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9. I have so far described in deliberately neutral terms the securitisation scheme as a process which involved the deployment by MBNA of receivables payable by its credit card holder customers for the purpose of raising working capital. A central question for the purposes of output issue 1 is the proper characterisation of the method by which that deployment was achieved, for the purpose of deciding whether it constituted a series of supplies for VAT purposes. In the barest outline, the Commissioners and both Tribunals concluded that the method did not constitute a supply, but amounted to no more than the granting of security for a loan. By contrast, the taxpayers in both cases contended, and MBNA contends on this appeal, that the method constituted a true sale of those debts

49 An inevitable consequence to these two requirements is that the Receivables must not be assigned by the Bank, in any sense by way of security. If they were, then this would firstly expose the ultimate lender (who does rely upon the Receivables as security) to adverse consequences arising from the insolvency of the Bank (at least to a much greater degree than would arise merely from a sale of the Receivables by the Bank), and it would also imply some obligation to pay on the part of the Bank. Furthermore, the Tribunal found that there is a regulatory ban on banks issuing floating charges on their book debts or other property, due to the consequences of the exposure of the Bank and its assets to the appointment of receivers. For these reasons, the designers of securitisation schemes of the type under review go to great lengths to structure the arrangements so as to avoid the assignment of Receivables by the Bank having the character of assignments by way of security. The assignments are not registered pursuant to Section 395 of the Companies Act 1985, and they are supported by categorical opinions from the solicitors responsible for their design and implementation to the effect that they constitute "true sales" rather than assignment by way of security .

Tam Wing Chuen -v- Bank of Credit and Commerce Hong Kong Ltd [1996] 2 BCLC 69

 

1996

PC

Lord Mustill Commonwealth,

 

Lord Mustill discussed the need to construe a contract contra preferentem: "the basis of the contra proferentem principle is that the person who puts forward the wording of a proposed agreement may be assumed to have looked after his own interests, so that if words leave room for doubt about whether he is intended to have a particular benefit there is reason to suppose that he is not."

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The assignments are not registered pursuant to Section 395 of the Companies Act 1985

i am not sure about this vulture can you explain the registration proccess,i have an assignment restitered against my property by a bank and it has been their since 1992,i have repeatedly asked that if they wish then prosecute me or i consider the contract null and viod,i have not heard from this bank since 1993 ,until some weeks ago when in hospital and the bank sent a reminder that they are relying on this assignment and they are continuing with intrest charges....so i am assuming that charges now would be about 40,000 for an 11,000 debt to my now bankrupt company but assignment is still in my name and on my property

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

 

 

 

Advice & opinions given by patrickq1 are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional

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Sorry Partick1 if I missed something, are you saying the £11,000 was a company (Ltd?) loan secured by a charge on your personal property, but your company went into liquidation ( I believe people go bankrupt, Ltd companies go into liquidation) Just trying to get a grip on this 'assignment' as you refer to it.

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apoligies you are corect andrew my company went into liquidation i was left no choice due to the bank....long story but still going on been worrying over this one since 1993 ,

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

 

 

 

Advice & opinions given by patrickq1 are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional

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only real problem they have is they terminated the loan before the date due and also they admitted libel

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

 

 

 

Advice & opinions given by patrickq1 are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional

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i am hoping that is the case ed i did instruct them in dec 93 that i would give them ten days to begin action against me otherwise i would consider the case null and void,and the letter i got some three weeks ago was the first comunication since dec 93 ,i certainly have not contacted them ,i think they are afraid since they admited libel in writing and that the libel was a more serious matter ,also since that time the assistant manager was fired the manager moved that week to another branch and my solicitor was struck off ,apparently he was in cahoots with them at the time..it gets worse lol but i can see the funny side of it now it was like a carry on film but their tactics were so dirty i then knew i was dealing with something beyond me,them days we at the old bank action group had no idea concerning law and business ,i still have no idea but i am biding my time when i am fit and healthy i will start this case,then i will need all the help i can get....thanks to all the caggers and i think we all know just how lucky we all are now we can converse on here and offer some advice ,my case will undoubtably come to a head soon ,then my nightmares will start all over again...

patrickq1

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

 

 

 

Advice & opinions given by patrickq1 are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional

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The assignments are not registered pursuant to Section 395 of the Companies Act 1985

i am not sure about this vulture can you explain the registration proccess,i have an assignment restitered against my property by a bank and it has been their since 1992,i have repeatedly asked that if they wish then prosecute me or i consider the contract null and viod,i have not heard from this bank since 1993 ,until some weeks ago when in hospital and the bank sent a reminder that they are relying on this assignment and they are continuing with intrest charges....so i am assuming that charges now would be about 40,000 for an 11,000 debt to my now bankrupt company but assignment is still in my name and on my property

 

 

the references to various types of "asignment" above refer to securisation of credit card accounts

 

the link to the source is here

 

MBNA Europe Bank Ltd v HM Revenue & Customs [2006] EWHC 2326 (Ch) (22 September 2006)

 

the original question asked was does the cc act 1974 override the companies act 1985.... asking the question should the assignments have been registered ?

 

---------

"The assignments are not registered pursuant to Section 395 of the Companies Act 1985, and they are supported by categorical opinions from the solicitors responsible for their design and implementation to the effect that they constitute "true sales" rather than assignment by way of security ."

