Repossession questioned by deeds not being signed

[bhall]

Apple

Here is the full reply;

 

Upon reading(?)lol the application dated 10th may under sec 108(2) of the LR Act 2002

and upon the tribunal considering that the application ought to be stuck out as there is no reasonable prospect of the application succeeding.

 

It is ordered as follows;

 

Her Majesty's land reg is to be removed as the respondent[ person against whom an order is sought] to this application

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

 

This order is made pursuant to rules 9 and 10 of the tribunal procedure (first tier tribunal property chamer rules 2013.

Reasons,

 

1 The application is to set aside a charge dated xxyyzzz made between (1) Lender and (2) the borrower HM land registry is not a party to that charge. 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.

So, HM land registry should not be named in part 3 of the application but the lender should be named instead of HM land registry.

 

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 requires execution by the borrower.

 

The applicant does not contest that they executed the charge so dated. The charge is not in a form showing it required to be executed by the lender.

 

The authorities relied on by the applicants concerned whether documents had been properly executed and not whether a lender is required to execute a charge.

 

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

and that's it.

 

what I would say is that there has been no CH1 form nor have they really read the application because it does very clearly state that the lender should execute the deed.

 

I also note is uses the term generally, always and why say the tribunal can not rectify the register because it's not a document?

 

so what do you think apple lets prove your right.

 

Is It Me?

 

You also posted the above on 13 July 2013 post # 202

[bhall]

Is It Me?

 

Before you accuse me of saying things, remember it was you that actually said it please

 

If you can 't remember what you have said may I suggest that you re-read the thread.

Edited October 24, 2013 by bhall

[bhall]

bhall what my lender has actually said about costs is that they are going to ignore the jurisdiction of the court and force their legal costs from me (which can't amount to much if the last post is confirmed...) ahead of either responding to the application or attending the tribunal. Well played lender. After sending me 4 notices she then went on to deter me from replying by informing me that I had been and was being charged for my replies. Pleasant.

 

In most t&c's you agree to indemnify the lenders costs.

 

I have not read those for your lender so I don't know what they say

[IS IT ME?]

SO why then ben have they not just stuck it out pay tell us.

[UNRAM]

SO why then ben have they not just stuck it out pay tell us.

I was just asking the same question myself... surely they will be operating to Tribunal Rules Section 9... http://www.legislation.gov.uk/uksi/2013/1169/article/9/made

 

why has it not been struck out?

[bhall]

SO why then ben have they not just stuck it out pay tell us.

 

As I have said before I think it is for the best that a hearing is held to determine this matter, officially once and for all. The chamber has said that it will apply the decision to future applications.

 

So as things stay on the internet forever, in future when they receive such an application they need only refer to the judgement of the hearing.

[UNRAM]

In most t&c's you agree to indemnify the lenders costs.

I have not read those for your lender so I don't know what they say

standard lender T&C's agreed under terms of the "mortgage agreement" in advance of signing the deed referenced from a form of charge containing obligations for advances not executed by the lender. please note bhall i am not anticipating a reply to this post...

[bhall]

I was just asking the same question myself... surely they will be operating to Tribunal Rules Section 9... http://www.legislation.gov.uk/uksi/2013/1169/article/9/made

 

why has it not been struck out?

 

Wouldn't it make more sense to hold a hearing and deal with the matter once and for all ?

 

Court hearings are held everyday for matters that don't stand a chance

[bhall]

standard lender T&C's agreed under terms of the "mortgage agreement" in advance of signing the deed referenced from a form of charge containing obligations for advances not executed by the lender. please note bhall i am not anticipating a reply to this post...

 

I will see if I can find them on the Net tomorrow to find the actual wording

[UNRAM]

Wouldn't it make more sense to hold a hearing and deal with the matter once and for all ?

no not if it had no chance of succeeding. they would only have to reply "it has no chance of succeeding" with reasons previously stated. surely that would be as effective...

[bhall]

Anyway Ben needs his beauty sleep, so good night

[bhall]

no not if it had no chance of succeeding. they would only have to reply "it has no chance of succeeding" with reasons previously stated. surely that would be as effective...

