Repossession questioned by deeds not being signed

[IS IT ME?]

well after that I had to have a cup of tea,

no I think its because who ever now knows that I can string more that two words together if you know what I mean.

And there is a fright on its way.

[p.j]

ok applecart thank you i will wait while you check.

[applecart]

well well applecart,

Are you sitting down??? because I had too!

I have just had a telephone call and I DO NOT know if it was for real or just a wide up?? it went like this.

Lady Mr;;;;;;

me Yes

lady I have a call for you, Man comes on the phone.

Me Who are you and where you from

Man I would like to keep this of the record for now

Me but if I don't know who you are I am not saying any thing sorry,

Man Its about your claim with ?????? Lender and the property chamber

NOW CAN'T GET TO RECORDER.

Me well its with them so lets see what happens as I have told you no phone calls every thing in wirting.

Man what are you looking for?

Me You know full well what is before the chamber

Man well we can end this now if you agree as agent for Mr;;;; and Mrs;;;;;;;

Me sorry it doesn't work like that you had your time in court.

Man well I can get all the arrears and a lower interest rate if you agree now.

Me sorry its not yours to give any thing so I am ending this now and as you will not give any details I have no more to say.

Man well we can not let you win this you know that.

then went on about other cases but I just put the phone down when I tried to get the number back for 1471 it came up as number withheld.

No one other than the lender their solicitors or court have my number so your guest is as good as mine on what is going on here.

 

WELL, WELL, WELL.......

 

That's not the way a part 36 offer works.....Did you manage to record the call yourself at all??

 

Apple

[applecart]

well after that I had to have a cup of tea,

no I think its because who ever now knows that I can string more that two words together if you know what I mean.

And there is a fright on its way.

 

Do you know what..... I think I will go get me a cup of tea too : )

 

Apple

[IS IT ME?]

only the last minute or so as I was in the garden and had to come back.

I know about part36 and the court would not be happy with this.

 

Why are they now so worried? and more and more cases are going into the chamber I think?

[UNRAM]

Hi UNRAM

 

I think it is more than acceptable for you to write to the Chamber and ask them the questions you ask here.....or simply contact them by telephone.....

 

I hope you will appreciate that I cannot truly comment more than what I have said above because I did not see your application and I had no idea that you had amended your application to the extent that you were seeking a decision in 'principle'.....subject to the sale of your house...

 

I can only suggest that you explore the avenue .... and be good enough to post back here anything that you find out in case others wish to follow the same route : )

 

Although, I personally do not advocate selling a house that will clearly stand to benefit a lender.....

 

Apple

 

Many thanks I appreciate your opinion - especially the last point. I wish it were as simple as waiting for a decision and then selling... finding a buyer can take a long time... I have a right to know if they are entitled to proceeds from the sale of my property regardless of whether I sell it or they do (by repossessing). I won't clog up this thread with any more speculation but I will update with any feedback from the Chamber...

[alisono]

Dear Applecart,

 

I am struggling here now, I have spoken to the Court who have told me to send my letter in and they will look at it as the Judge has only allocated 10 minutes for our hearing.

They have no idea what the property chamber is they have never heard of it? Anyway I will attach a copy of the application to the Property Chamber to the Judge, do I need to also do this so SPML can see this also.

I am at a loss to where to send my letters to Acenden/SPML/Lighfoots the solicitors.

 

Thank you

[applecart]

Dear Applecart,

 

I am struggling here now, I have spoken to the Court who have told me to send my letter in and they will look at it as the Judge has only allocated 10 minutes for our hearing.

They have no idea what the property chamber is they have never heard of it? Anyway I will attach a copy of the application to the Property Chamber to the Judge, do I need to also do this so SPML can see this also.

I am at a loss to where to send my letters to Acenden/SPML/Lighfoots the solicitors.

 

Thank you

 

Hi Alisono

 

Don't stress. Any letters sent to court are looked at and then attached to the file for the Judge to see as party to your lenders claim against you......

