Me V Swift

[mrsfoot]

I have received defence from the above. with regards they say ERC is not a penalty due to a breach but rather a fee due to my eercising my right to end the contract??? Surely this is contradictory lol

 

Also i have received the allocation questionairre with regards to fees added to my ex mortgage with them and i have no idea how to fill it in....i have looked through site and cannot find anything. If someone knows where this info is or anyone can help i would be very appreciative.

[mrsfoot]

I have received allocation questionairre for the case 6CH04822. I am at a loss as tyo what i need to do to complete this. I have reveived the defence papers from Swift where they are defending all the claim. They have already paid me a small amount of money back as they had charged me over £1300 for a default notice, and yet they say the charges they added where not excessive!

 

Hope someone can help with this form and point me in the right direction in this site.

 

Thanks

[mrsfoot]

This should help:

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html

 

 

Thank you very much, was beginning tho think i would have to give up at this stage!!

[mrsfoot]

I have recieved the defence for Swift. It is relevantly straightforward, however there are few points i need help on if possible.

 

1. Do i need to adress each point in writing to the court or will this be what i rely on when i go to court?

 

2. it is denied that section 4 of the unfair contracts terms act 1977 has any applicability to the charges paid under the credit agreement. Section 4 (1) applies to prevent a consumer being liable to indemnify another person for negligence or breach of contract by that other person. (Defendant states they are the another person) The Defendant has not sought to require the Claimant to indemnify it for negligence or breach of contract by the defendant.

 

Query...am i not being made to indemnify the defendant by paying the charges??

 

3. The claim that the charges are unreasonable within the meaning of the Supply of Goods and Services act section 15. The credit agreement does not give rise to a contract for the supply of a service and so it is denied that provisions of the act are not applicable.

 

Query....Are they not supplying a service, by providing me with a mortgage?

 

hope someone out there has some clues and pointers for me, thank you

[mrsfoot]

Well my AQ has been handed in. Guess whose AQ landed on my doorstep today...yep day it was due into court Swift AQ comes in the post. They want the claim to go fast track as it over £5k. The costs are actually £4700 and only with the interest does it go over £5k. Plus the solicitors dont seem to knnow that Swift have also paid me £700 for the default notice they admit to over charging me for which takes it down to under £5k with interest lol ALSO in the post today was letter from Swift. They have admitted they charged me £70 court costs and want to repay it and attached a cheque for the amount. Why are they paying this...because the judge who heard that case said NO costs to be added to my account but they went ahead and added it anyway! So now i have 2 letters where they admit they over charged me...bring on the court hearing!! Please anyone who has had probs with Swift check how much was added.....cos they are not as legally honourable as they say (like we didnt know that lol)

[mrsfoot]

Hi all, just wanted to know has anyone been to court over ERC / mortgages charges yet? I know some have been paid out after MOCL and AQ's have been filed but is there any evidence of any going to court and winning?

[mrsfoot]

Quick update. I have my court date for this case. Friday 8th Dec we go to court. This si an allocation meeting as Swift have stated on their AQ they want it to be fast tracked, i want small claims so the judge wants to meet.....has anyone any ideas??

[mrsfoot]

Hi i have a case with GMAC who have not filed their AQ in time. Due date was 1/12/06 and having spoken to the court today it seems they have not filed...does anyone have any ideas or advice as to what is next??

 

Have revieved their AQ this afternoon, although court say they still not recieved their copy. Will this go against them?

[mrsfoot]

Allocation hearing today, judge has decided case must be heard fast track. CPR22.8 A-F was taken into account.

 

Can one of the mods please contact me, Swift want this in court, and have indicated they will take it to the highest court in land should they lose at fast track, this could be the case we are waiting for!

 

Mrsfoot

[mrsfoot]

£3836.78

[mrsfoot]

HI AFD

 

Thgank you for the advice, whjere about would i be able to find something on thjat topic so i could research it and write a letter requesting the info. Who would i send it to? When would i send it? Things along those lines.

 

Mrsfoot

[mrsfoot]

Thanks gizmo, very helpful. I have directions from Judge from yesterday:

1 Statements of fact to be filed.....what is this and whr can i find examples?

2 Standard discl;osure...again same questions>

 

Im really sorry about how daft i must seem i just cant figure out my next move, and HATE not being in control of this!

