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

[midge61]

hi

 

it does say in there that you are not bound by this offer until you have signed the legal charge. So maybe it becomes a contract once the charge is signed?

 

i have to say all I have is a copy of the offer and the key facts document for my mortgage.

[enoughisenough]

Interpretation in 3 easy steps

 

There are three rules

 

Rule number 1: The literal rule:strict interpretation of the actual words used in an act of parliament should be applied unless an absurdity or clear injustice arises.

 

Rule number 2: The Golden Rule: narrow or wider interpretation may be used where the absurdity/clear injustice arises by application of the 1st rule. Hence alternative meanings of the words may be explored/exploited by clever legal persons and get them on a feeding frenzy.

 

3. The Mischief Rule: Benefits most caggers: Simply put, what mischief or wrong doing was parliament trying to remedy in enacting any relevant legislation.

 

These are the rules of language which judges from the HOL right down to CC level use. Any act of parliament contains a preamble. The preamble is the key, as it states parliament's intentions in passing the Act. Any Acts we are dealing with here will have a preamble - i.e. giving reasoning behind their overall intention. Caggers must look beyond the words of an act and start getting at the intention. This is but a brief guide to statutory interpretation.

 

Start getting briefed up guys and gals.

 

Cheers EIE. (as always) Keep the faith!

[supersleuth]

Hi Littledotty,

 

The offer states that it is an offer, and there is an acceptance page which you signed. These are two essential conditions that must be fulfilled (amongst others) to complete a lawfully valid contract. The fact that the first bullet point states that it will be binding on the date of the legal charge a point is an issue, and can get very technical and must be taken into account when making a full legal analysis - but too much to go into here.

 

But to keep it simple, it seems that LMC have not signed the mortgage offer documents. Did you get any other cover letters or documents with the offer document in which LMC signed with the words "for an on behalf of LMC" or something to that effect?

 

The point here is, that s.2 of the Law of Property (Miscellaneous Provisions) Act 1989 is a strict provision that must be complied with when entering into a contract FOR A DISPOSITION OF AN INTEREST IN LAND. When you enter into a mortgage loan agreement, that is a contract for a disposition of an interest in land as you will be signing a deed to grant the lender an interest in your land.

 

Thus, the mortgage loan agreement must comply with s.2, in particular the agreement must be signed by BOTH PARTIES, i.e. both the lender and the borrower and if there is no compliance with s.2 then the law deems such contract VOID.

 

Now don't jump to any conclusions yet, this is very technical and its hard to come to any firm conclusions via this medium. The documents would have to be properly analysed. But at first blush, LMC have not signed the offer document in accordance with s.2, but then one must factor in and consider that the contract was not operating until the date of the signing of the deed.

 

Nonetheless, there is no compliance with s.2 (signed by both parties) on the documents that have been posted. But then again, it seems that SPML may not have Littledotty's deed anyway as there's inaccuracies on her Land Registration title. Again, Littledotty, I think you need to demand that they evidence the original deed that you signed. It is your right to have the original put in evidence....and you may need to go and see a really good contract lawyer....pick a good one, not any old high street clown that will be intimidated by the lenders.

 

It is the signature on your deed that made the contract come into operation and if they can't show your original deed that is another big issue - together with a possible s.2 argument that the contract does not comply with s.2 and therefore MAYBE VOID - on which a good lawyer may be able to successfully fight your defence.

 

If there is no contract - then there is no claim against you because there is no contract for the court to enforce. Finally, caution!!! Do not jump to any firm conclusions through this post that there is or is not a contract. Really need to see a lawyer to do the full legal analysis, but on the face of what is here - it is worth asking a lawyer the question - in fact, another way of getting a good legal opinion on this issue is to choose a good barrister who has a good track record in contract law and then just use the solicitor to instruct the barrister to give a legal opinion on the question. Google legal hub and barrister directories to find the appropriate barrister you may want to use and/or try to find the barrister pro bono unit - i.e. where they do work for free - pro bono publico (for the public good).

