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

[jamorgan]

Ok here's the skeleton argument that the solicitor's have sent me a couple of days ago.

 

DEFENDANT'S SKELETON ARGUMENT FOR HEARING ON THE 19TH JANUARY 2007

 

1.The Claimnat seeks to recover £7318.32 that she paid as a charge for early repayment of her mortgage with the Defendant (in factwith its predecessor in title). The Defendant denies the claim and counterclaims the costs of these proceedings pursuant to the mortgage contarct.The matter is listed for a case management conference on the 19th Jnauary 2007.but by order of HHJ Hickinbottom dated the 14th December 2006 the court has also listed for the same hearing the Defendant's application dated the 8th December 2006 to strike out the claim or for summary judgement in favour of the defendant.

2. The facts are set out in more detail in the witness setatement dated 28th December 2006 for the defendant,but in summary:

(a) on 7th April 2004 Kensington Mortgage Company Ltd advanced the claimant and her husband £119,195.00 secured by a mortgage on their property;

(b) on 28th June 2004 Kennsington Mortgage Company Ltd transferred its business,including this mortgage,to the defendant;

© on 8th August 2005 the claimant redeemed the mortgage in full,including payment of the ERC.

3. In applying the ERC,the defendant was relying on;

(a) cndition 17.1 of the mortgage conditions entitling the claimant to repay the debt at any time;

(b) condition 17.2 of the mortgage conditions requiring the claimant to pay the ERC if she made an early repayment of the debt;and

© condition 673 of the special condition,which set out how the ERC whould be calculated (i.e 6% of the sum repaid in the first three years of the mortgage.

 

4. The claimant does not dispute that these were the terms of the mortgage contract or that the mortgage account was redeemed-see paras 2&4 of the defence to counter claim.

 

5. The basis of the defendant's application for strike out /summary judgement is that the particulars of claim disclose no reasonable grounds for bringing the claim (cpr 3.4 (2)(a)) and that the claimant has no real prospect of succeeding on the claim (cpr 24.2(a)).

 

6.The claimant's case is that the conditions provided for the erc are unenforcable as a penalty clause.This cannot be correct,because the erc was not payable in relation to a breach of contract,as is the requirement of provision to be considered penality;see chitty on contracts,29th addition 2004,26/109; " where the parties to a contract agree that, in the event of a breech the contract breaker shall pay to the other a specified sum of money,the sum fixed masybe classified by the courts either as a penalty (which is irrecoverable) or as liquidated damages (which are recoverable)[emphasis added]

 

7. In this case,there was no breach of contract,because the contract (mortgage cond 17.1) expressely gave the claimant the right to repay the debt early and of course the other paymant provisions had to be read subject to that provision.

 

8. The claimant argues (para 5 of the defence counter claim) citing Bridge vs Campbell Discount Ltd [1962] ac600, that a court can still find that there has been a breach of contract even where an exspress contractual right has been excersied.

 

9. Bridge vs Campbell is not authority for such a proposition.In that case the claimant hired a vehicle from the defendant the contract provided that he could terminate the agreemant on written notice,but would then have to pay specified charges. The House of Lords did not determine wether those charges constituted a penilty,since they determind that the claimant have not in fact terminated the agreement as provided for by the contract;he had not been able to pay the hire charges and written a letter as follows "owing to unforseen personnel circumstances I am very sorry that I will nor=t be able to pay ant more payments on the Bedford Dor mobile.Will you please let me now when and were I will have to return the car. I am very sorry reguarding this but have no other alternative."The House Of Lords found that as a matter of construction the claimant was not thereby given notice of the terminastion of the contract,but was simply acknowlegding that he was in breech of the contract.Accordinlly provisions require payment of the charges were not triggered.

 

10. In the present case it cannot argues that the claimant was not exerciing the right to early redemption of the mortgage but was merly in breach of the contract; there is only one possible interpritation of her repayment of the whole of the outstanding mortgage debt;more over,her payment included the erc, as she would have recognised from the redemption statement.

