mackerel vs barclaycard! ***WON***

[slick132]

Hi Mack,

 

I'd send off another email.

 

Surely worth a shot.

[mackerel]

Got a reply:

 

Hello Mackerel

 

I have received your change of address as well as your Schedule of Charges. I am little confused by you Schedule. You do not seem to deduct the refunds that have been given back to you? Such as £842 on JUNE 08 and £378.00 on the MAY 08. Some of which paid off your outstanding balance and then you asked for £756.07 to transferred to your personal account on or around 15 January 2009. Can you explain to me how this effectively does not appear on your schedule you dates 12 February 2009?

 

 

Kind regards

 

Sandy Dewolfe

Ok, so when they refunded the charges (and charges alone), my account was overdrawn. When the charges (1200 odd) was refunded into the account (the 842 + 378 ) it left my barclaycard account with around 750 left in it. A few weeks back i transferred that 750 into another account.

 

So in total, i have around 1200 of charges refunded. The latest SOC placed the interest on the charges at around 1500, which is what i am currently pursuing. How can i say this to Dewolfe? I feel like i'm trying to be confused.

 

Should i send another schedule, outlining the refunds already given? I wouldn't have thought it would have been too difficult for them to simply see the total amount i am pursuing and simply deduct the amount they've refunded off of it, unless i'm missing something?

[slick132]

Hi Mack,

 

Crikey, it's not rocket science. Can't Sandy take your total figure and deduct what ever they've refunded to date, to give a net refund now due to you.

 

I guess Sandy may also be concerned that adjustments may be required to the int't calc'ns to take a/c of the amounts already refunded. But what the hell, she works for a bank and I bet they have loads of really big calculators.

 

I'd tell Sandy you now need a refund of the Feb 09 SOC figure less amounts refunded to date of Blah = refund now due of £xxx. On receipt of this amount, you will discontinue your claim.

 

Don't forget to include court fees to date.

 

If Sandy is not happy with these figures, let Sandy suggest an alternative.

[mackerel]

Hi Mack,Crikey, it's not rocket science. Can't Sandy take your total figure and deduct what ever they've refunded to date, to give a net refund now due to you.

I know!!!

But what the hell, she works for a bank and I bet they have loads of really big calculators.

hahaha @ big calculators.But i was thinking about that last night - if they can argue that my figures are incorrect, could the take it to court and argue on that basis, and win?

[slick132]

I dion't see that you would lose the case because of slightly incorrect figures.

 

This is something that can be negotiated on if necessary. Just like has happened so far - you've said to BC they owe you so much and Sandy says the amount you want is wrong as it doesn't account for refunds already made.

 

So you adjust the figure accordingly and ask them to settle at £xxx. If they come back to query again, you can amend if nec'y, ask Sandy to suggest what BC WILL settle at, or let it go to court if you're sure you can justify your figures.

[mackerel]

After sending another email to Sandy outlining how obvious i would have expected the "calculation" for the new amount to be refunded (with no answer), i have had a couple of letters from the courts in the post. Most of these have been copies of correspondance to barclaycard, but the latest letter i have to give the courts a reply by the 27th March.

 

The courts last letter to barclaycard seems to be getting quite frustrated at them;

 

Distruct Judge X has seen your fax of 6th February 2009. A month has now passed. Would you advise on the current situation in respect of this case. Please reply by 27th March.

 

The fax that barclaycard sent the courts on the 6th Feb:

I refer to the letter dated 28th January attaching the claimants proposed draft directions.

 

Due to the adverse weather conditions, Barclays only received the aforementioned letter yesterday afternoon, 5th February.

 

Barclays intend to oppose the claimants proposed directions on the basis that the claimant has no cause of action, in that, the claimant has already been refunded the charges in question plus interest.

 

As such, we have had insufficient time to prepare our response accordingly. Furthermore, Barclays is currently in the process of trying to settle the matter with the claimaint and does not wish to waste the courts time.

 

In light of the above, Barclays respectfully requests that the court agrees to a 7 day extension for the filing of our response to the claimants proposed directions.

 

what! they've refunded the charges plus interest have they??? It's true they've refunded the charges, but what i've been actively pursuing for almost the past year is the refunding of the interest too. How can they say this to the judge - isn't it blatant deception? Although my account with them is no longer open, i have the bank statements showing the refunds that they have made -and this just totals the charges alone, not the interest on the charges, or the 8% for that matter.

 

I'm going to write a reply, with copies of the emails, showing that they haven't made any attempt to settle since my last email sent a couple of weeks back. Any pointers on what to add to make it nice and legally beefy? Or perhaps i should use the copy of this fax to re-initiate email contact with sandy - but what could i say to him/her directly? Should it be different from what i send to the court?

