Repossession questioned by deeds not being signed

[alisono]

I can post the transcript but it's lengthy so will have to scan.

The property chamber eludes to the fact that myself and Lamb have the same lender, which is not the case

[alisono]

Ok I found this on social media walker Morris

 

 

Troubled times, when the cost of living rises while wages and the public purse are being squeezed, can produce some interesting, and even ingenious, attempts by debtors to avoid paying their dues. The recent case of The Mortgage Business Plc v Lamb [1] is a good example of one such, particularly sophisticated, endeavour.

 

Argument

The claimant lender (TMB) had obtained a possession order against the defendant borrower's (Lamb) home when she defaulted on mortgage payments. Lamb succeeded in staying execution of the possession order pending an appeal predicated upon a highly technical legal argument which has been doing the rounds on various borrower-friendly internet forums and social network groups. The argument is also currently the subject of several other defaulting homeowners' defences in similar mortgage possession proceedings throughout England and Wales.

 

Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A) provides that a contract for the disposition of an interest in land must be made in writing, incorporating all the terms of the contract, and signed by each party to the contract. Section 27 of the Land Registration Act 2002 (LRA) provides that if a disposition is required to be completed by registration then it does not operate at law until the relevant registration requirements are met; and that the grant of a legal charge (or, a mortgage) is a disposition which is required to be completed by registration. Lamb's appeal argument, put as simply as possible, was that her mortgage was null and void for want of statutory formality because it was signed by the borrower only and not the lender (as is the case with the vast majority of mortgage deeds) and as such it did not comply with LP(MP)A; therefore the mortgage did not exist at law and so could not be completed by registration as required by LRA; and thus it was not binding on the borrower.

 

Following this line of reasoning, borrowers could feasibly believe that having fallen into arrears they need not clear their debt, or that they could cease to pay their mortgage altogether, without in either scenario risking losing their homes. It is clear why this argument has been seen as potentially 'revolutionary' and has been expounded by borrower-friendly forums. If found to be correct, the argument would obviously be of major concern to mortgage lenders and would require an urgent and whole-scale review of existing and future residential property mortgage investments. If found to be wrong, however, belief and reliance upon this contention would potentially expose borrowers to the real and serious risk of losing their homes, adding to the problems of those already in financial difficulties.

 

Outcome

In his judgment of 12 July 2013, His Honour Judge Butler held that Lamb's argument was "illusory" and "false". He was clearly concerned that it could mislead borrowers into wrongly thinking that their mortgage was not binding upon them, and that they could therefore default on payment without jeopardising their home. Conscious that the case was trying an argument that was the subject of much discussion on social media, as well as the focus of other residential possession proceedings, the judge delivered a careful, thorough and clear judgment, dismissing Lamb's appeal and lifting the stay of execution on the lender's recovery of possession.

 

In short, His Honour Judge Butler's reasoning was that mortgages are not within the scope of section 2 LP(MP)A at all. That section is concerned with contracts for the creation of a disposition in land, whereas a mortgage is itself actually a disposition in land [2]. The relevant statutory provision for a mortgage, being section 53 of the Law of Property Act 1925 (LPA), does not require every term to be included in a document signed by both parties, rather the document just needs to be signed by "the person creating or disposing of the interest" (i.e. the mortgagor/borrower). The judge also explained that section 27 LRA does not go so far as to say that a disposition required to be completed by registration (such as a mortgage) is created by registration and that it does not therefore exist or operate in equity before registration [3].

 

WM Comment

TMB and other lenders following this case will no doubt be pleased with its outcome. Our view is that this judgment is robust and that the decision is legally correct – we do not believe it is one that has been reached merely to prevent the opening of the proverbial floodgates and to avoid the downfall of the residential mortgage as we know it. The wide public interest in the possibility of the so-called void mortgage revolution, however, is such that this, or indeed any of the other active possession cases considering the same issue, may find its way to the Court of Appeal. Walker Morris will continue to monitor and report on any developments.

