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Full and final settlement cheque banked, but full and final settlement not accepted


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Hi.

 

I have sent a cheque (from a friends cheque book not from myself) as an offer of full and final settlement, the company has sent the cheque to a debt agency which now say they are now Administrating" the debt, but that is a side issue, the issue is that in the letter that I sent to them (with the cheque) when I made the offer, I stated very cleary that they do not have permission to bank the cheque unless it is in acceptance of the full and final offer.

 

They have banked the cheque, and sent me a letter demanding payment of the rest of the debt otherwise further action will be taken.

 

Please can someone advise on the leagality of the situation.

 

Thanks

nohappybunny.

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Hi.

 

I have sent a cheque (from a friends cheque book not from myself) as an offer of full and final settlement, the company has sent the cheque to a debt agency which now say they are now Administrating" the debt, but that is a side issue, the issue is that in the letter that I sent to them (with the cheque) when I made the offer, I stated very cleary that they do not have permission to bank the cheque unless it is in acceptance of the full and final offer.

 

They have banked the cheque, and sent me a letter demanding payment of the rest of the debt otherwise further action will be taken.

 

Please can someone advise on the leagality of the situation.

 

Thanks

nohappybunny.

 

Hi nohappybunny,

 

Responding to reported post....

 

Its open to a judges interpreation tbh, the general advice is to as you have done get a third party to send the cheque, clearly write on both the letter and cheque that by cashing it they are accepting the money as a full and final offer. In practice its always better to get a letter confirming they will accept an amount as F&F but not always easy to get.

 

Legally they probably wont want to proceed if they have been caught out and cashed when they shouldnt have but thats only if its not a ridiculous amount, say £1 on a £2k debt. So you could just write back to the DCa saying something like:-

 

I am deeply shocked and surprised to receive your request for monies on an account previously settled with the original creditor, this was under a full and final settlement offer accepted and cashed on xx/xx/xxxx. I would remind you of the numerous offences under the debt collection guidelines that you are currently guilty of by requesting further monies on a settled debt.

 

Just my own opinion tho.

 

S.

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I am reliably informed that if the cheque was a "third party" cheque and the covering letter stated clearly that the said amount was only to be used in full and final settlement of the alleged debt otherwise the cheque had to be returned uncashed then the creditor had actually entered into a legally binding settlement of the account. As I understand the surrounding case law which to be fair I have not yet found, any court action would revolove around "intent". Failure to return the said cheque uncashed complete with covering correspondence not accepting the F&F then cashing it demonstrates "intent" to the court. We are in the middle of one of these and the bank concerned is very reluctant to correspond at all now.

 

I stand to be corrected and I will try to find the relevant bits to refer to.

 

regards

oilyrag

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Hi Guys,

 

Just a couple of bits of information in the public domain that are of relevance in this case.

 

try the link:

 

 

There is good news and bad news in both but the Gannons comments are advising creditors on how to behave. If I may be permitted to quote from the very first paragraph:

 

"If it (the cheque) comes from a third party, then you must not (please note NOT my emphasis), cash the cheque unless you really are going to accept it in settlement. Doing so would make an agreement with the thrid party which will be binding on you."

 

The AG article is informative and explains LJ Lloyd's (as an Appeal Court judge) ruling on the subject and what is taken as the underlying norm. This article also has good references to case law both good and bad (for us) which may be worth looking up. A lot hinges on time frames etc. Pity we are not in the States where the law has been made crystal clear and irrefutable, i.e. cash the cheque and you have accepted the F&F and any further actions against the debtor is a felony with punitive consequences.

 

best regards

oilyrag

Edited by MARTIN3030
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Sorry guys these links do not work directly from the CAG site and I cannot see why. Just put "Full & Final settlement" in to your search engine and both come up on the first page of yahoo! if you search Uk only.

 

oilyrag

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Hello Nohappybunny

 

I would be grateful to you if you should post up the full precise details of the circumstances to your settlement offer, this would help me to establish the facts of this matter in order to determine whether or not a contract had been formed and concluded between the two parties.

 

For instance, was there a genuine dispute in respect of the balance that the creditor claimed you legally owed?

 

Did you engage the creditor in any type of discussion/negotiation regarding a settlement payment to the account?

 

Did you tender the said payment 'without any admission of liability for the amount claimed'?

 

How much time had elapsed between the presenting of the said payment and the creditor's notice to you rejecting the said payment in full and final?

 

Was the creditor aware that a third party was raising or making the said payment available in order for you to offer the said payment in full and final payment of the account?

 

Did you include a 7 day clause in the terms of your settlement offer for your creditor to return the enclosed third party cheque if he was not willing to accept the said cheque payment as a full and final payment to the account?

 

Did you send in your said offer of your own accord?

 

There are many, many questions I'm afraid dear fellow, Full and Final Settlement Agreements/Contracts are amongst the most complex as far as Contract Law is concerned, no case is cut and dry and no two cases are alike, the particular set of circumstances to each case of this type must be laid out so as to allow inspection of the facts thereof, then and only then can the just decision be given.

 

Please post up the full facts of this matter, including the precise script of your said offer, obviously leave your personal details out, but please state the amount that the creditor claimed as the balance and the figure that you offered as per the terms it was tendered by in the offer letter that the said third party cheque was therewith.

 

Kind Regards

 

The Mould

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  • 1 month later...

Well OP has not been here since DEC 1

Have a happy and prosperous 2013 by avoiiding Payday loans. If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.Before you decide,consider the users here who have already offered help and support.

Advice offered by Martin3030 is not supported by any legal training or qualification.Members are advised to use the services of fully insured legal professionals when needed.

 

 

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