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

[enoughisenough]

Excellent post wonderman. Just trying to get a grip on the legal niceties. So the ratio in Heath makes SPML mortgages unenforceable? An unintended consequence of the Heath stitch up perhaps?

 

PS ALL. This Article needs a read by anyone arguing their lender did not follow the Civic Justice Council's Pre-Action Protocols. (Which of course we all know, they don't).

 

New pre-action protocol for mortgage possession claims | The Law Gazette

Edited November 7, 2009 by enoughisenough
Misleading usage

[gustavius rex]

But, if l now understood this right, credit card agreements under £25,000.00 will still fall under the 1974 Act?

GR

[ryde]

Thanks eie and wonderman for some good positive digging am confident this is heading in the right direction.

[wonderman]

GR, As I see it, the CofA avoided the fact that the CCA 2006 s.2 means that Ms Heath's agreement is a regulated agreement. But hey, let them have it that way because now the credit card companies cannot argue that s.2 is retrospective. So all those unenforceable credit card agreements are still unenforceable (although watch-out for ourarbitary courts change their minds when it comes to CCA 2006 s.2 in relation to credit card agreements vis-a-vis the credit card banks!).

 

Either s.2 is retrospective or it is not. At the moment, in relation to mortgagors, the courts appear to ignore its retrospective effect and by natural consequence say that it is not retrospective. But I wouldn't mind betting that when there's a case in relation to credit card companies, all of a sudden s.2 will be retrospective. Would be interesting to look at the credit card threads to see if this is already happening to them. How capricious our laws really are. The rule seems to be, the borrower is always set to loose no matter what the law is.

[cagger80]

"If" the CCA 1974 applied to all credit agreements including 1st charge mortgaged provided by SPML, there would then be dual regulation of these mortgages. As any 1st Charge mortgage after 31st October 2004 is regulated by the FSA as per the FSMA.

 

Dual regulation is a topic that has been greatly debated on the Internet and should be researched before reaching any conclusions.

[enoughisenough]

As regards my "faith" in the FSA, this is what they are up to at the moment. JHC, get a move on...Oh and If Capstone are one of the six miscreant firms I want them fined back into the stone age for what they've done. I'll say it again: Francovich damages.

 

Francovich principle

 

Anyway mini rant over:

 

House of Commons - Mortgage arrears and access to mortgage finance: Government and Financial Services Authority responses to the Fifteenth Report from the Committee - Treasury

[cagger80]

"If" the CCA 1974 applied to all credit agreements including 1st charge mortgaged provided by SPML, there would then be dual regulation of these mortgages. As any 1st Charge mortgage after 31st October 2004 is regulated by the FSA as per the FSMA.

 

Dual regulation is a topic that has been greatly debated on the Internet and should be researched before reaching any conclusions.

 

Please see 4.1

 

http://www.opsi.gov.uk/si/em2005/uksiem_20052967_en.pdf

[ryde]

Consumer Credit Act 2006 – concerns for mortgage lenders | Mortgage Finance Gazette

 

useful reading applies to securitisations and possible unenforceability thought I better post it quick before I lost the link hope I haven't repeated someone else's post.Some big implications here for both lender/originator and the spvs if this act bites and the test of reasonablemess etc is used,please have a look,I wasn't even aware of the act or its implications.

and yet more:

http://www.publications.parliament.uk/pa/cm200809/cmselect/cmtreasy/766/766we10.htm

 

THINK THIS SAYS IT ALL EVEN QUOTES DIRECTLY SPML/SPPL AND THIS FORUM

THIS APPEARS TO BE THE CASE IN OUTLINE ALREADY DONE FOR US

PLEASE HAVE A LOOK AND GIVE YOUR OPINION

Think eie and crapstone may have raised this subject back in June/July !! many apologies if I have hijacked anybodies posts as this goes back well before I joined,shows how much work and time people have put into this for which they should get full credit.

Can the real Mr Fulcher please step forward.

Edited November 7, 2009 by ryde

[truro]

I‘ve been off line for some time due to the repossession/eviction order on my property and having to move out of my house and live with a relative for a few months. I’ve gone through 3 appeals for benefits to help pay my mortgage I was told I am not entitled to benefits or re-housing by the council.

I’ve been following the threads and I’m please you have reach a consensus regarding the way forward in fighting these crooks. I did suggest unfair relationships a few months ago after reading the Lehman prospectus and realized how these companies were operating. I believe we all have unfair contracts and under the Consumer Credit Act 1974, which enables borrowers to challenge unfair credit agreements in court and obtain redress, if the overall relationship is unfair to the borrower.

