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DOC8207

Reclaim Excessive Mortgage Arrears Fees - Amber Homeloans scottish SPC Claim issued - help*** Success***

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Hi all

 

I had a mortgage with Amber Homeloans for approx. 8 years until 2017 and due to my own poor financial mismanagement, I incurred many fees for arrears, etc. Whilst I accept fault, given the time that has passed, is it still viable to pursue Amber for any excessive fees charged which were greater than the administrative cost to them?

 

I am about to request statements from them in order that I can collate a list of charges, but perhaps it's not worth my while?

 

Thanks.

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You certainly should claim everything you can.

 

Get the information you need and then come back here. You are probably better off sending them an SAR which should oblige them by statute to supply you with all of the information you require

  • Confused 1

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Thank you. I will go ahead with the SAR and take it from there.

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I went ahead with the SAR and received a large pile of paperwork in the post today!

 

I've been through all the transactions and the fees amount to the following:

 

30/04/2009 Monthly Arrears Fee £680.07

07/08/2009 Solicitors Costs £623.44

01/12/2009 Solicitors Cosrs £339.71

22/02/2010 Solicitors Costs £323.10

30/04/2010 Monthly Arrears Fee £650.00

10/08/2010 Solicitors Costs £70.50

14/10/2010 Agents Costs £58.75

30/04/2011 Monthly Arrears Fee £150.00

03/01/2012 Rtd Payment Fee £10.00

30/04/2012 Monthly Arrears Fee £50.00

03/09/2012 Rtd Payment Fee £10.00

01/11/2012 Rtd Payment Fee £10.00

30/04/2013 Monthly Arrears Fee £300.00

02/12/2013 Rtd Payment Fee £10.00

02/01/2014 Rtd Payment Fee £10.00

30/04/2014 Monthly Arrears Fee £150.00

 

TOTAL - £3,445.57

 

Where do I stand in terms of what can and cannot be potentially reclaimed (if anything)? I fully appreciate the arrears were my fault so it really comes down to a case of whether the fees were fair and proportionate.

 

The monthly arrears fees seem to have been applied annually and there's no breakdown as to how these were calculated on the transaction history.

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were you taken to court at any time?


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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were you taken to court at any time?

 

No. Repossession proceedings did commence but were cancelled after I called them and agreed a payment plan.

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Then there was Solicitors involved...hence the fees.


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  • Confused 1

please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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Ok, thanks.

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I just tried to ask the template letter for mortgage arrears fees but don't have the necessary permissions. Do I need a certain amount of posts on the forum?

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nope

click the library tab top left

have you done the spreadsheet?


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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Just doing the CI spreadsheet just now. 2 questions:

- is the 'Claim to' date, the date the mortgage was redeemed?

- what do I put in the Interest Rate column when the rate varied over the claim period?

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you can only charge them at their int rate until the date they no longer charged it.

and you can use an avg.

 

it might pay you to use the statint sheet, this gets you flat rate s69 8% across the whole timescale till the date they settle.

 

dx


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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Thanks. I've used the statint sheet as suggested.

 

Letter sent to Amber Homeloans today so now a case of waiting before taking next steps.

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Amber Homeloans have now responded to my letter of complaint.

 

I claimed for all Monthly Arrears Fees (£1980.07) plus 8% statutory interest (£1320.86).

 

They have stated that original fees are core terms of contract and and that they believe hem to be a reasonable estimate of costs incurred, listing activities that are involved with the administration of managing the account. However, as a gesture of goodwill they propose to refund £701.52 for arrears fees that were applied during months where a payment greater or equal to the contractual monthly payment. They state this is in no way an admission of liability on their part.

 

My thoughts regarding next steps are:

- I write to them to decline their offer

- Ask them to refund the full amount of mortgage arrear fees and 8% statutory interest

- Complete and include a copy of the Simple Procedure Courts Form for the Scottish courts to show my intentions

- If they then fail to pay out, I shall send the relevant paperwork to my local Sheriff Court to initiate court proceedings against them

 

Does this sound a reasonable course of action, or would I be better to accept their offer at this stage?

