PPI Reclaiming Discussion part 4

marshallka

Incipience wrote: »

Some Bed Time Reading for you, if you need it explained then let me know :-P

A fiduciary must not profit from the fiduciary position. This includes any benefits or profits which, although unrelated to the fiduciary position, came about because of an opportunity that the fiduciary position afforded. It is unnecessary that the principal would have been unable to make the profit; if the fiduciary makes a profit, by virtue of his role as fiduciary for the principal, then the fiduciary must report the profit to the principal. If the principal consents then the fiduciary may keep the benefit. If this requirement is not met then the property is deemed by the court to be held by the fiduciary on constructive trust for the principal.

Secret commissions, or bribes, also come under the no profit rule. The bribe shall be held in constructive trust for the principal. The person who made the bribe cannot recover it, since he has committed a crime. Similarly, the fiduciary, who received the bribe, has committed a crime. Fiduciary duties are an aspect of equity and, in accordance with the equitable principles, or maxims, equity serves those with clean hands. Therefore, the bribe is held on constructive trust for the principal, the only innocent party.

Bribes were initially considered not to be held on constructive trust, but were considered to be held as a debt by the fiduciary to the principal. This approach has been overruled; the bribe is now classified as a constructive trust. The change is due to pragmatic reasons, especially in regard to a bankrupt fiduciary. If a fiduciary takes a bribe and that bribe is considered a debt then if the fiduciary goes bankrupt the debt will be left in his pool of assets to be paid to creditors and the principal may miss out on recovery because other creditors were more secured. If the bribe is treated as held on a constructive trust then it will remain in the possession of the fiduciary, despite bankruptcy, until such time as the principal recovers it.

Hurstanger Ltd v Wilson and Another

The facts

Mr Wilson and his partner, Ms Burton, took out a loan with
Hurstanger Ltd, a non-status lender, via a mortgage broker. The
broker received a fee from Mr Wilson and commission from
Hurstanger. Mr Wilson knew that commission might be payable but
did not know that it was paid or the amount of the commission.
For reasons which relate to other aspects of the transaction, Mr
Wilson sued Hurstanger, rather than the broker, alleging, amongst
other things, that Hurstanger was an accessory to the adviser's
breach of fiduciary duty in failing to disclose the commission payable.

The law

This case was not covered by the FSA's Mortgage Conduct of
Business Rules as the loan was to be secured as a second charge
against the property, so it did not count as a "regulated mortgage
contract" and was not a specified investment for the purposes of the
Financial Services & Markets Act 2000.
Under the common law, an agent who receives a secret commission
without the informed consent of his principal is in breach of fiduciary
duty. A third party paying the commission and knowing of the agency
would be an accessory to the breach. Remedies (which are all
equitable) include rescission and compensation. Here it was alleged
that Hurstanger was an accessory to the adviser's breach.
In deciding the point, the Court of Appeal gave careful consideration
to what amounted to sufficient disclosure for the purposes of
informed consent and concluded that as the case related to a nonstatus
loan made to potentially unsophisticated and vulnerable
investors, it was necessary for the lender to ensure that the
borrowers were aware of the amount of commission payable as well
as the fact that there would be a commission payment. Hurstanger
was therefore required to pay an amount equivalent to the
commission to Mr Wilson and Ms Burton; however, in the particular
circumstances it was not appropriate to rescind the contract.

Implications

Because this is a decision based on the common law, it will apply to
both regulated and unregulated sales involving third party
brokers/advisers. As there are clear regulatory requirements to
disclose commission, it is to be hoped that similar situations will not
arise where the sale is covered by COB, ICOB or MCOB as
commission will have been disclosed. However, not all sales of
financial products are regulated by the FSA: both second mortgages,
as in the Hurstanger case, and buy-to-let mortgages fall outside its

jurisdiction.

Incipience

marshallka wrote: »

Also surely EVERONE that had a contact pre a certain date has a claim too as regards the commission etc. Is that what you are saving here.

Marshallka, You have got it in to your head that based on what you were told by the FOS, is law, and you are trying to justify all the time you have spent trying to sort this out yourself.

I dont think I would be able to tell you otherwise, the fact on law are clear on this. You just keep thinking "SOLD, Who SOLD the Policy"; without me regurgitating all the previous threads, the law is clear in matters of liability. Take the Wilson case, where they complainant went after the broker and won. Why did the courts not dismiss the case saying the broker is responsible?

Why, well because of law, you have read it and you have quoted it several times. You believe it yet dont believe it, because the FOS said it wasnt true, the FOS are not lawyers, they are mere Ombudsmen - "A man who investigates complaints and mediates fair settlements, especially between aggrieved parties such as consumers or students and an institution or organization."

