Me V Swift

[mrsfoot]

Zoot, any comments or ideas?

[mrsfoot]

Letter has been sent into DJ to ask for disclosure on actual figures, during a phone call to court today the Judge has the letter in fromt of him today and will make the decision on the order.

I suggest all cases now follow the advie and get disclosure. Remember unless it is diclosed neither of you ccan use it at the trial!

[mrsfoot]

Have had response from DJ re letter. He know wants a formal application. Not sure why the clerk did not tell me this in first place

 

However I am going to email Swift sols and tell them what I am asking for....and offer to accept an out of court settlement...any thoughts??

[alanfromderby]

They court did exactly the same with me - very frustrating!

 

Certainly I would follow through to ask the Judge to make a Part 18 order. In your approach to Swift's solicitors I would remind them of the responsibility placed on both parties to avoid the necessity of having to go to trial.

 

Clearly the information requested under Part 18 will be pivotal to the case, and by the defendant not providing this you will not be in a position to properly analyse it prior to any trial. This will cause a severe imbalance in the footing of the parties, and goes against the overriding objectives, in particular CPR 1.1(2)(a).

 

Worth a try!

[mrsfoot]

Thanks Alan, i have emailed them with more or less exactly what you have suggested lol

 

Its very frustrating, especially when they mentioned they objected to orignal part 18 because it would be in witness statement and then it wasnt there!!!

I ahev worked closesly with another swiftie who mentioned they relyed on an audit report identifying that the financial dept was self funding, although they had not declared this and it was not shown in court. The judge just took theor word for it so i have requested that be dicslosed, along with other items Zoot hilighted in a post shoing their witness statment. Heres hoping i get what i want.

 

Starting to feel bit nervous about the whole fight to be honest, with all ERC being shot down at present, although mine is not ERC im still jittery!

[Barry Paul]

Hi Mrs F

 

In the witness statement from Mark White paragraph 25 is the bit about the reviews that Swift make of the "Credit Control Function" & the statement that the costs of running that department is in parity with the income from the charges.

This is the very point I lost my case on, because the judge had to believe that statement from Mark White as he was under oath.

But if I had of had an application for a CPR Part 18 request already submitted then the judge would of made it an order an I would of won.

 

Make sure you've got that in & make sure you tell swift that you know I lost because I didn't.

 

Barry

[alanfromderby]

Starting to feel bit nervous about the whole fight to be honest, with all ERC being shot down at present, although mine is not ERC im still jittery!

 

With claims that have ordinary charges, it should not be a problem to pursue the ERC part as well. If nothing else, it can be used as a bargaining chip later in the process.

 

The danger would come if they agreed to settle the charges part of your claim, but fight the ERC. At that point you would need to review your position - but until they start to talk realistic settlement figures you are on well trodden ground.

[zootscoot]

Charges are not as clear cut as people may believe. Please read:

 

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/62003-important-mortgage-claimants-please.html

[mrsfoot]

I am not claiming ERC, only charges for late payments etc. Is it still better to withdraw?

[gooner73]

Hi Mrs Foot.

 

Keep going! I am right behind you with my case and watching with interest!

 

It seems that the problems so far with ERC's are to do with proving that the ERC's are a penalty for breaching the contract. This isn't an issue with our case for charges against swift. Luckily I hadn't mentioned the ERC and at the moment I am keeping it that way!

 

What we have to prove in our case is that they make a profit from the credit control function by charging such high penalty charges. Barry has proved that it should be quite easy to shoot down their witness in court even for novices like us.

 

They admit in their witness statement that they carry out analysis of income received and expenses incurred from the credit control function. Unfortunately Barry didn't issue a part 18 request for them to disclose this information therefore the judge in his case had to accept the statement from their witness that the credit control function didn't make a profit.

 

If we can get the judge to order them to disclose this information we assume that this will show that they do in fact make a profit and will provide the evidence to allow the judge to rule in our favour. If they fail to comply with a court order to disclose the information then we can apply to have the defence struck out.

 

Hang in there!

[alanfromderby]

One area that you will need to investigate is the level of automation. The disclosure I had from Bristol & West seemed to indicate that they have a computerised case log system.

 

This system automatically scans account activity against a criteria for intervention. The system will them make AUTOMATED decisions about whether to send out a letter, and which letter to send, or whether a case needs to be flagged up for a telephone call, or moved on to the collections department.

 

It is only when cases have moved to collections that some manual actions take place. HOWEVER, that does not mean a person is manually going through the file, and making individual decisions - they are merely responding to on-screen prompts.

 

Genuine manual intervention only seems to come where a file is moved to litigation - and only then where court action is imminent.

 

I posted this point elsewhere some time ago, and it was subsequently confirmed by someone who works within another company.

[mrsfoot]

Quick update

Request for further info disagreed with by Solicitors on the basis that I wanted this case to be heard in small claims and therefore the info i have requested is excessive and disproprtionate! they are insisting i can cross examine the witness on the day for further info and i will be given information for legal bills added to the account.

So now the Judge is presently making directions with regards to CPR part 18 request as of 8 days ago. Should hear something later today or tomorrow.

This is a list of what I requested:

*True copies of solicitors bills in relation to all actions completed on the account

*Thorough explanation, detailed accounts and process of arriving at the figures for the collection charges applied to the account

*Where the charge is purely an administration fee applied under the terms & conditions of the mortgage, I request that you provide certified details of how this charge was set, and the calculations used in the process of arriving at this figure including that fee relevant to page 7 item 22 of Mark White Witness Statement.

