Mortgage Securitisation - Preferred

[mercyblue]

"Such rights may include the right of

a Borrower to redeem its Loan and related Collateral Security by repaying his Loan directly to the relevant

Legal Titleholder. These rights may result in the Issuer receiving less monies than anticipated from the Loans."

 

So as spml purport to be the legal titleholder and shows as such does this mean that when I (hopefully!) pay mine off I can pay it to spml direct i.e miss out the spv. Whether or not it would get to them of course I would never know but would be nice to think it didnt

[Suetonius]

So as spml purport to be the legal titleholder and shows as such does this mean that when I (hopefully!) pay mine off I can pay it to spml direct i.e miss out the spv.

 

Hello Mercy, when you pay your mortgage, as far as you are concerned the SPV does not exist and you don't pay them directly one single penny.

 

All the payments you make are made to spml, then it is for spml to fulfil any contractual obligations to the SPV directly.

[Suetonius]

On a seperate note, I am in possession of a presale report for a Residential Mortgage Backed Security (RMBS), which was intended for potential investors. This presale report confirms in black and white that the SPV, objectives were to "aquire the equitable title to a mortgage portfolio, to issue the notes"

 

I have added it to this post. The section I am refering to, is at the bottom of page three.

 

It does raise the question, if as you say the legal title passes to the SPV, then why would this report say the SPV's objectives were to aquire the equitable title.

 

 

I also have another one for Abbey, which would also appear to confirm that the original mortgage provider retains legal title.

 

http://www.consumeractiongroup.co.uk/forum/mortgages-secured-loans/189177-smarterchick-securitisations-2.html#post2081479

[supersleuth]

Suetonius,

 

So you are saying that a pre-sale report to investors, which is a private and confidential document, trumps a publicly filed prospectus at the UK Listing Authority or at the Irish Stock Exchange, which prospectuses are actual details the actual transaction....and that on the basis of your pre-sale report to investors we should all shut up and hand over our keys to our lenders. Correct?

 

So if you are so right, and let's face it, you've already admitted that YOU DON'T KNOW, nonetheless, we should all just give up and go home i.e. to our little spot on the street. Best we all get cardboard boxes eh.

 

Perhaps you would care to comment on Midge's post from the Prospectus and tell us why you think that confirms there has been an assignment of the equitable interest.

[Suetonius]

Suetonius,

 

So you are saying that a pre-sale report to investors, which is a private and confidential document, trumps a publicly filed prospectus at the UK Listing Authority or at the Irish Stock Exchange, which prospectuses are actual details the actual transaction....and that on the basis of your pre-sale report to investors we should all shut up and hand over our keys to our lenders. Correct? .

 

Did I say that ? Erm don't think so.

 

I have not read the the information posted by Midge, I must have missed that I will go and take a little looksee

 

So if you are so right, and let's face it, you've already admitted that YOU DON'T KNOW, nonetheless, we should all just give up and go home i.e. to our little spot on the street. Best we all get cardboard boxes eh.

 

Perhaps you would care to comment on Midge's post from the Prospectus and tell us why you think that confirms there has been an assignment of the equitable interest.

 

I freely admit that I don't know, I also don't see that as a bad thing. Do you really think that this matter is really so cut and dry ?

 

We can all learn from each other. I consider that there has been an assignment of the equitable interest because of s.136 of the LOP.

 

I don't think you can hope that a judge will ignore the legal requirements for absolute assignment.

 

Furthermore, I am not suggesting that people pack up, what I am doing is raising points that will most likely also be raised in Court. Would it not be best to be prepared to defend these points, rather than just day to the judge I know.

 

With the upmost respect SS, I am not making this personal against you so please don't take it personally. I am just responding by providing supporting evidence in the form of legislation, case law and other documentation. I am sorry if that is in some way wrong.

[Suetonius]

Suetonius,

 

So you are saying that a pre-sale report to investors, which is a private and confidential document, trumps a publicly filed prospectus at the UK Listing Authority or at the Irish Stock Exchange, which prospectuses are actual details the actual transaction....and that on the basis of your pre-sale report to investors we should all shut up and hand over our keys to our lenders. Correct?

 

What I actually said was:

 

 

On a seperate note, I am in possession of a presale report for a Residential Mortgage Backed Security (RMBS), which was intended for potential investors. This presale report confirms in black and white that the SPV, objectives were to "aquire the equitable title to a mortgage portfolio, to issue the notes"

 

I have added it to this post. The section I am refering to, is at the bottom of page three.

 

It does raise the question, if as you say the legal title passes to the SPV, then why would this report say the SPV's objectives were to aquire the equitable title.

