Harsh Letter received from Kensington *Claim struck out in court*

[jamorgan]

Hi ellielou,

 

Good luck with MCOL today.Nothing to report as yet,still waiting

will post soon as I recieve the defence.

Jx

[jamorgan]

HI ALL,

Need help!

just recieved defence from a drydens lawyers of Kessington (MAS)

 

Dear Madam,

please find enclosed, by way of service,our client's defence and counterclaim. It is given the contents of this document that your claim is completely without merit and so we strongly urge you to withdraw your claim. Should you fail to do so we reserve the right to produce this letter to the court on the question of costs which are client will seek from you.

 

Whilst writing, if you do intend to pursue your claim,please confirm why your husband has been omitted from the claim.

We look forward to hearing from you.

 

DEFENCE AND COUNTERCLAIM

1.save as appears otherwise,the defendant denies each and every allegation contained in the particulars of Claim herein as if the same were each set out and specifcally denied. This Defence and counterclaim are served without prejudice to the Defendant's contention that they establish no reasonable grounds for bringing the claim and/or are an abuse and should be struck out.

 

DEFENCE

2. The first sentence of the Particulars of Claim is noted.

3. The Defendant denies the second sentence. Redemption of the mortgage by the Claimant was not a breach of contract,but was expressly provided for under the terms of the Mortgage Offer and the Mortgage Conditions.Alternatively,if,which is denied,the claimant's redemption of the Mortgage was a breach of contract,it is contended by the defendant that the early repayment fee was a liquidated damages clause.

4.As to the third and fourth sentences, the defendant contends that the contract between the claiment fee and that the fee was not a disproportionate penalty.

5.It is denied that the erc was enforceable at common law and/or that it was a penalty clause. It is the defendant's case that the erc was the price payable under the contract by the claimant for excercising their contractual right to redeem the Mortgage earlyand was thus neither a penalty for breach of the contract,nor a liquidated dameges clause intended to compensate the defendant for breach of the contract.

6.The defendant has repeatedly explained to the claimant why the early repayment fee was leived and why the defendant will not agree to refund this.A copy of letters attached for this paragraph 5 is denied.

7.By way of a brief history, the defendant confirms:

8.On 26 March2004 the defendant sent a Mortgage offer to the claimant offering to lend a sum of £119,195 on the terms set out in the letter (including the special terns and conditions) The terms of the offer are attached.

9.Under the special conditions contained in the Mortgage Offer it was a TERM OF THE LOAN THE Claimant were entitled to redeem the Mortgage at any time before the end of the Mortgage term,but that if redeem the Mortgage at any time before the end of the Mortgage term,but that if redemption or part redemption of the loan occurred before the end of the Mortgage term an early repayment fee would be levied in accordance with the terms set out therein.

 

There are points 11-17 which i have not included in this post because it seems to me they are just repeating themselves

They have attached also a copy of our mortgage offer and terms and conditions which we signed

 

any help on this one whould be greatly appreciated.

thanks

Jx

[zootscoot]

Hi Jamorgan,

 

There is nothing of any real substance in the defence, simply denial without reasons.

 

It refers to counter claim, Have they submitted a counterclaim? You don't seem to mention this part? If they have submitted a counter claim you have 14 days to respond to this and will need to submit a defence.

 

You will need to address the issue regarding your husband also.

 

All the best

 

Zoot

[gizmo111]

Hi Jamorgan,

 

There is nothing of any real substance in the defence, simply denial without reasons.

 

It refers to counter claim, Have they submitted a counterclaim? You don't seem to mention this part? If they have submitted a counter claim you have 14 days to respond to this and will need to submit a defence.

 

You will need to address the issue regarding your husband also.

 

All the best

 

Zoot

 

Does it have to be issued in joint names - even if you are seperated?

[zootscoot]

Is he aware of the claim?

[gizmo111]

Is he aware of the claim?

 

In a cider enhanced sort of way

[ellielou]

Hi Morgy

 

A bit scary I agree.

But I agree with Zoot that they don't seem to have much substance in thier defence. If that's the best they can come up with, then you're on a winner.

