Repossession questioned by deeds not being signed

[applecart]

This single post sums up things nicely

 

Apple says unregistered the law says registered

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?391318-Repossession-questioned-by-deeds-not-being-signed&p=4471316&viewfull=1#post4471316

 

Hi Ben

 

I can see you are looking to prove a point. I applaud your determination ; )

 

However - The fact is - there is no "point" to defend - other than to remind you that LRA s.23 protects the Borrower (as told to you by Is It Me) and provides the Lender with NO DEFENCE.

 

Apple

[bhall]

Refer to the "principles" and the intended distinction between those for "registered" land and "Unregistered" land

 

Part 1 & 2 of the LRA 2002 refers to "UN-Registered" Land...

 

Part 3 & 4 refers to "Registered" Land

 

Here is the link: http://www.legislation.gov.uk/ukpga/2002/9/contents

 

Apple

 

I have read it previously and I do understand what it says and what it means. ;-) - hence the content of my many posts

 

Section 23 is in part 3 the bit about registered land. Section 27(2)(f) is also in part three, the part about registered land

 

As Is It Me? has said this was discussed during the hearing -

 

He could resolve this by disclosing what was actually said about this during the hearing about this very thing, otherwise we will have to wait until the actual decision is posted

[applecart]

I will save my applause until I have read the decision ;-)

 

I will then clap very loudly

 

Point taken - However; forgive me if I let you know that we are clapping right now - after all - this was an application that we were advised by you would be struck out - looks like (with respect) you were misguided.

 

Apple

[applecart]

I have read it previously and I do understand what it says and what it means. ;-) - hence the content of my many posts

 

As Is It Me? has said this was discussed during the hearing -

 

He could resolve this by disclosing what was actually said about this during the hearing about this very thing, otherwise we will have to wait until the actual decision is posted

 

He has told you - He told you that LRA s.23 is the Borrowers Powers - the Borrower owns powers of disposition - in the registered "estate" and the registered "charge".....

 

What more do you need to understand?

 

Apple

[bhall]

He has told you - He told you that LRA s.23 is the Borrowers Powers - the Borrower owns powers of disposition - in the registered "estate" and the registered "charge".....

 

What more do you need to understand?

 

Apple

 

To put it simply why the law states differently

 

S.23

 

Owner’s powers in relation to a registered charge consist of—

(a)power to make a disposition of any kind permitted by the general law in relation to an interest of that description, other than a legal sub-mortgage, and

(b)power to charge at law with the payment of money indebtedness secured by the registered charge.

 

S.24

 

Right to exercise owner’s powers

 

A person is entitled to exercise owner’s powers in relation to a registered estate or charge if he is—

(a)the registered proprietor, or

 

"223.Paragraph 8 relates to a newly created charge over a registered estate or a registered rentcharge. The charge must be recorded in the register relating to the registered estate and show the chargee (typically the lender) as proprietor of that charge."

 

 

The law says that the proprietor of the registered charge is entitled to exercise the powers of the owner of the registers charge. The law also confirms that the lender is typically registered as the proprietor of the registered charged.

 

However, no point going around in circles, when the decision is posted we will know, one way or the other won't we

[bhall]

Point taken - However; forgive me if I let you know that we are clapping right now - after all - this was an application that we were advised by you would be struck out - looks like (with respect) you were misguided.

 

Apple

 

I think you might recall it was the Property Chamber that advised that it was going to be struck out. - I posted what the Chamber had said.

 

I wonder if the property chamber decided to proceed with it because of your subsequent submission or because other applications had been made. Given what the rules state and what was said in the submission, I learn towards it was because other applications had been made

[applecart]

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

 

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

 

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

 

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

 

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

 

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

 

 

 

Despite the order stipulating

 

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

 

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

 

The reason being, as has already been argued in Court

 

 

 

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

 

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

 

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

 

As an example -

 

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

 

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

 

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

 

 

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

 

Sorry if you do not feel that this is helpful.

 

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

 

Ben

 

I'm sorry Ben - but is the above post not one of the many objective posts made by you??

 

Apple

[bhall]

I'm sorry Ben - but is the above post not one of the many objective posts made by you??

 

Apple

 

And your point being ?

 

All of my posts in this thread are like that lol

 

 

However, thanks for posting that, I was going to repost that after the decision was posted especially the part about mortgage by demise - now you have made it easier for me to find. Thank you

 

You will see that I did try to explain it too you at the time but you was not interested . - I did try, boy have I tried

[applecart]

And your point being ?

