Orge Vs Barclays/Woolwich - Arrears Charges

[orge]

So, as alluded to previously, I have had conversations with Barclays quite recently that lead me to "catching up" on at least one monthly payment. Looking at the T&C's (attached) and the chronology, it does seem possible this happened right at the beginning.

 

31/8/01 - Initial Advance/Legal Charge Signed

28/9/01 - First Payment made

 

Referring to the T&C's:

"1.8 "Monthly Date" means the last Working Day of

each month during the Term or such other day as the

Company may from time to time nominate in writing

to the Borrower

 

1.9 "Monthly Payment" means the amount

determined by' the Company as being payable on a

Monthly Date

 

3.1 The Borrower shall repay the Amount Secured to

the Company on the terms set out in the Offer of

Mortgage. Subject to any conditions to the contrary in

the Offer of Mortgage, the Borrower shall, pay interest

on the Amount Secured from the Advance Date and on

each Monthly Date shall pay the Monthly Payment

which shall comprise interest at the Rate

 

3.2 The Borrower will make the Monthly Payment to

the Company on each Monthly Date

 

3.6 Whenever any Monthly Payment (including interest

payable underthese Conditions) shall be in arrear for

more than 21 days the Company may (without

prejudice to its rights under Condition 8) at any time

enforce payment of any interest whether capitalised or

not under these Conditions"

 

My reading of this is that we should have made a payment on 31/8/01, the same day we received the advance and signed the legal charge? Of course, this seems slightly ridiculous, but it is there another way to inter prate their contract? It's also worth noting that I did not receive an arrears notice or summary until 2006, although they did levy charges from the first missed payment in 2002.

 

Thanks,

 

J

[orge]

Hi Andy,

 

No word from Barclays aside from a complaint about tardiness shortly after I submitted the documents to the court. I responded to this and sent them an electronic copy of the witness statement with a hard copy following the day afterwards.

 

I had a thorough look through the letters/statements at the weekend; it does seem like this might work and preserves around 50-60% of my claim. I presume it would still be valid to claim interest in restitution and this would still be classed as a mistake of law?

 

Do you agree with my interpretation of the T&C's above? This is backed up by the current balance on the mortgage account, as it seems like Barclays have brought me 2 payments ahead in the last year or 2.

 

If there is likely to be anything extra needed prior to the hearing on Wed 18th, I prob need to address it sooner rather than later. Unfortunately, it's going to be a busy week, as I have an offshore medical on Mon and builders at my house from 14-17th...

 

Thanks again for your help,

 

J

[Andyorch]

Have you not already claimed restitution it in your claim?

[orge]

Yes, it is in my claim. I was just clarifying it would still be applicable if we argued the charges should be refunded because Barclays had not fulfilled their duties under the CCA.

Thanks,

 

J

[Andyorch]

if the interest has been charged on the charges then yes.

[orge]

Yep, they charged interest on the arrears balance.

 

J

[orge]

If I am going to rely on this argument as a backup, do I need to submit an addition to my witness statement in advance?

[Andyorch]

Only if they make a response to your Witness statement and anything catches you out.

[orge]

ok. Will wait to hear (or not)!

 

J

[orge]

I've received an additional bundle of court documents from MAB.

 

The covering letter states:

"We refer to the upcoming hearing of the above claim.

We acknowledge receipt of your bundle, however, we note that this bundle contains none of the defendants documents or pleadings. On this basis we enclose an additional bundle for your reference.

Copy filed with the court."

 

Kinda odd, as there's little additional documentation (their witness statement is unchanged) and most of the contents are actually part of my bundle. I guess what they have submitted is a neat summation of both sides though.

 

I presume from this that they do intend to attend/defend at the hearing, so is there anything else that I need to do to prepare? I assume the judge won't be grilling me on my legal knowledge (well, I hope not!). However, are there any previous cases that have gone to court with similar characteristics to mine that I should look at? In terms of the legal principles involved, I'm fairly ok with the UTCCR and the limitation arguments, but I'm still a little unsure on the interest. Is this about right?

 

1. Defendent charged interest and profited from the unlawful charges

2. This allows me to apply the concept of restitution

3. Sempra Metals ruled that a compound rate of interest would be need for restitution.

4. The rate should reflect the banks opportunity to profit as anything else would result in unjust enrichment.

 

The only bit of this that doesn't quite make sense is that this last point, as the Sempra case example was ruled on the claimant's opportunity to profit from the funds, rather than the defendant's. This also tallies with my understandingt of restitution, as I think the primary intent is to restore balance to my own situation not to penalise the defendant?

