Sandy V GMAC - RFC ***SETTLED IN FULL***

[Robertxc]

So...at the end of it all, GMAC are in a much worse position than when they started. For them, the the whole point of having it moved out of small claims was to make you very wary of the potential cost involved if you lose (i.e., tens of thousands of pounds). this would be enough to put a lot of people off altogether. instead, the judge has ordered that it gets shifted without the possibility of you having to pay costs, which means that GMAC now have the worst of both worlds - full disclosure, with no possibility of recovering their costs. Nice one!

[ukaviator]

Hi Team.

 

When and if they carry this on, 'Full Disclosure' would have to be presented.They can't have the supporting paperwork to justify the amount you have paid.If they do it will be a small fee,if any at all.Can't wait for the outcome.I think they will settle very soon.I am in a simular situation and expect that maybe coming my way too.Birmingham Midshires are, i think a little easier to crack though.But i am preparing for the day.

 

Good luck

 

Ukaviator

[caro]

Well done for holding your own against them. You have certainly turned the tables on them now.

[zootscoot]

Yes nice one Jssandy!

 

The balls in your court now.

 

Also worthy of note, if they now need all this time to do their calculations.... how can they argue it was a genuine pre- estimate?

 

Well done you!

[sutee50]

Hi Sandy

Just got on to your GMAC thread. Can't read it all now as only allocated 1 hr in library but copied and read later at home.

I'm thrilled that someone is taking this bullying mob to task. :grin: I also would like to do the same, as they are charging my £50 per month whilst I am behind, plus £? for not doing DD - would be stupid if it got me into deeper water with Abbey, wouldn't it? (See signature for Abbey progress)

All the best and looking forward to joining you shortly.

[jssandy01]

update:

have now received notification from Tunbridge wells county court as follows:

 

It is odered that:

1. Subject to the consent of the mayors & City court the matter be transferred to that court and placed before a District Judge of that court forthwith upon transfer for further directions.

2. In the event the matter is not transfered the following directions should apply

a) Each party shall exchange copies of any documents on which they propose to rely by 4pm on 3rd November 2006

b) Each party shall serve on every other party the witness statements of the oral evidence on which the party serving the statement intends to rely in relation to any issues of fact to be decided at the trial . there shall be simultaneous exchange of such statements by 4pm on 24th November 2006.

c) The trial of this case will take place on first available date after 15 December 2006 with a time estimate of 4 hours together with reading time of 2 hours.

d) Defendants solicitors to file and serve an agreed trial bundle 5 days before the trial to include an agreed case summary and list of issues remaining in dispute and their skeleton argument

3. No order as to costs

 

Phew....Looks like going to mercatile and await confimation that consent is received if not full steam ahead in small claims.

 

What should I be doing in preparation anything?

[zootscoot]

Hi Sandy,

 

You need to be preparing your document bundle. See the link below.

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/33060-basic-court-bundle.html

 

All the best

 

Zoot

[jssandy01]

Update...

 

Notification from Tunbridge wells court that my case has been accepted and transferred to Mayors & City of London County Court!!!

 

What next!!

[zootscoot]

ohhh its getting exciting now!

 

Get your document bundle ready and have a good read through everything so that you are absolutely clear on the basis of your claim.

 

Then await directions from the London County Court.

 

All the best

 

Zoot

[lucaloo]

Good on you sandy, i have just sent prelim letter to GMAC! for £3k...will be watching this one closely....

[Guest mike grant-sinclair]

sandy how did your claim go as Iam now takeing gmac on as they repro me loan with 6000 costs and 2000 redempton charge.

[jssandy01]

Guys an update!!!

 

Received hearing date for 22nd November at Mayor & City of London County court...here we go....have to have bundle docs in by 14 days beforehand copied to all parties.

 

My case is 10.30am and quote 'is one of several that have been listed at that time'.

 

District Judge Trent has allocated claim to small claims track....assume this is good news as no costs!

