Swift Advances. Secured Loan Charges reclaim

[overdone]

Has anyone ever succesfully reclaimed charges from Swift Advances. I had a secured bank loan with them and they charged £23.00 PER LETTER.

[Guest blackie]

I too have been charged £23.00 per letter. They seem to send them every other day. I would be really interested to know if anyone has ever been successful in reclaiming anything from this company.

[42man]

I believe somebody HAS reclaimed their excessive charges from Swift, it was just about to go to the high court and Swift pulled out and paid up the claimant.....do a search under Swift...they never send statements unless you ask, (and they charge) if you want a settlement figure you have to write to them (and they charge)....£250 for a bounced payment....!! They say I owe them £1,000 but they actually owe me £1,800 in excessive charges.....

[overdone]

Had this letter from Bob the Bankbuster.

 

Dear Overdone,

Unfortunately, your potential claim is more complicated than most of the banks current account penalty charges claims:

 

Whilst I think you probably have a strong case for claiming back some of the default charges, it would be difficult to isolate those from what may be legally defensible charges (Even though they are still probably immorally high). I feel it would be too complicated for me to be able to offer any realistic hope of a positive result in a reasonable time. Therefor, reluctantly, I have to decline the request to take this case on.

 

Sorry if you are disapionted with this.

 

You might want to try your local Citizens Advice Bureau to see what they might be able to do. I had an enquiry about helping some one with a problem with swift loans last year. I suspect that Swift Advances may be the same firm-so they probably have a bit of form in this sort of thing.

best wishes

Bob Egerton

Edited July 28, 2008 by overdone
typo

[Sparkie1723]

I can inform members that Swift Advances are currently under investigation by the OFT as to their fitness to hold a Credit License. This is a quote from a letter a friend of mine received from the OFT as they had reported Swift on the way they operated.

 

sparkie

Quote

“As you are aware, the OFT can and does take action in the interest of consumers generally, where there is sufficient evidence. Therefore, we will continue to monitor this traders fitness to hold a credit license. Thank you once again for taking the time to write to us about this matter”

[overdone]

I can inform members that Swift Advances are currently under investigation by the OFT as to their fitness to hold a Credit License. This is a quote from a letter a friend of mine received from the OFT as they had reported Swift on the way they operated.

 

sparkie

Quote

“As you are aware, the OFT can and does take action in the interest of consumers generally, where there is sufficient evidence. Therefore, we will continue to monitor this traders fitness to hold a credit license. Thank you once again for taking the time to write to us about this matter”

 

That may mean nothing. on 29 November 2006 I got a letter from Office of Fair Trading.

 

Dear Overdone,

 

Thank you for your recent letter.

 

I am sorry to hear the difficulties you have experienced. Unfortunately the Office of Fair Trading is unable to help you on this occasion, as we do not have the power to advise or assist individual consumers. Nor can we normally comment or take action on cases brought to us by individual customers. Our primary duties include the enforcement of competition law, the regulation of the consumer credit market through a liscensing system and the application of consumer protection in respect of matters that adversely affect the collective interests of UK consumers.

 

Your complaint has been registered on our database, and the information contained within may be referred to if the OFT decides to investigate this market in the future.

 

As you are aware, the OFT is currently looking at the issue of penalty charges for credit cards.

 

Please note that this does not currently include any other types of charges placed on a bank accounts or loans.

 

However, you may wish to consider contacting Consumer Direct.

 

You may also wish to consider contacting the financial Ombudsman Service.

[Guest blackie]

Do you think it would be worth me writing to the OFT, I had a letter from Swift saying if we were experiencing difficulties we should let them know and they would try to help. They wrote they may be able to:

Extend the term of the loan

Allow us to pay interest only for a time

or organise a complete remortgage.

As my husband was critically ill at the time, I wrote asking them to let us pay interest only for three months, I also enquired about a full remortgage.

I received a threatening phone call then from someone called Gerda, saying I might as well give up because in a few months time they would be repossessing my house. I told wrote immediately to Swift to register a complaint, a few weeks later I got some letter stating they do not offer any of the services they actually quoted in their original letter and were changing their style of letters. I do not wish to let this go and have written to them to advise that I intend to carry on my complaint. Anyone got any ideas, what I should do now.

[Sparkie1723]

Hi overdone

My friends received exactly the same letter from the OFT when they first complained about them, it was after he sent another letter with further information he got the second one saying that the OFT were watching how Swift Advances were operating, everyone who is not happy with Swift should report them to the OFT, the more complaints they get the bigger the file on them will be and get the OFT to Act quicker.

