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


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This is a list of some of the cases, it is worth reading. The first two are from Northern Ireland but they do serve to let us see arguments used and the views of the Court.

 

Bank of Scotland Plc v McGuigan [2012] NIch 19

 

Wellstead v Judge White & Anor [2011] IEHC 438

 

You could also read

 

Paratus AMC Ltd & Anor v Countrywide Surveyors Ltd [2011] EWHC 3307

 

In addition to the Eurosail-cases, the Southern Pacific Personal Loans case and the Pender cases, there is now also

 

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

 

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

 

 

This a case that may be of interest to anyone with a mortgage with Santander. This case does address the 'title to sue' issue, if only briefly -

 

I am out for most of the day to day but when I get home later, I will post a full list with links. They are all worth reading just to see what has already been argued, what the responses were to those arguments and to identify any mistakes made etc.

Edited by bhall

 

Yes Mark, I am Bones

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Much comment has been directed at my posts, this is a good thing...it says, this thread is on point.

 

Apple

[COLOR="red"][B][CENTER]"Errors do not cease to be errors simply because they’re ratified into law.” [/CENTER][/B][/COLOR][B][CENTER] E.A. Bucchianeri[/CENTER][/B]

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I am out for most of the day to day but when I get home later, I will post a full list with links. They are all worth reading just to see what has already been argued, what the responses were to those arguments and to identify any mistakes made etc.

 

Sorry, got home late last night and didn't have time to post

 

This is an interesting case as it deals with the borrower becoming aware as a result of a Subject Access Request and the title to sue

 

Santander UK Plc v Harrison & Anor [2013] EWHC 199 (QB) (07 February 2013 (paragraphs 40-47)

 

Santander_zps35d9d313.jpg

 

"Securitisation – the facts

 

36. It is common for banks and other lenders to assign their rights under loan agreements, including loans relating to residential property subject to mortgages, under a block discounting agreement or securitisation. The bank acknowledges that it enters into such arrangements, although it says that they do not involve any legal assignment of its right to receive payments or any alteration of its interest in the securities which it holds. The borrowers accept that the bank remains the registered holder of the legal charge over the property secured by the mortgage in this case.

 

37. The borrowers have obtained the publicly available statutory accounts for Holmes Trustees Ltd for the year ended 31 December 2009, which describe the principal activity of the company as being to hold the legal interest in certain property on trust for the beneficial owners, who are the bank and another group company called Holmes Funding Ltd. The trust property is described as a portfolio of mortgage loans secured on residential property. Not surprisingly, the accounts do not identify the individual loans comprised in the portfolio.

 

38. In (I am told) August 2010 the borrowers made a request of the bank pursuant to the Data Protection Act to be provided with information relating to them held by the bank. The bank's response, dated 21 February 2011, made clear that so far as the bank was concerned it had collated and was providing the information to which the borrowers were entitled under the Act, but was not purporting to do any more than this. The information thus provided included two items which the borrowers say are relevant. The first was a document which stated that the "lender code" for the borrowers' account was "70 Holmes Trustees Ltd". The second was two account entries dated 28 March 2007 which show the balance then outstanding of £496,119.22 first being reduced to zero and then immediately being reinstated. From this information, the borrowers infer that on this date the bank assigned their loan to Holmes Trustees Ltd.

 

39. The borrowers have also obtained a mortgage sale agreement dated 12 November 2010 between the bank as "Seller", Holmes Funding Ltd as "Funding" and Holmes Trustees Ltd as "Mortgages Trustee". This is an amended and restated version of earlier agreements going back to July 2000, and the borrowers suggest that it is therefore likely that the terms on which the bank assigned their loan to Holmes Trustees Ltd were the same or substantially similar. However, the only provision of this very detailed agreement to which I was taken in argument was clause 8.4, which provides in summary that if the bank agrees with a borrower to make what is called a "Further Advance" or a "Product Switch", it may be required to repurchase the relevant loan and its related security.

