impending reposession Blemain..

[sillygirl1]

Contact the court with the latest date and ask for that to be dismissed, as clearly the solicitors have no idea what they are doing and are abusing the process (they may contest that point but I would still push it).

 

You could ask the court to allow Belmain 28 days to come up with the information you need via the CPR route, and put them to strict proof of their claim.... that might put the ball back in your court rather than them trying to keep playing dead balls.

[marvin1]

thanks for that, so let me get this right before i write ...

i write to the court and ask for the hearing to be dismissed telling them that as to date blemain have not supplied strict proof of their claim and they have not said they are prepared to defend the charges in court with proof that each and every charge applied did not involve any profit for them. or is there another reason i need to tell them i want it dismissed.

and excuse my ignorance...what is the 'CPR route' ?

Edited January 19, 2014 by marvin1

[slick132]

Hi Marvin,

 

Can you please confirm exactly what the sol'rs letter says about "proceedings have been commenced in respect of the property and will be heard in court on 12th February."

 

[marvin1]

exact wording is

'take notice that possession proceedings have been commenced in respect of the above property.

the claimant is blemain finance limited

the defendants are (ourselves)

the hearing shall take place at the ipswich county court on 12th February 2014'

[slick132]

Hi Marvin,

 

Re post #50 above, you say you had a letter from the court confirm the hearing had been adjourned. Did that letter specify a new hearing date.

 

In any event, please also confirm what the court's letter said.

 

[marvin1]

thanks slick132, the letter just stated that the hearing was adjourned and a new hearing was set for 12th February, i am just wondering who to contact in the first instance, i am still awaiting something from the FOS as they have written to both blemain and their solicitors stating that i was disputing the charges etc.

[welshperson3]

exact wording is

'take notice that possession proceedings have been commenced in respect of the above property.

the claimant is blemain finance limited

the defendants are (ourselves)

the hearing shall take place at the ipswich county court on 12th February 2014'

 

Hi Marvin

 

I will try and explain a few points about what is going to happen and why it happens (in laymens terms)

 

 

 

If someone takes someone else to court, then the person making the claim has to prove what they are claiming, if the second person disputes what is claimed (puts in a defence) blemain rely on the fact that 90% of people don’t know what to do and blemain end up getting what they want, (suspended possetion order and then full possession)

 

 

 

Hopefully now you understand that blemain have to prove that you owe them money, (and as you say you have paid £100 more than was required to pay off this agreement then blemain are going to have to prove all the unfair charges.

 

 

 

It will go likethis in court

 

Blemain will say, we have brought this case for possession because Mr Marvin owes us £xxxx and hasn’t paid us.

 

Mr Marvin says, on the front of my loan agreement it says total amount to pay off this loan is £xxxx and my statements of account show that I have paid more than is required to pay off this agreement. So I dispute what blemain say I owe them.

 

Blemain will say, term xx of the loan agreement allows us to add charges to the account.

 

Mr Marvin says, the consumer credit act and the unfair terms in consumer credit regulations say it is unfair and not allowed to add penalty charges to a regulated loan agreement. And he disputes that he owes these charges. Mr Marvin then asks the judge to put blemain to strict proof of what they are claiming from him.

 

The judge will then say that as this hearing is only listed for 15 minutes then he will set this case down for a trial (another date )

 

 

 

If this goes to a full trial what blemain will have to prove

 

 

 

1 that it cost them £35 to phone Mr Marvin

 

2 that it cost them £35 to send a letter to Mr Marvin

 

3 that all charges added to this account are what it cost them (insurance, monthly arrears,ETC ETC)

 

3 And the interest Mr Marvin paid is also unfair because it tracks the bank of Scotland when it goes up but it doesn’t track it if it goes down (UNFAIR)

 

 

 

Blemain made over 6 million pounds in one year from unfair charges (look at the accounts of monarch recoveries) it’s not permitted to profit from debt collecting on a regulated agreement (all charges added to someones account should only cover what it cost blemain)

 

 

 

Some reading tohelp you understand what the above is all about

 

Unfair terms in consumer contracts regulations 1999

 

Definition of Unfair

 

Regulation 5(1)[n 3] defines the principle of unfair:

 

• If a contractual term has not been individually negotiated[n 4] and
  
• the term causes significant imbalance in the parties rights and obligations, then
  
• the term is contrary to the requirement of good faith.
  

