Repossession questioned by deeds not being signed

[bigphil61]

From a numbers perspective, I would agree

 

However, ask yourself this question - if there was any real merit in the application, why would one be struck out on the basis that it is - "frivolous or vexatious or otherwise an abuse of process"

 

If there is any real merit and the chamber was really going to decide that the deed is void, how can the Property Chamber say it was frivolous and vexatious

 

 

Hi Ben,

 

I have asked the question several times and still come to the same conclusion, nine out of ten applications have not been struck out, there must be merit in those applications, otherwise they would have all been struck out...BP

[bhall]

Hi Ben,

 

I have asked the question several times and still come to the same conclusion, nine out of ten applications have not been struck out, there must be merit in those applications that have got through...BP

 

We will find out either way when the decision is issued - how about waiting until then to see ?

[bigphil61]

We will find out when the decision is issued - how about waiting until then to see ?

 

 

Hi Ben,

 

I'm more than happy to wait for the decision too...BP

[bhall]

Hi Ben,

 

I'm more than happy to wait for the decision too...BP

 

Good there we go, we can all now wait until the decision has been issued and either posted in this thread as an attachment or a link has been posted to it.

 

Enjoy the rest of your Sunday BP (and everyone else)

 

 

 

 

 

(the above is not an order or a demand - just a reasonable and sensible course of action)

[IS IT ME?]

May be that is the game plan,

And for your information which you have twisted again the case as I very very clearly stated was the COUNTY COURT can you see now why I do not give you any details as you would only mis inform people again and again.

So do every one a favour and leave this thread alone and do your own as it needs it thanks.

[applecart]

Hello BP

 

What is it you want Dodge to say ?

 

It went badly for the lender ?

 

I have no qualms in saying that it went badly for the lender. In fact, I would say it could not have gone any worse for the lender

 

However, the reasons and circumstances that it went badly in that case don't apply to the application made by the OP on behalf of his friend to the chamber - The chamber has already told Is It Me? that this case is not relevant to the question of if a lender has to sign a mortgage deed

 

The reason it went badly was because of the signatory page, this as we know is incorporated within a mortgage deed, so not applicable to the application - the "it" includes the signature as required by s.1

 

 

The above is from the Accord Mortgage Deed

 

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

 

In terms of the mortgage deed, the lenders do not ignore the proper execution of deeds at their peril - instead they comply with the statutory requirements as per my earlier post

 

The circumstances as detailed within that case are completely different to how a mortgage deed is used and signed by the borrower, prior to registration

 

 

Ben

 

Even you should have spotted that in 'garguillo' the form of charge would have been in Form CHI....requiring the signature of the 'lender' and the 'borrowers'

 

Between Lenders and Borrowers - such as concerns the topic of this thread - the Lender uses an 'Approved Form of Charge' - and as we are finding out - it only meets the 'approved form' for HMLR charging purposes - HMLR do not look to confirm either way whether the 'approved form of charge' represents a valid 'agreement' between the Borrower and the Lender.

 

The Consequence is that the Lender has left the Deed unsigned to his peril.

 

BP is correct - 'garguillo' sets the 'principle' - it is a case that was decided by the Adjudicator - who, with respect is going to be a lot more sure of land cases - because that is all they are concerned with - land disputes and the like....

 

We are on form...we have relied on the correct authority - derived from the correct section of the judiciary- who speaks of the correct principles in regard to Deeds, their Execution, their formality, their legal effect.

 

If you read 'garguillo' - you will find that Deputy District Judge speaks of the 'signature being fundamental - not secondary...'

 

So Lenders DO ignore the formality of a deed and they do so at their Peril I'm afraid ; )

 

Apple

[applecart]

Hi Ben,

 

I have asked the question several times and still come to the same conclusion, nine out of ten applications have not been struck out, there must be merit in those applications, otherwise they would have all been struck out...BP

 

The case that Ben refers to was not a case that had anything to do with the merit of the statute relied upon in the application.

 

You are correct BP - whilst I have every empathy for the party whose case is said to have been struck out - it clearly has had no baring on the application.

 

Apple

[IS IT ME?]

