Orge vs BC **WON**

[slick132]

Hi Orge,

 

Looks simpler now, they will simply deduct the debt from the amount they agree to refund.

 

They won't agree (IMHO) to you repaying debt over 2-3 years. Nor could you get the debt written off (again IMHO) because they have the right to offset.

 

Because the chgs you are reclaiming exceeds the debt you owe, I can't see the debt's enforceability being relevant.

 

The only real doubt, as I see it now, is whether you can get them to pay the CI element of your claim. They are likely to take it right up to court (see Bookworm's thread).

 

Wait and see how BC respond just now, though.

[orge]

Ok. I can see what you mean about offsetting the claim against the debt. Will brush up on the CI argument, in light of Bookworm's thread.

 

Thanks for the heads up!

 

 

J

[orge]

Hi,

 

Bit of a blast from the past on this one...

 

Basically, there was a technicality on my court documents and i didn't successfully file for the charges back in 2007.

Since then, a few debt collection agencies have chased me but with little effect. I've made them all aware about the CCA situation, which was lacking several proscribed terms:

interest rate

credit limit

repayments

 

Barclays have sent the same agreement out to me a few times, with no resolution of the issue - each time taking the stance that their end is satisfied.

 

It's currently with an agency and I've suggested we might be able to come to some sort of arrangement, but it would have to involve removal of any adverse credit information from the point where I originally asked for the CCA. They're unwilling to accept this and seem to believe that the issues with the CCA can be challenged by evidence that I have received statements and revised terms and conditions. When we discussed this on the phone, he seemed to want me to admit that I received these? Has anything changed in this respect, since this thread started? I haven't seen anything about this?

 

Unfortunately, I believe most of the charges have timed out, so the CCA argument is prob my best opportunity to get this resolved. Additionally, Barclaycard did make an ex gratia payment for some of the charges, although I never acknowledged this. If possible, I would like to have the default removed since this occurred long after the original CCA request. I appreciate that this may not be legally possible and could probably only be achieved through an out of court settlement, if there legal position is weak.

 

Any advice greatly appreciated.

 

Thanks,

 

J

[slick132]

Hi Orge,

 

Have all the default charges been repaid in full, regardless of whether you agreed to this or not.

 

Many site users have taken BC to court and won back all their charges plus interest in restitution, INCLUDING charges older than 6 years.

 

It is my understanding that a DN which included default charges (previously referred to as penalty charges) is inaccurate and should be removed although the banks and their DCA's are always unwilling to do this.

 

Arguments about credit agreements and enforceability have moved on significantly in the past few years. In short, if they have a credit agreement lacking the Prescribed Terms, it should be unenforceable in court action but the creditor is still able to pursue payment by other means.

 

[orge]

That's interesting news.

 

From my recollection, Barclaycard refunded part of the difference between the charges and their more recent reduced rate. This quite a small sum compared to my original claim, which included CI. I don't believe I contacted them either way to accept or refute this offer and it was paid direct into my account. There was an accompanying letter that said the usual sort of stuff - full and final settlement etc.

 

Ok, what's the score with interest and claiming over 6 years? Are there some recommended threads I could read up on these?

 

I believe I still have my POC and schedules filed somewhere, so it should be relatively straightforward to update and progress this down that route.

 

As things were, I would have chucked them a bone to have the default notice removed. However, if they're gonna stick on "principal", I'll take a payout along with that result!

 

J

[slick132]

Read some of the ***WON*** Barclaycard threads here - http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?97-Barclays-BCard-and-Woolwich-successes

 

Also see here :-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?310751-Barclaycard-Charges-Reclaim-***WON***-with-compound-interest-and-no-set-off-!!

 

I suggest you prepare an up-to-date spready using 24.9% as a nominal compound rate for interest in restitution. Adjust the spready figure to show the total amount of charges they've already refunded, leaving a net figure which you will now claim.

