TMB Securitisation

[applecart]

Apple,

 

An interesting read! Now do I use this in a letter to HMLR to challenge the unenforceable deed?

 

Most definitely....because, the registrar has effectively registered an interest that confuses a equitable right with what is at best an equitable right, the Registrar must take on board that your fear is that the lender will rely under LRA 2002 s.58 (1) to take possession of your home, when in the circumstances; the Deeds evince that only an equitable interest would apply by virtue of the LPA 1925 s.1 (7).....

 

Submit a UN1 form with a fee of £40 at the same time. This is a notice entered on your titles to essentially say that because the Lender failed to secure a legal interest, that you remain the registered beneficial proprietor and notifies the world at large that there is an issue - if the lender or any other body seeks to dispose of any purported interest or do anything in relation to your title, you would be notified immediately.

 

UN = Unilateral Notice

 

Unilateral Notices are the perfect remedy for the circumstance - because you get to notify the world at large that the Deeds are void. The Lender is not notified of the notice until after it is entered - so, therefore cannot challenge it until after it is entered - they would be hard pushed to challenge it - given that the Deed is their Deed, that they presented to you, that they did not bother to sign....the UN protects your interest against the Lenders further dealings in relation to your estate/property

 

Hope this helps?

 

Apple

[applecart]

Whoops...meant to say it confuses a legal right with one that at best is an equitable right.....

 

Apple

[bhall]

http://www.consumeractiongroup.co.uk/forum/showthread.php?335240-TMB-Securitisation&p=4172508&viewfull=1#post4172508

 

if it has both signatures, and you have evidence of the mortgage sold to an SPV, then this too is provides grounds for a challenge, but it will be harder to do, because the courts are too aware of the Paragon v Pender summary judgment.

 

In the Penders case they had made an application seeking permission to appeal - that application was dismissed summarily by 3 lordships.....the dismissal of the application to appeal has been confused as an 'authority' for all things 'securitisation' ever since.

 

The confusion has been caused simply because the application was heard as an 'oral' application, the 'oral' application went before a singly judge, who agreed the application, upon that agreement, it went before 3 lordships who were looking to decide if permission to appeal should be allowed, out of time, and stay of execution....they decided on the facts of that case, that they would not grant the right to appeal... The summarily judgment is and was not final, and nor can it be considered to be so either... on the ground that it was a decision from an oral hearing for permission to appeal...

 

Apple

 

It would appear that again the only confusion would be yours Apple. I know you like to skip other anything that doesn't agree with your arguments, but please at least read what is said.

 

Paragon Finance Plc v Pender & Anor [2005] EWCA Civ 760 (27 June 2005)

 

1. This is an appeal by Mr and Mrs Pender, the defendants in a possession action brought against them by Paragon Finance plc ("Paragon") as chargee under a Legal Charge ("the Legal Charge") dated 1 August 1989 of a freehold property at 29 Knightswood Close, Broadfields Estate, Edgeware, Middlesex HA9 8FR ("the Property").

 

As you can see by the first four words of Pender 2005, it was not an application to appeal, it was an actual appeal.

 

The other big give away is paragraphs 130,131 and 132 with 130 stating I would dismiss this appeal and 131-132 stating I agree

[bhall]

The conclusion is:

 

"The lender does not have to sign the Deed", as per telecon with HMLR.

 

As you would expect the HMLR is correct the lender does not have to sign the deed. No where within the applicable legislation does it expressly state or even imply that both signatures are required.

 

Apples argument is misconceived. The premise that the deed is the lenders deed is incorrect. Whilst it has been drawn up by the lender, it is the borrowers deed as it is the borrower giving the charge to the lender. The borrower is the grantor and the lender is grantee.

 

Despite everything that Apple has posted on the topic and his/her apparent knowledge on the topic there is one crucial point that is missing. The legislation posted tells us what a person must do when they give a deed and what a company must do when it grants a deed.

 

Nothing posted except the illogical views and opinions of Applecart state that the mortgage deed must also be signed by the lender. In truth if the deed is unconditional, to claim the lender must sign it is a complete fallacy.

 

I would urge you TMB to read this thread with its more balanced and factual opinion

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?386717-Mortgage-Deed-Does-it-need-to-be-signed-by-the-lender

 

It will then become very clear that if the lender has not signed the deed, it does not become void. Sadly this is an inconvenient truth Apple refused to accept.

 

Happy Easter

 

Ben

Edited March 31, 2013 by bhall

[bhall]

Hello TMB

 

Eagle Star Insurance Company Ltd v Green & Anor [2001] EWCA Civ 1389 (8 August 2001)

Helden v Strathmore Ltd [2011] EWCA Civ 542 (11 May 2011)

 

Are both Court of Appeal cases that expressly deal with mortgage deeds that have not been signed by the lender. In both cases, the mortgage deeds were found to be valid and enforceable.

 

Both cases confirm that as a matter of law the only requirement for a mortgage deed is that it is signed by the person creating or disposing of the interest. (except if there is an escrow condition etc)

 

This is confirmed by both the case law and applicable legislation.

