DCA CCJ - old Lloyds Credit Card - CCJ Set Aside

[numbers666]

Hi Dude,

 

Tomlin Order ??? Maybe ???

 

Or 'Will pay x amount in F and F, on cond. ... the alternative is I take this 500 quid i was gonna pay you and file for bankruptcy ???'

[TheDude1]

numbers666 said:

Hi Dude,

 

Tomlin Order ??? Maybe ???

 

Or 'Will pay x amount in F and F, on cond. ... the alternative is I take this 500 quid i was gonna pay you and file for bankruptcy ???'

 

Hi mate, what is a 'Tomlin order' ?

 

yeh, thought about Bankruptcy, hell I got a CCJ for 6 years anyways!

 

Have been reading a bit more about this Tomlin Order,

 

So basically it has 2 sections: The Order, The Schedule.

 

The Order:

1: Claim dismissed from the court providing both parties agree to The Schedule.

2: Judgment dated xx/xx/xxxx entered against Defendant be set-aside.

 

The Schedule;

1: The Claimant to accept Defendant's offer of settlement.

2: The Defendant's duty will be to pay Claimant full and final payment of £xxxx.xx to reach Claimant by 10/03/2012.

 

Am I right in saying that the Claimant has the right/power to remove the CCJ and not the court? ie Is it possible for the Judge to object to the set-aside, even though the Claimant does not object to it?

 

Thanks for any help!

Edited February 23, 2012 by TheDude1

[asokn]

I don't think a Tomlin order is really want you need here, it's not usual to use one in these circumstances. I would suggest a simple order providing for the setting aside of the judgment, a payment in full and final settlement of the debt and a provision for costs as appropriate.

 

However, as you've had an application to set the judgment aside dismissed I don't see why a creditor would agree to losing the security of the judgment when they can enforce it instead.

[TheDude1]

Hi mate, thanks for the post and advice!

 

Yes, I'm not sure what to do really. I definitely want to try and get Judgment set-aside.

 

If DCA don't agree to it, I don't believe I will get a chance. I am offering F+F on the basis of both parties are getting what they want, from my prospective 'satisfied judgement' is not worth my hard earned !!! I want it gone from the Register.

 

The problem with a simple order (I believe) is that the court thinks I can only afford £xx per month, if they see that I am offering a 4-digit figure, wouldn't that go against me in some way?

 

I guess with a Tomlin order, the court cannot see the amount offered as it is confidential between Defendant and Claimant, I think all the Judge will see is that we both agree to it.

 

I'm not sure though, thanks for posting, cheers

[asokn]

Well the case is effectively at an end, there is a judgment in place which was unsuccessfully challenged. Therefore there isn't really much that the court could do to 'punish' you if it thought you were withholding money for the creditor (it's not really the court's role to do that anyway).

 

I assume the default judgment is payable forthwith anyway and therefore there's no quicker rate of payment that could be ordered by the court even if it wanted to so in that sense there's no need to 'hide' your proposals.

 

It really is a matter for negotiation now between yourself and the creditor and if you can reach an agreement that can be embodied in a court order (I suppose it could be expressed as a quasi-Tomlin order if you really wanted) but I re-iterate that a creditor may not want to give up the security of a judgment when there's no risk of losing it otherwise. In fact by offering a lump sum to the creditor you may show your hand and they might simply apply for a third party debt order to take the money straight out of your bank account in partial satisfaction of the debt.

 

There's no harm in suggesting to your creditor a set aside by consent in addition to a payment plan or lump sum in theory but I do doubt that you would find them amenable. I imagine the best you could obtain is a certificate of satisfaction and, to be fair, you owe money under a judgment that you haven't paid so you can understand why your credit file should reflect that.

[TheDude1]

Thanks again for your input, I appreciate your time and advice,

I see what you mean, yes the Judgment was 'forthwith', but the court ordered less than £50pm as my earnings are quite low (under £1000pm). The funds for settlement can be made available through my own decision by taking holiday pay and an advance on my wages, so it's not savings I am 'hiding' away, I am close to my boss so no problem there - It's my 'voluntary' choice to access these funds to pay F+F.

 

Thats what I thought about the Tomlin Order though, that there is no risk of the Claimant losing the security of Judgment, as I thought this could be stated as 'Upon Judgment being set-aside and agreed settlement is paid in the stated time - If defendant fails to process the agreed X amount by xx/xx/xxxx (full + final payment) - It will be ordered (as the Defendant agreed in the Schedule) that a new Judgment shall be filed and 'F+F failure penalty charge' of £2000 as the Defendant agreed.

 

or something like that. as known I'm no lawyer!

 

just seems practical to me, that if I agree to pay X amount by this date, and that I agree if I do not make payment by this date, then I agreed I will be liable for the 'pre-agreed' penalty charge of £2000.

 

Wouldn't this give the Claimant some sort of security? Or are they just words that may become un-enforceable even though I agreed to it.

