Challenging Debt buyers County Court Summons
An important CHECKLIST to make sure you have sent every element of the DEFENCE
The key two elements to defending a Zombie Debt Buyer Case.
If the Original Creditor lent money, make and IRRESPONSIBLE LENDING COMPLAINT
Follow the CPR-18 PROCESS which firsts ASKS for the Deed of Assignment and then gets the COURT to ORDER them to provide it when they REFUSE!
The Court Process takes about 6 months on average. Most claims are discontinued before they get to court.
BEFORE THEY MAKE A CLAIM
If you challenge a debt buyer at the earliest opportunity, you can establish legally that no money is owed. They are required by the Law of Property Act 1925 to have a DEED of Assignment (not a notice). They skip this legal step because they buy debts in bulk without ANY of the paperwork required to make it legal. They can't go back and get the paperwork later.
Prior to court proceedings, Debt buyers like: Lowell, Cabot Financial, BWLegal, Arrow Global, etc. are best dealt with by way of the 3 Letter process, which disputes the debt and asks them to provide the Contract and Deed of Assignment. The DO NOT have the Deed of Assignment, however much they say they have.
If they issue a "LETTER OF CLAIM"
This is a good opportunity to put them on the spot to provide the Original Contract and Deed of Assignment. Seize the opportunity and send them the Pre-Action Letter requesting the documents:
You should be able to get them to send the Deed of Assignment
If they have a judgement already
If you have a County Court Judgement already, you need to have it SET ASIDE - The form for doing this is an N244. You can get help with the cost by filling in an EX160. Your local County Court can help you with doing this. It can be done online if it was taken out that way. One good reason to have it set aside is if you didn't receive the original paperwork. It currently costs £130 to make an application to set aside if you didn't receive the original paperwork, £275 if you received the claim for but did not act.
You have a right to a FAIR TRIAL under Article 6 of the European Convention on Human Rights.
I Just got a Claim form!
Act quickly if you receive a County Court Summons,
you only have 14 DAYS TO RESPOND!
Follow the instructions on the Summons to ACKNOWLEDGE SERVICE and DISPUTE the claim. YOU SHOULD FILE A DEFENCE stating that the CLAIM is DISPUTED in FULL as you have no CONTRACT with them. What you need to look at are THE PARTICULARS OF CLAIM. These should be numbered and to file a defence you have to go through one at a time and dispute each element of the claim. If you do not dispute it, you are effectively agreeing it. The Particulars of claim are quite often on the County Court Summons, but they can be on a separate piece of paper and it could be forgotten or arrive in a different letter. You should file a defence and then send the letters that lower down on this page. The CPR 18 request for information and a Formal Request under the Consumer Credit Act 1974 for a copy of the contract.
The Defence, disputing EVERY point of the Particulars of Claim
1) It is disputed that the Defendant entered into an agreement with Vodaphone under account reference 7030493249 ("the Alleged Agreement"). The Claimant is put to strict proof to provide a copy of the Contract upon which they rely.
2) It is disputed that the Alleged Agreement was terminated because the Defendant failed to maintain the required payments. The claimant should provide a full breakdown of the amount they are claiming. The Claimant should provide proof that the Agreement was terminated and on what date. The Claimant is put to strict proof to provide a copy of all statements and invoices in relation to this account.
3) It is disputed that the benefit of the Alleged Agreement has been legally assigned to the Claimant on 30/08/2018 due to the constraints of:
Section 1(3) Law of Property (Miscellaneous Provisions) Act 1989,
Section 44 of the Companies Act 2006,
The Regulatory Reform (Execution of Deeds and Documents) Order 2005 (S.I. 2005/1906), arts. 1(1),3 ,
Section 136 of the Law of Property Act 1925.
Section 196 of the Law of Property Act 1925.
The Claimant is put to strict proof to provide the Deed of Assignment required for absolute assignment of the alleged debt. The Defendant is entitled to view the Deed of Assignment that the Claimant is relying on in this matter. The Defendant is willing to accept redacted copies of any documents that may contain sensitive commercial data or personal details of other clients providing that evidence relating to the Defendant is apparent.
See (Van Lynn Developments v Pelias Construction Co Ltd 1968.[3] All ER 824) Where Lord Denning MR said 'the debtor is entitled to view the sale agreement to ensure that the assignee can give him good discharge under the contract'
Also; [Webster v Ridgeway (2009) ] - Where a debtor is entitled to see a redacted version.
The Claimant should also provide proof that any Notice of Assignment was served on the Defendant. Copies of any Notices of assignment should be provided.
