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

[welshperson3]

what this company is doing is why the unfair rules were introduced, if i loose it will be because of misdirection of the judge not on any thing about fairness.

 

also i have already looked at appeal so i am prepared.

 

who ever wins this i think there is going to be a appeal it is to big for them to lose, and i know what they do is unfair so i am not backing down

 

thanks for the well wishes G

 

wp3

Edited October 6, 2010 by welshperson3

[landy_alert]

Keeping everything crossed for you WP3

 

Landy x

[welshperson3]

Thanks landy

 

Hopefully i should be OK as they are relying on technicalities and i am the one that is after fair dealings.

 

 

wp3

[Dougal16T]

VERY GOOD LUCK AND BEST WISHES FROM ME,

 

Remember, this is not the first time that Blemain have tried and lost!!

 

BEST WISHES TO ALL IN THE FIGHT AGAINST THOSE WHO SEEK TO SUPPRESS AND OPPRESS US,

 

DOUGAL

[sillygirl1]

Good luck with this, their arguments do sound weak and the fact that they seem to want to increases the costs by sending a barrister (ask for their legal qualifications - you have a right to this info) seems to point to them getting into a panic situation.

 

If you get a chance say to the judge when costs are mentioned that costs should not be awarded to the claimant as they have changed the legal advice at the last minute.

[welshperson3]

Just got back from court it was adjourned.

 

The judge was not impressed; the reason was that they were going to rely on authorities that I have not received.

 

They say that they posted them on Monday but I don’t think they did as the court only received them this morning.

 

But I also was in the wrong (I put my bundle in to court late) my reasons were that as I had sent a part 18 request off to them and was waiting for a reply and was also waiting for a reply as to the judges order that they should send a response to my claim, but as the judge pointed out that he had made a order and this was no excuse.

 

And my first point about an invalid default notice

The judge then went on to say that he had read the arguments and he thinks that they can issue a new default notice to rectify their mistakes. And then says it is up to me to show him why they cant

 

And on that point the original judgment is flawed but that doesn’t mean that they cant have another go.

 

I think I can convince him on this matter but it is not the end of the world if I don’t as the unfair relationship is the main point, as if it is found unfair then he has the power to alter any of the terms and this is what will really hurt them and hopefully set a precedence, it is only in county court but it will still be taken in consideration in all other county court cases.

 

Their first point is that it should not be allowed to continue to trial as it is out of time.

 

The judge says that on his opinion they are wrong and that they might want to think about that.

 

My view is that the judge wants this to go to trial.

Judge went on to discus costs for today.

 

I wasn’t allowed costs, as I had not complied with the directions order for service of documents

And I can’t argue, as it is true, I made a mistake in waiting on them to respond to a court order. (LESSON LEARNED ALLWAYS COMPLY WITH COURT ORDER)

 

The baddies then say that they are going to rely on an indemnity clause in the agreement.

Judge was not imprested by that he then says no and that he is making an order for no costs for today and that they must not add costs to the agreement.

 

How much a London barrister cost for the day ?

 

Summary

1 The opinion I got from today is that the judge is clued up about credit law.

2 That he is not going to throw this out.

3 That I got my hands full trying to prove invalid default notice would leave them no right in issuing another default notice.

4 This judge has concern on the unfair aspect and want to judge on the unfair part,

5 It also looks as though he is going to be fair as can be seen in the way he dealt with the charges.

6 A bit disappointed that it didn’t go on today but it gave me hint as to what to expect.

 

 

wp3

[Gallahad]

Well done Wp not a bad result for the first skirmish I would say.

G

[welshperson3]

Yep I think it is looking ok.

A bit disappointed about adjournment though

but it was a good insight as what to expect

[frettful38]

Well I believe you have had a fantastic result, and have made me even more determined to fight them.

 

Great job WPS keep the fight going.

[welshperson3]

fretfull we are in the same boat and my outcome may well help you and others and if it does it would make this even sweeter for me.

[frettful38]

fretfull we are in the same boat and my outcome may well help you and others and if it does it would make this even sweeter for me.

