Full & Final Settlement offer advice on how to clear asap

[Bigdebtor]

NDF

 

I mostly agree - but since no sane debtor would pay any more after an agreed F&F then no claim needs to be made against DCA. It would be for the (insane?) OC or DCA to TRY to claim more - and "good luck" to them!

 

Only (small) downside I see is the CRA's would still trash the debtor's credit file for the next 6 years - but post of us are very trashed as it is.

 

BD

[BRIGADIER2JCS]

The point here is that given for instance a DCA has decided that a debt assigned

by simple assignment for collection, no court action can be taken without permission of

or actually by the original creditor,so must the same be applicable to full and final offers

made by a debtor to a DCA in cases of simple assignment to collect:madgrin:

[BRIGADIER2JCS]

I take it the DMP is taking fees?

You need to take one debt at a time, remove from DMP., then

assess what you think is reasonable as F&F and make your offer.

Start low if needed, to give your self negotiating room.

Also beware when agreeing F&F make sure it is on your terms,

ie that the DCA will not sell or assign any remaining balance to

a third party for collection, these thing are known to reappear

at a later date.

 

Brig.

[Bigdebtor]

The point here is that given for instance a DCA has decided that a debt assigned

by simple assignment for collection, no court action can be taken without permission of

or actually by the original creditor,so must the same be applicable to full and final offers

made by a debtor to a DCA in cases of simple assignment to collect:madgrin:

 

Are you saying the DCA has NO AUTHORITY to negotiate F&F's? If so, then I have done many unauthorised F&F deals over the last 4-5 years! No OC ha syet cottoned on to the fact these were "unauthorised" and my credit file ha sbeen updated to show the F&F deals and the accounts mrked "settled" with £0 showing as outstanding balances.

 

I stand by my above post. If the OC gives your details to a DCA then he must abide by any deal done by the DCA - and could only sue the DCA for negligence etc. - but not come after the debtor just because the DCA screwed up.

 

BD

[BRIGADIER2JCS]

Only if the debt has been place (assigned) for collection only on a commission basis

the DCA does not own the debt, cannot initiate court action or change the context

of the contract they have which will give the DCA certain leeway on negotiating

repayments so of the larger creditors will require the DCA to seek advice from them.

[nodefaults2010]

I am sure that in many instances the DCA and OC do liaise on any offers etc. But if the DCA does accept a full and final settlement offer then from a contractual point of view I am still not clear where a debtor would stand. Has the DCA illegally accepted the payment but the debt is still outstanding? If so can the DCA remedy this simply by repaying the debtor?

 

Alternatively, is this actually binding on the OC because they appointed the DCA to represent them so have legitimised actions on their behalf? Even though an OC may not have explicitly appointed a DCA to accept full and final settlements, as opposed to given them a general remit to collect a debt, this conduct could potentially be seen to legitimise any acceptance by a DCA of a full and final settlement. Would be interesting to get the views of a subject matter expert on contract law to see where a debtor would stand in such a situation.

 

Can anyone on here quote relevant case law for this or similar instances?

[BRIGADIER2JCS]

I would sincerely doubt there is any case law on this as

it is tenuous because we cannot know what agreements exist

between the DCA and the creditor as this would be deemed

confidential and commercially sensitive.

I am aware from cases that I have dealt with of correspondence

to the debtor having made an F&F offer referring the matter

to the creditor.

 

I cannot see the that which ever course is taken that there

is any disadvantage to the debtor other than a short delay in acceptance

or refusal.

As said the contracts between DCA's and Creditors regarding debts

assigned for collection only are not in the public domain.

[nodefaults2010]

the disadvantafge I can see is if a DCA accepts an offer in full and final settlement but the OC challenges this e.g. 4-8 weeks later. Where would the debtor stand then, if a 3rd party cheque sent with letter stipultating only to be cashed in full and final settlement had been cashed by the DCA bu thten challenged significantly after the fact by the OC?

[BRIGADIER2JCS]

Hypothetical I think in years of dealing with other peoples

debt problems I have never come across this situation,in my opinion

if the scenario you project the DCA and the creditor would sort this out

between themselves as I said the arrangements between them

are commercially sensitive.

[nodefaults2010]

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?

[BRIGADIER2JCS]

They may well challenge it with the DCA cut commission maybe.

As I said I have never seen it happen yet.

[Kayyak]

I too am having problems now with a DCA who cashed my F&F 3rd party cheque. It was accompanied with a 2nd offer letter.

Day 1 - I posted offer letter and cheque

Day 2 - received by DCA

Day 4 - Cheque cleared from 3rd parties account and letter sent by DCA confirming not accepted.

Day 5/6 - their letter received by me

 

Have not heard from them for nearly a year since until recently so I followed up with a reply letter explaining they cashed the cheque, etc. They have responded with the Fry v Inland Revenue case as their defence and that their cheques and letters are separated (just like the Inland Revenue - but I sent it to a named person)

 

Not sure how I stand now as they did respond on day 4, refusing to accept as F&F? - any thoughts appreciated.

 

As a final straw to get rid of them, I am considering to make them a further offer just to come to an acceptable arrangement (although don't want to go back on what I have done previously as I may shoot myself in the foot).

[Bigdebtor]

Did you admit you got the previous letter pretty promptly? If so, when did you do so and what exactly did you say then?

 

It's possible their initial prompt action gave them the right to accept the cheque just as payment on account and not as F&F.

