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Mortgages FAQ


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Mortgages frequently asked questions:

 

Do I need to do a S.A.R - (Subject Access Request)?

 

Yes do a full S.A.R - (Subject Access Request) for all the information the mortgage provider holds on you. Including any instances of manual intervention. It is important you have as much information as possible.

 

How do I claim?

 

The same basic process applicable to bank charges applies in that you send a preliminary letter asking for a breakdown of charges, followed by an LBA after 14 days. After a further 14 days issue a claim either through MCOL or via N1:

 

see:

 

 

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/71276-mortgage-charge-templates-prelim.html

 

 

 

It is recommended that you use the N1 route as MCOL is quite limiting in the wording that you can use.

 

What charges can I claim from a mortgage account?

 

It is still early days in relation to mortgage claims but as a basic rule you can claim for excessive charges which relate to a breach of contract.

 

Here are some examples of charges which have been successfully claimed:

 

Late payment charges

Returned direct debit charges

Admin charges for closing a mortgage

Penalty interest

Deeds dispatch fee - note it is quite likley that these will no longer be successful following the ruling in Smith v ME that there is no breach of contract where you end a mortgage before the contractually agreed date.

 

NB Different companies may give the charges different names.

Also note none of these claims actually went to court and therefore there is no precedent set regarding whether these charges are lawful or unlawful. There is therefore no guarantee that your claim will be successful. You should not commence action unless you are happy to argue your case in court.

 

 

PLEASE NOTE AN ERC CLAIM HAS BEEN LOST IN COURT AND TWO ERC CLAIMS HAVE BEEN STRUCK OUT BY THE COURT

 

A CLAIM FOR CHARGES HAS ALSO BEEN LOST AND ANOTHER STRUCK OUT.

 

 

 

 

You can not claim:

 

Interest normally due on the mortgage

Arrangement fees

Solicitors’ fees

Fees for arranging your own insurance

Higher lending charge

Early redemption charge

 

 

 

Should I make a claim against my current lender?

 

 

It is suggested that you exercise caution against claiming against your current lender. Whilst they can not terminate your mortgage in response to a claim (they would have to get a court order first) you may require them to be sympathetic in the future if you get into difficulties. However, with some of the more ruthless sub prime lenders, (you know who they are!) they may afford little sympathy in any event and therefore you may conclude that it is worthwhile pursuing them. This is entirely your own decision which you will be best placed to decide.

 

 

My claim is more than 5k/15k what are the implications?

 

The Civil Justice System divides claims into three tracks to decide which court will hear the case:

 

Small Claims Track - claims under £5K- heard in small claims court

Fast Track - claims £5-15K- Heard in the county court

Multi -Track - Claim over 15k or claims of lower value but greater complexity. Can be heard in either the County or the High Court.

 

Once you have filed your claim in court and the mortgage provider files their defence this will raise the track allocation process. There is some discretion to allow higher claims to go to a different track particularly if it is a consumer issue as the small claims is basically designed to be a consumer court. You can state your preference for the small claims court in your allocation questionnaire, but the judge will also take into account the wishes of the defendant. There may be an allocation hearing either by phone or by attending court.

 

There are different rules and procedures which operate in each court. So with small claims, the parties can not claim their legal costs from the losing party and rules on disclosure are limited. The use of lawyers is discouraged and the court is specifically designed for consumers who are not fully conversant with the legal process.

 

In the fast track fixed costs can be claimed by the winning party. With the multi - track all legal costs can be claimed by the winning party. There are no fixed costs. Only barristers or solicitors with extended rights of audience can represent in the High court which generally means employing two lawyers. Costs can therefore escalate considerably.

 

NB IF YOUR MORTGAGE CONTAINS A CLAUSE WHEREBY YOU INDEMNIFY THEM FOR LEGAL COSTS YOU MAY STILL BE LIABLE FOR THEIR COSTS EVEN IF YOU ARE ALLOCATED TO THE SMALL CLAIMS TRACK AND EVEN IF YOU WIN. THIS CAN APPLY EVEN WHERE THE COSTS ARE GREATER THAN THE VALUE OF THE CLAIM.

 

The court has told me I must attend an allocation hearing what arguments can I use?

 

1.It is a consumer dispute and should be allocated to the small claims court which is designed particularly for consumers.

2.Under the overriding objectives of the Civil Procedure Rules there is an obligation on the judge to ensure the parties are placed on an equal footing. As the defendant is a huge financial institution it would be unfair to place this in the fast track as they would have the advantage in being able to bear the risk of costs whereas you do not.

3.The points of law relied upon are well established and settled law with no complex issues of interpretation. There is thus no need for it to go to the County Court/High court.

 

 

4.Either:

The claim is well below the 5K threshold. You filed the claim believing it would be dealt with in the small claims court and did not anticipate the risk of bearing the costs in the Fast Track. So to transfer to fast track would be grossly unfair.

