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

[supersleuth]

Final point:

 

You asked the question "and if a firm states that it will increase its costs in order to send me a breakdown of existing costs is that also unreasonable?" The answer is YES - it is unreasonable and it is unlawful.

Keep that letter as extra evidence against them if you have to ask the court to decide on costs. Your request for a detailed bill is standard and reasonable and in fact, you should not have had to ask for a detailed bill in the first place. The solicitors are obliged to tell you what they are charging you for!

[iconoclash]

Hi - well you know - thats what I originally thought about the case re defending on such grounds BUT - the DJ has said that it was not clear that my argument 'amounts to a defence in law' and gave time already lapsed to review this point. Having representation under legal aid at present, their advice is indeed to drop the defence in order to avoid potential high costs, to backtrack to a point where we agree terms, now received agreement in writing save for the costs issue BUT I am frustrated that my claims re their behaviour, timing, charges, Insurances, etc therefore is not challenged. I also have an outstanding SAR with the lenders solicitor who have today said they need GMACs consent to send me the files. Been waiting since Nov 08 for this file! Meantime, lender has sent papers for new hearing which is very soon! I'm thinking I should change my legal aid representatives......? whilst being given the run-around by lenders solicitors! arrrrgh:confused:

[supersleuth]

Hi Campari2

 

Sorry for the delay in replying, have had techo issues.

 

The lender's solicitor is indeed giving you the runaround. They need GMAC's consent!!! absolute poppycock!!!! It is YOUR information. They don't need GMAC's consent to give you YOUR information. They are holding YOUR data and they MUST give it to you. As usual, the practical reality is that the lawyers and the bankers do not abide by the law and get away with violating the law. Plus as I understand it, GMAC are no longer operating in the UK (check this). Those americans made their cash out of the UK and have now scarpered. Your lawyer should be properly kicking their ass on that nonsense.

 

The lawyers that you have probably have no idea how to argue a securitised mortgage and therefore don't understand the transaction or how to defend it. Expressly ask them if they have any knowledge about securitisation and it they don't (which is probable) then see if you can find a solicitor who does know about securitisation.

 

Private message me with the gist of your defence. It is probable that the DJ doesn't know about securitisation either and therefore to make the defence, you may need to educate the judge too.

[iconoclash]

SS: have PMd you. You are quite right - it is like trying to get blood out of a stone to talk about securitisation etc - it just keeps coming back to the point that:

they are taking us to court to repo for breach of terms, eg not paying enough on time, our defence of that is not acceptable in terms of what they have done to us or our contact/product - simply: will we pay and when - that is all the courts want to know - and possibly try to prove lost equity in the property in order to also show that repo is actually doing us a favour so that the balance stops escalating. They will not answer anything about why they are escalating the balance with their charges and stupid sol. costs, which we now have to pay as "it's all in the small print". (Try £5k+ interest) arrrrrrgh!!

[mercyblue]

Have been watching this thread with interest (having a capstone mortgage -if we can call it that). So with regards to securitisation spml sell my mortgage (along with a load of others), This is a genuine sale with title passing to the issuer SPV (this is a direct quote from here Securitisation: basic structures: true sale/asset-backed securitisation

).

Now the original contract is still with spml they have sold the "payment rights" along with the assets. So I still might have a contract with them to pay x amount.

However and I am assuming this is what supersleuth was saying if I stop paying said contract they have no right to repossess my house because they have sold their legal interest in it to the spv.

So the spv should appear at the land registry not spml. It is amazing when it clicks you realize what is going on.

[supersleuth]

Hi Campari and MercyBlue,

 

Mercyblue...thanks a billion for the Inland Revenue link...I'm going to use that in my litigation to support and prove the true sale. It's like I said, you have to educate the judges too who have know idea about securitisations and how the borrowers are being unlawfully abused.

 

To be clear about the true sale however...it is this...the ENTIRE contract is assigned to the new lender. This means that the new lender steps into the shoes of the old/originator lender. You then have NO privity of contract with the old lender and you are entirely under contract with the new lender (i.e. the SPV). Therefore, the SPV should be registered at the Land Registry as the proprietor of the mortgage on the Land Charges Register.

