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Personal Gaurentee for ltd co debts - court summonds

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Hi there, hoping one of you lovely people can help me out here...

 

Just received a court summons for personal guarantee i signed for a leasing company office computer. Ltd company i was sole director went into liquidation..

 

The court papers (received by regular main - not signed for) say they have jurisdiction in an english court, but I was on the understanding that jurisdiction would be in my local court in Scotland (were i domiciled and where the contract was performed)

 

They have attached personal guarantee ( its unsecured) no legal advise was sought, the original document was emailed to me to sign and returned by post.

I now notice there are several boxes left blank by company and a few errors

 

Boxes with errors are:

 

" The Customer " (company name) it has the the wrong building number in address and wrong digit in postcode

 

boxes blank are:

 

Marital status

Occupied status Owner/tenant

occupation

business address/employers address

how long so engaged

bankers

account number

bank address

building society

account number

building society address

 

all other entries are typed (with exemption of the "+ vat" after figure which is written in pen)

 

Im not a student and have no money:violin:

 

was going to defend with jurisdiction but i really don't want it to be diverted to my local court. wonder if i could write to company stating my intentions they may enter a payment arrangement?

 

any help much appreciated x

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Was this a loan or overdraft?

How old is the debt?


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it was a Lease Rental for Pc Equipment

July 2011

thanks for help x

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Lease Company based in Flintshire

Im domiciled Scotland

Received paperwork by email

I signed papers in Scotland

Leased Goods were sent from supplier in London

Court documents are Manchester

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IMO Scottish Law applies, I'LL alert the team for opiions.


Any Letters I Draft are N0T approved by CAG and no personal liability is accepted.

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Thanks for help. I don't particularly want it to goto my local court and have my name on daily court registers but thought I could state a defense on jurisdiction to delay it then communicate with them to enter an arrangement or would I be better just admitting the debt and providing a income/expenditure statement to court- Im now a student now with lots of debts and no savings.

 

Would the guarantee be enforceable with some much info omitted on the signed form?

 

I have done a company check on their solicitors firm seems they are a small firm and possibly not familiar with Scots law

 

business activity is recorded as Solicitors. xxx Legal Limited is run by 1 current directors and 1 company secretary. 1 Shareholders own the total shares within the company. It is not part of a group. The latest Annual Accounts submitted to Companies House for the year up to 31/03/2011 reported 'cash at bank' of £0, 'liabilities' worth £32,246, 'net worth' of £4,317 and 'assets' worth £36,395.

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Hello there. You should have the claim stuck out as it's the wrong jurisdiction.

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This was the defence I used some years ago regarding jurisdiction..................

 

Denied that this court has jurisdiction. I reside at [insert your full postal address]. This is my principal or main home and I am domiciled here for the purpose of section 41 of the Civil Jurisdiction & Judgments Act 1982 ('the 1982 Act'). I allegedly, entered into a contractual agreement with the plaintiff as a consumer. Paragraph 3(4) to schedule 8 of the 1982 Act provides as follows: "(4) Proceedings may be brought against a consumer by the other party to the contract only in the courts for the place where the consumer is domiciled or any court having jurisdiction under rule 2(i)". Rule 2(i) concerns moveable property which has been arrested and is not applicable. Paragraph 3(6) does not apply. Accordingly, this action is incompetent for want of jurisdiction and should be dismissed with expenses in favour of the defendant.


 
 

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Thankyou so much I have just replied with the above noted... fingers crossed it goes ok, I was going to email them direct to come to some sort of arrangement as I don't particularly want this to goto my local court.

 

I was looking at contractual capacity as a defense.... I did not really understand what I was signing, I was told by the company I had to sign it in order for them to agree to lend the company money,... they did not advise me to seek legal advise and much of the form is blank such as marital status etc.. This is not my debt but a limited company debt (This is a personal guarantee - unsecured) any advise much appreciated

 

many thanks again

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Was it not your own company? you stated first post that you were the sole director.


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I was looking at contractual capacity as a defense.... I did not really understand what I was signing, I was told by the company I had to sign it in order for them to agree to lend the company money,... they did not advise me to seek legal advise and much of the form is blank such as marital status etc.. This is not my debt but a limited company debt (This is a personal guarantee - unsecured) any advise much appreciated

 

many thanks again

 

Did they advise you not to seek legal advice or somehow prevent you from doing so?.

 

I doubt they are obliged to tell you to seek legal advice, and if you were unsure of what you were signing ... Why did you sign it without finding out?.

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This was the defence I used some years ago regarding jurisdiction..................

 

Denied that this court has jurisdiction. I reside at [insert your full postal address]. This is my principal or main home and I am domiciled here for the purpose of section 41 of the Civil Jurisdiction & Judgments Act 1982 ('the 1982 Act'). I allegedly, entered into a contractual agreement with the plaintiff as a consumer. Paragraph 3(4) to schedule 8 of the 1982 Act provides as follows: "(4) Proceedings may be brought against a consumer by the other party to the contract only in the courts for the place where the consumer is domiciled or any court having jurisdiction under rule 2(i)". Rule 2(i) concerns moveable property which has been arrested and is not applicable. Paragraph 3(6) does not apply. Accordingly, this action is incompetent for want of jurisdiction and should be dismissed with expenses in favour of the defendant.

 

Interesting : "I allegedly, entered into a contractual agreement with the plaintiff as a consumer."

The contract appears (from details stated by the OP) to have been between 2 businesses, with a personal guarantee from the OP to "back up" the business's application.

 

If the contract was for a business, does this affect the OP's claim to be (as a personal guarantor) a "consumer"?

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Now theres a question Bazza.

 

If it was business contract then then they can chose to continue with the english court system BUT now as they are taking action against an individual can this be classed as business or individual.

 

Some digging required now :-)


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Now theres a question Bazza.

 

If it was business contract then then they can chose to continue with the english court system BUT now as they are taking action against an individual can this be classed as business or individual.

 

Some digging required now :-)

 

I suspected it was a valid question : though I don't know the answer. It is clear the OP is an "individual" as a guarantor, but is that individual a "consumer"?.

  • Haha 1

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ok massive thanx to maroondevo52 for giving me the juristriction defence and to IdaInFife for messaging me the link!

 

basically I defended as per maroondevo52 statement above and their solicitor not happy, they sent me sent a nasty letter requesting I withdraw the defence as business debt - English court has jurisdiction.

 

I argued my case by way of

 

The Unfair Terms in Consumer Contracts Regulations 1999

 

The Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR), applies only to consumer contracts and has the effect of rendering unenforceable any terms which are adjudged to be 'unfair'.

According to the UTCCR, "

consumer means any natural person who, on contracts covered by these regulations, is acting for purposes which are outside his trade, business or profession

".

When creditors require a director of a company to give a guarantee, it is arguable that the guarantee is not given by the director 'as a director' but rather that it is given by him in his capacity as shareholder, and is therefore not given by the director in the course of his trade business or profession.

 

In addition I advised that I have no money - (which i dont) included a list of my debts and arrears along with information about the £1 token payments and/or nil payment agreed with lenders.

 

Im not sure if they will take me to a Scottish court as I honestly dont have any money to pay them, at the moment outgoings exceed me income :(

 

I will keep you updated

 

thanx so much to everyone who helped me re above - so very much appreciated x

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