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Tenancy Guarantor issued with County Court Claim***Claim Dismissed***


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Hi I acted as guarantor for a friend of mine on 31/10/14. He has since fallen into arrears and been evicted from the property. The first I heard about it was in a letter from the landlords solicitor on 28/11/16.

 

In response to the solicitors letter I did admit to being guarantor. I also advised the solicitor that I am not in any financial position to pay this debt as I do not have any income at this time after losing my job in October 2015 and trying to get my photography business up and running, with no success as yet.

 

I have now been issued with a County Court claim, however, in the correspondence I have received there is no mention of me as guarantor on the Assured Shorthold Tenancy Agreement and there is no other document (i.e written guarantee or deed) where I am mentioned or indeed have signed to act as guarantor. The tenant has offered to repay the debt over a period of time but the landlord has refused his offer.

 

Can anyone advise me what to do as I have no means to pay this debt and unless the solicitor or claimant can produce a written guarantee or deed then would I be right in thinking they do not have a leg to stand on? and why has the landlord come after me if the tenant has offered to repay over a period of time? but more importantly what do I do put in my defence form?

Thanks for any help given

Ed

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Hi

 

As guarantor Did you sign any documentation and was it witnessed also do you have a copy of the documents?

 

You as Guarantor have provide the Landlord with that extra security because you have accepted liability for the tenants defaults on whats in the agreement so the Landlord has come after you as Guarantor. (this all depends on the wording of the agreement)

 

We really need more information to be able to assist you further

 

Is it possible you could post the claim form here minus any personal information, please see this CAG link on how to upload documents (we prefer them in PDF Format):

http://www.consumeractiongroup.co.uk/forum/showthread.php?431533-How-to-Upload-Documents-Images-as-PDF-on-CAG-Immediately-(you-do-not-need-10-posts)

How to Upload Documents/Images on CAG - **INSTRUCTIONS CLICK HERE**

FORUM RULES - Please ensure to read these before posting **FORUM RULES CLICK HERE**

I cannot give any advice by PM - If you provide a link to your Thread then I will be happy to offer advice there.

I advise to the best of my ability, but I am not a qualified professional, benefits lawyer nor Welfare Rights Adviser.

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We really need to see a copy of what you signed with date & sigs.

 

 

When you got into financial difficulties, did you not consider writing to LL & T saying you could no longer act as G for friend after x weeks?

Do you own a property to which a charge can be applied?

Unless you can discharge this debt, (unless dismissed by Judge) expect to get a CCJ & consequent bad credit rating,

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how long was the AST for? If it was for a year then your obligations cease at the expiry of that agreement. They cant make a contractual obligation by assumption that you will continue to be a guarantor, they have to ask you if that is still the case and you then either agree or dont sign upand the LL has to make a decision about the risk of the tenant not paying the rent..

The other plus point for you is that the tenant made an offer to pay that was refused. The LL will have a hard job explaing why they are suing you when the tenant is mitigating the LL's losses.

so how long was AST for and when did tenant get into arrears? By responding to sol's letter you may have created a contract where one didnt exist before. Solicitors do waht they are paid to do and say what their client want them to say, this is not the same as being right.

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Hi

I honestly can't remember if I signed any documentation and therefore do not have a copy.

I have included all the paperwork I have received received regarding this claim.

Does the solicitor not have to provide me with everything he has in his claim against me? There is not one piece of evidence signed by me stating that I was guarantor.

Also the Assured Short Term Tenancy Agreement only states from 31/10/14 for six months up to and including 30/04/15.

Thanks

Ed

JMC 2.pdf

County Court Claim Against Me.compressed.pdf

JMC 1 TENANCY AGRMNT.compressed.pdf

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Thread moved to General Legal Issues in view of the court claim.

 

edmurph13 please continue to post here to your thread.

 

Regards

 

Andy

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no, they dot have to supply anything at this stage but you are entitled to see it before the court hearing.

Your liability would have been only for the 6 month tenancy, they cant autoenrol you into something like this so they will lose the claim but you have to defend itto make that happen.

