welcome Car Finance - PPI and Mystery Charges - claim form received - help

[mtaylor819]

Should i also include a statement to say that until the letter from IND in September this year, they have made no attempts to contact me to clear this, or recover the vehicle to minimise the debt ?

[mtaylor819]

Can anyone please help does this look right ?

[slick132]

Hi MT,

 

I've asked for some input here about your defence.

 

[mtaylor819]

Thank you slick

[slick132]

Response from Site Team Andyorch :-

 

Its a bit too in-depth and you don't include a Counter claim within the body of the defence. A PT 20 claim should follow the defence.

 

Also, you need to be consistent in how you refer to yourself. Eg in 8.(i) and (ii), you use "I" instead of the Claimant. Use The Claimant throughout.

 

[AndyOrch]

Your defence makes an excellent Witness Statement....which is appropriate to go in depth and fully particularise your defence...try not to play all your hand in your first response...just enough that you have a good knowledge of the law and any proposed defence will contain good legal merit.

 

Once you open all your defence at the first hurdle you retain nothing to fight with in the later stages of the process.

 

Regards

 

Andy

[mtaylor819]

Hi Andy

 

Thanks for your comments. Would you be be able to give an example to show what I need to cut our / leave in at all ?

[slick132]

When the issue about PPI on the Mechanical Breakdown was sorted in 2010, was new paperwork issued.

 

If so, was a new credit agreement issued and did you sign it.

 

[mtaylor819]

Hiya

 

They only acknowledged the figures were wrong after terminating the agreement.

 

The response to my complaint was the figures were in my favour. No new paperwork was sent

[slick132]

Hi MT,

 

As regards the defence, I suggest you redraft it to reflect Andy's comments above and post it back here when you're ready.

 

Bearing in mind your comment in post #84 above, I wonder if they will supply the faulty credit agreement when they eventually show it.

 

[mtaylor819]

I have amended the sections I believe Andy meant, but I don't know which bits to take out !??! I have removed a few but can someone tell me if it is too many ? version 1 is the original with all bits just amended as per removing I for defendant instructions.

 

I haven't included the fact, that they terminated the agreement, whilst the account was being dealt with by their complaints team, who then upheld my complaint but issued no new agreement.

 

Nor have I included that Welcome have made no efforts to pursue the debt, or reduce it by re-claiming the car to sell etc.

[slick132]

Hi MT,

 

In essence, your defence should be a response to the POC's files by the claimant.

 

And that is all you need to address at this stage - to show that you have a viable defence in response to their claim.

 

Draft the defence so that it addresses the POC's. You can refer to relevant legislation but you do not need to go into detail. As Andy says, this should be held back for use in your court bundle.

 

[mtaylor819]

so would you say version 2 is enough to send tomorrow ?

[AndyOrch]

Still too much...I know its difficult to understand but defending claims is like playing poker....their particulars are vague...not too much detail but enough to make a valid claim...they never expand...the more detail the more for you to respond to.

You open up slowly ...vague but accurate response with merit......catch the DJ eye within a few paragraphs....bear in mind that he will not even see the defence until you get to trial and there is a lot more of the process to go through before you get there.You must show that there is valid argument or that the DJ is curious to know more.Dont teach him to suck eggs with chapter and verse of the CCA.

 

Both side will submit DQs and Witness Statements and sound each other out before trial...your aim is to either put them off or get them to discontinue or even get them to mediate before trial date.

 

By submitting the above you have no surprises left to hit them with...they know your defence inside out and could react in various ways.

 

They could put you to strict proof they could make application to strike out your defence..after all they know you have nothing else to add and on the balance of probabilities the court would run with them.

 

 

Here is an example of one of my drafts:-

 

####Particulars of claim####

 

1. The claim is for the sum of £x,xxx,xx in respect of monies owing by the defendant on a credit agreement held by the defendant with Lloyds Bank Group under account number *****, upon which the defendant failed to maintain payments.

2. A default notice was served upon the defendant and has not been complied with.

3. By virtue of a sale agreement between Lloyds Banking Group and the claimant, the claim vested in the claimant who has a genuine commercial interest. The defendant has been notified of the assignment by letter.

Contact drydensfairfax solicitors on.........""

 

 

####Defence####

 

Paragraph 1 is accepted that I have had credit facilities in the past with halifax/LLoyds Banking Group .It is admitted that I was unable to maintain payments due to financial difficulties due to the extortionate interest being applied monthly.It is denied that I have any agreement with Lloyds Bank Group/Capquest

Paragraph 2 is denied with regards to the Defendant being served a Default Notice from either Hallifax/ Lloyds Banking Group

Paragraph 3 I am unaware of any assignment between Halifax/ Lloyds Banking Group and the Claimant I am unaware of ever receiving a Notice of Assignment from either party and the Claimant is put to strict proof to:

 

(i) Show how the Defendant has reached the amount claimed for.

