Ukaviator Vs Birmingham Midshires **Settled**

[Lizzy]

Thanks very much. I will use it as soon as I have paid my credit card.

 

It seems that they have (even by mistake) admitted that it is a penalty charge at least.

 

Can't wait to see how you get on.

 

 

Lizzy

[biffa1965]

Allo Uk let me know how you get on, ive just had my reply to LBA, Stating tthe usual not breach of contract, terme and conditions etc and equity to redeem argument. What reply did you send to this mate ? or did you go straight to mcol

[gizmo111]

Can I ask what you put in the Particulars Of The Claim on the MCOL form please?

 

I have just received the usual fob off letter from internal complaints level 2. Saying our first letter stands. It was the same as yours Ukaviator except it had an extra little paragraph saying .

 

With regards to your request for a breakdown in our costs and losses for these penalty charges we confirm that this is commercially sensitive information. Conseqently, we are not obliged to divulge this information to you however, we apologise for any inconvenience this may cause.

 

They have obviously understood the question then. Are they allowed not to answer it as it will be the major part of my claim ?

 

But they admit it is a penalty!!!!!!!!

[ukaviator]

Hi Gizmo

 

I went to MCOL after the LBA. BM were quite clearly stating that they would not just pay up at that stage. I have filled in the AQ and sent them a copy of everything. Had to hold back from the court the offer letter of half the ERC from them as it said 'Without Prejudice' on it. So by offering half before the AQ tells us that the ERC is unlawful as Zoot said a while ago. Why offer something back?. I should get some communication soon.The solicitor acting on their behalf was on holiday for the last 10 days. I have asked for full disclosure when we see the judge. They seem to not want to reveal that at all. Just waiting for them now.

 

Uk. . .

[Lizzy]

Any news on this yet Uk ?

[ukaviator]

Hi Lizzy

 

Seems to have come to a sudden stop. No court date yet, no correspondance at all from BM. I know the solicitors are on holiday.Seems that someone is off every week. will phone the Leicester court later to see why i have'nt a date set.

 

uK

[UnhappyBunny]

Good luck Ukaviator, sounds like a pre-Christmas slow down. I am still awaiting any contact they MCOL was deemed served on 15/11

[ukaviator]

Here is the defence from Birmingham Midshires.

 

The Defendant carries on Banking Services. At all material times the Claiment had a Mortgage with the Defendant. The account number was xxxxxxxxxxx. The said Mortgage was dated 14th January 2003. The Defendant's general Mortgage Conditions 2000, a copy of which is annexed to this Defence, are applicable to the Mortgage entered into between the Claiment and the Defendant. The said Mortgage conditions were supplemented by special conditions agreed by the Claiment and attached to the offer letter.

Terms and Conditions of the account.

 

The Defendant's terms and conditions provide, inter alia:

7.1 The borrower may repay all or any part of the Mortgage debt at any time before the end of the repayment period.

7.2 The borrower must pay any early redemption fee which the offer letter requires the borrower to pay on early repayment and the reasonable costs and expenses of the Lender in connection with the early repayment.

The offer confirmed that Early Repayment charges would apply if the Mortgage was partially or fully repaid while the Mortgage was within its tie in period,being 2 years after completion of the loan.

The Defendant's records show that in November 2004, the Claiment contacted the Defendant to enquire as to different interest rates and as a result, on 9th December 2004, the Claiment switched to operate on a different Mortgage product.

The Claiment was issued with a Transfer Authority Form, which the Claiment signed and returned. The Transfer Authority Form stated,

If the loan is repaid, or varied in whole or in part prior to the third anniversary of the completion of the loan, the borrower agrees to pay an Early Redemption Charge equivalent to 5% of the value of any capital repaid prior to the first anniversary of the completion of the loan, 4% of the value of the capital repaid prior to the second anniversary of the completion of the loan,3% of the value of any capital repaid prior to the third anniversary of the loan, regardless of any notice given.

It is denied that the contractual term whereby the Claiment agreed to pay the Defendant an Early Redemption Fee constitutes an Unfair term of the contract between the parties pursuant to the 1977 Act and the 1999 regulations. The terms and conditions signed by the Claiment sets out clearly and legibly the applicable charge.

Further, it is denied that the ERC is a penalty. The ERC is a contractual payment required to be paid if the customer redeems the Mortgage, and is a genuine pre-estimate of loss and is therefore not unreasonable under the Supply of Goods and Services Act 1982.

Further it is specifically denied that the Claiment is entitled to interest, or costs.

Any claim as set out in the particulars of calim, which has not been specifically admitted , or not admitted is denied.

The Defendant believes that the facts stated in this Defence are true.

xxxxx xxxxx

Solicitor.

That is it. The whole defence submitted by BM.. Just a waiting game now.

Have to call the court in a few mins to see if they have a date in mind for my hearing. Will keep you all posted. Been helping so many people, have lost track in my own work.

