Repossession questioned by deeds not being signed

applecart · June 24, 2013

Hi Is It Me

It is worth mentioning that the mortgage offer - acts as the 'simple contract' - offer - consideration - acceptance - and that section 2 LP(MP) Act applies to it - along with the statute of frauds Act 1677....

But I would keep this brief tomorrow - because you are asking the Judge for time to outline your case in full before a High Court Judge (not a chancery) or the Adjudicator... when these issues can be addressed more fully

Apple

IS IT ME? · June 24, 2013

Thank you for your time once again for your time and lets see what happens today.

regards

sequenci · June 25, 2013

Hello there. How did it go?

IS IT ME? · June 25, 2013

well, All I can say at this time is that without the help and knowledge of applecart like people have said we would have been up s**t street.

They never came with any paperwork as asked

All that was said ' is our clients say this and that ' but they have no one again who would put their name to it, so they now have to come back with paperwork with regard to the sale and have it signed by a director.

So we will see.

I would ask apple for help in put a list together of the grounds and cases which we have relied on.

So thats it they have had a poke in the eye!

applecart · June 26, 2013

Hi Is It Me - WELL DONE!!!

Are you sure you still need me though - You are the one doing all the work - it takes a lot to stand your ground in court and remain focused too - not to mention - having to remember the info posted ..... You are doing a sterling job : )

When you say 'put a list together and the grounds and cases which we have relied on' - can you explain a wee bit more how I can be of further assistance to you?

Apple

applecart · June 26, 2013

Hi Is It Me

Be sure to put forward evidence of who the companies Directors are said to be - Companies House will have this info

How will this assist? - well if an affidavit arrives purporting to be that of one of the lenders directors - and it is found that it does not tally with the info held at Companies House - then, they will be simply creating more hurdles for themselves (IMO)

Apple

IS IT ME? · June 27, 2013

Yes I agree but they where to get one of them to sign it last time but they never did up set the d/j big time.

Will wait until the order comes then ask if I may.

applecart · June 28, 2013

Hang on a wee bit.... did you actually say...

"All that was said ' is our clients say this and that ' but they have no one again who would put their name to it, so they now have to come back with paperwork with regard to the sale and have it signed by a director."

Previously, I was led to understand that they were to sign an affidavit confirming they owned the mortgage - they clearly failed on that one...and have dare I say 'side stepped' that issue.....Don't forget that no Director complied with the Order of the court on this issue

Now... the Judge wants to see a Directors signature on a sale document....???

The mind boggles here..., why would the Judge now insist on a signature on the sale docs? Does he truly believe that a lender who cannot get a Director to confirm they own the mortgage is actually going to admit to having sold it????

Be mindful - if the lender has not admitted to selling the mortgage and then as will likely be the case (no signed affidavit - told you they would not risk perjury) - will not admit to having sold it... you need to be prepared......

It may be that the Judge is looking to find that if the mortgage is not admitted as being owned - but also not admitted as being sold - then on a balance on probability - that he will look to HMLR and the registered title of the lender as 'conclusive' proof....

You will need to explain to the Judge that the sale documents in evidence are 'conformed' copies....and the copies with the actual signatures of all the parties to the sale - will be held by the trusts Holding Company....(check the prospectus for detail of who the trust holding company actually is) the Judge can rely that the conformed copies are widely accepted practice

You may need to rely instead on the Companies (SPV's) financial statements that will assist you confirm that the amount stated in the sale agreement was paid to the Lender in relation to the conformed copies of the sales documents in evidence

Might be worth spending the pound and getting a copy of the SPV's financial statement relevant to the time the sale took place....

You cannot allow this time to go without you continually preparing for the intent and objective of the SPV - which is to cause the Judge to revert to relying on section 58 as conclusive in their misconceived belief of possession of your friends home in their favor....Do not sit back and assume that you are home and dry - you are not there yet.... you must do the necessary groundwork... there is no easy route...

