Thanks Alan, I've included your suggestion in my statement as shown below -- ======================= Moreso the "greater scrutiny" reffered to by the defendant is almost certainly applied automatically through their computerised systems as confirmed by the defendant in the information provided under S.A.R - (Subject Access Request) that monthly arrears statement are generated automatically. ========================== Is this alright?

@ zootscoot Do you have any suggestion on how to improve my statement please?

Here is my statement for my court hearing coming up on the 15th December, suggestions on how to improve the statement would be higly appreciated. ========== CLAIMANT’S STATEMENT The claimant has had a mortgage contract with the defendant, account no. XXXXX since December 2003, which is conducted on their standard terms and conditions The claimant is claiming a refund of money taken in the form of penalty charges over the last 3 years in the form arrears fee, non-payment by Direct Debit fee, own building Insurance Fee, solicitors Instruction fee Unpaid cheque fee and Unpaid Direct Debit fee. The Bank's charges are a disproportionate penalty, and therefore unenforceable as they are contrary to common law. Further, as a disproportionate penalty they are invalid under the Unfair (Contracts) Terms Act 1977 s.4 and under the Unfair Terms in Consumer Contracts Regulations 1999. Para.8 and sch.2 (1)(e). In the event that the charges are not a penalty then they are unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15. In the defendant's defence and counterclaim, the defendant argued (paragraph 9.1 of defence and counterclaim ) that an account in arrears requires and are subject to greater scrutiny by the defendant’s employee and agents than account that paid up to date. Whilst this may be true the defendant had and is already paying for this service by way of higher interest rate which is currently at 0.75% above the defendant’s standard variable rate equivalent of about £139 per month even though the claimant's account has being paying up to date for the last 16 months. Moreso the "greater scrutiny" reffered to by the defendant is almost certainly applied automatically through their computerised systems as confirmed by the defendant in the information provided under S.A.R - (Subject Access Request) that monthly arrears statement are generated automatically. Furthermore the issue is only whether the money levied by the Defendant in respect of the claimant’s contractual breaches greatly exceeds their genuine pre-estimate of loss, if this so then it renders the “fee” a penalty which is unlawful under common law. Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79). By making the claimant pay for the same service twice by way of an interest rate currently at 0.75% above the defendant's standard variable rate and by way of a monthly fee is disproportionate and does not pass the “good faith” test under the Unfair Terms in Consumer Contracts Regulations 1999. Paragraph 1(e) of Schedule 2 to the Regulations provides that a term “requiring any consumer who fails to fulfil his/her obligation to pay a disproportionately high sum by way of compensation” may be unfair.

Here is the defence and counterclaim in full. I have issued proceedings against Lloyds TSB for £2250 in bank charges and I am quite willing to pay the money owed TSB which is actually £1035 directly to Lloyds TSB from penalty charges refund. My strategy is to get the default which was registered/flagged by 1st Credit removed. the debt was sold to 1st Credit. ======== The Defendant denies that the claimant made a request under section 77(1) or section 78(1) of the Consumer Credit Act 1974 The Claimant wrote to the Defendant on 22nd September 2006 which letter referred to a letter dated 30th August 20006. The letter dated 22nd September did not constitute a request under section 77(1) or section 78(1) as it was not accompanied by the fee payable for such request. The defendant denies receiving statutory notice under the data protection Act 1998 from the Claimant and further denies that it has breached the claimant’s rights under that Act As the Claimant is aware the Defendant is the assignee of the debt previously due from the Claimant and the Third Part to Lloyds TSB Bank. Following receipt of the letter of 22nd September 2006 from the Claimants, the Defendant wrote to the Claimant on 26th September 2006 informing him that the Defendant’s client (Lloyds TSB) would be informed of the request and the document would be sent to the Claimant as soon as possible. It is not admitted that the Claimant has suffered damage and the Claimant is put to proof of such damages It is denied that the Claimant is entitled to an order for the destruction of any data held by the defendant or to the removal of the default registered on the Claimant’s credit file. The Defendant will seek to set off any sums found under the counterclaim herein against any sums that are found due to the Claimant. Defendant Counterclaim against Claimant and Third Party The Claimant and the Third Party were jointly and severally liable to Lloyds TSB Bank in respect of an overdrawn bank account The debt due from the Claimant and Third Party was assigned to the Defendant on 5th September 2005. Written notices of the assignment were sent to the Claimant on 7th September and to the Third Party on 20th October 2006. The amount due from the Claimant and Third Party which was the subject of the assignment was £1155.00. Neither the Claimant nor the third party has paid any part of the debt to the Defendant following the assignment. The Defendant claims interest at the rate of 8% per annum pursuant to section 69 of the County Courts Act 1984 from 5th September 2005 to the date hereof amounting to £108.35 and continuing at a daily rate of 25 pence per day until judgement or sooner payment. And the Defendant counterclaims; a. £1155.00 b. Interest thereon as particularised in paragraph 10 above to the date hereof of £108.35 c. Continuing interest at the rate of 25 pence per day

