Repossession questioned by deeds not being signed

[applecart]

Good Morning

 

It is nice to see Apple back after a few days away. All we need now is Is It Me? to comment and bring this to a close.

 

I would have thought, call this speculation if you will that if Is It Me?'s friend's application was in anyway successful, he would not be able to resist telling everyone.

 

Yet, we know that a decision has been issued and there has been nothing said by Is It Me? despite his insistence recently that everyone should make an application.

 

We should not lose sight that the decision was in regard to two applications and not just that of Is It Me?'s friend.

 

Today, I visited a site (fletch you will know which one, you recently posted there ) which has threads about mortgage deeds being unsigned. Unlike CAG it would appear that users can amend old posts as on the 25th a user amended their posts on this topic to now read "Unfortunately this avenue has proved unsuccessful, so post removed". As I understand it, this person was involved in promoting this idea and helping others on the basis on that idea.

 

I wonder, again call this speculation if you will, if this is a reflection on the decision issued of the Property Chamber.

 

Morning Ben ; )

 

I'm glad to be back.....

 

I'd love to see the site you are talking about?

 

It could be speakaing of the OP's case - who's to know - thought you said there were 10 applications.....

 

Regardless, whoever it may be referring to - it says there may be more work to be done - especially if it did, as you infer - go against a Borrower ; )

 

Apple

[Peterbard]

Er Dodge, if the PC declare the Deeds in these cases void using the core argument by Apple in this thread, then it is asserted is it not that the PC may declare that those mortgages in this circumstance would then remain but in equity only, so an Equitable Mortgage??

 

Now where's my pen I really must finish that crossword.........

 

WP

 

Err which core argument is that ?

the deeds in this case were signed by the lender and registered so there was a legal transfer. (ie not an equitable mortgage).

[Peterbard]

Good Morning

 

It is nice to see Apple back after a few days away. All we need now is Is It Me? to comment and bring this to a close.

 

I would have thought, call this speculation if you will that if Is It Me?'s friend's application was in anyway successful, he would not be able to resist telling everyone.

 

Yet, we know that a decision has been issued and there has been nothing said by Is It Me? despite his insistence recently that everyone should make an application.

 

We should not lose sight that the decision was in regard to two applications and not just that of Is It Me?'s friend.

 

Today, I visited a site (fletch you will know which one, you recently posted there ) which has threads about mortgage deeds being unsigned. Unlike CAG it would appear that users can amend old posts as on the 25th a user amended their posts on this topic to now read "Unfortunately this avenue has proved unsuccessful, so post removed". As I understand it, this person was involved in promoting this idea and helping others on the basis on that idea.

 

I wonder, again call this speculation if you will, if this is a reflection on the decision issued of the Property Chamber.

 

Morin Ben

 

Well that is interesting, I thought that there was no defense, "unfortunately this idea has proved unsuccessful,"Hmm

[Winged Piglet]

I do wonder about the equitable mortgage argument to be honest. Equitable charges/mortgages are recognised by the courts to deal with a situation where one party entered into a contract for the grant of a charge/mortgage, in a situation where the legal formalities for granting charge/mortgage were not properly complied with.

 

A contract for the grant of a charge/mortgage is a contract for the disposition of an interest in land. These are covered by section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 which states that such agreements must be in writing signed by both parties.

 

Accordingly, if a lender cannot prove that it signed the loan agreement, I struggle to see how it could ask the court to enforce an equitable mortgage. There will certainly be an implied contract for repayment of the money but implied contracts do not meet the formalities of section 2.

 

My personal view is still that I think it is very unlikely that any of these applications will be successful. But if they are I think that lenders who do not have loan agreements signed by both parties will only be unsecured creditors; and the only way to get at the house would be through the CCJ enforcement process or through making the borrower bankrupt.

 

Yes Sooooooo if they then have an unsecured debt HOW are they going to get a CCJ without any evidence of a signed loan agreement? How then can the Lender persuade the court that they have a case?? They have nothing to wave at them. What a mortgage offer with ommission of any signature of any of the parties involved? REALLY? How could the Lender show the court that the Borrower agreed with the Terms and Conditions in the first place or that the document was the one relied upon or that the Borrower had indeed even seen it. How could they show the court beyond doubt the terms of the loan agreement/offer and thus any breaches?

 

Again how could you make a Borrower bankrupt?. A Statutory Demand would be set aside as there was no proof of entitlement for the Lender. In fact I doubt they could even succeed to application.

 

 

As an eg. I have three Mortgage Offers with varying terms etc - two with the same date. All unsigned by either party and no place to sign anyhoo.

 

From the Financial Ombudsman

http://www.financial-ombudsman.org.uk/publications/ombudsman-news/6/signature-june.htm

[applecart]

Yes but as said we are talking about equitable mortgages, which is not the subject of the OPs case.

 

Regarding the section 2 condition for equitable mortgages, it seems to me that this is not an "agreement" as in for instance the case of a loan agreement, it is more a method of ensuring that all terms and conditions are present, on completion. The actual execution the mortgage or the main part of it if you like is done by the deposit of the title deed as it always has.

