Swift Advances. Secured Loan Charges reclaim

[frettful38]

Your Lender has made this a term & condition of your loan, which they can’t under the way the agreement is constructed , if they do then there is an unfair relationship from that very moment they pay it ( see Guidelines by OFT on no status lending) it becomes a part of the agreement which becomes another loan ..not a charge for credit.

This unilaterally alters the agreement from inception cause an imbalance ….brokers fees cannot be part of the terms and conditions of an agreement.

How can you authorise the payment of fees and commissions if you do not know what they are, that again is an unfair relationship.

. Section 140B(9) of the Consumer Credit Act 1974 provides as follows:

 

(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.

 

 

 

3.10 Brokers should disclose at the outset the nature and extent of the services offered to the borrower, together with any ties they may have to

lenders or other brokers. If a brokerage fee is payable this should be made clear at the outset. The amount of the fee should be confirmed in writing before entry into the credit agreement

 

3.11 The existence of any commission or other payment payable by the lender to the broker should be disclosed to the borrower at an early stage, for instance before the broker engages in specific discussions based on the prospective borrowers circumstances, so that the borrower is aware of any potential conflict of interest. The amount of the commission or override commission should be disclosed.

 

Blemain would have to prove all this is not unfair, it also makes your agreement a partly regulated agreement.

Read the UTCCC's & the Unfair Relationship Act deeply along with the OFT Guidelines on Non Status lending

 

Tell your solicitor to read these as well he might learn something;)

http://www.oft.gov.uk/shared_oft/business_leaflets/enterprise_act/oft854.pdf

 

http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft1105.pdf

 

Thanks as usual sparkie again, I have noted what you have said above and will be forwarding this on to my solicitor today. In the meantime, as I get told from everywhere that my agreement is unregulated as it is above the £25k, I was reading this part from the CCA 1974 and wandered what you thought.

 

Section 11 (1) © 1974 CCA

 

11.—(I) A restricted-use credit agreement is a regulated consumer credit agreement—

 

© to refinance any existing indebtedness of the debtor's, whether to the creditor or

another person, and " restricted-use credit" shall be construed accordingly.

 

 

Does that mean because I had to pay off my old loan from my current loan then that has made my loan regulated, as I had to refinance? because if it is then that is awesome.

[busterg]

You are confusing me a little you say it is a mortgage/First Charge Loan.

 

Swift Advances only do Second Charge secured loans ...it is Swift Firstwho do First Charge mortgages........so who is yor mortgage loan what ever with.....Swift First or Swift Advances Plc???

Does your agreement say an Unregulated Consumer Credit Agreement?? or what exactly does it say.....Can you post it up use photo bucket ...remove personal details of course.

 

If you can prove that the Broker copied and pasted your signature forget about the OFT FSA etc etc go straight to the police and tell them that you want them to investigate your allegation of Fraud.....take the number of the police officer you report it to and get a crime number issued.

 

sparkie

 

sparkie

 

It's with Swift first. On one document I was shown and lead to believe one thing and then I find out Im involved in something else. I will get the docs up later today. if that's okay.

 

besides, if I do go the police, then swift will just up their efforts to take my home alot sooner. The way to prove it would be the document that swift have sent me and I'll post it up later, and the fact that my then partner was privy to the conversations I had with the broker and witnessed me scanning and emailing my signature. Unfortunatley, It was sent to his hotmail account as he didn't have his business email account set up at the time and I have since (2006) deleted these emails from my hotmail account. Also I keep asking for a missing page from the agreeement they issued proceedings with and they will not send it to me. it jumps ie page 1,2,3 (5)missing 6,7,8 and won't even acknowledge that its not included. This was the first time I saw site of this document. I didn't understand it then and still don't now. The second time was when the complaince officer sent it to me together with the Keyfacts doc and Mortgage App doc which again I didn't complete or believe I signed. This was the first time I saw these.

 

I'll be quick as I can to get the docs up.

 

Does anyone have ALL pages of their agreement and properly numbered?

