Repossession questioned by deeds not being signed

[bhall]

Hello P.J

 

When you return to Court, you should be prepared to respond to the following point as it may be raised.

 

I have not read your particular Mortgage Sale Agreement but I have read one for Preferred, the following is an extract from that document and may be the same as your own.

 

8. perfection of title and further assurance

 

 

8.1 No perfection acts prior to a perfection Event. Each of the issuer and the Trustee undertakes that unless a Perfection Event has occurred and is continuing it will not:

 

(b) take any steps

 

(i) to register itself at the Land Registry or, as the case may be, the Land Registry of Northern Ireland as proprietor or owner of any mortgage of any Property having a registered title or effect any other registration at the Land Registry, or, as the case may be, the Land Registry of Northern Ireland in respect thereof;

 

 

The above is very important as it confirms the lender will remain the registered proprietor of the legal charge, leaving the transfer uncompleted.

 

In the Court of Appeal case of Paragon v Pender 2005

 

109. In my judgment Mr and Mrs Pender's case on this issue is misconceived. It is common ground that Paragon, as registered proprietor of the Legal Charge, retains legal ownership of it. One incident of its legal ownership – and an essential one at that – is the right to possession of the mortgaged property. I can see no basis upon which it can be contended that an uncompleted agreement to transfer the Legal Charge to the SPV (that is to say an agreement under which, pending completion, the SPV has no more than an equitable interest in the mortgage) can operate in law to divest Paragon of an essential incident of its legal ownership. In my judgment as a matter of principle the right to possession conferred by the Legal Charge remains exercisable by Paragon as the legal owner of the Legal Charge (i.e. as the registered proprietor of it), notwithstanding that Paragon may have transferred the beneficial ownership of the Legal Charge to the SPV.

[applecart]

To further my own understanding - is the lender relying in this case on owning an equitable interest, or only selling an equitable interest? If its the former then what happened to the charge by way of legal mortgage and what documents does it have/have not to support an equitable mortgage and not a full legal one?

 

What the lender did was say.....we sold the equitable interest....but we retain the legal interest with a right to possession ..... and relied that the charge registered at HMLR was enough to secure them possession (you remember, the outcome in Pender?).....

 

However, this did not work for them......p.j has pointed out in his defence that the charge is not 'conclusive' for them at all......they cannot rely on it...not when they admit selling the 'equity' or at any time.....

 

The Defence defeats 'Paragon'......by making it clear that it is the Borrower who has conclusive legal right to the title....NOT the Lender.

 

The Lender relied that it had sold the equitable...but retained.... ownership of the 'Legal'.....

 

That would say...the lender had more power than the Borrower had to give.......the defence simply no longer assists the Lender......P.j Had no power to charge the estate with a 'mortgage'.....

 

If the Lender even so much as looks to rely on a 'mortgage' either 'legal' or 'equitable' in any court today......he will come unstuck.....there is no such thing as a 'legal' or 'equitable' mortgage in relation to any registered estate....

 

If the latter (i.e. selling) then any sale of an equitable interest contradicts evidence from mortgage sale agreements I have read which sell interest with full title guarantee. I've only seen a handful but I'm sure there must be an industry standard format for these mortgage sale agreements. Can an interest in a disposition be both (only) equitable and made with a full title guarantee? I don't fully understand this but the two don't seem to pair well... Does this make any sense? Am I raising a valid question? No offence taken if not...

 

The MSA is at last being seen for what it is......remember in Paragon v Pender...Paragon did not submit the MSA in evidence......you should now start to see the effect when and if they do in future.....the same goes for any lender who intends to rely that they can say 'I sold the beneficial interest'......they will be asked to provide proof as to who OWNS the unlawful mortgage...

 

Your questions only lead to the conclusion that you and every borrower has tried to eeek out for years.......the mortgage is sold...the mortgage is unlawful against any registered estate.....the lender must show proof as to who OWNS it.....if they do....they run the risk of having to deal with the invalidity of the entire transaction......CPS may be interested in the blight caused by these lenders upon the Land Registry system in the UK

 

Apple

[applecart]

Hello P.J

 

When you return to Court, you should be prepared to respond to the following point as it may be raised.

 

I have not read your particular Mortgage Sale Agreement but I have read one for Preferred, the following is an extract from that document and may be the same as your own.

