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

[BazzaS]

rippedoff15 said:

We have had a letter from xxx LLP demanding over £20k relating to this long standing issue, We have been asked to contact xxx Practice Manager with a view to repayment of the outstanding amount.

 

How can we sort this issue out once and for all to bring this to a close.

 

My question is if they start legal action after 21 days what happens next ?

Should we file for BR

 

Any help would be great

 

I'd follow the advice you've previously had.

This is pretty much the same as when they were threatening court before : what is actually different this time around? (other than them using a different solicitor?)

 

I also recall noting previously (14th March 2015):

BazzaS said:

The OP hasn't really followed the advice (don't pay, deal in writing only) since early 2014, and probably since the thread started in 2009 (advice : don't sign promissory note, debt dealt with by company insolvency) ......

What makes anyone think they'll start now?

 

CAG is a self-help site. The OP is going to have to start helping themself rather than keeping posting without helping themself, if they want to change the status quo.

 

If there are changed circumstances where new advice might apply you'll need to highlight what has changed, otherwise :

Read back on the thread. Follow the advice you have already had answering this.

[rippedoff15]

Well nothing has changed much with regard to our income and in fact it has been reduced,

they used a solicitor last year and after we replied back in writing we got zero reply from that solicitor.

 

They have continued to ask for a future inheritance to be changed which has been refused point block they even got the grandson to ask for the will to be changed as well and again refused.

 

This time the letter we had on 5th which was dated 6th May is from a person who was a solicitor who was charged with 5 counts of fraud sent to jail, and also declared bankrupt and now acts as a type of solicitor giving advice.

 

I have checked this guy out and found he is using name of a legal firm in London at his own home address and the website on the letter is not the company from London and in fact his website is not even registered.

 

I have written a letter which we will send recorded to the address on the letter and to their home address as well.

 

This is the letter which we are sending have we missed anything or need to add any more detail

 

Dear Sir

 

I refer to your letter dated 6th May 2016,

I do not accept that any money is owed to you by me or my wife.

 

As you are already fully aware the funds were paid directly to the business this point is very clear which has been already confirmed by Mr & Mrs XXXX,

 

At the time the funds were paid into the company bank account this information was clearly shown on the company debt on the accounts, When the company went into administration the amount was still outstanding on the firms account and Mr & Mrs XXXx were in fact a creditor.

 

I understand that my wife was pressured into signing a document labelled 'promissory note'.

As you are aware my wife did not have any involvement with the above debt and cannot be considered liable for it in any way.

 

My wife did not receive any consideration for signing the promissory note and accordingly it is not legally enforceable against her.

 

As the promissory note does not state it was signed as a deed, in our view it is not legally enforceable.

 

In order to have a legally enforceable contract, there must be what is known as "consideration".

This means there must be an "exchange"

- in other words, Mr & Mrs XXXX would need to have received something of value as part of an exchange in order for her promise to pay money to be legally valid.

 

Our understanding is that Mr & Mrs XXXXXX did not receive anything in exchange for signing the promissory note and hence the promissory note is legally enforceable as a contract.

You may read

http://en.wikipedia.org/wiki/Conside...in_English_law*to confirm this.*

 

The only exception to the above rule is where you have a document which is signed as a deed.

A deed does not require consideration.

 

One of the requirements to have a valid deed is that the document must clearly state that it is a deed.

If it does not state this then it is not a deed.*

In a sense, this is a technicality.

 

But it is a fundamental technicality and has been a rule of English law since the 1400s

- the courts don't enforce contracts like promissory notes unless both sides have exchanged something.

 

I don't think a judge would have much sympathy for them on this given that they pressured your Mrs XXXXXX into signing it.

 

If your client still wishes to take this matter further,

I suggest that Mr & Mrs XXXXXX Begins a claim against Mrs XXXXXX through the County Courts so that the claim can be properly adjudicated. We will defend any claim based on the reasons set out above.*

 

However there are different options clearly open to bring this matter to a close,

Mrs XXXX who clearly has no funds nor any assets available so no real terms the only option open to Mrs XXXXX is to file for bankruptcy as she is now insolvent.

We will have option but to apply for bankruptcy to bring closer this matter.

 

On our last point Mr & Mrs XXXXXX & their son XXXXXXX will now be reported to the Police for Harassment as they continue to put pressure on Mrs XXXXXXX with regard to any future inheritance which XXXXXXXXXX may inherit which clearly is upsetting and fells under harassment.

 

Neither I nor Mrs XXXXX are prepared to discuss this matter via the telephone.' or something similar.

 

Please direct any future correspondence in writing.

