**DISCONTINUED!** What Happens to a Tomlin Order upon death of defendant

[rifkaleah]

I am the defendant in a claim with PRA Group about an old MBNA credit card. The debt has been proven and I have been asked to sign a Tomlin order for £1 per month for 12548 months (that's 1045 years). Obviously I'm not going to survive long enough to pay off this debt. So I have a few questions:

1) What happens to the Tomlin order when I die? Can the claimant automatically claim against my estate.
2) By having a Tomlin order is the claimant giving themselves an advantage over any other creditor (of which there are many)?

Thanks in advance for any advice available

[Amethyst]

Re: What Happens to a Tomlin Order upon death of defendant

That seems slightly bonkers. Is there anything else in there ? security by voluntary charge on your house or anything ?

Do you have the consent order, any chance you could post a copy of it and the schedule proposed pleased to check over the terms (remove personal details)

[rifkaleah]

Re: What Happens to a Tomlin Order upon death of defendant

Here is a copy of the draft Tomlin order as requested.

I am just wondering why they would offer this unless it would provide them with some kind of advantage. Otherwise they would be better off agreeing the £1/mth payment for now and waiting for us to have more money available in the future and getting the payments increased. By putting the Tomlin Order in place the payments are effectively fixed regardless of whether our circumstances change. Unless I'm being really naive & missing something here.

[Diana M]

Re: What Happens to a Tomlin Order upon death of defendant

I am the defendant in a claim with PRA Group about an old MBNA credit card. The debt has been proven and I have been asked to sign a Tomlin order for £1 per month for 12548 months (that's 1045 years).

What do you mean by "the debt has been proven"?

Has a court ruled that the debt is enforceable or has the Claimant convinced you that they have everything they need to win in court so you've decided to settle?

And read Paragraph 4 of that Draft Tomlin Order!

Do you own your own home?

Di

[rifkaleah]

Re: What Happens to a Tomlin Order upon death of defendant

Dear Diana M,

What I mean by the debt has been proven is that I have requested and they have supplied all of the following:

A copy of the original signed application complete with terms & conditions
Copy of the default notice
Copy of transaction log showing that £1 payments were made up until Feb 2016 so that debt is not statute barred
Copies of all notices of assigment

So no I haven't just been "convinced that they have everything they need to win in court". Unless you know something I don't then they have proven their debt.

And yes I have read paragraph 4 of the schedule. This simply entitles them to register the CCJ should the payment schedule be breached, which most likely would happen when I die.

Even if I do own my own home that doesn't mean I will be in the same position later in life. The Tomlin order would not prevent me from selling up, enjoying the proceeds and leaving nothing in my estate for them to claim on.

Hence my questions as to why would they do this unless it puts them in a stronger position that other creditors and how does this affect any claim they may have on my estate, should there be any monies left at that stage.

[Diana M]

Re: What Happens to a Tomlin Order upon death of defendant

So no I haven't just been "convinced that they have everything they need to win in court". Unless you know something I don't then they have proven their debt.

I might do

Supplying you with copies of documents and having documents that are compliant with the Consumer Credit Act are not the same thing especially if they are reconstituted documents.

Read this >

PRA GROUP (UK) LIMITED v DIANA MAYHEW – WIN

‘“RECONSTITUTED AGREEMENT” – IRREDEEMABLY UNENFORCEABLE”
“UNREDACTED DEEDS OF ASSIGNMENT – NO ASSIGMENT PROVED”

So, held Recorder Bellamy in PRA Group (UK) Limited v Mayhew at Central London County Court on 22nd March 2017, at the end of a 3 day multi track trial, when dismissing PRA’s claim against our client.

Stale debts sued for on the back of 2 ‘reconstituted’ MBNA credit card agreements (May 1999 and October 2000) were held irredeemably unenforceable under CCA 1974. The evidence of an honest witness was preferred to that of so called “reconstituted agreements”.


After 3 days of close forensic examination of, and legal argument about, evidence and documents from both PRA and MBNA stating that our client’s specific debt had been assigned, the court held that no assignment had been proved.


