car2403 -v- Barclays Bank (Default removal)

[vselym]

Intend to defend in full, deja vu, didn't they say that over your charges then offer no defence ? When will a court sort these banks out ?

Best of luck

 

regards

vselym

[Paintball]

Acknowledgement of Service received - intend to Defend in full.

 

I can't wait to hear what points/arguments their Defence contains.

[car2403]

Won't have to wait long, Paintball, as they only have until 6 December to submit their Defence. I sent a request for Judgement by Default as I hadn't had AOS on Tuesday - the Court has sent it back saying the Defendant has until 06/12 to submit, or I'm "welcome to resubmit the request for Judgement by Default". Maybe Morpeth CC know something I don't? Here's hoping!

 

[car2403]

Just in case I missed anything in this claim, I'm sending this anyway;

 

1 December 2007

 

BARCLAYS BANK PLC

LITIGATION AND DISPUTES

LEVEL 29

1 CHURCHILL PLACE

LONDON

E14 5HP

 

car2403 –v– Barclays Bank PLC

Claim No: 7******, in the Morpeth and Berwick County Court

Defendant’s Reference: Not provided

 

Dear Sir/Madam,

 

 

CPR REQUEST FOR INFORMATION

 

 

I, the Claimant in the above case, acknowledge receipt of your Acknowledgement of Service.

 

Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below. The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

 

2. All records you hold on me relevant to this case, including but not limited to:

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor.

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account held with BARCLAYS BANK PLC.

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

d. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

h. A list of third party agencies to which you have disclosed my personal data and a summary of the nature of the information you have disclosed.

i. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a complete claim.

 

I must make you aware that this information has also specifically been requested from your Client under a Data Protection Act Subject Access Request under s.7 Data Protection Act 1998, dated 22 February 2007.

 

Yours sincerely,

 

The original Data Protection Act S.A.R - (Subject Access Request) was sent as part of my Charges Reclaim claim, but they didn't provide this information.

[davethorp]

Subscribing

[car2403]

Here we go - Barclays Defence!; (I know you've all been waiting to hear this one...)

 

See the post below...

 

 

They seem to have totally misunderstood my entire claim - despite it being on 13 pages, they are still accusing me of insufficient particularisation under CPR!

 

AND they've submitted an 11-page Defence to deny the claim!

 

AND they reckon I don't have a claim at all!

 

AND they say I can't claim as I still owe them money!

 

AND if I can claim, I can't anyway because they have a right to off set! (Also note how they attempt to convince the Court I should off set with the outcome of this claim - quite clearly them thinking I have a case and will probably win, IMO - but use the fact I didn't off set my charges reclaim when I won, in Court, despite their Solicitor turning up (hoping to get a stay until the OFT TC, but the Judge had none of it!) and saying "sorry Sir, (the Judge, not me!) but I have received instructions to offer no Defence to the Claim at all if you intend to hear the case today")

 

There's only one word I can reply to this with;

 

 

(Thank God for Google Images!)

[car2403]

Here's my thoughts on this;

 

IN THE MORPETH AND BERWICK COUNTY COURT

 

Claim No: 7******

 

BETWEEN

Car2403 Claimant

-and-

Barclays Bank Plc Defendant

 

DEFENCE

 

1. Save for any admissions made herein, the Claim is denied, for the reasons set out below and the Claimant is put to strict proof.

 

2. The Defendant will contend that the Claimant has failed to identify and state a cause of action, or to state all the facts necessary to ground a cause of action against the Defendant, to establish any legal liability for the sum claimed. Accordingly, the Defendant reserves the right to amend its Defence in due course following proper particularisation of the Claimant’s case. Furthermore the Defendant invites the Court to strike out the Claim pursuant to CPRr3.4 as an abuse of the Court’s process and for failure to comply with CPRr1 6.2 and 16.4.

 

3. It is denied that the Claimant is entitled to either substantial damages or an Order from the Court pursuant to section 14(1) of the Data Protection Act 1998 (“The Act”) or costs, as alleged or at all, for the reasons set out herein.

 

4. No admissions are made as regards paragraph 1 and the Defendant will contend that this is irrelevant to the Claimants Claim.

 

5. Paragraph 2 is admitted.

 

6. No admissions are made as regards paragraph 3 and the Claimant is put to strict proof.

 

7. Save that it is admitted that a request was made by the Claimant for copies of the account agreements with the Defendant and that these were supplied to the Claimant, no admissions are made as regards paragraph 4 and the Claimant is put to strict proof.