4) It is disputed that repeated requests for payment have been made. It is disputed that the sum of £742.88 remains due and outstanding.
a) the sum of £742.88 is disputed. The should provide a detailed breakdown of exactly how this sum has been calculated with supporting evidence. The Claimant should show any calculations of V.A.T. for this figure.
b) Interest pursuant to Section 69 of the County Courts Act 1984 is disputed. The daily rate of £0.163 is disputed. The sum of £51.45 is disputed. The Defendant denies any indebtedness to the Claimant but particularly denies that they are due statutory interest on the alleged amount, as such the Defendant requests disclosure of the amount the Claimant claims to have paid for this alleged debt. The Claimant is a Debt Purchase Company who suffers no loss in this case due to the actions of the Defendant. The Claimant is put to strict proof to show full accounting in relation to this matter. The Claimant is put to Strict Proof to show that it is not attempting to profit out of this Claim as the Claimant suffers no loss due to any actions be the Defendant.
c) Costs are disputed and the court is invited to award costs against the Claimant.
5) The Defendant has requested an properly formatted signed bill/invoice as per the Bill of Exchange Act 1882. It is the Defendant’s understanding that; the Defendant would be in direct contravention of the Bills of Exchange Act 1882, the Fraud Act 2006 and various other offences under HM Revenue and Customs regulations with regard to Value Added Tax if the Defendant were to settle this matter without first receiving such an invoice. The Claimant is put to strict proof to proof to provide a copy of any bill or invoice they claim to have sent in this matter.
It is contended that the Claimant is in breach of Rule 16.4(a) of the Civil Procedure Rules 1998 in that the Particulars of Claim do not set out a clear and concise statement of facts upon which they rely.
In particular, the Particulars of Claim does not identify:
(a) the date that the Defendant is Claimed to have entered into an agreement with Vodaphone;
(b) any alleged phone number relating to the Alleged Agreement with Vodaphone;
(c) the nature of the agreement with Vodaphone;
(d) on which date(s) the Defendant had allegedly failed to maintain the repayments; and
(e) the exact date when Vodaphone terminated the agreement and gave notice of the same.
(f) whether the Claimant is relying on an Equitable Assignment or a Legal Assignment.
The defendant invites the court to dismiss this claim as it is in breach of pre court protocols in relation to the particulars of claim under practice direction 16, set out by the ministry of justice and also civil procedure rules under 16.4 and to allow such defendants costs as are permissible under civil procedure rule 27.14.
I would also like to take this opportunity to remind the Claimant that under Civil Procedure Rule Part 39 PD 39a (3.3) any documents upon which the claimant intends to rely the ORIGINALS should be brought to any subsequent hearing for examination.
STATEMENT OF TRUTH
I believe the facts in this statement are true.
[defendants name]
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It is worth noting that you have 2 angles to dispute, the debt was purchased so The Debt Buyer will not be aware if the original contract was breached by the Company they bought the debt off. So the original contract with the original company can be challenged and the validity of the Contract being transferred to the Debt Buyer. What they need for a successful transfer of the debt is a "Deed of Assignment". Without this all they can produce is a bit of paper with a different company name on it. Because of a change in the law, it is unlikely that they will have a correctly formatted Deed of Assignment, so questioning the validity of that document is important.
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Requests for documents should be made citing Civil Procedure Rules for the best result in either the Debt Buyer dropping the case or the court dismissing it.
Once you've filed a Defence (deadline 33 days after the claim Issue Date) the court will send it to the Claimant advising them that they have 28 days to inform the court if they intend to continue with the proceedings.
If the Claimant doesn't inform the court of their intention then the claim automatically becomes stayed (a pause button on the proceedings).
If the Claimant informs the court that they wish to continue with the proceedings you will be sent a Directions Questionnaire
(Form N180) by the court to complete. The form (form N180) is sent to both Claimant and Defendant:
You must complete this by the date given, and send it back to Northampton, with a copy to the other side (or their solicitors if they've nominated one as the address for service). The recommended answers to the questions are as follows:
A1 = NO to mediation (they want the whole amount, you want to pay them nothing, so no scope for mediation. This will not go against you)
B = fill in all the details, name, address, etc
C1 = YES to small claims track – this is the limited costs track for claims up to £10,000 in value
D1 = NO - You do NOT want the case decided on the paperwork!
"The defendant respectfully requests the opportunity to cross examine any witness relied on by the Claimant"
E1 = PUT THE NAME OF YOUR LOCAL COUNTY COURT;
E2 = NO to expert evidence (this relates to medical negligence cases and suchlike);
E3 = 1 witness (that’s you) (or more if you are going to get another person to provide a statement);
E4 = Put down the dates of any pre-booked holidays, NO to interpreter (unless you need one);
E5 = Put if you or any witnesses are Vulnerable and need assistance from the court.
Note: Some companies are including a 'request for special directions' asking the Court to hear the case on the papers only, without an oral hearing. You should oppose this, and include the following text in D1: “The Defendant opposes the Claimant’s request for special directions, and requests that the case be listed for an oral hearing at the defendant’s home court, pursuant to CPR 26.2A(3)”.
