Welcome Finance PPI and Mr Z ** SUCCESSFUL OUTCOME **

[MrZ]

Thats fantastic. Thanks!

 

The fourteen days is what the court advised. They said 14 days from the date of issue to serve the POC. I was also reading practice directions part 16 and it states the same. Allowing for post that means I have to send the POC no later than the 30th of June.

 

I am now trying to write a draft that includes the issue of the MIF and charges, without being so specific as to tie my hands to a particular argument. This is why I was thinking along the lines of the misrepresentation and unfair terms. It seems to me these arguments would be valid regardless of what if anything is sent in response to the CPR request.

 

What do you think?

 

EDIT:

Did you perhaps miss the post where I stated the claim form has already been issued? I submited the form without the POC attached, electing instead to send the POC after issue. Hope I havent confused things.

Edited June 23, 2011 by MrZ

[postggj]

many thanks for dropping in stephen:wink:

[steven4064]

In that case, you do exactly as above but change CPR 31.16 to CPR 18 and change "in a proposed action" to "Claim No: xxxxxxx"

 

Having said that, an alternative (and to my mind, better) approach would be to amend the N244 CPR 1.16 application to include a stay whilst the CPR 31.16 application is dealt with by the court. You could say this "best serves the overriding objective by ensuring that the case is dealt with expeditiously and fairly " Ring the court and ask them the best way to proceed - explain that you really need to see this document (which you know exists) to fully make your case.

[MrZ]

In that case, you do exactly as above but change CPR 31.16 to CPR 18 and change "in a proposed action" to "Claim No: xxxxxxx"

 

Having said that, an alternative (and to my mind, better) approach would be to amend the N244 CPR 1.16 application to include a stay whilst the CPR 31.16 application is dealt with by the court. You could say this "best serves the overriding objective by ensuring that the case is dealt with expeditiously and fairly " Ring the court and ask them the best way to proceed - explain that you really need to see this document (which you know exists) to fully make your case.

 

Ok, so just to be sure I understand correctly, and provided the court doesnt suggest a different course, I would keep the request as a 31.16 request, but add a paragraph that requests the (n1)claim be stayed pending the outcome of the (n244) application?

[steven4064]

Yep

[MrZ]

As I am now getting out of the realm of preparing g my claim and moving toward preparing my case and arguments, I am finding I have a few questions about the process and technical details.

 

My first question is, Do I have to include in my POC or any other document detailing any case law I am depending on? I have been doing tons of research in the statutes, regulations and what I think are relevant cases. How much of the legislation and case law do I have to include. I have seen some very basic particulars, and then I have seen others that go into alot of detail. I am curious to know if there is a require or if it is optional. If its optional for the particulars, does it ever become a requirement?

[postggj]

some basic case law is needed but a witness statement later on can be used to go into greater detail

 

its not so much case law at this stage but

 

statute legislation on which you will rely on

[MrZ]

some basic case law is needed but a witness statement later on can be used to go into greater detail

 

its not so much case law at this stage but

 

statute legislation on which you will rely on

 

Thanks for that post,

 

Another reason for the question is in regard to strategy. Obviously there are certain pros and cons for making your position and argument clear, and just as many for trying to keep things to a minimum. Is it safe to assume that basic statute to form the basis of a claim is enough for the POC, and other arguments can be optionally included as part of the witness statement?

Edited June 24, 2011 by MrZ

[postggj]

Correct:-)

[MrZ]

Another question. How relevent are decisions made in a County court? Assuming the decision is not a matter of appeal, how much weight does it carry if any? I have been veiwing some recent county court summaries and some seem very relevent to many of my same arguments.

[postggj]

A judgement in the county court does not become cae law as such

 

its only in the court of appeal and above that judgements become case law for which the lower courts have to abide

 

saying that though

 

you can quote county court case numbers and decisions in any witness statement to back up your case for which the judge will take notice

 

i have just recently had a field day with dvla

 

i had a summons ref failure to send back the v5

 

in my witness statement i included both magistrate and county court case numbers to back up my case

 

dvla ran a mile,

 

it will do no harm and will show the judge you have done your reserch

[MrZ]

Thanks again post,

 

That answers my question.

 

I think I am going into far too much detail in my POC and need to reserve a portion of the current content for my witness statement. I have the admission after all of mis sale of insurance which will form the basis of my claim. The other elements I can keep very simple just so as to include them. Does that make sense?

[postggj]

Yes it does make sense

 

pm me a draft when ready if you like or post it on the thread

 

just do not give the opposition a chance to state the poc is vague

[steven4064]

good question dbabylon but I amsure that WFS is the correct defendant.

