Yes, my claim is already at the threshold, so would it be possible to start a separate claim for these afterwards - it would would prob be a much smaller claim for about £1-3k? Also, is there any way I could use the current claim to leverage Barclays into discharging the suspended repossession order? The arrears have ben cleared for about 3 months now, but they would have been cleared much sooner without all these additional charges.

No problem.Andy, did you see my queries in post 22 above?Thanks,James

Edited as suggested abovep>

I just thought of s couple of questions around this claim: 1. There is a suspended reposession order on the house and I would like to get this discharged asap. However, I have only recently cleared the arrears and understand that the courts/creditors may not agree to this until the account has been in the black for some time (1 year?). Clearly, if Barclays hadn't stacked on unfair charges, I would have reached this point a lot sooner (up to 2 years ago). Is there any way I could use tgis to get the reposession order removed more quickly? If so, should it be in my poc or should I raise it as a separate issue after my claim is completed? 2. There are some additional charges that I didnt reference in this claim. From the poc template, I now see that I could have included them: 2 x home visits @ £80 each 2 x Legal charges relating to suspended reposession @ ~£500 each Since my current claim is already just below the small claims threshold, there wouldn't really have been much benefit in including these anyway. However, what would be the chances of claiming these separately at a later date - these are more recent so they are within the 6 year limit until December 2015. Cheeky, I know! My gut feeling is the odds are slim, but it might be worth chancing it.

Ok. Thanks for that. J

Okies. How does this look? Quite a bit simpler than the CC claim by the look of things!

Cool. I will sort this out tonight and get it posted tomorrow. :)J

That link doesn't work for me; I get a permissions error message? J

1st draft of POC. I have italicised where mortgage-centric tweaks have been made to the usual credit card template. Would appreciate if you could give these particular attention, as I am not 100% sure about some of these. Thanks! J 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 xxxxxxxx ("The Account").

 2. The Agreement essentially consists of the Defendant providing the Claimant with an initial advance which the Claimant agreed to repay. In return the Defendant was entitled to charge interest on the balance at the published rate. 

3. The Agreement was a Regulated Agreement for the purposes of the Consumer Credit Act 1974. - Remove? 

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, if the account was in arrears 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 an initial advance. (b) The Defendant was entitled to charge interest on the balance at the rate agreed in the Offer of Mortgage. 
© The Claimant was to pay a fixed amount by the due date. The Defendant could vary the amount by notifying the Claimant in writing. (d) The default charge was £27.50 from Dec 2002 to Sept 2008. In addition, a separate default charge was levied for arrears on the account. This was £15 from January 2003 to March 2004, increasing to £40 from July 2004 to Sept 2008. From Oct 2008 onwards, these separate charges were consolidated into a single charge of £40.

 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. 

12. 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.

 13. 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 £1.5k between xx/xx/2002 and xx/xx/2010. Particulars appear from Schedule 2. 18. On xx/xx/xxxx the Claimant demanded repayment of the sums wrongly applied. 

 And the Claimant claims;


 (1) A declaration that the sums totalling £1.5k have wrongly been applied to the Account. 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 £1.5k and interest in restitution of £8k as per Sempra Metals v Inland Revenue Commissioners. 

(3) Interest under section 69 of the County Courts Act 1984*at the rate of 8% per annum [daily rate of xxp per day] from the date of claim until judgment or sooner payment. 
(4) Court costs of £455.

 I believe that the facts stated in these particulars, comprising of 3 pages, are true. 

Dated 



Signed




 Schedule 1

 From Barclays Conditions in force (as of Dec 1995). 3. Payments 3.1 The Borrower shall repay the Amount Secured to the Company on the terms set out in the Offer of Mortgage. Subiect 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 3.3 All payments in accordance with these Conditions except payments of redemption monies shall be made to the account of the Company by a direct debit and the Company shall be entitled to calculate each Monthly Payment in accordance with the provisions of these Conditions when collecting it 3.4 If any direct debit payment is refused by the Borrower's Bank then the Company shall be entitled to make a service charge for each unsuccessful application for payment of an amount fixed by the Company from time to time which shall be payable by the Borrower on demand and until such sum is paid it shall form part of the Amount Secured and bear interest at the Rate 3.5 If any direct debit to the Company is cancelled and is not replaced with a new direct debit or the account is in arrears then without predjudice to the other remedies of the Company in respect of such breaches of these Conditions the Company shall be entitled to make a monthly administrative charge in an amount fixed by the Company from time to time, such charge to be payable on demand by the Borrower and thereafter until paid shall form part of the Amount Secured and bear interest at the Rate 3.6 Whenever any Monthly Payment (including interest payable under these 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

Checked through my statements and the charges have clearly been added to the balance. This is actually stated on some of the statements and the numbers tally up as well. Will complete my N1 and file this week. J

