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

[supersleuth]

Hi littledotty 27

 

This is what happened to the Olive.Family, but they found out when the baliff's turned up on the door step to throw the family out! Horror of horror....recommend you read her thread ...sounds like this is a shenangin and a habit of these companies.

 

Just gotta watch out at every turn and never assume that these companies will bide by a court order. It is my experience too, that they don't respect or abide by court orders whatever the order is.

 

Take care

Supersleuth

[supersleuth]

Hi

 

You're right. It is a breach of the Judge's order and strictly speaking it is a contempt of court. Think that the answer may be because the borrowers don't complain to the court about the non-compliance with the order. It is understandable, the borrowers are too busy trying to fight off the big issue which is the repossession order itself.

 

In my case I got two (legal) costs orders against my mortgage company and (after a long story), they only bothered to credit back the costs 6 months later. Haven't yet checked the figures yet, but during that time, they would have been charging compound interest on those legal costs(more overcharging). The process for borrowers is an endless uphill battle.

 

Upshot is, that I never assume they will abide by the order.

[supersleuth]

Hi Littledotty,

 

Re your question on the "deeds":

 

In order to answer the question it is probably best to go through some of the terminology (most of which you may already know, but it will help avoid confusions).

 

When you take out a mortgage there are two important legal documents (1) the mortgage loan agreement and (2) the Mortgage Deed (sometimes referred to as the Deed of Mortgage or a Legal Charge - it's all the same thing).

 

The lender will send the Mortgage Deed (which you signed) and ask the Land Registry to make an entry on the Land Registry Charges register which will register the fact that you have given them a "Charge" against your property (i.e. the Charge that you granted to the lender when you signed the Mortgage Deed).

 

The Land Register is made up of three parts. The first part is the "Proprietorship" register. You will be registered as the legal owner of the property i.e., the physical property. There is another part called the "Charges" register. This part will record any charges that you have given a lender against your property i.e., a mortgage.

 

The excerpt that you have quoted in your post is actually the text that appears in the Charges Register of your property. It is not an excerpt from the Mortgage Deed.

 

Next, to anwer you query regarding the dates on the Charges Register. When you took out the mortgage in May 2005, you will have signed a Mortgage Deed on or around May 2005.

 

Your instinct is correct - there does appear to be something at odds with your Charges Register. This is because, your register states that the charge (i.e. your Mortgage Deed) is dated 11 January 2006. This is some 7 months after you took out the mortgage and so it seems very odd that the Mortgage Deed is dated 11 January 2006 as it should have been dated 21 May 2005.

 

The date that is in brackets beside note 3 is 30.1.06. That is the date on which the Land Registry actually put the entry on the register. So generally, you don't need to concern yourself with those dates they just tell you on which date the Land Registry administrators did the updating.

 

On the 20 June 2006, SPML informed the Land Registry that they had bought your mortgage contract and mortgage deed from LMC and therefore, SPML are now the "proprietor" i.e. owner of the mortgage that you granted to LMC. Because SPML have informed the Land Registery that they now own your mortgage, the Land Registry administrators have updated the Charges register to reflect that SPML are the "proprietor" (owner) of your Mortgage.

 

Going forward:

 

Call the Land REgistry and ask them for a copy of your Mortgage Deed. The Land Registry will have a copy of your Mortgage Deed on their records. When you get the copy of your Mortgage Deed, check to see that it actually the Mortgage Deed that you signed and check the dates. It looks like there is something wrong with your Mortgage Deed because your deed could not have been dated 11 January 2006.

 

Get the copy of the Mortgage Deed from the Land Registry first before you query the dates with SPML etc. In my experience of securitisations I have known mortgage companies to loose Mortgage Deeds and if that is the case, then they can't have the charge registered at the land registry without you executing a new mortgage deed. You won't find out what's been going on with your Mortgage Deed until you see a copy of it.

 

Second, if you really want to do the paper trial - ask the Land Registry to provide you with a copy of the TR4 that SPML sent to the Land Registry such that they became registered as the proprietor. The Land Registry TR4 form is a form that is used to transfer the legal title of one mortgage proprietor to another. I.e., LMC transferred its legal title to your mortgage to SPML when it signed the TR4. SPML send that TR4 to the Land Register and that's where the administrators get the information to let them know to update SPML as the new owner of the Charge as from 20 June 2006.

 

To understand the TR4 form just remember that it is analogous to the TR1 which you may be more familiar with. The TR1 is used when a homeowner sells their house. The seller signs a TR1 (transfer form) and the buyer uses that form to send to the Land Registry to inform them that they are now the new proprietor i.e. onwer of the (physical) property such that the land registry updates the register to remove the seller's name from the register and the updates the register with the buyer's name to show that the buyer is now the new owner and consequently, they have their name registered on the "Proprietorship" part of the register.

