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

[suffering]

My total plot represents 45% of the total area. But this is the compelling piece of the jigsaw taken from the FSA hand book i now just need the ombudsman to confirm that i was stitched up!

 

PERG 4.4.2 01/07/2005

The condition set out in PERG 4.4.1 G (1) limits the range of borrowers to whom the protections of the mortgage regulation regime apply to individuals and trustees. If a company (which is not acting as a trustee) borrows money for the purpose of funding the company's business, and the loan is secured by a mortgage over the company's property, the mortgage contract is not a regulated mortgage contract. So a lender will not carry on a regulated activity by entering into that contract, nor will the lender carry on a regulated activity if it advises on, arranges or administers that contract. However, if the lender makes a loan for business purposes to an individual sole trader, or (in England and Wales) a partnership, and the loan is secured on the borrower's house or houses, the contract will be a regulated mortgage contract. YES

[suffering]

i have been told it will take between 3--10 months for a simple decision by a Ombudsman. so if there is no decision what kind of loan agreement can be judged just because the liars Blemain say it is unregulated it doesnt mean it is are they above the law?

Edited February 27, 2013 by suffering

[jcsmum]

Very interested in this thread as my hubby has a nightmare loan with Lancashire Mortgage Corporation. It's a long and unhappy saga of a loan secured on land and is apparently "unregulated".

It was advanced in 2004 via a broker and the company have produced a declaration of income with my husbands signature on it although he has no recollection of it. The level of income stated is one that he has never achieved in his 20 odd years of trading, a fact that could easily be proved by his annual accounts had anyone looked at them The purpose of the loan was not for his business but to pay out his ex wife on their divorce.

Basically he is self employed and was advanced a loan of £35k on a term of 25 years which means that it would not end until he's 71 years old.

My husband was diagnosed with a progressive neurological disease in 2009 which caused him to look at his finances again. This was the start of rounds of letters and referrals to different organisations that has continued until the present day. Despite being a repayment loan the debt was not decreasing and it transpired that Rule of 78 was being used to calculate the amount owing. Eventually after much correspondence and solicitors letters to extract a response they agreed to use an actuarial calculation. Solicitors advice was that an Unfair Relationship exists but it would cost approx. £20k to take it to trial. Financial and health issues ruled this out as an option.

LMC have stated that the loan does not come under the rules and regulations of either the FSA or CCA so isn't covered by the FOS.

The FOS have confirmed this and suggested referral to the FSCS because the broker who sold the loan is no longer in business and insolvent.

FSCS have said they are unable to act because it is not a residential mortgage.

LMC advised me that the complaint could be referred to the Finance and Leasing Association but when I did so they answered the FLA correspondence by saying "Lancashire Mortgage Corporation is not a trading name of Blemain Finance and so not a member of the FLA".

The FLA have now said they can't do anything and suggested going to the British Banking Association and the Council of Mortgage Lenders but I don't think Lancashire mortgages are registered with either.

My hubby has now stopped trading because of his declining health and can only afford a few more payments before the account falls into arrears. (The land is up for sale but no interest yet)

I am now thoroughly confused as to who if anyone does regulate this loan and if there is any legal argument for an unfair relationship or anything else? I know it seems contrary to OFT Guidleines on Non Status Lending I have read but is there anything we can actually do about it?

[welshperson3]

I know someone in exactly the same position, in regards to LMC and unregulated, I will get him to have a look at what you have posted.

 

Unregulated is not my strong point, but if you need info on what scams this company pull then just ask,

 

Wp3

[suffering]

Hi jcsmum

Firstly the FOS can look into your complaint but they are very very slow and you will have to complain to LMC then give them up to 8 weeks to reply (they will take 7)weeks and try to dampen your complaint and blame the broker who has gone out of business ) dont get your hopes up without running this by a solicitor or getting legal advice its a bit of a mine field the consumer credit act came into force in 2004 the same year as your loan so you need to see if you are in. As i understand it the loan was not to buy the land it was used as security, and the loan was not for business purposess. Do you have anything that states the purpose of the loan Then look into this: CCA 16b

( phone the ombudsman and see if they will look into this for you or at least give you some advice )

[F116BExemption relating to businessesE+W+S+N.I.

 

(1)This Act does not regulate—

(a)a consumer credit agreement by which the creditor provides the debtor with credit exceeding £25,000, or

(b)a consumer hire agreement that requires the hirer to make payments exceeding £25,000,

if the agreement is entered into by the debtor or hirer wholly or predominantly for the purposes of a business carried on, or intended to be carried on, by him.

(2)If an agreement includes a declaration made by the debtor or hirer to the effect that the agreement is entered into by him wholly or predominantly for the purposes of a business carried on, or intended to be carried on, by him, the agreement shall be presumed to have been entered into by him wholly or predominantly for such purposes.

(3)But that presumption does not apply if, when the agreement is entered into—

(a)the creditor or owner, or

(b)any person who has acted on his behalf in connection with the entering into of the agreement,

knows, or has reasonable cause to suspect, that the agreement is not entered into by the debtor or hirer wholly or predominantly for the purposes of a business carried on, or intended to be carried on, by him.

