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Stuart J
Stuart J, Solicitor
Category: Law
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Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street Practice
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Credit card agreement in default 2004.1. The creditor accepts

Customer Question

Credit card agreement in default 2004.
1. The creditor accepts payment of a lower sum then was originally due under the contract.

2. The creditor after sometime refuses to accept further payments and closes the account. The debtor continues to force payments to be accepted at a bank. Eventually they are rejected. No court proceedings are instigated until 2012.

3. The creditor makes an offer to accept payment half the value of credit which is proposed to the debtor in writing in full and final settlement of the whole debt.

4. The debtor makes a smaller offer to try and buy the debt back. The original creditor accepts payment a week after receiving it.

5. The creditor accepts the lower sum and does not make contact with the debtor for 4 years. The original creditor sells the debt to a debt collecting agency.

6. The creditor fails to send a letter of acknowledge of the payment during those 4 years and fails to send every six months statements. No statements have been sent to debtor from 2007 to date.

7. 4 years later the creditor sells the whole debt in 2010 to a debt collecting agency who buys it.

8. The new debt collecting agency withholds disclosing all payments made to the original debtor throughout court proceedings and obtains an order and only discloses in writing one payment of£ 30 in 2009 stop them being statute barred.

9. The original creditor and new debt collecting agency refuses to disclose all payments made by debtor to the original lender/creditor and refuses to send up to date payment statements and the letter that the original lender accepted the lower offer to pay of the debt in 2009.

10. The new debt collector fails to disclose again 'all bank statements' and asks the debtor he owes the whole amount.

11. The question is the lower amount accepted by the original creditor a binding contract to settle the whole contact 4 years ago - what is the remedy in law?

12. Can the debtor ask for all payments made court proceedings and if they are not provided what are the remedies in law?

13. The new debt collecting agency refuses to send all payment statement to date, what is the remedy in law?
Submitted: 3 years ago.
Category: Law
Expert:  Jo C. replied 3 years ago.

Hi. Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

 

Sorry but I'm not sure what your question is about this?

 

In short, the new debt collection company won't accept the lesser sum?

Customer: replied 3 years ago.

 


No. the original lender asked me to pay a lesser amount 50% less amount in 2009 then was owed to them. After paying this money I did not hear from them until the new debt collecting agency issued in 2012 court proceedings asking me to pay the full amount owed to the original lender.

Expert:  Jo C. replied 3 years ago.
Yes, you were made a full and final settlement offer in 2009?

But you didn't pay it? Or you did?
Customer: replied 3 years ago.

 


For Jo C,



Yes, I paid not waht was asked by the lender letter. I spoke to the lender and informed them I could not afford the sum they wanted, but I could pay a lesser amount which I sent to them via a postal order which they cashed in december 2009.

Expert:  Jo C. replied 3 years ago.
Was it agreed that was in full and final settlement?
Customer: replied 3 years ago.

For Jo C,


I went to the bank and they informed me that they had received the money and the debt was written off.

Expert:  Jo C. replied 3 years ago.
Ok.

But did you offer that sum in full and final settlement? Did you use those words?
Customer: replied 3 years ago.


Yes, something to that effect. I do not have the exact words from the letter which I sent with the payment.

Expert:  Jo C. replied 3 years ago.
That is going to be an issue I'm afraid.

If this was an offer that complies with the full and final settlement requirements then the debt is written off.

However, I'm afraid that 'words to that effect' is not adequate. It either is a full and final settlement offer or its not.

That said, its quite likely that this is just a debt collection company ruse. Sometimes creditors sell debts that they have written off to debt collection companies to see if something can be recovered by them. Often they do that with time barred debts.

If you are of the view that this was a full and final settlement offer which was accepted then all you need to do is send them one letter setting out your position on the point and invite them to sue if they disagree.

I note that you seem to be saying that they are suing? That would be fairly unusual for a debt collection company. Usually their remit is just to call and write to try to recover.

