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

[Surfer01]

I suggest asking the judge if affidavits regarding the varying interest rate with BoE would be acceptable? I am sure you could get a lot more off the FP complaints forum.

[DonkeyB]

Sorry, hadn’t realised the hearing was so imminent.

Just stick to the facts – state what you believed, and were led to believe, and show the offending advert.

And pull up their brief on any points – you will be allowed to ask questions and cross examine.

Also point out you are paying, have made fair offers, and that you have a family to home.

The judge may well make a time order, where he sets the level of payments.

Good luck – wish we had more time.

Myfamily, how did it go? Hopefully you got an understanding judge...

[Myfamily]

Hi Donkey,

 

So sorry it has taken so long to get back to you, it's been a really long day!!

 

Anyway, he is a basic run down of what happened.

 

First they had a witness who works for FP and I was my own witness, they questioned her and so did i, regarding what the normal poicy is when taking calls and do they have the aothristy to reduce or freeze interes, they said no.

 

They then questioned me which was truely terrifying!

 

I brought up the misleading adverts, that i was told interest was frozen and that the term of the contract was unfair.

 

Basically the judgement was.

* The misleading advertising evidence was dismissed, because the judge said the could not be sure that it applied to my loan at the time as FP offer many different loans at different rates

 

* There were no notes made from FP about freezing the interest in 2011 and because there is no evidence i.e the phone call she decided that it was unlikey that that was agreed and she felt that I must have mis-understood what I was told.

 

*Regarding the unfair contract Term, she shaid that their reason for varying rates are very widely drafted and must include to protect their profit margin, the protection that the FHBR clause offered was very limited. So she concluded that the term WAS unfair! as under section 5 (1) of the unfair terms in consumer contracts regulations 1999.

she stated that the reason was because there was no provision athat allows the consumer to get out of the contract. the consumer cannot plan for increases as it doesn't track any base rate.

She staed that the termheavily favours the lender and is imbalanced to the detriment of the consumer.

 

She said the agreement still exists but this term must be removed and ordered that FP re-calculate our entire loan from the beginning on a fixed rate of what it was on inception, untill now.

 

FP aksed to appeal that decsion and the judge said no. but they can ask the district judge if they can appeal but if they say no then this will be a precedent!! At the moment it isn't so will help no-one (so please don't go running to court with this as it could be overturned!!) but hopefully if the right to appeal is rejected this will help other people. So I am very pleased in that way,

 

I am a bit dissapointed because the ruling for me is that I am still in arrears and all that interest is going to be added back in so I may actually be back whaere I started 7 years ago

 

FP have 28 days to do the re-calculation then another hearing date will be set.

 

Thank you everyone for all your help and support, I will let you know what I get from them. Hopefully I will sleep a bit better than I have done in recent months!

Edited October 17, 2013 by Myfamily

[Mike_hawk]

Is there any other provision or express condition for rate increase, or would the effect of today's hearing create a fixed rate for the entire term?

[Myfamily]

It creates a fixed rate for the entire term as the only term allowing them to vary the rate will be removed.

[Mike_hawk]

I'd be inclined to recalculate the running balance based on fixed term. The true position is far less substantial than the other side were originally pleading.

 

Oh and, well done... I appreciate it may not seem like it if you are still going to struggle with repayment but its a bliddy good result. Give it another 5 or 6 years and you may find you have the lowest rate mortgage in the market.

[Myfamily]

Thanks mike. Yes at least this means that fp cannot increase my rate again. And even better their solicitors tried twice today to get me to back down saying there was no way the judge would decide that the term was unfair! How wrong they were!

[Mike_hawk]

Has it created a separate pot of charges/fees in relation to the arrears?

[Myfamily]

To be honest I am not sure ( figures are not my thing!) But I suppose I will see when I get their calculations?

[Mike_hawk]

It should have served notice at each charging event. Has it provided annual mortgage statements?

Do you have access to a friendly financial advisor who could run the calcs for you?

[Myfamily]

Yes i have statements and a financial advisor.

They don't seem ti have added charges but they have suspended the interest from nov (when they defaulted me) and kept that in a separate pot ( is this what you mean?)

This will be added back to the loan I think and my financial advisor says it will be better for me if they're not charging interest on interest, hope you know what that means cos like I said figures are not my thing!!

So sorry for my typing . Using my phone and tired!!

[Mike_hawk]

Yep, that's what I meant.

 

Perhaps ask your fa to run the figures for you, today's hearing had the effect of ordering restitution in much the same way the ombudsman would recreate an account to remove PPI.

[Myfamily]

Will do! Thank you! I will let you know, as soon As it's done, now gotta try and catch up on some sleep! Goodnight

[slick132]

Hi MF and well done with the result so far.

 

It will be interesting to see the final judgement, whether FP decide to appeal and if that appeal is allowed or rejected.

 

You'll sleep well tonight.

 

[Myfamily]

Haha, hi slick, yes I think I will have a good sleep tonight!

[DonkeyB]

Some interesting stuff, and potentially a landmark ruling. Naturally, I have a few thoughts...

