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Repossession questioned by deeds not being signed

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Hi Is It Me

 

Can you give viewers of your thread an update to confirm that the application is still going ahead?

 

I think it will be helpful for people to know that you have not given up fighting your friends corner with the application made to the Chamber on behalf of your friend.... and that your thread is still very much alive ; )

 

Apple

Edited by ims21

[COLOR="red"][B][CENTER]"Errors do not cease to be errors simply because they’re ratified into law.” [/CENTER][/B][/COLOR][B][CENTER] E.A. Bucchianeri[/CENTER][/B]

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hey Give him a mask,

thanks very much for your reply,

I didn`t realise that the mortgage offer and terms and conditions were part of the deeds.Maybe they aren`t,could you please advise if they are.

I looked up Land Registry and put in the address of a buy to let apartment I own and the next doors details came up.There`s also a mistake in the postcode.

Doesn`t seem too professional.Is the mortgage offer a legally binding document?I know if I make a mistake such as a late payment,they come down

on me like a ton of bricks.

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Hi Apple

 

Many thanks... excellent answer as usual.

 

I hope the viewers have picked up on this issue... and are now safe in the knowledge that should they have a second charge or for sake of clarity a 'SECOND MORTGAGE' on their property... then the same remedy is available to have it determined VOID... by making a further application to the Chamber in relation to that transaction.

 

Ta,


STOP UNLAWFUL REPOSSESSIONS - SIGN THE PETITION NOW

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Hi mollypockets,

 

The Deed is the legal instrument under which your Lender creates their security for their loan. This security is the legal entitlement they have to evict you from your home in the event that are unable to meet your monthly repayments. This is the document that allows them to 'come down on you like a ton of bricks', keeps you in check as you prioritise your finanical world around it.

 

Under the relevant Laws there is due process in completing a Deed, you will have done this either knowingly or maybe unknowingly, only you will know. It is the Deed that legally binds your indebtedness to your Lender and the charge that has been granted as security for your indebtedness and then registered into Law at the Land Registry. Your Mortgage Offer has little or no bearing on this matter, as all your documentation relies on the Deed for its legality.

 

So, what you should do is apply online for a copy of your Deed (offical copy) at the Land Registry and while you await receipt of same I suggest you read the first 30/40 pages of this thread to give you a grounding in relation to the Laws which underpin, Land, Registration, Mortgages and the legal formalities required in relation to Deeds.

 

Once you're up to speed, and need further clarification, you only need to ask, ask here on this thread.

 

Hope this helps.


STOP UNLAWFUL REPOSSESSIONS - SIGN THE PETITION NOW

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Hi Is It Me

 

Can you give viewers of your thread an update to confirm that the application is still going ahead?

 

I think it will be helpful for people to know that you have not given up fighting your friends corner with the application made to the Chamber on behalf of your friend.... and that your thread is still very much alive ; )

 

Apple

 

Thank you apple,

This is very much alive and kicking and as you know people have tried to put me off and I am still here and going all the way lol

So come on board !

Edited by ims21

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thanks Give him a mask,

your time and wisdom is very much appreciated.

I did have a quick look through the first few pages,

its a bit daunting at first because of the "legalease" they use.

I always thought it a tad unfair the fact solicitors have to through

years of college and then training so they can practice or even advise on law,

where as Joe public is deemed to automaticly know it!

but of course,its only when we "step out of (their ) line" that we get the

privilege of being ,,,,,,told some of it,,,,,if you know what I mean,,,

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Northern Ireland is in the process of catching up with England,Wales and Scotland as regards Electronic Registrations,

I was attempting to look up details on the NI Registry web site about a certain property and found it to be some what misleading.

They have a system in place that actually makes the user register the property themselves,If I do a search on a property,I have to

enter all the details such as the lender,price paid,dates when mortgage was created,etc. and it says,even before entering all the

information,no details prior to the date I enter the information,are available.???!!!!!!!

So in effect,I would be registering the whole thing myself and off course I would be responsable for mistakes or whatever.

They deserve a round of applause for that idea.Talk about covering every angle.

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Thanks Is It Me; Thanks GiveHimaMask ; )

 

Yes, there is no hiding place... all transactions (apart from charging orders) to do with securing indebtedness in relation to land must be by deed.

