These guys at Gmac don’t get it; do they?**FINISHED**

[donelly]

These guys don’t get it; I have sued one of the mortgage companies in town for refund of unlawful charges and they have put in a counterclaim on the ground that if the court find their charges to be unlawful under the relevant Acts and regulations they would like to claim back their costs of defending my claim by way of counter claim, which will be in the region of what I am claiming.

 

My defence to their counter claim is below; I will very much appreciate if anyone in the forum can suggest amendments to by defence of their counter claim.

 

I will also be sending a letter to the Law Society reporting the company's legal team for intimidation and disingenuous interpretation of the Law.

 

I am now more determined than ever to fight the case through to the end and I am beginning to look forward to my day in court.

 

Your help will be highly appreciated.

 

 

 

 

= = = = = = = = =

• The Mortgage Condition 2000 under which the defendant seeks to claim cost does not apply in this instance.

I. Section 10 of the Mortgage Condition 2000 “Power to recover Costs and other expenditure” does not apply in this instance. The power to reclaim costs and expenditure in this clause specifically applies under three conditions none of which included “costs of defence” against litigation challenging the legality of the defendant’s regime of charges or the claimant exercising his right to challenge unfair terms in the contract.

 

II. Clause (10 a) “administering the mortgage debt. This includes any costs and expenses incurred by the company as a result of the borrower not paying any money it owes to the company when the borrower is obliged to pay it;” This clause is invalid as a “defence” against litigation challenging the legality of the defendant’s regime of charges cannot be classified as “administering a mortgage debt account” it is in simple term “costs of defence” which can only be recovered through a court order. The attempt by defendant to classify “costs of defence” as “costs of administering mortgage debt account” is at best intimidatory and at worst disingenuous interpretation of the clause which in itself renders the clause and by implication the entire “Mortgage Condition 2000” unfair under the Unfair Terms in Consumer Contracts Regulations 1999 and therefore the contract unenforceable

 

III. Clause (10 b) “making any successfully application for payment of a direct debit;…” This clause is invalid and can therefore not be relied upon as a basis for claiming cost by way of counterclaim.

 

IV. Clause (10 m) “taking any reasonable action as a result of the borrower’s breach of these conditions;…” Since the two clauses in (10 a and b) of the Mortgage Condition 2000 are invalid, clause (10 m) is therefore by implication invalid, further more the issue before the court is not because of a breach on the part of the claimant but rather it is an issue of fact; the issue is only whether the money levied by the Defendant in respect of its customer’s contractual breaches exceeds their actual costs incurred. Therefore the defence and counterclaim action is not as a result of the claimant’s breach of the conditions of the contract rather it is as a result of the claimant exercising his right under the law to challenge the unfair terms in the mortgage contract – “Mortgage condition 2000” consequently the clause (10 m) in the defendant’s defence and counter claim is invalid.

 

• Section 15 of supply of Goods and services Act 1982 as quoted by the defendant does not apply in this instance as a “defence” against litigations by the claimant cannot be classified as service to the “plaintiff” consequently The Supply of Goods and Services Act 1982 is invalid.

• The claimant will particularly like to draw the court’s attention to the attempt by the defendant to interpret clause 10(a) of the Mortgage Condition 2000 to include “costs of defence” which is at best intimidatory and at worst disingenuous

• The claimant in his original claim argues that the terms of the mortgage is unfair under the Unfair Terms in Consumer Contracts Regulations 1999, if this is so; the counterclaim is invalid as a consequent of relying on unfair terms which is the main issue of this proceedings.

[Joons2]

Do you have a copy of the counterclaim itself?

[donelly]

Here is the relevant section of the counterclaim:

SET-OFF IF RELEVANT TERMS ARE FOUND TO BE INVALID

16. Alternatively, if the relevant terms of the Mortgage Agreement that give rise to the right of the defendant to charge the disputed fees are invalid, whether by means of the common law penalty clauses jurisdiction, or under the Unfair Contract Terms Act 1977, or under the Unfair terms in consumer contract regulations 1999, or under the Supply of goods and services Act 1982, or otherwise, then the defendant is entitled to recover its costs under clause 10 of the Mortgage Condition 2000 (please see my defence for the relevant section referred to) or alternatively, the Defendant is entitled under section15 of the Supply of Goods and Services Act 1982 to a reasonable charge for the relevant Services. The Defendants puts the claimant on notice that the costs actually incurred, or the reasonable charge payable, may exceed the Disputed Fees, although they are not expected to be greater than £1500 in total.

[sammyjammy]

Sorry if this seems a bit thick but are they saying if you win they will then sue you for their costs? Its bizarre and surely not allowed?

 

Sam

[zootscoot]

Your defence looks very thorough. I don't think there is anything I can add.

 

I don't think they have a leg to stand on here for all the reasons you have given. They are simply trying it on as a scare tactic.

