Mortgage case being put to multi-track???

[borgbaiter]

THIS IS REGARDING MORTGAGE PENALTY CHARGES

 

First post on CAG so hope its in the right place, if not please let me know or move it .

 

hi all

 

ive been trying to reclaim penalty charges on a mortgage acount sice the middle of last year. started mcol in december. case was stayed for parties to negitiate. and now the court has sent me an order. this order is very complicated and i dont think im grasping all of its implications. any light people can shed will be gratefully recieved. especially with regard to what im expected to do in response to it.

 

 

"On wednesday, 23rd April 2008

 

District Judge S.R.Mitchell sitting at Falklands House, 25 Southway, Colchester, Essex considered the papers in the case and

 

ordered that;

 

1) The Claim is allocated to the Multi-Track due to the likely complexity of the facts, law and evidence and the importance of the claim to persons who are not parties to the poceedings

2) The parties shall by Wednesday, 18th June 2008 consider whether the claim is capable of being resolved by Alternative Dispute Resolution and

a) if either party considers that the claim is unsuitable for Alternative Dispute Resolution, that party shall, not less than 28 days before the date fixed for the trial, serve on the other party a witness statement giving the reasons upon which that party relies in saying the claim is unsuitable;

b) a party served with such a statement may within fourteen days after recieving it serve on the other party a witness statement in resonse;

c) all witness statements so served shall be disclosed to the trial judge at, but not until, the conclusion of the trial;

d) at the conclusion of the trial, when deciding on the appropriate costs order to make, the trial judge shall take all such witness statements into account in considering whether such means of resolutionwere appropriate; and

e) a party who objected to Alternative Dispute Resolution but has not served such a witness statement may be presumed to have objected for no good reason.

 

3) Disclosure of documents shall be dealt with as follows:

a) Both parties shall give to each other standard disclosure by list to be served by 4pm on Wednesday, 21st May 2008

b) Any request for a copy, or inspection, of any document shall be complied with by 4pm on Wednesday, 4th June 2008.

 

4) Both Parties shall, by 4pm on Wednesday, 2nd July 2008, serve on each other the witness statementsof themselves and of all witnesses (other than expert witnesses)on whom they intend to rely.

 

5) No party may rely on or adduce the evidence of any witness whose statement has not been served in accordance with this order without further permission from the court.

 

6) Each party shall:

a) serve any request for clarification or further information based on any document disclosed or statement served by another party no later than seven days after disclosure or service and

b) reply to any such request served on it within seven days of service of the request.

 

7) Completed pre-trial check lists shall be sent to the court by 4pm on Wednesday, 30th July 2008.

 

8) The Claim shall therafter be listed for trial with a time estimate of one day.

 

9) Because this Order has been made by the Court without considering representations from the parties, the parties have the right to apply to have the order set aside, varied or stayed. A party wishing to make an application must send or deliver the application to the court (together with any appropriate fee) to arrive within seven days of service of this Order."

 

Thats the whole thing.

 

 

Borgbaiter

[steven4064]

Hi borgbaiter and welcome to CAG

 

I'm sorry no one else has been along yet - I am going to move your thread to mortgage companies - you might get more 'traffic' there.

 

I don't know the answers to everything in your post but I'll put in what I do know - see below

"On wednesday, 23rd April 2008

 

District Judge S.R.Mitchell sitting at Falklands House, 25 Southway, Colchester, Essex considered the papers in the case and

 

ordered that;

 

1) The Claim is allocated to the Multi-Track due to the likely complexity of the facts, law and evidence and the importance of the claim to persons who are not parties to the poceedings Multi track is (as I'm sure you know) the 'highest' level in the County Court system. It is where complicated cases or cases with high value go. There is no protection against costs as there is in the small claims track.

