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

[ryde 80]

GR Surely the whole point is that the investors holding only the beneficial title to everyones mortgage have absolutely no security for their investments at all they cannot take action against the mortgagors if they default,they are not receiving the returns on their investments,there is a danger the whole lot will get tied up in the lehmans bankruptcy the only thing they can do for their own security is to take legal action to recover the legal titles because their payments have been defaulted on, which then gives them control,is this not going on now in the high court and the american courts?The legal title is all as it gives the power of sale.

 

Who was the actual legal guarantor for the investors in these mortgage tranches,there must have been some underwriter or investment bank who carries the ultimate responsibility.?It must have been some arm of lehmans?Could someone clarify how this works PML/SPML SELL MORTGAGE POOL TO EuORUSAIL THE SPV WHO THEN SELL BENEFICIAL INTERESTS IN MORTGAGES TO INVESTORS' . EUROSAIL THEN PAY SPML/PML.

WHO ACTUALLY PROVIDES THE CAPITAL TO SPML/PML IN THE FIRST PLACE TO PAY THE MORTGAGOR?THE TRUSTEE APPEARSTO BE BNY.?WHO BEARS ACTUAL RESPONSIBILITY FOR THE HUGE SHORTFALL,WHERE DOES THE DEBT LIE?

Where is all this going and what is everyones' ultimate aim or object? To renegotiate your mortgage at a high st lenders rate?I bet all these posts are being monitored as its one of the first things you see when you do any search on the guilty parties capstone spml/pml who as long as they stay solvent are still registered at companies house(despite overdue accounts) are still legitimate in some way and in charge Everyones stuck with them unless someone wins a test case.I am involved in litigation with them now (and I DON,T EVEN HAVE A MORTGAGE WITH THEM) give me some ammunition about misselling unfair contract or anything and I'll fire it for you ,I will do anything to bring them down,they gave a mortgage despite a restriction being on the land register to 2 people on the dole with the idea that it would bypass the restriction (which in normal cases it would),the mortgage was missold the 2 people never filled in a form it was just signed, the rest (income etc ) filled in by the broker,no checks at all were made on income or the ability of the borrowers to repay the loan despite what it says in the eurosail prospectus ie.responsibility of pml/spml in approving the loans.the valuation of the property was at an undervalue because they knew the borrowers would default and now they are trying to repossess it and get around my restriction.the brokers fee was £2000 by the way.this has all been going on for 3 years.Apologies for that rant but it is just so frustrating these people always get away with it and live the life of luxury at others expense and misery.

Edited October 1, 2009 by ryde

[alisono 1]

I havent read all of the 76 pages so forgive me if this has been mentioned already. I have a mortgage with London Mortgage Company, on my deeds it's registered under SPML (Southern Pacific ) and my direct debit is Paid to Matlock Bank, where does Matlock Bank fit into this? I looked on the thread with the mortgages listed under Eurosail and my number and mortgage wasnt there.

[bustthematrix 361]

Hello Peeps.

 

This is not meant as thread high jack or any such thing but just so that people know that people are making waves on similiar issues in other parts of the world. This is a very popular thread and I wanted the maximum number of Caggers to see this...good news!!!! Very interesting indeed!

 

LANDMARK DECISION PROMISES MASSIVE RELIEF FOR HOMEOWNERS AND TROUBLE FOR BANKS

http://www.opednews.com/articles/LANDMARK-DECISION-PROMISES-by-Ellen-Brown-090921-894.html

 

I'm certain that there are ways to achieve the same results right here in the UK!!!

[alisono 1]

Bustthematrix, I have read this with interest and hopefully this could take off, perhaps the guys on the thread can get in touch again with Chris Choi and see if he's interested in this, we could all do with some relief from these sharks.

[I'm the bad guy? 13]

Great find Neo!

 

Pretty much proves, the lenders are no longer the owners of your mortgages, once securitised....but no doubt some will say otherwise.

 

 

ITBG?

'iwishihadtakenthebluepill'

[slgsue 42]

I too have the misfortune of having SPML/Capstone whatever they want to call themselves as a mortgage company!!!!

 

After they tried to evict me and speaking to my boss who used to own a very large brokerage, have been informed that I have a case for complaining against the sale of my mortgage as it was clear from the figures that we couldnt honestly afford the repayments and living at the same time.