 

Best of luck

 

Zoot

[JonCris]

In other words because you unknowingly signed an agreement whenever that has now been revealed to have unlawful T&C's you still can't claim. What a load of complete tosh.

[donelly]

@ SammyJammy

 

Yes, that is exactly what they are saying; which was why I drew the court's attention to it in my defence and I will be reporting them to the law society as well. It is a scare tactic to force me to withdraw my claim (which in its self is unfair under the Unfair Terms in Consumer Contracts Regulations 1999).

[JonCris]

The defences of the indefensible become more & more bizarre. Like watching a very slow train wreck. Great init!

[essjaysea]

I could be wrong, but it doesn't look to me as if they are counterclaiming in order to recover their litigation costs as a result of your initial claim. It seems that they are suggesting that they will seek to recover their costs that they incurred as a result of your alleged breach(es) of contract.

 

If that is the case, then they will obviously have to disclose those costs, and how they were arrived at, to have any chance of success.

 

As I say , I could be wrong....

[JonCris]

I think your correct & its an attempt to frighten claimants. If they keep doing it one of them is going to make a terrible mistake & actualy end up in court having to disclose their true costs.

[CrispDust]

"Bring it on" may be an apt phrase here methinks?

[tamadus]

thought like shooting themselves slowly come to mind

[donelly]

@ essjaysea

 

At first I thought they were counterclaiming for the actual costs resulting from my breaches however reading through the lines I realised they were counterclaiming for the costs of defending my claim. I am claiming £1000 plus interest their actual costs resulting from my breaches can't exceed what they've already charged me since the only thing they do is send me a monthly statement could that have cost more than the £50 they charged me per statement? ..."may exceed the disputed fees" suggest they are costs yet unknown which can only be costs of defending my claim.

 

=====

"The Defendants puts the claimant on notice that the costs actually incurred, or the reasonable charge payable, may exceed the Disputed Fees, although they are not expected to be greater than £1500 in total."

[essjaysea]

I feel that they may be inferring that their actual costs resulting from your alleged breaches may exceed the amount you are claiming, although actually proving this could be problematic for them.

 

I just think they have thrown that in to frighten you off.

 

When it comes to the AQ stage, refer to that clause in their defence and make a strong request for standard disclosure

[donelly]

Fortunately I can still ammend my defence to their counterclaim, consequently I have added the following to my defence just to make sure that I have every angle covered, your suggestions will be highly appreciated.

 

----------------

• In the event that the defendant is counterclaiming for actual costs resulting from the claimant contractual breaches and not litigation costs; then the claimant pleads as follows:

[*]

I. That the defendant discloses all the actions taken e.g. called claimant, sent a statement etc for each of the breaches in appendix i

II. That the defendant discloses the actual costs incurred for each action taken as a result of the claimant breaches in appendix i

III. That the defendant discloses how it arrives at those actual incurred costs.

• That this counterclaim for the actual costs is an abuse of court process because the claimant had repeatedly asked for the actual costs incurred as a result of the claimant breaches but the defendant failed to reveal the details of their penalty-charging regime; had these been revealed perhaps there wouldn’t have been a claim brought against the claimant in the first place consequently, the claimant would respectfully ask that the court in this case, not withstanding allocation to the small claims track, order standard disclosure. The claimant understands that it is in the courts discretion to do so. The claimant believes this would bring a rapid end to this litigation.
• In the defendant defence and counterclaim, the defendant argued (paragraph 9.1 of defence and counterclaim ) that account in arrears requires and are subject to greater scrutiny by the defendant’s employee and agents than account that paid up to date etc… Whilst this may be true the defendant had and his already paying for this service by way of higher interest rate which is currently at 0.75% above the defendant’s Standard variable rate equivalent of about £139 per month even though the claimant ‘s account has being paying up to date for the last 16 months. Furthermore the issue is only whether the money levied by the Defendant in respect of the claimant’s contractual breaches exceeds their actual costs incurred, if this so then it renders the “fee” a penalty which is unfair under common law.
• The claimant pleads that making the claimant pay for the same service twice by way of an interest rate currently at 0.75% above the defendant Standard variable rate and by way of a monthly fee is unfair and does not pass the “good faith” test under the Unfair Terms in Consumer Contracts Regulations 1999.
• The claimant in his original claim argues that the terms of the mortgage are unfair under the Unfair Terms in Consumer Contracts Regulations 1999, if this were to be so; the counterclaim is invalid as a consequent of relying on unfair terms consequently the entire mortgage terms become unenforceable.

[zootscoot]

Hi Donelly,

Some suggested changes in red.