 

11. If the defendant is wrong and the erc is payable on breach of contract,the defendant would argue that the erc represents liquidated damages rather than a penalty , as set out in para 22 of the witness statement of Drydens.

 

12. The claimant also claims that the provisons realting to the erc fall foul of the unfair terms in consumer contract regulations 1999 on the basis that para 1 (e) of schedule 2 to the regulations classes terms as unfair were they have the object of requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation (para 7 of the deffence to counterclaim).

 

13.Again,the claimant has no prospect of success on this argument;

a. para 1 (e) of shed 2 to the regs could not apply,since,as set out above, the erc was applied because of the claimant decision to repay the debt not because of a failure to meet the obligation;

b. regulation 6 states that the assesment of fairness shall not apply to a term relating "to the adequacy of the price or renumeration"; the erc was intergral to the cost of the mortgage and is not therefore subject to the regs;

c. it would be a striking conclusion,with enormous repurcussions,that erc, which apply to the vast majority of mortrgage products,are unfair;

d.further factors are set out in para 23 of the witness statment for the claimant.

 

14. If the defendant is successful, it will seek its costs;

a on an indemnety basis in accordance with mortgage conditions 48&49;

alternatively

b in the discretion of court in the orrdinary way

 

Anything to add

x

[jamorgan]

Hi all,

 

Zoot with regards to the COUNTER CLAIM 26. (above) just copied it from what solicitor had sent us through post.

 

As for the bit about contacting the mortgage about the rise in interest rate, it was done over the phone.I pleaded with them to look at our situation and see if they could set up a fixed deal/lower rate,as we did not now wether this rate would just keep on climbing. They could not help us and the 8% plus any additional rises would still stand.

I then asked if they could at least tell us what we would be paying after the year was up and I found a letter dated 31st january 2005

 

further to your recent contact with the customer contact centre.

 

We acknowledge your request for a quote on your monthly payments on the basis of the default interest rate.As the interest rate is set on a quartly basis we advise that you contact us after the next interst rate change,which will be on the 10th March 2005

If you contact us after this date we will be able to provide you with an accurate quote.

 

Also just found another letter which states that the same solicitor that we HAD to use was also representing Kensington Condition 627 (didn't think this was allowed) and Kensington will be paying a fee to the broker or financial advisor once mortgage is complete.

 

As for sending the draft for directions I have not sent anything at all to any body since my Defence to counter claim dated the 25/10/06

 

and this is for Gizmo

It's not a full hearing Giz, only a case management conference the application to strike out our claim shall be heard at 12.30 on the 19th jan 2007 at time estimated of 1 hour and I have to serve and file evidence by the 12th Jan

 

x

[jamorgan]

Zootscoot,

Just a recap,

Now the application to strike out the claim will be the topic in this 1 hour conference case mangemant on the 19th Jan,Should I still send the list for directions along with the defence to strike out that you prepared for me, staright away.

Also do I need to do anything else in between.

And can I take anybody along with me to the case management conference.

SOrry to keep on but I don't want to mess up on anything.

I'm a bag of nerves and I do not know what to say at this court meeting.

x

[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

[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

[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

[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

[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

[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

[jamorgan]

Thanks for everything

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

speak soon

x

[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

[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

[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

[jamorgan]

I think this was the worst day of my life.

 

Had the solicitor present but they had a Barrister to represent them (actually a very nice guy)

 

My case has been struck out! ordered to pay costs of £4558.00 in the form of judgement.

I feel sick to my stomach

Reasons for this is there is clearly no breach of contract and my claim has no basis in law and would have no prospect of success

I have 14 days to appeal to the judge personally in writing if this is declined I can appeal to a high court judge within 21 days

 

Need help and lots of it what shall I do Zoot

[jamorgan]

Thanks for the support guys

Giz I haven't had a letter to say it was allocated to fast track,and yes feel up to posting more details what do you want to know

ask me anything and i shall try to remember what was said

x

[jamorgan]

Firstly will ring court tommorrow and ask if I will be getting a transcipt

 

x

[jamorgan]

Just posting some bits that I'm remembering.

