MBNA - Claim Form received today ***Resolved/Settled by Tomlin Order***

[citizenB]

They will see that you have submitted a defence and will then advise the court if they wish to proceed. You will then be advised further by the court.

 

They have 28 days in which to proceed at which point if they don't, the claim will be stayed.

 

What application did you make by N244 - this I think will be advised to them separately.

[Jameson78]

Time Order

With a covering letter..

[citizenB]

Time Order

With a covering letter..

 

Yes, of course.. sorry.. I missed that

[mryummy]

Hi, have you thought about contacting STEPCHANGE?

 

It has helped me no end and the creditors seem to respond much better and i have managed to starve off these vile creatures and sorted it all out

[AndyOrch]

First off there may be a hearing for your application not always necessary for the application you have made and then its up to the Claimant to decide their next move.They have 28 days to respond to your defence as CB states...if they try to oppose the Time Order that will only confirm your points of defence...so we wait and see.

 

Regards

 

Andy

[Jameson78]

The Royal Mail Special Delivery Guaranteed will be delivered tomorrow - A day after my deadline! I posted on Saturday and the Post Office assured me it will be delivered today. Is this a big problem?

[Old Cogger]

The Royal Mail Special Delivery Guaranteed will be delivered tomorrow - A day after my deadline! I posted on Saturday and the Post Office assured me it will be delivered today. Is this a big problem?

 

 

Happens all the time by Royal Mail, but it should not cause a problem as you will have a despatch receipt if anybody tried it on, hence 1st class these takes 2 days it seems hence I sent O.H. to claimants solicitor to-day and it will arrive wednesday no doubt the day it has to be there, it happened a month ago 2 days = 1st class

[AndyOrch]

The Royal Mail Special Delivery Guaranteed will be delivered tomorrow - A day after my deadline! I posted on Saturday and the Post Office assured me it will be delivered today. Is this a big problem?

 

No as long as the defence was submitted on time.

[Jameson78]

Hi Andy,

 

Letter from Restons received today saying they received my Application Notice.

 

They start off by saying they have complied with my CCA request (7 months after I made a request)

and they asked me to complete a financial statement, which also put me on notice that legal proceedings would be issued in the absence of any response.

There also claim that they tried to telephone me once and left a voicemail message. (No they did not).

 

So they say I had ample time to resolve this matter and in the circumstances there is no obligation to agree to a Tomlin Order after proceedings had been issued.

 

(They fail to mention that they gave me the complete runaround for over a year.

They did write to me on 12/09/12 requesting that I pay the full amount,

and I replied informing them that i had never heard of Restons or their client Arrow.

 

At which point I sent a CCA request and they responded that they are not able to comply to my request

because they do not have my new address on file,

 

however, they are very happy with communicating with me at my new address.

 

I have an accurate log of events and letters back and fourth trying to get them to comply to my CCA request..

 

then there was the phantom payments game we played..

 

once again several letters to sort that out,

I disputed the payments of course, s

o you can see I have had to fight with them just to get them to comply to my request which was pursuant to the CCA 1974)

 

Interestingly, they bring my attention to the decision in Southern and District Finance v Barnes,

whereby it was held that a "When a Time Order is made, it should be made for a stipulated period on account of temporary financial difficulty;

if, despite the giving of time, the debtor is unlikely to be able to resume payment of the total indebtedness

by at least the amount of the contractual installments, no Time Order should be made;

in such circumstances it would be more equitable to allow the regulated agreement to be enforced".

 

They go on to say that the documents exhibited in my Application do not demonstrate that my financial difficulties are "temporary"

and they do not believe my application has any prospect of success and they will oppose and request costs on a contractual (indemnity) basis

and they say that I should withdraw my application in 7 days or else!

 

Court day is 27 August and I am really looking forward to it.

 

What's our next move against their play?

 

Regards,

Jameson

[AndyOrch]

Hi Jameson

 

Interesting that they have taken time to research Southern and District Finance v Barnes and used it to justify a CCJ rather than a Time Order.Ok lets now cut through the smoke and mirrors to see were they are going with this

 

" in such circumstances it would be more equitable to allow the regulated agreement to be enforced " well of course then they can go for a Charging Order as opposed to the time Order which they cant.Hence the name " Charging Orders R Us "

 

Here's a section that will be of interest to you:-

 

[6] The Court of Appeal of England and Wales provided the following guidance about time orders in Southern and District Finance plc v Barnes [1996] 1 FCR 679 when Legatt LJ stated:-

“(1) When a time order is applied for, or a possession order sought of land to which a regulated agreement applies, the court must first consider whether it is just to make a time order. That will involve consideration of all the circumstances of the case, and of the position of the creditor as well as the debtor.

