HSM v Bcard Mastercard

[Still_surviving]

Update time

 

No further letters from any of Barclays in house rotweillers, but I did give them one further opportunity to respond to my claim for charges & interest. Didnt even get the courtesy of reply.

 

Am going to file proceedings on monday morning, but seem to remember people saying MCOL wasnt the best method to use in such cases. Does anyone have a link to a good template for setting out a POC, either via MCOL or other methods?

 

Also - I need to get this concept of Unlawful Rescission clear in my head lol...I have previously written to BC accepting their unlawful rescission of contract, due to the DN being defective as the balance claimed contained a high level of unlawful charges and associated interest (£2300 out of £8000 total).

 

Am i right then in thinking that they can only claim the arrears stated on the defective DN. and also, if that is the case, what happens to the rebate of charges and interest, should i be successful? The arrears were only about £475. Are they within their rights to apply the whole rebate to the card, or do I have a claim for the rebate to be sent to me, net of the arrears? Sounds kinda unlikely lol.

[slick132]

Hi SS,

 

As regards the dodgy DN and Unlawful Rescission, I've heard lots about this but not yet seen BC or any other bank take the subject seriously. If anyone can show me a successful thread about this matter, I'd be grateful.

 

File the claim at your local county court. For the BC POC's, follow the link in the BC Stickies which will get you there in a few moves.

 

If you file your claim, you can make it part of your settlement negotiations that you be paid direct. BC will not like this and will tell you they'll Set Off the refund to wards the balance. But, unless they make a counterclaim against you for the debt, they have no grounds to insist on the Set Off.

 

So you may get the refund if you stick to your guns and show no signs of weakness.

 

Of course, that'll leave the balance owing on the a/c which you may still have to find, if you're unsuccessful in claiming the debt is not due.

[Still_surviving]

Slick

 

Thank you - have found the template and will work on it today.

 

Having read a 100 page plus thread over the weekend on defective DNs and UR, I was surprised to see your comment, that it doesnt seem to be a major factor. I thought the whole idea of having a DN balance owing that included a lot of penalty charges included, was that it rendered the DN invalid, and meant that at best, they could only claim the arrears stated at the time.

 

Confused

[slick132]

Hi SS,

 

Having read a 100 page plus thread over the weekend on defective DNs and UR, I was surprised to see your comment, that it doesnt seem to be a major factor.

This isn't what I meant at all.

 

I said, "......I've heard lots about this but not yet seen BC or any other bank take the subject seriously. If anyone can show me a successful thread about this matter, I'd be grateful."

 

Whilst I agree the inclusion of penalty charges in a DN total makes the DN inaccurate, I haven't seen much to show that the banks accept the concept of "unlawful rescission".

 

Anyway, let's see how you get on with the refund claim.

[Still_surviving]

Finally! a response.....

 

In response to my LBA, Ive received a detailed response from BCard which included a schedule detailing how they have calculated their offer to me. This I have scanned and attached below:

 

 

http://i816.photobucket.com/albums/zz90/Still_surviving/Mastercard/MCardChargesOffer1.jpg

 

You will see they have offered the sum of £1036.04 against my claim of £2150 odd

 

Initially I was quite encouraged at the attitude they had taken, but once I scatched the surface, I realised it threw up a couple of important points for all of us claiming charges and contractual interest. Im not sure if CAGgers such as Noomill060 still read these forums, but I would welcome any input on the points made below:

 

1. They have removed my initial three items as being over six years old - well funnily enough, if they had responded when I first wrote in Nov.2009, they wouldnt have been out of date. I think I can deal with this point.

 

2. As discussed on the forums, I used the current cash advance rate when calculating my claim - 27.9%. In the back of my mind I realised that I might well have to negotiate on this, as this had fluctuated over the period of the claim, from 17.9% to 27.9%. However, it appears that while their schedule takes account of these variations, it uses the purchases rate, not the cash advance rate, and there is a consistent 3% difference on this. Am I definitely right to insist on the higher figure even allowing for variations?

 

3. Most interestingly (and perhaps for those with a maths head only) I cannot see that the interest they are offering is compounded, rather a flat calculation based on a monthly rate. For instance, looking at the first charge on the list of £20 from 08.07.04, they state this as being 2241 days on a purchase % of 17.9% or 1.385% per month.

