Mortgage Securitisation Discussion Thread

[Lea_HTH]

Lea_HTH

 

For someone who has stated that they are 'marginally interested' and gone on to state: "If you genuinely think I would spend time giving you what would actually be an advice on a legal matter, you're sadly mistaken".....

 

Given you are a Lawyer - I'm not sure that you will convince anyone that visits this thread that you are truly acting in the interest of consumers : (

 

But as I have stated and will state again, your input has been appreciated and your comments are noted.

 

Apple

 

See, your lack of understanding is an issue. You don't understand certain things, so you misinterpret them, be that the law, or simply what others post in response to you.

 

My comment regarding the discussion being marginally interesting, was just that - it was a comment about the thread as a whole, a personal, opinion, with the operative being 'marginally'.

 

My comment regarding 'giving an advice' is what lawyers do...a brief is given and an advice is sought and the writer of that advice is PAID. Detailing what you are asking me to do (show good cause as to how your 'theory' is wrong, is tantamount to providing you with an advice...that is AN ADVICE, not merely providing you with a personal opinion. One is professional, and for which one would desire to be paid, the other is hot air - though clearly a professional opinion would also be paid for. So the two things are separate. I do hope that clarifies the matter to you. The law as it stands is sufficient to disprove your views and stating as much is adequate.

 

I am not attempting to 'convince' anyone that I am 'acting in the interest of consumers'. I think the mere fact that I ACT for defendants professionally and provide assistance for defendants in my own free time on here (and elsewhere), is sufficient evidence of my position.

 

What you choose to misinterpret from my posts is your issue, not anyone else's.

 

My personal opinion regarding your misleading posts stands - if a litigant in person puts your ideas to a court with no actual back up plan, they risk their home. Are you certain you want to be responsible for someone coming to a self-help site as you clearly stated, looking for alternatives, using your wrong information in court? Will you feel responsible when they lose their house because of an attempt to throw an invalid argument into the mix?

Edited August 23, 2012 by Lea_HTH
Clarity

[applecart]

In the years that I have been a member of the CAG, no-one has ever suggested that I do myself a 'disservice'.

 

This thread was never about individual caggers - it's about mortgage securitisation.....

 

Apple

[Lea_HTH]

In the years that I have been a member of the CAG, no-one has ever suggested that I do myself a 'disservice'.

Apple

 

There is always a first time, usually rapidly followed by a second, and a third...

[wfspayback]

In the years that I have been a member of the CAG, no-one has ever suggested that I do myself a 'disservice'.

 

This thread was never about individual caggers - it's about mortgage securitisation.....

 

Apple

 

Well your responses to Lea_HTH's comments are doing you a disservice now. There is no justification for how you have responded.

[applecart]

Like I said - this thread is not about Lea_HTH or indeed you - it is about Mortgage Securitisation.

 

I would be grateful - with the site teams kind permission - to be allowed to get on with the discussion - Whilst I appreciate both wfspayback and Lea_HTH have made their points clear - this is incidental - as there is nothing posted that should cause the types of concern that they present.

 

Further, at all times up to this point, I have at no time given consumers advise or suggested that they should take this thread as cause for action against any lender. In fact, I have at no time personally brought or put any particular lender into the frame. I have done my best to avoid doing so....

 

With this - if you refuse from posting, I will have no choice but to ignore you - I still admire you both and respect both of you though - that is not me just being 'nice' - I genuinely mean it : )

 

 

Apple

[Non Fitz Carborundum]

Good morning to you all here ,

I have read all of these threads and with a great deal of facination watched this particuler item taken apart in great detail, opinions and law applied to argue a relevent point or opinion.

From a laymans point of view it has been very informative and helpfull when to have this matter or similar in context heard in a court to see how a or any particuler point is trying to be argued, the gist of what i understand is who has the right to take the borrower to court for a default condition on A mortgage when lender (A) has sold or assigned (A's) charge by right of a mortgage to (B) a securitisation company,

therfore under the terms and conditions of any typical mortgage there will be written under a section "TRANSFER" the rights given to another person or company alongside with the securitised loan for sale or assignment,

I directly quote from "A" sub prime lenders terms and conditions document...

