sapphire v GMAC

Prelim sent today £390.00.

sapphire

[iancognito]

Good on ya, think I had my last mortgage with this lot, no missed payments tho just a massive ERC :-(

[Sapphire]

I have a big ERC on there, and have already approached them about it. I got a really sh.tty letter back, so thought I'd try again after a few months and without the ERC.
Still have the letter if anyone wan't to see it.

sapphire

[Tools]

Yes Sapphire would be interested to see that , I started an ERC claim with them and swiftly backed off around the whole MF5 fiasco , seems no one has dared make a move since then . In my opinion ERC` s are a penalty charge , but as of yet I have put this on the back burner while I deal with Yorkshire Bank and a few credit cards .

[Sapphire]

Okie dokie tools (this pooter illiterate) will attempt to scan the letter and post it on here, don't hold your breath though

sapphire

[Paradox]

Posted for sapphire (women & technology eh )

[iancognito]

(women & technology eh )

Whatever would we do without you guys??

OK at least it clearly says you breached their T&C's be not making payments on time - thats good of them

I particularly like the bit about the OFT's report being an

opinion

, hmmm bet that would make the guys int he OFT office smile too.

Still no change on the ERC as far as I can see tho' - anyone?

[Sapphire]

This is the prelim letter that I have sent:

Request for repayment of charges

Dear Madam,

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 £390.00. (Please find enclosed schedule of charges detailing dates, amounts and interest) 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.

Furthermore a fee levied requiring us to indemnify you against any commercial risk to yourself in offering us a reduced interest rate in order to attract our custom is also contrary to s.4 Unfair Contract Terms Act 1977. We are confident that a court is likely to consider this clause to be unreasonable within s.11 of the said Act as a large commercial institution such as yourselves is in a far better placed position than us as consumers to bear the burden of the vicissitudes of business.

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. A redemption charge may be regarded as a penalty even if it is expressed as the price for exercising a right rather than a consequence of breaking the agreement."

We believe that the charges you have levied of £390.00far exceed any true cost to yourself as a result of our breach 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.

Your responsibilities

We would draw your attention to the terms of the contract which you agreed to at the time that we took out the loan. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

We are frankly shocked that you have operated our account in this way as we had always reposed confidence in your integrity and expertise. We consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived us into agreeing to pay them. Your concealment of the true nature of your charges has prevented us from asserting our rights until now.

Our targets to resolve this matter

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 charges which 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 my 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,



sapphires hubby

[Sapphire]

Letter received today,

Thank you for your recent letter, and for bringing your comments to our attention.
I am concerned about the issues you have raised and propose to investigate them in line with our Internal Complaints Procedure, a copy of which is enclosed. I anticipate that I will complete my investigations of the events and circumstances within four weeks, whereupon I shall write again.

Anthony Holdsworth
Complaints Manager, Customer Response.

[Sapphire]

Well here's the reply I received this morning:

Further to my lettre dated 10 July 2007 I thank you for allowing me the opportunity to investigate the concerns you have raised.
I have duly noted the contents of your letter, and am aware that you require the charges levied on your account refunding.
Any fees applied since your mortgage completed in Sept 2002, have been added to the mortgage balance and are in accordance with the mortgage t & c's, which you accepted when taking a mortgage out with GMAC-RFC. I have provided an explanation below of the relevant fees.
ARREARS FEE
The £50.00 arrears fee is charged on a monthly bases to cover the costs incurred by us when a mortgage payment is outstanding.
When a montly payment is missed, additional administration is required to manage and monitor an account in arrears.
Unfortunately we ae unable to provide an exact breakdown of the fee, however it will incude for example, the issue of arrears letters requesting repayment and a monthly statement to a customer in arrears. In addition, calls may be made to a defaulting borrower to establish the reason for the arrears and to agree a repayment arrangement. Furthermore the account will be continually monitored during the period that it remains in arrears.
By their very nature, accounts that are in arrears where the contractual monthly repayment is not being received represent a higher risk to lenders. Therefore such accounts need to be monitored closely to identify improved or worsening arrears situations. Accounts in arrears required specialist managements to assist customers to bring their payments up to date.
UNPAID DIRECT DEBIT FEE/UNPAID CHEQUE FEE
The £30.00 unpaid direct debit and unpaid cheque fee is charged when a direct debit or cheque is returned unpaid by our bankers, for example, due to insufficient funds in your account or because you have cancelled the instruction to pay by direct debit. When this happens, letters are sent to confirm that your bank has returned the payment unpaid and phone calls may also be made to follow this matter up.
The charges, which have been applied to your account, are a pre-estimate of the loss we incur for the extra administration undertaken and are not out of step with those applied industry wide.
GMAC-RFC has acted within the terms of the contract, which we have made transparent from the outset.
Upon review of my investigation, I confirm that no charges will be refunded and whilst I appreciatethis may not be the response you had hoped for, the fees applied have been justified.
I am providing you with the enclosed booklet indicated how the Financial Ombudsman Service may be approached with your issue. In so doing I am confirming that this letter is our 'Final Response' under the terms of the Internal Complaints Procedure and should accompany any representations to the Ombudsman, together with all the relevant previous correspondence.
If you decide to contact the Ombudsman this should be as soon as possible and no later than six months from the date of this letter.
Yours

Anthony Holdsworth, Complaints Manager

[iancognito]

Hmmm they've been taking advice from the British Bankers templates writing service I see.....

Would appear to me the same drivel we've been seeing from the banks and so same solution - take it this was the result of a prelim letter - onwards and upwards, you know the routine!! LBA next

[Mochamoos]

, seems no one has dared make a move since then .

A few of us have.


Standard letter again...wish they would find something new to say!

[Turboman]

Re: sapphire v GMAC

Hi Saphire

How is your claim going on this one?

I'm still dithering on Mortgage penalties as I haven't seen many successes?

Turbo

[pam1]

Re: sapphire v GMAC

Hi Saphire
I also backed off when things got to risky, i have a small amount i could cliam but thinking when the time is right, like it was for the bank charges i will go for it all.

So im sitting on mine, but very interested to see how you get on.:carrot:

[Sapphire]

Re: sapphire v GMAC

Hi guys, to be honest I'm holding on to everything for a while until things become a bit clearer. I may have a play with Cap One though just for a bit of sporting fun.

sapphire