 

As for the "breach of contract" that the borrowers are alleged to have perpetrated, i.e. not paying on time....that is not a MATERIAL breach of contract. It can be remedied by paying back the alleged arrears and therefore, the lenders should not get possession. However, the lenders themselves ARE IN MATERIAL breach of contract when they in effect CREATE the arreas by overcharging the account. Thus, what happens in reality is that the lenders CAUSE the arrears and then moan to the court that they are suffering because the borrower has not paid the arrears.

 

The point is, that the SPV does not want to perform their contractual obligation which is - to lend the money for 25 YEARS - no! - the SPV wants the cash now! Hence repossession to grab the cash now.

 

Consequently, we must all look at our contracts are pay ONLY those amounts that we are contractually and legally obliged to pay. Many of the charges are unlawful and unenforceable under the Unfair Contract TErms legislation, and under the FSA regulations. But try finding a solicitor who will actually know any consumer/borrowers rights!!!!...and then try finding one who will vigorously assert those rights!!!

 

The short point is: that the only persone/entity who has contractual rights that can be asserted against you in the court IS the SPV. The SPV is the only entity at law who is entitled to a possession order (if they prove their case). The SPV is the only entity that has legal standing (locus standi) to bring a cause in action against you because it is the SPV that legally owns your mortgage. No other entity or company has any right to any order/judgment against you.

 

Therefore, when the so called "lender" brings the claim, that lender is NOT in contract with you because they sold the mortgage and therefore they in fact, have NO contractual claim against you.

 

Therefore, if you entered into a contract with ABC and it is XYZ company bringing a claim against you, the easiest way to get the judge to understand your locus standi argument (as the judges don't know about securitisation) is to show the judge the contract stating ABC as the contractual party and saying that therefore XYZ have no claim against you or your property.

 

Then that will force XYZ to say - "OH but we were assigned the contract" in which case, they have to PROVE that their alleged assignment and show the court that they have a contractual entitlement against you...i.e. they must show the court that you and XYZ are in "privity" of contract...that's when the paperwork really starts coming out.

 

But then, there's more...as XYZ company (who are named as the Claimant in the action) will not be the SPV. Therefore, you then have to find out who the SPV are that own your mortgage. I've written quite alot of posts on how to go about finding the actual owner of the mortgage so check out some of my other posts.

 

Thus, a good starting point for the defence is to argue that the contract was with ABC and not XYZ and therefore XYZ have no claim against you. That keeps it simple to start with and it is a basic legal principle that the judge CAN understand.

 

Supersleuth

[midge61]

Hi all

 

This is ta term from my mortgage with SPML:

Transfer Of The Company's rights

7. (a) the company may in its absolute discretion,at any time and without notice to the Borrower, transfer its rights under the Loan/Mortgage to any person whatsoever. Similarly, any person to whom the Company transfers its rights may decide to tranfer its right under the Loan/Mortgage to any person/persons whatsoever.

 

(b) the Borrower hereby consents to the transfer of the Company's rights under the lLoan/Mortgage conditions and agrees, to the extent that the Company transfers its rights to any person,that it will be bound to such a transferee in like manner and extent as it is bound to the Company. The borrower further consents to the extent that the Company agrees with any person to transfer its obligations to that person, that the Company will be released from further obligations to the Borrower under the Loan/Mortgage.

[midge61]

hi

 

found the following so I think it is the spv that holds your mortgage

 

Fitch Ratings - London - 15 December 2008: Fitch Ratings has today downgraded eight and affirmed five tranches from Eurosail 06 - 3 NC Plc, an RMBS transaction containing loans originated by Southern Pacific Mortgage Limited and Southern Pacific Personal Loan Limited. The ratings are listed below

[supersleuth]

Hi Vadja,

 

Eurosail is a securitsation transaction. So it is 99% certain that Eurosail is the SPV that owns your mortgage. The "06 3NC" is the reference to the actual series of the notes that were issued to the investors in the city.