" We may at any time (either in law or equity) charge, dispose, assign or transfer any or all of our rights benifits and obligations under the mortgage and/or the mortgage debt to any person without first seeking your permission."

and..."If we charge,dispose, assign or transfer any or all of our rights benifits and obligations under the mortgage and/or the mortgage debt, your own rights, benifits and obligations under this mortgage will stay exactly the same and you will be bound to the person to whom we have so charged, disposed, assigned or transfered this motrtgage and/or the mortgage debt. "

(my underline to highlight the relevent part)

In this instance therefore it would need to be accertained WHO is now the owner of the charge by mortgage and to end the confusion of who has the right to persue the defaulter for the debt of the mortgage pledge and also on top of the mortgage loan, any outstanding debts or/and arrears and charges pertaining to the servicing of the loan secured by way of a mortgage.

The original lender and any securtisation company just tend to confuse the layman/borrower by shrouding their particuler dealings amongst themselves to the detriment to the borrower in default for the benifit of themselves and the financial doings.

In my opinions, Question.. does securitiastion affect redress by court action ... No all that does matter is who has the proper right to take any action against (A) borrower for defaulting on a mortgage this would be accertained by correct questioning of the motgage loan company/person and on the accertaining of that company/person due process could take place .

I am a ordinary member of the public please exuse my failings in the complexities of the intracasies in law but from a "laymans" point of view you see how confused and misled we could become many thanks to you all on here.

[wfspayback]

Hello Non Fitz

 

To determine who is the owner of the charge at law, all you need to do, is go to the Land Registry website and download the Title Register for your home. This will cost £4.00.

 

Within the title register you will find a section entitled Charges Register. This section details all the charges (including the mortgage by way of legal charge)

 

It will state something along the lines of

 

1. REGISTERED CHARGE dated (whatever date it was registered) to secure the moneys including the further advances therein mentioned.

 

PROPRIETOR (Name and address of the proprietor/owner of the registered charge)

 

Initially the Proprietor of the registered charge will be your lender, who you gave the mortgage by way of legal charge to as security for a loan to purchase your home.

 

The lender will remain the Proprietor of the registered charge until a completed TR4 is submitted to the Land Registry. When processed and only at that time will your Lender be replaced as the proprietor of the registered charge and the Charges Register will be updated to reflect the change of proprietor.

 

Whilst the Lender remains as the PROPRIETOR of the REGISTERED CHARGE as detailed within the CHARGES REGISTER of the TITLE REGISTER of your home, it will have the right to possession of your home.

 

This simple fact was stated in the Pender 2005 case

 

". 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."

 

To put it simply

 

Whoever is the the registered proprietor of the charge (as detailed in the charges register of your property) is the legal owner of that charge. One incident of legal ownership – and an essential one at that – is the right to possession of the mortgaged property.

 

A SALE of the charge that has not been completed by registration (The proprietor of the registered charge has not been changed in the charges register section of the title register for your home) will not in any shape of form impact upon the right of possession of the Lender as the REGISTERED PROPRIETOR of the REGISTERED CHARGE.

 

The title register is conclusive proof of ownership and an official copy of the register is admissible in evidence in a court.

 

In terms of who has the legal right to possession, it is and only is the Registered Proprietor of the Registered Charge, detailed within your title register.

Edited August 24, 2012 by wfspayback

[wfspayback]

The Vicky Pollard counter argument of yes but, no but, yes but, all said in the nicest possible way (anyone remember Kenny Everett) is misinterpretation taken to the most outlandish degree.

 

There is more chance of a snowman, staying standing up in the middle of the desert than the majority of those points standing up in court.

 

The hole in the title to sue argument is bigger than the one that sank the titanic.

 

Think of a fishing net that someone had cut holes in and you will still see less holes than those in the title to sue argument.

 

The stainless steel sieve in my kitchen had less holes in it than the title to sue argument.

 

As the law stands at the moment (legislation and case law) the title to sue argument has no basis in law. In fact the applicable law goes so far (s.27 & s.58 of the Land Registration Act 2002, 116 of the Land Registration Rules 2003, various sections of the Law of Property Act 1925 and all of the cases I have previously mentioned in this thread) make it clear that the title to sue argument is completely baseless.

 

I hope that no one will ever choose to rely upon it.

Edited August 24, 2012 by wfspayback

[wfspayback]

The title to sue argument in a possession claim will be as much use as a chocolate teapot.

 

I would like to take this opportunity to say to all readers of this thread, if you are facing possession proceedings go to the Home Repossessions sub forum and contact Ell-enn. She and others will help you the best they can to save your home and they won't suggest any pure flights of fancy.