 

In summary, if you've believed that the Land Registry is your Mortgage Deed, that will be the source of confusion. They are entirely separate documents. So call the Land Registry and get a copy of your Mortgage Deed and check that the deed is, in fact, the Deed that you signed.

 

Hope this helps and let me know what happens

Supersleuth

[supersleuth]

Hi Littledotty,

 

If SPML are the Claimant and your contract is with Matlock, then when you get to court, you should tell the judge that you do not have a contract with SPML and therefore SPML have NO CONTRACT THAT THEY CAN ENFORCE AGAINST YOU and consequently, the case that SPML have brought against you should be dismissed.

 

However, SPML will most likely say that Matlock assigned the contract to SPML and therefore they are claiming as an assignee to the contract.

 

Then you say to the Judge, that if that is the case then they must prove it!! They must first show the court and you that the contract was assigned to SPML such that SPML have legal standing (locus standi) to bring a contract claim against you.

 

The must prove the assignment before the court can give them any order against you.

 

In the meantime, DO NOT sign a new contract with anyone else. These contracts are assigned from the original lender and any contract that you may subsequently be offered will more likely be worse that the contract you already have.

 

For full details on the locus standi issue search some of my other posts. I've written quite alot on this subject.

 

Supersleuth

[supersleuth]

One final point. It is interesting that the Matlock T&C do not mention any transfer rights. Therefore, point this out to the judge and use it as support for your contention that SPML have no contractual rights that they can assert against you.

 

Chances are the the pleb that is acting for SPML will have no idea what is going on and you may have a chance to get the case dismissed. Try it - go for it.

 

But note, that even though there is no contractual provision, there is a statutory right for the lenders to assign. It is section 33 Land Registration Act 1925 HOWEVER, the LRA 1925 was REPEALED in October 2003. The Land Registration Act 2002 repealed the 1925 act.

 

So from the documents that you have, you must put your argument together and hopefully, you could use this to get the SPML case dismissed.

[supersleuth]

Hi Campari2

 

You raise some very good points. You've hit on an important point in that there is a difference between the legal doctrines of repudiation and recission. One difference is the common-law remedies that can be sought against the breaching party when there is a recission and when there is a repudiation.

 

Another difference is that when contracting party repudiates the contract, neither party is obliged to perform the contract any further.

 

It would need some further legal research, but if the act of bringing a repossession claim was deemed to be a repudiation of the contract, then it would follow that the borrower would be under no obligation to further perform the contract. This means, that for those people who are being chased for alleged shortfalls following the sale of their repossessed property could argue that the repossession was the lender's repudiation of the contract and if so, could tell the lender to take a hike for any further demands.

 

It is interesting to me that in the U.S.A., we hear of Foreclosure actions whereas in the U.K. the action is Repossession. Both the US and the UK are common-law jurisdictions (much of the US law being adopted from England historically anyway). Repossession and Foreclosure are two different remedies that the lenders can choose (out of a possible 5 remedies that the lender can choose to assert against the borrower). In a foreclosure action, the repossession of the property is the end of the matter whereas in England, repossessed borrower are hounded mercilessly for years and years after the repossession.

 

To develop the point about penalty clauses, it is the equity jurisdiction of the courts that has a rule that prohibits the enforcement of penalty clauses. This is because in contract-law, the remedy of damages is a common-law remedy. The equity jurisdiction was developed to aleviate some of the injustices that could result from the strict application of the common-law. The legal maxim is that equity follows the (common) law.

 

Thus, the common-law remedy of damages that are available under contract law are that contracts may make provision for an amount of money payable (in damages) for the termination of a contract BUT that amount of money payable MUST BE a reasonable estimate of the costs that would be incurred by the other party. If the estimate is wildly over estimated, then equity would deem the clause would be deemed to be a penalty clause and by operation of equity's rule prohibiting the penalty clause, equity would not allow the penalty to be enforced.

 

In these cases the ERC is often £20,000 PLUS. It is not possible that the banks could honestly say that 20K is the costs they incurred as a result of the early termination of the contract. Therefore, it is logical to deduce that the clause is a penalty clause and therefore unenforceable at law by operation of the equity rule prohibiting penalty clauses.

 

Got to say: I'm not a solicitor I'm just sharing my legal research with you all.

 

Supersleuth

[supersleuth]

Hi Dangermouse,

 

Had some thoughts on the fact that no money order judgment was made when the repossession order was made. My thoughts are this:

 

The lender's are very experienced and practiced at this game much moreso than any borrower. So why do you think that they don't ask the judge for the money judgment. For sure they would be given a money judgment if the judge was already minded to give the possession order - there can only be one reason - it is better for the lender if the money judgment is NOT given and accordingly, it is obviously to the detriment of the borrower that no money judgment is given.

