~~~**IMPORTANT** Mortgage Claimants ~ PLEASE READ ~~

[Bona]

There are rules they cannot claim travel if the distance is under 10 miles quiet often a county court will not let a barrister be paid more if he has come from a long way than a local one they are not allowed to charge for emails either reading or replying you can object if they chsnge solictor and the new one reads the file which the old one read duplication the list is endless and I appreciate that taxation costs money but we can ask for a breakdown to which we are entitled an then quierie it

Bona

[Bona]

reasonable - not excessive or extreme

[Billy55]

My understanding is that def costs are only revoverable post issue. In addition to this, I no longer have a mortgage with them therefore I no longer have a contract with them, so any clause in the contract relating to costs cannot apply to me.

 

I am going to make a PART 36 offer to my ex mortgage company to settle my claim for .70 of outstanding balance. This puts pressure on them as if they do not accept within 21 days, they risk cost penalties being imposed on them if my case is won in court. As I have five years until limitation expires I am prepared to wait and consider my next move. At the same time the building Society will realise that as everday goes on the interest on the potential debt they owe me accrues.

[Guest willowb]

I no longer have a mortgage with them therefore I no longer have a contract with them, so any clause in the contract relating to costs cannot apply to me.

 

Hummmmm, so the cessation of the contract renders the clauses and terms of that contract unenforceable?.....same argument goes for the processing of personal data to the CRAs....I agree with you Billy but what's the basis of your arguments?

 

Wxxx

[haggartheorrible]

Can someone clear this up, if I send a letter to my old mortgage company, can they apply legal fees towards me.

[Guest willowb]

I'm trying!

same argument goes for the processing of personal data to the CRAs

Surlybond's work in 'legalities', he posted this today.

http://www.consumeractiongroup.co.uk/forum/post-585363.html

 

It's not a new thing and there are templates, largely (entirely) down to SB's work against the CRAs but couldn't the same arguments be used against mortgage companies for indemnity clauses? anyone? Zooman....where have you gone???

 

Wxxx

[Billy55]

Simple, in normal circumstances a Defendant can only recover cost from the Claimant for work undertaken post issue.

 

If there is no longer a contract, then its terms are unenforceable by the mere fact that it doesn't exist.

[zootscoot]

It didn't stop the clauses being held valid in Morgy's and Charbydis' cases. Both ERCs and therefore the contract had ended.

[Glenn UK]

Zoot

 

its funny that you should appear, i was having a discussion with a friend re these ERCs and contractual indemnity terms in the context of closed accounts.

 

I don't know much so forgive me if you have been over this ground before.

 

These indemnity terms are generally in place to allow the mortgager to recoup their costs in the even of a default by the mortgagee, or at least thats what i thought.

 

As an example if they needed to repossess due to defaults then this allowed them to add their costs to the debt owed to them.

 

Anyway, irrespective of my initial thoughts, wouldn't the actual term in the contract dictate what could and couldn't be recovered from the claimant post contract?

 

Or are they so wide that they can be used for anything remotely legal?

 

I ask because as you know i have a ERC i was considering chasing and as yet i don't have a copy of the original agreement.

 

Glenn

[bombardier]

I've been reading this thread with interest.

 

I moved last November but have so far not claimed against GE Money. I paid 6 months interest - £4962.36, and felt this was grossly unfair. My reasons are my own, and may not be agreed with by everybody on this forum, but I thought I'd share them to demonstrate that there are many different reasons why people feel they are right to challenge these fees.

 

My own reason is that the person we were buying from was a nightmare. In the end we had the choice, do we lose our whole chain, and therefore our buyers, or do we move into rented? GE Money had already told us that our mortgage was not portable, so even if we took out another mortgage with them we would have to pay the ERC. We opted to keep our buyers as we needed to move for personal reasons, and went into a rented house.

 

They also charged me £529.76 in interest, even though I had given more than 1 months notice that I was to redeem. It was only after complaining that they gave me this back 'as a gesture of goodwill'. The fact that my terms state the 1 month waive clause means that it wasn't goodwill at all, they had to give me that back. To this end, they are just after as much as they can get. I gave them plenty of notice, it was a sub-prime interest only mortgage (above the BOE interest rate) and so there is no way on this earth that it cost them £4962.36 when I paid off the mortgage.

