Repossession questioned by deeds not being signed

[applecart]

You mentioned that an equitable mortgage couldn't be possible due to part-performance, I was asking what about full performance? Does that make sense?

 

No, I'm sorry... it makes no sense.....please advise... What do you mean by 'full performance'?

 

Apple

[steampowered]

Its been a while since I looked at this, but my understanding is that an equitable mortgage could only be awarded if there is a loan agreement signed by both parties compliant with s2 LPA 1989. There is no need to have a signed Deed (or indeed any deed) for an equitable mortgage/charge to be awarded, but my understanding is that the underlying contract would need to comply with the relevant formalities in order to be treated as a contract for the disposition of an interest in land. Of course this is very much a back-up argument for the lender and it is only necessary to consider if the more important argument about whether a Deed of Charge signed only by the borrower is invalid.

 

I confess the point about why it is impossible to mortgage/charge registered land is still beyond my understanding, despite applecart's admirable attempts to explain it. The implications of this would be stunning - if people cannot mortgage or charge registered land then it would be almost impossible for anyone to get a substantial loan in order to buy a house. You would quite literally kill the housing market.

 

The bit I struggle with is how to reconcile with the Land Registration Act 2002 which expressly provides for legal charges over registered land and requires them to be registered (section 27 (1) (f) - http://www.legislation.gov.uk/ukpga/2002/9/section/27).

[sequenci]

No, I'm sorry... it makes no sense.....please advise... What do you mean by 'full performance'?

 

Apple

 

Carrying out whatever the terms of the contract stipulated in full.

[IS IT ME?]

But you say that , it could only be IF it is signed by both parties and A LOAN agreement as we know and so should you a DEED can not be a loan agreement by its very nature.

And no one has any thing signed by the lenders contacts or other whys.

[applecart]

Its been a while since I looked at this, but my understanding is that an equitable mortgage could only be awarded if there is a loan agreement signed by both parties compliant with s2 LPA 1989. There is no need to have a signed Deed (or indeed any deed) for an equitable mortgage/charge to be awarded, but my understanding is that the underlying contract would need to comply with the relevant formalities in order to be treated as a contract for the disposition of an interest in land.

 

Yes, this was my understanding too...in fact I think it is the 'Kuwait' decision that makes the point the same as you do here......I believe they even considered the 'shah v shah' case to say that when a deed is deposited...i.e not executed....the mere handing over/deposit of the 'deed' was enough to evince 'intention to be bound'.....however, 'Kuwait' then considered the effect that s.2 had when it came into force to say that if there is no contract that meets s.2...then as far as I understood that case....in the event that there is no contract.... then essentially 'equity'... will not assist a volunteer

 

Of course this is very much a back-up argument for the lender and it is only necessary to consider if the more important argument about whether a Deed of Charge signed only by the borrower is invalid.

 

We are not looking into 'whether a 'Deed of Charge' signed only by the borrower is invalid'.....because we know that the 'deed' as a form of charge would be of course valid.....the 'deed of charge' as you refer to it is the same as HMLR's 'approved form of charge'.....to which section 53 applies......

 

We are not misguided into believing that an 'approved form of charge' meeting section 53 is enough to meet the formalities of a 'DEED'......a 'Deed' is a 'Deed'......it must both be 'granted'....and then 'assumed'.....before a presumption of 'delivery' can be said to be in evidence......

 

I think it is very important that both Borrowers and Lenders get to grips with this very important distinction.......

 

We are not looking to set a side a 'deed of charge' (approved form of charge accepted by HMLR).......we are looking to the Chamber to determine if the Deed itself ....stand alone.....meets the necessary formalities of a deed.....for that it needs to be signed by the Borrower and executed by the Lender.......if it is both signed and executed ..... then both the Borrower and the Lender have nothing to worry about......Regrettably......it is not executed by the Lender......of that there is no issue....therefore the deed is void......

 

I confess the point about why it is impossible to mortgage/charge registered land is still beyond my understanding, despite applecart's admirable attempts to explain it. The implications of this would be stunning - if people cannot mortgage or charge registered land then it would be almost impossible for anyone to get a substantial loan in order to buy a house. You would quite literally kill the housing market.

