Barclays Guarantee

[Tarka2]

Hi all,

 

We are in almost an identical position as the OP.we are under pressure as we are going to court again on Tuesday. Barclays are seeking a possession order over our home to pay a personal gaurantee for £70k plus interest= 83k.

 

On our company going into voluntary liquidation (March 2006) Barclays took on collecting our debtor book, but failed to collect the debts and this in turn has left a massive shortfall on our account.

 

We have been to court on 2 occasions,on the first occasion we filed our own defence based around lack of information, incorrect figures and reasons for non collection of book debt,

 

On the 2nd occasion Barclays asked for an adjournment, due to the fact they could not find our file.

 

We were due to go to court for a third time on the 3rd of October but received a draft consent order from Barclays' (tlt solicitors), with 5 directions listed, as follows:

 

1, the hearing for 3rd october to be vacated.

2 Disclosure by list to take place by 28th november

3 inspection to take place by Dec 2008

4 witness evidence to be served by 5th Jan

5 pre trial review hearing to be listed for 2nd feb 2009

 

which we agreed to and signed (on the advice from a solicitor, over a phone call)

 

As we understood it, Disclosure would be from there side , detailing lack of cash collection, and the amounts explained, but nothing was forthcoming.

 

We recieved yesterday a bundle including An N244 to strike out our defence and not go to trial because we did not disclose.

 

Ironically the solicitors' new witness statement figures contradicts the previous solicitors reply to our defence, also they do not explain the lack of collection "reason not known" being used over and over, although they list some reasons against other debts i.e copy invoice req ,contra etc

 

simply the sums just do not add up.

 

we feel out of our depth now,

 

what can we do?

 

we think we want this to go to trial can we force this?

 

can the disclosure of charges be used in our favour for a stay?

 

how do we proceed?

 

mentioned earlier in this post,the get out clause RE Gaurentee's is this applicable in our case?

 

Can we challenge the charges incurred during the Company's trading to get a stay. Bank account opened July 2004 closed MArch 2006.

 

we want to save our house?

 

Any copy of documents required can be posted.

 

Time is obviously of the essence.

 

Any help greatly received.

Edited January 30, 2009 by slick132
anonymity

[delboy1955]

I have battled with Barclays and they only respond to one thing - attackThey rely on the british mentality of giving in - don'tGet yourself a vicious, ugly meat ripping lawyer and go for their throats. List everything they have done wrong, get angry, note everything they have done, missed, forgotten, not followed up. Read it out, make them look jerks (which they are)Attack, attack and attack again, Get your MP involved - its they only way to win with them. Reasoning with them gets nowhere, compromise is weakness. Barclays only respond to the law of the jungle. SRA them and find out what they are up to (yes you can see all their internal memo's (you will be staggered at what you find).Just for the record, I am on the final game in with the Ombudsman - still fighting, but now am winning big style - its taken over 5 yearsWith Barclays you will only ever win because you never stop fighting and attacking. Del

Edited January 30, 2009 by delboy1955

[Tarka2]

hi del,

 

thats exactly what we have done so for,and we thought we were going the right direction,but with them now trying to dismiss our defence with this N244 and not go to trial.its sort of took the wind out of our sails.

 

are we right to try and stop this N244 and go for trial ?

 

what were/are your circumstances del ?

 

can we Subject Access Request them on Tuesday,how do we go about it,

 

we really appreciate your reply

 

thanks

Edited January 30, 2009 by slick132
anonymity

[slick132]

Thread moved to legal forum.

 

Hi,

 

I'll flag this up for attention but it's very late to be defending this properly.

 

If you agreed to the Directions, etc, you should have complied with them fully including the submission of evidence.

 

If you're in court on the 2nd, that's MONDAY, not Tuesday.

[Tarka2]

Hi,

directions stated 2nd feb,new paperwork states 3rd feb.

 

we know its late,but we were under the impression both parties were asking for disclosure,and nothing came from their side for us to respond to?

