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Barclaycard penalty charges - (probably) **WON** with restitutionary interest


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OK long story simplfied.

 

--------------------DCA---------------------------

 

Barclaycard taken out many years ago.

Credit card charges account for £900 of the balance.

They then SOLD the debt of £3300 to Link.

They have provided me with deeds of assignment to prove it.

 

On 25/03/14 I requested the CCA from Link.

 

On 31st March they replied stating that they did not have it and were requesting it from Barclaycard and would take 30 days to get this.

Even by their time scale this expired 3 days ago. So I shall be sending the unenforceable letter and removal of default on Tuesday.

 

-----------------Credit Card Charges Reclaim------------------

 

I did a limited SAR on Barclaycard them asking for transaction lists.

They were kind enough to send me statements going all the way back to 2003.

 

As a result on 15/4/14 I compiled a list of charges and lodged a complaint requesting the full charges and 8% interest back.

 

Despite Selling the debt on to Link and contacting me at this address and sending me all the statements

they claimed I was not who I said I was and closed my complaint and told me to go to the FOS.

They did not even go through the process of trying to establish my identity.

As a result I have submitted a complaint with the FOS on 29/4/14

 

Now here is my question.

I know I am not obliged to accept the FOS decision.

 

Can I now alter my claim and add restitution on top of my claim already if I take it to court?

 

I was unaware of restitution when I submitted the claim.

If I apply it it comes out more than the debt is worth.

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yes.

 

but be aware BC might well buy the debt back and off set anything you get either way

 

dx

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Thanks dx100uk.

 

Having studied what other people have gone through I think I should be able to argue that any settlement agreed upon needs to come to me to be able to distribute amongst my creditors on a pro rata basis. Just means a whole lot more wrangling.

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Hi SabreSheep and welcome to CAG.

 

I suggest you enter all penalty charges on a compound interest Site Spreadsheet using a nominal 24.9% rate.

 

Let us know how the charges plus compound int't compares with the a/c balance.

 

This will help you decide if you should pursue a claim for the refund of chgs plus compound int't, which will have to be done through the court process.

 

Be aware that BC or Barclays Litigation (who you'll deal with if you litigate) will probably buy the a/c back from Link and Set Off any refund against the a/c balance. This is their prerogative and you cannot argue against such action.

 

:-)

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Thank you both for your welcomes :)

 

 

Total Charges = £948.00

 

Total Compound Interest @ 24.90% = £2,875.38

 

 

Total Claim = £3823.38

 

Outstanding Balance £2666.43

 

To be honest I would not necessarily object to them setting off the £2666.43 and refunding the rest.

 

I'm having fun with HSBC and Natwest as well but Ill use different threads for those later on. Seems like Moorcroft is a repeat offender :p

Edited by SabreSheep

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The SabreSheep, All information is offered on good faith and based on mine and others experiences. I am not a qualified legal professional and you should always seek legal advice if you are unsure of your position.

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Hi Sabre,

 

From what you say above I think there are 2 logical choices :-

 

1. As this is BC, you are likely to succeed in getting a full refund of the charges and restitutionary compound int't. You'll have to take court action and proceed as far as necessary before Barclays Litigation agree to refund. There's no guarantee when they'll agree - it could be when you have a court date at your local court or you may have to produce your evidence (court bundle) by the deadline for it.

 

In this case, you should get the a/c balance wiped, any CRA adverse data markers including DN removed and a refund of the balance of approx £1150.

 

2. Write to BC saying you have prepared and enclose your spready showing chgs and restitutionary int't of £3823. To avoid the costs and time involved in litigation, you suggest BC accept that the penalty charges and int't more than cover the balance on the a/c. Accordingly, if they reduce the balance to NIL and remove all CRA data for the a/c, you will forego the balance repayable to you of £1150.

 

If they fail to agree to do this, you will take court action to recover the full amount.

 

With either course of action, you tell Link to hold all collection activity. In addition to them producing nothing close to an enforceable credit agreement, there is a clear dispute with BC which should result in the a/c balance being reduced to NIL. You need not give Link any further info about this.

 

:-)

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Hi Slick, Thanks for your comments.

 

Im thinking that I might Aim for 1) and use 2) as maybe a fallback position.

 

Even though I recently lodged a complaint with the FOS/FCA do I wait for them to start their investigation or just do the Letter Before Action?

 

Also If you fancy a challenge I have a thread up on Natwest. Its a bit more intense than this one.

