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

[peterjm]

The repeated questions are because I and probably many others simply don't understand it whereas you obviously do,I have read what you suggest and this is my conclusion.However it would be far quicker and easier if you could just explain it for everyones benefit.

 

1)The trustee owns legally and beneficially the spvs,no significance or surprise there.

2)The spv owns the beneficial title to the mortgage pool.

3)So the trustee legally owns the spv and legally as a result owns the beneficial title to the mortgage pools.

4)By legally owning the spv it doesn't mean it legally owns the mortgage pools ie legal title.

 

However this is not quite what is stated

 

"These securitisations are all ultimately legally and beneficially owned by charitable trusts.

 

The word used is securitisations.

it could be argued:

So in the case of the current legal transfers from sppl to the spvs for example it is not the spv that should be registered as the legal owner it is the trustee.There can be only one legal owner registered at the land registry out of the two.

 

The reason sppl state they have no loans as at 30/11/09 is that they were all sold to spml hence eagle paying spml instead of sppl but spml never botheredc to register itself as legal titleholder but left the title in the name of sppl,the securitisations mentioned above were effected by and through spml as can be seen from the prospectus transaction structure.

So the above applies to the current crop of transfers,THE TRUSTEE SHOULD BE REGISTERED AS LEGAL TITLEHOLDER.

 

[Suetonius]

Hello Peter, I apologise I know it must look like I am being difficult but it is just for most if this week I am away from home and have to do everything via my phone..

 

Points 1-4 pretty much spot on.. Except for the trustee owning the mortgage pool...

 

See no need for me to translate

 

The keyword (in my personal opinion) is "securitisation". Securitisation is the name of a specific financial transaction.

 

 

Each of these financial transactions have their own name, for example:

 

Eurosail xx-xx is not only the name of the spv it is also the name of that specific securitisation.

Edited September 9, 2010 by Suetonius

[Suetonius]

With regard to SPPL, it is the SPV and not the trustee...

 

I will explain when I get home...

[Suetonius]

However this is not quite what is stated

 

"These securitisations are all ultimately legally and beneficially owned by charitable trusts.

 

The word used is securitisations.

 

The keyword (in my personal opinion) is "securitisation". Securitisation is the name of a specific financial transaction.

 

 

Each of these financial transactions have their own name, for example:

 

Eurosail xx-xx is not only the name of the spv it is also the name of that specific securitisation.

 

http://www.klgates.com/newsstand/detail.aspx?publication=6594

 

Eurosail 2007-3 was a securitisation of UK non-conforming residential mortgages issued in 2007 with a face value of £650 million.* The notes were issued in five tranches, ranking from A to E in order of seniority with each tranche being divided into sub-tranches which were denominated in different currencies.*The currency mismatch between the Issuer’s sterling denominated assets and those of its notes which were denominated in US dollars or euros was dealt with by currency swaps between the Issuer and Lehman Brothers Special Financing Inc ("LBSF"). LBSF's obligations were guaranteed by Lehman Brothers Holdings Inc ("LBHI"). LBSF failed to make a payment due under the swap transactions on 15 September 2008 and LBHI failed to comply with its guarantee obligations. The swaps were subsequently terminated.

Edited September 9, 2010 by Suetonius

[Suetonius]

Therefore, the extract from the SPML accounts relates to the ownership of the transaction not of the legal title of the mortgages themselves...

 

I know it will come as a disappointment to some but can it really be read any other way or have any other meaning....

Edited September 9, 2010 by Suetonius

[Suetonius]

The repeated questions are because I and probably many others simply don't understand it whereas you obviously do,I have read what you suggest and this is my conclusion.However it would be far quicker and easier if you could just explain it for everyones benefit.

 

1)The trustee owns legally and beneficially the spvs,no significance or surprise there.

2)The spv owns the beneficial title to the mortgage pool.

3)So the trustee legally owns the spv and legally as a result owns the beneficial title to the mortgage pools.

4)By legally owning the spv it doesn't mean it legally owns the mortgage pools ie legal title.

 

However this is not quite what is stated

 

"These securitisations are all ultimately legally and beneficially owned by charitable trusts.

 

The word used is securitisations.

it could be argued:

So in the case of the current legal transfers from sppl to the spvs for example it is not the spv that should be registered as the legal owner it is the trustee.There can be only one legal owner registered at the land registry out of the two.