(2) When a time order is made, it should normally be made for a stipulated period on account of temporary financial difficulty. If, despite the giving of time, the debtor is unlikely to be able to resume repayment of the total indebtedness by at least the amount of the contractual instalments, no time order should be made. In such circumstances it will be more equitable to allow the regulated agreement to be enforced.

(3) When a time order is made relating to the

non-payment of money:-

(a) the “sum owed” means every sum which is due and owing under the agreement, but where possession proceedings have been brought by the creditor that will normally comprise the total indebtedness; and

(b) the court must consider what instalments would be reasonable both as to amount and timing, having regard to the debtor’s means.

(4) The court may include in a time order any amendment of the agreement, which it considers just to both parties, and which is a consequence of a term of the order. If the rate of interest is amended it is relevant that smaller instalments will result both in a liability to pay interest on accumulated arrears and, on the other hand, in an extended period of repayment. But to some extent the high rate of interest usually payable under regulated agreements already takes account of the risk that difficulties in repayment may occur.

(5) If a time order is made when the sum owed is the whole of the outstanding balance due under the loan, there will inevitably be consequences for the term of the loan or for the rate of interest or both.

(6) If justice requires the making of a time order, the court should suspend any possession order that it also makes, so long as the terms of the time order are complied with.”

How do they know that your current difficulties are not temporary? ...can they crystal ball gaze?

Is the above letter marked save as to costs without prejudice?

Why finish it with a threat of costs if you do not withdraw?

" there is no obligation to agree to a Tomlin Order after proceedings had been issued."........ Maybe not but even more so when it stands in the way of a Charging Order application.

They have opposed the Tomlin Order they are now trying to oppose the Time Order Ithink that this needs to be brought to the Courts attention at your Time order hearing.

Regards

Andy

[Jameson78]

Hi Andy,

If they do have a Crystal ball then I'm pretty sure it's not plugged in.

They know that I am a contractor and but they may not know that I have lined up a long-term contract next year. If necessary, I can show this to the Court to prove my circumstances are temporary.

The letter was not marked save as to costs without prejudice or with any comment similar.

They warn me that if I do not contact their office by 4pm on 14 August confirming that I have withdrawn my application, then they will seek an Order that I pay costs.

Even at this stage, they are refusing to mediate with me, they just want me to roll over to allow them to go for the Charging Order application. They are clearly threatening me with costs which is having the opposite intended desire.. I want my day in Court!

[AndyOrch]

Just make sure their behaviour is brought to the courts attention at your hearing...failure to entertain ADR will soon put a dent in their threat of costs.

 

Regards

Andy

[Jameson78]

Hi Andy,

 

Would you advise I reply to their letter and quote the Court of Appeal guidance about Time Orders in the aforementioned case. Basically advise them that I will not withdraw my application and at the same time mention that they can still avoid all this Court time and expense if they simply stay the action with a view to a Tomlin Order being agreed. (Knowing that they will again refuse this).

 

And would I be able to show the contents of their letter and my letter to the DJ which will demonstrate that in the face of said threat I am still trying to resolve this matter?

 

Or ignore the letter completely and just show up on the day of my hearing and explain in person?

 

Regards,

Jameson

[Alloyz1]

I know this is late in the day, but I would kick myself if I didn't mention this.

 

I am off to court (probably) albeit with an unlawful agreement and DN.

 

Just check any of the clauses they ask you to refer to in the agreement are corresponding in the terms and conditions i.e. if in the agreement they state 'please read condition 11 in the terms and conditions on how we process your data', make sure condition 11 is data protection related. Just check the following minimum balance on the back of the agreement is £5, make sure that is in the terms (sometimes stated at £25 in the T&C), data protection, Payment holiday, you get the idea.

 

I know it may be nothing but just thought I would mention as it is a material fact in mine (on 13 examples!)

 

You have great advice from Andy, take it to the letter

 

A

[AndyOrch]

If you wish to respond Jameson then do so...it will add further to your paper trail when you disclose their responses to the court.In your response you could mention the threat of costs and yet they fail to entertain any form of mediation....and this will be brought to the courts attention at the first opportunity.

They are very disgruntled....if you get your Time Order their grasp on their charging order...diminishes hence.... the venom.

