Repossession questioned by deeds not being signed

[applecart]

Hi Apple all my letters about arrears, mortgage and threats of court action have come from c & g, all my complaints about my PPI have been from lloyds claims but the court claim is lloyds tsb bank plc so it is lloyds taking me to court, for some reason i assumed lloyds owned c & g

 

This is brilliant!!! : )

 

I've been waiting for this.....

 

Bear in mind we are not Defending the PPI - ok?

 

I do not believe Lloyds have a right to bring this claim against you at all....not if they did not get you to sign a deed of variation???

 

so, I have re-drafted the Defence, Again it does not constitute legal advise and is only a draft.....please see below:

 

It is denied that the Claimant has a lawful claim to possession of the property known as [enter address of the property here] as alleged.

 

It is submitted that it is within the provisions of the LPA 1925 to find that the Defendant is the registered proprietor of the freehold estate and this fact is borne out from the register held at HMLR.

 

For the benefit of doubt, It is the Defendant who has power to secure indebtedness to the favour of [enter lenders name here] by virtue of being the owner of the said registered estate.

 

It is submitted that the only power that the Defendant had to secure the said indebtedness is found within the LPA 1925 section 25, (1) (a); the power relates to the grant of a Charge to secure principle monies with or without interest only.

 

This is not a case of an estate that was being registered for the first time. The Defendant has been the registered proprietor with title [enter either ‘Absolute’, ‘Possessory’ or ‘Qualified’ here] since [enter the date you first became the proprietor of the legal estate here]. A copy of the title register is attached and marked 'exhibit A' [attach a copy of the title register]

 

In this case, the Claimant is noted on the title register as the proprietor of the registered charge dated in 1995. The Claimants charge is dated in 2007.

 

In this case, the official copy of the deed remains between the Defendant and a company called Cheltenham and Glouscester (C & G). The Defendant has at no time signed a deed of variation and has yet to learn how it is that the Claimants name has been entered on the title to the registered estate.

 

In any event the Defendant had no power to grant a mortgage of the registered estate to the favour of C& G or the Claimant or by virtue of the LRA 1925 section 25, (2):

 

“(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”

 

In this case the deed grants the Claimant more power than that which the Defendant had to give, according to the LRA 1925 section 25 (3) such a finding would not be valid:

 

“(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 C & G Deed expresses terms such as ‘charge by way of legal mortgage’ and 'full title guarantee', both of which would purport that C & G and by virtue of which the Claimant purports to have derived more power than the Defendant in this case had to give; against the intent of the Defendant and statutory provision purporting to be a lawful means of securing money with or without interest against the Defendants registered legal estate.

 

It is submitted that the C & G deed in evidence, has been approved by HMLR for charging purposes only. It is the case that HMLR’s approved form of charge does not look to the validity of the underlying agreement between C & G and the Defendant or indeed any legal relationship between the Claimant and the Defendant.

 

Accordingly, the Defendant knows of no statutory provision upon which the court can act to order possession of the property to the favor of the Claimant. It is submitted that it cannot be relied that an approved form of charge noted on the register to the favor of the Claimant by HMLR is enough to assist the Claimants claim for possession.

 

It is the LPA 1925 section 52(1) that provides the statutory provision upon which any claim by C & G or the Claimant would rely before it can be said that the deed acts to lawfully secure the property in a right of possession to the favour of C & G or the Claimant.

 

It is understood that an intent to secure indebtedness must be conducted by means of a valid deed; it is the legislators intent that no interest will be created or disposed of to the favour of C & G or the Claimant and no legal right to possession should be party to an order of the court without a valid deed or where more power than the Defendant had to give is in evidence.

 

It is submitted that the Claimants charge is void; and that the cause of action is misplaced, given that a deed in relation to land is a speciality contract to secure indebtednes; for its validity it must a) be signed by the Defendant and comply with LPMPA 1989 section 1 (3) and; b) be executed by C & G or in this case a deed of variation in favor of the Claimant; and in either event it must comply with section 74 (1) and (5) of the LPA 1925.

 

Contrary to the Claimants beliefs; it is only in relation to un-registered land that C & G or the Claimant would be legally entitled to mortgage land and lawfully be entitled to delay the execution of the deed until receipt of the total sum repaid in full.

 

There is also consideration to be given to C & G’s and or the Claimants fiduciary duty to comply with its Memorandum and Articles of Association in relation to execution of the deed, yet, in this case there was no space for C & G to assume the deed and no deed of variation to the favor of the Claimant. It is simply is not there. An official copy of the C & G deed is attached and marked 'exhibit B' [attach copy of the deed]

 

The Defendant has therefore taken steps in the limited time allowed to make application to the First Tier Tribunal (Property Chamber) for a determination of the C & G deed and determination as to the lawfulness of the purported C & G mortgage.