 

Anyway, even if you can't get a lawyer (as is the same for most of us), there's no harm in raising the s.2 point with the judge at your next hearing together with the tactic admission of the lender that the document was only and offer and therefore, not a contract.

 

What exactly was the point that you had raised that they said they didn't understand?

 

And, with respect to their assertion that the IFA was YOUR agent...there is a provision in the CCA which states something to the effect that where the lender pays the IFA a commission, the IFA will be deemed to be the agent of the LENDER. This agency point is also important...but haven't got time to go into it...you want the IFA to be their agent so its worth finding that CCA provision. Does anyone know it off the top of their head? I'm thinking maybe CCA s.58????

 

Good luck

Edited March 28, 2009 by supersleuth

[Smarterchick]

I know not about the contracts, but the commissions are classed as secret commission (Payne vs Waterfront) and there is a thread on CAG about this http://www.consumeractiongroup.co.uk/forum/payment-protection-insurance-ppi/170647-secret-commisions.html there is a link to the case. Its a long read, but effectively it is stating that there are broker commissions we all know about which is a broker fee, then there is a fee which we don't know about which the broker gets from the lender making the broker biased and therefore it comes under ' fraud' ( sounds a strong word, but that's what it comes out as. Good luck LD and great work Supersleuth.

[supersleuth]

Excellent. Thanks Smarterchick. Littledotty's documents do show a commission of £2,400 but in addition there may have been a secret commission??!! (wouldn't suprise me at all). More and more rot...so on the commissions front there's another issue. Must check the CCA with regard to that Agency/Agent issue.

[mercyblue]

check the CCA? I didn't think mortgages fell under this legislation

[supersleuth]

Yes certain provisions do apply to mortgages...it's just that most mortgages are not classified as "regulated consumer agreements".

 

But a lot of the provisions do apply to mortgage lenders such as stating the APR, the Key Facts documents etc., which is why the broker does give this information.

 

Most CCA cases revolve around regulated consumer agreements i.e. loans for under 25K, which is why it is commonly thought that the CCA only applies to small loans, but in fact the legislation applies to all personal credit of ANY amount see CCA s.8.

[Smarterchick]

Yes certain provisions do apply to mortgages...it's just that most mortgages are not classified as "regulated consumer agreements".

 

But a lot of the provisions do apply to mortgage lenders such as stating the APR, the Key Facts documents etc., which is why the broker does give this information.

 

Most CCA cases revolve around regulated consumer agreements i.e. loans for under 25K, which is why it is commonly thought that the CCA only applies to small loans, but in fact the legislation applies to all personal credit of ANY amount see CCA s.8.

 

 

...and if you want some fun - s.18 - Multiple Agreements http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within.html pages 1-4 particularly revealing on that thread. There is also a case gone to High Court recently Heath vs Sothern Pacific which was lost initially but going to appeal I am told. this is your SPML crowd of course

 

 

Supersleuth, I also forgot to mention that to get information on the broker fees (secret ones) you need to apply for the 'Underwriting sheet' from the lender - that'll get you the info otherwise they won't tell you. I just wrote to the broker and asked, but most of these brokers, since the crunch have disappeared.

[littledotty27]

The mortgage offer was brought round by our IFA,we signed it he sent it to LMC,the charge was signed and witnessed at the solicitors.

 

As far as I am aware,LMC never signed the offer,as the offer I have posted is what they sent to me after I sent my S.A.R..

 

But like you say Supersleuth,a contract is not a contract without the other parties signature.

I think I ve still got a long way to go,but hopefully it will be worth it in the long run.

[Smarterchick]

What is to stop them just signing it now? I think we had this argument over the credit card agreements..check it out LD beforehand. If you hadn't signed it that may have been a different matter, but they? mmm? check it.

[JonCris]

EE in the matter of Wilson v County rule no1 did apply even though it DID result in an absurdity in that because of a faulty document the creditor still lost all rights & privileges to recover the monies resulting in Wilson receiving a windfall.

