Paul v Accord

[paulpb123]

Got the acknowledgement from the court today and Accord's intention to defend all of the claim. Getting myself ready for a hard battle but I know I am in very good company on this forum (the best one on the site I reckon). The support here is amazing!

[dolly]

With you all the way Paul - there is a lot of support here, you know that, and we have one of the best in Zoot with us.

 

Mine claim is still the same...the buggers will do it last minute I bet!

[paulpb123]

With you all the way too, Dolly, and all the others claiming back these life-threatening ERCs. I'm also expecting the last minute nonsense. You are, of course, right about Zoot, who is an inspiration. Where would we be without those cracking letters? BTW if any of you are planning to go to the protest/party, we have two spare rooms. In Hackney, so good for parking but also the 38 bus gets you to the pub in about 30 mins. I posted on the 'Official' thread but it probably got lost. PM me if you are coming and need somewhere to stay, but be warned, I have 4 children! They are very well behaved though, unlike their parents!

[paulpb123]

Checked MCOL today and, as expected, Accord have submitted their defence at last (and there was me, fingers twitching over the judgement button). I wouldn't mind betting that they do a counter-claim for their costs. Will post their defence when I get the paperwork. The fun begins...

[Les Gunn]

Get stuck in paulpb123 and good luck!

 

We're all getting close and the worm is turning

[paulpb123]

I certainly will get stuck in, Les. There are rather a lot of us getting close now and with some victories trickling in. I have a feeling that once we've broken the mortgage companies in the same way that the banks have been beaten this forum is going to get very busy!

[dolly]

Bummer for you - know what you mean about the hovering finger!!

 

Would be interesting to know which solicitor is dealing with yours - PM me the details when you get your forms. I suspect that a lot of us will have the same firm as their responses all sound very familiar.

[paulpb123]

Yes, they do all seem alike. The solicitors for Accord are called Group Legal. Do you think they have a template defence? Maybe there's a solicitorsunderpressureactiongroup out there somewhere! The defence I got from Barclaycard yesterday was also very generic with no specifics about my case. Judging by the letters I've received from Accord so far, I'm expecting the usual T & Cs argument and the 'you didn't breach your contract' nonsense.

[catherinebear]

Dear Paul

 

Thanks for all the info you let me have regards mortgages it was so helpful. It makes good reading to see how you are all doing as you say hopefully the building societies will begin to cave in and that will start the ball well and truly rolling. I have issued mcol for the charges that SPML GMAC and Kensington made and then if they succeed I will hopefully then file in the court for the ERC's. Good luck and many thanks for pointing us in the right direction.

Catherine and Dave

xx:)

[paulpb123]

Catherine, I hope you are feeling better after your fall. Well, the postman comes late in Hackney but I now have their defence. For the sake of keeping a record and so others can compare what they receive by way of defence, here it is and my apologies for the tediousness:

 

1 Each and every allegation in the claimant's claim is denied.

2 On or about 22nd December 2004 the Claimant and one xxx ('Miss xxx') entered into a mortgage ('the Mortgage') of property known as xxxx, to secure a loan of £xxxx ('the loan') from the Defendant to the Claimant and Miss xxx.

3 The terms of the advance were evidenced or contained in an offer of advance ('the Offer') from the Defendant to the Claimant and Miss xxx. The offer contained the following (among other) terms:-

(1) The loan was for a term of 25 years;

(2) The interest rate was variable...until 30th September 2009 and thereafter at the Defendant's Standard Variable Rate;

(3) In the event that the loan was repaid early, there would be an early repayment charge of £9, 750.

4 The Defendant will refer to the terms of the mortgage at the trial or sooner hearing of the Claimant's claim for its full terms construction and effect. [what does that mean?]

5 In or about January 2006 the Claimant and Miss xxx asked to transfer their loan to a different mortgage product from the defendant. Pursuant to the request, by offer dated 17th January 2006 ('the Second Offer'), the defendant offered to transfer the Loan of the Claimant and Miss xxx to its fixed rate product, whereby the interest rate was fixed at 4.59% for 24 months.

6 The Second Offer contained the following (among others) term contained in a 'Product Transfer Acceptance Form'. This provided:-

1. I/We wish to delay completion of the product transfer until the date when these early repayment charges cease to be payable, provided that such date is after 18th March 2006.

2. I/We wish to pay the early repayment charge added to my/our mortgage before the product transfer is completed, subject to the product transfer being completed before the expiry of this product transfer offer;

3. I/We wish to have the ERC added to my/our mortgage balance and understand that interest will be charged on this amount daily

7 The term refered to [i'm paraphrasing now and losing the will to live!] in para 6 above was agreed and the Claimant opted for option 3, add the charge to our mortgage.

8 The Defendant will refer to the Second Offer and the signed product transfer acceptance form at the trial or sooner hearing of the Claimant's claim for its full terms construction and effect [that phrase again]

9 Pursuant to the Second Offer and the request contained in the product transfer acceptance form, the Defendant transfered the Loan to its fixed rate product and debited the joint account of the Defendant and Miss xxx [yes, that's what it says, the Defendant!] with the Defendant in the sum of £9, 750.

