Me v nationwide credit card claim - resolved by tomlin order

[myboro]

OK - passed this to a solicitor and seemed to be going well - now no fee.

 

But now just got this from them, appears to suggest a second default notice can be accepted in my case - any advice please

 

" I write further to our telephone conversation yesterday evening.

 

As discussed, the Claimant has previously been given permission to amend it Particulars of Claim and are seeking to rely upon a fresh default notice. Unfortunately, the fresh default notice upon which the Claimant seeks to rely is compliant with the Consumer Credit Act and Regulations. As such, we feel consider it to be in your best interests to settle this claim by way of a Tomlin Order whereby each party bears its own costs.

 

On 21st September 2010, the Claimant made an Application to the Court requesting permission to amend its Particulars of Claim. The application was made by the Claimant who requested that it be dealt with ‘without a hearing’ despite the fact that we had made it known to the Claimant that we would contest such an application. The reason for the Claimant making an application to amend it Particulars of Claim was to allow for the provision a fresh Default Notice.

 

On 29th September 2010, upon reading the Claimant’s application, District Judge **** made an Order that the Claimant be granted permission to amend its Particulars of Claim. This Order was made on the Court’s own motion as a result of the Claimant requesting that the application be dealt with ‘without a hearing’.

 

Upon seeking advice from Counsel, we made an application to the Court requesting that the Order of District Judge Eddon dated 29th September 2010 be set aside and a hearing date set.

 

On 11th October 2010, District Judge Eddon made an Order setting aside his previous Order of 29th September 2010 and listing the application for hearing on the next available date.

The hearing of the applications subsequently took place by way of telephone conference before District Judge ****. Unfortunately, District Judge ***** took the view that allowing the Claimant to amend its Particulars of Claim would not cause any significant prejudice to our Defence. As such it was Ordered that the Claimant be granted permission to amend its Particulars of Claim.

Given that the Claimant is now in a position whereby it can rely upon a valid default notice at trial, we do not consider there to be reasonable prospects of successfully defending this claim. In an effort to protect you form having adverse costs awarded against you, we feel it appropriate to attempt settlement by was of Tomlin Order as detailed above.

We would be grateful if you could confirm your instructions in this regard."

[myboro]

OK - credit card case with Nationwide passed this to a solicitor and seemed to be going well - no win no fee very dodgy default notice.

 

But now just got this from them, appears to suggest a second default notice can be accepted in my case - any advice please

 

" I write further to our telephone conversation yesterday evening.

 

As discussed, the Claimant has previously been given permission to amend it Particulars of Claim and are seeking to rely upon a fresh default notice. Unfortunately, the fresh default notice upon which the Claimant seeks to rely is compliant with the Consumer Credit Act and Regulations. As such, we feel consider it to be in your best interests to settle this claim by way of a Tomlin Order whereby each party bears its own costs.

 

On 21st September 2010, the Claimant made an Application to the Court requesting permission to amend its Particulars of Claim. The application was made by the Claimant who requested that it be dealt with ‘without a hearing’ despite the fact that we had made it known to the Claimant that we would contest such an application. The reason for the Claimant making an application to amend it Particulars of Claim was to allow for the provision a fresh Default Notice.

 

On 29th September 2010, upon reading the Claimant’s application, District Judge **** made an Order that the Claimant be granted permission to amend its Particulars of Claim. This Order was made on the Court’s own motion as a result of the Claimant requesting that the application be dealt with ‘without a hearing’.

 

Upon seeking advice from Counsel, we made an application to the Court requesting that the Order of District Judge Eddon dated 29th September 2010 be set aside and a hearing date set.

 

On 11th October 2010, District Judge Eddon made an Order setting aside his previous Order of 29th September 2010 and listing the application for hearing on the next available date.

The hearing of the applications subsequently took place by way of telephone conference before District Judge ****. Unfortunately, District Judge ***** took the view that allowing the Claimant to amend its Particulars of Claim would not cause any significant prejudice to our Defence. As such it was Ordered that the Claimant be granted permission to amend its Particulars of Claim.

