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

[ryde]

Talking on behalf of my ex i believe all posibilities with normal lenders were exhausted then the broker was recommended by the woolwich(its easier to say i did it, as to explain the whole situation would go into pages)basically she's stupid,trusts others and has little understanding the ideal candidate in other words!she was on the dole they got her to sign a blank application form,undervalued the property by40% then sold her a mortgage she had absolutely no chance of affording,in a nutshell.I had a restriction on the property and am now trying to stop them registering the charge.

[gustavius rex]

This is my last post for some time to come.

 

l have a repossession order, effective by the end of the month, to deal with. l, further, have 4 bailiff cases and the PML/SPML/LMC cases to sort out, why, l simply do not have the time to start all over again. Also, l cannot originate my complaints with the broker as l never had these particular problems. What l have to contend with, is the unfair contract terms pertaining to the securitisation and charges. Most vital to me is the securitisation v contract performance and that is what l will use. l have spoken to my lender regarding the repossession and informed them that l will request the court for a suspension, based on further litigation for unfair contract terms, in accordance with the statutory instrument 1999 No. 2083, and they are suddenly willing to re-consider. ln the end and after my appeal, it turns out, that, despite some nearly 60,000 hits, we are some 4 or 5 mortgagoors who are interested in a common action. Good for us, but, really pathetic when you consider the number of people who have been re-possessed and/or are in serious mortgage arrears. l had expected more and more positive contributions. l am sorry, but, l must now deal with my individual problems as a matter of urgency, but, shall, of course, let you all know the outcome.

 

All the best,

 

Gustavius

[ohitsonlyme]

Fully understand your position good luck with your hearings etc.

Your contribution is immense and has helped many

 

It is good to hear about the about face that is begining to happen Mars/Oakwood have suddenly started to refund fees for "Good little customers" that pay on time to new agreed repayment schedules

May be its time to hit them with unfair contracts too they certainly are losing their appetite for a second hearing in my case

onlyme

[eagleforms]

GR

With reference to your repossession, look at Norgan's Law, I think you will find it on google, it worked for me.

All the very best

M

[enoughisenough]

Originally posted by Gustavius Rex

 

l am sorry, but, l must now deal with my individual problems as a matter of urgency, but, shall, of course, let you all know the outcome.

GR

 

As experienced fighters of these actions I can tell you here and now you do not need to share this burden alone. We have all got a good track record in fighting these monsters off and we will lend every assistance we can.

 

I have a number of questions which I would like to ask in order that I can lend support to your fight, but first you MUST at all costs try to get the hearing stopped. Your aim is for them to suspend generally with liberty to restore by order of the court pending your keeping up with an arrangement which is acceptable. This figure is usually around 50-100 over your normal due payment but I believe they will accept anything North of £50 per month over. You must avoid having the hearing take place at all costs. At that hearing you will have a suspended possession order made as judges han them out like confetti believing them to be fair to both parties.

 

They are not fair to both parties. A suspended order IS a possession order, albeit suspended. IT means that the lender can issue an eviction notice without warning without even so much as a by your leave and the court will just take their word for it that you have breached the arrangement ordered by the court.

 

And they will stuff you for costs. So that it will take at least six months maybe more for the arrears to be down to where you are now. During that period they can simply say you owed us X, you now owe Y. You are in breach. Give us your keys. And the court will probably agree. You must try to get the hearing stopped by giving them an income and expenditure statement and coming to an agreement for the arrears. Suspended orders are notoriously easy to convert into full possession orders.

 

You also mention bailiffs. One letter ( I can give you a template with all the relevant law) usually gets shot of these muppets. Let me know by PM who they are chasing you for and we'll get these greedy ****** parasites off your back in a jiffy. Note in my signature how many DCAs I've sent packing. (i haven't even listed them all tee-hee). That will then leave you free to concentrate on the main show.

 

I will gladly help as I'm sure others will too. What sort of time frame are we working to here? Let me know. Seriously and sincerely in good faith. EiE.