 

Not sure what or how this can be done but feel that most of us who have to deal with these and I say this loosely "people" (I would like to use much worse words) are probably in the same boat. I am looking forward to getting my teeth into them and fingers crossed will have some luck.

[enoughisenough 350]

That's it. I have had enough of these clowns. if the courts won't protect us and the regulators are too frightened or too cosy to do their job there's enough evidence here and now to pull the plug on these greedy low life money grubbing parasitical ****. Watch this space.

[jansus 586]

I too have the misfortune of having SPML/Capstone whatever they want to call themselves as a mortgage company!!!!

 

After they tried to evict me and speaking to my boss who used to own a very large brokerage, have been informed that I have a case for complaining against the sale of my mortgage as it was clear from the figures that we couldnt honestly afford the repayments and living at the same time.

 

Not sure what or how this can be done but feel that most of us who have to deal with these and I say this loosely "people" (I would like to use much worse words) are probably in the same boat. I am looking forward to getting my teeth into them and fingers crossed will have some luck.

 

 

 

 

http://www.consumeractiongroup.co.uk/forum/repossessions/191027-were-you-mis-sold.html

[ryde 80]

I have a nasty feeling this is all heading back to the dreaded PENDER case again how can the USA case be applied here?In the eurosail prospectus does it not say that SPML PML retain the legal title and are some sort of trustees for the beneficial owners ie spvs then investors?

[enoughisenough 350]

Pender needs to be erased from the collective consciousness. It serves only to illustrate that if you fly a kite it will hit the pylons at some point and get toasted. They didn't pay their dues for 7 effing years. It is therefore a highly unusual set of circumstances in my view akin to Rankine.

 

Now, if someone with so called clean hands were to come before a court, I do not say that they would win, but my guess is it would be a lot more viable than anything the Penders tried.

[Suetonius 403]

Pender needs to be erased from the collective consciousness.

 

In addition to the Pender Court of Appeal Judgements (and legal precedent):

 

First a quick history lesson

 

5th January 1995, an order of possession was granted to Paragon Finance

 

21st January 2002, Mr & Mrs Pender applied unsuccessfully for a set aside

 

9th January 2003, oral application for appeal dismissed

 

17th February 2003, stay of execution granted

 

25th November 2003, application for permission to appeal

 

29th July 2004, limited permission to appeal granted

"On 29 July 2004 Jacob LJ granted permission to appeal to this court on the three issues raised in Mr Aaron's witness statement, viz: the title to sue issue, the implied obligation issue, and the extortionate credit bargain issue. He refused permission to appeal on the human rights issue."

 

27th June 2005, Appeal heard

 

31 January 2006, a petition to appeal was submitted to the House of Lords. The House of Lords refused to give leave to appeal.

 

2005 judgements, for discussion and debate:

 

The Title to sue

 

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.

 

7) As to Mr Page's reliance on section 136 of the Law of Property Act 1925, that too is in my judgment misplaced. He fails to distinguish between the right to sue at law for the mortgage debt and the proprietary interest created as security for its repayment. Section 136 applies only to the former.

 

Everyone should also ignore:

 

 

Difference Between America & UK securitisation

 

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

 

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

Her Majesty's Revenue & Customs (HRMC)

 

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

 

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

 

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

 

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

 

Capital One tribunial

 

As mentioned above. (please see point one)

 

MBNA Case

 

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

 

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

s.136 Law of Property Act 1925

 

"136 Legal assignments of things in action

(1)Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—"

 

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

 

and also ignore:

 

The House of Lords take on securisitation

 

http://www.publications.parliament.uk/pa/cm200708/cmbills/121/en/2008121en.pdf

 

Lords Amendment 6 would make clear that the provisions of clause 3 relating to onward sale of the loans do not apply to the creation or transfers of equitable rights that occur in a securitisation. Rather, it clarifies that clause 3 relates only to the onward transfer of legal title to the loans. The amendment ensures that the transfers of equitable interests that occur as a normal part of a securitisation are separate from the onward transfer of legal title, and which do not require the same protections.