 

Yours Faithfully

[steampowered]

I would suggest deleting the following paragraphs as they are not necessary. Otherwise, I think the letter looks fine. I don't think it is necessary to add more detail at this stage.

 

In order to have a legally enforceable contract, there must be what is known as "consideration". This means there must be an "exchange" - in other words, Mr & Mrs XXXX would need to have received something of value as part of an exchange in order for her promise to pay money to be legally valid. Our understanding is that Mr & Mrs XXXXXX did not receive anything in exchange for signing the promissory note and hence the promissory note is legally enforceable as a contract. You may read

http://en.wikipedia.org/wiki/Conside...English_law*to confirm this.*

 

The only exception to the above rule is where you have a document which is signed as a deed. A deed does not require consideration. One of the requirements to have a valid deed is that the document must clearly state that it is a deed. If it does not state this then it is not a deed.* In a sense, this is a technicality. But it is a fundamental technicality and has been a rule of English law since the 1400s - the courts don't enforce contracts like promissory notes unless both sides have exchanged something. I don't think a judge would have much sympathy for them on this given that they pressured your Mrs XXXXXX into signing it.

 

or something similar.

Edited May 6, 2016 by steampowered
typo

[BazzaS]

Many Thanks, we have been given 21 days so the letter will be record to arrive 2 days before the date stated.

 

Why worry about the 21 days?. It would be a blessing if they started court action .... It would put an end to 6+ years of harassment / threats of legal action. Your letter tells them "put up or shut up", so if they do claim : great.

 

If they carry on to form they won't issue a claim. How many times have they sent letters saying "pay up with X days or we sue" already?

[SabreSheep]

This situation is stupid

 

They need to be told "Take me to court or shut up" Maybe "No further communication on this matter will be taken unless/untill we recieve an N1 claim form.

 

No further responces

 

Neatly put away any letters in a draw for future reference

 

Get on with your life.

 

UNLESS you receive a CLAIM form, this ends the moment you stop talking to them

[rippedoff15]

Well final letter sent by recorded mail the chap claiming to be their solicitor,

its been over 10 days and had no reply so far.

 

 

I did speak to the IP who managed the company administration and they confirmed they are listed as a creditor on the accounts.

 

According to the IP the debt was listed and now the issue is closed according to the IP,

i have been told they are trying to sell the claimed debt to a company so maybe the end is not so close.

[steampowered]

Not sure why you are speaking to people. There is absolutely nothing you can do about this, except for defending a claim form if one arrives.

[SabreSheep]

As Steampowered has said

No more talking to anyone.

 

Await a court claim. That would be the best thing that could happen and for that reason, I suspect it will never happen.

 

If they are selling the debt, they too know they have no chance in court. If they did they would of issued court papers long ago.

 

Time to move on with your life.

If any post arrives relating to this issue, read it, put it in a filing cabinet and forget. IF an N1 claim form turns up then come back.

NO talking to anyone by phone

NO talking to any person who shows up - Tell them to go away and call the police if they refuse

NO letter writing unless a N1 claim form turns up.

 

If they are selling it, they will sell to a DCA that has no legal powers other than to issue an N1 Claim form and start court proceedings (WHICH THEY WONT! because if there were any chance of recovering the full amount the creditor would of claimed themselves)

 

The DCA will pay something silly like 5p in the £1 for the debt. THATS even if they can get someone to buy it! So ask yourself. If they have the legal right to 100% of the money why settle for 5 or 10%?

[rippedoff15]

We fully understand about sitting and waiting for the court papers,

they have written again

now stated they intend in reporting a fraud as well.

 

 

They have give us 21 days from the 13th June to confirm a repayment or they will report a fraud claiming its a civil case and criminal as well.

 

I will add the letter words later today, its very hard just to sit back and just play the waiting game.

[rippedoff15]

Thanks for replying,

 

My wife is panicking when the letter states Fraud and criminal offence, i have not read the letter myself today, i will tonight later when i get home. I will add the full details of the letter which has been sent.

[steampowered]

Feel free to let us know what the letter says, but it doesn't sound like anything to be concerned about. I can't see how anything you have described could be seen as fraud.

 

If they believed they had a criminal case, they would have pursued that by reporting it already.

[rippedoff15]

This is the details within the letter:

 

RE: Loan

 

We refer to the above matter and our previous letter to you plus your reply.

 

We have spoken to both Mr XXXXX and his local adviser and they have indicated they consider your position is a fraudulent action relating to the loan given to you both

 

Accordingly as you are not prepared to reach any settlement and appears will try and avoid and payment due that they will now consider your action as a criminal action and will advise the authorities to take criminal action against you not just civil.

