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

[Isiris]

Any news today on the transcript Morgy? It's probably time to start drafting the appeal, as Gizmo says, and then adapting it. Zoot's point about Kensington abusing the process by hauling in a barrister seems like one avenue. I do think we need to get a move on with this. I've been trying to contact aforementioned cousin (who's a contract lawyer and should be able to help) but with no success. I'll keep trying.

Good wishes,

Paul

 

 

http://www.consumeractiongroup.co.uk/forum/legalities/60498-urgent-urgent-help-needed.html

 

this just goes to show the difference approach that the DJs take. I had a simple set aside hearing and the claimants sent a barriter and the Judge just said, dont think so sunshine to their costs.

 

I would like to add I want to make a donation to Jmorgan but dont seem to find out how to do this and also believe IT IS IMPERATIVE that we fund an appeal for her. If it went in front of a high court judge and won which we all believe it would, this would become a precedent for all other cases. We would be quoting J Morgan Vs Kensington 2007 in all our bundles.

 

To allow this to fall away simply because of a cost issue would be ridiculous. Lets get it sorted and raise a fund.

 

We have 100,000 user and if 20% donated 50p, that would be 10 grand

[mullingarman]

Well said Isiris. Jamorgan can't be allowed to be hung out to dry.

[kennyh]

Totally agree with that. Harking back to the introduction of barristers to the equation does the opening element of the Civil Procedure Rules "Overriding Objective"(2)Dealing with a case justly includes, so far as is practicable –

(a)ensuring that the parties are on an equal footing;"

have a bearing?

[Guest willowb]

Just been discussing that in Barracad's thread.....it seems to me that there was no mutuality Judgement here!!!

 

Wxxx

[jamorgan]

Hi Guys,

Recieved a letter from court this morning

 

Upon hearing the Claimant in person and Counsel for the defendant

 

IT IS ORDERED THAT

1. The calim be struck out

2. There be Judgement for the Defendant on the Counterclaim in the sum of £4,558.30

3. Save for paragraph 2 hereof, there be no order for costs.

4. The time permission to appeal be extended to 4pm on 31st January 2007

 

No sign of the transcript as yet.

Could somebody explain point 3 to me please

[sbfido]

Jamorgan, after reading this thread and having a letter from MAS on my desk my knees quiver.

 

Is there a fund for this fight as a win would be beneficial for me as an example for the court. I would prefer (Not got your bottle) to place the costs i would incur into one challenge and have a victory to quote in a future claim.

 

If there is a CAG Fund let me know i want in!

 

Well done you, really well done!

[zootscoot]

Hi Morgy,

 

It seems Kensington won the counter claim rather than the judge awarding costs against you because you lost. Which is again surprising.

 

They are cutting it fine with that transcript. With out that you don't know on what grounds you can appeal.

 

Speak soon

 

Zoot

[Guest willowb]

Zoot, if Morgy appeals against the counter-claim verdict (what she has been ordered to pay out - some £4,500 ish) would this then fall under a small claim? How does that work?

 

Sorry if I'm being dim!

 

Wxxx

[biffa1965]

Count me in on any financial contribution to assist with the appeal we cant let morgy face this alone...where do i contribute ?

[The Avengers]

We have tried to set up a fighting fund to HELP ALL OF US,but it seems that nobody is really interested.

We feel that unless we all get together on this and get a Class Action against these big guns we will never win.

!!!

See our fighting fund thread!!

[jodyperry]

cant find it can u put a link in???

[kennyh]

My last recollection of the thread showed an awful lot of us ready to 'put up' but awaiting direction - if you'll forgive the use of the phrase

[Guest willowb]

cant find it can u put a link in???

