Q&A With Niddy & Joanna Connolly

[Joanna Connolly]

Hi


Personal account overdrafts do come under S.78 of the Consumer Credit Act 1974. Send a S.78 CCA request letter enclosing the statutory fee. We recently had a personal account overdraft declared unenforceable in a Cabot case.

We were recently successful before Circuit Judges in 2 separate Cabot cases on the issue of assignment.

We also obtained a Judgment from a Circuit Judge that because Idem Capital Securities Limited were not authorised by the Financial Conduct Authority they could not issue proceedings in the County Court. The agreement was unenforceable and the para 55 servicing exemption under the Financial Services Markets Act did not apply

Idem servicing is the servicer for Idem Capital Securities Limited.

However these are complicated issues and involve legal argument at trial

[Joanna Connolly]

Another question, if I may.
When can you invoke CPR?
At threat of litigation?
Only when a claim is issued?
At any time when litigation is contemplated?

The CPR is applicable for the Pre-Action Protocols and Pre Action Disclosure. Pre Action Part 36 offers can also be made

[Joanna Connolly]

Never-In-Doubt
Joanna Connolly
Diana Mayhew
Hi Niddy - Jo -Diana
Looks like my post has not been seen. No worries with that tho. Everyone is busy busy. Can i also ask. regarding bank overdraughts. i have used the sites wonderfull 2 o/d letters. However now that the overdraughts seem to get covered by the cca. would that be another weapon further down the line?. Thanks in advance. your time is much appreciated

Bank of Scotland default notices are very problematic too!

[stuckinarut]

Bank of Scotland default notices are very problematic too!

Hi Joanna. Thanks for taking a look in much appreciated. The overdraught in question was was on an arrangement to pay for a long time by bos. then Defaulted and sold the same day. So fingers crossed it will be problematic for cabot financial uk ltd

[ASD]

Hi


Personal account overdrafts do come under S.78 of the Consumer Credit Act 1974. Send a S.78 CCA request letter enclosing the statutory fee. We recently had a personal account overdraft declared unenforceable in a Cabot case.

We were recently successful before Circuit Judges in 2 separate Cabot cases on the issue of assignment.

We also obtained a Judgment from a Circuit Judge that because Idem Capital Securities Limited were not authorised by the Financial Conduct Authority they could not issue proceedings in the County Court. The agreement was unenforceable and the para 55 servicing exemption under the Financial Services Markets Act did not apply

Idem servicing is the servicer for Idem Capital Securities Limited.

However these are complicated issues and involve legal argument at trial

Hi Joanna,

Massive congrats on the outcomes against Cabot and Idem.

I'd be grateful if you could provide some more detail on these cases. For instance, can s78 of the CCA apply to personal account overdrafts no matter when the accounts were opened? or would this only apply post Feb 2011?

With regards to your success against Idem, I note at the bottom of their letter headed paper it outlines that Idem Servicing is a trading style of Paragon Finance Plc, does the same still apply regarding not being able to rely on the para 55 exemption?

However, if Idem's notice of assignment relates to Idem Capital Securities Ltd, does that automatically allow the consumer to argue that they are unable to enforce the agreement?

Also, are you able to give the names of the parties involved in that particular Idem case? or even the case digest?

Lastly, if you could provide some guidance on a relevant issue I have ongoing with Idem Servicing I would be grateful. Idem have advised that due the account being a current account, Lloyds TSB are not legally obliged to provide the terms & conditions or an agreement. How would you combat this statement?

Thank you for taking the time to read this and for any help in advance.

[Joanna Connolly]

1. S.78 CCA 1974 applies to all personal account overdrafts from 1985
2. That is a separate company from Idem Capital Securities Limited
3. Its a complicated legal argument
4. Re Lloyds TSB - . S.78 CCA 1974 applies to all personal account overdrafts from 1985

[Never-In-Doubt]

Hi


Personal account overdrafts do come under S.78 of the Consumer Credit Act 1974. Send a S.78 CCA request letter enclosing the statutory fee. We recently had a personal account overdraft declared unenforceable in a Cabot case.

We were recently successful before Circuit Judges in 2 separate Cabot cases on the issue of assignment.

We also obtained a Judgment from a Circuit Judge that because Idem Capital Securities Limited were not authorised by the Financial Conduct Authority they could not issue proceedings in the County Court. The agreement was unenforceable and the para 55 servicing exemption under the Financial Services Markets Act did not apply

Idem servicing is the servicer for Idem Capital Securities Limited.

However these are complicated issues and involve legal argument at trial

I’m so glad you’ve actually proven this fact. I’ve been bleating on about it for over 12 years and was always shot down.

Thanks Jo. Onwards we go.....

[Joanna Connolly]

We used to have many discussions about this !

[ASD]

Hi Joanna,

Thank you for getting back to me.

I would appreciate your guidance on a particular debt. I have made a s78 request to Intrum regarding a previous Lloyds Current Account overdraft, however they provided me with this response.

