HFC issued court proceedings - Restons Collection Charge removed

[fuzzybrain]

Re: HFC issued court proceedings

Have just spoken to Restons =- they agree that the figures are wrong and that payments since the default notice was issued on the 17/02/09 have not been taken into account - therefore payments of £473.10 need to be creditted. restons are going to write to me and confirm the outstanding balance - so I feel a lot happier about the balance now.

They do want a charging order and i think that if a CCJ is granted they will stick an application in but they said if i agree to a voluntary charge then they will drop the court proceedings - I refused as i said my husband would refuse permission and also there wasn't enough equity in the property to cover the debt.

I mentioned the tomlin order and they said they wuld put the idea forward to their clients and want me to write in with my proposal with a copy of my I&E. How do i do this this???

[fuzzybrain]

Re: HFC issued court proceedings

Have drafted this in respect of an offer re Tomlin Order - any thoughts??

Further to my telephone conversation with you on the 14th May 2009 I am writing with a formal offer in respect of a Tomlin Offer in respect of the court claim XXXXXXX between your client HFC bank and myself (XXXXXX)

As agreed during our telephone conversation, the balance that the court claim is for is incorrect due to credit being made to the account (numbered XXXXXX) since the default notice was issued on the 17th February 2009 which have not been deducted from the total.

I believe that these are the correct figures:

Court claim amount: £21,296.34
Court fees £410
Total Amount Owed 21706.34


Payments since 17th Feb 09

Cleared payments £381.17
Payment clearing at present £149.70
Total amount repaid £530.87

Total Amount owed : 21706.34
Less payments made: £530.87
Final amount outstanding to be repaid: £21,175.457



I would like to put forward the following proposal in respect of a Tomlin Order:

I would propose that the debt is cleared within 9 years and 9 months and put forward the following proposal:

Year 12 x Monthly payments of Amount Paid Balance owing
1 160 1920 19163.45
2 170 2040 17123.45
3 180 2160 14963.45
4 190 2280 12683.45
5 200 2400 10283.45
6 210 2520 7763.45
7 220 2640 5123.45
8 230 2760 2363.45

During year 9 I propose that 8 payments of £240 would be made (totalling £2160) and one final payment of £203.45

I sincerely hope that this is an agreeable solution to resolving this matter and an agreement for a Tomlin Order would therefore be granted

[Amethyst]

Re: HFC issued court proceedings

You need to talk to Dan on Tomlin orders. They are a lot more complicated than you have written.

A Tomlin agreement for £XX per month without any security being offered in form of voluntary charge order and without adding in any costs or their dodgy collection charge is unlikely to be accepted. If you default on the tomlin it will just swing back to where you are up to at the moment.

Why are you so adverse to getting a CCJ ?

[fuzzybrain]

Re: HFC issued court proceedings

I have included the court fees and accepted all the charges they have levied onto the account (apart from the collection charge)

If they get a CCJ then the likiehood is that a Charging Order will instantly follow and that scares me to death to be honest. No CCJ = No CO. Also if the housing market clears up we may be able to remortgage in time and clear all our debts, but with a CO against us there will no hope of that happening

If they refuse can i still apply to the courts for the £150 a month payment order, or will they insist that I use the same schedule as the i proposed for the TO?

[Guest]

Re: HFC issued court proceedings

Amethyst is quite correct, the Claimant is very unlikely to agree to a deferred payment schedule, in particular over almost ten years without some form of security. I suspect that they will, at the very least, request a Judgment by Admission and in this case, you will be in the same position.

You appear to be suggesting that the Claimant agrees, as detailed in the schedule to a Tomlin Order, that it stay any current action and accepts payment by instalments and only engages in further litigation in the event that payment is not forthcoming on the agreed date or at all. What is wrong with a simple judgment for sums to be paid by a given date each month?

HFC can apply for a Charging Order at any time after they have obtained a judgment. However, a court will not make an order unless you have failed to pay the amount of the judgment when it was due, or failed to pay one or more of the instalments due under the terms of the judgment.

Logic dictates therefore, should you maintain the payments, you have nothing to fear from a judgment because unless you fail to pay, you cannot have a Charging Order granted against you.

In the case of Green v Rozen [1955] counsel agreed a settlement at the court door and noted on their briefs the instalment order agreed and the consequences of default, adding the wording: "By consent all proceedings stayed on terms indorsed on briefs. Liberty to either side to apply." No court order of any kind was obtained. Predictably enough, an application to enforce the agreement was unsuccessful on the ground that there was no court order to enforce.

