Tactics re Settlement Offer

[Stephan56]

I am currently in (written) discussion with Cabot to try to settle a debt they claim is owing. They claim circa £2,000 - although I have CCA'd them and they have not been able to produce any compliant agreement

 

I would like to settle this (assuming they agree to report the designation "Satisfied", amongst other things, with the CRAs.) I can borrow funds to make a settlement. If I cannot settle, I can continue with the agreed monthly payment of £5 - in which case it will take them years to get any money back.

 

Cabot have proposed a settlement figure of £1,500 - which is ridiculous. I am looking at more like £600 as reasonable.

 

Cabot have said they CANNOT consider a lower offer than their proposed £1,500 UNLESS I send in an Income and Expenditure form. I do not know whether this is true or not, but we are at an impasse.

 

I have seen a lot of posts saying DO NOT send in Income and Expenditure forms (DCAs have no right to this information). That said, as I am unemployed, not a homeowner, have no assets to speak of, then all the Income and Expenditure form will show is that I am "broke".

 

If this helps to demonstrate the hopelessness of the situation in trying to get money out of me personally, is there any downside in sending them the Income and Expenditure form?

 

Clearly, MY financial situation should NOT be relevant, as would have to borrow money to settle, but I want to try to move things forward.

 

Has anyone else been in this situation? Any advice?

[Undercover-Elsa]

Hi,

I've not been in this situation..yet..but if they haven't produced the CCA they are not in a position to demand ANY money off you, nevermind £1500!

It's entirely up to you but they might take you more seriously if you stopped paying them anything until they produce proof that you owe it.

Once they've admitted they can't produce it, you're then in a much stronger bargaining position, which would also help if cleaning up your credit file is your main concern, as they will know that any offer you make is a concession as the debt could not be enforced in court if it's a pre April 2007 agreement.

Just my opinion

Elsa x

[bigandyuk1]

If your broke and cabot have no enforcable paperwork Then why pay them at all? If you are broke then surley borrowing money to pay back borrowing defeats the object?

 

Regards

BigAndy

[lilly white]

have a read.

 

i am sure you find it of interest.

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/134506-inside-dca.html

 

lilly white

[Stephan56]

Yes, maybe a tactic to stop paying them. That said, my MAIN GOAL is to try to rehabilitate my credit rating. It is worth something to me to achieve that, so not solely a money issue. I "owe" circa £40K to 10 CC companies and have a "line of credit" from a relative of £10K to "settle" all these.

 

I am prepared to pay SO LONG AS the approprraite report is sent to the CRAs (debt "satisfied") and they agree to expunge negative information etc. This costs the DCAs and CC companies NOTHING so I would have thought they would have done it.

 

Essentially I am prepared to pay 25% of the amount claimed (even in the absence of an enforceable agreement) quickly and easily (DCAs do not have to waste time in lots of chasing/correspondence etc) SO LONG AS they make the appropriate credit reports.

 

As DCAs have bought these "debts" (all pre 1997) for 10p in the £1 or less, a payment that gets them a "profit" of 100% plus would seem to me a "no brainer". You would think they woudl all JUMP at the chance to settle and get it off their books and claim a "win". Not a bit of it.

 

I just do not understand their thinking - and maybe never will. Am I doing something wrong?

[lilly white]

Yes, maybe a tactic to stop paying them. That said, my MAIN GOAL is to try to rehabilitate my credit rating. It is worth something to me to achieve that, so not solely a money issue. I "owe" circa £40K to 10 CC companies and have a "line of credit" from a relative of £10K to "settle" all these.

 

I am prepared to pay SO LONG AS the approprraite report is sent to the CRAs (debt "satisfied") and they agree to expunge negative information etc. This costs the DCAs and CC companies NOTHING so I would have thought they would have done it.

 

Essentially I am prepared to pay 25% of the amount claimed (even in the absence of an enforceable agreement) quickly and easily (DCAs do not have to waste time in lots of chasing/correspondence etc) SO LONG AS they make the appropriate credit reports.

 

 

 

 

As DCAs have bought these "debts" (all pre 1997) for 10p in the £1 or less, a payment that gets them a "profit" of 100% plus would seem to me a "no brainer". You would think they woudl all JUMP at the chance to settle and get it off their books and claim a "win". Not a bit of it.

 

I just do not understand their thinking - and maybe never will. Am I doing something wrong?

