Defence/Counterclaim

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    #46
    Originally posted by alteano1965 View Post
    Maybe that could be my argument, should I need to defend, I had no reason to think that those two payments were anything else than due rent, they were make by cheque, and there is no reference next to the payment in my bank statement.
    As I've said before, if the tenant were to specifically claim those two payments were not rent relating to the previous tenancy, he'd need hard evidence to support this claim. He doesn't have this evidence. Whereas you have evidence that there was a previous tenancy and that those rent payments were rent.

    There is no point worrying about what the tenant might claim. Wait and see whether 1. the counterclaim does proceed, 2. if so, what evidence the tenant submits.

    Comment


      #47
      Thank you Westminster,

      If I am ever required to, how could I provide evidence that the tenant was indeed living at the rented property before the commencement of our rental agreement, or that the neigbour did not use the house as his main residence?

      It is still not clear if the counterclaim will be struck out, maybe it is discretionary to the judge?

      As a point of interest, I found today a letter in the kitchen, it was a summons for the 1oth March from the Magistrate court to the tenant addresssed to him, for his unpaid council tax. This could mean that he has not given the council his new address, maybe he is no longer claiming housing benefit.

      Best regards

      Comment


        #48
        Hi

        Forms submitted today at the Court. Was informed that the defendant had submitted his allocation questionnaire on time, but had not paid the fee for the counterclaim, therefore it would be dismissed and I should receive communication from the Court about this. I did submit my defence, just in case.

        Thank you again for all the help

        Regards

        Alteano

        Comment


          #49
          Originally posted by alteano1965 View Post
          If I am ever required to, how could I provide evidence that the tenant was indeed living at the rented property before the commencement of our rental agreement, or that the neigbour did not use the house as his main residence?
          First Q - by the fact that he paid two rent installments, your bank can provide confirmation that the payment came from T's bank. Second Q - you do not need to prove that the neighbour didn't use the house as his main residence; no-one is claiming he did, and it not part of the (probably to be struck out) counterclaim.

          As a point of interest, I found today a letter in the kitchen, it was a summons for the 1oth March from the Magistrate court to the tenant addresssed to him, for his unpaid council tax.
          Contact the council tax department and the magistrate's court and give them T's new address. Also tell council tax that T vacated on such and such a date.

          Comment


            #50
            Originally posted by alteano1965 View Post
            Hi

            Forms submitted today at the Court. Was informed that the defendant had submitted his allocation questionnaire on time, but had not paid the fee for the counterclaim, therefore it would be dismissed and I should receive communication from the Court about this. I did submit my defence, just in case.
            Well, hopefully it'll get struck out and stay that way. It does appear to suggest that the T couldn't get assistance with the fee.

            Comment


              #51
              Originally posted by alteano1965 View Post
              Forms submitted today at the Court. Was informed that the defendant had submitted his allocation questionnaire on time, but had not paid the fee for the counterclaim, therefore it would be dismissed and I should receive communication from the Court about this. I did submit my defence, just in case.
              Once the counterclaim has been thrown out, you might be able to ask for a wasted costs order. Not sure this applies, but if it does at least you will be able to claim back your £35 allocation fee.
              On some things I am very knowledgeable, on other things I am stupid. Trouble is, sometimes I discover that the former is the latter or vice versa, and I don't know this until later - maybe even much later. Because of the number of posts I have done, I am now a Senior Member. However, read anything I write with the above in mind.

              Comment


                #52
                Thank you westminster,

                You are right; the bank statements should show all the monies I have received. One question however, if I needed to submit my bank statements as proof, will I have to give copies to the other part as well?; Besides their rent payment, my bank statements contain financial information that I would not be particularly interested that the other part knows.

                I think at some point, the previous tenancy will discussed at the hearing, as I feel that the defendant believes that he "inherited" the deposit from his relation. If this happens, could I claim that a previous tenancy would have to be discussed at a separate hearing, and the previous tenant would have to be the claimant?

                Thank you again

                Regards

                Alteano

                Comment


                  #53
                  Originally posted by alteano1965 View Post
                  You are right; the bank statements should show all the monies I have received. One question however, if I needed to submit my bank statements as proof, will I have to give copies to the other part as well?; Besides their rent payment, my bank statements contain financial information that I would not be particularly interested that the other part knows.
                  Obviously, if the T's counterclaim is thrown out, you will not need to submit such evidence. But in theory, yes, both parties must receive copies of each other's evidence. Anyway, you said before that the bank statement showed the branch where the credit was made so you only suspected the payments were made by the defendant? - better proof would be to get a letter from your bank confirming the account details of the payer of the payments. Alternatively, if the statement does show payer details, then you could photocopy it, strike through irrelevant information with a black marker pen, then re-photocopy it.

                  Similar to some MP's expenses, see example in this link.


