Barclays Finance - harrassment/extortionate interest charges

[greenflamingo]

A new development - they have now written to say I am being charged £22.50 for a Late Payment and they will charge me another £22.50 if they have to write again!!

 

Am I right in thinking that they cannot apply these late payment charges if the account is in dispute ?

 

" You should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account."

 

[blueboy987]

Have you actually told them the account is in dispute?

 

Besides, I think late payment charges are the least of your concerns at present - you can worry about them once the main debt / interest is sorted out.

[slick132]

Hi GF,

 

I don't know if you wrote to them as suggested in your post on 30th April. Reply to them as follows, but adapted if you've already written to them.:-

 

Dear sir or madam,

 

Account ref: xxxx xxxx

 

I refer to your letter of xxdate wherein you say you have charged £22.50 already and will do so again if you write to me further.

 

I must refer you to my CCA request dated 25th April which, to date, remains unanswered. Also, I await your reply to my letter of 1st May.

 

Clearly, this matter is "In Dispute" and, according to the OFT Debt Collection Guidelines, you are already in breach of the following:-

 

Sections 2.6(h); 2.8(i) and 2.8(k)

 

If you continue to demand payment by phone or letter, add penalties or interest, or take any other unauthorised action, I will make a formal complaint to the FOS asking them to investigate your actions.

 

Yours faithfully,

 

 

 

It would also help us if you posted the letter which you referred to on 1st May above, so we can see what you said to them about the alleged debt.

[greenflamingo]

Hi Slick/Blue

I have today sent by Recorded Delivery the following letter:

 

"Thank you for your letter of 20 April 2009, the contents of which have been noted. I have documents from Clydesdale Finance proving there is no debt on this account.

You should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

As you were informed in my letter dated 25th April 2009 that this account is in dispute if you attempt to breach any of the above conditions I will report you to Trading Standards and the Office of Fair Trading for unlawful practice.

 

I would appreciate your due diligence in this matter. You have 14 days from receiving this letter to contact me in writing with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing."

------

 

Does this sound ok?

They did send a copy of the credit agreement which is same as my copy.

Should I just sit back and await a response?

[slick132]

Hi GF,

 

Have you read this and checked over the credit agreement - http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements.html

 

There's a lot of "due diligence" in the last 3 para's.

 

Have you researched Estoppel and Change of Position as mentioned by Nicklea on the last page of your thread. You would do well to read up on these.

[greenflamingo]

Many thanks Slick I will get out the agreement and try to comb through and see if it is enforceable using the link. I dont remember receiving any letter offering to cancel the agreement within 14 days - should I write and ask for this - if I didnt get one - can they still enforce the agreement?

[greenflamingo]

Estoppel and Change of Position. I rang up my home insurance as I have legal cover (though dont know if this would be any good in my case). I asked their legal department about Estoppel and Change of Position. They said that cases were "very rarely" successful using these arguments. Is this true?

[slick132]

Hi GF,

 

Estoppel and Change of Position are established principles in law and are used successfully, in the right circumstances.

 

Unless your insurers are prepared to take on your case under your house policy, you will have to challenge the bank yourself.

 

Research both subjects using Wiki, Yahoo or Google.

 

Then you can see for yourself how these arguments may be used in your case.

[greenflamingo]

Thanks Slick

Feeling confident I can take them on just on the basis that they are a real nuisance with the telephone calls. I am going to report them to Trading Standards on Monday.

[slick132]

Hi GF,

 

Usually, TS is a waste of time and won't help your case at all. The calls are annoying but this won't help you make a case against them.

 

Read up on the relevant subjects, then come back with any Q's.

 

[nicklea]

Also search here for the terms:-

 

BAILII - Case Law Search

 

(hint:- use Exact phrase search function)

 

This can be very useful in finding precedents and also in developing your arguments for use in court.

 

One of the leading cases in this area is Lipkin Gorman v Karpnale [1988] UKHL 12,[1991] 3 WLR 10, [1991] 2 AC 548 but you might also want to look at Test Claimants In the FII Group Litigation v HM Revenue & Customs [2008] EWHC 2893 (Ch) especially from para 303 onwards.

 

Some others you might like to look at include:-

 

Niru Battery Manufacturing Company & Anor v Milestone Trading Ltd & Ors [2003] EWCA Civ 1446

 

Commerzbank Ag v Price-Jones [2003] EWCA Civ 1663

 

It's basically down to you to show that there was a sufficient causal link between you not having to pay the money and then spending it on something else and that your position is so changed that you will suffer an injustice if called upon to repay or to repay in full, the injustice of requiring you so to repay outweighs the injustice of denying the plaintiff restitution

[greenflamingo]

Thanks everyone for your help.

 

I have today received a letter from Barclays Partner Finance:

 

"I write with reference to the above numbered account. Unfortunately I was unable to contact you by telephone today.

 

As discussed with our customer services department, a payment was applied to your account with cleared your balance, and this was confirmed in writing.

