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  • FIRST POST
    • Lifestartsat40
    • By Lifestartsat40 6th Sep 18, 11:50 AM
    • 47Posts
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    Lifestartsat40
    Help Needed please with Mortimer Clarke
    • #1
    • 6th Sep 18, 11:50 AM
    Help Needed please with Mortimer Clarke 6th Sep 18 at 11:50 AM
    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
Page 1
    • sourcrates
    • By sourcrates 6th Sep 18, 11:58 AM
    • 15,701 Posts
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    sourcrates
    • #2
    • 6th Sep 18, 11:58 AM
    • #2
    • 6th Sep 18, 11:58 AM
    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.
    I'm a Board Guide on the Debt-Free Wannabe, Credit File And Ratings, and
    Bankruptcy And Living With It, boards. "I volunteer to help get your forum questions answered and keep the forum running smoothly".
    Board guides are not moderators and don't read every post. If you spot an abusive or illegal post then please report it to forumteam@moneysavingexpert.com. Any views are mine and not the official line of MoneySavingExpert.com.

    For free debt advice, contact either : Stepchange, National Debtline, or, CAB.
    For Free Legal advice see : http://legalbeagles.info/
    • Lifestartsat40
    • By Lifestartsat40 6th Sep 18, 12:08 PM
    • 47 Posts
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    Lifestartsat40
    • #3
    • 6th Sep 18, 12:08 PM
    • #3
    • 6th Sep 18, 12:08 PM
    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
    • By sourcrates 6th Sep 18, 1:31 PM
    • 15,701 Posts
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    sourcrates
    • #4
    • 6th Sep 18, 1:31 PM
    • #4
    • 6th Sep 18, 1:31 PM
    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?
    Originally posted by Lifestartsat40

    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.
    I'm a Board Guide on the Debt-Free Wannabe, Credit File And Ratings, and
    Bankruptcy And Living With It, boards. "I volunteer to help get your forum questions answered and keep the forum running smoothly".
    Board guides are not moderators and don't read every post. If you spot an abusive or illegal post then please report it to forumteam@moneysavingexpert.com. Any views are mine and not the official line of MoneySavingExpert.com.

    For free debt advice, contact either : Stepchange, National Debtline, or, CAB.
    For Free Legal advice see : http://legalbeagles.info/
  • National Debtline
    • #5
    • 6th Sep 18, 1:40 PM
    • #5
    • 6th Sep 18, 1:40 PM
    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
    We work as money advisers for National Debtline and have specific permission from MSE to post to try to help those in debt. Read more information on National Debtline in MSE's Debt Problems: What to do and where to get help guide. If you find you're struggling with debt and need further help try our online advice tool My Money Steps
    • Just Di
    • By Just Di 6th Sep 18, 3:55 PM
    • 163 Posts
    • 67 Thanks
    Just Di
    • #6
    • 6th Sep 18, 3:55 PM
    • #6
    • 6th Sep 18, 3:55 PM
    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?
    Originally posted by Lifestartsat40
    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
    Last edited by Just Di; 06-09-2018 at 3:57 PM.
    • Just Di
    • By Just Di 6th Sep 18, 4:01 PM
    • 163 Posts
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    Just Di
    • #7
    • 6th Sep 18, 4:01 PM
    • #7
    • 6th Sep 18, 4:01 PM
    and also, since they have now admitted there was a mistake on the claim form then doesn't that affect anything?
    Originally posted by Lifestartsat40
    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
    • By Just Di 7th Sep 18, 7:56 AM
    • 163 Posts
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    Just Di
    • #8
    • 7th Sep 18, 7:56 AM
    • #8
    • 7th Sep 18, 7:56 AM
    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
    • By Lifestartsat40 7th Sep 18, 1:44 PM
    • 47 Posts
    • 21 Thanks
    Lifestartsat40
    • #9
    • 7th Sep 18, 1:44 PM
    • #9
    • 7th Sep 18, 1:44 PM
    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
    We work as money advisers for National Debtline and have specific permission from MSE to post to try to help those in debt. Read more information on National Debtline in MSE's Debt Problems: What to do and where to get help guide. If you find you're struggling with debt and need further help try our online advice tool My Money Steps
    • Just Di
    • By Just Di 8th Sep 18, 12:32 PM
    • 163 Posts
    • 67 Thanks
    Just Di
    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'
    Originally posted by Lifestartsat40
    Try not to feel stressed by this. Once youíve got the facts youíll 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 itís 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 Iím 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 ďCase DetailsĒ. 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 thatís 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 (thatís a rhetorical question).

