Blemain Finance Possession Claim

[jumper999]

Re: Blemain Finance Possession Claim

Good idea Tuttisi....I may just do that when I get a spare moment.

[jumper999]

Re: Blemain Finance Possession Claim

Contributory negligence: the 1990s claims experience

Professional indemnity (PI) insurers still harbour painful memories from the 1990s, when lender litigation was rife and their policyholders (mainly solicitors and valuers) were badly mauled. This time around, PI insurers will be determined not to pick up the tab as the consequences of the recent easy money era start to unravel.

By the end of the 1990s claims period, professionals were starting to cross-claim, more and more, for contributory negligence on the part of the lender. In the event, lenders emerged from those contests relatively unscathed. The courts did find some degree of imprudent lending but typically, this would be reflected in a discount only of 10 or 20 per cent on the lender’s total damages recovery.
Some basic principles emerged from the 1990s cases about assessing lending practice for negligence.

The first of these involved the interplay between borrower suitability and the adequacy of security given. In the 1990s cases, many lenders were criticised for taking information supplied by applicants at face value and for not ‘digging deeper’. The courts tended to support those lenders but only where a comfortable margin of equity was available.

Even with the most generous provision of security, however, lenders would not be entitled to ignore something striking about an applicant’s status or circumstances, as Wright J made clear in HIT Finance Ltd v Lewis & Tucker Ltd (1993):
”I am not suggesting that the prudent lender, merely because he had the comfort of more than adequate security, is entitled to shut his eyes to any obviously unsatisfactory characteristics of the proposed borrower. Plainly a lender would not be acting prudently if he made a loan in circumstances where he had substantial reason for suspecting the honesty of the borrower.”
A number of other contributory negligence allegations in the 1990s centred on lenders’ departures from their own published underwriting guidelines.
This sort of problem drew a mixed response from the courts. PI insurers argued that a lender’s failure to follow its own internal controls (having taken the trouble to formulate them in the first place) was prima facie evidence of imprudence.

The courts tackled this sort of issue on a case-by-case basis. In Housing Loan Corp v William H Brown (1999), for example, the lender’s criteria required that – where two valuations were supplied at the application stage – underwriters should always adopt the lower figure for the lending decision. The Court of Appeal approved the following approach:
I fully accept that it is not necessarily negligent for an autonomous body to step outside self-imposed controls. What matters is whether or not the controls were in place for a sensible purpose. I judge it to be a sensible precaution to act upon the lower of two valuations. It is a precaution which acknowledges the difficulty in making an accurate valuation of certain properties and it is intended to safeguard the interests of the lender. In my judgment, it was foolish in the extreme to ignore [the lower] valuation.”

Interestingly, the Financial Services Authority’s (FSA) recent review of behaviour in the sub-prime sector revealed departures from lending policies to be a major failing. This issue is likely to be rekindled as a key indicator of imprudent lending in contributory negligence claims to follow.

Sub-prime lending and negligence

Towards the end of the 1980s, centralised lenders had arrived on the scene for the first time. Lawyers for PI insurers argued that non-status lending was, by its very nature, inherently imprudent. Some judges agreed with that analysis. Here is what Sir John Vinelott had to say in the 1996 case of Birmingham Midshires v Parry:

A new type of lender, the centralised lender with no high street presence and with ready access to finance, was attracted to the field. To establish a position in the market the centralised lender was willing to lend money on a non-status mortgage – that is to rely to an excessive extent on the value of the security and, as regards the personal covenant, to rely on self-certification. That was, in my judgment, a risky course.”
Sound familiar? One might readily take a similar view about the growth, in more recent times, of the sub-prime sector and adverse credit lending generally.

In practice, however, the courts will be a little more permissive. Lender behaviour is likely to be judged relatively. That is to say, a lender’s practice and procedures will be assessed by reference to the standards of those operating in the same niche sector. It would be inappropriate, in most cases, to judge sub-prime lending against mainstream underwriting principles.
The test of negligence, therefore, will be: “did this sub-prime lender behave in a way that no other prudent lender, in the same market, would have done?”

[jumper999]

Re: Blemain Finance Possession Claim

It seems that if you have an arguable case that the lender has contributed in someway to the loss of their own loan and funding that the courts will look in to this.....and we all know that sub prime lenders were given out loans like confetti....and rightly so they should at least be made to bear some losses for doing that.....

