Celicaman VS Northern Rock

[Celicaman]

Just had a thought as well, i wonder what they would think if i send a letter to the OFT, complaining about their tactics, its about time they were held accountable for their actions.

Blood boiling now, cos if i wasnt part of CAG & didnt have peeps like you around i would be falling apart by now.

Thanks for the support Pete

 

CM

[Castlebest]

Retake on post 15

 

 

Blah Blah, you have failed to respond adequatley to requests 2, 3 & 4 therefore Northern rock have today filed an application notice with the court for an order to strike out your statement of case or for an order that you respond in full to the part 18 request. Blah

Hmmm interesting, we answered all their questions,

So say this in your letter

In response to your part 18 request, Northern rock has as stated previousley in its defence that its charges applied to your Mortgage account are a genuine reflection of the true cost to northern rock when we admin your account. copy ot T & C's

 

Sorry NR you have to prove it not just say its correct

 

After that there is a copy of form N244 'application notice' Basically asking claim be struck out as outlined above.

 

Think an N244 will cost you £30 to apply to have the defence struck out

 

Then part 'C'

The claimant applies to the court for an order to strike out a statement of case as the defendants statement of case and reply to the claimants CPR 18 request discloses no reasonable evedence for the values of charges being levied on the claimants account

 

If the court is not minded to strike out the defence, the claimant applies for an order requiring the defendant to fully disclose the basis for the charge calculation

 

If the claimant is successfull in its applicatoin it reserves the right to apply for costs

 

(or something along those lines)

 

 

They are leading so just turn it all around on them and do exactly what they do, we both know there is no way they will provide details of how their charges are formulated because they cant.

 

pete

[Castlebest]

I think the OFT normaly stay away from cases that have legal proceedings involved, but you could try.

 

pete

[Castlebest]

Do Northern Rock go to court or back out at the last minute ?

 

If they are chickens like the rest of the banks it might be worth adding somthing like this to your application for a defence strike out.

 

Alternativly; The defence be struck out as an abuse of process, as it has no real prospect of being defended in court.

 

If the defendant seeks to set aside the strike out, the Defendant shall, with its application attach a schedule of all the cases where a similar defence has been filed and where they allowed the claim to go to trial and did not settle giving details of the action number, the court and the date of adjudication by the court.

That needs rewording but you get my drift

pete

 

 

[Celicaman]

Thanks again Pete, will digest & decide what to do, date is for 31st July so not that long to get anything in & the judge prob not even see it before then as courts are behind with claims, Must be busy LOL

 

Cheers

CM

[Celicaman]

Ok, heres a list of what they would 'claim' as the costs

 

attendances on claimant £31.80

Attendances on court £63.60

attendances on hearing £195.00

attendances on documents £909.40

Court fees £65.00

Total £974.40

 

well if its cost them all that, wouldnt it have just been easier to refund my £200 in the first place

[zootscoot]

Are they claiming these costs under a legal indemnity clause in the contract?

 

Did they submit a counter claim for their costs?

[Celicaman]

Hi Zootscoot,

Where would i find the clause about indemnity, would that be on the Mortgage contract ?. We have checked and cant see anything like that in the T & C's

 

They have asked for claim to strike out for supposedly not answering their CPR18 request,( we did fully & also asked them for breakdown of their costs re cpr18 8)

With the form N244 part C, they say 'if the defendent is successful in its application it reserves the right to apply for its costs.

After their request we received the court date ( Notice of hearing form saying that the hearing for the defendants application will take place on 31st July) & rec'd AQ (N149) and we filed with that a request for draft order.

Then we rec'd this notice from them about what costs they intend to claim.

The claim has not been allocated yet and is only £225 and was issued MCOL

Thanks for your help

 

Celicaman

[zootscoot]

If your claim has not been allocated then the costs rules of the small claims court do not apply. Even if the claim is significantly below the 5K threshold. So if they win you could end up liable for their costs.

 

 

 

Dear **********

 

Celicaman v Northern Rock plc

Claim Number: ********

 

I acknowledge receipt of your Request For Further Information (Part 18 of the Civil Procedure Rules). Please note that 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 specifically orders me to do so of its own initiative. However, as a courtesy, please find my response detailed below:

 

1. Particularise each and every charge that the Claimant seeks to be returned in these proceedings.

 

This information was supplied on [date], and confirmation that this information answers question 1 was received from Northern Rock on [date]. However, please find attached a further copy.

 

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

 

The Defendant charged the Claimant arrears charges of £** on the following dates: [dates here] as detailed in Northern Rock’s Defence. These charges appear as a single entry on the yearly statement as detailed in the attached summary sheet. You have not specified the breach of contract as requested. ie Under the terms of the contract payment was due on XX date. I didnot pay until XX date and therefore in breach of XX term of the contract.

