Claim for GE money Mortgage fees *** Settled***

[Andyorch]

Take a look at Orge,s Particulars Martin in the following thread.....and the outcome.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?440434-Orge-Vs-Barclays-Woolwich-Arrears-Charges

[martin2006]

Thanks Andy

I have read and re read orge's thread and my claim here would be different for a number of reasons, i need some time to notarise the differences and any alterations to the POC but will post up as soon as i can get some quiet time to do it, weekends are always busier for me!

[martin2006]

I'm Quite happy that i havent yet issued the claim, although i have the statements i dont think this will be enough on its own, so , the plan now is to SAR GE and get as much info as i can re the mortgage.

 

Forewarned is forearmed and i do not want to be at a disadvantage because i didnt bother getting all the information i needed in the first place.

 

SAR drafted and ready to go first thing in the morning.

[martin2006]

So, while i'm waiting on the SAR, what do the team think is the better approach, FOS or Court claim?

 

Fos instructed the likes of GE, Swift, Kensington etc to refund all these charges back in 2010, generally, not just mine

[martin2006]

Please could you have a look at the POC, need to get this claim started

poc - Copy.pdf

[Andyorch]

Fine Martin:-)

[martin2006]

So annoyed, Black ink just ran out halfway through printing

[Andyorch]

So annoyed, Black ink just ran out halfway through printing

 

Hope its not an omen

[martin2006]

Partners kids were here at weekend, i guess they were printing all sorts of rubbish

 

Tesco only round the corner, off to town tomorrow with it as i am enclosing an EX160

 

N1 done

EX160 done

Proof of benefits sorted

Spreadsheet updated and ready

[Hadituptohere]

Would love to see what you receive from GE for your SAR.. Ive just had a response to mine and theve sent a DSAR reply stating they are only required by law to send Details of personal data being processed and a Description of personal data, very poor response only about 30 pages for a mortgage thats been running for 10 years and now been sold on to Kensington.

 

Hadituptohere

[martin2006]

Would love to see what you receive from GE for your SAR.. Ive just had a response to mine and theve sent a DSAR reply stating they are only required by law to send Details of personal data being processed and a Description of personal data, very poor response only about 30 pages for a mortgage thats been running for 10 years and now been sold on to Kensington.

 

Hadituptohere

 

I'm not too fussed. i already have all the statements, i rang them and politely asked, they sent them within a week, free too

[martin2006]

Andy,

 

As i have to go into manchester to file due to the EX160, do you know if i go to the civil justice center where the county court is or do i need to go to salford ccmcc?

[Andyorch]

No not the civil justice center...post it all including the EX160 to Salford

 

Salford Business Centre

PO Box 527

Salford

M5 0BY

 

For email enquiries: ccmcccustomerenquiries@hmcts.gsi.gov.uk

For e-filing enquiries: ccmcce-filing@hmcts.gsi.gov.uk

[martin2006]

Ahh result, saves me a trek, just the n1 and ex160?

[Andyorch]

Ahh result, saves me a trek, just the n1 and ex160?

 

Yes martin

[martin2006]

For readers info if using EX160.

 

You will also need to send proof of benefit which is not more than 1 month old

[Andyorch]

For readers info if using EX160.

 

You will also need to send proof of benefit which is not more than 1 month old

 

Always been the case martin...one change which is a worthy note...if an error is found within the application..you wont have to restart again..it will run from the initial date of application.

[martin2006]

Its done and posted...........Let the games begin

[martin2006]

So, the claim was issued on April 1st by ccmcc, they have till 19th to reply

 

Sadly i cant monitor on MCOL and will have to rely on ringing and letters

[martin2006]

Defence received from everpests, will redact and post a little later, looks like standard stuff

[martin2006]

Here's the defence from GE:

 

1. The particulars of claim are inadequately pleaded and largely unparticularised. In the circumstances, the defendant reserves the right to amend this defence in the event the the PoC are further substantiated or if relevant information regarding this claim becomes available in the future.

 

2. References to paragraph numbers in this defence refer to the corresponding paragraphs of the PoC, unless otherwise stated. The defendant adopts the abbreviations used in the PoC, unless otherwise stated.

 

3. The defendant entered into a mortgage agreement with the claimant and Mrs xxxxxxx xxxxxxxx for the sum of £xxxxxxxx ("the advance") in or around 30 may 2007 for a term of 22 years on a repayment basis. The advance consisted of £xxxxxxxx plus legal and completion costs. The advance was then secured against xxxxxxxxxxxxxxxxxx ("the property"). The mortgage agreement between the defendant, the claimant and Mrs xxxxxx, included a mortgage deed, terms and conditions together with the Tariff of Charges which are annexed and marked pgs 1-11.

 

4. In accordance with the terms of the mortgage the claimant and Mrs xxxxxxxxx xxxxxxxxxxx were to make monthly payments of £xxx.xx, subject to changes in accordance with the t's and c's of the mortgage. The claimant and Mrs xxxxx defaulted on monthly payments on a number of occasions during the life of the mortgage agreement. In accordance with clause 18 of the t's & c's of the mortgage agreement, the defendant added all legal and other charges and expenses to the mortgage account when incurring costs in remedying failures by the claimant and Mrs xxxxx in fulfilling their obligations under the mortgage.

 

5. It is noted that Mrs xxxxxx is not named as a party to the claim. The claimant is referred to the provisions of CPR 19.3, insofar as the claimant seeks any remedy to which Mrs xxxxx may be jointly entitled.

