Tomlin Order Signed in 2004

[Worthington]

In 2004 I was persuaded to sign a Tomlin Order with Nat West for a Loan that I had defaulted on and I had received a County Court Claim. I decided to ensure I avoided a CCJ and stoped the claim to agree to sign a Tomlin order.

I am now continuing to pay a not insignificant monthly amount to Nat West. I am actually ahead in payment value to what I should be as I voluntarily increased my monthly payment by 30% to help pay the debt off earlier.

I missed one or two payments, but in terms of value I was still over £1,500 ahead of what I should have paid.

Nat West contacted me and advised that unless I kept up "Regular" monthly payments, they would ask the court to enforce the order and they would seek a judgement. I argued that I was ahead of payment value and they did not see this as me being compliant.

I complained to them and asked for a copy of the original signed agreement for the loan. I should mention at this point that the loan was over the CCA threshold and so not regulated by CCA.

They advised that due to the time passed since 2004, they could not provide the signed agreement.

Is there any point me pushing this as having signed the Tomlin order, does this overide any flaws that may appear in an agreement if it was ever provided and would I then be unable to challenge them?

I appreciate that this is an unusual issue and any advice would be appreciated.

[Worthington]

Re: Tomlin Order Signed in 2004

Bump

[nemesis45]

Re: Tomlin Order Signed in 2004

Good morning,
I'm sorry your post has not been answered.

With a Consent Order the terms have to be adhered to unless you can negotiate an agreed variation.
If £xxx has to paid on a fixed date the claimant can apply for judgment if any instalment is missed, paying more does not vary this.
It seems that the bank has just given you a " warning " on this point.

nem

[Worthington]

Re: Tomlin Order Signed in 2004

Thanks-What is your view on them not having a copy of the contract or my signature?

Good morning,
I'm sorry your post has not been answered.

With a Consent Order the terms have to be adhered to unless you can negotiate an agreed variation.
If £xxx has to paid on a fixed date the claimant can apply for judgment if any instalment is missed, paying more does not vary this.
It seems that the bank has just given you a " warning " on this point.

nem

[charitynjw]

Re: Tomlin Order Signed in 2004

1. (1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;
   (2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;
   (3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;
   (4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;
   (5) If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A;

Carey v HSBC (2009)
http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html

[Worthington]

Re: Tomlin Order Signed in 2004

Carey v HSBC (2009)
http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html

Charity
thanks but this agreement is not regulated by CCA

[nemesis45]

Re: Tomlin Order Signed in 2004

Charity
thanks but this agreement is not regulated by CCA

What type of loan was this and what was the amount?

nem

[Diana M]

Re: Tomlin Order Signed in 2004

You have a sealed court Order (assuming one of you filed it at the time). That is the end of the matter except for enforcement purposes.

Sadly you cannot put the clock back and argue legal issues that should have been argued before the Order was made (unless there was any misrepresentation by the bank at the time you signed it).

It doesn't matter what type of loan it was or how much it was for. It no longer matters whether the agreement now exists or whether it existed when you signed the Order in 2004 (13 years ago). Don't torture yourself with what might have been.

To put it bluntly you've missed the boat.

You say you were "persuaded" to sign the Tomlin Order. Who persuaded you? Did you take legal advice from anyone at the time?

At what stage had the legal proceedings reached when you signed the Order? Had you filed a Defence? Had Disclosure taken place (assuming this was Fast Track or Multi Track from what you've said about the amount)?

As for enforcement of the Order if you breach the terms then the Claimant may be able to take you back to court but their success would depend on the terms of the Tomlin Order as set out in the Schedule. What were they?

Sometimes a Tomlin Order is an agreement to accept a lessor sum than claimed, but if you breach the Order the Claimant can return to court and seek payment of the full sum originally claimed.

I'm not sure of the basis of any complaint you may have with the bank. If you've not kept to the Tomlin Order Schedule (even if you play catch-up afterwards) then what would be your complaint if all they've done is remind, perhaps threaten, you with what they may be legally entitled to do?

When is the Tomlin Order due to be completed so you can have some peace of mind without this Sword of Damocles hanging over you?

Di

[charitynjw]

Re: Tomlin Order Signed in 2004

Charity
thanks but this agreement is not regulated by CCA

I should mention at this point that the loan was over the CCA threshold and so not regulated by CCA.

Specsavers, here I come........

