barclaycard debt sold to Lowell - chasing BC debt

[Hacked_Off]

ok, time to get my finger out now that im off uni for a bit. Hows this;

 

New POC Barclaycard (N1)

Claim No [ ]

 

IN THE [ENTER YOUR LOCAL] county court

 

 

 

BETWEEN

 

[YOUR FULL NAME]

Claimant

 

and

 

 

-Barclays Bank PLC t/a Barclaycard

 

 

Defendant

 

 

 

 

PARTICULARS OF CLAIM

 

 

1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around 18/04/2005, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxxxxxxxx ("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 2006 the Charges were £24.

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 Bank 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 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.

 

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 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.

 

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

 

17.The Defendant wrongly applied Charges to the Account totalling some £[xxxx] between [ xx/xx/xxxx] and [xx/xx/xxxx ]. Particulars appear from Schedule 2.

 

18. On [ date of your preliminary letter ] the Claimant demanded repayment of the sums wrongly applied.

 

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

 

20 (1) Additionally, the Defendant has entered a default notice against the Claimant’s credit reference files. The Claimant contends that:

 

a) The defendant, as a data controller, is processing inaccurate data and the claimant requests the court makes an order for rectification under s.14 of the Data Protection Act 1998. The defendant has disclosed the claimant's personal data to third parties through their data processors of Equifax, Experian ...etc. The processing of data includes disclosing, disseminating and otherwise making available under s.1 of the Data Protection Act. The claimant's obtained from Experian, Equifax etc states that a default marker was placed by the defendant showing that the amount outstanding was £390. Experian, Equifax etc are processing this data on behalf of the defendant by disclosing the data to third parties.

 

(b) The claimant submits that this data is incorrect as owing to unlawful charges totaling £704.00, a default marker is placed on a credit record where it can be established that the debtor was in serious breach of the credit agreement so that it is shown that the relationship of the creditor and debtor has broken down. This is generally where arrears are accrued and the debtor has failed to meet demands for payment. The breach to which the default refers occurred substantially in respect of unlawful charges levied by the Defendant or was the result of impercuniosities caused directly by the taking by the Defendant of penalty charges which were applied unlawfully to the account. The claimant submits that the application of unlawful charges and interest relating to such charges, to the account amounted to £1,397.86. It is thus submitted that the default marker is an inaccurate reflection of the relationship between the creditor and debtor and does not represent a serious breach of the contract. The Defendant has thus disclosed this inaccurate information , contrary to Schedule 1, Part 1,

 

 

And the Claimant claims

 

(1) A declaration that the sums totaling £[ xxxx.xx] have wrongly been applied to the Account

 

 

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

 

19 (3) claiming repayment of charges older than the normal 6 years by virtue of s32 (1)c Limitation Act 1980 as per the case of Kleinwort Benson v Lincoln City Council.

19 (4) 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 £1.14] until judgment or sooner payment.

 

19 (5) An order under s.14 to rectify incorrect data

 

 

(4) Court costs of [ xxxx].

 

 

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

 

Dated

 

 

 

Signed

 

 

 

 

 

 

Schedule 1

 

 

 

 

From the Terms and conditions currently enforce (as of Sept 2007).

 

2.5 You must keep within your credit limit. When working out whether you have gone over your credit limit, we can include the amount of any authorised transaction not yet put on the account.

 

3.1 You must make all payments by the payment due date. To help you to do this, your monthly statement will tell you how to make payments to reach us on time. Where we become aware that your monthly payment was received before the payment due date but credited to your account after this date because of an error by us we will either refund or not charge a late payment fee.

 

 

From Key Financial Information (Sept 2007)

 

Amount of credit

 

We will tell you your credit limit when you first receive your Barclaycard. We may

change your credit limit depending on our assessment of your account and will tell you

about these changes by writing to you.

 

Monthly Payments

You must make the minimum payment every month of 2.25% of the amount you owe

us on your monthly statement or £5, whichever is more or the entire amount if less

than £5. You must pay the minimum payment by the due date shown on your

statement. This will normally be 25 days after your statement date.