 

All of my posts in this thread are like that lol

 

 

However, thanks for posting that, I was going to repost that after the decision was posted especially about mortgage by demise - now you have made it easier for me to find. Thank you

 

I'd have thought the 'point' was obvious.

 

You not only posted what the Chamber had said but you also sought to put Is It Me off from pursuing the application. That's clear from your post - read it - interpret it for yourself ; )

 

Your right...... all of your posts are like that..

 

Now, we have a situation whereby had Is It Me taken your 'concern' seriously, the Lender would have absconded long ago with his friends home - when clearly - the Lender had no right to mortgage by demise or otherwise.

 

That's the Law; it is there to protect Borrowers from un-scrupulous Lenders.

 

 

Apple

[applecart]

And your point being ?

 

All of my posts in this thread are like that lol

 

 

However, thanks for posting that, I was going to repost that after the decision was posted especially the part about mortgage by demise - now you have made it easier for me to find. Thank you

 

You will see that I did try to explain it too you at the time but you was not interested . - I did try, boy have I tried

 

You've edited your post Ben??

 

Yes you are rather 'trying' - It does not look good when that effort is deployed in a way that distracts from the rights of Borrowers though. We need to be careful what we say I suppose when we are as 'concerned' as you appear to be ; )

 

Apple

[bigphil61]

Hi Ell-enn, You might have missed it, so I've posted the link again for you, if you look at the conclusion you can form your own opinion. As I understand it the lender in this case was Lloyds Bank Plc. I have also taken the liberty of adding para 77 directly from the actual decision which reads:

 

 

Should rectification be ordered?

 

 

 

1. As I have said, it is common ground that if the register is rectified by the removal of the Lease, the Charge will fall away. The Bank may or may not be entitled to be indemnified under section 103 and Schedule 8 to the Act.
   

 

 

 

 

http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&cad=rja&ved=0CD4QFjAD&url=http%3A%2F%2Fwww.commercialblawg.com%2Fbusiness-law%2Fgarguilo-v-jon-howard-gershinson-2-louisa-brooks-joint-fixed-charge-receivers-of-desmond-daniel-charles-moore%2F&ei=4PP8UpDuDcjD7Aati4GYBw&usg=AFQjCNGRudqbwiNCCC4gp9kxCjgANhoR2Q&bvm=bv.61190604,d.d2k

 

 

Hi Ben, Just a quickie, In the above extract from 'Garguilo', the Property Chamber's Adjudicator states that the 'charge will fall away', can you explain what that means, in laymans terms, please?...BP

[applecart]

Speak of 'charges by way of legal Mortgage is the same as a mortgage by demise; there is no ambiguity whatsoever.

 

This is the definitiion of 'mortgage' taken from the LPA 1925 s.205:

 

(xvi)“Mortgage” includes any charge or lien on any property for securing money or money’s worth; “legal mortgage” means a mortgage by demise or subdemise or a charge by way of legal mortgage and “legal mortgagee” has a corresponding meaning; “mortgage money” means money or money’s worth secured by a mortgage; “mortgagor” includes any person from time to time deriving title under the original mortgagor or entitled to redeem a mortgage according to his estate interest or right in the mortgaged property; “mortgagee” includes a chargee by way of legal mortgage and any person from time to time deriving title under the original mortgagee; and “mortgagee in possession” is, for the purposes of this Act, a mortgagee who, in right of the mortgage, has entered into and is in possession of the mortgaged property; and “right of redemption” includes an option to repurchase only if the option in effect creates a right of redemption;

 

Hope this helps those who are guided by Ben's 'concern' to ensure they do not become misguided ; )

 

Apple

[bhall]

Hers's where you went wrong:

 

This is the definitiion of 'mortgage' taken from the LPA 1925 s.205:

 

(xvi)“Mortgage” includes any charge or lien on any property for securing money or money’s worth; “legal mortgage” means a mortgage by demise or subdemise or a charge by way of legal mortgage and “legal mortgagee” has a corresponding meaning; “mortgage money” means money or money’s worth secured by a mortgage; “mortgagor” includes any person from time to time deriving title under the original mortgagor or entitled to redeem a mortgage according to his estate interest or right in the mortgaged property; “mortgagee” includes a chargee by way of legal mortgage and any person from time to time deriving title under the original mortgagee; and “mortgagee in possession” is, for the purposes of this Act, a mortgagee who, in right of the mortgage, has entered into and is in possession of the mortgaged property; and “right of redemption” includes an option to repurchase only if the option in effect creates a right of redemption;

 

Hope this helps?

 

Apple

 

You are still refusing to accept the meaning of the word "or" ? lol

 

http://dictionary.cambridge.org/dictionary/british/or_1?q=or

 

used to connect different possibilities:

 

Is it Tuesday or Wednesday today?

