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Mortgage penalty charges - HELP


thesergeant
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All,

 

I am in this section because the Mortgage forum has gone quiet!

 

I have begun a claim against Woolsnitch. AQs have been served, however Woolsnitch have thrown in a draft order for strike out on the basis of S5 Limitation - which they say is 6 years.

 

In my POC I have stated

 

Limitation

9. The Claimant contends that the various penalty charges applied to the account were capitalised and that as such the relevant period for this claim is twelve years.

 

 

10. Alternatively if it is decided that the charges were not capitalised then the Claimant seeks permission to proceed with the claim under s.32 (1)(b) Limitation Act 1980 on the ground that the Claimant could not reasonably have discovered the Defendant's deliberate concealment of the facts relevant to the Claimant's right of action before the report of the OFT was published on 5th April 2006.

 

The facts relevant to the Claimant's right of action are that the Defendant is unjustly enriched by exercising the contractual terms in respect of default charges with a view to profit. If the Defendant has elected to present its charges as if they were a legitimate loss or cost, whilst it is in actual fact profiting in a material sense from the charges, the Defendant can be seen to have been operating without accountability to its customers; and to have consciously concealed the facts. The Defendant is clearly in a privileged position to have a direct means of withdrawing monies from the Claimant's bank account. The Claimant is entitled to know whether the charges paid represent a justifiable business cost, or whether they are in fact a penalty, and to expect that the Defendant will always conduct itself with integrity.

 

11. Alternatively, the Claimant seeks permission to proceed with the claim under s.32 (1)© Limitation Act 1980, on the ground that the payments were conceded on the mistaken presumption that the said charges and interest thereon did not amount to penalties - Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 - and that the Claimant would not reasonably have discovered the said mistakes before the report of the OFT was published on 5th April 2006.

 

 

Would the Judge have considered this before putting the judgement out?

 

I have seven days to respond.

 

I URGENTLY need some considered thoughts to assist me. :confused:

There is no such thing as impossible; only the degree of difficulty required to achieve the desired outcome.

Read through the

FAQ Section.... Use these links :grin:

 

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My advice & opinions are offered informally, without prejudice & without liability. Please use your own judgment.

Halicrap - Full settlement 12/06 £408.34

Crapitol 1 - Settled in Full 27/04/07 £15808-)

All & Pester - Claim served £5695 4/09, Stayed

Woolsnitch mortgage accounts - Claim served £2995 4/09, application to strike out 06/09

Lloybles - No CCA, CPR disclosure notices served.

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Bump - Help !

There is no such thing as impossible; only the degree of difficulty required to achieve the desired outcome.

Read through the

FAQ Section.... Use these links :grin:

 

Like what I say show - add to my reputation (click the scales!)

My advice & opinions are offered informally, without prejudice & without liability. Please use your own judgment.

Halicrap - Full settlement 12/06 £408.34

Crapitol 1 - Settled in Full 27/04/07 £15808-)

All & Pester - Claim served £5695 4/09, Stayed

Woolsnitch mortgage accounts - Claim served £2995 4/09, application to strike out 06/09

Lloybles - No CCA, CPR disclosure notices served.

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Hi Sergeant,

 

Thanks for your PM - I'm afraid I don't have any knowledge of this area, sorry!

 

I think the best thing you can do is click on the red triangle (in the bottom left hand corner of your post) to notify the site team, I'm sure they will be able to offer some assistance. Best of luck.:)

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