Sainsbury's Bank Plc(HBOS) And Four Debt Collection Companies Against An Individual

[Amethyst]

Re: Sainsbury's Bank Plc(HBOS) And Four Debt Collection Companies Against An Individu

I would say the letter from Sainsburys saying ' thankyou for your payment on your account, your balance is still owing of £1k odd ' could be termed as a rejection by the court. Additionally in the letter offering the cheque as full and final it wasn't stated that if it wasn't accepted as full and final it should not be cashed (or words to that effect). In a legal sense I mean rather than a 'it's obvious thats what you meant' sense.

The reasonable amount of time is within 2 weeks usually - if you account for postage times then the response is going ot be viewed as in a reasonable time.

I do agree, they should, and could easily, have responded as per the first letter saying a clear Yes or No.

Be interesting to know your barristers view on the terms under which the cheque was accepted. ie. could the letter reasonably be construed as ' payment enclosed, can you accept in full and final or if not put it against the account ' by Sainsburys or not.

I also think it could also be viewed that their response (saying on account and your balance is now XXX) would not have left you to reasonably believe the account had been settled/cleared in F&F.

[WendyB]

Re: Sainsbury's Bank Plc(HBOS) And Four Debt Collection Companies Against An Individu

Day v. Mclean (1889)
The Court of Appeal held that there was no accord to bar the claim.

what does that mean in PIL please Nats?

[natweststaffmember]

Re: Sainsbury's Bank Plc(HBOS) And Four Debt Collection Companies Against An Individu

Certainly if there are elements of a claim that are admitted, a payment can be made in satisfaction of only those elements, rather than the amount being treated by the receiving party as a payment on account for all of the elements making up the entire claim (Croft v Lumley (1). However, one might wish to attempt to force the other side to accept an offer, which is lower than the amount claimed, in full satisfaction of the claim. This is where problems can arise. Where a cheque for an amount lower than that being claimed is sent out under the cover of a letter that explains that the amount is proffered in full and final settlement, does the retention or cashing of that cheque amount to acceptance of the amount in full and final settlement?
The case law does not point to a hard and fast rule, rather each case is decided on its facts, and the party offering the lower figure must prove that there was accord and satisfaction. Authority on this point stems from Day v McLea (2). This was supported by the unanimous decision of the Court of Appeal in Stour Valley Builders v Stuart (3). The decision of the Court of Appeal was followed by a further case reported in 2001 (4) and applied by a further two cases in 2003 (5). The principle therefore looks at least to have been decided, even if it is not one whose application it is easy to predict. Precise issues of timing play a part and you may be required to respond quickly.
source: Show me the money: offers made in full and final settlement - Addleshaw Goddard
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what does that mean in PIL please Nats?

this was my source: The Law – ‘Full and final settlement’ - Voltimum UK - Electrical Installation Products and Contracting

[Godzilla]

Re: Sainsbury's Bank Plc(HBOS) And Four Debt Collection Companies Against An Individu

The cheque or payment need only come from a third party, however Sainsbury's and all of our other creditors new that the payment was comming from my father-in-law's bank account, there was no scam/con on our part.

My father-in-law borrowed this money against his home, he was and still is retired, unwell and he had no financial committments.


My father-in-law had a major operation less than two weeks ago for cancer of his throat, and he has major lung and liver problems, so you see this man was very unwell and in his retirement, and he did not hesitate to save our lives, Sainsbury's behavior, a conduct of deceit will not go fully unchallenged by me, I would not of allowed my father-in-law to borrow this money if I had of known that Sainsbury's were going to be so dishonest and underhand, unfair and inconsiderate and so very unreasonable.


Many Thanks
Godzilla.

PS- Amethyst you can post the letter if you want to, do not leave anything out apart from the address details.
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The response must clearly state the offer or payment has been "Rejected" in my case Sainsbury's show themselves as being very capable of communicating this precise statement.

But they failed to communicate this to my second offer/payment.

The last paragraph of my letter follows up on what was agreed on the telephone, Sainsbury's are to confirm as to whether or not they accept.

Sainsbury's never issued a statutory demand for full payment or never issued a demand of any type informing me to pay the outstanding balance in full with-in xyz amount of days.


Many Thanks
Godzilla.

[natweststaffmember]

Re: Sainsbury's Bank Plc(HBOS) And Four Debt Collection Companies Against An Individu

Have you done a Subject Access Request to Sainsbury for a copy of the notes on the account?

[Godzilla]

Re: Sainsbury's Bank Plc(HBOS) And Four Debt Collection Companies Against An Individu

Yes I have, there is an enormous amount of evidence in there, and I do mean incriminating evidence that Sainsbury's will not be able to dispute.

