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

[frettful38]

subbing

[wfspayback]

Oooooo they sound like they are running around like headless chickens after all! Awaiting sign off indeed!

 

I am hoping that the penny has dropped with them that I will take them to Court if necessary.

 

It isn't the first time I have taken a case to Court regarding Consumer Credit issues.

[wfspayback]

Good Morning Everyone

 

Guess what I received in the post today 1 April 2010....

 

An annual statement from Welcome Finance covering the period of statement 30 September 2008 to 13 September 2009.

 

This statement is very different to the one and only other statement that Welcome Finance sent to me on 16 February 2010.

 

Now this statement includes:

 

· The duration of the agreement and the amount of credit provided.

· The rate or rates of interest applicable, together with

- the period during which each rate applied

- if applicable, the element of the credit to which it applied

· The opening balance at the beginning of the period to which the statement relates

· The amount and date of any payment to the account during the period

· The amount and date of any interest or other charges falling due during the period

· The amount and date of any other movement in the account during the period

· The closing balance at the end of the period.

 

Certain prescribed forms of wording must also be included. These relate to:

 

· The consequences of paying less than the agreed sum

· Sources of help or advice if the debtor is having difficulties making payments

· The right to settle the agreement early

· The right to terminate a hire-purchase or conditional sale agreement

· Dispute resolution and complaints to the Financial Ombudsman Service (FOS).

 

Therefore, I am satisfied that this new statement is compliant with s.77(a) of the Consumer Credit Act 1974 (as amended 2006).

 

I am guessing that by sending me this statement, the guys at Welcome Finance are feeling a little happy with themselves and think that they have been able to overcome part of my complaint.

 

However :D:D:D:D

 

As I have previously informed Welcome Finance:

 

Consumer Credit Act 2006

 

Provision of Statements

 

The Hire Purchase statement I recently received was the first statement of account provided to me by Welcome Finance. As I am sure you will appreciate following the introduction and gradual implementation of the Consumer Credit Act 2006, I should have been provided with a statement of account no later than 1 October 2009.

 

I say this because from 1 October 2008, creditors will be required by section 77(a) of the 1974 Act, to provide debtors with annual statements in relation to regulated agreements for fixed-sum credit, such as loans and hire purchase.

 

For agreements made on or after 1 October 2008, the first statement must be given within a period of one year beginning on the day after the day the agreement is made. For pre-existing agreements, the first statement must be given within one year from 1 October 2008. Thereafter the creditor must give the debtor further statements at intervals of not more than one year, until there are no sums which are or may become payable under the agreement.

 

The statement that I received today, I should have been sent before 1 October 2009. This may not sound very important and so what if the statement is SIX or so months late.....

 

I refer Welcome Finance to back to s.77(a) of the Consumer Credit Act 1974 (as amended 2006), more specifically to:

 

(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

© the debtor shall have no liability to pay any default sum which (apart from this paragraph)—

(i) would have become payable during the period of non-compliance; or

(ii) would have become payable after the end of that period in connection with a breach of the agreement which occurs during that period (whether or not the breach continues after the end of that period).

 

"The debtor (me) shall have no liability to pay any sum of interest to the extent calculated by reference to the period of non compliance"

 

[wfspayback]

Back to business....

 

I have received the following response today:

 

 

 

-----Original Message-----

From: xxxx [mailto:[email protected]]

Sent: 29 March 2010 15:10

To: xxxx

Subject: Dear Mr xxxx

 

Dear Mr xxxx

 

Further to your email dated 28 March 2010, I can confirm that a response to all your points is currently awaiting sign off and you will receive correspondence within the next few working days.

 

Regards

 

 

 

 

xxxxx

Compliance Officer

Cattles Group Compliance

Tel: 0845 xxxxx

Fax: 0115 xxxxx

Ext: xxx

E-Mail: xxxxx

Postal Address:

Welcome Financial Services Ltd

Mere Way

Ruddington Fields Business Park

Ruddington

Nottingham

NG11 6NZ

 

 

 

Cattles plc Registered in England No: 133540

Kingston House, Centre 27 Business Park,

Woodhead Road, Birstall, Batley, WF179TD.

 

They have had a few business days

 

If I don't get an update email from them by close of business today, I will move onto the next stage. I want confirmation of when I will receive an actual response.

 

I was told that I would receive correspondence within a few business days... They have had a few business days..... A statement is not enough....

[wfspayback]

I sent an email to find out what was going on...