 

As a reminder...

 

no borrower of a registered estate can grant a 'mortgage by demise or sub-demise' and cannot grant any lender a 'legal sub-mortgage'

 

HMLR's 'Approved form of charge' that is accepted by them and relied upon to charge a borrowers registered estate is being challenged to say....it is not a Deed....

 

The application to the chamber makes two points:

 

The lack of statutory power for any borrower to mortgage their registered estate....and.... the lack of any power for any borrower to 'assume' the deed on behalf of the lender by virtue of the amendments made to section 1 (3) and section 1 (2) LPMPA 1989.

 

The Chamber has sent out two un-reported cases to applicants...I have commented on this thread to do with 'lamb' already.... and I will comment to say that I am 100% clear that the case of 'fergus' makes no mention of the amended version of section 1 (3)(b) of the LPMPA 1989 and therefore in that regard - it fails to address the challenge presented to the Chamber....

 

Notably at Para 9 the Judge speaks of how crucial it is to refer to the 1989 Act - but does not refer to section 1 (2) or indeed section 1 (2) (b)..... and makes no mention of the amendments made to that section either... instead he jumps to section 2... in that regard... it is important to re-iterate that the application to the Chamber does not rely on section 2 at all...

 

Further the 'fergus' case speaks of sections 85 at para 7 and also to section 57 of the LPA 1925....and then at para 8 he looks to establishesthat section 85 and its provisions apply to registered land......

 

This is what he says:

 

"The provisions of section 85 of the law of property act 1925 apply to registered land as a charge expressed to be by way of legal mortgage is a disposition within section 23(1)(a) of the land registration act 2002 and by section 27 and schedule 2 of the 2002 Act a legal charge is required to be completed by registration. By section 74 of the 2002 Act the effective date of registration, when completed by an entry in HM Land Registry, has effect from the time of the making of the application"

 

This case and no doubt the above statement will no doubt be relied upon by lenders to look to defeat the challenge made by the application - the application as we all know says that a Borrower has no power to grant a mortgage by demise-sub demise or legal sub-mortgage....by virtue of LRA section 23 (1).....that section makes it clear that mortgages by demise or sub-demise are not permitted within the general law when the estate is registered.....Yet, here it would appear that we have a District Judge essentially looking to re-write the LAW.....

 

If the Statement made by the District Judge is intended to thwart the applications going forward by means of essentially re-writing the Law ...and Lenders make the mistake of relying on it .....then it will be essential to provide for the Lender the understanding that the District Judge made the decision in a court of no record; was misguided as to what is permitted within the general law and that which is not.......section 85 refers to all that which is not permitted within the general law and is all to do with 'mortgages by demise or sub demise'....oh and section 87 is all to do with charges by way of legal mortgage - which is essentially the same thing.....Non of which a borrower has power to grant to any lender.....sorry...but that's a fact.....

 

Here's what LPA 1925 section 85 says:

 

85 Mode of mortgaging freeholds.

 

(1)A mortgage of an estate in fee simple shall only be capable of being effected at law either by a demise for a term of years absolute, subject to a provision for cesser on redemption, or by a charge by deed expressed to be by way of legal mortgage:

 

Provided that a first mortgagee shall have the same right to the possession of documents as if his security included the fee simple.

 

(2)Any purported conveyance of an estate in fee simple by way of mortgage made after the commencement of this Act shall (to the extent of the estate of the mortgagor) operate as a demise of the land to the mortgagee for a term of years absolute, without impeachment for waste, but subject to cesser on redemption, in manner following, namely:—

 

(a)A first or only mortgagee shall take a term of three thousand years from the date of the mortgage:

 

(b)A second or subsequent mortgagee shall take a term (commencing from the date of the mortgage) one day longer than the term vested in the first or other mortgagee whose security ranks immediately before that of such second or subsequent mortgagee:and, in this subsection, any such purported conveyance as aforesaid includes an absolute conveyance with a deed of defeasance and any other assurance which, but for this subsection, would operate in effect to vest the fee simple in a mortgagee subject to redemption.

 

(3)[F1Subsection (2) does not apply to registered land, but, subject to that, this section applies whether or not the land is registered land and whether or not]F1 the mortgage is expressed to be made by way of trust for sale or otherwise.

