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

[welshperson3]

So looks like Monarch are Blemain's in-house debt collectors.

 

 

 

Yep but how they do it with no employees is beyond me.

Accounts filed at company house state no employees

wp3

[caro]

Yep but how they do it with no employees is beyond me.

Accounts filed at company house state no employees

wp3

 

Agency staff?

[caro]

Thanks to rebel for looking this out.

 

http://www.oft.gov.uk/shared_oft/bus.../OFT664Rev.pdf

 

3 UNFAIR OR IMPROPER BUSINESS PRACTICES

3.1 This chapter identifies matters that the OFT considers to be unfair or

improper business practices for the purposes of section 25(2A)(e) of

the Act. These are set out under the following sub-headings:

• Communication: businesses should communicate in a clear,

accurate and transparent manner

• False representation of authority and/or legal position:

businesses should accurately and truthfully represent their

authority/status and the correct legal position with regard to

debts and the debt recovery process

• Physical/psychological harassment: businesses should not

engage in physical or psychological harassment of debtors, or

relevant third parties

• Deceptive and/or unfair methods: businesses should be truthful

and fair in their dealings with debtors and others

• Charging for debt recovery: charges should not be levied

inappropriately or unfairly

• debt collection visits: those visiting debtors must not act in a

threatening or unclear manner

• statute barred debt: businesses should not use unfair methods

(including misrepresenting the legal position) if seeking to

recover statute barred debt

• Data accuracy: businesses should have appropriate processes in

place with a view to ensuring that customer data is accurate

and take reasonable steps to ensure that it is adequate, with a

view to only the actual debtor and valid debts being pursued for

repayment.

 

Communication

3.2 It is unfair to communicate with debtors, or their representatives, in

whatever form, in an unclear, inaccurate or misleading manner.21

3.3 Examples of unfair or improper practices are as follows:

a. use of official looking documents intended to, or likely to,

mislead debtors as to their status.

For example, documents made to resemble court documents.

b. leaving out or presenting information in such a way that it

creates, or has the potential to create, a false or misleading

impression, or exploits a debtor's lack of knowledge

c. those contacting debtors not making clear who they are, who

they work for, what their role is and the purpose of the contact

d. sending misleading communications or making misleading

statements which may induce a debtor to make contact on the

basis of a false or misleading premise

[welshperson3]

Agency staff?

 

No it was blemain staff loan would show on computer as being passed to monarch then you get a call from monarch, if loan showed blemain then you get a call from blemain but all from the same staff.

[caro]

I agree that seems far more likely but was trying to look beyond the obvious. Bang out of order.

[welshperson3]

Not out of order at all, I like to see all angles before court rather than during.

And nothing pleases me more than when someone posts a different opinion than mine, then a good debate, and if I am wrong, then I have learnt something and it was worth getting out of bed that morning.

wp3

[caro]

Sorry WP, I was suggesting that it was bang out of order to claim to pass a debt on to a collections agency when really it's the same people.

 

I should have made myself clearer.

[iconoclash]

[

The following paragraphs are direct from the judgment in hurstanger......

 

 

1. . [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.
   

 

hi - sorry to but in here but have been trying to catch up and inform myself as ive had no internet (being broke) and in court next week. Im dealing with a finance house but cant go into much detail as theyve been searching everywhere for info. to use against me.

A broker introduced me to a product but there are no fees on the contract. The SAR revealed a fee/commission being paid to the broker. I queried this with the finance company and they said: "its irrelevant as I didnt pay for it". I said: it is because I didnt know about it and it must be paid somehow and probably thru the interest rate charged to me. Am I right? please

[spot]

Campari, I attended a court hearing not so long ago where this secret commission business was at the core. The Judge asked the defendant what his loss was as a result of the alleged secret commission.

 

It's a pertinent question for which you need to prepare an answer as it is effectually a counterclaim and to claim anything against a party you have to define your loss which is why this Judge asked the question. In the hearing I was at as an observer the defendant had stage fright and could not answer, either because they had not prepared themselves for that question or had not thought about it arising, but you are absolutely spot-on. You pay for it through the interest charges and if you have a head for figures try and work out what your loan 'could' have cost if the charge was not added to the cost of borrowing. It's all absorbed within the lenders charge in interest rates which would be lower had they not paid this to the agent/broker.

