welcome/ind claimform - now at WS stage

[beady]

I will get their witness statement up now andyorch.

 

 

Obiter, I have just check the payment schedule and there is an debit for Emergency Recovery of £205 aswell as a debit of £245 marked "adjustment"

 

 

Will this be arepo fee? Even though it wasn't repo'd?

[obiter dictum]

Knowing welcome as i do, they will include a repo fee

 

The adjustment will probably be the repo fee

 

I am sure as well the option to purchase fee cannot have interest charged against it in the total charge for credit as well, so APR misstated

[beady]

I called it a Hire Purchase Agreement as where I have signed, it says "This is a Hire Purchase Agreement Regulated by the Consumer Credit Act" (?)

[beady]

Claimants Witness Statement as requested

[obiter dictum]

Now this is where it gets interesting

 

They have included reposession rights and 50% paid etc

 

That will come under the Consumer Credit Act with a hire purchase agreement. Section 90, 91, 92, CCA 1974

 

Credit Agreements are regulated by the Consumer Credit Act 1974, Hire purchase agreements are regulated by the Hire Purchase Act 1967

 

They have used the wrong agreement to finance the car. and using the CCA 1974 to enforce when it is not a Hire Purchase agreement regulated by the Hire Purchase Act 1967, but a credit agreement under the CCA 1974

 

THAT NEEDS TO BE CONFIRMED THOUGH AS IT IS JUST MY OWN OPINION

Edited October 19, 2015 by obiter dictum

[obiter dictum]

Under the Consumer Contract Regulations the type of finance agreement has to be headed at the top of the agreement.

 

Besides HP or credit agreement, it could say "Fixed Sum Loan Agreement" as an example

 

The agreement at the top states

 

"CREDIT AGREEMENT" regulated by the CCA 1974

 

What is states at the very bottom of the agreement means squat and any reference to HP

[obiter dictum]

We really do need to see IND Witness statement to continue and advise

 

Can you post it up

 

Time is running out fast

[beady]

So can I say anything about this in my witness statement , I have to get it in by 4pm today

[AndyOrch]

Many thanks for the WS

 

Was your defence the standard Stat Barred defence as used frequently on this forum?

 

Andy

[beady]

Obiter, I have uploaded IND Witness Statement, see my post at 10.33am today

[beady]

Hello Andy, my defence was statute barred (which I don't think will get anywhere as they have a payment list showing this isn't correct), I also said that the goods detailed on the agreement were returned within 1 week and although another vehicle was sourced, I did not sign another agreement. So the agreement that they are trying to enforce shows a vehicle that they took back.

 

 

Another interesting spin which is probably irrelevant and another thread altogether, the payments were coming from an ex partners bank account. The copy of the direct debit form they have provided has the account number and sort code on but has my name as the account holder which is incorrect, & my signature for authorisation.

[obiter dictum]

Point 5 to begin with on the witness statement

 

THE AGREEMENT IS REFERRED TO AS A "HIRE PURCHASE" AGREEMENT

 

it is a Credit agreement regulated by the CCA 1974

[The Mould]

Hi

 

 

The reality of your case is that although you returned the original vehicle promptly, the Claimant provided you with another vehicle, you used it and had the benefit of it and continued to make regular repayments, in law this means that both you and the Claimant affirmed the contract and therefore unless you can produce evidence in Court to show that last payment was 6 years before the Claimant issued proceedings, which will mean his claim is time barred, I believe that you may struggle to defeat his claim.

 

 

Details under the contract such as colour of the vehicle are less than minor and so the Court will not view such argument as valid.

 

 

Kind regards

 

 

The Mould

[AndyOrch]

I really need to see your defence verbatim ....beady...have you retained a copy?

[obiter dictum]

Andy

 

To amend the defence will not an N244 application be needed to ask permission??

[AndyOrch]

Andy

 

To amend the defence will not an N244 application be needed to ask permission??

 

There is no need or time to amend the defence...it can be addressed in the witness statement OD

[beady]

I think it was done online, I have a GG number & MCOL number written on paper copy of claim form and I have my handwritten notes which are shown below but are not great as I didn't know, without sight of the agreement whether they were claiming for the car finance or the personal loan that I had with them at a later date.

 

 

Any debt with Welcome Finance is now statute barred.

 

 

No credit agreement in force. Originally had hire purchase agreement on a vehicle which was returned within 14days as it was not road worthy, contract cancelled. Another vehicle was provided but no new hire purchase agreement was produced for me to sign.

 

 

Personal loan taken out with Welcome finance in April 2006, again, now statute barred although on my credit report this is shown as settled and Welcome Finance have then made a new entry for a new loan dated 30.03.2007. This is not correct, I only ever had one hire purchase and one personal loan, neither of them starting in 2007.

 

 

Can Welcome Finance provide me with the credit agreement and proof of last payment?

 

 

I am claiming that as no payment or contact has been made to Welcome Finance in the last 6 yrs, any outstanding debt is now statute barred.

 

 

As I do not know whether the amount of £4683 relates to the hire purchase or the personal loan, I an claiming that if it is for

 

 

a) Hire Purchase - There was no new agreement signed on the new vehicle and the original contact was cancelled when the original vehicle was returned.

 

 

b) Personal loan - This was taken out in April 2006 & not August 2007. No payment or contact made in the last 6yrs so now statute barred.

[AndyOrch]

Okay had time to digest the contents.....

 

Your witness statement in response must be of the same format as the claimants....you simply go through each point they have raised and counter or agree or expand to the reasoning why it is not accepted.

 

It is really a fully particularised version of your defence.....you will have to retract the statute barred content entirely if you can not deny that the point was falsely raised within your defence.

 

At the end of the day the claim relies on the agreement...the balance of probabilities and the the overriding objective......but at point 14 they clearly state and agree that the agreement was terminated and yet then go on to state that the agreement continued.I would have thought that a fresh agreement would be required in view of the circumstances that happened...one that contains the correct registration and details and payment terms....but you will have to see how the court respond to that.

 

Have a go at drafting a response and I will look in shortly so you can get it emailed to court/claimant...does it actually state in the Notice of Allocation that you must exchange by 4.00pm?

 

Regards

 

Andy

[beady]

Hi Andy,

 

 

Yes, it does state 4pm on notice of allocation. I will get started now. Can I mention Obiter's points about wrong type of agreement used? ie. whether it is actually a credit agreement of a hire purchase agreement

[AndyOrch]

Well it clearly states its an HP agreement near the signature box...but if you feel its misleading then yes refer to it and then let them mull it over....don't actually state the faults ...just that its not valid or misleading or not pursuant to the CCA1974.

[dx100uk]

silly question I know

 

 

but does the agreement number of the agreement they have sent match the one in the POC?

 

 

dx

[beady]

I can't see an agreement number on the actual agreement ??

[beady]

Should there be an agreement number on the agreement that I signed?

[AndyOrch]

Me neither so you refute that under the paragraph that they refer to it as an exhibit.

[beady]

thank you