 

Perhaps you should take further advice and if we hear nothing with 21 days then action will proceed against you both

 

If you have any questions or queries then please contact us and wait to hear from you.

 

Yours Faithfully

 

Sign by the Chap as Legal Manager.

 

I have looked into the company who are sending letter and they seem fraudulent, the own was a solicitor but now cannot act due to bankruptcy and given sent to jail for fraud.

[rippedoff15]

Well just had the statement any the amount outstanding is £20,198.99 and they have stated we are refusing to deal which this matter and legal action is in progress ?????

[BazzaS]

Well just had the statement any the amount outstanding is £20,198.99 and they have stated we are refusing to deal which this matter and legal action is in progress ?????

 

If legal action has actually started, you will receive a court claim form. Otherwise its just more bluster.

 

I agree with SP, and as a result it is actually a "win-win" for you.

 

If they do take court action, you can defend it, and when the case is found in your favour they can't come after you again for it (or if they tried to: refer them to the court's decision).

 

If they don't issue a court claim,

ignore any future contact up until the point you do receive a claim,

or reply only with the same reply each time of

 

 

"You keep stating the money is owed, despite our denials. You have mentioned legal action.

Whilst we wouldn't wish the court's time wasted,

if it is the only way to bring this matter to a conclusion,

please go ahead and issue the claim if you feel it is warranted,

and we can let the court decide.

 

If you keep making the same statements of an alleged debt without issuing a court claim,

we will just reply with this same reply debying your claim, each time".

[rippedoff15]

Well just wanted to add the detail from the letter which was sent on 6th April

 

Re: Debt due to Mr & Mrs ABCD

 

We refer to the above matter and did write to you some time ago but it appears no progress has been made to settle the debt due to our clients.

 

We are therefore giving you notice that due action will now commence against you within the next 14 days and you will be served with statutory notices and action via solicitors.

 

We: the clents have tried to settle matters without success and are left with no alternative but to take legal action against you.

 

If need to contact then please correspond back or call mr on 01234 56789

 

Your sincerely

signed by

 

Legal Manager

 

 

Once again the letter has come from person has sent the letter printed off home PC,

he has added company details including all the directors names and the company registration of a company which according to companies house is active but filing dormant accounts thus not trading so potentially he must be committing fraud by using their details with or without there knowledge.

 

I have told my wife we have nothing to panic but she is concerned about what they are going to do next if anything, i do have a few questions

 

1, Should i report this to the police statng my concerns and if how would i start with reporting this matter?

 

2, They state you will be served with statutory notices would this be in joint names, thinking this would be to obtain CCJ in joint names first with a view to bailiff action to recover the claimed debt.

 

3, If they obtained the CCJ who applies for bankruptcy as clearly we cannot repay the amount which they claim is outstanding

 

4, If they issue a statutory notice ( Demand ) this relates to bankruptcy if that`s the case who has to pay fee fort he bankruptcy

 

5, We have not assets and live in a private rented property same landlord for 7 years fully paid up rent with no issues

i have read the rental agreement and there are no clauses relating to bankruptcy, we own a family car 11 years old, and i have a car on lease / finance which i need to get to work, apart from TV, fridge we have no other assets.

 

 

Last question is

should we write letter again stating our position as proof we are replying to there demands as if this went to court we would have a paper trail of proof. or just sit back and wait for there next move regarding this matter.

[honeybee13]

Hello there.

 

Has anything happened since September apart from this letter please?

 

I would say that Steampowered's and Bazza's posts above still apply. All they've said is they may take legal action, which they haven't done all this time.

 

Please wait for the legal brains to see your thread though.

 

HB

[rippedoff15]

Hello HB,

 

No nothing since September, we have been told by another family member they intend to drag this through the courts, as you an see our family has been ripped apart completely to the point my wife has been verbal threatened by another family member to get it repaid.

[BazzaS]

How does this new letter actually differ from all the last letters?. I can't see how it does, so you are actually asking the same question over and over.......

you've had the answer : ignore (until they issue court papers), as you've already replied.

 

If you really feel 'you have to do something', then you could send a letter saying "you appear not to have received our previous reply, noting that we won't answer further as our positions are now entrenched, please find a copy enclosed" BUT you are then just buying into their game of 'letter tennis'.

 

If you didn't send the previous letter noting this by a method by which you have proof of delivery, then consider sending it recorded or special delivery for a record of delivery. This gives you your 'paper trail' if you want that, and you need only do that the once unless they start sending something that changes the position, which this latest letter doesn't.

