No Apple we will see the law of the land being carried out the way it was written, and not the way you think it should be interpreted.

 

You really are not helping anyone with this nonsense

Dodge, do you have the decision- if you have then post it up please

Don't you want borrowers to explore ways to get past any adverse decision??

Apple

Why either of us ? Why not IIM ?

 

Why doesn't IIM? post it or even comment about it ?

 

Why not ask IIM? to post it ? Why not ask IIM? to confirm what the decision of the chamber was

'moderation'....maybe he has not got a decision......maybe the cases you refer to he knows nothing about them.....eeeerrrmm...could be any number of reasons.

Differenc is - you are here - you insinuate that there is a decision - you say that another site also has notice of the decision...

Why are you delaying my getting onto it...??

Do you have it 'yes' or 'no'??

Apple

Very well said Apple!!

Cheers WP.....but it just seemed obvious to me - that's the real 'context' as far as I understand it.

Apple

I think all of us know the decision Apple(even you)

If I did, would I be on here looking for it Dodge?

Surely, I would be dealing with it....not going around in circles on here.....so far, I only know of your insinuations.....

Apple

And you think that for this the court would sanction him by removing his right to recover his money, you are deluded.

Well so far th lower courts are giving lenders borrowers homes without consideration of the Deed or the validity of the charge.....we will soon see if the Lender has managed to do the same in the first tier tribunal.....post up the decision why don't you??

Time is ticking

Apple

I think all you've shown with this is that in world of the County Court the 'decision makers' can be a law unto themselves can they not. Law is ignored on a daily basis and on the basis that the poor souls before them may not have the money, ability or knowledge or representation to then appeal to a higher court and therefore bad decisions can be buried quite easily and they never see the light of day again.

82,000 + so far

There's definately a lot that is being buried - we will soon get Dodge or Ben to post up the decision; we'll soon see for sure if the aim is exactly the same in the first tier tribunal too......

Apple

So , just to put this into context, the borrower takes say £2m mortgage, but because the lender doesn't sign(and even though he has performed) the court allows the borrower to keep the money.

 

Does this sound right or even sane to you ?

I think it is more insane that a Lender would loan £2m and not sign the very specialty contract that will assist him secure it Dodge ; )

Apple

No I am not, however I should imagine that the appeal process would be the same as any other court ? Do you think an appeal on such an ill conceived argument would be allowed, it seems unlikely to me.

What 'ill conceived' argument are you speaking of?

Without the decision I cannot comment - do you have the decision Dodge? - can you assist progress and post it up - time is ticking you know.

Apple

Apple

 

If the site that Ben referred to was not discussing this case i think i would eat my hat Mein Herr.

 

Ben I saw that post as well that suggested the argument was unsuccessful.

 

Apple , I love your "we will fight them on the beaches" speech easy to say when it is not your home or money. As for the 10 cases , we know that 7 have been stayed and we assume that it is dependent on the outcome of this case . They could be in for a very long wait.

Oh good, you can get off on your holiday secure in the knowledge that there is a site somewhere (only you andBen know where it is of course) that has the decision...

Before you go - can you post the decision here -I need to get to work on it if it has gone against the Borower....time is ticking

Apple

The law regarding the formation of contract is going to take some changing apple

 

"The borrower not at fault" won't the court consider that the borrower had the money and didn't repay it ?

Dodge

'The Borrower not at fault' relates to - it is the Lender who has not signed the form of deed as a specialty contract....that is not down to the Borrower is it?

Apple

Yes and of course you have all the time in the world, however what about the people who lose their homes following your long term goal, to prove some obscure unproveable point.

We can't say it is 'un-provable' - if the Borrower has failed at the first hurdle, I need to see the decision to see why that may be the case.....and take it forward from there....

So long as those involved make it clear that they intend to argue any adverse decision - then the Chamber must re-look at the decision I believe....

Are you not aware of the Chamber Rules Dodge?

Apple

Easy to say, when you have nothing personally to lose and it is not your family home that is on the line

This is a 'live' case.....

It could go on for years...do you take issue that it could take years Ben??

If you have the decision - post it up - I would like to get cracking to see what needs to be done to take it to or defend the next stage.

Do you have it Ben??

If you do then, hurry up and post it up..... the clock is ticking...

Apple

There is no requirement for contracts to be in writing or have a signature. At common law, the only thing you need to form a contract are (1) an offer and (2) acceptance. There is no requirement for detailed T&Cs to be in place. Mortgages generally are not subject to the formalities required by the consumer credit act.

 

There can be no doubt that you agreed to borrow the money. You took the money and you used it to buy a house. You can't reasonably claim that you didn't intend to borrower the moeny or that you thought it was a gift. There is no real doubt that a contract was formed.

