Swift Advances. Secured Loan Charges reclaim

[Sparkie1723]

Excellent thank you Sparkie.....so my 2002 agreement is now governed by the CCA....

ce

 

As of 6th April 2006

IF it is still in force.....answer is simply YES.

In future, all consumer credit and consumer hire agreements will be regulated by the 1974 Act unless specifically exempted, regardless of the amount of

the credit or the amount of the hire payments. Section 2(3) extends the application of the provisions regulating credit advertisements to advertisements offering credit regardless of the sum involved, and regardless of whether the creditor requires

security.

 

 

 

sparkie

Edited October 6, 2008 by Sparkie1723

[Sparkie1723]

For those that want something to read.....lot of reading to digest

 

 

 

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

“Unfair relationships

140A Unfair relationships between creditors and debtors

(1) The court may make an order under section 140B in connection with a credit agreement if it determines that the relationship between the creditor and the debtor arising out of the agreement (or the agreement taken with any related agreement) is unfair to the debtor because of one or more of the following—

(a) any of the terms of the agreement or of any related agreement;

(b) the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement;

© any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement).

(2) In deciding whether to make a determination under this section the court shall have regard to all matters it thinks relevant (including matters relating to the creditor and matters relating to the debtor).

(3) For the purposes of this section the court shall (except to the extent that it is not appropriate to do so) treat anything done (or not done) by, or on behalf of, or in relation to, an associate or a former associate of the creditor as if done (or not done) by, or on behalf of, or in relation to, the creditor.

(4) A determination may be made under this section in relation to a relationship notwithstanding that the relationship may have ended.

(5) An order under section 140B shall not be made in connection with a credit agreement which is an exempt agreement by virtue of section 16(6C).”

20 Powers of court in relation to unfair relationships

After section 140A of the 1974 Act (inserted by section 19 of this Act) insert—

“140B Powers of court in relation to unfair relationships

(1) An order under this section in connection with a credit agreement may do one or more of the following—

(a) require the creditor, or any associate or former associate of his, to repay (in whole or in part) any sum paid by the debtor or by a surety by virtue of the agreement or any related agreement (whether paid to the creditor, the associate or the former associate or to any other person);

(b) require the creditor, or any associate or former associate of his, to do or not to do (or to cease doing) anything specified in the order in connection with the agreement or any related agreement;

© reduce or discharge any sum payable by the debtor or by a surety by virtue of the agreement or any related agreement;

(d) direct the return to a surety of any property provided by him for the purposes of a security;

(e) otherwise set aside (in whole or in part) any duty imposed on the debtor or on a surety by virtue of the agreement or any related agreement;

(f) alter the terms of the agreement or of any related agreement;

(g) direct accounts to be taken, or (in Scotland) an accounting to be made, between any persons.

(2) An order under this section may be made in connection with a credit agreement only—

(a) on an application made by the debtor or by a surety;

(b) at the instance of the debtor or a surety in any proceedings in any court to which the debtor and the creditor are parties, being proceedings to enforce the agreement or any related agreement; or

© at the instance of the debtor or a surety in any other proceedings in any court where the amount paid or payable under the agreement or any related agreement is relevant.

(3) An order under this section may be made notwithstanding that its effect is to place on the creditor, or any associate or former associate of his, a burden in respect of an advantage enjoyed by another person.

(4) An application under subsection (2)(a) may only be made—

(a) in England and Wales, to the county court;

(b) in Scotland, to the sheriff court;

© in Northern Ireland, to the High Court (subject to subsection (6)).

(5) In Scotland such an application may be made in the sheriff court for the district in which the debtor or surety resides or carries on business.

(6) In Northern Ireland such an application may be made to the county court if the credit agreement is an agreement under which the creditor provides the debtor with—

(a) fixed-sum credit not exceeding £15,000; or

(b) running-account credit on which the credit limit does not exceed £15,000.

