Mortgage Securitisation - Preferred

[Smarterchick]

I've spent some of today reading about what's going on across the pond in the States with regard to this and it's bigger than I ever dreamed. There are websites set up telling people how to hold up to these banks and what to do. Looks like there are many claims companies too bringing this to the publics notice. I've learned one or two things from these sites which either puts a hold on repo's, challenges outright the bank to show who the 'note' holder is ( I take it that means Title holder here) in court and how the Judges are throwing out repo cases if the banks can't show they own the title. There is also a lot of discussion about the banks acting as servicing agents only and the actual validity of the trusts set up to hold these bulks of mortgage packages within the securitisation tranche.

 

Fascinating stuff and it seems they are a bit ahead of us on this.

[Suetonius]

It's been very helpful to have CAGgers that argue for the lenders. Thank you Vincenta and Suetonis for your contributions.

 

Supersleuth

 

Thanks but I don't recall arguing for the lenders.

 

My posts have been purely in relation to the judgements made in the Paragon case (2005 not 2003)

 

As it would appear that the legislative points raised by Carmel Butler in her submission are similar to the points of that particular case.

 

i.e

 

LPA 1925 s.33 & s.34

LOP 1925 s.114, s.87 (1), s.136

LRA 1925 s.34 (1) s.33 s.27

LRA 2002

 

 

The case also refers to the involvement of a SPV in the legal process.

 

It is important to note that these are not comments or recommendations by people within the financial industry but judgements of 3 Lord Justices.

 

Personally, I think instead of putting this case to one side, people should learn from it and look at ways to overcome the judgements made.

 

After all would a lower Court rule that these judgements are incorrect ?

 

I wonder what Carmel Butler would make of this thread. Then again going by her high power and successful career history, I very much doubt she would ever have had the need for a mortgage with Capstone/Preferred/SPML/London Mortgage etc..

[Suetonius]

I've spent some of today reading about what's going on across the pond in the States with regard to this and it's bigger than I ever dreamed. There are websites set up telling people how to hold up to these banks and what to do. Looks like there are many claims companies too bringing this to the publics notice. I've learned one or two things from these sites which either puts a hold on repo's, challenges outright the bank to show who the 'note' holder is ( I take it that means Title holder here) in court and how the Judges are throwing out repo cases if the banks can't show they own the title. There is also a lot of discussion about the banks acting as servicing agents only and the actual validity of the trusts set up to hold these bulks of mortgage packages within the securitisation tranche.

 

Fascinating stuff and it seems they are a bit ahead of us on this.

 

Yes it really is

[bustthematrix]

...

Fascinating stuff and it seems they are a bit ahead of us on this.

 

Certainly seems they often are!

I say, where there's a will, there's a way. I have a sneaky feeling some good news is going to break out on here soon....

[midge61]

Hi

 

I don't suppose anyone has come across any news on the sale of Capstones have they.

 

There was a report that the final bids had to be made by 31st Jan but I can't find any more on it.

 

If anyone comes across any reports on it could you please post them. Thanks

[kegi]

midge

I have been sworn to secrecy ?but I am told the gov came up with the highest bid.............only joking sorry:D

 

kegi

ps not heard anything really....

[Last of the Mohicans]

midge

I have been sworn to secrecy ?but I am told the gov came up with the highest bid.............only joking sorry:D

 

(snigger)

[supersleuth]

Thanks but I don't recall arguing for the lenders.

 

My posts have been purely in relation to the judgements made in the Paragon case (2005 not 2003)

 

As it would appear that the legislative points raised by Carmel Butler in her submission are similar to the points of that particular case.

 

i.e

 

LPA 1925 s.33 & s.34

LOP 1925 s.114, s.87 (1), s.136

LRA 1925 s.34 (1) s.33 s.27

LRA 2002

 

 

The case also refers to the involvement of a SPV in the legal process.

 

It is important to note that these are not comments or recommendations by people within the financial industry but judgements of 3 Lord Justices.

 

Personally, I think instead of putting this case to one side, people should learn from it and look at ways to overcome the judgements made.

 

After all would a lower Court rule that these judgements are incorrect ?

 

I wonder what Carmel Butler would make of this thread. Then again going by her high power and successful career history, I very much doubt she would ever have had the need for a mortgage with Capstone/Preferred/SPML/London Mortgage etc..