 

3. In relation to each of the said charges, particularise what, if anything, the Claimant considers to be the Defendant’s loss caused by the alleged breach of contract.

 

The Claimant cannot specifically reply to this request in that the amount that should have been charged cannot be specified because the Defendant has not yet provided a breakdown of costs incurred by the Defendant in applying charges to the Claimant’s account. A request for this information has been made of the Defendant by the Claimant, and said request has also been copied to the court.

 

4. In relation to each of the said charges, particularise the terms of the mortgage with the Defendant (or other contractual documentation) that is claimed to be unenforceable.

 

The Claimant does not contend that the charges should not have been made; merely that the charges made should have represented the Defendant’s liquidated losses and not the fixed charges applied by the Defendant according to the terms and conditions in force at the time the charge was made. It is the Claimant’s case that each charge is a disproportionate penalty in that each charge does not truly represent the actual cost to the Defendant. The Claimant reminds the Defendant that the Defendant has clearly stated in their own Defence that the charges made do clearly and transparently represent the true costs of administering said charges. As we have not yet received any documentation to support the Defendant's contention that each charge debited represents the Defendant's liquidated losses, the Claimant contends that the Defendant has no defence to the claim that each charge is disproportionate and therefore unenforceable in common law. Again you have not answered the question. You need to specify the term of the contract which allows them to apply the charge eg clause xx states that if payment is not made by the specified date NR will charge £XX.

5. Particularise in further and precise detail the relevant provisions of the Unfair Terms in Consumer Contracts Regulations 1999 that make the said charges unenforcable.

 

In The Unfair Terms in Consumer Contracts Regulations 1999, Schedule 2, Regulation 5(5) states:

 

INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE REGARDED AS UNFAIR

 

1. Terms which have the object or effect of-

 

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;

 

This comes from schedule 2. You also need to quote Reg 5, 6 & 8

 

A copy of the full relevant section of this regulation is attached.

 

Yours sincerely

 

 

Celicaman

[Celicaman]

Hi Zootscot, thanks for that, How do i change the cpr18 request now, considering the date of 31st for the hearing.

Should we ask for a stay to allow time to send info, The NR cpr request was only ever made by NR & not the court.

 

CM

[zootscoot]

Did you send anything to the court?

[Celicaman]

Yes we sent copy of everything to the court, including copy of our cpr18 request

Cm

[Celicaman]

When we received & answered their CPR18 request, we replied with same and also sent copies of all to the court, including their letter.

[zootscoot]

You might want to send a revised answer to the CPR request with a covering letter requesting that this should supercede the proceeding response. Send a copy to NR also.

[Celicaman]

Ok, we will do that today, well in morning anyway

Is there anything we should do/say as NR have not answered our request other than quoting their T & C's in their reply & advice that they were filing to strike out

[Celicaman]

Hi Zootscoot

how does this sound for answer to

Q2. Particularise each and every breach of contract that allegedly gave rise to the said charges......

 

According to the terms of the contract, the payments were due on the 1st of each month.

To the best of the claimants knowledge, the claimant believes that:

The first breach of contract was for the payment due 1st July 2001, which was paid on the 20th September 2001 with a subsequent penalty charge levied on the 2nd September 2001

The Second breach of contract was for the the payment due 1st August 2001, which was paid on the 30th October 2001, with a subsequent penalty charge levied on 1st October 2001

The third breach of contract was for the payment due 1st September 2001 which was paid on the 30 November 2001, with a subsequent penalty levied on the 30th November 2001.

 

It follows that with the account remaining in arrears of at least 1 month, 2 months and more, that Northern rock levied further charges to the claimant’s account for breach of contract on the following dates:

1st April 2002

3rd November 2002

4th March 2003

2nd June 2003

2nd April 2004

Unfortunately, Northern Rocks Statements, relating to the charges do not specifically detail which breach of contract each charge is for, simply that arrears charges have been made, i.e. a single arrears entry on each yearly statement with no detailed breakdown. For this reason, it is impossible for the claimant to state which subsequent late payment each particular charge is for.

 

CM

[Celicaman]

Ok with ref to

4. In relation to each of the said charges, particularise the terms of the mortgage with the Defendant (or other contractual documentation) that is claimed to be unenforceable.

 

We have a copy of the 1995 mortgage conditions

There is no mention made to charging for late/missed payments.

In the section

'Costs'

21. All reasonable liabilities, costs & expenses of any kind incurred by the society or any officer or agent of the society in respect of the property, the mortgage , any other security the society holds for the payment of the sums which the mortgage or such security or the collection of sums due under the mortgage or such security must be paid by the borrower to the society on an indemnity basis. THese costs include the costs of legal proceedings wether brought by or against the borrower or any other person.

(B) Such liabilities costs & expenses are repayable by the borrower to the society on demand. They will be added to the principal sum for the date of expenditure and will carry interest at the current rate under condition 5.

