Mortgage Securitisation - Preferred

[atwozee]

Assignment + no notice to the borrower = equitable assignment

 

My comments merely disagree with the above statement - My interpretation of s136 of the LoP 1925 differs to yours that is all - For example – if a DCA purchases a debt from an original lender by way of absolute assignment and not just by way of equitable assignment but the debtor was not informed of this assignment – does that mean that an assignment has not taken place (or a debt has not been purchased) or does it simply mean that the assignment is ineffectual in law until such time as the notice has been served?

[Suetonius]

My comments merely disagree with the above statement - My interpretation of s136 of the LoP 1925 differs to yours that is all - For example – if a DCA purchases a debt from an original lender by way of absolute assignment and not just by way of equitable assignment but the debtor was not informed of this assignment – does that mean that an assignment has not taken place (or a debt has not been purchased) or does it simply mean that the assignment is ineffectual in law until such time as the notice has been served?

 

It can't be way of absolute assignment. Absolute assignment means absolutely everything has been assigned, including the legal right to sue.

 

The legal right to sue cannot be assigned without a notice to the borrower.

 

As the legal right to sue has not been assigned, not everything has been assigned, therefore it cannot be an absolute assignment and is an equitable assignment only

[Suetonius]

The point I am trying to make is that if a notice has not been given to the borrower, the legal right to sue cannot be assigned therefore the legal right to sue remains with the assignor (the mortgage lender)

[supersleuth]

Hi Guys,

 

Congratulations Dangermouse - your post no.686 - your powers of logic and deduction are highly astute so the only contention I would take with your post is your declaration that "I may be a bit thick" ...au contraire...Dangermouse...au contraire.

 

Suetonius declares that his contentions are "black and white" with no grey areas, so he says. Suetonius, do you have legal authority on your "black and white" declaration?

 

Yawn, yawn, Pender case 2005 and s.136 of the Law of Property Act.

 

Well Suetonius those arguments are not, in accordance with your declaration: "black and white". You will no doubt castigate me for saying so, and demand an explanation....but I will not provide you with the answer and explantation for this reason......

 

On 25 Februray 2008 my mortgage company brought proceedings for repossession. I launched a full defence. The trial on the proceedings was originally listed for a full day hearing on 4 December 2008. However, on 3rd December 2008, I received a call from the court informing me that the hearing was to be adjourned because the circuit judge had to hear an urgent family matter case.

 

The full day trial hearing was adjourned to 17 April 2009. Thus, I was heavily in preparation for the hearing tomorrow....BUT....I have again received a call from the court office saying that the hearing has to be adjourned AGAIN, why?...again, because the circuit judge apparently has to hear an urgent family matter case....so, the hearing has been adjourned to 19 May 2009.

 

Now, what'd'ya make of that?!...this trial has been adjourned twice!! WHY??...cos of urgent family matters...that have apparently come up twice....???...why keep putting off the trial...I've been raring to go..and I really am looking forward to hearing the judgement, irrespective of whether it is for or against me - it will be highly interesting.

 

As you genuine CAGgers will all be aware, the criminal solicitors and lawyers who act for these criminal lenders watch this site (hello to you Sprecher Grier and Halberstam et.al,- greetings and welcome to the site)...so as you will appreciate, I cannot add to the debate for the moment.

 

Suetonius is wrong on the facts and the law, BUT that is not a criticism, as his input is very much welcomed and has been very beneficial to developing the arguments and debate. Nonetheless, I grant Suetonius this concession: he may be INCORRECT on the facts and law, BUT he may be inadvertently correct on the outcome of the court decisions with respect to the practical reality of how our "justice" system really works (or doesn't as the case may be).

 

You see, the courts and the judiciary will bend over backwards to find for the lenders. See for example, the Wilson v First County Trust case, where the judiciary themselves actually advocated for the lender. It was not the lender that put up a defence against Mrs Wilson's argument, it was the judiciary that instigated and proferred the defensive argument for the lender. It was the judiciary that argued against Mrs Wilson. The judiciary tried their damned best to avoid giving Mrs Wilson the statutory remedy she was entitled to be granted. In the end, the court of appeal did award her the statutory remedy, but look at the lengths the judiciary went to in order to avoid giving a consumer her legal rights. In any event, the CCA s.127(3), was repealed in the CCA 2006 Act. So there you have it, ONE consumer enforced her legal rights to avail herself of the consumer protection that our democratic parliament bequeath its citizens and then once ONE consumer managed to enforce the provision - the courts had it repealed on the grounds of the LENDERS "Human" rights!!!...have you ever seen a case where (1) the judiciary have proferred and argued for a consumer against a lender or (2) a human rights argument has been proffered for a consumer?