Given that the Claimant is now in a position whereby it can rely upon a valid default notice at trial, we do not consider there to be reasonable prospects of successfully defending this claim. In an effort to protect you form having adverse costs awarded against you, we feel it appropriate to attempt settlement by was of Tomlin Order as detailed above.

We would be grateful if you could confirm your instructions in this regard."

[postggj]

how can the claim be delt with a different default notice

 

the first claim needs to be discontinued, then the creditor needs to submitt a fresh claim after the new default notice has expired

 

a cause of action allowing a claim would be the default notice expiring

 

not introduce it while the first claim is going on

 

also

 

when this new default notice was issued

 

did you get a termination notice after the default notice expired after 14 days

[myboro]

They issued the new default August 2010 and then requested to change the paticulars of claim following re-constitution of agreement.

I thought this was simply admin by the court Eg - pay your fee change the claim, still does not alter the facts of the case

Solicitor now thinks I should settle though! How cab this be right! No termination notice went straight to issue court claim - 6 months from first missed payment July 2009

[postggj]

are you telling me they have issued a claim on a reconstructed agreement?????

 

who is the dca behind this

[myboro]

No DCA nationwide issued directly using eversheds. Signed an application form and they state all relevant terms were on the back. Dodgy default issued April 2008 and defended initially myself on both counts. Due to stress it caused asked a solicitor to take over. They were happy to do so, but now have come back with the above. Not happy to sign a Tomlin order from what others have said, stating £40 a month fior a £7000 debt

[myboro]

Anybody offer any advice please as I am being pushed by my solicitor to settle with a tomlin order.

[catquest]

Advantage : No CCJ on your record

Disadvantage : one missed payment and they can enter judgment. Also probably a clause that they can review the amount every so often

[panty54]

Have a look at my thread on Nwide - very similar to your case and they were allowed to amend POC and issue an amended DN. This went all the way to court where we lost but not without a good fight. If we'd had the energy and funds it was very tempting to take it to appeal but decided not to in the end. Our case was very much based on the "balance of probabilities" and the judge found for the claimant in the end. Now paying the CCJ but at a very reasonable amount I am glad to say.

[myboro]

Hi,

 

Had a Nationwide credit card and after redundancy led to default Notice April 2009. (This was invalid for lots of reasons). Proceedings issued June 2009 and after back and forth agreed a £35/month payment plan. Now during case Nationwide issued another default notice (this time looks valid).

 

Has anything changed recently with regard to default Notice as have not kept up. Case may be back on the agenda (re-instated) and want to know if I can defend on the basis that default before proceedings was invalid!

 

Many thanks for any help, there used to be a thread on Default Notices but cannot seem to find it. Sure it stated a second default could not be issued as there would be no agreement on which to serve.

 

Sorry if not clear but not sure what might happen to this at the moment. So a bit worried

 

Cheers

Mike

[42man]

Brandon vs Amex was the case I think you are thinking of.

[AndyOrch]

Hi myboro

 

What happened to the proceedings in 2009 are they stayed or still ongoing?

 

Regards

 

Andy

[DonkeyB]

I don’t think they can reissue a DN during proceedings – they would have to withdraw and start again (with the court’s permission, if necessary). See Brandon. But it is something they could overcome if they do it properly.

[myboro]

Proceedings in 2009 were stayed as a Tomlin Order was agreed. An application was made for Judgement on the Tomlin Order but judge ruled terms had not been breached. So currently I am only asking in-case the proceedings are re-instated. Should really of gone forward in 2011 but it was making me ill.

 

Had a quick read of Brandon case but seemed to be about 2 days being de-minus. Here default was faulty in more ways than that but how are they allowed to re-issue after starting case.

[DonkeyB]

If you stick to the terms of the Tomlin Order, it won’t ever be an issue.

 

The new DN is a bit of a red herring – if you breached the TO, then the TO itself would allow them to enter judgment anyway (assuming it’s a standardly-worded TO). You would have to have the TO set aside to challenge anything, and there’s more chance of winning the lottery. Accepting the TO rendered the facts of the case largely irrelevant – you should have defended at the time if the case was defendable.

 

I’m puzzled as to why they have issued a new DN. Makes no sense with a TO in place.

