Repossession questioned by deeds not being signed

[applecart]

Well I can tell you this.

 

1. There isn't general discussion in the circles I move in about this issue.

2. There isn't a single piece of case law that I've managed to find that specific states that a mortgage deed is void if the lender doesn't sign it as far as residential mortgages are concerned.

 

I look forward to any developments, I find it incredibly interesting.

 

For the record, given that you're such a hit shot in this area, why don't you work within the field?

 

How do you know that I don't.... this is a forum... it is not every truth that is known or stated...but ask yourself one thing.... how does Apple know so much????

 

Apple

[sequenci]

 

where I live does not alter the LAW and it will not affect the outcome of the decision at the Chamber......this is about Is It Me's Friend....do you want to concentrate your interest there please...that what we call being professional.....keep the thread on point please... ; )

 

Apple

 

Didn't you ask about me and my mortgage interests earlier in this thread? Just saying

[sequenci]

How do you know that I don't.... this is a forum... it is not every truth that is known or stated...but ask yourself one thing.... how does Apple know so much????

 

Apple

 

I was under the impression you worked in a different area of employment, apologies if I'm mistaken.

 

It's my bed time now, I'm up at ridiculous o'clock as I've a long journey back to my 'in the week' home.

 

Enjoy the rest of your evening, catch you tomorrow

[applecart]

Didn't you ask about me and my mortgage interests earlier in this thread? Just saying

 

yes I did, because you were clearly speaking from a 'novice' point of view.....no offence intended.....by that what I mean is that I could easily tell that you had no knowledge of mortgages, no knowledge of the paperwork involved and no knowledge of the securitisation market..... as a novice.... you acknowledged my suspicions..... that comment is not a slight against you Sequenci for I know you do a champion job on the CaG in other areas.....as do the entire Site Team...I am not being sarcastic when I say that by the way.... I am stating the way I see it... the truth if you will.... at point blank range.....

 

When it comes to areas that you have no knowledge... where you have not had time to put in the research..... you need to be careful how you post.....ostrich syndrome will not assist you....

 

the ball is already rolling..... this is an alternative approach to assist every borrower.....it is based on the LAW....they have every right to exploit it ...if you will.... it is their right....

 

Sit back...you may yet learn something that will assist you and your long term interest in all things mortgages ; )

 

Apple

[applecart]

I was under the impression you worked in a different area of employment, apologies if I'm mistaken.

 

It's my bed time now, I'm up at ridiculous o'clock as I've a long journey back to my 'in the week' home.

 

Enjoy the rest of your evening, catch you tomorrow

 

Enough Said ; )

 

Apple

[applecart]

The security and the borrowing are separate yes.... However the terms are incorporated into the deed and for most is all that's signed, so if the deed is deemed to be void, has the borrower any terms? The stupid lender has basically given me some money. On the hope the world will never find out! No terms no agreement no contract. Cheers!,

 

Equity does not assist a 'volunteer'.....just one of the many equitable doctrines that come to mind here ; )

 

Apple

[GiveHimaMask]

Well I can tell you this.

 

1. There isn't general discussion in the circles I move in about this issue.

2. There isn't a single piece of case law that I've managed to find that specific states that a mortgage deed is void if the lender doesn't sign it as far as residential mortgages are concerned.

 

I look forward to any developments, I find it incredibly interesting.

 

For the record, given that you're such a hit shot in this area, why don't you work within the field?

 

Hi Sequenci,

 

Re the above, point 2, and I know you really want to help if you can

 

Have you seen a commercial mortgage case or a commercilal deed case where signatures have been the issue and if so what was the outcome?

 

Thanks

[GiveHimaMask]

Hi Apple,

just back from the rugby, we was robbed..... jeeezzzzz not a lot of loovvveeee here on the thread tonight,will post up soon, need to gather my thoughts,

[IS IT ME?]

one said he does not deal with deeds then he does or contracts which are not the same.

Has any one got a signed copy of the terms signed by the lender I think not.

 

So I am MORE than happy to let this go to the chamber

[GiveHimaMask]

Hi Apple,

 

Chamber representation good rsearch... but you know them solicitors, they just take instructions, no skin of their nose, not their liability issue, need to get that meter running, to get them some of the Queens pounds.

[GiveHimaMask]

Hi Kegi,

What Apple is raising in this post is a senario, the senario being what the Chamber might do when faced with the reality that the deed is found to be void. Now you need to read the post before so that you can get a feel for it.