 

Thanks WP3 and yes we are in the same boat, just have to make sure there are no holes in it as Blemain have got their crocodiles all around it.

 

I am sure that you will win in my opinion especially when you start firing the Unfair Relationship grenades LOL!!!!!!!!!

[welshperson3]

anybody having trouble with the interest rates variation clause of their agreements ?

 

 

Dyson LJ, who was also a judge in Paragon Finance v Nash, Staunton,

clarified the position regarding the relevance of interest rate variations in

determining whether a credit bargain was extortionate. Dyson LJ

maintained his view in Paragon Finance that the way in which an interest

rate variation is operated is not a factor to be taken into account in

determining an extortionate bargain. However, he also mentioned that he

did not mean that the existence of such a clause could never be relevant

to the question of whether the credit bargain is extortionate because

such a clause had the potential to make a credit bargain extremely

burdensome. It was also said that the failure of the lender to inform the

borrower of the way the interest rate variation clause is operated is a

factor to be taken into account in determining whether there had been a

gross contravention of the ordinary principles of fair dealing

 

and maybe just a tad unfair !

 

WP3

[frettful38]

Excellent info WP3, I can add this above to my long list of all the other things I have.

 

Great and thanks again

[Gallahad]

Bet the boyos in manchester will tremble when the spies read that one tomorrow

G

[welshperson3]

Update

 

I still have not received a copy of there court bundle, I have had their skeleton and a witness statement but no case law that they are relying on. or copy of any agreements or letters that they are going to use in court.

 

I think this was an attempt to ambush me in court

If they can get an advantage over some one, legal or not they are going to get it,their lack of fair play is astounding.

 

They have a legal department that is well aware of their duty’s when it comes to sending documents but is still trying all the dirty tricks in the book and some more.

It just goes to show how low this company will stoop

I have sent of copies of my previous 5 unfulfilled requests for information and request that they send a copy of a court bundle to be received by me 5 days before trial.

 

I have sent my bundle so have nothing else to comply with, but what happens if they continue to frustrate proceedings.

As I started the case can the case continue with out them supplying documents?

Or if they don’t turn up what would happen?

Edited October 10, 2010 by welshperson3

[welshperson3]

Got my hands full

 

 

 

RUTH BALA

 

 

Called Lincoln's Inn (2006)

Lord Denning Scholarship, Lord Brougham Scholarship and Hardwicke Award

Classics (Greats) at Oriel College, Oxford University

Law conversion course (CPE) at City University

Masters in Law (LLM) at University College London

[email protected]

Ruth practises in all areas of consumer and regulatory law.

 

She regularly represents banks and other financial institutions in courts all over the country on a broad range of consumer credit matters, including enforceability disputes, alleged mis-selling of Payment Protection Insurance, payment of ‘secret commissions’, provision of copy documents, compliance with drafting requirements, ‘extortionate credit bargains’ and the ‘unfair relationships’ test. Ruth also undertakes drafting and advisory work in these areas.

 

Ruth regularly appears in court in mortgagee possession and appeal proceedings, sale and supply of goods disputes, contractual disputes, claims for debt and insolvency proceedings.

 

Ruth has experience in other regulatory matters, both civil and criminal. During her pupillage she worked as a Trading Law Specialist at Asda and advised on the legality of comparative advertising. She also completed an internship at the Office of Fair Trading, which involved advising on the application of the Unfair Terms in Consumer Contracts Regulations 1999, the Enterprise Act 2002 and the Consumer Protection from Unfair Trading Regulations 2008. She has represented local authorities in a variety of regulatory trials.

 

Publications: contributor to ‘Advertising Law and Regulation’, ed G. Crown, 2nd edn, Bloomsbury Professional (2010)

[caro]

If, when you get to court, you find yourself at a disadvantage because you haven't had all the information you need, make sure that the judge is aware of this. You could even ask for an adjournment.

 

If a court order or even CPR requests haven't been complied with, you might consider applying for the case to be struck out.

 

If there are references to things that you can find though, get yourself copies so that you can respond to them in court if necessary.