 

County joined by the Secretary of State, without success, tried to use the HR argument which is stretching the HR a bit cos firms don't have Human Rights only individuals

 

My point is that even though absurdities will exists the courts & in particular the HoL WILL strictly interperate the law according to statute

[supersleuth]

Hi Smarterchick - love your posts on the CCA issue and the secret commissions - excellent advice! Do you have a copy of the High Court case of Heath v SPML - would like to read it even though it may be going off to the CofA....oh, and a copy of the Payne v Waterfront case if possible??

 

As for signing the contract now -ha ha - NO WAY - that won't wash!!! Can't get out of it that way.

 

There either is a contract on the date that SPML started the action against LD or there is NOT. They can't just say hey ho, oh we forgot, never mind we'll sign it now. NO. s.2 is a mandatory provision on which there must exist a s.2 compliant contract - if there is not a s.2 compliant contract - anything that purports to be a contract is VOID. If there was no valid and enforceable contract when SPML brought action against LD, then their claim must fail. No contract - No claim.

 

Don't know how this signing after the event happened with the credit cards, but as far as property law is concerned it is absolutely not possible to sign now....plus, LD did sign the acceptance part of the documentation (its on one of the jpegs that LD posted), therefore there is only ONE signature. Not enough to comply with s.2 - BOTH the lender and the borrower must sign.

 

Go for it LD - you have everything to gain and nothing to loose by trying.

 

Hi JonCris, your're right, that's the only thing we can count on - the House of Lords do strictly apply the law - and yes, the HoL would strictly apply the statutes too even when it falls in favour of the consumer.

 

As for it being an absurdity in the Wilson case, I take a different view. Parliament wanted to protect consumers, thus if the powerful lenders didn't comply with the CCA, that was the sanction that they would face. They knew it. Their lawyers knew it. They had due notice that they would face that sanction for failure to comply and thus should face the penalty. If there's no deterrent from violating the statute, then the statute would have been a complete waste of time. Parliament wanted to protect consumers and gave consumers that remedy. She was entitled to the remedy. Rock on Mrs Wilson - would love to meet her.

Edited March 28, 2009 by supersleuth

[enoughisenough]

the literal rule would not be followed in absurdum -that's partly why the other rules exist and partly why the barristers feast. This in essence is what they get paid for - arguing the toss over the rules and why the other rules exists in first place.

 

Having said this I'm all for counter opinion. The more fiercely contested a position the more likely it is to become more than merely pursuasive.

 

Excellent contributions by the way peeps.

 

Cheers EIE

[Smarterchick]

Hi Smarterchick - love your posts on the CCA issue and the secret commissions - excellent advice! Do you have a copy of the High Court case of Heath v SPML - would like to read it even though it may be going off to the CofA....oh, and a copy of the Payne v Waterfront case if possible??

 

As for signing the contract now -ha ha - NO WAY - that won't wash!!! Can't get out of it that way.

 

There either is a contract on the date that SPML started the action against LD or there is NOT. They can't just say hey ho, oh we forgot, never mind we'll sign it now. NO. s.2 is a mandatory provision on which there must exist a s.2 compliant contract - if there is not a s.2 compliant contract - anything that purports to be a contract is VOID. If there was no valid and enforceable contract when SPML brought action against LD, then their claim must fail. No contract - No claim.

 

Don't know how this signing after the event happened with the credit cards, but as far as property law is concerned it is absolutely not possible to sign now....plus, LD did sign the acceptance part of the documentation (its on one of the jpegs that LD posted), therefore there is only ONE signature. Not enough to comply with s.2 - BOTH the lender and the borrower must sign.

 

Go for it LD - you have everything to gain and nothing to loose by trying.

 

Hi JonCris, your're right, that's the only thing we can count on - the House of Lords do strictly apply the law - and yes, the HoL would strictly apply the statutes too even when it falls in favour of the consumer.

