Getting rid of DCA's

[shinobi101]

What is the best way to get rid of DCA?

 

I simply don't want to deal with them. I want to deal with the OC only.

 

Can you simply tell them (politely) to get lost as you have no obligation to discuss private financial matters with them or anything similar?

 

Are there any "get lost I'll talk to the OC only" type templates?

[debt4get]

dont think there are any letter templates but you can just ignore, refuse to go security if they ring, dont reply to letters etc etc, and simply deal with oc

[shinobi101]

dont think there are any letter templates but you can just ignore, refuse to go security if they ring, dont reply to letters etc etc, and simply deal with oc

 

Does that still apply when the OC writes and says they don't want to talk to you anymore and tells you to deal with a named DCA?

[Bill Shidding]

Hi Shinobi, I second D4G and would add that DCAs usually disappear after 3 months (or so) of failing to get your attention. However, that does depend on whether they have been fully assigned the debt, or merely have an equitable interest.

 

In short, ignore them and approach the OC, if thats your preference.

 

Does that still apply when the OC writes and says they don't want to talk to you anymore and tells you to deal with a named DCA?

 

I expect their attitude would change, if the letter has a cheque enclosed!

[shinobi101]

I expect their attitude would change, if the letter has a cheque enclosed!

 

How about sending an offer of full and final settlement for £50, with a cheque enclosed? If they get greedy and cash it, does that mean the debt is fully and finally settled?

[Bill Shidding]

does that mean the debt is fully and finally settled?

 

Only if the cheque is from a third party;)

 

Hirachand Punanchand and others v. Temple (1911).

 

Fletcher Moulton LJ at page 340 said:

 

"In the present case you are dealing with the question in respect of money paid by a third person. In such a case there is no difference between payment of the total amount and payment of a proportion of it only, so long as it is paid in settlement of the debt. If a third person steps in and gives consideration for the discharge of the debtor, it does not matter whether he does it in meal or in malt, or what proportion the amount given bears to the amount of the debt. Here the money was paid by a third person, and I have no doubt that, upon acceptance of that money by the claimants the full knowledge of the terms on which it was offered, the debt was absolutely extinguished"

 

Bill

[shinobi101]

Thanks Bill, that could've saved me from making a silly mistake

[Bill Shidding]

No problem shinobi.

 

If they don't like it, they can return it.

[alfwithhair]

Only if the cheque is from a third party;)

 

Hirachand Punanchand and others v. Temple (1911).

 

Fletcher Moulton LJ at page 340 said:

 

"In the present case you are dealing with the question in respect of money paid by a third person. In such a case there is no difference between payment of the total amount and payment of a proportion of it only, so long as it is paid in settlement of the debt. If a third person steps in and gives consideration for the discharge of the debtor, it does not matter whether he does it in meal or in malt, or what proportion the amount given bears to the amount of the debt. Here the money was paid by a third person, and I have no doubt that, upon acceptance of that money by the claimants the full knowledge of the terms on which it was offered, the debt was absolutely extinguished"

 

Bill

 

So let me get this right.

If I get my sister to send a cheque for £50 to Capital One, stating it is full and final offer for my account and they cash it, thats the debt paid?

 

Seems a bit too good to believe

[cashins]

So let me get this right.

If I get my sister to send a cheque for £50 to Capital One, stating it is full and final offer for my account and they cash it, thats the debt paid?

 

Seems a bit too good to believe

 

Errrrr - you would still have a default registered.

 

Normally on an F&F part of the negociations would include removing adverse info from your file and if you dont have that in writing - they will just do what they like.

