Claiming on a Business account? Lets join forces?

[Tarka2]

Hi all,

 

We are in almost an identical position as the OP.we are under pressure as we are going to court again on Tuesday. Barclays are seeking a possession order over our home to pay a personal gaurantee for £70k plus interest= 83k.

 

On our company going into voluntary liquidation (March 2006) Barclays took on collecting our debtor book, but failed to collect the debts and this in turn has left a massive shortfall on our account.

 

We have been to court on 2 occasions,on the first occasion we filed our own defence based around lack of information, incorrect figures and reasons for non collection of book debt,

 

On the 2nd occasion Barclays asked for an adjournment, due to the fact they could not find our file.

 

We were due to go to court for a third time on the 3rd of October but received a draft consent order from Barclays' (tlt solicitors), with 5 directions listed, as follows:

 

1, the hearing for 3rd october to be vacated.

2 Disclosure by list to take place by 28th november

3 inspection to take place by Dec 2008

4 witness evidence to be served by 5th Jan

5 pre trial review hearing to be listed for 2nd feb 2009

 

which we agreed to and signed (on the advice from a solicitor, over a phone call)

 

As we understood it, Disclosure would be from there side , detailing lack of cash collection, and the amounts explained, but nothing was forthcoming.

 

We recieved yesterday a bundle including An N244 to strike out our defence and not go to trial because we did not disclose.

 

Ironically the solicitors' new witness statement figures contradicts the previous solicitors reply to our defence, also they do not explain the lack of collection "reason not known" being used over and over, although they list some reasons against other debts i.e copy invoice req ,contra etc

 

simply the sums just do not add up.

 

we feel out of our depth now,

 

what can we do?

 

we think we want this to go to trial can we force this?

 

can the disclosure of charges be used in our favour for a stay?

 

how do we proceed?

 

mentioned earlier in this post,the get out clause RE Gaurentee's is this applicable in our case?

 

Can we challenge the charges incurred during the Company's trading to get a stay. Bank account opened July 2004 closed MArch 2006.

 

we want to save our house?

 

Any copy of documents required can be posted.

 

Time is obviously of the essence.

 

Any help greatly received.

 

 

Stu and Lisa

[slick132]

Hi there,

 

You now have a thread of your own in the legal issues forum where I hope you'll get some advice.

 

Link here - http://www.consumeractiongroup.co.uk/forum/legal-issues/180984-barclays-guarantee.html

 

[sweets-on-the-move]

i run a small buisness and charged 50.00 per quarter with barclays the thing that does annoy me is the account administration charge.what do they administer.my buisness is about 4yrs old .can i claim these charges back how do i go abot this any help

[photoman]

i run a small buisness and charged 50.00 per quarter with barclays the thing that does annoy me is the account administration charge.what do they administer.my buisness is about 4yrs old .can i claim these charges back how do i go abot this any help

 

Unfortunately you won't be able to get these charges back.

 

They are account administration charges, for the regular processing all your transactions etc, rather than individual charges for any kind of defaults.

 

Banks often do periodically charge business account holders for admin under the pretense that a business account requires the sorting and processing of many more transactions than a personal one, and so requires more admin.

For many small businesses, this is actually in practice quite often not the case.

 

If you are a sole trader (as opposed to a company), the fact is, that there are no statutory laws or legal requirements to actually run your business through a business bank account.

 

The only legal onus upon you as a small business are the usual ones such as properly accounting for, filing and paying your tax.

 

The only possible benefits of using a business account are that you may be able to get a larger overdraft and maybe sometimes slightly better rates on borrowing. Then of course there are the possible image benefits to your customers and suppliers of having a company name on cheques etc (but most take very little notice of such things anyhow).

 

My suggestion is that you maybe consider opening another personal account elsewhere, and use that to trade, gradually transferring all transactions to this new account. Then close the business account once you no longer need it. No laws are being broken by you in such circumstances.

Most banks will simply be happy for the custom (especially in such times), and if the number of transactions are not excessive, then as they will be benefitting from use of your credits, they will turn a blind eye, and be quite content to not rock the boat if they suspect your actually using the account for any kind of business (especially if you threaten to take all your credits elsewhere).

 

You will also have to be completely above board about keeping your business and personal transactions distinct from each other for tax purposes (no trying to sneak your personal weekly food shop through as a business expense), so this is why I would suggest actually having a separate personal account.

 

The other alternative if you have to (eg: your a limited co etc) or feel you really want or need to have a business account, is to shop around.

If your company is actually doing okay, then in the current climate you might be able to find a bank that will actually offer free business banking, at least for some term such as a year (and then you can simply switch, or re-negotiate by threatening to switch again once the term is up if you want).

