GB Refinish Supplies Ltd trade supplier debt , but no per guarantee signed? - court claim issued - help ***Claim Struck Out***

[persha50]

Hi amazing people - I am hoping you can help me again.

 

My hubby and 2 partners started a business in August 2020.  It was going ok and suddenly when the 2nd lock down happened business just stopped and we had no customers through the door (he resprays motorbikes so we are reliant on people coming to us).  We had no income till Feb 2021 when things started slowly picking up. 

 

In Dec 2020 we bought stock from a company not thinking we would have no income.  We could not pay the invoice in full but made an agreement to pay £100/month which we did. Things got really bad with the other 2 directors who did sweet nothing expecting my hubby to do all the work 24 hours a day and 7 days a week.

 

in June it was decided to close the company, the 2 directors take some of the assets (the spraybooth and van) which they then sold but my hubby did not receive any income from this.  They agreed he could keep a couple of work benches and the compressor.  My hubby is now trading under a different company name which he was using when he was self employed.

 

The other 2 directors have since given us letters of resignation and we are waiting for the accountant to do year end accounts to close the company at companies house.

 

The supplier who we were pay £100 is aware of the whole situation but is insisting we pay them the balance.

 

There is a guarantor clause in the contract my hubby signed and are saying because of that he is still responsible.  The contract was only signed by 2 of the directors and not all 3. Also the company name was changed from TME to TMV in December 2020 but the contract is still in the name of TME so due to the company name changing and no new contract signed is the company still liable.

 

We have suggested they wait until my hubby is making a bit of money as at the moment I am not working due to health issues and we get UC.

 

I can attached a copy of their letter if needed.  Also they are using our home address on the correspondence as this was on the contract, can I ask them to have this removed as our home address has nothing to do with the company.

 

Best regards

Sharon

[dx100uk]

you mean he signed a personal guarantee?

[persha50]

No there was a clause in the contract.:

Clause was as follows

 

2.              

 

2.1.         The Guarantor(s) hereby undertake that the Buyer shall perform and observe the

 

Conditions and in case of default in the performance or observance of the Conditions the Guarantor(s) will make good on demand on a full indemnity basis all losses damages cost and expenses arising either directly or indirectly out of the default as aforesaid including the legal costs and expenses incurred by the Seller in enforcing this undertaking.

 

2.2.         In the event of the Guarantor being more than one person their liability under this clause shall be joint and several.

 

This is the bit at the beginning of the terms and conditions (contract)

gb1.pdf

[dx100uk]

doesnt answer the question ..

he would have had to have signed two documents

the contract AND a pers guarantee

[persha50]

Hi he only completed and signed an application to open an account which we completed and emailed back to them.

 

I am attaching a copy of the application form so you can see the wording etc.  I have deleted all the personal and company details

GB Account application.pdf

 

According to the them he is a guarantor according to1.1.4 of their terms and conditions which I have quoted above.

Only form signed was the account application form which is in previous post.

To be honest I do not think they gave us a copy of the terms and conditions as the account form was emailed to us and we scanned and emailed it back.

 

Another question as part of GDPR are they allowed to keep our home address on file.  I know it was given to them on the account application form as the company had 3 directors their home address were asked for.

 

Sharon

[dx100uk]

i don't believe that constitutes a pers guarantee

have a look at the Screwfix threads here on CAG.

 

Programmable Search Engine (google.com) <<clickme

 

[persha50]

The issue is due to lockdown etc the company is closing down and we genuinely do not have the funds to pay.

The other 2 directors of the company (who did nothing to support the company expecting my poor hubby to do everything) took 2 of the major assets being the spraybooth and van which they sold and kept the money.

 

They are now say my hubby is responsible despite knowing the company is shutting down as well as our financial situation so we are very concerned about court action being taken as well as our home address being used.

[dx100uk]

the short answer to both of your worries is 'so what'.

