Me Vs Nothern Rock ** WON **

[meled]

Ok I started moneyclaim against Northern Rock in October for arrears.

 

They acknowledged the claim but then I heard nothing from them until Weds when they sent a letter to the court asking for more information or they wanted the claim struck out!! I sent them the information required (basically it was a list of charges, which of course they have had!!). I sent this yesterday.

 

Today I have received a letter from them including the defence! So I thought I would post the defence.

 

Though does anyone know how long we get to send back the AQ as the court will probably send this out on Monday but we are away on holiday for 2 weeks and dont want to miss the reply date???

 

Ok the defence is as follows:

 

1. The Defendant is a company which carries on the business of a mortgage lender.

 

2. The Defendant offered the Claimant a loan of £XXXX by an offer of advance dated 24th June 1999, which the claimant accepted. The said loan was secured by a mortgage granted by the Claimant to the Defendant over ADDRESS for a term of 25 years. The claimant's account with the Defendant was numbered xxxxxx-xxxxx

 

3. The Said mortgage was subject to the defendant's general conditions ("the general conditions"), the Defendants Mortgage Conditions 1997 and the special conditions contained within the offer of advance. The Defendant will rely on the General Conditions, the 1997 Conditions and the Special Conditions at trial for thier full terms and true effect.

 

4. The Claimant is to particularise:

1. The charges allegedly debited by the defendant and the alleged breaches of contract.

 

2. The term of the general conditions, the 1997 conditions, the special conditions or any other document on which the claimant relies, which the claimant avers is or are unenforceable.

 

3. The calculation of interest.

 

5. The Defendant notes that although the claimant wrote to the defendant by letter on 25th September 2006 to which was attached a list of charges, the total charges referred to in that list total £6526.52, which is inconsistent with the sum claimed herein. The claimant has failed to send another copy of the list of charges, contrary to his statement in the particulars of claim.

I did originaly write for the ERC and charges, but we decided to persue the charges first and then the ERC

 

6. Pending proper particulars, the particulars of claim are denied, save as admitted herein.

7. It is denied that any term or terms of the said mortgage are unenforceable. If, which is denied, any such terms are unenforceable, then it is averred that the claimed as treated the said terms as binding upon him by his payment of charges.

8. It is denied that the claimant is entitled to the relief sought or any relief.

 

Well thats all of it, just have to hope there is enough time for us to fill out the AQ now as im prepared to fight!!!

[hagenuk]

You would normally get two weeks to return the AQ, so you may have to arrange something else if you are going to be away.

 

Aside from that, this defence looks to be perfectly standard but it might be wise to draft a reply and include a revised copy of what you are actually claiming.

[meled]

Ok, have arrived home to the AQ and had one day to complete it and get it to the local court - which is now done

 

But i have also had another letter from Northern Rock asking for further information under part 18.

 

This time they are requesting

 

1. Particularise each and every charge of which the claimant seeks to be returned in these proceedings

 

2. Particularise each and every breach of contract which allegedly gave rise to the said charges.

 

3. In relation to each of the said charges, particularise which term or terms of the mortgage the defendant (or other contractual document) is said to be unenforcable.

 

4. In relation to each of the said charges, paricularise what, if anything, the claimant considers to be the defendants loss.

 

5. In relation to each of the said term or terms, particularise why they are said to be unenforcable.

 

6. Particularise how the claim for interest is calculated.

 

Im slightly confused with what they are asking for as I have sent some of this information before hand. I have sent them a breakdown of charges more then 5 times now and so they know which charges im after considering they sent me the statements!

 

Still a bit jet lagged so cant get my head around how im supposed to particularise what i think thier loses are at present - but i have a few days so hopefully my brain will get back to normal before im supposed to reply...lol

[hagenuk]

A CPR Part 18 request is usually another stalling tactic but should be taken seriously. How much is your claim now since you have decided to go for the charges first and the ERC later?

