Maroonfox5 V Mortgage Express*Lost in court*

[catherinebear]

Hi there

Just read your thread we are so sorry for you you have been incredible brave and if we can all be of any help perhaps everyone could donate something towards your costs, at least this would ease the burden for you. All the best.

Catherine and Dave

[Bona]

I Agree whydont you set up an account post details and leave it to people to help if they want we are all learning from other people cases so put up what happened when you get a chance and Im up for 50 pounds its not a lot but if it will help

[maroonfox5]

Thanks catherinebear and Bona for your support I don't know how to set up an account but I have a paypal account which I have used to buy things on ebay with.Will that work or is it not a safe way to do it?Can anyone advise.ThanksMF

[lizzie47]

My heart goes out to you......please put your paypal address on here for us all..or PM me it..i have a small amount in mine you can have...not much but am sure you will get more of the good folk on here and penalty charges has a link to you now so hopefully we all over there will try help you to....best wishes..Lizzie47.... :-(

[Pen]

Hi, just read your posts today, how devastated you and your family must be,I don't have a great deal but I would be only to happy to add to a pay pal account, we are all on here for help and advice and what has happened to you could happen to any of us who are going down the fast tract route I'm sure it has knocked the confidence right out of you, it has me.

Pen

[biffa1965]

i go along with that. Publish your paypal address maroon i havent got alot but i could spare a few quid

[fox]

maroonfox i am so sorry

 

I will also make a donation if you publish your paypal address - chin up mate x

[dolly]

me too - and morgy as well if you are reading this.

[paulpb123]

Same as above.

[maroonfox5]

Thanks everyone I'm overcome with your kind words and support .My pay pal address [email protected] thanksMF

[maroonfox5]

I just want to post the reason why I decided to go to court with all the risks involved.I found something on the OFT site that I thought would give me the edge on the day.It is in report 311 dated (2001)Analysis of unfair terms in schedule 2 of UTCCR 1999.This guidance STATES THE OFT's VIEWS ..........................................................................................Disguised penalties. Objections under the Regulations to an unfair financial penalty can apply to any term which requires excessive payment in the event of early termination, or for doing anything else that the supplier has an interest in deterring the consumer from doing.21 The Regulations are concerned with the intention and effects of terms, not just their mechanism. If a term has the effect of an unfair penalty, it will be regarded as such, and not as a ‘core term’. Thus a penalty cannot be made fair by transforming it into provision requiring payment of a fee for exercising a contractual option...........................................................................Ambiguity. Where a term is ambiguous, a court may be able to find at least one fair meaning in it, and enforce it on that basis, rather than declaring it unfair and void by reason of lack of clarity.However, the Directive makes clear that the ‘most favourable interpretation’ rule is intended to benefit consumers in private disputes, not to give suppliers a defence against regulatory action - see Regulation 7(2) (Annexe C). If a term’s ambiguity could cause detriment to consumers it may be challenged as unfair even if one of its possible meanings is fair................................................................................The concern of the Regulations is with the ‘object or effect’ of terms, not their form. A term that has the mechanism of a price term, or which purports to define what the consumer is buying, will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term. This particularly applies to termination charges that have the effect of unfair cancellation penalties - see paragraph 5.8.....................................................................................These three paragraphs I thought would win the case for me but the Judge seemed to feel that because I agreed to the contract and understood the terms re the ERC.Then the term was 'clear and intelligable' I tried and used section 5 ,and 7 of UTCCR 1999 to argue that the term was unfair but I obviously couldn't sway him enough.I also argued that the ERC term had been placed in the core terms to evade the UTCCR which I said was strange as it already appeared later on in the mortgage contract. Has anyone else seen and used these guidlines?.I've not seen them mentioned anywhere and I think Morgy needs to try to add them to her appeal if she hasn't already got them included.Speak more laterMF

[maroonfox5]

Sorry about the last post I typed it out lovely but its just listed as one long paragragh.is it the site?

