Welcome Finance - Is This Enforceable??

[emanevs]

bump!, anyone??

 

what do I do now? after the send me their defence??

 

can anyone point me?????????????

[IdaInFife]

can you clarify what you put as your particulars of claim?

[emanevs]

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At the xxxxxxxxxxx County Court

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Claimant

xxxxxxxxxx

Defendant

Welcome Financial Services

Kingston House, Centre 27 Business Park, Woodhead Rd, Birstall, Batley WF17 9TD

 

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Brief Details of Claim

Money claim for return of mortgage charges and associated interest charges applied to the Claimants mortgage account by the Defendant on the basis of a mistake.

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Value:

Charges £xxxxxxxxxxxxx

Interest under s.69 County Courts Act 1984 £xxxxxxxxxx

Court Fee £ xxxxxxxxx

 

TOTAL £xxxxxxxxxxxxx

 

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Particulars of Claim

The Claimant had an account xxxxxxxxxx ("the Account") with the Defendant which was opened on or around xxxxxxxxxxxx and closed on or around xxxxxxxx

1. The account was conducted on the basis of the defendant’s own standard terms and conditions.

2. At all material times the Claimant was a consumer and the Defendant was a supplier within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999

3. During the period in which the Account was operating the Defendant debited numerous charges to the Account in respect of alleged breaches of contract on the part of the Claimant.

4. Alternatively the charges were levied in respect of various purported services provided by the Defendant and relating to fee rebates, settlement penalty interest and so forth.

5. The Defendant also charged interest on the charges which were applied.

6. The charges were levied on the basis of certain purported contractual terms which apparently permitted the charges to be made.

7. A list of the charges applied is attached to these particulars of claim.

The Claimant contends that:

 

Insofar as they may be penalties, the charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach, but instead act in terrorem to ensure contractual compliance and to deter a breach on the part of the Claimant.

 

Insofar as they purport to be services provided by the Defendant, the High Court and subsequently the Court of Appeal have held the services in respect of which the defendant has levied charges are subject to tests of unfairness under the Unfair Terms in Consumer Contracts Regulation 1999.

 

The purported terms imposing the charges levied by the Defendant are invalid under UTCCR because

 

a.They are contrary to the requirement of good faith.

b.They cause a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer in that:-

• The Defendant is a wholly dominant partner in a non-negotiable standard-form contract.

• There are a limited number of providers of banking services all whom exercise similar dominance over their customers in non-negotiable standard form contracts.

• These banks exercise a collective dominance in the market.

• The charges of all banks are highly similar in nature and in cost and so the consumer in general and the claimant in particular has no real choice between banking service providers and is forced to acquiesce to the charges.

• The charges exceed actual costs by several thousand percent

• They are applied unilaterally in a standard form contract without the possibility of negotiation

• The Defendant raises the charges or restructures its charging scheme at will without discussion with its customers

• The Charges are of subsidiary importance to the customer in the context of the Banking Contract as a whole and would not influence the making of the Banking Contract.

• The customer had no means of assessing the fairness of the Charges at the time of entering the contract

• The charges reflect a markup of several thousands of percent on the costs of dealing with the claimant's "delinquency" episodes. This is an extraordinary markup for any UK business. The normal markup on the High Street is less than 100%.

• Many of the Defendants charges are levied on previous charges incurred in preceding months. Therefore the Defendants are themselves causing the impecuniousity which then triggers more charges. Therefore the Defendants have caused much of the claimant's impecuniousity and it is the Defendants who are causing the charges to be levied with a view to their own profit.

• The Defendant operates its high level of charges in order to cross-subsidise other banking services which it provides to other customers at less than cost price - "free-banking".

• The charges could be imposed repeatedly and interest at a higher rate could be charged on those accumulated charges

• The Defendant's charges structure depends upon the impecuniousity and vulnerability of its poorer customers to provide free-banking services for those in a better position.

• The overall charging regime operated by the Defendant is disproportionately applied to a minority of its customers, often those who are least able to afford it.•

As established by the High Court and subsequently by the Court of Appeal (OFT v Abbey & 7 Ors) the customer would receive no service or benefit in return for the imposition of charges.

 

11.In the premises the terms imposing the charges are unfair within the meaning of Regulation 5 (1) and thus not binding on the Claimant under Regulation 8.

 

Accordingly the Claimant claims:

 

a) the restitution of the amounts debited in respect of charges in the sum of £ xxxxxx

b) Restitutionary damages to be assessed by the court

interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from xxxxxxxxxx to xxxxxxxxx of £ xxxxxxxx and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £xxxxx per day

 

Court costs or other costs as allowed by the court;

I believe that the contents of these particulars of claim are true

[emanevs]

Bump!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

[middenmess]

Emanevs,probably best to click the triangle beneath your name at left to get the attention of a member of the site team to assist you with this.

