Tamadus v Abbey ERC

[tamadus]

Not sure if you can object to it, but I thought Abbey had taken everything back in house from DLA Piper?

 

Cheers

 

Michael

 

They had Michael but obviously realise they are making too many mistakes, so have passed it back to them again.

 

I expect everyone else that had the wrong defence will get the same as I have. It looks fairly standard but I'll post it on here and maybe get Zoot to take a look and compile a suitable response to it.

[tamadus]

i have heard nothing for ages from the court, abbey or DLA Piper.

 

I phoned the court about 10 days ago to be told allocation had gone to a judge and I should hear something in a few days but nothing yet. This is the first I have heard since they filed a defence middle of November.

 

I guess it means no cheque before Christmas now

[tamadus]

Here is the full revised defence thay have applied for under CPR 17.

 

 

Claim No XXXXXX

IN THE XXXXXX COUNTY COURT

BETWEEN:

TAMADUS

Claimant

- and-

ABBEY NATIONAL PLC

Defendant

AMENDED DEFENCE BY ORDER OF

DISTRICT JUDGE [ ]

DATED [ ]

1. Save as is specifically admitted in this Defence, the Defendant denies each and every allegation set out in the Particulars of Claim.

2. It is admitted that the Claimant has a mortgage account with the Defendant, reference XXXXXXXXXXXX ("Mortgage").

3. At all times the Mortgage has been subject to the applicable terms and conditions ("Conditions"), which form part of the contract between the Claimant and the Defendant and to which the Claimant agreed when he took out the Mortgage. The Defendant will refer at trial to the full Conditions.

4. It is admitted that there was a term of the contract, agreed by both parties, which made the Claimant liable for a charge in the event the Defendant chose to redeem the Mortgage early. This was a core term of the Mortgage referred to in Mortgage documentation as a product related charge ("PRC").

5. The Claimant chose to redeem the Mortgage early, and pursuant to the terms of the Mortgage, became liable to pay the PRC to the Defendant. The PRC was duly calculated in accordance with the terms and conditions of the Mortgage, and was paid by the Claimant, in accordance with his contractual obligations.

 

 

 

6. The PRC is the price which the Defendant charges when the Claimant exercised his right to redeem the Mortgage as such it is not an indemnity because it does not indemnify the Defendant against any liability it incurs to another person. Accordingly, to the extent that the claimant relies on Unfair Contract Terms Act 1988 ("UCTA"), it is expressly denied that UCTA applies to the PRC

7. To the extent that the Claimant relies on the Unfair Terms in Consumer Contract Regulations 1994 and 1999 ("UTCC") it is expressly denied that the UTCC apply to the PRC.

8. In the event that the UTCC do apply to the PRC then the Defendant contends that:

8.1 The UTCC stipulate that certain contractual terms may carry a presumption of unfairness

and could be subject to an assessment as to their unfairness because of their nature.

8.2 The UTCC state that an assessment of the fairness of any term shall not apply to terms

relating to the price of the product. The PRC the Claimant was required to pay was directly referable to the actual price of the product offered and as such the Defendant maintains that the UTCC does not apply and the terms are not subject to an assessment, nor does a presumption of unfairness arise.

8.3 In the event that the UTCC did apply and the even if the PRC was subject to an

assessment the PRC would not automatically be deemed unfair. The whole of the circumstances whereby the Claimant agreed to take out the Mortgage would be taken into consideration.

9. The Defendant contends that the following circumstances in which the Claimant entered into the Mortgage do not render the PRC unfair should the PRC be subject to an assessment under the UTCC.

9.1 The Claimant was aware of the terms of the PRC prior to entering into the mortgage.

9.2 The terms of the product were set out with sufficient clarity as to be clearly

understandable and with sufficient certainty so as to enable you to be aware at the outset of the amount you would pay on early redemption.

9.3 The Claimant would have been free to select other products which carry a lower PRC or

alternatively, to select a basic mortgage at standard variable rate which does not carry a PRC.

