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Clare, Solicitor
Category: Law
Satisfied Customers: 33004
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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In 2007 My (then) wife and I took out a secured loan from

Resolved Question:

In 2007 My (then) wife and I took out a secured loan from FirstPlus.
It was to be the biggest mistake of my life.
My wife left me and the property in January 2009 and has never paid a penny since. I am the sole payer of this debt since January 10th 2009. We are now divorced but there is no clean break order between us as yet. To be honest I have never sent the wolves to her door through pure fear of her stopping me seeing my daughter who was 1 at the time she left and is now 8. This was and still is a real risk for me.
The loan was provided based on two incomes which they used to assess eligibility for the loan. They will not listen to me when I argue this point. But I can give them what I cant afford. I am the sole payer.
When my wife left and stopped paying her portion I got into arrears and went to court over it in Hull. Within a Judges chambers along with a solicitor from ever-shed representing Firstplus we discussed the matter.
The contractual payment back then was £498 per month. I offered £300 per month. The judge got angry and said "that wont do". The judge placed a 28 day repossession order over the house to be acted on or before the 11 November 2009.
Immediately following the hearing I made an arrangement with the debtor to pay £350 per month the repossession order never got enforced.
Over a year ago Firstplus lowered my repayment to £250 since they had had the account in dispute over PPI, when they reinstated it they said it was ok to pay £250 per month. This actually was more easy on me. £350 per month was crippling me. The contractual payment would now be around £400.
The original loan amount was £45,000. I have been paying this 8 years and the balance is £19,000 capital, £11K arrears. Add to this the £16,000 Interest. So you might say I have only paid £10K off the original sum borrowed. This is Soul Destroying. but mainly down to the unfair variable interest rate in Clause 7. (in a separate case a judge presided over similar unfair contracts with exact interest rate clauses in them with GE MONEY and they wrote them off for their customers. No such luck for me.
Recently FirstPlus sold ALL customer loans to Elderbridge ltd 18th January 2016. The wrote to use informing us of the transfer.
Since then I have carried on paying the £250
However I noticed on my credit file with experian the loan has totally disappeared from my credit file. I wrote to them recently because the new owners (elderbridge) are flexing their muscles and wanting me to pay more than the amount agreed with the previous owners.
I ceased payment - since this is my only leverage and I asked them to stop harrassing me with the constant phone calls, SMS messages etc.
I explained on my letter I was subject to a previous heart attack and I am now on the list for a coronary bypass graft 10th October 2016. I consider myself vulnerable.
They have contacted my ex wife, stated they have an open repossession order and they are looking to evict me. They have not told me this information by letter.
They wrote back to me with a long letter stating they were sorry for not dealing with my first letter and sorry for the harassment. But would I fill out an income expenditure. I called them to say I would reinstate the payment I was making. They want more that that. I paid them £250 last week. They state they have an open repossession order. how can they if the original order was to be enforce on or before the 11th Nov 2009?
I dont need frightening in my current condition. Or have people knocking on my door post operation.
In my letter, I asked them to prove the debt exist. I asked them to show me a contract between myself and them. They sent to me a copy of the original agreement but because they want me to pay more also stated in their letter stated "Any agreement you had with FirstPlus is no longer valid with us."
- given I have never made an agreement with them do they have contract with me? In the original agreement clause 13 was they had the right to 'assign' (or transfer the debt)
But they have written to me telling me that the previous agreement is "no longer valid with us" - have they made a cock up and I can get this finally off my back??
Sorry it is so long but the devil is in the detail.
Submitted: 1 month ago.
Category: Law
Expert:  Clare replied 1 month ago.

Thank you for your question

My name is Clare

I shall do my best to help you but I need some further information first

Ho wmuch is the property worth and how much is outstanding on the mortgages?