 

The reason sppl state they have no loans as at 30/11/09 is that they were all sold to spml hence eagle paying spml instead of sppl but spml never botheredc to register itself as legal titleholder but left the title in the name of sppl,the securitisations mentioned above were effected by and through spml as can be seen from the prospectus transaction structure.

So the above applies to the current crop of transfers,THE TRUSTEE SHOULD BE REGISTERED AS LEGAL TITLEHOLDER.

 

 

In response to points 3 and 4 and especially the last line

 

"THE TRUSTEE SHOULD BE REGISTERED AS LEGAL TITLEHOLDER."

http://www.ise.ie/debt_documents/Eurosail_7083.pdf

 

Bottom of page 9 Parent and Share Trustee

 

"The Issuer’s entire issued share capital is held by Eurosail-UK 2007-2NP 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 14 March 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 14 March 2007 (the “Charitable Share Trust”) for the benefit of certain charitable purposes."

 

The SPV following legal assignment will be the legal title holder.

Edited September 9, 2010 by Suetonius

[Suetonius]

With the greatest repect Suetonius the question was simply what was the purpose of this post if it has no significance?

 

You later stated it asked more questions than it answered?

 

It is of significance Peterjm, I appreciate with you being new here you have not had the opportunity to read all of the posts but a while ago there was a discussion in relation to the SPV's setting the interest etc. This confirms who has ultimate control of the SPV

 

I consider that asks more questions than it answers because with regard to SPML there is no real new news...

[Suetonius]

I know that the majority of the following has been posted previously but the answer to your concerns is ownership and what it means and the different types. In the end it all comes to benefit and rights... Who owns the benefits and who owns the rights and taking into consideration what the owner of the benefits actually owns and what the owner of the rights actually owns.

 

Take a look at pender with a fresh pair if eyes, read what halsbury's has to say and my previous posts about ownership and then you tell me what the answer to your question is...

 

Pender:

 

1) In my judgment Mr and Mrs Pender's case on this issue is misconceived. It is common ground that Paragon, as registered proprietor of the Legal Charge, retains legal ownership of it. One incident of its legal ownership – and an essential one at that – is the right to possession of the mortgaged property. I can see no basis upon which it can be contended that an uncompleted agreement to transfer the Legal Charge to the SPV (that is to say an agreement under which, pending completion, the SPV has no more than an equitable interest in the mortgage) can operate in law to divest Paragon of an essential incident of its legal ownership. In my judgment as a matter of principle the right to possession conferred by the Legal Charge remains exercisable by Paragon as the legal owner of the Legal Charge (i.e. as the registered proprietor of it), notwithstanding that Paragon may have transferred the beneficial ownership of the Legal Charge to the SPV.

 

And......

 

"As Dr Eilis Ferran MA (presently Reader in Corporate Law and Financial Regulation at Cambridge University) points out in a book entitled 'Mortgage Securitisation – Legal Aspects' (Butterworths, 1992) to which we were helpfully referred by Mr Ali Malek QC (for Paragon) in the course of argument, if the transfer of the mortgages is not completed by registration, the SPV acquires an equitable title to the mortgage but the transferor retains the legal title, albeit as trustee for the SPV (assuming, as will usually be the case, that the full consideration has been paid). Dr Ferran goes on to point out that, for reasons essentially of administrative convenience and cost, transfers by way of securitisation are usually left uncompleted, but with provision being made for completion in certain specified circumstances, e.g. if the transferor persistently defaults on its obligations under the securitisation arrangements. Typically, such obligations will be contained in an 'administration agreement' between the transferor and the SPV. These general observations about securitisation (for which I am indebted principally to Dr Ferran's book) are not the subject of dispute in the instant case."

 

Halsbury's

 

"586. Securitisation of mortgages.

 

Securitisation is the sale of a package of mortgage debts to a corporate vehicle (the 'issuer') established for the purpose of issuing securities usually in bearer form such as bonds1. One or more mortgagees (the 'originator') may agree to sell debts and related security to the issuer. This effects an equitable assignment of the mortgages which is not perfected by notice to the mortgagors or by registration. The issuer is entitled to call for a legal transfer of legal title to the mortgages in certain circumstances such as the persistent default or insolvency of the originator. The issuer is given an irrevocable power of attorney to effect the transfer and for certain other purposes2. The originator retains the powers of the mortgagee, including the right to possession3 but agrees to act in accordance with the instructions of the issuer in relation to matters such as interest rates and enforcement. The undertaking and assets of the issuer, including the mortgages, are in turn charged in favour of a security trustee for the benefit of the holders of notes or bonds issued by the issuer4. The security trustee is given custody of the charge certificates or, in the case of unregistered land, mortgages and title deeds, and is given an irrevocable power of attorney to effect a legal transfer of the mortgages."

