Help Please with Claim Form!!!

[AndyOrch]

When you say by way of a Tomlin order do i still get a CCJ ?

 

Not unless you default on the agreement

[Honeypot]

What is the benefit to the claimant by having a Tomlin Order?

 

I thought they would want a CCJ then they can pursue security through VC or CO.

 

It seems like its better for the debtor

[AndyOrch]

What is the benefit to the claimant by having a Tomlin Order? None apart from further costs, plenty for you by way of protection that they do also comply to the agreement

 

I thought they would want a CCJ then they can pursue security through VC or CO. The TO prevents the need for judgment providing you abide to the schedule.If you fail or default the claim will proceed they get their CCJ and then they are entitles to make application for a CO (Restriction).The Tomlin stays the claim indefinitely.

 

It seems like its better for the debtor

In what way? No charging order no CCJ no need to proceed.Better for all concerned

 

If you drop your defence they will continue and just seek Summary Judgment the TO stays all proceedings and restricts their options.

 

Andy

[Honeypot]

OK. How do i go about entering in to a Tomlin order?

Do I write back and say I will drop my defence but would like agreement in the way of a Tomlin order.

Do i need to ask court about this?

is there any special forms?

Vicky

x

[AndyOrch]

OK. How do i go about entering in to a Tomlin order? Suggest it to their Sols in your response to their latest offer

Do I write back and say I will drop my defence but would like agreement in the way of a Tomlin order. NO!!!! the defence stands and does not need to be dropped once a TO is agreed

Do i need to ask court about this? No

is there any special forms? The Sols will draft one, if agreeable, post up once received and I will check it

Vicky

x

 

Regards

Andy

 

[Honeypot]

Thanks Andy.Is this OK to send it seems a bit thin!Dear Sir/MadamRef: xxxxxxxxxThank you for the offer in your recent letter dated xxxxxxxxx the contents of which have been noted.I am happy that you are able to accept my recent offer of £x per month.I would like to suggest that we bind this by way of a Tomlin Order.I look forward to hearing from you.Regards----------

[Honeypot]

I have just been looking over the last few posts and a Tomlin Order sounds excellent for me however, as you say, there is no benefit to the clamaint and actually restricts there options so I am struggling to understand why they would agree to one?There doesnt seem to be many posts on CAG with examples of TO its all CCJ's and CO's...

[AndyOrch]

Thanks Andy.Is this OK to send it seems a bit thin!Dear Sir/Madam Ref: xxxxxxxxx With regards to your recent letter dated xxxxxxxxx the contents of which have been noted.I am willing to consider your offer and note that you are able to accept my recent offer of £x per month.I would like to propose that we agree this by way of a Tomlin Order and would be happy to consider your draft Order and Schedule by return.

I look forward to hearing from you.Regards----------

 

[AndyOrch]

You obviously not checked my posts then:wink:

 

 

The misuse of Tomlin orders causes further problems because draftsmen have little apparent idea of what goes in the order and what goes in the schedule. By definition, any order, as opposed to an agreement, must appear in the order itself. Thus, if money is to be paid out of court or costs are to be paid by either party to the other, those matters must be dealt with in the order proper.

 

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

 

 

 

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

 

XXXXXXXxx,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 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 installment amount, the new monthly installment shall become payable under

paragraph 3,with effect from the next installment date.

 

7.If following any review, either the Claimant or the Defendant considers a new monthly installment 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 installment payable and thereafter the stay

and settlement contained in this schedule do continue.

 

 

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

 

Andy

Edited June 28, 2011 by Andyorch

[Honeypot]

Cheers AndyShould I send that draft (tailored to my situation) in my letter ?

[AndyOrch]

That would be inadvisable Vicky most Sols struggle to draft one correctly and it sometimes pays not to be too knowledgeable of these matters.

I have amended your response and the fact that your refer to a schedule and an order is signal enough that you do have an understanding.

 

Let me know their response.

 

Regards

 

Andy

[Honeypot]

Hi AndyI had a reply back. They have agreed to a Tomlin Order and have set out their schedule but they have included a charging order in the Tomlin Order. Also that the charge be protected by way of restriction on the title of the property at the land registry. What does that mean? It seems that the Tomlin order includes all the same things they have already agreed to in their last letter.So if I accept the Tomlin Order I just wont get a CCJ. xxx

[AndyOrch]

Hi Vicky

 

I really need to see the schedule and fine detail.Any reference to a CO/Restriction would be in the event of if you failed to

adhere to the agreement and defaulted, then they would apply.They cant get a CO/Restriction unless they have judgment

and they cant have judgment unless you default (which you wont)

 

Andy

[Honeypot]

Thanks Andy

I noticed at the bottom of the order it shows you the pathway on the solicitors computer to the document. They obviously do a few of these!

image1a.pdf

image2a.pdf

image3a.pdf

image4a.pdf

image5a.pdf

[AndyOrch]

They have included in the Order section a vol equitable charge basically this means :-

 

An equitable charge is created when a debtor or a person with some other obligation uses property as security for the debt or obligation. The charge is created because the property is 'charged' with the payment of the debt or discharge of the obligation.

