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

[Suetonius]

Sorry if I have missed it, but has it been established that it is the mortgage and not just the charge that has been transferred to Eurosail ?

[Suetonius]

 

Over to you Suetonius. (By which I mean pull this apart in the way they might!)

 

Here you go:

 

 

 

1) Difference Between America & UK securitisation

 

"21. Two of the exceptions are the consequence of US requirements. The first, which the Appellant contends is reflected in substance and in form in the structure which has been achieved, is that the assignment must be a true sale; it may not be an assignment by way of security if US accounting standards are to be respected (necessary because COBE is a wholly-owned subsidiary of a US corporation which is subject to US standards). No such requirement is imposed by UK accounting standards, nor by the FSA"

 

It would appear that in the US, securitisation has to be via a true sale. However, that is not a requirement in the UK. Therefore, if the lender retains legal title in law in the UK, securitisation has no effect on the ability of the lender to instigate legal proceedings.

 

2) Her Majesty's Revenue & Customs (HRMC)

 

Securitisation is a method of raising finance on the capital markets at advantageous rates of interest. Types of businesses likely to use securitisation are financial institutions, insurance companies, trading companies and any other type of business with a regular source of income. If these bodies borrow money from a bank the rate of interest charged will depend on their credit worthiness. Securitisation involves the transfer of their income into a separate trust. This enables money to be borrowed against the security of the income stream in such a way that, if the company goes bankrupt, the investor will still be repaid.

 

In the case of credit card securitisations, the arrangement involves the establishment of a receivables trust, often in Jersey (receivables are the payments due to the credit card company from its customers, including repayment of the principal on a loan or credit arrangement. This can also apply to interchange commission paid by the retailer).

 

"The credit card company transfers the beneficial interest (not the legal interest) in the receivables on a block of accounts to the trust. This is done in return for payment of the principal amount of credit provided plus a proportion of the interest due (known as the excess spread). A separate company is then set up to issue debt securities on to the capital markets to third party investors. The issuer contributes the funds received from investors to trust assets and later receives funds from the trust as necessary when payments of interest and repayments of principal fall due to investors. In the meantime, the credit card company uses the funds received from the investors to fund its business."

 

Her Majesty's Revenue & Customs confirm that (in relation to credit cards) it is only the beneficial interest and not the legal interest that is transfered.

 

3) Capital One tribunial

 

As mentioned above. (please see point one)

 

4) MBNA Case

 

"57. The recitals to the RSD refer to the Transferor and Receivables Trustee (MBNA and CCSE respectively) having agreed that for the purposes of facilitating a possible securitisation, the Transferor may from time to time offer to assign all Receivables (existing and future) arising on such accounts of its credit card customers as are nominated to become Designated Accounts. It is acknowledged that upon acceptance of such an offer to assign by the Receivables Trustee, the Receivables will be assigned by way of equitable assignment only unless notice of assignment should later be given. It is also expressly contemplated by the recitals that the Receivables Trustee will appoint the Operating Party for the purpose of giving instructions in relation to any available discretion capable of being exercised by the Receivables Trustee upon the terms of a separate agreement described as the "RT Operating Agreement"."

 

This particular case in the High Court, also confirms equitable assignment.

 

5) s.136 Law of Property Act 1925*

 

"136 Legal 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—"

 

s.136 means that unless a notice has been given to the debtor / borrower, the assignment can only be equitable.

 

6) s.131 Land Regisitration Act 2002

 

"131 “Proprietor in possession”

(1) For the purposes of this Act, land is in the possession of the proprietor of a registered estate in land if it is physically in his possession, or in that of a person who is entitled to be registered as the proprietor of the registered estate.

 

(2) In the case of the following relationships, land which is (or is treated as being) in the possession of the second-mentioned person is to be treated for the purposes of subsection (1) as in the possession of the first-mentioned person—

(a) landlord and tenant;

(b) mortgagor and mortgagee;

© licensor and licensee;"

(d) trustee and beneficiary

 

As legal title in law has not been transferred the relationship is still mortgagor and mortgagee. Therefore the lender is still registered.

