Swift Advances problem

[Guest]

Re: Swift Advances problem

HI John

Can you tell me the current status of any proceedings, has a default notice been issued or a court demand?

Yes we need to get copies of the statements, i presume some must have been available at some point in order for the FSA to arrive at their determination.

A DSAR or data subject access request , is a demand sent by you to the creditor for a copy of all written information they hold about your account, th3ey have to comply within 40 days by law.

Once we have the statements we can find out how they have arrived at the sums they have, there is a few templates on here, perhaps someone will link one , if not i will dig one up for you.

There are a number of issues which can be followed up here namely.

Correct execution of the agreement, if it was not and does not correctly contain certain information it is possible that they would be unable to enforce any security through the court.

Incorrectly securing the charge , if this is the case the security cannot be realized.

Incorrectly applying the interest and charges to the account, all default charges must be detailed in the agreement if not they are unenforceable, also interest must be charged differently on default sums.

Unfairness; the consumer credit act has provisions which say the creditor must treat debtors fairly, anything done or not done either before or after the agreement was made can be assessed for fairness, and if it is decided that the action was unfair sanctions can imposed by the court such as unenforceability of the agreement or adjustments to liabilities owed.


First step is to gather information, so we need to get the DSAR off, we also need to know the time constraints, we need to know what has been said about the current actions being taken by Swift.

D

[john 1963]

Re: Swift Advances problem

no default notice been issued or a court demand sent, I have untill October 2nd to reply to the FSA stating if I accept their findings or not. They have not been very fast in looking into this as it was first reported to them in April, what has crossed my mind will Swift still be adding more charges on top of all this since April? I have had no letter off them saying they would be. I asked the wife this morning if she remembers the legal charge document and she doesn't. We cannot remember signing any document infront of a witness which I believe you have to do with this unless the broker we used acted as a witness. Further to Sparkies comments I can 100% confirm the mortgage is solely in my wife's name and has been for 9 years, the loan agreement secured on the property was taken out in both of our names and signed by us both. A link to the DSAR template would be very helpful and I would be grateful if sparkie would still give his imput.

[Guest]

Re: Swift Advances problem

Hi DSAR Request

• Data Protection Act 1998
  
  Subject access request
  
  Dear Sir/Madam
  
  ACCOUNT NUMBER: xxxxxxxxx (or multiple numbers if more than one account)
  
  Please supply me with all data that you hold on me. This includes in particular, but is not limited to, the following:-
  
  1. The original signed, executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.
  2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor
  3. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR.
  4. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.
  5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).
  6. Details of any collection charges added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial Breakdown of how the charge was calculated, and what the charge covers.
  7. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.
  8. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998
  9. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.
  10. Copies of statements for the entire duration of the credit agreement.
  
  I enclose the statutory maximum fee of £10. You have 40 days in which to comply.
  If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.
  
  Yours faithfully,
  
  
  
  

[Guest]

Re: Swift Advances problem

Is there a section on the agreement which mentions the legal charge and has a signature box?

It must be remembered that before they can place a charge on your property they have to get a CCJ. Early days yet.

D

[Sparkie1723]

Re: Swift Advances problem

Is there a section on the agreement which mentions the legal charge and has a signature box?

It must be remembered that before they can place a charge on your property they have to get a CCJ. Early days yet.

D

A CCJ is not required to place a charge on a property ....anyone can place a charge on a property......the court order is required to enforce it.
The whole point I am making is that your agreement is totally void/unenforecable as would be any legal charge you would have/may have signed as the property is in your wifes name only.

Get PROPER legal advice and you will find you are entitled to ALL your money back you have paid plus interest at contract rate.
Sparkie

This is only my opinion given from my own experience and I strongly advise that you get proper advice at this early stage......the sooner the better.

[john 1963]

Re: Swift Advances problem

Sparkie when you say get all our money back surely you don't include in that the 60 payments that we were obliged to pay in the first place?

[john 1963]

Re: Swift Advances problem

"The whole point I am making is that your agreement is totally void/unenforecable as would be any legal charge you would have/may have signed as the property is in your wifes name only."

well that statement has made me really confident. I've phoned the FSA and as usual the woman dealing with my case is not at work untill Monday, I will ring Monday and get her to return all the papers off Swift we have sent to her. I will also make an appointment next week with some local solicitors unless anyone can suggest a good firm, i don't mind travelling.

[Guest]

Re: Swift Advances problem

Sorry Sparkle.

We are talking about enforcing the charge of course. This cannot be done without a CCJ being awarded. You seem to be very hostile Sparkie, having a bad day?

As for getting all your money back, it is possible under the act, but it depends on the enforceability of the agreement. This has to be ascertained, we do not know yet if the agreement was properly executed or not.

Looking at the figures provided it seems that the prescribed terms are correctly stated, i would need to examine the actual agreement to see if other requirements of section 61 are adhered to.