 

If it is likely to be allocated to the small claims track CPR Part 18 does not usually apply and in any case, you need only repy to requests from the Court - not from the Defendant.

 

Try something like this, unless your claim is still over £5000 and you think that it might not be allocated to the small claims track.

 

Dear Sir

 

I Acknowledge the receipt of the defence posted on behalf of Northern Rock.

 

I am not prepared at this stage to answer the CPR Part 18 Request as I anticipate that the claim will be allocated to the small claims track and would not then expect to have to deal with a Part 18 request since these are specifically excluded under Part 27 unless the court orders me to do so of its own initiative.

 

Furthermore I consider that the CPR part 18 request is intimidatory and I intend to bring the intimidation to the notice of the court. However, for clarity, I confirm the charges I am claiming were applied to the following account:

 

Account Name:

Account number:

Sort Code:

 

Please also find enclosed a breakdown of all charges I am claiming.

Yours Faithfully

[meled]

I have this morning received a letter from NR in response to the letter I wrote above (thanks hagenuk)

 

As your claim has not yet been allocated to the small caims track, a part 18 request is not excluded under CPR part 27. Northern Rock Plc requires you to particularise your claim as detailed in the part 18 request in order to enable it to defend your claim accordingly.

 

Simply sending the schedule of claim for charges - is not sufficent detail for your claim.

 

If Northern Rock does not receive a response to the part 18 request by 2nd Jan it will apply to the court to have your claim struck out.

 

Northern Rock strongly advises you take independant legal advice in respect of the above.

 

Anyone have any guidance on how to word a response?

 

Thanks and Merry Christmas Everyone :D

[hagenuk]

Obviously I have not seen your particulars of claim, but provided that they are from the templates on this site then I would be tempted to send something like this.

 

 

Dear

 

Claim No: 6XX00000

 

I am in receipt of your letter of (date) regarding the above claim.

 

I note that you assert that my particulars of claim fail to disclose reasonable grounds for bringing a claim against Northern Rock plc.

 

I find this most perplexing. My particulars of claim clearly identify the account contract to which I am referring. It is perfectly clear that the source of the monies which I am claiming is derived from money taken by Northern Rock plc in respect of my breaches of the account contract and further, I have supplied a detailed breakdown of the charges on a separate schedule. In addition I have explained why I consider that the charges are unenforceable at common law. Finally I have made clear the total figure that I am claiming.

 

I will add now that the recent Office of Fair Trading report concluded that bank penalty charges are indeed excessive and in breach of the common law because they exceed the actual costs caused by my breach. Furthermore, as I am sure you are aware, this practice was roundly criticised recently by Walter Merricks, Chief Ombudsman as he commented on the way that complaints over charges are being handled by the banks and he went on to state that the banks should either pay the claims in full or demonstrate that these charges are not penalties.

 

I have clearly identified and stipulated the following;

 

1. The contract

 

2. The term of the contract in question

 

3. The wrong which I say Northern Rock plc has committed

 

4. The amount of my damage suffered

 

I fail to see what else you expect to find in my particulars of claim. Furthermore I would say that your defence does not answer my particulars of claim in any way and therefore this letter which, I am copying to the Court, is my formal request to the Court to grant me a summary judgement for the entire sum claimed.

 

 

This is provided of course that you have stipulated the above information!

[meled]

Thank you so much Hagenuk

 

I used a template from here and just changed it very slightly to cover the mortgage charges, I know that it must be fine as I used the same template to cover my court claim against Kensington and didnt have a problem I have just checked the moneyclaim wording and all those points are definately stipulated.

 

I will be posting that letter off the minute the post office opens again next week.

 

Once again thank you and Merry Christmas

[zootscoot]

Hi Meled,

 

You might also want to take a look at the response to an application for strike out, in the stickies at the top of this forum and use some of that just to be on the safe side.

 

All the best

 

Zoot

[doyin22]

I hope you don't mind but i've had the exact same letter from Northern Rock so I willbe sending off a responce today as per above..

