Amigo Guarantor

[Chris87]

I actually think I know how this is going to play out but I thought I'd atleast ask for the sake of my mum.

My brother had (has) a gambling problem and before my mum was aware he managed to sell her a sob story about being behind on his rent, car payments etc etc and being at risk of losing everything including his fiance. He'd tried to get a loan but been denied and begged my mum to go guarantor on an Amigo loan.

My mum is an absolute pushover and my brother had always previously been the good one with money in the family so she agree'd to it but she has no access to the internet (and is completely tech-illiterate) and didn't sign a contract but did promptly hand over the money to my brother when it was put into her account.

Now, it's come out that he has a gambling problem and has defaulted since the first month leaving my mum to pay it off.

Sob story aside and knowing that she's probably ultimately responsible for the money I wondered if anyone could clarify a few things for me.

1. Should she have been given a contract to sign, either a hard copy or digitally?
2. She has terrible credit, is currently off work due to ill health receiving PiP (the repayments take all of it) but does own her own flat, should she have even been given the loan in those circumstances?
3. Does she have the right to change the payment day? Amigo won't allow her access to deal with them outside of making payments and they only allow her to make them when my brother has defaulted so it's always with a ridiculous charge.
4. Can she take on the debt proper so she can gain control of the repayments? I was thinking about getting her a secured loan at a reduced APR over a longer period to pay Amigo and get her reduced repayments with a different company.
5. I was going to call Amigo tomorrow on her behalf because they just seem to fob her off on the phone but is there even any chance they'l talk to me about it?

I've booked her an appointment with CAB for Tuesday but the woman on the phone said there wasn't much she thought they could do.

Thanks for any advice!

[ostell]

I would say that without a valid agreement with her name on it then they cannot pursue this debt. I would ask them for a copy of the agreement. Suspect you may find a forged signature.

[Chris87]

I would say that without a valid agreement with her name on it then they cannot pursue this debt. I would ask them for a copy of the agreement. Suspect you may find a forged signature.

I suspected as much, I really wouldn't put it past my brother resorting to that in his current state. As I previously said she isn't tech savvy and has no internet access and hasn't actually signed anything herself but when I checked with her, she was walked through the consequences of my brothers failure to pay during a phonecall so I thought it was a bit of a grey area.

[des8]

Guarantees are subject to the technical requirements of the Statute of Frauds 1677
c. 3 (Regnal. 29_Cha_2)Section IV.

• Noe Action shall be brought . . . F1 whereby to charge the Defendant upon any speciall promise to answere for the debt default or miscarriages of another person . . . F2 unlesse the Agreement upon which such Action shall be brought or some Memorandum or Note thereof shall be in Writeing and signed by the partie to be charged therewith or some other person thereunto by him lawfully authorized.
• So it it ain't signed they don't apparently have any chance of enforcing through the courts

[Diana M]

but did promptly hand over the money to my brother when it was put into her account

Amiga loans say that they pay the money/loan into the guarantor’s bank account to avoid any fraudulent applications by a third party. The money lent is not paid direct to the borrower.

They say this gives the guarantor the opportunity to question/reconsider their commitment before handing over the money to the family member.

I’ve not seen the loan Ts & Cs to know whether the guarantor has the opportunity to change their mind and return the funds to Amigo at that stage.

They say that the loan/guarantor lending decision is based on assets held/owned by the guarantor (you must be a homeowner) not based on any income criteria.

They say the guarantor needs to sign (digitally is acceptable) a contract/agreement.

Whether what they say is good enough is a different issue.

I suggest your Mum sends a Subject Access Request to Amigo to establish the facts.

Amigo is regulated by the FCA so she may be able to make a formal complaint to Amigo which could be escalated to the Financial Ombudsman.

How much was the loan for, how long was the term, when was it taken out, and are there (or have there been) any arrears on the account? If so (arrears) has the loan been defaulted?

Di

[Chris87]

Thanks for the replies.

I know she's not going to get out of paying for it, I'm just trying to establish the best course of action for her; I'd be very surprised if Amigo really gave a crap about who signed the paper work because she handed over the money.

