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

[brassed-off-2]

had warrent reinforced and been given eviction date for 25 days from now....and apparently even though they have sent the mortgage interest support forms back to dwp, it means nothing to our current situation!!!

[Crapstone]

I requested statements from beginning of the mortgage and was told I would have to pay £35 per statement,for 5 yrs statements they will charge me £175. I'm still waiting for them to be sent as all I received was a quarterly statement. Utterley incompetent!

 

Have you sent tham an SAR? If the account is in dispute they should send them free of charge if action is pending. Get on to them and insist they send them. £35 does not reflect the costs involved of hitting a print button and posting the statements to you. They'll tell you anything to make you back down so don't fall for it..keep pushing.

[Crapstone]

had warrent reinforced and been given eviction date for 25 days from now....and apparently even though they have sent the mortgage interest support forms back to dwp, it means nothing to our current situation!!!

 

What, if any, legal help did you have? You really need to get some tailored advice and as a start try Community Legal Services. They'll pass you over to a specialist solictor that can help depending on your situation such as income and equity in your house, but even if you are above the threshold they can still give advice and spare a few hours helping you fill in the forms. Please don't give up !!!! I know how hard it is deal with them and how difficult it can be to find alternative housing with those ba*****s on your back and that includes the judges that must have s*** in their eyes to not see them for what they are. Guess you can tell I'm very angry right now. Did you go to court or did they just drop it through your letterbox?

[brassed-off-2]

Hi Crapstone.

Things have happened at great speed recently, lots of other issues, o/h unemployed, and my hours reduced drastically, took over 8 weeks and a hard battle with benefits help, kept capstone fully informed all the way, they are refusing to refund charges etc that make up the alledged £6.5k arrears, although their response to this was apparently sent on 2nd Dec, and again on the 10th...still waiting!! All other litigation letters have taken 2 days.. Filed complaint with fos in october, Fos said my docs that i returned on 6 dec,are not logged on system as of last monday but they do have a backlog

We qualify for legal help, and was at the solicitors yesterday, returning to the letters hand posted of court balliff...solicitors have all our files, but are just concentrating on contract and arrears at the moment, how long they will take to get back to us i dont know, they close xmas eve to 4th jan...

I need to file n244 form..but all info with sols, so not sure which way to take just now,

[jasperpad]

Hi

 

The first thing here is to download the N244 form and get that completed as best you can. Once this has been done send it to Asc?????**** by registered post.

 

You need to go to the solicitors to get copies of the documents they have or get them back until the 4th Jan and see them then.

 

from what I have read it seems you have been to court and have had a suspended possession so they don't always need to go back to court.

 

Did you manage to make any payments to them during this very worrying time? If so try to go back to court and get the court to re-suspend the possession as you are waiting for the DWP to complete their part of the forms and decide what they are going to do to help.

 

I also see that you asked for the charges to be returned, was this by letter? and if so did you set out all of the information regarding the exorbitant charges?

 

As this is also in the hands of the FOS it would seem to me that they are trying it on as there is now a dispute between you and them so they should not be trying to evict you.

 

As you already know complete the N244 form send it as soon as possible and that will give you and us time to get thing turned around and keep your home in your hands not theirs!

 

I know this will taint your Christmas but there are loads of us on here who have fought them and to date we have ALL won including me!

 

Good luck keep us informed and we can (and I do mean can) help.

 

Hi Crapstone.

Things have happened at great speed recently, lots of other issues, o/h unemployed, and my hours reduced drastically, took over 8 weeks and a hard battle with benefits help, kept capstone fully informed all the way, they are refusing to refund charges etc that make up the alledged £6.5k arrears, although their response to this was apparently sent on 2nd Dec, and again on the 10th...still waiting!! All other litigation letters have taken 2 days.. Filed complaint with fos in october, Fos said my docs that i returned on 6 dec,are not logged on system as of last monday but they do have a backlog

We qualify for legal help, and was at the solicitors yesterday, returning to the letters hand posted of court balliff...solicitors have all our files, but are just concentrating on contract and arrears at the moment, how long they will take to get back to us i dont know, they close xmas eve to 4th jan...

I need to file n244 form..but all info with sols, so not sure which way to take just now,

[citizenB]

I requested statements from beginning of the mortgage and was told I would have to pay £35 per statement,for 5 yrs statements they will charge me £175. I'm still waiting for them to be sent as all I received was a quarterly statement. Utterley incompetent!

 

 

I think if you use the Subject Access Route, then you will only need to pay £10.00

[Crapstone]

Hi Crapstone.

