oppressed but steadfast vs ipswich B.S.

[lizvp]

well its been a long (and frankly intimidating) road, but this morning we finally received a copy of the ipswichs Allocation Questionnaire (small claims track). we werent really very surprised that they have ticked the box asking for a postponement, after all they have done nothing but stall since last august when they told us we werent entitled to our data.

the surprise was that they have asked for the location to be changed, has this happened to anyone else? this is what they they put in section B :

 

The Defendant requests that the matter be heard at the Northampton County Court (where proceedings were originally issued) as the Defendants only witness Mr Ian Brighton, General Manager (Business Services) would be required to commute from Ipswich to Bodmin for the hearing. There are significant demands on Mr Brightons time as General Manager of Business Services and his absence from the office to attend Bodmin to give evidence would require an overnight stay and approximately 2 working days out of the office.

 

we dont feel terribly sorry for him! he has also given 10 dates and 6 full weeks, which pretty much covers the next 4 months, when he cant make it.

my question is..should i wait until the court has responded to the AQ, or write to the courts now, putting forward the financial hardships it would cause us to take time off (from a very insignificant job, which pays possibly a tenth of Mr Brightons very important job), travel to northampton, accomodation etc. a cost which would more easily be absorbed by the defendant?

is this just yet another delaying tactic from the people who assure us they will 'vigorously defend any court proceedings'?

is the court likely to transfer the hearing?

liz

[lizvp]

what absolutely dreadful and shocking news! i cant quite believe that these mortgage companies are going to get away with it all. i only hope that the publicity and pressure on the ombudsman will help future borrowers.

 

we arent claiming ERC, just charges which total just under £1,000 including interest and costs, so we are small claims track. we have decided to see it through as we had already been given a court date when this all blew up, and we no longer have a mortgage with them.

 

there has been no mention, so far, of costs at all, but as the main thrust of their defense is promissory estoppel, im tempted to believe the same would work against them re any claim for costs...and im also reasonably sure that we have acted with equity anybody got any ideas about that?

 

we shall find out soon enough i guess, court bundles due tomorrow, in court in 2 weeks time. happily, our district judge seems to be a pretty good egg with a sense of humour.....in our other case against hsbc, they were late filing AQ and he jumped on it with an 'unless' order; now they have filed he has allocated the hearing 1 (thats one) minute!

 

anyway, good luck to everyone and i shall update when and if i have any news

[lizvp]

GRRR!

 

i would be very grateful for anybodies thoughts on this.......

 

as i said in my previous post, court bundles were due today, but all i received this morning was a letter from SGH (their legals) asking for a further 7 days to file and serve as they were still waiting for documentation from their client (which is coming from a number of sources and also from archival records).

 

im reasonably sure that this is no longer my decision- the deadline was, after all, set by the judge and so it is his deadline that they are asking to break- but i just dont know if i should respond to them or not???

 

i intend to write to the judge pointing out that this is very 11th hour (court date 2nd march), and will disadvantage us by having less time to respond, but will this just provoke another postponement? its an ideal time, tho, to point out that on their AQ, they asked for an extra month in an attempt to settle or resolve, yet have made no attempt to do so.

 

any ideas out there?

[lizvp]

its a bit lonely in here

so just a lonely shout out into the dark....just what is classified as liquidated damages?

we have received 6 years worth of liquided damages from the other side.

if these are correct in every aspect, then these poor mortgage companies have been subsidising us for years! the actual cost of each default is about £35 on av.

they list absolutely everything down to the cats supper (im only slightly joking) as attributable costs:

core systems, dat comms, equipment maintenance, consumables(??), internet, computer depreciation.

PREMISES: costs, utilities, business rates, cleaning, maintenance, telecoms, alarms, fax machines, depreciation.

then we get on to management, postage etc.

 

they list management salaries and bonuses, clerical staff (including names, hrs per week worked and wages!) all with percentages of amount used up by defaults..typically around 3ish%, then divided by number of defaults..which last year (inclucing 2+ arrears events) totalled less than 2500.

 

any thoughts on this out there?

