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42man

Secret/undisclosed commissions...

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re: my posts 23 & 24 above, please can anyone help clarify what is or is not regulated under the cca 1974?

 

thanks

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Well when I have finished fighting Crapstones I intend going for BF.

 

When I took out my loan I phoned them directly and they then put me through to their sales dept.

 

My statements show a 1k commission paid to a broker. I never knowingly used a broker and had no paperwork from a broker!


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Well I am just going round in circles here. I am trying to use the hurstanger case to my benefit and looks like my lender is also using the hurstanger to their benefit.

 

Which one of us is correct? Below are letters from my lender using the hurstanger judgment to their advantage, any input in to this?

 

lenders response

 

[/url]

Edited by frettful38

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Right, what I make out of the first letter attached above is that the lender is trying to justify himself by using pragraph 37 of the hurstanger judgment, however judgment was not granted just on paragraph 37 on its own.

 

There was more information and paragraphs after paragraph 37. Bottom line is that judgment was granted due to the borrowers even though they knew they had to pay a commission, but the fact that they did not know HOW MUCH was the million dollar question.

 

It has been established that borrowers informed consent have/must be made prior to any loan agreement, regulations and guidelines back this and to seal this confirmation precedents have been set.

 

Would anyone agree with me on the above or is the heat getting to my head?:D

Edited by frettful38

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Exactly my way of thinking also F !!!!


PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

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Exactly my way of thinking also F !!!!

 

 

Dougal16T wrote a very good response to send to my lender and I have yet to receive a response. Will be interesting to see what if any response they now give will justify their first response.

 

I will post up when I do if I do get it.

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I agree too Frettful. I've passed my letter from Swift to the FOS and the OFT. Swift Advances plc say because the Additional Information Authorities and Declarations form stated commission "may" be applied that is enough. I have argued that not knowing exactly how much is not being transparent and not giving consumers time to read the form or a copy to keep is being unfair. The broker (agent of Swift) just got the forms signed "where crossed" and speedily took them away with her. There was never any confirmation of commission or notice of the amount. All the best SJ

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I was having a read of the link below and have had a thought and a very good one of that too,

 

Consumer Protection From Unfair Trading Regulations 2008 | Consumer Information

 

Is there a possibility that we could use the "Misleading Commercial Practices: Unfair Trading Regulations 2008 in support of secret commissions?

 

The practice of incorrect or misleading descriptions, statements, marketing and pricing was made unlawful under the both the Consumer Protection Act and the Trade Descriptions Act. This legislation has now been replaced in large part by the Consumer Protection from Unfair Trading Regulations 2008. The regulations outlaw three specific practices:

 

  • Misleading actions.
  • Misleading omissions
  • Aggressive sales tactics.

 

1. Misleading Action

 

If false or inaccurate information has been used in relation to a product or a service, and this information has induced you into a purchase you would not have otherwise made, you can claim that the action was misleading. It also covers assertions made about the company selling to you. If, for example, the company makes untrue claims to have certain qualifications, or that they are members of an approved trade organisation, this is a misleading action. This is also the case if they claim to adhere to a code of practice which they then do not follow.

2. Misleading Omissions

 

The problem may be not what is stated but what is not. Therefore if information is omitted or hidden, presented in an unclear, unintelligible or ambiguous way, or given too late to the consumer, then it can be found to be misleading and in breach of the regulations.

Companies are required by law to include certain information about themselves , about performance of their contractual obligations, or in relation to consumer rights where there is a cooling off period. If they do not, then this is also misleading.

 

 

This could be very interesting, 42man love to see what your opinion is on this please.

 

 

 

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Good evening,

 

This is to Blemain:

 

In Wilson & Another v Hurstanger Ltd[2007] EWCA Civ 299 it was held that :The broker had not made a secret commission because the borrowers knew about the commission. But, in failing to disclose the amount, the broker had, nevertheless, acted in breach of his fiduciary duty because he had not obtained his clients' informed consent to the potential conflict of interest.

 

Significantly, the lender, (who in this case is Blemain) who had paid the commission knowing that the broker was acting as the agent of the borrowers, was found liable as an accessory to that breach. This meant that the borrowers were entitled to claim equitable compensation directly against Hurstanger.

 

 

I note that this is not the first occassion that Blemain have failed to act in accordance with the appropriate legislation, and I fully intend to take this matter as far as is neccessary in order to obtain compensation.

 

 

You have 14 days to comply with my request for details as to the actual amount of commissioin paid in my case.

 

 

Regards

 

I say that you must send this by first class recorded post - otherwise Blemain will not act and will claim ignorance.....

