Repossession questioned by deeds not being signed

[bhall]

Hello Is It Me ?

 

Your friend can obtain a copy of the charge at companies house, online via the Companies House website. It will only cost £1

 

It used to be a companies house form 395 but it now a MG01

 

All your friend need do is enter the details of the company involved and pay £1 and he/she will have a copy of the charge at companies house.

 

Hope the above helps

[bhall]

In terms of your request for a statement of truth, have you applied to the court to make an order that the lender "clarify any matter which is in dispute in the proceeding" or "give additional information in relation to any such matter, whether or not the matter is contained or referred to in a statement of case.", as per Part 18 of the CPR ?

[bhall]

Whilst I anticipate that my input will not be welcome, especially by the OP, I would like to add a word of caution - think of it as an argument that you may face that you can consider now, before you return to court.

 

A Barrister does nothing wrong in reminding any DJ or HCJ that 'the title register is conclusive'... What you need to be aware of is ......the Title Register is Conclusive.....this is so regardless of how it got there...regardless of whether the lender has since sold on his interest or not....regardless of whether you can prove the sale or not....... (they will not be flouting the Law in saying this - because, that is exactly what the Law says....it will seem to you that they are flouting the Law against the evidence...but they are not...let me repeat...it is what the law says....so be mindful..ok) Likewise, the fact that you can prove the lender has sold the mortgage is not at issue - the issue is the Title Register.... so long as the Lenders name is on the Title....He has a right to possession in the eyes of the Law....

 

For whilst you and I both recognise that the sale is a means for lenders to make loads of quick money - it is a fact that UNLESS you can evidence that the Deed is void - you will always be met with the same circular contention in any court of law - that the title register is conclusive .....including in a court of Appeal.....

 

To follow on from what Apple has said above and being something I for once agree with her about, I would just say be aware and be prepared that the Mortgage Sale Agreement for Accord states -

 

6.2 For the avoidance of doubt, prior to the completion of the assignment, assignation, or transfer (as appropriate) of any Loan and its Related Security to the Issuer pursuant to Clause 6.1 , with effect from the Closing Date relating to that Loan and its Related Security legal title to each Loan and its Related Security in the Portfolio shall be vested in the Seller and sole beneficial title and interest shall be vested in the Issuer. Prior to perfection of the transfer of the legal title to Loans and their Related Security pursuant to this Clause 6, the Seller undertakes (to the extent that any of the following is vested in it) to hold all right, title, interest and benefit (both present and future) in and under (a) the Loans and their Related Security, following the acquisition of such Loans and their Related Security by the Issuer and (b) any sums that are or may become due in respect thereof, on trust for the Issuer (excluding from such trust any Loans which have been repurchased by the Seller).

6.3 Perfection of the transfer, assignation and assignment in accordance with Clause 6.1 of:(a) the English Mortgages in the Portfolio shall be effected by means of a transfer in the form of the relevant Land Registry Transfer set out in Schedule 2 (Register of Transfers);

 

This relates to the information posted by Apple in regard to the lenders name being on the register

 

Edited June 30, 2013 by bhall

[bhall]

Whilst I won't repeat my arguments here in relation to why I consider Apple's arguments that the mortgage deed is void by lack of the signature of the lender to be based on a misunderstanding of the implications of the changes made to the applicable legislation, I would like to add one more caution - please think of it again as a chance to consider the potential argument now, before you return to Court.- this will give you time to prepare counter arguments

 

In all the cases about securitisation, such as paragon v pender 2003 2005, Bank of Scotland Plc v McGuigan, Wellstead -v- Judge White & Anon, Santander UK Plc v Harrison etc etc, it was never disputed and accepted that a sale took place.

 

Rather it was that the sale was left uncompleted, in that the transfer was not perfected by registration.

