How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask F E Smith Your Own Question
F E Smith
F E Smith, Solicitor
Category: Bankruptcy Law
Satisfied Customers: 9324
Experience:  30 years in general practice.
18203470
Type Your Bankruptcy Law Question Here...
F E Smith is online now

I need help with compiling a Defence to a money claim. I

Customer Question

I need help with compiling a Defence to a money claim.I have been afforded the opportunity to defend this claim by way of having the original judgment set aside on the grounds that I had "reasonable prospects of success".The case is brought by a third party debt collection companychasing me for a spurious credit card debt that was apparently taken out in 2005.In the hearing to set aside the original judgement I was provided with a copy of the original credit agreement. The name and address on it are unclear but the signature passes as mine (although it is not).I have never lived anywhere near the address (which is unclear) on the credit agreement - never even in that area of the country. I have no recollection of ever taking out an American Express credit card at any address, ever!I was advised at the previous hearing that I had a defence with a strong chance of success based on what constituted a "properly signed" agreement. This was suggested by the presiding district judge and also by the prosecuting solicitor off the record after the hearing.As part of the evidence bundle provided at the previous hearing, the debt collection company provided a copy of my credit history - more specifically my electoral roll history. At no point during the apparent taking out of the credit agreement or it's apparent default was I living anywhere near the (unclear) address given on the credit agreement.The debt collection company have failed to provide me with a copy of the default notice and notice of transfer that I have requested - further raising my suspicion that this is entirely spurious.Essentially I have to prove a negative that I wasn't ever at the address they claim!My question is what is the best way to phrase my defence and is there any relevant case law to refer to in these circumstances? Any advice today would be appreciated as I have to file the defence tomorrow.ThanksChris
Submitted: 1 year ago.
Category: Bankruptcy Law
Customer: replied 1 year ago.
Bump up - can anybody help?
Expert:  F E Smith replied 1 year ago.

You have to prove on the balance of probabilities that you weren’t at the address.

Hence, provide whatever evidence you have that you were living elsewhere at the time that the agreement was allegedly signed and refer to that in your defence.

If you give a list of addresses where you have lived in the dates (the and the year is close enough) where you have lived since perhaps 2 years before the agreement was allegedly taken out, and you have the electoral roll printout, that should be sufficient.

It should be sufficient because if they don’t have an address where you ever live, how could they have sent you the agreement?

Under section 87 of the Consumer Credit Act 1974 section (1) provides for it to be necessary before the creditor can (b) demand earlier payment of any sum to provide a Default Notice in the stat to format required under section 88. The Claimant has failed to do so and is therefore not entitled to pursue the debt.

So, you actually have 2 defences.

Customer: replied 1 year ago.
HiThanks for your reply which is very much appreciated.In terms of the S.87 defence is it incumbent on the original lender (Lloyds American Express) in this instance or the Claimant (a third party debt-purchasing company) to provide the Default Notice?Does that fact that I have not seen the Notice Of Transfer have any bearing on the Defence - I am wondering about the possibility of disputing the actual validity of the Claimant to bring a case in the first place.I want to build up as many lines of defence as possible as I know I am going to be up against a solicitor at the hearing.Many thanks and best regardsChris
Expert:  F E Smith replied 1 year ago.

It is the creditor which has to provide the notice. Hence, it would either have to be Lloyds or whoever the debt has been assigned to.

I apologise, you are right, you have a third line of defence which is that they have not produced any assignment of the debt so there is actually no proof that you are indebted to the claimant at all. I didn’t cover that because you had already covered that quite succinctly.

Can I clarify anything for you?

Please don’t forget to rate the service positive. It’s an important part of the process by which experts get paid.

We can still exchange emails if you wish.

Best wishes.

FES.

Customer: replied 1 year ago.
HiThanks once again for getting back to me. I will certainly rate you 5* but my experience on here is that once I do I won't be able to continue speaking with you without posting a new question.Would you agree that I word the defence such that primarily there is no right for the claimant to bring the case as there is no Notice of Transfer and then use the other two defences in a 'not withstanding the primary defence'?The Claimant actually provided electoral roll information as part of their bundle to the N244 Set Aside Application Hearing - should I rely on their own evidence as my address history proof or seek to extract my own copies of historical electoral roll information? My primary concern is that I cannot prove a negative - i.e. I cannot definitely prove that I wasn't at the address but rather only suggest through continual electoral roll history that it wasn't at the address. This is evidenced by the Claimant's own bundle quite ironically!ThanksChris
Expert:  F E Smith replied 1 year ago.

If you look at the other threads I have dealt with, you will see that some of them carry on exchanging for some time.

I don’t think that any of your defences is more important to them another.

These would normally be worded

Details of defence

or , in the alternative,

Details of defence

, in the alternative,

Details of defence.

