Swift Advances Plc?

[Dougal16T]

Morning all

Here is my thought for the day! :

If a company - a plc to be exact- did not exist as a legal entity until 6th October 2010, does that make any agreements made by consumers with the entity:

(a) unenforceable by that entity?

(b) null and void and capable of full rescission?

Answers on a postcard......??

Best wishes

Dougal

ps : There are no prizes for guessing who I am talking about!! :beagle:

[Sparkie1723]

Re: Swift Advances Plc?

Morning all

Here is my thought for the day! :

If a company - a plc to be exact- did not exist as a legal entity until 6th October 2010, does that make any agreements made by consumers with the entity:

(a) unenforceable by that entity?

(b) null and void and capable of full rescission?

Answers on a postcard......??

Best wishes

Dougal

ps : There are no prizes for guessing who I am talking about!! :beagle:

Hi Dougal,

I am not sure what you mean by this .........the Company I believe you are talking about was a legitimate incorporated Company registered with company's house as a PLC.
The history of this is that
In 1984 it registered as a Private Limited Company with Companies House

In 1995 it changed itself to a PLC and notified companies house of that chamnge.

The only issue I have over this is that "normally" a company does this to enable shares to be offered to the public in general.

This did not happen in the case of this company......the other main reason for a company to do this without offering shares to the public is to give more credibilty to its credit standing and status....ie that it would "appear" that the company would be more responsible in its business operation as it would be considered to be handling consumer investments and be looking after it in a responsible manner to make a profitable return for their investment money.....quite reasonable business operation.

But what we do know is that no shares are offered to the public the shareholders remained the same as they were as the Private limited company.

The company were able to use this newly acquired credit status to boost and be able borrow more money which they did................if they had not become a plc and borrowed this money as a private one ....the director shareholders would have been personally responsible for the debts.......becoming a PLC limited the directors personal responsibility further than being a Director of a Limited Company.

Crafty immoral move in my personal opinion....but quite legal.


Hope this assists in some way



Sparkie

[Sparkie1723]

Re: Swift Advances Plc?

One of the other major issues I have with Swift Advances plc is the use of the trading name of Swift Advances prior to the 6th October 2010.

Conducting regulated consumer business under this trading name is/was, under section 39 (2) of the Consumer Credit Act 1974 deemed an offence and a criminal one at that..for reason it was not a named trading name on their CCA licence

Furthermore up until November 2009 the trading name of Swift Advances belonged to another completely unrelated limited company.

It has been argued by Swift Advances plc that the use of it in conducting unregulated agreements the above was/is “irrelevant” as they do not fall under the remit of the CCA, that maybe so.
The two issues here are
1…As it belonged to another company that cannot be considered "irrelevant," as it makes one believe that they could be or were dealing with this other company. Which was in fact Swift Finance (UK) Ltd. as shown below
CCA Search :: CCA Search Results :: Licence Details


Application / Licence Details




Licence Number:0560151
Licence Status:Lapsed on 03/11/2009

Current Applicant / Licensee:

Business NameCompany Registration NumberSwift Finance (UK) Limited5208034

Categories:

Consumer credit Consumer hire Credit brokerage Credit reference agency Debt adjusting/counselling Debt collecting

Right To Canvass Off Trade Premises:Yes


Trading Name(s) (Current):

Swift Advances Swift Finance Swift Homeloans Swift Insurance Services Swift Mortgages Swift Solutions

Trading Name(s) (Historic):

Swift Insurance





2…The second is that despite the CCA Act, using this trading name in any Consumer Credit business (regulated or unregulated) and /or related business prior to 6th October 2010 was a misleading misrepresentation of fact, and a known misrepresentation of fact, contrary to the Misrepresentation Act 1967, that also is deemed an offence and a criminal one at that.

Just my personal opinion

Sparkie

[Atlantis]

Re: Swift Advances Plc?

Hi Dougal, Sparkie & All,

I wonder what your thoughts are as to why the company name was changed from Swift Advances plc to Swift Advances ltd and then back to Swift Advances plc between 11/05/2004 and 13/05/2004 (2 days), as stated in the Companies House register.

Also, surely there must be a limit as to how long CCA licenced activities can be carried out by a company without their licence actually being renewed? Swifts renewal has been outstanding since 14/04/2010! :suspicious:

Atlantis

[Sparkie1723]

Re: Swift Advances Plc?

