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Kensington will not disclose securitisation


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We shouldn’t turn a blind eye to the tyranny and oppression, as by being contempt to what’s going on is acknowledging their actions as they continue to oppress borrowers.

 

Check out the panorama's Britains Hiddien Housing Crisis http://www.bbc.co.uk/programmes/b01pc1qbas this is just the tip of the iceberg.

 

 

 

Breach of MCOB is a secondary matter which i think are useless provisions as they only regulate mortgages from 31 Oct 2004 onwards and not prior to the date even when it was identified prior to the date the misconduct of lenders. So unregulated mortgages are left out with the wolves which were the very foundation for the MCOB to be implemented.

 

Breach of duties/responsibilities do not necessary require MCOB provisionsas a breach in contract is a primary matter which can be easily identified by assessing the terms and intent before and after the contract and the performance of either party. Contracts go back a long time and remain the principal for any agreement to be in effect. The general provisions of a contract dictate the fairness and equality of the parties involved. A disclosure is a pinnacle factor for a contract to be in force with many other factors and without proper disclosure, important matters are left in the dark which could be critical effecting how either party performs under the contract.This non disclosure creates unfairness and an imbalance leaving either party vulnerablet o the elements. Im not a professional in the field of contracts/law but alotis common sense as that is how law originally developed.

 

Its not difficult to understand or prove the lack of ownership/duties/responsibilitiesfrom the originating lender to the borrower in the case of KML. KML is restricted within the group and bound to the other agreements which took effecton securitisation. Duties/responsibilities are therefore sent through the various channels at the discretion of those whom remain owners or in charge of the loans/Notes.

 

I hope you see why im asking for the information to help me with my journey. Ive managed to get my securities document where my mortgage is located part of the pool. Its quite an interesting read, now I need to find the mortgage sales agreement and some pointers in the right direction.

 

By the way where are all the experts on securitisation what happened to them? I know im late in this game as some of the securitisation threads go way back, have they signed non disclosure agreements, to not let others know what they managed to find out?

 

I do not disagree with your thoughts. However, I can't see a logical argument that will persuade a district Judge.

 

Good luck!

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Except for your comments about the advisor, how is KMreally any different with regard to securitisation to every other lender ?

 

Virtually all lenders securitise debts, be it mortgage debt, credit card,hire purchase etc. Even the Bank of England is involved in securitisation,there are also now numerous legal cases involving consumers, questioningsecuritisation - most recently two Northern Irish cases.

 

In every case, it has been concluded that legally there is nothing wrongwith securitisation.

 

Hi again bhall, I understand your missing my point and cant see the elephant in the room, let me explain with an analogy..

 

(a) Driving a car is legal

 

(b) Driving a car DANGEROUSLY is illegal

 

© Driving a car WITHOUT DUE CARE AND ATTENTION will also get one in trouble.

 

I hope you understand the differences of the matter and the concerns I bring. I would like to raise further points to clarify the matter:

 

(1) you seem to have generalised securitisation with all that which is connected to fractional reserve banking where as my concerns are specifically with mortgage securitisation which is a modern art. Not all securitisation of instruments have the same long term commitments and effects on borrowers so this needs to be distinguished to individual markets

 

(2) if it can be identified that many organisations are generally involved in securitisation, does not automatically conclude that their acts are correct regardless of who is the brand (look at Barclays and HSBC riddled with fraud and corruption while everyone including the Bank of England where complacent)

 

(3) the concerns raised here are not with mortgage securitisation or the way its completed but concerns with how a borrower is left more vulnerable as the discretion and responsibilities of the original lender have changed. No disclosure or due care is given to the borrower whilst all interest is with investors. What was contracted was equality and fairness with both parties in a mutual relationship but securitisation creates a one sided contract.

 

I hope you see the effects of mortgage securitisation, what a borrow erexpected and what they got were two different things. Its really that simple.

 

I’ve not come across the Northern Irish cases, would be interested inlooking at the concerns raised and how they were addressed.

