Repossession questioned by deeds not being signed

[Peterbard]

That's the spirit Sequenci; It would be nice if others would take your lead ; )

 

Hopefully if they do; we can then get on with the serious issue that is the subject matter of the OP's thread.

 

Apple

 

Quite right , perhaps you could give a serious response to the points raised in post 5131, as they are among the many which completely destroy your stated argument.

 

Or perhaps you could produce some equally convincing authority to prove the points you made.(not your opinion)

[applecart]

Quite right , perhaps you could give a serious response to the points raised in post 5131, as they are among the many which completely destroy your stated argument.

 

Or perhaps you could produce some equally convincing authority to prove the points you made.(not your opinion)

 

 

Hi Dodgeball

 

Contrary to that which is posted in #5131...if you look at lamb you will find that whilst Butler stated the Law of section 1 ....the actual case (appeal) was taken forward only on section 2 and section 27 only.

 

There is no need for me to provide anything else really. It is there for those interested enough to see.

 

Apple

[Peterbard]

Hi Dodgeball

 

Contrary to that which is posted in #5131...if you look at lamb you will find that whilst Butler stated the Law of section 1 ....the actual case (appeal) was taken forward only on section 2 and section 27 only.

 

There is no need for me to provide anything else really. It is there for those interested enough to see.

 

Apple

 

I think over and above any interpretation is the fact that the action failed isn't it ?

[Peterbard]

And again Apple you are stating your interpretation of events, surely there must be authorities somewhere that share your views, there seem to be plenty that dispute them.

[applecart]

I think over and above any interpretation is the fact that the action failed isn't it ?

 

There is no interpretation. The case was taken forward on S2 and s27.....s2 does not apply to deeds and s.27 (f) has nothing to do with a sub-charge.

 

The action failed because as Butler says - the argument when fused and framed in the form it was presented and 'allowed' to move forward was 'illusionary'.

 

Apple

[bhall]

I think over and above any interpretation is the fact that the action failed isn't it ?

 

Hello DB

 

You are supposed to ignore the fact that the Judge relied upon s.1 as one reason of many to dismiss the appeal.

 

 

"My reasons for such dismissal are as follows"

 

 

"That deed created the mortgage. It was an actual mortgage that satisfied s.53 of the 1925 Act and s.1 of the 1989 Act...

 

..... The deed made it clear on its face that it was intended to be a deed, it was signed and it was delivered. A deed executed after 31st July 1990 need not be sealed: see s.1(1)(b) of the 1989 Act. 'Delivery' for this purpose simply means the signing of the deed with the intention to be bound by its contents and not the physical sending or arrival of the document"

 

DB you also have to ignore all the 'by the way of legal mortgage' too

 

 

* the above is my attempt at sarcasm

[applecart]

And again Apple you are stating your interpretation of events, surely there must be authorities somewhere that share your views, there seem to be plenty that dispute them.

 

n the contrary -I have not seen any authority that takes into account the RRO - given Lamb did not procede on s.1 nor fergus either - nor - Helden and Eaglestar - therefore it cannot be said that you have authority that disputes it - all lead on s.2 - of unless, you have?

 

In fact, I posted earlier - s.2 and queried if there had in fact been an oversight of the LAW - s.2 appears to take into account the 'terms and conditions - to suggest that the terms and conditions should be signed by both parties??

 

Apple

[Peterbard]

Hi Ben yes I know, the provision that was being relied on was one that was applicable only to contracts for disposition of interests not to deeds which transfer property, the later come under section one and only need to be signed by the borrower.

 

I was trying to get apple to produce some authority which backs up her stance inn this, some case law or statute which has been shown to operate in the way she says,We know that there isn't any, because basically it doesn't, I thought that perhaps if she were to stand back and realize the fact a light may go on somewhere.

[applecart]

Hello DB

 

You are supposed to ignore the fact that the Judge relied upon s.1 as one reason of many to dismiss the appeal.

 

 

"My reasons for such dismissal are as follows"

 

 

"That deed created the mortgage. It was an actual mortgage that satisfied s.53 of the 1925 Act and s.1 of the 1989 Act...

 

..... The deed made it clear on its face that it was intended to be a deed, it was signed and it was delivered. A deed executed after 31st July 1990 need not be sealed: see s.1(1)(b) of the 1989 Act. 'Delivery' for this purpose simply means the signing of the deed with the intention to be bound by its contents and not the physical sending or arrival of the document"

 

DB you also have to ignore all the 'by the way of legal mortgage' too

 

 

* the above is my attempt at sarcasm

 

looks to be that his only reference to s.1 was to do with the fact it no longer need to be 'sealed' then...... the actual appeal moved forward on s.2 and s.27

 

Apple

[applecart]

Hi Ben yes I know, the provision that was being relied on was one that was applicable only to contracts for disposition of interests not to deeds which transfer property, the later come under section one and only need to be signed by the borrower.

 

I was trying to get apple to produce some authority which backs up her stance inn this, some case law or statute which has been shown to operate in the way she says,We know that there isn't any, because basically it doesn't, I thought that perhaps if she were to stand back and realize the fact a light may go on somewhere.

