Repossession questioned by deeds not being signed

[IS IT ME?]

Change of name may be thanks for your post

[UNRAM]

 

"Lamb's appeal argument, put as simply as possible, was that her mortgage was null and void for want of statutory formality because it was signed by the borrower only and not the lender (as is the case with the vast majority of mortgage deeds) and as such it did not comply with LP(MP)A; therefore the mortgage did not exist at law and so could not be completed by registration as required by LRA; and thus it was not binding on the borrower.

 

...

 

In short, His Honour Judge Butler's reasoning was that mortgages are not within the scope of section 2 LP(MP)A at all. That section is concerned with contracts for the creation of a disposition in land, whereas a mortgage is itself actually a disposition in land [2]. The relevant statutory provision for a mortgage, being section 53 of the Law of Property Act 1925 (LPA), does not require every term to be included in a document signed by both parties, rather the document just needs to be signed by "the person creating or disposing of the interest" (i.e. the mortgagor/borrower). The judge also explained that section 27 LRA does not go so far as to say that a disposition required to be completed by registration (such as a mortgage) is created by registration and that it does not therefore exist or operate in equity before registration.

 

...

 

I am now able to post links

 

http://www.walkermorris.co.uk/business-insights/social-medias-mortgage-revolution-does-not-materialise

 

It does not specify which document was not signed by the lender - the deed or the agreement. Im guessing the deed... So its a legal fact that the mortgage is the actual disposition. However the mortgage "offer" or other "contract" signed by the borrower ahead of the deed is the "contract for the creation of the future disposition/mortgage". The judge appears to have completely overlooked the following rule in reaching a verdict...

 

Land Registration Act 2002 section 91: the requirement for a disposition (the charge/deed) classified according to section (2)(b) to be (4)(a) in writing, and (4)(b) signed by each individual, and sealed by each corporation whose electronic signature it has. Please note also (5) A document to which this section applies is to be regarded for the purposes of any enactment as a deed.

 

I have checked with the Land Registry who have confirmed that for registration purposes the deed and the charge are the same article.

 

Can't argue with that, really....

 

And lets remember:

 

Helden v Strathmore Ltd [2011] 2 EGLR 39. http://www.bailii.org/ew/cases/EWCA/Civ/2011/542.html [27] "Section 2 is concerned with contracts for the creation or sale of legal estates or interests in land, not with documents which actually create or transfer such estates or interests. A contract to transfer a freehold or a lease in the future, a contract to grant a lease in the future or a contract for a mortgage in the future are all within the reach of the section, provided of course that the ultimate subject matter is land. However, an actual transfer, conveyance or assignment, an actual lease, or an actual mortgage are not within the scope of section 2 at all".

 

There are two entities present here. The contract and the mortgage. Borrowers will lose as long as they confuse them. My own mortgage "offer" terms and conditions specifically references the terms and conditions to be used for the "future mortgage" as a clear demonstration that the former is a contract for a mortgage in the future. It is clear there was an intention here to form a contract for the creation of the mortgage which never materialised due to lender's oversight...

Edited August 25, 2013 by UNRAM

[Jeremy Belknap]

I only posted the case for information purposes. I did not post it to get into a lengthy debate about this topic.

 

However three things do strike me immediately from your post

 

- The word mortgage is used incorrectly on a daily basis. People say that they are applying for a mortgage or they have a mortgage with bank x or bank y. A mortgage is actually something that we give to the banks, as security for a loan to buy our homes.

 

The mortgage agreement is really nothing more than a loan agreement, the charge is the mortgage and the charge is granted using a deed. I am sure you know all this already and by no means do I wish to teach anyone to suck eggs.

 

I appreciate that my word or explanation may not be sufficient to satisfy you.The below is a transcript of a hearing held in January, before the judgement made as previously detailed. Paragraph 8 confirms that it is the mortgage deed that has not been signed by the lender.

