unfair relationship test

[peskywabbit]

I am currently being taken to court by Black Horse Finance for arrears of £2409.60 on a secured loan of £10,000 (£12,654.19 with PPI). The activity collection charges are £585. I have a chequered employment history and in 2007 had periods of unemployment. I have always endeavored to maintain some monthly payments and understood (written confirmation from BHF) that the arrears were being written back into the loan. I was self-employed at the time i took the loan out but was still sold the PPI. I haven't claimed for this or for the charges.

 

I obtained all the information BHF held on me under Data Protection Act, which included a log of calls and actions on my account.

 

Original loan offered at 6.4% APR with Dial-a loan. Then passed to BHF.

 

Taken out at 10.9%APR .866%

 

My earnings at the time after deductions were £135 per week (from tax statement). Poverty line for 2005 for single person £100 per week after deductions (source UK government).

 

Declared earnings

 

Pay slip w/e 23.04.04

£164.99 no deductions because self-employed.

 

Earnings from bank statement copied by BHF:

Total £1669.53

Average for 12 weeks = £139.13

 

These are the figures BHF had when I applied for the loan in the form of pay slip and bank statements.

 

No enquiry was made as to employment status even though that would impact on the insurance. Pay slip shows no deductions and is obviously for a self-employed person. Most couriers are self employed.

 

No insurance schedule provided to my knowledge. Have all paperwork to do with loan on file.

 

Collection activity charges don’t reflect the actual cost of administering the defaults and are an illegal money making exercise.

 

One of the grounds for possession was that I defaulted in January 2005. In fact I had tried to arrange a payment break for January 2005 and was informed there was some electronic problem and agent would call me back when it was sorted out. Assumed it had been set up and BHF twice went ahead with Direct Debit. Later accepted their mistake and issued full refund of bank charges incurred. The account log for 09.02.05. admits BHF error. According to account log this wasn’t being done due to the lower interest rate. This is just an exercise to establish I’m a long term defaulter.

 

My main period of not paying the full amount was in 2007 – and I still couldn’t afford to pay the full amount at present.

 

Have written numerous times querying the way loan was set up but received no written answer.

 

Understood from telephone conversations and confirmed by letter that arrears were being written back into the loan.

 

Was informed by telephone that rate would be reduced to 6.4%APR. This was after some bargaining around another issue – I think to do with the repayment holiday debacle.

According to the account logs obtained under Data Protection Act the interest was reduced to 6.4% but with no effect on repayments. Subsequently wrote asking for interest rate with a view to reducing payments but never informed what interest rate was. From Court claim interest rate has always been 10.9%APR .866%. The account log shows several actual or intended shifts in the interest rate.

 

 

Spring and summer of 2007 was hired and rapidly laid off two decorating jobs due to the weather. Was claiming JSA intermittently during that time but unable to claim protection because I was self-employed.

 

Also couldn’t claim after an operation because I was deemed to have a pre-existing medical condition.

 

Have always attempted to keep up payments and have done so for the large part.

 

I am wondering whether I could use the unfair relationship test as my defence as I would basically have been below the poverty line when the loan was taken out, which BHF knew at the time. Also could the 10.9% interest rate be deemed extortionate?

 

I have instructed a lawyer and am going through the legal aid papers now, but I don’t have much confidence in them. They are telling me that I probably won’t get a time order due to my year of employment difficulty.

 

BHT can’t see me until October 10th, beyond the time needed to file defense papers.

 

Have I got any reasonable recourse under the unfair relationship test of the Consumer Credit Act 2006? There seems to be very little information about the test despite being talked up on the BBC's Money Box by Ingrid Gubbay of Which? (can't post the link as I'm a newby here!!)

 

 

Need help soon please as court papers need to be filed!

[saintly_1]

Thread moved to General Debt Forum

[42man]

What are the particulars of the claim ? (don't be too specific ?)....

 

Has the claim been acknowledged and are you defending all of the claim ?

[peskywabbit]

i really want advice on the consumer credit act aspect, or news of anyone using the unfair relationship test.

[peskywabbit]

42man the particulars were outlined in the first few lines of the post. as it seemed you couldn't be bothered to read that i didn't reply, and i don't know what on earth you are doing on this site.

