Tomlin order

[freethemice]

Halifax took me to court august 2010.

I was alleged to owe around 28,000 over 3 accounts but the court case was centered on the credit card debt of 14,000.

Many issues including overdraft charges been incorrectly added, incorrect default notices and irresponsible lending. In my mind and in the defence I was formulating these accounts were certainly intermingled.

Anyway I tried to be reasonable and signed a Tomlin order for 13,000 payable over 60 months on the understanding it was in full and final settlement between me and Halifax. It states in the order "full and final settlement of all claims that either party shall have or may have against the other arising out of the matters in this action."

 

The are saying now that this was just for the credit card and are activatly chasing the overdraft and loan.

The Tomlin payment are been made monthly into the overdraft account.

Halifax whisks these away.

No balances on any of the accounts are been reduced in anyway.

 

So where would we stand legaly.

Can they take me to court for a related issue or would they have to apply for the Tomlin order to be removed first.

The payments been paid for the Tomlin order represent my total disposable income. No more money is available as well they know.

 

I know I have made mistakes in accepting and seeking credit but so has the bank. To lend someone far more than they can pay back and then throw at them charge after charge until they cannot pay for even necessaties should be criminal. And all because I co-own a property that has gone up in value.

 

Any all advice welcome.

[AndyOrch]

It states in the order "full and final settlement of all claims that either party shall have or may have against the other arising out of the matters in this action."

 

In respect of consent orders other than Tomlin orders, where there is no schedule and all of the terms of settlement are included within the order, the terms are ordered by the court.

 

Although the courts have jurisdiction to vary or revoke the terms included in a consent order, they are reluctant to do so, since this would entail interfering with a bargain into which the parties had freely entered. Therefore, a court will vary or revoke a consent order only in limited circumstances. In Weston v Dayman(1) Lord Justice Arden said:

 

"I would accept that the court should accede to an application for variation where it is just to do so, but in my judgement one of the aspects of justice is that a bargain freely made should be upheld. Mr Weston clearly obtained benefits under the order… It may well be that those benefits are not as great as he thought, but that is not a matter for this court. In those circumstances I do not consider it would be right for this court to exercise its discretion to vary the order as sought."

 

The same discretion does not apply in respect of Tomlin orders, since the court is not deemed to have ordered or even approved the terms of the schedule. As Lord Steyn said in Sirius International Insurance Co v FAI General Insurance Ltd: "The settlement contained in the Tomlin order must be construed as a commercial instrument."(2)

 

The court therefore does not have the same procedural powers in respect of the terms included in the schedule to a Tomlin order. Aside from the fact that the parties may apply in the proceedings to court to enforce its terms, the schedule is generally to be treated like any other settlement agreement not attached to an order.

 

 

Regards

 

Andy

[asokn]

I'm not sure what Andyorch is trying to get at there so I'll have a go. The Tomlin order dealt with "matters in this action". Based on your post that "action" (or claim in the new vocabulary) dealt solely with your credit card debts. Therefore your overdraft is not covered by the order and the creditor can pursue you.

 

However, I note you say that you included in your defence issues relating to the overdraft so did the claim deal solely with the credit cards or did it mention the overdraft?

[AndyOrch]

I'm even more confused what asokn is trying to get at also, If the initial P.o.C pleaded all the debts ie CC/Loan and O/D then your TO is an agreement to all " "Full and final settlement of all claims "

 

Regards

 

Andy

Edited March 22, 2012 by Andyorch

[asokn]

Indeed, but *if* is the operative word. Basically, did the claim include the overdraft or not? If it did then it is dealt with in the TO if not then it is not and the creditor can issue a fresh claim in relation to it.

[Ganymede]

Can the OP type up the Particulars of Claim from the Claim Form please to settle this once and for all.

[freethemice]

Thanks for the responses.

 

original poc's:

 

The claimants claim is for 14k presently due pursuant to a credit agreement entered into by the parties, full particulars of which have been supplied hithero.

By an agreement dated 07/03 the defendant has an account number CDE with the claimant. The defendant has delayed or failed to adhere to the terms of the default notice issued by the claimant under the consumer credit act 1974. The balance due as of 0// on said account is:

14k

 

The card number they supplied was for an old card that had migrated to a new number so the account claimed for was at best fudged.