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Bank of Scotland Plc v McGuigan [2012] NIch 19

 

Wellstead v Judge White & Anor [2011] IEHC 438

 

You could also read

 

Paratus AMC Ltd & Anor v Countrywide Surveyors Ltd [2011] EWHC 3307

 

In addition to the Eurosail-UK 2007-3BL cases and the Pender cases.

 

All of the above cases may assist you with your understanding and to reach the point you want to reach.

 

Yes Mark, I am Bones

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  • 2 months later...

Not to take away from the caution advised by 'bhall' but.....I understand your concern, grey areas are not clear, and Borrowers simply want to be sure where they stand... right?

 

If Kensington are not willing to provide you with the securitisation documents, this should not deter you from considering your rights...

 

I have debated this securitisation issue in depth... I've seen the MSA's, POA's etc.. and continue to discuss them and their effects given the substantive applicable Law and the effect on the mortgage generated between the Lender and the underlying borrower.

 

I have concluded, having read this post that... it is not necessary for you to get copies of the securitisation documents per se... it's great if you can, but don't worry if you can't..

 

The disclosure will not affect your right to see where the relationship between you and the lender stands....(in fact, it will be less confusing for Judges if you don't mention securitisation at all... the minute you do... they immediately think of Paragon v Pender and will cause you to defend that authority...if you are not clued up, then you will fail, in fact - even if you are clued up, they do their best to ensure you fail - far too much at stake... if you get my drift...)

 

The quickest and easiest way to find out if you and your lender have a legal relationship is to get a copy of the mortgage deeds from HMLR.... the official copy of which is permissible in a court of Law as having the same effect as if it is the original ... LRA 2002 s.67 (this way, you don't even have to let the lender know that you are making any enquiries - you are simply exercising your right to information that concerns you from a reliable source)

 

If both you and the lender have signed it, then you have a legally binding relationship with the lender - if they have securitised, then you will need evidence of the sale, to effect a challenge that the lenders rights operate in equity only - but, this is not proving to be the easiest thing to do...

 

If only you have signed it, and the lender has not, then you don't have a legally binding relationship - you would be able to move a challenge forward without having to mention securitisation of the mortgage, and base your entire challenge on the void deeds.

 

I hope this helps?

 

Apple

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[COLOR="red"][B][CENTER]"Errors do not cease to be errors simply because they’re ratified into law.” [/CENTER][/B][/COLOR][B][CENTER] E.A. Bucchianeri[/CENTER][/B]

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Ive seen arguments made regards to "legal or equitable assighnment" and if equitable assighnment for a charge is correct. To be honest this is way beyond me. What i'd like to know is, should the terms include "legal or equitable assighnment" within the mortgage conditions or is that at the lenders discreation?

 

 

 

As i now understand, the products which IFA advise on are created by the lender for the IFA to sell. These products are created by the lender for the purposes of securitisation (in kensington's case).

The application (borrowers details and product) is submitted to lender for it to be underwriten. This underwritten process determines the applications success and in essence starts the securitisation process. please correct if wrong.

 

How would one obtain the relevant mortgage sale agreement?

 

@ Nav:

 

you will be interested to learn that a case has been heard this year whereby the Court ordered Kensington to disclose that it was the appropriate party to the court by the end of January. Surprise: Kensington has not responded to the Court.

 

you will alse be interested to learn that I have been pressing Kensington on this point since November of last year and Kensington squeals like a piggy (have you seen Deliverance?).

 

Your arguments are being tested in and out of the courtroom as we speak!

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Hi all,

 

The securitisation of mortgages seems to be the most confusing subject evenwith the information and discussion on the forum. I spoke to Kensington on thematter, they told me they are unable to give me the information as its is notrelevant to me and securitisation does not effect me or my mortgage obligations. I asked if i SAR for the info to which i was told even then they will notdisclose to whom my mortgage is securitised with. I thought under SAR theinformation i would ask for would be given but Kensington are refusing. Any onesuccessfully get securitisation info from their lenders and what should i do toget the info i am requesting?

