Just Cash Flow PLC business bank personal guarantee Court Claim.

[MOSS 41]

They asked for summary judgement without hearing - which they didn’t get - a hearing was ordered , does that mean the court isn’t convinced on the face of it , enough to grant the judgment ?

 

i can write a witness statement - do I write a witness statement directly in response to the points they raise - 

rather than when I defend the case as a whole which would me much longer and comprehensive witness Statement on all points 

 

or do a long one here (application hearing)  , with covering skeleton argument sheet ?

[AndyOrch]

Not particularly...all applications for SJ/SO require a hearing..its something that cant really be judged without a hearing....put that down to lack of experience or ignorance to try to save £155.00 ...whichever.

 

Yes you do draft a statement in response...as I have already advised..which must be submitted not less than 7 days pre hearing.

You can use the basis of your proposed defence above...if there are any important points they have decided to conveniently leave out....but its far better to be directed by the points of their statement and what they will be relying on...it must be formatted same as theirs and finished with a statement of truth.

 

Witness statements do not require a Skeleton Argument.

[MOSS 41]

Thankyou - 

 

i shall do as advised , any tips or tricks to make sure summary judgement avoided 

 

for instance , I read judges don’t like to award judgments when edit complex matters are involved etc , so that would a clear point to provide evidence on - with the falsified debenture affecting execution etc 

[AndyOrch]

Allegedly ......Well thats something for you to address within your statement backed up by evidence by way of exhibits...I have had to edit your previous post referring to this amongst other remarks please refrain from making these statements within your posts and putting the forum at potential risk of liable remarks.

[MOSS 41]

so i have manged to get the unilateral notice removed against my property, as i did a UN4 and said they cannot provide evidence of a personal guarantee, they obviously couldnt and didnt , so the notice was removed by the land registry

 

They are just now 17/11/2020 gone a re registered the exact same unilateral notice again!!

so i have finished doing yet another UN4, to remove yet again.

 

How do i stop them repeatedly doing this without merit? i spoke to the land registry who said nothing they could do, as they are just a registration service and register anything that gets sent.

 

This is unfair and an abuse of the land registry charges system.

 

 

 

 

[AndyOrch]

How much is the court fee for submitting the  UN4 ?  Perhaps consider issuing them a court claim to reclaim your fees and inconvienience.

 

https://www.irwinmitchell.com/news-and-insights/newsletters/im-on-the-money/im-on-the-money-issue-two/unilateral-notices-exploding-the-myths

[MOSS 41]

Un4 are free to do - anyone can register an interest in the property , and its just as easy to remove if its not valid

 

but i have to remortgage within next six months and they cause issues, so i suppose my 'damaged' would be going on a variable rate mortgage instead of a deal as i wont be able to remortgage with this 'charge' if they keep repeatedly applying it.

 

I just want them to stop, they have failed to validate but land registry have nothing in place to stop these behaviours which just seems wrong. like a cease and desist etc , but these people are still trying to bully me into paying by any means possible. even though they dont have the guarantees/paperwork to win in court, im happy to get to court 

 

as s4 of Statute of Frauds 1677 personal guarantees must be in writing and signed - which they dont have

 

 

 

 

 

 

 

 

[AndyOrch]

Quote

Cancellation of a unilateral notice is when the owner of the estate of which the unilateral charge is registered against applies to the Land Registry for the notice to be cancelled. This is a completely free process and can be done through the use of the form UN4 to apply for cancellation. When the Land Registry receives the UN4 form, it notifies the individual who is making the claim. This beneficiary is then given fifteen working days to respond to the application, if they would like to object to it. If there is no response within the cancellation period, the notice is cancelled. If there is an objection for removal of the notice, and the parties are unable to reach a mutual agreement, the Adjudicator of the Land Registry is referred for these cases.

 

Quote

However, unilateral notices have a very minimal effect; this is because the unilateral charge on the charges register protects only the most important interest in any property which is ranked by the most important being first registered as a notice.

 

https://www.propertyblawg.com/conveyancing/unilateral-notice-in-property-law-what-is-it-and-when-does-it-apply/

[MOSS 41]

on another note by 17 dec i need to do a disclosure statement/form- assuming its the actual court one with boxes to fill in

 

which ive never done before , as a defendant what do i write on it? because its all really about what paperwork the claimant does or doesnt hold?

 

 

[AndyOrch]

Disclosure list in Fast Track claims is the N265 see CPR 31.6

 

A form of disclosure that requires a party to disclose documents:

 

On which it relies.

That adversely affect its or another party's case, or support another party's case.

That it is required to disclose by a relevant practice direction.

 

https://www.gov.uk/government/publications/form-n265-list-of-documents-standard-disclosure

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31

[MOSS 41]

Ok- I’m relying on the fact the opposition doesn’t have documentation , so what do I fill In? 
 

just tick boxes that I have emails, phone records , covering date xxxxx to date xxxxx?

 

then if they want anything they can ask for a copy ? - I mean the Emails are between me and them really 

 

and a couple from a loan broker 

 

 

[AndyOrch]

You can only disclose documents/emails that you have specifically referred to within your defence /witness statement which you intend rely on.....it's a very small section on the n265 for the defendant to complete ...just after the signature if memory serves.  It's mostly designed for the claimant.