Hi Dougal, Sparkie & All,

I wonder what your thoughts are as to why the company name was changed from Swift Advances plc to Swift Advances ltd and then back to Swift Advances plc between 11/05/2004 and 13/05/2004 (2 days), as stated in the Companies House register.

Also, surely there must be a limit as to how long CCA licenced activities can be carried out by a company without their licence actually being renewed? Swifts renewal has been outstanding since 14/04/2010! :suspicious:

Atlantis

Hi Atlantis,
I haven’t looked into this in too much great detail but I’m pretty certain it had something to do with the fact that they Swift Advances plc/Ltd and Swift 1st Ltd had to “swop” places with regard to their FSA and CCA licences and the selling of Insurances, and this led to slight problems with the informing of the authorities.

After Friday I will have a deeper look into this, unless you would like to follow the trail back…..I’m working on my case for Friday and have some real serious stuff to ask the Judge to make Swift do, I’m asking for a full discovery order as I have said.

There is a very strong possibility he will make that order, we will find out some things then……about what they did with all our loans when they sold them to the “Kestrel Companies” to borrow more money.

Re the CCA licnce the Consumer Credit Act allows a lender to carry out ctivities UNTIL a decision is made on whether the licence will be granted

Sparkie

[Sparkie1723]

Re: Swift Advances Plc?

This is an extract from a letter from the OFT…I have quite a few of these with the same sort of statement.

I do not agree with what it says here about this not rendering the agreements unenforceable

“The Act also requires an applicant to have all names under which he intends to
carry on licensable activities on the consumer credit licence. A licensee who carries
on a licensable activity under a name not specified in his licence commits an
offence under the Act; however this will not render relevant credit agreements
unenforceable”.

I cannot for the life of me see the officials logic who make such statements as the above statement.

It has been confirmed by other officials at the OFT that this offence is/would be deemed a criminal one.

If the agreements are set up by way of a criminal offence the result of that offence is an unlawful act they are making you pay them back plus interest and charges that are unlawfully applied……….the agreement cannot be enforced as that would be condoning the criminal offence.

All agreements prior to 6th October 2011 were set up by SWIFT ADVANCES the unlicensed trading name the use of which was a criminal offence.

The agreements must be a void agreements by way of the criminal offence

Do you follow my argument,….. think about the repercussions of a ruling condoning a criminal offence………it could be used in all sorts of scenarios ….criminals could get away with murder……that is not a pun it is and would be fact..

Sparkie

[Sparkie1723]

Re: Swift Advances Plc?

With reference to our case...........It was SWIFT ADVANCES who wrote to our first mortgage lender requesting that they gave unconditional agreement for a legal charge to be entered on our title deeds in their name SWIFT ADVANCES....their permission was given to SWIFT ADVANCES..................but the registration was entered by SWIFT ADVANCES PLC.....another criminal offence.
I obtained a copy of that letter from our first mortgage company. Also other correspondence from SWIFT GROUP LEGAL SERVICES ....another unlicensed trading name used by Swift Advances plc.

Sparkie

[Atlantis]

Re: Swift Advances Plc?

Hi Sparkie,

Thanks for that. :thumb:

It would appear that Swift Advances change of entity coincided with their purchase by Alchemy Partners LLP on 11/05/2004 and Swift 1st changing from plc to ltd on the same day.

I still can't understand though why it seems to be taking the OFT so long to conclude their investigations!

Anyway Sparkie, the very best of luck for Friday, and keep us all posted as to how things go!

Atlantis

[Sparkie1723]

Something for all Swifties to consider working on.....this is an examination of the most popular agreement Swift Advance plc use.....some are a little different

Swift Advances plc………Unregulated Credit Agreements.
It is fact that Unregulated Credit agreements appear to be exactly what they say they are.
They are not regulated by the Consumer Credit Act 1974 (CCA) or the Consumer Credit Agreement Regulations 1983 nor the amended Regulations 2004 (CCA Regs) which came into effect in May 2005. Except Section 140
This has been confirmed and argued in Courts by Swift Advances plc by the Barristers they have engaged in such proceedings, it has been confirmed by Recorders and Judges that is a matter of fact. They do not apply to unregulated agreements

Therefore a different approach must be taken by Defendants when faced with Swift Advances plc enforcing these agreements in possession hearings.

