Swift Advances. Secured Loan Charges reclaim

[Sparkie1723]

I can inform members that Swift Advances are currently under investigation by the OFT as to their fitness to hold a Credit License. This is a quote from a letter a friend of mine received from the OFT as they had reported Swift on the way they operated.

 

sparkie

Quote

“As you are aware, the OFT can and does take action in the interest of consumers generally, where there is sufficient evidence. Therefore, we will continue to monitor this traders fitness to hold a credit license. Thank you once again for taking the time to write to us about this matter”

[Sparkie1723]

Hi overdone

My friends received exactly the same letter from the OFT when they first complained about them, it was after he sent another letter with further information he got the second one saying that the OFT were watching how Swift Advances were operating, everyone who is not happy with Swift should report them to the OFT, the more complaints they get the bigger the file on them will be and get the OFT to Act quicker.

 

sparkie

[Sparkie1723]

I am now helping the friends of mine against Swift Advances, because I believe that their agreement ( unregulated one) is completely unlawful and would be declared unenforceable.

They have made an absolute mess of the agreement and will not budge even though they were willing at first for Swift to alter it and lower the monthly payments.

 

But what Swift have attempted to do is explained in the letter I have written for them which has now gone.

They said they had applied for a possession order and the BXXXXXXS then

tried to pay off their First Mortgage with Abbey Bank without them knowing that is absolute unlawful and fraud by deception ….anyway I wrote this letter for them

I'll post a copy of their agreement on the next post.

 

sparkie

To

The Swift Legal Services

Ref IS/PI/GR1915/66838/A/JTR/1st

Dear Sirs,

 

We are in receipt of a letter from you dated yesterday 25th July 2008, within which you state that you have issued proceedings for an order to be made for the possession of our property namely xx xxxx xxxxx xxxx xxxxxx xxxxxx

We therefore await service of those court documents. Whilst we await these papers I will re-iterate our position, of which we have previously advised Swift Advances of, in all correspondence to them since April 2007, we have also made yourselves aware of many of the facts of our dispute with Swift Advances.

We have after making Swift Advances totally aware of our disagreements, taken every possible step a consumer can take in attempting to resolve the issue to no avail, the intransigent stance of Swift Advances and their abuse of their position, led us to make a complaint to the OFT, and finally to suspend all further payments on this agreement.

We have been forced to take this step due to this intransigence.

We have attempted to persuade Swift Advances to “ Put the Agreement Right” after pointing out that we believed it was an unenforceable agreement as it stood, and we were quite willing to have the agreement redrawn and the monthly repayments corrected, all to no avail.

That is no longer an option since the latest actions taken by Swift, to which, I will refer to later on in this letter.

In any court proceedings taken by either party to this agreement we will make the court aware of the following;

1.…..On entering the said agreement, we were led to believe that we had entered an agreement for a loan of the sum of £43,000:00 ( the total loan) repayments of which were to be over a period of 120 months at a rate of interest, although, it is unclear what the rate on this £43,000:00 ( the total loan) actually is, as it is not shown in the key information box where it should be in order to comply with the form and content of consumer credit agreements.

Having said that we accepted the rate shown elsewhere on the agreement. It is for this reason we believe that the monthly payments are incorrect.

2.…..We were led to believe that we could rely on Swift Advances and placed our full trust in Swift Advances to ensure that the monthly repayments were accurately calculated and correct, we have since discovered that they are not, and have attempted to have them corrected, we were quite willing to have this done.

3.…..We were also led to believe that Swift Advances would carry out what they stated they would do in section 3 at the bottom of the agreement, in the section “You should note the following”.

4.…..We were led to believe that this had been done in the letter of advise dated 4th April 2007.

With reference to the above 4 points we submit that we were misled and deceived into entering into this agreement by the misrepresentative statements made in the agreement and in the letter referred to.

We also submit that the conduct of Swift Advances in the operation and performance of the agreement has been far beyond reasonable behaviour and that Swift Advances have abused their position in all aspects of it refusing to even consider that they have made serious mistakes on the agreement, and further stated that there are none.

We submit that by failing to adhere to what is stated in the agreement Swift Advances breached the agreement at inception, and have voided the said agreement in doing so, by not doing what they said they would do, and not doing what they say they had done.

Furthermore by submitting incorrect financial details to all three credit reference agencies, have breached the Fourth Principle of the Data Protection Act 1998, which states;

“Personal data shall be accurate and, where necessary, kept up to date”

“Data are inaccurate if they are incorrect as to any matter of fact”.

Without doubt the data supplied by Swift Advances concerning the financial details of the agreement is inaccurate.

Swift Advances then proceeded and issue two separate default notices, these notices also contained inaccurate information and do not comply with the OFT guidelines of the format of default notices and are therefore invalid.

I now come to the latest actions of Swift Advances that are not only unacceptable, but are an absolute unlawful total abuse of power and position, another breach of the Data Protection Act namely the First Principle.

It is also an invasion of our rights to privacy under Article 8 of the European Convention on Human Rights, (the right to privacy of home life and personal correspondence) which is also embedded in the UK Human Rights Act.

I refer to the attempt by Swift Advances to obtain information from Abbey Bank our first mortgage holder about our mortgage, information that they have no right to request or obtain.

His was closely followed by a further attempt to obtain a redemption figure for that said mortgage with Abbey Bank.