[caro]

Your shout into the dark was heard, and for what it's worth I'll try to help.

 

1. It was unreasonable of them to ask for the case to be held in Northampton. Looks like you got that sorted, but I would suggest might be worth you remembering for future reference. While not exactly a major player in the mortgage business I imagine, they are in a better position that a litigant in person to have to travel etc.

 

2. Late bundle, I would suggest puts you at a significant disadvantage, especially given that you are a litigant in person, and they are giving you information that you need time to digest, and possibly get advice on. I can understand you preferring not to delay the case any longer. Having said that, if you do feel you need the time to understand everything you have an excellent reason for adjournment.

 

3. Liquidated losses. Trickier, so here are some thoughts, bearing in mind I'm not an expert.

 

A definition:

 

Liquidated Damages

Present in certain legal contracts, this provision allows for the payment of a specified sum should one of the parties be in breach of contract.

 

Notes:

This is meant as a fair representation of losses in situations where actual damages are difficult to ascertain. These liquidated damages are meant to be fair rather than punitive

 

I understand why many if not all of these items are there, but have a problem getting my head round what is actually being said here. I think I probably have more questions than answers, but here goes.

 

Are they saying that 3% of the total time of their staff is taken up by defaults, or just certain people?

 

The charge should relate to the actual instances where they have had to charge you as I understand it, so do they specify for each occasion exactly how long each member of staff worked on your specific breach.

 

Was the matter dealt with manually?

 

Did a manager look at your specific breach each time, or do they have some systems in place which meant that the member of staff (if there was one) knew how to deal with it so could do it unaided. If so how long did they actually spend on it?

 

How have they arrived at a figure of 3%? Is this 3% of their total business or just the mortgage section?

 

Take a look at the accounts here http://www.ibs.co.uk/downloads/Annual_Review_inc_SFS.pdf

 

Page 4 shows that their admin costs fell by 5,000 in 2005 compared to 2004, yet "Other Income and Charges" increased by 51,000. How much of this was charges, and is the reduction in admin costs reflected in the costs of your breaches in that financial year. Are 2006 accounts available yet, and how does that compare?

 

How many charges were there?

 

Which staff have bonuses? I notice the Sales and Marketing Director, and the Finance Director each had 2,000 in 2005. Did any of the staff dealing with your charges have bonuses. If the staff didn't have bonuses, what part did the Directors mentioned play in the collection of your charges?

 

How much of the profit relates to charges?

 

Have they provided back up documentation to prove the figures quoted?

 

When looking at depreciation, are they taking into account all depreciation, or just the depreciation of the items used for raising charges?

 

Have they provided copies of their accounts for the last 6 years to help you understand their calculations?

 

Without seeing what they have sent you, I think your best bet is just to question every item, how they have calculated, how that relates to your particular charges.

 

Keep making the point that you are a litigant in person and not used to dealing with such matters. The judge should make sure that you understand everything, so ask for lots of explanations. They have tried to blind you with accountancy jargon so let them explain it for you. Try and follow what is being said, and if you don't understand, ask. The more they have to explain, in my opinion, the more likely they are to make a mistake for the judge to pick up on. Play on the fact that you got the bundle late, so haven't really had time to fully get to grips with it, but didn't want to delay matters any longer and waste more of the courts time. Say you are surprised they have mentioned staff names and salary due to Data Protection.

 

 

I hope this is of some help.

[lizvp]

thankyou so much for that Caro, and thanks for the accounts! i hadnt thought of that angle, i intend to thoroughly examine all that this afternoon and compare to what he has sent me.

 

nope, no documentations just lists. essentially, it reads like a list of all outgoings, then around 4% (ish) has been atrributed to 'collections staff'. the sum of this has then been divided by the number of defaults.

 

there is no mention of individual or actual costs, or time spent on each default, just a list of what it costs to run a department to cope with any defaults that occur.

this kinda smacks of a commercial risk cost to me, or am i way off base here? does this not come under the unfair contract terms 1977..a fee levied to indemnify against commercial risk?

