GE Money waiting for a court date

[df1970]

Interesting - although the judge did say "this case has not been allocated yet, therefore under CPR rules you are liable for the defendants costs if you lose today"

 

Hence, had it been allocated to the small claims track and them a summary judgement request had been I same I would not have had to pay.

 

Damon...

[df1970]

I guess 15.1 (1) says that although the judge is not obliged to award costs based on the fast track rules, he is also not obliged to protect me from costs according to the small claims rules. See below:

 

 

SECTION 15 COSTS ON THE SMALL CLAIMS TRACK AND FAST TRACK: RULE 44.9

15.1 (1)Before a claim is allocated to one of those tracks the court is not restricted by any of the special rules that apply to that track.

(2)Where a claim has been allocated to one of those tracks, the special rules which relate to that track will apply to work done before as well as after allocation save to the extent (if any) that an order for costs in respect of that work was made before allocation.

(3)(i)This paragraph applies where a claim, issued for a sum in excess of the normal financial scope of the small claims track, is allocated to that track only because an admission of part of the claim by the defendant reduces the amount in dispute to a sum within the normal scope of that track.

 

(See also paragraph 7.4 of the practice direction supplementing CPR Part 26)

(ii)On entering judgment for the admitted part before allocation of the balance of the claim the court may allow costs in respect of the proceedings down to that date.

 

SECTION 16 COSTS FOLLOWING ALLOCATION AND RE-ALLOCATION: RULE 44.1116.1 This paragraph applies where the court is about to make an order to re-allocate a claim from the small claims track to another track.

16.2 Before making the order to re-allocate the claim, the court must decide whether any party is to pay costs to any other party down to the date of the order to re-allocate in accordance with the rules about costs contained in Part 27 (The Small Claims Track).

16.3 If it decides to make such an order about costs, the court will make a summary assessment of those costs in accordance with that Part.

[Penfold92]

Exactly, I think you have been had here...Also I cannot get my head around the fact you took the wrong people to Court, yet they are defending your claim?

 

Either they are the right people or not period...They should be saying simply "wrong people your honour" and the case is struck out...Why are they using estoppel when they are saying the case has nothign to do with them...

 

Legal jargon has had you and the judge by the looks of it IMHO! I am not a laywer so please do not assume I am right, but this is how I see it and would have argued it. The Judge should be protecting you especially if this was a summary hearing and the claim had not been allocated. Surely he should have given you the option to postpone the hearing to check their arguements if they only supplied them at the last minute?

 

What do I know,

 

Penfold

[df1970]

They had 5 limbs to thier arguement - the first being the legal entity issue. If the judge disagreed they would go on to the 2nd limb and so on...

[steven4064]

So we don't know what the judges view of estoppel, charges over 6 years, etc is

[mrsfoot]

HI Damon

 

I have had a quick look over. The estoppel statement basically means that as you paid the loan off and then made a case from that loan then the Defendants can use this to stop the case going further. Basically they are saying if you had a problem with the charges you should not have paid the loan off until you have investigated them. Now we all know that can be relied on in many cases where a mortgage / loan / account has been closed....and there must be an argument against it.

 

Costs can be allocated before the track has been decided. You should have received a copy of their costs a full 24 hours before the hearing.

 

When did they decide that you were fighting the wrong people? At what stage did they tell you? This is an important part as they could be seen as being unfair for continuing with the claim if the claim was nothing to do with them?

 

It would be a good idea to get on here the judges responses for each limb they relied on. We cn then have a good read and maybe point you in the right direction.

 

Hope this helps

[steven4064]

Damon,

 

If you can, can you post the judgement when you get it

[df1970]

will do

[Goldlady]

You probably don't want to hear this but I accepted a reduced offer from GE today, much to the disgust of my OH, after reading what happened to you Damon. It was the estoppel bit that concerned me most - although I am sure it is wrong, and I decided I would rather lose a couple of hundred of my claim than risk it all.

 

I do hope you, with a little help from our friends, can get this sorted out.

[df1970]

im sure i will - well done though...