    (If itís 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
    Last edited by Just Di; 08-09-2018 at 12:39 PM. Reason: Typos
    • Lifestartsat40
    • By Lifestartsat40 14th Sep 18, 9:12 AM
    • 47 Posts
    • 21 Thanks
    Lifestartsat40
    Thank you Di for your very helpful responses although Im afraid Im still to pluck up the courage to phone the NCCBC.

    Can I just ask why I can't just leave this? If they filed the claim a year ago and they still haven't requested judgement, what are the chances of them doing so now? They have now located me at my new address (thats where the Tomlin order was sent) so why has over a year passed since they issued the claim, its obviously not affecting my credit file.

    I am thinking of writing back, doing the CCA request, asking them to prove that a payment was made in 2012 (I'm still not sure this is correct) whilst still denying any knowledge of the debt - I thought it may be worth also mentioning to them that I am a stay at home parent and I don't work or claim any benefits (I am wholly reliant on my partner) in the hope that its all too much trouble for them to bother amending the claim, paying the fee, re-isuing the papers, complying with the CCA etc if they are not going to get anything reasonable back at the end of it. What do you think?

    By the way its not a mortgage shortfall debt.
    • Just Di
    • By Just Di 14th Sep 18, 5:01 PM
    • 163 Posts
    • 67 Thanks
    Just Di
    I am thinking of writing back, doing the CCA request, asking them to prove that a payment was made in 2012 (I'm still not sure this is correct) whilst still denying any knowledge of the debt
    Originally posted by Lifestartsat40
    I completely understand your hesitation to phone the NCCBC contact centre, I feel the same way too some days

    However it's hard to decide your next move while boxing in the dark. You need the facts in order to protect your legal position.

    You say this is a £26k debt so I doubt they'll walk away without making an effort to either persuade you to pay (sign the Tomlin Order) or continue with the legal proceedings (seek a Default Judgment since you've not filed an Acknowlegment of Service or your Defence).

    I strongly suggest you send the s 77 - 79 CCA Request asap. Once a Judgment is granted they no longer have a statutory duty to comply with your request and you'll have lost the opportunity to defend the claim on that legal argument if you attempt to set aside the CCJ.

    Was the original account a Northern Rock unsecured loan, which year was it taken out, how much was it for? Can you remember whether it was a Regulated or Unregulated loan (they didn't always get that bit right)? Was it linked to a Northern Rock Together Mortgage?

    Lawyers have an expression "we don't litigate through correspondence". If you start asking them to prove things or get into any kind of debate about evidence then you risk saying/doing something which could harm your case.

    Sadly they won't take any notice of the fact that you haven't got the funds to pay now. Debt purchasers tend to think of the long term. They like the certainty of a CCJ then they hope that your financial circumstances will improve as the years go by.

    Is the debt purchaser, and possible Claimant, Cabot Financial Ltd or Cabot Financial (UK) Ltd.?

    Di
    Last edited by Just Di; 14-09-2018 at 5:06 PM.
    • Lifestartsat40
    • By Lifestartsat40 25th Sep 18, 12:38 PM
    • 47 Posts
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    Lifestartsat40
    Right I dd the CCA Request a week ago & today I received a response - They say:-

    Our client has provided us with the following documentation

    1. Loan agreement with terms & conditions (This is a single page document with what appears to be my signature at the bottom - dated August 2005)
    2. Statement of account from original creditor
    3. Letter dated 2013 advising that the debt had been assigned
    4. signed statement of account on behalf of the claimant (note this has all the interest added onto it, plus court fees plus further interest - the interest they said they did not wish to claim and would therefore have to amend their claim for)

    It then goes on to say
    "Please be advised that Under the Financial Conduct Authorities Consumer Credit sourcebook (rule 13.1.4) a firm is able to reconstitute a copy of the agreement and there is no obligation to provide a copy which includes a copy of the signature (confirmed by the case Carey V HSBC Bank 2009)

    They then say that they consider the agreement is now enforceable , if you disagree, please explain why?

    Its almost like they are testing me to see how much I know and whether Im likely to cause them trouble in court - if you can shed any light or give any help on a response, I would be so grateful

    Thanks in advance
    • Just Di
    • By Just Di 25th Sep 18, 12:53 PM
    • 163 Posts
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    Just Di
    " . . . a firm is able to reconstitute a copy of the agreement and there is no obligation to provide a copy which includes a copy of the signature (confirmed by the case Carey V HSBC Bank 2009)

    They then say that they consider the agreement is now enforceable , if you disagree, please explain why?