 

Thanks,

 

J

[Andyorch]

[ATTACH=CONFIG]60228[/ATTACH]

[orge]

Thanks Andy, have had a read through.

 

Should I expect the judge to ask me questions about hardship/difficulties I may have suffered?

 

For me, the impact was that my mortgage payments were increased to cover the additional charges/interest. This was at a time that I was already struggling to make the payments. Indeed, the bank ultimately obtained a suspended repossession order on my home, although the arrears have since been cleared. In hindsght, maybe I should have mentioned the suspended repossession in my statement?

 

Ta,

 

J

[Andyorch]

Well you can always raise that verbally along with hardship that it caused.i really cant predict what will be asked orge...if only

[orge]

Just to let you know that Barclays have just told me they won't be attending the hearing tomorrow and will purely be relying on their witness statement.

 

J

[Andyorch]

Time to brush up on.......

 

Notice of intention to rely on hearsay evidence

 

CPR 33.2

[orge]

Ok. Will check that out tonight.

 

They've just sent me a very low offer to settle (charges less than 6 years, no interest) with "each party to vacate the hearing and bear their own costs". There is also a statement of costs for around £750, which I am guessing they have filed with the court. Are they suggesting they will be trying to pass this onto me if the hearing goes ahead and I "lose"?

 

J

[Andyorch]

Afraid so...all parties must file and serve their Costs before hearing....so you need to take that into account on top of their offer.

[orge]

I was under the impression that costs in small claims were limited?

Under what circumstances would a judge award costs against me? Would it only be if there was no basis at all for the claim in his opinion?

 

J

[orge]

Also, what about this:

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27#27.9

 

They haven't complied with point 27.9b by giving me notice today.

 

J

[Andyorch]

I was under the impression that costs in small claims were limited? They are to a point

Under what circumstances would a judge award costs against me? Would it only be if there was no basis at all for the claim in his opinion? Possibly and down to which DJ you get and if he considers the claim vexatious.

 

J

 

Also, what about this:

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27#27.9

 

They haven't complied with point 27.9b by giving me notice today.

 

J

 

(b) has served on the other party at least 7 days before the hearing date any other documents which he has filed with the court; and

 

Are there any other documents?

[orge]

Oops, I meant 27.9.1a, as they haven't given myself and (presumably) the court 7 days notice they are not going to attend the hearing.

 

There are no new documents.

 

j

[Andyorch]

Oops, I meant 27.9.1a, as they haven't given myself and (presumably) the court 7 days notice they are not going to attend the hearing.

 

There are no new documents.

 

j

 

So only told..verbally no written notice...have you checked with the court they have been informed in writing?

[orge]

The costs they state are for a solicitors "hearing fee" and the I would expect the closest allowable expense would be this:

(d) expenses which a party or witness has reasonably incurred in travelling to and from a hearing or in staying away from home for the purposes of attending a hearing

(g) such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably; and

 

I would expect d is hard to argue if they don't turn up! So it's only if I am deemed to be unreasonable.

 

I'm just about to go and check the last bundle of documents sent through, but it doesn't seem that they have filed a notice with the court or myself prior to today as no record on the system with the court just now. Is it possible for a judge to ignore/overule the direction under part 27 if they haven't complied?

 

J

[Andyorch]

The costs they state are for a solicitors "hearing fee" and the I would expect the closest allowable expense would be this: Correct

(d) expenses which a party or witness has reasonably incurred in travelling to and from a hearing or in staying away from home for the purposes of attending a hearing

(g) such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably; and

 

I would expect d is hard to argue if they don't turn up! So it's only if I am deemed to be unreasonable. Correct

 

I'm just about to go and check the last bundle of documents sent through, but it doesn't seem that they have filed a notice with the court or myself prior to today as no record on the system with the court just now. Is it possible for a judge to ignore/overule the direction under part 27 if they haven't complied? Not if you push it and keep quoting it

 

J

 

Andy

[orge]

Ok.

 

I also notice that the last offer is not marked without prejudice. Is this because they intend to wheel this out as a a example of "unreasonableness"? How are offers of settlement disclosed to the court, as these are suppose to be kept out of the documents the judge sees initially.

 

What would be my best response to this last minute offer? If indeed I am better to respond rather than ignoring it?

 

J