take it easy mate your ma comes first everytime....biffa

phoned the courts today, file still with the district judge

Cheers Tide, to me honest mate im on tenderhooks at the minute, my application for striking out went up to the judge today, ive been told bt Liverpool county court to expect a decision on monday as to wether they will strike out the defence due to BMs faliure to disclose by 4pm last friday. to be honest they still havent disclosed. unlike Ukaviator my claim is not being dealt with by DL Piper.its still being dealt with by HBOS at Trinty Rd halifax Iam also fully aware that the legal rep dealing with my claim is on her hols till 7th feb so iam assuming upon her return she will apply for extra time to submit their bundle. just hope the judge as as struck em out by then. My court appearance is on 21st March would welcome all the support i can get but hoping it disent go that far. mind you i did originally request judge order full dislosure so lets see what happens.....thanks for the support.....Biffa

hopefully Zoot, hopefully..iam aware of UKavaitors success, he was lucky enough to have been offered a deal earlier in the claiming process, ive had no such offer. But i remain upbeat the District Judge will strike out the defence and grant me judgement. after all the Bm have defied his court order re disclosure

Thanks Martin for the offer mate, im not actully in court til 21st march but as far as i know im the next on CAG shduled to be heard V the Birmingham Mids. as ive said before i just hope mt request for striking out is successful. to date there has still been no sign of teh BMs dislosure and i fear there wont be any sign of it til at least the 7th Feb. NOTE DISTRICT JUDGE ORDERED FULL DISCLOSURE DEADLINE LAST FRIDAY 26TH JAN 2007.I suspect the BM will attempt to apply for an order for extra time to prepare bundle. Hence the reason i wanted to get in there early in an attempt to strike em out. luckily the judge granted my request for disclosure order. .................Biffa

Folks in light of the developments of the last 24 hrs i can honestly say ive never felt so down. i now feel as if my only chance of victory in this case is if the District JUdge adheres to my request and strikes out the midshires defence. unlike Ukavaiator my claim is being dealt with by BM legal team and not D.L PIPER. At least up to now they are !.Liverpool county court have told me to expect a decision re the striking out application next monday.....heres hopin.il keep yer all informed as usual....biffa

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

Draft Order for Directions 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

This Is What I Enclosed In My Aq And The Judge Granted It, Infact The Defence Has Failed To Adhere To This And Ive Applied To Have Their Defence Struck Out Today..biffa

Draft Order for Directions 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 ORDER WE RE TALKING ABOUT HERE ?

N244 Completed requesting defence to be struck out and judgement be made in my favour. the birm mids have failed to uphold the judges orders for disclosure with 14 days. have to say folks Liverpool County Court were brilliant today...very helpful even gave me advice on how to strike em out.

yep alison, up to now alan has been the only one successful agaisnt them, mind you i think hes been the only one up against em, think alot of us waited to see what would happen,before gettin involved. dont think theres nothin to be scared of tho....biffa

Les what did you put on your N244 ? did you fill out the back on merely just applied for strike out on first page

THANK GOD !!!!! The Liverpool county court has accepted my statement of case. and i have managed to submit the additional disclosure to the midshires. The courts have also confirmed that the midshires have failed to disclose their material and as such i will be submitting a form N244 Requesting a strike out of the defence, il keep yer all posted...biffa

asalique, if its charges your going after, i wouldnt unduly worry, your almost home and dry re charges.....its the ERC s that prooving to be the major challenge....go for your charges as normal im sure youl have success

theres a few GE Money cases going through now, check out seawalls thread

sounds to me that its time to get your claim in mate.

i love you yer know Zoot !

on to it now Zoot, lets hope the court will accept tomorrow...i know Bm will not have provided their bundle, theyve told me themselves

cheers Paul, i assume a stating of case is merely a statement outlining my claim and the legislation to support it, also perhaps the circs surrounding the the re morgage and the reasons for it., explaining why sub prime product etc.....help...lol

zoot i thought the claim was clearly apparant in the initial mcol and subsequent corresponce im assuming i had to spell it out on an additional statement.....bugger ! the deadlne was friday ..thought i had covered everything

Zoot i thought the statement was my case.....bugger what have i missed out here !!! ive already submitted my bundle.......help !!!