 

Also ignore,

 

The Financial Collateral Arrangements (No.2) Regulations 2003

 

 

PART 2

 

Modification of law requiring formalities

 

Certain legislation requiring formalities not to apply to financial collateral arrangements

 

"(3) Section 136 of the Law of Property Act 1925 (legal assignments of things in action) shall not apply (if it would otherwise do so) in relation to a financial collateral arrangement, to the extent that the section requires an assignment to be signed by the assignor or a person authorised on its behalf, in order to be effectual in law."

 

And this person can be ignored, after all.. what does she know

 

"As Dr Eilis Ferran MA (presently Reader in Corporate Law and Financial Regulation at Cambridge University) points out in a book entitled 'Mortgage Securitisation – Legal Aspects' (Butterworths, 1992) to which we were helpfully referred by Mr Ali Malek QC (for Paragon) in the course of argument, if the transfer of the mortgages is not completed by registration, the SPV acquires an equitable title to the mortgage but the transferor retains the legal title, albeit as trustee for the SPV (assuming, as will usually be the case, that the full consideration has been paid). Dr Ferran goes on to point out that, for reasons essentially of administrative convenience and cost, transfers by way of securitisation are usually left uncompleted, but with provision being made for completion in certain specified circumstances, e.g. if the transferor persistently defaults on its obligations under the securitisation arrangements. Typically, such obligations will be contained in an 'administration agreement' between the transferor and the SPV. These general observations about securitisation (for which I am indebted principally to Dr Ferran's book) are not the subject of dispute in the instant case."

 

To place the above extract into context, Dr Eilis Ferran is a Professor of Company and Securities Law at the University of Cambridge:

As you would anticipate with someone with her credentials, she is published:

'The Place for Creditor Protection on the Agenda for Modernisaiton of Company law in the European Union' (2006) 3 European Company and Financial Law Review 178

'Transatlantic Financial Services Regulatory Dialogue' (with K Alexander, HE Jackson and N Moloney) (forthcoming European Business Organization Law Review Building an EU Securities Market (CUP, 2004)

'Financial Assistance: Changing Policy Perceptions but Static Law' [2004] Cambridge Law Journal 225 - 243

'The Role of the Shareholder in Internal Corporate Governance: Enabling Shareholders to Make Better-informed Decisions' [2003] European Business Organization Law Review 491 - 516

'Examining the UK Experience in Adopting the Single Financial Regulator Model' (2003) 28 Brooklyn Journal of International Law 257-307

'Dispute Resolution Mechanisms in the UK Financial Sector' [2002] Civil Justice Quarterly 135-155 (also published in a report to the Korean Stock Exchange, Self-Regulation in the Korean Securities Market Korean Securities Law Association, 2002)

'Corporate Law Codes and Social Norms - Finding the Right Regulatory Combination and Institutional Structure' [2001] Journal of Corporate Law Studies 381-409

Ferran and Goodhart (eds) The Challenges Facing Financial Regulation (Hart Publishing, 2001)

'Company Law Reform in the UK' (2001) 5 Singapore Journal of International and Comparative Law 516-568

Boyle and Birds Company Law (Jordans, 2000) (with Boyle, Birds and Villiers)

Company Law and Corporate Finance (OUP, 1999)

 

Employment History:

Reader in Corporate Law and Financial Regulation (2000 – 2005)

University Lecturer, (1991 – 2000)

University Assistant Lecturer, (1988–1991)

Director of the Centre for Corporate and Commercial Law, (April 1999 – September 2003)

Assistant Director, Centre for Corporate and Commercial Law, (1997–1999)

College Lecturer, St Catharine’s College, Cambridge (1986–1988 )

Trainee Solicitor, Clifford Chance, solicitors (1984–1986)

 

Qualifications

PhD, University of Cambridge, 1992, (by special regulations)

BA, University of Cambridge 1983 (Law Tripos First Class with Distinction)

 

Halsbury (as in Halsbury's Laws of England) can also be ignored, as it only says:

 

586. Securitisation of mortgages.

 