"Has not been individually negotiated" encompasses terms ofwhich the consumer has not had the opportunity to mould. Terms that have beenindividually negotiated are outside this regulation, while other contract termsmay be within the regulation.[n 5]

 

"Causes significant imbalance". For a term to be deemedunfair, this requires the term to be to the detriment of the consumer and benefit the seller or supplier to anexcessive degree.

 

"Contrary to good faith".

 

 

 

Schedule 2 sets out an indicative, non-exhaustive list of terms thatwould be unfair.

 

Effect of Unfair Term

 

Regulation 8 provides that an unfair term "shall not be binding upon theconsumer".

 

The 'contra proferentem' rule

 

The 'contra proferentem' rule is that where there is any ambiguity inregards to a clause it is to be interpreted against the party which insisted onincluding it. Regulation 7 states this very clearly:[3]

 

"(1) Aseller or supplier shall ensure that any written term of a contract isexpressed in plain, intelligible language.

 

(2) If thereis doubt about the meaning of a written term, the interpretation which is mostfavourable to the consumer shall prevail but this rule shall not apply inproceedings brought under regulation 12."

 

SCHEDULE 2 INDICATIVE ANDNON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE REGARDED AS UNFAIR

 

(e) requiring any consumer who fails to fulfil hisobligation to pay a disproportionately high sum in compensation

 

 

(h )automatically extending a contract of fixedduration where the consumer does not indicate otherwise, when the deadlinefixed for the consumer to express his desire not to extend the contract isunreasonably early

 

 

 

(I) irrevocably binding the consumer to terms withwhich he had no real opportunity of becoming acquainted before the conclusionof the contract

 

 

 

(m )giving the seller or supplier the right todetermine whether the goods or services supplied are in conformity with thecontract, or giving him the exclusive right to interpret any term of the contract

 

 

(n)limiting the seller’s or supplier’s obligationto respect commitments undertaken by his agents or making his commitmentssubject to compliance with a particular formality;

[marvin1]

WOW, ...that sounds fantastic, just been looking at the last letter from the court again and it actually says that the hearing should last for 5 mins. i thought there had just been a typo but perhaps not ?

so do i leave it now until i either hear something from blemain or solicitors and just turn up on the day armed with these invaluable facts, or should i write to them stating my intentions.

thankyou so much welshperson, now off to work feeling a bit easier.

have a good day

 

Marvin

[welshperson3]

Hi Marvin

 

Do you have the following documents?

 

1 copy of your loan agreement and the terms and conditions.

 

2 up to date statements of account (showing all payments and charges)

 

3 copy of the default notice blemain sent you.

 

 

 

If you don’t have the above documents then send blemain a CCA section 77/78 request (there are template letters online youcan use one of them) use recorded delivery and a £1 postal order.

 

 

 

As for what to do next then yes you will be sending blemain and the court a letter (I will send youa PM) blemain will also be contacting you, usually a week before the court date trying to get you to agree to what they want.

[marvin1]

again, thankyou very much..will check for message tomorrow, yes i have all of what you mentioned ....

[suffering]

well done WP3 for such valuable information hopefully 100's of people will use it

[slick132]

Hi Marvin,

 

Just to add to WP3's useful and supportive posts, your case is all about the penalty charges really and not about enforceability.

 

Looking back at posts #21 to #23, did you send Blemain or the sol'rs a list of penalty charges on a spreadsheet asking for them to be refunded.

 

If so, was any reply received about this specific point.

 

[rdm2006]

Sorry if this has already been given to you not read the whole thing yet - but this may help you

 

It is a final notice (Fine) from the FSA to D B Mortgages - One of the items was unfair charges - See page 4, paragraph 2.6, Item (3)

 

So it is also against MCOBs rules

[welshperson3]

again, thankyou very much..will check for message tomorrow, yes i have all of what you mentioned ....

