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Whats the Best legal route to take ?
17 Answers
Hi,
I run a Finance Brokerage and have a situation where an individual owes my firm �8000.
This follows us transacting a loan for him and an existing lender if his required an undertaking that �8000 of an �18000 debt would be discharged upon loan completion. We gave this undertaking (on the clients instructions) on the understanding that the incoming lender would discharge the �8000 by sending it to the other lender directly, this is a normal situation for us.
The incoming lender did not receive our fax notification of the interested party and consequentially paid all of the funds to the client, who quickly spent them and left us exposed - due to the undertaking. The client is now, bizarrely, denying any knowledge of agreeing to the �8000 undertaking, despite recorded call logs and written evidence, held with oth us and the lender who was due the �8000.
I want to get a CCJ against them and then go for a Unilateral notice against his property that protects my debt - is this the fastest / best route to success?
I must solve this quickly and any advice is gratefully received, many thanks.
I run a Finance Brokerage and have a situation where an individual owes my firm �8000.
This follows us transacting a loan for him and an existing lender if his required an undertaking that �8000 of an �18000 debt would be discharged upon loan completion. We gave this undertaking (on the clients instructions) on the understanding that the incoming lender would discharge the �8000 by sending it to the other lender directly, this is a normal situation for us.
The incoming lender did not receive our fax notification of the interested party and consequentially paid all of the funds to the client, who quickly spent them and left us exposed - due to the undertaking. The client is now, bizarrely, denying any knowledge of agreeing to the �8000 undertaking, despite recorded call logs and written evidence, held with oth us and the lender who was due the �8000.
I want to get a CCJ against them and then go for a Unilateral notice against his property that protects my debt - is this the fastest / best route to success?
I must solve this quickly and any advice is gratefully received, many thanks.
Answers
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Based strictly upon your statement, at this time you have suffered no loss and cannot proceed against anybody. However, if the incoming lender can prove a contract with you (and from what you say it will not be in the least bit difficult) then the incoming lender can proceed against you for breach of contract and/or negligence the resolution of which will in essence be that you buy the debt from them for the �8000 plus their costs and damages and then yourself recover the �8000 only from your client in accordance with the original terms of the debt. The fact that your client has spent the �8000 is a red herring and has no bearing upon anything. You have been grossly negligent and it is for you to make good your negligence to the incoming lender by taking over the debt and paying their costs either voluntarily or by by you being dragged through the courts.
Sorry, I have mixed up your terminology which are not the terms I would use (it's late, and I've had a hard day!). It is the person whom you describe as "the other lender" who is damaged by your negligence, who will no doubt prove that their is a contract with you to pay the debt, and who will proceed against you essentially requiring you to honour your undertaking. You will recover your money by pleading for your clients debt to be transferred to you so that you can be repaid in accordance with the original loan terms - your negligence has forced you to take the place of "the other lender".
To clarify Mustafa, we have already paid the 3rd party lender, as we recognise that the undertaking is a legally binding contract. I am sorry for not clarifying this in my original post.
I fail to see how we have been negligent when it is not us who were due to pay the �8000, it was the borrower. He was the one who failed to pay the 3rd party lender and, consequentially, we have, without arguement, settled the matter amicably with this lender and now seek to recover our debt.
Our arguement is; that the client did not fulfill his agreement (this is provable via written and recorded telephone contact with both us and the 3rd party lender) to pay the �8000 and, as a consequience, we have had to discharge his debt. The debt is still his in our eyes, just owed to us now instead.
We seek to secure this debt by way of a Unilateral notice, unless somebody on here has an improved method of recovery.
I am not bothered how or when this client repays us, just that it is secured on his property to protect our interests.
I hope that this provides more of an insight to any learned readers.
Many thanks
I fail to see how we have been negligent when it is not us who were due to pay the �8000, it was the borrower. He was the one who failed to pay the 3rd party lender and, consequentially, we have, without arguement, settled the matter amicably with this lender and now seek to recover our debt.
Our arguement is; that the client did not fulfill his agreement (this is provable via written and recorded telephone contact with both us and the 3rd party lender) to pay the �8000 and, as a consequience, we have had to discharge his debt. The debt is still his in our eyes, just owed to us now instead.