 

If there was a money judgment, then, when the sale was completed, the lender could only take from the sale proceeds, the amount of money that is stated in the money judgment. If there is no money judgment, then it is an open cheque for the lender to take as much as he pleases. Hence, we have a situation where the borrowers are truly shafted for all the equity in their homes. See for example the many threads on this CAG site where people have been charged virtually all of their equity as so called "costs" following the sale of a repossessed home.

 

The message and warning to everyone who is at a hearing where a repossession order is going to be made against them - at the hearing where a repossession order is made against you, IT IS IN YOUR INTERESTS to make the judge give the money judgment at the same time and have the amount of money specifically stated IN THE SAME ORDER.

 

That way, you know exactly what they can lawfully take from the sale and there is no way the lender can help themselves with impunity to ALL of your equity and worse, the lender will find it more difficult to deliberately create an alleged shortfall that they will demand from you after the sale.

 

The rule of thumb for the lenders (particularly the securisation lenders) is that the Repossession business is far more profitable than the mortgage business. Hence, these lenders are really in the repossession business (disguised as the mortgage business) to screw you out of every penny possible.

 

Take care

Superslueth

[supersleuth]

My rule of thumb is that if the costs seem unreasonable to you, then it is probably that the costs are "unreasonable".

 

A reasonable cost is the cost YOU would reasonably expect to pay. For example, you might reasonably expect to pay if you had sold the property yourself. E.g. you could reasonably expect to pay an estate agent a 2% fee for selling the property, and you could reasonably expect to pay a solicitor £400-600 for the legal work. Remember, that when you first purchased the property in ordinary circumstances we usually pay the solicitor to act on both the sale (of our old house) and the purchase of the new house. However, in a repossession sale, there is only the legal costs of conveying the SALE.

 

Thus, if the legal fees are out of sync with what you could expect to pay, then DO challenge the solicitor charges. Also remember that you have the right to have a full breakdown of the solicitor's bill and you have the right to have the solicitor's charges "taxed". Which means you can send the bill to the Law Society to ask them for a determination on whether the bill is reasonable.

 

The legal costs of the sale is different from the legal costs of the repossession action. Again, you can challenge the legal costs of the repossession claim if they are unreasonable. There is not usually any costs order on the repossession order and therefore, the court has made NO ORDER AS TO COSTS. Therefore, the legal costs of the repossession are also still open to legal challenge. The Civil Procedures Rules CPR 44 and govern the rules for costs order especially rule 44.3 which are the factors that the court MUST consider when awarding litigation costs.

 

Also, as respects "third party costs", these are actually at law not third parties acting for the lender. These costs are incurred by you. This is the result of your having signed (in the contract) an irrevocable power of attorney to the lender. This POA allows the lender to appoint these third parties ON YOUR BEHALF. Which means that the third parties are acting for you and therefore these third parties have a duty to you.

 

[On this POA issue however, there could be another argument in that, it is questionable at law whether or not the POA that you granted the original lender is transferrable to a new lender - hmm have to think about that - but if it a POA is not transferrable, then all the charges belong to the lender and the lender is responsible to pay them - not you.]

 

This works in your favour in that, these third parties cannot fob you off with the usual "they don't anwer to you, they'll only deal with the lender crap". They fact is that they act for you. So you can get detailed invoices and challenge the costs.

 

The upshot is: Yes the solicitor's costs are open for challenge. Go for it - challenge the extortions where the charges are unreasonable.

 

Interesting that you have a GMAC mortgage as that's where I started from and ended up with a mob called Basinghall. In my case, one of the arguments is that the GMAC contract is void because it was not signed by GMAC at all.

 

Good luck

Supersleuth

[supersleuth]

Hopefully, nobody will be adverse to this discussion as everyone may benefit from the knowledge and littledotty hopefully will also be forewarned and forarmed for these sorts of issues that may come up.

 

It sounds like you may be in settlement negotiations in order to avoid a trial of your defence. It is concerning that you say you HAVE TO abandon your defence. That is the last thing you should do UNLESS there is a firm settlement agreement in place. I don't know what your defence is, but from the fact that the lender is avoiding the trial it is likely that your defence is very strong.

 

Anyway, if you do agree a settlement to avoid the trial, it means that settlement terms must include the question of costs (of the lender's solicitors). Do not allow the settlement of solicitors costs to be added to the balance of your loan. You must negotiate that away such that the lender agrees to pay its own costs. You mention "swift legal action" which lead me to believe that if the lender brought the action without attempting to avoid litigation. If so, the lender is in violation of the pre-action protocols and that in itself is grounds for the court refusing the lender's legal costs. Also check the solictor's bill of costs BEFORE agreeing any settlement and negotiate. It's very likely that the solicitor will be excessive with his bill. Say that you want to exercise your right to have the bill either checked by the law society or "taxed" by the costs court (there are special courts that deal with checking the reasonablness of legal bills). Also read the CPR especially rules 44.3 and 44.5. Look at the factor that the court must consider and then use those factors as negotiation arguments against paying the costs.

