Welcome/Cohens - case withdrawn ***WOO-HOO ***

[Prudence]

pt2537 - Paul, sorry I know you are busy, but wondered if you have had a chance to have a look through documents I sent you? I have only got till 16 Sept to file full defence and am starting to panic just a little!!! Many thanks,

[pt2537]

Hi,

 

yes i had a quick look but the agreement looks quite small so i cant read it very well and also the figures are crossed out so i cant run them through the Dualcalc program to check if they are accurate or not

 

this is the problem

[Prudence]

Thankyou. Sorry, the wording/figures on the agreement are quite small. Is there a way I can send it to you in an enlarged format to make it readable? The figures aren't crossed out, just small! If necessary, I could type it all out and send that to you?

[Prudence]

Hi, Hope you are around Paul to look at this for me please. I have got to file a full defence in one week, by 16 September and I am now panicking. I don't have anything except what you advised to get the judgement set aside.

Decided to type the agreement documents out as couldn't seem to enlarge them, so here goes.

 

1) Agreement letter from June 2005 from Welcome

 

Dear (name)

 

Hire Purchase Agreement Number ---------

 

May I first thank you for choosing Welcome Finance Services to help you with your car purchase from (name of co).

 

With regard to the above account I am pleased to enclose your copy of the legal agreement. The purpose of this letter is to detail the payments and products we have arranged with you. If any of the details below are incorrect, or you have any queries, please contact the office on 0115 977 8800 where a member of staff will be pleased to assist you.

 

Payment details:

Have chosen to pay your account Monthly with payments of £244.63 due on 01 of each month. Your first payment is due on Monday 01 August 2005 which will be paid by direct debit. The period you chose to take your account over was 48 months.

 

Payment Protection Insurance:

Your payments are covered by Payment Protection Insurance for 48 months. This insurance only covers the first named person on your legal agreement. It will pay your monthly payment in the event of accident, sickness, redundancy and death. Please see the leaflet enclosed for full details of what this policy does and does not cover.

 

Mechanical Breakdown Insurance:

Not Applicable.

 

Emergency Recovery with Legal Assistance:

Not Applicable.

Shortfall Insurance:

The Shortfall Insurance, which covers you for 48 months, will pay off all or part of the shortfall between the amount you get for your motor insurer and the finance settlement figure. If you take out Payment Protection Insurance (PPP), a warranty or emergency recovery as part of the finance deal, the settlement of these elements is not covered by the Shortfall Insurance (although you will receive a rebate of the PPP premium). Any arrears are also excluded. Shortfall insurance covers the settlement on the vehicle itself, the shortfall premium and the finance charges on these.

 

Collision Call Legal Expenses Insurance:

Not Applicable.

 

For all of the above products you will be sent additional information via the warranty company. We suggest that you keep this with your Welcome pack.

 

As part of our Customer Care Programme we will regularly contact you regarding your account to ensure high service standards and the possibility of additional finance. Remember, if you refer a friend or relative to us who is successful in obtaining a loan, you would be eligible to receive £25 worth of gift vouchers of your choice.

 

Can I once again thank you for choosing Welcome Financial Services to help you finance the purchase of your car and I hope you are happy with the loan and service you received.

 

Yours sincerely

 

(No Signature)

Hire Purchase Department

 

Enc

 

THIS IS A HIRE PURCHASE AGREEMENT. YOU MAY NOT SELL THIS VEHICLE WITHOUT OUR PRIOR CONSENT.

If a representative of Welcome Financial Services has to contact you regarding a missed payment you will be charged the current minimum charges of £5 for a phone call or letter, £25 for a visit to your home and £20 for a returned cheque or Direct Debit.

 

If you think you may have difficulty in making a payment, please telephone us immediately.

 

Before entering into a credit agreement, please be sure you can afford the repayments.

 

Please note that calls to our company may be recorded for training purposes.

 

2) Credit Agreement

 

TERMS The information shown below and terms over the page.

