A Hello and plea for help

[crycol]

Hi everyone - am new to here and so happy to be so as everyone appears to be helpful

 

I am desperate.

The sob story first. 69 years old. Unable to work after heart surgery, wife also who has advanced athritis and has a series of operations ahead of her.

 

Income , joint around £14,000 - so little left to pay the sharks.

 

The problem. When had heart attack 2 years ago had bank overdraft facility for £20,000.

I had signed a guarantee some 6 years previously in dubious circumstances

The bank was just over the road, manager came over said you are overdrawn so need to sign a formal guarantee to let the overdraft continue. Guarantee said advice should be taken - bank manager said dont worry about that, just sign it, sure it will be ok . Did so and didnt think another thing about it. No Waiver form form was offered or signed.

 

Didint think any more about it.

Sometimes bank owed me money, sometimes overdraft facility used.

 

When I had heart attcak, my wife had to take over running of business (£1.2milliont/o) but as I I was engineman, stoker and guard, it soon began falling apart.

She told manager of situation and had meeting with him. The facility continued and indeed they let it go over!. Another meeting was arranged but the manager did not turn up.

When I was well enough to know about the circumstances it was clear the biz.could not carry on and we appointed a receiver to arrange voluntary liquidation, which was done very quickly.

 

Bank did not attend creditors meeting. (No one attented creditors meeting)

 

10 months later bank wrote asking for money. I said couldnt pay

a further 4 months recovery dept wrote.

I filled in all forms (incidentally I have no meaningful assetts, the house belongs to my wife who boughtit, pays rates and utilities on it - we married after the properties purchase - I havnt owned a property for 16 years) giving income aand expenditure.

I offered without prejudice a full and final payment of £2.000 and at same time requested documentation and time trail on the guarantees signing.

A month later, they rejected the offer but did not provide paperwork

I phoned, repeated offer, rejected again, and verbally requested the paperwork. Said it would be with me in 21 days

 

Nothing, so 42 days later sent a letter that as I had not heard from them considered the matter closed

 

Now, ist November, MONTHS later had letter from Apex debt collectors demanding money

Have verbally related facts to them stressing I had not admitted the debt as it was signed for under duress with no time give for outside advice and without a waiver being signed.

Also that once the bank had been advised of my circumstances they should have stopped the facility - especially as at one stage the account was in credit!

 

Apex have said, if I pay the £50 that shows my goodwill

and would be advantageous as to my intentions

 

Still no paperwork

 

If I pay the £50, am I then admitting the debt even though I say without prjudice

Apex claim I have admitted the debt by making an offer to pay" £2000 in full and final settlement without prejudice to my contesting the validity of the claim"

 

Frankly, if the take me to court, there is no blood to come out of the stone, bankruptcy would be an inconvenience but not a disaster as it would then clear off some credit card debts (which seperate to the guarntor claim are not a particular problem) and I dont need to borrow money.

 

Should I pay the £50

Should I make another offer (I withdrew the last when it was not accepted

Should I call their bluff and let them take it as far as they want

 

Any advice would be gratefully received

[crycol]

Sorry for a second post. But it is important to know that my wife was not a director of the Company and had not been asked my me to talk to the bank as my agent - indeed, it was not until a few months ago that I knew she had done so

[PGH7447]

let them call your bluff

 

have you sent a sar to the bank demanding all paperwork etc?

[crycol]

Thank you PGH

 

The request as you put it not sent.

I requested - copies of any correspondence, the date the guarantor form was submitted to me, and the daye it was received back

 

Essentialy, they will be unable to supply it as it was brought over andtaken back by hand in the space of 15 minutes

 

In considering this, will sending a forma Subject Access Request help?

Thank you again

[cerberusalert]

If they cannot provide a copy of the agreement where you act as guarantor then it's game over for them.

[PGH7447]

Cerb said it no agreement no enforceable debt - overdraft or otherwise

[crycol]

Thanks to both of you.

 

I did sign the guarantor form and they have produced a copy.

 

What they have NOT done is provide a timeline.

Essentially the bankman said sign here or no overdraft. As there were cheques waiting to be paid, I signed. The agreement advised to take professional advice, but I was urged to sign there and then "as a formality"

 

My opinion is that as they did not offer a waiver - I doubt if they had them in those days - and I was not given time to take advice, I was under duress.

 

To "prove " this, is why I have asked for

 

any covering correspondence - I dont believe there is any

Date the agreement was sent to me

date I returned it

 

I would like to think that if they cannot do either of these things my claim of duress will stand up

 

Hopefully......

 

But am really nervous about sending APEX even 50p never mind £50 as I feel they would claim that is an admission of the debt.

 

I would still pay the £2,000 I offered as full and final, without prejudice and all that, just to get it sorted - with my health as it is I have little enough time left, and while my wife had no direct involvement in it, and I have no share in the property while she is alive, should, as likely, I predecease her ( as well as health issues she is 10 years younger and from a long living family) I do not want her being pressurised by these people. Life will be tough enough for her without all that

[crycol]

I have posted my problem elsewhere - but can't find it!

 

This is not the problem but related to it.

 

HSBC have ignored correspondence and requests for information sent to them over 6 months ago (2 written, 1 verbal)

 

Have had letter from Apex saying I have to deal with them and pay them money, give statement of affairs etc

 

But HSBC have not told me they have passed the matter to Apex.

