BC Charges ***WON with Compound Contractual Int't***

[slick132]

Are Junior and Linz the same user

 

The BC POC's are linked in the Stickies at the top of the BC forum.

 

Guidance about AQ and Draft Directions - http://www.consumeractiongroup.co.uk/resources/templates-library/48-bank-templates/125-allocation-questionnaires-a-guide-to-completion-

 

Court Bundle - http://www.consumeractiongroup.co.uk/resources/templates-library/48-bank-templates/119-basic-court-bundle

 

If it were my choice, I'd go for it but it's YOUR choice and only YOU can make this decision.

 

[linz22]

Hi slick,

 

Yes sorry junior and linz are both the same,

 

i made one account for my girlfriends bank and one for my self i regularly check both accounts

 

but i forget to change accounts when making posts lol sorry for the confusion,

 

i will read through your links and get back to you with any problems,

 

thanks for helping out.

 

So far i have managed to fill in the EX160 form as i am on benefits,

i have read the court bundle and i am aware i need to include my own information.

 

Is there a step by step guide on the forum which explains each step and what i have to do to file a court claim?

 

i am having difficulty in understanding all this

[slick132]

The first priority is to ensure your POC is accurate and up to date.

 

Then file the claim at your local county court using the BC POC's mentioned above.

 

When waiting for BC to defend, spend time reading up on:-

 

1. How to d/w the AQ and associated Draft Directions.

 

2. What to include in your Court Bundle. You can gather this together in a file ready to print off when required by the court.

 

We did have a step by step guide for bank charges but, after the OFT Test Case, this has been withdrawn. We will have to put a new guide together to deal with CCard claims but, in the meantime, you can get all you need from other threads or by asking here.

 

Re the N1 completion, see Articles 7 and 12 here in the Bank Charges Library - http://www.consumeractiongroup.co.uk/resources/templates-library/48-bank-templates

 

[linz22]

Hi,

 

I have read all the links and i have got the claim form and particluars of claim almost sorted, i have a few questions and would be gratefull if somone could answer these for me so i can send of the claim form.

 

1.I pasted my particulars of claim below minus personal details, could someone check through to see if i have covered everything please?

 

2. On the N1 form it asks for the value of the claim, shall i put in the total amount charges and the statutory 8% percent interest calculated from today? where do i put in the compound interest?

 

3.On the N1 claim form what address shall i use for the defendant? i have read a few threads where barlcays have not aknowledged the court claim due to the address

 

4.I am claiming charges prior to the 6 year limit and would like to claim these back, slick mentioned in an earlier post i will have to rely on s.32 limitation act 1980, what information can i use and where should i put this in the claim form?

 

5.What schedule of charges should in include with the N1 form?

 

6. The particulars of claim should i print of a word document version and attach this to the N1 form and leave the POC section on the N1 form blank?

 

7. Would it be best to claim by post rather than money claim online?

 

8. lastly i am on benefits and i would like to have the fees waived but im not sure when to apply for this after i submit and pay for the claim or before?

 

Claim No [ ]

 

IN THE [ENTER YOUR LOCAL] COUNTY COURT

 

BETWEEN

 

[YOUR FULL NAME]

Claimant

 

and

 

BARCLAYCARD PLC

 

Defendant

 

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 xxxxxxxxxx ("The Account").

 

2.The Agreement essentially consisted of the Defendant providing the Claimant with a credit card (“The Card”) which would allow the Claimant to make purchases and receive cash advances on credit. In return the Defendant was entitled to charge interest at the published rate.

 

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

 

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 and or for exceeding the credit limit 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 the Card. The Claimant was entitled to use the Card to make purchases and receive cash advances up to a credit limit (“the Limit”) set by the Defendant. The Defendant could unilaterally change the Limit by giving the Claimant notice in writing.

(b) The Defendant was entitled to charge interest on the purchases and cash advances at the published rate.

© The Claimant was to pay the minimum payment of 2.25% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

(d) In addition the Defendant was entitled to charge default fees (“the Charges”) where the Claimant exceeded the Limit, did not pay on the due date or had a payment returned. The Charges are currently £12 for each transgression. Prior to 2006 the Charges were £xx. Penalty

 

9. The Charges were payable on breach of contract by the Claimant.

 

10.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.

 

11. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

The Regulations

 

12.At all material times the Claimant was a consumer within the Regulations.

 

13. 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.

 

14. 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 totaling some £[xxxx] between [ xx/xx/xxxx] and [xx/xx/xxxx ]. Particulars appear from Schedule 2.

