HFC Marbles Card Charges Reclaiming

[lookinforinfo]

A full and final settlement is an agreement made whereby all parties involved

in the transaction agree that no further dealings will occur on that account.

IE in your case, that even if you win the lottery, the bank will never pursue

you for the outstanding amount; and you will not ask for a further reduction

should you later find for example [as you did] that you could have reclaimed the bank charges.

I am surprised that the bank agreed to reopen dealings on the account after

having agreed the matter was closed. But having done so, they would

certainly not want to repay you any money until the debt written off had been repaid.

[tifo]

What is the whole point of a settlement then?

 

What indeed. The settlement was just as binding on you as on the bank. That was supposed to be the end of the matter.

 

But just because the amount was written off does not mean that the debt no longer exists. It would have been transferred to a ledger and treated as a loss to the bank. So once you decidd to resurrect the debt to reclaim the

charges, so they resurrected the debt too, in order to try and get the debt

repaid.

 

Yes, but there is no debt outstanding. Written off is meant to not exist anymore.

 

It is binding on the bank as well. The fact that people were not claiming charges back then does not make them lawful at that time.

 

I am claiming much the same as anyone else who has settled an account in full and later asked for charges back. If the bank said you still owe us money i'm sure they'd pe pee'd off as well.

 

Then there is the compensation which i am also losing as it is going towards the concession. It is being paid for a mistake that HFC made after the settlement and should play no part in it.

 

If you owe me a debt of £1,000 and we agree that you pay £500 to clear it, would you allow me to ask you for the £500 i am writing off at a later stage or would you show me two fingers?

[tifo]

A full and final settlement is an agreement made whereby all parties involved

in the transaction agree that no further dealings will occur on that account.

IE in your case, that even if you win the lottery, the bank will never pursue

you for the outstanding amount; and you will not ask for a further reduction

should you later find for example [as you did] that you could have reclaimed the bank charges.

I am surprised that the bank agreed to reopen dealings on the account after

having agreed the matter was closed. But having done so, they would

certainly not want to repay you any money until the debt written off had been repaid.

 

OK. i get that.

 

so when they said they took the charges into account at the time, they really did not as the default entries did not reflect this. Therefore, do i have a case with them for incorrectly maintaining defaults?

 

then, when they said it is a 30/70 split and they also took the charges into account, it was not a 30% settlement but 75% so do i have a case against them for misleading and lying to me? Are they allowed to mislead customers like this?

 

then there are the interest figures which they have only worked out during the period of the claim when most people get this up to the current date of settlement. If this was changed, i would actually be owed money from them even after them keeping charges and some interest towards the concession.

 

The fact is they did not take charges into account at the time but are now putting them towards the concession, meaning they have misled me in letters when they refused to make a refund by saying they already included charges in the settlement at 30%.

[tifo]

should i take it to court to settle what a full and final settlement really means and also to ask for £1000 + value of default (£1988) as compensation for a default wrongly maintained?

[gizmo111]

should i take it to court to settle what a full and final settlement really means and also to ask for £1000 + value of default (£1988) as compensation for a default wrongly maintained?

 

A full and final settlement is binding on both sides.

 

Your core debt on the £2k balance was £900.

You paid £600.

You have therefore gained £300 on the settlement.

You did default on the agreement - the only thing I could see as being questioned is the amount you defaulted on - therefore IMO any defaulted balance over £900 on your credit file can be disputed.

[lookinforinfo]

Even though a debt may become unenforceable, it does not mean that the debt does not exist.

And it is pretty similar when debts are written off. Although you will not be pursued for it, and there will be no mention made of it, the debt still exists. The only way to clear a debt is to pay it off.

Because banks use the double entry book keeping system, when they write off a debt it would show on your account as being a nil balance. However as

the amount was not paid off, to balance their books, the bank transfer the

written off debt to an internal account of their own. So your debt has always

been registered either at your branch, or Head Office and would remain on their books until paid off, if ever.

 

As for your questions about whether the bank took the charges into account or not, it would be impossible to say with 100% accuracy as none of us were there when the decision was made.

 

I am bound to say that I would be surprised if they had given you such a large reduction without taking into account the charges.

But on the subject of charges, they are stated in their T&Cs, so they feel

justified in claiming them, regardless to the question of their lawfulness.

As you were not reclaiming your charges and people then rarely did, they would have felt entitled to declare them as part of the debt. So they were not wrong to claim thay were giving you a 30/70 split.