 

Securitisation – title to sue

 

40. The borrowers' argument that the matters set out above mean that the bank no longer has title to sue in this action proceeds as follows.

 

41.First, they say that there has been a legal assignment of the bank's rights under the loan agreement pursuant to section 136 of the Law of Property Act 1925. This provides:

 

"(1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice – (a) the legal right to such debt or thing in action; (b) all legal and other remedies for the same; and © the power to give a good discharge for the same …"

 

42. Second, they say that receipt of the information referred to at [38] above pursuant to their data protection request constituted express notice in writing to them of the assignment for the purpose of section 136.

 

43. Third, they acknowledge that if the loan agreement is not regulated by the Consumer Credit Act 1974 its assignment will not affect the bank's right to sue for possession and enforce the mortgage as the legal holder of the registered charge (see Paragon Finance Plc v. Pender [2005] EWCA Civ 760, [2005] 1 WLR 3412 and the old case of Morley v. Morley (1858) 25 Beav 253). However, they say that regulation under the Act makes all the difference because the effect of assigning the loan is that the assignee becomes "the creditor" under the Act and is therefore the only person who can serve the default notice which is necessary under section 87 "before the creditor or owner can become entitled, by reason of any breach by the debtor … of a regulated agreement, … to recover possession of any goods or land, or … to enforce any security".

 

44. The short answer to this argument is that, as I have already held when dealing with the capitalisation issue, the loan agreement was not an agreement regulated under the 1974 Act. However, even if the agreement were so regulated, I cannot see that the title to sue issue could make any difference to the outcome of this action. Since the bank accepts that no default notice complying with the Act was served on the borrowers by anyone, the claim would fail if the agreement were regulated under the Act regardless of whether the bank or an assignee has title to sue. For this reason, I refuse permission to appeal on this issue.

 

45. It is therefore unnecessary to examine further the three steps in the borrowers' argument set out above. I would, however, add two further observations.

 

46. The first is that even on the assumption that there was an "absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only)" of the bank's rights under the loan agreement, I am not persuaded that information which was only discovered pursuant to a data protection request is capable of constituting notice of an assignment for the purpose of section 136 of the Law of Property Act. Notwithstanding the decision of the Court of Appeal in Van Lynn Developments Ltd v. Pelias Construction Co Ltd [1968] 1 QB 607, by which of course I am bound, that no particular formality is required for notice of assignment to be given so long as the notice makes it plain that there has in fact been an assignment, I would not regard information provided in this way as constituting "express notice in writing … given to the debtor" when in fact the person providing the information which is said to constitute such notice makes clear that it is doing nothing more than providing information to which the recipient is entitled pursuant to a data protection request. On any view, however, the information provided in this case does not satisfy the Van Lynn test because it does not make plain that there has been an absolute assignment of the loan agreement. That is merely an inference which the borrowers draw, which may possibly be correct, but is not a matter of which they have been given notice.

 

47. The second is that I should not be taken to accept the borrowers' submission that in the case of a legal assignment only the assignee can serve the default notice required under section 87 of the Act. I would accept, in respectful agreement with the analysis of Hamblen J in Jones v. Link Financial Ltd [2012] EWHC 2402 (QB), that when notice of a legal assignment has been given, it is the assignee to whom the debtor is thenceforth liable for the debt and that the assignee can only enforce the debt if the applicable statutory duties laid down in the Act have been performed. However, I would at least wish to leave open whether such an assignee would be able to rely on notices served or information provided by the assignor. Moreover, in a case such as the present (but unlike Jones v. Link Financial Ltd) where it is the assignor who remains entitled to enforce the mortgage as the legal holder of the registered charge, there would appear to be every reason why the assignor should also be the person to serve any default notice."

