Harsh Letter received from Kensington *Claim struck out in court*

[zootscoot]

Hi Morgy,

 

Yes the directions and defence to stike out & counter claim need to go off today.

 

Have you added the defence to counter claim it will be slightly different to the previous one.

 

Basically they are entitled to counter claim for actual costs reasonably (subject to the duty to mitigate) and you must state that you put them to strict proof of these. Ie they would have to itemise each cost and prove each one.

 

Also as this is fast track they are only entitled to their legal costs if they win.

 

Best of luck

 

Zoot

[jamorgan]

Sorry Zoot,

Do you mean you adjusted the defence above and that is the one to send today, also

would you be able to help me word a little extra text (the part in red above) as to why we ended the mortgage term earlier

 

sorry to be such a pain all the time i just don't want to mess up in any way

Morgy x x

[zootscoot]

Sorry I'm at work at the moment if you put something together and post it on here I'll have a look if I get the chance.

 

All the best

 

Zoot

[jamorgan]

Sorry Hun,

 

Will Take All Doc's Down Tommorrow To The Courts But Before I do Just need Another recap

 

When entering total Costs In Para 9 Of Defence, Can I Add Brokers Fees As Well. This is a break down of the costs:

 

Arr Fee 395.00

Application Fee £295.00

Brokers Fee £1170.00 (670.00 Paid Up Front Balance To Be Added to Advance £800.00)

Total costs £1865.00

 

£395.00 Would Be Refunded On Completion

So

 

Purchase Price £132,000.00

Brokers Fees (balance to be added to loan) £ 800.00

Deposit Paid £14,000.00

 

Total of loan amount should have been £118,800.00

But

 

Toatal Of Advance Was £119,195.00

So They Have Added The Arr Fee On To The Loan, But this was Ok because on completion this amount would be refunded.

 

Could You have a look at the Email I shall send you, they have added the arr fee again and only refunded it once.

Shouldn't have paid it at All

X

[zootscoot]

You can not claim back brokers fees.

 

Are you saying you paid the arrangement fee up front as well as it being added to the loan? I can only see one debit on the email.

[jamorgan]

I was only putting in the total amount above (for the defence) as to how much it cost to get the mortgage, so shall I take that amount out.

 

With regards to the app fee of £395.00 no I didn't pay up front for this, they have added it to to the advance but also added it again on the quartly statement and only refunded it once.

Do you see what I mean. My mortgage should have only been for the following

132000.00

-14000.00

+800.00

toatal 118,800.00 not 119195.00

 

Could you also have a look at the defece above that you posted i have added some text to para 21 (after the claimant.............)

not sure wether it's ok

thanks Zoot

x

[jamorgan]

Zootscoot,

I've sent you an e-mail

x

[Sue_de_Nimm]

Jamorgan, is it over???

[jamorgan]

No, but I wish it was.

 

Iv'e never been so stressed out in all my life, been on the sick all week with flu,printer packed up on me in the week and to top it all off all my Doc's had to go off today and i am missing my redemption statement,

bloody marvolous isn't it.

 

Anyway

 

Witness statement and supporting doc's relating to past cases sent today to there solicitor and sent special delivery and after my coffee I shall be driving down to court to hand there's in the post box.

x

[zootscoot]

Wahey!

 

You can relax now ... for a week!

 

Best of luck

 

Zoot

[jamorgan]

I found the bit on the forum about the questions asked in the house of commons regarding Kensington and I sent it along with the supporting doc's yesterday.

was this ok ?

and I did not end up sending statements as printer and coppier messed up is this ok too, can I either take them with me next week or send them in if and when there's a court hearing ?

 

Thanks again Zoot I have been a pain in the arse havn't I x x

Just need to put my mind at rest

x

[zootscoot]

Best to phone the court and ask permission to add these items. They will probably need to be done as soon as possible. Your statements are your key evidence don't forget, without those you have no case!

[jamorgan]

Rang court at 12.30 today to ask if I could send extra documents in and they were fine with that, no problem there, they were very understanding (probally because it's Friday)

Also rang the solicitor (drydens) spoke to the guy who will be at the hearing next week, to ask his permission to send copies of the extra doc's and he was ok with this too, he did ask me to fax them, I told him that was not possible as I had no access to a fax macine (I'll buy one when I get my money back)

So extra doc's have been sent now.

 

Can't believe I messed up, you think your all organised and sorted and then you mess up like that. I think it's all gona go tits up for me.

 

O forgot to mention solicitor did ask me if I'd recieved a call form the court's advising the hearing has been brought forward to Wednesday 17th Jan (he was informed this morning)

 

x

[zootscoot]

Good news on the statements!

 

I'm sure you'll be fine in court. Don't forget this is not the full hearing. The judge is only going to be interested in whehther you have an arguable case... which clearly you have.

 

The courts are well aware of Kensington's practices and don't like them at all. Take some time to read over your arguments so that you can go in with confidence. Don't let them intimidate you. Remember all the stress and worry they have put you through and now its your turn to get back at them. You are the one suing them which means you are the one in control. Do get confirmation from the court on that date.

