Swift Advances Plc?

[Sparkie1723]

Re: Swift Advances Plc?

It is my understanding that a legal mortgage with full title rights is that both the loan/mortgage agreement AND the Title deed must be witnessed by a solicitor ........would/could anyone confirm this?
If This is correct then this is another problem for Swift Advances plc

Sparkie

[Dougal16T]

Re: Swift Advances Plc?

Sparkie, and all my colleagues on Beagles

I have said this many times: Your last post is the clearest indication I have ever seen (as A PC and afterwards as a Civil Prosecutor for the Crown), that the offence here is

Obtaining a pecuniary advantage

s16 TA68 states that:
(1) A person who by any deception dishonestly obtains for himself or another any pecuniary advantage shall on conviction on indictment be liable to imprisonment for a term not exceeding five years.
(2) The cases in which a pecuniary advantage within the meaning of this section is to be regarded as obtained for a person are cases where:-
(a) Repealed by s5(5) Theft Act 1978;
(b) he is allowed to borrow by way of overdraft, or to take out any policy of insurance or annuity contract, or obtains an improvement of the terms on which he is allowed to do so; or
(c) he is given the opportunity to earn remuneration in an office or employment, or to win money by betting
(3) For the purposes of this section "deception" has the same meaning as in section 15 of this Act.
The elements of the actus reus are similar to the offence of obtaining property by deception: there must be a deception – this has the same meaning as for s.15 (according to s.16(3) TA 1968) there must be causation – as above there must be the obtaining of a pecuniary advantage. The only definition of "pecuniary advantage" is offered in s16(2): (a) (repealed by TA 1978); (b) a person is allowed to borrow by way of overdraft, or to take out a policy of insurance or annuity contract, or obtains an improvement of the terms on which he is allowed to do so, or (c) a person is given the opportunity to earn remuneration or greater remuneration in an office or employment, or to win money by betting. Section 16(2)(b) covers the situation in MPC v Charles above where writing the cheque backed by a card obtains an unauthorised overdraft even though the deception operates on the mind of the person accepting the cheque and not on the mind of a bank officer. In most cases, the granting of credit may be machine-based with reference to a bank officer only being made when larger sums of money are involved. Where the pecuniary advantage is the obtaining of an overdraft facility at a bank, it is only necessary to show that the facility was granted, not that the defendant actually used the facility.
Section 16(2)(c) clearly covers those people who claim to have qualifications which are in fact false, and because of these qualifications they are employed. Further, according to R v Callender (1992) CLR 591 where a self-employed accountant made deceptions, the section was held to apply equally to employment as an independent contractor and employment as a servant. The defendant is charged under s16 if the deception is detected before payment is made. Thereafter, the defendant has obtained payment under s15. As to betting shops, if the defendant goes into the shop just before the horse race is due to start, places the bet and very slowly begins to count out the stake money as the commentary relays the progress of the horses, the opportunity to win has been obtained and the defendant can be convicted if they pick up the money and run out when it becomes obvious the nominated horse will not win.
[edit]Mens rea
There are two elements to the mens rea of this offence:
there must be a deliberate or reckless deception (see above)
the defendant must be dishonest (see above).
But there is no need to prove an intention to permanently deprive.
[edit]References

Allen, Michael. Textbook on Criminal Law. Oxford University Press: Oxford. (2005) ISBN 0-19-927918-7.
Criminal Law Revision Committee. 8th Report. Theft and Related Offences. Cmnd. 2977
Law Commission Consultation Paper No.15. Fraud and Deception. (October, 1999) [2]
Griew, Edward. Theft Acts 1968 & 1978, Sweet & Maxwell: London. ISBN 0-421-19960-1
Ormerod, David. Smith and Hogan Criminal Law, LexisNexis: London. (2005) ISBN 0-406-97730-5
Smith, J. C. Law of Theft, LexisNexis: London. (1997) ISBN 0-406-89545-7.
Smith, J. C. Obtaining Cheques by Deception or Theft (1997) CLR 396
Smith, J. C. :Stealing Tickets (1998) CLR 723

Although this is no longer in the Theft Act, it is now found in the Fraud Act 2006 under


Section 2 Fraud by false representation

(1)A person is in breach of this section if he—

(a)dishonestly makes a false representation, and

(b)intends, by making the representation—

(i)to make a gain for himself or another, or

(ii)to cause loss to another or to expose another to a risk of loss.

(2)A representation is false if—

(a)it is untrue or misleading, and

(b)the person making it knows that it is, or might be, untrue or misleading.

(3)“Representation” means any representation as to fact or law, including a representation as to the state of mind of—

(a)the person making the representation, or

(b)any other person.