 

1. Fairness of fixed rate: If the judge simply removes the variable rate term and rules it’s now a fixed rate vehicle, then that is equally unfair. Both parties KNEW it was a variable rate mortgage. To remove that aspect is, I think, unfair in itself. What the judge should be asking for is evidence of why their rates were set so high in a falling market– which they will probably decline to say on commercial grounds. In the alternative, she should ask why a rate of c5% above BoEBR was OK initially, but not subsequently, or how far their cost of borrowing fell (they can only work this up to the point they stopped lending, I suppose – but then again, Barclays is the parent and their rates should be considered).

 

2. Likelihood of withdrawal to avoid precedent: Barclays won’t like this one bit. They do not want a precedent setting on this clause. I expect they may try and accommodate your situation on an out-of-court basis to avoid this continuing. While that would be good for you, it would be bad for others as no precedent would be set, but that’s not your concern. Now it’s out in the open, others can contest it or go to the OFT/FCA.

 

3. Proper legal representation: You are now in a position of some strength, although the financial result isn’t what I believe to be a fair one at present. I would strongly urge you to get specialist legal representation for the next stage. I can count a few legal companies that may consider taking this on a pro bono or reduced fee basis, as the prospect of setting such a precedent is a juicy one. Also, to try and take up further argument with the judge over the interest rate issue will take some knowledge of procedure.

 

4. What about the repossession part of the case? So where is this at? We still don’t know. As I said earlier, the judge may – depending on the figures – make a repayment order (such as a time order), or similar. She is clearly trying not to let them win the repo.

 

And, most importantly...

 

5. Well done! It takes some balls to represent yourselves in court. You got one over them... so far.

Edited October 18, 2013 by DonkeyB

[Surfer01]

Congratulations as I am sure that the result will have repercussions for them especially if the mis-selling regarding interest rate varying with BoE can be proved. I wonder if several or more sworn affidavits to this effect would sway a judge? If the variable rate is deemed unfair, basically we should have a refund instead of paying £70 per month for the next 8 years!

 

BTW I think why they went to court is because the price of houses is raising again so if they repossess they will not lose!

[Myfamily]

Hi Donkey,

You've given me a lot to think about! thank you for this. I agree that the judgement on the unfair term was good (as it did look like I was going to lose the whole thing at one point!!

I think I will have to wait the the judgement in writing which I suppose I'll get in a few days, I was making notes as she said it but, she was going at pace and all the legal jargon was a bit overwhelming!.

so once I've got that, I will be able to give a clearer explanation!

Thank you again for your help, I am just looking forward to a bit of a break while I wait for their re-calculation!

the judge dismissed my evidence that the advertising at the time was misleading because FP augured that they offer many different types of loans and rate and they could not be certain which one the advert I produced was for, I did try to fight this and told the judge that FP only supply secured loans which is true but for some reason she sided with them on that issue.

The part I have won (unless they win the right to appeal at the district judge and then actually win the appeal) is that section 7 on the contract is unfair.

I am waiting for my judgement and the further order, (as FP have to re-calculate what I should be paying now) and see if there is anything else in there that I missed, (i was so busy trying to write it all down at the time but it was so quick that I don't think my notes are all that clear,

but I do not that she concluded that the term was unfair and then wouldn't allow FP tp appeal. I did enjoy that as FPs' solicitor had told me twice during the day, before the trial and after lunch that there was no way the judge would make a decision on fairness!! She WAS NOT HAPPY! - but I was

[steampowered]

Very well done - a stunning result.

 

I am slightly surprised by the fixed rate stuff. I would have thought the 'unfair' bit would be the bank's ability to increase the rate beyond and above increases in the BOE base rate. I would have thought that the tracker concept itself should stay in place.

 

I understand a class action is being brought on fairly similar grounds in relation to buy-to-let mortgages (http://www.landlordtoday.co.uk/news_features/Landlords-plan-class-action-over-tracker-rate-rises).

[Myfamily]

I think its because the only part of the contract that was to do with varying the interest rate was removed from the contract so they have no right to vary it anymore in any way, I suppose a tacker would be a variation?

I will be able to give a proper answer once I get the judgment through the post.

[Ganymede]

Congratulations on your win.

 

If you want to report the case you will need to pay for a full transcript of the judgment, otherwise the decision will just be another unreported, persuasive ruling that won't benefit anyone.

[Myfamily]

Oh I didn't know that, can you tell me how I do this and any idea how much it is?

[citizenB]

http://www.ico.org.uk/~/media/documents/library/freedom_of_information/detailed_specialist_guides/court_transcripts_v1.ashx

 

 

I think you might need to speak to the Court the hearing was at. Almost certainly it will have been audio recorded and there is a list (the court will probably have one) of companies who are able to transcribe these (at a cost).

[Mike_hawk]

Typed a long post and the bliddy battery went on my phone....!

 

Short version would have been to wait on the other side to decide on appeal, if the numbers make sense for it to take a flyer on appeal it would want sight of the transcript. I'd be inclined to wait for now as it may end up bearing the cost.

[Myfamily]

Sorry, I think that's going to be too small, here it is again!