 

Nav110: I have recently received my SAR bundle from Kensington and surprise: there is no information about securitization.

 

I have therefore written a CPR 31.14 letter to Kensigton requiring copies of the relevant documentation.

 

I'll let you know how I make out...

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Nav110: I have recently received my SAR bundle from Kensington and surprise: there is no information about securitization.

 

I have therefore written a CPR 31.14 letter to Kensigton requiring copies of the relevant documentation.

 

I'll let you know how I make out...

 

Hi

 

Did someone say that Kensington's SPV is 'GEMGARTO' - if so, these links show where all the documents are kept...The issue as far as I can tell is that you need to 'sign-in' to access them....

 

The Prospectus is here:

http://www.centralbank.ie/regulation/securities-markets/prospectus/Lists/ProspectusDocuments/Attachments/12456/Base%20Prospectus.pdf

 

All the Sale documentation is here:

 

http://www.ctslink.com/SeriesDocument.do?shelfId=GEMGARTO&seriesId=20121&tab=DEALDOCS

 

Hope this is of use to you?

 

Apple

[COLOR="red"][B][CENTER]"Errors do not cease to be errors simply because they’re ratified into law.” [/CENTER][/B][/COLOR][B][CENTER] E.A. Bucchianeri[/CENTER][/B]

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Bank of Scotland Plc v McGuigan [2012] NIch 19

 

Wellstead v Judge White & Anor [2011] IEHC 438

 

You could also read

 

Paratus AMC Ltd & Anor v Countrywide Surveyors Ltd [2011] EWHC 3307

 

In addition to the Eurosail-UK 2007-3BL cases and the Pender cases.

 

All of the above cases may assist you with your understanding and to reach the point you want to reach.

 

There is now also

 

Santander UK Plc v Harrison & Anor [2013] EWHC 199 (QB) (07 February 2013)

 

http://www.bailii.org/ew/cases/EWHC/QB/2013/199.html

 

 

This a case that may be of interest to anyone with a Mortgage with Santander. Whilst this case does address the 'title to sue' issue, if only briefly -

 

 

"The borrowers' argument that the matters set out above mean that the bank no longer has title to sue in this action proceeds as follows.

 

First, they say that there has been a legal assignment of the bank's rights under the loan agreement pursuant to section 136 of the Law of Property Act 1925. This provides:

 

"(1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice – (a) the legal right to such debt or thing in action; (b) all legal and other remedies for the same; and © the power to give a good discharge for the same …

 

Second, they say that receipt of the information referred to at [38] above pursuant to their data protection request constituted express notice in writing to them of the assignment for the purpose of section 136.

 

Third, they acknowledge that if the loan agreement is not regulated by the Consumer Credit Act 1974 its assignment will not affect the bank's right to sue for possession and enforce the mortgage as the legal holder of the registered charge (see Paragon Finance Plc v. Pender [2005] EWCA Civ 760, [2005] 1 WLR 3412 and the old case of Morley v. Morley (1858) 25 Beav 253). However, they say that regulation under the Act makes all the difference because the effect of assigning the loan is that the assignee becomes "the creditor" under the Act and is therefore the only person who can serve the default notice which is necessary under section 87 "before the creditor or owner can become entitled, by reason of any breach by the debtor … of a regulated agreement, … to recover possession of any goods or land, or … to enforce any security".

 

The short answer to this argument is that, as I have already held when dealing with the capitalisation issue, the loan agreement was not an agreement regulated under the 1974 Act. However, even if the agreement were so regulated, I cannot see that the title to sue issue could make any difference to the outcome of this action. Since the bank accepts that no default notice complying with the Act was served on the borrowers by anyone, the claim would fail if the agreement were regulated under the Act regardless of whether the bank or an assignee has title to sue. For this reason, I refuse permission to appeal on this issue."

 

it also deals with an assumed notice of assignment (as per s.136 of the LPA) as a result of information supplied as a result of a DPA request. To put it briefly information supplied as a result of a DPA request is not considered to be a notice of assignment.

