Repossession questioned by deeds not being signed

[applecart]

I am sorry if you consider posts such as the below to be a waste.

 

Think of it as an opportunity to consider a potential argument before the hearing is heard.

 

 

 

 

Forewarned is forearmed.

 

Thanks Ben,

 

Regrettably, I still fail to see where you are going with this? and I'm unsure who you are looking to 'forwarn' or 'forearm'?

 

Apple

Edited November 4, 2013 by applecart

[applecart]

I am not asking you to reply to me.

 

I was suggesting given that UNRAM has only a few more days, that you help him, as you have 'great news' to stop the lenders dead in their tracks before it gets to the property chamber.

 

The information that you have might also help with his argument with his lender about the costs that they have told him, he will have to pay.

 

Hi Ben

 

There is the finding that when applications are sent to the Lenders address as shown on the 'approved form of charge' held at HMLR.......the lender is no longer trading from that address....

 

Shocking I know....but that could be just one reason why any application will not go forward don't you think?

 

The Lender cannot respond to an application if he is not there to receive it????

 

Apple

[applecart]

Hi apple,

 

Thanks for the info, my understanding going off talks with LR, is that the borrower (me) remains as the proprietor of the title to the registered estate at all times. The lender remains the proprietor of the legal charge at all times.

 

If there was to be a subsequent lender to be entered onto the register, then this could only be done so with the original lenders permission. The original lender would always be the proprietor (1st charge) in the charges section of the register. If the original lender made a further advance then this would not be entered onto the register because the Mortgage Deed (Legal Charge) has already stated that "it secures further advances".

 

There is a lot of helpful content throughout the thread that's for sure, but there is also a lot of content that leads to confusion.

 

For example, the thread title and theme revolves around the signing of the deed, but there seems to be a great deal of emphasis on the execution of the deed. So, what are we looking for, signature by both parties and duly executed to be valid, against a deed without the lenders signature and therefore not able to be legally executed or, just the deed not being executed in the prescribed manner.

 

The RRO 2005 and LRR 2003, have no bearing to my own personal situation.

 

MUTT1

 

Hi Mutti

 

The thread is to do with the Lenders fiduciary duty to execute the deed....we started off looking at Is It Me's friends position.....other situations have since come to the fore......non the less..the thread details the statute that consumers can rely upon to assist them...

 

Even if you remove reference to the RRO.....you still have LPA 1925 section 74 (1) and (5)....and the Companies Acts (1985) and the Lenders own Articles of Association .....in fact ....in your case....you also have the LRA 1925 section 25.....that section makes it more than clear...if the lender has secured any more than a charge to secure money with or without interest on registered land....then along with a finding that the deed has not been executed by the lender....it is Void.....

 

For later 'mortgages'.....the issue was the 1989 Act.....the way it is drawn up....it said things like 'the person making it'......this is not to say that it was never ever intended that a deed in relation to land should not be signed by the Borrower and executed by the Lender.......the issue was the 'certain activities' (securitisation) that derived from it as it appears on its face.......the RRO addresses the issue and removes all reference to the 'person making it'......this is why those with later dealings with lenders have to make reference to the RRO to avoid falling into the trap that Lenders, and the CML (appear) to have 'sold' to the market as a whole.....

 

Apple

[andrew1]

For mortgage deeds executed by a borrower after LRA 2002 -

 

http://www.legislation.gov.uk/ukpga/2002/9/section/49

 

49 Tacking and further advances

 

(1)The proprietor of a registered charge may make a further advance on the security of the charge ranking in priority to a subsequent charge if he has not received from the subsequent chargee notice of the creation of the subsequent charge.

(2)Notice given for the purposes of subsection (1) shall be treated as received at the time when, in accordance with rules, it ought to have been received.

(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.

(4)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 parties to the prior charge have agreed a maximum amount for which the charge is security, and

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

(5)Rules may—

(a)disapply subsection (4) in relation to charges of a description specified in the rules, or

(b)provide for the application of that subsection to be subject, in the case of charges of a description so specified, to compliance with such conditions as may be so specified.

(6)Except as provided by this section, tacking in relation to a charge over registered land is only possible with the agreement of the subsequent chargee.

 

49(3)(a) - if a mortgage deed states that there is an obligation to provide a further advance.

 

If a mortgage deed only states that it secures further advances, that is not an obligation.

 

Thank you Ben for this and the preceding post - I am pretty well tuned in now to the meaning of the clause re Further Advances on my title deed, thank you and apple for turning the light on for me..

 

My Mtg was 1989 so precedes the 2002 LRA, but the Deed is not signed by the lender. It has a LR stamp, but no signature.

 

As I redeemed my mtg in January this year - in full, I no longer have a need to defend myself against any litigation, all be it, I have previously - so unlike many on this thread my channel for remedies comes from a completely different place, but remedies I am after from this bank as it has not been a pleasant journey since 1989 and they are being somewhat 'unhelpful' thus far in my enquiries over another issue I have with them.

 

Any thoughts on how a remedy might be sought on this Deed issue now?