 

He struck it out on the grounds of Law and that it was not a penalty as there was no breach of contract. He said we could come out of the agreemant at anytime and it was our choice to do so as we excersied a right not broke a contract.

 

The Judge agreed with the Barristar who had arguments relevant to the past cases i.e Bridge v Campbell emphasising the fact that these were minority decisions.

 

I argued the point that we were offered one product only,and nothing else and if we continued with the three year term we could have faced loosing everthing due to the continuing rises and monthly repayments through years 2&3, he replied I still had the option of

1.not taking out the mortgage and

2. to come out at anytime and pay the ERC

I just went through several para's from my statement that i could rely on and he was unsimpathetic, he was completley on there side.

He also as we signed the contract we new exactly what it entailed.

x

[jamorgan]

This is what I refered to in court, I don't think the judge even read this document I sent him

 

 

 

 

 

 

 

 

In the Cardiff County Court

 

 

 

CLAIM NO 6QZ65372

 

 

 

 

 

 

BETWEEN:

 

 

 

 

 

J A MORGAN

 

 

 

 

 

Claimant

 

 

 

 

 

 

and

 

 

 

 

 

 

MORTGAGE AGENCY SERVICES No 6 Ltd

 

 

 

 

 

 

 

 

 

Defendant

 

 

 

 

 

 

WITNESS STATEMENT OF JAMORGAN

 

 

 

I, J A Morgan of ............ will say as follows:

 

1. I am the CLAIMANT in this case.

 

2. I make this witness statement in support of my response to the Defendant’s application to strike out my claim and in defence to the counterclaim.

 

 

3. I make this Witness Statement from facts within my own knowledge and from facts which I believe to be true

 

4.Paras 1-18 of the Defendant's defence are admitted.

 

5. Para 19 is denied. The Claimant was in breach of a major term of the contract. The particular term in the mortgage which was breached was an express term relating to the period of thirty years for which the mortgage was to run. This term of the contract was clearly stated in the written mortgage offer signed by the claimant. The terms of which were incorporated by reference into the mortgage deed which was not only signed, but also witnessed. There is clearly no room for doubt that such a clause existed in the contract. Similarly, there is no question that the claimant in fact redeemed the mortgage on the 05/08/2005 as evidenced by the final redemption statement. This date is clearly well before the contractually agreed date of 07/04/2034 and thus represents a clear breach of the contract.

 

6. To further the contention that a breach of contract did in fact occur, it is submitted by the Claimant that during the period of the thirty years the Claimant was clearly under a contractual obligation to pay monthly instalments to the Defendants and clearly has not made such payments since the redemption of the mortgage.

 

7. The Claimant accepts the contention that redemption of the mortgage was expressly provided for in the mortgage offer under Condition 17.1. Condition 17.2 provides that an early redemption charge was payable in the event of redemption and thus represents a charge that is payable in the event of a breach of contract. Conditions 17.1 and 17.2 merely anticipate a breach of contract and thus do not represent the exercising of a right under the contract.

 

8. In the event that the court were to find the said term as exercising a right and without prejudice to the above paragraph it is submitted that the fact that such a term exists does not prevent a court finding of breach of contract following the House of Lords decision in Bridge v Campbell Discount [1962] AC 600. This case was decided upon the finding of a breach of contract, The finding of a breach of contract as oppose to the exercising of an option was based on the fact that to amount to an exercising of an option there had to be intention to exercise the option demonstrated by the hirer. When the Claimant terminated the mortgage early it was purely to be free from the burden of the contractual obligation. The Claimant was not aware that she was exercising an option to terminate but merely knew that if she did end early she would have to pay a penalty. If she is unaware that she is exercising a right how can it be said that she intended to exercise such a right.

