A battle with CapQuest over Full and Final Settlement ****WON****

[PhantomReclaimer]

If this is the wrong place for this can a Mod please move it?

 

This is an account of a battle I've been engaged in on behalf of my other half and some points may be hdlpful to others.

 

In August Mrs Phantom and I arranged a small mortgage on our house, reason being to pay off some debt she had and to free up some money of mine I'd used to buy it the year before which was going back into my business.

 

Some of the debts she was paying off were paid with pre-printed cheques sent to us by the lender which we were to then send on to her creditors.

 

One of the cheques was for a debt that was being collected by CapQuest on behalf of Egg Plc. The account was being paid at a set amount vis CCCS at that point. The cheque was in the amount of £2,100 which was a full and final settlement amount on an account of circa £3,300.

 

The story is as follows;

 

On 4th August Mrs Phantom phoned Capquest and made an agreement with them for a full and final settlement figure of £2,100 on the account. Amount to be paid by "the end of August".

 

Our mortgage took a bit longer than expected and the cheque for the money was not recieved by us until 1st Sept. We posted it that day to Capquest, they recieved it and banked it on the 4th Sept.

 

Heard nothing from Capquest over the next few weeks so we took that as meaning that, although late, the cheque was still acceptable as a full and final settlement and that the account had been closed according to the terms of the agreement made on the phone on the 4th August.

 

On 9th November (over 2 months after having banked the cheque) CapQuest wrote to Mrs P saying, "...your current payment arrangement has defaulted as we have not recieved any communication or payments from CCCS in relation to your account...we would therefore advise you that the above account with Egg Plc remains outstanding and payment of the full balance is required immediately."

 

Obviously, this yanked my chain somewhat!

 

I penned her the following letter in retaliation which was sent on the 13th November on which datew she also recieved a barely inteligible letter from CapQuests solicitors;

 

"Dear Sir/Madam,

 

With reference to your recent demand in the sum of £1280.86 on behalf of Egg PLC.

 

As you are aware on the 4th August 2006 we agreed a contract for a payment from me of £2,100 in full and final settlement of the amount owed to your client. This contract was made by telephone. I subsequently paid the amount mentioned by cheque which, according to you, was received late, on the 4th September.

 

On the 10th November (over 2 months later) I received your letter, dated 9th November, informing me that the sum of £1280.86 was still outstanding.

 

On telephoning your office I was informed that due to my cheque having been received after the end of August the balance mentioned above was still outstanding.

 

You were fully aware that the cheque sent to you in the amount of £2,100.00 was the sum that we agreed was to constitute a full and final settlement of this matter and that such an amount was far in excess of my regular monthly payments. I contend that by your conduct in acceptance of the cheque, and the presenting of it for payment - along with your having made no attempt to contact me regarding the alleged outstanding balance for over 2 months - you have chosen to positively affirm the contract we made on the telephone on the 4th August, not withstanding your claim of my having breached it's terms as to the date on which the payment was due.

 

Breach of a term of a contract does not automatically void the contract, the innocent party to the contract may rescind the contract but must formally rescind it by giving notice of such to the party in breach. I have received no such notice and so have relied on your conduct in keeping the money and making no further demands for a considerable time as your affirmation that you intend that it should continue in force according to the terms originally agreed by us.

 

You have informed me on the telephone today that every letter that arrives at your offices is logged on to your system by 2pm on the day it arrives. That being the case you had every opportunity to either issue a notice by post on the 31st of August formally rescinding the contract, or to return the cheque on the 4th when you received it. You did neither and, as mentioned above, made no attempt what so ever to contact me for in excess of two months, resulting in my having relied upon the account in question being paid in full and settled to your clients satisfaction.

 

It should have been obvious to you that the payment of an amount so far in excess of the regular monthly payment plan we had previously agreed, and in an amount that we had agreed would represent a full and final settlement figure, would not have been paid by me otherwise than in full and final settlement. Especially as it was clearly only posted one day late, a delay which only happened due to the cheque itself, which was made out from a third party, being delayed on its delivery to me.

 

Further, I have today received a letter from your solicitors regarding this matter. This letter is factually incorrect in relation to several points. Firstly, it states that I made a payment arrangement in the sum of £25 on the 4th August, an arrangement I have allegedly failed to meet. I made no such arrangement for this amount on the 4 August. On that date I made the previously mentioned payment arrangement of £2,100.

 

The letter goes on to mention something in relation to a minus figure I apparently owe you – it says, “...if you fail to repay the arrears on the arrangements you have made of £-1798.23 by 19th November...”. I do not have the faintest idea what this relates to – do you?

 

To conclude. I do not accept that any balance is currently outstanding on this account. I believe that, although you consider me to be in breach of the contract we concluded by telephone on the 4th August, your acceptance and presenting for payment of the cheque in the exact amount as agreed in our contract of the 4th August, along with your failure to pursue any further payments from me for over two months, amounts to your affirmation by conduct of the aforementioned contract.