 

I reckon it's scare tatics, stick to your guns girl

 

I'm right behind you x

[zootscoot]

In a cider enhanced sort of way

 

lol...seriously tho if it was a joint account you may well need his permission to proceed and split the payout... unless of course it was you alone that paid it.

[jamorgan]

Sorry guys, Thanks for responding quickly need you,getting very scared and stressed.

 

Not sure were I went wrong, still with my husband I just forgot to put his name on the money claim on line have I messed up with this.

And yes they have put under part 13 at the bottom of the page counter claim and parts 14-17 sort of repeat themselves then this:

 

AND the Defendant counterclaims:

 

(1) Costs and expenses as a matter of contract as set out in paragraph 15 herein;

(2) Alternativley to (1),the costs of these proceedings as a matter of the discretion of the court;

(3) Interest;

(4) Such further or other relief as may be necessary or desirable.

 

Then the stamanet of truth bla bla

 

Jx

[zootscoot]

Don't panic!

 

Regarding your husband simply write and explain you are conducting the litigation on behalf of both of you. Include a statement by your husband along the lines of 'I hereby give permission for Mrs X to proceed in the current claim and in the event of a payout wish the cheque to be made out in the names of Mr X and Mrs X.' Along with his signature and perhaps a phone number if they would like to ring to confirm.

 

Can you remind me if this is under 5K? I'll help you prepare a defence.

[jamorgan]

I shall do the letter tonight thankyou.

It's £7318.32 plus interest of 658.50

Thanks again hun.

x

[zootscoot]

Have you got the wording of the contractual clause they rely on to claim costs?

 

I'll stick something together for you tommorrow as I'm off out in a bit.

 

All the best

 

Zoot

[jamorgan]

I asume you need paragraph 15 but I thought i'd fill you in with a few other things that are on the defence that i did not include earlier, just incase you need to know.

 

12. The mortgage completed on or around 7 April 2004. The claimant redeemed the Mortgage with the defendant on 8 August 2005. Under the terms of the Mortgage, that was in the 2nd year following completion of the mortgage,an early repayment of 6% of the sum being repaid was payable. as a result the defendant applied a fee of £7149.64.

 

13. In the premises the Defendant denies that the claimant is entitled to recover the sum claimed plus interest plus court fee or that the claimant is entitled to any relief wahatsoever.

 

14. The defendant repeats the defence herein.

 

15.Persuant to the mortgage conditions incorporated into the mortgage,the claimant agreed to indemnity the defendant against any costs it incurred.

 

16.In the premises,the defendant claims from the caimant its resonable costs of these proceedings on a full,complete and unqualified basis.

 

17. Further,the claimant claims interest on those costs at the mortgage interest rate from the date those costs are incurred untill payment,alternatively under section 69 of the County Courts Act 1984 at such rate and for such period as the court shall redeem fit.

 

Have a good night , speak tomorrow.

Thanks again x

[gizmo111]

lol...seriously tho if it was a joint account you may well need his permission to proceed and split the payout... unless of course it was you alone that paid it.

 

Yes it was me that paid it - it is part of a remortgage - that was then transferred into my sole name.

[zootscoot]

Hi Jamorgan,

 

On the issue of your husband, it may be that you need to ammend your claim see:

 

PART 19 - PARTIES AND GROUP LITIGATION

 

Although try the letter for now and see if that satisfies Kensington. If they have not formally mentioned it in their defence you may be ok.

 

I'm working on your defence now and will post later. Its interesting that they are claiming the contractual rate of interest on their costs.

 

15.Persuant to the mortgage conditions incorporated into the mortgage,the claimant agreed to indemnity the defendant against any costs it incurred.

 

Do you have the wording of this contractual clause?

[gizmo111]

Sorry to jump in here - but do we think now that all claims on joint accounts should be issued in joint names? Not a problem if that is the case - would just rather not.