 

Also use the fact FSA and CML rules as further negotiation leverage against your paying the legal costs (as you paid the premium).

 

I strongly suggest that you do not sign any settlement with them unless the legal costs are agreed. If you allow them to add the legal costs to your mortgage, don't forget that you'll end up paying compound interest on that amount to which will exacerbate your monthly payments. Plus, do not give up your right to your defence - be very careful that it there is any settlement at this stage that you expressly reserve your right to re-assert your defence in the event that they restore the action against you. If you do not reserve the right to your defence, then they WILL restore the action and the next time you'll have no defence. Therefore fait acompli to them. So be very careful of the legal language that these slippery lawyers may dupe you into signing. Look out for language like "full and final settlement" or "all claims whether now or in the future" and watch out for the words "in consideration of" etc., (be especially careful of the word "consideration" . Consideration has a deep legal meaning which is differenct to a lay person's understanding of the word. It does not mean being considerate to others.)

 

If at anytime during the negotiation they make you feel that you have to sign immediately without really thinking it through, bet your bottom dollar there's a catch. And do follow your instinct. If your instinct is telling you to "beware", then your instinct will likely be correct. So take your time and don't feel bullied or threatened into signing. Worst case scenario for not settling is that you get to use your defence (which may be a good defence anyway).

 

Do not worry about the fact that your case has been transferred to multi-track. That is normal for a fully defended repossession case. Like I said, you must have put in a strong defence and the issues you raised have to be determined by a Circuit Judge (rather than a District Judge).

 

Finally if you do agree to settle on the substantive issue, but don't come to an agreement on the costs issue, then say that you want the court to decide the costs issue only. That way, you can get the court to look at the costs and the court will go through the costs bill and the court will decide how much (if any) that you will pay. In which case, you present to the court the same negotiation arguments that you used with the lender. Especially the fact that the lender did not attempt to avoid litigation and did not follow the pre-action protocol.

 

Good luck

Supersleuth

Edited January 24, 2009 by supersleuth

[supersleuth]

Final point:

 

You asked the question "and if a firm states that it will increase its costs in order to send me a breakdown of existing costs is that also unreasonable?" The answer is YES - it is unreasonable and it is unlawful.

Keep that letter as extra evidence against them if you have to ask the court to decide on costs. Your request for a detailed bill is standard and reasonable and in fact, you should not have had to ask for a detailed bill in the first place. The solicitors are obliged to tell you what they are charging you for!

[supersleuth]

Hi Campari2

 

Sorry for the delay in replying, have had techo issues.

 

The lender's solicitor is indeed giving you the runaround. They need GMAC's consent!!! absolute poppycock!!!! It is YOUR information. They don't need GMAC's consent to give you YOUR information. They are holding YOUR data and they MUST give it to you. As usual, the practical reality is that the lawyers and the bankers do not abide by the law and get away with violating the law. Plus as I understand it, GMAC are no longer operating in the UK (check this). Those americans made their cash out of the UK and have now scarpered. Your lawyer should be properly kicking their ass on that nonsense.

 

The lawyers that you have probably have no idea how to argue a securitised mortgage and therefore don't understand the transaction or how to defend it. Expressly ask them if they have any knowledge about securitisation and it they don't (which is probable) then see if you can find a solicitor who does know about securitisation.

 

Private message me with the gist of your defence. It is probable that the DJ doesn't know about securitisation either and therefore to make the defence, you may need to educate the judge too.

[supersleuth]

Hi Campari and MercyBlue,

 

Mercyblue...thanks a billion for the Inland Revenue link...I'm going to use that in my litigation to support and prove the true sale. It's like I said, you have to educate the judges too who have know idea about securitisations and how the borrowers are being unlawfully abused.

 

To be clear about the true sale however...it is this...the ENTIRE contract is assigned to the new lender. This means that the new lender steps into the shoes of the old/originator lender. You then have NO privity of contract with the old lender and you are entirely under contract with the new lender (i.e. the SPV). Therefore, the SPV should be registered at the Land Registry as the proprietor of the mortgage on the Land Charges Register.

 

As for the "breach of contract" that the borrowers are alleged to have perpetrated, i.e. not paying on time....that is not a MATERIAL breach of contract. It can be remedied by paying back the alleged arrears and therefore, the lenders should not get possession. However, the lenders themselves ARE IN MATERIAL breach of contract when they in effect CREATE the arreas by overcharging the account. Thus, what happens in reality is that the lenders CAUSE the arrears and then moan to the court that they are suffering because the borrower has not paid the arrears.

