BC Claim ***WON*** charges beyond 6 years + Compound Int't***

[up2meears]

Morning All.

 

Starting a new thread about the charges as advised by site team.

 

Qucik bit of history - Had a BC since late 2001 which defaulted in 2007 due to long term sick leave. Tried claiming on the PPI, told no due to pre existing condition so tried to reclaim PPI back in 2007. Their final response was 'Not a chance, because I had a cooling off period'. Long story short, have asked them again to refund PPI and interest, waiting for outcome.

 

Now the charges.

Again wrote to them in 2007 asking that the charges be refunded due to them being excessive, unlawful etc.

Final response was, a goodwill gesture of the charges 'which would reflect on my next statement'

The account by this time had been passed to the lovely 1st credit and was paying token payments. - 1st credit first refused my token payment as they said it was un-feasible as it would take 56 years to pay wrote back explaining to their Strategy and Audit Controller that with a title like that, they should know the meaning of token payment, received a letter from their Administration team shortly after accepting the token payment

Anywhoo, wasn't as clued up back then as I am now to know that as the debt had been sold to 3rd party, I should have received the funds, and the 'good will gesture' never reduced on the balance held with 1st credit. As I was going through a bad time then and as they were accepting the token payment and not hounding me, I just let it go, until putting the account in dispute in 2009 for never receiving my CCA.

 

So as we stand, the account is still in dispute (1st credit haven't been in touch for a while) and I have sent BC a spreadsheet with the charges and compound interest, and a letter explaining that as the goodwill gesture was never applied to the account or sent direct to me, I was making a fresh claim. Which is better for me because I can pay off the balance owed and pay off another one that's been hanging around my neck like the Grimm reapers choke hold.

 

Their 14 day deadline was up yesterday, so I'm wondering if I should fire off another letter or start with the court claim? And also, does the date on the spreadsheet change to reflect the date I next do anything or stay as original date.

 

Thanks in advance guys and girls for your advice.

 

Up2

Edited March 29, 2012 by up2meears

[slick132]

Hi Ears,

 

This case has to be handled carefully for the following reasons :-

 

The original refund was made (or not made) 5 years ago.

 

By NOT rejecting the offer at the time, you are deemed to have accepted it by default. You can argue this by saying you didn't realise at the time that you should have received a direct refund.

 

If they didn't apply the refund to reduce the balance, either with BC or with the new 3rd party debt owner, you have slightly stronger grounds to revisit the matter now.

 

Can you confirm :-

 

1. When was the a/c passed to the new owner.

 

2. What was the date of the letter saying BC would refund to the new owner.

 

3. Was any mention made at the time of this being accepted by you in full and final settlement of any such claim against BC.

 

4. Are you certain that no refund was applied when the a/c was with BC or after it was sold on.

 

5. Do you still have BC's letter about offering to refund the charges as a goodwill gesture.

 

[up2meears]

Hi Slick,

 

Thanks for your reply. Please see my answers below

 

Up2

 

 

 

Hi Ears,

 

This case has to be handled carefully for the following reasons :-

 

The original refund was made (or not made) 5 years ago.

 

By NOT rejecting the offer at the time, you are deemed to have accepted it by default. You can argue this by saying you didn't realise at the time that you should have received a direct refund.

 

If they didn't apply the refund to reduce the balance, either with BC or with the new 3rd party debt owner, you have slightly stronger grounds to revisit the matter now.

 

Can you confirm :-

 

1. When was the a/c passed to the new owner.

Account assigned to 1st Credit Jan 08

 

2. What was the date of the letter saying BC would refund to the new owner.

Date of letter was 16/07/08 (sorry not 2007 as mentioned in my first post) They didn't say they would refund to new owner the letter said 'this credit will be reflected on your next statement'

 

3. Was any mention made at the time of this being accepted by you in full and final settlement of any such claim against BC.

Page two of the letter is missing, so possible. It's not headed as Final Response so not sure

 

4. Are you certain that no refund was applied when the a/c was with BC or after it was sold on.

Nothing received to say as much, and balance unchanged on subsequent letters from 1st Credit

 

5. Do you still have BC's letter about offering to refund the charges as a goodwill gesture.

Yes -well most of it

 

[slick132]

Hi Ears,

 

If no refund was made to you, to the BC a/c or to the debt with 1st Credit, I think this makes your current position a little stronger.

