welshperson3 v blemain finance - 140A Unfair relationship -started court proceedings

[welshperson3]

Firstly a bit of background.

I have a secured loan with blemain finance (we all make mistakes:-x)

It was taken out in may 2007 and is for £10K also it is cca regulated.

They have added over £4K in charges in just 2 years, I have requested the charges back and after lots of letters i have they're final bog of letter. so i am now debating whether to take then to court for unfair credit agreement or go to the fos, i have phoned the fos and they have taken details and sent me out the forms to carry on with my complaint,but as yet i have not sent them back.so i have all options open to me and some advice in which way to go would be appreciated.

 

Also i have a suspended possession order after they went for repossession, now the thing is i think when they took me to court they first sent out a default notice, but i think that it is non compliant and would like a second opinion,and some advice on how to deal with a suspended position order that they got on the back of a dodgy default notice.

 

my issues with the default notice are

a]That they didn't give me 14 clear days to rectify.

b] No specific date to remedy (they say 14 days from date of letter)

c]The paragraph saying that if you dint understand this then seek advice from CAB is missing

 

the following is word for word what it says on the default notice and the only date on the notice is at the top of the page.

 

1] To remedy the breach you must pay the total arrears of £xxx within days of the date of this letter.

2] If the action required by this notice is taken before the 14 days, no further action will be taken in respect of the breach.

3] if you don't take the action required by this notice before this date then the further action set out below may be taken against you.

4] FURTHER ACTION: on or after the date shown above we shall apply to the court for an order for possession and sale of the mortgaged property.

 

so any advice on how to proceed with this would be greatly appreciated and thanks for looking.

 

welshperson (from bridgend:-))

Edited December 16, 2009 by welshperson3

[welshperson3]

first thanks for all the advice

 

I will post up the DN when i workout how to upload,later today hopefully.

my thoughts also is that as they have acted on the DN by taken court action then that has terminated the account.

 

also think i will have to get the ccj set aside, would i be right in thinking i could get this set aside on the grounds of them not having the right to take court action because of them not issuing a compliant DN.

 

think over the weekend i will research a bit more on how to get a set aside,

not quite sure but i might be entitled to legal aid, another thing i need to check.

 

wp3

[welshperson3]

my first atempt at uploding DN with photobucket hope this works.

 

http://i902.photobucket.com/albums/ac230/welshperson3/img005.jpg

Edited November 27, 2009 by welshperson3

[welshperson3]

here is a part of blemains witness statement showing that they wanted full possession

 

http://i902.photobucket.com/albums/ac230/welshperson3/img006.jpg

 

so my thinking is going for possession on a dodgy DN, and claiming for repossession equals game over for blamain.

hopefully there will be a new headline soon.

 

( BRIDGEND 2 BLEMAIN 0)

 

WP3

Edited November 27, 2009 by welshperson3

[welshperson3]

a quick question if anybody can help.

 

my DN is dated the 22/8/2007 which is a Wednesday so allowing two clear days for service what day would count as the first day.

 

my thinking is 2 clear days after the date which would be the Thursday and Friday the weekend don't count so first day is the Monday ?

 

or is it deemed served on the second after posting witch would make it the Friday ?

 

or can it be deemed served on a Saturday ?

 

wp3

[welshperson3]

A quick update

 

phoned blemain today (out of courtesy) to see if they will agree to my application for a set aside.

it came as a bit of a surprise when they say no they wont agree

 

also phoned the court they are sending out the forms so when i receive them i will post them up on here along with my defence.

 

wp3

[welshperson3]

i had exactly the response i expected.

but when i mentioned unfair relationship they went on to say that as i have not got a repossession date and it is only a suspended possession order then this means nothing if i keep up with the payments.

 

if it meant nothing then why did they go for it ?

 

ANSWER

 

so they could add £1300 in solicitors costs (in house solicitors) and then go on to add over £4000 in 2 years.

 

I DO THINK I RATTLED THEY'RE CAGE THO

 

WP3

Edited December 7, 2009 by welshperson3

[welshperson3]

some advice please.

 

"IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOU LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS' ADVICE BUREAU

 

on a default notice this paragraph is it a prescribed part, if so what date was it added.

 

wp3

[welshperson3]

thanks 42Man

 

So now i have 3 separate issues with the DN.

 

1 no specified date to remedy.

2 not enough time to remedy.

3 a prescribed paragraph completely missing.

 

today i received a application form from the court for me to get this

set aside.

 

i will attach my defense but should it be a skeleton argument or a full defense.

 

wp3

[welshperson3]

Had two meetings with solicitor he is happy with what i got but he wants a barrister to look things over.