 

sparkie

[Guest blackie]

If we complain to OFT should we also complain to FSA, surely someone must be able to control these people. Why are these companies allowed to get away with so much, is is just the fact that no one seems to care enough. Everyone who has a complaint against Swift should register as soon as possible.

[overdone]

I am sending the claim template letter off tomorrow.

 

Arrears Letters and calls charges 598.00

Bounced payment charges 33.00

Default Charge 250.00

Post default collection costs 490.00

 

Total £1371.00

[Sparkie1723]

I am now helping the friends of mine against Swift Advances, because I believe that their agreement ( unregulated one) is completely unlawful and would be declared unenforceable.

They have made an absolute mess of the agreement and will not budge even though they were willing at first for Swift to alter it and lower the monthly payments.

 

But what Swift have attempted to do is explained in the letter I have written for them which has now gone.

They said they had applied for a possession order and the BXXXXXXS then

tried to pay off their First Mortgage with Abbey Bank without them knowing that is absolute unlawful and fraud by deception ….anyway I wrote this letter for them

I'll post a copy of their agreement on the next post.

 

sparkie

To

The Swift Legal Services

Ref IS/PI/GR1915/66838/A/JTR/1st

Dear Sirs,

 

We are in receipt of a letter from you dated yesterday 25th July 2008, within which you state that you have issued proceedings for an order to be made for the possession of our property namely xx xxxx xxxxx xxxx xxxxxx xxxxxx

We therefore await service of those court documents. Whilst we await these papers I will re-iterate our position, of which we have previously advised Swift Advances of, in all correspondence to them since April 2007, we have also made yourselves aware of many of the facts of our dispute with Swift Advances.

We have after making Swift Advances totally aware of our disagreements, taken every possible step a consumer can take in attempting to resolve the issue to no avail, the intransigent stance of Swift Advances and their abuse of their position, led us to make a complaint to the OFT, and finally to suspend all further payments on this agreement.

We have been forced to take this step due to this intransigence.

We have attempted to persuade Swift Advances to “ Put the Agreement Right” after pointing out that we believed it was an unenforceable agreement as it stood, and we were quite willing to have the agreement redrawn and the monthly repayments corrected, all to no avail.

That is no longer an option since the latest actions taken by Swift, to which, I will refer to later on in this letter.

In any court proceedings taken by either party to this agreement we will make the court aware of the following;

1.…..On entering the said agreement, we were led to believe that we had entered an agreement for a loan of the sum of £43,000:00 ( the total loan) repayments of which were to be over a period of 120 months at a rate of interest, although, it is unclear what the rate on this £43,000:00 ( the total loan) actually is, as it is not shown in the key information box where it should be in order to comply with the form and content of consumer credit agreements.

Having said that we accepted the rate shown elsewhere on the agreement. It is for this reason we believe that the monthly payments are incorrect.

2.…..We were led to believe that we could rely on Swift Advances and placed our full trust in Swift Advances to ensure that the monthly repayments were accurately calculated and correct, we have since discovered that they are not, and have attempted to have them corrected, we were quite willing to have this done.

3.…..We were also led to believe that Swift Advances would carry out what they stated they would do in section 3 at the bottom of the agreement, in the section “You should note the following”.

4.…..We were led to believe that this had been done in the letter of advise dated 4th April 2007.

With reference to the above 4 points we submit that we were misled and deceived into entering into this agreement by the misrepresentative statements made in the agreement and in the letter referred to.

We also submit that the conduct of Swift Advances in the operation and performance of the agreement has been far beyond reasonable behaviour and that Swift Advances have abused their position in all aspects of it refusing to even consider that they have made serious mistakes on the agreement, and further stated that there are none.

We submit that by failing to adhere to what is stated in the agreement Swift Advances breached the agreement at inception, and have voided the said agreement in doing so, by not doing what they said they would do, and not doing what they say they had done.

Furthermore by submitting incorrect financial details to all three credit reference agencies, have breached the Fourth Principle of the Data Protection Act 1998, which states;

“Personal data shall be accurate and, where necessary, kept up to date”

“Data are inaccurate if they are incorrect as to any matter of fact”.

Without doubt the data supplied by Swift Advances concerning the financial details of the agreement is inaccurate.

Swift Advances then proceeded and issue two separate default notices, these notices also contained inaccurate information and do not comply with the OFT guidelines of the format of default notices and are therefore invalid.

