Thread: Fred_Funk vs Barclaycard

Guys

Hi. I've been around for a while - thus far my efforts have primarily concerned bank charges - but this is my first post in the Barclaycard forum.

Needless to say, I'm pretty well versed in all the issues regarding bank charges and I've done a fair bit of reading on credit card charges to which, clearly, many of the same principles apply.

I had a Barclaycard acount from 1995-2000 and, fortunately, I still have all the statements so I haven't had to go chasing them.

I'm aware Barclaycard will, in all likelihood, argue the statute of limitations applies but confident I can demonstrate this is not the case. I do, however, have one or two other questions with which I would appreciate the forum's advice.

(1) I've read in a few places that Barclaycard say they didn't apply any charges before 2001 yet I have 'out of order fees' - ranging from £10-£40 - dating back to 1995. It seems to me that, whatever Barclaycard might claim, these are, clearly, fees and, as such, unlawful... would anyone disagree?

(2) In addition to the return of the fees, it's my understanding there is - in light of Sempra - a clear basis for asking for compound interest, at the rate charged by Barclaycard, on the basis of unjust enrichment. Again, unless that is, anyone knows better?!

(3) If I'm justified in asking for compound interest on the fees unlawfully levied on my account, should I compound the interest between: (a) the date of the charge and the date of settlement, or; (b) the date of the charge and the date on which I my Barclaycard account was paid up in full?

(4) The consensus seems to be that I should send my lba to: Barclays Bank Plc (trading as Barclaycard), 1 Churchill Place, London, E14 5HP. Would everyone agree that, in the first instance at least, that is the best address to correspond to?

Thanks in anticipation of your help and co-operation
Fred-Funk

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Just about to get going on this again by sending a prelim letter to Barclaycard. With that in mind, I'd welcome any thoughts anyone might have.

Thanks in anticipation
Fred_Funk

Hi Fred,

1) I agree and had similar chgs for earlier years

2) Have to agree again AFAIK

3) Not my forte but the Advanced Spreadsheet for credit card claims should d/w this.

4) That's fine but I'd send to the BC address on the state't first off.

It won't be easy, especially if the WHOLE of your claim is for beyond 6 years. Couple this with the fact that you want CI which BC are not agreeing to pay without going right up to a court hearing date.

If it goes into court, you may get the right judge or you may not, in which he could throw out the claim because of 6+ years or CI.

Thanks slick132.

Can anyone point me in the direction of a preliminary letter?

I did read elsewhere that you could just adapt the bank charges one. Without wishing to appear dumb, musn't the argument here be slightly different otherwise, one assumes, credit card claims would also be stayed en masse pending the outcome of the high court case.

Here's hoping someone can enlighten me - and, don't forget, a link to any good prelim letters would be very much appreciated. ;-)

Thanks in anticipation
Fred_Funk

Hi Fred,

Just adapt the Prelim bank chgs reclaim letter and fire it off to BC. After 14 days, adapt and send your lba.

If they haven't offered to settle in time File at court on From N1 using the new BC POC which you'll find in the stickies at the top of the BC forum.

Guys

What do you reckon to this prelim letter? As ever any comments, positive or otherwise, gratefully received.

REQUEST FOR REPAYMENT OF CHARGES

Dear Sir/Madam

Account number: XXXX XXX XXX XXX

I am writing to request you refund the charges which you levied from the above account between September 1995 and August 2000.

I have recently come to realise the fees you applied to my account in relation to late payments and exceeding my credit limit substantially exceeded your costs and amounted to penalty charges which are unlawful in common law, statute and consumer regulations and unfair according to the Office of Fair Trading report of April 5, 2006.

If you dispute this then you will, please, let me have a full breakdown of the costs you incurred, in order to reassure me that your penalties were fair and just. With this in mind, I must draw your attention to the terms of the contract which we agreed to when I opened my account. It was an implied term of contract that Barclaycard would conduct itself lawfully and in a manner which complied with UK law.

I calculate that between XXXXXXXXX XX, XXXX, and XXXXXX X, XXXX, you took £170 in unlawful fees. In addition, I also claim compound interest as an equitable remedy to Barclaycard having, contrary to common law, profited from unjust enrichment as a result of these charges. The standard rate of interest set by Barclaycard over this period was XX.XX% therefore this rate is added to the above amounts and will continue to accrue until this claim is settled. I calculate the contractual interest element at £XXX.XX (to February 29, 2008), making a grand total of £XXX.XX - see enclosed schedule of charges.