 

[1] 12 July 2013, In the Preston County Court on appeal from the Burnley County Court (Unreported)

[2] Helden v Strathmore [2011] EWCA Civ 542 followed

[3] Thompson v Foy [2009] EWHC 1076 (Ch) followed

[applecart]

hERE Neutral Citation No. [2013] NICh 14

Ref:

DEE8994

 

 

 

Ex tempore Judgment: approved by the Court for handing down

Delivered:

19/09/2013

(subject to editorial corrections)*

 

 

 

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

________

 

QUEEN’S BENCH DIVISION

________

 

BETWEEN

SANTANDER (UK) plc

Plaintiff/Respondent

and

 

THOMAS ANTHONY CARLIN & MAXINE KARON HUGHES

Defendants/Appellants

________

 

 

DEENY J

 

Application

 

[1] The court here is dealing with a situation which happily is unusual. Thomas Anthony Carlin and Maxine Karen Hughes have appealed from an Order for possession granted by the Master relating to their home because they are in arrears of payments on an interest only mortgage on the property. As a number of personal litigants do in recent times they challenged the right of Santander UK plc to enforce the mortgage because they suspected that they may have transferred it away.

 

[2] It is clear law, as has been recently reaffirmed by the Court of Appeal in England in Paragon Finance v Pender and Another [2005] 1 W. L. R. 3412 that a legal owner of a charge can part with the equitable interest in it without losing their right to enforce the charge. Therefore, this point in many cases is likely to prove a short-term gain for any borrower because it is simply a matter of the right person establishing that they are entitled to assert what had been agreed between the parties under the mortgage would happen in default of the payments agreed. Nevertheless, it is essential that the court is making an order in favour of the correct party who has the right to enforce a legal charge, as much as any other contract between parties.

[3] A most unhappy situation has developed here. Santander UK plc sought the Order for possession. They put in an affidavit in support; they chose to do it in a particular way, that is through their solicitor. Now, Mr Carlin in one of several documents which he submitted to the court has sought to rely on a judgment of Mr Justice Peart in the High Court in Dublin where he objected to hearsay evidence of debts. It seems clear that there is no equivalent of the Civil Evidence Order in the Republic of Ireland and explains the judge’s remarks. We do have a Civil Evidence Order. Parties are entitled to put in an affidavit and to rely on hearsay evidence with the court assessing its weight. In any event even before the Civil Evidence Order an affidavit with the deponent saying that they had been informed of something by a named person and that they believed it was true, in appropriate cases for the smooth administration of justice was received. This is often done, particularly in originating summonses cases. But it is important that it is done carefully and conscientiously. The system only works if both the lawyer is scrupulous in what the lawyer says and the client is honest in what they inform the lawyer.

 

[4] Here we have the situation where, it is now admitted that paragraph 15 of the affidavit of Miss Valerie Gibson, solicitor, for the lender Santander plc of 6 December 2012 is simply wrong. Mr Carlin would say it is a lie and at the moment I do not see how that can be clearly gain said; it is not Ms Gibson’s lie but when somebody told her that the mortgage had not been assigned they were either being careless or untruthful and at this precise moment in time I do not know which is the case. And what is more Mr Carlin asserts and Mr Gibson with his customary and proper candour does not dispute that the Master was told that there had been no assignment here and so that these issues did not arise. So the Order of the court below was obtained improperly by a misrepresentation to the court, misrepresentation put by the advocate for the lender to the Master and put in a sworn affidavit.

 

[5] That would be a serious enough state of affairs but at the review of this matter before me when listing this case for hearing today, 19 September, the plaintiff was given an opportunity and was directed on that occasion on 10 June to serve a rejoinder affidavit to Mr Carlin’s affidavit and that of Miss Hughes within two weeks from that day, that is by 24 June. They did not do so. They did not serve affidavits, as far as the court was concerned, until 16 September, only three days before the hearing. Mr Carlin says he got an unsworn, undated draft two days before that. That is utterly unsatisfactory. It shows a disregard for the orders of the court which would be disreputable in a litigant in person and is equally disreputable on the part of a large commercial enterprise which should know better. No satisfactory excuse is offered for that.

