IND after a Welcome Finance debt

[AndyOrch]

Hi INDlover

 

Ok I will try to answer your salient points first.

 

If you lose after defending fully and submitting a CC you get a CCJ for the amount plus costs (this will be Fast Track) it depends if its a forthwith judgment or you present your I&E as to whether you are afforded a mthly payment plan.Either way you can make application afterwards to vary it to monthly.The CCJ will be on your file for 6 years.Thats if you lose.

 

If you admit or part admit and submit a defence you still get a CCJ either for the full amount or the adjusted amount if your CC is successful.

 

Regards

 

Andy

[INDlover]

Thanks for the reply Andy,

 

I fully expect to end up with a CCJ on my record and fully deserve it.

 

I cannot, however, pay the full amount at once.

 

I'm a post grad student and work freelance when I'm offered work, which isn't often enough.

 

I simply cannot afford it.

 

I can however probably afford to pay back around £100 a month although I have no idea if this is a reasonable offer.

 

I will be admitting in part regardless with these two options as neither cover the full amount of the claim, correct?

[thebaneofbanks]

just one point guys that may be useful.

 

INDlover has clearly stated on a number of occasions that the CC Summons has been posted to his parents address.

 

He has also stated as I read matters that he no longer lives at that address and that he informed Welcome many moons ago that he had moved.

 

As such the Summons has not been correctly served.

 

Can he not sit back do nothing then wait till the six years are up, check his credit fle find this CCJ

and then appeal it on the grounds that he was not served the summons and that the debt is now statute barred.

 

Just a thought

[INDlover]

I thought that by writing to IND and heading the letter with my correct address that the statute barred date might have been reset? Also if I did nothing isn't there a possibility that the repercussions would involve bailiffs visiting my parents? I can't have that under any circumstances, it would terrify them.

[Ganymede]

just one point guys that may be useful. INDlover has clearly stated on a number of occasions that the CC Summons has been posted to his parents address. He has also stated as I read matters that he no longer lives at that address and that he informed Welcome many moons ago that he had moved. As such the Summons has not been correctly served.Can he not sit back do nothing then wait till the six years are up, check his credit fle find this CCJ and then appeal it on the grounds that he was not served the summons and that the debt is now statute barred.

 

Just a thought

 

 

 

It was served at the last known address and the Defendant did received it so I would say he has been served.

 

In additional an application for a set aside must be brought promptly, waiting 6 years would not be wise as it is very unlikely that he would get a set aside. Also if the CCJ is not challenged then the Claimant can enforce it.

 

As for your idea of the debt being Statute Barred, the clock was stopped once the proceedings were issued. IF the Defendant obtained a set aside in 6 years time somehow the claim will still have been issued and all the Claimant has to do is reserve at the current address. The debt would not be SB.

[INDlover]

I'm going to admit part of the claim. I owe the money, I have to pay it back. I'd rather get this in a position where I'm not going to receive any more surprise phone calls, letters or summons and pay my way.

 

It's simply a case of how much I can realistically counter claim for and how much is a reasonable sum to set up at the monthly payment.

[INDlover]

Hi Andy,

 

Do you think ims suggestion of going for restitution but saying that if the court is not minded to award it then to claim for the lower amount is possible? If not I am going to part defend and counter claim for the PPI and charges, the lower amount.

 

Thanks for your advice!

[thebaneofbanks]

It was served at the last known address and the Defendant did received it so I would say he has been served.

 

In additional an application for a set aside must be brought promptly, waiting 6 years would not be wise as it is very unlikely that he would get a set aside. Also if the CCJ is not challenged then the Claimant can enforce it.

 

As for your idea of the debt being Statute Barred, the clock was stopped once the proceedings were issued. IF the Defendant obtained a set aside in 6 years time somehow the claim will still have been issued and all the Claimant has to do is reserve at the current address. The debt would not be SB.

 

Guys I do not believe it was served at the last known address as INDlover clearly states that he wrote to IND giving his new address. In view of this how can you say it was served at the last know address.

 

As for a set aside being filed promptly how can he do that if it is not being sent to his correct address. If he has told IND that he has moved and has given a new address it has not been served and if they continue to use the old address how can he apply for a set aside if he has not got it.