 

http://www.scribd.com/doc/144639277/1PB48636-c-THU-09-MAY-2013-1423a-at-BLACKPOOL-County-Court-HHJ-BUTLER-Judgment-PDF-TUE-15-JAN-2013-TMB-LAMB-Void-Mortgage-Orders

 

- "signed by each individual, and sealed by each corporation whose electronic signature it has" If my memory serves me correctly, you have a copy of your mortgage deed, does it have any electronic signatures ? If not, is section 91 relevant ?

 

- "However, an actual transfer, conveyance or assignment, an actual lease, or an actual mortgage are not within the scope of section 2 at all" The last few words or an actual mortgage are not within the scope of section 2 at all, do stand out to clarify that section 2 does not apply to an actual mortgage.

 

The reference to Thompson v Foy [2009] EWHC 1076 and section 27 may provide you with the answer to your question

 

Jerry

Edited August 25, 2013 by Jeremy Belknap

[UNRAM]

I only posted the case for information purposes. I did not post it to get into a lengthy debate about this topic.

 

However three things do strike me immediately from your post

 

- The word mortgage is used incorrectly on a daily basis. People say that they are applying for a mortgage or they have a mortgage with bank x or bank y. A mortgage is actually something that we give to the banks, as security for a loan to buy our homes.

 

The mortgage agreement is really nothing more than a loan agreement, the charge is the mortgage and the charge is granted using a deed. I am sure you know all this already and by no means do I wish to teach anyone to suck eggs.

 

I appreciate that my word or explanation may not be sufficient to satisfy you.The below is a transcript of a hearing held in January, before the judgement made as previously detailed. Paragraph 8 confirms that it is the mortgage deed that has not been signed by the lender.

 

http://www.scribd.com/doc/144639277/1PB48636-c-THU-09-MAY-2013-1423a-at-BLACKPOOL-County-Court-HHJ-BUTLER-Judgment-PDF-TUE-15-JAN-2013-TMB-LAMB-Void-Mortgage-Orders

 

- "signed by each individual, and sealed by each corporation whose electronic signature it has" If my memory serves me correctly, you have a copy of your mortgage deed, does it have any electronic signatures ? If not, is section 91 relevant ?

 

- "However, an actual transfer, conveyance or assignment, an actual lease, or an actual mortgage are not within the scope of section 2 at all" The last few words or an actual mortgage are not within the scope of section 2 at all, do stand out to clarify that section 2 does not apply to an actual mortgage.

 

The reference to Thompson v Foy [2009] EWHC 1076 and section 27 may provide you with the answer to your question

 

Jerry

 

"If not, is section 91 relevant ?"

...relevant insofar that the document meets the description in section 2.

 

"...do stand out to clarify that section 2 does not apply to an actual mortgage"

I agree with this statement which does not conflict with my own prior assertion that LPMPA1989(2) applies only to the contract for the future mortgage i.e. the offer/agreement/contract document that explicitly defines the terms and conditions of the actual mortgage as a disposition to be granted. Helden v Strathmore Ltd [2011] 2 EGLR 39. Please do not feel any need to reply if you do not want to enter into debate.

[IS IT ME?]

I for one do not think this is for real , I asked if this is posted by some one with another name before ?

I will post up later what a lot of the legal teams are saying about this judgement and the reason why it was given and that is " FLOOD GATES " of claims and every thing that comes with that

But the LAW is the LAW and its how the judge Interprets it and you are aware of the appeal?

[Jeremy Belknap]

I for one do not think this is for real , I asked if this is posted by some one with another name before ?

I will post up later what a lot of the legal teams are saying about this judgement and the reason why it was given and that is " FLOOD GATES " of claims and every thing that comes with that

But the LAW is the LAW and its how the judge Interprets it and you are aware of the appeal?

 

I would answer your question in the negative. The case was not posted by someone with another name before.

 

Whilst I can understand your attitude towards anyone that posts something that disagrees with your beliefs, I would ask you to show and demonstrate at the very least mutual respect. I was mistaken and believed that you and others would want to be made aware of such a case. It is not a mistake I intend to repeat.

 

Jerry

Edited August 25, 2013 by Jeremy Belknap

[Jeremy Belknap]

"If not, is section 91 relevant ?"

...relevant insofar that the document meets the description in section 2.

