Carmel Butler / House of Commons

[enoughisenough]

Or, in the alternative, (ha ha), lay down, roll over and let muppets on telephones and their lackeys in suits (bad suits) educated beyond their intelligence (and sometimes beneath it) take our homes.

 

Why? Because they've got the wonderful ability (contributing immensely to the betterment of humankind in the process) of being able to talk any old B*****KS with a sneering, nasty, aggressive, alpha male, inadequate and socially dysfunctional manner, persuading YOU that THEY are right and you are wrong.

 

Apologies for the rant. I'll get back on message soon! I am working flat out on several lines of attack which may or may not bear fruit. If anyone has got an SPPL SPML CAPSTONE REPO soon PM me. I've got some ideas that might help.

 

Keep the faith. EIE

[enoughisenough]

Guys Take a look At this: I thought this was brilliant its from the Consumer

 

 

 

Hello all. Take a look at this. I think I could be onto something good here.

 

Consumer Credit Act 2006

 

Section 19: Unfair relationships between creditors and debtors

 

46. Section 19 inserts a new section 140A after section 140 of the 1974 Act.

Section 140A(1) enables a court to make an order under the new section 140B,

inserted into the 1974 Act by section 20 (see below) if it finds that the relationship

between the creditor and the debtor arising out of a credit agreement, or that

agreement taken with any related agreement, is unfair to the debtor. A relationship

may be unfair to the debtor because of one or more of the following:

 

• any of the terms of the agreement or any related agreement;

 

• the way in which the creditor has exercised or enforced any of his rights under

the agreement or any related agreement;

 

• any other thing done (or not done) by, or on behalf of, the creditor (whether

occurring before or after the making of the agreement or any related

agreement). (flogging the loans without telling anybody perhaps?)

 

 

47. The court may take into account all matters it thinks relevant (including

matters relevant to the debtor and to the creditor) in determining whether a

relationship is unfair. This may include anything done or not done on behalf of or in

relation to the creditor’s associates or former associates (as defined by section 184 of the 1974 Act).

 

Then I read this

 

48. Section 140A does not apply to agreements that are exempt under section

16(6C) of the 1974 Act. Section 16(6C) exempts consumer credit agreements secured on land that are regulated by FSA under FSMA.

 

Does anyone have any idea why this exemption is in here. Is that because FSMA already provides for this and if so does anyone know where the relevant section of the FSMA is?

 

This is excellent because we can call into question the entire contracts’ legitimacy and as the court to consider remedies up to and including cancelling the contract

[Smarterchick]

Can I just throw an element of caution to the wind here and ask for opinions?

 

I quoted Abbey National securitisations as an example previously so I'll stick to using them as I had to focus on someone to follow through the trail of events surrounding Carmen Butlers report. I found the company who Abbey securitise through - Holmes Financial and set about finding the back-up to their 'sales' and found it in www.secinfo.com:

 

Taking one of their prospectuses I came across this, which, on the face of it shows that the securitisation is by way of equitable rather than absolute or legal assignment leaving the Title to our properties with Abbey. This then would fly in the face of CB's suggestion that the title should be registered with the Land Registry and would indeed leave Abbey entitled to press for repossession should the need arise and not the SPV's.

 

What I'd like is an opinion of whether this might be the same set-up for SPML, Preferred, or any other finance company and how Abbey's procedures are any different. If they were all like this surely this CB report is faulty? Therefore suggesting before anyone takes this argument into a courtroom they make doubly sure they have seen a 'sales' document like this one otherwise they will have mucho egg on their faces.

