Penfold V Amber Home Loans

[Penfold92]

Hi,

 

Started the process against Amber and am nearing a final LBA stage. Can anyone tell me if they have had dealings with this lots and whether they had any joy or just the usual silence? Also are the mortgage fees claims being stayed as well or not being included yet?

 

My claim is very small aroun £300 and so I really do not want to pay the £120 court fees and hope they see sense...

 

Thanks,

 

Penfold

[Penfold92]

BUMP....

 

Anyone help/ advice please....

 

Penfold

[Penfold92]

Hi all,

Well I have come a long way since posting this up originally and I have jsut sent Amber a final LBA. I know it is months later, but I thought what the hell might as well go for them...

I am claiming the charges on the account, exit fees and also...don't laugh now...damages for the continued processing of my data. I figure that whilst at court I can try to correct this too...

So here are the POC's that I am thinking of using, any advice corrections would be appreciated....

Particulars of claim

 

 

• The Claimants are said to have had a Mortgage account (“the Account”) with the Defendant. This was originally opened with GMAC RFC and that account was then sold on to the Defendant. This was opened on XX/XX/200X with GMAC RFC and subsequently closed on XX/07/2007 with the Defendant.
  
• The Claimants are claiming the return of £XXXX taken by the Defendant by way of penalty charges in the form of a combination of failed direct debit fees, arrears fees, exit fees and charges for telephone calls on mortgage account no xxxxxxx.
  
• A schedule of charges detailing the charges is attached to these particulars of claim
  
• These charges relate to the Claimants breaches of the contract signed with GMAC RFC. The Defendant's charges do not amount to a genuine pre-estimate of loss and are intended to deter a breach.
  
• They are therefore unenforceable contrary to common law as affirmed in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79.
  
• Further, as a disproportionate penalty it is invalid under the Unfair Terms in Consumer Contracts Regulations 1999. Para.8 and sch.2(1)(e).
  
• The Claimants have repeatedly asked the defendant to justify these charges but they have declined to do so.
  
• The Claimant sent the Defendant a Statutory Notice pursuant to Sections 10 and 12 of The Data Protection Act 1998.This was regarding the continued processing of the Claimants subject data after the conclusion of the contract.
  
• There is absolutely no legislation that allows the Defendant to collate, process or distribute any subject data unless there is express written permission from the data subject.
  
• That consent was terminated upon the cessation of the contract and, as stated earlier, the Claimants reiterated this revocation in past correspondences, and by the Statutory Notice served in a recorded delivery letter dated XX/XX/XXXX.
  
• The contract neither included any other permission, nor did it imply that the Defendants perceived 'rights' to process the Claimants data would be ‘in perpetuity’. There was also no clause contained within the contract that stated that GMAC RFC (and therefore the Defendant as purchaser of the account) had any arbitrary right to continuing processing data for up to six years after the ending of the contract.
  
• The Defendant is no doubt aware that any non-agreed disclosure of personal data to third parties, without express written permission, is a criminal offence under Section 35, of the Data Protection Act.
  
• Accordingly the Claimant Claims:

a) The Defendant is to remove all such data from automated process systems, as per the provisions of Part II, Section 12 (1) of the Data Protection Act and cease to continue storing, processing or communicating the Claimants data

b) the return of the amounts paid to the Defendant in the sum of £XXXX

c) Court Costs, Litigant in person costs and redress for damages as per the remit of the Data Protection Act;

d) The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from XX/XX/XXXX to XX/XX/XXXX of £XXX and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.XX

We believe that the contents of these particulars of claim are true

Any views or comments would be appreciated….

[Bona]

Am I right in thinking you are claiming around £300 .00 if so I would wait

the cost which you would have to meet could be well exceed you claim if you wait things may become a little clearer in the next few months I am not aware of other claims againt this company so if that is right they are not known for their shall we say agresive / unreasonable behaviour which in itself could be significant

[Penfold92]

Hi Bona,

 

I will be claiming £445 plus interest, BUT I am also going after damages, which I believe equate to around £1500 based on the continued processing of my data nda effecting my credit rating and meaning a £20K loan will be 2% higher and so that is roughly the differnce in the payments that would be made over 10 years...