As I am sure you are aware, the statute of limitations is not applicable in situations, such as this one, in which an unlawful act was deliberately concealed . Furthermore, the current Office of Fair Trading test case concerns current accounts and has no bearing on credit card claims.

This letter is not a complaint and I do not expect it to be treated as such. Rather, I expect a positive response within 14 days accepting, unconditionally, my request in principle and letting me know a date by which I will receive payment - by cheque, directly to me.

If you do not respond, or do not respond positively, within this time period, I shall send you a letter before action giving you a further 14 days in which to reflect. I believe that these deadlines are more than sufficient for a large company such as Barclaycard, with dedicated staff and departments.

After that, there will be no further communication from me and I shall issue a county court claim at the expiry of the second deadline.

Yours faithfully

Fred_Funk

Enc: Schedule of charges and calculation of interest

Thanks in anticipation
Fred

Hi Fred,

Letter looks fine - send off to BC by Rec'd Del'y and keep the receipt safe.

At this stage, don't include the s.69 Statutory interest on your SOC - this only comes into play when you file your claim at court.

Okay guys, let me bring you up to speed...

Finally got around to sending my Request for Repayment of Charges on Friday, March 7, and having, thus far, not received any response whatsoever intend to get a letter before action in the post before the end of this week.

With that in mind, I'm gonna post my LBA below and would, as ever, be graterful for any thoughts anyone might have...

LETTER BEFORE ACTION

Dear Sir/Madam

Account number: XXXX XXX XXX XXX

You have not responded to my letter of March 7 in which I requested you refund the charges which you levied from the above account between September 1995 and August 2000.

In light of that, I maintain that the fees you applied to my account in relation to late payments and exceeding my credit limit substantially exceeded your costs and amounted to penalty charges which are unlawful in common law, statute and consumer regulations and unfair according to the Office of Fair Trading report of April 5, 2006.

With this in mind, I must draw your attention to the terms of the contract which we agreed to when I opened my account. It was an implied term of contract that Barclaycard would conduct itself lawfully and in a manner which complied with UK law.

As I indicated in my previous letter, I calculate that between XXXXXXXXX XX, XXXX, and XXXXXX X, XXXX, you took £170 in unlawful fees. In addition, I also claim compound interest as an equitable remedy to Barclaycard having, contrary to common law, profited from unjust enrichment as a result of these charges. The standard rate of interest set by Barclaycard over this period was 1.65% therefore this rate is added to the above amounts and will continue to accrue until this claim is settled. I calculate the contractual interest element at £XXX.XX (to March 7, 2008), making a grand total of £X,XXX.XX - see enclosed schedule of charges.

As I am sure you are aware, the statute of limitations is not applicable in situations, such as this one, in which an unlawful act was deliberately concealed . Furthermore, the current Office of Fair Trading test case concerns current accounts and has no bearing on credit card claims.

I now require immediate repayment in full of this money - by cheque, directly to me. If you do not comply by Friday, April 12, then I shall, without further notice, begin a claim against you for the full amount as well as well as my costs.

Furthermore, I shall submit a complaint to the Office of Fair Trading on the basis that you have failed to comply with its direction of April 5, 2006, and are, therefore, not a ‘fit and proper person’ to hold a consumer credit licence under the Consumer Credit Act 1974.

Yours faithfully

Fred_Funk

Enc: Schedule of charges and calculation of interest

Hi Fred,

Letter looks fine but see here for more re CI element - http://www.consumeractiongroup.co.uk...light=goldfish

Just as I was about to send my lba, I received what appears a fairly standard 'bog-off letter' from Barclaycard...

Dear Fred_Funk

FINAL RESPONSE

I write further to the complaint you raised with regard to the default charges applied to your account.

I am sorry that this matter has not been resolved to your satisfaction. I have reviewed your complaint and detail my findings below.

Our understanding of your Complaint:

You feel that the charges incurred on your Barclaycard account are unfair and you have requested a refund of the charges plus interest.

Background to the events leading to your complaint:

Following publication of the report by the OFT, Barclaycard reduced our fees to £12.00 with effect from August 2006.

Having checked our records, I can confirm that you have been charged fees totalling £170.00.

Summary of our Internal Investigation:

In the circumstances, as a gesture of goodwill, I have credited your Barclaycard account with £170.00 representing the charges and £13.60 interest, calculated at 8%. However, we believe our charges are fair and reasonable. Please can you contact me with your bank details so I can process the refund for you.

I am sorry if this is not the outcome you wanted, however, I hope my explanation is helpful. For the purposes of the Financial Ombudsman Service you may regard this letter as our "Final Response" to your complaint.