 

This is what Abbeys document, to the SPV's says:

 

"Although the seller has assigned the loans to the mortgages trustee, the seller continues to have an interest in the loans as holder of the legal title to the loans and as one of the beneficiaries of the mortgages trust under the mortgages trust deed."

and:

 

"ASSIGNMENT OF THE CURRENT PORTFOLIO OF LOANS AND THEIR RELATED SECURITY TO THE MORTGAGES TRUSTEE Under the mortgage sale agreement, on 26th July, 2000 the seller transferred by way of equitable assignment to the mortgages trustee its interest in a portfolio of loans, together with all of the related security to those loans. Further assignments of loans took place on subsequent distribution dates. In addition, the seller will assign a portfolio of new loans and their related security to the mortgages trustee on or before the closing date. Full legal assignment of the loans will be deferred until a later date, as described under "-- LEGAL ASSIGNMENT OF THE LOANS TO THE MORTGAGES TRUSTEE". On the closing date, the consideration paid to the seller will have consisted of: * the sum of [GBP]2,256,000,000 paid by Funding on 26th July, 2000 pursuant to the terms of the mortgage sale agreement (from the proceeds of the previous intercompany loan made by Holmes Financing (No. 1) PLC) and a covenant by Funding to pay, at a later date, thedeferred consideration; * the sum of [GBP]2,404,516,000 paid by Funding on 29th November, 2000 pursuant to the terms of the mortgages trust deed (from the proceeds of the previous intercompany loan made by Holmes Financing (No. 2) PLC) and a covenant by Funding to pay, at a later date, thedeferred consideration; * the sum of [GBP]2,167,000,000 paid by Funding on 23rd May, 2001 pursuant to the terms of the mortgage sale agreement (from the proceeds of the previous intercompany loan made by Holmes Financing (No. 3) PLC) and a covenant by Funding to pay, at a later date, the deferred consideration; * the sum of [GBP]2,667,000,000 paid by Funding on 5th July, 2001 pursuant to the terms of the mortgages trust deed (from the proceeds of the previous intercompany loan made by Holmes Financing (No. 4) PLC and a covenant by Funding to pay, at a later date, thedeferred consideration; "

So, should this be taken as read that this would be contrary to Carmen Butlers report and therefore her analysis wrong by way of Abbey. Abbey securitise massive amounts of property portfolio's, have big firms of lawyers executing these deals and one would imagine they'd covered themselves in the event this were to be challenged. Be interested in views.

[supersleuth]

Carmen Butler's report may be a correct analysis. The prospectus to which you refer states that the purchaser of the mortgages has the RIGHT to demand its registration of its legal title to the mortgage. Legal title has passed, but the legal title merely does not operate until the Land Registration is completed - which completion is mandated by s.27 of the LRA 2002.

 

See the prospectus that you have used where it states:

"The mortgages trustee has the right

to demand that the seller give it legal title to the loans and the related

security in the circumstances described in "ASSIGNMENT OF THE LOANS AND THEIR

RELATED SECURITY -- LEGAL ASSIGNMENT OF THE LOANS TO THE MORTGAGES TRUSTEE".

Until then the mortgages trustee will not apply to the Land Registry"

 

The upshot is that the only reason the seller remains as the registered proprietor of the mortgages is because both the seller and the purchase have chosen to violate its legal obligation to comply with s.27

[Smarterchick]

That's my girl/boy

 

So, if one were to challenge the right therefore, of Abbey to repossess would you feel this position you state sufficient for the Court to resist the granting of the repossession?

 

For the benefit of those who don't know this is what s.27 says:

Registrable dispositions

 

27 Dispositions required to be registered

 

(1) If a disposition of a registered estate or registered charge is required to be completed by registration, it does not operate at law until the relevant registration requirements are met.

