £70, 193.09 was paid to settle the account.

14. The settlement figure is broken down as follows:

Original Loan £58,000.00

Interest charges £7,972.00

Less payments received £4,016.02

Sub total £61,956.31

Title insurance premium £165.00

TT charge £40.00

Arrears letters £115.00

Bounced payment charges £66.00

Redemption correspondence charges £455.00

LBA letter sent £75.00

ECA?ED1 letter sent £100.00

IS issues yes £100.00

Other letter charges £70.00

Default charge £1,044.00

Post default collection charge £1,100.00

Litigation fees £1,374.78

Court issue fee £150.00

Solicitors agents fee £70.00 (this was returned 14 months after charged see above)

Sub total £66,881.09

Sealing / discharge fee £250.00

ERC £3,062.00

Redemption figure £70,193.09

15 Mrsfoot has disputed the charges that have been applied and claims they are excessive. It appears the amount she is disputing are the items annexed to the claim totalling £4,837.78. Most of those claimed are shown above. I would also add mrsfoot has disputed the ERC and has indicated she will bring a further claim for such sums after these proceedings have been finalised.

(1. I am claiming £4,290.20 so not sure where the figure he has got comes from??

2. I told the judge at the allocation hearing I would not be claiming the ERC so where this info has came from again I do not know)

16. Pages 117-170 shows correspondence between parties regarding this claim

17. The credit agreement signed by the borrowers provides for the recovery by swift of fees and charges that have been incurred due to the borrowers breach of the agreement. For example:

* Under clause L1 if the borrowers fail to make the payments due we may make a charge for each letter we send or receive from the borrowers or any telephone conversation about the missed payments

* Under clause M1 we can recover “all reasonable costs and expenses we have to pay or decide to charge as a result of any term of this agreement or the legal charge being broken

* Under clause M2 we can recover “all reasonable costs and expenses we have to pay or decide to charge in connection to this agreement or legal charge

* Clause M then sets out the type of costs involved which are stated to include those concerned with legal proceedings and our own admin expenses. The admin expenses are stated to relate to our reasonable estimate of the costs of our carrying out the work.

In addition, in accordance with the usual industry practice swift sends out an itemised tariff of such charges with the welcome letter.

I will go through each of the items of charges as follows

Arrears Letter and call charges£115.00

18. The sum consists of 5 letters at the cost of £23.00 each

19. These amounts are similar to charges prevailing elsewhere in the mortgage market for such services. Swift is a member of the FISA, which is the self regulatory body. FISA complies data of its lender member’s fees and the one carried out in 2004 showed members charged between £18 and £40 per letter or call

Returned payment charges £66.00

20. On 2 occasions we submitted a payment to the customer’s bank for payment by direct debit which was rejected. A fee is applied each time of £33.00. Our bankers charge us a fee for each unpaid item, and debit the unpaid amount to our account. Our finance dept must then reconcile the unpaid item on the statement to the original credit, debit the items to the borrowers account and separately update our access accounting system. The amount of the fee is similar to that charged by other secondary lenders such as GMAC, Preferred plc, Rooftop and Mortgages plc.

Default charge £1044.00

This represents the costs we incur when the account goes into default. This charge is applied where 2 payments are in arrears and we issue a default notice. The file is then reviewed by a credit control officer to decide the next course of action. Normally a call is placed to the borrowers. The account is the diarised for responses to this chasing. The file is then reviewed by a manager to ensure that the appropriate action is being taken. In this instance we have agreed to reduce the fee to £250 so that a refund was sent to the borrower for £794.00

Post default collection costs £1,100.00

22. This sum is made up as follows:

· 9months arrears management charge at £70 per month £630.00

· Admin fee for the work involved in instructing and liaising with our solicitor£ 470.00

