Mortgage Deed - Does it need to be signed by the lender ?

[applecart]

Apple where does it actually specifically say that ?

 

You thought up this argument that the lender is required to sign the deeds and I have shown in great detail that you have attempted to spin and twist legislation and case law to support your argument. However, when we take a closer look at the legislation and case law you post, we find that it does not support your argument.

 

The fact remains that following the 2005 order there is still nothing except your posts on CAG that state the lender must sign the deed.

 

Hi Ben

 

I thought it up? ..... oh pleeeassse : )

 

Is it twisted to bring to the forum the 2005 Order that relates to the formalities in relation to execution of Deeds by Companies, Corporates and Individuals?

Is it twisted to point out how the Companies Acts are amended by the Order to show where the legislation is amended to ensure the Lender complies with s.1 (2) as well?

Is it twisted to bring to the forum 'bibby' - a recent decision that relates to Deeds - in favor of a Borrower?

Is it twisted to bring to the forum the Adjudicators decision in 'garguillo' - in favor of a Borrower?

Is it twisted to make reference to those parts of 'silver' that are in favor of a Borrower?

Is it twisted to refer to 'Chitty' 1 -115?

Is it twisted to show how it is that execution of contracts has no correlation to the execution of Deeds?

Is it twisted to debate with you what a deed in escrow is and whether it has any thing to do with the intent of LPA s.52?

Is it twisted to point out that Eagle Star was decided prior to the 2005 Order and related to unregistered land?

Is it twisted to bring to the forum the definition of 'acceptance' and 'delivery' - via 'Biby' and other sources?

Is it twisted to point out that s.2 relates to regulated mortgages from 'Fisher & Lightwood?

Is it twisted to point out Halsbury's Law - to show that a Lender must not benefit from a deed that he has not executed?

 

I could go on..... but, I don't need to...It's all here....,

 

I rather thought I was assisting the balance here.

 

The detail is on point - you do not have to agree with it - but it is fair, honest, transparent and open to put as much detail as possible - don't you think?

 

Apple

[bhall]

Hi Ben,

 

No not at all, you have taken this from an earlier post of mine - the thread is progressive (i'd like to think it is anyway)??

 

I have simply taken the amendments intended by the 2005 Order and updated the 1989 Act - to assist progress - save having to go round in circles.

 

Eagle Star was as I say, decided in 2001 - the Order came in 2005 - that decision needs to be considered in light of this.

 

Likewise, your reference to 'chitty' - again, there you need to consider what that says from 1 -115 because it is from that point that 'chitty' considers the 2005 Order.

 

It makes no sense, if you are bent on ignoring the Order does it?

 

It is your interpretation that 'clouds' that which I post Ben, I have at no point said the deed must only be signed by the Borrower - that's you who says that Ben.

 

But... like I say, discounting the Order and its relevance and the changes it made to say...the Companies Act 2006 - is not helping this discussion much - is it?

 

It is you who asserts that it is the Borrowers Deed Ben, and then interpret that on that basis, it is only the Borrower that needs to sign - read your own posts - that's essentially what your plea is - Mine is... and continues to be....The Lender must sign too since September 2005.

 

Apple

 

Apple it now my turn to say ?????

 

Of course it is the borrowers deed. It is the borrower that is granting the charge to the lender. Are you seriously implying that the Borrower is the grantee and not the grantor of the deed ?

 

If you are, you have completely misunderstand the parties to the mortgage deed.

 

I am not discounting any of the changes made to any of the acts by the 2005 order. Indeed, you will see that I have gone through and posted each and every change made by the 2005 order to the various acts, none of which states that the lender must sign the mortgage deed.

[bhall]

Hi Ben

 

I thought it up? ..... oh pleeeassse : )

 

Is it twisted to bring to the forum the 2005 Order that relates to the formalities in relation to execution of Deeds by Companies, Corporates and Individuals?

Is it twisted to point out how the Companies Acts are amended by the Order to show where the legislation is amended to ensure the Lender complies with s.1 (2) as well?

Is it twisted to bring to the forum 'bibby' - a recent decision that relates to Deeds - in favor of a Borrower?