 

This is all of course if your operating mostly in credit.

If however, you are mostly operating with an overdraft this could all be more difficult.... but even then, you might be surprised if you shop around, or gradually reduce such borrowing with credits from your new account.

 

If you also perhaps think you need a business account because your also using your business account for merchant services (such as taking online or over the phone credit card payments), then there are some other useful alternative to this offered by such companies as Paypal etc, who provide online terminal facilities, giving you perhaps a cheaper pay as you go means to deal with these.

 

 

PM

[TheyrCriminals]

Hi Guys,

 

Can someone please tell me how I go about making a data subject access request in order to obtain the video/audio footage of me in a Natwest branch last month? I understand under the Data Protection Act 1998 I am entitled to this footage on paying the DPA fee of £10.

 

Thanks.

 

TheyrCriminals

[TheyrCriminals]

Hi Photoman,

 

Really stuck on this one. I checked out your links, thanks for that. I understand that I may be able to obtain statements going back further than 6 years under Civil Procedure rules (which is what we're trying to do for a Natwest business account). But I don't see how this will work, even if it is for an intended action, if Natwest simply turn round and say to the court their systems do not keep records for statements longer than 6 years. What can I do?

 

TheyrCriminals

[photoman]

Hi Photoman,

 

Really stuck on this one. I checked out your links, thanks for that. I understand that I may be able to obtain statements going back further than 6 years under Civil Procedure rules (which is what we're trying to do for a Natwest business account). But I don't see how this will work, even if it is for an intended action, if Natwest simply turn round and say to the court their systems do not keep records for statements longer than 6 years. What can I do?

 

TheyrCriminals

 

Okay,

 

Natwest would say that wouldn't they!!

 

But remember, until such time as they state such in front of a judge, such a statement is pretty much just informal.

 

If they actually continue with this tact in front of a judge, and then if at any later date such a statement is found to have been deceptive, then the person(s) making such could be found guilty of contempt of court, perjury, conspiracy to pervert the course of justice etc etc.... and such acts carry very heavy penalties.

 

What you would be requesting of a judge in a court is a compliance order from him, one that forces the bank to reveal (or even be investigated) for all they have.

 

If such an order is granted, then the bank could even be open to investigation by officers of the court if they feel they have not complied or are lying, so would be in serious do do if it is found that they have been lying and concealing such information or its availability.

 

 

This is all well and good, if you can get the judge to issue such an order.....

 

....however, there is one obstacle to this that the bank could raise, blocking such an order being made.... and even possibly creating a liability for costs from you.

 

Simply put, the CPR rules used state that they should only be used in circumstances where a case is in progress, or there is one in preperation that has reasonable chance of success.

 

The problem I encountered was that the banks barrister raised the point that the information being requested was in relation to a stated action of reclaiming bank charges.

He then cited that as any such action would only be stayed anyhow (due to OFT case), and/or may not even have a reasonable chance of success, then my call for an order for dislosure was premature, and/or was for an action that had little chance of success.

 

The judge conceded to this argument, and declined to issue an order for compliance at such time, stating that the current proceedings would simply be stayed.

He then stated that the action could later be restarted by either party at any point in the future.

 

However, the banks barrister then went on, and tried to claim costs against me for the bank, on the basis that they had incurred such dealing with this.

 

The judge (thankfully) then reposted by stating that he had only stayed the current action, so the case was not decided in either sides favour.

 

Costs would only become liable at the conclusion of the action, and so if any point in the future the action is restarted, and concluded, then any assessment of costs would be made and awarded to the winning party.

 

Now, it's very very very unlikely that the bank would restart such an action (after all why would they want to put themselves into a position whereby that are forcing themselves to comply with a disclosure order on the basis that I may be entitled to make a claim).

As for myself, I am actually satisfied with what I presently have, and if I use it as the basis of a claim, and the bank then produce something out of the hat that could undermine my claim; I can then bring to the judges attention in the fact that the bank have previously made a formal declaration in a court stating that all they have given me is all they have.

So I would then have a case for fraud, misrepresentation, conspiracy to pervert justice etc etc.

 

Anyhow... I digress....

 

How does this affect you ?

 

Well, if you actually wind up in court, and the bank start making declarations about how you have not identified a cause of action that has a reasonable chance of success, you could then point out that at some time in the future you may very well have (dependent on OFT case outcome).

So if he is unwilling to issue a compliance order at that point, then rather than dismiss your claim, he perhaps instead consider staying the current action pending the final outcome of the OFT case.

Then at conclusion of the OFT case, at such point either party would be free to recommence the present action.

 

If this agreed to, then you should also be able to avoid any possible costs implications.

