JimUk1 wrote:
http://forums.moneysavingexpert.com/sho ... p=72296782
And an exert from "ThisMoney" on why home owners need not worry if thier mortgage was bundled and sold as a security-
What does it mean for mortgage borrowers?
You will probably not even notice if your home loan has been securitised. You still make your repayments to the original lender. There have been no scandals affecting borrowers linked to securitisation in this country.
It has been a long established point of law that securitisation of a mortgage, in the UK by itself has no impact upon it unenforceable
Paragon Finance Plc v Pender & Anor [2005] EWCA Civ 760 (27 June 2005)
http://www.bailii.org/ew/cases/EWCA/Civ/2005/760.html
CONCLUSIONS
The title to sue issue
109. In my judgment Mr and Mrs Pender's case on this issue is misconceived. It is common ground that Paragon, as registered proprietor of the Legal Charge, retains legal ownership of it. One incident of its legal ownership – and an essential one at that – is the right to possession of the mortgaged property. I can see no basis upon which it can be contended that an uncompleted agreement to transfer the Legal Charge to the SPV (that is to say an agreement under which, pending completion, the SPV has no more than an equitable interest in the mortgage) can operate in law to divest Paragon of an essential incident of its legal ownership. In my judgment as a matter of principle the right to possession conferred by the Legal Charge remains exercisable by Paragon as the legal owner of the Legal Charge (i.e. as the registered proprietor of it), notwithstanding that Paragon may have transferred the beneficial ownership of the Legal Charge to the SPV.
110. It follows, in my judgment, that Paragon, so long as it remains the registered proprietor of the Legal Charge, is a necessary party to any claim to possession of the Property in right of the Legal Charge.
111. The only question then is whether the SPV should have been joined in the proceedings as an additional claimant. In my judgment, the answer to that question is plainly: No. On the assumption that the consideration for the transfer of the Legal Charge has been paid in full, Paragon has since retained its legal ownership of the Legal Charge as trustee for the SPV (see Whiteley v. Delaney [1914] AC 132 at 141 per Viscount Haldane LC). But it does not follow that in that situation the SPV, as the owner of the Legal Charge in equity, is a necessary party to the claim; and on the facts of the instant case joinder of the SPV is wholly unnecessary. There is, after all, no issue between the SPV and Paragon as to the exercise of the mortgagee's rights under the Legal Charge: indeed the SPV has, by virtue of the administration agreements, expressly authorised Paragon to exercise such rights on its behalf.
112. In my judgment, therefore, there is no substance in the contention that the SPV should have been joined as an additional claimant in the proceedings. Nor, in my judgment, can the fact that Paragon has failed to describe itself as suing in its capacity as trustee affect the validity of the proceedings or of the orders made in the proceedings (in particular, the possession order). In any event, even if that failure could be said to amount to a formal defect in the proceedings (and I do not regard it as such) the court has ample powers under the CPR to correct such defects (e.g. under CPR Pt 17).
113. In my judgment Mr Page's reliance on section 114 of the Law of the Property Act 1925 is wholly misplaced, for the reason which the judge gave: viz. that section 114 is concerned with transfers of mortgages of unregistered land (transfers of mortgages of registered land being dealt with by section 33 of the Land Registration Act 1925). To interpret section 114 as applying also to transfers of mortgages of registered land would produce a fundamental and wholly illogical conflict between the two regimes in relation to transfers of mortgages. Bearing in mind what Lord Oliver of Aylmerton said in Flegg (quoted in paragraph 85 above), I can see no conceivable basis for interpreting section 114 in a way which produces that result and every reason for not doing so. Accordingly I respectfully agree with the observations of this court in Marks with reference to the instant case (see paragraph 95 above).
114. Nor, in my judgment, can Mr Page find any support for his submission in the Land Registration Act 2002, or in the Law Commission Report which preceded it. In my judgment it is verging on the absurd to seek to interpret a provision in a statute by reference to a provision in a different statute enacted some eighty years later.
115. In any event, I agree with the judge that the administration agreements demonstrate a clear contrary intention, sufficient to disapply section 114 if (contrary to the conclusion which I have just expressed) the section would otherwise apply.
116. As to Mr Page's reliance on section 136 of the Law of Property Act 1925, that too is in my judgment misplaced. He fails to distinguish between the right to sue at law for the mortgage debt and the proprietary interest created as security for its repayment. Section 136 applies only to the former.
117. Accordingly in respectful agreement with the judge I reject Mr Page's submissions on the title to sue issue.
Freeman/Sov Cit's latched onto securitisation, after Carmel Butler, a US trained lawyer, living in England got into arrears with her mortgage and a layman with no known legal qualifications in the UK, submitted as part of a public review of mortgages by parliament a memo.
https://publications.parliament.uk/pa/c ... 44w273.htm
At the time, Freeman thought the memo had been submitted in some form of 'expert' or qualified capacity rather than just as a homeowner that was defending repossession, using the argument that when a mortgage has been securitisied, the lender has no loci standi
http://markwadsworth.blogspot.co.uk/200 ... e-law.html
However, as with most of the freeman guru's, things did not go well for Ms Butler
20 July 2009 at 14:54
Anonymous said...
Case Reference: B5/2009/1187
Title: Basinghall Finance PLC v Butler
Type:Permission to Appeal
Appeal/Application: for permission to appeal and a stay of execution
Hearing Status: Fixed on 27-Oct-09
Venue: London
Constitution: THE PRESIDENT OF THE FAMILY DIVISION
Case Result: Refused on 27-Oct-09
Tracking Information:
27-Oct-09: Case given a final judgment
06-Aug-09: Case renewed to oral hearing
31-Jul-09: Case passed to Associate for Order to be drawn
30-Jul-09: Permission to Appeal referred to Lord/Lady Justice
15-Jul-09: Bundle(s) approved
08-Jun-09: Letter sent to applicant/solicitor to request bundles and/or documents