 

I think unfortunately he has now responded so it may be to late but it is possible that may well have been a better course especially as he has sent the new address. Hopefully when he did that he clearly stated he was not acknowledging any debt and was writing purely to tell them that point and that the adress they were writing to was not his address.

 

Have a think about it guys I believe it does work if done correctly

[INDlover]

I haven't responded yet, still waiting to hear from Andy, although I will have to do it before the end of the week.

[AndyOrch]

Hi Andy,

 

Do you think ims suggestion of going for restitution but saying that if the court is not minded to award it then to claim for the lower amount is possible? If not I am going to part defend and counter claim for the PPI and charges, the lower amount.

 

Thanks for your advice!

 

I haven't responded yet, still waiting to hear from Andy, although I will have to do it before the end of the week.

 

Hi INDlover

 

Its a decision only you can make if having a CCJ will cause no harm to you.I would claim the restitution figure because if the CC is successful it will reduce your liability

and to an amount that would be affordable even possible to pay off within 28 days to avoid the CCJ.

 

Regards

 

Andy

[INDlover]

Right, I'm going to CC for the restitution. I should be able to pay off that remaining amount in 28 days and wipe the CCJ completely if I win, I think.

 

So the amounts are the same as before:

 

Summons Amount: £5786.11

Amount Claimed (including IND interest): £6041.02

 

Counter Claim: £5021.08

 

Any advice on how best to fill out this form?

[AndyOrch]

Are you not doing it on line?

[INDlover]

Ah yes I'll do it online, sorry.

[INDlover]

I've done the Acknowledgement of Service to give me two extra weeks to prepare my defence, otherwise it was going to have to be done by Wednesday. Is there anything else that requires immediate attention that anyone can think of?

 

Thanks for all your time guys.

[INDlover]

Hi everyone,

 

I'm filling in the form now but there is no way for me to indicate that I am a student. Is this something I should mention in the form?

 

Also do you think if I offer to pay the remaining balance in a lump sum that it might help with my defence?

 

Thanks for your help!

Edited July 2, 2012 by INDlover

[INDlover]

Right I have no idea how to word the defence portion of this form. I've got a vague outline but this is in no way my area of expertise. Would it be possible for someone to give me some advice on wording and the like? Perhaps over PM would be best as I know from reading other threads that IND/Hegarty have a habit of browsing these forums.

 

Thanks for your time everyone.

[AndyOrch]

Hi IND lover

 

Can you post up the CC content of your defence.

 

Andy

[INDlover]

Hi Andy, of course!

 

I intend to claim for restitution for the amount of £5021.08 against the originally claimed amount of £6041.02.

 

This restitution pertains to amounts I have paid against the balance of the account, which was put on hold by Welcome Finance.

 

The amounts I paid were used to pay back illegal bank charges against me that had been added to the account by Welcome,

as such they have been holding my money and gaining interest upon it when they should not have.

 

I am counterclaiming for that money back, including compound interest, as well as the sum of my PPI, which was missold to me.

[AndyOrch]

No I am aware of the why and what I need is your wording to enable a draft of the part 20 content/Defence wording as per your request #66

 

Andy

[INDlover]

Ah I see, sorry!

This so what I've got so far, I'm not sure if it's even in the right direction, it's similar to what I have written above!

 

The defendant in this case wishes to counter claim against the claimant, Welcome Finance, for the sum of £5021.08

on the basis of restitutionary damages against payments previously made on the claimed account

as well as a claim for missold payment protection insurance of £997.40.

 

The defendant believes that payment protection insurance was missold as he was not provided with details of alternative insurance options

or asked whether he already has applicable insurance in place.

 

Futhermore the defendant was pressured in to buying the payment protection insurance by being led to believe

that it was a necessity for accepting someone in his financial situation at the time.

 

Charges were added to the disputed account, amounting to £240.

 

As payments have been made to the account by the defendant it is the belief of the defendant that these payments were made to write off the newly added charges,

which have since been discovered to be unjust.

 

The defendant wishes to counter claim for the for the sum total of £5021.08 which amounts to the repayment of items miss old

or unjustly charged to him plus compound interest to reclaim the money that the claimant has gained from him illegally during the period since payment.

 

It's just nonsense I'm sure! I'm terrible at this.

