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Yes, it is in my claim. I was just clarifying it would still be applicable if we argued the charges should be refunded because Barclays had not fulfilled their duties under the CCA. Thanks, J
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Hi Andy, No word from Barclays aside from a complaint about tardiness shortly after I submitted the documents to the court. I responded to this and sent them an electronic copy of the witness statement with a hard copy following the day afterwards. I had a thorough look through the letters/statements at the weekend; it does seem like this might work and preserves around 50-60% of my claim. I presume it would still be valid to claim interest in restitution and this would still be classed as a mistake of law? Do you agree with my interpretation of the T&C's above? This is backed up by the current balance on the mortgage account, as it seems like Barclays have brought me 2 payments ahead in the last year or 2. If there is likely to be anything extra needed prior to the hearing on Wed 18th, I prob need to address it sooner rather than later. Unfortunately, it's going to be a busy week, as I have an offshore medical on Mon and builders at my house from 14-17th... Thanks again for your help, J
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So, as alluded to previously, I have had conversations with Barclays quite recently that lead me to "catching up" on at least one monthly payment. Looking at the T&C's (attached) and the chronology, it does seem possible this happened right at the beginning. 31/8/01 - Initial Advance/Legal Charge Signed 28/9/01 - First Payment made Referring to the T&C's: "1.8 "Monthly Date" means the last Working Day of each month during the Term or such other day as the Company may from time to time nominate in writing to the Borrower 1.9 "Monthly Payment" means the amount determined by' the Company as being payable on a Monthly Date 3.1 The Borrower shall repay the Amount Secured to the Company on the terms set out in the Offer of Mortgage. Subject to any conditions to the contrary in the Offer of Mortgage, the Borrower shall, pay interest on the Amount Secured from the Advance Date and on each Monthly Date shall pay the Monthly Payment which shall comprise interest at the Rate 3.2 The Borrower will make the Monthly Payment to the Company on each Monthly Date 3.6 Whenever any Monthly Payment (including interest payable underthese Conditions) shall be in arrear for more than 21 days the Company may (without prejudice to its rights under Condition 8) at any time enforce payment of any interest whether capitalised or not under these Conditions" My reading of this is that we should have made a payment on 31/8/01, the same day we received the advance and signed the legal charge? Of course, this seems slightly ridiculous, but it is there another way to inter prate their contract? It's also worth noting that I did not receive an arrears notice or summary until 2006, although they did levy charges from the first missed payment in 2002. Thanks, J
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Excellent work, Andy! You clearly know your stuff! I'll spend a bit more time tomorrow unravelling the detail in these clauses/contract and see how it all fits with my case. Night and speak tomorrow. Thanks again! J
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I have seen these notices before but I believe it was in conjunction with the Student Loans Company - who seem to send them out with everything! In the context of letters from Barclays there are only 2 that specifically mention the information sheet, although they haven't provided a copy with my SAR. Assuming that each of these letters would provide them with 6 months grace, this still leaves quite a lot of charges outside these periods. The only tricky bit is ascertaining exactly when I went into 2 months arrears... Based on their letters, this would be around 2006 and results in ~1k of charges and 3k restitutionary interest. However, it is probably worthwhile for me to look into this in more detail as, based on more recent conversations with Barclays, I suspect I may have been 1 month behind from the outset. This would mean that I could have dipped into 2 payments in arrears much earlier, even though their computer system didn't register this at the time. If this is the case, it would potentially leave the majority of my claim in tact - £1.5k charges and £6.5k interest in restitution. Good work! It's not over yet, eh? J
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Ok. Does the CCA apply at all? Pretty that they have the arrears notices covered. Is there any specific wording I need to check when I get home? J
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Filed with the court and posted to MAB. I've just had a look through the letters provided with my SAR and the arrears letters warn of registering a default with CRA's but there is nothing that would constitute a formal default notice. On a side note, should there have been a formal default before they pressed for repossession? A suspended order was granted, although the arrears have now been cleared for some time and I could probably apply to have it discharged by the court now. J
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Ok. off to to the court/Post Office now then. J
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Oh, and another thing... I have SOGA and UCTA in my court bundle but they aren't referenced in the witness statement. Do I need to add something in relation to these items into the witness statement? Are they worthwhile? Also, I did wonder about adding an alternative for the judge to grant interest in restitution at a lower rate and/or statutory interest on the charges. Is this something that needs to be explicitly offered now or it can be adjusted at the hearing? J
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P.S. Gonna try and get this to the court by 4pm, as I am 1 day over. J
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Just looking now. Interesting stuff! I added the following Limitation section just before the summary, do I need anything else for this? Also, the Sempra citation at the end is the only place where I mention that ruling. Do I need a section somewhere else to further explain the rationale? I have to admit this is the main legal point that I am still struggling to fully follow... Do I also need some documentation from Barclays in my bundle to justify the 19.5%, i.e. With their credit card rates? Limitation As noted by the Defendant, many of these charges are older than the normal 6 years. However, the Claimant asserts that, if these charges are deemed unlawful, then they constitute a mistake of law and may be claimed by virtue of s32 (1) c Limitations Act 1980 as per Kleinwort Benson v Lincoln City Council. Summary As set out above, the Defendant’s charges can in no way be considered to be liquidated damages. They are not a pre-estimate of, or in any way related to, the Defendant’s loss incurred as a result of the breach of contract. The charges are punitive and held "in-terrorem" - I.e. the clause is designed to deter the claimant from breaching the contract. The charges imposed are disproportionate, excessive, exorbitant and extravagant in comparison to the greatest loss which could have occurred as a result of the breach, and they unduly and substantially enrich the Defendant. As such, they are contractual penalties and unenforceable at law. Accordingly, the claimant seeks judgement in respect of: A declaration that the sums totalling £1680 have wrongly been applied to the Account. Payment of said sum of £1680. Interest in restitution (at 19.5%) of £8128.57 as per Sempra Metals v Inland Revenue Commissioners.
