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

[Suetonius]

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.

 

Is this not in direct contravention of fsa rules where an unregulated entity plays an active direct part in a regulated activity?

 

In direct response to your question, no not really....

 

The following confirmation is provided by the treasury

http://archive.treasury.gov.uk/docs/2001/mortgage_response.html

 

And subsequently further confirmed by the implementation of the RAO

 

 

Securitisation

 

15. Most responses agreed with the Government’s view that securitisation should not be compromised by mortgage regulation. However, they suggested that the concept and definition of a rights holder did not meet the Government’s policy of having, at any one time, each mortgage linked to only one FSA authorised firm with mortgage permission. This is because trustees of special purpose vehicles (SPVs) were entitled to take all or most of the key decisions with respect to enforcement and operation of the mortgage loan and meant that the SPV would need FSA authorisation.

 

16. In the light of these concerns, the Government sought to clarify the position with the industry in order to consider how it could meet its policy whilst not compromising the securitisation market.

 

17. In the light of these discussions, the construction of the RAO was changed. It no longer relies upon the exercise of rights by a rights holder as a regulated activity. Instead, the RAO focuses on administering the mortgage, and this will be a regulated activity, in addition to ‘entering into a regulated mortgage contract as lender’. The RAO defines administration as notifying the borrower of changes in interest rates or payments due under the contract, or of other matters of which the contract requires, and taking necessary steps to collect or recover payments.

 

18. The RAO also deals with the extreme circumstances where an administrator, working under contract to a SPV lost its authorisation or went into liquidation. In such circumstances, the SPV could not be authorised to carry on regulated mortgage business as it neither enters into regulated mortgage contracts, nor administers them, and to do either would be a criminal offence. It was also important to take account of the fact that a number of firms could be sub-contracted to do different administration activities and the Government wanted to ensure that only one person was responsible and had permission from FSA to carry on that regulated activity.

 

19. The Government therefore has put in two exclusions to take account of these circumstances. Firstly, arranging administration by an authorised person is not an authorisable activity, and secondly, a person who administers the mortgage contract under contract from an authorised person would not need to be an authorised.

[Suetonius]

I am not sure if anyone would dispute that being the legal title holder the original lender (pre-notification) is in the eyes of the law (or rule of law, if you prefer) is the owner

 

To enable me to fully respond, can someone please clarify one point for me.

 

s.123 of the LRA 2002 says:

 

123 Suppression of information

 

(1)A person commits an offence if in the course of proceedings relating to registration under this Act he suppresses information with the intention of—

(a)concealing a person’s right or claim, or

(b)substantiating a false claim.

 

Under s.123 there are only two possible offences.

 

In the course of proceedings relating to the under this act relating to registration under this act (I consider the wording to be very importantant - "proceedings relating to registration")

 

1) he suppresses information with the intention of concealing a person’s right or claim

2) he suppresses information with the intention substantiating a false claim.

 

This begs a number of questions

 

a) Can respossession hearings be determined to be proceedings relating to registration under the LRA 2002.

b) As a borrower, what specific right or what specific claim (bearing in mind that any right or claim would be against the legal title holder) has been concealed.

c) What false claim has been substantiated.

 

If they answer to a) is no, then no offence has been committed. However, if the answer to a) is yes we have to look at b) and c).

 

So to enable me to respond can someone please clarify for me what specific right or specific claim as a borrower has been concealed or what false claim has been substantiated.

 

Therefore, the question is still

 

what right or claim has been concealled

[Suetonius]

These loans were sold to the spv in a true sale but for the fact the spv used its prerogative which it could only do by being the true owner, not to register simply by intentionally not informing the borrower,its benefits by not doing so were preserved yet in all respects it was the true owner of the loan able to set interest rates avoid regulation etc etc.

the right that was concealeed was the spvs true ownership,thats how it reads to me.