 

The point is, that the SPV does not want to perform their contractual obligation which is - to lend the money for 25 YEARS - no! - the SPV wants the cash now! Hence repossession to grab the cash now.

 

Consequently, we must all look at our contracts are pay ONLY those amounts that we are contractually and legally obliged to pay. Many of the charges are unlawful and unenforceable under the Unfair Contract TErms legislation, and under the FSA regulations. But try finding a solicitor who will actually know any consumer/borrowers rights!!!!...and then try finding one who will vigorously assert those rights!!!

 

The short point is: that the only persone/entity who has contractual rights that can be asserted against you in the court IS the SPV. The SPV is the only entity at law who is entitled to a possession order (if they prove their case). The SPV is the only entity that has legal standing (locus standi) to bring a cause in action against you because it is the SPV that legally owns your mortgage. No other entity or company has any right to any order/judgment against you.

 

Therefore, when the so called "lender" brings the claim, that lender is NOT in contract with you because they sold the mortgage and therefore they in fact, have NO contractual claim against you.

 

Therefore, if you entered into a contract with ABC and it is XYZ company bringing a claim against you, the easiest way to get the judge to understand your locus standi argument (as the judges don't know about securitisation) is to show the judge the contract stating ABC as the contractual party and saying that therefore XYZ have no claim against you or your property.

 

Then that will force XYZ to say - "OH but we were assigned the contract" in which case, they have to PROVE that their alleged assignment and show the court that they have a contractual entitlement against you...i.e. they must show the court that you and XYZ are in "privity" of contract...that's when the paperwork really starts coming out.

 

But then, there's more...as XYZ company (who are named as the Claimant in the action) will not be the SPV. Therefore, you then have to find out who the SPV are that own your mortgage. I've written quite alot of posts on how to go about finding the actual owner of the mortgage so check out some of my other posts.

 

Thus, a good starting point for the defence is to argue that the contract was with ABC and not XYZ and therefore XYZ have no claim against you. That keeps it simple to start with and it is a basic legal principle that the judge CAN understand.

 

Supersleuth

[supersleuth]

Hi Vadja,

 

Eurosail is a securitsation transaction. So it is 99% certain that Eurosail is the SPV that owns your mortgage. The "06 3NC" is the reference to the actual series of the notes that were issued to the investors in the city.

 

Thus, the "06" means that your mortgage was securitised in 2006 (99% certain). The "3" probably refers to the fact that it was securitised in the 3rd quarter. i.e. between June to September 2006. Did you take your mortgage out around May 2006 to August 2006?? Can't think what the NC means, but at least you know exactly which securitsation deal you have to deal with. If you want to know exactly how your mortgage is being dealt with, you can go to the FSA and get the EUROSAIL prospectus for that deal.

 

Supersleuth

[supersleuth]

Hi guys,

 

You've got it. Because the entire benefits of the mortgage are assigned to the new owner/lender/spv, the SPV the securitisation document require that the the SPV (as the real owner of the mortgage) is noted on the insurance documents as having an interest in the insurance policy.

 

Thus, when you took out the mortgage and the policy had to note SPML as mortgagee, that is because at that time SPML did OWN the mortgage. When you got your letters saying EUROSAIL should be noted on the policy, that is the time that Eurosail became your mortgagee.

 

It is proof that your mortgage has been sold to Eurosail, but the judges will not know how to move forward on that proof. The judges don't understand securitisation so your proof has to be blindingly obvious, which means, you need the prospectus.

 

You have come a long way by identifying the transaction. Keep searching on the internet. I've just managed to find my Prospectus on the internet so keep searching. You now know the exact deal you are looking for which is the hardest bit.

 

Supersleuth

[supersleuth]

Hi MercyBlue,

 

That's the rub. SPML remain the legal title holder so that they don't have to alert you (or inform you) that they assinged the mortgage. Also, they remain the legal title holder so that they can dupe the court to believe that SPML are the legal owners...BUT....they are NOT.

 

Four main legal issues here.

 

First, if SPML want to claim ON BEHALF of the SPV then they must state in their claim for that they are claiming in a representative capacity on behalf of SPV. Which means, that they would have to evidence the 'power of attorney. Thus, because SPML are claiming IN THEIR OWN RIGHT - they are claiming a right to possession of your home - a right which they do not have because they have no contractual relations with you any longer.

 

Second. The act of remaining the legal titleholder is illegal. It is illegal (and a criminal offence) to conceal and suppress information from the land registry. When you sell a 'registrable' interest in land, you must inform the land registry. See Land Registration Act 2002 s.123, 58(2), and Schedule 16 (from memory, I think it's sch. 16). The disposition of a mortgage is a registrable disposition. Therefore, the provision in the securitisation contracts where they agree between themselve to ignore and violate this law is illegal and in fact a criminal offence. Thus the SPV should be, but is not, registered at the LR.