 

My point is here, that our adversary is not just the lender - it is often also the judiciary. Fair trial??? Human Rights??? Disclosure of the documents that will PROVE the truth...that's easy, the judiciary will assist the lender in their concealment by refusing to order specific disclosure. The odds against the consumer are very high when the judiciary themselves will actually assist the lenders in their concealment of doucments that prove the TRUTH.

 

We are up against, not only the might and power of the financial instutitions, we are also up against the might and power of the courts who revere those institutions. The rule of law? - well hey, that just gets in the way sometimes when the faithful application of the rule of law favours the consumer - well then the solicitors, barristers and judges (who are all collectively the fraternity of "lawyers"), will just ignore the rule of law.

 

Oh and what about justice...oh that's another small inconvenience to them when the law demands a decision that prevails for the consumer, no just ignore justice ...just throw families out on the streets irrespective of the homeowners (or rather ex-homeowners) LEGAL RIGHTS. Our legal rights are just too easy to ignore, we are an easy touch. Mere Davids against the Golaiths.

 

Anyway, we'll have to wait until the 19th May 2009 to find out if our courts will observe and apply the RULE OF LAW or whether the lenders are ABOVE THE LAW. That is the real issue that will be resolved on 19 May 2009....assuming that there will not be yet another adjournment due to another urgent family matter.

 

Thus, Suetonius may turn out to be correct, not because his arguments are correct in fact and law but because of the practical reality for consumers is: that the courts wll ignore the facts (i.e. assist the lenders to conceal the truth by refusing specific disclosure of the relevant documents proving the transfer of legal title) and ignore the rule of law. That is why I say that the overriding issue that will be resolved is whether the rule of law is respected or whether the lenders are in fact, above the rule of law.

 

The judiciary will make the decision that they want to make and then reason BACKWARDS in order to JUSTIFY the decision they want to make. They do not reason FORWARDS, i.e. look at the law and apply the facts that then leads forward to the decision that the law demands. Do you see the subtle difference?

 

Final comment re: the JonCris and Sadbuttrue comments on the RBS article...have to say that it is: SAD BUT TRUE that...the lenders will repossess people with or without or ANY reason whatsoever and if necessary will fabricated a reason.

 

To keep this post in balance, I do recognise that there are some just and good judges out there that are impartial and independent, consequently there are pockets of justice for consumers. However, when it comes to creating a precendent that will assist all consumers, they will close ranks to support the lender. Look at the bank charges debacle and the extreme lengths consumers had to fight in order to make the courts apply the law. The banks still profitted handsomely from this unlawful activity, much more so than they have ever refunded. The defence that I have raised may create precedent to assist all borrowers (providing the rule of law prevails), on the other hand, I am mindful of the practical reality that the lenders are above the law and that the courts favour the lenders.

 

In the meantime, I'll be around, but please do understand my reasons for not contributing to the legal arguments at the moment. Will do so, when the time is right.

 

BTW has anyone else ever experienced the court cancelling a hearing date and adjourning once, let alone twice?

 

Supersleuth

[Suetonius]

I should add, this is only if s136 applies to securitisation

[Suetonius]

LOL as I said welcome back SS.. Good to see you back safe and sound

[Suetonius]

I should clarify that I was not laughing at the situation. I was laughing because I have been waiting for SS to come back and post on this thread

[Suetonius]

And

 

My black and White comments were only in relation to equitable and legal assignment.

 

It is either one or the other. Or is that statement incorrect SS ?

[atwozee]

The legal right to sue cannot be assigned without a notice to the borrower.

 

There is no constraint as to when that notice may be served.

Correct me if I am wrong here but you seem to think that an absolute assignment cannot take place until a notice has been served on the borrower/debtor.

I believe that an absolute assignment can be made but that assignment only becomes effectual in law at such a time as the notice has been served – I don’t think I can be any clearer than that.

[supersleuth]

Hi Suetonius,

 

That's a point...if s.136 applies...maybe it does, may be it doesn't. Do you know if there is any legal authority on the point?

