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Nigel v GMAC


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Sorry to crash this thread you guys,I'm claiming unpaid dd fees and arrears charges from g.m.a.c can I use the standard bank prelim and lba letters or is there a special one for mortgage companies.sorry.

 

Regards

Nigel 1804

HALIFAX CURRENT ACCOUNT SETTLED IN FULL 9/9/06.

 

N1 form completed 05-06-07,LBA sent 14-05-07,2nd go!Prelim sent 24/04/07

 

Halifax Visa 1.Paid in full

Halifax Classic.Paid in full.

 

LBA sent 14-05-07,GMAC prelim sent 24/04/07

 

Data Protection Act for halifax mortgage 16/09/06.

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Hi Nigel

 

Please find below the letter templates, let me know how you get on i am on my letter before action now and not heard anything.

 

Cheers

Hayley

 

PRELIMINARY LETTER

 

ACCOUNT NUMBER: XXXX

 

Request for repayment of charges

 

Dear XXXX,

 

 

Our request

 

 

We are writing to ask you to refund the charges which you have levied from our account in respect of late payment fees to the sum of £XXX , the sum of £XXX representing the contractual rate of interest applied by yourselves in respect of the said charges (Please find enclosed schedule of charges detailing dates, amounts and interest) and. We now understand that such fees are unlawful at Common Law, Statute and recent consumer Regulations.

 

In the case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract as oppose to a charge which represents a penalty. This law was confirmed and upheld in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79. A charge will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable.

 

In addition your charges appear to represent an unfair term of contract which is contrary to the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). Our account falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as we are consumers. 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. We would vigorously contend that this is the position regarding the fee of XXXX which you deemed fit to apply to our account.

 

I would like to bring your attention to 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 terms 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 both at common law and (in a consumer mortgage) under the Unfair Terms in Consumer Contracts Regulations.

 

We believe that the charges you have levied of XXXXX far exceed any true cost to yourself as a result of our breaches and any genuine pre-estimate you could conceivably reach. If you disagree, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put to as a result of our breaches, in order to reassure us that your charges really do reflect your costs.

 

We really hope that this matter can be resolved amicably and without the need for redress to the courts. Thus we are asking that you refund the chargeswhich have unlawfully been levied on our account. Failure to refund all the money unlawfully taken from us will result in us taking further action. We will give you 14 days to reply accepting, unconditionally, our request in principle and letting us know a date by which we will receive payment. If you do not respond, or you do not respond positively, within this time period, we shall send you a letter before action giving you a further 14 days in which to reflect. We believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.

 

After that, there will be no further communication from us and we shall issue a claim at the expiry of the second deadline. Thus take this letter as 28 days written notice of our intention to issue a court claim should you not comply with our request. I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you will prefer to do this than merely respond with standard letters and leaflets.

 

Yours faithfully,

 

XXXX

 

LETTER BEFORE ACTION

 

Their address

Your address

 

date

 

Re Account no: xxxxx

 

Leter Before Action

 

Dear xxxxxx.

 

I am very disappointed that you have failed to respond positively to my previous correspondence requesting a breakdown of the charges you imposed on my mortgage account or a return of such charges. Your inability to demonstrate that the charges were a genuine pre-estimate of your costs suggests that the charges are indeed unlawful penalties rather than reflecting liquidated losses.

 

I will give you a further 14 days to demonstrate the charges are lawful or to reimburse the charges amounting to XXX and XXX interest applied thereon. If you fail to comply with this request I shall commence proceedings in the county court to recover the charges applied to my mortgage. I shall also be including a claim for interest at the statutory rate of 8%.

 

Yours Faithfully

 

 

xxxxxx

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Hi Hayley,many thanks for your reply I have done the H.B.O.S. 3 times but I just wondered if was any different from the usual bank format.I can't seem to find the contractual rate of interest applied to the account on my statement though.The other thing is i've got missed direct debit fees and then a £50 missed payment so should I physically list them as sutch.Many thanks Regards Nigel 1804.

HALIFAX CURRENT ACCOUNT SETTLED IN FULL 9/9/06.

