Full & Final Settlement offer advice on how to clear asap

[Tingy]

Hi BD,

 

Have to say I only skimmed the last few posts as it's a long thread, so apologies if I repeated what had already been said. I agree that nobody is going to accept a £5 F&F in writing, so the only way is to try and dupe them as you say.

 

You're absolutely right, the time limit is critical as well. As I said there was a case (can look it up if you want) where the letters were routinely separated from the cheques and they wormed out of it as they were able to say the cheque had details so they paid it in, and the letter surfaced weeks later. Hence para 4 being so important.

[panther12]

Yes the time limits for rejection are critical, anything longer than a few days can signify acceptance by conduct. In this case it was 3.5 weeks which is pretty much damming for them, coupled with the fact that payment was from a third party benefactor. I now realise that there should not be any identifying features on the cheque that will link it to the debtors account, but in this case Moorcroft have admitted to receiving payment knowing it was made in F&F. They’ve not done themselves any favours over the way they’ve handled this and I for one will see it through to the end.

[Tingy]

Good for you!

[Bigdebtor]

Panther

 

I agree - but also feel it's critical you DON'T JUST IGNORE any letters from them or the OC - just in case it does end up in court. Always reply promptly - but point out if they have left you an unrealistic time to reply to any deadlines THEY impose. See my earlier post about a short "confused" reply - don't spell out your case in any letter - let them scratch their heads a bit - but DO REPLY ALWAYS - that way you are seen to be not trying to EVADE any obligation - just justifiably PRESSING THEM to ABIDE by the agreement they made when they banked the F&F cheque and did not deal with the T&C's in the accompanying letter sufficiently promptly - if that was their intention.

 

Good luck!

 

BD

[panther12]

Panther

 

I agree - but also feel it's critical you DON'T JUST IGNORE any letters from them or the OC - just in case it does end up in court. Always reply promptly - but point out if they have left you an unrealistic time to reply to any deadlines THEY impose. See my earlier post about a short "confused" reply - don't spell out your case in any letter - let them scratch their heads a bit - but DO REPLY ALWAYS - that way you are seen to be not trying to EVADE any obligation - just justifiably PRESSING THEM to ABIDE by the agreement they made when they banked the F&F cheque and did not deal with the T&C's in the accompanying letter sufficiently promptly - if that was their intention.

 

Good luck!

 

BD

 

Yes will fire a letter back to them. Was thinking something short & sweet like:

As you are no doubt aware, following your acceptance of the terms of the settlement agreement between the parties, this matter has been concluded in its entirety to the satisfaction of all parties. I am therefore bemused by the contents of your latest letter to me dated xxxx, to which I attribute to an administrative error on your part. To avoid any further errors of communication, please ensure that all records are updated to reflect the status of the above account as settled, and in accordance with your full acceptance to the terms said settlement agreement and third party settlement payment was presented.

 

I consider this now concludes closure to the entirety of all matters relating to this account.

[panther12]

Another identical letter received today, this is now the third. They’re definitely playing some sort of game.

 

We have received your payment of £5. We note that you have expressed this to be a payment made in “Full and finalicon settlement”. Please note that we have no agreement with you to accept such a payment on a full and final basis and we have therefore accepted the payment simply as an instalment with regard to the outstanding balance.

 

If you object to this course of action please let us know by the 11th July 2011 and we will return your payment provided that it has cleared our account.

[johnnymitch]

Hi panther

I'm think that they may have dropped themselves in it , (maybe someone else can clarify this for us).... they have admitted knowing it was for full and final settlement ... and , as it was a third party cheque ,, should have been returned if it was being refused as such ... not used as an instalment ..

[Bigdebtor]

I agree with Johnny - but perhaps they are hoping that if they inundate you with letters then you'll lose track of exactly when they FIRST wrote such a letter - and may even perhaps "produce" a copy sent within the first FEW DAYS - hich woulod get them off the hook?