The case file will then be transferred to your local County Court, and you will eventually receive a Notice of Allocation, giving you a date and time for the hearing. It will also specify a deadline for you to submit a Witness Statement, and any other documents you intend to rely on, usually 14 days before the hearing but sometimes earlier than that. Your Witness Statement can expand upon the points made in your original Defence, and must start with the following "I, Joe Bloggs, of 23 Acacia Avenue, Anytown, AN1 2BC, am the Defendant in this matter, and will say as follows". You should attach to your Witness Statement any evidence to support your assertions, eg photos of signage, etc. Optionally, you may also want to include a Skeleton Argument to flesh out the legal points, or you could include those as part of your Witness Statement.
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If the Debt Buyer keeps pushing the matter to court, you ideally want to catch them out for breaching Civil Procedure Rules and apply for the case to be dismissed. If it gets to court it will boil down to a) Do they have a contract with you, which is no, though the original contract may be offered as "the contract". The document they need then is a "Deed of Assignment" which in many cases they will say is a "privileged document" and they will not show it to you. This is because they do not have the document in the correct format if at all. So they may play a game of "cat and mouse", where you are requesting documents and they cannot or will not provide them to you, but they must provide them to the court if so ordered. So if you get to that stage, get the court to order the claimant to produce the documents.
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If the ORIGINAL CREDITOR loaned you money.
Make and irresponsible lending complaint to them.
Don't stop the process until they are ORDERED by the Financial Ombudsman to refund ALL interest and charges:
Next Step, make a CPR request for the documents:
If a claim Is under £10k, send a CPR 18 Request for Further Information to the claimants solicitor or if they're not using one the Claimant themselves. The whole point to making a CPR18 request is to use it to apply for an Unless Order - Unless the claimant complies with the request for further information made under CPR Part 18 on xx/xx/xxxx by 4pm 14 days from the date of this order, the claim will stand to be struck out and Judgment awarded in favour of the defendant.
This is a VITAL part of defending yourself against this claim, because if they decide to continue with the claim once you've submitted your defence you can potentially use this request to get your claim struck out
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If the claim is above 10k, and not going to be allocated to the small claims track, you should send a CPR 31.14 request for information.
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Formal Request under Consumer Credit Act 1974
This should be sent when a debt is regulated under the Consumer Credit Act 1974. Any debt where credit is extended like credit cards, bank loans etc. Quite often the debt buyer is unable to provide a copy of the original contract with the original lender. If they can't provide the original contract, they will find it very difficult to prove that even the original debt existed as well as being unable to prove that the "assignment" of the debt is legal.
The Zombie Debt Buyer will attempt to GASLIGHT you into paying.
This is an example letter (after a 6 month delay) by Cabot Zombie Debt Buyer to try to convince a Defendant that they should give in and pay a 'debt' that they don't legally owe.
The debt buyer might at send you a Tomlin Order agreeing to pay the 'debt'!
DO NOT sign it.
Filing a WITNESS STATEMENT
The FINAL and probably most important part of defending a Claim.
If the Claimant sends you a Witness Statement they are preparing to argue the case in court and you should file a response.
Often Zombie Debt Buyers will DISCONTINUE their claim BEFORE providing a Witness Statement, so if you receive theirs you should expect them to go all the way to COURT, so you should RESPOND,
Ideally you will have BEAT them BEFORE this stage with CPR-18 and Irresponsible Lending Complaints.
Sometimes the Court will order them to provide theirs first, but sometimes they will order an exchange at the same time!
If this happens, file a Witness Statement as ORDERED by the Court to comply with the instructions.
A Witness Statement for the Defence is normally a point by point DISPUTE of everything in the Claimant's Witness Statement:
Going INTO Court
If you have compiled filed you Acknowledgement of Service and Allocation Questionnaire and complied with Court instructions and timetable, you should eventually find yourself attending a court hearing. Here are the arguments:
So the legal argument is:
They say ' you owe me money'
You say 'prove it'
They say ' here's the Notice of Assignment from your Original Creditor' (all wet because they've just printed it off)
You say - 'I have the right to see the Deed of Assignment'
They say - 'no you don't, it's commercially sensitive etc etc.'
You say - OK take me to Court and we'll get a Judge to Order the Disclosure as I've a right to see it
They say - shit what do we do now - we don't have it not in the format it should be in - we'll just keep on with the 'you don't have the right to see it' and hope you'll give in
it's a game of bluff and double bluff
How Long does it all take?
Acknowledge claim - extends time to get docs and consider defence to 33 days from date of issue
Once a defence is filed the claimant has 28 days to respond.
Receive a directions questionnaire from the court, which you complete and return. This tells the court where to send the claim (ie your local court).
Probably have a mediation appointment by telephone - good point to settle out of court if needed. (if you ticket for mediation)
Your local court contact you in a few weeks after they get the files and give directions as to the next steps - normally to swap witness statements and evidence, and then give you a hearing date ( normally ends up being 5/6 months from issue of the claim ).
Have the hearing.
Then you have 28 days to pay in full if you don't want the CCJ registered for 6 years. ( so if you want to defend fully it's worth saving up over next few months to ensure you can pay it off in one go if it all goes wrong )