Hi Dellboy,

There are some second charge lenders out there who have an unpublicised policy of withholding action if there is no equity in the property as they would stand to lose not only the original loan, but also the costs spent on enforcement.

They will make a big fuss when you first fall into arrears as they want to try and keep you paying but the letters they send are generally standard and they often operate diallers to make large volumes of calls. If you get further into arrears and clearly don't have the money as you haven't responded to their threats with payments then they will probably undertake an assessment of whether there is any equity and it is worth bringing proceedings. Possibly in your case they have gone through this sort of process and come to the conclusion there is no equity so they sitting back hoping for an increase in house prices.

Beware that they may come knocking when there is equity in the future.

If you have got equity now then I am at a loss to explain their behaviour!

KC

They only say they are not regulated with Unregulated loans over £25,000 which were taken out before the new limits were lifted. I have a boyfriend who works in Swift so I get a bit of feed back about what's goin on in there. You peeps keep him working late! I've got a loan with them too so it's weired hearing him talk about all this and you peeps giving them hell all the time I am paying their charges as well.

 

I can't say too much as you will understand, but just keep up what you are doing he doesn't like his job anyway, and I think they are abunch of **** for what they do to peeps in trouble.

 

Keep working on their legal team and cut them off from using their barristers. There's one bloke in there who seems to run things and I think he's creepy knowing what he's doing, gives me the creeps every time I meet him. My boyfriend said when he's not around the place is much nicer. Yesterday he said he was out in Tunbridge I think he said, something like that anyway and the office was much nicer.

 

Killerschick,I think I might know you. Do you think the OFT will just fine them or take away their CC license ? 1st is mortgages and the FSA are already dealing with them but inside Arcadia rumours are peeps are looking for jobs....what's your take on it?

Hi spot,Interested to hear that we might know each other (and curious as to how?), send me a message if you want to tell me who you are in real life and how you know me (obviously don't post it on the forum!). The OFT does not have the power to fine a business straight out like the FSA, they can only impose fines for breaches of requirements but first they would need to impose requirements. The public register (which you can access here http://www2.crw.gov.uk/pr/Default.aspx the licence number is 391618) shows that the OFT are Minded to Impose Requirements so I guess that's what they are trying to do rather than take away the licence. The OFT have got requirements against other businesses in the past and details are on the OFT website here http://www.oft.gov.uk/OFTwork/credit/enforcement-action/#named1 which gives an idea of the sort of things they're used for.KC

Hi Janis,

It's not entirely clear what you're asking here which is maybe why you haven't had a response.

You are currently paying in excess of your contractual payments but this is not an arrangement that has been agreed by GE. Is this the amount required under a suspended possession order? Or is it just an ad hoc arrangement by which you pay £1000 without any particular basis for it?

If the arrangement has not been agreed by GE they are likely to be adding monthly charges to your account so it would be wise to get the arrangement on a more formal footing to avoid this. You can either go back to court and apply to vary any possession order that has previously been granted in which case you will need to present your financial position to the court to prove that the amount you are offering is reasonable in that you can afford it and that you cannot afford more. There will be a court fee for this and if GE send someone to the hearing they will more than likely add costs to your account so it could be an expensive way to resolve matters.

Alternatively you can negotiate with GE and it sounds like they are willing to consider options from what you have said. Perhaps you are seeking advice on whether you have to send them your bank statement and the answer is 'no' but equally they don't have to refrain from taking possession of your property if they have an outright order or you are paying less than you should under any suspended possession order, so a bit of give and take is probably a good way to go. They will want to see your bank statement to see that you are not paying unsecured credit in preference to the mortgage/secured loan or spending all your money in an inappropriate way such as gambling (I am in no way suggesting you might be doing anything of this nature but as someone who has in the past worked for both mortgage companies and the CAB, I've seen all sorts!). I would advocate communicating with GE but others may have a different view and recommend doing everything through the courts, ultimately it's your decision. If you can agree an arrangement with them and maintain it, then they should (according to the tariff of charges published on their website) waive the monthly arrears fee of £40.00. They probably won't waive or reduce interest as it's a secured loan and it's pretty uncommon for secured lenders to waive or reduce interest in general.

I hope this helps address the issues you have, but if there's anything specific you may get more of a response if you ask more specific questions.

