SPML/LMC anyone claimed for mis selling and unfair charges?

[frettful38]

I need to have another look to see if I can offer an opinion, but my current understanding is that the only exempt loan is a mortgage after oct 2004 and that is covered/regulated by the FSA who have stated that they will regulate in accordance with this legislation. I think it might be a good idea to have a separate thread specifically around s140B as it may well help many people facing repossession.

 

My mortgage co has threatened repossession, but since I mentioned s140b they've gone quiet - either their preparing for repossession or they're thinking very carefully about the implications. Given the result in bleman vs bentley I think financial institutions might just be a little concerned...

 

I'm a little busy at the mo, but I'll start a separate thread soon...

 

Excellent idea AM, I was going to start a thread for unfair relationship too but feel free to start it and I'll join in along with many other caggers. In fact I am quite surprised no one has started one yet.

 

 

I am currently trying to use the bentley vs blemain to my advantage too as I too have loan with Blemain.

Better late than never hey:D

[Killerschick]

 

People who want to buy a home or property apply for a loan from the lender and with that money buy their property and then that property is owned by the lender/bank until all the loan is repaid right?

 

Hi Fretful,

 

Just on this one point this is not the case. Historically this was how mortgages were formed but since the Law of Property Act 1925 introduced legal charges this is not the case. For a readable explanation you could try this link:-

 

http://en.wikipedia.org/wiki/Mortgage#Mortgage_by_legal_charge

 

First and second charges are exactly the same and the difference is only order in which they are registered. If you repaid a first charge while a second charge remained outstanding then it would become a first charge.

 

First charges are not necessarily for house purchase, plenty of people remortgaged for capital raising purposes until funds dried up in the credit cruch.

 

To get a secured loan whether it's the first, second, third or fiftieth the lender will expect a charge on a property by the very nature of the product.

 

There are obviously differences in regulation (or lack of it) with second charges but not with the way they are created and registered with land registry.

 

Hope this helps.

 

KC

[eagleforms]

8 guests! Is that a record? Do you think that you have touched a nerve with s140b? Let's hope so.

[frettful38]

Hi Fretful,

 

Just on this one point this is not the case. Historically this was how mortgages were formed but since the Law of Property Act 1925 introduced legal charges this is not the case. For a readable explanation you could try this link:-

 

http://en.wikipedia.org/wiki/Mortgage#Mortgage_by_legal_charge

 

First and second charges are exactly the same and the difference is only order in which they are registered. If you repaid a first charge while a second charge remained outstanding then it would become a first charge.

 

First charges are not necessarily for house purchase, plenty of people remortgaged for capital raising purposes until funds dried up in the credit cruch.

 

To get a secured loan whether it's the first, second, third or fiftieth the lender will expect a charge on a property by the very nature of the product.

 

There are obviously differences in regulation (or lack of it) with second charges but not with the way they are created and registered with land registry.

 

Hope this helps.

 

KC

 

not good hey but on a brighter note bentley vs blemain did argue using the unfair relationship test, although it did not set a prescident but still very useful information there was used.

 

 

BBC NEWS | Business | Five-year block on repossession

 

In the above story Mr Bentley's lawyers claimed that Blemain had loaned the money to him irresponsibly, taking advantage of his naivety, vulnerability and desperation.

 

Well Blemain loan ed me the money whilst I was on benefits, in receipt of DLA and already in financial difficulties. The DWP were paying the interest on my mortgage, so I do have many points and can use the unfair relationship regardless of whether my second charge is regarded as a mortgage or not. But really need to investigate and be a 100% sure.

[enoughisenough]

Second charges aren't regulated by the FSA. The OFT regulate under the CCA. So those that aren't covered by the CCA (i.e those over 25K) and are second charges appear to slip through the regs. This is highly relevant to a lot of posters here with 2nd charge loans over 25k from these robbin scumbags. Agreed a new thread may well be the way forward.

[Suetonius]

The Consumer Credit Act 1974 regulates most consumer credit and consumer hire agreements with individuals - which is defined as including sole traders and partnerships of two or three partners.

 

Until 6 April 2008, agreements were excluded from regulation if the amount of credit or hire exceeded £25,000. However, this financial limit was removed for all new credit and hire agreements by the Consumer Credit Act 2006. Pre-existing agreements above £25,000 remain outside CCA regulation.

