Repossession questioned by deeds not being signed

[Crapstone]

I am still DUMBSTRUCK that nothing has been posted by either Apple or Is It Me? about the decision issued by the property chamber - not even so much, if the application was successful or not.

 

I guess we are left to wonder if the continued period of silence on both of their parts is an indication of the decision of the property chamber.

 

Since you revealed that a decision had been issued, we have not heard anything. Is It Me? did log in but it appears that he did not post anything in this thread. Disappointing given how actively people have been encouraged to make applications, to now just go silent on the matter.

 

I am still waiting on a several responses to come back, including a couple from the Property Chamber and the Ministry of Justice. Hopefully one of them might shed some light on the outcome.

 

I agree. Let's hope you have some luck on getting a response as I've made some enquiries but not heard anything back yet. It would be nice if the OP and Apple came back, even if it didn't work at least they can say they tried. Perhaps then another way forward can be found as there is no shortage of knowledge and people that will help on here.

 

I didn't think I missed much lol. You'll be asking Fletch to take you to Krakow next! I'm sure they love you really.

[Crapstone]

Firstly, I've been on here for a while if you scroll back long before you mate and directed one of the people to this thread who has now taken their case to the PC. Secondly no-one has been attacked.

 

My post which (Citizen B can you please put back my orirignal post as I have not broken any forum rules at all) was simply to enquire how an equitable mortgage may be enforced if there is no underlying loan agreement signed. This was in response to the previous posts and is clearly relevant. Holidays to Krakov I fail to see the relevance yet these posts remain. You now have a thread which does not make sense to anyone else now reading.

 

Hi Winged Piglet,

 

In your 70 self-assuring posts since 2009 I would have thought you would have caught on to the basics of law by now especially if you have 'directed' someone to this thread that in turn has gone to the PC.

 

I didn't see your original post but it appears to have been answered in a fashion that you didn't concur with or understand.

 

I'm not being rude but if you don't understand something then look into it and learn. There are lots of books available and courses, plus the online stuff that will get you started. You really do have to back to the basics to understand how law operates and how a mortgage can still stand without a signed agreement.

 

The thread still makes sense and the mods. do a good job of that. Everyone gets posts removed now and again and it's nothing personal just as the banter isn't personal. It's a mooting ground and we are bound to differ in opinion and only human when it comes to chatting.

[steampowered]

Yes, it would be nice to have an update. As there has been no update my working assumption is that the applications were not successful (or possibly have been adjourned).

[applecart]

Yes, it would be nice to have an update. As there has been no update my working assumption is that the applications were not successful (or possibly have been adjourned).

 

 

I agree, it would be nice to know one way or the other....Surely we have speculated enough amongst ourselves now ; )

 

Without the decision we cannot be sure if there is more to be done.....either way; there will be work for both parties to do ; )

 

If Is It Me has won, then the Lender will have to do more, and we would have to do more work to defend that position

 

If the Lender has won, then the Lender will have to do more to defend his position.

 

There is no let up either way - Rome wasn't won in a day, they say ; )

 

Apple

[steampowered]

Thanks for the update apple. It sounds like there hasn't been a decision yet. Any idea on when a decision will be issued, or is it just a matter of waiting for the chamber?

[applecart]

Firstly, I've been on here for a while if you scroll back long before you mate and directed one of the people to this thread who has now taken their case to the PC. Secondly no-one has been attacked.

 

My post which (Citizen B can you please put back my orirignal post as I have not broken any forum rules at all) was simply to enquire how an equitable mortgage may be enforced if there is no underlying loan agreement signed. This was in response to the previous posts and is clearly relevant. Holidays to Krakov I fail to see the relevance yet these posts remain. You now have a thread which does not make sense to anyone else now reading.

 

Hi WP

 

I did view your post;

 

If I understood it correctly, you were querying how would a lender who has not signed the deed as a 'specialty contract' rely for an equitable mortgage.