 

if they intend to do court on what they are classing now as a pers debt to them, (but they have no apparent separate and signed per guarantee which there must be) they will have to abide by the pre action protocol.

 

until/unless they send one , i'd simply ignore them totally from now on

me thinks they are flying a kite hoping you'll continue to blow with them to keep it in the air as you've already replied once and shown you might be able to be mugged.

[persha50]

Thank you for advice and I have been reading the Screwfix posts.

They are not a very nice company they removed my hubby's paint scheme a few months ago as they were not making money from us (we have to buy their goods) which we could not do anyway as there was an amount outstanding on the account.

Not even interested in taking into account that from 4/5 months we had no income in whatsoever due to 2nd lockdown, the balance we owe is £540, I could understand if it was thousands.  They have customers such as McLaren so not short of a penny or two.

 

Thanks again and will wait to see if they go down the court route.

 

Does GDPR allow them to keep our home address on record if they have a business address to use?

[dx100uk]

yes as its not a data breach nor data mis use.

 

 

[persha50]

Hi an update on the above.

My hubby has today received CCJ papers from GB refinishers which have been sent to our home address.

They have put the company name on the CCJ which is wrong as they name was changed in January this year from TME to TMV.

There is no mention of any of the other directors.  Company is definitely shutting down just waiting for confirmation from accountant.

Concerns are:

1) They have used our personal address which means if they do decide on bailiffs they will come to the house not the business premises which my hubby is still using but in his new company name.

2) The CCJ is in his name so will go on his credit report.

3) The company when trading did not make any profit in fact the other 2 directors took the main assets being a spraybooth worth £18000 and the company van worth £4000.  My hubby was just left with some shelving and work benches so financially the company or my hubby cannot afford to pay the debt.

 

Any advice would be appreciated.

 

 

[AndyOrch]

Topic moved to Financial Legal Issues Forum in view of the court claim received.

 

Topic title updated 

 

Andy

[dx100uk]

please complete this:

 

as for 1+2.

'they' can't send bailiffs anywhere , that's down to if the court latterly allow that and ofcourse him losing the case, which if you go read those screwfix threads i pointed too earlier, without a signed PG, is extremely unlikely, and they've failed to send a letter of claim? and they've used a company name not his so dont worry about the credit file.. pers as i said, they are flying a kite and havent got a clue what they are doing or how to do it properly.

 

get that link done please

[persha50]

Name of the Claimant ? GB refinishers

 

Date of issue – 20 August 2021

 

 

Particulars of Claim

 

What is the claim for – the reason they have issued the claim?

On 15th March it was agreed by my hubby (they used his full name) and myself (used by full name) that they would make payments of £100 per month to the outstanding account.  This was done over the next 3 months.  The last payment received was 03/06/2021.  I was then advised by myself that the company was being shutdown and the assets were being sold off.  When the account was was opened both my hubby and another director guaranteed the account if the company could not.

 

What is the total value of the claim? £545.32
 

Have you received prior notice of a claim being issued pursuant to paragraph 3 of the PAPDC (Pre Action Protocol) ? We received an email with a letter attached advising that in order to avoid further costs and court action to contact them within 7 days to organise payment.
 

Have you changed your address since the time at which the debt referred to in the claim was allegedly incurred? No but the letter in the email had our home address on it and was addressed to my husband and not the company.  The first line of the letter used the company name and the amount outstanding.  I did ask them to remove our home address from their records due to GDPR and use the company address as my hubby was still using the premises but under a different company name.
 

Did you inform the claimant of your change of address? See above.

