Welcome Finance - Is This Enforceable??

[emanevs]

WITH A LITTLE HELP FROM MY CAGGER FRIENDS!!!!!!!!!!

 

Dear Sir/Madam

 

RE: SECURED LOAN ACCOUNT XXXXXXXXX – THIS ACCOUNT IS IN DISPUTE.

I refer to my letter dated xxxxx and xxxxx which was delivered via Recorded Delivery to your offices on both occasions.

 

You provided what you believe to be copy of the signed executed credit agreement Section 77(1) and Section 78(1) of the Consumer Credit Act 1974. In addition a full statement of my account was sent to me detailing all debits and credits to the account from the time my accounts were opened with you namely account number xxxxxxxx

 

However, after having an audit on my agreement, I am requesting clarification from you as to the validity of the agreement. I consider that you have not complied with my written request of the xxxxx as the information you have sent me relating to my signed executed credit agreement does not comply with the prescribed terms under section 127 of the Consumer Credit Act 1974.

 

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. If the request is not satisfied after a further 30 calendar days, your company commit an offence. These time limits expired on xxxx and xxxxx respectively.

 

As you are no doubt aware, Section 78(6) states:

If the creditor under an agreement fails to comply with subsection (1) :-

(a) He is not entitled, while the default continues, to enforce the agreement; and

(b) If the default continues for one month he commits an offence.

 

Therefore on xxxxxxx this account became unenforceable at law and no further payment will be made by myself to the account, as you have failed to comply with a request for a true signed copy of the said agreement, and other relevant documents mentioned in it. Further, I do not acknowledge any debt to Welcome Finance Services or Progressive Financial Services or any other associated company.

 

Section 7 Data Protection Act 1998

As you are also aware I requested further information from you as stated in my letter dated xxxx. However, after having an audit of the information you have sent me in response to this request, and in receipt of the documents that you have supplied the disclosure of personal data is incomplete in that at least the following documents are missing.

 

1) You have failed to provide the original signed, executed credit agreements and any terms and conditions that applied to the accounts at the time of default and at the time the accounts were opened.

2) You have provided no notes, or documents relating to instances of manual intervention.

3) You have failed to provide true copies of any default notices or enforcement notice that you creditor sent me, with a copy of any proof of postage that you hold.

4) You have failed to provide documents relating to any insurance added to the accounts, including the insurance contract and terms and conditions, dates they were/ when it was added and deleted.

5. You have failed to provide details of any collection charges added to the accounts; specifically, the date they were/it was levied, the amount of the charge, a detailed financial breakdown of how the charge was/charges were calculated, and what the charge covers/charges cover.

6. You have failed to provide specific details of the fees/charges levied by any other agency in respect of this account/these accounts and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

7. You have failed to provide a genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

8. You have failed to provide a list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

9. You have failed to provide complete copies of statements for the entire duration of the credit agreements.

10. You have failed to provide original, signed application forms for all loan agreements with your organisation.

 

This is not an exhaustive list by any means, it is just an example of some of the information I am missing. Accordingly, I have to tell you that you have not yet complied with your obligations under the Data Protection Act 1998.

 

You have a further xxxx days to comply.

 

PLEASE NOTE that unless otherwise stated by yourselves and if the above documents are NOT provided, it will be CONFIRMED that you are unable to reproduce/provide in any way shape or form any copies of the above requested documents. You are reminded that you have a duty to inform me if you do not have the above documents. This is confirmed in High Court Law - Ezsias v Welsh Ministers - [2007] All ER (D) 65 (Dec).

 

You are reminded that you are obliged to supply all the above documents in line with the Information Commissioners Technical Guidance update (Dated August 2007).

 

Further dispute with loan agreement

The loan agreements in question are secured personal loan.

 

Loan agreement

 

I completed the agreement on xxxx and sent back to welcome finance on xxxxxx. Welcome Financial Services signed this agreement dated xxxxx and Welcome Financial Services paid xxxxxx into my loan account on xxxxx.

 

At no time was the agreement signed at a welcome office or any face to face negotiations entered into.

 

On entering a secured loan, fourteen clear days for a cooling off period needs to be applied. I was never given this fourteen day cooling off period.

 

The cancellation period begins on the date of the conclusion of contract and ends fourteen days from that date.

 

The loan account was paid prior to the completion of the fourteen day cooling off period.

 

 

On entering a secured loan, fourteen clear days for a cooling off period needs to be applied. I was never given this fourteen day cooling off period.

 

The cancellation period begins on the date of the conclusion of contract and ends fourteen days from that date.

 

The loan account was paid prior to the completion of the fourteen day cooling off period.

 

 

 

Any further pursuing of this debt:

Should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading guidance on debt collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:-

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

I. Require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40.

 

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages.