I have another hearing next week and I’m fairly confident I will not be evicted as I’m now getting help from the DWP. I believe the DJ was considerate when confronted with my arguments and the barrister did help as he was mis-informed about the case and lied that I did not offer to make payments to LMC and did not want to give me time to pat off the arrears. The Subject Access Request Statements showed that I called several times offering money which they declined and wanted me to pay the arrears which I could not afford to do because of ill-health and part-time work.

I’ve sent the info about GMAC-RFC to the ITN reporter and he said he will continue his research into these companies. Lets hope he will do so, so that others suffering in silence will be aware of the fraudulent way in which these companies are operating.

My statement is below.

Truro.

I am the defendant in this case and respectfully request that the court consider the following when hearing the above claim for eviction:

l I ask the court to accept this defence as I was in the process of completing a sale on the property, and that prior to and after repossession order that I have tried to reach an agreement with London Mortgage Company to settle my arrears, i.e. Subject Access Request Statements.

l I also request that the court consider the information set out in the Lehman Brothers prospectus in regards to “Title to the Mortgage Pool” – ( 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).

l I have reason to believe that my mortgage was not ‘a true sale’ as there was only a transfer of assets when my mortgage was transferred from Matlock Bank Limited to Southern Pacific Limited. The lender Matlock Bank was unfair to me a borrower, when they conceal their intentions to transfer my mortgage May 2 2006, (Save as mentioned below, notice of the assignment to the Issuer of the Loans and Collateral Security and their subsequent charging or assigning to the Trustee will not be given to the Borrowers), to SPML a subsidiary of Lehman Brothers for sale in the ‘Initial Mortgage Pool’ to the Issuer. (The assets, a portfolio of residential mortgage loans were acquired by the issuer in accordance with the terms of the Mortgage Sale Agreement established by (Eurosail-UK 2007-5NP PLC). ( Until the legal interest of the Issuer or, as the case may be, the Trustee, has been perfected, the Issuer, or as the case may be, the Trustee may also need to join the relevant Legal Titleholder in any legal proceedings taken against the relevant Borrower).

Taken from Lehman Brothers Prospectus dated November 16 2007

Issuer: The Issuer’s entire issued share capital is held by Eurosail-UK 2007-5NP Parent Limited (the “Parent”) except for one share held by Wilmington Trust SP Services (London) Limited (the “Share Trustee”) as nominee of the Parent under the terms of a share trust dated 15 October 2007 (the “Share Trust”). The entire issued share capital of the Parent is held by the Share Trustee under the terms of a trust established under English law by a declaration of trust dated 19 October 2007 (the “Charitable Share Trust”) for the benefit of certain charitable purposes.

The Issuer has been established to acquire a portfolio of residential mortgage loans (individually the “Loans”, collectively and, together with the Collateral Security (as defined in Condition 2 (Status, Security and Administration)) relating thereto, the “Mortgage Pool”): (i) originated by Matlock London (formerly Matlock London Limited) (“Matlock”) trading as London Mortgage Company (by itself or in association with a Remote Processor (as defined under “Title to the Mortgage Pool” below)) and acquired by Southern Pacific Mortgage Limited (“SPML”).

Sale of Loans

The Loans and the Collateral Security comprised in the Initial Mortgage Pool will be sold on the Closing Date by the Sellers to the Issuer. Substitute Loans, Ported Loans, Prefunded Loans and Newly-Originated Loans may be acquired by the Issuer from a Seller after the Closing Date, in each case in accordance with the terms of the Mortgage Sale Agreement. – (Lehman Brothers Prospectus - Dated 16 November 2007- Eurosail-UK 2007-5NP PLC.

· The Consumer Credit Act 1974 enables borrowers to challenge unfair credit agreements in court and obtain redress, if the overall relationship is unfair to the borrower.The unfair relationships provisions Section 140A of the 1974 Act (as amended) provides that a court may determine that the relationship between a lender and a borrower arising out of a credit agreement (or the agreement taken with any related agreement) is unfair to the borrower because of:

(a) Any of the terms of the credit agreement or a related agreement

(b) The way in which the lender has exercised or enforced its rights under the credit agreement or a related agreement, or

© Any other thing done (or not done) by or on behalf of the lender either before or after the making of the credit agreement or a related agreement.

· In addition, where unfair relationships harm the collective interests of consumers, the OFT and other enforcers (including local authority trading standards services) can take enforcement action under Part 8 of the Enterprise Act 2002.

