Full & Final Settlement offer advice on how to clear asap

[Bigdebtor]

Ghost

 

I agree that with huge debts (£5k or more) then a few hundred on legal advice re F&F might be a good investment. however most bog standard lawyers know zilch about CCA etc. and the hot ones tend to be on retainer to the banks!

 

I think there are enough excellent templates and case histories around (on here and on the MSE site etc.) to put together a pretty water tight F&F proposal (i.e. one that a judge would deem effective) on the back of a third party cheque for smaller F&F's. The comments above about "meeting of minds" goes both ways and a judge would not be too impressed by an OC or DCA reneging on previous F&F agreement - especially if done by a third party cheque.

 

We must remember the difference between a theoretical/academic "watertight" outcome which a specialist lawyer would be more likely to guarantee and the real life situations we are in. These OC's and DCA's have HUNDREDS of opportunities to take debtors to court - so will focus on their strongest cases and their weakest debtors first. The trick is to get them to decide the RISK/COST/HASSLE of taking YOU to court isn't worth it - and give them a tempting F&F (unless you feel using CPUTR etc. is enough to kick them into touch) - so they can focus on someone weaker/less well informed instead.

 

To reduce the chances of CAGGERS being such "weaker" targets can I repeat my plea? Can we have a simple step by step guide (with caveats if necessary on seeking legal advice) as to what to do - and more importantly what NOT to do - in seeking as water tight an F&F agreement a sis reasonably (and cheaply) possible?

 

BD

[nodefaults2010]

So does anyone (ghost or any other Cagger) have a link with more details of the oft-quoted but not found (certainly not by me at least!) 'Barclays' case??? This has now been quoted on a couple of occasions within this thread but I cannot find any trace of this elsewhere on this site or otherwise. Can anyone provide more infor for the benefit of all on this site? thanks

 

Hi Victoria-Siempre,

 

The words, "in full" were chosen deliberately as what you are about to offer is a partial settlement against the "full" debt outstanding.

 

Remember this is the first letter - a baited hook to catch the fish as it were. If the creditor accepts this, then other critical issues can be bought into play. Obviously this would cover the need for any payment to be made by a third party. As a rule, the advice to creditors appears to be that if a cheque is received from the debtor, they are safe to bank it as long as they pretty much immediately send the debtor a letter saying the cheque is being cashed on account.

 

If they receive a third party cheque, creditors are advised not to cash them until they have read all attached conditions. As already pointed out, any terms and conditions should be entirely separate to the cheque and nothing should be written on the reverse of the cheque at all - as per Barclays!

 

The notion of them doing an Absolute Assignment is one I have a legal team checking at the moment. I see no reason why it should not work. At the end of the day, if the creditor is serious about their commmitment to an F&F they should be willing to do this. I'll keep you updated.

[The Ghost]

Following the request above, here is a draft version for an easy, DIY, as watertight as you're likely to get Full and Final Settlement process. The law is immensely complicated, so if in any doubt go and see a solicitor who specialises in this area. Any comments about things omitted are obviously welcome as this is typed straight off the top of my head! As each case stands or falls on its own merits, the point often debated is whether or not accord should be struck with the creditor first. There are two versions below, one for each scenario:

VERY Basic Guide to Full and Final Settlements

 

1. Write a letter to the creditor getting their agreement in writing before parting with any money.

2. Make sure this letter contains:

i) the sum being offered in Full and Final settlement

ii) a request in writing that any outstanding balance will be written off, thus the balance on the account will show as zero

iii) Any outstanding balance shall not at any stage, now, or in the future, be collectable by any Debt Collection Agency or any other institution

iv) Your Credit Reference File shall be marked as settled in full and any defaults removed.

v) A time limit of -eg- 28 days within which they should respond before you transfer your offer to another creditor

3. On receipt of confirmation of the above, and only on receipt of this, send a third party cheque to the creditor with a letter stating it is in Full and Final settlement against Account Number abc123. Encashment of the enclosed cheque shall form a binding contract with the third party.

 

Now some will argue that it is not necessary to get accord with the creditor first in which case the following should be helpful:

 

• It is not necessary for a dispute to be in place prior to making an offer of F & F.
  
• There is a definite distinction between a debtors own cheques and those of a third party.
  
• Timing is of the absolute essence, a delay of a few days by the creditor after cashing F & F cheques is usually not fatal to his case, a delay of two weeks or more usually is fatal to his case, although seven weeks is on surer ground.
  
• Delay by the creditor in informing the debtor (if the cheques are the debtors own) of his refusal to accept the offer is fatal to his case as above.
  
• If this is attempted by the debtor acting alone then they must be prepared to “lose” the money offered in F & F as only monies taken on account, the remainder of the debt still being owed and shall we say enforceable now or in the future. The question to ask yourself is really can you afford to have this money taken as only monies on account and still continue making payment as before or have the debt still outstanding
  
• Third party cheques are essential components of succeeding with F & Fs below the actual figure of the original debt. If they are then cashed by the creditor then there exists a fully legally binding agreement between the creditor and the third party benefactor NOT the debtor.
  
