Business Account -chasing Me For Guarantee

[slick132]

Hi Dhoom,

 

If it's decided the Ltd Co should reclaim the penalty chgs to reduce the overall debt to the bank, is this something you could do (ie do you have the authority as, say, a director).

 

Do you know the lenth of time over which the interest is calculated.

[dhoom]

I am in a position to reclaim the charges if I want to but they will probably pay this into the account anyway and won't make any differene to me.

 

Although the OD limit was say 25k they let it run to about 65k and the excess charges and penalties would be circa 20K.

[slick132]

Dhoom,

 

Re my last Q to you, am I right in assuming they bank is charging int't on £35K of the o/d which built up during and since 2006.

 

Obviously, any charges reclaimed would serve only to reduce the overall debt to Barclays. However, it may impact on the interest they are claiming from you.

[dhoom]

Sorry for the delayed reply.

 

They are only claiming interest on the guaranteed amount, they are obviously charging the company interest on the entire current borrowing which is more than the guaranteed amount.

[slick132]

Thanks Dhoom,

 

Please confirm the date by which you must lodge your Defence, so we can help with it if poss.

[steven4064]

Hi dhoom

 

Slick has asked a couple of us to help with the defence. Would it be possible for you to post the bank's Particulars of Claim (personal details removed, of course)

[dhoom]

Steven

 

POC as per post no.18

 

defence in by 11 April

 

thanks

[steven4064]

Sorry, I missed that - short and sweet

 

Going back to post #27, although on paper any charges reclaimed would go into the account and not hep you, there is an additional point - your claim would be that the charges were unlawful (ie they were penalty charges much greater than any loss suffered by the bank as a consequence of the breach that attracted the charges). If you counter claim for the charges that actually causes them a real problem because the next step is for the court to order full disclosure and that would mean the bank having to reveal their cost base in court, something they have absolutely refused to do so far. I think a counter claim might have some interesting results

 

Attack is the best form of defence

[dhoom]

 

Attack is the best form of defence

 

Thanks for looking in and yes I agree with you.

 

I have repeatedly asked them to give me a breakdown of their claim, but they have refused. All they keep on saying is for me to look at the companys bank statement.

[steven4064]

I think your best bet is a combined defence and counterclaim: defence based on the fact that figures are wrong because of bank charges and a counterclaim for those charges to be returned. Because of the values here, the case will be multitrack and hence the court can and will order full disclosure. That should cause the bank to think long and hard before proceeding. One thing is sure, they will not be prepared to reveal their costs in court. They will have to find some way around that - they may even drop the case.

 

If they do, you will still be able to continue with the charges claim and, although you personally will not get the money, it will reduce the company's debt.

[steven4064]

Here is an outline defence and counter claim

IN THE XXXXXXX COUNTY COURT CLAIM No: XXXXXX

 

 

BETWEEN

 

BARCLAYS BANK PLC CLAIMANT

 

AND

 

 

DHOOM DEFENDANT

 

 

----------------------------

 

DEFENCE AND COUNTERCLAIM

 

-----------------------------

 

 

Background

 

1. XXXXXX limited had an a/c no.22222222 sort code 123456 formally account no.123456787 code 123456 ("the Account") with the Claimant from date or thereabouts until date

.

2. The defendant was guarantor for the Account with a limited liability of £xxxx.

 

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

 

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

 

5. On or about date, XXXXXX limited defaulted on the overdraft associated with the Account leaving a balance of £xxxx. XXXX limited ceased trading on or about date.

 

6. On or about date, the Claimant called in the guarantee from the Defendant.

 

Defence

 

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

 

Counterclaim

 

8 insert usual POC stuff about charges. This could be based on the NatWest business account POC altered to reflect Barclays T&Cs (there is no Barclays-specific business POC (yet))

Obviously there is some work to do to fill this out and details to supply and confirm.

[dhoom]

Thanks Steven

 

If we do this then their arguement would be that, even if all the penalty charges and interest applied to it, were taken off then the companys liability would still be more than the guarantee given and amount claimed.

 

My counter arguement would be that they can't pick and choose items from the statement randomly, that is why I had always insisted that they give me a breakdown of the transaction that the are claiming from me.

 

Would it better to neither deny or admit the claim until they give further information i.e. detailed breakdown of the amount they are claiming. i.e. list of transaction dates etc.

 

I hope this makes sense.

[steven4064]

The trouble is that you are almost certainly not going to get that information beforethe deadline for your defence. However, make sure that your need for that information is included in the defence/counterclaim and then they will have to supply it as part of the full disclosure.

 

The way I wrote the draft above was to neither admit nor deny your liability but just to state that you don't agree with the amount. You could add a paragraph about the lack of information in that part.

 

The strategy is that they will not be able to take you to court for your liability without also putting themselves in the position to be questioned about the unlawfulness of their charges. No bank so far has willingly let the lawfullness of penalty charges be discussed in court (and we are talking about 10,000's of cases now, if not 100,000s).

 

Should the test case come to a relevant conclusion in the meantime, that will just strengthen your case.

 

Hopefully, they will then not get (or at least give up) the opportunity to argue that, even if all the penalty charges and interest applied to it were taken off, then the companys liability would still be more than the guarantee given and amount claimed.

 

What I hope would happen is that they would make efforts to settle out of court, giving you the opportunity to settle at a lower figure than your full liability.

 

Anyone else like to comment on this strategy? Slick?

[slick132]

Happy to take a back seat and watch.

 

However, totally agree that forcing disclosure re their charges will put bank on their back foot and may leave them more likely to negotiate.

[dhoom]

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

[Goldlady]

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

[slick132]

Dhoom,

 

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

 

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

 

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

[steven4064]

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

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

 

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

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

[dhoom]

Steven

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

[steven4064]

Hi dhoom

 

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

[delboy1955]

I had this - watch ourself

 

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

 

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

 

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

 

Delboy

[dhoom]

delboy

 

were you taken to the courts over this

was it Optima you were dealing with

can you give some more details.

[dhoom]

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

[steven4064]

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

[dhoom]

Thanks Steven