SPML/LMC anyone claimed for mis selling and unfair charges?

[I'm the bad guy?]

all,

more to follow....revealed the noteholders/investors/creditors, who own your mortgage:

http://www.bailii.org/ew/cases/EWHC/Ch/2009/1912.html

http://www.elexica.com/briefdoc.aspx?id=7619&code=eedeb6cf666219a1

‘Counsel for Lehman argued that such contractual provisions were contrary to the "anti deprivation" principle under English law (ie that contractual provisions should not be permitted to prejudice creditors of a company in the event of insolvency by providing for the actual or effective removal of an asset from the insolvent estate).’

inclusive of SPML/PML insolvent?

I choose to fight on, can I suggest we keep this thread as is, and open a new one for the performance issue?

ITBG?

nobody

[ryde]

Have I GOT THIS RIGHT So this actually means that the mortgage can be removed/DELEVERED from lehmans bankrupt estate and assets by the investors/noteholders due to the contractual promises lehman made in the prospectuses? if this is so what would be the implications of this,they could be explosive.The INVESTORS obviously want their capital back quickly and are not prepared to have to make a claim on the whole lehman estate where they might after a long wait get 10p in the pound.???????!!!!! NO WONDER MORTGAGE PAYMENTS ARE GOING DIRECTLY INTO THE SPV ACCOUNTS THE INVESTORS MUST BE TEARING THEIR HAIR OUT BUT FROM WHAT I CAN GATHER THE INVESTORS SEEM TO HAVE THE JUDGE ON THEIR SIDE.SOME PRETTY GOOD DETECTIVE WORK ITBG

Edited September 27, 2009 by ryde

[Crapstone]

A lot to digest so can't comment until I've read it all and even then it's stayed in the UK until 1/10/09.

 

It does however seem that the judges are going in favour of what is an economical solution and not the letter of the law. Moving the goalposts...

[Crapstone]

I wonder how any of this would work, providing that the subject matter includes our houses. Our contracts would prevail and the various solutions available to us would surely make any recouping pointless and costly to any investor.

 

It's more likely that a pay off would happen and the fixed assets would remain with Lehmans due to the complex nature. The investors aren't going to want a slice of property with all the admin costs and hoops to jump through.

[ryde]

Problem for lehmans is they are insolvent and havent any assets thats why theyre trying to wriggle out of this.The noteholders and equitable owners of everyones mortgage are trying and succeeding in de levering these pools of mortgages away from lehmans,they would then own a huge tranche of mortgages which one would assume would then be sold to the highest bidder.this is understandable from their point of view as a claim against lehmans will take years,the spvs are not producing the returns and any claim on lehmans assets will be diluted by all the other claims.

[JonCris]

Oh dear looks like the wheels are finally beginning to fall off as this action will almost certainly clarify who owns what AND who has the legal cause of action ............................ Wadda you think Sue

[Suetonius]

Oh dear looks like the wheels are finally beginning to fall off as this action will almost certainly clarify who owns what AND who has the legal cause of action ............................ Wadda you think Sue

 

Hello JonCris;)

 

 

If in the event of default by the Lender (SPML or PML) the legal title is assigned to the Issuer or Trustee, then what has previously been sold to the SPV ?

 

Doesn't it further confirm that as a result of securitisation initally it is the equitable title that is sold ?

 

http://www.elexica.com/briefdoc.aspx?id=7619&code=eedeb6cf666219a1 (the document posted by ITBG?)

 

"As is common, the collateral was charged in favour of the trustee and under the provisions of the waterfall, on the termination of the swap by virtue of counterparty default (ie the Lehman bankruptcy)"

[Suetonius]

Oh dear looks like the wheels are finally beginning to fall off as this action will almost certainly clarify who owns what AND who has the legal cause of action ............................ Wadda you think Sue

 

I would also add JC;)

 

 

If anyone would like to debate either the pender case or equitable v legal assignment, here are two threads especially created for that purpose

 

 

1. Paragon V Pender - Title to Sue
   
2. Mortgage Securitisation - Equitable or Legal Assignment
   

[JonCris]

Hello JonCris;)

 

 

If in the event of default by the Lender (SPML or PML) the legal title is assigned to the Issuer or Trustee, then what has previously been sold to the SPV ?

 

Doesn't it further confirm that as a result of securitisation initally it is the equitable title that is sold ?

 

elexica: In Brief: Conditional priority provisions upheld (the document posted by ITBG?)