Is it twisted to bring to the forum the Adjudicators decision in 'garguillo' - in favor of a Borrower?

Is it twisted to make reference to those parts of 'silver' that are in favor of a Borrower?

Is it twisted to refer to 'Chitty' 1 -115?

Is it twisted to show how it is that execution of contracts has no correlation to the execution of Deeds?

Is it twisted to debate with you what a deed in escrow is and whether it has any thing to do with the intent of LPA s.52?

Is it twisted to point out that Eagle Star was decided prior to the 2005 Order and related to unregistered land?

Is it twisted to bring to the forum the definition of 'acceptance' and 'delivery' - via 'Biby' and other sources?

Is it twisted to point out that s.2 relates to regulated mortgages from 'Fisher & Lightwood?

Is it twisted to point out Halsbury's Law - to show that a Lender must not benefit from a deed that he has not executed?

 

I could go on..... but, I don't need to...It's all here....,

 

I rather thought I was assisting the balance here.

 

The detail is on point - you do not have to agree with it - but it is fair, honest, transparent and open to put as much detail as possible - don't you think?

 

Apple

 

Apple

 

I think you need to take a deep breath here.

 

Look at the claims you have made about the above and my recent posts showing what they actually say rather that what you want them to mean.

 

You have not posted any case law or legislation that specifically states that the lender must sign the mortgage deed. All you have done is tell us that this is what it means.

 

I think you need to calm down, take time to collect your thoughts after reading the detailed information posted in this thread.

 

It is ok for you to be wrong, it is not the end of the world Apple. Go have a cup of tea or something and relax a little

 

Ben

Edited April 16, 2013 by bhall
typo

[bhall]

I don't want to be responsible for raising your blood pressure, so I will just stand by what I have posted on this thread and leave it to others to decide if they should heed your opinion or not.

 

The sun is shining outside, go sit in your garden and enjoy the rest of the day

 

All the best

 

Ben

[applecart]

Apple with the upmost respect there is nothing in the 2005 order, as I have shown that states the lender must sign the deed. Your reference to the companies act and execution of a deed, clearly relates to when the company grants a deed.

 

Hi Ben,

 

I don't get the impression from you that I need to teach you to suck eggs....you must be aware that a deed is not the same as a contract (you posted Eagle Star) - the formalities for a Deed are different from those required for a contract - in that, even the formalities of the legislation is clearly different.

 

The 2005 Order amends more than just the Companies Act, it also made amendments to the LPA 1925, LP(MP) Act 1989 - All the amendments are specific to the formalities in the execution of documents and Deeds....

 

lpmp s.2, lpa s.53, cca 1974 or any enactment in relation to execution of a contract is not updated by the 2005 Order - only those pieces of legislation that refer to the formalities in the execution of Deeds.

 

Apple

[applecart]

Apple

 

I think you need to take a deep breath here.

 

Look at the claims you have made about the above and my recent posts showing what they actually say rather that what you want them to mean.

 

You have not posted any case law or legislation that specifically states that the lender must sign the mortgage deed. All you have done is tell us that this is what it means.

 

I think you need to calm down, take time to collect your thoughts after reading the detailed information posted in this thread.

 

It is ok for you to be wrong, it is not the end of the world Apple. Go have a cup of tea or something and relax a little

 

Ben

 

Ditto

 

Tea.... Now, that's a good idea : )

 

You take care too - I think there is enough for readers to get there teeth into for now....

 

Apple

[bhall]

Hi Ben,

 

I don't get the impression from you that I need to teach you to suck eggs....you must be aware that a deed is not the same as a contract (you posted Eagle Star) - the formalities for a Deed are different from those required for a contract - in that, even the formalities of the legislation is clearly different.

 

At last we are getting there Apple the formalities of which you refer are that a contract as confirmed by the LP MP 1989 must be signed by both parties. However, there is no such formalities for deeds. Glad you can finally see the difference.

 

The act stipulates that for contracts -

 

"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."