2) The parties shall by Wednesday, 18th June 2008 consider whether the claim is capable of being resolved by Alternative Dispute Resolution and

a) if either party considers that the claim is unsuitable for Alternative Dispute Resolution, that party shall, not less than 28 days before the date fixed for the trial, serve on the other party a witness statement giving the reasons upon which that party relies in saying the claim is unsuitable;

b) a party served with such a statement may within fourteen days after recieving it serve on the other party a witness statement in resonse;

c) all witness statements so served shall be disclosed to the trial judge at, but not until, the conclusion of the trial;

d) at the conclusion of the trial, when deciding on the appropriate costs order to make, the trial judge shall take all such witness statements into account in considering whether such means of resolutionwere appropriate; and

e) a party who objected to Alternative Dispute Resolution but has not served such a witness statement may be presumed to have objected for no good reason. The court would like this case settled out of court, possibly using some sort of arbitration. If you don't want this you have to give a good reason and provide a witness statement giving that reason and any background info.

 

3) Disclosure of documents shall be dealt with as follows:

a) Both parties shall give to each other standard disclosure by list to be served by 4pm on Wednesday, 21st May 2008 By this date, you have to provide the other side with a list of documents and other information you want from them in order to prepare your witness statement and court bundle

b) Any request for a copy, or inspection, of any document shall be complied with by 4pm on Wednesday, 4th June 2008. They will do the same and you must comply by this date

 

4) Both Parties shall, by 4pm on Wednesday, 2nd July 2008, serve on each other the witness statementsof themselves and of all witnesses (other than expert witnesses)on whom they intend to rely. From the information you obtain from that list you must prepare a witness statement and send it to court and the other side by this date. If you have any other witnesses they must also produce a witness statement also to be sent to the court and other side by this date. The other side must do the same.

 

5) No party may rely on or adduce the evidence of any witness whose statement has not been served in accordance with this order without further permission from the court. You cannot introduce any evidence after you have submitted your witness statements unless the court says you can

 

6) Each party shall:

a) serve any request for clarification or further information based on any document disclosed or statement served by another party no later than seven days after disclosure or service and If you have questions about the other side's witness statement(s) you must ask them within 7 days

b) reply to any such request served on it within seven days of service of the request. and reply to any questions you are asked within 7 days

 

7) Completed pre-trial check lists shall be sent to the court by 4pm on Wednesday, 30th July 2008. What it says on the tin - the pre-trial checklist is in the CPR CPR - Parts and Practice Directions Part 29

8) The Claim shall therafter be listed for trial with a time estimate of one day. The court will then give you a trial date and the case is expected to last one day

 

9) Because this Order has been made by the Court without considering representations from the parties, the parties have the right to apply to have the order set aside, varied or stayed. A party wishing to make an application must send or deliver the application to the court (together with any appropriate fee) to arrive within seven days of service of this Order." If you don't like any part of this order you can apply to have it set aside, varied or stayed (put on hold). You must do this within 7 days of receipt of the order

Hope that helps

[zootscoot]

How much is your claim and who are you claiming against?

 

Pm me if you don't want to reveal this info on the forum.

 

What do they put in their defence?

[Bona]

It seems to me that the Judge wants it settled hes not going to let the mortgage company muck him about and he expects you to do the same with regard to costs if they offer you arbitration or settlement and you dont agree and you do not win in excess of what they offer you will get a costs order against you They neeed to state in there staements if they believe they have a legal right to there costs if you win in my opinion do what he wants ie agree to arbitration if you dont you will find it tough

[borgbaiter]

hi

 

thanks for all the response it is appreciated.

 

the claim is against the chelsea building society. its value is just under 5k. 3k of which is cashback they took back as i was allegidly over 3 months in arrears. this is disputed but even if i didnt dispute it i see this as a penalty charge as being in arrears has no cost to the chelsea (the full debt and interest still being paid)

 

the chelseas defence used all the issues of its a fair fee and an estimate of their costs involved etc etc.

 

however i asked the court to make the chelsea declare their costs and the chelsea wrote to the court asking that they dont do this as they dont have any. it seems the court has taken pity on them and escilated the claim to scare me off?