[df1970]

Still no judgement in the post this morning - perhaps the judge is giving me time to get my act together!!

[mrsfoot]

More likely to be them being snowed under. I think it took my judgement 2 weeks to come through......hang in there!

[df1970]

Got the summary judgement through today dated 30th April. Very basic - all it says is as follows:

 

Upon hearing the claimant in person and counsel for the defendant it is ordered that there be summary judgment for the defendant and the claim be dismissed.

 

the claimant to pay the defendants costs in the sum of £1080.72

 

Thats it!

 

I will type up the witness statement information later today.

 

I've been doing some research on appealing a judgement - if I choose to do so I have to do it before 21 days are up.

 

There's very little information available so I wondered if anyone knew about appealing. What I know so far is that I can appeal if there has been a mistake on a matter of law or the has been a serious irregularity.

 

 

So clutching at straws I would want to look at the legal case relating to estopple as an error of law and also to see if there are grounds for appeal relating to irregularity, as I was provided with supplimentary evidence 5 minutes before the hearing and the other parties costs were not revealed until the end of the hearing.

 

I understand that costs should have been provided 24 hours prior to the hearing.

 

However, if I appealed and lost again would I face further costs (apart from the cost to file the application) and would I be able to revise my response to their application for summary judgement?

 

What do you think?

 

 

Thanks.

[steven4064]

You should rresearch all those things.I think, though, that the summary judgement was given purely because you sued the wrong legal entity

[df1970]

The following is the section from the witness statement:

Pursuant to the agreement, the sum of £9000 was loaned to the claimants by GE Money Mortgages Ltd. The loan was secured by way of a legal charge against xx xxxxx Street, xxxxx, xxxxx, POSTCODE (The Property).

The claimants unequivocally redeemed the loan and settled the account on 1st May 2005. GE Money Mortgages Limited released its legal charge against the property as a consequence.

If, in the alternative to the contentions set out in paragraph 2 , the defendant is found to have any liability under the agreement, or for the account, it is respectfully submitted that the claimants are, by virtue of the facts set out in the paragraph above, bound by the settlement of the account and estopped from bringing the claim.

Consequently it is submitted that the particulars of claim disclose no reasonable grounds for bringing the claim and/or the claimants have no real prospect of succeeding on the claim and there is no other compelling reason why the claim should be disposed of at trial.

End of witness statement.

The duty solicitor the produced a document copied from Fisher and Lightwoods Law of Mortgage – this was the document handed to me before we went in to see the judge, which says:

(I have typed this directly from the copy)

Who is bound by the accounts

Accounts prima facie binding on all parties

54.2

An account taken between the mortgagee and mortgagor, whether it is taken in or out of court, is prima facie binding not only on the parties to it, but on other persons in the equity of redemption. It is binding therefore, on a subsequent incumbrancer. Accounts taken in an action by a subsequent incumbrancer against the mortgagor and the prior incumbrancer bind the mortgagor as to the amount of the debt due to the prior incumbrancer, so long as the judgement remains unimpeached.

When accounts not binding

54.3

The account is only binding when the parties to it represent both sides of the account. Hence the mortgagor, or a person claiming under him, is not bound by accounts taken in his absence between the mortgagee and a transferee of the mortgage and accounts taken in an action are not binding upon co-defendants, as between themselves, except so far as the relief sought by the claimant required that such accounts should be taken as between those defendants. In the case, for example, of a simple action to redeem against several incumbrancers, any accounts taken will not be binding as between them as it is unnecessary for the purposes of the judgement to take the accounts between the subsequent incumbrancers.

Inference with settled accounts

54.4

A settled account, although prima facie binding on the parties to it and on other persons interested in the equity of redemption, and although in the ordinary course not liable to be disturbed, may under special circumstances be either reopened altogether, or may be subjected to possible alteration in respect of particular items only. In the former case the order is that the settled account shall be opened and set aside and a new account taken. In the latter case, any party may object to the account in specific respects. This used to know as liberty ‘to surcharge and falsify any of the items and changes therein’, but this terminology is not used in the CPR. Moreover, when an account is admitted to contain an error, it can be purged by setting off against that error shown to have been made in another account, in favour of the person prejudiced by the first error.