[GiveHimaMask]

Hi Apple,

 

Interesting post your senario, Yip, you've seemed to have covered everythig to put it right for them Lender's,.... phew, but is was a close shave.... I guess it's time for more champange....as they're back on that gravy train....but wait there is a Flaw... you see... it's all against the Law.... so I guess we'll have to wait... until someone else determinates.... and then we'll see what can be done... when the borrower has won.

Edited November 25, 2013 by stu007
removing cocaine

[GiveHimaMask]

Hi Marika41,

 

As promised, here is the revised version, as I said just a fwe additions to help you better understand and if there's anything further that comes up, then I'll amend it again just to keep you all in the frame

 

 

Hi ALL,

Let me put some things in context here purely for those who might be struggling to get their heads around the Legal Acts, the Sections, the Clauses and Legal interpretations. For I know if you do not have a basic understanding then this will melt your head. So,let me start with the counter argument and I will keep it simple, because I believe things are best kept simple.

Section 2 – This is for the disposition of land, to you and me that means a Sale. So for example, if you were a land owner and wanted to sell some land or, you were a property developer and you wanted to sell say an office block or maybe a development site you want to offload, then section 2 is where Property Law and the Land Registry would direct you. This is a sale which will be handled by a contract and the contract will bind the parties to their agreement. Now, the relevant clause states that this sale will only become complete upon registration, what this means is that should the parties not register their sale ( remember the land registry want to know who owns what) then should there be a dispute later on, then, there is a risk that the sale may be judged void. So, that’s what section 2 is all about in a simple form.

Now, you might say, but what about all those cases that have been quoted, you know, the ones’ where the people tried to establish that the lender hadn’t signed and the judge found not in their favour. Well, sadly these people new deep down that a Lender had to sign the DEED because that was the way they would have always known it, remember, when they looked at their Deed and it was a Deed because it said so on its front page (face) ( just like the one you have for your home) they could not see the Lenders signature on it, but when they went looking for the relevant clauses in the Acts, just to put things right, they could not find it, and unfortunately they choose a clause were it was clear that both must sign, that is, the sale contract, the disposition clause - Section 2.

Now, the counter argument here on this thread has been jumping for joy on this case law, they are using it to say what a judge has not said, they have been ramming it down your throat at every opportunity, even when it has no bearing on the current discussion, you might say these are robo posts just to keep you unbalanced.

So forget section 2 arguments, their just blowing smoke up your **s.

Remember what the JUDGES HAVE SAID – “SECTION 2 THAT’S GOT NOTHING TO DO WITH DEEDS”.

So you’ll ask, what’s all this talk about equity, implied terms etc, will that’s just these guys kicking the tyres on it, and you know what guy’s talk when there kicking the tyres on it’, yeah your right a load of b*****ks, and as for part performance well, that’s absolute b*****ks. All they’re doing here is adding to your burden, to make you believe you’ll never get you head around it. But bear them no mind and you will be fine. Don’t worry, should anything come up that is of substance then you will be the first to know and a solution found for it.

SECTION 1 – THAT HAS TO DO WITH DEEDS, deeds have nothing to do with a sale. You didn’t start out to sell your house did you, you may have been looking to raise some funds against its value. So, you were borrowing some money to either buy a property or borrow some money to improve it. For that you were willing to give your Lender a charge, a charge by way of security just to prove your indebtedness to him. Now, the Land Registry also want to know if anyone who owns Land (and in your case that will be your house and anything within your boundary will be the land) if there are any encumbrances upon it, so this charge needs to be registered and the Law is quite specific how to do it.

Now you might say, well as I am borrowing some money, why do I not have a loan agreement, you know the one where I sign and my Lender signs this would be so much simpler. You can’t do that with property, the Law says it must be done by DEED, now if, you have ever read or heard or watched some Shakespeare, have you ever heard him use the term, ‘Now I give you my Loan Agreement’, nah, but you will have heard ‘Now I give you my Deed’, well that’s how far Deeds go back, you will note the quote that goes back 400 years in the draft application, well that’s how far Deeds go back and even further for your info. So, what the Law has done is carry this idea through the centuries because it is fit for purpose, it binds the parties to the deed by their signatures’ and just in case you’re thinking that... no, it’s not there to let the other side swindle you.

Oh, and it must be registered. (you remember the land registry must know who owns what in land) So you might say, a DEED is a loan agreement, well yes but its form is different, it has certain formalities in order to comply with property law and in order that the transaction is recorded at the Land Registry, this is to avoid fraud ( the government don’t want someone to swindle them either).