 

 

Stephan56

 

I URGE YOU TO READ THE POST INSIDE A DCA.

 

IT IS LONG HOWEVER YOU WILL HAVE A BETTER UNDERSTANDING

[dx100uk]

you say these are all pre 1997?

 

so for this long you have been paying and only recently discoverd, well p'haps a should not have been?

 

or they have been recently brought by dca, they chased, you started payments.

 

need more history

 

my thoughts lie with these being statute barred, a long time ago.

just because you started paying again, it doies not 'un-statute bar them.

 

dx

[sam614]

I am currently in (written) discussion with Cabot to try to settle a debt they claim is owing. They claim circa £2,000 - although I have CCA'd them and they have not been able to produce any compliant agreement

 

I would like to settle this (assuming they agree to report the designation "Satisfied", amongst other things, with the CRAs.) I can borrow funds to make a settlement. If I cannot settle, I can continue with the agreed monthly payment of £5 - in which case it will take them years to get any money back.

 

Cabot have proposed a settlement figure of £1,500 - which is ridiculous. I am looking at more like £600 as reasonable. did you ask for a settlement figure as they have no cca.

 

I would £600 is enough IF you can afford this.

 

Cabot have said they CANNOT consider a lower offer than their proposed £1,500 UNLESS I send in an Income and Expenditure form. I do not know whether this is true or not, but we are at an impasse.

because they will try to show that you can afford more than £5 a week:rolleyes:the £5 that you are within your right to with hold now.

no cca:lol:

 

and get all their money back 2k .quicker than the rate they will if you do not accept 1.500.

 

I have seen a lot of posts saying DO NOT send in Income and Expenditure forms (DCAs have no right to this information). That said, as I am unemployed, not a homeowner, have no assets to speak of, then all the Income and Expenditure form will show is that I am "broke".

 

If this helps to demonstrate the hopelessness of the situation in trying to get money out of me personally, is there any downside in sending them the Income and Expenditure form?

 

Clearly, MY financial situation should NOT be relevant, as would have to borrow money to settle, but I want to try to move things forward.

IF you borrowing will not cause you any further hardship and you wish to settle then you can make it clear that this is the maximum.(borrowed)take it or leave it.

 

 

 

Has anyone else been in this situation? Any advice?

 

A carefully worded letter should bring the outcome you want.

can help you if you wish.

have done this for my sis who is unemployed.3 times and all have accepted:)

 

SAM

[Guest janensteve]

I'd offer £400, £300 being 15% and a £100 profit for their trouble.

[Guest janensteve]

assuming they bought i for 15%

[Stephan56]

Thanks for the repsonses on this. By pre-1997 I meant any agreements were entered into pre 1997. I ran into finanical difficulties in 2004 and immediately contacted all the CC companies and agreed payment programmes (minimal amounts every month, some cases as little as £1). Most then sold on the debt, but I have kept to the agreed repayments (never missied one) so my fallback is I can keep these up ad infinitum

 

In terms of getting into the further debt with a £10K loan, it is essentially from a relative who will just write it off/forgive it so there is no risk to me The loan/gift would ONLY be to settle my debts and my relative is insisting (quite rightly) that the money is used to (i) "clear" my debts and (ii) get my credit report cleared up/rehabilitated to the maximum extent possible. Before he wil release the funds to me I need to provide evidence to him, in the case of the various debtors (seetlement letter from them?) that the above two purposes are achieved.

 

I have read the Inside a DCA. Thanks very much for that. My interpretation is that processes and prcedures they have n place, as elaborate as they are, do not allow for the essential component of ...rational thought. It seems there is not a clear mechnaism for someone to take a simple and commercial decision and one that is in the DCAs best interest!

 

Thanks for the offer re crafting a letter. Will draft something and then send through for comment.

[Guest janensteve]

if you are a person of straw, they aint gonna make you bankrupt at a cost of £750.

 

I would offer a timed offer which will be withdran if not accepted in 14 days.

[lilly white]

I have read the Inside a DCA. Thanks very much for that. My interpretation is that processes and prcedures they have n place, as elaborate as they are, do not allow for the essential component of ...rational thought. It seems there is not a clear mechnaism for someone to take a simple and commercial decision and one that is in the DCAs best interest!

 

Correct.