[bhall]

In relation to the arguments about mortgage securitisation, I would urge you to read the following cases -

Santander UK Plc v Harrison & Anor [2013] EWHC 199 (QB) (07 February 2013)

Bank of Scotland Plc v McGuigan [2012] NICh 19 (19 June 2012)

Paratus AMC Ltd & Anor v Countrywide Surveyors Ltd [2011] EWHC 3307 (Ch) (14 December 2011)

Wellstead -v- Judge White & Anor [2011] IEHC 438 (25 November 2011)

Southern Pacific Securities 05-2 Plc v Walker & Anor [2010] UKSC 32 (07 July 2010)

Southern Pacific Personal Loans Ltd v Walker & Anor [2009] EWCA Civ 1218 (12 November 2009)

Paragon Finance Plc v Pender & Anor [2005] EWCA Civ 760 (27 June 2005)

Paragon Finance Plc v Pender & Anor [2003] EWHC 2834 (Ch) (25 November 2003)

GMAC RFC Ltd v Grant-Sinclair & Anor [2001] EWCA Civ 1793 (19 November 2001)

Edited March 31, 2013 by bhall

[tmb70]

Hi bhall

 

Thank you for your comments, I have not yet read all your links.

 

Is it a fair assumption you are in disagreement, whereby if the lender has not signed then there is no case to challenge?

 

Cheers for now

[applecart]

Wow Ben, you have been busy : )

 

As your comments are directed at my posts - it would be remiss of me to ignore you....

 

From your comments re Paragon v Pender - as to whether it was an appeal or not - you have clearly not been party to an appeal hearing - if you had you would know that the written application in Paragon v pender was dismissed - the application was renewed to an 'oral hearing; - the 'oral' application was allowed by 'Jacob' - then heard by 3 Lordships - that was the 'oral' application that was dismissed Ben - not any appeal - had the oral application been allowed by the 3 Lordships - then it would have gone to full appeal .... so, please Ben....no offence, but, when you are looking to follow on from what I post, be sure you know what you are talking about first...the 'appeal' did not clarify that it was an 'oral' appeal application Ben, but for those who know and understand the administrative process - it doesn't need to - we just know the difference : )

 

As regards all your other points - you are correct the thread you created covers all the points you raised - it is to be noted that you say....you would be the first to accept if you were wrong .... eeerm... looks like being found to be wrong is not something that rests well with you after all ....

 

Apple

[bhall]

Hi bhall

 

Thank you for your comments, I have not yet read all your links.

 

Is it a fair assumption you are in disagreement, whereby if the lender has not signed then there is no case to challenge?

 

Cheers for now

 

Good Morning TMB

 

That is a fair assumption. I would argue that a lenders signature is only required when it is an escrow condition or if the deed contains some form of obligation from the lender to the borrower.

 

By way of an example the following is taken from a case posted and discussed in the Mortgage Deed thread.

 

116. In my view the relevant facts place the Settlement Deed firmly in the second of the three categories identified by Nourse LJ in Longman v Viscount Chelsea. This was an escrow. In other words, the Settlement Deed, when sent by Memery Crystal, in accordance with their instructions, to King & Spalding on 21 July 2009 was in the class of document described by Farwell LJ in the Foundling Hospital case (at p 377) as one which is "delivered upon a condition on the performance of which it will become a deed, and will take effect as from the delivery". The conditions, and the only conditions, upon which the Settlement Deed was delivered were those set in the e-mail sent at 5.01 p.m. on 21 July 2009 by Memery Crystal to King & Spalding to which it was attached, namely, first, that it was to be signed for Silver Queen, and secondly, that it was then to be sent back to Memery Crystal. Those conditions had both been discharged when King & Spalding's e-mail of 4.04 p.m. on 22 July 2009 was sent to Memery Crystal, whereupon the Settlement Deed took effect as a deed. Thus the escrow conditions were promptly discharged, and there is no room in the present case for any argument that their performance was unreasonably delayed (see Harman LJ's caveat in Beesly v Hallwood Estates (at p 118)). Being irrevocable from the time of its delivery as an escrow, the Settlement Deed could not be recalled by PPS pending its taking effect. Thus PPS's purported withdrawal "from the exchange of the settlement agreement" in Memery Crystal's e-mail of 8.15 a.m. on 22 July 2009 was not, and could not be, an effective revocation of it.

 

The deed was delivered upon a condition of performance, as detailed in the email correspondence. That condition of performance was the signature of the grantee. Once it had been signed the condition of performance had been completed the escrow was discharged and it became his deed.

 

Without any such condition stipulating the requirement of signature of the lender or an obligation of the lender within the deed, it does not need to be signed by the lender.

 

If you look at the legislation, it does not say that a deed (unlike a contract) has to be signed by both parties.

 

Apple will tell you what it has to say, but when you read it for yourself, you will see that it doesn't actually say that at all.

 

s.74 of the LPA 1925 is a typical example. It relates to the execution of deeds. As shown by the previously posted case law, it is the grantor that executes the deed, as it is the grantor giving his mortgage deed (charge) to the lender.

 

s.74, much like the other legislation posted only applies to deeds granted by a company. Not as in the case of a mortgage deed when the lender is the grantee.

 

When you have some spare time, take a look at the legislation posted by Apple, no where does it actually say that the grantee's signature is required or without it the deed is void and unenforceable. After all the case law posted (both courts of appeal judgements) confirm that a deed that hasn't been signed by the grantee is both valid and enforceable.

