Mortgage Securitisation - Preferred

[scedminc]

Hi, Does anyone know much about mortgage securitisation and how to find out if your mortgage company has sold off your mortgage without you knowing?

 

I am with Preferred Mortgages and as we all know they are serviced by Capstone. Everything is done through Capstone and I mean everything except when they took me to court Capstone did everything to do with that apart from the solicitor at court said he was there for Preferred. I really think that Preferred is a front and Capstone or something actually own my mortgage. I asked Capstone recently if they own my mortgage or if Preferred do or if not have Preferred sold my mortgage to someone else but he put me on hold and said he was going off to find out. When he came back he said he thinks Preferred own it but doesnt really know too much about securitisation. I find his reply strange.

 

I'm hoping that someone can shed some light on this subject and tell me how i can find if my mortgage was sold and whether Preferred is being used as a front?

 

Thanks.

[midge61]

hi

 

Capstone really aren't a mortgage company they just collect the payments.

You will probably find that your mortgage got sold on about 3 months after you signed.

 

Supersleuth is the one who knows all about this.

Do a search of his name and you will find threads that he has posted on.

 

Very interesting stuff!

[scedminc]

I am so confused about all this securitisation and i really want to try and find out exactly how i can find out if my mortgage is with preferred or not as if not then the suspended reposession order they have against me would be invalid. They now seem to think it is ok to charge me £115 a month for arrears management fees and £25 late payment charge if i do not pay on time. Capstone have just sent me a letter saying that as my fixed period is now ending my rate is going to be 6.67% + 2.6 LIBOR so much for the interest rate cuts. Strangly the letter was signed by preffered on capstone letterhead. The other strange thing is that they didnt send it to my actual address but the both mine and my partners previous addresses so its a good job our parents still live there else we would not know about it. Am i also correct to say that i do not legally have to deal with capstone as they are an agent for preferred and can insist on only dealing with preferred. If so how would i be able to pay if i am told only to deal with capstone?

 

If possible maybe someone or supersleath could help with all this especially the securitisation as if i find out my mortgage is not with preferred then i will challenge this in court as i dont see i have anything to lose and its time something was done to these robbing idiots.

[midge61]

Hi

 

There is some good info on this thread.

 

http://www.consumeractiongroup.co.uk/forum/mortgages-secured-loans/131036-redstone-mortgages.html

[scedminc]

Thanks Midge61 I have read all of that and much more now thanks and makes interesting reading. However i still would like to know how i can get some documented evidence to prove that Preferred Mortgages do not own my mortgage therefore had no right to take me to court for possession of my property. Also i wrote to capstone about a month ago and asked to have my arrears capitalised. Sent the letter by recorded and heard nothing. Shall i apply now to have the order varied coupled with my defence of Preferred not owning my mortgage possibly if i can prove this. Also for breach of the court order for fining me for arrears management fees and late payment fees for not paying on the first of every month even after explaining to Capstone i cannot pay on this date everytime i speak to them and ask them to change it and they refuse. Should i Subject Access Request them first to see what info i can find on them. Also they have said they are taking the extra charges each month from the payments i am making and not adding them to the mortgage therefore is this breach of the court order as they are not accepting the payments as directed by the courts or could they infact use it against me as i am therefore not paying enough?

What would also happen if i refused point blank to deal with Capstone all together as they are an agent and i dont have to deal with an agent. This includes making payments as i pay by debit card and not direct debit who would i be able to pay if i cannot speak to no one from Preferred? Would it be i would not have anyway to pay through no fault of my own therefore having a free mortgage lol doubt it.

Edited January 18, 2009 by scedminc
add text

[midge61]

Hi

 

Read this thread from post18 Supersleuth explains how to find out about who owns your mortgage via the UK Listing Authority.

Spml/london Mortgage Company - The Consumer Forums

 

Read the above and then send supersleuth a pm and ask him to comment as I am not sure how you should go with this.

 

I have an agreement with Capstone to pay by the 10th of the month and have had no problem with this so they can do it.

 

Taking the arrears from your monthly payment is wrong and I think you can find more on this from the FSA website.

[supersleuth]

Copy and paste of text didn't work so I've put the information as an attachment in the post below.