 

Also, Dangermouse raised a good question on that point too. If, as Dangermouse has logically reasoned that s.136 is being used as a device - what are your views on the legality of the use of such a "device"?

 

I ask the questions because (irrespective of whether we agree or not), the alternative views and arguments really do assist the debate....so these questions are not a hostile challenge to you but are sincere request for your views and wise observations.

 

Supersleuth

[supersleuth]

Hi Suetonius,

 

I agree with you that the assignment is either an equitable assignment or it is a legal assignment. It is one or the other.

 

The truth is that it is a legal assignment.

 

It is the assignment of the legal title that "operates in equity" until the SPV perfects its legally assigned legal title by registering at the Land Registry. When there is the transfer of a legal title that has been transferred and assigned, the law requires that the transferee MUST register itself as the new legal owner.

 

This is where the SPV breaks the law. They do not register as the law mandates that they must do. At all times, the SPV is the legal owner that is exercising the legal powers of the legal owner, but it fails to fulfil its legal obligation to register itself as the legal owner in accordance with LRA s.27(3) and (4). Thus, all the time that it owns the legal title, but does not register, the SPV's legal title is said to "operate in equity".

 

The operating of equity on a legal title does not mean that the assignment was an equitable assignment. The operation of the court's equity jurisdiction is operating on the SPVs legal title.

 

There is one way to prove beyond all reasonable doubt whether the assignment was equitable or legal. That is to produce the sale/purchase agreement between the SPV and the lender. The lenders WILL NEVER allow those documents to be produced in court. WHY, because it will PROVE that the assingment was a transfer of the legal title and not a transfer of an equitable title.

 

As this is a factual point that is very easy to prove one way or the other - one must be sceptical of the lenders when they go to such great lengths to conceal these documents....do they want them concealed because these documents PROVE that the assingment was legal?? I can say with absolute certainty the answer is yes, I KNOW - because I have seen the actual documents. The assignment was a transfer of the legal title.

 

Even without seeing the actual documents, you can know with certainty from the Prospectus. If the prospectus states something to the effect that the SPV is entitled to register at the Land Registry, then you can know with certainty that there was a transfer of the legal title. The SPV could not be "entitled" to register at the LR unless there was a transfer of the legal title.

[Suetonius]

Regular readers will note that I tend to always add a note or a disclaimer when I refer to s136.

 

I have been doing some research over the last few weeks that I hope will show that s136 and thus the requirements of s136 do not apply.

[Last of the Mohicans]

I'm just wondering which two posts of mine in this thread the Cagbot has just seen fit to remove?

 

You better pull your drawers up on the sensorship Cagbot - from memory I havent posted in this thread for the best part of 3 weeks

[Suetonius]

Not being funny, just proving a point

 

Not really no. A notice of assignment is a legal requirement under s136 of the Law of Propert Act 1925.

 

If a legal/absolute assignment is ineffectual because a notice has not been given then it can only be an equitable assignment. It can only be one or the other, either equitable or legal/absolute..

 

It is very black and White with no grey area's

 

Suetonius declares that his contentions are "black and white" with no grey areas, so he says. Suetonius, do you have legal authority on your "black and white" declaration?

 

Well Suetonius those arguments are not, in accordance with your declaration: "black and white". You will no doubt castigate me for saying so, and demand an explanation....but I will not provide you with the answer and explantation for this reason......

 

Hi Suetonius,

 

I agree with you that the assignment is either an equitable assignment or it is a legal assignment. It is one or the other.

 

Sounds black and white to me

[uneverdid]

hi last of the mohicans, i was just wandering the same. i've just had a comment on this thread removed it would be helpful to know which one so i can be more careful what i write. i dont actually recall which comments could be offensive.

[Smarterchick]

hi last of the mohicans, i was just wandering the same. i've just had a comment on this thread removed it would be helpful to know which one so i can be more careful what i write. i dont actually recall which comments could be offensive.

 

 

Well in 35 pages and 690 posts I don't think we've even seen or sniffed a mod on these securitisations threads..so maybe they've just noticed we all exist

 

You're not a Cagger if you haven't be 'botted

 

Welcome back Supersleuth..hope you enjoyed your break and are ready for the roller coaster?

[elizabeth1]

hi last of the mohicans, i was just wandering the same. i've just had a comment on this thread removed it would be helpful to know which one so i can be more careful what i write. i dont actually recall which comments could be offensive.