KC

Hi borolad

Sorry to see you've had no response to date, I know a little about this from mortgage trade press etc. According to statements made in their latest accounts, Swift (Swift 1st Limited and Swift Advances plc) are subject to investigations by both the FSA and OFT. Details were reported in the mortgage trade press, you can read more here:- http://www.mortgagestrategy.co.uk/distribution/swift-investigated-by-fsa-over-arrears-handling/1023883.article

Nothing is concluded, contrary to what some may be believe, the FSA have not fined Swift or announced any finding against them at all. If you pay attention to the detail of what is said in the accounts (and quoted in Mortgage Strategy), £9.4million has been set aside to deal with the FSA investigation as a whole. £1.4million has already been incurred, probably on legal expenses etc whilst £8million has been set aside for a potential fine, legal costs and costs of any redress programme. The good news there is that it looks like there might be some redress to consumers, but the bad news is that it will only be to Swift 1st Limited customers. The FSA only regulate first charge mortgages so their investigation will only deal with Swift 1st being an FSA regulated company and the customers with first charge mortgages.

The OFT case deals with Swift Advances plc and according to the information in Mortgage Strategy and on the public register of consumer credit licensees it involves the imposition of requirements. The OFT has imposed requirements in the past such as on debt collection businesses in relation to practices which were in breach of guidance and on banks in relation to the unfair use of charging orders. The OFT don't have the power to order redress to consumers and requirements are intended to prevent a business doing something the OFT is unhappy with in future, for more about the OFT's enforcement work see their website - http://www.oft.gov.uk/OFTwork/credit/enforcement-action/. If the OFT successfully imposes requirements I expect this will be publicised as this is what has happened in the past. However, if the requirements are not imposed there may not be any publicity so if you want to keep an eye on the progress on the case check the public register here:-

http://www2.crw.gov.uk/pr/Default.aspx

Swift Advances' licence number is 391618, just to make it easier for you to check because it can be tricky to search by the name of the organisation.

Hope this is useful.

KC

Hi Mr ZI'm sorry to say that they are absolutely right in this instance.London Scottish Bank plc went very publicly into administration in December 2008 as a consequence of their failure to meet the FSA's capital FSA's capital requirements. You can check Companies House records to confirm this or just Google it and you will return plenty of press coverage from the time.I have to admit I wasn't sure of the position on suing companies in administration but after a bit of research I found that the moratorium on legal proceedings against companies in administration is found in the Insolvency Act 1986 (paragraph 43(6) of Schedule B1):-43 (1)This paragraph applies to a company in administration.(2)No step may be taken to enforce security over the company’s property except—(a)with the consent of the administrator, or(b)with the permission of the court.(3)No step may be taken to repossess goods in the company’s possession under a hire-purchase agreement except—(a)with the consent of the administrator, or(b)with the permission of the court.(4)A landlord may not exercise a right of forfeiture by peaceable re-entry in relation to premises let to the company except—(a)with the consent of the administrator, or(b)with the permission of the court.(5)In Scotland, a landlord may not exercise a right of irritancy in relation to premises let to the company except—(a)with the consent of the administrator, or(b)with the permission of the court.(6)No legal process (including legal proceedings, execution, distress and diligence) may be instituted or continued against the company or property of the company except—(a)with the consent of the administrator, or(b)with the permission of the court.[F2(6A)An administrative receiver of the company may not be appointed.](7)Where the court gives permission for a transaction under this paragraph it may impose a condition on or a requirement in connection with the transaction.(8)In this paragraph “landlord” includes a person to whom rent is payable.]Whilst you can't bring proceedings in court you may still be able to take your complaint to FOS if you are not happy with the final response from LSB. However, FOS's approach to claims relating to refunds of charges tends to look at whether the business acted in accordance with information it gave the customer i.e. were the charges imposed were in accordance with a tariff or other advance notice? FOS doesn't tend to go behind the tariff to establish whether the charge was a true reflection of the cost incurred by the business. That's just in my experience and every case is different and will be looked at on its own merits. If nothing else you will have the satisfaction of knowing LSB will have to pay a case fee of £500.00. Tactically, if your claim is for less than the £500 case fee it is certainly worth threatening FOS because they may be keen to settle to save money.Best of luckKC

Given that she's a politician herself (Tory councillor in Braintree http://www.braintree.gov.uk/Braintree/councildemocracy/Councillors/ClaireSandbrook.htm), is she accusing herself of failure? She certainly doesn't mention much about educating the public on the consequences of not paying debts in her profile!

Hi mag60,

If you are currently in a debt management plan it is probably not a good idea to be looking at borrowing more money and securing it against your house but there are lenders out there who still deal with people with poor credit. These sort of lenders generally do not deal direct with the general public but accept applications only via brokers (who will charge you 1-2% of the loan value for arranging it). The interest rate will be as high if not higher than most unsecured credit and you risk losing your home if you default but if you still want to go ahead (and I hope it is clear that I strongly recommend that you do not) I would suggest googling 'secured loan' to find a broker.