 

1. The point I would pursue is that to atchieve settlement their barrister assured me this was for full and final settlement of all issues between the parties at court

2. The overdraft was entirely due to Halifax charging me a erroneous £90 charge (which they have never explained) and this compounded to a 2k overdraft which caused the defaults on the Loan and credit cards as I was deprived of funds.

 

How can a lender act in a way on one account so as to force a default on another account?

 

Bottom line is I am paying all I can to the Tomlin order and there is nothing left in the pot.

Halifax are well aware of this having rejected my application for hardship on the overdraft.

 

original thread:

G v Bank of Scotland ***Reduced Settlement via Tomlin Order***

Edited March 28, 2012 by freethemice
thread added

[asokn]

Well, it seems you settled the credit card claim by TO. The overdraft however wasn't part of the claim and so can be pursued separately.

[AndyOrch]

Can you type out verbatim the precise wording of the Tomlin Order and Schedule Freethemice?

 

Regards

 

Andy

[freethemice]

the tomlin order forbids that and other eyes do peruse these forums.

 

I am quite happy to carry on as if the overdraft is outside the Tomlin order.

There is the little issue over the £90 charge which sparked the spiral of charges.

There is the 2 letters I have from Halifax stating explicitly that these bank charges were a genuine estimate of bank expenses incurred to deal with unpaid items ect. Directly against what they said in the high court.

There is also the fact that the £217 for the Tomlin order has been paid monthly into the overdraft account and it magically disappears a fortnight later. They seem to write some weird internal check to a diferent account. The money vanishes but no balance is reduced loan/card or overdraft and no statement issued.

I thing they could get in a fair tangle in court with the above.

How can the account be closed if money is still going in and out?

How can it be a credit account when no interest or charges are added or have been for the past 2 years?

[freethemice]

I was paying instalments into the current (overdraft) account and the other side was happily taking these payments and whisking them away until Sept of this year.

I was still been chased though by DCA'a over the overdraft.

I think one of my letters about the current account asking "How can it be a credit account when no interest or charges are added or have been for the past 2 years?" must have spooked them though as they have now closed the current account and sent me a cheque back for £217 as "overpayment"

I believe despite the refund they are still intent on claiming the £2000 alleged to be owed (fees built upon fees built upon an eroneous £90 charge that was never explained)

 

Thing is now I am reluctant to remake payments as they insist future payments go to the credit card account and I am still pritty insistent the overdraft formed part of the oringal Tomlin order as I would have used the £2000 overdraft as a set off defence as well as claiming they deprived me of fund on this account so preventing me making contractual payments and causing the default in the first instance.

 

Quite clearly if they unlawfully deprived me of funds in account A I could not pay account B as demanded.

 

If I do make payments to the new account as requested the Dca's will still pursue me for the overdraft. The Tomlin Order represents my entire free money for debt management. They do not seem to acknowledge this or even care.

 

If I do not it will go back to court and I am unsure of what will happen.

 

Advice please ...

[Mike_hawk]

ftm

 

Community care judgment may assist.... http://www.bailii.org/ew/cases/EWHC/QB/2010/959.html

 

Is this.....'It states in the order "full and final settlement of all claims that either party shall have or may have against the other arising out of the matters in this action." within the order or the schedule attached to the order?

 

Is there an express provision to vary within the order or schedule?

 

If not currently up to date on payments I would suggest you correct immediately, if the other side returned Septembers payment it will look a little foolish attempting to enforce the schedule.

 

Was an account number/sort code not established and agreed for payments at the outset, have the other side provided details for an account having now terminated the current/overdraft facility?

 

Assuming Halifax instructed sols in the case they should be sensible enough to provide banking details

[freethemice]

The other side has provided account details to pay the Tomlin order but the number was wrong.

I made sure I paid the arrears and got the court costs and something for my time.

 

The agreement is continuing.

 

Only problem I have now is I get no statements and have no idea how much I have paid off.

Makes it very hard to manage as my payments go to my ex who pays out of her bank account (I do not have one) so I do not know if she is paying or not.

 

Are they still legally obliged to send statements or does the Tomlin order stop this need?

[AndyOrch]

If the debt has not been assigned and still with the OC then you should get your annual statement and Notice of Arrears CCA2006 Amendments.A Tomlin Order does not eradicate the need for accountancy...request one.

 

Regards

 

Andy