Help Please with Claim Form!!!

[AndyOrch]

You could try to renegotiate the terms of the TO but its a safe bet they wont agree considering its inclusion already.

They have security by means of the TO anyway they are just short cutting the process and edging their bets.

If you refuse they proceed, chances are they will get the CCJ and subject to your financial position it may not be a forthwith

it could be installments on that amount.(And if not you can apply for installments)Are you happy to gain a CCJ with affordable payments but with no CO/Restriction

or accept their carrot on a string no CCJ but a CO/Restriction threat? Just be careful the carrot isn't a stick of dynamite.

I know that they have stated that it will sit in the schedule and not be applied unless you default in which case that option may seem more inviting to you rather than a CCJ.I just want you to be sure of what you may be agreeing to.

Vicky if you cannot arrange to see a brief you could phone National Debtline and inquire to what has been offered.They are quite savvy on those matters.

 

Regards

 

Andy

[Honeypot]

Thanks AndyYou have helped so much I dont want to screw it up more than I already have. Okay I think the best way forward is to get a CCJ and take a chance that I can pay with installments. I guess I have nothing to loose as if they order forthwith then chances I will get a CO which I will anyway with Tomlin.I have two young children so they are unlikely to order a sale (I hope)My credit rating is trashed so a CCJ wont make any difference I suppose.

[Honeypot]

Do I now just write to them and say I want you to apply for a summary judgement and I'll drop my defence ( which they have already asked me to do to bargain) however should I state I do not agree to a VCO and let the court/judge decide what happens?x

[AndyOrch]

Thanks AndyYou have helped so much I dont want to screw it up more than I already have. Okay I think the best way forward is to get a CCJ and take a chance that I can pay with installments. I guess I have nothing to loose as if they order forthwith ( judge decides that) then chances I will get a CO (Not unless you default) which I will anyway with Tomlin.(No you dont get a CCJ with the TO) I have two young children so they are unlikely to order a sale (I hope) (Would never come to that and they have to get a CO/Restriction first) My credit rating is trashed so a CCJ wont make any difference I suppose.

 

The TO would be perfect for you but they have included a nasty threat which there is absolutely no need to include and I consider vexatious

 

Andy

[AndyOrch]

Do I now just write to them and say I want you to apply for a summary judgement No and I'll drop my defence No ( which they have already asked me to do to bargain)NO however should I state I do not agree to a VCO and let the court/judge decide what happens?x

Ask them to remove it and you will agree to the TO also state that if its not you will disclose this to the Court

 

Andy

Edited July 5, 2011 by Andyorch
addition

[Honeypot]

Hi Andy I have been ill and not able to post. The National Debtline said because of the amount of debt it is highly likely they will apply for a forthwith order should I go down the CCJ route. So although it isnt guaranteed it is highly likely I am going to end up with a CO.They said it is not normal practice but the CO in the TO but not uncommon.I am going to write like you said to them and see what they say. I have nothing to lose now.Can you help with any pointers that I could put in the letter Andy?Vickyx

[AndyOrch]

Hi Andy I have been ill and not able to post. Hope your getting better :-)The National Debtline said because of the amount of debt it is highly likely they will apply for a forthwith order should I go down the CCJ route.Likely but not assured and if they do you simply make application vis a N245 for installments So although it isnt guaranteed it is highly likely I am going to end up with a CO.Unless you can get the TO sorted They said it is not normal practice but the CO in the TO but not uncommon.There is no need for its inclusion the CCJ is their security I am going to write like you said to them and see what they say. I have nothing to lose now.Can you help with any pointers that I could put in the letter Andy?Vickyx

 

If the CCJ is of no relevance to you and you wont be requiring credit for at least 6 years proceed with the claim.

If how ever it is important to avoid a CCJ you need to crunch a consent order (TO) but pref without the equitable charge.

 

 

Regards

 

Andy

Edited July 19, 2011 by Andyorch

[Honeypot]

My credit rating is shot but if I can try get a TO without a CO then I suppose I am better off :)Is this OK- Ref/>xxxxx Thank you foryour letter dated xxxxx the contents of which have been noted.I have taken legal advice and have been informed that including an Equitable Charge within the TO is unusual.I would therefore be grateful if you can explain why you have done this?Once this is removed I will agree to the TO straight away.Yours xxxxxxx

[AndyOrch]

Vicky we may have discussed this before but i can recall, If the debt is in your name only and your property is in joint names

then you need to consider the following:-

 

If you proceed and get a CCJ they have many hurdles to jump before they can then apply for an ICO and with view of the above

even if they do they will only get a restriction on your share of the property which in effect means naff all.