 

however the law is on your side so

 

if the agreement is improperly executed, (see s61 CCA 1974) then it can only be enforced by order of the court, See s65(1) CCA 1974

 

however the court cannot make an order if there were no prescribed terms or they were missing / misstated from the agreement (see s127(3) CCA 1974)

 

so there is nowt to say it cant go to court, only the court must dismiss such an application under s65 if s61(1)(a) was not complied with

 

the power of the court to declare the rights of parties is within s 142(1) CCA

IMHO.

GIVEN THAT THEY WILL KNOW THAT CCA IS UNENFORSEABLE

WHAT ARE THEY GOING TO DO.

Hope in hell that you do not take them to court. however you must leave them in no doubt that you will unless they agreed to a settlement.

hope this helps

[Guest janensteve]

tell em you will pay the money to someone else instead of them..... thatll make them move.

[Stephan56]

Thanks for advice re saying to them I will pay to someone else instead. Agree, good idea. One I had not thought of before

 

Also, I am somwaht "confused" about the concepts of (i) unenforceable under any circumstances and(ii) only enforceable by a judge. I have read up on this but cannot get it clear in my head.

 

As I understand it, if no signed ageement produced (i.e they cannot produce one signed by both parties) then unenforceable (under any circumstances) but even if they can produce one, if some key terms are missing, then, even if he wants to, a judge cannot render it "enforceable".

 

A simple expanation/distinction appreciated.

[lilly white]

please it does take time however have a read.

 

this will make your day

 

 

IN THE LEEDS COUNTY COURT Case No: 9LS70096

The Combined Court Centre

Oxford Row

Leeds

1st June 2009

Before

HIS HONOUR JUDGE LANGAN QC

__________

BANK OF SCOTLAND

(Claimant)

-v-

ROBERT MITCHELL

(Defendant)

__________

APPROVED JUDGMENT

__________

APPEARANCES:

For the Claimant: MISS GARDNER

For the Defendant: MR BERKLEY QC

__________

Transcribed from tape by

J L Harpham Limited

Official Court Reporters and Tape Transcribers

55 Queen Street

Sheffield S1 2DX

BANK OF SCOTLAND -v- ROBERT MITCHELL

1st June 2009

APPROVED JUDGMENT

JUDGE LANGAN:

 

1. I have to deal with an issue as to costs which has arisen on the informal discontinuance of an action.

 

2. The action was commenced on 21st May 2008. The claimant bank had, in December 2003, issued a credit card to the defendant, and the claim was for £15,417.23, being the amount said to be due on the defendant's account. Judgment in default, for a total sum of £15,727.23, was obtained on 4th July 2008. The defendant subsequently applied to have the judgment set

aside. That application came before District Judge Jordan on 29th January this year and was successful. The recitals to the District Judge's order say this:

"And upon the defendant's proceedings on the basis of a breach of

Section 61(1)(a) of the Consumer Credit Act, namely that the claimant

failed to comply with the requirements to give copies of all the

documents relevant to the agreement at the time of signing, and upon

the defendant contending that notwithstanding Section 65 of the

Consumer Credit Act 1974, Section 127(3) of the Act preventing the

enforcement".

 

After those recitals it is ordered the court sets judgment aside, and it is ordered that there be, "A determination of the issue set out above". Various procedural directions then follow.

 

3. What has been listed for trial today is, "The determination of issue", referred to in the order which I have just recited.

 

4. The agreement made in relation to the defendant's credit card was a regulated agreement within the Consumer Credit Act 1974. Section 61(1)(a) of that Act provides:

 

"A regulated agreement is not properly executed unless a document in

the prescribed form, itself containing all the prescribed terms and

conforming to regulations under Section 60(1), is signed in the

prescribed manner, both by the debtor or hirer, and by or on behalf of

the creditor or owner".

 

Having regard to the date of the agreement made in this case, which was prior to amendments made to the Act which took effect from 5th April 2007, the result of non compliance with Section 61(1)(a) would be that the credit card agreement would be unenforceable against the defendant, see Consumer Credit Act 1974 Section 127(3).

 

5. This morning I was informed by Miss Gardner, counsel for the bank, that the bank was withdrawing its claim against the defendant. This announcement has been accepted by Mr Berkley QC, who appears for the defendant, as equivalent to the service of a notice of discontinuance under the Civil Procedure Rules Part 38.3. By the Civil Procedure Rules Part 38.6.1:

 

"Unless the court orders otherwise, a claimant who discontinues is

liable for the costs which a defendant against whom the claimant

discontinues incurred, on or before the date on which notice of

discontinuance was served on the defendant".