Edited March 19, 2009 by mackerel

[slick132]

Hi Mack,

 

Perhaps email Sandy with an updated SOC suggesting this may assist, considering the court appears to be expecting BC to negotiate a settlement and not waste further court resources on a case which BC will settle before any hearing, as in other cases of which you are aware.

[mackerel]

Thanks slick.I sent him/her an updated SOC the second time i emailed it (!?! what bloody gender is he/she???), and their reply is quoted in post #102. Should i send them another updated SOC - all that will change is that the amount due will be more, and this is what seems to be in dispute in post #102 - i think they are expecting to see a SOC that has a figure showing the amount due minus the interest on the charges when they were refunded (in other words a smaller amount due to me). Problem is, i have no way of figuring this out. Is it acceptable to say to the courts, if bc dispute the amount, that my figures should be used unless bc are prepared to provide alternate figures?

A draft of what i am writing to Sandy:

I am aware that we are both due to reply to the Courts by the 27th March, and having seen a copy of your fax sent to the Courts on 6th February, have noticed that you do not wish to waste any of the courts time and would like to reach a settlement with me.Contrary to what you have written to the courts in the aforementioned fax, you have not refunded me all of the amount i have requested from the beginning of this action against you. You have refunded the charges alone, but not the interest on the charges. I have bank statements to confirm all of this, right up to the date the account was closed.

As stated in my N1, i have requested the following be repaid to me:

Charges: £ (to be entered)

Interest on charges: £ (to be entered)

Interest at 8%: £ (to be entered)

If it helps, i have attached an updated SOC (dated 20th March) to reflect the current amount due.

 

Upon meeting my demands i will be happy to cease court action.With thanks, Mackerel

Is there anything different i should say to the courts?

Edited March 20, 2009 by mackerel

[slick132]

Hi Mack,

 

Send the email to Sandy and send a letter to court enclosing a copy of it, so they can see your continued effort to settle out of court.

[mackerel]

Here's the letter i wrote to the court:

This letter is in reply to a letter sent to me by the courts dated 17th March 2009, containing a fax sent from Barclays to the courts dated 6th February 2009.

Whilst I agree and do not contend to the fact that the charges have been refunded, the Defendant has not, as claimed, refunded the interest applied to the charges. I can prove this with copies of the account statements if required.

The latest Schedule Of Charges, a copy of which is enclosed (dated 23rd March), states that the interest on the overdraft charges now stands at £1184.60, the 8% on the charges now stands at £407.78, and the 8% on the associated overdraft interest is £486.17. The figure that has so far been refunded to me does not include these values, and is why the case has been ongoing.

I do not wish to waste the Courts time on a case where the Defendant, as far as I am aware, has never proceeded to Court and has always settled beforehand. I would like to point out, however, that the last communication with the Defendant was received by email on the 26th February – almost a month ago - and despite my reply, i have recieved no communication since. Attached are copies of our communications, as well as a copy of my most recent email to the Defendant, dated 23rd March.

Does that seem ok, anything glaringly bad about it?

Also emailed sandy the above email.

[slick132]

Hi Mack,

 

Only prob I can see is you refer to int't on the overdraft although I'm sure the judge and Sandy will realise you mean "interest on the a/c".

 

In any event, all you are trying to do is elicit a further response from Sandy at BC, and I hope the email will achieve this.

[mackerel]

Thanks slick

 

Emailed them Monday, but haven't heard anything back yet. I have a feeling that they may be waiting to see what i submit to the court, or maybe they've got something up their sleeve?

[slick132]

Hi Mack,

 

I don't think they will have any surprises. This is like a big game of BLINK or CHICKEN. It will be played up to, but not into, court.

 

IMHO !!

[mackerel]

Well, you were right about the next step making them reply by email.The good news is that they've offered a settlement. Bad news is, it's a fraction of what i'm currently pursuing. An email i recieved 3 days ago:

Without prejudice

 

I have attached a spreadsheet of your charges that you are claiming. All the interest calculations and relevant days to which you are entitled to by law are included. I must bring to your attention the following. Your claim was issued on the 30 July 2008 and charges claimed can only go back 6 years from the date of the issue of your claim. They are not recoverable because they are time-barred under the terms of the Limitation Act 1980 in that more than six years have elapsed since the accrual of the cause of action. So this makes the first 7 charges on your charges schedule unrecoverable. According to your spreadsheet the value of the calculation is £458.84 for those 7 charges that you cannot claim for.

