Maroonfox5 V Mortgage Express*Lost in court*

[maroonfox5]

Just the ERC no penalty fees applied only had the mortgage just under a year as we sold the house and they wouldn't let us port it.

[nathal]

ME should have let u port it after 6months as long as payments had been maintained

[maroonfox5]

No .......we had to take a mortgage with them because our buyer pulled out at the last minute and we would have lost the house we are now living in.

 

So in effect we bought it off ourselves and used the spare cash (sort of bridge) but we took out a buy to let as we were going to rent it instead.

 

The tenant bought it off us and ME said that the BTL mortgage you can't port but if we had taken a residential one we could have.

 

Hardly fair?

[maroonfox5]

Quick update folks.

 

ME have got Cobbetts on the case now. Defence and predictable counterclaim received 16th Oct 06.Counterclaim is holding me responsible for all their costs to date and in the future as they have quoted some clause in the terms we signed which held us liable for any costs they incur due to our making.Surely that only applies if we are the mortgagee (we dont have one now ,so how can they charge us?)

 

We breached the contract and paid them all their money back ,Didn't we?

 

Allocation questionaire time me thinks.

 

Happy Days

 

MF5

[zootscoot]

Hi MF5

 

As the mortgage contract is discharged they can not rely on a term contained in the contract. You might want to have a look at the following thread for further ideas on a defence to their counter claim.

 

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/32915-these-guys-don-t.html

 

All the best

 

Zoot

[maroonfox5]

Thanks for the reply Zoot .I've had s a look at the other thread (great defence to counterclaim by donelly)

 

Going to use some of it on mine if needed.

 

I'm just a little unsure if I need to counterclaim as no fee paid or official counterclaim received from the court as of yet.

 

Regards

 

MF5

[zootscoot]

Interesting, it looks like it may well just be pure intimidation tactics and they are not serious about the counter claim. It might be worth submitting a defence to the court in any event just to alert the court to their sly tactics.

 

If nothing else it could get things moving for you. Also be worth submitting a complaint to the Law Society naming and shaming the solicitor responsible.

 

Another thread you might want to keep an eye on:

 

http://www.consumeractiongroup.co.uk/forum/alliance-leicester/38912-advice-mod-please.html

 

All the best

 

Zoot

[zootscoot]

Another one for you to check out. Feel free to steal any relevant bits

 

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/27030-harsh-letter-recieved-form.html

[maroonfox5]

Just a quick update on events with ME

 

AQ due in by Friday .I've checked with the court and they have confirmed that Cobbetts have just paid the counterclaim fee on the last date before strike out of CClaim .......Typical!

 

I'm just in the process of the defence to counterclaim and there are a few paragraphs that I'm unsure how to respond.

 

I'll put them on here if anyone can help

 

Cheers

MF5

 

7. At the time the claimants completed their application form,the defendant offereda number of other mortgage products which were,in accordance with common practice,advertised in their branches and on their web site and explained in mortgage leaflets.The level of the ERC's on those products varied depending on the element of risk of loss for the defendent if there was an early redemption and some products carried no ERC at all. These products inevitably carried a higher and/or variable interest rate/or did not offer special concessions such as free valuations or cash back.

 

8.The mortgage deal the claimants sought carried an ERC because it offered a significantly better deal than the standard variable rate mortgage,namely a discounted rate linked to the bank base rate ,and therefore carried a significant risk of loss for the lender if the borrower decided to redeem within three years of completion.

 

10.It is the defendants case that the ERC was the price payable under the contract by the claimants for exercising their contractual right to redeem the mortgage at the time they chose to redeem and was thus neither a penalty for breach of contract as alleged nor a liquidated damages clause intended to compensate the defendant for breach of the contract .Redemption of the mortgage by the claimant was not a breach of contract ,but was expressly permitted under the terms of the offer and the mortgage conditions applicable to the mortgage.

 

12.with the benefit of legal advice ,the claimants chose to apply for a mortgage that carried the benefit of a discounted rate pegged to the base rate but which had the disadvantage of an ERC.It was quite open to the claimants to choose a mortgage with a less favourable rate but also without an ERC,or with a lower ERC,whether offered by the defendant or by another lender.

 

13.It is denied that the charges levied are invalid under section 4 of the unfair Contract Terms Act 1977.Without prejudice to the generality of that denial,section 4 provides that a person dealing as a consumer cannot by reference to any contact term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract ,except in so far as the contract term satisfies the requirements of reasonableness .The charges applied here are the price for exercising a right under the contract ,not a payment in respect of negligence or breach of contract and not as an indemnity to the Defendant in respect of a liability incurred by the Defendant for negligance or breach of contract.The section does not apply.

 

What a load of tosh!

 

Can't say that though as a defence !

 

Any help appreciated

 

ZOOT are you there?

