FCA Regulator link to reporting "unfair terms"

[amelia33]

Re: FCA Regulator link to reporting "unfair terms"

I agree that 'joe public' do need to stand up and be counted, the financial industry has us cowed right now, the media industry does its part here too I feel........

[amelia33]

Re: FCA Regulator link to reporting "unfair terms"

I am not in greatest frame of mind for this tonight but a first charge mortgage is a totally different beast than second charge. As far as I am aware in 98 to do mortgages you had to have an exemption certificate through section 16 I believe and I am unsure if the council of mortgage lenders had something to do with it all. There is a statute list for all the people who could perform mortgages then so that might be a place to start.

any further information on this would be appreciated - if poss -
first charge right to buy mortgage, over 25k, unregulated product 1998. purchase price less than 25, add fees, additional borrowing, total over 25k. additional borrowing added to purchase price. no underwriting sheet available.

[Fred]

Re: FCA Regulator link to reporting "unfair terms"

http://www.fca.org.uk/firms/being-re...fair-contracts

http://www.fca.org.uk/about/governan...ining-about-us

Have a look at the above, the second being the FCA complaints system, depends what you have asked of them in the first place but they should not be saying its "unregulated" & nothing to do with us which in some cases they are, if I remember I will PM you my latest comms to the FCA for interest..

[amelia33]

Re: FCA Regulator link to reporting "unfair terms"

The Regulations set out a test for deciding whether a term is unfair. Under this test an unfair term is a term that creates a significant imbalance in the parties’ rights and obligations to the detriment of the consumer. For example, a term that allows the seller to change the terms of the contract without a valid reason and without consulting the consumer may be unfair. However, ultimately only a court may decide conclusively whether a term is unfair under the Regulations.In deciding whether a particular term does create a “significant imbalance” between the rights and obligations of the parties we may also, where relevant, take into account other potential breaches of other rules or guidance. It is also important to note that we take a risk-based and proportionate approach to regulation. When deciding whether to take action as a result of an unfair term, we consider factors such as the number of consumers who may be affected and the actual or potential harm. For example, it would not be proportionate for us to spend resources on a case where the number of consumers likely to be affected is low. In addition consumers retain the right to refer individual disputes to FOS.
Our views on the fairness of contract terms do not affect a consumer’s right to take further action themselves, as only a court can ultimately decide if a term is unfair.


underlined - the number affected surely has to be very high ??
significant imbalance - subjective or what ? FCA state regulation 6 re price or renumeration - so that seems to rule out an awful lot?
FOS told me to take my concerns to FCA, FCA vice versa as do not consider individual complaints, FOS stated in their email to me (which was a decision of their Ombudsman that my complaint fell outside of their regulation) they do not consider unfair terms only CCA complaints!

it is a confusing minefield for the average consumer to say the very leastmasdopey:

[Fred]

Re: FCA Regulator link to reporting "unfair terms"

The Regulations set out a test for deciding whether a term is unfair. Under this test an unfair term is a term that creates a significant imbalance in the parties’ rights and obligations to the detriment of the consumer. For example, a term that allows the seller to change the terms of the contract without a valid reason and without consulting the consumer may be unfair. However, ultimately only a court may decide conclusively whether a term is unfair under the Regulations.In deciding whether a particular term does create a “significant imbalance” between the rights and obligations of the parties we may also, where relevant, take into account other potential breaches of other rules or guidance. It is also important to note that we take a risk-based and proportionate approach to regulation. When deciding whether to take action as a result of an unfair term, we consider factors such as the number of consumers who may be affected and the actual or potential harm. For example, it would not be proportionate for us to spend resources on a case where the number of consumers likely to be affected is low. In addition consumers retain the right to refer individual disputes to FOS.
Our views on the fairness of contract terms do not affect a consumer’s right to take further action themselves, as only a court can ultimately decide if a term is unfair.


underlined - the number affected surely has to be very high ??
significant imbalance - subjective or what ? FCA state regulation 6 re price or renumeration - so that seems to rule out an awful lot?
FOS told me to take my concerns to FCA, FCA vice versa as do not consider individual complaints, FOS stated in their email to me (which was a decision of their Ombudsman) they do not consider unfair terms only CCA complaints!

it is a confusing minefield for the average consumer to say the very leastmasdopey:

As in the PM to you Amelia the CCA 1974 (in part) does apply & these companies have to be licensed/regulated by the FCA no matter what...........we need to know what the link is & what it means for us in the "unregulated" world it has taken them over six months to try & answer this & they made a complete pigs ear of my complaint, that is why its being looked at again.