Customer: replied 1 month ago.
Hi ClareAccording to zoopla the house is worth an estimated 169K.The first mortgagee is owed 127K. I have an endowment running to pay it off but I honestly dont think it will cover it. I have a large NHS pension lump sum which I hope will cover the remainder but as you will know this is all speculation at this point.So 127K first mortgagee +35K to secured second charge (FP loan)would leave 8k of equity if sold at 169K.But essentially I don't plan to ride this all out and have partly resigned myself to selling the property at some point in the future and downsizing. Either way the contract originally agreed with FP is unfair if the balance can be adjusted by them never lowering the interest rate."When a contract is made, obligations are accepted in return for benefits. If one party can unilaterally change agreed terms, to its advantage, the balance of the transaction is lost. So a term is likely to be unfair if it gives the supplier the right at its discretion to force the consumer to accept changes to the bargain. A right to change any term in the contract, or to vary its core terms – the price or description of the product – is particularly open to objection.
Fairness, and the law, require that consumers get what they agreed to buy. Goods, in particular, must be of the agreed description and purpose, not just of 'equivalent quality'. A right to raise prices at discretion, where consumers are locked into the contract, is also highly suspect."And perhaps that is another avenue I may persue.I am not trying to renounce my responsibility. I have been paying them year on year but all the time known for some time I am locked into an unfair contract, and I am the only one servicing it.When they recently removed the PPI from the balance, they had to send me the statutory 8% taxable portion. You can imagine my disbelief when they paid have of that figure to my ex-wife, and she has not paid a penny. Now I know she is named on the deal but this is all one sided, to pay her anything is totally unfair. Especially when they know I am the sole payer.The can hide behind the law when it suits them. Fine, I accept that but unfairness is all over this. I am an honest hardworking person who wants to fulfill my obligations. So you can only imagine how I must feel when this is all one sided.Fundamentally, I am not sure what bearing you feel the current property value has in relation to the contractual question of 'do they even have a contract with me'.In January 2016 the sale of my loan and many other custromers of First Plus was sold to Elderbridge. they may have paid as little as £0.10 in the pound for it).To some degree this is slightly irrelevant. On question to show me losses incurred, statements of accounting, contractual agreements, they have written back to me and are keen to remind me that the agreement I signed (along with my then wife) is binding due to clause 13 which allows them (FP) rights to assign (transfer) the debt by what ever means necessary to another party. But in the same correspondence they have stated that the agreement I had, the agreement I signed is no longer valid.They can't have it both ways. Either I have an agreement and I am bound by the clauses within it or I am not.It would be remiss of them to use the previous signed agreement to back their case and use that to ascertain what I am to pay them back per month, and then at the same time inform me that the same agreement is not valid.They have written this in a recent correspondence to myself, under no cohesion from myself.I have no signed agreement with the new debt owner. They paid off the original loan. It has gone from my personal credit report, which also could be construed as my record of what I have paid them since they took it over, but since there is no record they could maintain I have not paid them a penny even having do so honourably. The credit file is as much my record as theirs.They inform me any agreement I previously had is no longer valid. They cannot produce a new agreement between Elderbridge and myself because one has never been made. If they didn't need any agreement going forward, what stops them suggesting or trying to enforce all manner of ludicrousness.regardsIanThem. to meare telling me the 'agreement loan from Firstplus so in essence paid it off. paid t
Customer: replied 1 month ago.
Expert:  Clare replied 1 month ago.

Do you still have a copy of the Possession Order?

Customer: replied 1 month ago.
Hi There.See attached
Expert:  Clare replied 1 month ago.

So after the Order was made how did your persuade the Finance Company not to take action

Customer: replied 1 month ago.
Hi ClareThere was no persuasion on my part.I arrived at the hearing. The FP represented solicitor met me at the hearing but not in a judges chambers and wanted to come to an arrangement. I explained the situation and said I would struggle but offered £300 per month. He asked could I better that, I said I cannot. My wife is not paying and we took this out both paying.He was not happy and said let's proceed to see the judge.There came a point in that meeting where the judge asked me to make a reasonable offer. I said I had offered £300. Then he said 'no that wont do, I am issuing a 28 day repossession order over your house. I suggest you make arrangements with this chap (FP solicitor) to come to some arrangement. The hearing was concluded. We all left the room. I asked the Solicitor what happens now, he informed me to contact the FP appoint DCA credit solutions limited and make an offer. I upped the offer to £350 and they accepted. This went on for some years. The rest you are aware of since then.Do they have an 'open' repossession order? I think not, else why does it have on or before the 11th November 2009.After all it does not say 'OPEN' anywhere either. Please clarify.RegardsIan
Expert:  Clare replied 1 month ago.

I am afraid that First Plus do indeed have an open Order - it stays open until all the arrears are cleared.

The interesting point is whether the current company can take advantage of this

That will depend on the wording of the Transfer deed involved in the sale.

They are entitled to withdraw acceptance of the lower payment - as First Plus could do at any time.

However you should write to them and ask on what basis they are arguing that they have the benefit of the Order

I hope that this is of assistance - please ask if you need further dteails

Customer: replied 1 month ago.
HiThanks for the words. I think you missed the point a little.I wanted to know that since the new owner recently wrote to me informing me that 'any agreement I had with FP (the original debt owner) is not valid with us (elderbridge)' - That this constitutes that there is no agreement since I have never signed anything new with the new owner. I am bewildered as to what agreement they think they have me bound by. Like I said they cannot have it both ways. I am either bound, where they use the old agreement to manipulate the payment and have the right to demand more.Orfollowing their words, not mine, the previous agreement is no longer accepted by them, so I could state, " I accept I am not bound by the original FP agreement since you deem it such. I acknowledge this. In respect of this please present to me the agreement I am bound by" ??My research shows that repossession orders are expired after 6 years if not expedited and not transferable to another party. If the new party wants a repossession order they would have to apply in their own company name.regardless.In summary please clarify these two points:-Agreement is declared by them as null and void and I have the right to assume since they have deemed such that the previous agreement is void, then there is not agreement and able to ask 'what agreement'andrepossession orders are not transferable between companies.Your previous answer is bordering vague. Law is law isn't it after all. There is no greyness?Please research and clarify these two points and we shall call it done. I did pay for clarity not vagueness. Unless of course you are not willing to commit. I will accept so, but please just state so.regardsIan
Expert:  Clare replied 1 month ago.

I am sorry - but you are confusing the Original agreement - the mortgage - which is is still in force - with the agreement to accept a lesser sum which the new Creditor is not prepared to agree to

I am afraid that legally you are certainly still bound by the original loan agreement - including the original payment figure.

It is true that First Plus agreed a lower payment figure - but this was a concession and not a binding contract

They are entitled to say that the agreement to accept a lesser sum is no longer binding on them - it was not contractual.

I am afraid that you cannot use the same argument to negate the Original Contract

It is possible to transfer a possession order - BUT they need to have either Registered it at the Land Registry with a HR4 or they have to apply for the Court for permission to transfer it

Clare, Solicitor
Category: Law
Satisfied Customers: 33004
Experience: I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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