 

Within your letter, we have already acknowledged that the Judge will not have time to deal with the issues....the letter simply outlines the issues....so the staff at the court and the Judge can see...it is not one for them to deal with....the Judge will not have enough time to do so either...10 minutes is not what it would take...even if he tried to that would be be fair justice.....so....the letter gives the Judge a 'get out of jail free card'....which is...can you 'adjourned' this case for me...so that I can take the issue to the Chamber to deal with please?....

 

There is nothing wrong with sending in the letter.....get it done, the sooner he sees it the better : )

 

Read through again, the detail in response to your last post.....be calm...be focused..... I know it is a stressful time for you right now....threats of possession are not nice.....so, I do understand why you feel the way you do....but you must stay calm and focused.....ok?

 

The Judge does not have time or need to see the application that you are sending to the Chamber....but you are welcome to send it to him if you wish....you invite a district judge to cast judgement on the issues without any more than 10 minutes of consideration....the letter includes more than enough for him to consider....in the time he has allocated.......he does not need the whole arms length.....

 

Like I said, be good enough to read that which I posted in response to you earlier to day..... : )

 

Apple

[applecart]

only the last minute or so as I was in the garden and had to come back.

I know about part36 and the court would not be happy with this.

 

Why are they now so worried? and more and more cases are going into the chamber I think?

 

Right, tea in hand...two sugars too.. : )

 

Personally, I have to say... I would have heard the man out to the end...made notes and questioned them on each and every point they made......good or bad....

 

However, this means that they are very concerned...this means they are now willing to negotiate terms to assist your friend....

 

I do hope when they said 'We can't let you win this'....that it was not said or uttered with menace......The Police are adept at tracing any with held calls.....in case they did not know.....doh!!

 

What do you mean 'the court would not be happy with a part 36 offer??

 

Apple

[applecart]

Many thanks I appreciate your opinion - especially the last point. I wish it were as simple as waiting for a decision and then selling... finding a buyer can take a long time... I have a right to know if they are entitled to proceeds from the sale of my property regardless of whether I sell it or they do (by repossessing). I won't clog up this thread with any more speculation but I will update with any feedback from the Chamber...

 

Ok UNRAM.... I hear you....cheers : )

 

Apple

[applecart]

Hi P.J

 

Right, if your leasehold estate was registered land at the time you signed the deed, then you too had no power to mortgage it to the favor pf any lender....that's what the LAW means when it speaks of 'sub-demise' in LRA 2002 section 23.....so. let's say you were going to use the 'grounds' posted up yesterday to assist Alisono.......you would change any reference made to 'demise' and say instead 'sub-demise'....

 

Your original loan was taken out in 2004....Preferred stepped in in 2006.....they are subjected to the same treatment as SPML - You can use the same letter that was posted up for Alisono - amend the first bit....because you do not know for sure that they securitised your mortgage (although we know they did... you were not sent confirmation of that fact - not as yet anyways) and get it sent into court ahead of your hearing on the 16th.....and follow the same steps as Allisono to get an application off to the Chamber....asap : )

 

By the time Preferred came on board....the RRO was definately in place.....the right to treat a deed signed by you alone as a means of assent to a mortgage was repealed way back in 1994 in any case.....so, yes, your application should also be accepted by the Chamber...

 

If you want me to tweek the 'grounds' for you, just let me know : )

 

Apple

[p.j]

thank you applecart for making it more easier to understand whats going on.

 

yes would be appreciated if you could tweak the grounds.

so as i understand it preferred have no entitlement to go for repossession on the grounds of unsigned mortgage deeds?

the deeds i have received from LR for 11pounds are exactly the same as i got from the solicitors, photo copies.

[applecart]

thank you applecart for making it more easier to understand whats going on.

 

yes would be appreciated if you could tweak the grounds.

so as i understand it preferred have no entitlement to go for repossession on the grounds of unsigned mortgage deeds?

the deeds i have received from LR for 11pounds are exactly the same as i got from the solicitors, photo copies.