 

I personally consider the above question to be valid.

[Suetonius]

Could someone please do me a favour and post a link to Midges post or tell me the post number.

 

Thank you

[supersleuth]

Suetonius,

 

You have raised a question regarding whether there was an equitable or a legal assignment - that's good. You cite as evidence some random pre-sale report for "potential" investors on a deal that may or may not have occurred.

 

But the statement from the Prospectus that Midge posted is an actual transaction that has been publicly declared and filed at the Irish Stock Exchange - so, the question is:

 

What is in that publicly declared and filed Prospectus that is directly on point in relation to the SPML securitisations that cause you to believe that the assignment was merely an equitable assignment.

 

Your analysis of an alleged equitable assignment in relation to SPML's SPV is called for. Can you comment directly on the point of the SPML sale and the SPV's securitisation with reference to Midge's post?

[Smarterchick]

I just want to say thank you to both Supersleuth and Suetonius for bringing these issues to our attention and debating this. I can detect this could challenge the patience of a saint, but without the combined questions and answer bantering you two are doing this would not have progressed like this.

 

Takes me back to the early days of bank charges where opinions, whilst divided drew out the truth and aided people going into court-rooms - we have to remember everyone on this forum apart from the odd troll (who can be spotted a mile off and dispensed with) are here to learn from those with specific knowledge or expertise who come here..so please don't anyone think these arguments are personal in any way...this is the route to success for so many if the detail can be thrashed, challenged and drawn out. The researchers amongst us provide the fodder for people like Superslueth and Suetonius to pull apart and long may they reign.

 

Thank you - both of you. Keep it up.

 

SC

[supersleuth]

Hi Suetonius,

 

See posts no. 334 and 337

[Suetonius]

Hi Suetonius,

 

See posts no. 334 and 337

 

Thanks;)

[foolishgirl]

I just want to say thank you to both Supersleuth and Suetonius for bringing these issues to our attention and debating this. I can detect this could challenge the patience of a saint, but without the combined questions and answer bantering you two are doing this would not have progressed like this.

 

..so please don't anyone think these arguments are personal in any way...this is the route to success for so many if the detail can be thrashed, challenged and drawn out.

 

Thank you - both of you. Keep it up.

 

SC

 

Well said, smarterchick.

 

I, for one, respect the opionions of both of you & you have both brought valued addtions to CAG threads.

 

So please don't fall out on this issue guys, it's so important to work together even if you differ on your thoughts as to how each clause etc. should be interpreted.

[Suetonius]

Your analysis of an alleged equitable assignment in relation to SPML's SPV is called for. Can you comment directly on the point of the SPML sale and the SPV's securitisation with reference to Midge's post?

 

As for an analysis, even for a layman like my good self, it would appear to be quite straight forward. A notice to the debtor is one of the formalities that must be completed to establish a legal / absolute assignment.

 

However, I will respond in relation to the prospectus

 

 

As previously posted by Midge61

 

Hi

 

The following is page 34 of my prospectus............

 

Title of the Issuer

 

Legal title to the Loans and their related Collateral Security will be transferred to the Issuer only in the limited circumstances described under "Title to the Mortgage Pool" below. Prior to the Issuer or the

Trustee obtaining legal title to the Loans and their related Collateral Security in accordance with the terms of the Mortgage Sale Agreement, a bona fide purchaser from SPML or SPPL (which remain the legal owners of the relevant Loans and Collateral Security),

 

This would also appear to imply the legal title remains with SPML or SPPL.

 

The actual prospectus goes onto say (and this is the important part and is also on page 34)

 

"In order for legal title to the Mortgages over registered land in England and Wales and any land in Scotland to be transferred, transfers and assignations would have to be registered or recorded at The Land Registry of England and Wales or the Registers of Scotland, as applicable, and notice would have to be given to the Borrowers."

[Suetonius]

a publicly filed prospectus at the UK Listing Authority or at the Irish Stock Exchange, which prospectuses are actual details the actual transaction

 

The actual prospectus goes onto say (and this is the important part and is also on page 34)

 

 

"In order for legal title to the Mortgages over registered land in England and Wales and any land in Scotland to be transferred, transfers and assignations would have to be registered or recorded at The Land Registry of England and Wales or the Registers of Scotland, as applicable, and notice would have to be given to the Borrowers."

 

So the prospectus, which as you say details the actual transaction, says that a notice would need to be given to borrowers.

 

The notice is required under s.136, otherwise the assignment can only be equitable

[Suetonius]

So please don't fall out on this issue guys, it's so important to work together even if you differ on your thoughts as to how each clause etc. should be interpreted.