 

"As is common, the collateral was charged in favour of the trustee and under the provisions of the waterfall, on the termination of the swap by virtue of counterparty default (ie the Lehman bankruptcy)"

 

 

Not until the fat lady sings & don't forget the USA litigation which may result in a judgement not compatable with English Law

[Suetonius]

Not until the fat lady sings & don't forget the USA litigation which may result in a judgement not compatable with English Law

 

She might not be singing for some time (appeals etc)

 

Are you suggesting that a judgement in the USA, could have an impact on s.136 of the LOP 1925 ?

Edited September 28, 2009 by Suetonius
added more

[JonCris]

She might not be singing for some time (appeals etc) True but it may be enough to allow LiP's to stay their repos until it's resolved

Are you suggesting that a judgement in the USA, could have an impact on s.136 of the LOP 1925 ?

most certainly yes

[Suetonius]

most certainly yes

 

That is a very interesting conclusion you have drawn there JC

[JonCris]

That is a very interesting conclusion you have drawn there JC

 

I'm just following the money. Lehmans was American

[I'm the bad guy?]

Suetonius,

 

I disagree with your interpretation of the BNY case above:

 

1) Your assumption that BNY were NOT already in possession of the legal title to the assets/mortgages as per the existing charges.

 

2) The legal action was not against the SPVs who are NOT in bankruptcy, but directly to BNY(TRUSTEE) of Bank of NY MELLON.

 

3) More to the point the Lender/Bank is not being sued, as per the Lehman bankruptcy.

 

Is SPML insolvent, and PWCoopers NOT informing CH?

 

comments?

 

ITBG?

Edited October 1, 2009 by I'm the bad guy?

[Suetonius]

Suetonius,

 

I disagree with your interpretation of the BNY case above:

 

1) Your assumption that BNY were NOT already in possession of the legal title to the assets/mortgages as per the existing charges.

 

2) The legal action was not against the SPVs who are NOT in bankruptcy, but directly to BNY(TRUSTEE) A LEHMANS SUBSIDIARY.

 

3) More to the point the Lender/Bank is not being sued, as per the Lehman bankruptcy.

 

Is SPML insolvent, and PWCoopers NOT informing CH?

 

comments?

 

ITBG?

 

The answer to your points, is why was the case originally instigated ?

 

If we refer to pender, we may find the answer:

 

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

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

Company Law and Corporate Finance (OUP, 1999)

 

Employment History:

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

University Lecturer, (1991 – 2000)

University Assistant Lecturer, (1988–1991)

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

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

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

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

 

Qualifications

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

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

 

"but with provision being made for completion in certain specified circumstances, e.g. if the transferor persistently defaults on its obligations under the securitisation arrangements."

 

Hello JonCris;)

 

 

If in the event of default by the Lender (SPML or PML) the legal title is assigned to the Issuer or Trustee, then what has previously been sold to the SPV ?

 

Doesn't it further confirm that as a result of securitisation initally it is the equitable title that is sold ?

 

elexica: In Brief: Conditional priority provisions upheld (the document posted by ITBG?)

 

"As is common, the collateral was charged in favour of the trustee and under the provisions of the waterfall, on the termination of the swap by virtue of counterparty default (ie the Lehman bankruptcy)"

[ryde]

Surely if spml ,pml cannot service the spvs hence peoples mortgage payments are being paid directly into these accounts TO PROP UP THE REPAYMENTS they are both trading whilst insolvent which I THOUGHT WAS A CRIMINAL OFFENCE. the irish stock market reports various eurosail entities suspended and I saw something where one eurosail fund? had failed.SEEMS LIKE IT IS JUST A QUESTION OF TIME.

[I'm the bad guy?]

Suetonius,

 

"As is common, the collateral was charged in favour of the trustee and under the provisions of the waterfall, on the termination of the swap by virtue of counterparty default (ie the Lehman bankruptcy)"

 

Let's look at the above, 'collateral was charged in favour of the trustee'' - BNY already the chargee.

 

'on the termination of the swap by virtue of the counterparty default' - This as cited by the Judge as 'the trigger' to allow enforcement by the Creditors/investors.

 

So, is it not possible the default, only allows an enforcement action ie.'Trigger', by the creditors, and this is an easy remedy for creditors as already the assets/mortgages are within the Trust Deed. Meaning a separation of 'ownership' and 'enforcement'?

 

Can we agree, as of right now at least in this case, that the legal title holder is

BNY-trustee, subject to impending action?

 

 

ITBG?

Edited September 28, 2009 by I'm the bad guy?

[ryde]

if the legal title holders in our situation are spml and pml even though some other intermediary may be holding it on trust ,who is going to want to buy their mortgage books now with what appears to be the current obligation to and the legal action being taken by the investors.?No wonder they could not be sold.

[Suetonius]

Suetonius,

 

"As is common, the collateral was charged in favour of the trustee and under the provisions of the waterfall, on the termination of the swap by virtue of counterparty default (ie the Lehman bankruptcy)"

 

Let's look at the above, 'collateral was charged in favour of the trustee'' - BNY already the chargee.