 

"...do stand out to clarify that section 2 does not apply to an actual mortgage"

I agree with this statement which does not conflict with my own prior assertion that LPMPA1989(2) applies only to the contract for the future mortgage i.e. the offer/agreement/contract document that explicitly defines the terms and conditions of the actual mortgage as a disposition to be granted. Helden v Strathmore Ltd [2011] 2 EGLR 39. Please do not feel any need to reply if you do not want to enter into debate.

 

The link to an earlier hearing at paragraph 24 may clarify this for you

 

Jerry

[IS IT ME?]

As you say

[IS IT ME?]

This is really what its about

If found to be correct, the argument would obviously be of major concern to mortgage lenders and would require an urgent and whole-scale review of existing and future residential property mortgage investments.

STRAY FOCUS PEOPLE

.Fisher and Lightwood's Law of Mortgage [2010] 13th edition, page # 41 & 42, para # 3.6 states: "... Defective legal mortgage ... A document, which for some defect or form (but which is otherwise valid), fails to take effect as a legal mortgage will, subject to what follows, will be a good equitable mortgage. The basis of this is the court's power specifically to perform a contract to create a legal interest in land. However, for an informally executed legal mortgage, made after 27th September 1989 to take effect as an equitable mortgage, it must nonetheless comply with the provisions of the Law of Property (Miscellaneous Provisions) Act 1989, s2 in relation to the formalities required for the creation of an equitable mortgage ... Moreover, as informally executed mortgages are frequently executed only by the mortgagor, this may result in many such mortgages not creating any contract and security interest at all ... To be an equitable mortgage, the instrument must comply with s.2 of the 1989; United bank of Kuwait -v- Sahib [1997] CH 107 CA. This in turn means that the document must bear the signatures of both parties. Compliance with the requirements of the Law of Property Act 1925 s53(1)a), which provides that only the signature of the person disposing of the equitable interest (i.e. the mortgagor) is insufficient ..."

Edited August 25, 2013 by IS IT ME?
missing text

[IS IT ME?]

and theres

FISHER AND LIGHTWOOD’S LAW OF MORTGAGE [2010] affirms, at page #71 paragraph #6.6, the null & void status of equitable charges on land absent lawful ‘disposition-registration’:-

 

“… An instrument which creates an equitable charge and contains an agreement to create a legal charge, but fails to comply with the formalities for a legal mortgage on land {see SAHIB [1996]}, will still create a valid equitable charge {the agreement would, however, have to comply with the provisions of the Law of Property (Miscellaneous Provisions) Act 1989 s.2} …

 

… An agreement to create a charge which fails to comply with the requirements of the law will not take effect as an equitable charge as being the immediate disposition of an equitable interest in land in accordance with the Law of Property Act 1925 s.53(1)(c )

so again all this is wrong and you are right, please not another one

[Jeremy Belknap]

If during your hearing it is your intention to rely on the above and and references to United Bank of Kuwait v Sahib , I feel compelled to ensure you are aware that in that case there was no mortgage deed.

[IS IT ME?]

nO, JUST TO SHOW ITS NOT ALL CLEAR AND ITS UP TO WHAT JUDGE YOU GET.

[IS IT ME?]

sorry caps locked on

[UNRAM]

The link to an earlier hearing at paragraph 24 may clarify this for you

 

Jerry

 

sorry doesnt clarify for me. please can you state the point you are raising?

[UNRAM]

If during your hearing it is your intention to rely on the above and and references to United Bank of Kuwait v Sahib , I feel compelled to ensure you are aware that in that case there was no mortgage deed.

 

To my knowledge this thread does not rely on UBK vs Sahib. Im happy to be challenged on this point...

[Jeremy Belknap]

To my knowledge this thread does not rely on UBK vs Sahib. Im happy to be challenged on this point...

 

I was referring to the comments made by is it me? both of which relied upon United Bank of Kuwait v Sahib, a case about the deposit of title deeds

 

This is really what its about

If found to be correct, the argument would obviously be of major concern to mortgage lenders and would require an urgent and whole-scale review of existing and future residential property mortgage investments.