[mrsfoot]

tysm AFD, last question, as you must be fed up of me already, can i still send this even though the Judge has made directions?

[mrsfoot]

Thank you again! Will sit down tonight and set it out to be applicable to my case.

 

I have been looking at the CPR website, very informative!

[mrsfoot]

Hi AFD, have prepared the letter, is it possible yu could have a look over it for me, and give me some feedback on its contents

 

mrsfoot

[mrsfoot]

Part 18 sent off today, lets see what they make of that, or more what their solicitors think of it!

[mrsfoot]

HI quick update, have recieved reply to part 18 request. Letter as follows:

 

We refer to your request for further information on CPR18. We object to your request on the grounds that these are not matters that are appropriate to be set out in our clients pleaded defence and are matters for evidence, for which you will receive our witness statement by 12 January 2007.

 

Letter typed exactly as written.

In part 18 i requested:

1 I request that you supply a full certified breakdown of the actual expenditure incurred by Swift Advances, in relation to each of the charges levied to my account and detailed in the claim; this includes the following as displayed on spreadsheet attached to claim, although it should be noted this is not an exhaustive list and you should refer to the amended spreadsheet issued during the allocation hearing:

a) Legal Fee’s on all work completed by your legal department, solicitors etc

b) Default charge and the process of arriving at the original figure and the later revised figure

c) Production and delivery of letters sent to the address of the claimant

d) Thorough explanation, detailed accounts and process of arriving at the figures for the collection charges applied to the account

 

2 Where the charge is purely an administration fee applied under the terms & conditions of the mortgage, I request that you provide certified details of how this charge was set, and the calculations used in the process of arriving at this figure

 

Has anyone any ideas on the above? Do I now apply to the court for this information, although it does seem to read that they will be using what i requested as eveidence anyway? Id really appreciate some advice here guys, as Swift have already said they are quite happy to let this go to high court if i win as it will affect their whole pricing system.

 

Thanks

[mrsfoot]

bumpety bump!

[mrsfoot]

Thnks Gizmo, dont know what id do without u all lol

[mrsfoot]

Bump re part 18

 

Also have writtten my witness statement, is there anybody willing to have a look over this for me please

[mrsfoot]

Thanks Zoot, if you can pm me your email address i would be very grateful.

 

I have emailed Alan as you suggested, have not had reply yet but i know he has been really busy so dont want to bug him!!

 

Thanks again

[mrsfoot]

Allocation Hearing and what the Judge will be using as a criteria

When deciding the track for a claim, the matters to which the court shall have regard include ---

Amount of claim (under 5k normally means small track but not a certainty)

Nature of remedy (refund of the charges taken as they are unlawful within UTCCR's)

Likely complexity of the law (state here that it is not a complicated case as it is simply facts that it does not cost £XX amount of money to send a computer generated letter and other facts that are applicable to you case using the laws found in library)

Number of parties...not relevant unless you are taking them to court alongside other claimants

Value of counterclaim....which you will have been made aware of if your bank are counterclaiming. If they are not then this is irrelevant

Amount of oral evidence required. This should be none as all evidence should be in written form as it’s with regards to standard charges against your account and not charges that have been individually agreed between parties

Other parties’ interest...this is normally when the bank will have to make changes to way and what it charges and how this will affect others. Simply say this is a matter for the bank to justify their charges on your account

[mrsfoot]

Hi Zoot

 

Here are the full directions from the court:

 

1, There shall be standard disclosure by list between parties by 22nd dec.........completed

 

2, A defaulting party will not be permitted to rely on docs not dislcosed

 

3, Each party shall serve on the other the statement of all witnesses as to the fact upon which he intends to rely at trial. There shall be simultaneous exchange of such statments no later that 4pm 12 Jan 07

 

4, The witness statments shall stand as evidence in chief at trial

 

5, Evidence will not be permitted at trial from any witness whose statement has not been dislcosed in accordance with this order

 

6, Trial date set for 15 march 07

 

7, Not less than 7 days before the trial the defendant shall file a court bundle comprising of: an agreed case summary, pleadings, statments of the parties and witness to fact, skeleton argument and reports

 

8, The costs be in the case.

