Author Topic: SANTANDER BANK'S FRAUD EXPOSED IN N.I. COURT: POSSESSION CLAIM STRUCK OUT  (Read 13984 times)

M O'D

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"House repossession order is overturned by judge after Santander 'misstatement'"

A High Court judge has overturned a house repossession order after declaring the lender bank misrepresented the facts in the case.

In the words, of M o'B, and by way of introduction to th e possible significance of this judgement,

Quote
"The following is a transcript of a recent High Court judgment, explaining the reasons for the striking-out of a possession order over a property, which was obtained by Spanish bank Santander’s misrepresentation of whether a purported mortgage they were seeking to enforce had been securitised. To the very best of my knowledge, this is the very first time that a mortgagor has won a mortgage case against a bankster in the High Court since the founding of the Ministry of Justice.

Provided that the judgment is not set aside by either the Court of Appeal of the Supreme Court,this unprecedented case could provide a powerful authority to all those who are alleging misrepresentation against UK mortgage companies in Her Majesty’s Courts."


Quote


BY ALAN ERWIN – 09 OCTOBER 2013

Mr Justice Deeny said no explanation was given for a misstatement on behalf of Santander, expressing uncertainty over whether it was an honest error or someone "playing fast and loose with the truth".

The ruling came in an appeal mounted by Thomas Carlin and Maxine Hughes.

Mr Carlin and Ms Hughes were challenging a High Court Master's decision to grant possession of their home due to mortgage payment arrears.

They disputed Santander UK plc's right to enforce the mortgage because they suspected they may have transferred it away.

In a judgment given last month but only just published, Mr Justice Deeny said it was now admitted that part of an affidavit which formed part of Santander's case is "simply wrong".

According to the judge whoever supplied the information that the mortgage had not been assigned were "either being careless or untruthful and at this precise moment in time I do not know which is the case".

He said: "So the order of the court below was obtained improperly by a misrepresentation to the court, misrepresentation put by the advocate for the lender to the Master and put in a sworn affidavit."

Mr Carlin, who appeared as a personal litigant, argued for the order to be struck out on the basis of untruth.

Striking out the possession order, the judge said: "No explanation of the earlier misstatement is given in the new affidavit."

http://www.belfasttelegraph.co.uk/news/local-national/northern-ireland/house-repossession-order-is-overturned-by-judge-after-santander-misstatement-29644926.html
« Last Edit: October 14, 2013, 09:13:47 PM by M O'E »
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M O'D

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Quote
Neutral Citation No. [2013] NICh 14
Ref:
DEE8994



Ex tempore Judgment: approved by the Court for handing down
Delivered:
19/09/2013
(subject to editorial corrections)*




IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________

QUEEN’S BENCH DIVISION
________

BETWEEN
SANTANDER (UK) plc
Plaintiff/Respondent
and

THOMAS ANTHONY CARLIN & MAXINE KARON HUGHES
Defendants/Appellants
________


DEENY J



Application

[1] The court here is dealing with a situation which happily is unusual. Thomas Anthony Carlin and Maxine Karen Hughes have appealed from an Order for possession granted by the Master relating to their home because they are in arrears of payments on an interest only mortgage on the property. As a number of personal litigants do in recent times they challenged the right of Santander UK plc to enforce the mortgage because they suspected that they may have transferred it away.

[2] It is clear law, as has been recently reaffirmed by the Court of Appeal in England in Paragon Finance v Pender and Another [2005] 1 W. L. R. 3412 that a legal owner of a charge can part with the equitable interest in it without losing their right to enforce the charge. Therefore, this point in many cases is likely to prove a short-term gain for any borrower because it is simply a matter of the right person establishing that they are entitled to assert what had been agreed between the parties under the mortgage would happen in default of the payments agreed. Nevertheless, it is essential that the court is making an order in favour of the correct party who has the right to enforce a legal charge, as much as any other contract between parties.

[3] A most unhappy situation has developed here. Santander UK plc sought the Order for possession. They put in an affidavit in support; they chose to do it in a particular way, that is through their solicitor. Now, Mr Carlin in one of several documents which he submitted to the court has sought to rely on a judgment of Mr Justice Peart in the High Court in Dublin where he objected to hearsay evidence of debts. It seems clear that there is no equivalent of the Civil Evidence Order in the Republic of Ireland and explains the judge’s remarks. We do have a Civil Evidence Order. Parties are entitled to put in an affidavit and to rely on hearsay evidence with the court assessing its weight. In any event even before the Civil Evidence Order an affidavit with the deponent saying that they had been informed of something by a named person and that they believed it was true, in appropriate cases for the smooth administration of justice was received. This is often done, particularly in originating summonses cases. But it is important that it is done carefully and conscientiously. The system only works if both the lawyer is scrupulous in what the lawyer says and the client is honest in what they inform the lawyer.

