Bank breached tomlin order**Resolved**

[why-not-me]

Brief background summary.

 

I had a loan with bank, defaulted and they got judgement and charging order.

 

Took bank to court for PPI on the loan, got default judgement and warrant of execution. Bank applied to get judgement and warrant set aside.

 

We reached a compromise that they would reduce balance of judgement and charging order and amend the same accordingly.

 

They have since sold debt without reducing the balance or amending judgement or charging order.

 

Whats the best way to handle this? can I claim damages?

 

Thanks in advance.

[citizenB]

I will ask others on the site team if they have any ideas on the Bank breaching the Tomlin Order.

[Ganymede]

What were the exact terms of the Tomlin Order.

 

Usually you would just recommence legal action but will depend on the terms of the Order.

[why-not-me]

Thanks.

 

The consent says:

 

1.The Judgement Order date *** and Warrant of Execution dated *** shall be set aside forthwith;

 

2. The Application hearing listed for *** shall be vacated;

 

3. The proceedings are stayed on the Settlement Terms except for the purpose of carrying those terms into effect for which the parties have permission to apply to the Court.

 

4. Either party may apply to the Court to enforce the Settlement Terms without the need to bring a new claim.

 

5. No order as to costs.

 

 

Excerpts from the agreement:

 

1. The parties have agreed the following terms in full and final settlement of the Claimants claim against the Defendant for the alleged mis-selling of the policy of payment protection insurance ...

 

1.1 the Defendant will amend the value of its money judgement against the Claimant and the associated Charging Order dated *** to *** being the total amount payable once the Policy has been cancelled;

 

1.2 the Defendant will further reduce the value of its money judgement against the Claimant and the associated Charging Order dated *** by the sum of ***, being the value of PPI payments made to date by the Claimant (inclusive of interest) (the "Refund");

 

2 The Claimant acknowledges and irrevocably agrees that under the terms of the Agreement (which are not novated, varied, revised, amended or modified by these settlement terms):

 

2.1 the balance outstanding under the Agreement (after implementing paragraph 1 of these settlement terms) will be reduced to *** (the Balance);

 

2.2 the Claimant acknowledges that the Balance remains due and owing by to the Defendant;

 

2.3 Any current and/or future payments arrangement for the Balance is not intended as nor shall be deemed a novation , variation , revision, amendment or modification of the Agreement; and

 

2.4 the Defendant agreement to the terms of this Order is made in specific reliance on the paragraph 2.2 above.

 

3 The Defendant shall pay the Claimant the sum of ***, in respect of the Claimants costs of the claim, within 14 days of the Defendant receiving a sealed copy of the Tomlin Order from the Court.

[steampowered]

'Either party may apply to the Court to enforce the Settlement Terms without the need to bring a new claim.' - if you need to enforce the order make an application to court on form N244, using the original claim number, and attaching a witness statement explaining the circumstances and what you are asking for.

 

However before taking it further you should write to the bank copying the DCA enclosing a copy of the order. Tell them what they need to do, and that if it is necessary to make an application to enforce the order you will claim costs.

 

 

What do you mean by 'They have since sold debt without reducing the balance or amending judgement or charging order.' - are the DCA asking for payment of the full amount? Or are you talking about credit records?

[why-not-me]

I have written to them explaining the issue in detail, along with the terms they have breached - they have had 40 days to investigate (which I don't think they did) and have sent me their final response; they feel that they have not committed a serious breach and I should refer to DCA for PPI refund.

 

I am trying to negotiate a full and final settlement with DCA, but the DCA is unwilling because when they look at the current balance they think my offer is too low - This is because the OC did not honor the agreement.

 

Now that the OC has sold the debt, I can see only two options for OC to enable them to honor the agreement:

 

1. Buy back the debt and do what they were supposed to do

2. Pay PPI refund to me directly as they don't own debt to reduce balance - Am I right in thinking that if they paid DCA without my permission (its my money) then it would be seen as a gift on their part?

 

Point 2 would be my preferred option as it would give me a substantial amount of money to add to the amount I am negotiating with the DCA and would most likely be accepted.

 

I want to claim compensation because their breach has caused me financial harm as the DCA has reject my offers on the basis of the outstanding balance (would this hold water?).

[fletch70]

This may sound like a silly question but are you sure they have sold the debt i.e absolute assignment as opposed to getting a DCA to chase it. I only ask as reading many posts people confuse the two. I suspect you know what you are talking about so I apologise in advance but it is a question that needs asking

[why-not-me]

Its not a silly question. I have had a letter from OC that DCA has absolute rights and is now complete owner of this debt including charging order etc. Also in response to my complaint they refer me to DCA as owner of the debt.

[Ganymede]

Has the new owner applied to court to amend the CCJ and Charging Order to substitute their name?

[Mike_hawk]

Its not a silly question. I have had a letter from OC that DCA has absolute rights and is now complete owner of this debt including charging order etc. Also in response to my complaint they refer me to DCA as owner of the debt.

 

Have you spoken to its counsel?