(7) Without prejudice to any provision which may be made by rules of court made in relation to county courts in Northern Ireland, such rules may provide that an application made by virtue of subsection (6) may be made in the county court for the division in which the debtor or surety resides or carries on business.

(8) A party to any proceedings mentioned in subsection (2) shall be entitled, in accordance with rules of court, to have any person who might be the subject of an order under this section made a party to the proceedings.

(9) If, in any such proceedings, the debtor or a surety alleges that the relationship between the creditor and the debtor is unfair to the debtor, it is for the creditor to prove to the contrary

[overdone]

Excellent thank you Sparkie.....so my 2002 agreement is now governed by the CCA....

My remortgage was 2005 and I have since paid off as shown in earlier post. I never got an annual statement so does any of this affect me.?

[Sparkie1723]

My remortgage was 2005 and I have since paid off as shown in earlier post. I never got an annual statement so does any of this affect me.?

 

This new legislation only covers agreements that are/were in force after April 2006, as you paid yours off in 2005...its not much help to you...sorry mate...you can still try getting your excess payments back.

 

sparkie

[determindator]

I've been guided to this marvelous thread from SS v Swift Advances. I thought I was the only person in the world with extortion problems!! There's so much to take in with the incredible work that has been done so far. I notice this thread is in General Debt Problems. I have seen help me with Swift in other forums. I started a thread in reclaiming PPI forum. Do we think we should have a Swift forum which is listed prominently at the beginning of CAG site as the other major Banks. Another idea is a secured loan forum and then listing the individual companies. I feel if there is going to be a major complaint we need to group up. Has anyone received a refund of PPI from Swift yet? If anyone has paid them off in the past have you claimed back your PPI which can be done after repayment. I'm getting excited with the progress I've seen in this thread.

Edited October 6, 2008 by determindator

[determindator]

I was advised in 2010 there will be a retrospective law introduced to include claims for unfair agreements prior to the date used now. Can anyone enlarge on this? I can give the source of the info if needed.

[ziggy04]

Hi everyone i have a secured loan with swift from 2004, we got a letter from swift recently concerning the current financial climate, they state that they thought it only fair to warn us that there may be interest rate increases imposed if the current situation continues and suggested that we look elsewhere for an alternative lender, i thought it was a bit odd, has anyone else had any similar letters, maybe they are struggling, my payments have risen 6 times since 2004 my apr is already high enough.

i have received what was titled record of payments after they told us we were in arrear by one month in 2007, i disputed the arrears but ended up paying it as i didn't want a default & they were slapping interest on the arrears letter fees etc, had quite a few letters from them myself, @ £23, what about charging £12 if i phone them unbelievable isn't it. they must be raking it in on unfair charges alone

[overdone]

Hi everyone i have a secured loan with swift from 2004, we got a letter from swift recently concerning the current financial climate, they state that they thought it only fair to warn us that there may be interest rate increases imposed if the current situation continues and suggested that we look elsewhere for an alternative lender, i thought it was a bit odd

Yes it is a bit odd. Maybe that is why I can't get my charges refunded.

[emmaf01]

If you spot an unfair charge, reclaim it.

[emmaf01]

Is any one suggesting that the Swift business model may be in danger of collapse?

[overdone]

Is any one suggesting that the Swift business model may be in danger of collapse?

You tell me Emma! Do you know how to check the internet for their standing?

Also, as a sub prime lender, they may be part of a larger group.

[andrew1]

It might also suggest that Swift realise that they have one hell of a lot of unenforceable agreements out there amongst their 20,000 customers which they will never be able to collect if the momentum building up on these sites continues apace, and there are one hell of a lot of agreements like that believe me. Check them, you won't know until you check, they look authentic enough...BUT

 

Danger comes when you move lenders and consolidate your loans because once the loan has closed, their money is safe, paid off by GE or whoever else lends you the money to pay them off - SO CHECK YOUR AGREEMENTS very closely and thoroughly with a consumer credit solicitor or on here by someone who knows like Sparkie & Co.

