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

[cher69cher69]

Hi Guys HELP!!!!!! I need a shoulder to cry on!! or someone to tell me that all is not lost!!!!Because I feel on a real downer after reading the letter I got this morning from the FSA !!!!

 

I am really stumped now!! The FSA won't help me!!!

 

I sent in a complaint to them about how we had been treated by capstone and that they lied in court and that they managed to get a suspended possession order even though we had an arrangement ongoing and it was up to date. Also that the arrears had now gone from £1,450 to £3,850 and that they want me to pay up because the arrears had gone up and I havent got a clue how, because i have done exactly what the court said and paid what i should and only missed one payment and caught up.

 

The reply from the FSA said this - it would appear that we cannot deal with your complaint because the matter has been the subject of court proceedings where the court reached a decision on the merits of the issue complained about.

We would be unable to instruct the firm to remove the suspended repossession order as this was decided by the courts and we are unable to overturn any ruling made by them.

 

But it isn't just the fact that I wanted the suspended repo order removing it was the fact that they are threatening to take me back to court any day claiming i didnt stick to my agreement made by the court which I did!

For arrears that I havent been responsible for, and dont know where the hell they came from.

I am going to write back to the FSA and make it very clear that it wasn't just that I was complaining about. I thought they knew what these idiots were like and would want to help me, or is it the case that once you have been taken to court and a suspended repo order has been made, then the lender can do what they like after that to evict you and you can't do jack sh--t about it and neither will the FSA, and also how we ended up in court in the first place by them not treating us fairly, that goes by the wayside too, is that what they are telling me. I am confused any words of advice would be good right now thank you!!!:confused:cher69

[AnimalMagic]

T

Burden of proof is reversed for CCA regulated agreement by s.140

 

Consumer Credit Act 2006 (c. 14)

 

(9) If, in any such proceedings, the debtor or a surety alleges that the relationship between the creditor and the debtor is unfair to the debtor, it is for the creditor to prove to the contrary.”

 

 

However, this is limited to CCA regulated agreements only.

 

It is my understanding that s140 also applies to mortgages prior to Oct 2004 and that the FSA regulated mortgages (post Oct 2004) are subject to the same criteria, but it is the FSA rather than the courts who make the 'judgement'.

[tifo]

It is my understanding that s140 also applies to mortgages prior to Oct 2004 and that the FSA regulated mortgages (post Oct 2004) are subject to the same criteria, but it is the FSA rather than the courts who make the 'judgement'.

 

How so? I thought s.140 only applies if the CCA applies to mortgages, as it does from October 2004. So how can s.140 apply to mortgages taken before October 2004 if they are not regulated?

[actionnotwords]

Brassed off

Hawthorne asset are asset managers like a pension fund,they have a stake in a preferred spv as investors,nothing to bother about,but keep digging!

Cher

You cannot complain to the FOS about a decision a court has made but you can go through the process and complain about unfair arrears charges added to your mortgage account.This is the way your complaint has to be made.

Then when or if they take you back to Court you can use as part of your defence the fact that the arrears on your account are not a true figure and until that is established by the ombudsman their claim is wrongly premised.

There are sites offering specific help with your problems especially help with these type of complaints.

Simply put capstone mortgage services in the main google search and look for help on the first google page for victims.

[Suetonius]

Sorry Animalmagic

 

my previous response was just with regard to the loans/mortgage with in the prospectus. I am posting on my phone at the moment but when I get home tonight I will post further and clarify what agreements s.140 does apply too

[Suetonius]

Seconds thoughts I have already posted about the applicability of s.140 in the specially created thread. So if clarification is required it can be found there ;-)

[Suetonius]

Afternoon everyone...

 

Confession time... I am wrong about s.140 and non regulated first charge mortgages.

 

AnimalMagic is quite correct..

 

Looks like Suetonius is only human after all..

 

I can freely admit when I am wrong..

[JonCris]

MY GAWD Sues wrong:eek: I can't contain myself I think I'm gonna cry Andrex anyone:(

[tifo]

Is this why s.140 applies to mortgages taken before Oct 2004?

 

(4) References in sections 140A and 140B to an agreement related to a credit agreement (the ‘main agreement’) are references to—

(a) a credit agreement consolidated by the main agreement;

(b) a linked transaction in relation to the main agreement or to a credit agreement within paragraph (a);

© a security provided in relation to the main agreement, to a credit agreement within paragraph (a) or to a linked transaction within paragraph (b).