(4)The Secretary of State may by order make provision about the form, content and signing of declarations for the purposes of subsection (2).

(5)Where an agreement has two or more creditors or owners, in subsection (3) references to the creditor or owner are references to any one or more of them.

(6)Nothing in this section affects the application of sections 140A to 140C.]

 

Good Luck! just remember LMC / Blemain want you to give up thats why they send you off on the wrong trail and give you the run around, they will only do anything that is to their own benifit, do not strike up a deal on the phone only use email or post for communication

[suffering]

Just to update this the Ombudsman fast tracked me and guess what he said, he thought it was unreasonable to to claim that LMC should or could have been aware that this was not intended to be a commercial loan.So he could not look into my complaints! (it may have been classed as semi commercial but checks would have shown it to be predominantly for personal use) OK so when two of their directors visited me and questioned me and seen i was living on site they must have been blind folded with headphones on. No checks needed just turn a blind eye to everything and make it fit to suit the situation, protecting the loan sharks not the borrower. Try doing that in Australia and they will put the lender behind bars, they realise the extent of the abuse of process by lenders taking advantage of people in a desperate situation

[beckianne]

Hi

I have recently paid my last scheduled payment for a 10k loan that i took out with blemain finance, to be told that i owe them 6.5k in charges!!!

I have been searching through your site for the procedure to try and claim some of these charges back and came across this post.

I have recently been sent out a breakdown of all the charges that they have added to my account, would it be helpful if i posted them on this site.

There was reference to a SAR form somewhere else on this site, would this be my next step?

Any help very much appreciated.

Becki

[stress]

Hi, found yous by mistake but very good reading!..

Could any one shed some light!

 

I purchased a second property for my mother and it was non regulated, she occupied it 100% for 4 years.

my lenders Solisitors instructed my mother to move out giving her a date to do so, she was told she had no rights to occupy or go to court for stay of eviction as she was not a spouse or child of mine.

 

Dispite removing my mother, it took the lender 1 year to get a decree and another three months to repossess the property.

 

I have been fighting this case for some years, lender has made some compensation, they ask for my minimum damages and coasts!.. I cant put a price on my mum and they are not accepting liability.

 

Q. If the property had a regulated mortgage would she have had any legal rights?

Edited April 22, 2013 by stress
Spelling

[Figaro123]

Do request a SAR, make sure you also receive the application form and income and affordability document you would have signed. The underwriting sheet would be useful as well.

 

I am presently in litigation with Blemain, and know I will win my case.

[Bigmac versus]

What a thread, my eyes are hurting, spent hours going through and will need to read and read again, subscribed.

 

Takes hat off to welshperson3

[wishboneash]

Well done!

 

Please keep us informed and have you started a separate thread? For now, it can be started in this forum to keep you with WP3.

 

good luck

[Figaro123]

How are you getting on with this

[welshperson3]

Hi all

 

Update

 

got rid solicitors (to egger for me to settle)

I think a settlement was financially better for my solicitors than it was for me ( I may go intomore detail at a later date)

I have since turned down offers thousands of pounds better for me than the one they wanted me to agree to.

 

Going through disclosure they are saying they don’t have all phone recordings and didn’t keep all correspondence letters, shall we say they are cherry picking what they want to disclose.

I have documents that they sent but say they never kept copies of.

 

What I would like to know is what exact rules or regulations they are or have been breaking by not keeping accurate records.

 

Have plenty of good info but solicitors wouldn’t let me postit up,

I’m sure you understand but some things have to be kept quiet until after trial.

 

Wp3

[searching70]

Hi wps....here is some info off the ICO..

 

http://www.ico.org.uk/for_organisations/sector_guides/~/media/documents/library/Data_Protection/Detailed_specialist_guides/default_tgn_version_v3%20%20doc.ashx

 

Accuracy of a lender’s default records

 

 

Any default record should be accurate. We normally expect a lender to keep records that are necessary to show an agreement exists and to support filing a default. We would also expect a lender to be able to produce evidence to justify a default record they had placed on a credit reference file. Not having any supporting records may indicate a breach of the data protection principle requiring personal data to be adequate, relevant and not excessive for the purpose for which it is processed. A

record that a notice of an intention to file a default was sent, if not a copy of the notice itself, will help lenders to comply with this requirement.

 

 

Factors to be taken into account in enforcement

 

Any decisions on enforcement action will be taken in accordance with our Regulatory Action Strategy. When we consider enforcement action in cases where there is inconclusive evidence of whether a default did or did not occur, or the amount of a default, we must make a judgement on whether we consider that the Information Tribunal would support a view that a default record filed with an agency is incorrect or misleading. To reach a judgement we will consider, among other factors:



any evidence that exists, even if it is inconclusive;



the credibility of the data subject;



the credibility of the lender;



the reliability of the lender’s internal procedures;



the existence of other similar complaints about the lender; and



the use which the customer, or lender has made of other mechanisms

to determine the accuracy of the record, for instance the courts or a

relevant ombudsman scheme.