 

With regard to "true sale"

 

True Sale

 

'Courts in the U.S. and UK view true sales and asset isolation differently'

 

A sale is a sale – except when it’s a loan. 'Lehman Brother's' repo 105, General Growth Properties, and Extended Stay America’s Chapter 11 cases all touch on the complicated issue of sales verses loans and asset isolation. The controversy swirling around Repo 105 is a result of the complex interplay of U.S. case law around repo agreements, true sales opinions, elaborate securitisation structures and accounting rules. Off-balance sheet transactions are currently of particular importance because markets are recovering and any regulatory or opinion practice changes should, ideally, be in place first.

 

Courts in the U.S. and UK view true sales and asset isolation differently – and both of these concepts are central to securitisation structures and repo agreements. Repo 105 highlights the intersection of cross-border deal structures and true sales opinions that are apparently pushing the limits of U.S. accounting standards. The recent questions posed by Lehman Brother’s bankruptcy examiner could factor in future legal, accounting, and disclosure of off-balance sheet transactions.

 

The potential glitch in securitisations and repo agreements is when is a "sale" not a sale, but instead a financing or charge. A repo is a form of short-term financing where the borrower agrees to sell a security to a lender and to buy the security (or equivalent security) back from the lender at a fixed price at some later date. Under the U.S. Statement Financial Accounting Standards 140 (SFAS 140), balance sheet de-recognition requires the transferor to surrender control of an asset. To have surrendered control under SFAS 140, a sale which isolates the transferor from the assets must take place – in other words, a “true sale”.

 

True sales are viewed differently under U.S. and UK law. It basically comes down to substance verses form. In Major’s Furniture Mart, Inc. v. Castle Credit Corporation, Inc., the Third Circuit ruled that a purported sale of furniture receivables was actually a secured loan. The court cited Kelter, Tr. v. American Bankers' Finance Co, which stated, "Courts will not be controlled by the nomenclature the parties apply to their relationship." The appellant court further stated, “The question for the court then is whether the Nature of the recourse and the true nature of the transaction are such that the legal rights and economic consequences of the agreement bear a greater similarity to a financing transaction or to a sale." In the U.S., courts apparently know a sale when they see one and law firms are often leery of offering true sale letters under U.S. law.

 

UK courts, on the other hand, view true sales in a different light. In Welsh Development Agency v Export Finance Co Ltd, a case centering on receivables of floppy disks the Appeals Court overruled a lower court’s finding that the purported sales agreements were charges because:

 

“There was no clear touchstone by which it could be said that a document which was not a sham and was expressed as an agreement for sale must as a matter of law amount to no more than the creation of a mortgage or charge on the property expressed to be sold. Looking at the provisions in the master agreement as a whole, it was valid as what it purported to be, namely an agreement for the sale by Parrot to Exfinco of goods about to be sold by Parrot to overseas buyers, and not merely an agreement for secured loans.”

 

The drastically different rulings by U.S. and British courts on sales versus financing arrangements affect true sale opinions and securitisation structures on both sides of the Atlantic.

 

"True sale" in the context of English law securitisation structures for existing receivables is used in two contexts. First, the risk that the purported sale will be recharacterised as a loan secured by a mortgage of the receivables, such that the resulting "security" is void for want of registration. Second, the risk that the sale will be set aside under one of the grounds of challenging antecedent transactions under the Insolvency Act. The ground of challenge of a sale to which most attention is paid in English law securitisation is a transaction at an undervalue.

 

As for recharacterisation risk, under the principles set out in Re George Inglefield, Ltd., as considered and applied by the Court of Appeal in Welsh Development Agency v. Export Finance Co., Ltd. (the Exfinco case), a court could find that the transfer constitutes a sale rather than the incurring of a debt and the granting of a mortgage or other security

interest

.In Re George Inglefield, Ltd., Romer LJ prescribed three indicia that distinguish a sale transaction from a transaction of mortgage or charge:

First, in a sale transaction, the vendor is not entitled to get back the subject matter of the sale by returning to the purchaser the money that has passed between them. In the case of a mortgage or charge, the mortgagor is entitled (until he has been foreclosed) to get back the subject matter of the mortgage or charge by returning to the mortgagee the money that has passed between them.