· To the best of my knowledge from the information abstracted from the(The Lehman Brothers Prospectus dated 16 November 2007- Eurosail-UK 2007-5NP PLC), the claimant Southern Pacific Mortgage Limited t/as London Personal Loans, no registration of the company (LPL) at Companies House have misrepresented themselves to the court as the mortgagee by virtue of their failure to inform the court that they sold the mortgage to Eurosail and by virtue of that fact Eurosail have not complied with the s.27 of the LRA and registered itself as the legal owner of my mortgage.

· The prospectus clearly states that: - Enforcement - In order to enforce a power of sale in respect of a property, the relevant mortgagee (which may be the relevant Legal Titleholder, the Issuer or the Trustee) must first obtain possession of the Property. Possession is usually obtained by way of a court order although this can be a lengthy and costly process and will involve the mortgagee assuming certain risks. See “Title to the Mortgage Pool - Enforcement Procedures” and “Repossession Procedures”

· Under Section 150 of the FSMA, a borrower is entitled to claim damages for loss suffered as a result of any contravention by an authorized person of an FSA rule. In the case of such contravention by an originator, a borrower may claim such damages against the originator, or set off the amount of such claim against the amount owing by the borrower under the loan agreement or any other loan agreement that the borrower has taken from the originator.

(d) a consumer may also challenge a negotiated term in an agreement on the basis that it is “unfair” and “unreasonable” within the legislation and therefore not binding on the consumer; and (b) in any challenge by a consumer (but not by the OFT, the FSA or any other qualifying body) of a standard term or a negotiated term, the burden of proof lies on the business to show that the term is fair and reasonable.

Such Loan will have to comply with requirements under the CCA as described above and, if it does not comply, it will be unenforceable without an order of the OFT or without a court order, as described above.The CCA 2006 also amends the CCA by:

(a) strengthening the licensing regime;

(b) changing the grounds for challenging a credit agreement, from “extortionate credit bargain”, to “unfair relationship” between the lender and the borrower, with retrospective effect on existing agreements; and

© extending the jurisdiction of the Ombudsman to licence-holders under the CCA.

• The Sellers have interpreted certain technical rules under the CCA in a way common with many other lenders in the mortgage market. If such interpretation were held to be incorrect by a court or other dispute resolution authority, then a Loan, to any extent that it is regulated by the CCA or treated as such, would be unenforceable as described above. If such interpretation were challenged by a significant number of borrowers, then this could lead to significant disruption and shortfall in the income of the Issuer. Court decisions have been made on technical rules under the CCA against certain mortgage lenders, but such decisions are very few and are generally county court decisions which are not binding on other courts.
  

Under Section 75 of the CCA in certain circumstances:

(a) the lender is liable to the borrower in relation to misrepresentation and breach of contract by a supplier in a transaction financed by the lender, where the related credit agreement is or is treated as entered into under pre-existing arrangements, or in contemplation of future arrangements, between the lender and the supplier; for example, the relevant Originator is liable to the Borrower in relation to any misrepresentation and breach of contract by the supplier of insurance financed by the Loan in such circumstances; and

(b) the lender has a statutory indemnity from the supplier against such liability, subject to any agreement between the lender and the supplier. The borrower may set off the amount of such claim against the lender against the amount owing by the borrower under the loan agreement or under any other loan agreement that the borrower has taken from the lender. Any such set-off may adversely affect the ability of the Issuer to make payments to Noteholders.

l I assure the court that I have offered to clear the arrears and respectfully ask that eviction is suspended in order to satisfy the court that Southern Pacific Mortgages Limited t/as London Person Loan is the mortgagee, also to enable me to maintain a stable home for myself and my daughter, avoid the expensive and unnecessary costs which would undoubtedly arise following repossession in the current property climate.

I believe the above to be true and factual.

[enoughisenough]

Hi Truro

 

I'm posting on a mobile at the moment so I'll have to keep this brief. Your story and the way you have gone about fighting to protect your interests are testimony to your courage. Their conduct will remain testimony to their cowardice. **** and lily livered **** at that! They could not possibly hope to win a fair fight on the relevant legal arguments without the support of a bent civil justice system. If the regulatory authorities and the courts were neutral their arses would be Kentucky Fried Chicken.

 

However as a cautionary note the CCA 1974 does not assist us. Why it's defined as a risk factor in the prospectus is beyond me. Either those who drew up the prospectus are fiendishly clever and there are CCA 74 risks or they are just providing unsophisticated investors with some impressive sounding BS.

[midge61]

Good luck for next week Truro

[ryde]

Truro

Your defence takes us back to the legal and equitable assignment argument again and I stand on the side that there has never been a legal transfer of the charge from in your case spml to eurosail,the transfer was only equitable as clearly stated in the eurosail prospectus.SPML retain the legal title of the charge registered on your property and as such have the right to sue and repossess it.It is purely my opinion that this defence will fail on this ground but am sure others here would support this.I assume the registered charge is in the name of spml.Have you got a definite buyer for the property ie a firm offer?