 

lol we won't fall out.

 

I repect her opinions and I am sure she respects mine

[Suetonius]

a publicly filed prospectus at the UK Listing Authority or at the Irish Stock Exchange, which prospectuses are actual details the actual transaction.

 

The Prospectus also states:

 

Page 68

 

"The sale of the Loans and their related Collateral Security to the Issuer will take effect in equity only or, in the case of Scottish Loans, by means of declarations of trust by SPML or (as applicable) SPPL, as Originator and legal title owner of the Scottish Loans, in favour of the Issuer (such declarations of trust, together with any declaration of trust supplemental thereto, the "Scottish Trusts"), until such time as transfers and assignations of such Loans and the related Collateral Security in favour of the Issuer have been completed and, in respect of the registered or registerable titles to land, registered at The Land Registry of England and Wales or the Registers of Scotland (in the circumstances mentioned below) and notice has been served on the Borrowers."

Edited April 2, 2009 by Suetonius

[Smarterchick]

Okay, so what is the difference between the ' Prospectus' and the 'Agreement' which is drawn up between the Bank and the SPV? Is it one of the same or, like the point raised earlier, is there one which is published for the investors 'prior' to sale giving the intention of the sale and another which is the 'actual' agreement which actually differs in its terminology? mmm??

[midge61]

Here is the full prospectus. Page 9 shows the transaction structure

 

Southern Pacific Securities 05-3 plc.pdf

[Suetonius]

Okay, so what is the difference between the ' Prospectus' and the 'Agreement' which is drawn up between the Bank and the SPV? Is it one of the same or, like the point raised earlier, is there one which is published for the investors 'prior' to sale giving the intention of the sale and another which is the 'actual' agreement which actually differs in its terminology? mmm??

 

You have hit the nail on the head. I think we really need a copy of the sales agreement. Much like the sales agreement between Banks and Debt Collections Agencies, it will shed some light and hopefully clear some of the smoke;)

 

I will do some digging and see what comes up

[supersleuth]

Suetonius,

 

Also you will see that the prospectuses confirm that the SPVs legal title is said to "operate in equity". This phrase does not mean that there is a separation of equitable and legal titles, it means that during the registration gap, equity will operate on the new owner's legal title. It is the SPVs legal title that is operating in equity pending its registration at the LR.

 

The words "operating in equity" have been misconstrued to become conflated with the concept of a separation of the equitable and legal interest. Again, it is the SPVs legal title that is operating in equity and under the equitable maxim that "equity deems as done, that which ought to be done" - what ought to be done here is that the SPV register its legal interest at the LR, but the SPV has unlawfully neglected to do that, which the law requires that it do!

 

Do you see the smoke and mirrors strategy at play? - remove the smoke and you'll see just what confusions these lawyers are playing.

 

 

 

Suetonius dear Suetonis.... re your post no. 361...

 

we've already been through that one. (see quote above). "operates in equity" does not mean that there's been a transfer of the equitable interest only - what is "operating in equity" in the SPV's legal title.

 

You are asserting the precise smoke an mirrors of the lender - you may have confused the words "operating in equity" to mean that there has been a separation of legal and equitable titles and that a trust has been created.

 

An example may make the point clearer: if you sell your house today - and the new owner doesn't register at the LR as the new owner for another two months hence, would you consider that you only transferred an equitable interest in the house and that you were entitled to retain the legal title? Would you consider yourself to be a Trustee with all the attendant responisibilites of a Trustee? No, of course not...(or maybe you would). The new owner's legal title is "operating in equity" until the new owner's registration is complete. Equity would not change the fact that you sold the legal title to your house today, and allow you to assert that you retained the legal title even though the new owner is not registered as the legal owner for another 2 months. Do you get it?

 

Hmmm, Mr Suetonius...you appear to be too reluctant to admit that there has been a transfer of the legal title....but conversely it is interesting that you are very quick to state unequivocally that your pre-sales documents CONFIRMS that it's only an equitable interest that's transferred.

 

Interesting sparring with you Suetonius - look forward to your analysis on the no. 323 and 327 posts

[supersleuth]

Smarterchick,

 

The Prospectus is a statement of truth that makes representations to the investors to state the terms of the underlying transaction document. The prospectus summarises the underlying transaction documents and give an account of the pertinent terms of those document.

 

Therefore, e.g. if the Prospectus states that the SPV is entitled to be registered at LR, then you can take it that the transaction documents will also state that SPV is entitled to be registered at the LR.