[Tink]

Hang in there Mel, you've had some great advice already, just go get them girl.

[meled]

Hi again

 

Well we just phoned the local court to see how long the cases are progressing. Also was worried as we had not received a copy of the AQ from NR.

 

Was astounded to be told that they only received the AQ yesterday!!! Surely it should have been in the same date as our (13th Dec.).

 

Is there anything we can do about it being so late??

[meled]

Thought I would update quickly as we had a hearing today with Northern Rock.

 

Bascially the strike out NR had asked for was rejected.

 

The draft directions are to be used as the directions for the case.

 

And the judge has transferred the case to the mercantile court.

 

Zoot have tried to PM you but you are full, can you spare a little space for me please

[zootscoot]

Excellent news Meled!

 

Looks like the waiting could be nearly over for you.

[Jaranius]

xx

[meled]

Zoot, I really need some help can I please PM you?

[meled]

Thought I would update and gain a little advice from you guys:

 

We were transferred to the Mercantile but the paperwork was lost inbetween courts. It now transpires that Mercantile will no longer accept bank charge cases and are sending them all to the London County Court.

 

As you may remember we were issued with the directions from this forum, we completed the bundle and sent in the information. As of Last Friday none of the courts that had dealt or was dealing with the case claimed to have received a defence. So this week the case went in front of Judge Mackie QC. He replied that because the paperwork was missing he was unable to pass a judgement but recommended that we correspond with Northern Rock and informing them that because of non compliance we considered the case struck out and required payment.

 

Sent them an email, only to be informed that the defence had been sent to the London County Court of the 12th June.

 

Now the problem we have is that the order required the defence to be in on or before the 10th June.

 

They were also required to breakdown costs but the only thing I can find in response is this:

 

"The defendant will adduce evidence to show that the charges are a genuine attempt to estimate in advance the loss which the defendant would be likely to suffer. In the first month when a mortgage account falls into arrears at least one letter, and sometimes up to three letters are sent to the customer. In the second month, further letters are sent out enclosing documents from FSA. In the first and second months, the arrears charge is £25. After the account has been in arrears for two months, counsellors can be sent to visit the defaulting customers. Once the account has been in arrears for three months, the defendant may being proceedings although this depends on individual circumstances. Once the account has been in arrears for three months or more, the arrears charge is £55. During the period in which an account is in arrears, the defendant contracts the customer continually by telephone and by letter in order to determine the reason for arrears, to negotiate repayment of the arrears and to bring the account up to date. All this requires the defendant to employ staff especially dedicated to this task and to pay for the attendant costs of doing so. Father, given the number of customers who have mortgages with the defendant, it is impossible to estimate precisely the likely loss in each case but the charges are a genuine attempt to do so".

So do we ask for judgement on the fact the defence was late, or would this be viewed as being unreasonable and therefore turned down.

Or should we also use the costs issue, as I dont know if the above actually constitues a breakdown.

Any help would be much appricated

[meled]

Ok just bumping as really need an answer to this one

 

Also although they say they will produce evidence we have recieved nothing breaking down the costs.

[Celicaman]

Ok just bumping as really need an answer to this one

 

Also although they say they will produce evidence we have recieved nothing breaking down the costs.

 

Hey again meled

trying to get head around this. If thats their defence, all they are doing is stating their T & C's, the usual rubbish.They wont produce anything to back it up. Sorry but i dont know the answer to the rest but i'll be watching

 

Good luck

 

CM

[mrsfoot]

Thought I would update and gain a little advice from you guys:

 

We were transferred to the Mercantile but the paperwork was lost inbetween courts. It now transpires that Mercantile will no longer accept bank charge cases and are sending them all to the London County Court.

 

As you may remember we were issued with the directions from this forum, we completed the bundle and sent in the information. As of Last Friday none of the courts that had dealt or was dealing with the case claimed to have received a defence. So this week the case went in front of Judge Mackie QC. He replied that because the paperwork was missing he was unable to pass a judgement but recommended that we correspond with Northern Rock and informing them that because of non compliance we considered the case struck out and required payment.