 

ordered that...The parties are encouraged always to try to settle the case by negotiation. The parties are encouraged to contact each other with aview to trying to settle the case or narrow the issues....is this a normal statement or is the court urging settlement in advance?

 

Following directions apply...

 

Each party must deliver to every other party and to the court office copies of all documents on which that party intends to rely at the hearing no later than fourteen days before the hearing......assume this means bundle?

 

Is there anyone else on this site involved in this??? should we get together if so???

Any help appreciated to prepare

sandy

[a2bhire]

Sandy, Well done for getting this far and don't give up now. I absolutly hate GMAC and depending on your success I will definatly be following with the same.

 

Really Really Good Luck.

 

Its about time someone took them down a peg or two.

 

Mark

[Delboy01]

Just about to do GMAC, no longer with them thnk god

 

Can anyone send me the link for the previously mentioned "test case" going thro the courts?

[gizmo111]

Guys an update!!!

 

Received hearing date for 22nd November at Mayor & City of London County court...here we go....have to have bundle docs in by 14 days beforehand copied to all parties.

 

My case is 10.30am and quote 'is one of several that have been listed at that time'.

 

District Judge Trent has allocated claim to small claims track....assume this is good news as no costs!

 

ordered that...The parties are encouraged always to try to settle the case by negotiation. The parties are encouraged to contact each other with aview to trying to settle the case or narrow the issues....is this a normal statement or is the court urging settlement in advance?

 

Following directions apply...

 

Each party must deliver to every other party and to the court office copies of all documents on which that party intends to rely at the hearing no later than fourteen days before the hearing......assume this means bundle?

 

Is there anyone else on this site involved in this??? should we get together if so???

Any help appreciated to prepare

sandy

 

Bookworm put a suggested bundle in templates and I am sure zoot will help you prepare this if you bring it to her attention.

 

Good luck

[jssandy01]

Update...

 

Prepared bundle with Bookworms guidance. 14 day deadline is today. Posted bundle yesterday and received by court in time. Nothing from Eversheds, however. No surprise there. What happens if they miss deadline for documents? I sent a copy of my bundle to them and also in my letter suggested, as per judges order, that settlement be made to avoid court time. A little nudge may not hurt.

 

What I do want to know is who are the others on the same date? do the mods know of anyone or anyway of finding out?

 

Sandy

[jssandy01]

Had an email from GMAC solicitors having sent them bundle as per bookworms guidelines see reponse pasted below!

Strictly Private & Confidential

Without Prejudice

 

Dear Mr Scrudis,

 

Thank you for your e-mail.

 

Your Claim

 

I note your reference to your bundle of documents and your comment that you are fully prepared for the Hearing on 22 November 2006. I have perused your bundle. While you have enclosed copies of various statutory sections, unfortunately, I cannot see that you have enclosed any actual evidence relating to the issues in dispute.

 

For example, you have not provided any evidence to support your assertion that the charges disputed are a penalty, rather than than compensatory in nature. On this issue, it is not clear to me whether or not you accept that GMAC will have incurred costs, for which it is liable to be compensated, as a result of your repeated failure to make payments on time and as a result of returned/dishonoured Direct Debit and cheque payments.

 

In this respect, I refer you to the OFT statement of 5 April 2006 to which you refer. The OFT states:-

 

"in general terms a default charge may include postage and stationary costs, and also a proportionate share of the costs of employing staff and of maintaining premises and IT systems in order to deal with defaults of the same kind".

 

The conclusion to be drawn from the OFT statement, in as far as it may be argued that the OFT statement has any relevance to mortgage accounts (see below) is that GMAC is entitled to make charges in respect of its costs in any event. Neither the common law or the Unfair Terms in Consumer Contracts Regulations will prevent GMAC recovering the costs incurred as a result of your defaults. The only issue open to dispute is that of the level of charges. For the avoidance of doubt, GMAC continues to assert that the level of the charges reflect a genuine pre-estimate of the costs likely to be incurred as a result of each particular type of default.

