Mortgage Securitisation - Preferred

[Last of the Mohicans]

Just been doing some research on a website I have access to called Creditsafe and it appears that Preferred has a CCJ against them for £279 dated 15/01/09.

 

I have the case number as well and the court name so is there anyway to be able to see the case in full?

 

Ring the Court, give em the case number and ask for a copy of the Judgement and PoCs - I believe I'm right in saying they are public property and available to anyone, including journalists.

Not that I'm inferrring that you should say you're a journalist if you're not of course...

[scedminc]

Ring the Court, give em the case number and ask for a copy of the Judgement and PoCs - I believe I'm right in saying they are public property and available to anyone, including journalists.

Not that I'm inferrring that you should say you're a journalist if you're not of course...

 

Thanks for that I thought there maybe some website you can do a search. I have called the court and they tell me I can write in and they will send a copy but there is a charge of £5 for the first 10 pages.

[Last of the Mohicans]

Thanks for that I thought there maybe some website you can do a search. I have called the court and they tell me I can write in and they will send a copy but there is a charge of £5 for the first 10 pages.

 

Blimey - theres more than ten pages?! For a CCJ? LOL, thats GOT to be worth a punt to one of their borrowers

[scedminc]

Blimey - theres more than ten pages?! For a CCJ? LOL, thats GOT to be worth a punt to one of their borrowers

 

I'm going to email and ask them for a copy and see what they say. Never know they may email it for free

[bustthematrix]

You seem to expect a lot of info about the future right here and now Vincenta. Which is fine of course - If you meet someone who knows this weeks Lottery numbers, drop me a PM with thier phone number would ya?

 

Hi Mo. Just asking questions really. There's much that's being implied about taking lenders to task and it's just good to have a handle on what the end game is. For example, there's a friend of mine who had TWO sizeable credit card debts, which had both been passed to DCAs, cancelled in recent weeks. He had some information which enabled him to challenge those agreements in court such that the lender/DCA COULD NOT defend their claim against him and his wife so the judge gave them judgement cos the lenders' did not show up. He recently showed me two letters from the lenders stating he now owed them £0.00! That was the target he had in sight, he knew what he was doing and despite intimidation, won.

EIE posted earlier about some US cases which make very exciting reading - so much so that some people facing repo had the 'lender's' claim dismissed by the judge on the grounds of no proof of ownership of the debt! That does not mean they are home and dry and debt free but it does mean the lender/SPV/servicer triad have an issue with registering ownership of the mortgage and therefore collecting payments/enforcing repo. Basically means the borrower/homeowner gets to live in the property payment free until the 'triad' sort out their mess. If they never get round to doing that because of the jiggery pokery that's gone on behind the scenes then some people could end up with debt free homes.

SS, what are your thoughts on this? Can the SPVs come after borrowers assuming they register their charges properly at the LR? What about the issues of contract i.e. they may now 'own' the debt because it was 'sold' to them but is there a valid contract between the SPV and the borrower since there'll be no specific written agreement between them which the borrower has signed?

Edited March 24, 2009 by vincenta
typos

[supersleuth]

Hi Vincenta,

 

This forum is to help people with real live issues and not for speculation so if you can tell us specifically about your mortgage contract and why you believe that your contract may not be a valid contract then we can debate and discuss your particular point.

 

Let us know about your particular repossession questions in your case and which 'lender' is asserting a case against you and I'm sure you'll get loads of help from CAGgers who've been in the same boat.

 

Supersleuth

Edited March 24, 2009 by supersleuth

[bustthematrix]

Hi Vincenta,

 

This forum is to help people with real live issues and not for speculation so if you can tell us specifically about your mortgage contract and why you believe that your contract may not be a valid contract then we can debate and discuss your particular point.

 

Let us know about your particular repossession questions in your case and which 'lender' is asserting a case against you and I'm sure you'll get loads of help from CAGgers who've been in the same boat.

 

Supersleuth

Hi Ss. Straight to the point eh? I will do that soon. My understanding is that these forums are here not only for direct personal help and advice but also for discussion and information sharing - that's why I write the way I do.

 

Cheers anyway.

[Suetonius]

The Pender case is totally misunderstood. First - that court of appeal judgement concerns an appeal against a lower-court's refusal to grant a PERMISSION TO APPEAL . The judgement in the court of appeal upheld the lower-court's REFUSAL to give the Pender's permission to appeal to the court of appeal.

 

Are you 100% sure about this.

 

The original case was in 1995, followed by an unsuccessful application in 2002. I thought that the case in 2003 was in relation to the permission to appeal being declined. However, in 2004 they were allowed to appeal on a limited basis and that the 2005 case is the result of that limited allowance to appeal.