1st credit registered a default against my credit file, I sent a CCA request but they defaulted on my CCA request. I issued proceedings against them for £500 plus cost for damages and an order to to remove default. They denied ever receiving my CCA request and are counter claiming for the defaulted ammount. They have also included my spouse in their counterclaim, I would ideally like to increase my damages to about £2000 but had to limit the damages to £500 at the time of issuing the claim becuase I couldn't afford the court fee at the time; now that 1st direct had included my spouse in their counterclaim, can my wife counter claim for damages? Below is my defence to their counterclaim, comments and feedback will be higly appreciated. ===== Counter Claim Defence The Claimant made a request under section 77(1) and 78(1) of the consumer credit Act 1974 on the 30th August 2006. Please see appendix i for a copy of the original request. The request was sent Via Royal Mail 1st Class recorded delivery reference number DH 3174 5573 8GB. Please see appendix ii for a copy of the receipt The request was delivered to the claimant registered address on 1st October 2006 and signed for by one H. Louison. Please see appendix iii for a copy of proof of delivery. The claimant enclosed the statutory fee of £1 for the request under section 77 and 78 of the Consumer Credit Act 1974 by Postal Order which has since been cashed by the defendant. Please see appendix iv for the receipt of purchase of the postal order. The defendant was notified of its obligation under section S189 of the consumer Credit Act 1974 to supply a true copy of the alleged agreement referred to whether or not the defendant was the original creditor but had failed to supply these documents The claimant sent another request to the defendant on the 22nd September reminding the defendant of its obligation to supply the information required to substantiate the default registered against the claimant credit file. please see appendix v In the default entry against the claimant, the defendant registered creditor to be the defendant and the account type as “Hire Purchase”, however in the defendant’s defence and counterclaim, the account type is recorded as “Overdraft” on a bank account this is contradictory. Please see appendix v for a screen shot of the default registered against the claimant by the defendant. The defendant is to-date in breach of the section 77 and 78 of the CCA 1974. The defendant had failed to establish neither the presence of a “Hire Purchase” agreement nor a deed of assignment for the purported debt. The claimant has suffered and continues to suffer damages and distress as a result of the prejudicial information registered on the claimant credit file. The claimant booked an holiday to Tunisia with his family from 20th – 27th August 200 and applied for a new bank account with a £500 overdraft facility with First Direct, the intention was to spend the overdraft on holiday until the defendant’s salary is paid into the new account. The account was opened by First Direct on 14th August 2006 with the £500 overdraft facility. Please see appendix vi for a copy of the letter confirm that the account was opened. On the 17th August 2006 the claimant received a phone from First Direct Bank that the account opened three days earlier had been closed because of “adverse information” recorded on the claimant credit file by the defendant. Please see appendix vii for a copy of the statement confirming that the claimant account with First Direct has been closed. The claimant and his family proceeded on the holiday as planned without spending money, for this the claimant and his family suffered distress. The defendant had failed to establish the presence of a credit agreement to substantiate the default recorded in the claimant’s credit file, the information registered in the claimant’s credit file is contradictory and does not have the claimant’s consent to hold, process or share the claimants information with third parties, consequently the defendant is in breach of the Data Protection Act 1998 Section 14(1) and 14(2) of the Data Protection Act 1998 stipulates that the court can order the destruction of data held if proven to be inaccurate or unsubstantiated. The claimant denies that the defendant sent written notices of assignment of the purported debt on the 7th September 2005 and 20th October 2006. The claimant requests that the defendant provide true cetified copies of the notices. The claimant denies existence of any agreement with the defendant consequently the claimant denies liability for £1155.00 counterclaimed for by the defendant. The claimant believes that the facts stated in this defence are true.