 

On the basis that the claim being made now is a fresh one, you should send the the Prelim Claim letter (which I think you did 2 weeks back), then the LBA giving them a final 14 days.

 

Enclose with the LBA an updated spreadsheet showing interest to date. Are you claiming Compound Interest at 24.9% ?

 

[up2meears]

Hi Slick,

 

Thank you very much for your advice.

 

I will get the lba ready to go.

 

The spreadsheet I sent them two weeks ago showed the interest at 27.9% which is what was showing on 2006/2007 statements, but I will change it to 24.9%.

 

As the account had been sold to 1st Credit by the time I claimed, could BC have reduced the balance and 1st Credit just not bothered to of informed me, in order to get the extra cash? I received letters from 1st right up to the time I put the account in dispute (May 2009 - so 10 months from the BC offer) and the balance was the same (minus payments I had made).

I wouldn't put it past them

 

Anyway, once again thank you for the advice, I'll keep the thread updated.

 

Up2

[up2meears]

Hi Slick,

 

Sorry, quick question please. The lba template is the letter I sent two weeks ago (without lba and adapted to my situation) should I just fire that off again, this time stating lba?

 

Thanking you

Up2

[slick132]

Yup, Just head the letter:-

 

LETTER BEFORE ACTION

 

Regarding the possibility that the refund could have been set against the debt, let them point this out if it was, indeed, the case.

 

[up2meears]

Thank you

 

Will send that off first thing and will keep you updated - especially if they did indeed pay the original reclaim to 1st Credit and they failed to inform me.

 

Thanks again

Up2

[up2meears]

Hi,

 

BC, have still not acknowledged the refund of charges letters and the 14 days are up tomorrow.

 

Should I now look at suing them for this, or should I wait until my PPI claim is finished? (had a letter regarding that saying that they are looking into my concerns and will let me have a reply or update as quickly as poss, but no later than 11th May)

 

I'm tempted to wait in case they refer to it all at once (even though I know they are totally separate from each other) but would appreciate some advice in case stalling causes a problem.

 

As always, thanks for your advice

Up2

[up2meears]

Any thoughts anyone please?

[slick132]

Hi U2YE's,

 

If they haven't responded and agreed to refund by Monday, start putting your court claim together.

 

Read through some of the BC **WON** cases here, in particular, Shelleys case - http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?97-Barclays-BCard-and-Woolwich-successes

 

Please take you time to read through the threads and make notes about what you think may help your case.

 

By the time you are ready to file your claim, POC's and spreadsheet, BC may have responded.

 

[up2meears]

Hi Slick,

 

Thanks for your advice (again )

 

I have read bits of Shelleys thread, when redirected from others so will sit down and start from the beginning, plus have a read of other successes.

 

I'm sure I'll be back with questions, but fingers crossed I'll be back with good news from BC. - One can dream

 

Thanks again. Appreciated

 

Up2

[up2meears]

Morning all,

 

I've spent the weekend going through all the BC success threads, and have been getting everything together ready to start court action in reclaiming charges.

 

Before I post up the POC, for perusal I have a couple of questions please.

 

1. I sent both the prelim letter and lba, to the 51 Saffron Road, Leicester address (although I put Stratton Way - don't know where that came from - The postcode was correct so not too worried about the road - The PPI one went to that address too, and I've received a reply so no probs with them getting there) Anyway, back to my question. Did I send the charges one to the right address? Should it have gone to the Pavillion Drive, Northampton address? If not, where should it go? I obviously don't want to start a court claim for them to turn around and say, they didn't receive it as it was sent to the wrong address (although I'm sure it would get passed on)

 

2. Shelleys thread was most helpful, when drafting up the POC as her card was taken out round about the same time, and I used her terms and conditions in schedule 1, however, she put December xxxx for the date of the t&c's she was referring to, does anybody know what year this was? Have had a look around but are impossible to find.

 

As always, thanks for your time.

Up2

[slick132]

The address you will use for the Form N1 will be as shown here - http://www.consumeractiongroup.co.uk/forum/showthread.php?173450-Use-the-right-name-when-Filing-against-BC&p=1871443&viewfull=1#post1871443

 

Not sure about the date for Shelley's case but you can ask about it on her thread.