 

 

(5) In the case of a credit agreement which is not a regulated consumer credit agreement, for the purposes of subsection (4) a transaction shall be treated as being a linked transaction in relation to that agreement if it would have been such a transaction had that agreement been a regulated consumer credit agreement.

[Suetonius]

Hello Tifo,

 

No it is because of this

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2890725.html

 

The sole exception is where an agreement is exempt under section 16(6C) of the 1974 Act because it is a regulated mortgage contract under the Financial Services and Markets Act 2000.

 

The above is taken from

 

http://www.newham.gov.uk/NR/rdonlyres/5FDEE9F6-7EEF-4B26-B53C-A419BC5C8D41/0/OFTUnfairRelationships.pdf

 

The only exemption is a regulated mortgage agreement, in otherwords mortgages provided after 31 October 2004

[Suetonius]

MY GAWD Sues wrong:eek:

 

And I have no qualms in admitting it ;)

 

It would be very stupid of me to continue to state something which I have now discovered (thanks to Animal Magic) I misunderstood.

 

Better to admit it openly, so others aren't misled, than try to cover up my mistake or continue in ignorant bliss me thinks

 

Wouldn't you agree JC ?

Edited May 20, 2010 by Suetonius

[Suetonius]

From the Council of Mortgage Lenders

 

http://uk.wrs.yahoo.com/_ylt=A03uv8MrdvVLxYwARF5LBQx.;_ylu=X3oDMTByNzk4cXAwBHNlYwNzcgRwb3MDOQRjb2xvA2lyZAR2dGlkAw--/SIG=12kbgngm8/EXP=1274464171/**http%3a//www.cml.org.uk/cml/filegrab/1AndrewHeywood.pdf%3fref=5203

 

Take a look at slide 7

[tifo]

thanks Sue, this part is good :

 

"Retrospective change to terms and conditions of securitised loans could trigger representations and warranties and create buy back obligation for the original lender."

[knight57]

I had a mortgage with mortgage1 i had 14000 arrears on it in 2008 i got this down to 10000 by paying them 500 month plus the cmi and then they sold it to webb resolutions im march of this year without telling me i paid webb the 3 monthly istallments and said i will keep to the same arrangement they agreed this a month later i recieved a warrant of eviction i went ot court on 18th of may and the judge suspended the warrant these companies are just out to get your property

[caro]

For those who have been repossessed this may be worth investigating further.

 

http://www.consumeractiongroup.co.uk/forum/mortgages-secured-loans/169002-mortgage-shortfall-important-new.html#post1821881

[JonCris]

And I have no qualms in admitting it ;)

 

It would be very stupid of me to continue to state something which I have now discovered (thanks to Animal Magic) I misunderstood.

 

Better to admit it openly, so others aren't misled, than try to cover up my mistake or continue in ignorant bliss me thinks

 

Wouldn't you agree JC ?

 

Of course but I still needed heavy medication when I read your post:eek:

[iconoclash]

Do you have a thread ?

 

Did you or a claim management company (CMC) make a claim with regard to PPI using s.75 of the CCA.

 

Section 56 states:

 

56 Antecedent negotiations

 

(1) In this Act “antecedent negotiations” means any negotiations with the debtor or hirer—

 

(a) conducted by the creditor or owner in relation to the making of any regulated agreement, or

 

(b) conducted by a credit-broker in relation to goods sold or proposed to be sold by the credit-broker to the creditor before forming the subject-matter of a debtor-creditor-supplier agreement within section 12(a), or

 

© conducted by the supplier in relation to a transaction financed or proposed to be financed by a debtor-creditor-supplier agreement within section 12(b) or ©,

 

 

Whereas s.75 states:

 

75 Liability of creditor for breaches by supplier

 

(1) If the debtor under a debtor-creditor-supplier agreement falling within section 12(b) or © has, in relation to a transaction financed by the agreement, any claim against the supplier in respect of a misrepresentation or breach of contract, he shall have a like claim against the creditor, who, with the supplier, shall accordingly be jointly and severally liable to the debtor.

 

(2) Subject to any agreement between them, the creditor shall be entitled to be indemnified by the supplier for loss suffered by the creditor in satisfying his liability under subsection (1), including costs reasonably incurred by him in defending proceedings instituted by the debtor.

 

(3) Subsection (1) does not apply to a claim—

 

(a) under a non-commercial agreement, or

 

(b) so far as the claim relates to any single item to which the supplier has attached a cash price not exceeding £100 or more than £30,000.