Count me in on any financial contribution to assist with the appeal we cant let morgy face this alone...where do i contribute ?

1. I am the claimant in this case. 2. I make this witness statement in support of my claim and in response to the defendants defence. 3. The Claimant agrees with the Defendant as to paragraph 1. Of the defence. It is not disputed that the Claimant had a mortgage account with the Defendant. 4. The Claimant agrees with the Defendant as to paragraph 2. and 3. Of the defence. The terms and conditions of the mortgage advance were contained in the offer of advance.(outlined in para 6.1 and 6.2) of the terms and conditions. 5. The claimant does not dispute the conditions outlined within paragraph 4 of the defence. The claimant fully accepts that the mortgage was redeemed prior to 01.06.2006. The Claimant accepts the contention that redemption of the mortgage was expressly provided for in the mortgage offer. The term provides that an early redemption charge was payable in the event of redemption and thus represents a charge that is payable in the event of a breach of contract. This term, however, merely anticipates a breach and does not represent the exercising of a right under the contract. 6. The Claimant was in breach of a major term of the contract. The particular term in the mortgage which was breached was an express term relating to the period of twenty-five years for which the mortgage was to run. This term of the contract was clearly stated in the written mortgage offer signed by the Claimant, the terms of which were incorporated by reference into the mortgage deed which was not only signed, but also witnessed. There is clearly no room for doubt that such a clause existed in the contract. Similarly, there is no question that the Claimant in fact redeemed the mortgage on or about 09.12.2004 as evidenced by the final redemption statement, and the defendant’s correspondence dated 10.11.2006. This date is clearly well before the contractually agreed date of April 2028 and thus represents a clear breach of the contract. 7. To further the contention that a breach of contract did in fact occur, it is submitted by the Claimant that during the period of the twenty-five years the Claimant was clearly under a contractual obligation to pay monthly instalments to the Defendant and clearly has not made such payments since the redemption of the mortgage. 8. In the event that the court were to find the said term as exercising a right and without prejudice to the above paragraph it is submitted that the fact that such a term exists does not prevent a court finding of breach of contract following the House of Lords decision in Bridge v. Campbell Discount Co Ltd [1962] AC 600. This case was decided upon the finding of a breach of contract. The finding of a breach of contract as opposed to the exercising of an option was based on the fact that to amount to an exercising of an option there had to be intention to exercise the option demonstrated by the hirer. When I terminated my mortgage early it was purely to be free from the burden of the contractual obligation. I was not aware that I was exercising an option to terminate but merely knew that if I did end early I would have to pay a penalty. If I am unaware that I am exercising a right how can it be said that I intended to exercise such a right. Two of their Lordships (Lord Denning and Lord Devlin) went further in their findings, holding that even had the hirer exercised the option, they would still be prepared to strike down clause 9 as a penalty and thus were of the opinion that Associated Distributors Ltd. v. Hall was wrongly decided. This, as a minority decision, however, I recognise as not being binding. However, it is the Claimant’s submission that the term relating to the early repayment charge contract is merely a penalty clause disguised as an option to exercise a right. It is respectfully requested that the court should look to the substance of the clause rather than the form. It is thus my assertion that such a term is simply pretence at conferring a right to exercise an option when in essence it is simply a term setting out the consequences of a breach of contract and as such in the absence of a genuine pre-estimate it amounts to a penalty. As such, the clause can thus be seen as ambiguous as there are two possible interpretations of the clause. In the event of ambiguity in a written contractual term, the contra proferentem rule requires the court to resolve any ambiguity against the party who drafted the term. In this regard I would also like to rely on Regulation 7 of the Unfair Terms in Consumer Contracts Regulations 1999: (1) A seller or supplier shall ensure that any written term of a contract is expressed in plain, intelligible language. (2) If there is doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail. 9. The Claimant denies the contention by the Defendant that the term relating to the early repayment charge is a liquidated damages clause. A contractual term which provides for a specified amount