 

 

All the best to all

 

Dougal

 

 

Hi Dougal16T,

 

I sent the above info to Blemain and this is the response that I received to it,

 

 

We write with reference to Mrs XXXXXX letter dated May 10, making allegations of the payment of secret commission.

 

In relation to Wilson v Hurstanger, we have set out our position in our letter to [previous solicitors] of March 10. By way of clarification, however, we will address the specific concerns raised in your letter.

 

The failure to disclose the amount of commission payment in Hurstanger was material because of the borrower's vulnerability and lack of sophistication. We consider in this respect, your case differs. Accordingly, the standard of disclosure required was lower.

 

Regards

 

 

So Blemain state that me & OH were not vulnerable, even though I was/still on anti-depressants and many other health problems since ectopic pregnancy, and my OH's first language is not English, and he cannot write or read apart from a little.

 

Any opinions?

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SKELETON ARGUMENT

 

-------------------------------------------------------------------------

 

 

1. The pertinent facts of the case are given in the Claimant’s Witness Statement relating to the insurance policies included in the loan agreement (“the Agreement”) between the Defendant and the Claimant.

 

2. The Claimant believes that the Defendant took advantage of her inexperience to pressurise her into buying insurance policies as part of the Agreement with a view to making a profit through commissions.

 

3. Any commissions are hidden/undisclosed commissions as they are not declared in monetary terms on the Agreement.

 

4. Hidden commissions are contrary to Common Law - Wilson & Another –v- Hurstanger Ltd, [2007] EWCA Civ 299 and Imageview Management Ltd –v- Kelvin Jack, [2009] ECA Civ 63 – and render the Agreement void.

 

5. without prejudicelink3.gif to 5, hidden commissions also mean that the terms prescribed under Schedule 1 of the Consumer Credit (Agreements) Regulations – amount of credit, cost of credit and APR – are all mis-stated. This renders the Agreement unenforceable under s61 of the Consumer Credit Act 1974.

 

6. The Claimant has requested information from the Defendant relating to commissions charged or given on the insurance policies which form part of the Agreement. The Defendant has failed to provide such information. Specifically, the Claimant has requested a copy of the underwriting sheet relating to the insurances listed in the Agreement.

 

7. It is likely that Proceedings will be issued between the Defendant and the Claimant relating to the Agreement and the issue of hidden commissions is expected to be a major part of the Claimant’s case against the Defendant. The information requested under this application will have to be disclosed under standard disclosure if proceedings are issued.

 

8. I therefore respectfully request the court to grant an order pursuant to CPR Part 31.16 requiring XXXXX to provide a copy of the underwriting sheet or other such document that details the commission charged or received in relation to the Agreement.

 

Costs

 

9. Costs of this application should be awarded in accordance with Part 48.1 CPR 1998.

Under Part 48.1 (2) the general rule is that the person making the application (in this case the Claimant) pays the costs of the application and of complying with it.

Part 48.1 (3) states that

 

“The court may however make a different order, having regard to all the circumstances, including-

(a) The extent to which it was reasonable for the person against whom the order was sought to oppose the application; and

(b) Whether the parties to the application have complied with any relevant pre-action protocol”

10. The Claimant therefore asks that the court gives consideration to Part 48.1 (3) in relation to costs for the following reasons:

a) The Claimant sent a request of information, including the document that is the subject of this pre-action request disclosure application (date) under s7 of the Data Protection Act 1998.

b) The Defendant replied with a lot of information about the account but not the information requested concerning commissions. The Claimant sent a letter to the defendant on (date) pointing this out. A further letter on (date) again pointed out that this information had not been provided.

c) Prior to the application, the Claimant had already made several requests for the documents that are the subject of this application. This shows the blatant disregard by the Defendant to a reasonable request by one of its customers.

d) All of the requests made under paragraph a) and b) above have been unsuccessful and have directly led to this application being necessary. Had the Defendants complied with the requests then this application would not be proceeding.

e) There is no specific pre-action protocol that applies to this claim but the Claimant acting as litigant in person has tried to act reasonably and give the Defendant adequate time to comply with a reasonable request. The Defendant has not objected to this approach but has still failed to comply.

f) If the Claimant has to pay the costs of this application then it will send a message to the Defendants that they can ignore reasonable requests for documents from Claimants and more importantly breach their statutory obligations and be awarded their costs for doing so. The court must surely discourage this behaviour and by awarding the Claimant her costs of making this application it will send out a strong message to the Defendant that non-compliance with reasonable requests will not be tolerated.

g) If the Claimant is awarded costs then on the next occasion that the Defendant receives a similar request the Defendant is more likely to comply in a timely and cost effective manor.

h) The Defendant has provided no good explanation for the failure to disclose document at this stage which will have to be disclosed under standard disclosure if proceedings are issued.