 

[up2meears]

Thanks again Slick for your time.

 

Will post the Q on shelleys thread as advised (dunno why I didn't think of that in the first place )

 

Up2

[up2meears]

Hi again,

 

Have prepared the N1 (at least I think I have) Could somebody please give it the once over and advise on any mistakes or omits. Many thanks

 

Up2

 

Brief details of claim

Money claim for return of credit card account default charges and interest in restitution on these charges

 

Value

Does anything need to be put here? I was going to put what I'm claiming but notice there's a section for that further down on the form

 

Defendant’s Name and Address

Barclays Bank PLC t/a Barclaycard

1 Churchill Place

London

E14 5HP

 

Does, or will, your claim include any issues under the Human Rights Act 1998? NO

 

 

Claim No [ ]

 

 

 

PARTICULARS OF CLAIM

 

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around xx October 2001 whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxx xxx xxxxxxx ("The Account").

 

2.The Agreement essentially consisted of the Defendant providing the Claimant with a credit card (“The Card”) which would allow the Claimant to make purchases and receive cash advances on credit. 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 for exceeding the credit limit and or if a payment is returned. (Full particulars are set out in schedule 2).

 

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 the Card. The Claimant was entitled to use the Card to make purchases and receive cash advances 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 and cash advances at the published rate.

© The Claimant was to pay the minimum payment of 3% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

(d) In addition the Defendant was entitled to charge default fees (“the Charges”) where the Claimant exceeded the Limit, did not pay on the due date or had a payment returned. The Charges are currently £12 for each transgression. Prior to January 2007 the Charges were £20.

 

Penalty

 

9.The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Bank in relation to the Claimant’s transgressions.

 

10. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

 

The Regulations

 

11. At all material times the Claimant was a consumer within the Regulations.

 

12. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations 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.

 

13. 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 the Bank could have expected to incur in dealing with the exceeding of the credit limit, 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 thus within the ambit of Schedule 2 (1) (e) of the Regulations and indicative of an unfair term.

(5) As the Bank 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.

 

14. 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.

 

15. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

 

16.The Defendant wrongly applied Charges to the Account totalling some £[xxx.xx] between [x/x/2002] and [x/x/2007]. Particulars appear from Schedule 2.

 

17. On x/x/2012 the Claimant demanded repayment of the sums wrongly applied.

 

18. The Defendant has not repaid them or any of them.

 

And the Claimant claims:

 

(1) A declaration that the sums totalling £xxx.xx have wrongly been applied to the Account. These charges are older than the normal 6 years but are claimed by virtue of s32 (1) c Limitations Act 1980 as per Kleinwort Benson v Lincoln City Council.

 

(2) Payment of the said sum of £xxx.xx and interest in restitution of £xxxx.xx as per the case of Sempra Metals v Inland Revenue Commissioners.

 

(3) Interest under Section 69 of the County Courts Act 1984 at the rate of 29.9% per annum on the amount claimed daily rate of £1.74 until judgement or sooner payment.

 

 

(4) Court costs of £95.

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

 

Dated

 

Signed

 

 

Schedule 1

 

From Barclaycard Terms and Conditions in force (as of Dec ?). Trying to find out what year this is from

 

3. Credit limit

From time to time we will work out your credit limit and tell you what it is.

 

5. Repayments

each month you must make a minimum payment. This will be;

(a) 3% of the statement balance for Initial Visa, First Classic and Classic and 2% of the statement balance for Gold Barclaycard and Barclaycard Platinum or £5 whichever is more; or if the statement balance is less, the statement balance; or

(b) If a special promotion allows you to put off making repayments for a period, the amount worked out under (a) but with the relevant promotional balance taken away from the statement balance.

The minimum payment must be received by us and paid into your account on or before the payment date.

 

 

 

Schedule 2

 

Will add schedule of charges and head it schedule 2.

[slick132]

Hi U2YE's,

 

Value of claim should be completed (my figures are examples) and should show:-

 

Total of default charges 756.00

Interest in restitution 1,683.58

Total claim £2,439.58

 

Plus interest pursuant to s.69 County Court Act 1984 from the date of issue to date of settlement at the simple rate of 24.9% = £1.66 per day.

 

If you're claiming Int't in Rest'n at 24.9%, the s.69 Stat'y Int can be claimed at that rate too.

