Thread: MamaKitty v Barclays ***WON***

Hellooo!

Right, so far I have sent an initial letter, which was sent before I found this wonderful forum, so it was a little woolly:

14th November
Over the past six years, you have charged me for exceeding my agreed authorised overdraft limit. It has come to my attention that this is unlawful at common law, and under statute and recent consumer regulations.
In the terms of the contract which you agreed to at the time that I opened my account, it is implied that you will conduct yourselves in a manner which complies with UK law.
Unless you can prove that they merely cover your administrative costs, I require full repayment of these charges, which I calculate at £1785.
If you do not comply fully within 14 days, I shall begin a claim against you for the full amount, plus interest and costs, plus I shall submit a complaint to the Information Commissioner.

Copied from the article on Motley Fool.

I received a standard letter back, saying:

21st November
Sorry you are unhappy with the charges you have incurred. Your comments are receiving attention and one of my team will contact you as soon as possible.

May I take this opportunity to explain that whilst we endeavour to respond to you within the timescale outlined in your letter, we cannot guarantee that we will do so. Sometimes it does take longer to fully investigate a complaint. However we do aim to find a solution within four weeks. If we are not able to do so, we will always write to you explaining what is happening. A full report or an update on our progress will be sent to you within eight weeks.

And a bit of waffle either end, obviously.

I didn't put in any deadlines to the original letter, but I'm fairly sure that the response is just time-wasting in the hope I'll lose interest. My plan is to reply with this letter:

I refer to your letter of 21st November, 2006. Thank you for acknowledging my letter so promptly, your attention on this matter is much appreciated.
I note that you mention that a report or update on your progress with this investigation will be sent to me within eight weeks of the date of your letter, but that you aim to find a solution within 4 weeks. I do not consider 8 weeks to be a reasonable time frame, I therefore give you 14 days to reflect upon my letter and respond positively and unconditionally, advising me of a definite date when payment will be forwarded in complete settlement of my claim. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.
If you do not respond, or you 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. After that, there will be no further communication from me and I shall issue a claim at the expiry of the second deadline.

Do you think that sounds okay? I'm really unsure of the legal issues surrounding this so don't want to shoot myself in the foot by doing something daft.

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Wow this place is busy!

I never sent that other letter, but I got a response to my original letter this morning, offering me £850 settlement.

May i say how sorry I am to learnt hat you feel the bank charges you have incurred are unfair. In your correspondence you have referred to elements which you feel support your claim. Barclays is aware of the information you have drawn to our attention. I must inform you, however, that we disagree with your view.

When an account is opened with us, our customer is provided with a copy of the terms and conditions relating to the use of their account; including details of our charges. This information clearly explains our obligations to our customers, as well as their obligations to us. if we make any changes to the terms and conditions, we provide details of these changes to our customers in line with the Banking Code. Details of our terms and conditions, along with our charging tarif, can be obtained at any of our brances, or via our internet site, www.woolwich.co.uk/barclays.co.uk [a typo? are they ganging up on us and fighting our c&p letters with their own?!]

Despite my comments above in relation to your views, on this occasion, and without any admissions of liability, I am willing to offer the sum of £850 towards the total amount you are seeking. This is with the cost and inconvenience inherent in a further dispute in mind and is intended as a gesture of goodwill, in full and final settlement of your complaint. if you would like to accept my offer, please sign and return the enclosed form to the above freepost address. I will arrange for the payment to be credited direct to your account within seven working days of recepit of your acceptance at this office.

If you wish to discuss this letter, or you feel there are further issues I need to consider, please contanct me on ***********. If you are dissatisfied with my proposal for resolving your complaint you may ultimately be eligible to refer to the Financial Ombudsman Service.

Sent off my lba this morning, recorded elivery, so fingers crossed! I hope mine goes through before they're desperately flooded! I'm so glad I found you guys when I did! Wish it had been a little sooner, but hey!

So I'm looking at starting the court process the day after Boxing Day! Shame not to have the money by Christmas, but at least I might get a big fat cheque for a birthday present!

Right, nothing from Barclays so I'm just going through the MoneyClaim site now, working my way through very gradually with lots of references back to here!

I feel bad not giving them any leeway over the festive season, but I've had enough charges over Christmas and other holidays so I'm not feeling that bad! I'll let you know how I get on with MCO.

I'm really confused about the MCO application. In the library template it says that you should not proceed unless you've sent a schedule of charges including interest to the bank, but in the step-by-step guide, it says not to include interest until the MCO application stage.

Can someone explain for me, please? I don't want to faff around with another letter and wait even more time, so I'll continue to follow the step-by-step guide and just add the interest to my claim, but some advice would be great about now!

Thank you for taking the time to reply, that really helps! I've already filed my claim with MCOL, so I'll get my schedule of charges and interest spreadsheets straight then send those off.

That's a good tip about recorded delivery, at least it's harder for them to claim it was never received! It's frustrating that their money-collection devices are so well organised and automated, but they're so disorganised and hapless when it comes to receiving letters requesting refunds.