 

11. The documents requested go directly to liability and quantum of the claimant case. In accordance with the guidance given by Lord Justice Rix in Black and others v Sumitomo and others [2001] EWCA Civ 1819 (and in particular para. 72 of his judgment) care has been taken to ensure that the disclosure request is narrow and that the documents requested are determinative of the dispute between the parties. At paragraph 88 of his judgement Rix LJ states that when determining whether to grant an application for pre-action discovery the court will consider “the nature of the injury or loss complained of; the clarity and identification of the issues raised by the complaint; the nature of the documents requested; the relevance of any protocol or pre-action inquiries; and the opportunity which the complainant has to make his case without pre-action disclosure”.

 

12. In this particular case, the Claimant is seeking a copy of the underwriting sheet pertaining to the (loans/insurances) sold to her at the time the Defendant arranged a loan for her. The underwriting sheet gives information that shows whether the Defendant benefited from hidden commissions relating to this insurance. If the Defendant did so benefit, the Claimant has a strong claim against the Defendant. Without sight of the document, the Claimant is left facing undisclosed commissions which is unfair.

 

I believe that the contents of this Skeleton Argument are true.

 

 

Signed:


PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

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CLAIMANT’S SKELETON ARGUMENT IN SUPPORT OF APPLICATION FOR PRE-ACTION DISCLOSURE

 

------------------------------------------------------------------------------------------

 

Introduction

1. The pleadings in this case are reasonably straightforward. The Claimant contends that the Defendant has acted unlawfully and unfairly in relation to undisclosed commissions

This application noticelink3.gif

2. The Claimant’s Application Notice is dated XXXX. Application is made to the court under CPR Part 31.16 for disclosure of documents relating to likely future proceedings between the Claimant and the Defendant.

3. Disclosure of the specified document(s) before proceedings have commenced will have the effect of promoting resolution of the dispute without proceedings or, if proceedings are issued, of disposing of the proceedings fairly.

4. Disclosure of the specified document(s) before proceedings have been issued will also have the effect of informing the Claimant’s case, clarifying the issues in dispute and promoting the overriding objective.

Evidence

5. The Claimant relies upon the witness statement of XXXX dated

XXXXX, which is admissible as evidence pursuant to CPR 32.6(1).

6. The Defendant has failed to serve any witness statements or other evidence in opposition to the application.

Reasons for disclosure

7. The Claimant believes that the Defendant took advantage of her inexperience to pressurise her into buying insurance policies as part of the Agreement with a view to making a profit through commissions.

8. Any commissions are hidden commissions as they are not declared on the Agreement and were not (and have not been) otherwise disclosed to the Claimant.

9. The normal relationship between the Claimant and the Defendant is that of creditor and debtor. However, in the matter of the loan and insurance policies, the Defendant acted as agent or broker. As such, the Defendant was in a position of trust. Hidden commissions constitute a breach of that trust and are unlawful at Common Law.

10. Information relating to commissions are normally contained in a document known as the underwriting sheet.

11. The Claimant has reasonable grounds to suspect that the Defendant has applied hidden commissions to the Agreement. Sight of the underwriting sheet corresponding to the Agreement would show immediately and unequivocally whether hidden commissions had been applied to the Agreement or not.

12. The Defendant’s continued refusal to disclose this document merely serves to confirm the Claimant’s belief that hidden commissions were applied to the Agreement. If the Defendant has acted fairly and lawfully in this matter, it would have nothing to lose by disclosing the information requested.

13. If hidden commissions were applied to the Agreement, this would form a major part of the Claimant’s case in any future proceedings. Disclosure of the underwriting sheet is vital to the disposition of such future proceedings, even to the extent of determining if they would be issued or not.

14. It is therefore completely consistent with the overriding objective to order disclosure now rather than waiting for standard disclosure or an application under CPR Parts 18 or 31 once proceedings have commenced.

Costs

15. Costs of this application should be awarded in accordance with CPR Part 48.1. Under Part 48.1 (2) the general rule is that the person making the application (in this case the Claimant) pays the costs of the application and of complying with it. However, Part 48.1 (3) states that

“The court may however make a different order, having regard to all the circumstances, including-

(a) The extent to which it was reasonable for the person against whom the order was sought to oppose the application…l”

16. The Claimant therefore asks that the court gives consideration to Part 48.1 (3) in relation to costs for the following reasons:

a) The Claimant made a number of requests to the Defendant for the information that is the subject of this pre-action disclosure application, but the Defendant has ignored all such requests. This has led directly to this application being necessary. Had the Defendant complied with the requests then this application would not be proceeding.

b) If the Defendant has acted fairly and lawfully in this matter, it has nothing to lose by disclosing the information requested.

