In Court with the Clydesdale Bank

[Guest Zooman]

All the more reason not to fall for it and return the chq.

[Bigmac versus]

I personally didnt accept their offer back in Novenmber of £1200, and have since claimed and been paid out at small claims including contractual interest at the higher rate of 29.25%, i sent them a fresh lba to which they didnt respond to and have now started a summery cause at court for my next claim. The banks are very tactfull and will try every avenue possible to keep our money, learn from this i agree but feel some people wont unfortunately.

[debt_mountain]

Is it different if they send a letter saying £x will be credited to your account in full and final settlement.... If you use the cash does that mean you have accepted the offer?

 

I think the most interesting point made is that should we owe them and they take us to court would they drop the action if we said we would pay 75% in full and final and sent them a cheque? Bet they wouldn't.

[Guest Zooman]

Is it different if they send a letter saying £x will be credited to your account in full and final settlement.... If you use the cash does that mean you have accepted the offer?

simple yes, if they did not write to you that would be different and really is a part payment.

 

I think the most interesting point made is that should we owe them and they take us to court would they drop the action if we said we would pay 75% in full and final and sent them a cheque? Bet they wouldn't.

they do all the time read the debt forums.

[caro]

Is it different if they send a letter saying £x will be credited to your account in full and final settlement.... If you use the cash does that mean you have accepted the offer?

 

If they do this the best thing would be to write and ask them if you can accept it as a part payment, and if they don't agree ask them to take the money back again. They know how tempting it is to hold on to it, and this is what Clydesdale rely on.

[JulesTools]

Hi

I had a similar problem but managed to sort it quickly

 

http://www.consumeractiongroup.co.uk/forum/yorkshire-bank-clydesdale-bank/26725-jules-yorkshire-bank-well-4.html

 

if you read from post #21 onwards it should show you my outcome

 

http://www.consumeractiongroup.co.uk/forum/post-280978.html

 

I did not however cash the cheque which I very nearly did as at the time it would have helped me out of a tight spot, glad now i resisted.

 

I now advise anyone and everyone no matter how tempting to return any cheques offered so there is no confusion resulting in problems like this .

 

Hope this has helped in some way and good luck , i tend to agree with the view that the judge , sorry sheriff (must brush up on my scottish law:D) is giving you a graceful exit but that is just my opinion.

 

Jules

[JulesTools]

This seems to be a recurring problem so I have made a suggestion please read

 

Settlement rejection letter

 

Please post your views

 

Jules

[Guest bong]

hi everyone - I would have liked to have backed up my post with a quote I have read in another thread but unfortunately the site's search facility seems to be on the blink. I have read that in order for a full and final settlement offer (if it is less than the full amount) to be binding on the claimant consideration would need to be given, for example even £1 would make it a binding offer. I think it was one of zootscoot's posts.

 

As I say, I wish I could find the relevant post because I don't think I've explained it very well.

[Guest bong]

ok I've been doing some research of my own to expand on the previous post, and I have found some stuff but not sure if it applies to contracts in Scotland - if OP is in Scotland?

 

re. contracts - for a contract to be binding there must be consideration. The case law for this is Foakes v Beer (1884) and Pinnels Case (1602). Part payment of a debt is not acceptable as consideration for a settlement. This means that for you to give up your right to the full amount they owe you, they would have to give you valuable consideration. In effect they are asking you to write off their debt to you for nothing.

 

I hope this helps and that we will be able to find zootscoots posts when the site returns to normal.

[claimitall]

Thanks to all for your advice

 

I feel that the CB have been quite clever in that they have managed to turn my claim from unlawful charges argument into one about the law on what F&F settlements mean.

 

I think you are right Caro. my gut feeling in court was the sheriff was offering me a way out. As much as it irks and gets my back up that they have got away i think that i would not get to argue the finer points on unlawful charges in court.

 

I think we have to learn from this, as the clydesdale were certainly trying it on with the cheque as they could have just reduced the amount i owed on the card.

