ilmoro
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'Wondering which of the bu***rs to blame, and watching for pigs on the wing.' - Pink Floyd
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Post by ilmoro on Dec 9, 2017 1:04:12 GMT
Is there a copy of the old terms and conditions on this forum? Fairly certain ilmoro has linked to them in one of his useful, pinned threads, but to save time:- OLD Terms & ConditionsNEW Terms & ConditionsThe relative T&Cs can be found by clicking the button at the bottom of any loan's 'Loan Particulars' page on site. The minor problem being that in several cases the T&Cs linked to in the 'Loan Particulars' arent the correct ones.
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izigor
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Post by izigor on Dec 9, 2017 9:08:20 GMT
I assume a 'legal beagle' forum member considered this point and LY have a get out clause and weren't liable to repay investors in full at the end of the contractual terms of all the old t&c loans. Is there a copy of the old terms and conditions on this forum?Yup, there's a link on ilmoro 's invaluable reference thread to a copy of the old T&Cs here. Although they were clearly drafted with SavingStream's original pawn-style lending model in mind, clauses 5.2.3 and 5.2.4 make it clear that lenders are on the hook for any shortfall. (crossed with MONEY ) Looking at the clauses mentioned: 5.2.3 Lendy provides no guarantee or warranty that the Market Value of any Asset will be realised at auction; and 5.2.4 an additional administration fee of 5% of the loan value will be deducted from the net proceeds of sale of the Asset at auction (after deduction of selling expenses such as commissions). Net proceeds of sale of Assets shall be used to settle amounts due in the following order: principal amount of loan which was funded by, and is repayable to the Investors (allocated in proportion to the loan amounts funded); fees due to Lendy in accordance with Lendy Ltd's Terms and Conditions; interest due to the Investors (allocated in proportion to the loan amounts funded); and the balance (if any) will be returned to the Borrower to their Nominated Account. I don't see these clauses making it clear that "lenders are on the hook for any shortfall". For example, clause 5.2.3 is a perfectly acceptable statement but based on the T&C we lent money to Lendy and if the Market value of the Asset is not realised then that's Lendy's problem, not ours. Obviously, we'd need a qualified lawyer to clarify (or mudify) the T&C as a whole but from reading the above clauses, I'm fairly sure Lendy isn't off the hook unless there are other clauses which are more relevant.
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littleoldlady
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Post by littleoldlady on Dec 9, 2017 9:45:10 GMT
Don't forget 12.3 and 12.4
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SteveT
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Post by SteveT on Dec 9, 2017 10:05:18 GMT
Don't forget 12.3 and 12.4 12.2 as well, for that matter
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izigor
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Post by izigor on Dec 9, 2017 15:25:13 GMT
Thanks for the pointers. Section 12:
12. LIMITS ON LIABILITY
12.1 We agree to:
12.1.1 act fairly, reasonably and responsibly in our dealings with you;
12.1.2 not discriminate against any Saving Stream Investor because of their race, sex, disability, ethnic background or sexuality; and
12.1.3 correct mistakes and handle complaints promptly in accordance with any agreed time periods.
12.2 Except as otherwise expressly stated in these terms and conditions, we shall only be liable for foreseeable loss or damage arising directly out of our own breaches of these terms and conditions, negligence or wilful misconduct.
12.3 Our liability to you on any basis whatsoever shall not exceed the total amount of revenue earned by Saving Stream in respect of transactions entered into by you through SavingStream.co.uk, save in relation to errors in the Market Value which can be shown, by reference to an appropriately qualified independent third party, were outside the Specified Tolerance at the time the valuation was made, in which case our liability to you shall not exceed the proportion of the principal amount of the loan which was funded by you.
12.4 We shall not be liable for any loss or damage arising out of or in connection with:
12.4.1 any error or inaccuracy in the data entered by you or any other Saving Stream Investor;
12.4.2 errors in the Market Value which can be shown, by reference to an appropriately qualified independent third party, were within the Specified Tolerance at the time the valuation was made;
12.4.3 changes in commodity prices;
12.4.4 fraud on the part of the Borrower; or
12.4.5 any negligence, breach of Agreement, misrepresentation or wilful misconduct in relation to the Loan Agreements or other uses of our platform (other than our own).
12.5 We shall not be liable for any loss or damage arising out of or in connection with lost data, lost profits, damage to goodwill or business interruption, any delay or failure to perform our own obligations under these terms and conditions due to circumstances beyond our own reasonable control. +-
12.6 Nothing in these terms and conditions shall exclude or limit the liability of either you or us for death or personal injury caused by our own negligent or fraudulent acts or omissions.