 

So yes, there was this 'opt-out' right, but when a company makes it impossible to avoid this charge, despite the customer wanting to remain with them and no matter what the situation, how is that fair? They are punishing people for moving house, plain and simple. Moving house is a right that everybody has, but when the timing of that is dictated by mortgage lenders, something is just not right.

[Billy55]

Zoot,

 

What do you mean when you state that the terms were held valid?

 

I would have thought it more likely that Morgy etc became liable for costs post issue of their claims under the indemnity principle, not because there was a clause in their contracts with their mortgage companies

[Guest DEATHLORD]

please people bear with me here,

But if the terms are NOT some thing yu can disagree with nor have any say over then this is an unfair contract term?

Come on mods lets have some help here as if you walk away then these companies are watching like wolves.

These contracts are ALL in their favour which is not right.

I am still going on as I believe the contracts are un fair and that if you send in the aQs statement then the courts have to agree to it as it is in your human rights to have a fair tial.

[Billy55]

Novel idea deathlord

 

 

you are of course right you do have the right to a fair trial under the Human Rights Act, however you may still end up paying dearly for exercising that right if you were to lose!

[zootscoot]

What do you mean when you state that the terms were held valid?

 

I would have thought it more likely that Morgy etc became liable for costs post issue of their claims under the indemnity principle, not because there was a clause in their contracts with their mortgage companies

 

No it was made explicitly clear that the cost were payable under the contractual provisions

 

Here are some relevant extracts

 

JUDGE HICKINBOTTOM: Yes, the usual costs rule is

that an unsuccessful party should pay the successful party's costs. Although costs are in the discretion of the court, that is the usual basis of costs orders. But in this case the Defendant doesn't rely upon that general rule, but relies rather upon a contactual provision that requires you to indemnify the Defendant against any costs in connection with the advance in relation to the mortgage, and one or two of the specific provisions have been referred to.

JUDGE HICKINBOTTOM: as I explained, although costs

are within the discretion of the court, the usual order would be that an unsuccessful party pays the successful party's costs of a claim. That is the order that I would have made but for the contractual provisions. That would have meant that I would have assessed the costs on a standard basis, the particular basis set out in the Rules, which is based upon reasonableness of those costs.

However, in this case the Defendant has a contractual right to recover any costs in connection with any advance under which - this is Condition 49 of the Mortgage Conditions - you are responsible on a full indemnity basis for costs, including legal expenses, in connection with the advance, and in particular to remedy or secure the performance or observance of any terms of the mortgage, including the term in relation to the ERC. In my judgment, the Defendants are entitled, on a contractual basis, to indemnity costs in respect of this claim. Whether they enforce those costs against you is a matter entirely for them.

Dealing with the quantum of costs, I have got the statement of costs, Mr. Innes.

MR. INNES: Yes. Could I draw your attention to one matter in

relation to quantum? You will have seen the skeleton argument. That had to be put in by the end of December, according to the order. I hate to say this to add misery to misery, but in the schedule there has been an allowance for my brief fee, but what has been omitted and only came to light yesterday when we saw this was my fee for drafting those submissions, so that would be £600 in addition. I need to mention that.

JUDGE HICKINBOTTOM: Under the contractual provisions, effectively

I should look at this schedule of costs on the basis that I am assessing it on an indemnity basis, should I?

MR. INNES: Your Honour, I don't read it that way. Indemnity

costs has a definite meaning under the CPR, which is that where there is a doubt, it reflects the burden you apply in resolving that doubt. But where this is a contract provision, what it is saying is you pay all our costs. I don't believe, within that contract, it is open for you to say that this is unreasonable. I think you just have to leave it as it is.

JUDGE HICKINBOTTOM: I think that is probably right. Of course,

you counterclaimed specifically in respect of these costs. You need not have done so.

MR. INNES: Yes, I thought it was practically wise. I think that

is right. Particularly in a mortgage case, the order is just silent about it, but in the circumstances of this case it is probably better to make it specific, so as to avoid any argument later on, but that would probably be right.

JUDGE HICKINBOTTOM: In relation to the £600, VAT will be

attracted to the £600 in any event. What is the total claimed there?

MR. INNES: £4,558.30.

JUDGE HICKINBOTTOM: Again these are formalities, but you actually

want judgment for that sum.

