GE Money waiting for a court date

[df1970]

Hi, I have had my claim form accepted and the GE Money have acknowledged the claim. I am waiting for a copy of their defense and a court date.

 

The claim is for arrears admin fees and bounced cheque fees.

 

Do I use the standard court bundle used for bank charges?

 

Cheers...

[mrsfoot]

If this is for a mortgage (which I am presuming it is) then you need to use the bundle found in the stickies at the top of the mortgage page. There are different cases to a bank charges claim.

 

It would be a good idea to have a read over the cases so you are versed on them, but chances are it wont end up in court as they may pay out before the hearing.

[jaxads]

Any update ???

[df1970]

Hi, this has been progressing well until I got my post yesterday.

 

Story so far:

 

Had a mortgage with Igroup. Was charged £2000 in fees for failed direct debits etc.

 

SAR, Prelim, LBA and finally claim form submitted.

 

I received the standard defence about 2 weeks after submitting my claim.

 

As I was about to file my Allocation form, I recieved a copy of their allocation form along with a request for a summary judgement.

 

Here's where I need help.

 

1. My claim was against GE Money Servicing Ltd (Formerly Igroup Mortgages Ltd). The request for summary judgement states the defendant is a seperate legal entity and that the defendant should be GE Money Mortgages Ltd. Therefore I have made a claim against the wrong GE company. Can I change my POC at this late stage? Eversheds are asking for my claim to be struck out on this basis. Help!!!

 

I guess that's the first problem I need to sort out and if I can successfully change the defendants name, here are the other points they are using to have the claim struck out.

 

2. They claim that I "unequivocally redeemed the loan and settled gthe account in 2005" They then go on to say that I, by virtue of these facts, bound by the settlement of the account and I am estopped from bringing the claim. ?? Any ideas? Why are they trying to use estopple in this instance?

 

3. Part of my claim dates back to beyond 6 years - about £500 of the £2000 I am claiming. I would like to argue this point in court as I believe the true facts have been concealed and therefore the statute of limitations does not apply. Can I at this late stage amend my POC to include the reasons why I believe this to be so?

 

4. I am relying on the unfair contract terms act 1977 in my claim. The defendant wants my claim struck out on the basis they they believe "it is self evident the conditions of the act do not apply" and "are of no relevance" Should this not be discussed at a hearing?

 

Finally, they want me to pay thier costs. Is this possible with a small claim?

 

Your help would be very much appreicated.

 

Damon30.

[df1970]

I forgot to add, there is a fifth reason why they are requesting a summary judgement to have my claim struck out.

 

Part of my claim is for Redemption Administration Fee.

 

I have made a mistate here and should not have claimed it. I'm happy to take it off the amount claimed but how do I do that?

[df1970]

Also, I was about to send my allocation form along with the following draft:

 

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.

[steven4064]

Hi damon

 

1. Why did you name GE Money Servicing Ltd (Formerly Igroup Mortgages Ltd). rather than GE Money Mortgages Ltd? Do you have correspondnce, etc from them?

 

I think you should ring the court and ask them what to do about the name on the claim. I think it is sefl-evident that both are owned by GE Money.

 

2. THere has never been a problem claiming on a closed accounts (my own claim against GE Money was ona closed account). A redeemed mortgage is only a special case of a closed account. Estoppel is irrelevant (IMHO)

 

3. I agree entirely. IMO there is no problem claiming charges over 6 years old on the basis of s32 of the Limitations Act 1980.

 

4. I'm not sure about this. We always used to put UCTA1977. Did you also quote UTCCR1999?

 

5. As you say, you can drop it in negotiations with them.

 

A lot of this is bluster (they will huff an dthey will puff ......). Send the AQ with the draft order (after sorting the name issue) and they will cave in.

 

On costs. they can only claim them in the Small Claims Track if they can convince the judge you have abused process or the litigation is vexatious. Not a chance of either IMHO.

[Goldlady]

Hi Damon, I am claiming against them also - have had an offer of £1K from Eversheds and told them I want the lot.

 

My thread is here;

 

http://www.consumeractiongroup.co.uk/forum/other-institutions/114750-ge-money-can-we.html

 

I didn't claim my ERC as I was strongly advised not to. I wonder if you could revise your claim to remove it - how much was it by the way?

 

Best of luck

[df1970]

Hi,

 

I had some old letters from GE Servicing who administer the account but it has become clear that GE Money Mortgages are the account owners. I will call the court.

 

If I can get the name changed I'm wonderng if I should send the allocation questionaire with the draft order as well as a letter responding to the points raised in the summary judgement?

 

Damon.