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/59149-fighting-fund-mortgage-erc.html

 

there you go hun:)

 

Wxxx

[Bona]

Any news of transcript, When they put in their counter claim did they give you a breakdown of costs I'm doing reserch into costs for my costs hearing and some interesting things have come to light a solictor cannot claim travel expenses if they are within 10 mile of the court also cost must be proportinate to the amount being claimed also cost have to be reasonabel but also the actions of the solicotr /Barrister have to be reasonable, they should have given you an itemosed bill did they

you may be able to appeal on 2 fronts

 

Bona

[Isiris]

We have tried to set up a fighting fund to HELP ALL OF US,but it seems that nobody is really interested.

We feel that unless we all get together on this and get a Class Action against these big guns we will never win.

!!!

See our fighting fund thread!!

 

 

Think we are interested just this hasnt got off the ground yet. No solicitor, no name of whoever is managing the action or even how to donate. I will donate but obviously not untill this has been advised

[jamorgan]

Hi Bona,

Yes they did give me a breakdown,I think I posted the breakdown on page 11 or 12 have a look at it for me and let me know what you think. x

Also rang transcript lady last night and she has not recieved it back from the courts yet, so she gave me the courts section managers direct line and I have left a message at 5.00pm last night for her to contact me back. this morning. I think I am going to ask for a extention on the 14 days,due to the delay in transcript

What do you think guys.

M x

[The Avengers]

Ye you definately need to ask for extension as we think that tou have an agrument to appeal.

[zootscoot]

I think I am going to ask for a extention on the 14 days,due to the delay in transcript

What do you think guys.

M x

 

Sounds the best option

[Bona]

Hi

 

I might be thick but I cant find a breakdown just an amount, you are entitled under the Solicitors act to have a complete breakdown of their costs , ie how much did the barrister charge details of telephone callss letters ect, if these are unreasonable then you could also appeal agaist that, If the judge wont allow you an extension you can ask leave to appeal out of time citing the delay in the transcript

 

Bona

[jamorgan]

Hi,

Bona it's on page 9 hun hope this is enough info.

 

Also rang courts today and asked for advise on extending the time for the appeal, spoke to a lady who said I did not have to wait untill transcript comes through just send a simple fax as the cut off point was tommorrow

I explained that we needed information form the transcript to know what grounds to appeal on,she advisedd just send over a fax stating you wish to appeal.

 

So this is what I wrote.

I wish to appeal as per the order of Judge G Hickingbottom dated the 22 nd January 2007

Please would you advise if you require an appellants notice to be completed or wether any other information is required at this time.

 

any comments guys?

[Bona]

Re costs

 

I think you ought to write to the solicitors asking for a more detailed account of their costs and copies of all invoices and disbursments, you dont want to ask for an assessment as that will cost money unless you can prove their costs were unreasonable . When you get it then we can have a closure look it seems a bit steep for what they did, with regard to the appeal go for it you can always pul out if the judge agres he will give you a date for the appeal and oh boy we will all have to get behind you to help hope this help

Bona

[Bona]

just read their counter claim when you appeal properly I think you might have a case that you were only aware of the cost which they site in their counter claim 24hours before hand and it gave you no time to chalange them and the judge after he had struck out you claim gave you no opotunity to challenge them which would be unfair

any comments anyone

[ella149]

Hi All,

 

Had a loan with Associate now (Furture Mortgages aka Citi financial group) for 5years but decieded to repay it 2years into the agreement following a remortgage. I got heavely stung with early redemption charge, sealing fee, redemption fee the lot. So I decieded to send off a copy of Zootscoot's request for repayment of charges letter found in the libary on 6th January 2007 and like other people on these threads I have recieved a "fob off" response on 23rd January 2007 as follows: please help!

 

RE: COMPLAINT

 

We thank you for your letter of 12th January, the contents of which are noted.

 

We do not accept your claim that the charges are either unlawful or unenforceable either for the reason you state or for any other reason. The recently released Office of Fair Trading report "Calculating fair default charges in credit card contracts" was issued after an investigation involving submissions from eight of the leading credit card issuers. However, the contract that is the subject of your claim is a mortgage, which is an entirely different kind of financial product from a credit card. In addition redemption and sealing fees are not charges for breach of contract, and are outside the scope of the OFT Report.

