Barclaycard and 1st Cedit LTD

[slick132]

Hi Skunk,

 

Yes, read through other threads in the Barclays *WON* forum and also more recent cases here.

 

You should find most of what you need to start your claim.

 

If you get stuck, just ask. Better to get it right from the start.

 

[1159skunk]

im ready to file the N1 form, Do these POC look good

 

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 xxxx xxxx xxxx xxxx ("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 interestat 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 andreceive 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 3% of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.

(d) The default charges June 2004 – July 2007 were £636.00.

 

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.

 

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 totalling some £636.00 between25/06/2004 and 26/07/2007. Particulars appear from Schedule 2.

 

18. On 29/04/2013 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 totalling £636.00 have wrongly been applied to the Account. Some of 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 £636.00 and interest in restitution of £2949.55 as per Sempra Metals v Inland Revenue Commissioners.

 

(3) Interest under section 69 of the County Courts Act 1984 at the rate of 24.9% per annum on the amount claimed (daily rate of £2.12) until judgement or sooner payment.

 

(4) Court costs of £120.00.

I believe that the facts stated in these particulars, comprising of 2 pages, are true.

 

Dated

 

 

 

Signed

[slick132]

Hi Skunk,

 

I think mention of Kleinwort Benson should be a separate para.

 

In 19(2) you could refer to the SoC re the figures.

 

In 19(3) you will only claim 8% simple interest for Stat'y Int't.

 

The Bullet Point numbers will change due to the separate new item #20 that I suggest.

 

17. The Defendant wrongly applied Charges to the Account totalling some £636.00 between 25/06/2004 and 26/07/2007. Particulars appear in Schedule 2.

 

18. Some of the charges claimed are older than the normal 6 years but are claimed by virtue of s32 (1) c Limitations Act 1980 as per the case of Kleinwort Benson v Lincoln City Council.

 

19. On 29/04/2013 the Claimant demanded repayment of the sums wrongly applied.

 

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

 

And the Claimant claims;

 

(1) A declaration that the sums totalling £636.00 have wrongly been applied to the Account.

 

(2) Payment of the said sum of £636.00 and interest in restitution of £2949.55 as per the case of Sempra Metals v Inland Revenue Commissioners. Particulars appear in Schedule 2.

 

(3) Interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum on the amount claimed (daily rate of £x.xx) until judgement or sooner payment.

 

(4) Court costs of £120.00.

 

I believe that the facts stated in these particulars, comprising of 2 pages, are true.

 

[1159skunk]

Thanks slick, I will make the amendments today, your help is very much appreciated.

[1159skunk]

claim was sent off,

it's now been 13 days and still the £120.00 court fee hasn't been cashed in.

 

Anyone know if this is normal?

 

I'm assuming until the cheque is cashed the claim won't get filed.

[BRIGADIER2JCS]

Court offices are only open 5 days per week. I can assure you that the courts are extremely busy because of cut backs so taking weekends out of the equations the time scale is not overlong.

[slick132]

Hi Skunk,

 

Because court claims are now started at a central office and not your local court, delays are common.

 

Give them 21 days from when you sent in the claim and, if you've heard nothing from them by then, call them to ask about it.

 

[1159skunk]

The day after I wrote my last post cheque cleared and got acknowledgement from the courts.

 

Today I have received notice that the defendant filed an acknowledgement of service.

 

Also received without prejudice letter from Rbb litigation and special investigations team saying they disagree,

most charges are past 6 years and that my compound interest rate of 24.9% is excessive and not provided for by law nor consistent with interest incurred on the account.

 

And that furthermore over 1000 remains unpaid on the account ( which they have no legal control over as they sold the debt Out right )

 

they go on to offer 300 quid the difference between charge and 12 so called fair charge with 8 % interest.

 

Also offer to repay 30 court fee based on what it would have cost had i claimed for what they are offering

 

Please keep this settlement offer secret and so on.

 

I take it they have like 3 weeks left now to file a defence.

[dx100uk]

just for you notes

 

the FSA [FCA] DIDN'T make any judgement that £12 WAS fair

just that they would not pursue BANKS that charged that on BANK FEES.

 

nothing at all to do with credit cards or any other form of credit.

 

a PENALTY charge is a PENALTY, if they cant/wont justify its breakdown, its reclaimable

 

dx

[slick132]

I'd write a very short polite letter thanking them for their offer but rejecting it.

 

You need do no more for now.

 

[1159skunk]

I have an email address for them now, so I will email them a polite rejection letter today. Let them know I mean business.

[1159skunk]

was going to write the email today,

 

however Barclays have made an unexpected move,

 

the amount they say I owe £1100 had been sold to 1st credit about a year ago now

 

1st credit through all my letters removed the account from my credit file

no big deal to them as it had 3 maybe 4 months to go til 6 years was up,

that 6 years has passed now.

 

1st credit wrote to me today saying we can confirm that this account has been assigned back to the original creditor Barclaycard

and 1st credit are no longer instructed to deal with this case.

 

The entries for the amount owning have all been deleted from my credit file

due to the length of time involved since barclaycard closed the account.

 

I'm guessing that this is a way for them to minimise their losses

and eventually settle in full minus the amount owning

which they have no legal way to collect or demand payment for.

