Hi Zoot, Thanx... you are welcome to use any of the details. Some of it probably came via your help on other threads anyway! So I should be thanking you!! Alan.......

Just posted on my thread details of how it went at court and what details i used. Hope it is useful to you. Good Luck! Alan....

Hi Jamorgan, I have just posted on my thread a copy of my notes which I used at court! Hope you are feeling better about the whole situation! Alan.....

Thanks everyone for your comments. The following is a copy of my notes which I took to the hearing in anticipation of what would be brought up, I passed a copy onto the judge and to the barrister and solicitor and she read it rather than me having to go through all of the points. The barrister was busy scribbling on it, making notes, crossing out etc etc but the judge obviously thought that there was enought there to allow it to go to trial! All of the terms etc quoted were picked up from various parts of this site and just built into my situation. Court Hearing 19/01/07 Firstly can I state that I am not a lawyer and have not had the benefit of expert advice from a barrister. I brought this action after taking advice from the consumer action group who have an ongoing campaign against unfair bank and mortgage charges. Please do not try to confuse me with legal jargon! 1) Breach It is not disputed that I had a mortgage with the defendant The mortgage was for a term of 25 years; it was redeemed before 25 years and is therefore a breach of contract I accept the contention that redemption of the mortgage was provided for in the mortgage offer. The term provides that an early redemption charge was payable in the event of a redemption and thus represents a charge that is payable in the event of a breach of contract. The term merely anticipates a breach and does not represent the exercising of a right under the contract. A term imposing an ERC is merely stating what charge will be paid if you breach the term by ending early. A term which provides for a pre-determined fee in the event of a breach of contract must be a genuine pre-estimate of the losses incurred by the breach if it is to be deemed a lawful liquidated damages clause. If it is excessive it will be an unlawful penalty. Case law: Bridge –v- Campbell Discount Co Ltd Dunlop Pneumatic Tyre Co Ltd –v- New Garage Motor Co I redeemed this mortgage early on 02/06/05 and was charged £4253.09. If I had redeemed on 08/08/05 and had given 1 months notice then no charge would be payable therefore how can the actual costs have been £4253.09 for the sake of 2 months. Mortgage companies offer a reduced rate in order to attract custom which is a calculated commercial decision. The risk involved should not be passed onto the consumer as this would be unreasonable under s.4 UCTA 2) Mortgage details We sold our previous house to help us out of difficult financial circumstances. We had a poor credit file and the financial adviser only offered us one product from one lender (sub prime) The deal was for a variable rate mortgage at 4% above the Libor rate – this was discounted by 1.5% until 01/04/04 This reduced rate was still excessive but we did not have a choice. We redeemed the mortgage early as we still had not got out of our difficult financial circumstances and we needed to raise funds, furthermore we were in arrears with the mortgage as we couldn’t keep up to date with the payments after the discounted period ended and we were being pressured by the lender to clear the arrears, at this point they were threatening repossession proceedings. Our only available course of action was to re-mortgage! The rates charged were as follows: 6.75 6.62 6.25 6.12 6.25 6.5 6.75 Discount period ended 8.25 8.75 9.0 8.87 9.0 8.87 3) OFT The office of fair trading did a test case for excessive redemption fees and the research paper commissioned by them says: 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. Dr Skinner the researcher concluded that: Redemption charges other than a reasonable admin fee are not justifiable in the case of variable rate loans. Overhanging redemption charges – which continue to be levied after a fixed rate has ended, cannot be justified. 4) Successful claims Successful ERC claims have been made against the following companies: Halifax Mortgages GMAC Alliance & Leicester Birmingham Midshires Nat West Home Loans Leeds & Holbeck CHL Mortgage Express Northern Rock London Scottish Plus many claims are currently ongoing. All of the above companies used maximum delaying tactics and all settled prior to the court hearing rather than setting a precedent by unsuccessfully defending at court, thus incurring time and costs. 5) Counter claim for costs When this claim was started it was understood that as the claim was in the small claims court and was for less than £5000 then I would not be liable for the defendants’ legal costs in accordance with CPR 27.14 The defendant has indicated that their costs to date are £3091.80 and that I will be responsible for these. This is intimidatory and it appears to be aimed at pressuring me to withdraw the claim and is therefore in direct conflict with the civil procedure rules. Under the civil procedure rules I understand that the defendant cannot rely on a clause in a contract which is no longer in force. Clause 17.1 in the mortgage terms is an unfair term under s.4 of the unfair contracts terms act 1977. Such a term is unreasonable under s.11 of the act as even if my claim is successful the term would effectively deprive me of a remedy and indeed could leave me open to pay further costs. 6) Summary To summarise: I have a valid claim, I followed procedure and won judgement by default as neither the defendant or their solicitors responded within the given time frame. I do not feel that the defendant does have grounds for the judgement to be set aside or struck out. If the court decides for the judgement to be set aside then the case should go to trial as I have a real prospect of being successful in this case. The defendant should be responsible for their own costs as indicated above. Hopefully this is of some use to any of you out there who are in similar circumstances but perhaps Zoot or someone with more knowledge than me can check it over before anyone uses any of the details. Cheers......Alan:)