 

Harassment by telephone

I also write in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing to myself and my family

 

I have verbally requested that these stop, but I am still receiving calls.

 

I now require all further correspondence from your company to be made in writing only.

 

I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

 

Be advised that any further telephone calls from your company will be recorded.

 

Harassment through any form of Home Visit -

(If we receive, or are threatened with, a Doorstep Visit)

 

Both of the account holders will only communicate with you in writing. We have noted your repeated attempts to contact me by telephone over the past few weeks/months and these have been duly logged by time and date.

 

Furthermore, should it be your intention to arrange a “doorstep call”, please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make such an appointment with you.

 

There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v Sheppard & Short Ltd [1959] 2 QB 384. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and, if you do so, you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance.

 

I require the following action from Welcome Finance Services and/or Progressive Financial Services:

 

1) All payments made to date to for account xxxxxxxxx should be refunded in full, including interest at the rate of 8% per annum. We total this amount to be xxxx plus 8% interest of xxxxx up to xxxxx.

2) Removal of all defaults entered by Welcome Finance Services and Progressive Financial Services (Note this is to be a complete deletion and not merely an amendment.)

3) I look forward to compensation under Section 13 of the Data Protection Act 1998 to be offered for the processing of my data in the manner it has been done over the past number of years.

4) After a full refund of all payments with interest and compensation are to be received by myself and the other account holder, you will be required under Section 10 and Section 12 of the Data Protection Act 1998 to cease and desist all manual and automatic processing of my data within your company and any other company within your group.

5) Zero the outstanding balance on the account;

6) Close the account;

7) Remove the legal charge in the name of Welcome Financial Services/Progressive Financial Services against xxxxxxx dated xxxx

8) Remove all records of this account from the Credit Reference Agencies.

 

If you do not respond positively to my request, court action may be taken under Section 14 of the Data Protection Act 1998 to force Welcome Finance Services and Progressive Financial Services or any other company within the group to comply with the refund of all monies paid, removal of all defaults maintained and compensation for damage and distress as a result of unlawful data processing. I may also pass the matter to the relevant enforcement authorities including, but not limited to, the OFT, the Information Commissioners Office, Trading Standards, the CSA, the FOS and my local MP.

 

I look forward to your reply within 14 days to resolve the matter amicably.

[IainHL]

.

You provided what you believe to be copy of the signed executed credit agreement persuant to Section 77(1) [and Section 78(1)] of the Consumer Credit Act 1974.

.

.

The Consumer Credit Act allows 12 working days for this request to be carried out before your company enter into a default situation. [if the request is not satisfied after a further 30 calendar days, your company commit an offence.] This time limit expired on xxxx [and xxxxx respectively].

.

 

Emanevs, on a quick scan it looks OK to me, apart from the bits above. Remove the [red text in square brackets], add in/amend the blue text not in square brackets. (It is a shame the editor provided does not have strikethrough.)

 

Section 77 deals with fixed sum loan agreements, section 78 with running account credit agreements (credit cards), section 79 with hire purchase agreements. The committing of an offence after a further 30 days was removed by the 2006 Act.

[postggj]

send to compliance

 

the buck stops there

 

you may want to put in

 

I EXPECT A FULL AND FINAL RESPONSE TO MY COMPLAINT SO IT CAN BE ESCALATED TO THE RELEVENT AUTHORITIES IF REQUIRED

[emanevs]

Cheers everyone,

[emanevs]

also hit em with an unfair charges letter.

[wannabedebtfreesoon]

sub

[brassed-off-2]

Very impressive...Emanevs.

 

Sorry I wasnt around to assist over the last few days....Virgin Media are now on my hitlist...Told them how it is...pay my OH his correct wages on time and i will be able to pay my bill on time...fell on deaf ears though, they treat their staff like dirt:mad:

 

Are you posting up the unfair charges letter ? or have you already sent that off too??

 

b-o-2

[emanevs]

Welscum had a bit of this as well!!

 

Dear Sir/Madam

 

Re: xxxxxxxxxx

 

Request for repayment of charges.

 

We are writing to ask you to refund the charges which you have levied to my account in respect of late payment fees and unfair charges to the sum of £xxxxx plus interest of £xxxxx. Please find enclosed schedule of charges detailing dates, amounts and interest. We now understand that such fees are unlawful at Common Law, Statute and recent consumer Regulations.

 

In the case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract as oppose to a charge which represents a penalty. This law was confirmed and upheld in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79. A charge will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison to the greatest loss that could conceivably be proved to have followed from the breach. A penalty clause is void in its entirety and unenforceable.

