Jacqueline07 v Dudley Building Society **Lost in court -charges - no costs**

[Jacqueline07]

Have started my claim with the Dudley for a mortgage held in 2000. Asked for £120.00 in charges by way of Prelim and LBA. Filed in October and have received a copy of their defence as follows:

 

"1. It is accepted that the Claimant entered jointly with Mr XXX into a Mortgage with the defendant on 21/07/2000 Account No. xxxxxxx

 

2. The Claimant was to the Defendant's knowledge and belief given by her Solicitors copies of the Defendant's Mortgage conditions and Rules which set out conditions for making payments and the basis on which charges and interest will be charged should the Claimant have defaulted on payments.

 

3. On the 22nd July 2000 the Claimant was sent a Direct Debit Instruction informing her that she should ensure her account is in funds and that an administration fee will be charged should the direct debit not be paid.

 

4. The Claimant then breached her contract by failing to ensure that she had enough funds available in her account.

 

5. The Defendant wrote on each occasion to the Claimant informing her of the rejection and informing her of the charge made. These charges are sent to members on an annual basis as direct debit failures cause administrative work for the Society with both Finance and Arrears Departments. At no time did the Claimant question these charges. To date she has not followed the Society's Complaints Procedure, nor has she contacted the Building Society's Ombudsman to question the charges.

 

6. The Defendant therefore maintains it was able to make the charges and was not in breach of the Acts as claimed by the Claimant.

 

7. In the premises it is denied that any sums as pleaded or at all are due to the Claimant."

 

This has been sent to me by the Dudley's solicitors - the claim was for £120.00 originally.

 

Having read through the defence, I do not think that they have addressed the real issues - so am filling in the AQ today - am I in order if I send an attachment to the court disputing the defence?

 

Any comments on the above would be most appreciated.

 

Jackie

[ellemmjay]

Hi Jackie

 

Hope this claim is far quicker for you than the Abbey - any news on that yet ?

 

I'm chasing Abbey for charges on an old mortgage account - I must have done somethin very bad in a former life !!!

 

 

Elle

[Jacqueline07]

Hi Elle

 

My Abbey claim isn't settled yet!!! Court date now for 31/01 - it seems they are settling the ones with imminent court dates - so I guess I'm just going to have to wait a bit longer. I'm not finished with Abbey yet - I had an old mortgage account with them as well - but one thing at a time . Did you read my first post - I don't believe that is anything meaty in the defence and am tempted to write a letter to the judge with my AQ to this effect that they haven't addressed the issue of disclosing their calculations.

 

Good Luck with yours.

 

Jackie

[Jacqueline07]

Received this today:

 

"Request for further information under CPR Rule 18(1)

 

1a. Paragraph 4a the Claimant contends that the charges debited to her account are "not a genuine pre-estimate of costs incurred by the Defendant". Please confirm in what way the Claimant feels they are not genuine.

 

1b. The Claimant maintains "they exceed any alleged actual loss to the Defendant" Please detail how you calculate that they exceed actual loss to the Defendant.

 

2. The Claimant maintains "the contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of the unfair contract terms in Consumer Contract Regulations (1999) The Unfair Contract Terms Act 1977 of the common law". Please set out detailing the relevant section of these acts and how they apply to the charges leved by the Building Society showing that they are unenforceable."

 

The solicitor has given me 21 days to answer these. Will be looking around for answers but any thoughts on the above would be most appreciated. Also on the AQ they have asked that the case is transferred to the one local to the BS. I can object to this can't I?

 

Many thanks

Jackie

[Jacqueline07]

**bump** anyone - I would really appreciate any thoughts

[ellemmjay]

Jackie,

 

Don't know if what I say will be correct but if it was me having to respond I would be tempted to suggest that the onus is on the building society to justify their charges.

 

In response to 1a I would use the argument that they charges are disproportionate to the actual costs incurred and as such are a penalty, if DBS want to argue the charges they have made let them justify them.

 

1b. I think this is just more of the same - they've charged you for failing to pay a direct debit - the additional costs involved are disproportionate to the additional work incurred as a result of this ( computer generated letters , cost of admin etc etc ).

 

Let me think about the last one or hopefully someone else with more experience will come along to help.

 

Thinkthis is just them being awkward asper usual and they certainly won't want to disclose their costs

 

 

Good Luck

 

 

Elle

 

Elle

[gizmo111]

Isthis for a total of £120?