Second, if a mortgagee realizes the mortgaged property for a sum that is insufficient to repay him, the mortgagee is entitled to recover from the mortgagor any balance, whereas in a sale and purchase contract the purchaser has to bear any loss suffered on a subsequent sale of the asset by him.

Third, if a mortgagee realizes the subject matter of the mortgage for a sum more than sufficient to repay (together with interest and costs), the money that has passed between him and the mortgagor, he has to account to the mortgagor for any surplus. Whereas, in a sale and purchase contract, any profit realised by the purchaser is for the purchaser's account.

The Exfinco case is authority for the proposition that a transaction structured by the parties as a sale will be upheld as such for the purposes of the registration of company charges provisions of the U.K. Companies Act unless either (i) the transaction is, in substance, a mortgage arrangement and not a sale, or (ii) the transaction is a sham.With regard to (i) above, if one or more provisions of the relevant document is inconsistent with a sale, then the court will look to the provisions of the document as a whole to determine the substance of the transaction. None of the indicia of a mortgage identified by Romer LJ in Re George Inglefield, Ltd. is necessarily inconsistent with a sale: a transaction structured as a sale may be upheld as such notwithstanding the fact that it bears all three of these indicia. Indeed, all of the indicia may be present in a transaction without necessarily raising a material risk of recharacterization of the purported sale as a security arrangement. In particular, the extent of recourse to the seller does not raise a particular cause for concern. With regard to (ii) above, the court will find the transaction to be sham where the documents do not represent the intentions of the parties.

 

As a practical matter, significant recharacterisation risk does not arise frequently in an English law, properly documented securitisation of existing receivables. It has, however, arisen in the context of trade receivables securitisation transactions. Practical bankers occasionally have wished to let sellers apply the cash proceeds of "sold" receivables in a manner inconsistent with the sale documents; that is, by treating them as their own. To the extent that there are informal arrangements between the seller and purchaser that represent a departure from what is prescribed in the sale documents, the risk arises that the documents will not be found to represent the intentions of the parties. There is also a risk that the court might possibly treat the transaction as a secured funding arrangement importing a charge, which ought to have been (but which would not be, as a matter of securitisation practice) registered under the Companies Act.

The other context for "true sale" (challenges on undervalue or other grounds) is rarely considered problematic in the context of English law securitisation structures. Undervalue generally is considered in the context of the transaction as a whole, and not only the sale document. This allows deferred consideration and other profit extraction devices to be taken into account. These devices invariably result in the seller, or a member of its group, receiving consideration whose value is not significantly less than the value of the receivable sold by the originator.Other grounds, such as a transaction defrauding creditors, tend to be addressed in transaction opinions for the sake of completeness but do not raise material risks

[Suetonius]

Good Afternoon Peter,

 

I would have to question your reference to true ownership. With regards to the land registry and for that matter the entire title to sue issue, it is Legal Ownership...

 

To put it beyond a reasonable doubt exactly who is legally the owner:

 

Books:

 

Securitisation Law & Practice in the Face of the Credit Crunch

 

Read from (bottom of page 21 and continued on page 22 & 23 ) 2.19 Assignments and 2.20 Title Perfection Events

 

The handbook of European fixed income securities

 

This relates to commercial mortgage loan securitisation but further confirmation of equitable assignment (page 400) True Sale Transactions

 

Also with regard to s.136 of the LOP & securitisation

 

The Law of Corporate Finance ... - Google Books

 

Under English law.......

 

This one applies to Australia but I am sure you will get the point

 

Salomon Smith Barney guide to mortgage-backed and asset-backed securities

 

There is of course the old favourites

 

Securitization: The Financial Instrument of the Future by Vinod Kothari

 

• Publisher: John Wiley & Sons; Har/Cdr edition (18 Aug 2006)
  
• Language English
  
• ISBN-10: 0470821957
  
• ISBN-13: 978-0470821954
  

Page 611 (continued on Page 612)- Equitable Assignment

"Why Equitable Assignment?