 

8. Paragraph 5 is denied and the Claimant is put to strict proof.

 

9. Save that it is admitted that the Defendant recorded a default in respect of its termination notice dated 21 March 2005, against the Claimant, no admissions are made as regards paragraph

6 and the Claimant is put to strict proof. The Defendant will contend that it was entitled to register the default following the Claimant’s breach of the terms of his current account with the Defendant numbered **** ****.

 

How can they use this in their Defence when they don’t have a signed agreement for the Personal Loan and can’t rely on s.74 CCA 1974 and the OFT Determination for the Overdraft?

 

10. No admissions are made as regards paragraph 7 and the Claimant is put to strict proof. The Defendant will contend that a copy of the loan agreement was sent to the Claimant in answer to his request.

 

11. Whilst the Defendant notes paragraph 8 of the Particulars of Claim, the Defendant will contend that the Claimant has pleaded extracts of law and that paragraph 8 is irrelevant to the Claim. Furthermore the Claimant is not entitled to plead on the basis of what he believes the Defendant’s Defence will be and the Defendant requests that paragraph 8 be struck out as an abuse of the courts process pursuant to CPRr3.4.

 

12. Paragraphs 9 & 10 are denied and the Claimant is put to strict proof. The Defendant will contend that the current account and agreed overdraft facility, does not fall within Sections 77 or 78 of the CCA, which sections only apply to running account credit agreements. In the alternative, if which is denied, Sections 77 and 78 are held to apply, the Defendant will contend that it complied with section 78(1) of the CCA and the relevant regulations being the Consumer Credit (Cancellations Notices and Copies of Documents) Regulations 1 983 (“CNC Regulations”), in particular regulations 3 & 7.

 

So, what is the overdraft classed as if it’s not “running account credit” – which it clearly is under s.10 CCA 1974?

 

How can they rely on the CCA for Default enforcement without an agreement?

 

13. Paragraph 11 is denied and the Claimant is put to strict proof. The Defendant repeats paragraphs 1-1 2 herein.

 

I’ve asked them to prove the existence of a term allowing charges to be applied?

 

14. Save that the Defendant admits that it sent to the Claimant a termination notice, dated 21st March 2005, paragraph 12 is denied and the Claimant put to strict proof.

 

They admit the termination notice was sent, but then put me to proof of it? THEY sent it to ME as part of disclosure under s.78.

 

15. Paragraphs 13 & 14 are denied and the Claimant put to strict proof. The Defendant will contend that it issued a valid termination notice against the Claimant dated 21st March 2005.

 

16.Save that it is admitted that the Defendant debited charges to the Claimant’s current account, following the Claimant’s failure to keep within

the terms of the overdraft, paragraph 15 is denied and the Claimant put to strict proof. The Defendant will contend that the overdraft facility was requested by the Claimant and granted to him, by the Bank, in the sum of

£1,000.00.

 

Are they admitting the charges are a result of breaches of contract here?

 

17. Paragraphs 16 & 1 7 are denied and the Claimant is put to strict proof. The Defendant will refer to the terms of the account as varied from time to time for their full terms and effect. It is admitted that charges for unauthorised borrowings (fees for returned cheques, paid referral fees or any other such fees), were debited to the Claimant’s account, however the Defendant puts the Claimant to strict proof of each charge and the date thereof.

 

Para 16 & 17 put THEM to proof of the contractural term to allow charges to be applied – they’ve tried to turn this around on me! Again, seem to be contending these charges are from contractual breaches and penalties? (The same goes for Para 18, 19 and 20 of their Defence)

 

18.The Defendant was entitled to charge the Claimant for unauthorised borrowing by reason of its standard terms and conditions. The Claimant accepted these when the account was opened and / or when the Claimant requested an overdraft facility from the Defendant.

 

How are they entitled, as there is no signed agreement!

 

19. The Defendant’s standard terms and conditions gave the Claimant a fair and transparent view of those terms and charges applicable for unauthorised borrowings (including where the account is overdrawn without an overdraft limit or where the Claimant exceeded his authorised overdraft limit).

 

20. If, and to the extent that the Claimant incurred charges on his account, this was caused by the Claimant having gone into overdraft without having agreed with the Defendant to increase the overdraft facility and / or the Claimant’s failure to make payments to bring the balance of the account back into credit.

 

21. It is averred that the said charges and interest were and remain lawIuI and enforceable and that the Defendant was entitled to debit the same.