 

As for waiting according to Zoots sticky these cases should not be stayed and if they are aggresive no problem bring them on...

 

Hope that clarifies my position,

 

Penfold

[Bona]

you have six years so dont jump the gun wait I cannot see any advantage of going a head untill you are sure of a positive outcome

[Penfold92]

Hi bona,

 

I appreciate your comments, but I am wondering why would I be any more sure of a positive outcome later on? The OFT Case does not apply in this case and I am not after ERC fees...So please enlighten me why I should not go after them now?

 

Thanks,

 

Penfold

[Bona]

I appreciate that but you will have to pay any reasonable costs if you win or loose when the oft case is concluded As long as its the right result many companies I believe will capitlate quicker

[Penfold92]

I appreciate that but you will have to pay any reasonable costs if you win or loose when the oft case is concluded As long as its the right result many companies I believe will capitlate quicker

 

Hi Bona,

 

Have a read of this: http://www.consumeractiongroup.co.uk/forum/mortgage-companies/116583-has-your-mortgage-claim.html

 

As you will see Mortgage Charges and bank charges are not the same thing and you can just maybe get it through the back door. I have no problem with forking out the money to see what happens and feel that if it means success 2 years earlier then I'd rather that then wait and see...

 

Hope that clarifies my view on this,

 

Penfold

[Penfold92]

HI,

 

Can anyone point me in the direction of the court bundle for Mortgage charges? I see the initial paperwork, but nothing else...

 

Help would be appreciated...

[Penfold92]

OK so here we go....N1 form filed yesterday at Luton County Court...Let the games begin...

[Penfold92]

Well to keep anyone informed Amber had not acknowledged the claim today (their last day to do so) and so I have left a letter to be opened first thing Monday morning requesting the Default Judgment.

 

If I get it then things will get interesting...

 

Penfold

[Penfold92]

OK got Judgment by Default through the post today. Any suggestions as to what I should do next? Should leave it the 28 days before attacking them for money or send them a subtle little letter asking for them to act?

 

Penfold

[jowalshy]

Good evening Penfold. I have had a quick read of this thread and will now pop off for a little investigation on how to proceed. Someone may in the meantime pop on and answer you.

 

Ohh and huuuuge congrats on winning by default

[jowalshy]

I have found this thread that may be of some use:-

 

http://www.consumeractiongroup.co.uk/forum/bailiffs/99563-got-judgment-how-get.html

[jowalshy]

also this one:-

 

http://www.consumeractiongroup.co.uk/forum/legalities/124731-ive-got-judgement-default.html?highlight=judgement+by+default

 

I think that if Amber have ignored all the court stuff regarding your claim, you should wait the 28 days and hope that they don't try and have the judgement set aside. You never know, if they ignored all the other stuff, they might ignore the judgement as well and then you can go for your money

[Penfold92]

also this one:-

 

http://www.consumeractiongroup.co.uk/forum/legalities/124731-ive-got-judgement-default.html?highlight=judgement+by+default

 

I think that if Amber have ignored all the court stuff regarding your claim, you should wait the 28 days and hope that they don't try and have the judgement set aside. You never know, if they ignored all the other stuff, they might ignore the judgement as well and then you can go for your money

 

Hi Jo,

 

Thanks for the replies...(not on main email account comp so don't know when people reply...)

 

But my judgment does not mention the within 28 days... It says they should pay me yesterday...lovely... and they can apply to set aside etc, but no mention of time just they must pay...LOL

 

I wonder if the standard judgments changed or if the judge has purposly not given a time limit

 

Penfold

[jowalshy]

I think, from what I read on the other thread i posted, if you apply for an enforcement of the judgement within the 28 days, then Amber will have time to set it aside. If you wait 28 days, then they would have to come up with some huuuuuge excuse to set it aside.

