Author Topic: SECURITISATION OF MORTGAGES - who 'owns' your mortgage?  (Read 30599 times)

M O'D

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SECURITISATION OF MORTGAGES - CRIMINAL CHARGES
« Reply #15 on: June 20, 2013, 03:20:33 PM »
Episode 7 – Could SA Banks be Hit with Criminal Charges?

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by Scott Cundill on May 23, 2013 

Raymondt Dicks takes us through an extraordinary story of how Investec Bank admitted in Court that the special purpose vehicles used in securitisation are “subsidiaries” of the banks.

What does this mean? Oh my goodness. Listen to episode 7 here and get ready for a shock:

http://downloads.newera.org.za/May%20Hearing/ [right click and choose "save target as"]
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M O'D

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HALSBURY ON SECURITISATION OF MORTGAGES & OTHER OBSERVATIONS
« Reply #16 on: July 10, 2013, 09:31:32 PM »
586. Securitisation of mortgages.



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Securitisation is the sale of a package of mortgage debts to a corporate vehicle (the 'issuer') established for the purpose of issuing securities usually in bearer form such as bonds1. One or more mortgagees (the 'originator') may agree to sell debts and related security to the issuer. This effects an equitable assignment of the mortgages which is not perfected by notice to the mortgagors or by registration. The issuer is entitled to call for a legal transfer of legal title to the mortgages in certain circumstances such as the persistent default or insolvency of the originator. The issuer is given an irrevocable power of attorney to effect the transfer and for certain other purposes2. The originator retains the powers of the mortgagee, including the right to possession3 but agrees to act in accordance with the instructions of the issuer in relation to matters such as interest rates and enforcement. The undertaking and assets of the issuer, including the mortgages, are in turn charged in favour of a security trustee for the benefit of the holders of notes or bonds issued by the issuer4. The security trustee is given custody of the charge certificates or, in the case of unregistered land, mortgages and title deeds, and is given an irrevocable power of attorney to effect a legal transfer of the mortgages.


1 See companies; financial services and institutions.
2 See the Powers of Attorney Act 1971 s 4; and agency vol 1 (2008) para 175.
3 See Paragon Finance plc v Pender [2005] EWCA Civ 760, [2005] All ER (D) 307 (Jun).
4 The charge takes effect as an equitable sub-charge.



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although i must say that on first glance i struggle to see if a lender sells a mortgage on how they can retain title to sue, surely the sale would lead to the lender being fully repaid and therefore having no legitimate claim for funds from the debtor and having sustained no loss
That is essentially the gist of the argument. It remains to be seen whether it can hold legal water as it has never been properly tested. The debate surrounding this has been furious.

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The originator sold the mortgages - that much is clear - the SPV then also floats these as notes for investors to buy into and the ratings agencies did a massive job to rate these notes as good stuff to pile your funny money into. The debate rages as to wether there was a true sale i.e lock, stock and barrel. Most of the evidence, other than Suetonius' arguments, seem to suggest that it was a true sale.

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On the other hand of course there is the Pender case and the question of equitable assignment. Remembering that the SPV also creates/utiliises a trustee it seems that the investors required a certain amount of guarantee that their investment would be protected. This has been extensively debated and illuminated elsewhere.

It would appear that the securitisation process pays scant regard for the laws of the realm. There is absolute admission in the SPVs sale prospectus, offering circular, call it what they may, that they have no intention whatever of abiding by the stipulations of the Land Registry Act 2002. That of itself is a criminal offence.

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"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"

"Nor, in my judgement, can the fact that Paragon has failed to describe itself as suing in its capacity as trustee."
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http://www.consumeractiongroup.co.uk/forum/showthread.php?197424-Mortgage-Securitisation-Paragon-V-Pender-Title-to-Sue-Judgements-For-Debate-amp-Discussion/page3
« Last Edit: July 10, 2013, 09:38:37 PM by M O'E »
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M O'D

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Re: SECURITISATION OF MORTGAGES - who 'owns' your mortgage?
« Reply #17 on: July 10, 2013, 11:09:41 PM »
 
Re: Mortgage Securitisation - Paragon V Pender Title to Sue Judgements - For Debate & Discussion

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"The issue I would like to clarify is the separation of the security and the debt obligation. What happens if the final end-user investor in the securitised package which included my personal mortgage goes bankrupt or simply vanishes. How would I know if my lender were continuing to collect (as trustee) on a debt it had already sold and was no longer obliged to service? Due to the reckless investments made and the way these securities were packaged and sold (mixing good debts up with sub-prime) many investors have gone bankrupt. How would the Official Receiver treat a securitised debt obligation? Where does my obligation end? I would really appreciate the highly informed views of this forum on this aspect of the debate. I hold a Northern Rock mortgage issued just before the crash when they were riding the sub-prime securitisation wave and I believe very little due process was followed in the scandalous mis-selling of these products. I think this may be another twist to this thread."

Hope you don't mind, but I thought I'd try to add some clarity to assist your line of questioning...(you may need to read what I say more than once, because it took me a while to appreciate what I have found...and couldn't believe it either...given that lenders are rampantly re-possession consumers house without remorse)

This is my personal opinion only - when it comes to separation of the security and the debt obligation in relation to a disposition of an interest in land that relates to a mortgage,........... there is no separation within the Law that relates to dispositions of land for the legal interest (the security interest - normally referred to as the 'title to sue' 'cause of action' or right to possession) or the equitable interest (the debt obligation or CMI) for this to happen.

For this conclusion I began by considering the Sale of Goods Act - just to better understand the ambit of how a 'sale' occurs and what the underlying factors are that effect a 'sale'...

From there, I moved onto 'sales in relation to land' and researched 'trusts' - this threw up pieces of legislation that themselves directly relate and made sense (in my mind) to the finding that it is impossible for a lender to purport to 'sell' its interests in land that relates to a consumers mortgage yet retain a legal interest or a cause of action - one such piece of legislation was the Trustee Delegation Act 1999 - at section 10 - it's wording and my interpretation is that it clearly advises that if a sale agreement is accompanied by a power of attorney - together, these 'instruments' have the effect of divesting the lender of both its legal and equitable interest in the land that relate to the consumers mortgage as party to a securitisation financial collateral arrangement that creates a Mortgage Backed Security. ( I know its a mouthful - but I couldn't think of a simpler way of stating the point).....