Edited by bhall

 

Yes Mark, I am Bones

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Whilst it is a Northern Irish case, it demonstrates the arguments being used

 

Bank of Scotland Plc v McGuigan [2012] NICh 19 (19 June 2012) (paragraph 11)

 

BOS_zps91cbadcf.jpg

 

"[11] As regards the substantive appeal, the Plaintiff has discharged its burden of establishing on the balance of probabilities that it is entitled to the relief sought in the originating summons. All of the necessary proofs are in order. I find specifically that the Plaintiff has at no time divested itself of the charge. The Plaintiff has proved to the requisite standard that it is the registered owner of the 2007 charge and, further, that this instrument suffers from no legal infirmity. I reject the various wild, speculative and increasingly bizarre claims and assertions made by the Defendant. The order of the Master is affirmed and the appeal is dismissed."

Edited by bhall

 

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Whilst it is another Northern Irish case, it demonstrates the arguments being used

 

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

 

Wellstead_zps096c2206.jpg

 

"But there is another obstacle which faces the applicant, and which he has not addressed, and it is that there is nothing unusual or mysterious about a securitisation scheme. It happens all the time so that a bank can give itself added liquidity. It is typical of such securitisation schemes that the original lender will retain under the scheme, by agreement with the transferee, the obligation to enforce the security and account to the transferee in due course upon recovery from the mortgagors."

Edited by bhall

 

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This case discusses the consequences of securitisation

 

Paratus AMC Ltd & Anor v Countrywide Surveyors Ltd [2011] EWHC 3307 (Ch) (14 December 2011) (paragraph 59)

 

 

Practus_zps70bb1141.jpg

 

"The Consequences of the Securitisation

 

59. GMAC's method of financing its mortgage-lending business was broadly as follows. Initially it would fund the loans with the use of funds from the money markets. From time to time it would package a bundle of its mortgages into a portfolio and, though retaining legal title to them, transfer them in equity to a limited company. That company was a special purpose vehicle ("SPV"): it had no business other than in respect of the transfer and had been established by GMAC specifically for the purpose of the transaction. The financial positions represented by the portfolio of mortgages were in turn transferred by the SPV to investors by the issue of notes. The reason for the use of SPVs is that the credit-rating of the notes will then depend on the quality of the financial positions themselves rather than on that of the original mortgage lender. The issue proceeds of the notes were used by the SPV—in this instance, RMAC—to pay GMAC the price of the portfolio. The investors would assume the risks under the financial positions and would obtain their return from the income-stream generated by those positions (i.e. the moneys paid by the mortgagors or the proceeds of sale of the mortgaged properties). This use of asset-backed securities is variously known as repackaging or securitisation. A fine discussion of this form of financing is to be found in chapter 18 of Dr Joanna Benjamin's Financial Law (2007)."

Edited by bhall

 

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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)

 

These two cases are interesting as the Appellant in the 2009 case was the Lender (Southern Pacific Personal Loans) and in the subsequent 2010 case, the Appellant was the SPV (Southern Pacific Securities 05-2 Plc

Edited by bhall

 

Yes Mark, I am Bones

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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)

 

These two cases are interesting as the Appellant in the 2009 case was the Lender (Southern Pacific Personal Loans) and in the subsequent 2010 case, the Appellant was the SPV (Southern Pacific Securities 05-2 Plc

 

@bhall: al of these are interesting. Thank you for posting the links!

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After reading through some of the threads about this topic, I thought it would be advisable to preempt another mistaken argument that has been repeatedly posted in relation to s.2 of the Law of Property (Miscellaneous Provisions) Act 1994.

 

The general gist of that argument is:

 

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

 

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

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

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

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

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

 

As Applecart has stated above the above argument is based upon the LP (MP) Act 1994 s. 2 (3) (a)

 

which states -

 

sub3_zps1f34da50.jpg

 

Apple argues that (3) a means -

The LP (MP) Act 1994 s. 2 (3) (a) provides that the sale/disposition conveyed between Accord and the SPV would be of the whole of the interest that Accord had in the Borrowers land - both legal and equitiable....(registered land).

 

However, yet again what we are told it means and what it actually says are different, in a similar vain to the my recent posts in this thread.

 

If we look at the actual legislation, we can see a very important point that Apple has over looked.

