old Barclaycard (via Skycard] making F&F to Scotcall

[SabreSheep]

IN my case, using the ombudsmen was a waste of time, they agreed with the bank. All it did was drag it out and give BC something to refer to in their defence.

 

I reccomend, a final letter before action giving them 14 days. Remember to update your spreadsheet and Amounts on the letter.

 

Once those 14 days (After service) has been reached, issue the claim via post.

Use this time to draft your POC here.

 

Their responce is standard. BC follow a set patten as you will see on other threads

[L1882]

Hi Bazooka - the debt is now owned by Lowlifes, haven't made a payment in years (Not SB yet) and they have not yet complied with a CCA request so won't be getting a penny anytime soon unless they can come up with an agreement.

 

 

I'm not keen on using the FOS Sabre for the reasons you suggest and the various threads I've read on here - (though I am trying a different track on that one with another debt - I'll update on here once that is completed in about 6 months or so!). Ok so I issue the letter before action now and then issue the claim in 14 days, assuming they don't respond. Right I'll look at the templates with a view to getting that in the post tomorrow or Tuesday - then I'll try and get some guidance and help with the POC

[L1882]

I used the template linked above as a preliminary letter so I've tried to pull together a simple letter before action - could somebody please check this to make sure I have covered the salient points? Also should I include a section that 'puts them to strict proof' of their costs or would that simply be overcooking the cake?

[SabreSheep]

In theory all you need to do is change the letter on your previous one

 

 

ADD "LETTER BEFORE ACTION" title

Change date of letter

Update figures and attach updated spreadsheet.

 

No need to refute what they said in their reply, that will be for later.

Edited April 20, 2015 by SabreSheep
removing uneeded request

[SabreSheep]

ok just looked at the template you used.

 

my advice is as above.

Add the following

 

"In recent years Courts have been happy to accept claims for bank charges that exceed 6 years, whilst having regards to the precedent set between KLEINWORT BENSON -v- LINCOLN CITY COUNCIL under section 32 © of the limitation act 1980. Should county court action be needed I will be seeking to rely on this."

[L1882]

Hi Sabre

 

I have attached my original letter which didn't reference the 6 years. I have amended slightly and added letter before action and have attached both - hopefully this will cover everything, if you have time could you check please.

[SabreSheep]

Looks good

[AndyOrch]

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct

 

Annex A 2 (2.1)

 

Andy

[L1882]

Right I'll post that today. Just to be clear, from a dates point of view I guess I will need to file my claim, assuming they don't have a change of heart, approximately 17 days from today allowing 3 days from posting to receipt, so 07/05/2015?

 

I guess the main thing I need to do now is start to write the details of my claim for filing and thinking about the particulars as it would seem from other threads Barclays will take it all the way to the court date before settling?

[SabreSheep]

Yep, keep proof of posting and receipt as always

 

BC are suspected of having settled during or before mediation recently although confidentiality agreements mean this cannot be confirmed .

[L1882]

Sorry Andy I missed your post. Unfortunately it is too late to change as I have sent the letter but from your post I am deducing you don't feel the letter before action meets the requirement for showing why I feel the defendant is liable?

[AndyOrch]

No Its fine...just pointing out the relevant CPR that covers pre action protocol for your reference.

 

Andy

[L1882]

Cheers Andy - this could well be my first time of issuing so I'll need all the help and guidance I can get!

[L1882]

Right I've obviously got approx. 2 weeks to get ready to issue the claim so I'd like to get my ducks in a row ready.

 

 

I've been reading other threads and wondered if the one on this WON case was still correct and relevant in the main? http://www.consumeractiongroup.co.uk/forum/showthread.php?309037-Charges-older-than-6-years-***WON***-Compound-Int-t-and-**NO-SET-OFF**/page4

 

 

Alongside this I presume I need to prepare my supporting documents in a logical/chronological order? Beyond the statements they have sent what other documents would I be likely to rely on in this claim?

[slick132]

Shelley's thread is certainly still relevant although there have been some changes to certain advice since.

 

Compound interest in restitution is claimed on the SOC but only 8% simple s.69 Statutory Int't is claimed from the date of issue, at a daily rate.

 

If there is any debt outstanding owned by a DCA who bought the debt, Barclays Litigation will repurchase the a/c and Set Off, repaying the balance to you.

 

SabreSheep's BC thread is probably a more up to date guide.