In my case Blemain loaned to us without asking for a single piece of documentary evidence to support my OH's self certified earnings......and I mean not a single piece of evidence. OH stated he was earning £30k a year......now if the court were to ask Blemain what measures did they take to prove this....I can gurantee 100000% that will not be able to justify this. All they done was an Equifax report on the both of us.

We took this loan out through Ocean Finance....and when I sent OF an SAR...their call data log records clearly stated:

"POOR PAYMENT PROFILE"
"MORTGAGE IN ARRANGEMENT"
"DEFAULTS"

Will allow three months payment holiday to get them on their feet.........so..............Blemain cannot claim that they were not aware of our history and chose to loan knowing the full facts that we had a poor payment profile...........Blemain were also aware that I was not working....yet still loaned. OK I admit there was a long time where payments were not made....but I was in continuous correspondence with Blemain an complaining over many matters which I was not happy with.....so I will take what ever punishment the court gives me for this.....although I have been making regular contractual payments since Jan 12....plus £30 on top towards the arrears built up....but I am sure that the court will not look kindly on how Blemain loaned to us and they took a risk...so should be punished for their part in this mess I am in.

FSA principles



The importance of the FSA’s role, as regulator in all this, cannot be stressed enough. For sub-prime lenders, the news is particularly bad. Almost certainly, the FSA impact means that the risk of contributory negligence claims (from borrowers, professionals and other quarters) is markedly higher now than it was in the 1990s.
Faced (for now) with a dearth of authority on what amounts to imprudent sub-prime behaviour in law, defendants are likely to adopt the FSA’s principles and outcomes-based tests to serve as the relevant standard of non-negligent lending practice.


There was no real regulatory dimension to speak of in the 1990s cases. The FSA imposes a much stricter and more extensive regime than the law of negligence ever did.
Professionals (and other would-be recovery targets) are now poised to use the FSA’s recent investigation into the sub-prime sector as a springboard for counter-attacking claimants from that camp. There may well be evidence in this vein that customers have not been treated fairly. It is only a short stretch from there to argue that lenders should bear more personal responsibility for their own losses, when loans default.


The FSA enquiry did not reveal widespread mis-selling in the sub-prime market; nevertheless, it is easy to predict that the main focus for any counter-claims will be in the realms of application plausibility and affordability issues.


Building on the 1990s claims experience, this is essentially an issue over the depth of enquiries required into a borrower’s creditworthiness on any given application.
To what extent are lenders expected to protect (sometimes desperate) borrowers from themselves? Turning a blind eye to obvious discrepancies will readily be regarded as negligent behaviour. But where a borrower has, perhaps, ‘over-egged the pudding’ in his application, there must be limits on a lender’s duty to act as private detective and look behind the paper presentation.
Whether through the Ombudsman Service or the courts, we need to see some decided cases on these points before any reliable principles can bed down.
In the 1990s, there was some doubt that the issue of internal underwriting criteria could ever have a bearing in lending negligence assessments. Now, however, fuelled by the FSA’s recent concerns, defendants are likely to seize on the point once again.
Even if not negligent in itself, a lending guideline breach is likely to put defendants on the suspicion trail, to trawl for other more serious failings lurking underneath the surface.


Looking ahead


There has not yet been a surge in UK sub-prime borrower default, but those days may soon be upon us. If and when it happens, lenders will need to consider their options for clawing back security shortfalls.


The traditional routes of recovery – principally, against professional advisers – may be more hazardous this time around. Prospective recovery targets are ready to go on the counter-attack. The FSA regime, sweeping disclosure rules and the uncertain legal position could all work to the counter-claimant’s advantage.
Lenders really must be sure of a ‘whiter than white’ showing if they are to launch recovery actions with confidence.

[jumper999]

Re: Blemain Finance Possession Claim

Below I have attached a copy from Ocean Finance call data log...first page....and despite what it states Blemain loaned...so therefore took a risk.

I also believe that Blemain paid Ocean much more commission that what they advised me .....£339.....but have refused to supply me with the underwriting sheet....and I have given up asking them.....but the log details this info....

[jumper999]

Re: Blemain Finance Possession Claim

I questioned Ocean Finance when they wrote in their log "will risk with Blemain" and you will see what they replied.