KC

Found an interesting judgment on Bailii while looking for any cases involving Swift (sadly, no successful CCA S140 actions) . Link below together with the full text. Good news for anyone wanting to defend possession proceedings whose property has been vested in the trustee in bankruptcy.

http://www.bailii.org/nie/cases/NIHC/Ch/2011/2.html

Swift Advances Plc v McKay & Anor [2011] NICh 2 (10 February 2011)

DEENY J

[1] This judgment relates to the proceedings issued by the plaintiff against these two defendants. The circumstances of the two defendants are very similar. The chronology is not without its complexity. This judgment will therefore deal principally with the chronology regarding Michael Gerald McKay. In so far as there are any slight differences with the facts relating to Mr Dalrymple they are not material to the decision.

[2] The point at issue is a relatively novel one as to the right of these two former bankrupts to defend possession proceedings brought against them by way of an appeal from the Master to the High Court in circumstances where they no longer have a proprietary interest in the dwellings in question and where their trustee in bankruptcy (and former solicitors) purported to withdraw the appeal.

[3] The matter arises in this way. On 6 November 2008 the plaintiff issued a summons against Mr McKay seeking delivery by him to the plaintiff of the premises which consisted of a dwelling house. Mr McKay lives at that dwelling house with his wife and three teenage children.

[4] By originating summons of 7 July 2009 the plaintiff brought possession proceedings against Mr Dalrymple in respect of premises. Again this was a dwelling house, in which Mr Dalrymple resides with his wife and four children.

[5] In both cases the plaintiff had advanced substantial sums of money to the defendant on repayment terms. In both cases the defendants were in substantial default in regard to the monies owed. The loans were secured by way of charges, the plaintiff contends, on the two dwelling houses in question. A firm of solicitors entered an appearance for Mr McKay on 19 November 2008 but it is clear on the papers that by 15 January 2010 at the latest his solicitors were Messrs Walker McDonald. That firm had entered an appearance on behalf of Mr Dalrymple on 29 July 2009 and acted for him thereafter.

[6] On 22 July 2009 the plaintiff's then solicitors served a notice of appointment on Mr McKay requiring his attendance before the Master on 16 October 2009 and they served with that an affidavit of Mr Michael Bennett supporting their claim for an Order for possession because of default in payments. On that date the Master adjourned the originating summons to 24 November 2009 but made two relevant orders in addition. First of all, he ordered that Brian F Walker, by then the trustee in bankruptcy of the first defendant's estate, be added as defendant. This followed Mr McKay's adjudication in bankruptcy on 1 April 2009. Furthermore the Master ordered the second defendant i.e. Mr Walker, to file and serve an affidavit in answer on or before 30 October 2009. Similarly Mr Dalrymple was declared bankrupt and Mr Walker became his trustee in bankruptcy and similar orders were made by the Master. On 24 November 2009 the matter came back before the Master who again ordered the second defendant i.e. Mr Walker, to file and serve an affidavit, this time before 16 December 2009, because none had been filed, and he adjourned the hearing of the summons to 18 December.

[7] Such an affidavit was filed but not until 15 January 2010. In that affidavit Mr Walker briefly indicated concerns that Mr McKay had both about the changing identities of the plaintiff and its right to rely on the charge and in addition about whether the plaintiff's loans complied with the provisions of the Consumer Credit Act, 1974. The plaintiff responded to these matters with an affidavit of Mark White filed 16 February 2010 and again, for some reason, on 19 February 2010. One appears to be a draft of the other. The matter came back before the Master on 17 May 2010. A period of some 3 months had elapsed from the plaintiff's affidavit without any response from the defendants. In particular they had not responded to Mr White's complaint that the allegations of breach of the Consumer Credit Act had not been particularised. On 17 May Master Ellison ordered the second defendant i.e. Mr Walker to pay the plaintiff's costs to be taxed if not agreed and paid as soon as possible. He then adjourned the matter to 14 June. On 14 June no further affidavit had been provided. The Master then again ordered the second defendant to file and serve such an affidavit, no later than 21 June and again ordered the second defendant to pay the plaintiff's costs of and incidental to the adjournment to be taxed forthwith if not agreed and paid as soon as possible.

[8] In a subsequent affidavit of 15 September 2010 Mr McKay paints a most unhappy picture of confusion on the part of his instructing solicitors and/or counsel instructed on his behalf. As this affidavit has not been addressed by the persons concerned I shall not set out these criticisms in detail. Suffice to say that it appears from the court file that the affidavit required by the court was only filed on 29 June and not by 21 June as ordered by the Master. Furthermore although Mr McKay's case related to documentary evidence which he himself had garnered and although it was necessary to respond to the case being made by Mr White on behalf of the plaintiff there were no exhibits attached to the affidavit. Mr McKay has averred that it in any event the draft failed to deal with many of the points which he himself had identified. On the papers before me I accept Mr McKay's averments that even on the day of the hearing the Master kindly adjourned the matter twice to allow Mr McKay to try and put the affidavit before him and locate his counsel who was meant to be appearing on his behalf, but that gentleman was unwilling to appear. It is not surprising that in all the circumstances the Master ultimately granted the order sought by Swift Advances plc.

