No problem.Andy, did you see my queries in post 22 above?Thanks,James

2 x home visits @ £80 each...Definite

2 x Legal charges relating to suspended reposession @ ~£500 each Risky but nothing to lose

SCT threshold is 10K

Andy

Yes, my claim is already at the threshold, so would it be possible to start a separate claim for these afterwards - it would would prob be a much smaller claim for about £1-3k?

Also, is there any way I could use the current claim to leverage Barclays into discharging the suspended repossession order? The arrears have ben cleared for about 3 months now, but they would have been cleared much sooner without all these additional charges.

You apply to the court on an N244 form cost is £155...to discharge the suspended repossession order. However it is unlikely your lender will agree to lifting the suspended order unless you have shown a continuous payment record of 6 - 9 months

Section 8 edited as follows:

8. The level of the charges is also unfair because they are the result of unfair treatment by the defendant and therefore levied in breach of the defendant's statutory duty to treat their customers fairly contained in MCOB (Sections 12.5.1-12.5.3, as detailed in schedule 3 below).

and Schedule 3 added to detail the MCOB rules:

12.5.1 A firm must ensure that any regulated mortgage contract, home reversion plan or regulated sale and rent back agreement that it enters into does not impose, and cannot be used to impose, excessive charges upon a customer.

 

12.5.2 A firm must ensure that its charges to a customer in connection with the firm entering into, making a further advance or further release on, administering, arranging or advising on a regulated mortgage contract, home reversion plan or regulated sale and rent back agreement, or arranging or advising on a variation to the terms of a regulated mortgage contract, home reversion plan or regulated sale and rent back agreement are not excessive.

 

12.5.3 When determining whether a charge is excessive, a firm should consider:

(1)*the amount of its charges for the services or products in question compared with charges for similar products or services on the market;

(2)*the degree to which the charges are an abuse of the trust that the customer has placed in the firm; and

(3)*the nature and extent of the disclosure of the charges to the customer.

Dont go too overboard orge...less is more when it comes to the particulars....just quote the pursuant,s for now you can expand later in your witness statement should they try to defend.

ok. This is all I will put in the POC then:

8. The level of the charges is also unfair because they are the result of unfair treatment by the defendant and therefore levied in breach of the defendant's statutory duty to treat their customers fairly contained in MCOB (Section 12.5).

On the same basis, I have also removed the Banks T&C's which were in a schedule after the main body.

Thanks,

J

N1 form filed with CCMCC today.

J

Will be watching with interest as also my N1 will arrive on Tuesday with CCMCC for same

arrears charges raised by Woolwich -Barclays 2004-2012

Another letter from Barclays claiming that there is nothing to refund since the charges have been added to the capital balance. Yawn...

I guess they will receive my claim in the next week or so.

J

CCMCC have been quite slow processing my N1, but the cheque has now been drawn on my account.

Should receive the confirmation of service soon.

J

Court has confirmed that claim was served on 17/4.

I've also received a letter from Mathew, Arnold & Baldwin solicitors to confirm that they are representing Barclays and they would like an extension... Deja vu, eh?

J

Reply sent:

Dear xxx,

I have received your acknowledgement of service and understand you will be representing Barclays in this matter.

I refer to your request for a 28 day extension for the filing of your defence. However, as you still have several weeks to prepare, I see no need for such an extension and trust you will defend by the existing deadline.

I am, of course, willing to consider an offer to settle on the basis of the Schedule of Charges submitted with my Claim, thereby avoiding the need to trouble the court system further in this matter.

I would appreciate if you could keep all communication in writing, but I am happy for you to use this email address to speed things up:

xxxx@xxxx

Yours Sincerely,

its gonna be a lot less hassle the 2nd time round.

Still asking for more time:

"Thank you for your email dated xx April 2015. We confirm that we continue to liaise with Barclays in respect of your claim and that we are currently awaiting further information. We note that you have declined our request for a 28 day extension for filing of our client's Defence. We ask that you reconsider this request to enable us to investigate your claim fully and file an appropriate Defence.

In the event an extension cannot be agreed we shall have no other option that to file an application at Court for a formal extension of time, we consider this action to be an unnecessary waste of the Court's resources and shall claim the costs of such an application from you. We would appreciate if you could respond to this letter by 4pm on 8 May 2015 so that we can take the appropriate action in good time."

I still feel like they haven't really given a good me a good reason to grant anything - surely they would have to do better than this for a formal application to the court?

Thanks,

J

Hi Orge,

I'll flag this for Site Team opinion.

Thanks Slick.

