G E Money and Secret Commissions

[frettful38]

Went to court today for repossession hearing (secured loan). GE were granted suspended possession order. Disputed the entire agreement on the secret commission basis but got nowhere.

 

1.Previously SARNed GE and broker twice - no information provided about commissions.

2.Tried twice to get disclosure from GE/broker under CPR rules prior to hearing - No response.

3.Tried to get GE Solicitors to disclose - just ignored me.

4.Asked judge to order disclosure to ensure fair disposal of proceedings -He then told me the OFT Test Case on Bank Charges had dealt with Secret Commissions and that Hurstanger v Wilson was no longer precedent ? - He told me it was for me to prove a secret commission had been paid if that was my claim - because I couldnt adduce to him that a secret commission had been paid he was not prepared to order disclosure - tried to argue the case but basically he was not interested.

 

Any ideas/comments how to obtain the details if GE wont supply any information.

 

Sorry to hear your bad luck at court greedfighter, but I am sure there must be a way for you to get disclosure. Why did GE not abide by the CPR rules for disclosure? and I know it must be hard for you to prove that a secret commission has been paid as the onus is on you. With GE not co-operating it looks like a uphill struggle, but don't despair there will be a way out of this and you can appeal.

Hopefully 42man will drop in soon as he is well aware about how to request disclosure under the CPR rules and you are legally entitled to this information.

[andrew1]

Went to court today for repossession hearing (secured loan). GE were granted suspended possession order. Disputed the entire agreement on the secret commission basis but got nowhere.

 

1.Previously SARNed GE and broker twice - no information provided about commissions.

2.Tried twice to get disclosure from GE/broker under CPR rules prior to hearing - No response.

3.Tried to get GE Solicitors to disclose - just ignored me.

4.Asked judge to order disclosure to ensure fair disposal of proceedings -He then told me the OFT Test Case on Bank Charges had dealt with Secret Commissions and that Hurstanger v Wilson was no longer precedent ? - He told me it was for me to prove a secret commission had been paid if that was my claim - because I couldnt adduce to him that a secret commission had been paid he was not prepared to order disclosure - tried to argue the case but basically he was not interested.

 

Any ideas/comments how to obtain the details if GE wont supply any information.

 

 

Sorry to hear this Greedfighter, and I'm getting sick of reading how many people get shafted by Judges like this. What's happened to justice in this country? It's not until you get involved do you realise what an ass it all is. This is worse than politics and that's saying something.

 

We think all this is an exact science, the Judges don't...what on earth are the CPR's there for if not to comply with? at least he should have approved your request for disclosure. I'm sure many if not most of these Judges have no idea what it takes to retrace over the ground you walked to get there in the first place and get you case a decent hearing. Had one myself not so long ago and I went with a barrister to get an adjournment for a couple of months - cost me £460 for less than 5 minutes of a barking Judge who hadn't even read the papers. He refused so I had my 2 day hearing only to have it adjourned, which is what I asked for in the first place!

 

This secret commission business is serious but not taken seriously on either side of the legal spectrum. We have to find a way through.

Edited January 7, 2010 by andrew1

[frettful38]

Andrew1 you beat me to it there, we need to find a way for greedfighter to get disclosure any idea's on what next steps should be taken. Possibly through a solicitor?

[andrew1]

Sorry to hear your bad luck at court greedfighter, but I am sure there must be a way for you to get disclosure. Why did GE not abide by the CPR rules for disclosure? and I know it must be hard for you to prove that a secret commission has been paid as the onus is on you. With GE not co-operating it looks like a uphill struggle, but don't despair there will be a way out of this and you can appeal.

Hopefully 42man will drop in soon as he is well aware about how to request disclosure under the CPR rules and you are legally entitled to this information.

 

You are right frettful but going to appeal is not a cheap thing and is very stressful, why is it that we all have to keep going through all these hoops to do this?

[frettful38]

You are right frettful but going to appeal is not a cheap thing and is very stressful, why is it that we all have to keep going through all these hoops to do this?

 

 

Because they enjoy giving us the run around in the hope that we will give up I guess. Maybe greedfighter could scan up the loan agreement and we can see if there are any flaws in it along with any suspicion of secret commission being paid, just a suggestion.

