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Sappho
22nd August 2012, 21:48
The Acenden Action site has been closed down but had in just two years over 100000 hits. The site was supporting a large number of people to resist attempts at repossession by Acenden a DCA acting on behalf of a range of former Lehman companies such as Southern Pacific Personal Loans, Southern Pacific Mortgage, Preferred and London (or London Matlock) and others. All loans and mortgages are defined as non-conforming ie sub-prime although when they were offered for sale by the brokers they did not necessarily make this clear and not everyone had bad credit histories. In 2005 to 2007 there were a lot of so-called "independent" financial advisors who in reality offered only Lehman loans.

Unbeknowst to borrowers two things happened once they had signed the loan documents a) the debt was immediately placed with a DCA called Capstone (later Acenden) and b) it was sold to a special purpose vehicle or SPV, who did not register the sale with the Land Registry. Charitable trusts were set up by the new owners of the debt with the Bank of New York Corporate Trustee Services.

The unfortunate borrower thought they had a loan or mortgage but it never existed, it was a mortgage backed security. The customers of the SPV are the investors not the borrowers.

The job of the DCA was then to get the account into default. Of course, sometimes people were late paying or fell on hard times and fluffed some payments. This then triggered a barrage of excessive charges including a litigation fee of 115 which would be applied for every month the account was in arrears. Acenden had a rule that the property had to be insured by them if the borrower did not produce a copy of their house insurance and charged 50 to cancel theirs. Many people fell foul of this because they did not realise they were paying for two insurances.

Then applications for repossession. Usually they settled for a SPO and then pounced later. Even an adjourned application if you managed to beat them off before court, cost between 400 - 650 and a couple of those a year would really bounce up the charges.

Because all loans/mortgages were really MBS's the DCA would not entertain capitalisation of arrears or an extension to terms.

so what does this mean in reality? Well we got into a pickle when illness meant we could not make three payments. The first attempt at repossession occurred during the period when we were claiming on PPI, the second whilst the payments were being made by their insurers. The third attempt was when we were three weeks late paying. Although we speedily made up the payment we were still taken to court three months later. The costs of three adjourned court actions total 1700.

According to the Acenden Action site our experience is typical and many lose their homes. If they do properties are marketed at a 60% discount as they have to be sold within 90 days. Fees have reportedly been as high as 40000 on top of the loss in equity.

so what are the issues
1. Securitisation including the misselling, the registration gap, the creation of a MBS from a loan without the knowledge or consent of the borrower is a dead duck. It appears legal and if it isn't no-one will challenge the legality.
2. The first charge issues concern the FSA who have been worse than toothless. The second charge issues are in the province of the OFT -which is where I think you guys might have some useful insights as the agreements are CCA 1974 even though they are secured loans.
3. Unenforceability is not possible. The documentation is robust, bearing in mind these guys expect to take the borrower to court.
4. The CCA 1974 issues are:
a) does the SPV the owner on paper of the charge need a CCL? Eurosail INC let theirs lapse in March this year. CAG advice is that they don't need one as long as the DCA has one.
b) Terms and conditions have a tarif of charges, all excessive and unfair. There is no clause that says they have the right to vary them. But they have three times over. The FSO reportedly has ruled that their charges are "fair" though they are higher than Swift, Kensington, Deutsche Bank, Gmac all of whom were fined for having charges that do not reflect the true cost of any enforcement action. The FSO have completely failed to address a complaint from me about the variation of the tarif of fees (I did not make a complaint they were unfair)
c) The OFT guidelines apply on Unfair Practice. Amongst other things a company should take into account illness of the borrower when considering enforcement, apply for repossession only when all attempts to reach a negotiated agreement have failed, repossess only when it is in the interests of the borrower, gives consideration to an extension of the term of the mortgage or other variation which would help the borrower. They are prohibited for applying for possession when there is a dispute about the level of charges and so on.... Acenden say quite openly they do not have to pay any heed to the OFT .... and the FSO have ignored a complaint from me on this point.

The point I am at is that I have had a final letter from FSO which I have challenged. I haven't been successful on the issue of legal fees as the FSO say they can go to court if there are arrears without taking into account that the unfair charges he has insisted they remove would have meant there were no arrears. The FSO won't tell me if the company needs a CCL, nor will it agree that the OFT guidelines apply. We are currently in an arrangement to pay back the legal fees.

I really would like someone to take a squint at my terms and conditions and tell me where and how it says they can charge what they like.

