Mortgage Securitisation Discussion Thread

[applecart]

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.

 

Wow!!.... I thought you said you were confused?.... I don't think you are at all : )

 

To find out if there is 'dual' registration - I'm sure you are aware that a copy of the SPV's charge costs £1 from Companies House.

 

For those that may not be aware, you are looking for a form '395' - it should come with the 'certificate of the registration of a mortgage or charge' - it will confirm the date of the sale under 'Date of creation of the charge' etc., etc., etc.,

 

Briefly - Depending on who's name is at the top i.e 'name of company' - this will denote who is making the charge - if it the originating lender - then this denotes that the originating lender has created the charge over that which he still possesses, if it is in the name of the SPV - then it denotes that the SPV now owns the estate in fee simple absolute in possession.

 

Apple

[applecart]

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.

 

Well said!!

 

I do not doubt that there are thousands of Borrowers concerned as to 'where is the balance' is..... This thread explores that 'balance'.

 

Apple

[applecart]

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!

 

I'm keeping my comment general if that is ok....

 

The lender is entitled to Principle, interest and reasonable associated costs only - he is not entitled to any more than that. He is strictly accountable to the Borrower for any monies that are over and above this and to repay the Borrower the difference.

 

I am not aware that the Borrower needs to involved in the sale per se...but like I say, the Lender is strictly accountable to the Borrower to account for his costs and where the Borrower disagrees with any associated costs - he can dispute them.

 

LPA 1925 s105 Application of proceeds of sale.

 

"The money which is received by the mortgagee, arising from the sale, after discharge of prior incumbrances to which the sale is not made subject, if any, or after payment into court under this Act of a sum to meet any prior incumbrance, shall be held by him in trust to be applied by him, first, in payment of all costs, charges, and expenses properly incurred by him as incident to the sale or any attempted sale, or otherwise; and secondly, in discharge of the mortgage money, interest, and costs, and other money, if any, due under the mortgage; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorised to give receipts for the proceeds of the sale thereof."

 

Hope this helps?

 

Apple

[wfspayback]

 

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).

[/color]

 

Nope

 

You will find it is actually a chose in possession that is transferred by delivery and not a chose in action. For a transfer of a chose of action to be effectual at law it must be as per s.136 (including notice to borrower etc)

 

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

 

Nope again..

 

Apple s.1 (1) relates to 'estates in land'

 

Instead you might just want to read s.1(2) as this relates to interests and charges in or over land. Especially s.1(2c) A charge by way of legal mortgage.

 

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

 

If it has become twisted, it is through your continued misunderstandings. I now fear your misunderstandings are intentional. Or be honest, you read the word possession and jumped feet first to the wrong conclusion that it related to possession by the lender...

 

The originator is NOT granted 'an estate in fee simple absolute possession' (LPA s.1 (1a) ) by the borrower

 

The originator IS granted a charge by way of legal mortgage (LPA s.1 (2c) ) by the borrower

 

Which leads onto s.87 of the LPA

 

s.87 Charges by way of legal mortgage

 

(1) Where a legal mortgage of land is created by a charge by deed expressed to be by way of legal mortgage, the mortgagee shall have the same protection, powers and remedies (including the right to take possession proceedings.....

 

s.88 and s.89 have nothing to do with the lender selling a charge to an SPV but rather the lender selling the property (land/buildings) to a new owner, usually after possession proceedings, free of the original mortgage.

 

if it is in the name of the SPV - then it denotes that the SPV now owns the estate in fee simple absolute in possession.

 

Apple

 

You honestly believe that the SPV owns the estate in fee simple ?

 

I am wondering what you interpret an estate in fee simple to mean.... Trust me, it is NOT what you interpret it to mean (no change there then)

 

Read this

 

http://www.inbrief.co.uk/property-law/estate-in-fee-simple-freehold.htm

 

Then let's see if you still interpret that the SPV owns the estate in fee simple absolute in possession.

 

I know you have had repeated and continued difficulty in the past differentiating between ownership of the land/house and ownership of the mortgage by way of legal charge, by now even you should know the difference. However, here goes -

 

Please read section (1) of the Law of Property Act 1925, re estates in land which are capable of subsisting or being conveyed or created at law (an estate in fee simple = freehold & a term of years absolute = leasehold)

 

The owner of the fee simple estate in land, is the owner of that land. When the borrower brought that land / house he gave a mortgage by way of legal charge as security for that loan.

 

So the borrower is the owner of the fee simple estate in land and the lender is the owner of the mortgage by way of legal charge.

 

Now absolute means the ownership is exclusive and in possession means that the owner has the enjoyment of the property right now rather than in the future (taken from Wikipedia, as it is clear you are a huge fan)

 

So fee simple absolute in possession means

 

The owner of the estate in land has exclusive ownership and has enjoyment of the property today.

 

Of course this only applies to freehold, 'terms of years absolute' applies to leasehold.

 

To put it in simple terms, the owner of the fee simple estate in land is the freehold owner.

 

Now if you take a few moments to read a 395 form and it's replacement the MG01 form, both state at the top Particulars of a mortgage or charge.

 

In other words it has nothing to do with and does not determine who is the owner of the fee simple estate in land.