Hi good evening Apple

It is my understanding after speaking with the chamber on Friday that the case that was " going to be stuck out " has in fact been appealed against and it is being looked into, as I have also been told that there could be some thing WORNG with why it had been set back???, so again let's not jump the gun here as Ben has lol

 

As Ben has said there is a lot more going on then he knows which by the look of his posts up sets him a little lol

[fletch70]

Apple

 

If one has been struck out and you say it had nothing to do with the statute relied upon in this case I assume you know the claim and the defence, for us thickos could you please enlighten

 

BigPhil

 

As I think it was Dodge said, certainly in CCA claims dealings are often held until a test case has been decided. Carey is a believe a case in point and had that gone otherwise many many more claims would have come before the court costing claimants and defendants huge amounts of money

[fletch70]

Hi good evening Apple

It is my understanding after speaking with the chamber on Friday that the case that was " going to be stuck out " has in fact been appealed against and it is being looked into, as I have also been told that there could be some thing WORNG with why it had been set back???, so again let's not jump the gun here as Ben has lol

 

As Ben has said there is a lot more going on then he knows which by the look of his posts up sets him a little lol

 

Oh I thought Ben was there and knew details that he shouldn't be privy to? Obviously not

[applecart]

before the RRO 2005 the legal position was confirmed by Eagle Star Insurance Company Ltd v Green & Anor [2001] EWCA Civ 1389 (8 August 2001) and as shown above, the RRO 2005 didn't make the changes suggested by this thread

 

 

12. So, says Mr Green, section 2 requires the signature of all the parties to a mortgage, being a contract for the disposition of an interesticon in land. He says that if you look at this mortgage at the end where the signatures appear it will be seen (on page 50 of Volume 1 of the bundles of documents) that there are the signatures of himself and Miss Challis, but there is no signature on behalf of Eagle Star. So, he submits, the mortgage of 8th November 1989 does not comply with the requirements of section 2 of the 1989 Act, which by then had come into force. He made it clear that it is not disputed that he owes money to Eagle Star, but there is a dispute about the precise amount. He emphasised that he has been regularly paying monthly payments to Eagle Star, though he accepts there are arrears. He says that the effect of applying section 2 to the mortgage of 8th November 1988 is that it is unenforceable. That means that the Eagle Star company are not entitled to obtain the order for possession which it obtained from His Honour Judge Jones. He emphasised a number of times during his submissions that without the signature of someone on behalf of Eagle Star the mortgage is not a full and complete legal document and so they are not entitled to enforce the charging provisions in it against him.

 

13.Mr Green referred to some passages in the report of the Law Commission which led to the bill enacted in the 1989 Act. He referred to passages in the Law Commission Paper No.164, in particular 4.5, 4.6 and 4.8. He also referred to a number of authorities. I think the most important of these (because it was concerned with a mortgage, while the other cases he referred to concerned contracts for the sale of land) was United Bank of Kuwait Plc v Sahib [1997] Ch at 107. I have been supplied with a copy in [1996] 3 All ER 251. That is an important case. It decided that the requirements contained in section 2 of the 1989 Act to the effect that a contract for the sale or other disposition in land must be in writing in a single document incorporating all the terms and signed by the parties, abolished the rule that a mere deposit of title deeds relating to property by way of security created a mortgage or charge. Following the 1989 Act the rule had changed. There had to be a written document, not merely a deposit of title deeds by way of security in order to create a mortgage or charge.

 

14.Mr Green relied on that for the proposition that the same should apply to this case because there was, in this case, within the mortgage deed a contract by him in the form of the covenant to repay. There were also contractual provisions or covenants by Eagle Star. So, he said, if the mortgage in United Bank of Kuwait v Sahib was governed by section 2 of the 1989 Act, so should this mortgage with similar results for its enforceability.

 

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.

 

Ben

 

You repeatedly post the case of Eaglestar; I totally understand why you do so...You do so to ensure that Borrowers remain conscious of it.....

 

However, what you fail to take fro the case is this:

 

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 we re 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 interesticon in land, one other kind of disposition being a transfer by way of security over what is commonly called a mortgage or charge.

 

The application before the Chamber is such a case as is highlighted above......

 

"dealing with a contract to create a mortgage"

 

and what did the Judge say Ben if that is the case...he said:

 

"then Mr Green would be right."

 

The application makes it clear that whilst the Lender may have bargained for a 'mortgage' - the FACT is - NO BORROWER has STATUTORY POWER to grant a "mortgage".

 

(BTW a "mortgage" is NOT a "loan"; so gawd knows where that 'idea' came from)

 

The application points out that s.40 of the LPA 1925 was abolished - the implication being that in relation to the deed - it is a speciality contract - s.2 supercedes s.40 - so since 1989 - a deed is the 'contract' that it relates to ...... and must be signed by both parties.

 

You yourself provided for us the finding that the 'deed' is the document that meets s.2 (3)......it includes reference to terms and conditions in some other document...remember??