Please note that I have introduced words here such as 'interests' instead of 'mortgage' - 'disposition' instead of 'sale' and 'interests in land that relate to a mortgage' instead of 'sale of the mortgage' or 'sale of the property' and also 'instruments' instead of 'Mortgage Sale Agreement' or 'Power of Attorney'....

Subtle differences, but I believe.....; more than significant in relation to the debate.

I do not find that the original lender should or could ever be found to be the 'trustee' in such an arrangement. You may already be aware that any prospectus for a securitisation agreement will insist (UKLA Listing Rules) that the 'Trustee' must be identified in the prospectus - if your Lender is identified within the prospectus - then, sure, your lender can refer to himself as the 'Trustee' - but this is most unlikely to be the case with most sub-prime lenders....

It is not a question as to 'what if the end-user investor goes bankrupt' that is of any concern to a consumer (IMO) - the question is....what are your rights as a consumer in the event you become aware that your lender has securitised your mortgage and what legislation is available to you to protect your interests in the land - your home?

In my opinion, your obligation ends when you can prove in a court of law that the Law of the land says your obligation ended at the time and date that the lender disposed of its interests in the land in relation to your mortgage with the effect of disposing to the SPV rights that became extinguished as soon as the SPV paid a valuable consideration and registered its legal interest at Companies House without serving notice under s.1 LPA 1925 upon you.

There are of course a number of other considerations to be taken into account - and it is not as simple as stated above - but hopefully you will read into what I have posted to help clarify a few of the concerns you raise..........

Again, IMO, an Official Receiver in relation to the Lender and the SPV will be interested in who has the proprietary interest in relation to the land - that is to say, which one of them can prove first in line registration of their interest in the land.

Having gained a legal interest in the consumers land, it stands to reason (IMO) that the SPV in the event of its insolvency would look to the consumers property for redress. In Law, the Lenders bankruptcy should not affect the consumer - but as we know - it does and is affecting them on a daily basis (but, this is the legal issue that has yet to be brought and founded before the courts).

Long before a consumer can consider challenging a lender, you need to source and identify the 'instruments' that effected the disposition of its interest in relation to your land and mortgage (sale) and then consider what the status of your mortgage account was in at the time and date that the disposition was effected, this being because - if you were in actual default at the time of the disposition, you are likely to have an outcome similar to that found in the horsham case...albeit on different grounds, but essentially a similar outcome....

I hope this helps rather than confuses?

"Apple"


post 91 http://www.consumeractiongroup.co.uk/forum/showthread.php?197424-Mortgage-Securitisation-Paragon-V-Pender-Title-to-Sue-Judgements-For-Debate-amp-Discussion&p=4060053&viewfull=1#post4060053
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M O'D

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Re: SECURITISATION OF MORTGAGES - who 'owns' your mortgage?
« Reply #18 on: July 10, 2013, 11:24:54 PM »
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Just another quick observation for consideration:

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Remember, and don't lose sight of the fact that the POA's in these securitisation cases always invariably state that the SPV can bring an action in the name of the Seller - (i have seen this in the Accord POA herein and in the case of other subprime lenders instruments)

Consumers would need to be able to distinguish the Originators Title rights (that will have been disposed of at the time it entered into the agreement with the SPV to dispossess itself of all legal rights party to the disposition) from the 'ownership powers' of the SPV derived under the terms of the POA in the claim for possession and show that it is the SPV bringing the claim in the name of the Original Lender....at a time when the consumer was not privy to any such an arrangement.... (IMO).

In the Accord instruments posted above, the date of disposition was the 06.06.11 - what this means is that since that date - Accord had dispossessed itself of any legal interests in the land (including a cause of action) in relation to the mortgages - this being based purely on the face of the instruments posted (just my brief opinion)

Apple
Following on from this post....

How do you understand what the 'Originators Title Rights' are?

You do this by looking at the mortgage deeds...

Official copies are available from HMLR and are permissible in evidence in a court of law - LRA 2002 s.67 (1)

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If the Deed is only signed by the Borrower - then the deed is void.

This is because the LPA 1925 s.52 - says, if the interest is not created by Deed, then essentially the transaction is void.

The LP(MP) Act 1989 section 2 helps with the definition here....

That is to say, that the deed needs to be signed by the Borrower and the Lender - it is not 'delivered' unless the Lender has signed it...and is not presumed 'delivered' unless it is so..

The requirement for the lenders signature is governed by the LPA 1925 s.74A (i have on other threads stated 'B' - but it is correctly stated here; i'll correct it on the other threads in due course )


So in this scenerio.... when you are considering the rights transferred from the Originating Lender to the SPV... it spells sense that if the underlying deed is void.... there is no way that the SPV can be said to have rights upon which it can rely to join the purported Lender in any action against the Borrowers home because the Lender did not derive any rights ab initio (since inception of the purported 'legal' charge).

Further, in this scenerio, where the 'disposition' between Accord and the SPV is said to have occurred on the 06.06.11, under the LP(MP)Act 1994, Accords 'cause of action' under the sale agreement was never at issue - because if the deed is void - then the sale agreement would not grant anything, for Accord had no interests in relation to the borrowers land that it had acquired.

If the Deeds are validly executed - then, don't assume that the Law does not work to help Borrowers protect their home from the Lenders or the SPV's intent to take possession of the property...... oh no... the Law is provided to do justice nothing more nothing less.... The LP (MP) Act 1994 s. 2 (3) (a) provides that the sale/disposition conveyed between Accord and the SPV would be of the whole of the interest that Accord had in the Borrowers land - both legal and equitiable....(registered land)..

(3)In the case of a disposition of an existing legal interest in land, the following presumptions apply, subject to the terms of the instrument, in ascertaining for the purposes of the covenants implied by this section what the person making the disposition purports to dispose of—

(a)where the title to the interest is registered, it shall be presumed that the disposition is of the whole of that interest;

(b)where the title to the interest is not registered, then—

(i)if it appears from the instrument that the interest is a leasehold interest, it shall be presumed that the disposition is of the property for the unexpired portion of the term of years created by the lease; and

(ii)in any other case, it shall be presumed that what is disposed of is the fee simple.

