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greedfighter

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  1. I dont know, Im not an expert on these things but I have been monitoring the whole secret commission thing since GE money tried to repo my house. Michelle is the whizz, but from my reading of the judgement it seems to say that you know 'a' commission will be paid and unless the broker is 'specifically' stated as 'your' fiduciary it is immaterial what if any other commission he receives from the lender.
  2. Have you seen the decision in Sealey and Winfield v (1) Loans.co.uk (2) GE Money Home Lending on 15 August 11. It appears to bring Hurstanger and Wilson to an end and effectively indicates that a secret commission can be paid unless the broker is specifically stated as the borrowers agent.
  3. It struck me the other day what the legal position would be : 1. We go to the bank and take out a £10,000 loan under genuine intention to pay it back. 2. 2 years down the line,say, we default through no fault of our own having lost our jobs. 3. Irrespective of wether or not we take out personal PPI I am told by someone 'trustworthy' at the bank, the bank insures 'itself' against default. 4. It really charges 'us' for this insurance within the payment structure or APR. Questions: 1. Have we really and effectively insured ourselves albeit effected by a third party ? 2. Has the bank suffered any loss ? if not why are they entitled to pursue us for the remainder of the debt. 3. Could this be developed ?. MODs please move to appropriate forum if this is not the right one.
  4. Hi all, update on the underwriting sheet business: 1. FOS - unable to deal; matter has been subject to legal proceedings i.e repossession action. 2. Information Commissioner Office; falls outside remit of Personal Data i.e information between lender and broker. 3. Broker - Not subject to Subject access Request - between lender and broker. 4. FSA - do not deal with individual complaints. All in all nobody is prepared to tell me what, if any additional commission was paid. It seems impossible to obtain this information and nobody wants to give a direction for the lender to provide it. Pathetic !!!!!!!!!!!!!!!!. All in all if I cant get the information how am I going to challenge it ?
  5. Hi guys, still on the case. Some interesting info/guidance from antiestab. So far have written to broker again, MP, OFT and FOS see if this turns up details of commissions paid. if not have spoken to a Solicitor who is fairly confident he can obtain details and have the repossession reversed. Will post again when I have something to add, otherwise I am still paying attention !
  6. Thanks everybody. I think the judge got it wrong on the 'OFT Test Case has settled all these matters'. I certainly think he was getting confused in the Hurstanger Wilson case. He seemed to categorise the secret commission matter as 'its a charge' rather than my argument of 'breach of fiduciary duty'. Lets not put the dampers on it - its only his opinion - different judge may see it otherwise. I could try and appeal - erred in fact and law - but I dont have that sort of money to spare just yet. Still it's a suspended order and I can afford the terms so I havent lost my home. I'll be able to clear the arrears in two months, With 15 years to go on the mortgage that leaves me plenty of time to have another crack. if nothing else I have anoyed them for a bit LOL
  7. Thanks chaps - I'm no lightweight when it comes to fighting my corner - This was the fifth hearing of the possession proceedings! The first - was adjourned having successfully argued that i was waiting for disclosure. The second - was adjourned by them - they were contacting and negotiating with me! actually they didnt contact me at all and didnt respond to me contacting them. the third - I argued they had still not disclosed the information I sought but they said they would do so - so it was further adjourned. the fourth - I argued that they had still not disclosed - the judge said he would give them more time and if the information was not forthcoming he would order disclosure at the next hearing. the last - he changed his mind - I tried to argue they had been uncooperative, disclosure was essential to my defence and fair disposal of the proceedings. He told me under CPR an order by the court for disclosure was discretionary and should only be ordered where it will make a material difference to the case in hand (it does actually say that!). On that basis he told me in his opinion that disclosure would make no difference as to whether or not GE were entitled to possession. I argued that my arrears were eight hundred pounds thus if a secret commission was shown it would be returnable or the agreement voidable - the arrears would be cleared (even if the agreement wasnt void) and no right of action to possession would have existed. He sympathised but reiterated that I was making an assumption a secret commission had been paid. Again he reiterated that an assumption did not justify his ordering disclosure. He finished by saying if you re not satisfied sue the broker - he had got a bit annoyed at this point. I havent give up - I'll clear the arrears - get the possession order lifted - regroup, collect more info and try again.
