Is my Tomlin Order misleading?

[Klefty]

My original debt was £10,000 with MBNA. Reston Soicitors took over the case and a Tomlin Order was put in place about 5yrs ago, where every monthly payment was made on time. Due to me losing my work late in 2017, again I fell into financial difficulty. I explained my situation to Restons, but they had no consideration for my circumstances and advised me that they would be recommending to their client to take a Court Order to obtain/enforce the full debt.

I am now told (last week) that the case against me was successful and that they are now looking to put a charging order against my home to protect their clients interest.

I have a copy of the original Tomlin Order, and after reviewing this Tomlin Order I could see it was lacking in detail and clarity regarding the amount owed, payment terms etc. Based on this my written defense to the court highlighted this and I asked for the Court Order to be set aside cancelled, so it could re-negotiated accordingly.

- The Tomlin Order mentions the debt at the start was £10,000 in July 2013
- The monthly payment was £90
- I paid £4590
- On my calculations the balance outstanding is £5410
- Restons/MBNA claim there is still a balance of £9341.46
- The Tomlin Order makes no mention of interest to be included, but Restons/MBNA have applied interest

WHY? What Next?
I am frustrated that such a blatant disregard to a legal document can be ignored by the court, I highlighted this issue and said that the case should be thrown out as the claim amount was incorrect, but I still lost.

QUESTIONS

1) Can I appeal this decision and stop the CCJ against me, based on the facts mentioned above?
2) Can I stop the Charging Order based on the above?

I cannot understand that if a Tomlin Order is legally binding, then in the same instance the financials mentioned within the Tomlin Order should also be adhered to, and that is not the case here. My point is that the figures are not accurate or explained. This seems a huge loophole in the process where the innocent lose out to very vague laws. We are not in the Dark ages here and a legally binding document such as a Tomlin Order needs to have proper protocols, terms & conditions clearly depicted within it so all sides are protected, that is not the case here.

I am happy to upload a copy of the Tomlin Order, but I just need confirmation that this doc will not enter into the public domain, so let me know?

I would appreciate an urgent response, so I can know the next steps here as I have 28 days to appeal or so I am told.

[Klefty]

I have reviewed the Tomlin Order again and this time I can see there is no mention of the Credit Card reference, or the debt it relates to, so again based on this, how does the Tomlin Order carry any validity if there is no mention of what it relates to. My point is that the debt this Tomlin Order relates is not mentioned. The more I investigate this, the more frustrated I am getting that the court hearing has gone against me.

I would really appreciate a prompt response, so please do help.

[Amethyst]

If you can remove all your personal details from the Tomlin Order, or type out the Order and the Schedule that would be of help yes. Just leave off anything identifiable.

Did you take any advice before signing the Tomlin order ?

How much has the judgment been entered for ?

[Klefty]

I cannot confirm the exact amount as I am still waiting for this by post, if that is how I get it, i'm not sure, but I will contact the court and ask them why I have not received this yet. I have been pro-active as it is Restons who notified me of the result.

2 pages attached.

Yes I had a solicitor prepare the Tomlin Order with me, stating the obvious I am reluctant to go back to the same solicitor as it will be a conflict of interest as they did not apply due diligence on my behalf. To be fair Restons also did not provide/apply due diligence.

Overall I am shocked at just how lazy this whole process is, and I find it very difficult to believe that the court allowed this to be upheld - the admin and due diligence both sides is awful.

[Klefty]

Unless I am going crazy, surely the law cannot allow something like this is happen without clarity and due diligence. The law from where a Tomlin Order originally derived from is in my opinion old and out of date, and the time has come where someone needs to highlight this. Compliance should be standard in these situations, and real terms and conditions should apply, along with a check list of items that must be incorporated into a Tomlin Order. To ignore this process is in my opinion unfair.

[Amethyst]

That doesn't look bad to be honest. The settlement was for £10k payable at £90 a month installments until paid. However as you breached the agreement they were entitled to apply for judgment on the debt as stated in their particulars of claim ( which may have been for more than the settlement and may have asked for statutory interest @ 8% pa - along with the court fees and costs ) So was the £10k a reduced settlement or the full amount they were claiming in court ?

Was the debt originally a MBNA credit card or loan ?

[Amethyst]

Sorry, yes you should receive a copy of the judgment order from the court - you could give them a ring and ask them as sometimes they can take a couple weeks xxx

[Klefty]

The debt was from a credit card.

The debt on the Tomlin Order is for £10,000, this is what was associated with this Tomlin Order.