 

Then if you do not understand - this means others may not understand also......Firstly, we do not say that registered land cannot be 'charged'.....of course it can be 'charged'.....it can be 'charged' with 'indebtedness' by way of notice entered on the borrowers title....

 

Against this the law says the Borrower cannot 'mortgage' the registered estate....a 'mortgage' is the complete 'disposition' of the registered estate...all rights, all interests too.....This is not permissible within the general law......there is a common practice that appears to have been 'ratified' by law to allow 'mortgages' of registered land to exist.....it is section 23 of the LRA 2002 that says the Borrower has no power to 'mortgage'.......and it is section 25 of the LRA 1925 that says anything that looks to secure more than money or moneys worth with or without interest 'is void'.....

 

A deed that expresses the words 'charge by way of legal mortgage'....has the same meaning as a 'mortgage by demise' or 'sub-demise'......so, any of these words....expressed as they appear to be on the majority of 'approved forms of charge'....are void as a Deed

 

So, in any event.....A Lender cannot expect any Borrower to be bound to terms that are wholly un-lawful. Notwithstanding the fact that the Deed has not even been 'assumed' by the Lender....

 

I do hear your fear that 'you would quite literally kill the housing market'.....However, the housing market will not die.....the housing market will continue.....it is the draconian 'securitised' market that will hopefully die......Lenders will stop using Borrowers homes and money to service 'Mortgage Backed Securities'......

 

Lenders cannot make money if they are not loaning money.....the housing market will be fine.....they can loan money - charged against a registered estate as a 'notice' (that's the Law).....they will have to execute the deed.....and service the loans themselves and build a relationship with Borrowers....not capitalist money markets........They will have to work within the LAW.

 

The bit I struggle with is how to reconcile with the Land Registration Act 2002 which expressly provides for legal charges over registered land and requires them to be registered (section 27 (1) (f) -

http://www.legislation.gov.uk/ukpga/2002/9/section/27).

 

I believe you 'struggle' with s. 27 (1)(f) simply because that section applies to 'dispositions'.....a 'disposition' of a registered estate or charge must be registered....right?......However, no borrower has the lawful right to create a disposition of the 'registered estate' ......the 'registered estate' belongs to the Borrower...he can not dispose of it......the 'registered charge'' belongs to the 'Borrower'......he cannot 'dispose' of it......the Borrowers rights and status as the owner of both the 'registered estate' and 'registered charge' is conclusive (s.58 LRA 2002)....therefore.....section 27 (1) (f) does not apply.....the entire section relates to 'dispositions'......

 

Therefore when you are looking for how that section relates to the Lender and Borrower....do not look at section 27 (1) (f)....for that is to do with the 'estate'....

 

Instead - look to section 27 (3):

 

(3)In the case of a registered charge, the following are the dispositions which are required to be completed by registration—

(a)a transfer, and

(b)the grant of a sub-charge.

 

so, if a 'mortgage' was Lawful...against a registered estate.... then section 27 would apply.....however.....the fact is .....section 27 (1) (f) only applies to 'dispositions' of the 'estate'.....for section 27 (1) to (f) to apply the estate would have to be 'un-registered'...

 

If Tilly Lambs estate was un-registered...then the lender had every right to refer to section 27 (1) (f)....but, I don't think it was an un-registered estate at all.....

 

Both Tilly Lamb and every othere Borrower of a registered estate and registered charge needs to look to section 32......that talks about 'Notices'......that's the section that applies to Lenders and Borrowers in relation to a registered estate.....

 

The Lender derives a 'sub-charge'.....by way of 'notice' on the Borrowers title....

 

 

 

Apple

[applecart]

Carrying out whatever the terms of the contract stipulated in full.

 

I'm sorry Sequenci......you've totally lost me....

 

The deed is lodged at HMLR without any terms attached ...... there is no 'it'.....so, there can be no terms of the 'contract' to perform....plus it's not that simple.....the Deed has to be valid before any 'terms' come into the picture.....

 

So, again, you've lost me.....sorry : (

 

Apple

[applecart]

But you say that , it could only be IF it is signed by both parties and A LOAN agreement as we know and so should you a DEED can not be a loan agreement by its very nature.

And no one has any thing signed by the lenders contacts or other whys.

 

This is the issue....and yet, it would seem that the lenders expect that they can rely on 'equity' or 'specific performance'......all I can say, is..... should have thought about that when you were rubbing your hands in delight at the money your derived off the back of the un-executed deed in the money markets.....

