Following three recent defeats with ERCs:

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/27030-harsh-letter-received-kensington.html

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/19662-maroonfox5-mortgage-express-lost.html

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/36778-charbydis-platform-claim-struck.html

It is recommended no new ERC claims are made.

The mortgage companies have greater litigation departments and more experience of litigation than the banks and are not going to back down so easily.

All fast trackers should seriously consider withdrawing their claims to avoid incurring further costs. Try to negotiate out of payment of costs to date. Make an offer to withdraw conditional upon them not pursuing costs. Do not withdraw your claim from court until you have negotiated out of costs.

All those with small claims should also consider withdrawing but should also be mindful of the fact that they are liable for costs incurred pre allocation and therefore they may be better off continuing to trial. Do not withdraw your claim from the court until you have negotiated out of costs. You may well be able to negotiate a settlement of a lower amount.

Whilst the risks are greater regarding ERCs the claims are not without merit. Seek legal advice if in doubt.

Also small claims claimers should also be wary if there is a legal indemnity clause in the contract as mortgage companies are enforcing these to claim their legal costs.

Other mortgage charges:

There have also been 2 defeats on other mortgage charges:

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/36778-charbydis-platform-claim-struck.html

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/59031-barry-swift-court-date.html

Charbydis because 15.00 was deemed reasonable. Barry Paul because he was unable to prove the charge was a penalty. Claimants should be aware that the burden of proof is on them to prove that the charge was a penalty.

In addition you should also be wary of the mortgage indemnity clauses in the contract. This can make you liable to pay their legal fees for defending your claim and is likely to be more than any charges you have paid.

Thank you Zoot. Bearing in mind that I have a no costs order against me for the next hearing, do you think it's worth my carrying on?

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/17607-ladymoonray-paragon-personal-finance.html

I don't want to waste my/the court/paragon's time, but this might be a chance to get a decision in our favour. I have until a week tomorrow to get the bundle in, if I'm going ahead.

If you've got a no costs order you could end up paying more if you withdraw. I would say you are in the perfect position to continue. You need to be aware that the burden of proof rests on you to prove that it was a penalty and therefore a CPR part 18 request for information is vital.

Thanks, Zoot. I'm not going to take a final decision whether to go on until I've got everything together for the bundle, but I shall definitely go that far

Is it worth pointing out that Barry's claim was not for an ERC?

from what I can see both were lost for different reasons surley this can only strengthan any arguments how much time before the next one is in court if they cannot justify their losses then we might be in with a chance

Bona

Sorry to hear all this bad news - can't read Barry's at the moment as I have scratched my cornea and looking at the screen hurts.

Are you saying that for those of us on small claims the costs would be from the court or from the defendant?

"The lesson to all of us is to have "an official application for a disclosure order" submitted with our claims." Barry's advisory from experience.

As Bona says both cases were lost for different reasons and certainly in Barry's case the omission in question appears to be one (if not THE) main reason for drawing the financial institutions to battle. And the one area that they have,so far, not been prepared to defend. Other than the cases were lost and neither, seemingly, for core legal reasons (a DJ that chooses to ignore certain key facets of a presentation - we still await the appeal; and an entirely different (rectifiable) reason for Barry) there appears to be no common ground or fundamental flaw in the basic reasoning - otherwise please tell me if I am missing something since I've already submitted N1s.

I've already floated the question of participants being "on an equal footing" and "dealing with a case in ways which are proportionate - to the financial position of each party".

Should we assume (hate the word!) that the presence of barristers at the recent proceedings is allowed on the basis that the claiment could have hired one if he/she so wished? And that "equal footing" is only going to occur when the claiment can match the other party for financial resource or are we permitted to challenge the size and scale of the opposition?

Hi guys, my court date is for 2nd March and I've still got another couple of weeks to get my court bundle in but I'll definitely be continuing, the judge ordered that my claim stay in small claims and I'm only claiming for an ERC, I had no late or missed payments or anything that would have required manual intervention of £2000 to repay my mortgage, the mortgage wasn't even fixed rate, it was a tracker at 2.5% above base rate. I am happy to go to court as its like has already been said I've incurred costs already and therefore have nothing to lose.

Sam

I have just sent of my initial letter asking for my ERC back, I have had no late payments or anything against the mortgage. Bearing in mind that I have not even got to small claims situation just yet, do I stop or do I carry on ? I am a little concerned/confused.

Many thanks

GASS

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;

• b) Copies of any statement or other document relied upon as showing that each and every charge has been made;

• c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

• d) Copies of decided cases and other legal materials to be relied upon.

If the Claimant fails to comply with this order, the claim will be struck out without further order.

2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

• a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;

• b) Whether such charge is accepted to be a penalty, and if not why not;

• c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;

• d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

• e) Any witness statements.

• f) Copies of decided cases and other legal materials to be relied upon.

