hi The Ghost, have you found anything else? thanks

The Ghost - I don't think this is the BArlcays case referred to by Tingy and others earlier in this thread....do you have any other Barclays cases that may apply?

So does anyone (ghost or any other Cagger) have a link with more details of the oft-quoted but not found (certainly not by me at least!) 'Barclays' case??? This has now been quoted on a couple of occasions within this thread but I cannot find any trace of this elsewhere on this site or otherwise. Can anyone provide more infor for the benefit of all on this site? thanks

Hi sequenci - any further thoughts on this matter yet? thanks

billyray - it has NOT reset the clock. the 6 years is from the date of the last payment you make. Selling the debt has absolutely no effect on this. The credit reporting agencies have to remove any defaults markers and traces of the debt after this period of time. It is NOT a new debt and you need to highlight this to all concerned when the time is right. king123 is correct though, you should post this as a new thread. best of luck with getting it resolved.

Hi king123, Most of them had at some point made an offer to consider short settlement but had not made any specific offer that was taken up by me and no specific previous correspondence was tied in to the full and final settlement that was made in the end in each case i.e. no specific agreement was reached before cheques and letter were sent by the 3rd party relating to each of my accounts.

HI horsemad1, The letter looks fine although I am not sure why you even need to mention the following: 1. True copy of original signed executed credit agreement 2. Copy of the executed deed of assignment from Northern Rock 3. A fair processing notice. If you mention these then surely it justs presents them with an avenue to reopen a discussion on whther you owe a debt or not. The salient point is that the debt has been fully and finally settled. End of. Whether there actually was an enforceable debt, etc. is now irrelevant because by their conduct in cashing a 3rd party cheque sent in full and final settlement that was accompanied by a letter with clear and unequivocal terms of settlement should they cash the cheque and then no rejection from them at all or within a resonable period of time, they have demonstrated that the settlement was full and final. Hence no obligation to them from you exists any longer. I appreciate you may be trying a belt and braces approach but in a way you may be weakening or losing some of the strneght of your argument. Maybe not though, others may nnot see it this way. But it seems best to mu mind to keep it simple and focused on the fact that it was a valid full and final settlement and the argument stops there. Either way, I don't think they can do much and are merely making noise to see if they can push you into some action that benefits them. I would just continue to hold firm if I were you. Good luck with it whichever way you choose to respond.

Sequenci - thanks for looking into this further. I agree that Welby v Drake may apply to a 3rd party payment. But have you had any further thoughts on specifically how The Contracts (Rights of Third Parties) Act 1999 might apply in this situation? i.e. does the creditor, by ignoring the terms of the new contract made with the debtor's third party representative (via the letter and cheque, when the cheque is cashed and the offer not rejected in sufficient time or at all), breach the terms of the contract by not recognising full and final settlement, thereby denying the rights of the 3rd party to this new contract (i.e. the original debtor) and therefore be open to legal remedy due to the tenets of The Contracts (Rights of Third Parties) Act 1999? In other words, I could see how Welby v Drake and Bracken v Billinghurst would show that the creditor was committing a fraud against the 3rd party who was party to the new contract with the creditor but is there also an angle for the original debtor to take action as the 3rd party to the new contract?

Linda - without wanting to be overly critical, how what percentage of the proceeds from this book are you donating to CAG? I notice the reviews on Amazon.co.uk all give 5 stars out of 5 and all of the reviewers have only reviewed your books!! Isn't that a bit amateur? At least make it a bit more convincing if you write your own reviews on Amazon, or are the reviewers all members of your fanclub?! In all seriousness, I would be disappointed if you seek to profit from a collation & regurgitation of material contained on this website. Surely the intention is to help indebted people, many of whom have their backs to the wall and are in a desparate situation.....if you have benefitted from this site then why seek to profit from it and the misfortune of others? You could simply provide the advice free and not charge for it.