 

Should you choose to pursue this matter in Court I will vigorously defend myself."

 

Lo and behold, a few days later she recieved a latter dated 18th Nov from CapQuest advising that as the agreed full and final payment had been received late the settlement had become invalid. Presumably then, they agreed with my opinion that they should have rescinded the contract in writing - pity they were two and a half months late at this point and clearly only did it after having ot have it poited out to them.

 

Recieved a phone call from CQ's automated system on 28th November and on calling back straight away Mrs P was put through to a guy who continued to demand the payment - rudely - and who had obviusly not read the previous letter and would not listen to anything she had to say regarding it. Handed the phone to me and I ended up makign a wager with the guy to the tune of £100 that this argument woudl never see the inside of a Court.

 

Got another call the next day which I answered as Mrs P was at work. Guy still demanding payment and discussing details of her account with me!!!!!

 

These calls ilicited the following response;

 

"28th November 2006

 

 

Dear Sir/Madam,

 

I was contacted by your automated system at 19:59 yesterday evening which left a message on my home voice mail system requesting that I telephone your office. This message, however, did not identify your company, it was not addressed to me by name and gave the reference number of my account to be quoted upon returning the call.

 

Capquest has no business leaving anonymous messages relating to me on a service that can be accessed by anyone who happens to be at my address, especially, as the message was not addressed to me personally so the call may have been returned by anyone. My personal finances and correspondence are none of anyone else's business so I would like you to kindly refrain from misusing my personal information by not doing anything similar again.

 

Upon telephoning your office I was put through to someone who attempted to collect the alleged balance of the above mentioned account. This person had obviously not read my letter dated 13th November so had no knowledge of the issues raised in it and completely ignored anything I had to say to him in relation to it. I also found him rather rude in constantly attempting to talk over me.

 

I am not prepared to discuss this account any further over the telephone. I will only communicate with you in writing and only with someone who has actually read my letter of the 13th and understands the issues raised in it.

 

If you attempt to contact me by telephone after receipt of this letter then I will consider this harassment and will report you to the police and OFCOM.

 

I will not respond to any communication from you unless it relates to the issues contained in my letter of the 13th. Any further communication should, preferably, be from your legal representatives.

 

Should you not wish to discuss the details of my letter of the 13th any further then the only form of communication from you that I will acknowledge will be a claim issued at Court whereupon, I will vigorously defend myself. I will bring the matters relating to your misuse of my personal information to the attention of the Court along with any further harassment by telephone I might receive from you.

 

Whilst writing this letter I have been informed that you have contacted my home address by telephone (after having been told specifically that my file would be passed to your solicitors only last night!) and have discussed my account at length with the person who happened to answer the phone. In doing this you are clearly in serious breach of the Data Protection rules and I will now be passing this information on to the Information Commissioner.

 

Also, you told the person you spoke to that you had contacted me on several occasions since the date on which you received the payment of £2,100 (4th Sept) and prior to the letter you sent on 9th November. You stated that you have recorded phone call evidence as proof of such communications.

 

I have no recollection of any communication by telephone with you and you have certainly sent nothing by post. The person on the phone said that he would be seeking authorisation from a superior to release this information to me. Should this information not be forthcoming I will conclude that I have been lied to in relation to this matter in an obvious attempt by you to obtain payment of this money from me. Should this be the case then I will pass on the information I have to the police as I believe that you may have attempted to commit a deception offence. Not only will this have serious implications for your company but also for the individual concerned.

 

This is my final communication with you on this matter unless you furnish me, in writing, with a properly reasoned legal argument in rebuttal of the issues raised in my letter of the 13th November; or until such time as I receive a claim issued by a Court. As mentioned previously, any other communication will be regarded as unlawful harassment on your part.

 

Further, I will charge you a fee of £5 for every unnecessary letter from you that I have to waste my time reading and, should I have to write to you again, I will charge £25 for every letter sent. All phone calls to me will be timed and charged at £1 per minute or part thereof."

**************Letter end here, can't seem to swsith off the italics for some reason**************

 

 

Received letter dated 6th Dec saying that the account was under investigation.

 

Recieved letter today saying that as a "goodwill gesture" the balance was not going to be pursued and that the matter was closed:D

 

Now, I don't know what it was that made them decide not to pursue it. I'd love to think that it was my legal theory but I think the deciding factor may been the dear of having their rampant law breaking and unethical practices aired in public.

 

Still, a wins a win. Now, I think some bloke at CapQuest owes me a ton!

 

P.

[itsamomentintime]

when this guy demanded payment, he is chasing a non-existent debt. isnt that illegal? cant you do something about that?