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

[persha50]

Hi - I have read through them but will have another read and make some notes.

 

I did not send a CPR as they sent a copy of the acount application and their T&C under a covering letter advising we have to make payment within 7 days otherwise they would take legal action. 

 

I do understand about the main defence being giving at 33 days but has a bit confused as the form N9B has a box titled defence.  What do I put in that box.

 

Do you think I should still send a CPR as they would not have any other documentation from us.

 

[dx100uk]

you do not use the paper claim pack

that is only for your ref now.

 

have you done AOS? on mcol website 

[dx100uk]

there was a link in post 15 that asked you to give us details of the claim, you did that but did you also read the other posts there regarding how to use MCOL website and what to do .??

 

if you didn't here is the relevant bit..

 

pop up on the MCOL website detailed on the claimform.
[if mcol is not working return after the w/end or the next day if week time]
.
 register as an individual on the Gov't Gateway Site
 note down your details inc the long gateway number given, you might need it later.
 then log in to the MCOL Website
.
 select respond to a claim and select the start AOS box.
.
 then using the details required from the claimform
.
 defend all
 leave jurisdiction unticked
 you DO NOT file a defence at this time
[BUT you MUST file a defence regardless by day 33 ]
click thru to the end
confirm and exit MCOL.

get a CPR  31:14  request running to the solicitors [if one is not listed send to the claimant]
...
.[use our other CPR letter if the claim is for an OD or Telecom Debt]
.

https://www.consumeractiongroup.co.uk/topic/332546-legal-cpr-3114-request-request-for-information-when-a-claim-has-been-issued/

.

on BOTH type your name ONLY
Do Not sign anything
.
you DO NOT await the return of ANY paperwork 
you MUST file a defence regardless by day 33 from the date on the claimform [1 in the count]

..............

 

[persha50]

Hi - sorry did not see that bit!!!

Will sort out the MCOL as per your advice and put together a defence which I will post for your advice beofre sending.

Thank you for being so patient as well.

 

 

[persha50]

Hi can I just confirm day 33 will be on on 6th October, claim form was dated 20th August.

Working on defence now so just need to know timescale as would appreciate your input before I send it.

[dx100uk]

eh?

 

20th august + 33 is tomorrow by 4pm..

told you how to do it in my last post at the bottom

 

post your defence up here 1st for checking.

 

dx

 

[persha50]

Sorry - thought it was working days!!!

Sorting it out now and will post.

 

Are you able to confirm the type of company, the company is registered as a LTD company although there were 3 partners, my hubby being the managing partner, so is the company regarded as a LTD company or a partnership?

 

The reason I am ask as in the account application form it states that the other directors need to be listed in the case of a partnership the home address needs to be given which they have used in their correspondence and claim form.

 

What do I say about them including my name in the claim as I have not signed anything but are hold me responsible as well.

[dx100uk]

All to do with no signed pers guarantee imho.

see what @Andyorch thinks

 

[persha50]

Hi - defence as follows:

 

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

 

On 15th March it was agreed by Mr XXXXXX and Mrs XXXXXXXX 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 Mr XXXXXX and  Mr XXXXXXXX director guaranteed the account if the company could not.

 

########Defence#######

 

1.I  Mr/Mrs Xxxxxxxxx the defendant in this claim contend that the particulars of claim vague and are generic in nature and fails to comply with Practice Direction 16 of the CPR. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

 

1) Misrepresentation - the document is headed 'Credit Account Application Form' and for it to be a personal guarantee is misrepresentation by the creditor. The Application form asks for details of mpany/Partnership/Sole Trader

 

2)  The Application Form was not signed in a personal capacity but as a Director of XXXXX Limited. Additionally if this Application Form is found to be a guarantee it has an unreasonable indemnity clause within the meaning of the Unfair Contract Terms Act 1977 (”the 1977 Act”). The form that is the subject of this guarantee was between the Claimant and XXXXX Ltd.  My involvement as a guarantor was purely a personal matter between myself and XXXXX Ltd

 

3) I did not provide this guarantee in return for a fee or commission therefore my trade or profession is not that of guarantor.   It is therefore submitted that I was  ”dealing as a consumer” within the meaning of section 12 of the 1977 Act (R & B Customs Brokers Company Ltd v United Dominions Trust Ltd [1987] EWCA Civ 3).

 

4) As a result of the above case, the guarantee must be reasonable and it is submitted that the guarantee does not meet the reasonableness test of section 11 of the UCTA1977 Act and it is noted that by subsection (5) that it is for those claiming that a contract term or notice satisfies the requirement of reasonableness to show that it does.

 

5) It is my belief that the guarantee does not meet the reasonableness test for the following reasons.

 

6) I had no intention of entering into a personal guarantee nor did my wife who you have mentioned in the particulars of the claim.  She is not a director of the company either.

 

7) What is purporting to be a personal liability is incorporated in the body of a document which is clearly designed to impose liability on XXXXX Limited and not myself personally.  The company stopped trading in June 2021 due to severe financial issues and having no income coming in to sustain running of the company and it was there agreed by all 3 directors that the company should be closed.

