Court Claim Against Barclays.**WON**

[ammani]

I recently filed a court claim against Barclays Bank, for charges they levied against a loan account that i had with them, and for removal of a default notice served against me. The issue date of the claim was 04/07/07. Today i recieved an Allocation Questionnaire to fill in and a copy of the Defence filed by Barclays.I also recieved their letter 'Unauthorised Overdraft Charges Court Action' about the OFT test case and proceedings being stayed. I spoke with my local court, and was told that each case will be seen on its own merit, and to continue with my claim. So i have completed the Allocation Questionnaire and will be sending to the court. And if i am notified that the case is to be stayed will be sending in a copy of the letter in the templates library. I would be greatful for any advice about the Defense they have filed, as not quite sure what to make of it. But havnt a clue how to copy it, to here, tried copy and paste but not able to do it! Thanks.

[welshcakes]

Hi ammani

You seem to have everything well under control and have done all necessary to this point.

If you post the first three points of their Defence on here, we can see if there's anything that needs your attention. If you have it scanned onto your C Drive, it will be an image, not a text document which is why you can't copy and paste.

If it's easier, just long hand type out 1st 3 points

Well done for having it all in order so far

[ammani]

Thank you Weshcakes, for your reply.I have found this site most helpful, and thank all who keep it going.Barclays defence is as follows:

1) The Defendant reserves the right to amend this Statement of Case in due course.

2) The Defendant is entitled to charge the Claimant for unauthorised borrowings by reason of its standard terms and conditions.The Claimant accepted the same when the account was opened, including (in particular but without limitation) the following terms and conditions (which are summarised):

a. The Defendant's right to charge a ''Paid Referal Fee'' where the Defendant pays an amount (either by compulsion or election) which causes the account to become overdrawn - £30.00 per item (previously £25.00).

b. The Defendant's right to charge an administrative fee if any cheque, standing order or direct debit cannot be paid because of insufficient cleared funds in the account - £35.00 per item (previously £25.00.

c. The Defendant's entitlement, if the Claimant becomes overdrawn without an overdraft limit, to charge interest at the unauthorised borrowing rate on the excess balance.

3) The Defendant's standard terms and conditions give the Claimant a fair and transparent view of those terms and the charges applicable for unauthorised borrowings (including where the account is overdrawn without an overdraft limit or where the Claimant exceeds the authorised overdraft limit).

4) If and to the extent it is the Claimant's case that failure to make necessary payments and / or failure to remain within authorised overdraft limits and / or failure to arrange an authorised overdraft constituted a breach of terms applying to the account and that the contractual entitlement to debit charges from the Claimant's account constitutes a liquidated damage clause, the same is denied. The charges constitute payments the Claimant agreed to make by reason of the terms and conditions of the account and were consideration for the Defendant advancing credit to the Claimant, which the Defendant was under no obligation to advance. The Defendant was entitled to impose such charges and interest when the Claimant incurred the overdraft.

5) Accordingly, it is denied that the legal principles relating to liquidated damages clauses and penalty charges are revelant or applicable to the facts set out above.Further or alternatively it is denied that any such charges constitute unlawful penalty charges or are in breach of the Unfair Terms in Consumer Contracts Regulations 1999, or are in breach of the Unfair(Contracts) Terms Act 1977, (or indeed any other provision).

6) Therefore, it is denied that the charges were unlawfully debited from the account.

7) It is further denied that any such charges unduly enrich the Defendant.

If and to the extent the Claimant incurred charges on the account,this was caused by the Claimant having gone into overdraft without having agreed with the Defendant an authorised overdraft facility or to increase the overdraft facility and / or the failure to make payments to bring the balance of the account back into credit.

9) It is averred that the said charges and interest are and remain lawful and enforceable and the Defendant was entitled to debit the same.

10) The Defendant denies that it is liable to the Claimant for the sums claimed and interest as pleaded or at all. In the alternative if (which is denied) the said charges are unenforceable and constituted a breach of contract by the Defendant, those charges which were applied to the account prior to 4th July 2001 are notrecoverable because they are time-barred under the terms of the Limitation Act1980 in that more than six years have elapsed since the accrual of the cause of action.

11) In the alternative, and without prejudice to matters stated above, if (which is denied) the said charges and interest or any part thereof are unlawful or unenforceable as alleged by the Claimant or at all, and the charges were a consequence of the breach of contract by the Claimant, the Defendant has nonetheless suffered loss and damage as a cosequence of such a breach of contract in allowing the account to go into unauthorised overdraft. Accordingly, in the event the Defendant is unable to rely on its express entitlement to enforce the charges as set out above, it will seek to recover to the extent necessary such loss and damage as it actually suffered, which will not necessarily be limited to the value of the said charges, and the Defendant seeks to set off such sums against any liability owed hereunder to the Claimant.