payable (whether by a fixed sum or calculated by way of a percentage) must represent a genuine pre-estimate of loss if it is to be regarded as a liquidated damages clause Dunlop Pneumatic Tyre Co. Ltd. v New Garage & Motor Co. Ltd. [1915] A.C. 79. The Claimant has repeatedly asked the Defendant to provide the Claimant with details of how their charge was calculated to represent a genuine estimate of their loss. The Defendant has failed to respond to this request and thus the Claimant is of the opinion that no genuine pre-estimate indeed took place. Indeed the defendant has refused to disclose their estimate of losses and as outlined in their correspondence to the claimant dated 10.11.2006,they state that their charges are ‘commercially sensitive information’ and not to be divulged. The Claimant thus makes a respectful request to the court that disclosure of this information is provided to the Claimant forthwith to bring an expeditious termination to the proceedings. 10. In relation to paragraph 6.of the defence, the Claimant contends that if the Defendant complies with the Claimant’s request to provide a breakdown of losses to which the Defendant has been put to, it would reveal that the charge levied would in fact be revealed to be a disproportionate penalty under the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). The Claimant’s account falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as the Claimant is a consumer. The charge constitutes 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. The Claimant vigorously contends that this is the position regarding the redemption fee of £3,138.57 which the Defendant deemed fit to apply to the Claimant’s account. It is further submitted by the Claimant that the Defendant’s failure to provide such information is for the reason that such information would reveal that the term is in fact a disproportionate penalty. Had the Defendant been able to demonstrate that the charge was indeed a liquidated damages clause it has had ample opportunity to do so and the Claimant would not have need to initiate these proceedings. It is thus respectfully submitted by the Claimant that the Defendant’s defence be struck out as an abuse of process or in the alternative that an order to disclose this information is made so as to satisfy the Claimant that the charge is indeed a liquidated damages clause. 11. The Claimant accepts that the Defendant has provided a reason for imposing the charge. However, the Defendant has not given a breakdown of its actual losses nor provided a response as to how it came up with a genuine pre-estimate of its losses. Furthermore it is contended that the reasons thus far provided by the Defendant fail to take into consideration the duty of the Defendant to mitigate its loss in accordance with the principles set out in Payzu v Saunders [1919] 2 KB 581. 12. The Claimant contends that the early redemption charge represents a disproportionate penalty and a fee calculated by terms of a percentage of the sum repaid can not amount to a genuine pre-estimate of the Defendant’s loss. Moreover, the early redemption charge represents a fee levied with a view calculated to profit from the Claimant’s breach, to act as a clog on the equitable right to redeem or to punish the Claimant for his breach of contract. 13. In the premise of all the above, the Claimant vigorously denies paragraph 7.of the Defendant’s defence and respectfully submits that the Claimant does indeed have a legitimate case in relation to this claim. Indeed had the Defendant complied with the Claimant’s requests for information the Claimant would not have needed to seek redress through the courts. Statement of truth: I believe that the facts stated herein are true. Dated 24.01.2007 heres a copy of my personal statement bunny

ACCOUNT NUMBER: XXXX Request for repayment of charges Dear XXXX, 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 £XXX , the sum of £XXX representing the contractual rate of interest applied by yourselves in respect of the said charges (Please find enclosed schedule of charges detailing dates, amounts and interest) and xxx in respect of a redemption fee. 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. (You may want to add something here relevant to how the charge they levied could not amount to a genuine pre-estimate. This will obviously vary depending on the particular product and lender) 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. We would vigorously contend that this is the position regarding the fee of XXXX which you deemed fit to apply to our account. 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 XXXXX for late payment, return of debit fees and early redemption far 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, XXXX __________________ All advice is offered in good faith and with care taken over the accuracy. Some is mere opinion some based on law. Feel free to use information provided, however, never act on legal advice offered by anonymous strangers with out first checking it out You know it makes sense