• It is not entirely necessary to establish “accord” with the creditor prior to the F & F offer being made.
  
• The covering correspondence must state exactly the terms and conditions under which the creditor may cash the cheques.
  
• The correspondence must give the creditor the opportunity to refuse the offer and return the cheques uncashed.
  
• It would be a wise move to state that a friend/relative/benefactor was prepared to make an ex-gratia payment to settle your debt on your behalf.
  
• Insist that no adverse entry is made on any credit reference file i.e. settled in full or satisfied. Nothing else will suffice
  
• Insist that the debt is settled and that no one will pursue this matter (OC, DCA, assignee or other agent) now or in the future (when you die think of your estate).
  

Edited October 11, 2011 by The Ghost

[The Ghost]

I think this is what you're after:

 

The effect of the compromise is to fix the amount of his claim in just the same way as if the case had gone to trial and he had obtained judgment. Once the agreed sum has been paid, his claim against the defendant will have been satisfied. Satisfaction discharges the tort and is a bar to any further action in respect of it: United Australia Ltd. v. Barclays Bank Ltd. [1941]

[Dotty50]

Mould

 

PS Dotty - I agree it's nice to see Mould back - but I do feel his post was highly relevant to this thread and was not a hi jack.

 

You misunderstood BD, it was my post that wasn't relevant!

 

I would never accuse The Mould of such a thing!

[robbie2009]

Now some will argue that it is not necessary to get accord with the creditor first in which case the following should be helpful:

>

Accord is vital. A 'meeting of minds' is paramount in contract law, in fact it goes to the fundamental root.

The effect of the compromise is to fix the amount of his claim in just the same way as if the case had gone to trial and he had obtained judgment. Once the agreed sum has been paid, his claim against the defendant will have been satisfied. Satisfaction discharges the tort and is a bar to any further action in respect of it: United Australia Ltd. v. Barclays Bank Ltd. [1941]

I've not come across this case before. Will have to look into it. Full & Finals have nothing to do with Torts Probably the wrong end of the stick, just never seen this case before! Will have a gander .

[The Ghost]

Accord is vital. A 'meeting of minds' is paramount in contract law, in fact it goes to the fundamental root. I've not come across this case before. Will have to look into it. Full & Finals have nothing to do with Torts Probably the wrong end of the stick, just never seen this case before! Will have a gander .

 

Sorry Robbie,I think I have unintentionally misled you. The accord is essential - no dispute about that. What some people dispute is that you can send a cheque with a letter setting out the suggested 'accord' so the two are done at the same time; others say the accord should be reached inwriting before the sending of any third party cheque.

 

If that is the wrong Barclays case let me know and I'll have a better look.

[BRIGADIER2JCS]

In my opinion the accord MUST

be reached in writing prior to

ANY payment however paid and

by whoever paid, worked on this basis

for many years, other approaches have

had little success, then I am cautious

on acting of behalf of others.

[robbie2009]

Sorry Robbie,I think I have unintentionally misled you. The accord is essential - no dispute about that. What some people dispute is that you can send a cheque with a letter setting out the suggested 'accord' so the two are done at the same time; others say the accord should be reached inwriting before the sending of any third party cheque.

 

I was taught that ' it is a principle of law, as well established a legal notion that the minds of the two parties must be brought together by mutual communication. An acceptance, which only remains in the breast of the acceptor without being actually and by legal implication communicated to the offerer, is no binding acceptance '

 

As per The Household Fire and Carriage Accident Insurance Company (Limited) v Grant (1878-79) LR 4 Ex D 216

 

So, in short, I agree with you and the Brigadier

[Harrassed09]

subbing

[nodefaults2010]

The Ghost - I don't think this is the BArlcays case referred to by Tingy and others earlier in this thread....do you have any other Barclays cases that may apply?

 

 

I think this is what you're after:

 

The effect of the compromise is to fix the amount of his claim in just the same way as if the case had gone to trial and he had obtained judgment. Once the agreed sum has been paid, his claim against the defendant will have been satisfied. Satisfaction discharges the tort and is a bar to any further action in respect of it: United Australia Ltd. v. Barclays Bank Ltd. [1941]

[The Ghost]

Sorry - only just picked this up as been away for a few days. Will have another hunt around for you!

[panther12]

Not a great deal to report on my situation. Wescot are still chancing their arm by ignoring correspondence and sending the usual template nonsense letters. Have told them to put up or shut up as not going to waste anymore stamps on them.

To whom it may concern

 

I DO NOT ACKNOWLEDGE ANY DEBT TO YOU OR ANY COMPANY YOU REPRESENT

 

I write in relation to your letter dated 31/10/2011 and received by me 04/11/2011, the contents therein are noted and I respond to the same.