 

Hopefully i will issue court proceedings by the end of February.

Have been researching and working with solicitor for months so as to get it right think I'm there now.

 

going for S140 CCA unfair relationship.

 

If i win I'm sure it will make headlines

 

blamain lost on unfair relationship to peter Bentley, HE WAS FROM BRIDGEND SO AM I.

[welshperson3]

The original issue was just about the DN but since meeting with solicitor it has brought about numerous other points that effect the agreement.

 

So the unfair relationship is not really connected with the DN issue.

 

As soon as proceedings start i will post up my POC but not yet as it might give them a heads up .

[welshperson3]

As the title suggests I have started court proceedings against blemain finance.

The application I have made is consisting of two parts,

Firstly I have a suspended possession order issued last year and I am asking the court to set aside this

On the grounds that blemain had no right to bring the original claim.

Before bringing a claim for possession they should issue a compliant default notice, the one I have is far from compliant it is short of the statutory days to remedy, also it is missing prescribed paragraphs.

Also possession proceedings should only be sought as a last resort, blemain finance were adamant that this was going to court, I was offering to pay £100 a month on top of the regular monthly payment but they would not accept this, but out side the courtroom door I spoke to the solicitor representing them and made a offer to pay £50 a month on top of the monthly payment, he then phoned blamain who accepted this offer of £50.

This shows that the overriding objective of blamain was not the arrears, but in fact just to get this to court so they could add more costs and the interest that they claim on these costs.

Unfair relationship test applies to the above as it covers not only the term of the agreement but also the way in which they carry out the agreement and anything they do.

The set aside I might get it and I might not, but if I don’t it is not the end of this claim the main point of this claim is related to how they have operated under this agreement and how they have added charges to the account.

My intention is to find out if £35 a phone calls and £35 a letter and £30 a month for being in arrears and numerous other admin charges are legal.

To date the charges approximately £5000 with out the interest that has been added to then.

Also a variable interest rate that was not explained to me how they can very the interest at will.

For example if they want to put the interest rate up to 50% from next month, just so they can make a lot of money then they can. (Unfair I think)

Commission paid to the broker that was not disclosed to myself at the time I took out this loan (secret commission) if the broker finds a loan that is not in the sub prime market he get a fee but if he finds a loan that is sub prime then his fee is considerably more.

So the question is was this loan the best option for me at the time or was it the one that was paying the broker the most money.

I have a court date for the application herring on the 18 August.

Now for my question.

S140 unfair relationship puts the burden of proof on them, I claim its unfair and it is until they prove that it is not, and this will require providing documentary evidence, now the problem I am having is to get them to disclose.

I have done a S.A.R. and they have only supplied a very limited amount of the documents I asked for, so do I file a N244 in court and ask the court to make them comply or can I get the requested documents using C.P.R. rules.

C.P.R. 31.14 I think only relates to documents mentioned in the claim but I want the under writing sheet and other things not mentioned in the original claim.

So what is the best way to get the documents that I want ?

Every thing I have written on here blemain knows about, as they would have received the court papers.

I hope you all understand that I have to keep something’s off the open forum as I am sure that they monitor forums such as this and I don’t want them to have a advantage in court by knowing my every move, but I will keep you all updated as to how things are progressing.

Finally,

Even if they pay back all the charges before going to court I will still continue to ask the court to make a decision on this as the way they have treated myself and my wife, I am now like a dog with a bone and I will not let this go.

The last time blamain went against someone from bridgend is all over the internet, I to am from bridgend and I don’t think blamain will want to lose this to someone from bridgend again as the publicity will be extremely bad. So I expect them to go at this with all guns blazing.

All help and advice will be greatly appreciated as this could set precedence for the claiming back of charges from all lenders.

WP3

[welshperson3]

I received a letter of cantor law this morning

They have stated their points, which there are going to contest my application on, and the points are as follows so any advice would be greatly appreciated.

First my application to set aside a suspended possession order is out of time, and what they are relying on is the rule in Henderson v. Henderson (1843)3 hare,100, per Wigram V-C

They are also using the supreme court case OFT v abbey national plc (2009) uksc 6. (FOR THE CHARGES)

But I think that is irrelevant.

So I am not 100% on the set aside issue but this is not just about that, it is the UNFAIR RELATIONSHIP that i want to prove.

I think that tomorrow will turn out more of a directions hearing than anything else, I will update as soon as I get back tomorrow ( late afternoon)

WP3

[welshperson3]

I am the plaintiff,

 

Trying to set aside a suspended possession order, and also get the court to rule on a unfair relationship.