[zootscoot]

Hi Jamorgan, here is the defence as promised, the numbers and some of the structure have been distorted a little on copying and pasting it.You can get the basic jist of it. If you pm me your e-mail address I can e-mail it to you as a word document. You might want to go through and check the spelling or see if there is anything you'd like to add or leave off. I'm also going to direct some others here to take a look so you might want to see if any one else has any comments before submitting it. All the best

 

Zoot

 

 

 

 

 

 

IN THE NORTHAMPTON COUNTY COURT

 

 

 

 

 

 

 

CLAIM NO XXXXXX

 

 

 

BETWEEN:

 

 

 

JAMORGAN

 

 

 

 

 

Claimant

 

 

 

 

 

 

v.

 

 

 

KENSINGTON

 

 

 

 

 

 

Defendant

 

 

 

 

 

 

 

Defence to counterclaim

 

 

 

 

 

This defence is prepared to the contention by the defendant that the claimant has established no reasonable grounds for bringing the claim and is an abuse and should be struck out as per paragraph 1-14 of the defence also in relation to the counterclaim as set out in paragraph 15-17 of the defence that the defendant is entitled to charge the claimant for any loss or expenses suffered by the defendant in connection with the account in question and interest thereon.

 

Defence to the defendant’s contention that the claim is without merit

• 1. The claimant agrees with defendant as to paragraph 2 of the defence. It is not disputed that the claimant had a mortgage account with the defendant.
     
  2. The claimant denies paragraph 3 of the defence. The claimant was in breach of a major term of the contract. The particular term in the mortgage which was breached was an express term relating to the period of thirty years for which the mortgage was to run. This term of the contract was clearly stated in the written mortgage offer signed by the claimant. The terms of which were incorporated by reference into the mortgage deed which was not only signed, but also witnessed. There is clearly no room for doubt that such a clause existed in the contract. Similarly, there is no question that the claimant in fact redeemed the mortgage on the xx/xx/xxxx as evidenced by the final redemption statement. This date is clearly well before the contractually agreed date of xx/xx/xxxx and thus represents a clear breach of the contract.
     
  3. To further the contention that a breach of contract did in fact occur, it is submitted by the claimant that during the period of the thirty years the claimant was clearly under a contractual obligation to pay monthly installments to the defendants and clearly has not made such payments since the redemption of the mortgage.
     
  4. The claimant accepts the contention that redemption of the mortgage was expressly provided for in the mortgage offer. The term provides that an early redemption charge was payable in the event of redemption and thus represents a charge that is payable in the event of a breach of contract. This term merely anticipates a breach and does not represent the exercising of a right under the contract.
     
  5. In the event that the court were to find the said term as exercising a right and without prejudice to the above paragraph it is submitted that the fact that such a term exists does not prevent a court finding of breach of contract following the House of Lords decision in Bridge v. Campbell Discount Co Ltd [1962] AC 600
     
  6. The claimant denies the contention by the defendant that the term relating to the early repayment charge is a liquidated damages clause. A contractual term which provides for a specified amount payable (whether by a fixed sum or calculated by way of a percentage) must represent a genuine pre-estimate of loss if it is to be regarded as a liquidated damages clause Dunlop Pneumatic Tyre Co. Ltd. v New Garage & Motor Co. Ltd. [1915] A.C. 79. The claimant has repeatedly asked the defendant to provide the claimant with details of how their charge was calculated to represent a genuine estimate of their loss. The defendant has failed to respond to this request and thus the claimant is of the opinion that no genuine pre-estimate indeed took place. The claimant thus makes a respectful request to the court that disclosure of this information is provided to the claimant forthwith to bring an expeditious termination to the proceedings.
     
  7. In relation to paragraph 4 of the defence, the claimant contends that if the defendant complies with the claimant’s request to provide a breakdown of losses to which the defendant has been put to, it would reveal that the charge levied would in fact be revealed to be a disproportionate penalty under the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). The claimant’s account falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as the claimant is a consumer. The charge constitutes an unfair penalty under Schedule 2 of the said Regulations which provide an indicative and non-exhaustive list of terms which may be regarded as unfair. Under paragraph 1(e) of schedule 2 this specifically includes terms which have the object of requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation. The claimant vigorously contends that this is the position regarding the fee of £7149.64 which the defendant deemed fit to apply to the claimant’s account. It is further submitted by the claimant that the defendant’s failure to provide such information is for the reason that such information would reveal that the term is in fact a disproportionate penalty. Had the defendant been able to demonstrate that the charge was indeed a liquidated damages clause it has had ample opportunity to do so and the claimant would not have need to initiate these proceedings. It is thus respectfully submitted by the claimant that the defendant’s defence be struck out as an abuse of process or in the alternative that an order to disclose this information is made so as to satisfy the claimant that the charge is indeed a liquidated damages clause.
     
