Heading the Right Way!

[Never-In-Doubt]

Re: Heading the Right Way!

I agree to a great extent Niddy, however it is not always necesaary for the lender to agree anything.

It is if you do not want a common law legal fight on your hands, sorry - I am trying to split the two scenarios so those that read this understand what it is we're whittering on about cos it's got quite confusing...

I simply used a different example to split the two scenarios.....

[garlok]

Re: Heading the Right Way!

Hello Casp, in my text there was a raft of case law plus the standard advice given to creditors. And I have gained a bit more knowledge since. And by the way DS has a copy of the text via PM before it was posted on this thread.

I agree to a great extent Niddy, however it is not always necessary for the lender to agree anything. That is standard lay advice but in my view of it, it is not totally necessary and I would never entertain such negotiations with a DCA unless I had a copy of the Deed of Assignment (not any old NoA either) in absolute in my hand, only otherwise with the OC.

But yes we do need to come back to this in some form or other.

regards
Garlok

[caspar]

Re: Heading the Right Way!

Gald you posted that up Garlok. I'd not long ago sent DS a message saying there was significant case law missing. There's so much around this issue there will never be a one size fits all solution and as you quite rightly keep saying, under Common Law each case stands or falls on its own merits.

[Never-In-Doubt]

Re: Heading the Right Way!

Yep understood Garlok - thanks for the clarity on case examples..... it is very much a per case basis I feel, and like you say it is all to do with the way you are led, ie if a lender says we'll accept £2k in F&F then sell the balance off, you'd have a much better argument - but if you just randomly send in £2k then you're not guaranteed anything.......

Anyway, its something we can come back on and start a healthy debate over

[garlok]

Re: Heading the Right Way!

Sorry Debt Star it is not a manoeuvre as such. It was finalised quite properly with specialist lawyers dealing with it within all of the case law which has been quoted.

However I said right at the beginning of this the case law provides no black and white reference. Every case stands or falls on its own merits and everything in this carries some risk.

regards
Garlok

[garlok]

Re: Heading the Right Way!

Thanks Niddy,

I think a dissection at this stage is perhaps premature. It is a subject I spent a lot of time on prior to even mentioning the matter to our solicitors as I was so unsure.

We have won significantly with their help and control hence I would and always have advised that it is not for the faint hearted and a good litigation lawyer is really needed. Which is definitely not expensive if significant sums are involved.

I reiterate : Lloyd LJ made the distinction between F & F s dealt with by lawyers and those dealt with directly between debtor/creditor. ( Stour Valley Builders) in the Court of Appeal.

In the same case he also said in his judgment (or words to this effect):

"It matters not what the creditor intends but by by his words and actions what he has led the debtor to believe"

That quote in a judgement in the Court of Appeal and in a case which went eventually against the debtor to boot. He made much of the time frames/limitations as well.

There is also a later case "Cantor Index" which removes much ambiguity which puts more emphasis on " Conduct". "Fry" I believe as you know fell for other reasons as well.

This is not the place to debate such issues and I keep saying that this is DECEPTIVELY simple. It is NOT.

regards
Garlok

[The Debt Star]

Re: Heading the Right Way!

thanks for clarifying that - and also your recommendation not to try the F&F manouevre.

[Never-In-Doubt]

Re: Heading the Right Way!

Finally it is best if before paying a F&F you can ensure that the account is in dispute as the court will then look to see if a valid agreement has been reached and as already mentioned, the facts will be different in every case and so each case will rest on its own merits. If the debt is not disputed the creditor is far more likely to cash the cheque and write back to you immediately saying the payment is accepted on account.

Casp, mate - this isn't entirely factual, a court will not take any consideration of dispute - the facts are facts.

If the court is prohibited from making a judgment due to fault (i.e. s.78), then granted. Otherwise they can make a normal judgment whether or not it is disputed. It is only OFT "Guidance" that suggests that lenders 'back-off' when an account is in dispute, legally speaking it doesn't matter one iota whether you dispute it or not - that is why a lender will say to the judge, well as the customer disputed the debt we brought action.

Basically, never rely on a judge or a court for such things - it is quite uniquely a case-by-case specific as you pointed out. Regards to the lender adding it to account unless disputed, this is unfounded mate - ie there is nothing legally or otherwise that suggests this to be the case - yes, the lender can do this with a disputed account or a normal account - it'd not really matter, and the only way you'd get anywhere is for you to take action, which is what we're saying - is very expensive, is very risky and is very likely to lose in light of Fry et al....

[Never-In-Doubt]

Re: Heading the Right Way!

right well this changes finks summut dun' it? my debt to the lenders is not in dispute, I owe 'em the £ and have been paying 'em regular for 5 years since they defaulted me. Very pleased they didn't AP me though

so where does this leave me in trying the "Garlok Manoeuvre" with the F&F?

Noooo - please, I don't want to start ripping posts apart but this info is quite inaccurate for general purpose - please, for the moment ignore this comment.

I'm too busy with site issues right now to get into this but suffice to say, it's not what I would suggest - but that is because it may be an isolated incident in which worked for one person, generally speaking it is not accurate.

I thought we said not to try that manoeuvre especially after we started quoting parts of case law that would defeat it, ie Fry for instance!

[The Debt Star]

Re: Heading the Right Way!

Finally it is best if before paying a F&F you can ensure that the account is in dispute as the court will then look to see if a valid agreement has been reached and as already mentioned, the facts will be different in every case and so each case will rest on its own merits. If the debt is not disputed the creditor is far more likely to cash the cheque and write back to you immediately saying the payment is accepted on account.

right well this changes finks summut dun' it? my debt to the lenders is not in dispute, I owe 'em the £ and have been paying 'em regular for 5 years since they defaulted me. Very pleased they didn't AP me though

so where does this leave me in trying the "Garlok Manoeuvre" with the F&F?