 

7) Paragon vs Pender 2005

 

Contrary to the the information previously posted by Supersleuth, this case was not an application to appeal. The application to appeal was the case in 2003

 

Confirmation from the 2005 case:

 

3) On 5 January 1995 Paragon obtained a possession order in respect of the Property. For reasons which are not material to the present appeal the possession order was not enforced, and on 21 January 2002 (some seven years later) Mr and Mrs Pender applied to set it aside. They also sought permission to appeal against the possession order out of time. On 25 November 2003 HHJ Mayer, in the Barnet County Court, dismissed both applications. Mr and Mrs Pender applied to the High Court for permission to appeal against Judge Mayer's dismissal of the application to set aside the possession order (no appeal lay from the judge's dismissal of the application for permission to appeal against the possession order).

 

4) The application for permission to appeal against Judge Mayer's dismissal of the application to set aside the possession order was listed before Peter Smith J, with the substantive appeal to follow were permission to be granted. Peter Smith J accordingly heard full argument. In the event, by his order dated 25 November 2003 he granted limited permission to appeal but went on to dismiss the substantive appeal

 

The below are three of the judgements made in this case:

 

110. It follows, in my judgment, that Paragon, so long as it remains the registered proprietor of the Legal Charge, is a necessary party to any claim to possession of the Property in right of the Legal Charge.

 

111. The only question then is whether the SPV should have been joined in the proceedings as an additional claimant. In my judgment, the answer to that question is plainly: No. On the assumption that the consideration for the transfer of the Legal Charge has been paid in full, Paragon has since retained its legal ownership of the Legal Charge as trustee for the SPV (see Whiteley v. Delaney [1914] AC 132 at 141 per Viscount Haldane LC). But it does not follow that in that situation the SPV, as the owner of the Legal Charge in equity, is a necessary party to the claim; and on the facts of the instant case joinder of the SPV is wholly unnecessary. There is, after all, no issue between the SPV and Paragon as to the exercise of the mortgagee's rights under the Legal Charge: indeed the SPV has, by virtue of the administration agreements, expressly authorised Paragon to exercise such rights on its behalf.

 

112. In my judgment, therefore, there is no substance in the contention that the SPV should have been joined as an additional claimant in the proceedings.

 

8 ) The Publically Avaliable Documentation

 

By using google and yahoo searches we have been able to obtain copies of the presale reports and the base prospectuses. Both of which confirm that is an equitable assignment.

 

In consideration of the above legislation, case law and supporting evidence, I am of the view that the securitisation process within the UK, would not effect the ability of a lender to instigate legal proceedings.

 

Furthermore, I am not convinced the "sales agreement" would have any real effect, I say this because a contract cannot override the legal requirements of s.136 of the Law of Property Act 1925.

 

In response to the above eight points, can anyone provide one thing to show that the legal title in law has been assigned ?

 

 

 

 

*Disclaimer

 

The above is based upon the assumption that s.136 is the applicable legal process

[Suetonius]

Please please can somebody help me?... I contacted spml over a year ago now when I knew I was getting into trouble and before I missed a payment. I asked for a payment holiday or to go on an interest only till I got back on my feet........i was told they did neither and I had to go to citizens advice which I did. Altogether last year, I missed 5 payments (not consecutive) and they ook me to court last november where they got a suspended possession order as long as I paid the normal payment (£720)plus £50 off the arrears. I have done this from december to february but have found it very difficult being on my own with 2 kids so I rang them to make my payment in March and told them I would be paying the interest plus the £50 and that I would like them to look at my case and help me. No-one has called me back but I recieved a call on easter sunday asking for the shortfall.........i reiterated that I would pay the interest plus the 50 when they payment is due on the 26th April. I asked about interest only again and the person said it had been looked at but I had been declined that option because it would be classed as new lending and they were not doing any new lending!! I asked if they were going to repossess my house but I couldnt get a straight answer. I rang them back on tuesday this week and I couldnt even speak to a manager or supervisor.