 

With respect to your references to the OFT statement of 5 April 2006, the statement was of course referring to credit card accounts and not mortgage accounts. These are two completely different types of business. The OFT has not indicated that it has any difficulty with the charges administered in respect of mortgage accounts. In any event an OFT opinion is simply an opinion and does not carry the force of law. The interpretation of the law remains a matter for the Courts.

 

With regard to the Court, you should consider that the Court may not look favourably upon your claim, given that the charges have arisen as a result of your failure to comply with the terms of the mortgage agreement. The terms of the agreement regarding payment and the costs which would result if payments were not made on time were fully set out in the contractual documentation. If those terms were not to your liking, you were perfectly entitled to chose an alternative product and/or mortgage provider.

 

As regards, your claims under Unfair Contract Terms Act, and Supply of Goods and Services Act, your claims appear to be completely misconceived. As to the Unfair Contract Terms Act, section 4 to would only be of application if it were alleged that GMAC was seeking an indemnify for liability relating to a breach of contract and/or negligence by GMAC. As far as I am aware, you do not allege that the charges have arisen as a result of any default on the part of GMAC. As such section 4 is not applicable.

 

As regards the Supply of Goods and Services Act, section 15, to which you refer, is only on of application where consideration for the performance of the contract has not specified in the contract. Assuming the charges relate to performance of the contract, clearly GMAC's Tariff of Charges specified the charges to be levied. In the alternative, if the charges result from a breach of contract, then section 15 is of no application.

 

Offer

 

GMAC is conscious of the cost of preparing for a Hearing. As such, despite the fact that your claim is without merit, GMAC is prepared to make you an offer of settlement in order to attempt to save on legal costs.

 

I am instructed to offer you £550 by way of full and final settlement. Please note that this offer is made without admission of liability. Further, the offer is made subject to your agreement to keep the terms of settlement confidential. If the offer is acceptable to you, I will forward a draft Consent Order setting out the terms of settlement.

 

Please note that this offer is made on a without prejudice basis. As such this correspondence cannot be shown to the Court.

 

I look forward to Hearing from you by return.

 

Gareth Vowles

Solicitor

 

How can I reply to that? Do they have any grounds or are they using scaring tactics?

 

Help anyone!!!!

Sanday

[gizmo111]

Course they are just scare tactics - what rubbish about the court won't look favourably cos it' your fault - if they are that sure then why offer 50%?

I suggest you PM zoot who will no doubt help you by writing one of her superb letters which will leave them in no doubt as to who is int he right!

[zootscoot]

I note your reference to your bundle of documents and your comment that you are fully prepared for the Hearing on 22 November 2006. I have perused your bundle. While you have enclosed copies of various statutory sections, unfortunately, I cannot see that you have enclosed any actual evidence relating to the issues in dispute.

 

For example, you have not provided any evidence to support your assertion that the charges disputed are a penalty, rather than than compensatory in nature. On this issue, it is not clear to me whether or not you accept that GMAC will have incurred costs, for which it is liable to be compensated, as a result of your repeated failure to make payments on time and as a result of returned/dishonoured Direct Debit and cheque payments.

 

Perhaps that would be because of GMAC's failure to disclose the info you have been asking for which would not be looked upon favourably by a judge.

 

The conclusion to be drawn from the OFT statement, in as far as it may be argued that the OFT statement has any relevance to mortgage accounts

 

True but the exact same laws which apply to bank charges also apply to mortgage charges

 

The only issue open to dispute is that of the level of charges. For the avoidance of doubt, GMAC continues to assert that the level of the charges reflect a genuine pre-estimate of the costs likely to be incurred as a result of each particular type of default

 

So prove your actual costs and it will be plain to see whether it is a penalty charge or a liquidated damages clause.

