Repossession questioned by deeds not being signed

[bhall]

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

 

Hello Is It Me?

 

If you look at this thread

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?386717-Mortgage-Deed-Does-it-need-to-be-signed-by-the-lender

 

Eagle Star Insurance Company Ltd v Green & Anor [2001] EWCA Civ 1389 (8 August 2001) (including previous and subsequent hearings) -

 

As you joked with Apple, the information and conclusions of the order you posted is almost identical as to what I have posted. Please do not shoot the messenger.

 

You will also see that I have said that in some situations a signature of the lender is required. An example being the CH1 form when there is an obligation for a further advance.

 

I have not and do not say that the legislation is wrong. All I have ever said and continue to say is that Apples interpretation of the legislation is wrong. If you look at the changes made by the RRO 2005, it doesn't make any change that refers to the requirement that a lender must sign the deed.

 

By way of an example how does changing

 

(b)it is validly executed as a deed by that person or, as the case may be, one or more of those parties.

 

To

 

“(i) It is validly executed as a deed by that person or a person authorised to execute it in the name or on behalf of that person, or

(ii) It is validly executed as a deed by one or more of those parties or a person authorised to execute it in the name or on behalf of one or more of those parties.”.

 

Or changing

 

(b)it is delivered as a deed by him or a person authorised to do so on his behalf.

 

To

 

(b) it is delivered as a deed

 

Mean that a lender has to sign the deed ????

 

I feel that Apple, be it with the best intentions has confused what a company must do when it grants a deed with her argument that a lender must sign the deed. They are of course two different things and should not be confused.

 

Please remember, unlike Apple of course that told you that the Mortgage Deed HAD to be signed by the lender, otherwise it is Void.

 

The order you have received clearly and beyond any reasonable doubt confirms that is not the case - In otherwords, if a mortgage deed is not signed by the lender, it does not automatically make it void.

 

Ben

 

Please excuse any mistakes in the above post. It has been written using my phone and the forum displays differently in its mobile browser. When I have the opportunity, if necessary I will repost.

Edited July 7, 2013 by bhall

[applecart]

Hi Ben/Is It Me...

 

Ben...

 

• Charges do not as a matter of law always require execution by the lender as well as the borrower.
   
  This statement is ambiguous....a legal charge in relation to land is by way of deed, that deed must express that it's intent is to create a charge by way of legal mortgage....
   
  A deed is a 'speciality contract' - a speciality contract in relation to land is to be signed by both the Lender and the Borrower as the 'parties to it'...
   
  In relation to the Borrowers signature - it must comply with LP(MP) Act 1989 s.1 (3)....as amended...it must be 'delivered'
   
  In relation to the Lenders signature - it must comply with LPA 1925 s.74 (5)....there is no legislation that does not make reference to the formality of execution of a deed...all will revert to a deeds validity to comply with LP(MP) Act 1989 s.1 (2) for validity in relation to the Lenders signature
   
  
• The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.
   
  This too is ambiguous and misleading....a deed signed by the borrower alone gives rise to a LPA 1925 s.53 (1) © interest...that interest would be 'equitable'...not 'Legal' - it must be a 'legal' conveyance...not an equitable conveyance to comply with LPA 1925 s.52(1)
   
  
• The charge is not in a form showing that it is required to be executed by the lender
   
  Totally ambiguous...what 'form' are they referring to....?? The statutory 'form' is a deed...signed by the parties to it expressed to by legal charge by way of legal mortgage', etc etc...
   
  
• 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.
   
  The application had nothing to do with HMLR's CH1 form - it had to do with the statutory requirements for the creation of a valid deed - not HMLR standard form filling requirements in relation to further advances
  

 

 

Cheers

 

Apple

[applecart]

Hi Ben.... this statement you made......

 

"Eagle Star Insurance Company Ltd v Green & Anor [2001] EWCA Civ 1389 (8 August 2001) (including previous and subsequent hearings) -

 

As you joked with Apple, the information and conclusions of the order you posted is almost identical as to what I have posted. Please do not shoot the messenger."