We seek to secure this debt by way of a Unilateral notice, unless somebody on here has an improved method of recovery.
I am not bothered how or when this client repays us, just that it is secured on his property to protect our interests.
I hope that this provides more of an insight to any learned readers.
Many thanks
I do not understand why you are being so vexatious about this Mustafa. If you have some constructive guidance to offer, I will be most glad to hear it.
My question and follow up comments are indeed aimed at 'AB learned readers', are you one of them? So far as I was aware, this is not 'Mustafabank' and other people may have valuable opinions to.
You come across as a knowledgeable guy but, for some reason, you seem to enjoy almost taunting people and holding back with any tangeable, constructive advice that you may be able to offer. I have noticed this in your answers to other peoples questions and see no real need for it.
If you have some insight that may help me end this issue and have knowledge that indicates a deeper problem, I will naturally be very grateful to hear it. If you no longer feel inclined, that is your right, but hardly enters into the spirit of Answerbanks primary purpose, does it now?.
Many thanks
My question and follow up comments are indeed aimed at 'AB learned readers', are you one of them? So far as I was aware, this is not 'Mustafabank' and other people may have valuable opinions to.
You come across as a knowledgeable guy but, for some reason, you seem to enjoy almost taunting people and holding back with any tangeable, constructive advice that you may be able to offer. I have noticed this in your answers to other peoples questions and see no real need for it.
If you have some insight that may help me end this issue and have knowledge that indicates a deeper problem, I will naturally be very grateful to hear it. If you no longer feel inclined, that is your right, but hardly enters into the spirit of Answerbanks primary purpose, does it now?.
Many thanks
O woe is me, I am undone. I am not a Learned Reader. I am a vexatious Mustafa.
However, I repeat (a) that you seemingly do not properly understand your situation, and (b) that you are exposed to two potential further claims in the matter, one of which could run away with quite a lot of your money. But, as you say, it is not MustafaBank, so I'll shut up and clear off.
O woe is me, I am a silly Mustafa.
However, I repeat (a) that you seemingly do not properly understand your situation, and (b) that you are exposed to two potential further claims in the matter, one of which could run away with quite a lot of your money. But, as you say, it is not MustafaBank, so I'll shut up and clear off.
O woe is me, I am a silly Mustafa.
I am not exposed to any further claims whatsoever and you are just doing a good job of demonstrating your immaturity now.
I came here in the vain hope of some sensible guidance, in advance of seeking formal legal advice. Clearly, people like you take more pleasure in wasting other peoples time than offering friendly, constructive guidance.
I do not understand your motivations Mustafa, they are sure not about helping people, more like satifying your unusual brand of humour. Thanks for nothing.
I came here in the vain hope of some sensible guidance, in advance of seeking formal legal advice. Clearly, people like you take more pleasure in wasting other peoples time than offering friendly, constructive guidance.
I do not understand your motivations Mustafa, they are sure not about helping people, more like satifying your unusual brand of humour. Thanks for nothing.
You are exposed to two claims, one of which has the potential to be very expensive for you. The event(s) that will trigger these claims may not yet have occurred, and if they do will then require someone with sufficient nous to set the dogs on you. I would not have made this statement if it were not totally true, even though I have not dealt with your immediate problem. How the hell can I? Each time I prod you you change your statement and become petulant. In your first statement you say that the 2nd lender was due to pay the 1st lender the �8000. In your second statement you say it was the debtor. Make your blessed mind up. In your first statement you fail to say that you compensated �8000 to the 1st lender, in your second statement you say that you have. What exactly did you do? You fail totally to explain how, why and by whom �8000 of the �18000 debtor's debt to the 1st lender was transferred by the 1st lender to you. If you care to straighten this up to start with I will see what I can offer.
Mustafa, we meet again, so soon.
OK, I am going to try and clarify the points you raised and hopefully we may get somewhere. Clearly, if you CAN assist and offer clarity, I will be very grateful. If we can do it without winding each other up along the way, that too will be preferable of course.
In my initial statement I stated that the 2nd (incoming) lender should have paid the �8k direct to the 1st Lender. This is accurate, but what I meant by the client being liable to pay them is that it was the clients debt and, therefore, his liability ultimately. The 2nd lender should have not sent monies direct to the client but they had no legal obligation to do otherwise and paying other lenders directly is deemed as a courtesy, rather than an obligation.
