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

[biffa1965]

to be honest folks i havent actually received any paperwork from the court all the information ive received is when ive phoned the court up myself. so in effect ive received no paperwork at all since paying the £100 processing fee. So when i phond the court the lad told me that all paperwork had to be served by 26/01/2007. i have therefore assumed it must be small claims

[TideTurner]

Biffa, looks like you have a piranha in the Pool. Late march? Strange. Judges don't make statements like the abuse of process one in Lincoln without having reviewed numerous cases. they obviously want your full details quickly.

[biffa1965]

Cheers Tide il be gettin on to it straightaway, mind you they could have at least written to me, i wouldnt have known about it if i hadnt phoned.from the scant information ive given you, what do you think, is it lookin like fastrack??

[TideTurner]

If I'm honest, I'd phone the Court again and ask them to clarify why they want this info by that date without written notification.

 

Have they filed a defence? My gut feeling is that your case will be allocated to a fast track and dealt with in bulk with other cases in one sitting.

 

The Court Admin will then be under pressure to 'group' similar cases which will be heard together.

 

Try phone the Courts again and clarify some timescales. Also clarify the Defendants position with respect to a defence.

 

This will be the same Court I will file in on Monday.

[biffa1965]

Folks spoke to court today and confirmed small claims court hearing at 11.30hrs 21st March, Order has been made for full disclosure by 26thy jan 2007...well here goes !!!

[biffa1965]

can anyone help me with the bundle please......help !!!!

[gizmo111]

can anyone help me with the bundle please......help !!!!

 

Course we can - have a look in the stickies zoot started one - and then let us kno what you need after that.

[biffa1965]

im strugglin to print off the adobe stuff that zoot has posted in the stickies any advice, trying to get me bundle done....help!!!!

[biffa1965]

what a stressful day ive had today trying to assemble this court bundle. at the moment im looking for any threads which actually show me what the bundle is supposed to consist of.

As for the claim itself its been an unusual day, phoned the legal rep for Bm who is dealing with my case, it appears shes on leave til 7th feb, spoke to another solicitor who hinted that should i afford a degree of mediation then this matter may not end up in court, must admit iam at a loss as to what flexibility they want me to show ! we re in court on 21st march !!!. anyway im gettin back to this bundle its driving me up the wall !!! lol

[zootscoot]

Have a look at Bookie's as a starting point and instructions.

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/33060-basic-court-bundle.html

 

Take out anything you do not think is relevant for mortgages

 

Have a look at the stickie in this forum entitled 'for the bundle' and add those items.

 

Have a look at the revamped response to strike out. Note all the cases in there. If you do not have them try search on this site:

 

British and Irish Legal Information Institute

 

If that fails try googling.

 

If there are any you can't find post on here and I'll see if I can locate them.

 

You should include:

 

A copy of the mortgage terms and conditons

The mortgage offer

Any correspondence between you and the defendant

All court forms including claim form (or print out from MCOL), defence etc.

Statement of case

All cases

All statutes

Any other documents you intend to rely on eg from OFT, FSA

If you want to demonstrate the difference between charges, fees, interest rates between sub-prime and High Street lenders any information you can gather on these.

Any information regarding lack of choice of mortgage products to those with adverse credit or self cert.

 

Hope this helps

 

Zoot

[ladymoonray]

Zoot, you are an angel. That's exactly the information I'm going to need.

 

I know I said I was taking the evening off, but it appears I just can't stay away!

[biffa1965]

zoot tried pm in yer but as usual your a popular girl, what exactly can i include in my bundle in terms of statutes and previous cases? can i enclose a list of the successes youve recently posted in our stickies colum. i suppose it proves previous settled cases by BM ie lickthewall, and thunderpuss, just wonderin if a printout of that would be admissable as evidence

[ukaviator]

Hi Biffa

 

The legal rep you were dealing with, is it Rachael?.. She is on holiday, and the solicitor covering her work is sick. Tried to call them today for my requested paperwork. I have been passed over to DLA Piper. I should get a letter any day from them. I am spending all day Sunday at my PC sorting out my bundle and some other bits i have to do. If you need help just post on your thread.The stickies Zoot and others have added, the court bundle from Bookie, are all ready to print off. It maybe that you need to download the latest version of Adobe for your PDF files.