 

You should also make yourself familiar with the findings of Paratus AMC Ltd & Anor v Countrywide Surveyors Ltd [2011], Southern Pacific Personal Loans Ltd v Walker & Anor [2009], Southern Pacific Securities 05-2 Plc v Walker & Anor [2010]

 

Closer inspection of the last two cases will show that the first involved the lender (SPPL) and the second involved the SPV (SPS 05-2) - notices of the change of ownership were provided to SPPL borrowers and the land registry was also updated to reflect the change from SPPL to SPS 05-02

[bhall]

The statement of truth is signed by a case executive(?) and are in accordance with my instructions from the claimant and goes on to say about the deed and Law of property Act 1989 and that under sec2 (a) and (b) and as it is signed by the borrowers and witnessed and also clearly states ' mortgage deed' it complies with the formalities for the execution of deeds laid down under the act.

They also state that there is no requirement for the deed to be executed by the lender as the deed is not a simple contract requiring an offer, acceptance, consideration and an intention to create legal relations (then what is??)

As the only ones having obligations under this deed are the borrowers it is therefore not necessary for the lenders to sign the deed and therefore the deed is validly executed.

 

This is I am afraid to say correct and a true reflection of current legislation - being s.1 and not s.2 and it should be noted it is exactly the same points as I have posted in the thread created to discuss if a mortgage deed is required to be signed by the lender (which it clearly isn't).

 

Whilst on the face of it, Apples arguments may sound and appear to be based on legislation and it is understandable that someone in your friends situation wants and needs Apple to be right - remember that there are different opinions to those of Apple which should be considered carefully as it has been shown above those other opinions closely reflect those arguments that you have and may in the future face in Court.

 

As they say, forewarned is forearmed

 

But the deed signed by the company which is executed the company for the sale agreement has been done by common seal

Any thoughts??

 

The Mortgage Sale Agreement, actually includes a number of different deeds. You should note that some of deeds contained within that document are only to be signed by one party and not the other. An example of which includes the Deed of Power of Attorney.

 

This may be an area in which you would like to look into further.

Edited June 30, 2013 by bhall

[bhall]

The Mortgage Sale Agreement, actually includes a number of different deeds. You should note that some of deeds contained within that document are only to be signed by one party and not the other. An example of which includes the Deed of Power of Attorney.

 

This may be an area in which you would like to look into further.

 

To add to the above

 

This is a link to the Deed of Assignment between the lender Accord and the SPV Brass No.1

 

You will note that this deed, is only required to be and is only signed by Accord and a witness. It is only required to be signed by Accord as it only contains obligations for Accord. Brass No.1 does not have to sign it, as the deed includes no obligations for brass. Naturally, this deed is subject to the Mortgage Sale Agreement and the clause previously posted in regard to perfection

[bhall]

If your friends mortgage is included within the Brass No.1 securitisation the following is a complete set of documentation.

 

Agency Agreement

Assignation of Third Party Rights

Assignment of Third Party Buildings Policies

Bank Account Agreement

Cash Management Agreement

Corporate Services Agreement

Deed of Assignment

Deed of Charge

Fixed Rate Swap Confirmation

Floating Rate Swap Confirmation

Guaranteed Investment Contract

ISDA Credit Support Annex

ISDA Master Agreement

ISDA Schedule to Master Agreement

Master Definitions and Construction Schedule

Mortgage Sale Agreement

Prospectus

Scottish Declaration of Trust

Scottish Supplemental Charge

Servicing Agreement

Subscription Agreement

Trust Deed

[bhall]

Yes I got these and they make a good read Have you read them?

 

Good Morning IS IT ME?

 

Yes, I have read them. It is good to note that you have read them too as it will mean that you are already aware and prepared for -

 

From the Prospectus page 58

 

"The sale by the Seller to the Issuer of the English Loans and their Related Security (until legal title is conveyed) takes effect in equity only. The sale by the Seller to the Issuer of the Scottish Loans and their Related Security is given effect to by a Scottish Declaration of Trust by the Seller by which the beneficial interest in such Scottish Loans and their Related Security is held on trust by the Seller for the benefit of the Issuer.