Best of luck

Zoot

• • In the event that the defendant is counterclaiming for actual costs resulting from the claimant's contractual breaches and not litigation costs; then the claimant pleads as follows:

  [*]

  I. That the defendant discloses all the actions taken e.g. called claimant, sent a statement etc for each of the breaches in appendix i

   

  II. That the defendant discloses the actual costs incurred for each action taken as a result of the claimant breaches in appendix i

   

   

  III. That the defendant discloses how it arrives at those actual incurred costs.

  • That this counterclaim for the actual costs is an abuse of court process because the claimant had repeatedly asked for the actual costs incurred as a result of the claimant breaches but the defendant failed to reveal the details of their penalty-charging regime; had these been revealed perhaps there wouldn’t have been a claim brought against the claimant in the first place consequently, the claimant would respectfully ask that the court in this case, not withstanding allocation to the small claims track, order standard disclosure. The claimant understands that it is in the court's discretion to do so. The claimant believes this would bring a rapid end to this litigation.
  • In the defendant's defence and counterclaim, the defendant argued (paragraph 9.1 of defence and counterclaim ) that an account in arrears requires and are subject to greater scrutiny by the defendant’s employee and agents than account that paid up to date. [etc…delete ]Whilst this may be true the defendant had and is already paying for this service by way of higher interest rate which is currently at 0.75% above the defendant’s standard variable rate equivalent of about £139 per month even though the claimant's account has being paying up to date for the last 16 months. Furthermore the issue is only whether the money levied by the Defendant in respect of the claimant’s contractual breaches greatly exceeds their genuine pre-estimate of loss, if this so then it renders the “fee” a penalty which is unlawful under common law. Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79).
    
  • The claimant pleads that by making the claimant pay for the same service twice by way of an interest rate currently at 0.75% above the defendant's standard variable rate and by way of a monthly fee is disproportionate and does not pass the “good faith” test under the Unfair Terms in Consumer Contracts Regulations 1999. Paragraph 1(e) of Schedule 2 to the Regulations provides that a term “requiring any consumer who fails to fulfil his/her obligation to pay a disproportionately high sum by way of compensation” may be unfair.
  • [Delete The claimant in his original claim argues that the terms of the mortgage are unfair under the Unfair Terms in Consumer Contracts Regulations 1999, if this were to be so; the counterclaim is invalid as a consequence of relying on unfair terms consequently the entire mortgage terms become unenforceable]- This is not the case only the specific terms become unenforceable the remaining parts of the contract are valid]

[donelly]

Thank you very much for your suggestions zoot

[maroonfox5]

donelly.

 

Just a quick Q on this subject of counterclaiming.

 

Did your Morgage Co pay a fee for their counterclaim?

 

I've been told by MCOL that unless the court fee is paid and the counterclaim served it does not count.

 

MF5

 

Ps thanks for the link to this thread from Zoot.

[donelly]

I was told the same thing by the court; apparently they've now paid the fee and my claim is coming up for hearing on the 15th December.

[GraemeC]

Good luck with it donelly, though I cant imagine that you're going to need it!

 

This could finally be the one where they have to reveal their true costs!

[maroonfox5]

Graemec.

 

Can't see it can you?

 

I think they'll cough up before the court date.

[donelly]

my claim in coming up for hearing on the 15th December and the Judge had ordered as follows:

 

"Each party must deliver to every other party and to the court office copies of all documents (including any expert's reports) on which they intend to rely at the hearing no later than 14 days before the hearing"

 

"Signed statements setting out the evidence of all witnesses on whom each party intends to rely must be prepared and included in the documents referred to at paragraph 1 above. this included included the evidence of the parties themselves and any other witnesses"

 

=====

 

I will be grateful for any advise on how best to prepare for the hearing

[zootscoot]

Hi Donelly,

 

Have a look at Bookworm's court bundle:

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/33060-basic-court-bundle.html

 

Have a good read through and get the documents sent off in time. The signed witness statment must include all the arguments you are going to rely on in court.

 

If you need any further help just shout and you might want to post your witness statment here for comments.

 

Best of luck

 

Zoot

[donelly]

Thanks Zoot for the link.

 

Can I use my previous statement (counterclaim defence) as the new statement to include in the bundle? if not what do I need to write in my statement in addition to previous statement. Is their counterclaim valid since they haven't specified exactly how much they are counterclaiming for even though they've now paid the counterclaim court fee. I also have my SAR bundle from them which confirms that the arrear letters were auto generated.

[zootscoot]

Hi Donelly,

 

You can use your defence for counterclaim as part of the witness statement but you would also need to address the arguments in your claim. This would be similar to what is in your particulars of claim but perhaps a little more detailed.

 

It is important to make sure you include all the arguments (with case statutory references)you need to rely on because if they are not included you will not be able to raise them. All cases and statutes referred to in your statement must be included in your bundle.

 

The bundle should also include all correspondence including your SAR and schedule of charges.

 

All the best

 

Zoot