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

[Suetonius]

To enable me to respond to your general question on what grounds would you argue the contract is unenforceable or for recission..

[andrew1]

These posts are excellent as they reflect upon the business models of many a company supplying similar financial products. Could I just bring in one further addition to the debate on Securitisation and Title transfer..that being the Repo105 activity.

 

I read in the States there is debate going on over the inticacies of these accounting practices of 'selling' the loans and mortgages near the end of the company's year end so that any toxic loans do not cast a shaddow over the financial performance and Balance Sheets reported to Companies House. As happened I believe in Lehmans. The loans are sold at a price to the SPV which is invariably a sister company set up for the purpose. Once the year end passes the loans and mortgages are then repurchased by the Original company at a different price and the debate revolves around whether the company could have afforded to rebuy these at the true market value and therefore if they could not the 'equitable' transfer is brought into question perhaps to make it a legal transfer. Repo 105 - £1.05 rule.

 

I do not profess to be knowledgeable on this particular accounting practice, but it may come up in some of your researching without you quite realising what it is...keep an eye!

[Suetonius]

Good Morning Andrew1,

 

This post provides a little more info on that particular topic

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?170607-Spml-london-Mortgage-Company&p=3113593&viewfull=1#post3113593

 

Hope that helps

[andrew1]

Thanks and apologies, I should have read back a few pages! But it is an interesting concept.

[peterjm]

As you say Peter, the vast majority of this thread relates to spml. As the situation is now completely different with regard to your lender SPPL, I would suggest starting your own thread and detailing your problems and cause for complaint. That will enable fellow posters to respond to your specific problems and assist you....

 

Once you have created your thread, you should post a link here, so everyone can find it.

 

I would really prefer to stop here as I think the following I found seems to sum up probably why this thread was started in the first place,unfortunately site rules prohibit me it seems from posting any link or actual reference to the "other place(s)" by name but this is non copyrighted material .I think this is all our common problem here and has led to the wealth of posts,after all the lenders role ceases in real terms when third party administration commences.

 

"Would it be possible to get a consensus of opinion here?

 

1)The nasty parasitic fly in the ointment here is Capstone Mortgage Services and the way they administrate your mortgage.

2)There would be no issue with securitisation,original lenders,spvs,trustees,investors etc if the whole lot was run fairly, sympathetically when problems arise, openly and honestly?

3)This whole outburst of indignation has been caused solely by Capstone.

4) We signed up for a loan and all we want is fair play ,we are not attempting to escape liability we are all in reality trying to escape Capstone and their dishonest and underhand tricks to wrestle our homes dishonestly away from us, hence this site.

Would this be the general consensus??

ALL THE INVESTORS ARE BOTHERED ABOUT IS GETTING REGULAR PAYMENTS ON THEIR INVESTMENTS.

ALL CAPSTONE ARE BOTHERED ABOUT IS MAKING THE FATTEST PROFIT THEY CAN FOR THEMSELVES, NO HOLDS BARRED AND NO MATTER WHO SUFFERS IN THE PROCESS – BORROWER OR INVESTOR.

ALL WE WANT IS PEACE, FAIR PLAY AND OUR UNFAIRLY TAKEN MONEY BACK."

(edited partially to comply with site rules here)

[peterjm]

To enable me to respond to your general question on what grounds would you argue the contract is unenforceable or for recission..quote suetonius

 

This is indeed a tricky question requiring careful thought as securitisation and its effects bite when the loan defaults,a careful examination of the original contract and any facilities it provides for default(which is doubtful ?) would be required.

 

Otherwise it will come back to the FOS complaint with the originator/lender through capstone being contracturally unable to comply with the FSA rules relating to regulated loans in the event of default and arrears due to securitisation agreements and the Courts failing utterly to apply sanctions which is well within their powers against the lender through the Administrator for failing to observe the preaction protocols because contracturally they cannot because of the securitisation agreements.