Below are extracts of letters used for bank/credit card claims.

CPR part 18 request

I am not prepared, at this stage, to answer the CPR Part 18 Request. I anticipate that the claim will be allocated to the small claims track and would not then expect to have to deal with a Part 18 request since these are specifically excluded under Part 27 unless the court specifically orders me to do so of its own initiative.

 

Furthermore I consider that the CPR part 18 request is intimidatory and I intend to bring the intimidation to the notice of the court.

Change of court

I refer to the defendants allocation questionnaire of which I received a copy form the court October 25, in which the defendant has made a request for the hearing of this case to be moved to Salford County Court.

I wish to object to the application for transfer on the following grounds.

1. The defendant’s application was made without notice to myself and I have not been given the opportunity to make representations.

2. I am an individual of limited means. I am a litigant in person and I am suing the defendant on my own account.

3. The defendant is a national company with access to huge financial resources whilst my finances are strictly limited.

4. Although the place of trial is at the discretion of the Court the normal and established practice is for the claims in which one of the parties is an individual, be transferred to that individual’s home court. In this case my home court is Bristol County Court.

Order 26 to which the defendant refers to in thier application, normally is applied for the benefit of a claimant who is claiming as an individual.

The defendant refers to recent findings by the Office of Fair Trading, however it is clear that the Office of Fair Trading conclusions indicate very strongly that companies such as the defendant are acting in violation of the unfair terms in consumer contracts regulations. And therefore as the defendant continues its system of penalty charges in the face of the Office of Fair Trading report it is they who should justly face the burden of costs and not claimants in person who are merely seeking to enforce the law.

It is not in the interest Overriding Objective for my case to be tried in a court other than my home court of Bristol County Court.

Furthermore the question we are deciding is the lawfulness of the defendant's penalty charge system. The defendant claims that their evidence is" commercially sensitive". However the question of the defendant's penalty charge regime does not refer to their core business. Whilst it could well be the case that information relating to the defendants core business could indeed be commercially sensitive, the question of penalty charges relates to an incidental aspect of the defendant's business -- and which if the defendant is to be believed, produces no profit at all as according to the defendant, their penalty charges merely cover their administrative costs. It is also true to say that the defendant has in the past claimed that their costs are merely in line with those of other similar organisations. Clearly then, the defendant's penalty charge regime is not a competitive matter, according to the defendant it brings them no profit and therefore there can be no grounds for saying that the information is commercially sensitive.

If the defendant is insistent that his evidence is commercially sensitive then I would respectfully suggest that maybe this entire matter is better suited for a higher court such as the mercantile court in London or Bristol.

Yours faithfully

 

 

 

[Jacqueline07]

Gizmo - you're a star - thank you.

 

Yes this claim is for a total of £120 (£200 ish with interest). They've hired a solicitor to deal with it!!!

 

Opened the letter and got the impression that they are trying to intimidate me with this - however I will treat this with the same significance as my Abbey claim (which is for an awful lot more).

 

Once again Gizmo and Elle thank you for your replies.

 

Jackie

[Jacqueline07]

BTW - should I send a copy of this response to the court at this stage?

[gizmo111]

Send the CPR back to them and the objection to the court - I have one for this lot that I reckon could be about £2k - what fun to look forward to!

[Jacqueline07]

Gizmo - thanks again. They have dealt with this extremely quickly as far as the Prelim and LBA goes - but won't budge. I can't for the life of me understand why they are employing a solicitor for the sake of £200. Maybe they think they have principles - will let you know how it goes.

 

Jackie

[gizmo111]

Gizmo - thanks again. They have dealt with this extremely quickly as far as the Prelim and LBA goes - but won't budge. I can't for the life of me understand why they are employing a solicitor for the sake of £200. Maybe they think they have principles - will let you know how it goes.

 

Jackie

 

Maybe they are worried what the future may bring with an onslaught of claims!

[Jacqueline07]

Just typing out the letters from the advice given above. Can you tell me what "order 26" is? I like to know what I talking (typing) about. Many thanks

[gizmo111]

Order 26 I beleive is the legal basis that the defendant - in this case Citi used to have the case transferred to their home court. But it is only usually used for single claimants not companies - hopefully someone will come along and correct me if I am wrong.

