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    • Hi as this appears to be about a Parking Charge from a PPC,   I have moved your thread to the Private Land parking Forum, where you should get advice targeted to the situation   could you give some history about what the Invoice was for  and who the parking Contractor is  Did you appeal the charge, and it looks like you have had letters from the dreaded useless Gladstones demanding payment  Could you give the information asked for on this sticky and also post the  letter from gladstones to see if it is a Letter Before Claim/Action?    
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Halifax71

FAO anyone with a Firstplus secured loan.

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This post is relevant to all customers who have a secured loan with Barclays Firstplus. I know secured loans are a dirty word but a lot of people have them rightly or wrongly.

 

Last month, a customer of Firstplus has had a judge rule that the interest rate variation clause within their agreement was unfair, citing 5(1) of the Unfair Terms in Consumer Contract Regulations. Specifically this states

 

Unfair Terms

 

 

 

5. (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

The judge ruled that the contract could continue but the right the vary the interest rate was removed, reverting the loan to a fixed rate as at inception. As it stands Barclays have not appealed the decision, and as this decision has been made in a lower court it is not precedent setting. Is it cynical to opine this is why no appeal has been forthcoming?????

 

A group of us have been battling the regulators for years arguing this very point, i.e. that the right to vary has been misused and is fundamentally unfair.

 

The OFT presumably found fault back in 2010 as they issued a CCA section 33a reprimand, however legally they have no retrospective impact, and amazingly the OFT wont tell customers what exactly the reprimand was for, and I quote, "because it would harm the commercial interests of Barclays if they did". Long story, not going there with that one.

 

What customers need to do now is ask Firstplus and the regulators what they intend to do about this legal ruling. The clause has now been ruled unfair. There are over 50,000 customers with the exact same clause. ALL are paying more than they were at inception.

 

An example of the potential financial impact. My APR started at 8.4%, it is now 9.2%. A retrospective realignment to a fixed rate of 8.4% would reduce my liability by £8,000.

 

I have drafted a note below if anyone needs to cut and paste, but whether you use this, or draft your own, it is in your own interest to challenge the ongoing profiteering.

 

The FOS, the OFT and the FCA have all received a copy of the court judgement, however as it stands none will commit to doing anything about it.

 

Something like this should do.

 

Please send to:

Firstplus - customercare@firstplus.co.uk

THE FINANCIAL OMBUDSMAN SERVICE, complaint.info@financial-ombudsman.org.uk

THE OFFICE OF FAIR TRADING, enquiries@oft.gsi.gov.uk

THE FINANCIAL CONDUCT AUTHORITY. consumer.queries@fca.org.uk

 

--------------------------

THIS NOTE IS SENT TO FIRSTPLUS, THE FINANCIAL OMBUDSMAN SERVICE, THE OFFICE OF FAIR TRADING, & THE FINANCIAL CONDUCT AUTHORITY

 

I am writing as a dissatisfied First Plus customer. For some years now, many customers have been complaining that the interest rate variation clause(s) in First Plus secured loan agreements is unfair. The result being that all customers, including myself, are being forced to repay significantly more than could reasonably be expected when the use of their widely drawn interest rate clause is applied in an imbalanced and unfair manner.

 

Last month, a fellow First Plus customer had a court rule that their interest rate variation clause is unfair under 5(1) of the Unfair Terms in Consumer Contract Regulations. The variation clause in question is the same clause as the one in the majority of First Plus customers agreements - namely clause 7. The key wording that is significant is as follows:

 

"We may from time to time vary our interest rate. We may increase or decrease our interest rate to reflect a change which has occurred, or which we reasonably expect to occur in interest rates generally or to ensure that our business is carried on prudently, efficiently and competitively"

 

[DELETE THIS NEXT BIT IF NOT RELEVANT TO YOU

There is a variation of this clause that includes a reference to FHBR:

 

"The interest rate on your account will not in any twelve month period, vary by more than twice the variation in the Finance House Base Rate published by the Finance and Leasing Association during the same period. If for any reason, the Finance and Leasing Association ceases to publish the Finance House Base Rate we may refer the variation in our interest rates to any other Base Rate which in our reasonable opinion best matches that rate." ]

 

The key elements of the clause are detailed as above and the declaration that the wording is unfair should apply to all customers, including me.