 

im very worried about costs as the chelseas defense has already stated they need 2 expert and 2 none expert witnesses.

 

i would agree to mediation but i believe this is going to cost me another £1000 which i just dont have.

 

 

Borgbaiter

[Bona]

No I think this is just running its course in fact the order is in your favour they have said they are not prepared to disclose there costs the Judge has said if they dont ie witness statement he will not consider them trying to introduce them latter you have made your point the order is directed at them to make them come up with the goods right no 1 you need to decide what you would accept and ask them are they willing to make you an offer around that mark you have then complied with no 2 of the order

then sit tight and see witness statements do not need to be in yet so no cost to them yet

[JonCris]

Sorry to disagree but the Judge is trying to scare the claimant.

 

The Chelsea won't give a dam & don't forget win or lose the Chelsea may still be able to demand the claimant pay their costs.......it'll be in their T's & C's as it is in the case of most mortgage lenders 'Indemnity against legal costs'

 

I should make an application to have the track reduced to fast or at least protected against costs.......To have set it at multi track without protecting the litigant in person against costs is disgraceful

[steven4064]

Given that the claim is £5k this ought to be small claims. The judge is saying that it is too complex for that - why?

[mrsfoot]

THIS IS REGARDING MORTGAGE PENALTY CHARGES

 

First post on CAG so hope its in the right place, if not please let me know or move it .

 

hi all

 

ive been trying to reclaim penalty charges on a mortgage acount sice the middle of last year. started mcol in december. case was stayed for parties to negitiate. and now the court has sent me an order. this order is very complicated and i dont think im grasping all of its implications. any light people can shed will be gratefully recieved. especially with regard to what im expected to do in response to it.

 

 

"On wednesday, 23rd April 2008

 

District Judge S.R.Mitchell sitting at Falklands House, 25 Southway, Colchester, Essex considered the papers in the case and

 

ordered that;

 

1) The Claim is allocated to the Multi-Track due to the likely complexity of the facts, law and evidence and the importance of the claim to persons who are not parties to the poceedings Strange as the case is less than 5K. However it would seem the AQ held a strong argument for a longer hearing than is allowed in sml claims.

2) The parties shall by Wednesday, 18th June 2008 consider whether the claim is capable of being resolved by Alternative Dispute Resolution and

a) if either party considers that the claim is unsuitable for Alternative Dispute Resolution, that party shall, not less than 28 days before the date fixed for the trial, serve on the other party a witness statement giving the reasons upon which that party relies in saying the claim is unsuitable; If you dont believe the case can be resolved without a hearing then you must make a witness statement as to why you think that within 28 days.

b) a party served with such a statement may within fourteen days after recieving it serve on the other party a witness statement in resonse; If you get a witness statement from Chelsea then you can reply to this formally within 14 days stating your reasons why they are wong in not wanting ADR. If you state you do not want ADR then Chelsea can write to you within 14 days of recieing you witness (from 2a above) giving their reasons why you should.

c) all witness statements so served shall be disclosed to the trial judge at, but not until, the conclusion of the trial; All witness statements and responses must be sent to the Judge. If you send anything to Chelsea then send it to Judge as well.

d) at the conclusion of the trial, when deciding on the appropriate costs order to make, the trial judge shall take all such witness statements into account in considering whether such means of resolution were appropriate; If either want ADR and the other party disagrees then costs could be ordered against the disagreeing party at a higher figure than what is claimed. This is to stop court time being wasted and is a common order. and

e) a party who objected to Alternative Dispute Resolution but has not served such a witness statement may be presumed to have objected for no good reason. If you dont want ADR but do not state why then the Judge will reason that you have no clear reason to object and have wasted court / Judges time.