If the Defendant fails to comply with this order, the Defence will be struck out without further order

CAN ANYONE CONFIRM THAT THIS IS THE DISCLOSURE ORDER WE RE TALKIN ABOUT

I am up to the point of sending in my allocation questionnaire. Probably will go to the fast track.

I read Barry and Jamorgans thread with complete horror and hope they will both win the war after their setbacks.

I am trying to work out how it will effect my claim. I did not have missed payments and I do have paperwork from the Abbey where they use the word penalty when calculating the charge. (Sent a copy to Tamadus.)

Just want to know if I have covered all basis i.e is there a formal request I make on my AQ that makes them disclose their costs and losses that they incurred when I breached my mortgages terms and conditions.

Good luck to everyone who is going to court in the near future. Big cosmic ordering of luck and kind judges to you all.

juli99

If anyone else has a counter claim for costs against them I think its worth looking into that side of it before court so one is armed with ammunition if it goes the wrong way.

Hi Team

Today i had a phone call from the solicitor acting on behalf of Birmingham Midshires. I have been selected from all of the current claims going on, to be the first to go into court and present my case. He also said that they are about to apply for an extention on the time limit for submitting their court bundle, as they have only just been hired by Birmingham Midshires to sort out the claims coming in. After running through various arguments, i have decided to accept the offer of half of my claim, which was offered back in October. This was a difficult decision for me to make. I have with Zoots and others help, worked hard at getting everything right.

He has informed me that they will defend in court ALL claims issued against them. He also confirmed Barristers are going to be used.

The risk in my case is small compared to others, and i have seen brave people in the threads here take on the Mortgage companies and lose.

I recommend that ALL NEW ERC claims be put on HOLD for now. It is too risky to your families security, and financial security to tackle them at this moment in time. DLA Piper are getting more work from other financial institutions with regard to ERC claims. Maybe in 6 months time we can try again if there has been a test case, or another loophole found.

My advice here is not running away scared, this is purely and simply Damage Limitation. I would hate for someone to go into court for a £6000 claim and come out owing that amount in their costs. I feel it is too risky to carry on at this time. From some PM's i have had about claiming Erc's and the questions asked about the law, some will be ripped apart in court by the Barrister. 6 people turned up at Barrys hearing. Please follow Zoots advice. I am.

I am gutted, I was going to go after Midshires but have dragged my feet since November and now looks like I've missed out!

Was going to use the cash to settle a debt as well - hopefully we will get around it...

Sorry to bring you bad news, but the risk is too great. Spent 20 mins with a Barrister last night in Cranfield Aerodrome bar. Asked him about it and he said the same thing, you exercised your right to redeem. That is what he would use in court. Maybe in 6 months time we maybe in a better position to win without going to court. I see you had decided what to spend your money on. The ones who have been paid out were paid by the legal team in BM and were not use to these sort of ERC claims. Paid out in error he said.

well folks given the days developments i suppose i m going to be the test case. iam now hoping to god that my n244 for strike out is granted by th district judge, the mids have failed to provide their disclosure and ive requested strike out

Terrible news - this really does seem to be a legal technicality though, rather than the defendant winning the case based on the points of law raised.

I have just sent my 14 day letter to the Halifax, but I note that these claims were both in the County Courts.

Do you think these rulings will be distributed around all the banks as well? They must all be looking for ways out of this situation?

As I had no late payments and the base rates were far below my APR for the entire period of my loan (see thread Mattfromnotts vs Halifax), I would assert that this argument would not stand up in court. What is the position in the small claims court with regards to costs?

god iam so confused.

iam at the stage where my mcol is meant to be going on in 10 days. iam claiming 3764. early repayment fee from woolwich now thinking maybe i should quit now

rhianweir - put it on hold for now. Zoot is advising not to start new claims in light of what has happened recently.

I think I am to far down the line to withdraw. I have a case manaagement hearing on 13th Feb. This will be fast track if I get my way or multi track if they get thiers. It's against Kensington. They have applied for a strike out of the ERC but not the charges. If they get the strike out, will I still be liable for costs even though the remainder of the claim will continue?

They have applied for a strike out of the ERC but not the charges. If they get the strike out, will I still be liable for costs even though the remainder of the claim will continue?

If you contest the strike out and lose you are likely to be liable for the fees attributable to the strike out.

Will the Express article re OFT in the "Harsh letter from Kensington" thread have a bearing?

Will the Express article re OFT in the "Harsh letter from Kensington" thread have a bearing?

Not yet I doubt but I have wrote to my MP (Jack Straw) to ask him to get the FSA to look at these fees. If they can call £200 unjustifiable then I cannot see how they cannot investigate ERC's.

Hi all,

As I've just said on my thread I'm not giving up because my defeat has taught me where I went wrong & I won't make the same mistake twice.

For my full response to comments on this thread & my own please follow the link to my thread below & go to comment 37

Barry v Swift (Court date 29/01/07)

Barry