 

Hi P.J

 

Thought best to 'tweek' the letter for you first....here you go:

 

[enter your name and address here]

[enter courts address here

start it with “Court Manager” followed

by the courts address and postcode]

 

 

[enter the date here]

 

Dear Sir/Madam

 

Re: [enter Preferred Mortgages ‘s name here] v [enter your name/s here] - Claim No: [enter claim No here]

 

With reference to the above I/We write ahead of the hearing due on the [enter date and time of hearing here] to advise that the official copy of the mortgage deed confirms that Preferred Mortgages [ltd] have not executed the deed.

 

I/We acknowledge that the mortgage deed has a dual purpose for; a) charging purposes in approved form for charging the register by HMLR and; b) validly executed and delivered in solemn form by both parties as a specialty contract

 

With this in mind, I/We draw the courts attention to the Trustee Delegation Act 1999 section 10 to provide the statutory proof that there is no lawful means by which the legal and beneficial interest can be separated as alleged by the Claimant. ‘exhibit A’ attached. [copy first page of the said Act and section 10 and the explanatory notes that relate to section 10 and attach to this letter, on the top of this bundle put the words “Exhibit A”]

 

With this in mind, I/We draw the courts attention to the powers of the Defendants pursuant to the statutory provision of the LRA 2002 section 23, to say that I/We had no power to mortgage my/our registered estate; by sub-demise or charge the my/our principal charge by way of legal sub-mortgage; when, to do so would be tantamount to a disposition of the whole legal estate against the intent of the legislator.

 

As aforesaid the mortgage deed has not been duly executed by Preferred Mortgages [ltd], this is the case despite the combined effect of Articles in the Regulatory Reform (Execution of Deeds and Documents) Order 2005; where 10 Schedule 2 removed any presumption of delivery on sight of our/my signature alone by virtue of amending Section 1 (3) LP(MP)Act 1989; meaning it can no longer be said or be misconstrued that the mortgage deed is validly executed and is void for want of delivery in a claim for possession.

 

The RRO 2005 causes the execution of Deeds to be analogous to the statutory provisions of section 46 Companies Act 2006 and the LPA 1925 section 74 (1) & (5) as amended and section 74A in relation to Preferred Mortgages {Ltd]’s fiduciary duty to execute the deed by signatory of 2 Directors and attested by a notary before it can be said or presumed that the deed has been validly executed and thus delivered.

 

In the circumstance, I/We believe that the issues raised herein require more time than is within the scheduled time limits of the county court to determine without prejudice to either party.

 

I/We therefore humbly request that it be ordered that Preferred’ Mortgage’s claim be adjourned with liberty for Preferred Mortgages {Ltd} to restore the claim subject to the issues stated herein being allowed to be more fully determined by the First Tier Tribunal of the Land Division of the Property Chamber as to the validity of the mortgage deed, along with the validity of the mortgage entered against My/Our registered estate.

 

I/We have sent a copy of this letter to Preferred Mortgage [Ltd] recorded delivery on the [enter date sent – keep a copy of the receipt from the post office]

 

I/We believe that the facts stated herein are true.

 

[it’s a good idea to make the letter ‘official’ with a ‘statement of truth’…you can send it in with your application to the Chamber]

 

 

[sign] Date:

 

[print your name here]

 

 

Please check it through....make sure it makes sense to you and reflects your current circumstances - it is posted with the normal caveats and disclaimers

 

Apple

[applecart]

Hi P.J

 

Here are the 'tweeked' 'Grounds'

 

Please head it up the same as those posted for 'Alisono'....

 

Here you go....

 

1. In this case, it is evident that the applicant signed the mortgage deed; however, the applicant contends that the deed so signed failed to transfer the applicant’s legal estate by way of mortgage to the favor of [enter your lenders name here] prior to being entered on the register by HMLR.

 

2. The applicants legal estate was a [enter either: ‘freehold’ or ‘Leasehold’ here] registered estate at the time that the applicant signed the mortgage deed.

