Repossession questioned by deeds not being signed

[applecart]

No problem Is It me, I'll look at it overnight - I'm a bit of a night owl as you may know by now : )

 

Apple

[IS IT ME?]

Apple

Here is the full reply;

 

Upon reading(?)lol the application dated 10th may under sec 108(2) of the LR Act 2002

and upon the tribunal considering that the application ought to be stuck out as there is no reasonable prospect of the application succeeding.

 

It is ordered as follows;

 

Her Majesty's land reg is to be removed as the respondent[ person against whom an order is sought] to this application

The applicant has until 5pm 16th July to make written representations in relation to the proposed striking out of the application

 

This order is made pursuant to rules 9 and 10 of the tribunal procedure (first tier tribunal property chamer rules 2013.

Reasons,

 

1 The application is to set aside a charge dated xxyyzzz made between (1) Lender and (2) the borrower HM land registry is not a party to that charge. The application is made under sec 108(2) of the LR act 2002. The tribunal has no power to make an order to alter the register when exercising its jurisdiction under sec 108(2).

 

It can only rectify or set aside a document under sec 108(2) and the register of title is not a document for the purpose of that provision.

So, HM land registry should not be named in part 3 of the application but the lender should be named instead of HM land registry.

 

Charges do not as a matter of law always require execution by the lender as well as the borrower. The charge is created by the borrower not the lender so generally only requires execution by the borrower.

 

The applicant does not contest that they executed the charge so dated. The charge is not in a form showing it required to be executed by the lender.

 

The authorities relied on by the applicants concerned whether documents had been properly executed and not whether a lender is required to execute a charge.

 

The land re form of charge CH1 does not require execution by the lender except where a note on the register of an obligation to make further advances has been applied for.

and that's it.

 

what I would say is that there has been no CH1 form nor have they really read the application because it does very clearly state that the lender should execute the deed.

 

I also note is uses the term generally, always and why say the tribunal can not rectify the register because it's not a document?

 

so what do you think apple lets prove your right.

Edited July 13, 2013 by citizenB
formatting for easier reading

[applecart]

Hi Is It Me, Site Team...

 

When the 'written representation' is drafted and ready for posting up.....are you happy for the detail to be posted on the forum... I have no 'attachment' facility and the 'written representation' is more than 10 pages long so far.....

 

I think it will take up too many pages on the thread as it stands...

 

Can we do as we did before please Site-team... by you sending it to an email address first??

 

I'm hoping it will be ready for opinion and debate within a few hours or so....

 

Cheers

 

Apple

[citizenB]

Hi Is It Me, Site Team...

 

When the 'written representation' is drafted and ready for posting up.....are you happy for the detail to be posted on the forum... I have no 'attachment' facility and the 'written representation' is more than 10 pages long so far.....

 

I think it will take up too many pages on the thread as it stands...

 

Can we do as we did before please Site-team... by you sending it to an email address first??

 

I'm hoping it will be ready for opinion and debate within a few hours or so....

 

Cheers

 

Apple

 

 

Apple.. my email address is [email protected] (no spaces) . Advise on the thread that it is being sent so that I can keep watch on the inbox.

[IS IT ME?]

thanks apple once again

Citizenb, you can give him my email address if you need to via you of course.

[applecart]

Hi CitizenB

 

I have drafted the document - it will be in your in-box within the next 5 - 10 minutes.

 

Is It Me,

 

Please accept my apologies for the length of time taken to put this information together for you....please accept also that it does not contain or intend to offer you legal advise or any guarantee that your application will be moved forward due to its content, but it is hoped that it will add to your knowledge at the very least.

 

Whilst I recognise that time is of the essence, do not hesitate to question anything within the document that does not make sense - ok..

 

Likewise, if you or others do not agree with any statement or the content - please shout out so that it can be corrected if necessary....

 

I'm now going to get it emailed across.

 

Apple

[applecart]

done : )

 

now I'm off to bed at last......

