Interesting Idea Regarding my O2 Default

[Neo]

Ok to cut a long story short...

 

I had a debt with O2 for £1600 and I found out they defaulted me for it (without me knowing). For the last two years I hadn't heard a peep from them or any debt collectors.

 

As i am now in a position to pay the debt off and clear my credit record up, I decided to call them to make a part payment - and paid them £600. I then wrote a letter pleading to them asking, if I pay the other £1000 would they please remove my default. Last week i received a call saying... No. What a surprise!

 

Ok, now for my idea. You know when we claimed bank charges back, some banks said at the bottom something along the lines of "if you bank this cheque you are agreeing to stay quiet"... well, what if...

 

I send a cheque to O2 for the outstanding £1000 on my account and put on the bottom of the letter "IF O2 accept this cheque they agree to fully remove the default from my records" or something along those lines?

 

We both win; They want the £1000 and I want the default removing. Everyone's a winner?

 

Now what i am looking for, is a legal view on this. If O2 bank the cheque then do not remove the default, do i have a case? From my understanding if they bank the cheque, then they have agreed to be part of a contract, i.e. my conditions - and this would be enforcable?

 

I am feeling this could work, and it could be a route for those who have a default and can now afford to now settle the debt.

 

I look forward to peoples opinions... I am hoping Surlybonds can comment...

 

ps. Please please please, just keep this thread for opinions on my idea and any legal views, etc. If you have any questions about your particular case, please start a new thread.

 

 

Thanks,

NEO

[file_wizzard]

No the statement written on the cheque will have no legal standing whatsoever, a cheque is an unconditional promise to pay, just like a banknote.

 

If you want to make settlement conditional you will need to consider other options, this could be as simple as contesting any charges on the account and then making it a strict term of settlement that the default notice is remove either by order of the court, or a simple consent order between the parties.

[Neo]

Hi file_wizzard,

 

I don't think you are getting me. Have you claimed bank charges and the banks state on their letters that if you bank their cheque, you are agreeing to stay confidential? That is a contract you are agreeing to, if you bank the cheque...

 

What I meant was if I write in the letter (not on the cheque) that "they are accepting this on the condition that...." and include the cheque seperately.

 

If they bank the cheque/bankers draft/cash/whatever form of payment, then they ARE agreeing to a contract, and that contract is the terms/conditions set out in my letter...

 

...on the other hand, they do have the option of not agreeing to the contract... by not banking the cheque.

 

NEO

[file_wizzard]

Understand your proposal, however the only way this would work in practice is to obtain a signed undertaking from the other party before you provided the cheque.

 

Of course technically they would be contractually bound by default, but without a signed undertaking how would you prove this should they fail to action your request?

 

Good idea in principle, but without a signed undertaking it would be very open to abuse, hence why when the banks make their offers they insist you sign their terms before payment is made.

[Neo]

Thanks for your input file_wizzard - I appreciate your views...

 

What if before I sent the letter I did the following:

 

Referenced the cheque number on the letter.

Photocopied the letter and cheque together.

Photocopied the Special Delivery Envelope with the letter and cheque.

 

Surely there would be enough here to prove that if they banked the cheque that they agreed to the contents of the letter?

 

I just need some ammo to use against them to remove the default after I have settled the balance...

 

Thanks

Adam

[file_wizzard]

In theory yes the above would undoubtedly suffice, however I think in practice they would just bank the cheque and continue to publish the data.

 

This would then result in you having to apply for an injunction to prevent further disclosure.

 

Nonetheless this would actually be relatively straight forward to resolve as once the benefit due under the original contract has been settled then I do not believe they would be foolish enough to waste time and effort to defend against a claim where they could not reasonably defend their position owing to the fact that the contract has ended, and unless the original terms were specific in regards to perpetual disclosure of your data they would be hard pushed to defend their position to the court.

[Neo]

Much appreciated... I will draft the letter up this weekend.

 

If you don't mind what angle would I take at getting the injunction against them? Would I use the argument that continued processing after termination of the contract could have an adverse affect on me, etc...

[file_wizzard]

no, it is far more simple, once the contract has ceased (i.e all benefits have been fulfilled or monies owed have been repaid) then unless there was specific agreement between the parties with regards to any survival clauses then neither party has any lawful right to enforce any contract term upon the other, the processing of data being just such a term.

 

There is of course the “wider interest” argument that the CRA’s and ICO are very fond of at present, but if you directed an injunction application at the original creditor after all contract duties had been fulfilled then I would be very surprised if they were actually foolish enough to try to defended the case, and even more surprised if a court awarded in their favour.

[Neo]

Sounds good.

 

Sorry to be naive, but what court form would be best to raise this injunction?

 

Last question, would this approach be suitable for an account which the creditor has accepted full and finally settlement for an amount less than was defaulted - I assume it would.

 

Thanks, NEO

[file_wizzard]

Standard N1 to the county court in the first instance

 

yes, as long as the creditor had clearly agreed that it was in full and final settlement, and that no further liability was owed by the debtor