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

[enoughisenough]

Millions of borrowers face unfair fines

[enoughisenough]

The securitisation issue is passé . I say this in respect of the following.

 

1. Everyone knows that virtually everything that could be securitised was securitised.

 

2.equally everyone knows that the process resulted in full consideration.

 

3. it is also self evident that no one except a muppet or a greedy calculating investor would touch these worthless bits of paper with a barge pole. The issue of rights in the UK is not dead, merely lacking definite clarity.

[enoughisenough]

Hi Uneverdid.

 

I don't know why they even bother lying like this. You took on an SPML loan around say 2005. Was this a second charge or did it get your existing lender totally off your back? Don't answer unless you want to - just guessing what is likely here?

 

The securitisation SPV in 2005 was called Southern Securities (05-03 for example). The 05 bit refers to the year and the three refers to the quarter. In this case then around October 2005 the mortgage was packaged up with all the other ones and sold as investor notes.

 

If it was 2006 there were only 2 SPML/SPPL SPV issues under Lehmans Bros heralded Eurosail programme, which at the time was described in the corporate propaganda bull**** as 'exciting' etc. Look at Lehman's now.

 

This is the reason for all the grief we are getting but it would have come anyway because they had no intention of letting the mortgage run for the full term of the agreement. The notes must be redeemed on about a five year average to satisfy the greedy investors. My heart sank the other day when I heard Broon criticising the bonus culture and arguing that their bonuses should be tied to long term success of about five years. This hugely disappointing egomaniac has just given the green light for yet more of this nonsense. I wish there was a government or a politician who had the balls to step in and just offer mortgages at BoE +1% and kill off these predators once and for all. (oops I'm rambling).

 

So, your mortgage was securitised, they are lying and they should effing well grow up.

 

Oh and one final point, if securitisation is such a straight deal, perfectly legit and above board as some argue why all the denials?

 

They could just say a la Suetonius "Yes we securitised your mortgage but still hold the beneficial rights in event of default. This is a perfectly legitimate transaction in UK law."

 

But they never ever do, do they? What exactly are they afraid of?

 

If yours was 2006 you have them bang to rights because Eurosail will (99% certain here) appear on your statements

[enoughisenough]

Redeeming the notes means one of three things:

 

1.You remortgage your remortgage which they have sold on and been paid in full for already, usually ending up back with Capstone anyway, a kind of never ending hell until they've pummeled you into the ground.

 

2. You win the lottery and pay the **** off.

 

3. They repossess.

 

It makes me sick that anyone anywhere could have allowed this to go on

[enoughisenough]

Hi JC.

 

I must confess I hadn't considered this. Is this tantamount to saying Sue rather than supersleuth is right but even the lenders can't risk it because nobody actually knows, akin to the bank charges. If so the courts and judges need a sharp wake up call. No repo should be allowed to proceed where this issue remains an unknown quantity. If all the authorities Sue has cited are watertight why won't the lenders make the simple statement? What CAN they be afraid of.

[enoughisenough]

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

supersleuth had the measure of these though.

 

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

[enoughisenough]

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

 

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

[enoughisenough]

Good morning Suetonius

 

you're absolutely correct that not a single notice of assignment has seen the light of day. This is only possible in two discrete circumstances. The first us that it is along with other material evidence concealed from the borrower and the second is that it doesn't exist because the assignment is equitable. What puzzles me greatly is that an equitable assignment would require no amendment to the registry. So why does every single prospectus I've seen state that they currently have no intention of making that change. This is odd akin to saying I currently have no intention of ping something I am not required to do. I have to say I find it very bizarre.

 

As with other Aspects of personal finance during the boom such as unsigned credit agreements I think it may be the case that the legal framework and the procedures used were not watertight. They were too busy printing money for themselves. Just my thoughts for what their worth.

[enoughisenough]

I think psychologists would call it a Freudian slip. A very simple way forward would be to see if a successful criminal prosecution could be brought under the Land Registry Act 2002, failure to register a disposition of land. If that failed then you are almost certainly correct. If on the other hand it suceeded...

[enoughisenough]

Naughty boy. Where have you been all night then!