[busterg]

Thanks as usual sparkie again, I have noted what you have said above and will be forwarding this on to my solicitor today. In the meantime, as I get told from everywhere that my agreement is unregulated as it is above the £25k, I was reading this part from the CCA 1974 and wandered what you thought.

 

Section 11 (1) © 1974 CCA

 

11.—(I) A restricted-use credit agreement is a regulated consumer credit agreement—

 

© to refinance any existing indebtedness of the debtor's, whether to the creditor or

another person, and " restricted-use credit" shall be construed accordingly.

 

 

Does that mean because I had to pay off my old loan from my current loan then that has made my loan regulated, as I had to refinance? because if it is then that is awesome.

 

 

Cracking question - that's me as well. Thanks fretfull.

[frettful38]

Cracking question - that's me as well. Thanks fretfull.

 

 

No probs busterg, lets hope we all have a good 2010. Sparkie is doing a great job, and wish him the best of health and hope he takes down these xxxxx SOON!

[Sparkie1723]

Cracking question - that's me as well. Thanks fretfull.

 

 

I'll post my views on this a bit later as the Heath Ruling would be considered on this issue.

sparkie

[Sparkie1723]

JUst to keep folks informed jus had a word with the ICO about my cpmplaint about SWift passing data on to the Kestrel Companies who have not got an ICO license to prcess data.

 

My SAR to Kestrel NO 1 was returned saying they do not process data when I know they are processing accounts with peoples name on etc etc etc ....ICO informed me that my complaint is just waiting for a tem to start its investigation into the whole aspect of this

 

 

sparkie

[frettful38]

I'll post my views on this a bit later as the Heath Ruling would be considered on this issue.

sparkie

 

 

Sparkie, can I please ask you a question when your not too busy. I need to know if my loan is regulated by the 2006 Act. I know it will not be covered by the CCA 74 as it is over £25k, but if my £35k loan is regulated by the 74 CCA then do I have a classic multiple agreement?

 

I maybe should be asking my solicitor this question too? He has already told me that loans taken out prior to 6 April 2006 which are for more than £25k are not covered by the CCA 1974.

[Sparkie1723]

JUst to keep folks informed just had a word with the ICO about my cpmplaint about SWift passing data on to the Kestrel Companies who have not got an ICO license to process data.

 

My SAR to Kestrel NO 1 was returned saying they do not process data when I know they are processing accounts with peoples name on etc etc etc ....ICO informed me that my complaint is just waiting for a team to start its investigation into the whole aspect of this

Passing accounts etc with peoples name on is classed as processing personal data obtaining it without a license is an offence none of the Kestrel Companies have a license;)

 

 

sparkie

[frettful38]

I'll post my views on this a bit later as the Heath Ruling would be considered on this issue.

sparkie

 

 

Sparkie, can I please ask you a question when your not too busy. I need to know if my loan is regulated by the 2006 Act. I know it will not be covered by the CCA 74 as it is over £25k, but if my £35k loan is regulated by the 74 CCA then do I have a classic multiple agreement?

 

I maybe should be asking my solicitor this question too? He has already told me that loans taken out prior to 6 April 2006 which are for more than £25k are not covered by the CCA 1974.

[Sparkie1723]

Sparkie, can I please ask you a question when your not too busy. I need to know if my loan is regulated by the 2006 Act. I know it will not be covered by the CCA 74 as it is over £25k, but if my £35k loan is regulated by the 74 CCA then do I have a classic multiple agreement?

 

I maybe should be asking my solicitor this question too? He has already told me that loans taken out prior to 6 April 2006 which are for more than £25k are not covered by the CCA 1974.

 

Unfortunately your agreement is not covered by the New Act the limit was removed in April 2008.....your agreement remains unregulated but as I have said I believe an argument can be mounted that it is PARTLY regulated by the CCA 1974 on the multiple agreement agument.

I am not a lawyer and this is only my personal opinion.

 

 

sparkie

[frettful38]

Unfortunately your agreement is not covered by the New Act the limit was removed in April 2008.....your agreement remains unregulated but as I have said I believe an argument can be mounted that it is PARTLY regulated by the CCA 1974 on the multiple agreement agument.