dont know why ther is a smiley in above I am trying to type 1938

Oops that should be: Associated Distributors Lts -v- Hall (1938 ) 2KB.83 Also just noticed in doc's it says something about: see chitty on contracts, 29th edition 2004, 26-109 As you can imagine is was all a bit baffling for me. Alan....

Hi Zoot, Platform had not logged their defence and counterclaim as such ( I assume awaiting the decision of the hearing) so the judge gave them 14 days to do so then she said the allocation questionairre would be issued to me so I suspect it will be fast track. Case law quoted re various points: Euro London Apartments ltd -v- Claessens International ltd (2006) EWCA Civ 385 Associated Distributors Ltd -v- Hall (1938 ) 2 KB. 83 Export Credits Guarantee Department -v- Universal Oil Products Co (1983) 1 WLR 399 UCTA 1977 1999 regs Hope these details help!! Alan.....

Also just remembered they argued that the part of my original claim in respect of the unfair contract terms was irrelevant in this case and quoted case law in this respect. The judge agreed and noted that this should be struck out of my claim!!! I do have all of the case law which they quoted but its a bit like reading a dictionary! Alan...

I had a similar situation.... check my thread (platform defending or are they) Alan......

Hello everyone, sorry for the delay posting.....went straight out after work last night so didn,t get chance until now. Thanx for all of the kind messages! Just as a reminder yesterdays hearing was because I obtained judgement by default over platform and they later issued a defence and counterclaim. There were 3 issues which were being contested which were: 1) platform asked for the judgement to be set aside 2) platform asked for the claim to be struck out as it had no merit etc etc 3) platform were counter claiming for all of their costs because of a clause in the mortgage agreement (costs so far £3k plus!!) Well I turned up at court with my lovely wife holding my hand to stop me shaking! Platforms solicitor turned up at court with his barrister holding his hand!! In the waiting room the barrister passed me a copy of their documents which they were using including all of the case law which they would be quoting (similar to yellow pages!) We were ushered into a chamber with a nice lady judge who listened intently whilst the barrister rabbited on for half an hour, it was then my opportunity to respond...obviously I could not compete against a barrister in terms of technical knowledge and similary I didnt have the courtroom patter but I had typed up 4 pages of answers to various points which I suspected would be brought up. Yes I know you want to know the outcome.... well point 1) the judgement was set aside (instantly) by the judge point 2) the claim was not struck out and was allowed to go to trial. (much to the disappointment of their barrister) point 3) the issue of costs was deferred to the trial judge however I would be responsible for their costs for the hearing as apparently it was my fault as I could have agreed to the judgement being set aside without a hearing at an earlier opportunity (so thats gonna sting a bit) Basically the judge agreed that they had case law to back up their claim, however it was old and not necessarily relevant to these issues but i had made her aware off successful claims (although out of court) and of the OFT test case etc so she thought that I should be given an opportunity to pursue my claim, however she recommended that I have legal representation at trial. The barrister was a bit annoyed as he obviously thought it would be a formality so he asked for permission to appeal against the decision not to strike the claim out. At this point I think the judge was fed up of hearing is voice so she cut him off but agreed that he could appeal if he wished) We then left, they skulked off and we went out for lunch! So what does anyone think... good or bad??? Alan......

Cheers, best do some homework on it now and hope that I get a sympathetic judge! or could pray that the bad weather floods the court or stops drydens getting to court!!! Ha ha...

Thanx, Don't feel confident though after reading jamorgans thread! Alan....