 

I hope my contributions to your thread have been helpful.

 

Hope you had a great Easter

 

Ben

Edited April 2, 2013 by bhall

[bhall]

Ask Apple to show you where it actually says in any legislation that an unconditional deed must be signed by all parties.

 

s.2 of the Law of Property (Miscellaneous Provisions) Act 1989 which applies to contracts states -

 

(3)The document incorporating the terms or, where contracts are exchanged, one of the documents incorporating them (but not necessarily the same one) must be signed by or on behalf of each party to the contract.

 

The legislation could not be more clear that a contract must be signed by or on behalf of each party.

 

Yet s.1 which applies to deeds of the same legislation, does not include any such provision or requirement.

 

If it was a requirement, wouldn't s.1 include the same or similar provision as s.2 ?

 

This in itself, demonstrates the weakness in Applecarts opinion. It just isn't supported by legislation.

 

If as a matter of law the lenders signature was required, legislation would stipulate such a requirement.

 

It doesn't so as a matter of law ( except for the reasons previously posted) as a matter of law the signature of the lender is not required.

 

This is not just my personal view or opinion but is the repeated judgements of Court's of Appeal (as I have posted).

 

If the deed is not signed by the lender, it does not make the deed void or unenforceable, I can't really be any clearer.

 

Thanks

 

Ben

Edited April 2, 2013 by bhall

[applecart]

Ask Apple to show you where it actually says in any legislation that an unconditional deed must be signed by all parties.

 

LPA 1925 s.52 - 2005 Order that amends the 1989 Act in relation to a Borrowers deed to be 'delivered' NOT 'delivered by him' as was previously the case - a requirement in force since 2005 - the fact that 1989 is not updated does not mean that it is not in force Ben.

 

s.2 of the Law of Property (Miscellaneous Provisions) Act 1989 which applies to contracts states -

 

(3)The document incorporating the terms or, where contracts are exchanged, one of the documents incorporating them (but not necessarily the same one) must be signed by or on behalf of each party to the contract.

 

The legislation could not be more clear that a contract must be signed by or on behalf of each party.

 

Yet s.1 which applies to deeds of the same legislation, does not include any such provision or requirement.

 

You refused to factor in the 2005 Order Ben on the misunderstanding that because the 1989 Act is not updated as yet, that the 2005 Order was not in force - I thought you now appreciated that it has been in force since 2005 - the fact that the 1989 Act has not been updated does not mean that it is not in force

 

If it was a requirement, wouldn't s.1 include the same or similar provision as s.2 ?

 

Clearly not Ben, a contract for sale is not the same as a Deed - the legislator has made provision for the execution of deeds under the relevant Companies Acts for Lenders and under the LPMP Act for Borrowers - all of which relate to the necessity for each party to a deed to comply with s.1 (2) (a)(b) of the LP(MP) Act 1989. Whilst this may not be clear and has clearly evaded HMLR since 2005 - this does not mean it is not the Law - or that the lender is not intended to execute the deed or that HMLR intends to misguide the public or companies party to a deed into ignoring the law

 

This in itself, demonstrates the weakness in Applecarts opinion. It just isn't supported by legislation.

 

eeeerrrrm..... I beg to differ.... which part of the 2005 Order is not Law? - which part of the amendments it makes to the LP(MP) Act 1989 is not Law? or the Companies Acts or the LPA 1925 s.52 is not Law?.... come on Ben, you are now seriously clutching at straws now mate.....

 

If as a matter of law the lenders signature was required, legislation would stipulate such a requirement.

 

eeerrrrm - get to grips with what 'must be delivered by him' as amended to 'must be delivered' means please and provide for us your interpretation at your earliest convenience......

 

It doesn't so as a matter of law ( except for the reasons previously posted) as a matter of law the signature of the lender is not required.

 

Like I said, above I have stated the LAW for you that relates to the finding that the Lenders signature is required for a valid deed - with respect if the Judge in 'Bibby' was able to rely on LP(MP) 1989 to check for the Borrowers signatures in that case - then the LPA 1925 s.74A for the Lenders signature - why do you think he did that Ben? - if the Lenders signature was not a necessity to the Deed, why bother at all mention the LPA s.74A?.... and why would you assume he would not do the same for a Borrower against a Lender in a mortgage deed????? - are we to interpret that a Borrower is a lessor being than a corporate for some reason, or that there is no protection for Borrowers or that the CA 2006 s.46 is there for no reason other than for deeds between companies - come on Ben....

 

This is not just my personal view or opinion but is the repeated judgements of Court's of Appeal (as I have posted).

 

Ben, the cases you rely on for 'your opinions' are not relevant to Deeds - and you know it.

 

If the deed is not signed by the lender, it does not make the deed void or unenforceable, I can't really be any clearer.

 

We are looking for you not only to be clear Ben, we require that you are honest too - you cannot portray honesty when you don't show any regard to the Law that protects Borrowers rights or to alternative Case Law that is in favor of Borrowers -

 

Thanks

 

Ben

 

So, with the greatest respect, would you be good enough to come back with findings as based on the Law without reference to cases that have nothing to do with deeds or your interpretation of those cases - for behind the veil that Lenders put up - it is only the Law that will prevail in the end.

