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

[supersleuth]

Hi Midge61

 

If there is a transaction called SPS05-3 on the ISE, ask them for a copy of that prospectus. From that prospectus, you will be able to decern the various relationships between SPML, SP Funding, SPS etc. and then you will know what is going on.

 

Nightmare4banks

 

just would like to add something to your post where you say "c.The income stream is the interest and charges paid by the mortgage borrowers.These monies go direct to the SPV less the admin charges and any other expenses"

 

The shock factor for borrowers is that they not only pay the administration fees of the imposter lender, borrowers also pay all the administration costs of the SPV - thus the amount of interest charged reflects the entire administration costs of the SPV which is unbelievably colossal! In my securitistation I know that there are 24 DIFFERENT CITY FINANCIAL INSTUTTIONS that charge administration fees to the SPV IN ADDITION to the admin fees charged by the imposter lender -

 

As you rightly point out - the ONLY income stream for the SPVs is the interest earned from us borrowers. Therefore, the weight of ALL the admin costs of BOTH the SPVs and the imposter lender fall on the borrowers. See for example, the evidence to the Treasury Committee (Scedminc has posted a pdf of this evidence) where at para. 10 it states:

 

"This means that Northern Rock must set the interest rate at a level that ensures that the SPV suffers no REVENUE SHORTFALL" ...in other words, we the borrowers, have to pay for the entire costs of supporting ALL the fees, commissions, bonuses (including the famous city bonuses earned in these transactions) and all the ongoing huge costs - is it any wonder that our interest rates are set so high. Truth is that the interest rate set has got nothing to do with alleged "RISKEY and uncreditworthy borrower" - the rate is set because it must ensure that the interest income earned from the borrower is enough to support ALL the imposterbank and SPVs costs and profits. i.e. there must be NO REVENUE SHORTFALL for the SPV.

[supersleuth]

Hi Littledotty,

 

As you noted, she doesn't understand the law and doesn't know what to do. So she does the usual and tells you to "seek legal advice". Such a useful phrase to get out of engaging brain - it's nearly as good as the other abused phrase of "can't discuss - data protection act".

 

Ok she was right about one thing - she said there wasn't any thing they could do unless a judge or solicitor "complied" for a court order ....do you mean "applied" for a court order?

 

That's what we can do. I'll work out the process and let you know. In the meantime, what she didn't tell you was that you could apply to the Registrar of the land registry (who could do the same thing as the court order anyway). Hey ho...doesn't surprise me...I'll let you know the process in due course and then you can educate her about her job! (oh and I bet she's never even read the Land Registration Act!!)

 

Supersleuth

[supersleuth]

Midge61,

 

First note at page 69 of the Prospectus it states: " Under the Mortgage Sale Agreement and the Deed of Charge, each of the Issuer (with the consent of theTrustee) and the Trustee will be entitled to effect such registrations".

 

Also use page 9 schematic which shows that SPML ("sale of mortgage pool" ) SOLD the mortgages to the ISSUER - the "ISSUER" is Southern Pacific Securities 05-03 plc - (note that Southern Pacific Securities 05-3 plc is now the entity with whom you are in contractual privity and is your lender - and also note that Sourthern Pacific Securities 05-03 plc then created a trust with the MORTGAGE TRUSTEE and put your mortgage into that trust).

 

Also see page 55 "Under the Mortgage Sale Agreement, SPML will sell and the Issuer [i.e. SPS 05-3 plc] will purchase the Loans and Collateral Security comprised in the Initial Mortgage Pool for consideration equal to the aggregate of (a) an amount equal to the aggregate Balances of the Loans comprised in the Initial Mortgage Pool..." (Note "consideration" is a technical legal word which means: in "consideration" of you [i.e. SPML] giving me [i.e. SPS 05-03 plc] the "consideration" of the legal right and title to the mortgage contracts, I [i.e. SPS 05-03 plc] will in return give you [i.e. SPML] the "consideration" of the total amount of the balances on all the mortgage accounts.)

 

This PROVES that legal title has passed to from SPML to SPS 05-3 plc, and then SPS 05-03 limited then passed legal title to the the Trustee - THE TRUSTEE and SPS 05-03 plc would NOT be entitled to effect the registration if the legal title had not been conveyed to SPS 05-03 plc. SPS 05-03 plc in turn conveyed the legal title to the Trustee under the trust deed between SPS 05-03 plc and the mortgage trustee. THUS LEGAL TITLE WAS CONVEYED by SPML...and the transfer of legal title to SPS 05-03 plc should have been registered!