In a letter received also today from Abbey Bank, they appear to believe that we have requested a redemption figure and have supplied us with that redemption figure and details of how it can be redeemed.

On contacting Abbey Bank this morning and explaining that we had made no such request, we were informed that Swift Advances had made the enquiry who stated they were making it on our behalf, that is totally untrue, and is a totally false statement made to deliberately mislead Abbey National. We have made that perfectly clear to Abbey Bank no such request was made to Swift Advances and no authority given.

They have advised us that they have not, and will not supply any details of our mortgage to any third party without the specific signed consent of both myself and my wife

They have also advised us that they have made it quite clear to Swift Advances that they have no authority to request such information.

They have also advised us that they have added a note to our file of this fact, and the records of these enquiries by Swift Advances.

They have also confirmed that should we request the details of these enquiries they will supply official details and confirmation of such.

They have also advised us to make serious strong complaints to the necessary various bodies, such as the ICO, the OFT, the FLA, and the FSA.

This I can assure you I will be doing and sending each authority a letter containing all I have submitted to you.

With reference to the OFT, as I have already submitted a complaint to them about Swift Advances and have had replies and that my complaint has been allocated a complaint number, I am certain that this latest series of incidents will certainly be of interest to them, and will be added to my complaint file, I quote from a letter from the OFT dated 21st September 2007

Quote

“As you are aware, the OFT can and does take action in the interest of consumers generally, where there is sufficient evidence. Therefore, we will continue to monitor this traders fitness to hold a credit license. Thank you once again for taking the time to write to us about this matter”

I will let you draw your own conclusions from this, but it does appear that Swift Advances are already under scrutiny from the OFT.

 

I submit that the judge on reading this letter from the OFT, will consider our evidence and submissions more deeply and put them under very close scrutiny .

I am sending this letter as an e-mail attachment, I will also be sending a copy by recorded delivery.

I suggest that Swift Advances act on this letter as their name suggests “swiftly”

I will with hold my letters of complaint to all the afore mentioned bodies, and put the following to Swift Advances, that they;

1... Cancel the agreement immediately, and write the sum of £43,000:00 off.

2...Cancel the land registry charge details on our property.

4...Return all monies paid by us to date, plus interest at initial contract rate 9.84%.

5...Offer a substantial sum of further compensation for the incorrect entries on our credit files and the damage that data is causing to our credit score and financial credibility, the further intrusion into our financial affairs with Abbey Bank and for the deceptive methods used by Swift in the attempts to obtain that information from Abbey Bank .

6...Remove immediately and completely all data and information supplied wift Advances from the files of all three credit reference agencies. This incorrect data is causing us both distress alls and vexation.

7...That all this is done within 7 days of the date of the receipt of the recorded delivery of this letter.

Failure to do all of this will result in us taking action via the courts to obtain all of the above without further warnings.

In our submissions to the court we will submit that the actions taken by Swift Advances concerning Abbey Bank, by attempting to redeem our first mortgage without our knowledge and consent were nothing but a malicious, secretive attempt to obtain sole ownership of our property, and an attempt to do this by deception stealth, and covert unlawful actions.

We will submit that this was an act to gain an extremely advantageous position to gain possession of our home, and place us in a very serious disadvantageous position that can only be described as an act of deliberate fraud by false representation and deception.

We believe that all our submissions placed in the hands of learned Counsel, will result in Swift Advances will be severely dealt with by the Court, and the agreement will be declared void.

Swift Advances can avoid this by agreeing to the proposals in the paragraphs numbered 1 to 7

Finally in line with the box headed on the agreement….. Important --Use of your personal Information

Will you arrange for a copy of this signed form as stated in that box to be sent to us for our records , as we have never received one

Yours sincerely

Edited July 30, 2008 by Sparkie1723

[Sparkie1723]

 

 

Edited July 30, 2008 by Sparkie1723

[Sparkie1723]

it never entred my head, when I sold my house to pay off my secured loan to check that the interest rate was what should have been charged along with early penalty charges. I would not know where to begin.

 

You can still do it matey if you kept a copy of your Swift agreement and claim any over payments back

 

sparkie

[Sparkie1723]

You really sound as if you know what you are doing. But I have a feeling my credit agreement looks very familiar. Can you suggest what I should do, or if you could recommend solicitors who may help. I work a 44 hour week, and have a poorly husband,s o any help would be appreciated.

 

Hi Blackie,

 

Compare the agreements closely, check to see if they added the fees and charges "OUTSIDE" the agreement i.e. is the total loan shown in the top box less than the start total entered on your credit file on Swifts first entry, is it different?

 

Hope you can follow what I mean

 

sparkie

[Sparkie1723]

Swift have sent my friends a application for possession on their house,

 

I have drafted a defence for them and they had a free consultation with a solicitor and showed "her" the draft defence and asked if she would represent them.......she said what do need a solicitor for with that defence:cool:....that was nice of her.

anyway here 's what Ive drafted for them don't know what has happened to some bits in the post ..for some reason can't chage the size ...hope it can be followed.sparkie

 

 

DEFENCE

 

 

1 The Defendant’s admit that on the 4th April 2007 they entered into an unregulated loan agreement with the Claimant for the sum of £4300:00 which is shown and stated to be the total loan amount as shown in the Key Financial Information box shown on the said agreement listed as exhibit 1 attached to Claimants statement 1.This loan was secured by a charge on their property, namely XXXXXXX XXXXXXXXXXXX XXXXXX

 

 

2 The Defendant’s submit that they were led to believe that the rate of interest at the start of the loan was 9.84% APR, although as it is not shown in the Key Financial Information box and due the fact that the Claimant states in paragraph 6 (g) (i); of the Particulars of Claim that the interest rate at the start of the loan was 10.5% APR. The Defendant’s submit that these conflicting rates are not clear by any means and are now even more confused than they were prior to this claim and therefore put the Claimant to strict proof as to which rate actually applied at the start of the loan.