 

"The first is that even on the assumption that there was an "absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only)" of the bank's rights under the loan agreement, I am not persuaded that information which was only discovered pursuant to a data protection request is capable of constituting notice of an assignment for the purpose of section 136 of the Law of Property Act. Notwithstanding the decision of the Court of Appeal in Van Lynn Developments Ltd v. Pelias Construction Co Ltd [1968] 1 QB 607, by which of course I am bound, that no particular formality is required for notice of assignment to be given so long as the notice makes it plain that there has in fact been an assignment, I would not regard information provided in this way as constituting "express notice in writing … given to the debtor" when in fact the person providing the information which is said to constitute such notice makes clear that it is doing nothing more than providing information to which the recipient is entitled pursuant to a data protection request. On any view, however, the information provided in this case does not satisfy the Van Lynn test because it does not make plain that there has been an absolute assignment of the loan agreement. That is merely an inference which the borrowers draw, which may possibly be correct, but is not a matter of which they have been given notice."

 

It does however, raise the question in terms of fairness of securitisation

 

"As indicated above, it is the borrowers' case that the bank treated them unfairly within the meaning of section 140A of the Consumer Credit Act 1974 because it did not comply with their requests for further accommodation when they were unable to keep up the repayments in circumstances where, they say, a reasonable lender would have been prepared to do so. They assert that the reason, or at least a reason, why the bank acted unfairly may have been (they do not assert that it actually was) because it was constrained to do so by the terms of its agreement for securitisation of the loan. However, when I asked Mr Pugh to identify by reference to the securitisation agreement dated 12 November 2010 referred to at [39] above the terms which gave rise to this concern, he could only refer to clause 8.4. He accepted that it was a fair summary of the borrowers' case to say that the relationship was unfair because the risk of being required to repurchase the loan under clause 8.4 might have led the bank to refuse an accommodation which they were not contractually obliged to make but which they might have been prepared to make if they had not sold the loan in the first place. I say nothing about the ultimate merits or otherwise of the borrowers' case on unfair relationship, but put in this way it seems unlikely in the extreme that the fact of securitisation will add anything to it.

 

That seems even more unlikely in view of the bank's evidence that those of its employees who deal with customer relations and debt recovery would be unable to determine from the account data available to them whether a particular customer account had been securitised. I acknowledge, however, that at present this is second-hand evidence, which has not been tested.

 

The borrowers contend, nevertheless, that the burden is on the bank to prove that the relationship was fair, that such an issue can only be determined at a full trial (relying on the decision of Peter Smith J in Bevin v. Datum Finance Ltd [2011] EWHC 3542 (Ch)), and that the numerous paragraphs in their Defence in which they expound the case summarised above should not be struck out.

 

I accept that the burden is on the bank, once the issue is raised, to prove that the relationship is fair. That is the effect of section 140B(9) of the 1974 Act. However, it is unnecessary to consider whether the borrowers have done sufficient to raise the issue of unfair relationship generally, because (subject to the issue referred to at [10] above whether the FSMA 2000 applies) Mr Ross for the bank accepts that they have. It is unnecessary also to consider whether or in what circumstances it is ever possible to strike out an unfair relationship defence, because that is not what Mr Ross is seeking to do. He accepts that it will be open to the borrowers at trial to argue that they have been treated unfairly because of the bank's refusal to comply with their requests and that the bank will need to produce disclosure and witness evidence to discharge the burden of proving that its treatment of the borrowers was fair. He accepts further that if such disclosure or evidence were (contrary to the bank's stated position) to suggest that constraints arising as a result of securitisation of the loan had played a relevant part in the bank's decision-making, or that customers whose loans had been securitised were treated differently from those whose loans had not been, it will be open to the borrowers to rely on that fact and to seek appropriate specific disclosure even if the judge's order striking out the relevant paragraphs of the borrowers' pleading stands.In these circumstances I regard the judge's order striking out those paragraphs, which are both speculative and unnecessary and are part of a pleading which is already inordinately prolix, as a sensible case management decision. The judge was right to regard them as "no more than an attempt to unearth some fresh material, which might in some way assist" the borrowers. If they were allowed to remain, they would no doubt be used as a launching pad for speculative disclosure requests, which would further delay these already delayed proceedings. I refuse permission to appeal on this issue."