D

[Sparkie1723]

Re: Swift Advances problem

Sorry Sparkle.

We are talking about enforcing the charge of course. This cannot be done without a CCJ being awarded. You seem to be very hostile Sparkie, having a bad day?

As for getting all your money back, it is possible under the act, but it depends on the enforceability of the agreement. This has to be ascertained, we do not know yet if the agreement was properly executed or not.

Looking at the figures provided it seems that the prescribed terms are correctly stated, i would need to examine the actual agreement to see if other requirements of section 61 are adhered to.

D

Not at all Dave,

What I'm trying to steer John to is he fact that he cannot be joined in/on any loan and /or legal charge on his wifes property ....Swifts agreements terms and conditions and the terms and conditions of their legal charges are irrevocably linked and cannot be separated.

He has no interest in the value ...equity or any say of said property.....the agreement is null and void ......that is why I am trying to steer him to proper legal advice....it will save him a lot of time trouble and get both him and his good wife their just retribution/restitution ..........Swift have been grossly negligent in agreeing to the joint loan and legal charge......when it was not lawfully possible to do so. The hard ...long and drawn out way is trying to do it the hard way.

Once Swift have been made to realise by LEGAL professionals of these facts they will do business with John...that's why I say to him get legal advice on this it is serious. It is not just the CCA Act it is the Law of Property Act 1925 involved in this case

Sparkie

[Guest]

Re: Swift Advances problem

Hmm
I think what you are referring to is section 106 of the CCA regarding ineffective securities. This is a possibility, but as i said can be looked into when we examine the agreement.

A solicitor could do this of course, it should be remembered that this clause also comes int play if the agreement is improperly executed under section 61( as per Wilson etc) which is something else that needs to be examined.

In addition this is a pre 2007 agreement so the requirement for accuracy of the prescribed terms is a major factor, as i said earlier there are a number of avenues open for investigation.

D

[Sparkie1723]

Re: Swift Advances problem

JUst as added information you will not find the information required by the companies act as stated below on Swifts agreements or legal charges check out the samples I posted.....this also of course would require proper legal confirmation.

Sections 82 to 84 of the Companies Act 2006 (in conjunction with
Statutory Instrument 2008/495) states that every company shall disclose
its registered name in characters that can be read with a naked eye
on:-

(a) its business letters, notices and other official publications;
(b) its bills of exchange, promissory notes, endorsements and order
forms;
(c) cheques purporting to be signed by or on behalf of the company;
(d) orders for money, goods or services purporting to be signed by or
on behalf of the company;
(e) its bills of parcels, invoices and other demands for payment,
receipts and letters of credit;
(f) its applications for licences to carry on a trade or activity; and

(g) all other forms of its business correspondence and documentation.
(i) every company shall disclose its registered name on its e-mails and
websites”.
In addition, all companies must disclose:-
(a) the part of the United Kingdom in which the company is registered;
(b) the company’s registered number;
(c) the address of the company’s registered office;
On all:-
(a) its business letters;
(b) its order forms; and
(c) its e-mails and websites.

The highlighted red IMO would apply even more importantly to legal contracts and such.......all other major lenders and Banks as far I have have checked (52 different lenders) have all this information on their CCA loan agreements and contracts


I won't overload a newbie with such complicated info ..........just concentrate on the voidability of your agreement John .......go to a good solicitor.........you should get the advice you need free..........first half an hr of his/her time is normally without any fee.
Sparkie

[Guest]

Re: Swift Advances problem

Very interesting Sparky,what effect would any of this have on the requirements of the cca regarding the form and content of the security document?

It is more important to see what is required under the SI relating to the act , I would have thought.

D

[Sparkie1723]

Re: Swift Advances problem

Very interesting Sparky,what effect would any of this have on the requirements of the cca regarding the form and content of the security document?

It is more important to see what is required under the SI relating to the act , I would have thought.

D

Hiya D
Stat instrument is only from 1st October 2008......Johns loan predates the Stat instrument which is not retrospective...it mainly relates to shareholdings etc etc.....but restates the section of the companies act I posted.

Again John I cannot strees the importance of you getting proper legal advice.......re the voiding of your agreement.........not just unenforceable ....VOID
Sparkie

[Guest]

Re: Swift Advances problem

I find it hard to believe that there is no statutory instrument under section 105-6 of the CCA regarding the contents and form of securities.
I will have a look.
D

[john 1963]

Re: Swift Advances problem

yes I will see a solicitor next week, I am feeling more confident about this now thanks to both of your inputs. Is there any legislation I should be directing a solicitor to look at regarding my name not being on the mortgage, or should he know what to do? Thinking back to when we took out the loan, I cannot imagine why I was put on the loan agreement because they knew the property was in my wife's name as they had to inform her lender. I came off the mortgage about 10 years ago because I was going self-employed at the time, and was frightened if it did not work out, we could lose the property. Will keep you informed on how this develops and thanks for the input.