Penfold V Amber Home Loans

[Penfold92]

OK posted the above First class recorded today and we'll see what they do... I did call the Court on Friday and they had still not heard anything from them so cross fingers I should be able to fight any set aside application as they would have had over a week to file something and there was no set ruling by the Court re what time limit they had so we;ll see...

 

Penfold

[Penfold92]

Hear nothing from Amber so far, but read this in the press about Amber and so maybe they sacked the Legal people...LOL

 

Amber Homeloans, part of Skipton, is going to stop all new lending. The lender will focus on its back book and will honour any pipeline business.

 

The move comes as a result of changing market conditions and 27 members of staff are in a consultation period about possible redundancies.

 

Gordon Jolly, managing director of Amber Homeloans, said: “Many of the ways in which we temper our level of risk are currently closed to us, such as securitisation and asset trading, and so we’ve decided it’s time to pause for breath and wait until the market returns to more normal conditions.”

 

Jolly will be taking a new position as general manager of Skipton’s society’s credit and lending function.

 

Penfold

[Penfold92]

Ok heard nothing from Amber and spoke to someone there on Friday who said “ we have till 13th to respond to your complaint….” Bless him he was a bit shocked when I explained that this was way past complaint stage and that I had a judgment against them and will be getting a warrant of execution against them on Tuesday…He said he would get the case manager to call me, but I doubt he will…

In the meantime I did not add charges etc to my judgment nor get the judge to clarify the data processing part of my claim. So I am thinking to delivering this to the Court tomorrow…any views would be appreciated…

Dear Court Manager,

RE: Claim number 8LU00XXX V Amber Home Loans

Further to the issue of the Default Judgment on 26th February 2008 and our recorded delivery letter to the Defendant last week asking for payment we have still not received any communication from the Defendant. In fact we also rang them on Friday requesting communication for them.

As we stated in the letter to the Defendant we will apply to the Court for a Warrant of Execution with regards this claim. However before we do this, we have realised we missed a few things on the original Default Judgment.

Firstly, there is no mention on the Judgment about their continued illegal processing of our subject data as per paragraph 11 in our Particulars of Claim and as per our request to the Court for them to cease this immediately and in fact remove all references to our account (as per paragraph 13 (a) of the Particulars of Claim). We would humbly request that the Court please add this to the Judgment dated 26th February 2008.

Secondly, being litigant in persons, did not realise we were supposed to add costs at that point. We therefore humbly request that these also be allowed to be entered in the revised judgement. We have spend so far £22.20 in photocopying, 25 hours researching and preparing our case over the last year at £9.25 per hour (as per litigate person rules) and £15.68 in postage. That comes to £269.13 and so the claim should be for £3472.56 plus £377.13 costs. The total judgment should therefore be for £3849.69. We are happy to substantial all costs should the Court feel these are unreasonable.

We also humbly request that the interest should be continued after Judgment at a daily rate of £0.76 per day under section 69 of the County Courts Act 1984 at the rate of 8% a year until full payment is received.

Yours faithfully,

Mr. Penfold

[freakyleaky]

We are happy to substantial all costs should the Court feel these are unreasonable.

Don't understand that bit prabs.

Also when you say you phoned them on friday, include the date and time.

 

I personally think you should simply go for the original judgment at this stage and make a seperate claim for costs etc once you have the money.

[Penfold92]

So you think get the Warrant of Exicution then on Tuesday get the dosh then go for wasted costs? I thought by doing it this way I am also giving them more time to hang themselves by if they try at a later stage to set aside the Judgment?

 

Prabs

[Penfold92]

We are happy to substantial all costs should the Court feel these are unreasonable.

Don't understand that bit prabs.

 

Just saying to the court in a round about way do you think these are unreasonable? But in hindsight you are right and I will leave that sentence out and let the Judge say not reasonable...

 

Prabs

[Penfold92]

Ok I have decived to go against my learned friend freaky and send the letter to the Court. I recon that they will hang themselves anyway and I could end up much better off getting the ongoing interest post judgment. I know I prob won't, but what I am doing is letting the Court know once more about my recorded del letter to them and then the phone call so this is all evidencing their knowledge of the claim and further showing their abuse of the system by not responding sooner...Well my view anyway... Keep you updated,

 

Penfold

[freakyleaky]

Good luck Prabs.

