Repossession questioned by deeds not being signed

[UNRAM]

Hi Ben

The cases you refer to were not relied upon by the Lender in Is It Me case as party to their 'response' unlike you....... even they realised... those cases do not defend section 1 mate....lol

Apple

My lender actually did refer to Lamb vs Mortgage Business in its defense of assertions made in this thread... I was quite surprised... It seemed entirely inappropriate...

Edited October 26, 2013 by UNRAM

[UNRAM]

contents removed. CAG please remove post.

[bhall]

Ok time to start putting some if these myths to bed once and for all.

 

If a Borrower has no power to grant a 'mortgage'.....how can they argue 'specific performance' due to an 'equitable mortgage' Sequenci? are you void of logic man...... come on

 

Where the draft representation speaks of 'at best section 1 (7) of the LPA 1925'...... I was giving lenders a rope to hang themselves in relation to registered land.....nothing more....... it would seem..... those property lawyers are falling for the trap set ....... hahahahaha.....looks like they will cling to any port in a storm....lol

 

Apple

 

According to Apple since the Land Registration Act 2002 a borrower no longer has the power to grant a charge by deed expressed to be by way of legal mortgage. Apple even goes further to claim that reference to a charge by deed by way of legal mortgage is an invalid charging term.

 

Apples claims sound almost rational and based someway in the law. Apple can tell a great story, there you go, a compliment from me to Apple.

 

Now I say a story because at the end of the day that is all it is. Apple talks about the legislatures intent as if Apple knows them all on a first name basis, or may be Apple is a mind reader and does a bit of Mystic Meg on the side, who knows.

 

Anyway back to the claims that a borrower does not have the power to grant a legal charge. Keen readers of this thread will know that this idea sprung to life as Apple wrongly thinks that s.23(2) of the LRA 2002 details the powers of the borrower, when they are actually the powers of the lender.

 

So there we have it, I say that a borrower can grant a charge by deed expressed by legal mortgage and Apple says a borrower can't.

 

Time has far gone past that this part of the debate was laid to rest - R.I.P debate about if a borrower can grant a legal mortgage, fair well to endless discussion about if 'grant a charge by deed expressed to be by way of legal mortgage' is a valid charging term and say hello to.....

 

The Land Registration (Electronic Conveyancing) Rules 2008

 

Ladies and Gentlemen, I give you Schedule 1(1)(j) Contents of an Electronic Charge

 

"(j)a statement to the effect that the Borrower (stating, if desired, whether with full or limited title guarantee) charges to the Lender the property referred to in sub-paragraph (a) by way of legal mortgage with payment of all money secured by the charge,"

 

So there we have it folks a statutory instrument confirming that a borrower can grant a legal mortgage after all and "by way of legal mortgage " is not an invalid charging term and it is a requirement that the charge states that. Of course the above applies to e-conveyancing but there can be no doubt that it proves a borrower can grant a legal mortgage.

 

(As confirmed by UNRAM's post - 5.A document to which this section applies is to be regarded for the purposes of any enactment as a deed - so there you go a charge by deed expressed to be way of legal mortgage)

 

To head off Apples usual response of ' not registered estates etc' the legislation does refer to registered estate - if you read it.

 

If any doubt remains please look at Schedule 1 of the Land Registration Rules 2003 - remember that Apple claims that a borrower can't grant a charge by deed expressed by way of legal mortgage.

 

If you look at schedule 1 scroll down to CH1 - the form entitled LEGAL CHARGE OF A REGISTERED ESTATE - box 8 states "charges the property by way of legal mortgage"

 

So if Apple is right, why does the LRR 2003 contain a form to allow a borrower to charge a registered estate by way of legal mortgage ???

 

Let's not forget box 9 which confirms that it is a deed (mortgage deed) and only needs to be signed by the borrower unless the lender has applied to note an obligation to make a further advance.

Edited October 26, 2013 by bhall

[bhall]

It happened like this: they sent me an email saying "under the terms... blah blah blah... you have to pay... blah blah... do what we say... blah blah". Standard terms... So I said...