I would explain that mortgage lenders routinely apply a monthly charge when an account goes into arrears and also charge for the individual letters sent and phone calls made. The monthly charge in sub prime market is typically £50 - £60 although SPML charges £65 and Rooftop £75 a month) Letter charges are typically £15-£30. The swift tariff provides for a monthly charge of £70 when the account is over 2 months in arrears and there is no arrangement in place. In such a case the account has to be actively managed and such activity can clearly be seen from the computer history. When the charge of £70 is applied then no other fees are applied for letter and calls. This compares more favourably to other lenders charging processes. The tariff also provides that additional charges above the £70pm will be charged if solicitors are instructed. This is because under swift’s arrears policy this issue of legal action, inc warrants for possession can only be authorised by a senior manager or their delegated assistant, requiring further reviews of the account. Swift also has to carry our work in providing additional info to the solicitors for the preparation of the summons, statements of truth and up to date reports for the hearings. 2 items were charged for during this period of £33 and they are related to returned bank payments and reflect the costs we incur with our bank and admin work we have to do in such cases. During the months where a £70 charge is applied we carry out the following activities:

· Letters are sent to the borrowers and letters are received

· Phone calls are made

· Regular file reviews are carried out by the collections manager or his assistant

Liaison with solicitors and any other 3rd parties inc any various other defaults

Litigation Fees

23. This relates to the D costs of the legal action taken for the possession of the claimant’s property. Under clause M swift are entitled to recover from the borrower 2all reasonable costs and expenses we have to pay or decided to charge” The judge ordered for the costs of the hearing that day were not to be added to the security. Accordingly swift reimbursed the borrowers the fee.

Admin Fee £40

This is not a default charge but relates to the telegraphic transfer fee we charged when we completed the loan so the funds could be sent to the borrowers more expediently

Issue Fee £150

This is not a default fee but relates to the court fees for issuing the possession hearing

Form to Land Reg £35

This is the fee set out in the tariff for obtaining copies and searches from HM Land Reg required by the court under CPR when a claim for possession is issued

DPA Charge

This is not a fee payable under the credit agreement.

Fees and charges general issues

24. Swift deals with referrals from mortgage brokers who are unable to place their application with main stream mortgage lenders. These borrowers generally have a history of default and a poor credit rating, and therefore require more intensive processes to ensure payments are received. The C had 1 CCJ from 3 years previous and had arrears with the previous first mortgage with GMAC

(We had 2 months arrears with GMAC which were the last 2 months we were with them)

25. In general terms swift carries out reviews of its tariff fees and charging procedures from time to time. Its subsidiary company swift 1st ltd is a FSA regulated mortgage firm. When swift 1st ltd applied to FSA for authorisation it was required (as every application is required to) to give an assurance that’s its charges were fair and reasonable and would continue to be so. To do this we have reviewed the income from arrears charges as against the costs of managing and running the arrears function. (I would add that the tariff of swift 1st ltd and swift advances plc are the same) The cost we took into account are as follows:

* Payroll

* Credit control

*Proportion management / IT/ Accounts /Compliance

* Apportionment of the following costs relating to credit control

* Premises costs

* Stationary and telephone

* System costs

* Additional finance costs

The analysis we carried out showed that there was parity between income received and expenses incurred from the credit control function. I would add the OFT in its recent work on default charges have accepted that it is difficult to make a pre-estimate of costs attributable to an individual defaulter on each occasion and that it is not unreasonable to apportion costs based on the defaulters fair share of the overall costs.

26. I would add that swift is a relatively small lender and so does not benefit from the economies of scale available to some volume lenders

27. In the light of the above, I verily believe that all of the costs and charges have been properly incurred and are reasonable in amount. These costs could have been avoided had the account been conducted satisfactorily and the payments made on time.

28. I believe that the facts stated in this witness statement are true.

[mrsfoot]

bump! Can any mods admin please have a look at the above and guide me a little!

[Seminole]

As part of their standard disclosure have they provided you with a breakdown of their costs set out under the headings in para 25 of the witness statement? Have they provided you with any costings at all?

[zootscoot]

Hi Mrs Foot,

I've added some comments in pink. Basically all their assertions seem very vague apart from a few legitimate charges. Did you get a disclosure list from them? If so has the date for inspection expired? Was there any reference to any documentary proof of costings?