[maroonfox5]

Just found another one to add

 

15. The claimants were contractually liable to pay the ERC on redemption of the mortgage account in accordance with the terms and conditions of the mortgage.The ERC was part of the contractual consideration for obtaining a more favourable rate of interest than could have been offered had there been ne ERC terms.Further,the Defendant avers that the Claimants had ,or should have had ,the benefit of advice on the contractual terms of the mortgage from '(my solicitors)'and understood those terms prior to accepting them.

 

Thanks....

 

MF5

[gizmo111]

So on one line they are saying it was your right and then they are saying that you broke a T&C.

 

I am a few weeks behind you - took claim to court last Tuesday so it will be issued tomorrow and demed served 5/11 - so I expect I will be getting a defence from Cobbetts as well.

[maroonfox5]

Yep gizmo

 

Seems like the 'Bun and the ha'penny' to me LOL

 

Good luck with yours.

 

MF

[zootscoot]

Hi MF5,

 

Did they apply for a strike out (on the grounds that the case has no prospect of success) in addition to their counter claim for costs? If not you do not need to address the points in their defence at this stage simply defend the issue of costs. If they did apply for a strike you would then need to defend the strike out by addressing the matters in their defence.

 

All the best Zoot

[maroonfox5]

Hi Zoot

 

No mention of a strike out from Cobbetts just the fee has been paid with the CC and I need to defend it with my AQ.

 

Which bit do I defend exactly?

I've used some of your defence on the other thread and adapted bits.

 

Cheers MF

[maroonfox5]

Zoot

 

Think I've found the bit you mean.

 

Defence to the defendant's counterclaim for costs section on Kensington harsh letter thread?

 

Please confirm.............tomorrow will do I'm knackered now and off to bed.

 

cheers

 

MF

[MortgageMan]

Cobberts are quite skillfull at taking you to the brink before doing a deal, watch them because if you slip up or give them the chance they will have you

I have had dealings with them Good luck

The Mortgage Man

[zootscoot]

Yes thats right. Its this bit you need, obviously change the paragraph numbers to correspond with those contained in their defence. If it is a small claim ie under 5K leave out para 6 & 7 :

 

 

In the Northampton County court

 

 

MF5

Claimant

 

v

 

 

Mortgage Express

Defendant

 

 

 

Defence to the defendant’s counterclaim for costs

• 1. Further to paragraph 15 -17 of the defendant’s defence it is submitted by the claimant that it was not in the contemplation of the parties nor was it anticipated that such a clause could be relied upon by the defendant to require the claimant to indemnify the defendant in proceedings brought by the claimant to recover sums unlawfully taken by the defendant.
     
  2. Furthermore as the contract was discharged on XX/xX/XXXX it is no longer open to the defendant to rely on a term within the mortgage contract allowing for recovery of legal costs.
     
  3. Without prejudice to the above paragraph, it is further submitted that clause xxx of the contract which the defendant seeks to rely on to recover their legal charges is an unfair term under s.4 of the Unfair Contracts Terms Act 1977. It is respectfully submitted by the claimant that such a term should be regarded as unreasonable under s.11 of the said Act, as even if the claimant were to succeed in these proceedings, the term would effectively deprive the claimant of a remedy and indeed could leave the claimant open to pay further costs.
     
  4. The claimant respectfully asks the court to strike out the defendant’s counterclaim as it represents an abuse of the court process in that it is intimidatory to the claimant, aimed at pressuring the claimant into withdrawing her claim and is in direct conflict with the Civil Procedure Rules.
     
  5. Under the overriding Objectives of the Civil Procedure Rules there is an obligation to deal with cases justly and to ensure that the parties are on an equal footing. To allow the defendant’s counterclaim for costs would put the defendant at a substantial disadvantage to the claimant in that the claimant has no reciprocal right to claim costs under the contract and is thus unable to obtain legal advice and representation for her claim. Also as a litigant in person the claimant is already at a substantial disadvantage as the defendant is a large financial institution with ready access to legal advice and the ability to bear the burden of such costs. The claimant firmly believes in the justice of her claim and feels she has no option but to proceed. The claimant and her family would be caused severe financial hardship should the court allow the defendant’s counter claim.
     
  6. The claimant accepts that it is within the courts jurisdiction to award costs against her, however, the defendant’s counterclaim seeks to usurp the judge’s power on the order of costs.
     
  7. In view of the defendant’s conduct thus far in the proceedings and particularly for the reasons given in paragraphs 15-19 above it is respectfully requested that the court makes an order that no costs be awarded against the claimant at all in these proceedings.

STATEMENT OF TRUTH

 

 

I believe the facts stated within this defence to be true and comprising of 1 pages.

 

 

Dated: xx/xx/2006

 

Signed:MF5

 

[maroonfox5]

Many thanks for that Zoot .

 

I really appreciate your help on this as although I generally understand the points in law actually getting them across as well as you do would have taken me weeks!.