You can pay now or when you come back to pick up the paint.

Are you listening to me or not?

The patent was granted in (either) 1962 or 1963 - I can't quite remember which.

It doesn't matter whether you win or lose - it's taking part that's important.

There were ten or twelve (= approximately that number of) people in the room. He was only joking - or was he (= but it is possible that he was not)?

 

"or" used to connect different possibilities

 

a mortgage by demise or sub-demise or charge by way of legal mortgage

 

"or" one or the other

 

 

"there are two ways of creating a legal mortgage"

[applecart]

Hi Ben, Just a quickie, In the above extract from 'Garguilo', the Property Chamber's Adjudicator states that the 'charge will fall away', can you explain what that means, in laymans terms, please?...BP

 

Are you sure you want Ben to answer that question for you BP???

 

Just asking?

 

Apple

[bhall]

Are you sure you want Ben to answer that question for you BP???

 

Just asking?

 

Apple

 

Apple is the self professed expert on what things "really mean" - so Apple os best placed to "explain"

[applecart]

Your still refusing to accept the meaning of the word "or" ? lol

 

http://dictionary.cambridge.org/dictionary/british/or_1?q=or

 

used to connect different possibilities:

 

Is it Tuesday or Wednesday today?

You can pay now or when you come back to pick up the paint.

Are you listening to me or not?

The patent was granted in (either) 1962 or 1963 - I can't quite remember which.

It doesn't matter whether you win or lose - it's taking part that's important.

There were ten or twelve (= approximately that number of) people in the room. He was only joking - or was he (= but it is possible that he was not)?

 

"or" used to connect different possibilities

 

a mortgage by demise or sub-demise or charge by way of legal mortgage

 

It's Saturday Ben...

 

It does not say 'and' - it says 'or'

 

so, on that point you are well versed - it means you cannot

 

'mortgage by demise OR

 

Sub-demise OR

 

Charge by way of legal mortgage.

 

Thanks for assisting with the distinction; still means the same thing - Is It Me has advised you already - Borrowers cannot 'mortgage'......quite simple really ; )

 

Apple

[bhall]

It's Saturday Ben...

 

It does not say 'and' - it says 'or'

 

so, on that point you are well versed - it means you cannot

 

'mortgage by demise OR

 

Sub-demise OR

 

Charge by way of legal mortgage.

 

Thanks for assisting with the distinction; still means the same thing - Is It Me has advised you already - Borrowers cannot 'mortgage'......quite simple really ; )

 

Apple

 

Apple a mortgage by demise or sub-demise is one type of mortgage - demise is freehold and sub-demise is leasehold - both are referred to as a mortgage by demise- It is when a borrower grants a lender a demise. Another type of legal mortgage is as confirmed by the law commission a charge by deed expressed to be by way of legal mortgage

 

"legal mortgage” means a mortgage by demise or subdemise or a charge by way of legal mortgage

 

Even in your submission to the Property Chamber you accept this point that they are different things -

[bigphil61]

Are you sure you want Ben to answer that question for you BP???

 

Just asking?

 

Apple

 

 

Hi Apple, Well if Ben is able to answer, in a way that viewers can identify with, by all means lets here it...BP

[Peterbard]

Speak of 'charges by way of legal Mortgage is the same as a mortgage by demise; there is no ambiguity whatsoever.

 

This is the definitiion of 'mortgage' taken from the LPA 1925 s.205:

 

(xvi)“Mortgage” includes any charge or lien on any property for securing money or money’s worth; “legal mortgage” means a mortgage by demise or subdemise or a charge by way of legal mortgage and “legal mortgagee” has a corresponding meaning; “mortgage money” means money or money’s worth secured by a mortgage; “mortgagor” includes any person from time to time deriving title under the original mortgagor or entitled to redeem a mortgage according to his estate interest or right in the mortgaged property; “mortgagee” includes a chargee by way of legal mortgage and any person from time to time deriving title under the original mortgagee; and “mortgagee in possession” is, for the purposes of this Act, a mortgagee who, in right of the mortgage, has entered into and is in possession of the mortgaged property; and “right of redemption” includes an option to repurchase only if the option in effect creates a right of redemption;

 

Hope this helps those who are guided by Ben's 'concern' to ensure they do not become misguided ; )

 

Apple

 

Yes apple this is because in 1925 the two types of mortgage where treated as a legal mortgage

 

Later this was changed by the LRA and demise mortgages became un-lawful, lots and lots of mentions of this in Bens posts.

[applecart]

Apple is the self professed expert on what things "really mean" - so Apple os best placed to "explain"

 

No not at all.