 

Now it is unlikely that the SPV have lied in the Prospectus, because if there is an untruth in the prospectus, that would constitute a fraudulent misrepresentation and the Investors would sue the butt off the SPV - so, the Prospectus can be taken as a true account of the underlying transaction documents. Accordingly, the Prospectus is good evidence of the facts.

[Suetonius]

I am slightly confused.

 

You placed emphasis upon the prospectus. You asked me to

 

Suetonius,

But the statement from the Prospectus that Midge posted is an actual transaction that has been publicly declared and filed at the Irish Stock Exchange - so, the question is:

 

What is in that publicly declared and filed Prospectus that is directly on point in relation to the SPML securitisations that cause you to believe that the assignment was merely an equitable assignment.

 

Your analysis of an alleged equitable assignment in relation to SPML's SPV is called for. Can you comment directly on the point of the SPML sale and the SPV's securitisation with reference to Midge's post?

 

 

In response to you request I posted:

 

The actual prospectus goes onto say (and this is the important part and is also on page 34)

 

 

"In order for legal title to the Mortgages over registered land in England and Wales and any land in Scotland to be transferred, transfers and assignations would have to be registered or recorded at The Land Registry of England and Wales or the Registers of Scotland, as applicable, and notice would have to be given to the Borrowers."

 

The Prospectus also states:

 

Page 68

 

"The sale of the Loans and their related Collateral Security to the Issuer will take effect in equity only or, in the case of Scottish Loans, by means of declarations of trust by SPML or (as applicable) SPPL, as Originator and legal title owner of the Scottish Loans, in favour of the Issuer (such declarations of trust, together with any declaration of trust supplemental thereto, the "Scottish Trusts"), until such time as transfers and assignations of such Loans and the related Collateral Security in favour of the Issuer have been completed and, in respect of the registered or registerable titles to land, registered at The Land Registry of England and Wales or the Registers of Scotland (in the circumstances mentioned below) and notice has been served on the Borrowers."

As you know, to comply with s.136 a notice does have to been sent to the borrower. The above extracts from the prospectus that you placed emphasis upon, clearly demonstrate that no such notice has been sent.

 

I responded to you and provided the supporting extracts.

 

However, in response you post

 

Hmmm, Mr Suetonius...you appear to be too reluctant to admit that there has been a transfer of the legal title....but conversely it is interesting that you are very quick to state unequivocally that your pre-sales documents CONFIRMS that it's only an equitable interest that's transferred.

 

Interesting sparring with you Suetonius - look forward to your analysis on the no. 323 and 327 posts

 

lol, I can assure you that it is not the case that I am in anyway reluctant to admit that there has been a transfer of legal title. I thought, my previous posts (including legislation, case law and supporting documentation, include the prospectus that you placed emphasis upon) made my position very clear.

 

However, for the avoidance of doubt, I will take this opportunity make my position crystal clear to avoid any further confusion.

 

I do not consider that the legal title has been transfered.

 

I can post several prospectuses all of which mirror the previously posted prospectus in that the legal title remains with the original mortgage provider.

 

The content of the presales document (not mine, I found it on google) appears to be supported rather than contradicted by the prospectus that you have placed the emphasis upon.

 

[Suetonius]

Now it is unlikely that the SPV have lied in the Prospectus, because if there is an untruth in the prospectus, that would constitute a fraudulent misrepresentation and the Investors would sue the butt off the SPV - so, the Prospectus can be taken as a true account of the underlying transaction documents. Accordingly, the Prospectus is good evidence of the facts.

 

"The Prospectus is good evidence of the facts"

 

But the prospectus confirms that the legal title is not transferred until notice has been given to the borrower.

 

To clarify, I have posted two more.

 

 

 

 

 

[Suetonius]

Smoke and mirrors are everywhere and can be used by everyone including us.

 

However, through the smoke and mirrors, two points still remain

 

1) The implications of the judgements made in the 2005 Pender Case

2) The requirement for a notice to be sent to the debtor / borrower (as per s.136 of the LOP)

 

How do you intend to overcome these two obstacles ??

[IS IT ME?]

SS

How are you getting on with your case? its with G mac I think and after reading this all night I think I am going after them.

What you say IS right and they have lied in court or the judge just did not want to deal with it.

Looking at this clearly and standing back, would you inverse in some thing like this without any form of security??? just think on that.

I is very clear they have as you say had us over a barrel for too long and the courts have allowed it.

I have the full securitisation papers for Gmac who when they started had £700,000 debt and within 6 months had a pool of £135 Million mortgages and if you look at a lot of these company the same names keep coming up.