 

ahhh -gotcha - Beer Garden - sorry, I'm not interested. Good Night : )

 

Apple

[Peterbard]

 

In fact, I posted earlier - s.2 and queried if there had in fact been an oversight of the LAW - s.2 appears to take into account the 'terms and conditions - to suggest that the terms and conditions should be signed by both parties??

 

Apple

Yes section 2 would have to do with "t and Cs" because it is the contract, not the deed.

[Peterbard]

ahhh -gotcha - Beer Garden - sorry, I'm not interested. Good Night : )

 

Apple

 

No authority then, perhaps you will find some in the beer garden

[bhall]

Something for you to consider DB from the Fergus case

 

 

 

"8. The provisions of Section 85 of the law of property act 1925 apply to registered land as a charge expressed to be by way of legal mortgage is a disposition within section 23(1) (a) of the land Registration Act 2002 and by section 27 and schedule 2 of the 2002 Act a legal charge is required to be completed by registration"

 

"registered land as a charge expressed to be by way of legal mortgage is a disposition within section 23(1) (a) of the land Registration Act 2002"

[bhall]

looks to be that his only reference to s.1 was to do with the fact it no longer need to be 'sealed' then...... the actual appeal moved forward on s.2 and s.27

 

Apple

 

I did put it in bold, hoping you would not miss it

 

" That deed created the mortgage. It was an actual mortgage that satisfied s.53 of the 1925 Act and s.1 of the 1989 Act..."

 

The judge said that it satisfied s.1

 

He also said

 

. 'Delivery' for this purpose simply means the signing of the deed with the intention to be bound by its contents and not the physical sending or arrival of the document"

 

There is of course also this little snipet

 

[bhall]

Hi Ben yes I know, the provision that was being relied on was one that was applicable only to contracts for disposition of interests not to deeds which transfer property, the later come under section one and only need to be signed by the borrower.

 

I was trying to get apple to produce some authority which backs up her stance inn this, some case law or statute which has been shown to operate in the way she says,We know that there isn't any, because basically it doesn't, I thought that perhaps if she were to stand back and realize the fact a light may go on somewhere.

 

lol I was being sarcastic - I meant that you should not ignore that the Judge relied upon s.1 as one of the reasons to dismiss the appeal

[Peterbard]

Yen there seems to be no shortage of supporting authority, although really it is not authority because it is just how the statute works, it is not at issue unless you have a problem understanding what you read

[bhall]

Something else that may interest you DB

 

Helden v Strathmore Ltd [2011] EWCA Civ 542 (11 May 2011)

http://www.bailii.org/ew/cases/EWCA/Civ/2011/542.html

 

9. On 31 March 2006, Mr Helden executed a legal charge ("the 2006 Charge") in favour of Strathmore. This provided for the Property to be charged "by way of a legal mortgage with the payment to [strathmore] of the debt to be paid by [Mr Helden]". The 2006 Charge, stipulated that Mr Helden would pay to Strathmore "on [31 March 2007] the amount of the Debt". Against "The Debt" and "Interest Rate" there was written "In accordance with the offer letter". No such letter had in fact been prepared. The 2006 Charge included a provision for Mr Helden's fiancée, now his second wife, to countersign in the presence of an independent solicitor to confirm her consent, which she duly did. The 2006 Charge was duly registered at HM Land Registry.

 

Remember what we have been told in this thread about "by way of legal mortgage" ? (as in a borrower has no statutory power to grant one)

 

Yet in 2006 Mr Helden executed a legal charge in favour of the lender which provided for the property to be charged by way of legal mortgage

 

No mention of sub-mortgage

[bhall]

Yen there seems to be no shortage of supporting authority, although really it is not authority because it is just how the statute works, it is not at issue unless you have a problem understanding what you read

 

I know what you mean, for example when someone can't understand the word "or" it causes them to misunderstand lots of things

[applecart]

Right...ok.....let me try again......Here is where its at: This is the LPMPA section 2 - I raised the finding that in consideration of the decision in 'Garguilo' - was Deputy District Judge Ann McAllister referring to the Terms and Conditions to say that the 'it' was not signed by both parties.....??

 

The Issue has been 'buried' by beer garden posts and reference that do not directly deal with the finding at all..... would you guys be good enough to concentrate your knowledge and reliance on 'authority' here please:

 

 

LPMPA 1989 s.2:

 

(1)A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.

 

(3)The document incorporating the terms or, where contracts are exchanged, one of the documents incorporating them (but not necessarily the same one) must be signed by or on behalf of each party to the contract.

 

and then the LPMPA 1989 at section 4:

 

(4)Where a contract for the sale or other disposition of an interest in land satisfies the conditions of this section by reason only of the rectification of one or more documents in pursuance of an order of a court, the contract shall come into being, or be deemed to have come into being, at such time as may be specified in the order.

 

(6)In this section—

 

“disposition” has the same meaning as in the Law of Property Act 1925;

“interest in land” means any estate, interest or charge in or over land [F2or in or over the proceeds of sale of land].