But, more importantly to you is that it’s reciprocal agreement and that means, (Lender), I’m going to lend you some money to buy your home or lend you some money to improve it, (You) well if you do I will grant you a charge for your indebtedness and (Both),we agree you will not enforce your security if I keep my payments up. This is fundamentally what the parties are agreeing to and it must be in writing and in the form of a deed.

Now in Law you cannot ‘agree to agree’ for that’s an absurdity, so what you have to do is, you sign it and they sign it, then there can be no doubt.

Now that is what this thread is all about, remember they haven’t signed it, it takes you through the Law relating to Deeds and what else is relevant in Law in relation to property as it is necessary you understand it as you will be a Litigant in person.

So, when those guys come on here telling you, the deed does not have to be signed, well, they’re just blowing some more of that smoke up your **s

So, there you have it, stick it on you fridge along with the other papers just so you may refer to it. Hey, you could even wrap your LAMB case in it (ha,ha,ha)

Hope this helps –

[ukaviator]

I haven't time to read 4088 posts tonight but here is something I read a few months ago:

 

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.

 

 

 

 

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

[GiveHimaMask]

Thanks UKaviator,

 

I think our concern here would be the term 'usual practice' or somtimes they call it 'common practice' now I dont know what that means in terms of legal drafting or the Law and I wish they would be more precise. Seems to me they do not know or they are hedging their bets.

 

On that I bid everyone goodnight.

[ukaviator]

From what I remember signing for our mortgage and deeds the solicitor explained that the mortgage deed is not a contract it is an assignment of the property involved . The contract is the mortgage offer and its acceptance as evidenced by the receipt of the monies and is made up of the offer and the linked terms & conditions and the deed itself. The borrower has assigned the interest in the property and given away the right to receive all benefit of the sale proceeds and the right to unchallengable ownership of their property.

 

The mortgage deed must be explained to you to ensure you understand what you are signing and that you are fully aware of the lender’s rights. By signing the mortgage deed you are agreeing to the terms of the mortgage and you are also agreeing to the lender securing a legal charge over the property for the duration of the term of the mortgage. The mortgage company now have rights to the property.

 

Goodnight all

[applecart]

Oh capital letters, someone shouting lol

 

 

You can shout as much as you want

 

For a form of charge or other instrument to be a deed it must comply with section 1(2) of the LPA (MP) 1989 as amended -

 

“(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.

 

Now that we know what formalities a form of charge or other such instrument must meet to be a valid deed, let's go through each one and use the accord mortgage deed as an example (as I know it is one close to Is It Me?'s heart)

 

http://www.accordmortgages.com/documents/ACCL0002-Mortgage-Deed-E&W.pdf

 

The first requirement for a form of charge to be a valid deed -

 

(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);

 

The Accord Mortgage Deed has the heading 'mortgage deed'.

 

The Accord Mortgage Deed also states - "Signed as a deed by the Borrower"

 

"The borrower must execute this charge as a deed"

 

So the mortgage deed meets the requirements of s.1(2)(a) as it is clear on the face of it that it is a deed and it expresses itself as signed as a deed.

 

The second requirement for a form of charge to be a valid deed -

 

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

 

To see what is required for it to be validly executed as a deed by that person - we must look to s.1(3)

 

(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.”

 

As we already know the Accord Mortgage Deed is signed by the borrower, so (a) is taken care of.

 

The Accord Mortgage Deed, also includes a section for the signature to be attested (witnessed), so (a)(i) is also taken care of.

 

That leaves us with s.1(3)(b) it has to be delivered to be validly executed by an individual.

 

Bibby confirms

 

335. The critical thing is that the person who has signed the deed must have separately indicated that he intends to be bound by the deed. Mere signature is not enough. Nor is it enough that what looks like a deed has been given to the person who appears to be the beneficiary of it – the issue is not whether the document has been physically handed over to the beneficiary, but whether the person whose deed it is supposed to be intended to be bound by it.

 

The critical thing is if the borrower has separately indicated his intent to be bound by his deed.

 

The sending of the Accord Mortgage Deed by the legal representative of the borrower shows very clear intent that the borrower intends to be bound by his deed.

 

So that is also s.1(3)(b) taken care of.

 

So the Accord Mortgage deed meets all of the requirements of s.1 of the LPA (MP) 1989 as amended to be a valid deed.

 

I did not 'shout'.....only used capitals to emphasise the points Ben.... something which I have advised you of previously by the way....

 

Let's sort out the above particular F'LAWs out whilst I'm here hey?....