 

You could also go to the Home Repossession Successes sub forum and try to find one successful thread about the use of the securitisation - title to sue argument.

 

In fact I will save you from wasting your time, there isn't any.

[wfspayback]

Hello Non Fitz

 

To determine who is the owner of the charge at law, all you need to do, is go to the Land Registry website and download the Title Register for your home. This will cost £4.00.

 

Within the title register you will find a section entitled Charges Register. This section details all the charges (including the mortgage by way of legal charge)

 

It will state something along the lines of

 

1. REGISTERED CHARGE dated (whatever date it was registered) to secure the moneys including the further advances therein mentioned.

 

PROPRIETOR (Name and address of the proprietor/owner of the registered charge)

 

Initially the Proprietor of the registered charge will be your lender, who you gave the mortgage by way of legal charge to as security for a loan to purchase your home.

 

The lender will remain the Proprietor of the registered charge until a completed TR4 is submitted to the Land Registry. When processed and only at that time will your Lender be replaced as the proprietor of the registered charge and the Charges Register will be updated to reflect the change of proprietor.

 

Whilst the Lender remains as the PROPRIETOR of the REGISTERED CHARGE as detailed within the CHARGES REGISTER of the TITLE REGISTER of your home, it will have the right to possession of your home.

 

This simple fact was stated in the Pender 2005 case

 

". 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."

 

To put it simply

 

Whoever is the the registered proprietor of the charge (as detailed in the charges register of your property) is the legal owner of that charge. One incident of legal ownership – and an essential one at that – is the right to possession of the mortgaged property.

 

A SALE of the charge that has not been completed by registration (The proprietor of the registered charge has not been changed in the charges register section of the title register for your home) will not in any shape of form impact upon the right of possession of the Lender as the REGISTERED PROPRIETOR of the REGISTERED CHARGE.

 

The title register is conclusive proof of ownership and an official copy of the register is admissible in evidence in a court.

 

In terms of who has the to possession, it is and only is the Registered Proprietor of the Registered Charge, detailed within your title register.

 

If anyone tells you different, I would politely ignore them as they do not even have a basic grasp of the applicable law.

 

Look at the charges register on your title deeds. The named PROPRIETOR of the REGISTERED CHARGE has the right to possession - Possession Claims will be made by the Registered Proprietor of the Registerd Charge or at the very least in the name of the Registered Proprietor of the Registered Charge.

 

No amount of interpretation can escape that one fundamental legal principle.

 

Pender 2003 confirms this most basic principle

 

138. Now this all makes sense. It means that the Defendants need only deal with the registered chargee and no one else. Anything else would be nonsense.

 

"Anything else would be nonsense" I don't think I could be put it any better than that

 

"Anything else would be nonsense" - consider that when reading the posts in this thread that tell you different.

 

Nonsense - Meaning:

 

Subject matter, behaviour, or language that is foolish or absurd

 

Matter of little or no importantance or usefulness

 

Says it all really....

[wfspayback]

The biggest problem with flights of fancy is that they have a habit of crashing and burning.

 

Posters on forums are the ones with the parachutes. The homeowner in court is the one left in the plane.

 

So from a place of safety, posters can tell you the sky is orange and the sea is pink. Which it is when looked through different quality street (over tins of chocolate confectionary are avaliable) coloured sweet wrappers.

 

However, when you look at the sky and sea without those coloured sweet wrappers (for the sake of this thread 'interpretation') you can see that the sky is not orange and the sea is not pink. They are both in fact blue, amazing how people can see reality for themselves without the need for interpretation (or coloured sweet wrappers)

 

 

It is ultimately the homeowner that takes the risks.

Edited August 24, 2012 by wfspayback

[Non Fitz Carborundum]

For the sake of clarity is it true that a lender who lends say 50% of the actual value of a property, then under a default condition applies for possesion due to a breach of pledge by way of a mortgage can and will only be entitled to 50% of the later sale of said property plus any relevent costs ? or is it that on making a pledge by way of mortgage that the lender is entitled to claim the whole 100% of the property by reason of a defaulting borrower?

and also is it not true that after possesion by the lender that the property for sale to redeem the mortgage and costs must be assisted by the borrower to sell the property in order to realise a realistic selling price thereby receiving the residue minus costs of "his" 50% of the equity and legal charge of the property?, I will get to where I am going shortly!

[wfspayback]

Hello Fitz

 

You should really start your own thread.