 

Julestools has also posted some ideas on how to counteract this on this thread

 

http://www.consumeractiongroup.co.uk/forum/site-questions-suggestions/60

762-settlement-rejection-letter.html

 

 

 

 

Anyway onwards and upwards

[Bigmac versus]

Very interesting bong, valuable consideration, so as an example a full and final offer of say £500 when the total claim is say £2000 would not be deemed as a valuable consideration well in my head anyway and that is where peeps will have different views on this, have i picked up on this correctly bong?

 

 

if OP is in Scotland?

 

sorry bong what is OP having a slow night here, lol.

[Guest bong]

op is original poster (claimitall)

 

by valuable consideration I mean anything with a value, even 1p. what has happened here is that by making an offer of settlement the bank is inviting you to enter into a new contract with them, nothing to do with the contract you already have with the bank (your account). for a contract to be valid there has to be certain conditions, offer - acceptance & consideration on both sides (can't think if there are any others). so they've made the offer, you've accepted (say), your consideration is to drop your claim, which is the value they are receiving, they are not offering you anything of value because they already owe you the money so that is not consideration, it has to be some extra value, could even be a bunch of flowers if thats what you would agree to. so in this case they haven't given consideration but the thing I wasn't sure of was whether this applies in Scottish law, as it certainly does in English law.

[Bigmac versus]

Hi bong, this gets better,lol.

So without consideration on both sides the new contract is not valid, the claimants consideration is to drop the claim, the defenders consideration isnt there unless they offer say the same amount you are claiming or something above what you are claiming, even a bunch of flowers.

So is the full and final settlement a contract?

And if so then should there not be a cooling off period, say right to cancel contract within certain timescale?

[Guest bong]

the defenders consideration isnt there unless they offer say the same amount you are claiming or something above what you are claiming, even a bunch of flowers.

 

they wouldn't need to offer the total amount you are claiming, but it would need to be something apart from the debt they are offering to settle, so they could say here's an extra £50 in consideration of your agreeing to this offer, or a years interest free overdraft, for example.

 

So is the full and final settlement a contract?

And if so then should there not be a cooling off period, say right to cancel contract within certain timescale?

 

its a contract.

 

I don't think the cooling off periods apply - I'm no expert but I think that cooling off only applies to credit agreements.

[Bigmac versus]

So if this applies in scotland then claimitall could look into this and say the £400 he signed for as partial settlement saying he would claim the balance of £200 at court (these are rough figures as i cant mind exactly what they were) If im getting this right then could he continue for the £600 if they didnt pay it up on top of the offer of full and final payment of £400 as he sees this as consideration payment for droping his claim (his consideration)

 

sorry for all the questions bong and thx for the advice on this.

[Guest bong]

if it applies in Scotland, claimitall could say the contract wasn't binding because the bank didn't give consideration. therefore he still has the right to pursue the balance of his claim (£200) in court.

[Bigmac versus]

Ok think ive got it the contract isnt binding because the defendant didnt give consideration. (something extra, over and above the owed amount) so therefore the claimant could continue for the remainder. Will try and do some reference work on it, I hate banks gettinf away with not paying up, thx again.

[Guest bong]

I hope it helps.

 

all the best!

[Bigmac versus]

Done a little research on it and it cant be used in Scotland.

 

 

The English requirement for consideration does not apply in Scotland, so it is possible to have a gratuitous contract where all the obligations are on one side.

Note however that not all declarations made by a person to another person will amount to a promise that is enforceable under Scots law. In particular, a declaration of intention, a testamentary provision and an offer will not be a promise.

[claimitall]

Done a little research on it and it cant be used in Scotland.

 

 

The English requirement for consideration does not apply in Scotland, so it is possible to have a gratuitous contract where all the obligations are on one side.

Note however that not all declarations made by a person to another person will amount to a promise that is enforceable under Scots law. In particular, a declaration of intention, a testamentary provision and an offer will not be a promise.

 

Just to close this thread off I took some free legal advice on the matter which was much as most people thought in that the sheriff would probably take the view that as i had cashed the cheque that was my acceptance. So i didnt proceed with the claim. All i lost was the court fee of £39. I still got all my charges back and it cost CB to employ their lawyer in court for the day.

 

Thanks to all help here

 

Claimitall