 

"Why do entities resort to equitable assignment? Essentially, to avoid the difficulties involved in full-scale legal transfer. These difficulties may either include having to notify the debtor (as under U.K. or Hong Kong law) or the stamp duties associated with a conveyance that the receivables (as in U.K. and India). Some preconditions for effecting an equitable transfer are:

 

• There must be an express intention on the part of the transferor to assign receivables.
  
• The receivables must be identified
  
• The buyer must have paid the consideration
  
• Though the obliger is not notified, the transaction must be carried out between the transferor and transferee as if full scale transfer had taken place. Therefore, the seller must not be paying from his general funds, but out of a specific fund or collections from the receivables.
  
• To allow the transferee to proceed against the obligors if the need arises, the transferor should be given a power of attorney authorizing the transferee to collect payments from the obligors.
  
• To support and strengthen the power of attorney specified above, a mandate should also be given requiring the obligors to pay the transferee."
  

And.......

 

Securitization Law and Practice: In the Face of the Credit Crunch (International Banking & Financial Law Series) by Jan Job de Vries Robbe

 

 

• Publisher: Kluwer Law International (30 Jun 2008-)
  
• Language English
  
• ISBN-10: 9041127151
  
• ISBN-13: 978-9041127150
  

 

Page 399 - 9.26 Legal Risks

 

"In English Law governed securitization transactions, one of two forms of assignments are used, equitable or legal assignment. If the assignment is equitable only, without notification to the borrower, then it only allows for protection under equity to the SPV as assignee. To ensure full protection at law however, the underlying borrowers must be notified of the assignment. The is generally done after the occurance of certain trigger events, which could indicate an increased risk of insolvency of the seller"

 

 

 

In my opinion, the important segments of the above securitisation structure are:

 

1) "Equitable Assignment of mortgage loans. The legal title is retained by the Originator (trustee) and the SPV aquires an equitable one (beneficary)"

 

2) "The SPV, who is the issuer of the MBS (mortgage backed securities) and a bankruptcy remote vehicle, creates, owns in equity and manages the pool of mortgages. He is the new equitable mortgagee."

 

Point 1, confirms that the originator retains the legal title and the SPV aquires the equitable title. Point 2, confirms that the SPV becomes the new equitable mortgagee, which may explain the letters some caggers have received relating to insurance policies.

 

3) "He (trustee of the issue) receives a mortgage over the pool of mortgage loans (sub-mortgage) and a floating charge over the SPV's assets in warranty of the over the MBS holders."

The above diagram was taken from:

 

Innovation in Securitisation: Yearbook 2006 (International Banking & Finance Law) (International Banking & Finance Law Series)

• Publisher: Kluwer Law International (1 Jun 2006)
  
• Language English
  
• ISBN-10: 9041125337
  
• ISBN-13: 978-9041125330
  

Page 126 - Section 3.2 The Role of the Trust in an English Securitisation Process.

[Suetonius]

In addition to the above books, there is of course case law

 

Pender 2003

 

137. I am only concerned of course with the taking of possession, because there was no monetary judgment. I do not see that either section 114 LPA 1925 nor the provisions of the LRA 1925 have impact on the enforcement of the mortgage debt. For there to be a legal assignment of that it seems to me self evident that it must be completed by notice under section 136 LPA 1925 and until so done, even by virtue of section 114, it will remain an equitable assignment only.

Pender 2005 (paragrapgh 109 onwards)

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

 

2) 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.

 

3) 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.

 

4) 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. Nor, in my judgment, can the fact that Paragon has failed to describe itself as suing in its capacity as trustee affect the validity of the proceedings or of the orders made in the proceedings (in particular, the possession order). In any event, even if that failure could be said to amount to a formal defect in the proceedings (and I do not regard it as such) the court has ample powers under the CPR to correct such defects (e.g. under CPR Pt 17).

 

5) In my judgment Mr Page's reliance on section 114 of the Law of the Property Act 1925 is wholly misplaced, for the reason which the judge gave: viz. that section 114 is concerned with transfers of mortgages of unregistered land (transfers of mortgages of registered land being dealt with by section 33 of the Land Registration Act 1925). To interpret section 114 as applying also to transfers of mortgages of registered land would produce a fundamental and wholly illogical conflict between the two regimes in relation to transfers of mortgages. Bearing in mind what Lord Oliver of Aylmerton said in Flegg (quoted in paragraph 85 above), I can see no conceivable basis for interpreting section 114 in a way which produces that result and every reason for not doing so. Accordingly I respectfully agree with the observations of this court in Marks with reference to the instant case (see paragraph 95 above).