 

A FREEHOLD ESTATE IS A FEE SIMPLE IN ABSOLUTE POSSESION.

 

You really need to stop playing the word association games.

 

Companies House register, records charges granted by companies over their assests.

 

The Land Registry, records the details of the registered owners of land and the registered charges created by those owners.

 

What you have suggested is utter nonsense. You even know that the "dual registration" of which you speak is utter nonsense.

 

Look at your previous posts, in particular to the Land Registration Act 2002.

 

S.58 conclusiveness

 

How can the registry be in anyway conclusive if you was correct in anyway ??????

 

Whoever, let common sense escape this thread, can you please go find it and return it here urgently.

 

You say you have researched this topic, I see no evidence in any of your posts of understanding of the topic. On the contrary you disgard the applicable law and common sense and replace it with your interpretations. You don't even have a basic grasp of the fundamental principles.

 

I hope you are not an interpreter by trade, if you are, I would give up the day job. Seriously, you read the word black and interpret it to say white.

 

You confuse ownership of property - land/building with the ownership of a charge, time and time again for no reason.

 

You use the most tenuous link to support your understanding when clear links disprove your understanding.

 

In your post 180 you said "if you refuse from posting" ???

 

I guess you only want people posting that agree with you, yet you say you want a discussion. You even confuse the point of this thread and misunderstand the purpose of a discussion.

 

You accept no responsibility for the rubbish you post. If someone does in anyway use anything you have posted, I hope you will put them up at your place, after their possession hearing.

 

Anyway you have implied you do not want me to post anymore in your thread (understandable as no one likes to be proven wrong), so you will get your wish. I hope you will one day see past your ego but I doubt it.

Edited August 28, 2012 by wfspayback

[applecart]

“Re: Mortgage Securitisation Discussion Thread

Originally Posted by applecart

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).

[/color]

Nope

You will find it is actually a chose in possession that is transferred by delivery and not a chose in action. For a transfer of a chose of action to be effectual at law it must be as per s.136 (including notice to borrower etc)”

Wfspayback…… in the interest of professionalism and regard for fellow human beings…. I do understand where you are coming from… I see no harm in you making the distinction for us, which is great for the thread – we now understand how a ‘chose in possession’ is transferred – Thank you.

 

I do beg to differ with you slightly, because you will find ‘Chose in Action’ is to do with the right to enforce payment of a debt by legal proceedings – However, I agree that BOTH can/are constructively ‘delivered’ at the same time...

 

I’m pleased to see that we agree that no such legal effect is given to any such constructive delivery if s.136 is not complied with : )

 

“Originally Posted by 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

Nope again..

Apple s.1 (1) relates to 'estates in land'

Instead you might just want to read s.1(2) as this relates to interests and charges in or over land. Especially s.1(2c) A charge by way of legal mortgage.”

 

Wfspayback……again, in the interest of professionalism and regard for fellow human beings…. I do understand where you are coming from… I see no harm in you making the distinction for us, which is great for the thread – we now understand how the charge is granted and which legislation makes this possible – Thank you.

Originally Posted by 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

If it has become twisted, it is through your continued misunderstandings. I now fear your misunderstandings are intentional. Or be honest, you read the word possession and jumped feet first to the wrong conclusion that it related to possession by the lender...

he originator is NOT granted 'an estate in fee simple absolute possession' (LPA s.1 (1a) ) by the borrower

The originator IS granted a charge by way of legal mortgage (LPA s.1 (2c) ) by the borrower

Which leads onto s.87 of the LPA

s.87 Charges by way of legal mortgage

(1) Where a legal mortgage of land is created by a charge by deed expressed to be by way of legal mortgage, the mortgagee shall have the same protection, powers and remedies (including the right to take possession proceedings.....

s.88 and s.89 have nothing to do with the lender selling a charge to an SPV but rather the lender selling the property (land/buildings) to a new owner, usually after possession proceedings, free of the original mortgage.

 

Wfspayback……and…again, in the interest of professionalism and regard for fellow human beings…. I do understand where you are coming from… I see no harm in you making the distinction for us, which is great for the thread – we now understand AGAIN how the charge is granted and which legislation makes this possible – again, Thank you.

 

With this wfspayback; you need to factor in, what happens when the mortgage is sold? Is it s.87 that you suggest we turn to for an understanding as to the consequences of the sale??? Likewise, did I read that s.87 refers to the right of the Lender to take ‘possession proceedings’ – my goodness!! I thought it was just to do with creating the charge, I’m terribly pleased that you have made this distinction for us – so, when he sells the charge with the right to possession…. Which section of the Law do we turn to for the understanding there?????? Is it not s.88 for freehold and s.89 for leasehold???

“Originally Posted by applecart

if it is in the name of the SPV - then it denotes that the SPV now owns the estate in fee simple absolute in possession.

Apple”

 

“You honestly believe that the SPV owns the estate in fee simple ?

I am wondering what you interpret an estate in fee simple to mean.... Trust me, it is NOT what you interpret it to mean (no change there then)

Read this

http://www.inbrief.co.uk/property-law/estate-in-fee-simple-freehold.htm

Then let's see if you still interpret that the SPV owns the estate in fee simple absolute in possession.