 

Customer Number: (handwritten Number in boxes and another underneath)

 

Agreement Number: (handwritten in boxes)

 

Broker Number: (typed in boxes)

 

PERSONAL DETAILS OF THE CUSTOMER (please enter details)

 

First Customer & Second Customer (personal details correct)

 

CUSTOMERlS DECLARATION

By signing below you understand and agree that

(a) Your personal details are correct. Any information you have given us is true and will be relied on by us and you have paid the Deposit (if any) shown.

(b) All details apart from our signatures were completed before you signed this Agreement.

© You read the terms of this Agreement, including those overleaf before signing and you are aware in particular of Clauses 6, 9 and 10;

(d) You signed this Agreement either at the business premises of the supplier of the goods or at our business premises.

(e) Before signing this agreement, the cash price of the goods was separately stated to you other than in this agreement.

(f) You have carefully examined the Goods and your attention has been drawn to Clause 13 overleaf.

(g) The terms of the Payment Protection and/or other insurances have been fully explained to you and you fully understand those terms; that any insurance (unless otherwise stated) extends only to the First Customer

(h) You have received an explanatory leaflet detailing the terms and conditions of any insurance.

(i) To the extent that any Payment Protection Insurance applies to you, you confirm you are in full time employment, are not off sick at present and to the best of you knowledge, are in good health

(j) You understand the purchase of Payment Protection Insurance and other insurances are optional and not required by us as a condition of entering into this Agreement

(k) You confirm that you are not an undischarged bankrupt.

(l) Welcome Financial Services do not warrant of represent the mileage on this vehicle.

 

DATA PROTECTION

 

It is important that you read and understand the sections entitle "Use of Personal Information" and "Keeping you Informed" in the Terms and Conditions below. By signing this Agreement you acknowledge that you have done so and consent to the uses of personal data by us and the other members of the Cattles group of companies, set out in those sections.

 

Keeping you Informed

 

From time to time, we or the other companies in the Cattles group of companies, or carefully selected third parties may wish to contact you to provide you with details of our other goods and services or those of such other companies. You may be contacted in each case by post, fax, telephone, home visit, email or otherwise

 

If you do not want to receive details of these goods and services by post and telephone, please tick this box

 

If you do want to receive details of these goods and services by email, SMS or fax, please tick this box

 

If you wish to stop receiving this information at any time then please contact us at Mere Way, Ruddington Fields Business Park, Ruddington, Nottingham NG11 6NZ

 

We may monitor and/or record your telephone conversations with us to ensure consistent service levels for staff training and prevent/detect crime.

 

INSURANCE OF GOODS - COMPREHENSIVE COVER REQUIRED

 

Name & Address of Insurers/Broker (blank box)

 

Policy Cover Note No. (blank box)

Date of Commencement "

Date of Expiry "

 

CREDIT AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974

 

Progressive Financial Services Limited trading as Welcome Financial Services of Mere Way, Ruddington Fields Business Park, Ruddington, Nottingham NG11 6NZ ("we, us, our")

 

First Customer & Second Customers

(personal details in box)

 

Key Financial Information

 

Amount of Credit for the goods 6400.00

Amount of Credit for the insurances 1791.91

Total amount of credit 8191.91

 

Duration of Agreement 48 months

Total amount payable for the goods 9283.00

Total amount payable for the insurances 2508.67

Total amount payable 11,791.67

 

The first weekly/monthly* payment (Payment) is to be paid on or before the same day of the week/month* as the date of this Agreement in the week/month* following the date of this agreement and subsequent payments are to be made on or before the same day every week/month* after that (the "Payment Dates").

 

Payable by 48 weekly/monthly* payments of £244.63 plus the Option Fee which is payable at the same time as the final weekly/monthly Payment if you wish to exercise your option to purchase the Goods (see clause 4 of the Terms and Conditions).

 

*delete as appropriate

 

APR 20.8%

 

OTHER FINANCIAL INFORMATION

 

Goods New Used X ALL THIS INFO COMPLETED

Chassis No.