Where statute at LRA 2002 s.51 and 58 provide that the Lenders registered charge is 'conclusive' due to remaining on the register at HMLR (i.e after sale/disposition to SPV - original lender keeps name on register at HMLR) this is to be countered with the provision under the LPA 1925 s 1 (7)

This is because, if the LP(MP)Act 1994 s.2 (3) (a) says the 'whole' of the interest has been transferred.... then the Lenders 'interests' in the registered title (upon proof of course of the sale) are non existent - the effect of which is the LPA 1925 s.1 (7) provides that any enactment that confers a conclusive 'legal' interest (such as LRA 2002 ss 51 & 58) must be taken and read to confer only an equitable interest...

Equitable Chargees, have no right to possession...

That's what I call STATUTORY MAGIC...and what's more important... its clear intent is to avoid unlawful possessions : )

Hope this info helps

Applecart

http://www.consumeractiongroup.co.uk/forum/showthread.php?197424-Mortgage-Securitisation-Paragon-V-Pender-Title-to-Sue-Judgements-For-Debate-amp-Discussion&s=e03e1f802cd21e95ab0cff807c3b7fa9&p=4171092&viewfull=1#post4171092
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SECURITISATION OF MORTGAGES - GENE KEATING RADIO INTERVIEW (part 1)
« Reply #19 on: July 17, 2013, 10:53:54 AM »
GENE  KEATING  RADIO INTERVIEW (part 1)
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Submitted by johnwade on Sun, 03/06/2011 - 18:50
 
Radio Host:      Hello everyone it’s Thursday December 9, and the end of the year is closing in on us quickly tonight. We have a special guest.  We have Gene Keating on with us tonight and he will cover a lot of topics. He said he is going to cover tax law, commercial law, accounting law,   trust law, adverse claims and void judgments. He is going to touch on those and explain a little bit about those and why we're not winning in our cases,

 

Hi, Gene, How are you?

 

Gene:  I am fine.

 

Host:  Great, great to have you with us.  For those that don't know you, would you tell us a little about yourself, just a little intro, mostly everybody knows who you are but…..ha, ha.

 

Gene:  Well, I have been teaching for 50 years, I have been doing research for 50 years.  I have a degree in Commercial Banking Law and Commercial Law, and I understand the Uniform Commercial Code; I understand Trust Law; all of these subjects are related. You have to understand Tax Law, Trust Law, Commercial Law and Accounting. If you don’t, you can’t understand anything that is going on, and that is part of the problem, when people go into court they do not know what jurisdiction the court is operating under.

 

Host:  What did you discover about all of this, how are we doing it wrong?

 

Gene:  These courts have two jurisdictions, they have a public side, which operates in commercial and a private side which operates under the common law.  And your courts of contract, if you contract with them, they’ve got jurisdiction.

 

Host:  How do you not contract with them?

 

Gene:  Well you make a special appearance, like I did. I did a Letter of Rogatory, and every time I have done one, I have been successful with it.  You have got to read 3-501 and 3-502.

It tells you how to do a conditional acceptance, upon proof of claim.  You have to challenge their right, and most of these people are making presentments on behalf of somebody else, and they don’t’ ever tell you what their authority is to do this.  That’s what they are doing on these mortgage loans, they are making a presentment on behalf of somebody else.  They don’t have any authority to do that, but if you don’t challenge it, they get away with it.  You can kill all of these mortgages at the administrative level without ever getting to court.

 

Host:  What do you do if you are in a state that is not judicial, they never go to court anyway.  What do you do in that case?

 

Gene:  In Ohio, they will file a complaint against you.

 

Host:   I know but what about non-judicial?

 

Gene:   Well in non-judicial, they can’t do a non-judicial foreclosure because it is a confessed judgment     The Deed of Trust contains a confessed judgment.  That is where they get the power.  Go read the power of sale clause in your deed of trust.  Are you still there?

 

Host:  Yes, I am listening to you.

 

Gene:  When a loan goes into default, they have a right under power of sale to a confessed judgment.  In California, under 1131-1134 in the CA Civil code, you cannot do a confessed judgment on a mortgage loan, unless the borrower has consented to it.  And the means he has to file an oath and order and has to be certified by an attorney.  All these deeds of trust contain a confessed judgment.  That is number one.  Number two, you are not dealing in a mortgage loan, you are dealing with an investment contract and they are holding you liable on a contract to which you are not a party.  And that is the pooling and sourcing agreement, and under the Statute of Frauds which is Section 1624 of the CA Civil Code, and in the Commercial Code it is Section 2201.  The Statute of Frauds was designed to prevent the very thing that they are doing and the Statue of Frauds is evidentiary and if you don’t raise it, you waive it.  And I don’t know of one person who has ever raised a Statute of Fraud as a defense; it is evidentiary.  The landmark decision on that is the Sea rest case. Because when you go to closing, what they are doing is a loan modification, because they made you a party to a contract to which you are not a party to.  You are a third party contractee to the pooling and servicing agreement.  The proof of that is that’s where your mortgage payments are going.  Your mortgagee payments go to the investors as a cash flow claim. They are not going to the servicing company, the servicing company merely passes them on to the investor.  Why are they giving them to the investor.  Another thing that you need to study is that you are dealing insecurities, not negotiable instruments.  What you call a

promissory note is a security, as it has a maturity of more than nine months.  All these mortgages have 30 year and 20 year maturities. And if you read Title 15, Section 78 CA 10, any note that has a maturity of 9 months or less is excluded of a security, because it is not a security, it is a note.  Where have you seen a security that has a maturity of nine months or less?  You haven’t.

 

And they also, there is a disclaimer that is supposed to be in the credit application, Under Title 16, 16CFR 433.2, which says  that the seller takes it subject to all the defenses and claims that the buyer could assert against a transferee or buyer who buys it, or anyone who sells it.  But they take this out of all of these mortgage applications.  None of these mortgage applications have that disclaimer in them.  That means there is no holder in due course.  If you read the 3302 of the Uniform Commercial Code, the holder in due course takes it free and clear of all claims and defenses that the payor could assert against any payee or assignee or transferee.  Well they don’t take it free of that, they take it subject to your claims and defenses.

