Arrow/Shoos claimform - old MBNA debt - settled by Tomlin - drydens now write saying pay us not Arrows?

[AndyOrch]

It would be beneficial to have professional representation considering thier latest tactic...nasty beggers Part 36 offers...unless your case is watertight.

[toxicdebt]

I found out today that I can only get legal aid for a house repossession case, which this isnt. Solicitors want £350 to review the case and the same again to represent me at the SJ and another £350 for the Full Hearing. So thats a non starter.

 

Ive been giving their offer some thought. I'm not bothered about the total owing increasing as long as the court allows me to make monthly payments I can afford and doesn't immediately send the bailiffs in to recover it instead. If that is a possibility I would try to negotiate an offer.

 

Ive drafted the following to send via email and am worried that by telling them how much I earn they could subsequently use that against me somehow. Is this possible??

 

Here is my Draft email to Shoos...

 

WITHOUT PREJUDICE SAVE AS TO COSTS

 

 

 

Thank you for your offer of amicable settlement for the debt you allege is owed to your client - Arrow Global Guernsey LTD via the above referenced letter delivered to me by Royal Mail.

 

I'm a little confused by the wording of your offer. There seems to be some text missing. One page ends mid sentence and the next starts with an unconnected new paragraph. The letter also states a deadline of the 2nd July, despite this date being in the past and prior to the date of your letter - 19 July... ???

 

Firstly please allow me to inform you of my current financial situation..

I earn £500 per month, topped up with £263 in Tax Credits.

 

 

As you can see to accept your offer I would need to pay £1000 a month in order to comply with your 289 day limit. I simply am not in a position to afford this.

 

 

As you and your client have previously pointed out - I own my own home (mortgaged - interest only repayments). A simple valuation would inform that the property is currently £30000 in negative equity. Therefore I cant raise any funds from it. Nor would a charging order be granted under such circumstances.

 

 

Given the above circumstances you will appreciate that whether its £9000 or £900,000 my options are limited in the extreme.

 

 

 

If I were to accept a Tomlin order offer I could probably at a push afford around £10 a month, possibly £20 If I cancel some Insurance policies on the house, which would mean a vastly extended term to repay the alleged debt reduction offer of £9000.

 

 

As you are aware I am defending this case as I believe I am in a good position. However I'm sure you understand that even if I loose, the Court will not make me pay more than I can afford each month.

 

 

 

I would also need to know the details of the offer such as a full schedule giving details of what happens in the event of default and costs etc. I would also insist that the order is not registered with any credit reference agencies.

 

 

With regard to your part 36 offer. As above I cant afford to accept this. The fact you state you will add interest which effectively could triple the total is of no consequence to me as I'm only interested in affordable monthly payments as I don't have the money to pay off the alleged debt offer immediately.

 

 

 

Due to the limitations of the deadline set I would kindly request that you initially respond via email rather than posting.

 

 

 

Yours Faithfully

[AndyOrch]

Yes Toxic...it is what is it...and you cant get blood........

 

Unless their PT 36 offer betters the Court judgment(which it cant)...then it wont come into play....then the judgment can be dealt with in the usual manner.

 

Andy

[toxicdebt]

Right then... Onwards!

 

Ill send Shoo's the email and see what they come back with. If they wont play ball we go on to the SJ hearing and then (hopefully) full hearing

 

At best I win, but if i loose at least Ill (finally) get affordable payments.

 

Edited July 29, 2013 by toxicdebt

[toxicdebt]

Ive had a reply to my email from Shoo's, along with an income & expenditure form that I've attached at the bottom of this post.

 

Question is; Should I be sending them a Income & Expenditure form?

 

Thank you for your email.

In response to your points, the reference to a response to the Caldebank offer by 2 July was a typographical error - it should have stated 2 August 2013.

 

As to settlement, we note that you have rejected the offers due to your financial circumstances. It would be useful if we could get a better understanding of your financial position and ask that you complete and income and expenditure form and, if you are prepared to settle this matter before the hearing on 6 August 2013, to contact me as soon as possible with this detail so that I can seek my clients instructions. You can complete it, save it and email it to me.

 

If our client is willing to accept your settlement proposal it would need to be embodied in a Tomlin Order. This is a document setting out the terms of settlement and the obligations of the parties to perform in relation to the agreement. This would include a term setting out the payments that you are due to make our client and when, whether the payments would be reviewed for example on a six monthly basis, and also what would happen in the event of a default. Our client would like to protect its position by ensuring that in the event of a default that it be at liberty to apply to the court to lift the stay in the proceedings and enter judgment against you for the full amount claimed giving credit to payments made. No interest is accruing on the account and our client has not claimed for court interest in the proceedings so the balance will stay the same save as to the reduction following your payments. The effect of settling by way of a Tomlin order is that the proceedings will be stayed. This would mean that there would not be a CCJ registered against you, unless ofcourse you defaulted n the arrangement.