I have read lots of posts on here and I am very comfused as to what people are talking about with all these forms! I need help as I am at my wits end now...........I am a strong person but feel I have been bullied by spml but I will be bullied no longer................... ...please can someone help me?

 

Hello, sounds like you have really been going through the mill.

 

We will all do everything we can to help. To start with can you confirm when you originally took out this mortgage. We need to know this to identify which rules apply.

 

Many Thanks

[Suetonius]

The first thing to do is start a thread and post a link so that everyone can help you.

 

It sounds like there are a number of seperate issues that need to be dealt with.

 

In relation to the IFA, it may be worth speaking to the Financial Services Compensation Scheme and ask them if they can do anything as they do cover mortgage advice after 31st October 2004.

 

Have you tried getting help from the Government ?

 

Worried about your mortgage

 

 

In relation to SPML and their lack of assistance..

 

It may be worth writing to them, and reminding them of their obligations that they have to you (even if your mortgage has been securitised). I would suggest sending a email to

 

Mr Tony Marek (the appointed FSA contact for complaints)

 

[email protected]

 

To turn up the heat a little I would also email your MP and make sure you let Mr Marek know TheyWorkForYou.com: Are your MPs and Peers working for you in the UK's Parliament?

 

Of course, you can also use the press. Given the current levels of coverage given to the credit crunch this might be a good idea.

 

Jeff Prestridge

Post Office PPI ruthlessness tests loyalty | This is Money

 

Tony Hetherington

Hetherington: Expensive land banking fiasco | Egg | Post Office | This is Money

 

 

I would also suggest writing to Vince Cable MP as he has a bee in his bonnet about banks at the moment.

[Suetonius]

For those that don't already know

 

Latest Published Report

 

http://www.publications.parliament.uk/pa/cm200809/cmselect/cmtreasy/416/416.pdf

 

Securitisation is reviewed

[Suetonius]

SS Can you start a separate thread where we can all discuss in full the Judgments in Pender & at the same time a detailed rebuttal

 

Your wish is my command

 

http://www.consumeractiongroup.co.uk/forum/mortgages-secured-loans/197424-mortgage-securitisation-paragon-pender.html#post2141168

[Suetonius]

but was answered as LMC so dont know if still trading or not

 

WebCHeck - Select and Access Company Information

 

Name & Registered Office:

LONDON MORTGAGE COMPANY LIMITED

ST. JOHNS PLACE

EASTON STREET

HIGH WYCOMBE

HP11 1NL

Company No. 05673094

 

Status: Active

Date of Incorporation: 12/01/2006

 

Country of Origin: United Kingdom

 

Accounting Reference Date: 30/11

Last Accounts Made Up To: 30/11/2006 (FULL)

Next Accounts Due: 30/10/2008 OVERDUE

Last Return Made Up To: 12/01/2009

Next Return Due: 09/02/2010

 

Mortgage Solutions - Lehmans still in 90 day staff consultation

 

The firm is currently in a 90 day consultation period with the staff of LMC and SPPL following a restructure in September which saw Lehmans drop the two brands.

 

Lehman crisis hits Asian bank shares in frantic fight for survival | This is Money

 

LMC was closed in late 2007, with Southern Pacific (personal loans SPPL not SPML) and Preferred Mortgages following suit in spring this year.

[Suetonius]

SBT you refer to the Pender case as has sue. - As SS has explained Pender is NOT precedent it's a summary judgment. It was an action seeking to appeal against a refusal of the lower court to allow a very old CCJ to be set -aside - The court discussed the merits of the appeal in the context if the case was heard again did it have merit & the court thought perhaps not What the court DID NOT do was form a binding judgment - However as with Rankine lenders have used it successfully to bamboozle the LiP's & I must regrettably say also the courts

 

Are you sure it was an action to seek an appeal JC and not an appeal ?

[Suetonius]

Suetonius,

 

The Pender 2003 case was a permission to appeal case - SMITH J REFUSED THEM PERMSSION.