If you goto the Ombusdmen, and say the lender was responsible, the Ombudsmen will look at the information, they will then request information from the lender, the lender will tell the ombudsman that the broker sold the policy and they have nothing to do with it.

Deadlock, you will either be denied the complaint at that point or the matter will be referred for adjudication. The adjudicator with then look at the information submitted by both parties. If your complaints is just about the SALE, and give no basis as to why your believe the Lender is in part responsible for the sale then how could you expect the Ombudsman to make his own assertions? he wont because he has thousands of other complaints to deal with, and were he to go above and beyond for you then he will have to do it for the rest.

Now.. if you argument, contains evidence that on a balance of prabability you would not of been able to know the responsibility of the broker then this has to be taken into consideration.

• You were not aware of any agreement between the Broker & Lender
• The lenders contracts do not mention the broker
• The lenders policy documentation infers they are the intermediary in the sale.
• The lenders policy documentation infers to the protection of buying a policy from a member of GISC (pre 2005)
• Your Credit agreement is that of the Lenders branded agreement
• The Insurance is that of the Lenders Branded Policy Documentation.
• Lender is continuing to make a profit from the policy by way of interest levied at the same rate as the loan
• The amount of PPI Premium paid in the first instance, was not the amount the Lender paid the insurer for the policy. (SAR the Insurer to get the real amount)
• The Underwriting sheet had no reference to commission paid for the sale of insurance, it only had commission details for the loan.

The list above is exhaustive, but it does prove that you had no way of knowing that the policy was from the broker (note from and not sold).

Of course the Broker has responsibility, but so does the lender, and it could even be argued, that the insurer does also.

I really dont know what more I can say, this is simply the way it is. Now, I get that you want to fight this all on your own, and now you are questioning where you went wrong, and rightly so.

However, when it comes to dealing with Lenders who are for all intents an purposes insolvent, then you really have to bring in the professionals.

Failure, is only a failure if you give up. There is no shame in asking for help, and to be honest I would wager that were you to move on with legal action that you would not see the inside of a court, and that a settlement will be forthcoming.

At the End of the day the FOS, are one route, but not the last route. Personally when it comes to Firstplus, unless you have a straightforward Vanilla case, and that all parties are still trading, then its Pointless waiting for them to make a decision, as I say Send of Complaint to FOS wait a few months, and if it has not rattled the lender to pay then take legal action.

I stand by that statement. Do yourself a favour, and stop dwelling into how you have been wronged and do something about it.

You have tried every possible angle to your own detriment, and you have failed, it happens to us all. However some of us, realise that we are out of our depth and ask for specialist help.

Personally, I wipe my hands off firstplus, and I have left it to the lawyer.. oh, and yes the lawyers are going after FIRSTPLUS and not the broker.. makes you wonder.

Incipience

marshallka wrote: »

Don't know if this helps with addresses etc.
Application / Licence Details




Licence Number:0623441
Licence Status:Current

Current Applicant / Licensee:

Business NameCompany Registration NumberZenith Staybrite Limited6516827

Categories:

Credit brokerage

Right To Canvass Off Trade Premises:Yes


Trading Name(s) (Current):



Issued Date: 05-Dec-2008
Date Maintenance Payment Due: 04-Dec-2013


Legal Formation:

Body Corporate (incorporated inside UK)

Current Individuals that run the organisation:

NamePositionAmanda Jane Richards Philip Dunning

Nature of Business:

Other

Current Address(es):

Address TypeAddressPrincipal Place Of BusinessPhoenix Centre, Road One, Winsford Industrial Estate, WINSFORD, Cheshire, CW7 3PZ, United KingdomRegistered OfficePhoenix Centre, Road One, Winsford Industrial Estate, WINSFORD, Cheshire, CW7 3PZ, United Kingdom

Different Company that was incorporated last year.

Incipience

marshallka wrote: »

I once spoke to a manager at the FOS about this (RE Barclays trading as Firstplus complaint). I was told that in order to put my complaint forward to the firm "Barclays" then Firstplus should have been an appointed representative of theirs. (to which they are not).
.

This has nothing to do with Broker/Lender agreeements. FIRSTPLUS is a wholly owned subsidary of Barclays, but for all intents FIRSTPLUS is a seperate legal entity.

An appointed representative is allowed to carry out regulated activites on behalf of the lender.

Under s19 of The Financial Services and Markets Act, no person may carry on a regulated activity in the UK unless he is an authorised or exempt person under FSMA.

A person may be exempt if he is an appointed representative (as defined in s39 FSMA). An appointed representative is allowed to carry on certain regulated activities by an authorised firm (his Principal) under a contract by which the Principal accepts responsibility for the regulated activities carried on by its appointed representative(s).

