Smarterchick and Securitisations

[Smarterchick]

I have been posting on the other securitisation threads for Preferred and spml http://www.consumeractiongroup.co.uk/forum/mortgages-secured-loans/175426-mortgage-securitisation-preferred-9.html, but I thought rather than hijacking threads I'd begin my own and hope to contribute to the digging debates going on.

 

I have a mortgage which I believe to have been securitised, but the company refuse to provide the info (yet ) I believe the securitisation happened through a company called Holmes Financing (No5)Plc could be a different one, but until I find the actual tranche I won't know exactly. However, by going on to www.secinfo.com (you have to sign-up - free) there is a whole swathe of information and terms setting out the deals done through this SPV. One of the things I found though was this paragraph which I'd like comment on please: These are warnings from the SPV packagers I guess to investors

 

First:

Regulations in the United Kingdom could lead to some terms of the loans being unenforceable, which may adversely affect payments on the Issuer Notes

In the United Kingdom, the Unfair Terms in Consumer Contracts Regulations 1999, and (in so far as applicable) the Unfair Terms in Consumer Contracts Regulations 1994 (together, the “regulations”) apply to agreements entered into on or after July 1, 1995 and affect all of the loans. The regulations provide that:

•a borrower may challenge a term in an agreement on the basis that it is an “unfair” term within the regulations and therefore not binding on the borrower; and•the Office of Fair Trading, the Financial Services Authority and any other “qualifying body” (as defined in the regulations) may seek to prevent a business from using or recommending the use of unfair terms.

The regulations will not generally affect individually negotiated or “core terms” which set out the main subject- matter of the contract, such as the borrower's obligation to repay the principal. However, they may affect terms that are not considered to be core terms, such as the right of the lender to vary the interest rate.

For example, if a term permitting a lender to vary the interest rate (as the servicer is permitted to do) is found to be unfair, the borrower will not be liable to pay the increased rate or, to the extent that she or he has paid it, will be able, as against the lender, or any assignee such as Trustees, to claim repayment of the extra interest amounts paid or to set-off the amount of the claim against the amount owing by the borrower under the loan. Any such non-recovery, claim or set-off ultimately may adversely affect our ability to make payments on the Issuer Notes.

In August 2002, the Law Commission and the Scottish Law Commission issued a joint consultation LCCP No. 166/SLCDP 119 on proposals to rationalise the Unfair Contract Terms Act 1977 and the regulations into a single piece of legislation and a final report (incorporating a proposed Bill on unfair terms), which was expected early in 2004 but at the date of this annual report, has not yet been published. The Law Commissions have a duty under section 3 of the Law Commissions Act 1965 to keep the law under review for a number of purposes, including its simplification. The proposals are primarily to simplify the legislation on unfair terms. It is not proposed that there should be any significant increase in the extent of controls over terms in consumer contracts. Some changes are proposed, however, such as that the legislation should not affect core terms in so far as they are not substantially different from what the borrower should reasonably expect and are transparent. However, it is not obligatory for any of the Law Commission's reports to be considered for enactment as legislation by the UK government. It is therefore too early to tell how the proposals, if enacted, would affect the loans.

 

 

and Secondly and quite importantly:

 

"There may be risks associated with the fact that Trustees has no legal title to the mortgages which may adversely affect payments on the Issuer Notes

The sale by the seller to Trustees of the mortgages has taken effect, and any such sale in the future will take effect, in equity only. This means that legal title to the loans in the trust property remains with the seller, but Trustees has all the other rights and benefits relating to ownership of each loan and its related security (which rights and benefits are subject to the trust in favour of the beneficiaries). Trustees has the right to demand the seller to give it legal title to the loans and the related security in certain circumstances and until then Trustees will not apply to the Land Registry or the Central Land Charges Registry to register or record its equitable interest in the mortgages."

 

Does this second part mean that whilst securitisation has taken place, if repossession proceedings were issued by the mortgage lender here in the UK then they have every right to do so as Title holders and also remain on the Land Registry? In other words I can't go into court and plead the wrong people are trying to repossess me?