[enoughisenough]

Discharge by way of frustration anyone?

 

Has the supervening event frustrated the object of both parties by so changing the circumstances that to hold the promisor to it would be to hold him to something which though not impossible, is something different from that which he originally promised to do?: see

 

Tamplin SS Co Ltd v Anglo-Mexican Petroleum Products Co Ltd (1916)

[enoughisenough]

OK The FSA will take individual complaints if they are about unfair terms. Not very widely publicised as I found this in a document from last year here, and they told me very recently they don't do individual complaints but still asked me to respond to their email. All very strange.

 

http://www.fsa.gov.uk/pubs/other/consumer_contracts_report.pdf

 

email them at [email protected]

Edited July 19, 2009 by enoughisenough
added emphasis

[enoughisenough]

Hi Suetonius

 

May I clarify.

 

you're absolutely correct that not a single notice of assignment has seen the light of day. This is only possible in two discrete circumstances. The first us that it is along with other material evidence concealed from the borrower and the second is that it doesn't exist because the assignment is equitable. What puzzles me greatly is that an equitable assignment would require no amendment to the registry. So why does every single prospectus I've seen state that they currently have no intention of making that change.

 

That should of course had read:

 

"The first is that, along with other concealed material evidence, they conceal the notice"

 

Lest it be thought otherwise I still think they are hiding something. Why get so jumpy when securitisation is mentioned, why have a different beneficiary on the insurance than the originator, and why say they have no intention of perfecting the sale with the Land registry when for an equitable assignment they wouldn't need to? All very bizarre if you ask me.

 

Has anyone ever received anything they might be required to by these sub prime mongrels. After all they're supposed to give me notice of their fairy tale charges but they never do. Does that mean the charges don't exist?

[enoughisenough]

Sorry Sue,

 

EIE is not the only person to have posted that notice of assignments are not sent.

 

1) Can we all concur that a notice of assignment is required for a legal assignment ?

 

Not being picky here I just want to be clear. Could you define

 

'sent' and 'required'. BY which I mean from whom to whom in what form and by operation of which statute. Hope that makes sense. Honestly I'm not being picky here. Asked in good faith.

[enoughisenough]

There is also this

 

http://www.fsa.gov.uk/pubs/other/good_practice.pdf

 

Notwithstanding other debates every cagger with sub-prime garbage for a mortgage should be putting their lender on notice for their outrageous charges designed quite deliberately to create default, enable repossession and early redemption of the notes.

[enoughisenough]

Now that I have clarified the question, maybe you would like to be the first to answer it EIE ?

 

When Suetonius says jump would everyone please remember to ask how high before doing so?

[enoughisenough]

s.53 of the same act.

 

It should be noted that an equitable assignment of an equitable

interest in a receivable (as opposed to an assignment of the receivable

itself) must be in writing to be enforceable.

 

No notice there either. Does that mean we can all agree that it's not equitable or legal?

[enoughisenough]

I just didn't expect to have to drop things in order to answer first.

 

Truce?

[enoughisenough]

The Financial Collateral Arrangements (No. 2) Regulations 2003 section (4) 2:

 

 

So this was the green light for the securitisation overdrive?

 

How about sub prime garbage consumers prior to this regulation?

 

Still not conceding though...

[enoughisenough]

Anybody think mass non-payment might work. It certainly did for the poll tax.

 

It would be great to organise one month where all payments due were donated into a fighting fund instead. And we tell them that they can have the money when they stop the charges. My only reservation is that it's really hard to get co-ordinated action going.

[enoughisenough]

Mmm... Now why would that be? The fact is that you have just as much documentation relating to this as they do. Stick to your guns tell them you are not satisfied and you will be sending a copy to the ICO for his information.

 

The next step is the sols. Unless they sort it out it's off to the law society SRA whatever the latest complaints bureau is. It changes very ten bloody months no doubt in the aim of confusing the plebs! Don't be confused. They rely on it.

[enoughisenough]

Oh and I just noticed it was a phone call! Never speak to these people on the phone except to say all business between us must be in writing. I do not conduct financial business by means of telephone conversation except at my discretion.