 

The evidence that you need should highlight to the judge is at page 69: "Neither the Issuer [i.e. SPS 05-3 plc] nor the Trustee currently intend to effect any registration at The Land Registry of England and Wales" That is the breach of s.27(3) and (4) of the Land Registration Act 2002 which MANDATES THAT THEY MUST REGISTER AT THE LAND REGISTERY - at the very least SPS 05-3 plc MUST REGISTER but has not.

 

Also, section 123 makes it a criminal offence to INTENTIONALLY suppress and conceal the transfer from the Land Registry. As they expressly state that they have no intention to register - they have committed the s.123 criminal offence.

 

Your bank statements with reference to SPS 05-03 PROVES that you are paying the ISSUER (i.e. SPS 05-03 plc) and therefore, there can be no doubt that your mortgage is in this securitisaiton mortgage pool

 

Hope this helps speed up the reading and understanding of the Prospectus and points you to the right areas.

 

Supersleuth

Edited March 6, 2009 by supersleuth

[supersleuth]

Hi Smarterchick,

Whoever advance are, they do securitise - they all do. They may keep the assets on balance sheet but that is a smoke and mirrors exercise. What is the row of numbers on the DD? That row of numbers will probably be more revealing than you think.

 

Supersleuth

[supersleuth]

enoughisenough (great name - it is a spot on sentiment of us all) - please do PM me your find

 

Smarterchick, there's not enough to go on at the moment- what is the full name of Beacon? How are they connected with you?

 

Have you looked up the company names on the Companies House Website and also checked them up on the FSA Register (see FSA Website). You may get clues there.

 

The numbers you sent aren't very revealing although the letter "P" could be of some interest - back in 1995 Swift Advances plc used to be called Purbeck House Securities Limited. They have been called Swift Advances plc since May 2004. When was your loan originated?

 

Have you checked your buildings insurance policy? What companies are listed as having an interest in your blding ins?

 

Need to do a bit more initial footwork to suss this one out.

[supersleuth]

Hi Enoughisenough

 

The documents that you sent (are public documents and so can be shared on with other CAGgers.

 

This whole repossession nightmare that everyone is facing is because of certain 'triggers' in the securitisation documents. If a certain scenario happens, then the Investors have the right to have their notes redeemed early. i.e. earlier than the note redemption date - which means for the borrower - earlier than your 25 year term.

 

If the trigger event happens such that the Investors Notes can be redeemed early, there is only one way that the SPV can get the money to redeem the notes. That means, they will either force you to remortgage (which is now virtually impossible) or they will repossess you. Either way, they will liquidate you in order to get the cash to redeem the investors note.

 

That is the real scandal behind all this crap. That is why they have, in a lot of cases actually created the arrears that they complain about and why they force you into arrears. They do not want you to have the loans any more they want to cash out. That is why the interest rates are so high, the charges so excessive etc., they want to MAKE you default so that they can claim a repossession. It is the passive-agressive tactic - they look like the poor old victim who has a "bad Borrower" that doesn't pay, when in fact they've abused their contractual powers to force you into arrears. They are determined to repossess so that they can liquidate the mortgage pool in order to redeem the notes for the investors.

 

See e.g. the Standard and Poors document. That document is a type of 'advert' which tells potential investors that the deal is coming up and gives the investors and interest to consider whether to buy the notes. It a type of marketing document outlining the main points of the investment opportunity. The Propectus thereafter gives the final and full details.

 

Nonetheless, look at the page on the S&P document were it states:

Mandatory redemption

The notes will be subject to mandatory redemption in part on each interest payment date from available funds. [i.E. THE FUNDS THAT BECOME AVAILABLE AS AND WHEN THEY REPOSSESS YOU AND THE FUNDS BECOME AVAILABLE FROM THE SALE OF YOUR PROPERTY] Redemption will occur sequentially. There will be no mandatory redemption of the junior notes while any of the senior notes are still outstanding.