A Tomlin order is neither necessary nor appropriate in your case because the settlement simply involves the payment of money, notwithstanding the fact that it offers the Claimant no security at all should you default. Your argument is that they should accept a Tomlin Order and stay their claim at this point based on your offer of regular, increasing payments for almost ten years in place of the security of a judgment.

I would be very surprised if HFC accepted this and even if they did, the court did not reject it.

[fuzzybrain]

Re: HFC issued court proceedings

I had totally got the worong idea about the Tomilin Order - I guess i was just clutching at strws tryign to avoid the CCJ because of the threat of the Charging Order.

The follwoing info was really useful.

HFC can apply for a Charging Order at any time after they have obtained a judgment. However, a court will not make an order unless you have failed to pay the amount of the judgment when it was due, or failed to pay one or more of the instalments due under the terms of the judgment.

Logic dictates therefore, should you maintain the payments, you have nothing to fear from a judgment because unless you fail to pay, you cannot have a Charging Order granted against you.

I was really concerned about the charging order because during the telephone conversation with Restons yesterday they stated they wanted the debt secured with a charging order and if i didn't agree to a volunatary they intend to ask the judge for this when the CCJ is granted - i thought that they would automatically be granted the CO.

What do I do next - i haven't sent in the defence yet because of the query about the amoutn owing (which restons have now agreed is incorrect as is sending a letter confirming the new balance)

Do i wait for this letter adn then a part addmission defence for the the debt and dispute the collection charge?

[Amethyst]

Re: HFC issued court proceedings

Yep

[fuzzybrain]

Re: HFC issued court proceedings

Ok - I might just have grapsed this now (it took long enough didn't it!! )

Will report back for further help/advice/slap round the face with a wet fish!!) when Reston's finally write to me with an updated balance

Thank you to every one for all your help - I know i've been round in circles with this and not grasping things very easily, so I apologise for all the frustation/confusion I have caused, and I am very very grateful for all the help you have given me - thank you

[Amethyst]

Re: HFC issued court proceedings

bahhh Its okay honey .... you want to find the best way to sort this issue out with the least risk... we all do it and at least you havent just taken my word as gospel and not questionned it (I feel terribly responsible for folk when they do that lol)... when this letter comes back from Restons scan it up and we'll amend defence to suit....if nothing comes in next week then we'll get amended defence in as is in case they play trickerys and try strike you out.

[fuzzybrain]

Re: HFC issued court proceedings

Thank you ever so much indeed. As soon as i get the letter I will definately scan it and post it up.

[wigeon]

Re: HFC issued court proceedings

Has any one considered the enforceability of this agreement ??

[Amethyst]

Re: HFC issued court proceedings

Yes - this is the agreement in question.

Not overly keen on the 'severe consequences' on the Missing Payments section mind lol.

But prescribed terms wise and seperated total charge for credit etc seems to be in order. No insurances involved.

[wigeon]

Re: HFC issued court proceedings

Sorry you have missed the point or rather I did not explain myself in an understanable way. The agreement post dates 6th April 2007 and therefore this one cannot availe itself of the remedies under s 127(3) However the agreement showes this agreement paid off a previous loan which could be challenged under the older legislation........!
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no automatic notification of a response ???

[Amethyst]

Re: HFC issued court proceedings

Yes it did repay an earlier loan - Tools mentioned this earlier - I am unclear of the rules surrounding that as the original debt has been repaid and thus the agreement is finished?

Sorry was forgetting this was an 08 loan.

Notifications I believe only come if you log off the site - I usually click New Posts between viewing threads to check on responses.

[fuzzybrain]

Re: HFC issued court proceedings

Have got a letter from restons. it says:

Balance:24875.26

Further to our conversation today we confirm credits totalling £381.17 have now been applied to your account respsenting paymebts made between the issue of the default notice and 28th April 2009

We have also written to payplan to advise the of our involvement


I have just made a payment to them of (via Payplan) but that didn't go till yesterday so they wouldn't be aware of the payment £149.70.

The abalance isn't a true balance as there is the colletion charge stuck in there. Can I do anythign about the chages they might have added - althoguh i don't how how many charges or the amoutns yet as the little wotsits refuse to send me any details till i have proved my ID and address to them!!!

What do i do next?