Thanks Zoot for the link. Can I use my previous statement (counterclaim defence) as the new statement to include in the bundle? if not what do I need to write in my statement in addition to previous statement. Is their counterclaim valid since they haven't specified exactly how much they are counterclaiming for even though they've now paid the counterclaim court fee. I also have my SAR bundle from them which confirms that the arrear letters were auto generated.

my claim in coming up for hearing on the 15th December and the Judge had ordered as follows: "Each party must deliver to every other party and to the court office copies of all documents (including any expert's reports) on which they intend to rely at the hearing no later than 14 days before the hearing" "Signed statements setting out the evidence of all witnesses on whom each party intends to rely must be prepared and included in the documents referred to at paragraph 1 above. this included included the evidence of the parties themselves and any other witnesses" ===== I will be grateful for any advise on how best to prepare for the hearing

I was told the same thing by the court; apparently they've now paid the fee and my claim is coming up for hearing on the 15th December.

Thank you very much for your suggestions zoot

Fortunately I can still ammend my defence to their counterclaim, consequently I have added the following to my defence just to make sure that I have every angle covered, your suggestions will be highly appreciated. ---------------- In the event that the defendant is counterclaiming for actual costs resulting from the claimant contractual breaches and not litigation costs; then the claimant pleads as follows: [*] I. That the defendant discloses all the actions taken e.g. called claimant, sent a statement etc for each of the breaches in appendix i II. That the defendant discloses the actual costs incurred for each action taken as a result of the claimant breaches in appendix i III. That the defendant discloses how it arrives at those actual incurred costs. That this counterclaim for the actual costs is an abuse of court process because the claimant had repeatedly asked for the actual costs incurred as a result of the claimant breaches but the defendant failed to reveal the details of their penalty-charging regime; had these been revealed perhaps there wouldn’t have been a claim brought against the claimant in the first place consequently, the claimant would respectfully ask that the court in this case, not withstanding allocation to the small claims track, order standard disclosure. The claimant understands that it is in the courts discretion to do so. The claimant believes this would bring a rapid end to this litigation. In the defendant defence and counterclaim, the defendant argued (paragraph 9.1 of defence and counterclaim ) that account in arrears requires and are subject to greater scrutiny by the defendant’s employee and agents than account that paid up to date etc… Whilst this may be true the defendant had and his already paying for this service by way of higher interest rate which is currently at 0.75% above the defendant’s Standard variable rate equivalent of about £139 per month even though the claimant ‘s account has being paying up to date for the last 16 months. Furthermore the issue is only whether the money levied by the Defendant in respect of the claimant’s contractual breaches exceeds their actual costs incurred, if this so then it renders the “fee” a penalty which is unfair under common law. The claimant pleads that making the claimant pay for the same service twice by way of an interest rate currently at 0.75% above the defendant Standard variable rate and by way of a monthly fee is unfair and does not pass the “good faith” test under the Unfair Terms in Consumer Contracts Regulations 1999. The claimant in his original claim argues that the terms of the mortgage are unfair under the Unfair Terms in Consumer Contracts Regulations 1999, if this were to be so; the counterclaim is invalid as a consequent of relying on unfair terms consequently the entire mortgage terms become unenforceable.

@ essjaysea At first I thought they were counterclaiming for the actual costs resulting from my breaches however reading through the lines I realised they were counterclaiming for the costs of defending my claim. I am claiming £1000 plus interest their actual costs resulting from my breaches can't exceed what they've already charged me since the only thing they do is send me a monthly statement could that have cost more than the £50 they charged me per statement? ..."may exceed the disputed fees" suggest they are costs yet unknown which can only be costs of defending my claim. ===== "The Defendants puts the claimant on notice that the costs actually incurred, or the reasonable charge payable, may exceed the Disputed Fees, although they are not expected to be greater than £1500 in total."

@ SammyJammy Yes, that is exactly what they are saying; which was why I drew the court's attention to it in my defence and I will be reporting them to the law society as well. It is a scare tactic to force me to withdraw my claim (which in its self is unfair under the Unfair Terms in Consumer Contracts Regulations 1999).

Here is the relevant section of the counterclaim: SET-OFF IF RELEVANT TERMS ARE FOUND TO BE INVALID 16. Alternatively, if the relevant terms of the Mortgage Agreement that give rise to the right of the defendant to charge the disputed fees are invalid, whether by means of the common law penalty clauses jurisdiction, or under the Unfair Contract Terms Act 1977, or under the Unfair terms in consumer contract regulations 1999, or under the Supply of goods and services Act 1982, or otherwise, then the defendant is entitled to recover its costs under clause 10 of the Mortgage Condition 2000 (please see my defence for the relevant section referred to) or alternatively, the Defendant is entitled under section15 of the Supply of Goods and Services Act 1982 to a reasonable charge for the relevant Services. The Defendants puts the claimant on notice that the costs actually incurred, or the reasonable charge payable, may exceed the Disputed Fees, although they are not expected to be greater than £1500 in total.

