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

[welshperson3]

first charge

 

Then I don’t think you can use the unfair relationship

I will check and get back to you tonight as i have to go now

WP3

[maybelline]

thanks but more than that being used, and have treble checked this approach:)

[maybelline]

http://www.oft.gov.uk/about-the-oft/legal-powers/legal/cca/CCA2006/unfair/unfair-rel-full/

[Ford]

re s140, note the Harrison & Anor v Black Horse ltd court of appeal judgment 12 october 2011!

Edited October 14, 2011 by Ford

[Bigdebtor]

Ford

 

I take it this means LTSB got away with selling PPI at 67% commission in this case?

 

If not can you tell us in layman's terms what this means?

 

BD

[Ford]

hi

haven't read it yet! just posted the reference up as it was fairly 'hot off the press' involving s140 at the appeal court.

[Dougal16T]

Evening all,

 

Why oh why did they not use S140 B ????.

 

I must say I also despair at the decisions made in the Higher Courts sometimes. Especially when you consider that PPI's are being refunded all over the ocean!!

 

Best wishes to all

 

Dougal

[maybelline]

Then I don’t think you can use the unfair relationship

I will check and get back to you tonight as i have to go now

WP3

 

sorry that sounds arrogant of me - oops, yes if you can check this it would be appreciated, fsa say my agreement is not regulated and so is therefore not exempt under cca 1974 category, however, i am lip and very open to anyhelp on offer:)

[welshperson3]

Hi maybeline

Not arrogant at all, but your confidence led me to believe you are on top of your game, and me giving you advice is like me teaching my granny to suck eggs.

But anyway here is some good reading for you;

The different regulatory regimes established by the FSMA 2000 and the CCA 1974 are considered in sections 2.1 and 2.2. The principle is that the regimes should be mutually exclusive. The FSMA regime governs Regulated Mortgage Contracts being first legal mortgages over the borrower’s home. The CCA regime largely governs second and equitable mortgages; the detailed rules are summarized in Section 2.2.1. The regulatory divide is thus governed by the type of loan and lender rather than the type of borrower.

Both regimes are based upon the principles of decentered market regulation where the object of regulation is to create an open and competitive market in which borrowers can make informed choices best suited to their needs through the provision of standardized comparative information for instance regarding interest rates, repayment installments and penalty charges. Within this market borrowers are thus expected to be equipped to borrow responsibly and lenders to lend responsibly.

Lenders wishing to enter this market must be licensed and may be subject to disciplinary proceedings either by the FSA, if they conduct Regulated Mortgage Business, and by the OFT where their business is subject to regulation under the CCA. Thereafter both regimes adopt what has been called “cradle to grave” approach by setting out the steps and information that must be provided to the borrower throughout the course of the transaction from the lender’s marketing of the loan and the borrower’s first approach to the lender through to the mortgage offer and completion of the transactions. There are also requirements governing information that must be provided to the borrower during the course of the mortgage and provisions regulating the lender’s actions should the borrower default.

However, the FSMA and CCA take different approaches. The FSMA looks to satisfy broad principles, including in particular to treat borrowers fairly, through the articulation of process based rules set out in the Conduct of Mortgage Business Handbook known as the MCOB. A breach of these rules may lead to an action for breach of statutory duty by the borrower or disciplinary action by the FSA. However, the enforceability of the mortgage itself is unaffected.

The CCA is somewhat more prescriptive in detailing the form and content of the loan agreement and mortgage and the process by which they must be completed. Furthermore the consequences of a breach of these requirements is more far-reaching; the mortgage is void and can only be enforced with the approval of the court, who may require a variation in the terms of the mortgage. There is no equivalent of the MCOB Handbook governing CCA regulated mortgages but the OFT does issue guidance on various matters for instance as to requirements lenders must satisfy to obtain and retain a license, default charges and on non-status lending

A particularly important additional distinction between the two regimes is the provisions of sections 140A-C of the CCA 1974 which applies only to CCA regulated mortgages. These sections confer upon the court an important jurisdiction to reopen a mortgage where they determine that its terms create an unfair credit relationship between the lender and borrower, although it is still unclear exactly when a court will consider a particular credit relationship unfair. The OFT have offered their own guidelines

Although the two regimes are distinct, it should be noted that the FSA and OFT do maintain a close collaboration in which the Financial Services Ombudsman also plays a part in its complaint and dispute resolution role to borrowers under both regimes.