 

About case law, etc, the way it is done is that, as jogs says, you prepare a witness statement or statement of case with your argument, including references and excerpts from all the case law and statutes you want to use. Once a court date is set, you prepare a court bundle with all the documents, etc you intend to rely on and file and serve before the hearing (I think it is 5 days, but I will have to check). This should include complete copies of any decided cases and statutes you want to use.

[MrZ]

Given that the FSCS have taken over the PPI redress at WFS are you sure you are going after the correct defendant? You probably are but it might be wise to get this confirmed with others on here.

 

This is a good point to note for anyone readign the thread, but in my case, I have to deal directly with Welcome as the agreement was made prior to the Jan 2005 date which allows the FSCS to get involved.

[MrZ]

Thanks for the extra info Steven,

 

I am keeping very good records and my file is very organised. I suppose being a LiP the court will have a little understanding if a few small things arent exactly as expected. Of course I want to try to make sure all is in order at any rate.

[MrZ]

I've received a letter of notice of acting from Welcomes Solicitors. So now I have to correspond directly with them. I expect I will receive a few letters over the coming days/weeks from them telling me I don't stand a chance, and best to withdraw, etc.

 

If anyone here has any suggested cases that might be helpful, I certainly invite anything helpful.

 

In short, my arguments will be the mis sale of the PPI and associated insurances, the misrepresentation of the PPI and the MIF, and the unfair terms of the PPI, MIF, and all the additional unfair charges since the agreement.

 

I will be asking for a refund of sums paid, restitution on the basis of Sempra, and an order to 1. Rescind the entire agreement (best option as I have already paid the amount advanced back), or failing that 2. an order to discharge all interest accrued to date, and a determination of a nominal monthly payment amount to discharge any balance outstanding. I have no intention of arguing enforceability.

Edited June 25, 2011 by MrZ

[steven4064]

This is a good point to note for anyone readign the thread, but in my case, I have to deal directly with Welcome as the agreement was made prior to the Jan 2005 date which allows the FSCS to get involved.

We believe that, even for later agreements, you don't have to go with FSCS but have the choice to go down the court route yourself. Given that FSCS are talking about 90% of the money back and no restitution, I know which way I would go.

[MrZ]

Can someone confirm if my understaning is correct. Regulations 4.c and 5.i of the Consumer Credit (Total Charge for Credit) Regulations 1980 as ammend state that PPI has to be to be shown as a charge for credit and not amount of credit?

[postggj]

Yes

 

it is a seperate charge for credit under a multiple agreement

with there own set of prescribed terms

 

IT THEN GETS ADDED TO THE AMOUNT OF CREDIT OF SAY THE ORIGINAL LOAN TO BECOME THE TOTAL AMOUNT OF CREDIT,

 

REMEMBER ALSO THAT THE PPI SET OF PRESCRIBED TERMS NEEDS ITS OWN CHARGE AND TOTAL CHARGE FOR CREDIT ALSO

 

HOPE THIS MAKES SENSE

 

i believe the regs changed 2005 but await confirmation

[MrZ]

Yes

 

it is a seperate charge for credit under a multiple agreement

with there own set of prescribed terms

 

IT THEN GETS ADDED TO THE AMOUNT OF CREDIT OF SAY THE ORIGINAL LOAN TO BECOME THE TOTAL AMOUNT OF CREDIT,

 

REMEMBER ALSO THAT THE PPI SET OF PRESCRIBED TERMS NEEDS ITS OWN CHARGE AND TOTAL CHARGE FOR CREDIT ALSO

 

HOPE THIS MAKES SENSE

 

i believe the regs changed 2005 but await confirmation

 

Yes it makes sense. The reason I ask, is because when I originally drafted my POC, I included a section about this. Mainly that the PPI is not shown as a charge for credit. I then state that for this reason the agreement is improperly executed. As my claim is based on the mis sale of insurance, the misrepresentation and unfairness of the MIF, and the unfair charges, I am wondering if I need to mention this at all.

 

Apart from the money claim, I am asking that the agreement be rescinded due to the misrepresentations and unfair terms, and failing that an order to modify the terms. Should I save the improper executed claim for such time may be in the position to defend an enforcement claim?

[postggj]

What is the date of the agreement

 

are you asking to rescind the agreement under s.140

 

REMEMBER

 

EACH ITEM OF CREDIT, BE IT A LOAN, PPI, WHATEVER NEEDS ITS OWN SET OF PRESCRIBED TERMS ON THE AGREEMENT

[postggj]

Multiple agreements within section 18 Consumer Credit Act 1974

 

This is just my view and interpretation of s18 CCA and therefore I would advise anyone reading this bear that in mind

 

Section 18 can be very useful concerning agreements where there is a main loan and payment protection insurance.