[Goldlady]

I would cover all bases on the name front. I filled in three separate claims, one for each entity, and have had three sets of acknowledgements. See what the court can do at this stage.

[steven4064]

As Goldlady says.

 

Don't bother with a letter responding to their points. If it gets past allocation, you will have to prepare a court bundle with a statement of case - that's the place to respond.

[df1970]

OK, I have sent my allocation questionaire along with a draft order as per my post No 6. I also included a detailed letter expalining how this company uses lots of different names and it is hard to know who to make a claim against. I stated that I would be happy to amend my claim if necessary.

 

About 3 days later, I recieved an allocation hearing date.

 

I will be there.

 

Any idea if GE settle before allocation hearings?

[Goldlady]

Hi Damon, I have had two offers from GE already - one for £1000 and one for £1500 - my total claim is £2000 - the first offer was within a week of me issuing the claim. So I suggest the answer to your question is yes.

[jaxads]

Watching with interest, good luck Damon and Goldlady -- I'm going after this lot next - when I get my other claims sorted!!!

[df1970]

Probably a silly question - should I attend the allocation hearing?

[Goldlady]

I suspect you should attend it Damon - don't let them get away with a thing.... I need to call them tomorrow as my AQ is due and they are pressurising me to accept their offer of 75%. I am going to sleep on it:D

[df1970]

Hi, not good news - attended what I thought was an allocation hearing yesterday and it turns out it was a summary judgement hearing - my fault for not realising.

 

The judge was helpful though - although he didn't give advice as I guess he is not in a position to do so.

 

The result is that I lost and they won an order for costs of £1080 !!!!

 

I'm thinking there is a solution but here's what happened first:

 

Their request for judgement to have my claim struck out was based on the following 5 points:

 

1. I had sued the wrong legal entity.

2. Estoppel - the account is closed and cannot be re-opened or claimed against.

3. Part of my claim is time barred (about £100 of the total)

4. I used UTTCR 1997 in my POC and I think this was wrong - there was arguement around this but I didn't have a clue how to respond.

5. I had also included redemption in my claim of £200 and it was argued that this was a contrctual provision.

 

Anyway - here are my thoughts point by point:

 

1. I argued that I had letters from GE where 4 different companies we shown on the paperwork - so how was I supposed to know who to sue. I suggested in a letter to the court prior to the hearing that I would be happy to amend the POC if necessary. In summing up, the Judge made a big point about this being a claim against the wrong legal entity and reading between the lines I think he was saying that I was going to lose but I could submit a new claim against the right company. ????? Is this possible?

 

2. This was the main point. About 10 minutes before the hearing, the duty solicitor gave me a piece of paper from a law book setting out the Estoppel arguement. The main thrust was that there is no question of fraud or error in my claim therefore the account cannot be reopened. The judge agreed with this. The solicitor had a photocopy of some text from "Fisher and Lightwoods Law of Mortgage"

 

3. Time barred. As it was not going too well at this point and the fact that it was only £100 I conceeded and agreed to the time barred point.

 

4. UTCCR 1997. I said that I was expecting the matter to go to trial and I would then produce a court bundle support my point here. The judge seemed to think the section I was referring to was in regard to breech of contract on the part of the mortgage company. He said your POC is not based on breech of contract on the part of the mortgage company. I think I should have used UTTCR 1999?

 

5. Redemption. I agreed that this was not to be included in my claim and had a revised list of charges excluding the redemption penalty.

 

So, my claim was struck out and the defendants were awarded £1080 costs.

 

Here are my questions:

 

A. Can I sumbit a new claim against the correct legal entity? Can I be stopped as I have argued previously that in my view the GE companies are one and the same? Can I be stopped as the basis that any new claim will be same arguement from my side?

 

B. How can I argue against the Estoppel issue? The arguement they used is based on the following text from their witness statement:

 

"The claimants unequivocally redeemed the loan and settled the account on the xyz. GE released its legal charge against the peoperty as a consequence.

 

If in the alternative to the contentions set out in paragraph 2, the defendant is found to have any liability under the agreement, or for the account, it is respectfully submitted that the claimants are by virtue of the facts set out in the paragraph above, bound by the settlement of the account and estopped from bringing the claim."

 

What does it mean that we "unequivocally redeemed the loan"?

 

Damon30

[Penfold92]

Hi Damon,

 

I am really sorry this has gone this way, but I am truely surprised...Firstly, as this is the thing that will hurt you most, how did the Judge or Defence come up with £1080 in court costs in a small claims court? A breakdown would be nice.

 

With regards Estoppel, that is a new one on me and unless these guys are getting clever, i think you have been stumped by a sly one here. The question of the claim should have been regarding unfair penalty charges and therefore should not come under that, after all are they still processing your data? If so they are still using your authority in th eoriginal agreement and so they can use it to suit and not when it doesn't...