 

The only thing you were not willing to accept was that the Deed MUST be signed by both parties...remember??

 

so, with respect.... the application is on point.....if the Chamber miss the point made above...then, an appeal is more than necessary I would have thought - don't you?

 

Apple

[applecart]

Hi good evening Apple

It is my understanding after speaking with the chamber on Friday that the case that was " going to be stuck out " has in fact been appealed against and it is being looked into, as I have also been told that there could be some thing WORNG with why it had been set back???, so again let's not jump the gun here as Ben has lol

 

As Ben has said there is a lot more going on then he knows which by the look of his posts up sets him a little lol

 

Yes, there is much going on behind the scenes....applications to the Chamber are not 5 minute possession hearings.....The Chamber appears to be fair to BOTH parties.

 

There are 'principles'...there is 'formality'.....No case appears to be struck out without the party concerned being given the opportunity to argue the decision.

 

Apple

[applecart]

It is also of significance to point out that under s.40 LPA 1925 it WAS permitted to rely on a document that was signed by the 'grantor' alone - which is more than in keeping with dispositions of unregistered land - because the form of deed was immaterial.

 

This is what s.40 said:

 

40Contracts for sale, &c, of land to be in writing(note the 'heading')

 

(1)No action may be brought upon any contract for the sale or other disposition of land or any interest in land, unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged or by some other person thereunto by him lawfully authorised.

(2)This section applies to contracts whether made before or after the commencement of this Act and does not affect the law relating to part performance, or sales by the court.

 

This is s.53 as it was enacted:

 

53Instruments required to be in writing

 

(1)Subject to the provisions hereinafter contained with respect to the creation of interests in land by parol—

(a)no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent thereunto lawfully authorised in writing, or by will, or by operation of law;

 

It correlates with the repealed section 40 NOT with the NEW Section 2:

 

2 Contracts for sale etc. of land to be made by signed writing.(oooh look - the heading is ESSENTIALLY the same)

 

(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.

 

There is NO Ambiguity.....s.2 is the new s.40.....Difference being.....now under s.2 the Deed (speciality contract) MUST be signed by BOTH the Lender and the Borrower.

 

Section LPA s.53 is NOT LPA section 52..... there is NO DEED! & NO SPECIALITY CONTRACT meeting LPMPA 1989 s.1 (2) as amended - the Lender has left the space for his execution 'blank'

 

Apple

[applecart]

Apple

 

If one has been struck out and you say it had nothing to do with the statute relied upon in this case I assume you know the claim and the defence, for us thickos could you please enlighten

 

BigPhil

 

As I think it was Dodge said, certainly in CCA claims dealings are often held until a test case has been decided. Carey is a believe a case in point and had that gone otherwise many many more claims would have come before the court costing claimants and defendants huge amounts of money

 

Is this a serious question Fletch?

 

Apple

[fletch70]

No i thought i would make it up.

I can not look back through all the pages but you are saying that the one that has been struck out is different all i am asking is in what way.

Am i to understand also that there is now an appeal about the strike out?

[applecart]

No i thought i would make it up.

I can not look back through all the pages but you are saying that the one that has been struck out is different all i am asking is in what way.

Am i to understand also that there is now an appeal about the strike out?

 

Tell me Fletch...are you contemplating making an application to the Chamber?

 

Apple

[fletch70]

Does it matter?

The info really needs to be as clear as possible so that anyone who comes here looking for help can get a clear picture.

 

On a separate note yes fairness has to be seen to be done so when the original strike out request was made the other party would have been given an opportunity to defend said application.So i ask again. Is that decision now being appealed?

[applecart]

Does it matter?

The info really needs to be as clear as possible so that anyone who comes here looking for help can get a clear picture.

 

On a separate note yes fairness has to be seen to be done so when the original strike out request was made the other party would have been given an opportunity to defend said application.So i ask again. Is that decision now being appealed?

 

I see your point Fletch.

 

The thing is - I find that those who have a vested interest (either Borrower or Lender) tend to ask constructive questions - that's why I asked.

 

In fact BP appears to very much up to speed - the questions posed by BP are constructive - BP has even posted understanding here also......that's nothing short of what I would expect someone who has a vested interest to do....

 

Those with a vested interest take time out to read the thread - they do not ask questions if they do not understand what they are talking about - they appear to hold off doing so until they can construct a relevant question I notice...

 

Just an observation - that was all...no offence to you.

 

In answer to you 'separate note' - It was Is It Me who was advised that the application would be struck out for 'lack of merit'.....we overcame the issue.....we moved on..... it is only Ben who appears to be of the opinion that we are still dealing with that as an issue.

