Carmel Butler / House of Commons

[supersleuth]

Hi PammyG,

 

Welcome - with open arms!!!

 

When the opinion is published, please let us know where it is published?

 

The opinion will be of great importance and interest to all CAGgers, and if you could oblige by letting us know where it will be published, or better still, posting a link of where it is published - we will all be very grateful.

 

Supersleuth

[supersleuth]

I to will be printing this off to hand to the judge on tuesday.

Littledotty27

 

How did you get on?

[supersleuth]

That's precisely the point...the judge's don't have a clue!...

 

so they had over people's homes on the back of the claimant's false testimony because the judges don't have a clue but what's worse the judges don't listen to litigants in person, don't enforce the law and don't educate themselves.

 

Hope you're still OK for the moment...post on your SPML thread if you need any help.

[supersleuth]

Hi Littledotty,

 

I think you may be in relatively safe hands with your judge - have read back over your SPML thread, and this judge (assuming its the same one) seems to actually take notice of you.

 

Two things you mention in your post gives some hope - first, you said he told the rep that you have the right to change your payment date - that is law - and he has supported your point and applied the law. Hoorray.

 

Second, he has actually LOOKED at the Land Registry and said that he's not completely content with it (albeit that he didn't say why). No matter, he is taking some point at issue with the register. He maybe just needs some time to work out the legal reasoning before he articulates the issue with the register...and just maybe he needs to (and maybe will) clue himself up on the securitisation and maybe he will study the HoC evidence before the next hearing.

 

Note all this is speculation from the comments that you made above - and I may be wrong - but he didn't give them possession and he is bringing you back again next month....you may be pulling through...slowly...but you may just be getting there. So keep pluggin away.

 

Did he say why he wanted you back next month?

 

Supersleuth

[supersleuth]

Littledotty,

 

Seems like SPML may have mixed up your mortgage deed with another borrower's mortgage deed. i.e. they've erroneously registered the deed of a borrower of £50K date Jan 06 against your property.

 

It is similar to the issues in the USA - it is possible that SPML do not HAVE your mortgage deed (notwithstanding that SPML do not own your mortgage in any event!). You can write to SPML and tell them that you want to INSPECT the ORIGINAL mortgage deed which they hold and tell them that you want them to produce the ORIGINAL mortgage deed at the next hearing.

 

If the deed turns out to be dated Jan 06 and that is NOT your mortgage deed, then they can take a hike - can't sue you on the back of another persons deed! or if they do produce your deed, then the LR needs to be corrected - in which case the the LR can fully correct the LR and update with the real legal owner too i.e. EUROSAIL, in which case SPML can take a hike again!

 

Main point is: If they CANNOT PRODUCE the ORIGINAL deed, then they can't sue you on the mortgage deed. It is the same common law as has been used in the USA. So demand inspection and disclosure of the (1) mortgage deeds and (2) the title deeds to your property

 

See e.g. this link of how borrowers in the US are prevailing in their cases.

http://www.consumeractiongroup.co.uk/forum/mortgages-secured-loans/189390-us-interesting-reading.html

 

BTW: when reading the link, the words THE NOTE in the USA is roughly equivalent to the MORTGAGE DEED in the UK. i.e. it is the document that acts as the promise to pay the lender.

Edited March 19, 2009 by supersleuth

[supersleuth]

Hi Littledotty,

 

When considering your mortgage deed, note that you gave the deed to Matlock (or was it LMC) - but that it is SPML who are asserting the deed against you. Therefore, SPML must first prove that they own your deed and thereby have the legal right to sue you - and in any event, you can show from the prospectus that SPML do not own your mortgage because SPML have since sold it to Eurosail. So Eurosail are the only entity in privity of contract with you and only Eurosail have the right to sue you.

[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

[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.

[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

[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

[supersleuth]

Not Yet. PammyG said the end of the month so hopefully we'll hear back from her soon. That QC's opinion and/or the publication she mentioned could be good news for us. Fingers crossed.

[supersleuth]

Roony,

 

It is not illegal to create a mortgage on your mortgage. It is called a sub-charge and it is entirely legal for an SPV (as the legal owner), to use your mortgage to create a sub-mortgage(i.e. legal charge on your mortgage).

 

Here are the legal steps.

 

FIRST: the original lender sells the legal title to the SPV. The SPV now owns the legal title to your mortgage. Thus far, all is legal and above board. The lender has sold its legal title to the SPV. All totally legal. So now the SPV is your lender and your mortgagee.

 

There is no securitisation at this point. The original lender has not securitised your mortgage. At this point it is just a straight forward sale and purchase in the same manner that you could sell your house to another person.