 

(4)Without prejudice to the provisions of this Act respecting legal and equitable powers, every power to mortgage or to lend money on mortgage of an estate in fee simple shall be construed as a power to mortgage the estate for a term of years absolute, without impeachment for waste, or by a charge by way of legal mortgage or to lend on such security.

I have not pasted subsection (5) of the above statute simply because it is added to section 85 in error....by that what I mean is.....subsection (5) was supposed to be entered into section 81 of the LPA 1925 NOT section 85...

 

See this link for clarification: http://www.legislation.gov.uk/ukpga/1989/34/schedule/1 - which says:

 

"The following subsection shall be added at the end of section 81—

“(5)In its application to instruments made after the coming into force of section 1 of the Law of Property (Miscellaneous Provisions) Act 1989 subsection (1) above shall have effect as if for the words “under seal, and a bond or obligation under seal,” there were substituted the words “bond or obligation executed as a deed in accordance with section 1 of the Law of Property (Miscellaneous Provisions) Act 1989”.

 

so, there you have it......there is no challenge in 'fergus' any more than can be said of 'lamb'.....

 

Butler in 'lamb' mad it clear - he advised at para 33 that litigants should not rely on it....it is a county court decision...a court of no record...

 

and 'fergus'....well.....there is no disrespect intended to District Judge Blunsdon ....but....his decision looks to have shoe horned section 85 where and when it simply did not and could not ever apply in relation to a registered estate....not within the permitted general law....and further totally ignored the amended version of the LPMPA 1989 section 1 (3)(b) and section 1 (2) (b).....sorry to have to say it; but these are just a few of the glaringly obvious FACTS that I have drawn from it.........

 

It would be remiss of any lender to rely on either of the decisions of 'lamb' or 'fergus'......best to see what else they can pull out of the bag before Is It Me's friends case gets to a hearing .......

 

Apple


[COLOR="red"][B][CENTER]"Errors do not cease to be errors simply because they’re ratified into law.” [/CENTER][/B][/COLOR][B][CENTER] E.A. Bucchianeri[/CENTER][/B]

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Hi mollypockets,

 

If you are in NI, you can get a copy of your deeds at, Land Registry, Lincoln House, Great Victorai Street, Belfast, just uo from the Europa Hotel. You can call in, give the address, pay the fee and they will print them off as you wait.

 

If you follow Apples explanation of the Legal sections referred to in this thread, you'll be well informed.


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Thanks Is It Me; Thanks GiveHimaMask ; )

 

Yes, there is no hiding place... all transactions (apart from charging orders) to do with securing indebtedness in relation to land must be by deed.

 

As a reminder...

 

no borrower of a registered estate can grant a 'mortgage by demise or sub-demise' and cannot grant any lender a 'legal sub-mortgage'

 

HMLR's 'Approved form of charge' that is accepted by them and relied upon to charge a borrowers registered estate is being challenged to say....it is not a Deed....

 

The application to the chamber makes two points:

 

The lack of statutory power for any borrower to mortgage their registered estate....and.... the lack of any power for any borrower to 'assume' the deed on behalf of the lender by virtue of the amendments made to section 1 (3) and section 1 (2) LPMPA 1989.

 

The Chamber has sent out two un-reported cases to applicants...I have commented on this thread to do with 'lamb' already.... and I will comment to say that I am 100% clear that the case of 'fergus' makes no mention of the amended version of section 1 (3)(b) of the LPMPA 1989 and therefore in that regard - it fails to address the challenge presented to the Chamber....

 

Notably at Para 9 the Judge speaks of how crucial it is to refer to the 1989 Act - but does not refer to section 1 (2) or indeed section 1 (2) (b)..... and makes no mention of the amendments made to that section either... instead he jumps to section 2... in that regard... it is important to re-iterate that the application to the Chamber does not rely on section 2 at all...

 

Further the 'fergus' case speaks of sections 85 at para 7 and also to section 57 of the LPA 1925....and then at para 8 he looks to establishesthat section 85 and its provisions apply to registered land......

