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welshperson3 v blemain finance - 140A Unfair relationship -started court proceedings


welshperson3
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Firstly a bit of background.

I have a secured loan with blemain finance (we all make mistakes:-x)

It was taken out in may 2007 and is for £10K also it is cca regulated.

They have added over £4K in charges in just 2 years, I have requested the charges back and after lots of letters i have they're final bog of letter. so i am now debating whether to take then to court for unfair credit agreement or go to the fos, i have phoned the fos and they have taken details and sent me out the forms to carry on with my complaint,but as yet i have not sent them back.so i have all options open to me and some advice in which way to go would be appreciated.

 

Also i have a suspended possession order after they went for repossession, now the thing is i think when they took me to court they first sent out a default notice, but i think that it is non compliant and would like a second opinion,and some advice on how to deal with a suspended position order that they got on the back of a dodgy default notice.

 

my issues with the default notice are

a]That they didn't give me 14 clear days to rectify.

b] No specific date to remedy (they say 14 days from date of letter)

c]The paragraph saying that if you dint understand this then seek advice from CAB is missing

 

the following is word for word what it says on the default notice and the only date on the notice is at the top of the page.

 

1] To remedy the breach you must pay the total arrears of £xxx within days of the date of this letter.

2] If the action required by this notice is taken before the 14 days, no further action will be taken in respect of the breach.

3] if you don't take the action required by this notice before this date then the further action set out below may be taken against you.

4] FURTHER ACTION: on or after the date shown above we shall apply to the court for an order for possession and sale of the mortgaged property.

 

so any advice on how to proceed with this would be greatly appreciated and thanks for looking.

 

welshperson (from bridgend:-))

Edited by welshperson3
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Not an expert on default notices, but even I know they have to give you 14 days from receipt, therefore 14 days from the date issued isn't long enough. I have no idea how you would go about removing the possession order though.

 

Re your charges, be warned the FOS have a huge backlog and it could take over a year to get a decision from them. My advice would be a court claim, but I think you need more advice on the possession order first.

 

My reply will bump you back up to the top of the forum so hopefully one of the experts will spot your thread. If not, post a quick message yourself which will bring it to my attention again, and I'll try to find someone to help.

RMW

"If you want my parking space, please take my disability" Common car park sign in France.

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Can you post up the DN with the appropriate bit blanked out as belt and braces - this could prove a very vital document because the court action means that the account is terminated.

 

Taking what you say on face value then UNLESS it was hand delivered on that date there is no way that DN can give you 14 days and the fact that it says letter implies postage which is the normal delivery method, plus as you say there is no specific date for remedy. This on the face of what you say (and this is the exciting bit) therefore constitutes unlawful recission of contract.

 

Soooo, You have ground to have the CCJ on which the possession order is based set aside and you become liable only for the amount of arrears stated in the DN.

 

BUT, I'd like to see the DN AND get a 2nd opinion or two before getting too excited

Edited by 42man
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Have they officially terminated your agreement (do you have a letter which states the agreement is terminated ?).....if they have then it is an unlawful recission of contract have a read of this and try and understand as best as you can - http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

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first thanks for all the advice

 

I will post up the DN when i workout how to upload,later today hopefully.

my thoughts also is that as they have acted on the DN by taken court action then that has terminated the account.

 

also think i will have to get the ccj set aside, would i be right in thinking i could get this set aside on the grounds of them not having the right to take court action because of them not issuing a compliant DN.

 

think over the weekend i will research a bit more on how to get a set aside,

not quite sure but i might be entitled to legal aid, another thing i need to check.

 

wp3

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I would agree that taking it to court is terminating....

.I am trying to look for some more information through the Consumer Credit Act, as there is somebody is a similar situation

- have a look here - http://www.consumeractiongroup.co.uk/forum/legal-issues/234799-co-op-bankruptcy-petition.html

Have a look here too - http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

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my first atempt at uploding DN with photobucket hope this works.

http://i902.photobucket.com/albums/ac230/welshperson3/img005.jpg

here is a part of blemains witness statement showing that they wanted full possession

http://i902.photobucket.com/albums/ac230/welshperson3/img006.jpg

my thinking is going for possession on a dodgy DN, and claiming for repossession equals game over for blamain.

hopefully there will be a new headline soon.

( BRIDGEND 2 BLEMAIN 0) :)

WP3

a quick question if anybody can help.

my DN is dated the 22/8/2007 which is a Wednesday so allowing two clear days for service what day would count as the first day.

my thinking is 2 clear days after the date which would be the Thursday and Friday the weekend don't count so first day is the Monday ?

or is it deemed served on the second after posting witch would make it the Friday ?

or can it be deemed served on a Saturday ?

wp3

Edited by welshperson3
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It's only deemed served after 2 days if they can PROVE first class post, else the default is 4 days which is second class.

The clock starts ticking the day you receive it and its 14 calendar days from that date.

If you cannot prove receipt and they cannot prove postage the it will be deemed served 4 (working) days after postage.

but anyway they have messed it up whatever!

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  • 2 weeks later...