[7] Without going into the matter in detail a similar picture emerges from the affidavit of Mr Dalrymple and the court file. In the events orders for possession were made in respect of the homes of both Mr McKay and Mr Dalrymple by the Master. I make it clear that they were not critical of the Master in so doing in all the circumstances and in my view no criticism can be made of him.

[8] Without ruling on all the criticisms of Walker MacDonald I conclude for the reasons outlined in the preceding paragraphs that the cases were not properly presented at and before the Master's court.

[9] It may be that the solicitors accepted that, as they agreed to lodge a Notice of Appeal. In fairness to them they say that they agreed with the present appellants to submit the papers to counsel and abide by his advice on whether the appeal was worth pursuing. They did so but I must observe that the counsel they chose, although an experienced junior, was not one I have ever seen appearing in the Chancery Court. His advice against appealing was not accepted by Mr McKay and Mr Dalrymple.

[10] The matter came before me on 16 September 2010. On that occasion an assistant solicitor in the office of Messrs Walker McDonald who had carriage of the matter sought to withdraw the appeal which had been lodged by the trustees. The present appellants were present and strongly objected to that course. Mr David Dunlop, who appeared for the lenders, contended that they had no locus standi. In the circumstances before me an appellant required the leave of the court to withdraw the appeal. If there is an issue of the authority for a solicitor to compromise proceedings, or, as here, by analogy, abandon them, but the dispute is brought to the attention of the court before any order of the court has been made the purported compromise does not bind the client. See Shepherd v Robinson [1919] 1 KB 474. Without at that stage having much information about the case I was uneasy abut the request being made by the assistant solicitor and in the circumstances leave was not given to withdraw the appeal but the matter was listed for argument on 24 September.

[11] In the interval Mr McKay realised that he was entitled to be discharged from the order of bankruptcy as 12 months from the making of the original order had ended with 1 April 2010 and he obtained such a discharge on 20 September 2010. Mr Dalrymple did likewise. Mr McKay put forward a further helpful and detailed statement of 23 September making his case that the loans were bad in law and that he and Mr Dalrymple should be entitled to have that heard by the court. On 24 September Mr Colmer of counsel instructed by Messrs Hewitt and Gilpin indicated that he had provisional instructions only for the two appellants. He sought time to consider the matter. By then the court had become aware that the Master had twice awarded costs against the putative appellant's solicitor/trustee and become aware of several of the other matters dealt with earlier in this judgment. I was concerned that they had not had a fair hearing contrary to common law and Article 6 of the European Convention. I granted a continuing stay on the possession proceedings on condition that the putative appellants either lodge their own Notice of Appeal or an application to be heard within seven days. At the request of the solicitors an extension of time was granted to allow an emergency legal aid application and the matter was listed for review on 8 November and hearing on 20 December. In the event legal aid was ultimately refused. However, at the request of the Pro Bono Committee of the Bar of Northern Ireland Mr William Gowdy very creditably agreed to act on that basis for Messrs McKay and Dalrymple. The hearing took place on 18 January 2011. I am obliged to both Mr Gowdy and Mr Dunlop for their able written and oral submissions and citation of authority.

[12] The sole issue at the hearing of 18 January was the question of the standing of Messrs McKay and Dalrymple to appeal where the action is one for possession of the appellant's principal residences which have vested in their trustees in bankruptcy. It will be recalled that under the legislation currently in force (Art. 265A of the Insolvency (N.I.) Order 1989, as amended) the bankrupt's property remains vested in the trustee in bankruptcy for three years from the date of the bankruptcy i.e. from 1 April 2009. Mr Gowdy therefore accepted that they have no proprietary interest in the property.

[13] The plaintiff respondents were also taking the point that the appeal had in fact been withdrawn by the trustee but Mr Dunlop at the hearing before me accepted that in the light of the actual orders made by the court in September 2010 and the authorities cited by Valentine Civil Proceedings: The Supreme Court; para. 20.34 that the original appeal had not been withdrawn and he did not pursue that point. For the avoidance of doubt even if that had not been the case I would have been minded to grant an extension of time to Messrs McKay and Dalrymple to pursue the Notice of Appeal, giving them an extension of time up to the date in which they in fact filed such an notice. As matters stand however that notice would appear to be superfluous.

