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

[supersleuth]

Thank you Super,

 

so it is only the security for the loan and not the contract/agreement that has been sold to the spv

 

Hi Mrsiphone,

 

Thank you for alerting us to that distinction. It is very important and helpful.

 

Wot2do,

 

No, both the Mortgage Deed and the loan agreement has been sold to the SPV...

 

BUT...

 

the originator is argues that because of s.136 "written notice" element, they say they only sold an equitable title to the LOAN AGREEMENT. Now whilst that may be an arguable point, it is not the loan agreement that gives them the right to POSSESSION. It is the mortgage deed that gives a legal right to possession. Thus, s.136 is irrelevant to the mortgage deed because it is an action in possession under the mortgage deed.

 

Note that when the court give a possession order under a mortgage deed i.e. a possession in action -

 

they will also usually give a money judgement on the debt too! i.e. a chose in action. Thus the money judgement on the debt is the chose in action - so they may be entitled to a money judgement under the s.136 ruse, but they are not entitled to an order for POSSESSION. This is because they have transferred all their legal rights and title under the MORTGAGE DEED to the SPV and not only has the SPV availed itself of all its legal rights and title, the SPV also has an irrevocable power of attorney assuring it that the Originator will not use the powers of the legal owner. The irrevocable power of attorney is an additional neccessary document because: from the outset, both the originator and the SPV unlawfully and criminally agreed that they would suppress and conceal the sale of the legal title from the LR.

 

The reason I say, the originator MAY be entitled to a money judgement order (for its chose in action) is because I do not believe they are entitled to a chose in action claim either. Firstly, because they are using a statute law as an instrument of fraud and there is precedent for the propositiion of law that a statute cannot be used as an instrument of fraud. And, because the equity jurisdiction cannot be used to perpetrate a fraud. Secondly, they use those few words in the statue in order to commit the criminal offence to conceal their transfer of the legal title to the SPV. They use those few words to violate the LRA s.27 and s.123 and they use those few words in the statute to defraud you!

 

Moreover, the case law on LPA s.136 does not support the manner in which these 21st century lawyers have maniupulated and distorted those words from the original purpose of s.136. The original purpose was to PROTECT the borrower, not to DECEIVE the borrower as the lawyers and bankers now choose, without lawful precedent, to use those statutory words.

Edited January 2, 2010 by supersleuth

[enoughisenough]

Originally posted by Supersleuth

 

Moreover, the case law on LPA s.136 does not support the manner in which these 21st century lawyers have maniupulated and distorted those words from the original purpose of s.136. The original purpose was to PROTECT the borrower, not to DECEIVE the borrower as the lawyers and bankers now choose, without lawful precedent, to use those statutory words.

 

Agreed. But don't forget the increasingly despised courts in that particular roll of dishonour!

[enoughisenough]

Originally posted by ITBG?

 

'ONE-80-SEVEN ON A UN-DA-CUVA JACKAL’

 

Interesting that this post ONE EIGHT 0 SEVEN is one of my posts on this thread.

 

Coincidence? Needed for rhyming purposes? Missing a cultural reference here? Or something else....?

 

If you think I'm the Jackal just grow some and say so. OUTRIGHT AND UNAMBIGUOUSLY. So we all then know where we stand.

 

And then of course you will be 100% incorrect. If on the other hand you think someone else is the jackal (by which I assume you mean - Capstone troll on this site) then say who you think it is and watch your posting status get neutered by the mods.

 

Waste of time all this. Glad I haven't wasted my first afternoon back or anything like that.

[supersleuth]

Agreed. But don't forget the increasingly despised courts in that particular roll of dishonour!

 

You're right. The courts are complicit in the distortion of the law in assisting the money lenders with their fraud, and also assist with their violations of Art 6 right to advance your case by denying DISCLOSURE. Where's Portia??? Even the court's in Shylock's day would not permit money lenders to draw BLOOD!

[Suetonius]

Interesting that this post ONE EIGHT 0 SEVEN is one of my posts on this thread.

 

Coincidence? Needed for rhyming purposes? Missing a cultural reference here? Or something else....?

 

If you think I'm the Jackal just grow some and say so. OUTRIGHT AND UNAMBIGUOUSLY. So we all then know where we stand.

 

Hi EIE,

 

Without sounding big headed, I think ITBG? is referring to me as the un da cover jackal.

