BARCLAYCARD Round 2 - Page 3

skintboy69 · 3rd January 2009, 21:22

Oh no it didn't

Don't know what to do now.

steven4064 · 3rd January 2009, 21:31

I didn't realise it was a spreadsheet you were talking about. I don't mind checking those by e-mail. It's just advice on your 'case' I would rather was inthe open so that others can correct, enhance or trash it.

skintboy69 · 3rd January 2009, 21:39

Second time lucky???

NO

skintboy69 · 3rd January 2009, 21:49

I'll e-mail it straight away Steven, thanks.
I absolutely endorse what you say about general advise etc. I/we learn so much from the posts here.

Cheers,

T.

skintboy69 · 4th January 2009, 21:01

Having spent half the day fiddling with my POC I think I have finally gort it right and will attempt to post it up here for the great and the good to peruse.

My first name not being Bill and my second name not being Gates, this sort of thing usually goes horribly wrong for me - so stand by for a laugh.

IN THE XXXXHCOUNTY COURT

BETWEEN

Skintboy69

Claimant

and

Barclays Bank Plc (t/a Barclaycard)

Defendant

PARTICULARS OF CLAIM

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around 1 May 2001, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxxxxxxxxxxxxxx ("The Account").

2.The Agreement essentially consisted of the Defendant providing the Claimant with a credit card (“The Card”), which would allow the Claimant to make purchases and receive cash advances on credit. In return the Defendant was entitled to charge interest at the published rate.

3.The Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974.

4.At all material times the contract was subject to the Defendant’s standard terms and conditions, which could be varied from time to time.

Summary

5.Throughout the course of the Agreement, the Defendant has added numerous default charges to the Account for the Claimant’s breach of the Agreement by his failure to make the minimum payment on the due date and or for exceeding the credit limit and or if a payment was returned. (Full particulars are set out in the attached Schedule).

6.The default charges were applied in accordance with the standard terms of The Agreement, which were:
a). A penalty payable on breach of contract and thus unenforceable: and
b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Claimant.

7. The Claimant is accordingly entitled to repayment of the sums wrongly added to the Account plus interest levied thereon.

The Charges

8. The standard Terms of the Agreement in substance provided as follows:

(a) The Defendant would provide the Claimant with the Card. The Claimant was entitled to use the Card to make purchases and receive cash advances up to a credit limit (“the Limit”) set by the Defendant. The Defendant could unilaterally change the Limit by giving the Claimant notice in writing.
(b) The Defendant was entitled to charge interest on the purchases and cash advances at the published rate.
(c) The Claimant was to pay the minimum payment specified on the monthly statements of account by the due date as notified in the monthly statements.
(d) In addition the Defendant was entitled to charge default fees (“the Charges”) where the Claimant exceeded the Limit, did not pay on the due date or had a payment returned. The Charges are currently £12 for each transgression. Prior to 2006 the Charges were £24.

Contract Penalties

9. The Charges were payable on breach of contract by the Claimant.

10. The amount of the Charges exceeded any genuine pre-estimate of the damage, which would have been suffered by the Defendant in relation to the Claimant’s transgressions.

11. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

The Regulations

12. At all material times the Claimant was a consumer within the Regulations.

13. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that, contrary to the requirement of good faith, they caused a significant imbalance in the parties' rights and obligations to the detriment of the Claimant.

14. Without prejudice to the burden of proof, the Claimant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

(1) The terms relating to Charges were standard terms; they would not be individually negotiated.
(2) The Charges were a penalty for breach of contract.
(3) The Charges exceeded the costs, which the Defendant could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.
(4) Accordingly the Charges were a disproportionate charge incurred by the Claimant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.
(5) As the Defendant knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.
(6) As the Defendant knew, the Claimant had no means of assessing the fairness of the Charges.

(7) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Defendant in a way, which was inequitable.

15. Without prejudice to the burden of proof, the Claimant will contend that the terms imposing the Charges are not core terms under regulation 6 of the Regulations and rely on the following matters.

(1) The assessment of fairness does not relate to terms, which define the main or core subject matter of the Agreement.
(2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).
(3) The Charges are correctly described as default charges by the Defendant in the key information provided to new customers.

16. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

17.The Defendant wrongly applied Charges to the Account totalling some £xxxx between 15th May 2003 and 7th July 2008 and interest levied thereon of £yyyy. Particulars appear from the attached Schedule.

18. On 23rd November 2008 the Claimant demanded repayment of the sums wrongly applied.

19. The Defendant has made only token payments totalling £531.36

Compound Interest
20. The Claimant submits that the Defendant would be unjustly enriched was the Claimant’s entitlement limited to the statutory rate of simple interest. The Defendant, a powerful financial institution, has had use of the sums wrongfully and unlawfully gained by way of penalty charges levied to the Claimants account, over a period of up to 4 years. The fundamental core of the business of the Defendant is to acquire funds and profit from those funds in the form of interest by lending at commercial compounded interest rates. Therefore, it is the Claimants submission that the sums wrongfully and unlawfully acquired from the Claimant by way of penalty charges would, over the considerable time they have been in the Defendants wrongful possession have earned considerable profit by virtue of commercial rates of compounded interest charged by the Defendant.

21. Therefore for complete restitution to occur the Claimant seeks an award of compound interest at the accounts purchase interest rate of 14.9% per annum. The Claimant submits that it is unconscionable that the Defendant may be allowed to profit in any way from unlawful, wrongful and unauthorised use of the Claimants funds, and that compound interest at the rate claimed is necessary to provide an equitable remedy.

And the Claimant claims:

(1) Payment of the said sum of £xxxx and interest of £yyyy applied by the Defendant thereon.
(2) Compound interest at an annual rate of 14.9% from the date of payment of the Charge to 4th January 2009 in the sum of £zzzz, and at the daily rate of 0.0381% until judgment or sooner payment.

(4) Court costs of £

I believe that the facts stated in these particulars are true.

Dated this 4th day of January 2009

Signed

From the Terms and conditions currently enforce (as of Sept 2007).

2.5 You must keep within your credit limit. When working out whether you have gone over your credit limit, we can include the amount of any authorised transaction not yet put on the account.

3.1 You must make all payments by the payment due date. To help you to do this, your monthly statement will tell you how to make payments to reach us on time. Where we
become aware that your monthly payment was received before the payment due date but credited to your account after this date because of an error by us we will either refund or not charge a late payment fee.

From Key Financial Information (Sept 2007)

Amount of credit

We will tell you your credit limit when you first receive your Barclaycard. We may
change your credit limit depending on our assessment of your account and will tell you
about these changes by writing to you.

Monthly Payments
You must make the minimum payment every month of 2.25% of the amount you owe
us on your monthly statement or £5, whichever is more or the entire amount if less
than £5. You must pay the minimum payment by the due date shown on your
statement. This will normally be 25 days after your statement date.

Default Charges

We will charge you for any reasonable costs or losses we incur if you break this
agreement, including the following charges:
£12 if you do not make at least your minimum payment by the payment due date;
£12 if you exceed your credit limit at any time;
£12 if a direct debit, cheque or other item is not paid when first presented.

Brief POC
Quote:
Repayment of charges unlawfully applied to the Claimant’s account by the Defendant for purported breaches of a contract plus interest levied thereon in contravention of the common law and the UTCCR1999 plus payment of interest in restitution of the Defendant’s unjust enrichment.
The Claimant claims:
(1) Repayment of charges totalling £xxx and interest of £xxx applied by the Defendant thereon.
(2) Compound interest of £xxx and at the daily rate of 0.0381% until judgment or sooner payment.

At this stage it appears to have worked but anything could happen when I flip the switch.

skintboy69 · 6th January 2009, 22:38

Do we have a thumbs up or a thumbs down for the POC???

Cheers.

T.

slick132 · 6th January 2009, 23:02

Hi Skint,

I'm not qualified to comment on the technical content.

Steven is, but he may simply not be around or have time to go through this just now. If it's come from good sources and you've carefully adapted, and proof-read, it may have to go without specific comment.

In the Summary, 6 a) has a full stop that shouldn't be there after the "6 a)"

Total pedant !!

steven4064 · 7th January 2009, 00:09

It's basically my Goldfish POC.

para 17 and (2) of "the claimant claims" both have numbers missing - £xxxx

skintboy69 · 8th January 2009, 00:55

Hi Slick.

