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Everything posted by skeptic

  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.
  16. All the good stuff on the ICO is in the "guidance" sections and particularly here Legal Advice When asked to consider the proper meaning of "relevant filing system", the Court of Appeal held that manual records are covered by the Data Protection Act 1998 "only if they are of sufficient sophistication to provide the same or similar ready accessibility as a computerised filing system" (Durant v Financial Services Authority CA 2003 on 8th December 2003). Durant is, I believe, still the leading case on the point and a full discussion of its impact is here. Is this verbatim? Is so, you must be entitled to say that it is irrelevant how the majority of the contracts are held, since the DPA relates to personal data... therefore the only issue is how your data i.e. contract is held. Indeed, their statement appears to be an admission that some of the contracts are held in relevant filing systems...
  17. It would be a really uphill battle: as being past the 15 year long stop is legally problematic and evidentially a nightmare: but the fine workings of the Limitation Act are such that it may not be impossible. For an example of the principle that an otherwise long statute barred claim may be actionable because of s.32: see COTTRELL v. LOCK & Others [1997] EWCA Civ 1787. (even though on the facts, Mrs. Cotterell apeal was dismissed). For a digestable summary of Limitation principles : see "Limitation of Actions"
  18. I agree with most of what Pompey says, but in my view: a CCA request is likely to be rejected on the basis that the Loan Agreement came to an end on the death of the borrower. an SAR is also likely to be rejected because Data Protection Act 1998 does not apply to requests for personal information relating to deceased individuals. (Similar sorts of requests may be made for deceased persons under Freedom of Information Act 2000 provided the holder of the info is a Public Body... but unfortunately this is not helpful in relation to PPI records held by a Company.) However, this seems to me something of a side issue, because generally speaking, you cannot inherit a deceased person's debts. Credit card debt is almost always unsecured and personal to the borrower. So, in the unlikely event, that the Estate is insolvent, all that would happen is these debts would go unpaid, i.e. the "debt" would be written off. Your friend's Mum's husband would only realistically be at risk of having to sell the house, if the debt related to one secured on the property or an unpaid tax liability and that is not the case here. Insofar as a potential PPI claim is concerned: It may be open to the PR's of the Estate to commence proceedings to recover any missold PPI premiums. However, such a claim would, at least, present evidential problems, because the PR's will find it difficult to obtain the information that they need to pursue the claim and the person to whom the PPI was sold is no longer able to give evidence about the circumstances of it... and the PR's are under a duty to the Estate and the Residuary Beneficiaries to protect the assets of the Estate, so it may ultimately come down to a question of finances, rather than legal principle. In other words, can the PR's justify spending £2,000 reclaiming £1,000 of missold PPI? Furthermore, the PR's authority to act derives from the Grant of Representation... so they would have to wait some where between 6 to 12 months from the date of death for the Grant of Representation before they would be able to do issue any proceedings. The FOS may or may not be prepared to consider complaints in relation to the affairs of deceased people and they may or may not require a Grant of Representation. Your best bet is probably to phone them and ask. That said, in my view, it is probably worth corresponding with the Bank and then (inevitably) pursuing the complaint to at least the FOS (if they will hear it) or the point of issuing proceedings, because the Bank KNEW how old your mother's friend was and also KNEW that the PPI was useless to her once she reached the age of 65, yet they continued to charge the premiums to her account... and none of these matters relies on the (absent) evidence of the borrower.
  19. The FLA is not independent and cannot award compensation. In skeptical world, we can't see how complaining to the FLA is worthwhile. We think conciliation only benefits the wrongdoer and tends to waste the time, effort and resolve of the wronged. We also think it put the wrongdoer on notice of the arguments that might be better present to a Court or the FOS. In skeptical world, we note the use of the word monitor and how that is something different from enforce or regulate. We also question how a complaint can be bought to a satisfactory conclusion, if the body hearing the complaint cannot award compensation or make a decision. In skeptical world, we ask rhetorically, if you were a fox would you complain to the Master of the Hunt about the behaviour of his hounds?