For an authorised firm that is considering appointing an appointed representative, SUP12 of the FSA Handbook gives detailed guidance of the conditions which must be satisfied before an appointed representative can be appointed and the implications of this appointment for the authorised firm.

It is the responsibility of an authorised firm to ensure that its appointed representatives are fit and proper to deal with clients on behalf of the authorised firm.

It is also the authorised firm’s responsibility to ensure that any clients dealing with its appointed representative(s) have the same level of protection as if they had dealt direct with the authorised firm.

A firm which appoints an appointed representative must give written notice of the appointment to the FSA. Further details can be found in SUP12. On receipt of this notification, the FSA will update the firm’s entry on the FSA Register to include the information relating to the appointed representative.

The FSA carries out certain checks before updating the FSA Register of this notification which include:

* whether the appointed representative is an existing appointed representative and, if so, whether active and linked to another firm.
* whether the appointed representative is an authorised firm. If this is the case, the firm will be contacted to inform them that the notification cannot be actioned until the firm has cancelled its authorisation as an authorised firm can not be authorised and exempt at the same time.
* whether there is any intelligence information within the FSA relating to the appointed representative. If so, this would be investigated and considered.

marshallka

Different Company that was incorporated last year. Incipience






Originally Posted by Incipience
neither had a consumer credit licence, so they would be the brokers so to speak, you will need to dig out our agreements and find out who the insurer and finacier was.


I only posted cause they did actually have a CCL although they are now dissolved. Sorry about that...

pinknico

I had the same trouble with Future Mortgages(lender ) Central Trust (broker)
Now with a solicitor, they are going after Future Mortgages.

marshallka

Incipience wrote: »

This has nothing to do with Broker/Lender agreeements. FIRSTPLUS is a wholly owned subsidary of Barclays, but for all intents FIRSTPLUS is a seperate legal entity.

An appointed representative is allowed to carry out regulated activites on behalf of the lender.

Under s19 of The Financial Services and Markets Act, no person may carry on a regulated activity in the UK unless he is an authorised or exempt person under FSMA.

A person may be exempt if he is an appointed representative (as defined in s39 FSMA). An appointed representative is allowed to carry on certain regulated activities by an authorised firm (his Principal) under a contract by which the Principal accepts responsibility for the regulated activities carried on by its appointed representative(s).

For an authorised firm that is considering appointing an appointed representative, SUP12 of the FSA Handbook gives detailed guidance of the conditions which must be satisfied before an appointed representative can be appointed and the implications of this appointment for the authorised firm.

It is the responsibility of an authorised firm to ensure that its appointed representatives are fit and proper to deal with clients on behalf of the authorised firm.

It is also the authorised firm’s responsibility to ensure that any clients dealing with its appointed representative(s) have the same level of protection as if they had dealt direct with the authorised firm.

A firm which appoints an appointed representative must give written notice of the appointment to the FSA. Further details can be found in SUP12. On receipt of this notification, the FSA will update the firm’s entry on the FSA Register to include the information relating to the appointed representative.

The FSA carries out certain checks before updating the FSA Register of this notification which include:

* whether the appointed representative is an existing appointed representative and, if so, whether active and linked to another firm.
* whether the appointed representative is an authorised firm. If this is the case, the firm will be contacted to inform them that the notification cannot be actioned until the firm has cancelled its authorisation as an authorised firm can not be authorised and exempt at the same time.
* whether there is any intelligence information within the FSA relating to the appointed representative. If so, this would be investigated and considered.

I posted that already earlier. It was Tiggrae that told us make our complaints to the FOS using Barclays trading as FIrstplus. She had a claims firm.


Here is her post

Marshalla, just to clarify are you claiming for mis selling or for an unfair rebate? Basically I think you would be out of time for the mis selling angle, however if you're going for an unfair rebate that is sooooooooo much easier to reclaim against - FP were regulated (make your complaint against Barclays t/a FP) - the fsa have stated the following in respect to early settlement of PPI - your complaint to the FOS should be on this basis and give the date of 2003 as to when it took place - NOT 2000 when it was sold

I listened before thats all.

I think anyone WOULD be wary of trusting anyones words on here again. After all we have all been robbed haven't we. Nothing wrong in asking questions, after all thats how we got into this mess in the first place. We trused the lenders/brokers words and that they were looking after us and not them.

I want to MAKE SURE i get it right this time.

Some don't want to make the same mistakes again and again, after all we are all strangers.

Turboman

Hi Marshallka & Incipience

I was wondering if you could advise my cousin who has had an accident at work recently.

In your opinion-would a standard PPi policy cover him for loss of earnings in the case I detail below?