 

Third. The SPV is not FSA authorised and yet, the SPV sets the interest rates, sets the policy and sets the repossessions policy. All of these are "regulated activities" under the FSMA 2000 and therefore to engage in these activities you must be FSA authorised. Again, it is a criminal offence to engage in regualated activities without FSA authorisation.

 

Thus, the SPV uses an FSA authorised 'servicer' e.g. Capstone. BUT, Capstone will follow the SPV policy rather than observe and comply with the FSA rules. Hence, you will find on this site alone, borrowers complaints that the lender did not accept reasonable offers for settlment and/or would not capitalise arrears as is required by the FSA rules and pre-action protocols. The reason why Capstone and other don't comply with the FSA rules is because their SPV client has given them instructions/policies NOT to agree to any reasonable offers or capitalise arrears. Thus, the SPV has circumvented the UK's Regulator!!!...

 

Fourth. The lender's are all usually in material breach of contract. You will find that SPML and the other securitisation companies are NOT in the mortgage business (contrary to what we think). THEY ARE IN THE REPOSSESSION BUSINESS!!!!

 

Thus, the SPV and the servicer are always in breach of contract. This is because a material provision of your mortgage contract is that the lender will lend you the money for 25 years. BUT, when the SPV gets the contract, they have NO intention of letting you have that loan for 25 years. This is a material breach of contract. They force people to redeem the mortgages by either (a) overcharging so much that people re-mortgage or (b) force you into (alleged) arrears through overcharging so that they can repossess.

 

A second breach of contract that I discovered in my securitisation is that the lender is not paying any attention to my T&C whatsoever. Infact, the Prospectus specifically states, that it has effectively substituted my standard variable rate T&C's with a Tracker Rate Mortgage T&C. Thus, the product that I bought is irrelevant - they have unilaterally decided to give me a tracker rate mortgage without my knowing about it. Well now I do know about it which means that my mortgage contract is TOTALLY VOID and unenforceable (for various legal reasons)

 

When you read the interest rate policy, and check it against your contractual obligations - you will find that you are being overcharged.

 

To demonstrate my point: in my case, the securitisation was a £600m deal in June 2006. It is now only 2.5 years since then and out of a £600 million pool of mortgages there is only £100 million of those mortgage contracts still in the pool. Thus, in only 2.5 years, they have caused £500 million of those borrowers to either redeem through re-mortgaging or be repossessed. As you know, re-mortgaging is not really an option in today's climate so anybody still with a securitised mortgage is more likely to be repossessed that not.

 

The rot and criminality of this high level [problem] perpetrated on the unsuspecting borrowers is more abhorrent than most of us can grasp. We are mostly still in the old school belief that bankers are 'honourable', lawful and 'honest'.

 

Keep reading...

Supersleuth

[supersleuth]

Hi Midge61,

 

That's a good point. If SPML (as a lehman's entity) is now defunct and/or is in bankruptcy/receivership, then there is more reason why the SPV should be the Claimant. This is because ...remember...that the SPV is bankruptcy remote. That is the whole point of the "true sale". Therefore, note only does SPML have no claim against you, the SPML receiver has NO claim against you either because the bankruptcy receiver has no claim to the assets of the SPV.

 

This is the point at which we could flush out the SPV's. Capstone have NO claim against any of the borrowers and that must be put in the defence as a major line of defence. Also if you can show that SPML is defunct and/or in bankruptcy/receivership, then you can also argue that they do not have "legal capacity" to maintain an action. A bankrupt has NO "legal capacity" at law - much like a child (under 18) has no legal capacity. Only the bankrupt's trustee can bring claims on behalf of a bankrupt.

 

Supersleuth

[supersleuth]

MercyBlue,

 

The first attached document is precisely my point about the illegality of the contractual provisions concerning legal tile.

 

These entities do not have the right to break the law in their contracts. They have contracted to conceal and suppress the transfer of legal title. To contract to conceal and suppress the transfer of legal title is a criminal offence!!!!

 

Note that they admit on the last line of the test that: "and notice would have to be given to the Borrowers."

In fact, under the terms of your contract and under the conditions set forth under the statutes giving the statutory power to assign mortgage contracts, BOTH have the legal requirement that NOTICE is given to the borrowers. We have a fundamental breach of contract here. Notice must be given to the borrower makes sense because the borrower is entitled to know with whom, they are in "contractual privity".

 

 

In the second attachment see also the words: Neither the Issuer nor the Trustee "currently intend to effect any registration at the Land Registry of England"

 

 

It is not their right to CHOOSE whether or not they will or will not register their interest. The law REQUIRES that they register their interest. Nobody has the right to pick and choose whether they will comply with what the law mandates to be done. You would go to jail if you did not register your interest. Why should it be different for this bunch of crooks?

