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What is it you want to achieve please?
not to owe the bank!!
If the loan has not been signed, how can they seek to enforce it?
Have proceedings been issued?
no the loan has not been signed and proceedings not commenced
Ok - and the PG was blank?
the pg was signed but was cleared by the new loan drawdown
Ok - were you released from it?
from their correspondence it states that when the new loan was provided it enabled me to repay my guarantee liabilty
But does the PG say you are discharged once the loan is repaid?
i can't find any correspondence in the file, is there anywhere else i should look?
It should say on the PG
But in short:
If the 1st loan was repaid then you should be released
That is because there is no further guarantee
Unless the PG states it is continuing until discharged
In any event the loan is not signed
If it is not signed, it is not executed
If it is not executed then there is no contract
It therefore fails at the first hurdle
Can I clarify anything for you about this today please?
if there is no contract but the bank has in fact used those funds to clear the original debt how does that work??
The bank can't - it has no authority to do so
In any event there was a misrepresentation in terms of value
They have a duty to act with all good faith - they did not do that
I dont think based on what you have said, they would win at court
The problem with the contract is the main area
Can I clarify anything else?
how should i proceed, at present they are sitting on a limited amount of security but with a owed sum always increasing. the bank are well aware of all their mistakes along with the more serious issue regarding misrepresentation. someone is at fault, the bank, valuer or solicitor? how can i bring this to an end?
You should get a Solicitor to write to them and set out your position.
This will cost around £200 but may well end up closing the matter
Or you could consider complaining to the Financial Ombudsman
They offer a free service
Their website is: www.financial-ombudsman.org.uk
with respect to the ombudsman are they totally impartial, could they still argue 'well you did have the original money after all?' or will they take into consideration failure to mitigate, misreprensenation etc
They will take everything into account.
But if course if the Bank know they are in trouble it may not be pursued
Which is why you should get a Solicitor to write a letter
agreed, one final point why can't i just sue the valuer for the current balance owed to the bank for his negligent valuation?
You could but then they could try and bring a counter claim
You dont want any risk of that
You want the loan PG to be gone
Therefore go via a Solicitor first
just before i go to the solicitor i did originally make a nominal offer (£1.00) in full and final settlement which was of course refused. their litigation department know they are in the wrong and said best to wait for my complaint to be addressed. would it be wise to go back with another small offer or even a part 36.
Part 36 yes
That is tactical
you say i could risk a counterclaim if i issued against the valuer, who from?
Well have you overpaid anything?
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Remember - litigation is ALWAYS a risk
with respect to a part 36 if i believe they have failed mitigate their losses in full coupled with the misrepresentation issues where should i pitch my offer? sorry to put you on the spot!!
I am glad you have asked me - what do you consider to be the best pitch for you?
if i believe i should owe them zero why should i offer them anything. the undertaking is still valid and they also withdrew their proof of debt...
Yes then you could keep the Part 36
my first offer was not a part 36 it was just in full and final settlement
Ok - it might be worth putting that as a Pt 36
seeing as the part 36 route is mainly aimed at costs should i still get a sol to write an accompanying letter. i must stress i have already informed them i have taken advice but have given no cost details
You should still get a Sol to write
They may take it more serious
thanks alex, i'll let you know what happens if that's ok. there may also be a follow up question if i come across anything else in their file
Sure, please put for my attention
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thanks alex, just the answer i was looking for and confirmation of my thoughts too....................cheers
the bank has come back indicating that it is not uncommon practice for the bank to drawdown the loan monies and this is evidence in itself that there is a binding contract between us.