Re-opening of the account

54.5

Where the reopening of the account is claimed, either fraud or specific error must be alleged and proved. The account will be opened altogether in the case of fraud and this notwithstanding the lapse of a great numbers of years.

Moreover, apart from fraud, it will be reopened if the relation of the parties, or the manner in which the settlement took place, or the nature of the error proved, shows that the settlement ought not to be considered as an act binding on the parties who signed it and that it would be inequitable for the accounting party to take advantage of it.

The accounts will be more readily opened where the relationship of a solicitor and client exists, ‘provided, that is, excessive charge or error is shown’ but unless fraud, or error amounting to evidence of fraud, in the bill of costs which forms the subject of the security, is relied on, the specific items alleged to be erroneous must be identified and proved.

The account may also be reopened if it contains errors of considerable extent both in number and amount. If a fiduciary relation exists between the parties, where, for instance, the accounting party is an agent or a trustee, fewer errors will be required for the making of such an order.

A single error of large amount has been made the ground for reopening the whole account, but ordinarily it will be sufficient to give leave to surcharge and falsify.

(End of copy – in the original copy there are many references to various court cases that support the statements that are made – I guess these are precedents)

So...

The sections in bold were highlighted by the solicitor – he said that the claim neither mentions error or fraud and according to the information from Fisher and Lightwood, the only grounds for reopening an account is error or fraud.

If I make a claim against the correct legal entity I guess I will have to battle this estoppel issue and address either error or fraud.

I guess it was my error for thinking the charges were lawful???????????

Cheers.

[steven4064]

And error or fraud (or concealement) arethe same grounds for going back beyond 6 years (s32 of the Limitaions Act 1980)

[df1970]

Having given this some thought over the long weekend, I am considering starting again with the correct legal entity - with a prelim and LBA.

 

In both letters I am thinking of including an arguement against estoppel on the basis that Firstly it was my error for paying off the account without questioning the charges. Secondly the charges are unlawful, so either GE made an error in braking the law or they have done so knowingly and therefore their conduct is fraudulent.

 

How does that sound?

[df1970]

Web dictionary definition of fraud:

 

 

1. intentional deception resulting in injury to another person

 

2. imposter: a person who makes deceitful pretenses

 

3. something intended to deceive; deliberate trickery intended to gain an advantage

 

I would suggest that both points one and two relate to unlawful charges.

 

Damon30

[zootscoot]

Hi Damon,

 

Sorry things did not go well at the hearing for summary judgment.

 

If you are considering making a fresh claim its probably best not to refer to the estoppel argument in your letters. There's no point in alerting them to what arguments they could possibly use.

 

The extract the solicitor gave you does not seem to be relevant to estoppel and you are not seeking to reopen the account but simply to claim back money paid out under what you allege to be an unenforceable term. The action is knwn as an action for money had and received.

 

The estoppel argument is a defence to such restitutionary actions. It applies where you have paid money and at the time dispute that the money is due but pay in any event. This implies that you were willing to pay the money irrespective of whether it was due and you are then estopped from asserting that it wasn't legally due. As far as I know the estoppel argument only applies where you were aware that there was a possibility that the money wasn't legally due.

 

If this is not the case and you did not become aware of the possibility that the charges may not be legally enforceable until after you paid them then you should be able to get around the estoppel argument.

 

What did you put in your Particulars of claim and what charges are you claiming?

[zootscoot]

Web dictionary definition of fraud:

 

 

1. intentional deception resulting in injury to another person

 

2. imposter: a person who makes deceitful pretenses

 

3. something intended to deceive; deliberate trickery intended to gain an advantage

 

I would suggest that both points one and two relate to unlawful charges.

 

Damon30

 

You don't want to be alleging fraud in your claim if you can help it as this will automatically fast track the claim.