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Yes


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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Amber Homeloans have responded, advised they are not contractually obliged to justify how charges were incurred, and refused my claim for a refund of mortgage arrears and returned payment fees. 

I intend to now to make a claim via the 'Simple Procedure' in the Scottish courts which is the process to resolve disputes up to £5000.

I've read various accounts on the forum of how people have raised claims via the English courts and have borrowed some of the wording used by others. The Scottish 'Simple Procedure' is very straight forward and they provide a user friendly form to complete which is free of legal jargon.

Do my responses to the following questions look right in terms of raising this claim? My responses are in bold.

 

Q. What is the background to your claim. In this section you should briefly describe the essential facts about the story behind your claim. You do not need to set out every detail of the story. You should focus on the parts which are important for you to establish your claim.

A. I entered into a mortgage agreement with the Amber Homeloans Limited on or around X for the amount of £X. The Mortgage was settled on or around X upon the completion of the sale of the mortgaged property.
 
The mortgage was subject to the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR)
 
Amber Homeloans are statutorily bound by the Financial Services Authority Regulations - Mortgage: Conduct of Business Rules (MCOB) contained in the FSA Handbook, implemented under the Financial Services and Markets Act 2000
 
Amber Homeloans levied mortgage arrears fees and returned payment fees totalling £2030.07. These were added to the mortgage account and interest was applied.
 
The charges were levied at a rate which exceeded their administrative costs.
 
The level of charges were unfair because the breach the requirement of fairness contained in the UTCCR.
 
The level of charges is also unfair because they are the result of unfair treatment by Amber Homeloans and therefore levied in breach of their statutory duty to treat their customers fairly contained in MCOB (section 12.5)
 
For this reason, the interest charged on the unlawful charges is also unlawful.

Q. If your claim is successful, what do you want from the respondent?

A. I want Amber Homeloans to pay me:
- £2030.07(charges applied to my mortgage account)
- £1461.91 (compound interest on the charges applied to my account - calculated at average rate of interest between X and X
- £1330.88 (statutory interest at 8%)
- TOTAL - £4822.86
£0.43 additional statutory interest to apply each day until settlement of claim

Q. Why should your claim be successful?
A. These charges appear to represent an unfair term of contract which is contrary to the Unfair terms in Consumer Contracts Regulations 1999 (SI. 1999/2083) I believe their charges constitute an unfair penalty under Schedule 2 of Regulation 5 of the Regulations as they are disproportionately high fees. 
 
The charges levied far exceed any true cost to Amber Homeloans as a result of my breach and any genuine pre-estimate they could conceivably reach.
 
The Financial Services Authority have ruled that it is unfair and thus unlawful to apply charges which exceed the actual administrative costs incurred. 

 

Q. What steps have you taken, if any, to try to settle the dispute with the respondent.

A. I issued a letter of complaint to Amber Homeloans on 4th February 2019 asking them to refund all mortgage arrears fees including 8% statutory interest. I received a response on 16th February 2019 in which they declined to uphold my complaint, did not admit any liability, however, offered a goodwill gesture payment of £726.52. I declined their offer.


 
 
 

 

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I think I would add somewhere these two points.

all the charges were of a fixed sum penalty nature for being constantly in Arrears at the time each CMI payment fell breaking the published terms of their T&C's.

These charges and their inclusion in their T&C's can be challenged, as we can witness from the current PPI Reclaiming era and formerly the Bank Account charges era.

 

  • Like 1

please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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Apologies for not understanding, but could you expand a little on what this actually means?

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T&C's state the level of arrears fees do they Not?


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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Yes, apologies I think I just misread it first time!

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I raised the claim via the Scottish court's Simple Procedure in early May.

Amber have disputed the claim, and now the  Sheriff would like to discuss this case with both parties before ordering a formal court hearing.

 

The Sheriff has made the following decision:

 

The Claimant is ordered to write to the court and to the Respondent at least 14 days before the date of the case management discussion to clarify these issues:

 

1. To state whether he accepts or denies he was contractually bound to make payment of mortgage arrears fees;

 

2. To explain why he is not personally barred from raising the claim, having redeemed the mortgage, and having accepted the mortgage arrears fees included therein.