I know you have had repeated and continued difficulty in the past differentiating between ownership of the land/house and ownership of the mortgage by way of legal charge, by now even you should know the difference. However, here goes -

Please read section (1) of the Law of Property Act 1925, re estates in land which are capable of subsisting or being conveyed or created at law (an estate in fee simple = freehold & a term of years absolute = leasehold)

The owner of the fee simple estate in land, is the owner of that land. When the borrower brought that land / house he gave a mortgage by way of legal charge as security for that loan.

So the borrower is the owner of the fee simple estate in land and the lender is the owner of the mortgage by way of legal charge.

Now absolute means the ownership is exclusive and in possession means that the owner has the enjoyment of the property right now rather than in the future (taken from Wikipedia, as it is clear you are a huge fan)

So fee simple absolute in possession means

The owner of the estate in land has exclusive ownership and has enjoyment of the property today.

Of course this only applies to freehold, 'terms of years absolute' applies to leasehold.

To put it in simple terms, the owner of the fee simple estate in land is the freehold owner.”

 

Wfspayback……and yet again, in the interest of professionalism and regard for you as a fellow human being…. I do understand where you are coming from… I see no harm in you making the distinction for us, which is great for the thread – we now understand the history of ‘fee simple’ and we even have a internet interpretation of what it all means – Thank you.

 

Wfspayback…. When a Borrower grants a charge to the Lender over the ‘estate in fee simple absolute in possession’ – the means of the Lender selling that ‘estate in fee simple absolute in possession’ is by the Lender exercising his inherent right to possession which is by virtue of LPA 1925 s.95 (4) – by doing so……., he is in possession of the ‘estate in fee simple absolute in possession’ – does that make sense? You will observe that regardless of the Lender going into possession that it does not affect the Borrowers legal estate LPA 1925 s.95 (4) …. last sentence.

 

The Lender has 2 ways of entering into possession of the estate in fee simple – either via his inherent right or via a court of Law – for securitisation purposes – it is not the property (court process) that he requires in the first instant – so the inherent power is used instead – it is legal and more than above board for him to do so… does this make sense?

 

If the Estate was one that relates to s.1(a) freehold - then he is in possession of all of that.

If the Estate was one that relates to s 1 (b) leasehold – then he is in possession of all of that.

“Now if you take a few moments to read a 395 form and it's replacement the MG01 form, both state at the top Particulars of a mortgage or charge.

 

In other words it has nothing to do with and does not determine who is the owner of the fee simple estate in land.

 

A FREEHOLD ESTATE IS A FEE SIMPLE IN ABSOLUTE POSSESION.

 

You really need to stop playing the word association games.”

I assure you, there are no ‘word association games’ being made by me wfspayback.

 

You have forgotten, we are dealing with the sale of the an estate in fee simple absolute in possession that has been purchased by the SPV – he has every right to charge that which he now owns – Above, I have provided for you how it is he acquired the fee simple estate absolute in possession… so, by this stage, I am hopeful it is beginning to make sense to you.

“Companies House register, records charges granted by companies over their assests.”

 

‘over their assets’ - Correct.

 

“The Land Registry, records the details of the registered owners of land and the registered charges created by those owners.”

 

‘created by those owners’ - Correct.

“What you have suggested is utter nonsense. You even know that the "dual registration" of which you speak is utter nonsense.”

 

The dual registration wfspayback comes about because the original lender maintains his name on the register at HMLR and the SPV charges ownership of the same said property at Companies House – this is what I mean when I say ‘dual’ – you have to factor in what the status of the charge at HMLR means given the new position during the registration gap period? Is it not held on behalf of the SPV and beneficiaries?

 

“Whoever, let common sense escape this thread, can you please go find it and return it here urgently.”

 

No need, I’m ok – but Thanks for your concern : )

“You say you have researched this topic, I see no evidence in any of your posts of understanding of the topic. On the contrary you disgard the applicable law and common sense and replace it with your interpretations. You don't even have a basic grasp of the fundamental principles.”

 

Wrong – all posts are validated as based on the applicable Law – you have assisted with your own validations, so, Thanks for that : )

“I hope you are not an interpreter by trade, if you are, I would give up the day job. Seriously, you read the word black and interpret it to say white.”

 

I’m not an interpreter, but I’m also no one’s fool either - you only flag up areas within my threads that you need clarification and direct answers to – which is all good – hopefully you are getting the answers you need : )

 

“You confuse ownership of property - land/building with the ownership of a charge, time and time again for no reason.

You use the most tenuous link to support your understanding when clear links disprove your understanding.”

 

??????? – you have yet to provide anything to discount my interpretation of the Law so far in relation to the sale of the mortgages.

 

“In your post 180 you said "if you refuse from posting" ???

I guess you only want people posting that agree with you, yet you say you want a discussion. You even confuse the point of this thread and misunderstand the purpose of a discussion.”

 

Your posts are repetitive, they do not respond to that which has been posted – therefore, why would you expect me to answer that which I have answered time and time again – a discussion must move forward – we cannot afford to stand still going over old ground – those that read this thread seek and require progress.

 

Suetonius and others debated all that you seek to bring to this thread, which is the background for this thread – if readers want the back ground, they are still available as far as I know…. So, no need to do as you have been doing and bringing those contentions here…. Progress is what we are after here…

“You accept no responsibility for the rubbish you post. If someone does in anyway use anything you have posted, I hope you will put them up at your place, after their possession hearing.”