 

8. perfection of title and further assurance

 

 

8.1 No perfection acts prior to a perfection Event. Each of the issuer and the Trustee undertakes that unless a Perfection Event has occurred and is continuing it will not:

 

(b) take any steps

 

(i) to register itself at the Land Registry or, as the case may be, the Land Registry of Northern Ireland as proprietor or owner of any mortgage of any Property having a registered title or effect any other registration at the Land Registry, or, as the case may be, the Land Registry of Northern Ireland in respect thereof;

 

 

The above is very important as it confirms the lender will remain the registered proprietor of the legal charge, leaving the transfer uncompleted.

 

In the Court of Appeal case of Paragon v Pender 2005

 

109. In my judgment Mr and Mrs Pender's case on this issue is misconceived. It is common ground that Paragon, as registered proprietor of the Legal Charge, retains legal ownership of it. One incident of its legal ownership – and an essential one at that – is the right to possession of the mortgaged property. I can see no basis upon which it can be contended that an uncompleted agreement to transfer the Legal Charge to the SPV (that is to say an agreement under which, pending completion, the SPV has no more than an equitable interest in the mortgage) can operate in law to divest Paragon of an essential incident of its legal ownership. In my judgment as a matter of principle the right to possession conferred by the Legal Charge remains exercisable by Paragon as the legal owner of the Legal Charge (i.e. as the registered proprietor of it), notwithstanding that Paragon may have transferred the beneficial ownership of the Legal Charge to the SPV.

 

 

There was no sight of the MSA in that case Ben......if this was to be applied in P.J's case against the defence submitted....I'm sure the Judge would have relied on what was decided in Paragon v Pender...

 

Notably......HE DID NOT......

 

So......What now Ben??

 

Apple

[bhall]

You will also find the infamous POA which doesn't have the meaning or effect as the ideas of this thread claim on page 53-55.

 

You will see that the POA is itself an actual deed. However, contrary to the ideas of this thread, it is a deed that is only executed and delivered as a deed by one party and not two.

 

You will find another deed on pages 51-52 which is also executed and delivered by one party and not two.

 

Another can be found on pages 46-47 - another deed that is executed and delivered by one party

 

Another can be found on pages 32-33

 

All of the above are deeds, that are signed and delivered by one party in a document dated 28 November 2007.

 

These are additional points to consider in regard to the ideas in this thread.

[UNRAM]

...it is a deed that is only executed and delivered as a deed by one party and not two. You will find another deed on pages 51-52 which is also executed and delivered by one party and not two. Another can be found on pages 46-47 - another deed that is executed and delivered by one party Another can be found on pages 32-33 All of the above are deeds, that are signed and delivered by one party in a document dated 28 November 2007. These are additional points to consider in regard to the ideas in this thread.

 

...which you have summarised in your prior assessments of unilateral vs bilateral deeds. Please may I ask: why do you persist in your attempts to confuse subscribers to this thread? What do you hope to gain?

[bhall]

It would be a shame if you and others were to run the risk of losing family homes by following Apples fanciful and baseless ideas, especially as seen recently they have taken someone away from the advice posted in the Home Repossession section in the hope beyond hope that Apple is correct.

 

January is not far off now. The sooner it comes the better to stop others from being misled.

[UNRAM]

It would be a shame if you and others were to run the risk of losing family homes by following Apples fanciful and baseless ideas, especially as seen recently they have taken someone away from the advice posted in the Home Repossession section in the hope beyond hope that Apple is correct.

 

January is not far off now. The sooner it comes the better to stop others from being misled.

You are doing it again... What was actually said was that this information would be considered in conjunction with other actions... What do you hope to gain?

[bhall]

I know if my home was at risk, I would not follow Apple's 'advice' on anything related to Property Law.

[bhall]

You are doing it again... What was actually said was that this information would be considered in conjunction with other actions... What do you hope to gain?

 

I hope to gain nothing. Except if I can save at least one person from following Apples advice and potentially incurring thousands of pounds in additional debt in the form of legal fees, and instead they follow the great and sound advice in the Home Repossession section, I will feel my time has been well spent.

 

The Law is the law, the Law is not what Apple tells you it is.

Edited October 19, 2013 by bhall

[applecart]

You will also find the infamous POA which doesn't have the meaning or effect as the ideas of this thread claim on page 53-55.

 

You will see that the POA is itself an actual deed. However, contrary to the ideas of this thread, it is a deed that is only executed and delivered as a deed by one party and not two.

