Cabot - you really couldn't make this up.

[removalman]

I think this is an interesting story so bear with me...

In 2009 I defaulted on a credit card balance due to Citibank. Fast forward to February 2010 when a DCA called Clarity started chasing me. I made a full and final settlement offer enclosing a cheque (for 10% of the balance) which they banked. They realised quite quickly that they had screwed up; threatened me with lots of case law showing that even though they'd banked the cheque they wouldn't accept it as a full and final payment etc., and they were going to sue me . Of course nothing happened and fast forward another year and Cabot have bought the debt (which as far as I'm concerned doesn't actually exist anymore).

I've made it clear to Cabot that unless they get a Court Order I'm certainly not going to make any further payments as the debt has been satisfied. Its all gone very quiet for quite a while now but the thing that frustrates me is that Cabot have applied a default to the CRA's.

I've asked them to remove it but as they insist that the debt is still due, they have refused.

What remedies exist to deal with this? I really need to get the default notice removed (or even expressed as satisfied).

Can anyone help?

[leclerc]

Re: Cabot - you really couldn't make this up.

I think this is an interesting story so bear with me...

In 2009 I defaulted on a credit card balance due to Citibank. Fast forward to February 2010 when a DCA called Clarity started chasing me. I made a full and final settlement offer enclosing a cheque (for 10% of the balance) which they banked. They realised quite quickly that they had screwed up; threatened me with lots of case law showing that even though they'd banked the cheque they wouldn't accept it as a full and final payment etc., and they were going to sue me . Of course nothing happened and fast forward another year and Cabot have bought the debt (which as far as I'm concerned doesn't actually exist anymore).

I've made it clear to Cabot that unless they get a Court Order I'm certainly not going to make any further payments as the debt has been satisfied. Its all gone very quiet for quite a while now but the thing that frustrates me is that Cabot have applied a default to the CRA's.

I've asked them to remove it but as they insist that the debt is still due, they have refused.

What remedies exist to deal with this? I really need to get the default notice removed (or even expressed as satisfied).

Can anyone help?

Have you got a copy of the letter?
Did you clearly state in that letter that the amount is a full and final settlement of the debt?

Any chance you can post up the case law they quoted?

[leclerc]

Re: Cabot - you really couldn't make this up.

Legal Beagles Consumer Forum - View Single Post - Sainsbury's Bank Plc(HBOS) And Four Debt Collection Companies Against An Individual

Cetelco in this post above explains case law on full and final settlements.

[removalman]

Re: Cabot - you really couldn't make this up.

Thanks for this.

Given that my F & F settlement letter constituted a fairly carefully worded "offer" and by conduct they accepted by banking the cheque I don't think Cabot will go for me. We'll see...

Just need to find a way of dealing with the default.

[leclerc]

Re: Cabot - you really couldn't make this up.

Thanks for this.

Given that my F & F settlement letter constituted a fairly carefully worded "offer" and by conduct they accepted by banking the cheque I don't think Cabot will go for me. We'll see...

Just need to find a way of dealing with the default.

Well, get the documentation to the CRA and then Cabot and state that the debt is already paid and that they have not got the right to default you.

Not sure you might not want to quote the lending code section 35, ie debts that you dispute.

[removalman]

Re: Cabot - you really couldn't make this up.

Here is the letter (with personal details taken out).

Additionally the reverse of the cheque was also clearly notated that this payment was in full and final settlement.

What do you think?

[leclerc]

Re: Cabot - you really couldn't make this up.

Here is the letter (with personal details taken out).

Additionally the reverse of the cheque was also clearly notated that this payment was in full and final settlement.

What do you think?

Did they send out any letter in response to yours with regards to rejecting settlement?

[cappo]

Re: Cabot - you really couldn't make this up.

Well, get the documentation to the CRA and then Cabot and state that the debt is already paid and that they have not got the right to default you.

Not sure you might not want to quote the lending code section 35, ie debts that you dispute.

i read on one of the internet sites last year when i was attempting my full and final that if someone banks a cheque from you in full & final settlement of your debt they can just bank it regardless and still chase you for the rest this was a builder and his customer from what i can remember but the builder did get enforcement action on the outstanding amount. i don,t know if that was an isolated case i suppose it does depend a lot on the circumstances.

