F&F secured loan with Elderbridge (old First Plus/Barclays) - coerced debt and selling house

[Myfamily]

Thanks Andy,

 

I will see what I get from the court then just don't want to be too easy on them. Eversheds tried to dupe me before by implying to me on the phone around Christmas when I was particularly stressed I told them there was no equity in the property and they said that "it was not about equity it was more about security and they may not even enforce it" this led me to believe that at the hearing they would be going for a suspended possession order - this was before I submitted my defence and if I had believed him and not done my defence or turned up at court I would be out of my home by now.

 

They're a sneaky bunch and I it just frustrates me that I have to allow extra time, I did my defence pratically by myself!! they have an army of qualified solicitors and they can't reply within 3 weeks!!

 

I will try and be patients but it's so hard, I just want it done!

 

Thanks Guys, will let you know when I've heard.

[Myfamily]

Well the application to vary the order was granted, they had basically asked for more time - they now have till next Monday the 18th to answer my defence.

The next hearing in June has been changed to a case management conference.

I will see what they're response is next week, but I assume that they can't really ask for another variation and more time after that!

Well I got the response to my defence, most of it I feel is pretty lame! but i did also mention the unfair terms etc and so I have attached this part of my defence and their response - would anyone mind having a look and letting me know what you think - thanks!

[Myfamily]

Hi citizen,

 

my question was in post #100, sorry couldn't get docs posted properly so it's got in the way!.

 

"Hi everyone,

 

Well I got the reponse to my defence, most of it I feel is pretty lame! but i did also mention the unfair terms etc and so I have attached this part of my defence and their reponse - would anynone mind having a look and letting me know what you think - thanks!"

 

It's mainly whether anyone thinks that they have answered my questions about the contract being fair. In 18.3 of their response they have said that that clause 7 of my contract is a "core term" and I have been advised that this is not the case as it's reagarding a variation in the price.

 

So really I wanted to see what anyone thinks about the rest of the reponse here.

 

Thanks

[Myfamily]

Hi All,

 

I'm sure you're all really fed up with me now but I am due in court next week for this case management hearing. Now I understood that this is to discuss details of the case etc.

 

I got a letter from Eversheds at the end of April but thought nothing of it as I am going to go to the case management hearing and defend myself.

 

But then today I got a letter addressed to the occupier which states at the bottom that it is their itntention to gain possession of the porperty at the case management hearing but I thought that it was not possible to do that, I thought it was just to discuss which parts of my defence can and can;t be used etc. Then looking at their first it seems VERY theatening!

 

Can anyone advise - I have posted a copy of the letters.

[DonkeyB]

This is odd, because it was Eversheds who requested the adjourned hearing be changed to a case management conference, and this was before they had submitted their response to your WS.

 

Feels like an abuse of process to me, especially against an LiP. And I think the judge will tell them where to get off –*they are effectively going for summary judgment, but that would require an application, and a change from a CMC, which you should be made aware of.

 

Call the court and ask if any application has been made regarding the case.

 

However, as mentioned previously, the court’s hands may eventually be tied if payments are not made.

 

Any response from the FoS?

[Myfamily]

Hi Donkey,

Many thanks for your reply, I will give the court a call and see. If they have not had any application what would be my next step? I only have 7 days left till the CMC!

I'm sorry would you mind just telling me what a WS is a LIP?

I know I'm not making full payment but I feel that I was severely mislead by FP, on inception of the loan were led to believ that it was variable and everyone knows that when a loan is variable it is normally based on the BOE rate or FHBR where as this loan has increased continuously whether the BOW rate goes up or down.

When I got into problems and advised FP that I could not make the full payment I was given a reduced payment plan and told that interest was frozen, I unfortunately didn't record any calls (i believed they were trying to help me!!) But i have one recording last year where they confirmed interest was frozen. They deny ever saying this! my CMI is £947 and about £825 is interest which I believe shows that the interest rate is excessive.

I did a SAR and asked for copies of all telephone recordings and only got one which was an old call where they basically called me at work to tell me that the loan was finalised and I would get forms in the post.

I am scared now that I will go to court next week and the judge will only consider the fact that I can't make full CMI + an amount for arrears.

The FOS replied to me and said that as it was being heard in court, they would not get involved as the judge has more power than them. I replied to them and explained that it was a possession hearing and the court is only interested in whether i can pay the full CMI , they dont care whether the original contract was fair or not.

Also does anyone else think that the letter from Eversheds (first two pages on uploaded doc in post #114) is overly aggressive and threatening!??

[citizenB]

WS = Witness Statement

LiP = Litigant in Person - someone who is unrepresented.