 

 

3 The Defendant’s submit that;

(a) Even if either of these rates were applicable at the start of the loan shown as the “total loan” on the said agreement the monthly payment would not be £616:32 per month.

 

(b) Had the rate been 9.84% as shown on the agreement the monthly payment would have been £554:45 and;

 

© Had it been 10.5% as stated by the Claimant it would have been £578.68 per month.

 

(d) The monthly repayments shown to be payable on the agreement for the total of £616.32 for the stated “total loan amount” calculates at 11.84% APR or thereabouts.

 

 

4 The Defendant’s submit that immediately on realising these initial figures and calculations were incorrect, they contacted the Claimant pointing outthe errors and requested that they be re-adjusted, and were quite willing to have that done, and submit a copy of a letter from the Claimant refusing to do this, attached to this Defence marked as Document A.

 

 

5 The Defendant’s refer to again to this document wherein it is also stated That, the agreement follows the format of a regulated credit agreement and contains no mistakes, is incorrect and misleading as it does not follow the form and content of a regulated agreement, and submit it does contain serious mistakes.

 

 

6 It is also submitted that the Claimant did not abide by the condition J2 in the terms and conditions of the agreement, by failing to advise them (jointly or separately) of the increase of interest that is stated in paragraph(b) of the Claimants Particulars of Claim, prior to August 2007, to the fact that it is now 13.5% and submits that as a copy of this notification is not included in the supporting documents attached to the claim, supports the Defendant’s submission, that no such notice was given. In any event t his is an increase of 3.56% in 4 months or thereabouts, and is an increase of nearly 1% per month. When in fact the LIBOR interest rate to which, according to the Claimant, the agreement is linked in the period from April 2007 to April 2008 has only risen by 1%

 

 

 

7 The Defendant’s submit that the production of a copy of such a notice should be considered unacceptable and inadmissible, as it would be quite easy to conjecture such a notice at any given time.

 

8 The Defendant’s refer again to the Claimants Particulars of Claim and to paragraph 6 (a) which states that the amount loaned was £46,995.00 and aver that is not the sum shown as the loan total on the agreement.

 

 

9 It is submitted that it is the Claimant that was/is in breach of the agreement long before any “alleged” breach by them and that the Claimant just went ahead and increased the interest without warning or explanation.

 

 

10 The Defendant’s submit that they have attempted by way of many letters and correspondence to resolve the dispute, but have been met with complete intransigence from the Claimant and complete rebuttal.

 

11 We refer to the Default Notice shown as exhibit 3 of the Claimants statement, and respectfully ask the court to declare it invalid for the following reasons;

 

(a) That we submit as it is the Claimant that is in breach of the agreement by failing to adhere to condition J2 of the agreement in August 2007, the Default notice cannot be acceptable in those circumstances plus

 

(b) That the financial details contained in the said Default Notice are incorrect in that;

(i)The “total loan” sum stated in the Default Notice is stated to be £46,955:00, this is not what is shown as “the total loan” on the credit agreement

 

(ii)The “alleged arrears” two months at £613:32 do not total £1264:02

 

 

12 The Defendant’s submit that it is their belief the details contained in a Default Notice must be 100% correct, and submits that under Consumer Contract law cannot issue and enforce an agreement with a default notice is served that is correctly worded and contains correct and accurate relative financial information.

The Defendants submit that paragraph 1 of that afore said notice appears to relate to a fixed sum monthly payment over a fixed period of years at a fixed rate of interest.

 

 

13 It is submitted that every possible means have been taken by the Defendants to resolve the issues regarding the agreement and to have it “put right” pointing out that the Claimant has been and still is, wrong in all their actions, all have been to no avail, and that the Claimants have been force to “suspend” the payments, in a last ditch attempt to make the Claimant realise that their actions are unfair and that they have abused their position.

 

 

14 The Defendant’s attach as Document B the last letter written by them to the Claimant in reply to notification that the Claimant had issued proceedings against them and respectfully ask the Court to consider the contents of this letter as part of their Defence pleadings.

 

 

15 We refer to the section headed “You should note the following” in the Loan Agreement listed as exhibit 1 in the documents in support of Claimants statement Number 1, paragraph 3, which states what the Claimant would do and what was agreed to be done, a copy of which is attached to this Defence for ease of reference as Document C. Also attached is a letter, listed as Document D from the Claimant stating that this had in fact been done. The Defendants submit that they were misled into believing that the fees would be taken from the total loan amount, as they had already been included in that amount and that is what they believed had been done.

These facts had been misrepresented to them, as it had not been done and submits that under the Misrepresentation Act 1967.

 

“A Misrepresentation is a false statement made during the negotiations of a contract which induces the representee to enter into a contract.