Right, I've noticed that on my MCOL my claim has been acknowledged by Barclays. I'm so disorganised, I still haven't sent off anything like the schedule etc, just the MCOL. Do you think I still need to or shall I just leave it as it is until I get a court date etc?

Right, I sent off my schedule of charges with interest added yesterday, recorded delivery. The deadline for them to submit their defence is today, and I've checked MCOL and they've submitted it (not sure when) so I guess I need to wait for the aq and find out which court we've been allocated to. I was hoping it wouldn't get this far! Just off to check the info about the AQ...

Any comments or advice would be appreciated! I'm assuming that the AQ will be sent out as a matter of course now they've submitted their defence? I assume I don't need to do anything.

I got my aq on Friday, although it was delayed, picked it up today because the full postage hadn't been paid, surely courts send out enough letters that they know what a large letter looks like by now?! Anyone know if I can add the £1.23 to my costs or is that being petty?!

They attached a copy of Barclays defence and it looks really scary, particularly the threats about charging me for 'costs incurred' which won't necessarily be limited to the administrative fees involved when I go over my OD limit. I think I'd give up if it wasn't for this place and all the successes. Got to fork out another £100 in court costs with the AQ too, this had all better be worth it!

Right, I sent off my aq today, recorded delivery, having photocopied it first. I didn't attach anything, just followed the guidelines on here and wrote that it should take an hour. I hope it's all in order. I guess I just sit back and wait for a court date and hope that they settle beforehand. Still, the court it's allocated to is really close to me so no worries really.

I'd also like to post the wording of Barclays defence because it's really scary and I'm hoping that I might get some reassurance and hopefully reassure others too:

1. To the extent it is alleged that the claimant incurred bank charges on her account for unauthorised borrowings (whether unpaid fees for returned cheques, "paid referral fees" or any other such fees), the defendant puts the claimant to strict proof of each charge and the date thereof.
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 referral fee" where the defendant pays an amount (either by compulsion or election) which causes the account to become overdrawn - £30 per item (previously £25).
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 per item (previously £30).
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 her authorised overdraft limit).
4. If and to the extent it is the claimant's case that the 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 the terms applying to the account and that the contractual entitlement to debit charges from the claimant's account constitutes a liquidated damages clause, the same is denied. The charges constitute payments to claimant agreed to make by reason of the terms and conditions of her 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 relevant 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 (particularly but without limitation to, paragraph 1(e) of Schedule 2), or are in breach of s.4 of the Unfair (Contracts) Terms Act 1977 (or any other provision), or are unreasonable within the meaning of s. 15 of the Supply of Goods and Services Act 1982 (or indeed any other provision).
6. Therefore it is denied that the charges were unlawfully debited from the account.
7. If and to the extent the Claimant incurred charges on her 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 her failure to make payments to being the balance of the account back into credit.
8. It is averred that the said charges and interest are and remain lawful and enforceable and that the defendant was entitled to debit the same.
9. 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 28th December 2000 are not recoverable because they are time-barred under the terms of the Limitation Act 1980 in that more than 6 years have elapsed since the accrual of the cause of action.
10. In the alternative, and without prejudice to matters stated above, if (which is denied) the said charges and interest of 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, then the defendant has nonetheless suffered loss and damage as a consequence of such breach of contract in allowing the account to go into unauthorised overdraft. Accordingly, in the event that the defendant is unable to rely on its express entitlement to enforce the charges as set out at paragraphs 2 to 3 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.
Barclays Bank PLC

I sent that to MCOL a week before the defence was submitted by Barclays, do I need to send another one to my local court?

Right, I've sent off the spreadsheet thing with the list of charges, dates and interest etc. Sent a copy to the court and one to Barclays. Should have added a congrats card for their record profits, ah well, I'll congratulate them when they face me in court.

One thing I wondered, I've now paid over £200 in court fees, do I add that to the schedule of charges or will that automatically be added to my claim against them?

I still haven't heard from the court since I submitted my aq, it's been over 2 weeks now. Hopefully I'll get something soon.

I'm really worried. I was just idly flicking through some threads to get an idea of what to expect next and I found a whole load of new info about the aq that I hadn't seen before. When I was filling it out I looked at the AQ guide and the Step by Step guide, quite reasonably, I thought. Then I found that thread about new info on the AQ, with a whole statement to put in the info section at the back, but I put none of that, I followed the AQ guide literally and just put 'I expect this to take no more than an hour' or words to that effect.

How badly have I ruined my chances of a successful claim? I'm really worried about this, is there any way that the Step by Step guide and the AQ guide could have a link in to that other AQ info? I can't be the only one stupid enough to think the Step by Step guide has all the info I'll need. Seeing as the board is so busy, it would help a lot of other people who might be stuck and get missed.

I'm just going through the court bundle now, to stay ahead of the game, but it looks really daunting. I've learned my lesson though, I'm not going to rely on the poor 'search' function on the board, but will carefully comb through each info section and individual threads to get a proper idea of what I should be doing.