Cabot claimform - old HSBC Loan Application to lift stay /summary judgment***Settled by Tomlin Order ***

[AndyOrch]

Having only just viewed the connected disclosures I would say and it galls me to say they would have enough to push this over the line for Summary Judgment.Therefore I think it would be wise to contact the claimants solicitor and suggest that you would be open to settling this by way of a Tomlin Order.

 

Time is of the essence so move fast because the Solicitor needs time to vacate if a hearing date has been set. 

 

Andy

[Tidot]

Hi @oldcoger

 

No it is not joint ownership. The home is only in my name. I don't have a CCJ. 

 

Thanks @Andyorch. I'll write to them today.

 

I've read that a Tomlin order is very strict and if for any reason I have to vary it, it can be difficult.

I'm thinking of putting my home up for sale lol. 

 

[Tidot]

Hi @Andyorch 

 

Thanks.

I'm sending the attached to the solicitor tomorrow morning together with a Witness Statement just in case.

Is that a good idea?

 

I'm still drafting the WS.

I'm finding it really difficult to find anything to argue or disagree with from their WS.

 

I think it is going to be pretty short, except to deny that I ever received their correspondence.

I was abroad when they sent it. 

 

Please let me know what you think of the letter and if you have any advice re the WS please. 

 

 

TO_offer.docx

[dx100uk]

pers I wouldn't be giving them any pers financial details voluntarily and I would certainly not be telling them why you don't want a CCJ

that gives them a good reason to refuse and or pressure you into a higher £PCCM...neither are any of their business

[Tidot]

Morning @dx100uk. Thank you.

 

According to my completed budget sheet, I really cannot afford more than £30 per month.

 

Should I simply request a Tomlin Order without any further information?

 

I've been searching around and gleaned that they do not have to agree to a Tomlin Order, and that they can try to force me to pay more than I can afford. Is that correct?

How do I prevent them drawing up a TO for more than I can afford?

Don't I need to give them a reason at all? 

 

 

Here is the new settlement offer letter at per your notes @dx100uk.

Do you think it is likely to be accepted?

Based on the evidence they have do you think they will more likely push for a strike out and summary judgement? 

 

TO_offer v2.pdf

Edited November 4, 2019 by Tidot

[AndyOrch]

I wouldn't include the paragraph of how much DCAs normally pay for assigned debts....and you dont have to CC Cabot.

[Tidot]

ok thanks @Andyorch

 

is anyone familiar with subrogation when it comes to the claimant obtaining a charge against my property if the judgement goes against me?

 

I've been reading about Paul v. Speirway Ltd. [1976] Ch. 220 where the plaintiff was not granted rights of subrogation as a secured creditor because the original loan was intended as an unsecured loan and therefore any remedy by way of subrogation should not include secured means, which would give the plaintiff more than he had bargained for.

 

Does anyone have any comments on this please? 

 

Also, I've just gone through the N244 again and noticed that the Statement of Truth has not been signed by the applicant.

 

Is this significant please? 

[AndyOrch]

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part73

 

https://hardwicke.co.uk/subrogation-to-the-unpaid-vendors-lien-what-is-the-procedure-for-obtaining-an-order-for-sale/

 

And with regards to the unsigned n244...but if the witness statement is signed with a SOT then that may negate the following PD

 

Documents to be verified by a statement of truth

1.1  Rule 22.1(1) sets out the documents which must be verified by a statement of truth. The documents include:

(1) a statement of case,

(2) a response complying with an order under rule 18.1 to provide further information,

(3) a witness statement,

(4) an acknowledgment of service in a claim begun by the Part 8 procedure,

(5) a certificate stating the reasons for bringing a possession claim or a landlord and tenant claim in the High Court in accordance with rules 55.3(2) and 56.2(2),

(6) a certificate of service.

1.2  If an applicant wishes to rely on matters set out in his application notice as evidence, the application notice must be verified by a statement of truth¹.

 

[Tidot]

thanks @Andyorch.

 

What does PD mean please? 

 

I've finally finished drafting my WS.

 

Its really late I know, but if @Andyorch @dx100uk are out there right now could you please take a look?

 

I'm trying to get to the post office by 5pm. I've got 20 minutes!

 

Thanks every so much

 

. Witness Statement.pdf

[AndyOrch]

5 hours ago, Tidot said:

thanks @Andyorch.

What does PD mean please? 

 

Practice Direction...points of the CPR (Civil Procedure Rules)

 

Statement looks good......its your words and support of your defence...there is no set rules or wording...the form and content is correct.

 

Andy

[Tidot]

I must say that I am TOTALLY confused by that! I can't figure out if their N244 should have have a signed SOT or not in this case! 

[AndyOrch]

It should be signed.

 

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/732360/N244_web_0818.pdf

[Tidot]

Thanks @Andyorch. I've been so preoccupied going over my WS and defense that I haven't remembered to log in here! 

 

Solicitor has sent me 2 emails to an email address which my husband also uses. I never gave HSBC or their solicitor my email address or permission to email me there. My husband has found out about it and he is not happy, to put it lightly. Isn't it illegal for DCA / solicitor to use an email address which I didn't give them and to make my personal matters known to others? Can I use this as part of my defense? 

 

The DCA has agreed the Tomlin order, including the costs - so debt is now just over £8k (original £7042). Which I do not agree with. They have asked that I bring the signed order to court and they will stay the proceedings. I personally think I have a chance of winning based on 

 

1. right of subrogation and unjust enrichment - the DCA bought a small portion of the debt. the original creditor wrote of the balance. The original agreement was not secured and therefore the subrogated party cannot claim a right to secure the debt. 

2. the DCA did not contact me to foster negotiation pre claim

3. they have caused me mental distress by disclosing my personal financial matter to a third party

4. Their WS is not signed

 

Any comments? 

Edited November 12, 2019 by Tidot

[AndyOrch]

You said their N244 application notice was unsigned...not their witness statement ?

[Tidot]

yes sorry, a part of the N244 was unsigned. The box after section 10 - what information will you be relying on in support of your application? They have ticked Witness Statement. 

 

After re reading, it seems as though they don't need to sign the N244 Statement of Truth as their WS is set out on an attachment and a Statement of Truth is signed there. 

 

What do you think to my argument that they have disclosed personal financial matters to my husband by using an unauthorised email address?

 

 

Edited November 12, 2019 by Tidot

[AndyOrch]

Straw clutching ?  Although they may well have breached the DPA if you have never disclosed that address...but then again how would they  have got it ?

[Tidot]

In the end I decided to settle by way of a Tomlin Order. It was agreed at the court. I guess if I do get a little money I'll offer them to settle. Thanks to you all, @Andyorch @dx100uk for all your help and support. 

[AndyOrch]

Still a result and better than a CCJ...well done for seeing this through Tidot.......title updated.

 

Regards

 

Andy