 

Me thinks brown spots beginning to show down under

 

 

Sarah

[emmaf01]

Well I can't find out specifically if Swift are in imminent danger of collapse, but I did find out a funny fact I didn't know.

 

Alchemy Partners, a private equity group, own a large part of Swift. They have a man on the board (Dominic Slade).

 

Alchemy Partners also have a large stake in Wescot Credit Services, that well known DCA. Men on the board to represent Alchemy- Steve Bodger and... Dominic Slade.

 

What a tangled web we weave! I wonder if Swift get Wescot to chase debt for them?

[overdone]

They appear to be tied in with Kestral as well.

Edited October 6, 2008 by overdone
typo

[emmaf01]

I thought Kestrel was the holding company for Swift?

[overdone]

Yes Emma, you are quite right about the holding company bit.

 

I decided to complain to OFT as follows and let Swift know I had.

 

22 August 2008

 

The Office of Fair Trading,

Fleetbank House

2 – 6 Salisbury Square,

LONDON CO9 2LP

EC4Y 8JX

 

Dear Sirs,

 

Re Complaint, Former Agreement Number Px xxxx/xxxx. SWIFT ADAVCES. Brentwood. Re xxxxxxxx Road, xxxxxxx, Essex xxx xxxx

 

I wrote to Swift Advances of Brentwood Essex, letter enclosed and have since had an unsatisfactory response considering this to be a Hardship Case. I wonder if you would be good enough to investigate the matter of illegal charges made on my account.

 

My Understanding of the situation is this;

 

When the OFT makes a ruling then creditors are expected, and indeed required, to comply. All banks and credit card companies, in general, hold licences to lend money under the Consumer Credit Act 1974 (and hold licences to collect consumer debts too).

 

Thus if a bank or creditor fails to take on board the OFT's ruling surely, we can use the 1974 Act to the advantage of ordinary people.

 

Most banks and the BBA have in light of the OFT's statement indicated that they think it is wrong, unfair, or only related to credit cards and so on and so forth. But the fact is the OFT has stated it is subject to all consumer contracts - including bank accounts, overdrafts and mortgages.

 

Thus what I need to do is to say to banks and creditors is that unless they implement the OFT's ruling (which means please refund all unfair bank charges within the last 6 years for England/Wales, or 5 years for Scotland) then they will be 'an unfit person to hold a consumer credit licence'.

 

Under the 1974 Act, customers can lodge a complaint to the OFT if they think a company is an 'unfit person'.

 

The point is this - if UK banks want to fight the OFT, then fine (and that will take time) but meantime the OFT could revoke their licence under the 1974 Act.

 

I await your response.

 

Yours faithfully,

 

 

Overdone

 

The OFT have not replied. I have heard others on other threads say the OFT have helped them get repayment of Charges. Did I write to the right OFT and why have they not replied?

Edited October 7, 2008 by overdone
typos

[emmaf01]

Have you threatened court to Swift over their unlawful charges, Overdone. I know I'm probably talking teaching grannies to suck eggs, seeing as I'm saying this to you! If so, sorry.

[overdone]

Have you threatened court to Swift over their unlawful charges, Overdone. I know I'm probably talking teaching grannies to suck eggs, seeing as I'm saying this to you! If so, sorry.

On page 2 post 32 I got their standard response and I have heard nothing since, despite a complaint to the OFT with a circulated copy to Swift. I expect Swift know the OFT are a pushover.