 

 

 

 

This case would appear to be relevant to this thread based upon the concerns raised by the OP.

Edited by citizenB

 

Yes Mark, I am Bones

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  • 3 months later...

Finally received the much anticipated letter from kensington, 6 months late thou..

 

Anyways, kensington confirmed mortgage to be securistised but will not disclose any further information on the subject as the information is irrelevant to me :|

 

They say:

 

We may sell or transfer our rights and obligations under your mortgage to anyone at any time. If we do sell or transfer your rights and obligations will remain exactly the same, save that reference to the variable rate will be to the rate of interest determined from time to time by the transferee.

 

They also sent me the deeds which are only signed by me and witness, so i understand that they still have legal title and have given the SPV equitable title. If they are no longer the lender and the alleged debt has been cleared by the selling of the mortgage note then should it not be that any charge be removed? Is it not a condition of the deed that once the loan amount is settled that deeds could be released? I would be open to suggestions on how this could be achieved.

 

The securitisation exposes the whole concealment of the true nature and intent of lending. Is this not a case for unfair relationship and unfair terms as my lender is:

 

a: no longer a lender but acting as an administrator/service provider for all parties involved, and to collect monthly payments from myself to pay for the securitisation process rather than to settle any alleged debt

b: When kensington sold/trasnfered their rights, any finance received in return would have settled any debt, with this being the case, then what contractual agreement did i ever have to fund and finance further investments?

c: with kensington no longer acting as lender, has any party taken the position of a lender to provide further funds or assistance rather than to repossess in the interest of its investors

d:The whole setup of securitisation is in the interest of the investors, note/bond holders rather than the borrower. As a borrower im the most vulnerable and the one with the biggest loss

 

If I and others were made aware of this process from the onset then many of us would have been reluctant to sign up to such deceiving mortgage agreements. Im wondering if this could substitute to deception and fraud, as im an undisclosed party to the investments made. Also is their not a duty on the lender to be fair, clear and transparent? If these crooks dont have anything to hide then why dont they disclose the full scale of whats going on so we the public can make a proper informed decision, and to give a thumbs up where its all aboveboard and transparent and to get redress where its due.

 

Also ive come to the understanding that these crooks have our power of attorney and hence can carry out such investments under our mortgage without us realising or being informed. This can constitute to a breach of trust.

 

 

nomorecrooks

 

you will be interested to learn that a case has been heard this year whereby the Court ordered Kensington to disclose that it was the appropriate party to the court by the end of January. Surprise: Kensington has not responded to the Court.

 

you will alse be interested to learn that I have been pressing Kensington on this point since November of last year and Kensington squeals like a piggy (have you seen Deliverance?).

 

Your arguments are being tested in and out of the courtroom as we speak!

 

Hi nomorecrooks, did u find any relief on the matter?

I think its time we took class action as many of us are effected with kensingcrooks!

 

 

@Apple, ive been checking the thread about the deed being void if no lender sig etc, and would like to say that its has been informative and quite the tennis game between u and bhall. Great stuff.

Wanted to ask if their have been any cases where this may have been used etc.

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Hi bhall,

 

can you please explain the following in simple English, my heads spinning..