 

Received this response...

 

"I can confirm that the statements were sent automatically and a suggested resolution was placed in the post to you yesterday."

 

So lets see what the postie brings on Saturday...

[beyondhope]

I await with interest!

[wfspayback]

I await with interest!

 

My expectations aren't very high from what I have read on other threads.

 

So this may just be the start of the next chapter rather than the end of the story

[wfspayback]

.....Nothing in the post yesterday from Welcome.....

 

If there is nothing in the post Tuesday, I am going to go straight to the Court and file my claim.....

[paulwlton]

I've been doing a bit of research on this subject and it appears that the person selling the vehicle is an agent for the finance company therefore owes no fiduciary duty to the buyer.

[wfspayback]

I've been doing a bit of research on this subject and it appears that the person selling the vehicle is an agent for the finance company therefore owes no fiduciary duty to the buyer.

 

Good Morning Paul,

 

I have done a little bit of research on this subject too

 

To be honest what you said was very similar to the initial response from Welcome.. They considered it to be their get out of jail for free card..

 

However, in my own personal opinion Hurstanger does not only apply to breaches of a fiduciary duty.

 

 

 

· Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299

 

“39. Obviously if there has been no disclosure the agent will have received a secret commission. This is a blatant breach of his fiduciary duty but additionally the payment or receipt of a secret commission is considered to be a form of bribe and is treated by the authorities as a special category of fraud in which it is unnecessary to prove motive, inducement or loss up to the amount of the bribe.

 

"This is a blatant breach of his fiduciary duty but additionally the payment or receipt of a secret commission is considered to be a form of bribe and is treated by the authorities as a special category of fraud."

 

The keywords for me are 'but additionally'. I would argue that in the context of that paragraph this meant in addition to a breach of a fiduciary duty.

 

Therefore, it is my argument that if a secrect commission has been paid it is paramount to fraud.

 

According to Mr Justice Slade in Industries & General Mortgage Co Ltd v Lewis [1949] 2 All ER 573, for the purposes of the civil law a bribe means the payment of a secret commission, which only means

· that the person making the payment makes it to the agent of the other person with whom he is dealing;

· that he makes it to that person knowing that that person is acting as the agent of the other person with whom he is dealing; and

· that he fails to disclose to the other person with whom he is dealing that he has made that payment to the person whom he knows to be the other person's agent.

 

On the basis that a commission payment was made by Welcome Finance to Carland, I am satisfied was a secret commission and can be classed as a payment of bribe and therefore fraud (my own personal opinion)

 

· In Daraydan Holdings Ltd v Solland International Ltd [2004] EWHC 622 (Ch), Mr Justice Collins stated that in proceedings against the payer of the bribe there is no need for the principal to prove that the payer of the bribe acted with a corrupt motive.

 

The above (and other cases) confirms that Welcome Finance by making such a payment is automatically considered to have had a corrupt motive.

 

In Ross River Ltd v Cambridge City Football Club Ltd, Mr Justice Briggs stated that where a contract ensues following a secret payment received by a party's agent, the principal is entitled to rescission if he neither knew nor consented to the payment. If he knew of it, but did not give his informed consent, the court may award rescission as a discretionary remedy, if it is just and proportionate to do so.

 

 

· Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299

 

The principal has alternative remedies against both the briber and the agent for money had and received where he can recover the amount of the bribe or for damages for fraud where he can recover the amount of any actual loss sustained by entering into the transaction in respect of which the bribe was given. (Mahesan v Malaya's Housing Society [1979] AC374, 383).

 

Furthermore the transaction is voidable at the election of the principal who can rescind it provided counter-restitution can be made. (Panama & South Pacific Telegraph Co. v India Rubber, Gutta Percha, and Telegraph Co. [1875] 9 Ch App 515, 527, 532-3).”

 

Sir Owen Dixon summarised in McDonald v Dennys Lacelles Limited that when a contract is rescinded because of matters which affect its formation, as in the case of fraud, the parties are to be rehabilitated and restored, so far as may be, to the position they occupied before the contract was made (Termination Ab Initio).

 

The above extracts, especially Sir Owen Dixon confirm (in my own view) that in the case of payment of a secret commission (bribe = fraud) there is a case to argue for the rescission of the actual contract.

 

Rescission is a remedy in equity which aims to set aside transactions and order the payment of money so as to place parties in a dispute in the position they would have been in before any transaction between them had been entered into. Under the laws of England, this equitable remedy is available only when Restitutio in Integrum is possible Restitutio in Integrum is the process of putting parties in the position they would have been in, if the transaction in question never took place.