 

Bear in mind that it was not until 2005/2006 before the charges were seriously challenged, so you have to take that into consideration when

thinking of deception on their part.

[tifo]

A full and final settlement is binding on both sides.

 

Your core debt on the £2k balance was £900.

You paid £600.

You have therefore gained £300 on the settlement.

You did default on the agreement - the only thing I could see as being questioned is the amount you defaulted on - therefore IMO any defaulted balance over £900 on your credit file can be disputed.

 

Yes, i see that. But as i paid £600 out of the core balance of £807 (they've taken some interest off as well now), the defaulted balance should have been £207, which is what the FOS want to pay them from my £300 compensation.

 

In actual fact, the defaulted balance was £1400 (£2000 - £600) so the charges were included in this even though they say they weren't (now they say, not at the time).

 

I was told it was a 30% settlement and this is what i agreed. I did not agree any other ratio. Therefore they misled me. So i should have really paid £240 as 30% of the core balance of £807. I want the difference back.

 

Then there is the default for which i have received compensation. At court, i would ask for £2988 (£1000 + 1988 defaulted) as per common law precedant. I would also question the other two defaults as you state above.

 

Then the interest they have given back now is not upto the current date but only for the claim period. The rate is also 14.88% when it should be 15.89% as on the statements from that time.

 

So, by my calculations and believing everything they say, i am due £1044 charges, £1151 interest at 15.89% and £2988 for the default. Totals £5183.

 

Then there is the other two defaults which apparently now were also wrong all this time. Lets say £2400 for each and thats £4800.

 

Total claim nearly £10,000, split in defaults and charges and interest of course.

 

So if they take £1400 from that (and they cannot possibly ask for more than that) i am due £8600 which should keep all of us happy.

 

I haven't included the PPI which i am claiming they missold to me which could be another £1000.

[tifo]

Because banks use the double entry book keeping system, when they write off a debt it would show on your account as being a nil balance. However as the amount was not paid off, to balance their books, the bank transfer the written off debt to an internal account of their own. So your debt has always been registered either at your branch, or Head Office and would remain on their books until paid off, if ever.

 

As for your questions about whether the bank took the charges into account or not, it would be impossible to say with 100% accuracy as none of us were there when the decision was made.

 

So, double entry means written off amounts are not really written off and the debt exists even though the customer is told otherwise?

 

Not taking the pee here, but if i had accepted their offer of £500 when they made it for the £1044 charges, would i be able to claim the £544 later on by stating i also use a double entry system and that even though i accepted the £500 as full and final settlement, £544 still shows as due on my books as a loss to me?

 

Doesn't an agreement work both ways?

 

They say now they took charges into account but this has never been reflected in the defaults they maintained, which were for the full amount.

 

The charges have been taken into account only now against the balance they wrote off because they would not have to pay me then.

 

But charges + interest came to £2700 but they are saying £1250 as they are not applying interest up to settlement today but only up to settlement in 2004.

 

By normal rules, they should pay me either £2700 in interest and charges now or £1600 at the stat rate and take the £1400 off to keep themselves and the FOS happy.

 

Then they should pay me the £300 compensation the FOS have awarded me as i would not owe them anything, even in double book keeping.

 

Mind you, i would forego the £300 from FOS or try and get it increased (as the default will always show wrong info until it comes off, because the update shows as settled in Jan 2007 when it was actually June 2004 but this can now not be changed) and claim £2988 at court for the default as per case law.

[tifo]

i was just talking to Trading Standards about a different matter today and mentioned this HFC issue.

 

the adviser could not undertand why the FOS would take into account the concession made as it was written off under an agreement between us two and to ask the FOS where in their guidelines/law it says they have to pay money towards such a concession.

[gizmo111]

You put this in front of a judge and he will think you got a good deal. You've paid £600 of a debt of £900, and the rest was written off. There is no way you will get all that money for the default, judges aren't really keen to remove defaults and it is a very hit and miss area - what precedent are you refering to?

 

What you are asking for is not reasonable IMO and I can't see a judge awarding it.

[tifo]

what precedent are you refering to?

kpohraror v woolwich building society [1996] C.L.C. 510

 

The decision they came to was the amount of the default plus £1,000. So if the default recorded was £100, then your claim would be for £1,100.

