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

[Suetonius]

Now I am confused...

 

If the charge has been registered... I don't understand your question about what if it wasn't registered.

 

Anyway... This may shed some light on the situation

Barclays Bank v Buhr, 25 July, 2001 (Court of Appeal).

A second legal charge over unregistered land is enforceable as between the original parties even if the charge has not been registered as a class Ci land charge at the Land Charges Department.

The Court of Appeal confirmed that, as a legal principle, security in an asset will almost invariably carry through to the proceeds of an unauthorised sale of the charged property by the borrower. This principle gave the bank in this case (as second chargee) a proprietorial interest in the proceeds of the sale of the property.

The borrowers' solicitors were liable to the bank as constructive trustees because they had not applied the proceeds of sale in discharging the bank's second charge. It made no difference to their liability, or the bank's entitlement, that the charge had not been registered as a class Ci land charge. The solicitors had facilitated payment of the proceeds from their client account to unsecured creditors in the knowledge of the second chargee's interest.

[Suetonius]

The scenario of the charge not being registered, is it purely a "what if" scenario or an actual situation.

 

If it is an actual situation, can you please provide more information, such as 1st or 2nd charge etc...

 

Many Thanks

 

Sue

[Suetonius]

As for question 4

 

If notice has not been given to the borrower, the assignment is not effectual in law. It is equitable and not legal...

 

Therefore, the legal title (legal rights, including the right to sue) do not pass to the assignee until the date of that notice.

Edited December 23, 2010 by Suetonius

[peterjm]

I agree with the effect of s136 any assignment will only be equitable not legal .What I am trying to establish is that it is used solely as a device,the spv/trustee can give notification at any time and the assignment would then become legal.The sppl transfers seem to bear this out.

"It is only when the dispositions have been completed by registration that they will create a legal estate in a charge (see sections 27(1) and 58(2) of the Land Registration Act 2002)."

So hypothetically if registration for some reason was not completed no legal estate would be created,the "package" having been sold to the spv would theoretically transfer all rights to register to the spv

.a poor analogy,if i am employed to purchase a fleet of cars for clients and then sell them on without bothering about registration,the rights to registration would pass to the clients once the sale had took place to register,they would not then revert back to me and if having sold them if i tried to register in my name it would amount possibly to a fraud,am trying to get my head round this.

What also bothers me is the small print in the t and c's which states the loan and security can be sold OR assigned(thats why i ask if theres a difference between the two) to anyone without notice to the borrower,whose signature is a consent to this,so are they the borrower contracting out of being given notification ?

[andrew1]

What also bothers me is the small print in the t and c's which states the loan and security can be sold OR assigned(thats why i ask if theres a difference between the two) to anyone without notice to the borrower,whose signature is a consent to this,so are they the borrower contracting out of being given notification ?

 

I do not profess to know anything much about all this other than what has been written here, but someone told me not so long ago about the first part of your sentence is that it comes under the Unfair Terms in a consumer contracts which you might like to follow up using this undoubted analysis ability coming through on this thread. I may be wrong, but I believe it came from a legal source.

[Suetonius]

Specifically in relation to your concerns with regard to sold assigned.

 

When something is sold, it implies that a price has been paid for the item purchased (also referred to a consideration).

 

Whereas as with an assignment a consideration does not but often is paid. Of course there is also the two types of assignment to consider. It could be that only the right to repayment has been assigned.

Edited December 23, 2010 by Suetonius

[Suetonius]

A legal assignment means that any rights that the lender had to do or not do something have been passed to the assignee in this instance Eurosail or Mortgage Funding.

 

I would not get to caught up with the semantics..

[Suetonius]

Still confused though by your question in relation to the charge not being registered, considering you have said it has been registered...

[peterjm]

Thanks for the responses specifically.

This is the irksome clause in the t and c's to which the borrower consents.

" we may transfer our relationship with you for example we may sell or assign your loan (and any mortgage and other security we have for your repayments) to another business without telling you."

