Idem Capital Securities CCJ

[Confused1]

Hi

I wonder if anyone can help, we have an old HSBC credit card that was sold to Idem some time ago

We were originally on a DMP but stopped making payments a year ago as OH made redundant.

Early last year we started asking for CCA and Idem were able to supply one, we had this looked into on another forum and were advised it was unenforcable, we have left things since then.

Idem have now issued a CCJ claim form for this debt dated 24th July.

Not sure now what we should do, can we contest it as we believe the debt is unenforcable, however Idem must believe it is.

Or call them to negotiate a part settlement?

Would they then cancel the court action?

really not sure what we do and would appreciate any advice.

Thank you

[MIKE770]

Check dates

Acknowledge Claim


CCA Request

CPR 31.14 Request

[pt2537]

Hi

I wonder if anyone can help, we have an old HSBC credit card that was sold to Idem some time ago

We were originally on a DMP but stopped making payments a year ago as OH made redundant.

Early last year we started asking for CCA and Idem were able to supply one, we had this looked into on another forum and were advised it was unenforcable, we have left things since then.

Idem have now issued a CCJ claim form for this debt dated 24th July.

Not sure now what we should do, can we contest it as we believe the debt is unenforcable, however Idem must believe it is.

Or call them to negotiate a part settlement?

Would they then cancel the court action?

really not sure what we do and would appreciate any advice.

Thank you

Idem are a nightmare to deal with, they dont accept they are in the wrong even when its staring them in the face.

Do you have a copy of the agreement? HSBC did have some problems with some of their agreements so its worth checking, also do you have a Default notice? They must serve a default notice to be able to claim the fulll balance due under the card.

[Confused1]

Check dates

Acknowledge Claim


CCA Request

CPR 31.14 Request

Hi there
Thanks for responding, are the things you mention steps we need to take?

Thank you

[Confused1]

Idem are a nightmare to deal with, they dont accept they are in the wrong even when its staring them in the face.

Do you have a copy of the agreement? HSBC did have some problems with some of their agreements so its worth checking, also do you have a Default notice? They must serve a default notice to be able to claim the fulll balance due under the card.

Hi
thanks for responding, yes we do have a copy of the agreement but when someone from another forum looked at it they advised it was not enforceable, it is very basic. Im not sure whether it was ever defaulted will have to check credit record however it has now dropped off.

thank you

[pt2537]

Hi
thanks for responding, yes we do have a copy of the agreement but when someone from another forum looked at it they advised it was not enforceable, it is very basic. Im not sure whether it was ever defaulted will have to check credit record however it has now dropped off.

thank you

Hi,

ok i dont want to sound rude, but i never rely on what someone else says, unless i see the document i dont form any views, i had a case which ended up with another forum saying the agreement was enforceable, HHJ Worster in Phoenix v Cresswell came to a different conclusion entirely.

On the Default point, forget the credit file, that is irrelevant, defaults on credit files are not s87 default notices, they are often confused but are two different things entirely.

Check your records, very important, also what have IDem said in their claim? Id like to see the pleadings as i have struck out a load of claims recently for noncompliance with Doyle v PRA Group, so its worth checking the pleadings too

[Confused1]

Hi,

ok i dont want to sound rude, but i never rely on what someone else says, unless i see the document i dont form any views, i had a case which ended up with another forum saying the agreement was enforceable, HHJ Worster in Phoenix v Cresswell came to a different conclusion entirely.

On the Default point, forget the credit file, that is irrelevant, defaults on credit files are not s87 default notices, they are often confused but are two different things entirely.

Check your records, very important, also what have IDem said in their claim? Id like to see the pleadings as i have struck out a load of claims recently for noncompliance with Doyle v PRA Group, so its worth checking the pleadings too

Hi

Will go back through the paperwork see if I can find a default notice from them, will try and copy the extract from the claim where Idem put the details.

Hopefully that is ok

[Rebz]

"They must serve a default notice to be able to claim the full balance due under the card."