 

There are a number of exemptions from the 1974 Act. These are principally set out in section 16 and the Consumer Credit (Exempt Agreements) Order 1989 as amended.

 

In particular, there are exemptions for:

 

• first charge mortgages regulated by the Financial Services Authority
  
• some second charge mortgages, depending upon the nature of the agreement and the identity of the lender
  
• agreements for goods or services where the consumer has to repay the credit within twelve months in four payments or fewer
  
• charge cards and similar agreements where the consumer has to repay the outstanding balance in full at the end of each period
  
• credit union agreements where the APR does not exceed 26.9 per cent
  
• credit agreements offered to a limited group of borrowers where the APR does not exceed a specified 'low cost' rate (set by reference to average base rates)
  
• certain agreements relating to overseas finance.
  

The 2006 Act introduced two new categories of exempt agreement:

 

• lending to high net worth individuals, with net income exceeding £150,000 or net assets exceeding £500,000 and supporting documentation
  

Exempt agreements - The Office of Fair Trading

 

 

I will just find the bit about s.140

[Suetonius]

Here you go

 

You could fall back on s.140

 

http://www.newham.gov.uk/NR/rdonlyres/5FDEE9F6-7EEF-4B26-B53C-A419BC5C8D41/0/OFTUnfairRelationships.pdf

 

"2.8 The unfair relationships provisions apply to credit agreements whether regulated or not, and regardless of the amount of credit extended."

[frettful38]

Second charges aren't regulated by the FSA. The OFT regulate under the CCA. So those that aren't covered by the CCA (i.e those over 25K) and are second charges appear to slip through the regs. This is highly relevant to a lot of posters here with 2nd charge loans over 25k from these robbin scumbags. Agreed a new thread may well be the way forward.

 

 

Agreed to EIE, otherwise this thread will just go off track which won't be fair to the OP and points relating to their arguments with Spml.

 

Bentleys solicitors used the unfair relationship route to fight his case. His loan was over £25k and secured on his property, so that must mean some good news as it made to the national papers.

[Suetonius]

However, don't forget....

 

Not sure if Fretful has a mortgage or loan but bad news if it is a mortgage as 140a continues-

 

"The unfair relationships provisions apply to credit agreements whether

regulated or not, and regardless of the amount of credit extended.5 The sole exception is where an agreement is exempt under section 16(6C) of the 1974 Act because it is a regulated mortgage contract under the Financial Services and Markets Act 2000. In all other respects, the

provisions apply to exempt agreements including those which will be

exempt by virtue of section 16A (high net worth borrowers) or section

16B (business lending for more than £25,000) of the 1974 Act.6 "

[frettful38]

However, don't forget....

 

 

Very good info there sue once again, so where it states

 

In particular, there are exemptions for:

 

some second charge mortgages, depending upon the nature of the agreement and the identity of the lender

 

leaves it open minded and unsure for people to know exactly where they stand if they want to challenge their agreements using this act. Who knows what "some" really does mean, another bit of the jigsaw to find hey.

 

They really know how to cover their backs with their wording, as they don't want to set a prescident as this will open up so many floodgates and damns.

[cher69cher69]

Hi enough is enough

I must be having a dementia moment but does that mean it is ok to put on here the problem I am having with capstone/sppl at the moment or start a new thread. I have read the FAQS but as I say being a bit thick at the moment. LOL thankyou cher69:confused:

[enoughisenough]

Here it is

 

I haven't made a particularly good go of starting the argument but everyone pretty much knows the issues.

 

http://www.consumeractiongroup.co.uk/forum/mortgages-secured-loans/256790-2nd-charge-fairness-enforceability.html#post2890620

 

Look forward to your responses...

[enoughisenough]

HI cher69cher69

 

I'm not up to speed with your posts I'm afraid. Just keep posting here until enough people tell you that you shouldn't! There's always a good reason for starting your own thread though and that is that people are only interested in your argument and situation. At least for a while anyway... (LOL)

[Suetonius]

Suetonius you are a right scream, I'd hate to be arguing with you on the doorstep - not a Jehovah are you?

 

No but was forced to go to Sunday School every week as a kid (do they still exist now ?)

[Suetonius]

Suetonius and EiE, apologies for the cagbotting you will no doubt receive. Any forward references to the posts that fmann made have been unapproved.

 

fmann, I have removed reference to your request for people to pm you for information. Regardless of whether it was meant in good faith, fmann, CAG does not encourage users to pm for information where a charge is also being requested.

