CCF [Travis Perkins] Personal Guarantee help

[Olli]

I have a very similar situation. The only difference being my application form was signed in May 2006 with CCF who is owned by Travis Perkins. We also had a long break in using them before incurring these new debts that are now due from my previous company that went in to administration on 8th March 2011. I honestly believed that our credit was that of our Travis Perkins account and not of the historical CCF that hadn't been used for years. So much so that when we collectively reached our credit amount between the two companies the account was put on hold.

 

They have been threatening legal action now for nearly a year and I have just received a 7 days notice before issuing a statutory demand. They to have been taking 2-3 months to reply to each letter until now.

 

I am very interested in your comments toddle2u and would very much welcome your advise on my situation. Whilst it would appear the form is similar to that of Teebos I do feel that never does it mention personal guarantee. I read it more like they as directors we guarantee the company will pay for goods received! We would never knowingly sign a personal guarantee and didn't even have one for their parent company Travis Perkins.

 

This is obviously a really distressing time and would welcome any advise on our situation as it appears to be gaining speed in the wrong direction.

[toddle2u]

Teebos - good news on that result. 75% discount with a time to pay arrangement isa result.

 

Olli - Could you post up a copy of the account opening form as I have had a look at the one on the CFF website and that clearly contians a PG. As yours was signed in 2006 I am guessing it is signficantly different. Remember to remove all personal information

[Olli]

Thanks for the response. Please see document removed. (I hope it worked) Having looked at their new form it does appear quite different.

 

My partner and I as a general rule do not take out personal guarantees. My thoughts on their form is that if they supply goods to our company we would guarantee payments from the company for those goods but this goes as far as the companies limited liability.

 

Also this account I believe from memory laid dormant for some time after we first set up the account and used them. It was when we started using them again in mid 2010 the debt they are chasing has been incurred from. Our credit with Travis was double that of CCF yet we had no guarantee with them.

CCF Forum docs.31.01.12.pdf

[toddle2u]

Olli - I have spoken to a few lawyers about these PG's recently and all but one have said to me 'if it says guarantee on what you are signing that's what you are signing' so in this instance it says you are signing a credit guarantee and therefore liable. Personally I think there line of thinking is a load of bollox and you need to challenge the validity of it using my arguements posted in post 13 of this thread. Be prepared to do a deal with them though as if it goes to court you need to be very sure of your arguments and you might come up against a judge who has the same line of thinking as lawyers.

[Olli]

Hi Teebos. I have a very similar situation to you and am just about to respond with a similar letter to yours as advised in note 13. Could you tell me if you did the whole letter of 19.09.11 without prejudice or was it a without prejudice offer of the £500 only at the end? Also am i correct in thinking right t the very beginning they issued you with a stat demand and you were successful in petitioning the court to have this set aside? The reason i ask is they are threatening me with bankruptcy procedures (which i believe commence with the statutory demand) if i don't pay my debt within 7 days.

 

Thanks in advance.

 

Hi. I sent an email containing the advice kindly received from toddle2u with a without prejudice offer of £500 to finish the matter on the 19th September and have had no reply. I am emailing again this week for a response and if there is any movement I'll update this thread.

[toddle2u]

Olli - I would do 2 letters. One conrtaining youir arguements as to why you do not believe the PG to be valid as per post 13 and another offering a settlement. I would mark the settlement letter 'without prejudice save as to costs'.

 

In the first letter also state that you note that they are intending to serve you with a Stat Demand and that they should take this letter as formal notification that this matter disputes their claim and that should they issue you with a SD you will apply have it set aside and their actions amount to an abuse of process. Further you will produce as copy of this letter at the set aside hearing and apply for costs against them

[Olli]

Thank you toddle2u for all your advise. I have sent both of these of to them today.

 

Obviously depending on their response I was wondering if the fact that we did not use them for nearly 18 months prior to incurring the current debt would have any bearing? We opened the account in May 2006, used them sporadically until the end of 2008 and then not at all until August 2010.

 

Also reading the form again, there is no mention of personal guarantee anywhere. If this is supposed to be an agreement between both sides should this not be absolutely clear! I still believe it reads that as directors we guarantee payment from the company in return for them supplying us goods. This is then only as good as the companies limited liability. I've noticed they've added a lot more content to this section in their current forms. Is this because the older format was misleading and ambiguous?

 

Just a thought.

[toddle2u]

Obviously depending on their response I was wondering if the fact that we did not use them for nearly 18 months prior to incurring the current debt would have any bearing?

 

No this won't have a bearing on it as in their eyes the debt is due and only becomes statute barred after 6 years.

 

I've noticed they've added a lot more content to this section in their current forms.Is this because the older format was misleading and ambiguous?

 

This is the reason I belive they are unwilling to test the case in court with the arguements that you have presented to them. If they lose it opens a whole can of worms for them which is why they would prefer to do a deal and accept a substantially lower amount

[Olli]

Thanks Again

[Olli]

Hi Teebos,

 

I've now had a very similar response to yours posted on 17th December. Could you tell me how you responded to that in order to get the settlement you agreed upon. Thanks

 

Well, a result has been reached. They have agreed to an initial £500 with another £500 in monthly instalments of £20. A pretty good result so thank you for the advice given here. Still ****ed off I have to pay anything but should be annoyed at myself for not reading what I was signing really!

