BARCLAYCARD Round 2 ***WON***

[skintboy69]

Having recovered all charges + 8% from these guys for wifey I have now started on my own.

 

BC responded surprisingly quickly to my Subject Access Request and sent all the info they had going back to 2002 which is when the account was opened. They did point out to me that their microfilm stuff (ie pre 2004) was not 'defined as a relevent filing system' so far as the 1998 data protection act is concerned and that they only dug it out and sent it to me as a favour. Nice, hey??

 

Well, I have sent my preliminary request and SOC - in fact, 2. one @29.9% and 1 @ 8% (compound) and basically told them to pay the smaller by return and by cheque, or I'll see them in court for the larger.

 

In general terms, is one considered to be short in the 'bottle' department for accepting anything less than CCI??

 

Keep the faith, T.

Edited November 30, 2008 by skintboy69

[skintboy69]

Good morning Slick. Yes, I know the pros and conns and 8% is definitley the easier road.

 

When I first found this excellent site about 18 months ago there were quite a few posts saying, more or less, if you don't go for your full entitlement ie CCI, the banks etc. would think you didn't know what you were doing and would be less inclined to settle.

 

It seems to me that the game has changed somewhat over the last 12 months and I was interested to see what current practice is.

 

As for me, even if I don't recover another penny from the various institutions that have taken charges from me over the years (and I don't think that likely ) I can honestly say that this site has changed my life. It has taught me that banks can't just do what they want to you. It has taught me how to fight back and it has given me the motivation to re-organise my finances. I'm still skint, but I'm getting there. I don't jump every time the phone rings and I don't hide unopened mail because I'm too scared to see what's inside. I did 18 months ago.

 

Keep the faith.

T.

[skintboy69]

Hi Mandylou. I have overlimit and late payments both on mine and my wife's. You can claim both back. they have already settled my wife's in full.

 

Cheers, T.

[skintboy69]

Gesture of goodwill letter arrived today. it was processed 2 days after they received by claim.

 

My rejection letter is aready written and ready to go. They have about a week to come up with the full amount. Otherwise, I'll have to dust off my wig (if you know what I mean).

 

Keep the faith.

 

T. 8)

[skintboy69]

As ever, Slick, but they will have my rejection tomorrow or Monday.

 

They still have 6 days to accept the 8% claim in full. If they don't, it's off to court for the full 29.9%.

 

They've had fair chance to save themselves a few bob, in fact I spelled it out in words of one syllable but when the 6 days are up, they're up.

 

Keep the faith.

 

T. 8)

[skintboy69]

Their time is up. I've heard nothing from them since their 'gesture of goodwill'. I posted the rejection letter last weekend and the 14 days I gave them has expired.

 

They will, therefore, receive from Santa (aka skintboy69 ) an LBA for all charges + CCI. They have been warned!!!!!

 

Wish me luck; I might go down in flames .

 

Keep the faith.

 

T.

[skintboy69]

Quick update.

 

Today I received their response to my rejection letter. In it they give the usual c*#p and say I will have the results of their 'investigation' by 8th January.

 

Happily for me (but unhappily for them) they received my LBA today as well.

 

In it, I had advised them that the deadline for accepting my 8% deal was passed and it was now, so to speak, the full monty.

 

To add to their misery, their 14days to reflect expires before 8th Jan. I wonder what they'll do.

 

I wonder what I'll do.

 

 

Keep the faith.

 

Best wishes to all.

 

T.

[skintboy69]

Hi Slick.

 

Yes I have. As I said in an earlier post, when I sent my original prelim. I sent 2 soc's. one @ 8% and one @ 29.9%

 

I gave them a fair choice. Either pay in full at 8% within 14 days or I would file my claim with the county court for the full 29.9%. I made it perfectly clear that the 8% offer was only open for 14 days and that I made them this offer to facilitate a quick settlement at minimum cost to both parties.

 

As usual, they have chosen to faf around with a rediculous gesture of goodwill. I wrote back rejecting that and reminded them that they still had a few days to pay up.

 

Again, they chose to ignore it so I sent a LBA + SOC at the end of the 14 days.

 

I have since received another letter from them - a different department though, saying I would have their response by 8th. Jan. This is obviously a response to my rejection letter, because it was posted the day I posted my LBA. The 14 days grace given in my LBA runs out before 8th Jan. so I'm wondering how they will react.

 

Any thoughts??

 

T.

[skintboy69]

Yo Noomill.

 

That's the plan. Thanks for the encouragement.

 

 

'Exterminate them.. Exterminate them'

 

( The Daleks - Masters of the Universe)

[skintboy69]

Greetings troops. I hope Christmas went well for you all.

 

Here's another update - and I could do with a bit of advise as well.