 

I only ask because of the first few words of the case and the closing comments of each Lord Justice

 

1. This is an appeal by Mr and Mrs Pender.

 

130. I would dismiss this appeal. (Lord Justice Jonathan Parker)

 

131. I agree. (Lord Justice Carnwath)

 

132. I also agree. (Lord Justice Ward)

 

From the perspective of a laymen, the subject matter of the conclusions made by Lord Justice Jonathan Parker do not appear to be limited to the merits of an appeal. 109-114 all state "In my judgement". This would appear to suggest that Lord Justice Jonathan Parker has made a judgement in relation to the merits of the points raised.

 

Whereas the 2003 case cleary states:

 

1. This is the Defendants application for permission to appeal

 

185. It follows from all of the above that the Defendants have not raised anything whether in their original case or in the later case that has any real prospect of success. I accept that I am in a position to rehear the appeal, if necessary, because of the misinterpretation of the revocation of CCR order 37 by Her Honour Judge Mayer. I refuse permission to appeal in respect of the matters argued before Her Honour Judge Mayer on matters of principle, but grant permission to appeal the application to set aside the possession order and the new points raised by the Defendants. However, they too, for the reasons set out in this Judgment have no prospect of success, so I dismiss the appeal based on these grounds also.

Edited March 24, 2009 by Suetonius

[Smarterchick]

It's a long read, but I don't think I'd like to be the one challenging this..

[Suetonius]

Consequently, the Pender case is NOT case precedent for the banks (under the doctrine of stare decisis: latin for let the decision stand, which is the basis of the case precedents).

 

Would ratio decidendi be applicable ? or am I barking up the wrong tree (wouldn't be the first time and I know it will not be the last)

 

As this is a judgement that would appear to have been passed in the Civil Division of the Court of Appeal, wouldn't this judgement subsequently apply to both the High Court and County Courts ?

Edited March 25, 2009 by Suetonius

[JonCris]

Great info..incidentally the DPA is the statute most abused by the jobs-worths who don't want to do their jobs.

 

A probate lawyer I know is constantly told by banks & other similar institutions that they cannot offer information on the estate of the deceased without the consent of the (dead) account holder because of the DPA,.

 

It has to be pointed out to them that the 'deceased' is in fact ''deceased' so obtaining their consent may prove somewhat problematic.

 

And finally it's also pointed out that there is NO protection under the DPA for someone who has shuffled off this mortal coil

[the main man]

I have posted this link before and have been looking around, it seems that Riley in the case below set up a website The National Association of Mortgage Victims.

 

I don't know if the group is still active but can we get in touch with Carol Riley and ask if she wants to add her thoughts and experiences to this thread?

 

http://www.parliament.the-stationery-office.co.uk/pa/cm200102/cmhansrd/vo011016/halltext/11016h05.htm

On Friday 28 November 1997, before His Honour Judge Rubery at Stoke-on-Trent county court, the case of City Mortgage Corporation v. Riley was concluded. Given the Minister's previous role in the Government, she will be familiar with City Mortgage Corporation and many other financial corporations that I will talk about today. It must be said that CMC is not a company with a good track record in the industry. This was a typical

case, like many that CMC had taken to court, involving repossession of a family's property. Of course, the mortgage had been secured on the property, but I am pleased to say that the judgment was not as CMC might have expected.

 

CMC argued that, although an equitable interest had been transferred to an American-based company called Greenwich International Ltd., CMC none the less had the right to enforce the debt. I am pleased to say that the court found otherwise. Mrs. Riley had done quite a bit of background work, and discovered documentary evidence showing that the legal interest, as well as the equitable interest, had been transferred to Greenwich International. The charge by CMC had never been registered because the Rileys' mortgaged property was not registered land. In accordance with section 114 of the Law of Property Act 1925, the deeds operate to transfer all rights to sue on the security to Greenwich International in America, rather than City Mortgage Corporation. The long and the short of it is that, having pursued this debt, City Mortgage Corporation was found unable to do so by the courts because it had no legal standing, and costs were awarded against CMC.

 

 

http://www.namv.org.uk/press-room-1.htm

 

The campaign against the firm has been led by Carol Riley who fought off another mortgage company when it tried to repossess her home. Her support group, the National Association of Mortgage Victims, has had 1,500 people trapped in a spiral of debt contact it for help

[Suetonius]

Great info..incidentally the DPA is the statute most abused by the jobs-worths who don't want to do their jobs.

 

Totally agree, if in doubt quote the DPA lol

[supersleuth]

Hi Vincenta,

 

I agree with your comment that the forum is for discussion and information sharing so wondered whether you would like to share some of your information to discuss.