12) It is further denied that the default notice entered against the Claimant's credit record was merely in respect of the charges. The Defendant was entitled to place a default notice on the Claimant's credit record for a failure to remain within his authorised overdraft limit.


This defence is crazy, as in my terms and conditions it didnt state any amounts for charges, this was a loan account , that also had my ex's signature on it! I only went into overdraft as they still tried to take my monthly payment for loan, after i had closed the account, and was in an agreement with them through the CCCS.They also defaulted me and served me with aCCJ while in an agrrement with them, through CCCS.

After requesting my data, i only recieved statements, no signed agreement, no agreements with CCCS, nothing else which pertains to account and which i would need in court. I will be calling them tomorrow to ask for the rest, as i am not goint to let them walk all over me.

[welshcakes]

Hi ammani

Well their Defence reads pretty standard. I see they have included a piece about pre-6 yr barr in regard of Limitations Act and as feedback on the success of claims was limited prior to the OFT TC bringing on massive Stays around the UK, it's difficult to assess the strength of case for claiming more than 6 yrs worth of charges. Many of us are still proceedin with it anyway as we don't belief the Act is an adequate defence in the matter of bank charges.

If you sent the S.A.R - (Subject Access Request) from here asking for the entire banking history (and not just 6yrs worth and/or statements), then Barclays have failed to comply with your request and will continue to be so until they supply not only a true copy of the original Agreement (ie the one with signatures) but also manual intervention documents such as the CCCS paperwork.

I would send them a version of Temlate Letter #2 from Data Protection Act - Non-Compliance - Template Letters
itemising the documentation areas still outstanding.

If they don't send, take them to court for Breach of Data Protection Act (it does work and you do get not only your court fees back but also calculated costs for your expense and time; Barclays normally jump through hoops to settle rather than even risk a Directions hearing). The link for filing is Data Protection Act Non-Compliance - Particulars of claim.

The fact that it was a joint loan account with your ex doesn't matter.

Not having sight of your T&Cs etc, I can't say with certainty, but I suspect that you have good cause to have the Defence struck out on the grounds of abuse in that it appears standardised in nature and is not relevant to the dispute, that specifically being a Loan account that was not subject to the T&Cs of a current account for which this Defence has evidently been prepared.

Though their partial response and lacklustre Defence may seem frustrating, you may well find that it is very beneficial to you getting this sorted quickly (in your favour) as they don't appear to have read you POC properly and have responded with an automated, inappropriate Defence.

The bank's lack of effort is likely part due to their assumption that every claim they now come across will get Stayed - this attitude is good news for claims such as yours as they leave you in a position to get Defences Struck Out and a Judgement by Default in your favour.

[ammani]

HI Welshcakes, thanks for that.

Things have got more confused now.It seems they have sent me documents for my current account, and not the loan account.But the loan account has same number as current account! Speaking with Barclays today, they say they have no record of the loan account as 6 years have passed.And that it wouldnt have same number, but i have a letter confirming settlement of the loan, with this number on it.They are getting their specialist team to look into it. Also i never ever recieved copies of the loan agreement, which they say i would have been sent, at the time.To confuse it more, they closed the initial loan, when i ran into difficulties paying it, due to my separation, and then reopened it again, and put on 1500 finance charges!! But i have never had any information to do with all this, so how will i defend my case in court? I want to show that at all times i kept in touch with the bank and was paying them through the CCCS and they still defaulted me, and then served me with a CCJ.So unfair.

[welshcakes]

Hi ammani

Your opening posts states you've already filed a claim for the charges imposed on the Loan Account (of which Barclays are suggesting they have no knowledge). Exactly what did you base your charge calculations on - do you have statements or some other original paperwork?

"they have sent me documents for my current account, and not the loan account"
How long ago did the Loan Account permanently close and are you sure it was a separate account and not just your current account converted into a loan account ie one and the same just type altered by agreement?

"they have no record of the loan account as 6 years have passed"
How long ago did the loan account close ( I presume this will be the same date as "i have a letter confirming settlement of the loan" - if this occured less than 6 years ago, they are legally obliged to retain record of it and if they have not (or more likely they are fobbing you off) then you have a case for Data Protection Act breach.