 

In relation to your point suggesting that the court will not make you pay any more than you can this is not correct. if you are found liable to our client in relation to this debt the court will enter a judgment against you for the sums that you are found liable for and we would ask, and it is usual at a trial or final hearing, for a judgment to be granted forthwith. Thus payment would be ordered to pay immediately by virtue of the judgment. In addition, the CCJ will be registered against your credit file, unless you arrange to pay the judgment within one calendar month of the date of the judgment. I note what you are saying in relation to your financial position but this does not mean that the court will not find you liable. In practical terms it may be that you can not afford to pay the judgment as ordered by the court and in those circumstances our client would then consider enforcement action. Enforcement action does include considering an application for a charging order. Whilst the property may not have any equity in it now, at some stage in the future that is likely to change and our client would then expect to be paid out of the proceeds of sale when you eventually come to selling your property.

You have also asked about costs and in the event that our client is successful at trial our client will seek the recovery of all its costs incurred in these proceedings, which will be assessed by the court and the court will make an order as appropriate.

As to the proceedings I have instructed a barrister to represent us and we will be seeking an order from the court on 6 August 2013 to strike out your defence and seek summary judgment against you for the full amount claimed, which will be an immediate judgment as explained above, and we will also ask for a court order for payment of our clients costs.

 

Whilst I hope you find this email useful please note that because I represent Arrow I am not in a position to provide you with legal advice so please ensure you seek legal advice if you have any queries. You can approach a free advice agency such as the Citizens Advice bureau if you are unable to instruct a solicitor.

 

I look forward to hearing from you as soon as possible.

 

Yours sincerely,

Edited August 1, 2013 by toxicdebt

[citizenB]

Whilst they are correct in that in the event that you were to lose, the judgment order would be forthwith - they seem to forget that you would then be able to submit an application to vary the order into instalments.

 

I will bring this to the attention of andyorch for you.

[toxicdebt]

I noticed that too.

 

Many thanks citizenB

[AndyOrch]

Error on their part they did not propose a Caldebank offer they offered a Part 36.

 

However...Toxic push for the Tomlin Order...this could stay the claim without judgment...you must provide a I&E on this instance and a realistic monthly payment plan.

 

Regards

 

Andy

[toxicdebt]

Cheers Andy. Ive sent it off.

[toxicdebt]

After a volley of emails & I&E form sending it looks like the SJ hearing is going ahead tomorrow. They rejected my offer of £10 a month (and £20) and Ive rejected their final offer as I think they wont get a charging order from the court as the house is £30K in negative equity.

 

Here is their final reply...

 

I have now received confirmation of my clients instructions. They are unable to accept your offer of payment. Whilst my client can see that you are unable to afford any higher monthly payments, what with reference to your income and expenditure details, our is client is not however prepared to enter in to a settlement agreement that will take more than your life time to see the debt repaid.

However, as a final attempt to settle this matter before tomorrow's hearing my client has confirmed that it would be willing to forgo the recovery of a lot of it's legal costs, and seek fixed costs only in sum of £1,025 only to be added to the judgment debt, compared with the full amount of costs in sum of £3,235.20 which our client has actually incurred.

Then our client would seek to secure the judgment against your property and seek the monthly payments in reduction in accordance with what you can afford, once that security is in place. Therefore, if at that stage you can only afford £10 per month, provided you can support this by updated income and expenditure details then our client would be willing to accept this subject to 6 monthly reviews as long as the property remains in your name.

If you are agreeable to settling on this basis then please confirm the same in writing and I shall send you a consent order to sign and return and I shall arrange to fax it to the court and excuse the parties attendance. Alternatively, if you are not agreeable, then please confirm and I shall update the barrister attending on our behalf to proceed with the application for summary judgment at the hearing tomorrow.

 

Back to court tomorrow then...

[AndyOrch]

They would only get a restriction if the debt is solely in your name and the mortgage is joint Toxic. They simply want their security and they will then agree to 200 years at £10.

 

Don't forget tomorrow no oral evidence from any of their party.

 

Best of luck

 

Andy

[toxicdebt]

Just got back from court...

 

Summary Judgment Application thrown out! HA!!!!!