Apple

applecart · June 28, 2013

Yes I agree but they where to get one of them to sign it last time but they never did up set the d/j big time.
Will wait until the order comes then ask if I may.

Most Judges do make notes - so that if they are not at the next hearing - the judge in attendance will pick up on the Judges anger at the Lender...Let's hope this is the case....

Don't simply sit back - consider my post above... there is more to do to cover potential pitfalls ....Try to stay ahead of the 'game' and remain focused - ok

Apple

applecart · June 28, 2013

It is Me

Can you acknowledge my post #105 please - I want to know what list you need me to put together?

Apple

IS IT ME? · June 28, 2013

hi Apple

sorry been away,

Yes they where asked to get an officer of the company to sign the statement of truth but all they got was a case worker.

They have admitted in this statement that they have sold the mortgage on.

I shall get copies of the SPV account and mortgage charge??

also the accounts of the lender with also 2 mortgage charges?? for the date in question.

I will get back to you over the weekend if I may

applecart · June 28, 2013

hi Apple
sorry been away,

Yes they where asked to get an officer of the company to sign the statement of truth but all they got was a case worker.

They have admitted in this statement that they have sold the mortgage on.

I shall get copies of the SPV account and mortgage charge??

also the accounts of the lender with also 2 mortgage charges?? for the date in question.

I will get back to you over the weekend if I may

Hi Is It Me...glad your back : )

It appears that the Judge is not happy that a case worker has admitted the sale of the mortgage - after all.... it is the case workers affidavit and statement of truth - not a Director of the company....it would seem the Judge does not find anything within it reliable.... especially when the affidavit will appear to be in conflict with the Companies name still being on the registered title held at HMLR....

I found that a link to all the mortgage account numbers party to a pool of mortgages for sale was contained at the back of the prospectus in the 'Appendix'....I'm not sure with Accord, if they will have done the same.... it was easier then to spot your mortgage account number...link it to the date of the sale... and the financial records that way... hopefully this approach will work for you too.....- there will be no way then, that they can say, your mortgage was not party to the said sale....

I should be around at some point over the weekend and will check for your next posting....

Apple

IS IT ME? · June 30, 2013

Hi Apple,

Had a day at the beach reading paperwork and it confirms that they have tied them selves up in knots with the sale and deed all saying some thing against one another.

But that's another matter as again I have to wait to see what paperwork they send him.

The list I have been asked to do is the

grounds on which the appeal is made( I have done this under them not owning the mortgage and the deed being void.)

They solicitor would (or would not ) understand how I could make this claim as the deed was reg at the LR as shown and as you say that is what they are relying on.

hen when the judge asked what grounds this was based on I went though the run down of the notes for the Adjudicator which you kindly did but again their agent did not understand or had any knowledge of them and said I don't have these, I said they where given at the last hearing?? were the d/j agreed and said that's up to you as they were given to the last agent.

That's been their game all a long.

This is with your help some thing which will open up a can of worms which will have a very very big impact on the whole system.

And may help more than just him.

I just wonder why every one is saying rates are going up and up yet we are not even out of the s***t yet?

bhall · June 30, 2013

Whilst I anticipate that my input will not be welcome, especially by the OP, I would like to add a word of caution - think of it as an argument that you may face that you can consider now, before you return to court.

A Barrister does nothing wrong in reminding any DJ or HCJ that 'the title register is conclusive'... What you need to be aware of is ......the Title Register is Conclusive.....this is so regardless of how it got there...regardless of whether the lender has since sold on his interest or not....regardless of whether you can prove the sale or not....... (they will not be flouting the Law in saying this - because, that is exactly what the Law says....it will seem to you that they are flouting the Law against the evidence...but they are not...let me repeat...it is what the law says....so be mindful..ok) Likewise, the fact that you can prove the lender has sold the mortgage is not at issue - the issue is the Title Register.... so long as the Lenders name is on the Title....He has a right to possession in the eyes of the Law....

