Repossession questioned by deeds not being signed

[bhall]

Yes I got these and they make a good read Have you read them?

 

Good Morning IS IT ME?

 

Yes, I have read them. It is good to note that you have read them too as it will mean that you are already aware and prepared for -

 

From the Prospectus page 58

 

"The sale by the Seller to the Issuer of the English Loans and their Related Security (until legal title is conveyed) takes effect in equity only. The sale by the Seller to the Issuer of the Scottish Loans and their Related Security is given effect to by a Scottish Declaration of Trust by the Seller by which the beneficial interest in such Scottish Loans and their Related Security is held on trust by the Seller for the benefit of the Issuer.

 

In each case, this means that legal title to the Loans and their Related Security in the Portfolio will remain with the Seller until certain trigger events occur under the terms of the Mortgage Sale Agreement (see "Summary of the Key Transaction Documents — Mortgage Sale Agreement" below). Until such time, the assignment by the Seller to the Issuer of the English Loans and their Related Security takes effect in equity only whereas in respect of the Scottish Loans and their Related Security held on trust pursuant to the Scottish Declaration of Trust by the Seller in favour of the Issuer, the Issuer will hold a beneficial interest only.

 

The Issuer has not and will not apply to the Land Registry to register or record its equitable interest in the English Mortgages and may not in any event apply to the General Register of Sasines or Land Register of Scotland (as appropriate) (together the Registers of Scotland ) to register or record its beneficial interest in the Scottish Mortgages pursuant to the Scottish Declaration of Trust."

 

As you already know in Paragon Finance Plc v Pender & Anor [2005] EWCA Civ 760 (27 June 2005), one of judgements was -

 

 

"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. "

[bhall]

The above judgement from Pender - being

 

"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."

 

Closely resembles the position as portrayed in the Accord Mortgage Sale Agreement being

 

6.2 For the avoidance of doubt, prior to the completion of the assignment, assignation, or transfer (as appropriate) of any Loan and its Related Security to the Issuer pursuant to Clause 6.1 , with effect from the Closing Date relating to that Loan and its Related Security legal title to each Loan and its Related Security in the Portfolio shall be vested in the Seller and sole beneficial title and interest shall be vested in the Issuer.

 

Prior to perfection of the transfer of the legal title to Loans and their Related Security pursuant to this Clause 6, the Seller undertakes (to the extent that any of the following is vested in it) to hold all right, title, interest and benefit (both present and future) in and under (a) the Loans and their Related Security, following the acquisition of such Loans and their Related Security by the Issuer and (b) any sums that are or may become due in respect thereof, on trust for the Issuer (excluding from such trust any Loans which have been repurchased by the Seller).

6.3 Perfection of the transfer, assignation and assignment in accordance with Clause 6.1 of:(a) the English Mortgages in the Portfolio shall be effected by means of a transfer in the form of the relevant Land Registry Transfer set out in Schedule 2 (Register of Transfers);

 

Anyway, I am glad that you have read them and that you are prepared for the potential legal arguments that you may face.

Edited July 2, 2013 by bhall

[bhall]

In all the cases about securitisation, such as paragon v pender 2003 2005, Bank of Scotland Plc v McGuigan, Wellstead -v- Judge White & Anon, Santander UK Plc v Harrison etc etc, it was never disputed and accepted that a sale took place.

 

Rather it was that the sale was left uncompleted, in that the transfer was not perfected by registration.

 

You should also make yourself familiar with the findings of Paratus AMC Ltd & Anor v Countrywide Surveyors Ltd [2011], Southern Pacific Personal Loans Ltd v Walker & Anor [2009], Southern Pacific Securities 05-2 Plc v Walker & Anor [2010]

 

Closer inspection of the last two cases will show that the first involved the lender (SPPL) and the second involved the SPV (SPS 05-2) - notices of the change of ownership were provided to SPPL borrowers and the land registry was also updated to reflect the change from SPPL to SPS 05-02

 

I hope you found the above detailed cases interesting and that reading them has helped you prepare for the legal arguments that you may face in times to come.

 

Whilst I will now be away from home for a short while, I hope when I return home that I find that you have been successful in helping your friend, whilst you may not appreciate my input I wish you the best of luck.

[caro]

Forewarned is forearmed. Definitely worthwhile considering any potential counter-arguments the opposition may come up with in advance of the next hearing.

[IS IT ME?]

bhall, I thank you for your input and all input is welcome.