 

If the OFT case presents an opportunity or cause of action for you in the future, then you could recommence the action, and you would then be likely to get such an order (as you have a cause of action). Then in such case you would not have to face any costs.

 

If the OFT case doesn't provide an opportunity, then there's no point trying to get the info anyhow. So the case remains on hold, with no liability or costs for either side.

 

Either way, you still get to avoid any costs implications.

 

 

PM

[TheyrCriminals]

Hi Photoman,

 

Thank you very much for that detailed post, I am very grateful to you. I will look it over again and get back to you.

 

TheyrCriminals

[swayze]

Could anyone clarify please The OFT state here

 

The Office of Fair Trading: OFT welcomes Court of Appeal judgment

 

That "It is also relevant to businesses across the whole economy".

 

How is it relevant if business accounts are not governed by the UTCC regulations. Somebody may like to point out to the OFT that they are sending out confusing messages.

[photoman]

Could anyone clarify please The OFT state here

 

The Office of Fair Trading: OFT welcomes Court of Appeal judgment

 

That "It is also relevant to businesses across the whole economy".

 

How is it relevant if business accounts are not governed by the UTCC regulations. Somebody may like to point out to the OFT that they are sending out confusing messages.

 

 

The wording has to be read within the fuller context of the statement it is delivered in.

 

ie:

 

 

21/09 26 February 2009

 

The OFT welcomes the Court of Appeal's very clear confirmation today that the unarranged overdraft charging terms for personal current accounts can be assessed for fairness.

 

The Court found that these terms are not part of the core or essential bargain between a consumer and their bank, and therefore consumers do have protection under the Unfair Terms in Consumer Contract Regulations (UTCCRs) for these terms.

 

This judgment confirms the OFT's long-held interpretation of this important aspect of consumer law, and is one that consumers themselves would identify with. It is also relevant to businesses across the whole economy

 

 

My interpretation here, is that the ruling has wider implications; in that any business (across the whole economy) that attempts to put terms relating to some form of charges (that are not part of the core bargain)into their contracts with their consumers, will too also now find such terms are subject to assessment under the UTCCR.

 

However... I do also agree that the way it has been presented is a bit misleading !!

 

PM

[askl]

Photoman,

 

I agree, there are wider implications, businesses will have to be much clearer upfront at the time of agreeing any contract on all the terms, or expect loaded charges to be challenged in court.

 

ASKL

[ork]

First time I have entered these sites.

 

Is there anyone else out there, whose bank is sitting on credit balances now frozen, a mortgage that the bank is quite happy to bounce on itself, even though the money is in one of two accounts and they want to foreclose.

 

I am quietly going insane about the unfairness of this situation and I have not even started to talk about charges.

 

This is a business that has been around for about 20 years, has turnover, in good year of just over a million, which it should be doing this year but given the credit crunch has only acheived 305,000, due to lack of credit, have laid off 3 full time staff and 8 part timers.

 

What credit has been available has been squeezed so that in effect the bank is effectivley putting me out of business.

 

In December thay took £914 in charges on the current account and £1200 on the factoring account.

 

Any comments

 

Ork

[slick132]

Hi Ork and welcome to CAG.

 

The forums are full to brim of cases where the banks are acting with little, if any, regard for their customers.

 

They appear to have no concern for the consequences of their actions, even when they know full-well that their actions will leave a business unable to operate.

[ork]

Hi CAG

 

Glad to hear that I am not the only one. Although I know this, I live in orkney where the Bank of Scotland is running rough shod over many businesses. Banks are doing the same throughout the country, but in a very small community it is armagaddon. My accountant is worried sick- so what-he is though, a voice that has a perspective.

 

Cannot there be created a voice to take on the banks, that can find a lawayer to work on a no fee no win basis, to shame the banks and the government and hopefully make a small fottune for themselves?

 

Ork

[photoman]

Welcome Ork,

 

Nice to have you on board.

 

Your story is shocking, but also sadly all too familiar.

 

I do hope things work out for you (and all your current and ex employees).

 

Hopefully you can all find some help and advice on here.

 

Best regards

 

PM

[TheyrCriminals]

Hi Guys,

 

Has not the time now come to implement a new strategy for business claimants. We now have to accept that the penalty argument for most business claimants is finished. The penalty avenue still remains slightly open for some RBS/Natwest business customers, and in the absence of any appeal by RBS/Natwest shouldn't claimants who were charged between 2001-2003 be applying to have their complaints heard and their stays lifted?

 

So isn't it now the time to return to court and have our individual business claims heard by a judge. Afterall the judge hearing the test case did not, as far as I know, look at a single business contract or consider the banks' business terms and conditions, this was simply not the Court's remit. The penalty argument in relation to consumers and consumer contracts certainly was covered but not business account holders.