 

Applecart

[applecart]

OOOPs, please see below for amendments to the document to be posted:

 

xvii It is submitted that given the substantiating applicable law as stated herein, the registered charge stands to prejudicially affect the applicants rights to the legal estate. In the circumstances given that the lenders legal rights are due to statute alone, it is within the LPA 1925 section 1 (7) to find that the interpretation of the LRA 2002 section 58 (1) is to have no more effect than that of an owner of an equitable interest.

 

4 It is the applicants contention that the deed between the applicant and the lender is void ab initio pursuant to the LPA 1925 section 52 (1) for want of legal formality, and that the lender had no legal right to rely on the registered charge for legal effect to:

 

In the document, it has mistakenly quoted the 'LRA 1925' - which would give an all together different interpretation of the law....apologies for this.....I just got totally knackered.....I'm glad my OH spotted it...phew!!!

 

Apple

[IS IT ME?]

What you sleep as well lol

amendment noted and replace when I have it.

Thanks once again, I am sure that they will get somewhere with your help.

[citizenB]

Apologies for the delay.. I took a few hours off..

 

Document sent by apple is attached below. Both in pdf and word formats.

 

 

[ATTACH=CONFIG]45186[/ATTACH]

 

 

[ATTACH]45185[/ATTACH]

[IS IT ME?]

God your good apple lol,

Lets see what they now come bank with.

[bhall]

God your good apple lol,

Lets see what they now come bank with.

 

If you are seriously going to rely upon the document written by Apple (personally I wouldn't and urge the upmost caution - don't worry I won't go into detail) - Before sending it, you might want to post on this thread, so that Apple can read it, the wording of the deed signed by your friend. This is only a suggestion as you may find the wording of the deed has a bearing on the information contained within that document /advice given by Apple.

 

The choice is yours

 

Ben

[IS IT ME?]

so your a solicitor or a judge then?

and as you have never put any thing other than say it is wrong or this is then you keep on saying it is wrong but never put any thing in place to help do not reply please

[IS IT ME?]

So you are a judge or solicitor then?????

You keep on saying its wrong or that the information is rubbish but I note you say nothing to help or any thing!

please therefore do not reply to this thread any more as it is for serious people.

[caro]

so your a solicitor or a judge then?

and as you have never put any thing other than say it is wrong or this is then you keep on saying it is wrong but never put any thing in place to help do not reply please

 

I have no doubt that both apple and bhall are each trying to help you in their own way. You would be well advised to consider any arguments for or against that may arise in court now, rather than get any surprises in court.

[bhall]

please therefore do not reply to this thread any more as it is for serious people.

 

I am very serious, but it is your thread and your choice. So be it

[IS IT ME?]

Caro,

I have looked at the LAW as bhall puts it and its STATUTE law therefore it the one I will reply on.

I also note that as I said bhall who ever has NOT put any arguments in favour of this matter or any thing that would help, just knocking all the time.

May be you can show me where he has? on any posts

[caro]

I cannot point to any arguments bhall has put in favour of the matter as he clearly doesn't see any.

 

I don't know if there is any or not, but you should consider if there is any case law, as well as statute. I'm certainly not aware of any, but I know that a lot of people have looked into these issues in great depth, and to date have not been successful in getting a favourable response from a judge. I've no doubt if they had been successful it would be plastered all over the forums.

[IS IT ME?]

AS I said,

May be this will be the first but as you know only too well its how the case is put together it was the same with LBL was it not.

no one won a case until I did and others.

I can not for the life of me see why bhall keeps on saying things as he does and then gives nothing in return.

[bhall]

As I am being discussed, I exercise my right to reply.

 

Is It Me? with all due respect, would you rather that I post yes you can do this, yes you can argue that - when those actions and arguments are flawed and have no real basis in law (not supported by statute or case law) ?

 

I don't consider posting flawed arguments to be either helpful or supportive.

 

By way of an example, as both you and Apple joked, the response you received from the Property Chamber, was the same as I had posted in this thread. You have only shown interest on pursuing a defense to your friends possession on the grounds promoted by Apple. I personally consider it to be helpful to show why that advice is wrong.

 

As I have said previously there are very good reasons why what I have posted has been virtually identical to the response your friend received from the tribunal. Those reasons being that the arguments you have elected to use are based on misunderstandings.