 

(4) This section applies notwithstanding that the debtor, in entering into the transaction, exceeded the credit limit or otherwise contravened any term of the agreement.

 

(5) In an action brought against the creditor under subsection (1) he shall be entitled, in accordance with rules of court, to have the supplier made a party to the proceedings.

 

 

 

s.75 is mostly used when you purchase something using credit (over £100.00) and there has been either a breach of contract or a misrepresentation by the supplier (i.e. faulty goods etc)

 

 

s.75 when there is a Debtor-Creditor-Supplier (D-C-S) relationship allows you to make a claim against the credit provider.

 

HI -no, sorry dont have a thread as Ive been sort of picking at the sides of this for so long and admit that I dont understand the answers you've given - probably too late for me. I am worried about this as I await a hearing date and it is my own claim for PPI within a secured loan agreement - every time I use regs they come back with a reason why it doesnt apply even when I thought it did initially:confused:

 

think this applies: Section 75 of the Consumer Credit Act 1974,

 

“If the debtor under a debtor-creditor-supplier agreement falling within section 12(b) or © has, in relation to a transaction financed by the agreement, any claim against the supplier in respect of a misrepresentation or breach of contract, he shall have a like claim against the creditor, who, with the supplier, shall accordingly be jointly and severally liable to the debtor”.

 

this is because they keep saying the PPI is nothing to do with them even though its part of the contract and was paid to them directly, added as a lump sum to the loan. thanks P.S. sorry - thats exactly what youve alredy stated isnt it - errrr.

Edited May 21, 2010 by iconoclash
mis-read

[tifo]

It is my understanding that s140 also applies to mortgages prior to Oct 2004

 

does this mean mortgage accounts before Oct 2004 are now regulated by the CCA 1974 (under CCA 2006)? and those after by the FSA?

 

i ask because i am wondering how s.140 of the CCA can apply to a mortgage account if the Act itself doesn't apply, i.e. first the Act then the sections.

 

sorry, still trying to understand this properly as all the info given previously was that mortgages before Oct 2004 were NOT regulated (either by FSA or CCA).

[AnimalMagic]

Afternoon everyone...

 

Confession time... I am wrong about s.140 and non regulated first charge mortgages.

 

AnimalMagic is quite correct..

 

Looks like Suetonius is only human after all..

 

I can freely admit when I am wrong..

 

 

Now all we need is a case to demonstrate how s140 can be used...

[actionnotwords]

There have now been over 6000 posts on this site.It is surprising that only now are the implications regarding regulated accounts being explored in detail.

I would suggest that this line of argument could be the most productive.

If an fsa rule is found to be uneforceable due to the constraints of securitization it may well be that the whole agreement may be unenforceable.

If these issues have been posted before please accept my apologies as this is an awful lot to read!

One example I have learnt of from another site is this question.

 

"Would the fact that a mortgage cannot be changed for example from repayment to interest only because of capstone's obligations to the spv (actually written into the spv prospectus) be regarded as an unfair term ?It is as a direct result of securitization,which if deemed to be unfair would rock the whole securitization boat and possibly sink it,because the fact that the mortgage had been securitized would make the process unfair,its also at odds with the protocols and FSA guidelines to which all these lenders purport to prescribe."

 

Also note the spv instructs the administrator by way of contractural obligation,absolute proof of the non regulated spv managing a regulated mortgage contract and a case for arguing the regulated mortgage agreement between borrower and originator SPML,LMC,PML,SPPL is unenforceable.

Also further reason for the disclosure of the mortgage administration agreement between capstone and the applicable spvs.

[Crapstone]

It's unfair from Day 1. Would you have signed up if you knew what would happen with securitisation? It was a con to lead people, that couldn't get on the High St ,into futher debt and try to take their homes. Mine reaches 2 years after retirement ..and wasn't what we asked for. They 'lose' the paperwork and deny everything until you shove it up their.....

 

Unfair terms would only apply to the contract between consumer and lender. It's what they do that matters.. Investors don't have to be regulated to look after their own interests. The buck stops with Crapstone....and the lender. Keep it simple and then progress to bigger things when more is uncovered.

Edited May 23, 2010 by Crapstone

[actionnotwords]

This thread hasn't died it appears debate has now moved temporarily here:http://www.consumeractiongroup.co.uk/forum/mortgages-secured-loans/257879-securitization-designed-fail-4.html

Its developed into another legal v equitable assignment debate!