 

The regulation may make it difficult to enforce the charge if the requirement is not met on an equitable mortgage it is true as shown in Sahib.

 

Although it is difficult to understand the point you are making here Dodge - I will say - the Deed is a Specialty Contract.....Ben assisted the understanding that it incorporates all the terms etc etc... We trust Ben on that one - means we can frame s.2 into the 'arument' afterall - thanks to Ben ; )

 

It may mean that th Lender can make out that it was the Borrower that induced him into the beleif that he would get an equitable 'mortgage' - I can't see that given it was down to the Lender to sign the deed (specialty contract).......Borrowers cannot force a lender not to sign the form of deed as a 'specialty contract' can they?

 

 

 

 

Apple

[applecart]

Morin Ben

 

Well that is interesting, I thought that there was no defense, "unfortunately this idea has proved unsuccessful,"Hmm

 

There is NO Defence Dodge.....if the Borrower has failed for any reason at the first hurdle - just means we have to keep going....that's all....European Court hasn't even been considered yet mate.....so, hold your horses ; )

 

Apple

[Peterbard]

Morning Ben ; )

 

I'm glad to be back.....

 

I'd love to see the site you are talking about?

 

It could be speakaing of the OP's case - who's to know - thought you said there were 10 applications.....

 

Regardless, whoever it may be referring to - it says there may be more work to be done - especially if it did, as you infer - go against a Borrower ; )

 

Apple

 

But Apple there is no defense, How could this happen in even one case ? Now it seems we know of at least three ? which showed there certainly is a defense. In fact that there was never really a case at all, one may speculate.

[Winged Piglet]

Err which core argument is that ?

the deeds in this case were signed by the lender and registered so there was a legal transfer. (ie not an equitable mortgage).

 

Yesssssss but IF (one more time) the PC rule that the Deeds in these cases ARE void, then what remains? An equitable mortgage? Yes? or would you like me to repeat it again. I hear parrots are very good at crosswords too ;-)

[applecart]

Err which core argument is that ?

the deeds in this case were signed by the lender and registered so there was a legal transfer. (ie not an equitable mortgage).

 

Dodge

 

Do you mean 'signed by the 'borrower'?

 

They have not been signed by the Lender at all

 

Apologies if i've missed your point here...

 

Apple

[Peterbard]

there is no defence dodge.....if the borrower has failed for any reason at the first hurdle - just means we have to keep going....that's all....european court hasn't even been considered yet mate.....so, hold your horses ; )

 

apple

 

lol

[applecart]

But Apple there is no defense, How could this happen in even one case ? Now it seems we know of at least three ? which showed there certainly is a defense. In fact that there was never really a case at all, one may speculate.

 

Not sure what you are inferring here Dodge.... Are you saying the application was un-successful??

 

Like I say, if it was; then it simply says - failed at the first hurdle - on to the next - we haven't even started talking European court yet Dodge.....it's only in the 'first-tier'

 

Apple

[applecart]

lol

 

That's the spirit Dodge ; )

 

Apple

[Peterbard]

Yesssssss but IF (one more time) the PC rule that the Deeds in these cases ARE void, then what remains? An equitable mortgage? Yes? or would you like me to repeat it again. I hear parrots are very good at crosswords too ;-)

 

Yess but one more time, why would he, the deeds are compliant.

[applecart]

Yesssssss but IF (one more time) the PC rule that the Deeds in these cases ARE void, then what remains? An equitable mortgage? Yes? or would you like me to repeat it again. I hear parrots are very good at crosswords too ;-)

 

If the Deed is declared void - then there is support to say - he can rely on the form of deed as a 'specialty contract' - so that if he has not signed that - then it makes sense that the Lender will look to an equitable remedy......it's arguable as to whether he should be allowed to get it because the ball was in his court to sign the deed...... garguillo says - estoppal won't help the Lender....

 

An equitable remedy as I understand it does not give a right to 'possession'...

 

Apple

[Peterbard]

Not sure what you are inferring here Dodge.... Are you saying the application was un-successful??

 

Like I say, if it was; then it simply says - failed at the first hurdle - on to the next - we haven't even started talking European court yet Dodge.....it's only in the 'first-tier'

 

Apple

 

No just to be clear, what i am saying is that all the arguments that you have put forward on this thread are false and the court has proven this to be the case.

 

Let it go Apple whilst you have a shred of credibility left

[Peterbard]

Not sure what you are inferring here Dodge.... Are you saying the application was un-successful??

 

 

 

Apple

 

Well of course it was, there was no argument.

[sequenci]

An equitable remedy as I understand it does not give a right to 'possession'...

 

Apple

 

I don't believe that to be the case.

[Peterbard]

There is NO Defence Dodge.....if the Borrower has failed for any reason at the first hurdle - just means we have to keep going....that's all....European Court hasn't even been considered yet mate.....so, hold your horses ; )

 

Apple

 

Sorry but which section EU court would you be appealing to, have you put in the application yet, fascinated to hear all the details.