 

I can't post anything in support of the course, you have decided to follow - It has absolutely no basis in law and is based upon Apple's interpretation which has already been shown is incorrect by the order provided by the Property Chamber. -

 

Apple

Here is the full reply;

 

Upon reading(?)lol the application dated 10th may under sec 108(2) of the LR Act 2002

and upon the tribunal considering that the application ought to be stuck out as there is no reasonable prospect of the application succeeding.

 

It is ordered as follows;

 

Her Majesty's land reg is to be removed as the respondent[ person against whom an order is sought] to this application

The applicant has until 5pm 16th July to make written representations in relation to the proposed striking out of the application

 

This order is made pursuant to rules 9 and 10 of the tribunal procedure (first tier tribunal property chamer rules 2013.

Reasons,

 

1 The application is to set aside a charge dated xxyyzzz made between (1) Lender and (2) the borrower HM land registry is not a party to that charge. The application is made under sec 108(2) of the LR act 2002. The tribunal has no power to make an order to alter the register when exercising its jurisdiction under sec 108(2).

 

It can only rectify or set aside a document under sec 108(2) and the register of title is not a document for the purpose of that provision.

So, HM land registry should not be named in part 3 of the application but the lender should be named instead of HM land registry.

 

Charges do not as a matter of law always require execution by the lender as well as the borrower. The charge is created by the borrower not the lender so generally only requires execution by the borrower.

The applicant does not contest that they executed the charge so dated. The charge is not in a form showing it required to be executed by the lender.

 

The authorities relied on by the applicants concerned whether documents had been properly executed and not whether a lender is required to execute a charge.

The land re form of charge CH1 does not require execution by the lender except where a note on the register of an obligation to make further advances has been applied for.

and that's it.

 

what I would say is that there has been no CH1 form nor have they really read the application because it does very clearly state that the lender should execute the deed.

 

I also note is uses the term generally, always and why say the tribunal can not rectify the register because it's not a document?

 

so what do you think apple lets prove your right.

 

Despite the order stipulating

 

"The applicant has until 5pm 16th July to make written representations in relation to the proposed striking out of the application"

 

Apple has not addressed the reasons given as too why the application is being struck out by the Property Chamber such as the charge ( - keyword charge - which in itself proves it is not a mortgage by demise) does not as a matter of law always require the execution by the lender as well as the borrower - Apple has not also addressed that the Property Chamber concluded that the charge is created by the borrower not the lender so generally only requires execution by the borrower.

 

The reason being, as has already been argued in Court

 

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.

 

Instead Apple has gone on a diversion about mortgage by demise ???

 

How can there be such a charge - if as now suggested by Apple it is a mortgage by demise ??? - The charge is evidence that it is not a mortgage by demise.

 

You have chosen to follow Apples advice that is your choice. However, to give Apple an opportunity to amend/correct that advice - I have suggested and would highly recommend that you post the terms of the deed signed by your friend. Those terms have serious implications in terms of the information posted in the document recently posted in this thread.

 

As an example -

 

Does the deed say that it is for a 'mortgage by demise' with reference to a term and redemption ? or does it say that it 'charges the Property by way of legal mortgage' - being a 'charge by deed expressed to be by way of legal mortgage' and not a mortgage by demise. - To emphasis my point this is a link to an uptodate deed for Accord - http://www.accordmortgages.com/documents/ACCL0002MR.pdf

 

"3.The Borrower with full title guarantee charges the Property by way of legal mortgage with the payment of all monies which are or may become payable to the Lender by the Borrower, (except monies payable under any agreement whenever made which expressly provides that they are not to be secured by this mortgage"

 

Come on Is It Me? from a purely Property Law point of view points 3 (i), 3 (ii) and 3 (iii) of Apple's document contradict and conflicts each other.

 

 

I won't even bother going over again why Apples conclusions that the changes to the legislation mean that the lender has to execute the deed are flawed, as you are clearly not interested.

 

Sorry if you do not feel that this is helpful.

 

I reserve the right to respond further, if and when I am discussed.