 

my lawyers were absolutely useless. there was a successful defence under the unfair relationship provision in the same year 2009 peter bentley v blemain finance. i managed to obtain a tomlin order which meant i wouldn't be evicted from my flat (which i owned outright) but i was forced in to selling it nevertheless and clearing the whole debt. i'm just emerging from the trauma of that.

 

so thanks for nothing

 

if anyone else knows if i might have any redress against BHF under the various acts and provisions please let me know.

[42man]

Well I sincerely apologise.....however when I asked for the Particulars Of the Claim, these are whats written in the 'claim' box on the court papers that you received, ......did you/lawyers not mention the missold PPI ? - Did you read this - http://www.consumeractiongroup.co.uk/forum/content.php?827-Examples-of-unfair-treament

[42man]

The reason I asked for the Particulars Of Claim was due to disclosure - I would have pointed you to this thread - http://www.consumeractiongroup.co.uk/forum/showthread.php?159445 which was started 2 weeks before you posted this thread....

[peskywabbit]

hi 42man and thanks for your responses. i did reply to your message last night but it appears to have not been sent or been deleted. as you have asked for an apology and are now trying to be helpful i do apologise for my comments.

 

i asked the lawyer to prepare a defence under the unfair relationship provision of various acts. a lot had been written about the 2006 CCA that had just passed into law and which could be applied retrospectively, but they refused to do that. they did prepare a defence under missold PPI. i ouldn't see that having any prospect of succeeding in preventing my home being repossessed the terms that it was explained to me. in the end a tomlin order was agreed where i undertook to put the flat up for sale and pay the entire loan off out of the proceeds. i think i have since been vindicated on my view that unfair relationship might have been a better defence by the case of peter bentley v blemain finance.

 

An “unfair relationship” could include the terms of an agreement, the ways in which enforcement is being carried out, or anything else. The new rules are retrospective and will make lenders responsible for the transgressions of their brokers, even when these do not fall within the antecedent negotiation rules.

 

The method is the same as for extortionate credit, and there is no doubt that anything that is extortionate will also be an unfair relationship, but hopefully a lot more will be.

 

Any Court can re-open any credit agreement, whether regulated or not, where it considers that the bargain was an unfair relationship. The debtor must raise the matter and it is for the creditor to rebut it (s.171).

 

Successful cases are below:

 

A debtor has secured a five-year block on repossession in a claims management case against his lender, after using consumer credit law to challenge his secured loan agreement. Peter Bentley, of Bridgend, Cardiff, used the meaning of unfair relationships under Section 140A of the Consumer Credit Act (CCA) 1974 to claim that his loan contract with Blemain Finance was an unfair one. Blemain also agreed to charge no further interest on the £40,000 loan and cut his repayments from £550 to £150 a month. At the High Court in Cardiff, Judge Milwyn Jarman also prevented the lender from levying any charges or legal costs "whatsoever." The judge barred Blemain for enforcing repayment via repossession for five years, but even after this period, it can only bring repossession proceedings if there are at least 12 months? arrears on the new level of payments. Bentley's lawyers, Consumer Credit Litigation Solicitors (CCLS), successfully argued that Blemain had loaned the money to Bentley irresponsibly and that the agreement took advantage of his desperate situation. CCLS argued that shortcomings in the decision making procedure on granting the loan, such as in the under writing, affordability checks and valuation processes, led to the credit agreement being unfair. Andrew Settle, solicitor for CCLS, said: "The relationship between the parties was an unfair one within the meaning of Section 140A of the CCA 1974. CCLS is utilising a significant number of legal arguments, like those used on behalf of Mr Bentley, in thousands of cases on behalf of our clients." CCLS successfully demanded to have the loan account re written, which is believed to be the first time a loan account has been rewritten under settlement, as a result of the unfair relationships test. Bentley's case was taken on by claims management company Cartel Client Review. Carl Wright, chief executive of Cartel Client Review, claimed that Blemain made the offer to Bentley in a bid to prevent a judge in a High Court setting a legal precedent against its lending practices. He added: "A legal precedent could have driven a coach and horses through all its loan accounts. The consumer credit rule book is being rewritten as a result of High Court settlements like Blemain Finance v Bentley." Bentley's financial problems started when his mother died in 2007. He began part-time work to look after his father, who was suffering from Alzheimer's, and then took out a £40,000 secured loan in February 2007 to alleviate his financial predicament. His caring responsibilities led to a drop in working hours, and therefore a fall in income, and he then fell behind on his repayments. Blemain later chased Bentley for repayments on the loan, which by the time of this case being heard in court, had increased to £47,000.

there was a lot written about borrowers having greater powers to challenge their lenders and the recent codes of banking seem to support that (even though it is already law), however apart from one other PPI case that was defended under the unfair relationship provision i haven't seen any evidence that lenders are lending more responsibly - vide "pay day loans" and pawnbrokers charging extortionate interest.