We have to look at the construction of these agreements and not even think of the consumer statutes for reason they do not apply ( except the Unfair Terms in Consumer Credit Contracts and Consumer Protection Regulations), however for the purpose of these arguments these 2 statutes are not considered, arguments are concentrated around the following;

The first point that must remain foremost in the minds of the readers is that it is only in the CCA and CCA Regs that the phrase or words "Charges for Credit" are used.
We must apply common contract law of tort

We now look at the construction of Swift Advances plc unregulated credit agreement such as the one attached and referred to in these papers.

The First Box stating; Key Financial Information.
It is seen that it says

Amount of Credit; Principle Loan; Insurance loan ( if any) and Total
The other Information in this box is;
The Amount of monthly repayments; the Number of payments to be made and other explanatory Information.
It is to be noted that there is no interest rate shown in this box.

The Second Box below this, states:
Fees payable which say;
Brokers fee; Loan Administration Fee; Title Indemnity Fee; Rate of Interest; % p.a

It is here that the information clearly shows that the regulations are not considered in the construction of these agreements and they are not applied in the construction of said agreements, for reason these fees are not stated to be "charges for credit" because it is only the CCA statutes that state what is to be contained in Regulated Agreements.

Heavy emphasis is made of this "unregulation status" of their agreements by Swift Advances plc in the court proceedings referred to above and in correspondence from Swift Advances plc and the various other trading styles that they use.

These fees are not totalled up as would be required under a regulated agreement, they are not referred to as "charges for credit" as would be required under a regulated agreement, there is no mention of a Total Charge for Credit as would be required under a regulated agreement.

The borrower therefore is without doubt made to understand they are not charges for credit.

The agreement makes the borrower to believe this for reason above.
See Section 20 of the CCA Act 1974
We therefore have the fact in front of us that they are not considered or stated to be Charges for Credit, so what are they?
The answer to this question I submit is found just below the signature boxes on the front of the agreement which states;

You should note the following;
1. We agree to lend you the total amount of credit and the broker fee, loan administration fee and title indemnity fee (if any) shown above (the "Total Loan Amount")
Besides there still being not being any reference or statement of "Charges for Credit" and /or "Total Charges for Credit" there is nowhere on the agreement that states Total Loan Amount or what this
Total Loan Amount is.

We therefore have the questions;
Does it mean the Total shown in First Box? or does it mean the totals of the Second Box of the three sets of figures in that Box?
It would be straight forward if this was the case, but it cannot be because the total shown in the First Box is minus the three sets of figures in the second Box, and the fact that the argument has been out forward that the are not stated to be "Charges for Credit" and the reasons why they are not stated to be so.



We must go to the Note 1 quoted above;
" We agree to lend you etc etc etc"
It is here that it is stated what the three sums of Fees are, they are stated to be loans Loans, the words "We agree to lend" is a complete statement of fact that a loan is being made, not a "Charge for Credit as it would be under the CCA Regulations for reason the regulations do not apply to unregulated agreements, a fact Swift Advances plc consistently rely on in their arguments.

Bluntly in the words of a prominent Senior High Court Judge in a recent Court proceedings he said " A dog cannot have two tails"

Therefore I argue that;
It cannot be the case that part of the regulations apply and others not, they either apply or they do not, and it is an absolute fact that they do not, and as argued by Swift Advances plc that they cannot.

The fact is that they are loans, not "charges for credit" now means that we have a completely different light on these agreements.
It is in fact a "Partly Regulated" agreement as follows;

The main loan ( above £ 25000) is an Unregulated Unrestricted use Credit agreement.

The Broker Fee is a Debtor-Creditor-Supplier restricted use credit agreement falling under section 11 (1) (b) of the Consumer Credit Act 1974 and section 12 (c) of the afore said Act.

The Loan Administration Fee is also a Debtor-Creditor-Supplier restricted use credit agreement falling under section 11 (1) (b) of the Consumer Credit Act 1974 and section 12 (c) of the afore said Act.

The Title Indemnity Fee is also a Debtor-Creditor-Supplier restricted use credit agreement falling under section 11 (1) (b) of the Consumer Credit Act 1974 and section 12 (c) of the afore said Act.
It is also a multiple credit agreement falling under section 18 (1).