 

LPA 1925 definition of 'disposition' is:

 

“disposition” includes a conveyance and also a devise, bequest, or an appointment of property contained in a willicon; and “dispose of” has a corresponding meaning;

 

LPA 1925 definition of conveyance is:

 

“Conveyance” includes a mortgage, charge, lease, assent, vesting declaration, vesting instrument, disclaimer, release and every other assurance of property or of an interest therein by any instrument, except a will;

 

 

so, how does s.53 have anything to do with the 'terms and conditions' never mind the Deed??

 

Why, or how did the Courts miss the highlighted sections in the lamb case - Helden - Eagle Star etc.....

 

It does appear that section 2 can apply to the 'document' that contains the 'terms and conditions'.......?? Not sure if 'lamb' picked up on that point??......perhaps the lambs should have put forth the 'terms and conditions' to show that this was the document that should have been signed by the Lender and themselves ........Not the Deed......(for reliance on S.2)..... the Deed relies on other statute of course for its validity.

 

Could that be the 'error' of LAW worth taking to 'appeal'???

 

I think lamb did proceed on section 2 and section 27 (f) surely the courts could or should re-consider the decision???

 

NOT THAT WE RELY ON S. 2 of course......but, for those that have.....the highlighted sections do appear to make sense in relation to the 'terms and conditions'...... which invariably are not attached to the official copy held at HMLR BTW (the 'IT' as referred to by Ann McAllister in the garguillo case- just my thoughts)

 

Any constructive comments on the above guys......no??

 

Apple

[applecart]

To assist those who wish to make constructive contribution - This is the complete citation for 'garguillo': Garguilo v Jon Howard Gershinson & Anor [2012] EWLandRA 2011_0377 (06 January 2012)

 

Apple

[Peterbard]

You seem to have a problem differentiating between the contract for disposition of interests in a property and the deed which transfers right to the property.

 

Sect 1 gives the requirements for the deed section 2 for the contract.

 

 

The requirements of form and content required in section 2 so not apply to section 1(deeds)

[applecart]

Hi Ben yes I know, the provision that was being relied on was one that was applicable only to contracts for disposition of interests not to deeds which transfer property, the later come under section one and only need to be signed by the borrower.

 

I was trying to get apple to produce some authority which backs up her stance inn this, some case law or statute which has been shown to operate in the way she says,We know that there isn't any, because basically it doesn't, I thought that perhaps if she were to stand back and realize the fact a light may go on somewhere.

 

 

You will note that section 2 includes the word 'or' - we are reliably informed by Ben that the word 'or' has significance, effect and meaning.

 

With respect - the 'or' in section 2 distinguishes 'contracts for sale' from 'disposition of interests' - would you not agree?

 

Apple

[Peterbard]

To assist those who wish to make constructive contribution - This is the complete citation for 'garguillo': Garguilo v Jon Howard Gershinson & Anor [2012] EWLandRA 2011_0377 (06 January 2012)

 

Apple

 

Perhaps if you were to explain how this case is supposed to support your argument, because I do not see how it can, to be honest.

[applecart]

You seem to have a problem differentiating between the contract for disposition of interests in a property and the deed which transfers right to the property.

 

Sect 1 gives the requirements for the deed section 2 for the contract.

 

 

The requirements of form and content required in section 2 so not apply to section 1(deeds)

 

No Dodgeball, I have no such problem differentiating between the 'contract for sale' and the 'disposition of interests'

 

The Contract for sale - will be between the buyer and seller of a property......

 

The deed is the 'registrable disposition' - aka - the charge, aka - the deed.....aka the deed that creates the 'disposition of interests' in property... or let's say the 'security' for the loan.

 

Section 1 looks only at the borrowers duty to sign the deed - it is section 46 Companies Act 2006 that looks to the Lenders duty to execute the deed - if he does not do so - there is no presumption of delivery to be in evidence to say he has complied with LPMPA 1989 s2 as amended applie

 

Now.... back to the 'terms and conditions' requirement under section 2 please....to say 'it' must be signed by both the Lender and the Borrower......and the authority in 'garguillo'

 

Section 2 (3) speaks of the 'The document incorporating the terms'.....

 

I'd be grateful for you to move your point forward from here please....

 

Apple

[applecart]

Perhaps if you were to explain how this case is supposed to support your argument, because I do not see how it can, to be honest.

 

In brief - 'garguillo' says if the 'it' is not attached at the time of signing the deed - then the deed is void.

 

When copies of the deed are retrieved from HMLR - the 'it' is not attached. Borrowers are finding they only retrieve the deed without the 'it' attached'

 

The 'it' is the 'terms and conditions'...section 2 appears to say - if the 'terms and conditions' are not attached - there can be no finding that the 'it' meets s.2 - we already know the deed is not signed by the Lender.......

 

S.2 provides that if the 'it' is not signed by 'each party' - then another document should be......the other document and the only document in evidence is the deed ..... that is not signed by 'each party'.....

 

 

 

Apple