 

 

 

This page, if you can gain access is truely worth a read, long though it is as it shows a veiw from the warnings the bankers are giving out which may help us.. SEC Info - Holmes Financing No 5 PLC, et al. - 20-F - For 12/31/04

 

What I'd really like though is if someone can help me maneauvre my way around this website and find exactly how to see the tranches of sold mortgages.

Edited March 14, 2009 by Smarterchick

[enoughisenough]

Hi Smarterchick

 

This is pure gold. Have your mortgage provider taken action against you? Have you got a court date? I've got an idea which would really concentrate ALL their minds, I'll pm you with this later. I believe the only way to find out for certain what happened to YOUR mortgage is the advice super gave regarding going down to the FSA public libraries. If you are nowhere near london I am and I need to go down there. I might be able to help if push comes to shove.

 

Good luck and keep the faith EIE

[enoughisenough]

Hi

 

Foolishly I didn't read the second part of your post properly. I think this is exactly what the courts are for. However we need a collective strategy without effing up our own individual defences or claims. This is what I'm looking into. I'm going to test the water anyway because this is a millstone around all our necks which will go on for years if we don't challenge it properly.

[brassed-off-2]

Mmmmm .....Subbing with interest

 

B-O-2

[Smarterchick]

Hi Smarterchick

 

This is pure gold. Have your mortgage provider taken action against you? Have you got a court date? I've got an idea which would really concentrate ALL their minds, I'll pm you with this later. I believe the only way to find out for certain what happened to YOUR mortgage is the advice super gave regarding going down to the FSA public libraries. If you are nowhere near london I am and I need to go down there. I might be able to help if push comes to shove.

 

Good luck and keep the faith EIE

 

Yes and yes...they took repo action which I countered on something different to this securitisation stuff, but I am back in court in June to settle the other issue, this would be just the icing on the cake...

[midge61]

subbing

[enoughisenough]

What was your counter smarterchick?

[Smarterchick]

I'll PM you E, but it's not related to this business for anyone else's purposes..more ways than one to skin a cat!

[Nightmare4banks]

Hi all!

 

I have been reading this thread with interest.

 

In conclusion,I think the main legal arguments are:

 

1.That alot of material evidence with the securtisations that has been concealed from both the courts and mortgage payers in order for judges to reach a fair decision and for mortgage payers to be able to prepare a defence and have a fair hearing.

 

2.I am not referring to the criminal breaches which are a total different thing and would not normally be dealt with in civil court that has the powers to grant possession orders and deal with money judgement matters.

 

3.I would have thought that the issuer that has sold its mortgage portfolio would have no right to chase a former mortgage payer for a shortfall after sale as there is no privity of contract and that right has been sold onto to the trustees or 50 other companies(if you what I mean so that the true owner(s) would never be known) that have acquired those rights under the terms and conditions of the securtisation transaction.

 

4.Finally,remember that the fact that anybody that has his/her their mortgage securitised would not have knowledge of this from the company(Issuer in securitisation jargon) that granted the 25 year mortgage and thus it be in breach of contract in which the remedy would be to rescind the contract i.e. cancel on part of the borrower and damages granted for that breach as it would be too late to "not sign on the dotted line".In many cases,it is only found out post repossession and even sale with a shortfall.

 

5.Personally,I have a feeling that these companies have covered themselves regarding repos.However,of course this does not mean that these matters cannot be challenged in a court of law.

 

Anyway,just my 2p's worth based on my various readings into this subject plus very valuable contributions from other CAGger members.

Edited March 17, 2009 by Nightmare4banks

[Smarterchick]

Now, I've found this little sentence in the depths of a document produced by an SPV. What do you think this below means legally?:

 

"As at 31 December 2004, the book value of residential mortgage loans that Abbey National Plc had assigned legal title to the Company was £29.1 billion (2003: £23.2 billion).