[Jacqueline07]

Order received yesterday as follows:

 

"On Friday 15th December 2006 the papers in this claim were considered by District Judge XXX who allocated the claim to the small claims track to be heard at XXX, XXX on a date and at a time to be notified to you with a time estimate of two hours

 

The following directions apply to this claim:

 

1. Each party shall deliver to every other party and to the court office copies of all documents including skeleton arguments on which he intends to rely at the hearing.

 

2. The copies shall be delivered by 4pm on Friday 12th January 2007.

 

3. the original documents shall be brought to the hearing.

 

4. Signed statements setting out the evidence of all witnesses (including expert witnesses if permission has been given to use them) on whom each party intends to rely shall be prepared and copies included in the documents mentioned in paragraph 1. This includes the evidence of the parties themselves and of any other witnesses whether or not the witnesses are going to come to court to give evidence.

 

5. The court must be informed immediately if the case is settled by agreement before the hearing date."

 

With this came the notice of trial date for 2 May 2007.

 

Although the trial date is a long way off, the judge has asked for the documents quite quickly. He has also listened to my argument for it to remain at my local court. It also states on the notice that "parties are encouraged to endeavour to settle their dispute etc.

 

Looks like I'll be sorting my court bundle out over christmas, but I feel a settlement coming on!

 

Merry Christmas to you all - Jackie

[Jacqueline07]

Court Bundle and Witness Statement sent today by special delivery to their solicitors. Will hand deliver the court one tomorrow. Has to be in by 4.00 pm tomorrow - as of yet I haven't received a copy of theirs.

[Jacqueline07]

OK - with all that's going on at the moment - I am unsure how to continue with this. Claim is for £120 only (late payment fees) with this building society. Bundles have been submitted by both parties - there was nothing much in their's apart from terms and conditions and a lot of other bumph. The order from the judge encourages settlement before the court date which is in May. I'm of a mind to contact their solicitor and attempt settlement. Don't want to be held for their costs for the sake of £120.00 + interest. Any thoughts. Thank Jackie

[Jacqueline07]

Oh - and its also been allocated to small claims track.

[Jacqueline07]

OK - E-mailed their solicitor last week attempting settlement (judges order urged settlement).

 

Letter received today:

 

"With ref. to the above matter and further to your recent e-mail we are instructed to write to you to point out that as we are sure you are aware from the recent publicity in the Press about bank charges, the majority of the cases and the case law applies to current accounts held with banks or Plcs such as Halifax or Abbey. The case law does not apply where mortgage accounts are concerned.

 

Our clients therefore are prepared if you discontinue your claim not to make any claim against you for costs in this matter. Whilst they would not be able to claim our costs for being involved in it, they do intend to attend the hearing in person and will be entitled to costs for attending that hearing.

 

We look forward to hearing from you when you have had an opportunity to consider the matter."

 

I don't know what to do now - call their bluff - I don't believe their statement to be true - but this is £120 - is it really worth it - or does the statement about costs cushion my blow a bit.

 

Thoughts would be appreciated.

Jackie

[Jacqueline07]

Outrageous bumpity bump please

 

Having thought about this - I am minded to tell them where to go. I think that they are calling my bluff. If, as they state, all they will be claiming is costs for the day in court, I think I'm prepared to stand that. They have done nothing but try to intimidate me since the beginning.

 

I know that this is only for £120 + costs but their attitude has been terrible all the way along - another win for the mortgages side would be nice wouldn't it?

 

J

[mochamoo]

Not sure, but seeings as you appear to be chatting with yourself I thought I would give you a little

 

^^bump^^

[zootscoot]

Hi Jaqueline,

 

Yes you would only be liable for their costs of attending... assuming you lose. However, it does not appear they have shown any real attempt at defending given their flimsy bundle. I would imagine they will pay out soon.

 

Best of luck

 

Zoot

[Jacqueline07]

Thank you for the replies - my gut feeling is to carry on - I'm going to draft a response to send next week. Now I can't put it off any longer - I'm off to clear out the garage ............:o

 

Jackie

[mochamoo]

Good luck with the claim (and the garage!)

[Jacqueline07]

OK - am going to e-mail today.

 

Just some clarification points on letters that to and fro between.

 

My original e-mail about settlement was not marked "without prejudice".

 

Their response (by posted letter) was marked "Without prejudice save as to costs".

 

My e-mail to them today will not be marked

 

Which can I take to court - my first letter only, I'm thinking as my latest e-mail will be a response to their Without Prejudice letter???