 

The question being does the above make a contract unfair originally when default is not envisaged,the fact that default is in many cases manufactured by capstone is an entirely seperate matter.

Edited September 5, 2010 by peterjm

[Suetonius]

 

As you say Peter, the vast majority of this thread relates to spml. As the situation is now completely different with regard to your lender SPPL, I would suggest starting your own thread and detailing your problems and cause for complaint. That will enable fellow posters to respond to your specific problems and assist you....

 

Once you have created your thread, you should post a link here, so everyone can find it..

 

I would really prefer to stop here

 

That is a shame but I understand. It was just a suggestion, I just thought that if you created your own thread it would be easier for people to attempt to provide you the answers and assistance that you asked for, in relation to your loan with SPPL and the problems that you are having.

 

I am worried about my loan and need some answers......

 

......... I have a secured loan with SPPL I have watched this thread with interest over several months as a guest never feeling the need to register.I have been driven to my wits end by the activities of yes you've guessed it,Capstone.They have started it seems their usual tactics of lost payments and consequent arrears charges,yet I have had up to this time a perfect record,logical dialogue with them is an impossibility. I feel compelled to register here as I have seen several notifications that the legal charge to my loan is about to be transferred.These notifications have then suddenly disappeared without reason or explanation from anyone which is baffling. I have learnt that my loan is about to be transferred to someone I have never heard of,what difference will this make to me?Can anyone explain if SPPL are no longer to be the owners how do I go on about making a complaint against them.?

 

Nevermind…………..

 

I hope the evidence I have posted in response to both the template letter and the article you posted have been helpful.

[Suetonius]

Personally I am still stuck on the claims that an offence has been committed under the Land Registration Act 2002

 

It has been said that the SPV commits an offence (s.123 of the LRA) if it does not register the transfer of the charge (s.27 of the LRA ) with the Land Registry. (putting to side for a moment the fact that as the legal title remained with the original lender a transfer had not actually taken place anyway)

 

What the legislation actually says is:

 

s.27 only confirms that the disposition of a charge is required to be completed by registration

 

s.123 says that an offence has only been committed if in the course of proceedings relating to registration under this Act he suppresses information with the intention of concealing a person’s right or claim, or substantiating a false claim.

 

I just can't find where it says that an offence has been committed with regard to the mortgage securitisation structure used in the UK. I must be missing something

[peterjm]

s.27 only confirms that the disposition of a charge is required to be completed by registration

 

s.123 says that an offence has only been committed if in the course of proceedings relating to registration under this Act he suppresses information with the intention of concealing a person’s right or claim, or substantiating a false claim.

 

I just can't find where it says that an offence has been committed with regard to the mortgage securitisation structure used in the UK. I must be missing something .

 

OK.

This is how the normal person on the street would read this.

1)My business is acquiring loans for the sole and only purpose to sell on to specially and specifically created entities for them to sell on.Hence my title originator.

2)As for security for my loan I register a charge against the property of the person lending the money so if they don't pay I can enforce my security.

3)I sell my loans on but the entity I sell them to takes the deliberate decision not to register at the land registry because of the numerous financial and possibly regulatory benefits it offers them.

They state to me their usual conditions of sale of which I am aware before even originating my loans.:

Neither the Issuer nor the Trustee currently intend to effect any registration at the Land Registry of England and Wales, the Registers of Northern Ireland or any registration or recording in the Registers of Scotland to perfect the sale of the Loans and the Collateral Security to the Issuer or the charge of them by the Issuer in favour of the Trustee nor, save as mentioned below, do they intend to obtain possession of the title deeds to the Properties and the Loans and their related Collateral Security.

This will simply be achieved by not telling the borrower I have sold the loans on and is a condition of my sale.The sale would be perfected but for this one event.

