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

[welshperson3]

I know Blemain finance read this thread, I also know they have read, and have posted on other forums.

So I have a question for someone from Blemain,

WOULD YOU BE WILLING TO POST ON HERE?

IN RETURN I PROMISS I WILL BE TOTALLY RESPECTFULL

WP3

[welshperson3]

Question for

Anyone that has blemain agreement and is behind with payments

Are they phoning you and asking for payments ?

The reason I ask is that I don’t get any, I used to get them all the time but I haven’t had any for over 6 months ( I don’t want to be left out )

The real reason I ask is that I believe they are under investigation by OFT, as the directors haven’t had their licences renewed by the OFT yet.

So if they are under investigation then maybe they are cutting back on the £35 a time phone calls.

Also if I phone them they are not as nasty as they used to be, still quite demanding,

But not demanding with menace.

So if you can let me know if anyone else is noticing a difference.

WP3

[phatram]

I've just received the following text,

"Heard strong rumour Blemain Group are in financial trouble, no funds left to lend having funding cut by UBS bank. Could go down soon".

[frettful38]

I've just received the following text,

"Heard strong rumour Blemain Group are in financial trouble, no funds left to lend having funding cut by UBS bank. Could go down soon".

 

Well you know what they say about rumours.........maybe we could get Blemain on the Jeremy Kyle Show to do a lie detector test? then we'd know for sure

[welshperson3]

BLEMAIN FINANCE LIMITED

 

Annual Accounts year ended 30 Jun 11

 

FULL ACCOUNTS MADE UP TO 30/06/11

Filed on: 03 Nov 2011

 

Have not got them yet but will be having a look,

 

wp3

[Gallahad]

Should make some interesting reading WP

G

[welshperson3]

A company’s Net Worth is calculated as Shareholders Funds minus Intangible Assets.

 

From the most recent set of accounts filed by BLEMAIN FINANCE LIMITED their net worth in 2010 was:

 

£92,330,460

 

2005 £26,446,000

2006 £35,551,000

2007 £21,781,013

2008 £37,294,933

2009 £66,303,835

2010 £92,330,460

[welshperson3]

From the most recent set of accounts filed by BLEMAIN FINANCE LIMITED total current assets in 2010 were:

 

£36,333,086

2005 £311,854,000

2006 £541,339,000

2007 £504,306,755

2008 £330,915,137

2009 £31,616,127

2010 £36,333,086

[welshperson3]

If you ever had a charge of monarch recoveries remember that all charges should only cover admin costs, and not be for profit, now look at the profit monarch made. And look at the cost of sales

Remember when you were having charges applied by monarch and blemain at the same time, in 2008 monarch made a pre tax profit of over 9.5 million pounds with a cost of sales of £0.

this document is relating to monarch not blemain, but if anyone wants a look at blemains let me know.

[Fielder]

Blemain are going down!!!! I am not at all sad, I am sure all concerned, directors etc. have earned very well on our money.

But, what about ongoing cases regarding unfair charges. Will I get my money back if they go?

[welshperson3]

Blemain are going down!!!! I am not at all sad, I am sure all concerned, directors etc. have earned very well on our money.

But, what about ongoing cases regarding unfair charges. Will I get my money back if they go?

 

 

Will you get your money back if they dont ?

[welshperson3]

Looks like im getting a pay rise

Litigant in person increased from £9.25 an hour to £18

Are you entitled to double time on Sundays ?

52.4

 

The amount, which may be allowed to a litigant in person under rule 46.3(5)(b) and rule 48.6(4), is £18 per hour.

Wp3

[spot]

Let me inspire you a little more:

 

Wulfsohn, R (on the application of) v Legal Service Commission [2002] EWCA Civ 250 LIP Costs.rtf

[welshperson3]

Thanks for that spot

The bit I like best is (I would allow the appeal, and I would award him costs of £10,460 in total)

And I am truly inspired

Wp3

[caro]

Hope you're keeping a record of the hours you're spending WP.

[welshperson3]

I today received a response to my defence (from blemains solicitors) and would like any opinions on the following part.

This is what they have said when I said about a fiduciary duty of the broker.

At paragraph 15 of the defence you have not set out the facts you rely on to support your assertion that your broker owed you a fiduciary duty and “to find the best deal”. What was done, said or agreed with your broker to make you think that he would find you “the best deal” rather than simply a deal.