 

I didn't mean to make light of the decision per se... apologies if you felt offended in any way....

 

What needs to be pointed out, given your continual reliance on the above case is that - it was heard and decided both before the coming into force of the RRO 2005 and more importantly BEFORE the LRA 2002 came into force....

 

The Relevance and significance is this...

 

The Judges comments will refer to the Law as it stood at that time.....

 

The thing is Ben....at that time, the 1925 Act at both sections 85 and 86 granted and conferred powers in the Borrower to create legal interests by way of either Demise (freehold) or Sub-Demise (leasehold) .....and HMLR would be well within the Law as supported by the LRA 1925 section 27 (2) registering a demise (freehold) ....or LRA 1925 section 27 (3) registering a sub-demise...

 

Since the coming into force of the LRA 2002 ...it is section 23 (1) that removed the power of a borrower to create a legal interest by demise (freehold) or sub-demise (leasehold) ....and accordingly you will find that section 27 of the LRA 2002 is silent on the registration of such types of disposition....... then, the RRO 2005..... Thankfully removed the presumption of delivery of any type of mortgage by demise or sub-demise or any presumption of delivery .....in the public interest upon consideration of the recommendations of the Law Commission...as you will know

 

Cheers

 

Apple

[applecart]

Hi Ben

 

This statement:

 

"The order you have received clearly and beyond any reasonable doubt confirms that is not the case - In otherwords, if a mortgage deed is not signed by the lender, it does not automatically make it void."

 

This is no longer founded within the provision of current legislation as it stands today, the reliance on 'Eagle Star' is outdated....

 

A mortgage by demise was created on sight of the Borrowers signature alone....statute has moved on since then....

 

Today, a mortgage by demise (a unilateral deed) would not create a legal interest at all.....

 

Cheers

 

Apple

[applecart]

Hi Ben

 

In relation to this:

 

"By way of an example how does changing

 

(b)it is validly executed as a deed by that person or, as the case may be, one or more of those parties.

 

To

 

“(i) It is validly executed as a deed by that person or a person authorised to execute it in the name or on behalf of that person, or

(ii) It is validly executed as a deed by one or more of those parties or a person authorised to execute it in the name or on behalf of one or more of those parties.”.

 

 

This section as you know refers to 'validity' of a deed....a deed in relation to land......means we are talking about it's legal ‘validity’ in relation to the conveyance of an interest intended to confer a legal interest from the Borrower to the Lender in relation to a legal estate owned by the Borrower – to secure the debt......there is only one way ... and that is to create by express words...’ a charge by way of legal mortgage’......, that must be done by deed (LPA 1925 s.52,.... The mode of creating such an interest in relation to a ‘freehold’ estate is s.85 and to ‘leasehold’ is s.86 – there is no avoiding this - it is a statutory requirement..in that regard the only type of deed to meet such a formality is a ‘speciality deed’ – i.e: any such deed must be signed by both parties to ‘it’)

 

Or changing

 

(b)it is delivered as a deed by him or a person authorised to do so on his behalf.

 

To

 

(b) it is delivered as a deed

 

Mean that a lender has to sign the deed ????"

 

For that Ben, you need to understand firstly that a Deed is a ‘speciality contract’...

 

It is a ‘speciality contract’ when it relates to a creation of any interest in relation to land, one of the reasons being...that it extends the provisions of the limitations act from 6 years to 12 years....

 

The significance of the amendment from:

 

(b)it is delivered as a deed by him or a person authorised to do so on his behalf.

 

To:

 

(b) it is delivered as a deed

 

..is that, prior to the RRO 2005, HMLR and Lenders appear to rely and it appears that they still do rely on public ignorance...that evidence of the Borrowers signature on a deed, as submitted for registration by a solicitor, was ‘delivered’ on the borrowers behalf with the borrowers authority to do so, to take immediate effect upon registration....as dated.