This has been argued in court before and our argue against it has also been heard but there is some thing which is not the same as the Pender case and I can not say any more than that at this time.

I hope you have a good time away and on your return you will see what has happened and were we are.

Caro I agree.

There must be some thing in this for it to have 18 watcher last night and no postings.

[caro]

Many of the watchers could have been SEO spiders. I don't suppose many bankers are up at 3 in the morning looking at threads.

[IS IT ME?]

Ha I think so

apple still unable to have PMs as there are questions which for the time being I would like to keep to ourselves.

[applecart]

Hi Apple,

Thanks for your post to answer s the two points,

We have 3 weeks to answer the question of listings so I was going to wait until he got the order comes though to know what we need to do and secondly the deed charged at companies house and the sale agreement have both been signed by all parties to the sale and YBS have put the company seal on it.

Also I don't know if this is any good but the deed signed by my friend was done un-dated both on his signature and the one at the top for when it was to be reg at the LR?

thanks once again.

I would say that if there was no merit in this then the d/j would have thrown it out long ago.

 

Hi Is It Me

 

OK, 3 weeks should be ample time to cross reference the grounds again...yes, let's see what the Order asks for this time to be sure we address it on point....

 

The Law is full of merit...I never doubt it : )

 

I hear you when you speak of the Deed being 'un-dated'....

 

Apple

[applecart]

Ha I think so

apple still unable to have PMs as there are questions which for the time being I would like to keep to ourselves.

 

Funnily enough... no, I still have no PM facility....nor am I able to attach documents - only links : (

 

I'm being treated most unfairly - I must have abused the right at some point - you know the CaG rules....I'm grateful that I am still allowed to even post though...

 

Not to worry, I have nothing to hide...but I realise it can be frustrating for those who want certain matters to remain private.

 

Just be as discrete as you can is all - I will try to post as 'generally' as I can and pray you can read between the lines...

 

Apple

[applecart]

Thanks Caro, Thanks Ben...We will do our best to heed your advise and continue with all caution : )

 

Apple

[IS IT ME?]

well he has had an order from the Property chamber as it is now known and it states; (Going by what he has said over the phone)

The application should be struck out as it has no prospect of succeeding

The LR should be removed as the respondent and the lender be put in its place

the reasons being;

HM is not a party to the charge(we never said they were)

The application is made under sec 108(2) of the LR act (?) 2002.

The tribunal has no power to make an order to alter the register when exercising its jurisdiction under sec 108 (2), it can only rectify or set aside a document under sec 108 (2) and the register of title is not a document for the purpose of that provision.

Charges do not as a matter of law(?) always require execution by the lender as well as the borrower.

The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.

The charge is not in a form showing that it is required to be executed by the lender

The LR form CH1 does not require execution by a lender except where a note on the register of an obligation to make further advances has been applied for.

 

we have 14 days to make representations.

 

I have read and re read the law on this and I can not for the life of me see where this has charged, its not only me reading what I what to read or see what I whant to see but it is there.

So apple any thoughts???

 

I said all a long this will be a fight and very hard to get justice as this was all done behind closed doors.

[IS IT ME?]

also the deeds that they signed were undated and to be left blank and that is why there are 3 different dates on it

[IS IT ME?]

This is the reg

May be I reading it wrong???

 

108 Jurisdiction

 

(1)The adjudicator has the following functions—

 

(a)determining matters referred to him under section 73(7), and

 

(b)determining appeals under paragraph 4 of Schedule 5.

 

(2)Also, the adjudicator may, on application, make any order which the High Court could make for the rectification or setting aside of a document which—

 

(a)effects a qualifying disposition of a registered estate or charge,

 

(b)is a contract to make such a disposition, or

 

©effects a transfer of an interest which is the subject of a notice in the register.

 

(3)For the purposes of subsection (2)(a), a qualifying disposition is—

 

(a)a registrable disposition, or

 

(b)a disposition which creates an interest which may be the subject of a notice in the register.

 

(4)The general law about the effect of an order of the High Court for the rectification or setting aside of a document shall apply to an order under this section.

[applecart]

well he has had an order from the Property chamber as it is now known and it states; (Going by what he has said over the phone)

The application should be struck out as it has no prospect of succeeding

The LR should be removed as the respondent and the lender be put in its place

the reasons being;

HM is not a party to the charge(we never said they were)

The application is made under sec 108(2) of the LR act (?) 2002.