BD - would love to attend your bash, if for no other reason than to have a valet park my zimmer! You could also try to do a full and final for a very low amount to each of your remaing creditors/their DCAs using the methods we have all discussed within this thread (i.e. via a 3rd party) so that you don't have to wait another 1980 months but only 72 at the most!!

Hi horsemad1, AIC are a joke. They have threatened me in the past a number of times on behalf of various creditors and each time I have called their bluff and they have backed off rather quickly or never been heard from again. I would stand strong on this one and, as you suggest, ask for proof of delivery of their supposed letter. You may also wish to remind them that manufacturing such letter is illegal and that you will happily and promptly report them to the financial ombudsman, OFT, trading standards and if necessary the courts of law if they continue to assert this when it is incorrect. Very likely they will then blame the other DCA or at least state that they will check with them for proof so they can extricate themselves from any suggestion of fraudulent activity on their part. I very much doubt they will proceed any further with it anyway.

Hi Iain - settlement was made in all but one of my cases with the OC, only one DCA. I won't quote the exact percentage but it was small (well below 10% in each case). Most of them had at some point made an offer to consider short settlement but had not made a specific offer that was taken up and tied in to the full and final settlement that was made in the end. There were several rejections and in one case it was rejected but then accepted when a 3rd party cheque and accompanying letter with the terms laid out by the 3rd party were resent shortly after the initial rejection. Some of the OCs have correctly recognised now after a significant amount of post-settlement correspondence that the debt is fully and finally settled and have amended the corresponding entry at the DCA. Some have marked the debt as settled at the DCA but have not removed the default markers and some are still being battled and do not recognise it as of yet. It is important to note that whilst my credit file is still not in great shape (because of course even one default marker is a virtual death knell to a credit record or at least entails that any credit granted will be on very punitive terms), it is much better than before reaching full and final settlements with my former creditors and most importantly, none of then have sought to chase me in court or in any other meaningful way. I very strongly believe that if they had any grounds at all to do so then they would have by now. Although in a worse case scenario I might have to wait a few more years for a clean credit record again, I feel much happier now that the debts are settled and that I cannot be legally forced to make any more payments. I am looking into the ins and outs of having the creditors recognise these settlements fully and in line with the agreed terms so that I can have my credit file cleaned more quickly but the main benefit is that I don't have to stress anymore about debts owed. As a final point, you mention partial settlement - I would not bother with that and go for full and final settlement if I were you, to avoid any possibility that they or any DCAs they pass it on to may chase you in the future for any remaining balance. Good luck with it all.

BD - like I said, very happy that you have found success with your efforts to settle your issues. On the note of moral obligation, I will be honest and state that part of me would of course like to pay as little as possible but despite that I do have a (I believe at least!) fairly high moral code too and was quite prepared for a very long time to pay what I saw as a fair amount. However the credit companies generally do not, in my experience, have any such moral code and any attempts on my part to reach a genuine agreement prior to my final approach merely resulted in them attempting to completely screw me irrespective of the end results for me or for my family. I therefore have very little sympathy for them and know for a fact that they play a numbers game that involves squeezing the most that they can from each consumer. Anyway, best of luck with resolving your remaining issues.