 

It's payback time.....

 

Apple

[steampowered]

My understanding is that true mortgages, in the old legal sense of the word, have not been used for land in several decades. The legal meaning of mortgage is a complete transfer of ownership to the creditor, with a promise of the creditor to transfer the property back when the debt is repaid. My understanding is that these days it is called mortgage by way of legal charge, which is really a legal charge not a mortgage in the ancient sense of the word, hence why borrowers sign a deed of charge.

[aptb74]

There is no escaping that lamb dealt with the question of does a lender need to sign the mortgage deed. This unreported case reached the judgement that a lender didn't. The judge reached this decision as a result of the earlier reported case of Heldon, in which the judgement was also that the mortgage deed didn't have to be signed by the lender. Both lamb and Heldon also relied upon s.53 of the LPA 1925

 

The Lamb case dealt with whether the deed was a contract of, or a contract for the disposition (mortgage), and it was found that the deed was a contract of, and therefore did not have to comply with s.2. However the lamb case did not address whether the deed complied with s.1(3) at the moment of signimg. The ‘it’ referred to in the LPMPA 1989 s1(3) refers to the deed in its complete form (consisting of all its component parts and all of their pages), including the terms and conditions and the mortgage offer (the agreement), ass upported by the judgment in Garguilo v Jon Howard Gershinson & Anr [2012] EWLandRA 2011_0377 (06 January 2012.

 

if the deed contains obligations for the lender to perform (such as an obligation to make further advances), then the lender must also sign the deed, this is supported by by Lightman J in the Murray v Guinness [1998] judgment:

“In my view s.2 of the Act imposes requirements for the validity of contractual obligations of the character there specified: the document in which any such contractual obligation is contained must be in the form specified in s.2 if the contractual obligation is to have legal effect….”

 

The lamb deed did not contain any such contractual obligations on the part of the lender, and so this argument was not considered. In my view where there is an obligation to make further advances there must be a preceding agreement that is signed by both parties, and if there is not then the deed must serve as a specialty contract and be executed by the lender.

 

 

The property chamber is aware of t he section 1 argument suggested by this thread, yet it still responded to alisono as it has. If there any possibility that there the assertions of this thread were even in the least bit correct, the Property Chamber would not have responded to alisono as it has.

 

As the property chamber is a crown agency, it can not be seen to be impartial, particularly in cases where an individual is challenging the banks. It there is a huge difference in the way the courts and tribunals interpret the law when both parties are corporations, and when one party is an individual

 

Section 1 contains no requirement for a deed to be signed by the lender.

 

A borrower can grant a mortgage to a lender even if it is a registered estate

 

A form of charge such as the ch1 form is a deed and meets the requirements to be a deed as specified by section 1

 

The ch1 even states that it is to be executed as a deed and "legal charge of a registered estate"

 

Agreed.

[applecart]

My understanding is that true mortgages, in the old legal sense of the word, have not been used for land in several decades. The legal meaning of mortgage is a complete transfer of ownership to the creditor, with a promise of the creditor to transfer the property back when the debt is repaid. My understanding is that these days it is called mortgage by way of legal charge, which is really a legal charge not a mortgage in the ancient sense of the word, hence why borrowers sign a deed of charge.

 

Yes, I see your point....however; leopards do not change their spots......a mortgage is a mortgage whichever century you are in.......

 

It matters not how a lender looks to 'shoehorn' a 'mortgage' to fit......the Law says a Borrower has no power to mortgage......no power to grant a charge by way of legal mortgage - for a charge by way of legal mortgage has the same effect as a mortgage by demise or sub demise.....

 

HLMR's approved form of charge does not meet the formalities necessary for a Deed...The Lender has not executed it....

 

It is regrettable that the 'common practices' have been overlooked for many years......However, it's good that we are debating this topic and are able to define for both the Lender and the Borrower that the Deed is void....and is apt to be set aside.....

 

 

Apple

[aptb74]

Lamb and Heldon of course aren 't the only cases - I have posted another case that was also unreported and was about a lender not signing the deed. It relied upon both Heldon and s.53 of the LPA 1925. All of these court judgements are a continuation of the judgement of Eagle Star being that a lender does not have to sign the mortgage deed for it to be valid, enforceable and resulting in repossession.