 

You're doing really well to get this far. Be strong!

 

All the best

 

Zoot

[jamorgan]

Thanks for everything

it's been a hell of a week with one thing and another.Roll on wednesday.

speak soon

x

[FairlyNiceChap]

I thought I would post points 22-28 just incase there is anything that could be of relevence.

 

22........

d. Without an ERC commercial consiquences for borrowers would be higher than the initial fees allternativley higher rates of interest both of which do not opperate in the interests of the consumer.

 

Jamorgan

 

If anyone else has picked up on this do please ignore me (also I have no legal background - just comparing things i have read on the site in different places) but (maybe Zoot could comment?)....

 

The above seems to me suggest that (by implication) the fee indemnify Kensington against risk in offering us a reduced interest rate in order to attract custom -

 

Therefore is also contrary to s.4 Unfair Contract Terms Act 1977. This is probably unreasonable under s.11 UCT as Kensington is in a far better placed position than consumers to bear the risk

 

If i am talking bol***x Sorryto waste your time (gl it the hearing)

[dhoom]

 

22.If the court accepts the claimant's argument it is submitted that th ERC clause was a liquidated damages clause.Again,I believe this will be a matter for legal submissions.However,at this stage I can expalin that the clause does equate to a pre-estimate of loss.For example:

 

a.By redeeming early the defendant lost a significant amount of revenue which they would have recieved had the claimant continued to pay throughout the mortgage term:

b. If the claimant had continued to pay throughout the mortgage term the defendant would have recovered some of the costs spent in obtaining the funds for the mortgage advance,making the advance and servicing the nortgage over its expected lifespan.It should be recognised thet the defendant borrow's money on the money market inorder to be able to provide the mortgage products and commits its self to borrowing funds over the same fixed period at slightly lower rates than those offered to borrowers so as to make a small profits.Therefore if a borrower redeems her mortgage before the end of the fixed term, for example to take advantage of lower rates elsewere,the defendant is still commited to it's own borrowing at the origanal rate but it cannot re-lead the money at the interst rate orriganally offered to the borrower.Therefore, the defendant will suffer a loss over the remaining term of the fixed rate period and the ERC is designed to compensate the defendant for this;

 

x

 

I would put them to strict proof and ask them if indeed they borrowed monies to finance your mortgage, I would suggest that they already had excess funds to be able to discount a deal rather than not making any profit on surplus funds. I think £1 spent on obtaining their accounts from the companies house website, would be money well spent to see if they did have surplus funds. You can then go on to argue there was no monies borrowed from the money and as such they have not incurred any loss.

[jamorgan]

I shall thanks for that.

 

The Mortgage we have know is sllightly higher (6.44%) than that of the discounted rate from Kensington of 6.25% that lasted all of 2 months,BUT the mortgage we have now is a fixed rate (no increases,no nasty surprises thats all we wanted was a fair deal) we can come out of this product in August (with no ERC to pay) and hopefully look for a better deal, but our credit rating has taken a hammering again and I think we will be in the same boat as we were when we first started.

 

 

If any body has any advice would gladly appriciate it.

thanks again for the comments and support,keep them comming.

x

[Dean123]

Reading your thread with great interest, I am at the lba stage which went off last week with regard to charges, and am about 10 days away from issuing Money Claim for ERC. (I chose to take out two seperate actions with charges and ERC). Since I started the claim they have written twice asking for a further seven days each time (I have ignored both these letters and stuck to my own time frames). Having read your thread i just wonder if they are trying to make me wait till after your court date

[jamorgan]

Hi Dean123

 

Possibly, you never know what they will get up to next.

I'll keep you posted though.

Good luck we are all behind you too

Morgy x

[zootscoot]

Hi Morgy,

 

Have you checked that date with the court?

[ED1237]

Good luck Morgy, I am sure you will not need it.

[jamorgan]

Yes it's off to court tommorrow 12.30pm.

 

i rang the court today and spoke to a lovley guy in civil section and asked him should I come a little earlier and where to report to when I get there . He asked me was I comming with a solicitor and I told him no, he told me not to worry too much as the District Judge we would be meeting with is a very very nice guy.

felt a little eased.

 

Very ,very nervous, afraid I shall mess things up. Lots of things going on in my head at the mo.

Wish you were all going to be there to support me but I know you will be thinking of me.

Never been to court before.

Bloody hell its only a one hour meeting for god help me if it gets to a full hearing.

Well wish me luck i'm gonna need it

shall speak tommorrow.

xx

[CrispDust]

Good luck mate

[zootscoot]

Very very best of luck Morgy!!!!!!!

 

We'll all be there in spirit rooting you on. Just remain calm. You've got an arguable case so there is no need for them to strike out your claim and you've got a strong defence to their counter claim also.

 

Go and show them you mean business!

 

All the best

 

Zoot