Mortgage Express appoint LPA Recievers Walker Singleton to scare tenants off!

[Property999]

Hi all.

 

Has anyone actually signed the new Terms and Conditions being imposed by Mortgage Express.

 

If so, can you please tell me what happened after you signed. Did they leave you alone, or did it just make things much worse because they had more power?

 

Thanks in advance to any replies.

[patrickq1]

there are threads on here concerning securitisation ,how did things go keates , i would be in two minds about a signature going onto a new contract , if they wish you to sign the new contract first ask why and what is the difference , i am sure the difference will be a legal definition of you possibly allowing them to take your properties , you need the new contract sitting alongside the old contract , you may find that they have allowed possible securitisation of the debt to others , where as the old contract mention nothing , the route for securitisation is worth a legal argument

patrickq1

hello chilli an everyone else

[patrickq1]

http://www.lexology.com/library/detail.aspx?g=0d33aed5-8bce-42e1-8776-4bf49d14d1db

[patrickq1]

How the Mortgage Arrears Protocol affects mortgage proceedings

 

 

Monday 19 January 2009 by District Judge Peter Jolly

 

With mortgage repossessions increasing, the government is stepping in with advice to mortgage lenders. As sources of mortgage finance dry up, families can find themselves facing higher mortgage costs, as well as other budgetary pressures.

Their predicament has been exacerbated by the tough attitude of some mortgage lenders when householders ask for time to pay their arrears and offer a payment plan. In such situations, what should be the approach of the courts?

Section 36 of the Administration of Justice Act 1970 gives power to adjourn, stay, suspend, or postpone the date for possession in any instalment mortgage of a dwelling house (see Royal Bank of Scotland plc v Miller [2001] EWCA Civ 344, [2002] QB 255) if default can be made good within a reasonable period of time. A time-order regime operates for regulated agreements under the Consumer Credit Act 1974.

A reasonable period

In Cheltenham and Gloucester BS v Norgan [1996] 1 All ER 449, the Court of Appeal held that it was reasonable under section 36 to take account of the whole of the remainder of the original term of the mortgage over which to make good the borrower’s default.

After identifying the level of arrears, factors to consider include the amount the mortgagor could reasonably afford to pay, now and in the future, and the duration of any temporary financial crisis and reasons for the accumulation of arrears.

The court should also take account of the nature of the security, the length of the remaining term, the type of mortgage and relevant contractual provisions, and over what period it is reasonable to expect the mortgagee to recoup arrears of interest. After all, financial institutions make their profits out of money being out on loan. In every case, the balance between these factors differs. With little equity in the property, a shorter repayment period may be appropriate. Present financial constraints may leave little alternative to arrears payments being structured over 20 years, even if that gives no margin for future default.

Many mortgagors are blighted by their poor track record. Past non-payment history requires explanation. An imminent improvement to family finances might enable the court to make a stepped order, increasing the instalments off arrears at fixed future dates, or bring the case back for review.

Evidence

The Court of Appeal in Cheltenham and Gloucester BS v Grant (1994) 26 HLR 703 refused to lay down rigid rules for judges dealing with cases in busy housing lists. Part 32-compliant evidence is unnecessary. A borrower present at the hearing could be put on oath if required. But information about future income and expenses may be difficult to rebut.

Suppose there is equity and a planned sale will discharge the arrears. ‘Time to sell’ is often a last desperate plea of borrowers. And who should sell, lender or borrower, has been the subject of various cases. Target Home Loans v Clothier [1994] 1 All ER 439, CA suggested that if the prospects of an early sale for both parties are best served by deferring possession, then that is a solid reason for giving a short postponement (three months in that case). Although in National and Provincial BS v Lloyd [1996] 1 All ER 630, CA clear evidence of completion of the sale ‘in six or nine months, or even a year’, would be a reasonable period, this was rejected as a general proposition in Bristol and West BS v Ellis (1997) 29 HLR 282, CA. However, in current market conditions it is more logical for a longer period of time being allowed. A combination of temporary payments of current instalments and something off the arrears (achieved by the deferral of less pressing creditors), coupled with a less formulated plan to sell, offers the potential for a suspended order with review.