4)So I have registered my loans knowing that they will be immediately sold on .Am I therefore committing an offence by not telling the land registry that I acquired these loans for immediate sale and that I cannot tell the borrower as this was a condition of the sale.?the real owner doesn't want to register their ownership at the land registry due to the benefits they can receive for not doing this :ie:" Essentially, to avoid the difficulties involved in full-scale legal transfer. These difficulties may either include having to notify the debtor (as under U.K. or Hong Kong law) or the stamp duties associated with a conveyance that the receivables (as in U.K. and India) may attract.

5)Further the borrower will be subject to the new entities control in setting interest rates etc they will not be able to have their type of loan changed,alter payment dates,have arrears capitalised etc etc because the loan is not under my control.They will also have no knowledge I have sold their loan on.

 

6) In the selling on of my loans which are regulated I know that the regulations they are subject to cannot be implemented as the contractural agreements between the new owner and its administrator prevent these regulations from being implemented.

MCOB 13.3 Dealing fairly with customers in arrears: policy and procedures

 

 

MCOB 13.3.1 25/06/2010 (1) A firm must deal fairly with any customer who:

(a) is in arrears on a regulated mortgage contract1 or home purchase plan;1

(b) has a 1 sale shortfall; or1

© is otherwise in breach of a home purchase plan.

(2) A firm must put in place, and operate in accordance with, a written policy (agreed by its respective governing body) and procedures for complying with (1). Such policy and procedures must reflect the requirements of MCOB 13.3.2A R and MCOB 13.3.4A R.2

 

 

 

MCOB 13.3.2A 25/06/2010 2A firm must, when dealing with any customer in payment difficulties: (1) make reasonable efforts to reach an agreement with a customer over the method of repaying any payment shortfall or sale shortfall, in the case of the former having regard to the desirability of agreeing with the customer an alternative to taking possession of the property;

(2) liaise, if the customer makes arrangements for this, with a third party source of advice regarding the payment shortfall or sale shortfall;

(3) allow a reasonable time over which the payment shortfall or sale shortfall should be repaid, having particular regard to the need to establish, where feasible, a payment plan which is practical in terms of the circumstances of the customer;

(4) grant, unless it has good reason not to do so, a customer's request for a change to:

(a) the date on which the payment is due (providing it is within the same payment period); or

(b) the method by which payment is made;

 

and give the customer a written explanation of its reasons if it refuses the request;

(5) where no reasonable payment arrangement can be made, allow the customer to remain in possession for a reasonable period to effect a sale; and

(6) not repossess the property unless all other reasonable attempts to resolve the position have failed

 

MCOB 13.3.3A 25/06/2010 2In complying with MCOB 13.3.2A R, a firm must give a customer a reasonable period of time to consider any proposals for dealing with the payment difficulties.MCOB 13.3.4A 25/06/2010 2In complying with MCOB 13.3.2AR(6): (1) a firm must consider whether, given the individual circumstances of the customer, it is appropriate to do one or more of the following in relation to the regulated mortgage contract or home purchase plan with the agreement of the customer:

(a) extend its term; or

(b) change its type; or

© defer payment of interest due on the regulated mortgage contract or of sums due under the home purchase plan (including, in either case, on any sale shortfall); or

(d) treat the payment shortfall as if it was part of the original amount provided (but a firm must not automatically capitalise a payment shortfall); or

(e) make use of any Government forbearance initiatives in which the firm chooses to participate;

(2) a firm must give customers adequate information to understand the implications of any proposed arrangement; one approach may be to provide information on the new terms in line with the annual statement provisions.

 

MCOB 13.3.4B 25/06/2010If a customer's account has previously fallen into arrears within the past 12 months (and at that time the customer received the disclosure required by MCOB 13.4.1 R), the arrears have been cleared and the customer's account falls into arrears on a subsequent occasion a firm must either: (1) issue a further disclosure in compliance with MCOB 13.4.1 R; or

(2) provide a statement, in a durable medium, of the payments due, the actual payment shortfall, any charges incurred and the total outstanding debt excluding any charges that may be added on redemption, together with information as to the consequences, including repossession, if the payment shortfall is not cleared.

Thought I'd include this one for good measure.£85 a month for management of arrears ??

