Mortgage Securitisation - Paragon V Pender Title to Sue Judgements - For Debate & Discussion

[Suetonius]

First a quick history lesson

 

5th January 1995, an order of possession was granted to Paragon Finance

 

21st January 2002, Mr & Mrs Pender applied unsuccessfully for a set aside

 

9th January 2003, oral application for appeal dismissed

 

17th February 2003, stay of execution granted

 

25th November 2003, application for permission to appeal

 

29th July 2004, limited permission to appeal granted

"On 29 July 2004 Jacob LJ granted permission to appeal to this court on the three issues raised in Mr Aaron's witness statement, viz: the title to sue issue, the implied obligation issue, and the extortionate credit bargain issue. He refused permission to appeal on the human rights issue."

 

27th June 2005, Appeal heard

 

2005 judgements, for discussion and debate:

 

The Title to sue

 

1) In my judgment Mr and Mrs Pender's case on this issue is misconceived. It is common ground that Paragon, as registered proprietor of the Legal Charge, retains legal ownership of it. One incident of its legal ownership – and an essential one at that – is the right to possession of the mortgaged property. I can see no basis upon which it can be contended that an uncompleted agreement to transfer the Legal Charge to the SPV (that is to say an agreement under which, pending completion, the SPV has no more than an equitable interest in the mortgage) can operate in law to divest Paragon of an essential incident of its legal ownership. In my judgment as a matter of principle the right to possession conferred by the Legal Charge remains exercisable by Paragon as the legal owner of the Legal Charge (i.e. as the registered proprietor of it), notwithstanding that Paragon may have transferred the beneficial ownership of the Legal Charge to the SPV.

 

2) It follows, in my judgment, that Paragon, so long as it remains the registered proprietor of the Legal Charge, is a necessary party to any claim to possession of the Property in right of the Legal Charge.

 

3) The only question then is whether the SPV should have been joined in the proceedings as an additional claimant. In my judgment, the answer to that question is plainly: No. On the assumption that the consideration for the transfer of the Legal Charge has been paid in full, Paragon has since retained its legal ownership of the Legal Charge as trustee for the SPV (see Whiteley v. Delaney [1914] AC 132 at 141 per Viscount Haldane LC). But it does not follow that in that situation the SPV, as the owner of the Legal Charge in equity, is a necessary party to the claim; and on the facts of the instant case joinder of the SPV is wholly unnecessary. There is, after all, no issue between the SPV and Paragon as to the exercise of the mortgagee's rights under the Legal Charge: indeed the SPV has, by virtue of the administration agreements, expressly authorised Paragon to exercise such rights on its behalf.

 

4) In my judgment, therefore, there is no substance in the contention that the SPV should have been joined as an additional claimant in the proceedings. Nor, in my judgment, can the fact that Paragon has failed to describe itself as suing in its capacity as trustee affect the validity of the proceedings or of the orders made in the proceedings (in particular, the possession order). In any event, even if that failure could be said to amount to a formal defect in the proceedings (and I do not regard it as such) the court has ample powers under the CPR to correct such defects (e.g. under CPR Pt 17).

 

5) In my judgment Mr Page's reliance on section 114 of the Law of the Property Act 1925 is wholly misplaced, for the reason which the judge gave: viz. that section 114 is concerned with transfers of mortgages of unregistered land (transfers of mortgages of registered land being dealt with by section 33 of the Land Registration Act 1925). To interpret section 114 as applying also to transfers of mortgages of registered land would produce a fundamental and wholly illogical conflict between the two regimes in relation to transfers of mortgages. Bearing in mind what Lord Oliver of Aylmerton said in Flegg (quoted in paragraph 85 above), I can see no conceivable basis for interpreting section 114 in a way which produces that result and every reason for not doing so. Accordingly I respectfully agree with the observations of this court in Marks with reference to the instant case (see paragraph 95 above).

 

6) Nor, in my judgment, can Mr Page find any support for his submission in the Land Registration Act 2002, or in the Law Commission Report which preceded it. In my judgment it is verging on the absurd to seek to interpret a provision in a statute by reference to a provision in a different statute enacted some eighty years later.

 

In any event, I agree with the judge that the administration agreements demonstrate a clear contrary intention, sufficient to disapply section 114 if (contrary to the conclusion which I have just expressed) the section would otherwise apply.