 

However, it has since been identified that this payment belonged to another account, and has since been transferred. Therefore, your account is not settled.

 

I understand that you have advised that a payment for this value was sent by you to the above account and that your balance should be settled. In order that I can locate this payment and resolve matters swiftly, I require proof of the payment you had made. On receipt of this, I will endeavour to finalise your account as quickly as possible.

 

I have placed a hold on your account for a period of fourteen days to allow for receipt of the above information. Should you require longer obtaining the information, please advise me at the earliest opportunity.

 

I trust you will by now have received a copy of your finance agreement although please do not hesitate to contact me should you require any further information."

 

I did not at any time advise BPF that I had paid the £10K on this account as I wouldnt lie. I wonder if they are trying to catch me out?

 

Is it good news that they have admitted they made a mistake?

 

What should my next written response be?

Is it too early to mention estoppel and change of circumstances to them?

Obviously I cant produce receipt of payment.

[greenflamingo]

Thanks Nicklea this is great - and really helpful.

[blueboy987]

As discussed with our customer services department, a payment was applied to your account with cleared your balance, and this was confirmed in writing.

 

However, it has since been identified that this payment belonged to another account, and has since been transferred. Therefore, your account is not settled.

 

It would be interesting to see a statement of the loan account so you could see when the erroneous payment was applied, how much it was for and when it was transferred out. If they haven't supplied one yet the first thing I'd do is to request one and see what comes back, then take it from there.

 

Seems a bit strange that the exact payment required would have been accidentally applied to your account and you'd have thought they would have picked up on it before now.

 

Can't help but think they are telling porkies....

[slick132]

I don't think they're trying to catch you out at all. They're just asking you to produce anything which shows that you've paid the £10K.

 

If you've read up on Estoppel and Change of Position, and think you can use these principle's to defend your position, I think you should reply something like:-

 

Dear sir or madam,

I refer to your letter of xxdate and have no idea why you say I made a payment in settlement. This is not what I have said at all.

You wrote to me twice in 2007 confirming the account was settled in full and there was nothing to pay.

I spoke to your offices on two separate occasions saying I believed I owed you money. Each time, your staff checked, told me there was no error and that, accordingly, no payment was due. After that I heard no more from you.

I had the money to pay in 2007 and was willing to settle in full, thus avoiding any interest charges. However, you denied me the opportunity to pay at that time.

Since then, my circumstances have changed drastically and I no longer have the money to pay this amount.

I consider this matter to be entirely your fault and, accordingly, you should make no further demands of me.

Yours faithfully,

You already know my personal feelings on how this may go, but Nicklea has made valid points which are relevant to your changed circumstances.

 

It may be that this is decided by a judge if/when BPF issue a court claim.

[greenflamingo]

Checked through the credit agreement and everything seems ok. The only thing I can see is the Right to Cancel section which states I have "5 days starting with the day after you received this copy. " There is then a cancellation form actually on the credit agreement so they havent written to me separately giving cancellation information. Is this legal as I thought you had 14 days cooling off period?

[slick132]

Hi GF,

 

Could you scan or link to the agreement (not Jumbo size though ).

 

I think it important that this be checked carefully by one of our experts with so much at stake.

[greenflamingo]

Thanks Slick - do I put this on say the photobucket website and paste in the link onto the forum?

[slick132]

Yup - details on how to do it are in here - http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

[greenflamingo]

 

 

 

Hope this is legible and hope of course its not legal

[slick132]

Hi GF,

 

Great scanning !!

 

I've asked for back-up on this to ensure you get the right advice as to the enforceability of the Credit Agreement.

 

[slick132]

Hi GF,

 

Steven 4064 has looked it over and, apart from not being able to check the feint figures, said the Agreement appears to be in order.

 

So it looks like we're back to plan A.

 

Have you sent the letter, or your adapted version, which I suggested on 13th May.

[greenflamingo]

Thanks Steven and Slick for help with credit agreement. I am going to donate to CAG after all this is over.

 

Yes I am going to send the letter mid next week so am thinking I may get a response from Barclays the week after.

 

Jumping on a stage am wondering whether if the response is negative and they threaten court action would it make sense for me to be one step ahead of them and file my own court action in the Small Claims Court?

 

I was thinking it might save me money on legal fees and/or some type of collection fees imposed by any credit collection agency/solicitor employed by Barclays?

[slick132]

Hi GF,

 

Personally, I can see no benefit in you Filing against Barclays. I assume you would be seeking an injunction to stop them pursuing the alleged debt.

 

You'd be better Defending their claim against you. I don't think this will cost you any court fee because you are not counter-claiming.

 

There should be no fees added by a DCA. There could be a question of costs if the case is allocated to the FastTrack but I think this is unavoidable if you want to defend against either the whole claim, or the £6700 extra interest they'll no doubt seek.

[greenflamingo]

ok many thanks Slick