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Just Cash Flow PLC business bank personal guarantee Court Claim.


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I would have to disagree with your Barrister that this being a Tripartite Agreement...the Particulars confirm it is based on separate Personal Guarantees.

 

2. The offer of the loan was made available to the company on the understanding that the defendants would personally guarantee the borrowing. The first defendant signed the loan agreement on the 11 June 2019 and the second defendant signed the loan agreement on the 17th June 2019.

 

Tripartite Agreements are agreements based on 3 parties commonly used in mortgage market or construction. Personal Guarantees are issued separately and refers to an individual's promise to repay finance if their business can't. 

 

Little point considering striking out part of the claim and the costs involved....a Judgment will on be awarded against the first or second defendant subject to them being able to disclose the necessary PG...it cant be a joint judgment.

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Interesting 

 

it’s because on the signed offer letter - all three names listed in parties to contract

 

party 1) Ltd company  

party 2 )Mr xxxxx(guarantor) 

party 3)Mrs xxxxx-(guarantor)

 

but this offer letter does not describe any guarantee or an indemnity - at all doesn’t provide any narrative on one , and the use of word guarantor doesn’t make you one - obligations and expectations need to be listed as terms and agreed -also it lists a required document to be executed a deed of guarantee and indemnity wet signed and returned  - which was not provided or done by us 

 

he takes the three names to mean tripartite , in that if your listed - all are required to sign , I believe 

 

I agree personal guarantees normally given separately , so I asked claimant on what do they rely for a personal guarantee - where is this listed deed of guarantee and indemnity they say they don’t need one guarantee is 

included in the subsequent loan agreement
 

there are terms of guarantee included in this subsequent loan agreement 

 

however , this subsequent loan agreement isn’t signed personally - only ‘on behalf of company’

 

so isn’t a personal guarantee under s4 of statute of frauds 1677 , nor is their a prior oral or promissory agreement to get around this legislation 

 

it is confusing , I agree , but it clearly been shown to me by legal professionals not to be a guarantee , 

but the claimant , does not budge , doesn’t negotiate , doesn’t entertain settlement offers after being informed of all of this - so you start questioning yourself - why are they so confident , or is it because they just think nothing to lose , doesn’t cost us anything to see it through to court ?

 

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So then we revert... are they suing under the PG or the Agreement ? A letter of offer does not constitute an agreement

 

Quote

The first defendant signed the loan agreement on the 11 June 2019 and the second defendant signed the loan agreement on the 17th June 2019.

 

Money claims based on a agreement will have to be disclosed.

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particulars say

 

'there have been breaches of the loan agreement which entitles the claimant to pursue the defendants under the terms of the personal guarantee to the loan'

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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, 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part16/pd_part16

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yes they werent attached , as it was done money claims online i just got two sheets-front of claim for which amount is wrong and back page the particulars

 

will this have any relevance? that it wasnt served with claim?

 

 they have copies of the loan agreement, but they werent served with particulars

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Cant be served with as you state MCOL....

 

(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, 

 

So must be disclosed. at disclosure stage. Have you uploaded a copy of this agreement here ?

 

 

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loan to redact for butchers.pdf

 

hopefully redacted properly

 

loan offer signed by me - ive redacted it (but finger drawn on device)

loan agreement apparently signed by husband, but IP address scotland, near their offices in scotland typed in his name

(he doesnt recall doing it at all) but only signed on behalf of company anyways

 

we have dealt with this company before for exact same product (as per the execution in the loan offer) we had to do a debenture and deed of guarantee and indemnity (that policy paid off and gone). we said no guarantees or debentures, broker says dont worry you wont need to do that ive negotiated that out. 

so we didnt do a DOGI or debenture, assuming we were safe in not giving any guarantee plus not signing loan agreement personally - and this contract was confirmed in writing by claimant to be a standard non negotiated document they give to all people 

 

 

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Thanks.....not really concerned with the Offer Letter.....but the unregulated agreement at 10.1 refers to the agreement being joint and several which is somewhat concerning. 

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yes , it is arguable according to my barrister, as being a tripartite agreement an expectation or pre condition that all parties to sign, so non signature of one means no liability to another, Harvey v Dunbar (if party sign on the representation party B will also sign, signatures of all are a essential precondition for liability)

 

his points also are -definitely no guarantee for my husband at all under legislation

 

the claimant provided no fully signed loan agreement for me not via SAR or CPR 31.14 or on the N265

 

so actually they have provided nothing in writing that i have signed that describes a guarantee under the legislation- just an offer letter for me (i was supposed to recieve one to sign pursuant/following to the loan offer, they provided a certificate of completion, so one existed, but they havent provided or disclosed it to court)

 

and my husband does not have actual or ostensible right to sign on my behalf  a loan agreement

 

they want to take my offer letter join it to his loan agreement (he didnt even sign)

 

when actually all parties were required to do both parts each

 

 

it really all boils down to whether they have an enforceable one against me - but as per the bioconstruct case ·         Bioconstruct GmbH v Winspear and another [2020] EWHC 7 (QB) (the “Bioconstruct case”) confirms that it is not safe for lenders to rely on signed signature pages that have been appended.