 

There is also the issue of whether had you known about this beforehand you could have asked the agent/broker what their relationship was with this lender with regards to % commission and compared it to others he dealt with and also perhaps chosen a different product with a differrent interest rate. Your loss is not only the interest, but the manner in which the loan was sold.

 

I have seen arguments where the lenders have argued that you would not have been in a position to choose given your finances and would have taken the loan regardless of the role the agent/broker had played, but that is no excuse.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?204597-Secret-Commission-Case-Law

 

There are other case laws which may help and I'll try and find some. Good luck anyway.

[iconoclash]

Hi Spot - thanks for that quick response - I will amend my defence and let you all know how I get on

[welshperson3]

Hi campari

The link that spot posted is a good place for case law, but it is also worth looking at the

OFT GUIDELINES

Second charge lending

– OFT guidance for lenders

and brokers

3.10 Brokers should disclose at the outset the nature and extent of the

services offered to the borrower, together with any ties they may have

to lenders or other brokers. If a brokerage fee is payable this should be

made clear at the outset. The amount of the fee should be confirmed in

writing before entry into the credit agreement. All fees repayable under

section 155 of the Act should be returned promptly in accordance with

OFT guidance.

3.11 The existence of any commission or other payment payable by the

lender to the broker should be disclosed to the borrower at an early

stage, for instance before the broker engages in specific discussions

based on the prospective borrowers circumstances, so that the borrower

is aware of any potential conflict of interest. The amount of the

commission or override commission should be disclosed.

3.12 Lenders should ensure that remuneration arrangements do not provide an

undue incentive for brokers or salespersons to recommend particular

products that may not be in the borrower's best interests. Differential

commission rates or 'volume overriders' should be offered only where

this is justified in terms of the relative work involved

[welshperson3]

Hi compari

You say you are in court next week and cant say too much.

But on the above point you may be missing out on good advice,im sure you have your defence in mind and beleve it is good, but posting up certain points of it and then getting other peoples view may show flaws in your defence, and it is better to get these sorted before court.

A few points that you should look at.

1 did they send you a valid default notice?

2 have you received annual statements?

3 is this agreement CCA regulated?

You are right to assume that they are looking for information to use against you, but certain things cant be changed when they have done things wrong and you can prove it in court, also remember that they have your defence before going in to court,

There are things to keep quiet about until the courtroom, but the general points of your defence are not one of them, how you argue the points then ok a bit quiet on that for now.

Look at your default notice if it is non compliant then the court has no option but to dismiss this claim.

Wp3.

[welshperson3]

Ok just a bit of an update

 

I’m going to court Monday (only a directions hearing)

 

There re a few discrepancies that I think will need to be cleared up before the final trial and I will explain more about these after Monday,

 

 

Just for now look at the creative accounting.

 

 

This is from their court claim

 

 

The total amount required to pay the mortgage in full £13,532.84

 

This includes payable for solicitor’s costs and administration charges. £3777.50

 

The total amount outstanding under the regulated

Loan agreement secured by the mortgage is £8662.34

 

 

So the balance of the mortgage add the charges should add to amount claimed

But no it adds up to £12,439.84.so on the claim form they are claiming an extra £1093

Out of thin air.

 

 

Now I have just receved a statement of account, I think that is what they would like to call it.

 

On this statement

 

 

Total settlement figure £12,618.60

 

Amount outstanding on the loan £6,480..39

 

Costs and charges £ 2,692.50

 

 

Call me stupid if you like but why is the amount outstanding on the loan statement over 2 thousand pounds less than they are claiming at court (and I haven’t paid a penny off it) ?

 

And once again you may call me stupid, but why is my loan statement showing over one thousand pounds less in charges than they claiming at court ?

 

 

And just one final point to confuse matters even more, if I add up all my payments made, and the charges added to the account they are different to both the above,

But that is a story for after Monday.

 

wp3

Edited December 10, 2011 by welshperson3

[welshperson3]

One more confusing thing is that I have a document from blemain with a date of 2009

Which states “further to your recent communications with this office regarding the charges on the above account please find attached a breakdown of costs totalling £4,284.88”

The following line is for blemains eyes only

Go and find a copy of the letter you sent me and read the nice bit about monarch that you so kindly supplied me with.

Wp3

[welshperson3]

My last letter and phone call charge was April 2009, anyone got any newer than this ?

I believe this is the time monarch started to wind down as well I also think it relates to an OFT investigation.

