Hi All (but mostly Andy!!)
I would really appreciate your advice on the following to be submitted as my defence:
Claimant xxxxxx v Defendant xxxxxxx County Court xxxxxxxxx Claim number xxxxxxxxxx
I, Pxxxxx, of Vxxxxxxxx, , will say as follows:
In response to the claimant’s witness statement, and subsequent decision of District Judge xxxxxxx to set aside the judgment at County Court at a hearing on 19th May 2015, I submit the following defence, and respectfully request the court to consider all points when making its decision:
BACKGROUND & OVERVIEW
4 – The claimant states that they bought ownership of a debt from Egg PLC relating to a credit card. The claimant has not provided an original Consumer Credit Agreement, in disregard of my request for this information under the Consumer Credit Act 1974, section 78.
5 – The claimant states that the alleged account defaulted on 1 July 2005. I put the claimant to strict proof of the alleged debt, default and any subsequent attempts to retrieve monies by Egg.
6 – The original alleged debt is stated as £3287.60, however, the claimant has filed a CCJ for £5165.02. I request the claimant provide proof of validity and justification as to how an alleged agreement which defaulted in July 2005, can then be entered for judgment over 9 years later with an additional £1877.42 added in costs by the claimant.
7 – The claimant reports that under Point 136 of the Property of Law Act 1925, the alleged debt was legally assigned to them. As per the claimant’s evidence, the first letter was sent by Egg to an address at 26 Dxxxxxx on 11th October 2006 with a second letter sent by Capquest to the 200 Cxxxxxxxx on 17th October 2006. I state that the alleged debt had not been legally and correctly assigned to the claimant as the claimant has not endeavoured to locate my current correct address at the time, as per Civil Procedure Rules 6.9 (3).
8 – The claimant alleges payments were made towards the alleged debt and that they provide proof via a computer typed statement. I put the claimant to strict proof (via account details, card number, direct debit mandate etc.), as to how these alleged payments were obtained in order to prove they were obtained lawfully. I am not aware of ever entering into an arrangement with the claimant, and if it is proven that payments were taken from me without my knowledge or authorisation, and if the alleged debt was proved to be not legally assigned to the claimant, this is liable to further investigation by the Financial Conduct Authority and a potential counter claim against the claimant.
9 – As stated in Paragraph 7, the claimant had not made sufficient attempt to ascertain my current address prior to starting proceedings. As per my N244 form presented to the court, I have been living at 50 Vxxxxxxxx address, and on the electoral register since February 2014. It is my claim that the claimant could have accessed this readily available information, prior to contacting the courts to start proceedings.
10 – The claimant offers letters as evidence of proof of contact. The first letter is dated nearly 4 months after I moved out of 120 Jxxxxxxxxx. If as the claimant suggests, these letters were sent without reply or return, then it is right to assume that the claimant has not followed Civil Procedure Rules 6.9 (3) (for service of documents), and that by serving papers at this address was an abuse of process, and a way to circumvent proper court procedure in obtaining judgment.
11 – As per the previous points, it is right and fair to state that the claimant had not taken reasonable steps to obtain my correct and current address in order to start proceedings.
12 – The claimant states that Judgment in Default was entered on 11 September 2014 due to lack of response. Due to the points stated above, I state that the claimant had not followed correct procedure in obtaining the judgment. I request that the claimant provide strict proof of their attempts to obtain my current and correct address.
13 – Claimant states that they proceeded with enforcement of an Attachment of Earnings Order, again, contravening CPR 6.9 (3) that reasonable steps should have been taken to ascertain my current address. I have had no contact regarding the Attachment of Earnings, nor has my employer. By checking this information with my employer (about them being contacted by the claimant), has led to questions about my current state of well-being (physical and psychological) by my employer and caused undue stress at my place of work.
16 – The claimant indicates they received no notice to indicate that the documents had been returned or not delivered to me. Again, as per Civil Procedure Rules 6.9 (3), a simple check of the electoral roll would have indicated the claimant was issuing letters to an incorrect address. If the claimant insists that 120 Jxxxxxx was my last known address, they should indicate how they obtained this address for issuing letters and Attachment of Earnings, as I had no contact with them whilst living there. I state that the claimant has tried to avoid proper court procedure and law in order to obtain a CCJ by deceit.
DELAY/ABUSE OF PROCESS
17 – As stated in my completion of form N244, I was made aware of the CCJ in October 2014, yet the claimant argues that 7 months later is too late to set aside a CCJ and an abuse of process. As per my N244 form sent to the court, I have asked for the claimant to provide proof of the alleged debt and their reasons for enforcing the CCJ. As stated, they had not responded to my request for information, and only provided this to the court when an application to set aside had been made. It is my counter claim that the claimant had withheld providing me with the requested information in order to delay the process in the hope that their claim be upheld.
18 – The claimant states it would prejudice the claimant for the judgment to be set aside, however, by not complying with Civil Procedure Rules, nor my request for information, there is no substantiating this claim of prejudice. In fact, by not supplying me with the information I requested, has caused severe prejudice against my claim to set aside.
19 – The claimant suggests that by waiting for the claimant to enforce a judgment before having it set aside is an abuse of the court’s procedure by myself. However, I am able to provide a credit report that shows that there was no debt/credit agreement with the claimant, nor did they follow suitable procedure in getting the judgment enforced. It is my claim that it was implausible for me to defend against an alleged debt that I knew nothing of, especially if the claimant was unwilling/unable to provide evidence.
22 – The claimant states that assignment of the alleged debt to the claimant enforces that said debt is now owed to them and repayment has been requested. As previously stated, the alleged debt has not been lawfully assigned to the claimant and the claimant has not pursued the alleged debt through the correct methods, pursuant to Civil Procedure Rule 6.9 (3).
23 – The judgment must be set aside for the following reasons:
a) The proceedings and judgment were not served at the correct address. The claimant had no prior contact with me at the address where judgment was served so Civil Procedure Rules were not followed.
b) The claimant has been unwilling and/or unable to provide an original credit agreement and information pertaining to the original alleged debt.
c) The claimant will suggest that they received payment toward the alleged debt, however, no conclusive proof of this claim of payment has been
provided other than a simple, computer generated statement. I put the claimant to strict proof of any alleged payments, including direct debit mandate, account number, sort-code, debit/credit card details etc. It is my statement that I have not knowingly entered into any agreement with the claimant in respect of the alleged debt. According to the claimant, the alleged debt had defaulted in July 2005. Under the Limitation Act 1980, a simple contract may not be pursued after a period of 6 years making any claim statute barred.
d) The claimant has abused process by not providing me with requested information in due course which would have strengthened my claim to have the judgment set aside. The claimant has not registered any debt/default against my credit report.
24 – I respectfully request that the court set aside the judgment as proof of the alleged debt has not been provided, and correct procedures (as per Civil Procedure Rules) have not been followed. Under the Limitation Act 1980, a simple contract may not be pursued after a period of 6 years making any claim statute barred, I request the court enforce the statute barred rule in this case.