 

In each case, this means that legal title to the Loans and their Related Security in the Portfolio will remain with the Seller until certain trigger events occur under the terms of the Mortgage Sale Agreement (see "Summary of the Key Transaction Documents — Mortgage Sale Agreement" below). Until such time, the assignment by the Seller to the Issuer of the English Loans and their Related Security takes effect in equity only whereas in respect of the Scottish Loans and their Related Security held on trust pursuant to the Scottish Declaration of Trust by the Seller in favour of the Issuer, the Issuer will hold a beneficial interest only.

 

The Issuer has not and will not apply to the Land Registry to register or record its equitable interest in the English Mortgages and may not in any event apply to the General Register of Sasines or Land Register of Scotland (as appropriate) (together the Registers of Scotland ) to register or record its beneficial interest in the Scottish Mortgages pursuant to the Scottish Declaration of Trust."

 

As you already know in Paragon Finance Plc v Pender & Anor [2005] EWCA Civ 760 (27 June 2005), one of judgements was -

 

 

"109. In my judgment Mr and Mrs Pender's case on this issue is misconceived. It is common ground that Paragon, as registered proprietor of the Legal Charge, retains legal ownership of it. One incident of its legal ownership – and an essential one at that – is the right to possession of the mortgaged property. I can see no basis upon which it can be contended that an uncompleted agreement to transfer the Legal Charge to the SPV (that is to say an agreement under which, pending completion, the SPV has no more than an equitable interest in the mortgage) can operate in law to divest Paragon of an essential incident of its legal ownership. In my judgment as a matter of principle the right to possession conferred by the Legal Charge remains exercisable by Paragon as the legal owner of the Legal Charge (i.e. as the registered proprietor of it), notwithstanding that Paragon may have transferred the beneficial ownership of the Legal Charge to the SPV. "

[bhall]

The above judgement from Pender - being

 

"I can see no basis upon which it can be contended that an uncompleted agreement to transfer the Legal Charge to the SPV (that is to say an agreement under which, pending completion, the SPV has no more than an equitable interest in the mortgage) can operate in law to divest Paragon of an essential incident of its legal ownership. In my judgment as a matter of principle the right to possession conferred by the Legal Charge remains exercisable by Paragon as the legal owner of the Legal Charge (i.e. as the registered proprietor of it), notwithstanding that Paragon may have transferred the beneficial ownership of the Legal Charge to the SPV."

 

Closely resembles the position as portrayed in the Accord Mortgage Sale Agreement being

 

6.2 For the avoidance of doubt, prior to the completion of the assignment, assignation, or transfer (as appropriate) of any Loan and its Related Security to the Issuer pursuant to Clause 6.1 , with effect from the Closing Date relating to that Loan and its Related Security legal title to each Loan and its Related Security in the Portfolio shall be vested in the Seller and sole beneficial title and interest shall be vested in the Issuer.

 

Prior to perfection of the transfer of the legal title to Loans and their Related Security pursuant to this Clause 6, the Seller undertakes (to the extent that any of the following is vested in it) to hold all right, title, interest and benefit (both present and future) in and under (a) the Loans and their Related Security, following the acquisition of such Loans and their Related Security by the Issuer and (b) any sums that are or may become due in respect thereof, on trust for the Issuer (excluding from such trust any Loans which have been repurchased by the Seller).

6.3 Perfection of the transfer, assignation and assignment in accordance with Clause 6.1 of:(a) the English Mortgages in the Portfolio shall be effected by means of a transfer in the form of the relevant Land Registry Transfer set out in Schedule 2 (Register of Transfers);

 

Anyway, I am glad that you have read them and that you are prepared for the potential legal arguments that you may face.

Edited July 2, 2013 by bhall

[bhall]

In all the cases about securitisation, such as paragon v pender 2003 2005, Bank of Scotland Plc v McGuigan, Wellstead -v- Judge White & Anon, Santander UK Plc v Harrison etc etc, it was never disputed and accepted that a sale took place.

 

Rather it was that the sale was left uncompleted, in that the transfer was not perfected by registration.