 

 

anyway i'll rewind to 2008 and post the particulars of claim as you requested.

 

 

 

Particulars of Claim

For Possession

(Mortgaged Residential Premises)

IN THE Brighton County Court

 

CLAIM NO:

 

 

BETWEEN:

 

 

Black Horse Ltd

 

CLAIMANT

 

 

-AND-

 

 

Mr [EDIT]

 

DEFENDANT

 

 

1. The Claimant has a right to possession of:

Top Floor Flat, [EDIT]

About the mortgage

2. On 2nd June 2008 the Claimant and the Defendant entered into a mortgage of the above

premises, a copy of which is shown in the attached Bundle marked as Exhibit 1.

3. To the best of the Claimant's knowledge the following person is in possession of the property:

Mr [EDIT]

 

 

4.

 

(a) The agreement for the loan secured by the mortgage is a regulated consumer credit agreement, a copy of which is shown in the attached Bundle marked as Exhibit 2. Notice of default was given to the Defendant on 22nd May 2008, copies of which are shown in the attached Bundle marked as Exhibit 3.

 

[EDIT]

 

 

5. The Claimant is asking for possession on the following grounds:

(a) The Defendant has not paid the agreed repayments of the loan and interest, details of which

are set out in the Statement of Account which is shown in the attached Bundle marked as

Exhibit 4.

The Statement of Account is from the inception of the loan and evidences all payments made, any payments returned for lack of funds, contractual interest, unpaid returned remittances from bankers, fees and collection activity charges which have been added to the loan.

(b) The Defendant's loan first went into arrears on 17th January 2005 when the Defendant did not

make the payment of £169.98. For each month thereafter where the Statement of Account

shows a missed, returned or partial payment the arrears increased. The total arrears, the

unpaid returned remittance from bankers fees and the collection activity charges, as at the

date of the Statement of Account, are detailed in the statement in the attached Bundle marked

as Exhibit 4.

6. (a) The amount loaned was £12,654.19

(b) The current terms of repayment are £169.98 per calendar month payable on the 28th day

of each month.

© The total amount required to pay the mortgage in full as at 10th September 2008 would be

£10,540.65

(d) The following additional payments are also required under the terms of the Agreement:

The collection activity charges included in 6© amount to £585.00.

(e) Interest rates which have applied to the mortgage:

 

 

(i) at the start of the mortgage 0.866%

 

 

 

 

 

(ii) immediately before any arrears were accrued 0.866%

 

 

 

 

 

(iii) at the start of the claim 0.866%

 

 

 

7. The following steps have already been taken to recover the money secured by the

mortgage:

Attempts have been made to contact the defendant

Default Notices served

Letters before action, including an arrears statement, sent

[EDIT]

 

 

About the Defendants

8. The following information is known about the Defendant's circumstances:

The Defendant is believed to be resident at the security address The Defendant is believed to be employed

It is not known whether the Defendant is in receipt of social security benefits but no payments are being made directly to the Claimant by social security.

9. There is no one who should be given notice of the proceedings because of a registered interest in the

property under section 31(10) of the Family Law Act 1996 or section 2(8) or 8(3) of the Home

Rights Act 1983 or section 2(7) of the Home Rights Act 1967. A copy of the Certificate of Search at

H M Land Registry is in the attached Bundle marked as Exhibit 5.

What the Court is being asked to do

10. The Claimant seeks:

(a) an Order that the Defendant pays the arrears of £2,409.60, in addition to paying the

contractual monthly instalment of £169.98 on the 28th day of each month.

In default of the aforesaid payment:

(b) an Order that the Defendant delivers possession of the property at:

Top Floor Flat, [EDIT]

© an Order that Judgment is entered against the Defendant for the total amount outstanding

under the Agreement, namely £10,540.65.

