Being taken to court...please help I'm scared Re: MBNA.

[wish me well]

Hi there,

 

Ok I have been reading through this thread and I have seen that contract law has been quoted, now could Molly use "Subsequent Impossibilities" if needed in court to be release from any alleged debt?

 

I have only just been refreshing on this but all contracts whether consumer or not are covered by English Law so?

 

Anyone have any thoughts for Molly?

 

KWS, WMW

[wish me well]

Ooh also, would it not be wise for Molly to advise she accept their rescission of contract as her right due to their breach of contract otherwise could a judge read what has been put as Molly not wanting the contract to end and class it as still "live" this in turn allowing the creditor to issue a compliant DN and start all over again?

[mollybe]

You're scaring me now WMW. Di I need to write to them and accept termination of contract. I do have the termination letter.

 

Not sure what you mean by your other post, I assume its for someone a bit more knowledgable than me?

[wish me well]

You're scaring me now WMW. Di I need to write to them and accept termination of contract. I do have the termination letter.

 

Not sure what you mean by your other post, I assume its for someone a bit more knowledgable than me?

 

 

I am so sorry, I never meant to scare you I swear:eek:

 

I am suggesting possiblilities not definates but I would if it was me tell them that due to their breach of contract your remedy is you accept termination of contract.

 

The other is if you cannot perform on a contract there are laws that maybe able to be used, I need to research a little more and hopefully someone will know about this route and will offer advise.

 

I will be back and will poss pm you you can then pm someone who you trust like Andy or someone to see what they think, is that ok?

 

KWS, WMW

Edited May 28, 2010 by wish me well
not rescission, termination

[mollybe]

Thats great thank you. Does the fact that they sent me a termination letter, albeit after an invalid DN not mean that it IS terminated or do I still have to agree?

 

Andy is brillaint, but I don't think he accepts PM,s.

 

Did you get a chance to look at my other thread regading the RBS Credit Card (not the loans). is isn't very long and they have told me there is a letter in the post.

[wish me well]

They have breached the contract and terminated, you have 3 options available to you,

 

1. accept termination of contract and are discharged from any future performance under it

 

2. Sue for damages

 

3. accepting the breach

 

I will go and take a look at the other thread bear with me

 

KWS, WMW:)

[wish me well]

Hi Molly, I think I have replied to the right thread and I have pm'd you

 

KWS, WMW

[cosalt]

subbing

[AA99]

Subbing:)

 

Regarding your car finance charges, this is from another thread:

 

BBC News - Taxi driver wins back late payment fees

[mollybe]

Thanks again WMW..is it not too late now to tell them I have accepted their termination as I have already sent the above letter saying I have received a termination notice.

 

Hi cosalt...weird thing happened..I was just reading your thread, it took me a while, and saw someone link you back to my thread. Spooky, anyway welcome, we may be able to help each other.

 

AA99..thanks for your input which I assume is in reply to my peugeot thread. I have read the link you sent me, thank you and have saved it should I need it. All is quiet on that front at the moment, I am waiting for a reply to my letter or yet another Court Claim whichever way they decide to go.

 

I don't know if anyone has ever been taken to court claiming just penalty Charges before. Should be interesting!

 

I rang the court yesterday to find out what was happening with the case as the stay expired on the 21st. It was the Final stay according to the judge. They told me they hadn't heard anything from the claimant but they had a weeks backlog of post!!

 

I then asked what happens if they miss the stay date and the clerk told me that the judge would just write to them asking why?

 

Marvellous isn't it? They miss the stay date and get away with it, but if we miss any deadline they just sneak in the back door and get judgement.

 

WMW I read you PM and it is very interesting. I am not sure if it does apply to us yet but am going to read everything I can about it.

 

I just remembered, the DN and TN are my originals, surely they should have sent me copies in response to my SAR

[mollybe]

Well, I am gobsmacked!!

 

I have just arrived home and have received a letter from the solcitors. Basically they have accepted my proposal for settlement which is £20 per month and the balance owing drops to £1000. Original claim was for £2800ish.

 

They nowe want me to sign a Tomlin Order but I need to make sure this ties up any loose ends before I agree to anything.

 

The letter states

 

Thank you for your letter blah blah blah, the one I posted further up on this page.

 

We have taken our clients instructions. We have enclosed a draught Tomlin order in duplicate setting confirming settlement terms

 

If acceptable we invite you to sign the draft Tomlin Order on both pages and return one copy to us. We will then endorse the same and file it at court to conclude procedural matters. The spare copy is for your own file.

 

It then goes on to give details of how to make payment.

 

The T.O. says.

 

1 The claimant will accept £1006.58 (the agreed sum) in settlement of their claim against the defendant iclusive of interests and costs

 

2 The defendant will repay the Agreed sum by making consecutive monthly instalments of £20.00 with effect from June 2010 to be made by the 15th day of each month.

 

3 In the event of the Defendant failing to pay the monthly instalments as stated in Paragraph 2 above the Claimant will be entitled to apply to the court for judgement to be entered against the defendant for the outstanding balance of the agreed sum.

 

4 Each party bears its own costs

 

I honestly didn't expect them to accept my offer, methinks they have realised the error of their ways???

 

I do however have a few questions if anyone can help me please.