 

9. Furthermore, in Bridge v. Campbell Discount Co Ltd Two of their Lordships (Lord Denning and Lord Devlin) went further in their findings, holding that even had the hirer exercised the option, they would still be prepared to strike down clause 9 as a penalty and thus were of the opinion that Associated Distributors, Ltd. v. Hall was wrongly decided. This, as a minority decision, however, is not binding, but the Claimant invites the court to consider this as persuasive authority in the light of advances in consumer protection legislation since the decision.

 

10. It is the Claimant’s submission that term relating to the Early Repayment charge is merely a penalty clause disguised as an option to exercise a right. It is respectfully requested that the court should look to the substance of the clause rather than the form. It is thus asserted that clauses 17.1 & 17.2 when read together are simply a pretence at conferring a right to exercise an option when in essence it is simply a term setting out the consequences of a breach of contract and as such in the absence of a genuine pre-estimate it amounts to a penalty. As such, the clause can thus be seen as ambiguous as there are two possible interpretations of clause. In the event of ambiguity in a written contractual term, the contra proferentem rule requires the court to resolve any ambiguity against the party who drafted the term. In this regard I would also like to rely on Regulation 7 of the Unfair Terms in Consumer Contracts Regulations 1999:

 

Reg 7. - (1) A seller or supplier shall ensure that any written term of a

contract is expressed in plain, intelligible language.

 

(2) If there is doubt about the meaning of a written term, the interpretation

which is most favourable to the consumer shall prevail.

 

11. The Claimant denies the contention by the Defendant in para 19 that the term relating to the early repayment charge is a liquidated damages clause. A contractual term which provides for a specified amount payable (whether by a fixed sum or calculated by way of a percentage) must represent a genuine pre-estimate of loss if it is to be regarded as a liquidated damages clause Dunlop Pneumatic Tyre Co. Ltd. v New Garage & Motor Co. Ltd. [1915] A.C. 79. The Claimant has repeatedly asked the Defendant to provide the claimant with details of how their charge was calculated to represent a genuine estimate of their loss. The Defendant has failed to respond to this request and thus the claimant is of the opinion that no genuine pre-estimate indeed took place. The Claimant thus makes a respectful request to the court that disclosure of this information is provided to the Claimant forthwith to bring an expeditious termination to the proceedings.

 

12. Further, in relation to paragraph 19 of the Defence, the Claimant contends that if the Defendant complies with the Claimant’s request to provide a breakdown of losses to which the Defendant has been put to, it would reveal that the charge levied would in fact be revealed to be a disproportionate penalty under the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). The Claimant’s account falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as the Claimant is a consumer. The charge constitutes an unfair penalty under Schedule 2 of the said Regulations which provide an indicative and non-exhaustive list of terms which may be regarded as unfair. Under paragraph 1(e) of schedule 2 this specifically includes terms which have the object of requiring any consumer, who fails his obligation, to pay a disproportionately high sum in compensation. The Claimant vigorously contends that this is the position regarding the fee of £7149.64 which the Defendant deemed fit to apply to the Claimant’s account. It is further submitted by the Claimant that the Defendant’s failure to provide such information is for the reason that such information would reveal that the term is in fact a disproportionate penalty. Had the defendant been able to demonstrate that the charge was indeed a liquidated damages clause it has had ample opportunity to do so and the Claimant would not have needed to initiate these proceedings. It is thus respectfully submitted by the Claimant that the Defendant’s defence be struck out as an abuse of process or in the alternative that an order to disclose this information is made so as to satisfy the claimant that the charge is indeed a liquidated damages clause.

 

13. Furthermore it is submitted that clause 49.3 of the mortgage conditions is unenforceable by virtue of s.4 Unfair Contract Terms Act 1977. It is respectfully submitted that the clause is unreasonable with in the meaning of s.11 of the said Act.

