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Could anyone who has a legal idemnity clause in their mortgage, particularly, but not exclusively, from companies who have sought to rely on these, please post the wording of the clause in this thread with the name of the company and the date the mortgage was taken out.
GMAC RFC mortgage taken out 1998
The Company's costs and expenses are recoverable from the borrower on demand. The borrower must pay the company's costs and expenses in full unless the borrower shows that the costs and expenses were unreasonable in amount
We are fighting the costs on the unreasonable aspect got a blo//////y good case
Commercial First Mortgages Ltd taken out in 2003. Charged over £17k redemption.
Indemnities.
The borrower shall on demand indemnify the lender, without prejudice to any of its available rights,against any loss, cost (includung for the avoidance of doubt, but without limitation,any internal administration costs and expenses ),expense or liability
( including loss of profit ) which the lender shall certify as sustained or occurred by it as a consequence of the occurrence of an indemnity event. This indemnity shall include, but without limiting it to, any loss, cost, expense
or liability sustained or incurred in maintaining or funding the loan or any part of the loan or cancelling any financing from third parties obtained by the lender to effect or maintain the loan or part of the loan.
Further on:" Indemnity Event "
(a) any failure by the borrower to pay on the due date any sum due to the lender;
(b) any other breach or default under any facility document or obligation of the borrower to the lender;
(c) any redemption or prepayment, in whole or part, other than on a due date; and
(d) the loan, or any part of the loan, not being advanced for any reason (other than default by the lender ) after the borrower has accepted this facility; http://www.consumeractiongroup.co.uk...t-big-erc.html
The clause Platform relied on is as follows: "17.1 You agree as a separate and independent agreement on demand to reimburse us [on a full, complete and unqualified basis] against all reasonable costs, claims, proceedings and liabilities which: (a) we may reasonably incur, or which may be made against us, whether before or after our power to sell the Property has become exercisable in connection with the mortgage; (b) arise as a consequence of anything done or purported to be done under these Conditions; (c) result from you failing to do anything under these Conditions ; (d) result from any payment or discharge in respect of the Secured Amounts [whether made by you or a third person] being challenged or declared void for any reason whatsoever. 17.2 The amounts payable under Condition 17.1 shall carry interest at the Interest Rate from the respective dates on which they were paid or incurred by us until payment in full by you."
The mortgage was taken out on 28/5/04.
That is certainly a particularly onerous term. I'm putting together something for the FSA on these clauses. But I think it may well be appropriate for you to make a complaint in your own right regarding this one to both the FSA and the fos. There may well be something they can do in this instance. I'm not entirely sure of the implications that it has been upheld by a court and whether that prevents the FSA and FOS stepping in but its worth a shot.
If you need any assistance with this give me a shout.
Also if you feel ready to discuss the hearing please feel free to pm me
I have sent you a couple of posts regarding this very matter. I am in court on thursday against GMAC for about 200 in d/d failed payment charges. Their lawyers have sent me letter saying i am responsible for all thier costs and advising me to drop the action. Are the charges unfair under the contract laws and consumer laws?
Zoot, I have made a complaint to the FSA who asked for a copy of the contract which I sent with reasons why I thought the clause unfair. They have replied saying they have assigned it to a case officer.
The legal charge is between the parties set out above and shall take effect upon date as the consumer credit agreement pursuant to which this legal charge is made is executed and dated on behalf of the lender theirin and the mortgagee herein.
In this legal charge where the context so requires or admits the masculine shall include the feminine and where there are two or more persons included in the expression "the mortgagor" the singular shall include the plural and any covent declaration or certificate expressed to be made or given by the mortgagor is and shall be deemed to be made or given by two or more persons jointly and severally.
In this legal charge where the context so admits the expressions "the mortgagor" and "the mortgagee" shall include the persons deriving title under the mortgagor and the mortgagee respectively.
At our costs hearing yesterday the Master started of buy explaining the rules under which a mortgage company can claim all their costs the otherside had produce caselaw hesaid that the costs had to be reasonable and be reasonable incurred I said our mortgage agreement states that and not the words actual costs he said actual costs still have to be reasonable I said but if there is an idemnity clause he said the costs still have to be reasonable and even in an indemnity costs if they can be proved not to be reasonable or not reasonably incurred they dont have to be paid
Surley this means that if a company counter claims againt a claiment under an indemnity clause this can bechallenged as to the reasonablness of both their actions and the amount of money they are requesting for costs.
I had the same comments made to me by the judge. The idemnity clause means just that, I indemnify them for their costs. The judge decided on an indemnity basis a barrister was justified but knocked off a massive £10 off the amount for letters.
This means basically that challenging costs incurred under one of these clauses is a waste of time.
Depends on the argument we had 25% of the Barristers costs reduced as much as 50% but we went prepared if the costs are reasonable no chance but in our case we are proving that they are not but we have had to do our homework and everyones case is different
Zoot, I have made a complaint to the FSA who asked for a copy of the contract which I sent with reasons why I thought the clause unfair. They have replied saying they have assigned it to a case officer.
Hi Chrbydis, is there an update on this??
Any reply from the FSA on the indemnity clause from platform??
The reason i ask , is that I just received platforms defence bundle for our claim for returned d/d charges etc. Again.. they have failed to disclose cost's pursuant to the judge's order and rely on a weak defence of ' you signed the t&c's...blah blah blah.
our claim is for £500, their counter claim is estimated @ £3000
I haven't heard anything back yet but am planning on chasing them up soon. As its bank charges you are chasing you should be alright but I would be very careful although if they've failed to respond to a judges order you should be ok but I would hope someone with more experience could confirm this.
I haven't heard anything back yet but am planning on chasing them up soon. As its bank charges you are chasing you should be alright but I would be very careful although if they've failed to respond to a judges order you should be ok but I would hope someone with more experience could confirm this.
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Legal Indemnity Clauses
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Originally Posted by Charbydis