Hi Orge,

Andyorch has said you should agree to the extension request.

Otherwise you could get hit for their Application costs and the court may deem you have been obstinate.

Ok.

Should I expect something more than the boiler plate defence?

J

Hi Orge,

No point in guessing. Wait and see what they do.

Just reply saying you agree to their request.

I replied giving them an extra 14 days, instead of the 28 they asked for.

Had a very quick response this morning accepting this.

Defence is now due to be filed at the end of May.

J

Barclays have filed a specific defence. I have scanned and OCR'd the copy they sent me and will post below but my understanding is that they are challenging the claim on the following main points:

1. MCOB does not apply, as my mortgage was taken out prior to 31/10/04 - it's true that the agreement started before this and it looks like varying the contract does not bring it under the MCOB:

https://fshandbook.info/FS/html/handbook/MCOB/1/6

2. Since the MCOB does not apply, burden of proof that the charges are unfair - citing the 2009 supreme court case in defence of this.

3. Demonstration of cause for the charges which are outside the limitation period - fraud or concealment.

4. Deny applicability of Sempra Metals.

Feedback appreciated.

J

IN THE COUNTY COURT MONEY CLAIMS CENTRE

Claim No: XXXXXXXX

 

MR XXXX

Claimant

-v-

BARCLAYS BANK PLC Defendant

 

DEFENCE

 

1. The Particulars of Claim are summary in nature. Accordingly, this Defence is summary in nature and the Defendant reserves the right to amend this Statement of Case in due course.

 

Limitation

2. The Claimant's claim was issued on 14 April 2015. The Claimant implicitly acknowledges (at paragraph (1) of his prayer) the effect of section 5 of the Limitation Act 1980, namely that his claim in respect of any alleged breaches of contract (in this case, the addition of administration charges to his mortgage account) occurring before 14 April 2009 is time barred.

 

3. The Schedule 1 appended to the Claimant's particulars of claim show that ~£500 of charges were added after 14 April 2009. The Defendant admits that the Claimant's claim insofar as it relates to those charges is not time barred.

 

4. For the rest of his claim, the Claimant relies on Section 32(1) of the Limitation Act 1980. In order to rely on that section the Claimant must show that:

1) The action is based on the fraud of the Defendant; or,

2) A fact relevant to the Claimant's claim has been deliberately concealed from him by the Defendant; or,

3) The claim is a claim for relief from the consequences of a mistake.

 

5. In circumstances where the Claimant can show (1), (2) or (3) to be the case the commencement of the usual limitation period is postponed until such date as the Claimant discovers the fraud, concealment or mistake.

 

6. The Claimant has not particularised the basis upon which he relies on this provision, but cites Kleinwort Benson v Lincoln City Council [1999] 2 AC 349, a case concerning recovery of payments made under mistake of law. The Defendant necessarily proceeds on the basis that the Claimant brings his claim under section 32(1) of the 1980 Act on the basis that he is seeking relief from the consequences of a mistake of law.

 

7. The Claimant has not set out the mistake of law upon which he relies. The Defendant denies in any event that there has been any mistake of law. The Claimant's claim is a claim for breach of contract, namely that the Defendant added charges to his mortgage account which it was not entitled to add. It is not a claim based on mistake, and to characterise it as such would be perverse.

 

8. For the avoidance of doubt, it is also denied, insofar as it is alleged, that the Defendant has committed any fraud, deliberate concealment or mistake in relation to the charges applied to the Account and the Claimant Is put to proof of the allegations made.

 

9. The Claimant has been sent annual mortgage statements since 2002 as well as several reminders for payment, which identify the charges and interest applied to the Account. The Claimant could reasonably have been expected to check these statements and identify any disputed charges at the time, as opposed to some 13 years later. To the extent that the Claimant's claim is about the unfairness per se of the Defendant's mortgage conditions, the Claimant had those conditions and agreed to be bound by them in August 2001. The Defendant avers that any mistake in relation to those conditions could with reasonable diligence have been discovered at that date.

 

10. In light of the above, the Claimant's claim insofar as it relates to charges added before 14 April 2009, or the unfairness per se of the Defendant's conditions, is time barred and that portion of the Claimant's claim is liable to be struck out as disclosing no real ground for bringing the claim or alternatively as an abuse of the Court's process.