 

Oh look, more derogatory statements…. But then, that’s you all over isn’t it…. We accept you as you are : )

This is a discussion thread, the aim is to keep readers in their own homes actually - there are those that will have pondered over the ‘Why’s’ and ‘How’s’ for years – this thread aims to provide a balance. Why you have a problem with that – is beyond me.

 

“Anyway you have implied you do not want me to post anymore in your thread (understandable as no one likes to be proven wrong), so you will get your wish. I hope you will one day see past your ego but I doubt it.”

 

I said “if you keep posting, I would ignore you”, some of your posts were beginning to resemble the ramblings of an infant wanting to spit out a dummy, in my mind, there is no place here for such childish behavior….

 

You seem to think I spend my time researching this subject and providing this information because of some ‘ego’ trip - I fear it is your own ‘ego’ that may have been unwittingly tarnished right now –

 

I’m sure and more than hopeful that you will dust yourself off and bounce back soon – I do not take your derogatory statements personal because I like to believe you do as you do to make sure we get it right – and, to me, that’s all good : )

 

Apple

[applecart]

I’ve separated this from your main post to answer it directly..

 

“Look at your previous posts, in particular to the Land Registration Act 2002.

S.58 conclusiveness

How can the registry be in anyway conclusive if you was correct in anyway ??????”

 

This the same said question on the lips of Borrowers up and down the Country…. How can a title registered at HMLR be conclusive given the underlying mitigating circumstances...??

 

In the circumstances - if the ‘balance of probability’ begs the same question – Is there a reason why one should not present the balance of probability? - this thread looks to do just that ....

 

Simply put: If you are facing the loss of the roof over your head – would you not do your best to challenge it with what ever information you can use?

 

Put even more Simply: If you are drowning and someone throws you a rope – are you going to ignore it and drown for the hell of it?

 

Apple

 

 

[applecart]

Funnily enough no poster has provided from ‘Pender’ the following statements made by the Judge in 2003:

 

104 “The issue arises out of administration agreements whereby the Claimant sold some of the mortgage debt due to it in order to securitise the loans. The Defendants have been provided with copies of the administration arrangements, which regulate the operation of the mortgages. The Claimant has refused to provide details of the securitisation agreements themselves. There is an application for disclosure in the event that the Defendants are successful in their appeal. “

 

105 “The securitisation arrangements will of course set out the financial package entered into by the Claimant and the other parties. That does not feature in the administration agreement and that must be born in mind.” [my emphasis]

 

In Pender, Paragon ‘refused’ to provide the details of the securitisation agreements.

 

Unlike Pender, sight of the MSA, the POA, Notice of Admission, Companies House registrations are now more or less now available.

 

Borrowers should have an idea of how it is they can go about accessing these documents - the importance of which is that they evidence that a sale took place and that constructive delivery of the rights to the title held by the Originating Lender can be construed as separate from the 'conclusive' nature provided by s.58 ( bare trust - TLATA)

 

This does not in anyway suggest that Borrowers are not subject to the possibility of the SPV joining the proceedings and seek possession in their own right I suspect - I'm looking into this at the moment to see if their is any reliable balance that would present a fair outcome for both the SPV and the Borrower.

 

Apple

[applecart]

With regard to a ‘sub-charge’……by it’s very name it denotes a ‘subordinate’ right…. It implies the creation of a mortgage/charge with a term of 3000 years less a day – and will be evident on the Borrowers title held at HMLR.

 

The SPV’s registration is at Companies House in the name of the SPV charging that which it owns by way of ‘receivables’ (monies – sums owed to the company by it’s various debtors) and ‘collateral’ (security/property acquired by way of the payment or discharge of the secured amounts) to it’s chosen/appointed Trustee.

 

Apple

[applecart]

Oh forgot to mention - A Sub-charge would not cause the Original Mortgagee to lose any of its Legal rights - (thought best to make that apparent...)

 

Given that there is no 'sub-charge' present on the title - but there is a registered charge at Companies house - it's fair to say that the charge at Companies House is not intended to create 'at best' any form of 'sub-charge' - not considering the nature of the regulated securities/stock markets with regard to trading criteria.

 

Apple

[applecart]

Borrowers may well still remain concerned as to where is the balance with regard to the monies due under the mortgage and any obligation they owe to the Originating Lender .............. and of course - any rights of the Originating Lender to possession of the property after they exercise the power of sale (meaning prior to any court intervention)…

 

Looking at the title register itself and considering that which I posted earlier with regard to the ‘restriction’ noted on the Borrowers title…. This is where I was going with it.....

 

If the restriction shows that ‘no disposition of the principal charge should be registered without the consent of the Originating Lender’ – then, this denotes that the Originator has NOT retained rights to possession…. And…

 

On the other hand, let’s say the restriction says: ‘no disposition of the principal charge should be registered without the consent of the SPV’ – this would denote that the Originating Lender would retain rights under the title at HMLR…

 

Do remember – this is all prior to any TR4 form coming into being – we are talking in terms of the Registration Gap period……

 

Apple

[applecart]

If there is no clause in the Borrowers agreement that after the sale, the Originating Lender is responsible to enforce payment of the monies due under the principle charge, this denotes that the Originating lender has no right to the mortgage payments.