 

Thus, the "06" means that your mortgage was securitised in 2006 (99% certain). The "3" probably refers to the fact that it was securitised in the 3rd quarter. i.e. between June to September 2006. Did you take your mortgage out around May 2006 to August 2006?? Can't think what the NC means, but at least you know exactly which securitsation deal you have to deal with. If you want to know exactly how your mortgage is being dealt with, you can go to the FSA and get the EUROSAIL prospectus for that deal.

 

Supersleuth

[iconoclash]

Hi - many thanks again SuperS. I see Midges question - I wonder if that will answer my queries with sppl and spml - have a SAR oustanding so will see what mister postie brings.

My imminent case with GMAC/Oakwood: Ive seen some articles about Oakwood offering 15% discount to customers to pay off their mortgages andmove to other lenders. Hmm - perhaps they'd like to give me a 15% discount Their solicitors have sent me a creative statement with lots of fees and they've backdated them - what! - we havent even agreed them yet. I think I'm also right in saying that you cannot add on all sorts of fees, total them up, deduct the payments and then, add interest as a bulk thing at the very end, and, not disclose the interest rate used!! GMAC seem to be being bailed out by their parent company and seem to be up and running in UK as far as I can tell.

The copy title deeds used by Oakwood sols in their papers look like a cut and paste job - they say transfer to Oakwood by GMAC but no SPV.?

[mercyblue]

Doing a search on the uk list here UKLA - Main Issuer List doesn't find anything for eurosail???

[mercyblue]

have found what should be the correct company for myself not sure how that helps no way can get to canary wharf. But surely the fact that the insurance shows eurosail and not spml prove the fact of the sale?

[iconoclash]

Ah I remember eurosail when I renewed the house insurance I had forgotten to add them on as an interested party thought it strange at the time. Cant remember the exact numbers after it but gives me the starting place.

Hi - how did you know that eurosail had to be added to the policy? did you get a letter from the lender or werre they always involved?

[mercyblue]

I got a letter off the lender (which I don't have) saying to add eurosail blah blah it only says eurosail uk on the policy. I do however have the original letter when took out the mortgage that the policy must note SPML capital (firsts) as mortgagee.

[supersleuth]

Hi guys,

 

You've got it. Because the entire benefits of the mortgage are assigned to the new owner/lender/spv, the SPV the securitisation document require that the the SPV (as the real owner of the mortgage) is noted on the insurance documents as having an interest in the insurance policy.

 

Thus, when you took out the mortgage and the policy had to note SPML as mortgagee, that is because at that time SPML did OWN the mortgage. When you got your letters saying EUROSAIL should be noted on the policy, that is the time that Eurosail became your mortgagee.

 

It is proof that your mortgage has been sold to Eurosail, but the judges will not know how to move forward on that proof. The judges don't understand securitisation so your proof has to be blindingly obvious, which means, you need the prospectus.

 

You have come a long way by identifying the transaction. Keep searching on the internet. I've just managed to find my Prospectus on the internet so keep searching. You now know the exact deal you are looking for which is the hardest bit.

 

Supersleuth

[mercyblue]

Well I have finally found my prospectus it took some time but it can be done!

They are listed on the Irish stock exchange so looking at the uk listing is pointless.

If anyone is interested in finding theirs if you pm I should be able to give you some pointers on how to find yours.

[mercyblue]

With regard to ownership and spml. According to the prospectus spml remain the legal titleholder but grant power of attorney to the issuer (eurosail) and hence capstone as the service agent.

Supersleuth I could send you the actual text to see what you think if you want?

[midge61]

Hi

 

I have not actually found my prospectus yet but what I have found is that SPML seem to be a non entity now. Their address and contact details have all been changed to that of Capstone and according to companies house their accounts were due in Oct 2008 and have not been filed.

All letters and threatograms come from Capstone and it seems impossible to actually contact someone from SPML.

There must be some sort of challange that could be made about this.