 

c) The Defendant has provided no good explanation for the failure to disclose the requested document despite being given ample opportunity to do so.

d) There is no specific pre-action protocol that applies to this claim but the Claimant acting as litigant in person has tried to act reasonably and give the Defendant adequate time to comply with a reasonable request. The Defendant has not objected to this approach but has still failed to comply.

e) If the Claimant has to pay the costs of this application then it will send a message to the Defendants that they can ignore reasonable requests for documents from Claimants and more importantly breach their obligations and be awarded their costs for doing so. The court must surely discourage this behaviour and by awarding the Claimant her costs of making this application it will send out a strong message to the Defendant that non-compliance with reasonable requests will not be tolerated.

f) If the Claimant is awarded costs then on the next occasion that the Defendant receives a similar request the Defendant is more likely to comply in a timely and cost effective manor.

Conclusion

17. The documents requested go directly to liability and quantum of the Claimant’s case. In accordance with the guidance given by Lord Justice Rix in Black and others v Sumitomo and others [2001] EWCA Civ 1819 (and in particular para. 72 of his judgment) care has been taken to ensure that the disclosure request is narrow and that the documents requested are determinative of the dispute between the parties. At paragraph 88 of his judgement Rix LJ states that when determining whether to grant an application for pre-action discovery the court will consider “the nature of the injury or loss complained of; the clarity and identification of the issues raised by the complaint; the nature of the documents requested; the relevance of any protocol or pre-action inquiries; and the opportunity which the complainant has to make his case without pre-action disclosure”.

 

18. In this particular case, the Claimant is seeking a copy of the underwriting sheet pertaining to the undisclosed commissions to XXX under the Agreement. The underwriting sheet gives information that shows whether the Defendant benefited from hidden commissions relating to this insurance. If the Defendant did so benefit, the Claimant has a strong claim against the Defendant. Without sight of the document, the Claimant is left facing undisclosed commissions which is unfair and unlawful.

19. The Claimant therefore respectfully requests the court to grant this application.

 

Signed:

 

Dated this day of 2010.

  • Haha 1

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

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CLAIMANT’S SKELETON ARGUMENT IN SUPPORT OF APPLICATION FOR PRE-ACTION DISCLOSURE

 

 

 

------------------------------------------------------------------------------------------

 

 

 

Introduction

1. The pleadings in this case are reasonably straightforward. The Claimant contends that the Defendant has acted unlawfully and unfairly in relation to undisclosed commissions

This application noticelink3.gif

2. The Claimant’s Application Notice is dated XXXX. Application is made to the court under CPR Part 31.16 for disclosure of documents relating to likely future proceedings between the Claimant and the Defendant.

3. Disclosure of the specified document(s) before proceedings have commenced will have the effect of promoting resolution of the dispute without proceedings or, if proceedings are issued, of disposing of the proceedings fairly.

4. Disclosure of the specified document(s) before proceedings have been issued will also have the effect of informing the Claimant’s case, clarifying the issues in dispute and promoting the overriding objective.

Evidence

5. The Claimant relies upon the witness statement of XXXX dated

XXXXX, which is admissible as evidence pursuant to CPR 32.6(1).

 

6. The Defendant has failed to serve any witness statements or other evidence in opposition to the application.

Reasons for disclosure

7. The Claimant believes that the Defendant took advantage of her inexperience to pressurise her into buying insurance policies as part of the Agreement with a view to making a profit through commissions.

8. Any commissions are hidden commissions as they are not declared on the Agreement and were not (and have not been) otherwise disclosed to the Claimant.

9. The normal relationship between the Claimant and the Defendant is that of creditor and debtor. However, in the matter of the loan and insurance policies, the Defendant acted as agent or broker. As such, the Defendant was in a position of trust. Hidden commissions constitute a breach of that trust and are unlawful at Common Law.

10. Information relating to commissions are normally contained in a document known as the underwriting sheet.

11. The Claimant has reasonable grounds to suspect that the Defendant has applied hidden commissions to the Agreement. Sight of the underwriting sheet corresponding to the Agreement would show immediately and unequivocally whether hidden commissions had been applied to the Agreement or not.

12. The Defendant’s continued refusal to disclose this document merely serves to confirm the Claimant’s belief that hidden commissions were applied to the Agreement. If the Defendant has acted fairly and lawfully in this matter, it would have nothing to lose by disclosing the information requested.

13. If hidden commissions were applied to the Agreement, this would form a major part of the Claimant’s case in any future proceedings. Disclosure of the underwriting sheet is vital to the disposition of such future proceedings, even to the extent of determining if they would be issued or not.

