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

[I'm the bad guy?]

To quote, SuperSleuth:

'because the Claimant(lenderSPML/PMLetc) has sold the mortgage to another company(SPV), it has been paid in full for the mortgage and therefore the Claimant has suffered no loss and therefore there is no loss on which the court can be called upon to remedy'.

 

Your contractual privity is with the SPV. End of. It is up to us to prove that in the courts, and I believe we have that proof.

 

ITBG?

[enoughisenough]

What's that about eggs.

 

If you are referring to the umpteenth call and my response thereto from a credit provider not dissimarly named that is the end of me and you my recently arrived 'friend'

 

warning to all caggers . Pms are a meansby which you will be exploited. They serve no real purpose except by which you may be manipulated. Even experience is no immunity. A pm does not serve the community. No one can read the info given and no one can check

[I'm the bad guy?]

EiE,

 

don't get it?, I made an irreverant reference in reply to your toga thing!

 

I like eggs! or I like girls! t-shirt,

 

nothing in it, unless you're making a connection to some incident you know of?

 

ITBG?

confused

[Crapstone]

My payments taken used to say SPML SPSH. I know that it was securitised to Mortgage Funding 2008. Now the account payments have changed to SPML- MGE FN 08 1T.

 

ITBG,

 

The insurance point was picked up on a while ago when I had to make an insurance claim.

 

You'll also note that the t &c's say that any money arising from an insurance claim must be held in trust for said company.

 

I refused to name the beneficiary on my insurance and contacted Capstone when made the claim. I informed that that I felt it was duty to directly inform the company or entity that claimed to have the security and not go via them...

 

How happy and forthcoming were they? A stoney silence... so the complaint is now sitting elsewhere awaiting an outcome on the legality.

 

As you say if my house caught fire, fell over..where does that leave me and the balance of the mortgage in relation to insurance and a 3rd party? I have a right to know this as I'm paying for the insurance and the mortgage plus all the other associated payments made in the first instance.

[Suetonius]

I'll come back on that one.

 

Fact. The arrival of a toga wearing naysayer speaking Latin is imminent.

 

Meant only in humour sue if you pick this up.

 

Eie

 

 

There is not much that I can really add that I have not posted before, so I will just repeat the information and explanations I have previously posted.

 

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."

 

To quote, SuperSleuth:

'because the Claimant(lenderSPML/PMLetc) has sold the mortgage to another company(SPV), it has been paid in full for the mortgage and therefore the Claimant has suffered no loss and therefore there is no loss on which the court can be called upon to remedy'.

 

Your contractual privity is with the SPV. End of. It is up to us to prove that in the courts, and I believe we have that proof.

 

ITBG?

 

As nice as it would be, if it was "End of", I disagree that is the case with regard to securitisation...

 

 

Extracts From Pender

 

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).

"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"

"Nor, in my judgement, can the fact that Paragon has failed to describe itself as suing in its capacity as trustee."

The key word is trustee.

 

What is a trust ?

 

A trust is the separating of the legal (legal title) and the beneficial (equitable title) ownership of property.

 

A trust consists of three parties:

 

• Settlor (the owner of both the legal and equitable title aka absolute owner)
  
• Trustee (Administor of the trust, which owns the legal title)
  
• Beneficiary (the owner of the equitable title)
  

 

In securtisation, the settlor and the trustee is usually the same party (i.e mortgage lender). Therefore, the trustee is granted the legal powers to enforce any rights in relation to the property.

 

The beneficiary is the SPV, which purchases the equitable title to the property. However, as beneficiary and the owner of the equitable title, it does not have any legal powers to enforce any rights in relation to the property.

 

Trusts have always been used as a method of limiting the exposure of assets to taxes and other legal claims as well as to specify the use of those assets in ways not otherwise recognised under the law.

In the scope of a trust, the trustee (mortgage lender) acts to protect the interests of the beneficary (SPV). Therefore, when a mortgage lender instigates repossession proceedings (and the mortgage has been securitised), it is doing so as the trustee of the trust. Therefore, any actual financial loss directly to the mortgage lender is immaterial.

 

I think that Her Majesty's Revenue & Customs (HMRC) explains far better than I can:

 

Introduction to settled property: What is a trust?