 

It does not and neither do any of the changes made following the 2005 order that a deed must be signed by or on behalf of each party to the deed. Whilst you imply this is the case, it is not supported by the actual 2005 or any of the other legislation you have quoted

 

 

The 2005 Order amends more than just the Companies Act, it also made amendments to the LPA 1925, LP(MP) Act 1989 - All the amendments are specific to the formalities in the execution of documents and Deeds....

 

lpmp s.2, lpa s.53, cca 1974 or any enactment in relation to execution of a contract is not updated by the 2005 Order - only those pieces of legislation that refer to the formalities in the execution of Deeds.

 

Apple

 

Apple, if you go through my posts starting from

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?386717-Mortgage-Deed-Does-it-need-to-be-signed-by-the-lender&p=4203996&viewfull=1#post4203996

 

You can see that I have posted each and ever provision of the 2005 order. You will also see that none of the changes made by the order states as you continue to imply that the lender must sign the mortgage deed.

 

Ben

Edited April 16, 2013 by bhall

[bhall]

Ditto

 

Tea.... Now, that's a good idea : )

 

You take care too - I think there is enough for readers to get there teeth into for now....

 

Apple

 

Two sugars in mine please

[applecart]

Apple it now my turn to say ?????

 

Of course it is the borrowers deed. It is the borrower that is granting the charge to the lender. Are you seriously implying that the Borrower is the grantee and not the grantor of the deed ?

 

If you are, you have completely misunderstand the parties to the mortgage deed.

 

I am not discounting any of the changes made to any of the acts by the 2005 order. Indeed, you will see that I have gone through and posted each and every change made by the 2005 order to the various acts, none of which states that the lender must sign the mortgage deed.

 

ooops missed this one Ben.....

 

No, I am not saying or implying that the Borrower is the 'grantee' - stop that!

 

The parties to the Deed are the Grantor (Borrower) and the Grantee (Lender)

 

Can't have a mortgage deed without a Lender now can you - the Parties are both required by statute to sign the Deed...

 

The Borrower pursuant to LPMP s.1 (3)

 

The Lender pursuant to CA 2006 s.46 or as apparent depending on the type of Lender.

 

Apple

[applecart]

Two sugars in mine please

 

uuuummmmmmmm : )

 

Apple

[bhall]

ooops missed this one Ben.....

 

No, I am not saying or implying that the Borrower is the 'grantee' - stop that!

 

The parties to the Deed are the Grantor (Borrower) and the Grantee (Lender)

 

Can't have a mortgage deed without a Lender now can you - the Parties are both required by statute to sign the Deed...

 

The Borrower pursuant to LPMP s.1 (3)

 

The Lender pursuant to CA 2006 s.46 or as apparent depending on the type of Lender.

 

Apple

 

Hello Apple, I hope you enjoyed your Tea and got some time in the garden to relax and chill a little.

 

Come now Apple, you know that legislation does not stipulate that each party is required to sign the mortgage pre or post 2005.

 

How can it be a requirement of legislation when legislation does not state that ?

 

Without wishing to repeat what I have posted over and over again, don't you really think that it the intention of legislation was for all parties to sign the deed, legislation would say it as clearly as it does for contacts "must be signed by or on behalf of each party to the contract."

 

As I will presume you are aware and understand s.46 Companies Act 2006 restates section 36AA, inserted into the 1985 Act by the Regulatory Reform (Execution of Deeds and Documents) Order 2005 (SI 2005/1906).

 

This mirrors 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. However, these only apply when the lender is the grantor of a deed or there is a escrow condition stipulating that the lender must sign the deed.

 

I think you need to read the attached,

 

http://lawcommission.justice.gov.uk/docs/cp143_Execution_of_Deeds_and_Documents_Consultation.pdf

 

 

 

The above extract is taken from the Law Commission report into the execution deeds and documents by or behalf of bodies corporate.

 

Whilst you will no doubt argue that this report states the position prior to the the 2005 order, as stated in the posts starting from here

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?386717-Mortgage-Deed-Does-it-need-to-be-signed-by-the-lender&p=4203997&viewfull=1#post4203997

 

There is nothing in the 2005 order that changes that position.

 

"Hence it is common for a deed to be drawn up between two or more named parties, but with the intention that one or more of them will not execute it"

Edited April 17, 2013 by bhall

[bhall]

As shown by our exchange of posts, especially those made yesterday, we will never agree or do we need to agree that either of us are right or wrong.

 

I feel that I have shown in great detail that there are significant differences between what the legislation states and what you have implied it means.

 

I feel like a broken record posting the same responses to the same references to legislation that you post, as you continue to ignore that either pre or post 2005 legislation does not stipulate that a deed (unlike a contract) has to be signed by all parties.

 

You feel that you are right, just as much as I feel that you are wrong, just as I feel I am right just as much as you feel that I am wrong.

 

One thing remains clear that you will never accept, no matter whatever is posted that if the lender does not sign the mortgage deed it is not void. To be honest, I can live with that.

 

If you want to tell everyone from here to kingdom come, that a mortgage deed that is not signed by the lender is void, who I am to try to correct you.

 

On that note, (and I know I have said this before) I will now gracefully bow out of this debate/discussion. I feel that I have shown beyond any reasonable doubt that your argument is mistaken and I will stand by what I have posted in response to your assertions in relation to

 

The cases of kuwait and pender

The Regulatory Reform (Execution of Deeds and Documents) Order 2005

 

And everything else that you have asserted in relation to deeds and I have disagreed with.

 

For me, there is nothing more that I can say, I will leave it in the more than capable hands of the the readers of this thread to decide for themselves which of us is right and which of us is wrong.*

So I will now leave it to Apple to continue to state that a mortgage deed that has not been signed by the lender is void.

 

 

 

*Disclaimer: My absence from this discussion should not be taken or subsequently implied (by anyone) to be in any relation to a lack of confidence in the information that I have posted (on my part) or that I consider in anyway that Apple is right on this topic. I just feel this discussion has now been done to death and there is nothing more for me to say that has not already been said.

Edited April 17, 2013 by bhall

[andrew1]

That's about as graceful an exit as one could ask for Ben and for your input, thank you (as we thank Apple also).

 

One day, this will find its way infront of a judge to argue 'to death' and whichever ruling is given, however unfair it may appear to either party it won't be for the lack of discussion.

 

Not that I speak for anyone else other than myself, I hereby say thank you for contributing your knowledge on behalf of the forum readers.

 

Good luck in your other pursuits.

 

 

A1

[nomorecrooks]

That's about as graceful an exit as one could ask for Ben and for your input, thank you (as we thank Apple also).

 

One day, this will find its way infront of a judge to argue 'to death' and whichever ruling is given, however unfair it may appear to either party it won't be for the lack of discussion.

 

Not that I speak for anyone else other than myself, I hereby say thank you for contributing your knowledge on behalf of the forum readers.

 

Good luck in your other pursuits.

 

 

A1

 

 

I couldn't agree with A1 more!

 

Thank you both Ben & Apple!

[applecart]

Thanks Ben..... Thanks A1 and Nomorecrooks for your comments also : )

 

Ben invited: "So I will now leave it to Apple to continue to state that a mortgage deed that has not been signed by the lender is void"

 

So in response.....

 

In the first instance, there is no deed executed by a Borrower that does not include a 'restriction' that I am aware of....and it is fair to refer to the Borrower as the 'transferor' and the Lender as, the 'transferee'.

 

It is of note that HMLR's own TR1 Forms state at section '12' in reference to 'execution' that:

 

"The transferor must execute this transfer

as a deed using the space opposite. If

there is more than one transferor, all must

execute. Forms of execution are given in

Schedule 9 to the Land Registration

Rules 2003. If the transfer contains

transferee’s covenants or declarations or

contains an application by the transferee

(such as for a restriction), it must also be

executed by the transferee.

If there is more than one transferee and

panel 10 has been completed, each

transferee may also execute this transfer

to comply with the requirements in

section 53(1)(b) of the Law of Property

Act 1925 relating to the declaration of a

trust of land. Please refer to Land

Registry’s Public Guide 18 – Joint

property ownership and Practice Guide

24 – Private trusts of land for further

guidance."