(d) further or other relief.

Statement of Truth

The Claimant believes that the facts stated in these particulars of claim are true. I am duly authorised by the Claimant to sign this statement.

Sioned date 9th September 2008

............................................................................................. i....... ......................................................................................................

Full Name: Emma-Jane Davies

Name of Claimant's solicitor's firm: [EDIT]

Position or office held: Litigation Supervisor

Ref: [EDIT]

[EDIT]

 

as i mentioned in my original post i had a good deal of information obtained under the data protection act.

 

there are actually errors on the claim form that i pointed out to my solicitor. for instance the mortgage had not been entered into in june 2008! (it was 2004).

 

i have made complaints to both the financial and legal ombudsman and it would be difficult to distinguish between them in terms of uselessness. the legal ombudsman is possibly the most unhelpful, bordering on obstructive.

 

my real interest however is whether i could now claim redress aaginst BHF using the unfair relationship provision. FSA documents like the RPPD seem tomindicat that i might.

 

any comments?

Edited January 25, 2012 by ims21
Edited to remove personal identifiers and ref Nos

[peskywabbit]

i just lost my whole post

[ims21]

The post was temporarily unapproved to remove all personal identifiers

 

All ok now

[ims21]

Please see my post above....I have edited the original.....your most recent version has all the personal stuff in it so have unapproved it

 

ims

[peskywabbit]

however my real interest is whether i have any legal redress against BHF under the unfair relationship provision. documents such as the new banking codes (that merely restate what appears to be already law) and the RPPD make me think this is so. but firms that offer payday loans seem to be acting against the letter of responsible lending. responsible lending and acting in the borrower's interests are two aspects that don't seem to be have defended at all. i would have thought with all the subprime selling the field was open for another PPI type scandal except now the laws seem to be already in place. correct me if i'm wrong. i am amazed that there hasn't been more use made of this provision.

 

i complained to both the financial and legal ombudsman and it would be difficult to choose which one is the most pusillanimous with the legal ombudsman being unforthcoming to the point of obstruction.

[42man]

So what happened with the PPI ? did the judge take this into account at all ? Are you trying to reclaim thi sback now ?

[peskywabbit]

as a condition of the tomlin order the PPI and all charges were repaid which just about amounted to the arrears i was being sued for.

[peskywabbit]

basically despite having paid off a substantial part of the loan and despite all the other irregularities with bhf and despite my requests to renegotiate the loan and desopite not being able to claim on the PPI when i became unemployed because i had been self-employed, they went ahead and sued me for possession. at the same time at the height of the crisis eric daniels announced they (lloyds/tsb) would be paying bonuses as usual. i really do want some redress.

[frettful38]

Hi PW.....here below is some good information about unfair relationship and interest rate which I received from a top barrister John Pugh.........I hope it is of some help...quite a lot of info and you can use this if you want according to your needs.

 

Interest Rate Rises

 

1. Whereas the initial rate of interest under a loan is a core term and not susceptible of appraisal for fairness under Regulation 5 of the Unfair Terms In Consumer Contracts Regulations a right to vary the interest terms is assessable for fairness. The Unfair Terms in Consumer Contracts Regulations work in the following way.

 

2. Section 3 of the Unfair Terms in Consumer Contracts Regulations 1999 defines a consumer as a natural person who, in contracts covered by these regulations is acting for purposes which are outside his trade, business or profession. The Defendant is a seller or supplier within the meaning of this Regulation so by Regulation 4 of the Regulations, they apply to this transaction.

 

3. By Regulation 5 a contractual term which has not been individually negotiated, shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties rights and obligations arising under the contract, to the detriment of the consumer.

 

4. By Regulation 7 (2), if there is any doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail.

 

5. Schedule 2 to the Regulations contains an indicative and non exhaustive list of terms which may be regarded as unfair. Contained within the ,list is clause 1 (j) which are terms which have the effect or object of enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract. Such terms are regarded as ‘candidates’ for unfairness. The Regulations do not make them necessarily unfair but likely to be unfair unless justified.