[jumper999]

Re: Blemain Finance Possession Claim

I have approx 3 letters from Ocean Finance confirming that they loaned solely on my OH's self employed earnings.....but they have failed to say that they loaned without asking for a single piece of evidence to support his earnings....not even the name of an accountant....nothing at all.

[jumper999]

Re: Blemain Finance Possession Claim

If you read Ocean's letter dated 4 March 2011...they state that they provided Blemain with ALL the info provided to underwrite the loan..

THEN

In their letter dated 5 August 2011 the state that they provided Blemain with most of the info they required to underwrite the loan.....

Either they did or did supply everything....and now they refuse to discuss matters with me further....so maybe a court will be able to advise.

[figaro123]

Re: Blemain Finance Possession Claim

I am presently in litigation with Blemain and I have a very strong case for an unfair relationship. I am acting as LIP, but would love the name of your solicitor if this is possible.

[TUTTSI]

Re: Blemain Finance Possession Claim

Jumper the sub prime lenders will get there day and that day is coming soon.....I will be going after our lender, who just loves to repossess properties.... and only took on cases where they felt that the borrowers would fail to make all the payments on time and then hey presto a repo.

I have documents to prove what I am saying written on their headed note paper and passed to me some time ago which I have kept up my sleeve. Now that I am on the mend, my NY resolution is to bring down our lender with all the info I have on them - they are acting within the guide lines of the FSA and I have evidences to back up. I have moved my thread to VIP private area as I do not want to risk them knowing what I am about to do. I am sure that these companies do troll the sites and I want the element of surprise coming to them...... coming very soon.

[jumper999]

Re: Blemain Finance Possession Claim

Good for you Tuttsi and the very best of luck on that...as for my solicitor figaro....I am not being represented by one. I have paid the solicitor (same solicitors firm I had dealing with my divorce case) who I just wanted to try and get a settlement with Blemain prior to the hearing..and I would not recommend him to anyone...and all he has done is drag matters on forever.

I am waiting for a response from him which I should have received Friday gone....if I am not happy with the response then I am going to represent myself....and looking quite forward to it after being messed about for so long and by so many.

[MIKE770]

Re: Blemain Finance Possession Claim

Old Victorian system repossessions, better if need arise for council pick up the remaining reduced amount of mortgage and add to their stock and set rent, cheaper than putting into accommodation and the cost there for family to be supported, and all they extras, mind you that way a lot of debt buyers etc be out of work = gooooddddddddddddddddddddddd

[jumper999]

Re: Blemain Finance Possession Claim

Well after a long think I have sent the solicitor trying to sort matters out with Blemain this email:

Dear Solicitor,

Further to my email to you on the 10 January 2013 I assume that Cobbetts have not been in touch with you with a response to my terms of consent and continual efforts of trying to settle this matter.

I believe that matters have gone much further than they should have and therefore I am writing to say I believe that it would be better that I deal with Cobbetts myself and not through you. Reason being is that they are taking far too long to respond to my legitimate requests by pro longing matters.

Cobbetts are well aware that the hearing is not far away and judging by their past correspondence I do not believe they will or even want to settle this matter without going to trial.

Therefore I suggest that I contact Cobbetts directly and request a final response from them, which if not satisfactory then request their agreement to vary directions so that both parties can proceed to trial with new dates and instructions from the court. If Cobbetts are not in agreement that we mutually vary directions then I will have to submit an application to court seeking their permission to vary directions and I will also attach a witness statement to evidence how much I have tried to settle this matter with Blemain with no success to date.

Please let me know by the end of the day what response you have if any from Cobbetts. If you do not receive a response from them by the end of the day then I will be contacting Cobbetts directly and will be dealing with this matter myself. That way if I do not get a clear response from them to my requests I can bring this to the courts attention.

Thank you for the help you have given but I think this matter will now be better dealt with if I handle it by myself as it is obvious Blemain are not willing to settle or agree to anything I have done or have to say.

If I do not hear from you by the end of today then I will be in contact with Cobbetts tomorrow and communicate with them directly.

If you do however receive a response by the end of the day please forward this to me.

I look forward to hearing from you.

Kind Regards


xxxxxxxx

[jumper999]

Re: Blemain Finance Possession Claim

Contributory negligence

As much of the evidence had been
heard, the Court felt competent
to comment in relation to the
contributory negligence arguments.

The Court declared that it would
not be imprudent for the claimant
to agree to a mortgage with a loan
to value ratio of 90 per cent per se,
rather that it would depend on all
the circumstances.