Yup and I've replied! :)Gonna have another look at the statements when I am back home tomorrow. Fairly sure that this is where the charges have been levied but maybe I missed something.Agree that the claim should be straightforward if the statements back this position up.Will report back over the weekend! ;)J

Barclays are arguing that they do not have to refund the charges/interest directly to myself, as the charges themselves were never added to the account balance. So basically, they are suggesting these would only have been paid when the mortgage expired - e.g. when the house was sold. At the same time, they do concede that interest will have been taken and this would have been added to the balance. I am not entirely convinced by their position, as I thought the statements indicated the fees WERE added directly to my balance - there was no additional fees balance and the fees are clearly on my statements. I need to double check this when I get home though. Would this even make much difference in relation to a claim? The majority of my claim is for restitutionary interest so, assuming that this is still valid, there can't be an argument about this being paid directly to myself? J

Mediation was sheduled for today but it doesn't look like it will be required.It's fair to say that I am having a good day though. :)J

Lettered them up yesterday. :)Also spoke to account services and was told that there is a cheque for the refund on it's way... I'm away for work this week, so will find out when I get back home on Friday.Not holding my breath though, as the customer service rep didn't seem to be the sharpest tool in the box!J

Finally had a response from Barclays... They have refunded around £450 in charges and £150 in interest to my mortgage account. Have been unable to verify this as yet, but I am writing them a response to accept this only as partial payment towards the full balance and request that it is refunded to my current account instead. They also refer to the OFT test case regarding charges and claim that this forms the basis of a test for fairness in relation to mortgage accounts... I don't think so! J P.S. Next stage will be to file N1, but I would like to conclude my CC case first.

Back from holidays now and the letter was sent yesterday. Will let you know when I hear something new. Thanks for the support! J

Proposed response to latest offer from Barclays: "Unfortunately your offer has arrived just as I am about to head on holiday for a week, so I do not have much time to address it’s contents at present. However, mediation is scheduled for the 27th and I believe that this still leaves us with plenty of time to conclude this matter on my return. In brief, your current offer is still unacceptable to me on several accounts: 1. The settlement still includes provision for a balance to be paid to Lowell, yet your client no longer owns this debt. This clearly has no legal basis and would be frowned upon by both the court and the Financial Ombudsmen. Please understand that I cannot accept any offer with this condition attached. 2. Additionally, your offer is still substantially less than the total value of my claim and I am under no obligation to compromise. It's stated clearly in the CPR that rejection of a settlement offer does not constitute "unreasonableness" on its own. I fail to see how any other aspect of my conduct can be construed as obstructive. Indeed, I would remind you that your client has had ample opportunities to resolve this matter before a claim was raised. However, they have only chosen to engage after the legal process was initiated. I strongly suspect that you client is following a consistent pattern of behavior and may be abusing the legal process as a mechanism to stall their ultimate settlement of this claim. Consequently, I would warn you that I will reclaim costs for time and money spent producing a court bundle if they then elect to settle prior to a hearing. I'm sure you appreciate that a court would most definitely construe this behavior as unreasonable under the CPR. I reiterate that I am happy to settle for full payment of the claimed amount and avoid further legal fees and use of the courts time. 3. I appreciate that your settlement offer now includes specific reference to the default you added on 11/2/15. However, I would appreciate if this can be reworded to include all adverse credit markets added to my file in relation to this account. This is because Lowell have registered an additional default of their own and I would like to ensure its removal is included in any settlement. 4. Finally, I will only withdraw my claim once settlement funds have been transferred into my account and all adverse credit markers have been removed."

Mediation is booked for the 27th of March - the latest date that was available, so looks like stalling. Nothing more from Barclays yet; no comment from the new solicitor in response to my prompt. J

Ok. Will speak to the mediation people this afternoon and try to get some dates in soon.Have already fired a prompt at Barclays.Just waiting for a response now. :)J

Mediation service contacted me this morning, although I missed the call. Sabresheep, how does the mediation work? Will they just be looking to find some dates i can make at this stage?Thanks,J

Looks like my legal second has finished her placement. Barclays appear to have instructed a solicitor, although I also note she also worked as a legal second for Barclays Litigation before recently qualifying. Will let you know when I hear more. J

Stalling responses received from Barclays. LBA sent yesterday. :)At least it won't take me too long to put together my N1 this time! ;)J

AQ sent off yesterday and will make a note to check with the court/contact barclays 1st week of March. :)Thanks!J

Thanks! :)I understand they also have to file an AQ and I presume they will do this just before the deadline.Does the court confirm when they have filed this or is the next communication a mediation/hearing date?J

Allocation Questionaire (N180) received at the weekend and I'm going to send it back today. Just wanted to check that I have everything correct:A: Yes to mediationD1: Local CourtD2: No expertsD3: No witnessesI can't find any details of a fee to be paid with either the form or in the ex50 leaflet. Should I expect to pay a fee for this?Thanks,J