The advantage of the kpohraror ruling is all you have to prove is the existence of the incorrect entry. Lord Justice Evans ruled:

 

It is abundantly clear, in my judgment, that history has changed the social factors which moulded the rule in the nineteenth century. It is not only a tradesman of whom it can be said that the refusal to meet his cheque is 'so obviously injurious to his credit' that he should 'recover, without allegation of special damage, reasonable compensation for the injury done to his credit'(per Lord Birkenhead LC (above)). The credit rating of individuals is as important for their personal transactions, including mortgages and hire purchase as well as banking facilities, as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in holding that what is in effect a presumption of some damage arises in every case, in so far as this is a presumption of fact.

So the question becomes whether the authorities compel the conclusion as a matter of law that the presumption cannot extend beyond the category of trader. In my judgment, they do not.

[tifo]

anyone got any more advice for me as the FOS will review the decision but i need more ammunition?

 

i need to concentrate on what exactly a settlement really means to a consumer (forget double entry) and how the bank explains this.

 

also, they are saying they took charges into account at the time in 2004 but this is not reflected anywhere and i was not told this. The crucial bit i was told it was a 30% settlement and if not i have been lied to.

 

but they are taking the charges and some interest from the write off now at this time.

[lookinforinfo]

A full and final settlement means exactly the same to a consumer as a company. It is final-finished- at an end-no more discussion or negotiation- the figure has been agreed by both parties.

You breached that agreement by reclaiming your charges. You can hardly be surprised therefore that the bank would bring up the subject of the amount written off. Bear in mind that banks are responsible to their shareholders and

so every transaction must be crystal clear as accountants and auditors will

check them. Thus when an amount is written off, although that effectively means to you that the debt no longer exists, the bank still has to account

for that money [other wise you could have situations where the bank manager would stick the amount written off into his pocket to balance the

books]. So what they do is to transfer the amount written off to another account -possibly named "Accounts Written Off" so it is clear where the

debt has gone. You seem to think that it is ok for you to renegotiate the

agreement but the bank cannot.

 

The bank were under no compunction to explain to you at the time how they

worked out what figure they would accept in settlement of your debt even if

you had asked them. And whether or not they included the charges in their calculations, as the debt stood at the time, you did get 70% off it. You have no way of proving if they or didn't take the charges into account so it is

not something that you can say to the FOS.

And the FOS have already taken the view that they did take the charges into account, and all who expressed an opinion on this thread broadly agreed

as well.

Your best bet would be to concentrate on the default issues as Gizmo said.

 

I am grateful for the example you provided as it is not one I have seen-

kpohraror v woolwich building society [1996] C.L.C. 510- and I still have not seen it as it doesn't appear to be on the net. Strange, as it would appear to be

pretty groundbreaking-are you sure the spelling is correct?

[tifo]

A full and final settlement means exactly the same to a consumer as a company. It is final-finished- at an end-no more discussion or negotiation- the figure has been agreed by both parties.

 

I am grateful for the example you provided as it is not one I have seen-

kpohraror v woolwich building society [1996] C.L.C. 510- and I still have not seen it as it doesn't appear to be on the net. Strange, as it would appear to be pretty groundbreaking-are you sure the spelling is correct?

 

I am asking much the same as most people do when they ask for charges after clearing off an account in full, whether they paid a % or the whole amount, it has been fully paid off. Now if the bank told them no, they would also be pee'd off as many are and in the end they do get their refund.

 

I can prove they did not take charges into account at the time but are doing so now, and the % i paid is crucial as they have an obligation to be honest and truthful. The FOS are ignoring all i have said.

 

I have the above case as a PDF file if you would it, and maybe you can then advice me whether i should take the default matter to court based on this precedent. You cannot find it on the net for some reason but i got it from another member on here.

 

I have it as kpohraror v woolwich building society [1996] 4 All ER 119 which is the same case.

[tifo]

I've made charges, PPI and default compensation claims with my ex - credit card providers.

 

All these complaints were made through the Ombudsman and after waiting 6 months for a decision, i have some offers.

 

But the banks want to pay the DCA my charges, PPI and interest refund as well as compensation in a few cases.

 

I have argued my point with the Ombudsman but they state that the money should go to the DCA as i haven't paid it to the bank. But i am saying i owe nothing to the bank now and the DCA is a third party to this. Also, that i want the money to be able to use it as a settlement amount with the DCA.

 

After nearly a year of fighting and argueing with the bank and FOS, i don't want all the refunds to go to the DCA as i would get nothing.

 

None of the DCA's have complied with a s.78 request and have been in default and offence for many months now. By paying them my refunds, the bank is prejudicing my position with the DCA.