"They are getting their specialist team to look into it"
Not to burst any bubbles, but I would send a follow up letter recounting everything that was said in any phone calls - Barclays are infamous for not following up and/or denying the content of calls.

"reopened it again, and put on 1500 finance charges!!"
What do you mean they "closed the initial loan" - they obviously didn't just wipe it off so did they agree some sort of "payment holiday" ie temporary suspension?

All this paperwork, signed agreements, negotiations, alterations etc makes up part of your S.A.R - (Subject Access Request). Have you got payment records regarding the CCCS?

"i never ever recieved copies of the loan agreement, which they say i would have been sent, at the time."
As long as the payments via CCCS or CCJ occured within the last 6 years, they are obliged in law to retain the original Agreement. If the bank cannot produce a 'true' copy of the executed agreement ( ie the agreement you would have originally signed when taking out a loan, card etc ) then under recently amended Consumer Credit Act rules, the debt is unenforceable. Whilst the loan wouldn't have been written off , the bank would have had to produce the Agreement in able to have the debt enforced through a CCJ. Did you attend the court wherein the judgement was granted?

[ammani]

Hello Welshcakes, thanks for your kind replies.

I am so fed up with all this.

It seems i had 3 accounts with them, a personal loan, personal account and business account.Payments for the loan were taken from my personal account, the business one was never used. When they filed the CCJ, for the loan, they combined the loan account with the current account, and put them on the CCJ under the account number for my current account! They did this as had an overdraft amount on my current account, because they still tried to take payment for the loan, once i had closed the account.So they put the 2 amounts together.

The charges i am claiming are for my current account.The balance on the loan was paid of in March this year and i have a letter to confirm that. It has account number for current account on it. I managed to get account number of loan, it is different. And now they say they will send me copies of the loan account ledgers, but as they already sent me credit agreement, at the time, they cannot send me another, but only copy!

As to closing the loan, this came about as when i separated from my ex, i was not able to pay the monthly payment on the loan, so i asked them to help me. I had in my hand one of their brochures stating that at such times they would hold off payments for 3 months till you were on your feet again.But the woman i saw, said they could not do that with me, and that i would have to close the loan, and re open it! She was very insistant about this. At the time i was not really sure what they meant, but as it would bring down my monthly payment, agreed to it. It seems they closed the loan, and then sold me another loan to pay for it, but also added 1500 of finance charges on top. If this isnt irresponsible lending, i dont know what is.

At the time i was also trying to get the CCCS to arrange a plan with all my creditors for me.I have no documents of this now, but have contacted CCCS and they are going to send me all documents pertaining to all my creditiors.

I have found agreement with Barclays though, and this was dated 19th December 2001. They defaulted me after this and the CCJ was served 11th October 2002.It was so unfair as kept in regular contact with them, and tried to get things sorted at all times.

I never recieved a loan agreement for either loans, and when i was at my divorce finacial hearing, had to get Barclays to give me a copy of it, to show my ex also signed the agreement.

No i didnt attend the court hearing, i wish i had known what i know now, as would have contested it. It was the CCCS that told me to just agree with it!! I thought that this was the last measure, when a company could not get back their money. I was paying them monthly throught the CCCS!!

Just called the court about another claim i have in the court, to be told that all cases have now been stayed pending outcome of OFT test case! So now really annoyed as banks have once again, had their way.

[welshcakes]

Hi ammani

Okay, so we are all looking at the same picture, is this correct;

1) You had 3 separate accounts but we can disregard the business account as not part of this dispute;

2) You already had an existing Current Account when you subsequently acquired a (joint) Loan Account - they were opened at different times, had different Acc Numbers and the Loan Acc had a separate CCA which you both signed;

3) You couldn't keep up the repayments on Loan Account and intended to utilise their 'repayment holiday' which allowed for 3 months hold on payments however when you applied, Barclays advised that it was not available and that you needed to close down the existing Loan Account;

4) Upon doing this, the outstanding amount of the Loan was transferred to your Current Account and the T&C for repayment of the amount changed to allow lower monthly repayments;

5) Furthermore between the timing of closing the Loan Acc and the Loan appearing on your Current Acc (Dec 2001), £1,500 had been added to the outstanding amount but you did not sign anything and do not therefore know what this additional amount represents;

6) Meanwhile, you are working with CCCS to arrange a payment plan regards you personal creditors;

7) The CCJ was made against your Current Account (at that point with Loan facility) for failing to make agreed payments despite you're having entered into a Debt Management Plan via CCCS through which Barclays as a creditor were being paid.

Hopefully that's all correct.