However, if certain tests are met, redemption will occur pro rata according to the principal amount outstanding of the notes. These tests include:

• Passing an arrears test;

• Having no principal deficiency on any class of notes;

• Maintaining the balance of the reserve fund at the required level;

• Having no outstanding liquidity drawings;

• At least 50% of the class A notes having been fully redeemed; and

• The A1 notes having been repaid in full.

Optional redemption

The issuer may redeem all the notes at their outstanding principal amount, together with accrued interest if:

• The notes become subject to a withholding tax; or

• At any time the principal amount outstanding of the notes (excluding the class DTc notes) is lower than 10% of the aggregate principal amount of the notes at the closing date (excluding the class DTc notes).

 

These are the terms of certain trigger event which will cause the MANDATORY or option redemption of the Investor Notes. You can take it as red that these events have been triggered and that is why all these mortgages WILL be repossessed (unless the borrower has managed to remortgage).

 

The other document that you sent is a public notice to the investors in certain Notes. In the Mortgage sale agreement between SPML and the SPV, SPML will have made certain REPRESENTATION AND WARRANTIES about the mortgages - e.g. SPML will have represented that the mortgages in the mortgage pool have a loan to value (LTV) of say, 90%. If subsequently, that REPRESENTATION turns out to be untrue, then the SPV can say to SPML - hey you falsely represented the LTV and if we had known the truth, we would not have bought THAT mortgage so, in accordance with the Mortgage sale agreement, SPML will say, oh whoops sorry, of course you must have a refund and we will take back the mortgage. Think of it like a kinda returns policy same as when you take a product back to Marks and Spencer.

 

BUT even though SPML may have taken back some mortgages and refunded that particular SPV - SPML would have thereafter, put that mortgage back into another pool and securitised it off again anyway.

[supersleuth]

If that's the case SS, what have I got wrong here? In earleir posts it is being stated that the SPV's are the rightful owners of the loans and mortgages and repossesions should not be being undertaken by the loan company, but above you are stating that repossession CAN be effected...by the SPV? - I thought these SPV's were unlikely to do that due to their 'amost secret' exisitance? - how does the layperson get to grips with the difference between the two?

 

Don't know where you think I am stating that repossession Can be effected by the SPV because I have not said that at all. You question how the layperson gets to grips with the difference - that is the point! They don't want the layperson to get to grips with it - they want it concealed. That is why people on this thread have been so remarkable - they've worked out who their SPV is!

 

You do not know WHO your SPV is yet. Your mortgage is with Swift Advance (is that correct?). You only know that Swift Advances originated your mortgage (is that correct?). Are Swift Advances named as the owner of your mortgage on your property register at the Land Registry. Whoever is registered at the land registery as the owner of your mortgage will be the company that SOLD your mortgage to the SPV.

 

That is the starting point for working out to whom they sold your mortgage. It's the only thing you can go on. So, if you read the earlier parts of this thread and other thread such as the "Preffered Mortgages" thread, you will see how people sussed out who their SPV is. Once you've worked out who your SPV is, then you can use the Prospectus to give you all the information about how your mortgage is being abused. It is hard, I know, but it can be done, as many people on this thread have already done it.

 

As I said before, check your building insurance policy - which companies are named as having an interest in your buildings insurance policy? You may find some obscure company that you haven't heard of before is on your policy - that could be your SPV.

 

Get a copy of Swift Advances Annual Report and Accounts (it costs £1) online from Companies House - read especially the notes in the accounts which may also tell you the names of companies. Find out who the parent company of Swift Advances. Like I said, there is some ground work to do, but it can be done. All I can do is give you pointers as to where to look.

 

Gotta do the ground work, but as a SmarterChick you will suss it out and as you get the info - we Caggers will all help you to connect the dots.

 

Supersleuth

[supersleuth]

Hi Smarterchick,

 

The numbers didn't reveal anything to go on. As you say, it looks like they are bank account references - might even be the bank account of the SPV but if it is the SPV account number, at this stage it doesn't tell you who the SPV is. Keep digging and keep asking questions - that's what is so great about this web-site.

 

BTW - that Beacon link you posted earlier shows Beacon are a "packager" of the mortgages - i.e. packages them up for securitisation. So look out for the other mortgages that Beacon packages as they would probably package Swift morgages with e.g. First Plus (i.e. one their other clients)

 

Good luck

Supersleuth

[supersleuth]

Hi Guys,

 

Check out this blog site where the House of Commons Butler evidence is discussed with a barrister that calls himself FatBigot. It relates to the false/imposter lender's legal title to sue.