 

In any case the OFT stated that its finding was merely "a statement of [its] position and reflect[ed] the exercise of [its] discretion as an enforcement agency." It went on to say, " Only a court can decide finally whether a term is unfair or at what level default charges should be set to meet the requirements of the UTCCRs." Based on the evidence it received from the credit card issuers, the OFT established a threshold of £12, beyond which its "presumption will be that credit card default charges set above this level are unfair unless there are exceptional factors that legally justify the higher charge." Whilst the OFT's report is confined to default charges in relation to credit cards, it stated that it expected the general principles to be applied to other kinds of financial product, including mortgages. We do not accept that this equates to a blanket application of the same £12 threshold to cases other than credit cards, and that a different figure would be likely to be arrived at, based on the higher costs involved in managing mortgage arrears.

 

We do not accept your claims that, on the strength of the matters stated in the OFT Report, the charges applied to your account are either unlawful or unenforceable, or that you would be entitled to recover these charges in whole even if (which is not admitted) they were held to be a penalty. It seems undisputed that you breached the contract on each occasion a charge was levied. The law allows us to charge an amount that reflects the reasonably foreseeable costs of the breaches.

 

We note that you rely upon the Unfair Terms in Consumer Contracts Regulations (1999) "UCTCCR" and the Unfair Contract Terms Act 1977 as the legal rationale of your claim. Paragraph 8(1) UTCCR 1999 states that "An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer." Para (2) provides that "The contract shall continue to bind the parties if it is capable of continuing in existence without the unfair term." Schedule 2 identifies terms that may be unfair including at (1)( e) "a term requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation."

 

We consider that-your argument-t-hat-thefees-you have been charged fall foul of Schedule 2 1 ( e) is wrong. On a true construction of both the Regulations and the OFT Report it is clear that we are not constrained by the £12 figure that the OFT has laid down in respect of credit cards because of the different nature of the account that is the subject of the proceedings. Equally, your argument that the charges are totally unenforceable is misconceived in law. The law does not preclude a lender from imposing charges that reflect the reasonably foreseeable costs of the breach. It will only disallow those that are clearly a penalty on the defaulting party (see Jobson v Johnson [1988] 1WlR)

 

We also consider that we have satisfied the tests of reasonableness imposed both under section 11 Unfair Contract Terms Act 1977 and by the High Court, per Coleman J in Lordsvale Finance Pic v Bank of Zambia [1996] QB 752, 762G in relation to our default fees policy. We retain in place an infrastructure involving staff, computer systems and other administrative tools in order to operate an effective collections function based on reasonable assumptions about the number of defaulting customers in any given period.

 

We believe you have both misunderstood and underestimated the true cost to the company of even a single breach, since an infrastructure in staff and other resources with resulting overheads is essential for commercially viable operations.

 

We therefore confirm that we do not propose to remit the sum claimed or any sum at all to you and reserve our rights to recover any and all sums due by due process of law.

 

Yours sincerely

 

 

[gizmo111]

Hi All,

 

Had a loan with Associate now (Furture Mortgages aka Citi financial group) for 5years but decieded to repay it 2years into the agreement following a remortgage. I got heavely stung with early redemption charge, sealing fee, redemption fee the lot. So I decieded to send off a copy of Zootscoot's request for repayment of charges letter found in the libary on 6th January 2007 and like other people on these threads I have recieved a "fob off" response on 23rd January 2007 as follows: please help!

 

RE: COMPLAINT

 

We thank you for your letter of 12th January, the contents of which are noted.

 

We do not accept your claim that the charges are either unlawful or unenforceable either for the reason you state or for any other reason. The recently released Office of Fair Trading report "Calculating fair default charges in credit card contracts" was issued after an investigation involving submissions from eight of the leading credit card issuers. However, the contract that is the subject of your claim is a mortgage, which is an entirely different kind of financial product from a credit card. In addition redemption and sealing fees are not charges for breach of contract, and are outside the scope of the OFT Report.