 

Miss Gardner contends that the court should, "Order otherwise", and make no order for costs as between the parties. Mr Berkley contends that the presumption in CPR 38.1.6 should operate, and further that the order for costs to be made in favour of his client should be an order for assessment on the indemnity basis.

 

6. The thrust of Miss Gardner's submission is that the issue directed by the District Judge, and on which the evidence has been focussed, is whether the bank supplied the defendant at the time of signing the application form for credit with documents which contained all the terms of the agreement between them. I shall elaborate a little further on this. It has been the defendant's case that he was supplied with nothing more than the application form which he signed. It has been the bank's case that in accordance with the usual practice of the bank the defendant would have been, and must have been, supplied with other documents, including a pack which will have contained all the terms and conditions of the agreement made between the parties. Miss Gardner goes on to say that the defendant has at the last moment taken a new and radically different point, namely that the document signed by the defendant did not contain all the prescribed terms of the agreement. I must again elaborate on this. It is common ground that the only document signed by the defendant was the application form. It is also common ground that the application form did not, on its face, set out the prescribed terms of the agreement between the parties. The point which is treated by Miss Gardner as a

new point is dealt with in paragraphs 22 and 23 of Mr Berkley's written argument, and it will, I think, be more economical if I simply quote those two paragraphs in full rather than attempt,in my own words, to expand on them:

 

"The key words in Section 61(1)(a) are the reference to a document

itself containing all the prescribed terms, and conforming to the

regulations under Section 61. This language is clear and specific, and

ensures that mere reference to terms contained in another document

will not suffice. The document must contain the prescribed terms, just

as the signed document referred to in Section 127(3), which might save

the day, must however contain the prescribed terms. The construction

contended for by the defendant is entirely consistent with the language

of Section 61(1), and is also supported by Professor Good in his

encyclopaedic work - see Good & Consumer Credit Law and Practice

volume 2, 2B 5.121, and see also the comments at 2B 5.247. There the

learned author draws a distinction between the language of paragraph

(a) contain and paragraph (b) embody. It is respectfully submitted that

the court should adopt the same reasoning in determining this issue in

favour of the defendant, irrespective of whether or not it finds that the

defendant was supplied with documents other than the credit

agreement itself".

 

7. In my judgment, the point with which I have just been dealing is not properly to be characterised as a new point on which the bank can present itself as being taken by surprise. I refer to four documents. First, on 3rd November 2008, when the defendant was acting as a litigant in person, in the request to have the default judgment set aside he said this:

 

"As the court is aware, in the absence of all the prescribed terms being

embodied, it will render a document unenforceable in court. These

terms must be contained within the agreement, and not in a separate

document headed 'Terms and Conditions', or words to that effect".

Secondly, on 18th February 2009, solicitors, who were by then acting for the defendant, sent to the solicitors acting for the bank a copy of what they called an expert report setting out the reasons why the agreement was in breach of Section 61(1)(a), and they went on:

 

"As you are aware it is our client's position that at the time he entered

into the agreement he was not provided with a copy of the terms and

conditions governing the agreement".

 

If one goes to the so called expert's report, one finds that it is in effect an opinion prepared by another firm of solicitors, and the opinion contains the following:

 

"Based on the information provided, it appears that the prescribed

terms and conditions were not included in the document signed by the

borrower. The agreement would appear to be in breach of the

regulations in that it does not contain within the signed agreement itself

all of the prescribed terms".

 

Thirdly, that point having been taken on behalf of the defendant, it was robustly rejected by the solicitors acting for the bank in their reply of 19th March 2009:

 

"Our client has sought counsel's opinion on this matter and her view is

that the agreement is compliant. We note that your client is arguing

that at the time of signing the agreement, the application for a credit

card, he was not provided with the actual terms and conditions which

were contained in a separate document to the application. Whilst our

client accepts that the application itself does not comply with the

requirements of the Consumer Credit Act 1974, and only becomes

compliant by reference to terms and conditions, there are references in

the agreement to the conditions in which it states that they are provided

in the Halifax credit card application pack".

