Repossession questioned by deeds not being signed

[bhall]

At last we have progress - finally the "it" is the deed - that has taken me nearly a year of hard work

 

I honestly didn't think this day would ever come, lucky I am sitting down, otherwise I would have collapsed in shock

 

There is a case that answers your question about t&c's, I will find it and post it for you (I need to find it first)

 

 

scrub that, s.2 provides you with an answer

 

http://www.legislation.gov.uk/ukpga/1989/34/section/2

 

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

 

"or by reference to some other document"

 

from the accord mortgage deed

 

 

Incorporated does not mean they have to be in the actual document, it can mean that they are referenced to some other document, such as -

 

'The mortgage incorporates the Mortgage Conditions a copy of which the Borrower and any Guarantor has received'

 

s.1 which relates to actual deeds, includes no such stipulation anyway, unlike s.2 which relates to contracts

[applecart]

At last we have progress - finally the "it" is the deed - that has taken me nearly a year of hard work

 

I honestly didn't think this day would ever come, lucky I am sitting down, otherwise I would have collapsed in shock

 

There is a case that answers your question about t&c's, I will find it and post it for you (I need to find it first)

 

I will wait for you to post it up - Thank you.

 

Apple

[bhall]

I will wait for you to post it up - Thank you.

 

Apple

 

You don't have to wait long, as I have just done it

[bhall]

Yes, I accept your point; as we move on.....

 

Safe in that knowledge that the 'it' is the Deed - the question begs - is the 'it' (the Deed) complete without the terms and conditions attached to it and signed by 'each' party?

 

Apple

 

This is a first I think, a date I will write in my diary - the day Apple actually concedes they are wrong about something -

 

This demonstrates the value of the debates on sites such as CAG.

 

Now imagine, if the solicitor for the lender, made the same points as I have just done, during an actual hearing... it would be too late for the borrower to counter - the borrower would be up the creek without a paddle relying on an argument previously proposed and championed by this thread

 

I think I am still in a state of shock, for the first time in nearly a year, I feel like we have actually made some progress

[applecart]

scrub that, s.2 provides you with an answer

 

http://www.legislation.gov.uk/ukpga/1989/34/section/2

 

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

 

or by reference to some other document

 

from the accord mortgage deed

 

 

Again, I wholly take this point made.

 

Here is the statute you refer to:

 

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

 

Therefore, if I understand your point made correctly; you are essentially saying that so long as the deed (the 'IT') states words to the effect of 'the 2008 mortgage conditions apply to this mortgage' - this is enough to say that the 'terms and conditions' are referred to and the deed therefore conforms with s.2 when it speaks of 'or dispositions of interests' - yes?

 

Here's the point I am making..

 

In accepting that the Deed is the 'it' and in accepting that the 'it' (the Deed) complies with s.2 in regard to being a 'disposition of interests' and of course the 'it' that references the terms and conditions......should it not also then comply with LPMPA s.2 (3) or indeed - as we know it does not have signatures of 'each' party..... should there not be separate terms and conditions attached that will bare the signature of 'each' party to 'it' to comply with LPMPA s.2 (3)?

 

(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.

 

 

Apple

[bhall]

Again, I wholly take this point made.

 

Here is the statute you refer to:

 

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

 

Therefore, if I understand your point made correctly; you are essentially saying that so long as the deed (the 'IT') states words to the effect of 'the 2008 mortgage conditions apply to this mortgage' - this is enough to say that the 'terms and conditions' are referred to and the deed therefore conforms with s.2 when it speaks of 'or dispositions of interests' - yes?

 

Here's the point I am making..

 

In accepting that the Deed is the 'it' and in accepting that the 'it' (the Deed) complies with s.2 in regard to being a 'disposition of interests' and of course the 'it' that references the terms and conditions......should it not also then comply with LPMPA s.2 (3) or indeed - as we know it does not have signatures of 'each' party..... should there not be separate terms and conditions attached that will bare the signature of 'each' party to 'it' to comply with LPMPA s.2 (3)?