An equitable charge is enforceable by a court order, which means that the property is sold to realise the security interest for the debt or obligation.(Not sure your Mortgage Company would be to happy with this or any other creditors)

 

If you dont agree they will add interest and costs to the judgment (assuming they are allowed as per the T&Cs of the agreement).Its a very underhand way of securing the debt and one you may need to seek legal advice.Yes you avoid the CCJ but I personally wouldn't agree this and would take my chance on accepting the CCJ and opting for a installment order.

 

Regards

 

Andy

[Honeypot]

Thanks AndyIn their letter last week (before I wrote to them about Tomlin Order) it said that provided I drop my defence and accept a summary judgment and a VCthey would-freeze the amount -accept monthly amount-not enfoce the VC provided I pay the installmentsDoes that seem a better deal than the Tomlin Order particulalry as they say they will not enforce the VC?Because of the large amount they will surely apply for a forthwith order although it doesnt mention that in their letter.

[Honeypot]

Is an equitable Charge the same as a Voluntary Charge?

[AndyOrch]

More information:-

 

8 Voluntary arrangements

 

 

8.1 General

 

 

A voluntary arrangement with creditors consists of either a composition in satisfaction of debts or a scheme of arrangement of affairs. In either case it must be approved by a meeting of creditors (see Part VII of IA 1986).

 

The arrangement is implemented by a person known as the supervisor of the voluntary arrangement.

 

The effect of a voluntary arrangement, if any, on the debtor’s property1 depends on its terms.

 

1 All of the debtor’s property will be included in the arrangement, unless specifically excluded – r.5.3.2(a), IR 1986 (as substituted by the Insolvency (Amendment) (No 2) Rules 2002) (SI 2002/2172).

 

So, if the voluntary arrangement is no more than an agreement to pay regular sums to the supervisor, then any registered estate or interest of the debtor will be unaffected and neither a notice nor a restriction could be applied for in respect of the arrangement.

 

Where the debtor has a registered estate or other interest in a registered estate, whether the supervisor is entitled to apply for an entry to be made in a registered title will depend on whether the voluntary arrangement provides for the transfer of, or creates an interest in, the debtor’s estate or interest and, if so, the nature of that interest.

 

Sections 8.2 Notices – unilateral and agreed and 8.3 Restrictions deal with the possible methods of protection for some of the more common interests.

 

8.2 Notices – unilateral and agreed

 

 

If the debtor is the sole proprietor of a registered estate which they hold for their own benefit, and the arrangement creates an equitable charge, a contract for sale, option, or right of pre-emption in favor of the supervisor affecting that registered estate application may be made for entry of an agreed or unilateral notice in form AN1 or UN1, in respect of the interest created.

 

If the debtor has a beneficial interest under a trust of land of a registered estate, and the arrangement creates an equitable charge, a contract for sale, option, or right of pre-emption in favor of the supervisor affecting that interest, the interest created cannot be protected by an agreed or unilateral notice2.

 

2 S.33, LRA 2002 provides that no notice may be entered in the register in respect of an interest under a trust of land. The method of protecting an interest held under a trust of land is by way of a restriction.

 

8.3 Restrictions

 

 

If the effect of the arrangement is to create a trust (either expressly or because, for example, property is stated to be held for the benefit of the creditors3) and it affects a registered estate or interest, then it may be possible to protect the trust by entry of a restriction.

 

3 Re NT Gallagher & Son Ltd [2002] 1 W.L.R 2380 at 2396.

 

Any application for a restriction must be in form RX1 and (other than an application by this or with the consent of all of the registered proprietors) must be accompanied by a copy of the arrangement. This shows that the registered estate is subject to the trust and that the supervisor has a sufficient interest in the entry of the restriction sought4; and assists the registrar in deciding whether the restriction appears to be necessary or desirable for one or more of the purposes in s.42(1), LRA 2002.

 

4 S.43(1)©, LRA 2002.

 

Unless all of the registered proprietors apply for the restriction sought or consent to its entry, notice of the application will be given to the proprietors5 and any objection will need to be considered under s.73, LRA 2002 and, if it is not groundless, referred to the Adjudicator to HM Land Registry.