[garlok]

Re: Heading the Right Way!

Hi Casp,

Thanks for raising this again. It is so important for people to realise what they are dealing with in F & Fs. Niddy has my full text on the subject which cluttered this this thread for a while. However if you look back at posts 42 and 43 on here you will see that there is a counter to "Fry".

As I know from PMs elsewhere the ordinary High Street solicitor will normally just quote "Fry" at you and tell you you have no chance. That is not true. I am living proof of that. But there are a couple of reasons why "Fry" fell in the end which Niddy will bring out in due course.

I think we should wait and see what Niddy's final take is on all this as with all respect to you some of the detail in your last paragraph worries me slightly.

regards
Garlok

[caspar]

Re: Heading the Right Way!

For those that are not massively familiar with case law here is something I've just come across:

In The Commissioners of Inland Revenue v Fry, Mrs Fry owed the Inland Revenue over £100,000. She had no assets or other means to pay this amount. Mr Fry wished that his wife avoided bankruptcy proceedings and so in May 1998 offered the Inland Revenue £10,000 in settlement of its claim. This was rejected by the Revenue in September 1998. However, no proceedings were brought and in May 1999 Mr Fry sent a cheque for £10,000 to the Revenue in full and final settlement. At the Inland Revenue, the procedure for dealing with all correspondence was that any enclosed cheques went one way to be banked and the letters went another way to be read. The cheque was therefore banked immediately. The letter was dealt with some four days later at which point the rejection of the offer was communicated to Mr and Mrs Fry. The Inland Revenue were still entitled to claim the full amount from Mrs Fry and treat the amount received as a payment on account.
In Bracken v Billinghurst an employer who had been awarded £45,000 as the result of an adjudication, told the building contractor on the other side that it would accept just £6,000 in settlement of this award. The other side decided to send a cheque to the employer for £5,000 in full and final settlement. However, in this case the covering letter stated that if the offer was not accepted the employer should return the cheque.
Timing was key in this case as two weeks passed before the employer cashed the cheque and wrote to the contractor rejecting the offer in settlement and furthermore stated that it would pursue them for the total award. The court held that this was too long a period for it to have held the cheque and not informed the contractor of its intentions. This delay, combined with the clear terms set out in the contractor's letter, meant that there had been accord and satisfaction (i.e. the debt had been settled at only £5,000).
This last case highlights the dangers present in this area and the importance of acting quickly. One cannot treat a sum received as a payment on account without informing the other party of this intention sufficiently quickly. Where you are the party making the lower offer you should be as clear as possible about the terms on which the cheque may be cashed. Nevertheless as can be seen from the cases mentioned above, the other side may still be able to accept the cheque as a payment on account as long as it responds swiftly. If this treatment of the offered amount is unacceptable to you then it may be prudent not to make the offer in this manner.
Finally, if such an offer is to be made directly by you, the client, rather than through lawyers, it is important to understand the significance of the terms on which the offer is made. In a recent case a dispute arose between a company, and a contractor who regularly provided services to the company. The company ordinarily paid the worker's fees by electronic transfer and subsequently, when advised to send a cheque in offer of full and final settlement, the company transferred the amount direct into the worker's bank account using its ordinary method of electronic transfer. Such a transfer did not require the other party to do anything to accept the money; indeed it would have required them to have actively transferred the funds back out in order to reject it. This would undoubtedly weaken any subsequent claim that the worker had accepted the sum in full and final settlement.





On a slightly different point, where the creditor has indicated acceptance and goes back on their word we should not forget the right of promissory estoppel.

Finally it is best if before paying a F&F you can ensure that the account is in dispute as the court will then look to see if a valid agreement has been reached and as already mentioned, the facts will be different in every case and so each case will rest on its own merits. If the debt is not disputed the creditor is far more likely to cash the cheque and write back to you immediately saying the payment is accepted on account.

[garlok]

Re: Heading the Right Way!

Oh and by the way a cheeky DCA has emerged, many many months later threatening Armageddon over this who has now had a demand for a (tongue in cheek) six figure sum by way of financial redress for infringing the stringent terms and conditions of the F & F plus a demand for payment of our sols costs in full which I have asked them to inflate as high as possible!

Slithered back under their stone, The silence has been deafening. no surprises there then. You're all up for a drink with me and sols? .



regards
garlok

[Never-In-Doubt]

Re: Heading the Right Way!

Don't sound so surprised!

Haha

[garlok]

Re: Heading the Right Way!

Mornin' Guys and Gals,

Dry and bright here the outlands of NW.

I hope DS that you can succeed with this. Slw but sure of your ground in my view is the key.

Can I be permitted to just emphasise a point in my text which is of practical relevance in the day to day stuff particularly banking and CCs. make sure you can access your account statements on line. Check them every day preferably at start of business and close of business. Make sure you print hard copy ofthe statements that show the transactions going through your account. Ask your benefactor to check their account and keep track of the cheques by hard copy.

In our case the cheques were put through our account 48hrs after they had left the sols offices, 4 days later the cheques cleared our benefactor's account. 7 days after the cheques had left the sols offices our account was still open but they had cut off any access to any transaction history from 24 hours AFTER those cheques had cleared the account (i.e. 72 hours after the cheques had left the sols offices). So it is wise counsel to get your hard copy evidence.

The cheeky B****RS one month after the transactions wrote asking where the cheques were that were referred to in the letter!!!! They did not refuse the F & F as required at law at all. P**S Off was the stern reply

They will try anything on, so be alert. Barclays mate!!

regards
Garlok