[AndyOrch]

Ok thats not bad just needs a few tweaks and laid out correctly.Ok what is your deadline for submission?

 

Andy

[INDlover]

My 28 days is up a week tomorrow, on the 18th, but I'd ideally want to submit before the end of the week just to be on the safe side.

[AndyOrch]

Ok you stated you wished to admit to the claim and therefore is basically just an acceptance of what they claim.When you make the Counter Claim this is referred to as a Part 20 claim and you become the Claimant.

 

Here is an example of a Defence /PT20 claim

 

 

Defence

 

The Defendant admits that in or about XX/XXX/XXXX (he/she) entered into an agreement with (Claimant) and which was an agreement regulated by The Consumer Credit Act 1974 (The Act).

 

The particulars of claim are vague and do not provide sufficient detail to enable the defendant to plead effectivley or at all. By way of example the claimant has failed to confirm the date of Agreement/Account numbers upon which the cause of action is based.

 

The Defendant has no recollection of and makes no admissions regarding the precise purpose of the agreement or of its terms, conditions and other provisions or what would constitute a breach thereof. The Defendant denies that the agreement was a properly executed agreement and denies committing a breach thereof.Notwithstanding the matters pleaded above, the claimant must under section 87(1)also sections 76(1) and 98(1) of the CCA 1974 serve a default notice before they can demand payment under a regulated credit agreement.

 

Prior to the issue of the action the claimant was requested to disclose documents relating to the alleged debt and/or agreement. The claimant failed and/or refused so to do.

 

The documents described above were the subject of a request pursuant to Section 78 ofthe Consumer Credit Act 1974 and CPR 18 request

 

It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, includes penalties charges, which are unlawful at Common Law, under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate

 

It is denied that Capital One served a default notice upon the Defendant, alternative a default notice complying with the provisions of section 88 of The Consumer Credit Act 1974.

 

It is admitted and avered that since the termination identified above,capital One have made demand of the Defendant for the payment of money the subject of this claim.

 

Incorporated within the sum demanded by the Claimant are sums claimed for their administration fees, late payment charges and like provisions. It is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of late payment. The Defendant avers the incorporation of such claims is penal and unenforceable at law.

 

Further and in any event, by reason of the matters set out above and the requirements of section 87(1) of the Act, the steps taken by Capital One hereof were steps which Capital One were not entitled to take.

 

Defendant contends that the Claimant’s conduct in issuing this claim is vexatious and amounts to unlawful harassment, pursuant to section 40 of the Administration of Justice Act 1970

 

In the circumstances the facts and matters set out in the Particulars of Claim do not give rise to an entitlement to claim any of the relief now sought by the Claimant.The Claimant’s claim to be entitled to £xxxxxxx to interest or to any other sum is denied.

 

The Claimants have not established any legal right to issue a claim or proven that any debt exists. It is the Defendant’s position that the Claimant’s claim is entirely spurious and without merit and should be struck out for the aforesaid reasons

 

 

 

 

 

 

 

Part 20 Claim

 

5. The defendant/Part 20 claimant intends to claim sums paid to the claimant /Part 20 defendant in relation to penalty Charges Incorporated within the sum demanded by the Claimant are sums claimed for their administration fees, late payment charges and like provisions.

 

6.The defendant/Part 20 claimant refers to As a consequence of the claimants/Part 20 defendants failure and/or refusal to provide documents, the defendant/Part 20 claimant is unable to plead the Part 20 claim with particularity.

 

And the defendant/Part 20 claimant claims:-

 

i) An order requiring the claimant/Part 20 defendant to disclose statements of account covering the entire period of the alleged agreement and a copy of the alleged agreement.

 

ii) XX XXX XXXX unfair charges (expand on reasoning)

iii) Interest pursuant to Section 64 of the County Courts act 1984 at the rate of 8% per annum until judgment or further order or such other sum as the court thinks fit.

 

I the Claimant request the right to offset the amounts claimed.

 

 

 

Regards

 

Andy

[INDlover]

OK thanks very much Andy,

 

I'm going to go over this this afternoon. Reword and reformat mine to resemble the example where appropriate and repost it.

 

Thanks again for your time, I'm greatly indebted.

[AndyOrch]

No problem post up your final draft before submission.

 

Regards

 

Andy