 

It is my view that Neuberger deliberated avoided United Bank of Kuwait v Sahib [1996], and his judgment was very cleverly worded. He said the s.2. argument was hopeless, as it did not apply to deeds, but he did not specify if section 2 argument applied to the implied contract for an equitable mortgage that arises from the deposits of title deeds, which in my view it does. In MOLTON FINANCE LTD. [No. 001609 of 1965] – [1968], Denning MR states:

 

“…It seems to me that when an equitable mortgage or charge is created by deposit of title deeds, there is an implied contract that the mortgagee or chargee may retain the deeds until he is paid. This implied contract is part and parcel of the equitable mortgage or charge. It is not a separate legal or common law lien. It has no independent existence apart from the equitable mortgage or charge. When the mortgage or charge is avoided for non-registration, then everything which is ancillary to it is avoided also...”

 

In the United Bank of Kuwait v Sahib [1996], Gibson LJ states:

 

“The effect of section 2 is, therefore, that a contract for a mortgage of or charge on any interest in land or in the proceeds of sale of land can only be made in writing and only if the written document incorporates all the terms which the parties have expressly agreed and is signed by or on behalf of each party. […] In the present case, for the reasons given, it seems to me clear that the deposit of title deeds takes effect as a contract for a mortgage and as such falls within s.2 […] I therefore conclude that by reason of s.2, the mere deposit of title deeds by way of security cannot any longer create a mortgage or charge.”

 

Every valid legal mortgage must be preceding by a valid equitable mortgage, being as the deed is for an legal mortgage and not an equitable mortgage, the equitable mortgage can only arise from the deposit of title deed, and as such gives rise to an implied contract, which itself must be 2.3 compliant since 26, September 1989.

 

Read the Heldon Judgment carefully and notice how the judgement says that Mr Heldon is mistaken in concluding that the contract must be in the deed because there is no other agreement, but also notice (perhaps because the argument was not put) that he does not say that there is no need for an agreement with 2-party signatories, but just that (in that particular case), the section 2 agreement was not to be found in the deed. Many would say that the judgement was per incuriam (a judgment of a court which has been decided without reference to a statutory provision or earlier judgment which would have been relevant).

[kegi]

apple like steam I can't get my head round of not being able to charge registered land does there have to be something showing on LR details to prove that this is the case or are you only referring to the charge deed because it says by way of legal mortgage that make it invalid leaving aside the signing of it argument

kegi

[applecart]

The Lamb case dealt with whether the deed was a contract of, or a contract for the disposition (mortgage), and it was found that the deed was a contract of, and therefore did not have to comply with s.2. However the lamb case did not address whether the deed complied with s.1(3) at the moment of signimg. The ‘it’ referred to in the LPMPA 1989 s1(3) refers to the deed in its complete form (consisting of all its component parts and all of their pages), including the terms and conditions and the mortgage offer (the agreement), ass upported by the judgment in Garguilo v Jon Howard Gershinson & Anr [2012] EWLandRA 2011_0377 (06 January 2012.

 

I agree with you on this valid point....for the Deed does not have to comply with section 2 for it is not intended that the Deed should look to 'dispose' of the Borrowers estate......and certainly, it did not contemplate the 'it' at all......Whereas again...as you correctly point out.... Garguillo found that if the 'it' is not in evidence...then the deed is void.

 

if the deed contains obligations for the lender to perform (such as an obligation to make further advances), then the lender must also sign the deed, this is supported by by Lightman J in the Murray v Guinness [1998] judgment:

“In my view s.2 of the Act imposes requirements for the validity of contractual obligations of the character there specified: the document in which any such contractual obligation is contained must be in the form specified in s.2 if the contractual obligation is to have legal effect….”

 

I have not seen this case you speak of - however it does appear that it makes it clear that even if the 'deed' is to be construed as meeting section 2 it must comply with it if the said terms contained within it are to have legal effect......

 

As we know.... the Deed does not meet the formalities of a deed for the lender has not executed it.....and of course.... it cannot be misconstrued as a contract for the complete disposition of the Borrowers estate....('mortgage')..... for the Borrower has no power to dispose of the legal registered estate...or the legal registered charge.....

