Advice please as to alternative to tomlin order

[closetoyou]

Please could someone advise me please. I owe £10,200 to Barclays. I was made redundant and as a result, could not afford the full repayments on my credit card. Barclays applied for a Court Order and it meant that because of my work background, any Court Order would make it impossible to get a job within my specialist field. My brother paid my arrears, as I had the offer of a job which would have got me back on track. I paid and the bank agreed to drop the application for a Court Order. Two months later, I got a phone call from the job vetting agency telling me there had been a problem in clearance, followed by a letter from the Court telling me that a Court Order had been granted in my absence....the bank had failed to tell their legal department, I was up to date with the payments and went ahead. As a result, I did not pass the vetting for my job and remained unemployed and could not pay the amount required each month. Barclays, admitted their mistake but bulldozed on with a application for a Charging Order on my house. I attended Court, explained everything to the judge and he immediately revoked the Court Order and did not grant a Charging Order. The bank solicitor just kept requesting something like Alliance and Leicester versus someone, a ruling from the past which i think, requires a reasonable amount of time to pay a debt. Mine would take 20 years. However, the judge said he would review the case in 3 months. I attended after 3 months, and another judge, was unhappy with the whole procedure and defered it til another 4 months. The judge said that owing to my job background, i m,ay want to make a voluntary agreement - his words - with the bank. I later wrote to Barclays and they agreed and sent me papers regarding a Tomlin Order. I have read up on this but am confused. Will it ever show up to anybody that wishes to check, that I have an Order against me?. I still believe, the bank want it noted in the land registry that they will have an interest. If this is public, as it is, is it assuming that I have some financial debt and would be associated with some kind of Order.

The most important question I have is this

Does a judge HAVE TO issue a Court Order under the Alliance and Leicester ruling, if the debt cannot be repaid within a reasonable amount of time?

I have been to Court three times now under a review. The judge has been, it seems, sympathetic to how I have been treated by the bank and so far, have no orders against me. BUT.....will there come a time when he HAS TO agree to an Order, seeing as I cannot pay back the amount within 5 years

Don't get me wrong. I owe and I will pay. Do I go for the Tomlin Order or bank on a judge not making an order and continue with my 70 pounds per month I have been paying? If I get a Court Order, it is a farewell to a job within my expertise and the financial situation will be horrendous... Thank you all very much.

[Mike_hawk]

Tomlin orders are not recorded and can be subject to non disclosure if drafted correctly. They stay the case, hence no CCJ. I've witnessed Tomlins for as little as £10.00 per month for similar values so yours is not extraordinary.

 

Assuming you mean the default arrears were settled within time they would have no case

 

Are you able to post a copy of the schedule they propose?

 

Bliddy long post for 1 simple question

[closetoyou]

Hi ..Many thanks for your reply, it is appreciated.The reason the post was long was I tried to give a background story but it seems I still did not make it clear, that it was Barclays fault they went ahead with the application for the Court Order, as my brother paid £560 to bring the monthly arrears up to date. Barclays said they were ok with this but a breakdown in communication meant their solicitor went ahead and I then had to attend to say why the judgement was made in error.I did not get the job through their error and because of this, I do not pay the minimum amount every month so they started theprocess again. As I said, each time I have attended, no Order has been granted.

I also did ask a question. Does a judge HAVE TO issue a Court Order under the Alliance and Leicester ruling, if the debt cannot be repaid within a reasonable amount of time? and also the question Do I go for the Tomlin Order or bank on a judge not making an order and continue with my 70 pounds per month I have been paying?

I will not post the whole Tomlin Order proposal but what is concerning me is that there is no confidentiality clause and it asks that I put a voluntary charging order for my house with the Land registry, so it takes me to the other question I asked above, ". I still believe, the bank want it noted in the land registry that they will have an interest. If this is public, as it is, is it assuming that I have some financial debt and would be associated with some kind of Order."?

 

Would appreciate some help and does anyone know the Alliance and Leicester versus ? ruling always refered to.??

[Mike_hawk]

Hi

 

I got the gist of the original post, not being entirely sure of what has already gone before it's difficult to suggest any other options.

 

Assuming the original default was rectified in the stated time pre filing there would have been no cause for it to issue and no case to answer. If you came to an agreement with it to extend the period to pay it should have been estopped from continuing [absent any breach]..... hence the set-aside. Bear in mind it could have revoked the agreement but it doesn't appear from your posts that it did.