 

Dodge, advised that so long as the 3 elements of a contract were found - ie offer/consideration/acceptance - then the borrower will be liable to perform regardless asto whether the lender had signed the 'specialty contract' or not.....

 

I think Dodge with over 40 yrs of CCA knowledge fails to accept that CCA relates to 'simple contracts' - they are signed under hand.

 

'Specialty contracts' are signed in 'solemn form'....that's to say 'by the parties to it (s.2 lpmpa) and witnessed.

 

simple contracts carry a 6 yr limitation - specialty cotracts carry a 12 yr limitation because they are normally in deed form.

 

Here's an extract that may help:

 

 

Further to the enactment of s 2of the Law of Property (Miscellaneous Provisions)

 

Act 1989, in circumstances inwhich the parties seek to assert the creation of a contract

 

after 26 September 1989, all ofthe terms of that contract must be contained in one

 

document signed by the partiesbefore it will be valid. This has the effect of preventing

 

the operation of the old doctrineof part performance under s 40 of the LPA 1925,

 

under which the parties wouldhave been able to contend that an act of partial creation

 

of a mortgage or a memorandumevidencing such creation had the effect of forming an

 

equitable mortgage.98 In relation to contracts created after 1989 thereis now no possi-

 

bility of any reliance on partperformance. For the doctrine in Walsh v Lonsdale99 to

 

operate it would also benecessary that the formal requirements set out in s 2 of the

 

1989 Act had been complied with.

 

 

 

The source from which the 'extract' was taken - also talks about the fact the 'equity will not accept s.2 lying down'.......

 

I think in that regard the decision in 'garguillo' (which speaks of a signature being 'fundamental' and a need to avoid 'circumventing the law') would see "equity" actually being used to do exactly that - circumvent the LAW.........

 

Source: Page 18

 

http://webcache.googleusercontent.com/search?q=cache:H-4GqJYBe5kJ:cw.routledge.com/textbooks/9780415497718/downloads/chap23.pdf+&cd=6&hl=en&ct=clnk&gl=uk

 

Apple

[applecart]

Thanks for the update apple. It sounds like there hasn't been a decision yet. Any idea on when a decision will be issued, or is it just a matter of waiting for the chamber?

 

Hi SP

 

Sorry, like you - I can only move on that which the OP or indeed others post here - to get any gist of where things are up to (It is not my application)

 

Apple

[steampowered]

Fair enough applecart. Hopefully someone in the know will update us either way when they are able.

[applecart]

http://www.bailii.org/ew/cases/EWCA/Civ/2001/1389.html

 

17.In my judgment the case in United Bank of Kuwait v Sahib does not help Mr Green, because that was a case where there was no deed, unlike this case. There was in that case a purely informal equitable mortgage by deposit of title deeds. That had no effect because, as a contract, it was required to comply with section 2 and it did not comply. In my judgment His Honour Judge Jones was right to reject the submission that Mr Green made on the effect of section 2. Having referred to the point that it was unarguable, he said:

 

"Section two applies to a contract for the sale of an interest in land or a contract for some other disposition in relation to land. A contract to create a mortgage would obviously have to comply with section two and if it did not then it would not be a valid contract.

 

However, in this case there was no contract for the mortgage, there was simply the execution of the mortgage deed. That mortgage deed is a mortgage deed. It is not a contract to create a mortgage. I need really say no more than that about it."

 

What we do know in these cases - there is a 'deed' - now if the Judge says that United Bank did not assist because there was no deed - pray tell what the position is when there is a Deed......Are we to understand that given that there is a Deed - Section 2 Does in fact apply to it?......After all - it may not have been used as a contract of sale - but it certainly has been used to 'create some other disposition in relation to land'??

 

Food for thought maybe????

 

Apple

[applecart]

Hello LL

 

Sahib is an often quoted case on other sites in support of the argument that a deed must be signed by both parties.

 

However, as confirmed by the subsequent Eaglestar case, Sahib is not relevant.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2001/1389.html

 

"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."

