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MOSS 41

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  1. hi-sorry im not being clear enough , claim 1 JCF v both of us for our ltd company xx ltd- seperate cases each have their own reference claim 2 JCF v just my husband his ltd company yy ltd claim 1 progressing as normal against both of us claim 2 was progressing now they go for a summary judgment against him, due to poor defence. i can easily provided evidence to dismiss it, prove valid defence but how do i stop them getting awarded costs, for bringing the action based on my poor defence
  2. no one claim JCF v guarantors defendant 1 and 2- trial 5 march one claim JCF v guarantor defendent 1-applied for summary judgement as defence laid out poorly same claimant but against two companies (the guarantors of) same loan agreements and everything, defences are the same
  3. and if i pay for application to submit amended defence 1) do i have time 2)what reasons can i write in application that judge will be happy with for putting in amended defence? shall i also ask for an unless order to provide the Deed of Guarantee and Indemnity- can this both happen in the same application ? so i only have to pay once?
  4. the claimant is pursuing us inder two companies - exact same documents/ loans same claimant two court cases, my thread has never been seperated into two. large claim done the witness st, awaiting trial etc smaller claim after directions they put in an application for summary judgement because i didnt do my normal war and peace defence doc. mediator i had handling it just typed four lines i know its insufficient , but i also know from barrister advice we have strong defence and are likely to win so just want this summary judgement dismissed without being charged for their costs for bringing it as my defence was short. then i can go back to defending it like normal
  5. back to my summary judgment issue, i am about to draft a better witness statement to object , with evidence, solicitor when i asked advice says put all evidence with witness statement, and submit also an amended defence as an exhibit, -hopefully claimant will back off and withdraw application- (so should i send my witness st now, instead of waiting until 7 days before ?) but they could legitimately argue that their costs to date should be paid on the application was justified given the defence did not set out a proper legal defence? the defence (not done my me which is why it is crap) is just 4 lines : 1)i contest the validity of the personal guarantee the claimant seeks to rely on They say this is to vague to constitute a defence They say guarantee is included in loan agreement, and 'on the face of it' correctly executed no other complaint has been made (ive written several letters complaining and can evidence) a) the loan agreement is only signed for and on behalf of ltd company- i can point this out) b)i have an email from them of the offer of terms, listing amoungst things required a deed of guarantee and indemnty, they havent provided me with one, as none was ever done , but clear evidence that the required guarantee would be in this deed not in any loan agreement . there werent justifed to bring this application for summary as they knew a DOGI is the guarantee as they wrote the email that DOGI was required from us. 2)i have made several submissions to the claimant to request my account information, in a view to obtain clarity on the above issue. To date the claimant has failed to provide a copy of their personal guarantee which they seek to rely on. they say there is no personal guarantee document- as per email they wrote there is supposed to be a DOGI- the personal guarantee they rely on is in the loan agreement- its only signed by company they say they provided all documents in letter dated 2 july - they didnt , no DOGI supplied this is no purported defence a)i can clearly demonstrate DOGI asked for by letters b)i can show loan agreement signed on behalf of company c)its not a defence, but its evidence my defence is embarressed because they failed to respinf to preaction protocol document requests and letter requests for this DOGI, how can i write a defence without seeing the document, they know should exist. 3)There are material concerns in respect of the intial loan agreement and they way this was handled by the claimant, its my intentions to raise this with court so i am fully aware of legal remedies available to me. they say unparticularised and vague to constitute any ground of defence at law. as such the claimant cannot know what it faces at trail the defence is embarressed and cannot stand a)yes vague , but they havent provided a DOGI , we havent reached witness st stage , which is where we explain why and with what evidence, we as defendants are not supposed to form legal opinion, before or during witness statement stage, thats all for skeletal arguement and court. they back dated deed of debenture they havent done a DOGI, or cant provide both conditions precedent of the loan and its execution they let my wife remove secured charge over company- evidence written and phonecall, without my consent materially changing any level of risk for alleged guarantor let my wife organise payment plan, without my consent signed off on revision memorandum. 4)dropping this point anyways so what im asking how can i write witness statement with above evidence, witout them being awarded costs for bringing application due to the bad defence? they know a DOGI required, so when i say i contest validity of personal guarantee, its true, just brief they say guarantee on "face of it" correctly executed. they know its only signed by limited company they know complaints have been made, they are aware of what we required and why we said it wasnt valid. they know there is a personal guarantee document outside loan agreement- email proves it, they havent supplied it etc etc .....