 

"The law of trusts is based upon the concept of English law that property rights can be split into:

• the legal ownership, and
  
• the beneficial interest
  

A person who is the absolute owner of property has both the legal and beneficial interest in it.

 

This means that the owner will show up as legal owner, e.g. on a land register or on a company register, and will also enjoy any benefit produced by the property.

 

The absolute owner may split the legal interest from the beneficial enjoyment. This can be done by giving the legal ownership to trustees and the beneficial interest to a named beneficiary (or beneficiaries). Alternatively the owner can retain the legal title and make himself a trustee."

 

Therefore, the matter of consideration being paid to the settlor (mortgage lender) by the beneficary (spv) has no bearing.

Please don't confuse the mortgage lender acting as a trustee with the spv's trustee of the equitable title, as that is another step of the securitisation process

 

If anyone would like to debate either the pender case or equitable v legal assignment, here are two threads especially created for that purpose

 

 

1. Paragon V Pender - Title to Sue
   
2. Mortgage Securitisation - Equitable or Legal Assignment
   

Edited September 25, 2009 by Suetonius

[Suetonius]

I have read with great interest the posts with regard to administration and the impact this may or may not have. Of course this impact is only applicable if said company was in administration.

 

This is a link, to companies house explaining more about administration

Edited September 25, 2009 by Suetonius
added link

[Suetonius]

Spoke to CH today, SPML directors still facing prosecution for late filing. What midge61 has at 20-9-2009 is the 363form annual return, which is a standard details of changes of directors, address etc.

 

So SPML, PML accounts overdue, don't be surprised if Capstone don't file either.

 

Anybody, got a response to my request for a worded SAR cover letter?

 

Many thanks

 

ITBG?

 

Here is a 363a Annual Return form for people to take a look at, when they get time. (remember that this form is used for snapshot purposes only)

 

http://www.companieshouse.gov.uk/forms/generalForms/363Oct08.pdf

 

Here is a link to some information about this particular form:

 

http://www.companieshouse.gov.uk/about/gbhtml/gba2.shtml

 

Furthermore, I also came across this:

 

Gazette Website: PDF Navigator (Page 423)

"SOUTHERN PACIFIC MORTGAGE LIMITED 03266119 (K) 10/06/2009"

 

Gazette Website: PDF Navigator (PAGE 1)

 

"(K) DOCUMENTS DELIVERED BY A COMPANY UNDER SECTION 241 (ANNUAL ACCOUNTS)"

 

 

Edited September 25, 2009 by Suetonius
Added a little more

[Suetonius]

I will now take my toga wearing, naysayer and latin speaking backside, back to the wilderness

[Crapstone]

Just my mumblings....

 

The gable end of my house bows out and wasn't picked up on the survey, either of them. My insurance company blamed it on a twisted beam but no further movement was expected and listed it as safe despite my concerns of subsidence.

 

It's still moving!

 

Wouldn't it be terrible if the building was declared unsafe..

[ryde]

its all gone very quiet no wonder after that lot I FEEL LIKE A RAT TRAPPED IN A BARREL.BUT AT LEAST WE KNOW WHERE WE STAND.WHERE NEXT?

[I'm the bad guy?]

Suetonius,

 

points to note:

 

1) Pender SPV document not the same as Eurosail.

 

2) LRA 2002 section 27 Dispositions required to be registered

(1) If a disposition of a registered estate or registered charge is required to be completed by registration, it does not operate at law until the relevant registration requirements are met.

 

3) I cannot find any mention in the Eurosail prospectus that the lender act as a 'trustee' to the SPV, the only TRUSTEE is BNY.

 

comments?

 

 

ITBG?

[Suetonius]

I would like to add, just because it says in the prospectus(in extreme ambiguity) that the tranfer is equitable and not legal., donot take things as written to be absolute. The whole idea of legal doctrine is based upon interpretation, that is the purpose of legal action, to adjudicate the facts within the law. Stay on what we can prove.

come back please, facts only?

 

ITBG?

 

I don't agree that there is any ambiguity in the prospectus with regard to equitable or legal assignment.

 

http://www.ise.ie/debt_documents/eurosail%205NP%20P_9529.pdf

 

Page 22

 

"Legal title to the Mortgages in the Mortgage Pool has remained since origination and will remain: (i) in the case of the SPML Loans, with SPML; and (ii) in the case of the PML Loans, with PML. Subject to the completion of applications to the Land Registry of England and Wales, the Registers of Scotland or the Registers of Northern Ireland, as applicable, for registration of the transfers, the legal title to the A&L Loans will remain with A&L."

