Securitization - Discussion

[DonkeyB]

Brilliant AC - very informative.

[angry cat]

http://wlv.openrepository.com/wlv/bitstream/2436/14405/3/ReisRoyPhd%202007.pdf

[spartathisis]

AC, looks interesting in the first dozen pages.

 

Paragon v Pender is interesting and deals with equitable assignment, but appears, to me, not directly linked to cc debt as it involves a legal charge over property that has not been assigned. How is that different to the assignment of cc debt? Can a SPV based in another country, with no consumer credit licence, then assign consumer debt back to the originator?

 

I havent started looking through the MBNA case yet

[spartathisis]

Just out of interest, can someone explain property charges and who takes preference? eg Bank A has a charge (mortgage) for £100k on property, company B has a charge for £250k (loan/debt) on same property, if no payments made to Bank A can they then get property sold even if Company B says no?

 

off topic, but a thought crossed my mind as I read something on-line:)

[angry cat]

We will get to MBNA, in due course!

[angry cat]

Capital One Bank (Europe) Plc v Revenue and Customs [2005] UKVAT V19238 (9 September 2005)

[the_shadow]

http://wlv.openrepository.com/wlv/bitstream/2436/14405/3/ReisRoyPhd%202007.pdf

 

Hmm thats a good find AC, didnt see that on the other sec. thread so its one missed the first time around

 

Reading the section on CC debt, I think that sec 136 of the property act gives them a problem in regards legal transfer and thus must be equitable transfer only?

 

I suppose its a question of what form the notice needs to be for a legal transfer, is it enough to state in the terms&conditions that they can assign their benefits to a.nother at any other point (I suppose historic terms for old cc accounts might not have had this section so another possible avenue) or must they give proper notice?

 

S.

[angry cat]

A legal assignment is one, which in writing absolutely transfers the whole contractual right to a cashflow, and the parties give express notice reflecting this transfer to the underlying debtors affected.

 

In practice some originators do not ptovide the underlying debtor with notice of the transfer. An assignment which falls short of this, has validity and enforceability deriving from the principles of equity.

An Equitable Assignment is one where the originator purposely fails to give notice of the transfer to the underlying debtors.

 

The clear passing of ownwership and risk is another determinitive factor of true sale.

Under English Law, both ownership and risk passes if a transfer complies with s136 LOP 1925 which passes all legal rights risks and remedies respecting the receivables to the transferee. It further gives the transferee authority to discharge the debt without the aid of the transferor.

 

Once receivables have been assigned pursuant to s136 LOP, the purchaser then registers its interest by filing a registration statement and/or a registration with HM Land Registry (in the case of a mortgage). Typically, the originator does not give the required notice under s136 LOP to the underlying debtors since such a requirement involves additional administration and costs.

Thus, the transfer of the receivables does not strictly comply with s136 LOP and as such the transfer is accomplished by an EQUITABLE ASSIGNMENT

[the_shadow]

Have a look at this...

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Ch/2006/2326.html

 

Specifically paras 49 & 50

 

S.

[the_shadow]

A legal assignment is one, which in writing absolutely transfers the whole contractual right to a cashflow, and the parties give express notice reflecting this transfer to the underlying debtors affected.

 

In practice some originators do not ptovide the underlying debtor with notice of the transfer. An assignment which falls short of this, has validity and enforceability deriving from the principles of equity.

An Equitable Assignment is one where the originator purposely fails to give notice of the transfer to the underlying debtors.

 

The clear passing of ownwership and risk is another determinitive factor of true sale.

Under English Law, both ownership and risk passes if a transfer complies with s136 LOP 1925 which passes all legal rights risks and remedies respecting the receivables to the transferee. It further gives the transferee authority to discharge the debt without the aid of the transferor.

 

Once receivables have been assigned pursuant to s136 LOP, the purchaser then registers its interest by filing a registration statement and/or a registration with HM Land Registry (in the case of a mortgage). Typically, the originator does not give the required notice under s136 LOP to the underlying debtors since such a requirement involves additional administration and costs.

Thus, the transfer of the receivables does not strictly comply with s136 LOP and as such the transfer is accomplished by an EQUITABLE ASSIGNMENT

 

Yep read that too, but it doesnt really answer my question does it, its just a block of text cut&pasted

 

S.

[Suetonius]

I suppose its a question of what form the notice needs to be for a legal transfer, is it enough to state in the terms&conditions that they can assign their benefits to a.nother at any other point (I suppose historic terms for old cc accounts might not have had this section so another possible avenue) or must they give proper notice?

 

S.

 

In my personal opinion, the answer to your question is that the terms and conditions are not enough for legal assignment.