 

As for ONE EIGHT 0 SEVEN

 

I think this is in reference to

 

187 (murder) - Wikipedia, the free encyclopedia

 

I suppose in a warped world that could be interpreted as a death threat

 

(the above is said in jest)

[enoughisenough]

Hi Sue,

 

Which bit would be the jest....?:D:D

 

ITBG? Spoke of 2 Jackals and I always assumed that the bad guy had you in mind as one of them. Not that I did but people will take that as a reflection of my judgment.

 

Thanks for the cultural reference I was sadly lacking in.

 

Welcome back by the way and Happy New Year, both to yourself and all. (Including genuine guests but of course not the trolls...)

[ryde]

supersleuth

As promised the relevant sections from the eurosail prospectus.

Its a long one.

 

Certain legal considerations

Title of the Issuer

Legal title to the Mortgages in the Mortgage Pool has remained, since origination and will remain: (i) in the case of the SPML Loans, with SPML and in the case of Loans originated by SPPL, with SPPL, as the case may be; and (ii) in the case of the PML Loans, with PML. Subject to the completion of applications to The Land Registry of England and Wales, the Registers of Scotland or the Registers of Northern Ireland, as applicable, for registration of the transfers, the legal title to the A&L Loans will remain with A&L. On the Closing Date, it is expected that legal title to the majority of the A&L Loans shall have been transferred to SPML.

Legal title to the Loans and their related Collateral Security will be transferred to the Issuer only in the limited circumstances described under “Title to the Mortgage Pool” below. Prior to the Issuer or the Trustee obtaining legal title to the Loans and their related Collateral Security in accordance with the terms of the Mortgage Sale

Agreement, SPML (subject, with respect to the A&L Loans to the preceding paragraph), SPPL and PML (in such capacity, a “Legal Titleholder”) will retain the legal title to each Loan and its related Collateral Security, and a third party that acquires legal title from the relevant Legal Titleholder as a bona fide purchaser for value without any notice of the interests of the Issuer and the Trustee, as the case may be, might obtain a good title free of any such interest. However, the risk of third party claims obtaining priority to the interests of the Issuer or the Trustee in this way would be likely to be limited to circumstances arising from a breach by the relevant Legal Titleholder of its contractual obligations or fraud, negligence or mistake on the part of the relevant Legal Titleholder or the Issuer or their respective personnel or agents. The rights of the Issuer and the Trustee may be

or become subject to the direct rights of the Borrowers against the relevant Legal Titleholder. Such rights may include the right of a Borrower to redeem its Loan and related Collateral Security by repaying his Loan directly to the relevant Legal Titleholder. These rights may result in the Issuer receiving less monies than anticipated from the Loans.

For so long as neither the Issuer nor the Trustee has obtained legal title, each relevant Legal Titleholder will, pursuant to the terms of the Mortgage Sale Agreement, undertake for the benefit of the Issuer and the Trustee that it will lend its name to, and take such other steps as may reasonably be required by the Issuer or the Trustee in relation to, any legal proceedings in respect of the Loans originated or acquired by it and their related Collateral Security.

In order for legal title to the Mortgages over registered land in England and Wales, Northern Ireland and any land in Scotland to be transferred, transfers and assignations would have to be registered or recorded at the Land Registry of England and Wales, the Land Registry of Northern Ireland or the Registers of Scotland, as applicable, and notice would have to be given to the Borrowers.

 

 

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 Security to the Issuer will take effect in equity only or, in the case of Scottish Loans, by means of declarations of trust by PML, SPML and (as applicable) SPPL, in each case, as Legal Titleholder of the relevant Scottish Loans, in favour of the Issuer (such declarations of trust, together with any declaration of trust supplemental thereto, the “Scottish Trusts”), until

such time as transfers and assignations of such Loans and the related Collateral Security in favour of the Issuer have been completed and, in respect of the registered or registerable titles to land, registered or recorded at the Land Registry of England and Wales, the Registers of Northern Ireland or the Registers of Scotland (in the circumstances mentioned below) and notice has been served on the Borrowers. The sale of the relevant Seller’s interest in the Life Policies, if any, (as defined in “Life Policies” below) will take effect in equity only (or, as the case may be, by means of the Scottish Trusts). The Issuer will grant a first fixed equitable charge in favour of the Trustee over its interest in the Loans and the Collateral Security (or in the case of Scottish Loans, a first fixed security over its interest under the Scottish Trusts).

