LLoyds Business OD - Unaware of Personal Guarantee ***Case Struck Out and awarded Costs !!***

[toddle2u]

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.

[toddle2u]

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.

 

[toddle2u]

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

[toddle2u]

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.

[toddle2u]

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.

[toddle2u]

BD

 

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

[toddle2u]

Gaston is right, you would struggle to argue against what you signed here if they are able to come up with the original to prove that it was one document and that they are able to amend their pleading to a guarantee rather than a credit agreement.

[toddle2u]

Yes it's an offer to settle - for you to pay them the £8K over the next 23 years!!!! Personally I would reject it and if you do want to settle and have it done with make them a counter offer on your terms or wait for the outcome of the strike out hearing