 

The FOS have said the banks say, that if i don't accept the offer to pay the DCA, they will buy the debt back from the DCA, apply the refund and then sell it back on. Is this allowed as i thought the DCA is not allowed to sell it while in default of s.78 and for the bank to buy the debt knowing this ...

 

What would be my position if i took the matter to court as the FOS said they believe a court would state the same as them.

 

The FOS said even if the DCA had written off the amount or closed the account, they would still be entitled to the refund towards the concession, bringing this into the same grey area as my HFC refund. I think this is totally wrong. I asked what if the DCA owed me £1000 and wrote off a £1000 account so no money was exchanged? They said it's all in the wording of it and if they write off they can get back later. Bizarre.

 

Advice appreciated please as i don't know what to do and don't want to keep losing my refunds to either the bank or the DCA.

[zootscoot]

If you haven't paid the charges, how can you claim them back?

[tifo]

If you haven't paid the charges, how can you claim them back?

 

I don't owe the bank any money now as the account was fully settled, whether by me or a DCA.

 

In many instances where the account has been sold to a DCA, the refund comes to the claimant, especially when in court. In many threads i have read here, the advice is the bank pays the claimant directly. In cases where the bank tells the court they have paid the DCA, the claimant states that payment has not been received by them and continue on.

 

Then it is up to the claimant and the DCA to work out payments.

 

The claim is between the bank and the claimant, why should the money go to a third party who was never part of the credit agreement when the charges were taken.

 

I need to know this as i will need to issue court claims in the new year as the banks, through the FOS, want to pay the DCA. The FOS agree with this.

 

None of the DCAs have complied with s.78 so are not entitled to receive anything until they do, or enforce the debt. So are they entitled to receive this money?

 

In one case, the bank has stated they will buy the debt back, apply the refund and sell it back on if i don't accept the offer to pay the DCA. I've asked how the DCA can sell something it has not proven, under primary legislation, to own. Then of course the bank would have to provide documentation that is has legally bought the debt.

 

It makes a bigger mess to go in court etc like this, than just to pay the claimant but that's the way the bank want it.

[sansho]

Tifo is correct... The bank must pay you and NOT the DCA.

 

I had this problem with GE Capital who claimed that they had paid the penalty charge refunds to CL Finance, even when I insisted that I want it paid to me directly. The County Court Judge was riding along with them, the banks legal rep until I stopped them all dead in their tracks with the legal definition of set-off and the rights thereunder.

 

I won the argument hands down and got paid a wasted costs order on top.

 

Here are excerpts of some arguments to use .....

 

Set-off is only available where the following criteria is satisfied –

(i) The cross-claim must be closely connected with the primary claim.

(ii) The cross-claim must be for an amount of money (liquidated debt) that must be capable of being calculated with some degree of precision.

(iii) The claim and cross-claim must be mutual, they must be owned as between the same parties (or their assigns) in respect of the same rights.

(iv) The cross-claim must be due prior to the customer receiving a notice of assignment.

 

The assignor's intent of selling the debt onto a third party is to plainly get rid of all control over the debt and to transfer the right and title over to the assignee. It is therefore axiomatic that the assignor cannot retain any control over the debt or any authority to collect. The assignor has nothing to gain from performance and therefore has no set-off rights.

 

The general principle underlying mutuality is that the claims of one person should not, without agreement be used to satisfy the liability of another. The time for determining mutuality is when set-off is being asserted. For there to be mutuality, each claimant must be the beneficial owner of the claim owed to it. In the event of assigning the debt followed by written notice to the debtor, the assignor will neither be the legal or equitable owner of the sold debt and thus mutuality will not be present.

 

Reference can be made to the case of National Westminster Bank v Halesowen Presswork And Assemblies Limited [1972] AC 785 where it was said that: "it is necessary that the debts be between parties in the same right ..."

 

Reference can also be made to the case of Edlington Properties v. Fenner & Co. Ltd [2005] EWHC 2158 (QB) which also affirms this position that the assignor has no right of set-off to a third party (assignee) for a damages claim brought against it post-assignment, as any equitable set-off in this regard is personal in nature and the debt sold is not transferred subject to it.

 

The Claimant finds there is no further consideration to be made in respect of the third party (assignee). The third party (assignee) is not a co-defendant in the instant case.

