Orge vs BC **WON**

[slick132]

Hi Orge,

 

Given that the date for the Defence is 12th Feb, I can see no reason for them not defending in the normal time.

 

My response would be :-

 

I refer to your request for a 28 day extension for the filing of your defence.

 

However, as you still have two weeks to defend, I see no need for such an extension and trust you will defend by the existing deadline of 12th February.

 

I am, of course willing to consider an offer to settle on the basis of the Schedule of Charges submitted with my Claim, thereby avoiding the need to trouble the court system further in this matter.

 

Please keep further communication in writing by letter or use my email address - orge@webmail.com

 

[SabreSheep]

What is happening is that they are playing for time.

IF they file a defense they have to pay a fee.

IF you agree to an extension it grants them additional time to do that defense. It is also a test of your resolve. IT also allows them TIME TO BUY BACK THE DEBT to allow offset.

 

Slicks draft is good

[slick132]

I don't think Barclays Litigation are particularly concerned with the costs of litigation.

 

There's no fee to pay for filing their defence although they are obviously paying their legal staff to run cases.

 

They will always wait for you file a claim if you want restitutionary interest and they'll make you jump through various hoops before starting to negotiate. In doing this, they will spot a claimant who is too eager to settle and may get away with paying a lower settlement.

 

[orge]

Gonna send through your response shortly.

 

As an aside, I am also looking into fees on my mortgage for the same period and I'm gonna try to hammer them for these as well.

New thread started here:

http://www.consumeractiongroup.co.uk/forum/showthread.php?440434-Orge-Vs-Barclays-Woolwich-Arrears-Charges&p=4684210#post4684210

 

J

[orge]

They are following the script again.

 

Have received an offer for the charges within the 6 year period + statutory interest + my claim fee. They would then pay me the total less the outstanding balance with Lowell. This would leave me about £300 worse off than when I raised the claim and theres no mention of removing the default...

 

Er, no deal I reckon!

 

J

 

P.S. Ah bless, she's sent this at 7.30pm. Must be a lot of claims to get through atm!

[slick132]

A polite refusal is what I'd send :-

 

Dear Ms xx,

 

Thank you for your email of xxdate but your offer falls well-short of the amount claimed.

 

For this reason, I must decline the offer and will continue the court claim.

 

I require payment of the full amount claimed and the removal of adverse credit data related to this account.

 

Yours sincerely,

 

[orge]

Response was sent on Friday. Not heard anything back from her yet.

 

J

[slick132]

Hi Orge,

 

Response was sent on Friday. Not heard anything back from her yet.

 

LoL !! Today is only Monday !!

 

Wait for them to reply and then update us. Don't appear desperate to conclude the claim or Barclays Litigation may see this as weakness and try to take advantage.

 

[orge]

Heh!

Was wondering the other days obout the default that Lowell have also placed on my file in regards to this debt? Assuming I win and they agree to removal, would Barclays chase this up with Lowell or is there something else I would have to do?

 

Thanks,

 

J

[slick132]

If you seek the removal of all adverse CRA data, it will be just that - removal of defaults posted by BC or subsequent DCA's, removal of data about the a/c being in arrears, etc.

 

[orge]

Ah cool.

Are there any recommended threads for court bundles? I started looking through this one, but it seems very old:

http://www.consumeractiongroup.co.uk/forum/showthread.php?94442

 

Thanks,

 

J

 

P.s. I met a barrister at the weekend. Said he would be happy to help out if I need any assistance with a court hearing.

[orge]

Barclays have given me an increased offer and are asking for more time to file their defence.

Will respond to them this evening.

 

Thanks,

 

J

[SabreSheep]

Barclays have given me an increased offer and are asking for more time to file their defence.

Will respond to them this evening.

 

Thanks,

 

J

 

Same reply as last time i think.

[orge]

Barclays have filed their defence today:

 

1. Barclaycard is a trading division of Barclays Bank PLC and not a legal entity in its own right.

 

2. To the extent it is alleged that the Claimant incurred charges on the Claimant's account for unauthorised borrowings (whether late payment fees, exceeding authorised credit limit fees, or any other such fees (the "Charges")), the Defendant puts the Claimant to strict proof of each charge and the date thereof, and whether or not the total sum claimed takes into account and/or gives credit for any sum that may have been refunded to the Claimant's account by the Defendant.

 

3. The Defendant's standard terms and conditions (the "Terms"), which the Claimant accepted upon opening the account, entitle the Defendant to debit the Charges from customer accounts upon certain events (including, but not limited to, exceeding account credit limits and/or unauthorised borrowing and/or failing to make sufficient monthly payments to reduce the account balance by the required date).

 

4. The Terms gave the Claimant a fair and transparent view of the obligations and entitlements set out above, including the basis on which the Defendant would be entitled to debit the Charges from the Claimant's account.

 

5. It is the responsibility of the account holder to properly monitor their account so as to ensure compliance with the Terms and avoid the events which trigger the Charges.

 

6. If, and to the extent it is the Claimant's case that, the failure to make monthly payments and/or failure to remain within the agreed credit limit constituted a breach of the Terms, and that the contractual entitlement to debit the Charges from the Claimant's account constitutes a liquidated damages clause, the same is denied. The Charges applied to the Claimant's account were payments that the Claimant agreed to make upon the events described above by reason of the Terms. Accordingly, it is denied that the Charges or any such charges constitute unfair and/ or unreasonable charges, and it is denied that the legal principles governing the enforceability of liquidated damages clauses apply or are relevant to the Charges, as alleged by the Claimant; or at all, and/ or that the charges are otherwise unenforceable.