Is this therefore consent not to receive s136 notification,can such a right be contracturally waived by the borrower consenting to this term ?.

 

This is what the spv states:

 

Under the Mortgage Sale Agreement and the Deed of Charge, each of the Issuer(Eurosail) (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.

 

So effectively no such notice would be required if the right to receive such is contracturally waived if it hasn't or can't be the right to perfection lies in the hands of the spv indicating all rights had been sold.

[Suetonius]

No it is not consent to waive the required express notice as required by s.136. The express notice is a statutory requirement for a legal assignment....

 

In order that the assignee may obtain the benefit of the Law of Property Act 1925, express notice in writing of the assignment must be given to the debtor, trustee or other person1 from whom the assignor would have been entitled to claim the debt or the chose or thing in action2. Where there are joint debtors and covenantors, notice to one who is a bankrupt is unnecessary3. The notice need not be formal4, and need not be written with the intention that it should perform the function of giving notice5; but it must be given even though the debtor cannot read6. The assignment only operates under the Act as from the date of the notice7, that is, the date on which it is received by or on behalf of the debtor8. If the debt is released or extinguished by payment or otherwise before notice is given, there is no transfer under the Act9.

It has been held that if the date of the assignment is wrongly stated the notice is ineffectual10, though if no date is given at all the notice may be good11. It may also be ineffectual if it does not state the amount of the debt correctly12.

The Act prescribes no limit of time within which the notice must be given13, and a notice given after the death of the assignor14, or after the death of the assignee15, is effectual.

The Act does not prescribe that the notice must be given by any particular person16. Thus it may be given by the personal representatives of a deceased assignee, even though no notice has been given by him or by the original or any intermediate assignee17.

In the case of a company, notice to the manager at the works, though not communicated by him to the head office, may be sufficient18.

It is thought that where there have been two assignments of the same debt, of both of which notice has been given to the debtor, but the assignee under the second assignment, without having notice of the first, gave notice to the debtor of his assignment before notice was given of the first assignment, he will have priority19.

If a debtor has given a negotiable instrument, for example a cheque, in payment of the debt, a subsequent notice that the debt has been assigned may be disregarded by the debtor even if the creditor still holds the cheque20.

 

 

 

 

 

 

 

1 Amalgamated General Finance Co Ltd v CE Golding & Co Ltd [1964] 2 Lloyd's Rep 163 (no legal assignment because no notice to underwriters); Shaw v Applegate [1978] 1 All ER 123, [1977] 1 WLR 970, CA (equitable assignment of benefit of negative covenant became legal when notice given to covenantor). It seems that notice should be served on every person who would be a necessary party to a claim on the debt: see Josselson v Borst [1938] 1 KB 723 at 736, [1937] 3 All ER 722 at 727–728, CA, per Greer LJ, and at 740 and 732 per Slessor LJ. Notice should, accordingly, be given to all trustees: see para 53 post. In relation to a cause of action in tort see also Perry v Tendring District Council [1985] 1 EGLR 260; RL Polk & Co (Great Britain) Ltd v Edward Hill & Partners [1988] 1 EGLR 142.

2 Law of Property Act 1925 s 136(1). An assignment will be good in equity as between assignor and assignee without notice: Gorringe v Irwell India Rubber and Gutta Percha Works (1886) 34 ChD 128, CA. See further para 42 post. The suspensory character of the proviso in Gatoil Anstalt v Omennial Ltd [1980] 2 Lloyd's Rep 489 meant that the notice of assignment did not satisfy the requirements of the Law of Property Act 1925 s 136 (as amended).

3 Insolvency Act 1986 s 345(4); Josselson v Borst [1938] 1 KB 723, [1937] 3 All ER 722, CA.

4 Denney, Gasquet and Metcalfe v Conklin [1913] 3 KB 177.

5 Van Lynn Developments Ltd v Pelias Construction Co Ltd [1969] 1 QB 607, [1968] 3 All ER 824, CA.

6 Hockley and Papworth v Goldstein (1920) 90 LJKB 111 (where the debtor's inability to read was well known to all the parties, and clear oral notice was given but was ineffective).