(4)A representation may be express or implied.

(5)For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).

There is no longer any requirement to prove 'intent' of the person committing the Fraud.

I think this says it all, and if I were Swift staff members I would be seriously thiinking of putting mu head between my legs and kissing my a**e goodbye!!

Best wishes to my fellow Beagles

Dougal

[Sparkie1723]

Re: Swift Advances Plc?

Hi Dougal
Thanks for the previous post ...I think now the screws are being turned tighter by the minute.....it means they increased my partners income by £2685.18 Per Annum.
I'm just waiting for the next contact from the Cheshire Police

Sparkie

[Guest]

Re: Swift Advances Plc?

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

THis is the above act. i have highlighted the relevant bits

61.—(1) Entering into a regulated mortgage contract as lender is a specified kind of activity.
(2) Administering a regulated mortgage contract is also a specified kind of activity, where the contract was entered into after the coming into force of this article.
(3) In this Chapter—
(a)a “regulated mortgage contract” means a contract under which—
(i)a person (“the lender”) provides credit to an individual or to trustees (“the borrower”); and
(ii)the obligation of the borrower to repay is secured by a first legal mortgage on land (other than timeshare accommodation) in the United Kingdom, at least 40% of which is used, or is intended to be used, as or in connection with a dwelling by the borrower or (in the case of credit provided to trustees) by an individual who is a beneficiary of the trust, or by a related person;
(b)“administering” a regulated mortgage contract means either or both of—
(i)notifying the borrower of changes in interest rates or payments due under the contract, or of other matters of which the contract requires him to be notified; and
(ii)taking any necessary steps for the purposes of collecting or recovering payments due under the contract from the borrower;
but a person is not to be treated as administering a regulated mortgage contract merely because he has, or exercises, a right to take action for the purposes of enforcing the contract (or to require that such action is or is not taken);
(c)“credit” includes a cash loan, and any other form of financial accommodation.
(4) For the purposes of paragraph (3)(a)(ii)—
(a)a “first legal mortgage” means a legal mortgage ranking in priority ahead of all other mortgages (if any) affecting the land in question, where “mortgage” includes charge and (in Scotland) a heritable security;
(b)the area of any land which comprises a building or other structure containing two or more storeys is to be taken to be the aggregate of the floor areas of each of those storeys;
(c)“related person”, in relation to the borrower or (in the case of credit provided to trustees) a beneficiary of the trust, means—
(i)that person’s spouse;
(ii)a person (whether or not of the opposite sex) whose relationship with that person has the characteristics of the relationship between husband and wife; or
(iii)that person’s parent, brother, sister, child, grandparent or grandchild; and
(d)“timeshare accommodation” has the meaning given by section 1 of the Timeshare Act 1992 (1).

This is not bad news in my opinion.

More later

Peter

[jumper999]

Re: Swift Advances Plc?

Good luck sparkie and bloody well done for your determination in this fight.

If I had half the spirit and courage as you have at your age then I will elect myself in taking David Cameron's place at number 10.

[Guest]

Re: Swift Advances Plc?

Hi

So this explains why the first motguage is exempt and the second one is not under secion 16 c.
The good news i think is that this means that section 140 will apply so hopefully all those bits of information about the reptiles who have given you this agreement will be applicable for evaluation under the unfair terms regulaions.

Unless i am wrong,which is possiblle.
Peter

[Sparkie1723]

Re: Swift Advances Plc?

Hi

So this explains why the first motguage is exempt and the second one is not under secion 16 c.
The good news i think is that this means that section 140 will apply so hopefully all those bits of information about the reptiles who have given you this agreement will be applicable for evaluation under the unfair terms regulaions.

Unless i am wrong,which is possiblle.
Peter

Had a conversation with one of the secured lending team investigators this afternoon and explained about the condition stating that it states that it is a legal mortgage charge with full title rights ...exactly what our First mortgage states.
The restriction on our deeds by each mortgagor are exactly the same. Abbey have an FSA licence Swift Advances plc do not.

He made notes as he had their conditions of the charge in front of him as we spoke.

He said that he would obtain the answer from their legal team which as you know consists of Barristers and solicitors who can define the Act....especially now that the OFT is a corporate body...........no longer has a registrar general they have a full board of Directors..
They cannot give independant legal advice but as this would affect thousands of borrowers they will more than likely define the answer

Sparkie

[Guest]

Re: Swift Advances Plc?

To illustrate from the OFT guidence on the 2006 ammendments

Section 21: Interpretation of ss.140A and 140B of the 1974 Act

50.

