bearing v Barclays Partner Finance ***CASE WON*** probably !!

[slick132]

Ah, OK.

 

Get the claim in and the rest will follow.

 

When it comes to negotiating the settlement, you can insist on a cheque refund or a credit to a bank a/c of your choice.

 

Barclays will say the pay't should go to the loan a/c but you'll refuse to accept this, saying you'll not discontinue your claim until you receive pay't in the manner acceptable to you.

[bearing]

Cheers slick,

 

My next hurdle is how to apply the s.69 interest.

 

In the beginning when I took out the loan the price of the item and the interest were added as the balance of the account, obviously I then make payments to the account to reduce this amount to zero. Along the way charges have been added and my monthly payments have been paying off the charges as well as the balance.

 

Now my problem is that I've not been paying anything for a while because of the reasons I gave in my last post (account in my eyes paid off) but they have been adding charges, obviously I will want those to be cleared at the end of it, but can I claim the interest on these charges in the same way as the others as I haven't actually made any payments towards them?

 

A little confused on that one...

 

My thoughts are that I make an interest claim on all of the charges

 

or

 

I only make an interest claim on the charges added before my last payment to them but still claim the charges back for those added after my last payment to them.

 

What do you think.

Edited October 3, 2009 by bearing

[bearing]

Which POC should I use?

 

The type of account I have with BPF is a Fixed sum fixed rate account.

[bearing]

My POC:

 

Particulars of Claim

 

 

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on 29xxth xx 20xx, whereby the Defendant was to advance credit facilities to the Claimant under a Fixed Sum Fixed Rate Account, Account no xxxxx ("The Account").

 

2. The Agreement essentially consisted of the Defendant providing the Claimant with a credit account (“The Account”) which would allow the Claimant to make purchases at xxxxxxxx in the United Kingdom. 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 failure to make the minimum payment on the due date and or if a payment is 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.

 

 

The Charges

 

 

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

(a)The Defendant would provide the Claimant with credit facilities. The Claimant was entitled to use the credit facilities to make purchases 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 at the published rate.

©The Claimant was to pay the minimum payment of £xx.xx by the due date as notified in the credit agreement, that being the last day of the interest free period and at monthly intervals thereafter for a period of 36 months.

(d)In addition the Defendant was entitled to charge default fees (“the Charges”) where the Claimant did not pay on the due date or had a payment returned. The Charges are currently £22.50 for each Arrears Letter sent, £20.00 for Unpaid direct debit payments and £20.00 for returned cheques.

 

 

 

 

Penalty

 

 

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 Institution 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 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 Barclays Partner Finance could have expected to incur in dealing with 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 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 relies 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. The Defendant wrongly applied Charges to the Account totalling some £xx.xx between xx/xx/20xx and xx/xx/20xx. Particulars appear from the attached Schedule.

 

17. On xx/xx/20xx the Claimant demanded repayment of the sums wrongly applied.

 

18. On xx/xx/20xx the Defendant credited the account with £xx.xx an amount that the claimant respectfully declined and asked to be debited from the account, to date this request has not been actioned.

 

And the Claimant claims

 

(1)A declaration that the sums totalling £xx.xx have wrongly been applied to the Account.

 

(2)Payment of the said sum of £xx.xx.

 

(3)Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of payment of the Charge to date in the sum of £xx.xx, and at the daily rate of £0.21 until judgement or sooner payment.

 

(4) Court costs of £65.00.

 

I believe that the facts stated in these particulars, comprising of 3 pages, are true.

[slick132]

Hi Bearing,

 

Is it clear from a/c statements whether or not BPF have added interest on the a/c balance INCLUDING penalty charges which they've made.

 

If they have, you should claim interest at their contractual rate, regardless of whether you've paid the a/c up to date.

[bearing]

Hi Bearing,

 

Is it clear from a/c statements whether or not BPF have added interest on the a/c balance INCLUDING penalty charges which they've made.

 

If they have, you should claim interest at their contractual rate, regardless of whether you've paid the a/c up to date.

 

 

No the actual interest was applied at the very beginning, so the actual amount owing to them was known right from the start including the interest/finance charge

 

This is similar to how the account looks at the beginning(I've not used the original figures):

 

Date         Trans Amount              Description                      Balance

18/04/07      181.63                   Loan Advance                     181.63         
18/04/07      162.52                   Finance Charge                   344.15
18/04/08       -9.56                   Debit Card Payment               334.59
18/05/08       -9.56                   Direct Debit Payment             325.03

And so on until the balance reaches zero, so as you can see the interest is fixed and front loaded.

 

 

Does the POC I've posted up look okay to go?

Edited October 4, 2009 by bearing

[slick132]

So penalty charges have been added to the a/c but no interest applied thereon ?

 

In this case, just claim each penalty charge and claim 8% s.69 Int't from the charge date, as per the spreadsheet.