Personally i would also concentrate on the overcharging side which drove you to this position,the fact that you have offered payments etc.There must be a suspended repo order for you to get to the eviction stage.

If you haven't seen this already look at this link ,if I was in your position i would strongly suggest you extract the relevant applicable parts of these submissions to your situation and use them as part of your defence rather than the legal assignment argument which from my own personal experience just did not work.

How was the loan transferred from matlock bank to spml and did they tell you,i believe littledotty may have had similar experiences so take a look at her posts.Was the charge on the property originally in the name of matlock bank?

wihout knowing all the circumstances of how you have arrived at this position its difficult to give accurate advice.

anyway heres the link.Just lift applicable bits out and add to your defence.you only have to suceed on one issue so the more the better as long as you can prove their relevance.

link:

House of Commons - Treasury - Written Evidence

Edited November 7, 2009 by ryde

[truro]

Hi All

 

The statement posted was what I presented to the DJ the last time I had a hearing in June. I'm a law person although I did contract law at university many years ago and after reading information on this site from the caggers, I felt I had to help myself out of the hole I was in, or loose my property to this repossession company SPML.

The consumer credit act and the Lehman prospectus help me put the statement together and I believe that's why SPML could not evict me from my home. This is the section I believe will help us if we are going to fight them - In addition, where unfair relationships harm the collective interests of consumers, the OFT and other enforcers (including local authority trading standards services) can take enforcement action under Part 8 of the Enterprise Act 2002.

We have all had bad experiences with these companies under Lehman because of the way in which they traded the mortgages and including holding onto overpayments by borrowers. My mortgage was originally with Matlock Bank t/as LMC, then Spml informed me in May 2006 of the transfer, now they have presented themselves to the court as London Personal Loans when my loan is still with LMC. Is it fair to us consumers to have our loans swtiched from one company to the other as and when they liquidate and re-register under another name and all of this without informing the borrowers?

 

The terms of the agreement is unfair to me and I will not let them take my home without a fight.

[enoughisenough]

Truro

 

I'm in agreement with Ryde. As plausible as it may well be, and I see that a new poster has argued on these line's with great authority, I don't think at this stage the courts are going to listen. Indeed I had one district judge think that securitization mean that then lender secures a charge against the property. THey are wilfully ignorant sometimes because he knew full well what I meant when I said that the issues are whether the assignment is equitable or legal and secondly whether there is serious remediable consumer detriment arising out of the securitisation process, which we all know there is.

 

We will move heaven and earth to help you. Keep the faith.

[cagger80]

If you are going to use section 75, please read this, especially the financial limits and circumstances

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft303.pdf

[the thiefs]

I think its a joke we are left in this position,i cant get a mortgage with anyone else and i am worried about my existing mortgage.

 

As far as i am concerned the investors took a risk with investing in lehmans they have gone bust.so we should be the winners all mortgages should be wiped out.

 

We have been ripped off ,why should people that find it hard to get a mortgage be ripped off.Well its about those filthy rich investors lost im affraid they gambled and they lost

 

 

investors lost and we were the winners for once. This country is in a mess

[Crapstone]

Truro,

 

I agree with the other posters that have commented. Now isn't the time to complicate matters.

 

You need to keep the roof over your head and that is simply a case of affordability and pointing out the unfair charges that should not be included in the arrears.

 

The judge will give very little regard to anything else you put forward and, if you are anything like me, you end up up getting a tad angry which doesn't help matters because the judges gets a bit miffed when voices become raised in court.

 

Keep it as simple and as factual as you can with a payment schedule to clear the arrears and ask that no further charges be added as they will compromise your future position. Stress that you have tried to come to payment arrangements and, as in GMAC-RFC, the lender did not follow the correct proceedures and the courts were not used as a last resort.

[Crapstone]

I think its a joke we are left in this position,i cant get a mortgage with anyone else and i am worried about my existing mortgage.

 

As far as i am concerned the investors took a risk with investing in lehmans they have gone bust.so we should be the winners all mortgages should be wiped out.

 

We have been ripped off ,why should people that find it hard to get a mortgage be ripped off.Well its about those filthy rich investors lost im affraid they gambled and they lost

 

 

investors lost and we were the winners for once. This country is in a mess

 

It is a joke.....or at least we are in their eyes.

 

If anyone reading this has problems meeting their mortgage payments then DO contact your lender, and stay in touch with them. Don't bury your head in the sand however difficult the situation may seem.