 

For set-off to operate the nature of the claim must be mutual and must be owned as between the same parties in respect of the same rights. The right to set-off is a self-help remedy, and is normally found in actions of debt brought by a plaintiff, where the defendant raises a cross-claim for a debt to reduce or make extinct judgement which would otherwise have been obtained by the plaintiff. In the instant case the Defendant (assignor) does not fit the profile of either party as it has no beneficial title or interest, or grounds for claiming a right to set-off a claim brought against it for breach of contract.

 

 

I hope helps other people who have this type of issue with the banks. In fact you can do some minor legal research on the internet about the subject "equitable set-off rights".

[tifo]

thanks sansho, very interesting.

 

you're saying my position is backed by case law then?

 

the FOS seems to agree with the bank in that any refund must go to the DCA and i have had this in about 3 claims now. I've told them about s.78 requests and the bank prejudicing my position with the DCA who have no right to receive any payment on the account, yet they still take the same line.

 

i don't understand the references to a cross claim in your post as i am claiming from the bank and they are saying they will pay the DCA, on a debt which was sold in full.

[sansho]

Remember the FOS are not legally savvy in all areas. Even if they knew you had a loop hole it would'nt be appropriate for them to show you what it is. As they will always like to keep their necks stiff and straight, and cater for the companies bankrolling their existence.

 

Case law is there to help with the arguments you can use about set-off rights. The bank cannot set-off the money they are supposed to pay you to a third party without your express permission. If you have'nt given them express permission then you have'nt been paid, it is that simple.

[sansho]

The cross-claim is related to the position of the DCA recieving payments meant for you. The bank in paying the DCA have acted as if they are agents of the DCA. So it would appear that the DCA had a cross-claim or lien against the bank charges that was being refunded to you.

 

This of course is wrong as the claim (contractual breaches) you have against the bank is totally different from the claim the DCA would likely have against you. Besides the DCA cannot be entitled to your payout which occurred after the debt was assigned to them.

 

The bank's claim (acting as agent of DCA) in this regards is a cross-claim or counter-claim.

[duncan_disorderly]

sansho

 

I wonder if you could help. I have read snippets of the Edlington case and it is stated that the set-off limitations do not apply to old leases under the Law of Property Act 1925.

 

One DCA, Cabot about which there is a section on this board, state that they asign debts under this act. Does this mean that any claim against an original creditor for penalty charges could be set-off against a debt assigned to Cabot, if that assignment is under the Property Act. There is a lot of debate on the Cabot board as to whether they are entitled to assign under this Act in the first place, as they seem to be using it as a smokescreen to avid their responsibilities under the Consumer Credit Act.

 

However, before I approach the original creditor for a penalty charges claim, I would like to know if they have the right to offset the debt with Cabot, or whether they will have to re-assign the debt to themselves in order to credit the account with the penalty charges applied?

[sansho]

Duncan_Disorderly,

 

Put simply... Cabot cannot ask for the refund of charges to be paid to them. The Original Creditor has to pay the refund of penalty charges to you and NOT Cabot. Remember the penalty charges being refunded to you is occurring after notice of assignment and is not subject to the assignment itself.

 

The only way Cabot can collect the refund of charges is if you

1) Make them a co-defendant in your bank charges claim that you file with the court

2) You sign an agreement with the Original Creditor and Cabot (all three parties signing the document) that they can set-off your debt from the refund of bank charges claim.

 

If the above two criterias are not met, then the Original Creditor is not entitled to pay one penny to Cabot after of course you have launched your bank charges claim with the court. The burden of any contract cannot be assigned, liability always remains with the Lender. The Original Creditor cannot assign its burden to Cabot without your agreement, besides even Cabot would'nt consider buying the Original Creditor's burden (debts owing to someone else) that would be crazy.

 

Remember when the original creditor assigned the debt to Cabot, they did so by passing on their right, title and benefit. They have no right, title or benefit remaining after assignment. The penalty charges to be refunded have to be paid to you directly.

 

Hope this sheds some light.

[sansho]

... unless of course they have bought the debt back from Cabot and Cabot have then served you with a notice of assignment back to the Original Creditor. Then the Original Creditor is entitled by all means to set-off against your claim.

 

Anyway if you truly owe the debt, then a refund will help you pay it off. The idea of Cabot not being entitled to set-off does not make this a supposed loophole for escaping the debts you truly owe and should pay.

 

If there is money by way of refund then you pay them off and feel free as air afterwards.

[duncan_disorderly]

sansho - I have sent you a PM