 

 

No apologies needed, totally agree and understand

[cher69cher69]

Can anyone advise me if SPPl/Capstone have to go back to court to evict me from my home as I have a suspended possession order on it at the moment and need to know how much time I have got to complain about them. I also need to know if i should apply to vary the order in the mean time because they wont agree to the one i am proposing which is the original order the court made. OH God this sounds so stupid !! but i dont know what other way to explain it thank you cher69:)

[Guest MamaG1]

I am trying to get my head around this CCA 1974 and it's s140B in real terms too, cn some one pls say in layman english what this means to us.

 

Advantage or a disadvantage then??.

 

Can all please look at my tread on repossesions and comments.

 

thanks

[AnimalMagic]

Can anyone advise me if SPPl/Capstone have to go back to court to evict me from my home as I have a suspended possession order on it at the moment and need to know how much time I have got to complain about them. I also need to know if i should apply to vary the order in the mean time because they wont agree to the one i am proposing which is the original order the court made. OH God this sounds so stupid !! but i dont know what other way to explain it thank you cher69:)

 

A suspended possession order can usually be enforced without a further hearing if the terms of the order have been breached. You need to go back to the court and ask them to vary the terms if you cannot afford it...

[AnimalMagic]

Wonder if anyone knows if you could apply to the court to simply get a judgement whether an agreement was illegal under s140? Rather than defending a repossession or similar...

 

It's a county court jurisdiction so should just be a hearing fee...

[AnimalMagic]

Hi Animal Magic

 

We keep hitting a brick wall with this one. Say a second charge loan was entered into in 2005, but was over the £25K limit for the purposes of the CCA. It doesn't get covered by the CCA 74 or CCA 2006.

 

Is it a loan or is it a mortgage? To me there seems to be a great big regulatory black hole here. They claim (as they would that it is unregulated)

 

Equally there seems to be no mention of this as a risk factor in the prospectuses. They were concerned about "dual regulation" but not about no regulation.

 

I've often though a professional legal opinion was desirable here. Is there any such beast as an unregulated consumer contract?

 

You're right on one thing though. It does seem to be a very powerful basis for challenging these contracts.

 

Thoughts? Sue? I really am confused about the status of such a loan. Was this a free for all gap in consumer protection law? I'm fairly sure there is no retrospective effect to the CCA 2006 which abolished the limit.

 

My reading and understanding is that ANY consumer agreement is covered whether regulated or not. The only exemption is under s16 6 c which AFAIK is mortgages regulated by the FSA - i.e. mortgages taken out since Oct 2004.

 

As suggested in my previous post, maybe it is simple enough to put together a case to seek a judgement from the CC that the agreement is illegal under s140. If you got such a judgement, then that would put you in a powerful position, to say the least.

[AnimalMagic]

the provisions apply to exempt agreements including those which will be

exempt by virtue of section 16A (high net worth borrowers) or section

16B (business lending for more than £25,000) of the 1974 Act.6

 

Suetonius agrees...?

[enoughisenough]

Can anyone advise me if SPPl/Capstone have to go back to court to evict me from my home as I have a suspended possession order on it at the moment and need to know how much time I have got to complain about them. I also need to know if i should apply to vary the order in the mean time because they wont agree to the one i am proposing which is the original order the court made. OH God this sounds so stupid !! but i dont know what other way to explain it thank you cher69:)

 

Hi cher

 

As noted elsewhere the normal procedure is for them to wait for you to breach the order then they apply to the court without notifying you first for a warrant for eviction. The barstewards will do this at the drop of a hat such as late payment or a shortfall in the agreed overpayment.

 

More insidious though is that they exploit how useless the courts really are by claiming a breach WHERE NONE AS OCCURRED and the useless court just rubber stamps it. After all the lender would not lie would they?

 

Ive heard cases of people paying and them simply not processing it, of claiming payments haven't been made where they have and so on. The **** are tireless in their quest to rob you of your house and throw you and your family's sorry asses on the street.

 

I never cease to be amazed by their boll0cks. What do they mean they don't like the court order? IT IS AN ORDER OF THE COURT. They'll have a hard time arguing that so if they go for eviction FIGHT AND WIN BECAUSE YOU WILL WIN.

 

Why do you want to vary the order? There are strict time limits on this in any case.