 

You put the total claim as per your SOC in the box at the bottom right of the form and it'll show

 

Amount claimed 2,439.58

Court Fee £95.00

Solicitors Fee Nil

Total amount £2,529.58

 

Do not include court costs at item (4) on your POC.

 

Instead 18 (3) should read:-

 

(3) Interest under Section 69 of the County Courts Act 1984 at the rate of 24.9% per annum on the amount claimed giving a daily rate of £1.66 until judgement or sooner payment.

 

The layout is bad above but you can put the figures in neater columns on your claim.

 

[up2meears]

Brilliant!

 

Thanks very much for your advice. I wont be able to get to the court until next Wed, so hopefully BC will be back to me by then. I'll update when I've submitted (or heard)

 

Thanks again for your help, couldn't of got this far without it. You're a star

 

Up2

[up2meears]

Morning all,

 

It's been a few weeks since my last post on this as I haven't had the money to submit the court papers. Will be in a position tomorrow to submit so decided it's time to get this sorted.

 

Barclaycard are still ignoring my request and lba for cc charges, I've not even received an acknowledgement or 'go away' letter - nothing.

 

I'm wondering whether to start again, i.e. re-send the original letter requesting refund, but to the Churchill Place address? or carry on and submit the court form?

 

If I continue to court, I drafted my POC for the N1, (thanks to the help of others threads and advice) but I have a couple of questions please before I complete and print off the final form.

 

In the POC, it mentions the cc agreement and it's terms at the time the card was taken out, however, BC have never been able to provide a copy of my CCA (thinks that's why they admitted mis-selling on the PPI on first complaint) and I don't have a copy of the agreement. So my question is this please - If this was to get to court, would not having a copy of the agreement hinder my case? or would the onus be on BC to prove my POC incorrect? (sorry if this sounds like a daft question, but I have no experience with this sort of thing)

 

Also should I mention in the POC about originally requesting these charges in 2008, or would this be something that would be mentioned in court if it gets there?

 

I've been looking forward to getting this sorted for weeks, but am now starting to feel quite scared about the whole thing - As always, help and advice greatly appreciated.

 

Up2

[slick132]

If it would make you feel more confident, send Barclays Bank PLC t/a Barclaycard a copy of your LBA with a covering letter. Say in it,

 

"I have received no response to my Letter Before Action or earlier letter, sent to the Barclaycard address in Leicester.

 

I enclose a copy of my LBA of xxdate. Unless I receive your agreement to refund within 14 days, a court claim will be made without further notice.

 

For ease of reference, I enclose an updated spreadsheet which confirms the charges of £xxx and increased interest of £xxx, making a total refund now required in the sum of £xxx."

 

Include the bit in the POC about the T&C's that applied. You should try to find some T&C's close to the time you opened the a/c, in case this is needed later.

 

Para 17 of the POC confirms that you've asked for the charges back. You don't need to mention that you also requested this in 2008.

 

It IS scary when you first file your claim against a Global Bank. But it feels brilliant when they agree to refund you.

 

Keep researching the other **WON** threads as everything you need is there for you to find and to use.

 

Edited May 31, 2012 by slick132

[up2meears]

Hi Slick,

 

Thanks very much for your advice, I feel more confident now to carry on with this.

 

I'll prepare the letter for posting, and will of course keep the thread updated.

 

Many thanks

Up2

[up2meears]

Afternoon,

 

Am back again as BC still completely ignoring me.

 

I've completed the N1 ready to take to court, just a quick stupid question please.

 

On the form, the space for the POC is not enough to type everything, and unlike most forms does not give you a chance to continue elsewhere. Do I just attach the rest on an A4 piece of paper? I'm sorry for what seems such an obvious question, but I don't want to get turned away from the court for filling the thing in incorrectly.

 

Cheers

Up2

[slick132]

Make your POC a separate sheet(s) and, on the form in the POC section, say "See POC's on separate sheet."

 

[up2meears]

Thanks slick,

[up2meears]

Hi all,

 

Have now (after nearly a month - long story, don't ask) submitted my N1 for these charges. Bit gutted that it cost me nigh on £20 in postal order and postage fees now that these sort of claims have to be submitted to Salford, but all done now.

 

Will update when I hear something. MBNA, you're next

 

Up2