 

 

The reason that sahib is not relevant is confirmed in the Eagle Star case

 

17.In my judgment the case in United Bank of Kuwait v Sahib does not help Mr Green, because that was a case where there was no deed, unlike this case. There was in that case a purely informal equitable mortgage by deposit of title deeds. That had no effect because, as a contract, it was required to comply with section 2 and it did not comply. In my judgment His Honour Judge Jones was right to reject the submission that Mr Green made on the effect of section 2. Having referred to the point that it was unarguable, he said:

 

"Section two applies to a contract for the sale of an interest in land or a contract for some other disposition in relation to land. A contract to create a mortgage would obviously have to comply with section two and if it did not then it would not be a valid contract.

 

However, in this case there was no contract for the mortgage, there was simply the execution of the mortgage deed. That mortgage deed is a mortgage deed. It is not a contract to create a mortgage. I need really say no more than that about it."

 

Sahib is on many sites quoted and referred to, in support of the argument that a mortgage deed must be signed by both parties. However, in Sahib there was no mortgage deed, signed or otherwise.

 

You first say:

 

"Section two applies to a contract for the sale of an interest in land or a contract for some other disposition in relation to land. A contract to create a mortgage would obviously have to comply with section two and if it did not then it would not be a valid contract"

 

Then you say:

 

However, in this case there was no contract for the mortgage, there was simply the execution of the mortgage deed. That mortgage deed is a mortgage deed. It is not a contract to create a mortgage. I need really say no more than that about it."

 

Here's the issue:

 

"A contract to create a mortgage would obviously have to comply with section two"

 

then:

 

"That mortgage deed is a mortgage deed. It is not a contract to create a mortgage"

 

Forgive me, but I cannot see in s.27 where a 'mortgage deed' has to be registered if it does not 'create some other disposition in relation to land'

 

Surely it is only 'registrable dispositions' that must be registered: i.e

 

If the 'mortgage deed' is a disposition as a stand alone instruent - then it is a 'disposition' ... one which the Lender ensures is registered as a 'rgistrable disposition' under s.27.........so, therefore - it is a 'disposition' - that creates 'some other disposition in relation to land' of its own making - right?

 

Why would s.2 not apply to it?

 

After all the Judge says:

 

"Section two applies to a contract for the sale of an interest in land or a contract for some other disposition in relation to land. A contract to create a mortgage would obviously have to comply with section two and if it did not then it would not be a valid contract.

 

Do you think there might be a 'play' on terminology here?

 

i.e 'contract to create a mortgage' with 'the mortgage deed is a mortgage deed - it is not a contract to create a mortgage'

 

After all...... a deed is a form of specialty "contract".

 

Just asking?

 

Leading on from which - the Lambs said it was registered under LRA s.27 as a 'legal charge' - no doubt because that's what they believed to be the case.

 

I think it was more registered as a 'transfer' under s.27 (2)(a).....

 

Apple

[applecart]

I am not sure what decision we are waiting for to be honest.

 

The argument presented, in case anyone has forgotten is not based on the incorrect actions of the lender,nor is is it based on the problems of the debtor(although both or either may be present) the argument is based soley on the presumption that the architects of the legislation, both housed of parliament and the lending industry have all "got it wrong" for the last 12 years and misinterpreted legislation.

 

Well I for one am on the edge of my seat, can't wait to see how it all turns out.

 

No Dodge; the 'argument' is to do with the fact that the Lender has 'mortgaged' a registered estate.....caused the Borrower to dispose of his entire legal estate

 

The contention is that there is nothing in the LRA 2002 that makes this possible. The LRA 02 is done to protect fom this happening...

 

If the lender is the owner of the registered charge with owners powers that belong to the borrower - then that is a mistake...to be altered....if the Lender has signed the deed - then, HMLR can amend the lenders notice to show a 'sub-charge' - if he has not - then that is not the type of mistake that can b 'altered' - the charge will be void......and removed.