 

What are the claims and defenses that you have?  Well, number one, under UCC3305, you have a claim in recoupment, which is a counter claim, and is the same language that is in Rule 13 in the Federal Rules of Civil Procedure.  Rule 13 says there are two types of counter claims; there is a mandatory counter claim and a permissive counterclaim.  A mandatory counter claim is a claim that arises from the same transaction and occurrence as the plaintiff’s claim.  Nobody’s filing a counter claim; that is why they are running over you.  You cannot be a creditor unless you file a counter claim.  That is under UCC 33-05.  And your second claim or defense is UCC 33-06, which says you have a proprietary and possesionary and property interest in the note and its proceeds.  And you have the right to rescind the negotiation of the transaction.  Negotiation means the endorsement of the note.  They always endorse these notes “pay to the order of.”

Well, you have a right to rescind that negotiation, but nobody ever does it because they don’t read the Uniform Commercial Code.

 

I have been teaching for fifty years, and I have never found anyone in the ______  community that reads the Uniform Commercial Code.  They do not read all these applicable statutes. When you are dealing in securities, it is governed by Article 8, not Article 3, because what you call a note is a security and it is a non-negotiable instrument.  If you read the adjustable, and most of these sub prime adjustable mortgages have an adjustable rate rider that goes with the note.

The adjustable rate rider, modifies the condition of payment UCC  3-106 D, it says it can’t be a negotiable instrument if it is subject or governed by extraneous documents outside of the promissory note.  They make it subject to the adjustable rate rider and the Deed of Trust.

 

I have a dozen cases that say all mortgage notes are non-negotiable instruments.  Well, if they are non-negotiable instruments, they are not governed by Article 3, they are governed by General Contract Law, specifically restatement of the law, Second Series, under Contracts Section 164,

which has to do with misrepresentation, which means it is subject to rescission .But nobody ever rescinds anything.

 

If you read 226.23 of TILA, Truth in Lending Act, or Regulation Z, that’s 12 CFR, you have to go into the electronic version, if you go into the appendix the have a form in there in Appendix H, they have rescission  forms, and they are called H-8 and H-9 n the appendix of 226.23.  And if the lender does not give you the right to rescind, they also have to give you the form to do the rescission. That’s all in 226.23.  Now in there it says that it does not apply to residential mortgage loans, but you go down to Section H, that at foreclosure you have the right to rescind the loan transaction if two things occur,  there was no mortgage broker fee charged, and you weren’t given the right to rescind and/or the form, those three things.  They didn’t give you the form which is Appendix H-8 and H-9. So you can rescind the transaction when it goes into foreclosure.  They will tell you only have 72 hours, if they didn’t give you notice,  the statue of limitations does not toll, until they tell you that you have the right to rescind, so you can do it at foreclosure.  And another thing, you are not in a loan transaction, you are in a investment contract; 4-102 under Applicability, says if an item is includable in Article 3, it is governed by Article 8.  Article 8 governs Article 3, why does it?  Because you are dealing in securities.  All these notes are securities not notes or negotiable instruments, so Article 8 governs 3 and 4 and that is what says.   So what you have is a claim in recoupment or a claim under 3306 to the proceeds and a right to rescind the negotiation and you have a possesionary and property right in the proceeds of the investment contract.  But nobody ever files a claim.

 

And if you read 8-505 thru 8-508, it tells you how to file a claim and the claim is called an adverse claim and it is defined in 8-102 and defined 8-105, of Article 8.  Nobody uses Article 8.  All these mortgage transactions are governed by Article 8, not Article 3 or Article 2.  They are all governed by Article 8, and you have a counter claim.  You never filed a counter claim.  That is why when it goes into foreclosure, they file a 1099A, which says you abandoned your claim, your recoupment, which is a counterclaim and your possesionary right to the proceeds from the sale of the security under the investment contract, to which you were an undisclosed third party and nobody understands that.  You are an undisclosed third party to a contract under the Statute of Frauds.

And if they are going to hold you liable to a contract where you are an undisclosed third party and it has not been subscribed to by you or memorialized, then you have a right to the proceeds from the transaction.  And nobody files a counter claim going after the proceeds, and it tells you how to do that. That is one of the reasons you are losing in court.

 

Another reason you are losing in court, is because none of these courts, and I mean none, do you know what I mean by none?  None of these courts have subject matter jurisdictions over land.  Only a land court, and in Florida the only land courts are your county courts.  If you go into the judiciary of the Florida constitution, and look up Article 5 section 20, it tells you which courts have jurisdiction, and your county courts have jurisdiction over land, none of these courts.   So what you do is contract with people that don't have subject matter jurisdiction.  None of these attorneys, these Attorneys don't have been all have jurisdiction to represent anybody

and if you go read  the dead man's statutes which date back passed under probate law, you're dead man's statute were codified  under rule 61 of the Federal rules of evidence and what it says is ti goes to competency to testify.  They are incompetent to testify on behalf of a dead person. Now who is the dead person?  It’s all these corporations, they are all decedents. They're dead persons because are not real and what the attorney does is you let them come in there and they start testifying on behalf of all these banks. And if you don’t raise the objections, that is the first thing that I do.  I am before this court by special appearance, without waiving any rights, defenses, statutory or procedural.  I put this admonition at the top of my pleadings, that way you don’t wave jurisdiction.  Otherwise, you go in there and contracting with these people, you contract with them, and when they rule against you, even though they did not have subject matter jurisdiction, you gave them jurisdiction but not subject matter.  But you have got to raise it.  And nobody raises subject matter and in persona. In order for the court to have jurisdiction, the plaintiff has to be there and the defendant.  You have to have both parties, real parties in interest that have standing.  Under Article 3, Section 2, standing is a threshold issue, and the court is supposed to address that and they are not doing it.  Some of them do and some of them don’t.

So you have the responsibility to bring that up, because standing is a threshold issue.  None of these servicing companies that are foreclosing on all these loans, none of them have standing to come into court and foreclose on your loan.  The reason is, because they don’t own the loans.

Who owns the security?  The borrower does.

 

That is why in the Countrywide and the Kemp case, this woman who was an employee of Countrywide, came in court and testified that none of the notes are transferred.