I am not a lawyer and this is only my personal opinion.

 

 

sparkie

 

Thanks sparkie for clearing that up before I went and put my foot in it . I do believe that there are many other things that I can argue on even if it is not regulated, thanks to you, opening my mind to a whole new world.

 

I will let you know what my solicitor says as soon as I hear from him, with this update. Thanks again and good luck in your battles.

[Marky1701]

Hi All,

 

FYI here are some extracts taken from a letter from my MP after she had written to the Chief Exec of the OFT, John Fingleton and received his reply;

 

The MP quotes 'I very much hope the OFT investigations will result in Swift being brought to account for their underhand practices'

 

The letter from the Cheif exec of the OFT states;

 

'The OFT issued guidance covering second charge loans in July 2009 which is binding on lenders in the sector'

'Interest rate increases should only be made to recover genuine increases in costs related to the loan'

'As a result of concerns about a number of 2nd charge lenders the OFT launched an investigation and have written to a number of lenders and are now approaching the end of our investigation'

' We have started enforcement action where we have found it necessary, but are unable to comment on whether Swift is involved. Once our action is completed it will be made public'

 

Interesting stuff

[welshperson3]

Thanks as usual sparkie again, I have noted what you have said above and will be forwarding this on to my solicitor today. In the meantime, as I get told from everywhere that my agreement is unregulated as it is above the £25k, I was reading this part from the CCA 1974 and wandered what you thought.

 

Section 11 (1) © 1974 CCA

 

11.—(I) A restricted-use credit agreement is a regulated consumer credit agreement—

 

© to refinance any existing indebtedness of the debtor's, whether to the creditor or

another person, and " restricted-use credit" shall be construed accordingly.

 

 

Does that mean because I had to pay off my old loan from my current loan then that has made my loan regulated, as I had to refinance? because if it is then that is awesome.

 

(IMHO) if your new loan is still a secured loan agreement then yes it will be a regulated agreement.

But if your new agreement is now a first charge (MORTGAGE REGULATED BY THE FSA) then it wont come under the CCA 1974 rules.

 

BUT I KNOW A MAN WHO CAN TELL YOU

 

Specific queries regarding interpretation of the Act may be addressed to [email protected].

 

wp3

[welshperson3]

This is from OFT Consumer credit - regulated and exempt agreements

 

Variation of agreements

 

2.14 An unregulated agreement can become regulated because of a variation made to it. This can happen when the parties make a further agreement which varies or supplements the earlier one. In such a case, the Act regards the earlier agreement as having been revoked and replaced by a new agreement which incorporates the terms of the earlier agreement. This new agreement may be regulated under the Act even if the previous agreement was unregulated.

11

 

2.15 This does not however apply where the earlier agreement or the modifying agreement is exempt under section 16(6C) (regulated mortgage contracts and regulated home purchase plans) or section 16C (buy-to-let agreements). In such cases the earlier agreement and the modifying agreement are treated as separate for the purposes of the Act.

 

 

12

 

9

 

Section 13.

 

10

 

Section 14.

 

11

 

Section 82(2).

 

12

 

Section 82(2A).

 

4

 

7

 

2.16 If the earlier agreement was regulated under the Act, it cannot become unregulated because of a variation, unless the modifying agreement is for running-account credit or is exempt under section16(6C) or section 16C.

 

 

13

13 Section

[andrew1]

This is from OFT Consumer credit - regulated and exempt agreements

 

Variation of agreements

 

2.14 An unregulated agreement can become regulated because of a variation made to it. This can happen when the parties make a further agreement which varies or supplements the earlier one. In such a case, the Act regards the earlier agreement as having been revoked and replaced by a new agreement which incorporates the terms of the earlier agreement. This new agreement may be regulated under the Act even if the previous agreement was unregulated.