[emanevs]

Aye, have done - nobody seems to be able to help???

[supasnooper]

Unfortunately emanevs, your POC's are something I have not come across on CAG and appear to be rather specialised.

 

I'm sure you would have found them if they were.

 

I do hope that someone who has experience of your situation will post up some assistance.

[emanevs]

What I need to know is:

1) Is this defence any good - ie chances of their success.

2) What should I do now? - request information under Civil proceedure rules etc?

3) What action advice if anyone has any to beat these shower of s*it!!!!!

 

I submitted claim

They submitted defence

 

What happes now??

[postggj]

Just Dropping In

 

The Guide Lines By The Fla Mean Squat

 

They Are Not An Official Body With Any Poweres

They Are Paid For By Subs From The Likes Of Welcome Etc

 

Any Reference To The Fla,

Give It The Contempt It Deserves

 

Cant Claim Back Charges On A Closed Account

 

Poppy Cock

 

 

What Happens Now Is An Allocation Questionaire Will Be Sent Out

 

WE THEN ASK FOR UNDERWRITING SHEETS AND WELCOME ELITE BROKERS

WATCH THE CRAP HIT THE FAN THEN.

THEY MAY SAY SOD OFF, CORPORATE SENSATIVITY TO YOU, BUT NOT TO A JUDGE

 

I Would Also Send Into The Court A Skeleton Agreement Listing All The Relevent Info In A Shortened Version For The Judge

 

Did You List Things Like

 

Mif

Acceptance Fee Etc As An Illegal Charge Or Just The Penalty Charges

 

Its Early Days So It Will Be Down To Directions From The Judge

 

 

Welcome Will Take It To The Wire So Stand Tough

 

Ome With You 100 % On This

 

DID WELCOME ISSUE A COUNTER CLAIM AND IS A MR P OR A MR O DEALING WITH THE CLAIM

Edited November 12, 2009 by postggj

[emanevs]

thanks Postggi, glad to see you back in the thick of it!!!

 

Havent put in things like the MIF, or the acceptance fee yet because its just the charges that I was claiming back.

 

Can I include all of these things, including some extras at some point?, perhaps at the AQ point??

 

not sure when I can submit a skeleton argument??

 

No counter claim, and Mr emanevs and his cagger mates taking then on!!

[postggj]

You Have Now Joined An Elite Crew Of People Who Have Had The Balls To Take Welcome On In Court.

Hats Off For That

 

We Just Wait Now For The Allocation Questionaire

 

I Think Thats Going To Cost You 150 Quid Though For Small Claims

 

Thats The Last Payment Though But You Will Get It Back

 

Oh, And Not Forgetting 30 Hours At £9.25 An Hour That You Will Charge In Legal Fees To Begin With

[emanevs]

Thanks Postggi,

 

I'm up for the fight!!!!!!!!!

:D

[dantripled]

james,

 

just out of interest, was your legal charge put on by welcome????? i have today sent them a letter requesting removal of mine as it was for an old loan which is now settled....

they may however have carried the charge over to a new secured loan i have with them, but to which they are unable to provide true and executed copy of CCA. so the above argument looks like it would work in my favour too

just wondered how long etc... it took for you to sort yours out really

[emanevs]

Hi, yes it was.

 

Its not sorted yet - by a long way!

[emanevs]

post 80 is really helpful

 

emanevs, had our legal charge removed, no courts involved. Have a look at section 105(5a) security and 106 ineffective securities. If the CCA is unenforcable its not been executed properly therefore the security instrument is also not executed properly and then comes under ineffective securities (sec106) and must then be returned to the surity. In other words the legal charge must be taken off and returned immediately. This is if the CCA is not properly excuted which yours seems to be, they cannot legally retain the security. Read through the 2 sections to understand fully what I am saying, it worked for me so it should work for others too.

[postggj]

evening all

 

sorry to be ignoring you all but been on the sick

 

back up to strength now

 

keep posting andif urgent send me a pm

[dantripled]

post 80 is really helpful

 

emanevs, had our legal charge removed, no courts involved. Have a look at section 105(5a) security and 106 ineffective securities. If the CCA is unenforcable its not been executed properly therefore the security instrument is also not executed properly and then comes under ineffective securities (sec106) and must then be returned to the surity. In other words the legal charge must be taken off and returned immediately. This is if the CCA is not properly excuted which yours seems to be, they cannot legally retain the security. Read through the 2 sections to understand fully what I am saying, it worked for me so it should work for others too.

 

 

emanevs,

 

give me a clue where i can find the above so i can read up myself.

 

thanks

[emanevs]

here we are friend:

 

S105(5a)

105.

Form and content of securities.

— (1) Any security provided in relation to a regulated agreement shall be expressed in writing.

 

(2) Regulations may prescribe the form and content of documents ( “security instruments ”) to be made in compliance with subsection (1).