The tribunal has no power to make an order to alter the register when exercising its jurisdiction under sec 108 (2), it can only rectify or set aside a document under sec 108 (2) and the register of title is not a document for the purpose of that provision.

Charges do not as a matter of law(?) always require execution by the lender as well as the borrower.

The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.

The charge is not in a form showing that it is required to be executed by the lender

The LR form CH1 does not require execution by a lender except where a note on the register of an obligation to make further advances has been applied for.

 

we have 14 days to make representations.

 

I have read and re read the law on this and I can not for the life of me see where this has charged, its not only me reading what I what to read or see what I whant to see but it is there.

So apple any thoughts???

 

I said all a long this will be a fight and very hard to get justice as this was all done behind closed doors.

 

I agree with you... it is a fight...

 

Hi Is It Me

 

Yes, my thoughts are that somewhere along the line they are reading the info you have submitted in the application as a request to set aside the registered charge and somewhere along the line you may have unwittingly failed to cause the Adjudicator to recognise or interpret your application for the setting aside of the deed - where liability for rectification is due against HMLR not the Lender....the lender cannot rectify the register...it is HMLR who would do that upon the order of a court or the Adjudicator....when an order is made against HMLR in this way successfully... it would be upto HMLR to seek indemnity from the Lender - i.e...HMLR compensate you...and HMLR gets that money back from the Lender....subject to HMLR proving that the mistake was due to the Lender being at fault....

 

Clearly I have not seen or viewed what you submitted to them..and as such it is difficult to know how they have come to this conclusion without knowing what you actually submitted...(a problem that is not cured due to me having no PM facility)

 

It is the case that the charge has been given legal effect due to the continued common practice of HMLR to view documents which describe themselves as being a type of instrument which, by its nature, was required by law to be by deed as being sufficient for the purpose of section 1(2)(a). [source; clause 2.11: http://webcache.googleusercontent.com/search?q=cache:ue-ii3AFgKgJ:lawcommission.justice.gov.uk/docs/lc253_Execution_of_Deeds_and_Documents.pdf+speciality+contracts+law+commission+report&cd=4&hl=en&ct=clnk&gl=uk]

 

The Law Commissions comments on the practice were:

 

"We have previously rejected the suggestion that the mere use of words like “lease” or mortgage” would suffice. “It seems essential to avoid a situation where a document is held to be a deed simply because it was used in a transaction where a deed is required. This would amount to abolishing formalities for deeds altogether”: Transfer of Land: formalities for deeds and escrows (1985) Law Com No 93, para 8.3(ii)"

The difficulty for us both here is that I do not have PM facility - you would have been able to send me what you sent and I could have helped further with the application....the only other alternative is if you are willing to ask the site team to send me a PM containing your detailed application so I can look at it - I do not reccommend you posting the detail on the forum - give this some thought and let me know what you think?

 

Apple

[applecart]

also the deeds that they signed were undated and to be left blank and that is why there are 3 different dates on it

 

I can't make sense of this Is It Me....sorry

 

Can you expand at all?

 

Apple

[applecart]

This is the reg

May be I reading it wrong???

 

108 Jurisdiction

 

(1)The adjudicator has the following functions—

 

(a)determining matters referred to him under section 73(7), and

 

(b)determining appeals under paragraph 4 of Schedule 5.

 

(2)Also, the adjudicator may, on application, make any order which the High Court could make for the rectification or setting aside of a document which—

 

(a)effects a qualifying disposition of a registered estate or charge,

 

(b)is a contract to make such a disposition, or

 

©effects a transfer of an interest which is the subject of a notice in the register.

 

(3)For the purposes of subsection (2)(a), a qualifying disposition is—

 

(a)a registrable disposition, or

 

(b)a disposition which creates an interest which may be the subject of a notice in the register.

 

(4)The general law about the effect of an order of the High Court for the rectification or setting aside of a document shall apply to an order under this section.

 

No, you have not mis-read this at all....it contains the power under which the Adjudicator can act to set aside a void deed.

 

Like I said above, it will come down to what you put in your application or the way you 'framed' your application that enables an application being successfully being made...

 

All is not lost - consider sending me a copy of what you have submitted...we will then be able to discuss the Adjudicators 'reasons' for what appears to be his initial rejection of the application in more detail...

 

Apple

[IS IT ME?]

Hi Apple,

Sorry sent the reply by my phone and some of it had got loss. The deed that they have and signed they were told to leave the dates blank and these will be filled out later when the paperwork was finished, so that's what they did and therefore that's why there is the date when it was reg at LR, another one when they signed it and one when their solicitor confirmed it as being a true copy.