You can be as pedantic as you like. I really want to get this one right and a dozen posts pointing out crap punctuation etc is better than screwing it up over a technicality.

I value your observations and comments.

Cheers.

T.

skintboy69 · 8th January 2009, 01:02

Hi Steven.

It is, indeed, your Goldfish POC and I claim absolutely no credit for it whatsoever (albeit I wish I could). I obviously had to prune it a little to make it fit my case but I think it's a really well structured document and if that doesn't impress the judge, I'll have to take a troop of dancing girls with me and try that.

I will add the figures prior to getting it to court and then spend some weeks sweating.
Thanks for the input.

Cheers.

T.

skintboy69 · 16th February 2009, 21:40

Doesn't time fly when you're having fun??

Here's a quick update. I finally got the papers to court at the back end of January and the court, no faster than lesser mortals, posted it on to BC about a week later. It was deemed served on 5th February.

Today I received acknowledgement of service. BC have 'indicated' that they intend to defend the whole claim, so they have until early March to file a defence.

I am in uncharted waters now. What happens next? Should I be doing something? Should I be worrying rather than toying with the corkscrew

?

I don't think so.

........ well, not yet anyway.

Any input would be very greatfully received.

Keep the faith.

T.

noomill060 · 16th February 2009, 23:53

Yeah, they always say they will defend.

Thing is, they never have. They either make you an offer before the case come to court or instruct someone to do so for them at the court itself.

Dont sweat it.

skintboy69 · 17th February 2009, 23:12

Yo Noomill.

Cucumbers ain't in it

.

To be honest, I can't wait to see their defence. How do you defend the indefencible?

I might frame it and hang it on the lounge wall, or nail it to the gate as a warning to other bankers

.

Keep the faith.

T.

noomill060 · 18th February 2009, 00:51

"(2) Compound interest of £xxx and at the daily rate of 0.0381% until judgment or sooner payment."

This should have read:

(2) The Claimant respectfully asks the Court to consider awarding interest pursuant to the County Courts Act 1984 at the rate of 14.9% pa compound, at a daily rate of 0.0381% until settlement, or what ever the Court deems just.

Draw this to attention of the judge if it comes to it, which it probably wont.

skintboy69 · 19th February 2009, 23:21

Today, I received an envelope from the court. It contained BC's defence and an order saying that my claim had been stayed.

They obviously haven't seen beyond the defendant being 'Barclays Bank Plc'. What a pain.

I will try to post the defence up here. Some of it is quite obvious but some will need a 20th reading to try to make sense of it.

Keep the faith.

T.

slick132 · 19th February 2009, 23:25

Hi SkintBoy,

Read here - Objection to stay on credit card claims

I hope you filed at your local county court and not through MCOL.

skintboy69 · 19th February 2009, 23:50

Good evening Slick. I'm continually staggered by the level of support I get here. You guys are awesome.

Yes, I did file at the County Court (N1) so I don't anticipate a problem getting the stay lifted.

I'll get a letter off tomorrow and then concentrate on the defence.

Cheers, T.

skintboy69 · 20th February 2009, 13:01

I phoned the court this morning to check a few details for having the stay lifted. I was told that I would have to complete an N422 (?) form and pay a fee of £75.

If it ain't the banks robbing us it's the damned courts.

Any ideas out there???

Keep the faith.

T.

slick132 · 20th February 2009, 13:15

You could try a firm but polite letter to court pointing out the Test Case has no bearing whatsoever on your claim and your case has been Stayed in error.

If that fails, N244 may be your only option and add the fee to your reclaim from BC.

skintboy69 · 21st February 2009, 09:44

Good morning to one and all. I hope the sun is shining on you.

I'm just about to dash off a letter to the court, but before I do, there are a couple of things I should like clarified if anyone can.

The order says:
'Any application shall be on notice to all parties and shall be supported by a statement setting out why the claim should proceed.......'

Does this mean that I should send a copy of my letter to BC's solicitors?

If this actually means the application has to be N244, am I expected to know that by the wording?

Also, it gives me 7 days to apply. If I send the letter and the application does indeed have to be via N244, will I have wasted my 7 days and have no further chance of having the stay lifted?

Ignorance is a terrible thing.

Keep the faith.

T.

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