Court claim-need advice on how to defend

[icrina53]

Re: Court claim-need advice on how to defend

Hello,

Phone the court ( 03001231057 if they haven't change it) to double check if they acknoledged your extension. Sometimes they fail to do that, if that's the case you need to send your defence as normal .If they have acknoledged the extension wait to see if the solicitors send you the paperwork or not and do your defence around their reply.

[Andrew Travers]

Re: Court claim-need advice on how to defend


Thank you icrina53 it is kind of you to help me,

I did phone the court and checked but they have not acknowledged receipt of my letter with the copy of MC's letter stating 'they confirm their client is willing to agree to the extension of 28 days for you to file your defence' .
I smell a rat perhaps thinking that I may miss the defence deadline so the process would just go ahead.

I have until Monday to file my defence and would like some assistance doing this. I spent three or more hours yesterday reading through lots of other similar cases and don't feel any further forward as most if not all of the ones I looked at seem to end about the time a defence is submitted with no outcomes stated so not able to understand the complete process as I am naïve regarding legal process.
In short, apart from the letters I have received and attached to this thread, I have received nothing else.

Therefore; am I right in thinking that they have failed to comply with:
My CCA request (letter 11/01/16 - first class signed for). My cheque for £1 appears on my statement (19/01/16). If this should be supplied in 12 working days then today is the last day after the cheque was cashed. (nothing received today).
My CPR 31.15(C) request (letter 11/01/16 - first class signed for). Not sure of the time period to comply here?

Anyway, I would appreciate some help drafting the points of defence if possible?
Thanks,
Andy

[icrina53]

Re: Court claim-need advice on how to defend

If the court has not acknowledged your extension you definitely have to do your defence by Monday. If they failed to respond to your CCA works in your favour as the debt in unenforceable without an agreement . CPR request should take 7 days but there is no penalty for not complying . With regards to your defence I think you should send a pm to one of the admins here, kati or nemesis as is not very straight forward and I do not want to give you the wrong info . I'm sure they will be happy to draw up a defence for you .
Good luck and let us know the outcome ��

[Andrew Travers]

Re: Court claim-need advice on how to defend

Thanks again,
What is the best way to pm them as I feel like It a bit presumptuous?
I guess I need a simple structure to suit this case and for that I could naively draft some points to see what's wrong or missing?

[icrina53]

Re: Court claim-need advice on how to defend

Just go to nemesis profile page and it should be an option for private message. I would love to help but my knowledge is very limited , I only know the basics .

[charitynjw]

Re: Court claim-need advice on how to defend

Thank you icrina53 it is kind of you to help me,

I did phone the court and checked but they have not acknowledged receipt of my letter with the copy of MC's letter stating 'they confirm their client is willing to agree to the extension of 28 days for you to file your defence' .
I smell a rat perhaps thinking that I may miss the defence deadline so the process would just go ahead.

I have until Monday to file my defence and would like some assistance doing this. I spent three or more hours yesterday reading through lots of other similar cases and don't feel any further forward as most if not all of the ones I looked at seem to end about the time a defence is submitted with no outcomes stated so not able to understand the complete process as I am naïve regarding legal process.
In short, apart from the letters I have received and attached to this thread, I have received nothing else.

Therefore; am I right in thinking that they have failed to comply with:
My CCA request (letter 11/01/16 - first class signed for). My cheque for £1 appears on my statement (19/01/16). If this should be supplied in 12 working days then today is the last day after the cheque was cashed. (nothing received today).
My CPR 31.15(C) request (letter 11/01/16 - first class signed for). Not sure of the time period to comply here?

Anyway, I would appreciate some help drafting the points of defence if possible?
Thanks,
Andy

One example - just amend as required (each case is different in details)

In the
COUNTY COURT BUSINESS CENTRE

Court ref no xxxxxxxxx

Claimant
xxxxxxxxx (claimant's name)

-v-

Defendant
xxxxxxxxx(Defendant's name)



DEFENSE

1. The Defendant received the claim XXXXXXX from the Northampton County Court on xx/xx/xxxx.

2. This claim appears to be for a Credit Card agreement regulated under the Consumer Credit Act 1974.

3. The Defendant denies that he/she is indebted to the Claimant in the sum of £XXXXX or for any other sum.

4. It is (not) admitted that the Defendant has previously entered into an agreement with xxxx for provision of credit.

5. However, the Claimants statement of case fails to give adequate information to enable the Defendant to properly assess their position with regards the claim.