[enoughisenough]

RE the reference to Norgan

 

here it is:

 

Although at common law mortgagees were entitled to possession the moment the ink on the mortgage deed was dry, the starting point now, whether it is a mortgage possession claim or an application to suspend a warrant, is Administration of Justice Act 1970 s36. That section gives the power to adjourn, stay or suspend if the arrears are likely to be paid during a “reasonable period”. On the face of it, this means the remaining term of the mortgage

 

Cheltenham & Gloucester Building Society v Norgan [1995] EWCA Civ 11 (05 December 1995),

 

http://www.creditlaw.co.uk/Cases/cheltenham.htm

[ryde]

GR

Everyone here is behind you here and willing to help with your problems,many may have been through similar situations,if you can give us some detail there may be a simple reasonable answer or tactics to employ, its always easier to deal with other peoples problems which you can look at objectively from the outside than your own.If pml are taking the repossession there is a chance they may not exist in a months time.Have similar situation looming myself in about 2 months and have already sucessfully been through the sole ownership with equitable co-owner scenario 10 years ago so know what to do from real court experience.

Edited November 6, 2009 by ryde

[enoughisenough]

Originally posted by Crapstone

 

So to clarify EIE did you approach the broker or did Barclays arrange for them to call you?

 

Half and half. Barclays offered me a loan. Then turned me down at the last hurdle and gave me a number to call. In all honesty I haven't really concentrated on this aspect because I was a numpty back then and never kept any paperwork, names or numbers. Shame on me. However I've argued that we must begin at the beginning and the OFT guidelines I've posted above are explicit. Whatever shenanigans your broker got up to falls squarely on the originator's shoulders. It's their responsibility and their first f*** up in a long line of f*** ups.

 

Once we've ironed the brokerage issues and breaches I propose we get straight down to the main course of the contracts/agreements themselves.

[ryde]

eie

agree lets get brokerage issues discussed,are they in law deemed to be the agents of the lender ie they stand in the lenders place?

[cagger80]

Lehmans lost the case today. Their argument with regard to United Stated Bankruptcy was unsuccessful

[ryde]

cagger 80

can you post the link this will have big implications.

[enoughisenough]

Here's the guidance:

 

http://www.oft.gov.uk/shared_oft/reports/consumer_credit/oft192v2.pdf

 

The key paragraphs are:

 

ii As before, the guidelines apply to secured lending to non-status borrowers - those with impaired or low credit ratings and who would find it difficult generally to obtain finance from traditional sources on normal terms and conditions. The guidelines highlight some of the main practices in this market which I consider to be deceitful or oppressive, or otherwise unfair or improper, within the

meaning of section 25(2)(d) of the Consumer Credit Act, and which would be likely to lead me to take regulatory action against those involved.

 

vii On 24 October 1990 the then Director General issued a press release entitled Credit Firms Warned on Loans to Non-Status Market. This followed warning letters to businesses marketing credit to those with serious debt problems. The letters listed examples of practices which the Director General regarded as unacceptable and which put at risk the holding of a consumer credit licence. These included failure to assess ability to pay, offers of inappropriate and sometimes catastrophic loans, and failure to explain that high brokerage fees could be charged and deducted from the loan.

 

ix The report noted that there was particular concern about abuses affecting the secured lending market where non-status borrowers - those with poor credit-worthiness - were induced to borrow on excessive or oppressive terms against the security of their homes without regard to their ability to repay the loan. The report identified examples of practices which would point towards an unjust credit transaction. These included marketing loans explicitly at those in debt; limited or no enquiries about income; pre- occupation with the value of the security rather than the borrower’s credit-worthiness (‘equity lending’); brokers’ or other advance fees, often substantial, which were not fully disclosed or explained; very high interest rates; and increasing interest when a loan was in arrears, sometimes in breach of section 93 of the Act.

 

They also included breach of the broker’s duty to act in the best interests of the borrower; illegal canvassing of agreements in consumers’ homes; irregular documentation including failing to give or misquoting interest rates and APRs; improper tying-in of insurance; falsifying information as to borrowers’ income or other aspects of their financial status; misrepresentation as to the form, nature, purpose or long-term implications of loan agreements; and unacceptably high-pressure selling techniques.