I will add another post to clarify where we are presently, with regards the �8k and the 'whys' and 'whats'.............
OK, I am going to try and clarify the points you raised and hopefully we may get somewhere. Clearly, if you CAN assist and offer clarity, I will be very grateful. If we can do it without winding each other up along the way, that too will be preferable of course.
In my initial statement I stated that the 2nd (incoming) lender should have paid the �8k direct to the 1st Lender. This is accurate, but what I meant by the client being liable to pay them is that it was the clients debt and, therefore, his liability ultimately. The 2nd lender should have not sent monies direct to the client but they had no legal obligation to do otherwise and paying other lenders directly is deemed as a courtesy, rather than an obligation.
I will add another post to clarify where we are presently, with regards the �8k and the 'whys' and 'whats'.............
The origins of this transaction are that the client (A) approached us to assist him with brokering a loan. He wished to raise 12k to do home improvements. We were not able to assist him as he had insufficient equity to merit a secured loan. He approached his existing 2nd charge lender (B) and asked them if they would accept �8k of an �18k debt, to reduce his overall LTV (loan to value) and, thereby allowing a new loan to be placed for an overall �12k, with �8k going straight from A to B.
B agreed to this and we obtained the clients authority to transact on this basis, in writing. 'A' also paid for the �106 fee to obtain the required written consent from B. We then applied for and got this accordingly.
We submitted the application to the new lender (C) and forwarded the consent by fax, when it finally arrived from B.
C paid out the new loan of �12k shortly afterwards, but it is here that the problem occured as C paid all funds to A as they claimed not to acknowledge receipt of our disbursement request. We accept this to be a genuine error of course.
B contacted us a week later to ask where their funds were and it is at this point we were 1st aware of the issue. We contacted A who stated they would post the money to B that day. This scenario re-occured three times in the following 2 weeks and finally came to a head when A admitted they had spent the money on a new kitchen and could no longer pay the required sums.
We paid the �8k, without arguement, to B as we were aware that our undertaking had been given but the disbursement was not carried out by C - not the fault of B clearly.
B agreed to this and we obtained the clients authority to transact on this basis, in writing. 'A' also paid for the �106 fee to obtain the required written consent from B. We then applied for and got this accordingly.
We submitted the application to the new lender (C) and forwarded the consent by fax, when it finally arrived from B.
C paid out the new loan of �12k shortly afterwards, but it is here that the problem occured as C paid all funds to A as they claimed not to acknowledge receipt of our disbursement request. We accept this to be a genuine error of course.
B contacted us a week later to ask where their funds were and it is at this point we were 1st aware of the issue. We contacted A who stated they would post the money to B that day. This scenario re-occured three times in the following 2 weeks and finally came to a head when A admitted they had spent the money on a new kitchen and could no longer pay the required sums.
We paid the �8k, without arguement, to B as we were aware that our undertaking had been given but the disbursement was not carried out by C - not the fault of B clearly.
We are now in the bizarre situation (since I first posted this question) where A is now saying they never gave their consent for B to receive �8k and that we should settle the debt without recourse on them. This is despite clear written evidence (signed authority) and recorded call logs with both us and B making it abundantly clear that the client was fully aware throughout and that it was, indeed, his idea.
I think I have clarified the scenario a bit more clearly for you, please ask for any other detail that you need to properly assess the situation as you see it.
Many thanks
I think I have clarified the scenario a bit more clearly for you, please ask for any other detail that you need to properly assess the situation as you see it.
Many thanks
When B approached us for the �8000, they were happy to allow time for the A to forward the funds to them. When this did not happen in a reasonable timeframe (one month), they amicably requested that we settle the �8000 we had undertaken they would get. They, naturally, reminded us at this point that the undertaking we had made was legally binding and that we had to settle with them, then pursue our 'loss' with A directly.
We paid the �8000 claim without arguement and B acknowledges that this fully settles any amounts due under the terms of the undertaking without further liability. We have that statement in writing from B, signed by their in-house Solicitor.
I hope this answers your question.
