Bank cannot provide signed guarantor loan agreement - is it enforceable?

Discussion in 'Insolvency' started by BusyBeeBee, Oct 10, 2019.

  1. BusyBeeBee

    BusyBeeBee UKBF Newcomer Free Member

    19 2
    Hello you very helpful, knowledgeable people!

    I have a strange issue and I wonder if anyone can offer any advice please?

    A year ago Barclays Bank asked me to personally pay back a company overdraft for a now dissolved limited company, stating I was the guarantor. Each time I asked them to provide a copy of the signed overdraft agreement they sent a blank non-signed/dated agreement and just said “it was signed electronically”. It went quiet until 8 weeks ago when they wrote again stating I should repay it as the personal guarantor, or it will go to a debt collector. I wrote again, this time they raised it as a complaint. 8 weeks later (the maximum time to have sorted out a complaint) I received the same non-signed/dated agreement stating “it was signed electronically” and that it is payable.

    There is no Docusign Security information, i.e. Certificate of completion, Record Tracking, Signer Events, Dates Stamps, Record of IP address or any Authentication Details.

    Is it enforceable?

    Many TIA
     
    Posted: Oct 10, 2019 By: BusyBeeBee Member since: Jun 30, 2018
    #1
  2. estwig

    estwig UKBF Legend Free Member

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    The burning question: Did you sign it?
     
    Posted: Oct 10, 2019 By: estwig Member since: Sep 29, 2006
    #2
  3. BusyBeeBee

    BusyBeeBee UKBF Newcomer Free Member

    19 2
    I don't remember signing this one, it was 2016.
     
    Posted: Oct 10, 2019 By: BusyBeeBee Member since: Jun 30, 2018
    #3
  4. Mr D

    Mr D UKBF Legend Free Member

    21,996 2,586
    If they have one signed then it's enforceable. Some banks appear to try it on to get money even if they do not have one.

    If it's electronic then surely something should be on it.

    Thinking back on dozens of electronic documents I have signed there is something on every one.
    Banks not caught up with 21st century?
     
    Posted: Oct 10, 2019 By: Mr D Member since: Feb 12, 2017
    #4
  5. Lisa Thomas

    Lisa Thomas UKBF Enthusiast Free Member

    3,486 436
    I would think they need to prove you signed it electronically.

    Have they given a copy with your electronic signature on it?

    I had a similar issue a couple of years ago with estate agents who admitted they had no way of proving the electronic signature and it wouldn't be enforceable.
     
    Posted: Oct 11, 2019 By: Lisa Thomas Member since: Apr 20, 2015
    #5
  6. Newchodge

    Newchodge UKBF Big Shot Free Member

    14,155 3,731
    If you refuse to pay they would have to take you to court where the first thing they would have to do would be to prove that you made a legally binding agreement with them. It doesn't sound as if they can do that.
     
    Posted: Oct 11, 2019 By: Newchodge Member since: Nov 8, 2012
    #6
  7. consultant

    consultant Your Business Community Staff Member

    5,574 774
    If you signed it, surely you got a copy (before and after) via email?
     
    Posted: Oct 11, 2019 By: consultant Member since: Jan 21, 2008
    #7
  8. BusyBeeBee

    BusyBeeBee UKBF Newcomer Free Member

    19 2
    Thanks for your input everyone. This forum is so helpful.

    The only copy (and saved in my bank online documents section) I have, and have ever had, is the unsigned offer letter. There are no dates or signatures or electronic stamps. I’ve asked for a copy several times and they just keep sending the blank offer letter.

    The bank say to contact the Financial Ombudsman if I don’t agree with their decision that I am liable to pay under the personal guarantee but I think i would prefer the court.

    Shall I write to the bank again to request releasing the alleged liability and if they don’t to take me to court?
     
    Posted: Oct 16, 2019 By: BusyBeeBee Member since: Jun 30, 2018
    #8
  9. consultant

    consultant Your Business Community Staff Member

    5,574 774
    This is VERY different to what you have said before i.e. blank offer letter.

