1st credit claimform - LLOyds card - Defended, DQ/Mediation help

[AndyOrch]

All you can do now is rely on your witness statement and initial defence.....versus what they have disclosed and what they will rely on by way of their witness statement...you are very much at the mercy of the judge and how he perceives the claim and defence.

[69Eyes]

I would hate to do it, but if I'm looking at a 50/50 chance of a CCJ, I'm tempted to pull the plug and try and set up a payment plan with them. Or vibe out the judge on the day and if he seems hostile, then offer to do that on the basis of the new evidence.

[AndyOrch]

May be of interest to you...the last couple of pages

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?459432-Claim-form-Moon-Beever-1st-Credit-HSBC-overdraft-debt/page3&highlight=tomlin+order

[69Eyes]

Thanks Andy. I guess it might be wise to call them tomorrow and seem an agreement. What are the possible outcomes of the hearing if I didn't?

 

Is it one of: 1. Unenforcable claim or 2.CCJ?

 

Or does the potential exist for further negotiation? (e.g. in light of docs supplied last minute)

[AndyOrch]

What I normally find is if the claimant has troubled to actually disclose...they intend seeing this through trial...and on the basis of what they have disclosed...unless you get a particularly savvy District Judge ...most will accept what has been disclosed as enforceable...on the balance of probabilities...an application with your sig and a debt...therefore I really cant see you attaining success..

 

They have followed due process with regards the court directions...so again nothing to pull the rug with.

 

Therefore I would contact their Solicitors and propose a settlement by way of a Tomlin Order...you have read the finer details of this process in the link I provided earlier.

I would ring them first thing tomorrow...considering a hearing is imminent...and see if they are open or willing to consider this.

 

Regards

 

Andy

[69Eyes]

Ok I will do that. Sorry for keep twittering on. I never expected this thread to get to 4 pages....

 

I got excited at the thought of unenforcability, because they wind me up so much.

[AndyOrch]

It may well be unenforceable......but can you bank on getting a fair District Judge prepared to listen to your argument?

[69Eyes]

My thoughts exactly. I don't think I want to take the risk.

 

One last thing, and then I'll definitely shut up. I got the impression from post 62 that if I did let it go to court, there could only be 2 possible outcomes - either CCJ, or unenforcable. (I.e. there is no option for negotiation after that). Is that correct?

[AndyOrch]

My thoughts exactly. I don't think I want to take the risk.

 

One last thing, and then I'll definitely shut up. I got the impression from post 62 that if I did let it go to court, there could only be 2 possible outcomes - either CCJ, or unenforcable. (I.e. there is no option for negotiation after that). Is that correct?

 

Post #62 refers to lack of service of a Default Notice....if you are adamant that none was served.....and the claimant cant prove it was served either then sec 87 of the CCA1974 then kicks in...this does not invalidate the agreement or cast doubt on its effectiveness to enforce...simply its procedure that one must be served....to enable enforcement or seek relief of the agreement.

 

http://www.legislation.gov.uk/ukpga/1974/39/section/87.

 

You are past chances to negotiate apart from raising the issue of a Tomlin Order which I have already covered.....if it gets to trial and you do get a judgment...then its either paid by the required date or you get a judgment (CCJ.)

[69Eyes]

Ok, got it. Ta very much for clarifying.

[69Eyes]

The Tomlin has been set up and signed (albeit with clenched teeth).

 

A big thanks to all of you for your input, I would have been lost without your kind assistance.

[AndyOrch]

If you would like me to check the terms (even though you have already signed and agreed).....just let me know 69Eyes

[69Eyes]

UPON the claimant and the defendant agreeing the terms set out in The Schedule hereto

AND UPON reading the written terms of the parties

BY CONSENT IT IS ORDERED THAT:-

1. All further proceedings in this claim be stayed save for the purpose of carrying the terms of this Order and the attached Schedule into effect, and for that latter purpose the parties do be at liberty to apply; and

2. There be no order as to costs.

 

 

This is the Schedule referred to in the Tomlin Order (‘the Order’) made on even date.

