The heat is on............SKB vs Bcard

[skbuncks]

:-) CCA 1974 and Data Protection Act LBA delivered today:-)

 

Your item with reference DH078831964GB was delivered from our CENTRAL MANCHESTER Delivery Office on 24/10/06 .

 

Take that bcard. I am now on my knees praying they cant find my contract, was ~14 yrs ago that i got it so think theres a good chance its gone missing. Not gunna get my hopes up to much though cos I aint feeling that lucky

[noomill060]

Yay! Let us know what happens.

[skbuncks]

Well they have cashed my cheque for a pound today, so looks like my contract is on its way. Arse

[skbuncks]

They have however put the quid on my card so at least I havent lost any cash

[skbuncks]

Having cashed my cheque they seem to have forgotten to post me my contract, fools. Only 2 days left until they default. No response as of yet to my DPA LBA either but theyve definetely recieved it as was in same envelope as CCA.

Firing LBA off tomorrow as deadline has passed but havent been able to get to post office recently

 

skb

[Mike220359]

:-) CCA 1974 and Data Protection Act LBA delivered today:-)

 

 

 

Take that bcard. I am now on my knees praying they cant find my contract, was ~14 yrs ago that i got it so think theres a good chance its gone missing. Not gunna get my hopes up to much though cos I aint feeling that lucky

 

I'm sorry to tell you that you may not be able to claim the unfair chrgaes, since as you have said your account was opened in approx. 1992. It may be worth Pmin a moderaotor because I'm pretty sure that I have read on another thread The unfair terms and conditions act does not apply to any contract signed before 1995, so I'm afraid your claim may be struck out.

 

Mike

[skbuncks]

Thank you for your concern Mike you are indeed right in some respects

The Unfair Terms in Consumer Contracts Regulations 1999 came into force on 1st October 1999 and replaced the The Unfair Terms in Consumer Contracts Regulations 1994. The 1994 act came into force on 1st July 1995. I am however unsure about how they apply to contracts signed before 1995 I need to read up some more.

Still in the event that they cant be applied there is no need to lose hope. Not only are we supported by case law in relation to penalty charges i.e

Case Law Reference: Dunlop Pneumatic Tyre Co Ltd

v New Garage & Motor Co Ltd [1915] AC 79

- 2

(MM) -- Case Law Reference: Alfred McAlpine Capital Projects Ltd

v Tilebox Ltd [2005] EWHC 281 (TCC) - 2

But there are also clauses in the Unfair Contract Terms Act 1977 which states it is also illegal to inset terms into a contract which seriously distort the contract in favour of one party, especially where the parties are of dis-similar negotiating power.

Addionally

9 Effect of breach

(1) Where for reliance upon it a contract term has to satisfy the requirement of reasonableness, it may be found to do so and be given effect accordingly notwithstanding that the contract has been terminated either by breach or by a party electing to treat it as repudiated.

 

(2) Where on a breach the contract is nevertheless affirmed by a party entitled to treat it as repudiated, this does not of itself exclude the requirement of reasonableness in relation to any contract term.

 

 

11 The "reasonableness" test

 

(1) In relation to a contract term, the requirement of reasonableness for the purposes of this Part of this Act, section 3 of the Misrepresentation Act 1967 and section 3 of the Misrepresentation Act (Northern Ireland) 1967 is that the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.

 

(2) In determining for the purposes of section 6 or 7 above whether a contract term satisfies the requirement of reasonableness, regard shall be had in particular to the matters specified in Schedule 2 to this Act; but this subsection does not prevent the court or arbitrator from holding, in accordance with any rule of law, that a term which purports to exclude or restrict any relevant liability is not a term of the contract.

 

(3) In relation to a notice (not being a notice having contractual effect), the requirement of reasonableness under this Act is that it should be fair and reasonable to allow reliance on it, having regard to all the circumstances obtaining when the liability arose or (but for the notice) would have arisen.

 

(4) Where by reference to a contract term or notice a person seeks to restrict liability to a specified sum of money, and the question arises (under this or any other Act) whether the term or notice satisfies the requirement of reasonableness, regard shall be had in particular (but without prejudice to subsection (2) above in the case of contract terms) to—

 

(a) the resources which he could expect to be available to him for the purpose of meeting the liability should it arise; and

 

(b) how far it was open to him to cover himself by insurance.

 

(5) It is for those claiming that a contract term or notice satisfies the requirement of reasonableness to show that it does.