[greedfighter]

Thanks chaps - I'm no lightweight when it comes to fighting my corner - This was the fifth hearing of the possession proceedings!

 

The first - was adjourned having successfully argued that i was waiting for disclosure.

The second - was adjourned by them - they were contacting and negotiating with me! actually they didnt contact me at all and didnt respond to me contacting them.

the third - I argued they had still not disclosed the information I sought but they said they would do so - so it was further adjourned.

the fourth - I argued that they had still not disclosed - the judge said he would give them more time and if the information was not forthcoming he would order disclosure at the next hearing.

 

the last - he changed his mind - I tried to argue they had been uncooperative, disclosure was essential to my defence and fair disposal of the proceedings. He told me under CPR an order by the court for disclosure was discretionary and should only be ordered where it will make a material difference to the case in hand (it does actually say that!). On that basis he told me in his opinion that disclosure would make no difference as to whether or not GE were entitled to possession. I argued that my arrears were eight hundred pounds thus if a secret commission was shown it would be returnable or the agreement voidable - the arrears would be cleared (even if the agreement wasnt void) and no right of action to possession would have existed. He sympathised but reiterated that I was making an assumption a secret commission had been paid. Again he reiterated that an assumption did not justify his ordering disclosure. He finished by saying if you re not satisfied sue the broker - he had got a bit annoyed at this point.

 

I havent give up - I'll clear the arrears - get the possession order lifted - regroup, collect more info and try again.

Edited January 7, 2010 by greedfighter
grammatical

[landy_alert]

Hi Greedfighter:)

 

Sorry to hear your news - this is all the more reason why it's such a shame that people like the OP don't return to share their experiences so that we can glean information to assist our own cases.

 

Glad to hear you don't intend to let them win despite this setback!

 

Landy x

[andrew1]

Glad to hear you are on top of this one greedfighter, not everyone can go this far, so well done for that.

 

Not sure if you did this already, but have you sent a Subject Access request to the Broker? This might prove they received a commission from GE. Ask them specifically. I did this with my broker. Not on a GE Loan, but I got my answer.

 

Edit:

 

Just picked this up from another thread too which might come in handy:

 

31 The actions of brokers and other intermediaries involved in marketing a lender’s

products can jeopardise the lender’s fitness to hold a consumer credit licence, as well as that of the broker. Section 25(2) of the Consumer Credit Act makes clear that the fitness of a licensee can be brought into question by the actions of any of its employees, agents or associates (whether past or present), and section 25(3) defines ‘associate’ for these purposes as including a business associate. A broker may be a business associate of a lender if the broker is tied to the lender (for example, through a right of first refusal agreement), or has an ongoing relationship with the lender, or frequently does business with the lender. This is a matter of fact and degree. It is not necessary for the purposes of determining that an association exists that any formal agency relationship should exist between the lender and the broker.

[beachcomber60]

I am so sorry to hear about this greedfighter, I to hope to use 'secret commissions' in my pending court 'battle'.

 

How come Hurstanger v Wilson is no longer precedent?

 

'B'

[Sparkie1723]

Use section 2 of The New Fraud Act ."concealment of documents you are legally entitled to have sight of" ......then watch them move.

 

sparkie

[frettful38]

Use section 2 of The New Fraud Act ."concealment of documents you are legally entitled to have sight of" ......then watch them move.

 

sparkie

 

 

Excellent advice sparkie as usual:D

[michellej]

absolute joke ,.. prove secret commission for disclosure ,... disclosure will prove everything so why twist it round , thought the proving laid with the lenders ,..

[frettful38]

absolute joke ,.. prove secret commission for disclosure ,... disclosure will prove everything so why twist it round , thought the proving laid with the lenders ,..

 

I agree and they know it does too that's why they do not want it disclosed as they know that would ope up a lot of floodgates for people to claim.

[michellej]

So how can they get away with it ,.. obviously this must breach the license they hold ,..you should not be able to pursue a debt if you do not have a signed agreement ,.. as the agreement would be the answer to all doubts and concerns ,.. so why are we not give the info when by not providing them they breach the license ,.. so if our judges are not prepared to listen because what hangs on things , then what would be the next step in getting justice ,.. as if the Minister of justice word means nothing , then who do we turn to ,... do we just say right , do as you feel fit ,.. as nothing we can do , and no court will go against you's , so yes whatever you say goes ,...

