Help need with court claim please

[slick132]

...and clarify each party's standing.

 

Also, see this thread re similar issues - http://www.consumeractiongroup.co.uk/forum/mbna/239030-mbna-reston-threating-court-21.html#post2883086

 

[the_shadow]

Hi everyone,

 

This is my first attempt at a response to the Tomlin Order i have been sent.

 

Any advice in making my point hit home would be much appreciated!!

 

Thanks

 

 

 

 

Thank you for letter dated 14 April 2010.

 

I was pleased to finally have a response from you in regards to attempting to resolve this matter out of court. However I cannot agree to the Tomlin Order you enclosed with your letter.

 

I do not agree to pay costs as I have on multiple occasions offered to make monthly payments of approximately £20. You or your client could have at any point accepted this without the need for litigation. It was your choice to take legal proceedings and to incur costs. I will, as I have said many times before, pay £20 a month towards the outstanding amount of £xxxx.xx and not the amount you have quoted in item 2 of your Schedule that includes your costs.

 

I also require clarification of item 3 of your Schedule. There has to be a figure stated that I am to pay after the six months of paying £20 a month ends. The vagueness of item 3 makes the Tomlin Order pointless as it should resolve matters and clarify each parties standing. As it is currently written, you are at liberty to seek judgment against me at any time you see fit, by making demands of monthly payments I could not possibly afford.

 

I ask you to drop the request for your costs and to amend item 3 of your Schedule.

 

That does the job avarose imo, you've shown you realise the effect of clause 3 and put them to getting it right... I have to say if a judge was being fair he/she wouldnt agree to seal this order as its open ended in the creditors favour.

 

S.

[citizenB]

Hi everyone,

 

This is my first attempt at a response to the Tomlin Order i have been sent.

 

Any advice in making my point hit home would be much appreciated!!

 

Thanks

 

 

 

 

Thank you for letter dated 14 April 2010.

 

I was pleased to finally have a response from you in regards to attempting to resolve this matter out of court. However I cannot agree to the Tomlin Order you enclosed with your letter.

 

I do not agree to pay costs as I have on multiple occasions offered to make monthly payments of approximately £20. You or your client could have at any point accepted this without the need for litigation. It was your choice to take legal proceedings and to incur costs. I will, as I have said many times before, pay £20 a month towards the outstanding amount of £xxxx.xx and not the amount you have quoted in item 2 of your Schedule that includes your costs.

 

I also require clarification of item 3 of your Schedule. There has to be a figure stated that I am to pay after the six months of paying £20 a month ends. The vagueness of item 3 makes the Tomlin Order pointless as it should resolve matters and clarify each parties standing. As it is currently written, you are at liberty to seek judgment against me at any time you see fit, by making demands of monthly payments I could not possibly afford.

 

I ask you to drop the request for your costs and to amend item 3 of your Schedule.

 

Excellent.. you could add at the end.

 

I look forward to receiving the amended Order.

[avarose]

Thank you for your input everyone. I will make the couple of small changes etc and get it in the post. Will keep you posted as ever.

Thanks again.

[avarose]

Hi,

I have had a response to my letter in regards to the Tomlin order. They have agreed to drop the costs!! Yay! Apart from the £100 for issuing proceedings. They have also amended part 3 of their schedule.

 

I have attached copies. Please can you let me know your thoughts on this? Is it ok to sign do you think?

 

The court has also granted another stay of a month.

 

I am looking for a job so that is why they want to review it in six months etc. Fair enough i think but i am still a little wary of what amount they may set... I have a second interview for a job this week, i am really hoping to get it. If i do then i will ask that the Tomlin Order be redone on the basis of my new wages / outgoings etc. But i just don't know if i will get it, or if i will know if i have got it in time ( before the stay is up...)

 

Many thanks

Scan 101160006.pdf

Scan 101160005.pdf

Scan 101160004.pdf

[slick132]

Hi Avarose,

 

Apart from the £100 for issuing proceedings.

Do you mean their legal costs for issuing proceedings or the court fees for doing so. If it's the former, I would still contest this item.

 

As regards s.3 of the Order, if the review is to be based on your income and expenditure at the time and you are ok with that, then I think you could accept it as it stands.

 

If they reviewed it and came up with a figure which you felt was unacceptable, the matter could be referred to the court for a redetermination.

 

I hope others will express their views and good luck with the job appl'n.

 

[citizenB]

I still have reservations over their costs. My objections to those are the same as they were earlier. It was their choice to take this to court. You had made this very same offer.

 

I see they say that any future reviews will be based on disposable income on completion of an I & E form so that covers that.

 

You should also insist that they provide you with their client's bank details so you can either pay online or set up a standing order. In the alternative you want a paying in book.

 

Good luck with your job interview:D

[avarose]

Hi everyone,

 

I have been thinking a lot about whether to fight the £100 or not and i think i'm just going to sign this now. I really appreciate your advice but I am tired of fighting to be honest. I totally agree that i should not have to pay it and my husband also wants me to contest it but i actually think it is a minor miracle that they have agreed to drop their costs even... I know that with other people on this forum they have not dropped them so that is at least something.