It would be good for me if the OFT publish their findings before my case finishes

wp3

[welshperson3]

Hi

 

Went to court this afternoon, nice day out but the wife just doesn’t understand me I take here out and all she does is moan. Well anyway back to what happened at court.

 

Went in to the courtroom and guess who is the judge (my favourite judge) the one who set aside blemains possession order. And did he remember yes he did, and was he helpful, yes he was.

 

What the judge said after we disused how long and the complexities of the case. And in the judges exact words he says “what you need MR xxxxxx is a specialist judge and he knew one in "Cardiff Civil Justice Centre ChanceryDivision”

 

 

 

Now the case has been transferd to cardiff,and the judge wouldn’t give any directions as he felt that the cardiff judge would want to deal with it all, and give his own directions.

 

When the case was before bridgend county court I wanted to win and if I did then there is no big deal for anybody else,altho I know a lot of people would have been happy to see blemain get a bloody nose,that is all it would have been.

 

But now it has been transferd to a high court,(The Chancery Division is a part of the High Court of Justice. ) now the stakes are much higher if blemain lose then it is not just a bloody nose anymore but a serious knock down.

 

Now if I win or lose eather way this it is going to have serious implacations for everybody that is going to court with any sub prime lender.

 

Without going into detail, the points of my argument are.

 

1 the letter, phonecall, and admin charges.

 

2 the variable intrest rate that can only vairy up

 

3 buildings insurance

 

4 broker commission

 

5 unfair relationship CCA140A so meny rules and regulations broke that it would take 2 pages just to list them, but if you would like information just ask.

 

Wp3

Edited December 12, 2011 by welshperson3

[Gallahad]

I hope this proves to be a good move for you WP and of course in turn for all of us. You must be feeling a bit stuck out on a limb right now but having come so far hang on in there mate.

G

[welshperson3]

thanks G

 

Today at court was good, as I always believed that who ever won at county court level me or blemain then the losing party would have appealed.

Now if I had of lost at CC level then I would have had legal representation during the appeal.

Now over the next few days I will have to way up my options whether I get legal representation straight away.

I am entitled to legal aid so option one to look at

Option two no wins no fee representation

Option three pro bono representation

Option four is go it alone and see what happens if I lose then get help with an appeal

I would love to do option four as I feel I can beat them, but if I c**k it up then the repercussions it will have on others wont be fair.

So a day or two to think about it and any comments or suggestions would be more than welcome.

Wp3

[frettful38]

So WPS you are getting special treatment as your case has been transfered to another level......well I don't know what to say on that but as you have been allowed more time can only be a good thing hey? as you have now got more time to go over and over and over and over and over everything lol...

 

All in all not a bad day I guess

[sillygirl1]

If it were me I would seriously look at Pro Bono, you might even get lucky and get a qualified person looking to move up the ladder (happened to a friend, ended up with a very well known name just before they became a QC, this was a few years ago now).

[Guest]

wp

am thinking that it may still be heard/dealt with as a 'county court matter' despite having a 'specialist trial judge' from chancery?

Edited December 14, 2011 by Ford

[frettful38]

just some useful info for all

 

http://www.peterjepson.com/law/CivilCases08.pdf

[Guest]

have a look at the 'chancery guide' for eg

says eg if a specialist trial J is needed then it may be necessary to transfer to a county court at a chancery district registry (eg cardiff).

Edited December 14, 2011 by Ford

[determindator]

Amazing work WP you are alive and man are you kicking! So well done.

 

I really want Blemain put into the other institution forums. I will have to make some more enquiries again.

[welshperson3]

Hi ford

 

Just to explain what happened in court to bring me to the conclusion of it being a high court case,

 

But you are right it still could be county court, and I will contact the court to try and find out.

 

Firstly this claim has been allocated to multi track

 

Secondly the time estimate for the case is one to one and a half days.

Third the judge says he knows a specialist judge sitting in the chancery division at Cardiff Civil Justice Centre.

 

Fourth he transfers the case to Cardiff Civil Justice Centre for this specialist judge.

 

 

 

Now I might be wrong and I may well be but what I have assumed is that multi track are high court, cases lasting more than one day are high court,and the judge saying he knew a specialist judge (chancery) at Cardiff civil justice centre, and then transferring this case to Cardiff civil justice centre is what I have made my assumption on.

 

 

 

But ford you are right and I thank you for pointing this out.

 

And I shouldn’t make assumptions I SHOULD BE SURE

 

 

 

Wp3