Imminent Charge on property Lloyds bank Business Loan pse help someone...

[Guest]

Hi THere are a couple of legal points that need to be clarified.

Does the Utccs apply to the guaratee. I think it should as it is issued toa "Natural person" and not the company . If so the contract fails on many occaisions.

 

Secondly the contract mentions an indemnity, again this needs some legal explination , i was under the impression that an indemnity can only be taken out by the person within the contract, ie it would have to be the customer( firm) not the director (person). I may be wrong in this but it does bear further investigation.

 

Also there is the question about the charge on the property, in my view this could heaave been mentioned in the guarantee, it was not as far as i can see, the argument could be made that if it had, the guarantee would not have been entered into, and by now insisting on the charge they are altering its terms.

 

There is also some disscusion about the legality of theses guarantees in general, i understand that they are excepted practice, and i know that we do not want to try and change the world, but it may be as well to understand these arguments just in case you run into a judge that is of a simmilar opinion.

THe argument is a simple one, in that the guarantee defeats the intention of the factories act to limit the liability of the director of a company.

 

Sorry to add even more questions but they may be usefiul

 

Peter

[Muffintop]

Whew thanks Mould and Peter heavy goingto read.. I need to print off all the case law you mention to read over and over as these are what I will rely on for my defense if its allowed. My husband states that as he took it out as a Director of a company, and the company is now liquidated, how can he be liable. He gave the personal guarantee as a director of the company. The charging order issue is a good point, if its not mentioned in the indemnity and guarantee document would my husband have signed it.... he isnt saying he wont pay it back, he has offered 250 a month initially.. what he is saying is hold on its not right to put a charging order on.

[Guest]

Hi

 

You mention the offer your husband made, may i ask was that documented.

 

Yes that is the point about this type of guarantee i gather. The banks manage to get arroiund the limitation of the liability of the director by getting them to issuae a guarantee as a "natural person".

 

As i said earlier there seems to be some contreversy as to if this is altogether a legitimate practice. It is after all by its very nature going to put undue pressure on the victim as the bank has the ability to withdraw his businesses finance if he doesn't sign. THE UNDUE PRESSURE IS THERE EVEN IF IT IS NOT STATED.

THis is only my opinion though.

 

Peter

 

Peter

Edited May 29, 2011 by peterbard
spelling sucks

[Guest]

Hi

 

Another point that i was made aware of, i do not know if it will be appropriate. if there are any assets after the company has been liquidated your husband as guarantor can have first charge on them. So after the loan has been settled your husbamd would be able to reclaim the value of any liquidated assets, fixtures fittings vehicles etc. I dont know if this info is of any use.

Peter

Edited May 29, 2011 by peterbard
yup sucks big time

[Muffintop]

Company already liquidated done and dusted. Yes the offer of payment husband made is documented luckily done via e mail .. which was also very pushy.

What about assetts he has in his own right now could a charge go on them rather than our house? thanks for advice will read some of the cases tomorrow,

[Guest]

Hi

It may be helpful if you made a time line of events just to clarify things.

Date of insolvency, date loan recalled, date of execution of guarantee, date offer of monthly repayments made, and date of commencement of court action. And any other relevant occurrences or contacts made with the bank.

I know that the order here is probably wrong but you get the idea

It will also help you construct your deffence

Just a thought

Peter

[Muffintop]

Hi Peter, Your so right, I should know that files need to be organised, this will assist with defense as you say and be good to take to court in this format.

After a heavy week of ringing solicitors I think we have come to the conclusion that no one really wants to touch a guarantee and indemnity agreement.. let alone challenge it on such weak grounds.. I ahve finished reading just one of the case law links you sent thankyou the company KFC whose defense was a whole lot weightier than ours and he lost, I dont think we stand a hope in hell of getting our agreement quashed and I think we would be best placed in trying to be reading for any charging order that the dj may issue along with ccj judgement. Im glad that I asked for us to be able to file a defense as it meant that I bought time by asking for sar and any ppi insurance (if we have got ppi with that loan we could take that into consideration to negotiate a f and f settlment otherwise this would be put forward to dj at the time as we would only claim it back) The bank have replied within days which is laughable really when you think how long a sar request was taking with banks cca requests... just shows they chose to ignore those requests as they knew they didnt have the agreements in majority of the cases... anyway digress... the bank acknowledged sar and our complaint and also contacted the bank manager who sold the indemnity and guarantee loan and got a statement from him already.. they are covering their arses.... after reading oft guidelines on charging order and the fact we have tried to negotiate a figure to repay so have played ball I think we would be best to forget the loan and try to damage limitation in relation to any charging order.. obviouisly this makes it hard for me to file a defense now as I dont have one! apart from I wanted to wait for documentation prior to the case continuing, just hope the judge doesnt get the hump over this and think we have wasted time.. We have some involvency issues to sort out also with administrators and everything is too much for my brain along with my day job which is more file compilation.. Your advice over the organisation of the material is sound thanks.. will keep this updated as it happens and keep reading shazzas thread on the charging order.