 

7) 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]

Hi Sue (once again welcome back!)

 

Can't see anything wrong with your summary but of course I'll need to read the whole judgment again to see any remaining light from our end of the tunnel.Can't remember there being a whole lot though, except that were errors in law which seem to have got overlooked. Also Pender's representation was pretty much shredded by the CA.

 

The 2005 case was a CA case and so it is possible that in a CC/high court case going against anyone being stripped of their home potentially unlawfully, the leapfrog procedure could be used insofar as the CA is bound by its own previous decision. Or it could distinguish. So Pender at the CA in my opinion does not close the door permanently and finally on this stuff.

 

I disagree with Paragon's right to bring the case having sold the mortgage on. This has of course been dealt with extensively on other threads. I understand the arguments. What puzzles me and again no-one needs to respond because I'm sure I can remind myself by reading through the decision, is this. Why oh why did Paragon not then just repossess back in 1995. Did they just quietly forget?

 

Sorry I know I should have read back up first but I haven't. Will do so soon but have been absolutely shafted by the court saying at hearing 28 days was fine for submissions (not a repo case but something else) only to get directions stating next Friday. Bloody hell. How many more stunts can be pulled?

 

Cheers Keep the faith EIE.

[Suetonius]

The 2005 case was a CA case and so it is possible that in a CC/high court case going against anyone being stripped of their home potentially unlawfully, the leapfrog procedure could be used insofar as the CA is bound by its own previous decision. Or it could distinguish. So Pender at the CA in my opinion does not close the door permanently and finally on this stuff.

 

The doctrine of judicial precedent involves application of the principle of "stare decisis", which means to 'stand by cases already decided'. Decisions made in the House of Lords bind all courts in the Country except the House itself. The House of Lords will usually follow its own decisions but will depart where it seems right to do so.

 

Decisions made in the Court of Appeal bind courts below it and usually bind itself, unless its own previous decisions conflict, are incompatible with a decision made in the House of Lords even if not expressly overruled, or were made "per incuriam" (by mistake). The precedent is followed less rigidly in the criminal division where a person's liberty is at stake.

 

It is the "ratio decidendi" of a case which gives the principle of law that becomes binding under the doctrine of judicial precedent. "Ratio Decidendi" is a latin phrase meaning 'the reason for the decision'. It refers to the way a court reasons and applies the law in order to come to a particular decision. The ratio of a case will only be binding on a later case where the legal principle involved is the same and the facts are sufficiently similar. Any other reasoning within the case is said to be "obiter dicta", meaning 'by the way'.

 

Comments made "obiter dicta", together with decisions of lower courts, dissenting judgements, legal journals and text books, roman law, and decisions of courts in Scotland, Ireland, the Comnwealth and the USA may all be persuasive precedent. Persuasive precedent is not binding but may be considered, particularly where there is no authority on the point of law.

 

Terms

Stare decisis

 

Per incuriam

 

Ratio decidendi

 

Obiter dicta

 

Example of cases, which applied the decisions of Paragon v Pender

 

Credit & Mercantile Plc V Felician Marks [2004] EWCA Civ 568

 

Ford Camber Ltd V Deanminster Ltd & Anor [2006] EWCH 1961 (ch)

 

Meretz Investments NV & Anor v ACP Ltd & Ors [2006] EWHC 74 (Ch)

Edited May 1, 2009 by Suetonius

[Suetonius]

My personal view is that the Land Registration Act 2002 is something that could be used. However, an argumment would have to be constructed.

 

This is something that can be used, as it was not taken into consideration, in the judgements/decisions of the pender case

Edited May 1, 2009 by Suetonius

[Suetonius]

What puzzles me and again no-one needs to respond because I'm sure I can remind myself by reading through the decision, is this. Why oh why did Paragon not then just repossess back in 1995. Did they just quietly forget?

 

Firstly good luck with your case.

 

Secondly, it would appear that following the making of the possession order Mr & Mrs P made regular monthly payments. However, these payments became smaller and smaller. As the payments decreased, the level of arrears increased, until May 2000, when payments ceased.

 

In July 2000, Paragon issued a warrant for possession. This forced Mr & Mrs P to apply for a stay of the possession, which then lead onto the subsequent cases.

