Damien v Barclaycard

[damiencannell]

Hi All

Just wanted to say what a great site and has helped me no end with this.

Well the 40 day deadline for my Subject Access Request is up and i will be writing to Mr Whalley and Co to day to give them seven days to get their asses in gear. It does peev me a little that Barclays have just announced profits of 14 Billion and Whalley and Co are still whining about resources.... Perhaps some of the 14bn could be diverted to employ some monkeys to some photocopying!!!!

Anyway was looking at the MSE site and they are warning that the OFT are due to rule on how much bank charges should be set at in April (ie £12) and this could affect the amount poor suckers like me can claim because they can argue the difference. I know they are already doing this then backing down but will this make their case stronger for offering the diffeence????

Does anyone know anything about this??? Worried that barclayrubbishcard will stall till this time to save some money in payouts

[Advoc8]

The OFT does not make the law. All they can do is set a level above which they would take action, also the OFT credit card ruling has made no real difference, card issuers are still making full refunds.

Don't worry, just keep things moving along to your timetable.

[damiencannell]

Thanks Advoc. 7 day reminder going out today and we will see if it illicits a response from Whalley and Co. Hmm i wonder if its worth calling them????

[damiencannell]

Not sure if anyone has seen this but i guess its just another example of Barclayrubbishcard kicking the little guy. There obviously not content with just abusing thier customers so have now moved onto thier own staff and have decided to make some 600 staff redundant so that they can move their Manchester call centre to India, presumably to cut costs (and wages). How considerate of them!!!!

BBC NEWS | England | Manchester | Firm sheds 600 call centre jobs

Only a few days left for Whally and Co to come up with my statements or Its Information Commissioners Office and court here I come !!!!!!

[damiencannell]

Ok, so Whally and Co didnt come up with anything of note, not even a phonecall after my 7 day reminder. I also gave him a little extra time via email till today......and you can guess what im gonna say next....yep no statements.

Therefore I am going to complain to the info commisioner but do the CAG masses think i should wait for the Info Com to wave the big stick or go straight down and commence proceedings for the recovery of my statements and if its the latter any tips on where to start???

Thanks
Damien

[Phonesurgeon]

I suggest you file in court for non-compliance.
You given them more than enough time.
on the other side if you owed money to b'card they would take you to court no question asked.
Bring in the court procedure and let them explain to the judge why they haven't complied with a simple request.

[damiencannell]

Hmm am erring on the side of agreement, will have to read up on how to go about it. Information Commissioners Office complaint has been sent !!

[damiencannell]

Just a quick update for you all:

19th March - recieved letter from Barclayrubbishcard stating Microfiche blah blah we dont agree with Information Commissioners Office because we're above the law but will send them anyway when we're ready blah blah not telling you about any manual intervention because we dont have to blah blah blah! Basically the same cr@p they are feeding everyone else.

Have recieved statments back to June 2004 minus one that is missing and already awaiting response to my complaint to the Information Commissioner.

Am going to write a response to the letter but wondering if anyone had any ideas on how to approach it????

Do i now actually fill out my particulars of claim and attend the local court house or fire off a nasty letter to Whally and Co and wait on the Information Commissioner. Any thoughts or suggestions most welcome....please!:confus ed:

[damiencannell]

Well stone me Whally and Co actually sent the statements finally. My jaw did drop.

However they did not send me all of the statements but did cover the six years so cant be arsed to keep pestering but am going to leave my Information Commissioners Office complaint open as am p*ssed off with their attitude and they technically havent yet complied with my Subject Access Request fully.

The Information Commissioners Office need to know how badly Barclayrubbishcard flout the law and I would urge all who have been given the same treatment to complain to the Information Commissioners Office.

Have compiled my list of charges and they total £575 not including interest. Will be sending prelim out as soon as i get a chance.

Thanks all.

[damiencannell]

Right finally got round to completing a prelim letter to Barclaycard....got lost in the mire when moving house!! Was pleased to note that a judge in the mercantile court has issued a warning to banks to stop wasting time when they have no intention of defending in court.

Anyhoo have robbed bits of peoples letters here and there so hope they dont mind..... Much thanks to Mcuth for his eloquent prose which i borrowed from. below is the draft. Any comments welcome:

Dear Sir/Madam

ACCOUNT NUMBER: **************

REQUEST FOR REFUND OF CHARGES

My request
I am writing to ask you to refund the charges which you have levied from the above account over the past six years. I now understand that the regime of fees which you have applied to my account in relation to exceeding credit limits, late payment and so forth are unlawful in Common Law, Statute and recent consumer regulations. If you say that they are not, please demonstrate this by letting me have a full breakdown of the costs to which you have been put by as a result of my breaches of contract, in order to reassure me that your penalties really do reflect your costs.