From a comparison of the legal forms of redress it is evident that the CCA regime affords great judicial protection to the borrower. This is perhaps not surprising given that CCA regulated lending is conducted mainly by secondary lenders, rather than high street banks and building societies, and is not primarily directed at home purchase loans but to secure loans to consolidate a borrower’s debts or secure other expenditure. Nevertheless the OFT has been subject to criticism by consumer groups as failing to provide adequate, comprehensive and current guidance and to put in place an effective monitoring and compliance strategy.

The FSMA does provide a more coherent regime and various groups have suggested that all loans secured against a borrower’s home should be regulated under by the FSA. However, the credit crunch has exposed the weakness of decentered market regulation, in particular lenders’ failure to lend responsibly. The Turner Review (referred to in the additional web material) is critical of the FSA’s past ‘light touch’ approach to its regulatory responsibilities and promises more intensive supervision focusing on responsible lending by considering the viability of regulated lenders business strategy, and not just their compliance with the MCOB. Also to come under greater scrutiny, will be the competence and probity of a lender’s employees responsible for the conduct of the lender’s business

[welshperson3]

sorry that sounds arrogant of me - oops, yes if you can check this it would be appreciated, fsa say my agreement is not regulated and so is therefore not exempt under cca 1974 category, however, i am lip and very open to anyhelp on offer:)

 

Its not a regulated mortgage then yes 140 will cover you.

[maybelline]

Hi thanks:) - thats very useful.

 

yes my product is first charge, so 'secured on land' but written out as 'Unregulated agreement' but also over 25K, however, I am a bit confused by the wording of the s16 exemptions section. -

 

 

Agreements secured on land

3.3 The Act does not regulate:

• a regulated mortgage contract, or regulated home purchase plan,

within the meaning of the Financial Services and Markets Act

2000,23 or

• an agreement where the creditor is a housing authority and the

agreement is secured by a land mortgage of a dwelling.24

3.4 In addition, the Act does not regulate:

a) a debtor-creditor-supplier agreement financing the purchase of land,

or the provision of dwellings on any land, secured by a land

mortgage on that land

b) a debtor-creditor agreement secured by any land mortgage to

finance the purchase of land or the provision of dwellings on any

land

22 See paragraph 1.2 above.

23 Section 16(6C).

24 Section 16(6A).

7

c) a debtor-creditor agreement secured by any land mortgage to

finance the provision of business premises on any land

d) a debtor-creditor agreement secured by any land mortgage to

finance the alteration, enlarging, repair or improvement of a

dwelling or business premises on any land, provided that:

- the creditor is the creditor under another agreement relating to

that land (and secured by a land mortgage on it), or

- the services are certified as having been provided by a local

authority or charity, or by a housing association or similar

body, or by the National Home Improvement Council

e) a debtor-creditor agreement secured by any land mortgage to

refinance any existing indebtedness of the debtor under an

agreement falling within (b) to (d), or

f) a debtor-creditor-supplier agreement financing a transaction which

is a linked transaction in relation to an agreement falling within (a)

or (b) and secured by a land mortgage on that land,

provided in each case that the creditor is a deposit-taker25 or a body

specified in Part 1 of Schedule 1 to the 1989 Order, namely certain

named insurance companies, friendly societies, charities and other

bodies.26

25 Within ............

[maybelline]

Hi thanks:) - thats very useful.