 

BC actually got back to me on Christmas eve, a good bit earlier than they said. They have credited my account with the balance of their charges + a flat 8%.

 

I'm now of three minds (quite a feat for someone with a tiny brain )and I would really appreciate a bit of considered feedback. Here we go:

 

1) Accept the £xxx and consider it a result - which it's better than the proverbial poke in the eye etc.

 

2) Acknowledge receipt of a second part payment and ask them to come up with a mutually acceptable settlement.

 

3) File a claim for £xxxx and see what happens in court.

 

As usual, the interest they have charged is about 3x the actual charges. At present, I favour options 2 & 3 but I would welcome your combined wisdom.

 

Keep the faith.

 

T.

[skintboy69]

Hi Slick. Thanks for coming back so quickly. Your reply is just what I expected - but we live in hope.....

 

I think I'll take this one all the way, though I know I'll need some help with the paperwork. Will you be around??

 

As to understanding the principals; my understanding, at present, is a little basic to say the least but I'm reading up on everything I can find on the site and I won't file until I'm sure of what I'm doing. I assume I can take my time at this stage.

 

From a legal point of view, I would have thought it obvious that if the charges are unlawful then any intrest added to those charges must be unlawful as well. (too simplistic??)

 

The court costs are not really an issue either as BC have already returned substantially more than that, however, if it goes to court and I lose what might their costs be? It would be small claims anyway.

 

 

Cheers, T.

Edited December 29, 2008 by skintboy69
crap spelling!

[skintboy69]

Hi Slick.

 

It makes perfect sense to me. Maybe I should give up engineering and be a judge. I'd soon set the world to rights.

 

Seriously though, thanks again for the help and advise. I'll try to get the papers to the court early next week.

 

Watch this space.

 

Keep the faith.

 

T.

[skintboy69]

OK I've just been going through the salient points of the 'SEMPRA' case. It's fascinating stuff.

 

Am I correct to assume that this case sets a precedence in law and can I resonably base my case on it, specifically unjust enrichment and restitution???

 

A word from the wise would be most welcome.

 

Keep the faith.

 

T.

[skintboy69]

Yo slick.

 

Thanks again for coming back.

 

Yes, I have read Steven's Interest Tutorial and I know I'll have to refer back to it when filling in the N1. I have a number of questions about that already but I'll leave them until a slightly later date.

 

I'm back in work tomorrow - just a skeleton crew - so I should have time to read up on that link you have given me and some more case law.

 

For now, the wine bottle calls; so sleep tight. (I know I will )

 

Keep the faith.

 

T.

[skintboy69]

I may be a little late here, but a very happy new year to us all.

 

Now, back to business.

 

I'm trying to sort my N1 and as I said last year - I need a little more help. I'lll number the questions to make it easy for me and perhaps I won't forget any!

 

1) 'Brief details of claim' - Money claim for the return of penalty charges + associated interest applied to the claiments credit card account by the defendant. Is this ok?

 

2) Point 19 of poc says 'The defendant has not repaid them or any of them'. In fact they have made 2 gestures of goodwill. Do I need to re-word this and if so with what? Or should I just leave it out altogether?

 

3) Point 19(2) - Payment of the said sum of £xxxx and interest in restitution of £xxxx at the defendant's normal interest rate of 29.9% compounded up until the date of claim and at a daily rate of ??% until judgment or sooner payment. How do I calculate the daily rate (of 29.9% ??)

 

4) I intended ommiting the sec 69 8%, Is that right?

 

5) And finally (for now at least) As BC have in fact already returned all the actual charges, should I change the details in 1) to claim fr interest only??

 

 

I have no doubt there will be more questions later, but a bit of advise on this lot would be most appreciated.

 

Keep the faith.

 

T.

[skintboy69]

Hi Steven and thanks for the input.

 

I've just come off your 'Goldfish' thread and I see that you also opted for CCI but you appear to have included another level of interest i.e. charges plus interest levied (I assume that was also at contractual rate) and then more interest, also at compound rate for restitution based on Sempra.

Am I correct in my interpretation?? Would not the 2 figures be the same?

 

Cheers, T.

[skintboy69]

Slick, thanks a million for contacting Steven for me. I really cannot say how much help you've been.

 

Cheers, T.

[skintboy69]

Hi Steven. I assume you have a PhD in maths or something similar. I really need the version with BIG letters and pictures.

 

See if I've got it right this time. Take a single charge by way of example:

 

£24 taken 15th Jan 2004. interest @ 29.9% = £64.01 total = £88.01

 

you then apply 29.9% to £88.01 for restitution ???? That's going to be a big number.

[skintboy69]

Just as an afterthought, maybe the restitutional figure should be what they refer to as 'typical APR' which is going to be less than the massive 29.9%that I pay.

 

T.

[skintboy69]

Hi Steven.