 

22.Paragraph 18 is denied and the Claimant is put to strict proof. The Defendant will contend that it filed a Defence to the Claim referred to which was its Statement of Case in respect of the Claim, which Claim the Bank contested. It is admitted that the Default Judgment was awarded to the Claimant in the proceedings. Payment was made to discharge that Judgment in the sum of £940.46.

 

They turned up to Court and offered no Defence during the hearing – IMO, that means they accepted the claim in it’s entirety and can’t rely on their original Defence submission. The Judgment WASN’T in Default, it was from a full hearing where the Court decided the case in my favour!

 

23. In any event, the sum that the Defendant paid to the Claimant in relation to the proceedings referred to in Claim No. 7QZ48960 has not been used by the Claimant to reduce his outstanding balance. The termination notice there remains at the level stated by the Defendant.

 

Yes, because there is no automatic right to offset and the balance of the overdraft is unenforceable, hence the reason for this claim.

 

24. Paragraphs 1 9 & 20 are denied and the Claimant put to strict proof. The Defendant will contend that the balance stated on the termination notice was the balance of the debt owed to the Defendant on the current account following, the Claimant’s breach of the terms of the account and which sum, the Claimant has continued to refuse to pay to the extent of £1 ,237.78. This sum is still due and owing to the Defendant. The Defendant will refer later to this sum and the Defendant will plead a right of set off to the Claim of the Claimant in these proceedings.

 

Para 19 speaks for itself – the overdraft balance is made up of these unlawful charges and unlawfully applied interest on top of those charges. Para 20 accuses them of Defaulting the account unlawfully, then THEY put ME to strict proof of that – surely simply showing they had Defaulted the account lawfully would suffice?

 

25. Paragraph 21 is denied and the Claimant put to strict proof. The Defendant repeats paragraphs 1-24 herein.

 

26. No admissions are made as regards paragraph 22 and the Claimant is put to strict proof.

 

I have a copy of a letter from Barclays saying “the Bank is unable to locate a copy of the original agreement at this time” – happy to supply that as “proof”, if they really want me to!

 

27. Paragraphs 23 & 24 are denied and the Claimant put to strict proof. The Defendant will contend that the Claimant has merely asserted an allegation that the loan agreement was improperly executed but has wholly failed to particularise any details or reasons as to what he grounds his allegation on and the Defendant will contend that as such the Claimant has failed to comply with CPRr1 6.2 and 1 6.4. The Defendant invites the Court to strike out the Claimant’s Claim pursuant to CPRr3.4 as an abuse of the Court’s process and for its failure to comply with a rule of the CPR.

 

There is no document in existence they can rely on, now they want me to provide proof that the document doesn’t exist? This doesn’t make sense to me. It isn’t an allegation, as they’ve provided no agreement!

 

28. Paragraph 25 is denied and the Claimant put to strict proof. The Defendant will contend that section 1 27(3) CCA is irrelevant to the Claimant’s Claim for the reasons stated herein.

 

They are probably right, as s.127(3) requires the existence of some document – they have provided NOTHING that meets that criteria.

 

29. Paragraphs 26 to 29 inclusive are denied and the Claimant is put to strict proof. The Defendant will contend that default and termination notices issued to the Claimant in respect of the loan account, were issued validly and in accordance with the CCA which notices, the Claimant failed to comply with.

 

Perhaps, but they contain unlawful charges in the balance – and there was no “agreement” that payments would be made, so how can I be in default exactly?

 

30. Paragraph 30 is denied and the Claimant is put to strict proof. The Defendant will contend that the default and termination notices were validly issued and the loan agreement validly terminated due to the Claimant’s breach of the terms or the agreement. The Claimant is therefore not entitled to damages under the cases referred to or any other legal provision.

 

Perhaps, but they contain unlawful charges in the balance – and there was no “agreement” that payments would be made, so how can I be in default exactly?

 

31. Whilst it is admitted that the Claimant sent a request to the Defendant on 20th September 2007, under Section 10 of the Act, paragraph 31 is denied and the Claimant is put to strict proof. The Defendant will contend that under the Data Protection Act, in particular, but not limited to, Schedule 2, the Defendant is entitled to continue to process the personal data of the Claimant. Furthermore this was explained to the Claimant in a letter of 23rd October 2007 which, amongst other things, referred to the fact that the Defendant is obliged to process personal data due to its obligations under legislation being, but not limited to, the Serious Organised Crime and Police Act (2005), Money Laundering Regulations (2000), Anti-Terrorism, Crime and Security Act (2001), Proceeds of Crime Act (2002), Financial Services and Markets Act (2000), Terrorism Act (2000) and Limitation Act (1980). The Claimant is therefore not entitled to require the Defendant to stop processing his personal data and neither is the Claimant entitled to an order under Section 14(1) of the Act or any other part of the Act, as pleaded or at all.

