Family Business Loan - Signed Promissory Note - SD Failed - Now a Claimform

[BazzaS]

If you don’t want to make any mistakes : when are you going to post the <redacted> PofC ?

[rippedoff15]

This is the PofC on the court papers 

 

1. On 31st July 2008 the Creditors ( Mr & Mrs XXXXX ) advanced the sun of £20,000.00 by way of personal loan to the debtor and her husband, Mr XXXXXX who was subsequently adjudged bankrupt

 

2.On 29th September 2009 the Debtor and her husband signed a promissory note, confirming that the debt was repayable on demand, and her husband made number of payments towards reducing the balance, thereby acknowledge the existence of the debt.

 

3.The final such payment of £125.00 was made on 1st September 2014. No subsequent payments have been made.

 

4.A Demand for payment was made on 6th march 2017 which was ignored and i received no correspondence from the debtor

 

5.As of 12 March 2020 the outstanding balance is £27,660,.88

 

Claimed Amount £27,660.88

Court Fee`s £1,244.74

Total Claim £28,905.62

 

 

Point 4 the claimant issued a Statuary Demand 

[honeybee13]

Can you remind us how they arrived at the figure of £27,660.88 please?

 

HB

[rippedoff15]

The original sum paid to the business was £20,000 we repaid approx £13,000 and since then they have been adding interest 

 

In real terms we have paid £13,000 and they now demand another £27,660.88 plus court cost giving total of over £40,000

 

 

 

[dx100uk]

3.The final such payment of £125.00 was made on 1st September 2014. No subsequent payments have been made.

 

so can't be statute barred then...??

 

is the above correct? payments were being made until this date?

 

dx

 

[rippedoff15]

According to our record the last payment was 1st August 2013, if they are correct and we hope they are wrong they class falls on where the Promissory note is legal as they are using the note as the main part of there claim.

[dx100uk]

On 10/01/2015 at 11:09, rippedoff15 said:

Well today we have had a letter from a solicitor informing myself & my wife that they are now intending to recover the debt,

 

 

he is asking for a mediation meeting as we are not speaking ( 6 years now ) not realistic ,

 

 

The other party paid to my business £20k which was paid directly to the business bank account

the business went into administration.

 

 

After the business went bust i myself following an illness was declared bankrupt and lost everything including our house.

 

 

They demand we sign a promissory note for the debt,

to date we have repaid over £11k

however as they are adding interest the debt claimed is now back to £20k

 

I have been repaying every month £125.00 which is all we can afford

and now they have instructed a solicitor,

therefore we are now at a point and totally unsure what we action we can take apart from filing joint bankruptcy.

 

Can anybody help in this matter

looks like you were paying them..not sb'd

 

dx

[rippedoff15]

Afternoon

 

I have double checked and cannot find any payments since the Aug 2013, overall they must prove it`s not SB and there not they are saying they debt is enforceable as they have a promissory note. if our defence states SB information and the Promissory note not Executed as Deed or any consideration would this be acceptable

 

  

[Manxman in exile]

1 hour ago, rippedoff15 said:

According to our record the last payment was 1st August 2013, if they are correct and we hope they are wrong they class falls on where the Promissory note is legal as they are using the note as the main part of there claim.

 

I don't think that their case rests solely on the promissory note.  I think they are claiming there was an agreement to lend you (or your wife, or both of you, or your business) £20k and that you would pay it back.  I suspect they then came up with the idea of using a promissory note to reinforce or confirm that agreement some time after the fact.  (Do they have a solicitor?  I suspect not otherwise they would have been told it needed to be executed as a deed if there was no consideration).

 

If the court kicks out the promissory note they'll just try to establish that there was still a loan and an agreement to pay it back.  And that would be quite easy to do if you've already paid back £13K.

 

How come you don't seem to know when you last made a repayment?  The claimant has given a specific date - just within six years which is why they are making a claim now.

 

I see you've just posted again...

2 minutes ago, rippedoff15 said:

Afternoon

 

I have double checked and cannot find any payments since the Aug 2013, overall they must prove it`s not SB and there not they are saying they debt is enforceable as they have a promissory note. if our defence states SB information and the Promissory note not Executed as Deed or any consideration would this be acceptable

 

  

 

[Manxman in exile]

I couldn't edit the above.

 

Are you sure they need to prove it's not statute barred?  I would have thought that's for you to prove, not for them to disprove.* They clearly state in the claim that "you" made a payment in September 2014.  I'd be surprised if they included that without being able to back it up.  Are they lying?  Can you show it's not true?  Could your wife have made a payment to her twin sister without you knowing?  Your record keeping can't exactly be said to be meticulous

 

In your defence you will need to deny that such payment was ever made.  It's not all about the promissory note.