 

Background

11. On xx xxx 2001 the Claimant entered into a mortgage with the Defendant under mortgage account number xxxxxxxx ("the Account"). The Claimant accepted the Barclays Bank 2000 Mortgage Conditions ("the Conditions") contained in the mortgage agreement and attached to this Defence at Exhibit 1. The terms of the Conditions included, but are not limited to:

 

1) "If the Borrower shall fail to make any Monthly Payment on the appropriate Monthly Date then such amount of each such Monthly Payment as shall represent interest shall be added to the principal outstanding at that time and shall bear interest at the Rate. [emphasis added]" Condition

 

2.6

2) "If any direct debit payment is refused by the Borrower's Bank then the Company shall be entitled to make a service charge for each unsuccessful application for payment of an amount fixed by the Company from time to time [emphasis added] which shall be by the Borrower on demand and until such sum is paid it shall form part of the Amount Secured and bear interest at the Rate." Condition 3.4

 

3) "If any direct debit to the Company is cancelled and is not replaced with a new direct debit or the account is in arrears [emphasis added] then without prejudice to the other remedies of the Company in respect of such breaches of these conditions the Company shall be entitled to make a monthly administrative charge in an amount fixed by the Company from time to time, such charge to be payable on demand by the Borrower and thereafter until paid shall form part of the Amount Secured and bear interest at the Rate." Condition 3.5

 

12. The Defendant's Conditions give the Claimant a fair and transparent view of those terms upon which the mortgage was provided.

 

13. It is averred that the charges and Interest In dispute are valid and remain lawful and enforceable.

 

14. The Claimant further cites the Unfair Terms in Consumer Contracts Regulations 1999 (the "UTCCR") but fails to specify any particular provision on which the claim is founded. In fact, the Claimant fails to advance any recognisable cause of action in support of his claim. To the extent that the Claimant seeks to rely on arguments relating to the fairness of charges under Regulation 5 of the UTCCRs, such arguments have already been rejected by the Supreme Court in Office of Fair Trading v Abbey National PLC and others (2009) UKSC 6 and by the High Court in Office of Fair Trading v Abbey National PLC and others (2008) EWHC 875 (Comm) and (2008) EWHC 2325 (Comm).

 

15. It is denied that the Defendant is liable to the Claimant for the sums claimed and interest as pleaded, or at all.

 

Particulars of Claim

16. Paragraph 1 is admitted. The Defendant provided the Claimant with a mortgage secured over xxxxxxx

 

17. Paragraph 2 is admitted.

 

18. Paragraph 3 is denied. Section 1.6 of the Mortgage Conduct of Business ("MCOB") states that the MCOB applies to regulated mortgage contracts entered into on or after 31 October 2004. It is averred that the MCOB provisions are not relevant to the Claimant's Account. In any event it is denied that the Defendant has acted in breach of the MCOB.

 

19. Paragraph 4 is admitted to the extent that mortgage charges were applied to the Account. The Defendant's position is that ~£1300 was applied in relation to arrears admin charges and ~£350 applied in relation to unsuccessful direct debit charges. The total of these mortgage charges applied to date is therefore ~£1700.

 

20. Paragraph 5 is admitted to the extent that interest has been applied to the Account in respect of the charges applied at mortgage rate. This was In accordance with the Conditions as set out at paragraph 11 above. It Is denied that the charges are unlawful.

 

21. Paragraph 6 is denied and the claimant Is to proof of the facts. The Claimant refers to "the charges" in plural; the actual charges applied to the Account represent two separate charges, one for arrears and one for a rejected direct debit.

 

22. The relevance of paragraph 6 is in any event denied. The charges added to the Claimant's account were not charges representing the actual costs incurred by the Defendant, but rather were reasonable approximations of those costs, fixed from time to time by the Defendant, and added to the Claimant's account, pursuant to conditions 2.6, 3.4 and 3.5 above. The Defendant repeats paragraph 14 above and will rely on the OFT v Abbey National case cited therein.

 

23. For what it is worth, MCOBS 12.4(1), though not applicable to this mortgage for the reason set out at paragraph 18 above, permits the addition of charges which a reasonable calculation (rather than an actual calculation) of the costs incurred by a lender as a consequence of a borrower being in arrears.

 

24. Paragraph 7 is denied. The Claimant does not refer to the relevant provision within the UTCCR upon which he relies. In addition the Claimant has not partlcularlsed the said breach.

 

25. Paragraph 8 is denied and the Defendant refers to paragraph 18 above. Again, though not strictly relevant, MCOB 12.5.3 sets out considerations for determining whether acharge is excessive:

1) "The amount of its charges for the services or products in questions compared with charges for similar products or services in the market;

2) The degree to which the charges are an abuse of the trust the customer has placed in the firm; and

3) The nature and extent of the disclosure of the charges of the customer."