 

The Penders obviously appealed Smith's decision and that appeal was heard by JACOBS. JACOBS granted the Penders LIMITED PERMISSION -WE HAVE NEVER SEEN THE JACOBS JUDGMENT!!!! where the Pender's were granted permission nor have we seen his reasons for granting the limited permssion.

 

The Pender 2005 case was the Appeal hearing on the LIMITED ISSUES ON WHICH JACOBS GRANTED PERMISSION TO APPEAL.

 

Suetonius - it seems that you are determined to MAKE ME WRONG - FINE - because quite frankly I'm bored of it. So here goes:

 

I have NEVER passed ANY comments on the Pender 2005 case. Therefore you cannot say I am wrong - all I have EVER said on the Pender 2005 case is that it is NOT as perfect as you seem to think it is.

 

I have passed comment on the Pender 2003 case - it IS NOT precendent - it is a summary judgment - You have indicated your knowledge on the doctrine of Stare decisis and therefore you should KNOW what that doctrine holds with respect to INTERLOCUTORY HEARINGS and SUMMARY JUDGEMENTS. Therefore, if and when the Pender 2003 case is cited -the lawyers mis-cited, mis- state the COMMON LAW and abuse the doctrine of stare decisis.

 

With respect to the 2005 case I have NEVER passed comment on the case other than to say two things. Firstly, that the 2005 case is NOT as powerful as you seem to think it is and secondly, that it may not be prudent for some people to discuss this case on an open forum.

 

Your determination to discuss this case to MAKE YOURSELF RIGHT is a luxury for you - it is a pure ACADEMIC exercise for you to pit your wits against others -BUT FOR SOME OF US - it is NOT a mere academic exercise. We are IN THE FIRING LINE with this case and WE ARE BEING SUBJECTED TO THE LAYWERS PURE ABUSE OF THIS "PRECEDENT".

 

Therefore Suetonius, please be contented with your own absolute and unadulterated confidence in your understanding of the case - and in the meantime, please desist from inferring that others "misunderstand" the case merely because they don't fall into line with your understanding of the case.

 

Suetonius, please do not take this post as being hostile - as you input is valued - if you would like to offer the benefit of your abilities, it would be helpful if:

 

1. If you could locate the JACOBS judgment and post that judgment so that we can see WHY Jacobs granted the limited permission; and

 

2. If you would kindly share YOUR analysis of the RATIO DECENDI of the 2005 CASE some of us CAGgers may find that useful and helpful.

 

Suetonius, it really would be a positive step forward if you would kindly accommodate these two requests. Hope to hear from you soon,

Supersleuth

 

As not to hijack this thread, I have answered you in part here:

 

http://www.consumeractiongroup.co.uk/forum/mortgages-secured-loans/197424-mortgage-securitisation-paragon-pender-2.html#post2143807

[Suetonius]

I have posted the above on the mortgage preferred thread, but is equally important here.

 

The above is in relation to investment products sold to Joe Public, who have subsequently made complaints to the FOS about the performance and/or any guarantees offered and not about mortgage securitisation or complaints with regard to mortgage securitisation.

 

"At the time of the Lehman Brothers collapse in September 2008, it transpired that a considerable number of UK investors had taken out plans where either a full or partial guarantee had been provided by Lehman's."

 

"In the aftermath of the Lehman's default, the Financial Ombudsman Service has received a number of complaints from investors and other parties involved in the sale of linked products. It has been investigating some cases, but the number of these is comparatively small in relation to the total numbers affected."

 

 

http://www.myfinances.co.uk/news1/investments/financial-advice/fsa-probes-structured-investments-$1294061.htm

 

"MP Edward Vaizey, shadow minister for culture, called for an investigation from FSA this week.

 

His Early Day Motion states: "This House notes that more than 6,000 people invested more than £200 million of their savings in structured products backed by Lehman Brothers; further notes that such products were marketed as 100 per cent secure by the companies that sold them."

 

United Kingdom, Banking and Financial, FSA Wider Implications Referral Lehman-Backed Structured Products - CMS Cameron McKenna LLP - 11/05/2009, Financial Services, Investment

 

"FSA has today announced that it is going to review firms' sales of Lehman backed structured products (Lehman backed products) to retail investors. This raises important issues for affected investors, for firms that sold Lehman backed products, and for the structured product market as a whole."