 

How so? With no agreement, there is no consent and they can’t claim a legitimate right to process because I “owe” them money as there is no agreement to back that up!

 

32. Paragraphs 30 to 46 inclusive are denied and the Claimant is put to strict proof. The Defendant repeats paragraph 31 herein and will further contend that paragraphs 32 to 46 of the Particulars of Claim are recitations of various provisions of the Data Protection Act or statements from the Information Commissioner’s Office and have been wrongly included in the Claimant’s pleading. Furthermore, in view of the fact that the Claimant is indebted to the Defendant, such prevention of processing of the Claimant’s personal data would be impossible to comply with.

 

How am I indebted to you, as you have no agreement showing I agreed to anything at all?

 

33. Paragraphs 47 & 48 are denied and the Claimant put to strict proof. The Defendant refers to paragraphs 31 & 32 herein and will contend that the Defendant is entitled and required by law, to continue processing the personal data of the Claimant and furthermore the Claimant has failed to particularise any substantial damage or distress as alleged or at all. The Defendant repeats paragraphs 31 & 32 herein and will contend that the Claimant is not entitled to the removal of default entries in respect of his accounts. Furthermore the correct venue for an action for amendment to the Claimant’s credit, is Section 159 of the CCA and not by Declaration of the County Court.

 

How so entitled? (No agreement!) And my authority doesn’t require me to show any evidence of damage or distress – read the case! I also have evidence of trying to use s.159 to remove the Data, but the CRA’s were having none of it as Barclays insists on their processing of my data because they can!

 

34. Paragraph 49 is denied and the Defendant will contend that the Claimant is not entitled to Claim payment of the Court fee in his Particulars of Claim, having already Claimed it on the Claim Form.

 

35. Paragraph 50 is denied and the Claimant is put to strict proof. The Defendant will contend that the Claimant has wholly failed to set out any or any proper particulars, that justify damages to the value of £1 ,000.00 as alleged or at all nor particulars that would bring the Claimant within the cases referred to in his Claim. Furthermore the Defendant will contend that by virtue of section 15(2)© County Court Act (1984) any Claim for damages in defamation cannot be made in the County Court. The Defendant requests that the Claimant’s claim be struck out pursuant to CPRr3.4 as an abuse of the Court’s process.

 

I couldn’t disagree more.

 

36. Paragraph 50.2 is denied and the Claimant is put to strict proof. The Defendant will contend, for reasons set out herein, that the Claimant is not entitled to an Order from the Court under Section 14(1) of the Act or any other Act.

 

37. Paragraph 50.3 is denied and the Claimant is put to strict proof. The Defendant will contend that the Claimant is only entitled to such costs as are set out for the Small Claims Procedure in CPRr27 and that in any event the Claimant’s Claim should be struck out and costs awarded to the Defendant.

 

Set Off

 

38. Furthermore, the Defendant has a right of Set Off against the Claimant’s Claim herein that extinguishes the Claimant’s Claim. The Defendant will contend that the Claimant is indebted to it in the sum of £1,237.78 and the Defendant therefore sets off this sum and/or any other sums that may become due and owing by the Claimant, to the Defendant, in diminution and extinction of the Claim herein.

 

Statement of Truth,

Etc, etc, etc…

 

I can't wait for this to get to Court now, as the Judge will surely just laugh them out of the door.

 

So far failed to supply anything under a CPR part 18 request for documentation sent on 1st December (have recorded delivery) neither...

 

This just keeps getting better!

[sansho]

Well done car2403..

 

If I were you, I would scrutinize the non-admissions and denials stated in their defence carefully and build your ammunition to put a nice big hole in these areas. Make sure all the documentation you have and those following a SAR request are available to cross-check any reconstructed or reconstituted documents that Barclays may attempt to present as evidence later on.

 

Remember even the best bank is prepared these days to lie through its teeth in a County Court. A County Court these days are known playgrounds for kidology. Banks and their legal reps don't take District Judges seriously, as a small claim is just what the name implies.

