Swift Advances Plc?

[yorkie-dave]

Re: Swift Advances Plc?

ok peter thankyou.

right if i send the letter you stated off to swift,what then when they reply,will they charge me for letters being sent to me and add more costs etc?

ive never been behind on payments nor wish to get in that situation.

thanks
dave

Re: Swift Advances Plc?

wow...im loving this banter lol,think i need a coffee and some hobnobs to watch this one :tinysmile_grin_t:

so what you guys are saying is that the agreement is all correct legally,if not morally.
the apr rate is incorrect,what does this mean in laymans terms?

and what should i do if anythng(send the letter peter mentioned)
if so what are the consequences to me of such a letter being sent?

sorry im not literate on such matters..give me a motorcycle to fix any day

wow...im loving this banter lol,think i need a coffee and some hobnobs to watch this one :tinysmile_grin_t:

so what you guys are saying is that the agreement is all correct legally,if not morally.
the apr rate is incorrect,what does this mean in laymans terms?

and what should i do if anythng(send the letter peter mentioned)
if so what are the consequences to me of such a letter being sent?

sorry im not literate on such matters..give me a motorcycle to fix any day

Hi
Yes send the letter you are only querrying the validity of the agreenment at this stage, see what they say.
I have had a number of successes getting agreements with similar faults to this thrown out, (usually Welcome) most documented OTR. I have also had a couple of failures.
The failures without exception occur when the OP gets into court and finds he never understood the argument in the first place, and then the other side tie them up in knots.
People on here will tell you that I am not one to say that an agreement is challengeable unless I have good cause. I think the one I have seen here is, but if you want to fight it you cannot allow yourself to be side-tracked.
Peter

[Sparkie1723]

Re: Swift Advances Plc?

Going back to the subject that Dave initially posted .....this is taken fro the OFT gUidance for second charge Lenders and brokers........although not Law could be construed as unfair in a Court proceedings


3.11 The existence of any commission or other payment payable by the lender to the broker should be disclosed to the borrower at an early stage, for instance before the broker engages in specific discussions based on the prospective borrowers circumstances, so that the borrower is aware of any potential conflict of interest. The amountof the commission or override commission should be disclosed.


Sparkie

Remember everyone I have no legal training and my views are not to taken as legal advice.........I am a dumb 74 year old senile auto spark

[jumper999]

Re: Swift Advances Plc?

I know it is a bit long but very useful and interestiing information for all,

Interest Rate Rises

1. Whereas the initial rate of interest under a loan is a core term and not susceptible of appraisal for fairness under Regulation 5 of the Unfair Terms In Consumer Contracts Regulations a right to vary the interest terms is assessable for fairness. The Unfair Terms in Consumer Contracts Regulations work in the following way.

2. Section 3 of the Unfair Terms in Consumer Contracts Regulations 1999 defines a consumer as a natural person who, in contracts covered by these regulations is acting for purposes which are outside his trade, business or profession. The Defendant is a seller or supplier within the meaning of this Regulation so by Regulation 4 of the Regulations, they apply to this transaction.

3. By Regulation 5 a contractual term which has not been individually negotiated, shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties rights and obligations arising under the contract, to the detriment of the consumer.

4. By Regulation 7 (2), if there is any doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail.

5. Schedule 2 to the Regulations contains an indicative and non exhaustive list of terms which may be regarded as unfair. Contained within the ,list is clause 1 (j) which are terms which have the effect or object of enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract. Such terms are regarded as ‘candidates’ for unfairness. The Regulations do not make them necessarily unfair but likely to be unfair unless justified.

6. The second part of Schedule 2 to the regulations qualifies this though by providing that

“Paragraph 1(j) is without hindrance to terms under which a supplier of financial services reserves the right to alter the rate of interest payable by the consumer or due to the latter, or the amount of other charges for financial services without notice where there is a valid reason, provided that the supplier is required to inform the other contracting party or parties thereof at the earliest opportunity and that the latter are free to dissolve the contract immediately.
Paragraph 1(j) is also without hindrance to terms under which a seller or supplier reserves the right to alter unilaterally the conditions of a contract of indeterminate duration, provided that he is required to inform the consumer with reasonable notice and that the consumer is free to dissolve the contract.”

7. Clause 4 of the Terms and Conditions of the Blemain agreement provides that:
“The Lender may vary the rate of interest per month (after any fixed rate period) from time to time to take account of actual or expected changes in market conditions after giving the borrower not less than 7 days notice in writing.”