 

Keep the faith. EiE.

 

OH AND KEEP FIGHTING THE ****.

[cher69cher69]

Hi everyone:-)

 

I felt I must make you guys aware that I have a :shock:mental illness :shock:which is rather annoying when you know what you want to say but you cant write it down:cry:. In other words my brain gets easily muddled:confused: with lots of information that is why I end up posting on the wrong boards and putting things sometimes that are totally irrelevent. Just wanted to make you guys aware that I am not a complete LOON!!! I was once quite intelligent but the worst part is that one day I can be as bright as button:p, and the next, I cant even string a sentance together:confused:. lol!! Just thought I would let you know didn't want you thinking I was being an idiot !!

okay, thats off my chest now onward and upward gotta keep smiling!! lol:grin:

Thankyou for your understanding and putting up with me cher69 x:-)

[enoughisenough]

Cher

 

When was the order made, what does it say and why do you want to vary it?

[cher69cher69]

hi enoughisenough

 

The order was made back on the 14th November 2007.

It says order for possession (morgaged premises) Suspended.

 

Upon hearing Mrs..........in person (I dont know how because I did not attend)

and upon mr.............not attending( err yes he did attend)

 

1.The defendant give the claimant possession of ...............on or before the 14th of December 2007

2. This order is not to be enforced so long as the defendant pays the claimant the unpaid instalments under the mortgage of £370.66 by the payments set out below in addition to the current instalments under the mortgage payment required £20.00 per month the first instalment being paid on or before the 5th Decemeber 2007.

THEN FURTHER DOWN IT SAYS TO THE DEFENDANT

The court has ordered that unless you pay the arrears under the mortgage at the rate set out above in addition to your normal payments

you must leave the premises.

 

Payments should be made to the claimant not made to the court

if you need further information about making payments please contact the claimant.

 

If you do not make the payments or leave the premises the claimant can ask the court without further hearing to authorise a baliff or high court enforcement officer to evict you. (in that case you can apply to the court to stay the eviction, a judge will decide if there are grounds to do so).

 

If you do not pay the money owed when it is due and the claimant takes steps to enforce payment, the order will be registered in the register of judgements orders and fines. this will make it difficult for you to obtain credit.

Thats it!!

 

The reason I am saying about asking the court to vary the order is because SPPL have decided that that the amount that the court ordered me to make is not enough now, because to them because when i missed a payment last year I managed to pay more than £20 to get back on track again and then when I had got straight I reverted back to the original order. Paying just the extra £20 the court ordered me to pay but they have decided that i can obviously afford to give them more money in the future.

 

But then like you say i thought why am i asking the court to vary the order?? It was the only thing I could think of doing at the time so that the court would make a new order that sppl couldnt argue with. But then I thought you twit !! I would be asking the court to make an order to vary the order to what it already is, oh jeez see they have got me that confused !!! so that idea went out of the window really!! I dont know what to do to be honest lol!! I am up to date with my payments and just this month is due on the arranged date of the 24th which was arranged with an advisor on the telephone just after court because our money doesnt go in the bank till then, they said thats fine at the time but i think theyhave forgotten they agreed that hence the late payment fees. arrhhhhh!!

 

We have tried to tell them over the phone that we had to rob peter to pay paul basically not pay someone else to catch up with the mortgage. But they were having none of it and are now charging me late fees, litigation fees, arrears management fees, every month. Now our income has gone down by £400 a month so there is no way I can pay any more we are going to be struggling as it is now. We told them this but they demanded a new income and expenditure sheet and copies of all our household bills totals of all the arrears and once they received all that they wanted me to phone them to go through it to see if I could save any money anywhere.

 

I thought are you fools joking. But i did what they asked but told them i wasnt phoning them, they wrote back on the saying the gas bill was missing (it wasn't), so I wrote back on the 13th of April saying I had had enough :-xand they better sort it all out refund my fees and charges or i was going to report them to the FSA and OFT. I gave them 7 days to reply.

 

They sent me a letter back on the 15th of April which didnt even mention my letter just threatening to take me back to court, and now my arrears total is £3177.86 and I havent got a clue how they have ended up with that figure, I thought that by the court making an order the arrears were supposed to go down not up????

 

I am sorry I hope that all makes sense!!!

 

(I will put the letters on to show you is that okay??

Thank you so much for you help)

It is really appreciated

kind regards Cher69