 

Mark Wadsworth: "Are securitisation companies above the law?"

[supersleuth]

Hi Scedminc,

 

The whole market has allegedly collasped - isn't that what the whole "toxic-assets" thing is about. Anyway, you are right. The courts and the government would do a cover up for the financial institutions because the powerless consumer is the easiest one to screw over.

 

But to be clear, it isn't saying that the mortgages are all unenforceable - it is saying that the company that pretends it owns the mortgage has no right at law to enforce the mortgage against you. It has no lawful right to claim against you because they have sold their contractual rights against you to an SPV - therefore, at law, only the SPV has the contractual claim against you.

 

But people generally don't know that it is the SPV that should be making the claim (i.e. other than the CAGgers on this site) because the SPV has concealed its legal ownership of the mortgage from both you and the Land Registry, oh, and the courts are also duped into believing that the falsely register lender has a claim because of the SPVs failure to register as the real owner of your mortgage.

[supersleuth]

Midge61,

 

You are so right...and all that crap you suffer is caused by the SPV. They do not honour their contractual obligations to you - they just abuse you and charge the excessive interest rates in order to force you into arrears because they want to repossess you.

[supersleuth]

Smarterchick - spot on!

[supersleuth]

Hi Smarterchick,

 

Great post. Turn their words on them!

 

It is noted that the claimant states that they are not disclosing the information because the claimant does not inted to rely on that evidence.

 

However, you will note that CPR 31.6 obliges the claimant to disclose "(b)(i) documents which adversely affect his own case and (b)(ii) support another party's case".

 

The documents that you have requested fall within the scope of those rules and indeed, the information you requested supports your case and therefore falls within CPR 31(b)(i) of the rule. Therefore the claimant is obliged to make the disclosure.

 

Also, it is clear that the real reason for failure to disclose is that the documents requested adversely affects the claimant's case and therefore falls within the scope of CPR 31.6(b)(ii). As such, the claimant is obliged under both rules to make full and frank disclosure. Failure to make the disclosure in compliance with CPR 31.6 renders the claimant in violation of the rule.

 

Therefore, insist that they make the disclosure. Acknowledge that they do not intend to rely on the information that you have requested, but point out that you do intend to rely on the information and they are duty bound at law to provide the information under CPR31.6(b)(i) and (ii).

[supersleuth]

Hi JonCris,

 

According to the House of Commons evidence Carmel is a New York lawyer, not a UK lawyer. So it's not likely you'll find her registered at the Law Society.

[supersleuth]

Hi All,

 

Gotta give my vote to JonCris for posting up the TaffyR thread (see post 309 above). TaffyR really knows his stuff. Wonder if anyone knows TaffyR and if he would be willing add to the debate here?

[supersleuth]

Hi Guys,

 

Check out this blog site where the House of Commons Butler evidence is discussed with a barrister that calls himself FatBigot. It relates to the false/imposter lender's legal title to sue.

 

Mark Wadsworth: "Are securitisation companies above the law?"

 

 

Hi All, there's been further discussions with the FatBigot...keep an eye out on this blog

[supersleuth]

Hi Crapstone,

 

You ask the question: How is anyone that has mortgage with these muppets supposed to clear arrears, even with a court order if they insist on adding fees and interest that outweigh the extra payments?

 

On the experience of all borrowers who are securitised, the answer is: THAT THE "LENDER" INTENDS THAT YOU DO NOT CLEAR THE ALLEGED ARREARS. Their intention is that you redeem your mortgage either through remortgage (which is now impossible) or through repossession. If you were able to clear the arrears, then they would not be able to repossess....

 

...and the SPVs DO WANT repossess. They want to repossess NOW, because, the SPV is contractually obliged to redeem the NOTES that it issued to its INVESTORS. The only way they can raise the money to pay their investors the money they owe on the investor NOTES is to liquidate YOUR HOME through repossession. They then use that cash to redeem their Notes with their investors. The borrowers are the SPVs ONLY source of income - therefore it is the borrowers that are called upon to fund the repayment of the notes to investors.

