englishrose versus Royal Bank of Scotland

[englishrose]

Sent SAR with £10 fee yesterday. now just waiting!

[susanne007]

good luck, if you havent heard anything in 3 week just give them a quick ring to make sure it hasn't been 'lost'

[englishrose]

Cheers for the advice, i will do that. I am just trying to learn the tricks of the trade for my next claims so i will take that on board. Thanks

[englishrose]

Recieved my statements, had quick flick through and late payment/over limit fee probably going to claime £300 plus. Will sort it tomorrow and get the ball rolling.

[stacymason]

Good luck!!

[englishrose]

Hi I sent of pre lim letter back in October then did not follow through as never seemed to have time then before i knew it, its January!! Do you think it will be fine for me to start again with a prelim letter and list of charges?

[englishrose]

I resent prelim letter on the 6th of March, got a letter back yesterday. I was claimin £658. they have sent me a cheque £262 with a letter stating that they have paid the difference from £12 and this is a full and final settlement. I know things maybe changing in April should i still send my LBA on the 20th or am i wasting my time?

Sorry i have tried reading through the thread to see if this is what people are tending to experience at moment but cant find anything.

[Advoc8]

Read this thread.

 

You really have 3 options.

 

1. Accept it as full/final and forget your claim. NOT RECOMMENDED

 

2. Send back the cheque saying you're continuing.

 

3. Bank the cheque but send a letter saying it's accepted as partial settlement only and you're continuing your claim. The letter is essential and must be sent asap.

 

You do not need to give up at this stage. Decide whether to keep or return the cheque and send the appropriate letter. You must make your own decision about that cheque but either option is perfectly allowable.

 

Then carry on with your next stage. Remember that you are in charge here and you control the timescales and the acceptance of any offers.

[englishrose]

Thanks for the advice its a great help. Will send letter in the morning. Bit rusty its been a while since been on here and its just get it all straight in your head again. so cheers

[Advoc8]

Pleased to help

[isidore]

I don't think that number 3 is advisable. This could be construed as you accepting it as full and final settlement - that is what is was offered as.

 

Have you seen this done and been successful?

 

If it were me, I wouldn't bank anything, rip up the cheque and send it all back.

 

 

JMHO

[Advoc8]

I don't think that number 3 is advisable. This could be construed as you accepting it as full and final settlement - that is what is was offered as.

 

Have you seen this done and been successful?

 

If it were me, I wouldn't bank anything, rip up the cheque and send it all back.

 

 

JMHO

 

I disagree, the authorities on accepting an offer of full payment are very clear - effectively it's the intention of the claimant that matters as long as that intention is indicated to the defendant at the earliest possible moment. If you'd like I'll dig up the authorities?

 

It also is something I've done myself on more than one occasion without it causing any problems.

[isidore]

Entitled to our own opinions I guess

 

I just don't see the point in complicating things by cashing what has essential been offered to you as a full settlement. Would certainly be interesting to read though if you have it lying around.

[Advoc8]

The authority is Stour Valley Builders v. Mr & Mrs T.P. Stuart 1993 WL 964283. This is a Court of Appeal case. I'm not sure if the judgment is published openly or not on the net, that discovery is left as an exercise for the reader:)

 

The judgment is quite lengthy and considers a number of other authorities but the key points are:

 

There could be no acceptance of the United States rule that a creditor who uses or retains a cheque, knowing that it was sent by the debtor as full and final settlement despite being less than the amount of the creditor's claim, is agreeing to accept the lesser sum... each case must be decided on its facts and SVB's cashing of the cheque sent by S was not conclusive evidence of accord and satisfaction.

There needs to be agreement (accord and satisfaction) between both parties that the payment is accepted as full and final settlement of the claim. This agreement needs to be evidenced.

 

The offer creates a rebuttable presumption that the offer is in full and final settlement. The creditor rebuts the presumption by informing the debtor promptly that the cheque is not accepted as full and final settlement. The creditor can bank and keep the cheque as long as this is made known to the debtor before the debtor has a chance to assume that the offer has been accepted as full and final.

 

The judgment cites a couple of other cases. In one where the debtor was informed promptly (within a few days) that the cheque was only being accepted as part-payment the presumption was rebutted. In another the debtor was informed after seven weeks. This was deemed to be too late to rebut the presumption so in that case the creditor was not able to pursue the debt.

 

Stour Valley Builders confirmed that Day v McLea (1889) L.R. 22 QBD 610 (CA), an earlier appeal court decision stating that accord was required between creditor and debtor when an offer of full and final settlement was accompanied by a cheque that was then banked, was still good law.

 

Turning to the practicalities of banking a cheque for CAG claimants I say that it all depends on the circumstances of the claimant.

 

If that claimant is in a position where keeping the funds will make a difference to them then in my opinion they should write to the bank stating that the claim is accepted as partial payment only and that they will continue with the claim. This letter should be written and posted ASAP and ideally before but not more than 3 or 4 days after is the cheque is banked. The claimant should then bank the cheque.

 

:)thanks for the click t4ff

[englishrose]

I sent the letter from the templates stating i would accept as partial payment and if i did not hear from them in the next 7 days i would be returning the cheque and continuing with the next step (which would be be LBA).

[Advoc8]

Keep us informed

[englishrose]

Got reply from letter saying this is still there full and final offer, have sent LBA as it was due. See what occurs.

[englishrose]

did most people get the letter stating ' this is full and final offer, they will pay the difference between the £12 and the £20'?

[isidore]

Most people do, they are testing you. Send it back saying no thankyou.

 

There is a partial settlement letter in the templates.