 

Once the SPV has bought the legal title to your mortgage, it is the SPV that securitises your mortgage. Thus,....

 

 

SECOND: the SPV then uses its legal powers as the legal owner to create the sub-charge. That is legal. It is legal because the SPV is the legal owner and the legal owner can create a sub-charge and can transfer its legal title to a Trustee in favour of the investor beneficiaries. The SPV can exercise the powers of the legal owner by virtue of the fact that it is the new owner of the legal title that is ENTITLED TO BE REGISTERED at the LR. Not only are they ENTITLED to be register, the law mandates that they MUST register - but they don't.

 

As the SPV has been transferred the legal title, the SPV is obliged under s.27(3) and (4) to register its legal ownership at the Land Registry. But they don't abide by the law. They don't register at the LR and they don't tell you that the SPV is now your lender and your mortgagee. (This bit is illegal)

 

However, note, that whilst the SPVs exercise the legal owners legal powers to create a sub-charge, they have still failed to comply with their statutory obligation to register their legal title at the LR....and the reason this failure to register at the LR is acriminal offence is because the SPV do not INTEND to ever tell the truth to the LR that they are the legal owners. They conceal and suppress their legal ownership and allow the original lender to pretend to the courts that that they still have legal rights against you, the borrower. They don't. See LRA 2002 s.123 which makes it a criminal offence to suppress and conceal information from the LR.

 

The original lender who sold its legal title to the SPV has no legal rights over you...it just appears that they have legal rights because the seller and the SPV have concealed the truth from the LR and failed to comply with the statutory obligations of s.27. The courts believe the LR to be correct (i.e. that there has been no criminal skullduggery) and so the court's hand over the borrower's property on the back of the seller-lenders and the SPV's criminal concealment.

 

Therefore, in practice, your ONE mortgage now hasTWO Mortgagees both exercising the legal powers of the ONE legal title. On the one hand you have the original lender (who has sold ALL its legal title), pretending that it has legal rights to possession of your home whilst on the other hand, your other mortgagee, the SPV is also exercising the legal powers of the legal owner by creating a sub-charge on your mortgage.

 

Isn't that nice. Your ONE legal title has been carved up so that every tom dick and harry gets a slice of the pie that you pay for...ever wondered who is financing the infamous city bonuses? You see, it is me an you and all the other borrowers.

 

There is no way the law will allow the ex-owner (the original lender) to exercise legal powers whilst at the same time allow the new owner (the SPV) to both simultaneously claim to be legal owners and exercise legal owner powers. You cannot share the legal ownership in this manner once sold - the new owner must register.

 

It is the SPV that is setting your interest rates, setting the repossession policies etc., thus, it is the SPV that is exercising all the legal powers of the legal owner whilst the imposter lender/legal owner who is named on the LR as being the owner of your mortgage - is plain false and criminal.

 

Does this clear up your query?

Edited April 16, 2009 by supersleuth

[supersleuth]

Actually,this issue really is an easy decision for each each borrower/consumer to make. And each of us must make our own individual decision.

 

Those CAGgers who are persuaded that the assignment is an equitable assignment. Fine - you accept that the lender is the legal owner of your mortgage and you defend yourself from your repossession case on whatever grounds you consider are available to you.

 

For those CAGgers who are persuaded that the assignment is in fact a legal assignment and that the lender is an imposter who has no legal rights to enforce against you - then go for it - if the lender has no legal rights, then there is no legal rights it can enforce against you. There is plenty of evidence to prove that the imposter lender who's only claim to the registration of its legal title is a result of criminal conduct and is therefore criminally registered as the legal owner which means that you may defeat their claim on those ground.

 

Nobody is forced to accept one or the other. We make our own decisions. This issue has never been tested in a court of law and so there is no firm legal authority on the facts and law.

 

But hey, for those who believe there is only an equitable assignment - that's cool, you have dismissed the opportunity of testing the validity of your lender's claim against you and you must defend on other grounds.

 

We all can make our own individual choices and its only right that we do. Respect to you all for whatever decision you make.

 

Anyway, you don't need to use either of these arguments in your defence. There are loads of other defences that can be used against a repossession claim.

 

Best of luck to us all, whatever choices of defence we may individually choose.

 

Supersleuth

[supersleuth]

Hi Roony,

 

See e.g. my post at 6.00 am today on Scedminc's SPML-Preferred thread.

[supersleuth]

BRW,

 

What an excellent post!!!! you should write a book!! All of it brilliant. Especially enjoyed the 2nd paragraph - what a fantastic and concise articulation of the real story.

 

Supersleuth

Edited April 21, 2009 by supersleuth

[supersleuth]

No, Sadbuttrue,

 

Supersleuth said that the SPV grants the Trustee a sub-charge against the mortgage contracts.