Sequenci - is there a clear legal definition (either statute or case law) that defines a loan or credit card as a bill of exchange or a promissory note or any other negotiable instrument? If so where is this? Or are you referring to the fact that a cheque was used in the full and final settlement? If the latter, then I query how it applies as the contract in question relates to a credit card or loan debt. Not to a cheque. The contract terms were contained and verified in the letter accompanying the cheque, whilst the cheque was used to make payment (to give consideration to the creditor for accepting part payment of the alleged debt as full and final settlement) as per the terms of the contract, not as a contract in itself. By cashing the cheque and by not rejecting the payment and contract offer in sufficient time, the creditor demonstrated by its conduct that the contract was accepted and binding. By then failing to honour this contract, the creditor has created a situation whereby the third party is to have a right to enforce a term of the contract. This may be incorrect logic (if indeed the exclusion noted above does in fact apply to 3rd party settlement by cheque) or untested. Do you know if it is explicitly stated or demonstrated that the exclusion does relate to a contract in which payment is made by a cheque rather than the cheque itself being the contract? In my view, the exclusion applies or is intended to apply to a contract that dictates funds should be transferred from one party to another. Not to a contract that sets out terms but then uses a cheques merely as a method to transfer payment (i.e. confer consideration from the promisee to the promissor). With a cheque there are three parties - the person holding the bank account who gives the cheque (the drawer), the party the cheque is made out to (the payee) and the drawer's bank which promises to pay the money to the payee (the drawee). I believe the Act may in fact have been intending to exclude the drawee from enforcing a right under this Act, as a cheque is generally used as a contractual payment between the payer and payee. I appreciate that it could be argued that as the cheque is referred to in the letter and as the acceptance of full and final settlement is partly contingent upon the cheque not being cashed and returned, that the Act may then be viewed as applicable but is there anything that clearly and beyond doubt illustrates this? Anyone have any thoughts on this?

whilst waiting for sequenci's feedback on the questions I raised, does anyone else out there have specific answers to any of these points? thanks

well my apologies sequenci but also thanks! Appreciate you looking into this. and Victoria, totally agreed, argument is good if it highlights any useful issues! If nothing else, it may simply back up BD's argument about it being best to sit back and let the (ex) creditors chase. I don't necessarily dispute this but just feel it is in everyone's favour if we can thoroughly scrutinise the rationale and relevant tenets of law.

thanks sequenci, any further info, links to case law, etc. is much appreciated

Hi BD, I am not quoting "irrelevant generalities and acadaemic dicussion on the finer points of law", on the contrary, the points I raise are all very valid and relevant. If you don't know the answer then just say "I don't know the answer"!! No shame in that, but don't present what I am saying as (i) advice to panther to intitiate court action or (ii) idiotic and also please don't post as if the strategy you outline is the only one out there. I am very happy for you (genuinely) that you have had success with your debts. For the record, I have had success with having all of my debts (nearly £100k total with numerous creditors) paid off by 3rd party cheque and have had no creditor come after me in any meaningful way despite paying them in this way quite some time ago. Nor do I expect them to, they are perfectly aware of the error of their ways and where it leaves them legally. I won't go into further detail by showing all of the replies from the various creditors but these serve to illustrate my claim here, suffice to say as does their failure to pursue me after such a long period of time. I have even had a number of the entries at the CRAs deleted. Further, the amounts paid have been a fraction (i.e. significantly less than 35-50%) of the amount claimed by them. So I have been extremely successful with my own approach. I don't however claim that this gives me authority to dictate what is the best approach to all on this site nor do I feel that means I have to stop exploring further options or areas of law that relate to my issues. Panther can do whatever he/she wants and doing nothing at this juncture is certainly a very good and workable option but I don't see at all why this has to kill a discussion on where such situations leave one in legally and what options are available to all.

Victoria, Thanks for clarifying your view on estoppel. Whilst on the one hand I share a certain cynicism and do believe there are very strong vested interests at play, I simply do not accept that this means any outcome is pre-determined. There is also a risk of sitting back and accepting the status quo when that is not necessarily the best course of action. I wouldn't claim to speak for the majority of people on here but nor would I expect anyone else to do so. I believe the original intention of this website was actually to better inform consumers of their rights and create a forum for sharing knowledge that relates to this. To simply dismiss a discussion that may well benefit people on this site is to defy the purpose of this website in my opinion. Even if a majority of Caggers have no intention of challenging creditors in court (which is a perfectly acceptable and understandable position) there may well be a number who do and who are not merely rushing to their legal doom based on some thoretical argument constructed in an ivory tower or elsewhere. So I don't buy your argument that legal action is risky, therefore there is no point even discussing it! (which is the net effect of what you have said above). Rahter, a very clear understanding of the relevant points and risks involved can only be for the benefit of all, irrespective of the course of action the decide upon ultimately. Having read a lot on this subject previously and now researched it further, it appears that promissary estoppel comes into play in a bilateral contract and that the case law quoted by secquenci relates to such a situation. Where a 3rd party has created a new contract, I cannot find any releveant case law that indicates where promissary estoppel is a factor. Happy to be corrected on this point if you have any further insights or if anyone else does, which may well be the case. Also, would be great to here some feedback on the point I raised with regard to Contracts (Rights of Third Parties) Act 1999 and how it ties into such a situation. I am sure this must have been discussed before but again, cannot immediately find anything on it. thanks