 

because to me , thats what it sounds like ,.. and seems to be the case after consumer after consumer are defeated in court even when going off previous precedents ,.. it totally wrong ,.. but what can you do?

Edited January 8, 2010 by michellej

[greedfighter]

Thanks everybody. I think the judge got it wrong on the 'OFT Test Case has settled all these matters'. I certainly think he was getting confused in the Hurstanger Wilson case. He seemed to categorise the secret commission matter as 'its a charge' rather than my argument of 'breach of fiduciary duty'.

 

Lets not put the dampers on it - its only his opinion - different judge may see it otherwise.

 

I could try and appeal - erred in fact and law - but I dont have that sort of money to spare just yet.

 

Still it's a suspended order and I can afford the terms so I havent lost my home. I'll be able to clear the arrears in two months, With 15 years to go on the mortgage that leaves me plenty of time to have another crack. if nothing else I have anoyed them for a bit LOL

[AA99]

Subbing:cool:

[frettful38]

Thanks everybody. I think the judge got it wrong on the 'OFT Test Case has settled all these matters'. I certainly think he was getting confused in the Hurstanger Wilson case. He seemed to categorise the secret commission matter as 'its a charge' rather than my argument of 'breach of fiduciary duty'.

 

Lets not put the dampers on it - its only his opinion - different judge may see it otherwise.

 

I could try and appeal - erred in fact and law - but I dont have that sort of money to spare just yet.

 

Still it's a suspended order and I can afford the terms so I havent lost my home. I'll be able to clear the arrears in two months, With 15 years to go on the mortgage that leaves me plenty of time to have another crack. if nothing else I have anoyed them for a bit LOL

 

 

Good luck greedfighter, please keep posted on any updates!!

[frettful38]

I was reading this article this morning and found it quite interesting,

 

 

The relationship between PPI and the Total Charge for credit? - Law Law Articles and News - Lawdit Reading Room

 

and this

 

http://www.courtsni.gov.uk/NR/rdonlyres/FBE7913D-39A7-4C0A-852E-684A92FBB36D/0/j_j_Master31.htm

 

http://www.hammonds.com/FileServer.aspx?oID=22791

 

http://www.lawreports.co.uk/WLRD/2009/CACiv/SouthernPacific_v_Walker.html

Edited January 15, 2010 by frettful38

[antiestablishment]

He sympathised but reiterated that I was making an assumption a secret commission had been paid. Again he reiterated that an assumption did not justify his ordering disclosure. He finished by saying if you re not satisfied sue the broker - he had got a bit annoyed at this point.

 

I havent give up - I'll clear the arrears - get the possession order lifted - regroup, collect more info and try again.

 

Im sorry to hear your case did not go in your favour at this time. I have read quite a posts where people (victims) have not been successful in court and it usually appears from the way in which people explain themselves that they place too much emphasis on the 'secret charges'.

 

From what you have written you are on the right lines but you need to lay emphasis on the conduct of the broker and his relationship with the lender, after all it is this relationship which will prove or disprove that the broker had acted in your best interest. If the broker had acted in your best interest he would have no problem disclosing the information which you asked for. In your case, you would only need to sow a few small seeds of doubt in the mind of the district judge/magistrate to put them in a position where they (judge/magistrate) need to have all the facts present to make the correct and informed judgement.

 

Below are the pertinent points of Hurstanger v Wilson that I feel are the crux of the these arguments; the secret payment is only the symptom so to speak, the disease is the relationship between the broker/lending institution, and it is the relationship and conduct of those people supposedly engaged by you to act on your behalf that you should be questioning:

 

(Hurstanger v Wilson Texts exert)

 

34. Certain things are clear. The defendants retained the broker to act as their agent for a substantial fee. The contract of retainer contained the usual implied terms, but the relationship created was obviously a fiduciary one. As a fiduciary the agent was

required to act loyally for the defendants and not put himself into a position where he

had a conflict of interest. Yet he agreed that he would be paid a commission by the

other party to the transaction which his clients had retained him to procure. By doing

so he obviously put himself into a position where he had a conflict of interest. The

defendants were entitled to expect him to get them the best possible deal, but the

broker’s interest in obtaining a further commission for himself from the lender gave

him an incentive to look for the lender who would give him the biggest commission.