 

 

The result of a finding of misrepresentation is that the contract is voidable. This means the contract exists but may be set aside at the instance of the innocent party. The remedies available are rescission and or damages depending on the type of misrepresentation (fraudulent, negligent or wholly innocent). Rescission is putting the parties back into their pre-contractual position. The right to rescind may be lost in certain circumstances. To be an actionable misrepresentation certaincriteria must be satisfied: There must be a false statement of fact as opposed to a statement of opinion”

 

 

16 The Defendant’s have since concluded that the Claimant has added these sums to the agreement “total loan” outside the terms and conditions which the Defendant’s submit is unlawful, and in doing so not only breached the agreement but made the agreement totally unfair andunworkable, the Defendant’s therefore call into question the Claimants powers to carry out these actions and the Claimants conduct in attempting by abuse of this position and power to force them to accept these extra additional charges to unjustly force more monies out of them than that which is stated in the agreement.

 

 

17 The Defendant’s submit as Document E a letter received from the Office of Fair Trading showing that the Claimant is being monitored by that Office, for what can only be presumed the same type of actions taken against others that have been taken and actioned against the Defendants

.

 

 

18 The Defendants submit a copy of page 2 of a letter received from the Claimant, listed as Document F that states in paragraph three and confirms that the various fees are added to amount of credit to arrive at the “total sum” borrowed, this means that the fees that are shown in the OtherFinancial Information box are/were included in the total loan sum as we were led to believe before signing the agreement.

 

 

19 The Defendant’s aver that it is the Claimant who breached the agreement on inception, by adding these fees again “outside the agreement” and is an action taken with the intent to commit fraud by deception and is a deliberate attempt to extort a further £3,955 plus interest over the period of the loan agreement which calculates at £ 7010:40.

 

20 The Defendants refer to Lord Denning’s explanation of fraud by concealment and quote;

 

“Like the man who turns a blind eye. He is aware that what he is doing may well be a wrong, or a breach of contract, but he takes the risk of it being so. He refrains from further inquiry least it should prove to be correct: and says nothing about it. The court will not allow him to get away with conduct of that kind. It may be that he has no dishonest motive: but that does not matter. It is not necessary to show that he took active steps to conceal his wrongdoing or breach of contract. It is sufficient that he knowingly committed it and did not tell the owner anything about it”.

 

The Defendants submit that the Claimant knew full well that the fees stated in the other financial information box had been included in the total loan and yet have added them again in the hope it would never be discoverd.

 

 

S2(1) of the Misrepresentation Act 1967

Negligent Misrepresentation

For negligent misrepresentation the burden of proof rests on the representee to show that they had reasonable grounds for believing it to be true. This can be a heavy burden to discharge

 

A statement as to future intention is not a false statement of fact unless the at the time of making the statement the representor had no intention of carrying out the stated intent:

 

21 The Defendants also wish to challenge the agreement under the Unfair Relations in Consumer Credit Agreements.

 

 

Unfair Relations in Consumer Credit Agreements

The new provisions will apply from 6 April 2007 in relation to credit agreements entered into after then. For agreements made before that date, the provisions will apply from 6 April 2008 unless the loan has been repaid by then. (The Secretary of State is empowered to extend this transitional period, and there may be further consultation on this.)

There is a widely held misconception that the Consumer Credit Act only applies to “regulated agreements.” On the contrary, although many of the provisions of the Act apply to regulated agreements, others apply equally to non-regulated agreements (such as exempt agreements and - until this limit is abolished - agreements for credit exceeding £25,000). The new provisions apply to all consumer credit agreements other than FSA-regulated mortgage contracts.

 

22 The Defendants Agreement is stated to be a non FSA regulated mortgage agreement and so falls within the scope of Unfair Relationship.

 

 

If a court finds a relationship is unfair to the borrower it can do a number of things. For example, it may require repayment of sums already paid by the borrower, or the reduction of any sum payable by the borrower in the future. It may require the release of any security, or the alteration of the terms of the agreement or any related agreement. Or it may require the lender or any associate of it to take, or to refrain from taking, any particular action.

 

23 The Defendant’s further submit that they cannot be held in breach of an agreement that is already in breach by the first party.

 

Data Protection Act 1998 Legislation

 

24 Under the Fourth Principle of the Data Protection Act 1998 “data must be Accurate and, where necessary kept up to date” and that “data are inaccurate if they are incorrect or misleading as to any matter of fact”

 

 

25 The Defendants submit that by passing information to all three CreditReference Agencies (CRA’s) that the initial loan amount was £46.955 are in breach of this principle it follows that all the monthly updates sent to the CRA’s is also incorrect and misleading.

 

 

26 Under section 13 of the afore said Act an individual is entitled to claim compensation for damage and distress, and that damage includes financial loss. The Defendants aver that they have both suffered financial loss in the forced extra payments that have been made on the loan.

 

 

27 The Defendants again further aver that as it was the Claimant that breached the agreement at inception, all terms and conditions applicable to the agreement and the land registry charge have been made null an void by the Claimants breach/breaches.

 

 

 

Statement of truth

 

 

The Defendant’s respectfully ask the honourable Court to order that the agreement be declared an unfair contract for all reasons given in this Defence, and strike out the Claimants application and further order that the Claimant;

 

 

1... Cancel the agreement immediately, and write the sum of £43,000:00 off.

 

2...Cancel the land registry charge details on our property.