If they do sue then you can defend on the basis that the loan was written off. Even if you cannot produce the original letter I presume you can show a paper trail to the company that there was a largish sum of money paid to them which is consistent with a full and final settlement payment. You only have to satisfy them on the balance of probabilities that your account is more likely to be true than theirs. Ultimately they cannot deny what was received by the original creditors.

Can I clarify anything for you?

Jo
Customer: replied 3 years ago.

For Jo C,


 


Are you saying I should sue the original lender for selling a debt they informed me was written off or the new debt collecting agency?

Expert:  Jo C. replied 3 years ago.
No, there's no basis to do that.

Just that if they do sue you then you can defend on the basis that it was a full and final settlement - if that is your recollection.
Customer: replied 3 years ago.

For Jo C,


The matter went to court and directions were issued in Jan for the debt company to serve and file all evidence 14 days prior to the hearing or their claim would be struck out.


They did not send me any evidence 14 days, but on the day of the hearing in fib they sent me at home 'by special delivery' their witness statement and account statement from 2004 to 2007 only.


In my absence from court an order for me to pay them the debt was made which I appeal.


The debt company agreed to set aside the order made in my absence on the issue of proportionality of costs to the parties and because I was absent from Court under CPR 27.11 a rehearing could take place.


At the rehearing in august the debt company failed to send me all bank statements 14 days from 2007 to date. What action can I take? Their witness that the court relied on their evidence did not come to court.


They say to me in Sept that because an order was made in Aug they do not have to give me all my bank statements and correspondence from 2007 to date which the original lender gave them in 2010.


The court took a view that if I did not have a letter sent to the original lender then the debt is still owed.


What is your view if all payment statements were not disclosed to me at that rehearing in august 2013?


Can I ask for all bank statement which I did have in Aug at the rehearing. The debt company refuses to send them to me because proceedings have come to an end?

Expert:  Jo C. replied 3 years ago.
If they have that information they you can ask the court to direct that they disclose it to you.

You can get your bank statements from your bank for the last six years.
Customer: replied 3 years ago.

For Jo C,


 


For Jo C,


The debt company said to the court and me they only had in Feb. that they have statements of payment up to 2007 only.


I did not mention that during the period I lodged an appeal. The debt company wrote a letter to the court in July stating that a further payment was made by me in 2009, and they were not time barred to seek recovery of the debt.


In Feb. the debt company did not inform the court or release any statements showing I made that final payment to the original lender in 2009.


I informed you this was the final payment I made to the original lender in settlement of the full debt.


I want to know in these circumstances is the debt company claim can I apply for it to be set aside and struck out for failing to disclose evidence they relied upon at the rehearing, but did not produce any payment statements from 2007 to date which I need at present to deal with outstanding issues on this debt.

Customer: replied 3 years ago.

You replied





01 October 2013 18:17 EST





For Jo C,


 


For Jo C,


 


The debt company said to the court and me in Feb. that they have statements of payment up to 2007 only.


I did not mention that during the period I lodged an appeal. The debt company wrote a letter to the court in July stating that a further payment was made by me in 2009, and they were not time barred to seek recovery of the debt.


In Feb. the debt company did not inform the court or release any statements showing I made that final payment to the original lender in 2009.


I informed you this was the final payment I made to the original lender in settlement of the full debt.


I want to know in these circumstances is the debt company claim can I apply for it to be set aside and struck out for failing to disclose evidence they relied upon at the rehearing, but did not produce any payment statements from 2007 to date which I need at present to deal with outstanding issues on this debt.



Expert:  Jo C. replied 3 years ago.
I will opt out for others as this has turned into a civil litigation question which is not my area.

Somebody will be along soon.
Expert:  Stuart J replied 3 years ago.
Thank you for your question here on Just answer. It is my pleasure to try and assist you with this today. Please bear with me if I need to ask for any further information from you in order for me to be able to advise you fully. My name isXXXXX and I am a practising solicitor. I have been an expert on this website in UK law since 2008. During that time, as you appreciate, I have answered thousands of questions from satisfied users on a variety of subjects.
Because we are all in practice with clients and court and other users, I might not always respond in minutes, particularly evenings and weekends. Please bear with me in that case. I will be online and off-line all day most weekdays and weekends.