 

 

Found this online, apparently sol's wording:

 

Quote

If you are negotiating a lump sum in full and final settlement or a monthly sum then you can make it on the condition that judgment is set aside. You would then need to both sign a Tomlin Order stating that judgment is set aside and then in the schedule to this you would detail how much you have agreed to pay and when. If you are paying a lump sum or increased instalments they may agree to this but they do not have to. They would then be able to get judgment against you if you defaulted on the Tomlin Order

 

Upon reading this statement, I still can't see how the Claimant would be 'losing their security' of Judgment, as asokn stated above.

 

[asokn]

The reason is that, under the proposed Tomlin order, in the event of your default the creditor could apply to the court to enforce the terms of the order and have judgment entered against you. This would cost them money that they may or may not recover from you.

 

At the moment they already have a judgment against you so some creditors would take the view that all that is being offered is a circuitous and costly route back to where they started. This of course is only one view and not necessarily one the creditor would take so by all means put the proposal to them, but be prepared to explain why it is in their interests to agree to it as on the face of it there's little benefit.

 

Out of interest, where did you find that extract?

[Guest]

Found this online, apparently sol's wording:

 

 

 

Upon reading this statement, I still can't see how the Claimant would be 'losing their security' of Judgment, as asokn stated above.

 

 

quite. why would a cred lose the security of a ccj! they may enter into an agreement post ccj eg instalments on condition that the ccj forthwith will not be enforced whilst maintained. but, there is always the option of variation of the ccj re instalment order for the debtor.

if a ccj is paid within 28 days then it would not be registered.

[asokn]

As the OP has said his application to set the judgement aside was dismissed partly because he didn't apply quickly enough I'm assuming the judgment is by now more than 28 days old.

 

As for the rest of your post Ford, I'm terribly sorry but I can't work out if you're agreeing with me or the OP? Either way it's simply a matter of opinion as to how good the proposal for a Tomlin order is and, unfortunately, it's only the creditor's opinion that really matters now.

[TheDude1]

Thanks for your post,

Ok, so it boils down to more costs.

 

So the risk (and the only risk I assume) from their point of view is putting out more costs?

 

Does Tomlin Order guarantee Judgment again should I fail to pay F+F? Or does it go back to the Claim stage? Surely Not???

[asokn]

It guarantees a judgment in the event of your default, subject to a successful application to enforce the terms of the Tomlin order.

[Guest]

As the OP has said his application to set the judgement aside was dismissed partly because he didn't apply quickly enough I'm assuming the judgment is by now more than 28 days old.

 

As for the rest of your post Ford, I'm terribly sorry but I can't work out if you're agreeing with me or the OP? Either way it's simply a matter of opinion as to how good the proposal for a Tomlin order is and, unfortunately, it's only the creditor's opinion that really matters now.

ok, 28 days has gone.

 

am suggesting that a 'tomlin' with set aside would be highly unlikely. creditor has a ccj, why set it aside. was the judgment forthwith? if so, cred may agree to instalments on condition that they won't apply for enforcement whilst maintained. or, OP can apply to court for a variation to suit. ie an instalment order.? either way, cred is unlikely to forfeit its ccj! or have i misread things?

Edited February 24, 2012 by Ford

[TheDude1]

It guarantees a judgment in the event of your default, subject to a successful application to enforce the terms of the Tomlin order.

 

Thanks again, so it also boils down to how good the Schedule of the Tomlin Order is then?

 

Basically it must be worded from their prospective as fail-safe, bulletproof guarantee of re-enterment of Judgment - Surely a good solictor could guarantee this.

[asokn]

EDIT: This was written to address the query as to whether the risk to the creditor was simply one of costs. Unfortunately I cannot type quickly enough!

 

Costs isn't the only risk but it's the biggest one in practice. Theoretically the creditor may be preparing to enforce the order, perhaps it intends to seek a charging order against your home or issue a warrant against your goods. If it agrees to the Tomlin order it loses its judgment and cannot proceed with enforcement action for the time being so, let's say as examples, the Tomlin order is approved on Monday, you sell your house and valuables to a friend on Tuesday, you default on the Tomlin order on Wednesday and the creditor applies to the court to enforce its terms and have judgment entered against you. In the time it will take to list that application the creditor has lost its only means of enforcing the debt because it put everything on hold; otherwise it could have already secured the judgment or executed a warrant.

 

An extreme example but it does happen!

[asokn]

Thanks again, so it also boils down to how good the Schedule of the Tomlin Order is then?

 

Basically it must be worded from their prospective as fail-safe, bulletproof guarantee of re-enterment of Judgment - Surely a good solictor could guarantee this.

 

It doesn't really come down to that, the point is that even with a guarantee of judgment being entered in the event of default you are only offering the creditor a guarantee of getting something in the future which it already has now.

 

What I'm trying to do is to make you think of reasons WHY a Tomlin order should be accepted by the creditor. You will need to sell it to them in negotiations and have a good answer to the immediate question of why they would agree to give up a judgment for the chance of a judgment being granted in the future.