 

Page 23

 

"In order for legal title to the Mortgages over registered land in England and Wales, Northern Ireland and any land in Scotland to be transferred, transfers and assignations would have to be registered or recorded at the Land Registry of England and Wales, the Land Registry of Northern Ireland or the Registers of Scotland, as applicable, and notice would have to be given to the Borrowers."

(as per s.136 of the law of property act 1925)

 

It is not the prospectus that defines if the assignment was equitable or legal. It is s.136 of the Law of Property Act 1925, which states:

 

(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—

 

 

Suetonius,

 

points to note:

 

1) Pender SPV document not the same as Eurosail.

 

2) LRA 2002 section 27 Dispositions required to be registered

(1) If a disposition of a registered estate or registered charge is required to be completed by registration, it does not operate at law until the relevant registration requirements are met.

 

3) I cannot find any mention in the Eurosail prospectus that the lender act as a 'trustee' to the SPV, the only TRUSTEE is BNY.

 

comments?

 

 

ITBG?

 

The above points are very similar to the points that were raised by Superslueth. All I can really do is provide similar responses to those that I previously provided. However.....

 

 

1) Pender SPV document not the same as Eurosail.

 

I don't fully understand the distinction that you have made. The Eurosail prospectus confirms that the legal title will remain with SPML (or PML or A&L, depending upon the orginal lender). Therefore, the title must have been split into two seperate parts. Part A - Legal Title and Part B - Equitable Title.

 

As I have previously posted when the title is split a trust is created. The legal title holder (SPML etc) is the trustee of this trust. This trust is different from the trust as decribed in the prospectus as that particular trust is a different stage of the securitisation process.

 

So yes, the prospectus for SPML and for Paragon may be different. However, this has no bearing (in my own personal view) of the creation of the trust or the lender being the trustee, on the provision the original lender retains the legal title.

 

 

2) LRA 2002 section 27 Dispositions required to be registered

(1) If a disposition of a registered estate or registered charge is required to be completed by registration, it does not operate at law until the relevant registration requirements are met.

 

The legal title has not been disposed, it has been retained by the original lender.

 

*(sorry forgot to say under s.27 of the LRA only a transfer of a charge (which has not occured, as legal title remains with original lender) and the grant of a sub charge are dispositions that are required to be completed by registration (with regard to registered charges as per s.27 (3) )

 

3) I cannot find any mention in the Eurosail prospectus that the lender act as a 'trustee' to the SPV, the only TRUSTEE is BNY.

 

The Eurosail prospectus does confirm that the original lender will retain the legal title. Therefore, it becomes a trustee as a trust is created to split the title.

Edited September 25, 2009 by Suetonius
Added a little extra about s.27

[ryde]

MY situation is probably very different to most as I HAVE A RESTRICTION ON A PROPERTY ON WHICH I HAVE A BENEFICIAL INTEREST AND ON WHICH PML HAVE BEEN TRYING TO REGISTER A CHARGE SO I ASSUME AT THE MOMENT THEY ONLY HAVE AN EQUITABLE CHARGE IF THEY HAVE SECURITIZED THIS IE SOLD THE EQUITABLE TITLE AND HAVE BEEN PAID FOR THIS HAVE THEY A RIGHT TO SUE NOT BEING THE LEGAL TITLE HOLDER AS YET BUT AS TRUSTEE FOR THE SPV I SUPPOSE THEY MAY HAVE ITS INTERESTING IN THAT THERE ARE ACTUALLY TWO COMPETING EQUITABLE INTERESTS AND USUALLY THE FIRST IN TIME STARE DECISIS TAKES PRIORITY. THE WHOLE MATTER IS AT THE LAND REGISTRY ADJUDICATOR AT PRESENT AS WE SPEAK.ANY OPINION/HELP MORE THAN WELCOME

