Mortgage case being put to multi-track???

[borgbaiter]

hi all

 

this is what i intend to send tomorrow

 

 

Application to have Order Varied.

 

 

My apologies for the somewhat disorganised structure of this application. Unfortunately the order was dated 23rd but post marked the 28th so I am doing my best to comply with the 7 days allowed for the order to be varied or set aside. I am a litigant in person and have no legal guidance to aid me in this claim. I make this statement with the utmost respect.

 

 

I believe the intention of this order is for myself and the Chelsea to conclude this matter without wasting any further court time, and I appreciate that. I am not looking forward to appearing in court as it is not my normal environment. The order has left me, however, with various problems most of which unfortunately are financial. I see the sense of arbitration but I believe this will involve cost to myself in the order of £1,000. That represents 20% of my claim as it stands. This is money I feel I was unlawfully deprived of in the first instance. This would appear to be disproportionate.

 

 

The move of the case from the small claims to multi-track also adds a large element of unquantifiable risk to myself. I believe the solicitors for the Chelsea are legally related to the Chelsea so their “costs” are more in the order of overheads than true costs. Once again this seems to be tipping the balance in their favour.

 

 

By its very nature the case is a small claim by value and despite the defences' assertions to the contrary it is simple in nature.

 

 

To outline the dispute as simply as possible

 

 

I claim their charges and CashBack are penalties for my breach of our contract under common law. Should this fail I claim also they are unfair contract terms under the Unfair contract terms and conditions regulations. As they are disproportionate and not individually negotiated by equal parties. It should therefore be fair and reasonable for instance, related once again to their costs.

 

 

Additionally and of no importance to other cases I believe they were wrong in taking the CashBack at the time they did even given both the above arguments fail. In that it was two months in arrears not over three months as the contract stated.

 

 

I realise there is the matter of the data protection act in relation to charges beyond 6 years. However to expedite things and reduce any perceived complication I am perfectly willing to drop this item from my claim.

 

 

If the actual costs of the case could be agreed before hand I may be able to ascertain if I can meet a potential loss. As it stands now I could potentially face bankruptcy due to my attempt to seek a legal redress to my claim.

 

 

As the law relating to contractual penalties is long established, I believe that this is a straightforward case with a value of under £5000 including interest 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.

 

 

I see no reason for the case to last more than an hour as both parties have made their positions very clear and it is for a judge to decide who is right and who is wrong.

 

 

If this case is to set some sort of precedent for other cases I feel also that I am not the right person to bring this case as being a litigant in person and not legally trained it is by no means in the public interest for this to happen. This is more properly a job for a public organisation such as the Office Of Fair Trading.

 

 

It has become apparent to me that under the contract with Chelsea the following clauses are of importance in this case.

 

 

 

 

Chelsea~Building Society Mortgage Conditions (1996)

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."

These clauses would seem to deny me of access to any legal recourse. 13.3 would seem to forbid me from even trying to enter any legal dispute.

 

 

In that I am responsible for their costs whether my case is proven or not. This is contrary to the over riding objective in my view. I would like this issue to be addressed in my claim as it seems to be an unfair contract term to my mind.

 

 

I seem to be in a lose lose situation as if I win they get there costs paid and if I lose they get there costs paid. There is clearly no imperative for them to negotiate in good faith as the longer this case takes the higher the costs to myself will become. Given their description of what they intend as a defence it is clear such costs will far exceed the total value of my claim. I feel my rights to a fair and just legal system has been negated.

 

 

They have already said they cannot comply with any request to prove their costs in a letter to the court. This is in complete contradiction to their defence which states the Chelsea calculated the cost of my breaches of contract. This surely is grounds to strike out their defence.

 

 

I appreciate much of what I have stated may not be in legal language but I am a litigant in person with little legal knowledge so I am basing what I say primarily on my view of right or wrong and my trust in the justice system that it is based on the same values.

 

 

I have tried to negotiate with the defendants in good faith but they have not responded in kind. I suspect they are relying on the fact that I am eventually to pay all their costs. To date I have had no indication of any costs they expect me to pay so is this some sort of ambush waiting for after the case when I think I have won and abracadabra I lost.