2

 

 

 

10. The Defendant contends that the common law of penalties only applies to sums of money that are expressed by a contract to be payable by a party in the event that that party breaches the contract and, since the Conditions did not expressly or impliedly oblige the Claimant to retain the mortgage until the end of the discount period, the Claimant's early repayment was not a breach of contract. Accordingly, the PRC cannot be deemed to be a penalty and/or unenforceable

II. In addition, the PRC cannot be considered as a penalty, as it is a charge designed to cover the cost

to the Defendant of funding the product on early redemption. It is therefore calculated to compensate the Defendant over time and on average, for the cost of early redemption. Accordingly it is a genuine pre-estimate of loss suffered by the Defendant as a result of the Claimant's decision to redeem the Mortgage early, and, as such, cannot be deemed to be a penalty and/or be unenforceable

12. No admissions are made as to the amounts claimed by the Claimant and the Claimant is put to strict proof of the same.

The Defendant believes that the facts stated in this defence are true.

I am duly authorised by the Defendant to sign this statement.

Full name ___________________________________________________

of DLA PIPER UK LLP

signed ____________________ position or office held _________________________

Defendant's solicitors

[zootscoot]

Hi Tam,

Have added some responses in red as guidance.

Claim No XXXXXX

IN THE XXXXXX COUNTY COURT

BETWEEN:

TAMADUS

Claimant

- and-

ABBEY NATIONAL PLC

Defendant

AMENDED DEFENCE BY ORDER OF

DISTRICT JUDGE [ ]

DATED [ ]

1. Save as is specifically admitted in this Defence, the Defendant denies each and every allegation set out in the Particulars of Claim.

2. It is admitted that the Claimant has a mortgage account with the Defendant, reference XXXXXXXXXXXX ("Mortgage"). Agreed

3. At all times the Mortgage has been subject to the applicable terms and conditions ("Conditions"), which form part of the contract between the Claimant and the Defendant and to which the Claimant agreed when he took out the Mortgage. The Defendant will refer at trial to the full Conditions. Agreed

4. It is admitted that there was a term of the contract, agreed by both parties, which made the Claimant liable for a charge in the event the Defendant chose to redeem the Mortgage early . This was a core term of the Mortgage referred to in Mortgage documentation as a product related charge ("PRC"). Denied that claimant chose to redeem the mortgage but was unable to meet the contractual obligations.

5. The Claimant chose to redeem the Mortgage early denied, and pursuant to the terms of the Mortgage, became liable to pay the PRC to the Defendant. The PRC was duly calculated in accordance with the terms and conditions of the Mortgage, agreed and was paid by the Claimant, in accordance with his contractual obligations. Denied, was paid in consequence of breach of contract.

 

 

 

6. The PRC is the price which the Defendant charges when the Claimant exercised his right to redeem the Mortgage as such it is not an indemnity because it does not indemnify the Defendant against any liability it incurs to another person. Accordingly, to the extent that the claimant relies on Unfair Contract Terms Act 1988 ("UCTA"), it is expressly denied that UCTA applies to the PRC Accepted, claimant will therefore not expect any losses related to third parties to appear in the defendant's disclosure to demonstrate any actual losses or genuine pre-estimate of losses.

 

7. To the extent that the Claimant relies on the Unfair Terms in Consumer Contract Regulations 1994 and 1999 ("UTCC") it is expressly denied that the UTCC apply to the PRC. Claimant puts the defendant to strict proof

8. In the event that the UTCC do apply to the PRC then the Defendant contends that:

8.1 The UTCC stipulate that certain contractual terms may carry a presumption of unfairness

and could be subject to an assessment as to their unfairness because of their nature. Accepted

8.2 The UTCC state that an assessment of the fairness of any term shall not apply to terms

relating to the price of the product. Acceped .The PRC the Claimant was required to pay was directly referable to the actual price of the product offered and as such the Defendant maintains that the UTCC does not apply and the terms are not subject to an assessment, nor does a presumption of unfairness arise. Denied, the PRC was a charge consequent on breach of contract and not relating to the actual price of the product. (see also para 10 below)

8.3 In the event that the UTCC did apply and the even if the PRC was subject to an

assessment the PRC would not automatically be deemed unfair. The whole of the circumstances whereby the Claimant agreed to take out the Mortgage would be taken into consideration. Agreed

9. The Defendant contends that the following circumstances in which the Claimant entered into the Mortgage do not render the PRC unfair should the PRC be subject to an assessment under the UTCC.

