Cakey Vs Paratus[GMAC] - Penalty Charges Claim - help

[cakey]

Help!

 

I have issued a claim against Paratus (formerly GMAC) for unfair charges

 

they have in their defense sent the court an application to have the claim struck out

as disclosing the claim has no reasonable chance of success.

 

Obviously I think there is a huge chance of succes and also GMAC were fined by the FSA.

 

They have sited CPR 3.4(2)a :

 

The court may strike out(GL) a statement of case if it appears to the court –

 

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

 

 

 

How do I proceed? Do I need to send further information to the court in addition to my original claim before?

 

Any help would be greatly appreciated.

[cakey]

Any help would be gratefully accepted please

[asokn]

Yep, you'll need to show why they are penalty charges as opposed to just charges for administration on the account. As Galactica says the PofC would greatly assist.

[cakey]

Thanks - ok so this is what I submitted on my pofC:

 

Brief details:

The Claimant held a mortgage with GMAC RFC. The Defendant levied charges on said mortgage and added interest to those charges for late payment. These charges exceeded their administrative costs. The Defendant has previously been fined £2.8m for treating customers in arrears unfairly. This included 1. Excessive and unfair charges for customers that did not reflect administration costs; 2 proposing repayment plans that did not always consider individuals circumstances.

 

POC:

1. The claimant held a mortgage agreement with the defendent date X concerning a secured loan of y ref z

2. The said loan is subject to the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR)

3. The Defendant is statutorily bound by the Financial Services Authority Regulations - mortgage: Conduct of Business Rules (MCOB) contained in the FSA Handbook, implemented unde the Financial Services and Markets Act 2000

4. The mortgage fell into arrears after the claimant fell into difficulty and was unable to keep the repayments as required by the mortgage arrangement.

5. The defendant levied mortgage arrears charges against the claimant

6. The Defendant also levied further interest upon the said unlawful charges

7. The mortgage arrears charges were levied at a rate which exceeded their administrative costs.

8. The level of the charges were unfair because they breach the requirement of fairness contained in UTCCR

9. The level of the charges is also unfair because they are the result of unfair treatment by the defendant and therefore levied in breach of the defendants statutory duty to treat their customers fairly as contained in MCOB

10 For these reasons the interest charged on these unlawful charges is also unlawful

11 The claimant would also like the court to consider interest in restitutionary damages for this claim. The claimant does not expect this to exceed £5000

 

The claimant seekd the return of unlawfully levied charges plus associated interest £x plus interest in line with section 69 of the county court act 1984

[asokn]

You may well be expected to justify *why* the charges are unfair and should be refunded. You should also provide a breakdown of the charges to show how your claim is quantified.

[cakey]

Thanks asokn, the Defendant has sent in 55 pages of defence, along with an order asking the claim to be struck out with another 50 odd pages along with a breakdown list of the charges. I have no written to the District Judge saying why I dont think it should be struck out

[cakey]

Galatica, they were yes, I mentioned the action against GMAC in my complaint to them they said it was not relevant in this case. They also included this in their defense! I complained a number of time over a few months. Did not complain to the FOS as Gmac said they would not uphold my complaint and I would only get a random £30 back!

[cakey]

The judge has set a hearing date for the defendants application to strike out the claim. What do I need to do? Can I present evidence etc?

[cakey]

bump

[AndyOrch]

Hi Cakey,

 

Have you been served with a copy of the defendants application and any supporting evidence (Witness Statement)?

 

Regards

 

Andy

[cakey]

Hi Andyorch yes, it runs to around 50 pages....

[AndyOrch]

Hi Cakey

 

A 50 page WS on a defence for unfair charges wow they are desperate, is your claim considerable?

 

Andy

[cakey]

Andyorch just over £2k (due to interest) ... they also filed another 50 pages for the defence... this 50 pages is for an order to strike out....

 

Any thoughts on what I should do?

[AndyOrch]

What is the general outline they plead and reason of defence?

 

Andy

[sillygirl1]

This lot play dirty, they are after me for an alleged £4,500 shortfall, I've already explained I am on benefits so get lost. I can offer some help if needed as I am emailing letters to them, rather than posting.