[leclerc]

Re: Cabot - you really couldn't make this up.

i read on one of the internet sites last year when i was attempting my full and final that if someone banks a cheque from you in full & final settlement of your debt they can just bank it regardless and still chase you for the rest this was a builder and his customer from what i can remember but the builder did get enforcement action on the outstanding amount. i don,t know if that was an isolated case i suppose it does depend a lot on the circumstances.

I've asked Cetelco to have a look at this thread just because I am not 100% certain that the case the OP has got is in fact legally a full and final settlement. Links above to the two threads do explain some case law but the issue is whether they rejected the F&F and how quickly that rejection came about.

[removalman]

Re: Cabot - you really couldn't make this up.

Attached is their reply and my response. All of which was about a year ago. They found some case law to support their contention but equally (as has been demonstrated on this forum) there is case law to show that this debt should be regarded as settled. Of course if they thought they actually had a winnable case perhaps they would have issued proceedings a year ago. I guess the whole thing was handed back to Citi who then parcelled it up in a package of debt bought by Cabot.

Only the acquisition of the debt by Cabot more recently and the subsequent default notice has brought this matter up again. I honestly thought it had gone away for good.

Cabot have ignored my requests to remove the default and in the absence of their agreement do you think I have enough to approach the CRA's or is there another route?

[leclerc]

Re: Cabot - you really couldn't make this up.

Attached is their reply and my response. All of which was about a year ago. They found some case law to support their contention but equally (as has been demonstrated on this forum) there is case law to show that this debt should be regarded as settled. Of course if they thought they actually had a winnable case perhaps they would have issued proceedings a year ago. I guess the whole thing was handed back to Citi who then parcelled it up in a package of debt bought by Cabot.

Only the acquisition of the debt by Cabot more recently and the subsequent default notice has brought this matter up again. I honestly thought it had gone away for good.

Cabot have ignored my requests to remove the default and in the absence of their agreement do you think I have enough to approach the CRA's or is there another route?

The case law in the highlighted post I have given would suggest the opposite, ie that they have rejected the offer and have done so within a reasonable period of time. As I said, I have asked Cetelco to have a look at the thread so that it can be more specific as to whether it is acceptance or not.


EDIT: D&C builders case
D C Builders Ltd v Rees - Wikipedia, the free encyclopedia

[cappo]

Re: Cabot - you really couldn't make this up.

Here is the letter (with personal details taken out).

Additionally the reverse of the cheque was also clearly notated that this payment was in full and final settlement.

What do you think?

normally a creditor will accept 30-60 percent of the owed balance, have you any way of getting some extra money off friends/relatives etc and are you able to offer them a bit more? very few creditors wouid accept 10 percent although some undoubtabley wouid

[Garlok]

Re: Cabot - you really couldn't make this up.

Hi RM,

We have just had a success with F & F but we had to deal with it very carefully as you are dealing with a complex piece of Common Law contract which is a minefield. I am trying to complete a full write up of our case together to get up on here for discussion.

The letter from Clarity is only giving you part of the story. Case law dating right back to 1602 (yes 1602) in the infamous Pinnel case, still oft quoted, provides no hard and fast rules to go by. Lloyd LJ sitting in the court of appeal in Stour Valley was very particular about the time frames involved and it has since become standard practice to advise creditors of their decision to NOT accept the cheques as full & final settlement immediately AT THE TIME THEY PRESENT THE CHEQUES FOR PAYMENT otherwise they leave themselves open to the defence if they go to court that they were in accord with the debtor.

Unfortunately it seems to me from the datings that they were fairly quick to respond to you (about 2 weeks?) which is about the timeframe accepted by the courts for "accord, performance and intent".

The other thing from your thread, it would appear that the cheques were your own. Had they been from a third party then you would be on firmer ground. Had they not informed you immediately but still proceeded to cash the cheques then they would have made a legally binding agreement with the third party as to the terms contained within the covering letter NOT YOU. Hence they have no cause of action.

Lloyd LJ also made a distinction between agreements made directly between client/creditor and those agreements handled by a lawyer. For the cost of three solicitors' letters it is much better to use them and not try to do this yourself. Everything then is handled by third parties (not you), it is watertight, Lloyd LJ on Stour Valley builders moves in your favour and becomes very unlikely that what has happened to you would have happened.

