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  1. I thought the Defendant's solicitors had agreed an informal 14 day extension of time and that there had been no Court Order about this. If so, hold fire, even if it theoretically runs out today. There's very little they can do in any event and they won't be able to do anything at all, until next week. A bit of a day isn't realistically long enough for me to sort everything out. I've been working on this for about 5 hours since my last post and I'm only about half way there still... I think it'll be worth the wait.
  2. As I understand it the FOS have indicated that the Broker will be repaying the whole of the PPI + the interest on the premiums + 8% and based on the figures in your first post and this equates to somewhere around 15.4K (using the very round figures of 10K PPI, + 3K interest charged (3yrs @ 10%) + 2.4K interest lost (3yrs @ 8%)). Judging by the interest rate and total cost of the interest on the PPI (over the lifetime of the loan), this is: A very expensive loan (by current secured loan rates) A loan which runs over a long time In the circumstances, I can see where both you and the FOS are coming from. I understand why you don't trust them and want a cheque... but I can also see how paying this off of your debt is likely to be a WAY better solution than spending it on anything else. ...and getting a decent whack off the capital of the loan, may help you to find an alternative cheaper source of funding. Legally, your recourse is to the Courts. The decision of the FOS does not, as I understand it, have the force of law. However, the FOS decision does seem to include most or all of what you could expect to get if you were successful in Court; and if you do get the money as a result of the complaint to the FOS, a Court would take this award into consideration when assessing your damages. Starting proceedings now, with all the risks this entails, including that it is likely to delay rather than speed receipt of the funds, seems to me like an inadvisable course of action. If it were me, I'd be on the phone to the FOS every day, asking what progress had been made, who they'd spoken to at the Brokers, what the delay was etc.
  3. Super, Dealing with the easy bits, first This was what I was talking about. It looks like a CCA application form. However, I've now noticed that the title of the image suggests that it is not connected to the current lender. Am I right? No. See my post of 30 Jan 09. I will do... and I'll try and get them to you sooner rather than later, given the time pressure you're now under. However, in the meantime, can I ask you to go back thru the whole of this thread and re-read it a couple of times. If you do, I'm sure, that you'll find that there are a number of matters which have previously been mentioned that still apply to your draft.
  4. This raises the question of whether or not the solicitor was actually retained at any point to provide you with any advice. No retainer = No solicitor/client relationship = No duty of care = No negligence. What normally happens in cases like this is that the Bank writes to the solicitor and creates a retainer to advise the prospective Guarantor in relation to the PG. The letter of instruction is clear, unambiguous and sets out both who will pay for the solicitor's services (usually the Borrower) and that the solicitor should contact the Bank if he or she is unable to act for any reason, such as the existence of a conflict of interest... and if such a letter of instruction exists, it ought to be on the solicitor's file. Clearly, what happened in your case was not what normally happens, so such a letter may or may not exist. However, even without such a letter, as a matter of principle, a retainer (and the corresponding duty of care) can be created between a solicitor and a client as a result of a course of dealing between them (even if the client is not ultimately required to pay for the services of the solicitor). That is good news and I would not presume to second guess that opinion, with the limited information available to me. ...but I do think you need to make sure that you are being given all of the information you need about any potential claim and that your current advisers are explaining what they are doing, why they are doing it and what the legal issues are. This doesn't surprise me, at all. The Lease was the substantive issue as far as the Company and their solicitors were concerned. In my view, that doesn't detract from the questions that need to be answered about the "advice" you were given. It may even add weight to them. Earlier you said: Is a copy of what you signed available to your current advisers? Why did you sign something to say you had received independent legal advice, if the Company's solicitors didn't provide you with any advice but "simply showed you where to sign the paperwork?" (Sorry, if that last question sounds a bit brusque... but it's a question you'll need to be able to answer, if the PG is put in issue.)