................I've put some full stops in for ease of reading

[Pen]

Hi MF5. Glad you have posted your Pay pal address, as I said I am sure you will get the full support of site members , most of us could end up in your shoes. I have a claim going on in the fast track but somehow I thought there was a ceiling on the costs of £750 which the other party could claim if I lost hence I took the gamble. not to sure now though. Chin up, you will find a way to get through it, you have to,!! would you mind if I suggested you start another post as well as this only due to the fact that I read yours the other day by off chance otherwise I would know nothing about it and I sure there will be hundreds of members who are not searching for Mortgage redemption penalties who may miss it but would also help you if they knew. Just a thought

Pen

[martdj]

Sorry to hear the news. Was this the first claim by anyone against Mortgage Express??

[gizmo111]

Sorry to hear the news. Was this the first claim by anyone against Mortgage Express??

 

It was the first ERC - Nathal was successfull i nreclaiming his charges

[Longleigh10]

Oh God! i'm gutted for you.

[Guest Zooman]

I'll PM you my mobile number.

[DarcyCarter]

Im in a similar position with an ERC. I have looked into the law on this and think I have a pretty good argument that it's an unenforceable penalty (ie - becuause the charge is intended to compel continued performance, despite the fact it is not payable on breach). Do you know the legal reasons that the cases were lost? Was it all about UTCCR or was the common law, penalty point argued. If it was, and rejected by a judge, I might as well pack it in now!

[:Boy:]

Gutted for you, donation on the way, might not be much, but anything is better than nothing.

 

Best regards

[lizzie47]

It must be me...Is any one else gettin the "invalid E.mail address message" when they try send money..???..am not worls best pc user,but i tried 5 times now..

[Guest willowb]

did say that my intention was to be within the protection of the small claims when I made the claim and so not to be exposed to costs.I also said that both parties had requested for Small claims track in their AQ's.He replied then what on earth was this claim doing here?I said that it was Fast Tracked in November to which he replied, why didn't you oppose the order.I said that I was unaware that I had that right to do that.He said I should have read the order properly.I don't recall seeing anything about challenging the allocation decision on the order.Does anyone know if I can appeal the order with regard to costs, either on the allocation point or on the amount relative to the claim value?.

Have you had an answer to that yet MF?

I'm totally gutted for you.

 

Wxxx

Cobbetts have just sent me a copy of their AQ, they ticked small track....we'll see I suppose.

[fox]

Good luck with that MF - if Cobbets ticked small track then presumably they weren't expecting and did not claim costs - I hope you manage to get the costs cancelled mate I really do all the best x

[Guest Zooman]

I'm of the opinion that small claim court makes no difference to costs, if the they wish to enforce the indemnity clause, maybe you should seek the advice of a lawyer on this question alone if should cost no more then an hour just ring them and ask them to give you their opinion on costs within your contract (they would have to see the contract).

[Bona]

Most Mortgage deeds include a clause that you have to pay any reasonable cost in connection with your mortgage the word reasonable is the key you need to look at what your terms and conditions say. The district Judge can deem what is reasonable or costs if they are very high can beassessed we are going through the process at the moment of getting solicitors costs assessed because they are unreasonable you need to post what is exactley in your terms and conditions .When we made an application to have the costs assessed we asked the Judge about the mortgage costs ie penatly charges etc he wanted to add that the the order but the solicitors would play ball he made clear that we were entitled to know how they arrived at there charges we are just about to put in a further application if they do not agree to this assessment, I am hoping when this comes about it will give us a clear idea what we can claim for which is a penalty .

bona

[maroonfox5]

Hi everyoneThe Judge ordered costs to the winning party.I haven't had any advice on the costs issue yet.He trimmed down their total amount to cover up to the court date .Both of us did put down small track in the AQ's.............Zooman do you think I have a chance on appealing for the the costs ?...............I've just altered my paypal email address as I had left a space in it ...........Sorry ..............................................................I did have a second claim against B&B but I've had to withdraw it now............Its really gut wrenching because the second claim was from an earlier ERC charge and it was charged 4 years after the start of the morgage with less than a year to go......Also the contract wasn't worded the same .............in that redemption interest was paid in the early repayment period and it was not worded anywhere that I was ending it BY MY OWN CHOICE also it was not placed in the core terms section .Interestingly this mortgage was taken out in 1998 (mortgage conditions 1995)pre UTCCR1999 and my MExpress mortgage was taken out in 2003(mortgage conditions2000)SLY or What?.Thanks for all your continued support .I think I should speak to a solicitor about an appeal re costs................MF