Swift Advances. Secured Loan Charges reclaim

[frettful38]

I can only suggest you try to find a more competent solicitor then

G

 

 

good advice, i think i will do that after i have had a long think on what to respond to letter that they wrote to me.

[Killerschick]

KC Im confused. Can you explain how equitable assignment becomes a legal one as soon as it's not a secret?:confused:

 

 

Maybe the use of the word secret was not that helpful. What the Act says is that an assignment becomes legal when written notice is given to the debtor.

 

Generally there are two types of assignment - legal and equitable. It will usually be intended at the outset that a particular type of assignment will be used to achieve the desired effect for the parties concerned.

 

Legal assignment is used when the assignee wants to take on all the rights of the original creditor i.e. the ability to sue the debtor. This is used in the debt purchase industry by the likes of Cabot, Aktiv, Link, Capquest etc because they want to be able to sue debtors (sorry to be using that word I find it somewhat derogatory but I'm just lifting it from the Act). In order to take on these legal rights either the original creditor or the assignee must give written notice of assignment to the debtor to make it legal.

 

Equitable assignment is used when the assignee wants to take on the benefit of the asset but not the legal rights of the original lender. This is used as the means for securitising debts where the right to sue remains with the original creditor.

 

Usually the only situation where an equitable assignment becomes a legal one is where it was always intended that it would be a legal assignment but there is some delay in giving notice to the debtor.

 

Swift's assignments to Kestrel were never intended to be legal as Swift obviously wants to retain the right to bring legal proceedings. Therefore Swift would not give notice to customers about the assignment in fact they would specifically not want to as this would change the nature of the assignment to a legal one and they would lose the right to sue.

 

The fact that people have become aware of the assignments by other means such as reference to the company accounts makes no difference. Notice has not been given to Swift's customers by either them or the relevant Kestrel company so the assignments remain equitable and Swift retains the right to sue.

 

I hope this is clearer but if not please let me know.

 

KC

[Sparkie1723]

Sorry to disagree KC ........but Swift have not assigned their loans and morgages they have sold them OUTRIGHT ...there is on record in an email from Mr Mark White that "Swift"????? do not securitise their loans, their .

company accounts state that they sold them.

Also with regard to Swifts renewal application this will be considered....so you see they are not home and dry on this iisue YET

 

In assessing fitness we focus on:

• evidence that raises doubts about the personal integrity of individuals running or controlling a licensed business, and business activities that because of either their nature or past association with high levels of complaint have a greater potential for consumer detriment

any breach of other consumer protection law, including that relating to misleading advertisements, price indications and product descriptions, harassment of debtors, unfair contract terms, and distance selling

• any breach of the rules or principles of the Financial Services

Authority (FSA) Business activities for which we are likely to require a CRP include secured sub-prime lending and lending in the home. One of the OFT's main regulatory interests in these areas will be to ensure that lending takes place responsibly. 'Irresponsible lending' is now cited specifically in the fitness test as a business practice that we may consider deceitful or oppressive or unfair or improper. Lending irresponsibly will therefore call into question your fitness to be licensed. When considering your fitness, we may ask you to explain the policies and practices that you intend to follow, for example, in assessing ability to repay a loan.

sparkie

Edited April 14, 2010 by Sparkie1723

[landy_alert]

UNFAIR RELATIONSHIP

 

questions and answers

 

Does the 'Unfair Relationship' section under the 2006 Act cover unregulated agreements over 25K, that were taken out before the act came in to force?

YES IF THE LOAN AGREEMENT CONTINUES FOR ONE YEAR AFTER THE ACT CAME INTO FORCE

 

Or unregulated agreements over 25K taken out after 2006?

YES IT IS (UNLESS IT IS A FIRST CHARGE MORTGAGE)

 

or unregulated agreements over £25,000 taken out before the act came into force and which were settled in the second half of 2007?

YOU WILL HAVE TO CHECK THE DATES, IF THE LOAN RAN FOR 12 MONTHS AFTER THE ACT CAME INTO FORCE THEN I THINK THE ANSWER IS YES,

BUT IT IS ALL ABOUT THE DATES

 

WP3

 

Thanks WP3 - that's very helpful!

 

Landy x

[Killerschick]

Sorry to disagree KC ........but Swift have not assigned their loans and morgages they have sold them OUTRIGHT ...there is on record in an email from Mr Mark White that "Swift"????? do not securitise their loans, their .

company accounts state that they sold them.