 

Or

You filed the claim believing it would be dealt with in the fast track and did not anticipate the risk of bearing the costs in the Multi Track. So to transfer to Multi track would be grossly unfair.

 

5. Whilst you have repeatedly tried to contact the defendant to resolve the issue, they have failed to respond to any communication, they have refused your request for a breakdown of their costs in order to satisfy you that their ERC was lawful.

 

6. You believe fully in the justice of your case and if it is to be transferred to the Fast /Multi-track request the court orders that no costs order will be made against you.

 

Are secured loans the same as mortgages?

 

Secured loans over £25K are exactly the same as mortgages

 

Secured loans under £25K are generally governed by the Consumer Credit Act of 1974 (with the exception of those offered by Building Societies or Local Authorities).

 

For secured loans governed by the CCA 1974, Regulations set out the amount payable on redemption. The courts therefore can not interfere with an ERC calculated in accordance with these Regulations.

If your secured loan is governed by CCA 1974 (not all will be check out s.16 for exempt agreements) then s.95 (1) entitles you to a rebate of charges to credit.

 

http://www.passprotect.studio400 .m...Act_1974. PDF

 

The Consumer Credit (settlement Information) Regulations 1983 requires the creditor to give a statement of amount required to pay off the loan and how this was calculated. The Consumer Credit (Early Settlement) Regulations 2004 (see link below) regulates the calculations and these cannot be contracted out of to the detriment of the consumer (s.173 (1) CCA). So an ERC which requires payment over that provided for in the Regs would be classed contracting out of the Regulations to the detriment of the consumer.

 

The Consumer Credit (Early Settlement) Regulations 2004

 

These Regulations only apply to loan agreements taken out since 31st May 2005. These Regulations replace Consumer Credit (Rebate on Early Settlement) Regulations 1983 which contained similar provisions. Trading Standards have software which can check the calculations provided by a loan company. It’s often referred to as rule 78.

 

The Consumer Credit Act 2006 will lift the 25K limit on loans on 6th April 2008.

 

How long can I claim back for on mortgages?

 

S.20 Limitation Act 1980 provides that the time limit for actions to recover money secured by a mortgage or charge or to recover proceeds of the sale of land

(1) No action shall be brought to recover--

(a) any principal sum of money secured by a mortgage or

other charge on property (whether real or personal); or

(b) proceeds of the sale of land;

after the expiration of twelve years from the date on which the right

to receive the money accrued.

 

This means that if any charges have been added to the principal sum you can claim back 12 years. However, be careful as unless any charges have been capitalised they have not been made part of the principal sum and therefore the normal 6 years will apply.

 

If you are wishing to claim back fees beyond 6 years which have not been added to the principal sum you would need to invoke s. 32 of the Limitation Act. It is suggested that you only do this if you are fully prepared to research and fully understand the implications before commencing on any court action.

 

What interest can I claim?

 

1. Interest that you have been charged in relation to the unlawful charges

If you are claiming late fees and these were added to your mortgage balance as oppose to paying these as they arise then you would have paid interest on these fees at the contractual rate you can claim this. If you are claiming fees which were applied on terminating the mortgage you would not have paid interest on these.

 

2. Contractual or statutory from the date of payment of the charges.

 

You are entitled to claim statutory interest at 8% from the date the charges were paid.

Some people have chosen to claim the contractual rate of interest in lieu of the statutory interest (NB you can not claim both). This may be advantageous as the contractual rate is compounded whereas the statutory is simple interest. There is however, no absolute right to contractual interest and is available at the discretion of the court. If you do decide to claim contractual rate in lieu of statutory interest always give the statutory rate as an alternative.

 

 

 

My mortgage provider is seeking repossession what can I do?

 

Seek legal advice! Where your home is at risk this is beyond the scope of a self help forum, although some pointers to be aware of:

 

A mortgage provider can not evict you without a possession order from the court. If you leave without having received a possession order they need not obtain a possession order and can go straight for a sale order.

 

If they apply to court for possession you can rely on s.36 (2)(b) of the Administration of Justice Act 1970 which allows the court to suspend the possession order for such a term as the court considers reasonable. If the debtor can repay with in the reasonable time no possession order is granted.

 

Under s8 AJA 1973 in exercising the powers under s.36(2)(b) the court only has to consider the sums payable in arrears not any term which may render the full amount repayable.

 

What amounts to a reasonable period will depend on the circumstances of the case and can include the whole remaining term of the mortgage as occurred in Cheltenham & Gloucester v Norgan. This case also stated the factors the court will take into account when deciding what is reasonable:

 

Ability to make payments now and in the future

Likely duration of financial difficulty

Reason for arrears

The period of agreement remaining

 

So basically if you can show you can pay off the arrears over the remaining period the court will not order possession.

 

Further info on mortgage arrears can be found here:

 

http://www.bdl.org.uk/images/bdl01_e...eArrears. doc

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