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Recent posts. Court on 12th Nov.
he time has come... an update for you all
On Monday 12/11/07 at 1100hrs, in the Exeter County Court, battle is joined between myself and that venerable institution Bradford and Bingley aka money grabbing sh@~s ahem Mortgage Express in order to reclaim an ERC. Total being claimed is £3861.05.
The main stumbling block is Smith v Mortgage Express. This case was heard in Leeds High Court and yes the firm representing Mortgage Express on that occasion "Cobbets LLP" is the same one for mine.
Problem 1 - Precedence. Earlier this year the Smiths lost their ERC fight with ME in the High Court. Judge Kayne ruling in favour of ME basically that an ERC is a core term and that the customer elects to exercise a right in early termination of the contract and thus in electing this right, there is no breach of contract and thus penalties could not apply. He goes further to quote Re Apex Supply Co, Ltd, Alder v Moore, Philip Bernstein v Lydiate Textiles Should saying that a sum of money which far exceeds the damage likely to be suffered does not by itself render the provision void as a penalty and one does not relieve against bargains merely because they are improvident when they are entered into between parties at arms length. Judge Kayne continued to quote Lord Rothskill who stated (basically) that a clause was not a penalty clause if it provided for the payment on the happening of a specific event other than a breach of contractual duty.
He goes on - basically everything UCCTR, OFT, Director General vs First National - all shot down. ERC remains firmly entrenched as a core term and therefore not a penalty.
Every case has to be judged on it's merits. However the above sets strong precedence from the High Court (and I'm in a county court). I am arguing that it was ME's own actions that constituted unreasonableness by placing me in a position where the core term no longer could be applied and that it became a penalty as I was not electing a right but rather forced into breach of contract by the repossession proceedings placed against me which necessitated the hurried sale of the property with 15 days to go before the ERP was up when ME was fully informed that I was facing a time of financial hardship (I had just been made redundant) and that the house was on the market and that there was a buyer for it. There were no arrears at the time. The only thing I did was to let the house out in order to pay the mortgage. I am saying that they saw an opportunity to grab some extra cash and forced me into that position.
The case of the Smiths is documented on another consumer forum and it is dire reading. He got nailed for £7500 costs. His case was on fastrack. Mine is on small claims track hopefully I can avoid the costs. Nonetheless I'm still wetting my pantsjavascript:void(0);
Undecided.
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Had a phone call from Cobbetts today. Their witness who is head of finance for ME and whom has provided a statement and a spreadsheet detailing the costs incurred by ME for providing the product, can't make it to court on Monday. Thus I have to formulate questions to ask and send them by email to the solicitor whom will get the appropriate responses. I'm not sure how that sits in court itself other that I am unable to cross-examine the answers to questions. He calculates that the total paid to the end of the deal period (ERP) was £18,180.00. Without the deal what should have been paid would have been £20,610.00 for the same period. Thus total discount received is £2430 + an estimated process fee paid to the introducer of £691.20 leaves a total of £3121.20. I was charged an ERC of £3601.61.
Can anyone think of any questions to ask? I have already thought of some but I want to cover all bases.
The other thing is that I am still really worried about is the possibility of costs being awarded should I lose (and I know what I would bet on). If there is even the remote possibility of costs that can be awarded up to more than the £50 per day. I am out. I drop the case. I can't even afford £1000 let alone £7500 (and Cobbetts asked for £12500 in the Leeds case). Can anybody confirm for me please?
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he time has come... an update for you all
On Monday 12/11/07 at 1100hrs, in the Exeter County Court, battle is joined between myself and that venerable institution Bradford and Bingley aka money grabbing sh@~s ahem Mortgage Express in order to reclaim an ERC. Total being claimed is £3861.05.
The main stumbling block is Smith v Mortgage Express. This case was heard in Leeds High Court and yes the firm representing Mortgage Express on that occasion "Cobbets LLP" is the same one for mine.
Problem 1 - Precedence. Earlier this year the Smiths lost their ERC fight with ME in the High Court. Judge Kayne ruling in favour of ME basically that an ERC is a core term and that the customer elects to exercise a right in early termination of the contract and thus in electing this right, there is no breach of contract and thus penalties could not apply. He goes further to quote Re Apex Supply Co, Ltd, Alder v Moore, Philip Bernstein v Lydiate Textiles Should saying that a sum of money which far exceeds the damage likely to be suffered does not by itself render the provision void as a penalty and one does not relieve against bargains merely because they are improvident when they are entered into between parties at arms length. Judge Kayne continued to quote Lord Rothskill who stated (basically) that a clause was not a penalty clause if it provided for the payment on the happening of a specific event other than a breach of contractual duty.
He goes on - basically everything UCCTR, OFT, Director General vs First National - all shot down. ERC remains firmly entrenched as a core term and therefore not a penalty.
Every case has to be judged on it's merits. However the above sets strong precedence from the High Court (and I'm in a county court). I am arguing that it was ME's own actions that constituted unreasonableness by placing me in a position where the core term no longer could be applied and that it became a penalty as I was not electing a right but rather forced into breach of contract by the repossession proceedings placed against me which necessitated the hurried sale of the property with 15 days to go before the ERP was up when ME was fully informed that I was facing a time of financial hardship (I had just been made redundant) and that the house was on the market and that there was a buyer for it. There were no arrears at the time. The only thing I did was to let the house out in order to pay the mortgage. I am saying that they saw an opportunity to grab some extra cash and forced me into that position.
The case of the Smiths is documented on another consumer forum and it is dire reading. He got nailed for £7500 costs. His case was on fastrack. Mine is on small claims track hopefully I can avoid the costs. Nonetheless I'm still wetting my pantsjavascript:void(0);
Undecided.
-------------------------------------------------------------------------------------
Had a phone call from Cobbetts today. Their witness who is head of finance for ME and whom has provided a statement and a spreadsheet detailing the costs incurred by ME for providing the product, can't make it to court on Monday. Thus I have to formulate questions to ask and send them by email to the solicitor whom will get the appropriate responses. I'm not sure how that sits in court itself other that I am unable to cross-examine the answers to questions. He calculates that the total paid to the end of the deal period (ERP) was £18,180.00. Without the deal what should have been paid would have been £20,610.00 for the same period. Thus total discount received is £2430 + an estimated process fee paid to the introducer of £691.20 leaves a total of £3121.20. I was charged an ERC of £3601.61.
Can anyone think of any questions to ask? I have already thought of some but I want to cover all bases.
The other thing is that I am still really worried about is the possibility of costs being awarded should I lose (and I know what I would bet on). If there is even the remote possibility of costs that can be awarded up to more than the £50 per day. I am out. I drop the case. I can't even afford £1000 let alone £7500 (and Cobbetts asked for £12500 in the Leeds case). Can anybody confirm for me please?
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