 

In addition your charges appear to represent an unfair term of contract which is contrary to the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). Our account falls within the ambit of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as we are consumers. Your charges constitute an unfair penalty under Schedule 2 of the said Regulations which provide an indicative and non-exhaustive list of terms which may be regarded as unfair. Under paragraph 1(e) of schedule 2 this specifically includes terms which have the object of requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation. We would vigorously contend that this is the position regarding the fees which you deemed fit to apply to our account.

 

I would like to bring your attention to the following statement by The Office of Fair Trading:

 

"A term in a mortgage agreement which requires the borrower to pay more for breaching the contract terms than actual costs and losses caused to the lender by the breach (or a genuine pre-estimate of that) is likely to be regarded as an unfair penalty and to be unenforceable both at common law and (in a consumer mortgage) under the Unfair Terms in Consumer Contracts Regulations.

 

We believe that the charges you have levied of £xxxxxx plus interest of £xxxxxxx far exceed any true cost to yourself as a result of our breaches and any genuine pre-estimate you could conceivably reach. If you disagree, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put to as a result of our breaches, in order to reassure us that your charges really do reflect your costs.

 

We really hope that this matter can be resolved amicably and without the need for redress to the courts. Thus we are asking that you refund the charges which have unlawfully been levied on our account. Failure to refund all the money unlawfully taken from us will result in us taking further action. We will give you 14 days to reply accepting, unconditionally, our request in principle and letting us know a date by which we will receive payment. If you do not respond, or you do not respond positively, within this time period, we shall send you a letter before action giving you a further 14 days in which to reflect. We believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.

 

After that, there will be no further communication from us and we shall issue a claim at the expiry of the second deadline. Thus take this letter as 28 days written notice of our intention to issue a court claim should you not comply with our request. I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you will prefer to do this than merely respond with standard letters and leaflets.

 

 

 

Yours faithfully,

[brassed-off-2]

Hi Emanevs

 

Just out of interest. Have you received any replies to your letters yet?

 

B-O-2

[emanevs]

Nothing friend!

 

No chasing of payments as well, bit confused really.

 

Any ideas???

[emanevs]

Since the letter no news!

 

They havent even bothered to write to me.

 

Any ideas what I should do??

[postggj]

Even Though Its Good Manners To Acknowledge A Complaint With In 14 Days

 

The Creditor Does Have Eight Weeks In Total To Give A FinaL Decision

 

Give It A Few More Weeks

 

Me Thinks You Have Stired Up A Right Hornets Nest With This

[emanevs]

dont take then to court yet??

[postggj]

Like I Said

Give It A Few More Weeks

 

I Had This When I Had Welcome In Court

 

Even Though I Won The Judge Rapped My Knuckles For Jumping The Gun

 

After 14 Day We Need To Send Another 14 Day Letter Before Action

[emanevs]

any ideas on the template letter?

 

Also, I have hit em with a unfair charges claim.

 

they have until the 30/09/09 to respond positively.

 

court claim after 28 days.

[postggj]

Ime Sure I Can Dig Out A Letter To Suit This Case

[emanevs]

cheers bud

[emanevs]

just had a final response!

 

usual blah, blagh.

 

I will upload in a minute

[emanevs]

here are welscums FINAL RESPONSE TO COMPLAINT!

 

Please can anyone help??

Welcome final response page 01 amended.pdf

Welcome final response page 02 amended.pdf

Welcome final response page 03 amended.pdf

[pwg6565]

A very interesting reply. Which charges did they reverse emanevs and are you going to carry on with The FOS ?

[emanevs]

dont know where I go from here, and they certainly havent reimbursed me with the full list of charges that I sent them.

[postggj]

very good letter

 

interested in the 14 day cooling off period and wave your rights if reply with in seven days

 

not sure on that

 

the law is quite specific

 

14 days with no contact, even if you reply, they should ignore you

 

 

ime going to phone my pal in the fos

[postggj]

The correct procedure

 

With any contract or sale which is concluded away from the trader’s normal business premise, you must be sure you have been presented with clear written notice of your right to cancel, at or before the time the contract is made. If you have not, the contract is legally unenforceable. This notice, which cannot be in the form of small print, or otherwise disguised, must also provide a cancellation form and advise you on how and to whom a notice of cancellation is to be made. You can use the cancellation form provided or a simple written notice, as long as it is clear of your intentions. And as long as you have posted your notice of cancellation before the end of the cancellation period, it doesn’t matter when it is actually received. For this reason, it is always advisable to send it recorded delivery.

[emanevs]

what does this all mean to a thicko like me?

[postggj]

i think its smoke screen and mirrors again by welcome

 

just spoke to my pal at the fos and he is getting back to me

 

his exact words were

 

NEWS TO ME