 

[6] Furthermore, the matter is worsened by the disregard by Santander of the decision of Mr Justice Horner in Swift Advances plc v James and Maureen McCourt [2012] NI Ch. 33. He on that occasion, on behalf of Swift did have in court an official of Swift giving oral evidence before him because this or a similar point had been raised there. Of course it failed ultimately because Mr White, the Risk Manager of the plaintiff, gave sworn testimony that he had made the checks and the plaintiff had not sold the loan of the McCourt’s to any third party and it had not legally nor, apparently in that case, equitably assigned the charge, which the judge accepted and so Swift succeeded.

 

[7] The judge, and as I have already previously said in this court, wisely in my view, commended the course that the solicitor acting for the financial institution should expressly warn the proposed deponent on behalf of the financial institution of the serious consequences he or she bears personally and the consequences for his or her employer if he or she swears an affidavit that is false in any respect. Next, their solicitor should confirm to the court that the deponent has been so advised before the affidavit is sworn. Thirdly, the deponent on behalf of the financial institution should then swear the affidavit dealing with the plaintiff’s title to seek an order for possession. It is only if some uncertainty is left then that one should go on to deal with applications for specific discovery. So it can be seen here that Santander have further disregarded the decisions of this court because they have not deigned to swear the affidavit themselves but have required Miss Gibson to do it. Now the matter that is set out therein may or may not be right but it seems to me as it contradicts the earlier information on affidavit as it was given to the Master that Mr Carlin is entitled to cross-examine this lady as to whether it is true and perhaps is entitled to further discovery.

 

[8] His initial application today was to adjourn the matter because he had not got the skeleton argument in time and he had just been presented with this change of front at a very late stage and the court was sympathetic to that application. I heard from Mr Gibson. I gave the opportunity to Mr Carlin as to whether he had any further application and of course he might have made several applications at that time but he has chosen, as he put it, to ask me to strike out the order, and as he put it, I think not unreasonably in the circumstances, on the basis of untruth. Now the court of course recognises that everybody makes errors. They should not make them on affidavits, but at this point I do not know whether this was an honest error, I do not know whether somebody was playing fast and loose with the truth. No explanation of the earlier misstatement is given in the new affidavit. What is certainly the case is that Santander have been in breach of the directions of the court, they have been in breach of the judgment of Swift v McCourt and they obtained an order by at least, as I said earlier, misrepresenting the facts to the Master.

[9] In all those circumstances I conclude therefore that the appeal should succeed and I reverse the order of the Learned Master, making it clear that this is no reflection on him, and strike out the order for possession.

 

 

IT IS FOR BED TIME READING,

 

We need to remember the above case in regard to those Lenders who have 'gone away'....when a firm of solicitors is attending the hearing (or Accenden) and there is no sight of any affidavit signed by the Director of the Company concerned......

[bhall]

You should also remember the quoted case because -

 

 

"[2] It is clear law, as has been recently reaffirmed by the Court of Appeal in England in Paragon Finance v Pender and Another [2005] 1 W. L. R. 3412 that a legal owner of a charge can part with the equitable interest in it without losing their right to enforce the charge."

 

 

Pender v Paragon 2005

 

"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."

 

Alisono said (it would appear quoting the Mortgage Sale Agreement)

 

The Loans and the Collateral "Security comprised in the Initial mortgage Pool will be sold on the Closing Date by the Sellers to the Issuer. Substitute Loans, Ported Loans, Prefunded Loans and Newly-Originated Loans may be acquired by the Issuer from a Seller after the Closing Date, in each case in accordance with the terms of the mortgageSale Agreement. The sale of the Loans and their related Collateral Security to the Issuer will take effect in equity only"

 

In equity only exactly as per Pender.

[IS IT ME?]

I wondered how long lol

[applecart]

I wondered how long lol

 

Is there anyone here who is defending possession purely on reliance that the Lender has securitised the unlawful 'mortgage'......

 

Here we are dealing wholly and purely with the relationship between the Lender and the Borrower........that relationship finds that the Deed has not been executed by the Lender and is therefore void for want of due execution and delivery.....

