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  • IDEM CAPITAL SECURITIES LIMITED

    On 24 April 2019 we were successful in a consumer credit Appeal on the issue of FCA Authorisation - or rather, lack of FCA Authorisation. Idem Capital Securities Limited admitted in court they were not authorised by the Financial Conduct Authority to exercise the rights of a lender but said they were exempt as they had a valid servicing agreement in place with an affiliated 3rd party who was authorised by the Financial Conduct Authority.

    It was accepted by both parties that there was a valid servicing agreement in place. The issue for the Circuit Judge to decide whether Idem Capital Securities Limited could rely on the exemption under paragraph 55 of the Schedule to the Financial Services and Markets Act 2000 (Exemption) Order 2001 to issue proceedings in the county court.

    The Circuit Judge held as a general principle of law that Idem Capital Securities Limited was not able to rely on the FCA authorisation of an affiliated 3rd party ( paragraph 55 of the Schedule to the Financial Services and Markets Act 2000 (Exemption) Order 2001) for the purpose of bringing a claim. The agreement was unenforceable, and the order of the court below was set aside, and the Claim dismissed.

    Idem Capital Securities Limited did not appeal the judgment.

    If you are currently defending a claim with Idem Capital Securities Limited, whether stayed or ongoing or Idem have obtained a Default Judgment against you and you have any query please post any queries on this thread..
    Last edited by Joanna Connolly; 4th July 2019, 09:29.
    Legal Disclaimer
    I am a solicitor Advocate who specialises in consumer credit and my firm is Joanna Connolly Solicitors. My leading case of Carey v HSBC set the legal precedence for creditors compliance with s.77 & s.78 Consumer Credit Act 1974 statutory requests & enforcement of debts in court. Any posts I make on the AAD Consumer Forum are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide on the forum is without liability. If you are unsure please seek formal legal guidance or contact your local citizens advice bureau at https://www.citizensadvice.org.uk.

    If you need to contact me you can send me a message by clicking my username or by emailing me at jo@joannaconnollysolicitors.co.uk or by telephoning 0330 053 9340.

  • #2
    Well done on your success and thank you for offering members help in dealing with Idem.
    I'm an official AAD Moderator and also a volunteer, here to help make the forum run smoothly. Any views or opinions are mine and not the official line of AAD. Similarly, any advice I have offered you is done so on an informal basis, without prejudice or liability. If in doubt seek advice from a qualified insured professional - Find a Solicitor or go to the National Probono Centre.

    If you spot an abusive or libellous post then please report it by Clicking Here. If you need to contact me, for instance if I've issued you a warning, moved, edited or deleted your post, please send me a message by clicking my username.

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    • #3
      Congratulations on your appeal. But for transparency to benefit the users of the forum and noting your post of MFS Portfolios Ltd V Phelan and West, is it not the case that the decision here is also not a binding decision on other courts as it was before a Judge sitting as a Circuit Judge and not as a High Court Judge?

      Would that not make it one County Court Appeal case for and one County Court Appeal case against a debt purchaser being entitled to rely upon exemptions to bring proceedings? It is a very interesting and highly complex are of regulation, which appears to be, as yet, undecided by a Court with the ability to make a binding decision and many conflicting opinions between commentators.

      Whilst I have some experience of the law surrounding financial matters, I am not legally qualified. At no point should my comments on this forum be taken as advice.

      Comment


      • #4
        My post made it clear that the High Court Judge was sitting as a Circuit Judge:

        "The Circuit Judge held as a general principle of law that Idem Capital Securities Limited was not able to rely on the FCA authorisation of an affiliated 3rd party ( paragraph 55 of the Schedule to the Financial Services and Markets Act 2000 (Exemption) Order 2001) for the purpose of bringing a claim."

        It is not a binding decision but neither is the decision in MFS Portfiolio v Phelan & West. The decisions do not conflict as the decision in the Idem case was confined strictly to whether the claimant itself was able to issue proceedings even where a valid MSA was relied. Although this issue was touched on in the judgment of MFS v Phelan and West the actual act of issuing a claim was not.

        We were unable to appeal the decision in MFS Portfolio v Phelan & West because we won the appeal itself for our client on the issues of:

        1) assignment
        2) the personal account overdraft being unenforceable under the Consumer Credit Act 1974.

        Had we not succeeded in the Appeal itself the decision would have been appealed to the Court of Appeal. However in the Idem Capital Securities case the decision was not appealed by Idem who form part of the Paragon Bank Group. They chose to discontinue all other cases with us instead.

        We have several cases ongoing where we are hopeful that we may be able to get this issue to the Court of Appeal as being an issue of public importance for a binding decision. We will of course keep all AAD members updated.

        It is proving difficult at the moment to get the cases into court as the Claimants are conceding prior to first instance hearings or as in the case of Idem they are choosing not to appeal the decision against them .
        Last edited by Joanna Connolly; 18th July 2019, 15:14.
        Legal Disclaimer
        I am a solicitor Advocate who specialises in consumer credit and my firm is Joanna Connolly Solicitors. My leading case of Carey v HSBC set the legal precedence for creditors compliance with s.77 & s.78 Consumer Credit Act 1974 statutory requests & enforcement of debts in court. Any posts I make on the AAD Consumer Forum are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide on the forum is without liability. If you are unsure please seek formal legal guidance or contact your local citizens advice bureau at https://www.citizensadvice.org.uk.

        If you need to contact me you can send me a message by clicking my username or by emailing me at jo@joannaconnollysolicitors.co.uk or by telephoning 0330 053 9340.

        Comment


        • #5
          Thanks for the information. Explanation makes perfect sense of their actions from a commercial view point. No risk of a binding decision for the sake of a limited run of cases (increasing by the day no doubt though so wonderful for you)
          Whilst I have some experience of the law surrounding financial matters, I am not legally qualified. At no point should my comments on this forum be taken as advice.

          Comment


          • #6
            Originally posted by Joanna Connolly View Post
            Had we not succeeded in the Appeal itself the decision would have been appealed to the Court of Appeal. However in the Idem Capital Securities case the decision was not appealed by Idem who form part of the Paragon Bank Group. They chose to discontinue all other cases with us instead.

            We have several cases ongoing where we are hopeful that we may be able to get this issue to the Court of Appeal as being an issue of public importance for a binding decision. We will of course keep all AAD members updated.

            It is proving difficult at the moment to get the cases into court as the Claimants are conceding prior to first instance hearings or as in the case of Idem they are choosing not to appeal the decision against them .

            I have been made aware that despite this successful Appeal, Idem Capital Securities Ltd are continuing to issue court claims.

            Since they didn't appeal the Judgment, they are deemed to have accepted it.

            If you have received a claim from Idem (including a claim which is stayed), or have already got a CCJ or Default Judgment from Idem, or if Idem are seeking enforcement of a CCJ, then we would like to hear from you.

            Email me on di@joannaconnollysolicitors.co.uk if you would prefer not to post on a public forum.

            I look forward to keeping the forum informed of any developments.

            Di
            Legal Disclaimer

            I am a Litigation Executive at Joanna Connolly Solicitors a firm which specialises in consumer credit. If you need to contact me you can send a message by clicking on my username or by emailing me at di@joannaconnollysolicitors.co.uk or by telephoning 0330 053 9340. Our initial advice is always free.

            Any posts I make on the AAD Consumer Forum are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide on the forum is without liability. If you are unsure please seek formal legal guidance or contact your local citizens advice bureau at https://www.citizensadvice.org.uk

            Comment


            • #7
              Go get them Di!!

              Comment

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