 

Also note the JonCris post where he informs us that the largest American repossession auctioneer is setting up in the UK - why do you think they can confidently come here - because they KNOW that the securitisation companies WILL repossess so they KNOW there is plenty of money to be made in the UK on the back of the SPVs repossession policies.

 

As you noted - the lenders do not give you a real statement of account - so you can never reconcile the account. They do not want you to reconcile the account because then you would be able to see the extent of the overcharging and then you would be able to argue against the overcharging. The overcharging (which are amounts of money demanded to which they are not contractually entitled to charge) is how they fabricate the ALLEGED arrears so that they can make a repossession claim. Note e.g. the jump in the interest you've been charged -it doubled in one month.

 

Need proof of this reason: Just look at the credit ratings downgrades. When the notes are downgraded, that is one of the events that TRIGGERS the contractual right of the Investors to demand repayment of the SPVs Notes. There are other trigger events that trigger the investors right to have the SPV redeem the Notes, most of which will probably have been triggered. Upshot is: they MUST liquidate your home in order to pay the investors.

 

Once we accept this as the fact, and stop believing that these lenders will be 'reasonable', then we will be better placed to fight them off. Pussyfooting around with the belief that they will be honourable and fair (and a belief that they will operate within the law) are naive beliefs. Borrowers must mount a full defence - in your case (as with everyone else), it is worth going through your accounts and evidencing the overcharging. Even if all you can do is show that their accounts are inconsistent and irreconcilable, it will demonstrate that the account must contain errors. So everyone should consider challenging the accuracy of the amounts claimed on the claim form.

 

The fees are unfair and therefore not payable under the Unfair Contract Terms Acts. Again, another element of the amounts claimed that should be challenged in your defence. In fact, alot of the terms and conditions in the mortgage contract are unfair and unenforceable e.g. dumping you with their legal fees when you have no legal representation. The SPVs are all in breach of contract for their obvious intention to not honour the 25 year term of the loan etc. - this is tough one to articulate in a defence, but perhaps consider using the House of Commons Butler evidence to demonstrate the point.

 

Enoughisenough is right - CAGgers have shown have incredibly resourceful and intelligent consumers really are and although it is hard work, at some stage the scandal of this rot will come out. I echo his sentiment where he says: "There's no point pussy footing around with these arrogant w**k**s. BRING THEM TO BOOK or they'll try and p**s all over the lot of us. Oh and forget the OFT. Still notify them etc, but don't expect anything from them. They all went to the same schools."

[supersleuth]

Hi All,

 

Very important development that may assist all CAGgers. Check out this thread - an eminent QC will be writing an opinion on this topic:

 

http://www.consumeractiongroup.co.uk/forum/mortgages-secured-loans/186867-carmel-butler-house-commons.html

 

Many thanks to Last of the Mohicans for starting that thread and many thanks to PammyG's input.

 

Supersleuth

[supersleuth]

Yes it is true. But nobody (that I know of) has challenged the clause that is responsible for the automatic charging of legal fees to the borrower. It must be challenged. I've written about this before. I'll see if I can re-find the post.

 

BTW: You're right - I too really appreciate Sced putting up the post (nice work Sced)- but you deserve a huge pat on the back because you started the thread that caused PammyG to join the forum (she says that in her first post)...and PammyG brought our attention to the eminent QC's involvement.

 

And I second your sentiment that we should all take bows all round - especially Littledotty (good to have you back Littledotty). Big thanks to her for starting this thread and letting this incredible momentum to develop in the first place! Maybe Littledotty can get in touch with her ITN contact, that would really put this rot on the map!!!...and make it easier for us to present our points in court.

 

Supersleuth

[supersleuth]

Last of the Mohicans,

 

Waiting with baited breath....can't wait to hear what you've got!

[supersleuth]

Oh how I just love humour in the face of adversity....good on ya EIE...you made me howl with laughter: These muppets will deny sunrise as it's staring them in the face. it's sunsrise for us and sunset for them!