Hi Victoria - how did you arrive at the inclusion of a reference to a defunct East German political police force, was there a specific point/analogy there that I have missed?? Or are you just making the point that litigation is not straightforward? If the latter, then I completely agree. Beyond the general view that it is easier to win if you are defending, which noone (me included) is disputing, I am not clear where the principle of promissory estoppel applies if it relates to a 3rd party cheque that has been cashed. Where exactly does it apply and for what reasons? Additionally, does anyone have any thoughts about how the Contracts (Rights of Third Parties) Act 1999 ties in to such a situation? As a reminder, this established the general principle under which a third party to a contract could enforce a term in a contract that sought to confer a benefit on the third party, even where the term was intended by the contracting parties to be enforceable by the third party. Under this act, a third party who is expressly identified in the contract (by name, class or description) may now have a direct right against the promisor to enforce a promise which was expressly or impliedly intended by the contracting parties to be enforced by the third party. When they create the right for the third party in the contract, the parties may also reserve expressly the right to vary or rescind it. But, if they do not, then they may not do so without the third party’s consent if: (a) the third party has communicated his assent to the term to the promisor, (b) the promisor is aware that the third party has relied on the term, or © the promisor can reasonably be expected to have foreseen that the third party would rely on the term and the third party has in fact relied on it. So if a third party (i.e. the original debtor) is named in a letter sent to a creditor by a party, in which the terms for cashing a cheque are clearly laid out and the creditor is given the opportunity to reject such terms by returning the cheque, rather than accepting them by its conduct in cashing such cheque, does this not create a direct right against the promisor (the original creditor) to enforce a promise which was expressly or impliedly intended by the contracting parties to be enforced by the third party (that is, full and final settlement of the amount outstanding between original debtor and creditor)? Just wondering if anyone has come across this before or has any view on its applicability? thanks

thanks Secquenci, that is a good point to consider. However, I can see how this principle (of being able to use promissary estoppel as a 'shield but not a sword') might apply between two parties in a bilateral agreement between creditor and debtor to accept a smaller sum in full and final settlement but how would promissary estoppel apply in a case where a creditor had established a new contract with a 3rd party (i.e. by cashing the 3rd party's cheques, which was tendered in full and final settlement (being clearly communicated to the creditor) and which was not clearly rejected by the creditor within e.g. 4 weeks) that superceded the initial contract between the creditor and debtor? Is there any case law that establishes this aspect of promissory estoppel applying to a newer contract between a 3rd party and the promissor that has superceded an initial contract? Or that indicates that such a 3rd party agreement has not been established with the promissor? thanks