 

I understand a copy of the court judgement has already been sent to you. As you will have seen the judge has ruled that the contract can continue. The understanding is that the declaration of the clause being unfair would strike the clause from the contract thus disabling the ability of the lender to vary the rate with the loan reverting to the incepted APR and the loan being restructured and reset accordingly.

 

Can Firstplus please advise whether or not it is your intention to retrospectively revert my loan to the inception rate APR and apply it as a fixed rate going forward?

 

Can the OFT, FCA and FOS please advise me what action it intends to take against Firstplus, as I continue to suffer financially from the penal nature of the application by First Plus of their interest variation clause, which I now note to be legally unfair.

 

I would respectfully ask that you provide a response to myself within 10 working days.

 

Regards

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Great info Halifax71. Do you have any info on names, court case number or a transcript?

 

This could be useful against other lenders too. :-)


 

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:p

 

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The case info is private to protect the individual. It should be sufficient to just refer to it as it has been sent to all. The FCA have even replied, but just said they don't take on individual issues but they have referred to the relevant team for their information.

 

If they deny seeing it customers can refer them to the copy sent on the 20th Nov at 11:12 am titled "FIRST PLUS - NOTICE FROM THE FIRST PLUS COMPLAINTS GROUP" EDIT - see below.

 

You're right with regards to other lenders as no doubt they have similar ambiguous variation terms. This is just the tip of the iceberg.

 

At this point in time we're just trying to get as many customers to register complaints in an attempt to highlight customer dissatisfaction. That said they know it effects 50,000+ customers who all have the same clause.

 

------

 

Edit - this is the FCA reply including their reference number. Looks like it was drafted by the office junior (not be unable to??????).

 

We're still waiting for the OFT one (the OFT still have responsibility until April)

 

Our Ref: PC42415.ISS10907110

 

Dear *******Thank you for your email received on 20 November 2013.

 

I understand that you are writing to the Financial Conduct Authority (FCA) regarding the complaints you have against the firm Firstplus. I note that this is also on behalf of a consumer group, Firstplus Complaints, that you are a member of.

 

As the regulator of financial firms in the UK, we always welcome information forwarded to us from consumers that can help us in achieving our objectives, one of which is "to secure an appropriate degree of protection for consumers ". Therefore, I have passed on the information you have provided to the relevant supervision team of the firm for their consideration. Please be advised that we will not be unable to provide you with feedback regarding the information you have given as we are restricted to confidentiality by the Financial Services and Markets Act (FSMA).

 

Please note that although we can investigate this information from a regulatory perspective, the role of investigating individual complaints against the firms we regulate falls to the Financial Ombudsman Service (FOS). If Firstplus have already investigated this complaint and you remain unsatisfied with their final response, you can then contact the FOS for their consideration. I have included the contact details for the FOS below.www.financial-ombudsman.org.uk/You may also be aware that if you are not satisfied with the FOS's decision, you have the further option of taking independent legal advice on pursuing your complaint through the courts. If you would like to find out more information about the FCA, I attach a link to our website below:www.fca.org.uk

 

I thank you once again for bringing this to our attention.

 

Yours sincerely************ (Ms)

Customer Contact Centre

Financial Conduct Authority

Consumer Helpline: 0800 111 6768

www.fca.org.uk/consumers

Edited by Halifax71

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Unfortunately without a case reference or transcript it may be of little or no use to other individuals affected by unfair increases.

 

Eg I know of someone due to be repossessed next week who has been affected by another lender. If he could use this in an application to stop it, it might sway the judge to stop the eviction.