8. A variation clause gives a firm power to impose a level of change which the consumer has not explicitly agreed to in advance and which does not require the consumer’s agreement at the time any change is made. As such, it directly affects the balance of power between the firm and the consumer with the risk that it weighs too far in favour of the party with the power. The FSA’s Statement of Good Practice in relation to Fairness of terms in consumer contracts published n May 2005 has the following guidance in what constitutes a valid reason for variation (I have highlighted the relevant parts by underlining) :

“(i) ‘Valid reason’

3.6 Schedule 2 indicates that a variation clause is less likely to be regarded as
‘unfair if it can only be made with a valid reason specified in the contract’.

However, fairness should be assessed in light of the Regulations as a whole and, for example, just specifying a valid reason in the contract may not go far enough to satisfying the test of fairness. It may also be necessary, for example, to provide for notice to consumers that the change has been, or will be, made.

Particular attention to the requirements of fairness is necessary where other factors, such as the consumer being locked-in to a contract (see paragraphs 4.12-4.15 below), may be to the advantage of the firm rather than the consumer.

3.7 Ultimately, only a Court may decide what constitutes a ‘valid reason’. However, a general indication of what we might consider to be a valid reason is one which allows a firm to change contract variables to respond proportionately to changes in general law or to the decisions of the Financial Ombudsman Service, to meet regulatory requirements or to reflect new industry guidance and codes of practice which are there to raise standards of consumer protection. Likewise, a valid reason may be one which allows a firm to respond proportionately to changes in the Bank of England base rate, other specified market rates or indices or tax rates or to reflect other legitimate cost increases or reductions associatedwith providing the particular product or service.

Financial Services Authority 11

17 With regard to any designated investment business, we would remind firms of COB 4.2.13R which requires a firm that has amended its contract without the consumer’s consent, to give at least 10 business days’ notice to the consumer before conducting any designated investment business with that consumer on any amended terms, unless it is impracticable in the circumstances to do so. There are also notice requirements in MCOB 7.

3.8 If a contract contains a clause which provides that the firm may change a contract variable, for example: ‘for any reason we see fit’, ‘for any reason that we consider reasonable at the time of the change’ or ‘to cover unexpected costs’, in our view that firm is not specifying a valid reason in the contract but is, instead, leaving its options open.

We would expect a ‘valid reason’ to be, amongst other things, clearly and unambiguously defined.

3.9 The greater the number of valid reasons given in the contract then, potentially, the less plain and intelligible the variation clause may be.

3.10 We take the view that the Regulations are intended to operate in a free-market economy and do not constrain a firm from managing its business prudently. Therefore we would not intend to enforce the Regulations in a way which impedes the legitimate commercial judgements that firms make having regard to the overall well-being of their business and of all their consumers. However, the Regulations are designed to give effect to a Directive whose purpose is to protect consumers on the assumption that there tends to be an inequality of bargaining power between firms and their consumers. Prudence and fairness are not mutually exclusive factors. Firms will have to make careful judgements when writing their consumer contracts to achieve the right balance.”


1. In my opinion the Blemain power to vary the mortgage interest rates is likely to be held to be unfair as it is too widely drafted. It is vague where the Regulations require clarity. It is one sided whereas the Regulations are made for the protection of consumers. It leaves the consumer unable to obtain any objective appraisal of whether the reason given is the reason stated in the agreement. No particular lending rate or reference is specified.

R v Kettering Magistrates Court

1. Well spotted, if I may say so. It is not a well known authority and it was completely overlooked by HH Judge Waksman when he determined Sternlight and refused to permit a Claimant to ‘reverse engineer’ an interest rate calculation from a stated APR (although nether counsel in that case drew it to his attention).. It is a decision of the Court of Appeal (Shieman LJ and Douglas Brown J) but it is given in the context of advertising regulations and a prosecution for breaching them.

1. A mis-statement of APR does not help Mrs because her agreement is not regulated. It was made before the financial limit for regulation was removed on the 6th April 2008 and at the time of your agreement the limit in value for regulation was £25,000 s the APR point just does not help I am afraid.
Risk Warning Under MCOB 5.6.124

1. Mrs points out that the risk warning “ Yourhomemayberepossessedifyoudonotkeepuprepayments on your mortgage” is not included in the agreement. This is a requirement of a First Mortgage which is regulated by the FSA but not of a second mortgage which is not regulated by the FSA nor by the Consumer Credit Act 1974.

Conclusion.