 

'moved on' - the Lender is the one who's fate is in jeopardy - we overcame the issue - the application was heard - Is It Me stated quite clearly - the Lender was DUMBSTRUCK on the LRA s.23 point raised.......he did not overcome it.....he could not overcome the fact that the Borrower is not obligated to perform when it is only the Borrower that has signed the deed.......

 

These are excellent results and have been duly reported back here by Is It Me.

 

I have moved the thread forward on the premise that the Lender is unlikely to overcome the FACT and the LAW...The Lender has 28 days to consider s.23 along with the other grounds that had merit put to the Chamber - we see Ben doing just that; here on this thread. The application has not been struck out.

 

Had the Chamber intended to strike it out - when the Lender objected - the Chamber would have considered the 'objection' against the application and if it was satisfied that the 'objection' had 'merit' it would have struck out the application months ago....the 'objection' clearly had no merit..... the application went to a hearing.

 

Both parties were given fair opportunity to submit further argument........to make their points 'clear'.....no doubt the Lender did so..... no doubt Is It Me did so....

 

Those arguments will be considered.....

 

The decision can and will only go the Borrowers way........Like I say I moved the thread forward on this premise; to say the Lender will possibly get a further 28 days to appeal the decision

 

If the Lender appeals.....he needs to consider (with Ben's and those of others who share his alternative views) the 'grounds' he can rely to do so.....

 

That's where we are up to..

 

Apple

[Crapstone]

It is also of significance to point out that under s.40 LPA 1925 it WAS permitted to rely on a document that was signed by the 'grantor' alone - which is more than in keeping with dispositions of unregistered land - because the form of deed was immaterial.

 

This is what s.40 said:

 

40Contracts for sale, &c, of land to be in writing(note the 'heading')

 

(1)No action may be brought upon any contract for the sale or other disposition of land or any interest in land, unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged or by some other person thereunto by him lawfully authorised.

(2)This section applies to contracts whether made before or after the commencement of this Act and does not affect the law relating to part performance, or sales by the court.

 

This is s.53 as it was enacted:

 

53Instruments required to be in writing

 

(1)Subject to the provisions hereinafter contained with respect to the creation of interests in land by parol—

(a)no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent thereunto lawfully authorised in writing, or by will, or by operation of law;

 

It correlates with the repealed section 40 NOT with the NEW Section 2:

 

2 Contracts for sale etc. of land to be made by signed writing.(oooh look - the heading is ESSENTIALLY the same)

 

(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.

 

There is NO Ambiguity.....s.2 is the new s.40.....Difference being.....now under s.2 the Deed (speciality contract) MUST be signed by BOTH the Lender and the Borrower.

 

Section LPA s.53 is NOT LPA section 52..... there is NO DEED! & NO SPECIALITY CONTRACT meeting LPMPA 1989 s.1 (2) as amended - the Lender has left the space for his execution 'blank'

 

Apple

 

What 'space' is that Apple? Can you define what you mean a little more please?

 

Are you saying that the lender has not signed ANYTHING in the whole mortgage process?

[applecart]

What 'space' is that Apple? Can you define what you mean a little more please?

 

Are you saying that the lender has not signed ANYTHING in the whole mortgage process?

 

Remember - we are talking about Is It Me's friend's application.

 

Ben provided confirmation that the 'deed' is the only document that we are to take note of - it is the one that incorporates the terms as referred to in another document under s.2 (3) LPMPA.

 

The 'space' for the Lenders signature in Is It Me's friends case is 'blank' (see the copy deed that Ben posted for 'Accord' - the space is shown there - the lender should have signed that 'space')

 

If there is another document because Is It Me's friend used the Lenders money to purchase a house - that document will be the sale contract (simple contract) that need only be signed by Is It Me's friend and the person he bought the house from.

 

The Deed is the one to which the Lender looks to secure an interest for the loan against Is It Me's friend.

 

If the Lender has not executed the Deed.....then he did so at his peril (see 'garguillo')

 

Apple

[Crapstone]

I was also wondering, as you do, what possible outcomes there could be if you were to succeed. The scenario that's been painted is that the charge will be void so no repossession. Maybe even a complete discharge of the mortgage and refund has been suggested I believe. The lender would be able to claim against the solicitor, conveyancer or their underwriters.

 

But what if you were to reverse the process as fairly as possible back to situation you would have been in before? To reverse it you would need the mortgage payments to be refunded and, because the house was purchased by money that didn't belong to borrower, the property would have to be sold to pay back both the sum of money given and any equity had by the borrower. The borrower has had beneficial interest given to them as without the mortgage they would not have the property. And if it's widespread that a signature hasn't been used then they can't argue that they could have used a different lender and not had the same situation occur.