 

"United Kingdom investors have brought claims against the retail providers who issued Lehman backed products, and against the retail intermediaries who advised them to acquire the products. An investor may claim that he was not warned about counterparty risk, or that the adviser should have been more cautious in selecting the investment. In the first instance an investor will complain to the selling or advising firm and, if their complaint is rejected, refer the matter to the Financial Ombudsman Service (FOS) who will adjudicate the complaint (up to a ceiling of £100,000) without charge – an attractive alternative to taking court proceedings."

[Suetonius]

hi Dotty

 

I can help with this one SPPL and I think preferred are now closed. This was the info I got from suetonius. However I have been unable to elicit a reply as to what this means. Will copy and paste the relevant posts later.

 

Keep the faith. EIE.

 

*Disclaimer

 

Please note the following articles have not been written by Suetonious, so he is unable to explain what the original authors mean.

 

If anyone is looking to elicit a reply to the meaning of anything written by a 3rd party, Suetonious highly recommends that you ask the 3rd party what they mean, rather than Suetonious.

 

Lehman Brothers confirms another 200 UK job cuts - 20 February 2008

 

"Lehman Brothers has confirmed that it will be cutting a further 200 jobs across its UK mortgage capital business, affecting lenders SPML and Preferred.

 

A spokeswoman for the bank would not comment further on the future of the two brands but says that it is continuing to offer mortgages under its brands.

 

She says that Lehman Brother's UK mortgage capital business had 1000 UK employees before the recent downturn but the bank has already made 177 job cuts in November last year.

 

Last year also saw it close both SPPL and London Mortgage Company."

 

 

Mortgage Solutions - Lehman's drops SPPL and LMC

 

"Lehman's drops SPPL and LMC

 

Lehman Brothers has confirmed it is to drop its Southern Pacific Personal Loans (SPPL) and London Mortgage Company (LMC) brands as part of a global restructuring of its residential mortgage lending.

 

Jennifer Weller, head of communications at Lehman Brothers Capital Division Europe, said as part of the global changes, the company would be rescaling its operations in both the UK and the US, and closing its Korean operation.

 

While it will still continue to offer first charge mortgages through Southern Pacific Mortgages Limited and Preferred, both the SPPL and LMC brands are to be dropped. The company is withdrawing entirely from second charge mortgages in the UK for the time being, although it will continue to offer the services currently available from LMC through the remaining two brands."

 

 

 

 

[Suetonius]

LMC is now London Personal Loans because that's the company on my court eviction notice, but the solicitor at the CAB dosn't see anything wrong with that.

Had contact with him but he can't represent me in court, he thinks the DJ will accept that the details on the Land Registry is legal and that SPML is the registered owner of the mortgage. He cannot see why it would make any difference to the claim that my mortgage is with SPML/LMC and the claimant is now SPML/LPL.

He dosen't understand the info I sent him on securitisation and could not rely on the information in court because its out of his sphere of the law, I need a contract lawyer. He think that SMPL/LPL can evict me even though my mortgage is with LMC because they are all trading names of SPML.

I suggested challenging the eviction under Unfair Relationship legislation but he was more concerned with the arrears on my mortgage and how I will repay the debt.

The Consumer Credit Act 1974 - Unfair Relationships

 

See Unfair relationships - Enforcement action under Part 8 of the Enterprise Act 2002 .

 

 

What would help you is to find out how things went with Superslueth.

 

If she won her case, you can use the same arguments and points (if applicable). If she didn't win, we will at least get an understanding of the arguments used by the lender so that these can be debated and overcome.

 

Has anyone heard from her ?

 

I see she is still logging into CAG but has not posted anything in the last couple of weeks.

[Suetonius]

And it identified terms in securitisation covenants which could lead to inequitable treatment of borrowers in arrears, by restricting the scope for the lender to exercise flexibility and forbearance, for example by prohibiting an extension of the loan term, or conversion to interest only for a period.