 

Definitions:

 

"Charge" means any mortgage, charge or lien for securing money or money's worth;

 

"registered charge" means a charge the title to which is entered in the register;

 

"registered estate" means a legal estate the title to which is entered in the register, other than a registered charge;

 

"registered land" means a registered estate or registered charge;

 

"registered Estate" and "registered Charge" both relate to the 'title' - that's what theBorrower is the owner of - with powers over....party to his "registered land".

 

The "charge" is the lenders - not intended to be tied to the 'title' in right of the Borrowers "registered estate" or the "registered charge"...

 

edit: sub-charge is within the borrowers powers under LRA s.23 (2)(b) not the other type of "charge"

 

Apple

[fletch70]

Firstly, I've been on here for a while if you scroll back long before you mate and directed one of the people to this thread who has now taken their case to the PC. Secondly no-one has been attacked.

 

My post which (Citizen B can you please put back my orirignal post as I have not broken any forum rules at all) was simply to enquire how an equitable mortgage may be enforced if there is no underlying loan agreement signed. This was in response to the previous posts and is clearly relevant. Holidays to Krakov I fail to see the relevance yet these posts remain. You now have a thread which does not make sense to anyone else now reading.

 

WP

I am really sorry to have hit a nerve with you about your length of time on Cag, I merely made a comment and let others make their own decision. I do notice that you are or were somewhat confused by the roles of DN's , credit file markers and signing of agreements. Of course I can only comment on the current state of play as much of the law clarifying that has been more recent. As for my trip there is relevance within the thread as i said I was going away and hoped the result was in before then.

As fr getting precious about posts being removed, you really need to learn to accept that it is part of the terms of use on the site that Mods can and do remove posts , normally for the greater good. I recently had a very witty post removed but I am far from upset about it

 

One final point, yes it is pronounced Krakov by the Poles but they spell it Crakow and we spell it Krakow.

 

I trust the people you directed to this thread and now the PC have a good result

 

We are still waiting sadly for the result, maybe Ben will have some luck after all he does work there (joke)

[Winged Piglet]

Hi WP

 

I did view your post;

 

If I understood it correctly, you were querying how would a lender who has not signed the deed as a 'specialty contract' rely for an equitable mortgage.

 

Dodge, advised that so long as the 3 elements of a contract were found - ie offer/consideration/acceptance - then the borrower will be liable to perform regardless asto whether the lender had signed the 'specialty contract' or not.....

 

I think Dodge with over 40 yrs of CCA knowledge fails to accept that CCA relates to 'simple contracts' - they are signed under hand.

 

'Specialty contracts' are signed in 'solemn form'....that's to say 'by the parties to it (s.2 lpmpa) and witnessed.

 

simple contracts carry a 6 yr limitation - specialty cotracts carry a 12 yr limitation because they are normally in deed form.

 

Here's an extract that may help:

 

 

Further to the enactment of s 2of the Law of Property (Miscellaneous Provisions)

 

Act 1989, in circumstances inwhich the parties seek to assert the creation of a contract

 

after 26 September 1989, all ofthe terms of that contract must be contained in one

 

document signed by the partiesbefore it will be valid. This has the effect of preventing

 

the operation of the old doctrineof part performance under s 40 of the LPA 1925,

 

under which the parties wouldhave been able to contend that an act of partial creation

 

of a mortgage or a memorandumevidencing such creation had the effect of forming an

 

equitable mortgage.98 In relation to contracts created after 1989 thereis now no possi-

 

bility of any reliance on partperformance. For the doctrine in Walsh v Lonsdale99 to

 

operate it would also benecessary that the formal requirements set out in s 2 of the

 

1989 Act had been complied with.

 

 

 

The source from which the 'extract' was taken - also talks about the fact the 'equity will not accept s.2 lying down'.......

 

I think in that regard the decision in 'garguillo' (which speaks of a signature being 'fundamental' and a need to avoid 'circumventing the law') would see "equity" actually being used to do exactly that - circumvent the LAW.........