 

A1

[bhall]

Thank you Ben for this and the preceding post - I am pretty well tuned in now to the meaning of the clause re Further Advances on my title deed, thank you and apple for turning the light on for me..

 

My Mtg was 1989 so precedes the 2002 LRA, but the Deed is not signed by the lender. It has a LR stamp, but no signature.

 

As I redeemed my mtg in January this year - in full, I no longer have a need to defend myself against any litigation, all be it, I have previously - so unlike many on this thread my channel for remedies comes from a completely different place, but remedies I am after from this bank as it has not been a pleasant journey since 1989 and they are being somewhat 'unhelpful' thus far in my enquiries over another issue I have with them.

 

Any thoughts on how a remedy might be sought on this Deed issue now?

 

A1

 

I am glad I could be of some help.

 

I thought I would direct you to the information, so that you could read it for yourself. That way you could decide for yourself without any biased interpretations either way.

 

In terms of the deed issue, if you mean about the lender not signing - As the mortgage deed is a deed and not a contract, I don't see that there is an issue. Arguments about mortgage deeds not being signed by the lender are nothing new. They have been around for many years. They have not worked in the past and I honestly don't see them working now.

 

As I showed in my post about the RRO 2005, it did not amend the LPA(MP) 1989 in the way it has been portrayed in this thread. If the law required a mortgage deed to be signed by both parties, it would say so as the same act says so clearly for contracts and the CCA 1974 says so clearly for Consumer Credit agreements - section 1 of the LPA(MP) 1989 as amended just does not say that a deed has to be signed by both parties.

 

If you read through this thread you will see that there is not a single post quoting directly from section 1 of the LPA(MP) 1989 that actually states that the deed must be signed by both parties. All that has been posted has been interpretations telling people what things "really mean".

 

Delivery was and still is, a formality which is part of the execution of a deed by an individual. The act even says that in plain English. There is no need for anyone to interpret anything. The mistake made by this thread is that it continues to confuse what a company must do when it grants a deed with what an individual must do when he/she grants a deed .

 

Whenever someone resorts to interpreting something that is written in plain English, it sets off alarm bells for me. If someone has to interpret something written in plain English, they only have to when it doesn't actually say what they want it to say.

 

The Property Chamber has been very clear in its responses to Is It Me? and to UNRAM. To Is It Me? The property chamber has already stated that mortgage deeds do not generally as a matter of law need to be signed by the lender - This thread asserts that every single mortgage deed has to be signed by the lender without exception. As per any issue that does not support the assertions of this thread it is swept under the carpet.

 

The Property Chamber has told URAM - infact given him a list of the things that it had been requested to do that it can't do.

 

Then there is the argument that since the LRA 2002 a borrower is unable to grant a legal mortgage. One of the intentions of the LRA 2002 was to make a charge by deed expressed to be by way of legal mortgage, the only type of legal mortgage that a borrower could grant ( registered land). A mortgage by demise / subdemise has been abolished a legal mortgage by charge is as valid now as it was in 1925.

 

It would be great if the assertions of this thread were correct, as they are based on interpretations instead of what things actually say, they won't result in all mortgage deeds being declared void. The assertions of this thread will only result in costs being incurred that will increase the amount owed. In turn that will result in increased monthly payments which if someone was struggling to meet before, could push them over the edge and to the point that the borrower has no chance of being able to pay.

 

This is only going to end one way and when it does I won't take any pleasure in it or be happy that I was right, my heart will go out to those that have been left in an even worse situation. I don't see anyone offering to contribute towards the costs which could be several thousands pounds per borrower that could be incurred as a direct result of following the assertions made in this thread.

 

The reason that I took so long to reply to you was because I was looking at your situation from a different angle, I was looking at CCA part and part arguments and if the CCA could be made to apply to your further advance in someway - restricted use v unrestricted use etc. Nothing I have found has supported that possibility. However, I will keep looking just in case. There have been a few related cases but nothing successful thus far. I will still keep looking into it and see if it can lead anywhere.

 

Ben

Edited November 4, 2013 by bhall
Typo

[applecart]

Thank you Ben for this and the preceding post - I am pretty well tuned in now to the meaning of the clause re Further Advances on my title deed, thank you and apple for turning the light on for me..

 

My Mtg was 1989 so precedes the 2002 LRA, but the Deed is not signed by the lender. It has a LR stamp, but no signature.

 

As I redeemed my mtg in January this year - in full, I no longer have a need to defend myself against any litigation, all be it, I have previously - so unlike many on this thread my channel for remedies comes from a completely different place, but remedies I am after from this bank as it has not been a pleasant journey since 1989 and they are being somewhat 'unhelpful' thus far in my enquiries over another issue I have with them.

 

Any thoughts on how a remedy might be sought on this Deed issue now?

 

A1

 

Hi Andrew1

 

I think in your case; if the deed has a LR stamp on it...it could be said that it is as ‘official’ as you can get.....back in 1989.....(remembering that HMLR deleted a lot of the whole forms of deeds from their records to make way for ‘electronic’ registration)...but......