 

3...Return all monies paid by us to date, plus interest at initial contract rate of

9.84%

 

4...Order the Claimant pay a substantial sum of further compensation for the incorrect entries on our credit files for the damage that data is causing to our credit score rating and financial credibility, as those files now show 3 months late payments,

 

In the Court of Appeal ruling, Kohporar v The Woolwich, 1996 Lord

Birkenhead stated;

 

 

Quote.

“The credit rating of individuals is as important for their personal transactions, including mortgages and hire-purchase as well as banking facilities, as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in holding that what is in effect a presumption of some damage arises in every case”.

Lord Birkenhead goes on to say“and I would uphold the master's award of general damages of £5,550”.

 

The National statistics office have translated £5,500 equates to some

£8,400 as at 2008. ( Durkin V RSG and HFC Bank Ltd April 2006)

 

5…Order the Claimant pay further exemplary damages for the unlawful intrusion into our financial affairs with Abbey Bank our First Mortgagee and for the deceptive methods used by Swift in the attempts to obtain that information from Abbey Bank, as this action was not only another breach of the Data Protection Act legislation but a breach of our rights to privacy to home life and personal correspondence under Article 8 of the European Convention on Human Rights which is embedded in the Human Rights Act of the UK, on the grounds that any and all authority the Claimant thought it had to make those enquiries had been nulled by the intitial breach by the Claimant of the agreement on the 4th April 2007

 

6...Order the immediate removal of all data and information supplied by Swift Advances from the files of all three Credit Reference Agencies

 

7…That the Claimant be responsible for all costs of this hearing.

Edited August 3, 2008 by Sparkie1723

[Sparkie1723]

Brilliant! But how did you know what the monthly payment should have been? I took my swift mortgage at face value and repayments quoted. Mine came to about £470 a month when I remortgaged to £43,000. Supposed to be 25 years at 9.5%.

 

 

Hi overdone,

 

I just checked for them when they asked me if I thought they were paying too much,

I logged on to loan calculators and put the amount in at the apr being charged and lo and behold it all sprung to life £ 43000 @ 9.84 doesnt work out to £ 613 quid plus they were getting done real proper.

 

sparkie

Edited October 5, 2008 by Sparkie1723

[Sparkie1723]

HI again overdone

 

Your repayments per month should have been £ 375:69....definately not £470 it looks as if they have done exactly the same to you added the Brokers fees TWICE.

 

sparkie

[Sparkie1723]

Not sure if the mods will leave this on this thread but its a good summary of what the unfair relations is about, and a useful bit of info I think.sparkie

Executive summary

• After 6 April 2007 borrowers can challenge lenders on credit agreements if they feel they have been treated unfairly. For agreements made before that date, the provisions will apply from 6 April 2008 unless the loan has been repaid by then.

• The new provisions apply to all consumer credit agreements other than FSA regulated mortgage contracts.

• The borrower making the claim that a relationship is unfair will have to show that there is an arguable case. However, it is up to the lender to prove that it is not.

• The consultation paper does not contain any formal guidance on the exact meaning of the unfair relationship test. Regulators such as the OFT and FSA point out that only the courts can decide.

• An unfair relationship may arise due to unfair contract terms, interest rates and other charges, breaches of current and future law, breaches of guidelines and regulation.

The new unfair relationship provisions - implications for business regulated and unregulated by the Consumer Credit Act

New ‘unfair relationship’ rules are intended to make it easier to challenge unfairness in relation to credit agreements.

From 6 April 2007, these provisions – with one limited exemption - will apply to all new credit agreements with individuals, irrespective of the amount of the credit being provided1. This includes agreements with sole traders and partnerships with three or less partners. They will not apply to hire or lease agreements (but will, for example, apply to hire-purchase and conditional sale).

For agreements made before 6 April 2007, the new rules will apply from 6 April 2008, unless the relevant agreement has been completed before then.

Why should this matter to creditors?

These changes are significant for creditors because where a court determines that a relationship is unfair, it can make a wide range of orders.

Among them are:

· requiring repayment of all or part of any sum paid by the debtor or any guarantor by virtue of the agreement or any related agreement2;

· requiring the creditor to do or not do anything specified in the order in connection with the agreement;

· setting aside all or part of any obligation of the debtor or any guarantor as a result of the agreement or related agreement;

· altering the terms of the credit agreement;

· directing the return of property given as security for the agreement.

The unfair relationship provisions – which are wider in scope and give the courts more discretion - will take the place of the existing “extortionate credit bargains” under the Consumer Credit Act.

The Office of Fair Trading recently published guidance (available on its website) indicating how it expects the unfair relationship provisions to interact with its own powers under the Enterprise Act. Under these powers, the OFT can bring proceedings against businesses that breach their legal obligations and by doing this harm the collective interests of UK consumers, whereas the unfair relationship provisions are a route for individuals themselves.

Although recognising that it is ultimately a matter for the courts, this guidance gives examples of conduct and practices which the OFT considers could contribute to or give rise to unfair relationships.

How will a court determine whether a relationship is unfair?

A debtor or surety (such as a guarantor) can invoke the court’s powers to determine whether a relationship is unfair. The debtor or surety can make an application without any existing proceedings.

Alternatively, an order can also be made at the instance of the debtor or a surety where there are court proceedings between the debtor and creditor: (a) relating to the enforcement of the agreement or any related agreement; or (b) where the amount paid or payable under the agreement or any related agreement is relevant.

When a debtor or surety alleges an unfair relationship, it is for the creditor to prove to the contrary.