A few points:

1) The Tomlin makes no mention of what the debt applies to, so is this not open to scrutiny? Let me explain, theoretically the debt can be paid by me, but then that means they can say the debt applies to something else, maybe another debt not necessarily the original debt owed to MBNA. I have mentioned this several times, my point is; should the debt not have a proper reference to it? If there is no reference how can they prove this Tomlin Order is associated with that debt? I am struggling to understand how the Tomlin Order can be compliant if it does not have a reference or an accurate record of what it is associated with.

2) There is no mention of interest to be applied to this Tomlin Order, so if no interest is mentioned, why should I pay interest. If you take the Tomlin Order literally and read it, there is no mention of interest therefore the remaining debt should be £5410, and not £9341.46, which is what they are claiming.

3) I would agree that if a Tomlin Order is breached, then yes they can ask for judgement, but I cannot see how a judgement can be made on the Tomlin Order if the Tomlin Order does not mention what the debt relates to, which it does not. Again my point is that if I asked the judge to tell us "what does debt on the Tomlin Order relate to, and where is this mentioned in the Tomlin Order?" its impossible to answer this question as the Tomlin Order does not mention this with any clarity, therefore based on this, the judgment should not have been allowed.

Please let me know on where I stand on these points, I am trying to ascertain the correct line of appeal, and what should be considered first to appeal, and how to appeal. Point 2 is an argument on whether interest should be mentioned in a Tomlin Order or not, in my opinion it should otherwise no interest can be applied.

[Diana M]

I had a solicitor prepare the Tomlin Order with me, stating the obvious I am reluctant to go back to the same solicitor as it will be a conflict of interest as they did not apply due diligence on my behalf.

If you had legal advice from a solicitor before signing the Tomlin Order then you need to establish whether that advice was correct.

If the solicitor was wrong in any way than you can make a complaint to the partner of their firm and then escalate it to the Legal Ombudsman if the complaint is not resolved to your satisfaction within 8 weeks. The Ombudsman can award compensation if appropriate.

Was the solicitor instructed by you to act throughout the legal proceedings or only to advise on the Tomlin Order? I note that the Claimant is Arrow Global (Guernsey) Ltd which is unlicensed.

You can read about the Legal Ombudsman's complaints process here > http://www.legalombudsman.org.uk/helping-the-public/

This is what Joanna Connolly said on another thread about the pitfalls of Tomlin Orders where the exact wording can be crucial >

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.

Di

[Klefty]

THANKS Joanna, but that does not answer my queries.

This is the 3rd time I am asking, so maybe my wording is confusing matters. if this is the case please let me know?

I need legal advice on these points:

1) The Tomlin makes no mention of what the debt applies to, so is this not open to scrutiny? Let me explain, theoretically the debt can be paid by me, but then that means they can say the debt applies to something else, maybe another debt not necessarily the original debt owed to MBNA. I have mentioned this several times, my point is; should the debt not have a proper reference to it? If there is no reference how can they prove this Tomlin Order is associated with that debt? I am struggling to understand how the Tomlin Order can be compliant if it does not have a reference or an accurate record of what it is associated with.

2) There is no mention of interest to be applied to this Tomlin Order, so if no interest is mentioned, why should I pay interest. If you take the Tomlin Order literally and read it, there is no mention of interest therefore the remaining debt should be £5410, and not £9341.46, which is what they are claiming.

3) I would agree that if a Tomlin Order is breached, then yes they can ask for judgement, but I cannot see how a judgement can be made on the Tomlin Order if the Tomlin Order does not mention what the debt relates to, which it does not. Again my point is that if I asked the judge to tell us "what does debt on the Tomlin Order relate to, and where is this mentioned in the Tomlin Order?" its impossible to answer this question as the Tomlin Order does not mention this with any clarity, therefore based on this, the judgment should not have been allowed.

Please let me know on where I stand on these points, I am trying to ascertain the correct line of appeal, and what should be considered first to appeal, and how to appeal. Point 2 is an argument on whether interest should be mentioned in a Tomlin Order or not, in my opinion it should otherwise no interest can be applied.

CAN SOMEONE PLEASE ANSWER THESE QUERIES: I need to know if the Tomlin Order is enforceable without it mentioning the debt it relates to, I am struggling to get a straight answer.

Also

QUESTION 1: Can I appeal based on my appraisal of these matters?

QUESTION 2: If I cannot appeal, can I challenge the amount owed, and rebuke interest charges not made on the Tomlin Order.

QUESTION 3: If I appeal, I might as well ask the judge if the Tomlin Order is enforceable if it clearly does not state what the debt relates to, so do I appeal and mention all of the above?