 

Then send it to BC with a Prelim Claim letter as if it was a new claim.

 

I see no reason why they should not repay the charge in full plus compound interest in rest'n, less the partial refund.

 

[orge]

Thanks slick! I'll check through those links tonight. Should I also mention the default notice at this stage?

 

Thanks,

 

J

[slick132]

Yes, if you want removal of a DN to be a part of your action, mention it in the Prelim Reclaim letter and the LBA.

 

[orge]

cool!

 

It looks like Barclays have actually sold the debt - is this allowed whilst a credit agreement is deemed unenforceable? I know it's not allowed whilst the debt is in dispute.

 

I assume that the right place to begin legal action is with the current agent, rather than Barclays themselves?

 

Thanks,

 

J

[slick132]

Hi Orge,

 

See my comments in the last para of post #54 above.

 

The bank may have broadly complied with your CCA request, even though the credit agreement is lacking some Prescribed Terms. This means the bank or subsequent DCA's may not be successful in getting a court judgement in respect of the a/c. But they can still pursue the debt.

 

I would pursue the issue of default charges and DN removal with BC direct, and not the current owner.

 

[orge]

Hi,

 

Revisiting this and determined to sort it once and for all this time. In the past, it's seemed like a low priority, as my main drive is for a clean credit file and I have had 2 other defaults with Barclays. However, these are due to drop off in the next 9 months and it would be great to remove this beforehand.

 

I've already SAR'd barclays for the relevant details and I'm ready to start down the claim route again. However, the situation is a little complex and I would like to make sure there aren't any pitfalls. These are the main details that I feel are relevant:

 

• Account was closed in 2010 and a default registered at this point
  
• Final balance was £500 in debt
  
• Last payment/acknowledgement was 2007 and the debt is currently statute barred
  
• Account has since been sold to a DCA who are "threatening" legal action
  
• A previous CCA revealed that barclays don't have a valid agreement (missing some proscribed terms)
  
• £1100 of charges were levied between 2002 and 2009
  
• I began a claim for some of these in 2007, but it did not go all the way to court.
  
• Barclays made a good will offer of £350 and directly credited the account.
  
• I never contacted them to accept this in lieu of the full claim amount.
  

 

My concern is that the majority of these charges are now very old (only £250 are within the last 6 years and £800 within 6 years of the default date). I understand that since McGuffick it is now necessary to prove that a default is entirely comprised of charges to have it removed? Consequently, it looks like I would need successfully argue the old charges and/or compound interest. I also believe that making a claim will restart the clock on the statute of limitations, so I want to be clear about my options and chance of success before I head down this route.

 

Additionally, I have 2 other defaulted accounts with Barclays. One is settled, but the other has an outstanding balance (£2k), but has also been sold to a DCA (I have a copy of the reassignment letter). This debt is close to becoming statute barred and dropping off my credit report. In the even of a win, I'm curious whether Barclays would still be able to set off against this account. Given that it has been reassigned, I suspect they may have a problem with this?

 

Finally, with CI and going back to the oldest charges, the claim could be >£5k. Am I right in thinking that the small claim limit has now increased to 10k since 2013?

 

Thanks in advance,

 

James

[orge]

I've just been looking through the letters which were issued in the run up to termination of the account and there are actually two default notices. One in 2007 and a later one in 2009!? The default on file is 2010...

 

I believe that the initial default in 2007 was not registered because their charge refund hit my account 4 days before last date for corrective action. However, I'm not sure why the default was registered nearly 9 months after the second letter. As stated previously, my last payment was in 2007.

 

I guess this could give me leverage to get the CRA to change the default date to 2009, which would mean this debt will expire about the same time as the others? Anybody know if there is also a case to get it put back to 2007?

 

Thanks,

 

James

[slick132]

Hi Orge,

 

What worries me with your case is that BC repaid the £350 several years back in settlement of your claim. Although you neither accepted or declined it, you accepted it by default.