 

Thanks again.

[Olli]

Hi Toddle2U,

 

I have now received 3 responses from CCF. 2 of which were sent to my old address and it is only by chance that the person who purchased the house nearly 1 year ago has passed me these on.

 

The first letter on 13th Feb, sent to the new address I’ve given them obviously refers to my without prejudice offer declining my offer of £450 as full and final settlement and requests a response by 4pm on 24.02.12 otherwise they will issue Bankruptcy proceedings against me without further warning. I did not receive this letter until 24.02.12 as I was away as I informed them previously and so I acknowledged this on 24th February, but could only post it on 27th Feb.

The second and third letters were sent on 16.02.12. One of which was without prejudice again rejecting my offer, stating the personal guarantees were valid and that unless they receive a more realistic offer of settlement they are instructed to proceed with further legal action.

 

The third letter (sent to my old address) responds to the points I raised in my previous letter and is as follows:

 

I. You allege that the Credit Guarantee was misrepresented to you. For an allegation of misrepresentation to succeed you need to be able to demonstrate that Travis Perkins made a false statement to you with the intention of inducing you to sign the Credit Guarantee. The Application Form was completed by you in your own time on or around 8 May 2006 and submitted to CCF, CCF received the Form on 9 May 2006. In view of the fact that you had an opportunity to take legal advice before signing and submitting the completed Form to CCF we do not consider your argument of misrepresentation would succeed.

 

2. You state that you signed the Application Form in your capacity as Director rather than in a personal capacity however, there is nothing on the Application Form to demonstrate that you signed in your capacity as Director. In any event CCF would derive no benefit from a Personal Guarantee valid for the lifetime of the Company. You state that there is no mention of the Guarantee covering you in a personal capacity however the wording of the Guarantee makes it clear that as a result of signing you arc agreeing to "jointly and severally guarantee payment of all the financial obligations to CCF Limited”.

 

You refer to the Unfair Contract Terms Act 1977 however, you have not traded with CCF Limited in your capacity as a consumer, you have traded as a business with another business and therefore the Unfair Contract Terms Act 1977 is not applicable in this situation.

 

3. As already stat.ed, you have not traded with CCF as a consumer, you have traded in a business capacity with another business.

 

4. You allege that the Personal Guarantee does not meet the "reasonable test" and again you refer to yourself as a consumer however you have contracted with CCF in a business capacity rather than as a consumer and we therefore reject your assertions for the following reasons:-

 

i) You state that you had no intention of entering into a Personal Guarantee. You were under no obligation to sign the Personal Guarantee contained within the Application Form but the fact is you did and you are perceived to have read and understood the same. Therefore, as a result of signing, you are agreeing to be bound by the terms contained therein.

 

ii) The Personal Guarantee is distinct from the rest of the Application Form. It is contained within it's own separate section, it is clearly headed in bold type and the terms are clearly stated.

 

iii) You have not traded with CCF Limited as a consumer, you have traded in a business capacity with another business therefore the Unfair Contract Terms (Consumer Contract) Regulations 1999 do not apply.

 

iv) In circumstances where you contracted in a business capacity with another business there is no imbalance in the parties' bargaining power. You completed an Application Form for a Trading Account with CCF, the terms of which were set out at the outset and were not open to negotiation. If you were not prepared to be bound by the terms contained therein then you should not have applied for an account with CCF Limited.

 

For the reasons set out above we maintain that the Personal Guarantee is valid and enforceable against you and your co-Guarantors for all sums outstanding. In the absence of your proposals for settlement within the next 7 days, we will be proceeding with further legal action.

 

Like Teebos i would like to know how many other individuals have signed this not knowing they were entering into a personal Guarantee.

I'm also not sure why their Parent company didn't get us to sign the same form? We had an account with Travis before opening this account and again never signed any guarantee. They too were owe money but have never pursued us personally.

 

Sorry for the long email. I look forward to hearing from you.

[Olli]

Hi Toddle2U,

 

I'm not sure if my last thread got through to you ok. I would be grateful for your advice as you seem to know what you are talking about with these matters.

 

Regards,

 

Olli

[toddle2u]

Olli - Sorry short of time at moment so will have to be brief

 

The misrepresentation is that the fact that you were signing a PG was not adequately brought to your attention. What they are saying in section 4 ii) is not correct and you need to tell them so.

 

With regards to the rest of their arguements it is all based on you not being a consumer. You need to point out to them that under the ruling in R & B Customs Brokers Company Ltd v United Dominions Trust Ltd [1987] EWCA Civ 3 you are a consumer and are protected by the rights as detailed in your orginal letter and that you are willing to go to Court to prove this.

 

If you want to make an increased offer to settle that's up to you.

[mike001]

Hi, Ollie

I was wondering if you could give me an update on how your dispute is going?

thanks

[Olli]

Hi Mike,

Very Slow. Still nothing resolved as they take an age to reply to anything. They are still adamant that they have a good case but are still negotiating a settlement, slowly. I have given them everything I am able to in relation agreeing a settlement and hope they agree it. If not we will have no option but to take it to court. In which case they may end up with nothing as I don't have the funds to fight this or pay what they are after. And at the same time strongly stand by the fact that I was totally unaware that I was entering into a personal guarantee at any time along with the other facts raised on the earlier threads.