 

Now, since the RRO 2005, that ‘presumption’ is rebuttal.... HMLR since 2005 should not be construing that a document that states on its face signed by the borrower as a Deed, expressing an intent to create a charge by way of legal mortgage has the same meaning or intent that it would have done prior to the RRO at all..........because there is no longer any presumption of ‘delivery’ in relation to any individuals/borrowers attested signature when the instrument is intended to create a legal conveyance of land by way of Deed for a charge to be entered on the register.........because unless it can be clearly seen on the face of the document that it is signed by the Lender as well....there is now no inference or presumption of ‘delivery’.....accordingly,the purported deed is apt to be set aside.....

 

What you have kindly evinced for us is the fact that it appears to continue to be HMLR accepted and misguided practice to register deeds that do not create a legal interest, for each one of those you have posted are not signed by the lender...in some instances, there is no provision for the lender to do so....

 

What concerns me right now is that in Is It Me’s friends case, a TR1 form is alleged to have been executed – along with a Deed in approved form.....can you help by letting us all know exactly what this document is – it’s purpose – and it’s effect at all??

 

 

Thanks in advance : )

Apple

[applecart]

Hi Is It Me

 

Have you had any support from the site team as yet to assist me view the info you sent to HMLR?

 

I'm just conscious that your time is running out....

 

 

Apple

[IS IT ME?]

Hi Apple,

No not as yet but have until the 15th

I note your reply to Mr Ben again it is to the point and within the LAW as it stands now and before 2005.

I have more than enough faith in your postings and it is very clear that the d/j was not happy with the lenders response to the appeal to HLR as they had it for 3 weeks before that hearing and asked the question why they did not answer the questions again.

I again say I do not know where the adjudicator was coming from in their reply. As the appeal was in the form that you sent to the site team word for word but changing the bits that need too.

So lets see what happens now.

thanks once again for your time

regards.

[IS IT ME?]

Hi Apple,

well just got off the phone and would you believe it but there is no TR1 form on file signed or other wise by my friend at the LR office, what they meant to say was that it WAS the one they all used until the lenders started to use there own.

regards.

[citizenB]

Hi Is It Me

 

Have you had any support from the site team as yet to assist me view the info you sent to HMLR?

 

I'm just conscious that your time is running out....

 

 

Apple

 

Umm, do we know what this is about ??

[IS IT ME?]

citizenB

sorry this is the document that apple sent to the site to look at.

Is there any chance that apple could have a PM box???

[citizenB]

I thought we posted the document up on the thread ?

[bhall]

I thought we posted the document up on the thread ?

 

Hello citizenB

 

I think there are some cross wires here. I don't think Apple is referring to her own document.

 

I think Apple wants IS IT ME? to provide her with copies of the information and documentation (based upon the document posted by the site team on behalf of Apple) that his friend provided to the Land Registry as part of his application to set aside the deed, so that Apple can review them for any possible mistakes which resulted in the order previously posted by IS IT ME?

 

IS IT ME? wants to provide them to Apple via personal message / instant message. However, for whatever reason Apple is unable to send or receive messages. Therefore, I think what they want to do, is for IS IT ME? to send the information and documentation to a member of the site team and then for it to be then forwarded onto Apple.

[citizenB]

hello citizenb

 

i think there are some cross wires here. I don't think apple is referring to her own document.

 

I think apple wants is it me? To provide her with copies of the information and documentation (based upon the document posted by the site team on behalf of apple) that his friend provided to the land registry as part of his application to set aside the deed, so that apple can review them for any possible mistakes which resulted in the order previously posted by is it me?

 

Is it me? Wants to provide them to apple via personal message / instant message. However, for whatever reason apple is unable to send or receive messages. Therefore, i think what they want to do, is for is it me? To send the information and documentation to a member of the site team and then for it to be then forwarded onto apple.

 

o.....k.. !!