 

Apple

[bhall]

Hi Apple,

 

I just want to achieve clarity on something that in my mind is 'black and white', that is:

 

1. A signature from the borrower only constitutes a challenge

2. Signatures from both parties does not constitute a challenge

 

From my research I cannot and have not found anything in law or cases etc that actually says '1.', the only conclusive fact I have discovered is HMLR have stated verbally over the phone that the lender does not have to sign the deed, only the borrower.

 

This is not the result I want!

 

Hello TMB

 

You will see that nothing posted in this thread (or other threads) says '1' either. Except of course the view expressed by Apple.

 

The basis of Apples argument is misconceived and not supported by case law or legislation.

 

It fails to consider what a deed actually is, the purpose of a deed or the actual law that applies to deeds.

 

Personally, I would advise you to seek independent legal advice before proceeding on the basis that a deed that has not been signed by a lender is void.

 

Some law firms offer free initial appointments, you could try 2 or 3 just to get a balanced legal perspective, rather than a ill informed view point of someone posting on the Internet.

 

If you do seek legal opinion or make any progress could you please continue to post in this thread to keep other Caggers informed.

 

Many Thanks

 

Ben

[applecart]

I have posted on the mortgage deed thread more than enough legislation and case law.....have explained what a deed is, its purpose and how it applies to the legislation....

 

Like I said Ben, we require that you be honest.....you are not being honest are you?

 

I get the impression that you sit back at your laptop - giggling to yourself - looking for any way you can to be dis- tractive.

 

I'd like to think your intentions are honourable - but I am beginning to struggle with this view of you Ben .........I'm sure others are too.

 

Apple

[bhall]

Wow Ben, you have been busy : )

 

As your comments are directed at my posts - it would be remiss of me to ignore you....

 

From your comments re Paragon v Pender - as to whether it was an appeal or not - you have clearly not been party to an appeal hearing - if you had you would know that the written application in Paragon v pender was dismissed - the application was renewed to an 'oral hearing; - the 'oral' application was allowed by 'Jacob' - then heard by 3 Lordships - that was the 'oral' application that was dismissed Ben - not any appeal - had the oral application been allowed by the 3 Lordships - then it would have gone to full appeal .... so, please Ben....no offence, but, when you are looking to follow on from what I post, be sure you know what you are talking about first...the 'appeal' did not clarify that it was an 'oral' appeal application Ben, but for those who know and understand the administrative process - it doesn't need to - we just know the difference : )

 

As regards all your other points - you are correct the thread you created covers all the points you raised - it is to be noted that you say....you would be the first to accept if you were wrong .... eeerm... looks like being found to be wrong is not something that rests well with you after all ....

 

Apple

 

Hello Apple

 

" so, please Ben....no offence, but, when you are looking to follow on from what I post, be sure you know what you are talking about first...the 'appeal' did not clarify that it was an 'oral' appeal application Ben, but for those who know and understand the administrative process - it doesn't need to - we just know the difference : )"

 

Are you sure your understanding is correct ? Are you sure you know the difference ? Equally no offense but I don't think you are or you do.

 

I think you have confused yourself between the oral application for permission to appeal and the actual oral hearing of the permission to appeal.

 

To help you, I will cut and paste the relevant parts below.

 

The written application oral application that you refer to was made on 9th January 2003 - being before Paragon Finance Plc v Pender & Anor [2003] EWHC 2834 (Ch) (25 November 2003)

 

If you read Paragon Finance Plc v Pender & Anor [2003] EWHC 2834 (Ch) (25 November 2003)

1. This is the Defendants application for permission to appeal and if permission is granted, an appeal against the order of Her Honour Judge Mayer sitting in the Barnet County Court, when she dismissed the Defendants application dated 21st January 2002 to set aside an order for possession dated 5th January 1995. She further dismissed the Defendants oral application made at the hearing on 9th January 2003 for permission to appeal out of time against the order for possession.

 

You will also note from the above "This is the Defendants application for permission to appeal"

 

If you then move on Paragon Finance Plc v Pender & Anor [2005] EWCA Civ 760 (27 June 2005)

 

5.Mr and Mrs Pender sought permission to appeal to this court against Peter Smith J's order. Permission for a second appeal was refused on paper by Arden LJ but limited permission was granted by Jacob LJ at an oral hearing on 29 July 2004.

 

81. On 29 July 2004 Jacob LJ granted permission to appeal to this court on the three issues raised in Mr Aaron's witness statement, viz: the title to sue issue, the implied obligation issue, and the extortionate credit bargain issue. He refused permission to appeal on the human rights issue.

 

Whilst you are correct to say that the oral application to appeal was dismissed, it was actually dismissed before the above subsequent hearings.Rather than as you say "the 'oral' application was allowed by 'Jacob' ", Jacob did not in fact allow the 'oral' application, he granted permission to appeal at an oral hearing on 29 July 2004.

 

The 2005 case as I have previously posted was in fact an appeal hearing with arguments on both sides in regard to the title to sue issue, the implied obligation issue, and the extortionate credit bargain issue

 

To put it plainly, the 2003 case was an application for permission to appeal, whereas I have previously posted the 2005 was the actual appeal.