 

N1 form completed 05-06-07,LBA sent 14-05-07,2nd go!Prelim sent 24/04/07

 

Halifax Visa 1.Paid in full

Halifax Classic.Paid in full.

 

LBA sent 14-05-07,GMAC prelim sent 24/04/07

 

Data Protection Act for halifax mortgage 16/09/06.

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Hi Hayley,many thanks for your reply I have done the H.B.O.S. 3 times but I just wondered if was any different from the usual bank format.I can't seem to find the contractual rate of interest applied to the account on my statement though.The other thing is i've got missed direct debit fees and then a £50 missed payment so should I physically list them as sutch.Many thanks Regards Nigel 1804.

 

Hi Nigel

As Zoot said as far as the contractual rate of interest you will need to ask GMAC about this, with the charges i listed each one individually giving the date it was applied and what it was for.

Hope this helps. Good luck!!!

Hayley

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Or well prelim being sent 24/04/07 to GMAC oh and a little matter of a fourth time for the halifax for me.

HALIFAX CURRENT ACCOUNT SETTLED IN FULL 9/9/06.

 

N1 form completed 05-06-07,LBA sent 14-05-07,2nd go!Prelim sent 24/04/07

 

Halifax Visa 1.Paid in full

Halifax Classic.Paid in full.

 

LBA sent 14-05-07,GMAC prelim sent 24/04/07

 

Data Protection Act for halifax mortgage 16/09/06.

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Thanks for your help everyone

HALIFAX CURRENT ACCOUNT SETTLED IN FULL 9/9/06.

 

N1 form completed 05-06-07,LBA sent 14-05-07,2nd go!Prelim sent 24/04/07

 

Halifax Visa 1.Paid in full

Halifax Classic.Paid in full.

 

LBA sent 14-05-07,GMAC prelim sent 24/04/07

 

Data Protection Act for halifax mortgage 16/09/06.

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Anyone any ideas why my signature doesn't show.boxes ticked and all that cheers

HALIFAX CURRENT ACCOUNT SETTLED IN FULL 9/9/06.

 

N1 form completed 05-06-07,LBA sent 14-05-07,2nd go!Prelim sent 24/04/07

 

Halifax Visa 1.Paid in full

Halifax Classic.Paid in full.

 

LBA sent 14-05-07,GMAC prelim sent 24/04/07

 

Data Protection Act for halifax mortgage 16/09/06.

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Nigel

Im up against GMAC so keep in touch trying to getb the charges dealtwith under the possession hearing rather than a new claim as it will be quicker but looking into erc as well

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Had a lovely letter from gmac,basically saying the charges are in line with their Tariff and Charges,They are saying that the charges are part of their mortgage contract.They have been properly debited to my account (as they would) and it is not appropriate to refund them to me.They have now asked that all further correspondance should be dealt with their legal team.

 

N.B.Legal Team address

 

GMAC-RFC Limited

Eastern Gate,

Brants Bridge,

Bracknell,

Berkshire,

RG12 9BZ

 

So is this just another fob off letter,The way I see it is that it might well of been in there contract,but,in the eye's of a common law court would they still be illegal.....?and just checking with you guys for further advice in this matter,shall I just proceed with my LBA? cheers Nigel 1804:cool:

HALIFAX CURRENT ACCOUNT SETTLED IN FULL 9/9/06.

 

N1 form completed 05-06-07,LBA sent 14-05-07,2nd go!Prelim sent 24/04/07

 

Halifax Visa 1.Paid in full

Halifax Classic.Paid in full.

 

LBA sent 14-05-07,GMAC prelim sent 24/04/07

 

Data Protection Act for halifax mortgage 16/09/06.

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HI Nigel

 

Yes this is a fob off letter. I have a friend who claimed successfully from GMAC. They will continue with their fob off letters, however please be aware they they are very willing to go the whole hog. She had to concede the ERC charge and only claimed back late fees, however once their Sols go onto the case (Eversheds) it was over within weeks.

