Heading the Right Way!

[caspar]

Re: Heading the Right Way!

I see.

Heck Caspar, I guess you woz right after all

Don't sound so surprised!

[The Debt Star]

Re: Heading the Right Way!

good thread peeps.

I do have a small loan I could test this out on, a CDL iro £1400. So £140 F&F and see what 'appenz.

DS

[garlok]

Re: Heading the Right Way!

I think either way is the best you could get. By the way edit out the cetelco bit if you wish and want to use my text in that new thread, Might be better for all. I don't think it would change the sense of it much.

regards
Garlok

[Never-In-Doubt]

Re: Heading the Right Way!

As you say though being he has defaults it won't matter too much anyway will it?

[Never-In-Doubt]

Re: Heading the Right Way!

Hmmm or settled default? Whatever though they don't and won't comply with any DN instructions as they know they don't have to thus meaning the debtor would need to initiate action; that they know the debtor would lose

[garlok]

Re: Heading the Right Way!

Gotchya! I think I would set it up as account balance returned to zero in that case on a CCA. As ours was business OD this didn't enter the frame. It would in DS's cases
regards
Garlok

[Never-In-Doubt]

Re: Heading the Right Way!

I'm not sure about McGuffick Niddy, I would have to give that thought as we are talking about a totally seperate agreement here under Common Law and not to do with CCA. It is as I said an accounting asset that is changing hands and under Common Law you can put anything you like into a contract as long as it is "signed" if you know what I mean.

I would welcome any input you have.
regards
Garlok

Hiya, I am specifically trying to explain that you couldn't argue default removal as part of any demand or repayment offer. The thing is the moment you mention the "unlawful cra entry" then you're bringing both the cca1974 & the dpa1998 into the equation.

You can still relate to statute legislation as the element of the default would be via civil case that the debtor would surely have to initiate. If the debtor paid a f&f as per the detailed instructions then a dca may continue to chase the balance. Point is the debtor would HAVE to initiate proceedings as the creditor would take it down the civil road with an N1 claim for recovery of balance!

Therefore if it then ended up fighting a common law the default would remain UNLESS the debtor sought additional action against their belief of cca/DPA breach which would fail as per mcguffick.

Does that make sense lol? On phone so hard to type properly!!

[garlok]

Re: Heading the Right Way!

I would back that completely Niddy in your last but one post. I looked and would n't risk it alone unsupported. Plus DS if you already have defaults then it probably is less of a problem with the letter. Ours was for a business OD and the remnants of a business loan hence it was important enough for us to insist as part of the terms of settlement.

I'm not sure about McGuffick Niddy, I would have to give that thought as we are talking about a totally seperate agreement here under Common Law and not to do with CCA. It is as I said an accounting asset that is changing hands and under Common Law you can put anything you like into a contract as long as it is "signed" if you know what I mean.

I would welcome any input you have.
regards
Garlok

[Never-In-Doubt]

Re: Heading the Right Way!

Garlok - very devious; I love it

So do the old red herring; send money in without a reference number thus forcing them to read the letter which in turn means they cannot hide behind the separation of documents as per hmrc did in fry

Clever

[garlok]

Re: Heading the Right Way!

Back again for a short while.

Can't get at the case properly but the reference is:-
Inland Revenue Commissioners v Fry - (2001) All ER (D) 434 (Nov)

And from my very brief notes:- Sarah Fry's husband sent a cheque to the Revenue in f & f of tax debt which was of some significant amount less than the debt. The cheque was cashed immediately and a significant time went by. The reveue then pursued the outstanding debt balance through the courts. They lost and the case was found in favour of the Frys. The Revenue appealed. two background pints I sem to have made when looking at the judgment. Firstly there is a natural bias in the higher courts towards Government depts particularly the Revenue and secondly the Revenue as minor point were able to argue that husband and wife of long standing were one and the same person. The major point of law on which the case went the way of the Revenue was that they successfully argued that it was routine for all cheques to be removed from any accompanying paperwork and cashed immediately whilst the paperwork was read and ealt with at later date ona first come first served basis, hence there could be long delays. accord and satisfaction were not achieved. However in our cases if there is nothing to identify the cheque only a payment to bank XXXXXX and the money which it must ends up in the correct i.e. your account even if they are trying to establish payment on account only then they can NEVER argue on the basis of Revenue v Fry. How would they know what account to pay it into if they had not read the documentation? Hence any statement of truth as this would not and could not be a statement of truth.

something to discuss at any rate.
regards
Garlok

[Never-In-Doubt]

Re: Heading the Right Way!

TDS - what Garlok is warning is that you "could" end up paying a chunk off and still having a balance to repay. Civil (especially common) cases can be expensive; not sure id want to fight a claim let alone start one, which you'd have to do if they cashed it and ignored your claims.....

I'd maybe test it on a small debt first, a really small one!!

[garlok]

Re: Heading the Right Way!

Right First of all no problem, Niddy, use it at will and edit and add as you wish. There is another case which is useful but I am struggling at the moment, my usual route into MoJ seems to have changed. The other case not mentioned in the text is Cantor Index and neither seems to be on www.bailii.org either.

DS you are close but I think that you to say something like:-
Account number:xxxxxxxxx
"I am, due to circumstance, unable to make payment in full on this account. However a benefactor has agreed to make an offer to settle this account on my behalf in full and final settlement. Please find enclosed cheque for the value of XXXXX.

The terms and conditions under which he is prepared to make this offer are:-

1. (the default issue) i.e. all Crfs to be marked settled, partial settlement is not acceptable.
2. There is to be no pursuit now or in the future by you (the bank) or any agent appointed by or acting by representation on behalf of (the bank) of anything in connection with this matter.
3. the account balance is to be returned to zero.
4. if this offer is unaccepable to you then the cheque(s) must be returned uncashed by return of post as they belong to my benefactor.

yours etc. (don't sign unless electronically)

This is the gist of the text of our sols letter but of course they were able to use terms "like our client" etc signed of course "Solicitor Advocate". And please do note what I said about Lloyd LJ and deals done by lawyers and not by client creditor. The letter itself was again deceptively simple.

If you are going to do it this way on your own then do it with the least risky account both financially and legally first.

Exercise caution my friend, there is always always risk involved when in Common Law. the mantra is: Every case stands or falls on its own merits"

hope that this helps and will keep looking for you
regards
Garlok

[Never-In-Doubt]

Re: Heading the Right Way!

Looks fine to me mate

Do spell check first - there's a stay letter "e" in there

[The Debt Star]

Re: Heading the Right Way!

In my case the accounts have all defaulted and are on the CRFs anyway so I don't care about that. What I do want to do is pay the debts off, preferably before I die of old age

Is the letter ok to go do you think?

[Never-In-Doubt]

Re: Heading the Right Way!

The problem herein is that although garloks logic does come into play; encashment of cheque will not be sufficient to remove default notice as per the recent McGuffick case - ie it was a true reflection of account status and should therefore remain for the natural progression (ie 6yrs)!

So although you can ask for this you'd have no legal recourse to argue it if they refuse to remove the DN.

well that's my take on it.