 

There is every reason for you or anyone else who finds themselves in the following positions to make enquiry via the Property Chamber if:

 

1) You paid off the ‘mortgage’/loan and remain in your home

2) You sold your home and no longer remain in the property

3) You redeemed your ‘mortgage’ by way of taking a loan with another lender

4) Your lender took possession of your property and sold it on the open market

5) You have a suspended possession order on your property and remain in the property

6) You have no arrears, no suspended possession order and you remain in your home

7) You have Buy to Let loans/’mortgages’ and the property is rented out and is still in your ownership

8) You had Buy to Let loans/’mortgages’ and there is a SPO

9) You had Buy to Let loans/’mortgages’ and the lender has taken possession and sold them/it on the open market

10) Your lender has taken possession of any property and has not yet sold it on

 

There may be other situations that I have not mentioned above, but let’s take for granted that the above represents the main scenerios.....We have been dealing with cases that fit No ‘5’ predominantly in this thread...

 

We rely that HMLR ideally will be able to send you an ‘historical’ copy of your deed. The historical copy is necessary – because the Lender will have ‘executed’ the deed upon safe receipt of all the monies due under the ‘mortgage’....

 

In situations ‘1’, ‘2’, ‘3’, ‘4’, ‘9’ - The historical copy is what you need...so, when you ask for a copy - on the form you should ask for the deed that was used at inception.....(it might be an idea to also get a copy of the deed that will have been signed when the ‘mortgage’ was redeemed in full as well – that way you will be able to see the difference between the two).

 

If for any reason; HMLR are unable to give you a copy of the ‘historical’ copy...you will have to rely on the copy ‘certified as a true copy’...that is sent to all borrowers at the completion of the charge being registered on the title at inception.

 

You need to be sure:

 

1) That your property was ‘registered’ and not a ‘first registration’ (e.g: not a new build that you have never gone on to loan monies against since)

 

First Registration and ‘Mortgages’ are lawfully registered at HMLR on new builds or land that is being registered with HMLR for the first time (remember those ‘FR1’ forms – they create the ‘first legal mortgage’ or ‘first legal charges’ that Lenders speak of)

 

If...as you may already suspect...the official copy/copies come back to confirm your suspicions....then you have every right to make an application to the Property Chamber.....the lender will no doubt still be trading...even if under another name or a different ‘authorised representative’ is handling their business.

 

Your application would be made in more or less the same way as any other....you would need to rely on the legislation that applied in 1989.....so that’s the LRA 1925, LPA 1925, Companies Act 1985, etc...

 

Rule 40 of the First Tier Tribunal (Property Chamber) Rules 2013 would still most definitely come into play too.

 

Making the application is free.....gather your info and get the ball rolling..... : )

 

Hope this helps?

 

Apple

[applecart]

Can I just say (having seen Ben's post)....

 

A keen eye spots the difference between 'registered' and 'un-registered land' and the application of the Law in relation to each type of transaction;

 

There is no mention of the LRA 1925 section 25....and no explanation offered by him as yet for his assertive 'cautions';

 

There is no definitive explanation provided to suggest that LPMPA section 1 (2) retained the 'person making it' within its text either...

 

and so on and so on...

 

Applications to the Chamber as I have already pointed out are free.....

 

There is no need for any Lender, CML, HMLR or anyone else to worry themselves about Borrowers making an application.......if they are right and we are wrong.....then, all will be well...

 

The issue is....we are not wrong.....the issue is.....Lenders, CML and HMLR are expressing far too much concern over an issue that for all intent and purpose they should not have to worry about.....they protest far too much.....notably.....there is no protest from any of this group when Shelter announced this morning on the news that there are more than 82,000 children living in boarding houses up and down the country

 

Apple

[MUTT1]

Hi apple,

 

Many thanks for the info.

 

mutt1

[andrew1]

Yes it does apple, thanks, I'm a No2..sold and redeemed. The house was a new build on what was previously a field, but I first had a mtg with another lender St Margaret's Trust for about 8 months until I was told they were far too expensive and I changed to a High St lender in '89.

 

Not too sure how that affects the situation re the info you quote, but will start thinking it through.

 

Ta

 

A1

[applecart]

Yes it does apple, thanks, I'm a No2..sold and redeemed. The house was a new build on what was previously a field, but I first had a mtg with another lender St Margaret's Trust for about 8 months until I was told they were far too expensive and I changed to a High St lender in '89.

 

Not too sure how that affects the situation re the info you quote, but will start thinking it through.

 

Ta

 

A1

 

Hi Andrew1,

 

The second lender will have loaned against 'registered' land then and any subsequent lenders will have done so ; )

 

Apple

[applecart]

Hi apple,

 

Many thanks for the info.

 

mutt1

 

No problem Mutt1.

 

If it helps...then that's all good : )

 

Apple

[IS IT ME?]

Your never get an answer LOL

[steampowered]

Applications to the Chamber as I have already pointed out are free.....

 

I want to add an important caveat to this.