That means that all of these real estate investment trusts, which they call REITS, don't have the notes, and  April Charney, if you read her admonitions on this, says that they never transfer the notes nor do they sell them, they keep the notes and the reason they keep them from is because they don’t’ own them,  they can’t transfer them. And if they did transfer them, they have to do that to get the exemption or otherwise they have to pay taxes.  If they don’t pay out 90% of their taxable income in interest and dividends to the investors then they have a tax liability and do not qualify under section 862 and 852 of title 26 as a real estate investment trust, so they're in possession of contraband so what they're doing is billing you for the tax that is owed, and everybody goes in and nobody raises this issue because no one understands it.  That's why every mortgage is a tax issue. It actually involves two things, it involves an investment contract and a tax and reason the tax comes into play is because they never transferred the security.  They kept these securities. So that means all these investors that bought these cash flow claims under the pooling and servicing agreement and got worthless paper.  That means there is a cloud on every title and none of these notes were ever securitized. They know that for every security that means every B5 prospectus and F-3 registration statement and 8 K current report is are all invalid that are filed with the Securities and Exchange Commission, because the notes, the securities were never transferred at the closing.  All these investors put up all the capital and I have a law review article written by David Levithin that goes into the ramifications of this.  That means that all these banks that allegedly financed all these loans will have to  all the money back to the investors as cash flow claims because never transferred, they bought something they  never got. They paid for all these notes or securities, and they were never transferred to them. So they don’t own any of them.

 

So the banks are going to have to give, and there is not enough money in all of the banks to pay these investors back. So what does that mean?  You are going to have a put-back. This professor who wrote this article went up and testified before Congress on the Subfinance Committee under Community Housing.  He testified before Congress what was going to happen if Congress doesn't do something.  Now what are they going to do? It remains to be seen but I am telling you what the ramifications of this are. China probably is going come in here and buy up all these loans.  Either that or they will bail out everybody, either that or they will confiscate all your money in the banks.  One of these two things are going to happen, just stand by and watch.

 

 

In response to the young lady that asked about the 1099 OYD, all these people that are going around filing 1099 OIDs, 1096s, 1040, 1040 Vs, they are not filing 8281s.  An 8281 identifies who the issuer of the OID is under title 10  Section 78c a(8).  That's a small c, a, parentheses, the number eight, go read it.  It identifies you as the issuer and because you didn’t identify yourself as the issuer, you don't have a claim.  That's why it says in publication 1212 on page 2 that the  8281 form must be filed when you file the OYD.    This is what happens when people don't read anything, they are listening to what other people are telling them and people are not reading these publications that's why the IRS publishes these publications as they tell you how to file for an OID, original issue, discount, and tells you what forms you have to file.  Also, if you read your deed of trust and this is in every deed of trust under payments, which in almost all of them is number 3, and go read it if you don’t believe me.  This is why mean by nobody reads anything.

 

People complain about all this lack of disclosure but they never read the deed of trust that tells you what they're going and tells you that if there's any money owed at maturity, you can pay it at maturity.  So let me ask you a question, how can the note be in default if you have the right by contract, the deed of trust is a contract, and you signed the deed of trust.  How can they foreclose on the note when you can make any delinquent payment at maturity on the note under the deed of trust?  So how can it be in default? Havae you ever heard that before:

 

Host:  Yeah…..no!

 

Gene: Read every word, every word, every sentence, every phrase is an unconscionable contract and has clogging provisions in it.  do you know what clogging is? Clogging provisions are provisions that extinguish your equity of redemption.  If they sell your security, how are you going to redeem if they sell it to somebody else and give you the note back? Don’t you always have the right to redeem a loan? That’s war proofed it’s not a loan, it’s an investment contract.

Does anybody have any questions?

 

Host:  Yeah, hold on one second.  Let me bring up the questions, Ohio?  Go ahead Ohio, did you have a question…Ohio??????  Ohio, are you there?????

 

Caller Jeff:  Angela, I have a question for Gene. There has been another gentleman on the internet recently talking about what he calls your ABC’s and his name happens to be Patrick Devine. Are you familiar with him, by chance?

 

Gene:  Yeah, he is one of my students.

 

Caller Jeff:   Oh, well, I think sure that he is probably dead on with what’s going on and evidently you must agree if you say he is your student.

 

Gene:  I have not seen what he is teaching lately, so….I don’t know what he is teaching.

 

Caller Jeff: Well it is going along with exactly what you're saying,is it possible that I can send you some information for you to review?

 

Gene:  Sure,

 

Caller Jeff:  Fantastic, if I could get your email?  If someone would type, Angela would you be kind enough to type an e-mail in for me in the chat so I can send Gene some information and I have another question.

 

Gene, you talk about a form, what was the form you were just talking about that must go in with the 1099s OID it was an 88 something?

 

Gene:  8281, there are 3 forms. All you have to do is file the 8281, but you should read the instruction booklet. There is an 8281,  8282 and 8283.  I am suggesting you read all three of them.

 

Caller Jeff: Ok, now, another question for you…..

 

Gene: Let me bring something to your attention, this is really powerful.  In 1951, they past a law,  under title 26 section 2038, and section 2514 is called the Power of Appointment Act of 1951.  The donor has total power, every one of these mortgage loan transactions is a donor/donee relationship,  which means it is a Class 5 gift and estate tax under the 60 0209 decoding manual.  And if you go to the IRS website and download it, it called the IRS Processing Manual of 2010. If you go there and read it, it tells you that all 1096s, all 1098s, all 1040s, all 1099s, all W-2s, are you guys getting this?  All W-2s, all W-4s are classified gift and estate taxes have nothing to do with an income tax and everybody is filing 1040 forms.  You don't report gift and estate taxes on a 1040 form.  Your report income on 1040 forms, which is number one. All Class 5 gift and estate taxes are done on a 706 form or 709 form.   The 706 form is the generation-skipping transfer tax, you should read the instruction booklet on a 706. I go into this stuff in my classes and we have classes every Tuesday night and this is some of the stuff that I cover.