[Crapstone]

Also is not the company a separate legal entity that would have it's name plastered all over the documents along with the company registration number as indeed, (no pun intended) it does?

[applecart]

I was also wondering, as you do, what possible outcomes there could be if you were to succeed. The scenario that's been painted is that the charge will be void so no repossession. Maybe even a complete discharge of the mortgage and refund has been suggested I believe. The lender would be able to claim against the solicitor, conveyancer or their underwriters.

 

But what if you were to reverse the process as fairly as possible back to situation you would have been in before? To reverse it you would need the mortgage payments to be refunded and, because the house was purchased by money that didn't belong to borrower, the property would have to be sold to pay back both the sum of money given and any equity had by the borrower. The borrower has had beneficial interest given to them as without the mortgage they would not have the property. And if it's widespread that a signature hasn't been used then they can't argue that they could have used a different lender and not had the same situation occur.

 

I am assisting Is It Me assist his friend to set aside the deed - as I understand it - if the Chamber is satisfied that the statutory grounds relied upon are enough to set aside the deed - then the Lenders charge will have to be removed - this should act to protect the house from repossession. That will mean the objective has been achieved.

 

It is not my place to speculate as to whether such a decision taken (if taken) by the Chamber is 'fair' or not. It is for the Lender to consider it's own conduct and to speculate for itself whether the Chamber would be fair.

 

In the event the Lender looks to take further action of any kind to charge the property with a view to forcing the sale of the property - then I would consider that this presents an alternative means upon which it looks to circumvent the LAW.

 

It is a general legal principal that if you intend to look to a property to secure lending - that you do so within the applicable LAW. (the LAW says - s.52 (1) - if not - the deed is void) If the Chamber decide that the Lenders charge should be removed...then the Lender will of course be concerned about the money. That is of course understandable.

 

However, the money is another matter - it would be (imo) an un-secured debt...However, if the the Lender wants to pursue the money as a separate issue - it must provide in evidence a contract...not a CCA agreement (not in Is It Me's friend case anyway) - but one that meets s.2(3) - a valid 'speciality contract'........

 

I do not see that he can sue the solicitor or any conveyancer because s. 1 (5) LPMPA (as amended) protects them by making it clear that NO solicitor/conveyancer (notary) did nothing more than 'deliver' the instrument....it did not 'deliver' anything that included or involved the creation of an interest at all.

 

If it can show a valid speciality contract ...(imo) then it can in all probability look to derive an order from the court for the amount of money stated in the speciality contract.

 

Can I just say, let's not forget - it is the Borrower who bought into the 'equity' of the property not the lender - the Borrower will have paid a 'deposit' and all the fees.....the Borrower is entitled to keep his equity....it does not belong to any Lender.....not even under the old enactments.

 

Further, let's not forget - it is not up to the chamber to question how it was that Is It Me's friend became the absolute proprietor of the property. Once his name is shown as Absolute Proprietor - it is conclusive - s.58 (1)...the question as to arguing 'other lenders' would be a waste of any lenders time and effort - all this would do is delay the inevitable....we saw it happen to Log Book Loans (nine regions)

 

Specific performance relates to the seller and purchaser only NOT to the Lender and Borrower under a speciality contract.

 

Part performance and estoppel cannot be relied upon by the Lender under the speciality contract (s.40 repealed) nor under the Deed - he did not execute it.

 

I merely speculate of course.....

 

Can the Lender sue HMLR or look to HMLR for an indemnity?? - I doubt it - the Lender bargained for a 'mortgage' of a registered estate - it got it - the Borrower had no statutory power to grant it - the Lender is not the Absolute proprietor - Indemnity is for the Owner of the Registered Estate - that's the Borrower as I understand it.

 

But..... like I say I merely speculate....nothing more ; )

 

 

Apple

[applecart]

Also is not the company a separate legal entity that would have it's name plastered all over the documents along with the company registration number as indeed, (no pun intended) it does?

 

I don't understand this question - can you re-phrase it please>

 

Apple

[Crapstone]

With such a dynamic environment as banking and lending it would be futile to insist on a single person putting so much as a mark on the deed on behalf of the company. It would be meaningless if the company has its own identity. What use would it be? If 'Fred Smith' were to sign it and left the company, sold up or died does that mean the deed is no longer valid too? Then you'd be questioning what authority they had to sign in relation to it being a company!