 

Sent them an email, only to be informed that the defence had been sent to the London County Court of the 12th June.

 

Now the problem we have is that the order required the defence to be in on or before the 10th June.

 

They were also required to breakdown costs but the only thing I can find in response is this:

 

"The defendant will adduce evidence to show that the charges are a genuine attempt to estimate in advance the loss which the defendant would be likely to suffer. In the first month when a mortgage account falls into arrears at least one letter, and sometimes up to three letters are sent to the customer. In the second month, further letters are sent out enclosing documents from FSA. In the first and second months, the arrears charge is £25. After the account has been in arrears for two months, counsellors can be sent to visit the defaulting customers. Once the account has been in arrears for three months, the defendant may being proceedings although this depends on individual circumstances. Once the account has been in arrears for three months or more, the arrears charge is £55. During the period in which an account is in arrears, the defendant contracts the customer continually by telephone and by letter in order to determine the reason for arrears, to negotiate repayment of the arrears and to bring the account up to date. All this requires the defendant to employ staff especially dedicated to this task and to pay for the attendant costs of doing so. Father, given the number of customers who have mortgages with the defendant, it is impossible to estimate precisely the likely loss in each case but the charges are a genuine attempt to do so".

 

So do we ask for judgement on the fact the defence was late, or would this be viewed as being unreasonable and therefore turned down.

 

Or should we also use the costs issue, as I dont know if the above actually constitues a breakdown.

 

Any help would be much appricated

 

Hi

I have had a good read of your thread and hope I can help in a small way.

 

Why did the case go before a Judge this week? Was that the Allocation hearing? If so and you have received the orders from that hearing (to contact NR and tell them blah blah) then I suggest you email NR again and tell them the AQ was received late (as they will be aware) and the court has ordered you to contact them with regards to non compliance, scan the order into the email for clarity.

 

If you have not received an order from the court I would write to the Court Manager naming Judge Mackie QC and court case number and give them a breakdown of what has happened since the hearing and state you are applying for an order to be made to strike out the Defence on the grounds of non compliance. Explain you have received correspondance from NR but is it not what was required by the order. Also explain about the lateness of the AQ. You are not being unreasonable...the court puts orders into place for a reason not for NR et al to ignore. Make sure you send a copy of this letter to NR.

 

The "breakdown" you have received is not good enough (and I have dealt with this in the last paragraph) A breakdown shoud show the costs incurred, how they calculated the costs to be charged and what those charges cover in respect of actual losses / costs to NR.

 

Hope this helps a little

[meled]

I am pleased to say I can finally say this case is settled

 

This case has dragged on much longer then needed in my opinion

 

We obtained a judgement back in June against Northern Rock as they had failed to comply with the judges directions

 

They (as expected) put in for a strike out application and we have since had to sit back and wait for a court day.

 

Last week we were informed that the court date would be last Friday, and suddenly Northern Rock agreed to settle (for slightly less) on the grounds that it would cost them to much to defend

 

I was glad to settle to be honest as this has been a very long drawn out case, were I believe they played the legal system to thier time and advantage

 

But thankfully its now over

[zootscoot]

Excellent news!!!

Congratulations your persistence got you there in the end.

Very well done, I'm so pleased for you! :D

[molly47]

sorry to through a random thought in here, i am all over the place on this site. charging order about to be placed on property, i am determined they will not do it. trying to defer case. can i go for costs while this is happening? they have hammered me for two previous mortgages that were without arrears but had ercs, current mortgage is slapped with everything under the sun, arrears, consultant charges etc. my question remains, can i do this when they have got to the ccj bit (not even sure if there is a ccj but i am presuming they have done this). i am struggling with all this. there has to be some way i can 'repay' there tolerance and understanding? lol. so frustrated with there bullying.

molly47