My cousin was in an accident at work, so he filled out an insurance claim. The insurance company contacted him and asked for more information. This was his response:

"I am writing in response to your request for additional information, for block number 3 of the accident reporting form.

I put 'poor planning' as the cause of my accident. You said in your letter that I should explain more fully and I trust the following detail will be sufficient.

I am an amateur radio operator and on the day of the accident, I was working alone on the top section of my new 80-foot tower. When I had completed my work, I discovered that I had, over the course of several trips up the tower, brought up about 300 pounds of tools and spare hardware.

Rather than carry the now unneeded tools and material down by hand, I decided to lower the items down in a small barrel by using the pulley attached to the gin pole at the top of the tower. Securing the rope at ground level, I went to the top of the tower and loaded the tools and material into the barrel. Then I went back to the ground and untied the rope, holding it tightly to ensure a slow decent of the 300 pounds of tools."

"You will note in block number 11 of the accident reporting form that I weigh only 155 pounds. Due to my surprise of being jerked off the ground so suddenly, I lost my presence of mind and forgot to let go of the rope. Needless to say, I proceeded at a rather rapid rate of speed up the side of the tower. In the vicinity of the 40-foot level, I met the barrel coming down. This explains my fractured skull and broken collarbone.

Slowed only slightly, I continued my rapid ascent, not stopping until the fingers of my right hand were two knuckles deep into the pulley. Fortunately, by this time, I had regained my presence of mind and was able to hold onto the rope in spite of my pain.

At approximately the same time, however, the barrel of tools hit the ground and the bottom fell out of the barrel." "Devoid of the weight of the tools, the barrel now weighed approximately 20 pounds. I refer you again to my weight in block number 11. As you might imagine, I began a rapid descent down the side of the tower. In the vicinity of the 40-foot level, I met the barrel coming up. This accounts for the two fractured ankles, and the lacerations of my legs and lower body.

The encounter with the barrel slowed me enough to lessen my injuries when I fell onto the pile of tools and, fortunately, only three vertebrae were cracked. I am sorry to report, however, that as I lay there on the tools, in pain, unable to stand and watching the empty barrel 80 feet above me, I again lost my presence of mind. I let go of the rope.........."

LilacPixie

ooo see there is a PPI fourm now!!!!!

Incipience

Turboman wrote: »

Hi Marshallka & Incipience

I was wondering if you could advise my cousin who has had an accident at work recently.

In your opinion-would a standard PPi policy cover him for loss of earnings in the case I detail below?

My cousin was in an accident at work, so he filled out an insurance claim. The insurance company contacted him and asked for more information. This was his response:

"I am writing in response to your request for additional information, for block number 3 of the accident reporting form.

I put 'poor planning' as the cause of my accident. You said in your letter that I should explain more fully and I trust the following detail will be sufficient.

I am an amateur radio operator and on the day of the accident, I was working alone on the top section of my new 80-foot tower. When I had completed my work, I discovered that I had, over the course of several trips up the tower, brought up about 300 pounds of tools and spare hardware.

Rather than carry the now unneeded tools and material down by hand, I decided to lower the items down in a small barrel by using the pulley attached to the gin pole at the top of the tower. Securing the rope at ground level, I went to the top of the tower and loaded the tools and material into the barrel. Then I went back to the ground and untied the rope, holding it tightly to ensure a slow decent of the 300 pounds of tools."

"You will note in block number 11 of the accident reporting form that I weigh only 155 pounds. Due to my surprise of being jerked off the ground so suddenly, I lost my presence of mind and forgot to let go of the rope. Needless to say, I proceeded at a rather rapid rate of speed up the side of the tower. In the vicinity of the 40-foot level, I met the barrel coming down. This explains my fractured skull and broken collarbone.

Slowed only slightly, I continued my rapid ascent, not stopping until the fingers of my right hand were two knuckles deep into the pulley. Fortunately, by this time, I had regained my presence of mind and was able to hold onto the rope in spite of my pain.

At approximately the same time, however, the barrel of tools hit the ground and the bottom fell out of the barrel." "Devoid of the weight of the tools, the barrel now weighed approximately 20 pounds. I refer you again to my weight in block number 11. As you might imagine, I began a rapid descent down the side of the tower. In the vicinity of the 40-foot level, I met the barrel coming up. This accounts for the two fractured ankles, and the lacerations of my legs and lower body.

The encounter with the barrel slowed me enough to lessen my injuries when I fell onto the pile of tools and, fortunately, only three vertebrae were cracked. I am sorry to report, however, that as I lay there on the tools, in pain, unable to stand and watching the empty barrel 80 feet above me, I again lost my presence of mind. I let go of the rope.........."

I cant help with this one, as I have no way of knowing what and/or wasnt covered by the policy.