6. The Defendant does not admit that the alleged debt of £XXXXXX was assigned to xxxxxxx on the date pleaded or at all. If the alleged debt was so assigned, the Defendant was not given notice of assignment in accordance with section 136 of the Law of Property Act1925.

7. If, contrary to 6 above, the alleged debt was validly assigned to xxxxxxxxx, the Defendant does not admit that the alleged debt was assigned by xxxxxxx to the Claimant on the date pleaded or at all. If the alleged debt was so assigned, the Defendant was not given notice of assignment in accordance with section 136 of the Law of Property Act 1925.

8. It is denied that xxxxxx served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.

9. On the xx/xx/xxxx (and again on the xx/xx/xxxx) the Defendant sent a request for inspection of documents mentioned in the Claimants statement of case under Civil Procedure Rule 31.14 to xxxxxx Solicitors. The Defendant requested xxxxxxxx provide copies of the Contract/Agreement, Default Notice and Notice of Assignment.

10. xxxxxxxxx have refused/ been unable to send any of these documents to the Defendant.

11. * On the xx/xx/xxxx the Defendant sent a formal request for a copy of the original agreement to xxxxxx pursuant to section 78 of the Consumer Credit Act 1974 along with the statutory £1 fee. The Defendant failed to receive a reply or the requested agreement.

12. * On the xxxx/xxxx the Defendant sent a formal request for a copy of the original agreement to xxxxxx pursuant to section 78 of the Consumer Credit Act 1974 along with the statutory £1 fee. The Defendant, to date, has failed to receive the requested agreement.

13. The Claimant has failed to comply with s 78 (1) Consumer Credit Act 1974 and by virtue of s 78 (6) Consumer Credit Act 1974 cannot enforce the agreement.

14. The Defendant has requested to the Claimants solicitors (xxxxxx) if they may agree to extend the time period allowed for filing of their defense pending receipt of documents (as allowed under CPR 15.5), but they have declined.

15. Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a Defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.

16. At this stage without vital documentation the Defendant is unable to plead fully to the claim. The Defendant requests the court orders the Claimants to provide the necessary documentation in order to fully plead their case else the Claim should stand struck out.

17. In the event that the relevant documents are received from the Claimants the Defendant will then be in a position to amend their defense and would ask that the Claimants bear the costs of the amendment.

Statement of Truth

The Defendant believes that the facts stated in this Particulars of Claim are true.

Signed …………………………………………

Dated ……………………………………………


*Ps - this defendant applied twice re CCA 78 requests, hence 11 & 12
Just tailor it to suit your facts.

I'll give nem a nudge for you
@nemesis45

[nemesis45]

Re: Court claim-need advice on how to defend

One example - just amend as required (each case is different in details)

In the
COUNTY COURT BUSINESS CENTRE

Court ref no xxxxxxxxx

Claimant
xxxxxxxxx (claimant's name)

-v-

Defendant
xxxxxxxxx(Defendant's name)



DEFENSE

1. The Defendant received the claim XXXXXXX from the Northampton County Court on xx/xx/xxxx.

2. This claim appears to be for a Credit Card agreement regulated under the Consumer Credit Act 1974.

3. The Defendant denies that*** he/she*** is indebted to the Claimant in the sum of £XXXXX or for any other sum. ****** Remove the inappropriate one****

4. It is ***(not) ***admitted that the Defendant has previously entered into an agreement with xxxx for provision of credit.*** Which one ***

5. However, the Claimants statement of case fails to give adequate information to enable the Defendant to properly assess their position with regards the claim.

6. The Defendant does not admit that the alleged debt of £XXXXXX was assigned to xxxxxxx on the date pleaded or at all. If the alleged debt was so assigned, the Defendant was not given notice of assignment in accordance with section 136 of the Law of Property Act1925.

7. If, contrary to 6 above, the alleged debt was validly assigned to xxxxxxxxx, the Defendant does not admit that the alleged debt was assigned by xxxxxxx to the Claimant on the date pleaded or at all. If the alleged debt was so assigned, the Defendant was not given notice of assignment in accordance with section 136 of the Law of Property Act 1925.