[supersleuth]

MercyBlue,

 

Well mercyME they actually expressly state in their prospectus that they expect to be fully redeemed in 3 years!!!!!

 

That's fantastic. It is absolute proof that they KNOW their material obligations under the contracts to the borrowers was 25 years and then they expressly admit that they have NO INTENTION of keeping their contractual obligation to lend the money for 25 years.

 

At law, this could constitute an expressed REPUDIATION of the mortgage contract. If one party to a contract repudiates the contract (expresses that they will not perform their obligations) then the other party is absoved of performing their obligations too!! Which means, in principle that the borrower is not obliged to perform their obligations (i.e. pay them!!).

 

Borrowers should remember that the lender has contractual obligations to them. The material obligation of the lender is to loan the money for 25 Years. Failure to perform that obligation is a MATERIAL breach of contract and in fact it is a REPUDIATORY BREACH OF CONTRACT. A contract is after all a two-way street.

 

OK, I accept that the practical reality for most borrowers is that presenting this technical legal argument will be a tough one, but NONETHELESS it is a solid legal argument that is a solid defence.

[supersleuth]

Another thing.

 

Not only is there a repudiatory breach of contract there is also a fraudulent misrepresentation.

 

When you entered the mortgage contract you were INDUCED into the contract on the lender's promise and REPRESENTATION that you would have the loan for 25 years.

 

The fact that the lender really had no intention of lending the money for 25 years means that the lender's representation was a FRAUDULENT MISREPRESENTATION. When you are induced into a contract by a misrepresentation or as in this case, a fraudulent misrepresentation, at law, you can also be absolved from performing the contract.

 

Keep going with the reading....

[supersleuth]

Hi ALL, especially Campari2

 

If anyone wants to put up a defence against the legal costs (whether reasonable or not) that are imposed on your account you may find it helpful to use this statutory provision. (Thanks Campari2 for bringing it up).

 

Section 4 of the Unfair Contract Terms Act 1977

4. Unreasonable indemnity clauses.

— (1) A person dealing as consumer cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.

(2) This section applies whether the liability in question— (a)

is directly that of the person to be indemnified or is incurred by him vicariously;

 

(b)

is to the person dealing as consumer or to someone else.

 

In plain English, the contract term to which the lender's rely for ALL their reasonable and unreasonable legal costs is in effect an INDEMNITY CLAUSE. It is a clause where you indemnify the lender against all their costs. The clause is NOT enforceable against you unless it is reasonable.

 

Thus, the court must consider first whether the clause is reasonable pursuant to the guidlines set out in Schedule 2 of the Unfair Contract Terms Act 1977 AND then the court must consider whether it should impose those costs on you pursuant to the factors set out in CPR 44.3 and 44.5.

 

Your indemnification of the lender against legal costs is likely to be unreasonable under the UCT Sch.2 because it was not reasonable according to the factors set out in the schedule and therefore, this provision in the contract will be unenforceable against you.

 

Costs can be excessive and therefore, it is in our interests to stop lenders from having a free ride at our expense. Would they bring the actions if they had to pay the costs? They'd probably think twice before they did!!

[supersleuth]

Hi there,

 

Your hair will curl with the monster abuses and chicanery of this [problem] - high level criminal deliquency of these so-called 'respectable' people.

 

I have heard from another source, that the purported "charitable" trust on one securitisation actually goes back to the investment banker's directors pensions!!!

 

such charity......those very poor souls who are the famous recipients of those seven figure city bonuses are of course, in need of charity...and in need of all the tax breaks/tax avoidance that they can get away with....again, these charitable trusts are all sooo secret and private.

 

At last the public are becoming illuminated on this [problem]

[supersleuth]

Hi Campari2

 

So pleased to hear that you won't be signing a tomlin order. Had another thought on the issue: The terms that were in the tomlin order were really terms that could have, and should have been agreed in the pre-action protocols.

 

They are standard terms to pay the (alleged) arrears. Therefore, is was wholly unreasonable for the lender to instigate proceedings, unreasonable to incur legal fees and unreasonable to cause you to incur legal fees for this nonsense. All of these costs could have been avoided it they'd complied with their legal duty under the pre-action protocols.

 

With respect to the missing year you are right. If Oakwood have been assigned the mortgage then they would have all the documents going back to the start of the mortgage. It may be that Oakwood do not have the documents any longer, because, assuming that Oakwood have since assigned the mortgage to an SPV, the SPV would now hold all the documents.

 

Perhaps it may be useful to write to Oakwood and expressly say that given that they don't hold a whole year's worth of documents, ask them to whom they have given those documents and to whom they have assigned the mortgage.

