Full & Final Settlement offer advice on how to clear asap

[panther12]

Quick query has the amount now claimed

by Wetcloths been reduced by the amount of

the original cheque.

IMHO if you produced your letter making

the offer, the cashing of the cheque despite

your clauses as to how it should be used,

and the late reply rejecting it, if this went

to court you would win.

 

Brig.

 

Hi Brig, yes the total claimed has been reduced by the settlement cheque amount. I think Moorcroft must have notified natwest of the payment as it is also reduced on the CRA file. Tempted to send wesclot a copy of the settlement offer letter that I sent moroncroft so they can show it to their client and tell them it’s a matter between their client and moorcroft, and in any event sod all to do with wescock.

[BRIGADIER2JCS]

Hi panther, good idea IMHO Moorcroft

have a the very least acted ''unfairly'' in

applying the the payment as just a basic

payment to the account despite your explicit

instructions as to how it should be handled.

It's my belief this would be well in your favour

if it got to court.

May I suggest a complaint to NatWest referring

to Moorcraps maladministration of the payment.

[the_shadow]

Spot on I think...

 

Just state it was offered in good faith and has been accepted by their agents therefore you consider the matter closed.

 

S.

[panther12]

Will send the below to wescot & a copy of the settlement offer letter which no doubt they will pass on to their client (just in case moorcroft failed to pass it on to them). Will see what comes back.

 

I DO NOT ACKNOWLEDGE ANY DEBT TO YOU OR ANY COMPANY YOU REPRESENT

 

I write in relation to your letter dated 12/08/2011 in which you state that having contacted your client they have advised they have not received an agreed amount from Moorcroft for this account, further stating that you believe the dispute has been resolved.

 

Let me make this perfectly clear as this will be my final communication to you on this matter. This account has been in serious dispute with your client for quite some time, your client being fully aware that a valid dispute exists but nonetheless elected to pass this disputed account to various agents contrary to OfT guidelines, your predecessor being Moorcroft Debt Recovery Ltd. For your perusal I enclose a copy of previous correspondence sent to Moorcroft regarding this disputed account.

 

Notwithstanding the above and in accordance with Moorcroft’s letter dated 06/03/2011, received by me 21/04/2011, to help facilitate full and final closure to this matter your client, via their instructed agent Moorcroft acting with full authority of their client, was presented with my full and final settlement payment proposal without any admission of liability, a copy of which is enclosed.

 

This offer was made in good faith and accepted. I propose that whatever issues your client has in regard to the settlement agreement concluded between the parties is a matter between your client and Moorcroft as I consider this concludes closure to the entirety of all matters relating to this account.

 

I have made my position perfectly clear and trust this clarifies the situation for you.

 

Yours faithfully

[Bigdebtor]

Will send the below to wescot & a copy of the settlement offer letter which no doubt they will pass on to their client (just in case moorcroft failed to pass it on to them). Will see what comes back.

 

PantherGood letter (as are they all from you!). However I would just suggest you should also put all relevant DATES - as to when you wrote, when the cheque was presented (or hit the 3rd party's bank account as paid) and when the DCA initially wrote to you (or/and when you received it) saying they would apply the £5 as a payment on account unless you told them to return it by XX (give date) which was impossible to acheive. Even if they try to wriggle out of the F&F (which I agree with the bold Brigadier you would win in court) they must at least accept they have NO RIGHT to keep the £5 as a payment on account - as you specifically forbade them to do so. I would tell them if it's not resolved in 8 weeks then you'll go to FOS - probably useless but will cost them £500 - and this would still not prevent you going to court (or refusing to make any further payments and defending your position in court - a lot safer than being the claimant). All in all - the balls in their court - if they refuse to acept the £5 - and refuse to return it - then I don't see how you would lose. I would also bet they would NEVER institute court action - but would keep putting new DCA's on to you and trash your credit file as much as possible - but after 6 years the debt would be unenforceable anyway - being statute bared. Good luck! BD

[BRIGADIER2JCS]

Good advice BD

[panther12]

I sent that off earlier but did enclose copies of previous correspondence so they are aware of all the dates. Knowing wescot though I’m sure they will wash their hands of this and pass it back to their client – either way it’s their own time & effort wasted.

Incidentally after posting that letter earlier today, another letter from wescot arrived in today’s post dated the same date (12th) as the one received yesterday. This one saying the account is on hold while they investigate. Can only assume it’s crossed over with their previous letter as I don't think that even wescot have the ability to reply to a letter that was only posted 2 hours previous lol. Be interesting to see what they come back with now they are in possession of the full facts to pass onto the client.

[BRIGADIER2JCS]

Panther they'll tie themselves in

knots, I doubt they understand in the

slightest what's going on:madgrin:

[nodefaults2010]

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.

[victoria_siempre]

Hi nodef

 

I do not claim any expertise in this but the following is a good read: http://www.addleshawgoddard.com/view.asp?content_id=2294&parent_id=1508

 

It mentions concepts of 'accord and satisfaction' and that each case would be considered on its merits as well as issues of timeliness of response in the context of the recipient reasonably separating the offered payment (maybe an automated process) and considering the accompanying terms of the offer.