 

18. On [ date of your preliminary letter ] the Claimant demanded repayment of the sums wrongly applied.

 

19. The Defendant has not repaid them or any of them.

 

And the Claimant claims

 

(1) A declaration that the sums totaling £[ xxxx.xx] have wrongly been applied to the Account

 

(2) Payment of the said sum of £[xxxx.xx ] and interest of [£xx.xx] applied by the Defendant thereon.

 

(3) Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of payment of the Charge to date in the sum of £[xxx.xx ], and at the daily rate of [ xx ] until judgment or sooner payment.

 

(4) Court costs of [ xxxx].

 

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

 

Dated

 

Signed

schedule 1

 

From the Terms and conditions currently enforce (as of Sept 2007).

 

2.5 You must keep within your credit limit. When working out whether you have gone over your credit limit, we can include the amount of any authorised transaction not yet put on the account.

 

3.1 You must make all payments by the payment due date. To help you to do this, your monthly statement will tell you how to make payments to reach us on time. Where we become aware that your monthly payment was received before the payment due date but credited to your account after this date because of an error by us we will either refund or not charge a late payment fee.

 

From Key Financial Information (Sept 2007)

 

Amount of credit

 

We will tell you your credit limit when you first receive your Barclaycard. We may

change your credit limit depending on our assessment of your account and will tell you

about these changes by writing to you.

 

Monthly Payments

You must make the minimum payment every month of 2.25% of the amount you owe

us on your monthly statement or £5, whichever is more or the entire amount if less

than £5. You must pay the minimum payment by the due date shown on your

statement. This will normally be 25 days after your statement date.

 

Default Charges

 

We will charge you for any reasonable costs or losses we incur if you break this

agreement, including the following charges:

£12 if you do not make at least your minimum payment by the payment due date;

£12 if you exceed your credit limit at any time;

£12 if a direct debit, cheque or other item is not paid when first presented.

 

Schedule 2

 

Attach your schedule of charges and head it schedule 2 be sure to include the date that charge was applied to the account, the date you paid the charge, the type of charge eg over limit, late payment etc

[slick132]

Hi Linz,

 

1. The POC's will be ok if you've used or adapted the ones linked through from the BC Stickies. However, where you set out the Claimant and Defendants' names, you must show the Defendant as Barclays Bank PLC t/a Barclaycard.

 

2. On the N1, the "Value of Claim" is your total charges plus compound interest. Below this, you'll mention the amount of Statutory Interest accruing on a daily basis.

 

3. Re the Defendant's name and address, see here - http://www.consumeractiongroup.co.uk/forum/showthread.php?173450-Use-the-right-name-when-Filing-against-BC

 

4. This can be dealt with in your Court Bundle, if and when BC oppose the inclusion of the older charges.

 

5. Your SOC is the updated spreadsheet listing charges and compound interest.

 

6. Yes, print of a word doc't as per the POC instructions and in the Particulars of Claim Section, enter "See attached Particulars of Claim sheet".

 

7. Ideally take the 3 copies of the N1 and the POC's to your local County Court. They'll stamp them and return 1 copy to you. They'll keep 1 copy for the court file and send 1 copy off to Barclays HQ. If you can't attend the courthouse, send them there by post. Do not use MCOL.

 

8. Apply for remission before you file the claim. The normal link is not working for me but you can try it - http://redirectingat.com/?id=3236X604245&xs=1&url=http%3A%2F%2Fwww.hmcourts-service.gov.uk%2FHMCSCourtFinder%2FGetLeaflet.do%3Fcourt_leaflets_id%3D172&sref=http%3A%2F%2Fwww.consumerforums.com%2Fresources%2Ftemplates-library%2F58-helpful-external-links%2F213-court-fees-do-you-have-to-pay-them

 

If it doesn't work, read here - http://wzeu.ask.com/r?t=p&d=eu&s=uk&c=ac&l=dis&o=10000532&sv=0a652916&ip=5c1db525&id=58E6F361A7D64895D4E00AE8B6278F78&q=Small+Claims+Court+Fees&p=1&qs=6&ac=168&g=3f93Crg0Ma%bWg&en=te&io=0&ep=&eo=&b=a010&bc=&br=&tp=d&ec=1&pt=Court%20Fees&ex=tsrc%3Dtled&url=&u=http://www.compactlaw.co.uk/compactlaw-admin/court-fees.html Your local county court can help you with this.

 

[linz22]

Hi thanks for the reply,

 

the total charges plus compound needs to be put in the value claim below it i need to put the statutory interest occuring on a daily basis, which is total charges multiplied by 0.2222 i think i have the link which explains how to work it out.