 

The only issue would be the exact terms of the debt. It is better from the lender's perspective if they have a signed document but its really not necessary. All the lender is required to show in a civil court is that, on a balance of probabilities, you were provided with the mortgage terms which it seeks to rely on.

 

The article you linked to is about a situation where a borrower claims he/she was made a promise by a mortgage employee which should form part of the contract. An example would be early repayment charges. There was also a case on the General Legal Issues forum recently where a CAGGer challenged a bank over its claims to allow temporary payment holidays. But I don't see how you can contest the whole thing.

There is nothing that is not 'challengable' SP

The specialty contract has to be signed by both parties (Lender and Borrower)....if the Borrower did not sign; then the Lender could argue his equitable remedy......thing is; borrower signed, lender didn't......there is no reliance on part performance

If the Borrower did not sign - but the Lender did - then, that's where the Lender can fairly look to an equitable remedy I would have thought.....

No Borrower is going to look to a lender to sue him or take his property or his money due to an equitable plea - when the Borrower was not at fault - surely not??

Apple

No just to be clear, what i am saying is that all the arguments that you have put forward on this thread are false and the court has proven this to be the case.

 

Let it go Apple whilst you have a shred of credibility left

Ah, that word again 'credibility'.

Dodge, If you are right and the case was un-successful against the Borrower - Please understand - It would be because of my 'credibility' for why I for one would keep going ; )

I would have no issue with the understanding that a negative decision at this stage - represents no more than a failure at the first hurdle.....

This could take yeeaaaarrrrrsssssss....

Apple

I don't believe that to be the case.

see Paragon & Pender - I think it was the Judge in one of those many appeals that confirmed it ; )

Apple

Yess but one more time, why would he, the deeds are compliant.

Compliant with 'common practice' or 'Statute'?

I know, you are likely to say 'both'.....it's been that way for years..blah blah... common practice is based on the common law which is based on statute.....blah, blah, blah...

If the LAW says it is not possible to 'mortgage' a registered estate.....then if there is a 'mortgage' - that MUST be a MISTAKE.

Applications made to the Chamber are to look to correct MISTAKES

You argue that it is permitted within the common law to 'mortgage' by charge by way of legal mortgage.....however.....fact is.....any 'mortgage' either by charge by way of legal mortgage or otherwise can only be applied to 'un-registered' land - under the 'first registration triggers'......

You insist a deed is 'unilateral' - any 'unilateral' instrument is challengable - it is only 'agreed notices' that will not be challenged Dodge.

Apple

Yesssssss but IF (one more time) the PC rule that the Deeds in these cases ARE void, then what remains? An equitable mortgage? Yes? or would you like me to repeat it again. I hear parrots are very good at crosswords too ;-)

If the Deed is declared void - then there is support to say - he can rely on the form of deed as a 'specialty contract' - so that if he has not signed that - then it makes sense that the Lender will look to an equitable remedy......it's arguable as to whether he should be allowed to get it because the ball was in his court to sign the deed...... garguillo says - estoppal won't help the Lender....

An equitable remedy as I understand it does not give a right to 'possession'...

Apple

lol

That's the spirit Dodge ; )

Apple

But Apple there is no defense, How could this happen in even one case ? Now it seems we know of at least three ? which showed there certainly is a defense. In fact that there was never really a case at all, one may speculate.

Not sure what you are inferring here Dodge.... Are you saying the application was un-successful??

Like I say, if it was; then it simply says - failed at the first hurdle - on to the next - we haven't even started talking European court yet Dodge.....it's only in the 'first-tier'

Apple

Err which core argument is that ?

the deeds in this case were signed by the lender and registered so there was a legal transfer. (ie not an equitable mortgage).

Dodge

Do you mean 'signed by the 'borrower'?

They have not been signed by the Lender at all

Apologies if i've missed your point here...

Apple

Morin Ben

 

Well that is interesting, I thought that there was no defense, "unfortunately this idea has proved unsuccessful,"Hmm

There is NO Defence Dodge.....if the Borrower has failed for any reason at the first hurdle - just means we have to keep going....that's all....European Court hasn't even been considered yet mate.....so, hold your horses ; )

Apple

Yes but as said we are talking about equitable mortgages, which is not the subject of the OPs case.

 

Regarding the section 2 condition for equitable mortgages, it seems to me that this is not an "agreement" as in for instance the case of a loan agreement, it is more a method of ensuring that all terms and conditions are present, on completion. The actual execution the mortgage or the main part of it if you like is done by the deposit of the title deed as it always has.

 

The regulation may make it difficult to enforce the charge if the requirement is not met on an equitable mortgage it is true as shown in Sahib.