 

[L1882]

I did look at Sabres thread but must have missed the POC details - I will revisit it now.

 

Not overly concerned if they buy back and offset to be honest - I can't imagine Lowlifes are going to let it go statute barred - though they still haven't provided the agreement so not much they can do unless/until they comply.

[SabreSheep]

http://www.consumeractiongroup.co.uk/forum/showthread.php?423796-SabreSheep-Vs-Natwest-Moorcroft-**-Satisfactory-Conclusion-**/page2

 

post #33 has a draft you can adabt.

 

Check numbering though, as I missed out 12) on it

[L1882]

Cheers Sabre - I shall read and amend, then post up for all ye experts to pull apart.

 

In terms of the brief details as I will be submitting online I presume something along the lines of Shelleys thread -

"Money claim for return of credit card account default charges andinterest in restitution on those charges."

Will suffice?

[L1882]

Hi Sabre - and anybody else willing to advise - I don't think I understand this section:

 

 

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.

 

Any chance you can just explain that (and the sub points) a little?

[L1882]

Right, I've made slight amendments only to the POC to match my claim - Also added a number 12

 

Does this look about right?

 

POC BArclaycard

Claim No [ ]

IN THE [xxxxx] county court

BETWEEN

[L1882]

Claimant

and

-Barclaycard

Defendant

 

 

PARTICULARS OF CLAIM

 

• The Claimant entered into an agreement (“The Agreement”) with the Defendant on or around 07/11/2007, whereby the Defendant was to advance credit facilities to the Claimant under a running credit account, Account no XXXX-XXXX-XXXX-XXXX ("The Account").

  
  

• 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.

  
  

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

  
  

• 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

 

• 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).

  
  

• 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.

  
  

• The Claimant is accordingly entitled to repayment of the sums wrongly added to the Account.

  
  

The Charges

 

• 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 5% (need to check this!!!) of the amount owed or £5 (whichever was the greatest) by the due date as notified in the monthly statements.
  (d) The default charges applied are listed in detail in schedule two.

  
  

Penalty

 

• 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.

  
  

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

  
  

The Regulations

 

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

  
  

• 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.

  
  

• 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.

  
  

• 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.

  
  

• By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

  
  

• The Defendant wrongly applied Charges to the Account totalling some £383.00 between 18/09/2008 and 22/04/2010 Particulars appear from Schedule 2.

  
  

• 08/04/2015 the Claimant demanded repayment of the sums wrongly applied.

  
  

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

  
  

And the Claimant claims;

(1) A declaration that the sums totalling £383.00 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 £383.00 and interest in restitution of £946.96 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 on the amount claimed (daily rate of £0.02109%) 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 L1882

 

Following this I presume I will need to provide the documents I intend to rely upon? I don't have the credit agreement as my requests for this have come up blank but I do have statements and other documents that were provided under my SAR. Beyond evidencing the charges and also the terms and conditions what other documents am I likely to need? Any and all advice and opinions gratefully received as always.

[SabreSheep]

Hi Sabre - and anybody else willing to advise - I don't think I understand this section:

 

 

 

Any chance you can just explain that (and the sub points) a little?

 

From what I remember that just means that you are not making any statements as to who the burden of proof falls too.

 

Also remember to number your points.

 

You will not be able to submit online with this poc, simply put its too big for online I did mine by post. Remember to keep proof of postage and proof of receipt for everything. Keep a hardcopy of everything and if you can, a scanned copy of everything on your computer. (IT Will help you if you need to put a bundle together later)

[L1882]

Right so Barclays have replied advising once again their response was the final one and I can go to the FOS - no acknowledgement that it was a letter before action.

 

 

So I now need to proceed - nervous much!

 

 

So on the claim - I get that I can't submit the above POC online but can I issue online and send full POC separately?

 

 

I think I'll spend the weekend scanning my documents and getting them in order before I issue the claim - at least I can make sure I've got everything.

[L1882]

PS - I did number them on the word doc, not sure why it dropped them when copied/pasted!

[SabreSheep]

lol no worries.

 

Let slick check it over as well

 

Maybe add somethign about default removal if the charges and interest exceeds the balance? not sure how you would word that

[L1882]

Hopefully slick/dx etc will pop by at some point and offer some additional guidance.

 

 

I don't know whether it is worth worrying about the default - it drops of in 14 months anyway and I'd still have other active defaults at that point - would losing this one make much difference?