 

Hi Suetonis,

 

You've done some excellent posts on this subject and it is correct to identify the hurdles that the lenders will put up against us so that we can prepare to rebut their contentions. The answer to this hurdle lies in your own signature -

 

non in legendo sed in intelligendo legis consistunt

 

- the laws depend not on being read, but on being understood

For the the time being, this may seem to be a cryptic answer to the points you have correctly understood and identified- but have you considered the possibility that there may be an answer to this hurdle?

Edited March 27, 2009 by supersleuth

[Suetonius]

The answer to this hurdle lies in your own signature -

 

non in legendo sed in intelligendo legis consistunt

 

- the laws depend not on being read, but on being understood

 

For the the time being, this may seem to be a cryptic answer to the points you have correctly understood and identified- but have you considered the possibility that there may be an answer to this hurdle?

 

My signature was chosen in jest, I do not consider that anyone really understands the law. Most areas of law and for that matter legislation (CCA 1974 is a clear example) are widely open to interpretation. With regard to the CCA, even Goode and Bennion disagree about the implications of the act, for example multiple agreements.

 

I personally consider that the law is continually evolving and as it evolves its implications change. Therefore, I do not consider it is truely possible for anyone to really say they understand law.

 

Because I personally consider that the law continues to evolve the answer to your question is yes, I do consider the possibility.

 

However, I consider that legal arguments should be treated like a game of chess. Yes your moves (legal arguments) are important, you just have to remember that your opponents moves (legal arguments) are just as equally important. Otherwise you will be in checkmate before you bat an eyelid.

 

Anticipate their move (argument) and be prepared to react and overcome.

Edited March 27, 2009 by Suetonius

[JonCris]

To add to the philosophical debate (& because I've had a nice little drinky poo) I was always taught the common law since Edward was & always will be a moveable feast

[Suetonius]

I've had a nice little drinky poo)

 

That is an excellent idea.. I think I will join you..

[JonCris]

Incidentally as your into dead languages do you know where Cae Urfa is:p

[Suetonius]

Incidentally as your into dead languages do you know where Cae Urfa is:p

 

It is north of the Watford Gap, if you see Hadrian's Wall, you have gone to far

[JonCris]

Caer Urfa! Well done give yourself another drink

[Suetonius]

Caer Urfa! Well done give yourself another drink

why thank you kind sir

[supersleuth]

Thanks JonCris and Suetonis,

 

Quite right - a moveable feast - following the game of chess - where either side has the opportunity to checkmate the other.

 

Suetonis, your signature is a jest and again we agree. Who can understand the law when it is dependent on the interpretation of the individual judges which means, it will be couched with all their prejudices and presumptions. They can reason their judgements backwards i.e. make the decision they want to make and then find the "reasons" for that decision.

 

It's rare to find a higher court judgement where the courts have found for the consumer. The Wilson v First Trust Case was one very rare example, and yet, when you read that judgement - just look at the contortions and desperate attempts the judges went through in order to try to find a reason to find for the lender.

 

The lender wasn't even at the hearings (they'd dropped out long before it got to the higher courts) and it was the judiciary themselves that initiated (and argued) a Human Rights argument for the lender!!! Have you ever come across a case where the judge initiates and argues a case for the borrower??? Never. Poor old lender having its Human Rights broken???!!!...as Jon Cris has already pointed out, in the rare cases where it goes against the lender, then they just change the law and accordingly, the CCA s.127(3) was repealed following the Wilson case.

 

So we are not just up against the lenders, we're up against the whole judiciary and the hm court service too!!

 

Nonetheless, it is the "justice" system that we've got and we've still got to try. Occassionally, where there's enough public momentum, the consumer breaks through despite the odds - e.g. the success on this site re the banking charges...likewise...this site may just create the momentum that's needed to break through with the repossession scandal.

 

One of us may just break through...we've all got to keep putting the pressure on to make them follow their own laws even when the law is on the side of the consumer!...that's how consumers broke through the banking charges robbery and the mortgage lender's robbery is even bigger!

 

Pender 2005 at first sight appears to be a slam dunk for the lenders, but as the law is a game of chess and a moveable feast, there's opportunities for both sides.

 

Suetonius, have you spotted any opportunities for the consumer in the Pender 2005 case?...oh, and I dpn't know where Caer Urfa is...but I'll join you in a drink to that anyway...

Edited March 28, 2009 by supersleuth

[foolishgirl]

...oh, and I dpn't know where Caer Urfa is...but I'll join you in a drink to that anyway...