 

General principles

6 There are a number of general principles underlying these guidelines, of which the following are the most important:

 

! there should be transparency in all dealings with potential and actual borrowers, with full and early disclosure and explanation of all contract terms and conditions and all fees and charges payable

 

! there should be no high-pressure selling, and adequate time should be allowed for the borrower to reflect on the terms and conditions of the loan and to obtain independent advice before signing

 

! advertising and other promotional material should not mislead, and there should be no cold-calling or canvassing off trade premises without the borrower’s prior consent

 

! brokers should disclose at the outset their status with regard to the borrower and the lender, and the extent of the service offered to the borrower, together with any brokerage fee or commission payable by the borrower or the lender

 

! lenders should take all reasonable steps to ensure that brokers and other intermediaries regularly marketing their products do not engage in unfair business practices, or act unlawfully, and that they serve the best interests of the borrowers

 

10 The contract documentation should set out clearly the borrower’s rights and responsibilities under the agreement. Contract terms should be written in plain and intelligible language, and be easily legible. They should not be unfair within the meaning of the Unfair Terms in Consumer Contracts Regulations, taking into account the purpose and nature of the agreement and the circumstances giving rise to it and the relative bargaining strengths of the parties. All other documentation should similarly be written in a clear and easily comprehensible manner, avoiding use of legal and technical language. The name and address of the lender, together with the name of any parent company also active in the market, should be shown prominently in all contract documentation and correspondence.

 

14 If the loan is conditional on payment protection or other insurance, this should be made clear to the borrower at the outset. The contract documentation and any customer booklet or leaflet should set out clearly the purpose and nature of the insurance, and the contract documentation should also set out the terms of the insurance and its cost. The insurance should be appropriate to the borrower’s needs and circumstances, and should not give rise to unnecessary expense for the borrower. It will not always be in the best interests of the borrower for the insurance premium to be payable in a single lump sum, which is added to the loan. The borrower should generally be free to obtain the insurance from any source, subject only to the borrower providing the lender with satisfactory evidence of the insurance and its coverage.

 

20. ...the broker should disclose the factors which will determine its calculation, including whether it will be a percentage of the loan or a fixed sum, and whether it is intended to reflect the actual costs incurred by the broker in arranging the loan or is linked to the total volume or value of business brought to the lender over a given period. All such disclosures should be made in writing before the borrower enters into the loan agreement,

 

24. ...Brokers and salespersons should explain clearly to the borrower what the documents are and what they mean. They should make all reasonable efforts to ensure that the borrower genuinely and fully understands the nature and terms of the agreement and their obligations under it.

They should not mislead the borrower in any way, nor misrepresent as to

the form, nature, purpose or implications of the loan.

 

26....They should not distort the borrower’s income, or incite or acquiesce with the borrower to falsify details of income or employment or other information. They should not encourage the borrower to take out a loan which is higher than the borrower originally requested, or than the borrower genuinely wants or needs, or which is beyond the borrower’s ability to repay.

 

31. Brokers and lenders

 

The actions of brokers and other intermediaries involved in marketing a lender’s products can jeopardise the lender’s fitness to hold a consumer credit licence, as well as that of the broker. Section 25(2) of the Consumer Credit Act makes clear that the fitness of a licensee can be brought into question by the actions of any of its employees, agents or associates (whether past or present), and section 25(3) defines ‘associate’ for these purposes as including a business associate. A broker may be a business associate of a lender if the broker is tied to the lender (for example, through a right of first refusal agreement), or has an ongoing relationship with the lender, or frequently does business with the lender. This is a matter of fact and degree. It is not necessary for the purposes of determining that an association exists that any formal agency relationship should exist between the lender and the broker.