 

6. The second part of Schedule 2 to the regulations qualifies this though by providing that

 

“Paragraph 1(j) is without hindrance to terms under which a supplier of financial services reserves the right to alter the rate of interest payable by the consumer or due to the latter, or the amount of other charges for financial services without notice where there is a valid reason, provided that the supplier is required to inform the other contracting party or parties thereof at the earliest opportunity and that the latter are free to dissolve the contract immediately.

Paragraph 1(j) is also without hindrance to terms under which a seller or supplier reserves the right to alter unilaterally the conditions of a contract of indeterminate duration, provided that he is required to inform the consumer with reasonable notice and that the consumer is free to dissolve the contract.”

 

7. Clause 4 of the Terms and Conditions of the XXXX's agreement provides that:

“The Lender may vary the rate of interest per month (after any fixed rate period) from time to time to take account of actual or expected changes in market conditions after giving the borrower not less than 7 days notice in writing.”

 

8. A variation clause gives a firm power to impose a level of change which the consumer has not explicitly agreed to in advance and which does not require the consumer’s agreement at the time any change is made. As such, it directly affects the balance of power between the firm and the consumer with the risk that it weighs too far in favour of the party with the power.

 

The FSA’s Statement of Good Practice in relation to Fairness of terms in consumer contracts published n May 2005 has the following guidance in what constitutes a valid reason for variation (I have highlighted the relevant parts by underlining) :

 

“(i) ‘Valid reason’

 

3.6 Schedule 2 indicates that a variation clause is less likely to be regarded as

‘unfair if it can only be made with a valid reason specified in the contract’.

 

However, fairness should be assessed in light of the Regulations as a whole and, for example, just specifying a valid reason in the contract may not go far enough to satisfying the test of fairness. It may also be necessary, for example, to provide for notice to consumers that the change has been, or will be, made.

 

Particular attention to the requirements of fairness is necessary where other factors, such as the consumer being locked-in to a contract (see paragraphs 4.12-4.15 below), may be to the advantage of the firm rather than the consumer.

 

3.7 Ultimately, only a Court may decide what constitutes a ‘valid reason’. However, a general indication of what we might consider to be a valid reason is one which allows a firm to change contract variables to respond proportionately to changes in general law or to the decisions of the Financial Ombudsman Service, to meet regulatory requirements or to reflect new industry guidance and codes of practice which are there to raise standards of consumer protection.

 

Likewise, a valid reason may be one which allows a firm to respond proportionately to changes in the Bank of England base rate, other specified market rates or indices or tax rates or to reflect other legitimate cost increases or reductions associatedwith providing the particular product or service.

 

Financial Services Authority 11

 

17 With regard to any designated investment business, we would remind firms of COB 4.2.13R which requires a firm that has amended its contract without the consumer’s consent, to give at least 10 business days’ notice to the consumer before conducting any designated investment business with that consumer on any amended terms, unless it is impracticable in the circumstances to do so. There are also notice requirements in MCOB 7.

 

3.8 If a contract contains a clause which provides that the firm may change a contract variable, for example: ‘for any reason we see fit’, ‘for any reason that we consider reasonable at the time of the change’ or ‘to cover unexpected costs’, in our view that firm is not specifying a valid reason in the contract but is, instead, leaving its options open. We would expect a ‘valid reason’ to be, amongst other things, clearly and unambiguously defined.

 

3.9 The greater the number of valid reasons given in the contract then, potentially, the less plain and intelligible the variation clause may be.

 

3.10 We take the view that the Regulations are intended to operate in a free-market economy and do not constrain a firm from managing its business prudently. Therefore we would not intend to enforce the Regulations in a way which impedes the legitimate commercial judgments that firms make having regard to the overall well-being of their business and of all their consumers.

 

However, the Regulations are designed to give effect to a Directive whose purpose is to protect consumers on the assumption that there tends to be an inequality of bargaining power between firms and their consumers. Prudence and fairness are not mutually exclusive factors. Firms will have to make careful judgments when writing their consumer contracts to achieve the right balance.”

 

In my opinion the XXXX's power to vary the mortgage interest rates is likely to be held to be unfair as it is too widely drafted. It is vague where the Regulations require clarity. It is one sided whereas the Regulations are made for the protection of consumers. It leaves the consumer unable to obtain any objective appraisal of whether the reason given is the reason stated in the agreement. No particular lending rate or reference is specified.

 

I would assess the prospects of success on this argument at about 65 to 70%.