In most cases this would apply but it is a dangerous blanket statement. If the debt is fully in arrears PRA Group V Doyle has no application and you are on a hiding to nothing. If the Claimant claimed the arrears in the alternative, as there is no bar to claiming the arrears, that would also cause problems to that line of argument (insofar as the arrears).

As PT says, no views can be formed on the specifics of a case until such time as the documents relevant to that case have been considered.

[pt2537]

"They must serve a default notice to be able to claim the full balance due under the card."

In most cases this would apply but it is a dangerous blanket statement. If the debt is fully in arrears PRA Group V Doyle has no application and you are on a hiding to nothing. If the Claimant claimed the arrears in the alternative, as there is no bar to claiming the arrears, that would also cause problems to that line of argument (insofar as the arrears).

With all due respect, while it is right to say that arrears are recoverable without a default notice, the Court of Appeal was very clear "there would have been both a complete defence to a claim for all outstanding sums under the Agreement " so ALL SUMS OUTSTANDING UNDER THE AGREEMENT means clearly all sums, on a credit card agreement i have seen the likes of Link try and argue that the balance is arrears but that argument is shot down quickly when you point out that a credit card agreement is an open ended agreement which revolves monthly. And thus a Default notice is needed the minute the creditor seeks the full outstanding balance or to stop the agreement rolling over.

[pt2537]

With all due respect, while it is right to say that arrears are recoverable without a default notice, the Court of Appeal was very clear "there would have been both a complete defence to a claim for all outstanding sums under the Agreement " so ALL SUMS OUTSTANDING UNDER THE AGREEMENT means clearly all sums, on a credit card agreement i have seen the likes of Link try and argue that the balance is arrears but that argument is shot down quickly when you point out that a credit card agreement is an open ended agreement which revolves monthly. And thus a Default notice is needed the minute the creditor seeks the full outstanding balance or to stop the agreement rolling over.

And of course not to mention the debt purchase industry's lack of understanding of s86A-C too, that often causes them problems.

[Rebz]

Thanks for your insight PT, I appreciate it, though I am not sure where notice of sums in arrears comes into the point I was (perhaps poorly) making.

My reading of Doyle was that, In that particular case, on its facts, the Judge held that "absent service and expiry of a default notice compliant with CCA ss.87 and 88, there would have been both a complete defence to a claim for all outstanding sums under the Agreement and an unanswerable right to strike out the claim".

I though the finding was limited to that case on its facts and its individual pleadings, not to all credit card claims generally. It will have application where the account is not fully in arrears and the pleadings are based accelerated recovery, so the bulk of matters, but would it not still turn on the facts of the case?

If, for example, a creditor who had restricted the line of credit, were to cease charging interest on x date, being a date before the next "due date" then, post that "due date" the agreement would remain fully in arrears as all sums are "past due". I cannot see in that instance that S87(1) would provide any statutory bar to the claim, as it would not be relevant to the cause of action (how would limitation apply then though, would it not apply to run from the date of each individual missed instalment, that's a complicated mess?). It is analogous then to a fixed term loan agreement that has not been paid within its term.

Likewise, if the Claimant claimed the arrears in the alternative or say all sums lawfully due and owing, as there is no bar to claiming the arrears, could that not also cause problems to the argument arising out of Doyle given Woodchester v Swayne & Co?

I think the point I was making (or trying to make) stands. It may well turn out that the point in contention is applicable and gives a valid defence, even a right to strike out as you say, but most of these points are technical and complicated. It is dangerous to blindly rely a "one size fits all" approach without a proper investigation in to both the pleadings and evidential documents relevant to the specific case.

I am not for a minute suggesting your statement is not sound in the bulk of cases, merely cautioning against persons taking a statement without proper consideration of its application to a specific case.

As an extreme example of people blindly relying on a "one size fits all" approach without a proper investigation and finding themselves in serious peril as a result … just look at the Freemen on the land blindly following a fatal argument, like lemmings on the path to financial ruin.