 

What does your charge state on your Title Register ? Some state an amount secured by the charge. In any event, the lender can only claim the amount owed and costs etc.

 

The lender should following possession seek the best price for the property. However, this may involve the property being marketed for 2/3 months and then sold at auction.

 

Any surplus funds should be released to the borrower. However, it may not be that straight forward if other debts to the same lender are involved etc...

[Non Fitz Carborundum]

In reply to you wfpayback your post at 12.54 today where you say "To determine who is the owner of the charge at law, all you need to do, is go to the Land Registry website and download the Title Register for your home. This will cost £4.00.

Within the title register you will find a section entitled Charges Register. This section details all the charges (including the mortgage by way of legal charge)"

was it not posted earlier that a securitising company can effect a interest in possesion on assignment to its self by the OL of the equitable charge by registering that charge within company house and not at the Land Registry itself therefore creating a split charge over the property of which one charge would be hidden from the layman in effect causing more confusion to the layman and in actuality the Original lender is only holding the legal right without any equitable right in order to lessen his (the OL) equitable risk but leaving himself in the position of just collecting on a legal debt by way of a mortgage and pocketing the difference in interest rates from what he has lent out to what he has to pay to the securitising company who I imagine would be the lenders source of finance in the first place, therefore leaving the home owner taking all the risks, paying for the privelige of doing so, and in effect having a "suspended" posession in interest caused by the mortgage pledge deed itself thereby having little or no rights at all to protect himself as he has signed away those rights by deed for the period of the mortgage pledge. Therefore defaulting the pledge gives only the legal right to the lender to reposess the legal title only, leaving the equitable charge in the hands of the securitising company who as far as i can see play no part in possesion proceedings and so leaving the Original Lender with the power to sell the property which he does usually at auction receiving a lower market price and keeps this as his reward its a win win win for the lender and SPV at the expence of the "homeowner?" I do realise this only applies on a default situation by the Borrower/homeowner.

[Non Fitz Carborundum]

Hi wfspayback you are correct i should really continue the theme of my thread in a new place sorry but as i said earlier i found this thread very interesting and just wanted to add a little from a laymans perspective the previous threads here have given me much to think about I shall now just sit back and continue to watch this evolve , And by the way I was in this unfortunate position many years ago as in I was the man in the plane !! BUT .......

I DID LEARN TO FLY ON THE WAY DOWN ! No parachutes just walked away dusted myself off with a little reminder to never do that again !!!!

[wfspayback]

In reply to you wfpayback your post at 12.54 today where you say "To determine who is the owner of the charge at law, all you need to do, is go to the Land Registry website and download the Title Register for your home. This will cost £4.00.

Within the title register you will find a section entitled Charges Register. This section details all the charges (including the mortgage by way of legal charge)"

was it not posted earlier that a securitising company can effect a interest in possesion on assignment to its self by the OL of the equitable charge by registering that charge within company house and not at the Land Registry itself therefore creating a split charge over the property of which one charge would be hidden from the layman in effect causing more confusion to the layman and in actuality the Original lender is only holding the legal right without any equitable right in order to lessen his (the OL) equitable risk but leaving himself in the position of just collecting on a legal debt by way of a mortgage and pocketing the difference in interest rates from what he has lent out to what he has to pay to the securitising company who I imagine would be the lenders source of finance in the first place, therefore leaving the home owner taking all the risks, paying for the privelige of doing so, and in effect having a "suspended" posession in interest caused by the mortgage pledge deed itself thereby having little or no rights at all to protect himself as he has signed away those rights by deed for the period of the mortgage pledge. Therefore defaulting the pledge gives only the legal right to the lender to reposess the legal title only, leaving the equitable charge in the hands of the securitising company who as far as i can see play no part in possesion proceedings and so leaving the Original Lender with the power to sell the property which he does usually at auction receiving a lower market price and keeps this as his reward its a win win win for the lender and SPV at the expence of the "homeowner?" I do realise this only applies on a default situation by the Borrower/homeowner.

 

Hello Fitz

 

Sorry I must have missed that post.

 

The poster has read the word charge and jumped to the wrong conclusion.

 

Charges on a companies assets must be registered at Companies House. This can be way of a fixed charge or a floating charge.

 

A fixed charge is a charge secured on particular property and a floating charge is usually an equitable charge on all the companies assets, both present and future.

 

In the case of securitisation the undertaking and assets of the SPV are charged in favour of a security trustee.