 

Just noticed i do not have to send my bundle in....is that right or normal?

 

Thanks again Zoot

[mrsfoot]

Oh i thought i had to also send my bundle to the court and to the defendant. Dont know now where i got that from

 

Also Zoot i have put the criteria for allocation hearings in post 38, i thought you might want to use it in the forum somewhere as i have not found anything like it on here yet

 

Thanks

[mrsfoot]

In my list i used:

 

Unfair Terms in Consumer Contracts Regulations (1999) – 10

(DD)—Analysis of Unfair Terms in Schedule 2 Group 5 - 2

(EE) -- The Supply of Goods and Services Act (1982) - 13

(FF) -- Unfair Contract Terms Act (1977) - 10

(GG) -- Office of Fair Trading Report April 2006 (OFT842) – 35

(HH)—Office of Fair trading document – OFT’s Action on Credit Card Default Charges - 3

(II ) -- House of Commons Early Day Motion (EDM 2227) - 2

(JJ) -- House of Commons Select Committee on Treasury

Second Report: ‘Transparency in charging’ - 15

(KK) -- Report by Kendall Freeman on Liquidated Damages (May 2005) - 3

(LL) – Document showing case law from : Dunlop Pneumatic Tyre Co Ltd

v New Garage & Motor Co Ltd [1915] AC 79 - 2

(MM) -- Case Law Reference: Alfred McAlpine Capital Projects Ltd

v Tilebox Ltd [2005] EWHC 281 (TCC) - 18

 

 

The Claimant will also make reference to the following case laws;

1. Murray v Leisureplay [2005] EWCA Civ 963

2. Wilson v Love [1898]

3. Lordsvale Finance PLC v Bank of Zambia (1996) QB 752

4. Bridge v Campbell Discount Co. Ltd. (1962)

 

I am claiming:

4 x Arrears charges of £50 each, 4 x Admin Fee when in arrears of £33 each time, (relating to clause D. If you pay us by any methods and we cannot collect the payment when we ask for it, you will have to pay a charge for this. This charge will include all bank and other charges we have to pay in order to collect the payment.

1 x Default charge of £1044.00 (which was subsequently reduced to £250 by goodwill once i had started claim). Relating to M.2a (see below)

Various costs for letters ranging from £35 - £100 (some for change of interest even tho they didnt apply to me as i was on fixed rate), Relating to clause L.1.if you do not make a monthly payment on the date iot is due, we may (as well as enforcing our right under this agreement) make a charge for each letter we sendto or receive from you or your agents or for each phone call we make over missed payments

L.2. We may change the monthly payment due form you by giving you at least 14 days notice, we may change it to reflect:

a)reflect the fact the interest rate that applies to your loan has changed

b) include any costs, charges or expenses that you have to apy under this agreement

c)to include any arrears in your current monthly payment

2 x collection charges of £1100 and £1374 (which they later decided they were actually something other than collection charges, and were actually £470 legal fee's for court appearance, 9 x £50 monthly arrears fees. The £1374 they later state in a further letter is now litigation fees for solicitors, who are in house as a side note).

M. As well as the charges we have specifically mentioned you must pay the following

1. All reasonable copsts and expenses we have to pay or decide to charge as a result of any term of this agreement or the legal charge being broken

2. All other reasonable costs and expenses we have to pay or decide to charge you in connection with this agreement or legal charge

The costs and expenses mentioned in this clause include

a) any costs and expenses we pay in legal proceedings (whether or not you are involved on them)

b) any other fees we pay, including debt counselling, collection agency, asset management and valuation fees; and

c) any of our own admin expenses (we may recover these by charging you a fee which we reasonable estimate to represent the cost to us of doing the work for which we are charging the fee)

 

 

No ERC at this stage as i wanted to claim charges back 1st.

 

Little side note, once i began this i discovered they had also charged me for a court appearance, of which the judge had ruled no charges were to be applied, and yet they did anyway. They have sent me the £70 cost for the day via cheque.

 

Hope this is helpful, thank you so much for all you are doing