 

3. The applicant is the registered owner of the registered estate with Title Absolute known as [*enter full address of the property] registered by HMLR as title No: [*enter title No] and the Lender [*enter lenders, name, address here] is the purported registered legal owner of the applicants registered charge and registered legal estate.

 

i. It is submitted that pursuant to the LRA 2002 section 23; the applicant had no stautory power to create a mortgage by [enter ‘demise’ if ‘Freehold’ or ‘sub-demise’ if ‘Leasehold’ here], and had no intent to do so. It is understood that a mortgage by [enter ‘demise’ if ‘freehold’ or ‘sub-demise’ if ‘leasehold’ here] is evinced when a deed of conveyance is signed by the Borrower alone, the legal effect of which would cause the creditor to be the owner of the whole legal estate/property until the stated indebtedness was repaid in full.

 

ii. It is the case, that once the deed had been signed by the applicant and sent by post to the firm of solicitors, the applicant received confirmation from the solicitor that the mortgage had completed. The applicant had no reason to disbelieve the solicitor or to think that HMLR would have registered a charge if the charge did not convey any other than a sub-charge within the statutory owners powers of the applicant within the provision of LRA 2002 section 23 (2) (b).

 

iii. The applicant had no knowledge as to the legal implication of signing a document headed up as a ‘mortgage deed’ or any knowledge of the legal interpretation and implications attached to terms such as ‘with full title guarantee’ or ‘charge by way of legal mortgage’ and had no knowledge that such terms are intended only to be in evidence when the disposition is intended to secure indebtedness by way of mortgage against an un-registered estate.

 

4. It is submitted that contrary to a mortgage; a sub-charge is evinced when the borrower remains the owner of the legal estate and the indebtedness for money or moneys worth is secured when the lender is entered as the proprietor of the sub-charge in the charges register of the Borrowers principal legal charge.

 

i It is submitted that by virtue of Schedule 2, Article 10(2) of The Regulatory Reform (Execution of Documents and Deeds) Order 2005; it is no longer the case that a presumption of delivery can be taken on sight of the borrowers signature alone; for it repealed the words from “by him” to the end in subsection 1 (3) (b) of the Law of Property (Miscellaneous Provisions) Act 1989.

 

Ii In strict application in this case, this means that on its face the mortgage deed cannot be said to be validly executed and therefore has not been delivered.

 

Iii Additionally; Article 7 (3) of the said RRO repealed the words; “by the person making it” to the end in LP(MPA 1989 section 1 (2) (a) and further removed the words: “by that person” to the end in section 1 (2) (b).

 

Iv Further, Article 5 removes any ambiguity in relation to SPML’s duty to execute the deed for it boldly states: “Repeal of irrebuttle presumption of delivery”

 

v The duty for SPML to execute the deed is analogous with amendments to the LPA 1925 section 74 (1), (5) and 74A and the CA 2006 section 46 intended to correlate with their Memorandum and Articles of Association as a limited company.

 

vi The amendments caused by the RRO must be borne in mind whenever the validity of a deed is at issue, for its validity; it must comply with the LP(MP) Act 1989 section 1 (2) ‘as amended’ therefore, for it’s validity a deed must be ‘signed’ by the applicant pursuant to the LP(MP)Act 1989 s. 1 (3) ‘as amended’ but also; ‘executed’ by the lender pursuant to the LPA 1925 section 74 (1) &(5) and 74A in relation to securing any indebtedness for money or monies worth; before it can be said that the deed is validly executed.

 

Vii In this case, on its face; it is submitted that the deed in evidence is not a validly executed deed.

 

Viii It is submitted that a deed must be ‘delivered’, as aforesaid there is no longer any presumption of delivery on sight of a borrowers signature alone, therefore the onus was on the lender to execute the deed before any presumption of delivery can legally be said to have been effected. In this case, on its face the deed in evidence confirms that the lender failed to comply with the LPA 1925 section 74A (1) and (2), so that in this case, the Deed stands as one registered prior to ‘delivery’.