 

The lamb deed did not contain any such contractual obligations on the part of the lender, and so this argument was not considered. In my view where there is an obligation to make further advances there must be a preceding agreement that is signed by both parties, and if there is not then the deed must serve as a specialty contract and be executed by the lender.

 

On the contrary, where the 'deed' makes mention of a 'further advance'.....the 'obligation' falls upon HMLR to enter and give notice of the lenders obligation to make a 'further advance' on the Borrowers title register.....this is to prevent other loans that may become secured on the title taking priority over the original lenders charge.......there is no need for a separate agreement document for that.....

 

The Deed is a 'speciality contract' in its own right.......it has to be 'assumed' by the Lender for its validity.....that means the lender must execute it.......if it has not been executed by the Lender...then it is void as a deed for want of 'delivery'....

 

As the property chamber is a crown agency, it can not be seen to be impartial, particularly in cases where an individual is challenging the banks. It there is a huge difference in the way the courts and tribunals interpret the law when both parties are corporations, and when one party is an individual

 

Do you have a link for this please?

 

 

Section 1 contains no requirement for a deed to be signed by the lender.

 

This is true....section 1 relates to the Borrowers signature ....

 

A borrower can grant a mortgage to a lender even if it is a registered estate

 

This is a fallacy - based on 'common practice' - ratified into law - due to ignorance of the Law.....

 

A form of charge such as the ch1 form is a deed and meets the requirements to be a deed as specified by section 1

 

A deed that meets HMLR's approved form of charge to which section 53 has been taken to apply.....does not meet the necessary formalities of a deed when the Lender has not executed it.......'a deed of charge' or even when termed as a 'approved form of charge' is not to be mis-construed with the Lenders duty to execute the deed as a deed for its validity as a deed...the lender must 'assume' the deed before any presumption of delivery in relation to section 1 (2)(b) LPMPA 1989 can be seen to be in evidence....

 

The ch1 even states that it is to be executed as a deed and "legal charge of a registered estate"

 

Again, pure fallacy..... shoehorned to meet the forms of charge that HMLR has approved by mistake for years against registered estates......HLMR have totally avoided its duty to enter 'notices' to secure indebtedness and in my view have facilitated 'mortgages' of registered estates .... when they should know that a borrower has no such power.....

 

 

 

Agreed.

 

On that, I am unsure what you mean when you simply state 'Agreed'???

 

Hi aptb74....welcome to this thread ; )

 

I have posted in 'blue' my responses to your post......if there is anything that you do not agree with; please ... let me know?

 

Apple

[applecart]

apple like steam I can't get my head round of not being able to charge registered land does there have to be something showing on LR details to prove that this is the case or are you only referring to the charge deed because it says by way of legal mortgage that make it invalid leaving aside the signing of it argument

kegi

 

Hi Kegi

 

Remember you can walk upto someones front door and not know who owns the land....we rely heavily and solely on whatsoever the 'title' held at HMLR's say in order to understand who owns what in the UK......

 

So, yes....everything must show at LR on that piece of paper known as the 'title register'.....they rely on the detail shown on the underlying deed... to mark the title register with their interpretation of what the deed says or means.....

 

HLMR have been trusted to be doing the right thing......... however, we are finding that the Deed is set up by Lenders..... only to meet the 'approved form of charge' NOT a 'DEED'....

 

A lender CAN charge registered land......what he CANNOT do is take a 'mortgage' over the Borrowers registered ESTATE or CHARGE......(the Borrower has no power to 'mortgage' either the estate or charge)...Yet despite this ..... HMLR have been charging registered land with 'mortgages' ..... we know this to be the case.....simply because the 'charge by way of legal mortgage' has the same effect as a 'mortgage by demise or sub-demise'....and ...of that there is no doubt.....

 

There is provision for the Lender to charge the Borrowers Registered Charge with indebtedness - that is supposed to be entered on the title as a 'notice'......see section 32 LRA 2002:

 

32 Nature and effect

 

(1)A notice is an entry in the register in respect of the burden of an interest affecting a registered estate or charge.

(2)The entry of a notice is to be made in relation to the registered estate or charge affected by the interest concerned.

