Solicitor bailed out on me

[stupidboy]

Hi folks,

 

I hope you can help with a quick answer to a "simple" question. One of my credit card debtors commenced legal proceedings against me, even though they have not provided me with any relevant paperwork other than an illegible copy of a Priority Application for an additional credit card. My wife took out the original one. This is clearly not a CCA (it is only about 2" x 6" and has no real content). I approached a no-win, no-fee firm of solicitors and they took the case on.

 

They have now stated that I should go down the route of a Tomlin Order (I know what this is, as my wife already has one) and that this move will compromises the claim against me.

 

When I refused to go down this route they stated that the claim cannot now be defended and that they are bailing out on me.

 

Nothing has changed since they took the case on - so why are they bailing out? Is the lack of a legally enforceable CCA still a valid defence, or has something changed that I am unaware of? They have not explained their decision.

 

It seems that after a long period of inactivity, my debtors have decided to ruin Christmas for me by starting it all up again. Is there something in the air?

 

Thanks in anticipation - stupidboy.

[sillygirl1]

Well done for not sigining a Tomlin Order. They have probably realised that they cannot enforce this legally now and you should sit back and stop worrying.

 

You can complain to the Solicitors Regulatory Authority about their behaviour - which company was it?

[stupidboy]

I'm not sure about naming the firm - where would I stand with a libel action?

 

To be clear, it is the firm that is supposed to be acting on my behalf that want me to agree to a Tomlin Order - not the Creditor.

[Mr Worried]

Hi sb

 

Did they advise you to do this? yourself, and did you ask for their reasons?

 

Mr

[stupidboy]

My solicitors suggested the Tomlin Order out of the blue - and they have refused to give any other reason than it "compromises the claim" - which I do not understand. As far as I understand Tomlin Orders, it cements the claim and inserts a large cactus firmly up my backside.

[Mr Worried]

Yup that would be the case.

[stupidboy]

So going back to my original question - if there is no legally enforceable CCA between the creditor and I, bearing in mind that I have requested it, the solicitors have requested it, the creditor is claiming that this action is exempt from pre-action-protocols, we have no paperwork, the embarrassed defence has been lodged, why has my solicitor bailed out on me?

 

Has something changed that I am unaware of?

 

Reading the threads on this type of topic it looks like I have a good chance of applying successfully for a summary judgment and getting this thrown out before it even gets to court.

[sillygirl1]

I think because the embarrased defence has been filed, you should not need to have a solicitor do this, it is something you can do yourself.

 

If they have not provided paperwork at the time of the claim you can state that and state that you have asked under CPR rules for the paperwork, it has not been received and therefore the claim should be struck out, a much better strategy.

 

Sadly this looks like a case of a little knowledge has been misused. Solicitors are not always as up to date with things as they can be, it is now a very fast moving world in Consumer legislation.

[harrassed senior]

I would suggest that perhaps you send a formal demand by Recorded Delivery to the Solicitor involved for him to send you details of their complaints procedure. This would seperate the two points raised.

 

With regard to 'increased' activity on behalf of the creditors and their representatives, it remains a sad fact that the majority seek to cause the maximum distress, and what better time than Christmas?

[oilyrag]

Of course this is the case harassed. However I do not feel all is lost. We are with solicitors and have been for about 18months, not CMC or charity but specialist litigation people. Firstly, their immediate advice was NOT to get involved in any scheme like IVAs etc or Tomlin orders or anything similar, there are legal ways through the maze "and in any case in an absolute worst case scenario they expected to achieve a maximum 10% (yes ten per cent at the first offering) " full and final" which on a subsequent and quite separate issue they have done.

 

However there is much good advice on here. If an embarassed defence has already been filed then the cvil prcedure rules must apply and you can get sight of all documents that will be relied on in court. Secondly from a personal point of view I would inform the Solicitors Regulation Authority and demand from the solicitors that dumped you ALL of the paperwork and a detailed explanation as to their actions. I do believe that you entitled as of right.

 

There is another avenue open to you which is easier if you can get all of this if you are unsure and that is to contact the Bar Association under their direct public access programme. Some barristers will take "pro bono" work under this scheme but you will have to do all the legwork that the solicitors would normally do under the barrister's direction.

 

Hope that this may help you and provide another route for you to consider.

 

best of luck

oilyrag

[babybear39]

Ooh! I was not aware that there are any NWNF solicitors for alleged debts etc...

 

Would the OP mind posting the firms name and address via PM please?

[oilyrag]

Hi babybear,

 

I really don't believe that there are any left or that that there ever were in reality. When I made our decision to go with solicitors on medical advice (strange I know) i conducted searches on the'net which I have described before on here. Ours was/is certainly not free BUT following the fees asked for the upfront work/searches/SARs/evaluations which were in fact less than the total of one months payments including the disbursements, we are now in the position that we will be defended on a "whatever it takes" basis at no further cost to ourselves if the OC ever dares to go to court as the sols have suggested to them. Further to that they recovered all of the relevant charges to boot. People on here have asked by PM but they don't suit everyone and it took quite a bit of legwork by us to get this far.

 

regards

oilyrag

Edited December 13, 2010 by oilyrag

[stupidboy]

I don't want to send out this firm name as they have done me no good and I doubt that they will do anyone else any good.

 

Thanks for the answers to date and I will will let you know what happens.

 

The first thing I need is my original paperwork that I sent to the tosspot solicitors in the mistaken belief that they were working for me - not the other side.