 

MCOB 12.4 Arrears charges: regulated mortgage contracts1

 

 

MCOB 12.4.1 (1) A firm must ensure that any regulated mortgage contract that it enters into does not impose, and cannot be used to impose, a charge for arrears on a customer except where that charge is a reasonable estimate of the cost of the additional administration required as a result of the customer being in arrears. 2

(2) Paragraph (1) does not prevent a firm from entering into a regulated mortgage contract with a customer under which the firm may change the rate of interest charged to the customer from a fixed or discounted rate of interest to the firm's standard variable rate if the customer goes into arrears, providing that this standard variable rate is not a rate created especially for customers in arrears.

Edited September 5, 2010 by peterjm

[Suetonius]

Good Evening Peterjm

 

s.27 only confirms that the disposition of a charge is required to be completed by registration

 

s.123 says that an offence has only been committed if in the course of proceedings relating to registration under this Act he suppresses information with the intention of concealing a person’s right or claim, or substantiating a false claim.

 

I just can't find where it says that an offence has been committed with regard to the mortgage securitisation structure used in the UK. I must be missing something .

 

OK.

This is how the normal person on the street would read this.

1)My business is acquiring loans to sell on to specially and specifically created entities for them to sell on.

2)As for security for my loan I

 

Further to 1 & 2 above, I still can't see what legal right or claim has been concealed.

 

Any legal claim or right the borrower has would be against the legal title holder of the charge.

Any legal claim or right against the borrower would be that of the legal title holder of the charge

 

I am really struggling to see what specific legal right or what specific legal claim has been concealed..

[Suetonius]

s.27 only confirms that the disposition of a charge is required to be completed by registration

 

s.123 says that an offence has only been committed if in the course of proceedings relating to registration under this Act he suppresses information with the intention of concealing a person’s right or claim, or substantiating a false claim.

 

I just can't find where it says that an offence has been committed with regard to the mortgage securitisation structure used in the UK. I must be missing something .

 

OK.

This is how the normal person on the street would read this.

1)My business is acquiring loans for the sole and only purpose to sell on to specially and specifically created entities for them to sell on.Hence my title originator.

2)As for security for my loan I register a charge against the property of the person lending the money so if they don't pay I can enforce my security.

3)I sell my loans on but the entity I sell them to takes the deliberate decision not to register at the land registry because of the numerous financial and possibly regulatory benefits it offers them.

They state to me:

Neither the Issuer nor the Trustee currently intend to effect any registration at the Land Registry of England and Wales, the Registers of Northern Ireland or any registration or recording in the Registers of Scotland to perfect the sale of the Loans and the Collateral Security to the Issuer or the charge of them by the Issuer in favour of the Trustee nor, save as mentioned below, do they intend to obtain possession of the title deeds to the Properties and the Loans and their related Collateral Security.

This will simply be achieved by not telling the borrower I have sold the loans on and is a condition of my sale.The sale would be perfected but for this one event.

4)So I have registered my loans knowing that they will be immediately sold on .Am I therefore committing an offence by not telling the land registry that I acquired these loans for immediate sale and that I cannot tell the borrower as this was a condition of the sale.?the real owner doesn't want to register their ownership at the land registry due to the benefits they can receive for not doing this as mentioned above?

5)Further the borrower will be subject to the new entities control in setting interest rates etc they will not be able to have their type of loan changed,alter payment dates,have arrears capitalised etc etc because the loan is not under my control.They will also have no knowledge I have sold their loan on.

 

Still can't see the right or claim that is concealed...

 

The legislation is very specific with regard to what is an offence

[Suetonius]

Is it a borrowers right or claim that you are saying has been concealed or a right or claim of the legal title holder that has been concealed

[peterjm]

I am concealing the fact that the real owner is the entity for whom I originated my loans and a condition of my sale was that I was not to tell the borrower.

We also have the proof that the loans originated by sppl and all the other originators were not transferred which implies sold on on the date they have stated to various borrowers,the loans were sold on origination but not perfected because a condition of the sale was that sppl as like all the other originators would not tell the borrower.