  6. yes theirs was a mess- wrong court reference on page ,, long lists of items relating to another court case on behalf of a company , didnt say who filled it out and why they were suitable didnt even disclose the loan agreements on which they rely they disclosed a loan agreement dated 11 november 2019-doesnt exist (instead of 11 June 2019) didnt disclose my loan agreement dated 17th June 2019 havent disclosed a loan offer for dean
  7. yes my draft witness statements are kind of done , but before the barrister signed off (he was checking these for me ) he said get a solicitor to write them , i see 'holes' in yours. so im confused , i took days getting them perfect to lead into the case law we need to discuss at trial. getting all evidence in folders etc yes attended hearing, honestly i know theres a pandemic but , my case has been booked in break neck speed, even quicker than proposed directions served early on. my dilemma is- i can write my husbands with a heavily based undue influence -and etridge principles. as i did all the application-(i can evidence this _ my husband knows this he hates paperwork, the whole point is they should have got certified legal advice as he is not commercially connected according to para 49 of etridge case law) however this cost me a barrister , and do i need it-? he hasnt signed anything personally, just concentrate on that? disclosures done directions - as per the order of the court ? so his statement is basically - i never agreed to give a guarantee, i havnet signed anything personally , statute of frauds s4 and Elpis v Maritime- only signed as capacity of director , no prior oral or written agreement either -slam dunk mine focuses all on the language and timing of agreements and my intentions when signing , plus all parties of a tripartite agreement didnt sign a condition precedent for execution of the contract as a whole.
  8. Hearing date 5 March 10am Witness statements to be exchanged 28/1 so next Thursday , but they don’t accept service by email - well they have been , but wanted to send Tuesday by post anyways 7 days before hearing claimant to lodge bundle at court 7 days before hearing parties to notify court of realistic estimate for hearing - by email doesnt say anything about skeletal arguments etc
  9. thanks for your kind words , its the procedural stuff i worry about technical stuff that can affect outcomes because of my inexperience skeleton arguments, to be done cost schedules informing court how long i think it will take etc. for instance their solicitor has asked for some emails between me and my loan broker - well after disclosure. i havent disclosed these ( they are privileged) and i have written them in the privileged box - only three emails anyway but should i just provide to him as i actually want to present in court myself , and letting them have them actually discloses them so they become admissable or ignore? also costs- mine arent too high but what is fast track going to cost me in a situation where i lose. i know court fees capped at 1650 but what if their solicitor bill is 20k- i have managed to include all the way through their failings of pre action haste to litigation letters offers to settle subject to costs- i would nt feel so bad if all i was fighting was the court claim amount.
