Repossession questioned by deeds not being signed

[TimetogoRAM]

Is It me I have sent you a pm for some help

 

Hi alisono, i'll link in with this letter/email to the chamber too. I reckon its scandalous !

[Winged Piglet]

Is It Me?

 

There are both very clearly mortgage deeds - the giveaway is that they both have the heading mortgage deed.

 

They are both for high street lenders and both only require the signature of the borrower. Neither require or have space for the signature of the lender.

 

Therefore they answer your question ;-)

 

Why then does the Council of Mortgage Lenders, the trade organisation representing Lenders including High Street Lenders the same as on your example Deeds, give guidance to Borrowers telling them that Lenders should sign the Deed?Why? Answer me that then?

 

 

Here is what the CML says:-

 

If your conveyancer is also acting for your lender, your lender may instruct the conveyancer to prepare the mortgage deed. This is the legal contract between you and the lender. Your conveyancer will explain the terms of the mortgage deed to you, and then have them signed by you and the lender.

 

My conveyancer also acted for the Lender (like in thousands of cases) and strange they didn't sign the Deed.

 

???

 

WP

[MUTT1]

sequenci,

 

You put a question to apple in post 3113 (yet another snipe at apple), apple graciously answered that personal question, would you now, instead of totally ignoring apple's question to you in post 3119, be as gracious and reply to apple's question?

 

MUTT1

[IS IT ME?]

Ohhhh you found the bit I wanted to keep WP lol

Why oh why that is the question Ben doesn't have a copy of a deed which has been sent to the LR so we can all see if the lenders have signed it

Because my old Halifax one from 1999 does!

[IS IT ME?]

You will not get an answer, I am still waiting for a reply with regard to andrews1 comment ha ha

[MUTT1]

Hi IS IT ME,

 

Good to see you on form, is that right about the Halifax signing the deed and if so was there a seperate box for the signature? Did you date your signature at the time or was it left blank?

 

MUTT1

[bhall]

Hello WP

 

If you take a few moments to look further on the CML website you will see that in response to a question posed by the CML to its members the majority confirm that they don't even want the mortgage deed sent to them.

 

Ben

[bhall]

Ohhhh you found the bit I wanted to keep WP lol

Why oh why that is the question Ben doesn't have a copy of a deed which has been sent to the LR so we can all see if the lenders have signed it

Because my old Halifax one from 1999 does!

 

Why oh why ?

 

Lol Is It Me?

 

You are now asking for the impossible how am I or anyone for that matter supposed to provide you with copies of mortgage deeds in the way you now request ? Come on let's be sensible and realistic.

 

As per the other mortgage deeds I have posted including accord, the two today do not have a space for the lender to sign.

[bhall]

You will not get an answer, I am still waiting for a reply with regard to andrews1 comment ha ha

 

If you are referring to your question about what Andrew said about CAG disclosing Caggers details, if you read the thread you will see that a member of the site team did already answer you.

 

You have over 650 posts I think at least 400 of them must be you saying a question you have asked has not been answered. ;-)

[IS IT ME?]

Ben,

I have looked and I think I could see that we are all not as blind as you to the truth, they have not answer and which post do you refer?

As the last time I looked you were not a site team member or are you.

[IS IT ME?]

Mutt1

Yes I have spoken with my solicitor who informs me and has put a copy in the post to me that it not only has the Halifax stamp on it but signed by a Mr reed from there office in West Yorkshire

[bhall]

Ben,

I have looked and I think I could see that we are all not as blind as you to the truth, they have not answer and which post do you refer?

As the last time I looked you were not a site team member or are you.

 

Lol no I am not a member of the site team and it wasn't me that answered your question.

 

Please see sequenci's post 2918, in which he/she answered you. I do wonder sometimes if you read what is posted in this thread, this isn't the first time that it appears you don't.

[IS IT ME?]

By the way Ben it's the old TR form which was used

[MUTT1]

bhall,

 

Why are you responding to a specific question put to another CAG member that has nothing to do with you? Let the answer come from the person it was put to (should that be 1o or 2)?

 

MUTT1

[IS IT ME?]

Ben or is it sequenci the question had not been answered just bushed over don't worry yourself about it

[bhall]

bhall,

 

Why are you responding to a specific question put to another CAG member that has nothing to do with you? Let the answer come from the person it was put to (should that be 1o or 2)?

 

MUTT1

 

Hello Mutt1

 

I was trying to be helpful ;-)

 

Is It Me? Asked a question, the person that he asked answered it but it would appear Is It Me? missed the answer ?

 

Why is it a problem for me to direct him to the answer that he had previously been given ?