 

the figures blatently differ from there reply to our defence and there new N244 witness statement eg book debt on first = 130k collected 71k... then on witness statement = 112k and collected 80k .

 

Our defence has been to date that we did not believe the figures to be accurate and asking them for evidence,which as you state if done properly would this not have equated to in legal terms an Subject Access Request/disclosure of charges etc etc?

 

thanks for reply

Edited January 30, 2009 by slick132

[slick132]

You may have some help from the fact that Barclays have also failed to comply until now but it may depend on the judge next week.

 

Have you seen the PM I sent you - please respond.

 

I hope someone is able to offer you some advice but you may be wise to seek legal opinion, given what is at risk here.

[Tarka2]

yeah,replied to your pm slick

 

thanks for sorting that

 

we did take legal advice before the last court visit, and basically they say we have a good case for negligance,but are we gonna take the big guys on,?

 

we certainly cant afford to take them on financially,butif we can represent ourselves in a more proffesional manner with the assistance of you guys,

 

they have already had an "unless order" on them,

 

our letters to them for the last three years have been requesting information ,to clarifythe situation,which they still havent done,they are still saying they are unable to provide reasons why most of the companys invoices were not collected,hiding behind "reasons not known"

 

they have been a shambles from the start,

 

did you get my PM response slick?

 

thanks again

[delboy1955]

HiThats why I said - get a meat ripping lawyer.BTW the fact that they have moved to dismiss is common - they request move to dismiss everything , its their standard frighteners.When they did that to me - I moved to dismiss their defence on the basis of gross incompetence and being economical with the facts. Tit for tat and the judge threw both of them out (which was what I wanted).Always throw in other facts with evidence, they only use local lawyers, or corp lawyers who haven't got a clue what this is all about.Just remember, you are the same, smart team that built up the business - just a bit down on your luck. that same drive will putyou back on topDel

[Tarka2]

any recommendations slick?

[bazaar]

Tarka2,

 

Make sure you have the correct date for court, Please check with the court, they may be trying to pull the wool.

You should be able to counter their strike out by asking the Judge to force disclosure now.

They have shown contempt for the Judge by not providing this.

Seems like a common posture for them to try and evade producing documentary proof, (They most likely havent got any, or its so bad and they know it.)

Edited January 31, 2009 by slick132
anonymity

[slick132]

did you get my PM response slick?

Sure did and it'll be done asap.

[dhoom]

I have my own issues with Barclays

 

http://www.consumeractiongroup.co.uk/forum/business-claims-bank-charges/132425-business-account-chasing-me.html

 

I have a hearing for summary judgement.

[Tarka2]

bazaar,

 

thanks for the reply,will double check with court.

counter strike-how do we go about that ,form ect? the court has already ordered disclosure,but do we need do anything to force disclosure?

 

they have now three times not adhered to orders from the court

 

thanks

[Tarka2]

dhoom,

 

yeah,ive read your thread it was this that spurred me on to post a thread,origanally i had posted on your thread,the mods moved me.

 

whats summary judgement,

 

pm me we im keen to know how your case has progressed.

 

thanks

[caro]

Hi all,

 

We are in almost an identical position as the OP.we are under pressure as we are going to court again on Tuesday. Barclays are seeking a possession order over our home to pay a personal gaurantee for £70k plus interest= 83k.

 

On our company going into voluntary liquidation (March 2006) Barclays took on collecting our debtor book, but failed to collect the debts and this in turn has left a massive shortfall on our account.

 

We have been to court on 2 occasions,on the first occasion we filed our own defence based around lack of information, incorrect figures and reasons for non collection of book debt,

 

On the 2nd occasion Barclays asked for an adjournment, due to the fact they could not find our file.

 

We were due to go to court for a third time on the 3rd of October but received a draft consent order from Barclays' (tlt solicitors), with 5 directions listed, as follows:

 

1, the hearing for 3rd october to be vacated.