Which are your three defences.

I would have the no cause of action because the claimant has no right because they have evidence to the court or you that have any interest in debt

then you are not the correct defendant anyway because you have never lived even remotely close to this address

finally, the default notice

you can rely on their electoral roll information if it’s accurate. There’s no reason why they should make it up or doctor it.

You are correct that it’s almost impossible to that you did not live somewhere but you can prove that you live somewhere else that time and that would serve the balance of probabilities to prove that you did not live at the address they are claiming.

It may be that the electoral roll information support your version of events rather than theirs and they may have shot themselves in the foot.

F E Smith and other Bankruptcy Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you very much for your detailed advice which is much appreciated.I will compose the 3-pronged defence as suggested and am now hopefully that one or more of the defences should be sufficient to make this spurious claim go away.Many thanks for your help and I will rate you 5* now.Very best regardsChris
Customer: replied 1 year ago.
Oh sorry - just one other quick question - do I need to send 3 copies of the defence to the Court as I did with the initial N1 claim?Thanks, Chris.
Expert:  F E Smith replied 1 year ago.

There is no absolute need but it does speed things up because it saves the court copying. Hence, I would always do.

Send a copy also to the Claimant and in the covering letter to the court, tell them that you have also served a copy on the Claimant.

Customer: replied 1 year ago.
Hi - I have another matter that I would like advice on if possible please?
Expert:  F E Smith replied 1 year ago.

If you put another question up, put my name at the top of the thread, “For FES” and I will deal with it for you. Best wishes.

Customer: replied 1 year ago.
Thanks - I have just asked a new question with For FES Only at the top.Best regards,Chris.
Expert:  F E Smith replied 1 year ago.

I will look now.

Expert:  F E Smith replied 1 year ago.

I cannot see one. What is it about?

Customer: replied 1 year ago.
Hi - it seems like another solicitor has responded to the question but this is in fact someone who I have had previous dealing with which proved to be legally incorrect so I am not interested in talking to her. She also blatantly ignored the "For FES Only" at the top of the question further adding her unprofessionalism. I will take this matter up with Just Answer tomorrow and ensure that they credit you with the answer and not her. In the meantime the circumstances and questions are copied below for you, and I have also taken the liberty of attaching the N244 in question as I believe you may need sight of this to advise. Many thanks, Chris."For FES Only:HiI am defending another spurious money claim that I don't believe has anything to do with me.The Claimant was ordered by a Deputy District Judge to "file and serve a reply to Defence by 4.00pm on 7 July 2016".The Claimant has not done so.Yesterday I was servedwith a N244 Application by the Claimant asked that they be "granted relief from sanction under CPR 3.9 for its failure to file and serve a reply to Defence by 4.00pm on 7 July 2016". They have requested that the matter be dealt WITHOUT a hearing and have included a whole load of legal technicalities and case law references in their evidence. I can send these across to you if you would like to read.This N244 was dated 8 July 2016 - AFTER the deadline to reply to my Defence.My questions are as follow:1. Do I have any right to defend this application, and if so, how do I go about it?2. Is it reasonable that they ask for an extension after the deadline to file has passed?3. Do I have any grounds to request the matter be struck out on the basis that they did not comply with the original order?Your help once again would be greatly appreciated.Thanks and best regardsChris"
Expert:  F E Smith replied 1 year ago.

Thank you. On the other post, can I trouble you to ask the expert to opt out please and then I can pick up that thread on which you pay the fee?

It will then come back onto the board and I can pick it up.

Meanwhile, I will answer you on here.

The relief from sanctions application is basically an apology and asking for their claim not to be struck out for late service of documents.

You can defend the application for relief and ask for the claim to be struck out but in all honesty, it’s probably going to be a waste of time. Judges routinely allow documents to be served late which I must admit I find rather frustrating.

What they should have done of course is ask for an extension because then you also would know where you were working. The annoying thing about the application for relief is that it means that solicitors are routinely late. If more cases were struck out for missing deadlines, they wouldn’t miss the deadlines!

What I would suggest you did however because this is clearly take the considerable amount of time for the claimant’s solicitors to put together and if in the event your defence is not successful for any reason, you don’t want to pay the solicitors costs for putting this together which is going to be several hundred pounds. Hence, agree that you will not defend it on the basis that they agree not to ask for costs in respect of the application if the matter ultimately proceeds to trial.

If it does go to trial, and you are successful, you would also want your costs for considering this because this is through no fault of your own .

Incidentally, the application, on page 2 is what is colloquially known as “snowballing”. This is where they had everything out to hide relevant facts. At the end of clause 2 on the second page, they admit that this is a procedural error on their behalf. The rest of it is just padding.

Best wishes.

FES.

Related Bankruptcy Law Questions