Things have happened at great speed recently, lots of other issues, o/h unemployed, and my hours reduced drastically, took over 8 weeks and a hard battle with benefits help, kept capstone fully informed all the way, they are refusing to refund charges etc that make up the alledged £6.5k arrears, although their response to this was apparently sent on 2nd Dec, and again on the 10th...still waiting!! All other litigation letters have taken 2 days.. Filed complaint with fos in october, Fos said my docs that i returned on 6 dec,are not logged on system as of last monday but they do have a backlog

We qualify for legal help, and was at the solicitors yesterday, returning to the letters hand posted of court balliff...solicitors have all our files, but are just concentrating on contract and arrears at the moment, how long they will take to get back to us i dont know, they close xmas eve to 4th jan...

I need to file n244 form..but all info with sols, so not sure which way to take just now,

 

I'm sorry that things haven't gone so well for you. It's horrible having to deal with so many things all at once. I'd side with Jasper and go with getting the N244 in as soon as. You have friends here and we'll do whatever it takes to help to get you through this. ((Hugs)) Kaz xxx

[jasperpad]

Hi the SAR route is the way to go! and it only costs £10.00 and they have to give everything and I mean everything they have about you including telephone calls, statements, copies of letters etc. and the best thing? they have to go right back to the beginning when you took out your loan with them!

 

george

 

I think if you use the Subject Access Route, then you will only need to pay £10.00

[peterjm]

Great stuff jasper and bang on,you are right they are trying it on,brassedoff if you can estimate your real arrears and those this lot have charged extra that would be a great help.

the simple equation is once your benefits etc are sorted out can you pay the contractural payments and using norgan can you make a contribution to the REAL ARREARS to clear them by the end of the loan term,if the answer is yes,your chances should be better than good.

[brassed-off-2]

Hi guys

Huge thanks for all the support so far...Received the long awaited reply letter, to my formal complaints, re their charges, and various other complaints..still digesting it, i note that they haven't marked it as a final response though!! I also note a couple of other things that could be useful, Like o/h dsar was never sent, because the signature didn't match the one that they hold on file, i used a n anti copy and paste security technique when we sent an authorisation letter.....the funny thing is, that the other day our solicitors clerk actually made a comment on it,as we signed the paperwork and i quote "no one will be able to copy that" Some other things look interesting, but need my files back of Sols...

N244 form is a work in progress, and will be filed Monday... We are also looking at a couple of contingency plans...

Thanks so far

will be back later!!

[Crapstone]

Lol they do try it on..My SAR differed greatly from that of my OH . When they eventually sent it after asking us to jump through hoops. Putting them both together filled in enough blanks to see that they lied and tried to cover it up.

[peterjm]

One for Suetonius if he's about.

We are writing to let you know that as of 12th November 2010, the ownership of your loan has been transferred from Southern Pacific Personal Loans ("SPPL") to EUROSAIL-UK 2007-1 NC PLC hereafter referred to as "The Owner". Capstone Mortgage Services Limited ("Capstone") will continue to service your loan.

This change in ownership does not affect your obligations under the loan agreement In any way; you should continue to make your loan repayments as and when they fall due. Your home may be repossessed if you do not keep up repayments on your loan.

As your loan is now owned by EUROSAIL-UK 2007-1 NC PLC, please find enclosed a copy of the tariff of charges that will apply in respect of your loan. This tariff and the interest rate(s) applicable to your loan are set by The Owner.

Should you have any questions concerning this communication, please contact the Capstone Customer Service teams on 0845 6013679 who will be happy to assist with your query.

Then it says for and on behalf of Eurosail.

So the notification under s136 LOP 1925 is from Eurosail not SPPL,

S136 notification which you have always promoted for there to be a legal assignment states that the notification to the borrower must be under the hand of the assignor yet it is quite clear that it is the assignee here that has notified the borrower,this can mean only one of 2 things.

a)the assignment is still equitable as it is defective in not being under the hand of the assignor

b)the assignor Eurosail had the power to give such a notice from the moment the loan was sold to them which indicates a true sale to me and then we get the whole legal/equitable land registration questions arising yet again.

As a footnote it also states in the borrowers consent signed at the back of the mortgage form that the loan and other security can be sold transferred to any other company without notice to the borrower.

[jasperpad]

Hi

 

I think I have missed something here; what exactly does this mean to Suetonius and anyone else that has had their loan sold/transferred?