 

14. Para 20 of the Defendant’s defence is admitted.

 

15. Regarding Para 22 the Defendant has not given a breakdown of its actual losses nor provided a response as to how it came up with a genuine pre-estimate of its losses. A fee calculated by terms of a percentage of the sum repaid can not amount to a genuine pre-estimate of the Defendant’s loss, but moreover represents a fee levied with a view calculated to profit from the claimant’s breach, to act as a clog on the equitable right to redeem or to punish the Claimant for its breach of contract. Furthermore it is contended that the reasons thus far provided by the Defendant fail to take into consideration the duty of the Defendant to mitigate its loss in accordance with the principles set out in Payzu v Saunders [1919] 2KB 581.

 

16. The Claimant agrees with para 22 c of the Defendant’s application in as much that the Defendant has the right to set a liquidated damages clause and this would be perfectly acceptable to the Claimant. However, the Claimant contends that the early repayment charge calculated at 6% did not amount to a genuine pre-estimate of loss and that it was excessive in relation to any loss which could conceivably flow from the Claimant’s breach of contract.

 

17. In relation to para 22 d, the Claimant contends that the this para is irrelevant to the present proceedings and in any event the Defendant already charges some of the highest fees and interests rates on the market. The set up costs charged by the Defendant were £1865.00 compared to other lenders fees which are typically £300.00 on average. The interest rate commenced at 6.25% and rose to 8.950 % comparable to typical lending rates at the time of 3.77%. The Defendant’s concern about being disadvantaged in the mortgage market place is misplaced in that the Defendant specialises in sub prime lending where the choice available to consumers is significantly narrowed allowing the few commercial entities that lend in this specialised market to charge fees which border on extortion.

 

18. In relation to para 22 e, the Claimant has never suggested that any other consumers bare the burden of any loss sustained by the Defendant. The Claimant is happy to pay any actual cost incurred by the Defendant in relation to the Claimant’s inability to continue with her contractual commitments. In fact the Claimant has repeatedly asked the Defendant to provide her with a breakdown of such costs which the Defendant refuses to do.

 

19. The Claimant contends that the early repayment charge was an unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 and in relation to para 22 of the application would refer the court to the submissions outlined in para 9 above.

 

20. In response to para 23 a, the Claimant denies that the ERC was a core term relating to the adequacy of the price of the mortgage. It is the Claimant’s submission that the ERC was a sum payable on breach of a core term of the mortgage in accordance with para 5-7 outlined above.

 

21. In relation to para 23 b, the Claimant contends that the ERC was contrary to the requirement of good faith as it exceeded any actual loss to the Defendant, was levied with a view to profit, was designed to act as a clog on the Claimant’s equitable right to redeem so that the Defendant could continue to increasing the interest rate payable which it contributed to the Claimant’s inability to meet her contractual obligations.

 

22. In relation to para 23 c, the Claimant refers the court to para 7 above.

 

23. The Claimant contends that the ERC did cause a significant imbalance in the parties’ rights and obligations and denies para 22 d. The Claimant was in a vulnerable position in that she had a history of light adverse credit. The Defendant was in a significantly stronger position in that they are leaders in a niche market in providing mortgages in the sub prime sector. The Claimant was paying an interest rate above the High street lending rate and was not in reality getting a discounted rate but was paying a premium rate. The Claimant had limited choice in the mortgages available to her.

 

24. In response to para 22 e the Claimant contends that the ERC was detrimental to the consumer for all the reasons outlined above. The Claimant strongly refutes the suggestion that she had the option of continuing the mortgage for three years to avoid the ERC. The Claimant was unable to meet her mortgage instalments once the interest rate rose to such a level that the mortgage payments had increased from the initial £618.00 to £894.00. This was beyond the means of the Claimant. Whilst the Claimant accepts that the Defendant had the right to increase the interest rate within the terms and conditions the Claimant, perhaps naively, did not expect to see such a dramatic increase in such a short space of time. After the Claimant contacted the Defendant and was denied any help with regards to a better offer i.e a new fixed rate for years two and three. The Claimant could not afford the risk of more dramatic increases in the final two years of the tie in period, therefore the Claimant had no other option than to terminate the agreement.