8. It is denied that xxxxxx served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.

9. On the xx/xx/xxxx (and again on the xx/xx/xxxx) the Defendant sent a request for inspection of documents mentioned in the Claimants statement of case under Civil Procedure Rule 31.14 to xxxxxx Solicitors. The Defendant requested xxxxxxxx provide copies of the Contract/Agreement, Default Notice and Notice of Assignment If this does not apply to you only state the data which refers to your request!

10. xxxxxxxxx has*** refused/ been unable*** to send any of these documents to the Defendant. Which is it unable or refused?

******11. * On the xx/xx/xxxx the Defendant sent a formal request for a copy of the original agreement to xxxxxx pursuant to section 78 of the Consumer Credit Act 1974 along with the statutory £1 fee. The Defendant failed to receive a reply or the requested agreement.*******

12. * On the xxxx/xxxx the Defendant sent a formal request for a copy of the original agreement to xxxxxx pursuant to section 78 of the Consumer Credit Act 1974 along with the statutory £1 fee. The Defendant, to date, has failed to receive the requested agreement. *** Remove either 11 or 12 ********

13. The Claimant has failed to comply with s 78 (1) Consumer Credit Act 1974 and by virtue of s 78 (6) Consumer Credit Act 1974 cannot enforce the agreement.

14. The Defendant has requested to the Claimants solicitors (xxxxxx) if they may agree to extend the time period allowed for filing of their defense pending receipt of documents (as allowed under CPR 15.5), but they have declined.

15. Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a Defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.

16. At this stage without vital documentation the Defendant is unable to plead fully to the claim. The Defendant requests the court orders the Claimants to provide the necessary documentation in order to fully plead their case else the Claim should stand struck out.

17. In the event that the relevant documents are received from the Claimants the Defendant will then be in a position to amend their defense and would ask that the Claimants bear the costs of the amendment.

Statement of Truth

The Defendant believes that the facts stated in this Particulars of Claim are true.

Signed …………………………………………

Dated ……………………………………………


*Ps - this defendant applied twice re CCA 78 requests, hence 11 & 12
Just tailor it to suit your facts.

I'll give nem a nudge for you
@nemesis45

As charity has said above the template is intended for you to edit and amend to suit Your case, I've marked points that
need to be revised.

nem

[Andrew Travers]

Re: Court claim-need advice on how to defend

Thank You Charity, Nem,
Was offline (mouse chewed BB cable), then power cuts (Imogen) and had a right panic to form and file a defence. With some help I managed to get it in before the deadline and is copied below for interest:


IN THE COUNTY COURT BUSINESS CENTRE
Claim No
B E T W E E N :
CABOT FINANCIAL (UK) LIMITED
Claimant
- and -
ANDREW TRAVERS
Defendant

__________________________
DEFENCE
_____________________________
1. The Defendant received the claim form from the Northampton County Court on 10th January 2016.

2. This claim appears to be in respect of a Credit Card agreement regulated under the Consumer Credit Act 1974.

3. The Defendant denies that he is indebted to the Claimant in the sum of £1,151.99 or for any other sum.

4. It is admitted that the Defendant entered into an agreement with Capital One for provision of credit (“the first account”); however, no admissions are made as to the agreement under which the claimant purports to have had assigned to it. The defendant has made requests for information which have been ignored by the claimant and until disclosure has been made cannot plead his defence properly.

5. It is believed that the principal sums claimed by the claimant relate to 2 online transactions with Ladbrokes PLC on 10th August 2010 in the sum of £297.39 and on 11th August 2010 in the sum of £569.30 (total £866.69). The defendant denies that there were his transactions and avers that the same were fraudulent, having been made by a person or persons unknown and that the defendant acted with reasonable care.

6. The defendant avers that Capital One were aware that the same were fraudulent since on 12th August 2010 the defendant received a letter from Capital One requesting him to call the Fraud Team as an “account safety measure”.
7. Further, on 13th August 2010 the defendant telephoned the Fraud Team and confirmed that the transactions were fraudulent; the defendant reported the fraudulent transactions to the Devon & Cornwall Police service on 8th September 2010 and was given Log Number 621.

8. In response thereto – and the defendant will aver that as a result of the same Capital One acknowledged that the transactions were fraudulent – Capital One cancelled the existing account (on which the fraudulent transactions which are the subject of this claim were made) and transferred the defendant to a new account (“the second account”).