Also with regard to Swifts renewal application this will be considered....so you see they are not home and dry on this iisue YET

 

In assessing fitness we focus on:

• evidence that raises doubts about the personal integrity of individuals running or controlling a licensed business, and business activities that because of either their nature or past association with high levels of complaint have a greater potential for consumer detriment

 

any breach of other consumer protection law, including that relating to misleading advertisements, price indications and product descriptions, harassment of debtors, unfair contract terms, and distance selling

 

• any breach of the rules or principles of the Financial Services

Authority (FSA) Business activities for which we are likely to require a CRP include secured sub-prime lending and lending in the home. One of the OFT's main regulatory interests in these areas will be to ensure that lending takes place responsibly. 'Irresponsible lending' is now cited specifically in the fitness test as a business practice that we may consider deceitful or oppressive or unfair or improper. Lending irresponsibly will therefore call into question your fitness to be licensed. When considering your fitness, we may ask you to explain the policies and practices that you intend to follow, for example, in assessing ability to repay a loan.

 

sparkie

 

Hi Sparkie,

 

I don't understand why you disagree with me - I am not saying the accounts have not been sold in fact I agree that they have.

 

The assignment is simply the means by which the sale is put into effect. For example if you sold your house you would also need to transfer it with the land registry for the outcome of the sale to be put into effect i.e. the new owner registered. Or if you paid for something in a shop you would effect the sale by picking it up and taking it away with you. The assignment itself is a document specifying the terms and conditions of the sale and the assets being sold.

 

Assignments may be used as a means of securitising debts but they can also be used in other ways. I would not like to comment on whether or not Swift securitise as I do not have enough knowledge to determine their reasoning behind the assignments to the Kestrel companies. It might simply be for protection of assets in the event of Swift being made bankrupt.

 

Perhaps you disagree with my statement that Swift retain the right to bring legal proceedings as the assignment is equitable? I was simply trying to put across the legal position (as I understand it from the legal training I have had) in response to queries which had been raised.

 

KC

[Sparkie1723]

Hi Sparkie,

 

I don't understand why you disagree with me - I am not saying the accounts have not been sold in fact I agree that they have.

 

The assignment is simply the means by which the sale is put into effect. For example if you sold your house you would also need to transfer it with the land registry for the outcome of the sale to be put into effect i.e. the new owner registered. Or if you paid for something in a shop you would effect the sale by picking it up and taking it away with you. The assignment itself is a document specifying the terms and conditions of the sale and the assets being sold.

 

Assignments may be used as a means of securitising debts but they can also be used in other ways. I would not like to comment on whether or not Swift securitise as I do not have enough knowledge to determine their reasoning behind the assignments to the Kestrel companies. It might simply be for protection of assets in the event of Swift being made bankrupt.

 

Perhaps you disagree with my statement that Swift retain the right to bring legal proceedings as the assignment is equitable? I was simply trying to put across the legal position (as I understand it from the legal training I have had) in response to queries which had been raised.

 

KC

HI mate,

 

The reason I disagree is in your own argument

1....Swift Advances Plc categorically state that they do not securitise ANY of their loans.

 

2...Their accounts state clearly that they have SOLD them ...not assigned them ...I can assure you nowhere in companies house is there any records of what they have done EXCEPT to selling them

 

3...The term in their agreements says as follows

" we may transfer our rights under this agreement to another firm"

It does not say "Part of our rights" it does not say " Any of our rights" it does not say " Some of our rights" ....as do the vast majority of other lenders agreements state.

 

Having some knowledge of the law ( which I haven't.)..I base my views on pure logic) surely you must agree under these circumstances when this term is invoked as Swift Advances Plc have invoked it ....it means ALL their rights and that includes the transfer of the title also they cannot split it as and at their whim and decide what and which they transfer ...it must be all or none.

Anything else would/should be considered a unilateral altering of the agreement and considered a grossly unfair action.

 

What further makes me believe this is that to borrow the amount of money that Kestrel did they could not borrow it on Equity value alone ...they must have held Title.....even if they only did for a short space of time .....evryones title entry on thie deeds was incorrect it should have been changed to Kestrel and the changed back IF Kestrel GAVE the titles back .... but they must have held them at one time....I believe they still do.

 

Unless my logic is wrong................I have brought this aspect to the attention of the OFT for them to consider along with Swift Advances Plc licence renewal application.

I do welcome ANYONES contra arguments it helps to get to the bottom of what they are exactly doing, which is a very dificult task.

 

 

sparkie

Edited April 14, 2010 by Sparkie1723

[Killerschick]

HI mate,

 

The reason I disagree is in your own argument

1....Swift Advances Plc categorically state that they do not securitise ANY of their loans.