 

Send you LBA to the adddress supplied and let them deal with it. They will almost vertainly pass it over to Eversheds to deal with, and from there you can quite easily negotiate a payment as she said they were quite helpful. Her contact there was Gareth Vowels, but obviously you wont need that till it has been passed to them. In time i will get his email address and number for ease

All advice is based on my experiences. I am NOT qualified and as such cannot be held responsible for any mistakes. If in doubt...get professional help.

If you like what i have said then make me a star!!

Some helpful links

I have been successful in many cases..here are links to some

Housing Act and deposits: http://www.consumeractiongroup.co.uk/forum/showthread.php?266260-Deposit-being-withheld.-Please-advise&highlight=

Against Natwest: http://www.consumeractiongroup.co.uk/forum/showthread.php?278646-N-west-v-Mrsfoot-s-Son.-***WON_ALL-CHARGES-REFUNDED***&highlight=

Against Swift Advances: http://www.consumeractiongroup.co.uk/forum/showthread.php?46576-Me-V-Swift&highlight=

Against B&Q: http://www.consumeractiongroup.co.uk/forum/showthread.php?172878-Me-vs-B-amp-Q&highlight=

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:rolleyes: Thanks mrsfoot.I thought it was.I have done the halifax 3 times now currently in fourth go with them,just checking with others that other organisations are doing a similar thing.thanks once again.LBA going out today 1st May.cheers now.;)

HALIFAX CURRENT ACCOUNT SETTLED IN FULL 9/9/06.

 

N1 form completed 05-06-07,LBA sent 14-05-07,2nd go!Prelim sent 24/04/07

 

Halifax Visa 1.Paid in full

Halifax Classic.Paid in full.

 

LBA sent 14-05-07,GMAC prelim sent 24/04/07

 

Data Protection Act for halifax mortgage 16/09/06.

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Nigel

I took advice yeaterday and am going for GMAC big time on Tuesday I 'm sending them a letter asking for my charges and my ERC back in 21 days if they dont do it I am going to the High Court for an application for the Judge to make them pay it back hopefull hearing will be July

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Go Bona!Best of luck with that.Do you think I should just send my LBA in now they have replied as of earlier,but no offer or anything?

 

Regards

Nigel

HALIFAX CURRENT ACCOUNT SETTLED IN FULL 9/9/06.

 

N1 form completed 05-06-07,LBA sent 14-05-07,2nd go!Prelim sent 24/04/07

 

Halifax Visa 1.Paid in full

Halifax Classic.Paid in full.

 

LBA sent 14-05-07,GMAC prelim sent 24/04/07

 

Data Protection Act for halifax mortgage 16/09/06.

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I sent my LBA to GMAC and had the same reply as above. I am now waiting for the 14 days to be up (this week) and I will be filing N1 with court. I don't have ERC to claim for just arrears charges and no direct debit charges, totals £2k though. Anything I should know about when putting details in particulars for claim?

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Lisa

 

First of all you are better off starting your own thread in this section rather than jumping in on others, this will mean you can ask questions which may be overlooked if on someone elses thread.

 

Make your particulars of claim clear and precise.

Make sure you make reference to the correct law and cases you are relying on.

Make sure you attach a detailed and correct spreadsheet of charges with the N1.

Print out your N1 so you, the court and gmac have a copy of it. You cannot save the PDF file with the notes you have written to your computer.

Have a look at this thread which has more specific details in http://www.consumeractiongroup.co.uk/forum/mortgage-companies/71276-mortgage-charge-templates-prelim.html

 

Hope this helps

All advice is based on my experiences. I am NOT qualified and as such cannot be held responsible for any mistakes. If in doubt...get professional help.

If you like what i have said then make me a star!!

Some helpful links

I have been successful in many cases..here are links to some

Housing Act and deposits: http://www.consumeractiongroup.co.uk/forum/showthread.php?266260-Deposit-being-withheld.-Please-advise&highlight=

Against Natwest: http://www.consumeractiongroup.co.uk/forum/showthread.php?278646-N-west-v-Mrsfoot-s-Son.-***WON_ALL-CHARGES-REFUNDED***&highlight=

Against Swift Advances: http://www.consumeractiongroup.co.uk/forum/showthread.php?46576-Me-V-Swift&highlight=

Against B&Q: http://www.consumeractiongroup.co.uk/forum/showthread.php?172878-Me-vs-B-amp-Q&highlight=

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  • 4 weeks later...