[enoughisenough]

Hi Suetonius

 

Thanks for the response

 

You don't need to give me the Obiter Dicta and ratio decidendi or stare decisis stuff. I know this stuff already but try not to say it openly. Your assessment of the difference between the civil and criminal division in following what has already been decided in the CA is spot on.

 

Of course there should be more latitude in the criminal division. We could also take Denning's view, 'bitch slapped' though he was for it, and argue that the CA civil division should have similar latitude. This is of course irrelevant since it does not - but tolerance is nonetheless built in so that previous CA decisions are not absolute. And I still think Pender is a rotten basis for saying the arguments cannot be made and would not be heard and would not could not win.

 

That's my view. Once again welcome back and please never ever take my legitimate though sometimes emotive responses as a personal attack on yourself. You add SO much value to this debate and I'm grateful that JonCris (I think!) recommended this thread be set up. A splendid idea!

 

KTF. Cheers EIE.

 

Keep up the sterling work.

 

Cheers EIE.

 

I just think that the Pender's were chancing and most of us now are being chanced by the Sub prime providers. I have demonstrably false erroneous accounting apperaring my statements. I reiterate - demonstrably false.

 

But your other stuff pertaining to the pender case is useful. It is

[Suetonius]

First a quick history lesson

 

5th January 1995, an order of possession was granted to Paragon Finance

 

21st January 2002, Mr & Mrs Pender applied unsuccessfully for a set aside

 

9th January 2003, oral application for appeal dismissed

 

17th February 2003, stay of execution granted

 

25th November 2003, application for permission to appeal

 

29th July 2004, limited permission to appeal granted

"On 29 July 2004 Jacob LJ granted permission to appeal to this court on the three issues raised in Mr Aaron's witness statement, viz: the title to sue issue, the implied obligation issue, and the extortionate credit bargain issue. He refused permission to appeal on the human rights issue."

 

27th June 2005, Appeal heard

 

 

Some people may not be aware that the Court of Appeal case in 2005, was not the final chapter. On 31 January 2006, a petition to appeal was submitted to the House of Lords. The House of Lords refused to give leave to appeal.

[Suetonius]

Hi Suetonius

 

Thanks for the response

 

You don't need to give me the Obiter Dicta and ratio decidendi or stare decisis stuff. I know this stuff already but try not to say it openly. Your assessment of the difference between the civil and criminal division in following what has already been decided in the CA is spot on.

 

Hello EIE, the explanations are intended for anyone that reads this thread. Lawyers and Barristers hide behind terminolgy, I am attempting to clear the mist, by explaining what these words mean to everyone.

 

As they say, information is power

[Suetonius]

Not a judgement or a decision, but an extract from Pender for debate and discussion:

 

"As Dr Eilis Ferran MA (presently Reader in Corporate Law and Financial Regulation at Cambridge University) points out in a book entitled 'Mortgage Securitisation – Legal Aspects' (Butterworths, 1992) to which we were helpfully referred by Mr Ali Malek QC (for Paragon) in the course of argument, if the transfer of the mortgages is not completed by registration, the SPV acquires an equitable title to the mortgage but the transferor retains the legal title, albeit as trustee for the SPV (assuming, as will usually be the case, that the full consideration has been paid). Dr Ferran goes on to point out that, for reasons essentially of administrative convenience and cost, transfers by way of securitisation are usually left uncompleted, but with provision being made for completion in certain specified circumstances, e.g. if the transferor persistently defaults on its obligations under the securitisation arrangements. Typically, such obligations will be contained in an 'administration agreement' between the transferor and the SPV. These general observations about securitisation (for which I am indebted principally to Dr Ferran's book) are not the subject of dispute in the instant case."

 

To place the above extract into context, Dr Eilis Ferran is a Professor of Company and Securities Law at the University of Cambridge:

As you would anticipate with someone with her credentials, she is published:

'The Place for Creditor Protection on the Agenda for Modernisaiton of Company law in the European Union' (2006) 3 European Company and Financial Law Review 178

'Transatlantic Financial Services Regulatory Dialogue' (with K Alexander, HE Jackson and N Moloney) (forthcoming European Business Organization Law Review Building an EU Securities Market (CUP, 2004)

'Financial Assistance: Changing Policy Perceptions but Static Law' [2004] Cambridge Law Journal 225 - 243

'The Role of the Shareholder in Internal Corporate Governance: Enabling Shareholders to Make Better-informed Decisions' [2003] European Business Organization Law Review 491 - 516