If the signature given is not intended to apply to another document, (how can it if the other document hasnt been provided when you were pressured to sign an offer letter 6 days before seeing the loan agreement - i have email proof) then that signature wont be applied to another document 

then back to statute of frauds 1677, no personal guarantee as not loan agreement not signed in a personal capacity

 

Also my barrister says, you are only signing offer letter that you WILL enter in (future tense) making the loan agreement a condition subsequent

 

 

 

 

 

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  • 2 weeks later...

hi

 

im having a nightmare, barrister just quit said conflict of interest if use argument of undue influence on my husband

 

its not actually a point im going to use in witness statements,

but he says he knows about it so cant act.

 

i have days to get these witness st  in and i feel abandoned.

he says his advice still stands, we have a strong case

 

im scared to do fast track court on my own.

 

i have seen copies of internal emails between claimant and his solicitor- they rely on the loan offer and loan agreement being considered together as one contract. (they are sent and signed seperately at  different times, but want to append offer to form 'part of' loan)

.- but also quite tellingly ask each other 'is there any other agreements with their personal signatures on?'

 

we are arguing - loan agreement signed 'on behalf of limited company' no statute of frauds , lots of case law etc. relying on construction of contracts and interpretation case law too in full barrister advice and legal defence

 

my husband never signed a loan offer, condition precedent which  they want to append to a loan agreement signed  only on behalf of company its easier to argue his case.

 

i have signed the loan offer  11 june (proved by certificate of completion), i have email where they nagged me to sign immediately or they will delay funds-email evidence to go in bundle

 

then they sent loan agreement for me to sign on behalf of company a day later 12 June-(docusign evidence provided but not actual loan agreement) - ididnt sign until the 17th

 

 which contained information and definitions i required to understand the loan offer,

 

i never intended any signature on a loan offer to apply to a loan agreement i hadnt been sent or seen. this would lead to an unconscionable result due to their pressure and coercian

 

you've seen the loan offer and agreement above, what do you think

 

i am need of moral support today to see if i can manage this on my own.

 

 

TIA

 

 

 

 

 

 

Edited by MOSS 41
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Yes you can.....you appear to have a good understanding of the basic credit consumer law.....possibly impress the judge that you went it alone...plenty of Fast Track cases been fought and won by litigants here on CAG.

 

If you have the evidence...the argument....and the personality to convey .....go for it...think of the fees you will save not paying the barrister.

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thanks for your kind words , 

its the procedural stuff i worry about

 

technical stuff that can affect outcomes because of my inexperience

 

skeleton arguments, to be done

cost schedules

informing court how long i think it will take etc. 

 

for instance their solicitor has asked for some emails between me and my loan broker - well after disclosure.

i havent disclosed these ( they are privileged) and i have written them in the privileged box - only three emails anyway

 

but should i just provide to him as i actually want to present in court myself , and letting them have them actually discloses  them so they become admissable 

or ignore?

 

also costs- mine arent too high

 

but what is fast track going to cost me in a situation where i lose.

 

i know court fees capped at 1650 but what if their solicitor bill is 20k- 

 

i have managed to include all the way through their failings of pre action haste to litigation letters

offers to settle subject to costs- i would nt feel so bad if all i was fighting was the court claim amount.

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I can guide you through the procedure thats not a problem.

 

Re Disclosure....its simple anything that benefits your defence you disclose.

 

Re costs...claiming a figure and getting a judgment costs are two completely different matters should you lose and should you have to fight costs then you demand a detailed costs assessment...but that should be put to back of your mind for now.

 

Where are you exactly now with the court directions and yet to complete ? 

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Hearing date 5 March 10am 

 

 

Witness statements to be exchanged 28/1 

so next Thursday , but they don’t accept service by email -

well they have been , but wanted to send Tuesday by post anyways 
 

 

7 days before hearing claimant to lodge bundle at court 

7 days before hearing parties to notify court of realistic estimate for hearing - by email

 

 

 

doesnt say anything about skeletal arguments etc 

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Fine.....have we a copy of the Directions here on your topic ?

 

Have you made a start on your statement and disclosure list ? 

 

keep an eye on the dates and make sure the claimant complies with all directions by time and date.

The hearing is in person and not remote ?

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yes my draft witness statements are kind of done , but before the barrister signed off (he was checking these for me )

he said get a solicitor to write them , i see 'holes' in yours.

 

so im confused , i took days getting them perfect to lead into the case law we need to discuss at trial. getting all evidence in folders etc

 

yes attended hearing, honestly i know theres a pandemic but , my case has been booked in break neck speed, even quicker than proposed directions served early on.

 

 

my dilemma is- i can write my husbands with a heavily based undue influence -and etridge principles. as i did all the application-(i can evidence this _ my husband knows this he hates paperwork, the whole point is they should have got certified legal advice as he is not commercially connected according to para 49 of etridge case law)

however this cost me a barrister , and do i need it-?

he hasnt signed anything personally, just concentrate on that?