 

Uk

 

Uk..

[biffa1965]

Uk Howe yer doin ? me and Mrs Biffa are still up puttin finishing touches to the bundle, just about got it all sorted now, as you say the bulk of it has come from the areas youve covered. yep the solicitor is racheal...whats she like UK ? as i said earlier i got the impression they may want to mediate.

[ukaviator]

I thought they wanted to talk as they had offered me half at the start.

She then went back to BM to see if they would increase the offer. BM then sent my case to DLA PIPER,their Birmingham office.

Just waiting for their next move, i am itching to get infront of the judge.

Rachael seems very pleasent to talk to, has a lot of holiday though. She was off most of December, 2 weeks now. What a life..

 

Uk

[biffa1965]

Nearly finished now UK, me and the Mrs are slumped over the last top. ive decided to add to my bundle the list of successes featured in the stickys column. they are at least an indication that BM have paid out prior to court action on previous occassions. iam very much startin to believe they dont want to go to court (touch wood). besides il try and butter racheal up..lol

[ukaviator]

I don't think she will butter up easily. She's a Solicitor.

[biffa1965]

yep and i must admit ive never had much joy with solicitors over the years..lol

[biffa1965]

update....court bundles have been submitted tp Birmingham Mids and liverpool County Court.i await the next move

[UnhappyBunny]

update....court bundles have been submitted tp Birmingham Mids and liverpool County Court.i await the next move

 

Hey Biffa, what did you all include? Sorry I've been offline for a few weeks - have just had cruciate ligament reconstruction (ouch!).

[TideTurner]

Biffa, mine will go in against the same defendants, same court - good luck.

[biffa1965]

allo Bunny to answer your question my court bundled was subdivided into th following

1.personal statement

2.correspondence sent

3. corespondence received

3.case law

4.original court docs (mcol printout all court corres etc)

5.evidence of previous settled cases (used successes in stickys column)

[biffa1965]

allo Bunny to answer your question my court bundled was subdivided into th following

1.personal statement

2.correspondence sent

3. corespondence received

3.case law

4.original court docs (mcol printout all court corres etc)

5.evidence of previous settled cases (used successes in stickys column)

hope this helps

[UnhappyBunny]

Biffa, what does the personal statement consist off?

[biffa1965]

1. I am the claimant in this case.

2. I make this witness statement in support of my claim and in response to the defendants defence.

3. The Claimant agrees with the Defendant as to paragraph 1. Of the defence. It is not disputed that the Claimant had a mortgage account with the Defendant.

4. The Claimant agrees with the Defendant as to paragraph 2. and 3. Of the defence. The terms and conditions of the mortgage advance were contained in the offer of advance.(outlined in para 6.1 and 6.2) of the terms and conditions.

5. The claimant does not dispute the conditions outlined within paragraph 4 of the defence. The claimant fully accepts that the mortgage was redeemed prior to 01.06.2006. The Claimant accepts the contention that redemption of the mortgage was expressly provided for in the mortgage offer. 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, however, merely anticipates a breach and does not represent the exercising of a right under the contract.

6. The Claimant was in breach of a major term of the contract. The particular term in the mortgage which was breached was an express term relating to the period of twenty-five years for which the mortgage was to run. 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 or about 09.12.2004 as evidenced by the final redemption statement, and the defendant’s correspondence dated 10.11.2006. This date is clearly well before the contractually agreed date of April 2028 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 twenty-five years the Claimant was clearly under a contractual obligation to pay monthly instalments to the Defendant and clearly has not made such payments since the redemption of the mortgage.

