Brothers Welcome/Hagarty Claimform - old Loan - now 3yrs later IND are lifting the stay by N244

[DonkeyB]

You may as well call Welcome and ask them directly when the last payment was made, when the account was defaulted, and when it was sold and who to.

[DonkeyB]

Yes, they’ll still have to respond, but that can take 40 days. They should respond to CPR, but usually don’t, at all, within any agreed timeframe.

 

Always worth a call – you have nowt to lose.

[DonkeyB]

it’s the oldest trick in the book. Accidentally don’t send the info to the defendant but swear blind you have. They have form for this – just look through the various IND threads, such as this one:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?390785-Welcome-Hegarty-LLP-Claim-Form-received-dated-07-05-13/page7

 

Again, no application was served. This is clearly their modus operandum. It seriously calls into question their original claim, which had a statement of truth they couldn’t possibly know to be true as it has taken them years to get any documents.

 

IND are nasty, so you need to make them follow due process carefully. In any response you make, you must point out their failings by stating categorically that no such copy application was received, and that previously they have failed to serve documents, only for them to mysteriously appear in witness statements.

 

One interesting point. They made the application in April, but their WS includes a document from two weeks ago? My, they can time travel... this may be useful, as the WS should have been served with the application, I think.

[DonkeyB]

I think we need to see the rest of their evidence – credit agreements, etc.

 

The PoC is here:

 

"The claimant claims for sums due under a/various Credi Agreement(s) related only to money regulated by the consumer crediticon Act 1974 entered into between the Claimant and the Defendant. The agreement(s) was/ were terminated upon the Defendant failure to comply with the terms of the Agreement(s). The claimant complied with Section III and IV of Annex B of the PD Pre-Action Conduct. And the Claimant Claims: Personal Loan Account number 1346183 balance of 4,417.23 as of 4/4/05. Interest under s69 of the county courticon Act 1984 at the rate of 8% a year from 4/4/05 to 30/5/12 of 581.77 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of 0.97 AND Costs."

 

To me, that suggests a route of termination which I imagine would need a default notice. They appear to be changing horses mid-stream and are now claiming arrears only. The claim makes no mention of arrears, only the balance. As they have not applied to change their PoC, then you can oppose the application and their WS on this basis. You can only defend what’s put in front of you.

[DonkeyB]

Apologies – my last post will mean little to those who haven’t seen their WS.

 

The claimant is now stating it only ever asked for arrears, and is only asking for arrears, and therefore a default notice is not required. The new witness statement is actually claiming the account was not terminated!

 

That’s not what the PoC says. That says they terminated the agreement. That requires a DN under section 87(1)(a) of the CCA.

[DonkeyB]

On the basis of what they have said, I think you should be applying for a strike out.

 

Would love to see all the documents...! The surveillance issue is worrying.

[DonkeyB]

Some of that looks like an admission of irresponsible lending.

 

EDIT: Comment on attachment & post now removed.

[DonkeyB]

Admin may have removed it as it contained tons of personal info.

[DonkeyB]

Maybe. Will look later when I have time — Andy needs to see it. Doc is prob too sensitive. But kills some of their evidence, possibly.

[DonkeyB]

A couple of things.

 

I mentioned their PoC stated the account was ‘terminated’. In their activity log (page 16 of the PDF), it states on 31 January 2012 the following:

 

Closure Code: 38

Closure Reason: Collections Process Exhausted

 

That seems to confirm the account was closed, and confirms my belief they are trying to pretend they’re only chasing ‘arrears’ as they never issued a DN.

 

Interestingly, their T&Cs say they will issue a DN if you fail to make payments – if they did not, they have not abided by their own T&Cs. I don’t think they’d like those T&Cs scrutinized. By their own admission, they have NOT followed the correct process when a customer defaults. You would be entitled to assume therefore that a DN had been issued to facilitate enforcement.

 

I’d love Andy’s views on this.

 

This was also their first activity since 29 September 2007 – a gap of over four years. The one page report seems to have been run on a different admin system. Interestingly, the far left column has a checkbox for whether the activity was ‘done’. There Ns, one Y. Odd.

 

Also, the dates in the PoC are wrong. I don’t know why they are using the date 4/4/05, as the balance they claim was from 13/4/07. The balance when the claim was issued was much greater, so their statement of truth was, as we say technically, b******s. This also makes the fake June notice of arrears a load of rubbish. They have selected a figure that simply matches their PoC – because they can’t really change that – yet their statement shows the current arrears to be £5,329. In other words, they have made up the arrears notice to fit their case. That is, in my view, an attempt to mislead the court.

 

Finally, couple of other ‘convenient’ bits.

