Marstons HCEO for old business debts

[shell7t8]

Hi,

 

im sorry this is a rather long story but i really need some legal advice...

 

my husband had a tenancy in his ltd co name with a pub company.

 

when he passed away 2 years ago the pub co regional manager asked if i would continue with the pubs,

he had another one at the time with them.

 

Both pubs were struggling and i told them i wasnt sure.

 

They assured me of financial and business support.

 

Obviously they didnt want two closed pubs on their hands and i felt a responsibility to my husband to keep them.

 

i struggled to manage both pubs without my husband and trade suffered due to various different factors.

The rent support never happened and they often held me to ransom refusing to release orders without full rent payments.

 

At the time the rents were over £1000 per week on each pub and we were trading at just over £2,000 a week so not hard to work out why struggling.

 

I ended up putting around 50k of my own money in as each week unless i paid the rent on both,

i couldnt have any beer and if bought from somewhere else they would fine me then refuse the next weeks order until that was paid!!!

 

They never so much as kncocked a penny off anything,

i paid full cost on rent for both pubs for the 15 months

it took them to transfer in to my name despite having my name on nothing.

 

they lied to me about what rent deal they would do on the new lease

and also refused to give me proper credit terms etc.

 

as a result and having at their insistance put a brand new deposit down on what was already my pub

my cash flow took a battering and im now on the brink of closing altogether.

 

various people i have spoken to have told me that they should not have let me trade for the 15 months

it took to transfer then pub into my name as the tenancy was in my husbands ltd company name

which legally shouldnt have traded after he died since he was the sole director And my name was not on anything.

 

Is this true and if so can i do anything about it now?

 

thanks...S

[raydetinu]

I think you need legal advice!

You had no contract with the brewery?

so any money you gave them was at your own volition!

not sure if you could sue them.

was it also your home?

[shell7t8]

I dont want to sue them

 

When i had a debt advisor come in he told me money should not still be being banked into my husbands acc with the pub co as his company should not trade without a director and any monies from trade should be put into a pot and split between any creditors.

 

In essence the pubco forced me to continue to trade by insosting the money was banked into their acc and telling me i could not close the pub.

 

I want to know how lawful they were to do that as if they do end up taking me to court if i owe them money it would be nice to have a bargaining tool thats all.

 

I feel they acted very unethically given the circumstance but that alone is nit going to make them change their approach they still refuse to help despite everything i have been through.

[king12345]

You haven't got a contract with them and you're not a director or even an agent of your husband 's ltd company.

 

They've tricked you into thinking that you had a good deal in your hands and milked you for more and more money.

If you don't want to sue them (but you should) you can walk away from all of this.

After all there's no agreement in place.

 

I know that some may argue that a verbal contact is binding, but for the full lease of 2 pubs???

 

What reasonable person wouldn't want a piece of paper with a basic deal scribbled on it?

 

If you're ready to accept the £50k loss, walk away.

 

If you still want to be involved with the pubs, tell the brewery that you will only act as a salaried manager or nothing.

They'll have little other choice than accept.

[steampowered]

There are a lot of different aspects to break down here. You need to start with a clear understanding of the difference between company assets/liabilities and your personal assets/liabilities.

 

 

The starting point is that I think you are likely to be treated as a 'shadow director' of the company. This is a legally recognised concept and will effectively mean that you are treated as a director in all but name, even though you were never formally appointed. That situation isn't ideal but it isn't particularly unlawful either.

 

 

You need to carefully read the contract which the pub company had with the company in order to work out what the company's obligations are to the pub company. Perhaps the company is entitled to terminate its contract with the pub company by giving notice; or perhaps that would be a breach of contract if it is still tied into a minimum term.

 

 

If closing the pubs would be a breach of contract, you should consider letting the company become insolvent. Assuming that you did not sign a personal guarantee, the pub company would be able to claim against any asset of the company but not against your personal assets, and would therefore only get a fraction of what it is owed. You may want to appoint a liquidator if that is the route you want to go down.

 

 

By moving the pub into your own name, you have blurred the line between 'company assets' and 'personal assets'. Realistically, if you just transferred the pub into your own name without paying the company a fair price for it, that is known as a 'transaction at an undervalue' under the Insolvency Act and it can be reversed. In short I imagine that the pub will probably be treated as a company asset and therefore should be made available for the liquidator to sell if you let the company slide into solvency.