 

Restitutio in Integrum requires Welcome Finance to pay me the difference between the amount I borrowed and the amount I have repaid. This would enable both parties to be rehabilitated and restored, so far as may be, to the position they occupied before the contract was made. Therefore, both parties would be fairly put in the position they would have been in, if the transaction in question never took place.

 

I have given consideration to the possibility that the Court may decide differently to my understanding of the above cases. Therefore, I have a plan B:D

 

I would argue (and this is detailed within my particulars of claim) that the payment of a commission by Welcome Finance, was actually paid by me within the amount I borrowed without my knowledge or consent and that this created an unfair relation ship.

 

As per:

140B Powers of court in relation to unfair relationships

 

(1) An order under this section in connection with a credit agreement may do one or more of the following—

(a) require the creditor, or any associate or former associate of his, to repay (in whole or in part) any sum paid by the debtor or by a surety by virtue of the agreement or any related agreement (whether paid to the creditor, the associate or the former associate or to any other person);

 

And.....

 

(9) If, in any such proceedings, the debtor or a surety alleges that the relationship between the creditor and the debtor is unfair to the debtor, it is for the creditor to prove to the contrary.

 

Furthermore the provisions of sections 140A to 140D of the Consumer Credit Act 1974, which were introduced by the Consumer Credit Act 2006 empower the courts to make a wide range of orders if it finds that the relationship between the creditor and the debtor arising out of the credit agreement is unfair to the debtor. The relationship may be unfair because of the way in which the creditor has exercised or enforced any of its rights or anything else done by or on behalf of the creditor whether beforeor after the making of the agreement or any related agreement. The courts powers in relation to unfair relationships are very wide and discretionary.

 

It would be down to Welcome Finance as the creditor to prove to the contrary.

 

Plan B has already been tried successfully in Court.

 

http://news.bbc.co.uk/1/hi/8282264.stm

 

"Judge Smart agreed with the argument of Mrs Thorius's barrister, Paul Brant, that this "secret" commission meant the credit card deal was unfair and therefore in breach of the Consumer Credit Act."

 

 

If plan A fails, I have plan B to fall back on. I am also currently working on plan C:cool:

[paulwlton]

Good Morning Paul,

 

I have done a little bit of research on this subject too

 

To be honest what you said was very similar to the initial response from Welcome.. They considered it to be their get out of jail for free card..

 

However, in my own personal opinion Hurstanger does not only apply to breaches of a fiduciary duty.

 

 

 

 

 

"This is a blatant breach of his fiduciary duty but additionally the payment or receipt of a secret commission is considered to be a form of bribe and is treated by the authorities as a special category of fraud."

 

The keywords for me are 'but additionally'. I would argue that in the context of that paragraph this meant in addition to a breach of a fiduciary duty.

 

Therefore, it is my argument that if a secrect commission has been paid it is paramount to fraud.

 

 

 

On the basis that a commission payment was made by Welcome Finance to Carland, I am satisfied was a secret commission and can be classed as a payment of bribe and therefore fraud (my own personal opinion)

 

 

 

The above (and other cases) confirms that Welcome Finance by making such a payment is automatically considered to have had a corrupt motive.

 

 

 

 

 

 

 

The above extracts, especially Sir Owen Dixon confirm (in my own view) that in the case of payment of a secret commission (bribe = fraud) there is a case to argue for the rescission of the actual contract.

 

 

 

I have given consideration to the possibility that the Court may decide differently to my understanding of the above cases. Therefore, I have a plan B:D

 

I would argue (and this is detailed within my particulars of claim) that the payment of a commission by Welcome Finance, was actually paid by me within the amount I borrowed without my knowledge or consent and that this created an unfair relation ship.

 

As per:

 

 

 

 

It would be down to Welcome Finance as the creditor to prove to the contrary.

 

Plan B has already been tried successfully in Court.

 

BBC NEWS | Business | Court lets woman off £8,000 loan

 

"Judge Smart agreed with the argument of Mrs Thorius's barrister, Paul Brant, that this "secret" commission meant the credit card deal was unfair and therefore in breach of the Consumer Credit Act."

 

 

If plan A fails, I have plan B to fall back on. I am also currently working on plan C:cool:

 

Interesting! - I need to read up on this as I've recently discovered the same.