Witness statement for Swift:

 

1. I am duly authorised to make this statement on behalf of the Defendant who I shall refer to as Swift. The facts contained in this statement are derived from inspection of swift’s records which are kept in the normal course of business

 

2. Whilst the D reserves privilege in relation to all documents generally, it waives privilege in relation to the docs that are specifically exhibited to this statement only

 

3. There is now shown and produced to me marked MW1 a paginated bundle of docs. Where appropriate I will refer to the relevant page number within that bundle

 

4. At pages 1 to 7 is a computerised history of the account number XXXXX opened in the names of mrsfoot and hubby, showing various entries made by individuals on the account. A few items have been erased, either these are not relevant to the action or where privilege is claimed.

 

5. I now wish to explain the operation of the computerised history entries. On the left hand side is the date, names and initials of the person making the entry. People who access the computer are trained to make the entry as soon as possible after it has taken place. They are further trained to make an accurate and truthful record of what has transpired.

 

6. On XXXXX swift completed a mortgage advance to the borrowers in the sum of £58,000.00 The purpose of the loan was stated by the borrowers on their loan application to be for home improvement and debt consolidation. The loan was secured on the property.

 

7 Pages 13 to 79 are documents relating to the processing of the loan application. The application form was submitted to swift by the borrowers broker. It states occupations and salaries. It stated a first mortgage on the property in favour of GMAC.

 

8. The loan application was assessed by swifts underwriting dept. The loan appeared affordable and the total repayment represented 21.82% of total monthly income.

 

9. Swift speak with its customers just before the loan completion to verify information. Pages 80-82 is a copy of this conversation where C wants to proceed with the loan.

 

10. On completion a welcome letter was sent from swift to borrowers. It shows the deductions from advance to GMAC for redemption of previous mortgage and legal and doc fee. Broker fee was also deducted. The letter enclosed the tariff of charges.

 

11. Page 87 shows a true copy of the repayment record. The mortgage went into arrears at month 3. The account clearly shows a history of arrears.

 

12. Pages 88-115 are copies of the correspondence between D and C, Solicitor and C and other documents relating to the redemption and re mortgage of the loan. The history entries will show the chronology of this correspondence, although standard letters produced on our computerised system and recorded there not also sent to our computerised scanning system. This shows considerable efforts to contact the borrowers regarding arrears. In this instance solicitors commenced legal proceedings on June 30th 05 for possession of the property. The matter was listed for hearing Sept 1 05, where Judge Mahy ordered repossession suspended on the order of instalments. (1.The judge also ordered for the cost of the hearing not to be added, but this was ignored and they added them anyway, this was sent to us by cheque after I asked for the charges to be refunded some 14 months later, with no interest inc!!

2. Also in this time were letters sent to us with the following info…..”you are aware that Swift has gained a possession order and you will be evicted on Sept 1 2005”. This letter was sent to us 11th July 05, we have copy of this, however it had not been heard in court at that point.)

 

13. The mortgage was redeemed in full XXXXX when £70, 193.09 was paid to settle the account.

 

14. The settlement figure is broken down as follows:

Original Loan £58,000.00

Interest charges £7,972.00

Less payments received £4,016.02

Sub total £61,956.31

Title insurance premium £165.00

TT charge £40.00

Arrears letters £115.00

Bounced payment charges £66.00

Redemption correspondence charges £455.00

LBA letter sent £75.00

ECA?ED1 letter sent £100.00

IS issues yes £100.00

Other letter charges £70.00

Default charge £1,044.00

Post default collection charge £1,100.00

Litigation fees £1,374.78

Court issue fee £150.00

Solicitors agents fee £70.00 (this was returned 14 months after charged see above)

Sub total £66,881.09

Sealing / discharge fee £250.00

ERC £3,062.00

Redemption figure £70,193.09

 

15 Mrsfoot has disputed the charges that have been applied and claims they are excessive. It appears the amount she is disputing are the items annexed to the claim totalling £4,837.78. Most of those claimed are shown above. I would also add mrsfoot has disputed the ERC and has indicated she will bring a further claim for such sums after these proceedings have been finalised.