  10. hi im having a nightmare, barrister just quit said conflict of interest if use argument of undue influence on my husband its not actually a point im going to use in witness statements, but he says he knows about it so cant act. i have days to get these witness st in and i feel abandoned. he says his advice still stands, we have a strong case im scared to do fast track court on my own. i have seen copies of internal emails between claimant and his solicitor- they rely on the loan offer and loan agreement being considered together as one contract. (they are sent and signed seperately at different times, but want to append offer to form 'part of' loan) .- but also quite tellingly ask each other 'is there any other agreements with their personal signatures on?' we are arguing - loan agreement signed 'on behalf of limited company' no statute of frauds , lots of case law etc. relying on construction of contracts and interpretation case law too in full barrister advice and legal defence my husband never signed a loan offer, condition precedent which they want to append to a loan agreement signed only on behalf of company its easier to argue his case. i have signed the loan offer 11 june (proved by certificate of completion), i have email where they nagged me to sign immediately or they will delay funds-email evidence to go in bundle then they sent loan agreement for me to sign on behalf of company a day later 12 June-(docusign evidence provided but not actual loan agreement) - ididnt sign until the 17th which contained information and definitions i required to understand the loan offer, i never intended any signature on a loan offer to apply to a loan agreement i hadnt been sent or seen. this would lead to an unconscionable result due to their pressure and coercian you've seen the loan offer and agreement above, what do you think i am need of moral support today to see if i can manage this on my own. TIA
  11. Ok - when I ask for statement it puts it back in complaints dept - and they leave me alone for about 6 weeks at a time , then the cycle starts again but at least they don’t ring or write
  12. I have found the old thread - I’ll post any more comments there - it’s unregulated business credit card , not on personal credit file - original creditor capital on tap sold to Capquest, may last year , not been chasing it much as I keep asking for a statement and they don’t supply , now this excel list of transactions , with no details just got to dig up the old thread
  13. Capquest - been ignoring for ages as refuses to supply signed docs and statement of account finally supplied a list of transaction they say is from original creditor , but just an excel list of 29 transactions , no title , no account number , no headings literally just a list of numbers on a Capquest paper - with Capquest small print in the footer . obviously , I can see there is nothing to tie this list of numbers to me - im looking for a good paragraph to send back like * Thanks for a list of numbers you have typed with no references , titles, account numbers or anything to show this is an original creditors statement , this is not my statement , and has not been provided by the creditor on creditor paperwork I j the format of a statement - please provide as required the original statement as required by .......... can you help ? 18-01-2021, 19:33 Office Lens.pdf
  14. Thanks , will do , I understand mitigating of losses is a general rule rather than law , and they are being unreasonable in refusing to mitigate their loss by collecting assets - and l would defend the whole amount claimed on this basis , and fact their delay has lessened value of assets etc - they would run up more than the claim amount in solicitor fees if they take this to court and don’t collect assets , as it’s small claims and costs can’t be awarded
  15. Hi- as above , asset finance company have sent a pre action pack for £1810 for a personal guarantee on an asset , they refuse to collect , which would pay the debt twice over dry ager meat cabinets I can’t sell them I don’t Own them , they refuse to answer SAR and they refuse to collect (told me in phone call they won’t collect) - it’s been a year aswell , so assets have depreciated while they have sat in the same empty shop they delivered them too . They are still there . how do I approach this , they have a duty to collect and duty to mitigate losses before starting court action - but what is the legal narrative on this ? Just defend and tell the court (if it gets that far) they refuse to collect I don’t owe the debt - the asset can clear it and provide evidence of values of items - valued £2000 each and there are two - so could sell £4000 , take away fees etc would still clear debt any ideas ?
