Birmingham Midshires ERC ***WON***

[lickthewallfatboy]

thing is,£2K just about scratches the surface.This is getting on for 9 Grand in total with interest......

 

you see my dilemma!!

[jonni2bad]

On the assumption that the courts in NI operate in very much the same manner as English ones, then you will have the great benefit of standard disclosure - this will be enough to counter any worries about costs - which are only an issue if you lose the case...! I presume you're not thinking that would happen?

 

Let me know how the NI courts operate in terms of that value and I will advise further.

[lickthewallfatboy]

I'm on the point of issuing a claim(my first on moneyclaim) and would appreciate any input from current litigants ,if there are any yet....

[gizmo111]

I'm on the point of issuing a claim(my first on moneyclaim) and would appreciate any input from current litigants ,if there are any yet....

 

Dashgnail has a judgement by default against Mortgages PLC and zoot used this but cannot find her thread at moment.

 

We entered a contract with the defendant mortgage provider in July 04 which was conducted on their standard terms and conditions. We are claiming the return of money taken by the defendant in the way of a redemption penalty charge in Oct 05. This charge relates to our breach of contract in that we terminated the contract before the agreed period. The defendant's charges for our breach are a disproportionate penalty and therefore unenforceable as they are contrary to common law as establshed in Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498 and affirmed in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79. Further, as a disproportionate penalty they are invalid under the Unfair (Contracts) Terms Act 1977 s.4 and under the Unfair Terms in Consumer Contracts Regulations 1999. Para.8 and sch.2(1)(e). [ delete In the event that the charges are not a penalty then they are unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15.delete]

We have repeatedly asked the defendant to justify their charges but they have declined to do so.

[lickthewallfatboy]

many thanks gizmo-that'll come in very handy.

 

A judgement by default already, eh??Seems like we may have good grounds after all.....

[gizmo111]

many thanks gizmo-that'll come in very handy.

 

A judgement by default already, eh??Seems like we may have good grounds after all.....

 

I am sure we have - how are you doing with Citi I received a stuipid defence from them today.

[zootscoot]

Hi Lick the wall,

You'll probably find the other needs trimming down quite a bit. This is what I used and just about fits when you add the standard bit about contractual interest.

I am claiming the return of money taken by the defendant in the way of a redemption penalty charge in Feb 06 on account no xxxx. This charge relates to my breach of contract in that I terminated the contract before the agreed period. The defendant's charge for our breach is a disproportionate penalty and therefore unenforceable as it is contrary to common law as established in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79. Further, as a disproportionate penalty it is invalid under the Unfair (Contracts) Terms Act 1977 s.4 and under the Unfair Terms in Consumer Contracts Regulations 1999. Para.8 and sch.2(1)(e). I have repeatedly asked the defendant to justify their charges but they have declined to do so.

Best of luck

Zoot

[lickthewallfatboy]

many thanks again Zoot.Your info has been invaluable.

[lickthewallfatboy]

should I actually lodge 2 separate claims-one for the £2989 switching fee in 2000,and one for £3250 for the final redmption in 2004?

 

Do I then run the risk of having them combined?

 

There is a fair sum of money involved if I run both of them in together at the £5K limit.....

[zootscoot]

Do they relate to different mortgage accounts?

[lickthewallfatboy]

same account number,but the switching charge was for moving from one product to another-effectively an ERC

 

there would be a shortfall overall of around £2k I do the 2 ERC's in one claim-but I may not have any choice....

[zootscoot]

Are you absolutely sure that it was the same account number throughout? This does make things more difficult not only for combining the claims but also for claiming the switching fee was a penalty for breach rather than for purely a service.

 

To get around the issue of combining the two claims you can do one after the other, although, this may run a risk that the 2nd claim will be struck out altogether for abuse of process ie you should have combined them initially. If you do go down this route it would be wise to start with the redemption fee rather than the switching fee as this is the stronger case.

 

If you combine them you are likely to end up in the fast track and I'm sure the know the costs risks associated, combined with the fact that the switching fee is not clear cut may leave you open to paying part costs.

 

However, if you do combine them, the chances of actually going to court may be quite slim (although as of yet still no definitive answers as to whether the Mortgage company's are going to defend in court) so it may well be that they cave into them both without you incurring any actual costs.

 

Ultimately the choice is yours

 

Zoot

[lickthewallfatboy]

the account number is definitely the same.I'm in a bit of a quandary now-the switching fee sounds enormous to be classed as a service.But if I throw it in the mix,will I be shooting myself in the foot....?

 

decisions,decisions.......

[dayglo]

I'm in exactly the same boat - my LBA has just passed 14 days and I'm ready to file.. good luck ltwfb

[lickthewallfatboy]

right-I've gonbe back to the reply they sent which included the "full and final settlement" offer,and I really should have studied this more closely-but this is what it says-

 

"on 17 October 2000,your account was switched to operate on mortgage product ABM-standard variable rate for life with a cashback incentive.It was at this point that the early repayment charges applicable to your previous product,as opposed to a "switching fee",were applied to your mortgage,totalling £2989...."

 

I think that settles it-£5000 claim it is then!!

 

all the best to you too Dayglo-who are you taking on?

[lickthewallfatboy]

moneyclaim filed for £6949 inc interest and costs......

[Bonus77]

Well done mate, I'll be following closely.

[dayglo]

good luck - I've just filed my MCOL against Natwest for my ERC (feeling nervous!)

[zootscoot]

moneyclaim filed for £6949 inc interest and costs......

 

I like your style... go 4 it big boy!!!!

 

BEST OF LUCK

 

Zoot

[ukaviator]

Hello Team. . Lickthewall, how did you get around the £5000 limit on the moneyclaim?.. did you split your claim?..

 

ukaviator

[lickthewallfatboy]

I didn't split-just worked out how much to claim from each charge to maximise interest.I'll be well please if I get all this back!!

[norvernrob]

Brilliant stuff guys, well done for taking the bull by the horns and going for this. I'm just about to start my ERC claim for almost £4k, I reckon all we need is one successful claim and the floodgates will open.

[lickthewallfatboy]

when you file a claim on moneyclaim,is there a peiod after which the papers are deemed to have been served,or do they post the fact on the site?

 

This is my first moneyclaim-the NI site is completely different....

 

thanks

[cankster]

I think the period is 48hrs

[lickthewallfatboy]

thanks cankster-I'm claiming a mortgage erc of nearly £7000 and I'd love a judgement by default on this one!!