Make/Model

Reg No CC

First Registered Colour

Engine No

 

Cash Price of Goods 6400.00

Total Cash Price of Insurances 1791.91

Total Cash Price 8191.91

Deposit Cash 0.00

PX Allowance 0.00

Total Deposit 0.00

 

INSURANCES

 

Payment Protection Insurance (see clause 15 of the Terms and Conditions) 1546.91

Mechanical Breakdown Insurance 0.00

Emergency Recovery 0.00

Shortfall Extra Insurance 245.00

Collision Call 0.00

Other Insurances

 

Acceptance Fee 195.00

Finance Charges for Goods 2638.00

Option Fee 50.00

Charge for Credit for Goods 2883.00

Charge for Credit for Insurances 716.76

Total Charge for Credit 3599.77

Rate of Interest on Credit (per annum) 10%

 

Interest calculated on the amount of credit and Acceptance Fee outstanding from time to time throughout the duration of this Agreement, taking into account the payments above, makes up the Finance Charges for Goods and the charge for credit for the insurances, which will be paid by you as part of each Payment. Any payment which is less than the due will be applied towards payment of what is due in respect of the Goods and insurances in the same proportions as the total amount payable in respect of each bears to the Total amount payable.

 

KEY INFORMATION

 

One (thing it's supposed to say our) current charges payable each time you break this Agreement, are as follows

 

Description Amount

If we have to telephone you £5

If we have to write to you £5

If any payment you make is returned unpaid £20

If we have to visit you £25

 

In addition we charge interest on any sum not paid by its Payment Date; reasonable costs we incur as a result of your breach, including legal costs, court fees, our costs incurred in tracing you if you change your address without telling us or in tracing the goods; if we have to repossess the Goods, our costs to repossess, store, insure and sell the Goods; if you return the Goods to us, costs we incur in restoring them to good condition for their age and mileage; if you fail to maintain and service the Goods, costs we incur in doing so; costs of insurance we incur if you fail to provide proof of insurances.

 

You have no right to cancel this Agreement under the Consumer Credit Act 1974, the Timeshare Act 1992 of the Financial Services (Distant Marketing) Regulations 2004.

 

If you exercise your right to settle this Agreement early you might expect to pay, if you settle

after quarter of the term has elapsed £5,950.66

after half of the term has elapsed £4,574.97

after three quarters of the term has elapsed £2,614.78

 

In calculating the amounts shown, no account has been taken of any variation which might occur under this Agreement. Accordingly, the amounts are only illustrative.

 

MISSING PAYMENTS

 

Missing payments could have severe consequences and make obtaining credit more difficult.

 

IMPORTANT - READ THIS CAREFULLY TO FIND OUT ABOUT YOUR RIGHTS

 

The Consumer Credit Act 1974 lays down certain requirements for your protection which should have been complied with when this agreement was made. If they were not, the creditor cannot enforce this agreement without getting a court order. The Act also gives you a number of rights.

 

1) You can settle this agreement at any time by giving notice in writing and paying off the amount you owe under the agreement which may be reduced by a rebate. Examples indicating the amount you have to pay appear in the agreement.

 

2) If you have received unsatisfactory goods or services paid for under this agreement, you may have a right to sue the supplier, creditor or both.

 

3) If the contract is not fulfilled, perhaps because the supplier has gone out of business, you may still be able to sue the creditor.

 

If you would like to know more about your rights under the Act, contact either your local Trading Standards Department or your nearest Citizens Advice Bureau.

 

TERMINATION: YOUR RIGHTS

 

You have a right to end this Agreement. To do so, you should write to the person you make your payments to. They will then be entitled to the return of the goods and to half the total amount payable under this Agreement, that is £4,616.50. If you have already paid at least this amount plus any overdue instalments and have taken reasonable care of the goods, you will not have to pay any more.

 

REPOSSESSION : YOUR RIGHTS

 

If you do not keep to your side of this Agreement but you have paid at least one third of the total amount payable under this agreement, that is £3,077.67 the creditor may not take back the goods against your wishes unless he gets a court order. (In Scotland he may need to get a court order at any time). If he does take the goods without your consent or a court order, you have the right to get back any money that you have paid under this agreement.

 

This is a Credit Agreement regulated by the Consumer Credit Act 1974. Sign it only if you want to be legally bound by its terms.