'Examining the UK Experience in Adopting the Single Financial Regulator Model' (2003) 28 Brooklyn Journal of International Law 257-307

'Dispute Resolution Mechanisms in the UK Financial Sector' [2002] Civil Justice Quarterly 135-155 (also published in a report to the Korean Stock Exchange, Self-Regulation in the Korean Securities Market Korean Securities Law Association, 2002)

'Corporate Law Codes and Social Norms - Finding the Right Regulatory Combination and Institutional Structure' [2001] Journal of Corporate Law Studies 381-409

Ferran and Goodhart (eds) The Challenges Facing Financial Regulation (Hart Publishing, 2001)

'Company Law Reform in the UK' (2001) 5 Singapore Journal of International and Comparative Law 516-568

Boyle and Birds Company Law (Jordans, 2000) (with Boyle, Birds and Villiers)

Company Law and Corporate Finance (OUP, 1999)

 

Employment History:

Reader in Corporate Law and Financial Regulation (2000 – 2005)

University Lecturer, (1991 – 2000)

University Assistant Lecturer, (1988–1991)

Director of the Centre for Corporate and Commercial Law, (April 1999 – September 2003)

Assistant Director, Centre for Corporate and Commercial Law, (1997–1999)

College Lecturer, St Catharine’s College, Cambridge (1986–1988 )

Trainee Solicitor, Clifford Chance, solicitors (1984–1986)

 

Qualifications

PhD, University of Cambridge, 1992, (by special regulations)

BA, University of Cambridge 1983 (Law Tripos First Class with Distinction)

Edited May 2, 2009 by Suetonius

[enoughisenough]

Hi Suetonius

 

I am one of those 'some people'.

 

otwithstanding this I have argued from the beginning that the Pender's case was fatally flawed and not in any case presented, irrespective of the flaws, with any real conviction. Since the HOL refused leave to appeal, these matters are not and have not been subject to final settlement by the law lords.

 

Other cases could still succeed. I doubt the banks would have just skulked off home and started paying out on all the stayed cases if the HOL had refused their leave of appeal, after the CA had told them there were no reasonable chances of success and had refused to grant leave.

 

So my argument is, and stands, there has been no proper testing of these issues and no final determination.

 

Cheers EIE.

[enoughisenough]

RE Your post regarding terminology. Granted and accepted!

 

You are posting with a vengeance tonight! I still have 2 more to read but unfortunately for a bank holiday weekend I still have to work so it's goodnight from me I'm afraid.

 

I expect this thread will have mushroomed the next time i check in!

 

Cheers Suetonius and in case you missed it welcome back on board!

 

EIE.

[Suetonius]

Hi Suetonius

 

I am one of those 'some people'.

 

otwithstanding this I have argued from the beginning that the Pender's case was fatally flawed and not in any case presented, irrespective of the flaws, with any real conviction. Since the HOL refused leave to appeal, these matters are not and have not been subject to final settlement by the law lords.

 

Other cases could still succeed. I doubt the banks would have just skulked off home and started paying out on all the stayed cases if the HOL had refused their leave of appeal, after the CA had told them there were no reasonable chances of success and had refused to grant leave.

 

So my argument is, and stands, there has been no proper testing of these issues and no final determination.

 

Cheers EIE.

 

With regard to the final chapter, I was only refering to the Pender proceedings and not the actual legal argument with regard to securitisation

[spartathisis]

Out of interest, is there a big difference in the way credit cards are securitised? Do the same arguments apply?

 

I would be interested to read your views on this article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=883300

 

I recently asked a DCA`s solicitor to confirm that a CC debt had not been securitised before they purchased the account. The reply was this does not apply and we dont have to prove anything to you!

[enoughisenough]

Yes what a surpise.

 

DCA's are lower than shark sh*t. and their solicitor is yet another example of an LLb. (lying legal bast*rd.)

 

Put them strict proof on the ownership and watch them run off boo hoo hooing about all it's all so unfair. Playground bullies don't like being stood up to and that's all they are.

[supersleuth]

Hi Spartathisis,

 

The Pender argument is specific to Real Property. There are specific laws that govern the Law of Property and accordingly, the arguments do not apply to credit card securitisations.