 

Ben

Edited July 15, 2013 by bhall

[IS IT ME?]

no reply thank you as I say you don't post any thing of any value

and I will not be giving you any information for the other side.

[applecart]

As I am being discussed, I exercise my right to reply.

 

Is It Me? with all due respect, would you rather that I post yes you can do this, yes you can argue that - when those actions and arguments are flawed and have no real basis in law (not supported by statute or case law) ?

 

I don't consider posting flawed arguments to be either helpful or supportive.

 

By way of an example, as both you and Apple joked, the response you received from the Property Chamber, was the same as I had posted in this thread. You have only shown interest on pursuing a defense to your friends possession on the grounds promoted by Apple. I personally consider it to be helpful to show why that advice is wrong.

 

As I have said previously there are very good reasons why what I have posted has been virtually identical to the response your friend received from the tribunal. Those reasons being that the arguments you have elected to use are based on misunderstandings.

 

I can't post anything in support of the course, you have decided to follow - It has absolutely no basis in law and is based upon Apple's interpretation which has already been shown is incorrect by the order provided by the Property Chamber. -

 

 

 

Despite the order stipulating

 

"The applicant has until 5pm 16th July to make written representations in relation to the proposed striking out of the application"

 

Apple has not addressed the reasons given as too why the application is being struck out by the Property Chamber such as the charge ( - keyword charge - which in itself proves it is not a mortgage by demise) does not as a matter of law always require the execution by the lender as well as the borrower - Apple has not also addressed that the Property Chamber concluded that the charge is created by the borrower not the lender so generally only requires execution by the borrower.

 

The Application has not yet been struck out Ben, as per usual you are again making inferences that are not true...as you know, Is It Me's Friend had the opportunity to make a written representation - that's what it says....the document posted leads on that basis....

 

The issue posed by the Property Chamber with regard to 'the charge does not as a matter of law "always" require the execution by the lender as well as the borrower has been wholly addressed.... with respect Ben, if you do not understand what has been stated in the written representation, that's one thing....the level of expectation here is....that the Judge will understand......and in case he doesn't for any reason, which I do not believe should or would be the case....the document posted...explains what a mortgage by demise is... and how they come about.... likewise, it also explains that the deed on its face; conveys an equitable interest only ..... NOT a Legal one.......all submissions have been as far as I can tell backed up with the applicable substantiating Law....not my opinion....

 

The reason being, as has already been argued in Court

 

 

 

Instead Apple has gone on a diversion about mortgage by demise ???

 

How can there be such a charge - if as suggested by Apple it is a mortgage by demise ??? - The charge is evidence that it is not a mortgage by demise.

 

When you say 'how can there be such a charge'.....it's quite simple really....all you have to do as a lender is get the borrower to 'sign' the deed and then fail to 'execute' it yourself.....that's how you create a mortgage by demise...the charge is not evidence of anything to do with the underlying Deed Ben.....the Deed is what is at issue....once the Deed is given due consideration, and 'set aside' then the Judge will go on to consider if the ''Charge'' is to be removed from the title of Is It Me's friends estate

 

You have chosen to follow Apples advice that is your choice. However, to give Apple an opportunity to amend/correct that advice - I have suggested and would highly recommend that you post the terms of the deed signed by your friend. Those terms have serious implications in terms of the information posted in the document recently posted in this thread.

 

The 'terms' you speak of are not the issue - it is whether or not those 'terms' are party to a valid deed or not....if they are not, then the terms will convey nothing more...at best other than an equitable interest.....

 

As an example -

 

Does the deed say that it is for a 'mortgage by demise' with reference to a term and redemption ? or does it say that it 'charges the Property by way of legal mortgage' - being a 'charge by deed expressed to be by way of legal mortgage' and not a mortgage by demise. - To emphasis my point this is a link to an uptodate deed for Accord - http://www.accordmortgages.com/documents/ACCL0002MR.pdf

 

"3.The Borrower with full title guarantee charges the Property by way of legal mortgage with the payment of all monies which are or may become payable to the Lender by the Borrower, (except monies payable under any agreement whenever made which expressly provides that they are not to be secured by this mortgage"

 

Come on Is It Me? from a purely Property Law point of view points 3 (i), 3 (ii) and 3 (iii) of Apple's document contradict and conflicts each other.