7 Law of Property Act 1925 s 136(1).

8 Holt v Heatherfield Trust Ltd [1942] 2 KB 1, [1942] 1 All ER 404; Holwell Securities Ltd v Hughes [1973] 2 All ER 476, [1973] 1 WLR 757 (affd [1974] 1 All ER 161, [1974] 1 WLR 155, CA); and see para 21 post.

9 Lee v Magrath (1882) 10 LR Ir 313 at 319, 326, CA (where the transferor appointed the debtor her executor); Re Westerton, Public Trustee v Gray [1919] 2 Ch 104 (payment of interest to assignor of fund before notice of assignment of fund). Cf Jenkins v Jenkins [1928] 2 KB 501.

10 Stanley v English Fibres Industries Ltd (1899) 68 LJQB 839; WF Harrison & Co Ltd v Burke [1956] 2 All ER 169, [1956] 1 WLR 419, CA. It is not so in the case of an equitable assignment: Whittingstall v King (1882) 46 LT 520.

11 Van Lynn Developments Ltd v Pelias Construction Co Ltd [1969] 1 QB 607, [1968] 3 All ER 824, CA.

12 WF Harrison & Co Ltd v Burke [1956] 2 All ER 169, [1956] 1 WLR 419, CA, obiter per Denning LJ.

13 See Bateman v Hunt [1904] 2 KB 530 at 538, CA.

14 Walker v Bradford Old Bank (1884) 12 QBD 511; Re Westerton, Public Trustee v Gray [1919] 2 Ch 104.

15 Bateman v Hunt [1904] 2 KB 530, CA.

16 See Bateman v Hunt [1904] 2 KB 530 at 538, CA.

17 Bateman v Hunt [1904] 2 KB 530, CA (where the notice was given by the executor of a sub-assignee).

18 William Brandt's Sons & Co v Dunlop Rubber Co Ltd [1905] AC 454, HL (a decision on an equitable assignment).

19 See Marchant v Morton, Down & Co [1901] 2 KB 829.

20 Bence v Shearman [1898] 2 Ch 582, CA.

[Suetonius]

Similar to my point that I do not understand your question in relation to a charge not being registered, when you say the charge has been registered, I am equally confused by your post in relation to notice of assignment.

 

As I understand it, sppl borrowers were sent an express notice, the wording of which you have posted here... So an express notice as required by s.136 to comply with the statutory requirements of s.136 of the LOP 1925 has been sent....

 

Did you receive notice of the assignment of your Sppl loan ???

[Suetonius]

You seem to be asking questions about what would be the case if something (be it a charge not being registered or no express notice of assignment) did not happen, when it has happened and your own posts confirm that it has happened.

 

Most confusing Peter... Most confusing...

[Suetonius]

In closing, all I can do is repeat what I posted on the other securitisation thread...

 

10/10 for attempting to reignite the debate Peter.

 

As Wonderman and for that matter Superslueth are all too aware there are two types of assignment. Equitable & Legal.

 

To coin the phrase used above "an incomplete legal assignment" is an equitable assignment.

 

The debates in relation to this have been going on and on for getting on two years Peter. If you look through all the posts one fact will become obviously clear.

 

Not one single post quoting an external source has been made to support the arguments of Wonderman/Superslueth. Please don't misunderstand me, there are lots of posts with lots of arguments but they are all based upon personal opinion and personal interpretation.

 

A review of my posts, for which I received criticism quote a great number of different sources to support my view/argument, including academic, literal and 3rd party legal opinions.

 

Without any fresh new information or evidence to the contrary the sheer weight of evidence is undeniable.

 

As far as this argument is concerned, I will leave you to continue flogging the dead horse. Just remember, it doesn't matter how hard you flog it, no matter how much you want it to win Peter, a dead horse will never win the race.

