Link mbna claim! ***settled***

[AndyOrch]

You need to delete some pms and make space GF

 

Andy

[gforce2k]

Sorry Andy PM box free now

[AndyOrch]

Ok if they fail to submit the N170 say by Friday then options become available.

 

[gforce2k]

Quick update,

Received their late PreTrial Checklist today, was due on 2nd feb but sent 8th.

requested a strike out a few days ago by letter but the court decided to issue an unless order on the 8th giving them until 15th, of course not needed now.

So next step trial sometime April.

I'll scan and post some details in the next couple of days.

Thanks

gf2k

[gforce2k]

Hi anyone,

 

After receiving my lengthy WS Link have approached re settlement.

They called last week apparently but I have only just received the letter today suggesting "negotiated settlement" rather than "continued and expensive litigation".

 

With everything I have argued in the WS and defence I'm confident enough of a win that I'll continue to court if necessary,

I've not counterclaimed so far but I have mentioned £1500 or so of charges in my defence/WS so it's possible I may be awarded a refund/damages.

 

The trial is early april so approx 2 weeks to go which doesn't leave them long to reclaim their court trial fees so Imagine they would prefer to walk away without losing more money?

 

should I stick it out to the trial / demand the claim be dropped / counterclaim for charges / ask them for an amount to settle?

 

Anyone out there that can advise urgently?

Their office closes at 5:15pm today.

Regards,

gf2k

[Tonka99]

Hi gf

 

Hit the triangle to alert the site team to advise you, not a lot of peeps around

at the moment

 

Good Luck

Tonks

[gforce2k]

thanks tonks, done it

[DonkeyB]

Oops...

 

Did they comply with the unless order?

[asokn]

No-one can tell you for certain what course of action to take. Are the settlement terms attractive to you?

 

If you haven't issued a counterclaim then the court won't just give you damages. I wouldn't place much hope on that.

[gforce2k]

they were late filing their PTC but all the court did was allow another 7 days.

I filed the WS late with a letter explaining mitigating circumstances so pretty sure should be allowed as LiP.

 

Spoken to them this afternoon and he says he has advised his 'clients' that if the judge allows my late WS I am more likely to win, if the WS is not allowed the claimant will be in a stronger position.

However he did admit that on balance, given the mitigating circumstance and my status as LiP there is a good chance the judge would allow the WS.

So the WS has a pound value for them in terms of any settlement - allowed more £, disallowed less £.

 

I asked him what his 'clients' had suggested, he told me their offer is to wipe their charges/interest back to the original balance (when MBNA closed the account) and then wipe 60% off leaving roughly a third of the current claim amount to pay by Tomlin Order.

I told him I felt even if the WS was not allowed we had a good chance with our strong arguments so why should we give in now? Not acceptable.

He suggested I come back to him with an offer/amount I could afford.

 

Ready for the trial so before I consider this can someone explain a Tomlin Order please?

Am I admitting liability or is the claim just on hold?

Also what is the minimum percentage they usually accept in these types of settlements? (or what percentage of the balance are they likely to have paid MBNA when taking on the account?)

 

Thanks,

GF2k

[DonkeyB]

They are clearly looking to get out.

 

Again, only you can decide whether you want to accept a deal and get out of here.

 

By talking off the record – negotiating – you have admitted nothing that can be used in court.

 

Handled properly, a Tomlin order is OK, but if you fail to keep up a payment they can enter judgment. You need to be careful of the wording.

 

They would have bought the account for maybe 10% of its face value.

[gforce2k]

Thanks DB,

so from the sound of it once I sign a TO I admit the debt?

 

Is it at all likely they might take a much lower lump sum (say 10-12%) as full and final than wait for a TO to play out?

 

Would you know of an example of a carefully/properly worded tomlin order?

Any including wording that requires for the default to be removed on completion?

 

Rgds

gf2k

[DonkeyB]

You can put anything you like in an order, and it does not have to be a Tomlin Order. It’s not about admitting the debt, but about a compromise (which does not waste the court’s time – the overriding objective). You could simply have an order stating that you pay X amount, and if you default, they can reinstate the claim. It does not have to allow for instant judgment. I’ve worded many orders for idiot debt buyers and DCAs where they just haven’t understood what’s written...

 

However... step back.

 

I am absolutely sure your defence will be allowed. Your case is as strong as ever.

 

Beware their playing mind games though – they might have, behind your back, applied for strike out of your WS, for example (as they would be technically entitled to do, but equally you could complain about their late submissions). How did they know it was submitted late? I guess you told them and sent a copy.

 

I can’t advise on what you might want to pay to have shot of this. I think they would bite your arm off at 20% though. But make sure it’s an order you can live with. and one that doesn’t give them the upper hand if you have unexpected problems. For example, the order could include a clause that refers to what happens to the CRA entry. The content of the order is something you can negotiate – it’s not set in stone.

[DonkeyB]

Remember also that the concept of F&F has little relevance in the middle of a case.

[gforce2k]

Thanks DB,

The day after I put in the WS I received a Draft Case Summary from L1NK which included a clause/point citing CPR 32.10 stating that if a WS is not filed within time "the Witness may not give oral evidence unless the court gives permission".

Also included was a Draft Trial Timetable that suggested 4 hours for trial plus reading time and again had notes pointing out that a WS had not been filed.

 

As the WS has now been filed with the court, albeit late, they will have to make changes to reflect this but I'm sure they will mention CPR32.10 in some way in an effort to stop oral evidence.

However, even if oral evidence is disallowed the WS is extremely detailed and quite comprehensive with 80+ points.

 

So a lot depends on the allowance of the WS by the judge which I suppose I won;t know until the trial - unless there is some way to ask the question up front?