 

The reason for the current default [i assume it has defaulted the account again?] was your inability to pay as a consequence of its previous action in compromising your job prospects.

 

I'm just wondering if this is going round in circles as it had no cause at the outset and still may not depending on the current default position.

 

Have there been no costs ordered in the case yet?

 

A&L reference below...... essentially they want an order determining full settlement in a reasonable period. £10,200 at 70 per month is just over 12 years so it's not entirely unreasonable or too long a period.

 

Alliance and Leicester v Slayford Times, December 19, 2000:

 

“[N]o Judge could properly exercise the power conferred by section 71 of the County Courts Act 1984 to make an order for payment of a money judgment by instalments which it was known would not satisfy the judgment within the lifetime of the debtor or indeed within a reasonable time.”

 

Perhaps if we could see the particulars of its claim and if you could confirm the default position at the time of filing [and now] it may help anybody looking in to get to grips with it. Also your defence and whether you've made any admissions within proceedings would be helpful.

 

Tomlin....... if you feel their cause is correct and you don't have a defence and want to use the opportunity to settle Tomlins are no bad thing, if there are terms within the schedule you really can't settle on you'll need to negotiate with the other side and draft alternatives. Just wondering why you stated 20 years in your earlier post, have the cheeky sods grafted their costs into the schedule when they have effectively lost at both previous hearings?

 

The rest of it really falls to general loss to credit and consequential loss/damage....... Durkin is being heard in the Supreme court next year [i think] so unless you have very deep pockets and want to take the risk of applying for relief to counter claim now it may be worth the wait and bring proceedings in the future depending on the outcome of that case.

[closetoyou]

Mike...apologies for the delay in replying as I had no internet service.I spoke to Barclays..they got back to me quickly and said they would put a confidentiality clause in the Tomlin Order, however they will not accept a charge NOT being put on my property. This, as far as I can see, defeats the object of a Tomlin Order so that debt can be kept quiet as not to harm job prospects once a check is done on my address for vetting reasons...You are correct about this going round in circles as it has for over a year..once the original CCJ was revoked on my appeal, Barclays tried again and each time, the judge has deferred the case as my job prospects would have been compromised. I have not been able to increase the payments. I checked the amount they would be claiming and it was reduced...thank you for that bit of sums you did for me...and they are asking for no costs at all. I am just in a total quandary as this Tomlin Order.......If I don't sign it because of this Land Registry clause, will it backfire and end up with me getting a CCJ as I have no doubt, they will not be happy with anything less than a charge on my flat whether voluntary or enforced.

 

It was also pointed out to me, that the "reasonable time" as in the Alliance and Leicester ruling, was decided by the Lord Chief Justice, was 5 years.

 

My admissions during the proceedings were only that I owed the money and as I said, CCJ would harm my prospects.

 

This is now my position.

I have a imminent Court date for a pre trial review, although Barclays seem to think it is a trial (if no Tomlin agreement is signed by me beforehand)

I have continued paying the £70 despite not working(through a broken pelvis accident} last time I was at court.

The court were aware of my accident as I forwarded medical certificates to them and a date was re arranged.

 

Whilst I would never ask for a prediction, are there any instances when a judge will NOT issue a CCJ or later a Charging Orde???...I am worried if I don't sign this Tomlin, it will come back to bite me when official avenues are taken by Barclays?

I really do appreciate your help and thank you again.

[Mike_hawk]

Hi

 

 

Always a possibility you could argue the case but....... it'll be a uphill battle if you've already made an admission and you would be exposed to significant costs if you lost. Surprised there's been no order for costs in the case to date?

 

Has it provided you with a draft notice for the charge?

 

I'm not altogether clear on what can and cannot be stated but I'm fairly sure if it's a mainstream clearing bank with a disposition type notice it wouldn't look out of place and would/could appear as a 2nd charge mortgage.

 

Depending how long you have left to decide, ask it to provide its draft copy of land reg notice....... you may find you have nothing to worry about.

 

As for the rest of the t/o, if Barclays give the appearance that its in a rush to settle try a little negotiation..... if the notice seems ok, try countering with an offer of say 60% to be drawn into terms.

 

Appreciate it's not for everybody to post the full content of a t/o on a public forum. Absent sighting it, it may be prudent to ask a solicitor to give it the once over prior to signing...... don't blindly sign if you're not sure of the effect of a term.

