Welcome Finance - Secret Commission - No liability For Interest - Breach of Complaint Handling Rules

[cab1ne]

interesting thread and some very sound pointers wfs.

 

so in your opinion. for example

 

you aproach a dealer to buy a car,

fill in the paperwork,

dealer supplies the car and the creditor pays the bill,

you fall into problems 2 years later and default on the agreement,

creditor defaults and then terminates the agreement,

you send off a S.A.R,

the S.A.R discloses an underwritting sheet showing that the creditor has paid a commission to a company different to the dealer,

 

would that be a secret commission:confused:

 

cab

[frettful38]

Mercantile Credit v Hamblin [1965] 2 QB 242, 269:

 

 

"There is no rule of law that in a hire purchase transaction the dealer never is, or always is, acting as agent for the finance company or as agent for the customer… Nevertheless, the dealer is to some extent an intermediary between the customer and the finance company, and he may well have in a particular case some ad hoc agencies to do particular things on behalf of one or the other or, it may be, both of those two parties."

 

I would argue that CarLand was not the agent of Welcome Finance because Carland had no authority to make any decisions that were binding upon Welcome Finance and it certainly had no authority to enter into a contract on behalf of Welcome Finance. (agreement signed/executed by Welcome Finance.)

 

However, CarLand did approach Welcome Finance on my behalf, applied for credit from Welcome Finance on my behalf, it completed all the paperwork on my behalf and it was in possession of all the information from me to enable CarLand to complete said forms.

 

Any update wfs on how your getting on?

[Suetonius]

I say:

 

 

 

Welcome Finance say:

 

"We further note your new comments relating to the Provision of Statements, and the face that you have not received your annual statement from 13 September 2009. Having investigated the matter, we have established that a system error did occor which did in fact prevent your annual statement from being dispatched. We apologise for this but can confirm that your statement will be despatched within the next few working days.

 

Due to this error in despatching your statement, you are correct in that we are not entitled to enfore the agreement during non-compliance, However, this will be rectified by the sending of your annual statement. You are also correct when you state that 'a debtor is not liable to pay any interest calculated by reference to the period of non-compliance'.

 

Therefore in this respect I propose to make an adjustment of £219.08 to your account representing the interest applied to your Hire Purchase during the period from 13 September 2009 and 13 April 2010 (which allows for circa 10-14 days extra). The amount of £219.08 will therefore reduce the outstanding balance accordingly.

 

Should our resolution meet your approval, Please sign and return the attached acceptance form."

 

The more I read about Welcome Finance, the more concerned I become.

 

This is another clear example of Welcome Finance not making the required changes to comply with the 2006 amendments of the Consumer Credit Act.

 

Consumer Credit Act 2006 (c. 14)

 

(6) Where this subsection applies in relation to a failure to give a statement under this section to the debtor—

(a) the creditor shall not be entitled to enforce the agreement during the period of non-compliance;

(b) the debtor shall have no liability to pay any sum of interest to the extent calculated by reference to the period of non-compliance or to any part of it; and

[frettful38]

The more I read about Welcome Finance, the more concerned I become.

 

This is another clear example of Welcome Finance not making the required changes to comply with the 2006 amendments of the Consumer Credit Act.

 

Consumer Credit Act 2006 (c. 14)

 

(6) Where this subsection applies in relation to a failure to give a statement under this section to the debtor—

(a) the creditor shall not be entitled to enforce the agreement during the period of non-compliance;

(b) the debtor shall have no liability to pay any sum of interest to the extent calculated by reference to the period of non-compliance or to any part of it; and

 

 

Hi sue, does the (6) also apply for statements for un-regulated agreements. I would like to ask for a statement of account for my loan agreement which was taken out in Sept 07 and was over £25k?

 

I have solicitors working for me on a no win no fee but do not think they are good and I am currently deciding whether to instruct another firm. My solicitors had requested a statement of account amongst other things from my lender in Dec 09, but still have not heard anything.

 

I have with held the last two months installments as I need to know what I have been paying and how much is left. So does this rule apply to me as well and can I request this statement even though my agreement is un-regulated?

[Suetonius]

Hi sue, does the (6) also apply for statements for un-regulated agreements. I would like to ask for a statement of account for my loan agreement which was taken out in Sept 07 and was over £25k?

