Business Account -chasing Me For Guarantee

[Goldlady]

But if you are being pursued personally for the money under the guarantee then you have every right to claim the charges back on behalf of the company IMO.

[slick132]

Dhoom,

Steven's away over the w/e and will respond when back.

I'll not offer an opinion as I'd be guessing and that's not what you need right now.

The point you raise is very interesting in that it may be crucial to have the bank chgs counter-claim tied in with the banks claim against you, for the disclosure strategy to work as Steven suggests.

[steven4064]

Originally Posted by dhoom

if i challange/counterclaim for charges will they reply back saying this is a company account and therefore you cannot claim the charges, but the company can.

You would be claiming them on behalf of the company - you said you had the authority to do that. THe purpose is to muddy the waters

Originally Posted by Goldlady

But if you are being pursued personally for the money under the guarantee then you have every right to claim the charges back on behalf of the company IMO.

UNfortunately, not so. Motally yes, legally no. Dhoom and the company are two entirely seperate entities. THe counter claim is only possible if dhoom as a representative of the company can claimi them back for the company.

[dhoom]

Steven
Could do with some help, need to fill the defence by end of next week

[steven4064]

Hi dhoom

I did you an outline in post #36 - have you expended it out at all. If so, post it here so we can have a look

[delboy1955]

I had this - watch ourself

These little beauties have a clause in the guarentee that means when you don't pay them they default you with everything - all accounts you have with them - its called cross referral and they will never admit to doing it. took me 5 years to prove it - and even then it was the information Commissioner.

Do a full and final for 50% (thats what my IP told me to do) and then when they agree it spread it out over 3 months- and removal of any and all defaults. Don't end up with a bank default like I did - took the sods 4 years to take it off - and even then it was the Information Commissioners Office holding a gun to their heads.

Dealing with Barclays is like me saying the wall is black and they say - what wall!

Delboy

[dhoom]

delboy

were you taken to the courts over this
was it Optima you were dealing with
can you give some more details.

[dhoom]

can someone point me to the direction of which spreadsheet I should use to work out the unlawfull charges and ineterest and what interest rate I should charge. They were charging a default rate of 29.9% on O/D.

[steven4064]

There are some spreadsheets linked from the bank templates library - you want the advanced ones.

[dhoom]

Thanks Steven

[dhoom]

Can I also claim for the default interest rate they were charging, i.e. instead of 9% they would charge 29% on the o/d was over limit.

[steven4064]

If you can decide when each is appropriate, why not

[dhoom]

Modified version, of Stevens defence - would welcome any comments


IN THE XXXXXXX COUNTY COURT CLAIM No: XXXXXX,

BETWEEN

BARCLAYS BANK PLC CLAIMANT

AND


DHOOM DEFENDANT

BARCLAYS BANK PLC

DEFENCE AND COUNTERCLAIM

DHOOM

Background

1. The Defendant neither denies nor admits the claim, LTD CO. operated a current account a/c no.22222222 sort code 123456 with the Claimant from around November 2005
.
2. The defendant was guarantor for various amount for the facilities offered by the Claimant this was detailed in a form of a facility letter totalling £xx,000

3. During the period in which the Account was operating the Claimant debited numerous charges to the Account in respect of purported breaches of contract on the part of LTD. CO. and also charged interest on the charges once applied. The Defendant understands that the Claimant contends that the charges were debited in accordance with the terms of the contract between itself and the LTD. CO.

4. A list of the charges ("the Charges") applied is attached to this defence and Counterclaim. The total including interest is £xxxx.

5. Due to the amounts the claimants debited in unlawful charges the lLTD. CO. had used up its entire OD to service this and had to seek extra facilities from the bank. In the interim around the late 2006/early 2007 the Claimant called upon the OD facilities which left the LTD. CO. with no option but to cease trading.6. around early 2007, the Claimant called in the guarantee from the Defendant.

7. On FEB 2008 the defendant made a request to the claimants solicitors to provide all relevent information in respect of the account and this claim but to date this has not happened.

Defence

8. The Defendant contends that the balance of the overdraft associated with the Account remaining when the LTD. CO. defaulted is incorrect as the Charges are contract penalties unlawful at Common Law and the Claimant also levied interest on the Charges.

9. The defendant also contends that as a direct result of the claimant the LTD. CO. had no choice but to stop trading resulting in defaulting over the OD facilities.

Counterclaim

1. The Claimant is claiming for money owed by LTD CO. which was opened around Nov'2005 and the defendant doesn't know whether this is still open or closed. Neither has the claimant provided a statement detailing the exact amount owed

2. During the period in which the Account was operating the Claimant debited numerous charges to the Account in respect of purported breaches of contract on the part of the LTD CO. and also charged interest on the charges once applied. The Defendant understands that the Claimant contends that the charges were debited in accordance with the terms of the contract between the LTD. CO. and itself .

3. A list of the charges applied is attached to these particulars of claim.

4. The Claimant contends that:

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the Claimant; exceed any alleged actual loss to the Claimant in respect of any breaches of contract on the part of the the LTD. CO. and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit.

b) The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the common law. The precedent for the law relating to contractual penalties was set in the case of Dunlop Pneumatic Tyre Co Ltd v New Garage Motor Co Ltd (1915) AC 79. Additionally, in the case of Murray v Leisureplay (2005) EWCA Civ 963 it was held that a contractual party may only recover damages in respect of its actual loss or liquidated losses.

5. Accordingly the Defendant claims:

a) the return of the amounts debited in respect of charges in the sum of £xxxx and any interest charged thereon;

b) Court costs;

c) Interest pursuant to section 69 County Courts Act as set out on the attached list of charges or at such rate and for such periods as the court deems just.


I believe that the contents of these particulars of claim are true

[slick132]

Hi Dhoom,

When does this have to be in - I know Steven is currently away so will get another of the Site Team to check it for you.

[dhoom]

Originally Posted by slick132

Hi Dhoom,

When does this have to be in - I know Steven is currently away so will get another of the Site Team to check it for you.

Monday the 14th

[nicklea]

Originally Posted by steven4064

Quote:
Originally Posted by dhoom
if i challange/counterclaim for charges will they reply back saying this is a company account and therefore you cannot claim the charges, but the company can.


You would be claiming them on behalf of the company - you said you had the authority to do that. THe purpose is to muddy the waters

Quote:
Originally Posted by Goldlady
But if you are being pursued personally for the money under the guarantee then you have every right to claim the charges back on behalf of the company IMO.


UNfortunately, not so. Motally yes, legally no. Dhoom and the company are two entirely seperate entities. THe counter claim is only possible if dhoom as a representative of the company can claimi them back for the company.

Hi Steven4064,

What you say about the guarantee isn’t quite as simple as that. It all hinges on whether he actually signed a guarantee or an indemnity.

If he signed an indemnity then he is the primary obligor and has no defences against the claim. However, I would say, from what I’ve seen of bank personal guarantees that it won’t be an indemnity.

Otherwise, it will be a guarantee, in which case he has a secondary obligation to the creditor and can raise all the defences that the primary obligor (ie his company) would be able to raise.

There’s lots of