 

David

[Mr Worried]

WoW Subbing

[reallymadwoman]

To clarify the issue of full and final settlements, the case referred to is quoted in Bracken & Anor v Billinghurst [2003] EWHC 1333 (TCC) (10 June 2003). The full text of the relevant section is as follows:-

‘THE LEGAL PRINCIPLES

The offer "in full and final settlement" of the dispute is made at the time the cheque is sent. There must be clear evidence of actual or potential disputes at that time. The presentation of the cheque may amount to an acceptance of the offer giving rise to an accord. In Day v. McLean (1889) 22 QBD 610 at page 613 Bowen LJ said


"If a person sends a sum of money on the terms that it is to be taken if at all, in satisfaction of a larger claim; if the money is kept, it is a question of fact as to the terms upon which it is so kept. The accord and satisfaction imply an agreement to take the money in satisfaction of the claim in respect of which it is sent. If accord is a question of agreement, there must be either two minds agreeing or one of the two persons acting in such a way as to induce the other to think that the money is taken satisfaction of the claim, and according to act upon that view". 


In either case it is a question of fact, of course where there is documentation as in this case the construction of such documentation is a matter of law and will give rise to facts which are part of the material events which must then be judged objectively by the court. See Stour Valley Builders v. Stuart (1974) 2 Lloyds Reports p. 13 C.A. where Lloyd LJ said:


"As with any other bilateral contract what matters is not what the creditor himself intends but what by his words and conduct he has led the other party as a reasonable person … to believe".

Also in that judgment Lloyd LJ expressed a view as to the significance of the encashment of a cheque:


"Cashing the cheque is always strong evidence of acceptance especially if it is not accompanied by immediate rejection of the offer. Retention of the cheque without rejection is also strong evidence of acceptance depending on the length of delay But neither of these factors are conclusive; and it would … be artificial to draw a hard and fast line between cases where payment is accompanied by an immediate rejection of the offer and cases where objection comes within a day or two days". 


In Hirachand Punanchand and others v. Temple (1911) 2 KB page 330 C.A. the Court of Appeal upheld the defendant's appeal against the judgment in favour of the plaintiffs at first instance. There Indian money lenders had advanced sums of monies to a young army officer against a promissory note and upon the security of a bond. He could not pay. The plaintiffs sought payment from his father who offered an amount less than the debt in full settlement of his son's debts and enclosed a draft for that amount. The plaintiffs cashed the draft and retained the proceeds of the draft and brought an action against the debtor for the balance. Fletcher Moulton LJ at page 340 said:


"In the present case you are dealing with the question in respect of money paid by a third person. In such a case there is no difference between payment of the total amount and *payment of a proportion of it only, so long as it is paid in settlement* of the debt. If a third person steps in and gives consideration for the discharge of the debtor, it does not matter whether he does it in meal or in malt, or what proportion the amount given bears to the amount of the debt. Here the money was paid by a third person, and I have no doubt that, upon acceptance of that money by the claimants the full knowledge of the terms on which it was offered, the debt was absolutely extinguished".

CONCLUSION

The original offer made by the claimant made it clear that a response was to be as soon as possible, and in his letter of the 30th August 2002 he said he looked forward to hearing from the defendant's solicitors as to the offer by the 6th September 2002 within the week. In relation to the counter offer of the 6th September 2002 indicating further areas of dispute, the claimants received the cheque tendered on behalf of the company on the 7th September and delayed by retaining it until presentation on the 23rd September 2002. Neither the claimant or his solicitor wrote until the 26th September indicating the basis upon which the cheque had already been presented and encashed..

 

Had the offer of compromise been made by Mr Billinghurst the defendant, I would have had no difficulty in concluding that there was accord, because the claimants had acted in such a way as to induce the defendant to think that the money was taken in satisfaction of the claims in dispute, and had caused him to act on that view. However, that is not the position when one considers the clear terms of the counter offer set out in the letter of the 6th September of 2002. The counter offer admits of only one construction. Namely, that it was an offer made by a third party, and that the presentation and encashment of that cheque paid on behalf of the third party by its agent's solicitors constituted the clearest acceptance of that offer of compromise (see Hirachand Punanchand v. Temple.’

 

In my opinion for any full and final settlement to be upheld as settling an outstanding debt then

 

1. There must be clear evidence of a dispute before the making of the offer. What would constitute a dispute or evidence of it would be open to interpretation by the court. I don’t believe that being unable to pay would necessarily be considered a dispute. Querying the validity of an agreement probably would.