[MOSS 41]

Ok thanks 

[MOSS 41]

So I did and served my disclosure yesterday -

Just listed everything in date order I hold , long complete list so I can rely on any of it in my witness statement, 

 

I did not get served the other sides disclosure until today (one day late) and as they seem to use snail mail - I would assume court received it a day late too

 

 

anyhow - considering they are ‘legal professionals’ 

 

they didn’t declare half the the phonecalls they already sent 

The phone calls they did declare were irrelevant and talking about Benign things and another company 

 

also listed a phone call between me and them and it’s not my phone number 

 

the attached list was headed with a different court case reference to n265 

The attached list was a list of items held for another court case for another company - not relevant to the case at all

the date of the loan agreement is wrong that they rely on 

 

they make reference to a social media post held (looked it up , it was sharing a car garages business page for an Aston martin - what is the relevance not my car or anything to do with me )

 

they haven’t declared a statement of account - if they are claiming money , don’t they need to provide a statement of amount outstanding ?or reference it in their claim and witness statement 

 

its the most unprofessional thing I’ve seen 

 

 

do I point out there mistakes by asking for 

 

1) copy of loan agreement dated ..6/11/2019... (the wrong date) as a copy doesn’t exist On that date 
2)copy of phone all to number that isn’t mine 

3) ask why another companies disclosure list and reference is required in the paperwork etc 

 

 

or save all this for later in the court room 

as if you don’t declare it it’s inadmissible as evidence 

 

i.e they won’t be able to use loan agreement paperwork as they didn’t declare one dated on the correct date 

 

 

do courts overlook major errors like this ?

Edited December 18, 2020 by MOSS 41

[AndyOrch]

No they dont ...so you simply refute the errors within your witness statement.Try to hold off submitting your statement until the very last moment and hopefully after you receive theirs.

[MOSS 41]

Ok- I don’t do anything to the last day via email - i rang the court it it’s acceptable to do all my serving by email, 

 

however other side for some unknown reason using snail mail, so I’m not getting served or served late with their documents - as per orders 

 

im going to attach a formal letter asking for what things I want from disclosure in a list (in the seven day window and serve today)

 

I’m tempted to write two opening paragraphs , one stating purpose of cpr and disclosure and ask why they have included other referenced court case documents (lots of them)irrelevant and against the protocol - and proportionate costs 

 

And ask why full Disclosure hasn’t been done as many phone calls and documents they have been served with aren’t listed (they have just picked and chosen certain things which is against disclosure ) 

 

and then serve copy of the court too - for a record of there continuing bad practice and non compliance of cpr which is still continuing 

 

what do you think ?

 

also they will have 7 days to ask me for my documents - it’s Xmas , it’s lockdown, they use snail mail , if they do meet 7 day deadline (they date stuff a week old before they type it) ,to ask- if I don’t receive this request in post for two weeks ie don’t get served it in 7 days 

it will make me late on an order and they would do this on purpose by using snail mail instead of email 
 

shall I include paragraph. In letter highlighting that they continue to serve me late , taking no account over postal systems of delays at this time of year due to Covid and Xmas - so I’ve made a note of it for court docs 

[AndyOrch]

Quote

And ask why full Disclosure hasn’t been done as many phone calls and documents they have been served with aren’t listed (they have just picked and chosen certain things which is against disclosure ) 

 

They are only going to disclose what they consider important to their claim and which their particulars /statement refer to.Things that you may consider important may be irrelevant as far as the claimant is concerned......keep it simple dont over complicate this stage by asking for all and the kitchen sink.

[MOSS 41]

I only need to ask for a couple of things as have everything else - they have not disclosed items (if they hold how or have ever held) documents they refer to in their particulars of claim - or the loan agreement itself - on which they rely

 

But list loads of items that relate to another court case with that court case reference attached and nothing to do with this case 

 

so does that mean the loan agreement they hold and mention on particulars of claim but haven’t disclosed is inadmissible 

 

 

[AndyOrch]

Quote

so does that mean the loan agreement they hold and mention on particulars of claim but haven’t disclosed is inadmissible 

 

Afraid so....unfortunately for them...unless of course the Court Directs its disclosure ......without an agreement they have no claim.

 

See CPR Practice Direction 16.

 

7.3 Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, 

[MOSS 41]

I don’t know if they have served the agreement with particulars of claim - because when they served Me my copy of court claim none were attached - 

 

now only one small documents is listed on disclosure (which I already hold and is not enforceable as per my barrister)  and the other agreement not listed (well and agreement is listed with a completely incorrect date many months and days later I.e they have disclosed an agreement dated xxxxx, not the one mentioned in the particulars of claim ) 

 

it’s been a recurring problem with them , that they don’t serve me properly and on time 

 

 

[AndyOrch]

Well claims cant be served with attached from MCOL...its physically impossible.......

 

Hence CPR PD 16 above.....

 

and the original(s) should be available at the hearing, 

 

But if its not even listed on the N265......its irrelevant whether they have or not.......it cant be relied upon...end of.

[MOSS 41]

I have listed the correct two agreements In my disclosure - as I hold them , can they rely on my disclosure to include them when they haven’t listed them ?

 

it’s actually essential for me to do so (disclose them as 1) they exist and 2) they don’t hold a personal signature or all three parties signing the tripartite agreement , and not a personal guarantee under statute of frauds as per my barrister advice 

[AndyOrch]

Quote

 have listed the correct two agreements In my disclosure - as I hold them , can they rely on my disclosure to include them when they haven’t listed them ?

 

Yes they can......you have partially helped them plead their claim...but as you say if they are unenforceable for whatever reason it again becomes irrelevant......unless a judge disagrees with your argument.

 

I personally wouldn't have disclosed them...no agreement is easier to argue than a defective one

[MOSS 41]

Ok- they sent me copies of the agreement in letter before action - 

 

just haven’t attached to particulars of claim or listed in disclosure - I know they have them , so  can’t deny they exist - they just haven’t disclosed at all for whatever reason - but know they will refer to the agreement in court 

disclosed or not 

[AndyOrch]

They may refer to it but they can't disclose or rely on it...as it's not on the N265.......it then becomes here say and a court won't adjudge on verbal evidence.