 

You have under the 709 form, which is a gift tax form, see there are two types of taxes, generation-skipping transfer tax which the 706 is for, and a gift tax which is what the 709 is for. And if your read publication 950, you have a $3,500,000 unified tax credit..  That means if you know anything about accounting, corporations use that $3,500,000 as money.  Corporations use tax credit as money.  They actually would give corporate tax credits to banks and banks will loan money on the tax credits.  You have a $3,500,000 unified tax credit under publication 950 on all estate taxes.  You have a $1 million unified tax credit or exclusion on the gift side. And you bill that, if you read the 709 Form, the Bill the Exclusion You Have a $348,000 is built into the form., it is actually in the form. Now I know that none of you wage earners make than $340,000.  Now what is wrong with this picture?

 

Caller Jeff:  So, okay First off I’d like to say this, what Patrick talked about being very important, every time you send in your 1099A for acquisition or abandonment that you have to send in a form 56.

 

Gene:  Yeah, point of fiduciary.

 

Caller Jeff:    Is the form 56 and is form 8281,  are they somewhat maybe similar?

 

Gene:  No.

 

Caller Jeff:  Okay.

 

Gene:  See the 8281, identifies you as the issuer of the OID

 

Caller Jeff:  Okay

 

Gene:  That is why they are penalizing people on these OIDs.

 

Caller Jeff:  Okay, if you would here for me.  I go back to McFaddens’s speech on the floor of the house back in the 1930s, and he says, Mr. Speaker, if this bill becomes Law, a Scottish distiller will be able to draw up his bill and present it to the Federal Reserve Window and have his money before he ever produces the whiskey.  I didn’t write that but that is what is says. Then that means each and everyone of us is running a corporation, we on this send tend to call that the “strawman,” but it’s a business and we have the ability to draw up our bill and send it to the Federal Reserve Window and get our money every year before w ever start doing business, for our particular business that we might call EUGENE KEATING, OR ANGELA STARK, or whatever, am I wrong sir?

 

Gene: No, you are absolutely right and I can show you how to do that.

 

Caller Jeff:   So every single one of us, of us have the power individually, individually without getting involved in a big group, if  just learn to run our banks, we have the ability to take back and inherit what the Bible might call the Kingdom of God.  Would you argue with that?

 

Gene:    You are absolutely right.

 

Caller Jeff:  Okay,  So what the wizard told Dorothy in the Wizard of Oz, was all she had to do was click her heels together, that the remedy has been with you the whole time. Do you agree with that?                     

 

Gene:   Yes, it is.

 

Caller Jeff: I tell you what I would love to see, sir, I would love to see you and Patrick get together , it sounds like he issuing you information, and strengthen this thing so each and everyone of us can probably find our  remedy because it’s been withheld from us for years and years and because my people are destroyed from lack of knowledge. Do disagree with that?

 

Gene:  Nope.

 

Caller Jeff:  That’s fantastic!

 

Gene:  We have special drawing rights on the IMF, did you know that?

 

Caller Jeff:  Well that sounds tome like what I’m saying is that’s all we need to do, or I know you can go to the Small Business Administration today, my folks did it in their business and you can present a plan to them and they will fund the plan.  I just never realized they were doing is taking your social security number as the account number and they are going thru there and funding the thing because we have that right because as we are creditors to the corporation.

 

Gene:  That’s right, all these corporations are debtors in possession, under a Chapter 11 reorganization.

 

Caller Jeff:  And each and every one of us are the creditors to the United States. Am I correct sir?

 

Gene:  Yes.

 

Caller Jeff:  Okay, each and everyone of us have had our remedy and we’re sitting around bitching, moaning and complaining and crying about what Obama and all these people were doing and it does not mean dittley-squat to us.  Everyone of us has our remedy right this minute, and it is as easy as A, B, C.  1099As, Bs and Cs and if you know how to use them, you can run  your whole bank cause it says each of us are bankers under Title 31, so we all have our remedy, we just have to quit being stupid,, am I correct?

 

Gene:  Amen.

 

Caller Jeff:  Okay, I am going to get off the call and let someone else talk.  Thanks you for your time, and thank you Angela.

 
johnwade's blog © 2010 John Wade Moore.

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Re: SECURITISATION OF MORTGAGES - who 'owns' your mortgage?
« Reply #20 on: July 17, 2013, 11:30:14 AM »
Following on from the reference above to the Statute of Frauds and from a British perspective:


Quote
The importance of a valid written contract for matters concerning the transfer of an interest in land is long established in English Law.  The Statute of Frauds (1677) states the requirement that certain kinds of contracts be memorialized in a signed writing with sufficient content to evidence the contract. Given the huge significance of a mortgage, with all the socio-economic and legal implications it burdens the mortgagor with, it is entirely reasonable that all parties to its creation sign a written agreement.

As demonstrated in the foregoing, it was the intention behind the LPMPA 1989 that the requirements for a written contract be tightened up.  This principle applies not only to an agreement to sell land but also to any other contract in which land or an interest in it is disposed, such as the grant of a mortgage or an easement.

 "The provision in section 4 of The Statute of Frauds (1677) relating to contracts for the sale of land was repealed by Schedule 7 to the Law of Property Act 1925 (15 Geo 5 c 20), however the requirement that contracts for the sale of land be evidenced in writing was maintained by section 40 of that Act. Section 40 of the Law of Property Act 1925 was repealed by sections 2.8 and 4 of, and Schedule 2 to, the Law of Property (Miscellaneous Provisions) Act 1989 (c 34), however section 2 of that Act requires that contracts for the sale of land be signed and in writing." http://en.wikipedia.org/wiki/Statute_of_frauds

 By way of support, we turn to the UNITED BANK OF KUWAIT V SAHIB & OTHERS (1996) Times, 13 February 1996, which made clear that the mere deposit of deeds does not create a charge,

"It seemed clear that the deposit of title deeds took effect as a contract to mortgage and fell within section 2. His Lordship agreed with the judge below (at p 111) that the Law Commission’s recommendation that contracts relating to land should be incorporated in a signed document containing all the terms was clearly intended to promote certainty, and that the new legislation was likely to have the effect of avoiding disputes on oral evidence as to the obligation which the parties intended to secure."

"Therefore, by reason of section 2, the deposit of title deeds by way of security could not give a mortgage or charge."

"Lord Justice Phillips gave a concurring judgment and Lord Justice Leggatt agreed with both."