The Mortgage Administrator will be required under the terms of the Mortgage Administration Agreement to ensure the safe custody of title deeds in respect of the Loans and the Collateral Security as agent of the Issuer.

The Mortgage Administrator has arranged for the title deeds relating to the Loans, which it does have to be held by Iron Mountain (UK) Ltd, File and Data Storage Limited (each a “Title Deeds Holder”). Under the terms of the Mortgage Administration Agreement, the Mortgage Administrator will be obliged to notify each Title Deeds Holder to hold the title deeds in respect of the Loans and the related Collateral Security to the order of the Trustee.

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 andthe Loans and their related Collateral Security.

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.

Under the Mortgage Sale Agreement and the Deed of Charge, each of the Issuer (with the consent of the Trustee) and the Trustee will be entitled to effect such registrations and recordings and give such notices as it, acting in its absolute discretion, considers necessary to protect and perfect the interests respectively of the Issuer(as purchaser) and the Trustee (as chargee) in the Loans and the Collateral Security, inter alia, where (a) it is obliged to do so by law, by court order or by a mandatory requirement of any regulatory authority, (b) an Enforcement Notice (as defined in Condition 9(a) (Events of Default)) has been given, © the Trustee considers that the Charged Property (as defined in the Deed of Charge) or any part thereof is in jeopardy (including due to the possible insolvency of any of SPML or SPPL or PML in each case as legal titleholder of the relevant Loans) or (d) any action is taken for the winding-up, dissolution, administration or reorganisation of SPML or SPPL orPML. These rights are supported by irrevocable powers of attorney given by, among others, the Issuer, SPML,SPPL and PML.

The effect of (i) not giving notice to the Borrowers of the sale of the relevant Loans and their Collateral Security to the Issuer and the charging of the Issuer’s interest in the Loans and their Collateral Security to the Trustee and (ii) the charge of the Issuer’s rights thereto in favour of the Trustee pursuant to the Deed of Charge taking effect in equity (or extending over the Issuer’s beneficial interest) only, is that the rights of the Issuer and the Trustee may be, or may become, subject to equities as well as to the interests of third parties who perfect a legal interest prior to the Issuer or the Trustee acquiring and perfecting a legal interest (such as, in the case of English

Mortgages or Northern Irish Mortgages over unregistered land, a third party acquiring a legal interest in the relevant Mortgage without notice of the Issuer’s or the Trustee’s interests or, in the case of Mortgages over registered land or any land in Scotland (whether at the Land Registry of England and Wales, the Registers of Northern Ireland or the Registers of Scotland), a third party acquiring a legal interest by registration or recording prior to the registration or recording of the Issuer’s or the Trustee’s interests).

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. The Borrower is also entitled to set-off (or exercise any analogous rights in Scotland) any amounts owing to the relevant legal titleholder in respect of such Loan against any other amount owed by the relevant legal titleholder to such Borrower.

The risk of such equitable and other interests leading to third party claims obtaining priority to the interests of the Issuer or the Trustee in the Loans and the Collateral Security is likely to be limited to circumstances arising from a breach by the relevant legal titleholder or the Issuer of its or their contractual or other obligations or fraud or mistake on the part of the relevant legal titleholder or the Issuer or their respective officers, employees

or agents (if any).

 

 

Enforcement Procedures

The Mortgage Administrator has procedures for managing loans that are in arrears (“Enforcement Procedures”), including early contact with borrowers in order to find a solution to any financial difficulties they

may be experiencing. These same procedures, as from time to time varied in accordance with the practice of a Prudent Mortgage Lender, will continue to be applied in respect of arrears arising on the Loans in the Mortgage Pool.

The Mortgage Administrator carries out detailed daily and monthly analyses of the Mortgage Pool and arrears.

Borrowers who fail to make payments when due are contacted by the Mortgage Administrator’s collection staff by telephone and letters. This contact is maintained by reminder letters and telephone calls during the course of the next month. Depending on the results of initial contacts, the Borrower may receive multiple calls and letters

during delinquency.

Through such contact, the Mortgage Administrator will endeavour to collect the outstanding monthly payment in full. However, if the Borrower is unable to make such payment in full, the Mortgage Administrator will require the Borrower to make an immediate payment and to arrange a schedule of payments to clear the arrears

balance.

Where such contact fails, or if the Borrower does not forward the requisite payments, the Mortgage Administrator will instruct an independent debt counsellor to ascertain the reason for non-payment and obtain more details about the Borrower’s circumstances.