 

This is what he says:

 

"The provisions of section 85 of the law of property act 1925 apply to registered land as a charge expressed to be by way of legal mortgage is a disposition within section 23(1)(a) of the land registration act 2002 and by section 27 and schedule 2 of the 2002 Act a legal charge is required to be completed by registration. By section 74 of the 2002 Act the effective date of registration, when completed by an entry in HM Land Registry, has effect from the time of the making of the application"

 

This case and no doubt the above statement will no doubt be relied upon by lenders to look to defeat the challenge made by the application - the application as we all know says that a Borrower has no power to grant a mortgage by demise-sub demise or legal sub-mortgage....by virtue of LRA section 23 (1).....that section makes it clear that mortgages by demise or sub-demise are not permitted within the general law when the estate is registered.....Yet, here it would appear that we have a District Judge essentially looking to re-write the LAW.....

 

If the Statement made by the District Judge is intended to thwart the applications going forward by means of essentially re-writing the Law ...and Lenders make the mistake of relying on it .....then it will be essential to provide for the Lender the understanding that the District Judge made the decision in a court of no record; was misguided as to what is permitted within the general law and that which is not.......section 85 refers to all that which is not permitted within the general law and is all to do with 'mortgages by demise or sub demise'....oh and section 87 is all to do with charges by way of legal mortgage - which is essentially the same thing.....Non of which a borrower has power to grant to any lender.....sorry...but that's a fact.....

 

Here's what LPA 1925 section 85 says:

 

85 Mode of mortgaging freeholds.

 

(1)A mortgage of an estate in fee simple shall only be capable of being effected at law either by a demise for a term of years absolute, subject to a provision for cesser on redemption, or by a charge by deed expressed to be by way of legal mortgage:

 

Provided that a first mortgagee shall have the same right to the possession of documents as if his security included the fee simple.

 

(2)Any purported conveyance of an estate in fee simple by way of mortgage made after the commencement of this Act shall (to the extent of the estate of the mortgagor) operate as a demise of the land to the mortgagee for a term of years absolute, without impeachment for waste, but subject to cesser on redemption, in manner following, namely:—

 

(a)A first or only mortgagee shall take a term of three thousand years from the date of the mortgage:

 

(b)A second or subsequent mortgagee shall take a term (commencing from the date of the mortgage) one day longer than the term vested in the first or other mortgagee whose security ranks immediately before that of such second or subsequent mortgagee:and, in this subsection, any such purported conveyance as aforesaid includes an absolute conveyance with a deed of defeasance and any other assurance which, but for this subsection, would operate in effect to vest the fee simple in a mortgagee subject to redemption.

 

(3)[F1Subsection (2) does not apply to registered land, but, subject to that, this section applies whether or not the land is registered land and whether or not]F1 the mortgage is expressed to be made by way of trust for sale or otherwise.

 

(4)Without prejudice to the provisions of this Act respecting legal and equitable powers, every power to mortgage or to lend money on mortgage of an estate in fee simple shall be construed as a power to mortgage the estate for a term of years absolute, without impeachment for waste, or by a charge by way of legal mortgage or to lend on such security.

I have not pasted subsection (5) of the above statute simply because it is added to section 85 in error....by that what I mean is.....subsection (5) was supposed to be entered into section 81 of the LPA 1925 NOT section 85...

 

See this link for clarification: http://www.legislation.gov.uk/ukpga/1989/34/schedule/1 - which says:

 

"The following subsection shall be added at the end of section 81—

“(5)In its application to instruments made after the coming into force of section 1 of the Law of Property (Miscellaneous Provisions) Act 1989 subsection (1) above shall have effect as if for the words “under seal, and a bond or obligation under seal,” there were substituted the words “bond or obligation executed as a deed in accordance with section 1 of the Law of Property (Miscellaneous Provisions) Act 1989”.

 

so, there you have it......there is no challenge in 'fergus' any more than can be said of 'lamb'.....

 

Butler in 'lamb' mad it clear - he advised at para 33 that litigants should not rely on it....it is a county court decision...a court of no record...

 

and 'fergus'....well.....there is no disrespect intended to District Judge Blunsdon ....but....his decision looks to have shoe horned section 85 where and when it simply did not and could not ever apply in relation to a registered estate....not within the permitted general law....and further totally ignored the amended version of the LPMPA 1989 section 1 (3)(b) and section 1 (2) (b).....sorry to have to say it; but these are just a few of the glaringly obvious FACTS that I have drawn from it.........