 

Ownership

 

Legal and Equitable titles are derived from ownership. Ownership is the state or fact of exclusive rights and control over property, which may be an object, land/real estate or intellectual property. Ownership involves multiple rights, collectively referred to as title, which may be separated and held by different parties.

 

Title is a legal term for a bundle of rights in a piece of property in which a party may own either a legal interest or an equitable interest. The rights in the bundle may be separated and held by different parties. It may also refer to a formal document that serves as evidence of ownership. Conveyance of the document may be required in order to transfer ownership in the property to another person. Title is distinct from possession, a right that often accompanies ownership but is not necessarily sufficient to prove it. In many cases, both possession and title may be transferred independently of each other.

 

The equitable title refers to the actual enjoyment and use of a property, whereas a legal title implies actual ownership. An example of such is a trust. In a trust, one person may own the legal title, such as the trustees. Another may own the equitable title such as the beneficiary.

 

A trust is the separating of the legal (legal title) and the beneficial (equitable title) ownership of property. A trust consists of three parties:

 

 

• Settlor (the owner of both the legal and equitable title aka absolute owner)
  
• Trustee (Administor of the trust, which owns the legal title)
  
• Beneficiary (the owner of the equitable title)
  

 

In securtisation, the settlor and the trustee is usually the same party (i.e mortgage lender). Therefore, the trustee is granted the legal powers to enforce any rights in relation to the property.

 

The beneficiary is the SPV, which purchases the equitable title to the property. However, as beneficiary and the owner of the equitable title, it does not have any legal powers to enforce any rights in relation to the property.

 

Trusts have always been used as a method of limiting the exposure of assets to taxes and other legal claims as well as to specify the use of those assets in ways not otherwise recognised under the law.

In the scope of a trust, the trustee (mortgage lender) acts to protect the interests of the beneficary (SPV).

 

Therefore, when a mortgage lender instigates repossession proceedings (and the mortgage has been securitised), it is doing so as the trustee of the trust. Therefore, any actual financial loss directly to the mortgage lender is immaterial.

 

I think that Her Majesty's Revenue & Customs (HMRC) explains far simplier than I can:

 

What is a trust?

 

The law of trusts is based upon the concept of English law that property rights can be split into:

 

• the legal ownership,
  
• and the beneficial interest.
  

 

A person who is the absolute owner of property has both the legal and beneficial interest in it.

 

This means that the owner will show up as legal owner, e.g. on a land register or on a company register, and will also enjoy any benefit produced by the property.

 

The absolute owner may split the legal interest from the beneficial enjoyment. This can be done by giving the legal ownership to trustees and the beneficial interest to a named beneficiary (or beneficiaries). Alternatively the owner can retain the legal title and make himself a trustee."

 

Ownership is the determining factor

 

(remember there is only more than one trust within the uk securitisation structure)

[Suetonius]

Just a thought & in an effort to keep it simple how about the following

 

When the mortgage was originally entered into certain protections for the debtor where either expressed or implied in the original agreement but when the agreement was sold those protections diminished considerably. In other words the original creditor sold what he did not own namely the right to diminish your legal protection

 

Joncris has posted about this before and personally I think this is where people should be concentrating...

 

It is easy enough to show that in the case of SPML they breach MCOB (as previously posted by Peter)

 

MCOB 13.3.1 25/06/2010 (1) A firm must deal fairly with any customer who:

(a) is in arrears on a regulated mortgage contract1 or home purchase plan;1

(b) has a 1 sale shortfall; or1

© is otherwise in breach of a home purchase plan.