(2) In the case of a registered estate, the following are the dispositions which are required to be completed by registration—

(a) a transfer,

(b) where the registered estate is an estate in land, the grant of a term of years absolute—

(i) for a term of more than seven years from the date of the grant,

(ii) to take effect in possession after the end of the period of three months beginning with the date of the grant,

(iii) under which the right to possession is discontinuous,

(iv) in pursuance of Part 5 of the Housing Act 1985 (c. 68) (the right to buy), or

(v) in circumstances where section 171A of that Act applies (disposal by landlord which leads to a person no longer being a secure tenant),

© where the registered estate is a franchise or manor, the grant of a lease,

(d) the express grant or reservation of an interest of a kind falling within section 1(2)(a) of the Law of Property Act 1925 (c. 20), other than one which is capable of being registered under the Commons Registration Act 1965 (c. 64),

(e) the express grant or reservation of an interest of a kind falling within section 1(2)(b) or (e) of the Law of Property Act 1925, and

(f) the grant of a legal charge.

(3) In the case of a registered charge, the following are the dispositions which are required to be completed by registration—

(a) a transfer, and

(b) the grant of a sub-charge.

(4) Schedule 2 to this Act (which deals with the relevant registration requirements) has effect.

(5) This section applies to dispositions by operation of law as it applies to other dispositions, but with the exception of the following—

(a) a transfer on the death or bankruptcy of an individual proprietor,

(b) a transfer on the dissolution of a corporate proprietor, and

© the creation of a legal charge which is a local land charge.

(6) Rules may make provision about applications to the registrar for the purpose of meeting registration requirements under this section.

(7) In subsection (2)(d), the reference to express grant does not include grant as a result of the operation of section 62 of the Law of Property Act 1925 (c. 20).

 

There is also the Inland Revenues opinion too: http://www.hmrc.gov.uk/manuals/vatfinmanual/VATFIN3215.htm

Edited March 21, 2009 by Smarterchick

[supersleuth]

Oh and it seems that Smarterchick is really very smart...which law firm do you work for Allen & Overy or Slaughter & May?....interesting that you should kindly bring to our attention that Abbey are party to this illegal conduct too! and many thanks for letting all the Abbey mortgage borrowers know that Holmes Financal is the SPV that own their mortgages. Very helpful.

[enoughisenough]

Bloody hell. I'm with Abbey and SPML! Lots to do!

[Smarterchick]

Oh and it seems that Smarterchick is really very smart...which law firm do you work for Allen & Overy or Slaughter & May?....interesting that you should kindly bring to our attention that Abbey are party to this illegal conduct too! and many thanks for letting all the Abbey mortgage borrowers know that Holmes Financal is the SPV that own their mortgages. Very helpful.

 

 

I don't and never have worked for a legal practice...I'm just like everyone else on here - 'a rouge debtor' fighting for their lives, but with a rather large nose for digging out the truth... I've done a bit of digging before..

[supersleuth]

Opps sorry Smarterchick - unfair question. Just read your other thread and realise you've been working hard for sometime uncovering the Abbey rot too! Really mean it - great work!

 

In answer to the "equitable assignment" argument that the lenders put forward, what they are really doing is exploiting the registration gap, i.e. the gap between the date on which the parties sign the contract and the date on which the LR is informed of the change of ownership. For us law abiding citizens, when we buy a property, we complete our purchase/sale on X date, and our conveyancer solicitor will send the paper work to the LR - and then on Y date the sale will be registered at the LR. So it is inevitable that there will be a time difference between the date of sale and the date on which the LR will be updated. But what these lenders are doing is exploiting this naturally occuring gap by completing the sale on X date - and then contracting that they will NOT TO TELL THE LR! It is the contracting to intentionally NOT tell the LR that makes it a criminal offence under s.123.

 

Legal title passess on the contract completion date. However, s.27(1) states:

it does not operate at law until the relevant registration requirements are met.

 

Note that this clause does not say "it will operate in equity" - it says it will not operate at law.

 

But the lawyers who write the prospectus have interpreted the words "will not operate at law" to mean that it must operate in equity if it does not operate at law. Wrong - if parliament had wanted those words to mean that a transfer would by deemed an equitable transfer until such time that the transfer is registered at the LR then parliament would have expressly said that! It did not. It said that the (legal) transfer would not OPERATE AT LAW until the relevant registration requirements are met. This does not mean that the transfer would be deemed to be an equitable assignment it is the smoke and mirrors legal confusions that the lawyers play and have successfully caused confusion because it is a deeply technical legal issue.