 

 

As I think you are a shadow director of this company, you need to consider the legal restrictions around 'wrongful trading' in the Insolvency Act. In short, continuing to trade if you have reached the view that there is no reasonable prospect of a company avoiding insolvency will trigger legal liability, if the court takes the view that continuing to trade in that situation resulting in causing unnecessary loss to creditors. However, you would have a defence to that if you could prove that you have conducted the affairs of the company in a way which minimises any loss to its creditors (i.e. the pub company).

 

 

If you think the business is not viable and the company is insolvent, I personally would appoint a liquidator and let it go to the wall. You can tell the pub company that you intend to do that as a negotiation tactic to see if they will offer any concessions that allow you to maintain the business. Unless there is an imminent prospect of insolvency they simply are not going to listen to you. There isn't any point continuing to fund this business from your personal funds unless you genuinely think that the business can be turned around.

[shell7t8]

The pubs were in my husbands ltd co name with two personal guarantors one my husband the other a family friend.

 

When my husband passed and the pubco asked me to take on the pubs personally i told them i wasnt sure and would have to think about it,

 

they told me if i shut the pubs the famil nd would get the bill somewhee in the region of £100k once theyd put up lost rent and barreledge etc.

 

this scared me as the friend had done it as a favour and i couldnt have them losing their home and going bankrupt because of me

 

i traded the pubs an paid them what they wanted whilst waiting patiently for them to transfer them in to my sole name, getting rid of any liability to theguarantor.

 

This took 15 months of chasing, regional managers renaging on support offers, broken promises and business recovery plans that never materialised.

 

I couldnt just close because of the threat of debt to the friend and i couldnt stay open with no beer and they wouldnt send beer without full rent being paid. It was a nightmare.

 

The debt advisor told me that as my husband had died and was sole director financial transactions ie cash paid to the pubco for rent/beer each week should not have happened and they should not have forced me to continue trading.

 

It continues to disappont me that they dont recognise this and/or how unethically they have treated this very sensitive situation.

 

Ps

 

i dont think i could argue the transaction at an undervalue thing as they did a back to back transfer so in effect my husbands companys lease ended and i took over as the new tenant

 

although i signed the documents for the trasnfer desoite not being named on anything to do with my husbands business

 

so im not sure what could be done there.

 

Presumably as his next of kin i had authority to do that.

[steampowered]

patiently for them to transfer them in to my sole name, getting rid of any liability to theguarantor.

Can you elaborate on how the transfer actually took place? Who was the lease with and did the PubCo consent to all this?

 

Just transferring ownership of the pub would not, by itself, extinguish your family member's liability under the guarantee.

The debt advisor told me that as my husband had died and was sole director financial transactions ie cash paid to the pubco for rent/beer each week should not have happened and they should not have forced me to continue trading.

The Pub Co probably did not act that ethically but I don't think you could sue them for it - the pub companies are known to be quite aggressive. Ultimately, if they had a personal guarantee, they would be entitled to call on that personal guarantee if the contract has been breached.

 

 

The important thing is to work out what the pub company could do in a 'worst case scenario' if you refused to cooperate with them, that will help you understand what leverage you have over them.

[king12345]

Ps i dont think i could argue the transaction at an undervalue thing as they did a back to back transfer so in effect my husbands companys lease ended and i took over as the new tenant although i signed the documents for the trasnfer desoite not being named on anything to do with my husbands business so im not sure what could be done there. Presumably as his next of kin i had authority to do that.

 

Reading through the lines it sounds like they made you sign a new contract for the pubs in your own name.

Correct?

If so, they properly screwed you over and there's not much you can do.

[raydetinu]

you definitely need legal advise!

sounds you and the creditors/guarantors are in a lose/lose situation.

You need to minimise your loses and affects.

[shell7t8]

Hi,

I hope someone can advise me as i have 2 days to get something straight in my head about my situation

 

To cut a long story short,

 

my husband was a tenant on a 5 year Retail Partnership Tenancy with a well known pub company.

 

The agreement was in his ltd company name of which he was the sole director.

 

He passed away 2 years ago nearly and the pubco asked me if i would continue with the pub.

 

It was my husbands dream so was a hard decision but financially it was not doign well and they promised me lots of help and support.

 

They also said that they could help financially with suppliers by changing the tenancy in to my own name. I agreed on that proviso.

 

15 months passed and 54k of my own money went in to the pub as each week they said if i didn't pay the full rent (had prmised concessions which never materialised)

i couldn't have beer and if i didn't have beer they'd fine me for that too.