 

I can understand the wish for privacy so could a transcript be posted removing identifying information?


 

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Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

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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Not mine to give, and understandably the person concerned insists on anonymity.

 

I've posted the FCA's reply, with their reference number.

 

I would hope that that would be sufficient. It's all that can be made public anyhow.

 

Re the repossession, maybe a comparison of their variation clause with the Firstplus one, if similarly ambiguous then surely a stay would be granted pending the regulatory process. If not then ensuring the judge who is hearing the case rules that the other lenders clause is fair before the bank can enforce their rights under contract - as per ECJ Pannon.

  • Haha 1

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Thanks Halifax, this will be heart lifting for many on these Variable rates which never go down. Swift Advances loans being one and GE another.

 

Good work and thank you.

 

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Not mine to give, and understandably the person concerned insists on anonymity.

 

I've posted the FCA's reply, with their reference number.

 

I would hope that that would be sufficient. It's all that can be made public anyhow.

 

Re the repossession, maybe a comparison of their variation clause with the Firstplus one, if similarly ambiguous then surely a stay would be granted pending the regulatory process. If not then ensuring the judge who is hearing the case rules that the other lenders clause is fair before the bank can enforce their rights under contract - as per ECJ Pannon.

 

Thanks. :)


 

What's Best for You?

 

 

The Consumer Action Group is a free help site.

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

 

Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

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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RE the email sent to me from the site team - I can't reply, it says I don't have the necessary permissions :)

 

Anyhow, I'll ask the question you've asked.

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FOS acknowledgements are stating 6 weeks for a response. That's fair enough I suppose.

 

Then again, the FOS are pretty much useless in this regard unless the OFT / FCA actually do something.

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Here you go :)

 

I have seen that date typo on other judgments.. instead of 2006 (20106) I wonder why that is ?

 

PS.. I have deleted the to and fro regarding private messaging in order to keep thread tidy and on track.


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According to the attached cases the court (upon finding a possible unfair term) should raise its own motion to assess the fairness of such a term.

 

perhaps that could help your friend caro.


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RDM, keep trying to get repo cases to use Pannon. Even before this ruling against BFP, I couldn't see how any judge would rule the term fair. And from conversations with others with other lenders, the majority of secured loans have similarly ambiguous variation terms which have resulted in all base rate increases being applied whilst they've treated base rate decreases as a brucie bonus to pay for their PPI liability.

 

I honestly believe this interest rate issue on secured loans is the next big one to hit the banks.

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Had to create a new profile but anyhow back on CAG - yep Halifax is right.

 

We have gone through 5 years of torture to get to where we are today.

We have been on the Politics Show, Money Box, done written media and EVERY compliance expert says "you have a valid case"

- however, funding that case has been the issue, they all advice that it could run into 10s of £000s.

That said, there does appear to be a sea change - overdraft charges, LIBOR rigging, interest hedging products, PPI

to name but 4 have shown the lengths banks have gone to in order to maximise their earning potential at the expense of the consumer

and by doing so, breach regulation and law.

 

The irony we have with this recent judgement is that this is exactly the point

we presented to BFP in the first place as being unfair re UTCCR 5 (1).

"We have done nothing wrong",

"your house price has fallen we cannot move your rate",

" we dont just use BBR, we use other rates like LIBOR (yes they said that)",

"our funding costs have actually increased since 2009 you are lucky your APR has not gone up",

"we have to run our business prudently, efficiently and competitively"

 

- oh really - you missold PPI massively,

your loans were a means to an end to sell a worthless PPI product that was 40% of your income,

your own funding with Barclays is linked to BBR so since 2008,

you have had the benefit of a £500m fall in interest cost a

nd NOT PASSED ONE PENNY ONTO CUSTOMERS.

 

We really are at the point now where, thankfully, a judge has seen through it all and said the clause is unfair.

