Platform defending or are they?

[priestley1965]

dont know why ther is a smiley in above I am trying to type 1938

[jamorgan]

Well done Alan,

I was worried about you, I think you did really really well.

I don't know wether this gives me any hope, will have to wait and see the out come of the transcript

Well done hun x

Morgy

x

[Charbydis]

Great result!

Just a few questions

Is it possible to post your questions or an outline of them as I am up against Platform early Feb and am getting more nervous by the day.

Second can I have your claim details so I can quote them to back up my case.

And thirdly what is this OFT test case can you give me details please

Any way well done.

Lets hope its all settled soon!

[dogwash]

Well done - at least you are back in with a chance now.

[ellielou]

Well done - you did well & positive that the judge believes you have a case worth hearing

[mrsfoot]

Alan what a great outome

 

You obviously showed you had a good case to answer and the judge seemed fair from what was said.

Bit of a sting re costs, but then with each case there are allergic reactions i suppose!

An outline of your argument might be a good idea for the board as will any links you have to any of the cases, although this is really me just being lazy so you are welcome to ignopre that lol

Well done, you have shown you are willing to fight for whats yours,

mrsfoot

[CrispDust]

Depending on the size of costs it may well be worth while appealing against these. Did they really need a barrister to contast a judgement?

see Zoots posting on CPR (Zoot can you point in the right direction from the Kensington case?)

[priestley1965]

Thanks everyone for your comments.

 

The following is a copy of my notes which I took to the hearing in anticipation of what would be brought up, I passed a copy onto the judge and to the barrister and solicitor and she read it rather than me having to go through all of the points.

The barrister was busy scribbling on it, making notes, crossing out etc etc but the judge obviously thought that there was enought there to allow it to go to trial!

All of the terms etc quoted were picked up from various parts of this site and just built into my situation.

 

Court Hearing 19/01/07

Firstly can I state that I am not a lawyer and have not had the benefit of expert advice from a barrister. I brought this action after taking advice from the consumer action group who have an ongoing campaign against unfair bank and mortgage charges.

Please do not try to confuse me with legal jargon!

1) Breach

It is not disputed that I had a mortgage with the defendant

The mortgage was for a term of 25 years; it was redeemed before 25 years and is therefore a breach of contract

I accept the contention that redemption of the mortgage was provided for in the mortgage offer. The term provides that an early redemption charge was payable in the event of a redemption and thus represents a charge that is payable in the event of a breach of contract. The term merely anticipates a breach and does not represent the exercising of a right under the contract.

A term imposing an ERC is merely stating what charge will be paid if you breach the term by ending early.

A term which provides for a pre-determined fee in the event of a breach of contract must be a genuine pre-estimate of the losses incurred by the breach if it is to be deemed a lawful liquidated damages clause. If it is excessive it will be an unlawful penalty.

Case law: Bridge –v- Campbell Discount Co Ltd

Dunlop Pneumatic Tyre Co Ltd –v- New Garage Motor Co

I redeemed this mortgage early on 02/06/05 and was charged £4253.09. If I had redeemed on 08/08/05 and had given 1 months notice then no charge would be payable therefore how can the actual costs have been £4253.09 for the sake of 2 months.

Mortgage companies offer a reduced rate in order to attract custom which is a calculated commercial decision. The risk involved should not be passed onto the consumer as this would be unreasonable under s.4 UCTA

2) Mortgage details

We sold our previous house to help us out of difficult financial circumstances. We had a poor credit file and the financial adviser only offered us one product from one lender (sub prime)

The deal was for a variable rate mortgage at 4% above the Libor rate – this was discounted by 1.5% until 01/04/04

This reduced rate was still excessive but we did not have a choice.

We redeemed the mortgage early as we still had not got out of our difficult financial circumstances and we needed to raise funds, furthermore we were in arrears with the mortgage as we couldn’t keep up to date with the payments after the discounted period ended and we were being pressured by the lender to clear the arrears, at this point they were threatening repossession proceedings. Our only available course of action was to re-mortgage!

The rates charged were as follows:

6.75

6.62

6.25

6.12

6.25

6.5

6.75

Discount period ended

8.25

8.75

9.0

8.87

9.0

8.87

3) OFT

The office of fair trading did a test case for excessive redemption fees and the research paper commissioned by them says:

A term in a mortgage agreement which requires the borrower to pay more for breaching the contract terms than actual costs and losses caused to the lender by the breach (or a genuine pre-estimate of that) is likely to be regarded as an unfair penalty and to be unenforceable both at common law and (in a consumer mortgage) under the unfair terms in consumer contracts regulations. A redemption charge may be regarded as a penalty even if it is expressed as the price for exercising a right rather than a consequence of breaking the agreement.

Dr Skinner the researcher concluded that:

Redemption charges other than a reasonable admin fee are not justifiable in the case of variable rate loans.

Overhanging redemption charges – which continue to be levied after a fixed rate has ended, cannot be justified.

4) Successful claims

Successful ERC claims have been made against the following companies:

Halifax Mortgages

GMAC

Alliance & Leicester

Birmingham Midshires

Nat West Home Loans

Leeds & Holbeck

CHL

Mortgage Express

Northern Rock

London Scottish

Plus many claims are currently ongoing.

All of the above companies used maximum delaying tactics and all settled prior to the court hearing rather than setting a precedent by unsuccessfully defending at court, thus incurring time and costs.

5) Counter claim for costs

When this claim was started it was understood that as the claim was in the small claims court and was for less than £5000 then I would not be liable for the defendants’ legal costs in accordance with CPR 27.14

The defendant has indicated that their costs to date are £3091.80 and that I will be responsible for these.

This is intimidatory and it appears to be aimed at pressuring me to withdraw the claim and is therefore in direct conflict with the civil procedure rules.

Under the civil procedure rules I understand that the defendant cannot rely on a clause in a contract which is no longer in force.

Clause 17.1 in the mortgage terms is an unfair term under s.4 of the unfair contracts terms act 1977.

Such a term is unreasonable under s.11 of the act as even if my claim is successful the term would effectively deprive me of a remedy and indeed could leave me open to pay further costs.

6) Summary

To summarise: I have a valid claim, I followed procedure and won judgement by default as neither the defendant or their solicitors responded within the given time frame.

I do not feel that the defendant does have grounds for the judgement to be set aside or struck out.

If the court decides for the judgement to be set aside then the case should go to trial as I have a real prospect of being successful in this case.

The defendant should be responsible for their own costs as indicated above.

 

 

Hopefully this is of some use to any of you out there who are in similar circumstances but perhaps Zoot or someone with more knowledge than me can check it over before anyone uses any of the details.

 

 

Cheers......Alan:)

[zootscoot]

Hi Alan,

Thats really good. You make your points clearly and succinctly. One point thats not quite right:

Under the civil procedure rules I understand that the defendant cannot rely on a clause in a contract which is no longer in force.

 

This right simply derives from contract law not the CPR. Otherwise great.

Would you mind if I borrow parts to put in a sticky?

 

Congratulations and well done again!

 

Zoot

[priestley1965]

Hi Zoot,

 

Thanx... you are welcome to use any of the details.

 

Some of it probably came via your help on other threads anyway!

 

So I should be thanking you!!

 

Alan.......

[humbleman]

any further developments on this

[too strong]

any further developments on this

 

What happened?