 

As a family member was a guarantor on the tenancy i felt unde ra great deal of pressure to continue trading so gave them everything i had with the vision that once it was in my name the pressure would reduce as they were reducing the rent at that point.

18 months on the tenancy finally transferred.

 

I repaid my husbands outstanding amounts on the account and it was all swappe over

 

hwoever they charged me a new deposit and made me pay for rent and beer upfront saying it was "standard practice" for a new tenant.

New tenant!!! I had been paying the rent for the last 2 years out of my own pocket!

 

things came to a head as they had taken all of my working capital and never came through with the lowered rent deal until a copule of weeks ago by which time i'd given 6 months notice.

 

I have not been able to pa ythe rent for a few weeks and have since had a fine for not buying beer so my debt to them is increasing.

 

Last week they sent in a bailiff company to demand outstanding money owed. I had no notice of this.

 

The bailiff took all the cash i had on site told me that the lowest amount they could accept is £1000 a week starting this coming tuesday!

 

I have no way of paying that.

He told me "off the record" that if i didn't have it just to pay whatever i could and it would keep them at bay

then told the woman that lives on site that if i didn't pay it tuesday, theyd be back to evict her within 7 days.

 

Can this debt collection company do this

- surely the pubco have to go to court to get an eviction order as i am on a proper 5 year tenancy?

 

I am worried that i will nto have time to get my personal belongings out - or sort alternative accommodation if they come on tuesday to change the locks so i need to know waht the legal position is really

 

. I know its my fault for not paying the rent although they changed the goalposts every 5 minutes, they put a new rent deal in place that i was meant to pay by mid day fridays but then on the second week demanded some off the arrearswhich wasn't agreed.

 

I questioned it and they didn't get back to me until 530 on the same day and then said i'd broken the agreemetn and they then wanted everything upfront again for the month. I had no way fo doing that

 

So sorry for the long story - that is the short version!

 

S x

[fkofilee]

Who is the collection company?

 

Yes they would need to get a court order to do so...

[unclebulgaria67]

Unfortunately, I think they can in this situation.

 

You should have obtained legal advice from a Solicitors about actions you could have taken.

 

Because the pub company are your landlords they hold all the power and the only way you could stop them is to go to the courts. Not sure what application you would have to make, as the bailiffs are probably acting on instructions of the pub company and not a court order.

 

https://www.businessdebtline.org/EW/factsheets/Pages/BDL16%20BDL%20EW%20Publicans/Default.aspx

 

Business Debtline may be able to provide more info.

 

Yes they would need to get a court order to do so...

 

Not sure this is correct, as someone on here corrected me on this.

 

If you are a commercial tenant and do not pay the rent due, they can just come to the premises without a court order.

 

To evict I think they just need to provide notice.

[fkofilee]

Yes but if the person refuses to leave, doesnt that then mean they need an eviction notice?

[unclebulgaria67]

If they refused to leave then yes I suppose they would have to get a court order, but they would add to the debt, as this would be additional costs they would apply.

 

There is a charity who may be able to help with advice.

 

http://www.supportandcare.org/

[fkofilee]

shell7t8

 

Follow uncleb's advice , its sound.

[shell7t8]

Hi all,

This is a rather long story sorry, i will try to shorten it!

 

3 years ago i took a career break from my bank job to care for my husband who had terminal cancer.

He died 1.5 years ago.

 

He had his own business at the time which was struggling since he hadn't been able to be proactive in it for some time.

At that point he had 2 pubs with a well known brewery.

 

The brewery asked me to keep the pubs on and promised support both financial and operational.

This never came to force

 

i ended up ploughing my own personal savings in to the businesses with the continued "hope" that things would turn around and i could keep my husbands legacy going.

 

They forced me to keep the pubs trading

(i am looking in to this as a legal matter separately as dont believe it was moral or ethical or legal) in my husbands ltd company (i was not named as director) until 18 months later they transferred the one pub (other one lease ended) in to my name. A host of other things happened due to their delay and i ended up starting after the transfer with no working capital.

 

Trade didn't improve and i ended up giving notice to terminate the tenancy which has now happened.

 

As a result of it i now have almost £9k worth of utility bills and 3k worth of council business rates and tax bills. They are all in my personal name t/a the pub name. The brewry also want to charge me £15k for the privilage of leaving early!