 

In order that I may respond appropriately to your notice to deduct money from the proceeds of the sale of my estate I request presentation of a document pursuant to the Land Registration Act 2002 section 91. Your clients form of charge was only signed as a deed by the borrower before being filed at HM land registry ref MDxxxx. It would appear that there is no bilateral aspect to any part of my "mortgage agreement" with your client who appears to have completely avoided legally committing to any part of the contract (offer and deed) but nonetheless seeks to enforce it's purported terms and conditions. I have provided relevant extracts of land registration law for ease of reference. Please can you either accept or reject that this legislation applies to your clients form of charge before issuing any further demands for upfront payments. I would like to draw your attention in particular to section (4)(b).

 

(1) This section applies to a document in electronic form where—

(a)the document purports to effect a disposition which falls within subsection (2), and

(b)the conditions in subsection (3) are met.

(2) A disposition falls within this subsection if it is—

(a) a disposition of a registered estate or charge,

(b) a disposition of an interest which is the subject of a notice in the register, or

© a disposition which triggers the requirement of registration,

which is of a kind specified by rules.

 

(3)The conditions referred to above are that—

(a)the document makes provision for the time and date when it takes effect,

(b)the document has the electronic signature of each person by whom it purports to be authenticated,

©each electronic signature is certified, and

(d)such other conditions as rules may provide are met.

 

(4)A document to which this section applies is to be regarded as—

(a) in writing, and

(b) signed by each individual, and sealed by each corporation, whose electronic signature it has.

 

(5) A document to which this section applies is to be regarded for the purposes of any enactment as a deed.

 

Please note that (4)(b) denotes a bilateral signature requirement ("and" - not "or") for the deed stated in (5) which you have correctly identified as a contract.

 

Yours sincerely,

 

UNRAM

 

Without wanting to cause any upset

 

The legislation you quoted states that it applies to a document in electronic form. As your mortgage deed has a MD and not an E-MD reference, the legislation quoted does not apply as your mortgage deed is not in electronic form.

 

Besides which 4b doesn't denote a bilateral signature, it is only regarded as signed by whoever electronic signature it has - if the lender does not have to sign it, his electronic signature won't be there.

 

Remember companies can grant deeds too

 

Sorry, I thought you would want to know

Edited October 26, 2013 by bhall

[bhall]

My lender actually did refer to Lamb vs Mortgage Business in its defense of assertions made in this thread... I was quite surprised... It seemed entirely inappropriate...

 

It could well be that despite the references to section 2, the Judge still decided that the lender did not have to sign the deed, which after all is the same argument you have raised with the Property Chamber, just on a different basis.

[bhall]

Originally Posted by applecart

Hi Ben

The cases you refer to were not relied upon by the Lender in Is It Me case as party to their 'response' unlike you....... even they realised... those cases do not defend section 1 mate....lol

Apple

 

It is true that in the response to Is It Me? Neither case was mentioned, instead they just said, everything you interpreted about section 1 was wrong.

 

 

UNRAM has posted, his lender did refer to Lamb, the decision of which was based on Helden being one of the cases, I posted.

 

My lender actually did refer to Lamb vs Mortgage Business in its defense of assertions made in this thread... I was quite surprised... It seemed entirely inappropriate...

 

In addition both Optima Legal and Walker Morris in the articles posted rely upon those cases and don't forget whoever represented The Mortgage Business in the case of a Lamb, successfully relied on Heldon, so much so the judge concluded that the deed did not have to be signed by the lender.

 

 

So why you try to be clever, you fail again.

Edited October 26, 2013 by bhall

[bhall]

Ah but you are forgetting that many lenders especially sub prime did not present an underlying loan agreement to be signed by either party. The Deed alone was used referencing the terms and conditions to bind the customer to the 'debt' and would simply issue a Mortgage Offer which they didn't ask or require to be signed. If the Deed is found to be void, then the Lenders then do not have reliance on chasing the then unsecured debt as what are they going to present to any court? They have nothing no loan contract or agreement at all - they have nothing and there wll be no legal ability to chase or enforce the payment of this 'debt'. How bhall do you suggest in this situation Lenders could enforce or make a claim then?

 

WP

 

Hello WP

 

Long time no see, I hope you are well

 

If you read the case of Green and that of Heldon, you will see for yourself exactly how a lender, can, has and will

[bhall]

Well said WP...Well Said ; )

 

We know that the Deed is void.....we know that the lenders do not bother to get mortgage offers 'agreed'.....crikey...we are even learning that they don't bother with deeds of variation.....and even when Ben assures us that the Lender will execute a deed when a further advance is noted on the title.....welll.......even then they don't bother to......So all I can say is.....