2 Disclosure by list to take place by 28th november

Did you receive a disclosure list from Barclays?

 

3 inspection to take place by Dec 2008

Have you inspected the items on their list? Is this what you've just received?

 

4 witness evidence to be served by 5th Jan

Have both you and the bank done this.

 

5 pre trial review hearing to be listed for 2nd feb 2009

So this isn't the full hearing. How long is listed for the hearing

 

 

which we agreed to and signed (on the advice from a solicitor, over a phone call)

 

As we understood it, Disclosure would be from there side , detailing lack of cash collection, and the amounts explained, but nothing was forthcoming.

 

We recieved yesterday a bundle including An N244 to strike out our defence and not go to trial because we did not disclose.

 

Ironically the solicitors' new witness statement figures contradicts the previous solicitors reply to our defence, also they do not explain the lack of collection "reason not known" being used over and over, although they list some reasons against other debts i.e copy invoice req ,contra etc

 

simply the sums just do not add up.

 

we feel out of our depth now,

 

what can we do?

 

we think we want this to go to trial can we force this?

 

can the disclosure of charges be used in our favour for a stay?

 

how do we proceed?

 

mentioned earlier in this post,the get out clause RE Gaurentee's is this applicable in our case?

 

Can we challenge the charges incurred during the Company's trading to get a stay. Bank account opened July 2004 closed MArch 2006.

 

we want to save our house?

 

Any copy of documents required can be posted.

 

Time is obviously of the essence.

 

Any help greatly received.

 

It seems to me that the first thing you need to do is prevent your defence being struck out so you can get a full hearing at a later date. You'll have more time to prepare properly for this.

 

I'd suggest that you're totally honest and admit that you hadn't fully understood the order, but now you were more informed would like the opportunity to fully defend yourselves.

 

Draw attention that you have only just received the bundle, and not had sufficient opportunity to acquaint yourselves with their bundle, and that as litigants in person you really needed the 4 weeks proposed in the order to understand the documents and prepare a fuller defence. Point out that there are apparent inconsistencies in their case.

 

Have Barclays provided a full breakdown of the sum claimed? Does it include charges? If so you should ask for disclosure of how the amount for charges were calculated, and what the ACTUAL cost to the bank was.

 

Can you post the banks Particulars of Claim and your defence please.

 

Also can you tell us a bit more about your personal circumstances. Do you have children? Is it a joint mortgage and is the claim against you both? Anything which may be a reason for the judge to deny the possession order, and more importantly at the moment, prevent your defence being struck out.

[Tarka2]

Hi Caro,

answers to your questions:

Did you receive a disclosure list from Barclays? No we have not received anything from Barclays,The bundle received on Thursday came from the courts.

 

Have you inspected the items on their list? Is this what you've just received?

No List,just a bundle with N244 (to strike out our defence) from the courts.

witness evidence to be served by 5th Jan

Have both you and the bank done this. Neither party have done this

 

pre trial review hearing to be listed for 2nd feb 2009

So this isn't the full hearing. How long is listed for the hearing

On the directions from the court-states pre trial review hearing

On a notice of hearing(received this morning from the court)it states an application hearing

On the bundle received from the bank via the court ,entered on N244 ,they have requested 1 1/2 hours for the hearing.

 

 

they had not given a breakdown until in the bundle we received on Thursday there is a INTEREST AND AVERAGE BALANCE CALCULATOR showing 70k plus interest at 5% above base=82k.so does not include any charges.

but massive charges have been charged to the current account whilst trading and after (no breakdown).we have requested statements but to no avail.There are charges stated and taken from the monies collected in(7k),which would have lessend our liability.In these circumstances can we ask for total disclosure and ACTUAL COSTS of these charges or/and start the reclaim process?

 

we will post particulars of claim and our defence shortly.

 

there are definate differences on our "outstanding book debts" and also "monies collected in" between their "reply to our defence" and their latest witness statement,these diferences alone are 30k.