I’ve not seen the loan Ts & Cs to know whether the guarantor has the opportunity to change their mind and return the funds to Amigo at that stage.

I'm trying to chase my brother for a copy of the T's & C's / Contract as they aren't forthcoming with the exact information when she asks.

I suggest your Mum sends a Subject Access Request to Amigo to establish the facts.

Amigo is regulated by the FCA so she may be able to make a formal complaint to Amigo which could be escalated to the Financial Ombudsman.

How much was the loan for, how long was the term, when was it taken out, and are there (or have there been) any arrears on the account? If so (arrears) has the loan been defaulted?
Di

Does the request have to be in writing? Would I be able to request it on her behalf over the phone if she were there to approve it?

The loan amount is £8000 over 60 months (My mum really isn't good with money and hadn't even mentioned it until recently).

My brother has missed every payment so far and it's been left to my mum to pay the £316 a month while incurring charges of £280 for late payment by the time they give her the opportunity to pay it (no payments have been missed by her so it's not currently in default). She's able to pay it right now but it's chipping away at her savings to do so.

That's why i asked if it'd be better for her to accept the situation, take on the debt proper and get a secured loan at a better rate with lower repayments that she can pay on time.

Thanks again for the info so far!

[des8]

As Di says whether or not a digital signature is sufficient is an open question.
In Golden Ocean Group v. Salgaocar Mining Industries Pvt Ltd and Anr, [2012] EWCA Civ 265. 2. it was held that a contract of guarantee evidenced by a string of e-mails could be enforced as being “in writing” for the purposes of the Statute of Frauds,
However it was found in Mehta v J Pereira Fernandes SA [2006], that the automatic insertion of an email address by an internet service provider was not sufficient to meet the Statue of Frauds requirements.

[des8]

Your mother's moral position to stand by the loan is to be applauded.
AMIGO however are money lenders and have no morals.
IMO it is completely immoral not to allow the guarantor to pay the instalments until enormous charges have been added.
That also smacks of being an unfair term in the contract (if it is in there!).

It is to prevent situations like this arising that the 1667 Act is still good law.
Whilst it is accepted that guarantees can be in email form, it seems from your posts that AMIGO have not acted in accordance with the law.
It is not sufficient for her to be "walked through the consequences ..... during a phonecall ".
Salesman are glib talkers and can easily distract from onerous conditions... hence it must be in writing
If your mother is computer illiterate it seems that AMIGO have not acted lawfully (unless someone impersonated her in which case what steps did AMIGO take to verify they were in correspondence with the correct person?)

Please follow Diana M 's advice re the SRA.
From your posts it seems questionable that your mother is liable, morally or legally, for this debt.

If your brother pretended to be your mother it may be he was guilty of fraud.
If the matter should go further it may make him realise what he is doing and the effect it is having on his family.
Then he might take steps to obtain help for his addiction

SAR to be in writing: Template here: http://legalbeagles.info/forums/foru...quest-template
There is a statutory maximum fee of £10 which should be enclosed

[jaguarsuk]

Does the request have to be in writing? Would I be able to request it on her behalf over the phone if she were there to approve it?

Yes, there's a guide here Subject Access Request Letter

The letter will have to come from your mother, so headed with her name and address plus signed by her. In it add a paragraph saying something along the lines of her wishing them to comply with the request by sending all documents to you at your address. Also, if she's agreeable could be worth inserting her authority, which they should note on their systems for you to deal with any and all matters on her behalf as then you can deal with this then.

In regards refinancing the loan, it is a possibility and you could ask them for an early settlement figure. However, it's worth getting the terms and knowing the full extent of her liability before making those sort of arrangements.

You say she is incurring late payment fees, so it's probably a good idea to have a look at her credit report on Noodle do you have a laptop or could you help her sign up via your phone? It's worth seeing if this loan is there and whether it's marked with late payments as this may impact her ability to obtain a further loan, although securing it on her home would negate some credit worries a creditor might have.

[ostell]

Can I suggest that there is a small change/addition to the regular signature when she sends the SAR? Add an extra dot or small line. If the agreement comes back with the same dot or line then you know the signature has been copied across. Suspicious, moi? Dead right.