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

[Diana M]

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

I'm sorry to hear you were ill at the time you needed to deal with this claim.

From what you say you may benefit from filing an Amended Defence.

At what stage did PRA disclose all those documents? I'm guessing after you filed your original Defence.

I'm also interested to see "No Order for Costs" in the body of that Tomlin Order.

So they don't want you to pay their costs and they're happy to wait hundreds of years to get their money. What does that tell you?

Di

[rifkaleah]

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

Thanks but I have already received a copy of the original credit agreement, twice. It is completed in my handwriting, complete with my signature and, whilst a bit blurry is mainly legible. The first part of the terms and conditions are printed down the side in 'fine print' with the rest provided by way of a separate printout.

Will requesting it again using the template as a s 77-79 CCA Request do anything more? Will it make them give me anything different or afford me any additional protections?

[Diana M]

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

Will it make them give me anything different or afford me any additional protections?

Yes.

Di

[Diana M]

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

copy of the original credit agreement, twice. It is completed in my handwriting, complete with my signature and, whilst a bit blurry is mainly legible. The first part of the terms and conditions are printed down the side in 'fine print' with the rest provided by way of a separate printout.

My response to that statement has to be >

it is important for consumers to realise that contrary to what the creditors assert when they are suing it is not sufficient to just say an agreement is enforceable and that just producing a “reconstituted” copy does not prove that it is enforceable.

Neither does just saying an agreement has been assigned and producing a notice saying it has been assigned prove legal assignment.

Di

[rifkaleah]

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

Dear Di,

Thanks for the additional info.

No PRA haven not instructed solicitors. Letters are coming from their in house Legal Manager/ Solicitor.

As for the signed agreement. It's a complete and signed application from with terms and conditions attached. They have called it a Credit Card Agreement on their paperwork. So I assume I should send them the formal request for a copy of the agreement then!

Thanks again.

[Diana M]

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

As for the signed agreement. It's a complete and signed application from with terms and conditions attached. They have called it a Credit Card Agreement on their paperwork. So I assume I should send them the formal request for a copy of the agreement then!

That sounds like a plan

They may have 'called' it a Credit Card Agreement but only a DJ can decide if that is the case.

You need to run forensics over documents produced by a Claimant who'll be relying on you not knowing what you're looking for.

A signature on an application form doesn't necessarily make it an enforceable Credit Card Agreement.

in this instance, and this is why this case is so important, the two signed credit agreements they produced in evidence weren't "reconstituted" documents.

PRA Group (UK) Limited presented them to us and the court as scanned copies of the two original signed MBNA agreements with the prescribed terms & conditions on the back of both. The court found as fact this was not the case for each agreement and that both were therefore irredeemably unenforceable under s.127 (3) of the Consumer Credit Act 1974.

Di

[Joanna C]

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.

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.

[rifkaleah]

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

Just an update on this thread.

I ended up using the services of Joanna Connolly Solicitors and, whilst they 'came to the party' quite late in the process, they did manage to pick everything up and take control.

The end result is that PRA have withdrawn from all legal proceedings and the matter is now dead in the water.

Thanks to Joanna and her team for all their help and advice.

[warwick65]

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

Hi
Well done Jo and Co. I see from your very first post you said the debt had been proven, clearly not. Just goes to show how difficult law is and how useful a solicitor can be.

[Guest]

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

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.

I understand that Bank have changed weekend payments, how does that affect the comments?

[Guest]

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

I understand that Bank have changed weekend payments, how does that affect the comments?

Just a thought, Does it?

[warwick65]

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

I understand that Bank have changed weekend payments, how does that affect the comments?

Can you explain?

[warwick65]

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

I think Jo's point is still valid. I have a S/O from one bank to another every Monday. When there is a BH it dies not arrive until the next working day.

[Diana M]

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

I ended up using the services of Joanna Connolly Solicitors and, whilst they 'came to the party' quite late in the process, they did manage to pick everything up and take control.

The end result is that PRA have withdrawn from all legal proceedings and the matter is now dead in the water.

Thanks to Joanna and her team for all their help and advice.

We may have come late to the party but we're happy to say the result means that neither you nor your successors will have to spend the next 1,045 years (not a typo!) paying PRA under the terms of a Tomlin Order which you were on the brink of signing after they'd convinced you that they had proven their case without the need to test it in court.

It's a good thing you questioned their assumption!

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.

@Kati can the thread title be changed to **DISCONTINUED** and moved to the CONCLUDED CASES sub-forum please.

Di

[Joanna C]

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

Just an update on this thread.

I ended up using the services of Joanna Connolly Solicitors and, whilst they 'came to the party' quite late in the process, they did manage to pick everything up and take control.

The end result is that PRA have withdrawn from all legal proceedings and the matter is now dead in the water.

Thanks to Joanna and her team for all their help and advice.

Although it is more difficult when we are instructed late on in proceedings we were pleased to deal with it for you and bring it to an end,