 

You should also make yourself familiar with the findings of Paratus AMC Ltd & Anor v Countrywide Surveyors Ltd [2011], Southern Pacific Personal Loans Ltd v Walker & Anor [2009], Southern Pacific Securities 05-2 Plc v Walker & Anor [2010]

 

Closer inspection of the last two cases will show that the first involved the lender (SPPL) and the second involved the SPV (SPS 05-2) - notices of the change of ownership were provided to SPPL borrowers and the land registry was also updated to reflect the change from SPPL to SPS 05-02

 

I hope you found the above detailed cases interesting and that reading them has helped you prepare for the legal arguments that you may face in times to come.

 

Whilst I will now be away from home for a short while, I hope when I return home that I find that you have been successful in helping your friend, whilst you may not appreciate my input I wish you the best of luck.

[bhall]

bhall, I thank you for your input and all input is welcome.

This has been argued in court before and our argue against it has also been heard but there is some thing which is not the same as the Pender case and I can not say any more than that at this time.

I hope you have a good time away and on your return you will see what has happened and were we are.

Caro I agree.

There must be some thing in this for it to have 18 watcher last night and no postings.

 

Thank you, Is It Me? unfortunately it was work and not pleasure related. I am home for the weekend and away again Sunday night.

[bhall]

well he has had an order from the Property chamber as it is now known and it states; (Going by what he has said over the phone)

The application should be struck out as it has no prospect of succeeding

The LR should be removed as the respondent and the lender be put in its place

the reasons being;

HM is not a party to the charge(we never said they were)

The application is made under sec 108(2) of the LR act (?) 2002.

The tribunal has no power to make an order to alter the register when exercising its jurisdiction under sec 108 (2), it can only rectify or set aside a document under sec 108 (2) and the register of title is not a document for the purpose of that provision.

Charges do not as a matter of law(?) always require execution by the lender as well as the borrower.

The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.

The charge is not in a form showing that it is required to be executed by the lender

The LR form CH1 does not require execution by a lender except where a note on the register of an obligation to make further advances has been applied for.

 

we have 14 days to make representations.

 

I have read and re read the law on this and I can not for the life of me see where this has charged, its not only me reading what I what to read or see what I whant to see but it is there.

So apple any thoughts???

 

I said all a long this will be a fight and very hard to get justice as this was all done behind closed doors.

 

I am sorry that this initial response was not more favorable for your friend. However, as I have previously posted the above findings being -

 

 

• Charges do not as a matter of law always require execution by the lender as well as the borrower.
  
• The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.
  
• The charge is not in a form showing that it is required to be executed by the lender
  
• The LR form CH1 does not require execution by a lender except where a note on the register of an obligation to make further advances has been applied for.
  

Are all correct and is a true reflection of the statutory requirements stipulated by the applicable legislation.- Despite the posts made by Applecart to the contrary.

[bhall]

What I find most surprising is that the response you received would seem to have come straight out of Ben's mouth (sorry Ben, but it really does...lol)

 

To be honest, I really began to really consider that it was Ben that you mailed the application to - or maybe, the 'independent' Adjudicator from his 'independant office' passed your application to Ben to respond to?....................lol

 

Hello Apple

 

Isn't the reason for similarities between what I have previously posted and the offical response from the Adjudicator of the Land Registry which on 1 July 2013 combined with the Residential Property and the Agricultural Land Tribunals to form the First-tier Tribunal Property Chamber, obvious ?

 

 

• Charges do not as a matter of law always require execution by the lender as well as the borrower.
  
• The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.
  
• The charge is not in a form showing that it is required to be executed by the lender
  
• The LR form CH1 does not require execution by a lender except where a note on the register of an obligation to make further advances has been applied for.
  

 

As you have implied the findings of the First-tier Tribunal Property Chamber is almost identical to the information that I have posted and you dismissed as being incorrect.

 

Given that the above is the official findings of the First-tier Tribunal Property Chamber and is as I have posted on numerous occasions during the last few months, fully supported by case law and legislation (just not your interpretation of that case law and legislation), don't you think it maybe time to consider that you simply have it wrong and you have misunderstand the legalities involved ?

 

If you have not considered that possibility, it might be time that you should.

[bhall]

or may be that's what you wish BHal, if you look at that point you and the panel have said NOT always require that does NOT mean they do not!