  20. Wanda, I've read the whole of Personal Guarantees for Business Debt. I was sorry to read that you have found yourself in such difficult circumstances, through no fault of your own... Sometimes, it is hard to see anything but an overwhelming gloom when faced with these sorts of problems, but whatever happens, in the grand scheme of things, this is only an argument about money. That might sound unbelievably trite and crass, at the moment... but it is true. Being happy, has nothing to do with being rich or poor. I know. I was pleased to see that you now have the benefit of some independent legal advice. This really is your best course of action, at the moment. The PG's for Business Debt thread, obviously, raises serious issues; but, I think, it'll be better for us to keep this thread as focussed on the potential PPI claim as possible. Like you say you have a lot of things to think about at the moment. So, focusing on the PPI issues: What we know: The PPI was mis-sold because your husband was told by the Bank that he would not get the loan unless he bought the PPI and/or because he was self-employed at the time. The PPI policy was bought in 2000. The PPI premium(s) were paid from the Co's business account. The PPI claim is a separate legal issue which turns on its own merits and exists, I'd suggest, outside the scope of the triable issues in any litigation connected with the Personal Guarantees. That said, because your Husband is potentially the Claimant in the PPI claim (but perhaps not any bank charges claim) and the Bank are the Defendant. The PPI claim therefore represents a very significant element of the issues between you and the Bank, and at the very least a significant "chip" in the bargaining process. Accordingly, your advisers, should be pursuing this aspect. Any Bank Charges claim is a separate legal issue which turns on its own merits but it exists, I'd suggest, within the scope of the triable issues in any litigation connected with the Personal Guarantees. This is complicated, but as I see it the (dissolved) Company is (or would be) the correct Claimant in respect of any Bank Charges claim... Therefore, an such claim goes directly to the proper level of the Company's indebtedness to the Bank and thus the extent of your potential liability under the Personal Guarantees. [However, since the Company has been dissolved, it would need to be resurrected before it could be a party to any claim... and I am not sure to what extent, if any, therefore such an argument advances your position.] What I suspect, but need you to confirm: There are, at least, 3 different "business loans" in your story. The loan in 2000 which was the one with the PPI policy attached taken out by your husband and I shall refer to it as the "Startup Loan" to distinguish it from the others. The 2 other loans were loans to the Company, the 1st in 2005 & the 2nd in 2007 and it is these loans which gave rise to the Personal Guarantees. The PPI policy insured your husband (not the company) and he was (one of) the borrowers of the Start up Loan; The Startup Loan was lent on the basis that the monies would be used to fund the (then newly formed) Co. and therefore and ONLY as a matter of expediency, the Bank paid the balance of the loan funds into the Co's business account. The Startup Loan was treated as "capital introduced" by the Director's in the Co's accounts. What we don't know (yet, and for certain): Which legal entity bought the PPI Which legal entity was insured by the PPI policy What the terms of the PPI policy were What the cost of the PPI premium(s) was (and what interest was charged on those premiums) When the "Startup Loan" was repaid (although presumably it was somewhere near the time of the 2005 loan). If I have anything helpful to add to the situation with the PG's, I'll post it in that thread.