 

7. Further or alternatively, it is denied that any such Charges constitute unlawful penalty charges or are in breach of the Unfair Terms in Consumer Contracts Regulations 1999 ("the Regulations") (particularly, but without limitation to, paragraph 1(e) of Schedule 2), or indeed any other provision. It is denied that the Charges are unfair within paragraph 5 of the Regulations.

 

8. Further or alternatively, it is denied that any such Charges are "not binding" under paragraph 8 of the Regulations or are not core terms under paragraph 6 of the Regulations.

 

9. Further or alternatively, without prejudice to the matters pleaded above, if the Claimant's failure to make sufficient account payments by the required date and/or to remain within pre-agreed credit limits constituted a breach of the Terms, the Defendant avers that the Charges were nonetheless valid and enforceable.

 

10. It is further denied that the Charges were unlawfully debited from the Claimant's account. It is averred that the said charges and interest are and remain lawful and enforceable and that the Defendant was entitled to debit the same.

 

11. Accordingly, it is averred that the Charges are legally enforceable and the Defendant was entitled to debit the Charges from the Claimant's account.

 

12. The Defendant denies that it is liable to the Claimant for the sums claimed and interest, as pleaded or at all. In the alternative if (which is denied) the said charges are unenforceable and constituted a breach of contract by the Defendant, those charges which were applied to the account prior to xxx are not recoverable because they are time-barred under the terms of the Limitation Act 1980 in that more than six years have elapsed since the accrual of the cause of action.

 

13. In the alternative, and without prejudice to matters stated above, if (which is denied) the said Charges or any part thereof are unlawful or unenforceable as alleged by the Claimant or at all, and the Charges were a consequence of the breach of contract by the Claimant, the Defendant has nonetheless suffered loss and damage as a consequence of such breach of contract by failing to make monthly payments and/or failing to remain within the agreed credit limit. Accordingly, in the event that the Defendant is unable to rely on its express entitlement to enforce the Charges as set out above, it will seek to recover to the extent necessary such loss and damage as it actually suffered, which will not necessarily be limited to the value of the said Charges, and the Defendant seeks to set off such sums against any liability owed hereunder to the Claimant.

 

14. As to the claim for interest:

 

a. The Terms provide for a rate of interest to be applied to outstanding balances on the Claimant's account, which the Claimant accepted upon opening the account. Accordingly, the Defendant was contractually entitled to apply interest to the outstanding balances on the Claimant's account and the Claimant is not entitled to recover such interest from the Defendant, whether in the sum claimed or at all.

 

b. If it be so alleged, it is denied that the sum of £xxx represents interest applied by the Defendant solely on the Charges incurred by the Claimant It is averred that interest applied to the Claimant's account was calculated on the outstanding balances on the account from time to time, including (but not limited to) the Charges applied to the Claimant's account.

 

c. In the premises, it is denied that the Claimant is entitled to recover interest, whether in the sum claimed or at all.

 

15. Further or alternatively, if, which is denied, the Claimant is entitled to damages and interest thereon, there is no basis in contract or common law for the interest rate claimed by the Claimant to the sums allegedly owed. The Defendant avers that whilst the Court has discretion as to the level of any interest award, there are no grounds for the Court to depart from the principle that interest on any judgment, if awarded, should be at the current judgment rate.

 

STATEMENT OF TRUTH I believe that the facts stated above are true. I am duly authorised by Barclays Bank PLC to sign this statement on its behalf.

[orge]

Have just sent an email declining their offer.

 

Dear xxx,

 

I refer to your offer of settlement dated the xxx. Unfortunately, I must decline your offer as it still falls well short of the amount claimed. Additionally, the CRA data you are offering to remove is not inclusive of the default, which was registered 6 months after the account was closed on xxx. Finally, you have no right to set off an amount in respect of an account which you have sold to a third party. The amount you repay to me will be used to clear debts owed to creditors on a pro-rata basis at my discretion.

 

With these points in mind, I remain open to the discussion of settlement offers but my claim will continue. I note that you have now filed your defence with the court.

 

Yours Sincerely,

 

[SabreSheep]

template defense, read that one before

 

carry on with the process

[orge]

Yeah, it's a word for word copy of Shelley's from 2 years ago! They could at least have put a bit of effort into it considering they were asking for an extra month...

 

J

[SabreSheep]

yup same as mine as well lol.

 

They have not grasped the statue barred argument, they have ignored the fact the interest you claimed is interest in restitution and not related to any term of contract. It really is a bad template.

 

At least Natpest put a bit more thought into their defense with me

[orge]

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

[SabreSheep]

NO fee anymore for directions questionnaire

 

Sounds correct to me

[orge]

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

[slick132]

Hi Orge,

 

You can check with the court a week after the banks DQ should be filed. This gives the court a few days to process the paperwork.

 

But you should assume the DQ will be filed and the next contact will be about mediation.

 

Once you know they've filed the DQ, you could contact Barclays Litigation asking them if they would like to consider settling your claim based on your SoC to:-

 

1. Avoid further use of the court's time and resources.

 

2. Avoid further court costs and legal fees being incurred on the case.

 

[orge]

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

[orge]

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

[orge]

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