 

But what about the statutory interest at 8%, my total amount to date is £232 at 8% where do i put this figure in?

 

should i hand the remission form to the courts wait to hear back from them then file the court claim, or should i take the remission plus N1 form and submit both to the courts at the same time?

[slick132]

Hi Linz,

 

Please see my PM to you.

 

I'm logging off now but will catch up tomorrow.

 

I've not had experience with the fees remission forms but I'd take everything into court and ask for their guidance.

 

Re your spreadsheet, as you are claiming interest in Restitution at BC's compound contractual rate, you can ignore the 8% Statutory Int't in calculating the main body of your claim.

 

You can claim 8% Stat'y Int't from the date of the claim up to settlement. This is done by working out the daily rate - ie your claim as per the SOC @ 8% / 365. This is the same as saying claim amount @ 0.00022 per day.

 

However, I would claim the same daily rate as that shown on your spreadsheet (0.05436%) so you don't lose out between filing the claim and it being settled.

[linz22]

hi slick replied to your email address

[slick132]

Hi Linz,

 

Just to confirm, because you're claiming interest in restitution, the POC Section 19 should read:-

 

(2) Payment of the said sum of £[xxxx.xx ] and interest in restitution of [£xx.xx] as per the case of Sempra Metals.

 

[linz22]

Hi slick,

 

Just to update you on my claim, i have managed to get everything sorted out for my court claim and i am going to my local county court to submit this tommorow morning, i have had a lot on lately thats why i have been slow at this.

 

Just a few things i wanted to clear up before i print everything off.

 

On the N1 form where it asks for the defendants name and address it also asks in that section the amount claimed, and court fees, should i put the full amount claimed and court fees?

 

On the POC on section 8d it states "The charges are currently £12 for each transgression prior to 2006 the charges were".........some of my charges prior to 2006 were £15 and some were £20 so should i put the higher amount?

 

On the POC right towards the end it states "comprising of x pages, are true"...........does this include the poc including the schedule of charges and n1 claim form?

 

On the POC it states "Attach your schedule of charges and head it schedule 2 be sure to include the date that charge was applied to the account,

the date you paid the charge, the type of charge eg over limit, late payment etc"..................... .........do you have to put the date you paid the charge of?

 

Thank you for all the help you have given me so far i appreciate it.

[slick132]

On the N1, enter the amount of charges and interest being claimed. This will be the updated SOC total. The SOC should update each time you access it.

 

Leave the court fees section empty and let the court confirm what you should pay. Enter this at the court's office and fill in the total.

 

I trust you have named them as Barclays Bank PLC t/a Barclaycard and used the Churchill Place, London address.

 

Re the Charges amounts, always adapt what you put, to reflect your case. So you will say, "The charges are currently £12 for each transgression. Prior to 2006 the charges were £15 or £20."

 

"Comprising of x pages" - enter the number of pages of your POC only, probably 1 or 2 I guess.

 

Re the SOC, this should already have everything you need on it - ie the type of charge, date, amount and interest thereon.

 

8-)

[linz22]

Hi,

 

I have filed my court claim so its all up to the bank now. I didnt have to pay any court fees as i was excempt. Thank you to everyone who has helped me out and thank you slick for guiding me through my claim.

 

The statutory 8% interest is this calculated per year or does the court calculate this from the date i filed the claim until the date the claim is finalised and pay per day during the claim? i can remember calculating the 8% interest using an online calculator and it was around £500 but im not sure i will get this amount as my daily rate was £1.39, if this is calculated from the day i opened the account until the day the claim is finalised then i should get a lot more back.

 

Also roughly how long does a bank have to respond to a claim and how can i track the progress of my claim?

 

Time to start my claim with capital one!!! ))

[slick132]

Hi Linz,

 

As you're seeking interest in restitution, 8% int't won't come into it. See item (2) in post #45 above.

 

BC will acknowledge the claim and file a brief defence, usually within the time allowed (about 5 weeks from when your claim is stamped at court).

 

See Fenris's thread about progress.

 

8)

[linz22]

Hi,

 

Just spotted an error in my claim. On my schedule of charges where it asks you to put your account number, i accidentally put one digit wrong, would this affect my claim in anyway?

 

Also what can i do about barclays default on my credit file? they put a default and they have put partial payment on my credit file in august when i originally contacted them about refund of charges? what i dont get is they deducted there offer so that the outstanding balance i owe them would get paid off but thev put partial payment it should say full payment.