Efforts, over many months, in earlier cases to force PRA into disclosure of un-redacted deeds and deep and sustained forensic challenge to the provenance of documents needed to prove regulatory compliance, finally drew back the veil. The reality behind bulk debt purchasing was revealed.


This decision shows that just saying an agreement is enforceable and producing a “reconstituted” copy does not prove that it is enforceable. Just saying an agreement has been assigned and producing a notice saying it has been assigned does not prove legal assignment.


Debt purchasers need to provide proof. If that means the pitifully few pence in the pound they pay for stale debts will increase because banks will now have to start keeping original evidence complying with regulatory consumer protection measures, it is hard to imagine many tears being shed, outside the City of London.

Link to thread > http://legalbeagles.info/forums/show...304#post723304


Di

[Diana M]

Re: What Happens to a Tomlin Order upon death of defendant

I am the defendant in a claim with PRA Group about an old MBNA credit card.

How "old" is this MBNA credit card (i.e. when did you open the account)?

Was it assigned direct from MBNA to PRA or was it assigned to any of the following names: Varde, Expreto Credite, Aktiv Kapital before? If you were in a DMP it's not always obvious since the correspondence tends to be sent direct to them.

You've referred to Notices (plural) of Assignment in post # 5 which makes me ask my last question.

Which leads me to my next question which is I'm not seeing the Deeds of Assignment on that list of documents produced, have you asked them to produce them?

And finally (for now) what stage have these legal proceedings reached? Has there been Full Disclosure?

Di

[Amethyst]

Re: What Happens to a Tomlin Order upon death of defendant

Even if I do own my own home that doesn't mean I will be in the same position later in life. The Tomlin order would not prevent me from selling up, enjoying the proceeds and leaving nothing in my estate for them to claim on.

Hence my questions as to why would they do this unless it puts them in a stronger position that other creditors and how does this affect any claim they may have on my estate, should there be any monies left at that stage.

Thanks for posting the Tomlin. It still does seem strange, and I haven't seen one for that length of time before... however I'd guess they are using it to help their accounts ( as your £12k can still go down as debtors payments due ) AND over the rest of your life there is some possiblity you may miss a single £1 payment and that is enough for them to steam in and try obtaining judgment, with potential for enforcement action ( such as charging order) later. However it is also odd they haven't suggested a charging order now, if they know you own your own home. It's also odd they haven't allowed for six/12 monthly reviews.
Additionally, if there position is so strong ( and all the documents are valid and correct) why the heck are they accepting £1 a month and not going for judgment now?

I think it might be an idea to post a copy of the documents you have received from them ( suitably redacted of your personal information).

Can you enlighten us as to your discussions which led to this Tomlin order being drafted ?

[Diana M]

Re: What Happens to a Tomlin Order upon death of defendant

I have requested and they have supplied all of the following:

A copy of the original signed application complete with terms & conditions
Copy of the default notice
Copy of transaction log showing that £1 payments were made up until Feb 2016 so that debt is not statute barred
Copies of all notices of assigment

How did you make your request for documents - was it a formal s 77-79 CCA Request together with the £1 statutory fee?

Did you request anything else formally by way of CPR 31.14?

Did you ask any Part 18 questions?

There are some things missing off that list which PRA would need to prove their claim but only if you asked for them be produced.

Have you received Annual Statements (s. 86)?

Was there PPI on the account?

Have you filed your Defence and if so what did you plead (roughly)?

You must consider all your options, and in the case of signing a court Order you need to take independent advice. A court has to approve a Tomlin Order and where one party is a Litigant in Person (i.e. does not have legal representation) then the court may list a hearing to be certain that the party drafting the Order hasn't put any undue influence on the LIP or knowingly 'pulled the wool over their eyes'.

I'm not suggesting that has happened to you, but bear in mind the adage "if something looks too good to be true then it probably is".

May I ask again what stage have these legal proceedings reached?

Di

[rifkaleah]

Re: What Happens to a Tomlin Order upon death of defendant

Along with the Tomlin Order, I received a packet containing the list of documents for disclosure for the CCJ case.

Here is my description of what I received.