 

Take a look at this excellent advice from BRW too. I hope it helps.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?163425-Re-Me-vs-MBNA-court-case-looming-help-please-**DISCONTINUED**&p=2171582&viewfull=1#post2171582

[welshperson3]

Thanks for the link Caro it was very helpful

Just a quick question does anybody know if an indemnity clause in the agreement allows them to add costs to the agreement if they lose in court?

Reason I am asking is that they tried to rely on this when we were in court so that they could add their costs for the day to my agreement.

All they sent me in regards of a court bundle is the skeleton argument, I can see what case law they are going rely on out of that but I don’t know if they are going to produce any other documents. So I have sent a recorded delivery letter requesting copy of the court bundle delivered to me 5 days before the hearing.

If I don’t get a copy of the court bundle I will see if I can get the case law mentioned in the skeleton and ask the judge not to allow any thing else that they have in the bundle.

As for asking for a strike out I am the one that started the case,

caro it was adjourned last time for lack of information.

I have tried everything I can to get information from this company SAR / CPR REQUEST /SECTION 77/78 REQUEST they haven’t complied with there duties under any of them but there is no real penalties when they don’t.

They have more to lose if they disclose what they are doing, than any penalty for non-compliance.

[frettful38]

Hi WPS I am not sure if this is of any help but I have been reading that the OFT do not like the use of Indemnity clauses in agreements. I hope the info below is of some help to you.

 

http://www.gillhams.com/articles/179.cfm

 

 

Unfair Contract Terms

 

 

• Consumer Rights
  

 

 

When a dispute arises over a clause in a contract, it is easy for the party defending this clause to say ‘well, you should have read the contract’. But how many of us actually take the time to trawl through the small print when signing up to an agreement? Most of us will assume good faith, and rely on our statutory rights to protect us. However, complaints regarding minimum term clauses in mobile phone contracts and gym membership contracts, as well as the use of exclusion or indemnity clauses by unscrupulous firms is proof that this can be a false assumption.

Such contract terms may be found to be unfair, and hence legally unenforceable. For guidance on this, we refer to the Unfair Contract Terms Act 1977. In a nutshell, this piece of legislation protects consumers who enter into legally binding agreements with suppliers where the contract is biased in favour of the supplier. Unfair clauses are those which try to exclude any of the following:

 

• liability for negligence in the event of death or personal injury. Liability for loss or damage may be excluded, but only where it is considered reasonable.
  
• liability for breach of contract. This includes situations in which the supplier did not carry out their contractual obligations (the item was not as described or the service not carried out)
  
• Indemnity clauses are those which protect an individual or a supplier from legal action in the event of professional negligence
  
• Product guarantees designed to protect the consumer in case of damage of defect
  
• Statutory rights with regard to Sale of Goods and Supply of Goods and Services legislation.
  
• Misrepresentation in the form of false or inaccurate claims
  

The following are also taken into account when deciding whether a clause is ‘reasonable’ or not:

 

• The relative strengths of supplier and consumer and whether there is a significant imbalance
  
• Whether you were offered an inducement to agree to the term
  
• Whether the items purchased were produced or adapted to your particular requirements.
  

More recently introduced European Regulations clarify further definitions of what constitutes ‘unfair’.

 

1. Making the arrangement legally binding on you, but not on the supplier.
   
2. Allowing the supplier to retain money in the event that you cancel, but not obliging the supplier to pay compensation in the event that they cancel.
   
3. The requirement for you to pay cancellation charges which are disproportionately high.
   
4. Allowing the supplier to dissolve the contract on a discretionary basis, without giving you the same right.
   
5. Allowing the supplier to cancel the contract without reasonable notice to you.
   
6. Automatic contract renewals where you are not given reasonable opportunity to prevent the renewal.
   
7. Incorporating legally binding contractual terms without giving you reasonable opportunity to become familiar with them before signing.
   
8. Allowing the seller to alter the terms of the contract without a valid reason which is specified in the contract.
   
9. Allowing the supplier to determine the price at the time of delivery, or significantly increasing the price without giving you the chance to cancel.
   
10. Giving the supplier the right to determine whether the goods you receive are as described or allowing him to interpret contractual terms as he sees fit.
    