 

So you say that sattue law is worng and should not be looked at? it also states that generally??? what is this then

What case law do you think supports your findingsl

 

Hello Is It Me?

 

If you look at this thread

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?386717-Mortgage-Deed-Does-it-need-to-be-signed-by-the-lender

 

Eagle Star Insurance Company Ltd v Green & Anor [2001] EWCA Civ 1389 (8 August 2001) (including previous and subsequent hearings) -

 

As you joked with Apple, the information and conclusions of the order you posted is almost identical as to what I have posted. Please do not shoot the messenger.

 

You will also see that I have said that in some situations a signature of the lender is required. An example being the CH1 form when there is an obligation for a further advance.

 

I have not and do not say that the legislation is wrong. All I have ever said and continue to say is that Apples interpretation of the legislation is wrong. If you look at the changes made by the RRO 2005, it doesn't make any change that refers to the requirement that a lender must sign the deed.

 

By way of an example how does changing

 

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

 

To

 

“(i) It is validly executed as a deed by that person or a person authorised to execute it in the name or on behalf of that person, or

(ii) It is validly executed as a deed by one or more of those parties or a person authorised to execute it in the name or on behalf of one or more of those parties.”.

 

Or changing

 

(b)it is delivered as a deed by him or a person authorised to do so on his behalf.

 

To

 

(b) it is delivered as a deed

 

Mean that a lender has to sign the deed ????

 

I feel that Apple, be it with the best intentions has confused what a company must do when it grants a deed with her argument that a lender must sign the deed. They are of course two different things and should not be confused.

 

Please remember, unlike Apple of course that told you that the Mortgage Deed HAD to be signed by the lender, otherwise it is Void.

 

The order you have received clearly and beyond any reasonable doubt confirms that is not the case - In otherwords, if a mortgage deed is not signed by the lender, it does not automatically make it void.

 

Ben

 

Please excuse any mistakes in the above post. It has been written using my phone and the forum displays differently in its mobile browser. When I have the opportunity, if necessary I will repost.

Edited July 7, 2013 by bhall

[bhall]

I thought we posted the document up on the thread ?

 

Hello citizenB

 

I think there are some cross wires here. I don't think Apple is referring to her own document.

 

I think Apple wants IS IT ME? to provide her with copies of the information and documentation (based upon the document posted by the site team on behalf of Apple) that his friend provided to the Land Registry as part of his application to set aside the deed, so that Apple can review them for any possible mistakes which resulted in the order previously posted by IS IT ME?

 

IS IT ME? wants to provide them to Apple via personal message / instant message. However, for whatever reason Apple is unable to send or receive messages. Therefore, I think what they want to do, is for IS IT ME? to send the information and documentation to a member of the site team and then for it to be then forwarded onto Apple.

[bhall]

Everything needs to be kept on the open forum as per the site rules. Your posts confirm that you are not yet ready to have PM facilities reinstated.

 

I agree that discussion on this topic should be kept in the public domain.

 

Whilst there can be arguments made in relation to the information submitted to the Property Chamber, being confidential (the other party being stated following Apples advice the Land Registry and not the Lender), Is It Me? has already submitted it to the Adjudicator of the Land Registry, so there is no real risk of anything confidential being exposed to the 'other side' by it being posted here.

 

Essentially, all that needs to be confirmed is if Is It Me? followed Apples advice to the letter, or changed it in someway. If the advice was not followed, how was what was submitted different to Apples advice. Again, as Is It Me? has already submitted that information, there is little risk of a breach of confidentiality. This is even more the case as nothing relevant to Is It Me?'s friend need be disclosed on CAG, as any personal information would be completely irrelevant.

 

One benefit of keeping the discussion in the public domain is that it allows any advice provided to be assessed, challenged and corrected where necessary, as has been the case here.

 

I hope Is It Me? decides to continue to use CAG, as using another forum such as the void mortgages / freeman type forums will in my opinion be of little benefit except to give him a one sided view of the world, full of unsuccessful arguments and a lot of wishful thinking.

 

My own view remains unchanged and is reinforced by the order posted by Is It Me?