 

 

To this date they have refused me documents that I should have received as part of my Data Protection request. I'm of the opinion they believe they are above the law.

 

 

I am thoroughly disillusioned with this whole process to be honest.

 

 

Any help the court can give would be more than welcome. It seems to me that I have been denied even basic rights by a vast organisation who continues to abuse this power over normal people looking for a roof over their heads.

 

 

By way of direction I would ask for the following;

 

 

Draft Order for Direction

 

 

 

 

In the Colchester County Court

 

 

Claim Number XXXXXXXXXX

 

 

Between

 

 

XXXXXXXXX - Claimant

 

 

and

 

 

The Chelsea Building Society - Defendant

 

1) The claim is allocated to the small Claims-Track.


2) The defendant shall within 14 days. Provide the calculations leading to the charges specified and charged as these charges are defended on the basis they are genuine pre-estimates of costs.

 

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

 

 

 

 

Yours faithfully

XXXXXXXXXX

[Bona]

With regard to legal expenses they have to be reasonable regardless what is in the contract We are at the moment trying to challange this but it will take time all I can say is that try to get it changed to small claims if you look in the Court guidence rules it states that parties should be treated as equal there is case law in scotland where if you try to settle and the other side wont they do not get there costs Im sorry I cant be more help it is just so unfair

[zootscoot]

If they are flatly refusing to negotiate the judge has made it clear in his directions that costs will be awarded against them unless they can justify their refusal to settle. So I don't think that it is a forgone concusion that they will refuse point blank to settle.

 

Negotiation is a form of Alternative Dispute Resolution so you should keep making offers and keep copies of letters to demonstrate your willingness to settle and if they continue to refuse they do risk paying their own legal costs which can be a good bargaining tool in getting a settlement from them.

 

You need to make your application to amend your POC on form N244. There is a fee payable which is greater unless you obtain the consent of the defendant. So you will need to write to the Defendant and ask for their consent before making the application. There is likely to be a hearing to decide this issue.

[steven4064]

There is a fee payable which is greater unless you obtain the consent of the defendant. So you will need to write to the Defendant and ask for their consent before making the application. There is likely to be a hearing to decide this issue.

The trouble is borgbaiter only has 7 days. Are the fees £40 if they agree, £75 if not and it has to go to a hearing? (fees)

[zootscoot]

Form N244 is here

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/41901-form-n244-application-notice.html

[zootscoot]

The trouble is borgbaiter only has 7 days. Are the fees £40 if they agree, £75 if not and it has to go to a hearing? (fees)

 

 

Yes those are the correct fees

[zootscoot]

Actually because of the indemnity clause it won't make a great deal of difference if the case is multi track. There is therefore no reason to make an application to ammend the order. It is still worth making an application to amend the claim to add the part about the cash back being taken at the wrong time and the indemnity clause. There is not a 7 day limit on making an application for amending the claim.

[borgbaiter]

The trouble is borgbaiter only has 7 days. Are the fees £40 if they agree, £75 if not and it has to go to a hearing? (fees)

 

 

 

technically im already over the 7 days they gave me as it took the court 5 days to post it. im just hoping common sense works in these cases at some level.

 

so i have to pay another £75. this is getting to be like the charges themselves a money making scheme.

 

Borgbaiter

[borgbaiter]

hi

 

sending letter to court this morning. havnt enclosed a cheque coz at the end of the day it doesnt seem worthwhile. will send a final letter to the chelsea and then wait for them to bill me for all their work. at this point i spose ill slip quietly into bankruptcy. worst mortgage i ever had and the perfect end to it.

 

Borgbaiter

 

 

ps thank you all for the advice it is still appreciated just wish id started here before i got too far into this process.

[Bona]

Hang on what final letter dont give up get them to make an offer

[borgbaiter]

hi bona

 

not quite suicidal yet just sent a letter saying ill settle for £3k in full and final settlement. if their going to get me to pay there costs i best try and get something off them first eh.