9. The defendant will aver that in the premises, Capital One is estopped from denying that the transactions were fraudulent and both Allied International Credit UK Ltd (to which the defendant believes that the debt the subject of this claim was assigned by Capital One, no admissions being made as to the enforceability of the said debt and/or the validity of the alleged or any assignment) and the claimant are bound by that estoppel, on which the defendant has acted to his detriment as set out in paragraph 9 herein.

10. On or about 12th January 2011 the defendant paid Capital One the balance due on the second account (less the fraudulent transactions and interest thereon) and closed the second account.

11. Insofar as may be necessary, the defendant denies that the second account was the subject of the alleged or any valid assignment to Allied International Credit UK Ltd by Capital One and/or from Allied International Credit Uk Ltd to the defendant; alternatively, that the first account was cancelled by Capital One on the grounds of fraud and in the premises, could not have been the subject of the alleged or any valid assignment to the defendant.

12. If – contrary to his defence herein - the alleged debt was so assigned (whether by Capital One to Allied International Credit UK Ltd and/or by Allied International Credit UK Ltd to the claimant, the defendant was not given notice of any assignment or assignments in accordance with section 136 of the Law of Property Act 1925.

13. Without prejudice to the preceding defence, it is denied that Capital One and/or Allied International Credit UK Ltd and/or the claimant served any Default Notice on the defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.

14. On the 12th January 2016 the defendant sent a request for inspection of documents mentioned in the Claimants statement of case under Civil Procedure Rule 31.14 to the claimant’s solicitors. The Defendant requested copies of the Contract/Agreement, Default Notice and Notice of Assignment. The claimant and/or its solicitors have refused to send any of these documents to the Defendant.

15. Without prejudice to the preceding parts of this Defence, the Claimant has failed to comply with s 78 (1) Consumer Credit Act 1974 and by virtue of s 78 (6) Consumer Credit Act 1974 cannot enforce the agreement.


Statement of Truth
The Defendant believes that the facts stated in this Particulars of Claim are true.

Signed …………………………………………

Dated ……………………………………………

[Amethyst]

Re: Court claim-need advice on how to defend

That looks good - have you heard anything back as yet ?

[Andrew Travers]

Re: Court claim-need advice on how to defend

Hi Amethyst,

Thanks for your post.

In fact, I received a letter from MC Solicitors over the weekend which informed me that Capital 0ne has DISCONTINUED THE CLAIM - RESULT!

I would really like to thank all those who have helped me with this defence and especially; Nemesis45, charitynjw, ictrina53 and yourself for taking an interest and providing such valuable assistance.
I have been telling everyone about the site and will continue to do so as well as continue to visit and use it again TOP NOTCH!

I was really worried about this, not about the value necessarily but the fact that I was a victim of internet fraud as I have never been in trouble with the law for any reason whatsoever. The fact that CAPITAL 0NE refused to adequately investigate the issue and then pursued me for the repayment was pretty upsetting and even though I am a professional myself, was still daunting to take them to task over this issue. I would have thought there are many others out there will similar stories which is very troubling indeed. These chancers must be making some peoples live an absolute misery and for that they must be stopped.

If there is anything that I can help to do for this site in return I will; but I am limited to being an experienced chartered architect so perhaps there are people who need advice regarding some related issue or other, please drop me a mail and I can see what I can do but otherwise.

Thanks again for being here Legal Beagles.

Andy Travers

[Amethyst]

Re: Court claim-need advice on how to defend

Ahh bloody marvellous news. WELL DONE !!!

And thank you... you'd be surprised actually on the amount of building type claims that crop up on here, and of course, your experiences can really really be helpful input to others cases in debt court claims ( you'll have noticed it gets a little bit busy on here) so always feel free to pop in and post, even just a reassurance or a hello from time to time, really helps people.

[Andrew Travers]

Re: Court claim-need advice on how to defend

Thanks,

Yes; I will do that and also have a look around to see who may need some help.

If anything that you see that could do with some advice then please don't hesitate pinging me a mail to notify about them? It is such a brilliant concept/site.

Best regards,
Andy

[icrina53]

Re: Court claim-need advice on how to defend

Well done Mr.Travers ! Two good news in one day 😀not used to that !