Help required for a fully pleaded defence for a CCJ over credit card fraud

[anila]

Hi,
I wonder if anyone can help draft a fully pleaded defence against Cabot and MC solicitors. I have applied to have a CCJ to be set aside and now have to submit a fully pleaded defence within 21 days.

Basic details are that I received a CCJ in default as I didn't receive the court papers, Amount is over £11,000, and it is a card taken out in my name at my address by a tenant who ran the account for a good number of years and then simply left. I did apply for and received a copy of the agreement and other documents but it took them months to deliver. The signature is not mine nor did I apply for this card. So I am in a right pickle. Please help with this fully pleaded defence and if someone has an outline that would be great.

[Amethyst]

Firstly, well done on getting the Judgment set aside. Did you work out why you hadn't received the court papers ?

So this claim is in the fast track as over £10k ? or has it been allocated to small claims ?

Did you report the ID theft at all either at the time or after you found out about the judgment ?

Does anything show on yur credit file ? If so, have you filed any dispute there or obtained CIFAS protection ?

HAve you SAR'd the original creditor at all ? Transaction lists might help you evidence it wasn't you. You may need a handwriting expert for the signature issue on the agreement.

Was this tenant living with you at your home address, or were they renting a property you previously lived in ( and now returned to ? ) ?

And when was the account first opened, and when did it default ?

[anila]

Firstly, well done on getting the Judgment set aside. Did you work out why you hadn't received the court papers ?

So this claim is in the fast track as over £10k ? or has it been allocated to small claims ?

Did you report the ID theft at all either at the time or after you found out about the judgment ?

Does anything show on yur credit file ? If so, have you filed any dispute there or obtained CIFAS protection ?

HAve you SAR'd the original creditor at all ? Transaction lists might help you evidence it wasn't you. You may need a handwriting expert for the signature issue on the agreement.

Was this tenant living with you at your home address, or were they renting a property you previously lived in ( and now returned to ? ) ?

And when was the account first opened, and when did it default ?

Hi, and Thanks for responding. Will try to answer as much as I can.

Apparently I was sent the papers in Late Feb about a hearing at Northampton CC but I didn't receive the papers so couldn't do anything and then after the hearing I received the CCJ in default and was astounded. I can only assume the letter didn't arrive due to postal inefficiency as that is a problem in my area letters often go missing.

Prior to that I had written to Cabot and requested the documents under the CCA 74, but they just said they didn't receive. After the CCJ I wrote again to Cabot for the documents and applied to the court for the CCJ to be set aside. I was given a date but that was not suitable as I would have been away on holiday but eventually went to court where their solicitors MC submitted a letter saying they agree to the set aside for 6 months as long as I submit a fully pleaded defence within 21 days and then we can thrash it out etc.

As for the Q's.... I am not sure if this is fast track, I really have no idea.I didn't report the theft as I didn't know much and slowly slowly things emerged as to what actually may have occurred. The tenant stayed at my home address for about 15 years and was home most of the mornings whereas I am out by 7.30am and don't return till after 7pm.

The account was opened in Oct 2005 and defaulted in early 2015.

I don't know much about these things, credit file, cifas protection or SAR'd the original creditor. I shall be looking into all this soon, I just know this is not my account nor did I apply for this. I didn't even know of it's existence.

For now, the judge said that maybe I should try to settle out of court or if it goes to trial I may lose a lot more.

Hope that helps.....

[Amethyst]

their solicitors MC submitted a letter saying they agree to the set aside for 6 months as long as I submit a fully pleaded defence within 21 days and then we can thrash it out etc.

Have you actually got an order from the court saying the Judgment is set aside and defence needs filing and serving by a specific date ? ( and what date is that ) - the mention of 6 months concerns me it might just be enforcement is stayed for 6 months, so if you have a copy of the order from court could you type out the text pls.

If the Judgment is set aside you can send another CCA request now.

CCA Request to Cabot
CPR 31.14 Request to Mortimer Clarke ( agreement, default, assignment notice probably )
Subject Access Request Letter to the original creditor


So Cabot/MC had written to you before they issued the court claim - and you'd replied requesting documents ? Do you know if that was their formal 'letter of claim' with a reply form attached ? They never replied to your request and issued the court claim instead ( but you didn't receive it although it was issued to the correct current address?)

Did they send you a copy of the original claim form?
Did you keep any copy of the pre-action letters you sent /received etc ?

Did you state in your set aside application that this was an ID fraud issue?

[anila]

Have you actually got an order from the court saying the Judgment is set aside and defence needs filing and serving by a specific date ? ( and what date is that ) - the mention of 6 months concerns me it might just be enforcement is stayed for 6 months, so if you have a copy of the order from court could you type out the text pls.

If the Judgment is set aside you can send another CCA request now.