 

Blemain v Bentley

 

1. This well known settlement is indeed encouraging but the dynamics of Blemain’s decision can not be known. They may have agreed to extreme terms solely because if there was to be a case which established precedents it was not that one with a highly sympathetic consumer. The press make a meal of such events but at the end of the day it was not a decision by a Court and I can not let it guide me because if I cite it to a judge he will quite rightly say, “So what? – it was an out of court settlement”. I don’t say that to be unsympathetic – just to be realistic.

 

Hope this of some help to you and others.

 

[frettful38]

however my real interest is whether i have any legal redress against BHF under the unfair relationship provision. documents such as the new banking codes (that merely restate what appears to be already law) and the RPPD make me think this is so. but firms that offer payday loans seem to be acting against the letter of responsible lending. responsible lending and acting in the borrower's interests are two aspects that don't seem to be have defended at all. i would have thought with all the subprime selling the field was open for another PPI type scandal except now the laws seem to be already in place. correct me if i'm wrong. i am amazed that there hasn't been more use made of this provision.

 

 

i complained to both the financial and legal ombudsman and it would be difficult to choose which one is the most pusillanimous with the legal ombudsman being unforthcoming to the point of obstruction.

 

PW you have mentioned responsible lending...I have attached a recent case law...bit of a read and I think if you read it all you will gain some very good insight about responsible lending and the outcome that was reached in this particular case....

 

http://www.bailii.org/ew/cases/EWHC/Ch/2011/3307.html

 

http://www.bridgingandcommercialdistributor.co.uk/legal_brief

 

http://www.bridgingandcommercialdistributor.co.uk/legal_brief?id=42&title=Things%20aren%27t%20always%20what%20they%20seem

 

http://www.todaysconveyancer.co.uk/significant-case-helps-conveyancers-on-sub-prime-negligence-claims-cms-873

 

http://www.mortgagestrategy.co.uk/surveying/negligence-claims-could-drop-after-gmac-rfc-vs-countrywide-verdict/1043950.article

[peskywabbit]

i'm sorry fretful38 but i can't see how any of this has relevance to my case or the questions i have posed. i think you guys are all looking in the wrong direction. i'm not interested in PPI claims. i'm interested in suing a bank because they failed to act in my best interest and started hostile possession proceedings that have seriously affected my life.

 

i now have a steady income that i am paying almost in half in rent and struggling to live, while before i owned my own flat. the issues are all contained in literature published prior to and since the 2006 CCA came into law. for instance the bbc had a page which you can find if you search for unfair relationship test:

 

Law gives borrowers new rights

By Paul Lewis

BBC Radio 4's Money Box

A new law will force lenders to change the way they sell loans to people on low incomes.

It allows borrowers to challenge loans that create an "unfair relationship" between them and the lender.

Campaigners say lenders will have to examine their procedures and practices to make sure they comply with the new law.

The act also means all complaints about consumer lending can be taken to the Financial Ombudsman Service.

The campaigns lawyer from Which?, Ingrid Gubbay, told BBC Radio 4's Money Box the new law would bring about major changes.

"This unfair relationships test means that lenders must look at the whole circumstances of borrowers before they agree to lend - which means they have to look at their ability to pay back, their health, their age," she said.

"If the borrower has problems with repaying and that's accompanied by behaviour from the lender to recover the money that contravenes the unfair relationships test, that is going to cause problems for the lender."

Although the new law does not allow high interest rates to be directly challenged, if those rates mean the borrower cannot repay the money, then the interest rate could fall foul of the new test.

And once a borrower complains, Ingrid Gubbay said the lender will have to prove they did not behave unfairly.

"They will have to record a lot more information - all their discussions, whether on the phone, in the office or wherever. They must record everything because in the end the lender will bear the burden of proof as to whether they did engage in unfair relationships or not," she said.

Dispute resolution

The Consumer Credit Act 2006 will also give borrowers new rights to complain to the Financial Ombudsman Service.

Before 6 April, only credit agreements with large regulated companies like banks, building societies and insurance companies were covered by the Financial Ombudsman.

But now all credit deals consumers take out with licensed credit providers will be covered by the ombudsman.

That includes loans given in a shop to buy a sofa or kitchen, hire purchase on a car, even an instalment plan to pay for gym membership or dental treatment.