    Its almost like they are testing me to see how much I know and whether Im likely to cause them trouble in court - if you can shed any light or give any help on a response
    Originally posted by Lifestartsat40
    I read that to say they're admitting the credit agreement is reconstituted when they quote Carey v HSBC Bank 2009. Joanna Connolly was the lead solicitor on that case so I know a thing or two about what will pass the test of 'honesty and accuracy' of reconstituted documents

    They are asking you to tell them what's wrong with their documentation so they can attempt to remedy the problem.

    I've already advised you to contact the court (NCCBC) to establish the status of this claim because you are vulnerable to a CCJ unless you file your Defence.

    Di
    • Just Di
    • By Just Di 25th Sep 18, 1:16 PM
    • 163 Posts
    • 67 Thanks
    Just Di
    Right I dd the CCA Request a week ago & today I received a response - They say:-

    Our client has provided us with the following documentation

    1. Loan agreement with terms & conditions (This is a single page document with what appears to be my signature at the bottom - dated August 2005)
    2. Statement of account from original creditor
    3. Letter dated 2013 advising that the debt had been assigned
    4. signed statement of account on behalf of the claimant (note this has all the interest added onto it, plus court fees plus further interest - the interest they said they did not wish to claim and would therefore have to amend their claim for)

    . . . . if you can shed any light or give any help on a response, I would be so grateful
    Originally posted by Lifestartsat40
    It's difficult for me to comment on those documents without actually seeing them, but Mortimer Clarke solicitors will know that s 77-79 CCA is for "infomation" purposes not "proof" purposes. This means that they can satisfy s 77 - 79 by sending you 'something' but whether that 'something' passes the test of other sections in the Act is a different story.

    I'm not aware of the solicitor telling you they needed to amend their Particulars of Claim. I thought they had sent you a Tomlin Order to sign, perhaps to avoid the need for them to make an Application to the court to amend the POC.

    Can you answer my previous question about who is the Claimant in these legal proceedings (i.e. Mortimer Clarke's client). Is it Cabot Financial Ltd or Cabot Financial (UK) Ltd or maybe Marlin? This is very important and possibly central to your Defence.

    Di
    • Just Di
    • By Just Di 25th Sep 18, 1:26 PM
    • 163 Posts
    • 67 Thanks
    Just Di
    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'
    Originally posted by Lifestartsat40

    No there is no time limit for the Claimant to request a Default Judgment (CCJ).

    You've engaged in coreespondence/phone calls with them so you are aware that there is a claim (please check with NCCBC). It would hard to argue that you didn't file a Defence because you didn't know you needed to.

    Di
    • Lifestartsat40
    • By Lifestartsat40 25th Sep 18, 4:55 PM
    • 47 Posts
    • 21 Thanks
    Lifestartsat40
    Hi
    The claimant is Marlin who purchased the debt (a Northern Rock unsecured Loan)

    The first I knew of this claim was a letter I received on 15th August which said

    "We confirm that a claim was issued at .... (old address) on 31st August 2017 for the amount of £26k.... including interest in the sum of £9k..... Our client did not wish to claim interest. We apologise this happened. This was an administrative error on our behalf and we are taking proactive action to address this. We have been instructed by our client to remove the interest and make an application to re-serve the claim form. This will involve making an application to court to amend proceedings and re-serve them on you.

    They then go on to say that they would like to give me the opportunity to settle the account without further action and propose the Tomlin Order.

    I'm not sure why they have left a year between the original claim and sending me this letter.

    In response to the CCA Request, all they have sent me is a one page document which states the amount borrowed, the APR, and a small box of Key information. Is it not relevant that they are asking me why I don't see it as enforceable? Are they not supposed to send the full credit agreement with all the correct prescribed terms and conditions therein?
    Thank you
    • Lifestartsat40
    • By Lifestartsat40 25th Sep 18, 4:56 PM
    • 47 Posts
    • 21 Thanks
    Lifestartsat40
    its Marlin Europe V Limited if that gives more information
    • Just Di
    • By Just Di 26th Sep 18, 11:37 AM
    • 163 Posts
    • 67 Thanks
    Just Di
    In response to the CCA Request, all they have sent me is a one page document which states the amount borrowed, the APR, and a small box of Key information. Is it not relevant that they are asking me why I don't see it as enforceable? Are they not supposed to send the full credit agreement with all the correct prescribed terms and conditions therein?
    Originally posted by Lifestartsat40
    I can't answer that question without seeing the documents which they have sent you.

    It's a £26k claim so I doubt they'll walk away.

    You've not filed your Defence. I have advised you to contact NCCBC to get the case details so you are in a position to deal with this claim before they enter judgement against you (a CCJ) and proceed to the enforcement stage.

    Part 18 Questions may help you but that depends on what is pleaded in the Particulars of Claim which NCCBC can send you if you ask them.

    Do you own your own home or rent?

    Di
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