Citing cases

Bullish mortgage lenders cite cases such as Mortgage Service Funding plc v Steele (1996) 72 P&CR D40 as supporting the proposition that without firm evidence of completion of a particular sale, the lender should not be kept out of possession. The Practice Note (Citation of Authorities), [2001] 2 All ER 510, provides that applications for leave to appeal (such as in Steele) should not be cited ‘unless they establish a new principle or extend the law’, and the professional duty of advocates is to bring to the attention of the court all cases potentially relevant, and not merely those that are convenient or favourable. Nor should unrepresented borrowers be ‘bounced’ with inadequate extracts or case summaries. This practice invites an adjournment to a future date with a longer time estimate for a properly reasoned decision, thereby gaining the borrower what he seeks most – time.

A new protocol

The forceful approach of some lenders belies their membership of the Council of Mortgage Lenders, whose advice remains that possession should be a last resort.

This official CML line was extended in the Mortgage Arrears Protocol (see www.civiljusticecouncil.gov.uk), which was approved and is effective from 19 November 2008. Even prior thereto, and for existing cases, it cannot be ignored. Paragraph 4 of the Practice Direction Protocols provides that in non-approved protocol cases, the court will expect parties, in accordance with the overriding objective, to act reasonably in exchanging relevant information and generally in trying to avoid starting proceedings. A published draft protocol helps identify what is reasonable behaviour.

The protocol addresses pre-action conduct. This includes taking reasonable steps to discuss with the borrower the cause of the arrears; considering the borrower’s financial situation, including available benefits; and considering extending the term of the mortgage and a reasonable change to payment dates (so they fall after the monthly salary has come in). All these matters apply equally after issue. The protocol also provides that where borrowers can demonstrate they have taken all reasonable steps to market the property in accordance with professional advice as to price, proceedings should not be started if borrowers agree to keep lenders advised as to the sale progress. The protocol requires lenders to postpone court proceedings, so long as borrowers maintain current instalments and pay a reasonable amount regularly towards the arrears.

Advocates with uncompromising instructions from mortgage lender clients may be invited to consider their position with their client in the light of the CML advice and protocol, with the attendant adjournment. In cases of clear unreasonableness, a lender may not be allowed to add costs to the security (Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) [1992] 4 All ER 588, CA).

District Judge Peter Jolly sits at Portsmouth Combined Court

[Property999]

Hi,

 

I am just trying to find out how many people had their houses put with receivers, then auctioned through the receivers.

 

I'm trying to collate some facts about the dealings people have had with MX.

 

Thanks

[Bah Humbug!]

Hi 999. It is not just MX who are stealing our BTL property in broad day light - hiding behind the antiquated LPA 1925.

Chelsea Building Society appointed Allsop Receivers for just 2 months arrears, yes two months arrears.

I offered the £1,700 in full payment, this represented two months arrears and next month ahead,payments would of been completely up to date.

The caring, ethical Chelsea BS refused to accept my payment and call off the Receivers,Why ?

Receivers Allsop told tenant DO NOT PAY LANLORD but Receivers did not bother to collect rent for 15 Months, yes 15 months.

The debt has now multiplied 10 fold, Why ?

Together these so called INDEPENDENT companies have deliberately pushed me into this bad financial position.

They are selling my property at a fraction of the value, which will leave me with a huge deficit. Why ?

I asked Chelsea who in a bouyant rental market would sell in a depressed market ? Chelsea state they are happy with Allsop Receivers management, Why ?

What's this all about ? It is unreasonable and totally avoidable.

The stress is destroying my family life,for that reason alone I want to free myself from being a mortgage prisoner but can't.

Chelsea are aware I have recently survived a life threatening condition. I blame both Chelsea and Allsop in directly contributed to the cause of this.

I cannot take the stress any more, my health is deteriorating once again. I fear this stress is going to kill me,when it does remember you read it here, know that Chelsea and Allsop have my death on their hands.