 

*I must admit I don't know, but I doubt that you can simply assert in your defence that the claim is statute barred and the court would just accept it - otherwise everyone would do it!

[Old Cogger]

Proof of how. By whom and account paid from demand???   Another phantom payment comes to mind

[dx100uk]

forget any paperwork…enforceable or not...immaterial ... if they cannot PROVE you have made payments within 6yrs from the claimform date, that will allow your SB defence to win hands down.., and nothing else they come up with will matter, not even the note..

 

it's for a claimant to prove a debt is NOT SB'd, not for a defendant to prove it IS.

 

i'm a bit concerned if you read from post 1 again (which is all the info WE have to go by) you appear twice , at the relevant time or within it (6yrs) , to have been making current payments.

 

go read, p'haps it might jog your memory then check your data again...

 

 

 

 

 

 

[Manxman in exile]

I only first read this thread a couple of weeks ago and I thought the OP had made repayments within the last six years as well.

 

Looking back I can quickly find #23 (10 August 2014), #24 (10 January 2015) and #31 (24 January 2015) all of which state the OP was then repaying £125 per month.

 

All of which questions the (in)accuracy of the OP's records - and also the claimant's if they state the last payment was September 2014!

[BazzaS]

1 hour ago, Manxman in exile said:

I think they are claiming there was an agreement to lend you (or your wife, or both of you, or your business) £20k and that you would pay it back.
 

.......

 

If the court kicks out the promissory note they'll just try to establish that there was still a loan and an agreement to pay it back.  And that would be quite easy to do if you've already paid back £13K.

 

OP says it was to the (liquidated) business.

 

OP also says it they went bankrupt (irrelevant if the loan was to the business, potentially relevant if they [instead] listed it as a personal liability to their Trustee in Bankruptcy/ the OR)

 

Why pay 13k? “Your Honour, there was no legal obligation to pay, only a moral one, as far as we could. We invite the court to consider the lack of legal obligation”

[rippedoff15]

We will be laying out all paperwork in the morning and double check the payments

[AndyOrch]

May be of interest......

 

Miscellaneous amendments of Limitation Act 1939

1Limitation in case of certain loans

After section 2 of the [1939 c. 21.] Limitation Act 1939 (referred to below in this Act as " the principal Act") there shall be inserted the following section—

“2A A Limitation in case of certain loans.

(1)Subject to subsection (3) of this section, section 2(l)(a) of this Act shall not bar the right of action on a contract of loan to which this section applies.

 

(2)This section applies to any contract of loan which—

(a)does not provide for repayment of the debt on or before a fixed or determinable date; and

(b)does not effectively (whether or not it purports to do so) make the obligation to repay the debt conditional on a demand for repayment made by or on behalf of the creditor or on any other matter;

except where in connection with taking the loan the debtor enters into any collateral obligation to pay the amount of the debt or any part of it (as, for example, by delivering a promissory note as security for the debt) on terms which would exclude the application of this section to the contract of loan if they applied directly to repayment of the debt.

 

(3)Where a demand in writing for repayment of the debt under a contract of loan to which this section applies is made by or on behalf of the creditor (or, where there are joint creditors, by or on behalf of any one of them) section 2(l)(a) of this Act shall thereupon apply as if the cause of action to recover the debt had accrued on the date on which the demand was made.

 

(4)In this section ' promissory note ' has the same meaning as in the Bills of Exchange Act 1882”.

 

http://www.legislation.gov.uk/ukpga/1980/24/crossheading/miscellaneous-amendments-of-limitation-act-1939/enacted/data.xht?view=snippet&wrap=true

 

http://www.legislation.gov.uk/ukpga/Vict/45-46/61

[rippedoff15]

Makes very interesting reading, not sure how to put into defence

[rippedoff15]

Just checked we last paid in Aug 2013, however my wife tried to sort out and she did in fact make 1 payment on 1st September 2014, therefore its not SB until or after 1st September 2020.

 

Simple words up the creak without a paddle, not sure how to base defence on now 

[dx100uk]

I will bet this payment was made under duress?

[BazzaS]

Other than the money

a) was a business loan,

b) if it was to you personally, you went bankrupt, and

c) the promissory note doesn’t create an enforceable contract ....

 

7 pages of people giving you good advice that you have to be dragged into following, if followed at all (like posting the actual PofC!)

 

10+ years, and at the outset, you were advised not to sign the promissory note, then you came back 2 years after to say it had been signed ....

 

Multiple pages of advice, not followed, or only followed begrudgingly, at the 11th hour.

 

Defence (regarding the promissory note) pretty much written for you...... yet you are “up a creek”??!

 

Some people just can’t be helped.

I’m out.