Yes put it out of mind and get on with enjoying Christmas. The chances of them coming after you personally are NIL!

What they are asking is do you have grounds to sue the Director personally not that you can. Who was your contract with the Company or the Director personally?

I have used arguments successfully on the link that numbers666 put up earlier. The problem with this one is that it is clearly headed "Credit Guarantee" and you cannot argue the misreprentation angle on this as it is clearly headed and in bold. As previoulsy advised you need to argue that you signed in a personal capacity and that the terms of the guarantee are unreasonable. I spoke with a lawyer last week about this and he said he beleived that I had been lucky with the results I had previoulsy and if they had got in front of a judge I would have lost - his argument was 'it is was it is a guarantee and you signed it'. We are also seeing the same thing come up in Court with Judges in relation to credit card application forms. Even though they may not strictly adhere to the correct format under the CCA1974 you signed it so therefore you owe the money! The laws and ass and so are lawyers. Personally I would negotiate with them and offer30-50% over 12 months

I said in previous posts that you would probably struggle on this one as it is one of the newer account application forms that you signed that clearly says "Credit Guarantee". The main thrust of the arguement is not misrepresentation but that you signed in as a consumer and not in a business capacity. You need to go back at them with that re-stating the case law I mentioned previously You then need to reiterate the reasonable test As stated initially I always thought you'd struggle with this one but keep going back to them and offer a bit more.

Andrew1 Yes things have tightened up a lot since then because as you suggest too may companies failing!!

This is correct they have to exhaust all possible routes to get the money back before they Govt will pay out annd they have to show they have done so as well. Basically the Govt. will only pay out the 75% they guaranteed if the Directors are bust personally or have no assets to which to put a charge over. Obvioulsy Directors aren't told this when they sign up for the SFLG schemes

BD Have just had a look at this thread after our exchange on the other one and I would say you should be fine on this and adapt my posting to suit these circumstances. Also your point 3 about the company not being in Admin or Liqudiation is relevant as your company(s) have not entered into any formal of formal insolvency and therefore this clause is badly worded by the accountant. Point 4 is also relevant. Need any help just shout

BD I hope it helps and please keep me updated on the case.

BD The missing points are not particuarly relevant to this case and have given an indication of them as above. Basically I chucked the kitchen sink in and muddy the waters with regards to the PG so much that they withdrew the case which was for £13K. I have used the same argument on another one and they have indicated they are also withdrawing and I am just waiting for confirmation from the Courts that it has been discontinued.

There were basically due to the ambiguity of the wording and the common law principle of "contra proferentem" where ambiguity in a clause has to be strictly interpreted contrary to the interests of the party seeking to rely on it. The fact that the guarantee clause was not brought adequately to my attention and that I had not intention of entering into a PG.

It was a builders merchants trade account so is different to this case

Below is an extract I used succesfully in a recent case regarding a PG and personal liability for it when signing as a Director. Obvioulsy each case will be different and you will need to provide evidence as to why the terms were unreasonable. The main thing is to show that you signed it as a consumer and therefore afford protection under the UCTA I did not sign the Transfer Form in a personal capacity but as a Director of XXX Limited. It is further submitted that 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 XXX Ltd. My involvement as a guarantor was purely a personal matter between myself and XXX Ltd 3) My trade or profession is not that of guarantor and I did not provide this guarantee in return for a fee or commission. 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. 9) What is purporting to be a personal liability is incorporated in the body of a document which is clearly designed to impose liability on XXX Limited and not myself personally. 11). It has been shown above that I am a consumer in this case. Under the Unfair Terms (Consumer Contract) Regulations 1999 (regulation 8) an unfair term is not binding on the consumer and therefore I cannot be held liable for the XXX Ltd debt. 13) 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 a imbalance in the parties rights and is to the detriment of myself financially.