Edited January 18, 2009 by supersleuth
see post for details

[supersleuth]

Hi Scedminc

 

I gather that you would like to know more about the defences that can be asserted against the lenders that have securitised mortgages and how to get the evidence to show that the Claimant who brings a repossession claim against a Defendant has no legal right or standing to bring the claim.

 

I've attached here a note on the subject for you to consider which may be of interest. It's a tough job as a mere David against these Goliath's but if we are to have justice, the facts have to be revealed and the rule of law has to be applied. I know that to achieve both these objectives are like climbing everest, but if the injustice perpetrated against the borrowers is to ever stop, then it's up to us the borrowers to assert the rule of law. As the maxim goes: "injustice starts where mystery begins", therefore to get justice we need to unravel the mystery and illuminate the facts.

 

Have a read of the attached and if you do go forward with finding out the facts, I'll do what I can to help with understanding the prospectus.

 

Good luck

Supersleuth

CAG post JAN2009.doc

[midge61]

Hi supersleuth

 

Thanks for popping by.

 

Can I just ask something. If you go and get the prospectus from the UK Listing Authority how is your mortgage identified? Is it by name or by address?

[supersleuth]

Hi Midge,

 

One way to identify the securitisation on which your mortgage was securitised without the help of the purported mortgage lender is to use the date. The securitisation of you mortgage will usually be securitisation that was registered with the UK Listing Authority within 3 months of the date on which you took out your mortgage. E.g. Look for Capstone or Prefferred Mortgages filings of documents that happened within 3 months of when you took out your mortgage.... and/or look for Lehman Brothers deals. I believe that Lehman Brothers were the investment bank behind the Capstone/Preferred/SPML mortgage securitisation (but I'm not 100% sure).

 

But the best way to unequivocally and quickly identify the securitisation is to do a subject access request and in addition to the normal information requested in the SAR, make an expressed point that you require them specifically send you the name of each of the companies to whom they have passed your data information to in respect of the securitisation of your mortgage. Also specifically ask for the information regarding the transaction in which your mortgage was securitised including the name of the transaction and the companies involved in the transaction who have received your personal information.

 

Once you have a letter from them providing the information, then there can be no doubt (for the purposes of evidence) that you have the correct prospectus.

 

It is probably best to try and get the information from the SAR route because the Prospectus does not publish the names of the mortgagors nor does it give specific information about individual mortgages, therefore, it is best to get them to send the information via the SAR route and that way you have evidence that your mortgage form part of that particular securitisation.

 

Even if you don't identify the specific transaction, each of the securitisations from say Preferred Mortgages will be generally the same transaction terms from one securitisation to the other.

 

If you have already done an SAR on your 'lender', then you could send a futher letter telling them they haven't complied with the SAR because they failed to give you the specific information about the securitisation, so now your telling them you want it!!!

 

Midge, if you do send the SAR requesting the information, please do let me know how it pans out.

[scedminc]

Thanks Supersleuth for your info i will send an SAR tomorrow and report back. I Definately want to go to court with what i find even if i lose my house as i feel i may anyway in the future. What did you think about my other points raised in my PM out of interest?

[scedminc]

Just spoke to Capstone to make a payment late as i missed Decembers payment and will also be making January's payment late as well. When i called they said they have to put me through to another team. The team i was out through to was the enforcement team and they said if i do not pay by the end of this month then they may evict (i took this as they are going to evict seeing its been passed to this department). When i asked why they said because i have breached the court order. I told them they have also breached the court order but did not tell them why of course.

 

The reasons why i feel they have breach the order is because i have letter stating that they have applied charges to my account for not complying with the court order. I am correct in saying they cannot impose such charges and only a judge could.

 

I made my payment and left it at that apart from asking why they had not replied to my letter asking if they can capitilise the remaining arrears. She had a look and said they did not reply because some had spoke to me about it on the phone. I made it very clear that no one had discussed the letter and said if i write to you then i would expect a response back in writing. The lady went on to state very clearly that as a company they do not offer to capitilise under any circumstances. I had also previously asked to have the payment date changed in which they also refuse. I told the lady about it stating they should consider such reasonable requests in the FSA handbook but she still refused and said as a company they do not do this. I asked for this in writing and she said she will send confirmation out but i dont think she will. I then asked for the number to speak to someone at Preferred Mortagages but she gave me another number for Capstone and claimed this is the only number she has.