 

i suspect that you are right, they are trying to baffle with accoutancy jargon, happily it doesnt phase me too much, but i would have been happier with the actual accounts oh wouldnt i!

 

this chap has been spectacularly unpleasant at each stage, in his witness statement he mentions this forum, in a quite disparaging way: he basically says that CAG is targetting financial institutions for their own strange reasons, and using us poorly misinformed plebs to do their dirty work. he states that we clearly do not understand the complex legal issues and that we hide behind the small claims track as we are clearly of limited means!! makes my blood boil a bit, which achieves nothing!

 

thanks once again Caro, you have settled my thinking back on to the right track.

[caro]

That rather implies then that he is familiar with this site. I wonder if he has obtained permission from Admin as stated in the forum rules. I'll investigate the legal position of him doing this. I know if that is the case he is breaking the law.

 

And as for limited means. How dare he comment on this! Of course are means are limited compared to financial institutions, and often as a result, at least in part of their actions. What right has he to judge?

[caro]

This is one angle, but check out every angle of the defence and bundle carefully. The bundle should show what they will be relying on in court. It sounds lacking, and they have messed up in my opinion on this part at least.

[lizvp]

to be honest, he uses phrases like 'i am told' and 'i understand', when referring to CAG.

'it has come to the attention of our legal advisors' (hmmmm...could that have anything to do with the CAG stickers we put on our letters?), 'that an internet based consumer action group known as the consumer action group has been actively offering advice and assistance to a number of consumers in the area of bank and mortgage charges. such site appears to encourage individuals to commence litigation against lending institutes.' it goes on to say that this consumer group is 'deliberately targeting banks and mortgage lenders on the issue of (in their view) unlawful and unfair charges.'

 

he says these claims are both 'legally and commercially unmeritorious', and goes on to say (basically) that its not fair that they should have to defend themselves....'These claims thus cause the lenders to be exposed to very significant legal costs at the instance of claimants who appear to be of limited means and who are able to shelter behind the costs restrictions in small claims track litigation.'

 

i intend to read every word, but the basic defence is: costs for dealing with defaults is higher than the charge, the law doesnt apply to us, ya boo sucks.

which makes me very nervous somehow

[caro]

It strikes me as very odd that a building society that I have never heard of feels able to show how their charges are made up, when huge multi-nationals have so far taken an enormous amount of care to avoid doing so.

 

As for encouraging litigation, we urge people to give 28 days to resolve the issues before resorting to court action. Also by keeping claims within the small claims track you are only asking for the money back that was taken unlawfully, plus interest at the courts discretion, and so you are also not asking the bank (or building society) for your own costs or damages for distress, difficulties, compensation etc.

 

How arrogant is this man? No-one is above the law. Read up your own bundle too, as that will confirm to you why your claim is fair. It'll be much easier if you understand your own claim thoroughly and can be confident in your arguments.

 

Remember, he is having to defend himself, not you.

[lizvp]

a bit of news, which makes me heave something of an ambivalent sigh of relief... the court phoned this morning, our hearing for friday was a second fixture listing, and the first fixture is going ahead. so we arent in court now until the end of march.

 

half of me just wants this over and done with, but the other half welcomes the extra time-i really want to be ready for this one!

once again Caro, your advice has grounded me..reading our court bundle again, specifically the legal bits, has brought everything nicely back into focus, thankyou!

 

i cant help but wonder what i would do if i had to leave the office and travel all the way to cornwall for a friday morning court hearing tho , i do hope this last minute re-allocation hasnt messed up any plans to have a jolly on expenses....does that make me a bad person?

[caro]

I thought you were in Bodmin? The silly part is the chances of you going to court at all are minimal, but at least it gives you more preparation time just in case.

 

I wonder if you could use this time to good effect, and try and sort it sooner rather than later, which would show the judge your willingness to avoid wasting court time.