[applecart]

Looks like Applecart has upset the 'cart'......lol

 

Apple

[MUTT1]

IS IT ME,

 

Very interesting, I had a mortgage with the Halifax just before yours and, unlike bhall who suggests what is an immpossible task to find these deeds, I will enquire to HMLR as to what it has on record. If it transpires that a deed signed by both parties exists then an application will be made for a copy.

 

MUTT1

[bhall]

Ben or is it sequenci the question had not been answered just bushed over don't worry yourself about it

 

Lol, so now I either working for a lender, working for the legal team of a lender, a member of the site team and now I am Sequenci lol

 

Is It Me? Your paranoia is reaching new heights. I don't work for a lender, I do not work for the legal team of a lender. Quite clearly I am not a member of the site team thus making it impossible for me to be Sequenci.

 

 

Sequenci said he/she believed that it did happen but was not party to events. You asked a question and got an answer.

[bhall]

Seriously guys rain in the paranoia a little.

[Winged Piglet]

Hello WP

 

If you take a few moments to look further on the CML website you will see that in response to a question posed by the CML to its members the majority confirm that they don't even want the mortgage deed sent to them.

 

Ben

 

 

 

Where is that then, please post link Ben.

 

The 'majority' ??

 

Very odd that there should be such disparity between advice to lowly borrowers proffered by the CML, the Lenders very own Trade Association and apparently what they say they, the Lenders intentions actually are in that they don't wish to see it. Perhaps they think if they don't see it, they don't have to sign it lol! La la la not listening............ sang the Lenders *fingers in ears* ;-)

 

Your thoughts Ben?

 

Perhaps we need to ask the CML and see what THEY say eh!

 

WP

[MUTT1]

Hi bhall,

 

There is no problem in directing someone to something that they may have missed or perhaps misunderstood, as long as that intention was genuine and honest. If you were just trying to be helpful as you say then that of course is welcolme.

 

I have no malice or bad feelings about anyone posting on this thread, as long as what they say is genuine and to (should that be 1o or 2) the benefit of all CAG members involved in this discussion.

 

MUTT1

[applecart]

Hi All

 

Here's an interesting decision...it is headed up as:

 

Difficulties increase for lenders to obtain possession orders

 

On 31 January 2013, the High Court refused to grant an order to Irish Life and Permanent (“ILP”) for possession of the family home of Malcolm and Susan Duff. This case demonstrates the difficulties that lenders are facing in obtaining possession orders in circumstances where borrowers have defaulted on their loans. The case also considered whether the lender had complied with the Code of Conduct which requires banks to engage with borrowers when they experience mortgage arrears.

ILP had been granted an order for possession in the Circuit Court. The Circuit Court placed a stay on the Order for possession which was to expire on 28 February 2013 and the defendants (Malcolm and Susan Duff) appealed this decision to the High Court.

 

Background

 

In 2003, the defendants obtained a mortgage from ILP in the sum of €258,000. The mortgage was over the family home which comprised both registered (the garden and curtilage) and unregistered land (the dwelling).

 

The mortgage provided that ILP would not exercise the right to possession until the defendants had defaulted in mortgage repayments for two or more months. In or around 2008, the defendants entered into arrears and ILP initially instituted proceedings but these were withdrawn so that the parties could enter into discussions about the arrears. The Bank sent frequent correspondence to the Borrowers advising that they were in default and that they would instruct solicitors to gain possession. Mr Duff contacted ILP in October 2009 to state that he had sent three letters setting out proposals for repayment. The parties discussed various short term proposals and Mr Duff offered to pay €5,000. However, ILP stated that this would be insufficient to stop the arrears increasing.

 

Thus, despite the borrowers’ attempts to outline proposals to repay the debt, the Bank entered proceedings for possession in the Circuit Court in early 2010 as the arrears were in the sum of €28,600 by February 2010. On 29 February 2012, Ms Justice McDonnell made an order granting ILP possession of the defendants’ property but also granted a stay for one year. The defendants then appealed this decision.

 

In the High Court, Mr Justice Hogan considered three issues:

 

1. Whether the proceedings were properly commenced by the Ejectment Civil Bill;

2. Whether the court has jurisdiction to grant possession to ILP in respect of unregistered and registered land (the court considered this by looking at both the legislation and the contractual agreement between the parties); and

3. If the court does have jurisdiction, should it exercise this jurisdiction where the Bank did not comply with the Code of Conduct issued by Central Bank?

 

Decision

 

Firstly, Judge Hogan held that the proceedings had been properly commenced by an Ejectment Civil Bill.