Tam Wing Chuen -v- Bank of Credit and Commerce Hong Kong Ltd [1996] 2 BCLC 69

 

1996

PC

Lord Mustill Commonwealth,

 

Lord Mustill discussed the need to construe a contract contra preferentem: "the basis of the contra proferentem principle is that the person who puts forward the wording of a proposed agreement may be assumed to have looked after his own interests, so that if words leave room for doubt about whether he is intended to have a particular benefit there is reason to suppose that he is not."

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This might be a daft question given the points made above, but in lay womans terms if anyone can make out where I'm coming from can you explain this please:

 

MBNA give me a card and I take say £1000 in spending on it.

 

MBNA raise more cash for lending to others by ' securing' my £1000 on money they borrow from another bank - the securitisation of the debt then makes it a 'sale' to the a.n.other bank in accordance with the previous post.

 

If that is deemed a 'sale', under what process thereafter can they then 'assign' (sell) the debt to Cabot or a DCA giving the DCA the rights to the debt?

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Tam Wing Chuen -v- Bank of Credit and Commerce Hong Kong Ltd [1996] 2 BCLC 69

 

1996

PC

Lord Mustill Commonwealth,

 

Lord Mustill discussed the need to construe a contract contra preferentem: "the basis of the contra proferentem principle is that the person who puts forward the wording of a proposed agreement may be assumed to have looked after his own interests, so that if words leave room for doubt about whether he is intended to have a particular benefit there is reason to suppose that he is not."

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ah the old s136 LoP argument, i love it when they try that rubbish, its easy to blow that one out of the water and leave em squirming

 

Oh yeah of little memory re this lol -- reminder of one of my old threads - read post#1 , explains it all

http://www.consumeractiongroup.co.uk/forum/cabot/115403-cabots-methods-buying-debts.html

Just hate every DCA out there

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Developments In Canadian Securitization - 1995 by Martin Fingerhut

 

whilst reading this "known link" discovered the little gem below

==================

ASSIGNMENT RESTRICTIONS

A securitization usually involves the acquisition of receivables. Receivables are often governed by the terms of a written contract. Many commercial contracts contain provisions which may restrict the assignment of the receivables owing under them. Alternatively, the assignment of receivables owing by governments or regulated industries may be restricted by statute. The existence of such restrictions should be dealt with in eligibility criteria or seller representations. Such matters should also be covered by appropriate due diligence and legal opinions. A number of recent cases have highlighted the importance of this issue.

 

================

In 1984, the Federal Court of Appeal in the Irving Oil4 case had to deal with a contract which provided that it could not be assigned without written consent. In a 2:1 split decision, the Court interpreted the restriction as not precluding the assignment of the proceeds of the contract as opposed to the contract as a whole. However, in 1993, the English House of Lords took the opposite approach. Linden Gardens 5decided that a provision which prohibits the assignment of a contract also precludes the assignment of any monies owing under it. The case is not binding in Canada; however, it will be very persuasive.

The Linden Gardens case also settled a second related point. There had been some question as to the effect of a provision which prohibits an assignment. Is the provision effective against someone who was not aware of it? Could an assignment which violated the prohibition be effective, even though it amounted to a breach of the contract? It is now clear that an assignment which takes place in contravention of a clear anti-assignment provision has no effect, and does not transfer the receivable to the assignee

 

==============

 

5 Linden Gardens Trust Ltd. v. Lenesta Sludge Disposals Ltd., [1993] 3 All E.R.

Tam Wing Chuen -v- Bank of Credit and Commerce Hong Kong Ltd [1996] 2 BCLC 69

 

1996

PC

Lord Mustill Commonwealth,

 

Lord Mustill discussed the need to construe a contract contra preferentem: "the basis of the contra proferentem principle is that the person who puts forward the wording of a proposed agreement may be assumed to have looked after his own interests, so that if words leave room for doubt about whether he is intended to have a particular benefit there is reason to suppose that he is not."

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Subscribing to this interesting thread

 

Dave

** We would not seek a battle as we are, yet as we are, we say we will not shun it. (Henry V) **

 

see you stand like greyhounds in the slips,

Straining upon the start. The game's afoot:

Follow your spirit; and, upon this charge

Cry 'God for Harry! England and Saint George!'

:D If you think I have helped, informed, or amused you do the clickey scaley thing !! :D

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http://www.iclg.co.uk/index.php?area=4&country_results=1&kh_publications_id=36&chapters_id=830

 

 

the above link states the situation from "a viewpoint" under english and welsh law just click away on sections 1 to 9

 

-----------------

 

however to see the opinions under scottish and jersey law ( or any other countries law)

 

visit the link below

 

 

 

http://www.iclg.co.uk/index.php?area=4&kh_publications_id=36#

  • Haha 1

Tam Wing Chuen -v- Bank of Credit and Commerce Hong Kong Ltd [1996] 2 BCLC 69

 

1996

PC

Lord Mustill Commonwealth,

 

Lord Mustill discussed the need to construe a contract contra preferentem: "the basis of the contra proferentem principle is that the person who puts forward the wording of a proposed agreement may be assumed to have looked after his own interests, so that if words leave room for doubt about whether he is intended to have a particular benefit there is reason to suppose that he is not."

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