The resolution meant that the removal of the variation clause from the contract would revert the loan back to its incepted APR

- common sense makes me think it is a logical resolution

- it could have been far far worse for Barclays and maybe a skilled lawyer would have been able to influence that but that is not what this is about really.

 

It was about, for our own sakes, knowing and believing we were right and being proven so in court.

Personally, they now have a letter and a bill for £15k from me,

requesting my loan be reverted to its incepted APR (started 9.4% now 12.1%, over £100 per month in payment change).

 

Whilst BBR remains low, this is not the disaster it could have been for BFP and they could save a lot of face by applying it across the board

- yeah it will lose them some more money but the risk of a £2bn loan book being declared unenforceable would be far worse.

 

The removal of the variation clause would make ALL loans fixed rate,

so consumers would be protected for the future and as their loan book is diminishing,

there will be a fair chance of many remortgaging or moving away (as they sell their houses) prior to serious increases in BBR.

 

Their commercial situation is one for them and their shareholders to deal with as it is their mess not ours

and they have already had US pay £500m to their bailout and now that they could squeeze no more out of us Barcalys put £342m in last year

- something they should have done in the first place.

 

Anyone with a First Plus loan wanting any level of background or assistance just needs to shout.

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We have a "secured" loan with FP

however we sold our property in Feb 2006

and paid the majority of it leaving about £5700 outstanding.

 

We have been paying £70 per month ever since as FP insist on it running the full term

and if we pay extra after a few months they send us a cheque for the difference.

 

As of today we have paid back £6370,

but we still owe about £5000 as the full term has still almost 6 years to run.

 

Our interest rate went up from about 8.5% to nearly 11%.

This is one debt we would love to be able to get rid of as we feel the interest rate is unfair

plus the fact they will not allow us to pay extra on top of the monthly amount.

 

We are on Pension Credit at the moment so the £70 a month payment does not help.

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Their ts and cs always used to allow 10% of the balance to be paid off each year as additional capital repayments - however, what they agreed with you as part of the shortfall settlement when you sold the property I do not know. Without confusing issues and bringing other contractual elements into this, just be clear about what we are saying and what we feel you should be approaching them to do.

 

1 the court ruling in the case in question, deemed the clause that controls the ability to "vary" the APR to be widely read and unfair.

2 in such a case, the reality is to disallow the clause from the contract thus removing any ability for the lender to vary the APR

3 as the rate at inception was deemed to be acceptable, as you contracted to it, then that has been promoted as the rate the contract revert to

4 we would be encouraging people to look at whether this position benefits them - if you are paying a higher APR than inception then it likely would as I cannot see anything happening going forward for APRs to reduce as we are at the bottom of the interest rate cycle, they are only going one way.....

5 ask them to remove the clause as per the court ruling, revert your loan to its initial APR and calculate the overpayments you have made since then and refund those monies to you.

 

YOU CANNOT COMPLAIN ABOUT YOUR ACTUAL APR, YOU CANNOT COMPLAIN ABOUT THE INTEREST RATE. YOUR COMPLAINT IS ABOUT THE CLAUSE THAT ALLOWS THEM TO VARY THE INTEREST RATE / APR ON YOUR CONTRACT. DONT GET THE 2 MIXED UP.

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Just received a call from the FCA - they confirm that until April 14 they have no responsibility for secured loans so we need to liaise direct with the OFT.

 

Thumbs up for the FCA for at least letting me know - well I knew that anyway but at least some communication.

 

Still nothing from the OFT.

 

As I said above the FOS said it'll be 6 weeks before they respond.

 

I would expect everyone else to get a similar response.

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Oh and now a reply from Firstplus - they won't deal with it by email. So, called them, asked them to reduce my rate as clause 7 has been found to be legally unfair, they are now sending a written reply.

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Well done Halifax, don't hold your breath waiting for something positive from the OFT - been there and got the T shirt I regret to say.

 

Matter of interest (no pun intended) is it only via a court that we can find an Unfair Term for these so called Variable rate interest issues?