  16. yes , it is arguable according to my barrister, as being a tripartite agreement an expectation or pre condition that all parties to sign, so non signature of one means no liability to another, Harvey v Dunbar (if party sign on the representation party B will also sign, signatures of all are a essential precondition for liability) his points also are -definitely no guarantee for my husband at all under legislation the claimant provided no fully signed loan agreement for me not via SAR or CPR 31.14 or on the N265 so actually they have provided nothing in writing that i have signed that describes a guarantee under the legislation- just an offer letter for me (i was supposed to recieve one to sign pursuant/following to the loan offer, they provided a certificate of completion, so one existed, but they havent provided or disclosed it to court) and my husband does not have actual or ostensible right to sign on my behalf a loan agreement they want to take my offer letter join it to his loan agreement (he didnt even sign) when actually all parties were required to do both parts each it really all boils down to whether they have an enforceable one against me - but as per the bioconstruct case · Bioconstruct GmbH v Winspear and another [2020] EWHC 7 (QB) (the “Bioconstruct case”) confirms that it is not safe for lenders to rely on signed signature pages that have been appended. If the signature given is not intended to apply to another document, (how can it if the other document hasnt been provided when you were pressured to sign an offer letter 6 days before seeing the loan agreement - i have email proof) then that signature wont be applied to another document then back to statute of frauds 1677, no personal guarantee as not loan agreement not signed in a personal capacity Also my barrister says, you are only signing offer letter that you WILL enter in (future tense) making the loan agreement a condition subsequent
  17. loan to redact for butchers.pdf hopefully redacted properly loan offer signed by me - ive redacted it (but finger drawn on device) loan agreement apparently signed by husband, but IP address scotland, near their offices in scotland typed in his name (he doesnt recall doing it at all) but only signed on behalf of company anyways we have dealt with this company before for exact same product (as per the execution in the loan offer) we had to do a debenture and deed of guarantee and indemnity (that policy paid off and gone). we said no guarantees or debentures, broker says dont worry you wont need to do that ive negotiated that out. so we didnt do a DOGI or debenture, assuming we were safe in not giving any guarantee plus not signing loan agreement personally - and this contract was confirmed in writing by claimant to be a standard non negotiated document they give to all people
  18. yes they werent attached , as it was done money claims online i just got two sheets-front of claim for which amount is wrong and back page the particulars will this have any relevance? that it wasnt served with claim? they have copies of the loan agreement, but they werent served with particulars
  19. particulars say 'there have been breaches of the loan agreement which entitles the claimant to pursue the defendants under the terms of the personal guarantee to the loan'
  20. Interesting it’s because on the signed offer letter - all three names listed in parties to contract party 1) Ltd company party 2 )Mr xxxxx(guarantor) party 3)Mrs xxxxx-(guarantor) but this offer letter does not describe any guarantee or an indemnity - at all doesn’t provide any narrative on one , and the use of word guarantor doesn’t make you one - obligations and expectations need to be listed as terms and agreed -also it lists a required document to be executed a deed of guarantee and indemnity wet signed and returned - which was not provided or done by us he takes the three names to mean tripartite , in that if your listed - all are required to sign , I believe I agree personal guarantees normally given separately , so I asked claimant on what do they rely for a personal guarantee - where is this listed deed of guarantee and indemnity they say they don’t need one guarantee is included in the subsequent loan agreement there are terms of guarantee included in this subsequent loan agreement however , this subsequent loan agreement isn’t signed personally - only ‘on behalf of company’ so isn’t a personal guarantee under s4 of statute of frauds 1677 , nor is their a prior oral or promissory agreement to get around this legislation it is confusing , I agree , but it clearly been shown to me by legal professionals not to be a guarantee , but the claimant , does not budge , doesn’t negotiate , doesn’t entertain settlement offers after being informed of all of this - so you start questioning yourself - why are they so confident , or is it because they just think nothing to lose , doesn’t cost us anything to see it through to court ?
  21. Thats just the name of the legislation statute of frauds 1677 section 4 precisely -guarantee must be in writing and signed
  22. Thanks, I have my barrister reducing it to relevant points hopefully this week. Quick question - court case is against me and my husband, they cannot and haven't provided a signed copy of a personal guarantee for him, not through CPR 31.14, SAR or Disclosure- so no personal guarantee for him under statute of frauds as confirmed by my barrister, so it all falls on whether one exists for me but as claim is xxxxplc (claimant) v Mrs xxxxxxxxx Mr xxxxxxxx (defendants) can we ask for claim to be struck out unless document provided - meaning they would have to start again, against me personally as this claim is its current format cant continue against both of us. The can only issue a claim against me, or is it irrelevant? Court will find no guarantee for husband, and just adjudicate on my position. One of my barrister points is that the agreement is tripartite and all parties are expected to sign, and his signature is missing, invalidating whole contract (non execution) i know it seems silly to push it back, but as we are so close to court (dont know where these long waits are reported, my fast track case went though at break neck speed to trial), but because its close to date, they just wont negotiate at all. Pushing things way back. means they will have to negotiate to get anywhere. thanks
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