[supersleuth]

Hi MercyBlue,

 

That's the rub. SPML remain the legal title holder so that they don't have to alert you (or inform you) that they assinged the mortgage. Also, they remain the legal title holder so that they can dupe the court to believe that SPML are the legal owners...BUT....they are NOT.

 

Four main legal issues here.

 

First, if SPML want to claim ON BEHALF of the SPV then they must state in their claim for that they are claiming in a representative capacity on behalf of SPV. Which means, that they would have to evidence the 'power of attorney. Thus, because SPML are claiming IN THEIR OWN RIGHT - they are claiming a right to possession of your home - a right which they do not have because they have no contractual relations with you any longer.

 

Second. The act of remaining the legal titleholder is illegal. It is illegal (and a criminal offence) to conceal and suppress information from the land registry. When you sell a 'registrable' interest in land, you must inform the land registry. See Land Registration Act 2002 s.123, 58(2), and Schedule 16 (from memory, I think it's sch. 16). The disposition of a mortgage is a registrable disposition. Therefore, the provision in the securitisation contracts where they agree between themselve to ignore and violate this law is illegal and in fact a criminal offence. Thus the SPV should be, but is not, registered at the LR.

 

Third. The SPV is not FSA authorised and yet, the SPV sets the interest rates, sets the policy and sets the repossessions policy. All of these are "regulated activities" under the FSMA 2000 and therefore to engage in these activities you must be FSA authorised. Again, it is a criminal offence to engage in regualated activities without FSA authorisation.

 

Thus, the SPV uses an FSA authorised 'servicer' e.g. Capstone. BUT, Capstone will follow the SPV policy rather than observe and comply with the FSA rules. Hence, you will find on this site alone, borrowers complaints that the lender did not accept reasonable offers for settlment and/or would not capitalise arrears as is required by the FSA rules and pre-action protocols. The reason why Capstone and other don't comply with the FSA rules is because their SPV client has given them instructions/policies NOT to agree to any reasonable offers or capitalise arrears. Thus, the SPV has circumvented the UK's Regulator!!!...

 

Fourth. The lender's are all usually in material breach of contract. You will find that SPML and the other securitisation companies are NOT in the mortgage business (contrary to what we think). THEY ARE IN THE REPOSSESSION BUSINESS!!!!

 

Thus, the SPV and the servicer are always in breach of contract. This is because a material provision of your mortgage contract is that the lender will lend you the money for 25 years. BUT, when the SPV gets the contract, they have NO intention of letting you have that loan for 25 years. This is a material breach of contract. They force people to redeem the mortgages by either (a) overcharging so much that people re-mortgage or (b) force you into (alleged) arrears through overcharging so that they can repossess.

 

A second breach of contract that I discovered in my securitisation is that the lender is not paying any attention to my T&C whatsoever. Infact, the Prospectus specifically states, that it has effectively substituted my standard variable rate T&C's with a Tracker Rate Mortgage T&C. Thus, the product that I bought is irrelevant - they have unilaterally decided to give me a tracker rate mortgage without my knowing about it. Well now I do know about it which means that my mortgage contract is TOTALLY VOID and unenforceable (for various legal reasons)

 

When you read the interest rate policy, and check it against your contractual obligations - you will find that you are being overcharged.

 

To demonstrate my point: in my case, the securitisation was a £600m deal in June 2006. It is now only 2.5 years since then and out of a £600 million pool of mortgages there is only £100 million of those mortgage contracts still in the pool. Thus, in only 2.5 years, they have caused £500 million of those borrowers to either redeem through re-mortgaging or be repossessed. As you know, re-mortgaging is not really an option in today's climate so anybody still with a securitised mortgage is more likely to be repossessed that not.

 

The rot and criminality of this high level [problem] perpetrated on the unsuspecting borrowers is more abhorrent than most of us can grasp. We are mostly still in the old school belief that bankers are 'honourable', lawful and 'honest'.

 

Keep reading...