 

Credit reference agencies potentially have a defence against action through the courts by individuals who successfully challenge the accuracy of data received from a lender. However, this defence is only available if the agency takes reasonable steps to make sure the data is accurate and, as soon as they become aware of the challenge, takes steps to mark the file accordingly

 

. Records where the accuracy is challenged can be marked as ‘under query’. This marker alone is unlikely to be sufficient to provide protection against claims, including

those for compensation. Agencies should therefore ask the lender to substantiate the disputed information within a reasonable time frame, foR example, 28 days, and, if the lender is unable to substantiate the disputed information in that time, should suppress the information from the file.

[suffering]

I have just finished re-reading this thread, trying to educate myself, as things are coming to a head with me and Lancashire Mortgage Corporation.I have a final chance to issue a counter claim, which will be 1.unfair relationship 140a b & c CCa 1974 2. Fraudulent misrepresentation act 1967 but after reaing this, i am considering adding unfair terms in the contract. Does anyone have any specific information about the unfair terms in blemains contract as i believe they exist, some are brushed over in this thread but can anyone elaborate a little more.

[groovycaz]

Blemain Finance Limited

In October 2006,

we obtained an undertaking from Blemain Finance Limited under the Unfair Terms in Consumer Contracts Regulations 1999.

 

The undertaking related to how the firm calculated the level of its early repayment charge (ERC).

 

In September 2010 the undertaking was withdrawn from our website to reflect our updated view

that the ERC levied by the firm formed part of the price the borrower pays

in exchange for the service of being provided with a mortgage which operates at a fixed/discounted rate of interest for a period of time.

 

Our updated view is that it is unlikely that the level of such charges can be assessed for fairness under the Unfair Terms in Consumer Contracts Regulations 1999

 

 

Taken from the Financial Conducts Authority Website

[welshperson3]

Blemain Finance Limited

In October 2006, we obtained an undertaking from Blemain Finance Limited under the Unfair Terms in Consumer Contracts Regulations 1999. The undertaking related to how the firm calculated the level of its early repayment charge (ERC). In September 2010 the undertaking was withdrawn from our website to reflect our updated view that the ERC levied by the firm formed part of the price the borrower pays in exchange for the service of being provided with a mortgage which operates at a fixed/discounted rate of interest for a period of time. Our updated view is that it is unlikely that the level of such charges can be assessed for fairness under the Unfair Terms in Consumer Contracts Regulations 1999

 

 

Taken from the Financial Conducts Authority Website

 

This has nothing to do with unfair phone call charges unfair interest rate, unfair letter charges unfair interest rate unfair buildings insurance or any other unfair charges blemain add to everyone’s account.

 

This is what blemain used to charge people when they wanted to pay off their agreement’searly (ERC) early repayment charge as blemain haven’t been charging this since 2006 then I think this post is slightly misleading.

[dx100uk]

that's about the worth of their usefulness here too

[groovycaz]

Yes I understand that. This is just another way this company make you part with your hard earned money and they have many more. I was stung big time with early redemption charges. ....The Co have been fined I might have another try to recover what they should not have charged me to release me from their clutches

[groovycaz]

Unfortunately I redeemed in 2003 but maybe it's still worth a chance...I'll follow your story and wish you luck

[iconoclash]

Hi - excuse me but are the FCA saying that they no longer support the idea that ERC's are subject to the test of fairness?

 

I am thinking that an ERC coupled with a MIG is belt and braces and a company that 'employs' both

and then sells the product 12 weeks later is really taking the ****, as in my case.

 

A MIG is a higher lending fee in another cloak in my own opinion, and if both of these are supposed to be to protect losses for the lender in some way,

can we ask the companies involved to show the figures and prove what they assert?

 

Take that along with their abuse in the libor rates plus additional charges and they really are just printing money.

 

I am still struggling to get any acknowledge from GMAC/Paratus on these matters and they just give me the usual guff about what they are allowed to do - e.g. get away with in this country.

[Sick Of Legal Bullies]

I have recently had court dealings with LMC and the judge totally dismissed all their claim and threw the claim out of court-the reason was because of there underhanded and manipulated way that they tried to steer proceedings-they used bully tacticts and basically thought they were above the law-by 'removing the Acknowledgement of service' from the claim pack-sending a representative to my house asking why i had not returned the forms-and general nasty bully boy tacticts-the judge made them remove all court charges from my account and pay me £350 in compensation-stand up to them they are not as bright as they think they are. (And that's pretty dim)

 

Also if anyone needs a solicitor to act for them with this underhanded shower-at reasonable costs please let me know-I can recommended an excellent company who are more than happy to oblige with this underhanded lot. Please inbox me if needed.

[beckianne]

im still fighting with blemain and today they have told me that they intend taking me to court.

did you win your case?

[Clueless76]

Wish I knew the outcome of this too?

[suffering]

if you're talking about wp he was made an offer and settled out of court