Once a Borrower falls 2.5 months (excluding fees) or more into arrears, the Mortgage Administrator will decide whether to instruct a solicitor and commence legal proceedings, or to delay litigation. Delays are only

sanctioned by the Mortgage Administrator when there are clear signs that a satisfactory paying arrangement will be reached shortly. If no such delay is sanctioned, the Borrower is issued with a notice giving a set number ofdays to clear all arrears or face litigation.

Repossession procedures

Once litigation becomes necessary, the Mortgage Administrator instructs solicitors from a pre-selected panel.

During litigation, the Mortgage Administrator maintains constant contact with the Borrower to arrange for payments to be made. Such contact is maintained through the Mortgage Administrator collection staff.

Where the court makes an order for repossession, the Mortgage Administrator appoints managing agents with a view to achieving a swift sale at the best price. Loans are considered to be in repossession when a court order for repossession of the underlying property has been received and the Mortgage Administrator is in possession

of such property (“Repossession Loans”). The Mortgage Administrator’s experience to date in England, Wales and Scotland suggests that it takes approximately twelve months, and in Northern Ireland fifteen months from the date of the first missed Monthly Payment to sell a property.

A court order under Section 126 of the CCA is necessary to enforce a land mortgage or heritable security securing a credit agreement to the extent that the credit agreement is regulated by the CCA or treated as such or is a regulated mortgage contract under the FSMA that would otherwise have been regulated by the CCA or treated as such.

Edited January 2, 2010 by ryde

[Suetonius]

Hi Sue,

 

Which bit would be the jest....?:D:D

 

ITBG? Spoke of 2 Jackals and I always assumed that the bad guy had you in mind as one of them. Not that I did but people will take that as a reflection of my judgment.

 

Thanks for the cultural reference I was sadly lacking in.

 

Welcome back by the way and Happy New Year, both to yourself and all. (Including genuine guests but of course not the trolls...)

 

I did post a response to the above... I must have posted it in the wrong thread sorry...

 

 

I should have read his posts more closely, I missed the referrence to two...

 

I guess ITBG? or as it is a weekend ITGG? will return shortly to explain.

 

Or at least repeatedly confirm that he does not use drugs.

[supersleuth]

Hi Ryde,

 

In your original post number 3527, your point was about the Power of Attorney which was what I responded to. The section of the prospectus you posted does not mention anything about Powers of Attorney.

 

But anyway, whilst you've posted that section, I will comment on that too. See:

 

"Neither the Issuer nor the Trustee currently intend to effect any registration at the Land Registry of England and Wales, ... 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."

 

They are declaring to you and the world that they do not INTEND to PERFECT their legal title. The perfection of a legal title is to register your legal title at the LR. Thus, when they say they do not INTEND TO PERFECT they are saying that they INTEND TO SUPPRESS AND CONCEAL THEIR LEGAL TITLE FROM THE LR.

 

The section continues:

 

"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.

Under the Mortgage Sale Agreement and the Deed of Charge, each of the Issuer (with the consent of the Trustee) and the Trustee will be entitled to effect such registrations and recordings and give such notices as it,

acting in its absolute discretion, considers necessary to protect and perfect the interests respectively of the Issuer(as purchaser) and the Trustee (as chargee) in the Loans and the Collateral Security, inter alia, where (a) it is obliged to do so by law,"

 

In this section they are declaring to you and the world that they have the legal RIGHT and are ENTITLED, AT THEIR SOLE DISCRETION, to PERFECT THEIR LEGAL INTEREST. There can be no doubt that if they have the right at their sole discretion to PERFECT their legal title at the LR, then they have ALWAYS HAD the LEGAL TITLE AND LEGAL OWNERSHIP. They have just concealed and suppressed that information from the LR. They have just decided "in their sole discretion" that they won't tell the LR.

 

But note that they also say that they will PERFECT and tell the LR if the law "obliges" them to do so. Well, guess what. They law does oblige them to do so! They are obliged under LRA 2002 s.27 and s.123 does not permit them to have "sole discretion" to suppress and conceal that information from the LR!!!

 

Note that where they use the phrase "Loans" they are talking about the loan agreements and when they talk about "Collateral Security" they are talking about the Mortgage Deed.

 

Note also, that there is no law that says you have to register a loan agreement anywhere, but the law does MANDATE that where there is the transfer of an interest in LAND i.e., the mortgage deed, the transferee MUST be registered.