[Solicitors: Radcliffes & Co; Clyde & Co. Copyright © Times Newspapers Ltd 1996.]
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BANK OF ENGLAND LIST OF SPVs ~ last quarter 2012, first 2013
« Reply #21 on: July 26, 2013, 08:45:52 PM »
Here are the banksters who have been kindly listed by the Bank of England in a pdf file so all can see. Thanks guys,  :-*  

Enjoy but be prepared to be appalled too...  :-\

The usual suspects are there ~ Northern Crock, the Badfume and Burgle, Blank of Ireland, Bandits of Scotland, Shamifax, Investec, Clydesdale Bank... at over 1400 spvs it goes on and on...


SOURCE: LAST QUARTER OF 2012 http://www.bankofengland.co.uk/statistics/Documents/reporters/defs/spv2012Q4.XLSX

FIRST QUARTER OF 2013
http://www.bankofengland.co.uk/statistics/Documents/reporters/defs/spv2013Q1.xlsx
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THE SECURITISATION OF HBOS MORTGAGES - FULL LIST
« Reply #22 on: August 12, 2013, 10:28:20 PM »
TAKEN FROM THE LLOYDS ACTION GROUP SITE, which is a representative action, here is a list of links which demonstrates the documentation of the securitisation of HBOS's loans, including mortgages ...


Quote
Lloyds action Now general video.wmv
Lloyds action Now what really happened.wmv
Lloyds Bank HBOS sank Lloyds presented by Lloyds Action Now.wmv
Lloyds Enquiry demanded v5.wmv
Lloyds love of money.mvp
love of money 2.avi
09 05 22 hbos prospectus.pdf
09 05 22 HBos Scheme-Document.pdf
20090520_LBG_Prospectus.pdf
FINAL_Prospectus_publication_announcement.pdf
LloydsTSBCircularFinal.pdf
SupplementaryProspectusEquityDec08.pdf
2008Dec12_HBOS_GM_Poll_Results.pdf
2008Dec18_LTSB_Announces_Supplementary_Prospectus.pdf
2008Nov19_LTSB_GM_Poll_Results.pdf
2008Nov3_LTSB_HBOS_Acquisition_&_Publishing_Circular.pdf
2008Oct13d_LTSB_HBOS_Acquisition_&_Raising_New_Capital.pdf
2008Sept18d_LTSB_Acquires_HBOS.pdf
2008_LTSB_Interim_Results.pdf
2009Jan12_Results_of_Placing_and_Open_Offer.pdf
6302I_1-2008-11-20.pdf
blREX+0L0068-84785_2-03622878 Return 1.pdf
blREX+GJ0068-77733_2-03622878 accounts.tif
blREX+GJ0068-77744_2-03622878 07 return.pdf
c99540CCL.pdf
09 05 26 Press clippings.doc
2000_LTSB_Group_R&A.pdf
2001_LTSB_Group_R&A.pdf
2002_LTSB_Group_R&A.pdf
2003_LTSB_Group_R&A.pdf
2004_LTSB_Group_R&A_2004.pdf
2005_LTSB_Group_R&A.pdf
2006_LTSB_Group_R&A.pdf
2007_LTSB_Group_R&A.pdf
2008Dec12_HBOS_GM_Poll_Results.pdf
2008Dec18_LTSB_Announces_Supplementary_Prospectus.pdf
2008Nov3_LTSB_HBOS_Acquisition_&_Publishing_Circular.pdf
2008Oct13d_LTSB_HBOS_Acquisition_&_Raising_New_Capital.pdf
2008Sept18d_LTSB_Acquires_HBOS.pdf
2009Jan12_Results_of_Placing_and_Open_Offer.pdf
6302I_1-2008-11-20.pdf
c99540CCL.pdf
FINAL_Prospectus_publication_announcement.pdf
HBoS ADR deposit agreement 2006 with New York Bank NYMB.pdf
LloydsTSBCircularFinal.pdf
Prefs_CLEAN_SP_dec_2008.pdf
SupplementaryProspectusEquityDec08.pdf
SEC 1.pdf
SEC 2.pdf
SEC 3.pdf
SEC 4.pdf
SEC 5.pdf
SEC 6.pdf
SEC 7.pdf
SEC 8.pdf

Go to this page for the actual links: https://lloydsactionnow.com/Forms/Document.aspx?selectedItem=Documents
« Last Edit: August 14, 2013, 11:48:41 PM by M O'E »
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SECURITISATION OF MORTGAGES: MAN WINS IN S.A
« Reply #23 on: July 24, 2014, 07:32:53 AM »
Johannesburg businessman defends himself in court against the bank - and wins

Quote

Posted 16 May 2014 Written by Ciaran Ryan

Johannesburg businessman Damon Greville defended himself in the South Gauteng High Court this week against Sasfin Bank, which shut down his 67 year-old business in 2012 and is now attempting to repossess his house. The judge found "substantive evidence" that the bank's legal standing was in question after Greville presented evidence of securitisation and "contradictory" accounting by the bank.

Johannesburg businessman Damon Greville, whose 67 year old printing business was shut down by Sasfin Bank in 2012, was this week gifted a victory in the South Gauteng High Court when his case was referred to trial.
 
The case is particularly interesting from at least one angle: Sasfin Bank pioneered securitisation in South Africa, and Greville claims that his loan has been securitised, thereby removing the bank’s legal standing to bring any action against him.
 
In addition to the securitisation argument, Greville says his debt to the bank has already been discharged. After accounting for payments already made from the sale of his company assets at auction, he says the bank now owes him close to R600,000.
 
The judgment handed down by the court could be a major victory for the “securitisation defence” as it has come to be known. Securitisation is the banks' practice of bundling loans together and on-selling them to investors, though the banks continue to act as collection agents for the new owners, which is expressly forbidden in terms of Section 78 of the Banks Act.
 
Once securitisation has occurred, the banks – in theory – lose all legal title to these loans and cannot proceed against borrowers. This has been validated by case law overseas, but the courts in South Africa have tended to give the banks a free pass on this shadowy practice. This latest judgment is therefore a major victory for those arguing the securitisation defence.
 