 

6) Nor, in my judgment, can Mr Page find any support for his submission in the Land Registration Act 2002, or in the Law Commission Report which preceded it. In my judgment it is verging on the absurd to seek to interpret a provision in a statute by reference to a provision in a different statute enacted some eighty years later.

 

In any event, I agree with the judge that the administration agreements demonstrate a clear contrary intention, sufficient to disapply section 114 if (contrary to the conclusion which I have just expressed) the section would otherwise apply.

 

GMAC RFC LIMITED - v - SINCLAIR

 

1. During the course of the argument my attention has been drawn to an interesting case, namely City Mortgage Corporation Ltd v Reilly and Reilly, which was an unreported decision of Judge Rubery in the Stroke-on-Trent county court, dated 28th November 1997. On analysis that decision does not, in my judgment, assist the applicant for this reason. There the claimant was City Mortgage Corporation Ltd, which was the original lender and mortgagee. The original mortgage was dated 15th March 1996. On I think the same day a transfer of what Judge Rubery held to be the legal and beneficial interest in the charge was transferred to another company called Greenwich International Ltd. The transfer was not dated and it was submitted on behalf of the claimant, which was City Mortgage Corporation Ltd, that it took effect only in equity and not in law. I should add that notice to the defendants of the transfer was given on the same day, 15th March 1996.

 

2. The judge rejected the claimant's submission and held that the transfer operated as a transfer of the legal interest and that notice of that transfer had been given to the defendant, so that the transferor or assignor, City Mortgage Corporation Ltd, no longer had any rights under the charge. Those rights were vested in the transferee or assignee, namely Greenwich International Ltd. Accordingly, the claim failed.

 

City Mortgage Corporation Ltd v Reilly and Reilly

 

An unreported decision, details of judgements as detailed above

 

That is of course not forgetting the most recent case

BNY Corporate Trustee Services Ltd v Eurosail- UK 2007- 3BL Plc & Ors [2010] EWHC 200

 

Which clearly states:

 

"The first step in the securitisation transaction was the acquisition of the benefit of those mortgage loans by the Issuer"

[Suetonius]

i ponder Equity and the "clean hands" principles here for a moment, a person seeking to rely on equity must have clean hands, if there is wrong doing, such as unfair relationships, then the court will not allow equity to assist

 

This is similar to the point raised previously by both JonCris and EiE with regard to unfair relationships (feels like years ago now) but for some reason this angle does not appear to have been pursued rather continous attempts to question the title to sue etc...

 

There is clear evidence to show that the securitisation process does have an adverse effect upon the borrower -

 

Third party administrator being unable to agree to capitalise arrears

Third party administrator being unable to change the payment date

Third party administrator being unable to change a mortgage to interest only

Third party administrator being unable to offer different interest rate products

 

etc etc

[Suetonius]

Going back to the LRA 2002, can it really be said that an offence has been committed ?

 

To say that one has would of course be ignoring the fact that the charge has not been legally transferred in the first place which in itself voids the arguments with regard to s.27, which by default then makes any argument with regard to an offence totally irrelevent

 

(of course the above only applies pre notification)

Edited September 4, 2010 by Suetonius

[Suetonius]

Thanks for that exhaustive dissection.May take a few months to digest but I'll try.

 

My apologies Peter, it is just my expression of my frustration of seeing the same old flawed arguments with regard to securitisation being posted time and time again. Without any consideration being given to what the applicable legislation or case law actually states on this topic. Instead mysterious powers of interpretation and translation are used.

 

I don't know how many times for example Crapstone has posted in this thread about the FOS and charges. How many people have actually bothered to follow her good advice and make a complaint and reclaim charges. Everything needed including a completed template FOS form can be found on this thread.