Securitisation is the sale of a package of mortgage debts to a corporate vehicle (the 'issuer') established for the purpose of issuing securities usually in bearer form such as bonds1. One or more mortgagees (the 'originator') may agree to sell debts and related security to the issuer. This effects an equitable assignment of the mortgages which is not perfected by notice to the mortgagors or by registration. The issuer is entitled to call for a legal transfer of legal title to the mortgages in certain circumstances such as the persistent default or insolvency of the originator. The issuer is given an irrevocable power of attorney to effect the transfer and for certain other purposes2. The originator retains the powers of the mortgagee, including the right to possession3 but agrees to act in accordance with the instructions of the issuer in relation to matters such as interest rates and enforcement. The undertaking and assets of the issuer, including the mortgages, are in turn charged in favour of a security trustee for the benefit of the holders of notes or bonds issued by the issuer4. The security trustee is given custody of the charge certificates or, in the case of unregistered land, mortgages and title deeds, and is given an irrevocable power of attorney to effect a legal transfer of the mortgages.

 

1 See companies; financial services and institutions.

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

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

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

 

Great find Neo!

 

Pretty much proves, the lenders are no longer the owners of your mortgages, once securitised....but no doubt some will say otherwise.

 

 

ITBG?

'iwishihadtakenthebluepill'

 

The some that would say otherwise would be:

 

 

• House of Lords
  
• Legislative Law (Law of Property Act 1925 & The Financial Collateral Arrangements (No.2) Regulations 2003)
  
• Dr Ellis Ferran (Professor of Company and Securities Law at the University of Cambridge)
  
• Halsbury
  
• High Court of Justice (MBNA v HMRC)
  
• Her Majesty's Revenue & Customers (HMRC)
  
• Manchester Tribunal Centre (Capital One v HMRC)
  
• Court of Appeal (Paragon v Pender 2005)
  
• High Court of Justice (Paragon v Pender 2003)
  
• Trust Law
  

 

But what do they (can list more if required) know...

Edited October 2, 2009 by Suetonius

[enoughisenough 350]

With the utmost respect Sue ( and I sincerely mean that) these are arguments and evidence that you have posted on any number of ocassions anyone suggests Pender might not be the be all and end all of this.

 

There is not the faintest possibility of anyone even beginning to crack any of your arguments because your profuse posting of links with hundreds of pages of dense legalise is impossible for the average cagger to digest. In other words your amazingly valuable contributons are lost on most because you always deliver a sledgehammer. This does not help anyone.

 

Bearing in mind that I'm sure you are one of us could you please help by posting in bite sized chunks and please explain the relevance of each link posted ?

 

I'm sure you will appreciate the importance of this to those who are looking for help support and guidance . There is no way I will have it said that you are furthering a lenders agenda. You know that anyway.

 

By the same token you also know that the law is organic and that what was good for yesterday may not be good tomorrow. The practice direction 1966 takes care of that.

 

Neither criminal nor civil principles or precedents stand still and I still say THE PENDERS HAD IT COMING.

[ryde 80]

POST BY SUETONIUS^^^^WHAT A CRACKER.!!!!!!!!^^^^GENIUS everyone now knows where they stand yet again instead of delving into flights of fantasy! .So everyones best hope is a possible complaint to the F.O.S. believe me they are good if you have a genuine complaint,they take a year to hear it and in some cases any repossession action is suspended whilst they look at your complaint just think if they were inundated with complaints about this lot, there is nothing to lose by giving them a go.I got a repossession action cancelled and the mortgage arrears capitalized and switched to interest only when the building society just would not listen,this was all down to the F.O.S.(MIND YOU IT WAS A PROPER BUILDING SOCIETY!who actually subscribed to the scheme)

The only other hope is the current high court actions where the investors are trying successfully to lever away the legal titles from the evil (lehman) empire,which is currently being appealed by lehman

.Just google the eurosail prospectus and the bits you will understand is how cleverly this lot have tied everyone up it even states that they(spml and pml) are agents and can act for the spv in repossessing the asset ie your home.

 

.Are pricewaterhouse trying to renew their administration which expires after a year?

Whatever happened to the capstone spml pml sale and WHO actually was the person or entity putting them up for sale?Price waterhouse? if so what power or legal standing do they have to actually put up for sale 3 seperate limited companies if these are supposedly seperate solvent individual legal entities?not in administration?

 

WHERE THERES A PLAN THERES HOPE.