 

On the other hand with respect to simple contracts i.e. credit card debt:

 

the DCA's solicitor saying that they do not need to prove anything to YOU - well - they are full of popycock (would prefer to use a less polite word there!). If they want to sue you for recovery of a debt -they must prove they LEGALLY OWN the debt - so they do HAVE to PROVE they OWN the debt and are entitled to recover money from you. Put them to STRICT PROOF of everything.

 

If they say they "purchased" your account - what they are saying is that the original lender assigned your debt to them. Therefore, there is an assignment. Thus, if the DCA are to recover money from YOU - the DCA must first show that the original agreement between you and the lender was legal, valid and enforceable (check the CCAs 1974 and 2006) and if the original contract was legal and enforceable then the DCA must show that it has a LEGAL AND VALID assignment from the original lender in order to sue you as an assingee under that contract. BTW did you ever receive a letter from your original lender telling you that the DCA now OWNED you debt - and if not (as I suspect is the case) HOW are you supposed to know and be sure that the DCA is bona fide demanding money from you?

 

So in a sense there are some similarities, however the Pender case is really about the Registered owner of the debt (whether lawfully or unlawfully registered) - and as there's no need to register credit card debts anywhere, the Pender case is no applicable to credit card securitisation.

Edited May 2, 2009 by supersleuth

[Suetonius]

Good Morning, I really want to try and limit this thread to Pender, as there are now numerous other threads in relation to securitisation.

 

However,

 

Out of interest, is there a big difference in the way credit cards are securitised? Do the same arguments apply?

 

I would be interested to read your views on this article: SSRN-Securitization is Illegal: RICO, Usury, Antitrust, and Tax Issues by Michael Nwogugu

 

I recently asked a DCA`s solicitor to confirm that a CC debt had not been securitised before they purchased the account. The reply was this does not apply and we dont have to prove anything to you!

 

 

1) Her Majesty's Revenue & Customs (HRMC)

 

Securitisation is a method of raising finance on the capital markets at advantageous rates of interest. Types of businesses likely to use securitisation are financial institutions, insurance companies, trading companies and any other type of business with a regular source of income. If these bodies borrow money from a bank the rate of interest charged will depend on their credit worthiness. Securitisation involves the transfer of their income into a separate trust. This enables money to be borrowed against the security of the income stream in such a way that, if the company goes bankrupt, the investor will still be repaid.

 

In the case of credit card securitisations, the arrangement involves the establishment of a receivables trust, often in Jersey (receivables are the payments due to the credit card company from its customers, including repayment of the principal on a loan or credit arrangement. This can also apply to interchange commission paid by the retailer).

 

"The credit card company transfers the beneficial interest (not the legal interest) in the receivables on a block of accounts to the trust. This is done in return for payment of the principal amount of credit provided plus a proportion of the interest due (known as the excess spread). A separate company is then set up to issue debt securities on to the capital markets to third party investors. The issuer contributes the funds received from investors to trust assets and later receives funds from the trust as necessary when payments of interest and repayments of principal fall due to investors. In the meantime, the credit card company uses the funds received from the investors to fund its business."

 

Her Majesty's Revenue & Customs confirm that (in relation to credit cards) it is only the beneficial interest and not the legal interest that is transfered.

2) Capital One tribunial

 

 

 

3) MBNA Case

 

"57. The recitals to the RSD refer to the Transferor and Receivables Trustee (MBNA and CCSE respectively) having agreed that for the purposes of facilitating a possible securitisation, the Transferor may from time to time offer to assign all Receivables (existing and future) arising on such accounts of its credit card customers as are nominated to become Designated Accounts. It is acknowledged that upon acceptance of such an offer to assign by the Receivables Trustee, the Receivables will be assigned by way of equitable assignment only unless notice of assignment should later be given. It is also expressly contemplated by the recitals that the Receivables Trustee will appoint the Operating Party for the purpose of giving instructions in relation to any available discretion capable of being exercised by the Receivables Trustee upon the terms of a separate agreement described as the "RT Operating Agreement"."

 

 

Can we please try and keep this thread specifically on the named topic of Pender.

 

Here are some of the other threads in relation to securitisation.