[Penfold92]

Thanks matey, I feel that since I am not in a hurry for the dosh I can play the game this way and hopefully benefit by giving them loads of time without them responding so when I try to collect in a few weeks they have absolutely no excuse for not paying up...

 

Prabs

[Penfold92]

OK Got a call from Amber to say they have told Luton County COurt they will be applying to Luton County Court to set aside the Judgment. They are claiming they did not receive the claim, nor the judgment and were only made aware when my recorded delivery letter was received. How convenient I say…

 

Any views on what I should do next or just wait for the application to set aside the Judgment.

 

Thanks,

 

Penfold

[Penfold92]

Ok I decided to talk rather than play slow here and see where it takes me...I am dropping this into the Court today AND have faxed Amber it so they are aware of my objections. I hope this will result in a quicker settlement....

 

Penfold

 

Dear Sir,

RE: Claim Number: 8LU00XXX – Penfold V Amber Home Loans

I, the Claimant and litigant in nature, refer to the claim as detailed above and would now like to inform the Court that I have finally been contacted by the Defendant to tell me they will be applying to set aside the Judgment. We firstly find it very strange that they did not receive the Courts initial claim form, nor the Judgment and were only made aware early last week by our recorded delivery letter. Yet they still failed to make contact with the Court or ourselves until a further telephone call by us.

We humbly request that this letter go down to the District Judge with the said Application by the Defendant (when it arrives). If they are applying on the basis of full settlement of the claim this is not the case. If they are applying on the basis of successfully defending the claim then we would humbly request that the Court ask for proof of any previous successful defence. Also for the Defendant to provide clear documentation allowing the continued processing of subject data once those permissions have been withdrawn. This is a serious breach of the Data Protection Act as the Court will no doubt be well aware.

The claims regarding the damages on our Particulars of Claim are based on the following precedence’s, where the legal reasons are outlined in Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 and Kpohraror v Woolwich Building Society [1996] 4 All ER 119. We would also request that the District Judge issue an order from the Court under s.14(1) and s.14(3) of the Data Protection Act 1998 for the removal of the Default information and any other prejudicial information from all credit reference agencies as soon as possible.

We would also beg the District Judge to consider our costs to be added to the original judgment as being Litigant in persons we did not realise they should be added at that stage. We are requesting £22.20 for Photocopying, 25 hours research and preparation at £9.25 per hour (based on the Litigant in Person rates in the CPR) and £15.68 in postage. That would mean the judgment should be for £3472.56 plus £377.13 costs (including the £108 Court Fees).

Yours faithfully

[Penfold92]

I know I am in the opposite position in that someone is applying to set aside a judgment on me, but this made great reading and may help others:

 

http://www.bdl.org.uk/images/12_how_to_set_aside_a_judgment_in_the_county_court.pdf

 

Prabs

[Penfold92]

Well Amber have apparently faxed an application to set aside over, but without the payment so it will not be processed. In the meantime I am going to drop the following letter off tomorrow morning and pay for the warrant. After all how are they applying to set aside without knowing the POC's?

 

Dear Sir,

RE: Claim Number: 8LU00XXX – Penfold V Amber Home Loans

Further to our fax of the 10th March 2008 we are asking for this letter to be put on the file, whilst we request a warrant of execution for this judgment. We have still not received any payments in settlement of this Judgment, nor been served any application to set aside as we were told by the Defendant on 10th March 2008. In the meantime we were wondering how they can possibly apply to set aside this judgment if they claim they never received any documentation from the Court? We did not supply the Particulars of Claim directly to them and as I understand for the Court Clerks neither did the Court so how do they intend to defend a claim they know nothing about? We humbly request the District Judge to strike out any application as they have not satisfied any of the requirements under Section 13.3 of the CPR’s based on setting aside the Judgment.

As a direct result we have decided that this is merely a stalling tactic and so are now enclosing our request for a warrant. We have decided to keep this to the original Judgment amount for now and will apply for wasted costs order at a later stage to speed the process up. We have enclosed a letter we sent to the Defendant yesterday outlining their lack of a case.

We hope the Court will agree that we have made every attempt to resolve this matter and communicate clearly with the Defendant and they have made no attempts to resolve this quickly, but in fact are trying to stall and abuse the Court System.