 

Source: Page 18

 

http://webcache.googleusercontent.com/search?q=cache:H-4GqJYBe5kJ:cw.routledge.com/textbooks/9780415497718/downloads/chap23.pdf+&cd=6&hl=en&ct=clnk&gl=uk

 

Apple

 

Thank you Apple, much appreciated. I don't know why everyone else was getting so ruffled??

[applecart]

Thank you Apple, much appreciated. I don't know why everyone else was getting so ruffled??

 

No idea, I'm sure ; )

 

Here's the bit from the extract to do with 'equity not taking s.2 lying down'...

 

 

"However, equity will not take such legislative interference lying down. While the

 

1989 Act has generated new formal requirements for the creation of a contract to

 

transfer an interest in land, the doctrine of proprietary estoppel continues to provide

 

that where an assurance has been made by one party to another and that other party

 

acts to their detriment in reliance on that assurance, then proprietary estoppel gives

 

the court the discretion to award that right to avoid detriment being suffered by the

 

claimant: as considered in Chapter 13. The case of Yaxley v Gotts101 has seen the

 

courts uphold a doctrine similar in effect to the old doctrine of part performance by

 

holding that, despite the enactment of s 2 of the 1989 Act, the court will award the

 

property rights sought in order to avoid detriment being suffered by the claimant. In

 

consequence, an equitable mortgage could be effected still if one party could demon-

 

strate that the other party to the putative mortgage had induced that party to suffer

 

some detriment in reliance on the creation of that mortgage. To return to a core

 

discussion of the nature of equity, the question must be asked whether this continued

 

determination of equity to enforce its core doctrines, a little like a stubborn weed

 

continuing to grow through the cracks in the pavement, is a valuable protection of

 

the rights of citizens or a dangerous challenge to the supremacy of Parliament in

 

enacting legislation which sets out formal requirements for the transfer of property rights

 

 

Here's that last bit again:

 

"To return to a core discussion of the nature of equity, the question must be asked whether this continueddetermination of equity to enforce its core doctrines, a little like a stubbornweed continuing to grow through the cracks in the pavement, is a valuable protection of the rights of citizens or a dangerous challenge to the supremacy of Parliament in enacting legislation which sets out formal requirements for the transfer of property rights"

If Parliament is intended to be 'supreme' - why would or should 'equity' over-ride Parliament - when it was the Lender who chose not to execute the deed?.....In 'garguillo' we know the Judge upheld the Law over 'equity' - speaking of the signature being fundamental - 'even if it was not commercially convenient.....I see no reason why any Judge would renege on this finding ...

Apple

[Peterbard]

I agree, it would be nice to know one way or the other....Surely we have speculated enough amongst ourselves now ; )

 

Without the decision we cannot be sure if there is more to be done.....either way; there will be work for both parties to do ; )

 

If Is It Me has won, then the Lender will have to do more, and we would have to do more work to defend that position

 

If the Lender has won, then the Lender will have to do more to defend his position.

 

There is no let up either way - Rome wasn't won in a day, they say ; )

 

Apple

 

No I have speculated enough, I want to see how this application was thrown out , then we can perhaps advise people of more realistic methods. I can however fully understand why you would not want to speculate further on the outcome.

[Peterbard]

No idea, I'm sure ; )

 

Here's the bit from the extract to do with 'equity not taking s.2 lying down'...

 

"However, equity will not takesuch legislative interference lying down. While the

1989 Act has generated new formalrequirements for the creation of a contract to

transfer an interest in land, thedoctrine of proprietary estoppel continues to provide

that where an assurance has beenmade by one party to another and that other party

acts to their detriment inreliance on that assurance, then proprietary estoppel gives

the court the discretion to awardthat right to avoid detriment being suffered by the

claimant: as considered inChapter 13. The case of Yaxley v Gotts101 has seen the

courts uphold a doctrine similarin effect to the old doctrine of part performance by

holding that, despite theenactment of s 2 of the 1989 Act, the court will award the

property rights sought in orderto avoid detriment being suffered by the claimant. In

consequence, an equitablemortgage could be effected still if one party could demon-

strate that the other party tothe putative mortgage had induced that party to suffer

some detriment in reliance on thecreation of that mortgage. To return to a core

discussion of the nature of equity,the question must be asked whether this continued

determination of equity toenforce its core doctrines, a little like a stubborn weed

continuing to grow through thecracks in the pavement, is a valuable protection of

the rights of citizens or a dangerouschallenge to the supremacy of Parliament in

enacting legislation which sets out formalrequirements for the transfer of property rights