 

so...

" so, please Ben....no offence, but, when you are looking to follow on from what I post, be sure you know what you are talking about first...the 'appeal' did not clarify that it was an 'oral' appeal application Ben, but for those who know and understand the administrative process - it doesn't need to - we just know the difference : )"

 

• No offense taken Apple, as it would not appear that it is me that isn't sure what they are talking about.
  
• The appeal did not clarify that it was an 'oral' appeal application because it wasn't an appeal application, it was in fact an appeal.
  
• The oral hearing was heard by Jacob and permission was then granted to appeal.- the title to sue issue, the implied obligation issue, and the extortionate credit bargain issue. He refused permission to appeal on the human rights issue
  
• The appeal was then heard and the arguments of Pender dismissed.
  

I hope the above is of assistance to you

 

 

Thanks

 

 

Ben

Edited April 8, 2013 by bhall

[applecart]

Thanks Ben : )

 

What you are saying if I understand you correctly is that Jacob agreed the oral application that was renewed from a written application application...Remember at the time the matter came before Jacob it was still an 'application for an Appeal' NOT 'An Appeals' - Remember also, that the Penders were trying to get the Oral application agreed, before they could get to a Full Appeal..........Jacob in agreeing the oral application to appeal is only the first 'hurdle' Ben...... in getting past that 'hurdle' Ben.... they then had to get past the 3 Lordships as a second 'hurdle' .........this is not the same as Jacob granting the Penders a right to a FULL Appeal Ben..... Jacob agreed that they could commence to the second 'hurdle' on the points you submitted in your post.........being granted a 'right for the oral application to be heard' is not the same thing as granting a 'right to appeal' it is only the grant of an 'oral application to appeal'...... it is that Oral application at the second 'hurdle' that is heard by 3 Lordhships Ben - if the Penders could have convinced the 3 Lordships that there was indeed merit in taking the matter through to 'FULL APPEAL' - which they did not do..... that we could rely that a precedent had been set - No such Full Hearing was granted for ultimately as we all know the 'Oral Application' whilst heard by the 3 Lordships did not convince them that there was any merit in allowing the Appeal or for it to go to FULL APPEAL Ben.

 

It is only 'if' and 'had' the 3 Lordships permitted the Oral application to move forward to 'Full Appeal' - that the Penders bundles would have been directed to be sent to the Respondent - in preparation for a FULL appeal hearing.........This never happened Ben...... the Oral application was dismissed .... there was no exchange of documents....because the oral application was subsequently dismissed by the 3 Lordships Ben.....

 

If they had agreed the oral application.... then we could rely that the matter had gone to FULL Appeal - yes it is true that from the content of the appeal application, that there is much that can be learnt, and that the dismissed application is flagged up at any given opportunity by Lenders Ben, ... but, at the end of the day, the 3 Lordships were not presiding over a FULL Appeal hearing.....

 

This is not to say, that many of us, myself included, thought that it was a Full Hearing.... I have since swatted up - so I can understand the difference now of course....

 

It can be confusing I know, but I'm conscious that it is important to validate that which I post to the best of my ability before I post it - as I did in relation to the Penders application for appeal : )

 

I'm conscious also that it is because of a number of ambiguous posts in the past that Consumers including me can and was unwittingly misled... which I'd like to think is not your intent Ben.....

 

Apple

[bhall]

Hello Apple

 

I am not attempting to mislead anyone. Indeed to ensure I do not misled anyone I have provided extracts from the actual case to show beyond any reasonable doubt that your assertion that the 2005 was an application to appeal was factually incorrect.

 

There can be no doubt that the 2005 case was in fact an appeal. It was granted as a result of an oral hearing. The appeal was granted by Jacob in regard to 3 of the 4 areas the Penders applied to appeal.

 

As confirmed by paragraph 81 of the 2005 Appeal

 

81. On 29 July 2004 Jacob LJ granted permission to appeal to this court on the three issues raised in Mr Aaron's witness statement, viz: the title to sue issue, the implied obligation issue, and the extortionate credit bargain issue. He refused permission to appeal on the human rights issue.

 

Only permission to appeal on human rights was refused.

 

The appeal was heard with arguments based upon the title to sue, the implied obligation issue, and the extortionate credit bargain issue.

 

As previously posted the first few words of the 2005 case clearly state "This is an appeal" there is no confusion and no ambiguity in that it was not an application to appeal (as that had already been heard and granted)

 

To be clear I am extremely familiar with the procedure of making an application to appeal and an actual appeal.

 

Anyone can see by reading the 2005 case that it was an appeal and that all the arguments except on human rights were heard.

 

The three lords passed judgements on all of the issues that were heard in the Court of Appeal as a result of the application to appeal previously being successful and granted by Jacob at the oral hearing.

 

It may be better for anyone reading this, if you try to remain factual and rely upon the facts - in other words what is actually said in the 2005 case and not what you wish it to mean.

 

You have posted that even though it says it is appeal - you know it wasn't. Really Apple ? That is a bold claim.

 

You should take a look at Halbury's it confirms the impact of the 2005 case.

 

There is no basis to claim that the 2005 case was anything other than an appeal.