[Ganymede]

Mike is right we need to see the full terms of the Tomlin Order plus the wording of the charge.

 

Closetoyou, why would your employed carry out a Land Registry search for Office Copies of the title to your flat?!

[closetoyou]

Hi....thank you very much for your replies.I have copied the words of the Tomlin Order I have been ask to sign by Barclays.

I am an honest person in as much as I totally agree with repaying my debt because after all, I borrowed their money so I don't have a problem admitting to Court what I owe and the fact that I will pay it back. The bank seem adamant they will not agree to anything else other than the "concession" of a Tomlin Order but the actual Charge logged with the Land Registry must be made, either voluntarily, or else they will begining the process they started over a year ago, which as, you quite rightly say Mike, has gone round in circles.

 

TOMLIN ORDER

 

1. All further proceedings between the claimant and defendant in this action be stayed except for the purpose of carrying the schedule terms into effect and for that purpose, the parties have permission to apply

2. The defendant agrees that the credit agreement into on or about –date - account – number – and debt of amount is enforceable against him inclusive of all interest,costs,charges, and disbursements is recoverable against him

3. The parties agree that the debt will be paid by monthly instalments of £70 per month on or around and thereafter on or before the first day of the month

4. For the avoidance of doubt, time is of the essence.

5. The defendant agrees to the debt being secured by the placing of a voluntary equitable charge at HM Land Registry against the defendants property

6. Should the defendant breach any of the previous conditions, the claimant will give 14 days to rectify any default and upon failure to rectify the default, or if there is any alternative reason why the voluntary charge cannot be registered, the balance of the debt shall become immediately due for payment. And the claimant should be at liberty to enter judgement for the remaining balance

7. In the case of paragraph 6, the defendant agrees to indemnify the claimant for its costs incurred in seeking judgement and enforcement.

8. The parties agree to keep the provisions confidential and the defendant agrees not to disclose any of these provisions to any persons not party to it,save as may be necessary for the purpose of implementing the terms of the settlement and save that the defendant shall not be in breach of this cause in disclosing matters if compelled to do so by a Court or authority of competent jurisdiction.

 

Gany, to be successful in the application for a job in my field, I would have to be vetted including address among other things...the "voluntary equitable charge" order, I am being asked to agree to in the Tomlin Order,would make this public to anyone who wishes to check surely? So the whole point of the Tomlin being something that can be kept quiet, for want of a better phrase, is pointless?

[Ganymede]

Can you tell us what job you are apply for? I find it hard to believe that they will carry out a Land Registry search.

 

If you get a draft of the charge it will help. I'm guessing but the charge will probably not say it is a debt as such, will just say that there is a charge in their favour and will look "normal". Need to see it to be sure as this is a guess and so you should seek legal advice from a fully insurer legal professional.

[closetoyou]

Hi.. many thanks for the reply.There are jobs within the legal, medical and some other forces which vetting extends to checking where the applicant lives and checks are done on address given. It is also disciplinary to be in debt in such professions.I know because I have had to do this in the past I have not been given any draft of the charge...I never asked for one as I thought they were generally standard forms...

 

With regards the "reasonable " aspect of the A & L v Slayford Times............have you any idea what the judge might deem as reasonable if it is not defined by law?

Would 20 years be deemed "reasonable "time to repay a debt if the defendant was 35 yrs old.or what are their guidelines issued by Lord Chief Justice..I keep thinking 5 yrs for some reason

 

You can see by my first lengthy post, that this has gone round in circles and although I have been back to Court the CCJ and interim order on a charging order was revoked, I feel eventually the judge would have no choice than to grant in Barclays favour...what do you think?

[Ganymede]

I'm a solicitor and have never heard of the SRA carrying out Land Registry searches, and even if they did it would only show a cgarge. Also, it is only a disciplinary to be bankrupt as you can't practice not to simply be in debt - If it were I would be in trouble!

 

A Tomlin Order is not a CCJ as it is an agreement between the Parties.