10 The Defendant believes that the subject of the Claimant's claim is the debit of £9, 750 to the joint account of the Claimant and Miss xxx referred to in paragraph 9 above and the matters refered to in the subsequent paragraphs of this Defence are predicated on that belief. The Defendant accordingly pleads as follows:-

(1) The claim is misconceived and ought to be struck out in that:-

(a) the claim is for return of money which has never been paid to the Defendant by the Claimant nor received from the Defendant from the Claimant. For the aavoidance of doubt, the point here is that the sum of £9, 750 merely represents a debit to an account, not a payment; further or in the alternative

(b) the debit was to the joint account. Any sums to be re-credited (if at all) to the account fall to be re-credited to both the Claimant and Miss xxx. It follows that the Claimant has no right to bring the present claim solely on her own behalf and with the absence of Miss xxx to the proceedings.

(2) As to the allegation that debit was a penalty the Defendant will say:-

(a) the debit was made a term of the Second Offer and represented part of the contractual price for the product transfer. It follows that it cannot be a penalty; further or in the alternative

(b) if the debit was made pursuant to the terms of the Mortgage and the Offer, under the term stipulating for an ERC, again, this represented the contractual price for the product transfer. It follows that it cannot be a penalty; further or in the alternative

© if it intended to be alleged that the debit was a sum to be paid on a breach of the terms of the loan, so that it might be regarded as a penalty (and such allegation is denied) the debit did represent a genuine pre-estimate of the cost or loss to the Defendant in that:-

(i) the US Libor based interest rate charged on the loan was subject to a currency interest rate 'swap' by the Defendant whereby the Defendant agreed to pay a rate of US LIBOR (then 3.83%) + 1.32% to a 'swap market' and in return would receive from the 'swap market' an interest rate equivalent to UK LIBOR over the period in which the early repay was to apply;

(ii) the defendant was exposed to liability for continuing payments to the 'swap market' at the US LIBOR linked rate, but with no correspondingly linked interest payments from the Claimant

(iii) the exposure to liability in (ii) above was unpredictable and incapable of precise pre-estimate since it was based on US LIBOR rates;

(iv) In fact, at the time of product transfer US LIBOR rates had risen and the Defendant was exposed to paying the difference between 5.21% and 3.83% (a difference of 1.38%) (equivalent to £2,700 odd per year) over the remaining term of the 'swap'.

11 The terms of the loan were in plain English...etc and it is denied that the Defendant was in breach of the UTCCR regulations.

 

I'm no legal expert but that doesn't sound very convincing, although they do produce a figure of £2, 700 per year. We've only done this claim in one name and didn't think you had to have both names. Do we just write a letter to accompany the AQ giving the other person's permission? Sorry to inflict this on all you fine people. Any comments would be warmly appreciated.

Paul

[paulpb123]

Any thoughts on the above?

[paulpb123]

Any comments on Accord's defence (posted on previous page) would be very welcome. Thank you,

Paul

[zootscoot]

Hi Paul,

 

A few issues here.

 

Firstly they allege that you have never paid the ERC

 

(a) the claim is for return of money which has never been paid to the Defendant by the Claimant nor received from the Defendant from the Claimant. For the aavoidance of doubt, the point here is that the sum of £9, 750 merely represents a debit to an account, not a payment; further or in the alternative

 

 

However, in taking out the new mortgage you have incurred liability to pay the fee. At worst if this argument is to succeed they would need to reduce your current mortgage by 9,750.

 

(b) the debit was to the joint account. Any sums to be re-credited (if at all) to the account fall to be re-credited to both the Claimant and Miss xxx. It follows that the Claimant has no right to bring the present claim solely on her own behalf and with the absence of Miss xxx to the proceedings.

 

 

You may need to amend your claim to add Miss xxx

 

(2) As to the allegation that debit was a penalty the Defendant will say:-

(a) the debit was made a term of the Second Offer and represented part of the contractual price for the product transfer. It follows that it cannot be a penalty; further or in the alternative

 

They have already stated it was for ending the old mortgage early in para 3(3).

 

(i) the US Libor based interest rate charged on the loan was subject to a currency interest rate 'swap' by the Defendant whereby the Defendant agreed to pay a rate of US LIBOR (then 3.83%) + 1.32% to a 'swap market' and in return would receive from the 'swap market' an interest rate equivalent to UK LIBOR over the period in which the early repay was to apply;

(ii) the defendant was exposed to liability for continuing payments to the 'swap market' at the US LIBOR linked rate, but with no correspondingly linked interest payments from the Claimant

(iii) the exposure to liability in (ii) above was unpredictable and incapable of precise pre-estimate since it was based on US LIBOR rates;

(iv) In fact, at the time of product transfer US LIBOR rates had risen and the Defendant was exposed to paying the difference between 5.21% and 3.83% (a difference of 1.38%) (equivalent to £2,700 odd per year) over the remaining term of the 'swap'.