1) A copy of the original signed MBNA Application form dated June 2003
2) What I assume are reconstituted terms & conditions
3) MBNA Default Notice dated November 2009
4) Reconstituted transactions statement (basically a spreadsheet) showing all transactions from June 2003 to Nov 2009
5) A series of Customer Information System notes that are basically unintelligible
6) Letter from Aktiv Kapital (UK) Limited dated 4/2012 saying that they had recently bought the account from Varde Investments (Ireland)Limited
7) Printout showing list of payments received during period 3/2012 to 7/2013 with Bank Transaction Method of Experto Credite
8) Printout showing list of payments received during period 8/2013 to 2/2016 with Bank Transaction Method of BCW Group Plc (presumably meaning Buchanan Clark & Wells who have and are continuing to manage the account)
9) Letter from PRA Group dated 1/2015 saying that the account had been assigned to them from Aktiv Kapital as they had changed their name to PRA Group on 6/77/2014

I appreciate the information in the link you supplied and I have read before that reconstituted agreements have been shown to not be legally enforceable. However they have provided me a copy of the original signed agreement, so I assume I can't use that argument here.

I did ask for copies of all statements to prove the amount due, which they haven't supplied, opting instead for a spreadsheet/ printout listing. I would assume that any reasonable judge would deem this adequate as it does detail every transaction with the kind of descriptions you would see on a formal statement.

I have attached a copy of the list of documents for disclosure for your reference. You will see that 8, 9 & 10 have 'No' under the 'In Claimant's Control' column. I presume this means that they are not available as they have not been supplied in the pack that arrived today. According to the Notice of Allocation to the Fast Track received from the court, PRA have until 29th August to supply copy documents so I assume they still have time to produce them.

Do you think it's worth continuing to pursue a defence of the CCJ (should these documents not materialise) as there is therefore a break in the chain of assignment? I have until 19th September to lodge my signed statement with the court in case this goes to a hearing.

Thanks for your help

[rifkaleah]

Re: What Happens to a Tomlin Order upon death of defendant

Hi Amethyst,

I've not had much discussion with PRA to be honest. They started the ball rolling by threatening a CCJ at the start of the year, but unfortunately I was really ill and not in a position to deal with it at the time. By the time I was well enough, things had progressed to them putting in a claim with the court so I had to do something. So I filed a defence asking for more information to prove the debt wasn't statute barred etc and have been pushing for more information over time.

The £1 per month offer came from me but only subject to PRA proving their debt, which they obviously believe they have now done. As you can see from my reply to Diana M they have now disclosed a substantial amount of paperwork in support of their claim. There are just a couple of bits missing that might leave me some wriggle room to argue that they haven't proven a rightful claim. I have a lot of creditors who are taking £1 per month and holding back on taking any further action. These payments have been going on for years now and whilst it does keep the debts 'live' it does stop the risk of further action at this point. Not sure if this is the right thing to be doing but it's worked up until now and prevented a whole load of CCJs I would imagine. I am gradually getting round to asking for paperwork in support of the various debts, especially as I have lost track of some of them as they have been passed around from one company to another. I am looking for any breaks in the chain of assignment that might just give me room to get out of paying but this takes a considerable amount of time, as you can imagine.

However, I too am confused as to why PRA, having got this far, haven't gone for something stronger or at least allowed for annual reviews of our financial circumstances. That said I am tempted to sign the Tomlin on the basis that if we don't they will go for a CCJ and that has implications on other aspects of my life. However I was concerned whether the Tomlin gives PRA any additional powers when I die, above and beyond any other creditor. Apart from giving them the right to register a CCJ as some future time I can't see a downside on my part as it takes away the hassle of reviewing payments should my circumstances improve.

I'm a bit reluctant to post all the other documents on here, but I have attached samples of some of them so you have an idea of what has been received. The default notice and assignment letters are pretty standard anyway.

One other thing I have noticed is that there is a lack of continuity with the balance owed between the documents received. There is no global statement showing how they get from one balance owed to another when they have transferred the accounts from one company to another. Not sure if this helps me or not. Any advice?

Thanks for all your help.

[rifkaleah]

Re: What Happens to a Tomlin Order upon death of defendant

Dear Diana M.