[gem-100]

Hi stupidboy, I too have been told by my solicitor this week that there is little point persuing unenforceable agreements as the courts really wont support the debtor if they have been paying

the credit card debt for a period of time and using it to make purchases etc, as the proof is there on record and they see us as just using this as a ruse to get out of paying the total debt, I gave them two accounts to look at, one they said the agreement was good, the second had some areas of concern but I only stood a 65% chance of the case going in my favour and they would not touch it, I explained that I also had others where I had not been sent the true copy as requested, he explained that it really does not matter nowadays if there is no true copy, I asked about the Carey case where if the account is varied as is with a credit card, does the original still not have to be produced if requested so that comparisons can be made?, he said that if there was a fire at the holding bank and all agreements were lost that does not mean the accounts would automatically be written off, so basicaly to forget going the unenforceable cca route, it really makes me very annoyed that there is no real support if one wants to challenge it other than on here that is, but it is little help when the legal guys out there do not want to help, it does make one question if it is worth going down that path, I am now thinking about going the full and final settlement route instead,

at least I may get some of my creditors to agree hopefully, but will be watching with interest, good luck!.

Edited December 14, 2010 by gem-100

[nicklea]

gem, you appear to be talking very much as though you are thinking about taking your creditors to court. I would strongly advise against doing that. However, it is a totally different story if you are being taken to court as a defendant.

 

Hi stupidboy, I too have been told by my solicitor this week that there is little point persuing unenforceable agreements as the courts really wont support the debtor if they have been paying

 

If you are acting as the Claimanat then I would agree with you. If you are the Defendant then it is another matter all together. Just ask pt2537.

 

I explained that I also had others where I had not been sent the true copy as requested, he explained that it really does not matter nowadays if there is no true copy, I asked about the Carey case where if the account is varied as is with a credit card, does the original still not have to be produced if requested so that comparisons can be made?

 

I presume that you mean you have received a reconstructed agreement in response to a s77/78 request. It is perfectly fine for them to do this. However, it is entirely different if they try to take you to court with this and you took out the agreement before 6th April 2007. In this case they DO need to provide a document with your signature on that has all the prescribed terms from Schedule 6 of the 1983 Regs on it.

 

 

, he said that if there was a fire at the holding bank and all agreements were lost that does not mean the accounts would automatically be written off, so basicaly to forget going the unenforceable cca route,

 

Again, if you are a Claimant then that may be correct. If you are the Defendant and the agreement was made before 6th April 2007 then they would not be able to succeed against a properly argued defence.

 

They are right to say that the debts would not be automatically be written off - why would they do that. But in that situation they would not succeed in any court claim against a properly argued defence.

[stupidboy]

Thanks for all the replies folks, I've been a bit busy so haven't been able to spend the time on this.

 

This is going to remain my biggest problem and I guess Christmas is now booked up for me...

 

In essence, it seems to me that nothing has changed IF you are the defendant. They have to prove their case, and it is an issue of enforceability, not liability. Anyone that tries to argue that they are not liable for the (credit card) debt then they will lose. Those that keep to the enforceability argument will win.

 

No signature on a legally enforceable agreement = no enforcement.

 

Or am I missing something?

[sillygirl1]

You are missing the Rankine case, just because you don't have a signature on the document doesn't mean to say the debt does not exist, the debt exists and with credit card debt it is easy to prove it is you by the purchases on the card and the link to payments made by you.

 

No signature isn't an ABSOLUTE defence whereas no CCA IS.....

[stupidboy]

You got me confused now. When I mean no signature, I am referrring to the lack of a signed CCA.

 

I undertand that the debt exists, and can't argue liability. But I can argue enforceability, which is why my understanding of the situation remains the same as it was when I started all this 2 years ago.

 

If they cannot produce a legally enforceable CCA (which must have my original signature on it) then it cannot be enforced. Or am I still missing something?

 

SB

[Sand-Dancer0191]

Re: Solicitor bailed out on me

 

gem, you appear to be talking very much as though you are thinking about taking your creditors to court. I would strongly advise against doing that. However, it is a totally different story if you are being taken to court as a defendant.

I'll second that one nicklea...great reply

[babybear39]

Me third

[stupidboy]

bumping it as I really would like an answer - it's getting to squeaky bum time for me!

[stupidboy]

bumping again

[nicklea]

Thanks for all the replies folks, I've been a bit busy so haven't been able to spend the time on this.

 

This is going to remain my biggest problem and I guess Christmas is now booked up for me...

 

In essence, it seems to me that nothing has changed IF you are the defendant. They have to prove their case, and it is an issue of enforceability, not liability. Anyone that tries to argue that they are not liable for the (credit card) debt then they will lose. Those that keep to the enforceability argument will win.

 

No signature on a legally enforceable agreement = no enforcement.

 

Or am I missing something?

 

As long as you signed the agreement before 5th April 2007 then this is correct

 

EDIT following rdm2006's comments below

 

As long as the agreement commenced before 5th April 2007 then this is correct

Edited January 22, 2011 by nicklea

[rdm2006]

As long as you signed the agreement before 5th April 2007 then this is correct

 

Do you mean as long as the agreement was not signedbut dated before the 5th april 2007 lol

[stupidboy]

Thanks for this folks, but rdm2006 raises an issue.

 

The "agreement" which is actually an application form for another card on my wife's account and is only 2" x 6" without ANY of the requirements that I can see is signed, but is it is dated before the crucial date. Well before.

 

If something (anything) is signed by me, and they have the original, does that make a difference?

 

I can assure you that it is not a legally enforceable agreement when you read the CCA, but these solicitors are telling me that they can turn up with a reconstituted agreement and show the court what I would have signed, had they retained the original. Therefore, as I have obviously signed something, they will argue that I would necessarily have signed an agreement (which I didn't).

 

They are still telling me that I need to go the Tomlin order route as this compromises the claim but I just don't understand this.

 

Regards,

 

Stupidboy