UK DD clawbacks and Simon Goldberg

[ForumWars]

I think that we both know that the real value of the instrument is zero and I have previously stated that it is my opinion that this trading (that was carried out over many years) was a large contributory factor in the banking crash of a few years ago.

The securitization of mortgages was behind the global financial crisis of 2008, and securitization is a form of trading debts, albeit different from the sale of defaulted accounts to debt purchasers who specialise in acquiring delinquent accounts. In this case, the purchaser pays a small fraction of the book value of the debt with the full knowledge that it's a delinquent account which may or may not be recoverable.

The mortgages were still live and secured on property when they were traded, and could also be traded once they'd been defaulted (CDS, etc.). However, the fact that all this rather dodgy trading went on behind the scenes had no effect on the borrowers, who were still expected to keep repaying their mortgages plus interest. Even when the lenders went bust, the loans were taken over. Borrowers were not allowed to keep their house or even pay a reduced amount or a lower interest rate, hence the large number of mortgage defaults leading to mass repossessions and a crash in house prices, which, in turn, made some MBS almost worthless.

It was all rather dodgy, but there was no benefit for the borrower, no get out of debt card resulting from the shady dealings that took place between various types of financial institutions.

I think we also know that no physical cash was paid and it was just figures entered onto a balance sheet somewhere but (on paper at least) this contributed into falsifying a banks profits.

Physical cash does not change hands, the financial sector runs on database entries. Fractional reserve banking means banks can lend something like £10 for every £1 they have in actual deposits. When they say they are lending money, they are not actually letting you have any of their own money, they're pretty much plucking it out of thin air. That's why I've always said there's a difference between owing money to individuals and business and owing it to financial institutions.

If you don't pay your builder, he will have trouble feeding his family and carrying on with his trade. If you don't pay your credit cards or repay your bank loans, the bank will just write off the balance as a "loss" for tax purposes and sell it on for a nominal amount. That means I personally don't think there is a MORAL obligation to repay banks (for the reasons above) but that doesn't mean there is no LEGAL obligation to do so.

If you look back, you'll find that, a few years ago, the banks themselves used to take people to court over unpaid loans, overdrafts and credit cards, just look at the number of judgments involving banks. In the last three years or so, hardly anyone is taken to court by a bank, virtually all money claims for regulated credit products are issued by debt purchasers. The banks seem to have decided to sell on their delinquent accounts for a pittance rather than going to the trouble and expense of litigating them. Maybe they all got a bit wary after Santander got spanked with c. £50k worth of costs against them for a £5k credit card debt they tried to recover in 2012, which the court ruled unenforceable.

It should be noted that the reason it was unenforceable was to do with the lack of a proper agreement for the credit card which had originally been just a storecard and nothing to do with the trading of debts, as Santander had not sold it on. There have been cases where the debtor has won in court due to issues with the assignment but they are not the majority. In most cases, the new creditor just can't get hold of the required paperwork, or the paperwork turns out to have been defective or non-existent to start with.

The reason that this argument is frowned upon so fiercely on here is because it has been hijacked by fmotl (albeit in a misconceived fashion).

None of what I've posted above has anything to do with FMOTL. There are times when you can "get out of debt free", quite literally, simply because the other side screwed up. That happens, quite often by the sounds of it, due to the intrinsic arrogance of the financial sector. The FMOTLs just cherry pick those bits that suit them and use them to piece together their own, alternative version of reality.

[Bones]

I ask you Fred-What other institution systematically gets rid of vital original documents and then replaces them with photocopies.

The Land Registry

http://www.lawsociety.org.uk/support-se ... uirements/

If you send an original document after June 30, Land Registry will accept it, but it will be scanned and then destroyed.