STRAY FOCUS PEOPLE

.Fisher and Lightwood's Law of Mortgage [2010] 13th edition, page # 41 & 42, para # 3.6 states: "... Defective legal mortgage ... A document, which for some defect or form (but which is otherwise valid), fails to take effect as a legal mortgage will, subject to what follows, will be a good equitable mortgage. The basis of this is the court's power specifically to perform a contract to create a legal interest in land. However, for an informally executed legal mortgage, made after 27th September 1989 to take effect as an equitable mortgage, it must nonetheless comply with the provisions of the Law of Property (Miscellaneous Provisions) Act 1989, s2 in relation to the formalities required for the creation of an equitable mortgage ... Moreover, as informally executed mortgages are frequently executed only by the mortgagor, this may result in many such mortgages not creating any contract and security interest at all ... To be an equitable mortgage, the instrument must comply with s.2 of the 1989; United bank of Kuwait -v- Sahib [1997] CH 107 CA. This in turn means that the document must bear the signatures of both parties. Compliance with the requirements of the Law of Property Act 1925 s53(1)a), which provides that only the signature of the person disposing of the equitable interest (i.e. the mortgagor) is insufficient ..."

 

and theres

FISHER AND LIGHTWOOD’S LAW OF MORTGAGE [2010] affirms, at page #71 paragraph #6.6, the null & void status of equitable charges on land absent lawful ‘disposition-registration’:-

 

“… An instrument which creates an equitable charge and contains an agreement to create a legal charge, but fails to comply with the formalities for a legal mortgage on land {see SAHIB [1996]}, will still create a valid equitable charge {the agreement would, however, have to comply with the provisions of the Law of Property (Miscellaneous Provisions) Act 1989 s.2} …

 

… An agreement to create a charge which fails to comply with the requirements of the law will not take effect as an equitable charge as being the immediate disposition of an equitable interest in land in accordance with the Law of Property Act 1925 s.53(1)(c )

so again all this is wrong and you are right, please not another one

 

Jerry

[UNRAM]

Re: The recent case of The Mortgage Business Plc v Lamb [1] reported here

 

http://www.walkermorris.co.uk/business-insights/social-medias-mortgage-revolution-does-not-materialise

 

"The judge also explained that section 27 LRA does not go so far as to say that a disposition required to be completed by registration (such as a mortgage) is created by registration and that it does not therefore exist or operate in equity before registration."

 

Can anyone offer an interpretation of this please? Why would the judge bother saying that it doesn't exist when the law states simply "it does not operate at law until registered?

The law: LRA2002 27 Dispositions required to be registered

 

(1)If a disposition of a registered estate or registered charge is required to be completed by registration, it does not operate at law until the relevant registration requirements are met.

What's the judges point?

[Jeremy Belknap]

sorry doesnt clarify for me. please can you state the point you are raising?

 

The point to which I attempted to raise was that the agreement is a contract for a disposition whereas, a deed is the actual disposition

 

Jerry

[UNRAM]

The point to which I attempted to raise was that the agreement is a contract for a disposition whereas, a deed is the actual disposition

 

Jerry

 

agreed. the contract, with whatever label it is given, is required to meet the form defined in LPMPA1989 section 2 (if it exists). If it doesn't there is essentially no simple contract for the future mortgage (disposition), and, bar the assertions made in this thread regarding amendments made after this case - we are back to Eagle Star vs Green & Anor...

 

More from the report: "Lamb's appeal argument, put as simply as possible, was that her mortgage was null and void for want of statutory formality because it was signed by the borrower only and not the lender (as is the case with the vast majority of mortgage deeds) and as such it did not comply with LP(MP)A; therefore the mortgage did not exist at law and so could not be completed by registration as required by LRA; and thus it was not binding on the borrower."

 

I am guessing by "mortgage" they refer to "charge/deed" and not "contract". This is a repeat case of Eagle Star vs G&A is it not?

Edited August 25, 2013 by UNRAM

[Jeremy Belknap]

Re: The recent case of The Mortgage Business Plc v Lamb [1] reported here

 

http://www.walkermorris.co.uk/business-insights/social-medias-mortgage-revolution-does-not-materialise

 

"The judge also explained that section 27 LRA does not go so far as to say that a disposition required to be completed by registration (such as a mortgage) is created by registration and that it does not therefore exist or operate in equity before registration."

