Help Needed please with Mortimer Clarke

Lifestartsat40

Hi, I really hope someone with some knowledge can help me with a letter I received from Mortimer Clarke?
About 2 weeks ago I received a letter from the above about a really old debt, it was asking me to sign a Tomlin Order, the letter said that a claim form had been issued against me at my previous address in September 2017 - I have no knowledge of this and I am presuming the new occupant marked it as gone away and stuck it back in the post box, There is certainly no CCJ on my credit file so I know that no judgement by default has been issued.
The letter went on to say that they (Mortimer Clarke) had made a mistake on the Claim form by claiming interest and that this should by have happened, as a result, I either sign the Tomlin Order or they re-issue the Claim Form.

I wrote back saying that the debt was statute barred (it dropped off my credit report a couple of years ago)

Today, they have written back saying that the last payment on the account was March 2012 and as such, when the claim was issued in September 2017, it was within the Limitation period and therefore they are allowed to 'continue' with the court action.

Surely this cannot be correct, bearing in mind I have no knowledge of the Claim if it wasn't served a year ago, surely there is a limit to re-serving it? Please can someone help me out with a suitable reply?

Thank you in advance

sourcrates

Hi.
If those dates are correct, then so are Mortimer clarke.

Claim forms only need to be sent to the last known addresse they have on file for you.

Lifestartsat40

Thank you for this, but then why didn't they request judgement by default - bearing in mind they say the claim was issued a year ago? If it was returned to sender, what would the Court have done with it? and also, since they have now admitted there was a mistake on the claim form then doesn't that affect anything?

sourcrates

Lifestartsat40 wrote: »

Thank you for this, but then why didn't they request judgement by default - bearing in mind they say the claim was issued a year ago? If it was returned to sender, what would the Court have done with it? and also, since they have now admitted there was a mistake on the claim form then doesn't that affect anything?

Re: the tomlin order.

What terms are they asking you to agree too ?

Also you need clarification on weather you can still use the statue barred defence as the first claim was withdrawn.

Legal beagles is the place to get answers on this.

National_Debtline

Hi there,


This is a bit more complicated than it originally seems. Under the limitations act, if there has been a 6 year block of time since the debt has fallen due, with no payment, no written acknowledgement and no court action started then the debt may be statute barred and no longer enforceable through the county court. The 6 year clock starts from the last payment/ written acknowledgement or when the last payment was due and missed. Please be aware that claim forms only need to be issued to the last known UK address.


As they withdrew the claim it is unclear if the limitations act will apply. Ultimately you will need to get legal advice as soon as you can as the Tomlin Order may be time sensitive. You can either sign the Tomlin Order or wait and see if they do issue claim forms, and then try and defend on the basis of the limitations act. It would then be up to a court to determine if this applies. Please be aware that if you sign the Tomlin order you would be accepting liability and if you defend a claim unsuccessfully you can incur the costs of the other side, so there are a few things to consider here.


Best of luck,


Laura
@natdebtline

Just_Di

Lifestartsat40 wrote: »

About 2 weeks ago I received a letter from the above about a really old debt, it was asking me to sign a Tomlin Order, the letter said that a claim form had been issued against me at my previous address in September 2017 - I have no knowledge of this and I am presuming the new occupant marked it as gone away and stuck it back in the post box, There is certainly no CCJ on my credit file so I know that no judgement by default has been issued.
The letter went on to say that they (Mortimer Clarke) had made a mistake on the Claim form by claiming interest and that this should by have happened, as a result, I either sign the Tomlin Order or they re-issue the Claim Form.

I wrote back saying that the debt was statute barred (it dropped off my credit report a couple of years ago)

Today, they have written back saying that the last payment on the account was March 2012 and as such, when the claim was issued in September 2017, it was within the Limitation period and therefore they are allowed to 'continue' with the court action.

Surely this cannot be correct, bearing in mind I have no knowledge of the Claim if it wasn't served a year ago, surely there is a limit to re-serving it?

If you've been sent a Tomlin Order to sign that suggests the claim may still be live. If the claim was Discontinued then a Tomlin Order would not be appropriate or a legal option for the Claimant.

According to you Mortimer Clarke say they issued the claim in September 2017. If you didn't file an Acknowledgment of Service within 19 days of the claim Issue Date then they would have been able to get a Default Judgment (CCJ) against you at the click of a mouse (assuming it was issued by MCOL). So why didn't they do that then?

Maybe your hunch that the occupier of the property sent it back to the court marked Return to Sender - Not Known or Gone Away is correct. NCCBC would then send it back to the Claimant's solicitors Mortimer Clarke.

Arguing "Last Known Address" isn't always sufficient for legal purposes. They should have carried out due dilligance to see if you were living where they thought you were living before issuing.

When did you move from the old address and are you visible at your new address on CRA files? Are you on the Electoral Roll at your new address?

If/when you last looked at your CRA file did you check the Searches to see if they had searched your file at any stage before (or after) the claim was issued? Sometimes a search is carried out establishing you've moved so claims are then issued to the old address deliberately. I'm not saying that's what happened in your case, but it's worth establishing the facts.

You need the original claim details (claim number etc) so you can approach MCOL for your passowrd (if it's still live) so you may be able to file a Defence if the claim is.

You've not said who is/was the Claimant but I'll guess it was Cabot Financial. Am I right?