(ii) Show the APR and interest used to calculate the amount claimed for.

 

On receipt of the claim form I served a Section cca s78 request on the claimant, on which the basis of this claim relies upon.This was signed for by the claimants on 07/11/2013. The claimant has yet to comply. i also sent a cpr request to the claimants solicitors this was signed for on the 09/11/2013 again has yet to compy. copies of the requests are attached

 

 

Therefore the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

(d) show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is

owed.

 

On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the Consumer Credit

Act 1974.

 

Until such time the Claimant can comply with my request for a copy of the credit card agreement it relies upon they are prevented from enforcing or requesting any relief as pursuant to the CCA 1974

 

By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

Regards

 

Andy

 

PS what exactly are you counter claiming for?

[mtaylor819]

Is that better ? Or do i need more ?

[mtaylor819]

Have removed the counter claim. There was a piece of defence I found where if an agreement had been terminated incorrectly, you were able to try and claim 1000 for this. There was a case reference as well.

[mtaylor819]

I have changed it to add a little more detail, but hopefully not too much. Can someone check for me as I would like to get this posted today to ensure i hit the deadline.

[AndyOrch]

Not very good Im afraid (either)

 

1. Meaningless and irrelevant

2. Pointless

3.They are not required to respond

4 Is valid and necessary

5.& 6. Irrelevant

 

Defence struck out.

 

Could you type out the particulars of claim verbatim and I will quickly draft you a response.

 

Regards

 

Andy

[mtaylor819]

The Claimant claims for the sums due under Fixed-Sum Loan Agreement(s) regulated by the Consumer Credit Act 1975

entered into between the Claimant and the Defendant.

 

The Defendant failed to pay the contractual instalments in compliance with the terms of the Agreement(s).

 

The term of the Agreement(s) has expired.

 

The Claimant complied with Section III and IV and Annex B of the PD Pre-Action Conduct.

 

And the Claimant claims:

Hire Purchase Account number XXXXXX balance of 8,4745.44 as of 1/5/10.

interesticon under s69 of the county courticon Act 1984 at the rate of 8% a year from 1/5/10 to 4/11/13 of 2,383.34

and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of 1.86 AND costs.

[AndyOrch]

Ok now list me your 5 main contentions as to why you are defending this claim and why they are not entitled to any relief.

[mtaylor819]

1. The agreement had incorrect figures, which has been agreed by them by upholding my complaint.

2. No new agreement was issues / or signed.

3. No correct default notice served.

4. Agreement was terminated whilst the account was in dispute. ( see point 1)

5. I have had no contact from Welcome to resolve this since the termination, until this court order.

[AndyOrch]

Excellent.....you have a papertrail of the complaint and dispute ?

 

Also " The Claimant complied with Section III and IV and Annex B of the PD Pre-Action Conduct. " is untrue ? " I have had no contact from Welcome to resolve this since the termination, until this court order."

[mtaylor819]

Yes I have the original letters from Welcome.

[AndyOrch]

Particulars of Claim(for reference)

 

1.The Claimant claims for the sums due under Fixed-Sum Loan Agreement(s) regulated by the Consumer Credit Act 1975

entered into between the Claimant and the Defendant.

 

2. The Defendant failed to pay the contractual instalments in compliance with the terms of the Agreement(s). The term of the Agreement(s) has expired.

 

3. The Claimant complied with Section III and IV and Annex B of the PD Pre-Action Conduct.

 

4. And the Claimant claims:

Hire Purchase Account number XXXXXX balance of 8,4745.44 as of 1/5/10.

interesticon under s69 of the county courticon Act 1984 at the rate of 8% a year from 1/5/10 to 4/11/13 of 2,383.34

and also interesticon at the same rate up to the date of judgement or earlier payment at a daily rate of 1.86 AND costs.

 

 

####Defence#####

 

1. Paragraph 1 is denied, an agreement was entered into with the claimant on xxx xxxxx xxxx which contained incorrect information/amounts.The claimant upheld my complaint but failed to to serve a fresh agreement containing the correct information.Therefore there is no current executed agreement regulated by the Consumer Credit Act 1975.

 

2. Paragraph 2 is denied for the above reasons therefore termination is invalid.

 

3. Paragraph 3 is denied.The claimant has not complied with Section III and IV and Annex B of the PD Pre-Action Conduct.The claimant has never made contact since my complaint was upheld and is misleading the court.

 

4.Paragraph 4 is denied for the aforesaid reasons.The Claimant has failed to serve any Notice of Sums in Arrears pursuant to the CCA2006 amendments and is prevented form adding further interest or enforcing any agreement until such time.

 

Therefore the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

(d) show how the agreement was breached and disclose a valid Default Notice that its Termination relies upon;

 

As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is

owed.

 

By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

 

What do you think to that?

 

Regards

 

Andy

[mtaylor819]

wow!!! Thank you !