Land Registry currently returns original documents that are submitted with certified copies. After June 30, this will no longer happen: Land Registry will destroy both the original document and certified copies after scanning.

http://www.landtitleinvestigations.co.u ... -documents

However, as land transactions have become more frequent and faced with an enormous bill for posting documents back to applicants, the Land Registry recently changed its policy. Since 30 June 2014, the Land Registry will not automatically return original documents to people who send them in. Instead, they now have the power to destroy those documents. They will, of course, scan copies of the documents that are relevant to the legal title, but after they have been scanned and uploaded into the Land Registry system, the originals may then be destroyed. We checked a couple of days ago with our local Land Registry and they confirmed that they are pursuing this policy and original documents are now being sent to be destroyed.

Welcome to the 21st Century and the modern age of technology

[doublelong]

And that’s the problem with the insistence of asking for the original documents everything is a copy. Receipts, bank statements, birth certificates, everything. The letter they send out to tell you that you have missed a payment is a copy; it says so when you press print! Even the old carbon paper loan agreement was a copy, it said so on the top.
Ironically when these freetards refuse to look at a warrant on the ipad that is closer to the original than the paper version they are insisting on.

[littleFred]

Thanks for the reply, Tuco. You didn't seem to know the answers to my questions, which is fair enough.

People who insist that the pieces of paper are sold, independently of the agreements they represent, don't know why the paper has any value, or who would buy them, or how they make any profit from them. They merely assert, with no explanation or evidence, that this happens.

I won't try to persuade you otherwise. But I hope you will think about these questions for yourself.

[longdog]

People who insist that the pieces of paper are sold, independently of the agreements they represent, don't know why the paper has any value, or who would buy them, or how they make any profit from them.

I think it goes like this.

The act of signing the credit agreement creates money through the fractional reserve banking system. It's sort of true but very simplistic.

A credit agreement can be sold or, more accurately the loan can be sold to a third party.

An unsigned loan agreement not made out to anybody can't be sold (because it's not actually a loan of course).

If a loan based on a signed agreement can be sold but an unsigned agreement made out to nobody can't then the signature MUST have value.

Therefore the signature has value.

Therefore the signature IS the money.

Therefore the signed agreement IS the money.

If you follow all of that convoluted 'logic' then the paper has a value independent of the loan to which it relates. This is of course total cobblers.

[littleFred]

I think it goes like this. [...]

I would say: yes, the signature has value, but only to the extent that it executes the agreement. The thing with value is the agreement.

I suppose Tuco and we are on common ground that the agreement has value. Someone lends me money, I pay it back plus interest, knowing that they borrow more cheaply than they lend to me. This will give them profit, and they can sell some or all of that future profit to someone else in return for some money now.

Back in the old days, the physical paper was the only evidence of the agreement. So it had value. But the value was only that of the agreement.

It's this extra value I'm trying to understand. We are told the paper has some extra value on top of the agreement. That it can be, and is, bought and sold many times, vastly increasing someone's wealth.

But what is that extra value? Where does it come from? When someone buys the paper, how do they make a profit from it? They won't get any extra money from me. I'll just pay back the principal plus interest, and no more, however many times the paper is sold on.

I conclude that the paper itself (even with my signature) has no more value than the agreement.

[AndyPandy]

What's interesting though is that under any Court action, any document upon which the claimant is to rely and is contained in a Court Bundle they have to bring the original to Court

Civil Procedure Rule 39 - Practice Direction 39A

3.3 The originals of the documents contained in the trial bundle, together with copies of any other court orders should be available at the trial.

And Standard Directions issued for the Small Claims Track say the originals have to be brought to a hearing.

THE COURT DIRECTS:

1 Each party must deliver to every other party and to the court office copies of all documents on which he intends to rely at the hearing no later than [ ] [14 days before the hearing]. (These should include the letter making the claim and the reply.)

2 The original documents must be brought to the hearing.

3 [Notice of hearing date and time allowed.]

4 The parties are encouraged to contact each other with a view to trying to settle the case or narrow the issues. However the court must be informed immediately if the case is settled by agreement before the hearing date.