 

I cannot see how this is not an abuse of s136 written in 1925 pre securitisation.

What was the draftsmens intention at that time in drafting this law,what was its primary purpose and intention,certainly not the use it is applied in securitisation which at that time was never heard of.

Edited September 5, 2010 by peterjm

[Suetonius]

I am concealing the fact that the real owner is the entity for whom I originated my loans and a condition of my sale was that I was not to tell the borrower.

We also have the proof that the loans originated by sppl were not transferred which implies sold on on the date they have stated to various borrowers,the loans were sold on origination but not perfected because a condition of the sale was that sppl as like all the other originators would not tell the borrower.

 

 

You say that a fact has been concealed but the legislation that is said an offence is committed under states right or claim....

 

With regards to the date of sale, I think this was covered in my post regarding ownership

[patrickq1]

January 2000 - Council of Mortgage Lenders

UK 'Will Continue to Lead Mortgage Securitisation in Europe' Mortgage securitisation - the process by which mortgage assets are 'sold' in bulk to investors rather than remaining on the original lender's balance sheet - is likely to continue to be more common in the UK than in other European mortgage markets, according to a new report commissioned by the Council of Mortgage Lenders. Around 6% of the total UK mortgage book is currently securitised. This is the largest single group of such assets in Europe, although it is dwarfed by the US securitisation market (where 60% of loans are securitised), which has developed in different ways and for different reasons.

In the recent past, the most active issuance of mortgage-backed securities in the UK has related to 'non-prime' loans (such as those above traditional lending multiples, or those where the borrower has some form of impaired credit history). However, there is now greater potential for more 'mainstream' loans to be securitised, according to Kevin Gardiner and Robert Paterson of Morgan Stanley Dean Witter, the authors of the report.

The potential benefits of securitisation for lenders include the removal of assets from the lender's balance sheet, which means the need to hold capital is reduced. Securitisation also enables lenders to reduce their exposure to certain types of lending, and it can provide an alternative source of mortgage funding to the capital markets or retail deposits. In most securitisations of bank or building society assets, the original lender continues to 'service' the assets - that is, administer the mortgages - on behalf of the investor, for which income is earned. For investors, securitisation offers the opportunity to tailor credit risk to sectors they may not otherwise be able to invest in, which helps them to diversify their portfolio. Typically, securitised products also often offer higher returns than other investments with a similar credit rating - partly because of credit 'enhancements' which are built in to reassure investors.

For borrowers, securitisation has little direct impact on the individual mortgage. This is as true in the US as the UK: even now two fifths of US mortgages continue to be funded on a traditional basis without a discernible price differential. However, securitisation has a positive impact on competition in the mortgage market, because is allows lenders without retail deposit bases or high unsecured debt ratings to price their mortgages more competitively than they would otherwise be able to. This in turn benefits consumers in general.

In short, conditions in the UK are conducive to an ongoing increase in the issue of mortgage-backed securities, although at present there is no pressing need to fund mortgages in this way. While most UK securitisation so far have offered investors floating rates of return, there is no reason why these could not move onto a fixed basis - particularly if there is a sustained move towards fixed rate mortgages. The impact of securitisation on the market can be expected to be positive in terms of enhancing competition and risk management, and the UK is likely to remain at the forefront of mortgage securitisation within Europe.

 

http://www.voxeu.org/index.php?q=node/3675

[peterjm]

The right of the spv is being concealed so they can avoid the difficulties involved in full-scale legal transfer. These difficulties may either include having to notify the debtor (as under U.K. or Hong Kong law) or the stamp duties associated with a conveyance that the receivables (as in U.K. and India) may attract.,in other words deliberate avoidance of tax etc by intent and through condition of sale ,perhaps we should put this directly to the Land Registry.

The originator is prevented by terms of sale from telling the borrower they have sold their loan thus concealing the right of the true owner the spv to be registered.