 

In any case the OFT stated that its finding was merely "a statement of [its] position and reflect[ed] the exercise of [its] discretion as an enforcement agency." It went on to say, " Only a court can decide finally whether a term is unfair or at what level default charges should be set to meet the requirements of the UTCCRs." Based on the evidence it received from the credit card issuers, the OFT established a threshold of £12, beyond which its "presumption will be that credit card default charges set above this level are unfair unless there are exceptional factors that legally justify the higher charge." Whilst the OFT's report is confined to default charges in relation to credit cards, it stated that it expected the general principles to be applied to other kinds of financial product, including mortgages. We do not accept that this equates to a blanket application of the same £12 threshold to cases other than credit cards, and that a different figure would be likely to be arrived at, based on the higher costs involved in managing mortgage arrears.

 

We do not accept your claims that, on the strength of the matters stated in the OFT Report, the charges applied to your account are either unlawful or unenforceable, or that you would be entitled to recover these charges in whole even if (which is not admitted) they were held to be a penalty. It seems undisputed that you breached the contract on each occasion a charge was levied. The law allows us to charge an amount that reflects the reasonably foreseeable costs of the breaches.

 

We note that you rely upon the Unfair Terms in Consumer Contracts Regulations (1999) "UCTCCR" and the Unfair Contract Terms Act 1977 as the legal rationale of your claim. Paragraph 8(1) UTCCR 1999 states that "An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer." Para (2) provides that "The contract shall continue to bind the parties if it is capable of continuing in existence without the unfair term." Schedule 2 identifies terms that may be unfair including at (1)( e) "a term requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation."

 

We consider that-your argument-t-hat-thefees-you have been charged fall foul of Schedule 2 1 ( e) is wrong. On a true construction of both the Regulations and the OFT Report it is clear that we are not constrained by the £12 figure that the OFT has laid down in respect of credit cards because of the different nature of the account that is the subject of the proceedings. Equally, your argument that the charges are totally unenforceable is misconceived in law. The law does not preclude a lender from imposing charges that reflect the reasonably foreseeable costs of the breach. It will only disallow those that are clearly a penalty on the defaulting party (see Jobson v Johnson [1988] 1WlR)

 

We also consider that we have satisfied the tests of reasonableness imposed both under section 11 Unfair Contract Terms Act 1977 and by the High Court, per Coleman J in Lordsvale Finance Pic v Bank of Zambia [1996] QB 752, 762G in relation to our default fees policy. We retain in place an infrastructure involving staff, computer systems and other administrative tools in order to operate an effective collections function based on reasonable assumptions about the number of defaulting customers in any given period.

 

We believe you have both misunderstood and underestimated the true cost to the company of even a single breach, since an infrastructure in staff and other resources with resulting overheads is essential for commercially viable operations.

 

We therefore confirm that we do not propose to remit the sum claimed or any sum at all to you and reserve our rights to recover any and all sums due by due process of law.

 

Yours sincerely

 

 

 

 

Hi ell,

 

Can you please start a new thread so we can follow your story,and was this a loan under £25k, and please post the letter you sent and their reply. Thankyou.

[The Avengers]

NOT SURE IF ANYONE HAS SEEN THE ARTICLE IN EXPRESS TODAY ENTITLED END OF ROAD FOR RIP-OFF HOME-LOAN EXIT CHARGE.

 

States city watchdog is finally taking action against the mortgage lenders who have profiteered from the fees they charge.

 

Really good long article FSA has given them until Feb 28th to put their house in order and stated that they WILL have to pay backpayments to ex customers for over charging admin costs.Again it states that these charges (like the banks) have to be reasonable and in proportion to their actual costs.It states that the watchdog will be seeking justification from the lenders on their costs. The FSA is suggesting a fixed fee.

 

IT SEEMS THAT WE ARE GETTING SOMEWHERE,ANY ADVICE NEEDED THE FSA has asked that customers contact them and to make any complaints to them if the mortgage company hasnt responded.

 

HOPE THIS HELPS.