claim form for 9,000 for wifes credit card from 2004 - no NOA? *sorted under a TOmlin Order*

[Nomore Baloney]

I have been fighting with a charming bunch of solicitors acting on behalf of an intransigent debt collection agency.

I showed the agreement to a firm of solicitors who act on a no win no fee basis and have a really good reputation.

 

They said they were unable to take the case on as there was not a reasonable chance of success

and having been issued with a County Court summons, my best move was to settle by means of a Tomlin Order.

 

Now whilst i understand the basis of a Tomlin order,

part of the draft agreement requires annual reviews on the basis of the scrutiny of an income and expenditure form.

 

If no agreement is made on the annual review amount then either side can take it to the court for a judge

to determine the ongoing repayment amount.

 

Who would be liable for the court costs?

I am just very wary that they will try and force an amount we cannot afford

and attempt to bully us into agreeing rather than be liable for court fees.

 

How do I prevent that situation occurring?

 

Thanks.

[AndyOrch]

The schedule should contain the clause each party to bear their own costs.If in the event there is need for recourse to the Court.The annual review is a standard requirement of a TO and in most cases can be decided between the parties without court intervention.

 

Regards

 

Andy

[sillygirl1]

Without knowing the DCA and their legal firm we can't help much further... they could be a well known team on this site.

 

Have you acknowledged the CCJ yet, it isn't a cut and dried thing that it may be granted against you - if you do not acknowledge it online then you will get a judgement by default.

[Nomore Baloney]

They are a very well known team on here.

To be fair, the actual agreement looks fairly robust,

even though it dates from 2004,

 

the only possible chinks in their armour would appear to be things such as method of delivery of assignment,

no termination of agreement.

They have stated that they will address those matters by way of pro forma docs and affadavits.

 

All shaky ground I suspect these days with the legal system appearing to be happy to ignore the strict law and use a near enough approach...

 

Its been dragging on for about 5 months now with lots of stays to negotiate a settlement.

[sillygirl1]

Without naming them you are leaving yourself wide open, I can't give any more advice now.

 

If you think it is shaky ground then a Tomlin Order won't give you any protection at all.

 

Without knowing the firm and seeing the particulars of claim this is as good as admitting that you are wasting your time posting on here.

 

The other question is when was the last payment by you on this account, to the original creditor and to any DCA collecting.

[Nomore Baloney]

Hi, I was just asking for opinion on the wording of a particular facet on the Tomlin order :

e.g. Court costs if they (the DCA) want the court to adjudicate.

 

Whilst I really appreciate your interest, at the mo that's all I need to know about at the mo.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?308720-jon888999-vs-AK-***Settled-Via-Tomlin-Order-***

 

My circs. are broadly similar to this thread if that helps.

 

Thanks.

[sillygirl1]

I have no idea about the costs element, you are daft to sign something when you can defend it and maybe have it dismissed or discontinued.

 

A Tomlin order is admitting to the debt in its entirety and if you miss one single payment by one single day they can have you in court very quickly.

[Nomore Baloney]

Well i appreciate what you are saying, but maybe I would be 'daft' to risk a CCJ with the additional costs and aggravation that would make me liable for. I have negotiated a substantial discount off the 'asking price' already.

 

If I miss a payment I have 14 days to rectify the missing payment, which is a nominal amount anyway.

 

I have (touch wood) got rid of several large debts with the aid of CAG, so to get hit for just one is not too onerous in the scheme of things. But thanks for your positive advice.

[BRIGADIER2JCS]

I have been party to a number of mediations that have resulted in Tomlin Orders

and only 1 debtor has had to pay the costs.

[Nomore Baloney]

Ok Brig, that sounds promising. Just don't want to get stitched up any more than I have to!

[BRIGADIER2JCS]

Ok Brig, that sounds promising. Just don't want to get stitched up any more than I have to!

 

the orders are advantageous, low payment level,simple

to work and no CCJ.

I have seen £5 per month for 40 years.

[Nomore Baloney]

The Tomlin order has been signed with annual reviews every November based on an I/E form. Have they any right to a comprehensive and detailed breakdown and also details of spouses income and outgoings?

[BRIGADIER2JCS]

As to spouses income they have no need

to know any detail of income unless you

have a joint account.

Straight foward I&E,

[Nomore Baloney]

You can bet your bottom dollar they will ask for it though and threaten all sorts.

[BRIGADIER2JCS]

It's your debt and your money going to be paying

it off, you are still and always will be in charge of

your money if your circumstances have not changed

then nor will the order.

Is this paid by standing order??

[Nomore Baloney]

Not yet...

[Nomore Baloney]

In the event of agreeing to a Tomlin order or succumbing to a CCJ, has the court the power to have any details of my wifes income for their consideration?

 

I'm basically unemployed and she's not.

[Happyhippy1959]

No, the court will look at your outgoings, it is not in the interest of the courts nor is it under English law your partners problem or debt ( only if in joint names ). If the court started that malarkey you would see a lot of skulduggery by people moving out and saying they were on there own... Remember the debacle of the CSA at first when it took partners wages into consideration, it caused more hassle than it was worth and would have been challenged in the high court so the government brought in a simple formula. YOUR DEBT, YOUR OUTGOINGS YOUR INCOME

[Nomore Baloney]

About 18 months ago I used a firm of solicitors to beat off a off 3 DCA's who appeared to have valid agreements and wanted to proceed to court.

 

Two of them were defeated, never to be seen again.

 

The third, although deficient in a couple of small areas, had a good enough case to win.

In the end we agreed a Tomlin order for a sum of just over £9,000..

 

Things havn't improved financially at Baloney towers so we need to move.

There's not much equity in the house, but what there is we need to help fund the move.

 

My problem is that there is a clause contained deep within the order that,

'The defendant consents to the claimant obtaining a voluntary charge or charging order over the defendants interest in the property..'

 

It wasn't an issue at the time as if we went to court and lost, which seemed likely,

I would have had lots more legal fees to find and they would have gone for a charging order anyway.

 

Any solutions or suggestions folks?

[sequenci]

Hello there.

 

Did the register the charge on the property? is it jointly owned? If so was the debt in joint names?

[Nomore Baloney]

I have had nothing from the land registry to suggest a charge is there actually. Debt is in my name, house in joint names.

 

Is there a way they can put a caution on my home that flags up when I sell, rather than a formal charge?

[sequenci]

it'll be worth checking with the land registry to see if there is actually a charge or restriction registered.

 

 

If anything it would have to be registered as a restriction rather than a legal charge

and there is no obligation to pay them via the sale -

only an obligation on the solicitor to let them know that the house has been sold.

[Nomore Baloney]

I have downloaded the land registry property register which shows just my morgtgage company and no cautions from the Tomlin order. Maybe the other side forgot to register it, in which case I'm a happy bunny!

[BRIGADIER2JCS]

I think the 'charging order' would only have been applied if the terms of payment contained in the TO were not met, this is quite common.

[Nomore Baloney]

Oh well, at least I can sell my house!