 

The application to the First Tier Tribunal (Property Chamber) more fully sets out the issues to do with the C & G deed and the Claimants purported cause of action said to have derived by virtue of it. The Defendant believes that the deed is apt to be set aside.

 

It is humbly relied that the court do acknowledge the issues in this case along with the steps taken to remedy the issues to the extent that this case be adjourned until a determination is made by the First Tier Tribunal (Property Chamber).

 

STATEMENT OF TRUTH

 

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

 

Name: [enter your name/s here] Date: [enter the date here]

 

Signed: [put your signature/s here]

 

Again, if you see something that does not 'read' correctly...or if there is something that you think I have missed out....please let me know...ok?

 

Apple

[applecart]

Hi Apple, when referring to the lender do I put lloyds who are bringing the claim or c&g who are on the deed?

 

I've re-drafted the Defence ....so; Put 'LLOYDS' name in as and where you see the " [ ]"

 

Hope this helps?

 

Apple

[marika41]

Apple it says on my title absolute but the date before it says proprietor my name is 26.02.1999 yet I remortgaged in 1995

[applecart]

ooooh Marika....just spotted this too....

 

"In this case the deed grants the Claimant more power than that which the Defendant had to give, according to the LRA 1925 section 25 (3) such a finding would not be valid:"

 

Can you amend it slightly to this:

 

In this case the deed between the Defendant and C & G purports to grant C & G more power than the Defendant had to give upon which the Claimants claim appears to rely, when; according to the LRA 1925 section 25 (3) such a finding would not be valid:

 

Told you it was 'draft'....

 

We need to tweak it if necessary until you are happy and it makes logical sense throughout......ok?

 

Apple

[applecart]

Apple it says on my title absolute but the date before it says proprietor my name is 26.02.1999 yet I remortgaged in 1995

 

Put in "1995" if you have proof of the 're-mortgage'...if you do...you can attach the proof as evidence.....

 

but the other way around that is to 'tweak' the paragraph like this:

 

FROM THIS:

 

This is not a case of an estate that was being registered for the first time. The Defendant has been the registered proprietor with title [enter either ‘Absolute’, ‘Possessory’ or ‘Qualified’ here] since [enter the date you first became the proprietor of the legal estate here]. A copy of the title register is attached and marked 'exhibit A' [attach a copy of the title register]

 

TO:

 

This is not a case of an estate that was being registered for the first time. The Defendant has been the registered proprietor with title [enter either ‘Absolute’, ‘Possessory’ or ‘Qualified’ here] since 1995 and has been registered as such on the title since xx xx 1999. A copy of the title register is attached and marked 'exhibit A' [attach a copy of the title register]

 

Hope this helps?

 

Apple

[marika41]

ooooh Marika....just spotted this too....

 

"In this case the deed grants the Claimant more power than that which the Defendant had to give, according to the LRA 1925 section 25 (3) such a finding would not be valid:"

 

Can you amend it slightly to this:

 

In this case the deed between the Defendant and C & G purports to grant C & G more power than the Defendant had to give upon which the Claimants claim appears to rely, when; according to the LRA 1925 section 25 (3) such a finding would not be valid:

 

Told you it was 'draft'....

 

We need to tweak it if necessary until you are happy and it makes logical sense throughout......ok?

 

Apple

 

so i mention lloyds and c&g in this?

[marika41]

Put in "1995" if you have proof of the 're-mortgage'...if you do...you can attach the proof as evidence.....

 

but the other way around that is to 'tweak' the paragraph like this:

 

FROM THIS:

 

This is not a case of an estate that was being registered for the first time. The Defendant has been the registered proprietor with title [enter either ‘Absolute’, ‘Possessory’ or ‘Qualified’ here] since [enter the date you first became the proprietor of the legal estate here]. A copy of the title register is attached and marked 'exhibit A' [attach a copy of the title register]

 

TO:

 

This is not a case of an estate that was being registered for the first time. The Defendant has been the registered proprietor with title [enter either ‘Absolute’, ‘Possessory’ or ‘Qualified’ here] since 1995 and has been registered as such on the title since xx xx 1999. A copy of the title register is attached and marked 'exhibit A' [attach a copy of the title register]

 

Hope this helps?

 

Apple

 

Then if I can find a copy of my original mortgage I can put 1990 then as that is when I first moved into my home?

[applecart]

so i mention lloyds and c&g in this?