 

That should be the first place people start, following Crapstone's lead and reclaim charges... If you want to hit these companies where it hurts, hit them in their pockets.... refunds cost money, complaints cost money and for these companies within the current climate money is in short supply.

 

In addition to Crapstones sound advice, both JonCris and EiE have posted with regard to unfair relationships etc... Why has this not been pursued further, it gives the Courts far reaching powers...

 

When I read some of the posts (including mine) it just looks like a battle of ego's like stag's clashing horns..... They are mostly pointless and achieve very little.

[Suetonius]

This is similar to the point raised previously by both JonCris and EiE with regard to unfair relationships (feels like years ago now) but for some reason this angle does not appear to have been pursued rather continous attempts to question the title to sue etc...

 

There is clear evidence to show that the securitisation process does have an adverse effect upon the borrower -

 

Third party administrator being unable to agree to capitalise arrears

Third party administrator being unable to change the payment date

Third party administrator being unable to change a mortgage to

interest

only

Third party administrator being unable to offer different interest rate products

 

quote suetonius.

 

Exactly it,

By contractural agreement with the spv the administrator cannot change the type of loan ,payment date or capitalise arrears this conflicts directly with the pre action protocols and mcob I think it is 11, 12 or 13 in regulated agreements.

 

But the question has to be if this were proved which is not difficult,documentary evidence to this effect I have read exists,to what extent will this benefit the borrower,could a legal challenge be raised to the effect.that such constraints and the unfair relationship due to the constraints of securitisation would make the loan unenforceable?

What remedy is there here for the borrower?

 

As you are with SPPL, mcob doesn't apply

[Suetonius]

As you say Peter, the vast majority of this thread relates to spml. As the situation is now completely different with regard to your lender SPPL, I would suggest starting your own thread and detailing your problems and cause for complaint. That will enable fellow posters to respond to your specific problems and assist you....

 

Once you have created your thread, you should post a link here, so everyone can find it..

[Suetonius]

To enable me to respond to your general question on what grounds would you argue the contract is unenforceable or for recission..

[Suetonius]

Good Morning Andrew1,

 

This post provides a little more info on that particular topic

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?170607-Spml-london-Mortgage-Company&p=3113593&viewfull=1#post3113593

 

Hope that helps

[Suetonius]

 

As you say Peter, the vast majority of this thread relates to spml. As the situation is now completely different with regard to your lender SPPL, I would suggest starting your own thread and detailing your problems and cause for complaint. That will enable fellow posters to respond to your specific problems and assist you....

 

Once you have created your thread, you should post a link here, so everyone can find it..

 

I would really prefer to stop here

 

That is a shame but I understand. It was just a suggestion, I just thought that if you created your own thread it would be easier for people to attempt to provide you the answers and assistance that you asked for, in relation to your loan with SPPL and the problems that you are having.

 

I am worried about my loan and need some answers......

 

......... I have a secured loan with SPPL I have watched this thread with interest over several months as a guest never feeling the need to register.I have been driven to my wits end by the activities of yes you've guessed it,Capstone.They have started it seems their usual tactics of lost payments and consequent arrears charges,yet I have had up to this time a perfect record,logical dialogue with them is an impossibility. I feel compelled to register here as I have seen several notifications that the legal charge to my loan is about to be transferred.These notifications have then suddenly disappeared without reason or explanation from anyone which is baffling. I have learnt that my loan is about to be transferred to someone I have never heard of,what difference will this make to me?Can anyone explain if SPPL are no longer to be the owners how do I go on about making a complaint against them.?

 

Nevermind…………..

 

I hope the evidence I have posted in response to both the template letter and the article you posted have been helpful.

[Suetonius]

Personally I am still stuck on the claims that an offence has been committed under the Land Registration Act 2002

 

It has been said that the SPV commits an offence (s.123 of the LRA) if it does not register the transfer of the charge (s.27 of the LRA ) with the Land Registry. (putting to side for a moment the fact that as the legal title remained with the original lender a transfer had not actually taken place anyway)

 

What the legislation actually says is:

 

s.27 only confirms that the disposition of a charge is required to be completed by registration

 

s.123 says that an offence has only been committed if in the course of proceedings relating to registration under this Act he suppresses information with the intention of concealing a person’s right or claim, or substantiating a false claim.