(3)The fact that an interest is the subject of a notice does not necessarily mean that the interest is valid, but does mean that the priority of the interest, if valid, is protected for the purposes of sections 29 and 30

 

It is sub-section (3) above that Lenders are fearing...because ..... they know that the Deed is void......and they know that there is no doubt that the Chamber will determine that the deed is void...and their Charges will have to be removed.....

 

The 'hot potato'...... the Big Issue.....is ...... the securities markets....... what will happen there in relation to Mortgage Backed Securities??

 

That is not a Borrowers concern..... A Borrowers concern is the protection - within the law - against repossession of their homes.....the Law helps them to do that.....

 

Therefore; one cannot 'leave aside the signing of the it'..... for it is integral to the determination of the Deed and its validity....

 

Apple

[applecart]

It is my view that Neuberger deliberated avoided United Bank of Kuwait v Sahib [1996], and his judgment was very cleverly worded. He said the s.2. argument was hopeless, as it did not apply to deeds, but he did not specify if section 2 argument applied to the implied contract for an equitable mortgage that arises from the deposits of title deeds, which in my view it does. In MOLTON FINANCE LTD. [No. 001609 of 1965] – [1968], Denning MR states:

 

“…It seems to me that when an equitable mortgage or charge is created by deposit of title deeds, there is an implied contract that the mortgagee or chargee may retain the deeds until he is paid. This implied contract is part and parcel of the equitable mortgage or charge. It is not a separate legal or common law lien. It has no independent existence apart from the equitable mortgage or charge. When the mortgage or charge is avoided for non-registration, then everything which is ancillary to it is avoided also...”

 

In the United Bank of Kuwait v Sahib [1996], Gibson LJ states:

 

“The effect of section 2 is, therefore, that a contract for a mortgage of or charge on any interest in land or in the proceeds of sale of land can only be made in writing and only if the written document incorporates all the terms which the parties have expressly agreed and is signed by or on behalf of each party. […] In the present case, for the reasons given, it seems to me clear that the deposit of title deeds takes effect as a contract for a mortgage and as such falls within s.2 […] I therefore conclude that by reason of s.2, the mere deposit of title deeds by way of security cannot any longer create a mortgage or charge.”

 

Every valid legal mortgage must be preceding by a valid equitable mortgage, being as the deed is for an legal mortgage and not an equitable mortgage, the equitable mortgage can only arise from the deposit of title deed, and as such gives rise to an implied contract, which itself must be 2.3 compliant since 26, September 1989.

 

Read the Heldon Judgment carefully and notice how the judgement says that Mr Heldon is mistaken in concluding that the contract must be in the deed because there is no other agreement, but also notice (perhaps because the argument was not put) that he does not say that there is no need for an agreement with 2-party signatories, but just that (in that particular case), the section 2 agreement was not to be found in the deed. Many would say that the judgement was per incuriam (a judgment of a court which has been decided without reference to a statutory provision or earlier judgment which would have been relevant).

 

Yes, I hear you on these points made.....

 

The difficulty is this......you cannot 'mortgage' registered land....had Borrowers made this point clear...(along with the finding that a deed must be executed by a lender) as we do in the applications to the Chamber....there is no need for any Borrower to concern themselves with s.2 arguments for the contention pales into total insignificance .... because first....Lenders have to explain...what is a 'mortgage' doing ..... as applied to a 'registered estate'??

 

Apple

[applecart]

Thank you Is It Me....

 

I respect that this is your thread and have tried to hold true to the rules of the CaG to ensure that I remain focused to bring you enough detail to assist you and your friend move your application forward... I apologise to you for the times that I have engaged in debate that is not on topic.......and will look to ensure I keep it to a minimum moving forward....

 

I am guided by you to remind all Borrowers viewing this thread to remain FOCUSED and to REMEMBER the MAIN POINTS and thrust of this thread:

 

 

1 The Application was minded to be struck out on the premise that it was without merit.

2 The Chamber allowed time to make further submissions

3 We drafted the ‘written representation’ to amend the initial application to essentially ask for a determination of the deed (not the charge) with a view to set ting it aside on the following grounds:

 

a) The finding that it is the applicant who is the Registered Proprietor with owners powers to charge the registered estate..not the Lender

b) The finding that the applicant has no power to charge the registered estate with a ‘mortgage’.

c) The finding that a ‘charge by way of legal mortgage’ has the same effect as a ‘mortgage by demise or sub-demise’

d) The finding that a deed meeting the approved form of charge of HMLR is not a Deed that meets the necessary formalities in relation to ‘delivery’ of a deed

e) The finding that a deed meeting section 53 of the LPA 1925 does not meet the necessary formalities in relation to ‘delivery’ either....

f) The finding that the Deed must be executed thus ‘assumed’ by the Lender before any presumption of delivery can be said to be in evidence to meet section 1 (2) LPMPA 1989 (as amended) (RRO 2005).

g) The finding that the applicant cannot be bound to a deed on the presumption that he is wholly liable to both grant and assume the deed by way of his/her signature alone.