 

I would disagree but you would expect that

 

You might first want to consider rule 31(1) then rules 23 and 24 - might shine a light on the reason why there is going to be a hearing

 

Night

 

Ben

Edited October 25, 2013 by bhall

[UNRAM]

I will see if I can find them on the Net tomorrow to find the actual wording

the wording is secondary to the context in which the wording exists...

 

something along the lines of "blah blah blah you will pay us our legal costs and other costs blah blah whatever we determine you will ask no questions blah blah you will raise no issues we will charge you what we want and strap it your mortgage when we want blah blah blah you will do as we say blah blah blah etc blah blah blah"

 

however i draw your attention back to the CONTEXT... a non-executed deed containing lender obligations... as stated i do not expect a coherent reply... ill post this back up in a couple of pages time...

Edited October 24, 2013 by UNRAM

[UNRAM]

standard lender T&C's agreed under terms of the "mortgage agreement" in advance of signing the deed referenced from a form of charge containing obligations for advances not executed by the lender. please note bhall i am not anticipating a reply to this post...

just in case we lost sight of the CONTEXT here it is again. Apple I realise you are probably going to say "UNRAM you are repeating yourself AGAIN" but thats probably because there is a point being made that is not being addressed... my lender has used costs as a weapon in the first line of its defense to deter me... using terms and conditions in the CONTEXT presented here...

Edited October 25, 2013 by UNRAM

[applecart]

Thank you Apple, all changed from LPA to LRA X

 

Hi Matka41......

 

You did realise that if we are talking section 52....we are talking the LPA........???

 

If you have caused section 52 of the LPA to read as section 52 of the LRA...you will be portraying something different...

 

check your DEFENCE again hun.....

 

Even if you have sent it off...and they pick you up on it at court....you must at least know how to explain that it was a 'typo'....and be able to explain the difference.......ok?

 

Apple

[applecart]

The majority of what you say here Ben meets the 'approved form of charge' by HMLR

 

It does not meet the formalities in relation to the Deed required by statute.

 

Remember.....You started off at one point advising that the RRO did not apply to 'individuals' (Borrowers).....you now conveniently tell us that the RRO was responsible for 'amending' the law in relation to 'individuals' (Borrowers) - in particular you refer to section 1 (2) and 1 (3).....

 

So, when it suits your convenience.... it is ok to say, 'yes' the RRO applies to Borrowers...then, when it does not assist your point.... you change tack and tell us...'no'...the RRO does not apply to Borrowers.....

 

You will note.... I have remained consistent in what the LAW says Ben...... there is no 'F' in my understanding of the LAW.....

 

So, are you happy (at this point...afterall, we know you may yet change tack again at some point) to accept that section 1 (3) applies to Borrowers and their duty to sign the Deed?

 

Whether you are or NOT.....

 

You will find that in both section 1 (2) and section 1 (3) the Legislator.......has REMOVED the words 'by the person making it' from BOTH sections Ben......you need to remove the 'F' from your contentions and stick to the LAW....oh, and when you do make sure you quote it correctly......otherwise you end up with those very 'FLAWS' you keep inserting into the LAW that you mistakenly apportion to my good self!!

 

Apple

 

eeeeerrrrmmmm Ben......have you forgotten this?

 

 

Apple

[applecart]

just in case we lost sight of the CONTEXT here it is again. Apple I realise you are probably going to say "UNRAM you are repeating yourself AGAIN" but thats probably because there is a point being made that is not being addressed... my lender has used costs as a weapon in the first line of its defense to deter me... using terms and conditions in the CONTEXT presented here...

 

Hi UNRAM

 

When you speak of 'it's first line of defence'....are you saying the lender has responded to your application to the chamber? or are you referring to them responding to the letters you send them?

 

Apple

[applecart]

Lol not hitting a raw nerve am I.

 

I won't be quiet until either you stop posting your fanciful ideas or the Property Chambers reaches a judgement.