On 1 April 2004 Holmes Funding Limited purchased a further share in the beneficial interest in the trust property from Abbey National plc of £4.0 billion (2003: £2.4 billion). The purchase was financed by the issue of UK sterling, US Dollar and Euro denominated loan notes to the value of £4.0 billion by another group company, Holmes Financing (No 8) plc. "

Where does this put the mortgage ownership - with the Abbey - or with the SPV when it comes to who repossesses who in court if someones mortgage is in this batch?

P.S. This is just an example, I have no claim against Abbey....

[bustthematrix]

Good digging Smarterchick

 

All the best with your efforts. Have you read Supersleuth's posts on the Securitisation - Preferred forum? He's written extensively about the sleight of hand involved with legal and equitable transfers of title.

 

rgds

V

[Smarterchick]

Yes, watching all these threads. Got your PM..no further yet, but on the case..

[tifo]

Some info here from Holmes Financing (No 5) and Abbey. My mortgage is with Abbey so this is of interest to me.

 

http://www.aboutabbey.com/csgs/StaticBS?blobcol=urldata&blobheader=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1118928215345&cachecontrol=immediate&ssbinary=true&maxage=3600

Edited March 24, 2009 by tifo

[Last of the Mohicans]

Just chucking something I found last night while Googling Smarterchick. Thought it might be of interest: Land Registry Searches FAQs - How do I obtain a list of all the properties owned by an individual or company in England & Wales and obtain copies of the relevant property registers.

 

Is there a Scottish or Northern Irish securitised mortgage holder in the house?

[tifo]

Now, I've found this little sentence in the depths of a document produced by an SPV. What do you think this below means legally?:

 

"As at 31 December 2004, the book value of residential mortgage loans that Abbey National Plc had assigned legal title to the Company was £29.1 billion (2003: £23.2 billion).

On 1 April 2004 Holmes Funding Limited purchased a further share in the beneficial interest in the trust property from Abbey National plc of £4.0 billion (2003: £2.4 billion). The purchase was financed by the issue of UK sterling, US Dollar and Euro denominated loan notes to the value of £4.0 billion by another group company, Holmes Financing (No 8) plc. "

 

Where does this put the mortgage ownership - with the Abbey - or with the SPV when it comes to who repossesses who in court if someones mortgage is in this batch?

 

 

P.S. This is just an example, I have no claim against Abbey....

 

To add to the above ...

 

Principal activity and review of the year

The principal activity of the Company is to hold the legal interest in certain property on trust absolutely for the beneficial owners of that property.

The trust property comprises a portfolio of mortgage loans secured on residential property in England, Scotland and Wales, interest and principal paid by borrowers on those loans, and all other amounts received under the loans.

The beneficial owners of the trust property are Abbey National plc, the originators of the trust property, and Holmes Funding Limited, a group company. The Company has no beneficial interest in the trust property.

All income from the trust property is distributed to the beneficial owners in proportion to their share of the trust property owned.

No future changes in activity are envisaged.

[tifo]

Just chucking something I found last night while Googling Smarterchick. Thought it might be of interest: Land Registry Searches FAQs - How do I obtain a list of all the properties owned by an individual or company in England & Wales and obtain copies of the relevant property registers.

 

We can't use it .... i assume by 'owner' they don't mean us?

 

The register of properties held here is not a public register and can only be made if one of the following criteria are met:

 

The applicant can provide a letter signed by the owner authorising the search

The applicant has a court order authorising the search

The applicant has a power of attorney to act on behalf of the owner

The applicant is a trustee on behalf of the owner

The applicant has a bankruptcy order against the owner

[enoughisenough]

AND...

 

Although the loans have been assigned to the mortgages trustee, the seller continues to perform

administration and servicing functions in respect of the loans on behalf of the mortgages trustee and

the bene®ciaries, including collecting payments under the loans and taking steps to recover arrears.

The seller may not resign as servicer unless a successor servicer has been appointed.