 

 

 

Default Judgment where the debtor has not bothered to answer any documentation from the Court or has failed to file a Defence. When this is obtained the debtor can apply to have it Set Aside, (Enforcement stopped and the whole thing go back to a Hearing) if you try to Enforce it within 28 days of it being granted. After this period they will have to have a good reason.

[Penfold92]

Yup I read that too and the other thread. So it appears that is to do with informing them etc, but from what I read from TomTerm you can apply to set aside after that anyway. But the key question is will they so I figure write and ask for the dosh, if they pay up great, if they try to apply at least I am cracking on with the trial rather than waiting for them to apply later.

 

I have letters going back to last year with these guys asking them to stop processing my data and also refund payments they did not do this and I can show further requests by me that they ignored too. I have a letter from them saying they are still looking into my claim whilst the Court case was in place so if they try the "did not recieve the info" I can show the Judge correspondces going back nearly a year all of which were reieved by them...how convenient if they did not get Court papers....

 

I think they will pay now after someone has cocked up, but just wondered if anyone knew of anymore than these two cases as UI had already seen them...Still living in hope there are others out there...

 

Penfold

[jowalshy]

Yes I think you can have their set aside set aside, but this would then cause more agro and probably more than the 28 days from now to wait to pounce on them.

[Penfold92]

But my concern is that it does not say this on my judgment...is this part of the CPR's? Or are we simply saying how can they ask to set aside a judgment after a month of knowing there was one out there...Is that what we are saying?

 

Basically I do not want to wait and then be hit with a set aside...I'd rather know right now...patience was never one of my strong points...LOL

 

Penfold

[Penfold92]

OK think about this logically...for a sec...forgett he law as such...if they did not know about the court claim...they now have a judgment would they not send a set aside straight in? Why try and wait anyway....I just mean it is a risky game for them to play so surely if they have not responded within even a week....they have a weak case for saying they did not know...now the fact there is no time limit in my judgment means I feel a week is long enough?

[jowalshy]

patience was never one of my strong points...LOL

 

Penfold

 

I had noticed . Only joking. I'll have a look at the court site and see what it says there.

 

Nighty night

[jowalshy]

On the court site it says that can take between 5 to 10 days in order to issue a warrant of execution.

 

Personally (and I know you probably won't like it), I would wait at least 14 days and then go for a warrant of execution. That way it will be nearly 28 days from the date of judgement (thats if it takes 10 days to get the warrant).

[Penfold92]

On the court site it says that can take between 5 to 10 days in order to issue a warrant of execution.

 

Personally (and I know you probably won't like it), I would wait at least 14 days and then go for a warrant of execution. That way it will be nearly 28 days from the date of judgement (thats if it takes 10 days to get the warrant).

 

mmmm...ok I will comprimise and wait till next Monday then post it first class. Remember I am not doing the Warrant only sending this:

 

Dear Madam,

Claim No 8LU00XXX

We are very disappointed that you have failed satisfactorily to respond to our previous letters and we had to take Legal Action against your Company.

By now you, or your legal department, will have received a formal notice from Luton County Court advising you of the judgment that has been awarded in this case. In case the notice sent to you has by some mischance gone astray, we enclose a copy.

 

We are very disappointed that this could not have been settled earlier without Court Action, but in any event we did expect you to at least have the courtesy to respond to the Courts instructions. At this time we have not received any payment from you or correspondence advising us when payment shall be made.

 

If we have not received your cheque for £3580.56 within seven days of you receiving this letter then we shall request a Warrant of Execution for the collection of the debt. This will result in further costs being added to the sum payable and the probable recording of the judgment in the lists of Registry Trust Ltd.

 

A copy of this letter has been forwarded to Luton County Court.

 

Yours sincerely,

 

This then means they already had 7 days from receiving the judgment to apply to set aside if they want to argue that is takes longer than that to apply then good luck to them because I will argue that it should take them no longer than 10 seconds to say "****, we have a default judgment against us for something we did not know about so apply ASAP to set aside..." or words to that effect...LOL

 

What do you think?

 

Penfold