14. It is therefore completely consistent with the overriding objective to order disclosure now rather than waiting for standard disclosure or an application under CPR Parts 18 or 31 once proceedings have commenced.

Costs

15. Costs of this application should be awarded in accordance with CPR Part 48.1. Under Part 48.1 (2) the general rule is that the person making the application (in this case the Claimant) pays the costs of the application and of complying with it. However, Part 48.1 (3) states that

“The court may however make a different order, having regard to all the circumstances, including-

(a) The extent to which it was reasonable for the person against whom the order was sought to oppose the application…l”

16. The Claimant therefore asks that the court gives consideration to Part 48.1 (3) in relation to costs for the following reasons:

a) The Claimant made a number of requests to the Defendant for the information that is the subject of this pre-action disclosure application, but the Defendant has ignored all such requests. This has led directly to this application being necessary. Had the Defendant complied with the requests then this application would not be proceeding.

b) If the Defendant has acted fairly and lawfully in this matter, it has nothing to lose by disclosing the information requested.

 

c) The Defendant has provided no good explanation for the failure to disclose the requested document despite being given ample opportunity to do so.

d) There is no specific pre-action protocol that applies to this claim but the Claimant acting as litigant in person has tried to act reasonably and give the Defendant adequate time to comply with a reasonable request. The Defendant has not objected to this approach but has still failed to comply.

e) If the Claimant has to pay the costs of this application then it will send a message to the Defendants that they can ignore reasonable requests for documents from Claimants and more importantly breach their obligations and be awarded their costs for doing so. The court must surely discourage this behaviour and by awarding the Claimant her costs of making this application it will send out a strong message to the Defendant that non-compliance with reasonable requests will not be tolerated.

f) If the Claimant is awarded costs then on the next occasion that the Defendant receives a similar request the Defendant is more likely to comply in a timely and cost effective manor.

Conclusion

17. The documents requested go directly to liability and quantum of the Claimant’s case. In accordance with the guidance given by Lord Justice Rix in Black and others v Sumitomo and others [2001] EWCA Civ 1819 (and in particular para. 72 of his judgment) care has been taken to ensure that the disclosure request is narrow and that the documents requested are determinative of the dispute between the parties. At paragraph 88 of his judgement Rix LJ states that when determining whether to grant an application for pre-action discovery the court will consider “the nature of the injury or loss complained of; the clarity and identification of the issues raised by the complaint; the nature of the documents requested; the relevance of any protocol or pre-action inquiries; and the opportunity which the complainant has to make his case without pre-action disclosure”.

 

18. In this particular case, the Claimant is seeking a copy of the underwriting sheet pertaining to the undisclosed commissions to XXX under the Agreement. The underwriting sheet gives information that shows whether the Defendant benefited from hidden commissions relating to this insurance. If the Defendant did so benefit, the Claimant has a strong claim against the Defendant. Without sight of the document, the Claimant is left facing undisclosed commissions which is unfair and unlawful.

19. The Claimant therefore respectfully requests the court to grant this application.

 

Signed:

 

Dated this day of 2010.

 

Excellent info and a great read , thanks for taking the time much appreciated ,

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Morning all..

 

What a great piece of work - well done, and very well written, researched and prepared.

 

Best wishes to all

 

Dougal

Edited by Dougal16T
poor spellimg ..... again - apologies to all!

Update: 2013 Following our recent (9/7/13) hearing about Bank Charges at the Court of Appeal, and refusal to grant permission to Appeal; an Application has just (23/10/2013) been made for a fresh hearing and the Court Location is yet to be confirmed!

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Very interesting indeed 42man. Need to collate all this info when deciding where to go next.

Thanks

SJ

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I think it explains it fully....they have had EVERY opportunity to show the undisclosed commissions before going to court to avoid any type of costs....bear in mind the underwriting sheet, and requesting it under CPR31.16 is for an intention of legal action, for you to assess, whether or not you have a case in court for them to refund this as they had a fidiciary duty, at the follow on case where the undisclosed commission is paid back then THAT is for a judge to decide.....


PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

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we feel we have the battle more or less won after our recent hearing ,..the lenders continue to hide the underwriters sheets behind lies and excuse after excuse ,..

 

well they days are numbered as I have asked the court for disclosure,with a disclosure hearing in the following weeks

 

the concerns in the defence i submitted , all need addressing from lenders

 

before disclosure is given

 

The only way they will not have to disclose the underwriters sheeet (is if they agree that my concerns are correct ) then no need for disclosure , case won as secret commissions

 

if they decide i am wrong and my concerns are challenged then i also get disclosure which will prove my concerns ,..