I now come to the latest actions of Swift Advances that are not only unacceptable, but are an absolute unlawful total abuse of power and position, another breach of the Data Protection Act namely the First Principle.

It is also an invasion of our rights to privacy under Article 8 of the European Convention on Human Rights, (the right to privacy of home life and personal correspondence) which is also embedded in the UK Human Rights Act.

I refer to the attempt by Swift Advances to obtain information from Abbey Bank our first mortgage holder about our mortgage, information that they have no right to request or obtain.

His was closely followed by a further attempt to obtain a redemption figure for that said mortgage with Abbey Bank.

In a letter received also today from Abbey Bank, they appear to believe that we have requested a redemption figure and have supplied us with that redemption figure and details of how it can be redeemed.

On contacting Abbey Bank this morning and explaining that we had made no such request, we were informed that Swift Advances had made the enquiry who stated they were making it on our behalf, that is totally untrue, and is a totally false statement made to deliberately mislead Abbey National. We have made that perfectly clear to Abbey Bank no such request was made to Swift Advances and no authority given.

They have advised us that they have not, and will not supply any details of our mortgage to any third party without the specific signed consent of both myself and my wife

They have also advised us that they have made it quite clear to Swift Advances that they have no authority to request such information.

They have also advised us that they have added a note to our file of this fact, and the records of these enquiries by Swift Advances.

They have also confirmed that should we request the details of these enquiries they will supply official details and confirmation of such.

They have also advised us to make serious strong complaints to the necessary various bodies, such as the ICO, the OFT, the FLA, and the FSA.

This I can assure you I will be doing and sending each authority a letter containing all I have submitted to you.

With reference to the OFT, as I have already submitted a complaint to them about Swift Advances and have had replies and that my complaint has been allocated a complaint number, I am certain that this latest series of incidents will certainly be of interest to them, and will be added to my complaint file, I quote from a letter from the OFT dated 21st September 2007

Quote

“As you are aware, the OFT can and does take action in the interest of consumers generally, where there is sufficient evidence. Therefore, we will continue to monitor this traders fitness to hold a credit license. Thank you once again for taking the time to write to us about this matter”

I will let you draw your own conclusions from this, but it does appear that Swift Advances are already under scrutiny from the OFT.

 

I submit that the judge on reading this letter from the OFT, will consider our evidence and submissions more deeply and put them under very close scrutiny .

I am sending this letter as an e-mail attachment, I will also be sending a copy by recorded delivery.

I suggest that Swift Advances act on this letter as their name suggests “swiftly”

I will with hold my letters of complaint to all the afore mentioned bodies, and put the following to Swift Advances, that they;

1... Cancel the agreement immediately, and write the sum of £43,000:00 off.

2...Cancel the land registry charge details on our property.

4...Return all monies paid by us to date, plus interest at initial contract rate 9.84%.

5...Offer a substantial sum of further compensation for the incorrect entries on our credit files and the damage that data is causing to our credit score and financial credibility, the further intrusion into our financial affairs with Abbey Bank and for the deceptive methods used by Swift in the attempts to obtain that information from Abbey Bank .

6...Remove immediately and completely all data and information supplied wift Advances from the files of all three credit reference agencies. This incorrect data is causing us both distress alls and vexation.

7...That all this is done within 7 days of the date of the receipt of the recorded delivery of this letter.

Failure to do all of this will result in us taking action via the courts to obtain all of the above without further warnings.

In our submissions to the court we will submit that the actions taken by Swift Advances concerning Abbey Bank, by attempting to redeem our first mortgage without our knowledge and consent were nothing but a malicious, secretive attempt to obtain sole ownership of our property, and an attempt to do this by deception stealth, and covert unlawful actions.

We will submit that this was an act to gain an extremely advantageous position to gain possession of our home, and place us in a very serious disadvantageous position that can only be described as an act of deliberate fraud by false representation and deception.

We believe that all our submissions placed in the hands of learned Counsel, will result in Swift Advances will be severely dealt with by the Court, and the agreement will be declared void.

Swift Advances can avoid this by agreeing to the proposals in the paragraphs numbered 1 to 7

Finally in line with the box headed on the agreement….. Important --Use of your personal Information

Will you arrange for a copy of this signed form as stated in that box to be sent to us for our records , as we have never received one

Yours sincerely

Edited July 30, 2008 by Sparkie1723

[Sparkie1723]

 

 

Edited July 30, 2008 by Sparkie1723

[overdone]

It never entered my head, when I sold my house to pay off my secured loan, to check that the interest was what should have been charged, along with early penalty charges. I would not know where to begin.