 

wp

[welshperson3]

Update

I just got back from court, nothing much happened today as the court had only listed the hearing for 15 minutes.

But what the court have done is given directions, to file and serve all documents that are relied upon in court (case law ect ect) and also given the case a hearing time of three hours.

The judge did raise an eyebrow when the other side say that the balance of the account was £7K and I say I have documents showing it to be over £14K so he asks then how is this they then give him the true figure of all the charges that they added and indeed it is over £14k.

I think that is the reason he has listed it for 3 an hour hearing.

The judge gave 21 days for service of documents and a hearing date to be set for the first available court time after that.

So onward and upward

wps

Edited August 18, 2010 by welshperson3
typo

[welshperson3]

thanks frettful 38

 

my next move is to get them to disclose documents that they have failed to produce in the response to my SAR.

I will use CPR rules now

 

wp3

[welshperson3]

UPDATE

 

Today i received from the court (GENERAL FORM OF ORDER)

 

It is ordered that

 

1 The claimant do file and serve a statement in response to the defendants application to set judgment aside by 4 pm on 8th September.

 

Quite exited on this, cant wait to see what they are going to say.

 

2 any skeleton arguments and authorities be filed and server not less than 5 working days prior to the hearing.

 

And the date of the hearing is set for 7th October with a time estimate of 3 hours.

 

the costs of today be in the application.

 

wp3

[welshperson3]

hi frettful38

 

BLEMAIN HAVE NO CHOICE HOW FAR THIS IS GOING.

 

Them paying back charges and such things is not going to make the slightest bit of difference.

 

The stress this company has put on myself and my family has caused a lot of sleepless nights, and one way or another i am going to show what they do is wrong, immoral and illegal.

 

There was a lot of media attention on the last time they went to court with some one from bridgend,it is on the BBC web pages, FSA web pages. I am at a point now were i am looking into if the media are interested in this.

 

As for the skeleton argument, so far it is all in hand, have the information but have not put it together in writing yet,have 3 weeks to do that.

 

The research i have done on this has taken over my life and the hours is in the high 100s, and two meetings with solicitor, I think i am prepared now as much as i ever can be.

Nobody can be sure what the outcome will be on the day but i am quietly confident.

 

I hope you understand why i cant post up all my arguments before the hearing but as soon as it is over i will post everything.

 

wp3

[welshperson3]

Hi caro

Nothing yet, but that is no surprise, they policy is to keep you in the dark.

Before the start of the agreement they failed to give required information.

During the agreement they failed to send statements, failed to respond to a SAR.

And now they are ignoring a court order.

This just makes it easy to show an unfair relationship exists

[welshperson3]

iphone the

glad to see someones taking action againt them good luck mate and i hope you win

 

ive got a similar issue with them too but i dont know where to start

 

Hi jimmyq

 

If i can help in any way feel free to ask.

The first thing to do is send them a subject access request, find out how much they have added to the account in charges.

 

 

Update

 

phoned them on 13th 14th and 15th to ask why they are not complying with court order,and every time they say they will get bact to me (they never did) so on the 22nd i phoned cantor law (in house law firm) they wont accept calls from litigents in person.

 

Now this leaves the question of how a litigant in person is suposed to deal with matters when a law firm refuses to comunacate with them.

on that point i have spoken to the law society and they say i should bring this to the attention of the judge,and also write the firm a letter of complaint,after 28 days the law society will take on the complaint but i have to give them 28 days first to reply.

 

i have also sent blemain a part 18 request,i have not receved a reply as yet but they still have time to answer this (but i dont think they will)

 

wp3

[welshperson3]

Have you spoken to the court again, lodge a complaint about contempt of court with them too if they haven't complied with the General Form of Judgement.

 

Belmain Finance need a complaint lodged with ALL the relevant authorities on this, including the Ministry of Justice (I understand they can 'send in the heavy mob' without notice if a firm is misbehaving).

 

Hi sillygirl

 

On the matter of complaint i will first have to get a good suply of ink cartridges for the amount of complaints i have.

 

In no particular order complaints to the folowing.

 

Law society

court

FSA

FOS

Information commissioners office.

 

im not up on the ministry of justice,but will now check it out thanks.

 

wp3

[welshperson3]

Hi WP

 

Did Blemain actually give you an outstaning balance on your account when you sent an SAR?

 

They refused to with mine because I had not paid their fee of £250!!!!

 

Without payment they will not disclose!

 

Cupcake

 

No they didn't send the outstanding balance in response to my SAR, so then i sent them a letter before action and listed things i wanted they then sent out list of charges and balance of account. they also sent out in writing that they wont send me a copy of the underwriting sheet. so i have it in writing that they are refusing to comply.