 

What NOW Ben???

 

Apple

 

If you are referring to Marika's mortgage deed instead of jumping head first to reach your conclusion, you forgot to establish the facts first about the deed and the further advance first or establishing what actual documentation was held by the Land Registry.

 

You should really look at all the information first and the reach a conclusion. Instead in true Apple style you jumped to the conclusion that you want to reach first without asking questions to establish the facts.

 

As for what now ?

 

All we can do is wait until January and hope you are right (even if we know you are not) - Otherwise there are going to be a few people facing repossession proceedings and what could be substantial legal costs added to their mortgage. I hope then if it is not to late they then seek the advice of more knowledgable people such as Ell-en, Lea-th and the members of the site team.

 

Then we will see what you have to say for yourself, no doubt you will criticise the judgement say it is wrong etc etc etc. After all Apple is right, everything else just needs to be amended to match the way you interpret the law.

[bhall]

Please excuse any typo's in my posts this morning, I had to be as fast as I can, my battery is going flat and I left my charger at home.

 

Also I would like thank those that have clicked to increase my reputation points. Just noticed I now have three green indicators

 

Thank you.

Edited October 26, 2013 by bhall

[andrew1]

 

Let's not forget box 9 which confirms that it is a deed (mortgage deed) and only needs to be signed by the borrower unless the lender has applied to note an obligation to make a further advance.

 

I said earlier that I don't post on this thread, mainly because I have little to offer constructively to this debate, but this seems an appropriate moment to jump in and ask something as you mention Ben the above which may affect others on this thread.

 

I attach here what I believe is the Title Deed on what was my mortgage (recently paid off) but you will note number 3 on this document states:

 

"The mortgage is made for securing further advances",

 

but this document has only been signed by Mr & Mrs Andrew1 and a witness, not by the lender....is your quotation above suggesting this should have been signed by the lender in view of the mention of the Further Advance provision in No3 ?

 

 

 

Thanks

A1

Edited October 26, 2013 by andrew1

[Winged Piglet]

Hello WP

 

Long time no see, I hope you are well

 

If you read the case of Green and that of Heldon, you will see for yourself exactly how a lender, can, has and will

 

Ah but you also must remember, the Lender IS entering into obligations as he has used the Deed for his own end when he has failed to provide an underlying loan agreement to be signed by both parties. He has not entered into a loan agreement there is no underlying loan contract signed by him and the borrower. He uses the Deed itself to bind the obligations onto the Borrower and get the Borrower to agree to the Lenders Terms and Condtions by referral and purported acceptance in the Deed.However the terms and conditions are general they are not bespoke to each bororwer, there must be an actual loan contract where these terms are stated and agreed, hence the Mortgage Loan Agreement. But where is the agreement that a Lender can waive at the court to say the Borrower did agree to pay X amount at X rate each month. Where is his proof of breach? In order to be in breach, there has to be a contractual term or element of agreement or obligation not to perform. He says pay this amount at this rate every month, or else I shall evoke my right to posession of your home if you don't. The Deed itself does not allow this right does it. Where then lies the foundation of the agreement to pay the 'contractual' monthly payments? Where is the ability to assign or sell the rights to the Beneficial interest payments when the Lenders securitise? Where are the rights to claim costs against the Borrower when the Lender enters into possession? ALL of that should be contained in a contractual loan agreement. The Deed creates the charge that then secures these rights. It should not and does not in my opinion become the contract just because the Lender wishes it to be. This way of doing things is a fairly recent thing and is a way of working for many sub-prime Lenders. That in my humble opinion is fundamentally wrong. The Deed has then morphed into more than what is was designed and intended for. The Deed afterall secures the borrowing it is not the borrowing. If the borrowing has no foundation or basis in contract law i.e. no party has agreed the terms by formal signed agreement, then in using the Deed as a multi purpose instrument, then we are led back to the fact that in this instance, the Lender is to sign the Deed.

 

You also have to remember that EVERY case is different and case law is not a one fits all approach. Law changes and new case law is made and forged by argument and challenge.

[applecart]

It happened like this: they sent me an email saying "under the terms... blah blah blah... you have to pay... blah blah... do what we say... blah blah". Standard terms... So I said...