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Hi Sabresheep,

 

If you go for option 1 and take court action, option 2 (where you forego the balance left owing to you) should be irrelevant.

 

A complaint to the FOS will probably result in them deciding that the charges are fair. They do tend to side with the banks, who incidentally are their paymasters !

 

I'll take a look on the other thread when I have a mo.

 

:-)

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Dear Sirs

RE:Card/Account Number : XXXX XXXX XXXX XXXX

 

I now understand that the regime of fees which you have been applying to my account in relation to late fees

and over limit charges are unlawful at Common Law, Statute and recent Consumer regulations.

 

I would draw your attention the implied term of the contract that you would conduct yourselves lawfully and in a manner which complies with UK law.

 

I calculate that you have taken £XXX in charges and I also claim £XXXX.XX in interest of restitution, making a total of XXXX.XX

 

I enclose a Schedule of Charges listing the amounts that I require to be repaid.

 

In addition to full payment of the sum mentioned above, I require that you remove the default entry from the register.

Please note that mere correction or amendment to the entry will not be acceptable.

 

In recent years Courts have been happy to accept claims for bank charges that exceed 6 years, whilst having regards

to the precedent set between KLEINWORT BENSON -v- LINCOLN CITY COUNCIL under section 32 © of the Limitations act 1980.

Should County Court action be needed I will be seeking to rely on this.

 

Therefore this letter requests a refund of all charges indicated including interest in restitution from the date of this letter.

I request that payment is made directly to me by cheque and that any refund in whole or part should not be allocated to any set off or third parties.

 

Should the latter occur my claim will be deemed as unsettled and I will proceed to the Courts for recovery.

 

You now have 14 days to respond positively. I trust this clarifies my position.

I also draw your attention to the enclosed proof of ID and complaint regarding a breach in the Data Protection act.

I strongly recommend you read the contents of that letter before reading this one.

 

Yours faithfully,

 

-----------------------------------------------

 

OK sending this tomorrow. About 2pm. Last minute additions welcome :)

 

Notes

 

1) BC closed my original complaint where i only asked for 8%. I sent that to the bog standard PO box address. This one is going to their Churchill Place address.

 

2) I raised the interest in restitution to 29.99% (Be aware that the interest rate in the agreement reached 2.o8% per month equivalent to 28.02%)

 

3) I know Im going to have a fight on my hands. (I am have already begun preparing the source bundle) I fully expect to get a sod off letter.

 

4) In case your wondering, as they closed my original complaint on the basis their records didnt match, the complaint is a DPA

one as the same office has sent SAR response to current address,

THEN their complaints dept rejected my complaint without asking for proof of ID THEN sent the department that handled

my CCA response to my OLD address.

 

As i was concerned that they would ignore or dismiss this new complaint and/or send correspondence to my OLD address

I made sure they could be of no doubt of my ID and also instructed them under DPA to update their records.

 

Then to save postage put that complaint with all the ID and copies of the previous letters etc in the same pack.

After all, Im not a bank made of money. They seem to be though :)

Edited by SabreSheep
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The SabreSheep, All information is offered on good faith and based on mine and others experiences. I am not a qualified legal professional and you should always seek legal advice if you are unsure of your position.

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Thanks Slick for the impending links :)

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Hi Sabre,

 

Your comments on Shelley's thread prompted me to give you these links to TrancyB's case :-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?368541-trancyb-vs-Barclaycard - main thread

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?394233-Does-anyone-have-the-relevant-parts-of-kleinwort-and-or-sempra-for-CC-claim - secondary thread about the Sempra Metals and the Kleinwort Benson cases

 

:-)

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Hi Sabre,

 

If your letter above is starting your reclaim fresh and claiming restitutionary int't that you've not claimed before, it is your Preliminary Letter, not the LBA. Accordingly, it should not read LBA - that will go on your next letter in 14 days time.

 

:-)

Edited by slick132
typo

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Thanks again.

 

Have edited letter slightly to include mention "...restitution as per the case of Sempra Metals v Inland Revenue Commissioners...."

 

Time to go post this.

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Just seen your comment about LBA.

Just in time. Editing. Means I have to reprint it again haha. Already on v5. Better to get it right. Means I also have to reprint my DPA complaint thats in the same envelope as it makes reference to the Letter Before Action being enclosed.

 

Thank you again :)

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Just an interesting thought. Restitution relies on the fact you are claiming the ill gotten gains they have made with money unlawfully deprived off you. I have the 29.99% as a nominal rate for this.