End

 

On the reverse of the offer

Costs

The society charges costs forthe provision of admin services to borrowers from time to time for such matters a arrears admin, tranfer equity, additional loans and deeds. Full current costs are available on request

[Celicaman]

Have managed to get the UTCCR stat statements 5, 6 & 8 so will print them off & highlight relevant bits, or should i just cut & Paste the relevant bits as this is not a court bundle

 

CM

[Celicaman]

Zootscoot any further advice please

[Celicaman]

Well today went to court office with my amended cpr18 request with hopefully the correct info all put in, and asked to have it added to my file, Lady says' is it for bank charges claim' seems they must get quite a few in LOL

Also sent NR a copy of same. Looks likely i will have to go next week for the hearing to see what the judge wants to do.

If nothing else this has been a steep learning curve of having to actually understand exactly what and how we are claiming and presenting it, so instead of half understanding why,and answering things incorrectly, i now think i understand it fully. The banks know all the arguments, but it is up to us as claimants to prove why we are claiming it and how.

Wait & see how this all pans out now.

 

CM

[Celicaman]

Well its court day tomorrow.

Not sure what to expect, but have prepared a witness statement asking that the court allocate to the small claims track etc

I will take copies of statement sheets & summary charges etc and maybe copies of letters as sent to NR including revised CPR18 and request to NR for same.

Will also be asking the court ( if NR Turn up ) as to why they (NR) have not responded to my request for further information and as such that the court strikes out the defence.

Will also ask about NR intimidating tactics such as CPR18 request and sending full breakdown of charges for a case i dont believe they will turn up to defend.

 

CM

[Celicaman]

Ok, just back from court.

Here's the low down.

Firstly NR Turned up, they like a day out lol, so we went into the court and after pleasantries, the judge addressed NR saying that following receipt of details 24th July (my revised request) that it seemed to him that all their questions had been answered, did they agree, well no not really but as certain things had still not been made clear, at which point he asked had we all seen the recent articles in the press etc about the OFT case etc, he then told us that he was going to Stay the case until further directions following the outcome of the oft case. I then asked if the court would allocate it to the small claims track, and he agreed straight away, at which point NR asked about the costs that they were wanting to claim, the Judge just smiled and said no way, im allocating small claims, you can take it out of the interest you dont give me, you can afford it (was trying hard not to laugh but inside doing cartwheels :D:D).

So then we left and NR asked for a private word in one of the rooms. We had a few discussions about charges etc with some off the record and obviously they/we could wait the outcome of OFT, or they go away and work out actual costings but thats expensive, or we could try to settle this out of court, etc.

after discussions, they would like me to come up with a figure that i would settle for, based upon my understanding that to process arrears accounts, it does cost them, yes we know that but how much, they cant say..............back to the circle.In our argument we state that charges are disproportionate to costs, but admit that perhaps there could be some level of charge made, yes how much..............circle, agree to disagree on it.

One point in all this is that it was made clear that NR very rarely lose claims or rather win by default/strike or whatever means and i have to admit i cant find much on them. Mortgage account arrears are based on Admin, not a service charge, or so they reckon, not same as bank accounts

Ok, we know that a charge should be between £1.50 & £4.50 as per whistleblower/irish banking & Australian case.

So what should i settle for, i would like this put to bed as it is not worth anymore of my time on it as is only worth £225 plus costs plus interest 8% stat.

I think they read these threads as when talking about banks they mentioned HSBC claims strange coinceidence ? or Paranoia ?

Any advice peeps

 

CM

[meled]

Hi CM,

 

Sounds like you had a great day in court

 

The reason there is very little on NR is because they are quite intimadating in the way they reply to the claim, few of the people that claimed on here were paid before they ever got to court and therefore it would mean that neither won or lost.

 

As for the reasonable costings - I have what they claim is the resonable costing for the arrears charge And from the "little" information that they have actually supplied you should be able to use that to get a good indication I will try and PM to you (but just have to sort out the kids dinner first....lol)

 

I definately agree that they do read these threads - as some of the information once mentioned to me was directly posted on a thread I wrote!

[Celicaman]

cheers melad, talk to you later. Going home now to have a picnic somewhere with Wolfcat, Take advantage of lovely weather, so will post later this evening

 

CM

[meled]

Hi CM,

 

I found the information needed, Nothern Rock state:

 

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.

 

I think in order to get a correct figure you will need to look back at the statements and see how many months you missed. Bearing in mind they will state that once into the three months the charge will be upped.

 

But basically as I read it for the first 3 months it the costs of a couple of letters and telephone calls - of course into this they will factor the cost of the staff and probably the costs of the facilities required to do this.

 

But into the 3rd month and the costs rise but they dont appear to do much differently from the first three months :S Except trying to explain that this is done continually!!!! So maybe a little more for these charges but not a lot I would say.

 

Hope this Helps