Claimant Breaches Tomlin Order

[silversurfer2010]

Hi All,

Earlier this year I settled with (Hoist) and signed a Tomlin Order. For a barclaycard debt that was passed on to MKDP and then to Robinson Way.

The schedule of which agreed that I would pay back an agreed sum.

That I would pay monthly for a term starting 2 months after the agreement was made.

That the claimant would remove any negative remarks from my credit file and not apply any new ones whilst the terms of the agreement were maintained.

Then on speaking to the solicitors (Howard Cohen & Co) to start payment, they confirmed that they where waiting for the original creditors as none of the defaults had been removed from my file. I was calling them every week or two at this point. I kindly requested to have this confirmed by email but despite me providing my email details on several occassions they never emailed me.

3 months later I received a 'payment arrangement' letter from Robinson Way it was as agreed. I checked my credit file to find the Hoist default removed however the barclaycard default remained.

Today I have found that Hoist have registered a new default and added a linked address that I have never lived at and the barclaycard default still remains.

Hoist have now breached the Tomlin order by applying a default to my credit file, how could I go about starting a claim against them to get the debt and defaults removed as they have breached the court order?

Thanks in advance

[Amethyst]

Re: Claimant Breaches Tomlin Order

I think first thing to do is to check the actual terms of the Tomlin Order and Schedule to check exactly what the terms were and what has been breached, and the consequences of such.

Did you make the first payment before the 2 months initial period or had you waited for the payment arrangement letter from Rob Way?

Is it actually a new default on your file or Hoist updating the original Barclaycard default ?

[silversurfer2010]

Re: Claimant Breaches Tomlin Order

I have attached the schedule below.

I did not make the payment within 2 months as during this time I was chasing the solicitors to update me, now I feel them not confirming in writing was a trap!

The original barclaycard default is for £0 and has not changed. The hoist default was not showing last month but it is now showing again but for a different amount now the agreed settlement sum of £5495.15

[Diana M]

Re: Claimant Breaches Tomlin Order

Earlier this year I settled with (Hoist) and signed a Tomlin Order.

. . . . The schedule of which agreed that I would pay back an agreed sum.

Then on speaking to the solicitors (Howard Cohen & Co) to start payment, they confirmed that they where waiting for the original creditors as none of the defaults had been removed from my file. I was calling them every week or two at this point. I kindly requested to have this confirmed by email but despite me providing my email details on several occassions they never emailed me.

3 months later I received a 'payment arrangement' letter from Robinson Way it was as agreed.

Can you clarify some things.

You say you signed a Tomlin Order earlier this year but was it filed at court? If so who paid the £100 filing fee?

What was the date on the Tomlin Order (next to both your and the solicitors signature)?

Since you believe you had signed a Tomlin Order (which was lodged with the court) why were you sent a "payment arrangement letter" three months later?

Had you made the first payment due after two months as per the terms of the Tomlin Order at that stage (i.e. you hadn't missed a payment)? Your answer to that will depend on the date of the Tomlin Order and whether the Schedule gave a precise payment date (i.e. 23rd of each month) or an "on or before" last day of the month deadline. etc.

I would first check with the court to see the Order was filed - you should have been sent a copy at the time (by the court).


- - - Updated - - -

I have attached the schedule below.

I did not make the payment within 2 months as during this time I was chasing the solicitors to update me

Our posts have crossed

If you didn't make a payment on 17th May 2017 then you have breached the Tomlin Order.

However, you need to check with the court to see if it was filed as per my previous post.

Di

[silversurfer2010]

Re: Claimant Breaches Tomlin Order

I had the hearing in court on the 15th March. I thought I had a chance but I filed my defence wrong.
The judge said we should settle as it would be in my interest.
The tomlin order was made up and signed at the time in court and filed with the judge immediately. I then received a copy from the court by post.

I believe I was sent a payment arrangement letter 3 months later as they had then updated my credit file. After checking, the default from Hoist was removed.

[Diana M]

Re: Claimant Breaches Tomlin Order

I had the hearing in court on the 15th March. I thought I had a chance but I filed my defence wrong.
The judge said we should settle as it would be in my interest.
The tomlin order was made up and signed at the time in court and filed with the judge immediately. I then received a copy from the court by post.

I believe I was sent a payment arrangement letter 3 months later as they had then updated my credit file. After checking, the default from Hoist was removed.

From what you say you have possibly breached the terms of the Tomlin Order by not making the payments due under it.

Paragraph 2 of the Schedule allows the Claimant to seek judgment (a CCJ) if you breach those terms.