 

t does however, raise the question in terms of fairness of securitisation

 

"As indicated above, it is the borrowers' case that the bank treated them unfairly within the meaning of section 140A of the Consumer Credit Act 1974 because it did not comply with their requests for further accommodation when they were unable to keep up the repayments in circumstances where, they say, a reasonable lender would have been prepared to do so. They assert that the reason, or at least a reason, why the bank acted unfairly may have been (they do not assert that it actually was) because it was constrained to do so by the terms of its agreement for securitisation of the loan. However, when I asked Mr Pugh to identify by reference to the securitisation agreement dated 12 November 2010 referred to at [39] above the terms which gave rise to this concern, he could only refer to clause 8.4. He accepted that it was a fair summary of the borrowers' case to say that the relationship was unfair because the risk of being required to repurchase the loan under clause 8.4 might have led the bank to refuse an accommodation which they were not contractually obliged to make but which they might have been prepared to make if they had not sold the loan in the first place. I say nothing about the ultimate merits or otherwise of the borrowers' case on unfair relationship, but put in this way it seems unlikely in the extreme that the fact of securitisation will add anything to it.

 

That seems even more unlikely in view of the bank's evidence that those of its employees who deal with customer relations and debt recovery would be unable to determine from the account data available to them whether a particular customer account had been securitised. I acknowledge, however, that at present this is second-hand evidence, which has not been tested.

 

The borrowers contend, nevertheless, that the burden is on the bank to prove that the relationship was fair, that such an issue can only be determined at a full trial (relying on the decision of Peter Smith J in Bevin v. Datum Finance Ltd [2011] EWHC 3542 (Ch)), and that the numerous paragraphs in their Defence in which they expound the case summarised above should not be struck out.

 

I accept that the burden is on the bank, once the issue is raised, to prove that the relationship is fair. That is the effect of section 140B(9) of the 1974 Act. However, it is unnecessary to consider whether the borrowers have done sufficient to raise the issue of unfair relationship generally, because (subject to the issue referred to at [10] above whether the FSMA 2000 applies) Mr Ross for the bank accepts that they have. It is unnecessary also to consider whether or in what circumstances it is ever possible to strike out an unfair relationship defence, because that is not what Mr Ross is seeking to do. He accepts that it will be open to the borrowers at trial to argue that they have been treated unfairly because of the bank's refusal to comply with their requests and that the bank will need to produce disclosure and witness evidence to discharge the burden of proving that its treatment of the borrowers was fair. He accepts further that if such disclosure or evidence were (contrary to the bank's stated position) to suggest that constraints arising as a result of securitisation of the loan had played a relevant part in the bank's decision-making, or that customers whose loans had been securitised were treated differently from those whose loans had not been, it will be open to the borrowers to rely on that fact and to seek appropriate specific disclosure even if the judge's order striking out the relevant paragraphs of the borrowers' pleading stands.In these circumstances I regard the judge's order striking out those paragraphs, which are both speculative and unnecessary and are part of a pleading which is already inordinately prolix, as a sensible case management decision. The judge was right to regard them as "no more than an attempt to unearth some fresh material, which might in some way assist" the borrowers. If they were allowed to remain, they would no doubt be used as a launching pad for speculative disclosure requests, which would further delay these already delayed proceedings. I refuse permission to appeal on this issue."

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Hello Nav

 

If you look at some (not all) Mortgage Sale Agreements, they include clauses which could be interpreted as 'pushing' the borrower into losing their home and limiting what the lender can do to help the borrower.

 

If you take a look at the Pre-Action Protocol for possession

 

7 Further matters to consider before starting a possession claim

 

Starting a possession claim should normally be a last resort and such a claim must not normally be started unless all other reasonable attempts to resolve the position have failed. The parties should consider whether, given the individual circumstances of the borrower and the form of the agreement, it is reasonable and appropriate to do one or more of the following –

(1) extend the term of the mortgage;

(2) change the type of mortgage;

(3) defer payment of interest due under the mortgage;

(4) capitalise the arrears; or

(5) make use of any Government forbearance initiatives in which the lender chooses to participate.

 

If any clause within the Mortgage Sale Agreement limits any of the above you could argue that it is unfair, as another borrower with the same lender, who's mortgage has not been securitised may benefit from one of the above.

 

Depending on the Mortgage Sale Agreement this could be easy to prove.

 

Yes Mark, I am Bones

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Hi Nav110,

 

'@Apple, ive been checking the thread about the deed being void if no lender sig etc, and would like to say that its has been informative and quite the tennis game between u and bhall. Great stuff. Wanted to ask if their have been any cases where this may have been used etc.'

