Birmingham Midshires Erc So It Begins! **SETTLED - 3/4 paid **

[zootscoot]

Biffa,

 

This is a response to their defence. Have you stated your case?

 

Zoot

[biffa1965]

Zoot i thought the statement was my case.....bugger what have i missed out here !!! ive already submitted my bundle.......help !!!

[biffa1965]

zoot i thought the claim was clearly apparant in the initial mcol and subsequent corresponce im assuming i had to spell it out on an additional statement.....bugger ! the deadlne was friday ..thought i had covered everything

[paulpb123]

Yeah Biffa, but their lot aren't going to be sticking to the deadline and I'm sure you can submit further docs if you do it quickly.

[zootscoot]

Don't forget you as the claimant will be making the opening statement and therefore set the scene giving the factual background of the case.

 

eg.

 

the Claimant entered a mortgage contract with the Defendant on xx/xx/xxxx account numberXXXXXXX

 

The mortgage was conducted on the defendant's standard terms and conditions. (see item x of the doscument bundle) Included in the terms and conditions were clause XX and clause xx.

 

The claimant, in breach of these conditions terminated the mortgage on xx/xx/xxxx. The defendant charged the claimant an early redemption fee of xxxx. Which was paid on xx/xx/xxxx in order for the defendant to redeem the mortgage.

 

The claimant wrote to the defendant on xx/xx/xxxx requesting a breakdown of the fee charged.

 

The defendant responded to theis request on xx/xx/xxxx

etc etc.

 

Best get something written up sharpish and hope the court will accept.

[biffa1965]

cheers Paul, i assume a stating of case is merely a statement outlining my claim and the legislation to support it, also perhaps the circs surrounding the the re morgage and the reasons for it., explaining why sub prime product etc.....help...lol

[biffa1965]

on to it now Zoot, lets hope the court will accept tomorrow...i know Bm will not have provided their bundle, theyve told me themselves

[zootscoot]

In true Blue Peter style here's one I produced earlier. Don't do anything with it yet I've got to update a little.

1. The claimant had a mortgage account with the defendant between the periods of xx/xx/xxx and xx/xx/xxxx. Account no. xxxx
   
2. The defendant advanced £xx,xxxx.xx to the claimant and the claimant undertook to repay the advance by monthly instalments over the period of xx years.
   
3. The claimant terminated the contract on xx/xx/xxxx.
   
4. The defendant levied a charge for the early termination of the contract of £X,XXX.
   
5. The claimant was in breach of contract by terminating the contract before the contractually agreed period which provided that the mortgage would terminate on xx/xx/xxxx.
   
6. This breach related to an express term of the contract 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 xx/xx/xxxx as evidenced by the final redemption statement. This date is clearly well before the contractually agreed date of xx/xx/xxxx and thus represents a clear breach of the contract.
   
7. 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 xx years, the claimant was clearly under a contractual obligation to pay monthly installments to the defendants and clearly has not made such payments since the redemption of the mortgage.
   
8. The claimant understands the early repayment charge was levied pursuant to an express contractual term. The term 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. This term merely anticipates a breach and does not represent the exercising of a right under the contract.
   
9. The claimant further submits 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 Co Ltd [1962] AC 600.
   
10. In the event that the court is minded to hold that the claimant was exercising a right under the contractual clause xx of the mortgage agreement as oppose to breaching the contract, the claimant contends that the clause XX is 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.
    
11. 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. In this regard the claimant would rely upon the judgments of Lord Denning and Lord Devlin in Bridge v Campbell Discount ltd [1962] AC 600
    
12. Accordingly following para 5-11 above, 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.
    
13. The claimant submits that the early repayment charge is unlawful at common law. A contractual term which provides for a specified amount payable in the event of a breach of contract (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 lawful liquidated damages clause. A clause which is excessive in relation to actual losses is a penalty and unlawful Dunlop Pneumatic Tyre Co. Ltd. v New Garage & Motor Co. Ltd. [1915] A.C. 79.
    
14. 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.
    
15. The claimant contends that the clause on which the defendant relies upon to levy the ERC is unfair and represents a disproportionate penalty under the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). The account falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as we are consumers. 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. Paragraph 1(e) of schedule 2 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 submits that this is the position regarding the Early redemption charge.
    
16. In the event that the clause relates to the defendant recouperating costs incurred to indemnify a third party, the claimant contends that the extent to which the clause are unfair under s.4 Unfair Contract Terms Act 1977
    
17. The claimant submits that the charge represents a disproportionate penalty. A fee calculated by terms of a percentage of the sum paid 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.
    
18. 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.
    
19. Accordingly the claimant claims :

a). The return of the £xxxxx representing the ERC

 

b) Court costs of £xxxx

 

c) Interest pursuant to section 69 County Courts Act as set out on the attached list of charges or at such rate and for such periods as the court deems just

[biffa1965]

i love you yer know Zoot !