 

Can anyone offer an interpretation of this please? Why would the judge bother saying that it doesn't exist when the law states simply "it does not operate at law until registered?

The law: LRA2002 27 Dispositions required to be registered

 

(1)If a disposition of a registered estate or registered charge is required to be completed by registration, it does not operate at law until the relevant registration requirements are met.

What's the judges point?

 

The Judge referred to the following case Thompson v Foy [2009] EWHC 1076 (Ch) (20 May 2009)

 

http://www.bailii.org/ew/cases/EWHC/Ch/2009/1076.html#para144

 

121. Mr Wood argued that the time at which a registrable disposition takes place is the time at which it is registered. That, he said, follows from the rule in section 27 (1) that such a disposition only operates in law from the date of registration. Accordingly, on the facts of the present case the only relevant date for deciding whether Mrs Thompson's right to set aside the transaction was protected is 10 April 2007. I reject this submission. First, section 27 (2) (f) identifies the disposition as the grant of a legal charge, not its completion by registration. Second, the language of section 29 (1) contemplates that the time of the disposition and the time of registration may be different (even though this may change, for practical purposes, once e-conveyancing comes into being). The relevant interest must be one which affects the charge at the date of the disposition. Third, Schedule 3 paragraph 2 © contemplates an inspection at the time of the disposition. Thus must mean an inspection at the date when the legal documents are executed and the money is released. In my judgment, on the facts of this case the date of the disposition was 5 April 2007. Accordingly, if actual occupation must exist at one date only, then in my judgment the date of the disposition (5 April) is the relevant date.

 

Jerry

[Jeremy Belknap]

agreed. the contract, with whatever label it is given, is required to meet the form defined in LPMPA1989 section 2 (if it exists). If it doesn't there is essentially no simple contract for the future mortgage (disposition), and, bar the assertions made in this thread regarding amendments made after this case - we are back to Eagle Star vs Green & Anor...

 

More from the report: "Lamb's appeal argument, put as simply as possible, was that her mortgage was null and void for want of statutory formality because it was signed by the borrower only and not the lender (as is the case with the vast majority of mortgage deeds) and as such it did not comply with LP(MP)A; therefore the mortgage did not exist at law and so could not be completed by registration as required by LRA; and thus it was not binding on the borrower."

 

I am guessing by "mortgage" they refer to "charge/deed" and not "contract". This is a repeat case of Eagle Star vs G&A is it not?

 

Your guess appears to be correct

 

At paragraph 13 http://www.scribd.com/doc/144639277/1PB48636-c-THU-09-MAY-2013-1423a-at-BLACKPOOL-County-Court-HHJ-BUTLER-Judgment-PDF-TUE-15-JAN-2013-TMB-LAMB-Void-Mortgage-Orders

" In simple terms, as I understand it now, the argument goes that the mortgage deed upon which the respondent relies, which is the document signed by Mr Hellak and Mrs Lamb, the document dated 10th August 2007 by the respondents, the deed undoubtedly that they executed in the presence of a witness, which on traditional analysis is the mortgage deed - it describes it self as “This mortgage deed”and which asserts that thereby the borrower charges the relevant property and which includes a request for an entry on the Register, is not in fact the mortgage.

 

That, having regard to the provisions of section 27 of the Land Registration Act 2002, perhaps inadvertently and unintentionally, Parliament has introduced a provision which makes this document of itself no longer the mortgage. The argument carefully put by Mr Fergus, and I hope I understand it in substance, is that the reality is that a mortgage is only now created and enforceable at law once it is properly and duly registered and that which must be properly and duly registered is a contract to create a mortgage contract, and the contract by reason of section 2 of the 1989 Act should be signed not only by the borrowers, but by the lender. It is not a deed of course: it is a contract, so it has to have both parties as signatories to it."