 

If you read some of JonCris's earlier posts, you will see this is exactly what he has been saying. In one of my previous posts (I will find it later), I quoted an extract from one prospectus that confirms that the lender is not at liberty to freely make changes once a mortgage has been securitised, without first paying back the SPV.

 

(this is a seperate argument to the title to sue)

[Suetonius]

lightfoots. I need this information as main partner e.mailed me with details of my objections to them selling my home, plus leaving my home unsecured and items missing and blamed me for not removing them before eviction. Estate agents also need to be questioned, he was putting people off buying the house. Have witness, who put in offer. Ive been told I cant complain, house did not belong to me anymore.......

 

Agatha c

 

Hello Agatha,

 

You can complain to the FOS about this.

 

 

• If your mortgage commenced on or after 31st October 2004
  

 

FSA Handbook - Full Handbook

MCOB 13.6 Repossessions

 

MCOB 13.6.1

 

A firm must ensure that, whenever a property is repossessed (whether voluntarily or through legal action) and it administers the regulated mortgage contract or home purchase plan in respect of that property, steps are taken to:

 

(1) market the property for sale as soon as possible; and

 

(2) obtain the best price that might reasonably be paid, taking account of factors such as market conditions as well as the continuing increase in the amount owed by the customer

 

• If your mortgage commenced before 31st October 2004, thus not regulated:
  

 

Handling of Arrears and Possessions

CML Statement of Practice January 1997

 

Sale of Properties in Possession

18. When selling properties which have been taken into possession lenders are under a duty to obtain the best price reasonably obtainable. A lender is not bound to postpone the sale in the hope of obtaining a better price at some future date; however, the lender should allow sufficient time to permit, for example, proper advertising so that the best price obtainable may be achieved. Mortgage lenders generally use the following administrative procedures for selling properties which have been taken into possession:

 

Administration

(a) The sale may be dealt with either via a lender's in-house department or through a separate property management company employed by the mortgage lender. Dedicated staff are responsible for coordinating the sale of properties in possession which will include reviewing the offers received from potential purchasers as well as monitoring the condition of these properties and their valuation.

 

Valuation

(b) A valuation of the property is obtained from either one or two qualified surveyors and another from the appointed estate agent. Prices are usually reviewed every three to four months and more often when the circumstances justify a revaluation.

 

Estate Agents

© Properties are usually marketed through an estate agent in the immediate locality of the property being sold. Agents may advertise properties in the local press, with such advertisements being repeated as and when necessary. Mail shots and national advertising may also be carried out in some cases. In general, lenders do not market these properties as "repossessed properties"; in many cases estate agents are specifically instructed not to do so.

 

Report on Activity

(d) Estate agents are usually required to report on activity every four to six weeks if a property remains unsold. The estate agent will notify a mortgage lender of any offers received. Only when satisfied that the best price has been obtained, would the estate agent recommend this offer for acceptance. If the offer is substantially below the asking price, the agent must provide supporting evidence to suggest that this would be the best offer obtained. In practice, all offers are accepted or declined promptly. Where there are a number of very close offers on a property, a sealed bid procedure may be carried out whereby the person putting forward the best offer would be the successful purchaser.

 

Visits to the Property

(e) The agent will usually visit the property on a regular basis and ensure that any repairs and maintenance to the property are carried out and that the property is secure. When properties are first put up for sale, mortgage lenders will usually arrange that essential repairs, cleaning and tidying of the garden are carried out. Whilst the estate agent will take care of minor repairs which are identified on the regular visits, other repairs usually require the approval of the mortgage lender. Where this work is carried out, estate agents will be required to obtain competitive estimates. Prospective purchasers will normally be accompanied by the agent when viewing a property.

 

Auction

(f) Properties in possession may be sold via auction. These properties are reviewed relative to sales experience and the length of time on the market. There are occasions when properties may be sold by auction because either the auction is specifically targeted at the type of property in question, eg a period type of residence, or the property will generally appeal to the speculator market because of its condition. Such properties are referred to an appropriate auctioneer. A catalogue would be issued and the properties are available for viewing. A reserve price is usually based on information relating to the number of viewings and general level of interest. A reserve price is set several days before the auction following consultation with a surveyor on the valuation of the property.

