Counter-claiming a false claim made by Ex-Landlord!

[Decjustdec]

Hi all!

 

I'm new to the forums and quite urgently need some advice as to what I should do next! This is a bit of an essay but... it's worth a read and I will really appreciate any help you could offer!

 

Basically, an old landlord of mine has 5 years after my tenancy ended put in a false claim through money claim online, saying that I didn't pay about 6 months rent...out of a 9 month tenancy and is trying to screw me in excess of 4500 quid. I missed the claim form, which they sent to my old address, and the first I heard about it was from their solicitors 28 days after judgement had been made against me by default.

 

The fact of the matter is this: my rental account with them is actually in credit of about 3 quid!

 

I paid on time every time by standing order with my bank up until the last month where I ran into financial difficulties and didn't pay it. However, they sent me a false statement of balance by e-mail requesting I actually hadn't paid about 6 months rent, which is just ridiculous!

 

If I calculate their statement of balance with the correct figures, one months rent, plus 50 quid late payment fee, 10 for a reminder email, and 72 quid which they took out of my deposit for paying for cleaners and rubbish removal, the account is even. In fact they actually owe me 3 quid of my deposit still.

 

At the time of the tenancy ending they sent me loads and loads of e-mails asking me for this money and although I did say I had been to the bank and checked their statement of balance they said they would not deal with my usual bank statements they wanted just the transactions between my account and theirs on headed paper from my bank... which when I asked the bank was told cannot be produced. However I made it clear to them that this statement of balance was incorrect and that they should check their account and amend it.

 

Communication then went cold with them and I didn't hear from until this letter from their solicitor about 5 years later.

 

 

This is what I have done so far:

 

I have rang the court to confirm that judgement has been passed by default and it has.

 

I have been to the bank and requested them to send me the relevant bank statements.

 

I have contacted them by e-mail and sent them scanned in bank statements with the standing order underlined every month. They have not responded.

 

I have then sent them a letter 3 days later, giving them 10 days to check their accounts and amend the statement of balance to reflect the true figures otherwise I will be submitting my evidence to the court and applying to have the judgement set aside and possibly make a counter claim against them. I tried to include some liability stating that if it is found by a court that their claim is false, I reserve the right to seek from them damages to the sum of 4500 quid (matching their claim) and requested that if they do discover they have made a mistake in putting together the statement of balance they should withdraw their claim against me and notify their intention of this within 10 days.

 

This letter will arrive on Monday and I think 10 days is a reasonably time-frame given the situation and considering the clock is ticking... default judgement was made about 40 days ago now... and soon they could go to enforcement it if they wish.

 

I have also done a subject access request on them (they are a limited company), giving them 40 days to give me all data they hold on me in an attempt to find out a bit more about what is going, what documents they still have from me with regard to this rental account and try and find some evidence that suggests that they are aware of these transactions going into their account and are still making a false claim anyway.

 

I am not sure about the next step to take. I am thinking of telephoning them again on Monday or just waiting to see if they reply in the 10 days I have given them. Ideally I don't want to have to deal with this in court, but if they are not willing to withdraw or just ignore me, then I will have to.

 

My question is, what options do I have with this case...

 

Should I fill in the N244 applying to have the judgement set aside, using the fact I never received the claim form and explaining that I have evidence that suggests their statement of balance is incorrect?

 

Furthermore, do you think I have grounds for a counter claim here? I have e-mail communication from 2009 where I said this statement of balance is incorrect etc. but they have gone ahead anyway, saying it is my responsibility to prove it.

 

Or should I just apply to have the judgement set aside and apply to be awarded costs??

 

The big question is, do you think they have a duty to properly check their accounts and credit transactions from their tenants before pursuing you? and if so, is there any legislation stating this that I can rely upon when submitting my defence and counter-claim?

 

Thanks and kind regards guys!

 

Dec

[silverfox1961]

Hi and welcome to CAG. Sorry you were missed

 

I'm no legal expert but I would immediately get the set-aside application in. the grounds being that you never received the original court documents and you gave a viable defence to the claim.

 

Once you have the set-aside it will be as if no court case has taken place and the case starts from the beginning where you will be able to show you paid and also to argue over the £50 late payment fee.

[renegadeimp]

Get the set aside going asap.

 

Also:

 

Furthermore, do you think I have grounds for a counter claim here? I have e-mail communication from 2009 where I said this statement of balance is incorrect etc. but they have gone ahead anyway, saying it is my responsibility to prove it.