How did you make your request for documents - was it a formal s 77-79 CCA Request together with the £1 statutory fee?

No I simply emailed them asking for the following before I could consider entering in to any discussions about acknowledging the debt or coming to any arrangement to pay it off:

1) Proof of debt e.g. a copy of a signed credit agreement including original credit card number and any associated paperwork confirming your entitlement to claim payment of the debt.
2) Evidence that the debt is not statute barred. e.g. copies of statements showing when the last transactions were processed, but not simply interest & charges.
3) Evidence that an appropriate assessment of affordability was carried out at the time credit was made available or limits increased and that this was periodically reviewed during the time the account remained open.
4) Evidence that an assessment of creditworthiness was undertaken at the time of making the offer of credit and that this was periodically reviewed during the time the account remained open.

Did you request anything else formally by way of CPR 31.14?

No as I have no idea what this is

Did you ask any Part 18 questions?

Don’t think so as I don’t know what this is
There are some things missing off that list which PRA would need to prove their claim but only if you asked for them be produced.

As you can see from my first answer I have asked for things that have either not been received or received in a form other than how I requested.

Have you received Annual Statements (s. 86)?

To be honest I have no idea. PRA have provided a statement of account dated 13/1/15 in their disclosed documents, but no others, which is a bit odd now you mention it.

I have about 20 creditors, so you can imagine the volume of correspondence I get, especially with the constant changing of who owns the debt or who is managing the account etc. That’s why I have lost track of some of them and am having to ask for proof as I can’t trace the original lender. Many of the letters don’t quote that information.

Was there PPI on the account?

No, I always made sure of that.

Have you filed your Defence and if so what did you plead (roughly)?

Yes the defence was filed back in March, within the required time. I looked up some info on line and found that some people have been successful with claiming that I believed the lending was not made in accordance with good lending practice in that insufficient credit assessments were undertaken at the time lending was made available. I also requested all the proofs as previously mentioned. Not sure if this was a good defence but I was recovery from a lengthy illness at the time and was not in a position to do much more about it and had (still have) no funds to pay for legal advice to sort it out.

When sending them a copy of the Directions Questionnaire, I did send them a household budget by way of explanation as to why I don’t have the money to pay off the debt and suggested that they halt any further action as a means of minimising their costs which they are unlikely to recover. I was hoping that this would demonstrate that I am at least keen to try and come to some kind of arrangement without the need to take up valuable court time.

On 19/7/17, in response to receiving some paperwork, I also sent PRA this email:
------------------------------------------------------------------------------------------------------------------------
IMPORTANT NOTE: This communication in no way acts as an acknowledgement of the debt.

Thank you for your letter dated 18th July and the associated paperwork. I do however require some further information from you before entering in to any discussion with you and/ or acknowledging the debt.

1. The transaction history that you have provided only goes up to 19th November 2009. Please can you provide the transaction history from November 2009 to date.

2. I am also concerned that the card number quoted in the relevant column on the transaction history is not always that quoted on your court claim form as being the one opened in 2003 . Please can you provide the necessary proof that all the entries on the transaction history do in fact relate to the relevant card number as quoted by you as part of you claim. This proof should be by way of copies of original credit card statements or such other proof, from the original lender, confirming that card numbers were changed during the lifetime of the account.

3. I notice that balance transfers were permitted during the lifetime of the account and I therefore require evidence that an appropriate assessment of affordability was carried out at the time credit was initially made available or limits increased and that this was periodically reviewed during the time the account remained open.

4. As per point 3 above, I also require evidence that an assessment of creditworthiness was undertaken at the time of making the offer of credit and that this was periodically reviewed during the time the account remained open.
--------------------------------------------------------------------------------------------------------------------------

Thanks again for all your help

[Diana M]

Re: What Happens to a Tomlin Order upon death of defendant

Along with the Tomlin Order, I received a packet containing the list of documents for disclosure for the CCJ case.