 

'on the termination of the swap by virtue of the counterparty default' - This as cited by the Judge as 'the trigger' to allow enforcement by the Creditors/investors.

 

So, is it not possible the default, only allows an enforcement action ie.'Trigger', by the creditors, and this is an easy remedy for creditors as already the assets/mortgages are within the Trust Deed. Meaning a separation of 'ownership' and 'enforcement'?

 

Can we agree, as of right now at least in this case, that the legal title holder is

BNY-trustee, subject to impending action?

 

 

ITBG?

 

I think I must be misunderstanding the case....

 

Perpetual Trustee Co Ltd v BNY Corporate Trustee Services Ltd & Anor [2009] EWHC 1912 (Ch) (28 July 2009)

 

The way I am reading it is that BNY is the trustee for the noteholders (Perpetual Trustee Co ltd & Belmont Park Investments)

 

Lehmans Brothers Special Financing, argue that the legal title's should form part of its' bankruptcy estate. However, the noteholders argue that as Lehmans filed for bankruptcy they are in default and lose the legal title as per the principle and supplemental trust deeds.

 

Proceedings have been brought against both Lehman and BNY as Lehman is attempting to retain the legal titles and BNY has not fullfilled its duties/obligations in regard to these transactions.

 

(taken from paragraph 24)

 

(2) From 15th September 2008, interest payments due under all series of Notes (except Beryl 2008-14) were not paid on their respective due dates and remain unpaid. Such non-payment constituted an event of default in respect of each of those notes issues, see Condition 10 set out in the Principal Trust Deed Schedule 2 Part C referred to in paragraph 13 above. Prima facie such non-payments also rendered the security for those issues enforceable in accordance with clause 5.5 of the Principal Trust Deed set out in paragraph 10 above.

 

I am of the view that the enforcement of the security refers to the transfer of the legal title following default by the lender. However, without sight of the applicable prospectus it is not possible to reach any safe conclusion.

 

If we were to use the Eurosail prospectus as a guide, it would appear that this is the case (and supported by this post http://www.consumeractiongroup.co.uk/forum/mortgages-secured-loans/170607-spml-london-mortgage-company-73.html#post2462571 ):

 

http://www.ise.ie/debt_documents/eurosail%205NP%20P_9529.pdf

 

(Page 22)

 

"Legal title to the Loans and their related Collateral Security will be transferred to the Issuer only in the limited circumstances described under “Title to the Mortgage Pool” below. Prior to the Issuer obtaining legal title to the Loans and their related Collateral Security in accordance with the terms of the Mortgage Sale Agreement,"

 

(Page 91)

 

"Under the Mortgage Sale Agreement and the Deed of Charge, each of the Issuer (with the consent of the Trustee) and the Trustee will be entitled to effect such registrations and recordings and give such notices as it,

acting in its absolute discretion, considers necessary to protect and perfect the interests respectively of the Issuer (as purchaser) and the Trustee (as chargee) in the Loans and the Collateral Security, inter alia, where (a) it is obliged to do so by law, by court order or by a mandatory requirement of any regulatory authority, (b) an Enforcement Notice (as defined in Condition 9(a) (Events of Default)) has been given, © the Trustee considers that the Charged Property (as defined in the Deed of Charge) or any part thereof is in jeopardy (including due to the possible insolvency of any of SPML or PML in each case as Legal Titleholder of the relevant Loans) or (d) any action is taken for the winding-up, dissolution, administration or reorganisation of SPML or PML. These rights are supported by irrevocable powers of attorney given by, among others, the Issuer, SPML and PML."

[zither]

After reading everyones comments, and not really understanding most of it, my question is this: Have the likes of Preferred mortgages and others linked really hit rock bottom and if so how might that affect the Preferred mortgage customer?. Or has that been explained already and its gone right over my head?. Hope you dont mind me sticking my nose in!.

[wot2do?]

After reading everyones comments, and not really understanding most of it, my question is this: Have the likes of Preferred mortgages and others linked really hit rock bottom and if so how might that affect the Preferred mortgage customer?. Or has that been explained already and its gone right over my head?. Hope you dont mind me sticking my nose in!.

 

I am thinking the same thing

 

I am :confused::confused:

[Dangermouse]

SPML is owned by Mable Commercial Funding Ltd which is part of Lehman. Mable is in receivership.

 

Dangermouse

[Suetonius]

Some people might find this interesting...

[Dangermouse]

That looks interesting.

 

 

Dangermouse

[verycatchy7939]

WebCHeck - Select and Access Company Information

 

more and bear sterns involved 2