 

Maybe you could write to the Building Society, thank them very much for the bundle, and ask for the information to back up their list and how they've calculated it, just so that you can understand it better. For information, perhaps you could send them a list of your questions so far to save time if you do need to go to court. You might suggest that you would be willing to amend your claim, or even drop it all together if you were confident that the charges truly reflected their actual costs. Send a copy to the court for information to show that even at this late stage you are more than willing to settle if you are confident that the charges truly reflect the costs and that court really is a last resort for you. Of course if they can't show this to your satisfaction you don't have to accept any offers that are not to your satisfaction, or amend your claim, and you have your court date to fall back on.

 

Just a thought that you may or may not want to consider.

[mrsfoot]

Sorry for rude hijack, but i notice you have access to accounts for IBS. Can you tell me where i would find accounts for other institutions? Specificly swift advances plc?

 

Great thread by the way!

[caro]

Just look on their website or ask them. The ones above aren't actually full accounts, but I think they should all have annual accounts which are available for anyone to see. If not try Companies House, or you can get some from the FT online service linked below, although not Building Societies I think because they are owned by the members and not listed on the stock exchange. For all searches I tend to just use Google.

 

FT.com / Annual report services

[mrsfoot]

Thanks much appreciated

[lizvp]

im starting to get that sublime/ridiculous feeling!

 

we have received a letter from SGH (their legals) saying that mr brighton cant make the new date as that is the date of the ipswichs' AGM.

 

cant help but wonder why, when on his AQ he listed every date through til june he couldnt make it, he didnt list the date for the AGM!

 

perhaps i should do the obvious first, check that there really is an AGM on that date..tho i cant imagine even this guy would be stupid enough to lie about it. then write a letter to the judge.

 

i have spoken to the court, and they will need to pay a fee and get our consent to change the date, but i dont know if our not giving consent will make any difference.

 

ah well, another letter to the judge

[caro]

I think if you give consent a fee isn't needed. You would have thought he would have known the date of the AGM and it won't hurt to check it. We can all make appointments, but often they can be changed for something important, like a court appearance.

 

You could point out that you have been waiting a very long time to get this settled, both before taking court action, and since starting it, and that you would really like it settled as soon as possible now. If you are finding the delay stressful, or feel your health is being affected, include that in the letter. Perhaps if it can't be settled the day of the AGM, could the judge suggest an earlier date, when, for example he may have a cancellation? You want to be as reasonable as you can, but your attempts to settle are being scuppered at every turn it seems. I think BankFodder might say the delay is a human rights issue.

[lizvp]

well i phoned to ask about the AGM, it is indeed on the 28th, but....it doesnt start until 7pm (though drinkie-poos & snacks are available from 6).

 

the 1hr listing starts at 11am, so finished by 12.

the OH has made the very same journey many times and reckons that mr brighton should make drinkie poos no probs.

 

am writing to the court, pointing out that they have delayed and obstructed at every turn and we dont feel obliged to consent..and of course that mr brighton could do both if he could be bothered

 

as you suggested, Caro, i have been doing a lot of very close reading of both court bundles and you are quite right, the law leaves very little wiggle room. we have the added bonus that they mis-managed the account quite badly, which has very direct implications within the UTCCR, and it could (will) be argued that this mis-management actually manufactured at least some of the charges.

 

in fact i can hardly believe, in light of the history of the account, that any solicitor would advise proceeding with this..and i guess that is why i feel uneasy: why are they so confident? what can i possibly be missing? could it simply be that they havent done their homework?

i almost feel that i should talk to the solicitors and ask them if they are aware of all the facts?

 

as to finding the delay stressful..oh yes! i find myself dreaming of such things as Lord Elphinstone v. Monkland Iron and Coal (1886), i mutter the UTCCR as i walk the dog!

 

and thanks once again for the advice & support Caro. its all very well understanding the process/law etc. but its a very daunting process sometimes sometimes

[caro]

Of course they seem confident. They want you to think that, but they are still unlikely to go to court. I think of it as a game of chicken. Who will jump out of the way first.

 

Sounds like you've done your homework, you're prepared. Why give them the benefit of knowing what you have found out and giving them the opportunity of looking for more obstacles and arguments to deter you.

 

Is it vital that this person attends the AGM or is he just a staff member who might be useful? He can make it back in time. You know what you have to do. Keep us posted.