[df1970]

I was hoping to ward them off at least address error/fraid in my prelim. They will know who I am and how they won first time as although a different legal entity they are the same company.

 

Here's my POC (as I said I think it contains errors):

 

IN xxxxxx COUNTY COURT

 

IN THE CASE BETWEEN:

Mr xxxxxxxx and Mrs xxxxxxx

CLAIMANT

and -

GE Money Servicing Ltd (Formerly Igroup Mortgages Ltd)

DEFENDANT

________________________

Particulars of Claim

________________________

1. The claimants had a Mortgage Account No “111111111” with the defendant, governed by the defendant’s Standard Terms and Conditions (“the contract”).

2. The claimants would like to respectfully point out that this claim is in respect of Charges applied to a mortgage account as a result of a breach of contract on the part of the claimants. This claim is not concerning the recovery of overdraft charges on a current bank account. This claim is therefore not effected by the outcome to the OFT test case and we respectfully request that this claim is allowed to proceed to its natural conclusion through the court.

 

3. Mortgage charges differ to current account overdraft charges, insofar as there is a clear breach of contract. Under the terms of the mortgage the claimants were required to make payments by a specified date. In breach of this term the claimants made payments late and in consequence of this the Defendant applied charges to the account. There is thus no question of law regarding whether the charges are capable of amounting to a penalty, it is solely an issue of fact as to whether the level of charge is in fact a penalty.

 

4. Furthermore as there is a clear breach of contract there is no question about whether or not the UTCCR applies as it has been held to apply to default provisions in Director General Fair Trading V First National Bank plc [2002] 1 All ER 97.

5. During the period in which the Account had been operating the Defendant automatically debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied as the charges were capitalised. The charges were applied between 20th April 2001 and 5th July 2004. A list of the charges and interest on the charges is annexed to the Particulars of Claim.

 

6. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

7. The Claimant contends that:

 

a) The charges debited to the Account are punitive in nature; are not genuine pre-estimates of costs incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

 

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of

i) the Unfair Terms In Consumer Contracts Regulations 1999 particularly but not limited to Regulations 5, 6 and 8 and Schedule 2, 1 e); and

ii); the Unfair Contract Terms Act 1977, particularly but not limited to sections 3 and 11 and Schedule 2 and

iii) the common law relating to liquidated damages and penalties in contracts.

 

8. To the extent that it is found that the Defendant’s charges are for the provision of services the Claimant contends that the price thereof is unreasonable pursuant to section 15 of the Supply of Goods and Services Act 1982.

9. Accordingly, the claimant claims:

 

a. The return of £xxxxxxx taken by the defendant in charges and interest applied to the charges between 20th April 2001 and 5th July 2004. See attached schedule.

 

b. Court costs

 

c. Compound interest at the contractual rate of 17.6% APR from 20th April 2001 and 5th July 2004 of £xxxxxxx, and up to the date of judgement or earlier payment. See attached schedule.

 

d. In the alternative to c., interest under s.69 of the County Courts Act 1984 at the rate of 8% a year, from 20th April 2001 and 5th July 2004 of £xxxxxxx and also interest at the same rate up to the date of judgement or earlier payment.

The claimants believe that the contents of these particulars of claim are true.

[df1970]

The charges are arrears admon fees for paying late at £40 a go and direct debit/cheque failures at £40.

 

Damon30

[zootscoot]

Some suggested amendments in red

 

I was hoping to ward them off at least address error/fraid in my prelim. They will know who I am and how they won first time as although a different legal entity they are the same company.

 

Here's my POC (as I said I think it contains errors):

 

IN xxxxxx COUNTY COURT

 

IN THE CASE BETWEEN:

 

Mr xxxxxxxx and Mrs xxxxxxx

 

 

CLAIMANT

 

 

and -

 

 

 

GE Money Servicing Ltd (Formerly Igroup Mortgages Ltd)

 

 

DEFENDANT

 

 

________________________

Particulars of Claim

________________________

 

 

 

1. The claimants had a Mortgage Account No “111111111” with the defendant, governed by the defendant’s Standard Terms and Conditions (“the contract”).

