claim against Mortgages plc - Court directions help needed,

[griffiths5]

I need some help before a court date with an order from the courts with directions,

[honeybee13]

Hello there.

 

Have you posted about this before please? If you had, a link is likely to be useful.

 

I imagine the guys will need more details, but I'll leave them to ask you when they get here.

 

My best, HB

[griffiths5]

Yes I have posted before about this, but not recieved any response, just getting a little worried about getting it in time, although the hearing is not until Feb. I have to get the direction to the defendant and court at least 2 days before the hearing,

[griffiths5]

I am looking for help with a claim against Mortgages plc, regarding the unfair charges applied to the

mortgage

account when in arrears.

 

The original claim started back when claims for unfair charges with the banks were being to court. I followed this route and it ended beiing stayed in the courts for 2 years. It has taken a while to get it lifted, It was only when I was aware that the FSA were taking action against the mortgages lenders for unfair treatment. I made changes to the POC

from a template from this site,

 

I have filed a allocation questionaire recently,

The claim is for less then £2000, but the defendants solicitors want the claim struck out and have also requested a fast track proceedure.

 

The claim was presented back during the bank charges period and ended up being stayed, whcih lift some 12 months ago.

 

Recived an order from the court, with a date for a case management conference 21st Feb 2013

 

I have to provide information 2 clear days before the hearing.

 

(a) a case summary with suggested directions which the other part shall attempt to agree

(b) a statement of the issues agreed by all parties

© a written estimate of the costs incurred to date with an estimate of the total costs if the action proceeds to trial.

(e) if either party intends to apply for directions, which is not agreed, written submissions shall be filed and served by both parties not less than two clear days befort the hearing

(f) The District judge is prepared to consider and, if appropriate to aprrove, agreed direction in advance of the hearing, but the case management conference shall not be cancelled unless such approval has been notified to the parties beforehand.

 

 

Mortgages Plc also claim that the account was with their sister company mortgages 2,

but all the correspondence, and

mortgage

payment were made to them.

 

 

[griffiths5]

I have now received an application notice from the defandants, which i assume will be heard at the hearing, Do I ask them for the directions, as I have none to produce, taken some advice from a solicitor and he said to ask them to send them for my concideration and then respond.

[AndyOrch]

Application Notice requesting what griffiths?

 

Regards

 

Andy

[griffiths5]

They are trying to get the claim struck out, The have a list of reasons, Claiming that we took mortgage out with mortgages 2 limited a sister company, refering to the unfair bank charges and the out come of the test case,, failure for the correct service of documents the correct address, (same company but an address in Scotland) How much do you want to know? They have raised 15 points

[AndyOrch]

Well you asked the question and requested help so its up to you how in-depth you explain...but up to me asking the above question the Forum wasn't even aware what the application was made for.

 

 

So you don't need help with Directions you need help in responding to an application to strike out your claim and how to submit a Witness Statement in objection.

[griffiths5]

I still have not responded to the order given by the court regarding the directions, being unsure did ask a solicitor how gave me some help and his services were free over the phone which I thought was good of him, He just suggest write to them and ask them for their direction for conciderations. He explain that they were employed by the defendant and were legal experts and had a responsiblity not to mislead me or the courts and really the ball was in their court to produce the directions, I was about to write to them when I had the letter yesterday out of the blue, and I did not really understand what was going on.

 

They have filled out a N244 form, and a draft order,

 

The have requested to substitute Mortgages PLC with Mortgages 2 Limited as the Defendant, even though all correspondence, payments etc where dealt with by Mortgages PLC.

 

I am happy to provide all the details of the order if that will help.

 

They covering letter which part of it reads

 

1 Our Application for Strike Out/Summary Judgment can be concidered by the District/Deputy District Judge at the earliest possible oppertunity; and either

 

2. The hearing of our application be dealt with prior to the CMC listed to take place on the 21 February 2013; or alternatively

 

3 The application be heard at the CMC on 21 February 2013 if the Court is unable to list it for the hearing prior to then

 

I f I do not to respond to this before the hearing I will need help

[AndyOrch]

Ok the biggie here is the change in Parties.....CPR 19 :- http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part19.

 

Ask yourself why the change.The rest of the the order is self explanatory in preparation for the Case Management Conference.

 

What are the particulars of your claim and what defence did they submit?

[griffiths5]

The claim started back in 2007,

 

I used the bank charges format at that time, and it was stayed until the test case results came form the courts, I fully expected it to be struck out at that time.

 

After further investigation I found that the fsa had been find mortgage companies for this kind of treatment to its customers.and also came across a letter in you library which I sent to the courts.

 

I has a hearing with a QC , who explained to me that I needed to change the particulars of claim and he gave me leave to reinstate the claim. Giving it a another go I wrote to Mortgages PLC again and also the FOS but Mortgages PLC used the time out on the original complaint.

 

Again another brick wall and really did not know what to do, until I came across a new particulars of claim on this site, and further evidence from the FSA , I asked for the case to reopen and had a hearing with the QC again, Mortgages PLC did not turn up.

 

This was party the courts fault as it had got case numbers mixed during the stay with another claim I had put in, and Mortgages PLC had closed the office I was in

communications with up until June last year.