 

I was conscious that you would say this - as you have said it before, that's why, I've made it as clear as possible in the document posted; the purpose of the RRO 2005 and its implications on the presumption of delivery from sight of a borrowers signature alone having been repealed......

 

I won't even bother going over again why Apples conclusions that the changes to the legislation mean that the lender has to execute the deed are flawed, as you are clearly not interested.

 

Sorry if you do not feel that this is helpful.

 

I reserve the right to respond further, if and when I am discussed.

 

 

 

Ben

 

Ben, Ultimately, you have not advised your interpretation of a specialty contract, not re-addressed the fact that 'Eagle Star' is out of date; in 'Helden' there was a signed agreement by both lender and borrower...unlike with Is It Me's friend....

 

Your constant referral to the response from the property chamber telling all and everyone that would listen that the application "was struck out" is wholly misguided/interpreted.....

 

You now infer that a 'charge' is not a mortgage by demise - to confuse and distract the meaning of a 'charge' with a 'mortgage by demise'

 

It is clearly stated by Is It Me and posted up on the thread - the fact that Is It Me's Friend's application was sent on the 10th May 2013.....the document to assist...did not get posted until the 31st May 2013.....Is It Me included the info, but it will have made little or no sense to that which was submitted previously - certainly not in the manner in which it would appear that it was done......the written representation looks to amend those errors.....so, when you go around the threads saying that what I had to say is wrong, perhaps you would be good enough to take this into account....

 

Apple

[applecart]

So, as Ben is the only one that has been good enough to advise his concerns as to the document posted - it is fair to consider his reasoning fairly and respond accordingly, namely:

 

"Apple has not addressed the reasons given as too why the application is being struck out by the Property Chamber such as the charge ( - keyword charge - which in itself proves it is not a mortgage by demise) does not as a matter of law always require the execution by the lender as well as the borrower - Apple has not also addressed that the Property Chamber concluded that the charge is created by the borrower not the lender so generally only requires execution by the borrower...."

 

Ben says:

 

“charge ( - keyword charge - which in itself proves it is not a mortgage by demise)”

 

Firstly, the ‘charge’ is the name of the lender as shown on the register – that is entered by staff at HMLR after ensuring the detail on the ‘approved form of charge’ meets their requirements in its own Practice Guide 30…

 

Secondly, it would be re-miss of me to confuse the meaning of a ‘charge’ with the underlying document that creates the ‘registrable disposition’…..the ‘DEED’….that being the document that contains the terms ‘expressed to be by way of legal mortgage’ in the ‘approved’ manner required and accepted by HMLR…also found in Practice Guide 30….

 

Thirdly, it is correct to say that the ‘charge’ or better stated; the ‘approved form of charge’ ‘does not as a matter of law always require the execution by the lender as well as the borrower’…..We know this already, because HMLR’s Practice Guide 30 clearly tells us all ‘there is no prescribed form of charge’……this simply means that….if the lender wanted to send in a scrap of paper or the back of a fag packet with the borrowers signature attached to it with the express words required by statute on it, then that would be enough to cause the borrowers title to be ‘charged’……but,….. it would be re-miss of me or anyone else for that matter to confuse that statement with the formalities to do with a DEED when used as an ‘approved form of charge’…or to confuse themselves that a CH1 form or for that matter a CH2 form is a DEED……A DEED as a MATTER of LAW must be ‘signed’ by the Borrower and ‘executed’ by the Lender.‘ for it’s validity…

 

HMLR practice Guide 30 tells us all…..there is no ‘prescribed form of charge’….it only requires a signature from a Lender if the Lender intends to make further advances and if the lender is using the CH1 form he must sign it and if he is using his own ‘approved form of charge’ then he must sign and submit the CH2 form instead….