 

If the Chamber finds you acted unreasonably in bringing the application, it is likely to order that you pay the Respondent's legal costs. For a fully contested hearing these could easily extend be thousands of pounds.

 

Anyone who wants to make an application should do so only for good reason and after satisfying themselves as to the merits of the arguments they wish to raise (ideally after taking legal advice).

[steampowered]

There is every reason for you or anyone else who finds themselves in the following positions to make enquiry via the Property Chamber if:

 

1) You paid off the ‘mortgage’/loan and remain in your home

2) You sold your home and no longer remain in the property

3) You redeemed your ‘mortgage’ by way of taking a loan with another lender

4) Your lender took possession of your property and sold it on the open market

5) You have a suspended possession order on your property and remain in the property

6) You have no arrears, no suspended possession order and you remain in your home

7) You have Buy to Let loans/’mortgages’ and the property is rented out and is still in your ownership

8) You had Buy to Let loans/’mortgages’ and there is a SPO

9) You had Buy to Let loans/’mortgages’ and the lender has taken possession and sold them/it on the open market

10) Your lender has taken possession of any property and has not yet sold it on

 

Applecart, why would a borrower make an application to the chamber in cases 1-4 and 6-8?

 

In these cases the security is no longer relevant. Debt is advanced under the Loan Agreement, which is a completely separate document to the Deed. Loan Agreements do not need to satisfy the same formalities as Deeds.

 

If the applications you are proposing in this topic are successful, that would mean the creditor becomes an unsecured lender without the benefit of a charge over the property, not that the debt doesn't exist (and of course the lender could ultimately obtain a CCJ for the debt against the borrower and then apply for a charging order over the property, although an unsecured lender would no longer have priority over other creditors).

[MUTT1]

Hi steampowered,

 

When you talk of loan agreements, could you specify exactly what document/s would be considered to be the actual agreement?

 

Just for your information, I have asked my current lender and, previous lenders, what document/s do they/have relied upon as being a legal contract/agreement that gives/gave them a legal right to impose CMI, Arrears Charges, Legal Fees, ERC, etc, on me as a borrower.

 

I have never signed any agreement document as such but, have signed various other documents i.e. Application Form, Re-Mortgage Declaration, Mortgage Confirmation Form and a host of other forms with different headings but none purport to be the actual agreement or contract.

 

The above forms were signed by me and, a witness, but never the lender. I would also suggest that for any agreement or contract to exist between borrower and lender, then whatever terms and conditions the lender relies upon to enforce the agreement/contract must relate directly to the agreement form as signed by me. Signed by me that I accept these terms and conditions. And, surely, if a contract/agreement is to exist between both parties, then a document with signatures from both parties should/would be the basis for such an agreement.

 

I have no documents at all that have been signed by the lender/s. Also, the only document that relates to specific conditions in relation to "the mortgage" is the Mortgage Deed, again, signed only by me and a witness.

 

It is interesting that not one of my numerous requests to previous and present lenders to specify exactly what document is the one relied upon to be the legal agreement between me and them.

 

Perhaps you could comment on this?

 

MUTT1

[applecart]

Applecart, why would a borrower make an application to the chamber in cases 1-4 and 6-8?

 

All and any sale of any property in the UK MUST have been secured by means of a Valid deed...the 'approved form of charge' is NOT a DEED...there must have been an actual 'creation of an 'interest' as a means of 'security'.......the 'approved form of charge' does not in itself 'create' a 'security' when the land is REGISTERED.

 

In these cases the security is no longer relevant. Debt is advanced under the Loan Agreement, which is a completely separate document to the Deed. Loan Agreements do not need to satisfy the same formalities as Deeds.

 

I hear you, however, this does not mean that the agreement is valid......remember; The Loan Agreement must first meet the provisions as set out in SECTION 2 of the LPMPA 1989......no Cagger as yet as reported that they have sight of such an agreement ......so, it is unlikely that the Lender can rely on 'specific performance'.....we have to remember section 40 LPA 1925 was abolished as I recall in relation to 'part performance'...so, even if the 'agreement' has been signed by the Borrower alone...this will not assist the lender as far as I can see......

 

If the applications you are proposing in this topic are successful, that would mean the creditor becomes an unsecured lender without the benefit of a charge over the property, not that the debt doesn't exist (and of course the lender could ultimately obtain a CCJ for the debt against the borrower and then apply for a charging order over the property, although an unsecured lender would no longer have priority over other creditors).

 

That would be an awful situation for any Lender to find themselves in....However, I do feel it would be rather unfair...if not a blatant circumvention of the Law ..... to allow a lender to benefit from an unexecuted deed...or indeed an unexecuted agreement; when the Laws of property make no provision for such scenarios......after all; it was the lenders fiduciary duty to get and keep its paperwork in order.....

 

Getting a 'charge over the property'?.....ummmm???.......I'm not sure how that would work......would that not be tantamount to me saying to you.....you owe me money...I have NO Valid proof.....but allow me to charge the property to secure the money I Say You Owe Me??.... I think you'll find in the 'lamb' case; Judge Butler made reference to the fact that there is a need to avoid any and anyone coming a long with a piece of paper and waving it in front of a judge...saying....this piece of paper is my right to seek a claim to the property....fact was; if it is not lawfully drawn up....does not meet the laws of the land in relation to property....then it remains....'a piece of paper'.....don't you think??

