Friday, January 30, 2009

Break Fees and Lawyers

Of course the one set of parties that has remained (incriminatingly) silent on most of this debate is the law society and the lawyers;

They could at least have helped clear up the confusion around the legal obligations of the banks preventing them doing what most are currently accusing them of;

However perhaps it is because ultimately it was their responsibility to their client to properly explain those clauses in the contract they were collecting their fees for?

The Break Fee Debate

ITs good to see the banks are hanging tough on break fees - although I'm disappointed in Bill English's proposed pressure on KiwiBank to potentially lower these.

Lets be clear here as there has been a huge amount of morons commenting on this subject when they have no actual concept:

The banks are not making money out of this - there is no margin in the break fee, it is genuine costs relating to the fact that people are wanting to intentionally breach contracts.
In fact the CCCFA (Credit Contracts and Consumer Finance Act 2003) both means it is illegal for them to make money on the break fee - and (to put another misinformation to bed) sets out how they should calculate the fee.  

There is ambiguity in the law as to which rate the lender should use as their relending rate - If your original contract was for 5 years fixed rate, you are now 2 years in the lender may be relending at the variable, the 5 year or the 3 year rate? However while this is unclear in the law which must be used, it is stipulated in the contract.

Which in the end is much of the point here - how are people legitimately thinking they should be able to walk out of a legally binding contract without paying the other parties costs?  These pillocks are effectively arguing that when the rates were rising the banks should have been able to give the homeowner (EG) $4000 and then say "sorry, but you're back on the variable (3% higher) variable rate now".  Because the fix works both ways.

In the end the risk is 2 ways - if the rates had spiked rather than dropped would you still be complaining about being on a fixed rate?  Furtermore is it the bank that has dropped the OCR? (or raised it initially)?
The only way around it is to either align the term of the fixed rate to the term of the mortgage or go completely variable rate - but I don't see these plonkers actually going for either of these options.  Unfortunatly the nanny state seems to haev won in its efforts to create a nation of whiners that not only thinks they can have their cake and eat it too - but actually have someone else bake it for free in the first place.