11

 

2.15 This does not however apply where the earlier agreement or the modifying agreement is exempt under section 16(6C) (regulated mortgage contracts and regulated home purchase plans) or section 16C (buy-to-let agreements). In such cases the earlier agreement and the modifying agreement are treated as separate for the purposes of the Act.

 

 

12

 

9

 

Section 13.

 

10

 

Section 14.

 

11

 

Section 82(2).

 

12

 

Section 82(2A).

 

4

 

7

 

2.16 If the earlier agreement was regulated under the Act, it cannot become unregulated because of a variation, unless the modifying agreement is for running-account credit or is exempt under section16(6C) or section 16C.

 

 

13

13 Section

 

Okay WP3 may I ask what your take is then in relation to OFT guidance as so described above on a Regulated loan Agreement secured by a 2nd charge loan by company 'A' say of 12k being absorbed into an Unregulated Agreement for say 40k with company 'B'...under a condition by Company 'B' when one requires a larger loan that the 2nd charge loan be cleared in their favour when granting a new loan?

 

There is reference on this forum to 'Once regulated, Always regulated' as confirmed by Prof Bennion. Thus any 2nd charge regulated loan absorbed into another should remain Regulated irrespective of the fact the larger amount in the new loan will be over the 25k boundary.

 

Be interested in your understanding from the OFT's point of view.

 

Thanks

[welshperson3]

Hi Andrew1

 

the point i was trying to show was that S140A CCA unfair relationship will apply to loans, as long as it is not a first charge mortgage regulated FSA.

 

The point you make about loan a being absorbed into loan b making loan b a regulated loan. then i would be of the opinion that it was a regulated loan if it was with the same provider. with a difrent company providing the loan then ? it is only my opinion so check for case law and also try here.

 

[email protected] ov.uk.

 

 

 

Consumer Credit Act 2006

 

Changes to the rules for loans to individuals

All loan agreements with individuals will be regulated by the Consumer Credit Act 1974 (CCA) irrespective of the amount of the loan

subject to certain exemptions.

Even if a loan agreement is exempt the new "unfair relationships" provisions of the CCA will apply.

The unfair relationships provisions will have retrospective effect in some cases.

What you should do now

First charge residential mortgage business is regulated by the FSA under the Financial Services and Markets Act. Second charge lending to

individuals below the £25,000 threshold is regulated by the CCA.

The current law

Changes made by the CCA 2006

Unfair relationships

The provisions of the CCA which allow a court to reopen credit agreements which are extortionate credit bargains will be replaced by

powers to intervene where the relationship between lender and borrower is unfair.

If a court finds that a relationship is unfair it will have wide powers to intervene including requiring amounts paid by the customer to be

repaid and altering the terms of the agreement or any related agreement.

A finding of unfairness can be based on any term of the agreement or a related agreement, the way in which the lender has exercised its

rights or any other thing which the lender or an associate has done or failed to do or any other matter which the court thinks relevant.

The unfair relationships provisions will not apply to regulated mortgage contracts but will apply to agreements subject to the high net

worth and business purpose exemptions.

If a customer alleges that his relationship with a lender is unfair, it is for the lender to prove the contrary.

The new unfairness provisions can apply retrospectively to a credit agreement made before they come into force if any sum is or may

become due under the agreement after the end of a transitional period of one year.

No definition of unfairness is given leaving considerable uncertainty as to the impact of the new provisions. The DTI apparently takes the

view that the impact is unlikely to be greater than that of existing legislation which uses the unfairness concept. However, existing

legislation has had considerable impact on residential mortgage terms and other agreements with consumers

 

 

Above is the unfair relationship, if you want to find out what constitutes unfair then look at this for guidance.

 

unfair terms in consumer contracts regulations 1999

 

wp3

Edited February 24, 2010 by welshperson3

[welshperson3]

WHO HASN'T BEEN TOLD HOW A VARIABLE INTEREST RATE IS CALCULATED.

 

 

unfair terms in consumer contracts regulations 1999

 

 

Written contracts

7. - (1) A seller or supplier shall ensure that any written term of a contract is expressed in plain, intelligible language.