 

If they ever dared to query it, could you point out to them the products they offer where they lend money (Potentially from ill gotten gains) at 29.99%APR or MORE such as this handy product from Barclay card.

 

I bring you 34.9% APR courtesy of Barclaycard Initial :)http://www.barclaycard.co.uk/personal/credit-cards/initial#tabbox0

 

To counter this point would require a complete forensic analysis of the entire finances of Barclaycard and subsidiary where money is transferred and complete money tracing of where monies paid to my card account went.

 

Just food for thought

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My preference for 24.9% compound is simply that :-

 

1. It is easier to justify if judge or bank suggest you are seeking unjust enrichment.

 

2. We have seen BC refund fully at this rate over a number of years.

 

3. Due to the effect of compound int't on claims going back a few years, the amount claimed rises considerably if claiming 29.9% instead of 24.9%. This would perhaps make the bank consider defending more robustly and possibly taking the claim into court. However, experience has shown Barclays Litigation generally prefer to settle, even at 29.9%, rather than have a hearing.

 

Stick with 29.9% for now. You can always compromise if the settlement negotiations feel too scary although that is really the time to show confidence in your dealings with B's Lit'n.

 

:-)

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Hi Slick

My last point was more a thought experiment. You are right though, it does open up wriggle room for negotiation. :)

 

Just drafing my Natwest Prelim now. Circumstances are changing, I *may* get a start date for a job in 5-6 weeks time. Medical on Wednesday. This means I need to get this moving faster than planned. Was going to be one at a time but what do they say, in for a penny in for a pound :o/ With Natwest may use the 24.9% figure.

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12/05/14 - Letter recieved dated 09/05/14 from Link. - Complaint Acknowledgement Letter - From Liz Bather

 

"Thank you for recent complaint.

 

At this time we are unable to resolve your complaint but acknowledge receipt of it. Your complaint has been assigned to the Complaints Manager. Please find enclosed a copy of a summary of our Complaints Procedure. We will contact you within the next 4 weeks."

 

--------------------------------------------

 

Thought I asked for their full procedure not just a summary

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Hi SS,

 

Regardless of this, stick to your timescale and send the LBA off 14 days after the Prelim.

 

:-)

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Thanks Slick.

The next communication they get off me if they come back will be notice that the debt is in dispute that could result with balance being reduced to nil.

 

In meantime as u say the clock is ticking till i send lba.

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  • 3 weeks later...

Ok

 

Well no respoce from BC after my new prelim

 

Time was up a few days ago. (Gave them a few extra to account for Bank holiday, am I kind or what.)

 

Following LBA issued today.

 

Annoyingly Royal Mail messed up my signed for 1st and it still shows in processing on the tracker with no updates since I posted it on the 9th. Email sent to Royal Mail :o/

 

I Visited Court yest to pick up some N1's and Ex160a's

 

Next week I need to formalise my POC i guess.

 

On a side note, the FOS have come back to me and have formally requested information from Barclays. I guess I should expect a letter form the FOS stating that as I am intending to start legal action that they will no longer be able to investigate. If this happens can I ask them to investigate unfair treatment of how my orginal complaint was handled (and thus not the charges themselves?)

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  • 2 weeks later...

Ok, FOS has reported back.

 

handy as the LBA is due to expire soon

 

I notice the FOS do not recognize the right to claim back after 6 years.

Apparently Barclaycard also gave them information regarding the costs of going over limit or missing the payment. Really?

This could of been written by Barclaycard themselves.

 

Does this complicate the court claim in any way?

 

Should I waste my time and appeal this?

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Hi SS,

 

This should not affect any litigation.

 

No point in appealing the FOS decision. The FOS Adjudicators often find in the bank's favour and an appeal may get a different result from an Ombudsman. However, you have no need to waste time doing this when you can proceed with litigation.

 

:-)

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*Whistles in the wind*

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The SabreSheep, All information is offered on good faith and based on mine and others experiences. I am not a qualified legal professional and you should always seek legal advice if you are unsure of your position.

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ok their time has run out on LBA

 

I cannot yet go to the next level untill CCMCC return my documents I submitted for fee remission last week for my NW claim.

 

Im guessing I probably want to handle one at a time

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The SabreSheep, All information is offered on good faith and based on mine and others experiences. I am not a qualified legal professional and you should always seek legal advice if you are unsure of your position.

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