 

Further on this point… it would mean that the Originating Lender would have no right to complain of default….(if after a sale – it can be seen that the agreement between you and the Borrower provides that you will not seek obligation from the Borrower – then as I understand it - you cannot in your name complain of default)

 

Default under the terms of the said same agreement is what is used by the Originating Lender to instigate claims for possession – the question begs – where’s the balance here for the Borrower?

 

Apple

[applecart]

Looking at the wording from a Borrowers agreement posted by Non Fitz Carborundun thus:

 

" 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 emphasis]

 

This is not a statement that works in favor of the Originating Lender at all…. Rather it would confirm that After the Sale – the Originating Lender confirms that the Borrower has no further obligation to him. It is fair to say - this provides a semblance of 'balance' for the Borower. As I understand it there can be no claim for default that would lead to a legitimate claim for possession of the property….

 

Apple

[applecart]

Continuing as we do to progress the discussion....

 

The SoGA 1979 tells us that a contract for sale will contain detail of that which is on offer and the price – once executed – all that the document refers to and relates to including it’s terms – is to be delivered to the buyer in exchange for the price – once the price is paid – and the ‘goods’ are ‘delivered’ and then ‘accepted’ – the buyer acquires all that the Originating Lender detailed in the sale contract – and, from the Borrowers perspective, unless provisions are in place to protect the Originating Lenders rights as granted by the Borrower – the sale is complete.

 

The Registration at Companies House, as I understand it, gives Legal effect with regard to the monies and the collateral in favor of the SPV (buyer)

 

Remember…… the terms and conditions of the MSA state that which is agreed between the Seller and the Buyer (SPV) – what they will and won’t do.

 

The Borrowers rights to his Legal Estate are protected by virtue of s.95(4) after the Sale. For an understanding of this see previous posts.

 

Remember also that we are talking about ‘during the Registration Gap period’. As I understand it there is no intent to update HMLR at all made in the MSA – representative of the freedom of contracting parties.

 

The Borrower is not party to the MSA at all – any reference to ‘perfection events’ and ‘perfection acts’ are contractually agreed between seller and buyer.

 

I would have thought the Law would see this as an agreed ‘intention’ – the consequences of which would be interpreted based on that known intention (an intention that was not present in Pender).

 

It was an agreed intention for the Originating Lender to retain it’s name on the title at HMLR for ‘the time being’ (taken from the POA).

 

Who would have thought that during the registration gap period the originating lender in this knowledge would be presenting itself as the one with the legal rights to the title when it will be aware that it is only there by a MSA agreement – the MSA does not convey rights to monies or possession….only for ‘the time being’ to have it’s name on the title…

 

How would a Judge regard the ‘known’ intended conduct of the parties to the MSA in relation to s.58?

 

Would a Judge ignore the intent of the parties? ...... if the known intent was to leave the originators name on the title at HMLR after the sale. (this is a fact that is different to Pender – this is supposing the admin agreement in A.N.OTHER’s case is in the name of a completely different entity)?

 

Would a Judge conclude that in such circumstances that the Originating Lender has retained its rights to monies and possession?

 

Should a Judge only be concerned with s.136, s.27 and s.58 at this point?

 

Apple

[applecart]

If we accept that ‘at best’ the charge in the name of the SPV at Companies House is to be considered a ‘sub-charge’ (which it isn’t) then it would have to show that it is the Borrower who continues to be liable for the debt and evidence within that charge document or a related document that it's intent is to cause the Borrower to remain liable.

 

On the other hand ff the document at Companies House suggests that a secured amount has been discharged in any way – then, that is exactly what it will have done – it will have ‘discharged’ the underlying principal debt… Who’s debt does it discharge? The Originating Lenders or the Borrowers?...........................

 

The only debt at the point of the sale would be the one apportioned to the Borrower by way of mortgage, regardless of how the Originating lender came about the monies loaned to the Borrower.

 

If the debt is that of the Originating Lender, then we would see a sub-charge on the title surely…….with an obligation of the Borrower to discharge the principal debt….to the sub-chargee on behalf of the Originating Lender…………..

 

We would not see a separate charge in the name of the SPV charging in favor of the trustee and registered at Companies House making reference to the SPV having discharged a debt (secured amount) in order to achieve a ‘first fixed security’ – which it charges in favor of the Trustee.

 

Apple

[applecart]

As we know coupled with the MSA is A.N.OTHER’s Power of Attorney – not withstanding previous mention of the TLATA and it’s effect in the scheme of things of course

 

Take on board that ….The Trustee Delegation Act 1999 (TDA 1999) tells us that when an Originating Lender executes a Power of Attorney that the intention of the Donor must be taken to transfer all legal rights to the Donee.

 

See the explanatory notes for s.10 of this Act thus:

 

“Section 10 creates a general rule of interpretation in relation to the authority conferred by a power of attorney in relation to land. The new rule provides that, in powers of attorney created after the commencement of the Act, a reference to land includes, subject to any contrary intention in the power of attorney, a reference to all the interests of the donor of the power of attorney in the land at the time that the donee acts. This new provision prevents the technical distinctions between legal and equitable interests in land frustrating the intentions of donors of powers of attorney who may not appreciate the niceties….”