Sappho
23rd August 2012, 14:54
I would have welcomed Niddy having a look at my terms and conditions and the CCA agreement but the goal posts have now shifted in a direction I did not expect. I have a good true copy of the CCA 1974 agreement with our signatures on. I have a copy of the mortgage deed we signed (and is witnessed) and on the back are the mortgage conditions. In neither does it refer to the right of the originator of the loan to vary the terms and conditions and I complained about this to the FSO. The adjudicator replied to me today quoting three clauses that are not in either document. I rang him up to question this and he quoted from a separate document called "terms and conditions of the loan" that Acenden had sent him. I don't have a copy of this. I don't think we ever had a copy of this, though obviously I can't prove this. On the other hand they won't be able to prove they sent it to us. I asked the adjudicator whether there was anything to show we had signed to say we had seen it, but there isn't. I did have a PPI complaint to the broker in 2008 who sent me copies of all documents and it included the mortgage conditions but nothing that represents the "terms and conditions" that the FSO have been sent.

Can there be two sets of "terms and conditions"? One for a "mortgage" and one, quite different, for the "loan" for the same loan? which applies?

PlanB
23rd August 2012, 15:13
:helloooo Did the Acenden Action website seek collective legal advice on these mortgage products or was it more of a group hug for victims of possible unlawful repossessions :icon_hug::icon_hug::icon_hug:

I ask this because there are two specialist solicitors firms who deal with class actions in this area of law. It's very complex with its roots in the USA banking system. Pass the parcel with the pre-sold mortgages makes the chain of legal liability a bit complicated to say the least. GMAC was a US warehouse lender who sold mortgages to British building societies before the customer had even made the application.

Are you still in touch with other members of the action group? I could name these law firms on here to help you but you'd need to ask Niddy's permission first before I would be willing to do that :salute

Sappho
23rd August 2012, 15:58
I think "group hug" is a bit harsh! Legal advice there was in plenty, and class action was often mooted. However, even a class action requires money up front and most people had to fight their own actions as litigants-in-person. With sound advice and moral support many people were able to put up a decent challenge. You have to remember that repo takes place in County Courts in five minute hearings and wider issues cannot be discussed. A class action would need a High Court hearing and would involve 6 figure legal costs.

I would love to challenge the whole basis of these toxic debts, as would many others, but case-law has determined that securitisation is lawful.(Pender being one) On the CAG forums the issues around securitisation are being discussed in lengthy threads. However, the issue that seems important to me is the simple point that the consumers never were informed about what was going to happen with their loan. We signed agreements to say the loans could be sold but no-one in their wildest imaginations could have predicted what was going to happen - no-one outside the industry, I mean. It is a simple misselling point as no-one would have agreed had they been told nor accepted the situation as it unfolded.

However, securitisation has the support of government. Lehman's were taken over by Barclays. PwC is heavily involved - and they are well known to have been advising this govt both before and after the last election. The FSA is a weak regulatory body, the OFT does not even accept complaints from consumers, and the FSO are powerless to rule on issues of principle.

We are not even allowed to take a complaint about the DCA mismanaging the accounts to the FSO although the company is FSA regulated and has a CCL. The FSO will not accept any complaint about them! And because this company has no complaints it has a triple A rating with Moody's, Fitch and S and P!! And because there are no complaints, because there cannot be any, I cannot even ask my MP to get involved because they are a company that is blemish-free!!

There is a little bit of light on the horizon as second charge loans will be regulated by the successor body to the FSA - but in 2014, by which time the embarrassment that is the former Lehman operation will be history as all the debts will have been redeemed.

I am sorry to be so negative, the spirit is definitely willing but no-one has the kind of money to mount any kind of campaign.

PlanB
23rd August 2012, 16:09
A class action only requires half a dozen winnable cases and the rest cash in on the success of those. But as you say you've already had plenty of legal advice.

Sappho
23rd August 2012, 18:02
Well, what we need at the moment is some proper legal advice from a firm of solicitors at least theoretically prepared to take on this kind of stuff, and to do the preliminary work pro-bono. Trouble is to establish whether you have an arguable case costs a fortune. And if it did get into court the litigants have to pay the other sides costs whether the case succeeded or not. It is a very unfair system as litigants-in-person have no only to prepare their own case because they can't afford a solicitor to be with them in court but have to pay the other sides costs as well.