(2) A firm must put in place, and operate in accordance with, a written policy (agreed by its respective governing body) and procedures for complying with (1). Such policy and procedures must reflect the requirements of MCOB 13.3.2A R and MCOB 13.3.4A R.2

 

 

 

MCOB 13.3.2A 25/06/2010 2A firm must, when dealing with any customer in payment difficulties: (1) make reasonable efforts to reach an agreement with a customer over the method of repaying any payment shortfall or sale shortfall, in the case of the former having regard to the desirability of agreeing with the customer an alternative to taking possession of the property;

(2) liaise, if the customer makes arrangements for this, with a third party source of advice regarding the payment shortfall or sale shortfall;

(3) allow a reasonable time over which the payment shortfall or sale shortfall should be repaid, having particular regard to the need to establish, where feasible, a payment plan which is practical in terms of the circumstances of the customer;

(4) grant, unless it has good reason not to do so, a customer's request for a change to:

(a) the date on which the payment is due (providing it is within the same payment period); or

(b) the method by which payment is made;

 

and give the customer a written explanation of its reasons if it refuses the request;

(5) where no reasonable payment arrangement can be made, allow the customer to remain in possession for a reasonable period to effect a sale; and

(6) not repossess the property unless all other reasonable attempts to resolve the position have failed

 

MCOB 13.3.3A 25/06/2010 2In complying with MCOB 13.3.2A R, a firm must give a customer a reasonable period of time to consider any proposals for dealing with the payment difficulties.MCOB 13.3.4A 25/06/2010 2In complying with MCOB 13.3.2AR(6): (1) a firm must consider whether, given the individual circumstances of the customer, it is appropriate to do one or more of the following in relation to the regulated mortgage contract or home purchase plan with the agreement of the customer:

(a) extend its term; or

(b) change its type; or

© defer payment of interest due on the regulated mortgage contract or of sums due under the home purchase plan (including, in either case, on any sale shortfall); or

(d) treat the payment shortfall as if it was part of the original amount provided (but a firm must not automatically capitalise a payment shortfall); or

(e) make use of any Government forbearance initiatives in which the firm chooses to participate;

(2) a firm must give customers adequate information to understand the implications of any proposed arrangement; one approach may be to provide information on the new terms in line with the annual statement provisions.

 

MCOB 13.3.4B 25/06/2010If a customer's account has previously fallen into arrears within the past 12 months (and at that time the customer received the disclosure required by MCOB 13.4.1 R), the arrears have been cleared and the customer's account falls into arrears on a subsequent occasion a firm must either: (1) issue a further disclosure in compliance with MCOB 13.4.1 R; or

(2) provide a statement, in a durable medium, of the payments due, the actual payment shortfall, any charges incurred and the total outstanding debt excluding any charges that may be added on redemption, together with information as to the consequences, including repossession, if the payment shortfall is not cleared.

Thought I'd include this one for good measure.£85 a month for management of arrears ??

 

MCOB 12.4 Arrears charges: regulated mortgage contracts1

 

 

MCOB 12.4.1 (1) A firm must ensure that any regulated mortgage contract that it enters into does not impose, and cannot be used to impose, a charge for arrears on a customer except where that charge is a reasonable estimate of the cost of the additional administration required as a result of the customer being in arrears. 2

(2) Paragraph (1) does not prevent a firm from entering into a regulated mortgage contract with a customer under which the firm may change the rate of interest charged to the customer from a fixed or discounted rate of interest to the firm's standard variable rate if the customer goes into arrears, providing that this standard variable rate is not a rate created especially for customers in arrears.

 

and both SPML and SPPL breach the pre action protocol's....

 

http://www.justice.gov.uk/civil/procrules_fin/contents/protocols/prot_mha.htm#IDAYAOVB

5.4

 

The lender should consider a reasonable request from the borrower to change the date of regular payment (within the same payment period) or the method by which payment is made. The lender should either agree to such a request or, where it refuses such a request, it should, within a reasonable period of time, give the borrower a written explanation of its reasons for the refusal.

 

7 Alternative dispute resolution

 

7.1

 

The court takes the view that starting a possession claim is usually a last resort and that such a claim should not normally be started when a settlement is still actively being explored. Discussion between the parties may include options such as:

(1) extending the term of the mortgage;

 

(2) changing the type of a mortgage;

 

(3) deferring payment of interest due under the mortgage; or

 

(4) capitalising the arrears.

As a borrower all you have to do is write individual letters covering these points and get the usual rejection responses.

Edited September 9, 2010 by Suetonius

[Suetonius]

The debates with regard to securitisation, especially the title to sue (which is the given by the legal title), have gone on since almost when this thread was first created.. There have now been 6736 posts..

 

Out of those 6736 posts, not a single post contains any actual evidence, not even a single weblink or a single quote from a 3rd party source that supports the legal assignment of the legal title.