 

4 The Grounds set out above are supported not only by the protections and interpretation of the Law making sure but also case law decided in superior courts of record, (all of which relate to the setting aside of a deed for want of delivery and/or formality) namely:

 

a) Popham J in Hawksland v Gatchel (1601) Cro. Eliz. 835

b) Bibby Financial Services Ltd v Magson [2011] EWHC 2495 (QB)

c) Garguilo v Jon Howard Gershinson & Anr [2012] EWLandRA 2011_0377 (06 January 2012

 

****The Draft written submissions do not rely at any point on section 2 of the LPMPA 1989 ****

 

NB: Against the ‘grounds’ submitted in the ‘draft’ application the Lender cannot and understandably has not submitted to the Chamber that he has a lawful right to ‘mortgage’ a registered estate and he relies that it is ‘common practice’ to do so...and says this ‘common practice’ as relied upon by various un-related decisions and an un-reported case substantiate its ‘objections’ to the application going forward to a hearing... he also objects to say that the Borrower should be bound to the deed that he has not executed in reliance on ‘common practice’ ....’Common Practice’ is not the LAW....and it would be wholly misguided to walk into a superior court of record and admit that you have ‘mortgaged’ a registered estate...and notably; the lender has not done so.....or to walk into a superior court of record to rely that a deed that you have not executed will be misconstrued as one that is valid in relation to delivery based on the mis-conceived interpretations of the law based on a defence of ‘common practice’ ...’common practices’ .....circumvent the law....Consequently it is clear...there is NO DEFENCE ...

 

I would advise Borrowers to print off this page...stick it on the fridge and remind themselves.... this is what it is all about .... nothing else.....We want the Deed Set Aside... The register altered to remove the lenders charge...

 

If we have inadvertently missed any point....a decision from the chamber will have to let us know...we will amend and tweak.... re-submit and 'appeal'... if necessary.....

 

Apple

 

so, Above ..... as a reminder ..... are the main points ; )

 

We are Focused....We remain vigilant to ensure that the LAW prevails....

 

Apple

[kegi]

Hi Kegi

 

Remember you can walk upto someones front door and not know who owns the land....we rely heavily and solely on whatsoever the 'title' held at HMLR's say in order to understand who owns what in the UK......

 

So, yes....everything must show at LR on that piece of paper known as the 'title register'.....they rely on the detail shown on the underlying deed... to mark the title register with their interpretation of what the deed says or means.....

 

apple I may have this wrong again, so should the lenders name appear on the title in the owners section along with mine or only in the charges section

kegi If only in the charges section does that still means they mortgaged my estate by virtue of the name of the charge [ie by way of legal mortgage]

 

if that makes sense

kegi

[IS IT ME?]

Aptb74,

Thank you for your posts and they have been noted I see by our resident guru lol answered and delivered in their usual way.

[applecart]

Hi Kegi

 

Remember you can walk upto someones front door and not know who owns the land....we rely heavily and solely on whatsoever the 'title' held at HMLR's say in order to understand who owns what in the UK......

 

So, yes....everything must show at LR on that piece of paper known as the 'title register'.....they rely on the detail shown on the underlying deed... to mark the title register with their interpretation of what the deed says or means.....

 

apple I may have this wrong again, so should the lenders name appear on the title in the owners section along with mine or only in the charges section

kegi If only in the charges section does that still means they mortgaged my estate by virtue of the name of the charge [ie by way of legal mortgage]

 

if that makes sense

kegi

 

Hi Kegi...