[Surfer01]

When i requested an SAR from FP I requested inclusion of all telephone transcripts and they were supplied. They should have a record of every phone call between you and them and if they did say they had frozen the interest, then it should be there. If you can prove that the SAR is incomplete they would probably stand no chance in court if this was highlighted to the judge as you cannot complete your defence! Hopefully someone else can confirm if this is correct. It will give you more breathing space until finances improve.

[citizenB]

I am a little surprised that they have addressed the letter to "The Occupier" when they know full well who you are.

 

IMHO, yes, the letter does give the impression of being threatening.

 

Can they make an application at a CMC hearing ?

[Myfamily]

Hi Surfer and Citizen.

 

Surfer - I did specifically ask for copies of calls or transcripts of the calls and only got a cd with one call on it! The basis of my defence is that I was told that interest was frozen they had agreed to reduced my payments, seems crazy that they would give me reduced payments for a year yet charge more in interest than the payments I was making - as I said I beleived they were trying to help me - how wrong I was!!. I have one recording of a call last Nov where they said that interest is frozen so I was thinking that I will get it onto a cd and write up a transcript for the CMC, and tell the court that I did a SAR and requested transcripts of their recordings of calls and only received one - surely this won't look good to a judge! What do you think?

 

My other part of my defence is that the contract itself is unfair, the interest rate is variable but not based on anything FP can just increase it when they want. Also in the reply from Eversheds they have stated the "clause in the contract relates to the adequacy of the price and/or remuneration received by the claimant in consideration that the services that it provides and is therefore and "Core Term" of the loan agreement. Accordingly, pursuant to regulation 6(2) of UTCCR it is exempt from the requirement of fairness by the regulation.

 

Alternatively, if, which is denied, the requirement of fairness created byt the UTCCR does apply to Clause 7, it is averred that the clause is fair - it is consistent with the requirement of good faith in that it does not cause a significant imbalance in the parties' rights and obligations under the loan agreement to the detriment of the defendant".

 

I was advised before that the first part of this comes under the FSA statement of good practice - fairness of terms in consumer contracts, which states.

 

1.9 - A core term of a contract is not generally reviewable for fairness under the

Regulations, provided it is written in ‘plain, intelligible language’ (Regulation 7).

Core terms are generally those which define the main subject matter of the

contract (such as the goods or services to be supplied) or which relate to the

adequacy of the price or remuneration as against the goods or services

supplied. Ultimately whether a term is a core term is a matter for the Courts.

However, in our view, neither an interest rate variation clause nor a premium

review clause is a core term within the meaning of the Regulations because

each relates to varying the price rather than to setting the initial price. While

the price of a product or service is not something that the FSA would normally address, as we are not an economic regulator, we will consider

whether firms have met their wider obligations to treat consumers fairly with

regard to the way in which price variation clauses are operated.

 

Citizen - do you think there is anything I can do about the threatening letter as it appears to be telling me to drop all of my allegations about FP i.e unfairness/excessive interest etc and implies that they will win, also scaring me by telling me that costs will be significantely higher if I continue to dispute their clients claim and if the matter proceeds to a contested possession hearing.

[citizenB]

I suspect all you can do is bring this to the attention of the court. I will send an S.O.S on your behalf to see if we can find some help for you.

[DonkeyB]

However, in our view, neither an interest rate variation clause nor a premium review clause is a core term within the meaning of the Regulations because each relates to varying the price rather than to setting the initial price. While the price of a product or service is not something that the FSA would normally address, as we are not an economic regulator, we will consider whether firms have met their wider obligations to treat consumers fairly with regard to the way in which price variation clauses are operated.

 

This is absolutely central to your response – in their response to your WS, they aver that the variability of the interest rate is a core term. The FSA clearly says it is not, and I think both the lender and the court should look seriously at the FSA view on this.

 

So, chucking that out as a core term – which surely the judge must – their argument is only that the term itself is not unfair, which is a matter for the courts, and which I doubt the judge would rule on at a CMC.

 

Regarding the recording – prepare a transcript for presentation to the judge, and have a CD in your pocket. State that you only made this recording for your own records, as proof of your discussions and agreements.

 

Have you already put into a witness statement anywhere your contention that they agreed to reduced payments and to freeze interest, which they subsequently denied? If not, you will have to serve this transcript on the oppo and enter it as a new WS.

[Myfamily]

Hi Donkey,

 

So what do you think I should re the unfairness part - should I write something to give to the judge explaining what you have said above?