Edited October 2, 2009 by ryde

[I'm the bad guy? 13]

Suetonius, playing devils advocate, please continue.

 

They say facts are subjective towards a pre-determined outcome(s).

 

In the absence of SuperSleuth....may you return to us soon.

 

1. If there is True Sale from the lender to the SPV, then the SPV retains the legal title to the assets. Yes or no?

 

2. If the SPV can create a legal charge with the Trustee, then as a truism, the SPV must have had the legal title to the assets. Yes or no?

 

3. The SPV is 'bankruptcy remote' in the securitisation process. Yes or no?

 

4. Under the LRA 2002, section 27(3)&(4), the SPV has a legal duty to register its interest as the legal title holder in a true sale. Yes or no?

 

5. The Mortgage Sale Agreement would provide absolute proof, of whether there was a true sale of the assets, from the lender to the SPV? Yes or no?

 

 

ITBG?

Edited October 3, 2009 by I'm the bad guy?

[ryde 80]

itbg see suetonius's post above difference between american and uk securitisation this is absolutely and unfortunately correct in fact in the eurosail prospectuses it states specifically that the sale is subject to uk not usa law,it seems they have not surprisingly thought of everything ,the more you read and eventually understand about these prospectuses is how bullet proof they have made them,I JUST CAN'T FIND ANY ANSWER WISH I COULD.,HOPE YOU OR SOMEONE ELSE CAN BUT WE SEEM TO BE CLUTCHING AT STRAWS.

[enoughisenough 350]

Hi all

 

Suetonius has made his points very clearly, repeatedly and with much authority. There is endless discussion of these points going back at least a year. The position Suetonius adopted at the beginning is the same one he holds now. He wants some one to offer something that will challenge the points he has raised. Thus far only Superslueth has done this and since Supersleuth has taken to the mattresses it is down to others to take the argument forward.

 

If I can follow my own advice to Sue (the advice about breaking things down) the argument goes something like this (trying to digest as much as possible). The title to sue approach is a dead duck because in English law the assignment of a disposition of land may be legal (absolute) or equitable with the beneficial part being split from the legal part. Numerous authorities have held this to be so. It may be that there are additional requirements of which we are as yet unaware which renders the exercise null and void if those requirements are not met. The Lawyers at LR and CH would probably have a better idea than we do. What we are aware of is the following. They were so busy printing the funny number money they forgot to dot the Is and cross the Ts. Just take one look at your mortgage deeds and you'll know what I mean. PAGES ARE MISSING AND THEY AREN"T EVEN SIGNED. Now Suppose Sue is wrong. Then we need to find out where and why, until we can do that Sue's position is the position as that is where the oppo would come from...

 

Now suppose Sue is right - look at the authorities. That doesn't mean that the perfectly lawful exercise of securitisation along these lines was done in accordance with the law. SEE where I am coming from on this? Trust me they have made big mistakes because they never ever thought that this would come back to bite them on the arse.

 

All UK securitisations prior to 2003 required notice to us borrowers but some Statutory Instrument issued by parliament removed this requirement. I'll try to find the link. Now given that Pender's mortgage securitisation predated this I think that this is a critical piece missing in the Pender jigsaw. Were they given notice and did they consent to the securitisation of their mortgage and the disposition of an interest in land. I haven't found anything In Pender that says Paragon were open about this aspect of their mortgage contract or that they sought and gained the consent of the Penders for such a disposition. (Sue and I had an exchange on the 2003 SI in which I concluded correctly I believe that the relevant SI was the green light for mass securitisation)

 

Sue's multiple authorities point in one direction. The assignments are equitable, not absolute. I believe that In the US it is much more clear, hence the millions of cases settled in the homeowners favour. The only UK precedent thus far is Pender and until this issue is taken to the Law Lords that is the way it is going to stay unless someone can demonstrate to the Court of Appeal that the decision in Pender was per incurium.

 

However not even Sue himself is immune from being convinced that beyond the SPV TRUSTEE ORIGINATOR legal relationship in respect of split ownership there are many problems. I remain convinced that there are cracks in this carefully constructed legal edifice. The sale, equitable or otherwise must be registered and is studiously and openly ignored.