Edited September 25, 2009 by ryde

[ryde]

can someone simply explain if pricewaterhouse are administrators for the lehman uk group etc and have tried to offload both capstone spml pml et al they surely must be in overall control of these entities who are part of lehmans assets so are administering them whilst trying to find a buyer.So are spml pml etc entitled legally to bring an action for repossession or any legal action in their own name.I cannot understand this if I WENT BANKRUPT AND OWNED SEVERAL LIMITED COMPANIES THEY WOULD FORM PART OF MY ASSETS AND BE RUN OR ADMINISTERED BY MY TRUSTEE IN BANKRUPTCY ie the official receiver WHO WOULD BE THE ONLY PERSON ENTITLED TO BRING ANY LEGAL ACTION.SUETONIUS COULD YOU EXPLAIN PLEASE

[Crapstone]

For Capstone and SPML it's business as normal. Nothing has changed as yet. Each has its own legal entity in the web and are not under PWC. Any viable parts of the company will be spared and have to continue unless instructed otherwise.

 

Just because Lehman has gone down it's not cut and shut for the rest of the arm.

 

I'd have thought more complaints would have been upheld but they still have a high percentage.

 

Complaints data

[ryde]

thanks for reply crapstone you must be an insomniac like me and this shower has played a big part in this,I need retribution.!!!!!!!!

[gustavius rex]

Hi Guys,

Been a couple of days since l made any contribution to this thread, but, l've followed the ongoing discussion with great interest. l think, personally that is, that by now and with my earlier conclusions and Sue's input, we should all agree that to attempt anything based on the legal/equity title is fruitless. l have said contineously that it is the contract and it's performance that must form the basis for any action. We have enough evidence to prove that SPML, Preferred and London Mortgage Company sold us mortgage loans under conditions that were misleading. At least my mortgage runs for a period exceeding 5 years and nothing was ever mentioned to me that it would be sold on, (the equitable part), on the basis that it would be redeemed within 5 years. How can this be possible and legal? l am convinced that the whole mess can be unravelled by this single discrepancy between the loan and securitisation conditions. lf an investor expects my mortgage to be redeemed after 5 years and l expect the mortgage to run the CONTRACTED 35 YEARS, we have different objectives and the performance of the mortgage contract cannot be the same, i.e. the equity holder expects the equity of his investment to be redeemed after 5 years and l expect the mortgage to continue the full contractual term. This has nothing to do with risks, but, only to do with contractual conditions, expectations and performance. l would love to hear from Sue on this point and anyone else who wants to play the devils advocate, as this whole reasoning needs a thorough perusal.

Gustavius Rex

[Crapstone]

Just thought...what if the equity holders had have gone under? Does it pass back to SMPL (at what cost) or would a trustee be involved as it would surely be an asset of the equity holder?

 

I'm probably missing something obvious on that but thought I'd ask and make meself look a dork anyway!

[enoughisenough]

A non nocturnal comment from crapstone is this a first?I haven't the foggiest about your query so I guess that makes us dorks in arms.

[ryde]

was looking at the Eurosail prospecti ! on the Irish stock exchange which run to 200 plus pages some appear to disclose mortgage numbers some don't unfortunately .Then noticed that several were marked suspended,don,t know what this exactly means or its relevance to us but worth a look and investigation.

[Crapstone]

A non nocturnal comment from crapstone is this a first?I haven't the foggiest about your query so I guess that makes us dorks in arms.

 

Don't knock it ...it's my quiet time

[Suetonius]

l think, personally that is, that by now and with my earlier conclusions and Sue's input, we should all agree that to attempt anything based on the legal/equity title is fruitless. l have said contineously that it is the contract and it's performance that must form the basis for any action. We have enough evidence to prove that SPML, Preferred and London Mortgage Company sold us mortgage loans under conditions that were misleading.

 

Hello GR,

 

I would suggest creating a thread especially to discuss and debate the adverse effect upon a mortgage agreement following securitisation.

 

Thanks

 

Sue

[mercyblue]

I agree

[wot2do?]

 

Furthermore, I also came across this:

 

Gazette Website: PDF Navigator (Page 423)

"SOUTHERN PACIFIC MORTGAGE LIMITED 03266119 (K) 10/06/2009"

 

Gazette Website: PDF Navigator (PAGE 1)

 

"(K) DOCUMENTS DELIVERED BY A COMPANY UNDER SECTION 241 (ANNUAL ACCOUNTS)"

 

 

 

What does this mean in words I can understand

[Crapstone]

I think it just means that the documents have been supplied and the accounting requirements are up to date. Something which Companies House have yet to amend in due course.