If there is anyone who can offrer any advice please do so now.

[keates]

OK. I think it would be useful to have a thread that does not refer to any particular bank/building society or lpa receiver. I realise that the majority of 'victims' seem to be MX customers but I'm not one of them and the use of lpa receivers is widespread. However, the basic problems are common to us all and we need to exchange experiences and present a united front if we are to make a difference. As the court could take a time to actually issue the judgement, although I shall chase them for it, would it be possible to get the thread up and running? I think the sooner the better and if we can start 'naming' the banks/building societies/lpa receivers involved, so much the better as that might bring more people on board. A lot of people just 'rolled over' because they didn't know how to tackle the problem and we might be able to bring them back.

[citizenB]

Yep, I can do that for you right now.

 

What do you want as the title of the new thread ?

[citizenB]

This is the link for the new thread for those wishing to join the discussion / share their stories.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?384126-Lpa-receivers-power-of-sale

Edited March 26, 2013 by caro
Updating link

[keates]

I am concerned that a new link will get lost as there are so many different threads for lpa receivers. I wonder if it would be best to have anything to do with lpa receivers in one thread? There has been a lot of useful information on the forum over the years but anyone new coming to it would find it difficult to see the wood for the trees.

[citizenB]

I am concerned that a new link will get lost as there are so many different threads for lpa receivers. I wonder if it would be best to have anything to do with lpa receivers in one thread? There has been a lot of useful information on the forum over the years but anyone new coming to it would find it difficult to see the wood for the trees.

 

Sorry, you have lost me now. Do you want me to return those posts to this thread ?

[caro]

I am concerned that a new link will get lost as there are so many different threads for lpa receivers. I wonder if it would be best to have anything to do with lpa receivers in one thread? There has been a lot of useful information on the forum over the years but anyone new coming to it would find it difficult to see the wood for the trees.

 

Individual threads help people to follow what someone's journey from start to finish, so they can pick from individual threads what does and doesn't work. This thread is currently 84 pages long, and frankly I think it more likely that good info will be lost in here, rather than an individual thread for each person. Few are likely to read 84 pages or more from start to finish, sifting out what will help them.

[Junidb]

Keates,

 

Hello,

 

We are going through almost the exact same problem and trying to see how or what works to dealing with the banks and thier LPA receivers. You said you was in court on wednesday, which court was this

[keates]

County Court, what is your situation? Which lender/receiver are you with?

[Bah Humbug!]

Hi Junid we spoke two months ago, how are things with your problem ?

Keates,

 

Hello,

 

We are going through almost the exact same problem and trying to see how or what works to dealing with the banks and thier LPA receivers. You said you was in court on wednesday, which court was this

[applecart]

Just a Thought.....

 

Why have non of the landlords who have spotted that the Deeds are unenforceable not applied to HMLR for a Unilateral Notice to be put on the Register?

 

It is absolutely true that if the interest in relation to the land has not been created by deed, then there is no interest in your Buy To Let Properties that a Lender can or should be relying on to instruct LPA's in the first place....

 

The Unilateral Notice is applied for directly to HMLR with a fee of £40 for upto 3 properties then £20 for each property thereafter...

 

Before you take this step though make sure you get a copy of the 'official' deed/s that relate to your property/ies - OC1 form from HMLR - this copy is reliable (LRA 2002 s.67)

 

The Lender is supposed to sign the Deed - by virtue of LPA 1925 s 74A (1) (a) (b) - if he has not - then it is void.

 

Back in the day, the Lender could rely on 'part performance' - under the LPA 1925 s.40 - (that's to say, you signed it, so it was arguably a binding contract) this state of affairs was abolished when the 1989 Act came into force - which is exactly what a cagger in a previous post has allured to on this thread....The 1989 Act was introduced to provide clarity and certainty into Mortgage Agreements......