Section 21 inserts a new section 140C after the new section 140B (inserted
into the 1974 Act by section 20). The new section 140C defines the types of
agreements that are covered by sections 140A and 140B. Any agreement that
involves the provision of credit to an individual, whether or not regulated by the 1974
Act (except as specified (see paragraph 48 above)), is covered. The sections also
cover, through the definition of “related agreement”, the practice where the creditor
enters into successive credit agreements with a debtor for the purpose, for example, of
increasing the total amount of the debt or obtaining multiple fees from the debtor for

setting up each loan.

Peter

[Guest]

Re: Swift Advances Plc?

I think the act is clear in that ranking in priority means," the amount of the loan" , the time when the loan was taken, out and how much of the loan was spent on the actual property.
Has you second charge the same status as the first in these requirements?
Peter

[Sparkie1723]

Re: Swift Advances Plc?

I think the act is clear in that ranking in priority means," the amount of the loan" , the time when the loan was taken, out and how much of the loan was spent on the actual property.
Has you second charge the same status as the first in these requirements?
Peter

Hi Peter

The amount of the second legal mortgage was lower tha our first legal mortgage

Second one taken out long after our First mortgage

2 thirds of the second mortgage was spent on property repairs ie complet new concrete floors to the ground floors ...underground central heating pipes corroded away and water leaked for several years undetected insurance would not pay out because under floor copper pipes just laid in concrete was illegal when the house was buit in 1973.

Am I right in sayiny The Financial Services Act refers only to First Charge Mortgages that would be £25K and below that woul be regulated by the CCA.........above would be FSA that is I think where the point of law argument sets in.....no one has noticed what Swift Advances plc conditions of the legal mortgage says or means until now. It is a second Legal mortgage above £25K
I think I am getting a little out of my depth here and why I have asked for your take on matters Peter


Sparkie

[Sparkie1723]

Re: Swift Advances Plc?

Worth a look at the 2003 Guidance by the OFT.
http://www.newham.gov.uk/NR/rdonlyre...Agreements.pdf

It mentions the debtor not being able to draw more than £25,000 at a time we did not receive a cheque for £43,000. we received a cheque each for £21,500 in our separate names.

There might be an argument in that we each have a reguated loan agreement?????

The agreement says that it is joint and several.........our property is in joint names we are not married we are partners...........when we die our equal shares of the property would be split between each of our separate legal survivors......my share of 50% would be divided between my 4 children.......my partners 3 children would share 1 third each of her 50%............Could it not be argued by splitting the total loan into 2 cheques they have negated the joint and several term and made each £21,500 a sole responsibility.........again more legal arguments...i.....ts getting more and more complicated ........I think its me making it so ..... is it me making it so or has Swift advances plc???

I'll have to give it a rest my "old senile brain" can't cope with what has been unearthed today. ......I'm nearly 75 now and its tiring work

Sparkie

[Guest]

Re: Swift Advances Plc?

Hi Peter

The amount of the second legal mortgage was lower tha our first legal mortgage

Second one taken out long after our First mortgage

2 thirds of the second mortgage was spent on property repairs ie complet new concrete floors to the ground floors ...underground central heating pipes corroded away and water leaked for several years undetected insurance would not pay out because under floor copper pipes just laid in concrete was illegal when the house was buit in 1973.

Am I right in sayiny The Financial Services Act refers only to First Charge Mortgages that would be £25K and below that woul be regulated by the CCA.........above would be FSA that is I think where the point of law argument sets in.....no one has noticed what Swift Advances plc conditions of the legal mortgage says or means until now. It is a second Legal mortgage above £25K
I think I am getting a little out of my depth here and why I have asked for your take on matters Peter


Sparkie

All first motgages whatever value are covered under the FSA if taken out after december 2005 before that it they where regualted under a voluntary code of practice. First mortgages have never ben regulated by the CCA they fall into the exempyion of section 16C of the CCA

Second mortgages are regulated under the cca provided that they are within the financial limit applicable at the time.

If your second mortgage was taken out before April 2008 and was over 25K it will not be regulated, but it will still come under the section 140 protection because it is still an agreement.

Peter

[Guest]

Re: Swift Advances Plc?

Worth a look at the 2003 Guidance by the OFT.
http://www.newham.gov.uk/NR/rdonlyre...Agreements.pdf

It mentions the debtor not being able to draw more than £25,000 at a time we did not receive a cheque for £43,000. we received a cheque each for £21,500 in our separate names.

There might be an argument in that we each have a reguated loan agreement?????