8. In the event that the court were to find the said term as exercising a right and without prejudice to the above paragraph it is submitted 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. This case was decided upon the finding of a breach of contract. The finding of a breach of contract as opposed to the exercising of an option was based on the fact that to amount to an exercising of an option there had to be intention to exercise the option demonstrated by the hirer. When I terminated my mortgage early it was purely to be free from the burden of the contractual obligation. I was not aware that I was exercising an option to terminate but merely knew that if I did end early I would have to pay a penalty. If I am unaware that I am exercising a right how can it be said that I intended to exercise such a right. Two of their Lordships (Lord Denning and Lord Devlin) went further in their findings, holding that even had the hirer exercised the option, they would still be prepared to strike down clause 9 as a penalty and thus were of the opinion that Associated Distributors Ltd. v. Hall was wrongly decided. This, as a minority decision, however, I recognise as not being binding. However, it is the Claimant’s submission that the term relating to the early repayment charge contract 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. It is thus my assertion that such a term is simply 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.

 

As such, the clause can thus be seen as ambiguous as there are two possible interpretations of the 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:

 

(1) A seller or supplier shall ensure that any written term of a contract is expressed in plain, intelligible language.

 

(2) If there is doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail.

9. The Claimant denies the contention by the Defendant that the term relating to the early repayment charge is a liquidated damages clause. A contractual term which provides for a specified amount payable (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 liquidated damages clause Dunlop Pneumatic Tyre Co. Ltd. v New Garage & Motor Co. Ltd. [1915] A.C. 79. 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. Indeed the defendant has refused to disclose their estimate of losses and as outlined in their correspondence to the claimant dated 10.11.2006,they state that their charges are ‘commercially sensitive information’ and not to be divulged. The Claimant thus makes a respectful request to the court that disclosure of this information is provided to the Claimant forthwith to bring an expeditious termination to the proceedings.

10. In relation to paragraph 6.of the defence, the Claimant contends that if the Defendant complies with the Claimant’s request to provide a breakdown of losses to which the Defendant has been put to, it would reveal that the charge levied would in fact be revealed to be a disproportionate penalty under the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). The Claimant’s account falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as the Claimant is a consumer. 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. Under paragraph 1(e) of schedule 2 this 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 vigorously contends that this is the position regarding the redemption fee of £3,138.57 which the Defendant deemed fit to apply to the Claimant’s account. It is further submitted by the Claimant that the Defendant’s failure to provide such information is for the reason that such information would reveal that the term is in fact a disproportionate penalty. Had the Defendant been able to demonstrate that the charge was indeed a liquidated damages clause it has had ample opportunity to do so and the Claimant would not have need to initiate these proceedings. It is thus respectfully submitted by the Claimant that the Defendant’s defence be struck out as an abuse of process or in the alternative that an order to disclose this information is made so as to satisfy the Claimant that the charge is indeed a liquidated damages clause.

11. The Claimant accepts that the Defendant has provided a reason for imposing the charge. However, the Defendant has not given a breakdown of its actual losses nor provided a response as to how it came up with a genuine pre-estimate of its losses. Furthermore it is contended that the reasons thus far provided by the Defendant fail to take into consideration the duty of the Defendant to mitigate its loss in accordance with the principles set out in Payzu v Saunders [1919] 2 KB 581.

12. The Claimant contends that the early redemption charge represents a disproportionate penalty and a fee calculated by terms of a percentage of the sum repaid can not amount to a genuine pre-estimate of the Defendant’s loss. Moreover, the early redemption charge 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 his breach of contract.

13. In the premise of all the above, the Claimant vigorously denies paragraph 7.of the Defendant’s defence and respectfully submits that the Claimant does indeed have a legitimate case in relation to this claim. Indeed had the Defendant complied with the Claimant’s requests for information the Claimant would not have needed to seek redress through the courts.

 

Statement of truth:

I believe that the facts stated herein are true.

Dated 24.01.2007

heres a copy of my personal statement bunny