 

Note also, that SPML are a "legal title holder". So they have no legal right to anything other than a contractual obligation to HOLD the LEGAL TITLE on behalf of the SPV in accordance with the Mortgage Sale Agreement. In any event, the whole concept of contracting with someone be a "legal title holder" in order to assist the legal owner (the SPV) to suppress and conceal the identity of the real legal owner is a criminal offence. Hence, SPML are accessories and complicit in the criminal offence when they assist the SPV to conceal and supress the SPV's legal title from the LR.

 

The source of this criminal offence is the abuse and fraudulent use of s.136. They say that they can hold off complying with s.27 by not giving the borrower notice in which case they fraudulently claim that the sale is only an equitable assignment. Not so. It is a legal assignment but s.136 is used to perpetrate the crime by conflating the loan agreement with the mortgage deed.

 

However, note that s.136 does not assist them in this crime because the assignment of the mortgage deed (or as they call it, the Collateral Security) is not subject to s.136. The mortgage deed is a POSSESSION IN ACTION. Thus, the assignment of the mortgage deed is the disposition of an interest in land that MUST be registered. They however, seem to believe that they have "sole discretion" as to whether or not they bother...they are above the law.

Edited January 2, 2010 by supersleuth

[ryde]

supersleuth

Really sorry think I got mixed up digesting this lot as its over 200 pages,heres the power of attorney bit.

 

"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.

Under the Mortgage Sale Agreement and the Deed of Charge, each of the Issuer (with the consent of theTrustee) and the Trustee will be entitled to effect such registrations and recordings and give such notices as it,acting in its absolute discretion, considers necessary to protect and perfect the interests respectively of the Issuer (as purchaser) and the Trustee (as chargee) in the Loans and the Collateral Security, inter alia, where (a) it is

obliged to do so by law, by court order or by a mandatory requirement of any regulatory authority, (b) an Enforcement Notice (as defined in Condition 9(a) (Events of Default)) has been given, © the Trustee considers that the Charged Property (as defined in the Deed of Charge) or any part thereof is in jeopardy (including due to the possible insolvency of any of SPML or SPPL or PML in each case as legal titleholder of the relevant Loans)

or (d) any action is taken for the winding-up, dissolution, administration or reorganisation of SPML or SPPL or PML. These rights are supported by irrevocable powers of attorney given by, among others, the Issuer, SPML,

SPPL and PML."

 

What did appear to come to light is that repossession and enforcement action is taken by the mortgage administrator which is capstone not the purported legal title holder.(spml etc)

The significance of this is that capstone have a contractural obligation to the spv not to the originator/legal titleholder as far as I am aware and to whom I am sure somewhere it states there is no recourse??

So how can capstone enforce the mortgage for the spv ,who are on paper only the equitable titleholders??

They can only enforce it for the legal titleholder?! unless there is a seperate agreement with capstone and spml and the like.

 

Lord Helpus.

 

kegi

We all know you're a spiritual type person at heart ie you like a brandy or several,would it be fair to say or a true comment that your handle/pseudonym, out of pure nosiness, is brewery based?? ie you like a keg or two as a nightcap?? (kegi multiple of keg??) or are you a gentleman of larger stature and possess a barrell like chest/waist or other such attributes, or are you in fact a brewery executive by vocation.Please excuse the curiousity,just intrigued by the name and what it conjures up mentally thats all.

Personally just add "taken for a "in front of my name.

Edited January 2, 2010 by ryde

[enoughisenough]

And in simpler terms here comes the really clever bit...

 

The now deceased originator (SPPL) and the soon to be deceased others (PML, SPML etc) have hired Capstone as their 'gun-slinger' still bringing actions in the name of the originator, NOT THE SPV, THE INVESTORS OR THEMSELVES. This is of course so that the hitherto sceptical and intelligent questioning courts can go oooh.. we have a claim brought in the name of the lender.. this all looks about right...what say we just go along with this and when the LIP gets LIPPY we'll just tell them to get stuffed. NO Locus standi challenge will stand because the feckers wont allow it as too much is riding on this.

 

However when the various originators go kapoot (As they will eventually, that is to say officially designated as having gone South) then there is a real basis for going for this. And the number of abuses that have been perpetrated by Capstone, the real fecking enemy, will finally be disclosed. Ever decreasing circles anyone?

[ryde]

Thought everyone was having a rest over the new year? is it all over already,the dreaded post doesn't start till tuesday does it ?

