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b8byd v Barclaycard **WON**


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Hi all

 

I'm at the stage where I can now start another new claim, this time against Barclaycard.

 

Its a bit daunting as i've not yet had to go to court (one of my LTSB ones is at that stage, but I can't afford to proceed as yet). Anyway, I may as well commence this claim - one step at a time!

 

I guess i'm quite lucky as I received all my statements very quickly, and i'm not missing any.

 

Some questions:

 

1. A couple of threads have mentioned an advanced spreadsheet - is there a template for this somewhere?

 

2. How do I work out interest they have charged me on penalties?

 

3. Can we claim back the more recent #12.00 charges, or only the #20.00 ones?

 

Thank you in advance!

b8byd :D

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I have now prepared my schedule of charges + contractual interest + interest applied by BC on the charges + contractual interest on that interest (sounds confusing, but hopefully i've got it sussed).

 

The contractual interest I am claiming is the difference between BC's interest on purchases 24.9% and interest on cash advances 27.9% = 26.4%. This means that the total amount of charges claimed is 968.00 but the total value of my claim including contractual interest is 2,059.93 as at 21/7/07 :o

 

I prepared my schedule using this template: http://spreadsheets.google.com/ccc?key=p6Z9Po15m9HbGRcTTYCQDOA courtesy of Vampiress.

 

I'm going to draft my prelim tonight and send it tomorrow.

 

Wish me luck :)

b8byd :D

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Hi guys - here is my draft prelim. If nobody has any comments beforehand, i'm going to post tomorrow lunchtime.

 

I consider that the regime of charges which you have applied to my credit card account is unlawful at common law, statute, and recent consumer regulations. I am therefore writing to request a refund in respect of said charges.

I further consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them. Your concealment of the true nature of your charges has prevented me from asserting my right until now.

I calculate that you have applied £968.00 in levies which I ask that you return to me.

I also claim interest at 26.4% which is the difference between the interest rate you have charged me on my purchases (24.9%) and the interest rate you have charged me for cash advances (27.9%). I believe I am entitled to this interest rate on the principal of mutuality and reciprocity. At today’s date, interest at 26.4% on ₤968.00 amounts to ₤644.13.

Further, I have calculated that the amount of interest you have applied to my account in respect of the unlawful charges amounts to ₤317.01. I have arrived at this figure by taking into consideration how much interest you have applied to my account on months where unlawful charges were applied, and calculating proportionately how much of that interest was in respect of said charges. Since this interest was applied to my account in respect of unlawful charges, I consider this amount to have been taken unlawfully and therefore also require this figure to be refunded to me. I also claim interest at 26.4% on the unlawful interest you have applied to my account, which amounts to ₤130.79.

Finally, I also claim ₤10.00 in respect of the fee I paid for my Subject Access Request, which would not have been necessary if you had run my account in a lawful manner.

The total amount I am claiming at today’s date is ₤2,069.93.

I attach a schedule which clearly sets out the figures I have described above.

 

I hope that you will enter into a sincere dialogue with me about this matter rather than merely responding with standard letters and leaflets. If you do not respond positively within 14 days, I will take further action in respect of my claim.

I look forward to receiving a cheque from you in the sum of ₤2,069.93.

b8byd :D

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Curious...

 

Letter dated 25 July from Barclaycard stating that they are reducing my credit limit from 2,000.00 to 1,740.00 with immediate effect and stopping me from being able to withdraw cash for a minimum of 6 months.

 

Curiouser...

 

My outstanding balance has been reduced by about 300 quid to 1,649.68 (just under the new credit limit).

 

No mention of my claim whatsoever.

 

Anyone know what they are playing at??

 

:confused:

b8byd :D

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OK I now have a letter from them which explains where the credit has come from. As a gesture of goodwill they have credited my account with 334.00 which is the difference between the charges incurred and the current 12.00 fee.

 

I am going to write and say I accept that sum as partial fulfilment of my claim but not full & final settlement - and then I guess its just a waiting game to see what happens in court with the test case??

b8byd :D

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Sent rejection letter.... the one which says I accept their partial settlement offer on the clear understanding that I will pursue them for recovery of the remainder of my claim. If they do not accept my terms, they are authorised to remove the sum they have credited to my account.

 

Will prepare an LBA tomorrow ready to go on Monday.

b8byd :D

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Do these few paras in my LBA sound okay?

 

"[bla bla - repeated what I am claiming and why]

 

The total value of my claim at today's date is £2,084.80. I attach a schedule which clearly sets out the figures I have described above.

 

I note that on 24 July 2007 you credited my account with £344.00 with the description 'late charges refund'. As you know, I have authorised you to remove this sum from my account if you do not accept the terms of my acceptance of this amount, as outlined in my letter dated 31 July 2007. Whilst the 'late charges refund' remains in my account, the value of my claim is reduced by £334. Therefore, at today's date, the value of my claim taking into account the 'late charges refund' is £1,750.80.

 

[14 days etc etc]"

b8byd :D

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hi, im in same boat as you. i added all my charges up from my b/card statements and requested £535. had not recieved reply but out of curiosity i looked on my online account and found they had refunded to my card £192. at the side it said refund for late payment charges. they still owe me the other £343. i want the rest.

should i ask for intrest on top now being as they have not given me full refund and tryin to fob me of with a less amount? and do you now what letter i have to use to say thanks for partial payment but still want rest. i have got own thread but no ones replied. thanks

 

(sorry for jumping your thread by the way.)

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No worries! I'll try to help.... but hopefully somebody else will come along soon and help you out a bit more!

 

They will probably write soon and say that they are prepared to pay you X amount (this will be the amount already paid in your account). If it was me, I would write back and say that I do not accept this offer, and therefore authorise them to remove this sum from the account. Then in that letter, state that I am also claiming interest. Enclose a schedule setting out all the charges and the interest (there are some template schedules in the templates section for this).