 

You are, as ever, the fountain of all knowledge.

 

quote:

Actually, yes

 

Thought so. I'm still at abacus stage myself .

 

I've checked BC's website and their current 'typical' APR is 14.9% so I'll use that.

 

In your tutorial you say it is acceptable to calculate the restitution figure by applying their interest to the charges if the account was virtually at the limit for the entire period. This was the case with mine so I'll calculate it on that basis.

 

Would it be ok for me to e-mail you with my SOC for approval?

I intend using your POC (adapted to my case) if that's all right too. Obviously, I will have to use BC's terms & conditions rather than Goldfish's. Those on the 'sticky' are 2007. Will they be acceptable to the court or should I try to get a current set from BC?

 

 

Thanks again.

 

T.

Edited January 3, 2009 by skintboy69
crap typing

[skintboy69]

Hi Steven. I saw the bit about e-mails etc at the bottom of your signature. I take your point.

 

Being a bit of a technophobe I might struggle attaching the SOC but I'll give it a go.

 

Cross EVERYTHING

 

 

Well blow me to Bermuda!!!! It worked. :grin:

Edited January 3, 2009 by skintboy69
deleted gibberish

[skintboy69]

Oh no it didn't :(

 

Don't know what to do now.

[skintboy69]

Second time lucky???

 

NO:(

Edited January 3, 2009 by skintboy69

[skintboy69]

I'll e-mail it straight away Steven, thanks.

I absolutely endorse what you say about general advise etc. I/we learn so much from the posts here.

 

Cheers,

 

T.

[skintboy69]

Having spent half the day fiddling with my POC I think I have finally gort it right and will attempt to post it up here for the great and the good to peruse.

 

My first name not being Bill and my second name not being Gates, this sort of thing usually goes horribly wrong for me - so stand by for a laugh.

 

IN THE XXXXHCOUNTY COURT

 

 

 

BETWEEN

Skintboy69

Claimant

and

Barclays Bank Plc (t/a Barclaycard)

Defendant

 

 

PARTICULARS OF CLAIM

 

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around 1 May 2001, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxxxxxxxxxxxxxx ("The Account").

 

2.The Agreement essentially consisted of the Defendant providing the Claimant with a credit card (“The Card”), which would allow the Claimant to make purchases and receive cash advances on credit. In return the Defendant was entitled to charge interest at the published rate.

 

3.The Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974.

 

4.At all material times the contract was subject to the Defendant’s standard terms and conditions, which could be varied from time to time.

 

Summary

 

5.Throughout the course of the Agreement, the Defendant has added numerous default charges to the Account for the Claimant’s breach of the Agreement by his failure to make the minimum payment on the due date and or for exceeding the credit limit and or if a payment was returned. (Full particulars are set out in the attached Schedule).

 

6.The default charges were applied in accordance with the standard terms of The Agreement, which were:

a). A penalty payable on breach of contract and thus unenforceable: and

b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Claimant.

 

 

7. The Claimant is accordingly entitled to repayment of the sums wrongly added to the Account plus interest levied thereon.

 

The Charges

 

8. The standard Terms of the Agreement in substance provided as follows:

 

(a) The Defendant would provide the Claimant with the Card. The Claimant was entitled to use the Card to make purchases and receive cash advances up to a credit limit (“the Limit”) set by the Defendant. The Defendant could unilaterally change the Limit by giving the Claimant notice in writing.

(b) The Defendant was entitled to charge interest on the purchases and cash advances at the published rate.

© The Claimant was to pay the minimum payment specified on the monthly statements of account by the due date as notified in the monthly statements.

(d) In addition the Defendant was entitled to charge default fees (“the Charges”) where the Claimant exceeded the Limit, did not pay on the due date or had a payment returned. The Charges are currently £12 for each transgression. Prior to 2006 the Charges were £24.

 

 

Contract Penalties

 

9. The Charges were payable on breach of contract by the Claimant.

 

10. The amount of the Charges exceeded any genuine pre-estimate of the damage, which would have been suffered by the Defendant in relation to the Claimant’s transgressions.

 

11. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

The Regulations

 

12. At all material times the Claimant was a consumer within the Regulations.

 

13. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that, contrary to the requirement of good faith, they caused a significant imbalance in the parties' rights and obligations to the detriment of the Claimant.

 

14. Without prejudice to the burden of proof, the Claimant will refer to the following matters in support of the contention that the terms are to be assessed as unfair as at the time of the conclusion of the Agreement, and of each revision to the Standard Terms.

 

(1) The terms relating to Charges were standard terms; they would not be individually negotiated.

(2) The Charges were a penalty for breach of contract.

(3) The Charges exceeded the costs, which the Defendant could have expected to incur in dealing with the exceeding of the credit limit, late payment or returned payment.