  8. Went to court today for repossession hearing (secured loan). GE were granted suspended possession order. Disputed the entire agreement on the secret commission basis but got nowhere. 1.Previously SARNed GE and broker twice - no information provided about commissions. 2.Tried twice to get disclosure from GE/broker under CPR rules prior to hearing - No response. 3.Tried to get GE Solicitors to disclose - just ignored me. 4.Asked judge to order disclosure to ensure fair disposal of proceedings -He then told me the OFT Test Case on Bank Charges had dealt with Secret Commissions and that Hurstanger v Wilson was no longer precedent ? - He told me it was for me to prove a secret commission had been paid if that was my claim - because I couldnt adduce to him that a secret commission had been paid he was not prepared to order disclosure - tried to argue the case but basically he was not interested. Any ideas/comments how to obtain the details if GE wont supply any information.
  9. Like everyone else I am getting totally fed up with this now. But it seems that in reality nothing will be moving anywhere fast. Where is the judgement on historic terms ? Mr Justice Smith said this would not take as long as the original case ! This judgement seems no where in sight. I am also not convinced that the government is not intervening behind closed doors for a delay on this. Given the credit crunch and alleged financial instability that banks are apparently suffering (a load of old tosh - they can still increase shareholder dividends) I cannot see the government wanting them to suddenly have to refund millions of pounds. It is a bit worrying that the secretray of State can issue an intervention notice as evidenced by the HBOS/LLoyds Merger to stop the OFT pursuing any particular lines of investigation ? how do we know he hasn't interfered in the bank charges refunds issue. I for one am not happy with the idea of a 'superbank' its like feeding a fifteen stone bully meat pies ! My claim has been running now for nearly two years and I really need this money. I was eventually forced into an IVA and my life has been totally ruined by these greedy banks. Rant over. Not a particularly helpful post but I feel better.
  10. This is my proposed application for the stay to be lifted : Again please feel free to move it to the right place. APPLICATION FOR REMOVAL OF STAY 1. The claimant submitted a claim for the return of charges that were unlawfully debited by the defendants to the claimants account as a result of the defendants employees negligence and failure to act reasonably and ‘in good faith’. The claimant also requested the court to consider damages resulting therefrom. 2. A stay was granted to the defendants on the 15th Nov 07 pending resolution of the OFT Test Case in which the defendants were a party and on the basis that it would determine the issues of this particular claim. 3. The claimant seeks that this stay should now be lifted and the matter proceed to hearing for the following reasons : (a) The OFT Test case sought to determine whether or not charges made by those banks which were parties to the action and of which the defendant bank is a party, were unenforceable penalties and in the event that they were not, whether or not such charges fell within the scope of the Unfair Terms in Consumer Contract Regulations. Principally the continuance of the OFT test case concerns‘overdraft’, ‘unauthorised overdraft’ and ‘paid item’ charges. The claimant fully accepts that the Court has determined that such charges are not penalties and that the general issues regarding ‘overdraft’ and ‘paid item’ charges continues. (b) The claimant submits that this particular claim does not concern the debiting of ‘overdraft, unauthorised overdraft or paid item’ charges nor does the claimant or this action seek to obtain the return of such charges. © On that basis the claimant finds it difficult to see how or why the defendants are entitled to the continuance of a stay pending further resolution of the OFT test case and the ‘overdraft/paid item’ charges issue which are of no relevance to this claim.. (d) The claimant simply seeks the return of those charges unlawfully debited by the defendant, which are ‘unpaid item charges’, other losses suffered by the claimant as a result and general damages as a result of the defendants negligence, failure to act reasonably and ‘in good faith’. The claimant would assert that even though the OFT test case continues with regard to the ‘overdraft’, ‘unauthorised overdraft’ and ‘paid item’ charges the matters regarding ‘unpaid item’ charges i.e those within this particular claim have been firmly determined : Extracts from Mr Justice Andrew Smith approved Judgement (OFT v Abbey National and 7 others dated 24th April 08) 79. This does not mean that the Banks are under no contractual obligation to customers