 

If you take note, the twats that turn up as duty solicitors, many a times turn up without knowing their trousers are around their ankles, as many don't even know what type of letters or correspondences have been exchanged between the parties to the case.

 

County Courts are at the bottom of the pile in terms of judicial order, but top of the pile in terms of weaker judges. In fact some County Courts in the Country are almost getting comparable to Judge Judy's Court on telly.

 

The only forseeable gain (if you can call it that) to Barclays in defence of your claim, is to try to limit what appears to be another round of payout to you by setting-off sums relating to the current account overdraft against damages the court may consider awarding you. The issue of the loan is a lost cause if there is no agreement to tender.

 

Remember to highlight injury to credit reputation, availablity and/or loss (if applicable) following the defaults issued, be averse with your ammo. Remember you still have to be tactical in the presentation of your facts at trial, as the onus would be on you moreso than on the bank to prove the points. Judges are not always helpful especially when your the one forcing the issue.

 

If I were you, i won't bother waiting on your CPR part 18 response, your claim will fall within the small claims track and besides you are the one forcing the issue. Evidence both parties seek to rely on will bring out any hidden gremlins, especially if the defence is to have any bite.

 

My 2 cents only... Comments above are that of my own, the aim is to have you better prepare yourself for the road ahead.

[car2403]

Oh, this is only just the start for me, sansho. I'll have this in shreds at the end, but I really don't think it is worth spending too long on - just have to wait out for the trial hearing to come around, in the meantime the Default remains...

 

I just don't understand the bits where I've said they are at fault and I've put them to strict proof, but then the Defence just seems to say I'm wrong and THEY put me to strict proof! At one point, they've even asked ME to prove the content of a letter that THEY sent to ME! Ridiculous to say the least...

 

Thanks for your comments anyway - I was always planning on small claims track from the start. The CPR request was just to really P the Judge off when I finally get there!

 

Tallyhoo...

 

[noimagination]

2. The Claimant held a Current Account and overdraft with the Defendant since 1996, numbered XXXXXXXX with a sorting code of XXXXXX, and a Personal Loan Account with the Defendant since 2000, numbered XXXXXXXX with a sorting code of XXXXXX.

 

3. Both these agreements are regulated debtor-creditor agreements under the Consumer Credit Act 1974.

 

Are you 100% sure that your current Acc and overdreft are covered by the Credit Counsumer act?

 

I have been trying to get a "definitive" answer to this question as my bank are unsure, would you believe! it was exsplained to me by TS that:

 

Running-account credit is a facility under a personal credit agreement.

 

As current accounts are not "Personal credit agreements" overdrafts are not covered by the cca as running acc credit?

[car2403]

Are you 100% sure that your current Acc and overdreft are covered by the Credit Counsumer act?

 

I have been trying to get a "definitive" answer to this question as my bank are unsure, would you believe! it was exsplained to me by TS that:

 

Running-account credit is a facility under a personal credit agreement.

 

As current accounts are not "Personal credit agreements" overdrafts are not covered by the cca as running acc credit?

 

Current Account - not regulated by CCA, but the FSA instead.

 

Overdraft - running account credit under s.10 so is regulated by CCA. They are exempt from Part V (s.60/s.61) Form/Content requirements IF they can show they complied with the OFT Determination under s.74;

 

http://www.consumeractiongroup.co.uk/forum/general/120977-overdrafts-sec-77-79-a.html

 

http://www.consumeractiongroup.co.uk/forum/general-debt/87855-overdraft-cca.html

[car2403]

I've just checked the balance of the personal loan account, as I still have my online banking logins and found this;

 

11/12/2007

Credit £1,770.98

TFR TO RECOVERIES C F (P)

 

This has brought the balance of the account to zero. Good news, perhaps?

 

I've also had a letter from the Litigation team, just a cover with an attachment called "Customer Agreement" - this is the agreement for the account, but it's only terms and conditions. There is no signature from me, or them to say when/how it was agreed to. This bears no relation to the overdraft and doesn't have any terms relating to overdraft. I'll scan/OCR it in when I get time, but this is just the agreement for the ACCOUNT, not the OVERDRAFT - which is what I'm querying?

[pfchute]

subscribing

[car2403]

Just received Court Service of the Defence - I have until 28/12 to submit the AQ. Should be simple, as I've just done the same with my HFC Claim, here;

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default-7.html#post1274737 (read from post #127 for the AQ info if this direct link doesn't work)

 

I'll review this over the weekend to make sure it's relevant, (might include something extra about the failure to conform to the OFT Determination along the way, just to put the boot in!) but I'll upload what I send in for you to see anyway.