9.1 The Claimant was aware of the terms of the PRC prior to entering into the mortgage. Agreed

9.2 The terms of the product were set out with sufficient clarity as to be clearly

understandable and with sufficient certainty so as to enable you to be aware at the outset of the amount you would pay on early redemption. Denied, there exists ambiguity over the clause as to whether it is a charge pursuant to a breach of contract or a charge relating to exercising a right. See Reg 7 of the UTCC

9.3 The Claimant would have been free to select other products which carry a lower PRC or

alternatively, to select a basic mortgage at standard variable rate which does not carry a PRC. Denied, the claimant was only free to choose products which were within his personal budget. Majority of mortgage products attract similar redemption fees. At the time of taking out the mortgage he was unable to predict the need to end his mortgage early and the claimant took the mortgage withthe intention of honouring his full contractual obligation.

2

 

 

10. The Defendant contends that the common law of penalties only applies to sums of money that are expressed by a contract to be payable by a party in the event that that party breaches the contract and, since the Conditions did not expressly or impliedly oblige the Claimant to retain the mortgage until the end of the discount period, the Claimant's early repayment was not a breach of contract. Accordingly, the PRC cannot be deemed to be a penalty and/or unenforceable Denied , the PRC represents a charge in relation to a breach of contract on by the claimant in that he terminated the mortgage contract before the contractually agreed period of XX years.

 

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 by us 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 mortgage was in fact redeemed 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. Furthermore in the case of Campbell Discount v Bridge the House of Lords held that a contractual term giving rise to an option to termiante early did not prevent a finding of breach of contract.

 

When I terminated my mortgage early it was purely to be free from the burden of the contractual obligation. I was not aware that I was exercising an option to terminate but merely knew that if I did end early I would have to pay a penalty. If I am unaware that I am exercising a right how can it be said that I intended to exercise such a right. (You may want to add here any reasons which forced you to end early in order to strengthen your argument).

 

Furthermore, clause xx of the terms and conditions of the mortgage contract is merely a penalty clause disguised as an option to exercise a right. The claiamnt respectfully requests the court should consider substance of the clause rather than the form. It is thus submitted that the clause is simply a pretence at conferring a right to exercise an option when in essence it is simply a term setting out the consequences of a breach of contract and as such in the absence of a genuine pre-estimate it amounts to a penalty.

 

As such, the clause can thus be seen as ambiguous as there are two possible interpretations of clause. In the event of ambiguity in a written contractual term, the contra proferentem rule requires the court to resolve any ambiguity against the party who drafted the term. In this regard I would also like to refer to Regulation 7 of the Unfair Terms in Consumer Contracts Regulations 1999:

 

7. - (1) A seller or supplier shall ensure that any written term of a contract is expressed in plain, intelligible language.

 

(2) If there is doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail.

 

II. In addition, the PRC cannot be considered as a penalty, as it is a charge designed to cover the cost to the Defendant of funding the product on early redemption. It is therefore calculated to compensate the Defendant over time and on average, for the cost of early redemption. Accordingly it is a genuine pre-estimate of loss suffered by the Defendant as a result of the Claimant's decision to redeem the Mortgage early, and, as such, cannot be deemed to be a penalty and/or be unenforceable The claimant puts the defendant to strict proof of the actual losses occured by the breach of contract and evidence of the genuine pre-estimate having taken place.

12. No admissions are made as to the amounts claimed by the Claimant and the Claimant is put to strict proof of the same. Accepted, the claimant will supply the court and the defendant with a copy of the statement detailing redemption sums paid.

[tamadus]

many thanks Zoot you have a lovely way with words

 

I'll get it typed up ready to submit as a reply in the morning

[e28bigalbexley]

Hi Tam,

 

Have added some responses in red as guidance.

 

 

Im in total awe:eek: :D

[rascal3103]

Zoot,

 

I will pick what I can for the defence I received from Abbey from what you have written for Tamadus. Could I ask if you would be so kind as to offer an opinion to mine (if the need arises) closer to the time if I post it ?

 

I wont do it now as I dont want to burden you with anything as yet, I am sure you have eniough on your plate.