 

We are finding that when we are sending post to Lenders to respond to applications made, that Royal Mail are marking the post as 'gone away'......the case re-posted above..... #3028.... clearly points out that the Judge is interested to know that he is granting judgement if and where applicable to the correct party.......if it is found and evidenced that an order for possession could not have possibly been granted in favor of the correct lender..... then it is with respect to the DJ or HCJ or whichsoever member of the judiciary who may have unwittingly granted the

order for possession... that it will be overturned....as and when these issues come to light...

 

Apple

Apple

[bhall]

Received a letter toady from the Property chamber letter telling me that they have struck out an application. They have sent this also to my lenders solicitors attached is the whole transcript of the above case.

 

Lamb in question was heard at my local county court for originally possession hearing and she had an order against them given. They appealed case To another DJ same court who said no appeal on your grounds, ground being ad stated above that the mortgage deed was indeed a contract and had never been executed properly so in the terms of contract and not executed it have never then formed a mortgage as both signatures of lender and. Borrow weren't on the deed. Lamb appealed again and was heard only for her Appel to be said they found that the DJ originally was correct even though he had not had the section 27 presented originally , some success may of happened if he had but on reflection no and her appeaL lost. again as not enough merit and would be unsuccessful.

I think she had then applied to the property chamber her reference number is newer than mine by 2 and they have struck it out as the DJ has. already litigated on this case.

Have you seen the Lamb transcript?

 

Hello

 

I am really sorry that you have had to discover in these circumstances that the fanciful ideas posted in this thread by Apple and supported by Is It Me? are wrong.

 

Given the notification from the Property Chamber, have you considered starting a thread in the repossession sub-forum in case either Ell-en or Lea-th can offer you any real advice that may help you. You have nothing to lose by considering alternative trains of thought.

 

Ben

[IS IT ME?]

Who said their wrong. Not the chamber as yet!

Or are you saying YOU know what they are going to say lol

[applecart]

Who said their wrong. Not the chamber as yet!

Or are you saying YOU know what they are going to say lol

 

There is clearly an avid need to ensure that possessions orders continue to the assist the overall objectives of an SPV against the legislators intent...... Best to stay focused : )

 

Apple

[p.j]

Hello

 

I am really sorry that you have had to discover in these circumstances that the fanciful ideas posted in this thread by Apple and supported by Is It Me? are wrong.

 

 

 

 

Given the notification from the Property Chamber, have you considered starting a thread in the repossession sub-forum in case either Ell-en or Lea-th can offer you any real advice that may help you. You have nothing to lose by considering alternative trains of thought.

 

Ben

 

Ben not being rude but you are starting to sound like a jobsworth for your bosses or who ever pulls your strings.

 

 

pj

[caro]

Ben not being rude but you are starting to sound like a jobsworth for your bosses or who ever pulls your strings.

 

 

pj

 

Interesting. Assuming that you think Ben works for a lender, why would he advise them where to find advice which has a good chance of preventing repossession when that is usually what they want?

 

If this is indeed the case then it's an initiative I applaud if lenders are going to proactively help their customers. Let's hope many more follow suit.

 

Personally my opinion of bankers isn't that high.

[bhall]

No I do not work for any lender or any organisation that provides mortgages or any other type of financial product or financial advice.

 

P.J if I worked for any lender and if that lender could be bothered to comment on this thread (which I very much doubt as there has been nothing posted to give a lender any concern) I would promote Apple's fanciful ideas on the basis that I know they don't and won't work, if that lender wanted to repossess properties.

 

It is only going to end one way at the Property Chamber, all you need do is look at all of its responses thus far.

 

It would appear that the property chamber route promoted by this thread has not been successful for one Cagger. What is so wrong with suggesting that Cagger consider alternative possibilities or seek help from others with a proven track history ? What else would you advise the Cagger to do ?

Edited November 8, 2013 by bhall

[steampowered]

Received a letter toady from the Property chamber letter telling me that they have struck out an application. They have sent this also to my lenders solicitors attached is the whole transcript of the above case.

?

Was this your application that was struck out alisono? May I ask if there was any order about paying legal costs?

[applecart]

Received a letter toady from the Property chamber letter telling me that they have struck out an application. They have sent this also to my lenders solicitors attached is the whole transcript of the above case.