 

It is without doubt that it is Article 7 (3) of the RRO 2005 that amended section 1 (2) of the LPMPA 1989.....

 

Lets look at Article 7 (3) shall we.....it says this:

 

"Execution on behalf of another person

 

7. (1) After section 74(1) of the 1925 Act insert—

“(1A) Subsection (1) of this section applies in the case of an instrument purporting to have been executed by a corporation aggregate in the name or on behalf of another person whether or not that person is also a corporation aggregate.”.

(2) After section 36A(6) of the 1985 Act insert—

“(7) This section applies in the case of a document which is (or purports to be) executed by a company in the name or on behalf of another person whether or not that person is also a company.”.

(3) In section 1(2)(b) of the 1989 Act (requirements for valid execution as a deed), for the words from “by” to the end substitute—

“(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.”.

 

The headline text for the RRO 2005 Article 7 (3) is this: “Execution on behalf of another person”

 

Article 7 (1), (2) and (3) are all to do with ‘execution on behalf of another person’....

 

Notably it includes and makes reference to Section 1 (2) (b)... Not section 1 (3) (b)...ummmm??

 

So, if Article 7 (3) is making reference to amendments to section 1(2)(b)....who do you think is responsible for ensuring that the deed has been delivered?

 

Here is the amended version of section 1 (2) (b) again:

 

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

 

The Borrower has complied with section 1 (2) (a) and section 1 (3) – are we to also expect that the Borrower is to be liable to comply with section 1 (2) (b) also on behalf of the lender??.......no, I think not...that would be a ‘F’LAW

 

Remember section 1 (2)(b) was amended from:

 

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

 

To ALL of this:

 

"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"

 

Please notice if you will.... words like.. ‘authorised to execute’ and ‘on behalf of one or more of those parties’......those weren’t there before...wonder why the legislator felt it necessary to include them?....Could it be that he wanted to make it explicitly clear that a deed is not a deed until the lender has caused /authorised it to be executed by him or on his behalf??

 

Let’s not forget.....the lender does in fact actually execute the deed...but we learnt that he refrains from doing so until all the monies have been re-paid.....(Ben informed us that the lender uses the deed to discharge the charge so executes it at that point)

 

And...oh yes....lets not ignore Articles 7 (1) and (2) of the RRO....they refer us to section 74 LPA 1925 and the Companies Act 1985 (as amended by the Companies Act 2006 section 46)......ummmm??

 

I’m sure section 46 of the Companies Act 2006 said this:

 

46Execution of deeds

 

(1)A document is validly executed by a company as a deed for the purposes of section 1(2)(b) of the Law of Property (Miscellaneous Provisions) Act 1989 (c. 34) and for the purposes of the law of Northern Ireland if, and only if—

(a)it is duly executed by the company, and

(b)it is delivered as a deed.

(2)For the purposes of subsection (1)(b) a document is presumed to be delivered upon its being executed, unless a contrary intention is proved.

 

So, I think it is clear, the Approved form of charge is a deed ‘IF AND ONLY IF’.....It is Duly executed by the Company and...... it is delivered as a deed......oh and don’t forget.......

 

For the purposes of section (1)(b) a document is presumed to be delivered upon its being executed unless a contrary intention is proved

 

So, the Accord Deed does not meet the necessary formalities of a Deed at all....sorry ; (

 

Not unless you want to rely on common practice and 'F'LAWS of the LAW....need to ensure we keep away from those who continue to attempt to 'shoehorn' 'F'LAWS to fit.....the LAW

 

I should get this information up on your fridge too : )

 

Apple

[TimetogoRAM]

Apple, I like it. - I have received 2 emails from my lenders solicitors, the first saying that they are instructed to act on behalf of the lender, as previously posted..

 

The second most recent is an email which has been sent to the Chamber, copying me in, requesting further time from the Chamber to submit representations past the submission date due to the Chamber staying the application.

 

I have also received a phonecall from them confirming I have received these emails and asking my approval to continue correspondence in this way. (Suppose they do have to be nice to me - afterall I am paying them remember haha - as if!!)

 

I have not received anything from my lender confirming they have instructed anyone...

 

 

 

Apple, do you think I need to write to my lender asking if they have instructed a solicitor and referring them to Tribunal rule 14 (2)

 

(2) If a party appoints a representative, that party must send or deliver to the Tribunal and to each other party written notice of the representative’s name and address.

 

This is the second time the lender has breached the Chamber rules. The first being demanding costs.