 

there is a large shortfall in monies collected in,which they "reserving the right to adduce further explanation" why? can we force this issue? this again would have reduced our liability.

 

Caro,on tuesday we were going to do exactly that,point out innacuracies,which we have been doing/asking from the start.and be honest about the non disclosure on our part.which as our first non compliance and their second(not inluding adjourning for "loss of file" and another "not being prepared)surely this doesn't look good on them?

 

on the courts paperwork notice of hearing there is a "please note" which states "this claim may be realeased to another judge,possibly at a different court".this has never appeared on previous docs,why now ? for what reasons?

we do have 2 children (3 & 8 y/o), it is a joint guarantee to the bank,our principal mortgage is joint (no defaults).

 

 

many thanks for your assistance and replys,they are very much appreciated.

 

thanks

[Tarka2]

Caro,

please find attached our defence and particulars of claim.

 

our defence.pdf

 

particulars of claim.pdf

 

 

can we add/ strengthen at all?

 

any advice appreciated

 

thanks in advance

Edited January 31, 2009 by Tarka2
attachment

[humbleman]

whats summary judgement,

 

 

thanks

 

http://www.consumeractiongroup.co.uk/forum/legalities/86605-summary-judgements.html

[BankFodder]

Do I understand that they are relying upon your failure to dislcose in order to strike out your defence - and at the same time they have made no disclsoure themselves?

[BankFodder]

Also what were the terms of their collection agreement with you?

[Tarka2]

Bankfodder ,

 

basically yes-on their N244 its states"the defendants defence discloses no reasonable grounds for defending the claim"

 

and this is repeated in their witness statement

 

no disclosure from them!!

 

no list from them for us to disclose

 

can we now ask the judge to force full disclosure, charges etc

 

what do you mean by collection agreement?

[BankFodder]

I thought that you said that they had agreed to collect your debts

 

On our company going into voluntary liquidation (March 2006) Barclays took on collecting our debtor book, but failed to collect the debts and this in turn has left a massive shortfall on our account.

 

 

 

 

I think that you are in a good position to argue that the consent order wich you refer to was Barclays own idea. They drafted it and in order to cooperate, you signed it wihtout any quibble.

Despite it being their own order, they have reneged on it - and although you did not comply either, you find it highly unjust that they now seek to strike out your defence on the basis of non-disclosure by you - in the face of their own failure to comply with their own order.

This is all the more unjust as they are fully aware that your defence relies partly upon the lack of information which they know would be redressed were they to make full disclosure.

You shouls ask the judge to consider that in fact they have been litigating tactically and that they are anxious to avoid making any disclosure.

 

You apologise to court for not having complied wiht the order. as a lay person you had imagined that the disclsoure order operated reciprocally and so you had waited for the discovery by list to be made by Barclays and would have returned your own list immediately.

 

You should also point out that previous adjournements have been at the request of Barclays (is that right). they have not been caused by you

On the basis of CPR1 - you ask the judge to adjourn for a further 6 weeks discovery to take place wihtin 2 weeks and dislcosure in 4 with claimant's case or defendants case to be struck out in default.

 

Also tell the judge that you have now served an SAR and that you are waiting for Barclays to comply with that also.

 

Does that all work for you? I'm doing this in a hurry and you thread is fragmented and you don't say what your defence is so I may have made mistaked or not properly understood the situation.

 

Finally, you should have made your discovery. Court orders are not there to be ignored. You would get extra brownie points for soing it correctly when the other side aren't.

you should have sent the SAR ages ago.

I have the impression that you have been content to let things go silent in the hope that it would go away.

[Tarka2]

hi bankfodder ,many thanks for your input,we did not want them to collect our book debts on the contrary we wanted to collect the debts as we always had done,we raised this with them and also the liquidator but they insisted on it,and stated they would consult with us if any problems.

 

your PG 2 and 3 our points exactly,and will be stating this without fail.