when they receive a Relevant Instruction. The terms of the seven Banks which make reference to a customer making a request in these circumstances, also refer to the Bank’s response to it, and it seems to me that the implication of their terms is that they are obliged to deal with Relevant Instructions in accordance with proper banking procedures. They have a discretion whether or not they should pay in accordance with a Relevant Instruction, but they would be in breach of contract if they rejected it arbitrarily or capriciously or in bad faith. This is because, as it was put by Leggatt LJ in Abu Dhabi National Tanker Co v Product Star Shipping Co Ltd, [1993] 1 Lloyd’s Rep 397 at p. 404: “Where A and B contract with each other to confer a discretion on A, that does not render B subject to A’s uninhibited whim. In my judgment, the authorities show that not only must the discretion be exercised honestly and in good faith, but, having regard to the provision of the contract by which it is conferred, it must not be exercised arbitrarily, capriciously or unreasonably.” (The limits of this principle have been discussed in subsequent authorities: see Paragon v Nash Finance, [2001] EWCA Civ 1466, [2002] 1 WLR 685 at para 38 per Dyson LJ, Lymington v MacNamara, [2007] EWCA Civ 151, [2007] 2 All ER (Comm) 825 at paras 44-45 per Arden LJ, Socimer International Bank Ltd v Standard Bank London Ltd, [2008] EWCA Civ 116 at para 66 per Rix LJ. The precise ambit of any obligation of this kind is not important, nor is it necessary to explore in this judgment what is required in order for a bank to deal 370. There can be no fixed rule as to whether or not distinct and preliminary acts done by a seller or supplier with a view to supplying or deciding whether to supply the benefit which the consumer ultimately seeks are “services” within the meaning of the 1999 Regulations. Sometimes where the customer requests the preliminary or preparatory act (for example, an architect is engaged to produce preliminary drawings), that clearly will be a service in its own right. Equally clearly, the provision of a service might not necessarily provide the consumer with the benefit that he seeks: a doctor might fail to cure but he still provides medical services. But in these cases it is at least easy to see that something is “supplied” to the consumer. In the case of the customer giving a Relevant Instruction, the customer is seeking payment in accordance with it, not that the Bank simply considers making payment, and that is reflected in the terms of the seven Banks (other than Nationwide) whose terms are drafted by reference to a request (or deemed request) on the part of the customer for an overdraft. In view of this and given that the customer receives no actual benefit from his Bank considering his instruction or request for payment and declining to accede to it, I am unable to accept that what the Bank does when it deals with a Relevant Instruction upon which it does not make payment is properly described as “services” and unable to accept that anything can properly be said to be “supplied” to the customer. Moreover, even if the Banks’ processes of considering and processing Relevant Instructions short of paying them, or with a view to deciding whether to pay, could, in any sense, be described as services supplied to the customer, the real and essential service supplied by the Banks under their contracts with customers is that of paying upon the customer’s instruction, and the Banks’ procedures whereby they deal with Relevant Instructions before making payments or when they decide not to pay are ancillary to and incidental to the service of paying in accordance with the mandate. 371. I should add that it was argued by some of the Banks that when a Bank decides not to pay upon a Relevant Instruction, it provides a service, at least in some cases, by way of informing the customer of the position. The decision might involve the Bank in other procedures: for example, returning a cheque through the clearing system in accordance with the rules of the clearing house. These activities, in my view, are no more than the incidental consequences of the Bank’s decision, and I am unable to regard them as services supplied to the customer. Further, on any view they are, again, ancillary or incidental activities. 372. I therefore accept the OFT’s submission that if a Bank declines to pay upon a Relevant Instruction, it supplies no, or no relevant, services by way of considering, processing or otherwise dealing with it. The specific services argument 402. The Banks’ specific services argument is that each of the Relevant Charges is the price or remuneration in exchange for the services or a service supplied in connection with a Relevant Instruction given by the customer or by way of the Bank’s response to it. Here it is necessary to consider each category of Relevant Charges separately: despite Mr Doctor’s submission to the contrary, I see no reason that either all four of the OFT’s categories of Relevant Charges are assessable for fairness or none is: after all, the OFT does not suggest that the adequacy of all charges or remuneration that the Banks make of their current account customers are to be, or should be, assessed for fairness. 