 

s.136 of the LOP 1925 requires an "express notice"

 

In my view an express notice would be similar to the goodye letters used by lenders and DCA's

 

i.e your account has been sold to............ on........

[Suetonius]

Hmm thats a good find AC, didnt see that on the other sec. thread so its one missed the first time around

 

S.

 

It has previously been posted and discussed on the mortgage and secured loan forum threads..

[the_shadow]

It has previously been posted and discussed on the mortgage and secured loan forum threads..

 

I feel like Sebastian Cabot now chasing after columbus

 

S.

[angry cat]

I feel like Sebastian Cabot now chasing after columbus

 

S.

 

LOL:)

[angry cat]

It has previously been posted and discussed on the mortgage and secured loan forum threads..

 

Mortgage/Secured Loan securitization, differs from CC Securitization.

 

More importantly though is; how and through where did the big mixed baskets of debt travel to their final destination?

[angry cat]

UK Law demands that it is done differently (securitisation),

but one wonders if the US Banks followed the rule as they should have?

 

I believe the loophole for them may well have been the Irish advantage...EU.

(not forgetting Asia and Australasia)

Edited January 31, 2010 by angry cat

[spartathisis]

AC, "Mortgage/Secured Loan securitization, differs from CC Securitization" and thats why I started this thread, it is different.

 

Paragon v Pender, Mr Malek QC for Paragon:

 

100. As to Mr Page's reliance (in the alternative) on section 136 of the Law of Property Act 1925, Mr Malek submits that given that there was no legal assignment of the Legal Charge itself (see section 33(2) of the Land Registration Act 1925) there can have been no legal assignment of the right to recover possession. He further submits that section 136 is concerned with the assignment of debts, and that is not relevant to the transfer of securities, and to the exercise of rights thereunder. The judge agreed

 

So how does that work? I presume it is a security when assigned by the originator to the SPV (so L of P 1925 doesn't apply), but when assigned to a DCA it is a debt (L of P 1925 does apply)? I'm confused.

[spartathisis]

Any takers on "can a consumer debt /receivables be assigned to a body with no consumer credit licence (or do SPV's have licences?) and are based out in say Jersey"?

[DonkeyB]

Any takers on "can a consumer debt /receivables be assigned to a body with no consumer credit licence (or do SPV's have licences?) and are based out in say Jersey"?

 

I've been looking at this with regard to Phoenix Recoveries UK Ltd Sarl and they do have a UK CC licence. They are also registered under the Data Protection Act, but some of the OCs in their court cases appear to still be processing the data of accounts supposedly sold/assigned - which begs the beneficial ownership question (in which case they should not be taking legal action in their own name).

 

As mentioned, they litigate in the UK under their own name (though all the admin is done via DCA intermediaries and they NEVER issue notices of assignment on Phoenix letterheads). However, in the few cases where evidence has been gathered, it appears that the claimed absolute assignment may not be absolute at all - and may actually be to a third party in the chain between Phoenix and the OC!

 

Thread is here:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/242653-have-you-lost-phoenix-9.html#post2739145

 

Hence my great interest. I've also been aware of other offshore debt buyers not being totally honest about the true nature of the assignments.

 

Still all very confusing - but then, that's the point of doing it, isn't it?

[spartathisis]

Very true.

 

I know there is a lot saying that there is very little chance of anything coming out of this, but I'm not so sure. I think that there is something and that it just requires some digging etc. HMRC, realistically couldnt find their own a*ses, more than happy to let bankers and millions of unpaid tax go through their hands, but happy to hunt down over payments in say tax credits worth a much smaller amount. Hence I dont think they are as thorough as they prob should be.

[Suetonius]

Hello all,

 

in my personal opinion the main different between a credit card debt and a mortgage debt is one is unsecured and the other is secured.

 

The main principles of securitisation apply to both in the same way.

 

It is your payments that are assigned (via equitable assignment) to the SPV. This is the case if the debt is secured or unsecured.

 

Security is seperate from the debt. The security is the legal charge you gave when you was given your mortgage.

 

It is my postion that it is only the debt that is assigned and not the legal charge (security).