[littledotty27]

Merry Christmas to each and everyone of you! Thank you for all the support that has been input into this thread...7000 comments and over 350,000 views. My thoughts are with the people that havn't been so lucky...god bless and take care x x

[Crapstone]

Thanks Dotty and to think you started it all! So many people, like I did, must have thought they were alone until finding this thread. Thanks to you and everyone else that has contributed. Merry Christmas to you and all! xxx

[peterjm]

Lets all hope like the favourite seasonal song "there's something in the air" its long overdue but I have the uncanny feeling the tide is just turning,so everyone hold in there at all costs,you are far from alone.Thanks to all for their comments and support and a peaceful christmas to all with fresh hope for the new year.

[jasperpad]

Hi All

 

I totally agree with Peter! BUT! I think its about time we ALL got together as one and took this pariah down. I know it will cost money but if we can, how about creating a fund (even though we are mostly broke) and when we have enough hire a barrister to carry our case and hopefully get this company taken down.

 

On this note for today I wish everyone a successful 2011.

 

 

Lets all hope like the favourite seasonal song "there's something in the air" its long overdue but I have the uncanny feeling the tide is just turning,so everyone hold in there at all costs,you are far from alone.Thanks to all for their comments and support and a peaceful christmas to all with fresh hope for the new year.

[brassed-off-2]

Hi all

 

Just looking for some info...can anyone advise how we get a suspended repo order, finished,set aside, notice of discontinuance, which court form is it??

As of today i have paid the outstanding arrears balance, and have a cancelled eviction which was due to take place , mid january with this bunch of legalised loan sharks. When i say we have no arrears, i will see what next week holds, after much to'ing and fro'ing on the phone the figure they gave in a letter at the begining of december was higher than the one given on the phone several times which was quoted as the figure upto 31st dec, when i say a cancelled eviction they rang the solicitor today...who are they trying to kid, my solicitor closed xmas eve and wont reopen until jan 4th. So i will ring the court and balliff myself on tuesday to ensure they are aware of cancelled eviction!!

As a long suffering vet on the capstone forum, i know alot of the stunts these morons pull, and have gathered some interesting facts, and am currently fighting these charges through the fos, all i will say at the moment is capstone have shot themselves in the feet a few times recently, i still maintain they have failed to follow pre action protocol on several points, this is even better when they have contradicted themselves in black and white on numerous occassions. They have not been able to give me a true, accurate figure to settle on because, they dont know what the interst on arrears figure is, which may or may not be added to the acct in jan, they are not sure if the litigation fee is going to be added or not.

In conclusion of the above as of 31st dec my arrears are clear, as of 4th jan, i will ring again and ask what my balance is...

 

All the best to everyone on here for 2011, i hope we can all keep putting the pressure on the relevant powers, and bring this joke of a company to its knees, and the sooner the better in mho.

[newstarter]

Apply on an N244 form you can download one,just google N244 fill it in and hand it in to your local county court this is what i did some time ago,if you dont do it they can apply for an eviction without a court hearing if you default on future payments,and knowing capstones they will.

[peterjm]

Well done brassed off ,a new start to the new year(no pun intended newstarter!) they have probably guessed most of the charges anyway so you should be able to catch them out big time.

Happy new year to all by the way,hopefully the times will be a changin', suggest you watch the Mail.

[applecart]

Happy New Year!!!!

 

I have read some if not most of the threads on the subject of securitisation - and I agree with Sue; essentially a lot of the debate has tended to go around and around the subject matter being 'securitisation' itself - but has not considered the real affect on consumers - or indeed the solutions that consumers may possibly rely upon to protect their homes from lenders who have effectively given the consumer a loan on the understanding that it will be repaid over a term of say 25 yrs - only to look to re-coup the original loan in a matter of months by packaging and herding a host of outstanding debt off to a SPV (created in the main by them, for them, for thier benefit); who calmly markets your loan along with others on the open market for a quick return.

 

I don't think there is any need to go on about what is securitisation etc - because I think this thread has flooged that issue to death (with respect).