Yours faithfully

Penfold

[Penfold92]

Ok so I got home to the application by post, what’s interesting is that the Court did not have the fee so I am assuming it is in the post to them, but they did not get it yet…Who knows anyway I will not type up the initial bit of their witness statement as it is I am blah blah….

 

The Defendant’s Case

 

13 The Defendant will contend that they have a real prospect of successfully defending this matter – Bless them what else will they say?

 

14 The Defendant will contend when the Claimant entered into the mortgage account, he was bound by the terms and conditions, which included any additional administration fees that may become applicable during the term of the mortgage. – This can be argued from Zootscoot’s prelim letter

 

15 The Defendant will aver that the monthly arrears of £50 is neither unlawful nor unfair and represents a reasonable estimate of the costs incurred by the Defendant in administrating an account in arrears. The Lender would expect to incur substantial costs in administering a mortgage which is in arrears, the costs of which would include, inter alia: -

i) The payment of staff to monitor payments and any non-compliance with agreed arrangements;

ii) the costs of dealing with any correspondence with the customer; litigation solicitors and any third party agency;

iii) the cost of housing additional staff necessary to deal with customers arrears– This can be argued from Zootscoot’s prelim letter. Also when we first went into trouble I called them and organised the payments and told them not to call me I would call them each month to sort out, they missed that off all this.

 

16 The Defendant will aver that the charges were expressed fully and in clear, intelligible language. The Defendant took no unfair advantage of the Claimant in obtaining an agreement to the monthly arrears fee; a firm of solicitors represented the Claimant during the process. In addition, details of the fees and the circumstances of when and how they would be levied were sent to the Claimant prior to the agreement being entered into. – Sols represented me because we were forced into selling our home and they were not representing us for the purposes of the mortgage it was Amber who wanted to ONLY speak to them for confirmation of what was going on!

 

17 In light of the above, it can be seen that the Defendant has a real prospect of successfully defending this matter. It would be in the interests of justice to set the judgment aside and allow the Defendant to defend this matter. They have completely missed the Stat Notice I sent them last year telling them to stop processing our data. They do not have the Particulars of Claim and so do not realise…yet…

 

18 Further, to the knowledge of the Defendant, judgment is defective in that the sum of £3,580.56 in not the correct amount claimed by the Claimant. The Claimant has provided documentation in support of a claim for £445 and no other documentation in support of the sum of £3,580.56 has been provided. Again if they had the POC they would see that £445 charges, £108 Court costs plus interest then £3000 damages

19 I therefore respectfully ask the court to make an order that:-

i) Judgment entered against the Defendant on 26 February 2008 be set aside.

The Claimant do serve upon the Defendant a copy of the Claim form and the particulars of claim within 7 days of the date of the order.

iii) The Defendant do file and serve a defence within 14 days from the date of receipt of the particulars of claim

iv) The Claimant do pay the Defendant’s costs of this application in a sum to be assessed if not agreed. – What is this all about small claims and they did not get the claim, nor the judgment and we informed them of this matter so how do we have to pay this?

 

20 I do believe the facts stated in this witness statement are true….

 

 

OK guys help ripping this apart…In the meantime I will try to compose something myself, but would appreciate all help as I do not want this buggers to get let off the hook when I have them there nicely….

 

 

Penfold

Edited June 16, 2008 by Penfold92

[Penfold92]

Ok this is what I have come up with so far grabbing a bit from here and there across the site...

 

13/03/2008

Dear Sir,

RE: Claim Number: 8LU00XXX – Penfold Couple V Amber Home Loans

Further to our fax of the 10th March 2008 we have now received the Defendant’s application to set aside the Judgment and their witness statement. We would like to have our views expressed when the District Judge considers this application.

As we understand it CPR 13 governs such an application and the Defendant is trying to use the fact that the Defendant has “a real prospect of successfully defending the claim”.

Firstly, if they claim not to have received the Courts Letter regarding the claim or the Judgment itself, then how can they possibly be confident in defend what they are unaware of? But even if they were aware of the Particulars of Claim there is no legal precedence with regards Mortgage Charges, nor their continued processing of our personal data, which is directly against Section 10 of the Data Protection Act, which on its own is a criminal offence. We do not see how they can claim this option in their application.