[Guest]

Hi

 

http://www.nationaldebtline.co.uk/england_wales/factsheet.php?page=15_charging_orders_in_the_county_court

 

 

Also see sequenies blog and threads

peter

Edited May 31, 2011 by peterbard

[Guest]

Duplicate post

[caro]

Apologies that I haven't read through your thread, but I wonder if you could apply for an installment order. It might prevent a CO being awarded as in this thread:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?299564-Yet-Another-Charging-Order-Thread!-***WON***-ICO-removed***&highlight==

[Muffintop]

Thanks Caro and Peter I will look into this as I have no knowledge of this type of order. Peter I will read the case law you mention.

On another note Bank have phoned husband (which is not appropriate and I have said we want everything in writing) to say he cannot have his SAR request as its a limited company. IT WAS it has been disolved since last October ish time... I cant get my head around how he can have a directors loan, indemnity guarantee on a loan that he took out whilst he was director of the business relating to bank overdraft which was forced into a bank loan otherwise they would pull it back immediately. However he is not allowed to find out if he had been sold PPI as well or what charges he had incurred... I think they have tried to stop him having this info as they think that he may be able to claim PPI back or they are hiding something.. Is it the information comissioner that you make complaints re data protection about? I dont think you can use freedom of information act with banking? Need to fire a letter somewhere to stand up for our cause.. Andrew has mentioned that of course a ltd business has to keep paperwork for 6 years but as its disolved and in the hands of the administrators we dont have this and the loan was as a result of the business and is now on the individual so they should play ball.

[DonkeyB]

Was your husband a creditor of his own business? If so, he should have a chat with the administrators.

[DonkeyB]

But bear in mind that technically any PPI refund may be due to the administrator, not you.

[Muffintop]

Husband signed as person not as director... they have him by the b &&*** he doesnt recognise the witness and there is no date on the same page as his signature, but he isnt in dispute he took out the loan... I can see that we have no proof around duress and from reading other case law it does not seem unusual for bank manager to push for someone to sign indemnity guarantee and come to their work premises.. we do not have any paperwork as all with the administrators and they have now gone and got the bank manager who got the loan signed up and did all the pushing to make an immediate statement, of course they are covering their ar...s and as they have a paper trail and we dont we dont stand a chance. Im now really worried that we shouldnt have sent in n244 to ask to defend claim,, I asked also to await all paperwork from sar but now can see they say they dont have to send it to us... if there was any ppi it would give us a bargaining tool and we know it would go to the administrators from the disolved company but it would still make the debt less or give us a bargaining tool for a full and final. SHOULD I WITHDRAW MY REQUEST TO DEFEND as Im really scared now that we will end up paying costs and could be in a worse state.. beginning to get on top of me and make me feel very stressed .. I dont see that we have a defense that we can prove other than a pushy bank manager who had a hold over a director of a company he had run for 20 years and needed the overdraft to continue.. at end of day HE SIGNED IT. I dont feel competant to defend this and we have had no luck finding a solicitor who wants to deal with it ultimately this could cost us another 10k and still not win. What do you guys honestly think try for a f and f and defend charging order? or fight first to get the sar information... we could also let administrators know that there may be a ppi to come from it

[Muffintop]

Was your husband a creditor of his own business? If so, he should have a chat with the administrators.

 

I very much doubt it but I will check later on x

[Muffintop]

Just want to say a big thanks to you all, I know I have some serious experience on this thread and I thank you guys for putting yourself out.

[DonkeyB]

I really think you need some very specialised legal advice on this. It’s possibly worth trying for a free consultation with a solicitor? Scour the internet for solicitors who deal with this kind of thing, eg. insolvency etc. Must be worth a try – at least you may get some useful pointers.