You will find more information about the Financial Ombudsman Service in the enclosed leaflet. Please note you have six months from the date of this letter to refer to the Financial Ombudsman Service for investigation.

Yours Sincerely
Melanie Sweeting
Customer Relationship Manager

Bring it on! ;-)

I'm now more confident than ever of getting back everything I'm asking for from Barclaycard. Their most recent correspondence is, quite frankly, laughable.

Why would they want to give me £170 as 'a gesture of goodwill' if, as they claim, their charges are 'fair and reasonable'. Clearly, they know as well as I do that they haven't got a leg to stand on.

Be that as it may, I'm averagely brasic at the moment and am keen to get my money ASAP. With that in mind, while I have no intention of accepting Barclaycard's goodwill gesture (or anything less than I'm asking for), I thought I might just give them a call in the morning to advise them of my intention to file a claim in the afternoon in the hope that it might spur them into action. I might also mention court costs and the possibility of my also asking for compensation for the time I have wasted in pursuit of this money.

I appreciate they will probably continue to call my bluff but, the way I see it, I have nothing to lose by this - unless, that is, anyone disagrees?!

One other thing that struck me as a little strange was their offer to pay interest at 8 per cent, which, one assumes, is intended to replicate the s69 interest I could expect were this to proceed to court.

The thing is, the s69 interest I would get from the court would take account of the time over which Barclaycard have deprived me of my money, yet Barclaycard have made no allowance for this.

Are they really this stupid or do they think I am?!

And secondly, why if, as they suggest, their offer is merely a gesture of goodwill are they offering any kind of interest whatosever on top? Doesn't that rather give the game away?!

Fred_Funk

Hi Fred

I think the reason they're offering your chgs back + 8% (s.69 int't) is that they know you have a chance of getting it back if you file at court. And they want to avoid CI claims.

However, please read here - http://www.consumeractiongroup.co.uk...-very-old.html - where Lancasterchelsea's claim was struck out of court before being heard at all.

Do you agree with the chgs figure of £170 ?

Your claim is by no means straightforward as it's all over 6 years and includes CI. Depending on your luck, a judge could strike out your claim because it's Statute-Barred or rule against the CI element of your claim.

In either event, because BC have already offered you more than they need (by including the 8% s.69 int't), you could be faced with BC claiming their costs against you.

I'll ask for a second opinion here from another of the Site Team but, IMHO, you should think carefully before you issue a claim on this.

But my point is they haven't offered me s69 interest (though it wouldn't surprise me if they're stupid enough to think they have done, lol).

s69 interest, ie 8% compounded over the course of the last seven or eight years, would come to an awful lot more than £13.60.

Clearly, £13.60 represents 8% of £170 but doesn't take into account the time over which they've unlawfully had my money. Had Barclaycard offered me s69 interest - which I guess would have been in the region of an additional £200 or £300 - then I'd have contemplated accepting the offer.

Point taken Fred re the s.69 int't not being calculated by reference the the charges' dates.

Wait and see what advice follows.

Originally Posted by slick132

Point taken Fred re the s.69 int't not being calculated by reference the the charges' dates.

Wait and see what advice follows.

Okay slick132, thanks. I don't see why I shouldn't proceed but look forward to hearing what you have to say all the same.

Originally Posted by Bigmac versus

Hi Fred Funk.

They have offered the full amount you have requested excluding the compound interest.

A couple of things stand out here, one being that you could lose your case as they have offered you the full amount of the charges you are claiming.

In claiming compound interest you are at a greater risk of loosing but add to that charges over 6 years and you are up against it.

Unjust enrichment may well be used against you.

I would calculate the s.69 interest which will make a considerable difference to your claim and see if they settle for that.

This is only my opinion but if you continue to court you may well end up worse off.

Thanks for the advice. However, while I stand to be corrected, I'm not sure I agree with it. Let me explain my thinking and perhaps you guys could tell me what you think.

(1) Barclaycard have only offered me a fraction of what I am asking for. I think Sempra provides a legitimate argument for asking for asking for compound interest as an equitable remedy to Barclaycard's unjust enrichment and, that being the case, don't see what relevance it is that Barclaycard have offered "the full amount you have requested excluding the compound interest", given this is a substantive part of my claim.

If I proceeded to make a court claim, it wouldn't, IMO, be a vexatious one for, as I've explained, I think there are now entirely legitimate grounds for asking for compound interest on this basis.

(2) I appreciate you can't ask for s69 interest before you get to the stage of making a court claim and that if that were what I was doing my claim would, in all likelihood, not be looked upon favourably. However, that isn't what I'm doing.