There is no precise definition in the legislation of what is an “unfair relationship”. A court can determine that the relationship arising out of the credit agreement (or the credit agreement taken with any related agreement) is unfair to the debtor because of any one or more of the following:

· any of the terms of the agreement or any related agreement. This could include terms requiring the debtor to pay a disproportionate amount as compensation for his breach (for example by way of default charges or termination sums);

· the way in which the creditor has exercised or enforced any of its rights under the agreement or any related agreement. This could include heavy-handed debt collection practices;

· any other thing done (or not done) by or on behalf of the creditor before or after the agreement (or any related agreement) was made. This could include the nature of the creditor’s advertising, misrepresenting the terms of the contract or applying unreasonable pressure on the debtor to sign it.

The court can take account of all matters it thinks are relevant. It is likely that the courts in determining unfairness will look to the meaning of ‘unfair’ in other legislation, such as the Unfair Terms in Consumer Contracts Regulations 1999. If so, they are likely to look at whether there is a significant imbalance between the parties rights and obligations to the individual’s detriment and also whether there is generally fair dealing. Not every one-sided provision in an agreement will necessarily lead to there being an unfair relationship.

A particular concern is the scope for conflicting court decisions given the breadth of the discretion and lack of a categorical definition of what is an unfair relationship.

Only time will tell whether debtors will use these new provisions any more widely than the current extortionate credit bargains have been. However, creditors would be wise to review the terms of their credit agreements and their operations in light of them.

1 This exemption includes consumer credit agreements secured by a land mortgage where the creditor is making the agreement as a regulated activity under the Financial Services & Markets Act 2000 and certain home purchase plans.

2 A related agreement includes (among other things) a credit agreement consolidated by the main agreement and security provided in relation to the main agreement

 

[Sparkie1723]

Initially, I used a broker but for the 2 remortgages I did not. £100.00 fee only was added each time I arranged a remortgage.

 

 

Don't know what happened there without more info but your repayments were about £100 a month too much, no doubt about that was your first loan through the broker with Swift?...because if it was thats where the big fees come in and would have carried over through the settlement figures...something like that.

 

 

 

sparkei

[Sparkie1723]

Hi overdone,

 

£47,200

monthly int rate 0.83%

mortgage rate equivelent 9.96%

No of Monthly repayments 300

Monthly payment £428.74

 

 

Unfortunately your payments are correct on the figures above.

 

sorry mate,

 

sparkie

[Sparkie1723]

Thank you Sparkie.

 

Which of the following can I claim a refund on?

 

Original Loan .. .. .. .. .. .. .. .. .. .. .. .. .. £47,125.00

Interest charged .. .. .. .. .. .. .. .. .. .. .. £14,990.58

Less payments received .. .. .. .. .. .. .. .. £14,164.15

 

Sub total .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. £47,951.43

 

Arrears Letters & call charges .. .. .. .. .. ..£ 598.00 ..............Claim these

Bounced payment charges .. .. .. .. .. .. .. ..£ 33.00 .............. """"""""

Redemption request charges .. .. .. .. .. .. ..£130.00 .............. """"""""

Other Letter Charges .. .. .. .. .. .. .. .. .. .. £175.00.............. """"""""

Default Charge .. .. .. .. .. .. .. .. .. .. .. .. ..£250.00 ............. """"""""

Post default collection costs .. .. .. .. .. .. ..£490.00............. """""""""

 

They will have to justify these charges in that they are true costs and not penalties

 

Sub total .. .. .. .. .. .. .. .. .. .. .. .. .. ..£49,627.43

 

Sealing /discharge fee .. .. .. .. .. .. .. .. .. .£250.00

Early settlement interest charged .. .. .. ..£2,772.32

 

Redemption figure .. .. .. .. .. .. .. .. .. .£52,649.75

 

sparkie

 

 

 

[Sparkie1723]

I thought as much but I have only claimed four of those you say I can claim on. Out of court, I would be quite happy with £1371.00 I put in for. Novice that I am. Is it likely they will not bother to turn up for court as the amount is still low?

Can I claim my own costs too?

 

In small claims you can only claim personal expenses for the day which is I think £50 maximum.

 

One other thing matey we are ALL novices.

 

sparkie

[Sparkie1723]

Well I think you are a Lit in Person of sheer genius.

 

 

Thanks for that compliment mate ....sheer .....I might be ................genius ....no chance.

Thanks again

 

sparkie

[Sparkie1723]

4 August 2008

 

Dear Overdone,

 

Your complaint

Former agreement Number PAxxxxxxxx

 

I am sorry to hear of the details of your complaint as set out in your letter dated 30 July 2008 which I received on 1 Aug 2008.

 

My understanding is that you are unhappy with the fees and charges applied to your account.

 

I am currently investigating the issue under our complaints process (see attached leaflet) and will reply more fully by August 2008 at the latest.

 

In the meantime, if you have any further questions or concerns, please contact me.

 

Yours sincerely

 

Tom Strickley

Compliance officer.

 

 

Send a complaint in to the OFT

the more tha do this will make the OFT do something about them. Make sure you tell Swift you are making a complaint, they've already been tld they are being watched by my friends, it might help you get them to pay you out quicker to stop the OFT file on them getting bigger.