 

Fourthly, going back in time a little, on 4th March 2009, in the defendant's witness statement made for the purpose of the trial of the issue, at the very beginning of the statement, in paragraph 3, he said this:

 

"It is my position that the agreement is not enforceable by the claimant

as it has failed to comply with its obligations under Section 61 of the

Consumer Credit Act 1974 by failing to include within the document

that I signed all the prescribed terms".

 

8. The absence of further reference to the point in the evidence is hardly surprising, since the point is one of law, on which there was no controversy as to the facts.

 

9. Miss Gardner has given no reason for the withdrawal of the action. She is in no way to be criticised for the omission. She is bound to act in accordance with her instructions, and those instructions were presumably to say no more than she has in fact said. But this does not prevent me from drawing what is in my judgment the only inference which can possibly be drawn from what has happened, which is that the bank realises that if the issue were to be

contested it would either lose on the issue or be at serious risk of losing. There may be hundreds of similar cases and the bank would plainly not wish other defaulting customers to get wind of an adverse decision on the fundamental point which is embodied in the quotation from Mr Berkley's written argument, which I have already set out.

 

10. Accordingly, I conclude, without hesitation, that there is no reason for displacing the presumption as to incidence of costs which is ordinarily applicable in a case of discontinuance. The bank will pay the defendant's costs of the claim, subject only to any existing order for costs in favour of the bank not being disturbed.

 

11. Finally, I have to consider whether the costs of the defendant should be assessed on the standard or on the indemnity basis. In my judgment the assessment should be on the indemnity basis. The only realistic view of what has happened is that the bank has surrendered on a straightforward point of law, to which it has on several occasions been alerted by the defendant or his solicitors. A large commercial enterprise which proceeds with litigation in the face of warning signs of the kind which were erected here, adopts a high risk strategy. The point in question was a simple one. There was no relevant controversy as to the evidence. To choose to abandon the claim on the very day of the hearing is doing a serious disservice to the efficient administration of justice, and comes very close to constituting an abuse of process. At the very least, the bank's conduct of the litigation falls comfortably within the range of cases in which, on the modern authorities, an assessment of costs on the indemnity basis is appropriate.

__________

[dx100uk]

the end result if it ever went that far will be the judge, and his decision alone.

as for the two concepts you mention, there isnt one really.

 

the judge would p'haps not 'doubt' the debt if a fully compliant CCA existed.

 

as for one that might not be unenforcable the judge will not neccessarily decide just upon the CCA, he will also take into account past a/C history interms of payments etc.

 

an unenforcable cca is sadly not the magic bullet to wiping out debt that certain reclaim companies portray.

 

dx

[Undercover-Elsa]

Nice one, Lilly

[lilly white]

i will only say this what do you think Mr Berkley cost where

GOOD MORNING TO YOU ALL

 

THE BEST REGARDS LILLY WHITE.

Edited August 4, 2009 by lilly white

[Stephan56]

Much appreciated the copy of the Court ruling. Also the comment re being up to the judge, at the end of the day. A very realistic reality check for us all.

 

I still believe that the DCAs would have much better success in getting money out of people if they had something to offer in return - rather than just stamping their feet and demanding money.

 

If a DCA were to approach a debtor and say something along the lines of: "we think you owe us £XXX, we appreciate you are in financial diffculites but surely you want to clear this up, fix your credit rating, etc. If you pay us, say, 20% of the amount we claim we will ensure all collection efforts stop, we will send in a "corrective report" to the credit rating agencies and eunge all details from our files."

 

They would hold out a CARROT to debtors (which I think many debtors may respond to positively) rather than just making (usually hollow) threats to beat people over the head with a stick. Maybe DCAs need a change of tactics - which would also make recover easier.

 

Just a thought

[blueotter]

indeed but that would be counterproductive to bullying,blackmailing and harassment,techiques the industry holds in high esteem

[Guest janensteve]

i agree with Stephan56 , if Creditors and DCA's were a bit more in tune with the stark reality of the situation that the debtopr now finds themselves in and were willing to engage in a grown up fashion, i don't think any debtor would object to paying the maximum that they could reasonably afford.

 

The problem stems from the fact that, rightly or wrongly, there are debtor's who borrow recklessly (and banks that lend recklessly, so its a 2 way street) and don't give two hoots. I think it is incumbent upon a creditor to identify which debtors are serious about clearing the debt and which are not.

 

But it doesn't help when a creditor or its agent,

A) Issues crap

B) talks crap

C) dishes out crap

D) can't take the crap

 

de ja vu