 

26. In light of the above considerations, which the Defendant avers are reasonable considerations for the Court to take into account in determining whether or not the charges added by the Defendant are unfair, it is denied that the levels of charges applied to the Account are unfair because they are a result of unfair treatment.

1) The charge £27.50 was applied every time a direct debit transaction failed. It is the Claimant's duty to ensure that he had sufficient funds to repay his

mortgage Account and Defendant is entitled to charge a fee for dealing with the rejected payment and updating the account. This fee Is not excessive and has been disclosed in every annual statement provided to the Claimant.

2) The fee of £40.00 is a fee charged for the Claimant being in arrears, this fee was stated on "statements of overdue account" sent to the Claimant. The fee covers additional administration work involving letters, calls and amendments to the mortgage records. Claimant has been in arrears on the account since December 2002.

3) The Defendant has sent the Defendant multiple letters and correspondence in respect of the Account and its call logs note multiple calls with the Claimant discussing arrears, repayments and charges. There is nothing to suggest that the Claimant has not been treated fairly and the Claim is put to proof of the same.

 

27. Paragraph 9 is denied. The Defendant avers that the charges applied to the Claimant's Account were in accordance with the terms of the the Conditions set out at paragraph 11 above and that the Defendant was entitled to charge interest on those charges.

 

28. For the reasons set out above, the Claimant's claim Is denied In Its entirety.

 

Interest

 

29. The Claimant's entitlement to rely on Sempra Metals is denied. In any event, the Claimant is put to strict proof of any loss he suffered as a result of the charges added to his account. The Defendant denies (for the avoidance of doubt) that the Claimant is entitled to interest at 19.5% as alleged.

 

30. Without prejudice to the Defendant's position as to liability, the Claimant's entitlement to interest under section 69 of the County Courts Act 1969 is admitted. It is denied that the Claimant is entitled to claim interest under that Act at the rate of 8%.

 

STATEMENT OF TRUTH

 

I believe that the facts stated above are true. I am duly authorised by Barclays Bank PLC to sign this statement on Its behalf.

 

Name: xxxx

Position : Partner

Date: xx May 2015

For reference, here is my final POC.

Thanks,

J

Particulars of Claim

 

1. The claimant entered into a mortgage agreement with the defendant on or around xx/8/2001 concerning a secured loan of £xxxxx.

 

2. The said loan is subject to the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR)

 

3. The defendant is statutorily bound by Financial Services Authority regulations – mortgage: Conduct of Business rules (MCOB) contained in the FSA Handbook, implemented under the Financial Services and Markets Act 2000.

 

Summary

 

4. The defendant levied mortgage charges totalling ~£1.5k against the claimant (Schedule 1).

 

5. The defendants also levied further interest upon the said unlawful charges

 

6. The mortgage charges were levied at a rate which exceeded their administrative costs.

 

7. The level of the charges were unfair because they breach the requirement of fairness contained in UTCCR.

 

8. The level of the charges is also unfair because they are the result of unfair treatment by the defendant and therefore levied in breach of the defendant's statutory duty to treat their customers fairly contained in MCOB (Section 12.5).

 

9. For these reasons the interest charged on the unlawful charges is also unlawful.

 

And the Claimant claims;

(1) A declaration that the sums totalling ~£1.5k have wrongly been applied to the Account. These charges are older than the normal 6 years but are claimed by virtue of s32 (1) c Limitations Act 1980 as per Kleinwort Benson v Lincoln City Council.

(2) Payment of the said sum of ~£1.5k and interest in restitution (at 19.5%) of ~£8k as per Sempra Metals v Inland Revenue Commissioners.

(3) Interest under section 69 of the County Courts Act 1984*at the rate of 8% per annum [daily rate of 38p per day] from the date of claim until judgment or sooner payment.

I believe that the facts stated in these particulars, comprising of 3 pages, are true.

Dated



Signed

Hi Orge,

In response to your PM earlier, I do not think the Defence is "particularly robust" and it's what I'd expect to see from Barclays Litigation.

Ok. It does seem more specific than the generic defence they filed in my cc claim but will wait to see what they do next.

Do you have any comment on the MCOB part? Is it a problem if my agreement is not regulated by this legislation?

I also looked a little into the statute of limitations and found that there may be an easier way to argue charges older than 6 years:

"S.20 Limitation Act 1980 provides that the time limit for actions to recover money secured by a mortgage or charge or to recover proceeds of the sale of land

(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.

This means that if any charges have been added to the principal sum you can claim back 12 years."

Only 2 of my charges are older than 12 years.

Thanks,

J