 

Nine Times out of Ten, you can bet your bottom dollar - the BTL's are definitely party to securitisations.....and they are clawing them back in droves...get to know your rights...fight back ....Slap a Unilateral Notice on the register - that way, if they do repossess...and they try to sell the property, any purchaser will be put on notice of your proprietary interest and provide you with the opportunity to put the matter before the Adjudicator should the purchaser seek to cancel the Notice...the Lender has no right to apply for the Unilateral Notice to be removed as it is against his charge.......hope this makes sense?

 

Hope this helps you all cut to the chase?

 

Applecart

[applecart]

Below is detail from 'The Regulatory Reform (Execution of Deeds and Documents) Order 2005' that all Borrowers/private Landlords with BTL's need to familiarise themselves with:

 

http://www.legislation.gov.uk/uksi/2005/1906/article/1/made

 

'EXPLANATORY NOTE

(This note is not part of the Order)

 

This Order reforms the legislation governing the execution of deeds and documents in order to standardise the formal requirements for companies, corporations and individuals.

 

Article 3 replaces the wording in section 74(1) of the Law of Property Act 1925 (c. 20) (“the 1925 Act”) in order to extend the presumption in favour of a purchaser of due execution by a corporation to all instruments under seal. Such instruments may be attested by two members of the corporation’s governing body.

 

Article 4 adds a new section 74A to the 1925 Act. New section 74A(1) clarifies what is needed for an instrument to be executed as a deed. New section 74A(2) provides a rebuttable presumption that an instrument is delivered on being executed, and thereby makes the provision for corporations analogous to that applicable to companies under the Companies Act 1985 (c. 6) (“the 1985 Act”). The relevant provision in the 1985 Act is re-enacted with modifications by Article 6.

 

Article 5 amends section 36A(6) of the 1985 Act and repeals the irrebuttable presumption in favour of a purchaser of delivery upon execution by a company of a document. Article 6 inserts a new section 36AA into the 1985 Act, mirroring new section 74A of the 1925 Act which applies in respect of corporations, and clarifying the requirements for a document to be executed as a deed by a company. Articles 5 and 6 and Schedule 2 also remove the “face-value” requirement from the 1985 Act, which is still required of all deeds by virtue of section 1(2)(a) of the Law of Property (Miscellaneous Provisions) Act 1989 (c. 40) (“the 1989 Act”), and which is clarified by the amendment made by article 8.

 

Article 7 clarifies the rules which apply where an instrument is executed on behalf of another person by a corporation, company or individual. Article 7(1) inserts a new section 74(1A) into the 1925 Act, which provides that the deemed execution in favour of a purchaser in section 74(1) (as amended by article 3) applies where the corporation executes an instrument on behalf of another person. Article 7(2) inserts a new section 36A(7) into the 1985 Act, clarifying that the provisions of section 36A (as amended by article 6 and Schedule 2) which state how a company may execute a document and provide for deemed execution in favour of a purchaser, apply where a company executes a document on behalf of another person. Article 7(3) amends section 1(2)(b) of the 1989 Act to clarify that a document may be executed by a person on behalf of another, and that it is the person who executes the document (whether or not on behalf of another) who must comply with the formalities. Article 7(4) inserts a new section 1(4A) into the 1989 Act to provide that where one person executes on behalf of another, the witnessing, attesting and delivery requirements of section 1(3) apply.

 

Article 8 inserts a new section 1(2A) into the 1989 Act to clarify that the “face-value” requirement set out in section 1(2)(a) is not satisfied merely because an instrument is executed under seal.

 

Article 9 amends section 1(5) of the 1989 Act to provide that the presumption in favour of a purchaser that solicitors, etc, are authorised to deliver a deed on behalf of a party to it, is no longer limited to the creation or disposal of an interest in land.

 

Schedule 1 makes minor and consequential amendments. Paragraph 2 inserts a new section 74(1B) into the 1925 Act to clarify how the presumption of due execution in section 74(1) applies, where the corporation has a director or secretary who is not an individual. Paragraph 3 amends section 74(3) to clarify that the witness to a conveyance by an individual in the name or on behalf of a corporation must attest the signature. Paragraph 4 amends section 74(4) to provide that where a corporation acts on behalf of another person, it may sign the instrument in the name of that other person. Where the instrument is a deed, this must be done in the presence of a witness who attests the signature. This mirrors the position for individuals, as provided by article 7(4).