A quick update

 

phoned blemain today (out of courtesy) to see if they will agree to my application for a set aside.

it came as a bit of a surprise when they say no they wont agree :(

 

also phoned the court they are sending out the forms so when i receive them i will post them up on here along with my defence.

 

wp3

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i had exactly the response i expected.

but when i mentioned unfair relationship they went on to say that as i have not got a repossession date and it is only a suspended possession order then this means nothing if i keep up with the payments.

if it meant nothing then why did they go for it ?

ANSWER

so they could add £1300 in solicitors costs (in house solicitors) and then go on to add over £4000 in 2 years.

I DO THINK I RATTLED THEY'RE CAGE THO ;)

WP3

some advice please.

"IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOU LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS' ADVICE BUREAU

on a default notice this paragraph is it a prescribed part, if so what date was it added.

wp3

Edited by welshperson3
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thanks 42Man

 

So now i have 3 separate issues with the DN.

 

1 no specified date to remedy.

2 not enough time to remedy.

3 a prescribed paragraph completely missing.

 

today i received a application form from the court for me to get this

set aside.

 

i will attach my defense but should it be a skeleton argument or a full defense.

 

wp3

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  • 2 months later...

Had two meetings with solicitor he is happy with what i got but he wants a barrister to look things over.

 

Hopefully i will issue court proceedings by the end of February.

Have been researching and working with solicitor for months so as to get it right think I'm there now.

 

going for S140 CCA unfair relationship.

 

If i win I'm sure it will make headlines

 

blamain lost on unfair relationship to peter Bentley, HE WAS FROM BRIDGEND SO AM I.

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hi welshperson

are you able to elaborate on 'going for s140 cca unfair relationship' re invalid dn? or is it too discreet at the moment?

thanks

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The original issue was just about the DN but since meeting with solicitor it has brought about numerous other points that effect the agreement.

 

So the unfair relationship is not really connected with the DN issue.

 

As soon as proceedings start i will post up my POC but not yet as it might give them a heads up .

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  • 2 months later...
  • 3 months later...

As the title suggests I have started court proceedings against blemain finance.

The application I have made is consisting of two parts,

Firstly I have a suspended possession order issued last year and I am asking the court to set aside this

On the grounds that blemain had no right to bring the original claim.

Before bringing a claim for possession they should issue a compliant default notice, the one I have is far from compliant it is short of the statutory days to remedy, also it is missing prescribed paragraphs.

Also possession proceedings should only be sought as a last resort, blemain finance were adamant that this was going to court, I was offering to pay £100 a month on top of the regular monthly payment but they would not accept this, but out side the courtroom door I spoke to the solicitor representing them and made a offer to pay £50 a month on top of the monthly payment, he then phoned blamain who accepted this offer of £50.

This shows that the overriding objective of blamain was not the arrears, but in fact just to get this to court so they could add more costs and the interest that they claim on these costs.

Unfair relationship test applies to the above as it covers not only the term of the agreement but also the way in which they carry out the agreement and anything they do.

The set aside I might get it and I might not, but if I don’t it is not the end of this claim the main point of this claim is related to how they have operated under this agreement and how they have added charges to the account.

My intention is to find out if £35 a phone calls and £35 a letter and £30 a month for being in arrears and numerous other admin charges are legal.

To date the charges approximately £5000 with out the interest that has been added to then.

Also a variable interest rate that was not explained to me how they can very the interest at will.

For example if they want to put the interest rate up to 50% from next month, just so they can make a lot of money then they can. (Unfair I think)

Commission paid to the broker that was not disclosed to myself at the time I took out this loan (secret commission) if the broker finds a loan that is not in the sub prime market he get a fee but if he finds a loan that is sub prime then his fee is considerably more.

So the question is was this loan the best option for me at the time or was it the one that was paying the broker the most money.

I have a court date for the application herring on the 18 August.

Now for my question.

S140 unfair relationship puts the burden of proof on them, I claim its unfair and it is until they prove that it is not, and this will require providing documentary evidence, now the problem I am having is to get them to disclose.

I have done a S.A.R. and they have only supplied a very limited amount of the documents I asked for, so do I file a N244 in court and ask the court to make them comply or can I get the requested documents using C.P.R. rules.

C.P.R. 31.14 I think only relates to documents mentioned in the claim but I want the under writing sheet and other things not mentioned in the original claim.

So what is the best way to get the documents that I want ?

Every thing I have written on here blemain knows about, as they would have received the court papers.

I hope you all understand that I have to keep something’s off the open forum as I am sure that they monitor forums such as this and I don’t want them to have a advantage in court by knowing my every move, but I will keep you all updated as to how things are progressing.

Finally,

Even if they pay back all the charges before going to court I will still continue to ask the court to make a decision on this as the way they have treated myself and my wife, I am now like a dog with a bone and I will not let this go.

The last time blamain went against someone from bridgend is all over the internet, I to am from bridgend and I don’t think blamain will want to lose this to someone from bridgend again as the publicity will be extremely bad. So I expect them to go at this with all guns blazing.

All help and advice will be greatly appreciated as this could set precedence for the claiming back of charges from all lenders.

WP3

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The Consumer Action Group is a free help site.

Should you be offered help that requires payment please report it to site team.

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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