 

[peterjm]

Its been a hot chesnut for a very long time jasper.The fact is simply there were 2 camps the supersleuth camp who promoted the fact that your loan had been legally sold to another company in a true sale and the Suetonius camp who believed that withour the required notification the sale could only be equitable,simply put your original lender in your case spml I think .could repo you,think I have that right.By the law this is strictly correct you have to have notification from the person who sold the loan for there to be a legal sale.This is now turned on its head by the fact that all the legal transfers of the sppl loans have been conducted by the person who was sold the loans and all notifications given by the same person,so strictly speaking the transfers are still not legal transfers unless the loans were sold as supersleuth said in the first place with the power vested in the party to whom they were sold to give the notice.ie it was a true sale.

Thats how it reads to me cannot see another answer,will clarify later.Seems supersleuth may have been right ,we will wait and see if Suetonius has an answer.

[pt2537]

Its been a hot chesnut for a very long time jasper.The fact is simply there were 2 camps the supersleuth camp who promoted the fact that your loan had been legally sold to another company in a true sale and the Suetonius camp who believed that withour the required notification the sale could only be equitable,simply put your original lender in your case spml I think .could repo you,think I have that right.By the law this is strictly correct you have to have notification from the person who sold the loan for there to be a legal sale.This is now turned on its head by the fact that all the legal transfers of the sppl loans have been conducted by the person who was sold the loans and all notifications given by the same person,so strictly speaking the transfers are still not legal transfers unless the loans were sold as supersleuth said in the first place with the power vested in the party to whom they were sold to give the notice.ie it was a true sale.

Thats how it reads to me cannot see another answer,will clarify later.Seems supersleuth may have been right ,we will wait and see if Suetonius has an answer.

Assignment law in the UK is governed by inter alia the Law of Property Act 1925 in a nutshell.

 

For an assignment to be legal and not one in equity, there must be notice of that assignment, it doesnt matter who gives notice (assignee or assignor) but what matters is notice is given.

 

I dont wish to get involved in the debate as to who is right and who is wrong, i am just correcting one point set out above

[peterjm]

pt2537 with respect sorry to disagree but this doesn't seem to be whats said in the Statute book,clearly states the assignor not the assignee.Of course all debate is welcome and the important thing is to arrive at the right answer,so your further comments are more than welcome.

 

lpa 1925

136Legal assignments of things in action

(1)Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

(a)the legal right to such debt or thing in action;

 

(b)all legal and other remedies for the same; and

 

©the power to give a good discharge for the same without the concurrence of the assignor:

 

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

 

(a)that the assignment is disputed by the assignor or any person claiming under him; or

 

(b)of any other opposing or conflicting claims to such debt or thing in action;

 

he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925.

 

(2)This section does not affect the provisions of the Policies of Assurance Act, 1867.

 

 

Further from the official receivers handbook>

31.9.29 Legal assignment of a right of action

Where the official receiver as liquidator or trustee considers it desirable, following legal advice, to execute a legal assignment of a right of action, the power to do so is under section 136(1) of the Law of Property Act 1925. Under these provisions:-

the assignment must be absolute, to prevent the possibility of claims for costs and adverse costs (see paragraph 31.9.32). It must not be by way of a charge only (Durham Brothers v Robertson [1898] 1 QB 765).

the assignment must be in writing and signed personally by the assignor (ie the official receiver as liquidator acting on behalf of the company or as trustee). Legal advice should always be sought as to the form and content of the assignment.

Edited December 22, 2010 by peterjm

[Suetonius]

In was my intention to stay away from this but....

 

pt2537 with respect sorry to disagree but this doesn't seem to be whats said in the Statute book,clearly states the assignor not the assignee.

 

 

lpa 1925

136Legal assignments of things in action

(1)Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

What does it actually say?

 

"(1)Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor,"

 

The notice of assignment is not the assignment itself Peter. The notice only makes the assignment effectual in law.

 

An agreement to assign a contract, often called a ‘Deed of assignment’ allows one party (the assignor) to transfer ownership of something they own. To be effective (effectual in law), there must be notice of the assignment to the other original contracting party (in this instance the borrower)

 

Without a notice, the assignment is equitable but is still an assignment.

 

It is my understanding that the reference to under the hand of the assignor relates to the Deed of Assignment rather than the Notice of Assignment itself.

 

Technocrats Ltd v Fredic Ltd [2004] EWHC 692 (QB)

53. "An assignment is only a legal assignment if it complies with s.136 of the 1925 Act. What that section requires is that there should be an "absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action." As I have said above, none of the assignments executed before November 2003 was signed by Mr James personally; instead they were all signed in his name by his wife with his authority. Were those assignments "under the hand of the assignor"? In my judgement, they were not. In my opinion, these words should be given their plain and ordinary meaning, and so construed, they require that the assignor himself should sign the assignment. They do not admit of the possibility of someone other than the assignor signing in the assignor's name."