 

Paragraphs 6 and 7 amend section 7(1) of the Powers of Attorney Act 1971 (c. 27) and insert a new section 7(1A) to make more appropriate provision for execution by an individual attorney on behalf of a corporate donor.

 

Paragraphs 10, 11 and 12 amend the 1985 Act. Paragraph 10 inserts a new section 36A(4A) to provide that for a document to be validly executed, a director or secretary signing in respect of more than one company must sign for each company which is a party to the document. Paragraph 11 inserts a new section 36A(8) to clarify the position in respect of execution where a company has a director or secretary which is itself a corporation. Paragraph 12 makes a consequential amendment to Schedule 22 to include the new section 36AA inserted by article 6 above in the provisions which apply to unregistered companies.

 

Paragraph 14 amends section 1(4) of the 1989 Act to confirm that where an instrument is executed on behalf on another person, signing includes signing the name of the person on whose behalf the instrument is executed as well as signing the individual’s own name.

 

Paragraph 16 makes a consequential amendment to section 130(6) of the Companies Act 1989 (c. 40) to include the new section 36AA inserted by article 6 above in the provisions which apply to foreign companies.

 

Paragraph 17 makes a consequential amendment to the Land Registration Act 2002 (c. 8) to take account of the effect of the amendments to the Companies Act 1985 on electronic dispositions.'

 

Do Remember that Delivery is not caused by the mere words stated on the Deed itself that a Borrower signs....The words 'delivered as a deed' does not mean that it has been delivered - there can be no presumed delivery of the Borrower without the 'acceptance' of the Lender...better put this way:

 

'A deed conveying real estate takes effect and transfers ownership to the named grantee when the deed is delivered. The mere signing of a deed by the owner as the grantor is not enough to divest the owner of his title to an interest in the real estate. Delivery of the signed deed is required.

 

Delivery refers to two separate acts:

 

the grantor’s (Borrower - YOU) intent to convey title, not just the physical handing over of the deed to the grantee; and

 

the grantee’s (The Known Lender that you have a purported mortgage with) acceptance of the grant deed as an immediate conveyance.

 

While the grantor may intend to convey title when he hands over the deed, if the grantee does not accept the deed, the deed will not be considered delivered and a conveyance does not occur.'

 

Says it all really....... : )

 

Apple

[Junidb]

Apple,

 

Thanks a lot.

[Junidb]

Are you a solicitor / mckenzie friend, litigator by any chance

[applecart]

Are you a solicitor / mckenzie friend, litigator by any chance

 

 

I'm certainly no Solicitor, Lawyer or Barrister - I think if I were I would not be free of the burden of belonging to a legal fraternity that relies that I adapt a protocol that 'doesn't rock the boat' on some misconceived notion that such a stance is in 'the public interest'. (I mean no offence to any solicitor/Lawyer/Barrister that gives advise to many CAG members of their own free will - but I can't help but notice that not one of the legal fraternity have stepped forward to work with consumers to protect a very 'public interest' - the very places they live, invest and bring up families or assist fellow members of the public to do (btl's) against lenders who are purely in it for the money...and not the public interest at all - I'm sorry to say it so bluntly...but, I can't think of any other 'kind' way of saying it).

