Charbydis v Platform *Claim struck out in court*

[livelylad]

Sorry to hear this Charbydis.

 

Michael.

[Charbydis]

The claim for the ERC was struck out and the claim for the failed direct debit struck out as the judge found that £15 was reasonable.

[Guest Zooman]

Reading this and seeing

 

"I would say ask by all means but if your mortgage had a clause like mine don't bother filing a claim as they will wheel out the legal big guns and you will foot the bill."

 

The mortgage indemnity clause is a standard clause in nearly all secured loans, regardless of the lender (I know of no high street lenders who do not have this in the agreement, in fact I will go as far as saying no lender I know off does not have this in the agreement).

[Charbydis]

You're probably right. I was just blowing off steam based on my experience though I wouldn't go after a mortgage company again.

[Guest Zooman]

I think the Judge has done your a favour (I know it may be hard to see just, now), if he had allowed the issue of the penalty charge to continue this may have well incurred further costs, and with already awarding large costs he will have had the mindset to avoid making more monies for lawyers.

 

This case also highlights the courts willingness to penalise litigants who pursue unmeritorious claims, applications and issues, his is evident though out the courts and is firmly being pressured from DCA. I know this seems unfair to some, but this is being done to protect our society from a claim culture like that of the USA.

 

As to the issue of track a mortgage company may well be able to recover its legal costs in all tracks due the indemnity clause, as the clause in effect have waived you right to costs protection in any track. Most case law surrounding mortgage claims and cost, comes from the mortgage company being the claimant in home repossessions and as such the issue of which track is not an issue, to fight the issue of costs when the mortgage company is the defendant in the small claims court and then win, may well cost more than the costs that where to be paid, as the mortgage company are very likely to pursue this throughout the system until they get the decision they want or the House of Lords decide the matter.

 

I hope you claim acts as a reminder to all that bringing unsound claims has risks attached to it, as the courts are unwilling to give these claims much leeway when it comes to costs.

 

There is a culture for people recommending issuing claims on this site for all sorts, when they are unmeritorious this is seen very much with the debt issues (including bailiffs), old CCJs and credit records as well as mortgage companies. I think all those who are considering taking one of these actions considers taking advice from a solicitor and does not just rush in.

 

This site can be likened to an army (in fact a resistance) and our army has made great damages with bank penalty charges and is fighting a sound war, and with any war there will be casualties and not ever battle can be won, the trick to an armies success is not to charge and count numbers but to use tactics and know what fights it can win and withdraw from those it cannot. For those already engaged in a skirmish that is not sound there is no dishonour in tactical retreat with a well placed rear guard.

 

I hope we can see the end of these cannon fodder claims, and use our resources to further the end goal of having the government set fair terms for us.

 

(to Charbydis I have your PM and will send you my mobile number, I am not having a go at you but warning others, I am sorry to use your thread like this but people need to know of the risks they face)

[tallchap]

As someone who is part way through the court stage, the fact that mortgage companies might intend on appealling if they lost is disconcerting to say the least.

 

From my readings no-one to date has won an ERC claim in court (please correct me), all the victories have been out of court settlements

[alisonf]

Charbydis,

 

I am so sorry to hear this.

 

TallChap,

If you can back out now do. Karnevil wrote a good letter which is in the "Important ERC claiments please read" post. I really do not want to see anyone else left with big costs to pay.

[Charbydis]

I have received the court order stricking

[Charbydis]

I have received the court order stricking out my claim and ordering me to pay costs of 5792.95 by the 5th March 2007. I am about to send my financial statement and offer of payment to Drydens I can afford about £5 a month at the moment. Has anyone done this before? Can they give me any pointers?

I know there are probably others in greater need than me but anyone who feels like contributing my PayPal email address is [email protected]?

Thanks for listening.

[Les Gunn]

Sorry to hear your case Charbydis - we all nearly got there, but were felled at the final hurdle.

 

We've not lost though - re-group and keep fighting, is what I say.

 

I'll be happy to send some money towards your costs - will sort it this weekend.

 

[Charbydis]

Have finally heard back from Dryden's. Platform have rejected my offer of £5 a month initially and want £60 a month plus a voluntary charge over my share of the equity in my house. I suppose I have to agree but I am going to make sure as many peoply know about this poisonous clause in their mortgage contract and may be some good will come of it.

[Robertxc]

I wouldn't voluntarily agree to a charge on your house. Offer them the £60 per month, and just start paying it. It will be difficult for them to insist on a charge if you're paying them the amount they request.

[Charbydis]

I have sent them a letter saying I will pay the £60 a month and asked for account details to pay to and left it at that.

[Charbydis]

I need some advice: Dryden's have written back saying that £60 a month is acceptable but they insist I agree to the voluntary charge or the deal is off and they will commence enforcement action. Can someone tell me what I should do. I am planning on moving house asap inorder to improve my financial situation and don't want anything getting in the way of this. Could a voluntary charge stop me doing this? Once sold there is likely to be little equity available so my share will be small and moreover shouldn't my other creditors also have a right to it.?