 

In order that I may respond appropriately to your notice to deduct money from the proceeds of the sale of my estate I request presentation of a document pursuant to the Land Registration Act 2002 section 91. Your clients form of charge was only signed as a deed by the borrower before being filed at HM land registry ref MDxxxx. It would appear that there is no bilateral aspect to any part of my "mortgage agreement" with your client who appears to have completely avoided legally committing to any part of the contract (offer and deed) but nonetheless seeks to enforce it's purported terms and conditions. I have provided relevant extracts of land registration law for ease of reference. Please can you either accept or reject that this legislation applies to your clients form of charge before issuing any further demands for upfront payments. I would like to draw your attention in particular to section (4)(b).

 

(1) This section applies to a document in electronic form where—

(a)the document purports to effect a disposition which falls within subsection (2), and

(b)the conditions in subsection (3) are met.

(2) A disposition falls within this subsection if it is—

(a) a disposition of a registered estate or charge,

(b) a disposition of an interest which is the subject of a notice in the register, or

© a disposition which triggers the requirement of registration,

which is of a kind specified by rules.

 

(3)The conditions referred to above are that—

(a)the document makes provision for the time and date when it takes effect,

(b)the document has the electronic signature of each person by whom it purports to be authenticated,

©each electronic signature is certified, and

(d)such other conditions as rules may provide are met.

 

(4)A document to which this section applies is to be regarded as—

(a) in writing, and

(b) signed by each individual, and sealed by each corporation, whose electronic signature it has.

 

(5) A document to which this section applies is to be regarded for the purposes of any enactment as a deed.

 

Please note that (4)(b) denotes a bilateral signature requirement ("and" - not "or") for the deed stated in (5) which you have correctly identified as a contract.

 

Yours sincerely,

 

UNRAM

 

Hi UNRAM

 

The content of your email to them appears to be bang on.......however.....

 

Tell me.... your case...will it be heard at the Tribunal BEFORE the sale of your property goes through? (you can postpone the completion date of the sale I believe if necessary)

 

I tell you why....they are not listening to you....they are under no order of any court or obligation to do so.....If the Sale goes ahead before they are hauled before the Tribunal....they will do as they have said......

 

It would be foolhardy of them to do so of course....but non the less.....they will take your money without 'blinking'....

 

You truly must try to hold off any sale of your property until you get a decision from the Tribunal.

 

Your case is next month isn't it?.......

 

Apple

[bhall]

Hello Andrew1

 

Your mortgage deed does not unfortunately say that the lender is obligated to make a further advance, it only says that it secures a further advance.

 

This enables the lender, if it were to provide you a further advance to what is called "tack" that loan onto this first charge. As a result if you were to apply for a secured loan with another lender, your first charge lender would receive notification.

 

The is now governed to s.49 of the Land Registration Act 2002.

 

My battery is literally going to go at any second, so I will respond in more detail once I get home.

[applecart]

Without wanting to cause any upset

 

The legislation you quoted states that it applies to a document in electronic form. As your mortgage deed has a MD and not an E-MD reference, the legislation quoted does not apply as your mortgage deed is not in electronic form.

 

Besides which 4b doesn't denote a bilateral signature, it is only regarded as signed by whoever electronic signature it has - if the lender does not have to sign it, his electronic signature won't be there.

 

Remember companies can grant deeds too

 

Sorry, I thought you would want to know

 

I think Ben is trying to be clever (again)..... Quite who he is trying to 'kid'.....I remain unsure??

 

Here he tells UNRAM.....ah, e-conveyancing does not apply to you...so, you cannot rely on section 91.......yours is an 'MD' number not a 'E-MD' number........

 

However....at #2503.... he wants to convince us all that:

 

Time has far gone past that this part of the debate was laid to rest - R.I.P debate about if a borrower can grant a legal mortgage, fair well to endless discussion about if 'grant a charge by deed expressed to be by way of legal mortgage' is a valid charging term and say hello to.....