                  I think at some point, the previous tenancy will discussed at the hearing, as I feel that the defendant believes that he "inherited" the deposit from his relation. If this happens, could I claim that a previous tenancy would have to be discussed at a separate hearing, and the previous tenant would have to be the claimant?
                  Again, if the counterclaim is thrown out, the issue of the alleged deposit and the previous tenancy will not be relevant or need to be discussed - all you are claiming is arrears from the subsequent tenancy.

                  But as to your question, if the counterclaim were to proceed, and the tenant claimed the previous tenant's deposit was somehow his deposit, this argument quite simply wouldn't stand up. It would not need to be discussed at a separate hearing. If the previous tenant wants to make a claim for non-compliance with deposit protection, that's up to him - but as it wasn't an AST, and the tenancy ended over two years ago, I think this is extremely unlikely to happen (and you are worrying far too much about it).

                  Comment


                    #54
                    Thank you Westminster,

                    I appreciate your guidance, I am trying to understand the law, and how it works in Court, if not this time, all this information will be useful for me in the future, should I ever face a similar legal problem. It is a complete new scenario for me, thank you again

                    Regarding payment of rent, during the 25 months of duration of the tenancy, the tenant only paid 20 months rent, always by cheque into my bank account, some of those cheques bounced and were paid eventually, some other were returned unpaid.

                    Fortunatelly I have kept all banks statements, they come to 107 pages of A4 size, so if the counterclaim stands, I would have to provide 2 separates sets each of 100 pages photocopied.
                    In your opinion, blanking out the non relevant entries of the bank statements would be accepted in Court? (MPs seem to have done that)

                    Thank you again.

                    Best regards

                    Alteano

                    Comment


                      #55
                      Hi everyone.

                      A big thank you to this forum, and specially to Westminster, who has helped me a lot with my claim and defence.

                      I have received a letter from the Court giving me a date for a Hearing for July 23rd 2010, on the Small Claims Track. Still do not know if the counterclaim has been truck out, but I suppose that the fact that the case has been allocated to the small claims track, and not the fast track is good news.

                      I have read that Legal aid is not available for small claims, so maybe the defendant will not be represented by a solicitor, but by himself.

                      Will be grateful for any opinions on the subjet.

                      Thank you again

                      Alteano

                      Comment


                        #56
                        Where a tenant alleges payments have been made, it is NOT for the landlord to prove he did NOT receive such payment, it is for the tenant to prove that he DID pay.

                        So, forget about photocopying 100's of bank statements, just taken them with you to court on the hearing day. In examination, ask the tenant for a few of the disputed dates when he says he paid into your bank account (after confirming its the correct account number in court) and then ask him to produce a receipt or paying in slip. When he says he cannot, look through your statements several days either side and state that this particular payment does not appear on the bank statement. Do that say 5 times and the judge will see the tenant is trying it on and accept your figures and reject the tenants.

                        Comment


                          #57
                          Yes. Every case involves the person propounding a claim or an allegation to pot forward supportive evidence. Here, it's T who alleges payment; so it's T who has to support this claim, on at least the balance of probabilities. If he can substantiate his claim, it's then for L to try and rebut it.
                          JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                          1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                          2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                          3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                          4. *- Contact info: click on my name (blue-highlight link).

                          Comment


                            #58
                            Originally posted by davidjohnbutton View Post
                            Where a tenant alleges payments have been made, it is NOT for the landlord to prove he did NOT receive such payment, it is for the tenant to prove that he DID pay.

                            So, forget about photocopying 100's of bank statements, just taken them with you to court on the hearing day.
                            djb, are you perhaps thinking this thread is about a s.8 hearing? Because it's a form N1 county court claim by OP for arrears, against a T who has already been evicted via s.21 route. As such, OP will surely have to disclose in advance any evidence he may wish to use at the hearing?

                            Comment


                              #59
                              Originally posted by alteano1965 View Post
                              I have received a letter from the Court giving me a date for a Hearing for July 23rd 2010, on the Small Claims Track. Still do not know if the counterclaim has been truck out
                              Have you tried phoning the court to find out, because it has been at least two weeks now, hasn't it?

                              I have read that Legal aid is not available for small claims, so maybe the defendant will not be represented by a solicitor, but by himself.
                              Yes, I'm fairly sure that you cannot get legal aid for small claims.

                              Comment


                                #60
                                My reply is applicable to both a S8 process or an ordinary summons.

                                I for one would not be photocopy disclosing my bank statements as part of discovery - on the grounds of privacy and id fraud prevention. I would take them into court with me if need be

                                The procedure is semi formal in the small claims court - hopefully the tenant would disclose what payments he alleged he had made so the other party can go through them and accept or rebut - also receipts ought to be disclosed too. If they arnt, the landlord can always apply for an order forcing the tenant to disclose this information and produce receipts by a certain date or have his counterclaim struck out.

                                Comment

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