 

Therefore, the SPV owns your mortgage - the Trustee owns the SUBCHARGE (i.e. the SUB-charge created against your mortgage)

[supersleuth]

When you grant a mortgage against your property the MORTGAGE CHARGE is registered against YOUR title register at the LR.

 

When an SPV grants a mortgage SUBCHARGE against the property of its own company (i.e. the property being the mortgage contracts that it owns), the MORTGAGE SUB CHARGE is registered against the SPV's register at COMPANIES HOUSE.

 

The CHARGE will always be registered on the REGISTER of the person who GRANTED the CHARGE.

 

To repeat: you granted a charge against your property - the charge is registered against your title at the Land Registry.

The SPV granted a sub-charge against your mortgage (i.e. its assets) - the charge is registered on the SPVs registration at Companies House.

 

Same principle in both cases.

 

To view it from another angle:

 

If you read YOUR title register at the LR - the register will tell the world that YOU have granted a charge IN FAVOUR of your lender. If you read the SPVs form 395 filing, it will tell the world that the SPV has granted a charge IN FAVOUR of the Trustee.

Edited April 23, 2009 by supersleuth

[supersleuth]

Yes, the sub-charge SHOULD be registered at the Land Registry AND... the SPV SHOULD register itself as the legal owner of the mortgage at the Land Registry.

 

BUT...they don't abide by the law!...BECAUSE they don't want you to know what's going on...AND...they don't want the TAX MAN to know either...which is the more important point. The reason for all this concealment is to avoid (or evade) paying TAX!

[supersleuth]

Thats even better, so the 395 form is proof the spv granted a trustee the right to mortgage the legal title to the mortgage it owns ( not the property owned by the borrower).

 

 

Virtually right..the form 395 is proof that the SPV has exercised its LEGAL POWERS, AS THE LEGAL OWNER. To create a sub-charge you must be the LEGAL OWNER. So if the SPV was not the legal owner of your mortgage - it could not create a sub-charge.

 

But the bit where you say, that that the SPV granted a trustee the right to mortgage the legal title is incorrect. It is the SPV that HAS granted the Trustee a MORTGAGE on YOUR mortgage (i.e the subcharge). Therefore, the Trustee OWNs a mortgage against your mortgage contract.

 

If the SPV doesn't pay ITS lender (i.e. its investors), then the Trustee will enforce ITS mortgage against the SPV, who will in turn HAVE to enforce its mortgage against you, in order to pay its investors.

 

Think of it like dominoes.

[supersleuth]

Roony, please re-read the posts and mull it over.

[supersleuth]

Yes HSBCrusher, Edit out the names.....oh just how very revealing it is that the NAME was so on the ball and complained....is this more of the alleged defamation...anyone watching this thread over the last few hours WILL now KNOW where SAD BUT TRUE COMES FROM AND WE NOW KNOW WHO IS THE COMPLAINANT!!! And you're complainant is here on this site on a Friday evening. It really is SAD BUT TRUE the power that these people have over us even discussing their rot.

 

 

Note that this post has mentioned NO names - will your complainant want this post removed too?

[supersleuth]

My goodness, your complainant didn't stop at much...every single post from today has GONE. Noticed that the point at which I became "unapproved" is when I asked SAD if she/he worked for a particular law firm? Tjat's the point at which things became unapproved. But also Noticed that you didn't have any objection to SAD mentioning names? Interesting...but then again, SAD was only mentioning an individual and not a powerful law firm. And by god are they powerful. They can control the CAG site too by the looks of things at the drop of a hat. Well done powerful law firm.

[supersleuth]

Shocked and disappointed with you Site Team - a whole 24HRs of posts gone missing because of one powerful law firm - what happened to freedom of speech, oh, that's right, you're only free to speak if the powerful law firm agrees with what you say - right? They sit as judge and jury in their own cause and that's OK is it?

 

The only good thing that has come out of this is that some of us now know who is interferring with free speech and who it is that is threatening you.

[supersleuth]

SAD,

 

I accept that you are hostile and nasty and that you will not be civil. That's fine. As of this moment, I will no longer respond to your irrelevant diatribe.

 

Oh EIE,

 

Thanks for your post - it's good to add some humour into all this rot - it made me laugh out loud!!!...even though it is another one of those SAD truths.

[supersleuth]

JonCris,

 

PM box was full due to the number of posts that the powerful law firm took objection (i.e. the firm from whence the SAD one crawled out of)...consequently, both my PM box and my personal email notification went into overdrive. Emptied them out from the censorship notifications now, so try to PM again.