 

8.It has been shown above that I am a consumer in this case. Under the Unfair Terms (Consumer Contract) Regulations 1999 (regulation an unfair term is not binding on the consumer and therefore I cannot be held liable for the XXXXX Ltd debt.

 

9) Under regulation 5(1) of the UTCCR a contractual term that is not individually negotiated will be regarded as unfair if, contrary to the requirements of good faith, it causes a significant imbalance in the parties rights and obligations arising under the contract, to the detriment of the consumer.

 

The Application Form was clearly pre-printed and was a standard form of the Claimant and therefore cannot have been individually negotiated. By trying to pass the liability of a third party to myself, without my knowledge, there has clearly been an imbalance in the parties rights and is to the detriment of myself financially.

 

Use of my personal address as well as mention of my wife in the particulars of the claim I believe makes the claim invalid.  My wife (S xxxx) is not a Director of the company is not responsible for financial matters of the company.

[persha50]

Thank, have made changes and will be sumbitting in the next 20 minutes or so.  Hopefully will be dismissed but will keep you posted.

 

[dx100uk]

not sure if thats all correct..pers i'd hold filing that

 

would be much better to await @Andyorch to ok it 1st

it wont hurt you to not file by 4pm.

you are a litigant in person (joe public against the system) 

you are given certain leeway.

 

dx

[persha50]

I've just tried to log in on MCOL and its telling my claim number and password are incorrect?????

On hold to them now as not sure what is happening that I can't log in.

 

Just tried to log into MCOL and its saying my claim number and password are incorrect????

On hold to speak to someone now, do you have any idea why this is happening.

[dx100uk]

Good dont file that please!! Wait!!

 

Mcol often has issues. Just await for it to be reset.

 

You can always file by email anytime so dont worry

 

Please let @Andyorch review your defence 1st.. 

[persha50]

Just spoke to them and they told me I can only use the password once and that defence has to be done via email.

Hubby needs to fill in defence & county claim form, sign, scan and then send with the defence.

What time should I wait to send the email.

 

[dx100uk]

As already said...wait 

 

Your defence can be filed by email when it's checked over.

You don't need any form at all 

 

As for only used once . rubbish

It allows you access to the mcol portal until the claim concludes

 

You didn't accidentally file a defence when you did aos did you?

 

Dx

 

 

 

 

 

[persha50]

No - I used the instructions you gave me above.  The court lady said claim is still active as thought it might have been cancelled.

 

Just tried MCOL again and still same issue saying my login details are incorrect!!!!

 

Is there a way I can find out without phoning to see if the claim is still valid.

 

I am hoping because I said we would do a defence that GB have cancelled it.

 

[dx100uk]

try tomorrow

you can email the defence we'll give you that once its checked

[persha50]

Still no luck with MCOL website.  Still saying its incorrect.

 

Any updates on defence so I can submit today before 4pm

 

[AndyOrch]

Looking now.....do not submit the above.

 

Quote

Use of my personal address as well as mention of my wife in the particulars of the claim I believe makes the claim invalid.  My wife (S xxxx) is not a Director of the company is not responsible for financial matters of the company.

 

Where in their particulars does it state that I cant see it ?

Whos names are actually on the claim form as defendants ?

 

 

.

[persha50]

On 15th March it was agreed by my hubby (they used his full name) and myself (XXXXXXX) 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 XXXXXXX that the company was being shutdown and the assets were being sold off.  When the account was opened both my hubby and another director guaranteed the account if the company could not.

 

Where I have put XXX they have used my full name

 

The claim is in my husbands name, I am mentioned in the above bit.

[AndyOrch]

And address ?  you seem to be adding a lot of information to a woefully lacking particulars that fails to comply with CPR 16.Do not give information that the claimant has not stated within its particulars.

[AndyOrch]

If you are not named as a defendant in the defendants address box its irrelevant what/who is named in their particulars. The defence response should be from your husband only as named defendant and respond to their particulars as alleged and only what they have alleged.

[persha50]

They have issued the claim using my personal address and not the companies. 

I did ask them to remove this info from their records. 

 

We do not want our personal address used by them at all.

[AndyOrch]

Particulars of claim for reference only

 

On 15th March it was agreed by Mr XXXXXX and Mrs XXXXXXXX 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 Mr XXXXXX and  Mr XXXXXXXX director guaranteed the account if the company could not.

 

########Defence#######

 

1.I  Mr XXXXXXX the defendant in this claim contend that the particulars of claim vague and are generic in nature and fails to comply with Practice Direction 16 of the CPR. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

2. The Claimant has not complied with paragraph 3 of the PAPDC (Pre Action Protocol) Failed to serve a letter of claim pre claim pursuant to PAPDC changes of the 1st October 2017.It is respectfully requested that the court take this into consideration pursuant to 7.1 PAPDC.

 

3. The defendant notes the contents of the claimant's particulars and denies the particulars stated until such time it can verify what agreement it refers to and what the claimant's claim is in connection to.

 

4. . As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

5.. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

[persha50]

AMAZING and thank you so much.  Still not able to access online MCOL so will be emailing.  Just waiting for hubby to get home so he can sign the form.

Will keep you posted.