 

Paul

[wfspayback]

Interesting! - I need to read up on this as I've recently discovered the same.

 

Paul

 

Hello Paul,

 

It is heavy going but the following may be helpful

 

Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007)

 

"additionally the payment or receipt of a secret commission is considered to be a form of bribe and is treated in the authorities as a special category of fraud in which it is unnecessary to prove motive, inducement or loss up to the amount of the bribe."

Daraydan Holdings Ltd & Ors v Solland International Ltd & Ors [2004] EWHC 622 (Ch) (26 March 2004)

 

In Daraydan Holdings Ltd v Solland International Ltd, Mr Justice Collins stated that in proceedings against the payer of the bribe there is no need for the principal to prove that the principal suffered any loss or that the transaction was in some way unfair or that the bribe was given specifically in connection with a particular contract, since a bribe may also be given to an agent to influence his mind in favour of the payer generally (eg in connection with the granting of future contracts)

Ross River Ltd & Anor v Cambridge City Football Club Ltd [2007] EWHC 2115 (Ch) (19 September 2007)

 

In Ross River Ltd v Cambridge City Football Club Ltd, Mr Justice Briggs stated that where a contract ensues following a secret payment received by a party's agent, the principal is entitled to rescission if he neither knew nor consented to the payment. If he knew of it, but did not give his informed consent, the court may award rescission as a discretionary remedy, if it is just and proportionate to do so.

 

McDonald v Dennys Lascelles Limited [1933] HCA 25; (1933) 48 CLR 457 (15 May 1933) (An Australian case but quotable precedence)

 

Sir Owen Dixon summarised in McDonald v Dennys Lascelles Limited that when a contract is rescinded because of matters which affect its formation, as in the case of fraud, the parties are to be rehabilitated and restored, so far as may be, to the position they occupied before the contract was made.

 

Sir Owen Dixon

 

Panama & South Pacific Telegraph Co v India Rubber, Gutta Percher and Telegraph Co [1875] 9 Ch App 515, 527, 532-3

 

the transaction is voidable at the election of the principal who can rescind it

 

Mahesan v Malaya’s Housing Society [1979] AC 374, 383

 

The principal has alternative remedies against both the briber and the agent for the money had and received where he can recover the amount of the bribe or for the damages for fraud where he can recover the amount of any actual loss sustained by entering into the transaction in respect of which the bribe was given

Misrepresentation Act 1967

 

"2 Damages for misrepresentation

 

(1)Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made the facts represented were true. "

 

Misrepresentation in English law is an area of English contract law, which allows a person to escape a contractual obligation or claim compensation for losses. If one person can show that she entered an agreement because of another person's false assurances, then the other person will be unable to enforce the agreement against her, and may have to pay her damages. A misrepresentation can be an outright lie (fraud), an unintentional but careless falsehood (negligence), or an innocent slip of the tongue.

 

In most cases English law allows escape from the bargain when a misrepresentation was made, because it holds that people should only assume contractual obligations when they have given their true consent.

 

When a misrepresentation has been made and an agreement was (or at any rate appeared to be) concluded, the misrepresentee (the one told the lie, falsehood, etc) does not have to bring a halt to the deal. Misrepresentations generally do not render a contract void, as does the contractual doctrine of common mistake or frustration. It merely means that a contract will be voidable at the option of the misrepresentee. This is because not all contracts entered into on the strength of misrepresentations will always be bad, and it is thought more just to give the wronged party the choice about how to proceed.

Remedies are partly regulated by the Misrepresentation Act 1967. English law generally allows a contract to be unwound, so that both parties are put back into the position before the agreement was made.

[mrsiphone]

I've been doing a bit of research on this subject and it appears that the person selling the vehicle is an agent for the finance company therefore owes no fiduciary duty to the buyer.

 

Reading the Daraydan case:

 

@ 56

 

In Reading v R [1949] 2 KB 232, at 236, Asquith LJ said that there is a fiduciary relationship whenever the plaintiff entrusts a job to be performed, for instance the negotiation of a contract, and relies on the defendant to procure for the plaintiff the best terms available

 

 

Maybe the salesman acted as your agent and a fiduciary relationship did exist between you and the salesman.

[paulwlton]

Reading the Daraydan case:

 

@ 56

 

In Reading v R [1949] 2 KB 232, at 236, Asquith LJ said that there is a fiduciary relationship whenever the plaintiff entrusts a job to be performed, for instance the negotiation of a contract, and relies on the defendant to procure for the plaintiff the best terms available

 

 

Maybe the salesman acted as your agent and a fiduciary relationship did exist between you and the salesman.