 

35. The broker could only have acted in this way if the defendants had consented to his doing so “with full knowledge of all the material circumstances and of the nature and the extent of [his] interest”. (Bowstead Article 44, 18th Edition [6-055] – duty to make full disclosure). An agent who receives commission without the informed consent of his principal will be in breach of fiduciary duty. A third party paying commission knowing of the agency will be an accessory to such a breach. The remedies for breach of fiduciary duty are equitable: they of course include rescission and compensation.

 

36. What amounts to sufficient disclosure for these purposes? Bowstead says:

6-057. Consent of the principal is not uncommon. But it must be positively

shown. The burden of proving full disclosure lies on the agent and it is not

sufficient for him merely to disclose that he has an interest or to make such

statements as would put the principal on inquiry: nor is it a defence to prove that had he asked for permission it would have been given.

 

I think this is an accurate statement of the law. Whether there has been sufficient disclosure must depend upon on the facts of each case given that the requirement is for the principal’s informed consent to his agent acting with a potential conflict of interest.

 

 

The last statements highlighted are very important. It is not about assuming a payment has been made as this is irrelevant, you need to question the original placement of the loan and the reasons/actions of lender/broker in placing the loan.

 

Greedfighter, in your case the judge was incorrect as the Broker and Lender have joint fiduciary duty, the acceptance of fees wether disclosed or not inextricably links the two and the law recognises this. Your case would appear that you do not have the information at this time to know if you have or had enough information to make an informed choice at the time of entering into the deal. The judge possibly did not understand this is exactly what you were asking for.

[antiestablishment]

I forgot to say its all about the wording of the argument!

 

As an aside, some cases I believe have been concluded or settled with the lenders asking for privacy, as in the individuals concerned are not allowed to discuss it further after settlement is reached.

[andrew1]

One or two people I know have managed to get screenshots from their brokers systems showing commissions paid which supports the payments aspect, although I take the point above about the fact the payment is but one part of this. Just useful to know as I also know of lenders defending in court under oath saying they never paid a commission and they had no agents...lying g*ts! These screenshots prove otherwise.

[beachcomber60]

Interesting last few posts, in my case the dca issued court claim & under CPR 31:14 has disclosed the underwriters sheet showing three commissions , the same sheet provided by the OC following SAR shows commissions tipexed out ( but ONLY two commissions - can by seen when holding sheet up to the light).

 

OC & PPI provider ignore requests for info & broker refuses to communicate unless I do so through their solicitor (who has just informed me that their client rejects all liabilty & is not open for further dicussion).

 

Whats my chances using this as my defence?

 

Beachy

[andrew1]

Interesting last few posts, in my case the dca issued court claim & under CPR 31:14 has disclosed the underwriters sheet showing three commissions , the same sheet provided by the OC following SAR shows commissions tipexed out ( but ONLY two commissions - can by seen when holding sheet up to the light).

 

OC & PPI provider ignore requests for info & broker refuses to communicate unless I do so through their solicitor (who has just informed me that their client rejects all liabilty & is not open for further dicussion).

 

Whats my chances using this as my defence?

 

Beachy

 

You might like to liaise with pt on this as I think he's familiar with secret commission / Underwriter sheet issues which have either been blanked out or tipexed. It certainly gives credibility to your argument, but it all depends on your documentation and what it says..also see Wilson v Hurstanger. Sadly, I'm no expert on this, but trying to get underwriter sheets from some lenders is criminally denied. (or should I say unlawfully as they are attempting to deceive)

[antiestablishment]

Interesting last few posts, in my case the dca issued court claim & under CPR 31:14 has disclosed the underwriters sheet showing three commissions , the same sheet provided by the OC following SAR shows commissions tipexed out ( but ONLY two commissions - can by seen when holding sheet up to the light).

 

OC & PPI provider ignore requests for info & broker refuses to communicate unless I do so through their solicitor (who has just informed me that their client rejects all liabilty & is not open for further dicussion).

 

Whats my chances using this as my defence?