[slick132]

Hi Linz,

 

Drop a line to Barclays HO referring to your Court Claim No. xxxxxxx and point out that the claim mentions a/c no. xxx whereas it should, in fact, read a/c no. xxx.

 

Send a copy to your court asking for this to be linked to your Claim file.

 

Re the default, it includes unlawful penalty charges in the total and is therefore inaccurate. You should seek to have the default or any adverse credit file data removed. Read up on this in the Data Protection and Default Issues forum.

 

8)

[Still_surviving]

Slick

 

 

Having been on the legal issues forum much recently, it seems a default notice cannot be rendered invalid by virtue of including default charges - Rankine is the case law for this I believe.

 

This has been stated by several of the bods over there whom I would consider very well versed on legals.

[noomill060]

Search Rankin on CAG. Its not as safe for the banks as you believe.

 

The Rankins were fly by nights running a debt avoidance website- and the judge saw right through them.

[slick132]

Happy to be corrected if I'm wrong.

 

So what CAN Linz do about the CRA data.

 

8)

[Still_surviving]

hehe - i wouldnt dare to correct you slick

 

Im merely reporting what seems to be quite a firmly held belief by some of the most regular posters on the legal issues thread

[slick132]

Hi SS,

 

If I thought you were wrong or I was dead certain of my opinion, I'd say so. As I said above, I'm happy to be corrected and am willing to learn like anyone else on the site.

 

At least point us in the direction of the alternative opinions. 8-)

 

Thanks

Edited November 30, 2010 by slick132
left off bit of sentence ?

[linz22]

Hi,

 

I havent recieved any reply from the courts yet so i dont know my claim no. i handed the forms in and was told to wait to hear from the court. If i ring barclays and the court about the error would this be enough? and when should i do this?

 

Regarding the information on my credit file, when i first originally contacted barclays about the charges back in august they made me an offer, i rejected this and they made me a final offer in september. Now on my credit file the Barclays account which is being handled by Lowell was updated on the 22/08/2010 and the date satisfied was 12/02/2009, there is a section for the default date but that is empty and where it shows the payment history for the account it shows the letter D in red on december 2008, it also states partial payment.

 

Now what i cant seem to understand is for the past year they have been contacting me day and night for the outstanding balance so how was the account satisfied in feb 2009? im assuming barclays have took it upon themselves clear the outstanding balance and mark the account as satisfied eventhough i rejected there offer.

 

Regarding the default i am still waiting for someone to point in the right direction to get all the negative information recorded by barclays on my credit file removed, from previous posts it seems getting the information removed will be difficult so if anyone can help i would appreciate it.

 

no default date

defaulted on dec 2008/shown on payment history block

partial settlement/payment recieved

as full and final settlement although the payment

would not fully clear the balance

[Still_surviving]

Slick

 

Two posters, who are extremely active on the legal issues forum (pt2537 and andyorch) have both stated recently that the Rankine judgement made the question of default charges included in a DN balance as being not worth pursuing any more.

 

I only follow their posts, by virtue of the amount of people they seem to help, and the fact they work in the legal profession I believe?

 

I wish/hope they could be wrong as it would make a massive difference to 2 of my own claims.

[slick132]

Thanks SS. Aren't they discussing the issue of a/c enforceability in Legal Issues. That's not the case here.

 

It was thought that a dodgy DN followed by Termination on an a/c left the debt irretrievably unenforceable. And there's discussion about whether that is the case - unlawful rescission, etc.

 

I am saying here that the penalty charges on the a/c mean that the DN is inaccurate and should be withdrawn, even if it is then corrected.

 

In Linz's case here, she wants the DN removed and I think this should be possible. If they then want to issue a corrected DN, Linz may have reduced the a/c balance using the charges refund so either a DN is not appropriate, or it is less damaging.

 

8-)

[slick132]

Hi Linz,

 

Wait until the court have given you a Claim Number on your N1 which they'll return to you, stamped by the Court. Then deal with the alteration of the a/c number.

 

I think you should await the outcome of your charges claim, before dealing with DN's or other negative entries on your CRA files. This will be easier to do, once your claim has gone through and the charges are recognised as unlawful.

 

8)

[Still_surviving]

Slick

 

Hi mate - no...I have seen it specifically stated on more than one occassion that the inclusion of unlawful penalty charges, is not in itself grounds now to render a default notice invalid.

 

I will try and find the specific threads where this has been mentioned, but might I suggest you PM the guy pt2537, as im sure being part of the site team, he will give you what he believes is a definitive answer.

 

If I am wrong about this, then please accept my apologies, but as its relevant to my own cases, I did pay particularly close attention.