 

sub4_zpsbd86e9bf.jpg

 

"the following presumptions apply, subject to the terms of the instrument"

 

So s.2 (3) (a) applies subject to the terms of the instrument. Therefore, if the terms of the instrument say that disposition is not of the whole interest, the terms of the instrument take precedence over s.2 (3) (a).

 

So, what does the instrument say ? Apple has referred to Accord so to be fair I consider we should look at the Accord Mortgage Sale Agreement (the instrument)

 

Yes Mark, I am Bones

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In the Paragon V Pender thread a link to the Mortgage Sale Agreement for Accord has been posted.

 

So lets take a look at the instrument and see what it has to say in regard to the disposition.

 

msa1_zpse748076a.jpg

 

"with effect from the Closing Date relating to that Loan and its Related Security legal title to each Loan and its Related Security in the Portfolio shall be vested in the Seller and sole beneficial interest in the Issuer"

 

So the instrument confirms that the legal title will remain with the Seller (Accord Mortgages) and the sole beneficial title will be vested in the Issuer (Brass No.1 Plc (the SPV) ).

 

As confirmed previously the terms of this instrument take precedence over the assertion made by Apple.

 

Yes Mark, I am Bones

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msa2_zpsc272703a.jpg

 

In conjunction with the previous extract from the Mortgage Sale Agreement the above confirms that the Seller will retain the Legal Title until the transfer is perfected by registration.

 

This naturally makes perfect sense as s.27 of the Land Registration Act 2002 states -

 

lra_zps97f1d94b.jpg

 

lra2_zps5a6704bc.jpg

 

Yes Mark, I am Bones

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To conclude

 

The LP (MP) Act 1994 s. 2 (3) (a) provides that the sale/disposition conveyed between Accord and the SPV would be of the whole of the interest that Accord had in the Borrowers land - both legal and equitiable....(registered land)..

 

Contrary to the above statement, it does no such thing as it is subject to the terms of the instrument.

 

Yes Mark, I am Bones

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Does this mean that when I signed the Deeds that what's written on them always the Lender to do what they want?without notifying you of any changes?I've a copy of the Deeds of my property and it's printed with the company who the mortgage is with but since then they've changed their name and back in 2011 they did go in and change something on the title deeds.The copy I have does not have a signature.When the mortgage was taken out in 2007.

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This case could reasonably be considerd to be the authority on this matter.

 

In response to the question posed by this thread the answer is no.

 

I would like to agree with you as I'm sure many others would too... but, without due consideration of the actual changes made by the 2005 Order, it would be difficult to do so.

 

The case you refer to was concluded before the 2005 Order came into force to amend the formalities of valid execution of Deeds and Documents.

 

OLD s.1 (2) LP(MP)Act 1989:

 

(2)An instrument shall not be a deed unless—

(a)it makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise); and

(b)it is validly executed as a deed by that person or, as the case may be, one or more of those parties.

 

The 2005 Orders intent and purpose extends s. 1 (2) to:

 

(2) An instrument shall not be a deed unless—

(a)it makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise); and

(b) it is validly executed as a deed;

“(i) by that person or a person authorised to execute it in the name or on behalf of that person, or

(ii) by one or more of those parties or a person authorised to execute it in the name or on behalf of one or more of those parties.”.

 

(2A) For the purposes of subsection (2)(a) above, an instrument shall not be taken to make it clear on its face that it is intended to be a deed merely because it is executed under seal.”

 

s 1 (2) relates to the formalities of the 'execution' (i.e - the parties who are required to sign) of a Deed -

 

Similar to a contract, the Mortgage Deed sets out who the 'parties' to the Deed are - the Borrower is a 'party' - the Lender is also a 'party'.

 

It cannot be said that the Lender is not an intended 'party' to the Deed.

 

If it is to be accepted that there is no requirement for the Lender to sign, then CA 2006 s.46 and other legislation relating to the formality of execution of Documents and Deeds could have remained silent - but since the 2005 Order, they are visible and in force to make it a legal duty for a Lender to comply with s.1 (2)(b) - to execute the Deed.