 

(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.

 

 

Apple

 

A deed does not have to comply with s.2

 

From Eagle Star

 

15.In my judgment this argument does not stand any real prospect of success. This is not a case of a contract: it is a case of a deed. If we were simply dealing with a contract to create a mortgage then Mr Green would be right. But in this case he and Miss Challis have actually executed a deed. It is clear from the provisions of the 1989 Act itself that a distinction is drawn between the formal requirements affecting the execution of deeds and the formal requirements governing contracts. Section 1 makes alterations to the law about the execution of deeds. For example, they are no longer required to be written on any particular kind of substance and a seal is not required for the valid execution of an instrument as a deed by an individual. There are a number of detailed provisions in section 1 relating to deeds. 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, one other kind of disposition being a transfer by way of security over what is commonly called a mortgage or charge.

 

From Helden

 

28. As is spelt out in its opening words, section 2 is concerned with "a contract for the sale or other disposition of an interest in land". Its purpose is also clear from the fact that it replaced section 40 of the Law of Property Act 1925, and from the contents (and indeed the title) of the interesting and full Law Commission report which initiated it – Transfer of Land: Formalities for Contracts For Sale etc. of Land (Law Com. No. 364). The section was directed to tightening up the formalities required for contracts for the creation or transfer of interests or estates in land, and it was not concerned with documents which actually create or transfer legal estates or interests in land. This conclusion is consistent with the view expressed by the Chancellor of the High Court in McLaughlin v Duffill [2008] EWCA Civ 1627, [2010] Ch 1, paras 20-21, approving the reasoning of HH Judge Hicks QC in Target Holdings Ltd v Priestly 79 P & CR 305, para 51.

 

You mention s.2 during a hearing and your sunk before you even start

 

because of cases such as Eagle Star, Helden and even Lamb and Fergus, I would take s.2 out of the picture completely, when discussing or arguing about deeds - for a legal representative it is by far a too easy a door to close, during a hearing, leaving the borrower in difficulty

 

The Judge will just say s.2 does not apply to deeds, leaving the borrower standing there looking ????????? and any arguments based upon deeds and s.2 in the bin

[Peterbard]

Again, I wholly take this point made.

 

Here is the statute you refer to:

 

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

 

Therefore, if I understand your point made correctly; you are essentially saying that so long as the deed (the 'IT') states words to the effect of 'the 2008 mortgage conditions apply to this mortgage' - this is enough to say that the 'terms and conditions' are referred to and the deed therefore conforms with s.2 when it speaks of 'or dispositions of interests' - yes?

 

Here's the point I am making..

 

In accepting that the Deed is the 'it' and in accepting that the 'it' (the Deed) complies with s.2 in regard to being a 'disposition of interests'......should it not also then comply with LPMPA s.2 (3) or indeed - as we know it does not have signatures of 'each' party..... should there not be separate terms and conditions attached that will bare the signature of 'each' party to 'it' to comply with LPMPA s.2 (3)?

 

(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.

 

 

Apple

 

I have to remind you at this point of the title of this thread, the issue i thought was that the lender had to sign the deed.

[Peterbard]

A deed does not have to comply with s.2

 

Exactly

[applecart]

I have to remind you at this point of the title of this thread, the issue i thought was that the lender had to sign the deed.

 

Ben has assisted me to establish that the Deed is the 'IT'

 

He has also assisted me to establish and understand that it is the Deed (the 'IT') that incorporates reference to the terms and conditions relevant to s.2.

 

The Deed thread is to do with the question "repossession questioned by deeds not being signed".

 

What Ben has yet to assist me understand is - why does the Deed (the 'IT') not comply with LPMPA s.2 (3)

 

Having come this far, I think it is only fair that he establish for me - why the Deed - the 'IT' has not been signed by the Lender??

 

Apple

[bhall]

Ben has assisted me to establish that the Deed is the 'IT'

 

He has also assisted me to establish and understand that it is the Deed (the 'IT') that incorporates reference to the terms and conditions relevant to s.2.