For whilst you and I both recognise that the sale is a means for lenders to make loads of quick money - it is a fact that UNLESS you can evidence that the Deed is void - you will always be met with the same circular contention in any court of law - that the title register is conclusive .....including in a court of Appeal.....

To follow on from what Apple has said above and being something I for once agree with her about, I would just say be aware and be prepared that the Mortgage Sale Agreement for Accord states -

6.2 For the avoidance of doubt, prior to the completion of the assignment, assignation, or transfer (as appropriate) of any Loan and its Related Security to the Issuer pursuant to Clause 6.1 , 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 title and interest shall be vested in the Issuer. Prior to perfection of the transfer of the legal title to Loans and their Related Security pursuant to this Clause 6, the Seller undertakes (to the extent that any of the following is vested in it) to hold all right, title, interest and benefit (both present and future) in and under (a) the Loans and their Related Security, following the acquisition of such Loans and their Related Security by the Issuer and (b) any sums that are or may become due in respect thereof, on trust for the Issuer (excluding from such trust any Loans which have been repurchased by the Seller).

6.3 Perfection of the transfer, assignation and assignment in accordance with Clause 6.1 of:(a) the English Mortgages in the Portfolio shall be effected by means of a transfer in the form of the relevant Land Registry Transfer set out in Schedule 2 (Register of Transfers);

This relates to the information posted by Apple in regard to the lenders name being on the register

Edited June 30, 2013 by bhall

bhall · June 30, 2013

Whilst I won't repeat my arguments here in relation to why I consider Apple's arguments that the mortgage deed is void by lack of the signature of the lender to be based on a misunderstanding of the implications of the changes made to the applicable legislation, I would like to add one more caution - please think of it again as a chance to consider the potential argument now, before you return to Court.- this will give you time to prepare counter arguments

In all the cases about securitisation, such as paragon v pender 2003 2005, Bank of Scotland Plc v McGuigan, Wellstead -v- Judge White & Anon, Santander UK Plc v Harrison etc etc, it was never disputed and accepted that a sale took place.

Rather it was that the sale was left uncompleted, in that the transfer was not perfected by registration.

You should also make yourself familiar with the findings of Paratus AMC Ltd & Anor v Countrywide Surveyors Ltd [2011], Southern Pacific Personal Loans Ltd v Walker & Anor [2009], Southern Pacific Securities 05-2 Plc v Walker & Anor [2010]

Closer inspection of the last two cases will show that the first involved the lender (SPPL) and the second involved the SPV (SPS 05-2) - notices of the change of ownership were provided to SPPL borrowers and the land registry was also updated to reflect the change from SPPL to SPS 05-02

bhall · June 30, 2013

The statement of truth is signed by a case executive(?) and are in accordance with my instructions from the claimant and goes on to say about the deed and Law of property Act 1989 and that under sec2 (a) and (b) and as it is signed by the borrowers and witnessed and also clearly states ' mortgage deed' it complies with the formalities for the execution of deeds laid down under the act.
They also state that there is no requirement for the deed to be executed by the lender as the deed is not a simple contract requiring an offer, acceptance, consideration and an intention to create legal relations (then what is??)

As the only ones having obligations under this deed are the borrowers it is therefore not necessary for the lenders to sign the deed and therefore the deed is validly executed.

This is I am afraid to say correct and a true reflection of current legislation - being s.1 and not s.2 and it should be noted it is exactly the same points as I have posted in the thread created to discuss if a mortgage deed is required to be signed by the lender (which it clearly isn't).

Whilst on the face of it, Apples arguments may sound and appear to be based on legislation and it is understandable that someone in your friends situation wants and needs Apple to be right - remember that there are different opinions to those of Apple which should be considered carefully as it has been shown above those other opinions closely reflect those arguments that you have and may in the future face in Court.