 

The point is that s.27(3) and (4) mandates that a transfer of legal title MUST be registered. s.123 states that it is a criminal offence to intentionally conceal and surpress information from the LR. Thus, transfer of legal title is effected on the date of completion of the contracts - that information should be supplied to the LR - but the contract of sale states that the seller and the SPV will conceal the sale/assignment/transfer from the LR (and the borrower).

 

Note the section you linked in your post above also states

 

Pending completion of the transfer, the right of the mortgages trustee to

exercise the powers of the legal owner of the mortgages has been secured by an

irrevocable power of attorney granted by the seller in favour of the mortgages

trustee, Funding and the security trustee.

 

The words "pending completion of the transfer" means during the time in which they should be, but are not registered at the LR. i.e. the completion of registration at the LR of their legal title - the registration gap - and in the case of the SPVs, their criminal exploitation of the registration gap.

 

And note also, that the SPV have acquired the IRREVOCABLE Power of Attorney so that they (the SPV) exercises ALL the legal entitlements without having to put their name on the LR. It is a nonsense that the lawyers suggest the SPV are merely beneficiaries of an equitable assignment when in fact that SPV is exercising ALL the legal powers and the lender that is registered as the owner of your mortgage has NO LEGAL POWERS. As the prospectus state - the lender registered at the Land Registry is merely the legal title HOLDER - i.e. NO LEGAL POWERS, just the HOLDER in order to keep the SPV concealed.

 

All done in secrecy as they don't expect the borrowers to read the Prospectus so ordinarily you wouldn't know.

 

This is a deeply technical legal issue - but the point is - THE SPV IS THE LEGAL OWNER!

Edited March 22, 2009 by supersleuth

[Smarterchick]

So, the next thing is to devise a strategy of throwing the guantlet down to the lender,

 

a) at what time the most appropriate time would be (such as at the point of a repossession claim)

 

b) what tools one uses

 

c) the risks involved

 

d) the liklihood of the SPV actually taking legal action

 

e) anything else anyone feels might put the mortgagee at risk in attempting this?

 

 

Come on folks, lets get debating...

[enoughisenough]

When: NOW with a PRO BONO/or fully stumped up for Barrister IN THE HIGH COURT CHANCERY DIVISION. RISK - VERY HIGH POTENTIAL COSTS. And argument inadmissable further down the judicial food chain.

 

Tools: MCOB pre contract disclosure, CCA 2006, UTCCRs, CB, FOI PROSPECTUSES Risks, FSA and so on. Risks -highly complex and much at stake, real smoke and mirrors stuff.

 

SPV TAKING ACTION - High but probably only later in the game, benefit would be to flush them out.

 

Upside - a tide of repossessions stayed until outcome.

Downside - a tide of repos unstoppable while the lawyers feast.

 

That's my assessment.

 

Anyone want to pilot this and risk getting shot down in flames?

[JonCris]

Opps sorry Smarterchick - unfair question. Just read your other thread and realise you've been working hard for sometime uncovering the Abbey rot too! Really mean it - great work!

 

In answer to the "equitable assignment" argument that the lenders put forward, what they are really doing is exploiting the registration gap, i.e. the gap between the date on which the parties sign the contract and the date on which the LR is informed of the change of ownership. For us law abiding citizens, when we buy a property, we complete our purchase/sale on X date, and our conveyancer solicitor will send the paper work to the LR - and then on Y date the sale will be registered at the LR. So it is inevitable that there will be a time difference between the date of sale and the date on which the LR will be updated. But what these lenders are doing is exploiting this naturally occuring gap by completing the sale on X date - and then contracting that they will NOT TO TELL THE LR! It is the contracting to intentionally NOT tell the LR that makes it a criminal offence under s.123.

