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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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Alex, My question is essentially whether I can have a Tomlin's

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Hi Alex,
My question is essentially whether I can have a Tomlin's Order set aside and continue with the original proceedings?
The delay in the Defendant following critical aspects of the Order has lead me to suffer stress and left me in poorer financial position.
Submitted: 1 year ago.
Category: Law
Expert:  Ash replied 1 year ago.
Hello and thanks for asking.
What were the terms of the Order?
Customer: replied 1 year ago.
Alex,
Can I send you a copy?
Expert:  Ash replied 1 year ago.
Can you attach it here? In short did it give a timeframe?
Customer: replied 1 year ago.
Not sure how to attach with iPhone, any suggestions? There were a few parts with time on them. Timeframe for removing charge on the property which D is in breach. Monthly payments to be made. D missed some more than 3 at one stage, thus I can claim whole sum. Buy out his share within 2 years but it hasn't happened, agreed a extension until November.
Expert:  Ash replied 1 year ago.
Ok. Then what you need to do in that case if they have not complied is you will see there is a clause which says 'liberty to apply' or similar wording. You therefore need to use form N244 and make an application to apply to set it aside because of breach.
Hopefully it will says what can happen in default, ie you can enter Judgment or something. If not you just need to apply to the Court to set aside and directions and how to continue,
Form N244 is here:
http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n244-eng.pdf
Can I clarify anything for you about this today please?
Alex
Customer: replied 1 year ago.
Hi Alex,
Thanks for that.
My wife is home now I am able to attach a copy of the Tomlin's Order for you and have questions relating to that. With that I can forward the letters I have send him and responses from their Solicitor response only after the 5 letters I had sent the Defendant, along with background events since the Tomlin's Order.Can do that?
Expert:  Ash replied 1 year ago.
Yes but please bear in mind this is a limited cost service, whilst I can read the Tomlin Order sadly I cant go through lots of paperwork.
Alex
Customer: replied 1 year ago.
I appreciate that Alex, I'm sure you will be able read them in a few minutes, not long or complicated but you feedback will clarify the road map for me. That would be of great help!
Expert:  Ash replied 1 year ago.
Sure.
Customer: replied 1 year ago.

Attachment: 2015-09-20_005621_letter_24th_march.pdf

Attachment: 2015-09-20_005640_letter_14th_april.pdf

Attachment: 2015-09-20_005659_fourth_letter_sent_31st_march_2015.docx

Attachment: 2015-09-20_005723_fifth_letter_sent_20th_april_2015.doc

Attachment: 2015-09-20_005755_28th_april_2015_defendants_solciitors_letter.pdf

Attachment: 2015-09-20_005821_possession_order2013.pdf

Attachment: 2015-09-20_004832_events_since_the_tomlin_order.docx

Hi Alex,

Seemed to have worked out the method to attach them now. A quick persual and your thoughts if you think grounds exist to set aside and carry on with the original proceeedings.

Much appreciated.

Expert:  Ash replied 1 year ago.
Yes you can apply to set aside given the dates.
Does that help?
Alex
Customer: replied 1 year ago.

Thanks Alex, that helps.

I feel a huge weight is lifting from my shoulders. You feedback has been amazing.

I have few more questions that I need help with. Initally, I'm not sure what dates you are refering,'given the dates'.Please can you clarify.

I missed sending you the third letter I sent to the D. I have attached it.

Attachment: 2015-09-20_114941_3rd_letter_to_ismail_12092014.docx

and the last letter from the D's Solicitor. I will send you as soon as I can ( I have to get it scanned ).

Expert:  Ash replied 1 year ago.
That makes no difference,
Does that help?
Alex
Customer: replied 1 year ago.
Sorry it's doesn't as I don't understand you last answer as well as that you haven't answer my question in my previous message. Please bear with as I have some points that need clarification. Is that ok?
Expert:  Ash replied 1 year ago.
Ok.
Customer: replied 1 year ago.
'Yes you can apply to set aside given the dates.'
Please can you clarify what 'dates' you are referring to.
Expert:  Ash replied 1 year ago.
Term: 4,5,6,8,11,12,
Alex
Customer: replied 1 year ago.
D is in breach of 1(and thus 2& 3 inactioned),4,5,11 but agreed to 12.
I'm in breach of 7,mortgage arrears of £4,300. D is somewhat responsible for this due to his actions.
Can I still apply the Tomlin Order to be set aside?
Expert:  Ash replied 1 year ago.
Yes you can!
Does that help?
Alex
Customer: replied 1 year ago.