  5. This is a normal part of the Litigation process, and shouldn't be used to draw any inferences as to the Bank's intentions, positive or negative. I agree with x20 that there are many questions to be answered about the "independent" legal advice that you received before signing the PG. However, one thing that does not appear to have been addressed in this thread explicitly, is whether or not the solicitor actually advised to sign the PG or not to sign the PG. The reason I raise this is because ordinarily I would have expected you to have had a letter from the solicitor that you saw to confirm what happened at the meeting... and I would also expect that that letter says something to the effect of: "You have been asked to enter into a PG. We discussed its contents. I advised you that it was NOT in your interests to sign the document as it imposes liabilities on you which you would not otherwise have. You explained to me that you understood this, but that for commercial reasons you were prepared to sign the PG, notwithstanding my advice to you." In light of Barclays -v- O'Brien et al. a solicitor would have to be either a complete numpty or a legal genius, to POSITIVELY advise someone to enter into a PG... when a letter like I suggest, which advises someone NOT to enter into a PG, is pretty cast iron answer to any (potential) future allegation of negligence (arising from the nature/quality of the advice itself). That said, from what you have posted there does appear to have been a clear conflict of interests between you and the Company... and therefore if the Solicitor was acting for the Company and did know or should have known that you were NOT an officer of said Company, he or she should not have provided you with ANY advice; positive or negative. ...this is the point x20 makes here and, if I have read it correctly, the negligence x20 refers to here is not that the advice you received was wrong; but that in your circumstances no reasonably competent solicitor (acting for the Company) would have provided you with ANY advice on the PG (because of the conflict of interests). Furthermore, as a matter of professional conduct, solicitors shouldn't act in matters where there is a conflict of interests and if they do so, they are in breach of their professional rules. You should discuss this with your current solicitors. On the general issues, I think you need some formal insolvency advice from someone with the skill and time to go through your personal circumstances and provide some real help. Bankruptcy is not a crime (morally or legally speaking); and whilst its generally something to avoid if possible... the whole point of it, is to ensure that people faced with overwhelming liabilities and no real prospect of meeting them, get to "wipe the slate clean" within a realistic time frame and start again. If there is no tangible threat to your home or your profession posed by Bankruptcy (because of your individual circumstances), it may even be a preferrable solution to an IVA that lasts for many years and which, in effect, requires you to work throughout that time to pay off an unmanagable level of debt to the maximum extent possible. I cannot, of course, tell you if this applies to you. Only a professional adviser with all the relevant facts can do that... but your posts suggest that this is a possibility that may warrant consideration.
  6. Because, it's an easy get out from the Data Controller's point of view... If they argue that they have been unable to confirm a Data Subject's identity, they can argue that they are not (yet) in breach of the 40 day time limit.
  7. The 40 day time limit starts on the date the Bank received your Subject Access Request, provided you have given them the information they need to find your data and offered payment. They want you to phone them so: They can ask you what the reason for your enquiry is. They can try to get you to ask for some specific documents They can ask you for more time to comply with your request. There is no obligation on you to provide a reason for your request... all you'd be doing by telling them would be to give them on advance notice of your intentions. There is no obligation on you to narrow your request to specific documents or data. Data Controllers hate this, because it costs them a huge amount of time and money...but the DPA is quite clear, if you ask you are entitled to ALL the data they hold on you (to which a SAR relates) and they cannot refuse to provide it. There is no obligation on you to allow them an extension to the 40 day time limit. Accordingly, it is of no benefit to you to phone them. Just write them a very short letter stating the date they received your request and that you look forward to hearing from them with their full reply. If you sent the SAR recorded and have proof of delivery, you can work out the exact date their 40 days expires... and you should ask for the reply "on or before" that date in your letter. If you want to complain - Complain to the IC If you want compensation - Issue court proceedings for the breach If they are really overwhelmed and miss the deadline, they may try and say that they have insufficent evidence of your ID, to process the request. This is not a good argument because the reply they have already sent to you has not raised the point and if they truly doubted your ID they should not have written to you, in the first place. If they do raise the issue of ID, only ever send them copies of the statements they have sent you and/or data they already hold on you. Do not provide them with a copy of your signature (this is not, in any event, evidence of ID) or statements for any other accounts you may have. Both these things can come back to haunt you.