 

Secondly, the Court looked at section 62(7) of the Registration of Title Act 1964 (“the 1964 Act”) which provides that when repayment of the principal money has become due, the registered owner of a charge can apply to the court in a summary manner for possession and if the court thinks its proper, it can grant an order for possession and the applicant will be deemed to be a mortgagee in possession. As section 62(7) was repealed by the 2009 Act, Judge Hogan considered the decision in EBS v Gillespie [2012] IEHC 243 and Start Mortgages [2011] IEHC 275. These cases held that if a right accrued under the 1964 Act prior to 1 December 2009, then the Interpretation Act 2005 would allow the right to continue as if the enactment had not been repealed.

In EBS v Gillespie, the court held that in order to establish that a claim for possession came within section 62(7), the plaintiff had to establish that:

 

Repayment of the principal monies secured by the charge had become due by 1 December 2009; and

 

That the plaintiff was the registered owner of the charge.

 

Judge Hogan looked at the facts of the case and considered whether ILP had accrued the right to demand possession prior to 1 December 2009. He referred to a letter of demand issued by ILP on 11 December 2008 referring to arrears of €7,500 and demanding discharge of the arrears within 21 days. Judge Hogan held that this letter of demand only referred to the arrears and not to the principal monies owed and concluded that if the arrears had been discharged by the defendants, then ILP would not have proceeded any further. He stated that the terms of the mortgage did provide that the total debt became immediately payable if the mortgagor defaulted in making two monthly repayments. However, he held that this contractual clause was overtaken by the letter of demand dated 11 December 2008 and the bank had effectively waived the strict entitlements of the mortgage deed by issuing the demand letter.

 

Therefore, the Court held that as ILP had not unequivocally demanded repayment of the entirety of the debt prior to 1 December 2009, the Bank had not acquired the right to apply for an order for possession under section 62(7) of the 1964 Act and the Court thus had no jurisdiction to grant the Bank possession under section 62(7).

 

In respect of registered land, the court held that there was no contractual entitlement to possession as the Oireachtas had initially earmarked section 62(7) as being the sole mechanism under which the court could grant possession of registered land.

 

In respect of unregistered land, the Court’s jurisdiction to grant a possession order was never based on statute and was based on the fact that the mortgagee was entitled to possession by the conveyance from the mortgagors to the Bank of the property subject to the equity of redemption. Judge Hogan held that ILP in principle were entitled to possession in respect of the unregistered portion of the lands and that the court retained jurisdiction to grant an order for possession of unregistered land.

 

In considering whether the court would make an order for possession of unregistered land, the court looked at whether the bank had complied with the Code of Conduct on Mortgage Arrears. The Court considered Clause 6 of the Code which provides that lenders may not seek possession of property until “every reasonable effort has been made to agree an alternative repayment schedule”. The court held that the bank did not comply with the Code as it did not make every reasonable effort to agree an alternative repayment schedule. The court also held that the defendants could not be classed as non-cooperating borrowers.

 

Conclusion

 

In bringing an action to obtain possession of a borrower’s family home, the lender must be able to demonstrate that it has made every reasonable effort to come up with a repayment scheme and to engage with the borrower. There is no contractual entitlement to an order for possession in respect of registered land and the lenders must determine that it can satisfy the proofs set out in section 62(7) whereby the right for possession accrued before 1 December 2009. If the property is unregistered land, an order for possession is possible but the bank must now demonstrate compliance with the code of conduct.

 

 

eeeerrrm..... I wonder if the Chamber would mind too much if Cagger substitute this Judges decision instead of the 'lamb' decision......or perhaps...Just to keep things 'equal'....Caggers by 'mistake' include it anyway????

 

 

Apple

 

source: http://www.hayes-solicitors.ie/news/difficultiesincreaseforlenderstoobtainpossessionorders.html

[applecart]

Did I read this bit from the 'duff' case correctly......???

 

"Conclusion

 

In bringing an action to obtain possession of a borrower’s family home, the lender must be able to demonstrate that it has made every reasonable effort to come up with a repayment schemeicon and to engage with the borrower. There is no contractual entitlement to an order for possession in respect of registered land and the lenders must determine that it can satisfy the proofs set out in section 62(7) whereby the right for possession accrued before 1 December 2009. If the property is unregistered land, an order for possession is possible but the bank must now demonstrate compliance with the code of conduct."

 

I wonder what Lenders will make of that????

 

Add to that = the DEED is VOID.......oooooopppppssss!!!!

 

There remains NO DEFENCE....!!

 

It's a wee bit quieter now I notice.....

 

Apple

[bhall]

Some very interesting reading about the history of the law applicable to mortgages

 

http://lawnotesh1.blogspot.co.uk/2012/06/mortgages.html?m=1

 

Some more interesting reading about the law that applies to mortgages.

 

http://www.101mortgage.co.uk/mortgage-by-legal-charge/

 

the only information can be found in countless books and websites regarding property law

 

Ben ;-)