 

The Land Registration (Electronic Conveyancing) Rules 2008

 

Ladies and Gentlemen, I give you Schedule 1(1)(j) Contents of an Electronic Charge

 

"(j)a statement to the effect that the Borrower (stating, if desired, whether with full or limited title guarantee) charges to the Lender the property referred to in sub-paragraph (a) by way of legal mortgage with payment of all money secured by the charge,"

 

Come on Ben....How early did you get up this morning mate?.......it may have escaped your notice but ALL the Deeds in these cases have 'MD' numbers....NOT 'E-MD' numbers.......

 

Trying to play crafty again are you????

 

The 'take=up' of E-conveyancing was and remains low.....practitioners have avoided it mate.......

 

Granted UNRAM has by mistake taken that it applies to him and his lender......but typically you jump on it as an opportunity to confuse and misguide everyone.....

 

You have a read of this document mate....get your head around e-conveyancing and where it is upto....understand what section 91 is all about ......and when you do.....come back with something tangible ..... something that is TRUTHFUL and APPLICABLE for a change....instead of using the LAW to meet your misguided objectives ok.......??

 

http://webcache.googleusercontent.com/search?q=cache:uZlOoJr_2wgJ:www.propertybar.org.uk/__data/assets/pdf_file/0006/76245/E-Conveyancing,_Dreams_and_Realities,_S_Kelway_19.11.09.pdf+&cd=11&hl=en&ct=clnk&gl=uk

 

Apple

[applecart]

Hello Andrew1

 

Your mortgage deed does not unfortunately say that the lender is obligated to make a further advance, it only says that it secures a further advance.

 

This enables the lender, if it were to provide you a further advance to what is called "tack" that loan onto this first charge. As a result if you were to apply for a secured loan with another lender, your first charge lender would receive notification.

 

The is now governed to s.49 of the Land Registration Act 2002.

 

My battery is literally going to go at any second, so I will respond in more detail once I get home.

 

How on earth you managed to get an additional green box to your name is beyond me......are you 'paying' for these yourself??......

 

Your play on words here is so misguiding....it is shocking!!!

 

Are you seriously intending that we should all assume that section 49 of the LRA means that the lender states on the deed: 'I am obligated to make a further advance'

 

When in fact....LRA 2002 section 49 (3) says this:

 

(3)The proprietor of a registered charge may also make a further advance on the security of the charge ranking in priority to a subsequent charge if—

(a)the advance is made in pursuance of an obligation, and

(b)at the time of the creation of the subsequent charge the obligation was entered in the register in accordance with rules.

 

So.....No Ben.....All Lenders....even as far back as 1995 (as shown on Marika41's deed) will use words that 'secure' a right to make further advances......

[/color]

 

Here is LRR 2003 section 108:

 

Obligations to make further advances

 

108. (1) The proprietor of a registered charge or a person applying to be so registered, who is under an obligation to make further advances on the security of that charge, may apply to the registrar for such obligation to be entered in the register for the purposes of section 49(3) of the Act.

 

(2) Except as provided in paragraph (3), the application must be made in Form CH2.

 

(3) Form CH2 need not be used if the application is contained in panel 7 of Form CH1, or in a charge received for registration where the form of that charge has been approved by the registrar.

 

(4) The registrar must make an entry in the register in such terms as he considers appropriate to give effect to an application under this rule.

 

Andrew1's deed expresses an obligation by the lender of his intent to secure the right to make 'further advances'....just like everyone else's deed does Ben.

 

HMLR were by LAW required to enter the notice on each and every single borrowers title Ben.......they have not done so........this is an issue......for they were statutory obliged to do so!!

 

Whoever you are paying to increase your 'green box'......should look into what you say thoroughly before they do so.....because yet again....you are WRONG.....

 

All I can say is thank goodness your battery is low....it shows too...... get it re-charged and post the truth......and stop trying to misguide established members of the CaG ; )

 

Apple

[IS IT ME?]

Well Well,

again we see that Ben is trying to misguide people again and I think I may be wrong and hope that I am with the help of some of the team on this site.

I have asked and may be I have missed it but asked why the site is so worried about this thread some members shall we say were looking at closing it but I feel the response that they had has shown that there are many people who are taking their cases to the chamber, I also not that I never had a reply to that question or any one say for sure that no one has put pressure on the site.