S0, after sending LBA to GMAC a letter of reply has arrived dated 29th May.They must be starting to put a little thought into why they do these charges.First it explains that they charges were added to my mortgage balance in accordance with the terms and conditions which I accopted when I took out the mortgage.

 

The £50 arrears were applied to cover their costs when the account was in arrears when one months payment was outstanding.

 

They are unable to give me a breakdown of these charges,however the fee will include for example,the issue of arrears letters requesting repayment and monthly statement to a customer in arrears.In addition,calls may be made to a defaulting customer to establish the reason for the arrears and to agree a repayment arrangement.Further more the account will be continually monitored during the period that it remains in arrears.

 

They spell out that accounts in arrears need to be monitored closely as these people are a higher risk to lenders and they need specialist management to assist customers to bring their accounts up to date.

 

Again they put the enphersis on the unpaid direct debit down to a letter being sent and possible phone calls to be made.

 

they then say that the charges are not out of step with those applied in the industry wide.(good because they are also illegal)

 

THEN THEY FEEL THAT THIS LETTER HAS JUSTIFIED.

 

to finish

HALIFAX CURRENT ACCOUNT SETTLED IN FULL 9/9/06.

 

N1 form completed 05-06-07,LBA sent 14-05-07,2nd go!Prelim sent 24/04/07

 

Halifax Visa 1.Paid in full

Halifax Classic.Paid in full.

 

LBA sent 14-05-07,GMAC prelim sent 24/04/07

 

Data Protection Act for halifax mortgage 16/09/06.

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S0, after sending LBA to GMAC a letter of reply has arrived dated 29th May.They must be starting to put a little thought into why they do these charges.First it explains that they charges were added to my mortgage balance in accordance with the terms and conditions which I accepted when I took out the mortgage.

 

The £50 arrears were applied to cover their costs when the account was in arrears when one months payment was outstanding.

 

They are unable to give me a breakdown of these charges,however the fee will include for example,the issue of arrears letters requesting repayment and monthly statement to a customer in arrears.In addition,calls may be made to a defaulting customer to establish the reason for the arrears and to agree a repayment arrangement.Further more the account will be continually monitored during the period that it remains in arrears.

 

They spell out that accounts in arrears need to be monitored closely as these people are a higher risk to lenders and they need specialist management to assist customers to bring their accounts up to date.

 

Again they put the Ephesus on the unpaid direct debit down to a letter being sent and possible phone calls to be made.

 

they then say that the charges are not out of step with those applied in the industry wide.(good because they are also illegal)

 

THEN THEY FEEL THAT THIS LETTER HAS JUSTIFIED.

 

To finish with they provide an expensive leaflet about the financial Ombudsmen service and confirming that this is their Final Response under the terms of the Internal Complaints Procedure.

 

SO! I take it that other people have had this letter and I just continue with my N1 form.To me they have dropped themselves in the MIA as the letter states that they can not give a breakdown as to why the charges are what they are.Anybody had the same out there responses much abbliged.:cool:

HALIFAX CURRENT ACCOUNT SETTLED IN FULL 9/9/06.

 

N1 form completed 05-06-07,LBA sent 14-05-07,2nd go!Prelim sent 24/04/07

 

Halifax Visa 1.Paid in full

Halifax Classic.Paid in full.

 

LBA sent 14-05-07,GMAC prelim sent 24/04/07

 

Data Protection Act for halifax mortgage 16/09/06.

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I thought it was,thanks zootscoot,just like to double ckeck along the way,N1 preped ready to go.regards Nigel

HALIFAX CURRENT ACCOUNT SETTLED IN FULL 9/9/06.