So, you acknowledge the claim and tick the box saying defend in full (you can use moneyclaimonline if you prefer) that gives you another fortnight to submit a skeleton defence Something on the lines of "no such contractual obligation existed at this time so no cause for action by the plaintiff against the defendant"

The reason they are doing this is they are hoping that you dont defend and they get a default judgement. 85% of the million small claims summonses go unanswered so an easy win for the plaintiff. Once you become one of the 15% who can be bothered to fill out a small box on a form you will have made their job an impossible one as they( the lawyers) are now losing more money for their client, who may well have a claim against them for the bad advice.

Hi

I honestly can't remember if I signed any documentation and therefore do not have a copy.

I have included all the paperwork I have received received regarding this claim.

Does the solicitor not have to provide me with everything he has in his claim against me? There is not one piece of evidence signed by me stating that I was guarantor.

Also the Assured Short Term Tenancy Agreement only states from 31/10/14 for six months up to and including 30/04/15.

Thanks

Ed

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The law says that a guarantee can only be given in a signed writing.

 

Do you recall ever signing a guarantee?

 

If not, then I suggest putting in a short defence denying liability on the basis that you do not recall agreeing to guarantee the debt, and that section 4 of the Statute of Frauds 1677 requires a guarantee to be in signed writing to be enforceable. Feel free to post a draft of your response on the forum if you need guidance.

 

I would also suggest writing to the claimant's representative and asking for a copy of any guarantee which they claim you have signed. If they can provide a copy of a guarantee signed by you, then realistically you would not be able to defend the claim so should try and negotiate a settlement. If they can't or won't provide a copy of the guarantee, then defend the claim.

 

You need to be very careful to make sure you meet the court deadlines for filing your acknowledgement of service and then the deadline for filing your defence. If you fail to meet the deadlines, a CCJ will be issued against you without ever being looked at by a judge. The deadlines are short. They are explained here: http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-2016**(1-Viewing)-nbsp.

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And Further to steampowers post you can request it by way of a CPR 31.14 request as its referred to within their particulars of claim....then they will have to disclose it before or at standard disclosure.

 

Andy

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The standard rent guarantor agreement includes the clause continuing the guarantee beyond the fixed term and until tenant moves out.

So your only hope is that they lost the agreement or for some reason it is not standard and your guarantee expired at the end of the fixed ast.

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Most Judges no longer accept the 'standard' RG clause.

Indeed, the AST actually ends with the fixed term, or 'term certain' in old money.

They also believe it unfair to saddle G with an 'open ended' Agreement. T could remain for several years.

I have a T coming to end of fixed term shortly, so I wrote to T to suggest it would be helpful for G confirmed in writing, that he was willing to remain as her G during SPT, otherwise she would have to provide new G. Young single parent in receipt of LHA, no deposit.

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We could do with some help from you.

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  • 2 weeks later...

I sent CPR 31.14 on 14/02/17 via recorded delivery and it was received signed for on the 15th asking for the written guarantee agreement and the AST agreement where I am mentioned as guarantor, as the written guarantee agreement was not provided in the POC and the AST agreement did not mention me as guarantor. To date I have not received a reply from the claimants solicitors and I only have until 28/02/17 to file my defence. The AST only ran from 31/10/14 to 30/04/15.

What is my next course of action - I'm assuming I need to get my defence in and if so any help in doing so will be greatly appreciated.

Ed

CPR 31.14.rtf

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What date is on your court claim edmurph ?

 

Andy

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I have just received confirmation from claimants solicitors with guarantor agreement and they have now added my name to the AST where there was none before. they have also stated in their accompanying letter that the letter I sent them in reply to their original letter asking for payment(prior to them putting in the claim) that I admitted to being a guarantor and that they fail to see how I can now suggest that I intend to contest. I will upload the docs later.