[AndyOrch]

The matter is stayed by way of the Tomlin Order...as DB states unless there is a breach of the schedule........no further action can be taken/enforced... they can issue as many Default Notices as they desire but they are pointless.

 

Regards

 

Andy

[myboro]

Hi,

 

Thanks at present yes Tomlin Order is in place and being complied with. Yesterday they made an application for judgement based on the Voluntary Charge not being registered. I opposed this, stating that documents required signature of my Wife who was not named on the Tomlin Order or part of the original agreement. Judge agreed and ruled against the application.

 

Now the solicitor representing talked about re-instating proceedings which is why I was asking for advice. As I understand it the Tomlin Order could onl;y be set aside if both parties agree and I would only agree if I had a valid defense. Problem occurred when a valid default was issued and particulars of claim changed, which is why I was asking if anything had changed between now and end of 2009 regarding defending on the basis of an invalid DN.

 

Order of events as follows

Feb 2009 - Offer Token payments after redundancy - refused

April 2009 - default notice - defective on both date and amount

June 2009 - Court Claim Issued

- Defense filed and got a no win no fee solicitor to take on case

August 2010 - NEW DEFAULT NOTICE issued and appeared valid - case still on-going

October 2010 - Particulars of claim changed to reflect new notice

October 2011 - Hearing Ruled that new paticulars were valid - My solicitor had opposed

October 2011 - Advised that case would likely be lost and should settle to avoid costs running up.

Oct 2011 - Sign Tomlin Order and case stayed!

Jan 2013 - Application for forthwith judgement

Feb 2013 - Judge agrees that Tomlin Order not breached even though voluntary charge was not made!

[DonkeyB]

Hi,

 

Thanks at present yes Tomlin Order is in place and being complied with. Yesterday they made an application for judgement based on the Voluntary Charge not being registered. I opposed this, stating that documents required signature of my Wife who was not named on the Tomlin Order or part of the original agreement. Judge agreed and ruled against the application.

 

Now the solicitor representing talked about re-instating proceedings which is why I was asking for advice. As I understand it the Tomlin Order could onl;y be set aside if both parties agree and I would only agree if I had a valid defense. Problem occurred when a valid default was issued and particulars of claim changed, which is why I was asking if anything had changed between now and end of 2009 regarding defending on the basis of an invalid DN.

 

Order of events as follows

Feb 2009 - Offer Token payments after redundancy - refused

April 2009 - default notice - defective on both date and amount

June 2009 - Court Claim Issued

- Defense filed and got a no win no fee solicitor to take on case

August 2010 - NEW DEFAULT NOTICE issued and appeared valid - case still on-going

October 2010 - Particulars of claim changed to reflect new notice

October 2011 - Hearing Ruled that new paticulars were valid - My solicitor had opposed

October 2011 - Advised that case would likely be lost and should settle to avoid costs running up.

Oct 2011 - Sign Tomlin Order and case stayed!

Jan 2013 - Application for forthwith judgement

Feb 2013 - Judge agrees that Tomlin Order not breached even though voluntary charge was not made!

 

So the bad DN was rectified.

 

Is the charging order mentioned in the schedule of the Tomlin Order?

[DonkeyB]

And it's the Brandon appeal you need to read, not the original case - but that's not relevant now.

[myboro]

Yes charging order is in schedule of Tomlin Order but badly worded clause states I will sign and return any documents, problem is documents also require my wifes signature.

 

I suppose my main question is CAN a bad default be rectified after enforcement has started. I thought a valid DN was needed to start enforcement - eg claim?

 

Will look for Brandon Appeal again but I thought leave to appeal was granted as Statute is there for a reason so De-minus was not correct as it would override statute!

[DonkeyB]

technically, enforcement only occurs on judgment. But the court has allowed the new PoC to stand, so it’s a moot point now – you were advised not to oppose at the time.

[myboro]

Thanks DonkeyB, will let the Tomlin Order continue then otherwise it is likely to increase costs significantly. May ask if they want to discuss options for security of debt, not sure how much they want the debt secured on property. If I could negotiate a couple of things I would be happy but doubt they would go for it.

 

Just have to be happy with an interest free loan at £35 per month which is not open to review!