[14] In seeking to address the remaining ground counsel agreed that a leading authority was that of the Court of Appeal in England in Heath v Tang [1993] 4 All ER 694. The court (Sir Thomas Bingham M.R., Steyn and Hoffmann LJJ) was dealing with a situation where two persons had lost an action and had judgment ordered against them. Following their failure to satisfy the judgments bankruptcy petitions were presented and they were adjudicated bankrupt. In one case the trustee was unwilling to appeal and there was no trustee in the other case. Both bankrupts applied for leave to appeal contending that they, as opposed to their estates, had an interest in the proceedings, because if they could have the judgments set aside they would be in a position to have the bankruptcy orders annulled on the ground that they should never have been made. The Court held that the general principle in bankruptcy was that following the vesting of the bankrupt's estate by statute in his trustee when appointed, the bankrupt was divested of and ceased to have an interest in, either his assets or his liabilities, and by virtue of statute after the making of a bankruptcy order creditors had no remedy against the property or person of the bankrupt in respect of any debt provable in the bankruptcy. Furthermore, in principle a bankrupt could not appeal in his own name from a judgment against him which was enforceable only against the estate vested in his trustee. However, a bankrupt was entitled to bring an action, e.g. for defamation or assault, which was personal to him and to defend an action seeking relief such as an injunction against him personally and to appeal. As Hoffmann LJ pointed out there was at common law, going back to Spragg v Binkes (1800) 31 ER 751, a jurisdiction in the court to supervise the actions of trustees in bankruptcy and such is now to be found in statute. It is therefore no great extension of this principle to conclude that a bankrupt could appeal in such personal matters. It follows, a fortiori, that a former bankrupt divested of his estate which is now vested in the trustee could also act in an appeal in connection with personal matters. I observe that that must be particularly so while there is ground for criticism, as here, of the actions of the trustee.

[15] Mr Dunlop relied on the judgment of Treacy J in Young and Another v Hamilton and Others [2010] NI Ch 11. The judge accepted there and ruled that indeed personal claims could be brought by a bankrupt. He went on at paragraph 25 to deal with hybrid claims:

"Some rights of action are hybrid – that is to say the cause of action gives rise to claims which are both 'personal' in nature and 'proprietary'. If, within a claim, both kinds of remedy are sought and the claim is therefore hybrid it falls outside the 'personal' exception and vests in the trustee – see Ord v Upton [2000] 1 All ER 193 at 197. Only those claims which are solely personal in nature will fall outside the bankrupt's estate – see also Fletcher Law of Solvency Sweet and Maxwell 2009 at para. 8-013 and Gowdy and Gowdy Individual Solvency – The Law and Practice in Northern Ireland SLS 2009 at paragraph 8.18 and 3(2) Halsburys Laws (4th Edition) (2002 reissued) at para. 436."

[16] Mr Gowdy did not dispute the rightness of that finding. His primary submission was that this was not a hybrid claim. The defeat of these possession proceedings by the creditor or plaintiff here will not re-vest this property in the plaintiff. The properties will remain vested in the trustee in bankruptcy with the range of powers open to him under the Insolvency Order 1989 as amended. I accept that submission. I accept that the residence in these dwelling houses by these men is a personal matter. It could hardly be more personal. To be dispossessed of their homes must be at least as personal a matter as having their character damaged by defamation. If support for that were necessary Article 8 of the European Convention on Human Rights could be prayed in aid.

[17] That is sufficient to establish locus standi on behalf of these men. If, of course, at a full hearing of this matter the plaintiffs establish the legal validity of their charges then they will be enabled to contend that it is necessary to protect their rights for an order for possession to be made against the appellants. Article 8 does not prevent possession orders in themselves but merely ensures that they must constitute a necessary and justified interference with the privacy rights of occupants and they must be according to law.

[18] Mr Dunlop sought to rely on the authority of Rochfort v Battersby and Others 9 E.R. 1139 (House of Lords) and James v Rutherford-Hedge [2005] EWCA Civ. 1580, [2006] BPIR 973 but in neither of those cases was the bankrupt in question in occupation of the premises concerned. Therefore their personal rights to their homes as here were not involved.

[19] In the circumstances I need not rule finally on Mr Gowdy's alternative submission that even if this were a hybrid claim the defendants would be entitled to appeal as they were defendants rather than parties acting as plaintiffs pursuing a cause of action, although that submission may be well founded.

[20] I therefore confirm my oral order that Mr McKay and Mr Dalrymple have locus standi to pursue the appeals on their behalf initially lodged on 5 July 2010.

As I said Andrew1/Sarah, it's just my view and I am happy to stand corrected either if others have had proven success with contacting first mortgage companies, or, if anyone knows of a criminal case being brought against Swift Advances plc in relation to the trading name issue.