Attachment: 2015-09-20_223637_26th_august_2015_defendants_solicitor_correspondence.pdf

I have just managed to get the last letter sent by the D's solicitor,2nd of 2 sent. Both of which I have yet to send a reply.

Does this change the situation at all?

Expert:  Ash replied 1 year ago.
No, you can still apply to set side.
Does that clarify?
Alex
Customer: replied 1 year ago.
Yes that helps. I have a concern.The D Solicitor will naturally oppose the application.What would be their likely objections?If so Could they could succeed on them?
Expert:  Ash replied 1 year ago.
I can't say what their objections would be. I have not been in Court, nor seen all the evidence. Can they object - yes of course they can. Will they be successful - that is down to the Judge.
Does that clarify?
Alex
Customer: replied 1 year ago.
Thanks that helps. I haven't replied to their last 2 letters.Shall I send them a letter answering their points raised with the application or a simple letter with the copy of the application. What would you advise?
Expert:  Ash replied 1 year ago.
I would yes, otherwise it looks unreasonable. One letter is fine if you wish to do that.
If I could invite you to rate my answer so that the site credits me for our time spent looking at the documents.
Alex
Customer: replied 1 year ago.
With A simple letter or one answering points raised in their last two letters.
Naturally,You deserve a top rating. If I do that now will I be able to raise further outstanding points?
Expert:  Ash replied 1 year ago.
I would write one letter and address the points you feel need addressing. If you rate the question remains open.
Alex
Ash and 2 other Law Specialists are ready to help you
Customer: replied 1 year ago.
What pertinent evidence should I rely on and what form a Witness statement, statement of case, or set out information in box of N244?
Expert:  Ash replied 1 year ago.
You need to set out in Box 10 a witness statement saying why it should be set aside. So the breaches etc.
Alex
Customer: replied 1 year ago.
Need some more help with N244. Is the back round information not relevant for this for box 10?Also I assume it should be with a hearing. How long should the hearing be, 30 mins? And deputy or district judge ?
Expert:  Ash replied 1 year ago.
Yes there should be a hearing, time estimate 1 hour and District Judge.
Alex
Customer: replied 1 year ago.
Would you advise self litigating at the hearing?
Expert:  Ash replied 1 year ago.
I would always suggest instructing Counsel as they can present your arguments well in Court. But there is a cost of course and if you cant afford it, representing yourself may be the option.
Alex
Customer: replied 1 year ago.
Would all the background come up naturally in the hearing?
Expert:  Ash replied 1 year ago.
Yes, because there is likely to be a chronology of events for the Judge to understand the position.
Alex
Customer: replied 1 year ago.
Any tips to source public access good councel ? Should I write the letter and & sent N244 as the same time start looking for councel?
The councel I used last March didn't suggest at setting the Tomlin Order aside at all. Should he have suggested that considering the breaches?
Expert:  Ash replied 1 year ago.
There are several sites you can get quotes from. I would get Counsel to draft the N244 for you.
Alex
Customer: replied 1 year ago.
Please recommend these sites. Should councel have suggested setting aside the T O?
Expert:  Ash replied 1 year ago.
www.clerksroomdirect.com
www.mybarrister.co.uk
Alex
Customer: replied 1 year ago.
Should Councel have suggested setting aside T.O.?
Expert:  Ash replied 1 year ago.
I havent seen all the evidence so it would be unfair of me to give a view one way or another.
Alex
Customer: replied 1 year ago.
Ok. Wouldn't it count against me heavily being in arrears for the mortgage? The other side would argue they are now trying follow the Order thus stay with it?
Expert:  Ash replied 1 year ago.
yes possibly, but again you are asking me to give a view when I havent seen all the evidence.
Alex
Customer: replied 1 year ago.
I have provided it to you all. I can't think what more to give. Based on that what do think with regards ***** ***** two messages I sent you.
Expert:  Ash replied 1 year ago.
I think you have a chance yes.
Alex
Customer: replied 1 year ago.

