Gooner73 v Swift Advances

[Sparkie1723]

I have a court date next week where they will hear my arguments on why my case should not be struck out.

 

I sent a letter outlining my reasons why I feel the case should be continued as I feel the Supreme Court judgement does not apply to this case. However, I am not sure where to go next with legal arguments to continue my action against swift.

 

I also don't know whether I need to form a basic legal argument when the judge hears my objections to the strikeout or whether he will just listen to reasons I stated in the letter to the court.

 

I am currently trawling the forums to catch up on the latest developments!

 

Draw yourself a little skeleton argument up on th point that the court ruling does not apply to Swifts charges as they are not a bank as I said, but also under the unfair relationship, have a good read of that section 140 of the new CCA act and the Guidance given by the OFT...put them to strict proof that their charges are fair and ask for a complete breakdown on how they arrive at them also the annual accurial statement of your account.

 

 

sparkie

[frettful38]

Hope this is helpful and a good read for caggers wanting to use the s140

 

Important County Court decision could impact on lenders and brokers - Bridging And Commercial

[gooner73]

Hi,

 

As my loan was taken out in 2003 I don't seem to be able to use the new CCA in my case

 

I feel I have a case as they gave me a settlement figure and then added charges on the day the loan was redeemed to force the re-possession of my house as they knew I would have a shortfall. (I managed to make it up and the loan was redeemed!)

 

They have never broken down my charges even though I have asked on many occasions and as far as I am concerned they made up the amounts off the top of their head!

 

I am challenging them to prove that they did not do this but I am still unsure of what I can base my legal arguments on. It is definately an unfair relationship, but the legislation was not in place at the time.

[Small_Fry]

Let me give you some tips with swift

 

1. check your tansaction history time lines. It clearly shows how long a member of staff worked on your file. Check the date / time section. the Judge in may case was very intrigued that the charge fr a ER cost from mortgage co, which took 3 minutes, was charged at £25. This meant the mortgage co was charging the customer the equivelent of £500 per hour....the Judge actually laughed when I pointed this out!

 

2. The settlement figure...when it was given to you was it to be used within a certain time preiod? Normally it will state something like "redemption of £XX,XXX.XX up to and including 21st Never 2010. If you go over that date then they can and will change the amount owed under the early redemption clause. HOWEVER check your agreement...some of them have clauses stating the ERC will be a % which decreases in total the longer you have the mortgage. E.G. Clause X: ERC of 6% if taken within 24 months, ERC of 5% if taken within 36 months etc etc. If they are charging you more tha the % stated then they are breaching their own contract!

 

3. If you have a figure and the mortgage is settled withint the set timesclae then you could rely on "Loss of Bargain".

Definition "Loss of Bargain is the loss resulted out of the inability to do an act consequential to a non performance of duties or contract by another person or entity. Eg.. Failure to deliver a product due to the non-supply of raw materials by the sub-contractor"

So as Swift added charges onto the figure at the las tminute...and those charges were not included in the relevant er figure (which is still in date at the time of the sale) then I belive LOB is the answer. They have simply breached their contract by giving you one figure and then changing it.

 

4. Has anyone thought of doing these cases as class action against Swift? This could be to your advantage for a number of reasons. It will reduce the costs for each person included. It will give weight to each case. You will be able to show swift often have no reasoning behind the chrges and how they were derived. It will show Swift your not scared to take this all the way.

 

5. Regarding the case to strike out using the Bank case rule...Swift cant have it both ways. My argument would be swift dont want to abide by guidelines set by OFT (Calculating Fair Default Charges in Credit Card contracts) in that charges should not exceed £12 and that mortgage companies were asked to bring charges in line with CC default charges (section 5.14), however they do want the ruling regarding the default charges of banks to apply to their case. They cant have their cake and eat it!!

 

My case with Swift has ended in my favour! The pointers I have shown above are thos which the Judge in my hearing questioned their barrister on. My case was about charges and ERC. I was lucky and had excellent legal advice on the end of the phone and the Judge was very accommodating. Hope this helps!!