 

(2) If there is doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail but this rule shall not apply in proceedings brought under regulation 12.

 

Effect of unfair term

8. - (1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.

[frettful38]

(IMHO) if your new loan is still a secured loan agreement then yes it will be a regulated agreement.

But if your new agreement is now a first charge (MORTGAGE REGULATED BY THE FSA) then it wont come under the CCA 1974 rules.

 

BUT I KNOW A MAN WHO CAN TELL YOU

 

Specific queries regarding interpretation of the Act may be addressed to [email protected].

 

wp3

 

Thank you WP3. My secured loan is the 2nd charge on my property. First charge is my mortgage company GMAC. My secured loan is over the £25k so is it still regulated?

[welshperson3]

Thank you WP3. My secured loan is the 2nd charge on my property. First charge is my mortgage company GMAC. My secured loan is over the £25k so is it still regulated?

 

 

if you took out the loan before the changes to the CCA 2006 than it is not fully regulated, but the unfair relationship part will apply to your loan.

The new test will apply to all consumer lending transactions and not just those regulated by the CCA 2006.

 

wp3

[cupcake68]

Hi WP

 

Can I please ask you a question?

 

I took out a loan with Blemain in Dec 2007 for well over 25K. The agreement states it is an unregulated loan.

 

Is my loan regulated or do I have the chance of claiming unfair relationship?

 

Great thread folks!

 

Cupcake

Edited February 24, 2010 by cupcake68

[busterg]

You are confusing me a little you say it is a mortgage/First Charge Loan.

 

Swift Advances only do Second Charge secured loans ...it is Swift Firstwho do First Charge mortgages........so who is yor mortgage loan what ever with.....Swift First or Swift Advances Plc???

Does your agreement say an Unregulated Consumer Credit Agreement?? or what exactly does it say.....Can you post it up use photo bucket ...remove personal details of course.

 

If you can prove that the Broker copied and pasted your signature forget about the OFT FSA etc etc go straight to the police and tell them that you want them to investigate your allegation of Fraud.....take the number of the police officer you report it to and get a crime number issued.

 

sparkie

 

sparkie

 

Hi Sparkie

 

Heres the documents:

 

I need to get a couple of more up adn will try later today. Thanks again for looking at these and to everyone here trying to help.

Key facts last Page picture by busterg_2010 - Photobucket

 

Legal charge picture by busterg_2010 - Photobucket

 

MortgageOfferPg1.jpg picture by busterg_2010 - Photobucket

 

MortgageOfferPg2.jpg picture by busterg_2010 - Photobucket

 

MortgageOfferPg3.jpg picture by busterg_2010 - Photobucket

 

MortgageOfferPg4.jpg picture by busterg_2010 - Photobucket

 

Key Facts pg1 picture by busterg_2010 - Photobucket

 

MortgageOfferPg5.jpg picture by busterg_2010 - Photobucket

[frettful38]

if you took out the loan before the changes to the CCA 2006 than it is not fully regulated, but the unfair relationship part will apply to your loan.

The new test will apply to all consumer lending transactions and not just those regulated by the CCA 2006.

 

wp3

 

Thanks wp3, I took my loan out in Sept 07 so where does that leave me?

[welshperson3]

Hi WP

 

Can I please ask you a question?

 

I took out a loan with Blemain in Dec 2007 for well over 25K. The agreement states it is an unregulated loan.

 

Is my loan regulated or do I have the chance of claiming unfair relationship?

 

Great thread folks!

 

Cupcake

 

my opinion is yes you can claim unfair relationship.

 

try this number and the answer that you get for your question will be the right answer.

 

For general enquiries and guidance on the work of OFT, please phone us on 08457 22 44 99 or email [email protected].

 

wp3

[welshperson3]

the unfair relationship covers loans whether they are regulated or not.

 

if its not a first charge mortgage, its not a business loan,

then just about every other loan comes under the unfair relationship rules.

[cupcake68]

Thanks WP!

 

I'll give them a call!

 

I have been trying to get an answer to this question for months!!

 

Cupcake