As they say, forewarned is forearmed

But the deed signed by the company which is executed the company for the sale agreement has been done by common seal

Any thoughts??

The Mortgage Sale Agreement, actually includes a number of different deeds. You should note that some of deeds contained within that document are only to be signed by one party and not the other. An example of which includes the Deed of Power of Attorney.

This may be an area in which you would like to look into further.

Edited June 30, 2013 by bhall

applecart · June 30, 2013

Hi Apple,
Had a day at the beach reading paperwork and it confirms that they have tied them selves up in knots with the sale and deed all saying some thing against one another.

It's important to relax, but, glad to see your remained focused : )

Yes, the sale will be promoted by the lender as the sale of the 'beneficial interest' - with the intent that the Judge be misguided into believing that the Legal interest remains with the lender.... on sight of the title remaining registered in the name of the original lender......But.... the Trustee Delegation Act... makes it clear that there is no such 'technicality' of error in relation to land... it will be both the Legal and Beneficial interest that has been sold....it is the registered title that is at land registry that you need to be sure is where the Judges focus is kept.... HMLR registered a document that is in 'form' a deed, but it is not the type of deed that is necessary for the transfer of any interest from your friend to the original lender in relation to your friends estate... because.... it is only signed by your friend.... and not the Lender... keep your focus here....

But that's another matter as again I have to wait to see what paperwork they send him.

The only paperwork any subprime lender has is the purported deed that relates to the purported transfer of a borrowers interest to them in relation to the land... and HMLR's registration of the interest as shown on the title register.....but, as we know this is the matter for consideration by either the district judge... if he perceives he has time to deal with it.... a HCJ or the Adjudicator....

The list I have been asked to do is the grounds on which the appeal is made( I have done this under them not owning the mortgage and the deed being void.)

ok.... How much time do you have to get this ready?, Please advise....??

They solicitor would (or would not ) understand how I could make this claim as the deed was reg at the LR as shown and as you say that is what they are relying on.

Yep, that's because, they never ever intended that any borrower would ever come to find out that the Deed is a 'specialty contract... and needs to be signed by both the lender and the borrower for validity, or that the presumption of delivery from a borrower was repealed by the RRO 2005......

For the last 8 years, Lenders have hid behind the registered title... At Last, you have a district Judge who is making the right noises....asking the right questions.... long before determining the issue.... so that fair justice is apportioned to the parties to the proceedings...

hen when the judge asked what grounds this was based on I went though the run down of the notes for the Adjudicator which you kindly did but again their agent did not understand or had any knowledge of them and said I don't have these, I said they where given at the last hearing?? were the d/j agreed and said that's up to you as they were given to the last agent.

The Agent must have felt so embarrassed...hopefully, the firm of solicitors who instructed him, will hand him the list and guide him further - The Agents brief will of course remain the same - or, if he is not willing to purge himself - then he will be replaced by a 'barrister'... be mindful....these guys don't mess around....but your stance must remain the same regardless of who they send... your stance is based on the LAW....no Agent, Solicitor, Barrister is above the Law..regardless as to whether they happen to play golf with the district Judge at weekends or not.....

That's been their game all a long.

Yep, that's right... reliance on a fact that a registered title has nothing to do with the validity of the underlying deed... has secured 0000's of possession orders for sub-prime lenders...a matter that was addressed by the RRO 2005 over 8 years ago!!... yet to be brought to the forefront of any and all Judges mind...

This is with your help some thing which will open up a can of worms which will have a very very big impact on the whole system.

It is the RRO 2005 that provides the help, not me.....it was intended that a Deed for mortgage purposes was not misconstrued by Deeds that are intended for other purposes...

And may help more than just him.

I agree, the importance of the RRO 2005 was well intended to protect the public interest... it is now being used for just that purpose... your friend is a member of the public and many others too... His Lordship was simply doing his job... it is up to the public to make use of that which was intended for the public protection....

