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tnook

Claiming old charges with contractual interest

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Thanks Tnook,

 

Bear with us while we discuss this behind the scenes - we want you to win just as much as you do but we want to find the right balance between maximising your claim without risking too much in court fees, and in possible court costs awarded to the defendant bank.


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37 minutes ago, slick132 said:

Thanks Tnook,

 

Bear with us while we discuss this behind the scenes - we want you to win just as much as you do but we want to find the right balance between maximising your claim without risking too much in court fees, and in possible court costs awarded to the defendant bank.


i understand. Just be aware I am

prepared to take some risks 😉

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Hi all,

 

Hope everyone survived Christmas and the New Year. I've been digging around the site and found this for a POC. Just investigating the POC at this stage. Are they still good to be used or has anything changed since they were last used?

 

I haven't kicked off the process of sending request letters yet. I am to break up the claims into smaller 'small claims track' chunks. Is there a way of avoiding them saying "full and final settlement of ALL charges" and get them to just be a "full and final settlement of the LISTED charges?

 

Thanks for all your help.

 

Here is the POC I found:

 

New POC Barclays (N1)

Claim No [ ]

 

IN THE [xxxxxcounty court

  

 BETWEEN

 

 [Mr xxxx xxxx]

 Claimant

 

 and

 

 

 -Barclays

  

 Defendant

 

 

 PARTICULARS OF CLAIM

 

 

 1. The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around xx/xx/xxxx, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no xxxx xxxx xxxx xxxx ("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) The default charges Apr xxxx – Jun xxxx were £xx.xx, Aug xxxx – Nov xxxx was £xx.xx & Jun xxxx was £xx.xx.

 

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.

 

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 £xxx.xx between xx/xx/xxxx and xx/xx/xxxx. Particulars appear from Schedule 2.

 

18. On xx/xx/xxxx the Claimant demanded repayment of the sums wrongly applied.

 

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

 

And the Claimant claims; 

 

(1) 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 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 £x.xx) until judgment or sooner payment.

 

(4) Court costs of [ xxxx].

 

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

 

Dated

  

Signed

 

 

 

 

Schedule 1

 

From Cahoot Conditions in force (as of Dec xxxx).

 

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

 

 

 

Attach your schedule of charges and head it schedule 2 be sure to include the date that charge was applied to the account, the date you paid the charge, the type of charge eg over limit, late payment etc

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Hi TN,

 

It gets quiet over the w/end but I hope Site Team @Andyorch  will drop by soon to look over the POC. I suspect he may advise some changes to  update  the document.


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Please give something if you can. We all give our time free of charge but the site has bills to pay.

 

Thanks !:-)

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Quote

Is there a way of avoiding them saying " full and final settlement of ALL charges" and get them to just be a " full and final settlement of the LISTED charges?

 

 

I think I understand why you are asking this......and the possible defence you may encounter.

Given that you intend to issue separate claims against the same agreement...they may argue that you are litigating more than once on the same issue.

 

 

A defendant to a claim may use res judicata as defense subject to how the particulars are worded. The general rule is that a claimant who instigates an action against a defendant and obtained a valid final judgment is not able to initiate another action versus the same defendant where:

  • the claim is based on the same transaction that was at issue in the first action;
  • the claimant seeks a different remedy, or further remedy, than was obtained in the first action;
  • the claim is of such nature as could have been joined in the first action

 

So you may hit a stalemate in getting round " All " and " Listed "...but of course you dont have to accept in full and final...unless its drafted as this claim only.

 

Andy


We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 Have we helped you ...?         Please Donate button to the Consumer Action Group The National Consumer Service

 

If you want advice on your thread please PM me a link to your thread

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