  8. My example was only intended to illustrate the point, I was making in the paragraph that preceeded it. The only reason I did not include figures for interest as separate elements was to keep the maths as simple as possible. Perhaps my point would have been clearer, if I had said I agree with you, that in the real world, the injustice of mis-sold PPI is exacerbated by the interest charged (and lost) on the premiums. However, I don't think this detracts from the tenor of my earlier post. If parties contract on a lawful basis, the Courts will, first and foremost look to provide business efficacy to their agreement. ...and it is worth bearing in mind that the overall transaction here is capable of being considered as 2 (or more separate) contracts: The contract for the loan on the Car The contract(s) for the insurances [The spectre of collateral contracts is also raised by the transaction as a whole, but I won't consider that for now.] This is important because it goes to the root of the problem potentially created by the settlement, which is, "Did the settlement compromise any potential PPI claim?"... and because it permits the Court to (if it considers it just to do so) to look at the course of dealing between the parties. I also agree with you, that Lender's often knowingly overstretch a Borrower's abilty to pay and that their usual response, benefits both them and their DCA's to the Borrowers detriment. I also completely understand and share your indignation about it. However, the Courts concern themselves only with matters of fact and law. ...and here the fact is that a settlement was reached; and objectively that settlement was of advantage to the Borrower because it (at least) released him from his (otherwise continuing) obligations under the original loan agreement and which, by law, he would have become liable for as a result of his original breach. per The Limitation issue My concern is that the primary 6 year Limitation period appears to be due to expire on a date in 2009 (but what I do not know the exact date or if it has in fact already expired). It is, I would suggest, much harder to sustain a s.32 argument in relation to a PPI claim, than it is in relation to a bank charges claim. Section .32 arguments are commonly put to and rejected by the Courts... and whilst I wouldn't discount the possibility of one being sustained in this case, why risk it? Accordingly, whilst pursuing Court proceedings may not be the best overall option, smel, may need to consider whether to issue "protective" proceedings sooner rather than later and run the FOS complaint in parallel to those proceedings... indeed without getting too far ahead of ourselves... if my analysis of the potential benefit of using the FOS is correct, smel may be advised to issue the proceedings and the FOS complaint, await the Defence in the proceedings, enter a Reply and then shortly thereafter apply to stay the proceedings pending the outcome of the FOS complaint! This, imho, is excellent advice.
  9. As a kindred spirit, I would be very grateful if you could post a link to the CAP1 policy document and or the applicable T&C's... because a person I'm helping needs to refer to them, but part of their mis-selling claim arises from the fact that they were never sent them. As you can imagine getting them out of CAP1 now is about as likely as Judy Finnigan being cast as Lara Croft in the next Tomb Raider movie... Tomb Raider: Sofa of Mogadon TIA
