IDEM CAPITAL SECURITIES LIMITED

[Joanna Connolly]

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..

[cymruambyth]

Well done on your success and thank you for offering members help in dealing with Idem.

[Rebz]

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.

[Joanna Connolly]

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 .

[Rebz]

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)

[Joanna Connolly Solicitors]

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

[Timewilltell]

Go get them Di!!

[hard to guess]

Diana Mayhew Hello this is very interesting to read, I too have been chased by IDEM for something which was formerly Capital One. I will send over all details I have for this and look forward to progressing.

[Joanna Connolly Solicitors]

Diana Mayhew I too have been chased by IDEM for something which was formerly Capital One. I will send over all details I have for this and look forward to progressing.

Hello hard to guess

Was this a Capital One credit card or loan?

I look forward to getting the details from you by email (for privacy reasons) using di@joannaconnollysolicitors.co.uk

Di

[hard to guess]

Hello hard to guess

Was this a Capital One credit card or loan?

I look forward to getting the details from you by email (for privacy reasons) using di@joannaconnollysolicitors.co.uk

Di

Hi - sorry I should have clarified, it was a secured loan. I will send over all further details I can find via email

[Joanna Connolly Solicitors]

I should have clarified, it was a secured loan.

I had a hunch it might have been a secured loan from Capital One assigned to IDEM since I've recently been approached by others in the same or similar situation as you - hence I asked the question.

Di

[hard to guess]

I had a hunch it might have been a secured loan from Capital One assigned to IDEM since I've recently been approached by others in the same or similar situation as you - hence I asked the question.

Di

They are calling and sending SMS every day now, should I ignore the calls? Don't trust speaking to them on the phone as things are conveniently lost, much prefer to keep in writing.

[Joanna Connolly Solicitors]

They are calling and sending SMS every day now, should I ignore the calls? Don't trust speaking to them on the phone as things are conveniently lost, much prefer to keep in writing.

Yes, ignore the calls and texts.

Wait for them to write to you so you've got a paper trail.

It's not unknown for call logs to be 'amended' or have missing information

Di

[hard to guess]

Hello!

They have sent a "different" kind of letter today. Not a formal court letter or anything, but they have started to "threaten"

It states that they are in the process of referring the account to their litigation department in relation to the outstanding balance.... "as detailed in the default note previously issues". (that's an interesting one as I do not have this....)

It states if they do not hear anything within 15 days from the letter their litigation department will be instructed to commence repossession action.

Am I right in thinking this is them just trying to "Scare" me as they do not have a leg to stand on and cannot legally enforce this given they are operating out of Luxembourg?

[The Tech Clerk]

from next drawer down??? see what next!