 

Do I have to talk to Apex, ignore them, politely tell them I need to see their mandate from HSBC or request same from HSBC

[Deb T]

Did you send any of your initial correspondence by recorded delivery?

[Deb T]

PS: Your old posts can be viewed by your own control panel in your profile. But for speeds sake here they are

 

http://www.consumeractiongroup.co.uk/forum/search.php?searchid=2939048

[maroondevo52]

Hi, crycol.

 

I have merged both your threads, Like DebT says, to find your threads ect, click on User CP, top left above your 1st post.

 

Regards.

 

Scott.

Edited November 5, 2009 by maroondevo52

[crycol]

Thank you all! Will try to get grips with the navigation.

 

Did not send by recorded delivery, but first request was included in letter, part of which was actioned, but not that part. So they cannot deny receiving that request

 

The verbal request was again a follow up to their reply and when subject raised, That is when I was told the paperwork requested would take 21 days

 

My follow up was sent my normal post, but I did prepare it on my P.C. using word, so I do have a copy on the hard drive as well as a paper copy.

 

Their correspondent is India based I believe, although the correspondence adress is Canary Wharf

[Deb T]

Don't send anything to india that has your personal details on, that is what bit of advice I would give you, if their trading in the UK they'll have a UK office etc.

 

You have to send what you have by recorded delivery, it creates a papertrail that validates that you're in contact with them.

[crycol]

Thank you, Deb.

As stated in my previous post, while it ends up in India I send it to the correspondence address at Canry Wharf (HSBC H.O.London)

 

I will ensure anything elsr goes recorded.

 

But do I need to reply to the DCA - Apex. Should I pay them the £50 goodwill, even though I wont admit the debt as it was under duress, should I say I will not speak to them until HSBC says I should, and even if HSBC says so, can I just ignore them and write to HSBC instead

 

Are Apex entitled to have from me a statement of affairs

 

HSBC have not advised either that they have passed it to Apex for collection or that they have sold the debt on.

 

Apex are suggesting dire consequences if I do not respond in 5 days (from two days ago) on the other hand the "Good Cop" there says if I provide the information they will be able to arrange a speedy settlement

 

I reckon HSBC know they are on dodgy ground (see first post) and are trying the DCA route to frighten me.

But never having been in a situation like this before I really am a lost sheep and know doing the wrong thing at this stage could have horrible consequences

[Deb T]

I would not pay APEX their 'goodwill gesture' at all and as has been stated here several times, send Apex a CCA request...that ini itself will put a halt to their collection activities until they can produce one and even then it may not be enforceable.

 

I would also send a SARS request to the bank which if/when produced should help you at least get to grips with any signatures or bank charges that may have been levied when they shouldn't etc.

 

As for the Liquidation, one assumes it wasn't a LTD company as this would give you some amount of protection against the bank.

 

I think you should also consider taking seperate legal advice on the guarantor aspect of your problem, it seems a little complicated but essentially it would be your word against your bank managers re the signing of any documents, it may be that when pressed the bank might not be able to produce the bank manager?

 

You own no property and I guess you have little in the way of assets that are in your name so bankruptcy as you say may be an option.

 

They can't have what you haven't got..

 

As for APEX, they are a DCA and have zero entitlement to your 'statement of affairs', they can ask until they're blue in the teeth but they are not entitled to it.

 

Send Apex the cca, costs a £1, use a postal order, don't sign the letter, print your name and send it recorded delivery and then check the royal mail website a few days later and take a screenshot of the 'proof of delivery. They have 12 days + 2 to provide the cca, after that the account is in dispute and no money can be requested by them and nothing has to be offered to them by you. (it is ultimately your choice if you want to pay them)

 

At the same time as this send the bank a SARS request, costs £10 ,same drill with signature and recorded delivery. They have 40 days to comply.

I would send postal orders and not sign them etc.

 

When/if you get your CCA ,come back here and post the document up so others can see it, it may be that it's unenforceable...Be sure to remove your personal details when posting it up

 

CCA can be found here..... edit accordingly

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/581-cca-request-letter

 

SARS can be found here ..... edit accordingly.

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/576-subject-access-request-debt-a-dca

 

The general rule of thumb is the DCA gets the cca request, the original creditor the SARS'S

 

What sounds a little out of the box is the £50 'goodwill' gesture that APEX want you to make, sounds like they're trying to get you to commit for whatever reason etc...ignore their rubbish pleas.

 

The people here can help you thorough, DCA's play on naivety and trade on ignorance, CAG helps redress the balance.

 

It's important to remember that you're not alone, plenty of people are in just such a postion as you (myself included) so try not

to get to out of shape and at 69 you should be taking things easy and enjoying your cocoa *lol* sorry pun fully intended.

Edited November 5, 2009 by Deb T

[crycol]

Deb T - you are an angel, yopur trouble in replying is much appreciated.

I am not confrontional by nature, my inclination is always to negotiate but am out of my comfort zone here as these people are clearly just after the money and their rake off, with the bank acting badlyfrom the start right through to now where they are not responding either to my requests nor letting me know what action is being taken.

 

 

It was a Ltd Co, so although they negligently allowed the overdraft to go WELL over the £20,000 they got me to guarantee all those years ago, they can only claim that part of it.

 

We will see- and I will certainly let you know what is happening

 

Thank you again