 

What is the difference between a Tomlin Order and a CO. We have put our house on the market with a view to settleing all our debts but if I can just sort out one more we may not have to!!! This is huge for us because we didn't want to sell in the 1st place.

 

Does the TO mean they are ahead of other creditors when the house is sold as with a CO? Also, are they really willing to accept £20 per month indefinately un til the balance is repaid?

 

Paragraph 1 states 'inclusive of interest and costs'. I my letter I stipulated that no further interest be added to the balance as the £20 would then go nowhere as to reducing the balance. Have they agreed to this?

 

If I missed a monthly payment is it an automatic CO?

 

And Paragraph 4...this really concerns me...Each party bears its own costs. Does this just mean I can't put in a claim for costs or am I going to have to pay something.

 

Basically does this TO look okay?

 

Any help would be fantastic.

[cosalt]

Hi mollybe,

 

I think the difference between a tomlin and charging order is that with a tomlin as long as you pay the agreed amount each and every month they can't take the matter further, if you don't stick to it they can get a judgement without any further proceedings.

 

With a charging order it just means if you sell your property they have a right to take the amount out of the proceeds of sale.

 

I have never dealt ( yet ) with a tomlin order but as long as you are confident you can make the payment each and every month I dont see a problem, presumably you would not have offered it if you didnt think it was possible ?

 

Hopefully someone with more knowledge may be able to give a more informed opinion.

 

cosalt

[cosalt]

With regards to the costs, I would have thought this is a good point, whilst it means you have to cover your own it means they won't claim theirs which are likely to be much higher as you are a LIP.

[cosalt]

Sorry another thing I missed, they have said they have accepted the sum of £1006.58 in settlement which is to be paid by £20 installments each and every month. This effectively means as long as you stick to it 50 x £20 payments and one of £6.58 and nothing more.

[mollybe]

Hi cosalt,

 

I thin k everybody is out clubbing tonight except me and you:)

 

I am sure the Tomlin order is okay I just want to make sure and I am also not sure about the costs.

 

My dear mum has said she will cover the £20 a month, bless her so I know it won't be a problem. I will set up a standing order.

 

What I don't understand is that in Paragraph 1 it says £1006 including interest and costs and yet in Paragraph 4 it says each will cover there own costs, I am confused. If I have to pay anything towards costs I am snookered. That said i don't see why i should have any, I didn't start this whole thing after all.

[cosalt]

I think they have said including interest and costs just to make it clear that is the total amount they are asking for and accepting.

 

At the end of the day they are accepting the offer you made, it doesnt really matter what the sum is made up of, as long as it is full and final which they have made it clear it is.

 

Perhaps it would be worthwhile to send a letter asking them to confirm that the amount they have agreed is full and final and providing you pay the agreed sum it will never change.

[mollybe]

That seems like a good idea. I just don't want to leave any loopholes for them.

[cosalt]

 

I thin k everybody is out clubbing tonight except me and you:)

 

 

Ive often noticed how much quieter the forum is at weekends, you would think people would have more time to be on line but maybe they are just better at shutting off from their problems than me

[mollybe]

Well, I'm shutting of myself now for the weekend. I am of to bed and tomorrow my sister and I are of for a spa day with massages etc, boy do I need them. It is a birthday present for me. i can't wait.

 

No doubt I will be back tomorrow night, I just can't keep away, all relaxed, rested and ready to fight another day. I have another 2 on the go.

 

I'll catch up with you tomorrow cosalt, get a good nights sleep!

[cosalt]

And you, enjoy yourself and happy birthday !

[diddydicky]

make sure that you set up a STANDING ORDER not a DD - also make the payments 2 weeks before they are due -in order to avoid any delays in making payments-due to bank holidays or other banking hiccups especially near to the end- go over the time for payment for a few days and the B **tards will have you back in court in a heartbeat

[mollybe]

Oh don't worry they will never have to complain about late payments. I just want to make sure that they can't sell the balance on so it came back to bite me on the bum.

 

And I am still unsure as to whether or not I have tp pay any costs.

 

I need to make sure I have covered all the bases before I sign.

[cosalt]

Hi molly, no the costs look to be included in the settlement, so as long as you are happy with that figure then there is nothing more to pay as long as you keep up the £20 monthly payments. You will of course have incurred your own costs in getting this far but it just means you cant claim them back from them.

[cosalt]

make sure that you set up a STANDING ORDER not a DD - also make the payments 2 weeks before they are due -in order to avoid any delays in making payments-due to bank holidays or other banking hiccups especially near to the end- go over the time for payment for a few days and the B **tards will have you back in court in a heartbeat

 

 

Yes good point diddydicky, with a DD they can take whatever they want whenever they want, a standing order is just a way of paying a regular amount each month and you are in full control.

[colin21958]

Yes good point diddydicky, with a DD they can take whatever they want whenever they want, a standing order is just a way of paying a regular amount each month and you are in full control.

 

Actually with a DD if they take any amount over the agreed amount you can demand it back from your bank. The bank DD guarantee assures you of this. The bank will immediately make a repayment regardless of whether they can recover it from the payee or not. It is therefore just as safe, however I would agree that it is better to use standing order because then they can't change the amounts and therefore you don't need to keep any eye on what amounts they take. Just thought it was worth pointing out the DD guarantee, that's all. Definitely set up a standing order for the £20 per month and specify an end date for the payments (I think you can do that?)...