 

In answer to the adjudicator paperwork I copied most of the document you did but have asked If I can sent it to you via the site team.

[applecart]

Hi Apple,

Sorry sent the reply by my phone and some of it had got loss. The deed that they have and signed they were told to leave the dates blank and these will be filled out later when the paperwork was finished, so that's what they did and therefore that's why there is the date when it was reg at LR, another one when they signed it and one when their solicitor confirmed it as being a true copy.

 

In answer to the adjudicator paperwork I copied most of the document you did but have asked If I can sent it to you via the site team.

 

Ok Is It Me.... I get you...

 

What I find most surprising is that the response you received would seem to have come straight out of Ben's mouth (sorry Ben, but it really does...lol)

 

It's like this, if you send an application to the Adjudicator asking him to look at the Deed being the document that 'creates the charge by the borrower not the lender' - and he responds essentially talking about the LR's CH1 form - you would have to beg the question too, as to why they can get it so wrong - this is supposed to be a response from the independent offices of the Adjudicator - oh and notably - this independent Adjudicator - looks to sway 'blame' from HMLR - by making sure they advise you to 'take HMLR's name off the application and put the Lenders in'.... You just couldn't 'stage' the response any better could you???

 

Put simply if the document used to create your charge was the 'deed' - then that is the document the Adjudicator should have made comments about.....there will not be a Deed as well as a CH1 form....there will be only one or the other....not both...I think someone has some explaining to do....

 

Well like you say - there is the newly appointed first tier tribunal at the newly formed property chamber - I'm going to spend a wee bit of time getting to grips with this body before I comment further.

 

If you used the majority of what I said in the document posted on here - then you will note there is no reference whatsoever made to a CH1 form....

 

I'll get back to you later with more...

 

Apple

[IS IT ME?]

Thank you apple for staying with me,

I am not going to mince my words here but I smell a rat here, no where as you say is there any reference to a CH1 form in fact the form used was a TR1 form?

As I said and will say again this would be bigger than the PPI claims and I don't think, no there will be NO one willing to put there head above the line here and be the first.

Look forward to hearing from you

regards

[applecart]

Don't worry, I don't plan to be going anywhere.....what you are being put through is very interesting...if not, altogether strange...so I couldn't imagine not wanting to follow through. : )

 

To be honest, I really began to really consider that it was Ben that you mailed the application to - or maybe, the 'independent' Adjudicator from his 'independant office' passed your application to Ben to respond to?....................lol

 

The thing is if you are granting a charge in form CH1 - which you clearly didn't - how on earth did they conclude what they have to say in regard to a CH1 form, likewise if your friend did not even sign a CH1 form, what document are they referring to...if your friend did not sign a CH1, you could not and would not have put one into evidence as party to the application....so, what on earth is that all about then???..

 

As we know - the 'deed' that your friend will have signed will have a 'MD' number shown on the official copy - this denotes that the lender is using the said deed as his' own' form of charge as 'approved' by HMLR....and is the purported deed that your friend signed....that document is the one that you would have or should have sent in to the Adjudicator as party to the evidence to support your application....so where on earth and how on earth did the CH1 form come into the equation??

 

The response is so off the mark....it beggars belief!!....Are you sure you sent the application to the right office???

 

I'm looking into the TR1 - on first instance...I would not think that when you are looking to grant a charge by way of legal mortgage, that a Transfer document is necessary at all....so why your friend signed one of those is also beyond me...but, I reserve judgement until I get concrete proof and can validate my comment.

 

Speak soon : )

 

Apple

[IS IT ME?]

Don't worry, I don't plan to be going anywhere.....what you are being put through is very interesting...if not, altogether strange...so I couldn't imagine not wanting to follow through. : )

 

To be honest, I really began to really consider that it was Ben that you mailed the application to - or maybe, the 'independent' Adjudicator from his 'independant office' passed your application to Ben to respond to?....................lol

 

The thing is if you are granting a charge in form CH1 - which you clearly didn't - how on earth did they conclude what they have to say in regard to a CH1 form, likewise if your friend did not even sign a CH1 form, what document are they referring to...if your friend did not sign a CH1, you could not and would not have put one into evidence as party to the application....so, what on earth is that all about then???..