This is the issue you need to deal with promptly.

A Tomlin Order is a court Order which cannot be varied unless ordered by the court or agreed by consent between both parties. Since this Tomlin Order was drawn up and signed by both parties and the DJ at the court Hearing it will be hard to argue that the terms were unfair although you were without legal representation at the time.

Here is what Joanna Connolly said on a thread recently about the pitfalls of Tomlin Orders >

Anyone receiving a Tomlin Order like this should be careful. It is a Tomlin Order drafted so as to fail. The old adage if it looks too good to be true it is too good to be true springs to mind...........

Problem 1

Para 2.3 states that the payments must be made by cleared funds For a long term Tomlin Order the OP would usually (and would be well advised to) set up a standing order to ensure that the payments are not missed.

Paragraph 2.4 states that "Where the last day falls upon a weekend payment is to be received as cleared funds by no later than the last working day preceding month end." If your standing order payment date falls on a Saturday, Sunday or bank holiday the bank delays payment until the next working day.

In this case the payment falls due on 31 December 2017 which is a Sunday. The bank will pay it to PRA Group (UK) Limited on Tuesday 2 January 2018. Under the terms of the Tomlin Order the payment must be made by Friday 29 December 2017. The OP is in breach by not making payment as required and the claimant is entitled under Paragraph 4 to enter Judgment for the full amount and proceed to enforcement.

Problem 2

Another potential problem is if the claimant changes the bank account to which payments should be made and you don't receive the letter sent notifying you. Payment would be returned and the OP would be in breach of the Tomlin Order and the claimant is entitled under Paragraph 4 of the Tomlin Order to enter Judgment for the full amount and proceed to enforcement.

Problem 3

A payment term of some 1,000 years at £1.00 a month or even say 2-3 years. The £1.00 is such a small amount it would be easy to not notice if for some reason it wasn't paid by your bank or if on if the OP were to change their bank account to set it up again..

Problem 4

Should an OP die then the Tomlin Order carry's on and the Estate would need to carry on paying the £1.00 a month or the full amount will become due and payable.

Suggestions

The solution to avoid the traps is to pay say at least 12 months payments in advance (£12.00) or even longer .

For anyone already signed up to this type of Tomlin Order with this wording don't worry. Put yourself ahead on payments or if you have already missed the payment day then If PRA should seek to obtain Judgment for the full amount because you paid on a Monday instead of a Friday as payments are ongoing the Unfair Relationship provisions under s.140 of the Consumer Credit Act 1974 are still applicable.

We recently had several cases where clients who had been paying by standing order PRA Group (UK) Limited through its agent Experto Credite had proceedings issued against them because they had "breached the agreement" when Experto Credite went into liquidation.

Experto Credite's bank account was closed due to the liquidation so payments could not be accepted. No letters had been received by the clients providing alternative payment details.

Di

[Amethyst]

Re: Claimant Breaches Tomlin Order

Indeed, by not making that first payment before the 15th May you have breached the order and they can argue that against fulfilling their side of the agreement and not remove the order, however as Di says the main issue is they could now apply back to the court for judgment - Is the RobWay payment arrangement on the same terms ( 91.57 a month ?) really you need to go back to Hoist and confirm with them that the RobWay payments are fulfilling the terms of the Tomlin order and that judgment will not be being applied for. If you possibly can get a couple of payments ahead, but do not rely on that to save things if you fail on a later payment, but it should give you an argument if they did apply.

When does the original default get removed from the file ? Hoist can't add a new default so it should still come off 6 years from the original default marker.

The original barclaycard default is for £0 and has not changed. The hoist default was not showing last month but it is now showing again but for a different amount now the agreed settlement sum of £5495.15

There's nothing in the agreement saying they can add a new default. Are you on Noddle ? can you see the date it's due to drop off the file?

As there are also confidentiality terms on the order I'll take the attachment down.

[Diana M]

Re: Claimant Breaches Tomlin Order

I did not make the payment within 2 months as during this time I was chasing the solicitors to update me, now I feel them not confirming in writing was a trap!

I can't say whether you were deliberately trapped by the Claimant but you admit you didn't make the payments as per the Schedule so that's the area you need to focus on now.

Paragraph 3 of the Tomlin Order does say the "Claimant agrees to remove any negative markers it has applied to the Defendant's credit file and shall not apply any new ones provided the Defendant maintains the term of this agreement."

I read that to say the Claimant can add negative marks to your credit file since you have breached the terms of the agreement by not making the monthly payments as agreed.