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Please find attached the sols letter, guarantor form (not agreement !!!) and copy of the page on the AST where the sols have now printed my name, it was not on the AST I received previously from them with the claim pack (nothing else in the AST has changed so only including that one page). The tenant has advised me that he never signed another tenancy agreement after this AST which only lasted from 31/10/14 until 30/04/15. In the guarantor form the LL's agent advise that he should 'ensure that the guarantor signs a suitable agreement. It should be signed before the tenancy agreement. If they cannot sign in front of you, make sure that the signature is witnessed by someone you can trust, who can vouch for their identity.' There is still no such guarantor agreement been supplied to me - I do not think one exists. Also as there has never been a guarantor agreement ever signed by me does this mean that as advised previously on CAG that my liability as guarantor ends at the end of the AST.

Can the court agree as sols state in ltr that 'client to apply to strike out any defence on the basis that the claim has already been admitted'.

Also they are using bully boy tactics 'seeking payment of our Clients costs on the basis of unreasonable behaviour in accordance with CPR 27(14)(g.)

Please advise of my next course of action.

Thanks

Ed

convert-jpg-to.pdf

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Make a start on drafting your defence ed and post here. Dont go into specifics keep it vague ...this is a defence not a witness statement.

 

Include the main points you wish to refute..not the reasons...and we can polish and tweak it fit for purpose.

 

Regards

 

Andy

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Here is my draft defence can you please suggest any amendments to make it more fit for purpose

 

Defence

 

I the defendant admit that I have acted as guarantor for tenant x, however this was only for the period defined in the Assured Short hold Tenancy Agreement from 31 October 2014 to 30 April 2015.

 

Any claim made by the claimant and his solicitor for debt incurred by the tenant for a period of time not covered by these dates is not the responsibility of the guarantor.

 

There is no signed documentary evidence that I stood as guarantor for any period after the said 30 April 2015. I am therefore asking the court to deny the claimants application for all debt/costs made against me.

 

The claimants solicitor is also seeking costs for his client on the basis of unreasonable behaviour in accordance with CPR 27(14)(g) when all I have done is legally request evidence of a signed guarantor agreement under CPR 31.14, which they have not provided me with, only a guarantor form and another copy of the Assured Shorthold Tenancy Agreement which now has my name printed on it.

 

The Assured Short hold Tenancy Agreement which was with the particulars of the claim did not have my name on Page 5 under para 1.12 THE GUARANTOR (if any): BLANK.

 

The claimant’s solicitor is also advising his client to immediately apply to strike out any defence on the basis that the claim has already been admitted. I do not admit to any claim as guarantor outside of the dates defined in the Assured Short hold Tenancy Agreement covering the dates 31 October 2014 up to and including 30 April 2015.

Edited by Andyorch
Paras
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ed if your around today it would greatly assist me if you could type out verbatim the contents of the claimants particulars...it easier to cross check and refute if they are on the thread.

 

If you could get this posted up sometime today and then I can draft a response this evening.

 

Regards

 

Andy

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ed if your around today it would greatly assist me if you could type out verbatim the contents of the claimants particulars...it easier to cross check and refute if they are on the thread.

 

If you could get this posted up sometime today and then I can draft a response this evening.

 

Regards

 

Andy

Hi Andy - I'm not about until late this evening/night to do this as don't have laptop or the paperwork. Everything I have received is already on the thread as attachments. Hope this is OK.

Ed

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Yes ed I am aware its already on the thread....as a PDF...but thats not useful for me to cross check I need the particulars on the thread when you are able to.

 

All will become apparent..... when you draft a defence in response to a claim..you must refute/agree with each and every point of the claimants particulars...in order of pleading.

 

Easier on the thread than me having to open another window or print the pdf to respond

 

This then makes for a CPR compliant response.

 

Ta

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His Andy will get it on there as soon as I am home tonight. Thanks for your help again. Do you also want what claimants sols have put in there most recent letter regarding me already admitting to the claim ( their words not mine)?

Ed

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Not really its irrelevant what they threaten/state separate to their pleadings..you only respond to their particulars...save that for later in the process at witness statement time.

We could do with some help from you.

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