(4) Accordingly the Charges were a disproportionate charge incurred by the Claimant for their failure to meet their contractual obligation and thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

(5) As the Defendant knew, the Charges were of subsidiary importance to the customer in the context of the Agreement as a whole and would not influence the making of the Agreement.

(6) As the Defendant knew, the Claimant had no means of assessing the fairness of the Charges.

(7) In the premises, the effect of the Charges would be prejudicial to the customer who incurred them, and cause an imbalance in the relations of the parties to the Agreement by subordinating the customer’s interests to those of the Defendant in a way, which was inequitable.

 

15. Without prejudice to the burden of proof, the Claimant will contend that the terms imposing the Charges are not core terms under regulation 6 of the Regulations and rely on the following matters.

 

(1) The assessment of fairness does not relate to terms, which define the main or core subject matter of the Agreement.

(2) The assessment of fairness does not relate to the adequacy of the price or remuneration as against the goods or services supplied in exchange (in other words, whether or not the relevant services were value for money).

(3) The Charges are correctly described as default charges by the Defendant in the key information provided to new customers.

 

 

16. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

 

17.The Defendant wrongly applied Charges to the Account totalling some £xxxx between 15th May 2003 and 7th July 2008 and interest levied thereon of £yyyy. Particulars appear from the attached Schedule.

 

18. On 23rd November 2008 the Claimant demanded repayment of the sums wrongly applied.

 

19. The Defendant has made only token payments totalling £531.36

 

Compound Interest

20. The Claimant submits that the Defendant would be unjustly enriched was the Claimant’s entitlement limited to the statutory rate of simple interest. The Defendant, a powerful financial institution, has had use of the sums wrongfully and unlawfully gained by way of penalty charges levied to the Claimants account, over a period of up to 4 years. The fundamental core of the business of the Defendant is to acquire funds and profit from those funds in the form of interest by lending at commercial compounded interest rates. Therefore, it is the Claimants submission that the sums wrongfully and unlawfully acquired from the Claimant by way of penalty charges would, over the considerable time they have been in the Defendants wrongful possession have earned considerable profit by virtue of commercial rates of compounded interest charged by the Defendant.

 

21. Therefore for complete restitution to occur the Claimant seeks an award of compound interest at the accounts purchase interest rate of 14.9% per annum. The Claimant submits that it is unconscionable that the Defendant may be allowed to profit in any way from unlawful, wrongful and unauthorised use of the Claimants funds, and that compound interest at the rate claimed is necessary to provide an equitable remedy.

 

And the Claimant claims:

 

(1) Payment of the said sum of £xxxx and interest of £yyyy applied by the Defendant thereon.

(2) Compound interest at an annual rate of 14.9% from the date of payment of the Charge to 4th January 2009 in the sum of £zzzz, and at the daily rate of 0.0381% until judgment or sooner payment.

 

 

(4) Court costs of £

I believe that the facts stated in these particulars are true.

 

Dated this 4th day of January 2009

 

Signed

From the Terms and conditions currently enforce (as of Sept 2007).

 

2.5 You must keep within your credit limit. When working out whether you have gone over your credit limit, we can include the amount of any authorised transaction not yet put on the account.

 

3.1 You must make all payments by the payment due date. To help you to do this, your monthly statement will tell you how to make payments to reach us on time. Where we

become aware that your monthly payment was received before the payment due date but credited to your account after this date because of an error by us we will either refund or not charge a late payment fee.

 

 

From Key Financial Information (Sept 2007)

 

Amount of credit

 

We will tell you your credit limit when you first receive your Barclaycard. We may

change your credit limit depending on our assessment of your account and will tell you

about these changes by writing to you.

 

Monthly Payments

You must make the minimum payment every month of 2.25% of the amount you owe

us on your monthly statement or £5, whichever is more or the entire amount if less

than £5. You must pay the minimum payment by the due date shown on your

statement. This will normally be 25 days after your statement date.

 

Default Charges

 

We will charge you for any reasonable costs or losses we incur if you break this

agreement, including the following charges:

£12 if you do not make at least your minimum payment by the payment due date;

£12 if you exceed your credit limit at any time;

£12 if a direct debit, cheque or other item is not paid when first presented.

 

 

Brief POC

Quote:

Repayment of charges unlawfully applied to the Claimant’s account by the Defendant for purported breaches of a contract plus interest levied thereon in contravention of the common law and the UTCCR1999 plus payment of interest in restitution of the Defendant’s unjust enrichment.

The Claimant claims:

(1) Repayment of charges totalling £xxx and interest of £xxx applied by the Defendant thereon.

(2) Compound interest of £xxx and at the daily rate of 0.0381% until judgment or sooner payment.

 

At this stage it appears to have worked but anything could happen when I flip the switch. :grin: