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

[enoughisenough]

Suetonius virtually single handedly succeeded handsomely in pouring cold water over the securitazation means they have no right to sue argument. I always have had a naggle about this and for me there are many unexplored areas.

 

What do you think was wrong with Pender?. For me it was their conduct plain and simples. They hadn't even tried to pay for about seven years. Above that of course is the legal Vs equitable bollo**s which doesn't seem to want to go away even when it has been debated endlessly on the Carmel House of Commons and the Mortgage securitisation preferred threads. There is something really nagging me about this but I can't put my finger on it. Full consideration, beneficial interest, trustees, spvs, wind ups, closures, no longer operating but still able to lay claim, PwC, Nomura, Jersey and Guernsey and the effing Cayman Islands, investors pressing the FSA, the OFT suspending such investigations.... bleeding hell. And now the TSc are giving the FSA stick for allowing 40.000 possessions to take place while the FSA knew there was something rotten. God give me strength.

 

What strikes me is this.

 

Even if absolute assignment was the case we would likely be facing defeat. The whole house of cards would tumble and the consequences disastrous. The system simply can't allow that to happen. It would have been a financial armageddon.

 

So they let lehmans fail (good target) blame it on us the sub primers and worry about how to clean out the stables later after we've all been repoed.

 

Great.

[Suetonius]

The Pender case, is not a citable precedent.

 

 

ITBG?

 

Firstly a warm welcome to CAG ITBG?

 

You say that the Pender case is not a citable precedent. Is that a personal or a legal opinion?

 

In my own personal opinion, the doctrine of judicial precedent involves the application of the principle of "stare decisis", which means to 'stand by cases already decided'. Decisions made in the House of Lords bind all courts in the Country except the House itself. The House of Lords will usually follow its own decisions but will depart where it seems right to do so.

 

Decisions made in the Court of Appeal (i.e Paragon Finance v Pender {2005} ) bind courts below it and usually bind itself, unless its own previous decisions conflict, are incompatible with a decision made in the House of Lords even if not expressly overruled, or were made "per incuriam" (by mistake). The precedent is followed less rigidly in the criminal division where a person's liberty is at stake.

 

It is the "ratio decidendi" of a case which gives the principle of law that becomes binding under the doctrine of judicial precedent. "Ratio Decidendi" is a latin phrase meaning 'the reason for the decision'. It refers to the way a court reasons and applies the law in order to come to a particular decision. The ratio of a case will only be binding on a later case where the legal principle involved is the same and the facts are sufficiently similar. Any other reasoning within the case is said to be "obiter dicta", meaning 'by the way'.

 

Comments made "obiter dicta", together with decisions of lower courts, dissenting judgements, legal journals and text books, roman law, and decisions of courts in Scotland, Ireland, the Commonwealth and the USA may all be persuasive precedent. Persuasive precedent is not binding but may be considered, particularly where there is no authority on the point of law.

 

As an example, specifically relating to Paragon Finance V Pender:

 

Ford Camber Ltd V Deanminster Ltd & Anor [2006] EWCH 1961 (ch)

 

"47. I disagree with that analysis, unless a challenge is being made to the genuineness of the documents as they appear to be executed. It must be appreciated, that at all material times the title was a registered title. The legal estate is not acquired by the transfer; it is acquired by the act of subsequent registration. Under the provisions of the Land Registration Act 1925 which applied to the transfer, LAW, like any other transferee with a right to register, is enabled to deal with the title before becoming registered, see s.37 LRA 1925.

 

The effect of the transfer is to transfer the beneficial interest in the Phoenix site to LAW. It also conferred on LAW the right to be registered. It could have registered the First Transfer but it chose not to do so. Doubtless the reasons for that were two-fold.

 

First it would be transferring the title away twenty days later and second to save Land Registry Fees. This provision was reviewed (amongst other things) in a Court of Appeal decision of Paragon Finance v Pender [2005] 1WLR 3413 (at paragraph 64 in the context of a mortgagee). Had the title been unregistered then the legal estate would have vested in LAW at the time of a conveyance/transfer in its favour.

 

It might then be subject to an obligation to retransfer back to Tesco, but that does not affect the plain fact that LAW acquired by the First Transfer the entirety of the estate it could acquire from Tesco the Transferor. It became the owner in equity and it would become the owner in law upon registration. I do not see why LAW could not "wash" the title through its brief ownership in order to exercise its statutory powers provided it considered the exercise properly. It is not suggested the decision was improper or wrong."

Edited September 18, 2009 by Suetonius
spelling mistakes

[Crapstone]

Of course the flaw in this cunning plan was screwing people so tightly that their credit file status deteriorated rather than improved leaving them with no where to turn. Ironically I've paid off half the original capital in 3 years and I'm classified as a delinquent borrower who prime lenders will not touch.

 

The performance aspects are critical to this. What do the contracts say, what has actually happened and what does the law have to say about this? there are so many slam dunks that the pressure could ultimately tell when the big guns are wheeled out. Unfortunately I'm not at home in order to go through the contract at the moment, but will do as soon as I can. Forensically.

 

I'm glad you have contracts to go through! I have the original T & C's and a copy of the lending terms which are wrong and not what I signed up for. The lending period should have been less than 25 years and on a lower rate after the initial fixed period but they have lost all copies of their paperwork on the account.

 

My fixation still remains with any introducer who must have been fully aware of the implications of these mortgages but failed to advise. Not forgetting the unfair terms and charges but also the implied references to being a secured mortgage with a lender. Which we all know they weren't and had the rug pulled from under us

 

Then on to performance of the contract. It didn't do what it said on the tin and no complaint has ever been resolved by Capstone or SPML alone. Everything that could have gone wrong has and they just add insult to injury by denying responsibility or offering £50 if you're lucky.

 

The insurance aspect is one way to go as this leads them more into a tangle. Who is the beneficiary? Why? How? The more questions you ask the more they leave you alone. Go to the FOS. Write letters to Capstone and keep writing to them questioning everything.

 

Look at the contracts as a whole, on basic contract law. There are several flaws that need to be considered and inducement is one of them.

[Crapstone]

Firstly a warm welcome to CAG ITBG?

 

You say that the Pender case is not a citable precedent. Is that a personal or a legal opinion?

 

In my own personal opinion, the doctrine of judicial precedent involves the application of the principle of "stare decisis", which means to 'stand by cases already decided'. Decisions made in the House of Lords bind all courts in the Country except the House itself. The House of Lords will usually follow its own decisions but will depart where it seems right to do so.

 

Decisions made in the Court of Appeal (i.e Paragon Finance v Pender {2005} ) bind courts below it and usually bind itself, unless its own previous decisions conflict, are incompatible with a decision made in the House of Lords even if not expressly overruled, or were made "per incuriam" (by mistake). The precedent is followed less rigidly in the criminal division where a person's liberty is at stake.

 

It is the "ratio decidendi" of a case which gives the principle of law that becomes binding under the doctrine of judicial precedent. "Ratio Decidendi" is a latin phrase meaning 'the reason for the decision'. It refers to the way a court reasons and applies the law in order to come to a particular decision. The ratio of a case will only be binding on a later case where the legal principle involved is the same and the facts are sufficiently similar. Any other reasoning within the case is said to be "obiter dicta", meaning 'by the way'.

 

Comments made "obiter dicta", together with decisions of lower courts, dissenting judgements, legal journals and text books, roman law, and decisions of courts in Scotland, Ireland, the Commonwealth and the USA may all be persuasive precedent. Persuasive precedent is not binding but may be considered, particularly where there is no authority on the point of law.

 

As an example, specifically relating to Paragon Finance V Pender:

 

Ford Camber Ltd V Deanminster Ltd & Anor [2006] EWCH 1961 (ch)

 

"47. I disagree with that analysis, unless a challenge is being made to the genuineness of the documents as they appear to be executed. It must be appreciated, that at all material times the title was a registered title. The legal estate is not acquired by the transfer; it is acquired by the act of subsequent registration. Under the provisions of the Land Registration Act 1925 which applied to the transfer, LAW, like any other transferee with a right to register, is enabled to deal with the title before becoming registered, see s.37 LRA 1925.

 

The effect of the transfer is to transfer the beneficial interest in the Phoenix site to LAW. It also conferred on LAW the right to be registered. It could have registered the First Transfer but it chose not to do so. Doubtless the reasons for that were two-fold.

 

First it would be transferring the title away twenty days later and second to save Land Registry Fees. This provision was reviewed (amongst other things) in a Court of Appeal decision of Paragon Finance v Pender [2005] 1WLR 3413 (at paragraph 64 in the context of a mortgagee). Had the title been unregistered then the legal estate would have vested in LAW at the time of a conveyance/transfer in its favour.

 

It might then be subject to an obligation to retransfer back to Tesco, but that does not affect the plain fact that LAW acquired by the First Transfer the entirety of the estate it could acquire from Tesco the Transferor. It became the owner in equity and it would become the owner in law upon registration. I do not see why LAW could not "wash" the title through its brief ownership in order to exercise its statutory powers provided it considered the exercise properly. It is not suggested the decision was improper or wrong."

 

Welcome back Suetonius.

 

My comments should, of course, be considered as noscitur a sociis

[Crapstone]

Ryde-We have tried to remortgage last year and they made it so complicated for us to do so. The mortgage is a repayment and the interest at the moment on it is more than the cmi.

 

Crapstone-All cheques have been cashed but it takes them nearly 2 weeks to do so.

All cheques are sent to there solicitors as requested by the DJ in the last order.

We even receive notification from there solicitors to say they have received our payment and are sending it on to there client.

 

EIE-It's not a Barclays a/c they hold it's a HSBC a/c and we have tried this route before, where they even refused that payment and returned it back to our a/c.

 

So in all honesty we are on a losing battle.

Just hope the house sells quickly.

Oh and with re to libor ours is at 5.5%.

 

As long as you can prove you've sent the payments in good time there isn't a lot that can be done. If you send it and they don't cash it or deal with it on time then that's their problem. Your proof of posting is important, getting someone to witness the contents of the envelope and that the cheque is correctly written helps. Photocopy everything.

 

I had no end of problems trying to make direct payments and they are aware of this. Whatever method you use they always seem to create a delay, decline or lose a payment without rhyme or reason.

[gustavius rex]

l did mention in one of my earlier posts that both SPML and Preferred Mortgages were late with their accounts. That they are now going to be prosecuted l find very interesting indeed. As non of these rouge outfits were real mortgage lenders and as they lost both the short term financing fro Barclay Capital and capitalisation through securitisation and/or the sale of existing mortgage books, they are obvioulsy suffering from negativ cashflow. lt would be very interesting to know how the various investors who bought up all these beneficial mortgages will react and act now. These investors must have their investments secured against the legal title of the property, but, if they are going to claim this then they will have to register their charge and legal title and pay stamp duty! Now, stamp duty on a £750,000,000.00 portofolio will, even at a 1% average cost, be an astronomic cost of £7,500,000.00!!! Every percentage point in increase will then be another £7,500,000.00, not chicken fees exactly. lt's a mess and if SPML or Preferred are permitted to go bankrupt, then, it will get even more complicated. As a footnote, Alliance & Lester had an agreement with Lehman Brothers that they would originate sub-prime mortgages and then sell them on to Lehman's! l wonder how many mortgagoors knew about that when they signed on the dotted line with A&L???

GR

[enoughisenough]

As a footnote, Alliance & Lester had an agreement with Lehman Brothers that they would originate sub-prime mortgages and then sell them on to Lehman's! l wonder how many mortgagoors knew about that when they signed on the dotted line with A&L???

GR

 

ZERO?

 

Just putting the finishing touches to my FOS complaint. Nice and detailed, fully documented, and a thorough shafting of our friends. Where others have gone before me they have had success so fingers crossed that our Ombudsman lives up to his name.

 

I should have noticed this before but somehow missed it. They claim that the mortgage is not a regulated agreement under the CCA 1974. However they used that very Act to issue a default notice way back. Now I'm already aware of Heath Vs SPML which will be heard in the CoA soon. Keep an eye on this peeps because if it goes to Heath, very many of us, not all though I'm afraid might find that the entire agreement is unenforceable. You'd think for what the corporate lawyers get paid they'd have got more of this stuff right. But I suppose once we hit the noughties they were just loving printing the funny money and forgot boring things like paperwork.

 

May you live in interesting times.

 

Welcome back Sue by the way.

[ryde]

If preferred and spml have not submitted their accounts since 2006 surely this is a criminal offence and the fine could also be huge.It has been suggested that these are mere shell companies and the strings are being pulled through capstone which makes some sense as capstone avoid any direct litigation.I know i may keep on bleating on about this but I have now submitted as an almost last resort to the Court that Preferred Mortgages are in administration as reported in the press and have enclosed a copy of the report,I have also submitted that they therefore do not have the legal capacity to bring a claim against me.Someone is going to have to prove that they are not in administration :surely they could not go into administration and companies house be unaware of it?are spml and preferred just a front for capstone?who actually implement all the litigation etc through these names and probably others.I really don,t understand, trouble is I have to prove it somehow because at the moment preferred cannot register their charge against the property and have denied to the Court that they have securitised the mortgage and do not own the loan and therefore cannot legitimately bring the claim The Court in the absence of any substantiating evidence from me have accepted their word for it

Edited September 19, 2009 by ryde
mistakes

[Suetonius]

Welcome back Suetonius.

 

My comments should, of course, be considered as noscitur a sociis

 

Welcome back Sue by the way.

 

Thanks, just a flying visit though. I was intrigued by certain posts;-)

 

Suetonius virtually single handedly succeeded handsomely in pouring cold water over the securitazation means they have no right to sue argument.

 

Thanks for the credit EIE but I think it has more to do with the applicable laws (legislative and case).

[Smarterchick]

 

Thanks for the credit EIE but I think it has more to do with the applicable laws (legislative and case).

 

 

...but as with any good barrister Suetonius, it's how you present your case, put people to strict proof and extract their defence...you're in the wrong job matey

[gustavius rex]

If preferred and spml have not submitted their accounts since 2006 surely this is a criminal offence and the fine could also be huge.It has been suggested that these are mere shell companies and the strings are being pulled through capstone which makes some sense as capstone avoid any direct litigation.I know i may keep on bleating on about this but I have now submitted as an almost last resort to the Court that Preferred Mortgages are in administration as reported in the press and have enclosed a copy of the report,I have also submitted that they therefore do not have the legal capacity to bring a claim against me.Someone is going to have to prove that they are not in administration :surely they could not go into administration and companies house be unaware of it?are spml and preferred just a front for capstone?who actually implement all the litigation etc through these names and probably others.I really don,t understand, trouble is I have to prove it somehow because at the moment preferred cannot register their charge against the property and have denied to the Court that they have securitised the mortgage and do not own the loan and therefore cannot legitimately bring the claim The Court in the absence of any substantiating evidence from me have accepted their word for it

 

 

 

 

l think you will have a problem with proving Preferred/SPML are under administration, other than as a direct result of Lehman Brothers being under admin. The problem you have is that both Preferred and SPML are independent legal entities, albeit, owned by Lehmans, (or at least were). That Lehman has made arrangements to have their ownership pass through various other companies is irrelevant. Regarding Capstone, you should stop worry about their position as they are (or were) a fully Lehman company too. l ca only look at this the way l would set it up and l think l'm not too far out here. Preferred/SPML/London Mortgage Company are no real working companies other than on paper. They are all located at the same address and they are all administrated by Capstone, why, the conclusion is that neither is more than a shell company and a front. The actual work was done by agents/mortgage advisors and Lehmans. The mortgages were sold off and collection/administration done by Capstone. A beutiful set up, as long as it works and legal. Not a lot of costly staffing and offices and as l said so many times, a very short turn over of the mortgage loans. Capital provided on short time basis by Barclays Capital at premium rate. Sell the mortgage on at even more premium rate and voila a very nice little earner, thank you.

 

What you have to find out is who really owns Preferred/SPML now. Did Lehmans or the bankrupcy sell off these companies as they sold off Lehmans assets to Barclay in the States? And, where are our mortgages now.

GR

[zither]

I dont know if this has any bearing on what you chaps are talking about, but I was reading in the Daily Mail yesterday about Barclays. They have so the paper says transferred £7.5bn of toxic assets to a Cayman Island company. The best bit (for some) indicates that 45 staff will be paid an annual management fee of £24m to nuture the assets. It does go on but too long to quote here. Perhaps mortgages are wrapped up in there too?.

[enoughisenough]

What you have to find out is who really owns Preferred/SPML now. Did Lehmans or the bankrupcy sell off these companies as they sold off Lehmans assets to Barclay in the States? And, where are our mortgages now.

GR

 

Nomura?

 

In accordance with the agreements in September 2008, Nomura acquired Lehman Brothers’ (“Lehman”) franchise in the Asia

Pacific region including Japan and Australia as well as European and Middle Eastern equities and investment banking operations of

Lehman in October 2008.

Lehman has been a strong player in the investment banking fields, including M&A, execution services, derivatives, electronic

trading and prime brokerage. With these acquisitions including those described below, Nomura has combined Lehman’s strong client

franchise and has strengthened its wholesale business. The deals do not include any trading assets or trading liabilities.

 

Not sure about the last bit. Can't seem to find any more detailed information. But it would make sense that anything formerly owned by Lehmans has fallen into Nomura's hands.

 

On a different topic. I've tested the Capstone Rates against the historical LIBOR and there's very little difference apart from one or two minor discrepancies. However peeps should check out 1.12.08. 3 monthly sterling Libor was 3.881. The rate at 5% over should be 5.88. However when applying my even more expensive overage it is 0.3% over what is it should be - not much admittedly but if applied across the board this would be a nice little christmas bonus for our friends in the collection and administration business.

 

A more interesting way of looking at these figures is the payment I make every month over the interest due, which over the lifetime of the mortgage amounts to more than 4K. The overage is supposed to take care of the repayment part. But it hasn't gone down by 1p. Where is that additional money going?

 

Further, on 1.9.08 Libor was 5.749% and on the 1.12.08. it was 3.881%. My payment decreased by a mere £2.51. I believe that these figures need much closer inspection so I'm going to bite the bullet and get them audited.

 

Over to you Mr. Marek.

[enoughisenough]

I dont know if this has any bearing on what you chaps are talking about, but I was reading in the Daily Mail yesterday about Barclays. They have so the paper says transferred £7.5bn of toxic assets to a Cayman Island company. The best bit (for some) indicates that 45 staff will be paid an annual management fee of £24m to nuture the assets. It does go on but too long to quote here. Perhaps mortgages are wrapped up in there too?.

 

 

http://business.timesonline.co.uk/tol/business/industry_sectors/banking_and_finance/article6837710.ece

[enoughisenough]

Originally posted by Suetonius

 

Thanks for the credit EIE but I think it has more to do with the applicable laws (legislative and case).

 

I'm still not conceding...

[zither]

Barstewards EIE, money grabbing sods you would think they would have had as much as they could before all this sad saga started.

[enoughisenough]

Let's put a dent in their premium rate number money profit line

 

Don't pay to listen to their music!!!

 

020 7532 9325

 

Guessing that's the Broadgate Office. Wonder if there's a Bank of Nomura plate on the wall?

[ryde]

G.REX I think what you have said in your last post seems to make a lot of sense.The problem as you state is who owns them now.How long can they last as a legal entity without submitting mandatory accounts?have they just been hung out to dry and all their paper assets transferred on.If they hold the legal title to our mortgages has this been sold on?if so who to?does anyone know company law surely they cannot go on for ever without submitting any returns and on paper at least holding these huge mortgage books.at what point does companies house take action,surely then the fireworks will start.if they hold the legal title to our mortgages and are disqualified or sold on would that mean wholesale applications to the land registry of the new legal title holder?perhaps i'm just talking rubbish here can someone put me straight.

[enoughisenough]

That's a very interesting contribution Ryde. Suppose someone were to test the water by applying to HMLR to have the charge removed on grounds of LBEI's bankruptcy. Is their anyone out there who knows bankruptcy law?

[ryde]

The trustee in bankruptcy owns the asset usually! ie they would own the charge on your property but would have to make an application to the land registry,I THINK YOU HAVE A RIGHT OR FACILITY TO negotiate with the receiver to buy their interest ie you could buy their interest in the charge because all they want to do is raise cash quickly for the creditors

[enoughisenough]

Hi ITBG

 

of course the credit for this idea should go to you since you are the one to have raised it. It may lead nowhere but hey ho that's hardly going to be our opening position is it? I've amassed a disk full of stuff (all securely backed up because I'm the cautious type these days!)

 

can you give me an idea of what you think may need to be laid on the table at this 'meeting' and I'll have a good poke around?

[gustavius rex]

The trustee in bankruptcy owns the asset usually! ie they would own the charge on your property but would have to make an application to the land registry,I THINK YOU HAVE A RIGHT OR FACILITY TO negotiate with the receiver to buy their interest ie you could buy their interest in the charge because all they want to do is raise cash quickly for the creditors

 

 

 

Be cautious my friend. Preferred/SPML are not in bankrupcy (yet) and they are the legal title holders or to be absolutely correct charge holders. lf the Lehman administrators wan't to flog off Preferred/SPML's assets, they will have to sell off or wind up these companies first. l think we need to find out the exact current status before we go any further with that. l actually opened up my comments on this site with a proposal to see if there actually was a possibility to make a common action and buy up our morthgages at a discounted rate. Problem is, that so many of us, including myself, have by now credit files that no-one would lend us a penny. Further, for this action we would need a massive engagement of people with mortgages from the Lehman outfits and looking back at previous attempts to do something similar, l'm not too optimistic. l would, however, love to be proven wrong.

 

Gustavius

[enoughisenough]

Hi GR

 

your counsel of caution is well observed. However faced with extinction ie repossession and all the absolute horrors entailed therein all options must be on the table. Though I very much doubt that an exploration of the LR's position would lead us anywhere, it is being explored by ITBG. In these circumstances it is best to let ITBG proceed given that as I'm aware these are merely investigatory inquiries with the LR.

 

Not too much for any of us to lose here. That having been said any all guns blazing approach on this issue is doomed to fail. Agreed. Caution is always necessary.

 

As a postscript I'm still waiting for the aggressive, misleading and dishonest practices to resume their normal services. What is their current strategy? Stabilisation or liquidation?

 

PPS SPPL no longer exist (all interests having been sold to SPML). Anyone any ideas where that leaves SPPL's rights of claim?

 

Keep the faith. EiE.

[I'm the bad guy?]

to add,

 

The directors pf SPMLare facing imminent prosecution(fact). SPML is NOT in administration, as there is due process. I believe it is insolvent, which requires in a public capacity to be reported to the DTI (insolvency hotline# or public email complaint) and they have a duty to investigate.

 

ITBG?

[enoughisenough]

Directors of SPML are facing imminent prosecution fact?

 

Give us a clue ITBG?

 

Pretty please with sugar on top...

 

Are you on the inside?