 

(3) Regulations under subsection (2) may in particular—

(a)

require specified information to be included in the pre-scribed manner in documents, and other specified material to be excluded;

 

(b)

contain requirements to ensure that specified information is clearly brought to the attention of the surety, and that one part of a document is not given insufficient or excessive prominence compared with another.

 

 

(4) A security instrument is not properly executed unless—

(a)

a document in the prescribed form, itself containing all the prescribed terms and conforming to regulations under subsection (2), is signed in the prescribed manner by or on behalf of the surety, and

 

(b)

the document embodies all the terms of the security, other than implied terms, and

 

©

the document, when presented or sent for the purpose of being signed by or on behalf of the surety, is in such state that its terms are readily legible, and

 

(d)

when the document is presented or sent for the purpose of being signed by or on behalf of the surety there is also presented or sent a copy of the document.

 

 

(5) A security instrument is not properly executed unless—

(a)

where the security is provided after, or at the time when, the regulated agreement is made, a copy of the executed agreement, together with a copy of any other document referred to in it, is given to the surety at the time the security is provided, or

 

(b)

where the security is provided before the regulated agreement is made, a copy of the executed agreement, together with a copy of any other document referred to in it, is given to the surety within seven days after the regulated agreement is made.

 

 

(6) Subsection (1) does not apply to a security provided by the debtor or hirer.

 

(7) If—

(a)

in contravention of subsection (1) a security is not expressed in writing, or

 

(b)

a security instrument is improperly executed,

 

 

the security, so far as provided in relation to a regulated agreement, is enforceable against the surety on an order of the court only.

 

(8) If an application for an order under subsection (7) is dismissed (except on technical grounds only) section 106 (ineffective securities) shall apply to the security.

 

(9) Regulations under section 60(1) shall include provision requiring documents embodying regulated agreements also to embody any security provided in relation to a regulated agreement by the debtor or hirer.

 

106.

Ineffective securities.

Where, under any provision of this Act, this section is applied to any security provided in relation to a regulated agreement, then, subject to section 177 (saving for registered charges)—

(a)

the security, so far as it is so provided, shall be treated as never having effect;

 

(b)

any property lodged with the creditor or owner solely for the purposes of the security as so provided shall be returned by him forthwith;

 

©

the creditor or owner shall take any necessary action to remove or cancel an entry in any register, so far as the entry relates to the security as so provided; and

 

(d)

any amount received by the creditor or owner on realisation of the security shall, so far as it is referable to the agreement, be repaid to the surety.

[emanevs]

Hi Postggi,

 

Had the AQ timetable, MUST BE IN ON/BEFORE END OF NOVEMBER 2009.

 

Could do with some help on that, and "WE THEN ASK FOR UNDERWRITING SHEETS AND WELCOME ELITE BROKERS", "Skeleton Agreement Listing All The Relevent Info In A Shortened Version For The Judge"

 

many thanks,

[emanevs]

had this rubbish from them, last week.

Welscum letter 11.11.09 01 of 02 no text.pdf

Welscum letter 11.11.09 02 of 02 no text.pdf

[middenmess]

If they are referring to your 'agreement' then their use of 'refute' is dubious.

 

The pedant: refuting - Times Online

[emanevs]

sorry, im thick.

 

can you explain?

[emanevs]

and this rubbish yesterday.

 

They are trying to say that they made a mistake stating that the "total amount of credit was xxxx", but should have been correctly stated as "total amount borrowed" was xxxx"

 

I did not sign any agreement relating to the amount that they are now saying I "borrowed". They are saying that I borrowed £3000 more than on the unenforceable credit agreement.

 

How can this be, I didnt sign anything that stated this????

 

Any thoughts??

Welscum letter 13.11.09 02 of 02 no text.pdf

Welscum letter 13.11.09 01 of 02 no text.pdf

Edited November 18, 2009 by emanevs

[middenmess]

My understanding,and I might have it wrong, is that if you refute anything then you are able to disprove it in its entirity with evidence.If you do not offer that evidence then you are not refuting it.

 

If the statement in their letter refers to your agreement, then if they do indeed refute [=have evidence] then why haven't they shown it to you and wrapped up this case?

 

As I say I might have this completely wrong,and if so I'm sure that others will correct me so that I'll know for the future.

[middenmess]

and this rubbish yesterday.

 

They are trying to say that they made a mistake stating that the "total amount of credit was xxxx", but should have been correctly stated as "total amount borrowed" was xxxx"

 

I did not sign any agreement relating to the amount that they are now saying I "borrowed". They are saying that I borrowed £3000 more than on the unenforceable credit agreement.

 

How can this be, I didnt sign anything that stated this????

 

Any thoughts??

 

That's a hell of a download,3.5mb for a one page letter!

 

Rollocks anyway I think, especially as the Walker case is going to appealed according to another post on here that I read yesterday.