 

As we know - the 'deed' that your friend will have signed will have a 'MD' number shown on the official copy - this denotes that the lender is using the said deed as his' own' form of charge as 'approved' by HMLR....and is the purported deed that your friend signed....that document is the one that you would have or should have sent in to the Adjudicator as party to the evidence to support your application....so where on earth and how on earth did the CH1 form come into the equation??

 

The response is so off the mark....it beggars belief!!....Are you sure you sent the application to the right office???

 

I'm looking into the TR1 - on first instance...I would not think that when you are looking to grant a charge by way of legal mortgage, that a Transfer document is necessary at all....so why your friend signed one of those is also beyond me...but, I reserve judgement until I get concrete proof and can validate my comment.

 

Speak soon : )

 

Apple

LOL big time just what I was thinking funny how its word for word. I do not know where the ch1 form came from as like you say sent the ' deed ' with his application

Speak soon

[bhall]

bhall, I thank you for your input and all input is welcome.

This has been argued in court before and our argue against it has also been heard but there is some thing which is not the same as the Pender case and I can not say any more than that at this time.

I hope you have a good time away and on your return you will see what has happened and were we are.

Caro I agree.

There must be some thing in this for it to have 18 watcher last night and no postings.

 

Thank you, Is It Me? unfortunately it was work and not pleasure related. I am home for the weekend and away again Sunday night.

[bhall]

well he has had an order from the Property chamber as it is now known and it states; (Going by what he has said over the phone)

The application should be struck out as it has no prospect of succeeding

The LR should be removed as the respondent and the lender be put in its place

the reasons being;

HM is not a party to the charge(we never said they were)

The application is made under sec 108(2) of the LR act (?) 2002.

The tribunal has no power to make an order to alter the register when exercising its jurisdiction under sec 108 (2), it can only rectify or set aside a document under sec 108 (2) and the register of title is not a document for the purpose of that provision.

Charges do not as a matter of law(?) always require execution by the lender as well as the borrower.

The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.

The charge is not in a form showing that it is required to be executed by the lender

The LR form CH1 does not require execution by a lender except where a note on the register of an obligation to make further advances has been applied for.

 

we have 14 days to make representations.

 

I have read and re read the law on this and I can not for the life of me see where this has charged, its not only me reading what I what to read or see what I whant to see but it is there.

So apple any thoughts???

 

I said all a long this will be a fight and very hard to get justice as this was all done behind closed doors.

 

I am sorry that this initial response was not more favorable for your friend. However, as I have previously posted the above findings being -

 

 

• Charges do not as a matter of law always require execution by the lender as well as the borrower.
  
• The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.
  
• The charge is not in a form showing that it is required to be executed by the lender
  
• The LR form CH1 does not require execution by a lender except where a note on the register of an obligation to make further advances has been applied for.
  

Are all correct and is a true reflection of the statutory requirements stipulated by the applicable legislation.- Despite the posts made by Applecart to the contrary.

[bhall]

What I find most surprising is that the response you received would seem to have come straight out of Ben's mouth (sorry Ben, but it really does...lol)

 

To be honest, I really began to really consider that it was Ben that you mailed the application to - or maybe, the 'independent' Adjudicator from his 'independant office' passed your application to Ben to respond to?....................lol

 

Hello Apple

 

Isn't the reason for similarities between what I have previously posted and the offical response from the Adjudicator of the Land Registry which on 1 July 2013 combined with the Residential Property and the Agricultural Land Tribunals to form the First-tier Tribunal Property Chamber, obvious ?

 

 

• Charges do not as a matter of law always require execution by the lender as well as the borrower.
  
• The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.
  
• The charge is not in a form showing that it is required to be executed by the lender
  
• The LR form CH1 does not require execution by a lender except where a note on the register of an obligation to make further advances has been applied for.
  

 

As you have implied the findings of the First-tier Tribunal Property Chamber is almost identical to the information that I have posted and you dismissed as being incorrect.

 

Given that the above is the official findings of the First-tier Tribunal Property Chamber and is as I have posted on numerous occasions during the last few months, fully supported by case law and legislation (just not your interpretation of that case law and legislation), don't you think it maybe time to consider that you simply have it wrong and you have misunderstand the legalities involved ?

 

If you have not considered that possibility, it might be time that you should.

[IS IT ME?]

or may be that's what you wish BHal, if you look at that point you and the panel have said NOT always require that does NOT mean they do not!

 

So you say that sattue law is worng and should not be looked at? it also states that generally??? what is this then

What case law do you think supports your findingsl