P.S. B has further indicated (off the record) that we have a strong case to claim against A as it is open knowledge that B has substansive evidence that A instigated and consented to the idea of paying the �8000 off (thus firmly negating the ridiculous claim that A was totally unaware of our actions). B have said that unless a court ordered them to, they cannot release documented evidence due to DPA restrictions. They have said that if a court so ordered them too, they would release all records without hesitation.
In legal terms it may mean nothing, but B has a lot of sympathy for our situation, in that they can see the client has taken advantage of this situation and is effectively trying to obtain �8k of debt relief, without having to repay it, by fraudulent means. We can be 100% that B have the evidence that will support all that I have said.
We paid the �8000 claim without arguement and B acknowledges that this fully settles any amounts due under the terms of the undertaking without further liability. We have that statement in writing from B, signed by their in-house Solicitor.
I hope this answers your question.
P.S. B has further indicated (off the record) that we have a strong case to claim against A as it is open knowledge that B has substansive evidence that A instigated and consented to the idea of paying the �8000 off (thus firmly negating the ridiculous claim that A was totally unaware of our actions). B have said that unless a court ordered them to, they cannot release documented evidence due to DPA restrictions. They have said that if a court so ordered them too, they would release all records without hesitation.
In legal terms it may mean nothing, but B has a lot of sympathy for our situation, in that they can see the client has taken advantage of this situation and is effectively trying to obtain �8k of debt relief, without having to repay it, by fraudulent means. We can be 100% that B have the evidence that will support all that I have said.
OK.
(1) You have no claim upon A whatsoever. None at all. What they have said is not bizarre, it is correct You should now leave them entirely alone lest they cry harrassment.
(2) Your problem is entirely with B. It is best explained by my saying what should have happened:
(a) your reply to the approach by B should have been an offer to buy �8K of A's debt to B for �8K of immediate cash plus an indemnity for B's costs
(b) upon acceptance, each party should have instructed solicitor's to exchange documentation transferring the debt in a form acceptable as proof to the Land Registry, and then
(c) cancelled B's �18K registered charge (now called a restriction) on A's property at the Land Registry
(d) and at the same time registered a revised �10K restriction for B
(e) and also at the same time registered an �8K restriction for you.
The cost of this to you would have been about �1K -�1.5K (2x �500-�750). Both sides should then have notified A of the change of ownership of the �8K (A cannot object) and you should have told A how to pay you pro-rata to the pre-existing rate of repayment. Even now this is the only way that you are able to secure your �8K. Since you are can still make contact with B you should put it to them. But be very careful, very, very, careful, to strike the right note - without going into it all you have in fact placed yourself on shaky ground. In deliberately telling you wrongly that you have to settle your loss directly with A I am suspicious that B is deliberately pointing you in the wrong direction in order to keep your �8K and A's �8K debt as well - and they stand a good chance of doing it.
(1) You have no claim upon A whatsoever. None at all. What they have said is not bizarre, it is correct You should now leave them entirely alone lest they cry harrassment.
(2) Your problem is entirely with B. It is best explained by my saying what should have happened:
(a) your reply to the approach by B should have been an offer to buy �8K of A's debt to B for �8K of immediate cash plus an indemnity for B's costs
(b) upon acceptance, each party should have instructed solicitor's to exchange documentation transferring the debt in a form acceptable as proof to the Land Registry, and then
(c) cancelled B's �18K registered charge (now called a restriction) on A's property at the Land Registry
(d) and at the same time registered a revised �10K restriction for B
(e) and also at the same time registered an �8K restriction for you.
The cost of this to you would have been about �1K -�1.5K (2x �500-�750). Both sides should then have notified A of the change of ownership of the �8K (A cannot object) and you should have told A how to pay you pro-rata to the pre-existing rate of repayment. Even now this is the only way that you are able to secure your �8K. Since you are can still make contact with B you should put it to them. But be very careful, very, very, careful, to strike the right note - without going into it all you have in fact placed yourself on shaky ground. In deliberately telling you wrongly that you have to settle your loss directly with A I am suspicious that B is deliberately pointing you in the wrong direction in order to keep your �8K and A's �8K debt as well - and they stand a good chance of doing it.
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