 

5 S.45(3)(a), LRA 2002.

 

8.3.1 If the debtor is the sole registered proprietor, was before the voluntary arrangement holding the property for their own benefit and is holding on trust for the creditors under the voluntary arrangement

 

 

In these circumstances it is considered that an application may be made for a restriction in standard Form A or in standard Form II6 (which requires a certificate to be produced on any application to register a disposition that written notice of the disposition has been given to the supervisor).

 

6 For the wording of the standard form restrictions - see r.91, LRR 2003 and Schedule 4, LRR 2003 and The Land Registration (Amendment) Rules 2005.

 

Application for entry of a restriction in standard Form N or L (in addition to a Form A if applied for) may also be possible if the voluntary arrangement contains a provision that the debtor will not transfer, charge or otherwise deal with the property without the consent of the supervisor.

 

8.3.2 Joint registered proprietors (one of whom may be the debtor) who were holding on trust for the debtor and others before the voluntary arrangement

 

 

If the arrangement contains a charge or assignment of the debtor’s interest or creates a trust in favour of the supervisor an application may be made for entry of a restriction in standard Form A, provided a Form A restriction has not already been entered in the register.

 

If the voluntary arrangement contains an assignment of a debtor’s beneficial interest, it is considered that the supervisor may also apply for a restriction in standard Form II, because the trust interest will be owned by the supervisor and not by the debtor.

 

If the interest is held on trust by the debtor for the creditors or charged to the supervisor, it is considered that no form of restriction, other than in Form A (if not already entered), can be applied for unless all the registered proprietors consent to the restriction. This is because the interest of the supervisor or creditors will be derivative7.

 

7 While the debtor’s interest would appear to be a right or claim in relation to a registered estate (within s.42(1)©, LRA 2002), the charge on, or beneficial interests in, the debtor’s interest are one removed from the registered estate and so are considered not to be rights or claims within section 42(1)©.

 

If the debtor holds their beneficial interest on a bare trust for the supervisor, it is considered that an application may be made for a standard Form II restriction8. Practice Guide 19 – Notices, restrictions and the protection of third party interests in the register contains more information about applying to enter agreed and unilateral notices and restrictions.

 

8 Because the supervisor’s interest is not one removed from the registered estate, as the supervisor may step into the debtor’s shoes.

 

 

 

I must stress that on some occasions securing a charge against a property isn’t necessarily a bad thing at all, providing conditions are attached to it. If a debtor is unable to make any payments against a debt they may wish to consider offering the creditor a voluntary charge. The same might apply if the debtor is terminally ill or a single house owner with no heirs. The great thing with a voluntary charge is that it might be easy to ensure conditions are attached to the charge, these conditions could be that the creditor is not allowed to request an order for sale and also that all interest is frozen when the charge is applied.

 

Regards

 

Andy

[Honeypot]

Thanks for that Andy.If you look at the attachemnt which shows the The Equitable Charge conditions clause number 7 it says that if I pay the settlement sum by installments thenthe bank shall accept them and shall not take any steps to obtain payment of the settlement sum either by action, sale or otherwise.Is this the bit of good news that I need?

[AndyOrch]

Well its a little relief but personally I would be seeing a conveyance Solicitor to put my mind at rest.I do know that most if not all major

Financial institutes do not accept or will agree a VCO arrangement as opposed to a normal CCJ and then CO route.There must be a reason for this.

 

Andy

[Honeypot]

So basically it sounds too good to be true is that what you mean?

[AndyOrch]

More like I am still skeptical as to why they are going to all the trouble of that and including it in the order.You should get an half hour free

which is all it would take for a good Con Sol to advise you if acceptable.Their security should be the TO and view to proceed if you default

not request a VCO as part of the settlement.

 

Andy

[Honeypot]

Hi AndyI phoned the clainants solicitors about this and they said because of the amount of the debt they are wanting some security.So my options are-1. Drop defence>get summary judgement>then VCO>monthly payment and no enforcement of VCO provided I keep up with payment plan.2. Tomlin order>no CCJ>VCO>monthly payment and no enforcement of VCO provided I keep up with payment plan.I believe what you are highlighting is why can't I have the Tomlin Order in place without VCO included in it because if I default then they will automatically get CCJ and then CO.Is that right?x

[AndyOrch]

Thats the normal way Vicky.

 

Andy

[Honeypot]

Thanks AndyIs it worth writing to them asking for no VCO in Tomlin order on the basis that they will get this should I default etc and point this out to them etc or something begging to that effect !