 

“Neither the Issuer nor the Trustee currently intend to effect any registration at The Land Registry of England and Wales or any registration or recording in the Registers of Scotland to protect 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.” [/i]

 

I can tell you all now you will get your butt kicked in court if you even mention securitisation.

 

Leaving Pender to one side then the assignment protects the legal rights of the Originator and those rights are guarded by the TPA (In most cases Capstone). The beneficial interest has been sliced diced packaged and sold as 'notes' - whatever that means. This will be what the investors are trying to find out in the courts at the moment and it looks as they have been shafted every bit as much has we have. I don't care if they are cash rich off shore tax avoiding individuals or entities. They've got their dues on the backs of our suffering. However some of them will be pension funds and the like.

 

What is happening now is that this is all being decided without our input. So we have to get busy and make a decision about the type of response we wish to make and what legal basis there is or may be for protecting our interests. The lower court's wont do it (I had a judge tell me the court had no jurisdiction to decide upon the lawfulness of their charges and gently 'corrected' me when I mistakenly thought securitisation meant something other than the lender has a charge against the property - patronising prat) The FSA won't do anything or they would have done it by now. Parliament as we know is useless, venal and corrupt. We need a heavyweight to fight on commonly agreed ground.

 

This has of course caused problems in the past here. Can I suggest the following as the plan

 

1. Have all the formalities for registration, properly executed deeds and registered charges been properly and fully met.

2. Operation and performance - the impossibility of contractual fulfillment by one party.

 

Guys, as you know we need to make a properly organised fuss or we'll be completely left out of however they decide to sort this mess out and you can bet your last they wont be thinking of us. Do we have audience or representation rights with PwC? Does anyone know?

[ryde 80]

The problems are that everyone has their own individual gripe,we cannot act collectively or as any sort of force because of this and the only way to any success is weight of opinion in sufficient numbers.I keep saying complain to the Financial Services Ombudsman if you have a legitimate complaint.

1)its free

2)they have a great deal more clout than you think`

3)repossession may be stopped

4)the lender has to pay them £500 to hear YOUR dispute

5)The more complaints they hear about this lot the more its going to cost them ie capstone etc in answering the complaint because it will tie up personell

6)WHAT HAS ANYONE GOT TO LOSE ..... AND A COURT AND THE REGULATORS(F.S.A.) ARE GOING TO MUCH MORE NOTICE OF THE OMBUDSMAN THAN ANY INDIVIDUAL.see the ealier post by jansus these people get results.

 

EIE what exactly is your complaint

Edited October 3, 2009 by ryde

[ohitsonlyme 35]

WOW a fascinating interesting piece of work.

I cannot add legal argument to this but I do have a BTLet Mortgage that has been passed from Edeus to Oakwod and now Mars capital so I am Keen to help in which ever small way I can Mars are being nasty about arrears on my Mortgage and not following guidelines at all

Ohitsonlyme

[enoughisenough 350]

That the fos won't investigate until they see under separate cover the words full and final response and that capstone won't use those words. That's my complaint.

[ryde 80]

EIE. I like the way capstone speak for spml and pml I suppose they have this authority tell the fos they wont give you a final response because they know the complaint will then be referred to the fos.ask capstone directly for their final response by return if they dont respond send copy to fos saying their lack of response is deliberate. for the above reasons.

[verycatchy7939 1]

Hate to say this but we not going to get anywhere sitting around posturing on here.

It time we as activists went to our local mp and MR Darling, and dare i say it watchdog or something about this shower how far this will get us who knows , but we got to act we got move is anyone with me or are we going to chat on here till they have our property

[Suetonius 403]

All UK securitisations prior to 2003 required notice to us borrowers but some Statutory Instrument issued by parliament removed this requirement. I'll try to find the link. Now given that Pender's mortgage securitisation predated this I think that this is a critical piece missing in the Pender jigsaw. Were they given notice and did they consent to the securitisation of their mortgage and the disposition of an interest in land. I haven't found anything In Pender that says Paragon were open about this aspect of their mortgage contract or that they sought and gained the consent of the Penders for such a disposition. (Sue and I had an exchange on the 2003 SI in which I concluded correctly I believe that the relevant SI was the green light for mass securitisation)

 

Hello EIE,

 

I think that you might be thinking of:

 

 

The Financial Collateral Arrangements (No.2) Regulations 2003

 

 

PART 2

 

Modification of law requiring formalities

 

Certain legislation requiring formalities not to apply to financial collateral arrangements

 

"(3) Section 136 of the Law of Property Act 1925 (legal assignments of things in action) shall not apply (if it would otherwise do so) in relation to a financial collateral arrangement, to the extent that the section requires an assignment to be signed by the assignor or a person authorised on its behalf, in order to be effectual in law."