 

I have told them that the alleged refund £450, bears no relation to any charges I can find, they have sent no statements of account for six years (getting info out of them is like getting a winkle out without a pin!) and they keep saying stuff is included in their letters when it isn't.

 

They seem scared of the FOS and try and pre-judge the decision - which makes me wonder whether they have a tame patsy in the organisation or it is just the usual 'hot air' from this type of predatory shark.

 

One arguement to use back at them is that the company is in administration and that they are only a third party agent trying to claim back money which should go to the administrators, rather than the company (yes, play them at being dirty, this money came from nowhere and is going to a company which does not legally now exist!).

[sillygirl1]

Sorry, thought THEY were taking you to court.

 

I think this case may be struck out and that Paratus AMC (which stands for Asset Management Company btw) would be laughing in your face and issue a counter claim against you at a later date.

 

Sadly the 'big boys' and their cronies sing from the same hymn sheet on reposessions.

[cakey]

Andyorch their main argument is that the FSA case against them for charges does not apply to the charges on my account, that the charges are in their T & C's and that despite the charges being £50 each that I have not proved that exceeds their costs.

[sillygirl1]

Complete rubbish, how can YOU prove it doesn't cost £50 for something to be flagged on their system? I would get any correspondence to the FOS as they clearly are being very inventive here.

 

The onus is, as always on THEM.

 

You also can point out that the objective of you being in arrears is to repay them as soon as possible, these charges prevent this from happening and therefore come under the Unfair Terms and Conditions act, so put that in their pipe and smoke it.

[AndyOrch]

Hi cakey

 

 

The OFT is not proposing that credit card default charges should be equivalent to the threshold, and a court will certainly not consider that such a charge is fair just because it is below the threshold. Where there are exceptional business factors, so that the presumption that a credit card default charge over £12 is unfair is not applicable, this does not necessarily mean that the current level of the charge is consistent with the OFT's interpretation of the requirements of unfair contract terms legislation.

 

But for example, where a card issuer has a policy of requiring customers to pay minimum monthly repayments by direct debits and offers credit cards only to customers that satisfy a relatively high scoring requirement it may be able to set a fair default charge at a level above the threshold.

 

Whilst the principles applicable to credit card default charges are applicable to bank account default charges, the threshold figure of £12 is not.

 

Regards

 

Andy

[cakey]

Sillygurl thats useful. Thanks andyorch - the date for trial has been put back till end of June. Anyorch there was a ruling by the FSA against Gmac for their mortgage arrears charges (which this relates to). As to why they think my particular mortgage arrears charge (despite being in the time frame) do not fit is beyond me - and they have failed to explain why.

[sillygirl1]

I've also got this which I am going to use in my shortfall case - in my book they have redeemend the mortgage and no further arrears are accruing so that is their little lot.

 

Kpohraror v Woolwich Building Society [1996]4 All ER 119

"Where two parties have made a contract which one of the has broken the damages which the other party ought to recieve (my view is this covers arrears fees and nortgage shortfall) in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, ie according to the usual course of things, from such breach h of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract as to the probable breach of the contract....

 

So basically it means if they have charged fees they would already have taken that into consideration when making the mortgage offer, and any further fees, charges etc are not fair nor reasonable.

 

Give them 'legal jargon' in return for their misquoted misguided efforts and leave them to sweat.

 

You have my support.

[cakey]

I now have a date to go to court next week. I am slightly concerned as the hearing is to look at the application by the defendent to have the case struck out - 90minutes has been allocated

[AndyOrch]

Hi cakey

 

Attend the hearing and present your skeleton Arguments which your P.o.C is based on.Use any case law you intend to rely upon.

Have they entered a defence?

 

Regards

 

Andy

[sillygirl1]

Don't forget to mention that the original creditor is in administration and this has gone through several companies trying to bleed you after they have taken the stone, mine has been through

 

Kings Legal

HL Legal (or rather Illegal!)

Optima

 

to name but a few.

[cakey]

andyorch yes they have presented 55 pages of defense plus similar amount explaining why they want the case setting aside.

 

I have now received a letter from them stating around £2100 in costs they will be asking for..... I thought the whole point of the small claims court was that "The court may not order a party to pay a sum to another party in respect of that other party’s costs, fees and expenses" I assume they are just trying to intimidate me?