[Guest]

HI M

I don’t really understand why the bank would refuse the DPA request. If it was a personal guarantee he would have to by definition be applying as an individual. If they say they do not have to comply because he is applying on behalf of his company then they are saying the limited liability applies.

Are they saying that it is because the company is a third party and they do not have consent, if this is the case then all your husband has to do is issue a consent letter, as director. Was your husband sole director of the company?

I think you need to clarify the reasons why they are refusing the request.

They are supposed to inform you within the period if there is a reason why they cannot comply any way, but I would send them a recorded delivery letter asking for an explanation, send i it to the Data controller at the bank. Whatever you decide to do, you are going to want to reclaim any PPI.

Can’t really advise you on what you’re best option is, of course you know that. If it were me from the information I have read I would probably take the path of least resistance. It’s about damage limitation really. I would fight against any charge being put on my property but make an offer of payment that was within my means to sustain.

I would withdraw my defence and make the offer on the court form, the court is far less likely to issue a forthwith judgement if you have made offers of settlement and you may find that you do not have to go to court all.

If they say they are going to take you to court when you have made this offer then let them. You can fight any charging order they attempt to put on the judgment when the time comes you have ample ammunition.

My opinion only

Best regards

Peter

[caro]

Subject Access Requests are for individuals (subjects) not companies, so your husband would need to send a SAR in his own name, which would provide all info on dealings with him personally. Whether this would include company dealings he's involved in I really don't know.

[DonkeyB]

I think a problem is that the company does not exist any more. Therefore he has no standing as a director.

 

This is complex.

[Guest]

HI

Yes i think they would have to disclose all data in connection with the guarantee but the info relating to the overdfaft would be the property of the company so they could say that a third party was involved this would make them exempt from compliance.

 

I belive that he would still be able to give consent to records of the company as a director, provide ther was no other intersted parties. That is why i asked if he was a sole director.

Peter

[Muffintop]

After looking back through older posts feel could defend a charging order expecially as we can stomp up around 10k of the 23 or so k... as a f and f... selling everything that moves to raise money in anticipation.

Plus I have a disability .. my husband has lots of other credit cards that he hasnt paid since 2008 when he applied for ccas and never got any back (they are all well pre 2004)

he is not on a dmp though and hasnt made any token payments as he feels that he is disputing the debt and not got a response.. but this does mean he owes lots of other creditors.

Could this still go towards a defense for a charging order.

Not sure at what stage we defend a charging order, if we go to court on this one and get a judgement for charging order do we defend at the same time?

Still reading reading... I still trying to find out if information commissoner is route we could go to get our sar request upheld.. im sure there is something they dont want us to see.

[Muffintop]

HI

Yes i think they would have to disclose all data in connection with the guarantee but the info relating to the overdfaft would be the property of the company so they could say that a third party was involved this would make them exempt from compliance.

 

I belive that he would still be able to give consent to records of the company as a director, provide ther was no other intersted parties. That is why i asked if he was a sole director.

 

Yes he was sole director of the disolved company which is still with the administrators.. they have all his paperwork, he isnt supposed to answer letters or have anything to do with old company... Would that mean that the administrators could apply as they are the interested parties now in any refund from ppi... should I stop our request to file a defense? as we dont have one and we could end up paying a serious lot of money in costs when we loose?

[Muffintop]

Subject Access Requests are for individuals (subjects) not companies, so your husband would need to send a SAR in his own name, which would provide all info on dealings with him personally. Whether this would include company dealings he's involved in I really don't know.

 

Could we go Freedom Of Information Act?

[Muffintop]

I agree Peter, withdraw and recamp.. How do you withdraw a request to lodge a defense N244 without judge thinking we have wasted their time when we didnt have a defense in the first place that we were going to lodge. Should I ring court Tuesday and put a stop on it or write and say we are withdrawing defense. Does this mean we can still have it held in our local court... rather than Leeds which may as well be another country from where we are.

Do we take all our defences re any proposal for charging order with us and try to negotiate a full and final prior to court, other party wouldnt negotiate with us when husband offered a substantial payment monthly so would they negotiate a figure less than the full amount to avoid court? they wanted charging order or nothing.. should we disclose that we have lots of other debtors so this wouldnt be appropriate