 

Hope that clarifies that it was not in any shape or form an application to appeal. It was an appeal on all points except human rights.

 

Thanks

 

Ben

 

http://www.practicalconveyancing.co.uk/content/view/9474/0/

 

http://www.propertylawuk.net/mortgagepossessionmisc.html

 

http://www.casecheck.co.uk/CaseLaw.aspx?EntryID=12097

 

http://www.newlawjournal.co.uk/nlj/content/after-party

Edited April 8, 2013 by bhall

[bhall]

We should not forget the number of judgements made in the 2005 hearing in regard to the area's upon which the application to appeal was previously granted

 

http://www.bailii.org/ew/cases/EWHC/QB/2013/199.html

 

Is an example of a case that refers to one of the precedents set by the 2005 appeal case. (Paragraph 43)

 

Hope it helps

 

Ben

Edited April 8, 2013 by bhall

[bhall]

It maybe of benefit for you to familiarise yourself with

 

http://www.judiciary.gov.uk/you-and-the-judiciary/going-to-court/court-of-appeal

 

"Bringing an appeal is subject to obtaining ‘permission’, which may be granted by the court below or, more usually, by the Court of Appeal itself. Applications for permission to appeal are commonly determined by a single Lord Justice, full appeals by two or three judges. The Civil Division of the Court Appeal also deals with family cases."

 

As per the above in relation to Pender at the oral hearing Lord Justice Jacob heard the application to appeal. He granted the application for appeal.

 

The appeal (limited as permission to appeal on human rights was not granted) was then heard by three lords justice.

 

Arguments were made and heard by both sides and the three lords justice passed judgements upon those arguments.

 

This is all very very clearly detailed within the 2005 case, all that needs to be done is read it -

 

 

http://www.bailii.org/ew/cases/EWCA/Civ/2005/760.html

 

In large bold letters at the top right of the page it says:

 

"ON APPEAL FROM HIGH COURT CHANCERY DIVISION" ( I am not shouting ;-) this is a direct quote)

 

The first four words of the 2005 case are "This is an appeal"

 

1. This is an appeal by Mr and Mrs Pender, the defendants in a possession action brought against them by Paragon Finance plc ("Paragon") as chargee under a Legal Charge ("the Legal Charge") dated 1 August 1989 of a freehold property at 29 Knightswood Close, Broadfields Estate, Edgeware, Middlesex HA9 8FR ("the Property").

 

 

4. The application for permission to appeal against Judge Mayer's dismissal of the application to set aside the possession order was listed before Peter Smith J, with the substantive appeal to follow were permission to be granted. Peter Smith J accordingly heard full argument. In the event, by his order dated 25 November 2003 he granted limited permission to appeal but went on to dismiss the substantive appeal.

 

5. Mr and Mrs Pender sought permission to appeal to this court against Peter Smith J's order. Permission for a second appeal was refused on paper by Arden LJ but limited permission was granted by Jacob LJ at an oral hearing on 29 July 2004.

 

Paragraphs 109-128 detail the judgements of the Court of Appeal.

 

"130. I would dismiss this appeal."

 

Paragraph 130 states that the appeal is dismissed it does not state that the application to appeal was refused, as it would do if this was an application to appeal.

 

Apple I mean no disrespect but it could not be any clearer that the 2005 case was in fact an appeal hearing and not an application to appeal. The application to appeal had already been heard and granted.

 

You have to see now that your assertion that the 2005 case was an application to appeal is incorrect.

 

To continue to argue otherwise in light of the clarity of the extracts from the 2005 case and the confirmation of the process to appeal would do you a great disservice and only create doubts in terms of the others points you have posted.

 

Good Night

 

Ben

Edited April 8, 2013 by bhall

[applecart]

Hi Ben

 

I hear you.

 

You know don't you that applications for appeal are made with a view to trying to get the original decision of a lower court overturned?

 

The Penders appeal process came unstuck.... they did not win the right to overturn the lower courts decision - that's all the decision says and stands for.......I'm conscious that courts have been persuaded to rely on its findings....but it does not change the fact that it is.... simply what it is.... the appeal courts decision to refuse the Penders the right to overturn the lower courts decision.

 

The divisional court (made up of 3 lordships) dismissed the appeal.....that is.... they denied the Penders the right to the opportunity to overturn the lower courts decision.....

 

Had the divisional court (the 3 lordships) 'allowed' the appeal....and they say 'I allow this appeal', 'I agree', 'I agree'..... then....it would be the outcome from there.... that would be of interest... and.....what you assert.....would make a lot more sense......to me... and no doubt many others....

 

Apple

[bhall]

Hello Apple

 

I am glad that you hear me and that we appear to be moving forward on this topic. However, I think we need to go just a little further to reach an outcome.

 

I have had to read your post a few times in an attempt to understand the points you are trying to make. So apologies if I have misunderstood what you are trying to imply.

 

If we look at your post

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?335240-TMB-Securitisation&p=4174739&viewfull=1#post4174739

 

You have said

 

"CASE LAW....There is:

 

United Bank of Kuwait PLC v Sahib & Ors [1996] EWCA Civ 1308 - Supreme Court....