 

Uk. . .

[zootscoot]

Hi Uk,

 

All pretty standard stuff. This should cover most of their arguments:

 

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/31068-paul-accord-5.html#post416899

 

All the best

 

Zoot

[ukaviator]

Hi Zoot

 

I have already sent the AQ back with my response. Seems very standard in my case. I will look forward to their argument if they want to carry on. Should have the court date within a few days. A judge has looked it all over apparently.

 

Uk. . .

[djt]

Hi Ukaviator,

Just wanted to wish you the very best of luck. They may have big lawyers with big talk, but you having Zoot and co helping every step, you'll have no worries.

I'm just waiting my redemption statement from my lawyer detailing how much BM charged me in ERC's, then I'm gonna start the ball rolling in a new thread. Watching your case with extra interest as, like many others, I'll be following in your footsteps...:o

[ukaviator]

Hi DJT

 

Have'nt heard a thing from BM. Rang the court last week and the clerk said that the case was being looked at by the judge.Should get a court date or something this week.Will keep you all posted.

 

Uk

[UnhappyBunny]

Good luck, I got my defence back - very nearly word for word the same as the defence in your case. What did you put on your AQ?

[biffa1965]

my defense exactly the same too

[biffa1965]

allo UK have you got any contact details for BM s solicitors. Its not that O Brien fella is it ? Gona give em a ring, then at least i can see to be attempting to mediate

[UnhappyBunny]

It will be O'Brien as he is head of Group Legal at HBOS.

[biffa1965]

Allo UK, what did you put in section G of your AQ (general information) i merely asked for small claims track and pointed out lack of ability to justify costs. requested standard disclosure and enclosed a copy of this. What do you think

xxx - Claimant

and

Birmingham Midshires - Defendant

 

 

Draft Order for Directions

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;

• b) Copies of any statement or other document relied upon as showing that each and every charge has been made;

• c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;

• d) Copies of decided cases and other legal materials to be relied upon.

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

 

2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

• a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;

• b) Whether such charge is accepted to be a penalty, and if not why not;

• c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;

• d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.

• e) Any witness statements.

• f) Copies of decided cases and other legal materials to be relied upon.

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

apparantly its designed to put the heat up em.!!

[ukaviator]

Hi Biffa

The wording i used was:

In view of the defendant’s conduct thus far in the proceedings, it is respectfully requested that the court makes an order that no costs be awarded against the claimant at all in these proceedings. 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. 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 his claim and feels that he has no option but to proceed. The claimant and his family would be caused severe financial hardship should the court allow the defendant to claim costs if he was to lose his case in court. The Claimant filed the claim believing it would be dealt with in the Small Claims Court and did not anticipate the risk of bearing the costs in the Fast Track. To transfer to Fast Track would be grossly unfair.

 

My claim is just over £5000 so i made sure that was included.

The contact numbers are:

 

01422 333453

 

This number goes to the secretary looking after the solicitors desk when they are away. She is able to transfer you to whoever via this number.

I have heard nothing from them by the way. Just waiting for a court date.

 

Good luck

 

Uk

[biffa1965]

Cheers Uk got the jist of that and i have made some referances in my entry in section g. Whats your gut feelin on all of this? When do you think theyl relent ? ive lodged my papers today at Liverpool County Court and paid the £100 processing fee

[ukaviator]

Hi Biffa

 

I have a feeling they are not prepared for ERC's. The solicitor i spoke to about 6 weeks ago, had'nt heard back from BM as to what to do. They have offered me half of my claim, which i said i would accept as partial payment only. The solicitor then asked BM where they want to go next. Take on the case or pay. Just waiting for the court date really, that may get them moving on a settlement. But then again i may end up going,which will be fun as their defence is'nt that good. Will keep you all posted.

 

Ukaviator

[biffa1965]

Blimey they havent even offered me half of my claim, maybe i sould establish phone contact with their legal rep. Mind you some weeks ago i did recieve a telephone call from someone alleging to be their legal rep telling me to back off as the 'bm would not budge on any issues' i actually mentioned this earlier in my thread

[ukaviator]

Hi Team

 

Just rang the court as i have heard nothing for weeks. Clerk tells me that i have been allocated the Fast track. Good for disclosure on their fees, not good if i lose. Will call BM today and see what they have to say, as they have been informed of track allocation.

 

Uk..

[biffa1965]

gobsmacked youve been allocated fast track Uk keep me informed as to whats goin on mate

[biffa1965]

uk iam not sure of the actual implications regarding fasttrack..forgive my ignorance. Have you been given your court date yet ? if so i may very well pop down on the day to cheer you on. After all there would be much for me to learn on the day. These buggers are now drawing a line in the sand methinks !

[dolly]

Probably gone fast track as over £5k, isn't it?

 

Sure you will not actually get that far anyway