 

 

Any commercial risk they expose themselves to is beyond your control and you can not be expected to indemnify their loss for their bad choice of risk exposure. Such interest rate swap agreements are indeed unpredictable which is why Local Authorities have been stopped from using them. See:

 

House of Lords - Kleinwort Benson LTD. v. Lincoln City Council

Kleinwort Benson LTD. v. Mayor etc. of the London Borough of Southwark and Others

Kleinwort Benson LTD. v. Birmingham City Council

Kleinwort Benson LTD. v. Mayor etc. of the Lo

 

All in all not a strong defence although you may need to amend your claim to add your partner and also put in an alternative to the return of the money that your current mortgage is reduced. Also did you claim the interest paid on the ERC under the new mortgage if not it might be worth adding this to your amended claim.

 

All the best

 

Zoot

[paulpb123]

Thank you Zoot, I really do appreciate your help, as do many others. I did claim the 8% interest when I made the claim. Do you mean that I should ask for a cheque rather than the money being deducted from the mortgage? Think I'll visit Clerkenwell Court on Monday and find out about amending my claim. I've yet to do the AQ.

[paulpb123]

I'm filling in the AQ and they've sent me the N149 form even though my claim is over 10k. Any significance in this? Also, is there anything I need to put in the 'other information' box or should I wait for the hearing? Should I amend the claim before sending off the AQ? Many questions but I've not been at this stage before - the banks have caved in quite easily.

[paulpb123]

I contacted the court's helpline this morning and was advised that to amend the claim I simply strike out in red the bits I want to amend and include the new info. She said there's no fee for this but I'm sure I've read somewhere that it costs £35? Also, any thoughts on my last post heartily welcome - I really don't want to get this wrong! Thanks in advance.

Paul

[zootscoot]

Hi Paul,

 

Generally you need to fill in form n244 to amend a claim and the fee is 35.00, although if it is a simple addition of a name they may be happy to accept it without the need to go through the process. There is a form here you can download if needed.

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_0400.pdf

 

Also it might be worth checking with the court about the N149 they may have simply sent it in error. Although if they sent you that form and you return it they can not penalise you for filling in the wrong form.

 

Guidance on completing the allocation questionnaire can be found here:

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html

 

Just adapt it for mortgage charges. Also have a look at Graemec's here:

 

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/34426-gc-standard-life-bank.html#post389555

 

Hope this helps

 

All the best

 

Zoot

[paulpb123]

Thank you Zoot. Phoned court again and I do have to amend it with N244 and it is £35. Sending this today. I was also advised to complete the N149 AQ even though my claim is over 10k. The judge will decide in any case, apparently. I think I'm making hard work of all this!

[paulpb123]

Well now I'm really confused. I've downloaded the N244 form (Application Notice). It asks how I'd like the application dealt with. I just want to add another name to the claim so no need for a hearing. It says in that case fill in Qs 5 & 6 below. Q5 - Level of Judge. Q6 Parties to be served. I don't know the level of the judge. I suppose the parties to be served are accord's solicitors. Then there are parts A, B and C. I only want to add another name to the claim and its asking me to include evidence to support the application, a draft of the 'order' I am seeking, identification of any rules or statutory provisions. I'm now thinking it would be better to send a signed letter with the AQ stating that 'Miss xxx' agrees to the claim being made on her behalf. I'm probably being thick here but I really can't get my head around this. Has anyone else successfully added a name to a claim? Has anyone won a case without doing this? Help!!!!!!

Paul

[zootscoot]

Calm down, Calm down,

 

Level of judge would be district judge in small claims or circuit judge in county court. Parties to be served would be the solicitors. A letter from miss x would be the evidence to support the application. A draft order and statutory provisions are not applicable these would only apply if you were changing the substance of your claim.

 

Hope this helps

 

Zoot

[paulpb123]

Feeling calmer! Just one last thing (promise). Should the letter simply give permission for the case to proceed in one name or ask to be included on the claim? Thanks for your patience Zoot. Hope I can buy you a drink on Friday:)

[zootscoot]

Should the letter simply give permission for the case to proceed in one name or ask to be included on the claim?

 

Best to do both so that you cover all bases!

 

I'm not sure how late I'll be staying Friday. Mainly coming down for the protest and and a quick drink after as I'll have my daughter in tow. May stay longer see how things go. Hopefully catch up with you!

 

All the best

 

Zoot

[paulpb123]

Thanks Zoot,

I'll do that. Can't make the protest but will be going straight to the pub from work so I'll be there early. Hope to catch up with you! How will people recognise each other? Oops, that was another question!

Very best,

Paul

[zootscoot]

I'll be the one in the CAG sweatshirt with ZOOTSCOOT on the back

 

Easy really!

 

Look forward to meeting you

 

Zoot

[paulpb123]

That is easy Zoot, unlike claiming a bloody ERC. What's your tipple?