bristol west erc

[darkflex152k]

hi,

first ever post !! i have emailed bristol and west about erc totalling almost £7k, have had a standard letter back from MrsTucker advising i signed the terms and conditions etc. I relised I went about it the wrong way so have sent them the following template

 

Request for repayment of early redemption charge

 

Dear Sir/Madam

 

Account Number: xxxxxxxxx

 

I am writing to request a refund of the early redemption charge of £xxxx which was debited to my account on xx/xx/xxxx. I now understand that this charge is in all likelihood disproportionate to the costs that you actually incured. As such, this penalty is unlawful at Common Law, Statute and recent consumer regulations. Such disproportionate charges are considered to be unfair per se by the OFT who reported on 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.

 

If you believe that this charge is proportionate to the costs you have incured as a result of the early redemption of my mortgage, could you please demonstrate this by providing a full breakdown of those costs or a pre-estimate of your losses. Please note that I do not require an explanation as to why this charge was made; I am fully aware of the terms and conditions of my mortgage. What I require is a breakdown of your costs in order to reassure me that the charge is justified.

 

Having taken legal advice on this matter it is very clear, as you will no doubt be aware, that English contract law requires such charges to be a genuine pre-estimate of your losses. In the case of Castaneda and Others v Clydebank Engineering and Shipbuilding Co Ltd., (1902) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incured from a breach of contract as opposed to a charge which represents a penalty. This was upheld in the case of Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79. In addition to this, your charge represents an unfair term of contract which is contrary to the Unfair Terms in Consumer Contracts Regulations 1999 (SL. 1999/2083). 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 also like to bring to your attention 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 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 at Common Law and (in a consumer mortgage) under the Unfair Terms in Consumer Contracts Regulations.

 

The fact that I signed the mortgage offer containing the term relating to the early redemption charge does not make this term enforceable, as I’m sure your legal department are fully aware.

 

I will now give you 14 days to reply to me accepting, unconditionally, my request in principle and letting me know a date by which I will receive payment.

 

If you do not respond, or if 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. While I would like to settle this matter amicably and without the need for court action and the attendant publicity this will receive, you can take this letter as 28 days notice of my intention to issue a claim should you not comply with my request. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.

 

Yours faithfully,

 

 

***anyone had any luck with this ??**

[zootscoot]

Hi Darkflex,

 

Bristol & West aren't the easiest of companies to deal with AlanfromDerby has recently had success with them (not ERC after a long battle starting in February (I think but may be wrong).

 

It is still early days, although there have been several successful ERC claims have a look through the other institutions successes. In particular Halifax, Birmingham Midshires, Alliance and Leceister, Natwest and Gmac have all paid out on ERCs.

 

There are a few claims against B &W going through at the moment.

 

Best of luck

 

Zoot

[darkflex152k]

just had a reply today :normal blurb then :

 

i note your comments this " penalty is umlawful at Common Law, Statute and recent consumer regulations" however we are not aware that there have been any rulings around these charges, if you are able to provide appropiate literature with this regards, we will review and consider accordingly.

 

You go onto say that we should not refer to your contract, however this is impossible as you make reference to the Unfair terms in Consumer ContractsRegulations (SL199/2083). You also refer to your mge agreement which itself is your contract with us. At the time you entered into this contract all terms were clearly set out. You had legal representation, so would have been advised of these terms.

 

The mge product which you agreed to take , gave you a beneficial intrest rate, which if repaired earlier resulted in the ERC, and this was made transparent at the outset

 

The mge deed itself would refer you back to the terms under whcih the mge was granted, which would confirm the fees payable.

 

If court action is iniated we will produce this letter. I am unable to comply with your refund for the ERC

 

 

WHAT NOW ???????????????

[darkflex152k]

Apologies for typos !!

[zootscoot]

Hi Darkflex,

 

wait the appropriate time and send the LBA.

 

All the best

 

Zoot

[darkflex152k]

...sorry do I not try and give them more time.... what is the appropiate time to give them ??

 

any one have any luck with bristol and west ??

[zootscoot]

14 days after preliminary letter.

[alisonf]

Hello,

 

I sent off the prelim letter waited 14 days then sent off the LBA, they were rude enough to offer me a measley £60. I am in the middle of moving house at the moment so in a week or so I will file a court claim.

 

From everything I have seen and read on this site... stick to your time table as much as possible as they will push it back and back and hope you give up...

 

Do not give up! Its your money!!!!

[darkflex152k]

i have sent them a letter before action "letter" today see what happens now !!

[alanfromderby]

Bristol & West aren't the easiest of companies to deal with AlanfromDerby has recently had success with them (not ERC after a long battle starting in February (I think but may be wrong).

 

Yes, you are correct - the first letter was sent on 16th February and we are now in the final stages of settlement.

 

Keep strong, ensure that YOU set the timetable, and don't be put off by their attempts to intimidate you with legal jargon and threats over legal costs.

 

Look forward to reading your progress, although zoot is the expert on ERC's.

 

All the best.

[alisonf]

Hey darkflex hows it going?

 

Have you filed? Sorry no response in ages Ive been offline moving house.

[Fullyskinted]

I sent my LBA last week. No news as yet...

[darkflex152k]

hi,

sorry for the delay in responding, no i haven't done so, i have other mortgages with b west and am concerned they might do something to them, I want to make sure it it solid for success before i take them to court, I send them the LBA letter and they basically rebuffed me again saying no, i signed the terms and conditions etc

 

Regards

[dolly]

Don't even think about issuing a claim in the current climate.

[alisonf]

Don't even think about issuing a claim in the current climate.

 

Ditto, I've put mine on ice for now

[Rooster-UK]

Darkflex.

 

DO NOT FILE YOUR CLAIM !

 

There have been a number of claim during the last week that have been defeated, leaving the user with a huge bill for the costs including the cost of a barrister.

 

Put your claim on hold for the time being.

 

Regards, Rooster.