1) A copy of the original signed MBNA Application form dated June 2003
2) What I assume are reconstituted terms & conditions
3) MBNA Default Notice dated November 2009
4) Reconstituted transactions statement (basically a spreadsheet) showing all transactions from June 2003 to Nov 2009
5) A series of Customer Information System notes that are basically unintelligible
6) Letter from Aktiv Kapital (UK) Limited dated 4/2012 saying that they had recently bought the account from Varde Investments (Ireland)Limited
7) Printout showing list of payments received during period 3/2012 to 7/2013 with Bank Transaction Method of Experto Credite
8) Printout showing list of payments received during period 8/2013 to 2/2016 with Bank Transaction Method of BCW Group Plc (presumably meaning Buchanan Clark & Wells who have and are continuing to manage the account)
9) Letter from PRA Group dated 1/2015 saying that the account had been assigned to them from Aktiv Kapital as they had changed their name to PRA Group on 6/77/2014

I appreciate the information in the link you supplied and I have read before that reconstituted agreements have been shown to not be legally enforceable. However they have provided me a copy of the original signed agreement, so I assume I can't use that argument here.

I did ask for copies of all statements to prove the amount due, which they haven't supplied, opting instead for a spreadsheet/ printout listing. I would assume that any reasonable judge would deem this adequate as it does detail every transaction with the kind of descriptions you would see on a formal statement.

I have attached a copy of the list of documents for disclosure for your reference. You will see that 8, 9 & 10 have 'No' under the 'In Claimant's Control' column. I presume this means that they are not available as they have not been supplied in the pack that arrived today. According to the Notice of Allocation to the Fast Track received from the court, PRA have until 29th August to supply copy documents so I assume they still have time to produce them.

Do you think it's worth continuing to pursue a defence of the CCJ (should these documents not materialise) as there is therefore a break in the chain of assignment? I have until 19th September to lodge my signed statement with the court in case this goes to a hearing.

I've highlighted the bits in your post which jump out at me without detailed comment since there's anecdotal evidence that PRA read the forum.

As I suspected this MBNA debt was assigned (lawfully or otherwise) to Varde. You've read the thread on my case so you'll know why that matters.

A Claimant may get something right but they have to get everything right in order to enforce a debt in court.

So if they have disclosed a copy of the original signed agreement (or was it a signed application form?) that is only helpful to their case if it contains all the prescribed terms and the reconstituted Ts & Cs are 'honest and accurate' plus they need to prove that they have complied with all their other statutory obligations.

You've been sent a Tomlin Order together with their disclosure which is a tactic used by a lot of Claimants/solicitors to put pressure on the Defendant to settle without the need to have their evidence tested in court.

Have PRA instructed solicitors and if so are they Howell Jones or Judge & Priestley?

Di

[Diana M]

Re: What Happens to a Tomlin Order upon death of defendant

Dear Diana M.

How did you make your request for documents - was it a formal s 77-79 CCA Request together with the £1 statutory fee?

No I simply emailed them asking for . . . .

In which case send a s 77-79 CCA Request to PRA a.s.a.p to protect your legal position.

LB has a template letter which you can use here > http://legalbeagles.info/library/gui...etter-example/

You must include a £1 postal order for the statutory fee but it may turn out to be money well spent!

Di

[warwick65]

Re: What Happens to a Tomlin Order upon death of defendant

Hi
I have to agree with [MENTION=6]Amethyst[/MENTION] when she says, if they think their position is so strong , why are they allowing £1 a month Tomlin order, seems absolutely bonkers to me.
[MENTION=87380]Diana M[/MENTION] has made some really good points about the strength of their arguments and paperwork. Can I just say that as a fast track case you could probably get a CFA ( no win no fee) and it would certainly be worth getting some expert advice first.- even if that expert advice was to sign the Tomlin order

I must admit I have no debts with PRA but I do have some with others who, at first sight, have provided good agreements that seem to prove my liability, but when I have dug a little deeper fail on several issues. As non of them have gone to court I am hardly likely to tell the creditors what these issues are- thats for me to know and them to find out.

If I can ask one question- why , oh why would you agree to signing a Tomlin order when they can not legally prove they have the right. You would be an extremely clever person if you can plan selling your house and spending it all so it runs out just as you die- can I have tonights lotto numbers please?