  21. 1st Principle: The Ltd Co. is a separate legal entity, from the people involved in running it. 2nd Principle: The Officers of the Company i.e. the Directors and the Co. Secretary, have legal duties to fulfil when running the Company, these included duties to the Company itself, duties to each other, duties to the shareholders and general duties imposed by law to the protect the public e.g. not to permit the Co. to trade fraudulently etc. Was AN Other a Officer of the Company and/or a shareholder? Were you an Officer of the Company and/or a shareholder? If this is correct, the PPI was missold. PPI should always be optional. Furthermore, loans ought not be made contingent on the sale of PPI. If your husband was expressly told that he would not get the loan UNLESS he bought the PPI, there may be grounds to attack the loan; aswell as seek to reclaim the costs of the mis-sold PPI. OK, was the "business loan" a loan made to the Limited Company or a loan made to your Husband (which he subsequently used to fund the Limited Company) or a loan made jointly to your Husband and AN Other (which they subsequently used to fund the Limited Company) If the answer is 1) then this is where Dorothy leaves Kansas and things get a bit weird. Unless the T&C's of the PPI policy are manifestly different from the norm, the policy couldn't possibly be of any use to the Limited Company. Rhetorically, how exactly does a Co. insure itself against sickness, loss of employment etc? If the answer is 2) then the whole issue of the Limited Co is only of peripheral significance. Here, your husband was mis-sold a PPI policy, he is the potential Claimant and he is free to pursue a claim, if he wishes. If the answer is 3) then presumably 2 different PPI policies existed: 1 for your husband and 1 for AN Other. Here, both were individually mis-sold a PPI policy, each is the potential Claimant and each is free to pursue a claim, if he wishes. This is/was largely an accounting issue for the Co. The only legal significance which I can see may attach to this relates to what should happen to the funds which result from any PPI claim... this is getting way ahead of ourselves, but if the Ltd Co paid the premiums on behalf of your husband (because he was a Director of the Co.) there is a possibility that the Ltd Co. itself might have some claim over any refunded money. Sorry, to skim over this point, but this area is potentially wildly complicated and I don't want to go to far into something that may be irrelevant. Furthermore, since the Co. is now in liquidation, in practice (rather than in law) the only entities potentially interested/affected by this would be AN Other and the Tax Man... and both would probably need to resurrect the Co. to do anything about it. It is quite normal for a Director of the Ltd Co. to be self-employed and drawing a "salary" does not, of itself, necessarily render a Director an employee of the Co. Your husband's employment status should be clear (and provable) from his tax affairs. I am somewhat confused by this statement, as it appears to be inconsistent with other parts of your post(s). If the business was voluntarily wound up by your husband; this would have been a Members' voluntary liquidation - which is when the shareholders of a company decide to put it into liquidation and there are enough assets to pay all the debts of the company, i.e. the company is solvent. Ordinarily, companies are subject to a Members' voluntary liquidation, because they are insufficiently profitable, but not insolvent. However, it appears that the Borrower(s) did not or could not repay the Bank in full otherwise the spectre of the Personal Guarantees would not have been raised now. Was AN Other still involved with Co. when it was wound up? Is there any litigation ongoing or pending as a result of the Co. being wound up? Are all the financial matters relating to the Winding Up now resolved? Is the Tax Man happy? There is nothing foolish about giving Personal Guarantees, if you understood the consequences of doing so at the time you gave them. So, don't feel bad about this. The cold, hard truth is that Banks won't lend money to start up companies, without personal guarantees, to secure the loans. I am not clear on what is still owed to the Bank and by whom. (Your 1st post suggests the loan was repaid, as does the Members' Voluntary Liquidation... but then there would be nothing for the Bank to call upon from the guarantees.) How much, roughly, is owed to the Bank? Is your home at risk? Depending on your involvement with the Co. and the extent of the guarantees, there may be legal issues arising from whether you (personally) should have been asked to guarantee the Co's debts or the manner in which they were given. Have you (and or your husband) had any formal legal advice, at any point in this venture? If the PPI was mis-sold, the Claimant is entitled to, at least, a refund of the premiums (and any interest charged on those premiums). What happens to the refunded money is up to the Claimant. So, yes, broadly you could off-set it against any liabilty to the bank... but this may not be the best way to deal with things. The accout charges are a separate matter... but the principle is the same. Your circumstances appear to raise many issues, some of them sufficiently outside the norm, that ultimately you may need to get some formal, independent legal advice. I know I've asked more questions than I've answered but I think answering them will be worthwhile. No problem.