 

You will find another deed on pages 51-52 which is also executed and delivered by one party and not two.

 

Another can be found on pages 46-47 - another deed that is executed and delivered by one party

 

Another can be found on pages 32-33

 

All of the above are deeds, that are signed and delivered by one party in a document dated 28 November 2007.

 

These are additional points to consider in regard to the ideas in this thread.

 

Ben....

 

Is the POA Deeds you refer to....are any of them intending to secure indebtedness?

 

Apple

[applecart]

I hope to gain nothing. Except if I can save at least one person from following Apples advice and potentially incurring thousands of pounds in additional debt in the form of legal fees, and instead they follow the great and sound advice in the Home Repossession section, I will feel my time has been well spent.

 

The Law is the law, the Law is not what Apple tells you it is.

 

Ben

 

Can you answer the question please?......Are any of the POA Deeds intending to secure indebtedness??

 

Apple

[applecart]

Ben

 

Can you answer the question please?......Are any of the POA Deeds intending to secure indebtedness??

 

Apple

 

Ben, if a lender came to defend that the POA is a Deed and that because of this as a speciality it is wholly evidence of the way in which a deed is drawn up.....We ask legitimately ..... ARE ANY OF THE POA DEEDS INTENDING TO SECURE INDEBTEDNESS???

 

Can you ANSWER the question please??

 

Apple

[applecart]

I know if my home was at risk, I would not follow Apple's 'advice' on anything related to Property Law.

 

It is 'Apple's' posts Ben that has attracted more than 68,000 views to the CaG....my posts Ben rely on the LAW.....if my interpretation of the LAW is incorrect...then please tell us why NO BORROWER who has relied on the information in these posts has had a suspended possession order granted???

 

And then.....when we look at the info in the 'other' threads....why is it every single one of those Borrowers are GUARANTEED a 'suspended possession order'.....or worse....loss of their homes??

 

After all....this thread and those too....all rely on the LAW....

 

How come the OUTCOMES from this thread work in favor of the Borrower......and the threads you refer to us......well.....need I say any more??

 

Apple

[applecart]

Now whilst Ben trots off to look at the other repossession threads for further 'guidance'......Let's get on with what concerns us here....VOID Deeds....

 

For those Borrowers who signed Deeds after 1926 BUT BEFORE October 2003.....Let's discuss THIS:

25 Proprietor’s power to create charges.

 

(1)The proprietor of any registered land may by deed—

(a)charge the registered land with the payment at an appointed time of any principal sum of money either with or without interest;

(b)charge the registered land in favour of a building society [F1(within the meaning of the Building Societies Act 1986) in accordance with] the rules of that society.

(2)A charge may be in any form provided that—

(a)the registered land comprised in the charge is described by reference to the register or in any other manner sufficient to enable the registrar to identify the same without reference to any other document;

(b)the charge does not refer to any other interest or charge affecting the land which—

(i)would have priority over the same and is not registered or protected on the register,

(ii)is not an overriding interest.

(3)Any provision contained in a charge which purports to—

(i)take away from the proprietor thereof the power of transferring it by registered disposition or of requiring the cessation thereof to be noted on the register; or

(ii)affect any registered land or charge other than that in respect of which the charge is to be expressly registered,shall be void.

 

The above is taken directly from the LPA 1925 Section 25.......it relates to the POWER of the PROPRIETOR of a REGISTERED ESTATE during the stated period.....

 

CAN ANYONE SEE A POWER TO CHARGE THE REGISTERED ESTATE WITH A MORTGAGE??....................OR DOES IT ACTUALLY SAY essentially that:......ANYTHING OTHER THAN A CHARGE TO SECURE INDEBTEDNESS......."SHALL BE VOID"????

 

Come Now BEN......you get first chance to knock the LAW?????

 

Apple

[applecart]

whhooops....not taken from the LPA 1925.....it is taken from the LRA 1925 section 25.....apologies....darn...got no editing facility

 

Apple

[bhall]

For many many months Apple has spoken about the irrebutable presumption of a deed being delivered prior to the RRO 2005 being based on the signature of the individual

 

Apple argues that after the RRO 2005, the amendments mean that this irrebutable presumption has been repealed.

 

There are two problems with the above. Firstly in terms of an individual no such irrebutable presumption ever existed. This was a fiction created by Apple.

 

The above was confirmed by the Law Commission in a document previously posted to this thread.