 

Who's to say..... we will have to wait and see; but I cannot see that in accepting so many applications that the Property Chamber will look to secure a 'piece of paper' as being a means for any lender to circumvent the law of the UK......unless of course you can see how it can be done.....I do despair.... I just can't see it to be honest....I just can't...sorry : (

 

Having said that we are talking 00000's of £'s ....... and I do understand the ramifications...(of both parties) ..... but....what to do??.......You can only rely that the Law will protect

 

Apple

[applecart]

I want to add an important caveat to this.

 

If the Chamber finds you acted unreasonably in bringing the application, it is likely to order that you pay the Respondent's legal costs. For a fully contested hearing these could easily extend be thousands of pounds.

 

Anyone who wants to make an application should do so only for good reason and after satisfying themselves as to the merits of the arguments they wish to raise (ideally after taking legal advice).

 

I'm totally understanding this Steampowered....

 

As you know, the hope is that all applications are being made for good reason.....but I agree; If an applicant makes an application and is not sure or does not understand the 'merit' of the argument (grounds) then they may come unstuck at a hearing.....

 

Hopefully the Chamber will appreciate that LiP's in the main are not represented...so, nerves, sweaty hands, spluttering, confusion, will all be party to the individuals before them.....hopefully, the Chamber will take on board the overriding objective......it would be unfair to treat a LiP adversely.....just because he or she does not 'articulate' to the level of a solicitor or barrister.....there needs to be some leeway, I would have thought?

 

Apple

[steampowered]

Hi steampowered,

 

When you talk of loan agreements, could you specify exactly what document/s would be considered to be the actual agreement?

 

With secured loans, the basic concept is that you have a loan agreement setting out the terms of the debt.

 

You then have a separate document (such as a Deed of Charge over land, a pledge over shares, an assignment of receivables etc.) which secures the debt, and gives the lender the right to sell a piece of the debtor's property if the debt is not repaid.

 

I'm not an expert in mortgages, but I imagine your contract is the Application Form. Presumably the Application Form will contain legal terms which you accepted by signing it. You then accepted the terms of the lender's offer once again when you borrowed the money. You can't borrow money on the terms offered to you, and then claim that you didn't accept the terms.

 

With simple contracts such as loan agreements, the basic legal position is that you do not need a signature. Contracts can be formed orally and they be formed by conduct. There is no need for the lender to sign.

 

The debate we are having in this thread about Deeds is a bit different, since there are formalities which must be complied with for Deeds which do not apply to loans.

 

Whether the lender can add charges is a separate issue. There are many other threads on CAG about this and create your own if you want help with these. These may or may not be authorised by the contract terms which you accepted, and there are also other issues such as the regulatory aspects and the general law against penalty charges to consider.

[applecart]

With secured loans, the basic concept is that you have a loan agreement setting out the terms of the debt.

 

You then have a separate document (such as a Deed of Charge over land, a pledge over shares, an assignment of receivables etc.) which secures the debt, and gives the lender the right to sell a piece of the debtor's property if the debt is not repaid.

 

I'm not an expert in mortgages, but I imagine your contract is the Application Form. Presumably the Application Form will contain legal terms which you accepted by signing it. You then accepted the terms of the lender's offer once again when you borrowed the money. You can't borrow money on the terms offered to you, and then claim that you didn't accept the terms.

 

With simple contracts such as loan agreements, the basic legal position is that you do not need a signature. Contracts can be formed orally and they be formed by conduct. There is no need for the lender to sign.

 

The debate we are having in this thread about Deeds is a bit different, since there are formalities which must be complied with for Deeds which do not apply to loans.

 

Whether the lender can add charges is a separate issue. There are many other threads on CAG about this and create your own if you want help with these. These may or may not be authorised by the contract terms which you accepted, and there are also other issues such as the regulatory aspects and the general law against penalty charges to consider.

 

Hi Steapowered

 

I think this is the reason that the statute of frauds applies to agreements to do with land transactions and not to agreements under the CCA.

 

I agree there are 'verbal contracts'....but I don't think this is what we are talking about here......these are land transactions.....can't imagine our government wants a company to set up in the UK and whip away all the land of the country merely on either a verbal or unilateral obligation unwittingly taken as relied on the 'ignorance of any consumer?

 

Apple

[steampowered]

All and any sale of any property in the UK MUST have been secured by means of a Valid deed...the 'approved form of charge' is NOT a DEED...there must have been an actual 'creation of an 'interest' as a means of 'security'.......the 'approved form of charge' does not in itself 'create' a 'security' when the land is REGISTERED.

 

Why is this relevant when the borrower has already sold their property and the Deed no longer appears on the register?