 

Hi Ya

 

yes, take out the paragraph in 'blue' and replace with the one in "red" please : )

 

 

 

Apple

[applecart]

Then if I can find a copy of my original mortgage I can put 1990 then as that is when I first moved into my home?

 

Yes, I agree .....if that is the case..... : )

 

Apple

[marika41]

Yes, I agree .....if that is the case..... : )

 

Apple

 

Thank you very much for the help Apple I am going to go and look for my original mortgage in the attic to see if I have it but I have a feeling it went when I had a burst water tank in the late 90s i lost a lot of paperwork,but you never know....

[marika41]

i do not know what a deed of variation is so i do not think i could have signed one. I have been looking for my original mortgage which I cannot find but I have found all the searches etc and amongst them is a letter from c& g sent in 2005 saying they are returning my title deeds as they do not have to hold them now, I cannot see any deeds but on the charge certificate it has slightly different wording. I do not know if this is relevant or not so thought I would run it by you to get your opinionA) which is the property register is exactly the same as in my copy of the title register from the LR except for the sub heading which says, "containing the description of the registered land and the estate comprised in the title" my new copy says "this register describes the land and estate comprised in the title" and in B) the proprietorship register includes the word land which is not mentioned in my official copy it says "stating nature of the title,name and address of the proprietor of the land and any entries affecting the right of disposal" on the new copy it says this register specifies the class of title and identifies the owner.it contains any entries that affect the right of disposal and then on C) The charges register it says "containing charges,incumbrances etc. adversely affecting the land while my new copy says this register contains any charges and other matters that affect the land.Does any of it matter or is it just a change of wording?

[marika41]

Hi AppleI do not understand this bit, is exhibit A the title register as well as proof I have lived here since 1990?This is not a case of an estate that was being registered for the first time. The Defendant has been the registered proprietor with title Absolute since April 1990 and has been registered as such on the title since 26.02. 1999. A copy of the title register is attached and marked 'exhibit A' [attach a copy of the title register]

[marika41]

Just found another sheet of paper with dates for each paragraph from 28.3.95 through to 25th july 1995 not sure if it is relevent? top paragraph is, "abstract of title of transfer of engagements of leeds permanent building society to halifax building society" Then it goes on about transferors wishes to transfer all its engagements to the transferee, then mentions deeds and goes on for 2 pages and at the end it says "note: this abstract of title has been filed at H.M Land registry under reference 101/111/19E and need not be sent with any application.this was around the time I remortgaged and my original mortgage was with the Leeds but I went with C&G not the Halifax, but when I was complaining about my PPI with lloyds claim dept. I had to sign a letter to allow them to release my details to the halifax which I at first refused as far as I was aware I had no dealings with the halifax when I rang to ask why i was told they had bought C&G years ago. Is any of this relevant or am I getting sidetracked with these old papers I have found?

[applecart]

i do not know what a deed of variation is so i do not think i could have signed one. I have been looking for my original mortgage which I cannot find but I have found all the searches etc and amongst them is a letter from c& g sent in 2005 saying they are returning my title deeds as they do not have to hold them now, I cannot see any deeds but on the charge certificate it has slightly different wording. I do not know if this is relevant or not so thought I would run it by you to get your opinionA) which is the property register is exactly the same as in my copy of the title register from the LR except for the sub heading which says, "containing the description of the registered land and the estate comprised in the title" my new copy says "this register describes the land and estate comprised in the title" and in B) the proprietorship register includes the word land which is not mentioned in my official copy it says "stating nature of the title,name and address of the proprietor of the land and any entries affecting the right of disposal" on the new copy it says this register specifies the class of title and identifies the owner.it contains any entries that affect the right of disposal and then on C) The charges register it says "containing charges,incumbrances etc. adversely affecting the land while my new copy says this register contains any charges and other matters that affect the land.Does any of it matter or is it just a change of wording?

 

Hi Marika41

 

You will find information on Deeds of Variation in HMLR practice guide 29; I've taken this extract from it for your informaiton:

 

12 Deeds of variation of a registered charge

 

12.1 General

 

An application to register a deed of variation must be made under cover of an application form AP1.

 

We will retain the original deed, unless the deed is in a form previously approved by us and the lender has requested that original deeds should be returned, or if the deed has not been previously approved, where a certified copy of the deed has been supplied.

 

Our Commercial Arrangements Section at Land Registry Head Office will continue to approve deeds of variation. Please see Practice Guide 30 – Approval of mortgage documentation for further information.

 

It is not possible to apply in a deed of variation for a restriction or for an entry to show that a lender is under an obligation to make further advances. If these entries are required, separate applications must be made in forms RX1 and CH2 respectively.