*Full and detailed explanation of letter producton and its relevant charges of between £35 and £100 per letter to include time spent and hourly rate of admn staff in relation to letter writing.

*Confirmation that letters are pre written and saved in library type system on computers. Solicitor has writen to say some letters are automated!!

*Details of the process between in house solicitors and administration. *How is access of the account gained? What adminitration action takes place when Solicitors already have full access to the system?

*The system AUDDIS runs through the company, so how are the administration charges set, what data is used to set the charge? Detailed accounts of manual administration work on the account to be provided.

*Process that is followed to check files.

*Evidence of file reviews and notes written between members of staff as reported in witness statment page page 7 section22 continuing on page 8.

*Evidence of bank charges for the charges Swift incurred through returned payments as in witness statement page 6 section 20 and 22 on page 8.

*Audit report based on self financing dept of credit control. Evidence that the charges applied to accounts do not unduly enrich the Defendant or do indeed cover the costs of running the department.

 

With regards to Barrypauls comments i have asked the Judge for the report they used verbally against you, I still believe they wont give it to me, however I have asked for disclosure so hopefully this will go for me if they refuse to show it. I am half hoping they continue to ignore the request for it then try use it in court or even better they deny any such report exists (but that is just big hopes lol)

 

Have emailed Solicitor with response to comments on small claims and initiated another effort at settling this out of court with regards to overriding objectives in particular 1.1 (2)(a) Thanks got to Alan for that info!

 

Quick query...in directions from allocation hearing it states defendant must send bundle to court not less than 7 days before trial, yet there is nothing about me sending mine or me receiving defendants bundle? Any thoughts??

[alanfromderby]

You seem to have things well in hand - with regard to your last point, I would ring the court for clarification.

[mrsfoot]

Judge refused to make the order, on the grounds it was excessive for the case and that the majority of info i requested is in the witness statement. However there is no breakdown, no solicitors invoices etc......god how can they say there is justice when you cant even get on an even keel!

 

Totally cheesed off with this and feel like they can keep the bloody lot as it seems that the judge has already shown the colours of all the judgements that will be made on this case anyway

 

oh and dont need to do a bundle for the court or defendants according to the order and the court today. Makes me wonder whether I will even get a fair hearing if the court has the defendants info and not mine???

[Bona]

Who were the Solictors write direct to them and ask for the information on their bills under the Solictors Act as you are the paying party ask for it in 7 days and see what comes back i

[kennyh]

Hey Mrsfoot, apropos nothing; you can take this lot- you're better than they think AND you've got the backing!

[mrsfoot]

Thanks. Where is that information from Bona if you dont mind me asking?

 

Thanks Kennyh been going through the transactions list with gusto this afternoon and have found some flaws in their argument so feel a litle better as we speak lol

[Bona]

My Solictor told me he asked for information from the solicitors quoting that they came back with copies of there breakdown of their bills it was quiet enlightning we then asked for further information they kept delaying and so we made an application the judge ordered their costs to be assessed, this can be expensive but you need not go that far just ask them for a brekdown of their costs to which " as the paying party you are entitled to " if they dont or wont report them to the Law socierty you have nothing to loose

[mrsfoot]

Thanks Bona, that will be a real help. If nothing else it will act as a bargaining tool. Will it matter that it is the same solicitors who are defending them now though?

[alanfromderby]

I am going to seek further advice on this as it does seem extremely odd. Will try and get back to you tomorrow.

[mrsfoot]

Thanks Alan.

 

Got advice re the Solicitors Act and requesting litigation bills and because it was defendants who employed the solicitors and then charged my account for them I am not entitled to see the bill / ask for certification. But thanks anyway Bona, it was worth a try.

[Bona]

Dosnt follow we were the defendants in a county court case we won but they had our coststaxed as they were the paying party and we did not get them all

Bona

[gizmo111]

Thanks Alan.

 

Got advice re the Solicitors Act and requesting litigation bills and because it was defendants who employed the solicitors and then charged my account for them I am not entitled to see the bill / ask for certification. But thanks anyway Bona, it was worth a try.

 

See here on other sides costs - http://www.consumeractiongroup.co.uk/forum/post-566048.html the only option left is a costs draughtsperson whio is expensive.

[mrsfoot]

Question guys....Swift saying they charge fees as they are sub prime lenders who deal with ppl with bad credit etc. Is it a strong argument for this point if i identify the fact that they were charging 8.28% Bank of Eng 4.25% (at the date of start contract) therefore earning more for their £ already in profit??

 

Not sure if i have explained correctly but hope u know what i mean lol

[HAIRYLADDER]

Hi

 

I think I may have made this point before. If you ask Swift why they charged you such a high rate and not in line with those charged by the high street lenders I'm sure that they will say that this is because they are taking a risk lending money to people with poor credit history as it covers the risk that you may default on the payments, this suggests that they have already priced for the possibility that you may not make your payments. You can then ask, but only when you have a statement from Swift confirming why it prices its mortgages in this way, if that is the case how can you make additional charges on non-payment?

 

If you don't get the statement you require you'll probably have to ask Swift outright. If you ask outright at the outset Swift will deny that its pricing coervs the risk of default. The idea here is to try to ambush Swift

 

regards