[supersleuth]

Hi Littledotty,

 

Write out concisely and clearly your point to make sure that the judge understands - it seems he is already in agreement with you that something is not quite right about the LR so he will be conducive to trying to understand your point. Try it along these lines:

 

 

First, the register is wrong. It is wrong because SPML have filed an incorrect mortgage deed against your property. The register must be wrong because you did not sign a mortgage deed dated XXX and you did not sign a mortgage deed for £50K - therefore, the charge that is registered against your property is an incorrect entry. Accordingly, SPML cannot maintain an action against you based on an incorrect entry on the LR. In view of these fact, you request that the court to order that SPML evidence the ORIGINAL mortgage deed and in the event that SPML fail to evidence the ORIGINAL mortgage deed, that this claim be struck out for failure to prove its claim. (Note: if SPML cannot evidence YOUR original mortgage deed, then they have no deed to assert against you and therefore no claim).

 

In the alternatively, if SPML want to maintain that the LR is correct and/or the court allows SPML to proceed on the assumption that the LR is correct, then you request that the court make a declaration in a court order to declare that in accordance with the LR, that the mortgage advanced against your property is £50K and that your mortgage account is recalculated in accordance with that deed that is filed against your property. (That should shake them up!!! this one could work for you!!)

 

Second - in any event, even if SPML do evidence the original mortgage deed, SPML do not have a claim against you because SPML have sold your mortgage to Eurosail. Therefore, the register is also incorrect because Eurosail are the legal owners of your mortgage. The LRA 2002 s.27(3) and (4) mandates that following SPML's transfer and assignment of the mortgage to Eurosail, the law requires that Eurosail must be registered as the proprietor of the mortgage at the LR. As Eurosail are the legal owners of your mortgage, they should be, but are not yet, registered as the proprietor of the mortgage at the LR. It also follows from these fact that you are not in privity of contract with SPML given that SPML have transferred and assigned its title to the mortgage to Eurosail. It follows from these facts that at law, only Eurosail have the legal standing to bring claim against you which means that SPML have no lawful grounds on which to ground a claim against you as you are not in privity of contract with SPML. (Use the prospectus to prove this factual point re the transfer/assignment of your mortgage).

 

For these two reasons, the LR is inaccurate and incorrect and accordingly, SPML cannot maintain an action against you based on inaccurate and incorrect entries on the LR. Additionally, SPML cannot maintain an action against you on the grounds that you are not in privity of contract with SPML.

 

Accordingly, SPML are put to strict proof to prove that they are (1) in possession of the ORIGINAL mortgage deed and therefore, you request that the court order that SPML make available for the court, the ORIGINAL mortgage deed and (2) that the representations made in the Eurosail prospectus that testify to SPML's sale of the mortgage to Eurosail is not true. In the event that the prospectus is not true, then SPML maybe the lawful owner. (Note: making SPML prove that the propectus is not true puts them to a real burden - they can't go against what the prospectus said - they'd be admitted to fraudulent misrepresentation - they may bring up the "we only sold the equitable interest" crap - but see my previous posts on that issue so that you have the answer to that nonsense ready).

 

In the event that SPML fail to prove that they have lawful grounds to bring claim against you, that the claim is struck. In the alternative, in the event that the court does not order any correction to the LR, that the court declare that the advance against your property is £50K in accordance with the entry on the LR and order that your mortgage account is re-caluculated on that amount as in accordance with that LR entry.

 

(Note: You do not want them to merely evidence a certified true copy of the deed - you want to see the ORIGINAL document that you signed - they must have actual possession of the ORIGINAL mortgage deed if they wish to assert the deed against you.)

 

Remember littledotty, I am not a qualified lawyer and therefore, this is just a suggestion based on the information as I remember and understand it - so ignor it or adapt it as is necessary to be factually correct. Hope it helps you move forward.

Edited March 24, 2009 by supersleuth

[supersleuth]

Sorry if I have missed it, but has it been established that it is the mortgage and not just the charge that has been transferred to Eurosail ?

 

Suetonis, do Explain!? What do you classify as being a "mortgage" and what do you classify as being a "charge"? And could you let us know what you understand as being the difference between the two?

 

 

Littledotty, if SPML said it was only an offer and not a contract - they probably meant it - or else, why would they say it?

[supersleuth]

Hi Littledotty,

 

If they said it was only a mortgage offer and not a contract then that is actually fantastic for you. They have effectively admitted that there is no contract. If there is no contract then there is no contract to enforce against you in court. If there is no contract then you can get the action struck out on the grounds that they have said there is no contract.