 

By eck it feels good!

 

*calm Toxic, calm*

 

Ill make a coffee and then pop the details up. Some of the Judges comments are really quite interesting.

[AndyOrch]

So much for all their pressure pre hearing...well done Toxic...I await with baited breath...........

 

Regards

 

Andy

[Old Cogger]

So much for all their pressure pre hearing...well done Toxic...I await with baited breath...........

 

Regards

 

Andy

 

 

So are we all!

[toxicdebt]

They sent the same Barrister as last time who was again very pleasant and we chatted about owt & nowt for half an hour before going in. We had a different deputy district judge this time. He was so much more professional than the last one, and started by saying how nice it is to see both parties getting along with each other - The court usher had told him we were chatting away & getting on like a house on fire.

 

Their Barrister started by going through the points on their WS adding evidence as he went so I interrupted him and asked if he was allowed to give oral evidence as they are debarred. The judge said it was not my turn to talk and asked him to continue. However after another few mins he stopped him talking and told him that "this was not a mini trial" and he would not listen to evidence and to stick to the reasons for wanting a SJ. this rattled the Barrister bloke somewhat.

 

He then asked me if I had anything to say so I told said that the fact they have had my WS since March and only now decided to submit an application for a SJ led me to believe that they were attermpting to avoid full trial, possibly because they are debarred from giving oral evidence at trial and that they know they do not have proof of the points I make in my WS where I put them to strict proof such as sending the NoA etc.

 

The Barrister then told the judge that the fact they had said in their WS that the NoA was sent is proof alone as it is a signed statement of truth. The judge didnt like that and told him it was such instances that demand trial - "you say you did, Mr Toxic says you didnt, is that not what a trial is for Mr Barrister?". The Barrister said they had evidence that the NoA was sent. The judge then said well that should be produced at trial. (remember they still have not served a trial WS, just one for the SJ). and reminded him again that this was not a mini trial.

 

The judge then rambled on about a cpr rule and a case in point, Rivers vs somebody or other, and told the Barrister that he would not allow his application and added that he was not happy it was submitted just a week or so before the trial date. I think he was hinting that he had wasted court time. He said the full trial would take place and he would like to keep it as simplistic as possible so not to confuse the defendant with legal speak. He sugested that each point be gone through in tick box style to determine the outcome.

 

The Judge then said that "£11k may not seem a lot to the claimant but I am sure it is a lot to Mr Toxic, therefore we need to allow the correct amount of time for the hearing. The trial was allocated 1.5 hours which was originally suggested by the claimant. This is nowhere near enough time". He then asked if 3.5 hours would be more suitable. I nodded in a non understanding sort of way and the Barrister looked rattled but reluctantly agreed.

 

The Judge spent quite a bit of time telling the Barrister that Mr Toxic should "have his day in Court" and that if he puts you to strict proof then you must provide it at trial. Because of this he eventually said to me that I should not think he is biased towaard the defence (I couldnt hide my small smirk at some points, wrong I know, and ill not do it again) but I was entitled to a full hearing.

 

The Judge finally awarded costs to me and rolled them over to the next hearing (TBA sometime in October)

 

Questions:

Its quite obvious that they are going to ignore the barring order and spew evidence at every opportunity. Today when I tried to interrupt and stop him, I was told (politely) not to talk, that id get my chance later. How do I stop them giving oral evidence then if I cant talk while they are?

 

Their WS... They still have not served one on me (other than the SJ WS). Can they serve one now they are debarred?

 

Costs... Arrow global have repeatedly sent me Costs Estimations. I have not. Costs have been awarded to me for their failed SJ app, do i need to do anything like state how much I want etc. Should I have been sending estimations?

 

Is it still okay to try to reach an agreement out of court or should I wait for trial now?

[AndyOrch]

Questions:

Its quite obvious that they are going to ignore the barring order and spew evidence at every opportunity. Today when I tried to interrupt and stop him, I was told (politely) not to talk, that id get my chance later. How do I stop them giving oral evidence then if I cant talk while they are?

 

Their WS... They still have not served one on me (other than the SJ WS). Can they serve one now they are debarred? Yes they are debarred from giving oral evidence but any WS that is submitted is futile as it cant be proved under oath orally.

Costs... Arrow global have repeatedly sent me Costs Estimations. I have not. Costs have been awarded to me for their failed SJ app, do i need to do anything like state how much I want etc. Should I have been sending estimations? Not necessarily but you can now submit a Bill of Costs for today in anticipation to the Claimant (not the court at this stage) Time for research /printing/travelling and time off work.