Di

[Diana M]

Re: Claimant Breaches Tomlin Order

That the claimant would remove any negative remarks from my credit file and not apply any new ones whilst the terms of the agreement were maintained.

. . . . checked my credit file to find the Hoist default removed however the barclaycard default remained.

Today I have found that Hoist have registered a new default and added a linked address that I have never lived at and the barclaycard default still remains.

Hoist have now breached the Tomlin order by applying a default to my credit file, how could I go about starting a claim against them to get the debt and defaults removed as they have breached the court order?

Only one default can be on your credit file. If Barclaycard are still reporting the Default then you may wish to contact them (Barclaycard) and ask them to remove it. That's a quarrel between you and Barclaycard not Hoist.

Before you accuse the Claimant of breaching the Tomlin Order you may wish to think through your tactics.

It's possible they may not have noticed you didn't pay on time (Robinson Way manage thousands upon thousands of debt payments). If you are in a position to pay the arrears then perhaps doing that would be wise.

How do you make the payments? Is it by direct debit from Robinson Way or do you make them by standing order or pre-set online payment from your bank to their bank etc?

If you can catch up with what you owe discretely then you won't draw attention to your breach of the Tomlin Order. If you write to Hoist (who know nothing about this really) or Robinson Way (who are managing your account on behalf of Hoist) you'll be inviting them to look closely at your file.

If you accuse the Claimant of breaching the Order then you can expect them to retaliate with the same accusation (your breach) which may cause them to seek judgement against you.

Pick your battles wisely

Di

[Guest]

Re: Claimant Breaches Tomlin Order

Interesting how events happen, just not how you wish they would,.
We tend to look at events just from our POV, that's human nature. But others have a diferent POV
Do we always see that. I suspect NO

[Diana M]

Re: Claimant Breaches Tomlin Order

Interesting how events happen, just not how you wish they would,.
We tend to look at events just from our POV, that's human nature. But others have a diferent POV

Maybe that's because knowing law and knowing how to apply law to a specific set of circumstances are two different things.

What I have learnt is tactics (i.e. how you use law to your advantage) is a big part of legal proceedings.

I would also like to know more about why the DJ 'advised' the OP to settle. That's not his job really. But it may have been in the OP's best interests if the alternative was for the DJ to dismiss the Defence.

This area needs exploring in case there was something 'not quite right'.

Di

[silversurfer2010]

Re: Claimant Breaches Tomlin Order

Thanks for all your help!

I have contacted barclaycard to get the default removed which is a step in the right direction.

After having a few conversations with Hoist, they have confirmed they will remove the default and I have made a payment.

@Di just focused on clearing my credit file step by step. Knowledge and Application two very different areas.

[Diana M]

Re: Claimant Breaches Tomlin Order

I have contacted barclaycard to get the default removed which is a step in the right direction.

I'm glad you've taken my advice on this. They can be slow and sometimes stubborn but persevere.

Di

[Diana M]

Re: Claimant Breaches Tomlin Order

I have contacted barclaycard to get the default removed which is a step in the right direction.

After having a few conversations with Hoist, they have confirmed they will remove the default and I have made a payment.

@Di just focused on clearing my credit file step by step.

At the risk of stating the obvious Barclaycard isn't bound by your Tomlin Order. That's between you and Hoist.

Hoist has no power to make Barclaycard remove their default.

As explained there can only be one default marker registered on your CRA file.

So now that Hoist will remove their default marker you need to be prepared for Barclaycard to argue (rightly or wrongly) that their default can remain.

The ICO guidelines state that a creditor should register a default with the CRAs within 3 - 6 months of it occurring. That would be when the remedy date of the DN expired and the amount requested wasn't paid so your account was defaulted. So when was your DN remedy date?

Barclaycard has a reputation for registering defaults up to one year (sometimes as late as two) after the account defaulted if the consumer continued to make reduced payments under a ATP or DMP. They shouldn't do that.

If this has happened to you then in the very least you can ask them to backdate their default date on your CRA file (they usually do when approached or you refer the issue to the FOS and/or threaten them with the ICO) which means it will fall off sooner.

Di

[silversurfer2010]

Re: Claimant Breaches Tomlin Order

Thanks Di,

Currently 2 DN registered. Both the exact same date from 2014. One from Barclays for £0, One from Hoist for the agreed settlement amount.

However if BarclayCard sold the debt to Hoist they cant both report a default only Hoist as they now own it correct?

So based on that Barclays should no longer be reporting a DN on my credit file, as they sold it on to Hoist.

Also as you mentioned the tomlin order is between me and hoist and has nothing to do with Barclays so why would they register a default again.