 

In light of the action it appears they may take shall i apply to the court for a vary in the order? I am worried to do this as i have read that this could be interpreted as i am unable to afford payments. As my case to the court i would be saying the following:

 

1. They have been applying charges unlawfully.

2. They have increased there charges from £45 to £115 plus a £25 late payment charge and have not informed me and i also consider them excessive.

3. They have refused to considor reasonable requests for a. payment date change and b. to capitilise the arrears.

4. I have a change in circumstances in that my partner is on maternity leave and we are now struggling to make to the additional arrears payment due to this but can afford the regular monthly payments.

5. As we are now in recession money it tight due to maternity leave etc.

6. Capstone are clearly making it very difficult to reduce such arrears due to the above.

 

Any help appreciated thanks.

Edited January 27, 2009 by scedminc
subbmitted incorrectly

[supersleuth]

Hi Scedminc,

 

It is best that you do not call these people and that you put all your communications in writing so that you have hard evidence of what was said and done. Therefore, write a letter to confirm an account of the telephone conversation that you did have (hope you made a note of the person's name), and reiterate that you want a reply in writing to both this letter and the last one that you sent.

 

With respect to the eviction threat... do argue as you state that:

 

They have been applying charges unlawfully.

 

2. They have increased there charges from £45 to £115 plus a £25 late payment charge and have not informed me

 

(and consequently, under the contract and FSA rules, those charges are not contractually payable)

 

and i also consider them excessive...but don't say you consider them excessive...just say that they are EXCESSIVE and that they are designed to exacerbate the situation such that the lender is CAUSING the alleged defaults that they are complaining of.

 

3. They have refused to considor reasonable requests for a. payment date change and b. to capitilise the arrears which is contrary to the FSA rules and therefore unreasonable and unlawful and also that they are under a lawful obligation to AVOID repossession. Repossession is supposed to be a LAST resort and on the facts, their conduct has shown that they are determined to contrive and force the repossession.

 

4. I have a change in circumstances in that my partner is on maternity leave and we are now struggling to make to the additional arrears payment due to this but can afford the regular monthly payments.

Avoid trying to get sympathy from the court on this one. They don't care about personal circumstances, only whether or not you can afford to pay the arrears. This one could play against you if you go in too hard for the sympathy...the lender may argue that by your own admission you can't afford to pay the mortgage and therefore should be repossessed.

 

5. As we are now in recession money it tight due to maternity leave etc.

Drop this argument. It won't work and will detract from your other stronger arguments above.

 

6. Capstone are clearly making it very difficult to reduce such arrears due to the above. This is the strong argument...use this as your main line together with no.'s 1, 2 and 3 above.

 

Also add in the fact that the charges are punitive by their own admission as they have written to you stating that they are "fining" you for your alleged non-compliance with the court order.

 

Ask the court to order that the excessive charges are unenforceable and that the court give an order that X amount of these charges are to be credited back to your account.

 

Go onto the FSA website - look at the FSA Handbook - read all the MCOB rules and write a list of all the rules that the lender has violated and bring that to the court with you. You must prepare to argue your cause against the lender - but remember - emotional pleas will detract from your defence - you must argue clinically and business like. The judge will only respond in your favour from breaches of the law. So show the lender for the criminal violator of laws and show the judge how they have conducted themselves to deliberately contrive to exacerbate the situation.

 

Above all, the judge must be confident that you can support the mortgage providing that the lender does not get away with exaggerating and exacerbating your account.

 

You could ask for a variation of the order, or, you could wait for the next hearing date (if they ask for an eviction order). Providing you prepare your defence properly at an eviction order hearing, you will stand a chance of varying the order anyway and defeating their request for eviction.

 

The judge after all is human, and will be unlikely to want to put a young family out on the street anyway. So whilst you may still make the point, you must lead strongly with the legal reasons why the judge should not make the order that the lender seeks.

 

Good luck

[scedminc]

Thanks very much as always for your help. If i am not applying for a variation of the order and just wish to complain against the lender do i have to pay a fee? Am i also correct to say that if i ask capstone for a contact number for preferred who my mortgage is allegedly with are they obliged to provide details as surely i am not obliged to deal with these idiots as they are a third party?