 

I hear you, however, this does not mean that the agreement is valid......remember; The Loan Agreement must first meet the provisions as set out in SECTION 2 of the LPMPA 1989......no Cagger as yet as reported that they have sight of such an agreement ......so, it is unlikely that the Lender can rely on 'specific performance'.....we have to remember section 40 LPA 1925 was abolished as I recall in relation to 'part performance'...so, even if the 'agreement' has been signed by the Borrower alone...this will not assist the lender as far as I can see......

 

I don't see why s2 LPMPA 1989 is relevant to the loan element of a mortgage contract. This section says a contract for the sale or disposition of an interest in land must be in writing. But a loan of money is not the sale or disposition of an interest in land ... even if the Deed of Charge falls away you still have a loan agreement.

 

That would be an awful situation for any Lender to find themselves in....However, I do feel it would be rather unfair...if not a blatant circumvention of the Law ..... to allow a lender to benefit from an unexecuted deed...or indeed an unexecuted agreement; when the Laws of property make no provision for such scenarios......after all; it was the lenders fiduciary duty to get and keep its paperwork in order.....

 

Borrower/lender is not a recognised category of fiduciary relationship. Lenders do not owe fiduciary duties to borrowers. They do, however, owe a contractual duty of care and certain regulatory duties.

 

I am not intending to talk about property law here. I am talking about contract law. Specifically, the loan agreement under which the borrower agrees to repay money advanced by the lender. Even if the Deed/mortgage/charge falls away because it did not meet the proper formalities for a deed, the underlying loan is still there.

 

Getting a 'charge over the property'?.....ummmm???.. .....I'm not sure how that would work......would that not be tantamount to me saying to you.....you owe me money...I have NO Valid proof.....but allow me to charge the property to secure the money I Say You Owe Me??.... I think you'll find in the 'lamb' case; Judge Butler made reference to the fact that there is a need to avoid any and anyone coming a long with a piece of paper and waving it in front of a judge...saying....this piece of paper is my right to seek a claim to the property....fact was; if it is not lawfully drawn up....does not meet the laws of the land in relation to property....then it remains....'a piece of paper'.....don't you think??

 

Yes applecart that is basically what it does. Charging orders are a recognised type of enforcement which can be used for any type of debt. Essentially the court has the power to charge people's property if a court judgment has not been paid. The only piece of paper a lender would need is an unpaid court order. Refer to. http://www.legislation.gov.uk/ukpga/1979/53/section/1.

 

There are a number of threads on CAG about credit card companies and the like obtaining a court order for repayment of a debt, and then seeking a charging order over the debtor's property. Once a charging order has been obtained the lender can then seek an order for sale.

 

Admittedly this is a much more difficult and lengthy process for the lender than obtaining a possession order under a mortgage. But it would provide an important route of attack for any lender which found that its security is invalid for whatever reason, and means even if your application succeeds the debtor cannot assume that he is home and dry, especially if there is equity in the property.

 

Who's to say..... we will have to wait and see; but I cannot see that in accepting so many applications that the Property Chamber will look to secure a 'piece of paper' as being a means for any lender to circumvent the law of the UK......unless of course you can see how it can be done.....I do despair.... I just can't see it to be honest....I just can't...sorry : (

 

Having said that we are talking 00000's of £'s ....... and I do understand the ramifications...(of both parties) ..... but....what to do??.......You can only rely that the Law will protect

 

I personally do not agree with your assertions about the law of the land, because I think your core contention that the lender has to sign the deed in order for it to be valid is wrong (as stated by the judge in the Eagle Star case which you posted earlier). But I don't propose to debate this point any further as it has already been discussed at length and I respect your opinion, indeed we will have to wait and see what the Property Chamber says.

[MUTT1]

steampowered you make it sound so simple, be assured I know exactly what this thread is about. My application forms do not and never had conditions attached, the only document to refer to the "Mortgage Conditions" is the deed signed as a Mortgage Deed.

 

I know all about simple contracts, verbal and all of the rest so, I do not need advice in that regard. My comments are, I feel, valid to this thread and, as such there is no need to start another thread on secured loans.

 

If, your explanation as to what constitutes to be my agreement, then why has none of the lenders responded to me in a similar fashion?

[steampowered]

I was just trying to answer your question MUTT1. I am not psychic and I do not know what your application form says or what documents were attached. If you have already grasped the basics of contract law there is not a lot I can add to the discussion, as I do not have the documents.

 

I can't vouch for the responses you have received from the lender. Remember that you are probably dealing with non-legally trained people in a collections department - it may be that their responses do not stand-up to a technical legal analysis. Also bear in mind that the loan agreement might be made up of several documents - such as your mortgage offer, the application form and any other documents made available to you at the time you agreed to take out the loan.

[applecart]

Why is this relevant when the borrower has already sold their property and the Deed no longer appears on the register?

 

It is relevant - due to the fact that the lender will have benefitted from an un-executed deed....I posted Halsbury's Law to do with this... I know you are busy monitotring more than this thread...so you may have missed it.....but there is no provision in Halsbury's Law which says that a party can be seen to benefit from a deed that they have not either signed or executed....in fact; when we talk of 'specific performance'.... it will be the borrower - who is the party that has signed the deed that can call for specific performance - not the lender; how that will work in practice, I forsee to be .... the lender giving back all benefit...that's cmi payments etc...even the property if they have repossessed it and sold it on...and all the benefit that it derived from the sale.....Halsbury's law is quite specific on this point from what I could see...