 

If you wanted to pursue the matter and continue to seek the full amount of the charges plus simple or compound interest, you should have gone back to them years back. By failing to address the matter in a prompt and timely manner, you may have compromised your chance of success considerably.

 

In theory, you could now seek a refund of the charges plus compound interest and simply deduct the amount of the refund from the amount you claim, as a manual adjustment to the bottom-line figure on your spreadsheet.

 

No doubt, the debt would be far smaller than the amount of the refund you'd claim, so you would be in a strong position to have the debt erased and all negative CRA data removed. Even if you looked to compromise and have the debt and negative CRA data removed, that would surely help in cleaning your CRA files.

 

If you started the claim process again, you would have to follow it through with no delays. However, you need to give this very careful thought first.

 

Do you know when this a/c would be considered as Statute Barred.

 

[slick132]

My post above was made before I saw your post #62.

[orge]

No worries. I totally understand that I've not helped my case by sitting on this.

 

Last payment and acknowledgement of the debt by myself was 2007, so the debt should already be statute barred. However, as detailed above, there are several years between this payment and the default being registered.

 

Thanks for your help.

 

J

[orge]

Looking through the letters, it's become clear why the debt wasn't defaulted earlier. There are several letters to notify that they are going to set-off against my bank account throughout 2008. These end when those accounts were terminated and the barclaycard account then also progressed to termination. No termination letter has been supplied though, so I'm not 100% sure when this actually happened.

 

Thanks,

 

James

[slick132]

Ahaa, so were they taking from the bank a/c to pay arrears on the BC a/c ?

 

If so, can you say for sure when the last amount was credited from your funds to pay the BC a/c.

 

[orge]

Looks like the last amount credited from my bank acc is July 2008.

Will this payment have started the clock running again?

 

J

[slick132]

Yes it would, although that's already over 6 years back.

 

Was a DN issued for the BC a/c before or after July 2008.

[orge]

Well, there are three DN notices under CCA...

1 before July 2008:

November 2007 (refund from charges hit the account before the final date)

 

Then 2 afterwards

October 2008

April 2009

 

Thanks,

 

J

[orge]

Just had another thought...

After the original claim, there are more charges that were never part of that original restitution. With compound interest, these already amount to more than the default, although a few are a little over the 6 year mark.

 

From my original poc, I recall that it's possible to suggest several alternatives and leave it to the judge to decide. Even with no CI and only the recent charges, I would only be a little out of pocket in the event that a judge ruled against both these points. In my opinion, this is a minor risk and it's worth it for the chance to remove the default.

 

J

[orge]

Couple of questions:

1. Can a statute barred debt become unbarred by making a payment/acknowledging? I think the answer is no, it's barred forever once the 6 years has elapsed. However, it would be good to confirm.

2. Would they be able to set-off against my overdraft debt and, if so, would this reset the clock on that debt?

 

Thanks,

 

James

[slick132]

Hi Orge,

 

1. Once a debt is SB'd, that cannot be reversed by payment or acknowledgement.

 

2. This one is a little more tricky in my eyes. If you are reclaiming charges older than 6 years, arguing that the charges are not SB'd, then I can see merit in the bank setting off a refund against an older a/c balance.

 

[orge]

Yup, if I was claiming older charges, I can see an argument for 2. I was thinking that the main argument against set-off would be that they sold the debt on some time ago.

 

You didn't mention whether setting-off would reset the clock, but I am presuming it would?

 

Thanks,

 

James

[slick132]

Hi Orge,

 

If the debt is now owned by a DCA, there is no right to set-off. However, if Barclays Litigation see a refund looming, they may well repurchase the debt so a set-off can be made.

 

If a debt is SB'd, the SB clock is not re-set by a set-off.

 

If a debt is not SB'd, then a set-off would re-set the SB clock. However, if the refund covered the amount, that would not be an issue.