 

Yes I have already put in my original defence that they agreed to reduced payments and agreed to freeze interest - they deny this on their response but as I said have not gven me all of the telephone conversations, I recorded one call but that was only last Nov and only because I was advised to start recording calls (you sort of expect honesty from and big bank like Barclays!!) but it seems like they're trying to hide something as they're now trying to scare me into withdrawing my defence!

[DonkeyB]

If it’s already in your evidence, then I suggest you prepare a short supplementary WS. Send this to the court and copy in the claimant (a couple of days later). Send only the transcript, and be clear that this was done for your own records.

 

Say that you are presenting this evidence to back your witness statement, as the claimant has failed to disclose material evidence that is probably in its possession which would benefit your case, and damage theirs.

 

Your defence to some degree rests on your assertion that the claimant agreed to reduced payments and to freeze interest. If they deny this, and your transcript proves it was the case, then they have a problem of honesty and probity (although technically they could, IMO, still apply for possession at the correct type of hearing).

[Myfamily]

Is there any chance that anyone can help me write this please? I will write up the transcript of the call.

But I should also be mentioning the unfairness in this WS too, shouldn't I?

[DonkeyB]

Surely the unfairness issues have already been covered? Perhaps simply reinforce the issues by making it clear that the claimant has promised and agreed to one thing, then done another. That is inherently unfair, but you need to relate their specific actions to specific parts of the TCF legislation. Homework and reading to do!

[Myfamily]

Yes it's all in my original defence but eversheds reply just seems to gloss over that point, I just want to make sure the judge realises that there is much more going on here, I'm scared that they will just be convinced that Barclays First plus are in the right and that's it, i'm homeless!

Argh!!! I'm so sorry everyone, I've just gone into full blown panic mode, I don't know where to start with this WS. also worried that Eversheds will try to get possession but I thought the point of a CMC was to discuss the facts not make the decision there and then.

Can anyone help me please??

Anyone please!

[steampowered]

The point of a CMC is to discuss how the case should progress and give directions for the management of proceedings up to trial. The point is not to make a decision there and then.

 

However, the court does have power to make case management decisions at the CMC. This includes strike-out your Defence and/or decising on the issues if appropriate. The court will only exercise that power if it thinks there is no real reason to hold a full trial, for example if the court thinks your Defence has no real prospect of succeeding. You prepare for this possibility by preparing to explain to the judge why your Defence has merit and should be allowed to proceed to trial. If the Claimants want a strike-out, you would normally expect them to issue a formal strike-out application in advance of the CMC... which they don't seem to have done.

 

If you haven't already, contact the housing department at your council to make them aware of the situation and so that you know who to contact just in case things do not go as we hope.

[Myfamily]

Hello everyone.

 

A quick update for you.

 

I recieved a last minute (i.e. day before the hearing) witness statement from Eversheds. and only had one evening to draft a quick, which i did.

 

I went for the CMC yesterday and will admit that we were terrified, so much so that we had decided that wil would give in and pay the full CMI plue an amount towards the arrears, we spoke to FP's solicitor before the hearing and she spoke to her boss and that was that..... until.....

We got into the court room, FP's solicitor (i will call her FP for now!) gave the judge the application for a suspended possession oreder on terms etc....

The judge questioned their figures as they had seperated out the interest becasue of our defence argueing against the interest, this confised the judge and she didn't like it, gave FP a hard time about this

 

The turned to us and siad so basically you're going to re-jig your finances and scrap this together, somehow. I said basically yes. She asked if we were sure because we raised a number of issues which she said entitles us to a trial!

 

I said I understood but I didn't want to gamble my home and my childrens future for it, my kids are young in school and I didn't want to disrupt ther lifes! She basically said that they can't get possession unless she says so, so we can still get a suspended possession order at the trial if it doesn't go our way. we dicussed this for a bit and then she said that she wasn't trying to convince us to change our mind but we had a lot of issues whcih could be discussed at trial.

 

She suggested we go out for a few minutes and think about it which we did and decided to go to trial!

 

We got back into court and asked the judge for the trial and she then asked about the phone calls, I explained that I did a SAR and they provided a copy on a cd of one phone call going back to the beginning of the loan, I explained I had a recording of a call which said interest was frozen, and I had done the transcript for her her and replied to the latest last minute witness statement, which the judge had seen that morning and again was not happy with it as she didn't see any reason for Eversheds doing another one as it was no different from the one they did before! ( i personally feel that it was to scare us - and it did work!!).

 

Anyway, judge has asked the to provide transcripts and copies on a cd of all telephone calls between the relevant dates, I am to provide the same of my phone call. I also have to submit a full witness statement and I will need to investiagate th unfairness route of my defence too.

