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Chevyman

When does court action affect statute barring?

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Hello forum, it's my first post.

I hope you can help as I have read around the topic but haven't found an answer yet.

 

7 years ago I was taken to court for a regulated consumer credit debt.

 

The creditor agreed to Full and Final settlement for a reduced amount which was paid by the date specified and receipt confirmed.

 

The F&F agreement was sealed by the court and the hearing date vacated.

My credit files were marked as partially satisfied and eventually the entries disappeared.

 

I think I understand that where a court case ends in a ccj any remaining balance owing can be pursued via court and the 6 year statute barred rule doesn't apply.

 

In my case the creditor agreed that the reduced payment was a F&F but I have now had a letter from their solicitor chasing the unpaid balance. Does statute barring protect me in this scenario?

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Yes if they agreed it was in F&FS...then in reality there is no balance......but that will depend on the wording of a Tomlin Order/Consent what was agreed....you did agree a Tomlin Order and did not get a CCJ ?

 

 

Andy


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I didn't ever see a CCJ on my credit files. All I received from the court after agreeing the F&F were two documents.

 

A Consent Order for the creditor and me to date and sign, staying all further proceedings except for carrying the terms into effect. This first doc also contained a schedule of the terms. These were reproduced in the second document headed General Form of Judgement or Order which was stamped with a dated court seal a few days later.

 

It says

 

By Consent It is ordered that

 

1. All further proceedings in this claim be stayed except for the purpose of carrying such terms into effect. Liberty as to apply as to carrying such terms into effect.

 

2. The hearing listed for x xxxxxx xxxx is vacated.

 

Schedule

 

1. The defendant do pay to the claimant £xxxxx in full and final settlement of the claimant's claim (and by consequence the defendant's xxxxxxx xxxx credit card account no. xxxxxxxxxxxxxxx) inclusive of interest and costs. The said sum to be payable on or before x xxxxxxxx xxxx.

 

2. Upon payment of the said sum the Defendant be discharged from further liability in respect of all claims made by the Claimant in these proceedings, the balance of the account shall be set to £0, the credit record entry shall be marked as 'settled' or 'satisfied' and the account shall not be sold or passed to any third party.

 

 

Payment was made to the creditor's bank in time and I kept the receipt. The creditor sent me a letter acknowledging the full and final settlement of the account. It confirmed any credit ref agency files would be updated to show the account as satisfied with a balance of nil.

Edited by Chevyman

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Then respond to the Solicitor and tell him to check the Consent Order......

 

2. Upon payment of the said sum the Defendant be discharged from further liability in respect of all claims made by the Claimant in these proceedings, the balance of the account shall be set to £0, the credit record entry shall be marked as 'settled' or 'satisfied' and the account shall not be sold or passed to any third party.

 

Statute barred is irrelevant in your case.


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So which dca did you pay to all go on holiday to spain in one go?


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Definitely the same debt?

 

Yes it was the same one but I didn't realise it straight away because the demand came many years after I had financial problems and my family helped me settle with various creditors.

 

After a few years my copies of papers were mostly misplaced, some thrown out and some stored away but hard to locate.

 

The demand didn't have much detail,

just the solicitors own ref no,

original creditor/DCA names and an 'outstanding balance' and offering 30% discount for quick payment.

I took advice and sent a prove-it letter asking for details.

 

After 2 months of worry and some sleepless nights they sent me a copy of the court order and said they would refer back to the DCA.

 

It was then that I was able to figure out the amount they were chasing was what would have been the written-off amount from that F&F deal.

 

After a further 6 weeks they confirmed the creditor had instructed them several years earlier but a month after the F&F payment.

Also that the creditor says they should have closed the file and should not have instructed the solicitor.

 

As a result of that the solicitor has apologised and closed their file.

I sent a detailed formal complaint to the solicitor who acknowledged it and said they would provide a full response in max 8 weeks.

Nothing arrived

 

I sent the first of two follow up letters asking when I will get their answers.

It is now more than 5 months since that 8 week deadline.

Today I received this from them;

 

"Acknowledgement of your complaint

 

We endeavour to provide excellent customer service at all times and we are sorry in this instance you feel this has not been the case.

In view of your comments this has been passed to the Customer Assurance Team for response.

 

We are currently investigating the points you have raised and will return to you in due course.

Your file will remain on hold until this time.

 

Please find a copy of our complaints procedure for your information."

 

They don't refer to my recent letters

but it is an acknowledgement of my complaint,

which they already acknowledged several months ago.

 

Their mention of customer service is ironic as I have never been their customer, only their prey.

It seems inappropriate that they have passed the matter to their Customer Assurance Team to deal with.

 

I would welcome advice from the forum for what my next step should be.

 

Thank you

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So which dca did you pay to all go on holiday to spain in one go?

No holidays at that time I'm afraid, it was very tough for a few years. Is revealing the DCA important for the forum?

Edited by Chevyman

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urm..I meant the fleecers you paid..

a DCA is NOT A BAILIFF

you got had!

 

who were they?

 

dx


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I'd rather not reveal the name of the DCA but the credit card company sold the debt to them and provided me with a photocopy of the original signed agreement and all the required CCA documentation.