[car2403]

Just in case I missed anything in this claim, I'm sending this anyway;

 

 

 

The original Data Protection Act S.A.R - (Subject Access Request) was sent as part of my Charges Reclaim claim, but they didn't provide this information.

 

No reply to my CPR Part 18 request for more information, so this is going to Barclays today;

 

 

REQUEST FOR INFORMATION – FAILURE TO COMPLY

 

I, the Claimant in the case above, refer to a letter I sent to you dated 1 December 2007, a copy of which is enclosed, along with confirmation of delivery of the same to you dated 4 December 2007.

To date, you have failed to provide the information requested, therefore please take this as notice that I intend to report to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a sufficiently particularised and complete claim, as outlined in my letter dated 1 December 2007.

 

Yours sincerely,

 

I won't get a reply, but I'll write to the Court at the end of next week to let them in on whats happening anyway.

[car2403]

I've just checked the balance of the personal loan account, as I still have my online banking logins and found this;

 

 

 

This has brought the balance of the account to zero. Good news, perhaps?

 

I've also had a letter from the Litigation team, just a cover with an attachment called "Customer Agreement" - this is the agreement for the account, but it's only terms and conditions. There is no signature from me, or them to say when/how it was agreed to. This bears no relation to the overdraft and doesn't have any terms relating to overdraft. I'll scan/OCR it in when I get time, but this is just the agreement for the ACCOUNT, not the OVERDRAFT - which is what I'm querying?

 

This document is too big to scan in, (or, rather, I can't be bothered as it provides little value to the claim or defence, IMO!) but I've found the International Barclays Customer Agreement which is very similar here;

 

http://www.barclays.com/internationalpersonal/docs/pp046_270706.pdf

 

Still can't see anything in that there relates to overdrafts, which is what I'm assuming they are relying on this for?

[car2403]

Just received Court Service of the Defence - I have until 28/12 to submit the AQ. Should be simple, as I've just done the same with my HFC Claim, here;

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default-7.html#post1274737 (read from post #127 for the AQ info if this direct link doesn't work)

 

I'll review this over the weekend to make sure it's relevant, (might include something extra about the failure to conform to the OFT Determination along the way, just to put the boot in!) but I'll upload what I send in for you to see anyway.

 

AQ going off today as I won't have access to a printer over the next few weeks and I don't particularly want this deadline looming over me over Christmas. I've used exactly the Draft Directions linked above, as it covers the Wilson case nicely and what the limits on the Courts powers are under s.127(1) and s.127(3) - I don't think I'll get the Directions, as its more or less already allocated to the Small Claims Track, but its worth a try ain't it?

[car2403]

Just in case I missed anything in this claim, I'm sending this anyway;

 

 

 

The original Data Protection Act S.A.R - (Subject Access Request) was sent as part of my Charges Reclaim claim, but they didn't provide this information.

 

I've had an interesting reply from Barclays on this... I can't go in to detail too much on open forum, as they are clearly accessing this thread (hello, Adrian, by the way! Hope you're well!) but basically they have refused to comply with the CPR request - or, rather, won't comply until disclosure is ordered by the Court. The letter says "we believe your claim is an abuse of the Court's process", but then goes on to say "we believe the claim will be allocated to the small claims track and we won't comply with disclosure until ordered by the Court" - surely that's a contradiction in terms as, if the Claim was an abuse of process, the Court would strike it out and not allocate it to any track?

 

I'll have to be careful what I'm posting up now though, for obvious reasons. Either way, anything that is posted is being served on Barclays and sent to the Court - I just think it's interesting they spend time scouring Consumer forums rather than dealing with complaints effectively!

[huggles]

very interesting indeed. have you asked them why they can't just deal with the issues / answer the questions you have raised in the letter?

[car2403]

They are abusing the system, huggles - not me. They don't have my consent to process my data and have recorded a Default that I've challenged and they haven't capitulated and removed it after I've pointed this out to them.

 

Without a signed agreement they don't have a leg to stand on because of s.127(1) and s.127(3) CCA 1974.