 

So,…………. if you have used your inherent right to possession (without court intervention in relation to the property) in order to enter into a sale (again, without court intervention in relation to the property) of an estate in fee simple absolute in possession – contracted – sold – delivered and such rights accepted, paid for and registered in the name of the SPV at Companies House – and with Borrowers factoring in the provisions of the TDA 1999…………How does the balance of probability fair in regard to the conclusiveness of s.58 or purported rights to monies and possession at this point?

 

Apple

[slimshaddie]

So,…………. if you have used your inherent right to possession (without court intervention in relation to the property) in order to enter into a sale (again, without court intervention in relation to the property) of an estate in fee simple absolute in possession – contracted – sold – delivered and such rights accepted, paid for and registered in the name of the SPV at Companies House – and with Borrowers factoring in the provisions of the TDA 1999…………How does the balance of probability fair in regard to the conclusiveness of s.58 or purported rights to monies and possession at this point?

 

Apple

 

Securitisation results in the lender using their right to possession, without the knowledge of the borrower that resides in the repossessed property ?????

 

That is a leap of faith to far for any reasonable person.

 

1) If what you say is true, this would mean that nearly everyone has been repossessed by their lender without them knowing - Is that even possible ?

2) If what you say is true it would throw the purpose of possession proceedings into question, doesn't it ?

3)) If the lender has, as you say already taken possession of the property, what is the purpose of possession proceedings ?

4) How can Courts grant a Suspended Possession Orders, when you say the lender has already taken possession ?

5) How can the lender use their inherent right to possession when the borrower was and is still living in the property

6) This would mean that the title register at the land registry is completely meaningless and make the Land Registration Act 2002 and for that matter Land legislation since 1925 worthless.

7) If what you say was true, it would make the borrowers tenants of the SPV's

8) If what you say was true, it would make the SPV's the largest home owners in the UK

9) How can a borrower have a right to redeem after as you say the property has already been possessed by the lender.

 

Of course this would be, if what you say was true. As it isn't, it won't be

 

Well if what you say is true both the Home Repossession and Home Repossession Successes sub forums can be deleted, as according to you, everyone whose mortgage has been securitised has been secretly repossessed and their homes sold to an SPV all without their knowledge and the Land Registry not being informed already.

 

To state that everyone has been possessed without them knowing is incomprehensible.

 

Ask yourself what 'an estate in fee simple absolute in possession' actually is and means, and you will see for yourself just how far off the mark you are.

 

Instead of interpreting the facts to lead you to the outcome that you desire, you should just accept the facts without the need for interpretation to the outcome they naturally lead too. Unfortunately as is the case here, facts do not always lead you to the outcome you desire.

 

I hope you accept this post in the manner it is intended.

[applecart]

Securitisation results in the lender using their right to possession, without the knowledge of the borrower that resides in the repossessed property ?????

Yes, that is correct, the right to possession is an inherent right.

 

That is a leap of faith to far for any reasonable person.

Not so much a ‘leap of faith’ – more a deeper understanding of mortgage securitization and its effect on the borrowers mortgage and rights to stave off possession when the originated mortgage has been sold.

 

1) If what you say is true, this would mean that nearly everyone has been repossessed by their lender without them knowing - Is that even possible ?

 

Do not confuse being re-possessed with a originating lender entering into possession.

 

2) If what you say is true it would throw the purpose of possession proceedings into question, doesn't it ?

 

This is what the balance of probability is throwing up so far.

 

3)) If the lender has, as you say already taken possession of the property, what is the purpose of possession proceedings ?

 

The balance of probability so far suggests that the purpose of possession hearings are to take possession of the ‘physical’ property. For this, the original lender must seek court order. The findings so far are that entry into physical possession of the property itself is not required for the Originating lender to sell its rights both legal and equitable in the legal mortgage it created over the Borrowers legal estate.

 

4) How can Courts grant a Suspended Possession Orders, when you say the lender has already taken possession ?

 

Courts make decisions based on the information before them, originating lenders do not seek possession of the physical property admitting that they have no rights to the legal estate. In Pender, the Originating Lenders refused to submit any more than the admin agreements when challenged.

 

5) How can the lender use their inherent right to possession when the borrower was and is still living in the property

 

When the Originating Lender creates a legal mortgage over the Borrowers estate he is creating a separate legal estate that belongs to him – he can do with that legal estate exactly what he wants to do, for mortgage securitization purposes, he sells it to the SPV. That does not necessitate the need to go into possession of the physical property at all.

 

6) This would mean that the title register at the land registry is completely meaningless and make the Land Registration Act 2002 and for that matter Land legislation since 1925 worthless.

No, I disagree, the balance of probability so far shows that the LRA 2002 serves a purpose for the Originating Lender, it can and does use the conclusiveness of s.58 (1) to seek possession of the physical property itself, on the understanding that the Borrower is totally unaware that the title itself is to be determined given that it will have sold the legal rights to the title to the SPV. It also provides assurance to the SPV that the Originating Lender can and does rely on its name being on the title to protect the interest of the SPV’s investors/beneficiaries.