 

Sections 43 and 45 to 47 relate to the "formalities of doing business under the law of England and Wales or Northern Ireland" (Companies Act 2006) - CA 2006 s. 46 does not say 'does not apply to a mortgage deed between the Borrower and Lender' - it applies to any type of document that purports to be a Deed:

 

"46Execution of deeds

 

(1)A document is validly executed by a company as a deed for the purposes of section 1(2)(b) of the Law of Property (Miscellaneous Provisions) Act 1989 (c. 34) and for the purposes of the law of Northern Ireland if, and only if—

(a)it is duly executed by the company, and

(b)it is delivered as a deed.

(2)For the purposes of subsection (1)(b) a document is presumed to be delivered upon its being executed, unless a contrary intention is proved."

 

*Please note: 'it is duly executed by the company' before the Lender can rely that the Deed is valid and complies on his part with s 1 (2) LPMP Act 1989.

 

It is only if the Lender HAS first executed (signed) the Deed that the presumption of 'delivery' comes into effect unless a contrary intention is proved.

 

**The FACT remains - non of the Deeds posted herein or elsewhere for that matter show 'execution' by a Lender.

 

Since September 2005 - we cannot make any presumption that Eagle Star is an authority on the matter. we can no longer 'presume' execution - either it is there or it isn't.....!!

 

The presumption of Delivery occurs AFTER execution,

 

The 2005 Order 'Introductory Text":

 

"(g)the Lord Chancellor is of the opinion that this Order does not remove any necessary protection or prevent any person from continuing to exercise any right or freedom which he might reasonably expect to continue to exercise"

 

The Introductory Text of the 2005 Order goes on to say:

 

"(h)this Order creates burdens affecting persons in the carrying on of certain activities, and the Lord Chancellor is of the opinion that—

(i)the provisions of this Order, taken as a whole, strike a fair balance between the public interest and the interests of the persons affected by the burdens being created, and

(ii)the extent to which this Order removes or reduces one or more burdens, or has other beneficial effects for persons affected by the burdens imposed by the existing law, makes it desirable for this Order to be made; "

 

'Bibby', and the Adjudicators decision in 'garguillo' are cases that relate to the formality in relation to Deeds and were decided after the 2005 Order came into force.

 

Please correct me if you deem me to be wrong, but, since the 2005 Order....This is why, since September 2005, all Lenders must sign the deed too.

 

Apple

 

(Capital letters are used for 'emphasis' - not to 'shout')

[COLOR="red"][B][CENTER]"Errors do not cease to be errors simply because they’re ratified into law.” [/CENTER][/B][/COLOR][B][CENTER] E.A. Bucchianeri[/CENTER][/B]

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To conclude

 

 

 

Contrary to the above statement, it does no such thing as it is subject to the terms of the instrument.

 

?????

 

Apple

[COLOR="red"][B][CENTER]"Errors do not cease to be errors simply because they’re ratified into law.” [/CENTER][/B][/COLOR][B][CENTER] E.A. Bucchianeri[/CENTER][/B]

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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.

 

Yes Mark, I am Bones

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Does this mean that when I signed the Deeds that what's written on them always the Lender to do what they want?without notifying you of any changes?I've a copy of the Deeds of my property and it's printed with the company who the mortgage is with but since then they've changed their name and back in 2011 they did go in and change something on the title deeds.The copy I have does not have a signature.When the mortgage was taken out in 2007.

 

Good Morning Angel

 

I think the best thing to do is start a thread dedicated to your situation as this thread is more intended for general discussion.

 

When you say that your lender changed their name, do you mean that it is still the same company (with the same registration number) but a different name or a new company.

 

Thanks

 

Ben

 

Yes Mark, I am Bones

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Please correct me if you deem me to be wrong, but, since the 2005 Order....This is why, since September 2005, all Lenders must sign the deed too.

 

Apple

 

(Capital letters are used for 'emphasis' - not to 'shout')

 

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.