 

To avoid this risk it's important YOU reply to ALL such letters promptly by RD - but ensure you now QUOTE EXACTLY when you actually sent the 3rd party cheque, when it was banked by by them (or when it came of your 3rd party's bank account) and when you received their FIRST letter along the lines of those you are now getting. That way - if they don't immediately come back and see something like "er....we actually first contacted you about this on XX and only banke dthe cheque on ZZ when you did not reply by YY as we had requested" - then you have a clear record - not promptly disputed by them - of the actual time line of events.

 

One just cannot be TOO CAREFUL in such circumstances - as they have NOTHING to lose and EVERYTHING to gain - so you MUST take ALL POSSIBLE precautions to ensure YOUR records cannot be queried/disproved and so give a Judge some doubt to exercise in the DCA's or OC's favour!

 

Good luck!

 

BD

[panther12]

I agree with Johnny - but perhaps they are hoping that if they inundate you with letters then you'll lose track of exactly when they FIRST wrote such a letter - and may even perhaps "produce" a copy sent within the first FEW DAYS - hich woulod get them off the hook?

 

To avoid this risk it's important YOU reply to ALL such letters promptly by RD - but ensure you now QUOTE EXACTLY when you actually sent the 3rd party cheque, when it was banked by by them (or when it came of your 3rd party's bank account) and when you received their FIRST letter along the lines of those you are now getting. That way - if they don't immediately come back and see something like "er....we actually first contacted you about this on XX and only banke dthe cheque on ZZ when you did not reply by YY as we had requested" - then you have a clear record - not promptly disputed by them - of the actual time line of events.

 

One just cannot be TOO CAREFUL in such circumstances - as they have NOTHING to lose and EVERYTHING to gain - so you MUST take ALL POSSIBLE precautions to ensure YOUR records cannot be queried/disproved and so give a Judge some doubt to exercise in the DCA's or OC's favour!

 

Good luck!

 

BD

 

Hi BD

Yes I think they are trying to confuse me in the hope I’ll slip up along the way. As they have already received a comprehensive reply in previous correspondence, I think I’ll just fire back something short & sweet like the below, and just keep updating the dates along the way.

 

I am in receipt of your letter dated 4th July 2011, received by me 8th July 2011, the contents of which are a duplication of your previous letters dated 27th May 2011 and 16th June 2011 which met with my written response of 5th June 2011 and 21st June 2011 respectively. I therefore refer you to the reply I gave in my previous correspondence and trust this clarifies the situation for you.

[Bigdebtor]

Panther

 

I would play it EVEN SAFER - and re-iterate exactly when:

 

1. You sent the 3rd party cheque and accompanying letter (enclosing a further copy of it tpo show it was clearly an F&F - not a payment on account or instalment).

2. The cheque appeared as paid inthe 3rd party's bank account - so must have been banked by DCA 2-4 working days earlier.

3. The DCA FIRST communicated with you afterwards IN ANY FORM.

4. A complete list of DATES OF ALL correspondence EITHER WAY since then.

 

DO NOT GIVE THEM ANY OPPORTUNITY to "magic up" a letter exactly the same as the ones now being sent - but dated only a few days after the cheque was sent to them - which WOULD have got them off the hook had they done so promptly.

 

They are currently on the ropes - and will almost certainly take ANY possibility (even if illegal or immoral or otherwise) to get off the ropes and wriggle out from the hole they have apparently dug for themselves.

 

Good luck!

 

BD

[nodefaults2010]

Why did you write the letter accompanying the 3rd party cheque yourself instead of getting the 3rd party to write the accompanying letter? Surely it would be even clearer then under contract law that the 3rd party was proposing a new binding contract that superceded the original contract between creditor (bank/credit card company) and debtor (yourself)? Interested to get people's views on this.

[BRIGADIER2JCS]

What is the full outstanding balance,a=save going through the posts?

[nodefaults2010]

Another point on which it would be very useful to get everyone's views: with respect to not writing the debtor's details on a 3rd party cheque, can anyone point to any cases where it has been clearly shown to be more efffective to NOT write on the back of such cheque "only to be used for full and final settlment of [debtor's account details listed]?? Or are we simply dealing in theory here?

