BARCLAYCARD Round 2 ***WON***

[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.

[slick132]

Hey Skint,

 

Take a read through this - I've linked to page 3 of the thread but it may be interesting earlier too - http://www.consumeractiongroup.co.uk/forum/barclaycard/138906-mackerel-barclaycard-3.html#post1563416

 

A word from the wise would be most welcome.

In that case, you'd better catch Noomill or Steven.....

 

I take it you've seen Steven4064's Interest Tutorial which I hope I linked through a post on page 1 of this thread.

[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.

[slick132]

I've asked a member of the Site Team to advise here, so your POC is done correctly.

[steven4064]

Skintboy

 

Happy New Year to you too. I have put my views below (in red)

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? You might like to add the actual amounts

 

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? I would just leav it out - what you have put is true

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% ??) 29.9% per annum is 0.072%/day - my interest guides details the actual calculation

 

4) I intended ommiting the sec 69 8%, Is that right? You must - you cannot claim both by virtue of s69(4) of the County Courts Act 1984. You could put it as an alternative, but that is inviting the court to take the easy route and just give you that - if it gets to court, that is.

 

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?? Yes

[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.

[steven4064]

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?

I claimed:

 

1. charges

2. interest they added to the charges estimated from my statements (this is also a charge)

3. interest in restitution on all the charges (actual charges plus the interest they added to the charges) - this was at their contractual rate

[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.

[steven4064]

Hi Steven. I assume you have a PhD in maths or something similar.

Actually, yes

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.

Looks about right. However, I didn't do it that way as I think you need to take into account your repayments. What I did was to take the interest charge on each statement and estaimate how much of that was due to charges and how much to what I had actually borrowed. How I think it should be done is explained in the intreest tutorial.

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.

Yes, you are probably right - about 14%-18% is probably more defensible.

[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

[steven4064]

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

It would be better if you posted it here - I prefer not to advise/commenty by PM unless there is a really good reason

I intend using your POC (adapted to my case) if that's all right too.

That's fone, that's why I poisted so much detail.

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?

I would try and get a current set or the ones ni force when you took out the agreement, if you stil lhave them.

[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.

[steven4064]

I didn't realise it was a spreadsheet you were talking about. I don't mind checking those by e-mail. It's just advice on your 'case' I would rather was inthe open so that others can correct, enhance or trash it.

[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:

[skintboy69]

Do we have a thumbs up or a thumbs down for the POC???:-|

 

Cheers.

 

T.

[slick132]

Hi Skint,

 

I'm not qualified to comment on the technical content.

 

Steven is, but he may simply not be around or have time to go through this just now. If it's come from good sources and you've carefully adapted, and proof-read, it may have to go without specific comment.

 

In the Summary, 6 a) has a full stop that shouldn't be there after the "6 a)"

 

Total pedant !!

Edited January 6, 2009 by slick132
apology for being a pedant

[steven4064]

It's basically my Goldfish POC.

 

para 17 and (2) of "the claimant claims" both have numbers missing - £xxxx

[skintboy69]

Hi Slick.

 

You can be as pedantic as you like. I really want to get this one right and a dozen posts pointing out crap punctuation etc is better than screwing it up over a technicality.

 

I value your observations and comments.

 

Cheers.

 

T.

[skintboy69]

Hi Steven.

 

It is, indeed, your Goldfish POC and I claim absolutely no credit for it whatsoever (albeit I wish I could). I obviously had to prune it a little to make it fit my case but I think it's a really well structured document and if that doesn't impress the judge, I'll have to take a troop of dancing girls with me and try that.

 

I will add the figures prior to getting it to court and then spend some weeks sweating.

Thanks for the input.

 

Cheers.

 

T.