Edited by bhall

 

Yes Mark, I am Bones

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The 2005 Orders intent and purpose extends s. 1 (2) to:

 

(2) An instrument shall not be a deed unless—

(a)it makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise);and

(b) it is validly executed as a deed;

“(i) by that person or a person authorised to execute it in the name or on behalf of that person, or

(ii) by one or more of those parties or a person authorised to execute it in the name or on behalf of one or more of those parties.”.

 

Apple, even your own posts disprove your own argument.

 

From your above post-

 

An instrument shall not be a deed unless it makes it clear on its face that it is intended to be a deed by the person making it and it is validly executed as a deed by that person.

 

The person making the deed is the borrower, your own post confirms that it is the person making the deed must execute it to be valid. Even your own post doesn't say it must also be signed by the grantee.

Edited by bhall

 

Yes Mark, I am Bones

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As I said before

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?386717-Mortgage-Deed-Does-it-need-to-be-signed-by-the-lender&p=4204007&viewfull=1#post4204007

 

 

If you are so sure about the basis of your opinion that a mortgage deed that has not been signed by the lender is void, why don't you request a copy of your own mortgage deed and as you have suggested to others

 

"Originally Posted by applecart viewpost-right.png Once you have a copy of your mortgage deeds and you are as sure as you can be that your lender has not signed the deed, this link is to the application form required to be completed if you decide to go direct to the Adjudicator at HMLR..:

http://www.justice.gov.uk/downloads/...rDocuments.pdf

Hope this helps?

Applecart"

 

 

 

 

Then you can report back on CAG if you was successful.

 

I wish you the best of luck in your future endeavors. However, before you recommend or suggest a course of action, such as you have in relation to mortgage deeds, you should really ensure that the argument is tried and tested before you portray it as a matter of fact or as a matter of law rather than just your own untested personal opinion.

 

I hope that my posts have been of assistance to you and others.

 

Yes Mark, I am Bones

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Apple, even your own posts disprove your own argument.

 

From your above post-

 

An instrument shall not be a deed unless it makes it clear on its face that it is intended to be a deed by the person making it and it is validly executed as a deed by that person.

 

The person making the deed is the borrower, your own post confirms that it is the person making the deed must execute it to be valid. Even your own post doesn't say it must also be signed by the grantee.

 

 

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

[COLOR="red"][B][CENTER]"Errors do not cease to be errors simply because they’re ratified into law.” [/CENTER][/B][/COLOR][B][CENTER] E.A. Bucchianeri[/CENTER][/B]

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This is becoming typical isn't it?

 

Ben, you wanted a discussion, you have one - we do not have to agree.

 

Apple

[COLOR="red"][B][CENTER]"Errors do not cease to be errors simply because they’re ratified into law.” [/CENTER][/B][/COLOR][B][CENTER] E.A. Bucchianeri[/CENTER][/B]

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The 2005 Orders intent and purpose extends s. 1 (2) to:

 

(2) An instrument shall not be a deed unless—

(a)it makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise);and

(b) it is validly executed as a deed;

“(i) by that person or a person authorised to execute it in the name or on behalf of that person, or

(ii) by one or more of those parties or a person authorised to execute it in the name or on behalf of one or more of those parties.”.

 

Apple, even your own posts disprove your own argument.

 

From your above post-

 

An instrument shall not be a deed unless it makes it clear on its face that it is intended to be a deed by the person making it and it is validly executed as a deed by that person.

 

The person making the deed is the borrower, your own post confirms that it is the person making the deed must execute it to be valid. Even your own post doesn't say it must also be signed by the grantee.

 

 

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)??

 

Hello Apple

 

You are correct it was taken from an earlier post of yours, as in a post you made a couple of hours ago, earlier today

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?386717-Mortgage-Deed-Does-it-need-to-be-signed-by-the-lender&p=4206633&viewfull=1#post4206633

 

I would like to agree with you as I'm sure many others would too... but, without due consideration of the actual changes made by the 2005 Order, it would be difficult to do so.