 

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

 

Page 113

 

"11.67 Fourthly, there is no statutory presumption of delivery equivalent to section 36A(6) when a deed is executed by an individual."

 

The second is that irrebutable presumption actually only applied to companies when they granted a deed - s.36A(6) of the companies act 1985 and it was this that was repealed by the RRO 2005

 

Apple has created a irrebutable presumption relating to a deed executed by an individual then goes on to tell how it has been repealed, when one in fact never existed.

 

This is a mistake by Apple that goes to the very core of the fanciful ideas that have been posted on this thread over and over again.

 

Those fanciful ideas can be posted a thousand times, they were wrong when they were first posted and are still wrong today.

 

This is just one example of the numerous flaws in the repeated posts by Apple on property law.

 

I am personally shocked how someone with so little actual knowledge considers that they are in a position to give advice to others that could result in them losing their homes or incur thousands of pounds of additional debt.

 

But then again Apple has nothing to loose by posting these fanciful ideas.

[TimetogoRAM]

For many many months Apple has spoken about the irrebutable presumption of a deed being delivered prior to the RRO 2005 being based on the signature of the individual

 

Apple argues that after the RRO 2005, the amendments mean that this irrebutable presumption has been repealed.

 

There are two problems with the above. Firstly in terms of an individual no such irrebutable presumption ever existed. This was a fiction created by Apple.

 

The above was confirmed by the Law Commission in a document previously posted to this thread.

 

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

 

Page 113

 

"11.67 Fourthly, there is no statutory presumption of delivery equivalent to section 36A(6) when a deed is executed by an individual."

 

The second is that irrebutable presumption actually only applied to companies when they granted a deed - s.36A(6) of the companies act 1985 and it was this that was repealed by the RRO 2005

 

Apple has created a irrebutable presumption relating to a deed executed by an individual then goes on to tell how it has been repealed, when one in fact never existed.

 

This is a mistake by Apple that goes to the very core of the fanciful ideas that have been posted on this thread over and over again.

 

Those fanciful ideas can be posted a thousand times, they were wrong when they were first posted and are still wrong today.

 

This is just one example of the numerous flaws in the repeated posts by Apple on property law.

 

I am personally shocked how someone with so little actual knowledge considers that they are in a position to give advice to others that could result in them losing their homes or incur thousands of pounds of additional debt.

 

But then again Apple has nothing to loose by posting these fanciful

 

Ben you have posted a link to a 204 page document. Wot page does this refer to???

[applecart]

Ben.....This is possibly one of the only valid points you have made so far.....I'm pleased we are finally getting to the bottom of this...but......correct me if I am wrong.........

 

Does para "11.67" not come under the heading of "PART XI - CRITICISMS OF THE PRESENT LAW" in the document you posted up???

 

Apple

[applecart]

Hi TimetogoRam

 

See page '113'

 

Apple

[bhall]

Another fanciful idea posted in this thread is that a borrower is unable (since LRA 2002) to grant a lender a legal mortgage - The following is intended for students but will serve here to dispell the myth created by Applecart

 

http://lawnotesh1.blogspot.co.uk/2012/06/mortgages.html?m=1

 

Legal Mortgages of Registered titles under the LRA 2002

 

By virtue of SECTION 23(1) of LRA 2002, the legal charge is the only permissible method of creating a legal mortgage of a registered freehold or leasehold estate. SECTION 23(1) contemplates two ways a registered title may be 'charged' so as to create legal mortgage: first is the usual 'charge by deed expressed to be by way of legal mortgage'; and the second is the less common method of simply charging the land with the payment of money.

 

SECTION 87 of LPA 1925, the charge must be made by deed, and it must be expressed to be by way of legal mortgage: it must declare itself to be a 'legal mortgage made by charge'. This section makes it clear that a chargee obtains the same protection powers and remedies as if the mortgage has been created by a long lease of 3000 years in the old way. For both borrowers and lenders, the charge represents a quick, easy, economical and simple way of mortgaging land.

 

 

This document also serves to explain the difference between a mortgage by demise / sub-demise (long lease / long sub-lease method) and a mortgage by legal charge.

 

Even though they are covered by different sections of the LPA 1925 (s.85 Demise, s.86 sub-demise and s.87 legal charge and the definitions of that act clearly stating "legal mortgage means a mortgage by demise or sub demise or a charge by way of legal mortgage) Applecart asserts they are they same thing, when they clearly aren't.. Just another fanciful idea which ignores the law.