You are awaiting/need to request :-

a) Information retained against the original Loan Account (before it merged with your Current Acc);

b) a true (showing signatures) copy of the original Loan Agreement. Do you not have the copy Barclays sent you as part of your divorce papers?;

c) a true copy of the 2nd Loan (the one where you agreed to a new Loan to be added to your Current Account). Barclays are obliged to send you a copy of this as it has been active within the last 6 yrs;

d) A S.A.R - (Subject Access Request) from CCCS;

e) Copy of the Court Judgement.

If you entered into a replayment plan with Barclays (as a Creditor) via CCCS and Barclays agreed to it AND you kept up the agreed monthly payments, then the bank wrongly filed for default and the court likely was not provided with the full picture (ie probably told you weren't making payments, nothing about CCCS etc).

This being the case, you can apply to have the Default removed as part of your claim.

I presume that you had penalty charges against your Current Account before Barclays further burdened it by sticking on the Loan (plus £1.5k unknown charge).

Hopefully once you have copies of the two loan agreements, you can identify the £1.5k. Write a letter to Barclays ensuring they know they only have xx days to furnish you with the information. Let them know you will take them to court if they fail to do this.

[ammani]

Hello Welshcakes,

thanks again.As to the first 3 on your list, they are correct.

4) the loan wasnt transferred to my current account, they only did this for the CCj to recover the charges on both accounts.I just used my current account to make payments to the loan account.

5) The £1500 was finance charges for the 2nd loan they opened for me.They closed the first, and opened a 2nd to pay the 1st!! Never did understand why.I did sign for this loan, but was not told i would also incurr these charges.I would never has signed the agreement if i had been told. The woman manager was very forceful in the fact that this was the only way i could get my payments reduced.

6) Barclays had agreed to payments through CCCS,they defaulted me afterwards and also gave me CCJ.

7) CCJ was against my loan, but they had bundled overdraft amount in with it, plus court costs which were £250.

I am waiting for information retained against both loans taken out, true copies of the original loan agreements, and agreement for current account. My lawyers lost all information given to them, concerning my finances and creditors!!

CCCS are sending me copies of information about all my creditors.And i have 2 copies of the court judgement, as i went back to the court and asked them to reduce the monthly payment.

Hope this clarifies things a bit. I am wondering about seeking legal advice about the legalities of the CCJ, as was in an agreement at the time. Also about the pressure that was put on me, to open another loan, when i could not afford to apay the first!!

The default has now gone from my credit report as the 6 years were up in July 07.

[ammani]

Updating this thread, i have now a court date for the 10th Oct 07, to decide if the case should be stayed or not, as i contested the stay. Could someone advise me on what i need to take with me. I have seen section about stays, but am not sure what to put as an argument against stay being removed. I have copy of human rights act, and copy of BBC'S page on OFT saying case may not go to court after all, and copy of my monthly out goings.Will this be enough?

[slick132]

Hi Ammani,

Theres a forum you should look at here in the Consumer Forums, General Section - http://www.consumeractiongroup.co.uk...d-pending-oft/

Have a read, particularly the Stickies at the top of the forum.

Slick

[ammani]

Hi slickwilly132,
many thanks for the links. I have managed to read some of them, and am getting some papers sorted out. I will plead a case of hardship, as i am a single parent of 2, paying a mortgage and on tax credits.Will also mention these charges were on a loan i was forced to take out, by Barclays, against my wishes. I had originally gone to them requesting to bring down the monthly payments on the loan i had already taken out, as i was going through a divorce,and couldnt afford the monthly payment. They said they couldnt and that i would have to take out another loan, or be faced with a CCJ. They have not produced agreement for 2nd loan when requested, and served me with a CCJ, while i was paying them monthly through the Consumer Counselling Service, which they agreed to! I am livid about it, as have had 5 years of hell because of CCJ.

[slick132]

Ammani,

Your case for lifting the stay on the grounds of hardship may be stronger if you can show they were taking charges out of the account into which your family benefits were being paid.

Results to date show only very limited success with stays being lifted but I wish you well for the hearing.

Have you used these links - http://www.consumeractiongroup.co.uk...ml#post1046820 and Allocation hearing witness statement

Also have you sought advice in the General Debt forum - there's great help on offer there with regard to CCJ's and CCA matters. I'll see if somone from there can take a look for you - to save your posting the history again.

Slick

[rory32]

If the court won't lift the stay the FOS should look at your case as they have said they will still deal with cases of hardship. Also you should be saying to the bank (if you haven't done already) that this is a case of hardship.