 

yes my product is first charge, so 'secured on land' but written out as 'Unregulated agreement' but also over 25K, however, I am a bit confused by the wording of the s16 exemptions section. -

 

 

Agreements secured on land

3.3 The Act does not regulate:

• a regulated mortgage contract, or regulated home purchase plan,

within the meaning of the Financial Services and Markets Act

2000,23 or

• an agreement where the creditor is a housing authority and the

agreement is secured by a land mortgage of a dwelling.24

3.4 In addition, the Act does not regulate:

a) a debtor-creditor-supplier agreement financing the purchase of land,

or the provision of dwellings on any land, secured by a land

mortgage on that land

b) a debtor-creditor agreement secured by any land mortgage to

finance the purchase of land or the provision of dwellings on any

land

22 See paragraph 1.2 above.

23 Section 16(6C).

24 Section 16(6A).

7

c) a debtor-creditor agreement secured by any land mortgage to

finance the provision of business premises on any land

d) a debtor-creditor agreement secured by any land mortgage to

finance the alteration, enlarging, repair or improvement of a

dwelling or business premises on any land, provided that:

- the creditor is the creditor under another agreement relating to

that land (and secured by a land mortgage on it), or

- the services are certified as having been provided by a local

authority or charity, or by a housing association or similar

body, or by the National Home Improvement Council

e) a debtor-creditor agreement secured by any land mortgage to

refinance any existing indebtedness of the debtor under an

agreement falling within (b) to (d), or

f) a debtor-creditor-supplier agreement financing a transaction which

is a linked transaction in relation to an agreement falling within (a)

or (b) and secured by a land mortgage on that land,

provided in each case that the creditor is a deposit-taker25 or a body

specified in Part 1 of Schedule 1 to the 1989 Order, namely certain

named insurance companies, friendly societies, charities and other

bodies.26

25 Within ............

[welshperson3]

Update

 

Went to court this morning,

Local solicitor representing blemain wanted a 28-day possession order; well to cut to the chase they didn’t get what they wanted, but I did I got the go-ahead for my trial.

 

Different judge to the last time but I still think I might get the right out come as he showed a fair bit of interest in the charges that have been added to the account.

 

I wanted a directions hearing this morning with standard disclosure, but the judge has gone one better, he has ordered a further directions hearing before the trial date.

 

 

This is what is going to happen

 

1 I have 14 days to file a defence and request documents from blemain

2 they have a further 14 days to respond and send documents

3 directions hearing date not yet fixed

4 trial date not yet fixed

 

 

In the judges words when he ordered the directions hearing (TO MAKE SURE WE ARE REDDY AND HAVE EVERYTHING PRE TRIAL)

 

They narrowly escaped an unfair relationship judgment last time, only as I won on my first point and the judge didn’t feel the need to give his judgment on the unfair relationship, and that was with the help of a top London barrister ££££££££.

I felt insulted today when they only turn up with a locum, after all my hard work and research they can at least show some effort.

 

WP3

[patrickq1]

1 I have 14 days to file a defence and request documents from blemain

j can see B wasting the Courts time and you are forced to enter an embarrassed defence , usual tactics WB but to overcome this a strongly worded letter to the judge of their antics should just about seal victory for you as fae as B are concerned a lot of things done by them were always under the counter out of your sight and deals done with the Agents if you know what i mean

patrickq1

ps. well done dude so far

[welshperson3]

Hi Patrick

This is what I asked the judge for today, but he wants me to file my defence at court first.i beleve that this is what will happen in the next directions hearing.

Standard disclosure – what documents are to be disclosed

 

31.6

 

Standard disclosure requires a party to disclose only –

(a) the documents on which he relies; and

(b) the documents which –

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

© the documents which he is required to disclose by a relevant practice direction.

And if they don’t comply with the above then I aply for

Specific disclosure or inspection

 

31.12

 

(1) The court may make an order for specific disclosure or specific inspection.

(2) An order for specific disclosure is an order that a party must do one or more of the following things –

(a) disclose documents or classes of documents specified in the order;

(b) carry out a search to the extent stated in the order;

© disclose any documents located as a result of that search.

(3) An order for specific inspection is an order that a party permit inspection of a document referred to in rule 31.3(2).

[welshperson3]

sorry Double post

Edited October 24, 2011 by welshperson3
Double post

[determindator]

Well done W3. I hope the message is reaching the Court Judges about these predatory lenders.

Edited October 24, 2011 by determindator

[caro]

Well done. I'm sure your hard work won't have gone to waste and will come in next time round. Preparation for court is vital IMO. You can never do too much.

[maybelline]

well done wp3 !

[maybelline]

Well done W3. I hope the message is reaching the Court Judges about these predatory lenders.