 

I just can't find where it says that an offence has been committed with regard to the mortgage securitisation structure used in the UK. I must be missing something

[Suetonius]

Good Evening Peterjm

 

s.27 only confirms that the disposition of a charge is required to be completed by registration

 

s.123 says that an offence has only been committed if in the course of proceedings relating to registration under this Act he suppresses information with the intention of concealing a person’s right or claim, or substantiating a false claim.

 

I just can't find where it says that an offence has been committed with regard to the mortgage securitisation structure used in the UK. I must be missing something .

 

OK.

This is how the normal person on the street would read this.

1)My business is acquiring loans to sell on to specially and specifically created entities for them to sell on.

2)As for security for my loan I

 

Further to 1 & 2 above, I still can't see what legal right or claim has been concealed.

 

Any legal claim or right the borrower has would be against the legal title holder of the charge.

Any legal claim or right against the borrower would be that of the legal title holder of the charge

 

I am really struggling to see what specific legal right or what specific legal claim has been concealed..

[Suetonius]

s.27 only confirms that the disposition of a charge is required to be completed by registration

 

s.123 says that an offence has only been committed if in the course of proceedings relating to registration under this Act he suppresses information with the intention of concealing a person’s right or claim, or substantiating a false claim.

 

I just can't find where it says that an offence has been committed with regard to the mortgage securitisation structure used in the UK. I must be missing something .

 

OK.

This is how the normal person on the street would read this.

1)My business is acquiring loans for the sole and only purpose to sell on to specially and specifically created entities for them to sell on.Hence my title originator.

2)As for security for my loan I register a charge against the property of the person lending the money so if they don't pay I can enforce my security.

3)I sell my loans on but the entity I sell them to takes the deliberate decision not to register at the land registry because of the numerous financial and possibly regulatory benefits it offers them.

They state to me:

Neither the Issuer nor the Trustee currently intend to effect any registration at the Land Registry of England and Wales, the Registers of Northern Ireland or any registration or recording in the Registers of Scotland to perfect the sale of the Loans and the Collateral Security to the Issuer or the charge of them by the Issuer in favour of the Trustee nor, save as mentioned below, do they intend to obtain possession of the title deeds to the Properties and the Loans and their related Collateral Security.

This will simply be achieved by not telling the borrower I have sold the loans on and is a condition of my sale.The sale would be perfected but for this one event.

4)So I have registered my loans knowing that they will be immediately sold on .Am I therefore committing an offence by not telling the land registry that I acquired these loans for immediate sale and that I cannot tell the borrower as this was a condition of the sale.?the real owner doesn't want to register their ownership at the land registry due to the benefits they can receive for not doing this as mentioned above?

5)Further the borrower will be subject to the new entities control in setting interest rates etc they will not be able to have their type of loan changed,alter payment dates,have arrears capitalised etc etc because the loan is not under my control.They will also have no knowledge I have sold their loan on.

 

Still can't see the right or claim that is concealed...

 

The legislation is very specific with regard to what is an offence

[Suetonius]

Is it a borrowers right or claim that you are saying has been concealed or a right or claim of the legal title holder that has been concealed

[Suetonius]

I am concealing the fact that the real owner is the entity for whom I originated my loans and a condition of my sale was that I was not to tell the borrower.

We also have the proof that the loans originated by sppl were not transferred which implies sold on on the date they have stated to various borrowers,the loans were sold on origination but not perfected because a condition of the sale was that sppl as like all the other originators would not tell the borrower.

 

 

You say that a fact has been concealed but the legislation that is said an offence is committed under states right or claim....

 

With regards to the date of sale, I think this was covered in my post regarding ownership

[Suetonius]

Hello Peterjm,

 

Sorry I did not answer your question regarding s.136... It was added to your post after I had already responded..

 

s.136 is to do with legal ownership as broken-down in my post with regard to ownership...