However, equity will not take such legislative interference lying down. While the

Here's that last bit again:

"To return to a core discussion ofthe nature of equity, the question must be asked whether this continueddetermination of equity to enforce its core doctrines, a little like a stubbornweed continuing to grow through the cracks in the pavement, is a valuableprotection of the rights of citizens or a dangerous challenge to the supremacyof Parliament in enacting legislation which sets out formal requirements forthe transfer of property rights"

If Parliament is intended to be 'supreme' - why would or should 'equity' over-ride Parliament - when it was the Lender who chose not to execute the deed?.....In 'garguillo' we know the Judge upheld the Law over 'equity' - speaking of the signature being fundamental - 'even if it was not commercially convenient.....I see no reason why any Judge would renege on this finding ...

Apple

1989 Act has generated new formal requirements for the creation of a contract to

 

transfer an interest in land, the doctrine of proprietary estoppel continues to provide

 

that where an assurance has been made by one party to another and that other party

 

acts to their detriment in reliance on that assurance, then proprietary estoppel gives

 

the court the discretion to award that right to avoid detriment being suffered by the

 

claimant: as considered in Chapter 13. The case of Yaxley v Gotts101 has seen the

 

courts uphold a doctrine similar in effect to the old doctrine of part performance by

 

holding that, despite the enactment of s 2 of the 1989 Act, the court will award the

 

property rights sought in order to avoid detriment being suffered by the claimant. In

 

consequence, an equitable mortgage could be effected still if one party could demon-

 

strate that the other party to the putative mortgage had induced that party to suffer

 

some detriment in reliance on the creation of that mortgage. To return to a core

 

discussion of the nature of equity, the question must be asked whether this continued

 

determination of equity to enforce its core doctrines, a little like a stubborn weed

 

continuing to grow through the cracks in the pavement, is a valuable protection of

 

the rights of citizens or a dangerous challenge to the supremacy of Parliament in

 

enacting legislation which sets out formal requirements for the transfer of property

However, equity will not take such legislative interference lying down. While the

 

1989 Act has generated new formal requirements for the creation of a contract to

 

transfer an interest in land, the doctrine of proprietary estoppel continues to provide

 

that where an assurance has been made by one party to another and that other party

 

acts to their detriment in reliance on that assurance, then proprietary estoppel gives

 

the court the discretion to award that right to avoid detriment being suffered by the

 

claimant: as considered in Chapter 13. The case of Yaxley v Gotts101 has seen the

 

courts uphold a doctrine similar in effect to the old doctrine of part performance by

 

holding that, despite the enactment of s 2 of the 1989 Act, the court will award the

 

property rights sought in order to avoid detriment being suffered by the claimant. In

 

consequence, an equitable mortgage could be effected still if one party could demon-

 

strate that the other party to the putative mortgage had induced that party to suffer

 

some detriment in reliance on the creation of that mortgage. To return to a core

 

discussion of the nature of equity, the question must be asked whether this continued

 

determination of equity to enforce its core doctrines, a little like a stubborn weed

 

continuing to grow through the cracks in the pavement, is a valuable protection of

 

the rights of citizens or a dangerous challenge to the supremacy of Parliament in

 

enacting legislation which sets out formal requirements for the transfer of property

 

 

Unfortunately all this applies to an equitable mortgage not a mortgage by way of a charge, so it is totally irrelevant to the case where a deed is signed by the borrower.

[Peterbard]

Also why the continual mention of the limitation period ?

 

WP

 

A signed agreement is not needed in order to execute a mortgage, the case law is there should you wish to read it.