 

3) Disclosure of documents shall be dealt with as follows:

a) Both parties shall give to each other standard disclosure by list to be served by 4pm on Wednesday, 21st May 2008 There is a great list in templates of what to request. As this is multi track you can go for full disclosure, which means Chelsea will have to evidence how they arrived at such figures.

b) Any request for a copy, or inspection, of any document shall be complied with by 4pm on Wednesday, 4th June 2008. If you have been requested to demonstrate documents from the other side then they must be sent to Chelsea before this date. Do not do this late or it can be seen as non compliance! Same for them...they must send you all their docs that you request to examine before this date.

 

4) Both Parties shall, by 4pm on Wednesday, 2nd July 2008, serve on each other the witness statementsof themselves and of all witnesses (other than expert witnesses)on whom they intend to rely. Witness statements must be exchanged no later than this date. Again look in templates. If you fail to do this then you will not be allowed to rely on a witness statement at the hearing unles you have good reason for it not being disclosed on this date....same for the other pary.

 

5) No party may rely on or adduce the evidence of any witness whose statement has not been served in accordance with this order without further permission from the court. See 4

 

6) Each party shall:

a) serve any request for clarification or further information based on any document disclosed or statement served by another party no later than seven days after disclosure or service and

b) reply to any such request served on it within seven days of service of the request.

If you need clarification on any document / statement then you must request this no later than 7 days after it has been received by you. They then have 7 days to reply and vice versa.

7) Completed pre-trial check lists shall be sent to the court by 4pm on Wednesday, 30th July 2008.

 

8) The Claim shall therafter be listed for trial with a time estimate of one day.

 

9) Because this Order has been made by the Court without considering representations from the parties, the parties have the right to apply to have the order set aside, varied or stayed. A party wishing to make an application must send or deliver the application to the court (together with any appropriate fee) to arrive within seven days of service of this Order." If you disagree with anything in this order you have 7 days to respond to the court and ask for changes. This may mean a change of track. You could argue for a change of track following CPR 26.8. That can be found here PART 26 - CASE MANAGEMENT – PRELIMINARY STAGE

 

Thats the whole thing.

 

 

Borgbaiter

 

Hi Borgbaiter

 

I have written some comments in red above. I am by no means qualified however having gone through a similar case I have some experiance at the stage you are at.

 

I have some wonderful notes on a mortgage case and would be happy to email them over if needed.

 

I think the Judge has set a clear order here. IMHO he is trying to get this settled before the hearing and it would do you no harm to try and negotiate a settlement. Do this only in writing so if necessary this can be shown to the Judge to prove you have tried.

 

I would take the ADR opportunity, but it is your case and you must do whatever you feel is right.

 

Hope this helps

[steven4064]

Thank you for your additions to my interpretation mrsfoot, particularly the CPR 26.8 stuff.

 

borgbaiter, IMHO I think you ought to go for a variation and try and get track changed. You could write someting along these lines:

This is a straightforward case where I am requesting the return of charges paid to the defendant on the grounds that they are contract penalties and therefore unlawful at common law.

 

As the law relating to contractual penalties is long established, I believe that this is a straightforward case with a value of £5000 and that the outstanding issues are purely of fact. Accordingly, I respectfully request that this claim is allocated to the small claims track as this seems to me to be the most appropriate following CPR practice direction 26.8, and would estimate that the hearing of the claim should last no longer than one hour.

 

Further, I respectfully suggest suggests that special directions may be made as per the attached draft order. I believe the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

You should attach the draft direcions (from http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html#post90319) suitably modified. You must get this to court within 7 days

 

As a matter of some urgency can you

 

1) tell us who is suing whom (I have assumed in the above that you are suing them - I just want confirmation of that)

 

2) post the POC here so we can have a look at it (we may suggest some changes to what I suggested to write when we see it)

[JonCris]

Hello out there.......has anybody considered their 'Indemnity for Costs which will almost certainly be present in Chelsea's terms. Which means win of lose they get costs.......unless the track is small claims

[zootscoot]

You really do need to avoid multi track if at all possible. There is also the question of an indemnity clause. This may not actually cover legal costs involved in defending an action based on the unfairness of a contractual term.