Swift had also advised, ".....Loan was an unregulated credit agreement, The Financial Ombudsman service does not actually have jurisdiction to deal with your complaint against Swift Advances." It then mentions FISA can.

 

There was a big issue on TV some years ago that a lot of mortgages etc had miscalculated amounts of interest applied. So much so that a firm had set up soley for the purpose of checking interest charged on mortgages. Does anyone remember the name of the firm?

I would love someone to go through my case.

Edited July 30, 2008 by overdone

[Sparkie1723]

it never entred my head, when I sold my house to pay off my secured loan to check that the interest rate was what should have been charged along with early penalty charges. I would not know where to begin.

 

You can still do it matey if you kept a copy of your Swift agreement and claim any over payments back

 

sparkie

[Guest blackie]

You really sound as if you know what you are doing. But I have a feeling my credit agreement looks very familiar. Can you suggest what I should do, or if you could recommend solicitors who may help. I work a 44 hour week, and have a poorly husband,s o any help would be appreciated.

[Sparkie1723]

You really sound as if you know what you are doing. But I have a feeling my credit agreement looks very familiar. Can you suggest what I should do, or if you could recommend solicitors who may help. I work a 44 hour week, and have a poorly husband,s o any help would be appreciated.

 

Hi Blackie,

 

Compare the agreements closely, check to see if they added the fees and charges "OUTSIDE" the agreement i.e. is the total loan shown in the top box less than the start total entered on your credit file on Swifts first entry, is it different?

 

Hope you can follow what I mean

 

sparkie

[Sparkie1723]

Swift have sent my friends a application for possession on their house,

 

I have drafted a defence for them and they had a free consultation with a solicitor and showed "her" the draft defence and asked if she would represent them.......she said what do need a solicitor for with that defence:cool:....that was nice of her.

anyway here 's what Ive drafted for them don't know what has happened to some bits in the post ..for some reason can't chage the size ...hope it can be followed.sparkie

 

 

DEFENCE

 

 

1 The Defendant’s admit that on the 4th April 2007 they entered into an unregulated loan agreement with the Claimant for the sum of £4300:00 which is shown and stated to be the total loan amount as shown in the Key Financial Information box shown on the said agreement listed as exhibit 1 attached to Claimants statement 1.This loan was secured by a charge on their property, namely XXXXXXX XXXXXXXXXXXX XXXXXX

 

 

2 The Defendant’s submit that they were led to believe that the rate of interest at the start of the loan was 9.84% APR, although as it is not shown in the Key Financial Information box and due the fact that the Claimant states in paragraph 6 (g) (i); of the Particulars of Claim that the interest rate at the start of the loan was 10.5% APR. The Defendant’s submit that these conflicting rates are not clear by any means and are now even more confused than they were prior to this claim and therefore put the Claimant to strict proof as to which rate actually applied at the start of the loan.

 

 

3 The Defendant’s submit that;

(a) Even if either of these rates were applicable at the start of the loan shown as the “total loan” on the said agreement the monthly payment would not be £616:32 per month.

 

(b) Had the rate been 9.84% as shown on the agreement the monthly payment would have been £554:45 and;

 

© Had it been 10.5% as stated by the Claimant it would have been £578.68 per month.

 

(d) The monthly repayments shown to be payable on the agreement for the total of £616.32 for the stated “total loan amount” calculates at 11.84% APR or thereabouts.

 

 

4 The Defendant’s submit that immediately on realising these initial figures and calculations were incorrect, they contacted the Claimant pointing outthe errors and requested that they be re-adjusted, and were quite willing to have that done, and submit a copy of a letter from the Claimant refusing to do this, attached to this Defence marked as Document A.

 

 

5 The Defendant’s refer to again to this document wherein it is also stated That, the agreement follows the format of a regulated credit agreement and contains no mistakes, is incorrect and misleading as it does not follow the form and content of a regulated agreement, and submit it does contain serious mistakes.