 

Mckenzie Friend/Litigant in Person : )

 

The CAG is the perfect outlet for any McKenzie Friend to let others know what they know, share experience and assist fellow members of the public avoid the pitfalls and keep their homes - by empowering them with the necessary legal knowledge to help them understand their rights, power and independence in this; our democratic society - litigants in person, get the freedom and pleasure of knowing they have been there, done it and wearing the 'T-Shirt' so's to speak....it is not an easy road; you are alone, attending courts of Law, up against the 'fraternity' with only the words of the Legislator in your sweaty palm to assist you.....You are free to get the word out there without the restraints of a 'fraternity' (subject to the CAG allowing it of course - but then, the more who come on here and say what they know - the more consumers should feel obliged to say 'Thankyou' as you have done and hopefully this will lead you to give a little financial support to the CAG, so that citizens such as I can continue to research the legalities that work in your favor)

 

Should I study to be a Solicitor, Lawyer or Barrister?.... no need to...Independence is a freedom that money simply can't buy : )

 

Apple

[applecart]

There is a host of detail that relates specifically to the securitisation of a Borrowers Mortgage....there were many detractors who sought to make Borrowers believe there was no redress.... this is not the case.....there is no need to go over the subject any further given that it is the case that knowledge of what the lender does or does not do with his purported interest with third party entities has no baring on the relationship between the Borrower and the Originating Lender.

 

What is of interest to the Borrower...and remains the core interest..is...has the Original Lender secured a valid interest in the Borrowers legal estate?

 

For that, it remains the case that there needs to be in evidence a valid, duly executed deed - as I have said previously - if there is no valid deed - there is no transfer of any legal interest from the Borrower to the Lender.

 

We are again being detracted into the belief that because the Borrower has signed a document headed up as a Deed and has signed to say that it is 'delivered as a deed' and attested by a witness, that HMLR is correct in registering the interest of the lender to secure a right to legal possession. (LPA ss53,54)

 

Thankfully, detractors are rebuffed by the timely findings in the Bibby Financial Services case which gives in depth understanding of the creation of a Deed and explains how and why 'Delivery' is essential for the validity of the Deed.

 

Where a Deed is at issue - the limitations act provides that a claim for redress can be within a time limit of 12 years.. (so, if the repossession of your home happened within the last 12 mths then you should still be able to seek redress)

 

Bare in mind that in that case the signatures of all parties were evident - it was the 'delivery' that was at issue - so what say the consequence when a Deed has only one parties signature with no signature from the Lender...This means there is No Execution and No Delivery......

 

Here's some quotes from the Judgment of His Honor Judge Richard Seymour QC - imagine you are the defendant in the case..

 

.."The question of 'delivery' was material to another point raised by the defendants. It was contended that the Bibby ID Agreement, also intended to be made by deed, had not been delivered because at the meeting at which the signature page of the version of that document put before Mr Magson and Mr Scott was signed by them, amendments to that document also were made in manuscript, with a view to a clean copy incorporating the amendments being produced to be signed subsequently. Thus the version of the Bibby ID Agreement relied upon had never, said the defendants, been delivered by QCFS. That was an important point, for, if it were well founded, it seemed to dispose of the claims in this action....

 

Bibby FS could not seek to enforce a guarantee of obligations which QCFS had never assumed, and equally there could be no question of either Mr Magson or Mr Scott being liable in respect of breaches of obligations on the part of QCFS allegedly owed to Bibby ID which QCFS had never assumed....

 

Another aspect of the issue of delivery of the Bibby ID Agreement was that it appeared that it had never been delivered by Bibby ID as it had never been signed on behalf of that Company...[my emhasis]

 

....Each of the Guarantees and Warrantees which Mr Magson or Mr Scott signed and which formed the bases of the claims against them in this action was, in form, a deed, so was the Bibby ID Agreement which it was said to have been warranted by the Warranties. Thus each of the Guarantees and the Warranties, as well as the Bibby ID Agreement was required to be executed in the manner required by law.

 

In the case of a deed executed by an individual it is provided, so far as is presently material, by Law of Property (Miscellaneous Provisions) Act 1989 s.1 (3) that:-

 

An instrument is validly executed as a deed by an individual if, and only if -

(a) it is signed -

(b) by him in the presence of a witness who attests the signature

(b) it is delivered as a deed by him or a person authorised to do so no his behalf...