[supersleuth]

Good point:

 

So another line of argument is to tell the court that they should not have any order against you whatsoever, because you are under contract with ABC Ltd, and therefore, they have no entitlement against you for any order for any alleged breach of contract.

 

If they then say, oh but we were assigned the contract, then you must tell the court that there is no evidence before the court of their alleged assignment. I've written alot of posts on this subject, so have a look at my other posts.

 

Be strong and fight the fight

Supersleuth

[supersleuth]

And finally, with respect to your question about paying a fee to complain about the lender, the answer is NO.

 

Why do you belive you may have to pay a fee to complain about their conduct? If it's because the lender has told you they will charge a fee for your complaint then that really is the last straw. Get it in writing and take that to court too!!

 

Opps, may have misread your question: if you apply to the court for a variation of the court order, then YES, the court may charge you a fee.

 

Supersleuth

Edited January 27, 2009 by supersleuth
Correction to answer

[scedminc]

It is preferred that take me to court not capstone although we all know that it is not infact preferred but capstone but i have no proof of this of course. Therefore your comment about them not having a contract to take me to court would not be right as the it appears on the documents that it is preffered. IF i do not want to vary the order but to go to court and tell the judge that they have not stuck to the order will i still have to pay? Finally can i say in court that i am being obstructed by Capstone to contact my supposed lender (Preferred).

[supersleuth]

Hi Scedminc,

 

First of all, go to the Land Registry site on-line and print down your register. On that register, it will show you WHO is registered as the owner of your mortgage.

 

Then in theory, Preffered are the legal owner who can bring a claim against you BUT, Preferred must be named as the Claimant in the litigation.

 

However because of the securitisation, it may be that Preferred has sold your mortgage, but have failed to tell the Land Registry about the sale. In which case, the Land Register is wrong because it has not been updated from the time that Preferred sold your mortgage to an SPV. The owner of your mortgage is likely to be an SPV but, nobody is going to tell you (or the court) that the mortgage is actually owned by an SPV.

 

Have a look at the link that MercyBlue posted earlier on this thread to the Inland Revenue site. That link explains how the mortgages are transferred and the structures of those transfers.

 

In short, whoever owns your mortgage now (who is probably somebody that you've never heard of) is the only person who can claim against you. The rot in all this, is that the banks know that they don't have a claim against you, but because they keep it confused and concealed, they can dupe both you and the courts.

 

Search for Capstone in this forum and look for a posting by Janus and TaffyR. I recall reading her posts where she explains the real ownership of your mortgage. It is not Capstone and it is not Preferred. It is another company. Search this site for the Janus (or maybe spelt Jansus) and or the TaffyR posts.

 

Supersleuth

[supersleuth]

Hi Scedminc,

 

Have a read of this link:

 

How the Mortgage Arrears Protocol affects mortgage proceedings | The Law Gazette

 

it is an article written by a District Judge and makes comment on how the courts can refuse the lender's costs. The article cites a lot of cases that may be useful to you. You may find the cases that on British and Irish Legal Information Institute website - some of these will also be helpful to you.

 

Supersleuth

[scedminc]

Thanks Supersleuth i shall take a look at that. You say i should not say about a change in circumstance as a defence as this maybe used against me but is it reasonable to ask for the arrears to now be capitilised due to there unfair practices and the fact i am now off a fixed rate as of 1st feb with no chance of remortgage due to the current market? or is there a better way to argue i want the arrears capitalised?

[supersleuth]

Under the pre-action protocols, the lender is obliged-at-law, to have tried to come to an arrangment with you in order to avoid litigation (being that repossession is supposed to be a LAST restort). Under these pre-action protocols, the lender MUST evidence the efforts it has made to come to an arrangement (which in your case it has not).

 

Thus, use all your letters where you have tried to come to an arrangement with them (to show how reasonable you are) and use all their letters to show that they have declined every reasonable suggestion you have made.

 

Hence, you can prove that the lender has not complied with its overriding duty to the court to avoid litigation and has not complied with the pre-action protocols and has not complied with the FSA regulations.

 

Also demonstrate that they are now charging you X interest rate when the base rate is only 1.5% and therefore are exacerbating the situtation with overcharging.

 

And don't forget to specifically ask the court to make a costs order in your favour which also specifically states that the lender is NOT to add legal costs to your account on the grounds that the lender did not comply with the pre-action protocols etc.