 

Ben and I have certainly gone head to head on the issue...i'd like to think that we have added to each others knowledge....right Ben?

 

There are no 'reported' i.e successful cases within the public domain between a sub-prime lender and a consumer/Borrower...but, having said that, there are a number of cases that shine a light on the possibility of a successful outcome for consumers/borrowers as gleaned from cases that have been of a more 'commercial nature'..i.e Bibby v Magson, 'Garguillo' ...

 

Another cagger is currently looking to assist a friend right now- looking to explore the possibilities from a consumer/borrowers point of view.

 

Both Ben and I have considered the likely pros and cons of his case...so far, an ambiguous response has been received,.....accordingly it needs looking into further....I can clearly see where the response is flawed, but that cannot be certain until we know what it was the Cagger submitted by way of application...and of course, whether the initial response has come from staff at HMLR whom may have intercepted the application for any reason.....or indeed whether the application arrived with the actual Property Chamber itself.....

 

It has to be said, whether you look to challenge your lender due to....the deed being void, an unfair relationship, the ethics of securitisation or a combination of all these issues.....it will not be an easy one.

 

 

Hope this helps?

 

Apple

[COLOR="red"][B][CENTER]"Errors do not cease to be errors simply because they’re ratified into law.” [/CENTER][/B][/COLOR][B][CENTER] E.A. Bucchianeri[/CENTER][/B]

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Hi bhall,

 

can you please explain the following in simple English, my heads spinning..

 

Basically, the decision was that whilst the Borrower was well within its right to raise a unfair relationship defence, and the Lender accepted that that is the case due to the securitisation of the mortgage,... the Judge felt that it would only cause further delay and refused permission for the Borrower to appeal on the issue at that time...

 

In other words a defence of 'unfair relationships' due to the securitisation of a mortgage is not misplaced at all, but if brought as an 'add-on' defence late in proceedings, the court has discretion to by-pass the defence...

 

Apple

[COLOR="red"][B][CENTER]"Errors do not cease to be errors simply because they’re ratified into law.” [/CENTER][/B][/COLOR][B][CENTER] E.A. Bucchianeri[/CENTER][/B]

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Another cagger is currently looking to assist a friend right now- looking to explore the possibilities from a consumer/borrowers point of view.

 

Both Ben and I have considered the likely pros and cons of his case...so far, an ambiguous response has been received,.....accordingly it needs looking into further....I can clearly see where the response is flawed, but that cannot be certain until we know what it was the Cagger submitted by way of application...and of course, whether the initial response has come from staff at HMLR whom may have intercepted the application for any reason.....or indeed whether the application arrived with the actual Property Chamber itself.....

 

Ambiguous response ?

 

According to the Oxford Dictionary 'Ambiguous' means:

 

"open to more than one interpretation; not having one obvious meaning:"

 

well he has had an order from the Property chamber as it is now known and it states; (Going by what he has said over the phone)

The application should be struck out as it has no prospect of succeeding

The LR should be removed as the respondent and the lender be put in its place

the reasons being;

HM is not a party to the charge(we never said they were)

The application is made under sec 108(2) of the LR act (?) 2002.

The tribunal has no power to make an order to alter the register when exercising its jurisdiction under sec 108 (2), it can only rectify or set aside a document under sec 108 (2) and the register of title is not a document for the purpose of that provision.

Charges do not as a matter of law(?) always require execution by the lender as well as the borrower.

The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.

The charge is not in a form showing that it is required to be executed by the lender

The LR form CH1 does not require execution by a lender except where a note on the register of an obligation to make further advances has been applied for.

 

we have 14 days to make representations.

 

I have read and re read the law on this and I can not for the life of me see where this has charged, its not only me reading what I what to read or see what I whant to see but it is there.

So apple any thoughts???

 

I said all a long this will be a fight and very hard to get justice as this was all done behind closed doors.

