Just Cash Flow PLC business bank personal guarantee Court Claim.

[AndyOrch]

looks okay...Im not going  to comment on the arguments of the Guarantee or loan agreements...just the layout and legal content...I will leave it to you re your arguments as to why the documents are invalid.

 

You have not stated that PR1 was not filed with the court or yourself and therefore the claimants statement is incomplete and any documents refrred to cannot be used as evidence.

 

You have not stated that the claimant has concurrent claims running for the same issue (against personal and Ltd Company) claim numbers xxxxx & xxxxxx issued dates xxxxxx & xxxxxx and therefore one of the claims should be precluded and considered an abuse of process.

 

The statement of truth is now outdated due to recent CPR changes and should be changed as follows....

 

 “I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

[MOSS 41]

 

thanks, i've avoided case law, but i can add that in as why i dont recognise it as valid

 

its not the same case tried two different ways, its two seperate cases from same claimant , two different loans 

to two differnt ltd companies, but from the same claimant , the arent duplicating anything, just following the same path and evidence/defences in two cases.

 

 

ill add PR1 copy not submitted under that relevant paragraph, when do they  lose the right 

to admit it, when its not supplied 7 days before? or can they still put in at 3 days before ??

 

Is it enough to stop an application being awarded? i can make it more involved?

 

they havent provided DOGI, its not in their missing PR1 because its not  enough pages - pages declared match exactly loan offer pages and loan agreement and described as so , and i havent done one, they cocked up , so it cant possibly exist.

 

loan agreement not signed personally anyways under ELPIS 

 

the claimant -man writing the witness statement- he is the one that has signed a statement of truth on the other claim and said these 'offer of terms' emails are a condition precedent for the loan to come into existence -his words signed as truth- can i exhibit his witness st to the other case, or is it inadmissable

 

all information i have from barrister advice i previously got a report on  is there's no valid guarantee , 

so i can give all the case law stuff he gave why its not 

 

 

 

[MOSS 41]

What do judges do with bad evidence ? Or quite misleading things said in a statement of truth by the other side ? 
 

I can see one copy of an email is not authentic , in the sense it’s obviously been cropped and pasted under another - they use the wrong name too

they have cropped out , all addresses , times, who sent to etc - just photocopied the centre text basically - which is not acceptable to me 

 

who was it sent to,? what time ? what date ? all cropped out very obviously - do I raise something with the  courts to try and get them to provide an original, true copy of what they’ve cropped and photocopied under another heading?
 

Then the other part to this , is that the said ‘email/document’ they go on to  declare was attached to the front of an Offer letter document sent by docusign, so when you signed that envelope , you also signed acceptance of this email - and it’s contents 

 

1) it’s not true, they’ve claimed this as true in the witness statement ,

2) the docusign , certificate of completion , clearly states the envelope is 5 pages (which matches just the loan offer contract length of pages  , so concrete proof , it was not included , and they have said an untruth , but signed this as truth 

 

I’ve never dealt with provable untruths before , generally , we all know what issues we face and I’ve never had a claimant , basically tell a provable lie in a witness statement , or provide cropped / doctored evidence - I just didn’t think people did it , 

 

but docusign certificate proves it  wasn’t included and cropping of said document very poorly done, 

 

will a judge see through this , or do I need to raise some issue with this evidence ?

 

 

[AndyOrch]

Quote

its not the same case tried two different ways, its two separate cases from same claimant , two different loans 

to two different ltd companies, but from the same claimant 

 

Okay....that's where the confusion set in and why we always advise one topic per claim/issue. 

 

Quote

they havent provided DOGI, its not in their missing PR1 because its not  enough pages

 

Im not sure what the above refers to..... DOGI  ?.

 

Andy

[MOSS 41]

DOGI-deed of guarantee and indemity,

 

the claim (claim b)which now i have to fight an application for summary judgement , they are relying on terms within a loan document, to enforce a guarantee, this loan agreement is only signed on behalf of the company.

 

1) i have an offer of terms letter/email sent to me 13 /08/2018 -we will lend in these condition etc : which clearly lists a preconditon of Deed of Guarantee and Indemnity and a debenture being executed.

2)they have not provided me with a copy of any DOGI, i think they forgot to execute , i dont recall seeing one.

3)The loan agreement is not signed in a personal capacity- why would you? you had to provide a seperate DOGI, to give a guarantee- their rules not mine.

4) the loan agreement clearly states under definition of guarantor

 

-"person or persons who enter into this loan agreement for the purposes of providing a guarantee EXCLUDING any third party guarantor that executes a seperate Deed of Guarantee and indemnity"

 

so part of me is just keep application objection very simple with the above attaching the evidence, and save myself £1000 of solicitor fees doing it myself

 

but im trying to anticipate , what they send in response 3 days before hearing (as its no oral evidence), could they just send a letter, saying we didnt agree to that, PG in loan agreement, they agreed to be guarantor end of 

 

 

 

 

[MOSS 41]

i am having to agree a trial bundle , (claim A)

on one  of the emails of correspondence i want them to lnclude in trial bundle -as further correspondence, showing supplementary disclosure

 

there is a whole conversation underneath this printed email, where claimant and his solicitor discuss our case- saying to each other, can you find any copies with personal signatures etc......