  10. Oh, and the Limitation clock is ticking loudly... so you may need to factor that in.
  11. From what you say, it seems clear that you were mis-sold (at least) the PPI. However, your options for pursuing this now seem to depend on the exact terms of the settlement you previously reached with GoDebt... You said: ...so there was obviously a considerable advantage to you in the settlement. What I would question is whether or not the settlement, either expressly or by action of law, constrains you from now pursuing the some or all of the PPI claim. Did either party have the benefit of legal advice when the settlement was negotiated? Was it expressly in full and final settlement? Were any proceedings issued? Was a there a formal Order or an exchange of correspondence? I think its pretty safe to say, that a Court would not (unless obliged to do so) allow you to benefit from the compromise an agreement and then benefit again (and disproportionately) by reclaiming the whole of the amount of the PPI that would have been payable if the Agreement had been fulfilled. This is probably best illustrated by an example (which ignores interest for simplicity's sake). Let's say the original loan was £4,000 and the PPI was £2,000. 1 year in, they recover the car and a little while later, you both agree to settle at £1,500. If the court were to accept your claim now and refund the whole of the PPI, the real effect would be to retrospectively impose a settlement of -£500 on the Lender. You may well think this is right, because the PPI shouldn't have been mis-sold. However, from the Lender's point of view, they would have lent you £4,000 for a year AND paid you £500 for the privilege... In my view a Court would not be likely to permit this because objectively it could not be said to give business efficacy to the parties intentions when the Agreement was entered into. Furthermore, a Court may consider that as a consequence of the settlement, you are estopped from pursuing any claim arising from the Agreement; and it is not inconceivable that an unsuccessful and estopped PPI claim could, of itself, provide the Lender with a claim in damages against you! This seems to me to be an example of where the FOS route is a much more attractive alternative to the Small Claims Court. The FOS will be primarily concerned with the mis-selling allegation and even if the Lender seeks to put the terms of the settlement in issue, I cannot see how the FOS could (within their remit) consider it when making an adjudication. For your part, you would, I imagine, maintain that in any event the settlement and the PPI are 2 completely separate issues and that the settlement was reached either expressly or impliedly on the basis that it was a settlement of the Lender's lawful claim against you; rather than a settlement of the Lender's claim to the extent that it unlawfully included mis-sold PPI and interest thereon. If, as I suggest, the FOS were ultimately to find in your favour and to an extent that was much greater than a Court would had they been called on to decide... it would be a matter for the Lender whether they sought to challenge the FOS' decision. Insofar as I am aware the FOS ajudication is binding as a matter of regulatory authority, rather than law. In other words... it ain't law but Lenders have to abide by the decisions, if they want to stay in the lending business.
  12. That has to be helpful. Business Loan Repayment Insurance BLRI Hmmmm, "Business Loan Repayment Insurance" sounds like PPI by another name, but (and I think its a pretty big but, in your case) as this was a Business to Business transaction most, if not all, of the arguments usually made in relation to the mis-selling of PPI just do not apply. In normal PPI claims, the sale is business to consumer, and the legal basis for the claims arising from mis-selling, largely (but not exclusively) depend on protections afforded to consumers. Unfortunately, these protections are not generally available to businesses. In particular, arguments as to the "fairness" of contractual terms under the various relevant bits of legislation, do not normally apply business to business. The Legislature and the Courts are/have been extremely reluctant to interfere in the capacity of businesses to contract with each other on whatever terms they see fit, unless there are over-riding policy considerations at stake i.e. to prevent crime, monopolist practices etc. Without seeing the terms of the policy, the following is a guess, but from what you have said and what is on the Bank's website, the terms of the BLRI, will probably be akin to "key man" insurance with some PPI-like elements thrown in. Accordingly, the terms of the "Business Loan Repayment Insurance" are, I suspect, subtley but materially different from those found in a typical consumer PPI Policy. If my understanding is correct; what the BLRI policy did was insure the Company against it being unable to make loan repayments due to the sickness, accident or death etc of its key men. Accordingly, despite his pivotal role within the company, as I see it, your husband never had any personal interest in either payments for or the benefits to be derived from the policy. Therefore, irrespective of the merits of your claim, you are faced with a number of difficulties arising from this including: The Company (rather than your husband) is the proper potential Claimant; The Company no longer exists. The decision whether or not to pursue litigation for and on behalf of the Company, no longer rests with its (former) officers. Even, if the Company successfully gets any money back, this repayment will need to be accounted for in