 

I was under enormous stress at the time and it was a relief that a relative was willing to do the F&F deal on my behalf. I didn't think of it as being fleeced or 'had' as it was a tremendous weight off my shoulders.

Edited by Chevyman

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bet they didn't have an enforceable agreement..who said ...CAG?

we deal with all the fleecers here on a daily basic

type their name in the top red Toolbar Saerch CAG box.

then read a bit

and come back and tell us their name.

 

 

your relative or you should have gone on holiday with the money or burnt it

 

a tol more useful than paying the DCA to go on holiday with it.


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probably talked to them on the phone too and got all the threats

which they would never put in writing as they know its BS


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Whoahh, hold on people, the settlement was almost 7 years ago. I don't think there is any useful purpose in revisiting that aspect now.

 

My initial aim was to get clarity about circumstances in which court action might prevent an alleged debt becoming statute barred. I think that at first I misunderstood the situation but that seems to have been clarified by Andyorch's posts so thank you.

 

The question arose because a solicitor started chasing an 'outstanding balance' of £000's which I couldn't remember related to any debts from several years earlier. The solicitor sent me a copy of the consent order for the F&F settlement and I found my papers for the case.

 

They eventually confirmed that a month after the F&F payment was made the creditor instructed them to chase the 'outstanding ''balance' whereas they should have closed the file and should not have pursued me several years later.

 

They apologised and I made a formal complaint to the solicitor but they haven't responded (see post #7 for more details). Please could I have advice what steps to take next.

 

As the topic has now changed its focus should I continue it by starting a new topic about solicitors and complaints?

Edited by Chevyman

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Post 5 answered you question

Send our sb letter from the debt collection section of our library

Then they must cease and desist under fca conc rules


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Post 5 answered you question Correct

 

Send our sb letter from the debt collection section of our library

Then they must cease and desist under fca conc rules No incorrect..

 

The debt cant be statute barred because its subject to a pending court claim thats currently stayed by a tomlin order.

 

Statute barring does not enter into it as the debt has been agreed in F&FS..there is no balance.


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Andyorch thanks for clearing that up. Please can we move on to the other topic, my complaint to the solicitor about their actions.

 

Should that continue in this thread or should I post it as a new one?

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No keep it here......

 

I assume this is the same solicitor that dealt with the Tomlin Order...was it a Tomlin or Consent Order?

 

And is acting for the same DCA that issued the claim ?


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The court case solicitor was the DCA/creditor's in-house bunch.

The new one is an independent firm acting for the same DCA/creditor.

 

If I understand it correctly a Tomlin Order is a Consent Order where the Schedule is in a separate confidential document. In contrast mine is headed 'Consent Order' and all of the details and the Schedule are within the same page, therefore it isn't a Tomlin Order.

 

Have I understood the difference properly?

 

When does it matter whether an order is Tomlin or Consent?

Edited by Chevyman

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Please name teh DCA and solicitor. Theres no need to hide it. It will help others who read your thread who may be in a similar situation.


Any advice i give is my own and is based solely on personal experience. If in any doubt about a situation , please contact a certified legal representative or debt counsellor..

 

 

If my advice helps you, click the star icon at the bottom of my post and feel free to say thanks

:D

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I prefer not to name them yet. However that shouldn't stop anyone reading the thread being helped as they can still understand and learn from the scenarios.

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The difference is a Tomlin stays the claim subject to the schedule being complied with...a Consent Order is a straightforward agreement covering the arrangements to be implemented to bring the dispute to an end will take the form of a normal consent order. For instance, in the case of a debt action the agreement/consent order will set out the amount to be paid, the date by which the money must be paid, and that the payment will be in full and final settlement of the claim.

 

You have Consent Order and in effect litigation has ended...so this alleged balance is no longer subject to pending/stayed litigation...but the Consent Order is still legally binding.

 

Did you have Legal representation ?


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I didn't have Legal represensation but used the wonderful breadth of information available from CAG, other websites and a debt advice charity. A relative offered to finance a F&F settlement and they negotiated the terms with the creditor's in-house solicitor.

 

It took about a month to agree terms.

Edited by Chevyman

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You should of had a Tomlin Order....not a Consent Order

 

CPR 40.6 Consent judgments and orders

 

 

(1) This rule applies where all the parties agree the terms in which a judgment should be given or an order should be made.

 

(2) A court officer may enter and seal(GL) an agreed judgment or order if –

 

(a) the judgment or order is listed in paragraph (3);

 

(b) none of the parties is a litigant in person;

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part40#40.6

 

Still as stated its legally binding and therefore as already stated you should refer the Solicitor to the Consent Order in particular the point I have hi lighted and inform them same.

That any attempt to litigate further on any alleged balance will be challenged using the Consent Order and what their Client has legally agreed and accepted.

 

 

Andy


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Are you saying it is legally binding despite failing to comply with the CPR? Is that because the court would most likely view it as a de-minimus error which could easily be rectified using:

 

Correction of errors in judgments and orders

40.12

(1) The court may at any time correct an accidental slip or omission in a judgment or order.

(2) A party may apply for a correction without notice.

Edited by Chevyman

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