 

Using the CI calculator suggested on this site, it throws up £40.45 in interest whereas they offer £20.41.

 

If we take a 30 day month, their 2241 days becomes 74.7 months. A flat rate calculation therefore becomes (£20 x 0.01385 x 74.7) = £20.69 or very close to the £20.41 they have offered. The same method seems to hold up for any of the charges taken at random off the list.

 

Is this just a question of them knocking up a quick excel sheet and getting the underlying principle of interest calculation wrong? Or can they come back to me and argue that this is genuinely the way that they have calculated the interest over the years?

 

Sorry for the long post, but I genuinely felt this would throw up some important issues for those of us claiming from Barclaycard and their spin offs.

 

 

All the best

Edited August 28, 2010 by Still_surviving

[Still_surviving]

Ive linked below a revised claim spreadsheet Ive just prepared which differs from my original one in that it applies the cash apr% to each charge using the rate in force at the date of the charge. I realise that I am probably being overly fair to Barclaycard in that for instance the early charges are compounded entirely at 21.4% whereas the actual rate rose up to 27.9% by mid 2007.

 

http://i816.photobucket.com/albums/zz90/Still_surviving/Mastercard/RevisedClaim310810_0001.jpg

 

This has the effect of reducing my claim from £2150 to £1715, but I feel that if this goes as far as issuing proceedings, I will be seen to have acted reasonably. Besides which, if Barclays allow this to happen, the 8% statutory interest will more than offset this.

 

The only other thing Im considering, is whether to apply for statutory interest at the contractual rate, rather than the flat 8% if things get that far. The difference would be £420 but im wondering if that would push the judge toward believing im acting out of greed?

[slick132]

Hi SS,

 

Re your points above :-

 

1. They won't refund charges older than 6 years voluntarily. You'll have to file a court claim and argue that the older charges are covered by s32 Limitation Act 1980.

 

2. Claiming interest in restitution is not an exact science. To have the best chance of success in your court claim, you could take an approx average of their cash advance rate over the period of your claim.

 

3. BC will pay only what they think they can get away with. To get what you want, you'll have to file the court claim.

 

[Still_surviving]

I was waiting until I received a final response from BC, which duly arrived today (despite the date on their letter!)

 

I enclose a scan of this, and have underlined a somewhat interesting sentence....no reference to 'goodwill gestures' here

 

http://i816.photobucket.com/albums/zz90/Still_surviving/Barclaycard/BCardLetter200910.jpg

 

I will now be filing at court, which I am okay with.

[slick132]

Hi SS,

 

In response to your PM, here's the link to the Court Bundle - http://www.consumeractiongroup.co.uk/forum/content.php?560-Basic-Court-Bundle

 

Let me know if you can't access it as there have been probs in the past.

 

8-)

[slick132]

Hi SS,

 

Advice from another case:-

 

A BC case for PPI was lost yesterday and we should always try and learn from experience or mistakes.

 

See here about including, in your court bundle, case law for :-

 

1. Section 32© Limitation Act 1980 re claiming beyond 6 years - Kleinwort Benson v Lincoln City Council.

 

2. Claiming interest in restitution - Sempra Metals v Inland Revenue Commissioners.

 

Google either case and you should find a summary. Eg for the Sepra case :-

 

http://www.google.co.uk/url?sa=t&source=web&cd=2&sqi=2&ved=0CCAQFjAB&url=http%3A%2F%2Fwww.publications.parliament.uk%2Fpa%2Fld200607%2Fldjudgmt%2Fjd070718%2Fsempra-1.htm&ei=t50tTYGsMZeShAfpj8XcCQ&usg=AFQjCNGPD1er98Cu0v9T_XYE-HiuXVsRgA

 

and

 

http://www.google.co.uk/url?sa=t&source=web&cd=7&sqi=2&ved=0CEQQFjAG&url=http%3A%2F%2Fbusiness.timesonline.co.uk%2Ftol%2Fbusiness%2Flaw%2Freports%2Farticle2133988.ece&ei=t50tTYGsMZeShAfpj8XcCQ&usg=AFQjCNFlCMePV9BKcZLKGhFnoz1Hq6wJGQ

 

8-)