These guys don’t get it; I have sued one of the mortgage companies in town for refund of unlawful charges and they have put in a counterclaim on the ground that if the court find their charges to be unlawful under the relevant Acts and regulations they would like to claim back their costs of defending my claim by way of counter claim, which will be in the region of what I am claiming. My defence to their counter claim is below; I will very much appreciate if anyone in the forum can suggest amendments to by defence of their counter claim. I will also be sending a letter to the Law Society reporting the company's legal team for intimidation and disingenuous interpretation of the Law. I am now more determined than ever to fight the case through to the end and I am beginning to look forward to my day in court. Your help will be highly appreciated. = = = = = = = = = The Mortgage Condition 2000 under which the defendant seeks to claim cost does not apply in this instance. I. Section 10 of the Mortgage Condition 2000 “Power to recover Costs and other expenditure” does not apply in this instance. The power to reclaim costs and expenditure in this clause specifically applies under three conditions none of which included “costs of defence” against litigation challenging the legality of the defendant’s regime of charges or the claimant exercising his right to challenge unfair terms in the contract. II. Clause (10 a) “administering the mortgage debt. This includes any costs and expenses incurred by the company as a result of the borrower not paying any money it owes to the company when the borrower is obliged to pay it;” This clause is invalid as a “defence” against litigation challenging the legality of the defendant’s regime of charges cannot be classified as “administering a mortgage debt account” it is in simple term “costs of defence” which can only be recovered through a court order. The attempt by defendant to classify “costs of defence” as “costs of administering mortgage debt account” is at best intimidatory and at worst disingenuous interpretation of the clause which in itself renders the clause and by implication the entire “Mortgage Condition 2000” unfair under the Unfair Terms in Consumer Contracts Regulations 1999 and therefore the contract unenforceable III. Clause (10 b) “making any successfully application for payment of a direct debit;…” This clause is invalid and can therefore not be relied upon as a basis for claiming cost by way of counterclaim. IV. Clause (10 m) “taking any reasonable action as a result of the borrower’s breach of these conditions;…” Since the two clauses in (10 a and b) of the Mortgage Condition 2000 are invalid, clause (10 m) is therefore by implication invalid, further more the issue before the court is not because of a breach on the part of the claimant but rather it is an issue of fact; the issue is only whether the money levied by the Defendant in respect of its customer’s contractual breaches exceeds their actual costs incurred. Therefore the defence and counterclaim action is not as a result of the claimant’s breach of the conditions of the contract rather it is as a result of the claimant exercising his right under the law to challenge the unfair terms in the mortgage contract – “Mortgage condition 2000” consequently the clause (10 m) in the defendant’s defence and counter claim is invalid. Section 15 of supply of Goods and services Act 1982 as quoted by the defendant does not apply in this instance as a “defence” against litigations by the claimant cannot be classified as service to the “plaintiff” consequently The Supply of Goods and Services Act 1982 is invalid. The claimant will particularly like to draw the court’s attention to the attempt by the defendant to interpret clause 10(a) of the Mortgage Condition 2000 to include “costs of defence” which is at best intimidatory and at worst disingenuous The claimant in his original claim argues that the terms of the mortgage is unfair under the Unfair Terms in Consumer Contracts Regulations 1999, if this is so; the counterclaim is invalid as a consequent of relying on unfair terms which is the main issue of this proceedings.

1st credit had defaulted on my CCA request can I send this letter to them as stage 2? ===== Dear Sir/Madam, I wrote to you on the 30 August 2006 about a "Default" notice your company placed against me. I requested you to substantiate this data by supplying the following as I have no recollection of ever receiving such a notice: 1. a true copy of the alleged agreement you refer to. 2. a signed, true and certified copy of the original default notice. I also reminded you of your obligation to supply these documents, whether you are the original creditor or not under S189 of the CCA 1974. You have now defaulted under the Consumer Credit Act of 1974 and must therefore demand that you remove all adverse information including the default placed on my credit file, failure to comply within the next 14 days will result in me reporting you to the appropriate authorities including the Information commissioner, trading standard and seek a court including claim for distress. Yours faithfully, Anonymous