 

So sit back, relax and enjoy, Ben is here to stay ;-)

 

 

Raw nerve??? oh pleeeaaassee...... !!!

 

You forget, your battle is not with APPLE ...... it is with the LEGISLATOR........

 

It would appear that each and every time that I post up that which is what the Legislator says.... it is you who feels the need to contest it......I wonder why??

 

Apple

[applecart]

Applecart, you are very close to overstepping the mark.

 

behave.

 

 

What on earth is this supposed to mean?..... have you or any mod looked into the post I directed you to made by Lea_HTH yet??

 

If I ask Ben to be 'quiet'....then it's up to him to respond...he has done so....

 

If you take issue with me - then you should take issue with Ben and Lea_HTH too.......

 

You can't have one rule for one and another for others.......

 

Apple

[applecart]

Thank you givehimamask, much appreciated, Apple when you say make sure the presentation is correct what do you mean? do i number each paragraph? Thank you so much I will make sure I know this for when I am in court so I can explain myself, thanks for the overview of the main points I have copied and saved it. I have another cause of action I want to raise about my mortgage that has nothing to do with this topic which is personal to me and I really want it on the courts record, will it be ok to add it onto my defence form under a seperate heading? I am so grateful for all the help and advice from all you lovely people I really am

 

Hi Marika41

 

Another cause of action?

 

Be careful that you do not tie yourself up in knots.....you have yet to get to grips with LPA separate from LRA......You have yet to put an application together for the Chamber.....try not to spread yourself too thin......

 

Apple

[applecart]

Contrary to the above -

 

"You are the PROPRIETOR of the REGISTERED CHARGE"

 

 

Dearest Ben, Yes, the Borrower is the Proprietor of the Registered Charge......in fact....the Borrower is not only the Proprietor of the Registered Charge Ben....The Borrower is the ABSOLUTE PROPRIETOR.....by virtue of which he/she is the one who has POWER to cause a 'charge' to be entered on the title in the name of any lender he/she chooses to lend money from......

 

Think about it Ben.....How else would the Lender get on the title.....???

 

 

I would ask everyone to look at their Title Deeds.

 

This is EXACTLY what we are doing Ben......we are looking at the DEED....AS A DEED.....NOT as an 'approved form of charge'

 

Marika has already posted that their Title Deeds state-

 

2. 05.09.1995 REGISTERED CHARGE dated 11 August 1995 to secure the money's including the further advance therein mentioned.

3. (30.10.2007) PROPRIETOR Lloyd's Bank Plc etc

 

The lender as confirmed by all of your title deeds is the proprietor of the registered charge.

 

The lender is shown on the title register as the proprietor of the 'charge'...Anything noted in the 'charges section' is a 'notice'.....in this case, the Lenders name in the 'charges section' simply denotes that the Borrower owes him money/indebtedness......the lender is not the owner of the REGISTERED CHARGE OR THE REGISTERED ESTATE........The ABSOLUTE PROPRIETOR is noted in the PROPRIETORSHIP section of the Title Register.......You will note Ben....it will be the Borrower who is noted there.....

 

The borrower being the proprietor of the registered charge is just another one of Apple's fanciful ideas based on their misunderstanding of property law.

 

Dearest Ben.........Let's say the Borrower pays off the loan.......what happens to the lenders name?....will it remain on the register??...Let's say the Borrower never ever causes any other lenders name to noted on the title register..i.e never loans any money ever again.......will the lenders name still be on the title??......No of course NOT!.......Who's name will remain in that instance.....will the title register disappear Ben because there is no lender showing on the title Ben??.....No of Course it WON'T....because the ABSOLUTE PROPRIETOR (the Borrower) name will remain!!!!

 

You grant the charge to the lender, when you give the charge to the lender, the lender owns the charge

 

Cor Ben, your getting good at this : ) ........ That's right, the Borrower has power to secure indebtedness - he/she does so by means of a Deed..... that Deed is also used as a form of charge as approved by HMLR..... the form of which is immaterial......as you know......However....it is statute that says the DEED MUST BE VALID...... do you get it now?