[Jameson78]

Hi Andy, I want to send this letter to Restons in reply to their letter.. I have used your ideas and added some more details. Please tell me if it's OTT (I do get a bit emotional) or suggest something to add (or delete)??

Thanks so much for your help with this.

Regards,

Jameson

 

 

Thank you for your letter dated 05 August 2013.

Unfortunately, your record of events does not tell the full story. For example, I accept that I received a letter from your office, dated 12 September 2012, however, due to no Notice of Assignment being served, I had to ensure that the you have the right to lay claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974. The following day, I wrote a letter dated 17 September 2013 to determine who you are and simultaneously contacted Arrow Global regarding this matter. On the same day, under separate cover, I wrote to Arrow to formally request a copy of my Credit Agreement pursuant to s.77/78 of the Consumer Credit Act 1974

I was amazed to receive a response from Arrow stating that they are not able to comply due to “Data Protection” as I am using a different address than the one they have on record. The irony was that your firm, Restons, was in clear breach of the Data Protection Act 1998, by writing to me not knowing that I am the correct person. I find it puzzling that Arrow was unwilling to comply with my formal CCA request but at the same time you, acting as Arrows external solicitor’s, were happy to communicate with me at the correct address. Evidently, Arrow had supplied my address to you. Therefore, Arrow’s statement and behavior was disingenuous. After several more letters, it took more than 7 months for Arrow to finally comply.

As you will appreciate from just this one example, it has not been easy for me dealing with your company. I have an accurate log of events which I will present to the Honorable Court, which will show further examples of stonewalling by your company.

Furthermore, absolutely no telephone call or voicemail was received as you state in your letter. I will confirm this fact once again under oath.

It is interesting to note that you have referred me to Southern and District Finance v Barnes and used it to justify a CCJ instead of a Time Order.

You quote, “in such circumstances it would be more equitable to allow the regulated agreement to be enforced.” So you may obtain a CCJ and subsequent application for a Charging Order which I believe is your modus operandi.

Furthermore, I respectfully draw your attention to the following:

 

[6] The Court of Appeal of England and Wales provided the following guidance about time orders in Southern and District Finance plc v Barnes [1996] 1 FCR 679 when Legatt LJ stated:-

 

“(1) When a time order is applied for, or a possession order sought of land to which a regulated agreement applies, the court must first consider whether it is just to make a time order. That will involve consideration of all the circumstances of the case, and of the position of the creditor as well as the debtor.

 

(2) When a time order is made, it should normally be made for a stipulated period on account of temporary financial difficulty. If, despite the giving of time, the debtor is unlikely to be able to resume repayment of the total indebtedness by at least the amount of the contractual instalments, no time order should be made. In such circumstances it will be more equitable to allow the regulated agreement to be enforced.

 

(3) When a time order is made relating to the

non-payment of money:-

 

(a) the “sum owed” means every sum which is due and owing under the agreement, but where possession proceedings have been brought by the creditor that will normally comprise the total indebtedness; and

 

(b) the court must consider what instalments would be reasonable both as to amount and timing, having regard to the debtor’s means.

 

(4) The court may include in a time order any amendment of the agreement, which it considers just to both parties, and which is a consequence of a term of the order. If the rate of interest is amended it is relevant that smaller instalments will result both in a liability to pay interest on accumulated arrears and, on the other hand, in an extended period of repayment. But to some extent the high rate of interest usually payable under regulated agreements already takes account of the risk that difficulties in repayment may occur.

 

(5) If a time order is made when the sum owed is the whole of the outstanding balance due under the loan, there will inevitably be consequences for the term of the loan or for the rate of interest or both.

 

(6) If justice requires the making of a time order, the court should suspend any possession order that it also makes, so long as the terms of the time order are complied with.”

I am amazed that you are able to crystal gaze and conclude that my financial difficulties are not temporary. I am very well educated with broad experiences in many fields. I will present to the Court, short term freelance contracts starting next year. There are many opportunities for me and I am very optimistic about my future. I explained to your colleague XX XXXX during a telephone call on 01 July 2013 that my work and domestic circumstances are temporary. Instead your colleague advised that I complete and return the Income and expenditure form inside my Claim Pack. Had I followed his instructions and completed the N9A Income and Expenditure, your firm would have requested judgment instantly.

 

 

In your letter dated 5 August, you state, “there is no obligation to agree to a Tomlin Order after proceedings had been issued.” Maybe not, but even more so when it stands in the way of a Charging Order application. You have opposed the Tomlin Order and now, not only are you opposing the Time Order, but you also threaten me with costs.