  22. A couple of quick observations that no-one else has made (or if they did I missed 'em) It looks like you had a WHOLE bunch of different PPI policies from different Credit Card providers. Some PPI policies cover your debt (rather than just the individual CC, that sold you the policy), so you need to check the terms of the policies to see, if you were double insured i.e. insured by more than one policy for the same thing. If you can establish that you already had insurance in place that covered the debt, this is good evidence that the subsequent policies were mis-sold. No CCA in response to an SAR is normally greeted as really good news by Caggers... because either: They don't actually have a CCA - and the alleged debt is unenforceable They do have a CCA - but by not sending it they have breached the DPA.
  23. I am not clear whether your question refers to: a business that you were involved which is no longer trading OR a business that provided the PPI is no longer trading But, assuming, the first of these possibilities is the relevant one. PPI is normally sold to individuals, not businesses. If you think about what PPI is, it would be pretty unusual for it to be sold to anything other than a person (and whilst I wouldn't be flabbergasted if you said the Policy was sold to a Company on a business loan... this would be very, very unusual and would raise a lot of questions). On that basis, I think, it is more likely the PPI was sold to a person connected with the business (rather than business itself). The 1st issue here is to make sure that the correct legal entity is (still) in a position to commence legal proceedings and is the one that brings the claim. If the PPI was sold to you, in connection with a Loan to your business, you (not the business) were the person to whom the duty not to mis-sell is owed. (and it is irrelevant, whether or not the business is still trading). If the PPI was sold to the business... We need to know whether the business was: A limited Company A partnership or A sole trader and what caused it to cease trading?... e.g. if it was a Company, was it dissolved or did it go into Liquidation? before we can answer the question helpfully. It might be easier, if you could provide a summary of the facts giving rise to the potential claim, (without disclosing anything that identifies you as an individual), so that we can try to narrow down and identify the issues.
  24. It may also be worth posting the part of the T&C which provides them with the power to vary your interest rates.
  25. Did they, now. That might not have been their best course of action... Nash & Ors v Paragon Finance Plc [2001] EWCA Civ 1466 (15 October 2001) "I would hold that there were terms to be implied in both agreements that the rates of interest would not be set dishonestly, for an improper purpose, capriciously or arbitrarily. I have no doubt that such an implied term is necessary in order to give effect to the reasonable expectations of the parties." per Dyson LJ @ para 36 [following Leggatt LJ in The Product Star, who held that where A and B contract with each other to confer a discretion on A, the discretion must be exercised honestly and in good faith, and not "arbitrarily, capriciously or unreasonably".] Dyson LJ goes on to add to this by stating that a "Wednesbury"-type unreasonableness term can also be implied... but this technical argument is complicated and probably irrelevant to you. Simply put, if a Lender exercises his contractual power to vary interest rates, dishonestly, for an improper purpose, capriciously or arbitrarily, he will be in breach of an implied term of the agreement and liable to the Borrower for damages. If the cancellation of your PPI or the making of a complaint relating to it, co-incide very closely in time with them raising your interest rates, I would be considering whether the Court could be persuaded to infer that they increased your interest rate to penalise you for exercising your lawful right and that it was therefore either dishonest, for an improper purpose, capricious or arbitrary. (Particularly, as now, interest rates have been falling steadily for a while to the current all time low.) Knowing the legal position is one thing. Proving this, in practice, quite another. (Although finding other people, perhaps thru a consumer based web-site, who the Lender has done this too in similar or identical circumstances and who would be prepared to sign a Witness Statement to that effect, wouldn't do you any harm). At the moment, I'd recommend you keep this card up your sleeve for the time being... certainly until after you get the money from the Brokers and the PPI reclaim is settled... and bear in mind that: Your Loan is not a CCA regulated agreement, therefore you do not benefit from the protection of the CCA Your Loan is for a suffiently large amount of money that you ought to get yourself some formal Legal advice before taking any steps connected with it.
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