Pixie
23rd August 2012, 19:10
I would have welcomed Niddy having a look at my terms and conditions and the CCA agreement but the goal posts have now shifted in a direction I did not expect. I have a good true copy of the CCA 1974 agreement with our signatures on. I have a copy of the mortgage deed we signed (and is witnessed) and on the back are the mortgage conditions. In neither does it refer to the right of the originator of the loan to vary the terms and conditions and I complained about this to the FSO. The adjudicator replied to me today quoting three clauses that are not in either document. I rang him up to question this and he quoted from a separate document called "terms and conditions of the loan" that Acenden had sent him. I don't have a copy of this. I don't think we ever had a copy of this, though obviously I can't prove this. On the other hand they won't be able to prove they sent it to us. I asked the adjudicator whether there was anything to show we had signed to say we had seen it, but there isn't. I did have a PPI complaint to the broker in 2008 who sent me copies of all documents and it included the mortgage conditions but nothing that represents the "terms and conditions" that the FSO have been sent.

Can there be two sets of "terms and conditions"? One for a "mortgage" and one, quite different, for the "loan" for the same loan? which applies?


Just because your signatures are there doesn't mean that it's enforceable. Is it compliant in every respect?

Sappho
23rd August 2012, 19:55
I will send this to Niddy tonight. i think it is compliant. I have just scanned it in and discovered that we signed to say we had received their booklet and the lending conditions. When we signed we must have not read this properly and thought the lending conditions were the terms and conditions in the document we were signing and not another document we had not received... silly old us. I never bothered to SAR them as I begrudged giving them 10, am paying very dearly for being so tight.

Sappho
7th November 2012, 22:08
Oh joy!! Today we got loads of charges recredited to our secured loan courtesy of a year long complaint to the FOS. whay hay!!!!
Except our joy is shortlived since our dear lenders cannot distinguish between default fees they PUT ON and default fees they TAKE OFF. So they have now sent us a default notice and sent the usual threatening letter so we are back in litigation.

Has anyone ever got compensation for sheer bloody inconvenience when fighting these kind of battles? I estimate I spend around three hours a letter and a whole day if I have to provide loads of figures.

Sappho
9th November 2012, 20:39
Can anyone advise me about an alternative course of action? I cannot - just cannot - get this company to understand that if we are paying off arrears by an arrangement AND we have had hundreds refunded this month, the arrears must go DOWN, not up as they have done. I talked to them today and they just don't seem to understand. I asked them to explain why they have defaulted us and they said "it's a different department" Can I speak to them? No, they don't have a "customer face" and they won't talk to customers on the phone. I have written and complained ten weeks ago and they said they would not answer our letter. I can of course go - again - to the FOS and I will ultimately win, but this will take another YEAR. Has anyone been in a similar situation? Is there any hope going to court? If I can't get the company to understand, will a judge? I want someone to take these guy's CCL away as they cannot manage to do the simplest things but the OFT won't consider compaints.

porthmeor-glas
22nd January 2013, 17:12
We have experienced a prolonged nightmare with Acenden/Capstone/Preferred Mortgages.

In the event that Solicitors can be found with the necessary demonstrable expertise to bring a Group Action against the Company regarding unfair charges and treatment, and illegal conduct, we would be more than happy to liaise over this.

Please feel free to contact us through the site in the event this becomes an option.

Sappho
23rd January 2013, 13:00
For me this is not an option. It would have to be done pro bono, and who would take this on? I do not have money to throw at this.

The nightmare you describe, and so many other Acenden victims describe, is because of the unique blend of malice, opportunism and incompetence, blended so skillfully that sometimes one can't work out whether they are being very sharp or very stupid. We currently have a complaint running with them that they sent out two notices of default because they were forced by the FOS to recredit unfair charges. Now these were credits, obviously, money going into the account. However, Acenden called these "negative debits" and sent us default notices. In their final response to our complaint they said that they had to comply with the CCA 1974 - as indeed they do - and this requires them to send out written notices that there are defaults. In their covering letter they mentioned that they have added solicitors fees, which coincidentally are the same amount as the amount they had to recredit. Why? Well, we don't know yet, but presumably the "fake defaults" have triggered off litigation again. Trouble is, no-one believes us, they cannot accept that any company can behave like this. and look at their score with Standards and Poors, Moodys etc. Triple A because of their exemplary account keeping!!!!
In 2014 things will change with, one hopes, better regulation from the Financial Conduct Authority. If we haven't all been repossessed first.

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