Hi Junior,

The short answer is yes in theory the creditors can claim against any property you have including the house if in your name. In pratice the debts are not large and the costs and risks of them taking action may prevent them from doing so, particularly if you start paying again.

They can do this in several ways, the usual is to get a county court judgment and enforce by way of a charging order against the property. It is then possible to apply for an order for sale but for the amounts you are talking about they wouldn't stand much chance. You would also have plenty of opportunity to either defend the proceedings for the judgment or admit the debt and propose payment to prevent further enforcement.

An alternative is for them to make you bankrupt and leave the trustee in bankruptcy to deal with your assets to realise money for your creditors. For the sums you are talking about this would be an unusual course of action.

I would suggest compiling an income and expenditure form to make proposals to your creditors, whether or not they accept £10pm is likely to be based on what you have available to pay them and they will want details of your income and outgoings to assess this.

Hope this helps.

KC

Hi Maybelline,

Do you mean the Mortgage Code rather than MCOL? If so you can find more on the CML website here including the a link to the code which was supseded by FSA regulation:-

http://www.cml.org.uk/cml/policy/issues/111

The first thing you might notice about this is that it was voluntary so while your big high street boys, Nationwide, Halifax etc might have complied you are less likely to find compliance with the 'alternative' lenders. As most 'alternative' lenders dealt only with brokers they did not have the reputation concerns of the high street lenders so had very little reason to comply but you might get somewhere by quoting the code.

As to why claims managers shy away from unregulated mortgages rather than bringing claims under the UTCCR's? Just look at the major cases the Office of Fair Trading has taken to the House of Lords on UTCCR's - OFT v First National and OFT v Abbey National & others, they lost them both at tremendous cost and following very complex litigation which perhaps explains why claims managers are wary of these sorts of cases - the outcome is uncertain, the precedents are against them and the costs can be huge.

Hi Jacqui,

As Dougal says it was from a post by PKelly here: http://www.consumeractiongroup.co.uk/forum/showthread.php?284157-Swift-Advances.-Secured-Loan-Charges-reclaim-2&p=3266855&viewfull=1#post3266855 number 131 on this thread a few pages back. There was no template letter as far as I am aware unless one has been circulated by private message.

For what it's worth I don't think it's worth the price of a stamp to pursue this. In the unlikely event that your letter landed on the desk of someone at your first mortgage company who had an earthly what you were talking about (extremely unlikely as the Consumer Credit Act and consumer credit licensing regime are of no concern to most first charge lenders), they would have no reason to be remotely concerned as they have done nothing wrong and it would in no way affect their security.

I am quite happy to stand corrected if anyone's first mortgagee has got involved but from experience (admittedly many years ago before FOS) it would be the type of letter that got filed in the 'nutter' pile and got a response to the effect that the first mortgagee would not intervene in disputes with third parties, would seek to rely on their security and that security was unaffected.

I am not deliberately playing devil's advocate here but I wouldn't want to see you wasting precious time and resources raising an issue which is unlikely to benefit you. Concentrate on issues such as excessive charges, lack of transparency, poor communication, misleading information, poor administration and failure to show forebearance. These are things which you can and should be compensated for if they apply to you.

This is just my view and of course you should make up your own mind but just to clarify in relation to what PKelly says. It is 'alleged' by PKelly to be a criminal offence under Section 39(2) of the Consumer Credit Act 1974. It has not been 'found' to be a criminal offence in a criminal court (a very different prospect from the view of a judge in a county or high court), in fact, there is nothing to suggest that a criminal charge has been brought. It might seem straightforward on reading s39(2) of the Act alone but there are complex arguments concerning what constitutes 'carrying on business' under the Act and even what constitutes a trading name.

This sounds the same as another post I have responded to but nevertheless, the position is that if you do not comply with this latest court order by 14.1.11 then the lender will be able to apply for a new Warrant on 15th. This means you will get some notice of new eviction date.

Hi brigit,

On 14th April if you have not complied with the court order the lender can apply to the court to enforce the by way of a Warrant for possession i.e. they will need a new bailiff's appointment and you will be given notice of the date and time of the new eviction. I hope this gives you some comfort and breathing space, you might want to contact your local authority's homelessness department about procedures for being rehoused although they may not be able to do much until you have an eviction date.

KC

Hi Maybelline,

Prior to 31 October 2004 (known as M Day) when the FSA started regulating them, most first charge residential mortgages were completely unregulated.

There are some very exceptional cases which fell under Consumer Credit Act regulation but they are VERY rare due to the limits on the size of loans which the CCA covered. If you mortgage was CCA regulated it would say so on the agreement.