 

sparkie

[Sparkie1723]

My Friends have engaged a Counsel to act in their defence and have given me permission to post their defence looks like Swift may be in a bit of bother trying to gain possession of their house.

sparkie

____________________________

DEFENCE

____________________________

1. Paragraphs 2, 4, 8 and 9 of the Claimant’s particulars of claim are admitted.

2. Paragraph 3 and 10 of the Claimant’s particulars of claim make no express assertions and the Defendants therefore make no response.

3. Paragraphs 1, 5 and 11 of the Claimant’s particulars of claim are disputed. Please see paragraph 10 below.

4. Paragraph 6a of the Claimant’s particulars of claim is denied. The amount they believed they had borrowed was £43,000.00, as detailed in the “total” box on the signed agreement form. (please see exhibit WG1).

5. Paragraph 6b of the Claimant’s particulars of claim is admitted save that the current APR is disputed and the Claimant is put to strict proof.

6. Paragraph 6c of the Claimant’s particulars of claim is neither admitted or denied and the Claimant in put to strict proof of the figures alleged including fully explained calculations, schedules of costs and outstanding balances.

7. Paragraph 6g is denied. The interest figure at the start of the mortgage was believed to be 9.84% as stated in the signed agreement form in the box titled “rate of interest” (please see exhibit WG1).

8. No interest rate is included in the ‘key facts’ box of the agreement.

9. The Defendants have been informed by letter of one change to the interest rate, increasing the rate by 0.35%.

10. The Claimant’s right of possession in relation to xxxx xxxxxx xxxxxx xxxxx xxxx xxxx (The Property) is only actionable if the Defendants are in breach of the agreement dated 4th April 2007. The Defendants deny they are in breach of the agreement. They have withheld the four most recent loan/mortgage repayments, totalling £2,528.04 for the following reasons

i. They believe the contract is void through misrepresentation.

ii. Further or in the alternative the Claimants are in breach of contract.

iii. Further or in the alternative the Defendants will say the relationship between the Claimant and themselves was unfair and the terms of the agreement were unfair and wish to rely on Sections 140A and 140B of the Consumer Credit Act 2006.

iv. No adequate response or explanation to the questions and concerns raised in correspondence has been received from the Claimant.

_____________________

COUNTER CLAIM

_______________________

11. Paragraph 2 of the Claimant’s Particulars of Claim are repeated.

The Part 20 Defendant’s misrepresentations:

12. In negotiating the above loan/mortgage the Part 20 Claimants were specifically led to believe by the Part 20 Defendant’s agents that all costs in relation to the loan would be deducted from the £43,000.00 they asked to borrow.

13. The Part 20 Claimants had initially been led to believe by their broker that the interest rate was to be 7.8%. When they signed the agreement dated 4th April 2007 they believed that the increase in interest rate was to cover the costs involved in the loan.

14. The Part 20 Claimants discovered they had actually been lent £46,955.00 when they checked their credit file with CRA’s on line (please see exhibit WG2) under their normal check of their files, this was confirmed only when they received notification of the arrears exhibited as WG3 The costs of the loan had been added on to the £43,000.00 rather than deducted from it.

15. When the Part 20 Claimants received the loan agreement document and based on that document, they were led to believe the rate of interest applicable to the loan was 9.84%. This figure is the only interest figure detailed on the signed agreement form. They were led to believe this figure applied to the total loan. No other interest figures were disclosed.

16. However, contrary to the signed agreement the Part 20 Defendant has pleaded that the applicable rate of interest is 10.3% from the beginning of the agreement.

17. As a result of the Part 20 Defendants and or their agents misrepresentations the Part 20 Claimants have been misled into borrowing more money and at a higher rate of interest than they believed they were borrowing.

The Part 20 Defendant’s breach of contract:

18. The Part 20 Claimant believed they were borrowing a total amount of £43,000.00. In breach of the signed agreement they were in fact lent £46,955.00.

19. Within the first two months of the agreement the Part 20 Defendant informed the Part 20 Claimant of an increase of 0.35% to the interest rate.

20. The Part 20 Claimants wrote to the Part 20 Defendant asking them to explain the reason for the increase and pointing out that the Bank of England rate had only increased by 0.25%. Please see letter exhibited as WG 4.

21. It was at this point that the Part 20 Claimants checked the calculation on the payments they had been making, on average £632.01 per month. Please see attached schedule marked WG5. As the Part 20 Claimants understood the loan/mortgage agreement, £43,000 on an interest rate of 9.84% over 120 months they calculated the monthly repayments should be £564.45.

22. No satisfactory response has been received explaining the reason for the interest rate increase and how monthly repayments were calculated.

23. By lending the Part 20 Claimants more money than was agreed the Part 20 Defendant is in breach of the agreement dated 4th April 2007.

24. By charging monthly repayments greater than what had been agreed and at a different rate of interest than had been agreed the Part 20 Defendant is in breach of contract.

The Claimant’s breaches under the Consumer Credit Act 2006:

25. The Part 20 Claimants assert that leading up to and from the formation of the agreement dated 4th April 2007 the relationship between the parties was ‘unfair’, as defined under sections 140A and 140B of the Consumer Credit Act 2006.

26. The Part 20 Defendant’s misrepresentations in relation to the amount of money lent and the interest rates applicable to the loan were unclear and not properly explained.

27. The Part 20 Defendants documentation and correspondence are unclear, ambiguous and fail to comply with industry standards. Consequently this has put the Part 20 Claimants at a marked disadvantage in trying to resolve this dispute.

28. Further, the manner in which the Part 20 Defendant has attempted to enforce the agreement is unfair and heavy handed.