I kept on at them asking pertinent questions & counter argued their points........you have to with these people use their own system & rules perhaps you may be surprised how far it gets you Its all on their web-site.

[Fred]

Re: FCA Regulator link to reporting "unfair terms"

& yes they are far more likely to respond to a "group action" or professional body rather than a pathetic member of the public like me................once I have my answers perhaps we could be in a better position to do so.

I can not stress enough how terribly important it is to get the the regulator to recognise our problems as the "whole" system will then start to move on this, we can only fight as individuals without them.

[amelia33]

Re: FCA Regulator link to reporting "unfair terms"

re the Supreme Court ruling on (Plevin) Harrison - can anyone put this in laymans terms and say if it changes anything, if so, how?

[amelia33]

Re: FCA Regulator link to reporting "unfair terms"

Examples of potentially unfair terms include those that:

• charge the consumer a large sum of money if they don’t fulfil their obligations under the contract or cancel the contract (e.g. a consumer does not pay an insurance premium or mortgage repayment on time)

this is taken from FCA website examples -

isnt this about charging - they here is the consumer yes? so not paying a mortgage payment on time fits the criteria, charging and then adding interest and racking up sixteen thousand seems like a lage sum of money to me!


also FCA -
6

20.3 The Unfair T
erms Regulations
Terms to which the Unfair
Terms Regulations apply
20.3.1 G (1) The
Unfair Terms Regulations
apply, with certain exceptions,
to terms in contracts concluded
between a seller or supplier and
a
consumer
which have not been individually negotiated.
(2) Terms cannot be reviewed for fairness within the meaning of
the
Unfair Terms Regulations
if they are terms which reflect:
(a) mandatory statutory or regulatory provisions; or
(b) the provisions or principles
of international conventions
to which the
EEA States
or the European Community as
a whole are party.
(3) Terms which are written in plain, intelligible language also
cannot be reviewed for fairness within the meaning of the
Regulations if they relate to the main subject matter of the

contract or the adequacy of the

price or remuneration, as against
the goods or services supplied in exchange.

they cant both be true!

[amelia33]

Re: FCA Regulator link to reporting "unfair terms"

how do i post the terms and conditions here, they are inteligible to me, therefore any help with what is and isnt 'unfair' greatly appreciated, assuming any authorities would be willing to here my argument of course, useless otherwise LOL

[Fred]

Re: FCA Regulator link to reporting "unfair terms"