 

I also have a 3k personal overdraft and a 3k debt which is under high court enforcement.

 

I know my real option is to go bankrupt but i'm hoping i can return to my banking job and going bankrupt would definitly mean i couldn't. Would an IVA be a viable option?

 

At the moment i only have around £100 of disposable income as i am also behind with my mortgage payments and other personal house utilities etc.

 

If someone could advise that would be great - can i have an iva which covers both business and personal debts and if so will the creditors agree despite my having such a low amount ot spread between them?

 

Regards

[mikeymack2002]

Hi..

 

1st of all sorry to hear of your loss..

 

With the amount of debt you have and that it is spread over several creditors, you should firstly check your credit file and see what is what. Try noddle it is free.

 

Then once you have a fuller view of your finances please come back and update your thread with as much detail as you can post.

 

You have to worry about the EA as this is a priority debt and has further issues attached to it. Please check your file asap then update for more advice...

 

As far as your business rates go you need to contact the LA urgently before the obtain a liability order (LO) this will hurt you more financially and you could end up in serious financial mess than you are now...

 

With other creditors this will be easier to deal with once you post up all of the debts you have..

 

Don't let the LA fob you off with more than you can pay, but please make an arrangement to pay now before it is too late. Because if the LA get a LO you will then have an exceptional amount of fees to pay, this will cripple yo more than ever now especially with the changes to the law that happened last year...

 

Utility and credit cards will have to take a back seat and you MUST deal with the EA (Bailiff) / (HCEO) and the LA 1st...

 

I know this is not what you may want to hear regarding being a bankrupt but it could be your only option... The rules for this will be changing in October so you may now want to read up on this again

[shell7t8]

Thanks all, i have spoken with the citizens advice and have an appointment tomorrow.

 

The LA have not been too horrid and had agreed to give me 4 weeks to get myself sorted. They have said they will spread it over 12 months so it works out at around £300 pm.

 

I have a CCJ that was issued at the business address for an EA that has come to my home address from severn trent. They wont accept an installment plan but the CIB said i could apply to have it set aside. That would be ok if i could afford the £155 fee to do that

 

I have considered an IVA but dont know if business AND personal debts can go on to the same one. Would a debt management programme be accepted considering the level of debt and the fact there may well be some that will come from the business which i am not aware of yet?

 

i wish i knew hte answer as this is all keeping me awake at night, making me totally miserable and unproductive.

 

x

[mikeymack2002]

An IVA will still show up on your credit file so would affect your wish to return to banking, Although this is an option it will still cause you issues. Glad to hear you have dealt with the LA.

 

Did you check your credit file yet? This is a must now before you end up having more troubles in the near future. As far as Courts costs go you may qualify for a reduction in the fee see the form called EX160a please see here

 

 

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/ex160a-eng.pdf

in case the link get broken I have added the PDF for you to read as well... See my attachment

 

In the meantime have a look at our Legal library here

http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?403-CAG-Library

you may find even more useful information that you can use...

[shell7t8]

Hi,

Thankyou Mikeymack2002 for the info

 

, i have just downloaded the form to get it set aside and downloaded my bank statemetns.

 

I have just had a Wftc award notification through so will send that and it says on the form that widowed parents allowance is not required (proof of) so will save me hunting for that.

I will post it all off tomorrow.

 

I'm just worried about the bailiff coming.

The enforcement people said unless i agreed a "realistic" payment plan today and made the first payment they couldn't stop him coming and that i should let him in and talk it through with him.

I'm not sure about this as i had an issue with high court enforcement previously to do with a ccj i had for my husbands funeral costs and everyone then said dont let him in.

 

In the end i went to court and it wasn't set aside but the funeral place agreed to put a charge on my property and let me pay £50 a month. Even that is a struggle to be fair so entering into more payment plans is not something i feel i can realistically do at the moment.

 

I am hoping that i will feel better after speaking with the CIB, will they tell me my options and help me go forward with whichever one?

 

I know the IVA has implications also but the thought of waking up every day worrying who is going to come next or what ccj is going to be issued next is keeping me awake at night and making me totally anxious,

 

i have started having panic attacks also and am worried about my daughter seeing me like this - i have always been so strong i'm just not sure how much more i can take.

 

I feel like i have been waking up with this dread in the pit of my stomache for years now - at first it was about my husband and now its about his debts (and my own).

 

Will i only be able to enter in to an IVA if i can prove i have disposable income?