Wp3

[patrickq1]

i would decline to answer that question ..will post you FIDICARY DUTY LEGAL MATTERS LATER WP

http://www.lexology.com/library/detail.aspx?g=5489ad5f-cf62-4627-a9d9-1212ab7c75c6

ABOVE IS THE ONE YOU WANT COMMISSION AND CONFLICT OF INTEREST

Good luck WP

Edited November 16, 2011 by patrickq1

[welshperson3]

Thanks patrickq1

Reading between the lines of what is said, they are going to rely on the second argument posted below. (sealy)

The decision in Hurstanger -v- Wilson (2007) is frequently cited as authority for the proposition that a broker can owe a fiduciary duty to a borrower on whose behalf he obtains a loan, and more specifically: in those circumstances, the taking of an unspecified sum of commission is breach of the fiduciary duty. But the recent decision in Sealey and Winfield –v- Loans.co.uk Ltd (1) and GE Money Secured Loans Ltd (2), Cardiff County Court, 15 August 2011, is distinguished from Hurstanger on its facts, and suggests that generally speaking, a broker will not be a fiduciary at all.

HurstangerThe facts of Hurstanger were that borrowers who were in arrears on a loan sought the help of a broker in arranging a loan to re-finance and clear their arrears. The lender sent the borrowers documents to sign, and in one of them it stated that commission was paid to brokers. No amount was given. The documents further expressly stated that the brokers were agents of the borrowers.

A commission of £240 was paid to the broker on completion of the loan. Later, a dispute arose and one of the issues was whether the payment of the £240 was a secret profit which would put the broker in breach of his fiduciary duty to the borrowers. The question asked by the court was whether informed consent to the payment could be given, when the amount was not known.

The court found that borrowers in this market were more likely to be vulnerable and unsophisticated, and so in those circumstances, the amount of the commission to be paid should have been disclosed so that the borrowers could be aware of the potential conflict of interest. In not disclosing it, the brokers as agents had breached their fiduciary duty. In a further twist, the lender who paid the commission to the brokers was found to be an accessory to the breach.

Sealey distinguishedSealey established that while brokers owe a duty to their clients to act in their best interests and introduce them to a lender who will give them a good deal on the financial accommodation they are seeking, this does not result in them pledging undivided loyalty, and hence create a fiduciary duty. Their obligation is to do no more than fulfil their contractual duty – to act in their clients’ best interests – which does not put them in a position where they have an obligation of undivided loyalty to their clients.

Sealey is distinguished because in that case, the lender’s documents said that commission was paid to brokers but it did not define the broker as being the borrower’s agent – he was simply acting as an intermediary under the terms of his contract. The court went further and said that even if the broker had been a fiduciary, the borrowers had given informed consent to the commission. Even though the amount was not disclosed, on the facts the borrowers had given informed consent and could have enquired as to the amount if they had chosen to: the issue of the commission payment was clearly set out in the documents and had been explained orally. In these circumstances the case differed from Hurstanger as the situation there was not so clear cut.

Comment

The position is therefore that unless the broker is clearly defined as the borrower’s agent, the relationship between the parties will be based on normal contractual principles, and no fiduciary duties will arise. Furthermore, a commission paid to a broker will not necessarily be secret even if the amount of it is not quantified – what is material is whether the commission arrangement is clear and unambiguous, and brought to the attention of the borrower. Any review of terms of business would be wise to direct attention to these specific points, for the peace of mind of both the broker and lender involved in the transaction.

[welshperson3]

Well the one difference between the two cases above is this.

Hurstanger -v- Wilson (2007)

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM COVENTRY COUNTY COURT

MR RECORDER MICHAEL DOUGLAS Q.C.

Sealey and Winfield –v- Loans.co.uk Ltd (1) and GE Money Secured Loans Ltd (2), Cardiff County Court, 15 August 2011

Wp3

[welshperson3]

Sealey distinguishedSealey established that while brokers owe a duty to their clients to act in their best interests and introduce them to a lender who will give them a good deal on the financial accommodation they are seeking, this does not result in them pledging undivided loyalty, and hence create a fiduciary duty

Myself I don’t think Sealy argued his points clearly enough, or the judge was looking at another judgment.

The following paragraphs are direct from the judgment in hurstanger

1. During the course of counsels' submissions on this part of the case it seemed to us that we might need to consider the applicable law, its application to the facts of this case and the consequences of doing so in rather greater depth than counsel had anticipated. Therefore at the end of the hearing we asked for written submissions and we are grateful to both counsel for the further submissions which they have provided.
   