 

Don't get me wrong, we have had plenty of translation, interpretation and personal opinion.. We have also had countless promises of evidence.. But time and time nothing is ever produced...

 

In the cold hard light of day, I think it is fair to say that clearly speaks for itself...

[Suetonius]

Good Morning LD,

 

Have you heard anymore from them yet or are they still delaying things for you.. Hope they have finally pulled their finger out

[peterjm]

The debates with regard to securitisation, especially the title to sue (which is the given by the legal title), have gone on since almost when this thread was first created.. There have now been 6736 posts..

 

Out of those 6736 posts, not a single post contains any actual evidence, not even a single weblink or a single quote from a 3rd party source that supports the legal assignment of the legal title.

 

Don't get me wrong, we have had plenty of translation, interpretation and personal opinion.. We have also had countless promises of evidence.. But time and time nothing is ever produced...

 

In the cold hard light of day, I think it is fair to say that clearly speaks for itself...

 

Many thanks for your exhaustive and comprehensive evaluation which I am sure have all helped our current understanding.

 

The simple fact is that unless there is a section 136 notice to the borrower ,the courts and the law will only ever see any assignment as equitable,until this is challenged in an upper court successfully and s136 is given a different interpretation or it is deemed it cannot be used as an instrument of deception.(my personal opinion)

[peterjm]

An interesting article came to my attention through the "other place" it concerns capstone and the pre action protocols.

This is a link to the original article from the TREASURY SELECT COMMITEE not the "other place",so could the management please leave this post intact.

http://www.publications.parliament.uk/pa/cm200910/cmselect/cmtreasy/478/10032302.htm

Examination of Witnesses (Question Numbers 1-19)

 

MS NICOLA HUGHES, MR DOMINIC LINDLEY AND MR PETER TUTTON

23 MARCH 2010

Mr Lindley: We welcome the FSA's proposal that if a consumer has made an arrangement to pay off the arrears with a mortgage lender, then the mortgage lender will not be able to keep levying the monthly arrears charges. I think there still will be a problem for some consumers who have got variable incomes and who will not be able to agree a fixed amount upfront but would be able to agree a small fixed amount and then a variable amount depending on when they can pay a bit more. I think it is also very disappointing that right in the depths of the recession there are some lenders who have been increasing their mortgage arrears charges. Abbey increased their monthly charge from £35 to £40 a month and Capstone Mortgages, which administers the old Lehman Brothers' book, under the brands Preferred Mortgages and Southern Pacific Mortgages, has increased its monthly arrears management fee from £60 to £85.

Q9 Ms Keeble: So that has gone in the wrong direction, despite all the focus on it?

Mr Lindley: Yes, despite all the focus on it and despite the FSA saying they are conducting a review of the reasonableness of these arrears charges. We have not heard anything from them yet as to what they have actually assessed, and we have not heard anything from the companies or the trade associations as to what are the reasonable costs that these charges are supposed to cover, but it is for the lenders to justify these fees, and they have failed to do that.

----------------------------------------------------------------------------------------------------------------------------

The FSA hardened their attitude in July and addressed the above issue with the following.

MCOB 12.4.1 (1) A firm must ensure that any regulated mortgage contract that it enters into does not impose, and cannot be used to impose, a charge for arrears on a customer except where that charge is a reasonable estimate of the cost of the additional administration required as a result of the customerarrears. 2

(2) Paragraph (1) does not prevent a firm from entering into a regulated mortgage contract with a customer under which the firm may change the rate of interest charged to the customer from a fixed or discounted rate of interest to the firm's standard variable rate if the customer goes into arrears, providing that this standard variable rate is not a rate created especially for customers in arrears.

----------------------------------------------------------------------------------------------------------------------

Q19 Nick Ainger: Nicola, in your submission you say that you have done this analysis of over 450 repossession cases and in a third of those you found that the pre-action protocol had been flouted in some way. In those cases what did the judge do?

Ms Hughes: What we found—this is the same survey Peter mentioned before, so borrowers at court—is the judges failed to apply sanctions in many cases. In fact, I think they only offered sanctions in around six cases.

Q20 Nick Ainger: By "sanctions" what do you mean?

Ms Hughes: It should be something like costs; not allowing the lender to add costs to the borrower, but the protocol doesn't really allow this.

 

Q21 Nick Ainger: Did the judge kick out the repossession application?

Ms Hughes: In some cases, the hearing was adjourned.