 

I think what needs to happen - is that you need to now look at consumer rights - what does the Law say about this?; what does the Law say, should have been done by the Lender that was not done?, what re-course is their for the consumer, when he/she finds that his/her lender has sold the mortgage on?

 

Forgive me if I am repeating info that may have been previously posted; but my thoughts lead to consumers looking into:

 

The International Securities Lending Association - is your lender a member??

(why does their website say '"we are aware that certain firms are stating that they are approved by ISLA to make loans of money to individuals, We would like to make it clear that ISLA does not approve or endorse lending of money to individuals and these firms appear to be acting fraudulently"

Could it be, that your Lender is one of the 'certain firms' that ISLA refer to????

 

Further; as regards 'transfer', 'sale'; 'assignment' - I may be naive; but in my mind - any such action has to be administered by a lender via the High Court - after all - we are not speaking of properties that the Lenders own outright - they only have first legal charge or whatever the case may be - the house is the collateral/security! - if they have sold their 'legal charge' on - then they are supposed to let the consumer know - they are supposed to start the process by making application to the High Court in the prescribed manner - and once an order is granted - they are supposed to lodge 2 copies of that Order with the FSA - then once complete advise the consumer - after all in our terms and conditions we agree to legal process don't we? - we do not agree to what appear to be back door, underhanded practises!

 

Let's not go round in circles - lets empower consumers to move this issue forward - as has been done with issues that surrounded Bills of Sale.

 

Case Law that has gone before; is just that; gone before - not to say we can't learn from past case law - but take from it only which can move the issue forward - for instance in Pender looked it looked at 'right to sue' - it may be that if this issue had been addressed on the alternative collective legislation - the Judge would possibly have made a different conclusion in my mind - so Let's not lose heart - there is a solution - we Just have to find it : )

 

 

Apple : )

[sawyer]

Hi Brassed, Happy New Year. Don’t forget that legal fees and or solicitors cost will also be added at some point, for the cancelled eviction, just so that you are aware as now they will not be sending out regular statements.

I too am fighting the charges with the FOS as you may be aware.

2011 has got to be our year….it’s been going on far too long now!

 

Hi all

 

Just looking for some info...can anyone advise how we get a suspended repo order, finished,set aside, notice of discontinuance, which court form is it??

As of today i have paid the outstanding arrears balance, and have a cancelled eviction which was due to take place , mid january with this bunch of legalised loan sharks. When i say we have no arrears, i will see what next week holds, after much to'ing and fro'ing on the phone the figure they gave in a letter at the begining of december was higher than the one given on the phone several times which was quoted as the figure upto 31st dec, when i say a cancelled eviction they rang the solicitor today...who are they trying to kid, my solicitor closed xmas eve and wont reopen until jan 4th. So i will ring the court and balliff myself on tuesday to ensure they are aware of cancelled eviction!!

As a long suffering vet on the capstone forum, i know alot of the stunts these morons pull, and have gathered some interesting facts, and am currently fighting these charges through the fos, all i will say at the moment is capstone have shot themselves in the feet a few times recently, i still maintain they have failed to follow pre action protocol on several points, this is even better when they have contradicted themselves in black and white on numerous occassions. They have not been able to give me a true, accurate figure to settle on because, they dont know what the interst on arrears figure is, which may or may not be added to the acct in jan, they are not sure if the litigation fee is going to be added or not.

In conclusion of the above as of 31st dec my arrears are clear, as of 4th jan, i will ring again and ask what my balance is...

 

All the best to everyone on here for 2011, i hope we can all keep putting the pressure on the relevant powers, and bring this joke of a company to its knees, and the sooner the better in mho.

[brassed-off-2]

Thanks Sawyer..Yes i am well aware these fees are still to be added, which will be interesting in themselves!!!...money for nothing springs to mind, they seemed to have forgotten to take this into consideration wheni kept asking thme to clarify their settlement figure on several occassions, Transparency, could be a good word to use in future, and i will be requesting a copy of the invoice, as i have on the previous 4 occassions, as all of a sudden glenisters, who send us their letters seem to have changed their name suddenly to TLF ???.