1. Certain things are clear. The defendants retained the broker to act as their agent for a substantial fee. The contract of retainer contained the usual implied terms, but the relationship created was obviously a fiduciary one. As a fiduciary the agent was required to act loyally for the defendants and not put himself into a position where he had a conflict of interest. Yet he agreed that he would be paid a commission by the other party to the transaction which his clients had retained him to procure. By doing so he obviously put himself into a position where he had a conflict of interest. The defendants were entitled to expect him to get them the best possible deal, but the broker's interest in obtaining a further commission for himself from the lender gave him an incentive to look for the lender who would give him the biggest commission.
   

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

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

6-057. Consent of the principal is not uncommon. But it must be positively shown. The burden of proving full disclosure lies on the agent and it is not sufficient for him merely to disclose that he has an interest or to make such statements as would put the principal on inquiry: nor is it a defence to prove that had he asked for permission it would have been given.

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

1. There is some doubt as to whether the agent's duty of disclosure requires him to disclose to his principal the amount of the commission he is to receive from the other party. At [6–084] Bowstead says:
   

… where [the principal] leaves the agent to look to the other party for his remuneration or knows that he will receive something from the other party, he cannot object on the ground that he did not know the precise particulars of the amount paid. Such situations often occur in connection with usage and custom of trades and markets. Where no usage is involved, however the principal's knowledge may require to be more specific.

The cases cited support these propositions. Here I think the requirement is more special. Borrowers like the defendants coming to the non-status lending market are likely to be vulnerable and unsophisticated. A statement of the amount which their broker is to receive from the lender is, I think, necessary to bring home to such borrowers the potential conflict of interest.

1. There is nothing about any of this which should come as a surprise to any lender or broker working in the non-status lending market. In November 1997 the Office of Fair Trading issued revised guidelines which told such lenders to:
   

[15]. warn that the broker or other intermediary may not be in a position to give unbiased advice if they are tied to the lender or are paid a fee or commission by the lender. [16] The contract documentation and any customer booklet or leaflet … should … indicate if any commission or other payment is payable by the lender to the broker, and should explain the purpose and nature of any such commission and the basis of calculation.

and told such brokers to:

[20]. disclose both orally and in writing at an early stage, the existence and nature of any commission or other payment payable by the lender … they should explain clearly the implications of any such commission for the broker's role with regard to the borrower. This is in order that the borrower is clear as to any potential conflict of interest on the part of the broker. The Office would encourage brokers to disclose the amount or likely amount or percentage figure of the commission, since such transparency will help to reassure borrowers that they are receiving appropriate advice from the brokers. Where this is not done, the broker should disclose the factors which will determine its calculation, including whether it will be a percentage of the loan or a fixed sum and whether it is intended to reflect the actual costs incurred by the broker in arranging the loan or is linked to the total volume or value of business brought to the lender over a given period. All such disclosures should be made in writing before the borrower enters into the loan agreement and preferably before the loan application is submitted to the lender.

1. Obviously if there has been no disclosure the agent will have received a secret commission. This is a blatant breach of his fiduciary duty but additionally the payment or receipt of a secret commission is considered to be a form of bribe and is treated in the authorities as a special category of fraud in which it is unnecessary to prove motive, inducement or loss up to the amount of the bribe. The principal has alternative remedies against both the briber and the agent for money had and received where he can recover the amount of the bribe or for damages for fraud where he can recover the amount of any actual loss sustained by entering into the transaction in respect of which the bribe was given. (Mahesan v Malaya's Housing Society [1979] AC374, 383). Furthermore the transaction is voidable at the election of the principal who can rescind it provided counter-restitution can be made. (Panama & South Pacific Telegraph Co. v India Rubber, Gutta Percha, and Telegraph Co. [1875] 9 Ch App 515, 527, 532-3).
   

1. But "the real evil is not the payment of money, but the secrecy attending it" (Chitty L.J. in the leading case of Shipway v Broadwood [1899] 1 QB 369, 373). Is there a half way house between the situation where there has been sufficient disclosure to negate secrecy, but nevertheless the principal's informed consent has not been obtained? Logically I can see no objection to this. Where there has only been partial or inadequate disclosure but it is sufficient to negate secrecy, it would be unfair to visit the agent and any third party involved with a finding of fraud and the other consequences to which I have referred, or, conversely, to acquit them altogether for their involvement in what would still be breach of fiduciary duty unless informed consent had been obtained. There is no authority which sheds any light on this question. We have been referred to Bartram & Sons v Lloyd [1904] 90 Law Times Reports 357 where a secret commission had been agreed and paid but the question there was whether the principal had elected to affirm the contract with the other party at a later meeting when he was given some information about what had happened. The court held that he had not, but the decision turned upon whether the principal had made his election with full knowledge of the material facts and not upon the consequences of an inadequate initial disclosure.
   