 

Lamb in question was heard at my local county court for originally possession hearing and she had an order against them given. They appealed case To another DJ same court who said no appeal on your grounds, ground being ad stated above that the mortgage deed was indeed a contract and had never been executed properly so in the terms of contract and not executed it have never then formed a mortgage as both signatures of lender and. Borrow weren't on the deed. Lamb appealed again and was heard only for her Appel to be said they found that the DJ originally was correct even though he had not had the section 27 presented originally , some success may of happened if he had but on reflection no and her appeaL lost. again as not enough merit and would be unsuccessful.

I think she had then applied to the property chamber her reference number is newer than mine by 2 and they have struck it out as the DJ has. already litigated on this case.

Have you seen the Lamb transcript?

 

Hi Alisono

 

I see.

 

Well, we do not say that the deed is a contract here. It is a common mistake that Borrowers assert on the mistaken belief that if they can somehow make out that the deed is the 'contract'....they can then argue that lpmpa section 2 will fit....Yet we have been guided time and time again......lpmpa section 2 DOES NOT apply to a deed!.....I think it is about time that we begin to take that FACT on board.....

 

I have yet to understand why the Chamber have sent both you and the lender a copy of that case.....

 

Maybe, they are 'encouraging' your lender to rely on 'lamb' to assist them with their 'response' to your application?? Who knows....it would be re-miss of them to do so.....maybe they sent it to give your lender an indication as to the speed in which they can use their 'discretion' to strike out a case that has 'no merit'.....??

 

Enough of us trying to 'second guess' the Chamber right now.... what we do know is ...... your case has not been 'struck out'....they have not advised you that your case is 'without merit'.....so....we will take it that so far.....it is still up to your Lender...(who has gone away) to respond to the application.....

 

When you go to court... if you have not already copied and sent a copy of the 'gone away' evidence to the court.....bring a copy of the envelope with the 'gone away' stamp showing on it to the hearing (probably an idea to do so in any event)....the acting firm of solicitors can then take time to explain to the Judge; who they are actually acting for??.....they will also need to put an explanation in their response to the Chamber.....(see the 'Santander' case above)

 

If I remember correctly... in your case at the local court....we are asking the court to 'stay'/adjourn the proceedings...it may be that in lieu of the additional evidence of.... 'gone away'.....the court will have no choice...but to strike out that claim all together....

 

I cannot see that in lieu of the growing evidence that the Judge in your case can do anything other than 'adjourn'...'strike out' or 'stay' the proceedings.... he has already 'minded' them of his intention to do so....I cannot see him saying..."oh, you've 'gone away'....here is a possession order to Alisono's house....I'll get this recorded on file for you until you come back"

 

There must be 'certainty'.....the Judge cannot say that he is 'certain' that he is granting an order in favor of a lender...when the evidence contradicts itself....they have not updated the public record that relates to the charge in their name held at HMLR....their claim relies on that public record.....the address on that very highly transparent public record says 'gone away'..

 

Remember... in your case....they admitted selling the beneficial interest...we provided TDA 1999 section 10....we now find ...they have 'gone away....it all fits....if you have sold off all the alleged purported lawful gained interests....it is only right that we should find that you have 'gone away'....and the evidence that you have supports that understanding ; )

 

It is only right that you be allowed to request that the claim at the local court be struck out...and that your application to the chamber be allowed to proceed...so that you can follow due process to ask that their name be removed from the register......

 

However, lets wait and see what the local court does...and how your Lenders solicitor reacts to the finding that their client has 'gone away' many years ago.....

 

 

Apple

[dogdays]

Having followed the threads. Can I ask a question with regards non signed deeds, as the deeds are used to appoint LPA receivers, would an unsigned mortgage document put this appointment in doubt. Thanks

[TimetogoRAM]

Having followed the threads. Can I ask a question with regards non signed deeds, as the deeds are used to appoint LPA receivers, would an unsigned mortgage document put this appointment in doubt. Thanks

 

 

Hi mate, we are finding that many of us are signing mortgage applications and then sent the mortgage offer along with t&c's & then we are required to sign what the lender purports to be a mortgage deed with more t&c's referring. The lender is not signing any document whatsoever, including the deed!