 

7) If what you say was true, it would make the borrowers tenants of the SPV's

 

No, it does not make the Borrower a tenant of the SPV as far as I can tell.

 

8) If what you say was true, it would make the SPV's the largest home owners in the UK

 

They do not own any physical property until such time as physical possession of the property occurs. The Originating Lender does not own any physical property until the time physical possession of the property occurs, for that, it would need to seek possession via a court of Law.

9) How can a borrower have a right to redeem after as you say the property has already been possessed by the lender.

 

Remembering it is not the ‘physical’ property that will have been possessed. The right to the legal estate is not affected by mortgage securitizations, it is in fact as far as I have found protected by virtue of LPA s 95 (4) - see the last sentence.

 

Of course this would be, if what you say was true. As it isn't, it won't be

 

A lot depends on how you view the subject, if you believe there is no balance, then there will be non, if you believe and understand how the balance is possible, then it will make more sense to you.

 

Well if what you say is true both the Home Repossession and Home Repossession Successes sub forums can be deleted, as according to you, everyone whose mortgage has been securitised has been secretly repossessed and their homes sold to an SPV all without their knowledge and the Land Registry not being informed already.

 

On the contrary, the threads to which you refer serve a purpose and by all accounts provide a fantastic service for many caggers. It is not every mortgage that is securitised and not all that are securitised in the same way. We are getting to grips with the different types of securitization models. Paragon’s is one such model, A.N.Others is showing signs of being possibly a different type.

 

To state that everyone has been possessed without them knowing is incomprehensible.

 

If I have somehow given you this impression from my posts, then I apologise, everyone has not been possessed – as you know the majority of borrowers remain in their homes subject to default – Am I saying that the Originating Lender relies on his inherent right to enter into possession in order to effect a sale of his legal estate – then Yes, in any case where it can be found that an Originating Lender has sold the mortgage – then this is what has happened.

 

Ask yourself what 'an estate in fee simple absolute in possession' actually is and means, and you will see for yourself just how far off the mark you are.

 

I’m not sure of the context you want me to ask myself the question? Are you meaning in relation to the Borrower, the Originator or the SPV???

 

Instead of interpreting the facts to lead you to the outcome that you desire, you should just accept the facts without the need for interpretation to the outcome they naturally lead too. Unfortunately as is the case here, facts do not always lead you to the outcome you desire.

 

I don’t like to presume, but are you suggesting that perhaps I am misinterpreting the findings in Pender? Or are you suggesting perhaps that I do not know the difference between taking possession of the physical property over that of entering into possession of an estate created in fee simple absolute in possession???

 

I hope you accept this post in the manner it is intended.

 

Of course I do, don't be silly.......it’s important to have differences of opinion, questions assist the thread move forward...I’m hopeful nobody finds the manner in which I post that which I do in the wrong way either – I just like to get it said is all……., much the same as anyone else really, all contributions are welcome : )

 

Apple

[nomorecrooks]

bump

[applecart]

I note the Queen is for the first time sitting in with politicians! ..... must be something desperately wrong that needs fixing huh??

 

Apple

[applecart]

Remembering that mortgage securitisation is a GLOBAL issue, its always interesting to pick up on information that can be found in other countries on the topic with regard to any progress they are making...... likewise, it is worth remembering that borrowers are also effectively the underlying unwitting 'investors' in the whole scheme.....

 

sooooo.....I read the information in the link below and interpreted the word 'investor' as if it applied to UK consumers mortgages that have been securitised.......in doing so, it has the making of an interesting analogy..... Please read it for yourselves and consider the implications........

 

http://www.huffingtonpost.com/2010/09/25/wall-street-subprime-crisis_n_739294.html

 

Applecart

[applecart]

It may be, that there are those of you who read the link in the above post literally....placing yourselves as 'investors' (beneficiaries) and misconstrue where I am coming from in posting the link .... thought best to explain further where I am coming from on this......

 

As a borrower, you will have contributed in taking out a mortgage that becomes party to the Mortgage Securitisation Agreement between the Issuer, your lender and others.... to the benefit of investors...

 

I see your 'mortgage' as your investment.... on the basis that you may have paid a deposit to acquire the mortgage or you may have used the equity in your home to do so....notwithstanding the monthly payments that you go on to make...... that in my mind qualifies you as an 'investor'....... the issue for Borrowers of course is that..... Mortgage Securitisation does not provide for a return to you as a Borrower on that investment..... but then.... that was never the Lenders intention.....on the contrary.... the intention was that the Borrower would lose out..... the issuer makes off with the Borrowers deposit/equity and the property for the benefit of beneficiaries (afterall, your mortgage was only 'originated' for their benefit - not yours) - it is for Borrowers to consider this loss and to consider the position for themselves.....What are your rights as a Borrower to sue for a return on your investment???

 

Given that no Borrower enters into a mortgage agreement with the intent of losing deposits paid or equity in their homes....as I understand it, Borrowers enter into mortgages with a view to exercising the right to redeem the mortgage at the end of a given term....

 

On this basis I am beginning to think that we are on the right track to getting to the bottom of legal protections for UK Borrowers in the whole scheme of things?