 

32 Lenders should take all reasonable steps within their control to ensure that brokers and other intermediaries marketing their products comply with all relevant statutory requirements, and with these guidelines, and do not engage in business practices which are deceitful or oppressive or otherwise unfair or improper

 

33. ...If a lender chooses to do business with a broker which it has reason to know or believe engages in business practices which are deceitful or oppressive or otherwise unfair or improper, to the detriment of consumers, its choice may be considered a circumstance relevant to fitness even if the lender has no formal control over the broker and no informal means of influencing the broker

 

38 Lenders should comply at all times with the principle of responsible lending. All underwriting decisions should be subject to a proper assessment of the borrower’s ability to repay, taking full account of all relevant circumstances including the purpose of the loan, the borrower’s income, outgoings, employment, age, state of health and previous credit history, and details of any other mortgages or loans or any life assurance cover or payment protection insurance. The aim should be to ensure that the borrower does not take on a commitment which they are unlikely to be able to fulfil.

 

41. ...If a lender fails to check the borrower’s ability to repay a loan secured on the borrower’s property, this will be irresponsible lending. It might also be regarded as lending on equity alone. Both of these the Office has long regarded as unacceptable.

 

55 If lenders wish to recoup the administrative costs incurred on default, they should do so by means of direct charges to the borrower. Any such charges should be reasonable, and should do no more than cover the lender’s administrative costs incurred on default.

This latter point confirms absolutely that the charges cannot be dumped on the arrears. They have to be a) the reasonable costs incurred b) charged separately and directly.

 

Ok It's apparent simply from looking at the brokerage issues and guidance that these filthy barstewards are up to their necks in regulatory breaches. All we've done is look at brokerage and the origination of the contract. Next issue please.

 

The contracts I believe.

[enoughisenough]

Can we get a link Up. Lehmans Loses -investors win right? They can grab control of the mortgages? Yes?

[enoughisenough]

Got it!

 

Lehman Brothers International (Europe), Re Insolvency Act 1986 [2009] EWCA Civ 1161 (06 November 2009)

[cagger80]

Can we get a link Up. Lehmans Loses -investors win right? They can grab control of the mortgages? Yes?

 

No, unless your mortgage is with Lehmans and not through a company that shares are owned by another company that shares are owned by another that shares are owned by Lehmans

 

This means that the contractual agreement between Lehmans and the investors is not restricted by United States Bankruptcy protection.

Edited November 6, 2009 by cagger80

[cagger80]

cagger 80

can you post the link this will have big implications.

 

Only if your mortgage is directly with Lehmans.

 

Lehmans only own all the shares in the company that owns all the shares in the company that owns all the shares in SPML etc.

[cagger80]

Lehman?s U.K. Administrator?s Can?t Distribute Assets (Update1) - Bloomberg.com

 

Nov. 6 (Bloomberg) -- Lehman Brothers Holdings Inc.’s U.K. bankruptcy administrators can’t go ahead with an expedited plan to distribute as much as $8.9 billion in assets to creditors, an appeals court ruled.

[enoughisenough]

I was just about to post that bloomberg link!

 

If PWC can't distribute the assets to the creditors, PWC then go ahead with an interim plan on a sign up basis. The creditors then have a take it leave it option and upon leaving it might file a claim against LBEI. This is about distribution of assets amongst the creditors. Not whether the creditors have an entitlement.

 

So I suppose the question emerges. Who are the creditors and what do they intend to do once their individual claims are settled. What on earth happens to the mortgages underneath the notes? The creditors repackage them again. But to whom? Vulture funds?

[ryde]

As far as I am aware and in my opinion Lehmans europe being administered by pwc own spml/pml/capstone and the like.pwc appealed against the decision:" that the assets held by lehmans europe should be returned to the investors because of the guarantees in the contracts with the spvs "

ie.the investor is in control of the whole asset instead of just the equitable title because of the failures of the spvs to service the investments(hence all the notices to the bondholders from eurosail) and the absence of any supporting finance from lehmans who are insolvent.ie. the bondholders/investors are entitled to the legal titles of the residential mortgage portfolio held by the originators in our cases spml/pml etc.

pwc had planned to return their invested funds over a period of time under a scheme they had concocted as an alternative this was the basis of their appeal and that is why they appealed because it has now with the refusal of this appeal been taken out of their control.Effectively this now means from my understanding that the legal titles will pass from spml/pml to the hedge funds/pension funds who will then seek to realise these assets instead of them being controlled by spml/pml/capstone and ultimately pwc.