 

I fully understand the argument presented as to why account details should not be included but I don't actually see why it would be valid or legally credible for a creditor to say they had read the account details but not the sentence within which these details were written and then to present the cheque for payment on the basis that someone in admin had not realised! Consequently, if the whole sentence has been read there can be no confusion that the offer is only made in full and final settlement.

 

Now I appreciate not including the details might add some weight to a 'belt and braces' approach but how much does it really add? If the only place where the debtor's details can be found are the letter and on the back of the cheque, within a sentence stating that it is only to be cashed in full and final settlement, how can a creditor say they were not aware of the consequences of their actions. Particularly if this is then coupled with no communication rejecting the settlement within a number of weeks to either the 3rd party or debtor and if the amount is not the same as a usual payment amount that has been made on the account historically??

 

Would be great to get some concise feedback from various Caggers on this.

[nodefaults2010]

BTW, if the argument rests on the belief that it is acceptable for admin staff at a creditor to just read a number but not even notice a simple and clearly constructed sentence within which it is written, I don't see how an institution could claim to be a responsible provider of credit fit to hold a credit licence.

[nodefaults2010]

Tingy - just saw your post on the prior page where you refer to a Barclays case where they did indeed reject it as F+F on the basis that the account details were on the cheque and cheque had been separated before being banked. Intrigued to see the full details of this. Please could you post a link to it?

[Bigdebtor]

Nodefaults

 

Lits of info on this and other related cases on CAG - but you do need to invest the time reading up - as these tactics have evolved over many months - even years. The Mould explained the reason for not writing anything on the cheque in great detail a few months earlier when I asked a similar question to your recent one.

 

Regarding your related question on why the 3rd party shouldn't write the letter, I would suggest the OC or DCA would probably just quote the Data Protection Act - and say they cannot discuss (or agree/accept) anything to do with the debtor solely with a third party - hence I suggest it is better to have the debtor write the letter as is common practice currently. If this practice was not sound then why is this DCA striving so hard to get the cheque deemed (very belatedly) as a payment on account?

 

BD

[nodefaults2010]

BD, thanks for your response. However, despite my lowish number of posts I have been a Cagger for some time now and have read hundreds or even thousands of posts on this magnificent forum, including many on full and final settlement. I have also read many of The Mould's and many other more experienced Cagger's posts dating years back.

 

Nevertheless, noone has answered specifically my question that is stated a few posts above, namely, 'If the only place where the debtor's details can be found are the letter and on the back of the cheque, within a sentence stating that it is only to be cashed in full and final settlement, how can a creditor say they were not aware of the consequences of their actions?'

 

The Fry case (aside from the fact that it was vs the inland revenue, who despite what should constitute fair and ethical legal practice, are I believe looked on quite favourably by the courts and hence more likely to receive a favourable judgement) stated that an accompanying letter was sent with the cheque, with the argument being that cheque and letter were separated at source. It did not, to my knowledge, say anything about the account details being written on the cheque: "[Mr. Fry's] accompanying letter stated that the payment was offered in full and final settlement of his wife's debt which could be accepted by presentation of the cheque for payment." In fact, the inland revenue claimed they were not aware of the offer until they read the letter, after the fact. Had the offer been written on the cheque accompanying the letter, surely it would have been harder to say that they were not aware of the offer.

 

Furthemore, the outcome was determined on the basis that (a) Mr and Mrs Fry were considered to be one entity due to their long-standing marriage (hence the cheque was deemed to have not come from a 3rd-party) and because it was rejected in a matter of days, not a number of weeks, hence the pattern of conduct by the creditor provided sufficient evidence of the payment not being considered as a full and final settlement. However, this was not specifically, nor solely, nor mainly because of the cheque having written on it details of the account or that it was only to be banked in full and final settlement.

 

A number of legal websites do in fact carry the warning that "If a cheque is received from a third party, the acceptance of the offer accompanied by the presentation of the cheque without any qualification of that acceptance having been communicated to the third party will be fatal to the further pursuit of the residual balance of the debt." This of course is not conclusive in a court of law but it adds a lot of weight to any argument that an account is fully and finally settled.