  8. As to paragraph 5 of the defendant’s defence please see paragraphs 2-7 above.
     
  9. The claimant accepts paragraph 6 of the defence in that the defendant has provided a reason for imposing the charge and I quote:

“The ERC, which was a major term of the mortgage agreement clearly detailed to you, and which you specifically agreed to pay if the account was redeemed within a short time of the mortgage completing, was charged because the precise details of the mortgage product offered to you were, as you will know, based on repayments over a period of 30 years. As such, the proposed mortgage contract was based on the receipt of monthly payments long term after the time when you decided to redeem and the ERC was included in your mortgage agreement to ensure that your mortgage remained financially viable transaction for MAS6 in the event that you chose to redeem your mortgage within the first 5 years rather than continue the contract for the agreed 30 years. A mortgage is after all by its very nature a long term finance agreement, not a short term loan and the long term funding arrangements are a key consideration.”

It can thus be seen that the defendant has not given a breakdown of its actual losses nor provided a response as to how it came up with a genuine pre-estimate of its losses. Furthermore it is contended that the reasons thus far provided by the defendant fail to take into consideration the duty of the defendant to mitigate its loss in accordance with the principles set out in Payzu v Saunders [1919] 2 KB 581.

• 1. The claimant accepts paragraph 7 & 8 of the defence.
     
  2. In relation to paragraph 9 of the defendant’s defence please see paragraphs 2-7 above.
     
  3. The claimant accepts paragraph 12 of the defendant’s defence and contends that such a charge represents a disproportionate penalty and a fee calculated by terms of a percentage of the sum repaid can not amount to a genuine pre-estimate of the defendant’s loss, but moreover represents a fee levied with a view calculated to profit from the claimant’s breach, to act as a clog on the equitable right to redeem or to punish the claimant for its breach of contract.
     
  4. In the premise of all the above, the claimant vigorously denies paragraph 13-14 of the defendant’s defence and respectfully submits that the claimant does indeed have a legitimate cause of action which should be allowed to proceed to trial in the event that the defendant continues to refuse to provide the claimant with the information requested to satisfy the claimant that the fee levied by the defendant was indeed lawful.
     
  5. The claimant further submits that the defendant has not provided a satisfactory cause for the claim to be struck out nor provided a legitimate reason for its accusation that the claimant has abused the court process. Indeed had the defendant complied with the claimants requests for information the claimant would not have needed to seek redress through the courts.

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 4 pages.

 

 

Dated: xx/xx/2006

 

Signed: Jamorgan Smith

 

 

 

 

[ellielou]

Zoot you´re a star

 

I might need that one in a few weeks x

[dolly]

Zoot, I bow down to you I honestly do.

 

That is absolutely fantastic and I am sure it will help a lot of us. You must be a wonderful lecturer

[Tinkerbelle]

Zoot, I bow down to you I honestly do.

 

That is absolutely fantastic and I am sure it will help a lot of us. You must be a wonderful lecturer

 

*pops in* Hi Dolly! *pops out*

[paulpb123]

Zoot,

That is extraordinary. You're a star!

[Dangermouse]

Wow, I am waiting on outcome.....going to stick in ERC claim for £17k & bank charges of around £5k

[Guest Tracey284]

Good luck and I'll be watching. Have asked Kensington for the exact amount we paid in early redemption. Believe it to be in the region of £18,500!!!! Need to get this back. Wish me luck.

[maroonfox5]

Zoot

 

STUNNING!!!!!!!!!!!!

 

MF5

[Les Gunn]

Zoot - you've done it again.....WOOHOO!