Is it still okay to try to reach an agreement out of court or should I wait for trial now? Mediation can continue up until the trial and even during which Im sure they will be quite keen to commence.

[citizenB]

Excellent news, Toxic

[toxicdebt]

Thanks C B.

[toxicdebt]

One month to my hearing now.

I was wondering do I have to prepare any more paperwork for the hearing. The claimant & the court has a copy of my Witness statement. The court papers simply state the date and time for the hearing and doesn't say I have to submit anything although im aware of the term "Court Bundle". Should I be preparing one and what is it exactly?

(I've still not had the claimants WS yet either. Its only 7 months overdue now lol)

[AndyOrch]

Refer to the Notice of Allocation Toxic the timetable /dates and requirements should be listed.

 

Andy

[toxicdebt]

Thanks Andy. The original schedule just says that the hearing date will be arranged. Meanwhile....

 

Shoos have sent a new Tomlin offer. (attached below).

After originally flatly refusing my Tomlin offer of £10 pm and then agreeing if they could put a charging order on my house (which is £30K in neg equity) they have now sent a third offer without the charging order.

 

A few observations: They incorrectly state that the judge threw out their Summary Judgement application due to "Technical Issues". and that he was not prepared to conduct a 'mini trial'. What he said was that their Barrister was attempting to turn the Summary Judgement into a mini trial and that he must prove that a summary judgement was justified without giving evidence that would be used in a full hearing.. He went on to say that I had prepared well and I deserved my day in court, pointing out that the points I had included in my witness statement such as the invaliditity of the Default Notice and the two application forms were indeed viable and needed to be dealt with within a full hearing.

 

The other worrying thing they point out in their letter is the line "Our client is positive about the outcome at trial.... For the reasons set out in our witness evidence filed with the court in preparation for the hearing on 6th August".

This evidence was a short skeleton augment. Which their barrister attempted to use again in their SJ app hearing. They have not served a Witness Statement to either me or the court - just this Skeleton Argument which it seems they will rely on again at the full hearing - Are they allowed to do this seeing as they are debarred from giving oral evidence?

 

After their SJ app hearing I asked their Barrister if they were hell bent on getting a charging order. He said "seems that way". I replied "And Im hell bent on not allowing that seeing as the property is £30k in negative equity, but I am open to Tomlin offers without a charging order".

 

It seems they have finally caved in on that one.

 

I'm beginning to think they getting desperate to avoid a full hearing.

 

 

[ATTACH=CONFIG]46627[/ATTACH]

[AndyOrch]

Not exactly Toxic...they have just failed to refer to it...the above now includes costs of £3.4K and is only a proposal...not a TO.

 

Andy

[toxicdebt]

I've now received their TO Andy (they posted it hard copy so I could sign and return).

 

It says they will accept £20 pm without mention of a charging order. I previously verbally offered £10, possibly £20 at a push per month to their Barrister but told him no deal with a charging order. As you state, they want to add on all their costs to date, and say that the amount would be reviewed every 12 months, with the possibility to ask the court to decide the amount if we cant agree.

 

Ill scan it in and post it up tomorrow.

Edited September 29, 2013 by toxicdebt
typo

[AndyOrch]

Not on the open forum Toxic ..Tomlin Orders are subject to confidentiality terms...if you would like to PM me a copy for my perusal .What are your initial thoughts...costs preferable to Charging Order?

 

Regards

 

Andy

[toxicdebt]

Eek! Thanks Andy, I didnt realise that. Ill PM it to you

 

It will take 60 years to pay off at £20 pm. Ill be dead long before then anyway. Im not bothered about what they add on in the way of cost, but I do not want a charging order on my home - especially as its in £30k NE - as I would like to offload it when I retire and rent a place for the rest of my days (its an interest only mortgage). A charging order would just add to the improbability of that happening and could possibly leave me with nowhere to live in retirement.

 

Im still undecided whether or not to go to a full hearing. I was really encouraged by the last hearing (SJ), and if I lost the only difference would be a CCJ against my name. I'd also possibly be able to vary the order to less than £20 too. However I need to weigh up the restrictions of having a CCJ.

 

Im also really confused about the claiment being debarred from speaking at trial as their Barrister has, at the last two hearings, just blurted everything out with his skeleton argument. How do I actually stop him doing it again? Im wondering if they will attempt to finally submit a WS and how to stop the court from allowing the Barrister using it at the hearing, and if they dont submit a WS what will happen.

 

Decisions decisions.