In full and final settlement of all issues and matters raised in present action (whether pleaded or referred to in witness statements or correspondence and including without limitation the existence, assignment, validity, enforceability and quantum of the debt claimed by the Claimant), the Claimant on the first part and the Defendant on the second part agree as follows:

 

1. The Defendant shall pay the sum of £xxxx.00 to the Claimant as a debt in accordance with the following provisions. The Settlement Sum shall be paid by way of the following instalments and to reach the Claimant in cleared funds by not later than 4:00pm on the first business day of each month.

a) £x.00 per month commencing 01 April 2016 for 12 months then

b) £x.00 per month commencing 01 April 2017 for 12 months then

c) £x.00 per month commencing 01 April 2018 for 12 months then

d) £x.00 per month commencing 01 April 2019 for 12 months then

e) £x.00 per month commencing 01 April 2020 for 12 months then

f) £x.00 per month commencing on 01 April 2021 for 6 months then

g) One final instalment of £x.00until the entire sum of £xxxx.00has been paid in full

 

 

2. In the event of any default by the Defendant in complying with paragraph (1) (a) to (g) of this Schedule, however minor or de minimis, and whether remedied or not:

(a) The entire balance of the Settlement Sum then outstanding shall automatically become due and payable immediately as a debt and shall accrue interest at the rate of 4% per annum compounded daily on the entire outstanding balance of the Settlement Sum owing from time to time until the date of Judgment (after which interest shall accrue on the judgment sum at the judgment rate pursuant to statute) or sooner payment; and

(b) The Claimant shall be entitled to apply for judgment on the balance of the Settlement Sum outstanding in accordance with paragraph (2) of the Order.

Edited March 14, 2016 by 69Eyes
redacting identifiable info

[69Eyes]

Thanks Andy. Key points: £50ish a month. It goes up a fiver a year. They added on the court costs to the balance. I guess I could have argued for a settled marker on the credit rating (as on the thread you pointed me to), but it was so late in the day I didn't feel I was in a position to argue.

[AndyOrch]

That's fine...I would of argued each party bear their own costs ..unless you got any settlement reduction ?

 

Still it avoids a CCJ and it puts the matter to bed.

 

Andy

[Guest]

yes, a tomlin amount cld even be re a reduction. also dont like that interest clause (if it was judgment with an instalment order, or even a Time Order, there wldnt be any extra interest?), or the auto increase in payment amount (shld at least be subject to a periodical review of financial circumstances)

anyway, as said, its to bed.

[AndyOrch]

Agreed Ford there should be no inclusions with regards to interest...interest is only applicable if they got judgment which would then incur 8%. up until date of judgment.

 

Still its only a concern should the Order be defaulted on.

[Guest]

69eyes

what is the tomlin amount compared to the actual claimed amount on the claim.

[69Eyes]

The original claim was £3.5k, they added 250-ish on for court costs and 90 for sending someone to court. But the tomlin amount is 4.2k so something is amiss. I have asked them for clarification.

 

They seemed reluctant to go for the tomlin ("isn't it a bit late for that?"). I told them it was their fault as they had only just supplied the evidence. It was getting late in the day, so when the sent the order over... I basically just folded

[69Eyes]

From their email:

 

The 15 March 2016 hearing will still go ahead either way but we will seek to lodge the Tomlin Order (upon receipt).

 

Is there any point in me attending this?

[AndyOrch]

Just taking another look at this.....

 

UPON the claimant and the defendant agreeing the terms set out in The Schedule hereto

AND UPON reading the written terms of the parties

BY CONSENT IT IS ORDERED THAT:-

1. All further proceedings in this claim be stayed save for the purpose of carrying the terms of this Order and the attached Schedule into effect, and for that latter purpose the parties do be at liberty to apply; and

2. There be no order as to costs.

 

 

£50ish a month. It goes up a fiver a year. They added on the court costs to the balance.

 

So they have added costs ?

 

with regards to the forth coming hearing...until the court informs you the hearing has been vacated I would attend as planned.

 

Andy

[69Eyes]

There be no order as to costs

I don't understand that. I'm pretty sure they have been added. The lady on the phone said they would do. And the balance has shot up by a few hundred so it looks like they have been.

 

until the court informs you the hearing has been vacated

 

The hearing is tomorrow morning, and I doubt I'll hear anything before then, so I'd better start getting my documents and stuff together.

[AndyOrch]

Probably just the court claim fee and Tomlin Order (£50) fee added.

 

Yes I would attend.....Its the claimants responsibility to advise them of the Tomlin Order.....if you get chance maybe raise your queries with their Solicitor before entering court ?

[69Eyes]

Ok, will do. I got the wrong end of the stick, thought the Tomlin would negate the need for a hearing.

 

Now I have signed the tomlin, am I right in thinking that there is no need to prepare info regarding bad reconstructions of TCs, etc... it will not be of any benefit to me now, will it?

[AndyOrch]

Ok, will do. I got the wrong end of the stick, thought the Tomlin would negate the need for a hearing.It normally would but because its so close to hearing its possibly too late to stop it and get the order sealed.

 

Now I have signed the tomlin, am I right in thinking that there is no need to prepare info regarding bad reconstructions of TCs, etc... it will not be of any benefit to me now, will it?

Correct...but take your file anyway and a copy of the Tomlin Order.

 

Andy