 

it is up to THEM to prove you owe money,. Not for you to prove you dont.

[batty69]

forget the letter you sent above, they wont do anything except go for enforcement of the judgement against you until put in the set-aside in.

 

Re. Couterclaim yes you can, if you can show their claim was "negligent" and this negligence resulted in a CCJ against you, you can go for damages on a counterclaim.

 

However a counter claim is much further down the line and cant be done till you have the set aside granted.

 

Get the set aside in ASAP, as you are financially screwed for the next six years until you do.

[renegadeimp]

I would say the claim was vexatious.

[steampowered]

Yes, apply for a set aside immediately. Do not delay. Make sure you comply with Part 13 of the Civil Procedure Rules. In particular, note that you should be attaching a detailed witness statement to the N244 explaining the circumstances.

 

You could also apply for an order that the landlord's claim is struck out at the same time and on the same N244. Let us know if you need help with the wording of the court documents.

 

I am very dubious about your ability to make a counterclaim. I do not think you can sue the landlord in negligence, because the landlord does not owe you a duty of care which is a requirement for negligence. You could possibly sue the landlord if the claim was fraudulent but I think it would be very difficult to prove this. The more appropriate course of action would be to seek an order that the landlord pays costs, to include your court fees and costs at the litigant in person rate of £18 an hour for time spent on the litigation (please see the stick on this).

[Decjustdec]

Wow, thanks everyone for the replies. It is much appreciated!

 

I think everyone so far is unanimous that I should get the N244 in straight away without delay, and after some more research I have to say that my gut instinct is telling me the same. My aim is to have the form filled out roughly today, ready to get some advice on how to word it etc. And then have it finished and sent off by wednesday latest.

 

Ok so after reading your comments, here are a few questions in reply:

 

1.

you should be attaching a detailed witness statement to the N244 explaining the circumstances

I have studied the N244 form and on some advice websites it states that you should tick no to q 4 on the n244: 'have you attached a draft order?'. Is this question related to the witness statement? What is a witness statement? and how does it differ from a normal statement? Could I attach an affidavit stating the facts as I know them to be true and use this is as my witness statement? How do people normally attach a detailed witness statement?

 

 

2. The claim was made at the Northampton Bulk Centre, in question 5 on the n244, 'how do you want the app dealt with?' I'm guessing it should be dealt with at a hearing? However, will I need to attend this, if I want the application to be heard at a hearing as I am really far from Northampton is it possible to request that the hearing be at my local court?

 

3.

You could also apply for an order that the landlord's claim is struck out at the same time and on the same N244. Let us know if you need help with the wording of the court documents.

Hey steampowered, thanks for your detailed response. I think I will fill out the form as best as possible and try and get my head around it and then post any queries I have on here to hearyour suggestions if that is ok?

 

In summary, I think the following is what I will be including in my N244 application:

Apply to have the judgement set aside; because I did not receive the claim form, have evidence that suggests the amount the claimaint is claiming is ill-founded, and it is in the interest of justice that I have my defense heard.

• Apply for an application for a stay of execution - in other words apply to have any enforcement actions stopped and suspended while the judgement is set aside.
  

• Apply to have the claimant's claim be struck out - this is one application I don't really understand at the moment but will be researching next
  

• Apply to be awarded my costs incurred under the litigants in person act - again I'm not really sure how to word this.
  

 

4.

I need to obviously attach documents that will support my application, how do I attach them? Do I just put the original documents in with the form and reference to them in the N244?

Also, I am thinking of using a statutory declaration to support my application, i.e. that I never received the documents because they sent it to an old address.

 

5.

I am guessing that the main body of my N244 will be the witness statement that I will be attaching, can anybody recommend a good template to follow please?

 

Finally, are there any maxims and point of law that I can use to support my application? Ideally I want to make

 

Thanks again for your help everybody!!!!!

 

Dec

[Decjustdec]

Hi again everybody, one more has just popped to mind that urgently needs to be addressed...

 

I haven't actually seen the defendant's claim form and so don't know exactly what they have put in there. The first time I discovered this default J against me was in a letter from their solicitor, as explained before. I then rang up the solicitor and asked where this claim had come from and they then sent over by email a statement of balance.