 

wp3

[welshperson3]

i hope you have reported the refusal to the ICO FSA AND FOS preferably they have put this in writing but if not ring the agencies mentioned and speak directly with them, they will help ?

patrickq1

 

 

Monday will be spent on the phone to the relevant authority's, and i will get the complaints up and running.

 

This company is running with total disregard for any rules or regulations.

[welshperson3]

CUPCAKE68

 

Ther are rules about setelment figures, hope this helps.

 

How do I get a settlement figure?

Under Section 97 of the Consumer Credit Act 1974, the debtor is entitled to know how much he/she has to pay in order to clear the debt. The request should be in writing. Give the creditor enough details to enable them to identify the agreement, including the agreement number. Title the letter 'Request for Early Settlement Figure'. An example of a request letter is given in this leaflet. If you are up-to-date with your payments, some companies will provide a settlement figure over the telephone.

I wrote to my creditor over a month ago asking for a settlement figure but have not received a response. What are my rights?

The Consumer Credit Act 1974 requires the information to be provided within 12 working days from receipt of your request. If the creditor fails to provide the information requested, they cannot enforce the agreement against you until they do; and if they do not send you the information for more than a month, the creditor commits an offence. If this happens to you, contact Consumer Direct for advice.

How much rebate am I entitled to?

Regulations lay down two different formulas for calculating the rebate. What formula should be used will depend upon when you took the agreement out. A new formula was introduced for agreements entered into from 31 May 2005, but this does not apply immediately to agreements entered into before then. Most companies use computer programs to calculate the rebate.

Will my credit agreement give me any information about early settlement?

All credit agreements entered into after 31 May 2005 will have a section headed 'key information' which will contain information about early settlement. Creditors have to show the figures that would be payable for early settlement when ¼, ½ and ¾ of the repayments have been paid. The information shown will be the sum needed to settle at that stage, taking account of the payments made up to that date. The rules allow the creditor to show this information as the amount for every £100 or £1,000 borrowed rather than for the total loan, so check the figures carefully.

Can I have the figures checked?

Yes. Some trading standards services have a computer program that can check the figures are correct. Contact Consumer Direct to ask whether your local trading standards service would be able to check the figures. If they are able to do the check, you will need to:

• obtain the settlement figure in writing and
  
• send all the documents relating to the agreement to them by post or by fax
  

Please note that they will not normally check settlement figures over the telephone.

The settlement figure is greater than my original loan - can this be correct?

Loans are made up of capital advanced and interest. Depending on how many payments you have made, the settlement figure may well be higher than the original loan. This is most common with long-term loans, where early payments are more interest than capital. The rebate is on the interest outstanding, not the capital left to pay.

I am in arrears with my repayments and have incurred penalty charges - can I have a rebate on these charges?

No. The settlement figure is for paying off the original loan. You are not entitled to a rebate on any charges incurred for late payment, non-payment or administration fees that have already been charged (e.g. broker's fees or arrangement fees).

The settlement figure provided by the creditor is too high - what are my rights?

If you feel the figure is wrong, trading standards may be able to check the statement and give the correct figure. Contact the creditor and dispute the figure. If they continue to refuse to correct it, then contact Consumer Direct for advice.

I obtained a settlement figure and paid the creditor. They have now contacted me and said the figure was wrong and I owe them more money - what are my rights?

The Consumer Credit Act 1974 binds the creditor to any statement they provide to the debtor. This means that if they charge you less than they are entitled to, and you pay in good faith, the creditor must apply to a court for the extra money. The court will decide if you have to pay the money that the creditor is claiming. If you receive such a request for extra payments, contact Consumer Direct or your local Citizens Advice Bureau for advice.

Example of Letter Requesting Early Settlement:

White's Financial Services Ltd

36 High Street

Anytown

Anyshire AN1 1AA

01 September 2010

Dear Sir/Madam,

Request for Early Settlement Figure

Credit Agreement No: 123456789

On 10 January 2008, I took out the above agreement with you for the purpose of purchasing a car. I now wish to settle the agreement. I would be grateful if you send me a settlement figure for the above loan, in accordance with Section 97(1) of the Consumer Credit Act 1974 and the Consumer Credit (Early Settlement) Regulations 2004.

I look forward to hearing from you in due course.

Yours faithfully,

Mr A Brown

[welshperson3]

Also they are not following rules on how they calculated the early payment on my agreement, the FSA has recently fined a few company's for this, and i will be brining it up in court.

 

wp3