 

Im currently reading up on the Supply of Goods and Services Act 1982 to see if theres anything in there that might help, am also sure there was a later act around 1989 but havent found it yet.

Obviously any Moderator help would be much appreciated

skb

[skbuncks]

For anyone concerned about this issue ive a thread in the general forum to discus this issue further. The responses so far are pretty positive

http://www.consumeractiongroup.co.uk/forum/showthread.php?t=44548

skb

[skbuncks]

Av just recieved a rather official loolikng letter from bcard. got all excited thinking it was a partial settlement, but no its an offer to join their Leisuretime discounts programme for a mere £6.99 a month. They've tried to sweaten the deal with a few vouvhers but i think i'll give it a miss

[andyhargreaves]

Av just recieved a rather official loolikng letter from bcard. got all excited thinking it was a partial settlement, but no its an offer to join their Leisuretime discounts programme for a mere £6.99 a month. They've tried to sweaten the deal with a few vouvhers but i think i'll give it a miss

 

I got excited by this today as well!!!

 

Instead, I got allocation papers from Court...

[skbuncks]

LBA delivery confirmed 9/11/06. Fourteen days until MCOL.

 

skb

[skbuncks]

LBA delivery confirmed 9/11/06. Fourteen days until MCOL.

 

skb

[skbuncks]

The twelve day deadline for receiving my true signed copy of contract ran out on friday so I believe they are now in default. Useless buggers

 

skb

[skbuncks]

The 40 days for Data Protection Act disclosure have now passed so am filing in the Information Commissioners Office complaints form. In section 6 'Details of Problem' I have wrote this

 

On the 25th September 2006 I made a S.A.R - (Subject Access Request) to Barclaycard requesting details of transactions and charges levied on my account for the previous six years. Additionally I requested that where there has been any event in my account history over this period which has required manual intervention by any member of there staff, or any other person, that I would require disclosure of any indication or notes which have either caused or resulted in that manual intervention or other evidence of that manual intervention in relation to my business with them. They responded with some limited information in the form of statements from May 2004 onwards.

They claim that information prior to May 2004 is exempt from the Data Protection Act as 'Statements are copied onto microfiche in date order and more than one customer statement may be held on an individual film of microfiche. These statements are not stored by reference to account number of customers name and are not "readily accessible" within the meaning of the Data Protection Act. These statements are not retained in a relevant filing system and therefore do not fall within the class of documents to be produced pursuant to a subject access request. They can be obtained from out Customer Services Dept at a cost of £3 per statement'.

I believe that they are erroneous in their assertion that microfiche is not a relevant filing system and that their archives are indeed subject to the 40 day ruling of DPA disclosure. Accordingly Barclaycard have not yet complied with their obligations under the Data Protection Act 1998.

 

Now I just need to photo copy the fob off letter I was sent together with the letters I sent them, bob them in the post and eagerly await a response.

 

skb

[Rumblestrips]

I therefore require repayment of a total of £580 in charges plus contractual interest of £397.23. I have calculated the interest by using your purchase rate of 17.7 % APR (which is the lowest rate of interest evident from the statements you have supplied) I have been charged in the understanding that there is an implied principle of “mutuality” and “reciprocity” in the contract. I believe that I would be entitled to claim interest at your current purchase rate of 24.9 % rate but as a gesture of goodwill I will not be pursuing this avenue. The total as of 9th October 2006 is therefore £977.23. Note that interest will continue to accrue at a daily rate of £0.02 until settlement is reached. Please find attached a schedule of charges inclusive of contractual interest which I am claiming with this letter.

 

Hello, I have been reading your thread and I too am going down the contractual interest route with Barclaycard so will be interested to see how you get on. However, as maths was never my strong point I wanted to know how you calculated it and if there is a spreadsheet I could use? Also how do you work out the daily rate? I am claiming at the rate of 19.9% APR, so a few pointers would be great!

Many thanks

[skbuncks]

Hi Kathryn

 

I find the best spreadsheet to use for this is the one by Mindzai

see thread Mindzai & Lucid vs Lloyds TSB

 

and the spreaedsheet is in post 22 and can be downloaded from here Verzend.be - send files up to 1GB for free - CompoundSheet_v1.6.xls

(note that the link take you to a web site from which you download the spreadsheet, for some reason you also have to wait 10 seconds before it allows you to do so but dont worry, it works)

its really easy to use, you simply enter your interest amount (19.9 % in your case) in the notes sheet and all your charges in the charges & interest sheet. The compounded interest for each charge will then be displayed in the C.Interest (Daily) sheet.