 

Is it possible to request for a claim to be struck out, if I actually haven't seen the details of the claim?! I know it sounds silly because my gut tells me that you can't and a judge would laugh at that kind of request... however can I state that I have spoken to the claimant's solicitor and requested how they have come to this amount etc and here is the statement of balance they have sent me... and then state that this statement of balance is incorrect and provide my evidence?

 

Thanks again,

 

Dec

[citizenB]

You should be able to obtain a copy of the claim from the court. Telephone them.

[Decjustdec]

UPDATE

 

I have spoken to the people at my previous address and they are going to scan in the claim forms and email them to me about 5pm. I know I could just apply to have the J set-aside on the grounds I never received the claim form, however I feel it would be better to see the claim first in order that I can dispute the claim properly and provide evidence to request the claim be struck out.

 

In the meantime, I will be drafting the app and putting together all the documents I need. If all goes well it will be with the court by Wednesday!

 

Thanks

 

Dec

[Decjustdec]

You should be able to obtain a copy of the claim from the court. Telephone them.

 

Thanks citizenb, you are right. I have spoken to the court this morning and they can send me the claim form, however it will take up to 10 working days and I can't work on that time-frame right now.

[steampowered]

I have studied the N244 form and on some advice websites it states that you should tick no to q 4 on the n244: 'have you attached a draft order?'. Is this question related to the witness statement? What is a witness statement? and how does it differ from a normal statement? Could I attach an affidavit stating the facts as I know them to be true and use this is as my witness statement? How do people normally attach a detailed witness statement?

 

A draft order is different to a witness statement. An order is simply a short court document saying something along the lines of "It is ordered that the judgment dated X is set aside and that the Claimant has until X to file a Defence". I don't think you need to attach a draft order.

 

A witness statement is a short document prepared by you which tells the judge everything he needs to know. In relation to the set aside at a bare minimum you need to cover (1) when you received the claim form with a statement that you acted promptly, (2) why you did not receive the claim form before, (3) why you have strong grounds for defending the claim. The witness statement is your evidence in support of the application. In relation to the other things you might ask for, please review the requirements of the relevant section of the Civil Procedure Rules.

 

2. The claim was made at the Northampton Bulk Centre, in question 5 on the n244, 'how do you want the app dealt with?' I'm guessing it should be dealt with at a hearing? However, will I need to attend this, if I want the application to be heard at a hearing as I am really far from Northampton is it possible to request that the hearing be at my local court?

 

Yes, at a hearing. You will need to attend. The case should be transferred to your local county court as Northampton CCBC is just an issuing centre. Might be worth calling the court for their guidance on this and/or including a transfer request in your application notice.

 

3. Hey steampowered, thanks for your detailed response. I think I will fill out the form as best as possible and try and get my head around it and then post any queries I have on here to hearyour suggestions if that is ok?

Sure

 

 

 

In summary, I think the following is what I will be including in my N244 application:

• Apply to have the judgement set aside; because I did not receive the claim form, have evidence that suggests the amount the claimaint is claiming is ill-founded, and it is in the interest of justice that I have my defense heard.
  
• Apply for an application for a stay of execution - in other words apply to have any enforcement actions stopped and suspended while the judgement is set aside.
  
• Apply to have the claimant's claim be struck out - this is one application I don't really understand at the moment but will be researching next
  
• Apply to be awarded my costs incurred under the litigants in person act - again I'm not really sure how to word this.
  

May be worded as follows:

 

The Defendant intends to apply for an order that:

 

• the default judgment dated X be set aside pursuant to CPR 13.3 (1) because the Applicant has a real prospect of successfully defending the claim and it is in the interests of justice that the judgment is set aside;
  
• the Claimant's Particulars of Claim be struck out pursuant to CPR 3.4 (2) (a);
  
• the Defendant do have summary judgment against the Claimant pursuant to CPR Part 24 because the Particulars of Claim discloses no reasonable cause of action against the Defendant, the Claimant's Particulars of Claim has no real prospect of succeeding and there is no other reason for the case to be disposed of at trial; and
  
• the Claimant is ordered to pay costs pursuant to CPR 27.14 (g).
  

Needless to say you should really get a copy of the POC before making those statements.

4. I need to obviously attach documents that will support my application, how do I attach them? Do I just put the original documents in with the form and reference to them in the N244?

Also, I am thinking of using a statutory declaration to support my application, i.e. that I never received the documents because they sent it to an old address.