 

We have similar terms included in another sub-prime finance company backed by Barclays too as it happens, and I'd like to know the procedure for establishing exactly how this UTCC is established.

 

This Firstplus one sets the ball rolling, but the way this Company work it'll be like water off a ducks back to them if we wrote telling them - they need it full-on so to speak with a whole lot of clout behind it before they'll even look at it, so if it is only via a court then we'll have to drop it into the next persons defence I quess and try using this Firstplus detail as a guide for the Judge.

 

Thanks for keeping this live for us..gives us hope not all is lost as these companies like us to believe.

 

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Hi Andrew, agree about the OFT, in my opinion they have shown clear bias towards Firstplus over the past few years. I'd even go as far as being complicit in covering up Firstplus activities. Their stance on withholding the reasons for the 2010 reprimand is nothing short of appalling. Hopefully i'll have information on that in the coming weeks / months.

 

As for this, it is my understanding that only a court can find a contract term unfair. That said, I would expect the regulator to take this on following the court ruling, not only on behalf of the 50,000+ Firstplus customers who have EXACTLY the same clause, which has been used in EXACTLY the same manner, but on behalf of other secured loan customers who have similar unfair terms. They can take the issue to court.

 

One of the main stumbling blocks I think will be cost. Can the banks afford this? A conservative estimate would be a £500m cost to Firstplus. Not up front, but a mixture of refund / reduction in loan book value. It could be more like £1billion. That is just Firstplus.

 

I think we need to give it a few weeks and see what the OFT / FCA come back with. Only then will we know whether the regulators are actually prepared to do their job.

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Would the OFT respond to a Freedom of Information request regarding the decision?

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I'd even go as far as being complicit in covering up Firstplus activities.

 

Ha,ha, I went as far as accusing them of 'Aiding and Abetting' Swift in not taking them to task over trading with an unlicenced trading name totally contrary to the CCA which made it a criminal offence and the OFT, having reminded them back in 2007 this was happening, did absolutely nothing to take issue with this.

 

The A & A accusation led to a response from the OFT General Council legal heavies who tried their best to wriggle out of liability, they still did nothing and these people are there to represent us and regulate these wide-boy outfits. A criminal offence is a criminal offence and if I commit a criminal offence I get clobbered, these people seem to get away with it with impunity watched and assisted by the OFT - the most useless bunch of time-wasters I ever came across.

 

I'll drop them a line again and remind them of Swift's activities and mention comparisons with this Firstplus issue - it all helps, not that it seems to make any difference, but one day someone in there may take ownership of the problem and actually do something.

 

A1


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The 2010 reprimand decision do you mean?

 

If so, no. I had the ICO decide on that at the same time as pursuing under section 241a of the Enterprise Act. I'll post the FoIA rejection reasons below in a minute.

 

-------------

 

As you are aware, I have now received the OFT’s response to my query as to whether all of the information you requested is covered by section 238 of the Enterprise Act 2002 or whether some of the information is covered solely by section 31 of the Freedom of Information Act 2000.

 

That response, which is from the OFT’s General Counsel, clarifies the point by informing me that some of the withheld information consists entirely of “specified information” and the remainder, while covered by section 31 of FOIA, also contains, discusses and refers to “specified information”. Therefore, the information covered by sections 31 and 44 of FOIA is very closely interwoven.

 

As you will be aware, specified information is defined in section 238(1) of the Enterprise Act 2002 as information which comes to a public authority in connection with its exercise of certain functions. The OFT has stated, in earlier correspondence, that the withheld information came to it in connection with its functions under the Consumer Credit Act.

 

Section 44(1) of FOIA provides a statutory bar against the release of information if such release is prohibited by or under any enactment. In this case, that enactment is section 237 of the Enterprise Act 2002, which prohibits the disclosure of specified information other than in certain circumstances. The exemption under section 44(1) of FOIA is absolute.

