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

[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....

[mercyblue]

no they haven't put that expressly I have used this which is what they have put

 

*Indicates an assumed constant per annum rate of prepayment of 15.00% per annum for the first year and an

assumed constant per annum rate of prepayment of 35.00% per annum for each succeeding year

 

which is of course 85% 3 years

[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!!

[mercyblue]

from the prospectus and I kid you not.

 

Parent and Share Trustee: The Issuer’s entire issued share capital is held by Eurosail-UK

200x-xxx Parent Limited (the “Parent”) except for one share

held by Wilmington Trust SP Services (London) Limited (the

“Share Trustee”) as nominee of the Parent under the terms of a

share trust dated xxxxxxxxxxxxxxx (the “Share Trust”). The

11

entire issued share capital of the Parent is held by the Share

Trustee under the terms of a trust established under English law

by a declaration of trust dated xxxxxxxxxxxxxxx (the “Charitable

Share Trust”) for the benefit of certain charitable purposes

 

what chicanery is this??

[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]

[iconoclash]

Hi - thanks superslueth - Ive used this thing about A business Indemnifying its losses in my case, but at present do not know if it will be used - I think the first phase is to get the agreement re payment terms 'rubber'stamped' and fight their costs claim. Not signing their Tomlin Order and it seems badly written and inaccurate. Thanks for all the info in regard to these. Then I need to look at how to claim back my MIG/HLV (whatever they wish to call it) and to get arrears Charges suspended or refunded etc.

I did a SAR on my lender about 4 months ago. The files received do not show any information about SPV but does include Title Insurance in favour of GMAC - the original lender. GMAC papers state they they've transferred all rights, administration etc to Oakwood so I assume this means that Oakwood should have sent me info right back to the beginning of the mortgage, not just from Oct 07 - at least one year missing.?

[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.

[vajda]

hi midge61

been looking up castone on the fsa website all directors of capstone are also directors of spml in same job capacity as i understand in my limited knowlrdge of corporate law as the two companys are interconnected as capstone and spml are even if they close down one company they are still liable for all liabilities against them

[iconoclash]

Hi - if I get a letter from my lender agreeing terms but their sol. sends their version with 'without prejudice' on it - can I assume that I can just use th lenders letter in court to refer to having reached agreement with the DJ? thanks

[midge61]

That's the wrong link. It wouldn't let me change it!

 

Lehman Brothers UK mortgage book in fire sale - 6 January 2009

 

This is the right one.(hopefully!)

[midge61]

Hi all

 

Have just found this. Not sure if it is of any help.

 

Shares & Markets - Telegraph

[midge61]

Hi

 

The first link means they failed to sell so far and are now desperate to off load Crapstone and the mortgage book.It's a bit like when a dca buys a debt, buying for pennies then claiming the whole amount from the debtor and making a huge profit.

 

I think those of us with mortgages will be in for a rough ride being forced to re-mortgage or into re-possession as whoever buys will want to make a quick profit.

 

The second is about one of the securitisation pools and I think they too are panicking as the ratings agencies have downgraded them to bad (toxic ).

[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.

[littledotty27]

How does this work?...Matlock bank are not registered with effect from 30/03/07 with the fsa.

So if I argued the point of securisation in court & my original mortgage was with matlock & they have ceased trading,does that mean officially spml have all legal rights?

[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

[mercyblue]

yes spml did buy the matlock mortgages according to the prospectus.

[supersleuth]

Hi Littledotty,

 

Correction: the Matlock mortgage were sold to the SPV (i.e. Eurosail), which means that Eurosail are the owner of your mortgage and therefore, your lender.

 

Read from page 65 of the prospectus.

 

Supersleuth

[supersleuth]

Update...

 

It appears that Matlock sold to the mortgages to SPML, and then SPML sold the mortgages to Eurosail. See page 98 of the Prospectus.

 

Therefore, Eurosail are now your mortgage lender

[mich7k]

so we have no chance then even if we make payments and keep going back to court eventually we will loose?

[supersleuth]

NO!

 

We have a chance because the rule of law is on the side of the borrowers. The lenders have breached many criminal laws and civil laws. It is up to the borrowers to assert their defence and to enforce all the consumer protections that the borrowers have against the lenders.

 

Plus as I keep saying, the Claimant named on the Claim Form is NOT the lender and therefore has NO RIGHT AT LAW to claim a repossession against your property.

 

If you wait for, or expect that the government/FSA/FOS to fight for YOUR home, think again. That will not happen. You have to fight for yourself and assert your defence. These securitisations have repossessions structured into them. The lender had no intention of lending you the money for 25 years. Therefore, they force repossession by overcharging (which is breach of contract and in fact, theft - see s.3 of the Fraud Act 2006) and also, cause you to go into arrears with their overcharges so that they can repossess you.

 

It does mean that you have to work at your defence yourself, or you can wait for the government/FSA/FOS to do something for you. Personally, I believe that you are better off helping yourself. But then again, we all have to make our own choices.

 

Supersleuth

[iconoclash]

Hi all and SS: not a good day.

 

You warned me and we saw it coming - suspended possession with huge costs - terms agreed to pay but with NO mortg. balance quoted and NO arrears balance quoted - also their advocate quoted some law about "ambiguous costs MUST be for the claimant" but only after our sol. spent some time going through all the unreasonable costs and how they were not clear and assigned sufficiently - hmmmm.:(

[littledotty27]

Thanks for that info Supersleuth.

I have to write a witness statement to prove that SPML are being negligent & under breach of contract for our next hearing on 3rd march.

Its going to be a lengthy statement I think!!!

[midge61]

So sorry Campari that it didn't go so well.

[iconoclash]

So sorry Campari that it didn't go so well.

 

Hi - thanks. Well I kinda knew we were in a corner but I have lots of things to add about why that was so, and I wont put them 'out loud'. This isnt last theyve heard from me.......as they say in the movies:)