CCA Request to Cabot
CPR 31.14 Request to Mortimer Clarke ( agreement, default, assignment notice probably )
Subject Access Request Letter to the original creditor


So Cabot/MC had written to you before they issued the court claim - and you'd replied requesting documents ? Do you know if that was their formal 'letter of claim' with a reply form attached ? They never replied to your request and issued the court claim instead ( but you didn't receive it although it was issued to the correct current address?)

Did they send you a copy of the original claim form?
Did you keep any copy of the pre-action letters you sent /received etc ?

Did you state in your set aside application that this was an ID fraud issue?

Hi Amethyst,

Thanks so much for your assistance in all this. Let me try to respond to each one by one.

This is in fact a 6 months STAY as MC requested that "the judgement be set aside on the condition that the Defendant files and serves a fully pleaded defence within 21 days. The Claimant further respectfully asks that the matter be stayed for six months in order for the parties to reach a settlement."

They didn't turn up but submitted this in writing to save costs. The Judge said that if I set this aside they will only reapply for another CCJ so it is best to talk to them and deal with it, so to speak. This card was defaulted around March April 2015 so it is around 3.5 years, hence they can reapply for a CCJ.

The Court Order hasn't arrived yet as it takes a few days but I have under 3 weeks to submit this defence. Initially Cabot wrote saying they were transferring this to MC, they in turn wrote one letter and after that straight away applied to Court. I admit I didn't INITIALLY respond to them as I thought this is nothing to do with me.But I wrote to them in Jan 2018 asking for documents under the CCA. They later said they didn't receive this request and I had no proof either.

In Feb, MC threatened legal action if I didn't respond to their request and submit my income and expenditure details, but I awaited the documents I had requested under the CCA, which never came. Instead the CCJ in default came in March and that totally threw me.

After that I applied for a review and for this to be set aside on the basis that I didn't receive the original summons and didn't get a chance to argue this case. At the time I hadn't received the paperwork so I didn't know what was going on here. The paperwork arrived in June.

Did they send you a copy of the original claim form? I don't know what that is, Original in what way?

Did you state in your set aside application that this was an ID fraud issue? No, But after receiving the papers in June I wrote to Cabot and MC in July that this is not mine.

I believe that for now I have to submit this defence and then await their response, hopefully they will just back off themselves.

I hope I have responded as well as I can, I am not legally minded, all this is new and huge for me, so please bear with me....

[pt2537]

Ok well for my 2pence worth, you may want to get a handwriting expert to look at the signatures, and prepare a report. I dealt with a fraud case at my last firm where a party had signed away the rights to someone elses home, we won the case and proved that the signatures were fraudulent.

On the question of the CCA request, im not sure how much that will help, if we are saying its fraud then asking for something we didnt sign is not going to take us very far at all. Do you have any evidence that shows you never took out the card, for example card usage that occurred when you couldnt possibly have used the card? Ive used this as evidence before, on one case the client was in Birmingham when the card was being used in London, so we were able to show that it wasnt us.

Another point worth thinking about is asking for evidence of ID for money laundering etc, they must have done their due dilligence, so what checks did they do, what proof of ID did they obtain? if there are discrepancies then that may help in showing the fraud

[Amethyst]

You'd need a copy of the credit agreement to be able to get a handwriting expert to look at the signatures. However if this was opened online, with only an electronic tick box signature, that's not really going to help.

A SAR to the original creditor might get more information - particulars the personal details given in the application - and if there was a signature on the account at all - Subject Access Request Letter

So far your defence is going to be a denial but the court is going to want to see you have taken some action to prove this was not your debt. So mention the letters you have sent and the lack of response/documents you have received back.

Do you have a copy of the original claim ( ie. do you have the actual Particulars of Claim / Statement of Case from the claim ? ) As that is what your defence is in reply to you need to know what the actual claim is.

[pt2537]

You'd need a copy of the credit agreement to be able to get a handwriting expert to look at the signatures. However if this was opened online, with only an electronic tick box signature, that's not really going to help.

A SAR to the original creditor might get more information - particulars the personal details given in the application - and if there was a signature on the account at all - Subject Access Request Letter

So far your defence is going to be a denial but the court is going to want to see you have taken some action to prove this was not your debt. So mention the letters you have sent and the lack of response/documents you have received back.

Do you have a copy of the original claim ( ie. do you have the actual Particulars of Claim / Statement of Case from the claim ? ) As that is what your defence is in reply to you need to know what the actual claim is.

ahh sorry i thought i had saw that we had the signed doc signed by the tenant? If thats not the case t hen an expert wont help us just yet

[Amethyst]

Just as a starting point - with what little info there is


1 The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim or at all.

2 The Defendant denies entering into any credit agreement with the Claimant or the Original Credit ' BARCLAYCARD ' as set out in paragraph 1 of the Particulars of Claim. The Claimant is put to strict proof thereof.