 

In their statement of account, they have added three lots of court/solicitor charges. And rather than add the interest stated in the PoC as a normal charge, they have listed it as a ‘debit adjustment’. This is not transparent and very convenient. In short, their paperwork is made up. The fact that they have reduced the ‘statutory’ interest to keep the amounts under £5k does, in my view, render it non-statutory. *EDIT – they state they kept it under £5k to pay reduced court fees. So what? They make you pay them anyway, by adding to your balance, so it’s a false argument. Just shows they’re making it up as they go along, or they weren’t confident of their case. And why claim any statutory interest at all if the account was still live and in arrears? Oops...*

 

Next – they are claiming interest when they can’t. Their logs show that no statements were sent out, and therefore no notice of arrears were sent out. No statement – no interest.

 

Why did your relative not invoke the PPI when out of work?

 

Another worrying issue – though not useful in defence – are the case notes, where someone called ‘JM’ tells the collectors to contact you at work, write to you at work, contact neighbours, and threaten bailiffs – take that to the FCA...

 

JM also mentions in May 2005 that they are waiting for charge off. Oh dear. That implies closure was the intention.

 

Much of this just shows their incompetence, though.

 

What’s needed now is to get the facts into the right order for your opposing WS. personally I would base it on their PoC clearly stating the account was terminated, therefore a DN is necessary and the application/claim has no merit as they are trying to change their case mid-stream. Also query why it has taken three years to find this info, and therefore question their initial statement of truth.

 

All the other stuff I’ve mentioned is relatively trite.

[DonkeyB]

Note that the WS does not only ask for the stay to be lifted – it is also asking for judgment to be entered in their favour.

[DonkeyB]

It’s also worth responding para by para to their WS.

[DonkeyB]

Also suggest you check the figures on the loan – if they have charged interest on the acceptance fee, it may render the agreement unenforceable. Their WS was a bit quick to declare it totally enforceable. I think it should also actually state the total charge for credit, not just the APR and interest rate.

 

Need Andy’s input here.

[DonkeyB]

I think we also need to look at their timescales and get some case law. It’s sometimes OK for a claimant to issue a claim to stop the SB clock, if the case is properly inchoate (ie. begun but not fully formed), but I’m sure there’s case law that makes clear you can’t then pull your case together at leisure – it needs to be timely.

[DonkeyB]

It’s worth adding some background to their claim being for arrears.

 

It is true that if they had only claimed for arrears, then a default notice would not necessarily be required. Once the agreement has run its course (in this case that would be around September 2007, or 36 months after the agreement was taken out) then the agreement has ended, and any monies outstanding would be arrears, ie. all monies would be due, and there would be no attempt to get monies earlier than due which is what s87 is all about.

 

But that is not what they have claimed. Their proper course should have been to apply to alter their PoC, but I don’t see how they can realistically ask to do that three years down the line. I think it would be an abuse of process. Their PoC hangs them. That’s why it’s important to call them out on their original statement of truth. The PoC said ‘terminated’ and ‘closed’ because of failure to adhere to the T&Cs – not that it had run its natural cycle.

 

There’s some recent case law where judges have commented on the statement of truth and lack of clarity in claims – it’s not binding, but the judge might find it informative. I’ll see what I can dig out.

 

Get yer skates on!

[DonkeyB]

The PoC is in your very first post. I imagine you copied it from the claim form. I assume you still have the claim form somewhere? Just hope your transcript was accurate!

 

Great post Andy – as usual, saved me some work...

[DonkeyB]

Here you go – CCA Section 60 (1)

Form and content of agreements.

(1)

The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—

(a) the rights and duties conferred or imposed on him by the agreement,

(b) the amount and rate of the total charge for credit (in the case of a consumer credit agreement),

© the protection and remedies available to him under this Act, and

(d) any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.

My contention is that the agreement does not show the amount of charge for credit. It leaves you to work it out.

Does that make it unenforceable?

Do you know where it might be? I doubt you copied it inaccurately. Stick to what it says. Just state it as fact – the court will (should!) have a copy in the file.

[DonkeyB]

It should be in the case file that the court holds. The PoC is pretty critical – it should not have gone anywhere.

 

But, as it’s IND, call the court and check – in case IND have made any sneaky applications to amend.

[DonkeyB]

No probs.

 

Andy, what needs to be done with regard to file/serve of the defence/WS?

[DonkeyB]

No. In the Original PoC they say the account was terminated because if a failure to abide by the T&Cs. They can't backtrack on that, but are trying to.

 

They are now claiming it was not terminated due to a breach of the T&Cs because that would have required a DN — and they know they did not issue one. In other words, they have changed their story because the original PoC necessitated a DN.

 

They are fibbing to suit their available evidence.

[DonkeyB]

Hearing is in three days. Better get a move on and play the LiP card. They were also rather late sending their WS to support their app – and the OP did not receive a copy of the app in April – so I think there should be leeway.

[DonkeyB]

Indeed you did. IND are the devil’s own, so they need ‘special’ treatment.

[DonkeyB]

Think it’s Friday, Andy.

 

Need to add in to the WS something about the claimant sending correspondence to different addresses yet suddenly finding you near the court date.

[DonkeyB]

Is your paperwork in?

[DonkeyB]

I believe so, CB.