 

 

6 It is also submitted that the Claimant did not abide by the condition J2 in the terms and conditions of the agreement, by failing to advise them (jointly or separately) of the increase of interest that is stated in paragraph(b) of the Claimants Particulars of Claim, prior to August 2007, to the fact that it is now 13.5% and submits that as a copy of this notification is not included in the supporting documents attached to the claim, supports the Defendant’s submission, that no such notice was given. In any event t his is an increase of 3.56% in 4 months or thereabouts, and is an increase of nearly 1% per month. When in fact the LIBOR interest rate to which, according to the Claimant, the agreement is linked in the period from April 2007 to April 2008 has only risen by 1%

 

 

 

7 The Defendant’s submit that the production of a copy of such a notice should be considered unacceptable and inadmissible, as it would be quite easy to conjecture such a notice at any given time.

 

8 The Defendant’s refer again to the Claimants Particulars of Claim and to paragraph 6 (a) which states that the amount loaned was £46,995.00 and aver that is not the sum shown as the loan total on the agreement.

 

 

9 It is submitted that it is the Claimant that was/is in breach of the agreement long before any “alleged” breach by them and that the Claimant just went ahead and increased the interest without warning or explanation.

 

 

10 The Defendant’s submit that they have attempted by way of many letters and correspondence to resolve the dispute, but have been met with complete intransigence from the Claimant and complete rebuttal.

 

11 We refer to the Default Notice shown as exhibit 3 of the Claimants statement, and respectfully ask the court to declare it invalid for the following reasons;

 

(a) That we submit as it is the Claimant that is in breach of the agreement by failing to adhere to condition J2 of the agreement in August 2007, the Default notice cannot be acceptable in those circumstances plus

 

(b) That the financial details contained in the said Default Notice are incorrect in that;

(i)The “total loan” sum stated in the Default Notice is stated to be £46,955:00, this is not what is shown as “the total loan” on the credit agreement

 

(ii)The “alleged arrears” two months at £613:32 do not total £1264:02

 

 

12 The Defendant’s submit that it is their belief the details contained in a Default Notice must be 100% correct, and submits that under Consumer Contract law cannot issue and enforce an agreement with a default notice is served that is correctly worded and contains correct and accurate relative financial information.

The Defendants submit that paragraph 1 of that afore said notice appears to relate to a fixed sum monthly payment over a fixed period of years at a fixed rate of interest.

 

 

13 It is submitted that every possible means have been taken by the Defendants to resolve the issues regarding the agreement and to have it “put right” pointing out that the Claimant has been and still is, wrong in all their actions, all have been to no avail, and that the Claimants have been force to “suspend” the payments, in a last ditch attempt to make the Claimant realise that their actions are unfair and that they have abused their position.

 

 

14 The Defendant’s attach as Document B the last letter written by them to the Claimant in reply to notification that the Claimant had issued proceedings against them and respectfully ask the Court to consider the contents of this letter as part of their Defence pleadings.

 

 

15 We refer to the section headed “You should note the following” in the Loan Agreement listed as exhibit 1 in the documents in support of Claimants statement Number 1, paragraph 3, which states what the Claimant would do and what was agreed to be done, a copy of which is attached to this Defence for ease of reference as Document C. Also attached is a letter, listed as Document D from the Claimant stating that this had in fact been done. The Defendants submit that they were misled into believing that the fees would be taken from the total loan amount, as they had already been included in that amount and that is what they believed had been done.

These facts had been misrepresented to them, as it had not been done and submits that under the Misrepresentation Act 1967.

 

“A Misrepresentation is a false statement made during the negotiations of a contract which induces the representee to enter into a contract.

 

 

The result of a finding of misrepresentation is that the contract is voidable. This means the contract exists but may be set aside at the instance of the innocent party. The remedies available are rescission and or damages depending on the type of misrepresentation (fraudulent, negligent or wholly innocent). Rescission is putting the parties back into their pre-contractual position. The right to rescind may be lost in certain circumstances. To be an actionable misrepresentation certaincriteria must be satisfied: There must be a false statement of fact as opposed to a statement of opinion”

 

 

16 The Defendant’s have since concluded that the Claimant has added these sums to the agreement “total loan” outside the terms and conditions which the Defendant’s submit is unlawful, and in doing so not only breached the agreement but made the agreement totally unfair andunworkable, the Defendant’s therefore call into question the Claimants powers to carry out these actions and the Claimants conduct in attempting by abuse of this position and power to force them to accept these extra additional charges to unjustly force more monies out of them than that which is stated in the agreement.

 

 

17 The Defendant’s submit as Document E a letter received from the Office of Fair Trading showing that the Claimant is being monitored by that Office, for what can only be presumed the same type of actions taken against others that have been taken and actioned against the Defendants

.