1. So what is the position in this case? Mr Say submits that the disclosure to the defendants was entirely inadequate and did not negate secrecy. It simply said that a commission might be paid to the broker but should have said that a commission was to be paid and stated the amount because these facts were known at the time the defendants were asked to sign the document relied upon by the claimant. The defendants' fully informed consent to the payment of commission had not therefore been obtained. Furthermore he submits that the notice was ambiguous: having said that in certain circumstances the claimants did pay commission it went on to say it would "pay monies to your brokers strictly in accordance with your signed authority by deduction from this advance".
   

1. Mr Seymour submits that it was for the defendants to establish that there had been inadequate disclosure. The allegation that the claimant had paid a secret commission or bribe was serious and yet the defendants had called no evidence to substantiate it. We do not know what, if anything, they were told by the broker or what they understood from the document which they signed. It had not been established that the claimant had procured any breach of duty by the broker. Nevertheless Mr Seymour submits that there was sufficient disclosure. Secrecy had been negated by informing the defendants that commission might be paid and the payment did not become secret simply because they were not given the actual details of the amount paid. Nor, Mr Seymour submits, was the notice ambiguous. Read carefully, as the borrower was told to do, the passage relied upon by Mr Say referred first to a payment by "the company" "in certain circumstances", and then two sentences later to monies payable by the borrower which they had authorised to be dispersed out of the proceeds of the loan. In other words the document is referring to different payments by the lender and the borrower. The payment by the lender to the broker would only be made in certain circumstances; the payment by the defendants out of the proceeds of the loan would be made to the broker in any event.
   

1. Having looked at the pleadings, the written submissions and the Recorder's judgment it seems to me that it was common ground between the parties at trial that the only disclosure made to the defendants was by means of the claimant's document which the defendants signed. The broker's letter said nothing about any disclosure which he had made; nor did Mr Fellowes suggest that anything else had been disclosed by anyone. By signing the document the defendants must be taken to have understood what it said but no more. Quite apart from this, the passage from Bowstead which I have cited in [35] says that it is for the agent to establish that sufficient disclosure has been made. Here the claimant knew that the broker was the defendants' agent and so it had to show that it paid commission to him in circumstances where its borrowers had given their informed consent to such a payment. That was obviously the purpose of the document the defendants were asked to sign. The question is whether it achieved that purpose.
   

1. Did it negate secrecy? I think it did. If you tell someone that something may happen, and it does, I do not think that the person you told can claim that what happened was a secret. The secret was out when he was told that it might happen. This was the Recorder's view and I agree with him.
   

1. Was the defendants informed consent obtained? I do not think it was. The passage which I have quoted was muddled although, read carefully, for the reasons given by Mr Seymour, it may not in fact have been ambiguous. But it could and should have been clearer and informed the defendants that a commission was to be paid and its amount and done so in terms which made it clear that the defendants were being asked to consent to this. I also think this statement should have been accompanied by the warning recommended by the OFT to the effect that its payment to the broker might mean that he had not been in a position to give unbiased advice.
   

1. So for these reasons I do not accept either party's submissions about the disclosure. This is a half way house case. The claimant did not pay the broker a secret commission but procured the broker's breach of fiduciary duty by failing to obtain the defendants' informed consent to the broker acting in the way he did.
   

[Dougal16T]

Morning all,

 

Time for me to add my threepenn'orth:

 

There has been much thought on this: (Mainly by Counsel acting for Lenders I notice!)

 

"Secret Commission and Fiduciary duty

 

The decision in Hurstanger -v- Wilson (2007) is frequently cited as authority for the proposition that a broker can owe a fiduciary duty to a borrower on whose behalf he obtains a loan, and more specifically: in those circumstances, the taking of an unspecified sum of commission is breach of the fiduciary duty.

 

But the recent decision in Sealey and Winfield –v- Loans.co.uk Ltd (1) and GE Money Secured Loans Ltd (2), Cardiff county court 15 August 2011, is distinguished from Hurstanger on its facts, and suggests that generally speaking, a broker will not be a fiduciary at all.

 

Hurstanger: The facts of Hurstanger were that borrowers who were in arrears on a loan sought the help of a broker in arranging a loan to re-finance and clear their arrears. The lender sent the borrowers documents to sign, and in one of them it stated that commission was paid to brokers. No amount was given. The documents further expressly stated that the brokers were agents of the borrowers.

 

A commission of £240 was paid to the broker on completion of the loan. Later, a dispute arose and one of the issues was whether the payment of the £240 was a secret profit which would put the broker in breach of his fiduciary duty to the borrowers. The question asked by the court was whether informed consent to the payment could be given, when the amount was not known.