 

I tried to PM you but it says yon are not receivingPMs

[welshperson3]

Sorry if this has already been given to you not read the whole thing yet - but this may help you

 

It is a final notice (Fine) from the FSA to D B Mortgages - One of the items was unfair charges - See page 4, paragraph 2.6, Item (3)

 

So it is also against MCOBs rules

 

Just be careful trying to use MCOB and make sure they cover the type of loan you have, they mostly apply to first charge mortgages,

[Sick Of Legal Bullies]

Good Luck with it all.

[marvin1]

Hiwelshperson3, re. the letter template you mentioned. for some reason i cant send pm's. says my folders are full but have nothing in them. just need to know what to state to them next. want to try and get things as right as i can. i had another short notification from the courts which says the hearing on 12th Feb. is only scheduled to last 5 minutes.

thankyou

 

Marvin

[slick132]

Hi Marvin,

 

Can you answer my Q in para 2 of post #62 above.

 

If you need anything sent between you and WP3 and can't do it yourself, let one of the Site Team know and we'll help.

 

However, we prefer to keep stuff on-thread so advice can be seen and checked or commented on. Also, if it's good advice, then others will benefit from it being visible to all.

 

[welshperson3]

Slick132 I totally agree with your open forum policy, but some things give the opposition a heads up on what to expect, and for that reason only, something’s need to be kept quiet.

 

 

 

 

 

In the next post I’m going to post a letter, firstly read it and understand it then ask questions on anything you don’t understand,then edit it to suit your needs, finally and only when you understand it send a copy to blemain ( recorded delivery) and one to the court.

 

 

 

Wp3

[welshperson3]

IN THE xxxxxxxxx COUNTY COURT

 

Claim No: xxxxxx

 

 

BETWEEN: BLEMAIN FINANCELIMITED Claimant

 

AND

 

MR xxxxx xxxxxx & MRS xxxxxxxx xxxxxxxxx Defendant

 

 

DATE xxxxxxxxx

 

 

 

 

 

 

 

 

 

 

 

1. We names of address are the defendants in this case and are litigants in person.
   

 

1. This is an Agreement Regulated by the Consumer Credit Act 1974
   

 

1. We the defendants believe we have paid the claimant more than is required to pay this agreement in full, we respectfully ask the court to order the claimant to supply a breakdown of what they are claiming, and we also put the claimant to strict proof in respect of all monies claimed.
   

 

1. Upon receiving a breakdown of how the claimant has come to the figure they claim is owed, then we the defendants will supply a fully particulate defence and counter claim for any over payments, and the return of excess interest paid on this agreement.
   

 

1. We dispute this claim as it is made up totally of penalty charges added to our account,
   

 

1. To allow the claimant to assess their position and to help the court, then we will briefly explain why we believe this claim is ill conceived for the plain fact that we have paid the claimant more that is required to end this agreement.
   

 

 

 

 

 

1. It is the contention of the defendant that an “unfair relationship” exists under the terms of section 140A of the Consumer Credit Act 1974, The defendant will ask that the court consider using its powers under section 140B of the Act
   

 

1. There are numerous default charges added to this account, the most recent breakdown of costs I have in my possession is dated xxxxx and totals £,xxxxThe claimant is continuing to add charges, and interest and as this was a fixed term agreement which ended on the date then there is no agreement in place or terms which allow the claimant to continue to add charges or interest.
   

 

 

 

1. The defendant believes that all charges added to this account are unfair under the terms of section 140A of the Consumer Credit Act 1974,And also unfair under the Unfair Terms in Consumer Contract Regulations 1999
   

 

 

 

1. The defendant puts the claimant to strict proof that the default charges are in fact a true estimate of the costs to the claimant in dealing with this account. Should the claimant contend that costs added to our account were a genuine pre estimate, then we dispute this as the debt collection department of the claimant shows they made millions of pounds a year out of debt collecting, and will be shown in the accounts of monarch recoveries (the claimants debt collecting department)
   

1. The consumer credit act 1974 s86e says that a creditor shall not add charges to an account until 28 days after they have informed the debtor of the charge, in our case the charges were added to our account before we were aware that we had incurred a charge.
   

1. The consumer credit act 1974 s86e also says that a creditor is only allowed simple interest (not compound ) on any charges, as said charges were added to our account and our account is compound interest then this would not be allowed, and is also unfair.
   