Frankly the mechanism of F & F is deceptively simple and elegant, the underpinning law is defintiely not. It is a minefield.

I will have a further look and see what if anything might be redeemed in defence.

regards
Garlok

[cappo]

Re: Cabot - you really couldn't make this up.

Hi RM,

We have just had a success with F & F but we had to deal with it very carefully as you are dealing with a complex piece of Common Law contract which is a minefield. I am trying to complete a full write up of our case together to get up on here for discussion.

The letter from Clarity is only giving you part of the story. Case law dating right back to 1602 (yes 1602) in the infamous Pinnel case, still oft quoted, provides no hard and fast rules to go by. Lloyd LJ sitting in the court of appeal in Stour Valley was very particular about the time frames involved and it has since become standard practice to advise creditors of their decision to NOT accept the cheques as full & final settlement immediately AT THE TIME THEY PRESENT THE CHEQUES FOR PAYMENT otherwise they leave themselves open to the defence if they go to court that they were in accord with the debtor.

Unfortunately it seems to me from the datings that they were fairly quick to respond to you (about 2 weeks?) which is about the timeframe accepted by the courts for "accord, performance and intent".

The other thing from your thread, it would appear that the cheques were your own. Had they been from a third party then you would be on firmer ground. Had they not informed you immediately but still proceeded to cash the cheques then they would have made a legally binding agreement with the third party as to the terms contained within the covering letter NOT YOU. Hence they have no cause of action.

Lloyd LJ also made a distinction between agreements made directly between client/creditor and those agreements handled by a lawyer. For the cost of three solicitors' letters it is much better to use them and not try to do this yourself. Everything then is handled by third parties (not you), it is watertight, Lloyd LJ on Stour Valley builders moves in your favour and becomes very unlikely that what has happened to you would have happened.

Frankly the mechanism of F & F is deceptively simple and elegant, the underpinning law is defintiely not. It is a minefield.

I will have a further look and see what if anything might be redeemed in defence.

regards
Garlok

i agree garlok my f&f,s were done through a dmp company for that same reason as you,ve said then your well covered ,as trying to present payments yourself can leave you in this position and of course creditors arn,t obliged to take a lesser payment.

[debtisbad]

Re: Cabot - you really couldn't make this up.

I think this is an interesting story so bear with me...

In 2009 I defaulted on a credit card balance due to Citibank. Fast forward to February 2010 when a DCA called Clarity started chasing me. I made a full and final settlement offer enclosing a cheque (for 10% of the balance) which they banked. They realised quite quickly that they had screwed up; threatened me with lots of case law showing that even though they'd banked the cheque they wouldn't accept it as a full and final payment etc., and they were going to sue me . Of course nothing happened and fast forward another year and Cabot have bought the debt (which as far as I'm concerned doesn't actually exist anymore).

I've made it clear to Cabot that unless they get a Court Order I'm certainly not going to make any further payments as the debt has been satisfied. Its all gone very quiet for quite a while now but the thing that frustrates me is that Cabot have applied a default to the CRA's.

I've asked them to remove it but as they insist that the debt is still due, they have refused.

What remedies exist to deal with this? I really need to get the default notice removed (or even expressed as satisfied).

Can anyone help?

This is the first time that I have mentioned this on here, as I have only written about relatively recent debts sine 2005 on LBs. However, I did owe out about 35 thousand pounds way back in the mid-nineties after investing in three properties during the boom, which subsequently nose-dived. I did exactly the same as you. I sent cheques offering a settlement of 10% in full and final, etc. I also wrote this on the back of the cheques. On the cheques and the letters I also wrote that they should not be cashed unless accepted as in full and final settlement. The cheques were duly cashed by Natwest and MBNA. I never heard from MBNA ever again. Natwest wrote a few times, including sending me "refund" cheques (which only reinforced the fact that they had cashed my full and final settlement cheques), but I sent back to Natwest. They gave up after a short while. Never heard anything back Natwest after that. At the time, every time Natwest wrote to me I sent a template letter stating over and over again my original offer was clearly a full and final offer and if they wanted to dispute it, I would be happy to go to court and sort it out there. Obviously, they did not think it worth it and threw in the towel.

Sometimes with these things, it's not just what the law says or implies, if you are awkward enough they tend to give up and go for easier money from weaker people.