thesergeant v Woolwich

[thesergeant]

Well here I go with woolsnitch .....

 

Found one of my 96 & 97 mortgage account statements! With lots of late payment charges on them.

 

Well, well I thought - its time they paid that back ...... S.A.R. sent. :D

[Rooster-UK]

Good luck, Sarge.

 

Regards, Rooster.

[thesergeant]

Thanks Rooster, will keep you all posted on progress

[thesergeant]

OK started again on this one. Have had a bit of a break from all this. Woolsnitch took £1685.00 in charges from my two mortgage accounts.

 

I sent them an LBA many months ago. They originally stated they would not repay anything. So was at the claim stage.

 

So having revisited this I sent them another one. Got a very quick reply (2 days) interestingly from the same person who previously replied. They have straight away offered £420.00 to settle !!

 

They have stated that in line with FSA guidelines and previous court hearings that they only have to review charges over the last SIX years? That seems wrong as mortgage accounts are TWELVE years I thought?

 

Any views before I kick off to the next stage ...........

[tonycee]

The answer is here

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/52020-mortgages-faq.html

 

Under How long can I claim back for on mortgages?

[thesergeant]

Tonycee thanks for that - much as I thought other than the capitalised bit.

 

However how do I check that the charges were capitalised? I have all my account print outs. The charges appear and accrue on the Mortgage account total balance, they are not itemised separately. Does this show them to be captialised?

 

I take it that charges being capitalised means that they become part of the mortgage loan and are repayable over the remaining mortgage period.

 

In which case as they appear on the statements adding to the running mortgage balance that should mean they have been capitalised - shouldn't it???

[thesergeant]

Well I'm going to issue against the Woolwich, any views/suggestions for my N1?

 

Also, again, how do I tell if the charges have been capitalised?

 

1.The Claimant has an accounts XXXXX and XXXXXX, with the Defendant which were opened on or around January 1999 and July 1998.

 

2. During the period in which the Accounts have been operating the Defendant debited numerous charges to the Accounts in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

3. A list of the charges applied is attached to these particulars of claim.

 

4. The Claimant contends that:

 

a) The charges debited to the Accounts, as outlined in the attached schedule, are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit. In the event that the charges are not a penalty, they are unreasonable under The Supply of Goods and Services Act 1982 section 15. The Defendant has declined to justify the charges.

 

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of The Unfair Terms in Consumer Contracts Regulations (1999) paragraph 8 and schedule 2(1)(e), The Unfair Contracts Terms Act 1977 section 4 and the common law.

 

5. Accordingly the Claimant claims:

 

a) the return of the amounts debited in respect of charges in the sum of £1,687.50.

 

b) Court costs;

 

c) the additional costs incurred by the Claimant in the writing and sending of letters to the Defendant pursuant to this claim, and the statutory access request in the sum of £12.52, as set out in the attached list of costs.

 

d) the Claimant claims interest under Section 69 of the County Court Act 1984 at the rate of 8% per annum calculated from the date of each transaction to 19th March 2008, which is £1062.28 and continuing until payment or the date of judgement at a daily rate of £0.61.

 

6. The defendant has many similar claims litigating or in the process of doing so, on the same issue of contractual penalties. However not a single case has gone to a hearing. The Claimant attaches a list of 39 cases complete with County Court references, of which the defendant is aware since February 2006, all being settled before hearing. The Claimant believes the actual number of cases to be far higher however the attached list contains those cases where sufficient information is known in the public domain. The Claimant believes that the defendant in the instant case has no intention of going to a hearing. The Claimant further believes that the pattern of cases settled so far suggests very strongly that the defendant is merely using the justice system as a publicly funded means of intimidating their customers who pursue legitimate claims to dissuade them from pursuing their legitimate Right. The Claimant submits that this is an abuse of the justice system and of the public resource.

[thesergeant]

Bump

[thesergeant]

I finally got around to it !

 

I have started my claim, which is deemed served as of today. The Court were really quick as I only dropped it down on Thursday.

 

So lets see how efficient the Woolwich are? The 14 days are ticking ...........

 

Total of my claim £2995

[thesergeant]

Barclays has acknowledged the claim. 28 days from service to get the defence in. Tick tick tick.

[thesergeant]

I have received their defence statement. Got the AQ from the Court.

 

Anyone got experience of getting to this stage? I can only find AQs etc for bank accounts.

 

HELP:-D

[thesergeant]

Feeling a bit lonely here - has no one got to this stage before?

 

no one got any advice ??????????

Edited May 15, 2009 by thesergeant

[thesergeant]

My AQ has been served on the Court and to Woolsnitch.

 

Could still do with some observations to assist

[Penfold92]

Woolwich settled my claim a few days before Court hearing, so I would not expect to hear anything from them before that stage. Good luck,

 

Penfold

[thesergeant]

All,

 

 

I have begun a claim against Woolsnitch. AQs have been served, however Woolsnitch have thrown in a draft order for strike out on the basis of S5 Limitation - which they say is 6 years.

 

In my POC I have stated

 

Limitation

9. The Claimant contends that the various penalty charges applied to the account were capitalised and that as such the relevant period for this claim is twelve years.