 

Put the documents behind your witness statement in a sensible order. Photocopy them three times and write page numbers on the bottom right. Your witness statement should refer to the specific page numbers which support your case. One copy for you, one for the court, one for the Claimant.

 

Statutory declaration is not needed. Your witness statement will be verified by a statement of truth, and in theory it is criminal contempt of court to sign a false statement of truth.

 

5. I am guessing that the main body of my N244 will be the witness statement that I will be attaching, can anybody recommend a good template to follow please?

 

You can use the wording above for the N244. The witness statement will need to be a description of everything that has happened in your own words, with specific reference to the documents which back that up.

 

Finally, are there any maxims and point of law that I can use to support my application? Ideally I want to make

 

Personally I think applications like this should be kept as simple as possible ... I have seen several disasters where litigants in person make things too complicated or try to be too clever.

 

The bit of law you should be citing is the relevant parts of Part 13 of the CPR (http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13).

[Decjustdec]

Here's an update everybody!

 

I have seen the claim form now and in the particulars of claim, the claimant has stated that full details have been disclosed to be in invoices between 24/11/08 - 13/07/09. So they are basing their claim upon the statement of balance that they sent to me, which is incorrect of course.

 

I have prepared the following documents to support my witness statement:

 

Bank statements which contradict the statement of balance.

Letter from claimant's solicitor, which is the first I heard of the default judgement.

Copy of the original signed standing order with my bank - shows the details of both bank accounts, mine and theirs.

 

I am pretty sure these above I should definitely be including.

 

I have also prepared the following documents but not sure if I should include them:

Amended statement of balance - I will be stating in the witness statement, I believe the SoB on page X of the attached document is a true reflection of my rental account held with the claimant.

E-mail dated from 2009 where I first made it clear that the rental arrears they are claiming must be a mistake on their part.

 

 

Do you think I should include these?

 

 

As for the witness statement, this is what I have so far:

 

The first time I discovered that a default judgement had been made against me, was when I received a letter on 18th July 2013, from the defendant's solicitor (page XX of enclosed documents).

 

The original claim form and response pack had been sent to an old address of mine.

 

On 18th July 2013 I contacted the defendant to request an explanation for the amount claimed against me. The claimant e-mailed me a statement of balance (page XX of enclosed documents) for a previous rental account I held with the claimant.

 

On 18th July 2013, I contacted my bank to request bank statements (page X to X of enclosed documents) covering the period detailed in the claimant's statement of balance.

 

On 22nd July 2013, I received said bank statements and after checking them against the claimant's statement of balance, I discovered that the statement of balance provided by the defendant was ill-founded.

 

On [iNSERT DATE] a payment to the sum of X was made from my account to the claimant's account, as evidenced on page XX of enclosed documents, contradicting what the claimant has entered into their statement of balance.

 

On [iNSERT DATE] a payment to the sum of X was made from my account to the claimant's account, as evidenced on page XX of enclosed documents, contradicting what the claimant has entered into their statement of balance.

 

Page XX of enclosed documents is what I believe to be a true account of the statement of balance between myself and the claimant, taking into account wrong entries made by the claimant in the previous statement of balance.

 

On 16/06/2009 I responded to an invoice by the claimant to dispute these alleged rental arrears by e-mail (see page X of enclosed documents)l, explaining that this must be a mistake on the part of the claimant.

 

This mistake was not investigated by the claimant and they have proceeded with legal action.

 

To date I have never received my rental deposit of X amount or an explanation as to why it is being taken.

 

 

Please let me know what you think everybody

 

Thanks again!!! Kindest regards,

 

Dec

[Decjustdec]

Bump!

Any opinions appreciated

[steampowered]

Yes I think you should include the documents mentioned in your post. But remember is that judges generally do not trawl through piles of documents. You need to specifically refer to the documents in your witness statement, so that the judge knows why each document is there.

 

You need to make sure you emphasise the very simple point that the amount has already been paid. While I have included wording which would allow you to apply for a strike-out, in all honesty I think you should get a set-aside but probably won't get a strike-out at this stage, because there is a possibility of the Claimant contesting whether you actually paid the amount.

 

If you never received the deposit ... then why aren't you suing to get it back plus interest? You may be better off just going for a set-aside, and then once you have a set-aside entering a counterclaim as part of your Defence. That will get everything together in one claim and perhaps a cleaner way of doing things than trying to get this struck out and then introducing a new claim.