 

I'm also guessing I would have to accept any such offer when it is made.

 

I just hope they don't start recording the debt again

as I have worked hard over the last 5 years to clean up my record

with no late payments on anything and credit cards paid each month usually in full.

[dx100uk]

once a debt has dropped of due to the default reaching 6yrs it can never return.

 

I suspect its that rather than 1st credit removing it?

 

you do NOT have to accept the short settlement of your charges reclaim.

 

dx

[slick132]

Hi Skunk,

 

BC will have arranged to repurchase the debt form the DCA in anticipation of reaching a settlement with you for the charges reclaim.

 

If you are reclaiming charges older than 6 years, I'm not sure you can avoid them setting off the older debt for the a/c. If you reject a proposal to reduce your claim for charges and interest by the amount left unpaid on the a/c and it went to court, you could lose and end up paying Barclays' costs.

 

So we can give this full consideration, please confirm when you last acknowledged the debt or paid anything towards it. We can then decide if the debt should be SB'd and left out of the settlement arrangements, or not.

 

What happened about the PPI reclaim on this a/c.

 

[1159skunk]

The ppi I settled with the sum they offered,

I don't believe I have acknowledged the debt to Barclays.

 

As of yet they haven't asked for that back, but I doubt I'd offer it back to them anyway.

 

I have received the allocation questionnaire today in the post but am struggling to find any templates.

I did come across something in a post not sure if still the right thing to put

 

 

You -v- Bank Plc

Claim No:*******

 

 

 

N149/N150 allocation questionnaire

 

 

 

Section G/H - other information

 

If the court is in agreement, it is respectfully suggested that special directions may be given as per the attached draft order.

 

I believe the proposed directions will further the Overriding Objectives in that they identify the most fundamental issues in dispute, and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously.

 

If the Defendant has the serious intention of defending this claim at trial as is indicated by its defence, I would contend that it is incumbent upon it to disclose such information. Further, the proposed directions are now routinely ordered in claims of this nature in the Mercantile Court in London, as well as in small claims track cases in Leicester, Derby, Chesterfield, Northampton and Mansfield County Courts.

 

As the law relating to contractual penalties is long established, I believe the outstanding issues to be of fact. Accordingly, I would respectfully request that this claim is allocated to the small claims track, and estimate that the hearing of the claim should last no longer than one hour.

 

If I put that does that mean I don't have to do a court bundle within 14 days?

[1159skunk]

Well I hadn't fully read the paper work from the court when I wrote the above,

 

it appears that the claim is already deemed suitable for the small claims track and what I have is form n180 small claims directions questionnaire.

 

It appears as if it is as straight forward enough to tick a couple of boxes sign my name and send a cheque for 40 quid. Is that right?

 

So when would my bundle be needed,

 

do I get asked to provide that at a later date?

 

I already included my poc and soc when I filed my claim as told to by the ccmcc

[slick132]

Hi Skunk,

 

Once the Directions Q'rs are in, the court will normally issue further Directions that may include:-

 

1. The proposal of Mediation in an attempt to reach a settlement.

 

2. Final dates for submission of doc'ts if Mediation fails. That will normally require that your Bundle and Witness Statement are Filed and Served 14 days before the final hearing.

 

[1159skunk]

n180 sent a few weeks ago,

just waiting on cheque to be cashed in again,

 

time to get the scanner set up and start scanning all my evidence

ready to just print when the time is right.

 

On another note the person who was originally dealing with it from RBB litigation Eoin O'Reilly no longer works for Barclays,

as I found out when I emailed him to get an automatic response saying he's left.

 

They got a new trainee solicitor working the case now,

according to his LinkedIn web page he is just on loan to them so to speak.

 

Have received no further letters from Barclaycard as of yet, I guess this is going to go all the way.

[slick132]

Hi Skunky and thanks for the useful update about Mr O'Reilly's departure.

 

[1159skunk]

Glad to be of some help. His replacement is :-

 

Tom Longstaff

Edited September 25, 2013 by slick132
Employment history removed as unnecessary :-)

[1159skunk]

Quick update,

received letter from the court last week saying Barclays hadn't filed the directions questionnaire on time,

and they've now been given until friday 25th October to reply

otherwise their defence will be struck out and I can apply for judgement.

 

I haven't received anything from them yet,

but I doubt they'll let it slip through the net.

 

They sure are dragging this out as long as possible.

[1159skunk]

Also forgot I'm moving address in the next week, any advice on what to do please.

[1159skunk]

Quick update,

received letter from the court last week saying Barclays hadn't filed the directions questionnaire on time,

and they've now been given until friday 25th October to reply

otherwise their defence will be struck out and I can apply for judgement.

 

I haven't received anything from them yet,

but I doubt they'll let it slip through the net.

 

They sure are dragging this out as long as possible.

 

 

Special delivery letter received 3 hours after writing this post Barclays have now sent their N180 with a day to spare. Still not sure on how to change address with court, have got tom longstaffs direct email now so can email him the new address.

[slick132]

Just send the court a letter confirming your new address from xxdate and send a hard copy to Barclays Litigation unless they acknowledge the new address by email within 7 days of your email to them.