 

You may be looking at what you believe (with very good reason), is a document that LOOKS like a contract - but there are certain legal requirements that have to be met in order for a contract to be enforceable in a court. If those contract law conditions are not met - then whilst the document may look like a contract to a lay person, a lawyer (and a judge) may find that the contract is unenforceable because the formal legal conditions necessary to have a LEGAL AND ENFORCEABLE contract are not met.

 

First thing - could you post the exact text of the paragraph that they sent to you where they say that it is only an offer? - and could you let us know the context of what you had written which prompted them to say that it was only an offer?

 

Second - it will be necessary to actually look at the documents (this one will be a bit tougher - so may need to do it in a PM). But let's establish first whether you have got yourself a fabulous confession from them that there is no contract

 

This could really be great news for you Littledotty....and, as the SPML documentation would be the same documents used for other CAGgers with SPML contracts...it could be good news for everyone.

[supersleuth]

Hi Littledotty,

 

The offer states that it is an offer, and there is an acceptance page which you signed. These are two essential conditions that must be fulfilled (amongst others) to complete a lawfully valid contract. The fact that the first bullet point states that it will be binding on the date of the legal charge a point is an issue, and can get very technical and must be taken into account when making a full legal analysis - but too much to go into here.

 

But to keep it simple, it seems that LMC have not signed the mortgage offer documents. Did you get any other cover letters or documents with the offer document in which LMC signed with the words "for an on behalf of LMC" or something to that effect?

 

The point here is, that s.2 of the Law of Property (Miscellaneous Provisions) Act 1989 is a strict provision that must be complied with when entering into a contract FOR A DISPOSITION OF AN INTEREST IN LAND. When you enter into a mortgage loan agreement, that is a contract for a disposition of an interest in land as you will be signing a deed to grant the lender an interest in your land.

 

Thus, the mortgage loan agreement must comply with s.2, in particular the agreement must be signed by BOTH PARTIES, i.e. both the lender and the borrower and if there is no compliance with s.2 then the law deems such contract VOID.

 

Now don't jump to any conclusions yet, this is very technical and its hard to come to any firm conclusions via this medium. The documents would have to be properly analysed. But at first blush, LMC have not signed the offer document in accordance with s.2, but then one must factor in and consider that the contract was not operating until the date of the signing of the deed.

 

Nonetheless, there is no compliance with s.2 (signed by both parties) on the documents that have been posted. But then again, it seems that SPML may not have Littledotty's deed anyway as there's inaccuracies on her Land Registration title. Again, Littledotty, I think you need to demand that they evidence the original deed that you signed. It is your right to have the original put in evidence....and you may need to go and see a really good contract lawyer....pick a good one, not any old high street clown that will be intimidated by the lenders.

 

It is the signature on your deed that made the contract come into operation and if they can't show your original deed that is another big issue - together with a possible s.2 argument that the contract does not comply with s.2 and therefore MAYBE VOID - on which a good lawyer may be able to successfully fight your defence.

 

If there is no contract - then there is no claim against you because there is no contract for the court to enforce. Finally, caution!!! Do not jump to any firm conclusions through this post that there is or is not a contract. Really need to see a lawyer to do the full legal analysis, but on the face of what is here - it is worth asking a lawyer the question - in fact, another way of getting a good legal opinion on this issue is to choose a good barrister who has a good track record in contract law and then just use the solicitor to instruct the barrister to give a legal opinion on the question. Google legal hub and barrister directories to find the appropriate barrister you may want to use and/or try to find the barrister pro bono unit - i.e. where they do work for free - pro bono publico (for the public good).

 

Anyway, even if you can't get a lawyer (as is the same for most of us), there's no harm in raising the s.2 point with the judge at your next hearing together with the tactic admission of the lender that the document was only and offer and therefore, not a contract.

 

What exactly was the point that you had raised that they said they didn't understand?

 

And, with respect to their assertion that the IFA was YOUR agent...there is a provision in the CCA which states something to the effect that where the lender pays the IFA a commission, the IFA will be deemed to be the agent of the LENDER. This agency point is also important...but haven't got time to go into it...you want the IFA to be their agent so its worth finding that CCA provision. Does anyone know it off the top of their head? I'm thinking maybe CCA s.58????

 

Good luck

Edited March 28, 2009 by supersleuth