There was also an awful amount of information that had clearly been removed/deleted from the one, original and only account.

I will carry on later this evening, my children are on their way home from school now, and I need to start making tea-time and then in a couple of hours it will be bath and bedtime for them, so many things to do, please forgive me, I will be back on-line at about 8.30 or 9.00 pm.

Many Thanks
Godzilla.

[natweststaffmember]

Re: Sainsbury's Bank Plc(HBOS) And Four Debt Collection Companies Against An Individu

OK, will be back to the thread later on this evening.

[Amethyst]

Re: Sainsbury's Bank Plc(HBOS) And Four Debt Collection Companies Against An Individu

Thank you.


This is the letter sent to Sainsburys enclosing the cheque from Godzillas Father-in-law.

RE: FULL AND FINAL PAYMENT



With reference to recent correspondence and telephone conversations regarding payment offer, please find enclosed a cheque for £9,959.83 as a full and final payment in order to settle the account.


Please confirm by return that you can accept this amount in order to clear the account balance to zero, the account will be settled and closed and no futher amounts will be required.


Thank you for your kind consideration and attention in this matter.


Yours Faithfully

This was the response from Sainsburys 17 days later (they had already cashed the cheque by this point)

BALANCE REQUEST


Dear Mr (Me)

Thank you for the recent payment into the above account.


We can confirm that as of today's date 5th April 2007 the balance on the above account currently stands at £1,757.62.


Should you require any futher assistance please do not hesitate to contact us on the above details.



Yours Sincerely

Those, I believe, are the two letters that are the lynchpyn of the case.



The other issue is the creation of a new account for the remaining monies and the passing on the the DCAS ?

[WendyB]

Re: Sainsbury's Bank Plc(HBOS) And Four Debt Collection Companies Against An Individu

As a laymen, and taking into account Amethyst's post #136, my personal thoughts are that their reply to you could be taken as their rejection of the payment being F & F. Okay, they didn't say "no we don't accept it as F & F" but they do say "thanks for the payment on your account, the balance is now £xxx", which they could turn around to say it was obvious that if they said there was a balance, then you should be expected to realise that F&F hadn't been accepted.

Where is your barrister coming from on this angle?

[Paule]

Re: Sainsbury's Bank Plc(HBOS) And Four Debt Collection Companies Against An Individu

Based on your letters, I would be looking at what Cet posted earlier

Therefore, although cashing a payment is not an automatic acceptance of your terms, it is strong evidence of acceptance by conduct of any offer accompanying the cheque (Cantor Index Ltd v Thomson [2008]). However, conduct will only amount to acceptance if it is clear that there is an intention to accept the offer. That intention will be determined objectively. Cashing a cheque is always strong evidence of acceptance, especially if it is not accompanied by an immediate rejection of the offer although it is not conclusive. If a cheque is offered but the accompanying proposed terms of settlement are not acceptable, the cheque can still be banked and it would be relatively easy for Sainsbury's to rebut any presumption of acceptance, given the size of the organisation and the number of cheques they receive every day.

[scoobydoo]

Re: Sainsbury's Bank Plc(HBOS) And Four Debt Collection Companies Against An Individu

I can see what you are saying about Sainsburys using the size of the organisation as a "cover up or excuse " however ( and this is an observation and not a legal point) I would say that it would be a fairly unusual situation to receive a cheque from a third party with specific instructions in respect of an account that was propbably under observation anyway. I would have thought that the very clear and explicit wording which accompanied the cheque would have immediately flagged up the fact that was not just a normal payment. Also they have gone to the trouble of calculating the remaining debt and therefore this is not just a computer generated letter. Someone in that organisation had read the letter and ignored it.

I can only speak from when I worked at a BS . If we had received that cheque and the letter and were not accepting it as F&F payment we would not have banked the cheque without further consultation. IMO!!!

[Amy]

Re: Sainsbury's Bank Plc(HBOS) And Four Debt Collection Companies Against An Individu

I can see what you are saying about Sainsburys using the size of the organisation as a "cover up or excuse " however ( and this is an observation and not a legal point) I would say that it would be a fairly unusual situation to receive a cheque from a third party with specific instructions in respect of an account that was propbably under observation anyway. I would have thought that the very clear and explicit wording which accompanied the cheque would have immediately flagged up the fact that was not just a normal payment. Also they have gone to the trouble of calculating the remaining debt and therefore this is not just a computer generated letter. Someone in that organisation had read the letter and ignored it.

I can only speak from when I worked at a BS . If we had received that cheque and the letter and were not accepting it as F&F payment we would not have banked the cheque without further consultation. IMO!!!

Scooby, that is the whole crux of the matter in the Inland Revenue case; once opened, the cheque went in one direction for processing and the letter in another.