District Judge Backhouse
Approved Judgment
First Plus v M & D
cost increases or reductions associated with the buying of
particular products or service. Examples of reasons that we are
likely to conclude are not to be valid include: to cover
unexpected costs for any reason a firm sees fit, for any reason a
firm considers reasonable at the time of the change or solely to
increase profit margin.”
13. Ms. Witherington puts forward a number of points that she says point to this being a
fair term. First of all, there is the nature of the service. This is a large advance,
£100,000, secured only by a second charge, and therefore more risky than a first
charge. She says that clause 7 sets out clear reasons when the interest rate might be
varied. She goes on to say that there is a twofold protection built in to clause 7:
firstly, that any increase or reduction cannot be more than twice the variation in the
finance house base rate, and, secondly, there cannot be more than two variations a
year, up to a 12 month period. Then lastly there is a requirement for thirty days notice
to the borrower. She says that taken more generally, looking at all the circumstances,
this is the bargain the parties entered into, namely a large loan with a high interest rate
and, as Ms. D herself admitted, she had limited options in the market if she wanted
to obtain that amount of money.
14. On her side Ms. D says her main concern is that any variation is not linked to a base
rate, so that if, as has happened in the past few years, the base rates have gone down
there is no necessary subsequent reduction in this rate. Further, she says that rates can
be increased to cover the Claimant’s own inefficiency and therefore there is a transfer
of risk from the bank to the consumer which the consumer ought not to bear. Lastly
she says that it is impossible to anticipate or plan for any change in the interest rate
because it is not linked to any external index. I should say I have no evidence before
me as to what the finance house base rate has been over the years, although I can see
from the statement of account that the interest rate seems to have gone up and down a
number of times.
15. Applying regulations 5 and 6 to the facts I accept that there are reasons given for a
variation in the rate in clause 7, but in my judgment they are very widely drafted. A
variation can occur not just because of an actual rate change but an anticipated rate
change, but more than that to ensure that the business is carried on “prudently,
efficiently and competitively”. That is a very wide set of considerations, and
obviously can include all sorts of commercial considerations and must include, by its
definition, consideration as to the Claimant’s profit margin.
16. Secondly, there is, as I said, a form of protection built in, but in my judgment it is of a
limited nature. It is, theoretically at least, possible for the Claimant to choose to
increase the rate on an increase in the finance house base rate, to charge twice the
variation in the base rate and to do that twice a year. In other words it is perfectly
possible for this clause to be used for upward only variation.
17. Thirdly, there is indeed a requirement for thirty days notice but no provision allowing
the Defendant to get out of the contract. I was particularly struck by Ms. D’s point
that it gives the borrower very limited facility to anticipate or plan for any increase
because – and I think this is the crucial point in my thinking – this variation does not
track any base rate, and I note that it is already a high rate of interest. So that if one is
District Judge Backhouse
Approved Judgment
First Plus v M & D
looking at the bargain it seems to me that the Claimant has already secured itself a
high return for the risk it is taking on.
18. This is not, I accept, a case where there are simply no valid reasons given for a
variation or the variation can be for any reason the firm sees fit. But in my judgment
this clause does heavily favour the lender. It creates a significant imbalance in the
parties’ rights and obligations, and it is clearly to the detriment of the consumer. So
for those reasons I have concluded that it is unfair within regulation 5.1. Regulation
8.1 provides that an unfair term is not binding on the Defendants. But the Regulation
goes on to say that the contract shall continue to bind the parties if it is capable of
continuing its existence without the unfair term. Having discussed this with Ms.
Witherington, it seems to me that it is perfectly possible to sever this term and for the
contract to continue at the interest rate stated on the loan agreement, namely an APR
of 9.4%, annual interest rate 9.06%, and that is what I shall find.
19. The effect of that, it seems to me, is that the Claimant is required to recalculate the
terms of the agreement, so far as the CMI interest, to arrive at the correct arrears and
balance. It seems to me that there are likely to be arrears, although one cannot specify
at the moment precisely how much. That being the case, I propose to direct that the
Claimant carry out that recalculation exercise and that a further short hearing will be
listed to determine the possession action. Ms. D and Mr. M should be under
no illusion that it is highly likely that the Claimants are entitled to an order and
without wishing to bind the court at the next hearing it is likely that a suspended order
will be made and it will be on terms of whatever the CMI is with this fixed rate and
with something towards the arrears, whatever they are.

UTCCR on 5.1 "unregulated secured loan"

[meellis]

Re: FCA Regulator link to reporting "unfair terms"

http://legislation.data.gov.uk/uksi/....htm?wrap=true
Amelia, I haven't read this for a while but look at it to see if there is anything for you. It isn't about unfair terms though.

[Fred]

Re: FCA Regulator link to reporting "unfair terms"

how do i post the terms and conditions here, they are inteligible to me, therefore any help with what is and isnt 'unfair' greatly appreciated, assuming any authorities would be willing to here my argument of course, useless otherwise LOL

I have asked a member of the team given this open posting it is not wise to divulge important informations.........

[amelia33]

Re: FCA Regulator link to reporting "unfair terms"

I have asked a member of the team given this open posting it is not wise to divulge important informations.........

ok, many thanks.

[amelia33]

Re: FCA Regulator link to reporting "unfair terms"

http://legislation.data.gov.uk/uksi/....htm?wrap=true
Amelia, I haven't read this for a while but look at it to see if there is anything for you. It isn't about unfair terms though.

thankyou, had a look, didnt understand much of it, but seems to be about exempt agreements. this is something I explored a bit in regard to the CCA 2006, which I had thought brought in otherwise unregulated agreeements and retrospectively, seems not however.

[meellis]

Re: FCA Regulator link to reporting "unfair terms"

Amelia, if I remember correctly your product was a first charge mortgage that was supposedly not covered because it was before a certain date. That is a document that lists the details needed to be exempt from CCA 74 if you are doing mortgage business I was just hoping you find some clues as to who oversaw mortgage business when your s was taken. People will tell you that it is exempt because of the value anyway but to me it indicates that first charge mortgages were treated differently. If you read the list of banks , building societies and so on that are on there you will notice that they are most of the people you would expect mortgages from. I believe that list was taken over by the mortgage regulators later so hopefully more experienced people will give you more info on who regulated and what was required to do mortgage business when yours was started.