How do we force them/judge for full and total disclosure of charges, bank statements etc,as we have been asking nicey nicey for account statements,figures,but obviously not forced them strongly enough. is there a form we need to complete and serve on Tuesday

 

RE CPR1 - do we just verbally ask the judge (if so how do we put that across) or is there another process

 

when you say discovery to take place within 2 weeks, what does this actually mean

 

 

yes the adjournments have been wholly down to them and an unless order was served on them also.

 

so we serve a SAR now/monday is this correct? Is there a standard form for this - where can this be found. Do we send this to both Bank and Solicitors?

 

our defence is posted up on post 17,can we add to/strengthen.we are asking them for figures/breakdown in laymens terms,could this now be put into legal and more precise wording incorporating full disclosure??

 

 

we havent been content,but i know what your getting at,we are finding it abit of a minefield to follow of what should be done when and by whome and struggled on through but hopefully we will be better informed from here on in,our pencils willbe sharper!!!

 

thanks for your help

[BankFodder]

Al the answers to your questions are on the forum including the library. You will have to start doing some serious work - reading and making notes. You have left it too long to be asking these kinds of questions at this very late stage.

 

If Barclays win this it will be mainly because of your inertia which is the way they win with most people.

 

You send the Subject Access Request to the bank but you can send a copy to the solicitors as well. Read up on it. there are templates on this forum and lots of explanantions.

 

You will have to write a reply to their application to strike out and you contain all of your arguemts in there in numbered paragraphs, cooly, politely and not too long. You can speak to it when you get into court.

 

It is vital to impress on the judge that you have not been responsible for any delays so far and that sven this time the fault is shared between you and Barlcays as both of you have failed to discover your lists.

 

It will be very helpful to you that they insisted on collecting your debts for you. this gives you the moral highground as you will be able to say that had you been allowed to keep the responsibility yourself, you would have collected the debts and have paid the money. As it is, you can say that Barclays insisted on getting the debts, then let you down and are now making you pay the ultimate price for their failure.

 

We need to kow more about the agreement to collect your debts. Was it i writing? In what form was it? What did they agree to do? Why and for what is return?

If we you could argue that they had taken on a contractual duty then you start to have an even better position. If not then negligence may be a fallback position.

 

You must write your reply and submit it on Monday. Take three copies, one for the judge, one for them and one for yourself. You must send the Subject Access Request and in fact you can alos serve a copy of it on the solicitors at court.

 

Your reply needs also to contan some outline arguments as to why you do have a reaosnable defence.

 

As for enforcing dislcosure, you must ask the judge to enforce his order. The bank - but you also have disobeyed the order of the court

[Tarka2]

Believe me bankfodder we are researching like mad,and posting questions and writing notes.We thought we were heading the right direction(if you know what i mean) failure after failure at the courts,no information forthcoming,they seemed to be stalling/being very evasive with the truth,we were also quite shocked when they suggested on the draft consent order to go to trial,as we had been advised they would not want to go to hearing and risk disclosure,but then they did instigate it,then try and revert back/strike out our defence...we are confused to say the least.

 

The bundle only arrived from the courts on Thursday,and we've been heads down ever since.SAR sorted (from libary) and will be on its way ASAP.

 

On the debt collections-we had a sales finance agreement,we would raise the invoices -pass them to barclays,who would advance a %age,then we would collect the invoices in -until liquidation, then they collected our debtor book and all related paperwork,and that was that,they took on collecting the debts . incidently,they have twice,once in the reply to our defence and again in their witness statement,falsely claimed to have always collected the monies in,and why would they allow otherwise!!! which is our agument in reverse,as they DID NOT always collect the debts..WE DID.

they are also now saying they were not under any obligation to collect the debts from the debtors.so why take it from us??? surely they have a duty to the company/creditors to collect the companys debts??

 

our reply will include again,differing figures,there lack of information,no statements,can we add more to this? ie unlawful charges,and interest accrued on those charges.

 

thanks for helping us,