 

Q22 Nick Ainger: On the grounds that the protocol had not been followed?

Ms Hughes: What they would have done is either adjourned the case to allow more time for negotiation if the protocol had not been followed or, perhaps, give a suspended possession order, but in many cases no real action was taken and we could not see a very clear correlation between not following the protocol and the outcomes for borrowers. I think there are two things there. First of all, it is about needing to get a more consistent practice across judges in the county courts, and the Ministry of Justice have been working on that. As Peter mentioned, the check-list should help with that consistency of practice. The other issue, though, is really that the protocol itself does not have real teeth; the sanctions in it are pretty weak. If you look at the language, for example, it is "should" not "must". If we look at Scotland, they have just introduced pre-action requirements; so it is much stronger there that the lenders have to do these things.

 

Q23 Nick Ainger: If the Mortgage Conduct of Business Rules actually do become regulation, would that address that issue?

Ms Hughes: I think that would certainly help. I think we have seen that the principles-based approach that the FSA has taken to date has not been particularly effective. The proposal which we very strongly support is to move those rules from guidance, as they currently are, into binding rules. We would like to see that happen as soon as possible and for the FSA not to get derailed by the election, or anything else, because it is really important that those changes happen soon to protect borrowers in the immediate term.

----------------------------------------------------------------------------------------------------

The FSA has now made these rules rather than guidance.

MCOB 13.3.1 25/06/2010 (1) A firm must deal fairly with any customer who:

(a) is in arrears on a regulated mortgage contract1 or home purchase plan;1

(b) has a 1 sale shortfall; or1

© is otherwise in breach of a home purchase plan.

(2) A firm must put in place, and operate in accordance with, a written policy (agreed by its respective governing body) and procedures for complying with (1). Such policy and procedures must reflect the requirements of MCOB 13.3.2A R and MCOB 13.3.4A R.2

 

 

 

MCOB 13.3.2A 25/06/2010 2A firm must, when dealing with any customer in payment difficulties: (1) make reasonable efforts to reach an agreement with a customer over the method of repaying any payment shortfall or sale shortfall, in the case of the former having regard to the desirability of agreeing with the customer an alternative to taking possession of the property;

(2) liaise, if the customer makes arrangements for this, with a third party source of advice regarding the payment shortfall or sale shortfall;

(3) allow a reasonable time over which the payment shortfall or sale shortfall should be repaid, having particular regard to the need to establish, where feasible, a payment plan which is practical in terms of the circumstances of the customer;

(4) grant, unless it has good reason not to do so, a customer's request for a change to:

(a) the date on which the payment is due (providing it is within the same payment period); or

(b) the method by which payment is made;

 

and give the customer a written explanation of its reasons if it refuses the request;

(5) where no reasonable payment arrangement can be made, allow the customer to remain in possession for a reasonable period to effect a sale; and

(6) not repossess the property unless all other reasonable attempts to resolve the position have failed

 

MCOB 13.3.3A 25/06/2010 2In complying with MCOB 13.3.2A R, a firm must give a customer25/06/2010 2In complying with MCOB 13.3.2AR(6): (1) a firm must consider whether, given the individual circumstances of the customer, it is appropriate to do one or more of the following in relation to the regulated mortgage contract or home purchase plan with the agreement of the customer:

(a) extend its term; or

(b) change its type; or

© defer payment of interest due on the regulated mortgage contract or of sums due under the home purchase plan (including, in either case, on any sale shortfall); or

(d) treat the payment shortfall as if it was part of the original amount provided (but a firm must not automatically capitalise a payment shortfall); or

(e) make use of any Government forbearance initiatives in which the firm chooses to participate;

(2) a firm must give customers adequate information to understand the implications of any proposed arrangement; one approach may be to provide information on the new terms in line with the annual statement provisions.

a reasonable period of time to consider any proposals for dealing with the payment difficulties.MCOB 13.3.4A

MCOB 13.3.4B 25/06/2010If a customer's account has previously fallen into arrears within the past 12 months (and at that time the customer received the disclosure required by MCOB 13.4.1 R), the arrears have been cleared and the customer's account falls into arrears on a subsequent occasion a firm must either: (1) issue a further disclosure in compliance with MCOB 13.4.1 R; or

(2) provide a statement, in a durable medium, of the payments due, the actual payment shortfall, any charges incurred and the total outstanding debt excluding any charges that may be added on redemption, together with information as to the consequences, including repossession, if the payment shortfall is not cleared.