 

Have a good crimbo everybody if i dont speak to any of you before.

[tamadus]

Hi Rascal,

 

Might have known they would notice lmao, I am sure Zoot wont mind you borrowing bits

 

Just in case we dont speak before hope you and your family have a great xmas.

[tamadus]

ooooh I see thailand lurking

[Thailand]

*waves* not long since I pointed someone in the way of Zoots ERC thread.... genius!

[zootscoot]

Hi Tam and Rascal,

 

Yes Rascal feel free to use any info I post. Also have a look at the new sticky threads in this forum. If you get stuck pm me. This forum is ever increasing and more and more people at critical stages. I don't seem to get round to everyone anymore! Gone are the days when the questions were a simple what does this charge mean and can I claim it lol.

 

All the best

 

Zoot

[tamadus]

Got a letter from my local court today 19/12/06 informing me that the District Judge has:

 

Upon reading the Ex Parte application

 

IT IS ORDERED THAT

 

The defendant has permission to file and serve an ammended defence by 5 Jan 2007

 

The matter be referred to a District Judge for allocation and directions upon the filing of an amended defence or, if now files, after 5 Jan 2007.

 

 

 

So as soon as I get service of the amended defence I'll file my reply to it.

 

Time to get the court bundle completed I think

[e28bigalbexley]

 

Time to get the court bundle completed I think

 

Looks like someones wishing for, A new ink cartridge, a ring binder, some nice new document pockets (multi punched), some nice red ribbon and a ream or two of printer paper, in their Xmas stocking :o

 

And a cheque in the post for the early in the New Year.

 

AL.

[tamadus]

Looks like someones wishing for, A new ink cartridge, a ring binder, some nice new document pockets (multi punched), some nice red ribbon and a ream or two of printer paper, in their Xmas stocking :o

 

And a cheque in the post for the early in the New Year.

 

AL.

 

Never let it be said I am not prepared. Like any good boy scout I have plenty of paper, ink binders and the obligatory ball of string.

 

That cheque is definitely on my wish list though

[tamadus]

Quick update,

 

The amended defence was served and accepted by the District Judge who should have given directions on or shortly after the 5 January 2007. heard absolutely nothing yet so I am going to file and serve my reply to the amended defence on thursday when I am at the court on another matter.

 

Hoping they will be able to give me some news then as well

[zootscoot]

Cor blimey your busy Tam!

 

Whatever did you do before you found CAG and spent half your time in the courts Lol!

 

Best of luck

 

Zoot

[tamadus]

LMAO Zoot, I think I had something called a life lol.

 

getting onto the tricky ones now so probably going to spend more time there and on the phone to ICO and OFT.

 

I have 2 in breach of CCA and a big one which covers CCA and DPA breaches on a big scale.

 

Not forgetting my Abbey one of course, just wish the court would give directions for it now.

[tamadus]

Finally got a court date assigned for 26 March 2007

 

Not sure if this is relevant but there is a note on the Notice of Hearing:

 

Please Note: This case may be released to another Judge, possibly at a different Court

 

Wondering if somebody is considering moving mine to the Mercantile Court

[millymollymoo]

Good luck tamadus:)

 

Milly x:)

[tamadus]

Good luck tamadus:)

 

Milly x:)

 

Thanks Milly just a case of getting my court bundle finished and waiting now.

[JULI99]

Good luck I will be watching with interest how "that" piece of paper is recieved.

[Sassafras]

Delighted to hear you are plugging way at this. Abbey is one of three I am taking all. All currently at the stages of requesting the refund. Await with bated breath for the 'battle to commence'.

[kippy2]

Finally got a court date assigned for 26 March 2007

 

 

Please Note: This case may be released to another Judge, possibly at a different Court

 

 

no it wont be moved mine say that aswell

[tamadus]

Good luck I will be watching with interest how "that" piece of paper is recieved.

 

I'll slip it in somewhere Juli many thanks.

[tamadus]

no it wont be moved mine say that aswell who is your judge as mine in shrew. covers where you are aswell.

 

Hi Kimmy no time no speak

 

I have District Judge Chapman, and thats probably just told the men in black who I am

 

Is yours an ERC or bank charges ?