 

This only means that the notice does not have to be signed by the assignor. As I understand it, it does not remove the actual requirement for an express notice of assignment to be sent to the borrower.

 

I do apologise for my use of a sledgehammer, I just find it frustrating that as soon as any progress is made in relation to the "performance of contract", someone will try to divert the debate back to equitable v legal assignment, without adding any new points that have not previously been discussed at length.

 

We have the prospectus which outlines the lending policy, so people can check if their mortgage was provided to them inline with this policy. It also details under what circumstances the equitable title must be repurchased. It could be argued that these circumstances may effect the willingness of SPML/PML (Capstone) to assist borrowers etc.

 

The debate needs to be moved forward, not continually taken three steps back or left to go around in circles.

 

ITBG?, I have previously expressed my personal views with regard to people wanting me answer questions, when they don't answer mine. I am sorry, I do not give yes and no answers, as they are meaningless without explanation or given in the proper context.

 

However, I will answer your questions in due course... (may not be today, as I am busy with other matters).

[Suetonius 403]

That the fos won't investigate until they see under separate cover the words full and final response and that capstone won't use those words. That's my complaint.

 

The FOS should investigate the complaint, if capstone has not provided you with a final response after 8 weeks.

[enoughisenough 350]

Originally posted by Suetonius

 

I do apologise for my use of a sledgehammer, I just find it frustrating that as soon as any progress is made in relation to the "performance of contract", someone will try to divert the debate back to equitable v legal assignment, without adding any new points that have not previously been discussed at length.

 

Nah, it's fine actually. Disregard my sledgehammer post. It's there for people to go through if they want and tell you why they think you are wrong.

 

Let's leave it at that. Thanks for posting the SI. I just want to go back to the point at which we debated it and have another look. I certainly remember thinking that it removed any possible grounds for challenging securitization on the exhaustively discussed basis you referred to above. That said JonCris has been pateintly pointing us in the right direction for months. Performance.

 

 

Ryde and Sue,

 

Yes that's where I was going with this next but the FOS have put a spanner in the works. I have to have a separate F&F for each distinct complaint. Typically in their last response they dodged those things they couldn't explain and I got some dreadful embarrassing dirge of a response. Time to put them on strict notice of exactly what I require, copy in the FOS, so they know that's what I've done and then send off the papaerwork.

 

Notwithstanding Catchy's stuff above Catchy would do better to recognise that there are many of us here who have done far more than talk. Of course anonymity must prevail so I can't say who has DONE what. You're very much mistaken Catchy if you think we are nothing more than a sewing circle. I also folowed you advise and rang them up to ask for charges back and they behaved as I predicted they would. They told me to get stuffed.

[ryde 80]

Without wishing to appear to be a sycophant he,s right again!^^This needs to go forward and we should all know now legally exactly where we stand ie stuck with PML/SPML AND CRONIES.

The prospectus does outline the lending policy but is this not geared for the peace of mind of the investors? IT REASSURES THEM THAT THE lenders are prudent and make proper checks.

This is a joke because they certainly did not use the lending criteria stated in my particular case

The broker sent a blank form stating sign here and here and then all the other details were filled in by the broker or lender ie pml/spml there were no income checks ,both people were on the dole and they gave them over £100000 remortgage which was defaulted on.PML it appears would give almost anyone a mortgage so they could just add to their list and sell it on via eurosail ie sell on a load of toxic debt, if there was any comebak repossess the property if in default with whatever excuse; or keep banging in high administration fees forcing any borrower in arrears into repossession,the property was usually undervalued in any case. WHAT DO WE DO REPORT THEM FOR THE CROOKS THEY ARE TO THE INVESTORS?

Edited October 3, 2009 by ryde