 

i was obviously not meant to see this, but disclosed in my response to requested disclosure underneath as forwarded on.

 

he s asked for copies of what i want disclosed, but before i do

 

a) hes gonna be mad he sent me this in error and wont want it in trial bundle

b)Is it an advantage, that i let him know, 'i' know they are aware there are no personal signatures, insist in its disclosure in trail bundle to bring to attention of court?

 

 

i suppose what im asking before i send him back his copy-which will let him know, that  i know

 

is there any advantage of keeping this close to my chest?

 

or say 'here you go ' include this disclosure response you gave me' in the trail bundle

 

(i can always make a supplementary trial bundle with one ready to serve 7 days before if its not included and they purposefully omit)

 

 

[AndyOrch]

If its to your advantage ...disclose it.

[MOSS 41]

The solicitor is going mental-hes having a hissy fit

 

refusing to add N265 disclosure forms and lists to trial bundle 

refusing to add specific disclosure requests and response to bundle on my request

when he saw that particular one- he said im not allowed to include , as 'irrelevant interco chatter'

 

i said its a response to a specific disclosure request-it is disclosable,

 

i said 'dont worry, ill make a supplementary trail bundle for the above, with our 

correspondence of your refusal , and you can explain to the judge why you  refused to include it."

 

this document is as good as admits, even they don't see the loan agreements as having personal signatures

because they are looking for copies that do.

 

the reasons i think he is refusing

a)they havent disclosed things they rely on- i want judge to see, items are not disclosed

b)i rely on things i gave in specific disclosure, dont want them ommitting it and then saying we werent disclosed that

they cant use it.

 

 

 

 

 

 

 

[AndyOrch]

Tough...as long as you comply fully with the judges directions...that's his problem

[MOSS 41]

will the  judge give this document any weight ?as obviously the bit forwarded underneath wasnt supposed to be seen by me, but i couldnt crop it out without looking like i forged and email etc 

 

but it shows they dont recognise loan agreements as having personal signatures

they will argue , thats just 'chatter' 

 

but if the judge is looking for the truth?

[AndyOrch]

If it in your disclosure and you refer to it within your statement.... he must consider it.Its for the claimant to respond and explain its existence.

[MOSS 41]

hi, 

i did not refer to it in my witness st-

 

well i refered to it in a sense of heres a specific disclosure request exhibit xxx

and the claimant responded but did not supply a copy within that disclosure dated xxxx (but i havent included it in evidence bundle)

 

but even if i cant use it - i can say orally -the clients recognise there is no personal signature and on disclosure dated xxx

they failed to provide said personally signed documents as requested i exhibit xxx, they provided narrative they were searching for it

 

and see if judge asks, what do i refer to ? and point to page in bundle ?

 

 

[AndyOrch]

This is claim A

 

You could do a supplemental witness statement and add it.

[MOSS 41]

is it not a bit late ?

hearing 5th march

 

 

[AndyOrch]

No...exchange of witness states is normal 14 days pre hearing......supplementals can be filed and served up to 3 days pre hearing.

 

 

 

.

[MOSS 41]

im tempted i have a list of issues  in their WS, where he is telling untruths

 

1)he states first they only lend giving guarantees , its their lending policy-

-i asked for copy of  the lending policy many months ago-he refused saying it was confidential

i printed off their terms and conditions from the internet.

the top says applies to all types of loans, and representations are made from borrowers (and guarantors, if there is any)

 

evidence hes lying on WS (can i ask judge permission to introduce in court as readily available on internet and claimants own document)

 

2)he says copy of a loan agreement was signed by mrs xxx on 7th June and mr xx on 7th june and returned - he includes in his evidence docusign completion showing audit trails meaning he has no excuse for these mistakes

a)it wasnt sent to me until 12th june as proved by docusign-i signed 17th as per docusign 

b)husband didnt sign until 12th june

 

he even states i sign on 17th on particulars of claim husband signed 11th and i signed 17th, there no consistency

 

 hes not being honest/accurate whichever way you want to look at it

 

3)he later in WS states loan completed 20th june -another falsehood (make up your mind! got four dates now)

 

4) he claims i made a call to arrange  drawdown of funds, he included transcript of this call  to 'prove how happy i was with the service'

a) i returned a call clearly 'saying im returning a call from xxxxx ltd and asked them what they want, they insisted i drawdown funds, or i would lose ability to in future , i said i dont need them yet., they said set it up, and just draw down when ready then. -completely irrelevant , but again evidence in direct contravention to what he claims as truth.