[brassed-off-2]

sorry to dissapoint you Ryde, but it started today...2 letters off the beloved greedy bankers.....more charges!! good start to 2010! must be trying to gather the xmas bonus for december coming..

[supersleuth]

supersleuth

Really sorry think I got mixed up digesting this lot as its over 200 pages,heres the power of attorney bit.

 

"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.

Under the Mortgage Sale Agreement and the Deed of Charge, each of the Issuer (with the consent of theTrustee) and the Trustee will be entitled to effect such registrations and recordings and give such notices as it,acting in its absolute discretion, considers necessary to protect and perfect the interests respectively of the Issuer (as purchaser) and the Trustee (as chargee) in the Loans and the Collateral Security, inter alia, where (a) it is

obliged to do so by law, by court order or by a mandatory requirement of any regulatory authority, (b) an Enforcement Notice (as defined in Condition 9(a) (Events of Default)) has been given, © the Trustee considers that the Charged Property (as defined in the Deed of Charge) or any part thereof is in jeopardy (including due to the possible insolvency of any of SPML or SPPL or PML in each case as legal titleholder of the relevant Loans)

or (d) any action is taken for the winding-up, dissolution, administration or reorganisation of SPML or SPPL or PML. These rights are supported by irrevocable powers of attorney given by, among others, the Issuer, SPML,

SPPL and PML."

 

What did appear to come to light is that repossession and enforcement action is taken by the mortgage administrator which is capstone not the purported legal title holder.(spml etc)

The significance of this is that capstone have a contractural obligation to the spv not to the originator/legal titleholder as far as I am aware and to whom I am sure somewhere it states there is no recourse??

So how can capstone enforce the mortgage for the spv ,who are on paper only the equitable titleholders??

They can only enforce it for the legal titleholder?! unless there is a seperate agreement with capstone and spml and the like.

 

Lord Helpus.

 

Lord Helpus is about right. You see how the smoke and mirrors is designed to create confusion and a perception of complexity. Add to the cocktail some criminal offences and then we need the Lord to Helpus.

 

Take away all the smoke and mirrors - apply the rule of law and there is no complexity and no confusion only clarity.

 

So let's look at what would have happened had the Originator complied with the law.

 

The Originator sold the legal (and equitable title) to the SPV. There was no separation of the equitable and legal titles, the Originator sold it lock stock and barrel. Thus, the SPV, in accordance with s.27 is obliged to register its legal title at the LR.

 

The SPV, who owns the legal title (irrespective of the fact that they have not perfected their legal title, they still own the legal title), then created an expressed trust called the TRUST DEED. The legal and equitable titles are lawfully separated within the (written) and expressed Trust Deed. Under the TRUST, the Trustee is transferred the legal title who, as trustee lawfully holds the legal title and the equitable title. He holds the legal title in his name as trustee and holds the equitable title on behalf of the beneficiaries of the trust, i.e. the investors.

 

If the rule of law had been adhered to, then there is no confusion, no complexity and no criminal offences and everyone would know where they stand. Think about it. If the SPV had complied with the law, then the SPV would be FSA regulated, they would not have got away with their extortions and abuses, and, the investors (the beneficiaries) would have their interest protected and there would have been none of the nonsence in the Perpetual case. PwC would have known exactly who owned the assets and the Lehman bankruptcy would not have affected the SPV at all. But all the crap has ensued because the SPV didn't want to be registered at the LR because they wanted to engage in tax evasion and they didn't want to be subjected to the FSA's regulatory authority (two more criminal offences). See, all this crap ensues because of criminal behaviour.

 

You would know that the SPV is shafting you, you would have been protected from the SPV's criminal offences under the FSA's MCOB rules and the FSA would have been regulating the SPV (which they don't because they too don't know who the real owner is either as the SPV's ownership is concealed from them too)

 

Now, in all these debates, we don't care about the beneficiaries at all. The fundamental point is that the Originator is NOT THE LEGAL OWNER and the Originator HAS NO LEGAL RIGHTS AGAINST YOU!

 

You have correctly underlined the material sentence. The Originator and the SPV know at the outset that they "don't intend" to register, so the SPV wants an irrevocable power of attorney from the Originator to protect its LEGAL title. They don't trust them you see (quite right) none of them are trust worthy. The SPV knows that the originator could sell the loans again to a thrid party if that third party relies on the (false) entry in the LR and is a bona fide purchaser without knowledge of the SPV. Thus, the SPV wants the irrevocable power of attorney as an extra assurance that the Originator will not exercise the perceived legal powers that it appears to have by virtue of its remaining registered at the LR.