 

It would be remiss of any lender to rely on either of the decisions of 'lamb' or 'fergus'......best to see what else they can pull out of the bag before Is It Me's friends case gets to a hearing .......

 

Apple

 

Oh dear ,

Once again Apple has shown, the light lol

After all it is Xmas

This is again a way of putting people off and you have to ask why are they using cases which are un-reported and do not even deal with the points raised?.

I look forward to these question being answered where they matter THE CHAMBER and were the answers will not be turned to fit or any other way of trying to change the LAW by the back door.

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Hi Is It Me / Apple,

 

A copy of decision published in the past few days, just for your records

 

Anyone doubting that the judicary will let the implications of a decision overide the Law...READ THIS.

 

 

 

Neutral citation No: [2013] NIMaster 19

Ref:

2013NIMaster19

 

 

 

Judgment: approved by the Court for handing down (subject to editorial corrections)

Delivered:

09/09/2013

 

 

 

 

 

 

2009 No 89199

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

CHANCERY DIVISION

----------

 

BETWEEN:

GE MONEY SECURED LOANS LIMITED

Plaintiff;

and

 

1. GERALD JAMES MORGAN (otherwise GERALD MORGAN)

2. KAREN MARTINA MORGAN (otherwise KAREN MORGAN)

 

Defendants.

----------

MASTER ELLISON

 

[1] This is an application for leave to enforce a suspended order for possession made on 11 January 2010 pursuant to a charge registered as a burden on a Land Registry folio. The dwelling is the home of the defendants and they are its registered owners. The charge was registered in the folio on 6 August 2007 and secured a credit agreement (“the agreement”) regulated by the Consumer Credit Act 1974 and dated 12 April 2007 on the strength of which the plaintiff granted to the defendants a total loan facility of £15,845 with a monthly rate of interest 1.229% per month (variable) repayable over a period of 50 months. At the date of the affidavit grounding the suspended order and sworn on 7 October 2009 the interest rate was then stated to be 0.833 per cent per month. At the date of the hearing on 11 January 2010 the amount of the contractual monthly instalment was stated to be £387 and the arrears £3,770, the last payment having been made on 7 January 2010 for £50, and the balance outstanding under the agreement and charge was stated to be £13,814. At that hearing, at the request of the plaintiff’s solicitors, neither defendant being in attendance or represented, an order for possession was made but suspended on the terms that the defendants pay £546.50 monthly (all-in so as to include the normal monthly instalment and a contribution towards the arrears).

 

 

[2] At the hearing on 24 July 2013 of the plaintiff’s application for leave to enforce that suspended order Mrs Quinn, solicitor from the firm McCartan Turkington & Breen appeared for the plaintiff and Miss Brennan of Housing Rights Service also attended as the first defendant had asked for the Service’s assistance which had been given at the initial hearing of the application of 17 April 2013 when the first defendant had attended in person. On 24 July Miss Quinn announced the outstanding balance to be £22,737 and confirmed that the term of the repayment period in the agreement had expired in May 2012, the contractual monthly instalment having been £347 immediately prior to that expiry and the last payment having been £100 on 30 June 2010. At the initial hearing of the application for leave the first defendant had proposed monthly instalments of £350 each and the last payment was announced (contrary to what was said at the hearing on 24 July) as having been £594 in October 2011. At that first hearing Miss McNally of Housing Rights Service had explained that the arrears had arisen and the default of the terms of the suspended order had occurred because of bad money management which also involved other, unsecured, debts. At the second and final hearing before me on 24 July Miss Brennan explained that she had had some difficulty in obtaining recent instructions from the first defendant, who had told Housing Rights Service on 19 June that he was concerned that he would lose his job inside the succeeding few months. He had also informed Housing Rights Service that there were approximately £2,000 of arrears of instalments on his first mortgage with Preferred Mortgages PLC (“Preferred”). There was no financial statement available at hearing but Mrs Quinn for the plaintiff said that from an earlier financial statement there would appear at that time to have been a satisfactory level of income for the defendants but no payment was being made on her client’s second mortgage.