-----------------------------------------------------------------------------------------------------

Edited September 11, 2010 by peterjm

[peterjm]

1~)The consequences of this as far as SPPL is concerned is that the entities to whom the loan pools are being transferred still have their original contractural agreements in place with the noteholders and capstone.

They cannot observe the preaction protocols without these agreements being broken.

This has to be mentioned in any proceedings and a sanction be requested for their non compliance.

It may even be worth attempting to question the enforceability of your contract with them as your rights should have been transferred from your sppl contract.

2)The position of regulated mortgage holders is much stronger thanks to the MCOB rules.

The same enforceability questions can be raised with added strength,the issue is that due to securitisation you have been placed into an unfair position as you have basically been denied because of the securitisation contracts the facilities in the MCOB rules and the preaction protocols,would this render a contract unfair?and unenforceable until the RAules and protocols are fully complied with,its certainly worth arguing.

[Suetonius]

The simple fact is that unless there is a section 136 notice to the borrower ,the courts and the law will only ever see any assignment as equitable,until this is challenged in an upper court successfully and s136 is given a different interpretation or it is deemed it cannot be used as an instrument of deception.(my personal opinion)

 

Both the Pender case in 2003 and more recently the Eurosail case were both held in the High Court and the subsequent Pender case in 2005 was held in the Court of Appeal and a petition to the House of Lords was refused.

 

I have seen it said that s.136 of the LOP 1925 is "outdated", "archaic" etc etc etc... However, this ignores the fact that the relevance was confirmed relatively recently by the Financial Collateral Arrangements (No.2) Regulations 2003.

 

However, as you have said until something happens to change the way things are, this is how things are.... That of course doesn't mean that something will happen to change the way things are....

 

So moving away from the hyperthetical discussions, what is happening with your dealings with capstone etc ?

 

Anything back yet from the Land Registry or the FOS ?

 

 

I did bump your thread but no response...

Edited September 11, 2010 by Suetonius

[Suetonius]

I take it citizenB that this may apply to me? Could I have my post restored or left intact,this is the post that was removed.I have now edited out all references to the site with the same initials as CAG which is not permitted. Would you be kind enough to explain in order to prevent any future involuntary transgressions of the cag rules, is this site not permitted because it has similar initials to CAG or is it not permitted because it is undesirable andl not approved of by CAG and if not why is that so as I think it may be a non commercial site and the name although similar merely describes its purpose as an action group against the subject firm ;

for example would the same rules apply to a cattles action group if one exists?

 

I am worried about my loan and need some answers hopefully,so I do not wish to see my posts removed,I have read the CAG rules but cannot see what I have done to have my posts removed,no links at all were posted. Such an explanation would go a long way to clearing the air for several people here who are beginning to become very angered by the seemingly punative unexplained editing without apparent given reason. I hope you can help here. Here is my edited post below. I have a secured loan with SPPL I have watched this thread with interest over several months as a guest never feeling the need to register.I have been driven to my wits end by the activities of yes you've guessed it,Capstone.They have started it seems their usual tactics of lost payments and consequent arrears charges,yet I have had up to this time a perfect record,logical dialogue with them is an impossibility. I feel compelled to register here as I have seen several notifications that the legal charge to my loan is about to be transferred.These notifications have then suddenly disappeared without reason or explanation from anyone which is baffling. I have learnt that my loan is about to be transferred to someone I have never heard of,what difference will this make to me?Can anyone explain if SPPL are no longer to be the owners how do I go on about making a complaint against them.? Why is there no information on this thread about this ,it has been said on other forums that spml,pml and lmc will be the next to transfer peoples loans.This is surely of major importance on a thread like this and an action group for consumers,yet everytime information is posted it disappears,can someone from the management explain whats happening here,seems almost conspiratorial as though no ones supposed to know whats happening to the most important debt in their lives. pjm

 

 

 

1~)The consequences of this as far as SPPL is concerned is that the entities to whom the loan pools are being transferred still have their original contractural agreements in place with the noteholders and capstone.

They cannot observe the preaction protocols without these agreements being broken.

This has to be mentioned in any proceedings and a sanction be requested for their non compliance.

It may even be worth attempting to question the enforceability of your contract with them as your rights should have been transferred from your sppl contract.

2)The position of regulated mortgage holders is much stronger thanks to the MCOB rules.