 

You state in your letter that you know of no genuine reason why I have failed to repay the outstanding balance on the above account, further stating that instructions will now be provided to your agent to make an appointment with me to visit my home address for the purpose to agree on how I will pay this debt.

 

Firstly, if you had bothered to acknowledge previous correspondence, including the documentation provided to you in my previous letter of 3rd September 2011 with enclosures, you will be fully aware that no outstanding amount is owed on the above numbered account. I also enclose a copy of the reply I sent to your instructed solicitor, Nelson Guest & Partners Solicitors, in reply to the letter received from them dated 20/10/2011, to which I also await any reply or acknowledgement.

 

As for your comment regarding an agent visiting me at my home address, I’m sure you don’t need me to explain the relevant legislation to you which prohibit home visits without prior consent, which, let’s face it, isn’t going to happen.

 

I have made my position perfectly clear to you on a number of occasions and provided you with all the proof you need regarding the status of the above numbered account. You are obviously ignoring my correspondence in favour of continuing to deluge me with your irrelevant and frivolous missives. For your information I have in previous correspondence already invited your client to commence proceedings in the County Court should they feel they have merit in their case, in which a full and vigorous defence and counterclaim shall be submitted. As such, any further correspondence received from you, save for service, or any genuine attempt of resolving this dispute, will be filed unanswered.

 

I trust this clarifies the situation for you.

[nodefaults2010]

hi The Ghost, have you found anything else? thanks

[Neeta]

What a brilliant thread!

 

Thanks to this site I've claimed back a lot of mis-sold PPI and charges and am now looking for a way to reduce my debts further by offering F&F with the money I have had refunded.

 

I'm only halfway through reading the thread but felt I had to post to say thank you for the wealth of information here. I'll continue to read now and start my own thread when I have good news.

 

Thanks guys you are all life savers... x

[bhoy1976]

Hi everyone.

 

I've been on a DMP now since the beginning of 2009 and hopefully have gone a long way to curing myself of poor financial habits. It stems back further than my DMP, but it was the best move I ever made.

 

I recently had an offer from family to aid me in my quest for debt freedom. It's a humbling offer but one which I am open to.

 

At the moment, my family are still in the process of putting funds together. What I was looking for advice on is how much of an offer should I make to my creditors?

 

My current approximate debts are as follows:

 

Apex - £9300

Santander - £250

Lloyds TSB - £215

MBNA - £1555

TBI Financial - £255

 

Any advice on how to proceed with this would be helpful.

 

Cheers

 

bhoy1976

[Bigdebtor]

Bhoy

 

My signature shows what F&F's I have managed to get - but I'm aware others on CAG did much better.

 

You will find they quickly offer you a "generous" 25% off - don't even think about it. Any debts sold on tend to be sold for a few pence in the pound - so arguably my 35% deal with MBNA was not actually that generous.

 

Look at other threads etc. to see the type of letter you should put together - and ensure the F&F is actually paid by a third party - not by you personally - as they can renage and just put it on as a payment in account. There are many F&F threads you also need to read before you commit to anything. other

 

Good luck!

 

BD

[horsemad1]

ok been a while since i posted. as some of the dca's keep chasing for the balance, can I assume that in 4 years time these debts will be statute barred as I pad the F&F in May 2010 and have never acknowledged it since? and even if statute barred is there any law or anything that would stop them chasing me forever?

Edited March 10, 2012 by horsemad1
wanted to add additional line

[horsemad1]

Bump

[BRIGADIER2JCS]

Once you are aware that a debt is statute barred you

need to follow the OFT Guidance on Statute Barred

debt in the 2003/2011 guidance document the only

action the creditor cannot take is enforcement in court,

they can still pursue the debt as it is NOT extinguioshed

as it would be in Scotland.

So as soon as you are sure that the debt is statute barred

YOU MUST inform the creditor in writting that thr debt IS SB

and you will not be paying, after this done the OFT considers

it unfair practice and could constitute harassment to continue

to pursue the debt.

[horsemad1]

Ok, thank you. Im just a little confused on what is considered statute barred. Some of the Dca's have carried on chasing yet I have always replied sayig I do not acknowledge the debt. Can they still be considered statute barred if these dca;s are still chasing for it?

[BRIGADIER2JCS]

Statute Barred is clear and simple

 

No payment or written acknowledgment

of a debt in six clear years fom the date

of the last payment EVER made.

Nothing other than those two things can

restart the clock.

No lawful request for information (SAR/CCA

can start the clock any letter clearly denying

liability cannot start the clock.

[horsemad1]

ok got it. Thank you very much.

[panther12]

Anyone know what’s happened to The Mould. I’m about to do another F&F and revisiting old threads I notice all his posts are deleted? Just wondering what’s happened to him as he was pretty clued up on the F&F scene. Well I think with the knowledge gained with the Moorcroft / natwest malarkey (never heard anymore from that case) I think it’s now time to start again with Egg who have made an appearance out of the woodwork via a dca offering huge savings.

[BRIGADIER2JCS]

Just let us know what you need help with.