[zootscoot]

Here it is!

 

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/61550-witness-statement-statement-case.html

[biffa1965]

THANK GOD !!!!! The Liverpool county court has accepted my statement of case. and i have managed to submit the additional disclosure to the midshires. The courts have also confirmed that the midshires have failed to disclose their material and as such i will be submitting a form N244 Requesting a strike out of the defence, il keep yer all posted...biffa

[Les Gunn]

Brilliant news Biffa - my strike out hearing with SPML is on Friday so this really gee's me up!

 

[biffa1965]

Les what did you put on your N244 ? did you fill out the back on merely just applied for strike out on first page

[biffa1965]

N244 Completed requesting defence to be struck out and judgement be made in my favour. the birm mids have failed to uphold the judges orders for disclosure with 14 days. have to say folks Liverpool County Court were brilliant today...very helpful even gave me advice on how to strike em out.

[biffa1965]

Folks in light of the developments of the last 24 hrs i can honestly say ive never felt so down. i now feel as if my only chance of victory in this case is if the District JUdge adheres to my request and strikes out the midshires defence. unlike Ukavaiator my claim is being dealt with by BM legal team and not D.L PIPER. At least up to now they are !.Liverpool county court have told me to expect a decision re the striking out application next monday.....heres hopin.il keep yer all informed as usual....biffa

[MARTIN3030]

Chin up Bifa I am not far away and would have come but am in Stoke tomorrow.

Will see if theres others about here from the pool who can maybe support.:DWhat date is the next app ?

I think we may be able to sort something.

[ukaviator]

It's a good job you are still with the team at BM really. My case was the first of many to be sent to DLA Piper. The ' no breach ' argument is what they rely on to win their case. The Barrister i spoke to in the Cranfield bar the other day told me that. Hope you whip em good.

 

Uk

[biffa1965]

Thanks Martin for the offer mate, im not actully in court til 21st march but as far as i know im the next on CAG shduled to be heard V the Birmingham Mids. as ive said before i just hope mt request for striking out is successful. to date there has still been no sign of teh BMs dislosure and i fear there wont be any sign of it til at least the 7th Feb. NOTE DISTRICT JUDGE ORDERED FULL DISCLOSURE DEADLINE LAST FRIDAY 26TH JAN 2007.I suspect the BM will attempt to apply for an order for extra time to prepare bundle. Hence the reason i wanted to get in there early in an attempt to strike em out. luckily the judge granted my request for disclosure order. .................Biffa

[zootscoot]

There's also another BM settled case to add to your list!

 

Best of luck

 

Zoot

[biffa1965]

hopefully Zoot, hopefully..iam aware of UKavaitors success, he was lucky enough to have been offered a deal earlier in the claiming process, ive had no such offer. But i remain upbeat the District Judge will strike out the defence and grant me judgement. after all the Bm have defied his court order re disclosure

[TideTurner]

Biffa, I'm in the location and have an extreme case against BM at the moment. If you need support, I'll be there. Don't put up with any head games (or lack of their ability to deal properly with your case). They have put forward heroes in the past who have been shot down. Have a break and wait for disclosure - I have requested the same with HBOS (BM's owners) have refused me all kinds of info.

 

PM me if you need a Court buddy, I'll fill you in on things BM aren't saying.

 

Tweaking my N1 and will probably file next week.

[biffa1965]

Cheers Tide, to me honest mate im on tenderhooks at the minute, my application for striking out went up to the judge today, ive been told bt Liverpool county court to expect a decision on monday as to wether they will strike out the defence due to BMs faliure to disclose by 4pm last friday. to be honest they still havent disclosed. unlike Ukaviator my claim is not being dealt with by DL Piper.its still being dealt with by HBOS at Trinty Rd halifax Iam also fully aware that the legal rep dealing with my claim is on her hols till 7th feb so iam assuming upon her return she will apply for extra time to submit their bundle. just hope the judge as as struck em out by then. My court appearance is on 21st March would welcome all the support i can get but hoping it disent go that far. mind you i did originally request judge order full dislosure so lets see what happens.....thanks for the support.....Biffa

[TideTurner]

Biffa,

 

Holiday my backside. Why does an organisation the size of HBOS not have somebody else to cover this, or why have they not farmed it out a firm of Solicitors if they couldn't cover it?

 

They were aware of the timescales. If you had a judgement against you and you applied to the Court for a set aside on the grounds that you were on holiday, what reaction do you think you would get from the Judge?

 

You're in a good position, if they had a defence, they would have had it covered, guaranteed.

 

PS - Watch out for the man with the tan!

[biffa1965]

phoned the courts today, file still with the district judge

[paulpb123]

Biffa,

Got everything crossed for you mate, let's hope the judge does what's right.

Paul