 

Proceeds of Sale

19. Following the sale of a property in possession, the proceeds of sale will be applied in the following way. First the lender will use the funds to meet the costs incurred in selling the property and to repay the outstanding mortgage including interest. If there are subsequent loans secured against the property any surplus will also be applied to repay these loans prior to any amounts being paid to the borrower. If there are insufficient proceeds of sale to repay the mortgage, the borrower will remain liable to repay any outstanding debt.

Edited June 25, 2009 by Suetonius
Thanks Capstone

[Suetonius]

Thank you

[Suetonius]

Again because Sues arguments are based on equity when the 'facts' scream otherwise. To all intense purposes & other practical considerations securitization IS a sale. They hide this behind a contract which even admits their clear intention to commit an offence by NOT registering to conceal their interest. If there is no sale as they claim why even need to mention NOT regsitering the sale......... according to them there's no sale so why bother ........the only logical reason is that it is a sale nothing else makes sense

 

 

Hello JC, what would these specific 'facts' be that scream otherwise. Is there a single fact that proves that the legal title has been legally assigned. I am honestly not being sarcastic. I would really like to know.

 

I don't think anyone claims that a sale has not taken place. If I have previously posted or even suggested that a sale has not taken place, I would like to take this opportunity to apologise to everyone.

 

Contrary to some posting's my argument is not that a sale that has not taken place. It is specifically in relation to what has been sold.

 

I contend that it is the equitable title and not the legal title that has been sold.

Edited July 18, 2009 by Suetonius

[Suetonius]

I wonder if people would be willing to express their views on this:

 

Even if the sale document / deed says in direct contradiction to both the presale reports and prospectuses that the legal title is sold (assigned), would this document overide the applicable legislation with regard to legal assignment ?

 

How could a contract between two companies overide:

 

Law of Property Act 1925

The Financial Collateral Arrangements (No.2) Regulations 2003

[Suetonius]

Sue's arguments are based on the concept of equitable assignment which to my eye is an altogether more complex argument.

supersleuth had the measure of these though.

 

I still think it boils down to this. The argument is so watertight that they conceal and then deny, deny, deny... As their lehman bosses might have said what gives?

 

Even Superslueth conceded that

 

Hi Suetonius,

 

I agree with you that the assignment is either an equitable assignment or it is a legal assignment. It is one or the other.

 

However, she went on to say

 

There is one way to prove beyond all reasonable doubt is whether the assignment was equitable or legal. That is to produce the sale/purchase agreement between the SPV and the lender. The lenders WILL NEVER allow those documents to be produced in court. WHY, because it will PROVE that the assingment was a transfer of the legal title and not a transfer of an equitable title.

 

I disagree, the way to prove beyond all reasonable doubt whether the assignment was equitable or legal is to produce a copy of the Notice of Assignment as required by law for a legal assignment to take place.

 

In my view, if there is not a Notice of Assignment, than the assigment can only be legally equitable ?

 

Would anyone disagree with my view, if so, please explain why and how.

 

Kind Regards

 

Sue

[Suetonius]

you are entitled to see the sale agreement (Lord Denning MR) if there is a absolute assignment so id say that it is worth demanding the sale agreement in any event to see what the terms are

 

Hello PT,

 

Would you agree or disagree that the content of the sale agreement (deed), would not have an effect on the requirement of a Notice of Assignment to make an assignment legal rather than equitable ?

 

As you have posted yourself, even Halsbury states:

 

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.