 

Can you post the T &Cs of the mortgage contract. I am also quite interested in the term relating to their ability to recover the cash back in the event of arrears.

 

I would certainly recommend putting in an application on form N244 to have the case reallocated to the small claims track.

[zootscoot]

Some points you can use in making your application:

 

 

 

1. The claim involves a consumer dispute and should be allocated to the small claims court which is designed particularly for consumers.

 

2. You are a litigant in person and not familiar with the more complex procedures in the multi track.

3. it is advisable to have legal representation in the fast or multi track, whereas in the small claims track legal representation is discouraged. I can not afford legal representation and thus require a hearing in the small claims track so that my right to a fair hearing is not prejudiced

 

4. Under the Overriding Objectives of the Civil Procedure Rules there is an obligation on the judge to ensure the parties are placed on an equal footing. As the Defendant is a huge financial institution it would be unfair to place this in the multi - track as this would give the Defendant the advantage in being able to bear the risk of costs whereas I do not. The Defendant has ready access to legal advice and representation whereas I am a litigant in person

 

5. the Overriding Objectives of the Civil Procedure Rules requires the case to proceed speedily so that a just settlement may be obtained by the parties to this case. There is no complicated issue of law. The common law relating to contractual penalties is settled law since the late 1800s and has been reinforced as recently as the Unfair Terms in Consumer Contracts Regulations 1999 which itself is the result of a European directive.

 

6. The claim is below the 5K threshold. Ifiled the claim believing it would be dealt with in the small claims court and did not anticipate the risk of bearing the costs in the fast or multi - track. To allocate the claim outside the small claims track would be grossly unfair

7.Whilst the Claimant has repeatedly tried to contact the Defendant to resolve the issue, the Defendant has failed to respond to any communication, they have refused requests for a breakdown of their costs in order to satisfy the Claimant that their charges are lawful

[borgbaiter]

hi all

 

thanks for the comments and suggestions. im out at the moment but i will have a good read through them later and try and pull something together. i see there are some good reasons but im of the opinion its to make the case go away either by them paying up (unlikely at this stage) or me give up as to the uncertainty as to court costs. Does anyone know what Alternative Dispute resolution is and how it works. am i right in thinking it also has cost implications to me?

 

I am sueing the Chelsea for approx £500 charges and £3050 cashback. plus interest account goes back to mid 1999. they got my S.A.R - (Subject Access Request)'s wrong and seem to have simply made up some charges which they then sent me. this didnt include cashback so i knew there was something wrong. second SAR for everything they had on me was produced (still with omissions) after the 40 days so im claiming some charges now over 6 years old and statute barred for their failure to comply with the DP act.

 

 

Borgbaiter

[borgbaiter]

hi

 

This indemnity against legal expenses is very worrying. If i have it correct if i win or loose i have to pay for their very expensive legal team ? This has to be an unfair term surely? the copy of their "Chelsea Building Society Mortgage Conditions (1996)" is a poor photo copy with parts un readable.

 

the relevent part i presume is;

 

"13. Costs and Expenses

13.1 We shall be entitled to all expenses properly incurred (including costs of legal proceedings) on the basis of full indemnity and expenses will carry interest at the Current Rate from the date they are incurred.

13.2 All such expenses with interest will be payable by you on demand and until they are repaid, they will be secured by the Charge.

13.3 You agree not to require our legal costs in connection with any proceedings initiated against you by us or against us by you to be submitted for a determination by a Court."

 

seems to cover all courts so why would it not count in small claims court?

 

ive just checked their defence and it mentions;

 

"Clause 13 Costs and Expenses

13.1 We [the defendant] shall be entitled to all expenses properly incurred... on the basis of full indemnity and expenses will carry interest at the Current Rate from the date they are incurred.