 

Re the POC you've posted, as this is a Fixed Sum Loan, Section 8 (a), (b),and © need re-wording. As with all site templates and letters, you must adapt them to suit your individual case.

 

[bearing]

Right I'll have to have a think about what to put. 8 © has been adapted to suit the case in hand, or at least I thought it would suit.

Edited October 4, 2009 by bearing

[bearing]

Does this look any better, or do I need to try again?

 

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

(a)The Defendant provided the Claimant with credit facilities to allow for a purchase of xxxx equipment.

(b)The Defendant was entitled to charge interest on the purchase at the rate indicated within the Agreement once the interest free period was ended.

©The Claimant was to pay the minimum payment of £xx.xx by the due date as notified in the credit agreement, that being the last day of the interest free period and at monthly intervals thereafter for a period of 36 months.

[slick132]

That looks fine to me.

 

[bearing]

slick, have I filled in this N1 correctly?

 

 

[slick132]

Hi Bearing,

 

On the front page, under Value you've put the entries correctly BUT, under the TOTAL figure, there should read the following:-

 

"Plus interest pursuant to s.69 County Courts Act 1984 from date of issue to date of judgement/settlement at £0.xxp** per day OR at such rate and for such period as the court deems just."

 

**The figure you enter here is Charges x 0.00022 = pence per day

 

Eg, if your charges are £1,950, the daily rate is 1,950 x 0.00022 = 43p/day.

[bearing]

So leave everything as is, but add under my TOTAL the paragraph about the interest since issue.

 

Do I round up if above .5 pence?

[slick132]

Yes.

 

Yes.

 

[bearing]

Just updated my POC, adding a reference to wanting the default removed.

 

18. On 1st September 2009 the Defendant made three credit payments to the account totalling £xxx.xx and then on 16th September 2009 the Defendant credited the account with a further £xxx.xx. These credits were respectfully declined by the Claimant who asked for the payments to be debited from the account, to date this request has not been acted upon.

 

And the Claimant claims

 

(1)A declaration that the sums totalling £xxx.xx have wrongly been applied to the Account.

 

(2)Payment of the said sum of £xxx.xx

 

(3)Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of payment of the Charge to date in the sum of £xx.xx, and at the daily rate of £x.xx until judgement or sooner payment.

 

(4) Court costs of £65.00.

 

(5)Removal of incorrect adverse account status data from third-party data controllers including, but not limited to, Experian, Equifax and Callcredit.

 

I believe that the facts stated in these particulars, comprising of 3 pages, are true.

Also wondering whether to add a point in the section quoted above regarding wanting the credits I mentioned in point 18 to be removed from the account as I asked by letter and which hasn't to date been done.

 

I thought something along these lines....

 

(6)Removal of sums credited to the Claimants account by the Defendant on 1st September 2009 and 16th September 2009.

[slick132]

Personally, I'd not worry about adding anything to para 18 as this can be adequately dealt with when negotiating settlement.

 

Otherwise, it looks fine.

[bearing]

Personally, I'd not worry about adding anything to para 18 as this can be adequately dealt with when negotiating settlement.

 

Otherwise, it looks fine.

 

 

Excellent, I shall hand it all in at court tomorrow.

 

Three copies of everything, so that includes N1 form, POC and schedule of charges?

 

Anything else I need?

 

Daft question but do they need to be in three separate envelopes or in one and can each 'bundle' be stapled together or should they be left loose?

 

Thanks for all your help with this, it's been great.

[slick132]

Keep it all loose and sort it out as the court staff suggest.

 

[bearing]

It's in, so now sit back and await their next move.

 

Anything I should be doing in the mean time?

[slick132]

Well done - feels good doesn't it.

 

Start putting together the items you need for your court bundle. See the Link in my signature. Make sure everything is relevant to your case - ie a Fixed Sum Loan.

 

Put the items in a file so everything you need will be ready to access and print when required.

 

Three copies will be needed if there's an actual hearing, but you may get away with two for starters - one for court and one for Barclays. If B's agree to settle before court, the third copy will not be needed.

 

In any event make sure you've loads of paper and printer ink.

[bearing]

Excellent, I shall get onto that now.

 

I've got this unquenchable urge to become a serial litigant!

[bearing]

Re: The Court bundle, what do Witness Statements refer to?

[slick132]

Woops !!

 

Just noticed the court bundle in NOT included in my signature.

 

Here it is -

http://www.consumerforums.com/resources/templates-library/48-bank-templates/119-basic-court-bundle

 

Re your Q about Witness Statements, this is from the Bank Library Templates - http://www.consumerforums.com/resources/templates-library/48-bank-templates/137-lloyds-witness-statement-

Edited October 8, 2009 by slick132

[bearing]

No panic needed, I had a root around and found it, already downloaded the zip file.

 

Thanks for the Witness Statement link.

[bearing]

Just received Notice that Acknowledgement of Service has been filed letter in the post today, seems that BPF want to defend all of the claim.

 

What's my next move?