 

 

1 See companies; financial services and institutions.

2 See the Powers of Attorney Act 1971 s 4; and agency vol 1 (2008 para 175.

3 See Paragon Finance plc v Pender [2005] EWCA Civ 760, [2005] All ER (D) 307 (Jun).

4 The charge takes effect as an equitable sub-charge.

 

 

Ok this is what halsburys says on securitisation

 

there are hundreds of pages of info and i must admit im not entirely sure i know what im looking for, but if i post anything which helps then let me knw and i will go get the full articles

 

For those not familiar with Halsbury, here is a link: http://en.wikipedia.org/wiki/Halsbury%27s_Laws_of_England

Edited July 18, 2009 by Suetonius

[Suetonius]

Shouldn't the equitable 3rd party be involved in any court proceedings merely on their interest in the property or some mention of it made by the administrators that they have been informed?

 

Hello Crapstone, I do see where your coming from.

 

However, in the Court of Appeal it was stated:

 

111. The only question then is whether the SPV should have been joined in the proceedings as an additional claimant. In my judgment, the answer to that question is plainly: No. On the assumption that the consideration for the transfer of the Legal Charge has been paid in full, Paragon has since retained its legal ownership of the Legal Charge as trustee for the SPV (see Whiteley v. Delaney [1914] AC 132 at 141 per Viscount Haldane LC). But it does not follow that in that situation the SPV, as the owner of the Legal Charge in equity, is a necessary party to the claim; and on the facts of the instant case joinder of the SPV is wholly unnecessary. There is, after all, no issue between the SPV and Paragon as to the exercise of the mortgagee's rights under the Legal Charge: indeed the SPV has, by virtue of the administration agreements, expressly authorised Paragon to exercise such rights on its behalf.

[Suetonius]

I thought you'd come back with that Sue, but any thoughts on the insurance aspect?

 

Sedit qui timuit ne non succederet. Aut viam inveniam aut faciam.

 

To succeed none of us can just sit still. If there isn't yet away to get past these problems then we will have to make one. However, first we must fully understand the question, before we can find the answer.

 

In all honestly with regards to the insurance, I don't know. However, I do not think that this could be accepted as a Notice of Assignment due to the terminology of the agreement or subsequents letters.

 

I can only presume (as in guess), that it may be similar to the assignment of Endowment policies in years gone by. After all this only further confirms the beneficial interest (to the money) rather than legal ownership of the legal title of the actual mortgage. However, as I say.. I don't know on this one..

[Suetonius]

However, if you dig deeper with regard to what happens when the payment is made as a result of any insurance claim.. You might stumble upon something interesting

[Suetonius]

You can't prove a negative. This seems to be the problem. The SFO should conduct a raid of the trusts and find this stuff if it hasn't been shredded and eaten.

 

Sue are you willing to concede that it's possible the assignment was legal not equitable, as in the US, or are you 100% confident that every single securitisation is an equitable assignment?

 

Good Morning EIE, I see you have been a busy boy this morning.

 

Of course I would be willing to concede that it is possible. I would be very foolish to claim otherwise. However, as yet I have not seen anyone to suggest that this is the case.

 

As far as I am aware, no one (if anyone has, please say and post a copy) has received a notice of assignment. The presale reports confirm that it the equitable title that is being acquired. The prospectus even confirms that a notice will not be sent to the borrower, thus further confirming equitable assignment.

 

My argument is very simple and straight forward:

 

It is a point of law that a Notice of Assignment is required for a legal assignment.

 

No Notice of Assignment can only mean that the assignment was equitable.

[Suetonius]

In life, I have only found two things that were impossible.

 

1) Put your right elbow, in your left hand. Then try to lift your elbow out with your right hand.

2) A woman walking past a shoe shop without going in.

 

Therefore, I consider anything else possible

 

 

*THE ABOVE IS A JOKE

Edited July 19, 2009 by Suetonius
To stop anyone getting on their high horse

[Suetonius]

You can't prove a negative. This seems to be the problem. The SFO should conduct a raid of the trusts and find this stuff if it hasn't been shredded and eaten.

 

Sue are you willing to concede that it's possible the assignment was legal not equitable, as in the US, or are you 100% confident that every single securitisation is an equitable assignment?

 

To put doubt in my mind, someone would have to explain how an assignment can be legal and not equitable without a Notice of Assignment.

 

Can anyone do that ?