[Klefty]

I am have read my comments several times, and it does appear I am not able to explain with clarity, so here's one more attempt to explain:

The Tomlin Order mentions £10,000, it mentions £90 per week, but IT DOES NOT MENTION what this debt arrangement relates to i.e. the original credit card reference etc. If there is no mention of what the debt relates to, so what if a payment was missed. If a payment was missed there needs to be proof of where that payment was missed, and there is none, as it is not mentioned on Tomlin Order.

I am not sure how many different ways I can keep mentioning this, does this clarify my query, please do let me know?

[des8]

Hi
Although this is not my scene, I have noted your continuing frustration and so did some digging.

Firstly it is clear that this order relates to a court case, the Court is identified top left and case number (redacted) is top right, so it is clear IMO, to what the order relates. (assuming the PoC gives all relevant details.
Secondly The Court of Chancery requirements for orders (including Tomlin orders can be found here (page102 onwards) (I suppose the same format would be required for lesser courts) https://www.gov.uk/government/upload...uide_01.18.pdf

My input might get a reaction from others more knowledgeable!

[warwick65]

If you need legal advice, I think you need to speak to a solicitor. Remember, with very few exceptions, people on here have no formal legal qualifications.

Why not contact one , such as the firm@Diana M suggests (by the way it was Diana who posted and not Jo)

I believe they give initial free advice

As Diana said, did you get legal advice before signing the Tomlin ?
Remember as well, Tomlin orders are not just created, I believe they have to be sealed by the court and will relate to the claim that was issued

I am no expert but you may find there are grounds for fighting the CCJ- that's why you need legal advice

[Amethyst]

The debt was from a credit card.

The debt on the Tomlin Order is for £10,000, this is what was associated with this Tomlin Order.

A few points:

1) The Tomlin makes no mention of what the debt applies to, so is this not open to scrutiny? Let me explain, theoretically the debt can be paid by me, but then that means they can say the debt applies to something else, maybe another debt not necessarily the original debt owed to MBNA. I have mentioned this several times, my point is; should the debt not have a proper reference to it? If there is no reference how can they prove this Tomlin Order is associated with that debt? I am struggling to understand how the Tomlin Order can be compliant if it does not have a reference or an accurate record of what it is associated with.

2) There is no mention of interest to be applied to this Tomlin Order, so if no interest is mentioned, why should I pay interest. If you take the Tomlin Order literally and read it, there is no mention of interest therefore the remaining debt should be £5410, and not £9341.46, which is what they are claiming.

3) I would agree that if a Tomlin Order is breached, then yes they can ask for judgement, but I cannot see how a judgement can be made on the Tomlin Order if the Tomlin Order does not mention what the debt relates to, which it does not. Again my point is that if I asked the judge to tell us "what does debt on the Tomlin Order relate to, and where is this mentioned in the Tomlin Order?" its impossible to answer this question as the Tomlin Order does not mention this with any clarity, therefore based on this, the judgment should not have been allowed.

Please let me know on where I stand on these points, I am trying to ascertain the correct line of appeal, and what should be considered first to appeal, and how to appeal. Point 2 is an argument on whether interest should be mentioned in a Tomlin Order or not, in my opinion it should otherwise no interest can be applied.

1: It refers to the court claim which is for a specific debt ( presumably, the MBNA debt, we haven't seen the claim )

2. See 3 - did they claim interest in the original claim?

3. The Judgment isn't on the Tomlin order - it is on the original claim. The Tomlin is an out of court agreement between the parties - the order actually at court is that the claim is stayed on the terms in the schedule. Then see para 4 in the schedule which refers to the original claim ( as opposed to the agreed settlement)


Did you have notice that they were applying to the court after your breach of the Tomlin ? and did you speak to your solicitor at that point ?

[Klefty]

Thanks for this

My answers here:

1) OK.

2) Yes interest was on the original debt.

3) Understood.

Yes I did have notice, and yes I did speak to the original solicitor, but he said that there was a 99% chance that I would lose as there was a breach on the Tomlin order.

In essence, it appears there is nothing I can do, so to summarise:

a) Tomlin Order was breached
b) Judgement is now against me, so also a CCJ
c) The next step I am told is they will go for a Charging Order
d) Payment terms of £6 per month is fine for now until my circumstances change

Overall the experience has been awful, the assistance I got from Business Debt-line was limited, and I feel that if there was a better a knowledge there, I might have been able to manage the situation.

FOR ANYONE READING THIS POST, BE WARNED TOMLIN ORDERS CAN LEAD TO DIFFICULT OUTCOMES, so do anything you can to avoid breaching them. My downfall was bad advice, and lack of knowledge by those advising me.