This may eventually require reregistration of the legal charge on the property ,the opportunity for us would be to insist on the original contractual agreement being maintained.

all this is purely speculative at the moment obviously.

if you put yourself on the other side with all the different investment schemes why when you had a cast iron guarantee of holding a residential mortgage portfolio with prices now rising would you accept less and have your investment watered down by thousands of other claimants with different investment portfolios and how could pwc implement such a scheme?they would have to sell off to the highest bidder the mortgage portfolio because it is no longer producing the guaranteed returns.How this is going to be broken up god only knows,maybe there will be a fire sale as nearly happened last year.?

Edited November 6, 2009 by ryde

[ryde]

Just a quick thought if pwc or any other entity will now be in charge of the legal charge on our property haven't we got an input into all this by insisting that any such sale of the legal charge or transfer must be made with a contractaual guarantee to the original terms we signed up to(or thought we had signed up to!)

[enoughisenough]

Thanks for that Ryde. That seems to me to be avery clear synopsis if the situation we find ourselves in . Capstone will no doubt be fighting tooth and nail to keep themselves in the box seat re servicing. Otherwise they go under right?

[ryde]

It,s difficult to see how it can be done say investor x says you owe us a guaranteed sum of 1 billion in residential mortgage securities do they just bundle up 1 billion's worth and hand them over lock stock and barrel this was pwc,s scheme to deal with the investors in block.I suppose the investor can now demand priority and can demand their investment back in full due to the guarantees written into the spv contracts.Are the investors going to want a thousand residential mortgages on their hands with all the problems that will entail?I cannot envisage this so would assume they would want the cash equivalent to their investment and promptly with priority.So if you were pwc what would you do?

This is pure speculation,I would sell off as quickly as possible to the highest bidder or alternatively the big investors could be granted a block to sell off themselves thereby taking control of the sale until their investment was realised.Whatever happens the current spv set up cannot continue as it just isn't producing the return otherwise the investors could have left things as they stand and there would be no reason for the return of client assets held on trust.

Personally I think there will be a fire sale as there nearly was last year with the pml/spml mortgage books sold to the highest bidders and capstone put up for sale perhaps seperately.I believe the only reason they weren't sold was no one wanted billions of pounds of toxic(thats us) debts at that time and the price was too low and no one was making a fuss or litigating whilst the funds were still performing,so they just let it run.

As I say this is all pure speculation and the one thing everyone has is contractual guarantee for what thats worth,if that is not offered by the new owner we have the right to rescind the contract.

Of course someone like barclays could just buy the whole spml mortgage book at a knock down price and use spml as a trading name and continue using capstone as the servicer.!!!!spml would then of course hold both legal and equitable titles and the whole lot could be securitized yet again,but something else would have to be thrown in to the sale to barclays? so the investors get their full guaranteed return because no one will take this portfolio on at face value and pay the full amount owed to the investors.

[ryde]

found this interesting link re capstone ,insurance [problem] etc

Capstone Mortgages - Beware!

[enoughisenough]

Hi All

 

First off I've seen Shaun's site on the link above. Crapstone found it about three weeks ago. It's really good that this is getting out to a wider audience. Thanks anyway Ryde. I've been saying this for a year now. The door is open - we've just got to keep pushing at it.

 

My insistence of looking at brokerage issues was governed largely by an awareness that the vast majority of these garbage products were mis-sold under our noses and the regulators did nothing ( again) about this aspect. Dodgy origination is a very powerful argument because it raises a 'but for...' argument. But for the dodgy and unlawful practices of these clowns would we have even contracted to these mortgages? Not on your nelly. We were mislead up the garden path from day one It's the first piece in the jigsaw and effects many of us who have these mortgages. In terms of a class action it's right that the first question a Barrister would ask is how we all came by these mortgages. A case is incomplete it we don't look at it from top to bottom and in any case it's just another stick to beat them with.