 

The Deed thread is to do with the question "repossession questioned by deeds not being signed".

 

What Ben has yet to assist me understand is - why does the Deed (the 'IT') not comply with LPMPA s.2 (3)

 

Having come this far, I think it is only fair that he establish for me - why the Deed - the 'IT' has not been signed by the Lender??

 

Apple

 

Ben has if you read my previous post and pretty much all of my other posts in this thread

 

anything related to s.2 and deeds, you have to put down and step back away from slowly

 

s.2 does not apply to deeds - it is as simple as that

 

Judges will hear s.2 and deeds and immediately the shutters will come down - I think Jotho (sorry if I spelt it wrong) will confirm this is exactly what happened to them (in addition to Lamb and Fergus)

[applecart]

A deed does not have to comply with s.2

 

From Eagle Star

 

15.In my judgment this argument does not stand any real prospect of success. This is not a case of a contract: it is a case of a deed. If we were simply dealing with a contract to create a mortgage then Mr Green would be right. But in this case he and Miss Challis have actually executed a deed. It is clear from the provisions of the 1989 Act itself that a distinction is drawn between the formal requirements affecting the execution of deeds and the formal requirements governing contracts. Section 1 makes alterations to the law about the execution of deeds. For example, they are no longer required to be written on any particular kind of substance and a seal is not required for the valid execution of an instrument as a deed by an individual. There are a number of detailed provisions in section 1 relating to deeds. 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, one other kind of disposition being a transfer by way of security over what is commonly called a mortgage or charge.

 

From Helden

 

28. As is spelt out in its opening words, section 2 is concerned with "a contract for the sale or other disposition of an interest in land". Its purpose is also clear from the fact that it replaced section 40 of the Law of Property Act 1925, and from the contents (and indeed the title) of the interesting and full Law Commission report which initiated it – Transfer of Land: Formalities for Contracts For Sale etc. of Land (Law Com. No. 364). The section was directed to tightening up the formalities required for contracts for the creation or transfer of interests or estates in land, and it was not concerned with documents which actually create or transfer legal estates or interests in land. This conclusion is consistent with the view expressed by the Chancellor of the High Court in McLaughlin v Duffill [2008] EWCA Civ 1627, [2010] Ch 1, paras 20-21, approving the reasoning of HH Judge Hicks QC in Target Holdings Ltd v Priestly 79 P & CR 305, para 51.

 

You mention s.2 during a hearing and your sunk before you even start

 

because of cases such as Eagle Star, Helden and even Lamb and Fergus, I would take s.2 out of the picture completely, when discussing or arguing about deeds - for a legal representative it is by far a too easy a door to close, during a hearing, leaving the borrower in difficulty

 

The Judge will just say s.2 does not apply to deeds, leaving the borrower standing there looking ????????? and any arguments based upon deeds and s.2 in the bin

 

Are you sure?

 

You have just established the merit of section 2 this very morning.

 

Those that did rely on it looking to appeal should be able to move their arguments forward on that which you have established here on the CaG?

 

Why would you persuade them away from your own finding when your findings can clearly assist them??

 

Apple

[bhall]

Are you sure?

 

You have just established the merit of section 2 this very morning.

 

Those that did rely on it looking to appeal should be able to move their arguments forward on that which you have established here on the CaG?

 

Why would you persuade them away from your own finding when your findings can clearly assist them??

 

Apple

 

I think you need to re-read my post

 

 

scrub that, s.2 provides you with an answer

 

http://www.legislation.gov.uk/ukpga/1989/34/section/2

 

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

 

"or by reference to some other document"

 

from the accord mortgage deed

 

 

Incorporated does not mean they have to be in the actual document, it can mean that they are referenced to some other document, such as -

 

'The mortgage incorporates the Mortgage Conditions a copy of which the Borrower and any Guarantor has received'

 

s.1 which relates to actual deeds, includes no such stipulation anyway, unlike s.2 which relates to contracts

 

I was using s.2 as an example to explain the word 'incorporated'

 

s.1 which applies to deeds includes no such stipulation

[applecart]

Ben has if you read my previous post and pretty much all of my other posts in this thread

 

anything related to s.2 and deeds, you have to put down and step back away from slowly

 

s.2 does not apply to deeds - it is as simple as that

 

Judges will hear s.2 and deeds and immediately the shutters will come down

 

Who has made this post?