 

(BOTH OUR SIGNATURES)

 

This is a Hire Purchase Agreement regulated by the Consumer Credit Act 1974. Sign it only if you want to be legally bound by its terms.

 

(BOTH OUR SIGNATURES)

 

The goods will not become your property until you have made all the payments. You must not sell them before then.

 

I wish to purchase:

Payment Protection Insurance (box ticked)

Shortfall Extra Insurance (box ticked)

 

I understand that I am purchasing the product(s) ticked above on credit provided by you and that the terms relating to the credit for the products can be found above and overleaf in this agreement.

 

(BOTH OUR SIGNATURES)

 

I confirm I have received the pre-contractual information relating to the agreement as requried by law. This agreement consists of a Hire Purchase Agreement for the Goods and a Credit Agreement for the insurances; you need to sign both.

 

Witness to Customer Signatures

 

(Signed by Welcome's broker/agent)

 

WELCOME FINANCIAL SERVICES

Signed for and on behalf of Welcome Financial Services

(Signature)

Dated 22/6/05 (which shall be the date of this agreement)

 

Please note tha the termination and repossession rights set out in the notices above only apply to that part of this agreement which relate to the Goods. The figures shown in those notices do not include any amounts payable with respect of any insurances you have purchased. You may settle that part of this Agreement which relates to the insurances at any time by giving notice and paying the balance outstanding with respect to insurances which may be reduced by a rebate.

 

HIRE PURCHASE AND CREDIT AGREEMENT

ON TRADE PREMISES

regulated by the Consumer Credit Act 1974

Weekly/Monthly Paid

[Prudence]

pt 2537 if you are around, would be most grateful for any help on the defence for this, or if anyone else can help.... please! Many thanks, Prudence

[Prudence]

Oh, I hope someone can help me! Please! I have another thread which is Please Help with Setting Judgment Aside - Welcome Finance (next page) but this has progressed as we were successful in getting it set aside but now desperately need help with the Defence! pt2537 was helping me but hasn't come back to me, I know he is very busy but if anyone else can help I would be very grateful.

 

I don't even know what a defence looks like! Do I need a special form, it has to be in by 4pm on 16 Sept so do we need to attend some sort of hearing then or is it just to hand it in?

 

I hope someone can offer some advice please!

[surfaceagentx20]

The defence will be a response to the allegations contained in the Particulars of Claim (PoC). Post the PoC with information about what's so wrong with it and a draft Defence will follow.

 

x20

[Prudence]

Thankyou surfaceagent. The Particulars of Claim state:

 

The Claimant's claim is for the sum of £8---.-- being monies due from the Defendant to the Claimant under a regulated Credit Agreement made in writing between the Defendant and Claimant under a reference -------

 

The Defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served upon the Defendant pursuant to Section 87(1) of the Consumer Credit Act 1974.

 

The Claimant claims the sum of £8---.--.

 

We put on the Applic to Set Aside form:

 

"The amount claimed was/is in dispute. I attach my initial letter to Cohens (representing Welcome) dated 5/8/07 requesting a breakdown of the amount claimed. I did not receive a response. My letter was sent by Recorded Delivery.

I received the claim form dated 28/8/07, acknowledged it online and telephoned Cohens who informed me that they would put "everything on hold" as the amount was in dispute and they would let us have the breakdown they requested. We are still awaiting the breakdown of charges.

We did not make this application earlier as we were told by several people that there was nothing we could do until we ourselves discovered this available course of action."

 

Can I give you the link to my previous thread where there is lots of information about this case because I am not sure which bits of advice/info are the most relevant for you. Here is the link:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/156368-please-help-setting-judgement.html

 

Many thanks. I very much appreciate this help.

[Goldlady]

Hi Prudence, can I ask how much you have actually paid them so far before your hubby became ill? I will try my best to help here - and as a litigant in person your defence does not have to be in legal-ese if you know what I mean.

 

On first read of your thread it looks as if the PPI was mis-sold and you have encountered a lot of brick walls whilst trying to make the best of things.

[Prudence]

Thankyou so much Goldlady! We had paid them 7 payments = approx £1700.