[lizvp]

thought it was about time i posted a quick update, tho not huge amounts to report!

the adjournment was granted, which we kinda expected, and our hearing is now set for june 11th.

rather irritating, but gives me a chance to think up further ways to cause them irritation

 

they recently published their accounts for the previous year, and much to my delight they have published a profit of £610,000 under the heading of 'other income and charges'!!!!!! it may not prove to be an actual nail in the coffin, but im damned sure it will be prove to be a hard question.

 

i just need to find out how i include this new information into my court bundle, im assuming i just write to the court asking for inclusion and send the other side copies? any ideas gratefully received, tho i suspect i shall find the answer within the CPR.

 

im also seriously contemplating hitting them with another claim for exit fees, but un-decided if waiting til this one is out of the way before starting would be a better idea. i cant see any way of tacking that on to this claim, but, again, any ideas gratefully received.

 

caro, love ur eeyore!!!

[zootscoot]

Hi Liz,

 

Wow thats a good find on their profits from charges! Write to the court and ask if you can add it to the bundle. They may ask you to do a formal application but as there is still quite some time for the hearing I don't foresee any objections.

 

Regarding the exit fee, you could do this via a letter. Since the FSA's announcement on exit fees the mortgage companies have been paying out with out too much of a fight so I don't think this should cause any problems to the present case.

 

Best of luck

 

Zoot

[caro]

'other income and charges'

 

I'm just a little dubious that this may be possible for them to explain away, and how much is actually penalty charges, if any.

 

Is there a little number next to this figure, which refers to a note which might explain what this consists of?

[lizvp]

in just 25hrs, it will all be over one way or another! and we have recieved another 'note on behalf of the defendant', dated 8th june!

im reasonably sure that this is just to spook us, but could be that the first witness statement is full of personal scathing remarks about us rather than anything legal.

 

the new stuff basically says that as we redeemed both mortgages, we have accepted the charges and may not challenge them...hah!

that we dont understand the complex legal issues and 1)shouldnt be allowed to use the courts time in this way 2) were goaded into it by CAG!!!!

that their charges are lower than other lenders in the field (so??)

that these are not sums due upon breach of contract, but fees for financial services....except that mr ian brighton has already on numerous occaisions called them charges for breach of contract.

 

im a tad nervous and apprehensive, mostly because i havent had as much time to prepare as i would have liked (my mother died recently), but this 11th hr submission has my blood up again, so we shall spend the rest of today preparing and let you all know how it goes tomorrow.

fingers crossed for us please?

[caro]

I wish I could be more helpful, but take a look at this link which may help. http://www.consumeractiongroup.co.uk/forum/guidance-notes/641-case-guidance-notes-going.html

[lizvp]

thanks Caro, that was actually very helpful; certainly gave us questions to ask when the mind was otherwise about to go blank!

 

we think it went fairly well. very intimidating-london barrister, an actual courtroom etc. we wont get a decision for 5 days or so as the judge wasn't really expecting them to show, the first case of 'charges' he has actually seen despite the many hundreds that have passed before him.

 

he was very friendly (the judge), quite scrummy in fact (seriously!) and very interested.

mr ian brighton was asked to stand in the witness box, tho not sworn in. he was clearly expecting us to be turnip pickers and his shock was fairly evident when i started to ask him hard questions about his justification methods on the charges...passing on the cost of depreciation of buildings, computer/telecoms equipment, staff & diresctors bonuses etc. tho no mention of the cost of his companies external indemnity policies, tax allowances & tax deferrals for bad debts etc.

my heads really too stuffed full of, well stuff to properly report what happened.

 

towards the end (after the london barrister bored us all rigid with examples of every other mortgage providers charges, the judges eyebrows couldnt have raised much higher), the judge said he would hand down his verdict in 5-10 days. the barrister mentioned costs and expenses (SCARED!) the judge gave a sympathetic smile to him and said that he didnt think there would be any question of costs.

 

we thanked the court very politely and made a bee-line for our local pub!!!

will post verdict when we have it.