 

2...Their accounts state clearly that they have SOLD them ...not assigned them ...I can assure you nowhere in companies house is there any records of what they have done EXCEPT to selling them

 

3...The term in their agreements says as follows

" we may transfer our rights under this agreement to another firm"

It does not say "Part of our rights" it does not say " Any of our rights" it does not say " Some of our rights" ....as do the vast majority of other lenders agreements state.

 

Having some knowledge of the law ( which I haven't.)..I base my views on pure logic) surely you must agree under these circumstances when this term is invoked as Swift Advances Plc have invoked it ....it means ALL their rights and that includes the transfer of the title also they cannot split it as and at their whim and decide what and which they transfer ...it must be all or none.

Anything else would/should be considered a unilateral altering of the agreement and considered a grossly unfair action.

 

What further makes me believe this is that to borrow the amount of money that Kestrel did they could not borrow it on Equity value alone ...they must have held Title.....even if they only did for a short space of time .....evryones title entry on thie deeds was incorrect it should have been changed to Kestrel and the changed back IF Kestrel GAVE the titles back .... but they must have held them at one time....I believe they still do.

 

Unless my logic is wrong................I have brought this aspect to the attention of the OFT for them to consider along with Swift Advances Plc licence renewal application.

I do welcome ANYONES contra arguments it helps to get to the bottom of what they are exactly doing, which is a very dificult task.

 

 

sparkie

 

Hello again Sparkie

 

1. I am not addressing any issues regarding whether Swift securitise or not. I have seen the arguments on both sides and don't understand their business well enough to take a position on the issue. The loans are clearly being moved off Swift's balance sheet to the Kestrel companies but as to why? As I said it could be to protect assets if the operating company(s) went bust but it could also be to do with funding.

 

2. The terms sale and assignment are not mutually exclusive they are the same. Sale = assignment. In the debt purchase market the assignment documents are even called 'sale and purchase agreements'. I don't know how else I can explain it other than the examples in my previous post. The assignment is just the means by which the sale is put into effect.

 

3. Regardless of what the contract says if an assignment of a debt is only equitable i.e. notice is not given to the debtor, the right to sue remains with the assignor. It would be down to a court to determine whether Swift had exceeded it's contractual rights in conducting an assignment in this way. In my view (for what it's worth!) the wording is wide enough for a judge to go either way.

 

KC

[westlandbabe]

Sparkie, can I refer you back to post 64 if you don't mind......my agreement with Swift Advances plc is exactly the same as your friends. It does not show APR in the box and talks about TAKING the fees from the Total Loan Amount. My agreement is literally word for word same except for the loan amounts, names etc.

 

What does this mean for me? I know if I go back through the posts I'll get an idea but I was hoping you wouldn't mind summarising for a novice?

 

Many thanks!

[Marky1701]

Hi All,

 

So what was the outcome of the High Court yesterday?

 

Anything noteworthy?

 

m

[westlandbabe]

Sorry, me again Sparkie. Can I just add that I know they added them as on a statement I asked them for (never received any before or since I might add) the total loan amount is shown as £71,955. Also, they have listed my repayments as £753 over 300 months on 11.91% interest but according to my workings it should only be £735.

 

Furthermore, this amount changed from £753 to £785 in August 2007, 3 months after the agreement started, without ANY notification or justification from Swift.

 

Many thanks in anticipation of your help with this, or indeed anyone else that can post or where that leaves me .

Thanks guys!

[lookinforinfo]

Westlandbabe, included in the following pamphlet from the OFT is how they calculate the APR.

If you follow their method, and your figure remains the same, it would appear that you may have an unenforceable agreement.

http://oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft144.pdf

 

It also explains how to work out the total charge for credit

Edited April 14, 2010 by lookinforinfo

[Killerschick]

Westlandbabe, included in the following pamphlet from the OGT is how they calculate the APR.

If you follow their method, and your figure remains the same, it would appear that you may have an unenforceable agreement.

http://oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft144.pdf

 

It also explains how to work out the total charge for credit

 

 

Unfortunately Westlandbabe's loan was unregulated as it was over the limit of £25,000 which was stipulated in the CCA at the time and also on a buy to let property.

[Sparkie1723]

Westlandbabe, included in the following pamphlet from the OGT is how they calculate the APR.