 

25. In response to para 24 the Claimant accepts that she had independent advice and was aware that the charges were applicable. However she did not expect to be forced in to the position of having to redeem the mortgage so early due to the excessive hikes in interest rates.

 

 

26. In the premise of all the above, the Claimant respectfully submits that the claimant does indeed have a legitimate cause of action which should be allowed to proceed to trial in the event that the defendant continues to refuse to provide the claimant with the information requested to satisfy the Claimant that the fee levied by the Defendant was indeed lawful.

 

27. The Claimant further submits that the Defendant has not provided a satisfactory cause for the claim to be struck out nor provided a legitimate reason for its accusation that the Claimant has abused the court process. Indeed had the Defendant complied with the Claimant’s requests for information the Claimant would not have needed to seek redress through the courts.

 

 

Defence to counter claim:

 

28. The claimant accepts para 26 of the counterclaim and that under clause s48 & 49 of the mortgage conditions she agreed to indemnify the Defendant in respect of any costs the defendant reasonably incurred in dealing with the discharge of the mortgage. The Claimant puts the Defendant to strict proof of these costs. The Claimant reserves the right to inspect the evidence relating to costs with a view to challenging the clause in relation to the costs under the s.4 of the Unfair Contract Terms Act 1977. Further the Claimant request an order from the court that this aspect of the Counter claim is struck out as the Defendant has failed to adequately particularise its costs.

29. Further to paragraph 27 of the Defendant’s counter claim it is submitted by the Claimant that it was not in the contemplation of the parties nor was it anticipated that such a clause could be relied upon by the Defendant to require the claimant to indemnify the defendant in proceedings brought by the Claimant to recover sums unlawfully taken by the Defendant.

30.Furthermore since the mortgage was discharged on 05/08/2005 it is no longer open to the Defendant to rely on a clause contained in that contract allowing them to recover legal costs.

31.Without prejudice to the above paragraph, it is further submitted that clauses 48 and 49 of the contract which the Defendant seeks to rely on to recover their legal charges, is an unfair term under s.4 of the Unfair Contracts Terms Act 1977. It is respectfully submitted by the Claimant that such a term should be regarded as unreasonable under s.11 of the said Act, as even if the Claimant were to succeed in these proceedings, the term would effectively deprive the claimant of a remedy and indeed could leave the Claimant open to pay further costs.

32.The claimant respectfully asks the court to strike out the Defendant’s counterclaim as it represents an abuse of the court process in that it is intimidatory to the claimant, aimed at pressuring the claimant into withdrawing her claim and is in direct conflict with the Civil Procedure Rules. Under the Overriding Objectives of the Civil Procedure Rules there is an obligation to deal with cases justly and to ensure that the parties are on an equal footing. To allow the Defendant’s counterclaim for costs would put the Claimant at a substantial disadvantage to the Defendant in that the Claimant has no reciprocal right to claim costs under the contract and is thus unable to obtain legal advice and representation for her claim. Also as a litigant in person the Claimant is already at a substantial disadvantage as the Defendant is a large financial institution with ready access to legal advice and the ability to bear the burden of such costs. The claimant firmly believes in the justice of her claim and feels she has no option but to proceed. The Claimant and her family would be caused severe financial hardship should the court allow the Defendant’s counter claim.

33. The claimant accepts that it is within the courts jurisdiction to award costs against her, however, the defendant’s counterclaim seeks to usurp the judge’s power on the order of costs.

34.In view of the Defendant’s conduct thus far in the proceedings and particularly for the reasons given in paragraphs 28-33 above it is respectfully requested that the court makes an order that no costs be awarded against the claimant at all in these proceedings.

 

 

STATEMENT OF TRUTH

 

 

I believe the facts stated within this defence to be true and comprising of 7 pages.

 

 

Dated: 10/01/07

 

Signed: JAMorgan

[jamorgan]

Hi Zoot

 

Told the Judge that we had a little light adverse credit and we were only offered a mortgage with

1 mortgage lender , and 1 product only no other alternative what so ever was offered

I referred him to para 17 which I read out which states how much it cost me to get the mortgage,the rate we started off on and what it rose to comparable with other lenders at the time and about the company specialising in sub prime lending and a bit about there charges bording on extortion.