 

Firstly lets look at what section 18 says

 

18.Multiple agreements.

 

—(1) This section applies to an agreement (a “multiple agreement ”) if its terms are such as—

 

(a)To place a part of it within one category of agreement mentioned in this Act, and another part of it within a different category of agreement so mentioned, or within a category of agreement not so mentioned, or

 

(b)To place it, or a part of it, within two or more categories of agreement so mentioned.

 

(2) Where a part of an agreement falls within subsection (1), that part shall be treated for the purposes of this Act as a separate agreement.

 

Ok so what does this mean, well, lets say you borrow £6000 from Nasty Banking Corp, the loan is for you to use as you like and therefore you would have fixed sum credit See s10 (1)(B) CCA, unrestricted use credit See s11 (2) CCA and finally it would be a debtor-creditor agreement as defined within s13 CCA

 

Now if you add

PPI

to the loan, this changes things slightly, why? Well in my view if you borrow £6000 from Nasty Banking Corp and then you add a PPI policy for example adding another £1500 of credit you are turning it into a multiple agreement

 

The PPI is fixed sum credit as set out in section 10 CCA but it is not unrestricted use, instead its restricted use credit ( See s11 CCA) as you do not have any say over its use, it is in effect only credit for the purchase of the PPI policy and additionally it is a debtor-creditor-supplier agreement as it would be undoubtedly underwritten by another specialist insurer and not the creditor and therefore it falls within the definition given in section 12 CCA

 

So in effect what we have with the £6000 loan and the £1500 PPI is a multiple agreement with

“part of it within one category of agreement mentioned in this Act, and another part of it within a different category of agreement so mentioned, or within a category of agreement not so mentioned”

 

This is because the £6000 is fixed sum,

unrestricted use debtor credit

or

and the £1500 is fixed sum,

restricted use Debtor-creditor-supplier

 

Therefore since this type of agreement falls within s18, it means that as defined in s18 (2) CCA that the document is to be treated as 2 separate agreements and each agreement must have its own prescribed terms for each part

 

Therefore each piece of credit must have its own term stating the amount of credit, repayments and all other statutory info, in addition the PPI policy would need to have a term stating the Cash Price of the policy, due to it being a restricted use debtor creditor supplier agreement.

 

In essence there should be the following

 

Loan

 

Amount of Credit £6000

Repayments 60 payments of £XXXXXX

Total amount payable £XXXXXXXX

 

APR 16.9%

 

 

 

PPI

 

Amount of credit £1500

Repayments 60 payments of £XXXXXXX

Total amount payable £ XXXXXXXXX

 

Apr 16.9%

 

Cash price of policy £1500

 

 

the agreement may not be set out exactly as above but that is to give you an idea of what it must contain

 

 

If the agreement fails to correctly set matters out in accordance with s18 then the lender risks falling foul of the form and content requirements of section 60 CCA and could be improperly executed as set out within section 61(1) (a) CCA 1974 thus becoming unenforceable

 

the main thing to remember is that you have two agreement within one document, so there must be a set of prescribed terms for each piece of credit, it is permissible to add the prescribed terms together and then state them as total amounts BUT they must be also stated in their separate parts.

 

THANKS TO PT

Edited June 25, 2011 by postggj

[MrZ]

The agreement is dec 2003.

 

In my POC I contend that PPI was misrepresented I say the same for the MIF. I then ask for the order to rescind under the Misrepresentations Act. I then ask for an order uner s 140...I hope I have worded it right. The goal is to get it rescinded first, and if the court wont allow that, then to get better terms. This is what I have so far...

 

20. The Claimant seeks an order under § 1 of the Misrepresentation Act 1967 that the agreement be rescinded.

21. Without prejudice to paragraph 20 above, should the contention of the Claimant that an “unfair relationship” exists under the terms of § 140A of the Consumer Credit Act 1974 be held, the Claimant also asks that the court consider using its powers under § 140B(1)© of the Act:

a. To order the firm to discharge unpaid interest accrued on the agreement.

To determine a monthly payment amount in order for the Claimant to discharge the principle amount outstanding on the agreement.

 

 

To be honest I am not at all sure I am going about this the right away. In the end what am trying to achieve is; getting the money back, and if possible getting the whole thing rescinded, if the court wont rescind, then I want the court to set better terms. I have the basic claim sorted, but I am not sure how to put the proper legal terms and format for what I am asking in relief.

Edited June 25, 2011 by MrZ

[postggj]

Ime sure the regs changed 2005 but i need to confirm

 

have you a link to your agreement