[Prudence]

I did actually submit a claim to the Ombudsman that we believed the PPI was missold over a year ago and I'm afraid to say I did not get back to them in time with some information requested due to elderly Mother being ill, plus financial difficulties, etc, just was going through a bad time. I am so mad that missed the deadline. Is all hope lost?

[Goldlady]

You must have paid more than that - otherwise they would have taken the car. In your first post you said you had paid £3300. I presume you still have the car? What I want to try and work out is how much you actually would owe them if the PPI was removed. And also see if we can get the debt written off because the PPI was mis-sold and was not available to you when you needed it.

[Goldlady]

No all hope is never lost.

[Prudence]

Thankyou. We paid them about £1700 before hubby became ill then mainly half payments, in total amounting to approx £3500.

[Prudence]

Yes, we do still have the car.

[Goldlady]

On what basis did you get the set aside? Was it because they had jumped the gun on issuing the claim or just that you disputed the amount?

[Prudence]

I said that the Agreement was not headed as required by Schedule 1 Consumer Credit Agreements Regulations 1983 and that the PPI was missold and also that the amount was in dispute.

[Goldlady]

I need to go to bed, but I will be back tomorrow. Do you know why the court agreed to the set aside? Was it because the debt was generally in dispute or did they attach particular importance to any of your statements?

[Prudence]

Ok, thanks Goldlady, really appreciate your support. I will look out the Court form that came through after it was set aside to see if it says on there. I know I was going on to the judge abou the lack of communication from Welcome but he kept asking me 'yes, but what are the grounds' and then I quoted the three things I mentioned above which he made note of. I will be back tomorrow, goodnight Goldlady.

[Goldlady]

Hi again, I will be away until Sunday night - going to see if our caravan is still there and hasn't floated away down a river somewhere:eek:. I have been thinking about your defence. I am not very good at the words and most of mine have been just 'telling it how it is'.

 

I think what you need to say is that when you borrowed the money (is it joint or in hubby's name only?) you took out the PPI because you believed it would cover you should it be needed. You then need to explain about the arguments you had with them about whether his injury was a pre-existing condition etc etc. And how badly you struggled to make the part payments. What I am driving at is that if the insurance had been valid as you had expected then the loan would have been fully repaid. And that you are asking the court to write off the outstanding balance....

 

As a safety net in case the judge isn't in the mood for writing it off completely, at the very least you want the PPI refunding. By my calculations with the payments you have made the outstanding amount, if the PPI is totally removed from the figures, would be around £4900.

 

If you have a go at putting all the aspects together I will give it some more thought while I am sitting in the sun drinking wine;) (wishful thinking - I know I can get the wine from Tesco but not sure about the sunshine). Not sure if Paul will happen along but I can try and get some help if needed.

 

Let me know if you find out what clinched the set aside. I am not well up on the title on the agreement bit you mentioned, but will see what I can find out.

[surfaceagentx20]

OK, I've read that thread. Strange they are not pursuing you for the car as well.

 

The Particulars of Claim refer to a default notice served under section 87(1) of the Act. I don't think this was revealed in your previous thred. Are you able to post a copy of it?

 

If not, answer these questions:

 

[1] what is the date of the notice?

[2] how was it sent to you?

[3] when did you receive it?

[4] what does the notice require you to do to comply with the notice?

[5] when does the notice require you to have complied with it by?

[6] are there any parts of the notice in capital letters? If so what does it say? (copy this word for word exactly as it appears in the notice)

 

x20

[Prudence]

Thanks surfaceagent. Goldlady has also been helping me with this problem. I believe it was sent in the post, though I cannot be sure to be honest as it was an extremely stressful period. I think it may be quicker for me to type out the Default Notice exactly as it is. Here goes, and thanks again for any help you can offer:

 

IMPORTANT - YOU SHOULD READ THIS CAREFULLY

 

 

DEFAULT NOTICE

 

 

Served Under Section 87(1) of the Consumer Credit Act 1974

 

Date of Notice: 22-Jun-07

 

Hire Purchase Agreement No. (7 figure number)

 

between (my name) of (our address)

and Welcome Financial Services Limited of (branch address)

 

We refer to the above Agreement which you have entered into with us. The terms and conditions provide that you must pay each monthly installment in full on its due date. You are in breach because you have failed to pay the contractual installments.