 

As for it being an absurdity in the Wilson case, I take a different view. Parliament wanted to protect consumers, thus if the powerful lenders didn't comply with the CCA, that was the sanction that they would face. They knew it. Their lawyers knew it. They had due notice that they would face that sanction for failure to comply and thus should face the penalty. If there's no deterrent from violating the statute, then the statute would have been a complete waste of time. Parliament wanted to protect consumers and gave consumers that remedy. She was entitled to the remedy. Rock on Mrs Wilson - would love to meet her.

 

Heath vs Southern Pacific: This overrules Bennion who drafted the CCA, but to many this judgement is loopy.

 

Heath v Southern Pacific Mortgage Ltd [2009] EWHC 103 (Ch) (29 January 2009)

 

Payne vs Watchtower Investments:

 

Watchtower Investments Ltd v Payne & Anor [2001] EWCA Civ 1159 (20 July 2001)

 

SC

[supersleuth]

Thanks Smarterchick - had a very quick peruse of case and the postscript to the judgment is most interesting - the fact that he did not consider s.11 on the grounds that in THEORY Ms Heath could have broken her contract!!! What absolute poppycock - he then excuses himself from this by saying that the s.11 point was not argued - see what I mean re the Wilson case - how they will bend over backward as pure contortionists that would put Houdini to shame!...what effots to find for the lender. Will read the case in full soon so may have more comments. Thanks for bring this case to our attention - look forward to what the C of A will say on the subject (of course they could refuse to allow an appeal to the C of A so that they won't have to consider the point).

[Crapstone]

Same thing here. Never seen a copy of anything that has an SPML signiture on and haven't managed to get a copy of the original contract either since it was sent to the solictors acting for both parties.

 

I remember having to get a witness to co-sign the document, and it didn't have to a professional, but there was no provision for SPML to sign as it was just the names of the joint lenders and a line for the witness.

[supersleuth]

Hi Crapstone,

 

your solicitor was acting for BOTH parties which means that they were still acting for you. Your solicitor would have (or should have) sent you a copy of the contract prior to your signing the deed.

 

As the solicitor was acting for you too and as you did pay the solicitor - you can write to your solicitor to get a copy of the contract. Solicitors must keep their files for at least 6 years (by law) and so it will still be on their files (assuming your mortgage is less than 6 years old). In fact, you can write to the solicitor and just ask for them to send you YOUR FILE which you have paid for - its YOURS - and its YOUR RIGHT to have it.

 

BTW: Anyone over the age of 18 can witness the signatures on a deed.

Edited March 30, 2009 by supersleuth

[iconoclash]

Crapstone

 

Hi - yes know that one - had a welfare rights solicitor in our case with OHL and she didnt know anything about securitisation - we did have judgement made for payments plus £50, but that is all so that is all we pay!! Re SPML, we used to have a loan with SPPL that was converted into a mortgage with SPML and Ive just dug out their old letters, I see that they transferred it to "Morgage Agency Services Number Two Limited, which is a wholly owned subsidiary of Britannia B.S. As MAS2 is a separate company, you will not automatically become a member of Britannia B.S. as a result of this transfer......all administration will be handled from its offices at PO Box 138, Plymouth, PL1 1XY. The data we hold about you both on computer and in writing will be transferred to MAS2, although SPML retain details of our business relationship with you for a further six years in accordance with legal requirements. Following the transfer you should contact MAS2 for details about how they may use the data in the future. ....." This took place in late 2004 and Ive been chasing SPML for compliance of my SAR request but they keep finding excuses not to. Hope the above provides some info or help.

Edited March 30, 2009 by iconoclash
typos

[iconoclash]

So - the more you look at these companies the deeper it gets......MAS1,2,3, etc being Britannia B.S. - who also have a House of Lords person on board, who also are the guys who got into a mess with Mandelson's mortgage. It makes me sick, of course all those ministers must know all about securitisation trusts funds etc etc - they have all played ball with our money grrrrr.

[DanDesperate]

Sorry if I am in the wrong section. Quick question if I have a credit card to pay SPML can they refuse to take it because "it is a form of credit"

[Crapstone]

Hi Crapstone,

 

your solicitor was acting for BOTH parties which means that they were still acting for you. Your solicitor would have (or should have) sent you a copy of the contract prior to your signing the deed.