[applecart]

Hi Apple,

 

Chamber representation good rsearch... but you know them solicitors, they just take instructions, no skin of their nose, not their liability issue, need to get that meter running, to get them some of the Queens pounds.

 

This tit bit was just one of the gaping holes in the scenario to evidence that.....3 firms of solicitors have bowed out in the knowledge that they have no chance of getting past the Tribunal without the borrower being informed by the actual lender of their appointment.....

 

The objection that Is It Me's friend received came from the first firm of solicitors.....so it cannot be relied upon.....so... right now there is essentially 'no objection' from Accord to the application at all....the firm of solicitors who submitted it have bowed out....it is for Accord to 'object' to the application.....it is Accords name on the title....not the firm of solicitors.....so, that's more than likely why they cannot get any solicitor to do it for them.....ah well.... Accord have until January to come forward...to inform Is It Me's friend as to who they are asking to represent them...including a name and address for their chosen solicitor firm.....the firm of solicitors will struggle whenever a witness statement is required for they cannot act in that regard for the lender.....not before the Tribunal......yes, they get away with it in the lower courts.....but have no chance with this application I'm afraid.....any witness statements will have to be from Accord only...

 

I think given that Is It Me has evidence that his lender has sold on the mortgage (i.e 'gone away') it will be interesting to see if Accord manage to materialise or not....

 

This lead case is developing nicely me thinks... : )

 

Apple

[applecart]

Apple, do you think I need to write to my lender asking if they have instructed a solicitor and referring them to Tribunal rule 14 (2)

 

(2) If a party appoints a representative, that party must send or deliver to the Tribunal and to each other party written notice of the representative’s name and address.

 

This is the second time the lender has breached the Chamber rules. The first being demanding costs.

 

Sometimes it's best to say nothing......Is It Me has said nothing.... the Chamber has said nothing.....follow the lead.... sing the same tune... and say nothing.....leave them to dig their own hole as deep as they like.... the deeper they dig.....the less likely they are going to be able to get out of it.....

 

Remind me, was it the 'lender' or the solicitor who wrote to you about costs?

 

Apple

[TimetogoRAM]

I did not 'shout'.....only used capitals to emphasise the points Ben.... something which I have advised you of previously by the way....

 

Let's sort out the above particular F'LAWs out whilst I'm here hey?....

 

It is without doubt that it is Article 7 (3) of the RRO 2005 that amended section 1 (2) of the LPMPA 1989.....

 

Lets look at Article 7 (3) shall we.....it says this:

 

"Execution on behalf of another person

 

7. (1) After section 74(1) of the 1925 Act insert—

“(1A) Subsection (1) of this section applies in the case of an instrument purporting to have been executed by a corporation aggregate in the name or on behalf of another person whether or not that person is also a corporation aggregate.”.

(2) After section 36A(6) of the 1985 Act insert—

“(7) This section applies in the case of a document which is (or purports to be) executed by a company in the name or on behalf of another person whether or not that person is also a company.”.

(3) In section 1(2)(b) of the 1989 Act (requirements for valid execution as a deed), for the words from “by” to the end substitute—

“(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.”.

 

The headline text for the RRO 2005 Article 7 (3) is this: “Execution on behalf of another person”

 

Article 7 (1), (2) and (3) are all to do with ‘execution on behalf of another person’....

 

Notably it includes and makes reference to Section 1 (2) (b)... Not section 1 (3) (b)...ummmm??

 

So, if Article 7 (3) is making reference to amendments to section 1(2)(b)....who do you think is responsible for ensuring that the deed has been delivered?

 

Here is the amended version of section 1 (2) (b) again:

 

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

 

The Borrower has complied with section 1 (2) (a) and section 1 (3) – are we to also expect that the Borrower is to be liable to comply with section 1 (2) (b) also on behalf of the lender??.......no, I think not...that would be a ‘F’LAW

 

Remember section 1 (2)(b) was amended from:

 

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

 

To ALL of this:

 

"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"

 

Please notice if you will.... words like.. ‘authorised to execute’ and ‘on behalf of one or more of those parties’......those weren’t there before...wonder why the legislator felt it necessary to include them?....Could it be that he wanted to make it explicitly clear that a deed is not a deed until the lender has caused /authorised it to be executed by him or on his behalf??

 

Let’s not forget.....the lender does in fact actually execute the deed...but we learnt that he refrains from doing so until all the monies have been re-paid.....(Ben informed us that the lender uses the deed to discharge the charge so executes it at that point)

 

And...oh yes....lets not ignore Articles 7 (1) and (2) of the RRO....they refer us to section 74 LPA 1925 and the Companies Act 1985 (as amended by the Companies Act 2006 section 46)......ummmm??