 

So,...... not only does statute provide that the Lender must sign (albeit Ben disagrees), but, it is clear from HMLR's own Transfer form, that it must be signed by the Lender in any instance where the Lender has applied for a 'restriction' and it is clear on the face of the Borrowers Deed that a 'restriction' has been applied.

 

It would appear most untoward for HMLR to essentially say to a Lender (transferee): 'if you use our form, then you must execute the document - oh, but if you use your own, (so long as it is 'approved' by us) - then you don't have to'

 

Apple

[applecart]

Just to make it abundantly clear that a Deed signed by a Borrower implies obligations on Lenders as well and that the Lender MUST sign the Deed too:

 

There is no need for anyone to rely on what I or other posters on this thread say, or imply....when you can see for yourself......

 

Blacks Law Dictionary at page 402 - confirms that mortgages are 'conditional' - for the benefit of doubt - download a copy of Blacks Law here: http://www.scribd.com/doc/36602123/Black-s-Law-Dictionary

 

Search Blacks Law for words such as: 'Bilateral', 'Conditional' and 'Delivery' etc

 

Blacks Law advises what a 'charge' is:

 

"A charge is a devise of land with a bequest out of the subject-matter, and a charge upon the devisee personally, in respect of the estate devised, gives him an estate on condition. A condition also differs from a remainder; for, while the former may operate to defeat the estate before its natural termination, the latter cannot take effect until the completion of the preceding estate."

 

 

Apple

[bhall]

Can someone please post the email address or the telephone number for the RSPCA, Applecart is continuing to flog this dead horse.

 

It was as previously stated my intention to no longer contribute to this thread after my extensive rebuttal of the arguments previously made by Applecart in this thread and others.

 

However, after reading the last two posts, I feel compelled to respond

[bhall]

Thanks Ben..... Thanks A1 and Nomorecrooks for your comments also : )

 

Ben invited: "So I will now leave it to Apple to continue to state that a mortgage deed that has not been signed by the lender is void"

 

So in response.....

 

In the first instance, there is no deed executed by a Borrower that does not include a 'restriction' that I am aware of....and it is fair to refer to the Borrower as the 'transferor' and the Lender as, the 'transferee'.

 

It is of note that HMLR's own TR1 Forms state at section '12' in reference to 'execution' that:

 

"The transferor must execute this transfer

as a deed using the space opposite. If

there is more than one transferor, all must

execute. Forms of execution are given in

Schedule 9 to the Land Registration

Rules 2003. If the transfer contains

transferee’s covenants or declarations or

contains an application by the transferee

(such as for a restriction), it must also be

executed by the transferee.

If there is more than one transferee and

panel 10 has been completed, each

transferee may also execute this transfer

to comply with the requirements in

section 53(1)(b) of the Law of Property

Act 1925 relating to the declaration of a

trust of land. Please refer to Land

Registry’s Public Guide 18 – Joint

property ownership and Practice Guide

24 – Private trusts of land for further

guidance."

 

So,...... not only does statute provide that the Lender must sign (albeit Ben disagrees), but, it is clear from HMLR's own Transfer form, that it must be signed by the Lender in any instance where the Lender has applied for a 'restriction' and it is clear on the face of the Borrowers Deed that a 'restriction' has been applied.

 

It would appear most untoward for HMLR to essentially say to a Lender (transferee): 'if you use our form, then you must execute the document - oh, but if you use your own, (so long as it is 'approved' by us) - then you don't have to'

 

Apple

 

I am not even sure where to start with a response to this one.

 

Let's keep it nice and simple and straight forward. Apple this is the wrong form.

 

The above mentioned TR1 form as indicated by the TR reference relates to transfers, more specifically the transfer of registered property. You might want to read this guide to completing the TR1 form.

 

The borrower does not transfer the land to the Lender. The borrower grants the charge to the lender. As you know, or as least you should know the correct form, as has been previously posted is the CH1 form.

 

I would advise that you familiarise yourself with both the Land Registry Practice Guide 29 and the Land Registry Practice Guide 8

 

I draw your attention especially to section 2.2 of Practice Guide 8 which states -

 

2.2 Elements of a deed

 

To be a deed the document:

 

• must be validly executed as a deed by the person making it or one or more of the parties to it (s.1, LP(MP)A 1989).
  