 

http://www.consumeractiongroup.co.uk/forum/mortgages-secured-loans/175426-mortgage-securitisation-preferred.html

 

http://www.consumeractiongroup.co.uk/forum/mortgages-secured-loans/170607-spml-london-mortgage-company.html

 

http://www.consumeractiongroup.co.uk/forum/mortgages-secured-loans/186867-carmel-butler-house-commons.html

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[supersleuth]

Suetonius,

 

Spartathisis asked a reasonable question as to the applicability of the Pender case to credit cards - this therefore constitutes a part of this debate ON the Pender case. The principle of assignment IS the same. If the DCA wants to sue for a debt then it MUST prove it has a legal assignment on which it can sue the borrower as an assignee. Therefore the equitable/legal title issue is not in question here - either the DCA HAS THE LEGAL TITLE to sue the borrower or it does not.

 

Moreover, you cite cases involving the TAX man - as you said yourself - the "state decisis" doctrine only applies where the facts of the case are similar which should lead to the same decision. Cases brought by the TAX MAN against the banks HAVE NO similar facts such that they can be case law cited against a BORROWER. The sections you cite are mere "obiter" and "obiter" IS NOT LAW!

[Suetonius]

Suetonius,

 

Spartathisis asked a reasonable question as to the applicability of the Pender case to credit cards - this therefore constitutes a part of this debate ON the Pender case. The principle of assignment IS the same. If the DCA wants to sue for a debt then it MUST prove it has a legal assignment on which it can sue the borrower as an assignee. Therefore the equitable/legal title issue is not in question here - either the DCA HAS THE LEGAL TITLE to sue the borrower or it does not.

 

Moreover, you cite cases involving the TAX man - as you said yourself - the "state decisis" doctrine only applies where the facts of the case are similar which should lead to the same decision. Cases brought by the TAX MAN against the banks HAVE NO similar facts such that they can be case law cited against a BORROWER. The sections you cite are mere "obiter" and "obiter" IS NOT LAW!

 

Hello SS, a pleasure to be debating with you again

[supersleuth]

Hey Suetonius

 

Good to have you back too.

[Suetonius]

Suetonius,

 

Spartathisis asked a reasonable question as to the applicability of the Pender case to credit cards - this therefore constitutes a part of this debate ON the Pender case. The principle of assignment IS the same. If the DCA wants to sue for a debt then it MUST prove it has a legal assignment on which it can sue the borrower as an assignee. Therefore the equitable/legal title issue is not in question here - either the DCA HAS THE LEGAL TITLE to sue the borrower or it does not.

 

Moreover, you cite cases involving the TAX man - as you said yourself - the "state decisis" doctrine only applies where the facts of the case are similar which should lead to the same decision. Cases brought by the TAX MAN against the banks HAVE NO similar facts such that they can be case law cited against a BORROWER. The sections you cite are mere "obiter" and "obiter" IS NOT LAW!

 

Without wishing to degress from the topic of Pender, I do have a "little" experience of the assignment of debts to DCA's.

 

This scenario differs greatly, as DCA's tend to send what is generally called "goodbye letters", with their initial "hello letter".

 

The "goodbye letter" is reportedly to have been written by the assignor and is even printed on the letterheaded paper of the assignor. People familar with DCA's have obtained evidence which has in years gone by been posted on CAG to show that the "goodbye letters" are in fact produced and printed by the DCA and not under the hand of the assignor.

 

It could be argued that the "goodbye letter" (but I would and have argued that it isn't) is a notice of assignment, as required by s.136 of the LOP, which is something that does not always appear to be sent when a mortgage is securitisatised.

 

On the contrary the securitisation of a mortgage is normally never disclosed to a borrower.

[Suetonius]

Hey Suetonius

 

Good to have you back too.

 

It is only a flying visit. I noticed that noone had mentioned the report published yesterday by the Treasury Select Committee, which refered to securitisation and I just wanted to bring it to everyones attention.

 

Whilst reading, I noticed that JC and PT both suggested creating a thread to discuss pender but I could not see that one had been created.

 

As it would appear that people are willing to brush pender aside without explanation, I thought it would be beneficial to create such a thread to discuss and debate the merits of the judgements / decisions.

 

I am now off to enjoy the sun, everyone have a good bank holiday weekend

[supersleuth]

Hi Suetonius,

 

Don't understand why you keep saying "it would appear that people are willing to brush pender aside without explanation".

 

It doesn't appear to me that anyone has brushed Pender aside. It may be that you want an explanation that satisfies you, and it may be that an explanation exists that may satisfy you - BUT the timing may not be right to explain it to you on a public forum at the moment. Time will tell.

