Personal Guarantee or not?

[neveragain2010]

First of all Hello Everyone. I have just joined the forum. I a looking for some thoughts on an issue I have.

 

I signed a ‘Credit Account Application Form’ for supply of building materials to a company who I was a Director of. The company went into voluntary liquidation at the end of July and the supplier's solicitor is saying they intend issuing a Sheriff Court Summons to me if I do not pay an outstanding debt f approx £7500.

 

They say I signed a personal guarantee form. I asked to see this and they sent me a copy of the ‘Credit Account Application Form’. It was a single page form which I faxed t them and I clearly understood I was entering into an agreement on behalf of the company. There is no mention of a personal guarantee.

 

The part I signed is Titled ‘Customer Declaration’. I assume Customer is the company and not myself personally. The exact text of this section is:

 

I/We the undersigned apply to ********* Ltd for Credit Facilities and declare that the information given above is accurate. I/We agree to trade on ***** Ltds terms and conditions of sale as are applicable at the time of the transaction and confirm that I/WE have read the sale terms contained in this form. I/We the undersigned being directors of the applicant co , jointly and severally guarantee payment of all financial obligations to ******* Ltd, including any arising from any increase in the credit limit granted in future. ******** Ltd reserves the right to terminate this agreement for credit forthwith without notice upon a breach by the customer of any Terms and Conditions and all monies then outstanding will become due forthwith.

 

This form must be signed by the Sole Trader, All Partners and if a Limited Company a duly Authorised Director.

 

Name…………………..Sign……………………..Position………………Date………

 

There was no ‘sales Terms’ contained in the form.

 

The letters issued by their solicitors are being sent to my old company address but to my personal name. I only got them as I popped in to collect some things. It is a multi tenant office and the reception knows my name and put them aside for me. So they are not sending these letters to my home address as they do not know it.

 

My question is how valid is their claim. I understood that any personal guarantee could not be included in a Credit Application and would need to be a separate form or at least a separate signature clearly stating it was a personal guarantee.

 

I am worried sick about this, I was not a shareholder in the company but merely a director/employee. So I have lost my Job and a large amount of salary. I am trying to get back on my feet and this is causing me even more stress.

 

I am based in Scotland and so was the supplier. The company base I worked for was in Scotland although the head office was Manchester.

 

The final letter from them stated that if I did not pay by 1st September then Court Proceedings would be issued. I have heard nothing since although I do not think they have my address.

 

Any help or advice would be most welcome.

[neveragain2010]

Can I move this thread to legal???

[maroondevo52]

Hello and Welcome,

 

I'll move this thread to Legal Issues.

 

Regards.

 

Scott.

[The Mould]

First of all Hello Everyone. I have just joined the forum. I a looking for some thoughts on an issue I have.

 

I signed a ‘Credit Account Application Form’ for supply of building materials to a company who I was a Director of. The company went into voluntary liquidation at the end of July and the supplier's solicitor is saying they intend issuing a Sheriff Court Summons to me if I do not pay an outstanding debt f approx £7500.

 

They say I signed a personal guarantee form. I asked to see this and they sent me a copy of the ‘Credit Account Application Form’. It was a single page form which I faxed t them and I clearly understood I was entering into an agreement on behalf of the company. There is no mention of a personal guarantee.

 

The part I signed is Titled ‘Customer Declaration’. I assume Customer is the company and not myself personally. The exact text of this section is:

 

I/We the undersigned apply to ********* Ltd for Credit Facilities and declare that the information given above is accurate. I/We agree to trade on ***** Ltds terms and conditions of sale as are applicable at the time of the transaction and confirm that I/WE have read the sale terms contained in this form. I/We the undersigned being directors of the applicant co , jointly and severally guarantee payment of all financial obligations to ******* Ltd, including any arising from any increase in the credit limit granted in future. ******** Ltd reserves the right to terminate this agreement for credit forthwith without notice upon a breach by the customer of any Terms and Conditions and all monies then outstanding will become due forthwith.

 

This form must be signed by the Sole Trader, All Partners and if a Limited Company a duly Authorised Director.

 

Name…………………..Sign……………………..Position………………Date………

 

There was no ‘sales Terms’ contained in the form.

 

The letters issued by their solicitors are being sent to my old company address but to my personal name. I only got them as I popped in to collect some things. It is a multi tenant office and the reception knows my name and put them aside for me. So they are not sending these letters to my home address as they do not know it.

 

My question is how valid is their claim. I understood that any personal guarantee could not be included in a Credit Application and would need to be a separate form or at least a separate signature clearly stating it was a personal guarantee.

 

I am worried sick about this, I was not a shareholder in the company but merely a director/employee. So I have lost my Job and a large amount of salary. I am trying to get back on my feet and this is causing me even more stress.

 

I am based in Scotland and so was the supplier. The company base I worked for was in Scotland although the head office was Manchester.

 

The final letter from them stated that if I did not pay by 1st September then Court Proceedings would be issued. I have heard nothing since although I do not think they have my address.

 

Any help or advice would be most welcome.

 

Hello neveragain

 

That is not a personal guarantee, you signed as Director yes? If so, then you are not liable for any amount claimed by them. The Director of the company (you) and you are two entirely different entities.

 

There would need to be a guarantee agreement separate to the credit agreement with the customer whereby you, in your personal capacity agree to be the guarantor of the customer and accept liability if the customer is unable to or fails to honour the said credit agreement.

 

Statute of Frauds 1677 is the act you can rely upon, you have a complete defence against this claim.

 

I think that you should go back to the business premises to find out if a claim has been served there.

 

I hope that will help you a little bit.

 

Kind Regards

 

The Mould

[neveragain2010]

Thank You Mould

 

Your comments are really welcome.

 

Things have moved on a bit as I only recently moved this thread to legal.

 

An 'Initial Writ' was sent to the office address in my name. On top of this I now have a new job in the same building for another company. So obviously they get to me. It was recorded delivery but the receptionist signed it.

 

Anyway teh documents says I must respond by 26th November. I need to admit it or state I wil be defending it. If I want to defend it I need to instruct a solicitor and pay an £80 court fee immediately. Obviously If I ignore it they may judge against me.

 

It seems I have no way of avoiding a fee on thsi even though teh claim is so frivolous. ihave spoken with teh liquidators who were appointed in August. they ahve aksed me to copy it and send them the original. I will do this but then I will worry they will do nothing with it. So not sure where to turn next.

 

I thought about going to the Sherriff court and discussing it with them.

[neveragain2010]

I intend sending a copy of the initial writ to the company liquidators. My only concern is that they may have a conflict of interests? They may be happy that a creditor is chasing me direct and reducing their burden/increasing their fees? Does anyone have experience of this?

 

Sorry for all the spelling mistakes in the last post - was typed in a hurry.

[neveragain2010]

I have now spoken to the liquidator on this. They are a worldwide respected organisation and also agree that the claim is not against me personally. They will write to me to confirm this. I spoke with the pursuing solicitor who disagree (of course they do). Now I have to rspond and pay a court fee for what I think is a frivolous claim. Wasting my own time and money as well as public time and money. It is so frustrating. I cannot afford a solicitor so I risk defending on my own and being slaughtered by legal experts and losing. Surely there should be a better system?