(The person making the deed is the borrower.)

 

Returning now to the correct form - being the CH1 form, I will now as I have done previously refer you to section 10 -

 

 

It could not really be any clearer.

 

• "The borrower must execute this charge as a deed"
  
• "If a note of an obligation to make further advances has been applied in panel 8 this document must be signed by the lender or its conveyancer"
  

The above confirms that the lender must only sign the deed, if it includes an obligation to make a further advance, otherwise the signature of the lender is not required, as I have previously stated.

 

This is also confirmed by the numerous lenders deeds posted in this thread - only the mortgage deed which included an obligation by the lender to provide a further advance, included a space for the lender to sign.

Edited April 24, 2013 by bhall

[bhall]

Just to make it abundantly clear that a Deed signed by a Borrower implies obligations on Lenders as well and that the Lender MUST sign the Deed too:

 

There is no need for anyone to rely on what I or other posters on this thread say, or imply....when you can see for yourself......

 

Blacks Law Dictionary at page 402 - confirms that mortgages are 'conditional' - for the benefit of doubt - download a copy of Blacks Law here: http://www.scribd.com/doc/36602123/Black-s-Law-Dictionary

 

Search Blacks Law for words such as: 'Bilateral', 'Conditional' and 'Delivery' etc

 

Blacks Law advises what a 'charge' is:

 

"A charge is a devise of land with a bequest out of the subject-matter, and a charge upon the devisee personally, in respect of the estate devised, gives him an estate on condition. A condition also differs from a remainder; for, while the former may operate to defeat the estate before its natural termination, the latter cannot take effect until the completion of the preceding estate."

 

 

Apple

 

Or you could just look at what Blacks Law has to say about Deeds

 

 

"a writing signed by the grantor"

 

It does not say a writing signed by both or all parties and it does not say a writing signed by the grantor and the grantee. It merely states 'a writing signed by the grantor' - being in the case of a mortgage deed the borrower.

 

Much like your previous references to legislation and case law - what you tell us it says or what you tell us it means, appears to be very different to what it actually says.

 

So does Black's say the lender must sign the mortgage deed and without the signature of the lender the deed is void ? The straight forward answer even when you look at the explanations to the terms suggested by Applecart is no, it does not.

 

 

[andrew1]

Ben, I have a Mortgage Deed for a 1st Mortgage which has not been signed by the lender and has reference to further advances thus:

 

"3. This mortgage is made for securing further advances"

 

Executed in 1989 - Signed by my wife and I and a witness.

 

That little extract you have posted above re the CH1 form which refers to this form needing to be signed by the lender if an obligation to make F/Adv's is made, does that mean this deed needs to be signed by them too and if so, where would I stand with this if the bank had taken recovery action in your opinion?

 

Thanks

 

A1

 

P.S. Love the Sid James pic. Got his autograph when I was a kid along with Tony Hancocks at a charity cricket match!

[bhall]

Good Morning A1

 

I have always been a fan of Sid James and the old carry on films... They were harmless comedy that didn't offend anyone (at least I don't think they did).

 

It used to be his laugh that got me, very infectious. Even now just thinking about it, I can hear it in my mind and it brings a smile to my face.

 

Not such a fan of Hancock though... Not sure why... I liked Steptoe & Son etc but never went out my way to watch Hancock.

 

In terms of your deed, it would sound like it includes a clause that virtually all mortgage deeds include.

 

Unfortunately it does not state or confirm an obligation to provide a further advance, rather that the lender may provide a further advance and if it does, it will be secured by the 1st charge.

 

If you look at the posted deeds posted, you will see that only one includes such a obligation, whereas the rest include a similar clause as to your own.

 

As an example, the Nationwide mortgage deeds states-

 

"We are obliged to make further advances and application is made to the Registrar for a note to be entered on the register to that effect."

 

This requires and has a space for the lenders signature, whereas, the Leeds mortgage deed states-

 

"This Deed is made for securing (but the Society is not obliged to make) further advances"

 

This does not need and has no space for the signature of the lender.