 

If you accept their consent order and I appreciate they would only proceed with the VCO if you was to default they may get a full blown charge on your property

as I have stated not sure how this stands with the joint ownership point or to whether your Mortgagee would in fact allow it.

 

With the above in mind I personally would proceed and not put my property in jeopardy I think they are being vexatious with this inclusion

and as already stated a TO with the correct schedule should be security enough. Asking them to explain why this inclusion will be going over old ground we know its security but this is wrong as no preference should be placed over any other creditors.I think a short note to acknowledge their offer of consent but unless the VCO is dropped you will not be able to settle matter.Maintain that you will be prepared for them to apply for an ICO in the event you should default and them successfully attaining a CCJ.

 

Regards

 

Andy

[Honeypot]

OK Andy, makes sense and yes debt in single name, joint names on property.Is this OK. I'll try it and if no good will go down the normal route...Re xxxxx Thank you foryour letter dated xxxxx the contents of which have been noted.I acknowledge your TO however unless the clause which includes a Equitabe Charge is dropped I am unable to proceed with this.I look forward to hearing from youYours xxxxxx

[Honeypot]

Hi AndySent a letter to Solicitors about Charge being not included in the TO and I was basically told to get lost!!Surprise, Surprise.Ah, well....

[AndyOrch]

Oh well retain all their responses and your offers, you will have opportunity to refer it to DJ

when he deliberates his decision and matter of costs.I personally would be more comfortable with the CCJ

than a VCO noose around my neck, if they do actually get one!!!!

 

 

Rule 44.5(3)(a)(ii) requires the court, in deciding the amount of costs to be

 

awarded, to have regard to the conduct of the parties, including in particular

 

"the efforts made, if any, before and during the proceedings in order to try to

 

resolve the dispute"

 

.

 

Regards

 

Andy

Edited July 21, 2011 by Andyorch

[Honeypot]

Thanks, as always Andy.Do you know if judges these days do just leave things at the CCJ stage or are they under pressure to chuck the works in and do the CCJ then forthwith and then CO...

[AndyOrch]

Not sure what you mean there Honey?

 

Andy

[Honeypot]

Hi AndyStrange morning! Update-Just had letter from solicitors- Following a further review with their client they are prepared to accept my offer. They enclosed a new Tomlin Order with Charging order removed. Two days ago i phoned them and they said no !Weird Honeyx

[AndyOrch]

:whoo:Persistence has a great effect particularly if you know what you are persisting to.

 

Well done Vicky

 

Andy

[Honeypot]

Is it a con do you think?Shall I post it up for you to check?

[AndyOrch]

Yes why not

[AndyOrch]

 

Should be along the lines of below this is how I draft them:-

 

 

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

 

Andy

[Honeypot]

I dont have your clause 6 or 7 on mine which I particularly like...

image1.pdf

[AndyOrch]

Have you got the Order also Vicky?

[Honeypot]

Yes Andy. It wouldn't scan but it looks like yours and seems in legal order.I do like your clause 6 & 7 in the schedule. Would you write back and suggest that be included or do you think it looks OK as it is?Honeyx

[AndyOrch]

Ok no its fine, point 7 of my draft would kick in anyway even though is absent from your schedule.For them to

proceed they would have to make application to lift the stay and proceed and process the claim, they cant just click their fingers for judgment.

As long as the order contains point 2.

 

Sign it and dispense with this matter, and enjoy your Friday night:wink:

 

Well done and update your thread when its all rubber stamped.

 

Regards

Andy

[Honeypot]

Thank You AndyYou've gone above and beyond helping me on this one.I'll update you when its rubber stamped!Just got my other claim to do now- I'll be in touch LOL!If you're ever in Leeds you must let me know- Drink waiting!Vickyx

[Honeypot]

Hi AndyCan you advise on my OH situation with same OC. For some reason they wouldnt agree to a TO with the same conditions as me so they got summary judgement as we dropped our defence. The CCJ was on 12th July.The thing is we havent heard from the court or solicitor about it. How do we find out what monthly payment has been ordered and try set at an amount that he can afford? Thanks Vicky x