 

As the solicitor was acting for you too and as you did pay the solicitor - you can write to your solicitor to get a copy of the contract. Solicitors must keep their files for at least 6 years (by law) and so it will still be on their files (assuming your mortgage is less than 6 years old). In fact, you can write to the solicitor and just ask for them to send you YOUR FILE which you have paid for - its YOURS - and its YOUR RIGHT to have it.

 

BTW: Anyone over the age of 18 can witness the signatures on a deed.

 

My mortgage dates back to 2003 and is pre FSA and subject to the old rules, which in my opinion were clearer but are disregarded although they should still have a place.

 

The solicitor was appointed by them and no contact was made other than sending back a 'witnessed document'. All costs were added to the mortgage and I've already tried getting the file from them. As far as they are concerned it is closed, the mortgage company doesn't have the contract and the advisor won't answer any letter sent even though I have tracked them down to new offices.

 

I can only recall ever signing 3 documents. One was with the so called IFA to act on my behalf, the second was a mortgage offer (after receiving a few that I rejected it was the 4th one sent) and the last document having to be witnessed.

 

I'm digging through my files and looking at all the copies I have and so far something doesn't seem quite right.

[Crapstone]

Sorry if I am in the wrong section. Quick question if I have a credit card to pay SPML can they refuse to take it because "it is a form of credit"

 

In what context? They may be doing you a favour by not accepting a monthly payment or arrears by credit card. AKAIK they cannot refuse payment in any form as long as it doesn't infringe on their contactual interest in the property.

[supersleuth]

Hi Crapstone and DD,

 

If they are refusing to take legal tender then they are in breach of contract. BUT be careful - they will just say that you haven't paid and then you will say that they refused payment - BUT the courts always believe the lenders and the judge will find it hard to believe that the lender REFUSED payment. Thus, you must follow up your telephone call where they refused the payment in writing and say to the effect...

 

I refer to my telecon with Ms xxxx on xxx date, where I offered payment of xxxx and Ms xxxx refused to take the payment. I again offer to make payment...my card payment details are xxxxx and I authorised you to take immediate payment of xxxx from this bank card. I confirm that there are sufficient funds available on this bank card account to satisfy the payment that you require.

 

In the event that you continue to refuse lawful tender of this payment, I will consider that this months' payment has been SATISFIED and that you do not require any further tender of this months' payment as I have done all I can lawfully do to effect the payment.

That way, you will have evidence of your tendering payment. It is important to have evidence of your tendering payment and their refusal to accept lawful tender of payment because if the judge just believes that you didn't pay (which is likely), they will say your arrears are increased and thus make it easier for them to get a possession order.

 

Remember they want your ASSET - your home - they don't want you to keep your mortgage. Repossession is far more profitable for them than their performing the contract. And they want to liquidate your home so that they can pay the cash to their investors.

Edited March 31, 2009 by supersleuth

[Crapstone]

If anyone has a mortgage account managed by Capstone then please check that they have called for the correct payment for 1st April.

 

I received a letter a few weeks ago listing revised payments for April, May and June. The Direct Debit for today should have been £329.12 + £50 payment towards arrears making a total of £379.12.

 

I've just checked with my bank and Capstone have tried to take £470.67!

 

A call to Capstone was an utter waste of time as they claim their computers are down and I should call back after 11'oclock. The numpty on the end of the phone said there was nothing they could do even if the amount was a mistake.

 

So basically I have to put money in the bank before 12'oclock to cover their 'error' or risk having them mark a missed payment or face more charges for going overdrawn with my bank. Is this their idea of an April Fools joke as I can't see the funny side of it.

 

At least it's yet more evidence of just how inept they are.

Edited April 1, 2009 by Crapstone
incorrect figure added

[midge61]

hi

 

this is why I don't allow them to have a direct debit on my account. I pay monthly by making a direct transfer from my account which goes by faster payment and i get a reciept emailed to me.

 

It will be interesting to see what excuse they give when you phone back. Utter numpties!!!