[applecart]

Thanks Ben

 

Or of course... the site team could consider re-instating my PM and 'attachment' facility???

 

I'm conscious of course, it will be up to Is It Me...as to whether the info is sent to me...but all indications are that this is what Is It Me would prefer to do.....

 

What are your thoughts Citizen B... can you assist at all??

 

Apple

[applecart]

Hi Apple,

well just got off the phone and would you believe it but there is no TR1 form on file signed or other wise by my friend at the LR office, what they meant to say was that it WAS the one they all used until the lenders started to use there own.

regards.

 

Ahaaaa..... thought there was something not quite right with this 'TR1' form jumping into the mix....so, yet again staff at HMLR have confused a consumer....nothing changed there then : )

 

The 15th is not far off...In addition to the application detail...it would be helpful to see a copy of the decision...if that is possible Is It Me??

 

Apple

[IS IT ME?]

I would be more than happy and WILLING to sent this to you if you could get PMs as per your 164 post or fax it to you? as I know time is moving on and if I get this wrong or put the wrong info in then that a way out for them so yes some one else to look at it would be great.

[applecart]

Well Is It Me, we will just have to wait and see...

 

I don't think faxing is available through the CaG...but PM is....

 

I'll have to check CaG rules....if we can't move forward on the CaG...it may mean registering with some other forum so that the facility is made more accessible...what do you think? (I would prefer not to, but may feel forced to...)

 

Apple

[IS IT ME?]

I have asked so lets see what happens, I dont know why you can not have PM

regards

[caro]

Thanks Ben

 

Or of course... the site team could consider re-instating my PM and 'attachment' facility???

 

I'm conscious of course, it will be up to Is It Me...as to whether the info is sent to me...but all indications are that this is what Is It Me would prefer to do.....

 

What are your thoughts Citizen B... can you assist at all??

 

Apple

 

Everything needs to be kept on the open forum as per the site rules. Your posts confirm that you are not yet ready to have PM facilities reinstated.

[bhall]

Everything needs to be kept on the open forum as per the site rules. Your posts confirm that you are not yet ready to have PM facilities reinstated.

 

I agree that discussion on this topic should be kept in the public domain.

 

Whilst there can be arguments made in relation to the information submitted to the Property Chamber, being confidential (the other party being stated following Apples advice the Land Registry and not the Lender), Is It Me? has already submitted it to the Adjudicator of the Land Registry, so there is no real risk of anything confidential being exposed to the 'other side' by it being posted here.

 

Essentially, all that needs to be confirmed is if Is It Me? followed Apples advice to the letter, or changed it in someway. If the advice was not followed, how was what was submitted different to Apples advice. Again, as Is It Me? has already submitted that information, there is little risk of a breach of confidentiality. This is even more the case as nothing relevant to Is It Me?'s friend need be disclosed on CAG, as any personal information would be completely irrelevant.

 

One benefit of keeping the discussion in the public domain is that it allows any advice provided to be assessed, challenged and corrected where necessary, as has been the case here.

 

I hope Is It Me? decides to continue to use CAG, as using another forum such as the void mortgages / freeman type forums will in my opinion be of little benefit except to give him a one sided view of the world, full of unsuccessful arguments and a lot of wishful thinking.

 

My own view remains unchanged and is reinforced by the order posted by Is It Me?

 

 

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.

 

Both of these findings clearly confirm that Apples entire argument is based upon the misunderstanding that if a mortgage deed has not been signed by the lender it is void.

 

Now that a response has been provided by the Land Registry, Apple is blaming IS IT ME? for the response - being the complete opposite to Apples argument - Apple considers that IS IT ME? Must have done something wrong - It can't be that Apple is wrong - that would be impossible.

 

So much so that as the response from the Property Chamber disproves rather than proves Apples argument - Apple considers the posting of the order to be "allegations" and hearsay that could result in either the poster of the order or even CAG (????) facing litigation.