Your confusion is understandable Peter, I have also previously reached the same incorrect conclusion as your goodself.

 

This book (please see reference 127)

 

http://books.google.co.uk/books?id=uLd4qy7LJJYC&lpg=PA175&ots=rP0DakPBNt&dq=Durham%20Brothers%20v%20Robertson%20%5B1898%5D&pg=PA175#v=onepage&q&f=false

 

Lists a number of cases that apparently confirm that the notice does not have to be come specifically from the assignor and that notice can be provided by the assignee, as you have stated that in this case it has with the assignee being Eurosail.

[Suetonius]

Sorry to have to be the one to shoot the argument down in flames again

[pt2537]

I think sue answered the point perfectly, i need say no more on the subject

[peterjm]

Thanks both for the info which I agree with,this is why debate is important to clarify these grey areas for the lay person.It means it can be used as a device to keep an assignment equitable rather than legal if the situation suits.Question would be if a charge was never registered so it was equitable and then assigned who would be in the position to register it,would those rights be conveyed to the assignee who would then have the power to register by informing the debtor.

[pt2537]

Nemo dat quod non habet,

 

Which means a party cannot sell more than he owns, so you can only transfer what you hold title to.

[peterjm]

Thanks Pt for that

Is there any difference between sold and assigned?

[pt2537]

no there is not, not in reality,

[Suetonius]

Question would be if a charge was never registered so it was equitable and then assigned who would be in the position to register it,would those rights be conveyed to the assignee who would then have the power to register by informing the debtor.

 

Hello Peterjm

 

You should drop ryde a pm, if memory serves me correctly he/she was in an almost identical situation as the one suggested by your question.

preferred have been tearing their hair out for 3 years trying to get their charge registered as they have no security over the property and cannot repossess it.the boyfriend has long gone with the proceeds (equity) of £40000 and the mortgage to preferred has not been paid for two and a half years my ex still lives in the property .the argument now with preferred is whether my restriction(which is now registered)prevents registration of their charge which on the face of it it does not.

 

my argument is that preferred conspired with the boyfriend to defraud me of my interest in the property by not checking the income and insisting on 2 owners so the restriction would be stepped over(no disposition by a SOLE owner in which capital money arises is to be registered)the loophole preferred exploited was to get my ex to transfer the property for nothing (no consideration that is no capital money arose on the transfer) into joint names there are then 2 owners to remortgage the property so the restriction is useless,land registry did not even tell me that it had been transferred.this shows how devious this company are.hope you understand that lot it took me 3 years to grasp it!!!!!!!thanks for the interest.

 

experimental

 

 

You will have to excuse my confusion Peterjm,

 

Thanks for that ,however I do feel isolated and out of the main stream here.

1)Have made a complaint to the Land registry re the imminent transfer of the charge as evidenced by a notice to noteholders (used the mortgagefunding 08-1 notice)

 

Have you made a complaint to the land registry about the transfer of a charge that has not been registered ?????????

 

Are you saying that SPPL did not register a charge and that your loan has now been sold to 3rd party being either mortgage funding or eurosail ?????

Edited December 22, 2010 by Suetonius

[peterjm]

1)Have you made a complaint to the land registry about the transfer of a charge that has not been registered ?????????

 

Are you saying that SPPL did not register a charge and that your loan has now been sold to 3rd party being either mortgage funding or eurosail ?????

quote Suetonius.

 

2)Answer: :no the charge has been registered

 

3)Question would be if a charge was never registered so it was equitable and then assigned who would be in the position to register it,would those rights be conveyed to the assignee who would then have the power to register by informing the debtor.

 

A different question regarding a different scenario concerning the sale of rights,rydes question involves overreaching of a beneficial interest and a restriction on the register.

 

4)So any answers to 3 which involves securitisation.?would the rights be conveyed to the spv ?this goes back to true sale promoted by wonderman and previously supersleuth,the fact that s136 was used as a device to avoid various expenses and constraints and that the sale had in reality been a covert full and legal sale with the option for the spv to register at their own discretion and perfect the legal sale.If the sale was equitable because the charge had not been registered the perfection event would be the s136 notification by the spv to the debtor proving the fact of true sale.

right or wrong?

looking at the old thread this scenario has never been raised in any situation.

Edited December 23, 2010 by peterjm