 

The Lenders name should only ever be shown on the title in the 'charges' section

 

Likewise... in the 'charges' section...HLMR must give notice of the 'further advance'

 

The form of 'restriction'....entered by HMLR in the 'proprietorship' section denotes that the Lender is in possession of your legal estate....it should not be there when the dealing involved a registered estate....a 'restriction' is referred to as an 'encumber'..or rather a 'clog on the borrowers right to the equitable right of redemption in relation to a mortgage'......it restricts the borrower from dealing with their estate without the lenders consent - intended to apply only to an un-registered estate......however, the 'common practice' has shown that the law that applies to un-registered land has been 'adapted' and 'shoehorned' to make out that it applies to a registered estate - yet another of the un-lawful...common practices that go against the interest of a borrower......ratified into law.......

 

If the lenders name appears omly in the charges section and no where else......then the borrowers estate is not encumbered.......

 

A 'charge by way of legal mortgage'.... will always show the lenders name in both sections on the borrowers title ..... giving the same effect as a 'mortgage by demiseor sub-demise'.....of which you as the borrower has no power to grant.....

 

Add to this a finding that the deed is void....for the lender has not executed it

 

Does this explanation assist?

 

Apple

[applecart]

Aptb74,

Thank you for your posts and they have been noted I see by our resident guru lol answered and delivered in their usual way.

 

Thanks for this Is It Me ; )

 

I think it is important to keep the 'focus'.....it is clear some Caggers are still looking to defend section 2....and they are making out good contention.....it's good to see ....

 

You never know which angle a lender may try to shoehorn s.2 and s.53 to 'fit' at the hearing.....

 

Best to stay vigilant... : )

 

Apple

[IS IT ME?]

Apple Thanks once again and see that you are on the case again lol

I can see that the lenders who have securitised are the only ones who are worried about this thread and the effect it would have on their markets none of the others have any thing to worry about.

So I see them trying to con the chamber or us but I for one am ready and know there little games so am onto it.

[kegi]

 

Hi Kegi...

 

The Lenders name should only ever be shown on the title in the 'charges' section

 

Likewise... in the 'charges' section...HLMR must give notice of the 'further advance'

 

The form of 'restriction'....entered by HMLR in the 'proprietorship' section denotes that the Lender is in possession of your legal estate....it should not be there when the dealing involved a registered estate....a 'restriction' is referred to as an 'encumber'..or rather a 'clog on the borrowers right to the equitable right of redemption in relation to a mortgage'......it restricts the borrower from dealing with their estate without the lenders consent - intended to apply only to an un-registered estate......however, the 'common practice' has shown that the law that applies to un-registered land has been 'adapted' and 'shoehorned' to make out that it applies to a registered estate - yet another of the un-lawful...common practices that go against the interest of a borrower......ratified into law.......

 

If the lenders name appears omly in the charges section and no where else......then the borrowers estate is not encumbered.......

 

A 'charge by way of legal mortgage'.... will always show the lenders name in both sections on the borrowers title ..... giving the same effect as a 'mortgage by demiseor sub-demise'.....of which you as the borrower has no power to grant.....

 

Add to this a finding that the deed is void....for the lender has not executed it

 

Does this explanation assist?

 

Apple

 

It certainly does and in language I can understand I won't comment anymore till I re-look at the deeds I have in my keeping

thanks

kegi

[kegi]

Apple Thanks once again and see that you are on the case again lol

I can see that the lenders who have securitised are the only ones who are worried about this thread and the effect it would have on their markets none of the others have any thing to worry about.

So I see them trying to con the chamber or us but I for one am ready and know there little games so am onto it.

 

IS IT ME are you saying now that this thread only concerns securitised mortgages and no one else has anything to worry about in relation to the points apple has been making I thought it applied to all mortgages securitised or not ,if so that shines a whole new light on the subject matter and in my view needs clarifying in quick time [ apple]

kegi

[GiveHimaMask]

Hi Kegi,

 

Now you do have a point here, I would have

thought it applied to all mortgages, but I will leave that to the Apple to respond.

 

Your early post to me all I can answer is... Exactly

 

GiveHimaMask

Edited November 17, 2013 by GiveHimaMask
left out a bit

[alisono]

God evening all. I have posted the petition on face book and linked in not real a twitter person but a friend has over2,000 followers so will ask them tomorrow . I have forwarded to Channel 4 and BBC so will let you know if I get a response.

 

onwards And upwards on this