A little more information would be helpful

Di

Just_Di

Lifestartsat40 wrote: »

and also, since they have now admitted there was a mistake on the claim form then doesn't that affect anything?

Yes it does affect the situation.

If they've made a "mistake" on the Parliculars of Claim then they will need permission from the court to amend those POC.

They'll have to make a formal Application (and pay a court fee) or get you to sign a Consent Order agreeing to them rectifying their mistake.

Perhaps that's why they want you to sign a Tomlin Order

Di

Just_Di

I’ve had a thought

Why not send a s77-79 CCA Request to Mortimer Clarke Solicitors. This may protect your legal position if they (their client) can’t comply within the statutory timeframe.

If the claim was Discontinued then they would have needed to serve a Notice of Discontinuance on you, and file a copy of that NOD at court. You can check if that happened by contacting MCOL.

If the claim wasn’t Discontinued (which I doubt or they wouldn’t have sent you a Tomlin Order to sign) then it’s still live and needs to be defended. Non compliance with your CCA Request could form part of your Defence.

If the claim is live and they succeed in getting a Default Judgment because you’ve not filed your Acknowledgment of Service or Defence, then you may be looking at making an Application for a set-aside of the CCJ based on incorrect service of the claim under CPR 13.2 which makes the set-aside mandatory (in theory).

With the set-aside Application you would file a Draft Defence using non compliance with your CCA Request as one legal argument. You may have others but I don’t know the full facts at this stage.

So first and foremost you need to establish the status of this claim.

Di

Lifestartsat40

Thank you all for your very helpful replies. Assuming the Claim is still live - they say it was issued a year ago - is there no time limit for them to request judgement default
Surely this is not an option anyway, since they have admitted that the amount was incorrect (They had added interest making the debt about £26k, when they said their 'clients' hadn't wanted to claim interest)
I cannot even remember the original claimant, I think it may have been Northern Rock? which was then sold on?
I have received Tomlin orders in the past for debts which never went to court - I assumed they were sent when the Claimant knew there was no real chance of succeeding in Court to try and 'trick you' into accepting liability.
I am hugely stressed by all this, as I say - I don't really want to open a can or worms, this account defaulted in 2010 and disappeared from my credit file in 2016 - I certainly thought the debt was long 'dead'

National_Debtline

Hello again,


Based on your newest post, it seems possible this relates to a mortgage shortfall on a property. If so, then
unfortunately, they have a total of 12 years to chase you for a mortgage shortfall. That is 6 years for the interest aspect of the shortfall and 12 years for the capital. You can ask them lender for a breakdown of this debt, as some of it may be too old (any interest) but normally, the majority, if not all of the shortfall will be capital.


However, by doing this, that will very likely be considered an acknowledgement of the debt under the limitations act and can restart the 12 year clock to chase you for the capital. But without the breakdown you won't know how much is enforceable.


Alternatively, you may still be able to dispute this under the FCA’s Mortgages and Home Finance: Conduct of Business sourcebook (MCOB), which says that a lender “must deal fairly with any customer who has a mortgage shortfall debt”. A lender does not have to recover a shortfall debt, but if they do, they must tell you in writing, within six years of the date your home was sold. If they don’t, you can complain to the Financial Ombudsman Service (FOS). This applies to almost all mortgages taken out on or after 31 October 2004.


Best of luck,


Laura
@natdebtline

Just_Di

Lifestartsat40 wrote: »

Assuming the Claim is still live - they say it was issued a year ago - is there no time limit for them to request judgement default
Surely this is not an option anyway, since they have admitted that the amount was incorrect (They had added interest making the debt about £26k, when they said their 'clients' hadn't wanted to claim interest)
I cannot even remember the original claimant, I think it may have been Northern Rock? which was then sold on?

I am hugely stressed by all this'

Try not to feel stressed by this. Once you’ve got the facts you’ll be better equipped to take control of the situation instead of the situation controlling you

First you need to establish the legal status of the claim/court proceedings (if they exist).

If you look at the Tomlin Order which has been sent by Mortimer Clarke you will see the Claim Reference No (it should be on the top right if it’s been drafted correctly).

On the top left it will say which court has this claim which I expect will be something like Northampton County Court Bulk Centre (i.e. MCOL).

Call NCCBC on Monday using 0300 123 1056. They take ages to answer I’m afraid. If you give them the Claim Reference No, your name and Date of Birth you should clear security.

Then ask them to email you the “Case Details”. This is a printout from their database because they do not have a copy of the original claim form if this was issued online.

The Case Details will tell you the history of the claim so far so you can check the status.

Tell NCCBC the reason for your request (claim never received) and ask them to note it on the file.

The phone line team are Admin not Lawyers so they are not able to give you legal advice. At least if they do it may not be correct.

The Case Details will also include the Particulars of Claim so you can see what they are/were claiming and why they think they have the right to claim it. It will also state the original creditor so you can see if it was NRAM or not.

If the Claimant has got their pleadings wrong, and they've written to you to admit that, then that’s their problem not yours. They will need to seek permission from the court to amend those POC which may not be automatically granted.

While your talking to NCCBC check to see if the claim was Discontinued. If it was then why did they send you a Tomlin Order (that’s a rhetorical question).

(If it’s not with NCCBC it may have been issued by Salford with solicitor service, but cross that bridge when you come to it.)

Your priority is to establish the facts before you decide on your next step.

Di