3 The Defendant has never used any 'BARCLAYCARD' credit card to make any transactions. The Claimant is required to provide a full list of transactions in order the Defendant can plead further in this respect.

4 It is the Defendant's contention that on [date of agreement] the Defendant's indentity was stolen by some person whose identity is unknown to the Defendant, used to make an application for a credit agreement with 'BARCLAYCARD' and thereafter used by that person without the knowledge or consent of the Defendant.

5. The Defendant first became aware of the existence of the account, and thus became aware of the identity theft, on [ date] on receipt of a letter from the Claimant.

6. The Defendant notified to the Claimant that the account did not belong to them and requested further information. ( DETAILS OF LETTERS ETC )

7. The Claiamnt failed to provide any information.

8. The Defendant heard nothing further from the Claimant until receipt of xxxxxxxxxxxx

9. The Defendant has sent a formal Subject Access Request to 'BARCLAYCARD' in order to obtain details of the original application and transaction data with a view to making a complaint to the Claimant and to 'BARCLAYCARD'.

10: The Defendant has reported the identity theft to ACTION FRAUD / POLICE etc Crime reference: xxxxxxx

11: The Defendant has checked their credit file and xxxxxxxxxxxxxxxx. The Defendant has made a complaint to the credit reference agencies about the reports on the credit file due to identity theft and awaits a response.

12: The Claimant is put to strict proof that the Defendant applied for / opened any account with ' BARCLAYCARD ' as alleged.

13: The Defendant has further sent a formal request for a copy of the Credit Agreement pursuant to section 78 of the COnsumer Credit Act 1974 which has not been complied with by the Claimant and thus the debt is unenforceable.

14. In the alternative, by reason of sections 83 and 84 of the Consumer Credit Act 1974, the Defendant is not liable to the Claimant in respect of the transactions made on the account. The Claimant is put to strict proof thereof.

[Amethyst]

ahh sorry i thought i had saw that we had the signed doc signed by the tenant? If thats not the case then an expert wont help us just yet

You might be right actually ( which makes my above basic outline pointless lol )

I did apply for and received a copy of the agreement and other documents but it took them months to deliver. The signature is not mine nor did I apply for this card.

anila - can you clarify pls.

[pt2537]

You might be right actually ( which makes my above basic outline pointless lol )


anila - can you clarify pls.

Yep these cases can be tricky, but there is normally a piece of info you just need to unearth which will win you the day. Given the value is over £10k too, it seems they may be at risk on the question of costs if they lose (they being the creditor)

[anila]

Ok well for my 2pence worth, you may want to get a handwriting expert to look at the signatures, and prepare a report. I dealt with a fraud case at my last firm where a party had signed away the rights to someone elses home, we won the case and proved that the signatures were fraudulent.

On the question of the CCA request, im not sure how much that will help, if we are saying its fraud then asking for something we didnt sign is not going to take us very far at all. Do you have any evidence that shows you never took out the card, for example card usage that occurred when you couldnt possibly have used the card? Ive used this as evidence before, on one case the client was in Birmingham when the card was being used in London, so we were able to show that it wasnt us.

Another point worth thinking about is asking for evidence of ID for money laundering etc, they must have done their due dilligence, so what checks did they do, what proof of ID did they obtain? if there are discrepancies then that may help in showing the fraud

Thank you for the useful tips there, The handwriting expert and evidence of ID at the time the account was opened, are very good points.

[anila]

You'd need a copy of the credit agreement to be able to get a handwriting expert to look at the signatures. However if this was opened online, with only an electronic tick box signature, that's not really going to help.

A SAR to the original creditor might get more information - particulars the personal details given in the application - and if there was a signature on the account at all - Subject Access Request Letter

So far your defence is going to be a denial but the court is going to want to see you have taken some action to prove this was not your debt. So mention the letters you have sent and the lack of response/documents you have received back.

Do you have a copy of the original claim ( ie. do you have the actual Particulars of Claim / Statement of Case from the claim ? ) As that is what your defence is in reply to you need to know what the actual claim is.

Hi Amethyst, Thanks for the messages and all the details therein, it's all a great help. I do have a copy of the credit card agreement and it has what looks like my signature on it and a date, but not much else. I have had a few tenants here and one in particular stayed around 15 years. Astonishingly all that time he was here I was totally unaware of all that had gone on. This is mainly because I was not always here and when I was I would leave early and return late. The transactions on the account seem to be basically local shopping or online transactions, ebay etc.

[anila]

You might be right actually ( which makes my above basic outline pointless lol )


anila - can you clarify pls.

Sorry I am not quite sure what the Q is, but back in Jan I wrote to Cabots sending them the standard CCA request as I wanted to know what on earth was going on. That didn't materialise until June after the CCJ in March. It took them a long time to prepare all the documents even though I sent several requests in Jan, Mar and then May twice. But they just said they didn't receive the requests.

[MIKE770]

not sent Recorded delivery?