 

5)he mentions all these 33 calls between parties, but doesnt want to burden court with them- i mean you only need one to prove you discussed a guarantee, i think omission speaks volumes

 

6)he says act of default is liquidation - i have provided companies house info that we werent in liquidation at all, when they sent letter before action and started court.

 

7) hes says we only raised a complaint when they requested payment of a guarantee -of course !

 

8)hes says its not fair for defendants to assert technical defects in our processes, and that shifts burden of loss unfairly on claimant-and its an injustice

 

Edited February 4, 2021 by MOSS 41

[MOSS 41]

ok ,

 

but other side has already kind of made up trial bundle-unapproved by me of course as above.

 

if i do a supplementary to i have to do an application for it or just serve and file with a reason ?

[AndyOrch]

Its custom to inform the claimant that you will be submitting a SWS...only for new evidence though...dont turn a SWS into a tit for tat in response to their main statement...a court wont tolerate it.

 

You don't have to use a n244.

[MOSS 41]

to be honest i have enough in what i have done , the only thing new that i would like included

 

the online terms of the conditions which proves , they dont only lend with guarantors, i wonder if i could just take three copies with me and ask permission to show judge? 

 

they will never agree to it or print and include in trial bundle, you cant underestimate how difficult they are being 

[AndyOrch]

Then just include that...your intro will be ....

 

This statement is submitted and filed in view of new evidence that has been discovered since submission of my initial statement dated and is supplemental to said statement.

 

Then go into your point and reference the exhibit.

 

 

[MOSS 41]

Thanks

 

summary judgement (claim b)

 

phone hearing 24th feb -no oral evidence, 

am i right in thinking , you just sit there and listen to judges decision? wont get asked any questions etc?

 

i have included in my evidence in response  -'offer of terms' email from claimant -specifically stated as 'these are the terms on which we make lending available to you'

they list payments, interest , terms, and state the provision of  for a debenture , and Deed of Guarantee and Indemnity by mr xxx

 

i accepted these terms , by responding to email , but for reasons unknown , the DOGI never got sent for me to complete.

the loan agreement they want to say is the guarantee instead (i didnt  sign,  only company signed),

specifically states, you are not defined as guarantor within the loan if you do  separate DOGI

 

for me this is a real clear cut case of condition precedents not met, i cannot think of any excuse they can say

why the provisions of a loan agreement should be considered instead? when i was of the understanding a guarantee can only be given in the DOGI

 

Im hoping the judge, dismisses application and makes order for provision of a copy of this DOGI, or case is struck out without merit- what are the chances ?or am i being to hopeful?

 

ill attach the terms on which they agreed to loan below

the particulars of claim even say , we pursue under terms TO the loan agreement not IN the loan agreement.

offer of terms redacted CAG.pdf

[AndyOrch]

Summary Judgment hearings are relatively swift...they can be held in the main court rooms or the judges chambers and last anything up to an hour.

 

He will speak to you ask you for a summary as to why the application should not be granted and also to the claimants representatives...it vitial that at the first opportunity you inform him of the claimants failings re disclosure (you may want to check again with the court nearer the hearing that its still the case)

 

In my opinion it really cant proceed without documentary evidence ...as it cant be concluded with oral only. He may allow the the claimants time to resubmit and adjourn...or simply dismiss the application...depends on the judge and how lenient but its not what you would expect from professional litigators.

 

 

.

[MOSS 41]

its no oral evidence

 

written evidence only , to be submitted 7 days prior

 

hearing by phone 

 

 

as its no oral evidence - thats why i wondered if , the phonecall is to state his decision only, 

as its only the written evidence on which he will base his decision.

i have the written evidence-offer of term is provision of a DOGI, those that provide DOGI's are not defined as a guarantor in loan agreement, no guarantee within agreement.

very clear words of construction made by the claimant themselves.

 

they refer in their WS to application to items in the 'PR1', but its not been included and the court holds no copy.

 

in any case i dont need to see it, i know what he was supposed to include (loan offer 5 pages described and loan agreement 11 pages described) , im not including those documents in my evidence to help them out. ie im not providing loan offer and loan agreement for them, they have to prove it exists not me, and include it in their application.

 

i just make reference i.e guarntor definition in loan agreement is.................

 

if they manage to provide in time, judge has loan agreement to refer to.

 

if they forget and they produce no 'PR1' judge has no evidence to base his decision on -no contracts to read

does he just throw application out?

[AndyOrch]

Quote

its no oral evidence

 

I said " as it cant be concluded with oral only "  no money claim connected to agreements can be concluded orally ...whether it be in a court room or by teleconference.

 

Quote

if they forget and they produce no 'PR1' judge has no evidence to base his decision on -no contracts to read

does he just throw application out?

 

Ive already addressed that in my last response.

[MOSS 41]

aargh makes sense now

i re read it