I just wonder why every one is saying rates are going up and up yet we are not even out of the s***t yet?

Life goes on Is It Me....it is for the individual to protect that which he believes belongs to him... only then will you be out of the s***t (nasty word, not one I would use, I use it merely to coin your phrase)

Get back to me...let me know how much time I have to get the grounds together for you....I won't be around until about Wednesday now, but if need be... I can get back to you in the middle of any night prior to then...ok : )

Apple

applecart · June 30, 2013

Hi Ben

It's great to see you making comment again.... I thought we had lost you...welcome back : )

I can not speak for Is It Me of course, but for me, your comments are well received as 'cautionary'....especially when you refer to the 'sale' being one that has yet to be completed....due to lack of registration....

May I say, the sale has been completed...the SPV will have registered a purported interest in Is It Me's friends estate at Companies House.

The Title at HMLR remains unchanged... and we understand why this is.....

But, we are looking at the Deed as you know... not the registered title per se... we have already highlighted that the registration has taken place by mistake.... that is to say that on the balance of probability... the title cannot be relied upon to confirm the validity of the underlying deed due to being signed only by Is It Me's friend... a 'specialty contract' is required for the transfer of an interest in land to evince the type of deed necessary that complies with LPA 1925 section 52.

It is the 'validity' of the Deed that is at issue.

To take it one step further.... did Is It Me's Friend's deed as signed by him - confer a interest in relation to the land for mortgage purposes or not?

If it did, then rights in possession apply - if not....due to their being no 'specialty deed' in evidence between Is It Me's friend and His Lender - then no such right to possession applies...

The registered title can be set aside - ideally the proceedings need to be set aside until the matter is determined one way or the other....

Nice to see you back, your input is always welcome : )

Apple

applecart · June 30, 2013

"Originally Posted by IS IT ME?

But the deed signed by the company which is executed the company for the sale agreement has been done by common seal

Any thoughts??"

You need to explain further on this Is It Me.... Is this document in evidence in the current proceedings??

Apple

applecart · June 30, 2013

Hi Ben,

Please do not take this the wrong way......but, I have looked at some more of your comments on this thread, and I know you mean well, but, we are trying to keep this thread purely for the purpose of assisting Is it Me assist a friend.

Focus is paramount here... I fear you are likely to be distractive...albeit no doubt with good intention... but distractive non the less...which is not called for on this thread.

No offence, but unless you have something positive to add to this thread, would it be too much to humbly ask you to post on the thread you started in relation to your interpretation of the Law in relation to deeds....

Thanks in advance

Apple

IS IT ME? · June 30, 2013

Hi Apple,

Thanks for your post to answer s the two points,

We have 3 weeks to answer the question of listings so I was going to wait until he got the order comes though to know what we need to do and secondly the deed charged at companies house and the sale agreement have both been signed by all parties to the sale and YBS have put the company seal on it.

Also I don't know if this is any good but the deed signed by my friend was done un-dated both on his signature and the one at the top for when it was to be reg at the LR?

thanks once again.

I would say that if there was no merit in this then the d/j would have thrown it out long ago.

Edited June 30, 2013 by IS IT ME?
spelling

IS IT ME? · June 30, 2013

ops done twice

Edited June 30, 2013 by IS IT ME?
put in twice

bhall · July 1, 2013

The Mortgage Sale Agreement, actually includes a number of different deeds. You should note that some of deeds contained within that document are only to be signed by one party and not the other. An example of which includes the Deed of Power of Attorney.

This may be an area in which you would like to look into further.

To add to the above

This is a link to the Deed of Assignment between the lender Accord and the SPV Brass No.1

You will note that this deed, is only required to be and is only signed by Accord and a witness. It is only required to be signed by Accord as it only contains obligations for Accord. Brass No.1 does not have to sign it, as the deed includes no obligations for brass. Naturally, this deed is subject to the Mortgage Sale Agreement and the clause previously posted in regard to perfection