 

What we are also finding is that lenders are relying on the lamb case to refer us to the section 2(1) LPMPA 89 as earlier stated in this thread, where the lender is saying, this section does not refer to the deed and refers to the contract. We need to remain focussed and concentrate on section 1 LPMPA 89, which refers to the deed, and not get drawn in to this same old trap!

 

..however regarding this contract/agreement situation. A contract has to be signed by both parties. If these 2 acts are separate, and the lender would like us to ensure it is for their defence. This being the case, and if they are completely separate, how can a lender rely on the fact that they have a valid contract or agreement?

 

If the deed is seen to be void then the Property Chamber would remove the lenders name from the register, meaning all interest payments, arrears etc all refundable to the borrower. The rest of the debt however would be repayable as an unsecured debt.

 

If the contract/agreement was void (and it has to be as no one has signed this) then surely there us no debt either!

 

Im struggling to get to grips with how a lender and a court can say they are separate when effectively the lender is relying on our signature on a deed to bind us into the mortgage contract together with the t&c's?

[sequenci]

If the deed is seen to be void then the Property Chamber would remove the lenders name from the register, meaning all interest payments, arrears etc all refundable to the borrower. The rest of the debt however would be repayable as an unsecured debt.

 

That's an interesting point for sure. Can you direct me to an example where that has happened before?

[steampowered]

Im struggling to get to grips with how a lender and a court can say they are separate when effectively the lender is relying on our signature on a deed to bind us into the mortgage contract together with the t&c's?

Hi,

 

 

The basic reasoning is that there is no need for anyone to sign anything for there to be a contract. Generally speaking, legal formalities are as follows:

• A disposition of an interest in land is covered s52 LPA 1925 and must be by deed. The person maknig the disposition (i.e. the borrower) must sign. Whether or not the lender is required to sign has been the main topic of this thread.
  
• A contract for the disposition of an interest in land is covered by s2 LPMPA 1989 and requires the signature of both parties.
  
• A basic contract, such as a loan agreement, only requires offer and acceptance. Verbal contracts and contracts accepted by conduct are perfectly binding. The mortgage company made an offer to lend money based on the documents provided to you at the time which you accepted by borrowing the money, I don't see how there can be any dispute about this.
  
• Even if there is no contract at all, if you have been unjustly enriched you will be ordered to pay that money back. This would stop people from basically getting a free house they didn't pay for, even if all applecart's arguments are correct.
  

The lender's argument will be that the mortgage deed comes within category 1 (and that there is no requirement for the lender to sign). The lender will argue that the loan itself comes under category 3.

If the deed is seen to be void then the Property Chamber would remove the lenders name from the register, meaning all interest payments, arrears etc all refundable to the borrower. The rest of the debt however would be repayable as an unsecured debt.

 

Yes the debt would be unsecured, but I don't see why it would be refundable. If the underlying debt is valid you can't claim back your repayments.

[TimetogoRAM]

Hi,

 

 

The basic reasoning is that there is no need for anyone to sign anything for there to be a contract. Generally speaking, legal formalities are as follows:

• A disposition of an interest in land is covered s52 LPA 1925 and must be by deed. The person maknig the disposition (i.e. the borrower) must sign. Whether or not the lender is required to sign has been the main topic of this thread.
  
• A contract for the disposition of an interest in land is covered by s2 LPMPA 1989 and requires the signature of both parties.
  
• A basic contract, such as a loan agreement, only requires offer and acceptance. Verbal contracts and contracts accepted by conduct are perfectly binding. The mortgage company made an offer to lend money based on the documents provided to you at the time which you accepted by borrowing the money, I don't see how there can be any dispute about this.
  
• Even if there is no contract at all, if you have been unjustly enriched you will be ordered to pay that money back. This would stop people from basically getting a free house they didn't pay for, even if all applecart's arguments are correct.
  

The lender's argument will be that the mortgage deed comes within category 1 (and that there is no requirement for the lender to sign). The lender will argue that the loan itself comes under category 3.