 

 

Is this the real reason behind the banking bailout?

[tifo]

Is this the real reason behind the banking bailout?

 

Yep, the SPV's seem to have been paid out and the 'toxic debts' are the mortgaged mortgages which the taxpayer now owns ....

 

So, we own the banks and our mortgages as well as the mortgages on that

[tifo]

abbey and holmes financing no 1 - 4 report ... page 3 lists reposessions.

 

http://www.aboutabbey.com/csgs/StaticBS?blobcol=urldata&blobheader=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1118928834261&cachecontrol=immediate&ssbinary=true&maxage=3600

[tifo]

Is this the real reason behind the banking bailout?

 

Extract from here REG-Holmes Finance (No.7) PLC Full Early Redemption | Reuters

 

The SPV's want their money back ...

 

NOTICE IS HEREBY GIVEN to the holders of Series 4 Seventh Issuer Notes that,pursuant to Condition 5(D)(i) of the Series 4 Seventh Issuer Notes, Holmes Financing (No.7) PLC (the "Seventh Issuer") will redeem all of the Series 4 Seventh Issuer Notes at their Principal Amount Outstanding together with any accrued interest thereon on 15 April 2008.

[Last of the Mohicans]

We can't use it .... i assume by 'owner' they don't mean us?

 

 

Well, leaving aside the injustice of it all - which I agree with - note that Scottish or Northern Irish mortgagers CAN use it least ways, thats how I read it!

 

PS: I'll butt out - you peeps are on a roll

[tifo]

This is from an Abbey prospectus from Oct 1999 which is the year i got my mortgage ...

 

Registered Land

 

At the time ANPLC sells Loans, the Mortgages in relation to which are secured over registered land to the Issuer, ANPLC may not possess all the title numbers of the properties which are the subject of the individual Mortgages. ANPLC has given an undertaking to use all reasonable efforts to obtain the title numbers as soon as practicable and in any event, in the case of Mortgages in the Initial Portfolio, on or prior to the Interest Payment Date falling in November 2000 and, in the case of Mortgages which relate to Replenishment Loans, on or prior to the first anniversary of the Interest Payment Date on which the relevant Replenishment Loans are purchased from ANPLC (unless the Trustee agrees to an extension). If the Trustee were required to enforce its security, there might be some delay in it being able to do so since it would first have to register its interest at H.M. Land Registry and to do so it would first have to obtain any outstanding title numbers.

[bustthematrix]

AND...

 

The seller may not resign as servicer unless a successor servicer has been appointed.

 

Is this the real reason behind the banking bailout?

 

The above discoveries don't seem like great outcomes for us. Looks like the big boys have covered all the angles. They were more thorough here than their US counterparts it looks like. Or am I mistaken and all this is still part of the smokescreen?

[bustthematrix]

Hello All

I've been somewhat naughty by not coming back to update these posts! I only recently came back to CAG on another thread! Not great I know but I'm sure there's forgiveness out there?

Anyway, sometime in summer last year (2008), I got something of a result! I was formerly on Band F and I appealed to be rebanded to D. In the end I got rebanded to E and had huge swathes of outstanding Council tax sliced off. I did not want to bother fighting it down to band D so I've left it as it is.

Not the result I wanted but a good win anyway. Thanks all for all your past support!

[Smarterchick]

Hello All

 

I've been somewhat naughty by not coming back to update these posts! I only recently came back to CAG on another thread! Not great I know but I'm sure there's forgiveness out there?

 

Anyway, sometime in summer last year (2008), I got something of a result! I was formerly on Band F and I appealed to be rebanded to D. In the end I got rebanded to E and had huge swathes of outstanding Council tax sliced off. I did not want to bother fighting it down to band D so I've left it as it is.

 

Not the result I wanted but a good win anyway. Thanks all for all your past support!

 

hey, that's good news, well done. Changing CT bands is not easy so even more a successful.

 

Now you're back, we can use every hand on deck for the juicy stuff!