Edited February 24, 2012 by asokn

[TheDude1]

It's a good example, but yes a bit extreme in my circumstance!!! I see your point though how it could be abused.

 

The debt is very low (£2500+). I have already offered 50% of that Full and Final and awaiting reply, I just wanted them to accept a fiquire first. Before I proceed to tell them my conditions.

 

See what happens! Cheers

 

Cheers

[Guest]

yes, they could accept an amount in settlement of a ccj. but, they are unlikely to forfeit a ccj.

[TheDude1]

Worth a go Ford,

 

Thanks again asokn for your input, will be going over this thread, alot to think about (harder too after a few cans) really helpful thanks

Cheers

[TheDude1]

the point is that even with a guarantee of judgment being entered in the event of default you are only offering the creditor a guarantee of getting something in the future which it already has now.

 

Could it be added in the Tomlin Order though, that I agreed to the conditions of failure to F+F before this date, will result in agreed charge of £2000 (T&C). Can this be done? They would then know, and have the security they would almost gain double the amount of the original Judgment should I fail to F+F.

 

Hell, make it £10,000

 

cheers

Edited February 25, 2012 by TheDude1

[Guest]

Worth a go Ford,

 

 

absolutely, always worth a go.

[asokn]

Could it be added in the Tomlin Order though, that I agreed to the conditions of failure to F+F before this date, will result in agreed charge of £2000 (T&C). Can this be done? They would then know, and have the security they would almost gain double the amount of the original Judgment should I fail to F+F.

 

Hell, make it £10,000

 

cheers

 

I suppose in theory that could be done but bear in mind that such an offer may seem odd in your circumstances, the DCA may well query the likelihood of actually recovering any additional money if the terms of the Tomlin order are breached in the first place.

 

Having said that, it's something to sweeten the deal that little bit more!

[TheDude1]

Thanks again for your help, glad to hear it can be done! Just want to give them confidence that I will carry out what I propose.

 

Copied this post from andyorch's post in another thread.

 

 

IN THE XXXXXXXXXXXXX county court CLAIM NO: XXXXXXXX

 

Between Claimant

 

 

Claimant

 

and

 

 

TheDude1 Defendant

 

 

 

 

Tomlin Order

 

 

Upon the parties having agreed terms of settlement

 

 

BY CONSENT IT IS ORDERED THAT:

 

1: Judgment dated xx/xx/xxxx be set-aside.

 

2. 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.

 

3. 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.

 

4. No order for costs.

 

 

Dated ......................... .......

 

We consent to the making of an order in the above terms

 

 

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

Sols for the Claimant

 

 

 

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

 

TheDude1 ,Defendant

 

 

 

 

 

 

 

 

 

 

SCHEDULE

 

1. Providing Judgment dated xx/xx/xxxx is Ordered to be set-aside.

 

2. The Defendant shall pay to the Claimant the sum of £1500 in Full and final

settlement of this claim on or before xx March 2012.

 

3. If full and final payment is not made on the due date, the Claimant will be at Default to the Tomlin Order and IT IS ORDERED that the Defendant will be liable to the Breach of the Terms of the Tomlin Order.

 

Breach of the Terms of Default of the Tomlin Order are set out below:

 

1: The Claimant shall be at liberty to Order Judgment by Default.

 

2: The Judgment Orders the sum of £5000.

[TheDude1]

Hi there,

 

A DCA has replied to my CCA request.

 

Even though they got a Judgment against me, they have still complied with my request and sent me a copy of a signed "credit card and applicacation form and agreement".

 

But the problem is, 99% of the words are not readable! The only bits I can read are the bits which I filled in 7 years ago!

 

They stated they had to get it off the original creditor, but it looks like they have 'copied a copy' hence the quality has worsened.

 

I expected to read every word clearly.

 

I cannot find a template to re-request CCA, as I do not believe the £1 fee was fully fulfilled as the documents are unreadable.

 

Also, check out the attachments, just out of interest have you seen an agreement like this and do you think it was enforcable? (Regardless of CCJ here)

 

Thanks for your time

cca2.pdf

cca1.pdf

Edited March 17, 2012 by TheDude1

[ims21]

Images are too small...you need to convert them to PDF first

 

Use this method by dx100uk

 

scan the required letters/agreements/sheets

as a picture[jpg] file

remove all pers info inc barcodes etc using paint program

but leave all figures and dates.

 

goto one of the many free online pdf converter websites

it would be better to upload a multipage pdf

than many single ones

or if you have PDF as an installed printer drive use that

or use word and save as pdf

open a new msg box here

hit go advanced below the msg box

hit manage attachments below that box

hit the add files button on the top right

hit select files, navigate to your file on your pc

hit upload files

NB:you can set where it goes in the post by hitting insert inline.

then hit reply button

 

You probably know that the CCJ supercedes the agreement

 

What is it your are trying to achieve?

 

ims

[TheDude1]

Hi ims21,

 

should work now, cheers!

 

Yes, I know it supercedes the agreement, just want to to know if it was enforcable in the first place.

Thanks