[why-not-me]

Has the new owner applied to court to amend the CCJ and Charging Order to substitute their name?

 

 

 

I don't think so in assignment letter they it says they will take care of CCJ and CO and I don't have to do anything. When I check credit reports it still has OC's name against CCJ.

[why-not-me]

"Have you spoken to its counsel?" I think I might have to if this gets complicated.

[citizenB]

I dont think they can say you should go to the new owner of the account for the refund.. it was the original creditor who sold and benefited from the PPI - it was they who signed the Tomlin order - it should be they who make the refund.

[steampowered]

Why do the bank feel they have complied with the terms of the order? This sounds very odd.

 

 

If they are in breach of the Tomlin Order I'd be tempted to issue an application against the entity named on the Tomlin Order for an order that they (1) pay the PPI amount within a specified period of time as damages for breach of the order or (2) comply with the Tomlin Order within a specified period of time. The only bit that slightly worries me is I am not entirely sure what is meant by 'reduce the value of the money judgment', its not obvious to me whether they have breached that or not.

[Mike_hawk]

"Have you spoken to its counsel?" I think I might have to if this gets complicated.

 

 

The order and schedule would presumably have been drafted by the OC's counsel, I don't believe you'll get a sensible response from any employees of the financial institution. I'd be inclined to try to engage and resolve with the sols who drafted the order. I'm with SP [i think], the term regarding money judgment seems only to provide the parties with a starting reference point to provide a balance value at set off...... the originating judgment value itself can't be amended without reopening the case so the premise that it could be seems redundant.

[why-not-me]

Thanks SP and Mike_hawk. If you look at terms 1.1 and 1.2 I think it is clear, the language is 'amend' to me that means change, how they would do that is of no concern to me - as you said they drafted the agreement.

 

 

This was handled by the OC's internal sols - a bunch of muppets. I will try and engage them one last time, then I will apply for set aside and try and enforce the original CCJ and warrant I got against them - they no longer own the debt so I don't think they have a set off defence.

 

 

I really don't want them to get away with this at all, they were very aggressive throughout the earlier CCJ/CO process.

[steampowered]

The problem is that, technically speaking, the amount of a judgment can only be amended by the court. It is not something the Defendant could do. I suspect the meaning was clear to whoever wrote it at the time but it is not clear to me now !!

 

It may be that an application to court to formally reduce the amount of the original CCJ is what is required.

[why-not-me]

The problem is that, technically speaking, the amount of a judgment can only be amended by the court. It is not something the Defendant could do. I suspect the meaning was clear to whoever wrote it at the time but it is not clear to me now !!

 

It may be that an application to court to formally reduce the amount of the original CCJ is what is required.

 

 

I agree, so it would be up to the Defendant to apply to the Court to get it amended as agreed? (that should not have been a problem for them).

I would also say the meaning is clear giving the context, like you say (and any competent lawyer should know) the only way to amend a CCJ or CO is by application to the Court.

 

What I don't understand is:

 

1. who is in charge of the CCJ and CO, the new owner of debt or OC?

2. can the new owners apply to get it amended or is it only the OC that can do it?

3. the Tomlin order I agreed with OC can the obligations and duties have passed to the new debt owner or do they remain with OC?

4. could the assignment be faulty because of Tomlin order- the balance of the assignment was wrong as it hadn't been reduced in line with the Tomlin order.

 

If anyone can help answer these questions I would be grateful. I have a feeling that this little drip is going to turn into a flood for the OC.

[AndyOrch]

So was the judgment/Warrant set a side as per the Tomlin Order?

 

Regards

 

Andy

[why-not-me]

So was the judgment/Warrant set a side as per the Tomlin Order?

 

Regards

 

Andy

 

Hi Andy, I think so. The consent part of the sealed order states that " 1.The Judgement Order date *** and warrant of execution dated *** shall be set aside forthwith;"

[AndyOrch]

So how was the judgment re issued ? Did you get a copy of the General Order ? Did you check it to see if the amendment was done?

[why-not-me]

So how was the judgment re issued ? Did you get a copy of the General Order ? Did you check it to see if the amendment was done?

 

I don't know how it was re issued - I really don't understand this question, sorry ???

 

I received a copy of the Tomlin order from the Court - the consent order part of it that says my CCJ and Warrant is set-aside. I am a bit confused?? was I supposed to get anything else from the Court or OC? do you think my CCJ and Warrant against OC is still live?

[AndyOrch]

Yes you need to check that the Judgment/Warrant were ever in fact set a side.You can also check the General Order dates one will be pre Tomlin Order and the other post.If there is not a post judgment then as I surmise ...was never done and the original stood.

 

You really should have had that schedule checked legally...its a nonsense.

 

Regards

 

Andy

[Surfer01]

Advise the DCA that as the debt is being disputed as per OFT guidelines they need to hand back the debt to the bank.

[AndyOrch]

Have you actually checked on Trust to see if you have got a CCJ ? Land registry to check to see if you have a Charging order?