(1. I am claiming £4,290.20 so not sure where the figure he has got comes from??

2. I told the judge at the allocation hearing I would not be claiming the ERC so where this info has came from again I do not know)

 

16. Pages 117-170 shows correspondence between parties regarding this claim

 

17. The credit agreement signed by the borrowers provides for the recovery by swift of fees and charges that have been incurred due to the borrowers breach of the agreement. For example:(Nice of them to admit it!)

* Under clause L1 if the borrowers fail to make the payments due we may make a charge for each letter we send or receive from the borrowers or any telephone conversation about the missed payments

* Under clause M1 we can recover “all reasonable costs and expenses we have to pay or decide to charge as a result of any term of this agreement or the legal charge being broken

* Under clause M2 we can recover “all reasonable costs and expenses we have to pay or decide to charge in connection to this agreement or legal charge

* Clause M then sets out the type of costs involved which are stated to include those concerned with legal proceedings and our own admin expenses. The admin expenses are stated to relate to our reasonable estimate of the costs of our carrying out the work.

In addition, in accordance with the usual industry practice swift sends out an itemised tariff of such charges with the welcome letter.

I will go through each of the items of charges as follows

 

Arrears Letter and call charges£115.00

 

18. The sum consists of 5 letters at the cost of £23.00 each(Are these automated?)

 

19. These amounts are similar to charges prevailing elsewhere in the mortgage market for such services. Swift is a member of the FISA, which is the self regulatory body. FISA complies data of its lender member’s fees and the one carried out in 2004 showed members charged between £18 and £40 per letter or call (so?)

 

Returned payment charges £66.00

 

20. On 2 occasions we submitted a payment to the customer’s bank for payment by direct debit which was rejected. A fee is applied each time of £33.00. Our bankers charge us a fee for each unpaid item (How much), and debit the unpaid amount to our account. Our finance dept must then reconcile the unpaid item on the statement to the original credit, debit the items to the borrowers account and separately update our access accounting system.(Should take around about 2-5mins) The amount of the fee is similar to that charged by other secondary lenders such as GMAC, Preferred plc, Rooftop and Mortgages plc (Irrelevant).

 

Default charge £1044.00

 

This represents the costs we incur when the account goes into default. This charge is applied where 2 payments are in arrears and we issue a default notice. The file is then reviewed by a credit control officer to decide the next course of action. Normally a call is placed to the borrowers. The account is the diarised for responses to this chasing. The file is then reviewed by a manager to ensure that the appropriate action is being taken. In this instance we have agreed to reduce the fee to £250 so that a refund was sent to the borrower for £794.00 (Still seems excessive, very vague about the actions taken to review)

 

Post default collection costs £1,100.00

 

22. This sum is made up as follows:

 

· 9months arrears management charge at £70 per month £630.00

· Admin fee for the work involved in instructing and liaising with our solicitor£ 470.00 (Ask for proof eg invoice)

 

I would explain that mortgage lenders routinely apply a monthly charge when an account goes into arrears and also charge for the individual letters sent and phone calls made.(Irrelevant- same as arguing all banks charge for going over limit) The monthly charge in sub prime market is typically £50 - £60 although SPML charges £65 and Rooftop £75 a month) (Irrelevant)Letter charges are typically £15-£30. The swift tariff provides for a monthly charge of £70 when the account is over 2 months in arrears and there is no arrangement in place. In such a case the account has to be actively managed and such activity can clearly be seen from the computer history. When the charge of £70 is applied then no other fees are applied for letter and calls. This compares more favourably to other lenders charging processes. (Irrelevant)The tariff also provides that additional charges above the £70pm will be charged if solicitors are instructed. This is because under swift’s arrears policy this issue of legal action, inc warrants for possession can only be authorised by a senior manager or their delegated assistant, requiring further reviews of the account. Swift also has to carry our work in providing additional info to the solicitors for the preparation of the summons, statements of truth and up to date reports for the hearings. 2 items were charged for during this period of £33 and they are related to returned bank payments and reflect the costs we incur with our bank and admin work we have to do in such cases. During the months where a £70 charge is applied we carry out the following activities:

 

· Letters are sent to the borrowers and letters are received Proof? are they automated?