 

12.2 Execution

 

Although the borrower must execute the deed of variation, there is no requirement for the lender to do the same. We will accept that the lender will be bound by the terms of the variation if the deed is either lodged by the lender or a practitioner acting on behalf of the lender.

 

R.113, LRR 2003 requires that an application to register a deed of variation must be made with the consent of the proprietor of any registered charge (and the proprietor of any sub-charge derived directly or indirectly from such a charge) of equal or inferior priority to the charge being varied, if the other lender is adversely affected by the terms of the variation, unless that proprietor has executed the deed itself or its consent is not required under the terms of its charge or sub-charge.

 

Our view is that alterations of the following types do not adversely affect a charge (and sub-charge thereof) with equal or inferior priority.

 

A reduction in the interest rate.

 

A reduction in the capital debt.

 

However, we consider that any alterations that either:

 

increase the interest rate

 

increase the capital

 

extend the term of the earlier charge

 

create an obligation to make further advances, to be such as may adversely affect any charge (and any sub-charge thereof) with equal or inferior priority.

 

 

When you inform the District Judge in the Defence that you did not sign a deed of variation...you are letting him know that although Lloyds are bringing this claim against you for possession....they have no evidence of a relationship between you and them......the deed of variation would have been sent by HMLR if they had one.....they don't.....they do not have the right to bring proceedings against you.....

 

Charge certificates are obsolete...ever since January 2010....I shouldn't worry too much about the documents sent to you by C 7 G in 2005..Do keep them though.....they may just come in handy....

 

Because of electronic registration...paper deeds held were either destroyed by lenders or sent on to borrowers...the official copies that you have been sent are intended to say and incorporate all that the paper deeds you hold say.....

 

We do not need to make mention of them per se in the Defence I don't think : )

 

Apple

[applecart]

Hi AppleI do not understand this bit, is exhibit A the title register as well as proof I have lived here since 1990?This is not a case of an estate that was being registered for the first time. The Defendant has been the registered proprietor with title Absolute since April 1990 and has been registered as such on the title since 26.02. 1999. A copy of the title register is attached and marked 'exhibit A' [attach a copy of the title register]

 

Exhibit 'A' will be the official copy of the title register you got from HMLR this week.

 

Exhibit 'A' can also show a copy of any proof that shows you have lived there before the date shown on the title register too.

 

Hope this helps?

 

Apple

[applecart]

Just found another sheet of paper with dates for each paragraph from 28.3.95 through to 25th july 1995 not sure if it is relevent? top paragraph is, "abstract of title of transfer of engagements of leeds permanent building society to halifax building society" Then it goes on about transferors wishes to transfer all its engagements to the transferee, then mentions deeds and goes on for 2 pages and at the end it says "note: this abstract of title has been filed at H.M Land registry under reference 101/111/19E and need not be sent with any application.this was around the time I remortgaged and my original mortgage was with the Leeds but I went with C&G not the Halifax, but when I was complaining about my PPI with lloyds claim dept. I had to sign a letter to allow them to release my details to the halifax which I at first refused as far as I was aware I had no dealings with the halifax when I rang to ask why i was told they had bought C&G years ago. Is any of this relevant or am I getting sidetracked with these old papers I have found?

 

Hi Hun ; )

 

You are getting 'side tracked'.......non of the companies mentioned are actually showing on your title register right now....so, I should ignore them for now...do not use any of that info as 'evidence' for your defence.......do keep it though...it may come in handy in time to come : )

 

Hope this helps?

 

Apple

[IS IT ME?]

Hi pj

I don't think the PM is working but you could try it.

See apple's working hard again those tea bags must be tea-less now lol

[bhall]

Hi pj

I don't think the PM is working but you could try it.

See apple's working hard again those tea bags must be tea-less now lol

 

I think Apple needs to lay off the tea, it must be too strong for Apple and Apple can't handle it. Apple you better start drinking water instead. Deed of Variation lol ;-)

 

Marika41 - Cheltenham & Gloucester became a bank 1995 and agreed to be taken over by Lloyd's in 1997.

 

As usual Apple has the best intentions but the information posted is very wide off the mark.

 

Deed of Variation isn't relevant

 

Do yourself a favour and call the Land Registry and ask them if a TR4 form or even possibly a TR3 form has ever been submitted transferring the charge from C&G to Lloyd's. Neither form requires your signature.

 

This is an example of a TR4 form

 

http://www.landregistry.gov.uk/_media/downloads/forms/TR4.pdf

[IS IT ME?]