5 No party may rely at the hearing on any report from an expert unless express permission has been granted by the court beforehand. Anyone wishing to rely on an expert must write to the court immediately on receipt of this Order and seek permission, giving an explanation why the assistance of an expert is necessary.

[littleFred]

Yes, so a judge might (in theory) dismiss a claim on the basis that the original paper of the agreement was no longer available. I don't know if this ever happens. I think it is used to give false hope to GOOFies.

It doesn't add any weight to the theory that the paper has any extra value on top of the agreement.

[AndyPandy]

Yes, so a judge might (in theory) dismiss a claim on the basis that the original paper of the agreement was no longer available. I don't know if this ever happens. I think it is used to give false hope to GOOFies.

It doesn't add any weight to the theory that the paper has any extra value on top of the agreement.

So basically, if you're a claimant and you're ordered to bring the original documents to Court, you don't have to actually comply with that order?

[littleFred]

Neither party has to, in the sense that the judge won't chuck them in jail, or automatically reject their case. The judge may, or may not, use that as weight against that party's argument.

[AndyPandy]

Neither party has to, in the sense that the judge won't chuck them in jail, or automatically reject their case. The judge may, or may not, use that as weight against that party's argument.

Then what's the point of issuing an order which says the originals have to be brought to Court if neither party has to comply!?

A Court Order is a Court Order, you don't get to pick and choose the bits you want to comply with.

Surely as a defendant you have the right to say 'can I see the original of (say) the agreement as per the Court Order dated xx/xx/xxxx' and the claimant says 'we don't have it', that's a breach of the Order - a Judge is then going to say 'that's OK you don't have to comply with that bit of the order'!

Hmmm not sure about that!

[Bones]

Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009)
http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html

Relief

232. There is no claim that there is an unfair relationship here. As to the claims for relief based upon an IEA, as set out in paragraphs (1) and (5) of the Particulars of Claim, they should be struck out on the grounds that no reasonable grounds for the claim are made out and the claim has no real prospect of success. As with Adris I would also strike them out on the grounds that they are speculative and hence an abuse of process.

233. As to the s78 claim, insofar as the allegation of breach is based on the absence of a signed copy, that particular allegation should be struck out because there is no obligation to provide such a copy. Insofar as there remains an issue (albeit unpleaded) about the absence of a name and address, it would be wrong to strike out the claim in relation to s78 altogether. Whether there will in reality be anything left may depend on the production by Barclays of the name and address and the other information referred to in paragraph 113 above. The question of the appropriateness of any declaratory relief in the form of paragraph (2) (a) of the prayer also arises. These are matters on which I will hear submissions following the handing-down of this judgment. I will equally hear Counsel on paragraph 4 of the Prayer. I was not addressed on this by Counsel but as presently advised, I do not see how this can survive the decision of Flaux J in McGuffick

SUMMARY OF FINDINGS

234. The following is a brief summary of the principal findings and conclusions set out above:

(1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;

(2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;

(3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;

(4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;

(5) If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A;

(6) The Court has jurisdiction to declare whether in a particular case, there has been a breach of s78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case;

(7) In assessing whether Prescribed Terms are "contained" in an executed agreement the principles set out at paragraph 173 above are relevant. On the assumed facts set out at paragraph 177 the Prescribed Terms were so contained;

(8) The claims that there was an unfair relationship and an IEA in Adris should be struck out or dismissed. The claim that there was an IEA in Yunis should be struck out or dismissed. The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the IEA claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim other than failure to provide a s78 copy, was fatal to that claim.

235.Following the handing down of this judgment, I will hear Counsel on the form of the various orders that will need to be made, any further directions in relation to the cases with which I have dealt and all other consequential matters.

[littleFred]

Carey is a bit different, in that the judge may not have ordered "The original documents must be brought to the hearing".

The reason for the order is to prevent there having to be an adjournment if either side claims a copy document isn't a true copy of the original. Without that order, the parties would have to go away and come back again, which costs time and money.