 

Do you Ben refer to yourself as 'Ben' when you are posting??

 

Whichever and whatever the case maybe - I know that I am Applecart no alias ; )

 

Your point whoever you are is well taken. But it will be for those who are caught out by section 2 to re-jig the point and take it up on appeal.

 

Apple

[applecart]

I think you need to re-read my post

 

 

 

 

I was using s.2 as an example to explain the word 'incorporated'

 

s.1 which applies to deeds includes no such stipulation

 

What??

 

Apple

[bhall]

What??

 

Apple

 

s.1 applies to deeds only

s.2 applies to contracts only

[bigphil61]

I have to remind you at this point of the title of this thread, the issue i thought was that the lender had to sign the deed.

 

Hi Dodgeball, Did you not read the quote you posted???? BP

[Peterbard]

You seem to think that the contract as subscribed by section 2 is an intriguall part of the deed and thus all aspects and requirements of section 2 apply to section 1, this is not the case. They are two sepperate documents as illustrated in the case law posted by ben.

 

You cannot subscribe the requirments of the documents under section two to the deed this is section one territory, I really do not know how many more ways I can ell you this.

[bhall]

Who has made this post?

 

Do you Ben refer to yourself as 'Ben' when you are posting??

 

Whichever and whatever the case maybe - I know that I am Applecart no alias ; )

 

Your point whoever you are is well taken. But it will be for those who are caught out by section 2 to re-jig the point and take it up on appeal.

 

Apple

 

I was being sarcastic as you said you was waiting for Ben to reply, after I already had -

 

However, lets not allow that to detract from the progress we have made today - You finally admitting you was wrong, is a very important first step in correcting a lot of the things posted in this thread.

 

For me it is a more important first step than Neil Amstrong's first step on the moon and in a similar way your first step is 'one small step for man, one giant leap for mankind"

 

Now the problem is the people that have made applications based on your previous incorrect understanding of GARGUILO - I need to go and refresh my memory about what they were led to believe

[Peterbard]

Hi Dodgeball, Did you not read the quote you posted???? BP

 

Sorry not with you ?

[bigphil61]

Again, I wholly take this point made.

 

Here is the statute you refer to:

 

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

 

Therefore, if I understand your point made correctly; you are essentially saying that so long as the deed (the 'IT') states words to the effect of 'the 2008 mortgage conditions apply to this mortgage' - this is enough to say that the 'terms and conditions' are referred to and the deed therefore conforms with s.2 when it speaks of 'or dispositions of interests' - yes?

 

Here's the point I am making..

 

In accepting that the Deed is the 'it' and in accepting that the 'it' (the Deed) complies with s.2 in regard to being a 'disposition of interests' and of course the 'it' that references the terms and conditions......should it not also then comply with LPMPA s.2 (3) or indeed - as we know it does not have signatures of 'each' party..... should there not be separate terms and conditions attached that will bare the signature of 'each' party to 'it' to comply with LPMPA s.2 (3)?

 

(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.

 

 

Apple

 

Hi Dodgeball, No worries, I was referring to your post at #5207...BP

[applecart]

I was being sarcastic as you said you was waiting for Ben to reply, after I already had -

 

However, lets not allow that to detract from the progress we have made today - You finally admitting you was wrong, is a very important first step in correcting a lot of the things posted in this thread.

 

For me it is a more important first step than Neil Amstrong's first step on the moon and in a similar way your first step is 'one small step for man, one giant leap for mankind"

 

Now the problem is the people that have made applications based on your previous incorrect understanding of GARGUILO

 

LOL ......