We humbly request that the District Judge considers the following in response prior to his decision. Mortgage charges differ to current account overdraft charges, insofar as there is a clear breach of contract. Under the terms of our mortgage we were required to make our payment by a specified date. In breach of this term we made our payments late and in consequence of this the Defendant applied charges to our account. There is thus no question of law regarding whether the charges are capable of amounting to a penalty, it is solely an issue of fact as to whether the level of charge is in fact a penalty.

 

Furthermore as there is a clear breach of contract there is no question about whether or not the UTCCR applies as it has been held to apply to default provisions in Director General Fair Trading V First National Bank plc [2002] 1 All ER 97.

In the case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract as oppose to a charge which represents a penalty. This law was confirmed and upheld in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79. A charge will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable.

 

In addition the Defendant’s charges appear to represent an unfair term of contract which is contrary to the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). Our account fell within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as we were consumers at that time. Their charges constitute an unfair penalty under Schedule 2 of the said Regulations which provide an indicative and non-exhaustive list of terms which may be regarded as unfair. Under paragraph 1(e) of schedule 2 this specifically includes terms which have the object of requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation. We would vigorously contend that this is the position regarding the fees which the Defendant deemed fit to apply to our account.

 

We would like to bring your attention to the following statement by The Office of Fair Trading:

 

"A term in a mortgage agreement which requires the borrower to pay more for breaching the contract terms than actual costs and losses caused to the lender by the breach (or a genuine pre-estimate of that) is likely to be regarded as an unfair penalty and to be unenforceable both at common law and (in a consumer mortgage) under the Unfair Terms in Consumer Contracts Regulations.”

 

We believe that the charges the Defendant levied of £445 far exceed any true cost to the Defendant as a result of our breaches and any genuine pre-estimate they could conceivably reach. This is especially the case since we made contact with the Defendant at the start of our hardship and expressed stated that as long as we upheld our side of the agreement we would not incur any further charges. Since the Defendant records telephone calls we would request that in any order they were required to provide all telephone conversations between us. If they disagree, then they should be made to demonstrate this by letting us have a full breakdown of the costs to which they have been put to as a result of our breaches, in order to reassure us that their charges really do reflect their costs.

The Application has also completely ignored the matter of the damages with regards the continued processing of our personal data. This is interesting as they were fully aware of this nearly a year ago as per our letter dated 16th August 2008 (page 1 of the Defendants bundle PB1). This matter was reiterated again in our fax to the Court on 10th March 2008 that was also faxed to the Defendant prior to their application dated 11th March 2008. This stated very clearly that damages were added to the claim in line with the following legal precedence’s outlined in Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 and Kpohraror v Woolwich Building Society [1996] 4 All ER 119. The Data Protection Act is very clear on this matter and the above cases provide the legal arguments with regards damages for the illegal processing of personal data without permission.

We would respectfully ask the Court to reject the application on the basis of no real prospect of success. Failing that we would humbly request the court consider the following draft order:-

i) The Judgment be put on hold for 14 days whilst;

ii) The Defendant is to request a copy of the Particulars of Claim from the Court

iii) The Defendant is then to file and serve a full defence within said 14 days

iv) The Defendant explains why it thinks it did not receive both the Court Claim form or the Judgment, whilst processing a large number of letters each day being a Mortgage Lender

v) The Defendant to explain why it is still processing the Claimants personal data after being requested to cease under a Statutory Notice pursuant to Sections 10 and 12 in 2008 and why this was completely omitted in the application even though it had been made clear that this was a major part of the claim

vi) The Defendant is to pay their own application and other costs

vii) The Defendant is to provide a list to successful defences in cases of a similar nature (both with regards Illegal Charges and also Data Protection Act breaches)

viii) The Defendant is to provide transcripts of all telelphone calls between both parties starting from January 2007

We hope the Court will agree that we have made every attempt to resolve this matter and communicate clearly with the Defendant and they have made no attempts to resolve this quickly, but in fact are trying to stall and merely abuse the Court System without any real intention to defend.

Yours faithfully

Penfold

[car2403]

Looks ok to me.

 

I do think it's a foregone conclusion - CPR requires there to be a realistic prospect of defending the claim, not a definate defence. I think the Court will set aside regardless of what you say, as the claim needs to be tried in a hearing - I can't see them looking at the defence to decide if they can defend any more than they will defend.