11. Legally obliging you to fulfil your obligations, while not obliging the supplier to fulfil his.
    
12. Allowing the seller to transfer his rights and obligations if it affects any product guarantees you may have with him.
    
13. Not allowing or restricting your right to take legal action against him for negligence or breach of contract
    

For further information, see the regulations themselves:

 

• Unfair Terms in Consumer Contracts Regulations 1999
  

 

http://www.oft.gov.uk/shared_oft/business_leaflets/unfair_contract_terms/oft143.pdf

[welshperson3]

THANKS FRETTFUL38

 

I have the Unfair Terms in Consumer Contracts Regulations,but i didnt realise a indemnaty clause was in them.

 

have a look at 29.7 of your agreement terms and conditions see if it says the same as mine.

 

29.7 "RATE" means (in the case of unregulated agreements) the higher of 5% above the base rate for the time being of the bank of Scotland or the highest rate payable under any credit agreements and (in any other case) the highest rate of interest payable under the relevant agreement;

 

 

have you ever seen a better example of a unfair term ?

 

if you read it it shows your interest rate can only ever go up it can never come below what says on your agreement,

This is one that the OFT should be made aware of.

wp3

[frettful38]

Hi WPS, yes my term says that exact same thing. You and I know that our agreements are full of unfair terms and it would be impossible for any lender to change so many. Mine is unregulated and any term that has to be changed will turn it in to a regulated agreement.

 

Looks like wither way Blemain will have a run for their money.

[caro]

As for asking for a strike out I am the one that started the case,

 

caro it was adjourned last time for lack of information.

 

I have tried everything I can to get information from this company SAR / CPR REQUEST /SECTION 77/78 REQUEST they haven’t complied with there duties under any of them but there is no real penalties when they don’t.

 

They have more to lose if they disclose what they are doing, than any penalty for non-compliance.

 

 

 

 

Then apply to have their defence struck out so that you get judgement by default. Work out a schedule of wasted costs and ask for those too.

[welshperson3]

Just got back from court have to wait for the judge to hand down his judgment could take up to 28 days.

 

Didn’t go as I was expecting but it wasn’t bad.

 

 

Now this claim was stared by myself, and in the application I made to the court was to set aside a suspended possession order and I was claiming that there is an unfair relationship under section 140A of the CCA

 

 

Now when you make an application to set aside there are things that you have to show

Firstly that you have a defence that has a reasonable prospect of successes

 

I did this by showing that the possession claim made by blemain was flawed in that they have not issue a valid default notice judge accepted that the original claim is flawed.

 

But he is of the opinion that they can issue a new one and try again, so I then turn to the unfair relationship.

 

Now at this point I turn to the unfair relationship and tell him about the charges and the way the claimant has behaved in general. And this is were I started to doubt that he knows anything about the rules of CCA or the The Unfair Terms in Consumer Contracts Regulations 1999 (UTCCRs)

 

He was of the belef that as it was in the contract then it is ok for them to do as they please, but I think I have done enough to send him away thinking about this.

 

Now the judge is going to think this over and then decide if he should set aside the possession order.But he is not judging on the unfair relationship!

 

This is the part that gets complicated so I will set it out in the next post .

 

 

Wp3

[welshperson3]

Now I raised the issue of an unfair relationship when I started the claim.

 

But the judge is of the opinion that I first have to set aside the original judgment before he judges this on the unfair relationship.

 

I was of the opinion that if my set aside application should fail then this would not affect the unfair relationship part of the claim.

 

 

Now as the barrister for blemain explained out side court that the reason that this has to be set aside first is that if the original judgment is enforce and then there is another judgment, then the effect could be that there is two judgments on the one agreement and that they would be contradicting each other.

 

Now I am aware that this is the barrister for the opposition, but she was pleasant enough and their seams to be sense in what she said.

 

 

Now if this is set aside then all good and well.

 

But if it is not set aside then surely one cannot be bound by a court order to unfair terms and unfair conduct, with no right of court action to correct the injustice.

 

Now I will be doing a lot of research on this but if any body can point me in the right direction it will be appreciated.

[patrickq1]

caro please empty your inbox ta

patrickq1