 

It seems they will keep up the pretence of having a correctly executed agreement until they are forced to submit it as evidence. What they don't realise is that I have binding legal precedant from the Court of Appeal and House of Lords that says the Default amount is inaccurate and unlawful, so having a properly signed agreement won't add to their case. They have also already said no such agreement exists, which they are bound by under s.172 CCA 1974 - if they want to submit what they have, they'll have to convince the Judge that it's just to submit whatever it is and get the leave of the Court to do it. I'll be arguing that shouldn't happen as they've had plenty opportunity to resolve this amicably without going to Court.

 

I think they'll try to bamboozle the Judge with legal jargon, (remember that Judges aren't experts in Consumer Law) so I intend to submit a skeleton argument outlining all this before the hearing date. If Barclays intend to turn up and defend, they will have a fight on their hands - but until that happens, I'm not wasting any more time writing to them as I've already done everything I can go resolve this outside of a Courtroom. If they are relying on me not understanding my rights and their obligations and how the law applies to both, they are sadly underestimating me.

 

Remember also that it was Barclays that said they wouldn't respond to any more of my letters to them unless they were "instructed to respond from our Head Office in London".

 

I'm only after Default removal, but if it goes all the way, I'll be demanding the amount I'm entitled to as damages as well seeking costs because of the way they have conducted their litigation. It would save them a lot of money just removing the Default. Heck, I'm even prepared to continue paying the balance, as the debt still exists either way, but they don't have the sense to see the wood for the trees here.

 

I'm still awaiting final allocation to the small claims track and a hearing date being set on this one.

[huggles]

bloomin' marvellous that they can find the time to read this forum though - I'm not sure what they're hoping to acheive by doing so but it sounds like they need a lesson in consumer law themselves!

 

I'm only after Default removal, but if it goes all the way, I'll be demanding the amount I'm entitled to as damages as well seeking costs because of the way they have conducted their litigation. It would save them a lot of money just removing the Default. Heck, I'm even prepared to continue paying the balance, as the debt still exists either way, but they don't have the sense to see the wood for the trees here.

 

This is exactly the spot I find myself in, I'm really at the LBA stage now I have been trying to get this removed for 9 months now!

 

Lots of luck to you.

[car2403]

I'm writing to the Court ask them to order Barclays to disclose (I doubt I'll get this in the for of Special Directions) the agreement and terms under CPR Part 27.2(3). (Which allows the Court to order them to comply with my CPR Part 18 request, even if the claim is allocated to the small claims track)

 

If this doesn't work, I'll just have to prepare a 20 page skeleton argument elaborating in boring detail when my claim should stand - I can't be bothered with that, so fingers crossed I get lucky with this one before I devote a week to writing a document...

[speedtrip]

car, very impressed by this thread and will be approaching these same issues with my bank in the near future.

 

Where did you get all this information from as. I may get the small claims book but I am not sure that it would help me as the alleged debts are over £5k and even offsetting only the od would get near £5k.

 

As regards the £5k, what drives the amount being disputed, the bank charges, the alleged debt, do you include damages in this. I would like to keep in small claims if possible.

 

Currently, my bank has admitted in writing that too long ago to find CCA, but no response from DCA re o/d. Both requested late august and in dispite.

 

Any suggestions.

[car2403]

car, very impressed by this thread and will be approaching these same issues with my bank in the near future.

 

Hi and welcome to the Barclays Default removal saga, speedtrip! Thanks for the positive feedback - I thought I was on my own for a moment there!

 

Where did you get all this information from as. I may get the small claims book but I am not sure that it would help me as the alleged debts are over £5k and even offsetting only the od would get near £5k.

 

I got the basics of the claim from the HUGE Consumer Credit Agreements thread - this is now over 10,000 posts, but well worth the read!;

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements.html

 

There is also a lot of basic info from tomterm8, a resident expert on the CCA, here;

 

http://www.consumeractiongroup.co.uk/forum/general-debt/108467-basic-introduction-consumer-credit.html

 

Other than that, it's pure determination to win and lots and lots of hours of research in to the issues. I've put some of this into this thread as well;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/111211-defaults-background-removal-methods.html

 

That's probably enough to get you started!

 

As regards the £5k, what drives the amount being disputed, the bank charges, the alleged debt, do you include damages in this. I would like to keep in small claims if possible.

 

The amount that "decides" which track your claim ends up on depends on several factors - only 1 of which is the value of the claim. Other factors taken in to consideration is whether the law is "clear" and "good" and whether there is sufficient precedant for the claim to be heard in the small claims track. IMHO, an Act of Parliament enacted since 1974 and more recent binding precedant of both the House of Lords and the Court of Appeal (Civil Division) fit this criteria.