Walter Merricks, the Chief Financial Ombudsman, told the programme: "In principle it applies to new agreements made on or after 6 April. But there will be people who already have agreements entered into before 6 April, and if something new happens we will be able to look into that.

"For example, if you wanted to repay early under an existing agreement and you had a complaint about the way the early termination worked then you could complain about that."

Complaints should always be made first to the company but if that is not resolved then the ombudsman can be brought in.

"We'll be able to order redress up to £100,000 but what we try to do is identify what are the rights and wrongs and help a resolution and only use those powers as a last resort," Mr Merricks added.

The new law will also apply to credit reference agencies which keep information on credit deals and how we repay them.

 

 

i see no evidence that this law is being upheld anywhere, in fact products like payday loans seem to directly flout it.

 

if anyone has any useful information with respect to my request i would love to hear from you.

[peskywabbit]

My situation was this: I owned my flat outright and took a loan of £10,000 out because my mother was ill as well as PPI. When I became unemployed I couldn't claim on the PPI because I had been self employed, something the Black Horse Finance were aware of when I took out the loan. I fell into arrears, though I did maintain a steady monthly payment - just not the full amount.

 

Misselling the PPI meant that I wasn't covered when I was unemployed and my arrears stemmed directly from that. Over four years I had paid back about £3,500. During possession proceedings, the misselling of the PPI wasn't connected to falling into arrears in any way, though in fact it was instrumental.

 

Is there any legal avenue by which the illegal selling of PPI and the banks decision to repossess my flat as security are linked in British company and consumer law?

[assisted blonde]

Just a quick question if you owned your flat outright and took a secured loan of only 10k against it surely the amount raised would have covered the arrears. I am not sure that the unfair relationship test will really help you the interest rate was not exorbitant although I do agree that you were missold PPI. Also if the mortgage was taken out in 2004 I was under the impression that the limitation in contract law was 6 years from the breach which would be 2010. The Blemain decision cannot really be cited because it was an out of court settlement and therefore dosnt show precedent. Can I ask exactly what you are hoping for from Black Horse is it damages or compensation or ?

[peskywabbit]

hi ab and thanks for your reply. i don't understand your question about the arrears. the arrears was on the debt of £10,000 and the PPI. i had no other mortgage on the flat. in the end the PPI and all collection charges were repaid which did almost amount to the arrears that had accrued.

 

under the unfair relation provision banks have a duty to lend responsibly and i was earning about £140 a week before stoppages and also had an appalling credit record including several accounts with Lloyds and TSB that had been closed due to mismanagement. as far as i understand it banks also have a duty to act in the interests of the customer and repossessing my flat for a £6500 that i was paying off (albeit in reduced amounts) certainly wasn't in mine. in fact i obtained a tomlin order because i didn't have the means to find a new place and store my possessions had i been evicted, which technically means they didn't repossess my flat but i was forced into selling it against my interest.

 

at the same time eric daniels announced the bank would be paying bonuses as usual, so yes, i am very angry about the whole thing.

[assisted blonde]

Got it misread the date on your original post, I can see that you are angry but if you want to try and bring somthing under the unfair relationship test then thought the date was from the date the unfair relationship started (ie when you took out the loan) this would fall outside of the 6 years limitations act n ot when you breached the contract which is a different issue.

[peskywabbit]

the possession proceedings commenced in 2008. i'm looking at some sort of redress under laws of tort or something similar. basically the bank fraudulently sold me a policy that resulted in me falling into arrears and led to the loss of my home. if you have any legal information that could point me in the right direction then i would be very grateful. but one also would assume that the unfair relationship persists during the whole period of the contract and not just at its inception.

[assisted blonde]

under the law of contract an action must be taken within 6 years of the inception you could look at Barons Finance v Olubisi which may help this was a case based on an unfair relationship in that the lender did not take the claiments circumstances into account

[peskywabbit]

thank you for your help. i see even more cases have accrued on the OFT site since i last looked. my lawyers refused to use it as a defence despite all the material i provided them with. as i indicated though, i would be looking to connect the misselling of the PPI with the bank's decision to sue for possession. that seems to me to be flagantly illegal - but tracking down the appropriate law or case will take time.

 

also obtaining a tomlin order might preclude me making further issue.

 

thanks, pw