 

 

Yes the debt would be unsecured, but I don't see why it would be refundable. If the underlying debt is valid you can't claim back your repayments.

 

Agreed that if a deed was void then you couldn't but Surely if a contract/agreement is void then I'd ave thought you can?

SP - that honestly does not make sense. So you're saying there's absolutely no onus whatsoever for a lender to sign anything for there to be a binding contract agreement between two parties. Where's the fairness in that? All loan/car/credit card agreements all have a lenders signature before we sign?

 

You mentioned it in s2 LPMPA - *]A contract for the disposition of an interest in land is covered by s2 LPMPA 1989 and requires the signature of both parties?.. Surely a mortgage agreement should come under category 2?

Edited November 8, 2013 by TimetogoRAM

[TimetogoRAM]

That's an interesting point for sure. Can you direct me to an example where that has happened before?

 

Are you saying where in a court the contract agreement is void? Or which lender has not signed an agreement?

 

I do not know of any court judgment but I'll take a look. If it's the second point you're referring to then my lender is, and quite a few borrowers' lenders on this thread seem to have documentation as this!

Edited November 8, 2013 by TimetogoRAM

[sequenci]

Sorry, I should have made it clearer. I was wondering if there is any legal authority in relation to residential mortgages where this has happened. You see I'm still absolutely of the belief that an unsigned deed wouldn't change a great deal in the grand scheme of things. Hence me being super keen to see something specific to residential mortgages. My interests/understanding in this area is simply academic; so I cannot say I know much about the practical aspects.

[TimetogoRAM]

*]"Even if there is no contract at all, if you have been unjustly enriched you will be ordered to pay that money back. This would stop people from basically getting a free house they didn't pay for, even if all applecart's arguments are correct. "

 

- you mean like all the lenders and most bankers have? i don't expect a free house, but I do expect lenders to abide by the law and for breaking it, surely I am entitled to some restitution.

[applecart]

Having followed the threads. Can I ask a question with regards non signed deeds, as the deeds are used to appoint LPA receivers, would an unsigned mortgage document put this appointment in doubt. Thanks

 

Most definitely.

 

All and every thing that would lead to any benefit to the favour of a lender is derived from the Deed.....if the Deed is void for want of delivery.....as we assert on this thread that it is......then the appointed receiver would also come unstuck and his actions taken on behalf of the lender to secure any benefit....will not have been anymore lawful than anything else occasioned off the back of a void Deed....

 

Hope this helps?

 

Apple

[TimetogoRAM]

Sorry, I should have made it clearer. I was wondering if there is any legal authority in relation to residential mortgages where this has happened. You see I'm still absolutely of the belief that an unsigned deed wouldn't change a great deal in the grand scheme of things. Hence me being super keen to see something specific to residential mortgages. My interests/understanding in this area is simply academic; so I cannot say I know much about the practical aspects.

 

I haven't a clue. One thing I do know is my lender has not signed a thing - from an offer to a deed, so where is my agreement/contract?

[alisono]

A quick question : I have been looking at my mortgage deed today it has these clauses in it :

 

2. You charge the property as legal owner by way of legal mortgage as a continuing security for the payment of your debt in accordance with part 13 of the offer and mortgage conditions. This is full title guarantee.

 

Part 13. Mortgage conditions :

1. The mortgage is security for the entire amount of your debt

2. We must have firt legal mortgage over the property

3. th e mortgage will not secure any sums that you may owe under an agreement by the credit consumer act 1974, unless

a. Part V of the consumer credit act 1974 (which deals with the formalities for entry into consumer credit agreements) does not apply to the agreement

b.the agreement expressly provides that the monies payable under it are to be secured by the mortgage.

 

I cant see in Part 13 anything telling me the mortgage is made with full title guarantee.

 

3. You apply to the Chief Land Registrar to enter on the register of any registered land which forms part of the property, a restriction that "No disposition of the registered estate by the proprietor of the registered estate is to be registered without written consent signed by the proprietor for the time being of this charge"

 

I have never applied to the Chief Land registar or asked them to do this? I am the the Proprietor as Title Absolute. SPML are only on the Charges register saying Proprietor and the date.

 

This is as clear as mud really?