 

Apple please stop ignoring the law. It doesn't help anyone

 

We would ALL be grateful for you to do the same.....Working for HMLR is one thing...you will learn exactly how to recognise an 'approved form of charge'.....clearly they do not teach you anything to do with recognising a VALID DEED......so, with respect; we are talking DEEDS here ..... not just 'approved forms of charge'

 

Land Registration Act 2002

 

Schedule 2 - Registrable Dispositions: Registration Requirements

Part 1 Registered Estates

 

Creation of a Legal Charge

 

8. In the case of the creation of a charge, the chargee, or his successor in title, must be entered in the register as the proprietor of the charge.

 

The law confirms that the chargee (the lender) must be registered as the proprietor of the charge.

 

He is so registered as the 'proprietor of the charge'......

 

The borrower is the grantor as he grants the charge to the lender, making the lender the chargee.

 

You negate to mention, that the Borrower remains the ABSOLUTE PROPRIETOR

 

 

And to set the record straight, I have never said that the lender was the proprietor of the legal estate. That is a claim incorrectly made by you with your fanciful ideas about mortgage by demise - when the mortgage deeds posted are for a mortgage by legal charge which is a different type of mortgage

 

 

You yourself posted up the Law Commission report Ben...even then, you ignored what it said....a charge by way of legal mortgage has the same effect as a mortgage by demise.......are you trying to say that when the lender includes the words 'charge by way of legal mortgage' on the deed, that he is not looking to create the same 'effect' as a mortgage by demise Ben???.... I think you will find that that is exactly what the Lender is looking to do......even though the LAW tells YOU and THEM.....it is OBSOLETE.....they continue to circumvent the LAW Ben...

 

That's why, it is necessary for Borrowers to get to grips with the LAW....they will come to understand the difference that those words make and mean and the implications.......and put a stop to it......it is UNLAWFUL.......

 

 

Apple

[lesterlass]

Not sure if this is any help?

 

https://360.optimalegal.co.uk/2013/warning-secured-lenders-do-you-sign-mortgage-deeds/

 

Publications

 

 

Warning for secured lenders – do you sign mortgage deeds?

 

22 August 2013 | in Property

by Dan Marland, Professional Support Lawyer

 

Optima Legal has dealt with a number of cases recently where the borrower has alleged that the mortgage deed is void and unenforceable because the lender has not signed it.

Usual practice is that lenders do not sign mortgage deeds. If these claims were to succeed, they would have an enormous impact on the entire secured lending industry.

The argument

The claims stem from section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (“LP(MP)A”), which provides:

“(1) A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.

(2) The terms may be incorporated in a document either by being set out in it or by reference to some other document.

(3) The document incorporating the terms or, where contracts are exchanged, one of the documents incorporating them (but not necessarily the same one) must be signed by or on behalf of each party to the contract.”

Subsection (6) states that a “disposition” has the same meaning as in section 205 of the Law of Property Act 1925, which confirms that a mortgage or charge is a disposition. Consequently, borrowers have argued that a mortgage is a contract for the disposition of an interest in land and, therefore, requires the signature of all the parties in accordance with section 2 of the LP(MP)A.

The correct position

This argument is wrong, and misunderstands the nature of a mortgage. A mortgage is an actual disposition and not an agreement for a disposition. Section 2 of the LP(MP)A clearly applies to a contract for the disposition of an interest in land. It does not apply to the actual disposition itself. Section 2 applies to contracts but not to deeds.

The agreement for the lender to make a loan advance, in return for which the borrower will grant a charge over the property, is made up of the lender’s mortgage offer and the borrower’s acceptance of that offer. It follows that this agreement for mortgage must be in writing and signed by the parties.

However, the mortgage deed itself is simply the granting of the security by the borrower to the lender. This is the disposition of the interest in the property. It is a unilateral set of obligations entered into by the borrower, executed as a deed, not a contract. As a result, section 2 does not apply. As long as the mortgage deed was validly executed by the borrower the lender can enforce the obligations it contains, including any mortgage conditions incorporated by reference.