 

Lenders are clearly opting to use a DEED as their ‘approved form of charge’ secure in the knowledge that HMLR will accept sight of the Borrowers signature alone and enter the ‘charge’ on the register….and if they have agreed to a further advance with the Borrower…they will have submitted a form CH2 and signed that……the fact is….even if they have signed the CH2 form….that is not the same as the legal formalities required when looking to cause a DEED to be VALID…

 

Is It Me’s friends mortgage has been identified as one which has been securitised….it would be re-miss of me not to have taken that fact into account….the significance being….that in effecting a mortgage by demise…that being the type that requires a deed signed by the borrower to mean that as ‘creditor’ the Lender will own the Borrowers estate until the debt is repaid in full……the type of which no Borrower has had the legal power to give effect to since the LRA 2002 came into force…..and…., in the knowledge that a Deed in Escrow….is an ideal tool for securitisation purposes….i.e - not executed by the lender because ultimately it may be 'joe bloggs' that ends up the overall owner of the equitable estate.....it would be remiss of me not to imply in the circumstances that the Lenders only means of entering into possession to effect the sale to the SPV is by means of a Deed that created a mortgage by demise…for it can only take advantage of that which it owns…right???.....and it would have been remiss of me if I did not imply and make clear that in FACT the LPA 1952 section 53 (1)© will find that the Lender only managed to effect an equitable interest……in total contradiction to what the lender says it acquired and what it actually did legally achieve ….. I simply needed to try to make this point as best as I could in the written representation….

 

Now, if others can make the point better than I have, which I’m more than sure there will be many that can……, then they should say so…..

 

In the application, what is also clear from the response is that Is It Me failed to mention Schedule 4 as I suspected… I’m hopeful that I have made reference to it in the right way to address the issue in the written representation….again, if I have not done so….please step forward and say so…..

 

Apple

[IS IT ME?]

here here

[applecart]

Hi Is It Me

 

It is unlikely that anyone will come forward....the fact appears to be that whilst we heed the cautions posted, when we do, and cover it....they come with something else and something else, but nothing to justify where they are coming from....it comes across as distracting; but, for the record....I do take note of what is posted....

 

Be assured; I did look at 'mortgages by demise' and came to understand that prior to the LRA 2002 coming into force expressly repealing mortgages by demise, lenders were exercising and purporting to have an inherent right of possession (fourmaids v dudley) by way of encumbering the legal estate of a Borrower .... this as I say in the written representation is the only means by which they could possibly effect the sales to SPV's (it is/was tantamount to a legal loophole that said a mortgage by demise and a deed expressed to be a 'charge by way of legal mortgage' had the same effect......)

 

On that - whilst mortgages will expressly state..charge by way of legal mortgage....the intent of the lender still remains that they can enter the estate of the Borrower...this is why I have flagged it up as an issue in the written representation for consideration...so that, it is clear....section 23 repeals that legal loophole - so that a 'charge by way of legal mortgage will not infer a right to enter the Borrowers legal estate to effect a sale to an SPV...

 

Likewise...I have flagged up the fact that a writing 'SIGNED' by the Borrower but not 'EXECUTED' by the Borrower creates an equitable interest....section 53(1)©... to be exact.....the statutory significance is that .... a Lender who has acquired an equitable interest 'by way of legal mortgage'....is an oddity if the underlying DEED is not 'DELIVERED'

 

The word 'EXECUTED' is significant against the word 'SIGNED' - if you recall, I flagged up 'HILMI' to point you to the meaning of the word 'EXECUTION' in LAW...which was:

 

“3. Law. To go through the formalities necessary to the validity of (a legal act, e.g. a bequest, agreement, mortgage, etc.) Hence, to complete and give validity to (the instrument by which such act is affected) by performing what the law requires to be done, as by signing, sealing, etc.”

 

so, it is to do with 'signing'...but is referred to in the LPA as 'execution' in relation to the Lender duty to sign...thus execute the DEED.... and like I said... the onus was on the lender to do that before the presumption of delivery can be said to have occurred...

 

The fact is.... most of the sub-prime lenders...if asked, will tell you... they do not intend to sign/execute...until all the monies have been paid.....that is a 'mortgage by demise'....

 

Hope this titbit helps : )

 

Apple