 

If the SPV had complied with the law and perfected its legal title in accordance with s.27, then there would be no need for the IRREVOCABLE power of attorney. The only reason the document exists is because they intend to break the law and the SPV wants an assurance that the Originator won't cheat them!

 

As for your question: "So how can capstone enforce the mortgage for the spv ,who are on paper only the equitable titleholders??" - Wrong.

 

First of all Capstone are not enforcing the mortgage, the name of the Claimant is SPML (or one of them lot). Thus it is SPML who is enforcing the mortgage.

 

Second, Capstone are the ADMINISTRATOR. They are not a legal owner of the mortgage, and they do not have any equitable or beneficial title ownership in the mortgage whatsoever either. They have a contract with the SPV to administer the mortgage. As I said in my earlier post, the SPV may have given Capstone a power of attorney that authorises them at law to bring an action against you ON BEHALF OF THE SPV, in which case, the Claim form must state that Capstone are claiming in a representative capacity on behalf of the legal owner, the SPV.

 

You correctly have read that the SPV has NO RECORSE to the Originator. That's because there has been a true sale, the Originator has divested itself of all its legal rights and title and sold them to the SPV and the SPV has paid the purchase money to the Originator. Deal done! Legal title transferred to the SPV and, the SPV paid money to Originator. Transaction complete. No recourse. Note that the SPV doesn't even need to "recourse" to the Originator to "perfect" its title. It just uses its powers under the IRREVOCABLE power of attorney that the originator signed on the DATE THEY DONE THE DEAL! In the meantime, the IRREVOCABLE power of attorney only exists because of their illegal and criminal agreement that the originator will remain on the register at the LR. The whole smoke and mirrors game is necessary because of their criminal intentions and acts!

Edited January 2, 2010 by supersleuth

[ryde]

super

problem is when are the powers that be ever going to take any notice of this,alternatively how can they be forced to take any notice,I am having to ask for permission from the high court just to get disclosure and I threw every possible argument and document showing the sale of 1000's of loans at them.If I could prove this or someone in the judiciary would actually listen,in my particular situation ,they've lost.

[h8them]

How can the SPV be the legal owner, give the legal interest (also known as the legal title) to the trustee and still remain the legal owner?

 

 

The SPV, who owns the legal title (irrespective of the fact that they have not perfected their legal title, they still own the legal title), then created an expressed trust called the TRUST DEED. The legal and equitable titles are lawfully separated within the (written) and expressed Trust Deed. Under the TRUST, the Trustee is transferred the legal title who, as trustee lawfully holds the legal title and the equitable title. He holds the legal title in his name as trustee and holds the equitable title on behalf of the beneficiaries of the trust, i.e. the investors.

 

 

if the trustee holds both legal and equitable titles, what does the spv own

[osprey29]

As I am new to all this (new to this site that is, not new to SPML and Capstone unfortunately) can I just say, I think all your efforts are fantastic! Working together to try to unravel this absolute legal minefield. Lets hope that we all get a welcome boost and extra legpower by an imminent concrete announcement soon! Shame no-one knows some legal whizz or some interested reporter?

[enoughisenough]

Nothing other than the cash they got for spinning this stuff on and of course tax and regulatory immunity. Concurring with super this is simple. No transfer as required no need to state no intention or have I missed something? Ihave no intention of registering my sale of my car and neither does the new owner. What a load of bollix. We'd both be done in the event the car was used to criminal ends. Lord help us indeed.

[supersleuth]

super

problem is when are the powers that be ever going to take any notice of this,alternatively how can they be forced to take any notice,I am having to ask for permission from the high court just to get disclosure and I threw every possible argument and document showing the sale of 1000's of loans at them.If I could prove this or someone in the judiciary would actually listen,in my particular situation ,they've lost.

 

I agree with you. They don't listen. Your only hope is to keep it simple for the bozos.

 

At a permission to appeal hearing, you have to show that the lower-court made an error of law.

 

I do not know anything about your case, what your defence is, nor what the Claimant's arguements have been, but, what I do know is that....

 

One error of law is: that the denial of the disclosure constitutes a violation of Art 6(1) of the Convention on Human Rights (the Treaty). See also s.6 of the HRA 1998. And see CPR Part 31. Read the Editorial Commentary and CPR rule 31.6 and the commentary to that rule too. Also see my earlier post on this topic.