Surely as a defendant you have the right to say 'can I see the original of (say) the agreement as per the Court Order dated xx/xx/xxxx' and the claimant says 'we don't have it', that's a breach of the Order - a Judge is then going to say 'that's OK you don't have to comply with that bit of the order'!

Yes, either side can say that. And the judge can reply, "Why do you want to see the original? Do you allege the copy is a forgery?" The claimant might say, "Yes." The judge might eventually rule that he wasn't satisfied that the copy was real, so the claim falls. I haven't heard of this happening. It might do, but it must be very rare. A defendant would be unwise to rely on this as a defence.

As Bones points out, Carey makes it clear that a s78 doesn't require a signed copy or original, and it never did, before or after 2007 (despite Faljay's untruths). Moreover, I have seen no statute or case law that requires original documents to be shown in court.

[longdog]

If I read it correctly a party has to produce the original document if, and only if, they are relying on the original because it's an original.

If they intend to rely on a copy or a reconstituted document the original is irrelevant and so they don't need to produce it.

[Gregg]

I think that we both know that the real value of the instrument is zero and I have previously stated that it is my opinion that this trading (that was carried out over many years) was a large contributory factor in the banking crash of a few years ago.

The securitization of mortgages was behind the global financial crisis of 2008, and securitization is a form of trading debts, albeit different from the sale of defaulted accounts to debt purchasers who specialise in acquiring delinquent accounts. In this case, the purchaser pays a small fraction of the book value of the debt with the full knowledge that it's a delinquent account which may or may not be recoverable.
Umm, no. Banks that securitized bundled mortgages made the assumption that 1000 loans rated BBB or worse could become AAA rated by diversity, a theory that still has some validity but they didn't divesify them right, and in the end thy found out that piling garbage really high gives you a pile of garbage and not a tower of stability.

The mortgages were still live and secured on property when they were traded, and could also be traded once they'd been defaulted (CDS, etc.). However, the fact that all this rather dodgy trading went on behind the scenes had no effect on the borrowers, who were still expected to keep repaying their mortgages plus interest.
The lending and trading didn't go on behind anyone's backs, these transactions were public, and they weren't dodgy, they were just set up by some people who were really smart and sold to people who thought they were really smart, but weren't. At the base of the long stack of bad assumptions was "people will pay their mortgage before they pay other debts when they're in trouble" which turned out to be wrong when real estate prices started dropping and they were upside down in the property
Even when the lenders went bust, the loans were taken over. Borrowers were not allowed to keep their house or even pay a reduced amount or a lower interest rate, hence the large number of mortgage defaults leading to mass repossessions and a crash in house prices, which, in turn, made some MBS almost worthless.
The first event that occurred was the drop in housing prices which led to the defaults, not the other way around.

It was all rather dodgy, but there was no benefit for the borrower, no get out of debt card resulting from the shady dealings that took place between various types of financial institutions.

Correct, those loans still existed and the payments still had to be made, in the US the Federal Reserve bought a bunch of them which was at the same apparently illegal and also a demonstration that the term illegal doesn't really apply to anything the Federal Reserve wants to do and some Deity doesn't actively object to them doing

I think we also know that no physical cash was paid and it was just figures entered onto a balance sheet somewhere but (on paper at least) this contributed into falsifying a banks profits.

Thoswe figures on a balance sheet are the sam thing as cash as far as a bank goes.

Physical cash does not change hands, the financial sector runs on database entries. Fractional reserve banking means banks can lend something like £10 for every £1 they have in actual deposits. Up until here you're close enough to correct When they say they are lending money, they are not actually letting you have any of their own money, they're pretty much plucking it out of thin air. But here you skpped off to woo land That's why I've always said there's a difference between owing money to individuals and business and owing it to financial institutions. ANd here you doubled down on wrong. Owing money to say, Citibank is the same as owing money to me, because I happen to own stock in Citi and another bank

If you don't pay your builder, he will have trouble feeding his family and carrying on with his trade. If you don't pay your credit cards or repay your bank loans, the bank will just write off the balance as a "loss" for tax purposes and sell it on for a nominal amount. That means I personally don't think there is a MORAL obligation to repay banks (for the reasons above) but that doesn't mean there is no LEGAL obligation to do so.