29. The Part 20 Claimants requests the agreement be rescinded.

30. Further the Part 20 Claimants seek damages in relation to the above, and also in relation to false information supplied to credit reference agencies as a result of this dispute.

31. The Part 20 Claimants claim interest on any amount found to be owed to them pursuant to section 69 the County Courts Act 1984.

WHEREFORE the Part 20 Claimants claim

1) The contract rescinded

2) Damages

3) Interest

[Sparkie1723]

Considering the Barrister went off my notes he has got the picture well I think ...just have to and see how things go fingers crossed for them anyway.

 

sparkie

[Sparkie1723]

On 22 August I wrote to the OFT. No reply. Are they still at Fleetbank house?

Hi mate

My friends did'nt get a reply for over a month from the OFT.

 

Another thing in their case Swift issued a possession order on them for two months arrears......if you can post their apology .... removing all your identification it would assist them a lot in fighting the possession case

sparkie

[Sparkie1723]

Has anyone else got the same agreement as my friends shown on post 12.

 

Because if it does not show the Total Amount of Credit and/or the APR in the KEY FINANCIAL information box....it is absolutely unenforceable.

The total amount of credit and APR are specified terms under the Consumer Credit Agreement Regulations and....MUST BE SHOWN IN THAT BOX........If they aren't then the the following rulings apply.

 

sparkie

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be side-stepped by recourse to a pledge or other form of security furnished in support of the debtor's obligations under the agreement. The security is not enforceable to a greater extent than the loan: section 113. Where an application for an enforcement order is dismissed, except on technical grounds only, or the court makes a declaration under section 142 that the agreement is not enforceable, any security provided in relation to a regulated agreement 'shall be treated as never having effect': section 106(a). Property lodged with the creditor by way of security has to be returned by him 'forthwith'.

 

Taken from Wilson v First Counties Trust

 

The creditor – by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms – must (in the light of the provisions in sections 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid

 

Most of Swift Advances Secured Credit agreements are unlawful, and since 2008 they have been drawn into regulation of the Consumer Credit Act 2006.....because they are nonregulated FSA mortgages

[Sparkie1723]

Great work Sparkie as usual.....i'll post in response soon !!!

 

Thanks 42man and for the rep mark.

 

Hope this will be good ammo for members.

 

There must be hundreds of agreements in existance of Swifts that are the same as my friends, and are unenforceable ....if there is....Swift could be in big trouble if the holders of these agreements are made aware of this, they will be be swamped with claims ....serves them right I say for being such heavy handed arrogant people, bludgeoning their way through legislation and taking no notice of it.

It follows that all information supplied to CRA's about these agreements should be deleted.

 

sparkie

Edited October 6, 2008 by Sparkie1723

[Sparkie1723]

Can I ask a very relevant and important question to all Swift Customers in dispute with Swift.....it is an important one and very relevant

 

Is there anyone who has not been provided with a proper statement of account on their loans with Swift .....from 2006 to date. Anyone not had one???

 

 

sparkie

[Sparkie1723]

For all to read and digest

 

sparkie

 

After section 77 of the 1974 Act insert—

“77A Statements to be provided in relation to fixed-sum credit agreements

 

(1) The creditor under a regulated agreement for fixed-sum credit—

(a) shall, within the period of one year beginning with the day after the day on which the agreement is made, give the debtor a statement under this section; and

(b) after the giving of that statement, shall give the debtor further statements under this section at intervals of not more than one year.

(2) Regulations may make provision about the form and content of statements under this section.

 

6) Where this subsection applies in relation to a failure to give a statement under this section to the debtor— (a) the creditor shall not be entitled to enforce the agreement during the period of non-compliance;

(b) the debtor shall have no liability to pay any sum of interest to the extent calculated by reference to the period of non-compliance or to any part of it; and

© the debtor shall have no liability to pay any default sum which (apart from this paragraph)—

(i) would have become payable during the period of non-compliance; or

(ii) would have become payable after the end of that period in connection with a breach of the agreement which occurs during that period (whether or not the breach continues after the end of that period).

[Sparkie1723]

What about pre 2007 unregulated agreements ?

 

Hi 42man

 

I must disagree with andrew1 on this.

ALL credit agreements/secured loans regulated or unregulated...except ones regulated by the FSA ( ie Prime Mortgages) ...which Swifts aren't are all drawn into the remit of the Consumer Credit Act April 2006 and the financial limit has been withdrawn so basically all credit agreements are governed by the new Consumer Credit Regulations and section 140 0f the CCA Unfair Relations.

If an agreement is a restricted credit agreement the agreement must specifically state that fact in the Key Financial information box......it is a SPECIFIED term of an agreemnt....none of Swift agreements state this very important fact, they are badly flawed

 

sparkie

Edited October 6, 2008 by Sparkie1723

[Sparkie1723]

Excellent thank you Sparkie.....so my 2002 agreement is now governed by the CCA....

ce

 

As of 6th April 2006

IF it is still in force.....answer is simply YES.

In future, all consumer credit and consumer hire agreements will be regulated by the 1974 Act unless specifically exempted, regardless of the amount of

the credit or the amount of the hire payments. Section 2(3) extends the application of the provisions regulating credit advertisements to advertisements offering credit regardless of the sum involved, and regardless of whether the creditor requires

security.

 

 

 

sparkie

Edited October 6, 2008 by Sparkie1723