Greville represented himself in court, presenting what the judge called “substantive evidence” casting doubt on Sasfin Bank’s legal standing in the matter. Greville provided evidence that his loan with the bank had been securitised, and was now owned by an entity called SA Securitisation Programme (HF) Ltd.
 
The judge also found discrepancies in Sasfin’s accounting. Greville claims that rather than he owing the bank money, the bank owes him. By his own calculations, the bank now owes him close to R600,000, but is trying to foreclose on his house claiming an outstanding debt of R333,000.
 
“I feel vindicated that the court found merit in my arguments that the bank had destroyed a viable business employing 24 people, when I provided evidence in court that Sasfin had securitised my loan, which means they don’t have legal standing in the matter. Now the matter must go to trial, which is a victory for me, as it means we can call bank officials to the witness stand and interrogate them.”
 
Greville adds that Sasfin sold his business’s assets for roughly 20% of their worth, and then tried to foreclose on his house. This was the point when he started to investigate the law and study up on securitisation.
 
In papers placed before the judge, Greville claimed not only that the bank’s accounting was bogus, but asked for R20 million for restitution and damages for the destruction wrought by the bank’s actions.
 
“What is heartbreaking is that the business has been around for 67 years, longer than Sasfin Bank. It was a viable and solvent business,” he says.
 
The Judge found discrepancies in the Certificate of Balance presented by the bank’s lawyers before the court. The bank, having previously liquidated Greville’s business and equipment, had applied to the court to execute on his house.
 
This judgment reads: “The Applicant (Sasfin) also decided to re-cast its case in its Replying Affidavit, thereby furnishing a new Certificate of Balance, which did not even reflect the name of the Applicant. In doing so, the Applicant went further to amend its Notice of Motion in order to cover the inaccurate calculations of the amount allegedly owed by the Respondents (Greville and Advance Printing). I must point out that although the Applicant in the new case that it makes out with Amended Notice of Motion, seeks to rely on the new Certificate of Balance, the order sought in the Amended Notice of Motion in relation to the date from which interest is to be paid, contradicts what is provided in the said Certificate of Balance.”
 
This amounts to a searing indictment of the case the bank presented to the court.
 
The battle is not yet over for Greville, who is asking the court to award him R20 million in damages for what he claims were reckless and unlawful actions taken by the bank that resulted in the closure of his business. The case should provide legal fodder for thousands of other South Africans under the threat of the banks’ knives.
 
The facts of the case are this: in 2008 Greville asked Sasfin to finance the purchase of a building to accommodate his expanding business, and the bank agreed. According to Greville’s papers before the court, Sasfin decided it would rather take its security on the plant and machinery of his business, Advance Printing, in preference to registering a bond over the factory property. It then seems the bank changed its mind and took out bonds on both the plant and machinery, and the factory building.
 
The finance agreement for the purchase of the building had suddenly turned into a lease for equipment, which was previously owned unencumbered by Advance Printing. This, says Greville, makes the loan agreement defective.
 
By 2011 the credit crunch was reaching its peak, and Nedbank withdrew Advance Printing’s overdraft facility. The business fell three months into arrears with its Sasfin debt. A meeting with Sasfin Bank seemed in order to resolve the matter. It seemed the only way out was to sell the factory building and plant so the bank could recover its money. So far, so good.
 
At this meeting Greville asked whether his loan had been securitised and, after a pregnant pause and much humming and hawing, he left none the wiser. He says he was then put under pressure to sign an irrevocable power of attorney authorising the bank to sell the property at auction “at a reasonable market related price,” and a reserve price of R1,75 million was agreed in writing and emailed through to the bank. In February 2012 Greville says he received an offer for R1,9 million for the building, which he rejected as too low.
 
Just a couple of months earlier a similar building directly across the road had been sold for R2.5 million.
 
On 6 October 2012 Greville was advised by Alon Berman of Sasfin Bank that the property would be sold for R1.6 million. Greville immediately protested, and fired off a letter to the bank revoking his power of attorney. The bank ignored this and went ahead with the sale anyway.
 
The factory equipment was also put up for auction. One item, a Fuji 65IIP printing machine was sold for R35,000 when Greville had a buyer lined up prepared to pay R120,000.
 
After liquidating his business and selling of his assets, the bank still claimed an amount of R348,000 from Greville and approached the court for an execution order on his house, “when in all likelihood they were aware that they (Sasfin) were in fact indebted to respondents in the amount of R383,625. Included in the applicant’s Notice of Motion they inadvertently inserted a Certificate of Balance in the name of the South African Securitisation Programme (HF) Ltd., giving prima facie and unrefuted evidence that the loan agreement had indeed been securitised,” according to papers before the judge this week.
 
The bank later tried to have this piece of evidence withdrawn. This, says Greville, is clear evidence that Sasfin no longer has legal title to his loan, because it has been on-sold to SA Securitisation Programme (HF) Ltd.
 
“On being challenged in the respondents’ Responding Affidavit, the applicant changed their claim to R333,131 and sought to withdraw and replace their incriminating Certificate of Balance.”
 
Greville says in his papers that as it is “impossible for the applicant to restore the respondents to their positions prior to the applicants fraudulent action, i.e. to reconstitute Advance Printing Company and put it back in business, and to re-employ the staff who lost their jobs, and to make up lost income.” He is seeking restitution and costs of R20 million, plus further damages.

Update 12 June 2014:

Sasfin has posted a response on its web site without specifically referencing this article. The bank says it never liquidated Greville's company. That's correct, so the article has been amended to say Sasfin "shut down" rather than "liquidated" his business. The bank sold the the company's assets to recover its loan, but the effect was the same - the company was closed and 24 people lost their jobs. Sasfin also says it has not securitised Greville's loan. That surely is one of the major disputes of fact in this matter given the evidence Greville presented before the court that contradicts Sasfin's claims. Finally, Sasfin says the South Gauteng High Court did not give a ruling in the matter, merely referred it to trial. I would say this is a major victory for Greville given the fact that he stood to lose his house a few weeks ago. And, given the wording of the judgment, and the judge's questioning of the bank's legal standing, I would say Sasfin has some 'splaining to do. Looks like 1-0 to Greville at this point.

http://news.acts.co.za/blog/2014/05/johannesburg-businessman-defends-himself-in-court-against-the-bank-and-wins

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