 

Having said that, you still have a right to reply, so include every reason why you think the defence isn't realistic - shy kids get nowt!

[Penfold92]

So they can ignore the court and still get to defend and waste more time then...i misunderstood the CPR's then...oh well we'll see I guess...what about they me pay for their application?

 

Penfold

Edited June 14, 2008 by Penfold92

[car2403]

The court doesn't need the application fee to process the application - they can refuse to process it without it, but they might not.

 

I can't see how we can prove that they aren't able to defend realistically without going to a trial hearing. It would be good to prove me wrong, but I can see the Court erring on the side of caution, IMO.

 

If you get the right Judge/unprepared solicitor combo, you might come up trumps in the end, though... (Call me the voice of reason!)

 

As you know, I'm going through something similar with O2 right now - I'm hoping the Court sticks to CPR as much as you are, but lets compare notes throughout, (I'm in Court for the app hearing 14 April) to see what happens.

[Penfold92]

Ok I am going to drop the last letter on here off to the Court this morning. However, I am first going to clarify what the Court Clerk told me about them NOT processing the application as there was no fee with it...In the Application bundle they have asked for us to pay this so I am wondering if this is a new clever stalling tactic as there would be a catch 22, I will not hear anything further from the Court as they are not processing anything further and the Defednant will not either and so the Judgment just sits there....So if they confirm this to me I will apply for the Warrant today, ok extra £55, but guarentees that the Defendant will pay their application fee as they will want the warrant suspended...Any views on this guys?

 

Penfold

[Penfold92]

It appears that Amber did send a fee in with their application so I decided not to go ahead with the Request for a WOE.

 

I am not happy that their failure to acknowledge the claim will now cost me several months in messing about with the hearing to set aside the judgment then proceeding to the actual hearing. I can't believe that is our legal process and by ignoring the claim they have been allowed to gain time like this.

 

Penfold

[Bona]

They might not get it set aside I would work on the basis that its a large firm they employ people to see this dosnt happen and they are just using there weight against a litigant in person as they have made a mistake

[Bona]

Have you ever had any correspondence over these charges with them have you any replies to your letters

[Penfold92]

Hi Bona,

 

Oh yes since last year and not a single letter was sent recorded del so IF it gets to the hearing I will be asking the Judge to ask them to explain how they managed to get all my letters before, but not the 2 letters sent by the Court? More likely is their staff (23 of which are being made redundant!) did not put the letters in the right place... BUt I just feel aggreved about the delay in getting to a hearing due to their lack of a response, besides I can't wait to hear the reasons for continuing to process data without permissions....It will be the usual "stadard industry practice, ICO blah blah..." Not we have a legal right to...

 

Penfold

[car2403]

I reckon this "industry standard" stuff will bring the claim to a grinding halt once a half decent solicitor is asked to attend Court - they can't provide legal argument that says they have to process like that just because everyone else does! I can't see it washing in a Court with a Judge, IMO.

 

There's also the fact they don't want any precedent being set on this issue, so they can continue to pull the wool over the eyes of the majority of their customers.

 

It has to be worth their while settling out of Court for this reason.

 

Have you sent a "without prejudice save as to costs letter", outlining what you want to settle? You can include setting judgment aside, staying the claim and allowing for further action if they don't comply with your settlement agreement at a later date. It's worked with me on a few of my other claims - dangle the carrot I say.

 

If it doesn't work, you've got more reason to claim your costs (albeit they are limited) if you're offering a reasonable settlement when you do win.

 

I'm finding the hardest companies to litigate against are actually quite reasonable when you force their hand like this.

[Penfold92]

Have you sent a "without prejudice save as to costs letter", outlining what you want to settle? You can include setting judgment aside, staying the claim and allowing for further action if they don't comply with your settlement agreement at a later date. It's worked with me on a few of my other claims - dangle the carrot I say.

 

If it doesn't work, you've got more reason to claim your costs (albeit they are limited) if you're offering a reasonable settlement when you do win.

 

Hi Mate,

 

I have not, could you PM me or send me a link to one you are on about, you know as well as me that I want this sorted ASAP and can then crack the next nut...

 

Penfold