 

It follows therefore...that a historic copy of the deed will suffice to show that between the period of inception and sale....(mortgage statements in evidence attached) will evidence the benefits the lender derived from the un-executed deed.....and any other evidences of similar type

 

It will make no difference that the lender thinks he is 'home and dry' after he has sold on the property...the paper trail will be far too much to avoid...as far as I can tell...

 

I don't see why s2 LPMPA 1989 is relevant to the loan element of a mortgage contract. This section says a contract for the sale or disposition of an interest in land must be in writing. But a loan of money is not the sale or disposition of an interest in land ... even if the Deed of Charge falls away you still have a loan agreement.

 

You say you rely on 'eagle star' and 'helden' (possibly).....we must remember it was the decisions of one of these cases - if not both - that tell us that section 2 LPMPA 1989 does refer to the loan element of the 'mortgage' contract...... I cannot truly see how this can be in dispute.....sorry SP ; (

 

We cannot 'split' hairs here....the lenders intent is clearly to create a relationship to secure the loan with the property...for that....there must be a contract with all the terms and conditions attached and accompanied by the Deed (not the form of charge); the 'contract'....it's terms and conditions...are referred to in the 'form of charge'....where is it?.....why has it not been lodged with HMLR with the 'form of charge'?......where is the deed?...there is only a 'form of charge' ......the contract in relation to land must meet s.2......a deed must meet s.1....we have already exhausted the reasons why...and the applicable legislations ....so I won't repeat myself again here.

 

Borrower/lender is not a recognised category of fiduciary relationship. Lenders do not owe fiduciary duties to borrowers. They do, however, owe a contractual duty of care and certain regulatory duties.

 

Now on this, I could do with your guidance......would you mind expanding on this point made please?

 

I am not intending to talk about property law here. I am talking about contract law. Specifically, the loan agreement under which the borrower agrees to repay money advanced by the lender. Even if the Deed/mortgage/charge falls away because it did not meet the proper formalities for a deed, the underlying loan is still there.

 

How can you not speak 'property law'....this whole thread is to do with contracts in relation to land and of course 'deeds' in relation to land....we are not talking 'simple contracts' here....I cannot see how a lender can intend that the Chamber avoid section 2 in relation to an agreement to create a 'mortgage': see Section 2 (5) FSMA 2000

 

(5)This section does not apply in relation to—

(a)a contract to grant such a lease as is mentioned in section 54(2) of the M1Law of Property Act 1925 (short leases);

(b)a contract made in the course of a public auction; or

[F1©a contract regulated under the Financial Services and Markets Act 2000, other than a regulated mortgage contract;]and nothing in this section affects the creation or operation of resulting, implied or constructive trusts.

(6)In this section—

 

“disposition” has the same meaning as in the Law of Property Act 1925;

“interest in land” means any estate, interest or charge in or over land [F2or in or over the proceeds of sale of land].

[F3“regulated mortgage contract” must be read with—

(a)section 22 of the Financial Services and Markets Act 2000,

(b)any relevant order under that section, and

©Schedule 2 to that Act.]

 

Here is section 22 of the FSMA 2000:

 

22 The classes of activity and categories of investment.

 

(1)An activity is a regulated activity for the purposes of this Act if it is an activity of a specified kind which is carried on by way of business and—

(a)relates to an investment of a specified kind; or

(b)in the case of an activity of a kind which is also specified for the purposes of this paragraph, is carried on in relation to property of any kind.

(2)Schedule 2 makes provision supplementing this section.

(3)Nothing in Schedule 2 limits the powers conferred by subsection (1).

(4)“Investment” includes any asset, right or interest.

(5)“Specified” means specified in an order made by the Treasury.

 

There appears to be no means from the above, where we can avoid the fact that section 2 relates to a regulated mortgage....and again... I cannot see where a lender can avoid the necessity to sign the 'contract' in relation to a land transaction intending to secure a indebtedness against a borrowers home....regardless of his purpose for entering into the relationship with the borrower?

 

Notably, where a lender will insist that section 2 does not apply - it does in fact wholly apply....all property where the borrower occupies at least 40% of the property as a dwelling...is 'regulated'.......likewise...if you look to the Administration of Justice Act 1970...you will again find a definition of a 'dwelling house':

 

39 Interpretation of Part IV.

 

(1)In this Part of this Act—

 

“dwelling-house” includes any building or part thereof which is used as a dwelling;

 

Tenants use a "dwelling house" as a 'dwelling'...they will occupy more than 40% of the flat/house or whatever space they are renting as their "dwelling"...

 

so, please don't think I do not appreciate your point made, but; again, it is difficult for me or anyone else to truly say that the law in relation to land does not include a borrowers home...whether they live in it or indeed whether they rent it out....it is still and will relate to a dwelling house...the dwellers will be occupying it as their home....and any contract relating to a 'dwelling' must comply with the law that relates to transactions to do with 'land'..'property'...'dwellings'...