 

Default Charges

 

We will charge you for any reasonable costs or losses we incur if you break this

agreement, including the following charges:

£12 if you do not make at least your minimum payment by the payment due date;

£12 if you exceed your credit limit at any time;

£12 if a direct debit

, cheque or other item is not paid when first presented.

 

Schedule 2

 

(charges, date, type of charge...)

 

[Bazooka Boo]

Hello HO, I'm not sure of any others more knowledgeable advice on this matter, but I have never been one to use 'without prejudice' in my correspondence.

 

IMO this is something they like to use in order to give it an air of legal officialdom,

personally I would want the judge to have sight of all documents relating to my claim.

 

But see what others say... well done

[citizenB]

I think in this instance WoP is being used in a different context isnt it ?

 

I will ask andyorch or steampowered to pop in

[Bazooka Boo]

Yes sorry to confuse the issue CB, I just read it and because it's a phrase I don't use, thought it best to erase it?

 

However.......Boo is meddling with things he knows nothing about AGAIN!!!

[Hacked_Off]

I did the free trial thing on equifax, this supposed debt is actually showing twice once for Barclaycard once for Lowell. I wrote to Barclays a good while ago telling them to remove the double mark. Unsurprisingly I was ignored. They are obviously to arrogant and seem to think they are above the law. Well we shall see...

[Hacked_Off]

Hello HO, I'm not sure of any others more knowledgeable advice on this matter, but I have never been one to use 'without prejudice' in my correspondence.

 

IMO this is something they like to use in order to give it an air of legal officialdom,

personally I would want the judge to have sight of all documents relating to my claim.

 

But see what others say... well done

 

I see what you mean, I might remove that to save any confusion

[citizenB]

" without prejudice to the burden of proof."..don't make sense?

 

Simply state " The Claimant will contend.....I could understand it if it was defence ...protecting ones admission but he is the claimant? why protect a contention?

 

 

 

 

Yes sorry to confuse the issue CB, I just read it and because it's a phrase I don't use, thought it best to erase it?

 

However.......Boo is meddling with things he knows nothing about AGAIN!!!

 

andyorch agrees with Boo.. and suggests an alternative

[BRIGADIER2JCS]

Never use it causes too many problems.

[slick132]

The use of Without prejudice at item 14. above is fine. It is not used in the context of a Without Prejudice letter in that specific way.

 

I suggest an amendment :-

 

19 (3) claiming repayment of charges older than ..........

 

Change to

 

19(3) Repayment of any charges older than .........

 

[Hacked_Off]

Should I be putting something in the particulars about the default being lodged two years after receiving a default notice?

 

And the "probably non compliant" stuff from the ico, or is that merely evidential?

[slick132]

No, I would not go into any detail about either topic for now.

 

This is your PoC that you're submitting so it should refer to the basics of your claim.

 

The finer detail will be included in your court bundle (the evidence to support your claim) that'll you'll File and Serve later in the proceedings.

 

[Tammie]

Any updates on your case hacked_off?

[Hacked_Off]

Any updates on your case hacked_off?

 

Sorry for the late reply. No updates as yet, this has been shelved for a while until my exams are over and I have 5 glorious months off. I'm sure Barclaycard can fill the void of no university!

[Hacked_Off]

Settled my ppi clan with barclaysharks in 3

2012 though a claims company (i know I know). The payout was £85. However, it's dawned on me that this may be incorrect. The card dates back to 2005 was sold on in 2010. The ppi was approx £6 per month. I have no recollection of interest being added. The claims company just accepted any offer and did not look into it. What do we think?

[citizenB]

http://www.consumeractiongroup.co.uk/forum/content.php?1052-British-Banks-still-ripping-off-their-customers-over-PPI-reclaims.

 

Did you read the link above ?

 

If you were paying approximately £6.00 per month for 5 years, then that would have been around £360.00 in premiums.

[BankFodder]

Well get the rest and do it yourself. Keep the lot

[Hacked_Off]

I thinking might be right actually(a rarity for Barclays I'm sure). Paid for two and a bit years £2 per month (amount varies) totals £52 and odds.

[slick132]

Hi HO,

 

Did you get a full break down of the amount that was accepted at the time of settlement.