    I am not a solicitor, but, if you accepted the offer by taking the overdraft that might be seen as tacit agreement. Does it mention guarantors?
     
    Posted: Oct 16, 2019 By: consultant Member since: Jan 21, 2008
    #9
  10. BusyBeeBee

    BusyBeeBee UKBF Newcomer Free Member

    19 2
    It isn’t, the offer letter is the overdraft agreement. It’s not signed by the company or the guarantor.
     
    Posted: Oct 16, 2019 By: BusyBeeBee Member since: Jun 30, 2018
    #10
  11. consultant

    consultant Your Business Community Staff Member

    5,574 774
    But did you take up the facility this letter offered?
     
    Posted: Oct 16, 2019 By: consultant Member since: Jan 21, 2008
    #11
  12. BusyBeeBee

    BusyBeeBee UKBF Newcomer Free Member

    19 2
    Personally no, the company and me are different entities. The company has been dissolved. It’s the personal guarantee that is being disputed.
     
    Posted: Oct 16, 2019 By: BusyBeeBee Member since: Jun 30, 2018
    #12
  13. Mr D

    Mr D UKBF Legend Free Member

    21,996 2,586
    From what I recall in the ones I've seen, a personal guarantee is spelled out. Often on its own sheet of paper.
     
    Posted: Oct 16, 2019 By: Mr D Member since: Feb 12, 2017
    #13
  14. consultant

    consultant Your Business Community Staff Member

    5,574 774
    Ok, then. If there is nothing mentioning a PG in the letter and you have not received anything about a PG, you may be in the clear, HOWEVER, I would seek legal advice.
     
    Posted: Oct 16, 2019 By: consultant Member since: Jan 21, 2008
    #14
  15. UK Contractor Accountant

    UK Contractor Accountant UKBF Big Shot Full Member - Verified Business

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  16. BusyBeeBee

    BusyBeeBee UKBF Newcomer Free Member

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    £25k but they are claiming £14k. It’s not really the amount, it’s whether it enforceable as the bank is unable to provide a signed PG.
     
    Posted: Oct 16, 2019 By: BusyBeeBee Member since: Jun 30, 2018
    #16
  17. UK Contractor Accountant

    UK Contractor Accountant UKBF Big Shot Full Member - Verified Business

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    would definitely needed a PG for a £25K facility.

    I would be surprised if Barclays cant produce anything to prove its case.
     
    Posted: Oct 16, 2019 By: UK Contractor Accountant Member since: Sep 18, 2013
    #17
  18. Mr D

    Mr D UKBF Legend Free Member

    21,996 2,586
    Unless they have lost it.
    Or never had it in the first place.

    More than once have heard of banks trying it on when they cannot produce the paperwork to back up their claim.
     
    Posted: Oct 16, 2019 By: Mr D Member since: Feb 12, 2017
    #18
  19. UK Contractor Accountant

    UK Contractor Accountant UKBF Big Shot Full Member - Verified Business

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    The Statute of Frauds 16772 stipulates that a guarantee must be in writing and signed by the guarantor or a person authorised by it in order to be effective.

    Historically, this was to protect against liability attaching to informal communications which may be given without sufficient consideration or expressed ambiguously. Although guarantees are often executed as deeds to overcome any argument about this, recent court decisions have recognised that a series of documents (including emails) is now capable of forming a guarantee.

    The name of the guarantor in an email, where there is both an intention that it is a signature and an intention to contract, will constitute a signature for this purpose.3
     
    Posted: Oct 16, 2019 By: UK Contractor Accountant Member since: Sep 18, 2013
    #19
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  20. BusyBeeBee

    BusyBeeBee UKBF Newcomer Free Member

    19 2
    So why are they not producing it? Surely they would if they had it and they want £14k. I’ve asked them several times over the last 12 months and each time they provide the same unsigned/undated document. There is no email chain or letter that I am aware of that can be used in court to prove the PG.
     
    Posted: Oct 16, 2019 By: BusyBeeBee Member since: Jun 30, 2018
    #20