So it is quite feasible that the cheque could be cashed automatically.

[scoobydoo]

Re: Sainsbury's Bank Plc(HBOS) And Four Debt Collection Companies Against An Individu

I can appreciate that but then why give a final balance figure ? Something must have triggered the fact that it was not just a straight foward payment ?

Also I think that your point explains the post above which does point out that there are variations in each individual case which mean that there are lots of mitigating circumstances that have to be taken into account.

So for example if it could be proved that letters and cheques are not sent to different departments in this case - would you agree my point? That they chose to bank the cheque and head up the reply letter with a different heading - as the customer had not requested an oustanding balance figure.

Also when the error was pointed out to them they still had the choice to refund the payment.

[tomterm8]

Re: Sainsbury's Bank Plc(HBOS) And Four Debt Collection Companies Against An Individu

Cheques are cashed automatically by a number of DCA's.

The crux of the matter here, in my opinion, is that they altered the OP's credit file to show the debt was settled. That is clear evidence to show that Sainbury's contemplated that the acceptance was in settlement of all debt. I continue to hold the opinion that the settlement is good. This act alone is sufficient to establish an estoppel by representation regardless of whether the settlement was otherwise good. [see Moorgate Mercantile v Twitchings [1976] 1 QB 225, CA at 241 per Lord Denning MR.]

I continue to believe that only Sainsburys is liable for any protection from harassment complaint, because under s1 of the act:

(1) A person must not pursue a course of conduct—
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other.

Given that sainsburys informed the DCA that a debt was due, their conduct (as long as within legal limits) was legitimate since they were seeking repayment of a debt they believed due.

[Godzilla]

Re: Sainsbury's Bank Plc(HBOS) And Four Debt Collection Companies Against An Individu

Hello and good evening to you all, I hope your day has been a pleasant one.


Ok, quite a bit to catch-up with, so I will try to explain, in my usual way of course.


So firstly, Scoobydooby Doo(Where are you?) you are nailing it and deserve many scooby snacks.


Yes that's right, you see, because I do have three very important documents that prove beyond doubt and prove beyond any reasonable doubt that the said cheque in my case was not mindlessly banked, by the "Large Organizesation" that Sainsbury's obviously are.

Therefore, the Inland Revenue case does not apply to my case. (Very good)


If any creditor does not want to accept a "Full and Final Settlement", then they(The creditor) must say so, Sainsbury's did give a "Rejection" to my first offer of settlement payment and very clear it was too.
Sainsbury's did not "Reject" this second offer of settlement payment, if the creditor "Rejects" the payment in settlement, then the creditor must say so.


What it is that we are talking about here also, is the logic of reasonable minded persons, and also of the conduct of both the debtor and the creditor, this is important.

There is an intricate part here, in my case, details, tiny details that are not visible to the naked eye, so to speak, meticulously sifted through paperwork has exposed these details, which for my case prove two things.

1. There was no mindlessness in the banking of the said cheque.
2. Further to that, Proves precisely the depth of the conduct of deceit that I talk about.


I do have tremendous documentary evidence, that, when placed together provides a great picture of the series of events that unfolded over this sixteen and a half month period.



In relation to the DCA'S involvement, continued involvement in the harassment side of my case, these DCA'S based their executive decisions to carry-on participating from simply having taken Sainsbury's word as fact.

This "Belief" they had does not have any foundation on which it could rest upon, furthermore this "Belief" of the DCA'S had no qualification that it could rely upon, it is purely a "Belief". So if the DCA'S had of only acted on one occasion, then "Acting in good faith" would be a perfectly acceptable defence for them.


Sainsbury's were the gang leaders(Ring leader) and the other four DCA'S were the members of the gang(The participants), who did what ever the ring leader told them to do.


As for the balance after the settlement being put against another account in my name, well this area too, is deep and complicated, there is no question of doubt, there were two accounts in my name and this other account was not my account.

During the executive level investigation undertaken by Sainsbury's, they(Sainsbury's) informed me that there were two accounts in my name,(Key word here is "Two Accounts"), Sainsbury's informed me of this on many occasions over a five month period, when I asked for an identical hard copy of this "Other" account(Under the DPA) Sainsbury's then backtrack and say the two accounts are infact one/and of the same it's just that there are two "Account Numbers" not two accounts.
My documentary evidence proves that this "Other" account is a seperate, individual and different account to my one, original and only account.


There is no credit agreement to this "Other" account. This is the account Sainsbury's informed the DCA'S of when they(Sainsbury's) unlawfully, illegitimately and recklessly disclosed my personal information to them(The DCA'S).

I hope this clarifies a few things, if not, let me know.


Many Thanks
Godzilla.