"The above account relates to the overdraft on a current account opened with Lloyds Bank Plc in 1986. Until February 2011 bank accounts did not fall within the provisions of the Consumer Credit Act 1974 in respect of providing a copy agreement, as they were exempt from Part V of the Act relating to the form and content requirements of regulated agreements. As such there was no statutory requirement to enter into a formal agreement for the overdraft; therefore a copy agreement for this account does not exist.


Due to time limits in our service level agreements with the original creditor Lloyds Bank Plc, the time limit to request documentation has long expired and they are no longer obliged to provide us with a copy of the agreement. In this respect we have endeavoured to comply with our disclosure obligations but we are unable to provide documentation that is not in our control and/or possession. Your client may wish to contact Lloyds Bank Plc directly in this respect."


Does this essentially mean that they are unable to enforce the debt? And what response would you give in return to the above?

Thanks again.

Arun

[Joanna Connolly]

I've not seen that wording before in correspondence from Intrum.

The agreements are exempt from the form and content regulations but they are not exempt from Part VI of the Consumer Credit Act 1974 ("CCA") which includes S.78 CCA. They have responded to your request under S.78 CCA as they have said there is no agreement .S.78 (1) says the creditor shall .. " shall give the debtor a copy of the executed agreement (if any)....".

It is a useful confirmation that they hold no documentary evidence, and cannot obtain any from the original creditor, should they issue against you in the future.

[Never-In-Doubt]

Hi Joanna,

Thank you for getting back to me.

I would appreciate your guidance on a particular debt. I have made a s78 request to Intrum regarding a previous Lloyds Current Account overdraft, however they provided me with this response.

"The above account relates to the overdraft on a current account opened with Lloyds Bank Plc in 1986. Until February 2011 bank accounts did not fall within the provisions of the Consumer Credit Act 1974 in respect of providing a copy agreement, as they were exempt from Part V of the Act relating to the form and content requirements of regulated agreements. As such there was no statutory requirement to enter into a formal agreement for the overdraft; therefore a copy agreement for this account does not exist.


Due to time limits in our service level agreements with the original creditor Lloyds Bank Plc, the time limit to request documentation has long expired and they are no longer obliged to provide us with a copy of the agreement. In this respect we have endeavoured to comply with our disclosure obligations but we are unable to provide documentation that is not in our control and/or possession. Your client may wish to contact Lloyds Bank Plc directly in this respect."


Does this essentially mean that they are unable to enforce the debt? And what response would you give in return to the above?

Thanks again.

Arun

So what Jo is saying is no, you have done a formal request and they have confirmed they cannot comply so you wouldn't now chase things. Leave it for them to make threats then check back with us, but do not go chasing them for resolution - remember as it stands today it is UE by their own admission.

[Joanna Connolly Solicitors]

I have made a s78 request to Intrum regarding a previous Lloyds Current Account overdraft.

I'll also add that you may have another weapon in your arsenal even if they do comply with your s78 CCA Request (which is clearly doubtful) and that's the important fact that Intrum do not currently have FCA Authorisation so they cannot lawfully issue legal proceedings in the county court >

Intrum UK Finance Limited is not authorised by the Financial Conduct Authority to exercise the rights of a lender. They rely on the para 55 FSMA 2000 servicing exemption.

We look forward to using the same legal arguments in the future against Intrum UK Finance Limited which we used against Idem Capital Securities Limited in the recent successful FCA authorisation Appeal where the Circuit Judge found that the para 55 FSMA 2000 servicing exemption did not allow the unauthorised debt purchaser to issue proceedings in the county court.

Di

[Never-In-Doubt]

Bank of Scotland default notices are very problematic too!

Didn't you beat one of mine who tried to issue a CCJ last year or so? I have two others who won't dare come after me now - too scared of you Jo

[ASD]

I'll also add that you may have another weapon in your arsenal even if they do comply with your s78 CCA Request (which is clearly doubtful) and that's the important fact that Intrum do not currently have FCA Authorisation so they cannot lawfully issue legal proceedings in the county court >




Di

Hello Di and others,

Thank you for your message.

May I ask how you have confirmed that Intrum are not FCA authorised? As according to the FCA register, they do appear to be registered.

Also, if a company states that they "are not required to comply with a s78 request, due to the debt relating to a current account overdraft, which is a service agreement and not a credit agreement, as defined by CCA", what would be the best response in relation to this?

Thank you for your help!

Arun

[nightwatch]

Hello Di and others,

Thank you for your message.

May I ask how you have confirmed that Intrum are not FCA authorised? As according to the FCA register, they do appear to be registered.

Also, if a company states that they "are not required to comply with a s78 request, due to the debt relating to a current account overdraft, which is a service agreement and not a credit agreement, as defined by CCA", what would be the best response in relation to this?

Thank you for your help!

Arun

ASD/Arun, It may be a good Idea to start your own thread about this account, if you give us more details about it we may be able to offer you some help, if you require it,

regards NW