 

As for the long and I mean long post and the high number of posts there is only ONE person to blame for that and its BEN no one else,

 

I now come onto some thing I should put on the other thread but will still ask here, we have been told that we should all use the tried and tested routes and these will stop and do every thing WELL in the Willesden County Court yesterday they did not a lender put costs and arrears fees on a borrowers mortgage which pushed the payments up so much there was no way for them to have the period of the mortgage to repay it and that the monthly repayments were too much. If the arrears fees and costs were not added they could have done it just.

So they do not always work.

It is late in the day to do some thing but it is in hand, as this family needs there home.

[IS IT ME?]

I for one would like to know how Bens got all those greens!!! lol

[applecart]

Well Well,

again we see that Ben is trying to misguide people again and I think I may be wrong and hope that I am with the help of some of the team on this site.

I have asked and may be I have missed it but asked why the site is so worried about this thread some members shall we say were looking at closing it but I feel the response that they had has shown that there are many people who are taking their cases to the chamber, I also not that I never had a reply to that question or any one say for sure that no one has put pressure on the site.

 

As for the long and I mean long post and the high number of posts there is only ONE person to blame for that and its BEN no one else,

 

I now come onto some thing I should put on the other thread but will still ask here, we have been told that we should all use the tried and tested routes and these will stop and do every thing WELL in the Willesden County Court yesterday they did not a lender put costs and arrears fees on a borrowers mortgage which pushed the payments up so much there was no way for them to have the period of the mortgage to repay it and that the monthly repayments were too much. If the arrears fees and costs were not added they could have done it just.

So they do not always work.

It is late in the day to do some thing but it is in hand, as this family needs there home.

 

I know.....he is getting rather BOLD.....to think...in one post he says ....E-MD apply (in the misguided belief that it would and does and no doubt 'suited' his argument)..... then directly afterwards.....tells UNRAM oh don't apply to you, you've got an 'MD' Number'...Even though....IF he had been paying any attention to this thread..... he would know that all the Deeds have MD numbers..........................Shocking behaviour I tell you.....shocking!!

 

And then....he manages to get as many green boxes as ME.......aaaahhhhhh!!!

 

Please reduce my green boxes immediately...Because if Ben green box count is increasing off the back of his misguiding posts....it may be that 'viewers' may mistakenly believe that the more green boxes a CaGGer has ...... the more you are likely to be 'misguided' by that Cagger....... I'd rather not be mistakenly party to that ...Thanks

 

Apple

[ims21]

Marika.

 

One of your earlier posts has given information about duress etc and some members have expressed their concern about your case and the route you appear to be following.

 

It appears that you may be heading down the route of only relying on one point in your defence, that being the idea offered in this thread.

 

It is felt that your defence should include all points which you wish to argue and not just rely on one single aspect and that would include the points about duress (together with the proof which you say you have) and also the monetary side regarding an offer of repayment).

 

Given the seriousness of the duress point, it is worth stating again that you should be seeking full and proper legal advice on your situation.

 

Whether you choose to do this is, of course, up to you but it may serve you well to step back a bit and re-evaluate your situation and how you are going to present your case to the court.

 

I have sent you a PM alerting you to this post in case you miss it.

[IS IT ME?]

ism21,

Did you answer my post with regard to why the site is taking a view into closing this thread?

[ims21]

ism21,

Did you answer my post with regard to why the site is taking a view into closing this thread?

 

You need to read the posts I have made.

[IS IT ME?]

ims21,

Thank you I have read back to 2449 to now and can really find an answer to the question ?

what was asked

 

Tangible evidence that the suggestions you're putting up actually work. I really cannot put it more simply than that. We have scores and scores of Caggers that have looked at this thread - and some that may blindly follow the information that you're placing within it. I think it's fair and reasonable to ask that you substantiate your claims, don't you?

you were given a good reply which I think answered your question.

 

I have also asked if the same point of the long and quiet time wasting posts of some one else has been addressed, I for one have done a count and can clearly see why these have gone up unnecessary and as got people to the property chamber which no one else on CAG has ever thought of before.

I do believe that apple has opened up a can of worms here and the CAG was OK with it but now some thing has changed and I would like to know why as you say an open forum?

[ims21]

Posts #2454 and #2461.

 

I think the question is " where did you get the idea that we were thinking of closing the thread"?