[Mike_hawk]

Closetoyou

 

There are a couple of terms that could be a little more favourable... I'd be inclined to press them on the matter

 

I think you need to see a draft notice, tbh the possibility of recording to CRA's will be far more damaging than a 2nd charge notice

 

Have added some comments below

 

 

TOMLIN ORDER

 

1. All further proceedings between the claimant and defendant in this action be stayed except for the purpose of carrying the schedule terms into effect and for that purpose, the parties have permission to apply

 

2. The defendant agrees that the credit agreement into on or about –date - account – number – and debt of amount is enforceable against him inclusive of all interest,costs,charges, and disbursements is recoverable against him

 

It's only personal opinion but I think 2 [above] goes a little too far in it's favour and could lead to a misunderstanding in the future. Try to get it to amend to 2 below

 

2. The Defendant shall pay to the Claimant the agreed balance of £xxx outstanding on xxx account number xxx being without interest or any further charges or fees

 

3. The parties agree that the debt will be paid by monthly instalments of £70 per month on or around and thereafter on or before the first day of the month

 

4. For the avoidance of doubt, time is of the essence.

 

5. The defendant agrees to the debt being secured by the placing of a voluntary equitable charge at HM Land Registry against the defendants property

 

6. Should the defendant breach any of the previous conditions, the claimant will give 14 days to rectify any default and upon failure to rectify the default, or if there is any alternative reason why the voluntary charge cannot be registered, the balance of the debt shall become immediately due for payment. And the claimant should be at liberty to enter judgement for the remaining balance

 

7. In the case of paragraph 6, the defendant agrees to indemnify the claimant for its costs incurred in seeking judgement and enforcement. And the Claimant shall indemnify the Defendant for its costs incurred in seeking restitution for any breach of this agreement.

If it agrees to non disclosure a reporting to CRA's should also be agreed

8.The Claimant shall make no reference to any Credit Reference Agency in respect of xxx agreement number xxx and shall correct any entries that have been made to date.

 

8. The parties agree to keep the provisions confidential and the defendant agrees not to disclose any of these provisions to any persons not party to it,save as may be necessary for the purpose of implementing the terms of the settlement and save that the defendant shall not be in breach of this cause in disclosing matters if compelled to do so by a Court or authority of competent jurisdiction.

 

[closetoyou]

Hi.....would the register show a charge in favour of a Bank? and if that was the case, would it be fair to say whoever is doing the check could guess there is some debt involved. Certainly within the police service, it is a disciplinary matter to be in debt and any vetting would involve address checks. When you say the land register would only show a charge, does it give full details to whos favour, ie in this case, Barclays?.many thanks

[Ganymede]

Hi.....would the register show a charge in favour of a Bank? and if that was the case, would it be fair to say whoever is doing the check could guess there is some debt involved. Certainly within the police service, it is a disciplinary matter to be in debt and any vetting would involve address checks. When you say the land register would only show a charge, does it give full details to whos favour, ie in this case, Barclays?.many thanks

 

 

Where are you getting this inofrmation from? So a Police Officer cannot get a mortgage, loan or credit card out as they can be disciplined for being it debt? I very much doubt that.

 

Are you applying for a Police position? Can you tell us what job you are applying for?

 

The charge will say who is it in favour of yes. It will name the bank.

 

I am still finding it very hard to believe that ANY job would involved a Land Registry check against you property. The idea of it is preposterous.

[closetoyou]

Hi..sorry for the delay in replying ...i have very limited PC access at the moment..I cannot speak for the other professions, but I can say with 100 per cent absolute conviction, rthat it is a disciplinary offence within the police service to be in debt...having said that, of course you can have a mortgage and credit card but you cannot let it become unmanageable. I triple checked this and spoke to a federation representative who is intervening in a disciplinary action against an officer who is facing bankruptcy...there would be no chance of a position within the service with any CCJs. It is written within Police Regs

[closetoyou]

Regulation 6..." wilfully refuse or neglect to discharge any lawful debt"...I am told that certain other professions are subject to similar regulations.

[Ganymede]

Now there is a word of difference between being declared bankrupt and having CCJs and being in debt...

[closetoyou]

Hi...thanks for your reply...The question on an application form..Have you ever neen declared Bankrupt, had CCJs or had any bad debt registered against you?...That last bit covers a multitude of sins I think. I would imagine that they would want you to say if you were or had financial difficulties.

[Mike_hawk]

Is it a bad debt?...... it's a possible default [unproven so doesn't in itself make it bad] compromised by a new agreement - the Tomlin order. If its registered on your CRA files now and you can agree #8 in my post above to rectify, it will effectively state that there is no reportable debt.