[andrew1]

Firstly overdone, you have stated in your letter that the charges are ' illegal ' - not so, as emmaf01 states, they are 'unlawful' subtle difference, but a difference non the less. Secondly, the OFT do not set the laws of this country, their guidelines are just that ' guidelines ' which one expects businesses to adhere to I admit. Thirdly, the OFT also do not intervene with charges it is the Financial Ombudsman in Canary Wharf (FOS), Lastly, Swift are not noted for responding to anything except in court when one poster had 6 of them turn up to convince the judge their charges were reasonable, another had an extremely expensive Consumer Credit Barrister turn up to defend Swift, so they answer little or nothing, take you to court and throw everything they've got at defending, so be careful. They won't roll over like the banks or some DCA's, you have to get them with critical FACT and that comes in the detail of their agreement documents, which as I have said before one needs to look at very closely and get checked by someone who knows what they are doing. Most are wrong as you have stated, but get it right, don't stab at it like using words such as 'illegal' they'll pounce on one tiny slip up.

 

Sarah

[Sparkie1723]

THere is too much in all the last few posts to comment on ....but in my opinion Swift have realised that practically all their agreements in force now are unenfoceable....hence the attempts to get people to change their lender....they would get their money they are not really lawfully entitled to....they are soon to be in trouble, as many complaints as possible should be made to the OFT.

At the same time check your agreements VERY closely most are unenforceable ....with regard to them acting in the way they do read the unfair relations section 140 of the CCA I've posted earlier.

I'll have some more news on how my friends case is going later ....swift are in big trouble

 

sparkie

[Sparkie1723]

I would advise folks as andrew1 pointed out .......do not change lenders if you can possibly help it......that lets Swift completely off the hook....except for claiming unlawful penalty charges back.

 

My friends have had their hearing date they are challenging their agreement and claiming all their money back plus interest plus damages because I believe.... their barrister believes their agreemnt is completely flawed and even their possession application docs are flawed...they also have not had a statement of account ever and there is not one even in the claim documents................ ....that alone makes the agreement unenforecable .....until they supply one ........if their agreement is declared unenforceable for all lot of other reasons which I believe it will then Swift are in the "mire" as there must be a couple of thousand agreements like my friends.

 

I personally think Swift will settle out of court....because they cannot afford to have it declared unenforceable.......I don't think Swift have had one of their possession claims fought before because the people who' s homes being possessed haven't got the money to employ barristers to take them on , and have just got another loan to pay Swift off...thats what Swift rely on ...scare tactics and even suggest the name of another lender to take their loan over at an even higher rate of interest, my friends have got the money, their hearing is set for 18th Decemeber, not long to wait folks.

In the mean time everyone report their tactics to the OFT and the FOS.

 

The OFT don't act on just a couple of complaints they collect all the complaints and when they have enough that's when they take action ...they have got to have a lot of strong evidence to take a traders licence away....they are fairly easy to get.... but hard to have them taken away.

 

sparkie

Edited October 7, 2008 by Sparkie1723

[42man]

Exceptional work Sparkie......i'll send you a copy of my agreement to peruse in the near future....

[Sparkie1723]

Exceptional work Sparkie......i'll send you a copy of my agreement to peruse in the near future....

 

No problem have you got my e-mail address?....I'll Pm it if you haven't.

 

sparkie

[Sparkie1723]

I am against Swift because of my involvement with my VERY close friends, Iam in a way "a neutral".

But it is the tactics that Swift have used against them that has got me hot under the collar, and I intend to help as many people as I possibly can to fight who I can only describe as "loan sharks" of the worst kind.

 

sparkie

[determindator]

I kept an email sent from Swift, it was sent as though they thought I was a broker. I found out through this they are part of the Alchemy group. I have read in Court leaflet number 1 dealing with Debt page 11 'Unfair credit agreements' it says- parts of the Consumer Credit Act allows a court to rewrite any credit agreement (including a mortgage) if it thinks the agreement is an 'extortionate credit bargain'. I think borrowing a sum which can turn into a limitless debt over it's 25 yr term is totally unfair, apart from all the other issues I have learnt about on this thread. The broker made the loan sound very atractive by stating if it were to be paid off at any stage it would deduct what you've paid and get a rebate for early redemption. What they don't tell you or explain is how the interest is loaded.