 

so far as limited liability companies are concerned, Law of Property Act 1925 s.74A provides that:

 

(1) An instrument is validly executed by a corporation aggregate as a deed for the purposes of section 1(2)(b) of the Law of Property (Miscellaneous Provisions) Act 1989, if and only if -

(a) it is duly executed by the corporation and

(b) it is delivered as a deed

 

Thus, in order for a document to be enforceable as a deed, whether executed by an individual or a limited liability company, it is necessary for it to be delivered as a deed. What amounts to delivery of a deed in English Law has been established for over 400 years. It was explained by Popham J in Hawksland v Gatchel (1601) Cro.Eliz.835 at pages 835 - 836:-

 

'for if, upon delivery, the words spoken by the obligor purport that it shall not be his deed, it is clear that it is not: as where one causeth an obligation to be written and sealed in my name, and brings it unto me, and prays that I would deliver it as my deed, and I say, 'Do you such a thing, and take it as my deed, otherwise not: "it is clear, that it is not my deed until the thing be performed. So if the obligor saith, 'Take it to you, I will not deliver it as my deed;' it is not his deed, wherefore in the principal case, when the obligation is delivered as an escrow, by express words, it is not possible that it should be his deed, fr the words are not sufficient ot make it so until the condition be performed'

 

The critical thing is that the person who has signed the deed must have separately indicated that he intends to be bound by the deed. Mere signature is not enough, nor is it enough that what looks like a deed has been given to the person who appears to be the beneficiary of ti - the issue is nto whether the document has been physically handed over to the beneficiary, but whether the person whose deed it is supposed to be intended to be bound by it. The point was explained by Sir Charles Hall V.C in Watkins v Nash (1875) LR 20 Eq 262 at page 266:-

 

'you cannot deliver the deed to the grantee himself, it is said because that would be inconsistent with its preserving the character of an escrow. But if upon the whole of the transaction it be clear that the delivery was not intended to be a delivery to the grantee at that time, but that it was to be something different, then you must not give effect to the delivery as being complete delivery, that not being the intent of the persons who executed the instrument'."

 

He went on the give judgment in favor of the Defendants...

 

BY ORDER OF THE ADJUDICATOR ANN McALLISTER, the Decision looked at the 'it' element to conclude that 'it' is material to both the Borrower and the Lender for the 'it' relates to the entire Deed - not just the signature requirement of the Borrower as we are being detracted to believe....

 

"64. The Applicant’s argument proceeds as follows. The ‘it’ in part (a) must refer back to the instrument in question. This means the entire document, and not merely the execution pages or any other page.

 

65. The point was considered by Underhill J in R v Her Majesty’s Commissioners of Revenue and Customs [2008] EWHC 2721. In that case the claimants sought judicial review of the decision of HMRC to seek warrants to search their offices and the decision of the Crown Court to grant the warrants. HMRC’s case was that the scheme in question was flawed and that the claimants sought dishonestly to conceal the flaws. The judge therefore had to consider whether the scheme was flawed.

 

66. It was common ground that the documents in question were intended to be deeds. It was also common ground that the clients were asked to sign incomplete drafts of each of the three documents and that, when fresh documents in final form came to be executed, the client was not asked to sign these versions but instead the signature pages from the drafts were detached and stapled to the final version. There were differences between the drafts and the final versions.

 

67. The claimants argued that there was nothing wrong with the procedure adopted, and referred to a number of decisions which state that a contract in writing could effectively be altered after the signature provided that the party making the change had the authority so to do. On the facts, the judge rejected these submissions. He also stated that he was not aware of any authority, in contract law, where a signature page was taken from one document and recycled for use in another. He went on to say: ‘The parties in the present case must be taken to have regarded signature as an essential element in the effectiveness of the documents: that is to be inferred from their form. In such a case I believe that the common understanding is that the document to be signed exists as a discrete physical entity (whether in a single version or a series of counterparts) at the moment of signing. The significance of this is not entirely talismanic (though it would not affect my view even if it were): the requirement that a party sign an actual existing authoritative version of the contractual document gives some, albeit not total, protection against fraud or mistake.’ [39]

 