 

It will also allow you to calculate the interest levied by bcard on each of your charges but this requires balance information which due to the microfiche issue you probably dont have. In any case this type of interest is usually minimal iwhereas compound contractual interest can add up to a nice tidy sum.

 

Anyway let me know how you get on with the spreadsheet an if you've any probs i'll do my best to help

 

skb

[Rumblestrips]

Thanks very much SKB. Just one question, it states that this spreadsheet is NOT for Credit Cards. Is there another one I can use for CC's?

[skbuncks]

Hi Kathryn

 

The spreadsheet is designed such that it will calculate interest levied on the charges by the bank where an overdraft is in place, so in that respect in cant be used for CC's. However if all you require is it to calculate the compound contractual interest as applied to each charge and NOT the interest on that charge then it can be used - hope that is clear

 

example your limit is £350 and a charge takes you too £370. Your monthly statement will have interest for the balance upto £370 but you can only claim the interest for the balance over £350. Now the spreadsheet will only calculate this interest for bank accounts and not CC's. Typically this interest doesnt amount to much and is often not worth the bother

The calculations it uses to calculate compound contractual interest are however still valid. therefore the compound interest values on the final sheet can be used for CC's

 

I have not came accross another spreadsheet which will do these calculations.

 

skb

 

ps how much do your charges total upto??

[skbuncks]

I Have an atered version of this spreadsheet which will print out a table displaying the charges you have incurred and the contractual interest you wish to claim on each charge, if you want it I can PM u it

[Rumblestrips]

I worked that out after I had sent last message! But glad you have confirmed it for me.

 

My charges add up to £564 and I have calculated £117 in Compound interest at 19.9%. If you could PM me the other spreadsheet that would be brill.

 

BTW that thread you mentioned 'mindzai & lucid Vs lloyds tsb' has had me engrossed at my desk for the past few hours! Almost lost track of time... and now its home time! yey!

 

Kathryn

[skbuncks]

Hi Kathryn

 

Hear is the spreadsheet

Verzend.be - send files up to 1GB for free - 1_CompoundSheet_v1_1_.6printable.xls

If you just copy and paste your charge details from your spreadsheet onto the charges and interst tab in this one and then fill in the details on the notes page then it should work.

 

Your interest seems a bit low are most of the charges quite recent??

 

skb

[roydosan]

I have a spreadsheet which calculates compound interest and contractual interest (instead of sec 69 interest). If anyone wants a copy PM me.

[skbuncks]

Received a letter from Carol Jones today the jist of it being

 

We believe that our charges are both fair and transparent

In your correspondance you have outlined case law which you say supports your view. As im sure you will appreciate barclaycard is aware of all the information you have drawn to our attention, I must inform you however that we disagree with your legal analysis Its not a question of them disagreeing, the law is the law

However, as a gesture of goodwill and without any admission of liability bcard is prepared to credit to your account the difference between the charges that you have incurred and the £12 fee recommended by the OFT. The OFT never 'recommended' £12. In accordance with the charges incurred this would amount to £110. Quite how they arrive at this figure I dont know, would seem I have been charged 13.75 times

I have today arranged for a cheque to be sent to your home address under separate cover. A cheque for £110 was also in the post. Note thats a cheque and not a credit to my account

 

My response, well I will accept it as a partial payment only. As for the amount I dont quite know how they have arrived at it. By my reconning I have been charged 11 times since may 2004 and estimated at 18 times between april 2001 and may 2004. The £110 divided by 8 is 13.75?? as all my charges have been for £20 pounds it would seem their maths just doesnt add up. Additionally it would seem I have only been charged twice between april 2001 and may 2004. This i find very, very hard to believe as this was when I was at my worst with regard to charges.

So whilst I will gladly accept their £110 I will pursue the rest based on MY estimate until they supply me with evidence that my estimate is wrong

 

skb

[Rumblestrips]

Its quite ironic that maths isn't their strong point! Dunno how they came up with that figure??

Stick to your guns, and pursue them for the amount YOU believe is owed to you. You'll get it in the end.

[skbuncks]

Cheers Kath, I no that, you no that, bcard no that but they still like playing silly beggars

 

Does seem a bit odd, get the feeling that they have only included charges post may 2004 and I might have missed a couple when going through my statements so am gunna recheck them.

Maybe out of shear generosity they've refunded me £10 for each charge rather than £8??? But somehow I thing not.

 

27 days and counting since CCA request and still no sign of signed copy of contract. What are they playing at. They cant surely have lost it can they??

 

skb