 

I have solicitors working for me on a no win no fee but do not think they are good and I am currently deciding whether to instruct another firm. My solicitors had requested a statement of account amongst other things from my lender in Dec 09, but still have not heard anything.

 

I have with held the last two months installments as I need to know what I have been paying and how much is left. So does this rule apply to me as well and can I request this statement even though my agreement is un-regulated?

 

Hello Fretful

 

I am sorry to say that it does not apply to unregulated loans.

 

77A Statements to be provided in relation to fixed-sum credit agreements

 

(1) The creditor under a regulated agreement for fixed-sum credit—

 

The best advice I can give to you is to start a thread. There are so many people here that have been through similar if not the same situation as you. Draw on their knowledge and experience. It can only benefit you.

 

You can still request a statement, to enable you to check your account. You can check to ensure all payments have been recorded correctly (amount and date of payment) and check what charges and fees have been applied to your account.

[frettful38]

Hello Fretful

 

I am sorry to say that it does not apply to unregulated loans.

 

77A Statements to be provided in relation to fixed-sum credit agreements

 

(1) The creditor under a regulated agreement for fixed-sum credit—

 

The best advice I can give to you is to start a thread. There are so many people here that have been through similar if not the same situation as you. Draw on their knowledge and experience. It can only benefit you.

 

Thanks sue again for your advice. I am just waiting on a few things before I start my own thread. They are very important plus I am waiting for the decision on the hearing on the 13th may 2010 in this case

 

The Supreme Court - Case details

[Suetonius]

Ok, I wish you the best of luck

[mrsiphone]

This could help you payback

 

Taken from Decembers Ruling by High Court ( Judge Waksman)

 

Secret Commissions

 

Ordinarily, the introducer or broker will be treated as an agent of the borrower. As such they owe a fiduciary duty to their client including the duty not to make a secret profit.

 

 

Provided that it is disclosed to the client, there is nothing wrong in principle in an intermediary charging a broker’s fee. However, the commission must be disclosed and a general statement that “a commission may be paid in certain circumstances” is not adequate.

 

 

The receipt of a secret commission by a broker is a species of fraud and is actionable both against the broker or introducer and the lender who paid the secret commission.

 

 

HI 42 man

 

I think quite a few did miss this ...it was in his ruling Carey v HSBC Bank.

 

sparkie

 

Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009)

 

I have read it a few times but couldn't see it myself.

[cab1ne]

i thought secret commissions were dealt with in

Wilson and Anor v Hurstanger Ltd

 

cab

[rightsforme]

Ok, confession time... I have previously made a school boy error and incorrectly spelt the email address of the person I have been contacting at Welcome Finance.

 

In response to my NOTICE OF RESCISSION, I recieved the following this morning:

 

From: xxxx xXXXXl [mailto:[email protected]]

Sent: 22 March 2010 10:19

To: xxxxxxxx

Subject: Re: Fwd: NOTICE OF RESCISSION

 

Mr xxxxxx

 

Thanks for your letter; the contents of which are noted. We will be in touch shortly with a response, if appropriate.

 

In your earlier correspondence, you express disappointment that I do not respond to your emails.

 

You mis-spell my name when you are addressing the email. The second vowel in my first name is an A not an E. Your emails have therefore not been reaching me directly.

 

Kind regards

 

 

xxxx xxxxx

Legal Compliance Manager

Cattles Group Risk and Compliance,

Mere Way, Ruddington Fields Business Park, Ruddington, NG11 6NZ

T: xxxx xxxxxx OR ext. xxxx M: xxxxxxx

E: xxxxxxx

Well he obviously still must have got the email even if not direct as otherwise he could not know that you had misspelt his name so why has he not responded before would be my question.

[enslaved]

Forgive my lack of knowledge.....

I am in the same boat 4 commissions paid without my knowledge, until I recieved SAR back.

 

I have used all the case law as above in my defence, but I keep looking at S55

55.

Disclosure of information.

— (1) Regulations may require specified information to be disclosed in the prescribed manner to the debtor or hirer before a regulated agreement is made.

 

(2) A regulated agreement is not properly executed unless regulations under subsection (1) were complied with before the making of the agreement.