 

I also note that you have a charge for £42.40 listed for 10 June 2008. I have included a copy of your statement from that date. I do not see any charge for that amount. I do see a credit to your account for £842.40. Can you please provide proof of this charge? As your statement does not show this as a charge I further deduct £51.00 from your charges schedule. That makes up a total of £509.84 that is not recoverable.

 

At this point in time you have received three separate refunds of £200.00 on 5 April 2006 and a refund of £378.00 on 14 May 2008 and a further refund of £842.40 was made on 10 June 2008. The total sum of all the refunds is £1420.40.

 

Therefore, in order to avoid the inevitable time and cost associated for both parties in pursuing this claim further, we are prepared to settle your claim for £244.36 the outstanding amount on the charges schedule. This is inclusive of all the charges deemed outside the limitations period and the charge of £42.40 you have yet to prove.

 

Should you decide to reject the Bank's offer we stand by our position that you have received all of your charges and interest refunded to you. If this matter proceeds to a hearing we will vigorously pursue any future cost of this claim against you. We also reserve the right to disclose this letter to the Court on the subject of costs.

 

I have also attached a settlement letter. If you agree to the terms of the letter, please sign and return a signed copy of this letter to me (by fax, email or post) at the listed address within the next seven days.

After i laughed, i started to read through the spreadsheet attached. It seems that the basis that they are arguing against me is that they have refunded the charges plus 8% (which they seem to think is about £80) whereas i am arguing i want the interest as well as 8% which is calculated different from what they calculate it to be. For instance, in total i think the 8% on both charges and interest is around £900 - how can their figures be so different from mine? If i refuse this settlement, and it proceeds to court, will it come down to an analysis of how "their" 8% is calculated compared to "mine"? Also, they make no mention of refunding the interest on the charges. So to clarify, i am now currently seeking about £1900 from them - around £1000 in interest and £900 for the 8%. I am right to demand the full amount from them? Can i demand the 8% on both interest and charges if we settle outside of court?so many questions...

[d1cky]

hi there sorry to jump in on your thread, but I dont seem to be getting much help on mine. I am claiming from bc and I dnt need to do an sar because I have all my statements so im strait in with the prelim and schedule of charges, I like you are strugling with the advanced excell and was just wondering if you got ur head round it and used it in the end? thx

[slick132]

Hi Mack,

 

I know Steven's away just now so I'll comment.

 

If you think some of their points are vaild, use a new spreadsheet to calculate again.

 

So, if you didn't seek to use s32 of the Limitations Act 1980 to argue for charges older than 6 years, knock off the older ones.

 

Also, as they have refunded some of the charges, can you amend the spready to reflect this. I'm not sure how, so I wonder if you'd be better calc'ing the interest on each chge separately. Doing this you can enter the start and end dates manually. This is the one that Noomill uses - Compound interest calculator

 

Which spready are you using.

 

Are they refusing to even acknowledge that you are claiming interest at the contractual rate. This would account for the large difference in your and their figures.

 

Stay strong here - this is where they start to threaten, and plant seeds of doubt.

[mackerel]

So, if you didn't seek to use s32 of the Limitations Act 1980 to argue for charges older than 6 years, knock off the older ones.

 

What does that mean - is that something i should have been saying to them from the beginning, or is it something i can use now? Like sandy mentions, knocking off the older ones is around £500!

 

Are they refusing to even acknowledge that you are claiming interest at the contractual rate. This would account for the large difference in your and their figures.

They make absolutely no mention of the fact i am claiming interest at all. Not even to dispute it.

 

The spreadsheet i'm using is stevens spreadsheet (interestcalc.xls).

 

Is there a tutorial on using the compound interest calculator? (what are rests, start date, end date etc)

 

Stay strong here - this is where they start to threaten, and plant seeds of doubt.

It's working

[slick132]

If you haven't included arguments in your Court Bundle addressing why s.32 of the Limitations Act 1980 should enable you to claim beyonfd 6 years, on the basis of their concealment of the nature of the charges, it's too late to do this now.

 

In some cases, they'd allow this to pass, if it was a small amount but, because you're claiming the higher interest, they'll do their best to bring the claim down, or to defend it.

 

You must reply asking them why they've failed to address the issue of interest which you are claiming at the contractual rate.

 

It's up to them to come up with alternative figures or you will proceed to court and claim interest at the contactual rate, whether they agree or not.

 

Re the Compound Int't Calc'r, you just enter the date of a charge, the date of your calculation, interest rate, select 12 rests (monthly compounded) and it will give you the compound interest for the period.