 

It is the legal owner who has all of the legal rights to the charge, including the right to be registered as such.

 

Until the formailities are completed to transfer legal ownership, the SPV does not have legal rights directly against the borrower or the legal right to be registered as the legal title owner.

 

Therefore, it would not be correct to say that right has been concealed, when legally it does not exist at that time...

 

Well, I bidding night night to watch Ali...

[Suetonius]

Now that is what I do call a coup de grace(excuse my french!)

Still thinking though!

 

No doubt following my recent posts, in the days to come a certain level of hostility and anger will head in my direction.

 

And why is this, it is because I have been foolish enough to try and correct a misunderstanding.. Not because I work for a lender but because I consider the misunderstanding should be corrected..

[Suetonius]

Why is it considered better to post a half truth or even a falsehood than it is to post the truth...

[Suetonius]

Hello Eagle if your loan is £25k+ and before 6 April 2008, it maybe outside of the jurisdiction of the FOS as SPPL is CCA and not FSA..

 

The FOS extended it's remit to cca licence holders on 6 April 2007, subject to an under lying regulated agreement

[Suetonius]

No doubt following my recent posts, in the days to come a certain level of hostility and anger will head in my direction.

 

And why is this, it is because I have been foolish enough to try and correct a misunderstanding.. Not because I work for a lender but because I consider the misunderstanding should be corrected..

 

Who from?

 

Not sure why but for some reason a line from the Clint Eastwood film "The Outlaw Josey Wales" just popped into my head...

"Don't pee down my back and tell me it is raining"

 

I will have to think about that further...

 

The question still remains if so much is known why has no viable answer ever been promoted other than the FOS and reclaiming charges?Thats pretty basic,they start up again later it seems from stories read anyway once your card is marked so its neverending.

 

I appreciate having your first post deleted was not the warmest of welcomes but for reasons I will go onto, you should not be so disrespectful to the work that has been done by all of the contributers to this thread.

 

I read in the "other place" something about Christina Norgan,what answers did she have when she challenged a decision that meant the arrears she had could not be paid over the term of the loan?This would have been discretion of a county court judge an almost impossiblity to launch an appeal against,yet she was brave or desperate enough to try and look at the result for the consumer against the whole of the mortgage industry.

 

If you have the knowledge give me the ammunition and I'll be your Christina Norgan,it would be interesting to see what response she would have had had she proposed making an appeal against usual court practice and discretion had she posted in a forum..

 

Was it from the "other place" as you call it, that you obtained the template letter and article both containing those mistakes ?

 

As a "newcomer" to CAG, you might not know that you can use the search function to search for keywords. For example, if you search just in this thread you will find posts relating to Norgan made last year...

 

Also to help you be our "Christina Norgan", I will create a thread for you, so that you can tell us more about your situation and the problems that you are having and then everyone can help you with you own particular situation.

 

Suetonius seems to profess extensive knowledge in these matters,whats his suggested course of action?

 

Suetonius?

 

I do not profess to have any knowledge of such matters. I can confirm that the vast majority of my posts - being court cases, extracts from books, Legislation and University Professors are direct quotes with direct links to the actual sources.

 

I respect the intelligence of the average Cagger and provide links so that they can read things for themselves instead of just posting my translation and or interpretation and telling people what I want it to say. As demonstrated by posts relating to the LRA 2002.

 

Also i go to great lengths to ensure that everything that I post can be easily found via a quick google search

Edited September 6, 2010 by Suetonius

[Suetonius]

Thanks Sue.

The loan was for £35,000 in 2001. Does this mean I can't claim?

 

Might be worth sending the FOS a quick email or give them a quick call to see if SPPL is in their Compulsary Jurisdiction or their Consumer Credit Jurisdiction.

[Suetonius]

Also to help you be our "Christina Norgan", I will create a thread for you, so that you can tell us more about your situation and the problems that you are having and then everyone can help you with you own particular situation.

 

Here you go peterjm,

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?275953-Peterjm-and-SPPL

 

Hope it helps you

Edited September 6, 2010 by Suetonius