 

You could also ask the court that in view of the lender's failure to consider your reasonable offers to settle the dispute, that the court order an adjourment to give the lender time to comply with its duty to attempt to settle without litigation.

 

If you can get the court to order an adjournment in order to negotiate a settlement, then the lender will have to properly consider your request for capitisation of the arrears. The court cannot order the capitalisation, so the best way forward is to try and get an adjournment on the grounds that the lender has not evidenced and effort to settle without litigation. Tell the judge specifically that the purpose of the adjournment is to give the lender time to properly put its mind to your offers and/or so that the lender may have time to explain why your offers are not acceptable to them.

 

Read this link to give you help on how to structure your non-compliance with pre-action protocols -an if necessary take the article to the court and show the judge!

 

How the Mortgage Arrears Protocol affects mortgage proceedings | The Law Gazette

 

Finally, it is OK to mention your family circumstances, but don't make it sound like you're too poor to afford the mortgage. The judge will be sympatic (hopefully), to a young family but the judge cannot make an order based on his moral outrage of putting a young family out on the street. You have to give the judge something that he CAN do as a matter of law so that the judge can avoid giving the lender the repossession order.

 

Good luck

Edited January 28, 2009 by supersleuth

[supersleuth]

Oh and also, do mention all their unfair and unreasonable practices. Prepare well. Be consise and make a list of all the things you want to say and show to the judge.

 

Have a bundle of all your papers ready. Number the pages so that you can just ask the judge to turn to page no. X when you want to demonstrate a point.

 

You will need 3 bundles of your papers. One for you, one for the judge and one for the lender. The CPR rules say that you must send your evidence that you intend to use to all parties (i.e. the court, and the lender) at least 3 days prior to the hearing.

 

The same goes for the lender, but in my experience they don't bother to serve you their evidence and therefore you don't get a chance to consider their documents prior to the hearing. If the lender fails to serve you with the evidence that the lender intends to use - then tell the judge that they did not comply with the rule that evidence must be served and therefore, the lender should not be allowed to use that evidence against you.

 

The judge will know this rule and it will help the judge to help you too.

 

Ive used that rule at one of my hearings and the judge adjourned for that reason alone and also gave me a wasted costs (in my favour) against my lender.

 

Supersleuth

[scedminc]

Excellent thats a perfect explaination to help and get things moving. On the original hearing when they got a suspended order they did not send me the evidence they intended to use. can i use this in court to say that the judge should not have issued the order due to this therefore the orignal order should be struck out? I have also looked for the posts you told me about with regards to Jansus but cannot find them. Do you have any further details on them or shall i contact them direct?

 

Thanks

[supersleuth]

Hi Scedminc,

 

You could try to use that argument.

 

Write a full list of all their violations of laws including the manner in which they duped the court to get the suspended possession order i.e. that they deliberatley deprived you of an opportunity to rebut their evidence (because they did not serve you) they should not now rely on the suspended possession order.

 

However, the judge may be reluctant to interfere with an order that has already been made, so just make that point and them add as an extra point to strengthen your point that they are not in privity of contract with you anyway and, on that ground they should not have a suspended possession order against you.

 

The privity of contract argument may give the opportunty for the judge to "correct" a mistake of law. That may be a more powerful legal reason for the judge to dismiss the suspended possession order. So ask the judge if he could correct the suspended possession order by dismissing the order as a mistake of law.

 

Then also make your points (as a back-up) that you would like an adjournment (for the reasons given in the earlier posts).

 

Result of hearing could therefore be: either you get the suspended order dismissed, or you could get the adjournment and then negotiate the capitisation (or worst ways, the lender prevails).

 

You have so many things you can argue now - so be very organised and state your points in a business-like manner. The court will respond to you if you are arguing things that the court can respond to. Give the judge enough legal reasons to do what you ask and then the judge may decide in your favour.

 

Thus, decide what you want to ask the judge to do and then, give him all the legal reasons why he should do it.

 

Can't stress enough that you must prepare well and don't get bogged down in emotional issues (although you can still be human!)

[scedminc]

Again thanks very much i will get on with setting out my case. If you dont mind once i have done this may i check with you what i intend to take so you may give your opinion so i dont make something look silly etc.