 

 

18 The Defendants submit a copy of page 2 of a letter received from the Claimant, listed as Document F that states in paragraph three and confirms that the various fees are added to amount of credit to arrive at the “total sum” borrowed, this means that the fees that are shown in the OtherFinancial Information box are/were included in the total loan sum as we were led to believe before signing the agreement.

 

 

19 The Defendant’s aver that it is the Claimant who breached the agreement on inception, by adding these fees again “outside the agreement” and is an action taken with the intent to commit fraud by deception and is a deliberate attempt to extort a further £3,955 plus interest over the period of the loan agreement which calculates at £ 7010:40.

 

20 The Defendants refer to Lord Denning’s explanation of fraud by concealment and quote;

 

“Like the man who turns a blind eye. He is aware that what he is doing may well be a wrong, or a breach of contract, but he takes the risk of it being so. He refrains from further inquiry least it should prove to be correct: and says nothing about it. The court will not allow him to get away with conduct of that kind. It may be that he has no dishonest motive: but that does not matter. It is not necessary to show that he took active steps to conceal his wrongdoing or breach of contract. It is sufficient that he knowingly committed it and did not tell the owner anything about it”.

 

The Defendants submit that the Claimant knew full well that the fees stated in the other financial information box had been included in the total loan and yet have added them again in the hope it would never be discoverd.

 

 

S2(1) of the Misrepresentation Act 1967

Negligent Misrepresentation

For negligent misrepresentation the burden of proof rests on the representee to show that they had reasonable grounds for believing it to be true. This can be a heavy burden to discharge

 

A statement as to future intention is not a false statement of fact unless the at the time of making the statement the representor had no intention of carrying out the stated intent:

 

21 The Defendants also wish to challenge the agreement under the Unfair Relations in Consumer Credit Agreements.

 

 

Unfair Relations in Consumer Credit Agreements

The new provisions will apply from 6 April 2007 in relation to credit agreements entered into after then. For agreements made before that date, the provisions will apply from 6 April 2008 unless the loan has been repaid by then. (The Secretary of State is empowered to extend this transitional period, and there may be further consultation on this.)

There is a widely held misconception that the Consumer Credit Act only applies to “regulated agreements.” On the contrary, although many of the provisions of the Act apply to regulated agreements, others apply equally to non-regulated agreements (such as exempt agreements and - until this limit is abolished - agreements for credit exceeding £25,000). The new provisions apply to all consumer credit agreements other than FSA-regulated mortgage contracts.

 

22 The Defendants Agreement is stated to be a non FSA regulated mortgage agreement and so falls within the scope of Unfair Relationship.

 

 

If a court finds a relationship is unfair to the borrower it can do a number of things. For example, it may require repayment of sums already paid by the borrower, or the reduction of any sum payable by the borrower in the future. It may require the release of any security, or the alteration of the terms of the agreement or any related agreement. Or it may require the lender or any associate of it to take, or to refrain from taking, any particular action.

 

23 The Defendant’s further submit that they cannot be held in breach of an agreement that is already in breach by the first party.

 

Data Protection Act 1998 Legislation

 

24 Under the Fourth Principle of the Data Protection Act 1998 “data must be Accurate and, where necessary kept up to date” and that “data are inaccurate if they are incorrect or misleading as to any matter of fact”

 

 

25 The Defendants submit that by passing information to all three CreditReference Agencies (CRA’s) that the initial loan amount was £46.955 are in breach of this principle it follows that all the monthly updates sent to the CRA’s is also incorrect and misleading.

 

 

26 Under section 13 of the afore said Act an individual is entitled to claim compensation for damage and distress, and that damage includes financial loss. The Defendants aver that they have both suffered financial loss in the forced extra payments that have been made on the loan.

 

 

27 The Defendants again further aver that as it was the Claimant that breached the agreement at inception, all terms and conditions applicable to the agreement and the land registry charge have been made null an void by the Claimants breach/breaches.

 

 

 

Statement of truth

 

 

The Defendant’s respectfully ask the honourable Court to order that the agreement be declared an unfair contract for all reasons given in this Defence, and strike out the Claimants application and further order that the Claimant;

 

 

1... Cancel the agreement immediately, and write the sum of £43,000:00 off.

 

2...Cancel the land registry charge details on our property.