 

Ok here is a definition of it:

(1) A legal principle that prevents a person from asserting or denying something in court that contradicts what has already been established as the truth.

equitable estoppel

A type of estoppel that bars a person from adopting a position in court that contradicts his or her past statements or actions when that contradictory stance would be unfair to another person who relied on the original position. For example, if a landlord agrees to allow a tenant to pay the rent ten days late for six months, it would be unfair to allow the landlord to bring a court action in the fourth month to evict the tenant for being a week late with the rent. The landlord would be estopped from asserting his right to evict the tenant for late payment of rent. Also known as estoppel in pais.

 

Now I do not see what they tried to say? Are they saying you could have queried this earlier? But surely you argued that had you know their charges were unfair you would have? Someone else please explain this to me as I can't get my head round it.

 

Perhalps Zoot or one of the Mods will have an answer to this...and where you can go from this. As to action against the correct people I can't see why not, however, be aware that they have used the Estoppel once and may try their luck once more...

 

Penfold

[steven4064]

Hi guys

 

The definition of estoppel is as Penfold says - A legal principle that prevents a person from asserting or denying something in court that contradicts what has already been established as the truth.

 

I think in this case it is related to damon's question - What does it mean that we "unequivocally redeemed the loan"?

 

The mortgage has been paid off (as I understand) - it has been redeemed, and there is no question about it - its redemption is unequivocal. Therefore, the fact that it has been redeemed has been established as the truth.

 

They are arguing that the claim for charges is a denial of this established position (that the mortgage has been redeemed) and the claim is therefore prevented by the principle of estoppel.

 

I guess this is how they must have argued it - I missed this interpretation. In bank charges claims it has certainly been argued that estoppel is not relevant but, as the judge said, this isn't a bank charges claim.

[df1970]

I left my file at work so when I get back tomorrow I will type up some of the information they relied on for the Estoppel arguement.

 

I recall the judge saying that perhaps I was getting confused with the bank charges case. He said that the mortgage was an loan agreement for a term - the term ended and the matter closed when I settled the account. Whether I paid late or not is now irrelevant.

 

I tried to explain that I settled the acccount before I realised that the charges were penalties but I didnt get anywhere.

 

I'm minded to claim again against the correct legal entity and address the estoppel issue in a new POC (If I can find an arguement).

 

If I then get to the "summary judgement" stage again with the defendant prior to allocation I guess I can discontinue the claim??

 

I'm already £1080 down and may as well have another go for the sake of £108 fee.

 

In regard to costs, the duty solicitor arrived with a statement showing legal costs incurred by the defendant which included £500 for attendance at court yesterday and £135 per hour preparing witness statement etc. The judge told me that I should have seen these costs 24 hours prior to the hearing. Im not sure if it would have made a difference but I didnt expect to walk away with another debt.

 

Damon30.

[steven4064]

Damon

 

The problem with this course of action is that it could be construed as vexatious litigation and you could have a wasted costs order given against you even if you drop the case before court. It's what we have been doing to the banks who settle before court but after all the case has been submitted.

 

It would be interesting to know how many of the 5 points (post #17) the judge actually agreed with or whether he just dismissed the case because it was the wrong legal entity - as you said, he made a lot of that and it would be enough for him to not have to consider anything else.

 

Coming back to estoppel for a minute.n You said (in post #17) "the duty solicitor gave me a piece of paper from a law book setting out the Estoppel arguement. The main thrust was that there is no question of fraud or error in my claim therfore the account cannot be reopened". What the solicitor said is not correct - there is a question of error in your claim - your error in believing the charges to be lawful. And that error also deals with the issue of charges older than 6 years (s32 of the Limitations Act 1980). Was this discussed in court or only in the corridor outside?

[df1970]

perhaps I'll see what the text of the judgement is before deciding what to do next.

 

Tomorrow I'll post a detailed account including the witness statement so that it can help others that may find themselves in this situation in the future.

 

Damon30

[steven4064]

perhaps I'll see what the text of the judgement is before deciding what to do next.

I think that's a wise move.

[caro]

Sorry to hear about this Damon. I don't really think I can add anything other than to agree with what others have said.

 

I suggest you take a bit of time before deciding how to proceed, and consider whether the stress of another case is worth the possible financial gain - or loss.

[Penfold92]

I still can't believe you have to pay £1080 in a small claims case....Again preparation is everything in these cases and had you seen this perhaps you could have argued the point a little:

 

Costs on the small claims track

 

 

 

 

27.14

 

 

(1)

This rule applies to any case which has been allocated to the small claims track unless paragraph (5) applies.