I have been asked to look at this by my colleague. How much is the debt owed?
Customer: replied 3 years ago.

For Law Denning,


The debt was for £999.00 plus cost £1250.00 approx.


 


I have not claimed my cost as Litigant Acting In Person over the past 12 months which will be in the region £1800.00 approx.

Expert:  Stuart J replied 3 years ago.


On what basis are they claiming costs bearing in mind this should
be small claims court? Have you raised this issue?





If the debt was written off as opposed to an agreement being
reached, they can still pursue you for that money.



Why can't you simply produce proof of the payments you may have
made. The lender can simply say there were no payments and therefore there are
no statements.



They cannot rely on evidence they have not produced in which
case, it simply comes down to whether the judge prefers your version of events
against the theirs which is exactly what my colleague told you earlier on.

Customer: replied 3 years ago.

For Law Denning,


Law Denning and my reply


On what basis are they claiming costs bearing in mind this should
be small claims court? Have you raised this issue?


Reply: The judge refused their cost but gave the application fees and interest.



Reply: They just would not accept my payments and closed my bank account.



Reply: I made payment monthly at the bank and the cashier told me that they were not allowed to accept them, The Cahier send by default and gave me a receipt. The Cashier wrote on the receipt that i could not make payments because the bank closed my account.


If the debt was written off as opposed to an agreement being
reached, they can still pursue you for that money.


Reply:


If the bank closed my account in the circumstances explained above what do I do now?


Why can't you simply produce proof of the payments you may have
made. The lender can simply say there were no payments and therefore there are
no statements.


Reply: I can do that, but on 16th July 2013 the debt company mentioned one payment that I made to the bank in 2009 which was the final payment as I explained to Jo C. I only need the letter and bank statement of 2009 of my final payment which they do not want to send to me because proceedings have come to an end. In light of that fact, the court did take a view I could make an application to get all bank statements. What do you say I should do?


They cannot rely on evidence they have not produced in which
case, it simply comes down to whether the judge prefers your version of events
against the theirs which is exactly what my colleague told you earlier on.


 




Sometimes my answer may not be what you want. I try to be as honest as possible.
Reply: I do not mind an honest answer.


 


Can you point the way forward...and cab I claim my costs or notify them first?

Expert:  Stuart J replied 3 years ago.


I am off-line now until tomorrow but will pick this up then.

Perhaps I am being stupid but if proceedings have come to an end,
where are we going with this?



This is small claims court and you will not get your costs as
litigant in person (the court rate is £18 per hour) in exactly the same way as
the claimant did not get theirs.



To be honest, I am surprised that they are continuing to pursue
the debt for £999 in view of the fact that they will not get their costs back
in the Small Claims Court.

Customer: replied 3 years ago.

For Law Denning,


How do I get my costs back? If I can prove that the debt company has refused over the past 12 months not disclosed all my bank statement and correspondence. The Debt Company has not followed directions and within 14 days of any hearing to disclose all bank statement can I get the present order set aside/claim struck out?


 


If I had the final payment statement and letter dated 2009 - the judge said to me this would be helpful. That is why I want all my bank statement which was not provided to me over the past 9 months. If I get the statements can I get at that stage my costs?


Any other information will help.


 


Can I ask the OFT and Trading Standards Office to investigate the debt Company and their conduct to date?


 


Can I reply on the time spent on this matter and prove that the costs are now due to delays as a result of the debt company being obstructive and not sending me statement which would help my case?


 


Can you act for me at court and your costs?


 

Expert:  Stuart J replied 3 years ago.

You cannot recover costs in small claims court.

The claimant has to have acted grossly unreasonably and whilst I think that is quite true, for court purposes you have no proof of that and in any event it probably isn't enough in courts eyes. Sorry

 

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