If you follow their method, and your figure remains the same, it would appear that you may have an unenforceable agreement.

http://oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft144.pdf

 

It also explains how to work out the total charge for credit

 

Good advice LFI.....there is another very good easier calculation site that is 99.9% accurate its called Prudent Minds shows very clearly how to calculate APR's from the loan agreement details ....in court M White stated that he had considered the APR on our agreement ( shown as 9.84%) and found it to be correct....the Judge accepted his word over mine....I had used this calculation and checked and double checked it and the calculation came out as 15.4%

Of course this is a prime example that LIP's are looked upon by the COURTS as Duck Eggs........having now had this APR independantly checked by an accountant....my calculation is correct Mr Whites calculation is wrong.....is this as TIE says is just "my bad luck or another fairy story"

Oh I have done what he/she does not like .....emphasising in bold type ...sorry!!!!...........he does not like the symbols either

 

sparkie

[westlandbabe]

Thanks LFI, I looked at the OFT site and unfortunately it is WAY beyond my capabilities of mathematical equations! Will try Sparkies suggestion. KC, hear your point but what exactly does that mean? That even if they have worked out the APR incorrectly and my original credit agreement is complete jargon and contradicts itself that I have no argument?

 

Sorry guys, this is all really confusing for me.

Thanks!

[Sparkie1723]

Hi again Killerschick.

I do not think this can be accepted as it would mean that contracts are not binding and are a waste of time anyone signing them, I do not understand you saying this.

Notice of any assignment must be given to the debtor, the debtors agreement to it is not required but notice MUST be given.....all other creditors have to give notice of assignment that is a presumption of fact in all cases as has been ruled in countless cases....Can you explain why should Swift not be required to do so?

 

sparkie

Quote;

£3. Regardless of what the contract says if an assignment of a debt is only equitable i.e. notice is not given to the debtor, the right to sue remains with the assignor. It would be down to a court to determine whether Swift had exceeded it's contractual rights in conducting an assignment in this way. In my view (for what it's worth!) the wording is wide enough for a judge to go either way"

[westlandbabe]

PS: Just checked with Prudent Minds and it comes out at £732.61 NOT the £753.07 as stated in my credit agreement. So?

[Apollo18]

Hi All,

 

Excellent posting KC.....Very informative.

 

It looks to me that Swift probably do securitise regardless of what Webster and Co have stated. After all Swift Advances plc used to be called Purbeck House Securities Ltd.

 

Apollo18

[Killerschick]

Hi again Killerschick.

I do not think this can be accepted as it would mean that contracts are not binding and are a waste of time anyone signing them, I do not understand you saying this.

Notice of any assignment must be given to the debtor, the debtors agreement to it is not required but notice MUST be given.....all other creditors have to give notice of assignment that is a presumption of fact in all cases as has been ruled in countless cases....Can you explain why should Swift not be required to do so?

 

sparkie

Quote;

£3. Regardless of what the contract says if an assignment of a debt is only equitable i.e. notice is not given to the debtor, the right to sue remains with the assignor. It would be down to a court to determine whether Swift had exceeded it's contractual rights in conducting an assignment in this way. In my view (for what it's worth!) the wording is wide enough for a judge to go either way"

 

Hi Again!

 

Going back to my original post, Section 136 of the Law of Property Act 1936 requires notice to be given in writing in order for the assignee to be able to sue the debtor:-

 

136.

Legal assignments of things in action

 

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

© the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

(a) that the assignment is disputed by the assignor or any person claiming under him; or

(b) of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the M1 Trustee Act, 1925.

(2) This section does not affect the provisions of the M2 Policies of Assurance Act, 1867.

The important bit being the express notice bit emboldened above which is what makes the difference between a legal and equitable assignment.

 

If the assignee does not want to take on all the rights of the original creditor (as is the case with Swift/Kestrel where Swift keep the right to sue) they do not need to give notice to the debtor and as far as the debtor is concerned there is no change in who they owe the money to or who can bring a claim against them.

 

You haven't cited any specific cases but I perhaps the ones you are referring to would relate to legal assignments such as those to debt purchasers where the assignee wants to be able to sue and wants to take on all the rights of the original creditor. I have been involved in a number of cases (at county court level so unreported) involving debt purchasers where the service and validity of the notice of assignment has been at issue and therefore whether the debt purchaser had the right to sue.

 

KC

[Killerschick]

Hi All,

 

Excellent posting KC.....Very informative.

 

It looks to me that Swift probably do securitise regardless of what Webster and Co have stated. After all Swift Advances plc used to be called Purbeck House Securities Ltd.

 

Apollo18

 

 

Thank you Apollo18!