 

6. In respect of para 1, it is admitted by the defendant that it entered into a mortgage agreement with the claimant and Mrs xxxxx for the sum of £xxxxx.xx and that the mortgage was assigned account number xxxxxxx ("the mortgage"). The mortgage was redeemed on or around 11 april 2014. A full statement for the account is annexed to the defence and marked pgs 12-32.

 

7. In respect to para 2, it is denied that the terms of the mortgage agreement could be considered unfair pursuant to UTCCR 1999.

 

8. In respect to para 3, it is denied that the defendant is statutorily bound by the FSA. The FSA was dissolved in April 2013. The defendant is regulated by the FCA and is governed by the FCA and the mortgage code of business rules (mcob).

 

9. In respect to para 4, it is admitted that the claimant fell into arrears as a consequence of failing to maintain payments required by the mortgage agreement.

 

10. In respect to para 5 and 6, it is not admitted that the defendant levied fees or further interest on the same and the claimant is put to strict proof. As stated in para 4 of thr defence, the defendant added legal and other charges to the mortgage account when incurring the costs in remedying failures by the claimant and Mrs xxxxxxxx in fulfilling their obligations under the mortgage agreement, seeking payment of any monies due but unpaid by them and costs incurred in enforcing the mortgage.

 

11. In relation to para 7, it is denied that any fees, charges or additional interest which were added to the mortgage balance exceeded their administrative costs, were not a genuine pre estimate or were a penalty. The defendant will say as follows:

 

11.1 The defendant refers to its Tariff of Fees and charges referred to in para 3 of this defence. The defendant avers that the relevant fees, charges and additional interest are compliant with the requirements of MCOB 12.4.1 in that they are either equal or lower than a reasonable calculation of the costs required in remedying failures by the claimant and Mrs xxxxxxxx in fulfilling their obligations under the mortgage;

 

11.2 At common law, the relevant test as set out on the cases of " cavendish square holdings BV v El Makedessi" and "Parkingeye limited v Beavis" 4 november 2015, state that a clause will be considered a penalty it it "imposes a detriment on the contract breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of thr primary obligation". It is denied that the charges fail this test.

 

12. In respect of para 8:

 

13. The claimant alleges that the fees and charges added to the account were unlawful pursuant to the UTCCR 1999. Notwithstanding that the claimant has not particularised the provisions of the 1999 regulations relied on, or any basis for the allegation, the allegation is denied.

 

13.1 The contractual terms and conditions entitling the defendant to add the fees and charges do not fall foe assessment for unfairness under the 1999 regs, by virtue of reg 6, as any assessment would relate to the definition of the main subject of the contract and/or the adequacy of the price or remuneration, as against the goods or services supplied.

 

13.2 Without prejudice to the above, it is denied that the fees and charges and/or the terms and conditions of the agreement giving rise to the fees and charges, were unfair and/or contrary to the requirement of good faith caused a significant imbalance in the parties' rights and obligations arising under the agreement to the detriment of the claimant and Mrs xxxxxxxx.

 

14. In respect to para 9, the claimant has not particularised what alleged unfair treatment he has suffered by the defendant or how the defendant is alleged to have breached its obligations in respect to MCOB rules. In the absence of doubt, such allegations are not admitted and the claimant is put to strict proof in respect of the same.

 

15. In respect of paragraph 10, it is denied that:

 

15.1 The claimant has particularised any basis or provided any legal nexus to show that he is entitled to a refund of any fees, charges or additional interest applied to the mortgage account or that the same are unlawful or unfair;

 

15.2 The claimant is entitled to statutory interest.

 

16. Save as expressly admitted or denied in the defence, the allegations contained in the particulars of claim are not admitted and the claimant is put to strict proof

 

 

The defendant believes the facts stated in this defence are true.

 

 

 

 

Any opinions?, looks like a standard defence with reference to the 2 cases noted, will have a look at those

poc - Copy.pdf

Edited April 28, 2016 by martin2006

[BarryWat]

Hi Martin2006,

 

Their response looks remarkably similar to the one I received from them recently, obviously a few differences as your claim varies a bit from mine, but the gist is the same.

 

I'm a bit further on than you as we've had 2 possession hearings (yes they're going for possession based on the charges, mortgage was paid off June 2015) I've filed defence and counterclaim with the help of a friendly solicitor. They first claimed my defence and counterclaim were faulty, they were Ok, it was just them using the wrong defence copy, sent them a draft copy unsigned, filed the correct one through the court.

 

They asked for the case to be stayed for 2 months to give time to reach a solution, which I agreed to.

 

They have now made an initial without prejudice offer to remove the fees and charges from their claim. I rejected this as they were still claiming the rest of the balance which is made up on the whole of interest added to the charges, so basically the ball is back in their court.

 

As several people on here have said, they will wriggle and squirm, just hang in there.

 

Good luck

BW

Edited April 29, 2016 by BarryWat

[martin2006]

Thanks Barry, keep it going and keep us all posted of developments. It helps other users immensely

[martin2006]

Quick question for Andyorch, in para 5 of ge defence, the sol refers to cpr 19.3 as the ex is not party to the claim but is entitled to 50 % of any settlement.

 

Is there any relevance that i should get clued up on?

[Andyorch]

CPR 19.3 as I am sure you are aware of Martin is with regards to joint agreements and whether they wish to be part of the proceedings.

 

Provisions applicable where two or more persons are jointly entitled to a remedy

19.3

(1) Where a claimant claims a remedy to which some other person is jointly entitled with him, all persons jointly entitled to the remedy must be parties unless the court orders otherwise.

(2) If any person does not agree to be a claimant, he must be made a defendant, unless the court orders otherwise.

(3) This rule does not apply in probate proceedings.

 

But you take a look at (2)..there are ways around it.

 

Regards

 

Andy