 

To remedy the breach you must pay to us the total arrears of £2,690.93 before 06-Jul-07

 

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN ESPECT OF THE BREACH

 

IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU (OR A SURETY).

 

FURTHER ACTION

 

On or after the date shown we shall terminate the agreement, enforce our right to recover possession of the goods and/or require payment of the outstanding balance, less rebate allowable as set out below. We shall also require you to deliver up the goods to us.

 

Termination of the Agreement will take effect on the date shown unless the total arrears are paid in full before that date.

 

BUT IF YOU HAVE PAID AT LEAST ONE THIRD OF THE TOTAL AMOUNT PAYABLE UNDER THE AGREEMENT SET OUT BELOW (OR ANY INSTALLATION CHARGE PLUS ONE THIRD OF THE REST OF HTE AMOUNT PAYABLE), WE MAY NOT TAKE BACK THE GOODS AGAINST YOUR WISHES UNLESS WE GET A COURT ORDER (IN SCOTLAND, WE MAY NEED TO GET A COURT ORDER AT ANY TIME). IF WE DO TAKE THEM WITHOUT YOUR CONSENT OR A COURT ORDER, YOU HAVE THE RIGHT TO GET BACK ALL THE MONEY YOU HAVE PAID UNDER THE AGREEMENT SET OUT BELOW:

 

Total amount apyable under agreement (less any Installation Charge) £11,742.24

Total amount that you have paid by the date of the giving of this notice £2,935.56

 

PAYMENTS TO BE MADE:

 

'Arrrears'; £2,690.93

Outstanding balance under this agreement £8,040.05

Less rebate allowable in future installments* (£1,499.88)

Less insurance rebate* (£694.57)

Total amount to be Paid £7,602.56

 

*Rebate is calculated on the assumption that payment is made on the date shown and will be revised if payment in full is not made on that date.

 

IF YOU HAVE DIFFICULTY IN PAYING ANY SUM OWING UNDER THE AGREEMENT OR TAKING ANY OTHER ACTION REQUIRED BYTHIS NOTICE, YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU OR ANY SURETY MORE TIME IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE, FOR EXAMPLE, YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CIITZENS ADVICE BUREAU.

 

Signed (signature) Branch Manager, Welcome Financial Services Limited

 

CM V2 18.04.07

[Prudence]

We wrote this to the solicitors on 5.8.07 by R.D.

 

I am in receipt of your letter dated 25 July and would advise you that I have written to Welcome Finance many times now via Recorded Delivery mail and am still awaiting their reply.

 

I dispute the amount owed which you quote - £8075.05 - and would like you to supply me with a full breakdown of this amount in writing as soon as possible.

 

to which we received no reply. Then we sent this on 24.9.07 to Welcome with a copy to Solicitors and also a copy to the Northampton Court (we had received the Claim papers late August) whether this makes any difference!

 

In view of the fact that we have not received to any replies to our letters sent to you by Recorded Delivery or to our letter to (solicitors), we have no option but to terminate our contract forthwith.

 

I am beginning to wonder if we do have a good case now. I was very optimistic after correspondence on the forum with pt2537 as he said we could put together a "killer case"! But now I am feeling very nervous. Will we be required to see the judge when we submit the defence (if I manage to get it together) on Tuesday? Is there a special form I need?

[pt2537]

OK, I've read that thread. Strange they are not pursuing you for the car as well.

 

they are unable to pursue for the car as the agreement is not secured upon the car unless it is a Hire purchase agreement and must be headed as such( see schedule 1 SI1983/1553)

 

because it is a basic credit agreement they can only pursue for the sum loaned under the agreement

[Prudence]

Hi Paul, It does say Hire Purchase Agreement at the bottom of the agreement - hopefully this doesn't count? Also if you have time I would be grateful for any further advice. Many thanks, P