 

For anyone who's finding my attempts at explaining legal vs equitable assignment as clear as mud here are some external links which might help:

 

http://www.lawdit.co.uk/reading_room/room/view_article.asp?name=../articles/Assigning%20a%20debt%20or%20contract%20Article.htm

http://www.insolvency.gov.uk/freedomofinformation/technical/TechnicalManual/Ch25-36/Chapter31/part9/part4/part_4.htm

http://www.vinodkothari.com/glossary/Eassignm.htm

http://law.jrank.org/pages/13986/assignment.html

http://www.proeconomics.com/Law/Banking/Legal_and_Equitable_Assignment.html

http://ld.practicallaw.com/2-107-6540

Some of them (the insolvency service particularly) are a bit legalese but practical law gives a nice concise definition and some of the other articles might help.

 

KC

[Sparkie1723]

Hi Killerschick,

Whilst I concur that you have a much greater knowledge of the law than I do, and have more knowledge about Assignments and the legalities of them.

What I am in dispute with is the following.

Swift Advances Plc transferred £200m of loans and mortgages to the Kestrel Companies in the year my loan was sold.

They did this to obtain further funding

Point 1

Why did they do this? …….Because they had reached their funding limit with Barclays and could not draw down any more.

Point 2

Mark White stated in Court that lenders will only lend up to 70% on Equitable value, which meant if it had been an Equitable assignment would have realised only £140m.

Point 3

Kestrel obtained the full £200m and passed it on to Swift Advances Plc.

In other words Kestrel did not buy them from their own funds ( they had none) …they borrowed the money first and then paid Swift the full £200m.

The only way that was possible is that Swift Advances Plc had to have transferred the Title Equity as well as the Equitable value…..without the titles to all these loans, they could not have borrowed the full value only a maximum of £140m.

This is my argument and the reason why I have always advocated that Swift Advances Plc And Swift 1st Ltd have no right to sue…the Land Registry entries are all incorrect, but because Swift will not divulge this information and us (the consumer) are having are property unlawfully repossessed.

The Kestrel name cannot be stated on these title deeds as they are in fact “Ghost” companies set up under a smokescreen of their Principle Business activity as lending money to the domestic market, when in fact they do no such thing, except borrow on behalf of Swift Advances Plc, that is all they are used for……that is why Mr Webster & Mr White state that they do not securitise, all records and dealings are kept on the internal accounting systems of the Kestrel group the deals etc etc etc never leave them and why I claim are fraudulently manipulated.

Securitisation is complicated and hard to understand, ….but what this whole small Group of companies do is VERY VERY clever.

 

It is this reasoning why certain people think I am loopy.......but until someone explains how they can do this I willcontinue to be Loopy.

sparkie

[Apollo18]

Does this not suggest that Swift/Kestrel do indeed securitise?

 

CISX - Listed Security Detail - GB00B3KJXL9 - Kestrel Acquisitions Ltd

 

Apollo18

[pkelly]

A truly wise man never plays leap frog with a unicorn,

so I see no point in going over everything with people we dont know or can trust??? we have to prove nothing to anyone, If any of you newbees want any information why not pm instead. or as in Ties case at least answer the pms.

There is nothing wrong with having nothing to say unless you insist

on saying it & Don't try to talk sense to a fool; he can't appreciate it.

[westlandbabe]

Thanks for that pkelly, very informative and helpful!

 

I'm going to assume you're referring to my good self when you nod to the 'newbees'. Last time I looked however, this forum was designed for general discussion to provide help and advice for those with debt and financial institution problems, the 'consumer community' indeed! At the risk of sounding like, in your good opinion, a fool, what indeed does 'pm' mean? Perhaps if I knew I would do it but then that it probably down to my unfortunate luck of being 'new' to the boards, something not greatly appreciated round here.

 

Thanks to those of you who have actually been helpful but I'll take my queries and problems, and seek help, from elsewhere. I won't use a quote to finish my rant thanks pkelly, as in my humble opinion as a journalist and magazine editor, people generally only use quotes from other people when they have nothing intelligent to say for themselves!!!

 

PS: When did the world get so distrusting???

[busterg]

WLB

 

I don't think anyone is having ago. It can be frustrating as a newbie wanting answers. But as others have posted in the past read through the the thread. I know it's a long task - but it's the only way you'll pick up the information you are looking for.

 

Given your background as a journalist you prob better placed to get through it.....and I have no doubt you will go over it all again given the wealth of info on here.

 

We've all got so much going on with this shower that we are at different points with Swift. Having to go back over points we've covered can be frustrating to many on the forum and soem of us are at a crucial point in our particular cases.

 

It's not a fob off, honestly it's not. Just take the time to go through the thread.

 

When did the world get so distrusting? - when we got involved with Swift!! Oh and when they changed Marathon to snickers!

[Apollo18]

Hi,

 

westlandbabe.....pm = private message