Other than that if any of the terms of the mortgage were particularly unfair you might be able to challenge them under the Unfair Terms in Consumer Contracts Regulations which were originally introducted in 1994 with later versions in 1999 and 2001, you can find them on the government's legislation website, just search 'legislation' (I would post a link but they never work for some reason). Or perhaps you might have a challege on the grounds of a broker having made misleading statements to induce you to enter the contract which could affect enforceability.

This is precisely why mortgages were brought into regulation in 2004, before that it was a free for all.

KC

Hi pdaddy,

You can check whether they are a registered claims management business on the dedicated government website https://www.claimsregulation.gov.uk/search.aspx . I've done a quick search and they certainly don't appear to be registered. If you do a search and they're not there it takes you on to a screen where you can report them to the Ministry of Justice and make a complaint so that might be another avenue for you to pursue.

KC

Hi MisterBuster,

I think you'll probably get getter advice in the sub-forum on local authority and council tax issues so I've reported your thread to be moved there.

Best of luck

KC

Hi Chloe,

I have seen another very similar thread and posted some advice there, rather than repeat myself you might like to have a look at it:-

http://www.consumeractiongroup.co.uk/forum/showthread.php?291035-Halifax-Repossesion-Circa-1992-Advice-Needed-Please

Perhaps you could do as the other CAG member has done and request more information using your rights under the Data Protection Act, particularly as you have been making payments but the creditor doesn't seem to have a record of it. Presumably Royal Sun Alliance were the Halifax's insurers under a mortgage indemnity policy and they paid a claim when the Halifax made a loss on the sale of your house. Is it possible that there are two sums outstanding, one direct to Halifax and one to Royal Sun Alliance? This might have happened if the Halifax were insured for a specific sum for example £10,000 but the loss was more than the sum insured (£18,000 in this case) so perhaps RSA are pursuing the amount they paid out under the indemnity policy while Halifax are pursuing the rest?

It's probably also worth checking with your bank exactly where that direct debit is going including any reference quoted to try and get the payments traced.

KC

Hi Andrew,

Please, please, please ignore fsb these people are just trying to profit from those in difficult situations and should be avoided at all costs.

As Cadbury suggests, get some free impartial advice about getting your financial position as a whole in order hopefully Payplan will help with this and work out what you can afford to pay to your mortgage and other debts.

If you want to keep your house, first priority should be paying the mortgage, forget the unsecured lot INCLUDING the 'together' loan, they can't make you homeless - at least not without getting a CCJ, then charging order, then order for sale which would take forever and gives you lots of opportunities to intervene.

Payplan will probably help you compile a financial statement which should show whether you can afford the mortgage and to clear the arrears. If you can, Northern Rock may then agree the terms for a suspended order to be granted at the hearing and as long as you pay you keep the house.

Maybe check back when you've spoken to Payplan and things are clearer.

KC

So sorry to hear of your situation brigit and hope things turned out OK as it is now a bit late to offer any assistance.

Unfortunately, it's not always in everyone's best interest to keep their property as they just end up eroding what little equity they have and walking away with debts instead of something to get them back on their feet. Measures have been put in place to offer homeowners experiencing difficulties some protection such as the pre-action protocol but it's just not possible to stop repossessions altogether.

I wish you well for the future.

KC

Sounds like a reasonable assumption, it would be a pretty negligent mortgage lender that didn't bother sending a representative to a repo hearing, it's more likely (particularly if the payment was last minute) they would have neglected to adjourn the hearing when it became clear they didn't need to go ahead.

Hi again Tom,

Priorityone raises an interesting point about the possibility of the debt being sold but I don't think it's relevant here and I'll explain how I've reached that conclusion.

I've had a look into Counselling Intermediary Services to see whether there might be anything in the theory that they could have purchased the debt and it's highly unlikely.

To give them their full legal name they are Counselling Intermediary Services UK Limited, they are registered under company number 06525481. Their business is stated as being financial intermediation on Companies House records and they have only been trading since 2008 which on the face of it looks odd when they have been collecting from you for 6 years. However, there was a previous business - Counselling Intermediary Services Limited registered under company number 03026629 which was struck off by Companies House in 2010 after appearing to be inactive since 2007. The two businesses have at least one common director, a Peter Fort so it looks as though one took over from the other. It would be interesting to know whether their correspondence makes it clear who you are dealing with or indeed quotes the full name of the business at all, although as we're not dealing with a CCA regulated account the trading name thing is not a major issue.