 

Jerry

[UNRAM]

Your guess appears to be correct

 

At paragraph 13 http://www.scribd.com/doc/144639277/1PB48636-c-THU-09-MAY-2013-1423a-at-BLACKPOOL-County-Court-HHJ-BUTLER-Judgment-PDF-TUE-15-JAN-2013-TMB-LAMB-Void-Mortgage-Orders

" In simple terms, as I understand it now, the argument goes that the mortgage deed upon which the respondent relies, which is the document signed by Mr Hellak and Mrs Lamb, the document dated 10th August 2007 by the respondents, the deed undoubtedly that they executed in the presence of a witness, which on traditional analysis is the mortgage deed - it describes it self as “This mortgage deed”and which asserts that thereby the borrower charges the relevant property and which includes a request for an entry on the Register, is not in fact the mortgage. ...

 

Jerry

 

I also agree with you that there is a lot of confusion over what a mortgage really is. The most interesting I thing I have discovered from this is that the mortgagor is a "purchaser" of a mortgage... This seriously challenges the (my) assumption of the borrower/lender relationship... to one of purchaser/service provider...

Edited August 26, 2013 by UNRAM

[UNRAM]

Your guess appears to be correct

 

At paragraph 13 http://www.scribd.com/doc/144639277/1PB48636-c-THU-09-MAY-2013-1423a-at-BLACKPOOL-County-Court-HHJ-BUTLER-Judgment-PDF-TUE-15-JAN-2013-TMB-LAMB-Void-Mortgage-Orders

" In simple terms, as I understand it now, the argument goes that the mortgage deed upon which the respondent relies, which is the document signed by Mr Hellak and Mrs Lamb, the document dated 10th August 2007 by the respondents, the deed undoubtedly that they executed in the presence of a witness, which on traditional analysis is the mortgage deed - it describes it self as “This mortgage deed”and which asserts that thereby the borrower charges the relevant property and which includes a request for an entry on the Register, is not in fact the mortgage.

 

That, having regard to the provisions of section 27 of the Land Registration Act 2002, perhaps inadvertently and unintentionally, Parliament has introduced a provision which makes this document of itself no longer the mortgage. The argument carefully put by Mr Fergus, and I hope I understand it in substance, is that the reality is that a mortgage is only now created and enforceable at law once it is properly and duly registered and that which must be properly and duly registered is a contract to create a mortgage contract, and the contract by reason of section 2 of the 1989 Act should be signed not only by the borrowers, but by the lender. It is not a deed of course: it is a contract, so it has to have both parties as signatories to it."

 

Jerry

 

Fergus' statements were misguided. The contract is not registered. The deed is registered. The Land Registry refer to the deed and the charge interchangeably. There is no seperate charge.

Edited August 25, 2013 by UNRAM

[UNRAM]

ref: http://www.scribd.com/doc/144639277/1PB48636-c-THU-09-MAY-2013-1423a-at-BLACKPOOL-County-Court-HHJ-BUTLER-Judgment-PDF-TUE-15-JAN-2013-TMB-LAMB-Void-Mortgage-Orders

 

“There then appears to be an argument with regard to section 2 of the Lawof Property (Miscellaneous Provisions) Act 1989. I have before me the case of Helden v Strathmore Ltd [2011] EWCA Civ 542, which makes it clear tome that section does not apply to this particular mortgage. It was not acharge for the future. Even if it were signed technically three or four days before completion took place, that was to enable the matters to be perfectedon the day and authority was effectively given to the solicitors to do that, so again I find no compelling reason as to why that argument should succeed at trial.”

 

Mistake: Helden referred to contracts for a charge in the future, not a charge in the future as stated above...

 

"A contract for amortgage in the future, he said, would be within the reach of section 2. An actual mortgage would not. They held in that case that the document in Mr Helden’s case was an actual disposition. Accordingly, section 2 did not apply and the reference tosection 53 of the Law of Property Act in that very same case was not relevant".

 

Conclusion: Any borrower referring to their deed as their contract is destined for a fall... The simple contract (requiring the signatures pursuant to UK law) for the future disposition is the mortgage offer not the deed... It even defines the terms and conditions that will be applied to the future disposition.

Edited August 25, 2013 by UNRAM

[IS IT ME?]

JB

I think you had better re read your post 971 and look again.