 

 

Charges do not as a matter of law always require execution by the lender as well as the borrower.

 

The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.

 

Both of these findings clearly confirm that Apples entire argument is based upon the misunderstanding that if a mortgage deed has not been signed by the lender it is void.

 

Now that a response has been provided by the Land Registry, Apple is blaming IS IT ME? for the response - being the complete opposite to Apples argument - Apple considers that IS IT ME? Must have done something wrong - It can't be that Apple is wrong - that would be impossible.

 

So much so that as the response from the Property Chamber disproves rather than proves Apples argument - Apple considers the posting of the order to be "allegations" and hearsay that could result in either the poster of the order or even CAG (????) facing litigation.

Edited July 11, 2013 by bhall

[bhall]

I have said before and will show when the post is up that Bens posting is nearly word for word on this matter and I believe he or she (Simon)howeverr works for the lenders or in their legal side.

I for one will now not answer his posts which is my right.

 

Hello Is It Me?

 

If I worked either for the lender or their legal side, why would I have spent so much time, correcting the advice given by Apple ?

 

Wouldn't it be better if I worked for the lender or their legal side, to let you go to court with a defense to possession based on Apples misunderstandings rather than the law ?

 

If I worked for either a lender or their legal team, I would just sit here quietly and not say a word and let you walk into court with an argument that has absolutely no legal basis. This is not just my opinion, you have to remember it is also the opinion of the First-tier Tribunal Property Chamber.

 

The order you have posted states that the Property Chamber, which incorporates the Adjudicator for the Land Registry considers that -

 

The application should be struck out as it has no prospect of succeeding

 

'No prospect of succeeding'

 

You have to remember, it is the view of the Property Chamber that is important, Apple can say and believe whatever he/she wants. When you go back to Court, you will be asked what was the response from the Adjudicator, not what is the view of Applecart.

 

Let's be realistic here for a moment, is it even possible that you could have submitted anything that would have any impact upon the findings of the Property Chamber - being

 

• Charges do not as a matter of law always require execution by the lender as well as the borrower.
  
• The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.
  

Of course not, the Property Chamber has told you that it is a matter of law that the deed does not always have to be signed by the lender.

 

The Property Chamber has also told you that as it is the borrower that creates the charge, generally only the borrower needs to sign it.

 

I have gone to great lengths to explain in detail why this is the case in my previous posts (obligations etc)

 

The reason the information that I have posted, is so similar (as you and apple both say almost it is almost word for word) to the order of the Property Chamber, is because my posts have been based upon the law, as the order from the Property Chamber would have been and not Apples incorrect interpretations of the law. I take it as a compliment that you consider my posts to be on par to the Property Chamber's findings.

Edited July 11, 2013 by bhall

[bhall]

Looking at my original post it was too long, so I have broken it in two to make it easier to read -

 

In case it was missed in my previous post, I did not say or imply that any personal information about Is It Me?'s friend should be posted on CAG- only the legal arguments submitted to the Adjudicator -

 

Essentially, all that needs to be confirmed is if Is It Me? followed Apples advice to the letter, or changed it in someway. If the advice was not followed, how was what was submitted different to Apples advice. Again, as Is It Me? has already submitted that information, there is little risk of a breach of confidentiality. This is even more the case as nothing relevant to Is It Me?'s friend need be disclosed on CAG, as any personal information would be completely irrelevant.

 

You have said that you will now not respond to my posts. I am sorry that is how you feel. I appreciate and regret that the truth is not always something that is nice to hear.

 

I would like to wish you all success in your attempts to help your friend and out of respect to you, I will not make any further posts in this thread.

 

I leave with one final thought, who knows more about Property Law ? Apple a faceless poster on an internet forum or the First-tier Tribunal Property Chamber ?

 

At least take the time to read the applicable rules http://www.legislation.gov.uk/uksi/2013/1169/contents/made

 

Remember despite everything that Apple has posted, he/she has never been able to post any statutory requirement or case law that expressly states that a mortgage deed that has not been signed by the lender is void - That omission, speaks for itself.