 

If they go down the statutory demand route (rather than the CCJ route), then you apply to have the statutory demand set-aside, on the same grounds you'd use to defend a CCJ claim (estoppel, and lack of consideration, from memory ...... but it was raised further back in the thread)

[BazzaS]

How does this new letter actually differ from all the last letters?. I can't see how it does, so you are actually asking the same question over and over.......

you've had the answer : ignore (until they issue court papers), as you've already replied.

 

......

 

 

If they go down the statutory demand route (rather than the CCJ route), then you apply to have the statutory demand set-aside, on the same grounds you'd use to defend a CCJ claim (estoppel, and lack of consideration, from memory ...... but it was raised further back in the thread)

 

Correction, grounds of defence are insolvency of the Ltd company, Op's bankruptcy, and lack of consideration for the promissory note, which also wasn't executed as a deed.

 

Post #69, March 2015.

 

The OP hasn't really followed the advice (don't pay, deal in writing only) since early 2014, and probably since the thread started in 2009 (advice : don't sign promissory note, debt dealt with by company insolvency) ......

What makes anyone think they'll start now?

 

CAG is a self-help site. The OP is going to have to start helping themself rather than keeping posting without helping themself, if they want to change the status quo.

 

I'm not sure that the OP is following the advice given. Perhaps they could confirm what they have actually done?

(Including if they have been making payments, as 'statute barred' may feature in any defence too, by now.

 

Otherwise it is just 7 1/2 years of "we've received this letter" and "that letter"!.

Why is the OP more worried now, rather than at any time in the 7 1/2 years that court action has been threatened and not taken? ..........

[rippedoff15]

URGENT HELP

 

Well letter today,

 

My wife has had a letter as follows:

 

Issued today Statutory Demand under section 268(1) signed by the claimant on 06/03/2017 yet the demand envelope dated 12/04/2017 ?

 

They forms state we have 18 days to have to bankruptcy set aside or pay a total of £21,000 in full, we cannot repay the amount and my wife will not go to court as she is too upset.

 

With the form it states payable immediately, it also states property and goods can be taken away from you ?

[rippedoff15]

Hello,

 

they look official

 

Form 6.1

Form 6.1 Contd.

 

Part A - States details of the county Court

 

Part B - States Solicitor details

 

Part c - as well

 

So looks very official paperwork, i have few questions regarding this paperwork

 

1, If we do not reply and bankruptcy is issued, My wife's credit file will be cleared of all outstanding debts including an old mortgage shortfall.

2, Who pays the fees for the bankruptcy ?

3, If issued will bailiffs visit and try to take goods from our home

 

4, We live in a private rented house rent full paid and been with same landlord for 7 years.

 

By making my wife bankrupt will this mean an end of this matter.

[fkofilee]

Dont know if this is any help - As i have not fully read the case i dont understand the circumstances but it doesnt take away that there is a legal process in place.

 

Challenge a statutory demand

If you don’t agree with a statutory demand you’ve been given, you can apply to challenge it and get it ‘set aside’.

 

You can be made bankrupt or your company wound up if you ignore a statutory demand.

 

You must apply to the court named on your statutory demand. Contact a solicitor or your nearest county court if you’re not sure where to send your application.

 

You can’t challenge a statutory demand if it was served on a company. You can apply to stop your creditors from winding up your company instead.

 

Any bankruptcy petitions the creditor has already filed against you will usually be suspended until the court reaches a decision.

 

The court won’t usually set aside a statutory demand if it was served on you following the judgment of another court unless, for example:

 

you think the creditor owes you the same amount as your debt, or more

the amount on the statutory demand is secured

Deadlines

You must apply to challenge the statutory demand within either:

 

18 days if you were in the UK when you got the statutory demand

21 to 34 days if you were in another country when you got the statutory demand - check the table of countries for specific deadlines

[rippedoff15]

The demand was sent via royal mail post dated 12/04/2017 signed for but it was just posted by the postman ( The demand itselft is dated 06/03/2017 )

[fkofilee]

Interesting;

 

You must deliver (‘serve’) the statutory demand form by:

 

- Giving it to the individual who owes you money (you should try all their known addresses)

- Leaving it at the registered office of the company or partnership that owes money (or the main place of business if they don’t have a registered office)

- Giving it to the company’s director, company secretary, manager or principal officer

- Get a ‘process server’ to serve it for you (a solicitor can arrange this)

 

You can only send it by registered post or put it through a letterbox if it can’t be delivered in person.

 

And also dated 6th of March? That would take you well out of the timescale to respond from date of writing.

[rippedoff15]

It is strange that the demand is dated 06/03/2017 and issued on 15/04/2017 with postage date of 12/04/2017. Therefore can this be void due to the date errors ? once the demand is issued what paperwork is issue next is this by the court ?