 

now to me that should be game set and match

 

i am thinking of requesting data from PPI company, as i believe my lenders also recieved a commission from insurance company , and as they say they do not have to disclose if they did , as they have a lender / brorrower relationship between ourselves and have no fiduiary duty to me ,.. hence not disclosing

 

and to me this is not correct as they do hold a duty to me and it will have been breached / as commission was not disclosed ,

 

would i get any further forward contacting the insurance company (pinicle) to see if i can get the cost of the policy i had to show the difference i was charged from the lenders , which would obviously be the amount of commission they pocketed ,.. any advice regarding this will be greatly appreciated , as a new line of attack which i believe runs nicely with the brokers commission ,.. asseccory to a breach of fidiuary duty ,... and then breach of fidiuary duty ,..

 

no wriggling out of it ,.. proper underhand practises

 

Would a threat of including the insurers in legal proceedings as accessory to the breach , get them to reveal the true going on's regarding the costs of this policy , and as just over £2000 would this be regulated?and need to show T's&C's ??????

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I have been writing to my lender for god knows how long about the commission they paid to my broker. I have the

Edited by frettful38

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Hi Michelle

I think the whole issue of commission between the lenders (Swift in our case) and Insurance Company (Sterling) is very interesting. It seems as if perhaps we're hit by two loads of secret commissions. One paid by lender to broker and the other by Insurance Company to Lender. I even wonder whether it could be the other way round i.e. Lender paying commission to Insurance Company - they both make money on the sale of insurance. The lender winning out because of all the interest on single payment ppi policy which only gets a tiny percentage refund if cancelled. The insurance company have profited by the full amount of the premium and the lender by the very lucrative interest. The insurance part of the loan with interest is paid off over the entire term (even if only the first 3 years are insured). If you cancel the policy - you are in effect still paying the premium and interest over the term of the loan. All seems very wrong to me. I think everyone should submit a SAR to their insurance companies as well as lenders - brokers too if still in business (unfortunately ours has gone bust like so many other Swift brokers. SJ

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I think i will S.A.R my insurance company after giving it some thought ,.. as to me this is worst then the broker commission ,..

 

because in reality ,.. you are charged x amount ,.. and a lower figure is forward to the ppi providers ,.. this is fraud end of story

 

but no thats not the end ,.. we would like to charge interest on the false quote we quoted you for the ppi

 

so a £2200 policy , the insurers get say £1000 to cover the insurance,..

 

lenders pocket £1200,..

 

this is the commission the lender recieves , but to get a little extra we will place the price of policy and might aswell add our commissions too , on top of the balance

 

interest over 25 years equals £13500 total for PPI , which cost £1000

 

and thats only assuming the lender paid 50% of true cost for policy ,..

 

others believe the lenders keep about 80% of the cost of the policy and 20% charged for this cover is sent to insurers ,..

 

this is fraud , no other way around it ,..

 

I have searched for others on the forum attacking these points , if so can someone point me in the right direction

 

as i intend to over turn these rocks

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So in reality the lenders can get hit with both barrel's , because if the loan includes PPI ,and the policies cost the lender less then charged , this would be classed as the commission recieved,

 

so lender has a fiduciary duty to borrower , so aswell as accessory to breach of fiduciary , they would also be breaching fiduciary duty as your agent/broker regarding ppi

 

can anyone point me to any threads covering the secret commissions from ppi providers ?????

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Here's some bulletts for people to use on secret commission........Secret Commission proved will void any contract and you can get any monies paid plus costs plus compensation

 

sparkie

 

§ to refuse or agree to this commission paymentNot only is it immaterial whether the parties thought that they were doing anything wrong, but money secretly paid to the agent of the other party is recoverable unless the other party is informed of the payment made (Shipway v Broadwood [1899] 1QB 369). According to Lord Chitty:

"The real evil is not the payment of money, but the secrecy attending it."

§ According to Mr Justice Slade in Industries & General Mortgage Co Ltd v Lewis [1949] 2 All ER 573, for the purposes of the civil law a bribe means the payment of a secret commission, which only means

§ that the person making the payment makes it to the agent of the other person with whom he is dealing;

§ that he makes it to that person knowing that that person is acting as the agent of the other person with whom he is dealing; and

§ that he fails to disclose to the other person with whom he is dealing that he has made that payment to the person whom he knows to be the other person's agent.

 

§ In Anangel v IHI [1990] 1 Lloyd's Law Reports 167, Mr Justice Leggatt stated that the key to the determination of the question of whether or not a payment or other inducement made to an agent constitutes a bribe is whether or not the making of it gives rise to a conflict of interest, that is to say, puts the agent into a position where his duty and his interest conflict.