 

In Brief......in this particular case..LORD JUSTICE PETER GIBSON was tasked with a similar issue that will face any court, when a Borrower brings a challenge where the deeds are not signed by the lender - he begins:

 

'since 1783 a deposit of title deeds relating to a property by way of security has been taken to create an equitable mortgage of that property without any writing notwithstanding section 4 of the Statute of Frauds 1677 and its successor, section 40 of the Law of Property Act 1925.

 

The main question that arises on this appeal is whether this much criticised but well established rule has survived the coming into force of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989...'

 

At page 4 (beginning) he says: 'The effect of section 2 is, therefore, that a contract for a mortgage of or charge on any interest in land or in the proceeds of sale of land can only be made in writing and only if the written document incorporates all the terms which the parties have expressly agreed and is signed by or on behalf of each party'

 

This case was not an 'application' seeking permission to appeal - this was an actual 'appeal' and is an Authority...Lower courts are bound by it.... unlike Paragon v Pender..if I am wrong as to that, then I'm more than sure others will argue the point in time....but I think not : )"

 

Ignoring for now the obvious fact that both United Bank of Kuwait PLC v Sahib & Ors [1996] EWCA Civ 1308 and section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 are both completely irrelevant to your arguments in terms of the lender signing the deed -

 

You say that United Bank of Kuwait PLC v Sahib & Ors [1996] EWCA Civ 1308 is binding upon lower courts as it was an actual appeal - which you are correct to say as the first four words of the second paragraph of the case are "this is an appeal"

 

However, despite the first four words of pender also being "this is an appeal" and despite that both cases were heard by three lord justice on appeal from the High Court in the Supreme Court of Judicature, in the Court of Appeal (Civil Division), you appear to imply that Pender unlike United Bank of Kuwait PLC isn't binding upon lower courts.

 

It should also be noted that in both United Bank of Kuwait PLC and in Pender the appeal was dismissed.

 

Despite the remarkable similarities between the procedure and outcome of the two cases, you feel one is binding and one is not.

 

Is it a coincidence that the one you feel supports a point you are trying to make, you say is binding, whereas one that does not support a point you are trying to make, you say is not binding. I am sure it is just a coincidence and nothing more

 

Lower courts have not as you say "been persuaded to rely on its findings" - unless when you say persuaded, you actually mean bound by its findings.

 

At this point can I make a recommendation that you read CPR Part 52 and Practice Direction 52, more specifically the powers of the Court of Appeal.

 

I hope that all of the above helps us to move even further forward on this topic.

 

Ben

 

This is a link to the Kuwait case so that anyone can verify what I have said above

http://www.bailii.org/ew/cases/EWCA/Civ/1996/1308.html

Edited April 9, 2013 by bhall

[bhall]

United Bank of Kuwait PLC v Sahib & Ors [1996] EWCA Civ 1308 - Supreme Court....

 

In Brief......in this particular case..LORD JUSTICE PETER GIBSON was tasked with a similar issue that will face any court, when a Borrower brings a challenge where the deeds are not signed by the lender - he begins:

 

'since 1783 a deposit of title deeds relating to a property by way of security has been taken to create an equitable mortgage of that property without any writing notwithstanding section 4 of the Statute of Frauds 1677 and its successor, section 40 of the Law of Property Act 1925.

 

The main question that arises on this appeal is whether this much criticised but well established rule has survived the coming into force of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989...'

 

At page 4 (beginning) he says: 'The effect of section 2 is, therefore, that a contract for a mortgage of or charge on any interest in land or in the proceeds of sale of land can only be made in writing and only if the written document incorporates all the terms which the parties have expressly agreed and is signed by or on behalf of each party'

 

The reason why both United Bank of Kuwait PLC v Sahib & Ors [1996] EWCA Civ 1308 and section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 are irrelevant to your argument in terms of the lender signing the mortgage deed can be found in

Eagle Star Insurance Company Ltd v Green & Anor [2001] EWCA Civ 1389 (8 August 2001)

13. Mr Green referred to some passages in the report of the Law Commission which led to the bill enacted in the 1989 Act. He referred to passages in the Law Commission Paper No.164, in particular 4.5, 4.6 and 4.8. He also referred to a number of authorities. I think the most important of these (because it was concerned with a mortgage, while the other cases he referred to concerned contracts for the sale of land) was United Bank of Kuwait Plc v Sahib [1997] Ch at 107. I have been supplied with a copy in [1996] 3 All ER 251. That is an important case. It decided that the requirements contained in section 2 of the 1989 Act to the effect that a contract for the sale or other disposition in land must be in writing in a single document incorporating all the terms and signed by the parties, abolished the rule that a mere deposit of title deeds relating to property by way of security created a mortgage or charge. Following the 1989 Act the rule had changed. There had to be a written document, not merely a deposit of title deeds by way of security in order to create a mortgage or charge.

 

14. Mr Green relied on that for the proposition that the same should apply to this case because there was, in this case, within the mortgage deed a contract by him in the form of the covenant to repay. There were also contractual provisions or covenants by Eagle Star. So, he said, if the mortgage in United Bank of Kuwait v Sahib was governed by section 2 of the 1989 Act, so should this mortgage with similar results for its enforceability.