 

This will, in effect, still be the 'preliminary' stage of the claim since you are now claiming something different.

 

I can't think of any potential problems with doing it this way. But to be safe, you could just reject their offer and state that you are withdrawing your claim. Then start again with a separate 'prelim' including interest.....

 

Hopefully somebody wiser will clarify and give some more certain advice!

 

Good luck

b8byd :D

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Ok, I found this on an old post courtesy of UK Aviator:

 

Claimant has account (A/C No-sort code) with Defendant from (Date a/copened) conducted on their standard terms and conditions. Claimant is claiming the return of (£0.00 = amount of charges claimed) taken by Defendant in charges over (X) years. The Defendant's charges are a disproportionate penalty and therefore unenforceable as they are contrary to common law. They are also invalid under the Unfair ContractsTerms Act 1977 s.4 and under the Unfair Terms in Consumer Contracts Regulations 1999.Para.8 and sch.2.1.e.

In the event that the charges are not a penalty they are unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15. Defendant has declined justification of charges despite repeated requests. Claimant claims interest under Sec.69 of the County Courts Act 1984 at a rate of 8% a year from (Date of 1stcharge) to (Date of filing claim) of (£0.00 =The interest in the 8% spreadsheetcalculation) and also interest at same rate up to the date of judgment or earlier payment at a daily rate of (£0.00p = Amount of charges claimed x 0.00022).Amount of charges is before the court fee and 8% if your claiming that.

b8byd :D

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This is what I used for my Capital One claim (with thanks to Redsonja). Dunno if this is any good or not:

 

1. The Claimant has a Visa Credit Card Account xxxxxxxxxxxxxxx ("the Account") with the Defendant which was opened on or around 12/12/00.

 

2. During the period in which the Account has been operating the Defendant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant. The Claimant understands that the Defendant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

 

3. A schedule of the charges applied is attached to these particulars of claim.

 

4. The Claimant contends that:

 

a) The charges debited to the Account, as outlined in the attached schedule, are punitive in nature; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or are not related to any alleged actual loss, but instead unduly enrich the Defendant which exercises the contractual term in respect of such charges with a view to profit.

 

b) The contractual provision that permits the Defendant to levy such charges is unenforceable by virtue of The Unfair Terms in Consumer Contracts Regulations (1999) paragraph 8 and schedule 2 (1) (e), The Unfair Contracts Terms Act 1977 section 4 and the Common Law.

 

c) The Claimant believes these charges to be a penalty. Penalty charges are irrecoverable at Common Law. The precedent for this was Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79, along with Murray v Leisure Play [2005] EWCA Civ 963. It was held that a contractual party can only recover damages for an actual loss or liquidated losses. It is clear that these charges do not reflect any actual and or real loss. In the event that the charges are not a penalty, they are unreasonable under The Supply of Goods and Services Act 1982 section 15.

 

5. Interest claimed

 

a) The Claimant claims compound interest on the charges to the Account at the annual rate of 21.99%. This is the rate currently applied by the Defendant to the Claimant’s use or borrowing of the Defendant’s monies, as provided for in the contract.

 

The Claimant’s case for claiming this rate is based in equity, and a legal requirement for fairness and balance.

 

The Claimant deems the Defendant’s charging regime to be unlawful, since the charges are unconscionable, remain unsubstantiated, and amount to unenforceable penalties at law. If the Defendant avers that its charges are fair, reasonable and therefore enforceable, its remedy will be to defend the claim by providing evidence of its actual losses or pre-estimate of costs in relation to the Claimant’s account breaches. Since the Defendant has been invited to do so prior to the issue of court proceedings, and has refused, and since the Claimant is aware that the Defendant has failed to defend any other similar claim, choosing to settle before the trial dates, the Claimant deems the Defendant’s charges to the Account to be indefensible, and unenforceable at law. It was clearly not in the Claimant’s contemplation when entering into the contract, that the Claimant would authorise the Defendant to apply penalty charges to the Account, or to profit in an unlawful manner from the Claimant’s account breaches.

 

 

For the contract to confer advantageous terms (i.e. entitlement to compensation) on one party (the Defendant) where there is no comparable term in favour of the other party (the Claimant) is to create an imbalance in the parties’ rights and is contrary to the requirements of Regulation 5 (1) of the Unfair Terms In Consumer Contracts Regulations 1999 (“UTCCR”).

 

Regulation 5 (1) of the UTCCR states as follows:

 

5. (1) “A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”

 

Therefore, to satisfy the requirement of fairness within the definition given by the UTCCR, the contract would have to provide a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorised withdrawals from the customer’s account by the bank (the Defendant). The interest claimed is therefore deemed to provide an equitable remedy.

 

 

b) In the alternative to 5 a) , if the court finds that the Claimant is not entitled to contractual interest, the Claimant claims interest under section 69 of the County Courts Act 1984.

 

6. Accordingly the Claimant claims:

 

a) The return of the amounts debited in respect of penalty charges in the sum of £390.00;

 

b) Court costs;

 

c) Contractual interest at a rate of 21.99% per annum, compounded daily from the date of each transaction to 10/05/07 of £787.53, as set out in the attached schedule of charges.

 

d) In the alternative to 6 c), interest under Section 69 of the County Court Act 1984 at the rate of 8% per annum from the date of each transaction to 10/05/07 of £110.35 and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of £0.09.

Statement of Truth

I believe that the facts stated in these particulars of claim are true.

"Banks are people that will lend you an umbrella when it's sunny, but demand it back the minute it starts raining"

 

Brad v Halifax

22/08/06 - Preliminary Letter sent requesting full repayment of charges

06/09/06 - LBA sent to bank

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