 

The Sheriff, dismisses the part of the claim relating to compound interest charged by the Claimant.

 

I have been requested to attend a Case Management Discussion along with Amber Homeloans. 

 

At the Case Management Discussion, the sheriff expects both parties to be prepared to discuss the case and to have an open and constructive attitude to the possibility of negotiation or alternative dispute resolution.

 

Any advice on writing to the court/Amber in relation to the points they've asked me to clarify above?

 

My thoughts are that I accept I was contractually bound to make payment of fees, however I am actually making a claim on the grounds that the charges were unfair and levied at a rate which exceeded their administrative costs.

 

Where do I stand regarding being barred from raising the claim on the grounds that the mortgage has been redeemed?

 

Should I be adding further detail in my response and what should I be preparing in advance of the Case Management Review?

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ouch this has escalated without our knowledge

thanks for keeping us update...

 

it might have been better to have consulted us upon your claim and what to state you wanted before doing it.

 

most of what you have received from the sheriff is std court bumf on how a claim progresses.

 

as for if you were contractually bound...poss so, nut just because things were in their T&C's doesn't mean they lawful.

hence the currently ending PPI reclaiming era and the old bank charges reclaiming era..both of those things were in the relevant T&C's but were thus deemed unlawful.

 

as far as im aware the limitations period starts from when you became aware. which is obv within recent times..so the door is open to you to do so and no limitation period has passed.

 

im sure bankfodder will tidy up on the rest and further clarify.


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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Thanks for your response.

 

All the details of my claim are in post #17 above and you'd kindly suggested some additional wording which I added when I submitted the claim.

 

That was in February and I simply never got round to raising the claim until May so there was nothing new to report. 

 

I'll have a go at drafting my response to the court and then post it here. 

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In response to the court's request, I intend to respond as follows. What do you think?

 

1. To state whether he accepts or denies he was contractually bound to make payment of mortgage arrears fees;

I accept I was contractually bound to make payment of mortgage arrears fees, however my claim specifically relates to the fairness of the fees charged, not whether I was contractually bound to pay them. Consumers were contractually bound to pay PPI and bank charges, both of which were subsequently found to be unfair and unlawful, and in most cases, consumers were refunded in full. The Financial Services Authority ordered the following mortgage lenders to repay customers arrears charges which were deemed to be unfair or excessive:

  • GMAC-RFC – October 2009
  • Kensington Mortgage Company Limited – April 2010
  • Redstone Mortgages Limited – July 2010
  • DB Mortgages – February 2011

In each of the above cases, the lenders were ordered to repay the unfair charges in full.

The charges applied to my mortgage account by Amber Homeloans were levied at a rate which exceeded their administrative costs, and thus breach the requirement of fairness in the Unfair Terms in Consumer Contracts Regulations 1999. Other than stating generic tasks associated with the administration of the mortgage Amber Homeloans have been unable to prove that the charges were reflective of their actual administrative costs. The Financial Services Authority have ruled that it is unfair and thus unlawful to apply charges which exceed the actual administrative costs incurred, regardless of whether the customer was contractually bound to make payment of them.

 

2. To explain why he is not personally barred from raising the claim, having redeemed the mortgage, and having accepted the mortgage arrears fees included therein.

With regards to Amber Homeloans defence that I am barred from raising the claim as a result of redeeming the mortgage in 2017, I wish to refer to the guidance issued by the Financial Ombudsman Service who state that consumers can reclaim fees from as far back as they wish, as long as the complaint is made within 3 years of realising they could. Whilst Amber Homeloans advised me of the fees applied throughout the term of the mortgage, I only became aware that they were unfair and excessive in January 2019. Whilst I accept that there was media coverage of the FSA decisions against various lenders in 2009 and 2010, I was not aware of these cases until I investigated the matter further following receipt of information from Amber Homeloans received in January 2019 as a result of my Subject Access Request.

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