--------------------
To my reading, I find Lendy highly possibly liable for the principle amount of the loan. However, this will not be as per business-as-normal procedure. According to the terms above, Lendy can report a limited payout. A complaint will then likely be required. If upheld (it should be, based on above clauses .. if not then its a court case), the complaint will be followed by the engagement of a "qualified independent third party" to show that the (or if the) valuation was over-optimistic.
I will try to search for the parameters of the "Specified tolerance" in the original valuation, when I get a minute (if someone already has this handy, it would be nice if can be posted in this thread, thanks)
Disclaimer: Just to be clear, above is just an opinion, I'm not qualified to give legal advice and that is not intended.
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izigor
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Post by izigor on Dec 9, 2017 15:59:24 GMT
ok, rather than from the valuation document (where a brief glance was in vain), I found a precedent.
The margin of error should be the upper end of 15%. In order to establish negligence, a claimant (us) must prove the disputed valuation was “one which no reasonable valuer would have reached and was outside the permissible margin of error” although even if the valuation was outside the range, the professional may escape liability if he can prove he exercised reasonable skill and care.
The negligence angle is PLAN B.
I believe PLAN A, (if it comes to that) remains on the (apparent) fact that the loan contract was between the Lender and Lendy. This means, whether Lendy has included clauses or not trying to get out of liability, it still has to satisfy the principles of a (loan) contract .. However saying all that, now that I'm looking into it, I can't yet see where the "old terms" specifies us as the lender and 'savings stream' as the borrower. No I haven't spent a lot of time in it but if anyone can point me to that please, I'd be grateful?
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izigor
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Post by izigor on Dec 9, 2017 16:16:29 GMT
ok, I found it:
4.4 Saving Stream guarantees the enforceability of all its existing Loan Agreements.
4.5 By funding a loan, you are agreeing to enter into a Loan Agreement with Saving Stream. Once you have Invested in a loan, the funds cannot be removed for the duration of that loan.
I will repeat once more that I'm not qualified to give legal advice and my opinions here are not professional
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agent69
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Post by agent69 on Dec 9, 2017 16:33:00 GMT
It's important to remember that the terms and conditions of any contract are just words written on a piece of paper. The fact that you agree to them doesn't necessarily make them legally enforceable. As an example, you borrow £100 and the loan agreement says that if you don't repay on Friday the lender has the right to shoot you. It would be a brave lender who pulled the trigger and then tried to rely on the T's & C's to avoid prosecution.
The unfair contract terms act 1977 (which may have been tweaked by 2015 legislation).
The Unfair Contract Terms Act 1977 (c 50) is an Act of Parliament of the United Kingdom which regulates contracts by restricting the operation and legality of some contract terms. It extends to nearly all forms of contract and one of its most important functions is limiting the applicability of disclaimers of liability. The terms extend to both actual contract terms and notices that are seen to constitute a contractual obligation.
The Act renders terms excluding or limiting liability ineffective or subject to reasonableness, depending on the nature of the obligation purported to be excluded and whether the party purporting to exclude or limit business liability, acting against a consumer
The P2P industry is like a festering swamp, and sooner or later somebody (platform, valuer, borrower) will end up in court and then the sticky brown stuff will hit the fan big time.
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Post by dualinvestor on Dec 9, 2017 17:50:08 GMT
It's important to remember that the terms and conditions of any contract are just words written on a piece of paper. The fact that you agree to them doesn't necessarily make them legally enforceable. As an example, you borrow £100 and the loan agreement says that if you don't repay on Friday the lender has the right to shoot you. It would be a brave lender who pulled the trigger and then tried to rely on the T's & C's to avoid prosecution...............The P2P industry is like a festering swamp, and sooner or later somebody (platform, valuer, borrower) will end up in court and then the sticky brown stuff will hit the fan big time. Actually that would be a contract for an illegal purpose and void  However of course the sentiment of your meaning is valid and I fully agree with your final comment, eventually someone will lose enough money to take the matter to court and a judge will decide on what the terms really mean.
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littleoldlady
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Post by littleoldlady on Dec 10, 2017 9:13:34 GMT
I am not an expert on the internet but ISTM that in a Court it might be very difficult to prove what the T&C's were at the time of the investment. The judge would likely know even less than me about such matters and will be used to seeing documents signed and dated.
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agent69
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Post by agent69 on Dec 10, 2017 9:59:40 GMT
I am not an expert on the internet but ISTM that in a Court it might be very difficult to prove what the T&C's were at the time of the investment. The judge would likely know even less than me about such matters and will be used to seeing documents signed and dated. I think the general principle with contracts is that if they are unclear, they get read in favour of the party that didn't write them.
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