 

I have posed the above question before..... Is it relevant to Secret Commissions?

 

What are the 'regulations'?

 

Sorry for butting in.

Edited April 19, 2010 by enslaved
typo

[wfspayback]

This could help you payback

 

 

 

 

 

Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009)

 

I have read it a few times but couldn't see it myself.

 

Thank you for that Mrsiphone. That extract is not from the Carey case. I have come across it before and it is actually from a Solicitors/Claim Management Company website.

[wfspayback]

Apologies to everyone due to a few personal events I had to drop the ball on this for a couple of weeks.

 

I would also like to thank everything that emailed me whilst I was away from here. Your support is very much appreciated.

 

I am back now though and it is time to continue.

 

First an update, I last sent this:

 

13 April 2010

Your Ref: COMP/xxxx

Account Number: xxxxx

 

Ms Margaret Young

Executive Chairman

Cattles Plc

Ruddington Fields Business Park

Ruddington

Nottingham

NG11 6NZ

 

Dear Ms Young

 

Further to Welcome Finance’s letter of 30 March 2010, I would like to take this opportunity to thank Mr John Bates (Head of Customer Complaints) and his staff for taking the time to respond to my concerns.

 

Provision of Statements

 

I have noted that Welcome Finance is prepared to concede that I was not liable to pay interest between September 2009 and April 2010 and that it has proposed to make an adjustment of £219.08 to my account.

 

I am left to presume that this adjustment of £219.08 will be a reduction to the capital balance of Hire Purchase agreement. However, Welcome Finance has not explained the implications of the adjustment with regard to the term of my agreement or with regard to my monthly payments.

 

I am not prepared to sign an acceptance form to accept this adjustment in full and final settlement of my complaint. Welcome Finance has confirmed that I was not (as per Consumer Credit Act 1974) liable to pay interest. Therefore, Welcome Finance must refund the interest that it was not entitled to charge.

 

I am afraid that I am unable to agree that an adjustment should be applied to my account. I consider that the interest incorrectly applied to my account, should be refunded to me. Welcome Finance has two options, it can either send me a cheque for £219.08 or it can refund me via the details it holds for my Direct Debit payments. Can you please confirm how and when this payment will be made.

 

If I do not receive this payment within the next 10 days, I will commence proceedings to recover the amount owed to me.

 

I will respond further with regard to secret commission in due course.

 

 

Kind Regards

[wfspayback]

10 days are up and shock horror surprise

 

Welcome have yet again not acknowledged or responded to me.

 

Unless they respond by close of business tomorrow, I will file the following claim:

 

IN THE xxxxxx COUNTY COURT CLAIM NO.

BETWEEN:

 

xxxxxxxx

Claimant

And

Welcome Financial Services Limited

(previously known as Progressive Financial Services Limited),

trading as Welcome Finance

Defendant

PARTICULARS OF CLAIM

1. The Claimant at all material times is a consumer borrower.

 

2. The Defendant was at all material times a lender engaged in the provision of finance facilities (“the Lender”).

 

3. By an agreement (“the Agreement”) in writing dated 26 September 2006 the Lender advanced to the Claimant a loan regulated by the Consumer Credit Act 1974 (“the Act”) for £5,995.00.

 

4. The Claimant asserts the Lender did not supply an annual statement as required by the Act until 1 April 2010.

 

5. The Claimant asserts pursuant to section 77A (1) of the Act the Lender is required to provide an annual statement of account. The Claimant asserts that the failure of the Lender to provide an annual statement is in breach of the Act.

 

6. The Claimant asserts pursuant to section77A (6b) of the Act, the Claimant shall have no liability to pay any sum of interest to the extent calculated by reference to the period of non-compliance or to any part of it. The Claimant asserts during the period of non-compliance the Lender negligently and unfairly applied interest under the Agreement.

 

7. By way of email dated 14 March 2010 the Claimant wrote to the Lender. The Claimant outlined his assertions of the Lenders breach of the Act.

 

8. By way of letter dated 30 March 2010 the Lender responded and confirmed that due to a “system error”, it was in breach of section 77A of the Act. The Lender proposed to apply an adjustment of £219.08 to the Claimant’s account.