The agreement says that it is joint and several.........our property is in joint names we are not married we are partners...........when we die our equal shares of the property would be split between each of our separate legal survivors......my share of 50% would be divided between my 4 children.......my partners 3 children would share 1 third each of her 50%............Could it not be argued by splitting the total loan into 2 cheques they have negated the joint and several term and made each £21,500 a sole responsibility.........again more legal arguments...i.....ts getting more and more complicated ........I think its me making it so ..... is it me making it so or has Swift advances plc???

I'll have to give it a rest my "old senile brain" can't cope with what has been unearthed today. ......I'm nearly 75 now and its tiring work

Sparkie

Hey i am right behind you, i think we are confusing ourselves a bit, you had it right earlier in the thread i will be on line tomorrow.

The thing to remember is that you have the statutory assitance you need to show unfairness to the court in section 140, all those irregularities you have discovered can be used, section 140 gives a very broad protection to the consumer in that it takes into account anything done or not done at any time in or before the contract.

God my spelling is awful gets worse when i get tired.
Peter

[Sparkie1723]

Had a good nights sleep and have been pondering all Peter has said.......and as he has pointed out its hard work trying to untangle isues.

So I post this up for discussion.........and by doing so probably making waves without water.


With the help of the information that Peter has kindly provided, I “think” I have finally worked out what an “unregulated” loan is, and put this up for discussion.

Because of section 16 any loan of any amount secured on land is classed as an exempt agreement….i.e. exempt from regulation of the CCA Act.

This means even loans under £25,000 if it is secured on land is an exempt agreement. (see section 107 of the CCA)

The Financial Services Act Peter has posted states that this Act does not regulate any loan where less than 40% is spent on the property.

This means that if you have borrowed money under a secured loan and used it for other purposes or more that 60% of it for other purposes.

Then it is these that are “unregulated”. By either the CCA or the FSA (Act) or the Financial Services Authority.

Any loan where more 40% or more has been spent on the property on repairs, improvements such double glazing, extensions, patios etc, etc.

Then it is regulated by the FSA, and The Financial Services............or is it????

Section 107 of the CCA which deals with loans under which a security has been given,…….. I think this means such agreements secured by Jewellry, Car, Caravan or other valuable item……section 107 does not mention security give on land.

In our case we borrowed £43,000..( £46,955 including fees and charges) we spent £30,000 on repairs to our property………so its regulated by the FSA.............................or is it???

Does this make sense??? Or are they more ramblings of a dumb senile old auto spark


Sparkie

[Guest]

Re: Swift Advances Plc?

Had a good nights sleep and have been pondering all Peter has said.......and as he has pointed out its hard work trying to untangle isues.

So I post this up for discussion.........and by doing so probably making waves without water.


With the help of the information that Peter has kindly provided, I “think” I have finally worked out what an “unregulated” loan is, and put this up for discussion.

Because of section 16 any loan of any amount secured on land is classed as an exempt agreement….i.e. exempt from regulation of the CCA Act.

No only a secured mortgage as defined by the Financial Services and Markets Act 2000.(see earlier in this thread.) Which states the exemption nly applies to your first loan. This deffinition is the same for the one given by the FSA . This exemption ony applies to your inital mortgage.

This means even loans under £25,000 if it is secured on land is an exempt agreement. (see section 107 of the CCA)

No only if it is your firts mortgage, see above. Section 107 is a request for secured loan info, this proves the point, as it would not be possible to request info uder the act if it was exempt,it would not exist.

The Financial Services Act Peter has posted states that this Act does not regulate any loan where less than 40% is spent on the property.

No the figure of 40% is the qualifying point if thre loan sum is used to purchase $0% of the land then the whole agreement is regulated by the FSA

This means that if you have borrowed money under a secured loan and used it for other purposes or more that 60% of it for other purposes.

Then it is these that are “unregulated”. By either the CCA or the FSA (Act) or the Financial Services Authority.

Any loan where more 40% or more has been spent on the property on repairs, improvements such double glazing, extensions, patios etc, etc.

Then it is regulated by the FSA, and The Financial Services............or is it????

Section 107 of the CCA which deals with loans under which a security has been given,…….. I think this means such agreements secured by Jewellry, Car, Caravan or other valuable item……section 107 does not mention security give on land.

In our case we borrowed £43,000..( £46,955 including fees and charges) we spent £30,000 on repairs to our property………so its regulated by the FSA.............................or is it???

Does this make sense??? Or are they more ramblings of a dumb senile old auto spark


Sparkie

No not ranting.

The thing is that these figures £25k, 40% etc are all qualifying points, they do not mean that only that amount is regulated or unregulated.

If you take a cca loan out for say £60k before April 2008 then the whole loan is unregulasted by the cca not just the remaining £35k.

Peter