[supersleuth]

The structure of the securitisation is (and discussed at length) is that the SPV owns all the legal and beneficial interests in the mortgage contracts.

 

When the SPV bought the mortgage from you "lender" it had no money, so...the SPV went to the city and asked investors to buy their "Notes" (debt instruments). The investors said yes, we will loan you (the SPV) the money to buy the mortgages from the lender, but we want some collateral to secure our loan to you (the SPV).

 

So Eurosail said, OK, I will assign my interests to the mortgages to a trustee and that trustee will hold the beneficial interest on behalf of you the investors (who buy the Notes). So Eurosail entered into a Trust Deed with a Trustee (the Bank of NY) and the trustee has to look after the assets (the mortgage contracts) on behalf of the investors.

 

This is why I keep telling people that your mortgage has itself, been mortgaged!

 

Another part of the securitsation deal is that the investors are protected from the risk of loosing money through the difference in currency exchanges and differences/mis-matches in interest rates. Therefore, the deal will have a certain number of "derivative" instruments. You may have heard of for example the Credit Default Swaps.

 

So far then....the trustee has an interest in your mortgages because the SPV has assigned the beneficial interest to the trustee to hold on behalf of the investors. The trustee is empowered to do certain things in the Trust Deed. If there is no power in the Trust Deed for the trustee to take certain action, then the Trustee must seek the permission of the Noteholders to take such action. Hence, this notice is telling the Noteholders that Eurosail wants to terminate the derivative contracts and they want the Noteholders to agree to that course of action.

 

Here - Eurosail (who is the SPV that ISSUED the notes and is therefore the ISSUER). Eurosail want to wind up the derivative contracts because, Eurosail have contracted with Lehmans for say, the currency swaps, the interest rate swaps, credit default swaps, BUT Lehmans are bankrupt.

 

Because the benefit of these contracts has also been assigned to the Noteholders, the Noteholders must agree to Eurosail winding-up/cancelling these contracts. Hence, they have to give the Noteholders notice before Eurosail can go ahead with the

 

Therefore, this is a public notice to tell the Noteholders that there is a meeting to be held whereat, the Noteholders can vote to say Yeah or Nay to the resolution. It results from the USA's particular Chapter 11 bankruptcy laws, where the bankrupt has the right to accept or reject certain contracts.

 

The possible impact on borrowers....

 

The fact that Capstone have informed the Noteholders that the termination of the contracts means that it may impact upon the distribution of the Action Redemption Funds, means in plain English, that there may not be enough money in the account to pay the Noteholders the full amount that is due to them because they won't get the cash from Lehman's.

 

What this may mean to you....it may mean that they will try to make up the shortfall from you the borrowers...so watch out for very agressive charging going forward.

[supersleuth]

Hi Littledotty,

 

If Matlock are your lender, and if Matlock are the named Claimant in an action against you, then you could argue that Matlock are unlawfully engaging in a regulated activity which is a criminal offence.

 

The administration of a mortgage contract is a FSA "regulated activity". The Financial services and markets Act 2000 make it a criminal offence to engage in a regulated activity without an FSA authorisation. Taking a repossession action is a regualated activity because it is the administration of the mortgage contract. Therefore, if Matlock are not authorised, the court cannot acknowledge Matlock's claim against you because if the court accepted Matlock's claim, then the court would have to recognise Matlock's criminal activity of engaging in a criminal offence. In other words, the court would have to first accept Matlock's the criminal activity f they wanted to recognise Matlocks' claim.

 

However, if Matlock have assigned the mortgage contract, then you must first point out to the court that you did not enter into a contract with the Claimant (whoever they are) and therefore, the Claimant must show its root of title to your mortgage contract. i.e. they must show that they have lawfully and validly been assigned the contract.

 

To reply to mick7k, Capstone do not own the mortgages, Capstone are just the mortgage administrators. As for the governmnent, FSA, FSO or anyone else doing something about this con, NO HOPE!!! you'll be well and truly homeless before any of that lot will recognise the rule of law in favour of us minions. Plus, they probably have a vested interest in supporting the con because many of them will get jobs after they've left office (see e.g. Tony Blair doing very well out of J P Morgan). Plus, most of the FSA board are also either on the board of the banks, were on the board of the banks or are going to be back on the board of the banks in the future. Upshot is, we're on our own - and we have fight for and to enforce - the rule of law.

[supersleuth]

Littledotty,

 

If SPML are purporting that Matlock assigned your contract to them, make them prove it.

 

Having a quick read of the Eurosail prospectus will tell you whether SPML were assigned the contract or whether the contract was assigned straight to the SPV (Eurosail). I noted on my brief read of the prospectus that Matlock contracts were in the Eurosail securitisation and therefore, believe that Matlock sold the mortgage straight to SPML. Read the prospectus to check it.

 

Supersleuth