[4] Here we have the situation where, it is now admitted that paragraph 15 of the affidavit of Miss Valerie Gibson, solicitor, for the lender Santander plc of 6 December 2012 is simply wrong. Mr Carlin would say it is a lie and at the moment I do not see how that can be clearly gain said; it is not Ms Gibson’s lie but when somebody told her that the mortgage had not been assigned they were either being careless or untruthful and at this precise moment in time I do not know which is the case. And what is more Mr Carlin asserts and Mr Gibson with his customary and proper candour does not dispute that the Master was told that there had been no assignment here and so that these issues did not arise. So the Order of the court below was obtained improperly by a misrepresentation to the court, misrepresentation put by the advocate for the lender to the Master and put in a sworn affidavit.

[5] That would be a serious enough state of affairs but at the review of this matter before me when listing this case for hearing today, 19 September, the plaintiff was given an opportunity and was directed on that occasion on 10 June to serve a rejoinder affidavit to Mr Carlin’s affidavit and that of Miss Hughes within two weeks from that day, that is by 24 June. They did not do so. They did not serve affidavits, as far as the court was concerned, until 16 September, only three days before the hearing. Mr Carlin says he got an unsworn, undated draft two days before that. That is utterly unsatisfactory. It shows a disregard for the orders of the court which would be disreputable in a litigant in person and is equally disreputable on the part of a large commercial enterprise which should know better. No satisfactory excuse is offered for that.

[6] Furthermore, the matter is worsened by the disregard by Santander of the decision of Mr Justice Horner in Swift Advances plc v James and Maureen McCourt [2012] NI Ch. 33. He on that occasion, on behalf of Swift did have in court an official of Swift giving oral evidence before him because this or a similar point had been raised there. Of course it failed ultimately because Mr White, the Risk Manager of the plaintiff, gave sworn testimony that he had made the checks and the plaintiff had not sold the loan of the McCourt’s to any third party and it had not legally nor, apparently in that case, equitably assigned the charge, which the judge accepted and so Swift succeeded.

[7] The judge, and as I have already previously said in this court, wisely in my view, commended the course that the solicitor acting for the financial institution should expressly warn the proposed deponent on behalf of the financial institution of the serious consequences he or she bears personally and the consequences for his or her employer if he or she swears an affidavit that is false in any respect. Next, their solicitor should confirm to the court that the deponent has been so advised before the affidavit is sworn. Thirdly, the deponent on behalf of the financial institution should then swear the affidavit dealing with the plaintiff’s title to seek an order for possession. It is only if some uncertainty is left then that one should go on to deal with applications for specific discovery. So it can be seen here that Santander have further disregarded the decisions of this court because they have not deigned to swear the affidavit themselves but have required Miss Gibson to do it. Now the matter that is set out therein may or may not be right but it seems to me as it contradicts the earlier information on affidavit as it was given to the Master that Mr Carlin is entitled to cross-examine this lady as to whether it is true and perhaps is entitled to further discovery.

[8] His initial application today was to adjourn the matter because he had not got the skeleton argument in time and he had just been presented with this change of front at a very late stage and the court was sympathetic to that application. I heard from Mr Gibson. I gave the opportunity to Mr Carlin as to whether he had any further application and of course he might have made several applications at that time but he has chosen, as he put it, to ask me to strike out the order, and as he put it, I think not unreasonably in the circumstances, on the basis of untruth. Now the court of course recognises that everybody makes errors. They should not make them on affidavits, but at this point I do not know whether this was an honest error, I do not know whether somebody was playing fast and loose with the truth. No explanation of the earlier misstatement is given in the new affidavit. What is certainly the case is that Santander have been in breach of the directions of the court, they have been in breach of the judgment of Swift v McCourt and they obtained an order by at least, as I said earlier, misrepresenting the facts to the Master.