Supersleuth

[supersleuth]

Hi Midge61,

 

That's a good point. If SPML (as a lehman's entity) is now defunct and/or is in bankruptcy/receivership, then there is more reason why the SPV should be the Claimant. This is because ...remember...that the SPV is bankruptcy remote. That is the whole point of the "true sale". Therefore, note only does SPML have no claim against you, the SPML receiver has NO claim against you either because the bankruptcy receiver has no claim to the assets of the SPV.

 

This is the point at which we could flush out the SPV's. Capstone have NO claim against any of the borrowers and that must be put in the defence as a major line of defence. Also if you can show that SPML is defunct and/or in bankruptcy/receivership, then you can also argue that they do not have "legal capacity" to maintain an action. A bankrupt has NO "legal capacity" at law - much like a child (under 18) has no legal capacity. Only the bankrupt's trustee can bring claims on behalf of a bankrupt.

 

Supersleuth

[mercyblue]

You wont ever be able to speak to anyone at spml in any caes they have sold you on. Capstone are appointed by the issuer (owner) to basically represent them for everything which is standard for these spv's

See also the two title.rtf attachments for ownership, the 2nd is somewhat involved.

[mercyblue]

sorry here arr the attachments

title1.rtf

title2.rtf

[supersleuth]

MercyBlue,

 

The first attached document is precisely my point about the illegality of the contractual provisions concerning legal tile.

 

These entities do not have the right to break the law in their contracts. They have contracted to conceal and suppress the transfer of legal title. To contract to conceal and suppress the transfer of legal title is a criminal offence!!!!

 

Note that they admit on the last line of the test that: "and notice would have to be given to the Borrowers."

In fact, under the terms of your contract and under the conditions set forth under the statutes giving the statutory power to assign mortgage contracts, BOTH have the legal requirement that NOTICE is given to the borrowers. We have a fundamental breach of contract here. Notice must be given to the borrower makes sense because the borrower is entitled to know with whom, they are in "contractual privity".

 

 

In the second attachment see also the words: Neither the Issuer nor the Trustee "currently intend to effect any registration at the Land Registry of England"

 

 

It is not their right to CHOOSE whether or not they will or will not register their interest. The law REQUIRES that they register their interest. Nobody has the right to pick and choose whether they will comply with what the law mandates to be done. You would go to jail if you did not register your interest. Why should it be different for this bunch of crooks?

[mercyblue]

To demonstrate my point: in my case, the securitisation was a £600m deal in June 2006. It is now only 2.5 years since then and out of a £600 million pool of mortgages there is only £100 million of those mortgage contracts still in the pool. Thus, in only 2.5 years, they have caused £500 million of those borrowers to either redeem through re-mortgaging or be repossessed. As you know, re-mortgaging is not really an option in today's climate so anybody still with a securitised mortgage is more likely to be repossessed that not.

 

 

Certainly agree with that, reading mine and bearing in mind I am still taking it all in, that they expect to be just about fully redeemed after 3 years which would figure as they expect people to re-mortgage around the time fixed/discount rate ends. In reality I expect many of the borrowers were intending to do just that but as you point out that is hardly viable now.

[supersleuth]

MercyBlue,

 

Well mercyME they actually expressly state in their prospectus that they expect to be fully redeemed in 3 years!!!!!

 

That's fantastic. It is absolute proof that they KNOW their material obligations under the contracts to the borrowers was 25 years and then they expressly admit that they have NO INTENTION of keeping their contractual obligation to lend the money for 25 years.

 

At law, this could constitute an expressed REPUDIATION of the mortgage contract. If one party to a contract repudiates the contract (expresses that they will not perform their obligations) then the other party is absoved of performing their obligations too!! Which means, in principle that the borrower is not obliged to perform their obligations (i.e. pay them!!).

 

Borrowers should remember that the lender has contractual obligations to them. The material obligation of the lender is to loan the money for 25 Years. Failure to perform that obligation is a MATERIAL breach of contract and in fact it is a REPUDIATORY BREACH OF CONTRACT. A contract is after all a two-way street.

 

OK, I accept that the practical reality for most borrowers is that presenting this technical legal argument will be a tough one, but NONETHELESS it is a solid legal argument that is a solid defence.