 

re your comment on F&F I don;t understand exactly - are you saying it is not possible for a reduced settlement figure agreed by both parties as F&F to be recognised by the court in some kind of order?

re the wording/type of order, if not a Tomlin Order what order would suit the following:

- admits no liability but agrees a reduced settlement to be paid by monthly installments which will be F&F settlement of any and all claims (at the end of which the debt/defaults will be wiped from the various credit registries?)

- the claim is stayed until either party defaults at which point it will continue but with no automatic judgment

 

Is the above possible just in a TO or some other/better way.

thanks GF2k

[the_shadow]

A Tomlin order is normally drafted by the opposing solicitor but after negotiation on the contents, i wouldnt worry too much about the wording of any tomlin order at present, you can always post it on here for advice, or post general questions if it has a confidentiality clause which no doubt it will.

 

The tomlin order is not seeking to trap you its more a case of both sides agreeing this is the best outcome, however if you dont keep to your side of the order then yes they can usually apply for judgement fortwith again depending on the wording of the order.

 

S.

[AndyOrch]

Hi GF

 

I have only just logged on and picked up your PM.I will post you a water tight TO that I have drafted shortly.

 

Andy

[AndyOrch]

1. 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

 

 

 

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

 

XXXXXXXxx,Defendant

 

 

 

 

SCHEDULE

 

 

1. The Defendant shall pay to the Claimant the sum of £xxxxx 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 2012 the sum of

£XX.00 followed by payments of £XX.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 instalment 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 there after the stay and settlement contained in this schedule do continue.

 

 

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

 

Andy

Edited March 27, 2012 by Andyorch

[gforce2k]

Thanks AO, that's absolutely fantastic, exactly what I wanted.

 

just to clarify, would I be right that:

- there is no confidentiality clause because it would interfere with the right to apply to the court in clause 7?

- there is no "neither admits nor denies" clause because admission is implied?

 

lastly have you ever drafted any that deal with the question of wiping the debt/defaults from credit registries? if so what wording would you suggest?

thanks

gf2k

[AndyOrch]

Thanks AO, that's absolutely fantastic, exactly what I wanted.

 

just to clarify, would I be right that:

- there is no confidentiality clause because it would interfere with the right to apply to the court in clause 7? The schedule is confidential only the order is viewed by the DJ

- there is no "neither admits nor denies" clause because admission is implied? No admission is implied it simply stays litigation unless either side breaks the agreement

 

lastly have you ever drafted any that deal with the question of wiping the debt/defaults from credit registries? if so what wording would you suggest? Cant be done it remains for 6 years as per the ICO guidlines and reporting of correct data.

thanks

gf2k

 

Regards

 

Andy

[gforce2k]

ok thanks.

 

so if either side defaults we just take up where we left off in the fast track/trial process?

 

regards,

GF2k

[AndyOrch]

ok thanks.

 

so if either side defaults we just take up where we left off in the fast track/trial process?

 

regards,

GF2k

 

Well there's only you that can default, the Claimant may try to move the goal posts and be awkward ie reviews unreasonable requests etc. but yes essentially you both have recourse to approach the Court try to settle any disagreement within the TO and if that fails then the claim can be lifted out of stay and proceed.Tomlin Orders only stay litigation, not end it, it will remain stayed until the claim is cleared.The way I drafted it is without the inclusion of " if you default we can apply for Judgment " that is a time bomb consent.

 

Andy

Edited March 28, 2012 by Andyorch

[gforce2k]

understood, thanks AO

 

GF

[gforce2k]

Hi AO/Anyone,

After a little negotiation today (and L1NK conceding that the WS will likely be admitted) we agreed a full and final Tomlin Order at approx 10% of the claim total to avoid going to trial next week.

 

I've since received a fairly standard TO by email:

 

BY CONSENT it is Ordered that all further proceedings against the Defendant herein be stayed upon the terms set out in the Schedule hereto save for the purpose of enforcing the said terms with liberty to apply for such purpose.

 

Schedule:

 

1. The Defendant do pay to the Claimant the sum of £XXXX.XX (inclusive of costs and interest) by seventy-six equal monthly instalments of £XX.XX and one final instalment of £XX.XX, the first such instalment to be paid on or before the last day of XXXX 2012 and the second and each subsequent instalment to be paid on or before the last day of each consecutive month thereafter.

 

2. The aforesaid payment of £XXXX.XX is to be in full and final satisfaction of the Claimant’s claim against the Defendant in this action.

 

3. In the event of the whole or any part of the aforesaid instalments being unpaid upon its due date the Claimant shall be at liberty to enter judgment against the Defendant for the said sum of £XXXX.XX or such part of that sum as shall then remain outstanding.

 

4. The Parties shall at all times keep this agreement and its terms strictly confidential to themselves and for their legal advisors and shall not disclose, cause to be disclosed, permit or otherwise allow to be disclosed to any other third party any information relating to this agreement and its terms, save as otherwise agreed between the Parties

 

I am using AO's TO as a template to make revisions to the above but am not sure if I should introduce clauses 5,6 and 7 relating to instalment payment reviews (below):

 

5. The amount of the monthly instalment 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 there after the stay and settlement contained in this schedule do continue.

 

I can see the necessity to introduce 5,6 & 7 if the payments are high but the payments I have agreed are affordable so I have no interest in leaving it open to change, that would surely to serve the Claimant's interests not mine?

Or is there something I'm missing?

 

***If anyone could give me some urgent guidance on this I would appreciate it.***

 

Regards,

[gforce2k]

Also, is it in my interest or theirs to include the confidentiality clause (point 4 in last post)?

 

Thanks

GF2k