 

Yes this year could be good for us all, especially now we have richard dyson of the mail on sunday, bringing their wrongdoings into the public eye!!! adding presure to the fos and fsa...well heres hoping anyway!!

[Crapstone]

Hi all

 

Just looking for some info...can anyone advise how we get a suspended repo order, finished,set aside, notice of discontinuance, which court form is it??

As of today i have paid the outstanding arrears balance, and have a cancelled eviction which was due to take place , mid january with this bunch of legalised loan sharks. When i say we have no arrears, i will see what next week holds, after much to'ing and fro'ing on the phone the figure they gave in a letter at the begining of december was higher than the one given on the phone several times which was quoted as the figure upto 31st dec, when i say a cancelled eviction they rang the solicitor today...who are they trying to kid, my solicitor closed xmas eve and wont reopen until jan 4th. So i will ring the court and balliff myself on tuesday to ensure they are aware of cancelled eviction!!

As a long suffering vet on the capstone forum, i know alot of the stunts these morons pull, and have gathered some interesting facts, and am currently fighting these charges through the fos, all i will say at the moment is capstone have shot themselves in the feet a few times recently, i still maintain they have failed to follow pre action protocol on several points, this is even better when they have contradicted themselves in black and white on numerous occassions. They have not been able to give me a true, accurate figure to settle on because, they dont know what the interst on arrears figure is, which may or may not be added to the acct in jan, they are not sure if the litigation fee is going to be added or not.

In conclusion of the above as of 31st dec my arrears are clear, as of 4th jan, i will ring again and ask what my balance is...

 

All the best to everyone on here for 2011, i hope we can all keep putting the pressure on the relevant powers, and bring this joke of a company to its knees, and the sooner the better in mho.

 

N244 will do it but I'd suggest you hold it against them to withdraw the order and see what they have to say first. If nothing else the next time you SAR them it wil make for more amusing reading. Get them to send you everything they have regarding your calls and to back anything they have said up in writing. Did you get their names? If you don't already have one then get a cheap printer/fax and always get THEM to fax anything over straight away such as when they say they have cancelled this or that. You can use email but when it comes to copies of letters they claim to have sent to bailiffs the courts..fax is better IMO.

 

I'm glad you're at last getting somewhere and have already been warned of their little tricks and failures on a grand scale. They just don't have a bloomin' clue on what they are supposed to be doing and it needs to stop. Give as good as you get and argue back with the beggars as they don't seem to like that very much when they are caught out in B & W.

 

Happy New Year and let's hope this will break them once and for all.

 

xxx

[Bionicbelly]

Peoples, I thought I had posted here before, but can not see my post .. so here goes (apologies if this is duplicated )

 

I have for MANY years complained to SMPL / Capstone / who ever, that their letters and statements have been incorrect, but these complaints are just ignored, ( some have been sent by recorded)

 

Before Xmas, I received no less than 4 letters all stating differing balances and alledged arrears ( in reality, I think the arrears are an accummulation of their charges due to their errors )

 

I wrote a long letter high lighting these errors - afterall If they can not keep an accurate record of my mortgage who can ? In short I have lost faith in their ability to record and report accurately. I have today received another letter stating that I have not paid sufficient funds last month by some £ 736 . In fact I had not only paid last month, I had over paid as I do most months.

 

For several years I have over paid my mortgage, to be told the arrears are increasing ????

 

I have now had enough. I can not move my mortgage because of the incorrect reference/ comments from Capstone .. so what choice do I have but to take them on

 

Now, I understand that the Ombudsman has no teeth, so where do I go get this started ? is there a group action I can join, or am I better on my own ? is there a solicitor already briefed with the antics of these clowns ?

 

Your advice appreciated.

Edited January 4, 2011 by Bionicbelly