 

Legal title passess on the contract completion date. However, s.27(1) states:

it does not operate at law until the relevant registration requirements are met.

 

Note that this clause does not say "it will operate in equity" - it says it will not operate at law.

 

But the lawyers who write the prospectus have interpreted the words "will not operate at law" to mean that it must operate in equity if it does not operate at law. Wrong - if parliament had wanted those words to mean that a transfer would by deemed an equitable transfer until such time that the transfer is registered at the LR then parliament would have expressly said that! It did not. It said that the (legal) transfer would not OPERATE AT LAW until the relevant registration requirements are met. This does not mean that the transfer would be deemed to be an equitable assignment it is the smoke and mirrors legal confusions that the lawyers play and have successfully caused confusion because it is a deeply technical legal issue.

 

The point is that s.27(3) and (4) mandates that a transfer of legal title MUST be registered. s.123 states that it is a criminal offence to intentionally conceal and surpress information from the LR. Thus, transfer of legal title is effected on the date of completion of the contracts - that information should be supplied to the LR - but the contract of sale states that the seller and the SPV will conceal the sale/assignment/transfer from the LR (and the borrower).

 

Note the section you linked in your post above also states

 

Pending completion of the transfer, the right of the mortgages trustee to

exercise the powers of the legal owner of the mortgages has been secured by an

irrevocable power of attorney granted by the seller in favour of the mortgages

trustee, Funding and the security trustee.

 

The words "pending completion of the transfer" means during the time in which they should be, but are not registered at the LR. i.e. the completion of registration at the LR of their legal title - the registration gap - and in the case of the SPVs, their criminal exploitation of the registration gap.

 

And note also, that the SPV have acquired the IRREVOCABLE Power of Attorney so that they (the SPV) exercises ALL the legal entitlements without having to put their name on the LR. It is a nonsense that the lawyers suggest the SPV are merely beneficiaries of an equitable assignment when in fact that SPV is exercising ALL the legal powers and the lender that is registered as the owner of your mortgage has NO LEGAL POWERS. As the prospectus state - the lender registered at the Land Registry is merely the legal title HOLDER - i.e. NO LEGAL POWERS, just the HOLDER in order to keep the SPV concealed.

 

All done in secrecy as they don't expect the borrowers to read the Prospectus so ordinarily you wouldn't know.

 

This is a deeply technical legal issue - but the point is - THE SPV IS THE LEGAL OWNER!

 

Excellent post

 

As most SPV's are similar in construction would it not be beyond the wit of us to prepare a template letter that members can use (after some modification to their particular SPV & circumstances) to send which asks all the right questions & which puts their 'lender' on the spot???

[tifo]

I quoted Abbey National securitisations as an example previously so I'll stick to using them as I had to focus on someone to follow through the trail of events surrounding Carmen Butlers report. I found the company who Abbey securitise through - Holmes Financial.

 

This is interesting to me as i'm with Abbey. Since the last 3 or 4 years, I tend to go through at least 1 repossesion hearing/eviction every year and some years ago it was 2 a year. I end up having to pay the arrears and the legal costs (around £1,300) every time.

 

Then i've come across this securitisation info and would like to use it, after much more research of course.

 

I'd be grateful if you could send me more info on Abbey. I've had my mortgage since 1999.

[piggyw]

Hi

My house is being repossesed , I now have a solicitor dealing with it , but I am going print off and read this report , maybe pass it on to my solictor .

Anyone had any luck with it ??

Piggyw

[Last of the Mohicans]

Hi all, apologies, been up to my proverbial for the past week or so in other stuff, but I havent forgotten this, and after I've done a little more digging and a bit of research I think I may have a valid "next step" based on what I've recieved.

It's not the Golden Egg, but it might well be the Goose That Lays One.

 

But I need to get my ducks in a row first...

 

That enough Anatidae references for one day I think, or you'll think I've quacked ...