 

He was not interested

[jamorgan]

Thanks guys for the continued suport

I know you feel for me and are truley gutted, well you know what they say YOU WIN SOME YOU LOOSE SOME

 

Not sure what to do now, I'm wondering wether to appeal. what shall I do guys allready court costs are up to £4558.00 (will they except a £1.00 a week)

Judge did say that I could incur further costs and I would have to reply to him personaly in wrighting within 14 days no later if he refuses I could apply to higher judge within 21 days

what do you think?

Got major headache now think I might get some shut eye its been along day

x

[jamorgan]

I think I will Giz, cheers my darling.

 

I would like to say that what's happened to me today was just unlucky like I said, you win some you loose some,but for the rest of you,don't be put off by whats happened today, fight for what you believe.

Maybe I didn't do enough today to sway the Judge into our thinking.

I did not feel confident enough, it was a very awful experience for me.

I am not a very good speaker and I feel Ii was way out of my league.

Another day tommorrow fresh thoughts

x

[jamorgan]

Hi Bona,

sorry to here your sad storey.

Solicitor is Drydens in Bradford

Adam Fox is the contact we have had through the claim,but today a Stephen Innes turned up with Adam Fox to defend them.

 

I recieved a letter this morning before I went to court

Please find enclosed,by way of service,our clients statement of costs

 

fee earners grade c £120.00 per hour plus vat

asf - 1.3 hours @ £120.00 toatal £156.00

Attendance on court

asf-2.1 hours @ £120.00 total £252.00

Attendance on Documants

asf-5.4 hours @ £120.00 per hour plus vat toatl £648.00

Preperation of hearing

asf-9.1 hours plus vat per hour total £1092.00

Attendence on Claimant

asf - 1.0 hour @£120.00 plus vat per hour total £120.00

counterclaim issue fee £250.00

Apllication fee £65.00

Councel's fee for settling evidence £150.00

Councel's Brief fee £750.00

legal fee £212.63

Disbursements £157.50

 

Total including VAT £3,853.13

Judge asked Defendant at the end of the conference was there any other fees applicable to this ammount and Styephen Innes advised yes an extra

£600.00 for the last minute skeleton argument

 

So total amounts to £4558.30

 

Great isn't it

x

[jamorgan]

Thanks Les you just put a smile on my face

xxxx

[jamorgan]

Hi Guys, i'm feeling good today.

 

I LOVE you all so very much, you are all a breath of fresh air, and the support and suggestions you have made are mind blowing.

I CAN'T THANK YOU ENOUGHxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

 

A bit of news for you though

I had a bizarre conversation with someone today.

I rang the court and asked for the section that could help me with regards to the transcript they put me through to a guy and the conversation went something like this:

I was at the court yesterday for a cmc and unfortuanly lost my case,therefore the Judge struck out my claim, then this guy said

"yes I am aware of that mrs Morgan I was there yesterday, I am the clerk " (o great I thought to my self)

I told him that after yesterday I seeked a little legal advice (from my friends) and the first bit of advice given was to obtain a transcript and could he be very kind enough to advise me how to go about doing this

but to my surprise he replied "I am glad you have done that"

well i was bloody gobsmacked

I replied "I didn't do very well yesterday did I" He said I thought you did very very well especially compared to some people who come through these courts, (I nearly started to cry)

 

He then said he would get everything typed up and sent out asap and he would include instructions on how to get the transcript.

Then to my surprise he said to me "just remember what the Judge said to you last going off, try to remember his words he was trying to help you

 

Well the only thing I can think of is

I could appeal and have 14 days in which to do so but I was to personnally appeal to him in wrighting, then the Barristar cherped up and said I think you will find Mrs Morgan has 21 days to appeal to the high court and doesn't actually need to go through you.

 

What's your thought on that guys?