 

I think much more esteemed colleagues counsel for defence rather than attack because the burden of proof of balance of probabilities shifts, eg why did you do x,y and z if you meant to imply to a reasonable person that you rejected this offer.

 

As always, I stand to be corrected.

 

x

 

v

Edited August 19, 2011 by victoria_siempre
grammar and logic

[nodefaults2010]

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?

[victoria_siempre]

Hi nodef

 

I take your point that case law doesn't change until a new unique case arises. This is beyond my experience and expertise so I'll defer to more experienced colleagues. It's an interesting one though...

 

x

 

v

[panther12]

I’ve not come across any articles where the debtor themselves have instigated legal action but it’s probably as they consider the matter closed so leave it for the creditor to either put up or shut up. I’m not sure about any implications of bringing a case as claimant rather than being the defending party but in my case I will leave that decision to the creditor and happily defend should they wish to pursue it. I have no idea where this will lead but certainly enjoying the experience. If I did it again and the knowledge gained I would perhaps do things differently but nonetheless the creditor has not done themselves any favours.

[BRIGADIER2JCS]

Hi, panther, lots of dangers in being a claimant

not least that the burden of proof is entirely on you,

unless you are fully conversant with procedures, evidence,

and putting your case clearly and concisely and are very

confident of your abilities before a judge, I would not

attempt it.

 

Brig.

[Bigdebtor]

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?

 

nodef

 

I would suggest we go back to the basics of what this site is all about - to prevent creditors unfairly screwing debtors and help debtors when they come up against an intransigent creditor.

 

It is not here to educate us in the law - or to encourage/assist/invite/cajole us to write case law by entering the Lions' Den voluntarily - i.e unnecessarily as a Claimant. Even as a defendant the mantra is "stay out of court as much as possible" - by negotiating or showing the other side they have a hopeless (or very difficult) case.

 

Being pragmatic, panther doesn't have to pay another bean until/unless a court forces him to do so - so why on earth would any sane person volunteer to give the court such an opprtunity by being a claimant - even if the two sides were equally balanced in terms of knowledge, skill and experience? Such is clearly the case when any LIP tries to claim from a big bank or other OC or DCAt?

 

It's very difficult for any LIP to be EITHER claimant or defendant - but at least as a defendant we are there because we have no choice - and the burden of proof is firmly on the other side.

 

Hope this clarifies things?

 

BD

[BRIGADIER2JCS]

Agreed, LIP as a claimant is fraught with problems,

the greatest of which is the burden of proof, a LIP

without resources to carry it through and the possibility

of loosing and subsequent costs are not to be ignored.

[sequenci]

Another to bear in mind is that a key argument in relation to full & final settlements is the doctrine of promissory estoppel, which can only be used in defending an action - it acts as 'a shield, not a sword'. See Combe v Combe

[nodefaults2010]

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.

[nodefaults2010]

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

[victoria_siempre]

Hi nodefault

 

The STASI was both the shield and sword of the Party however litigation in UK/EU is more problematical. I lean towards BD and Seq in that litigation serves lawyers rather than LIPs and CAG's party line is to let the enemy come to one.

 

x

 

v

[nodefaults2010]

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

[victoria_siempre]

Hi nodefault

 

In your preceding point you considered an estoppel as Shield or Sword and I am merely saying it can be an AND when a civil judicial system is corrupted and influenced by powerful commercial interests of whose club the average punter is not a member.

 

Were one to have enough money to argue this 'till the cows come home it might be an interesting academic debate; for most folk visiting here our CAG line is not to initiate litigation; there is a danger of turning a good defence (they accepted the F&F) into a fragile Rankinesque attack.

 

Theory without practice is barren (Uncle Joe).

 

x

 

v

[sequenci]

I have a load of stuff on this that I'll dig out later for you. As you can imagine it's really not that straigt forward.

[Bigdebtor]

nodefIf, as your name implies, you have "no defaults" then perhaps there is a (very weak) case for acting as a claimant if your credit rating is unfairly trashed and you can afford to rsik a negatrive outcome of a court case. For most of us, the trashing happened as soon as we were unable to make a regular contractual payment - so the best course of action thereafter is INACTION - let the sods sue us if they dare. Of course I would always advocate negotiation and a stream of correspondence to either reduce the debt to one which is affordable - or establish that the creditor cannot enforce and pay ZILCH. I have been successful in this tack - in unilaterally re-setting the T&C's of agreement to waive all further interest and charges and settle for somewhere around 35-50% of the current balances (as my signature shows). I have also helped many others go down the same route - as the current six blue blobs show. I therefore stand firmly by the mantra of " 99.99% of lay people should NEVER act as a Claimant" - as the odds are stacked against them - and there is a very good chance the creditor won't go to court either even then - but will instead accept a token payment - say £1 or £5 pe rmonth. Getting away from irrelevant generalities and acadaemic dicussion on the finer ppoints of law and back to the particular relevance of this thread, Panther has NOTHING to lose by doing NOTHING. As I said, only an idiot would voluntarily give a court the chance to force further payments. Let the creditors claim if they have the appetite to do so - but the debtors certainly should not.BD

[nodefaults2010]

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