2. When an offer of a reduced sum is made it is probably essential to specify that it is in settlement of the full amount and that the cashing of the cheque will be deemed to be acceptance of the offer.

3. Regardless of what the other party might say, their actions alone can constitute acceptance of the offer, e.g. cashing the cheque.

4. Whether cashing the cheque will be held to be acceptance of the offer depends upon

a) when the cheque is cashed in relation to when the other party declines the offer

b) if the other party delays in cashing the cheque and/or declining the offer

5. The practical effect is that if the other party cashes the cheque immediately and either doesn’t decline the offer at all or doesn’t decline the offer immediately (or within a couple of days), then they should be held to have accepted the offer. If they hold on to the cheque without cashing it but don’t decline the offer for some time, you might also be entitled to consider that it’s been accepted and act accordingly.

6. It doesn’t matter if the payment is made by the debtor or someone else, so long as the offer of settlement is deemed to be accepted.

 

In conclusion, if you have a reasonable dispute with a creditor (in this case it was over building work, but I don’t see why it shouldn’t apply to any debt) and it is clear that there is or could be a dispute, then the creditor could be deemed to have accepted an offer of settlement if they cash a cheque or hold on to it for any length of time without declining the offer. It is irrelevant whether the offer is for 99%, 50% or 1% of the amount they are claiming, and it is irrelevant who actually makes the payment.

 

On a practical level, this tactic is probably more likely to work if you’re dealing with a DCA rather than the original creditor simply because they are so bad at actually reading letters and will pounce on a cheque without thought. By the time someone does get around to reading your letter, if at all, it will probably be too late. On the downside, it certainly won’t stop them harassing you for the rest, if there’s any chance the debt will soon be statute barred you’ve just really messed up, and reading any of the threads relating to cases going through court should tell you that no case is ever guaranteed. If they issue for the balance the judge may or may not follow existing case law.

[Fred Bassett]

I did this on an Egg account. It was being dealt with by Credit Solutions then one day I had a letter from their sister company Power2Contact and I wasn't best pleased - it contained the usual pack of lies about me not paying the account. So I stopped dealing with them. Now it's with Capquest.

 

Capquest are a bunch of morons and have spent the last 2 weeks trying to contact me - they don't know they are ringing a voicemail number so it's of no consequence as far as I am concerned, but I have already told them that I will refuse to deal with them too if they carry on in the same cack-handed manner. I'm expecting a letter from them soon and this will kick off once more.

 

This is where the fun started for me: http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/84928-fred-bassett-egg-credit.html#post1913665

 

Regards.

 

Fred

[Bill Shidding]

Just agreeing with RMW and adding -

 

 

As the Court of Appeal explained in another case, Ferguson v Davis; '...paying in and clearance of the cheque [is] a clear and unequivocal acceptance...'

Furthermore, if a creditor banks a cheque from a third party (as in the Bracken case) in "full and final settlement' of a sum (whether or not disputed) owed by you, the creditor will have signified acceptance of it as discharge of the debt.

 

IMHO, quite why a creditor would accept a F&F settlement on an undisputed debt should be questioned. The borrower should ask themselves whether there is a strong possibilty that there is something amiss with the relevant documents, if the creditor offers or implies they are willing to accept a lower figure.

 

Bill

[cashins]

IMHO, quite why a creditor would accept a F&F settlement on an undisputed debt should be questioned. The borrower should ask themselves whether there is a strong possibilty that there is something amiss with the relevant documents, if the creditor offers or implies they are willing to accept a lower figure.

 

 

I would agree.

 

In the case of an undisputed debt logic dictates that the credit would go to court pronto. I would think however that in practice, many lenders would look at an 80%+ offer on the bird-in-the-hand principle.

 

In many cases however the 50% offers often seen do not stand close inspection. Usual practice is to inflate the debt with all manner of collection charges and whatever they can dream up, (to say nothing of what may have been charged while the account was still active), then offer the discount on that.

 

The original statement still stands however, if their case is that watertight - why are you not in court?