 

(This but is not related to your actual claim and therfore should not strictly speaking be in your POC

2. The claimants would like to respectfully point out that this claim is in respect of Charges applied to a mortgage account as a result of a breach of contract on the part of the claimants. This claim is not concerning the recovery of overdraft charges on a current bank account. This claim is therefore not effected by the outcome to the OFT test case and we respectfully request that this claim is allowed to proceed to its natural conclusion through the court.

3. Mortgage charges differ to current account overdraft charges, insofar as there is a clear breach of contract. Under the terms of the mortgage the claimants were required to make payments by a specified date. In breach of this term the claimants made payments late and in consequence of this the Defendant applied charges to the account. There is thus no question of law regarding whether the charges are capable of amounting to a penalty, it is solely an issue of fact as to whether the level of charge is in fact a penalty.

4. Furthermore as there is a clear breach of contract there is no question about whether or not the UTCCR applies as it has been held to apply to default provisions in Director General Fair Trading V First National Bank plc [2002] 1 All ER 97.)

 

5. During the period in which the Account had been operating the Defendant automatically debited numerous charges to the Account in respect of [delete - purported] breaches of contract on the part of the Claimant [add - in failing to make payments on the contractually agreed date. The Defendant ] also charged interest on the charges once applied as the charges were capitalised. The charges were applied between 20th April 2001 and 5th July 2004. A list of the charges and interest on the charges is annexed to the Particulars of Claim.

 

6. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant [add - acopy of which is attached]

 

7. The Claimant contends that:

 

a) The charges debited to the Account are punitive in nature; are not genuine pre-estimates of costs incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are [add extragant and unconscionable in relation to] [delete not intended to represent or related to any alleged] any actual loss, but instead [add act in terrorem intended to ensure contractual compliance and deter a breach] [delete of conunduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.]

 

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of

i) the Unfair Terms In Consumer Contracts Regulations 1999 particularly but not limited to Regulations 5, 6 and 8 and Schedule 2, 1 e); and

[Delete - ii); the Unfair Contract Terms Act 1977, particularly but not limited to sections 3 and 11 and Schedule 2 and

iii) the common law relating to liquidated damages and penalties in contracts.]

 

[delete -8. To the extent that it is found that the Defendant’s charges are for the provision of services the Claimant contends that the price thereof is unreasonable pursuant to section 15 of the Supply of Goods and Services Act 1982.]

9. Accordingly, the claimant claims:

 

a. The return of £xxxxxxx taken by the defendant in charges and interest applied to the charges between 20th April 2001 and 5th July 2004. See attached schedule.

 

b. Court costs

 

c. Compound interest at the contractual rate of 17.6% APR from 20th April 2001 and 5th July 2004 of £xxxxxxx, and up to the date of judgement or earlier payment. See attached schedule. - You would need to plead on what ground you are entitled to compound interest

d. In the alternative to c., interest under s.69 of the County Courts Act 1984 at the rate of 8% a year, from 20th April 2001 and 5th July 2004 of £xxxxxxx and also interest at the same rate up to the date of judgement or earlier payment.

 

The claimants believe that the contents of these particulars of claim are true.

[zootscoot]

The charges are arrears admon fees for paying late at £40 a go and direct debit/cheque failures at £40.

 

Damon30

 

 

You need to check your T & Cs to see if you are prohibited by your contract from having a direct debit returned or obliged to ensure that it is not returned. If not you will only be able to rely on UTCCRs in relation to those charges.

 

You will also need to plead the term in the contract which states that you must pay by a certain date.

[Penfold92]

i) the Unfair Terms In Consumer Contracts Regulations 1999 particularly but not limited to Regulations 5, 6 and 8 and Schedule 2, 1 e); and

ii) the common law relating to liquidated damages and penalties in contracts.

 

 

Hi Zoot,

 

Can you please clairfy what in particular these regulations say...in lay mans terms of course...?

 

Thanks,

 

Penfold