Cheltenham & Gloucester became a bank 1995 and agreed to be taken over by Lloyd's in 1997. NEVER BEEN A BANK

Lender have not used the TR forms for years and that's why it is as it is. lol

[bhall]

Cheltenham & Gloucester became a bank 1995 and agreed to be taken over by Lloyd's in 1997. NEVER BEEN A BANK

Lender have not used the TR forms for years and that's why it is as it is. lol

 

Is It Me?

 

In regard to the TR forms, the Land Registry stopped using the TR3 form in 2008. However, if you read Marika's posts instead of jumping the gun in an attempt to show that I am wrong, you will see the dates she has mentioned .

 

The TR4 form, is still used today. To help you with your knowledge ;-)

 

http://www.landregistry.gov.uk/professional/guides/practice-guide-32

 

The above practice guide was updated in October 2013. Please read the section about which forms to use (section 5) and for the benefit of others please can you confirm which form it says to use

[bhall]

In terms of C&G never being a bank, again you have jumped the gun in an attempt to prove me wrong instead of checking your facts

 

http://www.bbc.co.uk/gloucestershire/content/articles/2009/06/09/cheltenham_gloucester_feature.shtml

 

"Building societies also were given the right to convert full bank status - triggering a wave of demutualisations in the late 1980s and early 1990s.

 

C&G converted in 1995 and became part of Lloyds, just months before Lloyds bought the TSB group."

 

My only mistake was to say that C&G agreed to be taken over in 1997 instead of 1995. However typo's do happen and unlike some here, I am not to big to admit when I made a mistake ;-)

[bhall]

Markia

 

Is It Me?'s poor attempt to prove me wrong has made me consider something.

 

Depending upon when the transfer took place, the transfer may have been made by the forerunner to the TR forms. To be better safe than sorry, call the Land Registry and ask them if there is any record of any transfer request being received. Either way, forget about Deed of Variations, they are used mostly for varying the terms of the deed and not the parties to the deed.

[bhall]

Marika

 

I am not sure of exactly when in 1995 you remortgaged but according to the Building Society Association

 

http://www.bsa.org.uk/consumer/factsheets/100010.htm

 

 

C&G was taken over by Lloyd's on 1 August 1995. So might be an idea to check the date of your mortgage

 

It looks like according to companies house, C&G became a PLC on 17 July 1995, just a matter of a couple of weeks before becoming part of Lloyd's

Edited October 24, 2013 by bhall

[bhall]

Is It Me?

 

In regard to the TR forms, the Land Registry stopped using the TR3 form in 2008. However, if you read Marika's posts instead of jumping the gun in an attempt to show that I am wrong, you will see the dates she has mentioned .

 

The TR4 form, is still used today. To help you with your knowledge ;-)

 

http://www.landregistry.gov.uk/professional/guides/practice-guide-32

 

The above practice guide was updated in October 2013. Please read the section about which forms to use (section 5) and for the benefit of others please can you confirm which form it says to use

 

 

As I know you have a hang up about questions not being answered Is It Me?, I will answer this one myself

 

5 What forms should I use?

 

It depends on the nature of the transaction.

 

Where the land is wholly registered, use either:

 

form TR4 – for a transfer of a portfolio of registered charges, or

 

The above was updated in October 2013 (that would this month)

[bhall]

Hi Apple It is c&g on the deed but on the title register it is lloyds bank plc dated 30/10/2007It actually says1. a conveyance dated 21 march 1895 made between john coulston james cardwell and william george hardman contains restricted covenents but neither the original deed nor a certified copy or examined abstract thereof was produced on first registration.2. 05.09.1995 REGISTERED CHARGE dated 11 august 1995 to secure the moneys including the further advances therin mentioned.3. (30.10.2007) Proprietor llyods bank plc (co.Regn.No. 2065) of registrations,secured assets,barnett way,gloucester GL4 3RL which by the way is the address of c&g. I think lloyds have taken them overI do not know if c& g are still around, they stopped being a building society 31 july 1995 according to the deed

 

 

Ok just found the info in this post the charge is dated 11 August 1995.

 

".2. 05.09.1995 REGISTERED CHARGE dated 11 august 1995 to secure the moneys including the further advances therin mentioned."

 

However, according to the above the proprietor is dated 30.10.2007.

 

3. (30.10.2007) Proprietor lloyds bank plc (co.Regn.No. 2065) of registrations,secured assets,barnett way,gloucester GL4 3RL

 

It is hard to say without looking at the actual documentation, but you might find that the charge was transferred from C&G to Lloyd's in October 2007. So going back to what I have previously posted, call the Land Registry and ask about any tr3/tr4 form received.

Edited October 24, 2013 by bhall