Your bank did not create the money they paid the builder with out of thin air and your signature. Your builder created that money when he took a pile of sticks and hardware worth 20,000 pounds and made it into a house you are paying 100,000 pounds for. The difference between what he spent and what he was paid is in fact newly created wealth, wealth that is monetized by the new notes being put into circulation when you pay the builder. That is how money is created, new tangible wealth is created and at some point in this wealth creation cycle/process a bank pys someone involved with new money. Responsible Central Banks try to match the growth of the money supply to the growth in wealth, irresponsible Central Banks eventually end up printing $100 Trillion Dollar notes that are worth 5 cents american until they are demonetized and then bring $20 on E-bay and from people who are also hoarding Iraqi Dinars


If you look back, you'll find that, a few years ago, the banks themselves used to take people to court over unpaid loans, overdrafts and credit cards, just look at the number of judgments involving banks. In the last three years or so, hardly anyone is taken to court by a bank, virtually all money claims for regulated credit products are issued by debt purchasers. The banks seem to have decided to sell on their delinquent accounts for a pittance rather than going to the trouble and expense of litigating them. Maybe they all got a bit wary after Santander got spanked with c. £50k worth of costs against them for a £5k credit card debt they tried to recover in 2012, which the court ruled unenforceable. this has top do with changes in the laws to both issue and collect on debts and not on their validity in general

It should be noted that the reason it was unenforceable was to do with the lack of a proper agreement for the credit card which had originally been just a storecard and nothing to do with the trading of debts, as Santander had not sold it on. There have been cases where the debtor has won in court due to issues with the assignment but they are not the majority. In most cases, the new creditor just can't get hold of the required paperwork, or the paperwork turns out to have been defective or non-existent to start with.

I dunno the minutia of how UK debts are different from the US, but over here, in most non-mortgage loans they no longer have to keep the physical original loan agreement and any number of other things can be used to establish that a valid debt exists. One thing you can do that tends to convince courts the debt is real is to cash the check, take delivery of the car, use the cards...your taking advantage of the benefits of the alleged agreement can be proof that it exists and you know and knew it exists.

The reason that this argument is frowned upon so fiercely on here is because it has been hijacked by fmotl (albeit in a misconceived fashion).

None of what I've posted above has anything to do with FMOTL. There are times when you can "get out of debt free", quite literally, simply because the other side screwed up. That happens, quite often by the sounds of it, due to the intrinsic arrogance of the financial sector. The FMOTLs just cherry pick those bits that suit them and use them to piece together their own, alternative version of reality.

[Tuco]

Words, words, words.

How about some verifiable proof to support your allegations?

Otherwise, drop it.

Drop what?

How about some verifiable proof some of the other muppets to support the crap that they have come out with?

Please explain to me what my "allegations" are?

You say they abandoned legal action because you convinced them your bullshit scared them off. No I didn't-You just added that for valueAnd they told you that was the reason, you filed a counterclaim and they surrendered in fear of your legal prowess. I have not professed any legal prowess. In fact reading back on my defence and counterclaim, it is quite cringeworthy. Fortunately, the bullet points appear to have been enough to help make them accept my offer to withdraw, on the basis that they did the same
A copy of the letter would do. A copy of what letter? The one that you've just invented or a copy of the letter from them accepting my offer?
This isn't something that they would call you on the phone and tell you. So, if you can't show us the letter, which should caption a court case that could be verified, I'm calling you a liar.I've been callled a lot of silly names on this forum but the one thing I am not is a liar-I have no need to lie as I have nothing to prove.