MR. INNES: Yes. I think the correct order would be that the

claim is then struck out.

JUDGE HICKINBOTTOM: And judgment on the counterclaim.

MR. INNES: Yes.

JUDGE HICKINBOTTOM: I can tell you what would normally happen. If you still had a mortgage with this company or any mortgage company and they had obtained a litigation success against you - let's put it like that - they would simply lump the costs onto the mortgage, and costs as an issue wouldn't be raised in this court at all because they would have the contractual right to do that. The practical reason why they have issued a counterclaim in respect of these costs is that is the only way they can recover the money from you because there is no ongoing mortgage.

but it seems to me that is a contractual right. The Defendants are entitled to that sum, and they are entitled to it by way of a judgment in that sum because it is a counterclaim. It is not a court costs order. It is a substantive counterclaim against you.

Well, the order I will make is that I will make an order striking out the claim. I will make an order for judgment on the counterclaim in the sum of £4,558.30 and, to make things absolutely clear, I will make no order for costs, which means that because costs have been dealt with in the substantive action, you will not face any further application for court costs against you.

 

 

Come on mods lets have some help here as if you walk away then these companies are watching like wolves.

 

 

I've no idea where you get the idea that we are walking away. Far from it I've been working round the clock since this decision.

[Guest willowb]

I've no idea where you get the idea that we are walking away. Far from it I've been working round the clock since this decision

I've said it before hun, you are an angel:)

 

Quote Surlybonds in 'legalities'

4) Once the contracts ends, nearly all the clauses also end. The lender does have some rights to prove monies owed and then pursue them lawfully, but my argument is essentially that other clauses all end, and the lender cannot arbitrarily choose to assume that the disclosure of Data clauses can carry on. This is a proposed change of contract that they are trying to impose and is therefore unfair and unenforcable under the UTCC Regs.

 

You see this is what I can't 'get my head around', banks started to re-word their Ts and cs (after SBs successes at removing defaults with this argument) to include 'future processing of data when the contract had expired'. I know that indemnity clauses cover the mortgage, but how many of them specifically cover the lender's costs after the cessation of the contract? If it isn't specifically worded in the contract then can we not argue that the Ts and Cs do not apply anymore?

 

In these two cases, the argument for the cessation of contract = ts and cs rendered unenforceable was not used....or was it?

 

This is where I fail, I can't substantially back it up....but I don't mind putting my thoughts out there even if they may be wrong.

 

Wxxx

[Bona]

Zoot

Have read the above , We fought our Mortgage repossession for 4-5 years in the end we sold the house the mortgage company added a huge amount on over the years in solictors costs, these they took from the sale price we have for the past two/three years argued that the costs were unreasonable, in the end an application was made for the costs to be assessed, this is being done at the moment but we belive that we will get it down by thousands , The High court judge said that everyone has a right as the paying party to have any solicitors costs assessed , to find out that they are not being ripped off at the moment we are at the satge where we have to put in our objections to items , they will come back to us then there will be a hearing, surley if a mortgage contract does not make proviso for this it could be seen as a penalty or unfair or something

 

Bona

[kennyh]

Hi Bona,

In view of some of Zooman's advice, in relation to "The High court judge said that everyone has a right as the paying party to have any solicitors costs assessed" at what cost to us would this process be? In short I don't doubt the right but would need to get a handle on the cost.

[larry12]

The fact that you request to transfer your mortgage to a new house is clearly what the banks say you can do, however there is a get out clause for them, but i believe if you are not asking to increase the loan therefor increasing there risk, i can see no good reason for them refusing the request to move the mortgage the only possible answer is they see a very good return by applying the ERC I am sure this could be argued in court? in my sons case the risk was a lot lower and they still refused even though i said i would continue as guarantor. I wonder how many times they refuse to let people move there mortgages therefor avoiding ERC?

[gordonhall]

Was this a secured loan under 25K?

 

Sorry, been out of action for a few days....

 

The loan was for £40K, secured on my house. I took it out last January (06) and have remortgaged with HSBC and paid off the loan as the interest was over 9% - ridiculous - hope that helps..

 

G.

[gordonhall]

And the ERC they made me pay was £1800+. Strangely enough, when I asked them what the fee was for, I was told it was because I was a risk. I pointed out to them that surely I was arisk when they lent me £40K - not when I was giving it them back!!!