 

§ In Allwood v Clifford (2002) EMLR 3, Mr JusticePark went further, stating: "I do not accept that the Anangel case establishes that, as long as in practice no conflict arises between the agent's duty to his principal... and his interests under his relationship with the third party..., the agent is entitled to retain the payment from the third party."

 

I would also claim that by not declaring that commission was paid was a deliberate misrepresentation by omission, and made for gain at a debtors loss.

The gain would be that this commission would have been used in the calculation of the APR to ensure that t was the debtor who paid the initial commission payment and the extra interest would be to the creditors gain.

By keeping the payment of commission secret the debtor is not given the opportunity .

 

 

In Attorney General for Hong Kong v Reid [1994] 1 AC 324, the Privy Council, heard an appeal from the New Zealand Court of Appeal in respect of bribes found to be have paid to the former Hong Kong Director of Public Prosecutions. Lord Templeman stated:

"Bribery is an evil practice which threatens the foundations of any civilised society."

Whilst bribery is often associated with there being a corrupt motive on the part of the person paying the bribe, in civil proceedings, there is no need to prove such a corrupt motive.

 

§ According to Lord Justice Romer, in Hovenden and Sons v Millhoff (1900) (83 LT 43), if a bribe be once established to the court's satisfaction, then the court will not inquire into the donor's motive in giving the bribe, nor allow evidence to be gone into as to the motive

 

§ Mr Justice Slade in Industries & General Mortgage Co Ltd v Lewis held that proof of corruptness or corrupt motive is unnecessary in a civil action. He further held that the motive of the donor in making the payment to the agent or donee is conclusively presumed against the person who makes the payment.

 

§ In Allwood v Clifford, Mr Justice Park said that it can happen under the law of agency that a payment received by an agent from a third party may be one which the agent is not allowed to keep for himself, notwithstanding that the agent had no consciously improper motive in accepting it, and notwithstanding that the agent may have believed - possibly correctly - that there would be no damage to the interests of his client from what he has agreed to do for the third party.

 

§ In Daraydan Holdings Ltd v Solland International Ltd [2004] EWHC 622 (Ch), Mr Justice Collins stated that in proceedings against the payer of the bribe there is no need for the principal to prove that the payer of the bribe acted with a corrupt motive.

 

 

Was the person bribed, influenced by the bribe?

 

In civil proceedings, there is also no need to prove that the person bribed was influenced by the bribe.

 

§ Lord Justice Romer, in Hovenden and Sons v Millhoff, held that the court will presume in favour of the principal, and as against the briber and the agent bribed, that the agent was influenced by the bribe; and this presumption is irrebuttable.

 

§ Mr Justice Slade in Industries & General Mortgage Co Ltd v Lewis, said that once the bribe is established, there is an irrebuttable presumption that it was given with an intention to induce the agent to act favourably to the payer and. thereafter, unfavourably to the principal and that it is conclusively proved against the person making the payment that the donee is affected and influenced by the payment.

 

§ In Daraydan Holdings Ltd v Solland International Ltd, Mr Justice Collins stated that in proceedings against the payer of the bribe there is no need for the principal to prove that the agent�s mind was actually affected by the bribe.

 

The consequences of the bribe

 

Whether or not a payment should be classified a bribe does not depend upon the consequences of the payment.

 

§ The Court has never permitted a finding that the agent acted in the best interests of his principal, notwithstanding the receipt of secret commission, to avail either the agent or the third party when sued in respect of it by the principal (Anangel v IHI).

 

§ In Petrotrade v Smith, Mr Justice Steel stated:

 

§ Neither common sense nor authority supports the proposition that the payment must induce a contract between the principal of the recipient of the payment and the donor. The secret payment is just as corrupt in the absence of an agreement (though often enough the payment will be intended to achieve such a purpose). In its ordinary meaning, the word bribe includes any reward given with a view to perverting the judgment or conduct of the recipient.

 

§ There is no requirement for a contract between the parties to be thereby induced. Indeed to focus on the possible outcome of the payment is to misapprehend the key distinguishing feature of a corrupt payment, namely that the making of it gives rise to a conflict of interest on the part of the agent.

 

§ In Daraydan Holdings Ltd v Solland International Ltd, Mr Justice Collins stated that in proceedings against the payer of the bribe there is no need for the principal to prove that the principal suffered any loss or that the transaction was in some way unfair or that the bribe was given specifically in connection with a particular contract, since a bribe may also be given to an agent to influence his mind in favour of the payer generally (eg in connection with the granting of future contracts

Edited by Sparkie1723

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excellent info ,.. I think that covers all angles nicely,.. Sparkie do you have any knowledge on S.A.R the ppi providers to get them to reveal true costs of policy the lenders arranged and the costs to lenders ,.. and if so what would you suggest moving forward in attacking the ppi (insurer's) ,.. as i want to prove commission regarding insurance and the breach of the fiduicary duty as well as accessory to brokers breach ,..