 

If so, then I would try a further (very small) 3rd party cheque to be accepted as F&F - but this time ensure NOTHING on the cheque links it to your account - ONLY the accompanying letter does so (ensure your letter has all the necessary cheque details - sort code, bank acct no, cheque serial no etc. ) - so they will have NO EXCUSE if they DO bank this 2nd one "in error".

 

Good luck!

 

BD

 

BD

[Kayyak]

Did you admit you got the previous letter pretty promptly? If so, when did you do so and what exactly did you say then?

 

It's possible their initial prompt action gave them the right to accept the cheque just as payment on account and not as F&F.

 

BD

 

BD

 

I did not respond to their letter because 2 weeks later I received another letter explaining that they were seeking advice from the OC. I thougt this was to do with the F&F. Not so, as 9 months later (after no communications from them) I received a letter out of the blue stating the DN was correct and pay up, no mention of the F&F. This is when I responded with the letter stating they accepted F&F and now they say that the F&F was refused even though the 3rd party cheque has cleared.

I would try to negotiate another settlement but with their agreement this time, but don't want to come accross that what I done was not correct and not sure how to word the letter as such.

[BRIGADIER2JCS]

Before doing anything get an up to date statement of the

account so you can see how that cheque was applied to the account

and what the balance is now.

[Kayyak]

Before doing anything get an up to date statement of the

account so you can see how that cheque was applied to the account

and what the balance is now.

 

Their latest letter confirms the balance outstanding which has been reduced with the F&F cheque. They have applied it as a payment.

[BRIGADIER2JCS]

Good, it's just me not being very trusting of this lot.

Try starting at 15-20% of the outstanding balance,

and wait to see the response:madgrin:

[panther12]

Just posting an update on this ongoing saga. Following the letter ping-pong with Moorcroft, they have now sent a letter saying Moorcroft is no longer responsible for collection as they have returned the account to their client. Followed by a letter from Wescot introducing themselves as the new instructed collectors to collect on behalf of their client.

 

This is perhaps where the fun starts as I doubt very much Natwest had any idea of the F&F that Moorcroft accepted on their clients behalf. Will be interesting to see what happens after I fire back a letter to Wescot advising them of the fact the account is settled in full following the acceptance of their predecessor to the T&C’s and third party cheque.

[BRIGADIER2JCS]

I can imagine the confusion at

Westcott they seem to have great

difficulty reading simple things this

will blow gaskets:madgrin:

[panther12]

Was thinking something along these lines should stir things up a bit:

 

To whom it may concern

 

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

 

I am in receipt of your letter dated 02/08/2011, received by me 05/08/2011, the contents therein are noted and I respond to the same. I am somewhat bemused by the contents of your letter as this matter has been concluded in its entirety between the parties via your client’s previously instructed agent, Moorcroft Debt Collection Ltd.

 

In summary:

 

On 21 April 2011 I received a letter from your client’s instructed agent, Moorcroft, dated 06 March 2011. In response thereto I sent a letter dated 22 April 2011 which contained my offer to settle this account (enclosing third party cheque payment) in accordance with the contents of their letter dated 06 March 2011.

 

Moorcroft received said third party cheque payment attached to the letter of terms said cheque was tendered by on 03 May 2011 pursuant to their letter dated 06 March 2011, received by me 21 April 2011, which contained their intention to accept a sum substantially less than that to which was claimed by your client, further, the contents therein clearly state the authority granted to Moorcroft by your client to offer me a substantial discount from the outstanding balance claimed, if an agreeable amount was paid to them within the next 14 days.

 

As stated above, said cheque payment and covering letter of terms thereto was received by Moorcroft on 03 May 2011, said cheque cleared from third party payer’s account on 09 May 2011, therefore, clearly Moorcroft held onto said cheque for a few days before they presented the same for payment, said cheque was duly honoured, at no point prior to Moorcroft presenting of said cheque for payment did they serve any notice upon me to inform that they did not accept the terms thereof; nor did they inform me that they were only willing to accept said cheque payment as a partial payment or as a payment on account only. Moorcroft’s conduct in presenting said cheque payment into the account constituted a clear and unequivocal acceptance (by conduct) of the terms said cheque was tendered by.

 

Further, said offer was made without any admission of liability to the amount claimed and also contained a clause to return said cheque within seven (7) days if they were not in agreement to the terms of settlement and therefore conduct has bound them to the settlement agreement, said cheque also containing the clause not to be used for any other purpose.

 

I respectfully request that you inform your client of their obligations to said settlement agreement concluded between the parties and return the file on this account to you client, your written confirmation as to the same will be required by return, since I consider this concludes closure to the entirety of all matters relating to this account.

 

Thank you in advance for your attention to this communication.

 

Yours faithfully

[BRIGADIER2JCS]

That's going to put the cat among the rats I fancy. Ii's

clear and concise IMO.

Send it RD to both parties iI would suggest.

 

Brig.

[Bigdebtor]

I wish I was a fly on both DCA and OC's walls when they read this!

 

Well done! I've hit your star cos you are one!

 

BD

[panther12]

I wish I was a fly on both DCA and OC's walls when they read this!

 

Well done! I've hit your star cos you are one!

 

BD

 

Cheers BD, yes will send a copy of the contents of letter to moorcroft, probably best leave wescots addy out of the letter to leave them guessing as to who the client passed it onto. Can’t wait for the next instalment lol.

[panther12]

Received a reply from Wescot. Basically saying that they have contacted their client who advised they have not received an agreed settlement amount from Moorcroft for the account and that the last payment received was for £5 on the 18/05/11. Wessies say they believe the dispute has now been resolved, spouting their usual twaddle about how to pay.

 

Not sure what to reply back with yet.

[BRIGADIER2JCS]

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.