 

The case you refer to was concluded before the 2005 Order came into force to amend the formalities of valid execution of Deeds and Documents.

 

OLD s.1 (2) LP(MP)Act 1989:

 

(2)An instrument shall not be a deed unless—

(a)it makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise); and

(b)it is validly executed as a deed by that person or, as the case may be, one or more of those parties.

 

The 2005 Orders intent and purpose extends s. 1 (2) to:

 

(2) An instrument shall not be a deed unless—

(a)it makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise); and

(b) it is validly executed as a deed;

“(i) by that person or a person authorised to execute it in the name or on behalf of that person, or

(ii) by one or more of those parties or a person authorised to execute it in the name or on behalf of one or more of those parties.”.

 

(2A) For the purposes of subsection (2)(a) above, an instrument shall not be taken to make it clear on its face that it is intended to be a deed merely because it is executed under seal.”

 

s 1 (2) relates to the formalities of the 'execution' (i.e - the parties who are required to sign) of a Deed -

 

Similar to a contract, the Mortgage Deed sets out who the 'parties' to the Deed are - the Borrower is a 'party' - the Lender is also a 'party'.

 

It cannot be said that the Lender is not an intended 'party' to the Deed.

 

If it is to be accepted that there is no requirement for the Lender to sign, then CA 2006 s.46 and other legislation relating to the formality of execution of Documents and Deeds could have remained silent - but since the 2005 Order, they are visible and in force to make it a legal duty for a Lender to comply with s.1 (2)(b) - to execute the Deed.

 

Sections 43 and 45 to 47 relate to the "formalities of doing business under the law of England and Wales or Northern Ireland" (Companies Act 2006) - CA 2006 s. 46 does not say 'does not apply to a mortgage deed between the Borrower and Lender' - it applies to any type of document that purports to be a Deed:

 

"46Execution of deeds

 

(1)A document is validly executed by a company as a deed for the purposes of section 1(2)(b) of the Law of Property (Miscellaneous Provisions) Act 1989 (c. 34) and for the purposes of the law of Northern Ireland if, and only if—

(a)it is duly executed by the company, and

(b)it is delivered as a deed.

(2)For the purposes of subsection (1)(b) a document is presumed to be delivered upon its being executed, unless a contrary intention is proved."

 

*Please note: 'it is duly executed by the company' before the Lender can rely that the Deed is valid and complies on his part with s 1 (2) LPMP Act 1989.

 

It is only if the Lender HAS first executed (signed) the Deed that the presumption of 'delivery' comes into effect unless a contrary intention is proved.

 

**The FACT remains - non of the Deeds posted herein or elsewhere for that matter show 'execution' by a Lender.

 

Since September 2005 - we cannot make any presumption that Eagle Star is an authority on the matter. we can no longer 'presume' execution - either it is there or it isn't.....!!

 

The presumption of Delivery occurs AFTER execution,

 

The 2005 Order 'Introductory Text":

 

"(g)the Lord Chancellor is of the opinion that this Order does not remove any necessary protection or prevent any person from continuing to exercise any right or freedom which he might reasonably expect to continue to exercise"

 

The Introductory Text of the 2005 Order goes on to say:

 

"(h)this Order creates burdens affecting persons in the carrying on of certain activities, and the Lord Chancellor is of the opinion that—

(i)the provisions of this Order, taken as a whole, strike a fair balance between the public interest and the interests of the persons affected by the burdens being created, and

(ii)the extent to which this Order removes or reduces one or more burdens, or has other beneficial effects for persons affected by the burdens imposed by the existing law, makes it desirable for this Order to be made; "

 

'Bibby', and the Adjudicators decision in 'garguillo' are cases that relate to the formality in relation to Deeds and were decided after the 2005 Order came into force.

 

Please correct me if you deem me to be wrong, but, since the 2005 Order....This is why, since September 2005, all Lenders must sign the deed too.

 

Apple

 

(Capital letters are used for 'emphasis' - not to 'shout')

 

Yes Mark, I am Bones

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