That is hard being self employed as at the moment, i dont have any!

 

How long does it take to set up and will the HCEO leave me alone until then, i'm scared to answer the door aswell as the phone now !

 

Also with the iva, the ccj i had for the funeral costs put a charege on my home - does that stand and i have to keep up the repayments to them despite the iva or can they be included?

 

Thanks everyone...

[mikeymack2002]

To be honest with you some of your debts are very concerning and part of your thread should be in the bailiff section where you would get better assistance ok. I will ask admin to make the move if it is appropriate!!!

 

I have just sent an email to Admin to split your post up for you. Some of the issues with the EA (Bailiff) needs a closer look, the advice you will get will be better for you... I hope you approve.

 

Ok lets attack the EA issue first as this is most important. Has the EA (Bailiff) been inside your home yet? if so please lets us know these details, what was said and done too, did you sign any paperwork at all?

 

Some extra news if you can call it that the new EA will have to be informed that you are under the control of the HCEO and this takes priority in this case, several other caggers will be along soon to help as well. sit tight for now and please stop worrying.

[citizenB]

Have you spoken to National Debtline as well ?

 

https://www.nationaldebtline.org/

 

They have a free telephone helpline and they are open until 9pm

 

 

Call us for free

debt advice on

0808 808 4000

 

Monday to Friday

9am to 9pm

Saturday 9.30am to 1pm

 

 

[ploddertom]

Can you tell me which Form you have downloaded & what you intend to do with it?

You also mention a CCJ from Severn Trent - was this for the business or home?

What status did you trade as?

[mikeymack2002]

PT I think the form is the ex160a for the CC something about not being able to afford to pay for a hearing of sorts...

[shell7t8]

Hi Folks, update on this

 

Marstons have made about 6 visits now and last week sent me a letter telling me that on the 27th they wil be attending with a "removal contract". Is this different or should i continue as normal and not let them in? I have also made them aware i fit in to the vulnerable category but they have just ignored this. I am a single parent, recently bereaved and limited income.

 

I rang the court today to see what had happened to the application i made and they said they wrote back to me on the 9th september to say that i hadn't filled the form in correctly so now got to start again. I definitly did not receive the letter

 

I am worried as on wednesday i have a new boiler being fitted and so my front door will have to be open most of the day for the workmen to be in and out. What will happen if they come on that day? If the door is open and i answer it and speak to them does taht then mean they can come in?

 

Apologies, i posted on another thread some time ago and have just posted an update but am in desperate need of advice and am not sure if the old thread people would still read...so sorry if duplicated.

 

Long story short,

 

my husband had a pub and passed away some time ago. As he had been sick for some time the busness was suffering and i took over responsibility until the notice period could be served

 

(the breewry forced me to do this as threatened me with massive debts if i just shut up and walked away even though wasn't in my name).

 

The businses ceased trading around May time and there were several creditors.

 

I wrote to the brewry to ask them to forward any mail to me and provide them with new address details.

My intention was to visit the cab to get advice on what my next stages were once i'd received all of the final bills.

 

In the meantime,

severn trent issued a ccj at the pub address which i didn't know about.

I then received a notice of enforcement at my home address in august.

 

I spoke to marstons who issued it and they said nothing they could do, not interested in any payment proposal etc etc.

 

Spoke to the court to ask their advice and they said i could apply to get the ccj set aside as it was issued to a different address so i didn't get chance to respond properly.

 

I sent that paperwork off in august straight away but having not heard anything rang them ttoday

 

they said they'd written back to me to say some of the paperwork wasn't complete so got to now got back to the beginning and start again.

 

I have advised marstons of this and asked that they stop vistiging until this is sorted. also told them i think i fit in to the vulnerable category as i'm a single parent and recently bereaved with no income etc.

 

I have written to severn trent direct but no one is taking any notice.

I am worried as last week they sent another letter saying on the 27th they would attend with a removal contract.

 

Does this mean they will enter the property or can i continue to just keep the doors closed.

 

It is hard as i am having a new boiler fitted wednesday and i'm worried that the engineer will be in and out all day and inadvertantly let the bailiff in should they come at that exact time!

 

What are your thoughts please?

This whole thing si keeping me up at night

- i have tried my best to keep on top of everything but am starting to feel hopeless its one thing after another since my husband passed and i really dont know if i can cope for much longer.

 

Thanks for any advice in advance folks...

S