1. Variable interest rates in clause 3 of the agreement States ” The lender may vary the rate of interest per month from time to time to take Account of actual or expected changes in market conditions”
   

1. Clause 29 of the agreement explains how the interest rate on this agreement tracks the Bank of Scotland when it goes up, but it will not track it if it goes down, this makes for a very unfair term as we had all the risks if the interest rates went up, but received none of the benefits when interest rates fell.
   

 

1. The Financial Services authority have published guidelines on variable interest rates in (Fairness of terms in consumer contracts Statement of Good Practice) and I quote
   

“4.4 In our view,the power to vary interest rates during the lifetime of a contract is not inherentlyunfair. Indeed, a variable rate may be the most attractive for many consumers.It may also give firms the flexibility they need to manage their businessprudently and remain competitive. However, the contract terms should not bedrafted in a way which allows the firm, in varying these rates to take unfairadvantage of the consumer. It is likely to contribute to the fairness of a termif it sets out if, when and how the interest rate may change.”

 

1. The defendant believes that the interest rate clause on this agreement should be assess under the Unfair Terms in Consumer Contract Regulations 1999,and that the way in which it has been operated should be assess for fairness under S140 CCA 1974 unfair relationship
   

 

 

 

1. We would also bring to the courts attention the Judgment of the Court of Justice. C-243/08 Pannon GSM Zrt. v. Erzsébet Sustikné Győrfi
   

 

. (1) In this case the following question was raised. Does the consumer protection provided by Directive [93/13] require the national court of its own motion – irrespective of the type of proceedings in question and of whether or not they are contentious – to determine that the contract before it contains unfair terms, even where no application has been lodged,thereby carrying out, of its own motion, a review of the terms introduced by the seller or supplier in the context of exercising control over its own jurisdiction?

 

(2) By this question, the referring court asks the Court about the obligations on the national court,by reason of the provisions of the directive, in order to determine whether the national court, in the context of assessing its jurisdiction and irrespective of the type of action, must rule, if necessary of its own motion, on the unfairness of a contractual term.

 

. (3)The court seised of the action is therefore required to ensure the effectiveness of the protection intended to be given by the provisions of the Directive.Consequently, the role thus attributed to the national court by Community law in this area is not limited to a mere power to rule on the possible unfairness of a contractual term, but also consists of the obligation to examine that issue of its own motion, where it has available to it the legal and factual elements necessary for that task.

 

 

 

(4) The Court (Fourth Chamber) hereby rules: The national court is required to examine,of its own motion, the unfairness of a contractual term where it has available to it the legal and factual elements necessary for that task. Where it considers such a term to be unfair, it must not apply it, except if the consumer opposes that non-application. That duty is also incumbent on the national court when it is ascertaining its own territorial jurisdiction.

 

 

 

18 the defendant also respectfully requests that the court has an obligation as is shown in the above case to assess the terms of this agreement for fairness.

 

19 the defendants requests that we be allowed to file a full defence after the disclosure of the requested information.

 

 

Statement of Truth

 

we believe the facts stated above are true.

 

Sign here in pen

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

 

Signed by: xxxxxxxx

signed by: xxxxxxxxx

Dated xxxxxxxx

[welshperson3]

When editing the above put in paragraph numbers

[marvin1]

thats brilliant welshperson3, i have had a read and understand most of it, i am only just home from work so will give it another read later or first thing in the morning and make some notes on anything that is not 100% clear to me.

i cant thank you all enough, especially welshperson.

will be in touch as soon as i can

thanks again

 

Marvin

[marvin1]

slick132, i took all the charges that were listed on my statement and wrote to them listing them as in blocks. i.e. letters £130, arrears charges £240, etc i didnt list every single item separately.

the only reply i had was from blemain basically saying that all the charges are listed on the agreement that i signed up for, i have heard nothing from their solicitors

[welshperson3]

Make yourself a list of all payments made on this account;take it to court along with the loan agreement to show you have paid this agreement in full.

[slick132]

Slick132 I totally agree with your open forum policy, but some things give the opposition a heads up on what to expect, and for that reason only, something’s need to be kept quiet.

 

Wp3

 

Absolutely !! If you need to send summat and PM's not allowing it, contact a Site Team member and we'll help in whatever way we can.