 

I am hoping i will get into employment soon and can get a decent amount to pay off per month agreed with them and that's that. This has been a total nightmare and such a constant worry.

 

Good point about the direct payment etc, i will make sure i get the bank details etc.

 

Thank you so much to everyone who has helped me along the way - especially CitizenB. This forum really is worth it's weight in gold.

 

I will be back to let you know if i get the job i am going for tomorrow! Oh and i have a few more battles to fight with other creditors too yet, so you have not seen the last of me!

 

Take care for now.

[uptoeyeballs]

Good luck avarose!

[slick132]

Hi Avarose,

 

It's entirely your prerogative to do only what you are happy with.

 

There are other battles to fight, as you say.

 

[avarose]

Hi there everyone,

 

I have been paying on my Tomlin Order on this for a few months and all been fine. I got a statement from Santander today though that shows that they are still charging me interest. So I am getting nowhere getting it paid off... Can they still charge interest on an account that has been terminated and now being paid by Tomlin order?!?

[slick132]

Hi Avarose,

 

I've asked for further input on this.

 

8-)

[bozalt]

Hi Ava

 

I had an almost strange with Santander but in my case they said I owed less than agreed in the Tomlin order, I have been trying to resolve with Shoosmiths but they are being less than helpful, in fact they no longer answer my letters.

 

I will watch your thread to see if you manage to get any answers as it may help me resolve my issue, I dont want to pay more than I owe as I am sure you dont.

 

Good luck

 

B

[DonkeyB]

The order you signed was clear – this was full and final settlement, to be paid off at the rate of£XX per month. There was no provision for applying interest.

 

I would aver that they are therefore in breach of the order.

 

If you had breached the order, I know what their options would be. I have no idea what their sanction would be, though I suggest you check your credit report – they could be now reporting false data if they are showing an incorrect (inflated) amount outstanding.

 

I would first check your credit record, then write a strongly worded letter pointing out their serious error. If they are trashing your credit file, ask what compensation they intend to apply to your account.

[slick132]

Hi Averose,

 

Comment from the site team agrees with Donkey's post above.

 

Write to Shoosmiths disputing the charging of interest.

 

Have you supplied a current Budget Planner to enable a review of the level of payments in accordance with the Tomlin Order.

 

8)

[avarose]

Thanks for the advice. I will write a letter to Shoosmiths. I will let you know how i get on.

[avarose]

Oh and no not supplied a recent budget planner - they've not asked for one yet. Should I provide one every six months myself or wait to be asked?

[AndyOrch]

Hi Avarose this is how a watertight TO should be drafted

I appreciate what Donkey states that there is no provision for interest but also there isn't one to state that no interest will be applied either!!!

As stated you need to clarify this with the Sols involved and if no joy you would need to take recourse with the Court that sealed the order.

 

Originally Posted by andyorch

IN THE XXXXXXXXXXXXX county court CLAIM NO: XXXXXXXX

 

Between Claimant

 

 

Claimant

 

and

 

 

Defendant

 

 

 

 

Tomlin Order

 

 

Upon the parties having agreed terms of settlement

 

 

BY CONSENT IT IS ORDERED THAT:

 

 

1. All further proceedings in this action shall be stayed upon the terms set out in the

the attached schedule,except for the purpose of carrying such terms into effect.

 

2. Each party shall have liberty to apply to the court if the other party does not give

effect to the terms set out in the schedule.

 

3.No order for costs.

 

 

Dated ......................... .......

 

We consent to the making of an order in the above terms

 

 

......................... .................

Sols for the Claimant

 

 

 

......................... .................

 

Defendant

 

 

 

 

 

 

 

 

 

 

SCHEDULE

 

 

1. The Defendant shall pay to the Claimant the sum of £xxxxxxx in Full and final

settlement of this claim

 

2. No charges/Interest will accrue on the settlement sum

 

3. The Defendant will pay to the Claimant on or before xx xxxxx 2010 the sum of

£20.00 followed by payments of £20.00 on or before the xxth of each month and every

month thereafter until the balance has been paid in full.

 

4. If payment is not made on the due date the Claimant shall give notice in writing of such a

default to the Defendant and if payment is not made within 14 days from the date of such

notice the Claimant shall be at liberty to apply to lift the stay and proceed with the claim.

5.The amount of the monthly installment payment shall be reviewed at 12 monthly intervals.The defendant shall co-operate

with the Claimant on such review by providing the Claimant with such information about her assets income and expenditure,

as the Claimant shall reasonably request.

 

6.if following any review the Claimant and Defendant agree a new monthly instalment amount, the new monthly instalment shall become payable under

paragraph 3,with effect from the next instalment date.

 

7.If following any review, either the Claimant or the Defendant considers a new monthly instalment amount should be payable but cannot agree this with

the other party, either party shall be at liberty to apply to the Court for the Court to determine the monthly instalment payable and thereafter the stay

and settlement contained in this schedule do continue.

 

 

Thats how you want the TO laid out and content if you come to an agreement (12mth month review if possible)

 

 

Regards

 

Andy

[DonkeyB]

Great stuff mate.