[enoughisenough]

Hi all

 

General notice

 

I am concerned to note that there is what appears to be new misleading information on any complaint form you submit to the Financial OMbudsman Service.

 

The information states:

 

"if you are complaining on behalf of a business charity or trust please fill in these details, it's annual turnover, annual income or net asset value( at the time you first complained)*

 

*We will need to see evidence of this. If it's over £1m, sorry, we won't be able to help you.

 

OK so just to clarify what this means.

 

1. It does not affect our right to complain.

2. It refers not to the businesses we make complain against but to businesses, charities or trusts who might want to make a complaint.

3. There is no impact on your ability to complain. You can still use the FOS.

 

Hope that's clear.

 

Cheers. EiE. Keep the faith.

[enoughisenough]

Hi Uneverdid.

 

They are an absolute pain. They never let up with their so called tactics. What these tactics do though is bury them into a deeper hole than they already are.

 

I recommend the following but hope that other caggers will also contribute constructive advice.

 

1. Insofar as their totally unlawful charges go use this:

 

There are numerous authorities for regarding such charges as unfair, and therefore not binding on the consumer.

 

In 1993 the European Union published a Directive on unfair terms in consumer contracts (Council Directive 93/13/EEC). The Directive was implemented in the UK via the Unfair Terms in Consumer Contracts Regulations 1994, which came into force on 1 July 1995. The regulations were amended in 1999, in the form of The Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999 No 2083) (the Regulations).

 

In respect of Schedule 2 of the regulations a non-exhaustive list is provided of terms which may be regarded as unfair. The most relevant in the instant case are the following:

 

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;

 

(m) giving the seller or supplier … exclusive right to interpret any term of the contract;

 

(o) obliging the consumer to fulfil all his obligations where the seller or supplier does not perform his;

 

(q) excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.

 

Regulation 8(1) ‘An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer’.

 

MCOB 12 prevents a firm from levying excessive charges (which includes interest).

 

5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

12. –(3) The court on an application under this regulation may grant an injunction on such terms as it thinks fit.

 

The continued application of such charges is in breach of the Financial Services Authority's Treating Customers Fairly initiative. The final deadline for implementation of this initiative by all licensed firms was December 2008.

 

"More generally, as my earlier brief example of the mortgage arrears fee shows, the application of extensive fees for customers already experiencing debt problems may not be fair treatment. Certainly it does not always sit well with the sympathetic and positive treatment of those in hardship.”

 

Source: speech by Tony Boorman, decisions director and principal ombudsman, at the CML's complaints-handling seminar –London, 12 March 2008.

 

Lesley Titcomb, FSA Director responsible for the Mortgage Sector, also said:

 

“As our data shows in these current market conditions more people are struggling to meet their mortgage payments and it is vital that firms treat them fairly. This means paying attention to their individual circumstances and not repossessing their homes when there may be an alternative solution. Repossession has to be the last resort. The FSA’s programme of actions to address the problem areas, includes a closer examination of charges, in particular the circumstances in which these are levied, and whether they are compatible with Treating Customers Fairly”

 

*Source: FSA reiterates call for firms to treat customers fairly in current market conditions - FSA/PN/087/2008 - 5August 2008

 

The Regulations are clear. They are binding on all courts by virtue of emanation from a Council directive. The regulatory authorities are in broad agreement. There must be fair treatment of consumers.

 

2. Complain immediately to the Information Commissioners Office.

 

[email protected]

 

3. The same as 2!

 

Give them absolute hell. And while you are on make a complainnt to the OFT the FSA and the FOS.

 

Office of Fair Trading

Fleetbank House

2-6 Salisbury Square

London

EC4Y 8JX

 

The Financial Services Authority (Mortgage Compliance Unit)

25 The North Colonnade

Canary Wharf

London E14 5HS

 

[email protected]

 

The FSA and the OFT will tell you to get lost but that doesn't matter. They have statutory duties and the more complaints they receive the more they are under pressure to do something. The point is not instant remedy. The point is constant pressure. Keep doing this and we will break through.

 

Keep the faith. EiE.

[enoughisenough]

Hi dotty

 

Will try to be along soon.

 

Uneverdid

 

please don't speak to them on the phone unless you are recording it.