 

Ix For the benefit of doubt, it is submitted that a deed in relation to the conveyance of land is a specialty contract and as such; it must be signed by both parties, in this case, those parties are [enter lenders name] and the applicant. It is understood that this is necessary to avoid the statute of frauds Act 1677 part IV.

 

x Further for the benefit of doubt, it is the case that a conveyance includes a charge within the meaning of the LPA 1925 section 205 (1)(ii).

 

xi It is submitted that in this case, the deed in evidence is the actual ‘form of charge’ relied upon by both the lender and subsequently by HMLR and is in the form as ‘approved’ by HMLR, this fact is denoted on the deed in evidence as ‘MDXXXXX’.[insert the ‘MD’ No] HMLR do confirm in their practice guide 30 that there is no prescribed form of charge. It is within the provision of the LRA 2002 section 67 (1) for the tribunal to rely that the copy of the deed is an ‘official’ copy and permissible as evidence.

 

xii It is not the case that a document; where on its face it evinces an attested signature of the borrower in the form of a deed, and due to being in writing, that it can be taken to convey a legal interest , when there is statutory provision to find that such a document would serve only to convey at best an equitable interest by virtue of the LPA 1925 section 53 (1) ©.

 

xiii In this case given the amendments to the Acts of Law stated herein that go to some length to re-establish the legal position in relation to the execution of deeds, their validity and delivery; it can not be said that the deed evinces or secured money or moneys worth in compliance with the LPA 1925 section 52 (1), in fact, for that, it is clearly now the intent of the legislators to place the onus on the lender to execute the deed, prior to any presumption of ‘delivery’ being made out to justify registration on the applicants registered estate. This point was explained a long time ago by Sir Charles Hall V.C in Watkins v Nash (1875) LR so Eq 262 at page 266 that:

“You cannot deliver the deed to the grantee himself, it is said, because that would be inconsistent with its preserving the character of an escrow. But if upon the whole of the transaction it be clear that the delivery was not intended to be a delivery to the grantee at that time, but that it was to be something different, then you must not give effect to the delivery as being a complete delivery, that not being the intent of the persons who executed the instrument.”

 

xiv The said point was made out even further back in time by Popham J in Hawksland v Gatchel (1601) Cro. Eliz. 835 at pages 835 – 836 in re-affirming the fact that what amounts to delivery of a deed in English law has been established for over 400 years :-

“For if, upon delivery, the words spoken by the obligor purport that it shall not be his deed, it is clear that it is not: as where one causeth an obligation to be written and sealed in my name, and brings it unto me, and prays that I would deliver it as my deed, and I say, “Do you such a thing, and take it as my deed, otherwise not;” it is clear, that it is not my deed until the thing be performed. So if the obligor saith, “Take it to you, I will not deliver it as my deed;” it is not his deed. Wherefore in the principal case, when the obligation is delivered as an escrow, by express words, it is not possible that it should be his deed, for the words are not sufficient to make it so until the condition be performed.”

 

xv The point was further re-affirmed and brought into present day by His Honour Judge Richard Seymour QC in the matter of Bibby Financial Services Ltd v Magson [2011] EWHC 2495 (QB) when he said in reliance on the decisions from cases stated above, that:

“Thus, in order for a document to be enforceable as a deed, whether executed by an individual or a limited liability company, it is necessary for it to be delivered as a deed.”