What have the courts said?

The relationship between a deed and section 2 of the LP(MA)A was considered by Lord Justice Mummery in the Court of Appeal, in an application for permission to appeal. The case was Eagle Star Insurance Company Ltd v Green & Challis [2001] EWCA Civ 1389.

Mr Green stated that, in accordance with section 2 of the LP(MA)A, the mortgage required the signature of all parties to it as it was a contract for the disposition of an interest in land.

Mummery LJ stated:

“This is not a case of a contract: it is a case of a deed…a distinction is drawn between the formal requirements affecting the execution of the deed and the formal requirements governing contracts.”

He went on to confirm that:

“Section 2 does not apply to deeds; it applies to contracts. It may be a contract for the sale of land, it may be a contract for some other kind of disposition of an interest in land… A deed is a different kind of instrument from an ordinary contract; and it is not a requirement of the execution of a deed that it should comply with the requirements of section 2 of the LP(MA)A. That is clear. Section 1 refers throughout to deeds, section 2 refers throughout to contracts, clearly recognising that they are two different legal concepts.”

Mr Green relied upon the case of United Bank of Kuwait plc v Sahib [1996] 3 All ER 251, which confirmed that there had to be a single written document incorporating all the terms and signed by the parties and not merely a deposit of title deeds by way of security in order to create a mortgage or charge. Mr Green claimed that if the mortgage in the United Bank of Kuwait case was governed by section 2 of the LP(MA)A, so should his mortgage. The United Bank of Kuwait case was relied upon because Mr Green claimed that within the mortgage deed, there was a contract by him in the form of the covenant to repay. There were also contractual provisions or covenants by Eagle Star.

Mummery LJ did not believe that the United Bank of Kuwait case assisted Mr Green because it was a case where there was no deed. It was a case of a purely informal equitable mortgage by deposit of deeds.

Formalities for deeds

In accordance with sections 85, 86 and 87 of the Law of Property Act 1925, a legal mortgage or charge by way of legal mortgage over land can only be created by deed. Therefore, section 2 of the LP(MA)A cannot apply to the legal mortgage itself, as it must always have been created by deed.

For the deed to be valid it must be executed in accordance with section 1 of the LP(MA)A, which states:

“(2) An instrument shall not be a deed unless:

(a) it makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise); and

(b) it is validly executed as a deed:

(i) by that person or a person authorised to execute it in the name or on behalf of that person, or

(ii) 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

(2A) For the purposes of subsection (2)(a) above, an instrument shall not be taken to make it clear on its face that it is intended to be a deed merely because it is executed under seal.

(3) An instrument is validly executed as a deed by an individual if, and only if:

(a) it is signed:

(i) by him in the presence of a witness who attests the signature; or

(ii) at his direction and in his presence and the presence of two witnesses who each attest the signature; and

(b) it is delivered as a deed.”

Conclusion

There is no requirement for the deed to be executed by the lender. Unlike a contract, a deed is generally enforceable despite a lack of consideration; therefore, as the lender is not entering into any obligations, it is not necessary for it to execute the deed.

The deed operates to grant security for the mortgage loan provided by the lender by way of legal charge against the property. That security is and can only be given by the borrower. As the only party having obligations under the deed is the borrower, it is not necessary for the lender to sign the deed.

 

 

LL

[applecart]

Of course I will be here, as for Apple being correct, you already know what the Property Chamber has told you. Do you really think they will turn round and say they are wrong. Just take a look at the debt avoidance consumer forums and even some of the freeman ones, even there people are saying this won't work.

 

Apples arguments are not based on the law they are based on Apple's interpretation of the law. The law and Apples interpretations are very different things as will be confirmed by the Property Chamber in January.

 

I see you are hopeful that the chamber will take your interpretation of section 1 (2) LPMPA 1989 and 1 (3) to say the 'person making it'....still applies huh...... yeah.... ok Ben.......