 

David

[shinobi101]

There is a good reason for dispute on almost all debts. See my favourite thread http://www.consumeractiongroup.co.uk/forum/general-debt-issues/175668-how-credit-cards-bank.html

 

Always CCA them, dispute charges, default notices etc.

 

If all else fails, or you're really desperate, "Prove that the money you claim I owe would have still existed even if I hadn't borrowed it." Most of the time they won't be able to do this because most money is borrowed into existence. I would probably keep this as a last resort, but if you're brave or desperate enough it is a valid dispute.

 

Have a major dispute then offer F&F

[Jasper1965]

Errrrr - you would still have a default registered.

 

Normally on an F&F part of the negociations would include removing adverse info from your file and if you dont have that in writing - they will just do what they like.

 

David

 

Where would you stand if you wrote such a condition into your offer of f&f?

[shinobi101]

Where would you stand if you wrote such a condition into your offer of f&f?

 

If you agree it all up front then they'll delete all the bad stuff.

 

If you manage to trick them with a cheque that they cash, you'll have to fight for it. You'd have a hard time, but you might be able force them if you approach it right.

 

If you make a tricky offer like here's £100 F&F for a £10K debt, cash the cheque if you want to accept the offer, then you're getting away with a lot. But it's in no way dishonest, as they will read your letter and send the cheque back if they don't want to accept. In that situtation it is only their greed or ignorance that might catch them out.

[Fred Bassett]

On a practical level, this tactic is probably more likely to work if you’re dealing with a DCA rather than the original creditor simply because they are so bad at actually reading letters and will pounce on a cheque without thought. By the time someone does get around to reading your letter, if at all, it will probably be too late. On the downside, it certainly won’t stop them harassing you for the rest, if there’s any chance the debt will soon be statute barred you’ve just really messed up, and reading any of the threads relating to cases going through court should tell you that no case is ever guaranteed. If they issue for the balance the judge may or may not follow existing case law.

 

That's an interesting tactic RMW. I have an Egg account with Capquest and like you say, they are notoriously bad at reading letters. Now this account is not in dispute, but I have already had an offer from them to clear the debt at about 75% of the full amount.

 

Do you think that sending them a cheque for my usual amount might be worth a try?

 

Regards.

 

Fred

[reallymadwoman]

I don't see how it could hurt. Make sure you don't head your letter 'without prejudice' and say nothing that you wouldn't want a judge to read - behave as if you expect this to end up in court in other words. Make absolutely clear in your letter that the cheque is in full and final and if they cash it they will be deemed to have accepted the offer in accordance with the cases above. To make doubly sure, you could write it on the back of the cheque too.

[shinobi101]

I don't see how it could hurt. Make sure you don't head your letter 'without prejudice' and say nothing that you wouldn't want a judge to read - behave as if you expect this to end up in court in other words. Make absolutely clear in your letter that the cheque is in full and final and if they cash it they will be deemed to have accepted the offer in accordance with the cases above. To make doubly sure, you could write it on the back of the cheque too.

 

If you write on the cheque you could get certified copies of both sides. That way you have proof even when the original cheque is lost.

Edited January 17, 2010 by shinobi101
missing word

[Fred Bassett]

If you write on the cheque you could get certified copies of both sides. That way you have proof even when the original cheque is lost.

 

How would I get certified copies of both sides?

 

Fred

[Bill Shidding]

How would I get certified copies of both sides?

 

Take the cheque to a solicitors & ask (= pay!) them to copy it and certify the copy.

[Fred Bassett]

Take the cheque to a solicitors & ask (= pay!) them to copy it and certify the copy.

 

Ah - OK! Daft question I suppose!

 

Regards.

 

Fred

[shinobi101]

Take the cheque to a solicitors & ask (= pay!) them to copy it and certify the copy.

 

I remember paying £5 for a certified copy of something (I forget what)

 

Remember to ask them to put the cheque details eg. cheque no and acct no on the copy of the reverse side so you can prove it's the same cheque.

 

Can you write anywhere on the front of the cheque e.g. at the top??