 

I'm not sure when Steven's back but don't let them bully you. Stay focused and strong - they WON'T want to take this into court.

[d1cky]

wow, its amazing how much it can add up to sometimes. I just tried this calculater and for a £20 charge on the 20/2/04 at a rate of 24.9% the interest amounts to £50.55, getting in debt aint a bad way of saving a!

[brindles]

Hi.

Just makes you realise, how much they they take from us. No one minds the interest applied to money we have spent, but this is and would be continued interest applied to your account on the charges.

[mackerel]

If you haven't included arguments in your Court Bundle addressing why s.32 of the Limitations Act 1980 should enable you to claim beyonfd 6 years, on the basis of their concealment of the nature of the charges, it's too late to do this now.

 

I haven't made a court bundle yet - haven't been asked by the courts to provide one. Have read about it in other threads, but was assuming this was something the courts need to ask for. In either case, they have made no mention of it. I had read the argument about the statute of limitations being invalid because of concealement, but had no idea i had to foremention it - is it too late to mention it now?

 

I'm not sure when Steven's back but don't let them bully you. Stay focused and strong - they WON'T want to take this into court.

So even though it seems like my figures in their opinion are wonky, they will still avoid court?

 

It's up to them to come up with alternative figures or you will proceed to court and claim interest at the contactual rate, whether they agree or not.

 

Could the spreadsheet they emailed me be viewed as alternative figures? Could i pm it to you to see? This is what i meant by what it seems to come down to is whose figures the court would be convinced by - theirs or mine. Their spreadsheet seems to calculate the 8% on the charges the same as mine, but is not including the interest on the account at the rate the my spreadsheet is. For instance, the first charge, dated 25.04.02 (2530 days ago) has £34.85 interest, and 8% on the interest is £19.34. The barclays spreadsheet has a column titled "Interest incurred on a/c charges" and states it at 41 pence! wtf!

 

Seems strange, that they mention they will show this letter to the court if i decline it, yet at the top claim "without prejudice", which as far as i know, means it can't be used in court?

 

Interestingly, in the spreadsheet they give me that shows what they think the interest and 8% should be, they state the APR is 17.9% then 19.9% - on my spreadsheet i calculated it at 16.6%. I'm going to recalculate the apr on this then at 18.9%, an average of the two.

 

I have until friday to email sandy back. Going to try the compound calculator now, then review my position.

 

edit: does the compound calculator include the 8% on the charge, or is that something that needs to be calculated separately? I found that the compound calculator gives the same answer as the spreadsheet i am using without the 8% on the charges applied.

 

For instance, the very first charge:

£15 on 25.04.2002.

2532 days have elapsed.

Interest is £34.52

8% on charge is £8.32

8% on interest is 19.34

 

Compound calculator gives me, for this charge, a total amount due of 55.12 (of which 40.12 is interest). This seems to roughly equate to the Interest plus the 8% on the interest.

 

Does this mean i need to calculate separately the 8% on the charge?

Edited April 1, 2009 by mackerel

[slick132]

Hi Mack,

 

See my Pm to you.

 

Too late for this tonight so will respond tomorrow if no-one else has.

 

[the_shadow]

 

Seems strange, that they mention they will show this letter to the court if i decline it, yet at the top claim "without prejudice", which as far as i know, means it can't be used in court?

 

 

AFAIK they are correct to a point, the without prejudice means they cant use it in normal proceedings but if they win the case they can produce it to further their claims for costs, the same could be said of any letters you head with "without prejudice"... I've seen headings of "without prejudice save for costs" with better describes it though.

 

For the compound calculator that noomill pointed us all to:D just put in the principle (charge amount) the date it incurred, change to 12 monthly breaks, click the 360 days and enter the current date then calculate. This gives the figure compounded at the interest rate you have input. As far as I know you cant claim s69 court interest (8%) on compounded interest claims, but I'm sure someone with more knowledge than me will comment on that bit!!!!!

 

PmW

[brindles]

Hi,

I noticed in Noomill thread(see link) that he claimed compound interest and at the court stage he added s69 court interest (8%).

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/168312-morgan-stanley-cca-received.html

 

Barclay made a fuss but he had success, I too am claiming both.

 

hope this helps.

[the_shadow]

Hi,

I noticed in Noomill thread(see link) that he claimed compound interest and at the court stage he added s69 court interest (8%).

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/168312-morgan-stanley-cca-received.html

 

Barclay made a fuss but he had success, I too am claiming both.

 

hope this helps.

 

It does if they pay it

 

Cheers will adjust my POC