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

[skbuncks]

Greetings one and all

 

Today I have sent off my S.A.R - (Subject Access Request) to the fools at barclaycard. Reckon they've taken around 700 of my hard earned good old english pounds over the years and I want it back. Was going to wait until i'd finished with Lloyds before taking on the might of the BC Corporation but got bored with all the Dilly Dallying of the Trustee Savings Bank (or maybe thats Totally Sh*t Bank).

 

Fully expect the usual microfiche argument for statements before 2004 so am quite happy to put in a grossly inflated estimate - If they want to challenge it they're gunna have to prove it. Am so excited I can hardly wait to send off my Preliminary Request for payment

[skbuncks]

Lets hope so, they deserve a good kicking. Certainly gunna make sure I put my complaint in, providing I need to of course

[skbuncks]

Royal mail are a bunch of useless Wxxxxx's.

Status of SAR ltr - unknown

SAR ltr delivered - unknown

£1 well spent on recorded delivery - definetely not

[skbuncks]

Royal mail dont seem to know whether they've lost my SAR or if its been delivered and not signed for. Anyone know who I can phone at bcard to confirm whether they have received my SAR. Sent my SAR to 1234 Pavilion Drive address.

 

Thxs in advance

 

skb

[skbuncks]

Received my statements on Saturday and as expected nothing before may 2004. I also requested a copy of my signed contact along with my statements etc and this has also not arrived. I'll be sending off the letter for Data Protection Act non compliance on the morrow and filing my complaint with the Information Commissioners Office tonight (if i've time)

 

In the process of toting up amount taken and will then estimate for the period oct 2000 to may 2004. I intend to go down the route of claiming contractual interest and will see where it gets me, im on a crappy ex student visa from bcard which charges around 17.7 %APR, not sure what the APR is for unauthorised spending/over limit but should be able to find out without to much trouble so should be onto a nice little earner with the compounded interest

 

skb

[skbuncks]

I have now went through the statements kindly supplied by bcard. From may 2004 to march 2006 I have been charged 11 times at £20 a pop. This gives an average of 0.5 charges per month, or in other words 1 charge every 2 months. I have then used this is an estimate for the number of times I have been charged since april 2001. Barclaycard claim that they did not introduce charges until this time and without any evidence to the contrary I dont feel confident to estimate for charges before this time. If evidence presents itself at a later date that this is not the case then i shall submit a second claim.

 

So to estimate my charges I have applied 1 charge every 2 months on the statemnet date of the 20th of the month which gives a further 18 charges of £20. This gives a grand total of £580.

 

I also intend to claim for contratual interest at 17.7 % apr which equates to a daily rate of 0.04 % compounded for each charge since the date the charge was levied. I am claiming this on the implied principle of "mutuality" and "reciprocity" in the contract. The rate of 17.7 % is the rate levied when i first obtained the card, the rate im being charged now has recently increased to 24.9 %. However using a variable interest rate calculation is far to complex for my simple mind to cope with so am sticking with 17.7 %. In the event things end up in court i'll make sure to point out to the judge that i've been very lenient in the rate im claiming for - just may earn me sum browny points.

 

So following this reasoning the interest componds to £397.23 giving a total of £977.23. :)

I intend to include in my particulars of claim (when/if its reaches that stage) that I claim in the alternative the cc s.69 rate of 8 % (£139.65 giving a total of £719.65) :|

[skbuncks]

Here is a copy of preliminary letter for claiming charges plus contractual interest at 17.7 % that i intend to send. Anyones comments of the contents of the letter would be appreciated as I havent been able to find any examples which contain requests for contractual interest payment.

 

Tracey Burgess

Barclaycard,

PO Box 599,

Manchester,

M60 3NF

 

Request for Repayment of Charges

 

Re: Barclaycard Visa: xxxxxxxxxxxxxxxx.

 

Dear Tracy Burgess

 

I thank you for your letter of 5th October 2006 regarding the Data Protection Act Subject Access Report.

 

My request

I am writing to ask you to refund to me the charges which you have levied from my account since April 2001.

I now understand that the regime of fees which you have been applying to my account in relation to over limit fees and late charges are unlawful at Common Law, Statute and recent consumer regulations. If you say that they are not, then will you please demonstrate this by supplying me with a full breakdown of the costs to which you have been put by as a result of my breaches, in order to reassure me that your penalties really do reflect your costs.

Additionally, it has now been confirmed that your particularly high level of penalties are considered to be unfair per se by the OFT who reported on the 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.

 

Your responsibilities

I would draw your attention to the terms of the contract which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.

I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them.

Your concealment of the true nature of your charges has prevented me from asserting my right until now.

 

What I require

I require full repayment of these charges, which I calculate at £220 for the period May 2004 to March 2006. As you have failed to supply a complete list of transactions and charges I have estimated charges for the period April 2001 to May 2004. This estimate is based upon an average charging rate of 0.5 charges per month for the period May 2004 to March 2006 (11 charges in 22 months). This results in a total of 18 estimated charges totalling £360. 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 interest 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 £0.29 until settlement is reached. Please find attached a schedule of charges inclusive of contractual interest which I am claiming with this letter.