 

As mentioned above, I am very interested to see details of the Barclays case referred to by Tingy as I have searched quite extensively and cannot find any. No doubt they are out there so would like to see exactly what the situation was in that case as it may indeed add weight to the argument being presented that the 3rd party cheque should contain no details.

 

Re: a 3rd party letter being sent, I am of the view that it is at least as and quite possibly more binding under contract law as there can be no misunderstanding that the cheque sent is intended as an offer from a 3rd party to the OC to supercede and fully and finally settle the debtor's existing obligations. Whereas a letter sent by the debtor albeit with a 3rd party cheque is legally nearer to the debtor and hence, I believe, potentially nearer to the greyer legal waters of settlement between the creditor and debtor. Of course this may not be the case but I see legal logic, so to speak, in this approach.

 

For the record, a 3rd party has sent letter and accompanying cheque for me and it has been accepted, so it can work this way. Anyway, very interested to get more specific answers to these points I have raised, any feedback welcome.

[BRIGADIER2JCS]

Simple question what is wrong with writing on the FRONT of the cheque where

it is bound to be seen I have done this on quite a few cases all have been accepted.?

[nodefaults2010]

Brigadier - are you referring to a 3rd party cheque or one written by yourself as a debtor?

[BRIGADIER2JCS]

Both, sometimes a'' Client'' will as for me to deal with creditors directly so

I will us my cheque,0r the give me a cheque to send with documentation.

Brig.

[nodefaults2010]

I think it is a trade off between effectively waving a flag that states to a creditor "I am trying to pay you less than you say I owe you but please bank my cheque in full and final settlement" and having it clear enough that when banked you can legally demonstrate sufficiently that by their conduct they have signalled accord and that the debt is settled. But indeed, if they will bank it and then not reject it immediately and particularly if it is from a 3rd party then, yes, why not write it on the front of the cheque?

 

Whether on the front or back of cheque though, I just don't see how it is legally credible for any licenced credit firm to say they were not aware of the offered terms when the account details were contained within a sentence stipulating very clearly that the cheque was only to be banked in full and final settlement. Even if a firm's admin staff separates cheques and letters at the point of receipt, they have to notice the words in the sentence that literally sandwich the account numbers! Otherwise are they claiming that their staff cannot read or that they are instructed to ignore all sentences and information other than an amount and an account number, even if such information is contained within a sentence?! I don't see how that would stand in court.

[BRIGADIER2JCS]

I can think of one situation a couple of years ago, I had a case with

a DCA recalcitrant to any approach,various line manager phone jockeys

having their moments of glory saying ooooooooooooonNOOOO.cany't do that,

so I sent it RD to the compliance manager, who said she had not been informed

of the offer and it was accepted 20% of a £3K debt.

[nodefaults2010]

Good job! One point though, if the debt has not been purchased by a DCA but they are merely representing an OC, how legally binding is it if a 3rd party cheque with full and final settlement conditions is banked by DCA and then no rejection is made by either OC or DCA for e.g. 8 weeks? Is this as binding as the OC banking the cheque? Is it binding but then the OC has legal recourse to the DCA for negligence or is it not as binding as DCA does not have authority to accept a full and final settlement without agreement by the OC?

[Bigdebtor]

I would say the OC has given the DCA your details - you haven't asked to deal with the DCA - so any deal their DCA does with you must be binding on the OC - and the OC can sue the DCA (not you) if the DCA screwed up.

 

BD

[nodefaults2010]

BD, that's a good point - it is the OC that has provided the debtor's details to the DCA in order for the DCA to be their representative and not the debtor who has established contact with the DCA so in effect they are legitimising any communications and actions between the DCA and debtor. As such, they are authorising the DCA to legally represent them. From that perspective it appears to be a good argument for any settlement they accept being legally binding. At the very least, if the creditor still pursues a claim against the debtor then the debtor could claim against the DCA.