 

According to the OFT the salesman is the finance company's agent.

[mrsiphone]

Do you have a weblink to that Paul

 

Seems a little strange, surely the credit broker approached the lender, applied for credit, submitted the paper work etc on your behalf

[paulwlton]

Do you have a weblink to that Paul

 

Seems a little strange, surely the credit broker approached the lender, applied for credit, submitted the paper work etc on your behalf

 

Section 56 CCA 1974 applies.

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft303.pdf

[mrsiphone]

I would have to disagree that the reference to agent within that document has the same meaning as agent in the context of the Law of Agency.

 

That document was clearly produced with reference to the legal rights and responsibilities created by a Debtor-Creditor-Supplier realtionship. This relationship is required to make any claims under S.75 of the CCA.

 

It does not look to me that payback is bringing claim under the CCA, even though S.75 does cover misrepresentation.

 

He/she loos to rely upon the Misrepresentation act.

 

It is not the Debtor-Creditor-Supplier relationship that is important, it is the Principle-Agent-Third Party relationship.

 

When you apply for finance with CarLand and similar dealers, they submit your details to a number of different lenders. This is evidenced by credit searched on your credit file.

 

So the question should be, is the agent actually working for two principles. You give the broker your instruction to apply for finance on your behalf, creating the principle-agent relationship.

 

This would be different when compared to main car dealers (i.e Peugeot) as they are tied to one Lender.

[mrsiphone]

Then again this is somewhat pointless as payback is not using this argument

[wfspayback]

Good Morning Everyone...

 

Well the postman has been and gone..

 

I now have the response from Welcome.. I will post further details later...

 

Basically they are not upholding my complaint with regard to secret commission but they are upholding my complaint with regard to the provision of statements and they are prepared to refund interest..

[wfspayback]

I say:

 

Summary of Claim

 

On 12 September 2006, I purchased a Ford Focus, registration xxxxx from Concept Automotive Services Limited, company registration number: 2715908, trading as CarLand. CarLand was at all material times a Licensed Credit Broker (Consumer Credit Licence Number: 0344449).

 

I contend that in its role as a licenced credit broker CarLand, acted as an agent for Welcome Financial Services Limited (previously known as Progressive Financial Services Limited), company registration number: 133540, trading as Welcome Finance. Welcome Finance is and has been at all material times a provider of consumer credit finance (Consumer Credit Licence Number: 0020708). It is my understanding that Welcome Finance was one of a number of different financial institutions that formed CarLand’s panel of financial providers.

 

It is my contention that commission was in fact paid to CarLand by Welcome Finance, which as I understand as you do not keep records are unable to refute. As I had not been informed that any commission would be paid by Welcome Finance to CarLand, I conclude that any such payment would be classed as “secret commission”. Hurstanger confirms that the payment or receipt of a secret commission is considered to be a form of bribe and is treated by the authorities as a special category of fraud in which it is unnecessary to prove motive, inducement or loss up to the amount of the bribe.

 

 

Mahesan v Malaya's Housing Society [1979] AC374, 383, confirms that I can recover the amount of the ,bribe or for damages for fraud where he can recover the amount of any actual loss sustained by entering into the transaction in respect of which the bribe was given.

 

Rescission of Agreement

 

Hurstanger clearly confirms that the payment of commission by Welcome Finance to CarLand is treated as a special category of fraud.Sir Owen Dixon summarised in McDonald v Dennys Lascelles Limited that when a contract is rescinded because of matters which affect its formation, as in the case of fraud, the parties are to be rehabilitated and restored, so far as may be, to the position they occupied before the contract was made (Termination Ab Initio).

 

Rescission is a remedy in equity which aims to set aside transactions and order the payment of money so as to place parties in a dispute in the position they would have been in before any transaction between them had been entered into.

 

Under the laws of England, this equitable remedy is available only when Restitutio in Integrum is possible Restitutio in Integrum is the process of putting parties in the position they would have been in, if the transaction in question never took place.

 

Welcome Finance say:

 

"We have noted your comments regarding the allegedly undisclosed commission payment, whichm you purport, was made during the course of applying for finance. We further note your reliance on Wilson and another v Hurstanger Limited.