 

9. By way of email dated 13 April 2010 the Claimant wrote to the Lender. The Claimant directed the Lender to refund the interest negligently applied, directly to the Claimant. The Defendant has not subsequently responded to the Claimant within the given ten day deadline.

 

10. The Claimant asserts pursuant to section 140 of the Act the Lender has abused and has taken unfair advantage of the Debtor – Creditor relationship created by the Agreement.

 

11. Further the Claimant is entitled to claim, and does claim interest pursuant to section 69 of the County Courts Act 1984 at an annual rate of 8% from 1 October 2009.

 

AND THE CLAIMANT CLAIMS

 

1. Repayment of interest applied to account, whilst the Lender was in breach of the Act.

2. Interest as set out in Paragraph 10.

3. Costs.

 

Statement of Truth

 

I believe that the facts set out in these Particulars are true.

 

Signed…….

 

FULL NAME: xxxxxxxx

 

Dated this 25 April 2010

 

Address for receiving documents:-

xxxxxxx

[wfspayback]

Well he obviously still must have got the email even if not direct as otherwise he could not know that you had misspelt his name so why has he not responded before would be my question.

 

I will give him the benefit of the doubt as I also emailed it to a few other people. I think one of the other people must have forwarded it onto to him.

[Suetonius]

Welcome back Wfspayback. We can all understand that other problems spring up from time to time.

 

I have read your POC's.. One thing you might want to amend is that interest is claimed as paragraph 11 and not 10...

 

Apart from that it is clear and straight to the point. It goes without saying, make sure you hold on to that admission from Welcome..

 

Good luck

[Suetonius]

Payback has gone quiet again.

 

Just wondering if you were aware of this:

 

Bribery Act 2010 (c. 23)

 

Explanatory Notes

Bribery Act 2010 (c. 23) - Explanatory Notes

 

 

Overview

Bribery Act 2010 - Ministry of Justice

[wfspayback]

Thanks Sue

 

Does anyone have a link to a HP agreement calculator, I need to check my account figures

 

Total Amount of Credit £5,995 + acceptance fee £195.00 (interest bearing)

Term: 48 Months

Interest Rate: 14%

 

Welcome say;

 

£3,468.88 interest

Monthly payment £201.31

[wannabedebtfreesoon]

Thanks Sue

 

Does anyone have a link to a HP agreement calculator, I need to check my account figures

 

Total Amount of Credit £5,995 + acceptance fee £195.00 (interest bearing)

Term: 48 Months

Interest Rate: 14%

 

Welcome say;

 

£3,468.88 interest

Monthly payment £201.31

Is the 14% the flat rate or the APR??

If it's flat rate then it's a relatively simple calculation;

Amount of credit x 14% x 4(years)

 

With and without the acceptance fee added on to the amount of credit, I still can't seem to get it to add up to what they've stated.

 

Without acceptance fee:-

5995 x 14% = 839.30

839.30 x 4 = 3357.20

 

With acceptance fee:-

(5995+195) x 14% = 866.60

866.60 x 4 = 3466.40

 

Was there anything else they could've added on??

 

P.S. If it's APR then you'll have to refer to an APR calculator.

[Suetonius]

Can you check to see if your post was a typo ??

 

If it was £5,999 + £195, I can get within 24p

[wfspayback]

Morning all

 

Yes sorry it is £5,999 + £195

 

I didn't explain myself very well, apologies.

 

What I am looking for is either a website or a excel spreadsheet that will give me a breakdown of payments and interest applied to my account.

 

Welcome have agreed to refund interest, they are just having problems working out the interest.

 

Anyone have anything that can give a breakdown ?

[sjmooro]

Welcome - please note additionally (as in an addition to a breach of duty) the payment of a secrect commission is considered to be a form of bribe and is treated as a special category of fraud

 

 

 

I am just about to go into battle with Welcome over the misselling of a loan, PPI and warranty insurance - Looks like it is going to be a long process!:-?

[beyondhope]

I am just about to go into battle with Welcome over the misselling of a loan, PPI and warranty insurance - Looks like it is going to be a long process!:-?

 

 

PPI claims seem to be going through fairly easily and quickly at the moment

[a_bx]

Hi wfspayback, has there been any progress on you claim with Welcome?

[frettful38]

Was there a THE END on this thread by the OP or is it still going?