Apple is right in that there is a difference between the executing of a mortgage by way of a charge and a cce agreement although I am not sure he knows really what it is.

 

In fact the CCA section 189 defines an executed agreement as and agreement which "has been reduced to writing", although it is possible to form an agreement, the act prohibits the issuance of an enforcement order if the agreement is not properly executed.

There i no such provision for mortgages.

[Winged Piglet]

Unfortunately all this applies to an equitable mortgage not a mortgage by way of a charge, so it is totally irrelevant to the case where a deed is signed by the borrower.

 

Er Dodge, if the PC declare the Deeds in these cases void using the core argument by Apple in this thread, then it is asserted is it not that the PC may declare that those mortgages in this circumstance would then remain but in equity only, so an Equitable Mortgage??

 

Now where's my pen I really must finish that crossword.........

 

WP

[Peterbard]

No Dodge; the 'argument' is to do with the fact that the Lender has 'mortgaged' a registered estate.....caused the Borrower to dispose of his entire legal estate

 

The contention is that there is nothing in the LRA 2002 that makes this possible. The LRA 02 is done to protect fom this happening...

 

If the lender is the owner of the registered charge with owners powers that belong to the borrower - then that is a mistake...to be altered....if the Lender has signed the deed - then, HMLR can amend the lenders notice to show a 'sub-charge' - if he has not - then that is not the type of mistake that can b 'altered' - the charge will be void......and removed.

 

Definitions:

 

"Charge" means any mortgage, charge or lien for securing money or money's worth;

 

"registered charge" means a charge the title to which is entered in the register;

 

"registered estate" means a legal estate the title to which is entered in the register, other than a registered charge;

 

"registered land" means a registered estate or registered charge;

 

"registered Estate" and "registered Charge" both relate to the 'title' - that's what theBorrower is the owner of - with powers over....party to his "registered land".

 

The "charge" is the lenders - not intended to be tied to the 'title' in right of the Borrowers "registered estate" or the "registered charge"...

 

edit: sub-charge is within the borrowers powers under LRA s.23 (2)(b) not the other type of "charge"

 

Apple

 

Funny I thought the argument was the same as the title of this thread, anyway.

 

This new-ish argument is just as flawed, and based on the assumption that, only you underrated the way the legislation really works.

 

It really is very funny.(or it would be if people weren't betting their homes on it)

[steampowered]

I do wonder about the equitable mortgage argument to be honest. Equitable charges/mortgages are recognised by the courts to deal with a situation where one party entered into a contract for the grant of a charge/mortgage, in a situation where the legal formalities for granting charge/mortgage were not properly complied with.

 

A contract for the grant of a charge/mortgage is a contract for the disposition of an interest in land. These are covered by section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 which states that such agreements must be in writing signed by both parties.

 

Accordingly, if a lender cannot prove that it signed the loan agreement, I struggle to see how it could ask the court to enforce an equitable mortgage. There will certainly be an implied contract for repayment of the money but implied contracts do not meet the formalities of section 2.

 

My personal view is still that I think it is very unlikely that any of these applications will be successful. But if they are I think that lenders who do not have loan agreements signed by both parties will only be unsecured creditors; and the only way to get at the house would be through the CCJ enforcement process or through making the borrower bankrupt.

[Peterbard]

Anyway.

 

Lets get back to the decision from the chamber. I am sure we all agree that such a decision would present a major headache for the lenders and be a big deal for the industry. So why have we not heard anything.

 

Lets not forget, the lender cannot enforce[/b,] the deeds is void , the defense was dumbstruck, there is no defense, seems like there is after all

[Winged Piglet]

Also why the continual mention of the limitation period ?

 

WP

 

A signed agreement is not needed in order to execute a mortgage, the case law is there should you wish to read it.

Apple is right in that there is a difference between the executing of a mortgage by way of a charge and a cce agreement although I am not sure he knows really what it is.