[Smarterchick]

Quoting The Main Man here I notice in this Riley case the following:

 

"The charge by CMC had never been registered because the Rileys' mortgaged property was not registered land".

 

 

It appears to me that this registration is the critical factor in all this unless someone can tell me differently. I'll carry on using Abbey National as the example as I've been digging so deep on them, but initially Abbey show as Title holder at the Land Registry as they first provided the mortgage and therefore remain so despite the introduction of the SPV under the assigning of the mortgage through this securitisation process. Under those circumstances they retain the right to sue.

 

The Riley case states that the land was ' not registered' so one assumes CMC never registered as Title holder at the Land Registry and therefore cannot have that right...

 

Am I barking up the wrong tree here?

[supersleuth]

Hi Smarterchick

 

The law treats registered land in a different manner to unregistered land. For most of us, our land is registered land.

 

Since 1925 more and more land has become registered land and public policy is that all land will be registered (with a few exception for people like the Queen!). Therefore as time goes on the law concerning the treatment of unregistered land will become virtually immaterial.

 

The LRA 2002 now mandates, that certain dispositions of land MUST be registered i.e. the sale of the actual property and the grant or sale of mortgages MUST be registered. Therefore, the law now requires that when unregistered title is transferred or when a mortgage is granted on a unregistered property, that will trigger compulsory registration at H.M. Land Registry - hence, eventually all property will be registered property.

 

Nonetheless, the person who owns the mortgage will always have the right to sue in contract law because there is privity of contract between the mortgagor and mortgagee, or, if the mortgagee assigns the contract then the right to sue passes to the assignee (irrespective of whether the land is registered or unregistered).

 

If a mortgage was granted on unregistered property post LRA 2002, there would then be a legal issue regarding its failure to register the disposition at the LR i.e. for failure to comply with its compulsory registration requirements - however, that issue was not raised in the CMC case, probably because that case was prior to the LRA2002.

 

Supersleuth

Edited March 25, 2009 by supersleuth

[Smarterchick]

Good morning Supersleuth,

 

Thanks for that. So it is possible that the SPV's would take legal action then with regard to outstanding mortgage arrears if one is faced with that situation?

 

Given earleir posts which have implied certain SPV's might not wish to appear publically for tax reasons as happened in the States, is it not likely that any SPV found to be a holder of mortgaged property could appoint a representative solcitor in the UK to act on their behalf in litigation and present themselves at court as representitves of the investor company (ie the SPV). Thinking aloud here, if we do establish that our mortgage is securitised then we could ask for that SPV to be party to the claim and in attendance in court? ...(not sure of the implications I am suggesting - minds running away with me..)

[supersleuth]

The SPV should be the claimant - but the SPV unlawfully conceals itself from the borrowers.

 

Even if the SPV does appoint a representative (which is lawful), that entity must declare on the claim form that it is claiming in a representative capacity on behalf of the SPV. But hey ho - so what if they fail to observe that law too!! (which is unlawful) and they fail to mention the representative capacity so that they can maintain the concealment of the SPV. That's just business as usual.

 

Upshot is: Yes, you could demand that the SPV be joined to the action because after all, it IS the SPV that has the claim against a borrower.

Edited March 25, 2009 by supersleuth

[tifo]

Abbey show as Title holder at the Land Registry as they first provided the mortgage and therefore remain so despite the introduction of the SPV under the assigning of the mortgage through this securitisation process. Under those circumstances they retain the right to sue.

 

This would mean they gain my manipulating the law?

 

Isn't this a loophole they use where the title should be changed but if it isn't, there is no penalty for the bank?

[supersleuth]

Hi Tifo,

 

This is an unlawful exploitation of the registration gap. The SPV should be registered but is not. In fact, the law mandates that they inform the LR and register. However, the SPVs are not registered at LR because both the seller (in this example Abbey) and the SPV agree in their contract of sale that they will NOT TELL THE LR.

 

There is a penalty. It is a criminal offence under s.123 LRA to intentionally supress and conceal information from the LR. Thus, when the seller (in this case Abbey) and the SPV deliberately agree in their contract of sale to supress and conceal from the LR, the information concerning the transfer of title to the SPV, they commit a criminal offence.

 

Practical reality is - that they can and do commit this criminal offence and do get away with it (so far). Nonetheless it is still a criminal offence.

 

In other words, this goes much further than 'manipulating' the law - it is an outright breach of law.

 

Of course, we would go to jail if we surpressed and concealed information from the LR of a transfer - but the banks and SPVs are rich and powerful - so much for the rule of law eh.