[Guest DEATHLORD]

sorry o lord Zoot,

I was not geting at you but there has got tobe some in the unfair contact terms for this, as I could not change nor replace any of the terms and every one gets the same offer in terms therefore its one sided THEIRS.

After all if you look at what you say then what ever the ompany does worng or does not do some thing then we still pay even if we are right this is not FAIR and this is what I am saying the terms of these contracts are not fair Firstly and then the rest must therefore come in with it.

So what is a ERC then ?

what are the TURE costs are the late payment fees?

Its not about not paying back any funds but what is right.

And that is why I feel the two people have been put out on a liem and need help just to find out what these costs and charges are for! as are they for profit costs or admin or what.

can some one tel me.

[kennyh]

I believe this impinges on (but is broader than) the Terms & Conditions thread I've just started. Spooky or wot.

[larry12]

the fact they wont let you transfer the mortgage to a new property may be the way to look at it they clearly state the mortgage is portable but find some reason not to let you do so as previously stated my two sons were not looking to increase there facility's in fact the opposite

HOW MANY PEOPLE HAVE BEEN SUCCESSFULL IN MOVING THERE MORTGAGE FROM ONE PROPERTY TO ANOTHER, THEREFOR AVOIDING HAVING TO PAY ERC ?

If i can get an answer to that question it will tell us how often the banks claim ERC and if it is not to many poe[le have been let move there mortgage then,perhaps that is the place to look to challenge this charge as you could claim the banks have acted unfairly

[gizmo111]

the fact they wont let you transfer the mortgage to a new property may be the way to look at it they clearly state the mortgage is portable but find some reason not to let you do so as previously stated my two sons were not looking to increase there facility's in fact the opposite

 

When the T&C say thatthe mortgage is portable it will alos say something like - if you meet our lending criteria at the time of moving the mortgage - and subject to survey on the new property, if your personal circumstances have changed significantly you may no longer come into their risk category, eg you may now have adverse credit, drop in income, arrears etc or the property you are moving to has a higher LTV, basically the ywil ltreat a request ot move as a new application but with no or little fees, and if something has changed then they will not offer the mortgage, and charge the ERC.

I moved house with GMAC and had no problem porting a mortgage that wasn't in the T&C as being portable.

[larry12]

When the T&C say that the mortgage is portable it will also say something like - if you meet our lending criteria at the time of moving the mortgage - and subject to survey on the new property, if your personal circumstances have changed significantly you may no longer come into their risk category, eg you may now have adverse credit, drop in income, arrears etc or the property you are moving to has a higher LTV, basically the will treat a request ot move as a new application but with no or little fees, and if something has changed then they will not offer the mortgage, and charge the ERC.

I moved house with GMAC and had no problem porting a mortgage that wasn't in the T&C as being portable.

I am aware of the fact they look at the situation again however as previously stated one of my sons was a solicitor moving from London to take up a position in business (has now returned to the Law) he was selling two houses and buying one he was looking to borrow less then he was currently paying? my second son was a different story, he bought a flat when he moved to London to go to University of course the only way they would give him a mortgage was for me to be guarantor (i was) I paid the deposits and he would share with a couple of students and that would pay the mortgage, this worked fine however i am not saying he paid on time every month however when he moved back north he had made a considerable profit on the London property and the deal was this he bought a house to live in that was about the same mortgage as he was paying, and with the profit he could buy an investment property and put down a very considerable deposit approx £75K asking a mortgage of approx £60K (where the risk there?) i addition the kid has left uni and had, a job,so again where is the risk? and when they turned this whole deal down i wrote to them as i could not understand there position, there reasons where as you stated "we look at this as a new application" and as he had missed a couple of payments whilst at uni that was the main reason i pointed out the whole risk to them was a lot less now then they were carrying and to remember i was still the guarantor even at this the answer was no "The solicitor lad never missed a payment"

this is not because it is my sons but i told them at the time this was sheer profiteering and that there was no other good reason to cancel these deals other then to make a quick £12K

this is about 3 years ago before this whole thing was though about my son is very busy but has promised me if i can gather some good info on this ERC thing he will look at it with me, with a view to action

I just think this is a bigger con then even bank charges and if this forum agrees perhaps we can stop it, but if enough people tell me i am wrong I will listen to that also