In particular,
where a high loan to value is agreed
the claimants were under a duty
to investigate and verify matters of
central importance to the mortgage,
such as Mr S’s financial position.

At trial it was found that Mr S
provided information as to his income
and liabilities which was misleading.
The claimants sought to argue that
the honesty of the borrower was
not critical if he had the ability to
keep up payments. However, the
Court considered that when these
discrepancies were taken into account
with other factors, it would lead the
claimants to the conclusion that Mr S
was dishonest and that it would not
have lent to him.

On the facts, the Court found that
the claimant had contributed to its
own loss. Had the valuation been
negligent, a reduction of 60 per cent to
the claimants’ entire loss would have
been made.

Practical implications
This case should provide some
comfort to valuers. Although it does
not excuse a negligent valuation,
it does suggest that a court will
more readily interpret the valuation
exercise by having regard to the level
of fees paid.

Further, where valuations are found
to be outside the acceptable range,
valuers will be pleased to hear that
courts are still willing to hold lenders
to account for their imprudent or
careless lending.

In light of the changing conditions
in the property market we look
forward to seeing if this case is
applied more widely and if the law
is developed further as more claims
reach the courts.

[jumper999]

Re: Blemain Finance Possession Claim

some good reading.....

[jumper999]

Re: Blemain Finance Possession Claim

Arrears, warrants and abuse of process

Posted on 30/09/2012 by NL



A report of a County Court mortgage possession case has reached us, in which the secured lender’s behaviour resulted in a finding of abuse of process. The question was when (an if) an arrears payment had been received.


Blemain Finance Ltd v Andrea Jayne Ridley Darlington County Court 21 June 2012


Ms Ridley was the homeowner, with a mortgage of £44,000 (£39,000 outstanding) from 1999. She took out a further secured loan for £20,000 with Blemain Finance in 2006. She had fallen into arrears on payments and Blemain had obtained a possession order in 2006, then a warrant, which Blemain didn’t enforce on payment of the arrears. When arrears of some £1500 re-occurred, Blemain applied for a warrant of possession. The warrant was due to be executed on 19 June 2012 at 10.30 am.


On receiving the notice, on 15 June, then a telephone call from an agent of Blemain, Ms R’s evidence was that she went on to Blemain’s website on Sunday 17 June 2012 and paid off the outstanding arrears via a debit card, which had sufficient credit on it after a payment from her father. It was her uncontested evidence that the agent had told her on the phone, on 16 June, that once she’d paid on the website the account would ‘be up to date and fine’. The website was listed as a way to pay on Blemain’s letter giving the date of eviction. However, Blemain’s letter made no mention of Ms R’s right to apply to the Court for a stay of eviction at all.


The eviction went ahead on 19 June. Ms R called Blemain with the court bailiff present but was told there was ‘nothing they could do’.
Ms R applied for re-entry and stay of warrant on the same day. The application was heard on 21 June. It turned out that Blemain had returned Ms R’s payment on 20 June.
Blemain opposed the application on the basis that:

no payment had been received from Miss Ridley. [Blemain] acknowledged that Miss Ridley had offered to make an immediate payment of the full arrears but stated that [Belmain's advocate] was not authorised to accept any payment. Blemain Finance denied an abuse of process and stated that arrears were outstanding at the time the eviction took place. Furthermore, Blemain Finance argued that as they had gained possession of the property, the full balance on the mortgage had become due and there were no grounds for the Court to set aside possession.

The District Judge pointed out that this could be done by an order suspending the warrant and for payment fo the arrears.
However, on the evidence, it was clear that the payment by Ms R had been with Blemain before the execution of the warrant and remained with them until 20 June and that Ms R had been told if she made the payment before execution of the warrant, things would be fine.

Despite that, the Claimant was authorised to continue. This led to an abuse of process in this matter. Therefore the warrant is no longer executed, the Defendant is allowed back into he property and the matter will be re-listed to treat as an application to suspend the warrant.

It appears Blemain sought permission to appeal but that was adjourned until the further hearing.


At a further hearing on 25 June, the warrant was suspended and Blemain ordered to pay the costs of Ms R’s application and both hearings. Blemain did not seek permission to appeal.
Naughty Blemain Finance. Very naughty indeed.


Thanks to Diane Hall at Clark Willis for the details of the case.