case management conference

[emmajoe]

Hi,

I was wandering if anyone can help?

I am attempting to take to court my previous mortgage company. I was claiming back bank charges for arrears and return direct debit. I was simply so annoyed when looking at my records that I had been charged as much as £80.00 in one month. All the charges seemed so excessive. It doesn't cost them £30-80 to return a direct debit. I assumed it was the same as bank charges . I also included the ERC. It was over £600.00. Again excessive. I hadn't broke any fixed term then why was I charged £600+?

I have just received a letter from the court saying there will be a case management conference in November that the mortgage company must organise.

I have been advised to ask on this site about what a huge mistake I seem to have made???? I didn't realise that they could sue me if I win or lose for £1000s. I simply do not have £1000s. As yet nothing has been done so why will it cost £1000s even if I try and end the case. I would appreciate any advice.

Emmajoe

[borgbaiter]

Re: case management conference

hi emma

what are the dates of these charges? and the erc


Borgbaiter

[Amethyst]

Re: case management conference

Hiya Emma

Am esmerellda over on MSE ( no idea why before anyone asks)

The ERC is a term which is included in your mortgage agreement when you take out the mortgage, usually to tie you in to some fixed term period.

The Mortgage charges are similar to bank charges and are penaltys for a breach of contract and thus subject to common law principles and need to be proportionate to the costs of the breach. Usually you see mortgage companies refund or at least reduce these prior to any court hearings.

The ERC is a bit more complex. The mortgage company have let it get this far but you are previous to any court hearings so any costs shouldnt really be involved at all at this stage as it has pretty much just been a complaint. I think I breifly explained indemnity clauses to you over on MSE. They don't seem very fair I know and there is work in that area but as yet the general advice is not to reclaim ERCs in court. If you feel they are excessive take it through FOS, as you have already been advised.

The issue with simply dropping the claim is that the mortgage company could claim against you for their costs so far - acknowledgement and defence prep thus far so woouldnt be too bad, but its best to try and avoid any of it at all but getting a written agreement that if you drop it they wont pursue you for costs. This is usually done via a Tomlin order (there is another term for it but has gone right out of my head at the moment) I'll pop off and get an example in a bit for you.

This would though stop you going through FOS too for the same fees.

Anyway its a bit difficult to advise blind so if you do have your mortage agreement, letters from and to the mortgage company ref this claim, your POC and the mortgage companies defence, it would be exceedingly helpful if you could paste or scan them in here.

They could just give in when they get the CMC notification, or just not bother arranging the telephone conference as ordered but once they do theres more costs etc involved.

These cases are only difficult because of the indemnity clause. If it was for a loan product etc then you'd be fine in small claims because of the costs exemption for the most part.

Anyway if you could give as much info, and if you have the docs I mentioned above then that would be brilliant.

Many thans, and don't worry

Ame
xxx


p.s welcome to beagles and cheers borg x

[Amethyst]

Re: case management conference

Consent Order....... see said it was on tip of my tongue

[Amethyst]

Re: case management conference

emma - this was posted back Feb 07 by Ashley on another site.

It explains it a bit better than I can


also have a read of



see here Mortgage Express/ERC *Withdrawn - costs liabilty*

and here Maroonfox5 V Mortgage Express*Lost in court*

Firstly.

You were free to take a mortgage where ever you chose to, and in the event that you had little choice in your decision because of your circumstances you were free to rent and wait until your circumstances improved.

The mortgage market is highly competitive, more so then bank accounts, tens of thousands of different deals are on the market at any one time. You chose to take this mortgage as it offered you something in return for ERC, what that was differs greatly from deal to deal, from a cash back lump sum to just the ability to take a mortgage.

The banks do not try to argue this point with bank accounts, as they know you have very little choice in current accounts and that they all have the same terms, and in addition having a personal account has become a fundamental part of adult life. But this is clearly not the case with mortgages, mortgages are an instrument to a goal but not essential.

When you entered into this bargain, your mortgage company asked you in return for the bargain to give it a minimum amount of time you would trade with them, and they also said, in the event you leave before x date you will do x, the ERC. This was not hidden and you entered freely into this agreement with your eyes open.


Secondly.

Small claims, it is true that you are offered cost protection on the small claims track. And I will give you my views on this.

I do not consider given the importance of these claims that the allocation to the small claims track is appropriate to these claims. I have the awful feeling these claims have been put on the small claims track as the Judge making the allocation has not read the claim and defence and/or has been so used this last 9 months of claims brought against the banks that they have not defended, that he believed they would not defend these claims.

With this in mind my concern is that as it becomes clearer that they are going to defend ERC claims, and that the claims are re-allocated to the fast track, I would not be surprised if you tuned up for a small claims hearing, and the judge on the day adjourned and re-allocated to the fast track once he was fully aware of the nature of the claim and it was evident they are defending.