 

What I am conscious of is that you tried to lead Is It Me to believe (as you still appear to be doing) that the Charge by way of legal mortgage was Lawful - we have since found that you were misguided.

 

I just wondered whether you would look to show the same 'concern' in answering BP's query too - that was all - nothing more.

 

Whilst I would happily provide my understanding - it is clear he was looking for yours......

 

The soap box is yours Ben - go ahead answer the question ; )

 

Apple

[applecart]

Apple a mortgage by demise or sub-demise is one type of mortgage - demise is freehold and sub-demise is leasehold - both are referred to as a mortgage by demise- It is when a borrower grants a lender a demise. Another type of legal mortgage is as confirmed by the law commission a charge by deed expressed to be by way of legal mortgage

 

legal mortgage” means a mortgage by demise or subdemise or a charge by way of legal mortgage

 

Lets hope the Lender relies the same as you do.

 

The Lender has 28 days to find this thread - pick up on your understanding and get it writing and put it before the Chamber.

 

I wish Lenders the best of luck ; )

 

Apple

[Peterbard]

Hi Ben, Just a quickie, In the above extract from 'Garguilo', the Property Chamber's Adjudicator states that the 'charge will fall away', can you explain what that means, in laymans terms, please?...BP

 

I will answer for you all. It means that the charge was n longer effective on the estate it was erased , defunct gone.

Although how that helps the OP is a complete mystery to me anyway, because in that case the charge was a third part to the mortgage.

[bhall]

Apple

 

Even in your submission to the Property Chamber you accept this point that they are different things -

 

 

]It is submitted that the applicant had no legal power to create a mortgage by demise, and had no intent to do so. It is understood that the creation of a mortgage by demise 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 estate/property until the mortgage debt was repaid in full and would be in breach of the LRA 2002 s.23 (1). [only state ‘sub-demise’ if your registered estate is leasehold] It is the case, that once the deed had been signed by the applicant, it was 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 registrable disposition within the substantiating law.

 

iii. It is submitted that contrary to a mortgage by demise a charge by way of legal mortgage is evinced when the borrower remains the owner of the estate. The means of any lender meeting this implied statutory obligation is by way of the lender executing the deed to confirm its intent to be obligated to do so.

 

Now where you really confuse things is where started off the submission by saying

 

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 registered charge. .

 

The above is what you told Is It Me? to say to the Property Chamber

 

1) The applicant is the registered owner of the registered estate

2) It is submitted that the applicant had no legal power to create a mortgage by demise

3) contrary to a mortgage by demise a charge by way of legal mortgage is evinced when the borrower remains the owner of the estate

 

You said the applicant is the registered owner of the registered estate and then you say contrary to a mortgage by demise a charge by way of legal mortgage is evinced when the borrower remains the owner of the estate

[applecart]

Yes apple this is because in 1925 the two types of mortgage where treated as a legal mortgage

 

Later this was changed by the LRA and demise mortgages became un-lawful, lots and lots of mentions of this in Bens posts.

 

Lots and lots in the application and argument before the Chamber too - the Lender was DUMBSTRUCK - he had NO DEFENCE

 

I think you will find that Ben's posts imply that 'mortgage by demise' is unlawful but he reckons that a 'charge by way of legal mortgage' is OK - funny really when you look at the definition in LPA 1925 to see that they are all the same thing giving exactly the same effect hey??

 

Pretty much sums up Ben's understanding of property law really doesn't it?

 

I'm hopeful that Lenders will rely on Ben's interpretation and understanding though ; )

 

Apple

[applecart]

Apple

 

Even in your submission to the Property Chamber you accept this point that they are different things -

 

Ben,

 

See the definition of 'mortgage' - 'or' simply makes it easier to distinguish the different types of 'mortgage' and the different ways of creating the same effect:

 

(xvi)“Mortgage” includes any charge or lien on any property for securing money or money’s worth; “legal mortgage” means a mortgage by demise or subdemise or a charge by way of legal mortgage and “legal mortgagee” has a corresponding meaning; “mortgage money” means money or money’s worth secured by a mortgage; “mortgagor” includes any person from time to time deriving title under the original mortgagor or entitled to redeem a mortgage according to his estate interest or right in the mortgaged property; “mortgagee” includes a chargee by way of legal mortgage and any person from time to time deriving title under the original mortgagee; and “mortgagee in possession” is, for the purposes of this Act, a mortgagee who, in right of the mortgage, has entered into and is in possession of the mortgaged property; and “right of redemption” includes an option to repurchase only if the option in effect creates a right of redemption;

 

 

Apple