 

thanks for you valued imput

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excellent info ,.. I think that covers all angles nicely,.. Sparkie do you have any knowledge on S.A.R the ppi providers to get them to reveal true costs of policy the lenders arranged and the costs to lenders ,.. and if so what would you suggest moving forward in attacking the ppi (insurer's) ,.. as i want to prove commission regarding insurance and the breach of the fiduicary duty as well as accessory to brokers breach ,..

 

thanks for you valued imput

 

Hi michellej1

 

I'll post you a good SAR template to send to the INsurance co in a minute or so ...modify it to suit your requirements

 

sparkie

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You will most likely have to omit some to suit your own purpose

 

sparkie

 

Your name address

 

 

To

The Data Controller or Data Compliance Officer

Insurance co

 

 

 

Date

 

 

Dear Sir or Madam

Ref Insurance policy no if you have it

DATA PROTECTION ACT 1998 SUBJECT ACCESS REQUEST

This Subject Data Access Request is made under sections 7, 8 & 9 of the Data Protection Act 1998, and by virtue of the Data Protection (Subject Access) ( Fees and Miscellaneous Provisions) Regulations 2000 ( S.I.No 191).

 

 

 

Please supply me with all data that you hold on m. This includes in particular, but is not limited to, the following:-

 

1.The original signed, Insurance policy agreement and any terms and conditions that applied at the time

 

2. Transcripts of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, to and from us or by any other party.

 

3.Where there has been any event in the account history over this period which has required manual intervention by any person, I require disclosure of any indication notes which have either caused or resulted in that manual intervention.

 

4.Documents relating to any insurances added to the account, including any title indemnity insurance contract terms and conditions, the date it was added and deleted (if applicable).

 

5.Details of any collection charges added to the account; specifically, the date it was levied, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

 

6.Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said charges were levied.

 

7.A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998 and any consent that I/we may have given to those uses and the Data Controllers Licence Number issued by the Infornmation Commissioner to Insurance Co

 

8.The number of the CCA licence issued to Insurance companies name

 

 

9.A list of third parties to whom you have disclosed my/our personal data including Credit Reference Agencies and, a summary of the nature of the information you have disclosed, the reason for this disclosure.

 

 

10.Copies of any statements of account for the agreement from its inception, not a record of payments

 

11.Where any previous information or records held have been deleted or disposed of, the methods used to do so, including dates, certificates or references confirming details of destruction. Where you are unable to provide such certificates, lease provide a declaration signed by an authorised officer of your company, confirming the dates and methods of destruction of this data, and the reason for the destruction.

 

12. Full hard copy print outs of my/our personal and financial information, held in a digital, magnetic or any other format which is held in any archives, backups or other storage systems/devices/locations.

 

12.Full copies of transcripts of any correspondence in postal, e-mail or any other format which you have entered into with any individual, organisation or third party which contains my personal or financial, or which pertains to me.

 

13.Details of any third parties which have an interest in our account/policy.

 

14Any other information that you hold with regards to me/us and/or our account.

 

15.A complete list of all transactions or statements relating to all account and applications made by me/us to and with your organisation.

 

16.A copy of the underwriting sheet confirming the amount of commission that has been paid on any and all agreements entered into by me with name the lender agent/broker

 

 

Enclosed is the statutory maximum fee for this request of £10.

You have 40 days in which to comply. If there is specific information which you require in order to satisfy yourself as to my identity please let me know by return.

 

However please note that the above address is the one which has been used to make any and all communications with me with regards to my account information from you which has been hitherto found acceptable.

 

IF YOU ARE UNABLE TO DEAL WITH THIS REQUEST, YOU SHOULD IMMEDIATELY FORWARD IT TO THE PERSON WITHIN YOUR ORGANISTAION REPONSIBLE FOR DATA PROTECTION COMPLIANCE.

 

Yours sincerely

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Thanks Sparkie ,.. will give it another read but sounds good to me ,

 

its just another point to pile pressure on my lenders , i have them on the rope's regarding secret commission's to broker ,

 

i have a disclosure hearing in august and looking to request all documents which will be damaging to the lenders ,

 

will the lenders also have a copy of the in's and out's of the policy I had? ,..

 

I have requested details from lenders regarding commissions from insurance providers , but not willing to disclose as no fidcuiary duty ,.. and have this in writing ,..

 

I now know this is not true and definately a duty to me as 3rd party provide the insurance ,..

 

again thanks for your thoughts as many do not seem to be looking at this angle , or unless i am that slow and can not find the threads

 

best wishes & thoughts

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