The same enforceability questions can be raised with added strength,the issue is that due to securitisation you have been placed into an unfair position as you have basically been denied because of the securitisation contracts the facilities in the MCOB rules and the preaction protocols,would this render a contract unfair?and unenforceable until the RAules and protocols are fully complied with,its certainly worth arguing.

 

From reading all of your posts, it appears as if you have the answers to your own questions peterjm

[Suetonius]

1~)The consequences of this as far as SPPL is concerned is that the entities to whom the loan pools are being transferred still have their original contractural agreements in place with the noteholders and capstone.

They cannot observe the preaction protocols without these agreements being broken.

This has to be mentioned in any proceedings and a sanction be requested for their non compliance.

It may even be worth attempting to question the enforceability of your contract with them as your rights should have been transferred from your sppl contract.

2)The position of regulated mortgage holders is much stronger thanks to the MCOB rules.

The same enforceability questions can be raised with added strength,the issue is that due to securitisation you have been placed into an unfair position as you have basically been denied because of the securitisation contracts the facilities in the MCOB rules and the preaction protocols,would this render a contract unfair?and unenforceable until the RAules and protocols are fully complied with,its certainly worth arguing.

 

Without wishing to sound negative I think unenforceable arguments will be a very hard fight, but as you say worth arguing.. Nothing to lose and if you don't ask, you don't get

[peterjm]

Thanks for your interest it seems its the only response!

Where is everyone have they given up?

There's ammunition here for them to develop and pursue especially with spml/pml and a lesser extent sppl with the pre-action protocols,many might have had enough and be just worn down by the relentless machine that is capstone

Still waiting to hear,no news from anyone only acknowledgements but have to go through the 8 weeks procedure with capstone.

Early days and still no notification of transfer perhaps they have put it on hold as I've complained..

[peterjm]

Without wishing to sound negative I think unenforceable arguments will be a very hard fight, but as you say worth arguing.. Nothing to lose and if you don't ask, you don't get

More arguments the better as long as they're reasonable and well argued so you're not dismissed as an idiot,you only have to win on one.

[Suetonius]

More arguments the better as long as they're reasonable and well argued so you're not dismissed as an idiot,you only have to win on one.

 

At last... someone else has seen the light:-D

 

All I would add is, only fight the fights you have a chance of winning..

Edited September 11, 2010 by Suetonius

[Suetonius]

Thanks for your interest it seems its the only response!

Where is everyone have they given up?

There's ammunition here for them to develop and pursue especially with spml/pml and a lesser extent sppl with the pre-action protocols,many might have had enough and be just worn down by the relentless machine that is capstone

Still waiting to hear,no news from anyone only acknowledgements but have to go through the 8 weeks procedure with capstone.

Early days and still no notification of transfer perhaps they have put it on hold as I've complained..

 

If you have not made a complaint to the FOS yet, when you do make sure you make it against SPPL. Otherwise they might reject your complaint (after many months) because it is against the wrong company. From what I have read, sometimes they change it for you and sometimes they don't

[eagleforms]

Can you help me please as I am confused (again!). SPPL always make it a big thing to remind me that my loan is unsecured which makes it very difficult for me to claim back their exorbitant charges. However, I thought that an unsecured loan had to be less than £25,000 but my loan was for £35,000 and secured against my house, so a second mortgage. How can this be unsecured?

[Suetonius]

Can you help me please as I am confused (again!). SPPL always make it a big thing to remind me that my loan is unsecured which makes it very difficult for me to claim back their exorbitant charges. However, I thought that an unsecured loan had to be less than £25,000 but my loan was for £35,000 and secured against my house, so a second mortgage. How can this be unsecured?

 

If it is secured against you house (via a 2nd charge) it is secured..

 

I think with your loan, it is unregulated rather than unsecured

 

However, secured or unsecured does not effect your ability to claim back late payment charges or admin fees etc

[eagleforms]

Thanks Sue,

 

I am confusing unsecured and unregulated. can a loan of £35,000 be unregulated? If it can, am I able to claim back the charges?

Edited September 11, 2010 by eagleforms

[Crapstone]

Oh the joys! Insurance time again.

 

2. The policy schedule must note the interest of Mortgage Funding 2008-1 BL as mortgagee.

 

As if! I'm not naming some unknown entity on the insurance I am paying for without proof of their interest. I haven't named them on it before and I have no intention of doing it this year either.