 

In the meantime, someone on this thread may be able to offer you a satisfactory explanation, so we'll just have to wait and see what others may come up with.

[Suetonius]

Hi Suetonius,

 

Don't understand why you keep saying "it would appear that people are willing to brush pender aside without explanation".

 

It doesn't appear to me that anyone has brushed Pender aside.

 

let me see, if I can help you understand Supersleuth. It would appear that pender has not been debated, at least publically on this forum or other consumer help forums that I also post on.

 

Furthermore the reason I say that people are willing to brush pender aside is because:

 

Hi

 

Re The Paragon v Pender case

 

Do not dispair - this case is not as bad as you think!!

 

The Penders were trying to appeal against a judgement that had been entered against them 7 years earlier. There are strict time limits for appeal against judgement usually 21 days. Therefore they had to apply to the court for PERMISSION to appeal out of time. The lower-court refused them the permission to appeal out of time. So they appealled to the Court of Appeal against that decision (i.e. the lower court's refusal to allow them to appeal out of time).

 

Therefore, whilst the case looks as if totally stuffs all borrowers, the case is actually taken out of context. When the court is deciding whether to allow permission to appeal, the standard on which they judge is the summary judgment standard. This means that the court has to decide whether they have "a prospect of success". Given that the judgement was 7 years old the court decided that they didn't have a "prospect of success" and so DID NOT GRANT THEM PERMISSION TO APPEAL.

 

Therefore, there was NO APPEAL. Whilst the judgment goes into all sorts of reasoning that seems to go against all borrowers, the case can be distinguished on the fact that it was only a SUMMARY JUDGEMENT standard and it was A PERMISSION TO APPEAL hearing.

 

Consequently, I am sorry that that this case has been successfully used and abused by the lender to defeat Londres but it does not change the fact that the case has been misapplied against Londres. My lender tried to intimidate me with this case too. It is the ONLY case the lenders have to assert and on a proper reading, it is not case precedent that can be used in accordance with the doctrine of stare decisis. Although I acknowledge that it is misused against unrepresented litigants who will find it next to impossible to argue against.

 

Supersleuth

 

 

Hi Scedemin,

 

You have identified a major crux of the matter and there is deep technical legal issues here. It is a major part of my case.

 

The Paragon v Pender case is usually hauled out by these theives because (1) the case is a court of appeal case, (2) the county court judges don't have time to really read the case and because (3) the defendants are not legally represented (and quite frankly even if a defendant does have a solicitor, they often kow-tow to the banks anyway as they really want the banks as their client and/or they are just plain lazy and incompetent) - it all adds up to the Pender case being mis understood and mis-applied by the county courts.

 

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.

 

The Pender's wanted to appeal against a judgement that was SEVEN YEARS OLD. The Pender's had a suspended possession order made against them seven years previously. At the time of the suspended possession order, the Pender's had escaped evicition because they had made the payments and then kept the account up to date. Then, some years down the line, they must have missed a couple of payments. Paragon then used the suspended possession order and asked the court for possession. Naturally, the Pender's were shocked at this development because, after seven years, they had forgot about the original order. Thus, the Pender's wanted the court to give them permission to appeal against an order which is 7 years old. There are strict time limits as to appealing a court decision usually you must start your appeal within a couple of weeks. If you don't make your appeal promptly, then you have to ask the court for permission to appeal out of time (i.e outside of the time limit).

The Pender's were refused permission to make an appeal out of time (because it was more than 7 years out of time).

 

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).

 

The substantive issues in the Pender case were not heard at a TRIAL. Consequently, the issues have never had the benefit of a real hearing, a real trial, with full disclosure, cross-examination etc., because the court would NOT allow the Pender's the permission to have the trial: which means that the case is NOT precendent for the banks. Also note that there was only one court of appeal judge in that case and quite frankly he got it his reasoning wrong as a matter of law, but as the real issue in the pender case was whether to grant permission to appeal against a seven-year-old judgement, that is all that the case stands for.

 

Supersleuth

 

SBT you refer to the Pender case as has sue. - As SS has explained Pender is NOT precedent it's a summary judgment. It was an action seeking to appeal against a refusal of the lower court to allow a very old CCJ to be set -aside - The court discussed the merits of the appeal in the context if the case was heard again did it have merit & the court thought perhaps not What the court DID NOT do was form a binding judgment - However as with Rankine lenders have used it successfully to bamboozle the LiP's & I must regrettably say also the courts

 

You have personally previously stated that:

 

1) DID NOT GRANT THEM PERMISSION TO APPEAL.