 

3...Return all monies paid by us to date, plus interest at initial contract rate of

9.84%

 

4...Order the Claimant pay a substantial sum of further compensation for the incorrect entries on our credit files for the damage that data is causing to our credit score rating and financial credibility, as those files now show 3 months late payments,

 

In the Court of Appeal ruling, Kohporar v The Woolwich, 1996 Lord

Birkenhead stated;

 

 

Quote.

“The credit rating of individuals is as important for their personal transactions, including mortgages and hire-purchase as well as banking facilities, as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in holding that what is in effect a presumption of some damage arises in every case”.

Lord Birkenhead goes on to say“and I would uphold the master's award of general damages of £5,550”.

 

The National statistics office have translated £5,500 equates to some

£8,400 as at 2008. ( Durkin V RSG and HFC Bank Ltd April 2006)

 

5…Order the Claimant pay further exemplary damages for the unlawful intrusion into our financial affairs with Abbey Bank our First Mortgagee and for the deceptive methods used by Swift in the attempts to obtain that information from Abbey Bank, as this action was not only another breach of the Data Protection Act legislation but a breach of our rights to privacy to home life and personal correspondence under Article 8 of the European Convention on Human Rights which is embedded in the Human Rights Act of the UK, on the grounds that any and all authority the Claimant thought it had to make those enquiries had been nulled by the intitial breach by the Claimant of the agreement on the 4th April 2007

 

6...Order the immediate removal of all data and information supplied by Swift Advances from the files of all three Credit Reference Agencies

 

7…That the Claimant be responsible for all costs of this hearing.

Edited August 3, 2008 by Sparkie1723

[overdone]

Brilliant! But how did you know what the monthly payment should have been? I took my swift mortgage at face value and repayments quoted. Mine came to about £470 a month when I remortgaged to £43,000. Supposed to be 25 years at 9.5%.

[Sparkie1723]

Brilliant! But how did you know what the monthly payment should have been? I took my swift mortgage at face value and repayments quoted. Mine came to about £470 a month when I remortgaged to £43,000. Supposed to be 25 years at 9.5%.

 

 

Hi overdone,

 

I just checked for them when they asked me if I thought they were paying too much,

I logged on to loan calculators and put the amount in at the apr being charged and lo and behold it all sprung to life £ 43000 @ 9.84 doesnt work out to £ 613 quid plus they were getting done real proper.

 

sparkie

Edited October 5, 2008 by Sparkie1723

[Sparkie1723]

HI again overdone

 

Your repayments per month should have been £ 375:69....definately not £470 it looks as if they have done exactly the same to you added the Brokers fees TWICE.

 

sparkie

[Sparkie1723]

Not sure if the mods will leave this on this thread but its a good summary of what the unfair relations is about, and a useful bit of info I think.sparkie

Executive summary

• After 6 April 2007 borrowers can challenge lenders on credit agreements if they feel they have been treated unfairly. For agreements made before that date, the provisions will apply from 6 April 2008 unless the loan has been repaid by then.

• The new provisions apply to all consumer credit agreements other than FSA regulated mortgage contracts.

• The borrower making the claim that a relationship is unfair will have to show that there is an arguable case. However, it is up to the lender to prove that it is not.

• The consultation paper does not contain any formal guidance on the exact meaning of the unfair relationship test. Regulators such as the OFT and FSA point out that only the courts can decide.

• An unfair relationship may arise due to unfair contract terms, interest rates and other charges, breaches of current and future law, breaches of guidelines and regulation.

The new unfair relationship provisions - implications for business regulated and unregulated by the Consumer Credit Act

New ‘unfair relationship’ rules are intended to make it easier to challenge unfairness in relation to credit agreements.

From 6 April 2007, these provisions – with one limited exemption - will apply to all new credit agreements with individuals, irrespective of the amount of the credit being provided1. This includes agreements with sole traders and partnerships with three or less partners. They will not apply to hire or lease agreements (but will, for example, apply to hire-purchase and conditional sale).

For agreements made before 6 April 2007, the new rules will apply from 6 April 2008, unless the relevant agreement has been completed before then.

Why should this matter to creditors?

These changes are significant for creditors because where a court determines that a relationship is unfair, it can make a wide range of orders.

Among them are:

· requiring repayment of all or part of any sum paid by the debtor or any guarantor by virtue of the agreement or any related agreement2;

· requiring the creditor to do or not do anything specified in the order in connection with the agreement;

· setting aside all or part of any obligation of the debtor or any guarantor as a result of the agreement or related agreement;

· altering the terms of the credit agreement;

· directing the return of property given as security for the agreement.