 

Think you'd have to wear a Roman helmet to drink with Suetonius, ss - it's near Hadrians Wall, South Shields if you're a Geordie in the know

 

Anyway why has CAG suddenly gone all Latin? It's dead & I thought it was just about buried, what's with the resurrection? Is this your fault Suetonius?

[Smarterchick]

Think you'd have to wear a Roman helmet to drink with Suetonius, ss - it's near Hadrians Wall, South Shields if you're a Geordie in the know

 

Anyway why has CAG suddenly gone all Latin? It's dead & I thought it was just about buried, what's with the resurrection? Is this your fault Suetonius?

 

 

Foolishgirl, you've been around this forum long enough to know there's plenty of dead stuff all around us

[foolishgirl]

I hope you're not referring to moi, smarterchick!!

[Suetonius]

Suetonius, have you spotted any opportunities for the consumer in the Pender 2005 case?

 

Looking at the case, I would start by looking very closely at the Land Registration Act 2002. I would say this because, at the time of pender, compared to the LOP etc, the LRA 2002 was a relatively new piece of legisation. The implications had not been truely considered.

 

I would also say this because it is hardly mentioned within pender, so by basing any arguments on the LRA 2002, you are diverting arguments away from the problems caused by pender.

 

I would also recommend looking for any cases involving the

 

LRA 2002

SPV

Securities

 

to see if there are any useful judgements.

 

I would also suggest taking a very close look at the MBNA and Cap1 cases in relation to securities to see if anything could be of benefit. They may establish what a credit sells/transfers to an SPV..

[Suetonius]

Is this your fault Suetonius?

 

[the main man]

For reference;

 

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

 

CAP1

Capital One Bank (Europe) Plc v Revenue and Customs [2005] UKVAT V19238 (9 September 2005)

[Suetonius]

The reason I consider that the Cap1 case needs to be looked at closely, especially when basing any conclusions on events over the pond. In her submission Carmel Butler states:

 

 

"There are no bad debts on the banks books. And if there is any bad debt, the amount is de minimis. A primary purpose of a securitisation is: to remove the credit risk from the bank’s books. The bank, under a ‘true sale’ will sell all its rights and title in the mortgages to the SPV and the SPV will in return pay the bank cash for the mortgage assets."

 

 

However the Cap1 case states:

 

 

"Two of the exceptions are the consequence of US requirements. The first, which the Appellant contends is reflected in substance and in form in the structure which has been achieved, is that the assignment must be a true sale; it may not be an assignment by way of security if US accounting standards are to be respected (necessary because COBE is a wholly-owned subsidiary of a US corporation which is subject to US standards). No such requirement is imposed by UK accounting standards, nor by the FSA"

 

This appear to suggest that in the US securitisation can only take place under a true sale. However, this does not appear to always be the case here in the UK. Therefore, it would be paramount to establish:

 

a) has securitisation taken place

b) was it under a true sale

Edited March 29, 2009 by Suetonius

[Suetonius]

 

This appear to suggest that in the US securitisation can only take place under a true sale. However, this does not appear to always be the case here in the UK. Therefore, it would be paramount to establish

 

 

This view would appear to be supported by HM Revenue & Customs (well at least in relation to credit card debt securitisation)

Guidance for specific trade sectors: Finance: Securitisation arrangements

 

"The credit card company transfers the beneficial interest (not the legal interest) in the receivables on a block of accounts to the trust."

 

AND

 

"The credit card customer is not informed of these arrangements and the contract between the company and the cardholder is unchanged (i.e. there is no novation of the contract). This means that the exempt supply is still between the credit card company and the cardholder.

 

This was confirmed by the Tribunal in Capital One Bank (Europe) Plc (COBE) [VTD19238] and the High Court in MBNA Europe Bank Ltd."

[bustthematrix]

So we are not just up against the lenders, we're up against the whole judiciary and the hm court service too!!

...

 

Does anyone know WHY this is? Have you done any research on the history of the inns of court, the UK judiciary, freemasonry and international banking interests?

If you REALLY want to know why the judiciary almost always side with the lenders, google and research the above related topics!

I'll admit it's a slippery slope and once you start down this road you won't want to try or do anything 'cos it's all rigged' but if we can use the tools of 'the game', their own game, then there is hope.

They're smart, cunning and greedy, and fortunately for justice it's the greed that helps them to slip up. Somewhere in there, there'll be an angle we can exploit - just like the 'produce the note' strategy in the US.