 

Any thoughts?

 

TheyrCriminals

[TheyrCriminals]

Bump

[photoman]

Theyrcriminals

 

I don't think everyone is necessarily ignoring you, I just think everyone is a bit unsure what to do at the moment.

 

I totally agree with you regards the fact that no business t&c's have been considered throughout the OFT case, and so it's a really gross injustice that any rulings on personal accounts should then encompass business contracts.

 

It would perhaps be nice to see a few RBS/ Natwest business claims go the whole 9 yards, which might then perhaps highlight the plight of business claims, and also the injustice of the OFT case ?

 

Other than that; Things are still going on behind the scenes at CAG, and there are still a couple of very powerful alternative approaches currently under test.

But these really need to be kept under wraps and tentatively tested out before more general release.

 

I would really love to give you all more info on such, but doing so could jeopardize their success, and until we have the first results back nothing more can be revealed.

As to when this could happen, I really cannot say or make any promises, as such timing is down to so many factors (claimants own case and momentum, courts consideration and opinion etc)

 

So all I can say at the moment, is that there is still hope, and hang on in there.

 

 

 

PM

[gandolfi]

I totally agree with you regards the fact that no business t&c's have been considered throughout the OFT case, and so it's a really gross injustice that any rulings on personal accounts should then encompass business contracts.

 

It would perhaps be nice to see a few RBS/ Natwest business claims go the whole 9 yards, which might then perhaps highlight the plight of business claims, and also the injustice of the OFT case ?

 

 

 

 

PM

 

Hi photoman and Theyrcriminals (and everyone)

My case

http://www.consumeractiongroup.co.uk/forum/business-claims-bank-charges/81525-gandolfi-natwest-9.html

is a counterclaim against NatWest that is 90% Business with 10% personal claim included.

Could you tell me what the situation is regarding NatWest and the loss of their appeal(?) and what implications this might have on my case. It is stayed at the moment, but I'm eager to raise the challenge if there is a way...

Many thanks,

Gandolfi

[MARTIN3030]

The position is that Claimants with Business accounts on stay that rely on terms and conditions which were deemed unfair in Natwests appeal should apply on notice to have the stay lifted.

The basis for the application is self explanatory,and needs to include as supporting evidence,the Judges directions from the trial.

[gandolfi]

The position is that Claimants with Business accounts on stay that rely on terms and conditions which were deemed unfair in Natwests appeal should apply on notice to have the stay lifted.

The basis for the application is self explanatory,and needs to include as supporting evidence,the Judges directions from the trial.

 

Thanks Martin3030

My counterclaim is for the period from early 1990s to 2004 - does this apply? How do I apply to have the stay lifted? Could you give a link to more information about this - and NatWest's appeal - as I have been a bit out of the picture lately.

Many thanks!

Gandolfi

[MARTIN3030]

You need to apply on notice using form N244 which you can download from Welcome to hmcs.co.uk you can fill it out and print online.

 

Its fairly straightforward.

In the box which asks what order you are applying for-you state "Removal of the stay ordered in this case on......"The reason is outlined in my witness statement and attatched supporting documents"

 

The witness statement gives a brief outline of the test case directions.

Attatchments include the wording of the hand down given in February following the appeals by Natwest and others.

[MARTIN3030]

I am in the process of putting something together for another claimant with this-Its not finished yet but hopefully will be done over the weekend.

This can then go as a stickie in the Business charges forums here.

[gandolfi]

I am in the process of putting something together for another claimant with this-Its not finished yet but hopefully will be done over the weekend.

This can then go as a stickie in the Business charges forums here.

 

Great, thanks Martin3030! I look forward to reading the stickie next week...

 

I've been trying to find more background info on why Nat West's historical terms may still be termed 'penalties' (as I think TheyrCriminals has too) and what was said in February's appeal hand down that implies this. This sounds like good news for my claim which is almost entirely pre-2003.

 

I'm eager to get going again if people think there is a possible route through. Any further information would be much appreciated.

 

My thread http://www.consumeractiongroup.co.uk/forum/business-claims-bank-charges/81525-gandolfi-natwest-9.html gives a (fairly long-winded) history of my case which is currently stayed...

 

Cheers all

Gandolfi

[gandolfi]

I am in the process of putting something together for another claimant with this-Its not finished yet but hopefully will be done over the weekend.

This can then go as a stickie in the Business charges forums here.

 

Hi MARTIN3030

Just wondering if there had been any progress with the stickie re: Natwest stay removal for business accounts...?

Many thanks,

Gandolfi:-)