[gizmo111]

I need some advice: Dryden's have written back saying that £60 a month is acceptable but they insist I agree to the voluntary charge or the deal is off and they will commence enforcement action. .?

 

 

Commence enforcement action for waht exactly - for you to pay £60 per month? As Robert said above it would be a bit difficult if you are making the level of payments that they have agreed.

 

Can someone tell me what I should do. I am planning on moving house asap inorder to improve my financial situation and don't want anything getting in the way of this. Could a voluntary charge stop me doing this?

 

A charge could only stop you in theory if it put you into negative equity.

 

Once sold there is likely to be little equity available so my share will be small and moreover shouldn't my other creditors also have a right to it

 

Your other creditors will be down the pecking order after you have paid Drydens and your mortgage and any secured loans off.

[Charbydis]

Their letter says that if I don't agree to the charge I they will not accept the payments. Would it be possible to move house and have the charge transferred?

[zootscoot]

Generally a charge must be paid off when the sale goes through. You may be able to negotiate a transfer of the charge but its unlikely they would agree.

 

Write back telling them you think that it is unreasonable for them to insist on a charge on your house before you have failed to make a payment. If they continue to refuse a reasonable offer of payment and take proceedings against you they run the risk of having to bear their own legal costs in any such proceedings under the Overriding Objectives. In the event that it did go to court the court would only state that you have to pay what you can afford to pay which is likely to be less than they are demanding from you. Charging orders are generally only imposed by the court where someone has failed to keep up with an agreement to repay.

 

I'll do a letter for you later when I have a little more time.

 

Best wishes

 

Zoot

[Robertxc]

Charbydis, this is a time for a steady nerve. The main legal obligation you have to them is to pay them money, not give them a charge on your house. They're asking for £60 per month to meet your obligation, so that's what you should give them. There's no contractual obligation on you to provide a voluntary charge (hence to word 'voluntary'), so providing you stick to the £60 per month it's difficult to see on what basis they could take enforcement action. I think it's just bullying tactics. A word of caution however - if you agree to £60 per month you had better stick to it, or they'll almost certainly come after you very aggresively indeed!

[zootscoot]

Yes Charbydis, do ensure that you are able to meet the payment that you offer otherwise you will be back to square one. There is a budget planner in the debt forum located on the second page of the letter templates. Use that to work out how much you can afford to pay and send a copy to Platform. A suggested letter for you to send:

Dear XXXXx

Thank you for your letter of xx/xx/xxxx. I am very disappointed that we seem unable to reach a satisfactory compromise in this case. I do feel that your insistence of a charge at ths point in time is rather presumptious given that I have not as yet reneged on any agreement to repay. As I have already explained, I can only afford £XX per month at the present time. This is the only realistic payment proposal bearing in mind my personal budget. Please find enclosed my personal budget plan.

 

You have stated in correspondence your intention to commence proceedings in the County Court against me. The commencement of legal proceedings under such circumstances could be counter to the ‘Overriding Objectives’ of the Civil Procedure Rules. You will be aware that the ‘Overriding Objectives’ underpin everything the court does. Moreover, paragraph 4 of the Protocols Practice Direction states that in cases not covered by an approved pre-action protocols, the court will expect the parties “to act reasonably….. in trying to avoid the necessity for the start of proceedings”.

I would suggest that your consistent refusal to accept my offer could be viewed as unreasonable and I would ask the court to consider this matter with reference to the ‘Overriding Objectives’. This could leave you liable to paying for your own costs. I’m sure that we could sort this without the need to take the time of the courts and the offer of £xx per month, is of course still open to you to accept.

Yours faithfully

 

XXXX

[Guest Zooman]

I would say that what would happen in the ideal world, but we do live in the ideal world and if it went to court you would just face more costs, be careful here this is a reasonable request on thier behalf.

[Bona]

Do you have a pay pal account would like to help cant afford much but could manage a months payment

[Charbydis]

I sent them a budget already, they have sent me a further letter saying they will settle for half as a one off payment but I doubt I can raise that in time so I will go down the £60 a month line and see how things work out.

My Paypal account is [email protected] for anyone wishing to contribute.

Thanks you in advance.

[dolly]

Just seen this - Charbydis I have no money in my paypal account at the moment, but if you want to PM me your address I will gladly send you a cheque.

 

Debbie

x

[Charbydis]

Having made two payments so far, received letter from Drydens saying unless they hear from me regarding agreeing the voluntary charge by 4pm 4th May 2007 they will be seeking their clients instructions in relation to applying for a charging order through the court. The letter was dated 27th April 2007. They did however included bank details for Platform so I have set up a direct debit.

I have written back saying I have been very busy and unable to obtain legal advice yet but have set up the direct debit.

[Charbydis]

Latest development: Letter waiting Friday evening saying unless they heard from me within 7 days of receipt re: voluntary charge they would be taking instructions.

Nerve still holding - just!