 

15. In my judgment this argument does not stand any real prospect of success. This is not a case of a contract: it is a case of a deed. If we were simply dealing with a contract to create a mortgage then Mr Green would be right. But in this case he and Miss Challis have actually executed a deed. It is clear from the provisions of the 1989 Act itself that a distinction is drawn between the formal requirements affecting the execution of deeds and the formal requirements governing contracts. Section 1 makes alterations to the law about the execution of deeds. For example, they are no longer required to be written on any particular kind of substance and a seal is not required for the valid execution of an instrument as a deed by an individual. There are a number of detailed provisions in section 1 relating to deeds. Section 2 does not apply to deeds; it applies to contracts. It may be a contract for the sale of land, it may be a contract for some other kind of disposition of an interest in land, one other kind of disposition being a transfer by way of security over what is commonly called a mortgage or charge.

 

16. In this case, as Mr Green points out, there is no preceding contract for the creation of the mortgage in issue. He draws the conclusion from that that the contract must be in the deed. In my judgment that is a misunderstanding. A deed is a different kind of instrument from an ordinary contract; and it is not a requirement of the execution of a deed that it should comply with the requirements of section 2 of the 1989 Act. That is clear. Section 1 refers throughout to deeds, section 2 refers throughout to contracts, clearly recognising that they are two different legal concepts

 

17. In my judgment the case in United Bank of Kuwait v Sahib does not help Mr Green, because that was a case where there was no deed, unlike this case. There was in that case a purely informal equitable mortgage by deposit of title deeds. That had no effect because, as a contract, it was required to comply with section 2 and it did not comply. In my judgment His Honour Judge Jones was right to reject the submission that Mr Green made on the effect of section 2. Having referred to the point that it was unarguable, he said:

 

"Section two applies to a contract for the sale of an interest in land or a contract for some other disposition in relation to land. A contract to create a mortgage would obviously have to comply with section two and if it did not then it would not be a valid contract.

 

However, in this case there was no contract for the mortgage, there was simply the execution of the mortgage deed. That mortgage deed is a mortgage deed. It is not a contract to create a mortgage. I need really say no more than that about it."

 

18. He went on to refer to United Bank of Kuwait v Sahib, and correctly concluded that it did not assist Mr Green's case, as it was only concerned with the creation of an equitable charge and there was no deed in that case. I agree with the reasons given by His Honour Judge Jones. It follows that this point would not succeed on an appeal and therefore there is no point in my granting permission to appeal on that point.

 

Of course I could point out that where it states -

 

" A deed is a different kind of instrument from an ordinary contract; and it is not a requirement of the execution of a deed that it should comply with the requirements of section 2 of the 1989 Act."

 

The requirements he refers to, is the requirement argued by Mr Green and Applecart that a mortgage deed must be signed by the lender.

 

"In my judgment this argument does not stand any real prospect of success. This is not a case of a contract: it is a case of a deed. If we were simply dealing with a contract to create a mortgage then Mr Green would be right. But in this case he and Miss Challis have actually executed a deed."

 

But that would be pointing out the obvious

[applecart]

Hi Ben....

 

(*) Fisher and Lightwood's Law of Mortgage [2010] 13th edition, page # 41 & 42, para # 3.6 states: "... Defective legal mortgage ... A document, which for some defect or form (but which is otherwise valid), fails to take effect as a legal mortgage will, subject to what follows, will be a good equitable mortgage. The basis of this is the court's power specifically to perform a contract to create a legal interest in land. However, for an informally executed legal mortgage, made after 27th September 1989 to take effect as an equitable mortgage, it must nonetheless comply with the provisions of the Law of Property (Miscellaneous Provisions) Act 1989, s2 in relation to the formalities required for the creation of an equitable mortgage ... Moreover, as informally executed mortgages are frequently executed only by the mortgagor, this may result in many such mortgages not creating any contract and security interest at all ... To be an equitable mortgage, the instrument must comply with s.2 of the 1989; United bank of Kuwait -v- Sahib [1997] CH 107 CA. This in turn means that the document must bear the signatures of both parties. Compliance with the requirements of the Law of Property Act 1925 s53(1)a), which provides that only the signature of the person disposing of the equitable interest (i.e. the mortgagor) is insufficient ..." (*).

 

source: http://voidmortgage.socialgo.com/topic/13/fisher-and-lightwoods-law-of-mortgage

 

 

Applecart

[applecart]

Hi Ben

 

Section 2 applies to Regulated Mortgages:

 

(5)This section does not apply in relation to—

 

(a)a contract to grant such a lease as is mentioned in section 54(2) of the M1Law of Property Act 1925 (short leases);

 

(b)a contract made in the course of a public auction; or

 

©a contract regulated under the Financial Services and Markets Act 2000, other than a regulated mortgage contract;]

 

 

Which means that all the Deeds that you posted could if they relate to any Regulated Mortgage be void as non of them make space for the Lenders signature.

 

Apple

[applecart]

Reference to 'United Kuwait' as an Authority was made because it was heard in the Supreme Court.

 

Apple

[applecart]

Equitable Mortgages do not confer a legal right to possession, because LPA 1925 s.58 (1) is subjected to s.58 (2) and also s.1 (7) of the said Act.

 

Apple