 

The value of your claim is the amount you are claiming against the Defendant - in my claim, I'm arguing they've rescinded on their contract (which means I shouldn't have to pay £1,200 in overdraft balance and £1,800 in personal loan balance) and caused me damage by Defaulting/Terminating the account unlawfully. As I'm "claiming" for Default removal (which has no monetary value) and damages, (a £1,000 value using the precedant I have) the value of the claim is only £1,000. Even if I'd included Bank charges (which I've already recovered in a previous claim) that would still make it less than £2k.

 

I reckon the Bank will try to argue this should be heard on the Fast Track, as they will want to be able to recoup their costs (if they win, which won't happen!) and want to intimidate me in to withdrawing - the Fast Track isn't really that much different to the Small Claims Track, from what I've seen, just the risk is bigger. I think you'll agree I've got little to lose here though either way.

 

Currently, my bank has admitted in writing that too long ago to find CCA, but no response from DCA re o/d. Both requested late august and in dispite.

 

"Well, it's too late to continue making payments", would have been my response in the case!

 

I think this is your thread on this one;

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/112285-allied-international-credit-4.html#post1293246

 

The overdraft issue is clear, IMHO, in that s.74 CCA 1974 allows the OFT to issue a Determination that certain agreements are exempt from the form requirements of Part V of that Act. The OFT issued a Determination, but put conditions on it at the time - the Bank, wanting to rely on that Determination, has to show that they have conformed to the Determination. (Something that Barclays seems to be unable to do here) If they can't conform to the Determination, they have to meet the form requirements and can't as they don't have signed agreements. s.127(3) then comes in to force, as they don't have anything with prescribed terms and the debtors signature on it, so they can't enforce. By Defaulting the account, they are "enforcing" their rights - which they can't legally do without having a CCA compliant agreement or having complied with the OFT Determination.

 

Ultimately, I wouldn't have brought the claim on the O/D on it's own without other issues - I reckon the Court will allow Barclays to submit expert evidence from a member of their own staff showing the process (which complies with the OFT Determination) that is taken when an O/D is applied for and swearing on oath that this is what happened in my case. That's why I'm including the charges I've already recovered, arguing they made up some of the Default amount when the agreement was terminated - making the Default unlawful. (The binding precedant on this is in my POC earlier in the thread)

 

I'll pop over to your thread to have a look in detail...

[car2403]

I'm writing to the Court ask them to order Barclays to disclose (I doubt I'll get this in the for of Special Directions) the agreement and terms under CPR Part 27.2(3). (Which allows the Court to order them to comply with my CPR Part 18 request, even if the claim is allocated to the small claims track)

 

If this doesn't work, I'll just have to prepare a 20 page skeleton argument elaborating in boring detail when my claim should stand - I can't be bothered with that, so fingers crossed I get lucky with this one before I devote a week to writing a document...

 

I've had a CC letter from Barclays to the Court;

 

With reference to the above, I have received a copy of the Claimant’s Allocation Questionnaire and draft Order for Directions.

 

The Bank opposes the Direction proposed by the Claimant as they are inappropriate for a Small Claims action and CPR 27 sets out standard directions for a Claim such as this that would be adequate for it.

 

Furthermore, the Claimant is requesting Directions that are either inappropriate for this Claim or if appropriate, confirm that this Claim should be stayed pending the outcome of the OFT test Case in the High Court. As an example, I refer to the 7th Direction curiously numbered 20 in the list of proposed directions.

 

The Court will also be aware that the Bank has requested in its Defence for the Claim to be struck out as an abuse of the Court’s process

 

The Draft Directions he is referring to can be found here;

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default-7.html#post1274737

 

No 7 (I'm not sure what he means by referring to No 20, as its not in my saved AQ) is;

 

7. Whether such charge is accepted to be a penalty, and if not why not;

If such charge is alleged to be a pre-estimate of the Defendants loss incurred by the Claimants actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;

 

I can see why they've asked for the stay to be applied (albeit in a roundabout way) but I think I'll reply to the Court, cc Barclays, advising that the charges have already been recovered during a hearing. If the Court stays the claim until the OFT TC, I'll have to try to lift it, but will stand little chance of that really. I'm not really that bothered, as I'm not paying any of the balance at the moment until this is resolved - the problem will be that the Default will remain there, unless I can convince the Court to order its removal until the case is resolved. (Possible, but not probable, IMHO - but I'll give it a go if the stay is applied)