Thank you once again.I think I'm nearly there. In the letter sent by the D's Solicitor on 26th August(you have a copy), I am accused of 'self interest' because I have indicated a value of the property '£320k'. They give a range '£400k to £430k'. Yet,in the estate agents property information they sent with their letter it shows a 5 bedroom house with a guide price of '£375k to £400k'. Is that one of the points to be addressed in the letter I send along with the appliciction?

Also I have a couple of voicemail messages he has left me last year July I wanted you to listen to but was unable to attach. In this he is exteremely angry, condescending,accusasatory and gloats that the house prices are going up thus reveals his 'tactic' .Surely this and above are examples of his 'self interest' and can be used at the hearing? Is there an email address or another way to send these voice messages to you?

Expert:  Ash replied 1 year ago.
There is no way I can give you my number or email its against site rules. Everything you are going to rely on must be submitted with the application.
Alex
Customer: replied 1 year ago.

Is there another way I can send these voice mails to you via this site?

Just so I'm sure. The house price discussion should be raised at the hearing or also raise it in the letter that we send them proir hand, giving them notice that we are applying to Court?

p.s. Mine is a 3 bedroom house

Expert:  Ash replied 1 year ago.
If you are applying to set aside on breach you need to set out very clearly all the reasons why you are doing so and evidence you are seeking to rely upon.
Sadly there is no way I can get the voicemails. Please remember our discussion about extra work, this is a basic question and answer site and not intended for in depth legal analysis or consideration of documents.
It may be at this stage you should get a Solicitor or Barrister to represent you, to consider full legal argument and prepare submissions on your behalf.
Alex
Customer: replied 1 year ago.
Appreciate that! Thank you. Regarding a matter seperate from the house dispute is the money I lent him approximately £50k. Will I be able to claim that? Can it joined to proceedings assuming the Tomlin's Order can be set aside?
Expert:  Ash replied 1 year ago.
No, this is a new dispute and new proceedings must be issued.
Alex
Customer: replied 1 year ago.
Hi Alex,
I had a meeting a Solicitor who had asked me to return with case file today. It was a disappointment.He initially mentioned the idea of setting aside the T.O. last Friday.
He said term 1 has no date so thus they are not in breach. Your feedback is appreciated.
Expert:  Ash replied 1 year ago.
Hi
I am just following up to see if there is anything else I can help with?
If you have not done so already might I ask you to rate my answer before you go today please, the button should be at the bottom of the screen.
If you need more help please click reply.
Alex
Customer: replied 1 year ago.
Hi Alex, Thank you for you follow up email if I have any further queries. I thought you had closed the matter! And I'm thinking I have not been able to tip you !I have taken legal advise, several opinions. It appears its difficult to find the specialist I require to have the understanding, courage, confidence and knowledge to set aside a Tomlin Order.My question is this possible in your personal experience at County Court to achieve this?
Expert:  Ash replied 1 year ago.
The system should allow you to leave a tip and thank you in advance.
It is difficult, but litigation is.
Alex
Customer: replied 1 year ago.
I will do . My question, Is possible in your experience to have a Tomlin Order set aside?
Expert:  Ash replied 1 year ago.
It is possible yes.
Alex
Customer: replied 1 year ago.
Term 1 on the T.O. states ' the Defendant shall execute a transfer...' But has as no date to do so. Are they in breach?Please comment.
Expert:  Ash replied 1 year ago.
Of that point probably not. No date.
Alex
Customer: replied 1 year ago.
So couldn't it be argued that its open to abuse as the D has done. Thus another reason to be set aside ?
Expert:  Ash replied 1 year ago.
It is possible to try and argue that. As I said litigation is never certain
Alex
Customer: replied 1 year ago.

These questions are bothering me. Can you help?

1).I have remembered a point up to the signing of the Tomlin Order when I was acting litigant in person!

Another brother of mine had given me an inducement to settle by offering me a share of his property. Initally, 20% then reduced it to 10% and then withdrew it all together! This period of negotiation wasted weeks of valuable time. The other side werer verbally agreeing to my terms but not putting on paper.

More signifinantly,the was trail immenent and I was withoutout legal representation councel. A situation of great stress!

Is this relevant information to include in the application?

2).Does a term like 'full and final settlement of all issues of whatever nature whether arising out of these proceeding or not' preclude me starting an action to set aside such an Order?

p.s. How do I pay you extra/tip you?

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