And because I and others in management are nigh fed up with you trying to compensate for your underlying self loathing by telling tales on our forum, I am hereby invoking a longstanding policy we have regarding people who brag about flouting the law. FYI I have not "flouted the law". I followed the law to a "T". In the Uk we have a body of laws that deal specifically with the rights and duties of both individuals and organisations. Where disputes are in place, an avenue exists to resolve the issue by way of the civil procedure process. That is exactly what happened in my case and I was able to reach an amicable settlement with the DCA, without the need to go as so far as to trouble the court. In the future, any claim you make in reference to breaking the law or beating your creditors should be accompanied by verifiable proof lest it be deleted. In short, if you claim it, prove it, and if you won't or can't prove it, ho;d your lying tongue. You have come out with some pretty bold claims yourself in this post. How about you lead by example and provide me with some proof that I am a liar and that I have flouted the law?

[Tuco]

Thanks for the reply, Tuco. You didn't seem to know the answers to my questions, which is fair enough.

People who insist that the pieces of paper are sold, independently of the agreements they represent, don't know why the paper has any value, or who would buy them, or how they make any profit from them. They merely assert, with no explanation or evidence, that this happens.

I won't try to persuade you otherwise. But I hope you will think about these questions for yourself.

Fred-I have never professed to know what happens after the agreement is traded, indeed I stated as much earlier on in the thread. I have my ideas as to the answers but it really is irrelevant. Once that agreement leaves the lenders hands, the DPA has been breached and that is my argument. Some may not care if their data is spread anywhere and everywhere. I personally do and I would hope that you would respect my right to protest about this happening?

[Tuco]

Neither party has to, in the sense that the judge won't chuck them in jail, or automatically reject their case. The judge may, or may not, use that as weight against that party's argument.

Then what's the point of issuing an order which says the originals have to be brought to Court if neither party has to comply!?

A Court Order is a Court Order, you don't get to pick and choose the bits you want to comply with.

Surely as a defendant you have the right to say 'can I see the original of (say) the agreement as per the Court Order dated xx/xx/xxxx' and the claimant says 'we don't have it', that's a breach of the Order - a Judge is then going to say 'that's OK you don't have to comply with that bit of the order'!

Hmmm not sure about that!

Can I just point out that my issue is not that they cannot produce the original per se. My issue is that the original contains my private data and there was a duty to protect this data. A failure to keep hold of the original is a failure to adhere to a term of a contact entered into. I have every right to enquire as to the whereabouts of that data, it is after all mine. I also have every right to enquire as to whom exactly has had access to this data.



Simply losing an agreement behind a filing cabinet is no excuse, neither is claiming that it is in a box somewhere gathering dust. It is noteworthy that they can put their hands on the photocopies quickly enough.

[Tuco]

Ironically when these freetards refuse to look at a warrant on the ipad that is closer to the original than the paper version they are insisting on.

There is actually no requirement in statute for a bailiff to carry the warrant with him when he visits a debtor.

[Pottapaug1938]

Can I just point out that my issue is not that they cannot produce the original per se. My issue is that the original contains my private data and there was a duty to protect this data. A failure to keep hold of the original is a failure to adhere to a term of a contact entered into. I have every right to enquire as to the whereabouts of that data, it is after all mine. I also have every right to enquire as to whom exactly has had access to this data.

Simply losing an agreement behind a filing cabinet is no excuse, neither is claiming that it is in a box somewhere gathering dust. It is noteworthy that they can put their hands on the photocopies quickly enough.

If the original has been destroyed, as many of the previous posts indicate is increasingly the case in the 21st century, then the whereabouts of that data are probably in a box somewhere, well blended with other recycled paper and now used as packing material. It is completely illegible.

As for your assertion that "[a] failure to keep hold of the original is a failure to adhere to a term of a contact entered into", that is only correct if the original contract provides that the originals must be preserved; and even then the remedy for destruction of the originals is rarely going to result in the contract being void or voidable.