The agreement is therefore a "Partly Regulated Credit Agreement" and the heading of the agreement should state that it is.
In a manner such as this
This is a Consumer Credit Act "Partly Regulated" by the Consumer Credit Act 1974

These arguments have been put forward by me in our Court case but because the Judge thought I was a dumbo as all judges think LIPs are, and knew nothing in comparison with a Barrister, dismissed these arguments, the Court should declare the agreement not just unenforceable but more than likely Void.

No Court will do that. But the judges are wrong, an LIP stands no chance at all. But these arguments are valid arguments and have a great deal of merit.

I have no legal training…..BUT!! I do have a logical mind……. I Think??!!

I haven't put these arguments to a Barrister but someone may wish to do so nfor a good opinion on it

Sparkie

This is just my opinion

[Sparkie1723]

Re: Swift Advances Plc?

This is what John Webster sent to The Mortgage Strategy

From John Webster

While reading the November 12 issue of Mortgage Strategy I was disappointed to come across Guy Anker's article entitled 'Secured loans spell trouble for clients', in which he questions the need for secured loans.

It is in nobody's interest to lend to consumers who cannot or will not re-pay loans, which is why the subject of affordability is taken so seriously by secured lenders.

I have some comments to make about this little piece later and prove that they massaged our incomings and outgoings to make it appear we could afford to pay it back......we were 70 at the time we applied for a £30,000 loan which we were pursuaded/convinced to increase it to £43,000.
Thats another reason why they will not supply our underwriting sheet freely.........they will be forced to now.

Sparkie

[Dougal16T]

Re: Swift Advances Plc?

This is what John Webster sent to The Mortgage Strategy

From John Webster

While reading the November 12 issue of Mortgage Strategy I was disappointed to come across Guy Anker's article entitled 'Secured loans spell trouble for clients', in which he questions the need for secured loans.

It is in nobody's interest to lend to consumers who cannot or will not re-pay loans, which is why the subject of affordability is taken so seriously by secured lenders.

I have some comments to make about this little piece later and prove that they massaged our incomings and outgoings to make it appear we could afford to pay it back......we were 70 at the time we applied for a £30,000 loan which we were pursuaded/convinced to increase it to £43,000.
Thats another reason why they will not supply our underwriting sheet freely.........they will be forced to now.

Sparkie

Hi Sparkie and all,

I have spoken to Guy Anker previously - a good guy. If you can get in touch wih him do so - he WILL help. He works for Martin Lewis's website.

Can't recommend him too highly!!

Best Wishes

Dougal

[Sparkie1723]

Re: Swift Advances Plc?

Hi Sparkie and all,

I have spoken to Guy Anker previously - a good guy. If you can get in touch wih him do so - he WILL help. He works for Martin Lewis's website.

Can't recommend him too highly!!

Best Wishes

Dougal

Thanks for that info Dougal ........I will be contacting him very soon.....I am buried deep in my evidence for my Application hearing for friday, am working all hrs on it..........got some extra info I will showing the Court on friday that I can't post at the minute ....but its heavy stuff that I believe will hurt Swift Advanes plc badly.

Sparkie

[Sparkie1723]

Re: Swift Advances Plc?

Swift Advances plc have had our full second witness statement for over a week now so I am not posting anything that will give them a head start but these are snippets out of it, it may assist others who are in conflict with them

Sparkie
14. Shown at this point as Exhibit 12, is a copy of a letter that accompanied the data supplied to another of the Respondents customers, in response to his SDAR, as to why underwriting sheets are not supplied, the Applicants draw the Courts attention to the use of the words/phrase “ sensitive commercial information” and ask the question who has decided what is “sensitive commercial information” and what is not? Merely because the Respondent says so is not in the Applicants view acceptable.


15. Exhibit 13 is a copy of a recent letter sent to another of the Respondents customers, it is seen that in this letter the Respondent, is admitting that commission is paid, but puts forward another explanation/excuse that because that customers loan is unregulated the underwriting sheet is not required to be supplied under a SDAR, this is not correct the ICO has assessed that all information that is not deemed “sensitive commercial information” must be disclosed. There is also reference to charges, which are stated to reflect the “approximate cost” it is statements such as these, why the applicants have requested, a full breakdown of how these charges are arrived and how they are costed, the Court agreed that this should be supplied, the Respondents still have not supplied a satisfactory breakdown explanation.