68. Underhill J then went on to consider what he described as the additional factor that each of the three key documents was intended to be a deed. He set out the provisions of section 1(3) and said: ‘Mr Bird submitted, and I agree, that that language necessarily involves that the signature and attestation must form part of the same physical document (the ‘it’) referred to at (a) which constitutes the deed.’ [40]. He also stated: ‘ I accept that the flaws on which HMRC rely are essentially formal. But I see nothing wrong in applying a strict test of formality to the validity of the agreements with which we are concerned in this case. The entire raison d’etre is to create – and demonstrably to create – a series of formal legal relationships: if they do not do that, they do nothing.’

 

69. It is correct to say that in the Mercury case there were differences between the two versions of the documents. This is not the case here. There is only one version of the Lease. But it seems to me that section 1(3) clearly provides that the signature and attestation must form part of the physical instrument at the moment of signing. This requirement stands alone, regardless of whether there were earlier drafts (which may or may not have been materially different). The policy argument is that the signature should reflect the proper agreement: if the signature is obtained separately the maker cannot be sure of the terms of the deed and the risk of fraud or mistake remains.

 

70. Mr Ollech submitted that, carried to an extreme, this line of reasoning would produce a situation where a document would be invalid if the signature pages were signed in another part of the room or possibly even merely detached from the remainder of the deed. The question must always be whether the signature page and other relevant pages formed part of the same physical document. That will be a question of fact in each case. In this case, the relevant pages were clearly separate from the remainder of the Lease: they were signed separately and returned separately (and not by Mr Westwood) at some unspecified time after the other leases were executed (and after Mr Westwood had stated, initially, that he did not intend to execute the Lease) and were accordingly not in any sense part of the ‘it’ referred to in the statute.

 

71. Section 52(1) provides that all conveyances of land are void for the purpose of creating a legal estate in land unless made by deed. Accordingly, in my judgment, the Lease is void as it was not made by deed.

 

76. Although the point is not free from difficulty, I have come to the view that the Applicants’ submissions on this point are correct. The attestation of a witness was held to be only secondary. The signature on the deed is not secondary: it is fundamental to the validity of the deed. The lack of a (valid) signature cannot be cured by estoppel. If the signature is not on the complete instrument it is not a signature on the deed. It is merely a signature on one or more pages which do not, at the moment of signing, form part of the deed. The fact that the deed (the ‘it’) is not one document at the moment of signing leaves open, of course, the possibility of fraud or mistake. If it were possible to argue that the doctrine of estoppel can cure the absence of a valid signature on the deed itself the statute could, in all circumstances, be circumvented. Formality has its well established place in the law, even though (as with the operation of the limitation period) the outcome may seem arbitrary, and, in the case of deeds, possibly commercially inconvenient."

 

 

These are the Authorities that Borrowers should be aware and familiar with...they deal specifically with the Deeds that are party to the relationship between the Borrower and the Originating Lender and the requirement for a signature from both parties - not just the Borrower.

 

HMLR's practice guide 39 at Clause 2.2 clearly states that it is not concerned with the underlying agreement between the Borrower and the Lender. The Adjudicator of the HMLR has shown a clear decision, that they are concerned and will cause HMLR to set aside the charge of the Lender where the Deed is void.

 

It is a UN1 form that assists borrowers to protect their estates and homes against the Lender in the first instant. The Borrower does not have to justify to HMLR any reason as to why they wish the unilateral notice entered in this form. It is only if you apply for an agreed notice that you have to justify the request.

 

I hope this helps to keep away from detractions and keep things in perspective?

 

Apple

[caro]

Thanks for the information applecart and to all who have contributed to this thread..

 

Obviously this thread has attracted a lot of attention, but has become rather long, so in line with CAG guidelines and with the OPs agreement I'm going to close this thread, but keep it as a sticky for now.

 

Anyone wishing to share their own experience should start their own thread for advice or may wish to join the discussion started by keates here.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?384126-Lpa-receivers-power-of-sale

Edited March 26, 2013 by caro