 

With regard to the Court, you should consider that the Court may not look favourably upon your claim, given that the charges have arisen as a result of your failure to comply with the terms of the mortgage agreement. The terms of the agreement regarding payment and the costs which would result if payments were not made on time were fully set out in the contractual documentation. If those terms were not to your liking, you were perfectly entitled to chose an alternative product and/or mortgage provider.

 

 

 

You do not dispute that you are in breach of contract. A breach of contract is necessary in order to invoke protection of the penalty provisions. The judge will not be interested in what caused you to breach your contract or whether you are to blame for this. This paragraph is pure intimidatory and typical of the attitude of banks hoping people will be too ashamed of their inability to pay and preying on the feeling of inadequacy that non payment brings. DO NOT LET THEM BULLY YOU.

 

The terms of the agreement regarding payment and the costs which would result if payments were not made on time were fully set out in the contractual documentation. If those terms were not to your liking, you were perfectly entitled to chose an alternative product and/or mortgage provider.

 

Show me a mortgage product which does not incur penalties for late payment.

 

The fact that you agreed to the terms & conditions will not affect your case in any way. In all the cases involving penalty clauses there is no dispute as to the fact that the parties agreed to the term.

 

As regards, your claims under Unfair Contract Terms Act, and Supply of Goods and Services Act, your claims appear to be completely misconceived. As to the Unfair Contract Terms Act, section 4 to would only be of application if it were alleged that GMAC was seeking an indemnify for liability relating to a breach of contract and/or negligence by GMAC. As far as I am aware, you do not allege that the charges have arisen as a result of any default on the part of GMAC. As such section 4 is not applicable.

 

 

Errr it is YOU in breach of contract not GMAC? Have they got the youth training staff on the case?

 

As regards the Supply of Goods and Services Act, section 15, to which you refer, is only on of application where consideration for the performance of the contract has not specified in the contract. Assuming the charges relate to performance of the contract, clearly GMAC's Tariff of Charges specified the charges to be levied. In the alternative, if the charges result from a breach of contract, then section 15 is of no application.

 

 

 

This bit is actually right but never mind there is enough ammo under the common law penalty provisions ,UCTA and UTCCR to rely on.

 

GMAC is conscious of the cost of preparing for a Hearing. As such, despite the fact that your claim is without merit,

 

Yeah right more like they know there is no chance!

 

I am instructed to offer you £550 by way of full and final settlement. Please note that this offer is made without admission of liability. Further, the offer is made subject to your agreement to keep the terms of settlement confidential. If the offer is acceptable to you, I will forward a draft Consent Order setting out the terms of settlement.

 

 

 

Can't remember what your claim was for but unless they are offering the full amount I would decline. As to the confidentiality part they can not actually hold you to this unless they offer you anything extra to what they already owe you.

 

Looks like you're nearly there girl!

 

Hold out a bit longer.

 

All the best

 

Zoot

[ellielou]

Wow Sandy - Zoot has just directed me to this thread. It's amazing - I really admire you for going all the way with this. It must be really daunting tacking a big company like GMAC as an individual.

 

I'm attempting ot take on Kensington for an ERC of £5,700. I really hope I have your guts to fight it this far.

 

Well done, I think you're nearly there.

 

[jax1964]

Keep going Sandy, will be interested to see how this pans out.

[ukaviator]

I note your reference to your bundle of documents and your comment that you are fully prepared for the Hearing on 22 November 2006.

 

Anyone know how Sandy got on?. . Did it go to court?..

 

Uk. . .

[colinbradley]

Hi Sandy,

 

Any news? I am just about to start my claim against GMAC.

 

Cheers.

 

Colin

[innocent]

Fascinating.....

 

Any news Sandy?

 

Kind regards

 

 

Innocent

[jssandy01]

Hello

I have been on hols 3 weeks so hence no posts.

I won!!!

No court hearing occured!

Need I say more!!

Thanks to everyone!!