 

 

Now we can take an educated guess from Is It Me?'s post that the order did not come from 'staff at HMLR whom may have intercepted the application for any reason' - Even for Apple that is clutching at straws.

 

I say this because Is It Me? firstly said that it was from the Property Chamber and that the response states 'The application should be struck out as it has no prospect of succeeding'. Is Apple really attempting to imply that some random person at the HMLR intercepted Is It Me?'s application and thought that the would reply on behalf of the Property Chamber and say that the application should be struck out as it has no prospect of succeeding.

 

As confirmed by the Tribunal Procedure (First-tier Tribunal) Property Chamber) Rules 2013

 

9 (3e) confirms:

 

Striking out a party’s case

 

(3) The Tribunal (not some random person at the HMLR) may strike out the whole or a part of the proceedings or case if—

(e)the Tribunal considers there is no reasonable prospect of the applicant’s proceedings or case, or part of it, succeeding.

Apple considers the response to be'Ambiguous'

 

According to the Oxford Dictionary 'Ambiguous' means:

 

"open to more than one interpretation; not having one obvious meaning:"

If we recall, Apples long established argument is that if a mortgage deed has not been signed by the lender it is void. The Property Chamber in response has said

 

  • Charges do not as a matter of law always require execution by the lender as well as the borrower.
  • The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.

Rather than being Ambiguous as claimed by Apple, the response appears to be quite clear - being that if the lender does not sign the mortgage deed, it is not automatically void. As previously stated, these conclusions go to the very core (no pun intended) of Apples argument and blows it wide open.

Edited by bhall

 

Yes Mark, I am Bones

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Ben, this folly of yours jumping from thread to thread like a frustrated Bee is getting rather tiresome...but, let me flatter you once again...

 

Your reference to the property chambers response is mis-guided.....you are trying to make out that the response is 'official'...when it clearly points out:

 

The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013

You are here: 2013 No. 1169 (L. 8)PART 2Delegation to staff Rule 5

 

“Delegation to staff

 

5.—(1) Staff appointed under section 40(1) of the 2007 Act (tribunal staff and services) may, with the approval of the Senior President of Tribunals, carry out functions of a judicial nature permitted or required to be done by the Tribunal.

 

(2) The approval referred to at paragraph (1) may apply generally to the carrying out of specified functions by members of staff of a specified description in specified circumstances.

 

(3) Within 14 days after the date that the Tribunal sends notice of a decision made by a member of staff pursuant to an approval under paragraph (1) to a party, that party may apply in writing to the Tribunal for that decision to be considered afresh by a judge”.

 

Let’s look at the parts of the response you rely on for your current frenzy around the forum shall we…..

 

Charges do not as a matter of law always require execution by the lender as well as the borrower.

The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.

 

Is It Me clearly advised that he had 14 days to make further representation.... is that not true??

 

What does the ‘response’ suggest to you now Ben… given Rule 5 above….???

 

The application hasn't even got before a Judge yet Ben...so why are you bouncing around the threads, glorifying points made in the response as the Order of the Tribunal is beyond me.... and no doubt anyone else that can read for themselves what is becoming mre than obvious as to the procedures carried out within the Property Chamber.....

 

How foolish you have been Ben...making out that this comment: 'The application should be struck out as it has no prospect of succeeding' is the be all and end all of the matter.... what on earth is wrong with you??

 

The response is not an Order or ‘official’…Is It Me has the opportunity to take it further… and has the opportunity to do so within 14 days…..Is it any wonder that Is It Me has said he will not respond to your posts any more….

 

I and many others are still waiting for you to advise us of your interpretation of a Specialty Deed....and why and how the LRA 2003 s.23 stands to contradict your reliance on 'Eagle Star'? for starters...concentrate on that for us for a while will you...and stop this bouncing around the threads with unfounded posts... your making me dizzy... : )

 

Apple

[COLOR="red"][B][CENTER]"Errors do not cease to be errors simply because they’re ratified into law.” [/CENTER][/B][/COLOR][B][CENTER] E.A. Bucchianeri[/CENTER][/B]

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