In the event that it stayed on the small claims track there are provisions within CPR in small claims for costs, when the losing party has acted unreasonably, I believe that bringing such a flawed claim is in itself unreasonable. But this is not for me to decide, and this would be different from Judge to Judge.

Although I would expect the defendant to argue that they are being prejudiced by the use of the small claims track, where for obvious reasons it has no choice but to defend these claims, in order mto maintain the commercial viability of ERCs within the industry. If their customers are free to use the small claims court to recover an amount under £5,000 and it is costing them more than the sum claimed to defend the matter, it is a clear prejudice and not what the small claims track for intended for. Due to the claim being merit less in the first place the defendants, in the interests of justice and the integrity of the civil system, should be financially compensated for having to defend the claim.

Then for many there will also be the contractual clause that allows them to recover any and all legal costs arising from the mortgage agreement, I believe also this clause in affect waves your rights to cost protections in any track, and they will be awarded reasonable costs, and trust me what the courts will consider reasonable will be far greater then you will, in MaroonFox’s claim the court considered £7,500 to be reasonable. It is also well established that these clauses are win or lose, they get reasonable costs.

If and when the defendants will bring up this clause is a matter for the defendant and its lawyers, and I would not try to second-guess them, but you, as the claimant should be aware this is a possibility if your contract has such a clause.

It is not impossible to get a settlement offer from the defendants at this stage, but I truly believe that we will be seeing the last of the settlements within the next 2 weeks (I hope I am wrong). Up until now the industry has been at a loss how to deal with these claims, and just like the bank charges have not wanted to go into court until all considerations had been made, as can be seen by Fox’s claim Cobbett’s at least put together a strong argument to it clients, to convince them they should be allowed to defend the claim which they did.

Now after Fox’s hearing I firmly believe it is just a matter of time for the news to filter though out the industry of Cobbett’s success, and although it was in the county courts I expect a lot will be made of the fact they (the courts) brought in the Circuit Judge to hear the case.

[borgbaiter]

Re: case management conference

hi

id add that my claim wasnt quite the same as erc but more complicated than just the penalty charges. the claim amount was £4,900 odd and the mortgage company pushed for it to put into fast track. the judge allocated it to multi track !!! at this stage the defence claimed their costs had amounted to approximately £4000. (obviously they havnt proved this cost yet)

stuck at that point, couldnt go on and couldnt get out :-(.


fortunately i have manage to get it stayed and sent to the fos as i said earlier.


dont give up hope emma just have to go through the process very carefully.


Borgbaiter

ps the fee for a hearing in multi track was going to be £1000.00

[Amethyst]

Re: case management conference

Yep am just putting info on here pending viewing your docs Emma okay. then we can make an informed decisions so can ignore this for the moment

IN THE (Court)COUNTY COURT CLAIM NO:

BETWEEN:-


Claimant
- and -


Defendant

______________________

ORDER
______________________



UPON the parties having agreed terms of discontinuance

BY CONSENT IT IS ORDERED THAT


(1) all further proceedings in this case be discontinued; to include any counterclaim;
(2) there be no order for costs;

The parties consent to an order in the above terms.

Signed:-

…………………………….. …………………………….

Claimant Solicitors for the Defendant

…… (Date) 2007 (Date) 2007

Claim No.XXXXXXXX


Dear Sir / Madam

We are in receipt of your letter dated 27th September 2007, in which you state your intention to claim costs against us for unreasonable behavior.

This letter appears to be an attempt to intimidate us into withdrawing our claim. We are aware that your client has entered a counter claim under clause 17 of the product terms and conditions.

In view of your Clients offer to settle the outstanding balance on the account for a figure of £XXXX, we would like to take the opportunity to offer a repayment proposal to your client of £XX per calendar month over a period of 24 months or until the balance is clear, reviewable at 6 monthly intervals with a view to earlier settlement. We require confirmation of their acceptance of this proposal in writing.

If this is agreeable, we request your approval of the attached consent order. This would discontinue this claim against your client, and bring this matter to a close.

[Celestine]

Re: case management conference

Just pondering............couldn't Emma just drop the ERC element to her claim? It's only £600 so if she just amended her POC and schedule, she could still proceed for the late charges.
As she is a LIP and I'm assuming the Mortgage companies solicitors, they have not attempted to 'warn' her of the precedent against claiming for ERCs, I'd be surprised if she wasn't permitted to amend. The late fees mean a good part of her case is well founded.

Still need to see the POCs etc.

Good luck Emma and Welcome to Beagles.

[Amethyst]

Re: case management conference

Aye I was thinking that - although if she wants to go via FOS she would probably take the charges to FOS too. Need to see the POC etc first before anything tho I think.

[borgbaiter]

Re: case management conference

hi

FOS made it clear in my case the case had to be stayed for them to do anything.



Borgbaiter

[Amethyst]

Re: case management conference

Shouldnt be too difficult to get the charges part stayed. The indemnity is the important part however people have got out a lot later than this with consent orders on costs. It is a risk tho and the ERC is for such a small amount too. Have to weigh up the risks.