[angry cat]

The following is a list of companies under the name Bedell;

Home

 

CCA Search :: CCA Search Results

 

 

Search Results

 

Licence / Application / Validation Order No Licensee / Applicant Name Licence Status PPB Postcode

0007943 Bedell & Blair Lapsed on 25/10/1991 M1 4LS

0395438 Credit Card Securitisation International Limited Lapsed on 21/06/2000 JE2 4UF

0447981 Cable & Wireless Communications Receivables Limited Lapsed on 04/06/2003 JE2 4UF

0459463 Chester Loans Securitisation International Limited Lapsed on 04/12/2003 JE2 4UF

0461818 Millshaw Sams No.1 Limited Current JE4 8PP

0466581 Monument Asset Securitisation Company Limited Lapsed on 16/04/2004 JE2 4UF

0485465 Trent House Securities Limited Lapsed on 20/04/2005 JE2 4UF

0493588 Credit Card Securitisation International Limited Current CH4 9FB

0497578 Fratton Finance Ltd Lapsed on 21/12/2005 JE4 8PP

0499430 Carnegie SPV (Jersey) Limited Lapsed on 23/02/2006 EC7 5LN

 

page 2:

 

CCA Search :: CCA Search Results

 

 

Search Results

 

Licence / Application / Validation Order No Licensee / Applicant Name Licence Status PPB Postcode

0507672 Castle Receivables Trust Limited Current JE2 3RA

0511350 Credit Card Securitisation Europe Limited Current JE2 3RA

0520404 Homeshop Participant Limited Lapsed on 25/07/2007 JE2 3RA

0520405 Homeshop Lender Limited Lapsed on 25/07/2007 JE2 3RA

0527276 Cumbernauld Recievables Dedicated Investments Trustee Limited Current JE2 3RA

0528667 Obelisk Funding (No 2) Limited Lapsed on 22/12/2007 JE2 3RA

0585460 Turquoise Receivables Trustee Limited Current JE2 3RA

0586122 Gracechurch GMF Trustee Limited Current JE2 3RA

0607971 Aintree Blue Limited Current JE2 3RA

[angry cat]

Current Details:

 

Licence Number:0507672Licence Status:Current

Current Applicant / Licensee:

Business Name Company Registration Number

Castle Receivables Trust Limited 80450

 

Categories:

Consumer credit

Consumer hire

Credit brokerage

Credit reference agency

Debt adjusting/counselling

Debt collecting

 

Right To Canvass Off Trade Premises:Yes

Trading Name(s) (Current):

Capital One

Capital One Bank

Capital One Business Platinum

Capital One Business Premier

Capital One Business Services

Capital One Chance Card

Capital One Insurance Services

Capital One Small Business Services

Chance

Chance Card

Circle

Debitas Legal Services

Easy Choice

Sherwood

Sherwood Financial Services

Sportscard

Thomson Holiday Card

Thomson Holiday Mastercard

 

Trading Name(s) (Historic):

Capital One Bank (Europe) Plc

 

Issued Date: 13-Sep-2001 Expiry Date: 22-Nov-2011

Legal Formation:

Body Corporate (incorporated outside UK)

 

Authorised To Receive Documents:

Business Name Company Registration Number

Bedell Trust UK Limited

 

Current Individuals that run the organisation:

Name Position

Alasdair James Hunter

Jean Elizabeth Walsh

Rebecca Liesl Bates

Richard Charles Gerwat

Shane Michael Hollywood

 

Historic Individuals that run the organisation:

Name Position

Mr Michael Henry Richardson OFFICER

Mr Richard Charles Gerwat OFFICER

 

Current Organisations that run the organisation:

Name Company Registration Number Position

Bedell Secretaries Limited OFFICER

Robinson Michael

 

Historic Organisations that run the organisation:

Name Company Registration Number Position

Bedell Cristin Secretaries Limited OFFICER

 

Current Address(es):

Address Type Address

Accept Notices/Documents 2nd Floor, 11 Old Jewry, London, EC2R 8DU

Principal Place Of Business 26, New Street, St Helier, Jersey, Channel Islands, JE2 3RA

Registered Office 26, New Street, St Helier, Jersey, Channel Islands, JE2 3RA

[spartathisis]

Suetonius, understand with a mortgage, but what is the charge and security with cc debt? I am missing something here and dont follow, sorry:(

 

Assignment of rights of action

Assignment of rights of action

 

September 2003

 

31.9.28 Types of assignment

Equitable assignment of an equitable chose:Where a chose is merely equitable and where the whole of the interest is vested in the assignee (ie it is an absolute assignment), equity has always permitted him to sue in his own name without joining the original creditor (see, eg Cator v Croydon Canal [1834] 4 Y & C Ex 593; Fulham v M’Carthy [1848] 1 HLC 703); for the chose existed only in equity and so equity was free to hold that the assignee was the sole owner and no interest remained in the original creditor (see McMurchie v Thompson [1906] 8 OLR 637 and 639). Although there is no authority precisely on the point, it seems that an equitable assignee of an equitable thing in action must join the assignor where the assignor retains an interest in the thing in question.

[angry cat]

An interesting read:

Credit card securities may be in for rough times ahead