403. For the reasons that I have already explained, I am unable to accept that the Banks supply customers with any services within the meaning of the 1999 Regulations when they refuse to pay upon Relevant Instructions, and it follows that I reject the specific services argument as far as Unpaid Item Charges are concerned. However, when payment is made, the Bank supplies payment services by way of paying in accordance with the customer’s mandate and supplies lending services. The Banks submit that Paid Item Charges and Guaranteed Paid Item Charges are paid in exchange for both payment services by way of making payment in accordance with a Relevant Instruction and lending services by way of an allowing an unarranged overdraft. (They would add that they are also paid in exchange for processing the customer’s Relevant Instruction, but I have rejected their argument that that in itself constitutes the supply of services.) 4. Accordingly it is respectfully requested that the stay granted on 15 Nov 07 be removed. I certify that the particulars contained in this application are true to the best of my knowledge and belief.
  11. I am a little confused now having read the judgements and the penalty charges forum pages. Where items are returned unpaid, the OFT initial judgement appears to state that 'no service' has been provided, in which case the charges incurred for 'unpaid items' i.e charge recall so/dd, seems to have been firmly decided. As far as I can see the OFT and the court is now concentarting solely on 'overdraft' and 'unauthorised overdraft' charges. In my case I have never been charged any overdraft or unauthorised overdraft 'fees', since they 'always' returned the items 'unpaid' hence I never went overdrawn. All my charges are therefore in respect of items that were 'unpaid'. Am I being thick here - or should I now be applying for the 'set aside' to be lifted on the grounds that : (a) I am only claiming a refund in respect of charges for those items that have been returned unpaid. (b) That the judgement on the issue of 'unpaid item' charges has already been determined i.e that no service has been provided. ©That the continuing OFT test case is now irrelevant to me. Maybe I have misread this - someone please put me right if that is the case. If not there must surely be lots of people in the same position. I have posted in this thread because I think this is a general issue regarding the OFT Test case that needs to be clarified - anyone who is more computer literate feel free to move it to the right thread. Regards
  12. greedfighter

    HSBC

    Urgent : Do not give out any details to any person offering to claim back bank charges from an unsolicited phone call. This has recently been notified as a phishing type [problem] : the relevant fraudsters will try to obtain your personal and bank details ' in order to reclaim your charges' then lo and behold you will find your bank acount emptied and your details used for all sorts of fraudulent purposes.
  13. Hi, I am still looking but look at the OFT Debt Collection Guidance - Final Guidance on unfair business practices Jul 2003 (Updated Dec 2006) which is the current edition. All in all its good reading anyways and simple and straight forward (i.e not heavy) But Chapter 2 section 7 (Charging for Debt Collection) might help somehow while youre arguing it out. I will keep looking for the other bit. Even if it doesnt immediately help the information is good info in relation to Debt Collection Company activities and they hate it when you start referring them to it - they get sort of all lost. I cant do a link - Im a bit thick in that respect when it comes to computer stuff.
  14. Hi everybody, My internet has been down for the last two weeks, fixed today though. I agree with midge, if they have reduced the charges to me this means that they must have thought they were sticky to start with. I agree you should pursue further breakdown and ask them to justify- ask for the lot - £15 quid a phone call seems a bit excessive for two or three minutes work perhaps and unless any specific debt collection costs are stated in the agreement I think they are unrecoverable ( I seem to remember reading somewhere that such costs are normal business overheads that should generally be calculated into their overall lending criteria) especially if they are in house. I will try to find the relevant ruling over the next few days
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