The unfair relationship provisions – which are wider in scope and give the courts more discretion - will take the place of the existing “extortionate credit bargains” under the Consumer Credit Act.

The Office of Fair Trading recently published guidance (available on its website) indicating how it expects the unfair relationship provisions to interact with its own powers under the Enterprise Act. Under these powers, the OFT can bring proceedings against businesses that breach their legal obligations and by doing this harm the collective interests of UK consumers, whereas the unfair relationship provisions are a route for individuals themselves.

Although recognising that it is ultimately a matter for the courts, this guidance gives examples of conduct and practices which the OFT considers could contribute to or give rise to unfair relationships.

How will a court determine whether a relationship is unfair?

A debtor or surety (such as a guarantor) can invoke the court’s powers to determine whether a relationship is unfair. The debtor or surety can make an application without any existing proceedings.

Alternatively, an order can also be made at the instance of the debtor or a surety where there are court proceedings between the debtor and creditor: (a) relating to the enforcement of the agreement or any related agreement; or (b) where the amount paid or payable under the agreement or any related agreement is relevant.

When a debtor or surety alleges an unfair relationship, it is for the creditor to prove to the contrary.

There is no precise definition in the legislation of what is an “unfair relationship”. A court can determine that the relationship arising out of the credit agreement (or the credit agreement taken with any related agreement) is unfair to the debtor because of any one or more of the following:

· any of the terms of the agreement or any related agreement. This could include terms requiring the debtor to pay a disproportionate amount as compensation for his breach (for example by way of default charges or termination sums);

· the way in which the creditor has exercised or enforced any of its rights under the agreement or any related agreement. This could include heavy-handed debt collection practices;

· any other thing done (or not done) by or on behalf of the creditor before or after the agreement (or any related agreement) was made. This could include the nature of the creditor’s advertising, misrepresenting the terms of the contract or applying unreasonable pressure on the debtor to sign it.

The court can take account of all matters it thinks are relevant. It is likely that the courts in determining unfairness will look to the meaning of ‘unfair’ in other legislation, such as the Unfair Terms in Consumer Contracts Regulations 1999. If so, they are likely to look at whether there is a significant imbalance between the parties rights and obligations to the individual’s detriment and also whether there is generally fair dealing. Not every one-sided provision in an agreement will necessarily lead to there being an unfair relationship.

A particular concern is the scope for conflicting court decisions given the breadth of the discretion and lack of a categorical definition of what is an unfair relationship.

Only time will tell whether debtors will use these new provisions any more widely than the current extortionate credit bargains have been. However, creditors would be wise to review the terms of their credit agreements and their operations in light of them.

1 This exemption includes consumer credit agreements secured by a land mortgage where the creditor is making the agreement as a regulated activity under the Financial Services & Markets Act 2000 and certain home purchase plans.

2 A related agreement includes (among other things) a credit agreement consolidated by the main agreement and security provided in relation to the main agreement

 

[overdone]

HI again overdone

 

Your repayments per month should have been £ 375:69....definately not £470 it looks as if they have done exactly the same to you added the Brokers fees TWICE.

 

sparkie

 

Initially, I used a broker but for the 2 remortgages I did not. £100.00 fee only was added each time I arranged a remortgage.

[Sparkie1723]

Initially, I used a broker but for the 2 remortgages I did not. £100.00 fee only was added each time I arranged a remortgage.

 

 

Don't know what happened there without more info but your repayments were about £100 a month too much, no doubt about that was your first loan through the broker with Swift?...because if it was thats where the big fees come in and would have carried over through the settlement figures...something like that.

 

 

 

sparkei

[overdone]

Don't know what happened there without more info but your repayments were about £100 a month too much, no doubt about that was your first loan through the broker with Swift?...because if it was thats where the big fees come in and would have carried over through the settlement figures...something like that.

sparkei

 

Found docs, but could not find web site to check interst payments. All sites seemed to be in American dollars. Anyway, in British, my last remortgage was:

 

£47,200

monthly int rate 0.83%

mortgage rate equivelent 9.96%

No of Monthly repayments 300

Monthly payment £428.74

[Sparkie1723]

Hi overdone,

 

£47,200

monthly int rate 0.83%

mortgage rate equivelent 9.96%

No of Monthly repayments 300

Monthly payment £428.74

 

 

Unfortunately your payments are correct on the figures above.

 

sorry mate,

 

sparkie