 

Beachy

 

I am not an expert here, but from your postings you are in slightly stronger position than Greedfighter as in that you have documents in your possession that can be seen to have been altered. You should launch a counter claim to get the original documents, sighting the reasons listed above from the Hurstanger case, that you were not given all the information regarding payments and commissions at the start of the loan, and thus you could not have made an informed decision, you have engaged the broker in this case to act on your behalf and you are seeking to prove that they did not act in your best interests.

 

Its up to the judge to decide if the payment was illicit or otherwise, but its (the payment of commission) very presence on the documents should be enough for the magistrate/judge to order further disclosure from the lender and/or broker.

 

Again to re-itterate the point here, you are arguing that the broker did not act in your best interest in the case of the loan/PPI and as such misplaced that trust or acted other than in accordance with your wishes and thus WITHOUT your consent, breaching the 'fiduciary duty' which is required in law. The payment is irrelevant to you, the effect of its receipt on the broker's decision is pertinent.

[frettful38]

Im sorry to hear your case did not go in your favour at this time. I have read quite a posts where people (victims) have not been successful in court and it usually appears from the way in which people explain themselves that they place too much emphasis on the 'secret charges'.

 

From what you have written you are on the right lines but you need to lay emphasis on the conduct of the broker and his relationship with the lender, after all it is this relationship which will prove or disprove that the broker had acted in your best interest. If the broker had acted in your best interest he would have no problem disclosing the information which you asked for. In your case, you would only need to sow a few small seeds of doubt in the mind of the district judge/magistrate to put them in a position where they (judge/magistrate) need to have all the facts present to make the correct and informed judgement.

 

Below are the pertinent points of Hurstanger v Wilson that I feel are the crux of the these arguments; the secret payment is only the symptom so to speak, the disease is the relationship between the broker/lending institution, and it is the relationship and conduct of those people supposedly engaged by you to act on your behalf that you should be questioning:

 

(Hurstanger v Wilson Texts exert)

 

34. Certain things are clear. The defendants retained the broker to act as their agent for a substantial fee. The contract of retainer contained the usual implied terms, but the relationship created was obviously a fiduciary one. As a fiduciary the agent was

required to act loyally for the defendants and not put himself into a position where he

had a conflict of interest. Yet he agreed that he would be paid a commission by the

other party to the transaction which his clients had retained him to procure. By doing

so he obviously put himself into a position where he had a conflict of interest. The

defendants were entitled to expect him to get them the best possible deal, but the

broker’s interest in obtaining a further commission for himself from the lender gave

him an incentive to look for the lender who would give him the biggest commission.

 

35. The broker could only have acted in this way if the defendants had consented to his doing so “with full knowledge of all the material circumstances and of the nature and the extent of [his] interest”. (Bowstead Article 44, 18th Edition [6-055] – duty to make full disclosure). An agent who receives commission without the informed consent of his principal will be in breach of fiduciary duty. A third party paying commission knowing of the agency will be an accessory to such a breach. The remedies for breach of fiduciary duty are equitable: they of course include rescission and compensation.

 

36. What amounts to sufficient disclosure for these purposes? Bowstead says:

6-057. Consent of the principal is not uncommon. But it must be positively

shown. The burden of proving full disclosure lies on the agent and it is not

sufficient for him merely to disclose that he has an interest or to make such

statements as would put the principal on inquiry: nor is it a defence to prove that had he asked for permission it would have been given.

 

I think this is an accurate statement of the law. Whether there has been sufficient disclosure must depend upon on the facts of each case given that the requirement is for the principal’s informed consent to his agent acting with a potential conflict of interest.

 

 

The last statements highlighted are very important. It is not about assuming a payment has been made as this is irrelevant, you need to question the original placement of the loan and the reasons/actions of lender/broker in placing the loan.

 

Greedfighter, in your case the judge was incorrect as the Broker and Lender have joint fiduciary duty, the acceptance of fees wether disclosed or not inextricably links the two and the law recognises this. Your case would appear that you do not have the information at this time to know if you have or had enough information to make an informed choice at the time of entering into the deal. The judge possibly did not understand this is exactly what you were asking for.

 

 

Excellent information and advice, well done. We need information like this to keep this thread alive and letting people know about their rights, I am very impressed.