Hi Jamorgan. Sorry to hear your bad news!!!! Also worried as I am due in court tomorrow in a similar claim against Platform, but guess what.... their solicitors are Drydens, It is Simon Plunkett dealing with it and they too have employed the services of a barrister.... their costs so far are £3091.80. Hope everything works out for you!!! Alan......

Wish me Luck...... I'm in court tomorrow am.

Thanx Zoot, Bit scarey having to go to court! Will keep you informed. Alan...

Any thoughts anyone Court hearing imminent! Alan........................

Hi Zootscoot, I actually sent a letter to the court and requested that correct procedure is followed and stated that Dyrdens should not be looking to cut corners by asking for the judgement to be set aside without a hearing. The court accepted my point and therefore issued a date for the hearing. In my particulars of claim on MCOL i put a variation of different text which I had picked up from yours and others earlier threads as follows: Particulars of Claim The claimant held a joint mortgage account No. XXXXXX from 16/08/02 until settlement on 02/06/05. On 02/06/05 an early redemption penalty charge was added to the account prior to settlement in respect of the claimant terminating the contract before the agreed period. This charge was a disproportionate penalty and is therefore unenforceable at common law as established in Dunlop Pneumatic Tyre Co Ltd -v- New Garage and Motor Co Ltd (1915) AC79. Further as a disproportionate penalty it is invalid under the unfair(contracts) terms act 1977 s4 and under the unfair terms in consumer contracts regulations 1999 para 8 sch 2(1)e The defendant has been unable to justify their charge, therefore the claimant claims from the defendant a sum equivalent to the unlawful charge, being £4253.09. The claimant further claims interest pursuant to s69 of the county courts act 1984 at the rate of 8% pa, being the sum of £478.13 Thanx, Alan.............

Thanx for your response, I have had a look at Jamorgans lengthy thread. I think my case is slightly different in that I obtained judgement by default and the court hearing at this stage is because drydens appliaed to have the judgement set aside. The only details that I have is the court form N244a Notice of hearing of application. All it says is: The hearing of the defendant's application to set aside judgement & to strike out claim and request summary judgement to be entered against claimant will take place at 10.20 on the 19 January 2007 at Sheffield County Court. Attached to it are 2 x forms N244/1 application notice. The first one states that drydens intend to apply for an order for the judgement to be set aside pursuant to cpr 13.3(1)(A) and further enforcement of the order to be stayed. The second one states that drydens intend to apply for an order that the claim be struck out and/ or there be summary judgement against the claimant in accordance with CPR 24 and order for costs and interest against the claimant in favour of the defendant, Because the claim holds no reasonable grounds etc etc etc I do not have anything else other than this! do I need to be doing anything or do I just turn up at court on the 19th Any advice please? Thanks.....Alan

Only mee, Further progress in this case: Drydens applied to the court to have the judgement set aside and to strike out the claim, without the need for a hearing. I contested this and the court have now set a date for 19th Jan. If I understand this correctly this is just a hearing for the defendant to apply to have the judgement set aside. Has anyone any experience of these cases?, is the defendant likely to turn up? what is likely to happen? will I have to stand up and present my case? I am a bit confused, any help or advice would be much appreciated. Thanks......Alan

Thanks, Alan from derby for anyone who is interested, the basic facts so far are: Initial request for repayment 25/09/06 L.B.A. sent 09/10/06 Bogoff reply 17/10/06 MCOL 27/10/06 Deemed Served 01/11/06 No response! MCOL judgement entered 20/11/06 in default!! letter from Drydens with copy defense 23/11/06 Alan.....

Thanks Alan, that's a great help, do you think that I need to now wait for the court to contact me or do I contact the court first or just respond to drydens with zoots letter? I'm a bit puzzled Alan....

Only mee again! Is anyone out there? Don't tell me you are all watching X Factor. Just wondered if anyone else new the judgement date rules quoted by Ellilou earlier in this thread. Also does anyone know what CPR 13.3 is? Alan.....

Hi Jamorgan, Any progress? I too have had similar letter from Drydens regarding my claim against Platform. just wondered if any resonse received yet? Alan....

Thanks Zootscoot, Had a quick scan at Jamorgans thread, her letter etc was also from drydens and is almost identical to mine so I will use details from it...thanks. Any comments regarding Ellilou's response above re dates etc? Alan...

Thanks for your tips, I will check "these guys don't get" it thread Any other ideas anyone?