 

You went full circle didn't you on that one Ben....well done ; )

 

The Fact is - you established in your own words that the Deed is the 'it'

 

Fact - you established that the 'it' - must incorporate the terms and does in fact need only make reference to the terms that may be held in some other document

 

All of which was based on the understanding that s.2 relates not only to contracts for sale BUT also to 'dispositions of interests'....

 

You cannot say you have made progress when you now look to reneged on the very point YOU established for me and no doubt others too...

 

Is that what you are applauding yourself for?? the fact that you reneged????

 

It's too late - your posts are there for one and all to see now ; )

 

I took you full circle and all you could do is 'reneged'

 

Says it all really.

 

Now...... to avoid what will no doubt become a 'bear garden' response....... Let me leave you with the thought that when you actually 'assisted' and could have stood by what you said, established and made out in favor of Borrowers - Instead you chose to reneged..

 

I bid you a good day ; )

 

Apple

[Peterbard]

Hi Dodgeball, No worries, I was referring to your post at #5207...BP

 

Just be clear section 2 requirements refer to section 2, section 1 refer to section one.

 

When section 2 says that its terms may be incorporated or in an other document referred to by it, it is talking about(you guessed it) section 2, information regarding the information required by, yes section 2 (ie not section 1.

[bhall]

LOL ......

 

You went full circle didn't you on that one Ben....well done ; )

 

The Fact is - you established in your own words that the Deed is the 'it'

 

Fact - you established that the 'it' - must incorporate the terms and does in fact need only make reference to the terms that may be held in some other document

 

All of which was based on the understanding that s.2 relates not only to contracts for sale BUT also to 'dispositions of interests'....

 

You cannot say you have made progress when you now look to reneged on the very point YOU established for me and no doubt others too...

 

Is that what you are applauding yourself for?? the fact that you reneged????

 

It's too late - your posts are there for one and all to see now ; )

 

I took you full circle and all you could do is 'reneged'

 

Says it all really.

 

Now...... to avoid what will no doubt become a 'bear garden' response....... Let me leave you with the thought that when you actually 'assisted' and could have stood by what you said, established and made out in favor of Borrowers - Instead you chose to reneged..

 

I bid you a good day ; )

 

Apple

 

Apple grow up, I know it is a bitter pill for you to swallow today that for the first time, since the begining of time, you have admitted you have been wrong about something but please just read and not interpret my posts. ( I think I have asked you at least five times previously)

 

I have very clearly said s.1 applies to deeds and s.2 applies to contracts - now you have been proved to your own satisfaction that you are wrong, you want to cloud the distinction between s.1 and s.2 - nice try but it does not work

 

Unlike it has now been proven with Garguilo, can you please bother to actually read the cases and legislation referred too

 

I am disappointed with you, I thought we had finally been able to make progress.

 

Please stop with your need to interpret, as shown today with Garguilo, your interpretations are wrong and a waste of everyones time

[bhall]

apple said "Let me leave you with the thought"

 

As for leaving people with thoughts...

 

Here is one for you, you have been and are wrong about virtually everything you have posted about property law in this thread. You have held onto your misunderstanding of Garguilo for almost a year and have encouraged people to make applications based partly on your misunderstanding of Garguilo.. How many times have you posted about gargulio and relied upon what you thought it said, rather than what it actually said, only now to accept that you were wrong all along ?

 

Clearly, you never actually took the time to read Garguilo and understand what it actually says, you just went running head first off with your interpretations ( as usual) - leaving the people that have made the applications to pick up the pieces - Great work there Apple, you have done yourself proud - well done

 

With all this talk of beer gardens, I think I will have a beer later to celebrate this day 11 February 2014 - the day Apple finally accepted and admitted he/she was wrong about something

[bigphil61]

Hi Dodgeball, Oh I'm clear and I understand your point of view, although, I don't agree with it. Just to make it clear for you, IsItMe's friend, IsItMe, Apple and all the other posters that have contributed to this thread, that have had the borrowers best interests at heart, have not lost sight of what is being discussed here...BP