 

Applecart

[applecart]

Moving this thread forward...as party to the discussion

 

In brief - you may find this latest information quite amazing, alarming, unmeritous etc etc.... all comments are welcome... : )

 

We know that we have sight of MSA's, POA's and Registered charges in the name of the SPV's at Companies house...

 

This denotes that a sale of both the legal and beneficial interest in relation to the mortgage is sold...

 

This is because of the LP(MP)Act 1994 - this supports the finding that a sale with full title guarnatee will mean the whole of the legal and beneficial interest of the lenders mortgage has been sold - so how can they claim that a borrower is in default of the mortgage??

 

Then back this up with the TDA 1999 - s.10 - that again, advises the legal and beneficial interest is sold - so again, how cando lenders claim that any borrower is in default is beyond me????

 

Then take a look at your mortgage deeds......are they signed by both you and the lender???? - if not then the document is void - there is no interest transferred to the lender at all - so how can they claim possession of borrowers houses????

 

After all we do know that mortgage securitisations are dependant on the underlying deed remaining in 'escrow' - i.e signed by the borrower.....but never by the lender...

 

For any interest to be created in land - (the borrowers agreement with the Lender) it must be by deed LPA 1925 s.52 (1)

 

see the LP(MP) Act 1989 - this Act was enacted to ensure clarity in mortgage agreements - look what it clearly says:

 

'An Act to make new provision with respect to deeds and their execution.....and.......contracts for the sale or other disposition of interests in land; and to abolish the rule of law known as the rule in Bain v. Fothergill.'

 

So, although your lender may have a nice cosy relationship with the SPV - how does the cosy relationship work in relationship with the 'not so cosy' relationship with the underlying Borrower????

 

Back this up with the authority in United Kuwait bank 1996 .... and I think we might just be at the beginning of getting to the grips with unscrupulousness lenders...... : )

 

It is definitely time for some serious debate don't you think???????

 

 

Applecart

[applecart]

The Deed signed by the Borrower in favor of the lender is fundamental to the agreement between the lender and the Borrower - if the deed is not signed by the Borrower in compliance with (LP(MP) Act 1989 and by the Lender in compliance with the LPA 1925 s.74B - then the document is not a deed and transfers no interest in relation to the Borrowers house.....then, take into account that essentially the Lender sells what he does not own onto the SPV.... if the deed is not signed the registration at HMLR is subjected to LRA s.58 (2) as a registration in 'pursuance of a registrable disposition' because the deed conferred no rights..... HMLR is effective from the date on the deed..... not at any later date LRA s.67....

 

Practice guide 39 clause 2.2 makes it clear...... HMLR is not conclusive of the underlying deeds between the borrower and the lender only a court can deal with deeds in 'escrow' to make a declaration that the deed is void in relation to rights to possession for want of compliance on the lenders part under LPA 1925 s.74 B..... - NO LEGAL right to POSSESSION

 

Where a deed is signed by the Borrower only = this does not confer any equitable interest in favor of the Lender due to a registered charge showing at HMLR in its favor because LPA 1925 s.40 was abolished since the coming into force of section 2 of the LP(MP)Act 1989 ...NO EQUITABLE right to any interest in relation to the Borrower...

 

 

Lets not forget, the mortgage loan is sold lock, stock and barrel - the LPA 1925 s.1 (7) makes it clear, that where there is an underlying void deed, the most that statute will do.... say under the LRA s.58 (1) is confer an equitable interest..... but, of course - section 2 LP(MP) ACT 1989 works against such a proposition - given the fact that LPA s.40 was abolished - to find the 'part performance' is no longer available to Lenders..........

 

The sale of the mortgage has the same effect as any financial institution etc who sells off debt.... without notice it is unenforcable against the Borrower...so, if you prove the loan has been sold... then there is no mortgage debt or default upon which the lender can claim.....and due to the void deed.... no legal right to possession which the lender can rely upon under statute..

 

 

Be mindful of course of the myriad of 'common law' authorities that Lenders rely on in an effort to override statute..... I say this, even though I understand the comments of one of the caggers in this thread regarding the importance of common law.... sometimes, you just have to remember that Statute is just as important.... because some of the authorities appear to conflict with one another..... depending on which judge decides the case me thinks : )

 

Applecartl

[applecart]

see: United Kuwait Bank plc v Sahib & ors [1996]EWCA Civ 1308 (02 February 1996) was an authority that looked at deeds and whether mortgages came within the 1989 LP(MP)ACT 1989

 

see: Bibby Financial Services Ltd v Magson [2011] EWHC 2495 (QB)

 

It begs the question, if a lender has a void deed...brings a claim for possession.... is that a false claim????

 

see what the Supreme Court say about 'false and lying' claims:

 

Fairclough Homes Ltd v Summers [2012] UKSC 26

 

Hopeful this information helps?

 

Applecart

Edited March 12, 2013 by ims21
Link removed

[applecart]

I think it would be a good idea if the site team moved this thread up to the top - because it is about time borrowers had information that they can truly get there teeth into - it would be nice to see the debate develop into a more meaningful thread - one which Borrowers can ask questions... and see if the latest information can actually assist them or not : )

 

Stuck on page 2, is not good enough when months of research is now coming to fruition in their favor : )

 

Any chance Site team???

 

Applecart