[applecart]

Ah but you also must remember, the Lender IS entering into obligations as he has used the Deed for his own end when he has failed to provide an underlying loan agreement to be signed by both parties. He has not entered into a loan agreement there is no underlying loan contract signed by him and the borrower. He uses the Deed itself to bind the obligations onto the Borrower and get the Borrower to agree to the Lenders Terms and Condtions by referral and purported acceptance in the Deed.However the terms and conditions are general they are not bespoke to each bororwer, there must be an actual loan contract where these terms are stated and agreed, hence the Mortgage Loan Agreement. But where is the agreement that a Lender can waive at the court to say the Borrower did agree to pay X amount at X rate each month. Where is his proof of breach? In order to be in breach, there has to be a contractual term or element of agreement or obligation not to perform. He says pay this amount at this rate every month, or else I shall evoke my right to posession of your home if you don't. The Deed itself does not allow this right does it. Where then lies the foundation of the agreement to pay the 'contractual' monthly payments? Where is the ability to assign or sell the rights to the Beneficial interest payments when the Lenders securitise? Where are the rights to claim costs against the Borrower when the Lender enters into possession? ALL of that should be contained in a contractual loan agreement. The Deed creates the charge that then secures these rights. It should not and does not in my opinion become the contract just because the Lender wishes it to be. This way of doing things is a fairly recent thing and is a way of working for many sub-prime Lenders. That in my humble opinion is fundamentally wrong. The Deed has then morphed into more than what is was designed and intended for. The Deed afterall secures the borrowing it is not the borrowing. If the borrowing has no foundation or basis in contract law i.e. no party has agreed the terms by formal signed agreement, then in using the Deed as a multi purpose instrument, then we are led back to the fact that in this instance, the Lender is to sign the Deed.

 

You also have to remember that EVERY case is different and case law is not a one fits all approach. Law changes and new case law is made and forged by argument and challenge.

 

 

You have to remember that Ben....quite conveniently ignores this:

 

In this document that you posted up recently Ben….see Page 95 - 11.13.....

 

http://lawcommission.justice.gov.uk/...nsultation.pdf

 

It speaks of the”face value” requirement…..see for yourself what the issue is….see for yourself that due to HMLR practice of 'approved forms of charge' we as Borrowers are finding that Lenders are passing off that they have a VALID DEED…. When in TRUTH…they DO NOT!

 

“The “face-value” requirement

 

11.13 There appear to be differing views in practice as to what is sufficient to satisfy this requirement, which was created by section 1(2)(a) of the Law of Property (Miscellaneous Provisions) Act 1989, and is reflected by sections 36A(5) and (6) of the Companies Act 1985. The position where a document is sealed, but there is no other indication that it was intended to be a deed, has been considered above in the context of “contracts under seal”. Moreover, the Land Registry’s stated practice is that a 17 document which describes itself as being a type of instrument which, by its nature, is required by law to be by deed (for example a document commencing “This Conveyance”) is sufficient for the purpose of section 1(2)(a). This may be justified 18 by the words “(whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise)” (our emphasis) in section 1(2)(a), and also, perhaps, by section 57 of the Law of Property Act 1925. Nonetheless, there are difficulties. 19 If correct, this practice might be considered tantamount to abolishing this particular formality altogether. It is also difficult to reconcile this approach with the principle 20 that a purported lease which fails to meet the necessary formalities may nonetheless take effect as an equitable lease.”

 

The footnote for “20” says this:

 

We have previously rejected the suggestion that the mere use of words like “lease” or “mortgage” 20 would suffice. “It seems essential to avoid a situation where a document is held to be a deed simply because it was used in a transaction where a deed is required. This would amount to abolishing formalities for deeds altogether”: Law Com No 93, para 8.3(ii).

 

What now Ben??......do you still see a 'F' in my interpretation of the LAW as relied upon on the findings of the LAW Commission.... or do you want us all to see it from Ben and Co....student manuals point of view....that tactically taps in and out of the LAW as and when Ben and Co find it convenient to do so????

 

Apple

 

Apple

[bhall]

Lol why ask me a question when you provide the answer to prove yourself wrong.

 

The mortgage deed passes / meets the "face-value" requirement for a deed because it doesn't just says it is a mortgage or it says it is a charge.

 

It meets the face-value requirement because it says it is signed as a deed. It is very clear so that the person signing is under no doubt that it is a deed.

 

 

Lol you are going to have to try harder than that...

Edited October 26, 2013 by bhall