Although it is difficult to understand the point you are making here Dodge - I will say - the Deed is a Specialty Contract.....Ben assisted the understanding that it incorporates all the terms etc etc... We trust Ben on that one - means we can frame s.2 into the 'arument' afterall - thanks to Ben ; )

It may mean that th Lender can make out that it was the Borrower that induced him into the beleif that he would get an equitable 'mortgage' - I can't see that given it was down to the Lender to sign the deed (specialty contract).......Borrowers cannot force a lender not to sign the form of deed as a 'specialty contract' can they?

Apple

Good Morning

 

It is nice to see Apple back after a few days away. All we need now is Is It Me? to comment and bring this to a close.

 

I would have thought, call this speculation if you will that if Is It Me?'s friend's application was in anyway successful, he would not be able to resist telling everyone.

 

Yet, we know that a decision has been issued and there has been nothing said by Is It Me? despite his insistence recently that everyone should make an application.

 

We should not lose sight that the decision was in regard to two applications and not just that of Is It Me?'s friend.

 

Today, I visited a site (fletch you will know which one, you recently posted there ) which has threads about mortgage deeds being unsigned. Unlike CAG it would appear that users can amend old posts as on the 25th a user amended their posts on this topic to now read "Unfortunately this avenue has proved unsuccessful, so post removed". As I understand it, this person was involved in promoting this idea and helping others on the basis on that idea.

 

I wonder, again call this speculation if you will, if this is a reflection on the decision issued of the Property Chamber.

Morning Ben ; )

I'm glad to be back.....

I'd love to see the site you are talking about?

It could be speakaing of the OP's case - who's to know - thought you said there were 10 applications.....

Regardless, whoever it may be referring to - it says there may be more work to be done - especially if it did, as you infer - go against a Borrower ; )

Apple

Anyway.

 

Lets get back to the decision from the chamber. I am sure we all agree that such a decision would present a major headache for the lenders and be a big deal for the industry. So why have we not heard anything.

 

Lets not forget, the lender cannot enforce[/b,] the deeds is void , the defense was dumbstruck, there is no defense, seems like there is after all

LOL

You forget, whatever the decision - whether to the favor of the Borrower or the Lender - either party will be faced with a further challenge......it could be the Borrower has to defend his position against a lender who Lost and vice versa......that's only natural..... far too much at stake to shut up shop at the first hurdle for either party....although I do recall you were keen to shut the thread down a while back.....

I can imagine the case will remain live until it gets to the European Court if need be....... this is not a repossession hearing Dodge ; )

Apple

Thank you Apple, much appreciated. I don't know why everyone else was getting so ruffled??

No idea, I'm sure ; )

Here's the bit from the extract to do with 'equity not taking s.2 lying down'...

"However, equity will not take such legislative interference lying down. While the

1989 Act has generated new formal requirements for the creation of a contract to

transfer an interest in land, the doctrine of proprietary estoppel continues to provide

that where an assurance has been made by one party to another and that other party

acts to their detriment in reliance on that assurance, then proprietary estoppel gives

the court the discretion to award that right to avoid detriment being suffered by the

claimant: as considered in Chapter 13. The case of Yaxley v Gotts101 has seen the

courts uphold a doctrine similar in effect to the old doctrine of part performance by

holding that, despite the enactment of s 2 of the 1989 Act, the court will award the

property rights sought in order to avoid detriment being suffered by the claimant. In

consequence, an equitable mortgage could be effected still if one party could demon-

strate that the other party to the putative mortgage had induced that party to suffer

some detriment in reliance on the creation of that mortgage. To return to a core

discussion of the nature of equity, the question must be asked whether this continued

determination of equity to enforce its core doctrines, a little like a stubborn weed

continuing to grow through the cracks in the pavement, is a valuable protection of

the rights of citizens or a dangerous challenge to the supremacy of Parliament in

enacting legislation which sets out formal requirements for the transfer of property rights

Here's that last bit again:

"To return to a core discussion of the nature of equity, the question must be asked whether this continueddetermination of equity to enforce its core doctrines, a little like a stubbornweed continuing to grow through the cracks in the pavement, is a valuable protection of the rights of citizens or a dangerous challenge to the supremacy of Parliament in enacting legislation which sets out formal requirements for the transfer of property rights"

If Parliament is intended to be 'supreme' - why would or should 'equity' over-ride Parliament - when it was the Lender who chose not to execute the deed?.....In 'garguillo' we know the Judge upheld the Law over 'equity' - speaking of the signature being fundamental - 'even if it was not commercially convenient.....I see no reason why any Judge would renege on this finding ...

Apple