 

No harm there then. That is now done and people can look at their own circumstances and identify the breaches. Once you suspect a breach of these regs, we need to do some fact finding. My view is that the best way is for each of us who has the issue to write to your originator / Capstone detailing your concerns over how your mortgage was sold to you and why you think they are responsible. When they tell you to get stuffed, they've just fell into the bear pit because you can then raise it with the FSA OFT and the FOS. Yet another flood of complaints. From there once they've responded they'll presumably do so with the main regulations and points of law. That then gets precised and filed for the barrister's opinion. I know that this is time consuming but it is precisely what we need to be doing. I wouldn't do this if I didn't think it was the right approach and we are all under pressure. They've come after me twice this year but I'm still hanging on and still fighting back. If they want our houses they are going to have to work for them.

 

OK. So moving forward to the main areas of concern re the contracts. Just some thoughts off the top of my head which need refining.

 

1. NO intention on their behalf to fulfill the term- that is absolutely clear and demonstrable in the prospectus and is mentioned in the GMAC-RFC final notice. However the sale agreement is what we need. If it ever comes to the day an eminent barrister is batting in court on our behalf I believe they would be ordered to disclose under CPR but I don't think we stand a cat in hell's chance of getting this on our own. However we need this. IT is as GR and JC have said the absolute core of the case. Unilateral repudiation with concealment. Can a legal bod assess whether that's what we are talking about? NO intention to fulfil the term and a clear indication that in fact the intention was to force early redemption of the notes.

 

2.Tcs and Cs coming within the UTCCRs 1999 (specifically the following)

 

In 1993 the European Union published a Directive on unfair terms in consumer contracts (Council Directive 93/13/EEC). The Directive was implemented in the UK via the Unfair Terms in Consumer Contracts Regulations 1994, which came into force on 1 July 1995. The regulations were amended in 1999, in the form of The Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999 No 2083) (the Regulations).

 

In respect of Schedule 2 of the regulations a non-exhaustive list is provided of terms which may be regarded as unfair.

 

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;

 

(m) giving the seller or supplier … exclusive right to interpret any term of the contract;

 

(o) obliging the consumer to fulfil all his obligations where the seller or supplier does not perform his;

 

(q) excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.

 

 

Regulation 8(1) ‘An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer’.

 

5 (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.


 


(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

3. The Unfair Consumer Practices Directive 2008 My thinking is that these may apply to some of us, however I would appreciate a Sue or somebody to offer opinion as the whether this directive can apply to pre-existing contracts:

 

In regards to The Unfair Commercial Practices Directive 2008 this act provides that it is an offence to engage in a commercial practice which “materially distorts the economic behaviour” of the consumer, or to “appreciably impair the average consumer’s ability to make an informed decision thus causing him to take a transactional decision that he would not have taken otherwise.”. We would not have entered into contract with these sharks had full disclosure concerning the terms and conditions been made.

 

The Act also provides that an action such as the presentation of commercial terms, though factual, may still be misleading:

 

5.—(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).

 

(2) A commercial practice satisfies the conditions of this paragraph—

(a) if it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and

(b) it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

 

In addition, in respect of misleading omissions:

 

Misleading omissions

6.—(1) A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—

 

(a) the commercial practice omits material information,

(b) the commercial practice hides material information,

© the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context, and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

 

4. Incomplete Deeds and failure to register the disposition with the Land Registry. (MY deeds have five pages missing and the one remaining page isn't even signed)

 

See Land Registration Act 2002 s.27(3) and Schedule II, paras. 8 and to 10. (Sch. II, para.10: “In the case of a transfer, the transferee, or his successor in title, must be entered in the register as the proprietor”. See also Law Commission Report printed 9 July 2001. Law Com No. 271 HC114 at para. 4.30

 

Also from the prospectus:

 

“Neither the Issuer nor the Trustee currently intend to effect any registration at The Land Registry of England and Wales or any registration or recording in the Registers of Scotland to protect 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.”