13.2 All such expenses with interest will be repayable by you on demand..."

 

i find it interesting what they left out of their defence version? i didnt realise the full implications of this as i was veiwing it with regard to penalty charges not the wider issue.

 

some posts above say it doesnt apply to small claims?

 

 

Borgbaiter

[borgbaiter]

POC

 

i origanally did this via mcol using a template on moneysavingsexpert. once it went to colchester i submitted a revised POC as the space constraints were removed. Revised claim below;

 

 

 

CLAIM NUMBER XXX XXXXX

IN THE COLCHESTER COUNTY COURT

 

BETWEEN

 

xxxxxxxxxx CLAIMANT

 

And

 

Chelsea Building Society DEFENDANT

 

PARTICULARS OF CLAIM

1. The Claimant had a Mortgage Account Number XXXXXXXX with the Defendant which was opened on or around July 1999.
   

 

1. During the period in which the Account was operated the Defendant debited numerous charges to the Account in respect of breaches of contract on the part of the Claimant, between 08/06/2001 and 23/06/2003. 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.
   

1. Under Common Law, the charges are an unlawful extravagant penalty not liquidated and ascertained Damages. The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost 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. Additionally Default charges are unfair penalties under the Unfair Terms in Consumer Contracts Regulations 1999 The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the Unfair Contract Terms in Consumer Contracts Regulations 1999. para. 8 and sch. 2(1)(e), the Unfair Contract Terms Act 1977 s.4 and the common law. Further or alternatively, they are unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15
   

 

1. The defendant failed in their legal obligations under the data protection act 1998. They failed to produce correct figures in relation to my initial Data Request under this act. They also did not provide the data requested within the 40 days they must provide it under the Data protection act 1998. For this reason I wish to claim any of my charges that are now Statute barred due to being more than 6 years old as a loss due to the defendants breach of their obligations under the act.
   

 

1. The defendant also charged a penalty called “Cashback” in February 2003, This is disputed both as a penalty charge for breach of contract and being reclaimed against the actual contract terms.
   

 

1. The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 8/6/2001 to 18/12/2007 of ￡1,477.26 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of 0.0219%. These are as calculated on the attached schedule of Charges.
   

 

1. The Claimant asks the court to enter judgment in their favour for ￡4,975.46. Plus Court costs ￡100.00.
   

 

1. Figures take into Account part payment by the Defendant on 13/08/2007 of ￡172.00.
   

 

1. The Defendant has a full schedule of charges, a further copy is attached.
   

 

1. I believe that the contents of these particulars of claim are true.
   

 

 

Signed:

 

 

 

 

 

 

Date;

[JonCris]

Because such a clause if allowed to succeed in small claims would defeat the overriding principal of the court......& that is your right to seek an adjudication without fear of substantial costs

[steven4064]

This indemnity against legal expenses is very worrying. If i have it correct if i win or loose i have to pay for their very expensive legal team ?

Which is why we think your priority is to try and get this moved to small claims. Make an application (for N244) using the stuff I wrote but more particularly using what zoot wrote to ask the court to re-allocate to SCT. That is where a £5k claim proprly belongs and you are protected from costs as JC says. You need to make a strong point about it not being complicated and how it affects you as a litigant in person.

[zootscoot]

There is no guarantee that the indemnity clause will not be upheld in the small claims court. It may well be worth amending your claim to include a determination on the issue of fairness of the indemnity clause. I have to say that it is risky as far as costs go.

 

I think maybe your best bet to be on the safe side would be to make an offer saying you are willing to accept a lower amount and see if they are agreeable to that. Make it sound as though you are trying to co-operate with the courts direction to seek to resolve the dispute.

 

I'm sure there are some letters on here somewhere from when the ERC claims failed. I'll see if I can find one.

[borgbaiter]

REGARDING CASH BACK

 

I cant find mention of cashback in the mortgage conditions. It is however on the Details of Mortgage, under special conditions.