 

In fact the CCA section 189 defines an executed agreement as and agreement which "has been reduced to writing", although it is possible to form an agreement, the act prohibits the issuance of an enforcement order if the agreement is not properly executed.

There i no such provision for mortgages.

 

Well as hundreds of thousands of Lenders have shown by ommiting to ask Borrowers to sign the underlying loan agreements, you are correct in this instance, however this doesn't mean they're lawful. Oddly I believe or so I have been told that for a few of the large volume sub-prime lenders it was a decision to purely change their business models which made them decide to not bother asking Borrowers to sign Mortgage Loan Agreements/Offers but relying bizarrely instead on the signed application form to apply for the mortgage and then the Deed. Prior to this they did ask Borrowers to sign and this was their standard way of operation.But there was no change in the law to initiate this new method.

 

Dodge - 'case law is there should you wish to read it? ' Could you kindly oblige and post or point the case/cases out. Many thanks!

[bhall]

Good Morning

 

It is nice to see Apple back after a few days away. All we need now is Is It Me? to comment and bring this to a close.

 

I would have thought, call this speculation if you will that if Is It Me?'s friend's application was in anyway successful, he would not be able to resist telling everyone.

 

Yet, we know that a decision has been issued and there has been nothing said by Is It Me? despite his insistence recently that everyone should make an application.

 

We should not lose sight that the decision was in regard to two applications and not just that of Is It Me?'s friend.

 

Today, I visited a site (fletch you will know which one, you recently posted there ) which has threads about mortgage deeds being unsigned. Unlike CAG it would appear that users can amend old posts as on the 25th a user amended their posts on this topic to now read "Unfortunately this avenue has proved unsuccessful, so post removed". As I understand it, this person was involved in promoting this idea and helping others on the basis on that idea.

 

I wonder, again call this speculation if you will, if this is a reflection on the decision issued of the Property Chamber.

[Peterbard]

I do wonder about the equitable mortgage argument to be honest. Equitable charges/mortgages are recognised by the courts to deal with a situation where one party entered into a contract for the grant of a charge/mortgage, in a situation where the legal formalities for granting charge/mortgage were not properly complied with.

 

A contract for the grant of a charge/mortgage is a contract for the disposition of an interest in land. These are covered by section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 which states that such agreements must be in writing signed by both parties.

 

Accordingly, if a lender cannot prove that it signed the loan agreement, I struggle to see how it could ask the court to enforce an equitable mortgage. There will certainly be an implied contract for repayment of the money but implied contracts do not meet the formalities of section 2.

 

My personal view is still that I think it is very unlikely that any of these applications will be successful. But if they are I think that lenders who do not have loan agreements signed by both parties will only be unsecured creditors; and the only way to get at the house would be through the CCJ enforcement process or through making the borrower bankrupt.

 

Yes but as said we are talking about equitable mortgages, which is not the subject of the OPs case.

 

Regarding the section 2 condition for equitable mortgages, it seems to me that this is not an "agreement" as in for instance the case of a loan agreement, it is more a method of ensuring that all terms and conditions are present, on completion. The actual execution the mortgage or the main part of it if you like is done by the deposit of the title deed as it always has.

 

The regulation may make it difficult to enforce the charge if the requirement is not met on an equitable mortgage it is true as shown in Sahib.

[applecart]

Anyway.

 

Lets get back to the decision from the chamber. I am sure we all agree that such a decision would present a major headache for the lenders and be a big deal for the industry. So why have we not heard anything.

 

Lets not forget, the lender cannot enforce[/b,] the deeds is void , the defense was dumbstruck, there is no defense, seems like there is after all

 

LOL

 

You forget, whatever the decision - whether to the favor of the Borrower or the Lender - either party will be faced with a further challenge......it could be the Borrower has to defend his position against a lender who Lost and vice versa......that's only natural..... far too much at stake to shut up shop at the first hurdle for either party....although I do recall you were keen to shut the thread down a while back.....

 

I can imagine the case will remain live until it gets to the European Court if need be....... this is not a repossession hearing Dodge ; )

 

Apple