2) there was NO APPEAL

3)A PERMISSION TO APPEAL hearing

4) The Pender's were refused permission to make an appeal out of time

 

And JonCris has stated:

 

1) It was an action seeking to appeal

 

I consider that the above observations are incorrect. I say this because as I have previously posted:

 

29th July 2004, limited permission to appeal granted

"On 29 July 2004 Jacob LJ granted permission to appeal to this court on the three issues raised in Mr Aaron's witness statement, viz: the title to sue issue, the implied obligation issue, and the extortionate credit bargain issue. He refused permission to appeal on the human rights issue."

 

27th June 2005, Appeal heard

 

Permission to appeal on the title to sue issue was in fact granted and subsequently heard.

 

This is further confirmed by the first four words of the 2005 case.

 

"This is an appeal"

 

It would appear that there is a great deal of misunderstanding with regard to the pender proceedings.

 

I find it strange that this case is not debated, especially given its relevance to securitisation and the title to sue issue. There are numerous posts on the securisation threads, that say the judgements are flawed etc. But no debate or explanation as to why.

Edited May 2, 2009 by Suetonius

[supersleuth]

Suetonius,

 

You seem to think that there's a lot of people who "misunderstand" the Pender case. The presumption behind your statement is of course that you completely UNDERSTAND the case. On that point - how about you explain your understanding of the Pender case and then people may have an opportunity to explain why your "understanding" may in fact be a "misunderstanding".

 

As for people who say that the judgments are flawed etc., but don't explain why - why don't you explain to people why you believe that the judgments are NOT flawed.

 

This approach may help to deepen the debate - after all, if as you believe most of us misunderstand the case, then your enlightenment will be helpful to everyone.

[Suetonius]

Suetonius,

 

You seem to think that there's a lot of people who "misunderstand" the Pender case. The presumption behind your statement is of course that you completely UNDERSTAND the case .

 

 

Did you, or Did you not say that there was not an appeal ? Sounds like a misunderstanding to me, but I guess I have that wrong too.

 

 

I am not claiming to be an expert on anything or that I understand everything. However, a nice reversal back onto me (smoke and mirrors and the art of deflection 10/10)

 

1) Has it or has it not previously been posted that there was not an appeal, when there was actually an appeal?

 

2) Was the appeal granted in relation to the issue of the title to sue or wasn't it ?

 

3) Are the above two points, my opinion/understanding or are the two points both documented facts ?

 

It is not a matter of me understanding it or not understanding it Supersleuth, it is a matter of taking the time to read it. . As far as I am aware I have not changed any of the wording or made any of the extracts to appear to mean something else.

 

You said that there wasn't an appeal and the first four words of the case were "This is an appeal". Surely Supersleuth, you can appreciate the need for clarification. Especially for the people that do not have the time to read all the information about securitisation and the pender proceedings. It is ok for the people that say they know. But what about the other people that read these threads that don't know. You have to give them serious consideration, when you post on a public forum as some people will take what they read to be gospel. As has been highlighted in this thread, that is not always the case.

 

Again, I would like to remind you that this is not personal and I have no malice against you. I just disagree with you.

 

I appreciate that people don't like to have their knowledge questioned or challenged (I am equally as guilty), but wouldn't it be more productive and beneficial to concentrate on the specifics of the arguments involved and countering the points I have raised, rather than attempting to undermine me. After all, this is not a Court room and I am not a witness that you need to discredit. Surely, you would agree that it would more be advantageous to say Suetonius, you are wrong for this reason, or Suetonius you are wrong for that reason, rather than saying Suetonius, you are making yourself sound like you think you are better than everyone else (or words to that effect). Isn't it better to challenge my opinions, views and understanding rather than challenge me as an individual.

 

In direct response to your comments with regard to deepening the debate. At the moment it is impossible to deepen the debate, as there is no debate. None of the posts in this thread including your own, have made any reference to the pender judgements.

 

Why is that, when the thread was created to debate and discuss those very judgements ?

Edited May 2, 2009 by Suetonius
A Complete Rewrite :-)