 

My targets to resolve this matter

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you will prefer to do this than merely respond with standard letters and leaflets or proceed to court.

 

I will give you 14 days to reply to me accepting unconditionally my request for £977.23 repayment and letting me know a date by which I will receive this.

 

If you do not respond or you do not respond positively within this time period, I shall send you a letter before action before taking court procedures to claim these unlawful charges. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.

 

After that there will be no further communication from me and I shall issue a claim at the expiry of the deadline.

 

I trust that will not be necessary and I look forward to hearing from you.

 

 

Yours sincerely,

 

Gary

[skbuncks]

I have amended the What I require section to::

 

I require full repayment of these charges, which I calculate at £220 for the period May 2004 to March 2006. You have failed to comply with my request under the Data Protection Act 1984 and 1998, including the right of subject access under these acts, for the relevant information. Your own submission that the relevant data is now only held on Microfiche, in date order and is therefore excluded from the Data Protection act, has left me no alternative but to estimate charges for the period April 2001 to May 2004. This estimate is based upon an average charging rate of 0.5 charges per month for the period May 2004 to March 2006 (11 charges in 22 months). This results in a total of 18 estimated charges totalling £360. 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 £0.29 until settlement is reached. Please find attached a schedule of charges inclusive of contractual interest which I am claiming with this letter.

 

Letter to be posted first thing in the morn

 

skb

[skbuncks]

Well after sitting on my ar#s for a week eating pies i've finally sent my prelim letter yesterday. Only 14 days to go until I get to send my LBA. Still ne sign of a copy of my signed contract (12 days left for them to comply).

 

Just wondering if they cant supply me with a copy of the contract does this mean they cant prove I agreed to any of there T&C's? and thus that I did not agree to pay them back any of the money i've spent on my card?? (lol) and that I certainly havent agreed to pay any of there fines????

 

skb

[skbuncks]

Right I see thanks for that. I just included a line in my SAR asking for my contract. Ill have a little search on CCA and then fire off another letter. Lets hope they cant find my contract, that would really, really make my day

[skbuncks]

Have searched around and have so far only found template letter to be used when account has gone to DCA, so have modified a little to this

 

Request for true copy of signed agreement under the Consumer Credit Act 1974 s.77-79

 

Account: xxxx xxxx xxxx xxxx

 

I require you to supply the following documentation.

 

1. You must supply me with a true copy of the signed agreement in reference to the above account. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for running account credit) - your obligation also extends to providing a statement of account. I enclose a £1 postal order in payment of the statutory fee, PO Serial Number xxxxx.

 

2. You are notified that you are obliged to supply these documents, whether you are the original creditor or not under S189 of the CCA 1974.

 

Non-compliance with my request is a criminal offence under the above Act and will result in a report being submitted to the relevant statutory authorities.

 

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.

 

Take note at this stage, that any legal action you may contemplate will be both vigorously defended and contested.

 

Note sure about the bit in red as have also seen it written as Fixed sum credit

Help appreciated

SKB

[skbuncks]

Question..

Is a credit card currently in use classed as running account credit or fixed sum credit???????

 

[skbuncks]

Many thanks, think the top one fits best so will use that. Am gunna send it to the PO box 599 manchester address.

[skbuncks]

Have just received reply to preliminary letter from Katrina Downs in manchester. They are SOOO sorry to learn of my dissatisfaction and hope to resolve matters by the 8th of november. Dont feel like giving them that long as the deadline runs out on the 1st so i'll fire off the LBA then.

[skbuncks]

In light of the findings of information commisioners office against abbey national and there "unrelevant" microfiche filing system have pulled together the following LBA to send to barclaycard to try and force the issue

 

I am in receipt of the documents that you have supplied in response to my Data Protection Act information request dated 25th Sept 2006. The disclosure of personal data is incomplete in that at least the following documents are missing.

 

1) You have failed to provide a complete list of transactions and charges.(Oct 2000 to May 2004) your assertion being that information is stored on microfiche and is therefore not a relevant filing system. However I am sure you are aware that the Information Commissioner recently found against Abbey National on microfiche disclosure and that these archives are indeed a relevant filing system and are therefore subject to the 40 day ruling for Data Protection Act disclosure. With this viewpoint in mind and in light of the ensuing visit of the Information Commissioners Office to yourselves I would therefore be grateful if you could expedite delivery of the requested data to me at the above address.

2) You have provided no notes, or documents relating to any legal action between you and myself.

3) You have provided no notes, or documents relating to instances of manual intervention.

 

This is not an exhaustive list by any means, it is just an example of some of the information I am missing.

 

Accordingly, I have to tell you that you have not yet complied with your obligations under the Data Protection Act 1998.

 

You have a further 16 days from the date of this letter to comply.

Lets see if this gets me anywhere

 

skb

[skbuncks]

Its a Glorious Day. Our dear friends at bcard have just landed me with a £12 fine for late payement and a £12 fine for exceeding limit, even though it was there first fine which took me over my limit

[skbuncks]

Well, im throwing it right back at em:eek:

[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

[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

[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

[skbuncks]

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

 

skb