 

if i ignore the whole indemnity issue for now can i not if and when they want their money dispute this also as an unfair contact term under the UTCCR?

 

i sure think its unfair

 

 

Borgbaiter

[mrsfoot]

Borg

 

If they accept your offer of £3k in F&F settlement then this will mean there will be no costs to either side.

 

I know how you feel about getting out of the situation....have you sent the letter yet? It maight be a good idea if you posted a copy of the letter sent on here so we can see what you have asked and give you support.

 

Please dont feel like your alone in this matter. I know none of us are with you but we are always here if you need to yell / shout / moan. Its not just paperwork suport you will get from here...we all have been through times like this and can easily be a ear to listen.....dont forget that!

 

Mrs foot

[borgbaiter]

hi mrsfoot

 

i realise im not alone here. very refreshing to have some feedback .

 

was a real shock yesterday about the indemnity thing but what doesnt kill me only makes me stronger.

 

ive sent it off but its the same as one i was kindly offered ealrier in this thread, with a minor tweak.

 

 

" In response to the courts order dated 23rd April, 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 accept £3,000, in full and final settlement of our dispute.

 

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 faithfully

 

 

 

XXXXXXXXX

 

 

copy to; Colchester County Court"

 

 

Borgbaiter

[zootscoot]

If they haven't mentioned costs in their defence they may not claim them from you.

 

I've not come across any claims involving the Chelsea before so I'm not aware of what tactics they may take.

 

Should they claim their costs you can then defend on the grounds of an unfair term. There is something in the UTCCRs which covers this.

[zootscoot]

From the UTCCRs 1999:

 

Sch 2 (1)(q) excluding or hindering the consumer's right to take legal action or exercise any other legal remedy

 

I would imagine if an indemnity clause was used to prevent a consumer from challenging the fairness of the terms of the contract it would be classed as hindering the consumer's right to take legal action.

[borgbaiter]

hi zootscoot

 

thanks for that, ive put a note in my file. their main tactic has been to keep threatening to take it to fast track and then they will get awarded costs, along with saying they need 2 expert withnesses and may need other withnesses. all in without prejudice letters.

 

 

 

Borgbaiter

[Nightmare4banks]

Hi all!

 

borgbaiter,I have been reading through this thread with interest and have a suggestion which should possibly help you:

 

1.As this country has signed the European Convention of Human Rights or more commonly known as ECHR, under its various articles/protocols you have an absolute right to have a fair hearing and to be treated on an equal footing with the other party.

 

2.The indemnity clauses in the mortgage contracts - after all it is not only your mortgage company's contract go against the spirit of natural justice in a free society in the event where the consumer has lost out.However,if a mortgage payer stops paying this is a different story all together and the indemnity clause should be used in favour of the lender that wants to gain possession of the property off of a person that cannot afford to keep up the repayments at all i.e. a no hoper.

 

 

3.I have used this argument more than once in order to make sure that there is no obstruction from the mortgage company and the judge treats me on equal terms - here I am talking about the costs issues/tracks etc and not the actual arguments in any particular dispute to see to win because neither side knows what the judge will decide and in whose favour.From personal experience the judges have been impartial as they should be i.e. imposed orders on both the mortgage company and me.

 

4.You could also argue that if you do not have a fair hearing you would be deprived of your money which again is in breach of the ECHR Articles/Protocols and a duty of the courts to rectify.

 

At the end of the day,you are not asking for favours.These are your rights as

a citizen - so for God's Sake use them!

 

I hope you find this information useful and don't give up now!

[zootscoot]

hi zootscoot

 

thanks for that, ive put a note in my file. their main tactic has been to keep threatening to take it to fast track and then they will get awarded costs, along with saying they need 2 expert withnesses and may need other withnesses. all in without prejudice letters.

 

 

 

Borgbaiter

 

 

If they have been threatening to fast track in order to get costs then it seems they will not relying on the indemnity clause. So its best to try to get it transfered to the small claims court.