[supersleuth]

This thread hasn't died it appears debate has now moved temporarily here:http://www.consumeractiongroup.co.uk/forum/mortgages-secured-loans/257879-securitization-designed-fail-4.html

Its developed into another legal v equitable assignment debate!

 

Hi ANW,

 

It does appear that there are many touts who still want to persist in the equitable v legal argument. There's little point. Those who argue equitable are those who want to protect the financial interests of their banking chums. The banks don't want the ordinary public to know and understand just how we are all being shafted and worse, having our homes illegally and criminally repossessed.

 

And so they send their touts into these forums to cast doubt and leave us with no alternative but to roll over and give everything we've got to the banks. They'll even take the drippings off the end of your nose. So there's little point in entertaining these posters who just want to divert people from the truth.

 

I've recently spotted on another blog site, that the greatest protagonist for the equitable sale on this forum, our much revered Suetonius, only entered the debate on this thread because somebody asked him! Yes, somebody asked him to create doubt on the validity of the arguments and so when he joined this thread, he joined with the specific objective to deflate and direct borrowers away from even attempting to assert the potential defences. When somebody posts merely because somebody asked them - you've got to wonder - who asked them to scupper the potential defences and why would they acceed to the request.

 

When both sides have fully vented the arguments, on the legal v equitable anyway, it is surprising that the equitable camp still want to argue. I don't. I trust that people are intelligent enough to follow the arguments on both sides and make up their own minds and I respect people enough to respect which argument they personally judge to be correct.

 

And it is a personal judgment call for each of us as the law on this subject is in flux and there is no definitive correct answer from any court judgment. That will be the case until the issue is properly put before a court and the court decide the answer. For me, the bankers' non-compliance with LRA 2002 s.27 and their public admissions that they criminally intend to conceal their sale from the Land Registry contrary to LRA s.123 is, in the words of one District Judge recently "a very grave one". But whether these criminals will ever be held to comply with the law is another matter. It seems so far, that they are above the law.

 

Supersleuth

[actionnotwords]

supersleuth

It is a sad state of affairs indeed when constructive posts cannot be posted at least in the attempt to further the cause of the consumer in the face of overwhelming opposition.Any viable defence that could be argued is better than none at all.

If people say "no I don't think this is viable perhaps we should explore this angle" that is far more helpful than simply casting doubt on everything and never offering another alternative.

Are defendants supposed to appear in court defenceless ? any solicitor or person with legal knowledge worth their salt would always offer an alternative.

Knowledge and skill developed from experience are not providing assistance to those that need it,it is such a waste of resources and this site is all about helping people who should all be grateful for your continued efforts.

[supersleuth]

supersleuth

It is a sad state of affairs indeed when constructive posts cannot be posted at least in the attempt to further the cause of the consumer in the face of overwhelming opposition.Any viable defence that could be argued is better than none at all.

If people say "no I don't think this is viable perhaps we should explore this angle" that is far more helpful than simply casting doubt on everything and never offering another alternative.

Are defendants supposed to appear in court defenceless ? any solicitor or person with legal knowledge worth their salt would always offer an alternative.

Knowledge and skill developed from experience are not providing assistance to those that need it,it is such a waste of resources and this site is all about helping people who should all be grateful for your continued efforts.

 

Hi ANW,

 

I agree. It is sad that people hinder rather than help. I am disappointed to learn that Suetonius only entered the debate because somebody asked him to, and sad that he succeeded in stopping people from asserting the potential defences. There is no hard and fast answer to this conundrum even though the LRA 2002 is straight forward and overwhelming. Plus, there is the inference that can be drawn from the fact that the banks will never reveal the transaction documents which suggests (on the balance of probabilities) that the argument LRA 2002 is correct.

 

What is more disappointing is that Suetonius never offered any alternative suggestion as to any possible defences. So how did it help anyone when he shuts down one of the few defences that could potentially prevail sometime somewhere? What harm would it do if some borrowers tried to use the defence even if they just put it in as an alternative to other defences such as CCA, UTCCR, s.2 LPA (MP) 1989 etc.,?

 

There will be a break through sometime, somewhere. Somebody will shame the judiciary into abiding by their judicial oath and re-instate the rule of law in this country. Until then, it will be more injustice. But in the words of EIE, just gotta keep the faith in the meantime.

 

Keep up the good work,

Superslueth