Doyin v Halifax **ERC PAID OUT IN FULL**

[doyin22]

Now that i seem to be on a roll with my bank charges, I'm going to start going after my mortgage fees.

 

Prelim sent 16th Oct.

 

 

Request for repayment of charges

 

Dear Sir/Madam,

 

 

My request

 

I am writing to ask you to refund the charges which you have levied from my account since inception. I now understand that the regime of fees which you have applied to my account in relation to application fees, early redemption fees and so forth are unlawful at Common Law, Statute and recent consumer regulations. If you say that they are not, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put by as a result of my breaches, in order to reassure me that your penalties really do reflect your costs?

 

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). My 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. I would vigorously contend that this is the position regarding the redemption fee of £823 and exit fee of £175 which you deemed fit to apply to my account.

 

Furthermore a fee levied requiring us to indemnify you against any commercial risk to yourself in offering us a reduced interest rate in order to attract our custom is also contrary to s.4 Unfair Contract Terms Act 1977. We are confident that a court is likely to consider this clause to be unreasonable within s.11 of the said Act as a large commercial institution such as yourselves is in a far better placed position than us as consumers to bear the burden of the vicissitudes of business.

 

I would like to bring your attention to the following statement by The Office of Fair Trading:

 

"A term in a mortgage agreement which requires the borrower to pay more for breaching the contract terms than actual costs and losses caused to the lender by the breach (or a genuine pre-estimate of that) is likely to be regarded as an unfair penalty and to be unenforceable both at common law and (in a consumer mortgage) under the Unfair Terms in Consumer Contracts Regulations. A redemption charge may be regarded as a penalty even if it is expressed as the price for exercising a right rather than a consequence of breaking the agreement."

 

I believe that the charges you have levied of £998 for exit fees, and early redemption 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

 

 

I 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.

 

I am 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.

 

 

My targets to resolve this matter

 

I really hope that this matter can be resolved amicably and without the need for redress to the courts. Thus I am asking that you refund the charges which have unlawfully been levied on my account. Failure to refund all the money unlawfully taken from us will result in us taking further action. I will give you 14 days to reply accepting, unconditionally, my request in principle and letting me know a date by which I will receive payment. If you do not respond, or you do not respond positively, within this time period, I shall send you a letter before action giving you a further 14 days in which to reflect. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.

 

After that, there will be no further communication from me and I shall issue a claim at the expiry of the second deadline. Thus take this letter as 28 days written notice of our intention to issue a court claim should you not comply with my request. I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you will prefer to do this than merely respond with standard letters and leaflets.

 

Yours faithfully,

[paddym]

good luck you seem to have it all under control !

[mooreda]

please keep us posted with responses

[doyin22]

I've now had a 4 page letter reply from the Halifax who basically say their fees are justified however as a matter of goodwill they will offer me £500 compensation for my arreas and Repayemnt Fee charge.

 

My breakdown of charges are:

Product arrangement fee - £399

Higher lending Charge - £1069.40

Deeds Dispatch Fee - £50

ERC - £823.81

Arreas Charge - £310 Refund offered

Repayment Admin Fee - £175 Refund offered

Total claiming £2826.40

 

Does anyone know if I should still go after these charges especially the Higher lending and arrangement fees?????

[doyin22]

I went for fees below from the halifax and I've now had a 4 page letter reply from the Halifax who basically say their fees are justified however as a matter of goodwill they will offer me £500 compensation for my arreas and Repayemnt Fee charge.

 

My breakdown of charges are:

Product arrangement fee - £399

Higher lending Charge - £1069.40

Deeds Dispatch Fee - £50

ERC - £823.81

Arreas Charge - £310 Refund offered

Repayment Admin Fee - £175 Refund offered

Total claiming £2826.40

 

Does anyone know if I should still go after these charges especially the Higher lending and arrangement fees?????

 

My next point would be to file with MCOL.