[Rhia]

Oh this is terrific stuff. May I join in? Well I am going to anyway.

 

Where does novation fit into this? As I see it if the SP(I;))V and the OC asks the mortgagee to sign a document agreeing to this (i.e.novates) then surely this is a simple way around this?

 

If they don't, then why not?

 

(My hunch is they want to keep it from the authorities not specifically the mortgagee due to the international game of dodge the taxman).

[supersleuth]

Hi Rhia,

 

In broad terms, the doctrine of novation has no application here because a novation would require the expressed consent of both the original contracting parties whereas an assignment does not. Which means that the borrower as one of the original contracting parties would have to be involved in a novation (which is counter to their concealment ploy). Thus, the contracts are assigned. The standard contracts have a provision where the borrower consents to the assignment plus assignment is allowed at law under the Law of Property Act 1925 s.136.

 

Your hunch is spot on. It is likely that it is not just concealment from the borrowers, the LR and the courts, it is also concealment from the tax man.

 

In very simplist terms, most SPVs are foreign companies - when a foreign company receives interest from us borrowers - that interest is income that is subject to withholding tax. Lets say at a 30% rate. Therefore, 30% of our monthly mortgage payment is supposed to be paid to the Inland Revenue (i.e. withheld from going abroad) and then the remaining 70% would then be sent abroad to the foreign SPV - but when the interest is paid to a british bank - there's no withholding tax! A good reason therefore to remain concealed. Just imagine how much money the Inland Revenue would receive if 30% of British borrowers monthly payments were paid to our tax man.

Edited March 25, 2009 by supersleuth

[tifo]

but the banks and SPVs are rich and powerful - so much for the rule of law eh.

 

So it seems they get away with it and we may suffer by being repossessed by someone who shouldn't hold legal title?

 

What would the court say if this was brought up in a hearing? From the case above, they would seem to look at the law and state, yes, the bank holds legal title as it hasn't changed so they can sue ....

 

Also, what about mortgages before 2002 and the new Act, as many of us will have. Is the bank still obliged to follow the new 2002 Act and change titles or not? My bank (Abbey) has said they do follow the new Act because they've recently sent me all my documents back (no mortgage deed) as no longer being required by them to be heald.

[supersleuth]

Hi Tifo,

 

The bank are always obliged to follow the law - and the LRA 2002 is law.

 

Have you got it in writing that the Abbey actually say that they DO NOT FOLLOW THE NEW ACT?

 

Don't understand you saying that you've got no mortgage deed. Do you mean that the Abbey have sent you back the LAND CERTIFICATE? A Land Certificate is different from a mortgage deed. If it is the Land Certificate that was sent back to you - that is correct, the LRA 2002 abolished the need for the Land Certificates so the law there has changed and Land Certificates are now defunt.

[tifo]

If it is the Land Certificate that was sent back to you - that is correct, the LRA 2002 abolished the need for the Land Certificates so the law there has changed and Land Certificates are now defunt.

 

Yes, that's what i said, they've sent the title register and title plan back, plus the land transfer deed from the developer to myself, citing the LRA 2002 and there being no need for them to keep these docs.

 

I didn't say bank said anything, i was asking that because the LRA 2002 stipulates a change of legal title for the mortgage charge, would the bank have to effect this, as my mortgage was taken in 1999 and was probably securitised in their Oct 1999 prospectus? I am assuming the previous LRA 1925 would have applied?

 

LRA 1925

 

"33 Transfer of charges

(1) The proprietor of any registered charge may, in the prescribed manner, transfer the charge to another person as proprietor

(2) The transfer shall be completed by the registrar entering on the register the transferee as proprietor of the charge transferred, but the transferor shall be deemed to remain proprietor of the charge until the name of the transferee is entered on the register in respect thereof.

 

Also, the above judgment (Paragon vs Pender) stated that the LoP 1925 s.114 applies?

 

LoP 1925

 

"114 Transfers of mortgages

(1). A deed executed by a mortgagee purporting to transfer his mortgage or the benefit thereof shall, unless a contrary intention is therein expressed, and subject to any provisions therein contained, operate to transfer to the transferee-

(a) the right to demand, sue for, recover, and give receipts for, the mortgage money or the unpaid part thereof, and the interest then due, if any, and thenceforth to become due thereon; and

(b) the benefit of all securities for the same, and the benefit of and the right to sue on all covenants with the mortgagee, and the right to exercise all powers of the mortgagee; and

© all the estate and interest in the mortgaged property then vested in the mortgagee subject to redemption or cesser, but as to such estate and interest subject to the right of redemption then subsisting."

Edited March 25, 2009 by tifo