 

The found the new address in in Skegness , I informed the court and they sent out the papers again, and accepted my change in POC. Initially they did not respond but after a second record letter the solicitor wrote to me, which was there first acknowledgment of the court case.

 

The changes in the parties is odd because it has only been Mortgages plc who have responded to any letters and it was they who sent me the full SAR last year, and it was they who communicated with the FOS, and we paid the mortgage to them.

 

The change is obviously to get the cliam struck by saying Mortgages PLC was not the lender and their sister company Mortgages 2 LTD were, who I can not find anywhere on-line or records of them. I thought from the being Mortgages PLC would have made mention of the fact I was dealing with wrong company.

 

There defense is, That it come under the test case , quoting Office of fair Trading v Abbey National PLC, reference to UTCCR , Address was incorrect for servis, The defendant is Mortgages 2 Ltd , That they first heard of it was by chance, and have received not paper work, we accepted their standard terms, That really it in brief

 

I not sure if this is of any help,

 

Many Thanks

Edited January 22, 2013 by honeybee13
Spacing.

[griffiths5]

Have I used the correct POC from the library on the site, relating to reclaiming the charges and fees that the mortgage company applied to the account, Also do I need to respond to the application notice before the hearing or can it be dealt with at the CMC

[AndyOrch]

Having not seen your P.o.C I really cant comment.With regards to the hearing you may submit your own WS in response (pre hearing 7 days)

[griffiths5]

This is the template I found in the library,

 

 

In the XXX county court

Claim number XXXXX

 

 

Between

 

 

 

XXX (claimant)

 

 

and

 

 

XXX (defendant)

 

 

 

 

 

 

 

 

Particulars of Claim

Unlawful Charges

 

1. The claimant had a mortgage agreement with the defendant dated XXXdateXXXX concerning a secured loan of £XXXXXX
   
2. The said loan is subject to the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR)
   
3. The defendant is statutorily bound by Financial Services Authority regulations – mortgage: Conduct of Business rules (MCOB) contained in the FSA Handbook, implemented under the Financial Services and Markets Act 2000
   
4. The mortgage fell into arrears after the claimant fell into difficulty and was unable to keep up the repayments as required by the mortgage agreement.
   
5. The defendant levied mortgage arrears charges against the claimant.
   
6. The defendants 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 defendant's statutory duty to treat their customers fairly contained in MCOB
   
10. For these reasons the interest charged on the unlawful charges is also unlawful
    

Other Unfair Treatment

 

 

1. The defendant has also levied charges in respect of counsellor visits.
   
2. The said counsellor visits [did not take place as claimed by the defendant or at all]
   
3. The fees for the said counsellor visits were levied at a rate which exceeded the actual costs of the visits
   
4. By virtue of the above, the defendant has treated the claimant unfairly and in breach of their obligations under MCOB
   

The claimant seeks the return of unlawfully levied charges plus associated interest– £XXXXXX

 

The return of unlawfully levied counsellor visit fees – £XXXXXX

[AndyOrch]

Ok P.o.C seems detailed enough so you now need to prepare your WS in objection to application and expand on your Particulars with the relevant legislation/T&Cs/Case Law and attach as exhibs as referral and reliance.

 

Regards

 

Andy

[griffiths5]

Many thanks Andy

 

My concern is the bank charges test case will be the overiding factor in this, I have been trying to find out if that decision applies to mortgage arrears and admin charges, I have plenty of information from the FSA with copies of the notices given to Gmac, Swift etc, The biggest worry is paying cost to the other side, I have had experience of Fast track before, although this should only be a small claims.

[AndyOrch]

Costs will be minimal in SCT....Try to push the MCOB/UTCCR argument backed up by Unfair Relationship:-

 

http://www.oft.gov.uk/about-the-oft/legal-powers/legal/cca/CCA2006/unfair/#.UQFAEB0025I

 

Regards

 

Andy

[griffiths5]

Ok many thanks for your help

[griffiths5]

I have produced the witness statement, can it be a joint one signed by both of use as the claim is our joint mortgage account, or shall I prepare two ,Will I need to do an affidavit ?

[AndyOrch]

Is the claim against joint names? You dont need an affidavit..hence the WS.

 

Andy

[griffiths5]

The Claim has both our names on it as it was a joint mortgage account at the time, I have been doing a little research and Mortgages 2 limited , Mortgages 1 and a couple others are part of Mortgages PLC, which is also part of Merrill lynch, They also suggest in their defence that we should have sent all court papers to the head office in scotland, which is again Mortgages PLC, I Sent all communication etc to the address in England.

[AndyOrch]

One WS it is then..both sign.....

[griffiths5]

Their Solicitors have written asking for a copy of the Allocation questionnaire by the 15th, I did not keep a copy of the original that was sent to the court. Is this a problem?

[unclebulgaria67]

Their Solicitors have written asking for a copy of the Allocation questionnaire by the 15th, I did not keep a copy of the original that was sent to the court. Is this a problem?

 

Don't think so. Just phone or email them saying that this has been sent to the court and that you don't have a copy.

[griffiths5]

I have received a cost summary from the defendants solicitors, which is about £8000, My claim is less then £2000, I would assume their hoping to get a fast track decision, Its unlikely they would get a fast track case, also I would think that as I am not a skilled legal expert then the overiding objectives in CRP 1.1 would apply