 

The court found that borrowers in this market were more likely to be vulnerable and unsophisticated, and so in those circumstances, the amount of the commission to be paid should have been disclosed so that the borrowers could be aware of the potential conflict of interest . In not disclosing it, the brokers as agents had breached their fiduciary duty. In a further twist, the lender who paid the commission to the brokers was found to be an accessory to the breach.

 

 

Sealey distinguished:

 

Sealey established [this is totally incorrect – it was not established, it was held by the presiding Judge] that while brokers owe a duty to their clients to act in their best interests and introduce them to a lender who will give them a good deal on the financial accommodation they are seeking, this does not result in them pledging undivided loyalty, and hence create a fiduciary duty. Their obligation is to do no more than fulfil their contractual duty – to act in their clients’ best interests – which does not put them in a position where they have an obligation of undivided loyalty to their clients.

 

Sealey is distinguished because in that case, the lender’s documents said that commission was paid to brokers but it did not define the broker as being the borrower’s agent – he was simply acting as an intermediary under the terms of his contract. The court went further and said that even if the broker had been a fiduciary, the borrowers had given informed consent to the commission. Even though the amount was not disclosed, on the facts the borrowers had given informed consent and could have enquired as to the amount if they had chosen to: the issue of the commission payment was clearly set out in the documents and had been explained orally. In these circumstances the case differed from Hurstanger as the situation there was not so clear cut. [i do not agree, this appears to be attempt to subvert [i]Hurstanger[/i]]

 

Comment

 

The position is [again, I disagree, the position is variable on a case by case basis] therefore that unless the broker is clearly defined as the borrower’s agent, the relationship between the parties will be based on normal contractual principles, and no fiduciary duties will arise.

 

Furthermore, a commission paid to a broker will not necessarily be secret even if the amount of it is not quantified – what is material is whether the commission arrangement is clear and unambiguous, and brought to the attention of the borrower. [again, this is not what the Appeal Court ruled in Hurstanger] Any review of terms of business would be wise to direct attention to these specific points, for the peace of mind of both the broker and lender involved in the transaction.

 

However the decision in Sealey is a decision in the County Court, (and NOT binding on other County Courts) and is open to Appeal, which will I believe rule by citing Hurstanger, (and of course Kelvin Jack.)

Edited November 17, 2011 by Dougal16T
poor speelling.....!!!

[determindator]

Is it possible to get Blenheim listed in the 'other institutions' catergory like Swift. This thread is not easily found and it is a shame if all the work WP is doing goes unread.

 

Thanks

[determindator]

Is it possible to get Blemain listed in the 'other institutions' catergory like Swift. This thread is not easily found and it is a shame if all the work WP is doing goes unread.

 

Thanks

[welshperson3]

Hi

Any opinions on the paragraph below would be more than welcome.

I added the red to let you know what they are responding to.

1 the claimant is unable to respond to any allegations about the conduct of the broker, which is a separate entity. (Broker commission)

2 it is agreed that the claimant has added administration charges to the defendants account in accordance with its contractual entitlement to do so and as a result of,inter alia, the defendants continued failure to make any payments.

(thousands of pounds worth of charges £35 letter £35 phone £40 monthly admin)

3 the claimant has also debited the sum of £800 to the account in respect of buildings insurance as the defendants failed to provide any evidence that they had taken out the same. ( I cant say to much about this at the moment, don’t want to give them a heads up, but all comments welcome)

4 it is averred that the administration charges are part of the “price” of the contract and are not open to assess ment for fairness under the unfair terms in consumer contract regulations 1999 pursuant to regulation 6(2)(b) (this is were they are going to try and baffle the judge with the OFT V BANKS judgment )

5 it is averred that the administration charges were a genuine pre estimate of the loss suffered as a result of the defendant’s breaches of the credit agreement. (Firstly the charges only occurred on a breach, which makes them penal, and secondly I have documents showing they make millions per year profit on charges.)

6 it is denied that he claimant has contravened any of the FSA guidelines or that such guidelines have any binding force in court proceedings. in any event the claimant was not regulated by the FSAas the credit agreement was secured by a second charge.( using FSA guidelines to show what is considered unfair, for the purpose of S140 CCA UNFAIR RELATIONSHI)

7 it is denied that the claimant can be responsible for any misconduct by the broker.

(I think they need to read up a bit more on this statement)

[welshperson3]

duplicated post

Edited December 3, 2011 by welshperson3
duplicated post