 

All the best

 

Ben (not sure who Simon is)

 

Thank you to those that have clicked on the green reputation as a result of what I have posted in this thread, it is very much appreciated

[bhall]

.... because the Law contradicts what the 'response' says...a CH1 is not a Deed...

 

Erm I need to correct you here again

 

Remember - "charge by deed expressed to be by way of legal mortgage"

 

http://www.landregistry.gov.uk/_media/downloads/forms/CH1.pdf

 

10. The borrower must execute this charge as a deed using the space opposite. If there is more than one borrower, all must execute. Forms of execution are given in Schedule 9 to the Land Registration Rules 2003

 

http://www.landregistry.gov.uk/professional/guides/practice-guide-29

 

A charge may be made in form CH1 in accordance with r.103, LRR 2003. This form is not prescribed and lenders may use charges tailored to their own particular requirements.

 

http://www.legislation.gov.uk/uksi/2003/1417/article/103/made

 

The Land Registration Rules 2003

 

Form of charge of registered estate

 

103. A legal charge of a registered estate may be made in Form CH1.

Edited July 11, 2013 by bhall

[bhall]

a document in the form of a Deed with only the signature of the Borrower does not create a 'legal' charge...

 

According to the Property Chamber that incorporates the Adjudicator of the Land Registry

 

 

• Charges do not as a matter of law always require execution by the lender as well as the borrower.
  
• The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.
  

http://www.legislation.gov.uk/uksi/2...ticle/103/made

 

The Land Registration Rules 2003

 

Form of charge of registered estate

 

103. A legal charge of a registered estate may be made in Form CH1.

 

Remember the order from the Property Chamber states -

 

"The LR form CH1 does not require execution by a lender except where a note on the register of an obligation to make further advances has been applied for."

Edited July 11, 2013 by bhall

[bhall]

Lol I thought my point was obvious.

 

I will make it again, just to make it clear.

 

As confirmed by the Property Chamber which incorporates the Adjudicator of the Land Registry, you have misunderstood the law. You reasoning is flawed and has no legal basis except that of your own misunderstanding and interpretation.

 

You are blinded to the obvious realisation that you have this wrong. This reminds me of watching the Apprentice last night, that guy was so sure about his business plan that he refused to even consider that he was wrong, even when people that knew told him.

 

Sounds very familiar to this thread ;-)

[bhall]

Afternoon both.

 

Will you keep it down? I'm trying to watch the Cricket

 

Lol, will do Sequenci. I have a headache from banging my head against the brick wall that is Apples ego anyway.

 

I guess even if you show someone a plank, they still can't see the wood for the trees. Apple remember the property chamber has said that you are wrong. Time to accept it.

 

I need say no more

[bhall]

God your good apple lol,

Lets see what they now come bank with.

 

If you are seriously going to rely upon the document written by Apple (personally I wouldn't and urge the upmost caution - don't worry I won't go into detail) - Before sending it, you might want to post on this thread, so that Apple can read it, the wording of the deed signed by your friend. This is only a suggestion as you may find the wording of the deed has a bearing on the information contained within that document /advice given by Apple.

 

The choice is yours

 

Ben

[bhall]

please therefore do not reply to this thread any more as it is for serious people.

 

I am very serious, but it is your thread and your choice. So be it

[bhall]

As I am being discussed, I exercise my right to reply.

 

Is It Me? with all due respect, would you rather that I post yes you can do this, yes you can argue that - when those actions and arguments are flawed and have no real basis in law (not supported by statute or case law) ?

 

I don't consider posting flawed arguments to be either helpful or supportive.

 

By way of an example, as both you and Apple joked, the response you received from the Property Chamber, was the same as I had posted in this thread. You have only shown interest on pursuing a defense to your friends possession on the grounds promoted by Apple. I personally consider it to be helpful to show why that advice is wrong.

 

As I have said previously there are very good reasons why what I have posted has been virtually identical to the response your friend received from the tribunal. Those reasons being that the arguments you have elected to use are based on misunderstandings.