 

disclosures done 

directions - as per the order of the court ?

 

so his statement is basically - i never agreed to give a guarantee, i havnet signed anything personally , statute of frauds s4 and Elpis v Maritime- only signed as capacity of director , no prior oral or written agreement either -slam dunk

 

mine focuses all on the language and timing of agreements and my intentions when signing , plus all parties of a tripartite agreement didnt sign a condition precedent for execution of the contract as a whole. 

 

 

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Post a copy of the statement here redacted in PDF format. The court directions are on the Notice of Allocation to Fast Track N154...

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That's fine....and you have have done your N265 ...and received theirs ?

We could do with some help from you.

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yes 

theirs was a mess- wrong court reference on page ,, long lists of items relating to another court case

 

on behalf of a company , didnt say who filled it out and why they were suitable

didnt even disclose the loan agreements on which they rely

 

they disclosed a loan agreement dated 11 november 2019-doesnt exist  (instead of 11 June 2019)

didnt disclose my loan agreement dated 17th June 2019

 

havent disclosed a loan offer for dean

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back to my summary judgment issue,

 

i am about to draft a better witness statement to object , with evidence, solicitor when i asked advice says 

 

put all evidence with witness statement, and submit also an amended defence as an exhibit, 

-hopefully claimant will back off and withdraw application- (so should i send my witness st now, instead of waiting until 7 days before ?)

 

but they could legitimately argue that their costs to date should be paid on the application was justified given the defence did not set out a proper legal defence?

 

the defence (not done my me which is why it is crap) is just 4 lines :

1)i contest the validity of the personal guarantee the claimant seeks to rely on

They say this is to vague to constitute a defence

They say guarantee is included in loan agreement, and 'on the face of it' correctly executed

no other complaint has been made  (ive written several letters complaining and can evidence)

 

a) the loan agreement is only signed for and on behalf of ltd company- i can point this out)

b)i have an email from them of the offer of terms, listing amoungst things required a deed of guarantee and indemnty, they havent provided me with one, as none was ever done , but clear evidence that the required guarantee would be in this deed not in any  loan agreement . there werent justifed to bring this application for summary as they knew a DOGI is the guarantee as they wrote the email that DOGI was required from us.

 

2)i have made several submissions to the claimant to request my account information, in a view to obtain clarity on the above issue. To date the claimant has failed to provide a copy of their personal guarantee which they seek to rely on.

they say there is no personal guarantee document- as per email they wrote there is supposed to be a DOGI- 

the personal guarantee they rely on is in the loan agreement- its only signed by company

they say they provided all documents in letter dated 2 july - they didnt , no DOGI supplied

this is no purported defence

 

a)i can clearly demonstrate DOGI asked for by letters

b)i can show loan agreement signed on behalf of company

c)its not a defence, but its evidence my defence is embarressed because they failed to respinf to preaction protocol document requests and letter requests for this DOGI, how can i write a defence without seeing the document, they know should exist.

 

3)There are material concerns in respect of the intial loan agreement and they way this was handled by the claimant, its my intentions to raise this with court so i am fully aware of legal remedies available to me.

they say unparticularised and vague to constitute any ground of defence at law.

as such the claimant cannot know what it faces at trail 

the defence is embarressed and cannot stand

 

a)yes vague , but they havent provided a DOGI , we havent reached witness st stage , which is where we  explain why and with what evidence, we as defendants are not supposed to form legal opinion, before or during witness statement stage, thats all for skeletal arguement and court.

they back dated deed of debenture

they havent done a DOGI, or cant provide both conditions precedent of the loan and its execution

they let my wife remove secured charge over company- evidence written and phonecall, without my consent materially changing any level of risk for alleged guarantor

let my wife organise payment plan, without my consent signed off on revision memorandum.

 

4)dropping this point anyways 

 

so what im asking how can i write witness statement with above evidence, witout them being awarded costs for bringing application due to the bad defence?

 

they know a DOGI required, so when i say i contest validity of personal guarantee, its true, just brief

they say guarantee on "face of it" correctly executed. they know its only signed by limited company

they know complaints have been made, they are aware of what we required and why we said it wasnt valid.

 

they know there is a personal guarantee document outside loan agreement- email proves it, they havent supplied it etc etc .....

 

 

 

 

 

 

 

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Who has applied for Summary Judgment ?

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the claimant is pursuing us inder two companies - exact same documents/ loans 

same claimant two court cases, my thread has never been seperated into two.

 

large claim done the witness st, awaiting trial etc 

 

smaller claim after directions they put in an application for summary judgement because  i didnt do my normal war and peace 

defence doc. mediator i had handling it just typed four lines

 

i know its insufficient , but i also know from barrister advice we have strong defence and are likely to win

 

so just want this summary judgement dismissed without being charged for their costs for bringing it as my defence was short.

then i can go back to defending it like normal

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