I am of the view that your charges represent a penalty and are therefore unrecoverable at Common Law. In the Scottish case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498; the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract. This is also the position in English law: Wilson v Love [1896]; Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79; Ford Motor Co v Armstrong [1915]; Bridge v Campbell Discount Co. Ltd [1962]; Murray v Leisureplay [2004].

Your charges do not reflect any actual loss; instead they appear to represent a lucrative profit-making scheme. The actual loss is the cost of automatically sending me a computer generated letter which I would respectfully submit is valued at no more than 50 pence.

UK banks have recently given evidence to the House of Commons Treasury Committee on how bank charges are calculated: "The costs are going to pay for all the people we have who pursue debt, collect debt, speak to customers and chase payments. The way these charges are arrived at is by taking these total costs and making some assumptions about the volume that is going to come through to arrive at the individual charges" (2nd report, 25 January 2005, paragraph 50).

Accordingly, the charges applied to my account are not a reasonable pre-estimate of your loss in relation to my account. No-one has had to look at my account or telephone me. No one has had to collect anything. Your charges would appear to represent a device to recover global losses (for example, loan defaulters, bad debt write off, including commercial lending in, and outwith, the UK).


On a separate note, your charges appear to represent an unfair contract term which is contrary to the Unfair Terms in Consumer Contracts Regulations 1999 (SI. 1999/2083). My account falls within the scope of Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999 as I am a consumer. Your charges constitute an unfair penalty under reference to paragraph 1(e) of schedule 2 of the said regulations:

‘Indicative and non-exhaustive list of terms which may be regarded as unfair - 1. Terms which have the object of effect of - (e) requiring any consumer who fails his obligation to pay a disproportionately high sum in compensation’.

0n 26 July 2005, the OFT stated that 'a charge is likely to be disproportionately high if it is more than a court would be likely to award if the lender sued the cardholder for breach of contract'. Because your charges include a large profit margin, in addition to actual loss, they are unrecoverable as an unfair term in contract.

It has now been confirmed that your particularly high level of penalties are considered to be unfair per se by the OFT who reported on 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.

Your responsibilities
I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary. I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them. Your concealment of the true nature of your charges has prevented me from asserting my right until now.

What I require
I calculate that, as at today’s date, you have taken a total of £575.00 in charges
I request that you refund this amount in full, payable by cheque directly to me.

Targets to resolve this matter
I hope that you will enter into a sincere dialogue with me about this matter and write on the assumption that you will prefer to do this rather than merely respond with standard letters and leaflets. You have 10 working days, from receipt of this letter to reply unconditionally accepting my request in principle and letting me know a date by which I will receive payment.

If you do not respond, or do not respond positively, within this time period, I shall send you a letter before action allowing a further 10 working days in which to reflect. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments. After that will be no further communication from myself and I shall issue a County Court claim at the expiry of the second deadline.

I look forward to hearing from you by return.

Yours faithfully,

Are Barclaycard still up to their tricks as i havent been on the forum for a while?????

[damiencannell]

Does anyone think that the Win by LloydsTSB today over a claim will effect the rest of us still trying to claim monies back. I know it hasnt set a
Precedent as it wasnt a ruling in the High Court but will it give the banks more ammo to defend??

BBC NEWS | Business | Bank's overdraft charges upheld

[greengrocer]

The publicity of this could do more damage than the ruling, couldn't it - people may now accept the banks' first offers because they're scared if it goes to court they will get nothing.

Do we know anything about the particulars of this case?

GG

[damiencannell]

I think your right, the publicity is going to hurt a lot of peoples morale over claiming back charges but i hope it doesnt put them off. It certainly hasnt deterred me and prob wouldnt effect any decision to take the matter to court.

I dont knoow the details of the case but maybe the guy handled it worng giving the judge cause to find in the banks favour?! In any case i hope thats what it was.

[TUTTSI]

Hi Damien
Yes I think that the banks will try and go the whole hog where the claimaint makes mistakes like illegal instead of unlawfull. I would imagine the claimant in the Lloyds TSB case was not from CAG neither did he not follow protocol! My Hubby was speaking with someone at Barclays Litigation team today on his own claim today and they have confirmed to him that they will be changing their stance in future following the Lloyds case win ( I don't think so).

My only contention is that in order for them to go to court they will have to be prepared to send in their evidence to court and to the claimaint within the timescales ordered by the court and that would mean that they would have to break down their charges etc, which up to now they have not done! Also, a win in the C/C is not a test case, however a win in the Mercantile Court could be a test case and if you read Judge Mackies from the Mercantile Court the day before he advises that he will make a test case if the defendants do not settle before court date.
DS

[sea-sidelady]

He is from cag..!!

Lloyds victory in Birmingham - in perspective

[TUTTSI]

Well what do you know, I did not think he was from CAG, I have downloaded the judgement all 14 pages. Do you think he will appeal as I believe that he should and it should get overturned! what do you think!
regards
DS

[sea-sidelady]

He has got the mods and bank fodder behind him, so irecon he will appeal. I hope he does.