 

It is this charge that is registered at companies house - a charge created by a company etc. - A charge granted by the SPV over it's assets.

 

A mortgage by way of legal charge is a charge you grant the lender on your home. This is why the charge is registered with the Land Registry.

 

In terms of your home, the asset of the SPV are receivables (your monthly payments) and the security for their repayment (the charge you gave to your lender).

 

This means that at best the charge at companies house can be described as a charge on a charge. Halsbury's Laws of England states that this charge takes effect as an equitable sub charge.

 

So sadly this is just more nonsense that only serves to confuse readers of this thread. Must have been one of Apple's posts.

 

The charge given by the SPV to the Security Trustee has been confused with the charge given by the borrower to the lender.

 

You can only give a charge for something you own.

 

To cut a long story short. It is the REGISTERED PROPIETOR of the REGISTERED CHARGE as detailed on your Title Register that has the sole right to possession.

 

Proceedings must be started by the Registered Proprietor or in their name.

Edited August 24, 2012 by wfspayback

[wfspayback]

Hi wfspayback you are correct i should really continue the theme of my thread in a new place sorry but as i said earlier i found this thread very interesting and just wanted to add a little from a laymans perspective the previous threads here have given me much to think about I shall now just sit back and continue to watch this evolve , And by the way I was in this unfortunate position many years ago as in I was the man in the plane !! BUT .......

I DID LEARN TO FLY ON THE WAY DOWN ! No parachutes just walked away dusted myself off with a little reminder to never do that again !!!!

 

No need to apologise and I am sorry if that came across as rude of me. What I meant was that if you have any issues unrelated to securitisation, people that may be able to help may not see your questions in this particular thread. It is alway better to start your own so that you get maximum exposure and help relating to your own circumstances.

 

If you ever have similar problems again, get in touch with Ell-en on here, she has helped countless people.

 

I wish you the best of luck in with whatever you are trying to do.

Edited August 24, 2012 by wfspayback

[Non Fitz Carborundum]

wfspayback No apolgies are required I do not concider you rude at all , I dont have any issues unrelated to securitisation or any other issues, I did have one lesson in the past taught to me by the sub prime experience re " the one man left in the plane without a parachute ! they taught me a lesson which is very much itralinked to this particular thread in all its guises, as a layman who suffered the consequences of the situation prevailing at the time I learnt my lesson well and exeted the dubious world of mortgages and sub prime lenders along with their cohorts the spv's and financial dealings, that to this day still leave me feeling very sorry to all those that were in my shoes in the past and who will continue to suffer at the hands of these type of people while as we all mostly get into some sort of debt one time or another at whatever level leaving the situations to our laywers to sort out the nitty gritty of the pertaining situations that have been created, my experences have not been very happy with , the legal system as it is cast in stone and not nesassarily adaptive to our current times but this is what the law is and what our lives must be governed by, but then to be subjected to and place our trust in to the hands of laywers ect to argue the relevent points and interpretations of who's opinions ,case law and statute law apply whilst everyone "does as the financiers would have us do so as to make themselves a pretty penny or two.

I am ashamed to be a part of this hideous creation we now live in and would dearly wish with all respect that the legal system in all its guises would perhaps re evaluate and address what is actually fair to the common man and put into place a fairer system of accountability and redress ON BOTH SIDES OF THE COIN ! buyer/seller, lender/borrower, ect, the law of this land was designed for the common man and put into common english so that the common man could address his peers whilst not being at a disadvantage, our lords then made the law it was called .. Common law ! as complexities evolved so did new laws to govern them to try to give a fair chance of redress in two directions from above ones self or from below ones self. this not just a rant it is a call for more common sense if anything.

I said my piece ! thank you.

[Lea_HTH]

Just for clarity: it is not the law, the legal system, or justice that has created the issues described in this thread. It is the freedom of two entities, be they individuals, companies, or one of each, to enter into a binding contract, which they both can read and agree with, or disagree with, and come to some other agreement, before signing.

 

The law merely comes along afterwards because when things go wrong, people, be they individuals or companies, want someone to arbitrate between them as to how the dispute that has arisen should be decided.

 

The law IS adaptive - that's what case law is. Just because it has come down on one side rather than the other does not mean it isn't adaptive. That's a silly argument to put forward - it changes almost daily.

[applecart]

Back to the discussion……

 

Property Law is complex, we are concerned with the sale of A.N.OTHER to an SPV of that which was granted to him by the Borrower.