 

The more you can prove that you've tried to talk to them and make arrangements to pay before (or in early stages of) any arrears, the less likely it is that they will be able to get a possession order at a later date.

[ryde]

the thiefs

agree with your setiments entirely but we are bottom of the food chain and law of the jungle applies here.If we go bust our worldly posessions are sold at a usually fixed public auction at a usually derisory price.

These crooks get rid of billions of pounds worth of assets within 5 years to the spvs and trade while the whole group is insolvent,we'd get jailed for this. We should get the chance to buy our mortgages back at market price but they've already sold them and spent the money.

THERE IS A CASE HERE IN ITSELF HOW CAN THEY GET AWAY WITH IT AND WE CANNOT.?

Edited November 8, 2009 by ryde

[wonderman]

Re: CCA 2006 s.2 means that your mortgage agreement is a regulated consumer credit agreement.

 

See OFT leaflet attached. Especially, para. 1.2 which states:

 

The Act was amended by the Consumer Credit Act 2006 both to bring certain previously exempt agreements into the category of regulated agreements, by removing the upper financial limit beyond which an agreement was not subject to regulation, and to provide for new exemptions, with effect from 6 April 2008. A further exemption, relating to buy-to-let agreements, came into effect from 31 October 2008.

 

Agreements such as your mortage was PREVIOUSLY unregulated under the CCA 1974, but since the CCA 2006 s.2 came into force, as the OFT tells you: agreements that were previously unregulated NOW come into the category of regulated agreements.

 

If you entered into your mortgage agreement BEFORE 31 October 2004, then NOW, your greement is a regulated unless the lender has a s.16 exemption. So the question is for those of you with an SPML agreement dated prior to 31 Oct 2004: DOES SPML HAVE A SECTION S.16 EXEMPTION? Answer: No.

 

Those mortgage agreements that are entered into AFTER 31 Oct 2004 are regulated under the FSA (for what its worth as the FSA is no help to any borrower)

 

Most of the pre-Oct 2004 SPML borrowers probably have a defence under the CCA 1974. But as we all know, trying to get the courts to listen to a borrower and trying to get the courts to enforce legislation against the lender is quite another matter in practice.

CCA 2006 oft140.pdf

Edited November 8, 2009 by wonderman

[the thiefs]

I have been reading this thread for weeks im just a bit upset with it all, rates are historically low and banks want to lend at rates of 5%.dont make sense.

 

I was sold my mortgage through a rip off broker who charged me £1000 just to get the mortgage. i think the only reason he used spml was because he got a nice cut off them while fiddling all the paperwork to get it. My credit rating was great before i mortgaged with these guys now i cant even get credit at the local corner shop.I am 8000 in arrears and i have to pay a 100 pound a month towards the arrears by court order. but this happened because i was made redundant about 2 months after getting the mortgage i am okay now but i would like to get the litigation charges back because then i would only be £6000 in arrears.

 

I FULLY SUPPORT YOU GUYS IN WHAT YOU ARE TRYING TO DO

[ryde]

the thiefs

they force these charges on you illegally so they can repo your property this is their sole aim they have already promised the spv to whom they have sold your mortgage that the securitzation will be finished in 5 years.

House of Commons - Treasury - Written Evidence

read this link i bet your story is probably nearly identical and bu...r all has been done about it.

[the thiefs]

I did come across that before.i am just worried about what is going to happen in the future, are we going to lose our houses. i always meet the monthly payments and i have plans to clear all the arrears early next year.

 

We should be the first to know about whats going to happen it just seems to me its all about the investors getting there money back,what about me and my three kids.The investors should be the last ones they should be worrying about.It should be them making us feel secure in our own homes as we dont live in mansions like those rich **** bags.

Edited November 8, 2009 by the thiefs

[the thiefs]

Ryde

 

the brocker i used was a crook who lived in enfied and used to smoke big fat cigars.He wasnt regulated he was one of ronnie and reggies mates how comes he was allowed to get away with organising mortgages unregulated.

[Crapstone]

 

Most of the pre-Oct 2004 SPML borrowers probably have a defence under the CCA 1974. But as we all know, trying to get the courts to listen to a borrower and trying to get the courts to enforce legislation against the lender is quite another matter in practice.

 

Exactly. You know what to expect if the time slot given is just 10 minutes or so. How are you expected to put across several years of conspiracy and deliberate mis-selling in that amount of time to save your home?

 

Like anything else, you get what you pay for and the judges know it's not worth them spending time looking over the cases..just have the rubber stamp handy..let them say a few words and then it's, 'Next please'.