 

Mo

[scedminc]

Hi all, apologies, been up to my proverbial for the past week or so in other stuff, but I havent forgotten this, and after I've done a little more digging and a bit of research I think I may have a valid "next step" based on what I've recieved.

It's not the Golden Egg, but it might well be the Goose That Lays One.

 

But I need to get my ducks in a row first...

 

That enough Anatidae references for one day I think, or you'll think I've quacked ...

 

Mo

 

mmmmm interesting post lol

[Smarterchick]

Hi

My house is being repossesed , I now have a solicitor dealing with it , but I am going print off and read this report , maybe pass it on to my solictor .

Anyone had any luck with it ??

Piggyw

 

 

The least you can do is put the bank/Building society/Finance company to strict proof that they have a right to the title. Get your solicitors to ask if the account has been securitised.Don't rely upon what is registered at the Land Registry and apply for the TS4 I think someone called it from the Land Registry, it costs £10, but gives you more info Now you are in litigation you can use CPR 31.6 Disclosure to insist they provide proof. One sub prime co Swift say they don't securitise, but Supersleuth says nearly all of them do, it's just a matter of finding out how they do it, let us know the bank and maybe some of us might be able to find out for you too as you need to be a sleuth to find out. These companies won't be volunteering the info easily.

 

Good luck Piggy.

[piggyw]

Hi

I am with GE Money . I hate this company with avengence !!

 

Piggyw

[Smarterchick]

Just for the record and as a procedure and matter of elimination :

 

I spoke to the FSA last week and asked them what facilities they had for viewing documents associated with securitisation in an attempt to find where these banks list our securitisation data...they came back this morning saying they have no access to this data and suggest the DPA Subject Acess route to gain this info if we want it. They apparently have no requirement for companies to disclose this and feel there to be no obligation for the banks/finance companies to supply it to us. We'll see...

 

 

SC

[enoughisenough]

Thanks SC

 

That's a cul de sac then. Pity. I'm beginning to wonder if we are batting on a sticky wicket here. It's one thing to be right, it's another thing entirely to prove it. SAR might be the only route but I've got a feeling they'd rather be fined, censured by the information Commissioner and so on than let this stuff see the light of day.

 

Guess someone's just got to go and fly a kite then. Whoever does so will know we are onto something when they get the mother of all reactions.

 

Cheers EIE. (Keep In Touch, I'm getting close now)

[supersleuth]

Hi Smarterchick,

 

The FSA do have the securitisation prospectuses. They are filed at the FSA under the UK Listing Authority. See the FSA's UK Listing Authority is on their website BUT you can't download the prospectuses from the web, you have to make a personal visit to the FSA at Canary Wharf and ask the receptionist for access to the public computer where you can access, and print off free-of-charge, the prospectuses.

 

As mentioned, the actual underlying transaction documents referred to in the propectuses are not publicly available, so the only route to these (that I have discovered) is the Companies Act s.423 route.

 

As for the SARs possibility - it maybe worth sending an SAR specifically to the SPV.

 

Supersleuth

[Last of the Mohicans]

Just for the record and as a procedure and matter of elimination :

 

I spoke to the FSA last week and asked them what facilities they had for viewing documents associated with securitisation in an attempt to find where these banks list our securitisation data...they came back this morning saying they have no access to this data and suggest the DPA Subject Acess route to gain this info if we want it. They apparently have no requirement for companies to disclose this and feel there to be no obligation for the banks/finance companies to supply it to us. We'll see...

 

 

SC

 

I wonder what the SFO would be able to dig up....

[bustthematrix]

... but it has in the US, and the same will happen here, perhaps even more so.

 

Read this thread

 

Mo, what do you mean 'it has in the US'?

[Last of the Mohicans]

Mo, what do you mean 'it has in the US'?

 

I see you picked it up OK

 

Cheers

 

Mo

[bustthematrix]

Absolutely. Cheers matey!