Is the claim for - a Bank Account (Overdraft) or credit card or loan or catalogue or mobile phone account? No
 

When did you enter into the original agreement before or after April 2007 ? August 2020
 

Do you recall how you entered into the agreement...On line /In branch/By post ? Account form completed and emailed
 

Is the debt showing on your credit reference files (Experian/Equifax /Etc...) ? No
 

Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim. Original creditor
 

Were you aware the account had been assigned – did you receive a Notice of Assignment? N/A
 

Did you receive a Default Notice from the original creditor? N/A
 

Have you been receiving statutory notices headed “Notice of Sums in Arrears”  or " Notice of Arrears "– at least once a year ? N/A
 

Why did you cease payments? Company closed down due to no work from COVID and therefore no income coming in
 

What was the date of your last payment? June 2021
 

Was there a dispute with the original creditor that remains unresolved? No
 

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan? Yes

 

GB Letter and contract.pdf

GB account application - blank form.pdf

[dx100uk]

is that how the particulars of claim is written?

we need it exactly, minus any pers details.

 

are you both individually named as the defendants in the defendant(s) relevANT BOX? OR ARE THERE SEP CLAIMFORMS ONE FOR EACH OF YOU? (opps caps)

[persha50]

Hi - yes that is exactly how it was written on the claim form.

 

We are both individually named in the particulars of the claim bit, where I have put my hubby they have used his individual name and where I have put myself they have used my individual name.

They have also sent the CCJ to our home address which I asked them to remove from your records and the company name is wrong, we changed it in December 2020 from TME to TMV.

 

They has also used one of the other directors individual name as he was on the original account application form

 

CCJ - GB.pdf

[persha50]

Hi do you need any more info from me before you can advise?

 

 

Hi - any suggestions on how I should reply to the CCJ.  I have a very busy week next week as I am a COVID vaccinator at my local centre.  So if possible I would like to reply to the CCJ in the enxt couple of days.

[dx100uk]

 

theres a defence to base your on here

also worth a read..your does not say credit guarantee. nor is a separate sheet as a PG should be 

 

[persha50]

Thank you so much.  Will reply to the CCJ tomorrow.

 

Could I just query something although the company had 3 directors its is registered as a private limited company.  I did read that as a direcotr of a limited company you cannot personally be held responsible for company debits.  Would that apply to my hubby by any chance.

 

[dx100uk]

you do not reply tomorrow!

 

Its a speculative claimform not a ccj 

 

If a director signs a PG matter s not its LTD.

 

Post your defence up here for checking! We dont often deal with these so its worthy it get checked 

 

nOT due till day 33 weeks yet

 

did you send a cpr 31.14?

 

 

[dx100uk]

adapt

 

 

[persha50]

Hi thank you will change as necessary.

We did not ask for anu further docs as they emailed us a copy of the signed account application form which a letter stating the amount outstanding and that we need to contact them within 7 days to avoid further legal action.

[BazzaS]

They also can’t rely on you and hubby agreeing to pay £100/ month (unless you did so by a signed document in the form of a ‘deed’)

 

I’m also concerned by the other directors taking the spraybooth and van, if these were company assets…..

were these purchased by the company, or owned / purchased by those other directors (with their own money, not company money) and loaned to the company (where they would be entitled to take them back)

 

who owns the shares of the Ltd Co.?

[persha50]

Hi - thanks for reply. 

The offer to pay was done via email on behalf of the company, although my name is there its as the admin/secretary for the company, same as for when my hubby has spoken to them its on behalf of the company. 

 

They are naming us personally in the particular of the claim. 

They also have the company name wrong it was changed from TME to TMV, the credit agreement was signed under TME and no agreement redone under TMV. 

I'm not sure if that is an argument.

 

It was agreed that the other directors could take the spraybooth and van as we just wanted them out but did not have funds to give them back their invested capital. 

 

They have mentioned in the particulars of claim that assets have been sold which was done by the other directors but we never got a penny of it.

 

My hubby kept workbenches/compressor/shelving so that he could carry on on his own.  He also took over the lease of the premises.

 

Hope that makes sense.

 

Hi - do I put the above suggested defence on the claim form or do I wait until there is a court date.

[dx100uk]

You really must read those screwfix threads. Understand the whole court process.

 

defence is not due till day 33

have you done AOS and sent CPR?