 

xvi It is submitted that there are similarities between this case and that of a matter recently decided by the Deputy Adjudicator to the Land Registry: Ann McAllister in the matter of: Garguilo v Jon Howard Gershinson & Anr [2012] EWLandRA 2011_0377 (06 January 2012 at para 76 where it as said that:

“If it were possible to argue that the doctrine of estoppel can cure the absence of a valid signature on the deed itself the statute could, in all circumstances, be circumvented. Formality has its well established place in the law, even though (as with the operation of the limitation period) the outcome may seem arbitrary, and, in the case of deeds, possibly commercially inconvenient’

 

xvii The only difference is that the statement made make reference to a ‘valid signature’ to ensure compliance, where as this application refers essentially to ‘valid execution and delivery’ in this case, it is submitted that; not only has the deed not been executed with any formality to evidence any presumption of ‘delivery’ but; the underlying mortgage offer, understood to be the document necessary to create a simple contractual agreement between the Lender and the Borrower on terms and conditions as referred to in the deed; has itself not been signed by the applicant or the lender and was at no time attached to the deed when the applicant signed the deed. [include this only if this can be ‘evidenced’ to be the case]

 

xviii It is submitted that it is by mistake that the lenders registered charge currently operates at law by virtue of the LRA 2002 section 58 (1) and stands to mistakenly portray to the world at large that the RRO 2005 was either not in force or did not act to remove the presumption of delivery in relation to the applicants signature and a further mistaken belief that a written document which on its face is by deed, signed by the borrower without due execution by the lender confers a legal interest when in fact by virtue of the substantiating law in these circumstances; no more than at best an equitable interest is in actual evidence.

 

ixv 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) as claimed by SPML is to have no more effect than that of an owner of an equitable interest.

 

5 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:

 

i mislead the applicant, a court of law and the world at large into believing that it derived the powers of a legal mortgagee in a right to bring court proceedings for possession of the applicants property.

 

ii mislead a court of law into granting it an order for possession suspended subject to the applicant maintaining CMI payments and payments in arrears.

 

6 It is submitted that the RRO 2005 is in force to protect the interests of the public at large, at a time when the applicant had no power, intent or control to protect its own interests against the world at large.

 

7 The tribunal is humbly requested upon consideration of the submissions herein to set aside the deed as being void for want of formality and to order that HMLR rectify the registered estate of the applicant by altering the charge entered in favor of SPML by removing it due to being entered by mistake against the applicants registered estate.

 

Statement of Truth:

 

The Applicant believes that the statements herein are true

 

Signed: Date:

[Applicant]

[p.j]

hi applecart you are an absolute star its good to see there is real people willing to help thank you very much i will get on this rite now.

 

just to clarify i send the first one to court and preferred second (grounds) to chambers with my application form shall i send a copy to TLT solicitors 1st letter that is.

 

thank you again applecart p.j

[applecart]

hi applecart you are an absolute star its good to see there is real people willing to help thank you very much i will get on this rite now.

 

just to clarify i send the first one to court and preferred

 

Yes, that's right : )

 

second (grounds) to chambers with my application form

 

Yes, that's correct too : )

 

shall i send a copy to TLT solicitors 1st letter that is.

 

Yes, why not....Preferred/aka 'acenden' - will send it on to them any how...but, yes, why not : )

 

thank you again applecart p.j

 

No problem.... : )

 

Apple

[alisono]

Dear Apple

 

all sent letter to court with all attached information. Hand delivered this afternoon.

 

letter and application sent to property chamber by next day delivery.

 

only need tomorrow to send to Spml should i include for their copy the application to the property chamber or just mention it.

 

funnily enough they have been calling me this week.

 

thank you

[p.j]

hi applecart thank you just one more thing the 1999 act section ten exibit A bit is this the grounds form i send ?

[alisono]

hi applecart thank you just one more thing the 1999 act section ten exibit A bit is this the grounds form i send ?

 

i sent that one

[p.j]

sorry alisono i cant see it?

[p.j]

also alisono what did you put in your form for part 5 6 7 for chambers i am dealing with the same people acenden spml.

 

thanks p.j

[alisono]

Hi, i posted it on page 62 just send explanation and the section 10.

[alisono]

Called Trustee Delegation act 1999

[alisono]

I put a copy of mortgage deed

and a copy of the grounds of the application

that's 5

6&7 are really the same i have no witnesses but will call the solicitors who witnessed the deed if i need to

7 the grounds of thee doc apple gave you.

[alisono]

I think they will ask if they need further information i cant thank Applecart enough