 

N1 form completed 05-06-07,LBA sent 14-05-07,2nd go!Prelim sent 24/04/07

 

Halifax Visa 1.Paid in full

Halifax Classic.Paid in full.

 

LBA sent 14-05-07,GMAC prelim sent 24/04/07

 

Data Protection Act for halifax mortgage 16/09/06.

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Well Just back from a few days away and no reply from GMAC to my asking for my money back should have been by wednesday so off next week to issue a part 8 application in the high court to have GMAC give an account for all mony they took from the proceeds of the sale of the house, in laymans terms they have to account for all their charges erc and all the money the debited whern they said it was a overpayment??????? Also have a cost hearing in the High Court supreme Costs Office for the 6th August so here we go

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PARTICULARS OF CLAIM

 

  • The Claimant has an account xxxxxxxxx with the Defendant which was opened around 1990.

  • Since xx/xx/xxxx in which the account has been operating the Defendant debited numerous charges to the Account 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.

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

4. The Claimant contends that:

 

a) The charges debited to the Account 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.

 

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations (1999), the Unfair Contract Terms Act 1977 and in common law.

 

5. Accordingly the Claimant claims:

 

a) The return of monies taken by Defendant by way of penalties £xxxxxxplus

interest £xx.xx in pursuant to S.69 County Courts Act (1984).Plus the interest pursuant to S.69 County Courts Act (1984) from date of issue to date of judgement/settlement at £00.34 per day OR at such rate and for such periods as the court deems just.

 

In the event that it is found the charges are not penalties (which is not admitted),but rather the price of the contractual services, the Claimants position is that such services are subject to section 15 of the supply of goods and services act 1982 and that the Defendant is only entitled to charge a reasonable price.

 

I believe that the contents of these particulars of claim are true.

 

 

Signed:

 

 

Date

Ok N1 form filled in for Halifax now can I use the same particulars of claim for G.M.A.C. mortgage account?any ideas anyone regards Nigel (as above)

HALIFAX CURRENT ACCOUNT SETTLED IN FULL 9/9/06.

 

N1 form completed 05-06-07,LBA sent 14-05-07,2nd go!Prelim sent 24/04/07

 

Halifax Visa 1.Paid in full

Halifax Classic.Paid in full.

 

LBA sent 14-05-07,GMAC prelim sent 24/04/07

 

Data Protection Act for halifax mortgage 16/09/06.

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All advice is based on my experiences. I am NOT qualified and as such cannot be held responsible for any mistakes. If in doubt...get professional help.

If you like what i have said then make me a star!!

Some helpful links

I have been successful in many cases..here are links to some

Housing Act and deposits: http://www.consumeractiongroup.co.uk/forum/showthread.php?266260-Deposit-being-withheld.-Please-advise&highlight=

Against Natwest: http://www.consumeractiongroup.co.uk/forum/showthread.php?278646-N-west-v-Mrsfoot-s-Son.-***WON_ALL-CHARGES-REFUNDED***&highlight=

Against Swift Advances: http://www.consumeractiongroup.co.uk/forum/showthread.php?46576-Me-V-Swift&highlight=

Against B&Q: http://www.consumeractiongroup.co.uk/forum/showthread.php?172878-Me-vs-B-amp-Q&highlight=

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:cool: Hi mrsfoot,thanks for those links.I notice in the POC that it mentions "repeatedly ask the defendant to justify their charges but they have dailed to do so".Well they sent me a letter that does explain their charges and as to why they are so.Now I know that this is just a letter from them as a fob off but this sentence doesn't fit in really.I just want to cover my back at all times.I've had 3 successful claims for thousands.so should I still that POH link.?regards Nigel:-|

HALIFAX CURRENT ACCOUNT SETTLED IN FULL 9/9/06.

 

N1 form completed 05-06-07,LBA sent 14-05-07,2nd go!Prelim sent 24/04/07

 

Halifax Visa 1.Paid in full

Halifax Classic.Paid in full.

 

LBA sent 14-05-07,GMAC prelim sent 24/04/07

 

Data Protection Act for halifax mortgage 16/09/06.

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