The most up to date place to find out the status of a company is Companies House. If it is not listed on there as being in some form of insolvency then it won't be. All CVA's, appointment of Adminsitrators or Liquidators have to be filed at Court by the IP. To claim from the RPO the company needs to be in a formal insolvency procedure. If the company hasn't done this your FIL could present a winding up petition against the company which would cost him about £2K but he would need a solicitor to do it.

I would strongly recommend that you go and see a solicitor for this

It won't be HMRC that strike the company off it will be Companies House for non filing of statutory accounts and Annual Return. CH are fairly hot on this these days and they apply fairly qucikly after non-compliance. So yes ignore the letters and they will apply for the strike off automatically. Unfortunately this could mean HMRC object again. My opinion is just ignore CH filing, ignore HMRC threats, do not offer to pay them anything (the company owes the money not you), do not pay them anything and just forget about it and get on with your life. They cannot come back to you demanding money in a few years time unless the company is formally liquidated and the liquidator files an adverse report to the DTI about your conduct as a Director which IMHO in this instance is very very unlikely. Even then HMRC would have to serve you with a personal liability notice which in itself is rare and difficult to prove. Forget about it and move on.

Alternatively you could save yourself all the stress and do nothing and wait for CH has to strike off the company for not filing the statutory records

Yes you need all the paperwork from Lloyds asap so that you can ascertain if there is a PG or not and prepare a defence. You need to move quickly on this as you only have 14 days to file a defence. Who is the claim against you personally or the Ltd Company. From what you have said I guess you personally but please clarify.

TK - no it was fairly painless for me as I saw it coming some time before so was able to get my affairs in order. Didn't lose the house as was in my wifes name and always had been. No IPO or anything just a clean sheet. It used to be that you could buy the interst back for a £1 if it is was in negative equity but that has changed with the 2yr 3 month rule. You have to buy back the equity in the property which in this case would be £5K. The amount you pay is open to negotiation with the OR especially if there is a spouse or children living at the property. That is correct they have 3 years to deal with your beneficial interest in the property if they don't do it in that time it is returned to you. Yes they do ask for copies of your last 12 months bank statements but can go back further. If you have sold property property in the last 6 years they want to see completion statements.

Yes have been through it myself and personally it was fairly painless but that is not always the case. Not sure they will let you keep the BTL's but that is up to the OR. The definitive advice and guides are on the link I sent you

Thanks for your advice and help. Have been speaking to the customer advocate centre who seem pretty useless. Will keep phoning!

You need to read and understand my post on a previous thread (copy below). Looking at the application form I would say they are on very dodgy ground. Just because their solicitors dismissed it it doesn't mean they are right. You need to quote all of the below to them not just the misrepresentation. How much are they chasing? I also agree with the Mould's line of argument in the fact that the form says "I the director" rather than as you as an individual. You need to put everything in your defence and it is my experience that they will withdraw their claim or accept a low f&f offer.

They will be more inclined to do a deal than Brandon. Good Luck let us know how you get on.

Is that the TP or Brandon one you have made the offer on?

TK38 Sorry to hear of your problems. It would seem from what you have said that CCCS are correct and that bankruptcy would be the best option. With regards to the properties as there is very little equity in the properties the OR would not look to do anything with these for 2 yrs 3 months in the hope that property values have risen and that there is some equity in them at that point. There would seem little point in trying to keep hold of the BTL mortgages and you can either let the OR deal with them or stop paying the mortgage and let them be repossesed. With regards to your own property you could look to purchase the benefcial interest in it from the OR. Have a look at this website it gives all the information you need on dealing with property and other issues http://www.bis.gov.uk/insolvency You are normally discharged from bankruptcy after 12 months but you can be asked to pay a IPO for three years if you have surplus income. From what you have said I guess you are not working and therefore will have no surplus income and would therefore not need to contribute. You can petition for your own bankruptcy and it costs £700 and you can find all the information on how to do it on the above website

Thanks for your reply. There was no letter enclosed for me to send back agreeing to repayment so no I haven't. They just said the refund will be inline with the FOS refund guidelines. Guess it's just a wainting game then and keep phoning