Barclaycard reclaiming penalties and Compound Int't WON (probably)

**slick132** · November 28, 2015

Hi Mum,

You did the LBA quite recently so I suggest you crack on with the Claim regardless of the fact that you're not Filing 14 days after the LBA.

If you have another that you need help with, pop a link to it here and we can take a look.

:-)

HP Mum · December 16, 2015

Thanks for that info

I am starting to work on the Barc POC now. Things keep distracting me !! :-(

I'm having results with hsbc card claim :-) They have made a first offer!!

But with regards to Creation - they have ignored every recorded delivery letter since the summer and instead continue defaults and threatening letters.

If anyone has history of a successful claim against Creation it would be great to have some feedback - I'm working on the POC now and the link is here:

http://www.consumeractiongroup.co.uk/forum/showthread.php?448762-HP-Mum-v-Creation-(Store-Card)-reclaim-late-fees-HELP/page2

Thanks

**slick132** · December 16, 2015

Hi Mum,

Keep the POC small enough to fit in the MCOL box. You can expand on the detail later in the process.

I've commented on the Creation Finance thread too.

:-)

HP Mum · December 18, 2015

Thanks :-)

Been trying to do 2 POCs at the same time! finally getting there. Have a ready spreadsheet & draft poc.

I think I will print the N1 and post somewhere rather than separating the Form from the POC. Can someone advise the correct address to send the N1??

Also - I had really forgotten how long ago and young I was when I set this barc card up. They sent a page with my address on which refers to school student days address and an attached sheet alleging to be the t&cs at the time... I have no records going back before so far; all statements thrown out. But my claim now is only for the last decade. I hope my lack of account opening details wont be an issue ???

Here is the draft POC:

me (Claimant)

-vs-

Barclays Bank, trading as Barclaycard (Defendant)

PARTICULARS OF CLAIM

1. The Claimant (me) entered into an agreement (“The Agreement”) with the Defendant (Barclays Bank t/a Barclaycard) on or around 19xx whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account number x ("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 1).

6. The default charges were applied in accordance with the standard terms of The Agreement:

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 prescribed 1.75% per month on the balance outstanding as the minimum payment of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

**** help here please with correct t&c terms to use

(d) 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 default Charge amounts were: £x between xx 20xx & xx 20xx; £x between xx 20xx & xx 20xx

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 prejudiceto 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 rely 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 £xx between xx and xx. Particulars appear in Schedule 1 attached.

17. On xx/2015 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 £x have wrongly been applied to the Account. Some of these charges are older than the normal 6 yearsbut are claimed by virtue of s32 (1)© Limitations Act 1980 as per Kleinwort Benson -v- Lincoln City Council.

(2) Payment of the said sum of £x and interest of in restitution of £x (£x total to date) 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 8% per annum on the amount claimed - daily rate of £x until judgment or sooner payment.

** 0.00022 applied x total to get daily rate **

(4) Court costs of £x.00

(5) Removal of all adverse credit data for the account, as the remaining account balance is made up of wholly or significantly of unlawful penalty charges and associated interest.

*** please advise on wording here as there is apx £5k balance now, so if barc refund anything there will still be a balance of say £2k+ not made up of charges **

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

Dated: today !!

Signed. xx

Schedule of Charges Claim will be attached as Sch. 1.

**slick132** · December 18, 2015

Hi Mum,

Re 18(5), how long has the a/c been continuously in arrears.

Any balance remaining will not include penalties and should remain showing on your CRA UNLESS the reporting should have stopped because you have been in arrears for more than 6 years.

:-)

HP Mum · December 18, 2015

Hi

I am not in arrears. I am paying monthly. Little bit more than the minimum at the moment until I can try and clear the lot.

The issue is there is a notice on each statement I get which says my account is suspended due to the state of my "other account". I think that they have attached the "egg account" that they bought off "egg" - which I have always disputed and they have never been able to claim on.

egg is not showing on my CRA. Says satisfied on the CRA

No debt registered on CRA with Barclaycard.

So if Barc ends up refunding charges and the CI then I will have a balance of circa 2k.

I would like to clear this when I have the funds.

But I don't want any adverse CRA - so should I slightly alter this clause?

To just say "Removal of all adverse credit data specific for the account where the balance is made up significantly of unlawful penalty charges and associated interest."

Would something like that do instead?

Can I alter 8 © ?? to say something like "The Claimant was to pay the prescribed minimum % payment of the amount by the due date as notified in the monthly statements"

Do I have to attach a Schedule 2 including Barc t&cs at set up and current?

Or can I leave that to if/when it goes to court?

I saw this on another thread as a possible alteration to 18 (5)

"A declaration that adverse data reported about the account by Credit Reference Agencies be removed as the amounts so reported are inaccurate due to the inclusion of unlawful penalty charges.

Any thoughts?

Is the correct address for the Defendant:

Barclays Bank PLC

1 Churchill Place London

E14 5HP

Evening - again

The N1 & my spreadsheet is printed x3.

I would just like someone to have a look through my final POC please - before I send it off.

PARTICULARS OF CLAIM

1. The Claimant (xx) entered into an agreement (“The Agreement”) with the Defendant (xx) on or around 19xx whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account number ("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 set out in schedule 1).

6. The default charges were applied in accordance with the standard terms of The Agreement:

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.

(d) 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 default Charge amounts were: £x between x & x; £x between x & x