16. The Applicants ask the Court to order the Respondent to supply the Court, and the Court
Only, with a full unaltered true copy of the underwriting sheet, in order for the Court to rule on what is “sensitive commercial information” and what is not. Once this has been decided, then there is no reason for the Respondent not to provide the Applicants with a copy of their underwriting sheet, with the “sensitive commercial information” removed, but to show the “hidden commission paid” that is blocked out on certain underwriting sheets they believe this would not be unreasonable request for this to be done. It maybe, that these documents are shown to be “tampered with” before being supplied.

[Sparkie1723]

Re: Swift Advances Plc?

Not sure if I have posted this ........but I'll post it again.......this is about the underwriting sheet and Swifts failure to supply it and say they do not have to.
I think they are wrong.
Sparkie


a) Failed to disclose information
Failure to reveal information is tantamount to fraud by conduct or omission. In some cases there will be an overlap with Section 2 offences.
There is no requirement that the failure to disclose must relate to "material" or "relevant" information, nor is there any de minimis provision. If a Defendant disclosed 90% of what he was under a legal duty to disclose but failed to disclose the (possibly unimportant) remaining 10%, the actus reus of the offence could be complete. Under such circumstances the Defendant would have to rely on the absence of dishonesty. Such cases can be prosecuted under the Act if the public interest requires it, though such cases will be unusual.

It is no defence that the Defendant was ignorant of the existence of the duty, neither is it a defence in itself to claim inadvertence or incompetence. In that respect, the offence is one of strict liability. The defence must rely on an absence of dishonesty and the burden, of course, lies with the prosecutor.

Prosecutors must be acutely aware of the public interest in such cases, bear in mind the relative standing of the parties and pay particular regard to any explanation for the failure given by the Defendant.
b) (When) he was under a legal requirement to do so
A legal duty to disclose information can arise as a result of a contract between two parties or because of the existence of a particular type of professional relationship between them; for example, a solicitor/client relationship. In its report on fraud the Law Commission (Note: Fraud. Law Commission Report No 276 Cm 5560 (2002)) made the following comments about the circumstances in which a legal duty might arise:
7.28 ... Such a duty may derive from statute (such as the provisions governing company prospectuses), from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as that of agent and principal).
7.29 For this purpose there is a legal duty to disclose information not only if the defendant's failure to disclose it gives the victim a cause of action for damages, but also if the law gives the victim a right to set aside any change in his or her legal position to which he or she may consent as a result of the non- disclosure. For example, a person in a fiduciary position has a duty to disclose material information when entering into a contract with his or her beneficiary, in the sense that a failure to make such disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it.

[Sparkie1723]

Re: Swift Advances Plc?

Swift Group Legal Services

This “entity” has been conducting ancillary consumer credit business since early 2008.

It was used as a trading name of Swift Advances plc.

This is bourn out by the fact that on 6th October 2011 a variation was obtained for this entity to become a trading name of Swift Advances plc.

In the view of a reasonable thinking person one would come to the conclusion that Swift Advances plc had been and were aware of the fact that to use a trading name that is not included on a CCA licence was/is a criminal offence.

If this was not so, no variation order would have been needed and it would not have been necessary to apply for said variation.

The variation order is not retrospective.

It has been confirmed in writing by the SRA that Swift Group Legal Services would not be covered by the group CCA licence that is held by the Law Society that covers all solicitors who are sole practicioners, LLP’s and law firms.

Swift Group Legal Services is not a law firm, it is registered with the Law Society as an Organisation.

The solicitors in the employ of Swift Group Legal Services hold practicing solicitors of their own and, are/would be covered by the Law Societies group licence, BUT…….. they are only covered by the Law Societies group licence if they were to act on their own as a sole practioner.

When Swift Group Legal Services said that they acted for Swift Advances plc prior to 6th October 2010, it is my opinion that they acted unlawfully, this is going to be ruled on in the High Court soon, and the arguments above will be tested, I am fairly confident that it will be deemed favourable.

It is agreed that as from 6th October 2010 they rectified the legality of their operations but before that…………I leave it for all to consider what this means………..if they were not unlawful before that date ….why rectify the situation.

If you are fully covered to drive any car on someone else’s insurance policy, why would you pay to get car insurance of your own?

Sparkie

Just more of my ramblings and personal views