the context of the Company's liquidation. Looking around the web, it appears there is some limited anecdotal evidence to suggest that people have received refunds relating to BLRI see Keith22 and ataction : however, neither of these posters seem to have been reclaiming BLRI sold to a company, but rather BLRI was sold to them personally (albeit in a business capacity, as sole traders). In the context of the wider, more troublesome issues, the fact that the contract for the BRLI, on the face of it, "ran its course" is somewhat secondary. Clearly, the BLRI, both envisaged and permitted providing cover to self-employed directors. So, from a mis-selling perspective, the value of this argument is muted. If (and, it is an if) a legal basis can be found for a claim in relation to a mis-sale to the Company, I think that your advisers will need to be looking at possibility of negligent misstatement and/or misrepresentation and/or the uberrimae fidei angle... However, it occurs to me, that even if the facts tend to support such a claim, there may be other problems to overcome including: That the the Terms of the BLRI Policy are likely to include an "entire understanding" clause which (seeks to) effectively preclude claims based on everything but the most outrageous (e.g. fraudulent) pre-contractual statements and or That the Company's claim appears to already be statute barred under the Limitation Act - and I have doubts that, by virtue of its dissolution, it is open to the Company to put forward the s.32 arguments normally advanced to counter this. That the costs of establishing a valid claim, resurrecting the Company and pursuing the litigation are such the cost/risk/benefit analysis of the potential Litigation does not stack up. This factor seems particularly acute, when one considers that it will not be carried out by you, with reference to potential benefit to you... but rather by those empowered to conduct Litigation on behalf of the dissolved Company, by reference to the potential benefit to the (dissolved) company and its Creditors. Any claim instituted by a formerly dissolved, insolvent is likely to be met by a raft of procedural and financial hurdles, which would need to be overcome before the claim could proceed to trial including a Security for Costs application by the Defendant I don't doubt it... and I bet when you add up the cost of the premium(s) + the interest on them... its an awful lot of money. I wish I could be more positive, but I think it would be wrong of me to simply put these concerns aside and raise your hopes. This matter needs to be considered by your advisers, even if ultimately it is not pursued, for the same reason I mentioned in relation to a potential bank charges claim in my earlier post. I would also want them to exhaust the non-litigous avenues for complaint e.g. the Bank themselves and the FOS; because even though there are clearly major hurdles in seeking legal redress, it is equally clear that morally speaking your husband was mis-sold a product that contributed in no small way to the collapse of the business.
  13. No. Car's explanation is correct. The rule states: 15.4 (1) The general rule is that the period for filing a defence is – (a) 14 days after service of the particulars of claim; or (b) if the defendant files an acknowledgment of service under Part 10, 28 days after service of the particulars of claim. The point I was trying to make is that when the claim was issued the Court will have determined a deemed date of service; whereas the Defendant's Acknowledgement of Service will state the actual date of service... which may be different from the deemed date... and given the terms of 15.4(1) b... it is this actual date that you need to take the 28 days from.
  14. Planning ahead is always a good idea... but you don't need to be worrying about Court bundles yet. Any trial date is a long way off. Lots of people have been to Court; but PPI claims are, by their very nature a different kettle of coconuts from the easy win, bank charges claims of a couple of years ago. Every PPI claim will turn on its own facts. Therefore, the onus on the Claimant to plead the law (that is relevant to their particular claim) correctly and susequently meet the evidential burden of proof on the facts, is not inconsiderable. There is very little worthwhile you can do whilst waiting for a Defence, other that check, double check and triple check what the last date for filling the Defence is... that way you'll be waiting at the door of the Court with your, perfectly prepared, request for Judgment in Default at 9.50am (Court offices open at 10.00am), the very next day. Whatever, you do DON'T remind them that they only have x more days to enter their Defence. (either in person, in writing or by advertising the fact here...) Keep quiet, do your research and otherwise engage in masterly inactivity. When they file their Defence... post a link to it here... having removed/ obscured/modified any of the personal info in it, the name of the Court and the dates of in the pleadings and anything else that would make it easy to work out from the Document... who you are. Discussing your litigation strategy in public (with the potential of it being monitored by the other side) is recipe for disaster... and don't forget the Bank will know exactly what they put in their Defence.
  15. Time limits for filing a Defence: CPR 15.4 14 days from the date of (deemed) Service of the Proceedings; unless they enter an Acknowledgement of Service, then its 28 days and runs from the date of (actual) Service of the Proceedings as per the Acknowledgement.
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