 

I can't post anything in support of the course, you have decided to follow - It has absolutely no basis in law and is based upon Apple's interpretation which has already been shown is incorrect by the order provided by the Property Chamber. -

 

Apple

Here is the full reply;

 

Upon reading(?)lol the application dated 10th may under sec 108(2) of the LR Act 2002

and upon the tribunal considering that the application ought to be stuck out as there is no reasonable prospect of the application succeeding.

 

It is ordered as follows;

 

Her Majesty's land reg is to be removed as the respondent[ person against whom an order is sought] to this application

The applicant has until 5pm 16th July to make written representations in relation to the proposed striking out of the application

 

This order is made pursuant to rules 9 and 10 of the tribunal procedure (first tier tribunal property chamer rules 2013.

Reasons,

 

1 The application is to set aside a charge dated xxyyzzz made between (1) Lender and (2) the borrower HM land registry is not a party to that charge. The application is made under sec 108(2) of the LR act 2002. The tribunal has no power to make an order to alter the register when exercising its jurisdiction under sec 108(2).

 

It can only rectify or set aside a document under sec 108(2) and the register of title is not a document for the purpose of that provision.

So, HM land registry should not be named in part 3 of the application but the lender should be named instead of HM land registry.

 

Charges do not as a matter of law always require execution by the lender as well as the borrower. The charge is created by the borrower not the lender so generally only requires execution by the borrower.

The applicant does not contest that they executed the charge so dated. The charge is not in a form showing it required to be executed by the lender.

 

The authorities relied on by the applicants concerned whether documents had been properly executed and not whether a lender is required to execute a charge.

The land re form of charge CH1 does not require execution by the lender except where a note on the register of an obligation to make further advances has been applied for.

and that's it.

 

what I would say is that there has been no CH1 form nor have they really read the application because it does very clearly state that the lender should execute the deed.

 

I also note is uses the term generally, always and why say the tribunal can not rectify the register because it's not a document?

 

so what do you think apple lets prove your right.

 

Despite the order stipulating

 

"The applicant has until 5pm 16th July to make written representations in relation to the proposed striking out of the application"

 

Apple has not addressed the reasons given as too why the application is being struck out by the Property Chamber such as the charge ( - keyword charge - which in itself proves it is not a mortgage by demise) does not as a matter of law always require the execution by the lender as well as the borrower - Apple has not also addressed that the Property Chamber concluded that the charge is created by the borrower not the lender so generally only requires execution by the borrower.

 

The reason being, as has already been argued in Court

 

As the only ones having obligations under this deed are the borrowers it is therefore not necessary for the lenders to sign the deed and therefore the deed is validly executed.

 

Instead Apple has gone on a diversion about mortgage by demise ???

 

How can there be such a charge - if as now suggested by Apple it is a mortgage by demise ??? - The charge is evidence that it is not a mortgage by demise.

 

You have chosen to follow Apples advice that is your choice. However, to give Apple an opportunity to amend/correct that advice - I have suggested and would highly recommend that you post the terms of the deed signed by your friend. Those terms have serious implications in terms of the information posted in the document recently posted in this thread.

 

As an example -

 

Does the deed say that it is for a 'mortgage by demise' with reference to a term and redemption ? or does it say that it 'charges the Property by way of legal mortgage' - being a 'charge by deed expressed to be by way of legal mortgage' and not a mortgage by demise. - To emphasis my point this is a link to an uptodate deed for Accord - http://www.accordmortgages.com/documents/ACCL0002MR.pdf

 

"3.The Borrower with full title guarantee charges the Property by way of legal mortgage with the payment of all monies which are or may become payable to the Lender by the Borrower, (except monies payable under any agreement whenever made which expressly provides that they are not to be secured by this mortgage"

 

Come on Is It Me? from a purely Property Law point of view points 3 (i), 3 (ii) and 3 (iii) of Apple's document contradict and conflicts each other.

 

 

I won't even bother going over again why Apples conclusions that the changes to the legislation mean that the lender has to execute the deed are flawed, as you are clearly not interested.

 

Sorry if you do not feel that this is helpful.

 

I reserve the right to respond further, if and when I am discussed.

 

Ben

Edited July 15, 2013 by bhall