 

I've adapted the text to fit in with our claim(me and Mrs MF5)

 

But I did not leave out 6 and 7.

 

Our claim is for just under the 5K figure but with the interest it was over the 5K.

I realise that interest is not included as value to the claim but the court sent us AQ 150 istead of 149.I thought it would be wise to leave them in even though we are in the small claims track and not the fast track.Do you think that this is an oversight by the court ?.

 

By the way I noticed a possible error in para 5

 

"To allow the defendants counterclaim for costs would put the defendant at a substantial disadvantage to the claimant in that the claimant has no reciprocal right to claim costs under the contract............"

 

 

Should these two be the other way round?

 

Not teaching you to suck eggs Zoot .Please correct me if I'm wrong on this one.

 

Cheers

 

MF5

 

PS hope I'm not because I sent it recorded 1st class today "GULP"

[maroonfox5]

Mortgage Man thanks for the advice on cobbetts.

 

I did give them an extra 7 days to submit their defence though.

 

Maybe I should have entered judgement in default LOL.

 

I just thought that they would only appeal and get it overturned and that would delay matters further.

 

(Looks good in court)

 

Regards

 

MF5

[zootscoot]

"To allow the defendants counterclaim for costs would put the defendant at a substantial disadvantage to the claimant in that the claimant has no reciprocal right to claim costs under the contract............"

 

 

Should these two be the other way round?

 

 

You're absolutely right and if you were really vigilante you'd have seen I had already corrected it! lol

 

I had corrected it on the one I e-mailed Jamorgan as well if you were worried.

 

If its on the borderline or close to the 5K they may allocate it to the fast track. In fact I've seen cases of 3K go to fast track. You might also want to include something on the lines of:

 

As the claim is under the 5K limit it was the claimant's understanding in submitting the claim that they would not be liable to pay the defendant's legal costs in accordance with CPR 27.14. Thus to allow the defendant's counter claim would be grossly unfair.

 

In the event that the claim is allocated to the fast-track it is respectfully requested that the court does so on the basis that the claimant should not be ordered to pay the defendant's legal costs as the claim is under the 5K limit and thus the claimant submitted the claim in the belief that that they would not be exposed to such liability in accordance with CPR 27.14.

 

Hope this helps

 

Zoot

[maroonfox5]

Thanks for that Zoot

 

I new you wouldn't let me down.

 

I thought i was going puddled though,when I read paragraph 1 ........It took me about 10 times of reading to get it in my head LOL.

 

Thaks again you're a star.

 

MF

[maroonfox5]

Quick update

 

AQ's in and copy of defence sent to cobblers.

 

Just have to wait now.........I have a feeling we will be off on a transfer to the Mercantile court.(about 3 weeks away)

 

Will update again if any news

 

MF

[maroonfox5]

Back again...........letter received today fron the court.

Have been allocated to FAST TRACK.There's a list of requirements that the district judge has ordered.

 

Quick summary as follows:-

 

Pleadings stand as evidence in the case.

 

Parties shall by mid Dec file and serve on each other their written submissions in relation to the lawin relation to the issues raised in the pleadings.

 

7 Days before trial parties shall file indexed documents which complies with 39.5 of CPR .Copy to be sreved on claimant.

 

Case summary of not more than 500 words.

statement of issues to be decided by the court.

 

copies of all authorities and relevant extracts of any authorative texts or other sources which any party or expert witness intends to rely on or refer to.

 

Completed pre trial check lists sent to the court.

Claim will be listed for trial during period 15/1/2007 to 2/2/2007.

 

Both parties have a right to apply to have the order set aside,varied,or stayed.

 

Any ideas or opinions folks?

 

Cheers in advance

 

MF5

[gizmo111]

This is one for zoot - without a doubt.

[zootscoot]

Hi Maroonfox,

 

Parties shall by mid Dec file and serve on each other their written submissions in relation to the lawin relation to the issues raised in the pleadings.

 

This will be all the arguments you wish to rely on in your claim. Starting point would be a more detailed account of your particulars and also anything you would like to address in their defence. Have a look at Saraounias post for some ideas:

 

 

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/32610-saraounia-simpleloans-gmac-rfc.html#post370003

 

Case summary of not more than 500 words.

statement of issues to be decided by the court

.

 

Again this would include a more detailed account of your particulars and also address any points in their defence but this would be less detailed than the written submission above.

 

copies of all authorities and relevant extracts of any authorative texts or other sources which any party or expert witness intends to rely on or refer to.

 

 

Have a look at Bookies document bundle as a starting point:

 

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

 

Some of these items may only be applicable to bank charges so make sure you only include the parts relevant to mortgages. If there are any cases you want to rely on which you can't get hold of post them on here and I may be able to track them down for you.

 

Completed pre trial check lists sent to the court.

 

I assume the court will send you these to fill out.

 

All the best

 

Zoot