 

Better

[applecart]

Yess but one more time, why would he, the deeds are compliant.

 

Compliant with 'common practice' or 'Statute'?

 

I know, you are likely to say 'both'.....it's been that way for years..blah blah... common practice is based on the common law which is based on statute.....blah, blah, blah...

 

If the LAW says it is not possible to 'mortgage' a registered estate.....then if there is a 'mortgage' - that MUST be a MISTAKE.

 

Applications made to the Chamber are to look to correct MISTAKES

 

You argue that it is permitted within the common law to 'mortgage' by charge by way of legal mortgage.....however.....fact is.....any 'mortgage' either by charge by way of legal mortgage or otherwise can only be applied to 'un-registered' land - under the 'first registration triggers'......

 

You insist a deed is 'unilateral' - any 'unilateral' instrument is challengable - it is only 'agreed notices' that will not be challenged Dodge.

 

Apple

[Winged Piglet]

No just to be clear, what i am saying is that all the arguments that you have put forward on this thread are false and the court has proven this to be the case.

 

Let it go Apple whilst you have a shred of credibility left

 

Well you can't mean the PC as the decision has not been made yet has it. So which court are you referring Dodge? Do tell.

 

Now 4 down three across........aha got it..... s.u.b.s.t.a.n.t.i.a.t.i.o.n

[applecart]

I don't believe that to be the case.

 

see Paragon & Pender - I think it was the Judge in one of those many appeals that confirmed it ; )

 

Apple

[Peterbard]

Although it is difficult to understand the point you are making here Dodge - I will say - the Deed is a Specialty Contract.....Ben assisted the understanding that it incorporates all the terms etc etc... We trust Ben on that one - means we can frame s.2 into the 'arument' afterall - thanks to Ben ; )

 

It may mean that th Lender can make out that it was the Borrower that induced him into the beleif that he would get an equitable 'mortgage' - I can't see that given it was down to the Lender to sign the deed (specialty contract).......Borrowers cannot force a lender not to sign the form of deed as a 'specialty contract' can they?

 

 

 

 

Apple

 

I fail to see how the lender cold mislead the borrower as the methods for producing the different mortgages . are not at all similar.

[steampowered]

Yes Sooooooo if they then have an unsecured debt HOW are they going to get a CCJ without any evidence of a signed loan agreement? How then can the Lender persuade the court that they have a case?? They have nothing to wave at them. What a mortgage offer with ommission of any signature of any of the parties involved? REALLY? How could the Lender show the court that the Borrower agreed with the Terms and Conditions in the first place or that the document was the one relied upon or that the Borrower had indeed even seen it. How could they show the court beyond doubt the terms of the loan agreement/offer and thus any breaches?

 

Again how could you make a Borrower bankrupt?. A Statutory Demand would be set aside as there was no proof of entitlement for the Lender. In fact I doubt they could even succeed to application.

 

 

As an eg. I have three Mortgage Offers with varying terms etc - two with the same date. All unsigned by either party and no place to sign anyhoo.

 

From the Financial Ombudsman

http://www.financial-ombudsman.org.uk/publications/ombudsman-news/6/signature-june.htm

 

There is no requirement for contracts to be in writing or have a signature. At common law, the only thing you need to form a contract are (1) an offer and (2) acceptance. There is no requirement for detailed T&Cs to be in place. Mortgages generally are not subject to the formalities required by the consumer credit act.

 

There can be no doubt that you agreed to borrow the money. You took the money and you used it to buy a house. You can't reasonably claim that you didn't intend to borrower the moeny or that you thought it was a gift. There is no real doubt that a contract was formed.

 

The only issue would be the exact terms of the debt. It is better from the lender's perspective if they have a signed document but its really not necessary. All the lender is required to show in a civil court is that, on a balance of probabilities, you were provided with the mortgage terms which it seeks to rely on.

 

The article you linked to is about a situation where a borrower claims he/she was made a promise by a mortgage employee which should form part of the contract. An example would be early repayment charges. There was also a case on the General Legal Issues forum recently where a CAGGer challenged a bank over its claims to allow temporary payment holidays. But I don't see how you can contest the whole thing.

[Winged Piglet]

I don't believe that to be the case.

 

Ah Sequenci that's nice but... why??? Expand. WHY then don't you believe that to be the case?

[applecart]

No just to be clear, what i am saying is that all the arguments that you have put forward on this thread are false and the court has proven this to be the case.

 

Let it go Apple whilst you have a shred of credibility left

 

Ah, that word again 'credibility'.

 

Dodge, If you are right and the case was un-successful against the Borrower - Please understand - It would be because of my 'credibility' for why I for one would keep going ; )

 

I would have no issue with the understanding that a negative decision at this stage - represents no more than a failure at the first hurdle.....

 

This could take yeeaaaarrrrrsssssss....

 

Apple