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Thanks Andy, Shall I remove these items from the WS then? Are there any that you think I should def try to keep in? 'The Data Processing Company UK' list - was unable to find this now CYNthesys Disclosures Disclosures Northern Ireland Competition Commission report from October 2006 Australian Default Fees report BBC Commission Report For the recent BBC2 documentary "The Money Programme", Peter McNamara BBC radio interview in 2004 They did seek repossession at one point, but I have to admit I don't recall a default notice being issued before that. I also can't find one in their court bundle from the repossession hearing. There was no default recorded on my Credit file, although the mortgage has never appeared on there anyway - go figure! They did send letters on occasion with a total of the arrears to date, but I don't know exactly how frequently this was. Thanks, J
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Ok. Bundle is printed now, less the items mentioned above. Having looked in more detail at Sempra, I have a question in regard to the interest rate. In that case the interest in restitution is used to equalise the position between two parties. However, the interest rate is set based on what the claimant lost rather than what the other party gained. Clearly, Barclays have access to better rates of return than myself, but is it reasonable to combine unjust enrichment with the Sempra case? Thanks, James
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Ta! Fixed.
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Hi again, Here's my bundle (less statements/correspondence). You will prob also notice that it is missing the following items mentioned in the Witness Statement: 'The Data Processing Company UK' list - was unable to find this now CYNthesys Disclosures Disclosures Northern Ireland Competition Commission report from October 2006 Australian Default Fees report BBC Commission Report For the recent BBC2 documentary "The Money Programme", Peter McNamara BBC radio interview in 2004 I am half expecting that Andy will suggest I remove these items from the witness statement, so they don't currently feature atm. I also still need to add kleinwort and sempra into the case summary... J [ATTACH=CONFIG]60138[/ATTACH]
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Here's a summary of the main points: http://www.inbrief.co.uk/personal-finance/supreme-courts-ruling.htm# However, I haven't really looked into bank account charges for a while, so I am not 100% sure there isn't a way forward for these kinds of claims. Best thing is to start a thread and get some people on board with more experience. J
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Excellent! Thanks for that. J
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I had a credit card case with Barclays before this. Most of the charges were over in excess of £12 but there were some at the £12 level. I claimed for everything plus interest in restitution: http://www.consumeractiongroup.co.uk/forum/showthread.php?110700-Orge-vs-BC-**WON**-chgs-repaid-with-compound-int-t-and-CRA-data-removed-(probably) Since the OFT ruling, bank accounts are more difficult/less successful than credit cards (fwiw, I haven't bothered with mine). However, it all depends on the institution you are claiming from and the individual circumstances of your claim. Best thing is to start a thread asap. Hope that helps, J
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Thanks! Glad to hear it reads ok. It's based around a couple of templates for lloyds and abbey credit cards. I'll put some links up when get a moment. J
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Also, for reference, attached is their defence. Thanks, J [ATTACH=CONFIG]60133[/ATTACH]
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Hi, Just putting finishing touches to my bundle before submission today. Would greatly appreciate if somebody could take a look over the attached witness statement. Main things to focus on are: Details relating to Bank Charges and how these tie in with a Mortgage - possibly some of this is extraneous? UTCCR MCOB Statute of Limtations - Does this need another section? Interest in Restitution - Again, does this require another section? Thanks, J
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Thanks. Just to let you know that I received Barclays Defence today. Pretty standard stuff: 2 witness statements - 1 on behalf of Barclays for supply of statements/T's & C's, 1 from MAB. Deny unfairness of charges. Deny that statute of limitations should be extended Deny that restitutionary interest is applicable I can do full text later on today, if required? Thanks, J
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Ok. Do I need to do the same for the utccr 1999/1977? The court bundle template I have been working from basically just dumped the whole text of these acts in at the back. I think I'm getting a little confused about how this should look like when I am finished? Is there a good finished example you could point me at, even if it is for different type of case? Thanks, J
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Ok. I'm struggling to find a good summary for Kleinwort and Sempra? http://www.ucc.ie/law/restitution/archive/englcases/sempra.htm I'm also a bit unsure on some of the acts - presumably the text needs to include the latest amendments? For example, would this be ok? SOGA http://www.legislation.gov.uk/ukpga/1982/29/data.pdf Finally, I would have expected to flesh my POC out a little, but this isn't clear from the bundle outline? J
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Quick status update. Currently compiling my court bundle in preparation for submission before the end of the week. Slick has advised on content by supplying the standard template. I will be adding case summaries for Sempra Metals and to Kleinwort Benson. Should I add anything about MCOB, even though it is does not appear to be formally covered as a result of the dates it was taken out? Thanks, James
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