[Worthington]

Re: Tomlin Order Signed in 2004

Thank you all for comments and thank you Diana,
Thanks for the very helpful advice.
They had issued a claim in CC. I rang claimant and they agreed to withdraw claim if I signed a Tomlin order to agree xxx number of payments at £200 until final payment of YYY. I am 3 years off end. It would have been longer but about 8 Years ago I increased payments to £300 and have maintained since.
I missed one payment recently and they threatened me with return to court to excercise Tomlin order. I made up the missed payment.

There was no reduction in the debt to be repaid, except that the debt would be made interest free. The amount in the Tomlin order stated the ballance due.

Are you saying if they enforced the order they would then be entitked to charge interest on the debt that they agreed not to charge?

What if the Contract I signed with them was flawed as I suspect it was otherwise why would they offer my a Tomlin get out when they had me over a barrel when issuing the CC Claim in 2004? By signing the Tomlin have I signed away my right to dispute the legality and enforcability of the contract that they state they can no longer produce?

[Worthington]

Re: Tomlin Order Signed in 2004

Diane,
I was persuaded to sign a Tomlin order because I rang claimant the day I received a claim from Northampton Court in the claimants name. No contract or agreement was attached to the claim. Now this I believe did not put me on an equal playing field?
I did not want a CCJ and so rather than defend this I agreed to sign a TO before time expired for me to submit a defence-I took no legal advice-I know I should have.
The main issue I have with these people is that they never send me a statement of what my balance is unless requested and when they do, they get it wrong by about £15,000. If something was to happen to me, how would my estate know that I didnt owe what this creditor is suggesting.

I have raised the issue of statements three times with them and they have admited that they are getting the calculations wrong because "their system cannot be set to not apply interest calculations"

I am happy to conform to meeting payments but I do feel the least they can do is provide me annualy with a statement that is correct to the actual ballance I owe?

Any help on what action I could take to get them to behave in a more customer friendly weay would be appreciated???

[Amethyst]

Re: Tomlin Order Signed in 2004

Do you have a copy of the Tomlin order - does it state the original balance, the amount of payments and the agreement not to add interest to the agreed amount?
How are you making payments and are you keeping full records and evidence of those payments ? ( bank transfer ? standing order ? so it appears on your statements ( which you should print out and keep) etc)

Iis definitely worth posting up a copy of the order and the schedule of terms to it, just to ensure all is in order and check the actual terms you have agreed to.

[Diana M]

Re: Tomlin Order Signed in 2004

Are you still dealing direct with NatWest or has the debt been assigned to someone else since the Tomlin Order was agreed/signed in 2004 (i.e. thirteen years ago)?

Or are you being chased by solicitors?

I would send a Subject Access Request to the business who owns the debt so you get the full history of your payments and any charges they have or haven't added.

Then you'll see what's really going on.

Di

[Worthington]

Re: Tomlin Order Signed in 2006

Thank you Amethyst and Diane,

I am posting the full detail here- All personal and account details removed for anonymity.

The debt has not been asigned legally but held by Ascen legal as administrators.

1 & 2 Original Tomlin Order signed and accepted by court in 2006

3.A response from OC to me in January 2017. This shows the incorrect ballance

4.A Further response to me from OC in May 2017. This shows the correct ballance

5. The latest statement sent to me from Ascent legal in September 2017-It is over a year out of date and shows the incorrect and inflated balance

My key concerns are:

A. Nat West do not believe that they are legaly obliged to provide me with annual statements? Additionaly they cannot provide the original signed contract?
B. I only ever get statements when I request them

C.The statements as in 5 above, are delivered months after a request and show the incorrect ballance

D. They cannot even agree with themselves over what is the correct current balance-letter 3 of Jan 17-c£17.5k v Letter 4 of May 17-c£15.5k

I have now adhered to their request to ensure that I pay monthly and on time, but my main concern is that if I were to die before paying off this loan. My estate would be confused by what would be NatWests claim for an incorrect ballance due.
This troubles me?

Of course I could still go to the Ombudsman but to be honest I would probably be beter compalining to my bedroom wall :-)

Any advice would be greatly appreciated.

[Worthington]

Re: Tomlin Order Signed in 2004

Further point-Interestingly-The Tomlin order gives authority for the creditor to claim the "Full amount of thr debt then outstanding"

This does not indicate if it would be the amount outstanding as contained within the Tomlin order or The Debt prior to the Tomlin order, plus interest, minus my payments within the Tomlin order.

Their letter of May 17, suggests that they would be able to claim interest less my payments since the Tomlin order?



How would a court interpret this?