[9] In all those circumstances I conclude therefore that the appeal should succeed and I reverse the order of the Learned Master, making it clear that this is no reflection on him, and strike out the order for possession.

http://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents/2013/%5B2013%5D%20NICh%2014/j_j_DEE8994Final.htm
« Last Edit: October 10, 2013, 08:03:51 PM by M O'E »
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Laurence James Howell

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Hi All,

The plot thickens. The court found that Santandar had miss-represented the fact to the Master, in that , Santandar had in fact sold the note on.

This being the case then they have no standing to apply for a possession order. If both titles, legal and equitable have been transferred to the Securitisation process then Santandar lose the right to pursue.

It must be the case that Sandandar has transferred both titles by implication from reading the judges order. They outright lied to the master, through the lawyer by saying that the note had not been sold. Did not mention still retaining legal title as the Carmen Butler information would disprove this anyway.

In any event it would seem that both titles have been transferred. The judge makes the point that the title can be split and the equitable title sold on, But in a true sale both titles need to be transferred notwithstanding the registration gap referred to by Carmen Butler. As she has said " I am the only one who has seen the sale documents " and she maintains that a true sale has occurred.
She was of course referring to Northern Rock and the SPV used called Granite. As a process to the SPV, the title is split and the legal title is not transferred as an " oversight " but remains on the books as something " to be done "

In the US both titles are transferred and it is the serviceing company the applies for the court order. No difference exept the registration gap identified by Carmen Butler
Bankster’s Possession Order Struck-Out for Misrepresentation
14/10/2013
Banksterbusters
The following is a transcript of a recent High Court judgment, explaining the reasons for the striking-out of a possession order over a property, which was obtained by Spanish bank Santander’s misrepresentation of whether a purported mortgage they were seeking to enforce had been securitised. To the very best of my knowledge, this is the very first time that a mortgagor has won a mortgage case against a bankster in the High Court since the founding of the Ministry of Justice.

Provided that the judgment is not set aside by either the Court of Appeal of the Supreme Court,this unprecedented case could provide a powerful authority to all those who are alleging misrepresentation against UK mortgage companies in Her Majesty’s Courts.

M O'D

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Any Mortgagor threatened by void court order for possession is ideally placed to make a claim at the High Court against the Bankster for committing FRAUD UPON THE COUNTY COURT on the basis that:

1.  On the balance of probability, the Bankster is no longer the holder of the void mortgage deed: it has been securitised.

2. The Deed of Mortgage is - on its face - a false document. (A) When signed (executed) the purported 'mortgagor' was neither the "Beneficial Owner" nor the "Borrower" as fraudulently declared in said deed. (B) The Mortgage Deed was incomplete at the moment of execution (no Terms and Conditions therein). (C) The solicitor committed forgery when he inserted the date subsequent to its execution.

3. As such, it is also a false receipt ~ no moneys of exchange were 'loaned'. No evidence of any loan ever being made, only an 'advance' which was an extension of 'credit' from the deposit of the deed as a valuable security.


« Last Edit: December 04, 2013, 01:15:05 PM by M O'E »
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Laurence James Howell

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Hi All

Having exhausted the complaints procedure at Mortgage Express, easily done as they will not answer the hard questions, the complaint has been passed to the FOS.

The initial report does not support the complaint which, considering the supporting evidence provided is not what I would expect.

It will be another 3-6 months before I get a decision and in the meantime I will send this latest court information and see if that will make a difference.

Peace through Love

spirit

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Now things are getting interesting. I mentioned Carmel butler originally sometime ago. However my own research has ended up "standing" ie concerning the standing in court by the bank to pursue certain loans and mortgages.

There is some smoke and mirrors going on. Because irrefutable facts have been presented in the recent Santander case, certain bodies have been cornered or check mated and they can no longer argue out of the situation without causing a massive fracture in the judiciary in favour of a corrupt banking system.

However, and here is the smoke and mirrors part,- all banks are doing the same thing and there will be an attempt to single out the Santander case as a one off and further massive investigation will fall by the wayside.

BUT the weakness of the bank ( in this arm wrestle between banking and justice) concerns the exact entity owning the debt - legal entities, persons, corporate personas, fictions, etc are at the very hear of the commercial maritime system and if there is a flaw here it here will Be and is an attempt to hide it, and when revealed(as in this case) there will be an attempt to portray it as isolated incident.

HOWEVER someone in USA is having quite a bit of success against the banks EVERY time now with this argument - I have been transcribing their reports - their name is raja Mohammed and they are a legal qualified forensic accounting and banking expert .