 

 

10. Alternatively if it is decided that the charges were not capitalised then the Claimant seeks permission to proceed with the claim under s.32 (1)(b) Limitation Act 1980 on the ground that the Claimant could not reasonably have discovered the Defendant's deliberate concealment of the facts relevant to the Claimant's right of action before the report of the OFT was published on 5th April 2006.

 

The facts relevant to the Claimant's right of action are that the Defendant is unjustly enriched by exercising the contractual terms in respect of default charges with a view to profit. If the Defendant has elected to present its charges as if they were a legitimate loss or cost, whilst it is in actual fact profiting in a material sense from the charges, the Defendant can be seen to have been operating without accountability to its customers; and to have consciously concealed the facts. The Defendant is clearly in a privileged position to have a direct means of withdrawing monies from the Claimant's bank account. The Claimant is entitled to know whether the charges paid represent a justifiable business cost, or whether they are in fact a penalty, and to expect that the Defendant will always conduct itself with integrity.

 

11. Alternatively, the Claimant seeks permission to proceed with the claim under s.32 (1)© Limitation Act 1980, on the ground that the payments were conceded on the mistaken presumption that the said charges and interest thereon did not amount to penalties - Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 - and that the Claimant would not reasonably have discovered the said mistakes before the report of the OFT was published on 5th April 2006.

 

 

Would the Judge have considered this before putting the judgment out?

 

I have seven days to respond.

 

I URGENTLY need some considered thoughts to assist me.

[ukaviator]

Unlike bank charges, it is possible to claim back mortgage penalties going as far back as 12 years. Unfair charges or penalties, as per the Unfair Conditions in Consumer Contracts Regulations 1999, applied by a company to its customer are unlawful where those charges were not individually negotiated between the two parties. This includes banks, credit cards mortgage accounts.

 

Are these just late payment fees?

[thesergeant]

UKAviator,

 

Thanks for looking I was feeling a bit lonely on this one!

 

OK - my schedule of claim details items described as: Arrears Charge, Misc Debit, DR C & A and Arrears admin charge, these are variably charges shown as debited on my mortgage account and are included in the ongoing Mortgage balance, which I take to mean that they are capitalised into the mortgage.

 

I have looked at the Limitation Act. I am a bit confused as to how to refer to the 12years claim period.

 

Also they have requested strike out on the basis of 6yr limitation, however not all of my claim exceeds their 6 year limitation.

 

I would appreciate any thoughts / advice.

[thesergeant]

OK - the limitation act 1980

 

Time limit for actions to recover money secured by a mortgage or charge or to recover proceeds of the sale of land.

 

20. —

(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.

 

>>>>>>> Nothing here seems to restrict this only to the Mortgage company chasing the Mortgagee. Therefore I read this as being that it is literally ANY "principal sum" secured by a mortgage - therefore as my mortgage statements show that the penalty charges accrue onto the balance of the mortgage - ie capitalised into the mortgage that these are therefore part of the principal sum and therefore the 12 years applies ..

 

Am I right ?????

 

I would there after argue that if this does not apply then S32 would be argued to apply referring to the relevant case law.

 

THOUGHTS please

[Penfold92]

It will not get to Court...(IMHO) they are trying to find ways to make you accept a lower figure... Ask yourself will they win even if only 6 years? and stick to your guns...

 

Good luck,

 

Penfold

[mungos mum]

Hi There

Does anyone know if you can claim back unfair charges on buy-to-let mortgages?

I know that because they are un-regulated they don't always follow the same rules but we had massive charges from mortgage express (which nearly broke us) and now that we've started to pull ourselves out of the mire we're trying to work out if we can get any of the money back.

 

Thanks

MM

[thesergeant]

Trouble is they have asked for an order to strike out, despite the fact that even if 6yrs apply it does not cover all of my claim.

 

I take it on my N244 I need to firstly state that the 6yr limitation if it applies, which I dispute, does not cover all of the claim. Then go on to set out my arguments for 12yrs applying then if not that S32 of limitation act etc.

[thesergeant]

Big question is - Do I ask for it to be dealt with by a hearing or without a hearing?

[thesergeant]

ALSO

 

I have just noticed that on the N24 it states that:-

 

The claimants claim be struck out because they are time banned under S.5 Litigation Act 1980

 

An obvious error as it should read Limitation Act - does this in itself nullify the attempted strike ???

[MARTIN3030]

Well it demonstrates just how prepared the other side are-so yes theres no such statute.

If the other side are in agreement then it can be dealt with WITHOUT a hearing-if not then its dealt with by a hearing.

If you are intending to rely on section 32 then it should be in your POCS

[ukaviator]

The Unfair Terms in Consumer Contracts Regulations 1994 also apply to loan agreements entered into on or after 1 July 1995, when the Regulations came into force. A term to which the Regulations apply shall not be binding on the consumer if it is unfair, and a term may be unfair if contrary to the requirement of good faith it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.

 

If lenders wish to recoup the administrative costs incurred on default, they should do so by means of direct charges to the borrower. Any such charges should be reasonable, and should do no more than cover the lender’s administrative costs incurred on default. I don't think the judge will strike out the case.