 

(Rules 44.9 and 44.11 make provision in relation to orders for costs made before a claim has been allocated to the small claims track)

 

(2)

The court may not order a party to pay a sum to another party in respect of that other party's costs, fees and expenses, including those relating to an appeal, except –

(a)

the fixed costs attributable to issuing the claim which –

(i)

are payable under Part 45; or

 

(ii)

would be payable under Part 45 if that Part applied to the claim;

 

 

(b)

in proceedings which included a claim for an injunction or an order for specific performance a sum not exceeding the amount specified in the relevant practice direction for legal advice and assistance relating to that claim;

 

©

any court fees paid by that other party;

 

(d)

expenses which a party or witness has reasonably incurred in travelling to and from a hearing or in staying away from home for the purposes of attending a hearing;

 

(e)

a sum not exceeding the amount specified in the relevant practice direction for any loss of earnings or loss of leave by a party or witness due to attending a hearing or to staying away from home for the purposes of attending a hearing;

 

(f)

a sum not exceeding the amount specified in the relevant practice direction for an expert's fees; and

 

(g)

such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably.

 

 

(3)

A party's rejection of an offer in settlement will not of itself constitute unreasonable behaviour under paragraph (2)(g) but the court may take it into consideration when it is applying the unreasonableness test.

 

(4)

The limits on costs imposed by this rule also apply to any fee or reward for acting on behalf of a party to the proceedings charged by a person exercising a right of audience by virtue of an order under section 11 of the Courts and Legal Services Act 1990(1) (a lay representative).

(5)

Where –

(a)

the financial value of a claim exceeds the limit for the small claims track; but

 

(b)

the claim has been allocated to the small claims track in accordance with rule 26.7(3),

 

the small claims track costs provisions will apply unless the parties agree that the fast track costs provisions are to apply.

 

(6)

Where the parties agree that the fast track costs provisions are to apply, the claim and any appeal will be treated for the purposes of costs as if it were proceeding on the fast track except that trial costs will be in the discretion of the court and will not exceed the amount set out for the value of claim in rule 46.2 (amount of fast track trial costs).

 

 

OK now for Part 45:

 

Amount of fixed commencement costs in a claim for the recovery of money or goods

 

 

 

45.2

 

 

(1)

The amount of fixed commencement costs in a claim to which rule 45.1(2)(a) or (b) applies –

(a)

shall be calculated by reference to Table 1; and

 

(b)

the amount claimed, or the value of the goods claimed if specified, in the claim form is to be used for determining the band in Table 1 that applies to the claim.

 

 

(2)

The amounts shown in Table 4 are to be allowed in addition, if applicable.

 

TABLE 1

 

Fixed costs on commencement of a claim for the recovery of money or goods

Relevant band

Where the claim form is served by the court or by any method other than personal service by the claimant

Where –

 

the claim form is served personally by the claimant; and

 

there is only one defendant

 

Where there is more than one defendant, for each additional defendant personally served at separate addresses by the claimant

Where –

 

the value of the claim exceeds £25 but does not exceed £500

 

£50

£60

£15

Where –

 

the value of the claim exceeds £500 but does not exceed £1,000

 

£70

£80

£15

Where –

 

the value of the claim exceeds £1,000 but does not exceed £5,000; or

 

the only claim is for delivery of goods and no value is specified or stated on the claim form

 

£80

£90

£15

Where –

 

the value of the claim exceeds £5,000

 

£100

£110

£15

TABLE 2

 

Fixed costs on commencement of a claim for the recovery of land or a demotion claim

Where the claim form is served by the court or by any method other than personal service by the claimant

Where –

 

the claim form is served personally by the claimant; and

 

there is only one defendant

 

Where there is more than one defendant, for each additional defendant personally served at separate addresses by the claimant

£69.50

£77.00

£15.00

 

 

 

Miscellaneous fixed costs

 

 

 

 

45.5

 

 

Table 4 shows the amount to be allowed in respect of solicitor's charges in the circumstances mentioned.

TABLE 4

 

Miscellaneous Fixed Costs

For service by a party of any document required to be served personally including preparing and copying a certificate of service for each individual served

£15.00

Where service by an alternative method is permitted by an order under rule 6.8 for each individual served

£53.25

Where a document is served out of the jurisdiction –

 

(a) in Scotland, Northern Ireland, the Isle of Man or the Channel Islands;

£68.25

(b) in any other place

£77.00

 

Nasty West are trying to say they will claim over £3000 against me when we meet (if we meet) in June. I am looking forward to it...

 

Does anyone know if Damon can write tot the cost and try to reduce the money due by querying the amount stated using the above info?

 

Penfold