· Phone calls are made Proof?

· Regular file reviews are carried out by the collections manager or his assistant Proof?

 

Liaison with solicitors and any other 3rd parties inc any various other defaults

 

Litigation Fees

 

23. This relates to the D costs of the legal action taken for the possession of the claimant’s property. Under clause M swift are entitled to recover from the borrower 2all reasonable costs and expenses we have to pay or decided to charge” The judge ordered for the costs of the hearing that day were not to be added to the security. Accordingly swift reimbursed the borrowers the fee.

 

Admin Fee £40

 

This is not a default charge but relates to the telegraphic transfer fee we charged when we completed the loan so the funds could be sent to the borrowers more expediently (This is a legitimate charge)

 

Issue Fee £150

 

This is not a default fee but relates to the court fees for issuing the possession hearing (This is a legitimate charge)

 

Form to Land Reg £35

This is the fee set out in the tariff for obtaining copies and searches from HM Land Reg required by the court under CPR when a claim for possession is issued (This is a legitmate charge)

 

Data Protection Act Charge (you should have listed this as costs reasonably incurred in bringing your claim)

 

This is not a fee payable under the credit agreement.

 

Fees and charges general issues

 

24. Swift deals with referrals from mortgage brokers who are unable to place their application with main stream mortgage lenders. These borrowers generally have a history of default and a poor credit rating, and therefore require more intensive processes to ensure payments are received. (So what are these intense processes provide evidence) The C had 1 CCJ from 3 years previous and had arrears with the previous first mortgage with GMAC

(We had 2 months arrears with GMAC which were the last 2 months we were with them)

25. In general terms swift carries out reviews of its tariff fees and charging procedures from time to time. Its subsidiary company swift 1st ltd is a FSA regulated mortgage firm. When swift 1st ltd applied to FSA for authorisation it was required (as every application is required to) to give an assurance that’s its charges were fair and reasonable and would continue to be so.(FSA does not set what charges are lawful nor investigatr unlawful charges) To do this we have reviewed the income from arrears charges as against the costs of managing and running the arrears function. (I would add that the tariff of swift 1st ltd and swift advances plc are the same) The cost we took into account are as follows:

* Payroll

* Credit control

*Proportion management / IT/ Accounts /Compliance

* Apportionment of the following costs relating to credit control

* Premises costs

* Stationary and telephone

* System costs

* Additional finance costs

 

The analysis we carried out showed that there was parity between income received and expenses incurred from the credit control function. (Which is?)I would add the OFT in its recent work on default charges have accepted that it is difficult to make a pre-estimate of costs attributable to an individual defaulter on each occasion and that it is not unreasonable to apportion costs based on the defaulters fair share of the overall costs. It still needs to be a genuine pre-estimate of costs and not excessive in comparison to any actual loss which could conceivably flow from the breach.

 

26. I would add that swift is a relatively small lender and so does not benefit from the economies of scale available to some volume lenders

 

27. In the light of the above, I verily believe that all of the costs and charges have been properly incurred and are reasonable in amount. These costs could have been avoided had the account been conducted satisfactorily and the payments made on time.

 

28. I believe that the facts stated in this witness statement are true.

[mrsfoot]

Thank you both for your responses.

 

I have requested a CPR part 18, which they objected to on the ground that i would receive the information via their witness statement which was not inc. I asked for a full breakdown and certified evidence of all expenditure. They sent the above info in the W/S.

 

I was thinking maybe to approach court to ask defence to be struck out on the grounds that they will not provide info even after sending CPR 18? Should i send a further CPR 18 to them (even though i was very specific in first?) Should i ask the Judge to order part 18?

What do you think? what are your suggestions now? Really appreciate all you are doing

[mrsfoot]

bump...anyone anything?

[mrsfoot]

Ok quick update

 

Have sent letter to court asking for further directions for the defendant with regards to Part 18. I need specific info, and im determined to get it off them. I wont back down so if your reading this watch out!!!!!