 

Because it does not state that the Lender is obligated (has to) but that it may provide a further advance, the deed is unilateral as the obligation (performance) detailed within the deed are all in relation to the borrower. If it included an obligation by the lender to provide a further advance it would then be bilateral and need the signature of the lender.

 

If you refer to Black's as posted by Applecart and look under contracts - Bilateral and Unilateral it explains the difference.

Edited April 24, 2013 by bhall

[andrew1]

Thanks Ben, most helpful.

 

Yes Sid's laugh was a unique one for sure!

 

Have a good day.

 

A1

[applecart]

The thread is concerned with 'does the Lender have to sign the Deed'...(or words to that effect)

 

'bibby' was concerned with documents executed as Deeds - in this regard - no different from the legal requirement for a mortgage to be executed by Deed:

 

Para 42. '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'.

 

ooops did I miss this bit.........'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'

 

maybe I did......let me repeat it....'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'

 

not sure I quite got that, better read it again....and for good measure, better underline it....'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'

 

If I am to be accused of flogging a dead horse... then, I absolutely adore dead horses : )

 

Apple

[applecart]

Ben, I have a Mortgage Deed for a 1st Mortgage which has not been signed by the lender and has reference to further advances thus:

 

"3. This mortgage is made for securing further advances"

 

Executed in 1989 - Signed by my wife and I and a witness.

 

That little extract you have posted above re the CH1 form which refers to this form needing to be signed by the lender if an obligation to make F/Adv's is made, does that mean this deed needs to be signed by them too and if so, where would I stand with this if the bank had taken recovery action in your opinion?

 

Thanks

 

A1

 

P.S. Love the Sid James pic. Got his autograph when I was a kid along with Tony Hancocks at a charity cricket match!

 

I wondered why Ben had changed his photo to Sid James too..... : )

 

Anyways.....

 

Whether a Deed makes reference to a further advance or not for it's validity is not at issue - a further advance is not party to the formality of a Deed pursuant to either the LPA s.52 or the LPMP Act etc...

 

A Deed of conveyance - by its very nature is reciprocal - which means it must be seen to be a 'bilateral' document - this is to protect the Borrowers right to redeem pursuant to LPA s.85 (freeholds) or LPA s.86 (leaseholds).

 

HMLR do not say that they consider the rights or wrongs of the underlying Deed, they admit it is the Adjudicator who is concerned with such matters. HMLR administers to the Deed being in the prescribed form for registration purposes - nothing more.....

 

A document that is signed by the Borrower only is admitted herein as being 'unilateral' - such a document is therefore not 'bilateral' i.e: reciprocal - and cannot be a Deed 'executed' or 'delivered' by the Lender as required by statute for its validity to transfer any interest from the Borrower to the Lender.

 

Therefore, wherever a A unilateral deed is in evidence to show that the Lender has not 'executed' or 'delivered' the Borrowers Deed - it serves to 'clog' the Borrowers statutory right to redeem.

 

Apple

[bhall]

The thread is concerned with 'does the Lender have to sign the Deed'...(or words to that effect)

 

'bibby' was concerned with documents executed as Deeds - in this regard - no different from the legal requirement for a mortgage to be executed by Deed:

 

Para 42. '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'.

 

ooops did I miss this bit.........'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'

 

maybe I did......let me repeat it....'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'

 

not sure I quite got that, better read it again....and for good measure, better underline it....'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'

 

If I am to be accused of flogging a dead horse... then, I absolutely adore dead horses : )

 

Apple

 

Hello Apple ;-)

 

Have you read Bibby ? I mean that question with the upmost respect.

 

If you had it makes it clear why the signature was required.

 

Take another read of it, when you have the time and note the references to the obligations of Bibby.

 

As such it was a bilateral agreement with detailed obligations of both parties and as such a signature on behalf of Bibby was required.

 

Whereas, a mortgage deed that does not include any obligations for the lender is unilateral and only requires the signature of the borrower.

 

A mortgage deed that includes obligations for the lender is bilateral and also requires the signature of the lender.

 

Flog away Apple, flog away ;-)

 

Ben