 

I know it seems mad but it felt like the judge really thinks we're onto something here, she was very un-happy with FP and Eversheds calculations and statements etc, I feel like she wanted us to take it to trial as we've obviously got a case here, it's just a case of proving it now! I have that one phone call, I am wondering whether they have kept all of their phone calls as they only provided one to me.

 

In the phone call that I have recored I also asked the advisor what theire variable nterest rate is based on, he explained "It’s variable based on the Bank of England, the Finance House Base Rate , what our competitors are doing, the house market conditions , house prices….. there’s quite a few things"

 

I then ask how much above the base rate does it run at, he said "Well, as I say the only thing that would be in your…. Lets have a look…. What your terms and conditions are. In your terms and conditions the only things it states is that our interest rates cannot change by more than twice the variation of the Finance House Base Rate in any 12 months rolling period. So if the Finance House Base Rate goes up by 1% and we decide to change our rates then we can put our rates up by 2%.... We offered you a rate, based on what was the best at the time, and our rates have then gone up and down which is the same for all customers and as I said with regards to changing of the rates, providing we stay within the terms and conditions around the interest rates then we’re er…. we can change them as often as we want…."

 

I also need to find other case that have gone to court re unfair contract terms etc!

 

Got a lot of work ahead of me! Please do hang around and if you can help I would very much appreciate it!!

[Ell-enn]

Well done you and what a great judge you got ! FP aren't going to like that result one little bit, wouldn't surprise me if they suddenly found they'd made a mistake and re-jigged your account

[Myfamily]

Thanks Ell-enn! Means a lot coming from you, I know you are the Queen of these things (I'm assuming your female )

Yes, judge was really good, she was not happy with them but nicely took time to explain to me what would happen next, even explaining terms like file and serve (which I did know!) but she explained it anyway - very nice!

I am going to wait for the court order so I can get exactly what I need to do. I don't think FP will be too happy as we had made a verbal agreement to make that payment and go for suspended possession but I just felt in the court that we should go on! and at least I know that I can still have the suspended possession order later on.

I did mention in the court regarding unfair contracts the FSA statement of good practice - fairness of terms in consumer contracts, which states.

1.9 - A core term of a contract is not generally reviewable for fairness under the Regulations, provided it is written in ‘plain, intelligible language’ (Regulation 7).

Core terms are generally those which define the main subject matter of the contract (such as the goods or services to be supplied) or which relate to the adequacy of the price or remuneration as against the goods or services supplied. Ultimately whether a term is a core term is a matter for the Courts.

However, in our view, neither an interest rate variation clause nor a premium review clause is a core term within the meaning of the Regulations because each relates to varying the price rather than to setting the initial price.

While the price of a product or service is not something that the FSA would normally address, as we are not an economic regulator, we will consider whether firms have met their wider obligations to treat consumers fairly with regard to the way in which price variation clauses are operated.

as FP state that clause 7 in the contract is a "core term" which according to the FSA it is not. but I think I will need to change that as it's now the FCA isnt it?

Could anyone tell me where the firstpluscomplaints.co.uk people have gone, I know their website went and I know they are supposed to have a facebook page but I can't find it.

Anyone know it at all, I think I will need their help too!

[citizenB]

Hello again,

 

Could anyone tell me where the firstpluscomplaints.co.uk people have gone, I know their website went and I know they are supposed to have a facebook page but I can't find it.

 

Anyone know it at all, I think I will need their help too!

 

 

Sorry I don't understand this..

 

Just picking up on something that was said in an earlier post. It is my understanding that the FCA (previously FSA) demands that all calls in relation to any mortgage arrears MUST be recorded, even if they only discuss security checks. I was made aware of this back in May of last year.

 

 

 

 

 

 

[citizenB]

I tried to find that website and am receiving an error message.

 

 

 

 

The server encountered an internal error or misconfiguration and was unable

to complete your request.

 

 

Please contact the server administrator, [email protected]

and inform them of the time the error occurred, and anything you might have done

that may have caused the error.

 

 

More information about this error may be available in the server error

log.

 

It is my understanding that a lot of websites were lost because of some problems a couple of weeks ago. I do not know why their FB page would also go though ? You could try contacting their webmaster on the email above. Do make sure there are no spaces in the address when you use it. CAG does that by default.

[Myfamily]

Hi Citizen,

 

I had been on this website before and they went to court and lost against first plus, but they were funding themselves and also getting donations from the users but unfortunatley they could no longer afford the site fees so created a facebook page instead, I don't know if the facebook page has gone or just that I am not searching for the right thing but I know that a few people here were members on that site too, so hopefully they will see this!

[citizenB]

Ah righto.. understand. Yes, I am sure those who are subbed to your thread will see the request