 

I wish I was wrong Is It Me?, I do really wish Apple is right but Apple isn't

 

Ben..... check out section 1 (2) lpmpa 1989 as amended again mate.....then come tell me I am wrong ok?.....oh and rule 113 in regard to deeds of variation....and so on and so on....

 

As I have said before, this might buy some time for some people but what happens to people that face a judge like PJ, who had no interest in the Property Chamber ?

 

You will come to see just exactly what this thread will do for every Borrower....and impact on you guys at HMLR and Lenders in due course.....roll on January.....I simply can't wait : )

 

If Marika's judge has the same point of view what do you think is going to happen to Marika based on the defence that has been posted ?

 

The District Judge will have to adjourn the hearing...he may not like it....but....he cannot ignore the grounds upon which the defence calls for the adjournment.....Marika can put away the money until the outcome of her application to the chamber.....her application may be different from Is It Me's friends......they will have to look at it independently Ben...... Marika's lender.... has a charge and has no 'approved form of charge in its name.....and the C & G did not execute Marika's deed.....there is no deed of variation Ben......

 

UNRAM has already been told he is going to have costs added. Who is going to pay for them, you ?? Apple ?? No

 

Notably the Lender is keeping very quiet about the costs that it will have to pay to UNRAM......Apple won't be assisting them to pay UNRAM...no, not at all....!!!!

 

 

Ben

 

I recall, when I posted up the 'draft written presentation'....you were adamant that it would be 'struck out'...... you will note....your cries of 'doom and gloom' did not come to fruition.....

 

You were adamant that submissions to do with 'mortgages by demise' was totally irrelevant.....

 

You now change tack.... you say Marika's application is all 'doom and gloom'......you pinch holes into every single post that she makes and every single response posted in her favor.....

 

The Chamber accepted Is It Me's application...... they are accepting 00000's of applications Ben......

 

They are doing so....regardless of what you post on this thread.....instead of discouraging Borrowers Ben... your posts are encouraging more to make applications.....

 

Do you really think if anyone was taking any notice of you that the number of application would increase???

 

I may be wrong on my interpretation....but each and every viewer of this thread ...read what you say....they read what I say....then they read the LAW for themselves .....they then make their own decision ....... and it would appear ......that regardless of what you or I say.... Borrowers are clearly relying on what the LAW says .....they are making applications so that the LAW will protect them Ben....

 

Apple

[applecart]

Hi Lesterlass

 

Yes, we have seen Optima's take on this topic.....we reviewed it and rebuked it as irrelevant!!

 

NOONE on this thread is promoting that section 2 of the LPMPA 1989 is to do with the Deed : )

 

Apple

[applecart]

Oh come now Is It Me?, you know exactly what has been posted in this thread already.

 

The Property Chamber has told you

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

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

3. They even told you that the Land Registry's own version of the mortgage deed does not require execution by a lender, except where there is a note on the register of an obligation to make further advances has been applied for.

 

eeeeeeerrrrrrmmmmm..... excuse ME.....Marika's title notes a 'further advance'.....can you tell us ALL.... why is is that C & G did not execute the DEED then Ben????

 

The Property Chamber has told UNRAM

 

1.The Tribunal has no jurisdiction to grant declaratory relief or

2. Provide an indemnity or

3. Award Damages or

4. On an application under s.108(2) LRA 2002, make an order for alteration of the register

 

Yes... we now know this..... we are tweaking the applications to include Rule 40 Ben......we are guided by the Chamber every step of the Way.......

 

Going by what the Property Chamber has already told you and what it had told UNRAM, do you really see the Chamber declaring all mortgage deeds void because they have not been signed by the lender ?

 

On the contrary, the Chamber highlight what we have missed out...we correct it and re-submit......so, yes the writing is on the wall Ben....roll on January and beyond : )

You must be able to see where this is heading, they have pretty much told you already.

 

As for p.j's case, p.j posted that the judge said that he did not care and is not interested about the property chamber or any applications as "he knows his job" - p.j said his case is on hold until the agent confirms who p.j is paying his mortgage too, not because the deed wasn't signed etc.

 

All of the above has been taken from posts made in this thread.

 

Apple