Hi BD, I don't fully agree with what you write above. I understand the burden of proof can present a more difficult case for a debtor if they instigate action but this does not necessarily entail that a strong legal case will lose. Of course, as others point out, there are increased risks from such an approach, including significant costs if a case is made but I don't see how that then necessitates a position of not even considering it as a course of action. Most people who participate in this website are not just sheep who will go and initiate reckless legal action on the basis of a few posts. I agree that this site is intended to "prevent creditors unfairly screwing debtors and help debtors when they come up against an intransigent creditor" but this might also include being able to clean one's credit record before a 6 year limit that is arbitrarily set as standard by the credit industry (despite their claims that this is a statutory requirement!) It is up to each individual how they approach this and whilst advising extreme caution in any approach, it is not particularly helpful to label any debate otherwise as an attempt to "encourage/assist/invite/cajole us to write case law". I have not done this and am not clear which part of any of my posts asked anyone to "write case law". Perhaps you could indicate where I have done so. Or do you refer to where I have merely asked if there is any relevant case law pertaining to specific legal points and asked what the rationale is behind any argument one way or the other? Your assertion might suggest that my motives are to persuade others to take reckless action and ruin themselves financially. This is in fact the opposite of the truth but I think it is useful to explore all angles as many on this site (including, surprisingly, a number of experienced Caggers with a great number of posts) preach generalisms and assumed fact that is not strictly true or does not appear to have been specifically investigated in sufficient manner. Whilst not thinking that debating on this site will make me or anyone else a legal expert, I see no harm in driling down to more specific points of law that may affect the position of many on this site. The purpose of this is to identify any grey areas (of which there are many) in particular where one cannot identify a clear legal argument that might be made. Yes, there is always a significant risk in legal action, particularly if you are the claimant but this does not mean it should never be considered and I for one think it is of use to look further into the specific considerations that arise in such situations. Having a bad credit rating for 6 years can also significantly affect people's lives to great detriment in a number of ways so it should not be simply assumed that there is nothing that can be done about it and just sit back to wait out 6 years. That may in fact end up being the reality but if people had taken that attitude in the first place would anyone have ever actually challenged the vailidity of consumer credit agreements, bank charges, PPI, default notices, full and final settlement conditions, etc? Having said all of this, I would also advise extreme caution if one is thinking about making any claim. Any action in court is risky, potentially nerve-wracking and of course potentially very expensive but I would not entirely rule it out without extremely detailed consideration of all the eventualities and information relating to the matter in hand.

thanks Victoria but I have read all of that and quite a lot more with regard to relevant case law. I have yet to read anything that specifically addresses the questions I put to the site in my previous email and not clear at all how the burden of proof changes with regard to the established case law dependent upon being contended by a claimant or a defendant. If a creditor demonstrates by its conduct that it has accepted a 3rd party cheque as full and final settlement (e.g. by cashing the cheque, reading the terms that accompany such cheque, not rejecting at all or for a considerable amount of time (e.g. several weeks or longer), etc.) then how exactly does it differ just because I am a claimant rather than a defendant?

To the knowledge of all Caggers out there, has anyone challenged an OC/DCA in court over their acceptance of such a settlement offer and their subsequent failure to recognise the settlement and to remove any adverse data from the CRAs?? If so, what was the outcome? I appreciate that challenging in court on the basis of a faulty credit agreement or a credit agreement not being supplied is difficult to win if the alleged debtor initiates action as the burden of proof is less but what legal precedents are there in relation to short full and final settlements and such action? Is there any legal precedent to speak of? Incidentally, I am fully aware of the various cases that are oft quoted in respect of this position e.g. Trickett v Billinghurst etc. but am not aware of any cases where a debtor initiated a challenge in relation to a short settlement on a credit card or loan and either won or lost on the basis that they were contending that a short settlement done via 3rd party cheque was a valid full and final settlement. The reason I ask is that various posters on this site reckon it is harder to win if the alleged debtor initiates court action rather than the other way around. What is the specific reasoning behind this assertion? What exactly is it based on? Similarly, Tingy mentioned a while ago that there was a case where Barclays had won on the basis that a cheque sent to them in full and final settlement had included the account number on it hence they argued they had not read the accompanying letter that clearly laid out the terms of full and final settlement and the proviso that the cheque was only to be cashed if it was accepted in consideration of the amount outstanding. I have looked high and low but cannot find trace of such a case anywhere. Can anyone post a link to this case if indeed it exists, either on this site or elsewhere? thanks and look forward to everyone's views on these matters.

so based on your experience Brigadier, if a DCA accepts such an offer in full and final settlement, the OC is generally not going to challenge it?