 

"Following completion of the mortgage and within 3 to 4 weeks therof subject to reciept of your first mortgage payment you will be paid by way of cashback (up to a maximum of £12,500) 5% of the amount specified to be the advance. This payment is conditional upon no payment due under the mortgage falling more than 3 months in arrears or upon no early repayments of capital being made within 5 years of completion. If the society so requires by reason of default in your payments or if you or your successors in title make a repayment of all of the capital secured by the mortgage within 5 years of completion, the cashback must be refunded to the society without interest.

 

if within 5 years of completion of the mortgage, you wish to make an early repayment of capital of the mortgage, we will require repayment of such proportion of such of the cashback as the amount repaid represents to the original loan amount. (Ref.142)"

 

 

Borgbaiter

[zootscoot]

Dear Sir/Madam,

 

I am writing in accordance with my duty under the overriding objectives of the Civil Procedure Rules to continue to seek settlement of the case without the need to invoke the time of the courts and in compliance with Judge's Directions in which we are to seek alternative methods of resolving this dispute.

In recognition of the fact that you will incur some costs in relation to my contractual breaches and in the interest of acting fair and reasonably I am thus now in a position to offer your client the chance to settle at £xxxx.

I sincerely hope that this matter can be resolved expeditiously and amicably. I would be grateful if you could reply letting me know your decision within 14 days of receipt of this letter.

 

Yours

[zootscoot]

This payment is conditionalupon no payment due under the mortgage falling more than 3 months in arrears or upon no early repayments of capital being made within 5 years of completion.

 

I don't think this is a clearcut payment on breach of contract more of a condition precedent. Also the fact that its not triggered on the first breach but only after the third breach may well affect a finding of whether it is capable of being a penalty. I still think your best solution would be to try to withdraw with as little damage as possible. What ever you do do not withdraw without first trying to get a settlement. If they are not forth coming with this then do try to at least get out with a no costs agreement. Do not simply withdraw your claim from the courts without this otherwise you will be liable for their legal costs to date.

[borgbaiter]

There is no guarantee that the indemnity clause will not be upheld in the small claims court. It may well be worth amending your claim to include a determination on the issue of fairness of the indemnity clause. I have to say that it is risky as far as costs go.

 

I think maybe your best bet to be on the safe side would be to make an offer saying you are willing to accept a lower amount and see if they are agreeable to that. Make it sound as though you are trying to co-operate with the courts direction to seek to resolve the dispute.

 

I'm sure there are some letters on here somewhere from when the ERC claims failed. I'll see if I can find one.

 

i made an offer to settle at £3k and they rejected it they seem to want to see me in court. simply replyed stating i would have to pay their costs as it will be in the fast-track system. this was before it was moved to multi-track. they asked for fast track in there defence and the AQ.

 

Is it worth pointing out this indemnity to the judge? would it influence him one way or the other?

 

Borgbaiter

[JonCris]

There is no guarantee that the indemnity clause will not be upheld in the small claims court. It may well be worth amending your claim to include a determination on the issue of fairness of the indemnity clause. I have to say that it is risky as far as costs go.

 

I think maybe your best bet to be on the safe side would be to make an offer saying you are willing to accept a lower amount and see if they are agreeable to that. Make it sound as though you are trying to co-operate with the courts direction to seek to resolve the dispute.

 

I'm sure there are some letters on here somewhere from when the ERC claims failed. I'll see if I can find one.

 

I agree Zoot..........I was working my way up to it.....didn't want to dampen the OP's enthusiasm so early on.............As you say the OP should agree to mediation & if unsuccessful withdraw whilst asking that each be responsible for their own costs

[borgbaiter]

hi

 

not good news.

 

what about the fact they took the cashback back (as it were) while reporting to credit reference agencies i was only 2 months in arrears? is that not grounds for any action?

 

i also have a screen shot in the SAR that shows the balance when it was recovered as less than three months in arrears.

 

am i right in thinking over three months is actually 4 months?

 

cluctching at straws here guys

 

 

Borgbaiter