.............................................................................................................................................................

I cannot see how this is not an abuse of s136 written in 1925 pre securitisation.

What was the draftsmens intention at that time in drafting this law,what was its primary purpose and intention,certainly not the use it is applied in securitisation which at that time was never heard of.

 

what is the answer to this ?what was the purpose of the 1925 legislation and the s136 notification made at that time.

Edited September 5, 2010 by peterjm

[Suetonius]

Hello Peterjm,

 

Sorry I did not answer your question regarding s.136... It was added to your post after I had already responded..

 

s.136 is to do with legal ownership as broken-down in my post with regard to ownership...

 

It is the legal owner who has all of the legal rights to the charge, including the right to be registered as such.

 

Until the formailities are completed to transfer legal ownership, the SPV does not have legal rights directly against the borrower or the legal right to be registered as the legal title owner.

 

Therefore, it would not be correct to say that right has been concealed, when legally it does not exist at that time...

 

Well, I bidding night night to watch Ali...

[peterjm]

Now that is what I do call a coup de grace(excuse my french!)

Still thinking though!

 

 

 

 

Edited September 6, 2010 by peterjm
never say die and a sense of something to come!

[Suetonius]

Now that is what I do call a coup de grace(excuse my french!)

Still thinking though!

 

No doubt following my recent posts, in the days to come a certain level of hostility and anger will head in my direction.

 

And why is this, it is because I have been foolish enough to try and correct a misunderstanding.. Not because I work for a lender but because I consider the misunderstanding should be corrected..

[Suetonius]

Why is it considered better to post a half truth or even a falsehood than it is to post the truth...

[peterjm]

No doubt following my recent posts, in the days to come a certain level of hostility and anger will head in my direction.

 

And why is this, it is because I have been foolish enough to try and correct a misunderstanding.. Not because I work for a lender but because I consider the misunderstanding should be corrected.

quote suetonius

 

Who from?

 

Hopefully bb the agitator is now despatched to coventry where it belongs on its own now deserted thread.

One question remains was it of this world or a virus sent from cyberspace.?

It was like a turd that wouldn't flush very like a third party administrator I know..

Edited September 6, 2010 by peterjm

[Crapstone]

The grevience stops with Capstone and the those that they are acting for..they carry the buck... who you signed the contract with.

 

I suggest you try the paths you mention and then come back to us.

[Crapstone]

Any hostility will come from you talking about things we already know of and you not reading what has already been written PJ.

[peterjm]

No hostility here neither is any expected,think theres been a little misunderstanding due to me failing to mention it was suetonius who seemed to expect it.(quote now added)

 

As for reading 6675 posts a tall order for even the most dedicated and several months work and then who's right who's wrong these are all opinions and value judgements ,knowledge is only gained from hard experience and qualified teachers ,so lessons will be absorbed questions asked.

 

The question still remains if so much is known why has no viable answer ever been promoted other than the FOS and reclaiming charges?Thats pretty basic,they start up again later it seems from stories read anyway once your card is marked so its neverending.

 

I read in the "other place" something about Christina Norgan,what answers did she have when she challenged a decision that meant the arrears she had could not be paid over the term of the loan?This would have been discretion of a county court judge an almost impossiblity to launch an appeal against,yet she was brave or desperate enough to try and look at the result for the consumer against the whole of the mortgage industry.

If you have the knowledge give me the ammunition and I'll be your Christina Norgan,it would be interesting to see what response she would have had had she proposed making an appeal against usual court practice and discretion had she posted in a forum..She who dares........................

We are up against the bottom feeders of the industry here, the lowest dregs,there has to be an answer,how can they carry on like this?

Suetonius seems to profess extensive knowledge in these matters,whats his suggested course of action?

 

Suetonius?

Edited September 6, 2010 by peterjm

[eagleforms]

I want t go to the FOS to claim over £2000 of arrears ect. charges back but my loan is with SPPL (although I pay SPML), and is unregulated. Can I still claim?