 

I have to pop off now but if anyone can add or refine that's great. Let's get this rocking. Note to self don't forget FSMA 2000 and CCA 2006

Edited November 7, 2009 by enoughisenough

[wonderman]

SPML v Heath: Court of Appeal

 

As usual, the court held against the borrower (no surprise there). The passage that is of great interest is para. 9 where there is a parenthesis reference "at the relevant time". This obscure little reference is the court's acknowledgement that the CCA was reformed by the CCA 2006.

 

Yes, REFORMED. So the "relevant" time is now. The time at which the Act is being interpreted. The CCA 2006 s.2 states that s.8(2) of the CCA 1974 "shall cease to have effect". So on the 5th November 2009 (the date of the hearing), s.8(2) HAS NO EFFECT.

 

Note that the CofA avoided Parliament's reform of the Act. Parliament intended for consumers to have the protection of the Act, but the CofA so love the lenders, they will ignore Parliament's Act telling the courts that s.8(2) SHALL CEASE OF HAVE EFFECT. CCA 2006 is the provision that removes the financial limits. Therefore, a REGULATED consumer credit agreement is any agreement for any amount of money UNLESS the lender has a s.16 exemption. SPML do not have a s.16 exemption.

 

Well, I hear the cries of persons who may argue that that provision is not retrospective. In answer, take a look at Commencement Order No. 4. S.I. 2008/831.

 

In that commencement order, Parliament ordered that there is only one circumstance in which the CCA 2006 s.2 is NOT retrospective. It is not retrospective when there is a CCA 1974 s.82 in issue. In the Heath case there was no CCA 1974 s.82 issue. As a matter of logic, if Parliament did not intend the CCA 2006 s.2 to have retrospective effect, why bother to mention one circumstance where it is not retrospective. Seems daft to mention one circumstance if s.2 was not retrospective anyway.

 

There's more, the Explanatory Notes to CCA 2006 para. 16 explains:

 

The 1974 Act currently applies only to agreements where credit provided or the hire payments to be made do not exceed £25,000. In future, all consumer credit and consumer hire agreements will be regulated by the 1974 Act unless specifically exempted, regardless of the amount of

the credit or the amount of the hire payments.

 

Note that it says the 74 Act CURRENTLY APPLIES ONLY to agreements under £25K, but IN FUTURE it will apply to all agreements UNLESS SPECIFICALLY EXEMPTED.

 

So now (in my opinion) the CCA 1974 applies to all agreements unless the lender has a s.16 exemption.

 

People may say: why would the lenders with their powerful lobby allow Parliament to do this? That's because those powerful banks with the s.16 exemption WANT TO BE EXEMPTED FROM THE ACT AND THEY WANT IT TO BE RETROSPECTIVE - WHY - because, they are currently suffering from thousands of credit card agreements which are unenforceable. If the lifiting of the financial limits is retrospective, then those credit card companies (who all have a s.16 exemption), can say, ha ha, we are exempt from the CCA so you people who say your credit card agreement is unenforceable can take a hike. You have no defence because we are s.16 exempt.

 

Now you can see that the retrospectiveness of CCA2006 s.2 benefits the powerful banks. But here's the catch. For the likes of SPML who do not have a s.16 exemption, the lifting of the financial limits has the opposite effect. It means that mortgagors who have borrowed from these crooks now do have the protection of the Act which means, Miss Heath's agreement is: A REGULATED CONSUMER CREDIT AGREEMENT.

 

It will be very interesting to see the credit card companies argue themselves out of the CCA 1974 when it comes to enforcement of their (previously unenforceable) credit card agreements and yet, when the lender does not have a s.16 exemption, the courts still refuse the borrower the protection of the act. Having your cake and eating eh. Well the courts will continue to feed that cake into the mouths of the greedy bankers. The courts won't allow you a crumb!

 

Anyway, if the courts do not want to acknowledge the retrospective effect when it comes to us mortgagors at the hands of these criminal lenders, then that's great news for those with unenforceable credit card agreements - go to it - if you have an unenforceable credit card agreement then you can continue to use the CCA defence. They can't have it both ways!!