 

All the best

 

Zoot

[JonCris]

If a party does not make a genuine attempt at settlement after receiving an offer then 'without prejudice' letters may be disclosed to the court with it's permission

[borgbaiter]

hi all

 

thanks for the above posts. re thier without predjudice letters theres always a line that offers to pay my court costs in full and final settlement, im assuming this is enough to cover them against me showing it?

 

however havnt had any since 18th March.

 

following AQ's the court ordered the case stayed a month for negotiations so it was probably the minimum they could do to comply with that as they had asked for the months delay in their AQ.

 

ill keep the human rights in mind but i think the UTCCRs 1999: Sch 2 (1)(q) may be my best approach should they mention thier costs, if they dont i sure wont

 

 

Borgbaiter

[borgbaiter]

hi all

 

been looking on the Financial Ombudsman site trying to find out if its too late to take the complaint to them, i suspect it is.

 

found a page on unfair contract terms tho which is interesting.

 

banking contracts

 

the complaints upheld i found suprising, especially the ones on early repayment charges and onerous terms were there was no face to face pointing out of charges.

 

My remortgage was all done by phone and letter (you must have seen the chelseas tv adds, i have it on DVD if you want it ;-) and i used thier solicitors (stupid i realise now). i used to be far to trusting in banks good faith and legality.

 

 

Borgbaiter

[borgbaiter]

hi

 

found this on the FOS site now;

"is bringing a dispute to the Financial Ombudsman Service like going to court?

 

The ombudsman service is not as formal as the courts. We generally decide cases based on the information that you and the business you are complaining about give us, in writing and over the phone. We settle almost all disputes without needing to have face-to-face meetings (or “hearings”) with the two sides.

Our service may not suit you if your dispute involves more than £100,000. You may also prefer to take your dispute to court if you want to inspect all the papers personally, ask your own questions, or have a hearing as a matter of course.

We will not usually handle a case which has already been considered by a court (or where court action is due to take place). "

 

so it seems they may still take it on. have emailed them to see if they will

 

 

Borgbaiter

[borgbaiter]

hi

 

grrrr seems FOS can only take a complaint for upto 6 months from chelseas final refusal of my claim. This was suposedly sent 5/9/07, although that never arrived, and i finally got a copy of it around 23/9/07. so im well over 6 months now.

 

ho hum

 

 

 

Borgbaiter

[JonCris]

hi all

 

thanks for the above posts. re thier without predjudice letters theres always a line that offers to pay my court costs in full and final settlement, im assuming this is enough to cover them against me showing it?

 

however havnt had any since 18th March.

 

following AQ's the court ordered the case stayed a month for negotiations so it was probably the minimum they could do to comply with that as they had asked for the months delay in their AQ.

 

ill keep the human rights in mind but i think the UTCCRs 1999: Sch 2 (1)(q) may be my best approach should they mention thier costs, if they dont i sure wont

 

 

Borgbaiter

 

How old are their offers. Did they make it clear there was a deadline (usually 21 days) for your acceptance

 

The HRA does not apply to private companies is does to the courts however

[borgbaiter]

hi all

 

ive worked out im not very good at final letters so wrote another one. could end up accused of harrasement if im not careful :-S. copy below for comments. not sending it till tommorrow.

 

 

" Further to my letter of the 1st May and furthering the courts wishes as expressed in their order dated 23rd April. I have made inquiries to both the Financial Ombudsman Service and the National Mediation Helpline. I am awaiting their responses but should you have further suggestions of alternative dispute resolution services we can contact to help us resolve this matter without involving further court time please let me know and I would be pleased to consider them. I feel I have moved a long way beyond reasonable in my offer of settlement and I am confident any resolution service would agree.

 

 

I look forward to your earliest response to this matter. I realise this is one of many cases you deal with but to me it is very important. I feel I have done everything I can do to expedite this matter. My previous offer of settlement is still available should your client wish to settle.

 

 

 

 

 

 

 

 

Yours faithfully

 

 

 

 

 

 

 

 

XXXXXXXXXXXX

 

 

copy to; Colchester County Court"

Borgbaiter