They made a bit of press in 2006 which made it clear they are agents for Halifax not the legal owners of the debt:-

http://www.guardian.co.uk/money/2006/may/20/moneysupplement3

Looking at their consumer credit licences (which is always quite useful and freely accessible here - http://www2.crw.gov.uk/pr/Default.aspx) they were originally granted a licence for company number 3026629 on 26.3.95 numbered 391549, they described themselves as a debt collection business and the licence did not cover lending which would be required by a debt purchaser - at least in relation to CCA regulated loans. The new company numbered 6525481 was granted a licence on 4.4.08, this time the nature of the business was described as mortgages and again, the category of lending was excluded. It's not conclusive because they don't need a licence to deal with unregulated mortgages and probably have one because they do other types of work as well but all the signs seem to suggest they are a DCA (or debt collection agency) NOT a debt purchaser.

Another tell tale sign that the debt is definitely still owned by Halifax is the statement in your first post saying the CIS threatened to send your debt back to Halifax for court proceedings to be issued if you didn't pay. If they owned the debt or it had been sold to anyone at any time they couldn't do this.

I doubt you'll get much response to the SAR, most of the information won't be held by CIS as they are not assignees and have only been involved for the last 6 years.

As is seems clear that the debt is still owned by Halifax/HBOS/Lloyds Banking Group or whatever they're calling themselves this week, CIS should be passing funds collected back to them and they should be the ones that are keeping a record of the balance. I would write back to Halifax expressing your dissatisfaction with their response to your SAR and their inability to provide a record of the transactions on the account and current balance. In light of this I would suggest you tell them you are ceasing payment with immediate effect and will only reconsider your position if you are provided with extensive evidence of any debt claimed. It may be worth adding that should they consider any further action without having provided evidence of the debt this will be vigorously defended.

Hopefully this will bring an end to the matter but you may want to go further and try and get money back. In which case you could perhaps total up what you have paid over the last 6 years and threaten them with a claim for this amount (ideally with evidence of the payments) on the basis that they have failed to establish the existence of any liability on your part. It depends what you want to achieve really, if you try to claim money back they will be more likely to put up a fight and try to find further evidence than if you simply say you are ceasing payment in which case they may write whatever is left off (if they even have a clue how much that is!).

KC

It does sound like it because they would be obliged to tell you if there was an eviction. At least you've got a bit of peace for the moment, maybe worth letting the lender know formally that you are there so you can be certain to be notified of any eviction date.

Hi swiftdunce,

Sorry to see that no one has replied as yet, I'll try to give you a few pointers.

As far as PPI is concerned some have claimed successfully that the sale of it led to an unfair relationship see Yates & Lorenzelli v Nemo, a summary of which is available here:-

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/unfair-relationships/yates-lorenzelli-nemo.pdf

But more recent and higher level cases have resulted in decision favouring the lender see Harrison & Harrison v Black Horse, full case here:-

http://www.bailii.org/ew/cases/EWHC/QB/2010/3152.html

so whether you have a case for making a claim for a rebate via the courts will depend on the circumstances of the sale and what you were told by the broker.

As far as I am aware (at least until the result of the BBA's judicial review of the FSA's decision that lump sum premium PPI sales were unfair to consumers is announced) FOS is still likely to find in favour of consumers who complain that they have been mis-sold PPI. Reasons for claiming that a policy was mis-sold include, that the broker suggested the loan was conditional on taking the insurance, the policy was not explained, the policy did not run for the full term of the loan, the policy was not suitable for the insured's needs e.g. if self-employed but paying for redundancy cover, you can find a lot more detail on the circumstances that the FSA though led to inappropriate sales on their website here:-

http://www.fsa.gov.uk/pubs/policy/ps10_12.pdf at annex 4 - Open letter listing common PPI sales failings, it is worth looking through this to see whether your sale might fall into one of the categories. If so then start by complaining to the broker who sold you the policy (if still trading) and Swift saying you want a rebate of the premium applied to your account along with a refund of any interest charged on the sum. If you do not get a satisfactory response you are then in a position to take your complaint to FOS.

There are others on CAG who advocate strongly that FOS should not be used and claims should be brought in the courts. I believe that the individual should decide for themselves what they feel comfortable doing. If you are claiming over £5000 through the courts not only will you have to pay to issue a claim but if you lose you will be liable for the other side's costs and no one can guarantee you will win. It is free to take a complaint to FOS and doesn't involve court procedures or hearings, everything is considered on paper evidence, therefore it poses less risk but the award may not be as much as a court and it is binding and the same issue cannot then be the subject of a court claim.

Good luck

KC

I think it was a High Court judge (HHJ Platts) sitting in a County Court which is probably where the uncertainty stems from. But I believe it's a County Court level decision in terms of how binding it is but is likely to be more persausive than a standard County Court level decision due to the seniority of the judge. It was cited extensively in Harrison & Harrison v Black Horse:-

http://www.bailii.org/ew/cases/EWHC/QB/2010/3152.html

at paragraphs 58 to 63, Waksman reached a different decision but distinguished the case on the facts.