 

Ha ha ha It happens to the best of us!!

 

I guess someone is "spring cleaning" again

[Suetonius]

You're not a Cagger if you haven't be 'botted

 

Sounds just a little bit painful;)

[bustthematrix]

Regular readers will note that I tend to always add a note or a disclaimer when I refer to s136.

 

I have been doing some research over the last few weeks that I hope will show that s136 and thus the requirements of s136 do not apply.

Please clarify Suetonius.

 

In your posts, you were quite definite about LoP Act 1925 s.136 and other sections you felt were relevant but especially the Notice of Assignment clause.

 

[bustthematrix]

Welcome back Super.

 

Every success on your case matey!

[bustthematrix]

I'm just wondering which two posts of mine in this thread the Cagbot has just seen fit to remove?

 

You better pull your drawers up on the sensorship Cagbot - from memory I havent posted in this thread for the best part of 3 weeks

 

Come on then, what've you got to say?

[bustthematrix]

There is one way to prove beyond all reasonable doubt whether the assignment was equitable or legal. That is to produce the sale/purchase agreement between the SPV and the lender. The lenders WILL NEVER allow those documents to be produced in court. WHY, because it will PROVE that the assingment was a transfer of the legal title and not a transfer of an equitable title.

 

As an aside, but still pertinent to this debate, can anyone think of any reason WHY the SPV would be satisfied with an equitable assignment only and not full legal title? Other than the obvious "device" to get around disclosure and tax avoidance etc.

 

By this I mean, if the Lender/SPV sale agreements were to be produced and they showed an equitable assignment (we hope not:grin:), then that would settle the matter and this would be a near perfect [problem].

[Suetonius]

Please clarify Suetonius.

 

In your posts, you were quite definite about LoP Act 1925 s.136 and other sections you felt were relevant but especially the Notice of Assignment clause.

 

 

I should add, this is only if s136 applies to securitisation

 

(*this is if s.136 of the Law of Property Act is applicable)

 

 

*Disclaimer

 

The above is based upon the assumption that s.136 is the applicable legal process

 

This whole debate boils down to a few simple legal principles.

 

What legal process was used to transfer title ?

 

If it is as per s.136 of the Law of Property Act, it does not matter what the presale documents, prospectus or even the sales agreement say.

 

Without a notice being sent to the borrower, the assignment can only ever be equitable

 

I also asked SS before she went to answer this question:

 

Here is a question, under what legal process was this sale made ?

 

If it was assignment, s.136 confirms that it cannot be legal/absolute

If it was novation, where is the new contract ?

 

116. As to Mr Page's reliance on section 136 of the Law of Property Act 1925, that too is in my judgment misplaced. He fails to distinguish between the right to sue at law for the mortgage debt and the proprietary interest created as security for its repayment. Section 136 applies only to the former.

[enoughisenough]

Forgive my stupidity but wasn't the 1925 Act repealed in full? I only ask because it was!

 

Cheers EIE. Keep the faith?

[bustthematrix]

On 25 Februray 2008 my mortgage company brought proceedings for repossession. I launched a full defence. The trial on the proceedings was originally listed for a full day hearing on 4 December 2008. However, on 3rd December 2008, I received a call from the court informing me that the hearing was to be adjourned because the circuit judge had to hear an urgent family matter case.

 

The full day trial hearing was adjourned to 17 April 2009. Thus, I was heavily in preparation for the hearing tomorrow....BUT....I have again received a call from the court office saying that the hearing has to be adjourned AGAIN, why?...again, because the circuit judge apparently has to hear an urgent family matter case....so, the hearing has been adjourned to 19 May 2009.

 

Now, what'd'ya make of that?!...this trial has been adjourned twice!!

 

BTW has anyone else ever experienced the court cancelling a hearing date and adjourning once, let alone twice?

Supersleuth

 

Hmmmmnnnn

Do court offices normally make personal phone calls?

Are adjournments normally left this late?...for the same reasons?

And are judges normally taken off repossession hearings, to attend to more urgent family matters?

Oh well, I suppose they had to at least TRY and make it sound plausible.

The question, is what are they possibly planning now.

Super, I hope you already have full copies of your defence, together with supporting docs, ready to be released on the net and elsewhere should you suddenly "disappear" without trace...

Don't under estimate these bozos.

The Matrix is a ruthless place.8-)