 

The Law tells us that there are only 2 types of estates at LPA 1925 s.1 (a) (b):

 

“(1) The only estates in land which are capable of subsisting or of being conveyed or created at law are—

(a) An estate in fee simple absolute in possession;

(b) A term of years absolute.”

 

It is fair to say that s.(1)(a) of the LPA 1925 represents the majority of mortgages created.

 

Apple

[applecart]

Dare I say…… The discussion has become somewhat ‘twisted’ – but then, that’s not surprising given that Property law is complex – it is not unusual that in cases where a mortgage has been securitised that we will come to see the underlying mitigating circumstances ‘sidelined’.

 

Those ‘underlying mitigating circumstances’ are in the main..............., the originator was granted:

 

‘an estate in fee simple absolute in possession’ nothing more, nothing less… (LPA 1925 s.1 (a))

 

And….

 

The Originator sells that which it was granted – that being, ‘an estate in fee simple absolute in possession’.

 

There is nothing posted as yet that directly conflicts with the consequences of LPA 1925, ss.88, 89 after the sale of the mortgage to the SPV.

 

Apple

[applecart]

It is not untoward to consider if the authority in Pender (2005) truly addresses the issue in totality….on the finding that the Judge states:

 

". 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."

 

Clearly, without ‘Basis’ one cannot contend that an un-completed agreement can transfer the legal Charge to the SPV ……. And, therefore, it has to be accepted as a fair Judgment…

 

Apple

[applecart]

It is abundantly clear that without ‘basis’ a contention will not defeat ‘Pender’.

 

We have raised for discussion the following documents:

 

The Mortgage Sale Agreement – What is the purpose or ‘basis’ of this document?

The Power of Attorney – What is the purpose or ‘basis’ of this document?

The Admission Notice – What is the purpose or ‘basis’ of this document?

The Charge at Companies House – What is the purpose or ‘basis’ of this document?

 

As I understand it - The Mortgage Sale Agreement is the contract to ‘SELL’ – the intention to convey/pass over rights in goods (my terms, not those of the legislator)

 

For this document to have ‘substance’ i.e ‘basis’ – it must show that a price/consideration will be paid, it needs to be executed, the price paid - and there must be a means of ‘delivery’ of the goods and acceptance of the goods to which it relates. (SOGA 1979).

 

As I understand it - The Power of Attorney – this document works alongside the MSA to convey, confirm that a price/consideration has been paid and ‘conveys/delivers’ the estate in fee simple absolute in possession’ from the Originator to the SPV by way of ‘atonement’ – it also acts to provide the means of ‘DELIVERY’ of all rights both legal and equitable from the Originator to the SPV. (TDA 1999 s.10 – confers both legal and equitable rights)

 

As I understand it - The Admission Notice – this document works to confirm that the SPV has ‘ACCEPTED’ the goods to which the MSA and the POA relate – that being ‘an estate in fee simple absolute in possession’ (SOGA 1979) (cannot take goods to stock exchange unless investor have recourse to the assets of the SPV).

 

As I understand it - The Charge at Companies House – will relate to duly executed ‘deed of Charge’ – as executed by DEED, works alongside all the above mentioned documents to provide confirmation of the owner of the ‘goods’ to which all the above documents relate. (LPA 1925 s.67 – ‘receipt in deed sufficient’)

 

The ‘charge’ so made, also works to show that ‘ACCEPTANCE’ of the goods have been legally registered and are in the ‘ownership’ of the ‘chargor’.

 

It is of note that it is the ‘owner’ of the goods (an estate in fee simple absolute in possession) that has the right to charge that which he owns at companies house.

 

It may surprise some to note that it is the SPV that is the Chargor/owner who charges that which he owns at Companies House….

 

As I understand the overall scheme of things – the MSA, The POA, The Admission Notice and the Charge at Companies House – may still provide a concern for Borrowers – when approaching courts of Law to defend possession claims.

 

I have yet to see where it is that the posts relating to any misconception on my part are justifiably made…. And without more…. It would be unfair to presume that the thread or its contents are not justified.

 

Apple

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Oh, and in case your wondering.... how is it that the rights to title are transferred whilst the originators name is retained on the title at HMLR - take on board, that such rights can be transferred 'actually' or 'constructively' (FACTORS ACT)

 

Apple

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Hi Non Fitz Carborundum - Welcome to the CAG – : )

 

I have read all of these threads and with a great deal of facination watched this particuler item taken apart in great detail, opinions and law applied to argue a relevent point or opinion.