Edited July 11, 2013 by bhall

[applecart]

Everything needs to be kept on the open forum as per the site rules. Your posts confirm that you are not yet ready to have PM facilities reinstated.

 

doh!!...... : (

 

I hear you, Thank you for letting me know... much appreciated.

 

 

Apple

[applecart]

Hi Is It Me...

 

I do not advocate that you post a third parties confidential info on the CaG....

 

It does of course mean that we will never know why or how the 'independent' Adjudicator came to it's conclusion in your friends case - .... I have already posted more than enough information on the various threads to do with the topic to assist build your knowledge within this complex area of the Law....

 

It was in the power of the CaG to assist me to assist you further...but alas... that will not be the case by the means we both would have appreciated....: (

 

I certainly understand why you do not wish to make the application detail and response 'public' at this stage....and I for one, wholly respect your reasoning at this time.

 

Please take what you can from what has been already said by me and move forward from there...

 

I wish you all the best, I'm just sorry that I am not in a position to assist you further on the CaG : (

 

Apple

[IS IT ME?]

who's been a naughty person then?lol

I have asked if I could post up the details and just waiting to hear back if that's OK apple,

I know that it will be a very complex case now and I for one would need all the help I could get as not to miss any thing.

 

Yes people can read and post what they wish on here and that's fine BUT when people have no answers to a problem then one has to ask why and that's all I've done.

I have said before and will show when the post is up that Bens posting is nearly word for word on this matter and I believe he or she (Simon)howeverr works for the lenders or in their legal side.

I for one will now not answer his posts which is my right.

[caro]

What makes you think that someone who is offering you advice, which you don't happen to like, works for the lender?

 

I'd rather have a friend be honest with me, than tell me what they think I want to hear, and keep me from making a mistake. To me that is a true friend.

 

If you don't want to respond, that's fine, but I urge you to consider the merits of all advice on offer.

 

As has already been said, better to consider the arguments for and against now than go to court unprepared for what might face you.

 

I would remind apple that the purpose of CAG is to empower people to help themselves by sharing advice and experience for the benefit of all. It is neither licenced or insured to offer one to one private advice.

[bhall]

I have said before and will show when the post is up that Bens posting is nearly word for word on this matter and I believe he or she (Simon)howeverr works for the lenders or in their legal side.

I for one will now not answer his posts which is my right.

 

Hello Is It Me?

 

If I worked either for the lender or their legal side, why would I have spent so much time, correcting the advice given by Apple ?

 

Wouldn't it be better if I worked for the lender or their legal side, to let you go to court with a defense to possession based on Apples misunderstandings rather than the law ?

 

If I worked for either a lender or their legal team, I would just sit here quietly and not say a word and let you walk into court with an argument that has absolutely no legal basis. This is not just my opinion, you have to remember it is also the opinion of the First-tier Tribunal Property Chamber.

 

The order you have posted states that the Property Chamber, which incorporates the Adjudicator for the Land Registry considers that -

 

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

 

'No prospect of succeeding'

 

You have to remember, it is the view of the Property Chamber that is important, Apple can say and believe whatever he/she wants. When you go back to Court, you will be asked what was the response from the Adjudicator, not what is the view of Applecart.

 

Let's be realistic here for a moment, is it even possible that you could have submitted anything that would have any impact upon the findings of the Property Chamber - 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.
  

Of course not, the Property Chamber has told you that it is a matter of law that the deed does not always have to be signed by the lender.

 

The Property Chamber has also told you that as it is the borrower that creates the charge, generally only the borrower needs to sign it.

 

I have gone to great lengths to explain in detail why this is the case in my previous posts (obligations etc)

 

The reason the information that I have posted, is so similar (as you and apple both say almost it is almost word for word) to the order of the Property Chamber, is because my posts have been based upon the law, as the order from the Property Chamber would have been and not Apples incorrect interpretations of the law. I take it as a compliment that you consider my posts to be on par to the Property Chamber's findings.

Edited July 11, 2013 by bhall