GC vs Standard Life Bank** WON** (Eversheds solicitors)

[GraemeC]

Ok, am at the stage where I want to issue proceedings against Standard Life Bank for an ERC, only problem is their registered office is in Scotland (I live in Manchester) and I understand I cannot use MoneyClaim Online (there is no English address which I can find where they accept correspondence)

 

Can anyone help me with some information on how to issue proceedings in Scotland?

[barracad]

You will need to use an N1 form instead of Moneyclaim, and list one of their offices in England rather than the Scottish Head Office.

[MARTIN3030]

They have an office in London but it is Standard life Healthcare.......

[paddym]

do a google search for them may throw up different addresses !

[MARTIN3030]

I looked at this ......no joy fraid.

[GraemeC]

Found a way round it! Standard Life Assurance (the Group Holding Company) have a number of regional offices, as listed here

 

Area Office Contacts

 

I have served my summons on their Manchester office (after calling them to confirm any correspondence addressed to Standadrd Life Bank would be passed on to their head office) - someone in the bank charges section has already done this and they won!

[GraemeC]

Claim issued 3rd Oct, deemed served on 8th Oct

 

Acknowledged 20th Oct (but only after I called their legal team on the 16th and told them I didnt want this dragged out by requesting a judgement and them applying for it to be set aside!)

 

Defence required by 5th Nov (nothing as yet...)

[paddym]

well done so far you seem to have it all under control !

[GraemeC]

Defence received this morning, its pretty thin. No breakdown of costs, usual bit about 'you agreed to the terms and conditions' even a paragraph asking for proof that I repeatedly asked them to justify their charges (er...how about the letters requesting repayment and informing you of the forthcoming court action specifically asking for this)

 

Only bit I cant think how to easily refute off the top of my head is their contention that we didnt break the contract and the ERC -

 

"It represented a charge made by the Defendent upon the early exercise of her right to redeem the mortgage"

 

I'm sure we've covered this ground before, but I cant find a definitive counterargument for this (other than the OFT 'even if its expressed as a right it may be considered a penalty' paragraph which I wouldnt like to rely on)

 

Suggestions greatly appreciated

[paddym]

Read Through Zoots Letters Its There Somewhere Or Better Still Wait Until She Has A Look At It For You Im Sure She Has Covered That One Somewhere !

[GraemeC]

I think I've found what I'm looking for (thanks again Jamorgan/Zoot)

 

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.

 

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.

 

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.

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

[GraemeC]

Ok, I have an allocation questionnaire to fill in this weekend

 

Not sure what happens from this point on - do I need to include any details of my counter-arguments to the defence or save these for any potential day in court?

 

Only part of the defence which seems to have any merit is the argument that the ERC represented a right under the contract - what are peoples thoughs on their chances of success with this defence?

[zootscoot]

Hi Graeme,

 

You do not have to respond to their defence at this point unless they have made an application to have your claim struck out or if they have made a counter claim.

 

A guide for filling in allocation questionnaries can be found here:

 

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

 

Best of luck

 

Zoot

[GraemeC]

Filled in the AQ and sent to court last week

 

Included the following in the 'Other information' section. Probably a little naughty, but I though anything which draws the judges attention to Std Life's failure to provide a breakdown of their charges has to be a good thing...

 

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 took place.

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 disputed contractual term is in fact a disproportionate penalty.

Had the defendant been able to demonstrate that the charge was indeed a liquidated damages clause, and they have had ample opportunity to do so, the claimant would not have needed to initiate these proceedings.

It is thus respectfully submitted by the claimant that an order to disclose this information is made so as to bring an expeditious termination to the proceedings.

Attached are copies of the claimant’s correspondence with the defendant prior to the initiation of legal proceedings. The requests for details of how their charges were calculated are highlighted in yellow

[zootscoot]

Looks Good!

[GraemeC]

Heard nothing for a while, so called the court today - AQ was processed yesterday and the date has been set for Jan 16th 2007 in Manchester

 

I'm confident I can handle things in court, but just to clarify there is no problem with me representing my girlfriend in the small claims court? (she really doesnt want to speak at all and would rather not go at all if possible)

 

Also, is there an online copy of Campbell Discount vs Bridge anywhere? (for court bundle)

[zootscoot]

Hi Graeme,

 

You can represent your girlfriend in the small claims court. You can find Campbell Discount v. Bridge here:

 

http://www.ucl.ac.uk/laws/current/undergraduate/courses/contract-tort-II/materials/cases/Bridge.pdf

 

All the best

 

Zoot

[GraemeC]

Zoot you are a star! Thank you very much, now got copies of all the cases I need.

 

Just waiting for confirmation of my court date through the post - would love it if the judge has actually ordered disclosure of Std Life's calculations!

[GraemeC]

Update time (have been rather busy moving house!) - in response to my slightly naughty Allocation Questionnaire - Section G, I received a copy of a rather haughty letter from Eversheds.

 

The letter was addressed to the court and complained about my request in Section G for disclosure of their costs due to my breach - apparently I should know better, given that we are on the small claims track (I will point out to the judge on the day that I am only a layperson and provided the information with the best of intentions)

 

Anyway, the letter from Evershesds described the request for a breakdown of costs as a non-issue as I was cleary exercising a right under the contract and they will supply a witness statement to support this(?????).

 

I do remember reading a rebuttal of the 'exercising a right' argument, but cant find it anywhere - could someone help me out by posting a link?

 

Thanks, Graeme

[zootscoot]

Hi Graeme,

 

A witness statement is simply a letter sent to the court with a section at the bottom stating I believe the statements contained are true signed xxx

 

The arguments to the no breach argument are contained in this letter:

 

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/51946-letter-response-no-breach.html

 

All the best

 

Zoot

[GraemeC]

Doh!

 

Thanks (again) Zoot

[GraemeC]

No admission of liability, but settled in full two weeks before the court date - redemption charge, interest @ 8% and court fees refunded. The girlfriend is very happy! (it was her redemption charge)

 

The defendants solicitors were Eversheds and I note that a number of other cases where Eversheds are the acting for the defendant have gone to withing two weeks of the court date only to be settled - could it be that they believe they cannot win in court but are doing everything to deter people from pursuing their claims....

 

Keep going everyone!

[dolly]

Brilliant news, congratulations!!

 

Very pleased for you - how much was it, by the way?

 

Enjoy it

[GraemeC]

Sorry, settled for approx £2,750 including interest @ 8% and court fees

[zootscoot]

Excellent news!!!!!!!!!!!

:D

Don't forget to fill out the survey

CONGRATULATIONS