 

In fact, if you still consider that non of the above is relevant, please say....but without more; i cannot take or see your point... sorry ; (

 

 

Yes applecart that is basically what it does. Charging orders are a recognised type of enforcement which can be used for any type of debt. Essentially the court has the power to charge people's property if a court judgment has not been paid. The only piece of paper a lender would need is an unpaid court order. Refer to. http://www.legislation.gov.uk/ukpga/1979/53/section/1.

 

There are a number of threads on CAG about credit card companies and the like obtaining a court order for repayment of a debt, and then seeking a charging order over the debtor's property. Once a charging order has been obtained the lender can then seek an order for sale.

 

I get you..... A Credit card company will still have to show an 'enforceable agreement'.....meeting CCA 1974......it is not as 'simple' as you make it out to be....in these cases...the lender has no enforceable agreement...and no valid deed......IF there is no enforceable contract.....there is no charge that can be placed on any borrowers property with a view to obtaining any order for sale......

 

Admittedly this is a much more difficult and lengthy process for the lender than obtaining a possession order under a mortgage. But it would provide an important route of attack for any lender which found that its security is invalid for whatever reason, and means even if your application succeeds the debtor cannot assume that he is home and dry, especially if there is equity in the property.

 

There is no borrower that looks to be 'home and dry' without due consideration of the merits of the case.....there should be no lender who should look to be 'home and dry' without consideration of all issues presented to the Chamber.....especially if the Borrower has equity in his/her property......Lenders get the opportunity to respond to the applications made.....perhaps this is a point they can raise as party to their response.... I know if I was a Lender, I would certainly consider this as an option ......

 

I personally do not agree with your assertions about the law of the land, because I think your core contention that the lender has to sign the deed in order for it to be valid is wrong (as stated by the judge in the Eagle Star case which you posted earlier). But I don't propose to debate this point any further as it has already been discussed at length and I respect your opinion, indeed we will have to wait and see what the Property Chamber says.

 

Fair point...I accept that Lenders are also unlikely to agree.... but, if the points you make here are good; and a lender makes reference to them - then there should be no issue with the lender securing a successful outcome from the Chamber ; )

 

Apple

Edited November 4, 2013 by applecart

[bhall]

Apple said

 

"It is relevant - due to the fact that the lender will have benefitted from an un-executed deed....I posted Halsbury's Law to do with this... I know you are busy monitotring more than this thread...so you may have missed it.....but there is no provision in Halsbury's Law which says that a party can be seen to benefit from a deed that they have not either signed or executed....in fact; when we talk of 'specific performance'.... it will be the borrower - who is the party that has signed the deed that can call for specific performance - not the lender; how that will work in practice, I forsee to be .... the lender giving back all benefit...that's cmi payments etc...even the property if they have repossessed it and sold it on...and all the benefit that it derived from the sale.....Halsbury's law is quite specific on this point from what I could see..."

 

 

 

 

What Halsbury's actually says has been twisted beyond any recognition by you.

 

Halsbury's Laws of England (4th Edition 1975) Vol 12, para 1360 actually says -

 

Where a person that is named in a deed, without executing the deed, accepted some benefit under it, that person must give effect to all the conditions on which the benefit was expressed by the deed to the conferred, and so must perform all the covenants and stipulations on their part contained in the deed.

 

You need to read the last part "covenants and stipulations on their part in the deed"

 

 

Please post one mortgage deed that shows convenants and stipulations on part of the lender that it must

 

"The lender giving back all benefit.... cmi payments etc... even the property.... Etc etc"

 

Even by your infamous mystical powers of interpretation you have out done yourself on this latest interpretation.

 

Now your just resorting to making things up.

Edited November 4, 2013 by bhall

[bhall]

Apple said

 

"You say you rely on 'eagle star' and 'helden' (possibly).....we must remember it was the decisions of one of these cases - if not both - that tell us that section 2 LPMPA 1989 does refer to the loan element of the 'mortgage' contract...... I cannot truly see how this can be in dispute.....sorry SP ; (

 

We cannot 'split' hairs here....the lenders intent is clearly to create a relationship to secure the loan with the property...for that....there must be a contract with all the terms and conditions attached and accompanied by the Deed (not the form of charge); the 'contract'....it's terms and conditions...are referred to in the 'form of charge'....where is it?.....why has it not been lodged with HMLR with the 'form of charge'?......where is the deed?...there is only a 'form of charge' ......the contract in relation to land must meet s.2......a deed must meet s.1....we have already exhausted the reasons why...and the applicable legislations ....so I won't repeat myself again here."

 

 

Remember in both Eagle Star and Heldon it was found that a mortgage deed only had to be signed by the lender.

 

You accept both cases in terms of their conclusions about section 2 but not their conclusions about deeds.

 

Looks like splitting hairs is only permitted when it suits you:roll:

Edited November 4, 2013 by bhall