 

Given that all of the withheld information either consists entirely of, or contains, specified information, the Commissioner would consider that it is completely covered by section 44(1) of the FOIA. As this is an absolute statutory bar, unfortunately the Commissioner cannot assist you further in obtaining the withheld information. He has no jurisdiction to assess the merits of a public authority’s application and interpretation of any legislation other than that which he regulates.

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One of the main stumbling blocks I think will be cost. Can the banks afford this? A conservative estimate would be a £500m cost to Firstplus. Not up front, but a mixture of refund / reduction in loan book value. It could be more like £1billion. That is just Firstplus.

 

 

Oh come on Halifax1.

 

1. They've had the money.

 

2. The loan book value is artificially inflated due to these unfair terms. Auditors/regulators should look at that.

 

3. They've had the money.

 

4. How much is likely to be paid for the banksters bonuses? This could be diverted to refunds.

 

5. They've had the money.

 

6. Shareholders have had a profit due to these unfair terms. They could take a cut or (this could be controversial) pay back profits from unlawful income.

 

7. They've had the money.

 

8. Experience of other dubious activities generally shows us that people are likely to have to take action to get refunds so in reality they're not likely to refund it all.

 

And finally ...

 

9. They've had the money.


 

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No, the reprimand for Swift (if that's what you mean) came as a result of a group of us hammering the OFT over all kinds of charging practices linked also to Swift 1st, their 1st mtg 'sister company'.

 

They put a Determination on Swift Advances (2nd Charges) CCA licence, but that was a slapped wrist exercise to ensure they charged fees correctly and improved their communication skills with regards to statements.

 

In 2010 they imported onto their licence all the trading styles they should have had, one of which was 'Swift Advances' which is shown on their headed notepaper as a trading style of Swift Advances plc. - Nothing of the sort because Swift Advances belonged to Swift Finance (UK)Ltd until 2009 when that company went into liquidation. The name was not available until 2010 once the liquidation was completed so everything they had done before that with regulated loans especially was done under an unlicenced trading style and that was a criminal offence in accordance with the CCA. All their headed notepaper was in the name of 'Swift Advances' not plc, but it stated along the bottom "Swift Advances is a trading style of Swift Advances plc" and it wasn't licneced to be.

 

They could have applied to the OFT for a Validation Order to have it okay'd but didn't so they operated whilst committing a criminal offence and nobody can benefit from the proceeds of a crime.

 

The simplicity of the crime itself doesn't sound much, but when Swift enter bundles into court whilst repossessing homes they supply so called 'copies' which are stamped over with Swift Advances plc fooling the court into believing their default notices, for example, are properly submitted when they are not in their original format sent to the account holders.

 

I'm digressing from the thread subject here so I'll say no more, but these feckers got away with blue murder under the eye's of the regulators and that is not what they are paid to do up there in the OFT.

 

A1


Cabot and the Cabot Fan Club Threads:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/73598-dealing-cabot-101-cabot.html

 

Legal Actions Explained for Businesses:

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/20492-legal-actions-explained-company.html

 

Payplan CCCS Advice:

http://consumeractiongroup.co.uk/forum/getting-out-debt/128587-info-cccs-payplan-experiences.html?highlight=Payplan

 

How to use the Forum

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

A click on the scales below is appreciated if my posts were helpful

Do not regard my postings or suggestions as professional advice. If in doubt seek a professional opinion.

 

PLEASE DONATE IF SUCCESSFUL - Every little helps :)

 

PLEASE, Do not Private Message me with basic questions, start your own thread and PM a link if you wish, but I will not be able to respond to all individual questions as I am very busy on numerous other things and anyway, others cannot learn from PM's. It also stifles contributions from the vast talent base this site offers from it's contributors and I'm not all that clever really! :D Thank you.

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Ah right, remember seeing the Swift reprimand as well. As you say maybe move that discussion elsewhere as it's off topic.

 

We'll get there in the end.

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