Edited October 19, 2013 by bhall

[bhall]

In this thread the owner of the legal estate power's are continually confused with the owner of the legal charge power's for the sole reason to support the fanciful ideas of this thread, whilst ignoring the obvious.

[UNRAM]

Another fanciful idea posted in this thread is that a borrower is unable (since LRA 2002) to grant a lender a legal mortgage - The following is intended for students but will serve here to dispell the myth created by Applecart

 

http://lawnotesh1.blogspot.co.uk/2012/06/mortgages.html?m=1

 

Legal Mortgages of Registered titles under the LRA 2002

 

By virtue of SECTION 23(1) of LRA 2002, the legal charge is the only permissible method of creating a legal mortgage of a registered freehold or leasehold estate. SECTION 23(1) contemplates two ways a registered title may be 'charged' so as to create legal mortgage: first is the usual 'charge by deed expressed to be by way of legal mortgage'; and the second is the less common method of simply charging the land with the payment of money.

 

SECTION 87 of LPA 1925, the charge must be made by deed, and it must be expressed to be by way of legal mortgage: it must declare itself to be a 'legal mortgage made by charge'. This section makes it clear that a chargee obtains the same protection powers and remedies as if the mortgage has been created by a long lease of 3000 years in the old way. For both borrowers and lenders, the charge represents a quick, easy, economical and simple way of mortgaging land.

 

 

This document also serves to explain the difference between a mortgage by demise / sub-demise (long lease / long sub-lease method) and a mortgage by legal charge.

 

Even though they are covered by different sections of the LPA 1925 (s.85 Demise, s.86 sub-demise and s.87 legal charge and the definitions of that act clearly stating "legal mortgage means a mortgage by demise or sub demise or a charge by way of legal mortgage) Applecart asserts they are they same thing, when they clearly aren't.. Just another fanciful idea which ignores the law.

 

...full title guarantee?

[TimetogoRAM]

Stupid me.. Thanks!

 

This is so contradictory it's a joke. It talks about. Presumption of delivery and then more or less says when the wording says 'questionable whether a presumption of delivery is necessary' in pg113 11.67??? That sentence needs to make up its mind!!

[applecart]

Another fanciful idea posted in this thread is that a borrower is unable (since LRA 2002) to grant a lender a legal mortgage - The following is intended for students but will serve here to dispell the myth created by Applecart

 

http://lawnotesh1.blogspot.co.uk/2012/06/mortgages.html?m=1

 

Legal Mortgages of Registered titles under the LRA 2002

 

By virtue of SECTION 23(1) of LRA 2002, the legal charge is the only permissible method of creating a legal mortgage of a registered freehold or leasehold estate. SECTION 23(1) contemplates two ways a registered title may be 'charged' so as to create legal mortgage: first is the usual 'charge by deed expressed to be by way of legal mortgage'; and the second is the less common method of simply charging the land with the payment of money.

 

SECTION 87 of LPA 1925, the charge must be made by deed, and it must be expressed to be by way of legal mortgage: it must declare itself to be a 'legal mortgage made by charge'. This section makes it clear that a chargee obtains the same protection powers and remedies as if the mortgage has been created by a long lease of 3000 years in the old way. For both borrowers and lenders, the charge represents a quick, easy, economical and simple way of mortgaging land.

 

 

This document also serves to explain the difference between a mortgage by demise / sub-demise (long lease / long sub-lease method) and a mortgage by legal charge.

 

Even though they are covered by different sections of the LPA 1925 (s.85 Demise, s.86 sub-demise and s.87 legal charge and the definitions of that act clearly stating "legal mortgage means a mortgage by demise or sub demise or a charge by way of legal mortgage) Applecart asserts they are they same thing, when they clearly aren't.. Just another fanciful idea which ignores the law.

 

Aaaaaahhhh....at last..this is what I call 'constructive' Ben....why didn't you post it up before...... : )

 

Any more, for any more?.....because, I am beginning to see now...where it is we have a 'grey' area in our understanding of the LAW....

 

 

Apple

[applecart]

In this thread the owner of the legal estate power's are continually confused with the owner of the legal charge power's for the sole reason to support the fanciful ideas of this thread, whilst ignoring the obvious.

 

This too now makes sense.....see Ben, when you post 'constructive' detail....even I stop and take notice of you : )

 

Any more?..... I see now why you find this thread 'fanciful' and 'idealistic'....

 

 

Apple