 

I’m sure section 46 of the Companies Act 2006 said this:

 

46Execution of deeds

 

(1)A document is validly executed by a company as a deed for the purposes of section 1(2)(b) of the Law of Property (Miscellaneous Provisions) Act 1989 (c. 34) and for the purposes of the law of Northern Ireland if, and only if—

(a)it is duly executed by the company, and

(b)it is delivered as a deed.

(2)For the purposes of subsection (1)(b) a document is presumed to be delivered upon its being executed, unless a contrary intention is proved.

 

So, I think it is clear, the Approved form of charge is a deed ‘IF AND ONLY IF’.....It is Duly executed by the Company and...... it is delivered as a deed......oh and don’t forget.......

 

For the purposes of section (1)(b) a document is presumed to be delivered upon its being executed unless a contrary intention is proved

 

So, the Accord Deed does not meet the necessary formalities of a Deed at all....sorry ; (

 

Not unless you want to rely on common practice and 'F'LAWS of the LAW....need to ensure we keep away from those who continue to attempt to 'shoehorn' 'F'LAWS to fit.....the LAW

 

I should get this information up on your fridge too : )

 

Apple

 

 

What is the answer to the lenders' point that the point of delivery exists when the deed is 'delivered' to HMLR with the 'true copy' sent from HMLR having the solicitors stamp saying "we certify this document is a true copy of the original"?

 

Or when they mention the fact that the point of delivery exists with the drawing down of the funds?

[TimetogoRAM]

Sometimes it's best to say nothing......Is It Me has said nothing.... the Chamber has said nothing.....follow the lead.... sing the same tune... and say nothing.....leave them to dig their own hole as deep as they like.... the deeper they dig.....the less likely they are going to be able to get out of it.....

 

Remind me, was it the 'lender' or the solicitor who wrote to you about costs?

 

Apple

 

Initially the lender and then the solicitor.

[applecart]

What is the answer to the lenders' point that the point of delivery exists when the deed is 'delivered' to HMLR with the 'true copy' sent from HMLR having the solicitors stamp saying "we certify this document is a true copy of the original"?

 

Or when they mention the fact that the point of delivery exists with the drawing down of the funds?

 

The answer is.....the point of 'delivery' does not exist until such time as the lender has complied with section 1 (2)(b) of the LPMPA 1989.

 

As you know the funds are released long before the deed is executed by the Lender....this is their risk.....it is a risk they chose to take....they did not intend that you or anyone would realise their certain activities would lead to this thread ..... or to the un-executed deed....

 

They knew they were going to sell on the loan... they have been repaid.... albeit not by you .... but that was never their plan ... they originated the 'mortgage'.... the risk now lies with the SPV and HMLR and the British Government to pick up the pieces....and the cost of course..... your repayments are intended to service the Mortgage Backed Securities..... but, I won't go too far down that road right now...

 

Suffice to say this....if the lender materialises....and can show that he has a valid agreement that meets section 2 of the LPMPA 1989... then he can come for the money that he failed to secure under the deed....compliance with section 2 is necessary because... he has to show that their is no fraud.... (statute of frauds Act Part 1V)....

 

As you will know... the lender cannot rely on 'part performance'... that's to say, he cannot rely that because your signature is on any one document that you are obligated to repay him.... certainly not when his signature is not there........ok?

 

Apple

[applecart]

Initially the lender and then the solicitor.

 

Ok......Did the Lender advise you that they were appointing that particular firm of Solicitors? .... and are you 100% sure it is YOUR lender that you are dealing with??

 

Check out the FCA register.... input your lenders details to check if they have regulatory authority (which they should Have) and then check to see if they have any 'approved representatives'....

 

I have a sneaky suspicion that it may be the approved representative that you are dealing with here and not the actual lender..ummmm?

 

Check it out... and come back to me on this = ok?

 

Apple

[steampowered]

Suffice to say this....if the lender materialises....and can show that he has a valid agreement that meets section 2 of the LPMPA 1989... then he can come for the money that he failed to secure under the deed....compliance with section 2 is necessary because... he has to show that their is no fraud.... (statute of frauds Act Part 1V)....

 

Applecart, this part of the Statute of Frauds Act 1677 is about one person offering a guarantee for the debts of another person. I don't see how that applies to the current situation or how it is relevant to s2 LPMPA 1989.