- not yet (sadly)

[sillygirl1]

Well done, don't forget you can also ask for a specific person to attend court for questioning, costs £35 but is sometimes worth it, especially if you have been dealing with somebody who claims to be 'qualified' to deal with your matter....

[welshperson3]

Thank you sillygirl1

 

This is something that I had not thought of, the question now is who!

 

 

If I pay a broker £1000 to find the best deal for me then I think I would be right in saying that this broker is working for me.

But that is only what blemain and the broker want me to believe, when in fact the broker and blemain are working together, conniving and conspiring to get my last penny and when that is gone try and take the house as well.

 

Now as I said the broker works for me and as such he owes me a fiduciary duty to find the best deal for me and not the one that is paying him a backhander.

 

 

Gary Bailey, Director of Blemain Finance said,

 

“We are still lending substantial volumes and are committed to improving the service we offer our brokers. I would like to thank everyone who has adopted the Minimum Standard Requirements for packaged cases. With brokers now working more efficiently, this has resulted in cases completing faster, and is an excellent example of how lenders and brokers can work together for mutual benefit. I’m also delighted that the Roving Underwriters are proving so successful and am very grateful for the positive feedback we have received.”

 

 

 

Well sillygirl1 I think I might have just a idea as to who that specific person might be, the only problem I have with this one is he gives all the bulletins on blemain which means he is a good talker and I think he might just baffle them with bull***t.

More research needed

 

ANYONE FROM BLEMAIN READING THIS AND FANCY A DAY OUT IN SUNNY WALES PLEASE PM ME

 

WP3

Edited October 26, 2011 by welshperson3

[welshperson3]

What happened to these?

MONARCH RECOVERIES LIMITED

 

FSA maybe?

wp3

[patrickq1]

Two Outer House cases in which Cheshire Mortgage and Blemain Finance (connected companies) were the victims of a mortgage fraud and sought to sue the solicitors instructed by the fraudsters (the banks had instructed separate solicitors) for breach of warranty of authority.

In each case the fraudsters had pretended to be persons owning property which they were seeking to use as security for a loan (of £355,000 in one case and £203,000 in the other). They had been able to produce evidence of their identity in the form of utility bills and driving licences to their solicitors and to the banks. In both cases the fraudsters had approached the bank (directly in one case and via a broker in the other) before instructing their solicitors.

The banks argued that, in each case, the solicitors warranted that they had the authority of the individuals who owned the properties over which standard securities were purportedly granted. The solicitors recognised the doctrine of a solicitor giving an implied warranty of authority. However, they contended that it does not go as far as giving a warranty of the identity of the person for whom they act, nor does it include any warranty as to whether he is or is not the owner or occupier of any particular property. In effect the solicitors said that they warranted only that they had authority from persons who were already known to the banks and with whom the banks were already dealing.

Lord Glennie found in favour of the solicitors. The circumstances in which the solicitors came to transaction were of particular importance. By the time the solicitors became involved, the banks knew who they were (or who they thought they were) dealing with. They had already made the decision to lend to those individuals. The solicitors had been instructed (by the fraudsters) for the limited purpose of drawing up the loan and security documentation and liaising with the banks’ solicitors.

In one of the cases there was also discussion as to whether the solicitors were liable to the bank in terms of the letter of obligation they had granted. The bank argued that they suffered loss as a result of the solicitors’ failure to procure the title deeds recording the security in terms of the solicitors’ undertaking. However, Lord Glennie again agreed with the solicitors’ arguments on this point:

 

1. the letter of obligation was collateral to the principal transaction between the bank and the borrowers and could not be enforced if that principal transaction was void; and
   
2. in any event, the bank could show no damages flowing from the failure by the solicitor to produce a title encumbered with the Standard Security, since the Standard Security referred to in the letter of obligation was itself void.
   
3. full judgement here see link below
   

http://enewsletters.tictocfamily.com/t/r/l/tkjdlyd/l/ir/

[Bigdebtor]

Patrick

 

Thanks for lighting up an otherwise dreary day. I think "poetic justice" is an appropriate comment?

 

Whilst I don't condone fraud (and place solicitors only slightly higher in the "morality" scale than bankers and DCA's) I think this loss is more justly borne by this pair than by the solicitors!

 

BD