 

 

Your defence should be along that lines that the ORIGINATOR DOES NOT HAVE ANY LEGAL RIGHTS TO ASSERT AGAINST YOU BECAUSE THEY SOLD THEIR LEGAL RIGHTS AND TITLE in XX date (i.e. the date of the securitisation). Try to avoid references to the securitisation. It hurst their pea brains. We don't care about the securitisation anyway, we only care to show that the Originator DOES NOT HAVE ANY LEGAL RIGHTS OR TITLE TO ASSERT AGAINST YOU.

 

The documents that you are requesting will prove your defence in that it will prove that the Originator sold its legal rights and title (i.e. the MSA will show the mortgage was sold with full title guarantee), or they will prove the originators case, i.e. that the Originator formally separated the legal and equitable titles and sold only the equitable interest - which it will not!!!

 

The point is, If the Claimant has, as they usually do, already admitted that there has been a disposition but say, that it was only a disposition of the equitable title/interest etc., then the hotly disputed fact that is under dispute at the trial will be whether or not the Claimant sold the legal title or an equitable title. The documents are both necessary and relevant to the fundamental issue under dispute and the documents will be determinative of that factual and legal dispute.

 

Then you can go back to re-iterate the court's obligation under Art. 6 of the Convention and that it is unlawful for a court to act in a manner that is in contravention of the Convention rights.

 

I have already posted about Lord Brown Wilkinson and the House of Lords precedent. You may find that useful.

 

Also, you may have to defeat the Claimant's contention that the LR is conclusive proof of legal title i.e. s.58(1), and if so, you must argue that s.58(1) conclusive principle is disapplied by s.58(2) because there are futher registration requirements that remain to be met.

 

This point is important because it distinguishes the B****e case of Paragon which the lawyers constantly mis-quote, and misdirect the court on. Remember Paragon was reasoned on and relies on the LRA 1925. That Act has been repealed in whole and therefore the same legal arguments do not apply. The LRA 2002 was a REVOLUTION of land registration. See the Law Comm report which tells us that the law was not merely a reform but a REVOLUTION. That's parliament's and the law commissions word, not mine.

 

Also unlike Paragon, your defence is not merely that another party should be "joined" to the action, your defence is that the Claimant has no legal rights against you. The Claimant attempts to rely on the LR, but the LR is wrong, it is wrong because of the Claimant's criminal assistance to suppress and conceal the correct and accurate information from the LR, and the court should not (and cannot lawfully) assist a Claimant that relies on its own criminal conduct as the grounds of its claim.

 

You've got to be well prepared, but as a tip, don't talk about securitisation, just talk about the point being, did they or didn't they sell their legal title. If they did, then they have no legal rights and no claim to assert against you.

[brassed-off-2]

Osprey, hello and welcome

 

In the earlier posts, you will see that a few caggers have been in touch with reporters...little dottty being one that i remember, and my self with a chap from bloomberg....not sure how further LD got with her reporter...my contact was at the time actually more interested in the impending down fall of another sub primer, namely cattles!! Not sure if we have anyone at the moment who is in contact with reporters?

 

regards

b-o-2

[ryde]

All this aside there is of course the much bigger global picture to consider which few of us are aware of.Lehmans are bust with billions of pounds worth of creditors scrambling to get their money back.All the investment funds who sank money into our particular pool must be sh.tting themselves as some 2bob outfit like sppl are holding what appears to the outside world like some huge real estate portfolio.If I was an investor I'd want that safely in my grasp so no other vulture could lay claim or get their hands on it and would use any excuse available especially if it had an air of legitimacy about it ,so are sppl the first of the many,panic amongst the noteholders?Whats the latest from the american courts?

super

simple question posed is the applicant does not own the legal charge as it has been sold on and therefore cannot make an application to register the charge.,this must be made by the new owner,its that simple.

haven't even got a mortgage with them.

Edited January 2, 2010 by ryde

[h8them]

Evening all,

 

is the concensus now that the trustee and not the spv owns the legal title

 

bit of a change from before no ?

[kegi]

Evening all,

 

is the concensus now that the trustee and not the spv owns the legal title

 

depends on who you believe set up the SPV in the first place

 

 

have fun

kegi

[h8them]

goodnight guests;)

[enoughisenough]

Hello guests...