It is disappointing to note that you fail to entertain any form of mediation. However, I respectfully ask you to put everything said and done to one side as I wish to extend an olive branch and urge you to stay the Court action with a view to a Tomlin Order being agreed and therefore avoid further unnecessary costs and Court time.

If I do not hear from you on this matter, then I am left with no choice but to present my full case to you or your representative and the Honorable Court on 27 August 2013.

 

Yours faithfully,

[Jameson78]

Thanks Alloyz1

Regards,

Jameson

[AndyOrch]

Hi Jameson

 

Its not a response I would make....short and sweet.

 

Further to letter dated xxth xxxxx the contents of which are noted which will be be presented and brought to the courts attention along with all your previous refusals to enter into any meaningful dialogue to settle this matter, at the forthcoming hearing to consider my application.

My position stands along with my application and any withdrawal will only be considered with view to a Tomlin Order being offered in its replacement.

 

Regards

 

Andy

[Jameson78]

Hi Andy,

 

Certainly is short and sweet.

Will i be able to say what I wrote at my hearing?

I really don't know what to expect and I must say that I am very much looking forward to it. I have seen Court cases in TV but there are for serious crimes etc and I presume are no way similar to this type of case. Will I be given time to speak and am I allowed to present to the Court letters and documents that I have not included in my Application?

 

Regards,

Jameson

[AndyOrch]

Hi Andy,

 

Certainly is short and sweet.

Will i be able to say what I wrote at my hearing?

I really don't know what to expect and I must say that I am very much looking forward to it. I have seen Court cases in TV but there are for serious crimes etc and I presume are no way similar to this type of case. Will I be given time to speak and am I allowed to present to the Court letters and documents that I have not included in my Application?

 

Regards,

Jameson

 

The main submissions will be your I&E and ability to qualify for the Order.This is not a trial so an in-depth defence is not required..you may be asked to expand on the history of the debt and why you have made the application, you will have to explain that litigation was commenced by the claimant and then present your evidence of how all negotiations have been refuted and denied.Make it clear that it would appear that it is the claimants sole intention to convert this unsecured loan into a secured one by way of a Charging Order and has refused and frustrated all attempts of mediation...even to the point of using costs to deter you from proceeding with your application.

[Jameson78]

Hi Andy,

Further to my letter stating my position following their threat of costs, I have received a statement of costs for over £700 for the upcoming hearing. Apart from the fact that to me, a layman, this seems excessive, it is intimidatory. Is this normal behavior to write to the claimant and advise of costs before a hearing ?

 

It's obviously their way of slapping me in my face before the hearing for not heeding the warning and intimidate me.

 

You asked if their previous letter had been marked with save as to costs without prejudice - and it hadn't. How major/minor is this point?

 

Regards,

Jameson

[Old Cogger]

t they lied and won because we had a DJ who I had dealings with and she is bad judgment maker as evidence in friont of her she ignores as every body is trying to get out of paying whoever back is her theme, any way she did point out the cost element on such a small amount was very excessive and they los £1.500 in their cost element, they were bad loosers on that they tries to bring in 8% interest element butthey lost that one as the were sanctioned for failing on 90 counts of igbnoring court orders.

 

so cost may be high to you O.H.s was the cost of attendance by representative for otherside, plus hearing cost only, bear that in mind.

 

these companies try to freighten you which shows how corrupt these solicitor firms are in their business methods when so called dealing with debts.

 

Without Prejudice save as to cost, that old herring, ?

[Jameson78]

Hi Mike, Sorry but I don't fully understand the first part of your post..

My question is I want to know if it's normal practice to send this type of letter about costs before a hearing? This is my first experience of such things!

[AndyOrch]

Hi Jameson

 

Yes it is standard procedure to serve a costs notice on the other party before a hearing /trial.£700 is a bit excessive maybe a Barrister being called in.But they only get if they are successful and if successful if the DJ agrees to that amount.

 

 

Save as to costs without prejudice Solicitors quite often write letters with this heading. It means the letter – because it is an attempt to settle the claim – can’t be shown to the Court before or during the main part of the hearing. But the ‘save as to costs’ bit means that if you refuse the offer and then either lose, or get awarded less than they have offered, they may show the Courtl the letter in support of an application for costs at the end of the case. Their argument will be that your refusal of the offer amounted to unreasonable conduct of your case.

 

Regards

 

Andy

[Jameson78]

Thanks Andy