 

As explained, we assert that Hurstanger is not intended to be so liberally applied. Only relationships between brokers and lender which are properly characterised as fiduciary agencies are affected by the decision in Hurtstanger. There is no evidence to support your assertion that a fiduciary relationship exisits between you and us (I never asserted that one did).

It is wholly denied that such a fiduciary relationship arose. Subsequently, any claim for secret commission must fail."

[wfspayback]

I say:

 

Consumer Credit Act 2006

 

Provision of Statements

 

The Hire Purchase statement I recently received was the first statement of account provided to me by Welcome Finance. As I am sure you will appreciate following the introduction and gradual implementation of the Consumer Credit Act 2006, I should have been provided with a statement of account no later than 1 October 2009.

 

I say this because from 1 October 2008, creditors will be required by section 77(a) of the 1974 Act, to provide debtors with annual statements in relation to regulated agreements for fixed-sum credit, such as loans and hire purchase.

 

For agreements made on or after 1 October 2008, the first statement must be given within a period of one year beginning on the day after the day the agreement is made. For pre-existing agreements, the first statement must be given within one year from 1 October 2008. Thereafter the creditor must give the debtor further statements at intervals of not more than one year, until there are no sums which are or may become payable under the agreement.

 

Content of Statements

 

The 2007 Regulations specify the information to be included in statements for fixed-sum credit agreements. In particular:

 

· The duration of the agreement and the amount of credit provided.

· The rate or rates of interest applicable, together with

- the period during which each rate applied

- if applicable, the element of the credit to which it applied

· The opening balance at the beginning of the period to which the statement relates

· The amount and date of any payment to the account during the period

· The amount and date of any interest or other charges falling due during the period

· The amount and date of any other movement in the account during the period

· The closing balance at the end of the period.

 

Certain prescribed forms of wording must also be included. These relate to:

 

· The consequences of paying less than the agreed sum

· Sources of help or advice if the debtor is having difficulties making payments

· The right to settle the agreement early

· The right to terminate a hire-purchase or conditional sale agreement

· Dispute resolution and complaints to the Financial Ombudsman Service (FOS).

 

Breach of the Act or Regulations

 

For reasons that are self-explanatory, I do not consider that Welcome Finance provided a statement of account before 1 October 2009 and that the statement recently provided does not comply with all the statutory requirements as detailed above.

 

If a creditor does not give the debtor an annual statement in respect of a fixed-sum credit agreement when he is required to do so, then he is not entitled to enforce the agreement during the period of non-compliance. In addition, the debtor is not liable to pay any interest calculated by reference to the period of non-compliance

 

In addition, the OFT and Local Authority Trading Standards Services have powers under Part 8 of the Enterprise Act 2002 to take enforcement action where there is a breach of legislation which harms the collective interests of consumers. Enforcement action may also be taken where appropriate under the Consumer Protection from Unfair Trading Regulations 2008.Breach of the requirements may also reflect on fitness to hold a consumer credit licence under the credit licensing regime.

 

Therefore, I conclude that from 1 October 2009 until such a time that Welcome Finance provides a statement of account that is fully compliant with the Consumer Credit Act 2006 it is unable to hold me liable for interest calculated by reference to the period of non-compliance.

 

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."

[wfspayback]

So some progress has been made. I will give careful consideration to the resolution proposed by Welcome Finance.

 

However, at the same time I will bear in mind that the suggested resolution is only an offer to refund interest that I am not liable for.

 

The requirement to sign the acceptance form is pointless as Welcome Finance confirm that I was not liable to pay interest. If I decline the suggested settlement, they still have to refund the interest

[wfspayback]

According to the OFT the salesman is the finance company's agent.

 

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.

Edited April 6, 2010 by wfspayback

[essexboy]

hi

 

i hope they used rule 78 to calculate the interest they will refund you as the seem to apply rule 78 in caculating their settlement figures. lol

 

essexboy

[jackpot7]

hi john

 

i totally agree in what you are saying

 

i have doccments and underwriting sheets headed

 

WELCOME ELITE BROKERS

 

THAT WILL SATISFY ANY JUDGE

 

ANYBODY NEEDS THESE DOCUMENTS TO SUPORT THERE CASE, JUST SHOUT

 

IT PROOVES WELCOME DO INFACT PAY THEMSELF A SECRET COMMISSION AND WORK IT BACK INTO THE AGREEMENT FOR WHICH THE DEBTOR ENDS UP PAYING FOR

Hi

Wouls it be possible for me to obtain a copies your forms.

Would be most appreciated

 

Regards

 

Jackpot7