I've asked for compound interest on the basis outlined above. Barclaycard have rejected this claim and instead offered me what I can only assume is supposed to be s69-type interest - but has been miscalculated - as an alternative (in the hope that I will accept this rather than proceed with a court claim).

(3) Had the 8% interest Barclaycard offered been compounded - rather than calculated on the basis of simple interest - then I might have been minded to accept it. I'm averagely hard-up at this moment in time and, for the sake of a few hundred pounds, a whole lot more time and effort, and the possibility of my claim for compound interest on the basis of Barclaycard's unjust enrichment/Sempra not being accepted, I would probably have biten the bullet.

(4) There is now a well-rehearsed argument as to why the statute of limitations, relating to charges over six years, shouldn't apply. I appreciate Barclaycard may argue otherwise were I to proceed to court but, it seems to me, extremely unlikely that they would succeed in having my claim dismissed on this basis.

(5) In these circumstances, I'm minded to go back to Barclaycard and to say that I will, as a compromise, accept an offer equivalent to my charges plus proper s69 interest in order to bring an immediate resolution to this dispute but that otherwise I am happy to proceed to court.

Does this sound like a reasonable course of action?!

Thanks in anticiaption of your help and advice
Fred_Funk

Slick132 has referenced my Goldfish claim in post #9. In that claim I did exactly what Fred has done here - compound interest in the basis of Sempra and some charges over 6 years old. I went as far as filing the claim in court and GF have offered me the full amount including court costs in settlement (just a couple of details to iron out).

If it ever actually got to court, you would need to be well prepared to avoid the issues raised by Bigmac versus. But, having said that, I think there are good solid reasons why you should win on both counts provided you are well preapred with your arguments. However, the chance of it actually getting to court are very small. My advice would be to stick with it at this stage.

Hi Fred,

Thank you for your well reasoned analysis, most of which I agree with.

Regarding item (4) above, whilst the s.32 legislation may be well-suited to clearing the Statute-Barred hurdle, that didn't stop Chelsealancaster's judge throwing out their case.

I think sending BC, without prejudice, a settlement figure based on chgs + properly date-referenced would be a good compromise to get a quicker resolution.

If they refuse to play, carry on to court for the Sempra-based CI and hope for a good judge if you get that far.

I'm back and, after a couple of months dealing with other things, I'm ready to pursue Barclaycard for what I maintain they owe me.

Financial necessity dictated that I accepted the £183.60 they offered me back along though I made it abundantly clear that, at least as far as I was concerned, this only represented a partial settlement.

With that in mind, this is the LBA I have written and, subject to your thoughts, would like to get in the post to Barclaycard by close of play on Friday...

letter before action

Dear Melanie Sweeting

Account number: XXXX XXX XXX XXX

I am writing further to your correspondence of April 1, 2008.

As you will be aware, I recently accepted a partial settlement of £183.60 in respect of my claim for £1,105.63. However, as I made clear at the time, this falls a long way short of the sum to which I believe I am entitled and, this being the case, I would like to inform you of my intent to initiate court proceedings for the outstanding sum of £922.03.

I maintain the fees you applied to my account in relation to late payments and exceeding my credit limit substantially exceeded your costs and amounted to penalty charges which are unlawful in common law, statute and consumer regulations and unfair according to the Office of Fair Trading report of April 5, 2006.

Between September 26, 1995, and August 1, 2000, you took £170 in unlawful fees. In addition, I also sought compound interest as an equitable remedy to Barclaycard having, contrary to common law, profited from unjust enrichment as a result of these charges. For this I claim the authority of Sempra Metals Limited (formerly Metallgesellschaft Limited) (Respondents) v. Her Majesty's Commissioners of Inland Revenue and another (Appellants), House of Lords [2007] UKHL 34.

Should any court action go to allocation, I will be seeking an order from the court for you to disclose the actual costs to Barclaycard due to breaches of contract. Knowledge of the actual cost base will allow the court to determine if the charges levied were in excess of actual costs and, in turn, whether my claim for compound interest as an equitable remedy to Barclaycard‘s unjust enrichment should be allowed.

As I am sure you are aware, the statute of limitations is not applicable in situations, such as this one, in which an unlawful act was deliberately concealed. Furthermore, the current Office of Fair Trading test case concerns current accounts and has no bearing on credit card claims.

If I do not receive a positive response within seven days, ie on or before July 4, accepting, unconditionally, my request in principle and letting me know a date by which I will receive payment - by cheque, directly to me - I shall issue a county court claim without any further communication.

Yours sincerely

Fred_Funk

... as ever, everyone's thoughts gratefully received.

Fred_Funk