I think Mrs has a sound case for arguing that the contractual term permitting variation of the interest rate is unfair and a 70% chance of the court finding this term to be unfair and inoperable


I have a lot more advice given, but as my head is all over the place at the moment dealing with other things I will have to post up later. Sparkie if you want to know more then just say as the advice thebarrister gave contains a lot of info which is helpful to both of us.

[jumper999]

Re: Swift Advances Plc?

I will post up shortly what advice my TOP barrister gave on the interest rate on my agreement, please wait folks

[Sparkie1723]

Re: Swift Advances Plc?

wow...im loving this banter lol,think i need a coffee and some hobnobs to watch this one :tinysmile_grin_t:

so what you guys are saying is that the agreement is all correct legally,if not morally.
the apr rate is incorrect,what does this mean in laymans terms?

and what should i do if anythng(send the letter peter mentioned)
if so what are the consequences to me of such a letter being sent?

sorry im not literate on such matters..give me a motorcycle to fix any day

Thats what this forum is all about Dave have a good old friendly Banter, differences of opinions, a good laugh,, no hard feelings just what the DR ordered, this is how we all learn just a little bit more.......and make friends.........trouble is I think I am "Swifts" No 1 Enemy
They labelled me in one Court hearing "As a difficult borrower from the offset who has challenged every aspect of their agreement"

Sparkie

[yorkie-dave]

Re: Swift Advances Plc?

wow...im loving this banter lol,think i need a coffee and some hobnobs to watch this one :tinysmile_grin_t:

so what you guys are saying is that the agreement is all correct legally,if not morally.
the apr rate is incorrect,what does this mean in laymans terms?

and what should i do if anythng(send the letter peter mentioned)
if so what are the consequences to me of such a letter being sent?

sorry im not literate on such matters..give me a motorcycle to fix any day

[Sparkie1723]

Re: Swift Advances Plc?

Yes it must that is why this agreement is possibly unenforceable.
Peter

Then again the above ruling over rides any consumer legislation ....it specifically states so.
It is criminal ......and also an offence under the Procees of Crime act 2002 ...in that "no-one should gain and no-one should suffer loss from a criminal offence."........this is one of the issues that will be ruled on in the High Court case against Swift coming up on 18th January 2012 at which I am a witness.
This could not only render the agreement unenforceable .....but VOID

Sparkie

Remember everyone I have no legal training and my views are not to taken as legal advice.........I am a dumb 74 year old senile auto spark

Re: Swift Advances Plc?

interest on the credit must be correct on a variable rate loan.

Yes it must that is why this agreement is possibly unenforceable.
Peter

Re: Swift Advances Plc?

[quote=Sparkie1723;221918]

Hi Peter,

Thanks for that I know that you are much more conversant with such matters and take all you say under my hat for future ref ..........because of this you will be more conversant with the APR tolerances ....if this calulation is correct I have posted, then this will apply more than likely??????

Regina -v- Kettering Magistrates' Court ex parte MRB Insurance Brokers Limited [2000] EWHC Admin 320

4 Apr 2000
Admn
Schiemann LJ, Douglas Brown J
Consumer, Crime, Financial Services
Casemap
1 Cites
A statement of an APR in the sale of a financial services product remained a price indication, and, if it was miscalculated, that was a misleading price indication, and criminal, despite provisions in the Consumer Credit legislation. What was given was a price under the contract: "The total amount payable under the contract which can properly be described as the price, should be arrived at by reference to the APR. The APR given was very substantially below the true APR and Mr Pulford Junior was given a totally false indication as to how the aggregate of the sums required to be paid would be determined. In those circumstances clearly a misleading indication as to price was given. The question as to the enforceability of the agreement is quite irrelevant." As to the effect of the section: "Section 170(1) is not an obstacle to a prosecution under the Consumer Protection Act 1987, where the provisions of Section 20 are apt to cover a factual situation such as that which arose in this case."

Sparkie
Remember everyone I have no legal training and my views are not to taken as legal advice.........I am a dumb 74 year old senile auto spark

Yes the APR is the main indicator of the credit bargain and is therefor a major factor in in the possible predudice caused to the lender.

However in this cse we are looking at unenforceability under section 127 the APR is not a prescribed term, interst is.

Unenforceability neans the court CANNOT enforce. A breach of the requiremnts of the accuracy in an APR can still be enforced by order of the court.
Peter

[Ihaterbs]

Re: Swift Advances Plc?

interest on the credit must be correct on a variable rate loan.

[Sparkie1723]

Re: Swift Advances Plc?