[nathal]

higher lending charge cannot be claimed or arrangement fee.

but erc can be claimed

[doyin22]

I'm worried now, I just got a letter from DLA Piper who halifax have now appointed and they ask me to drop my claim based on recent claimants who have been unsuccessful. They say if i cancel my court date with seven days they will not claim fees against me. They have also send me print outs of the lastest news from the Mods of this site advicing people to not start new claims.

I'm not sure what to do, should i quit while i'm ahead?

 

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/36851-new-claim-halifax.html

[Tellllll]

I'd scan the printouts and post em on here if I was you. Maybe they have stooped so low to commit forgery!!!

 

I'm sure the alleged writers of these printouts would like to comment...assuming the 'writers' exist ofc.

 

T

[dx100uk]

well you've just showed them your hand then, should have PM'ed a moderator

someone else has just settled for 65% of erc claim

how about making them an offer

it might just stall things till we jump this lastest hurdle.

 

dx100uk:-)

[zootscoot]

Thats the fourth person to get that!

 

Bloomin cheek you'd think they could write their own responses!

[zootscoot]

Hi Doyin,

 

I have merged your threads.

 

If your claim is small claims you may want to push for a bit more as they would stand to foot their own legal bill even if they if they go to court and win.

 

It depends on whether you want the added hassle or wanted to settle for the quiet life. Have they offered to repay your court fees?

 

If it does go to court you will have to pay their disbursements such as travelling expenses etc but not their legal costs. If you push for more and they refuse they could then withdraw the no costs offer and you would either have to pay their legal costs or go to court. Its not a foregone conclusion that they would win if it did go to court.

 

If its fast track accept their offer and run!

 

Ultimately the decison is yours

 

All the best

 

Zoot

[doyin22]

My calim was for £2200 but they have repaid me £800 for the charges and only owe me £1400 for ERC and exit fees.

If i don't have to pay their fees then i will go ahead with my case unless they offer to settle.

I will scan the letter i received and post it.

[doyin22]

Good news...

 

I've got an email from DL piper offing full settlemet on my ERC charges. They have notified the courts that they will settle befor ethe 11th May (our court date) so am just waiting on the cheque.

[zootscoot]

Fantastic news!!!!!!!!

:D

Congratulations

[mochamoo]

Good news...

 

I've got an email from DL piper offing full settlemet on my ERC charges. They have notified the courts that they will settle befor ethe 11th May (our court date) so am just waiting on the cheque.

 

 

Well Done!

[mattfromnotts]

Does this now mean I should continue with my ERC claim against the Halifax? I have had the standard fob off letters and have given them 2 or 3 months. Or are we still awaiting Morgy's appeal?

[zootscoot]

How much was it for?

[mattfromnotts]

£2,394

[zootscoot]

Its small claims so they are unlikely to take it to court to defend. They have paid out in full on a few occassions now since the defeats.

 

Ultimately the decision is yours

[mattfromnotts]

Can you point me in the direction of some recent successes please?

[mattfromnotts]

oh sorry - the similar threads are underneath. Thanks!

[mattfromnotts]

I see that Doyin22 used MCOL - is that the online filing method? Is there any particular advantage/disadvantage to filing an online claim (£2394)?

 

Matt

[brownie24]

Hi Doyin22

 

That is fantastic news that you have reclaimed your ERC back from Halifax.

 

I have been considering trying to relcaim my ERC from Birmingham Midhsires (part of the Halifax group), my claim would be just short of £5000. Due to this recent success do you think I would be wise to give it a go? Surely if they could not defend in your case they realise that their defence is a weak one, if any.

 

Brownie24:)

[doyin22]

Hi brownie24

 

I think you should go for it. I claimed money back from B & M and they were the easiest. They paid out quickly, read my Thread how i claimed from B & M.

[brownie24]

Thanks doyin

 

V. interesting I am off to read your thread right now:D

 

Brownie24