HPH2/Cohen claimform - old Abbey OD from 1992

[shamrocker]

Thanks RMS. I'm sorry to hear that it didn't go your way, but it was a bit of a tall order with so little time to prepare. At least you got a chunk knocked off - when the dust settles, you'll take some heart from the fact you stood up for yourself.

 

Did you mention the default notice?

 

Sham

[RMS]

Well, I turned up in good time

 

before I had checked which court number I was in or announced myself to the usher, the opposition solicitor pounced, and called me into a room.

 

Under the pretence that as I was a LIP, he had a duty to inform me of the proceedings and what happens (I'm not so sure).

 

He then gleefully took the opportunity to offer me a Tomlin order, all nice and agreed, no one else gets to know, no CCJ, no HCEO (bailiffs). I said,

 

how much were they looking for, "oh, the full amount" and he didn't mention it at the time, thinking I would just be confused and want to leave court, probably his fee neatly wrapped up in this Tomlin order.

 

I said, well there is nothing in it for me then, "but no CCJ", I said, I don't care about a CCJ, I don't use credit any more

- you should have seen his face, I wish I had a camera.

 

I said, I'll take my chances in court, "but it's an open and shut case". I said, so what,you haven't brought anything to the table, no negotiation, it will be the same whether I go to court or not and I'm here now. I don't think he was impressed with my blase attitude or had many too many like me.

 

So in we went.

The problem for me, right from the start was, they had copies of the original documents from 1992,

 

I did admit in my defence that I had banked with Abbey/Santander (I couldn't really deny it) and therefore in the end, the overdraft plus some other money I had racked up was payable,

 

I could see which way it was going. The word technical was used a lot, technical defence this, technical that.

 

It very much centred around a terms and conditions booklet on current account and associated facilities including a section on overdrafts.

 

I did try to argue that they hadn't supplied a copy of the original overdraft taken out after the current account had been in use for some time, and surely that was required.

 

The statutory demand came up and took a fair bit of time.

It was argued that one was not needed for an overdraft, as the conditions say the facility could be withdrawn at any time.

 

The judge said, presumably that one could still be issued if needed. I don't think the judge was fully conversant on the matter and I certainly wasn't, so in the end it was let go as not required by law.

 

We came to the charges, the judge thought they were unfair, anyone with half a brain, could see at this point, he was looking to award to the claimant, but remove the penalty charges.

 

Most would have accepted, but not mister solicitor, so he was given leave to phone the client and came back and said no, they wanted all the charges as well.

 

You could see the judge starting to get exasperated at this point, with his hint,

 

I'll award you the claim, but let go of the charges until it got to the point where he said,

"Then we will adjourn to a later date, you will need a copy of the default notice, the original overdraft and we will go through it with a fine tooth combe, i.e. if you're going to be difficult, so can I, and it might be a different judgement next time.

Lawyer man was still wanting to argue it out, but bit his lip very hard to stop himself saying anything.

 

Judge did his summing up, awarding to the claimant, penalty charges to the defendant. Lawyer went through balance of debt, court costs and allowed court interest. And then wanted over £200 for his time.

 

Judge asked why, "for bringing a waste of time defenceless case to court" - he didn't say those words, but that is what it equated to. Judge said that he didn't see it as a wasted case and under the conditions and technicalities of the case, Mr.RMS had defended quite well and put forward some interesting objections, costs denied.

 

I really don't know why they think a Tomlin order with no reduction in debt, would be of so much interest to people.

Yes, okay, I now have a CCJ, but saved about £800 in costs plus over £200 in solicitor's fees, so I am about £1,000 better off, and the look on the lawyer's face when I said I don't care about a CCJ, will stay with me to my dying day.

 

Now, can somebody tell me what happens next when you can't pay it all, and pitiful monthly payments?

Who sets the payment levels?

If it is the claimant and they are too high, who do I go to to be the arbiter of that decisions.

Are there any organisations that help people out, take it on and make it almost impossible to go down the bailiffs route?

 

Also if it did go that way, I think I would fall into the vulnerable category, because I had a stroke last year and my liver almost collapsed.

 

I see people at the stroke rehab, the liver specialist (hepatologist) at the local hospital, the hospital dietician, because I have to eat in a certain way, because my liver doesn't process food like others, my GP regularly for check ups and blood tests. They even keep asking me to come in for my free flu jab because I am on the at risk category. I also take 8 prescription medicines a day, and I don't mean vitamin C, I mean some real serious ones.

 

Any help with regards to the latter part would be helpful.

I will also try and answer any questions on parts I may have missed out on the case or questions people have as to where something else might have worked.

 

All I would say, they have original copies going back a long time, in my case 1992 and they don't really want to compromise, they don't even like settling for an 85% win, they see that as a 15% loss in revenue.

 

I hope people appreciate, that as hard as it was for me, that I didn't get the result I wanted, I didn't just disappear, never to post again, I came back and told my story.

[shamrocker]

Hi RMS... Sorry that I'm only replying now - I read your report not long after you'd posted it today but didn't have time to reply then.

 

I think you could have got them on the default notice if you'd had a bit more time to prepare and challenged it via a witness statement. Something tells me they don't have an original or they'd have produced it. Maybe I'm missing something though, or just wishful thinking.

 

It could have been worse though, and you gave it your best shot - so look on the positive. It's an experience for you, and fair play for standing your ground with the sol.

 

Andyorch can probably advise you better on the repayments end of things. My understanding is that you'll need to contact the claimant and explain your circumstances - see what they're willing to offer. I'd guess they'll not offer you anything as low as you what you have in mind. In any case, assuming the judgement is payment forthwith, the proper way it to apply for a redetermination and the repayments will then be decided by the court. Think I've already touched on this via PM. How about you wait for the judgement paperwork to arrive and then post some details up here. You can then get some advice on the best way forward. Your income position is a little unusual, so it's difficult to say what way things will work out. I'm sure the court will be very sympathetic to your health situation too and when you state your case, the judge would try to come to a fair arrangement.

 

Thanks also for coming back and sharing your experience. Shame we didn't come away with an outright victory, but they didn't get a walkover either!

 

Sham

[AndyOrch]

Many thanks for coming back and adding the conclusion RMS.With regards to the judgment I assume it is a forthwith.....simply submit an N245 and make a proposed monthly payment....once this is in the system that will block any attempts of enforcement....fee is £50

 

Regards

 

Andy