[quote=peterbard;221916]

MOrning Peter

As I said before that's what I want someone to play Devils Advocate............... But the way I see is ....its the 2004 CCRegs that came into force in May 2005.
This is what a top consumer barrister has put up on his website

http://www.johnpughschambers.co.uk/C..._Regs_1983.pdf



Sparkie
Remember everyone I have no legal training and my views are not to taken as legal advice.........I am a dumb 74 year old senile auto spark

Hi Sparkie not playing devils advocate in this instance. Your top barristor is correct the 1442 did come int effect in May 2005 this agrement is dated 2004, the parts that you itemise refer to the form of the agreement( the Key terms etc.) and were in the new ammendments, not in the orriginal regulations, and therfore not aplicable to agreements before May 2005.

Peter

Hi Peter,

Thanks for that I know that you are much more conversant with such matters and take all you say under my hat for future ref ..........because of this you will be more conversant with the APR tolerances ....if this calulation is correct I have posted, then this will apply more than likely??????

Regina -v- Kettering Magistrates' Court ex parte MRB Insurance Brokers Limited [2000] EWHC Admin 320

4 Apr 2000
Admn
Schiemann LJ, Douglas Brown J
Consumer, Crime, Financial Services
Casemap
1 Cites
A statement of an APR in the sale of a financial services product remained a price indication, and, if it was miscalculated, that was a misleading price indication, and criminal, despite provisions in the Consumer Credit legislation. What was given was a price under the contract: "The total amount payable under the contract which can properly be described as the price, should be arrived at by reference to the APR. The APR given was very substantially below the true APR and Mr Pulford Junior was given a totally false indication as to how the aggregate of the sums required to be paid would be determined. In those circumstances clearly a misleading indication as to price was given. The question as to the enforceability of the agreement is quite irrelevant." As to the effect of the section: "Section 170(1) is not an obstacle to a prosecution under the Consumer Protection Act 1987, where the provisions of Section 20 are apt to cover a factual situation such as that which arose in this case."

Sparkie
Remember everyone I have no legal training and my views are not to taken as legal advice.........I am a dumb 74 year old senile auto spark

Re: Swift Advances Plc?

[quote=Sparkie1723;221913]MOrning Peter

As I said before that's what I want someone to play Devils Advocate............... But the way I see is ....its the 2004 CCRegs that came into force in May 2005.
This is what a top consumer barrister has put up on his website

http://www.johnpughschambers.co.uk/C..._Regs_1983.pdf



Sparkie
Remember everyone I have no legal training and my views are not to taken as legal advice.........I am a dumb 74 year old senile auto spark

Hi Sparkie not playing devils advocate in this instance. Your top barristor is correct the 1442 did come int effect in May 2005 this agrement is dated 2004, the parts that you itemise refer to the form of the agreement( the Key terms etc.) and were in the new ammendments, not in the orriginal regulations, and therfore not aplicable to agreements before May 2005.

Peter

Re: Swift Advances Plc?

APR Calculator

Loan Amount (C): £ 14,935
Extra Cost (E): £ 808.38
Interest Rate % (R): 15.4
No. of Months (N): 120

APR:
16.8200 %

The above is what I believe the APR should be shown as on your agreement...............this is not my calculations but by one of the best APR calculators there is available

Sparkie

Remember everyone I have no legal training and my views are not to taken as legal advice.........I am a dumb 74 year old senile auto spark

HI Sparkie

Yes and you are right using the figures you are given. Because the interst rate is incorrect.

I made an error in believing that the interst on this kind of agreement was not a prescribed term, it is because it is variable. This is why i did not take it into consideration. Nobody is perfect.

However you have to take these things with care, no point screeming unenforceablity until you are sure of the facts.

As far as the APR calculation is concerned i use the formual prescribed in the TCC regulation 1980 as ammended and a spreadsheet.


Peter

[Sparkie1723]

Re: Swift Advances Plc?

The agreement regulations you refer to are the ammended version and include the si 1442 si. On the later copies of the 1983/1553 regs they are include with the modifications in Square brackets.
As i said these did not come into effect until may 2005. THis i why everyone changed their format.
In any case a breach of this kind will not render an agreement unenforceable it would meerly need an order of the court to enforce which would ceratinly be issued.
Peter

MOrning Peter

As I said before that's what I want someone to play Devils Advocate............... But the way I see is ....its the 2004 CCRegs that came into force in May 2005.
This is what a top consumer barrister has put up on his website

http://www.johnpughschambers.co.uk/C..._Regs_1983.pdf



Sparkie
Remember everyone I have no legal training and my views are not to taken as legal advice.........I am a dumb 74 year old senile auto spark