From a laymans point of view it has been very informative and helpfull when to have this matter or similar in context heard in a court to see how a or any particuler point is trying to be argued, the gist of what i understand is who has the right to take the borrower to court for a default condition on A mortgage when lender (A) has sold or assigned (A's) charge by right of a mortgage to (B) a securitisation company,

 

I’m pleased you are finding the thread informative - you are correct, we are looking into who has the right to possession – despite the originating lender holding the ‘title to sue’.

 

therfore under the terms and conditions of any typical mortgage there will be written under a section "TRANSFER" the rights given to another person or company alongside with the securitised loan for sale or assignment,

I directly quote from "A" sub prime lenders terms and conditions document...

" We may at any time (either in law or equity) charge, dispose, assign or transfer any or all of our rights benifits and obligations under the mortgage and/or the mortgage debt to any person without first seeking your permission."

and..."If we charge,dispose, assign or transfer any or all of our rights benifits and obligations under the mortgage and/or the mortgage debt, your own rights, benifits and obligations under this mortgage will stay exactly the same and you will be bound to the person to whom we have so charged, disposed, assigned or transfered this motrtgage and/or the mortgage debt. "

(my underline to highlight the relevent part)

 

I do not dispute that this may be found in the Borrowers contract, it is useful that you should post this information here for discussion – Thankyou : )

 

Upon strict interpretation of UK Law: if it is evidenced that the ‘estate in fee simple absolute in possession’ has been sold, then it would have NO LEGAL effect against a Borrower until such time as notice of the ‘disposition’, ‘assignment’, ‘transfer’ etc is given to the Borrower (s.136 LPA 1925 and compliance with s.27 LRA 2002).

The originating Lender will have ‘exited’ – There is a legal conundrum at play - the Registration Gap. This Registration Gap is filled with the on-going activities of the Administrators of the SPV, who collect payments so that from the Borrowers point of view - ‘all is as normal’.

 

The chose in action is transferred by way of ‘delivery’ as mentioned above – this can be ‘actual’ i.e update the register at HMLR or ‘constructive’ by ‘atonement’ (POA).

In this instance therefore it would need to be accertained WHO is now the owner of the charge by mortgage and to end the confusion of who has the right to persue the defaulter for the debt of the mortgage pledge and also on top of the mortgage loan, any outstanding debts or/and arrears and charges pertaining to the servicing of the loan secured by way of a mortgage.

 

If the ‘estate in fee simple absolute in possession’ has been sold – it is the SPV who ‘owns’ the ‘estate in fee simple absolute in possession’.

 

If you are trading in asset backed or mortgage backed securities you must own the asset if you do not meet this key criteria – as SPV - your application will fail.

 

ISDA (International Securities Derivatives Association) provides guidelines, and the various stock exchanges themselves provide ‘rules’ and guidelines, it is a regulated market.

 

G20 was to do with the securities markets around the world – I’m conscious that there are some that say that ‘USA is different for UK’ – G20 involved all EU states as well as USA etc. In a recent report, G20 admitted that the markets are not regulated enough…..and recognised that some companies who trade had gone too far…..(keeping it simple)

 

The original lender and any securtisation company just tend to confuse the layman/borrower by shrouding their particuler dealings amongst themselves to the detriment to the borrower in default for the benifit of themselves and the financial doings.

In my opinions, Question.. does securitiastion affect redress by court action ... No all that does matter is who has the proper right to take any action against (A) borrower for defaulting on a mortgage this would be accertained by correct questioning of the motgage loan company/person and on the accertaining of that company/person due process could take place .

I doubt whether you would get the answers you require from any Lender, it is not in their interest to ‘show their hand’. If a Borrower asserts a claim or defends a claim, then it would be up to the Borrower to provide the proof/evidence. I’m unaware of any claim or defence that was won without evidence…..

 

I am a ordinary member of the public please exuse my failings in the complexities of the intracasies in law but from a "laymans" point of view you see how confused and misled we could become many thanks to you all on here.

 

We do not have to ‘articulate’ in the same way as anyone else – I take on board, that for you, you want things kept simple so that you can decide for yourself where you stand – everyone on here has sought to keep things ‘simple’ the only ‘complexity’ is the underlying situation itself : )

 

Apple : )