 

 

[3] However, it was also explained that the estimated value of the property was £135,000 and the amount due on the first mortgage, at some £155,000, meant that there would be no equity whatsoever available for the plaintiff in the event of a sale. When I asked why in such circumstances the plaintiff was seeking leave to enforce a suspended order for possession the plaintiff’s solicitor (having agreed that the situation for her client was one of total negative equity) indicated that the plaintiff was not intending to lease the property and accepted that it would not be in a position to sell, but one course that it would consider in the event of an order for possession leading to eviction would be to transmit the keys, and therefore possession, to the solicitors acting for the first mortgagee. Miss Brennan observed that any steps taken to enforce the plaintiff’s order for possession would merely incur additional expense and indebtedness to no benefit for the plaintiff whatsoever.

[4] I agree with Miss Brennan. The traditional reasons for mortgagees to take possession are (predominantly) to sell or (rarely) to protect its security. Though the plaintiff is not minded to rent out the property if it should obtain possession to enforce, I suspect strongly that it would have no power to do so under the relevant provisions of the first mortgage contract and section 18 of the Conveyancing Act 1881. In this connection I refer to my judgment in Swift Advances Plc v Heaney (2010/154636) (the reasoning in which I adopt generally for the purposes of this judgment) handed down earlier today and the decision of Stamp J in Julian S Hodge & Company v St Helens Credit Ltd & Anor [1965] EGD 143 (dealing with the virtually identical provisions of section 99 of the Law of Property Act 1925) quoted therein. I also refer to my judgment in Heaney where it expresses concerns about the prejudice that may be caused to a first mortgagee by granting possession to a second mortgagee who has no prospect in the foreseeable future of having any equity available to it in the event of sale. Whatever the attitude or capacity of the defendants with respect to their mortgage commitments in the present case, in the event that possession were delivered to a plaintiff with no ability to sell, the defendants would be deprived altogether of motivation to make payments on their first mortgage which would be likely to suffer dramatic default or deterioration in the current level (if any) of default. (In that connection, Mrs Quinn mentioned that she had spoken shortly before the hearing to the solicitor for Preferred who indicated that her client had an order for possession which it intended to enforce.) Moreover the first mortgagee, which would at present face a substantial shortfall in the event of sale, would be deprived of all opportunity to come to an arrangement for payment with the borrowers and/or wait until the housing market picks up substantially before obtaining possession and selling. The risk of vandalism would compel it to sell the vacant property at a significant loss whether it wanted to or not. Therefore significant prejudice could be caused to the first mortgagee, which is not a party or notice party to these proceedings, by an order granting this plaintiff leave to enforce.

 

 

[5] The present case is distinguishable from Heaney in that the relief being sought by the plaintiff is leave to enforce a suspended order for possession already made as opposed to a primary order for possession. Accordingly I must consider the legislation relevant to the Court’s discretion to stay orders in general including those for possession in mortgage actions. Sections 86(3) and 55(1)(a)(iv) of the Judicature (Northern Ireland) Act 1978 deal with the circumstances in which a stay of proceedings or execution may be granted and Order 45 rule 9 of the Rules of the Court of Judicature (Northern Ireland) 1980 provides that a court may stay any of its orders on the ground of matters which have occurred since the order in question was made and upon such terms as it thinks just. In the present case it seems likely that the total absence of equity for the plaintiff developed or became apparent or certain only after the suspended order for possession was made on 11 January 2010. Moreover section 3(1) of the Human Rights Act 1998 requires a court to read and give effect to primary and subordinate legislation so far as possible in accordance with the Convention rights of the parties, and the defendants’ rights to respect for their home would (for the time being at least) outweigh the plaintiff’s right to its possessions in the special circumstances of this case.

 

 

[6] Section 86(3) of the 1978 Act enables a court “acting on equitable grounds” to stay any proceedings or the execution of any of its process subject to such conditions as it thinks fit. In his article in NILQ (1986) Vol 37 No 4 Professor Wallace warned against reliance on this provision to defer a legal mortgagee’s common law right to possession (which the plaintiff in this case does not have as its order for possession was on foot of a registered charge) as he considered that the subsection “is merely intended to provide statutory confirmation of pre-existing equitable powers and discretions” which were not used prior to the 1978 Act to defer a legal mortgagee’s right to possession. However this warning disregards the fact that subsection (2)(a) had already addressed explicitly the court’s duty to give the same effect “as heretofore” to “all equitable estates, titles, rights, remedies, reliefs etc” and subsection (2) is expressly stated in terms to be subject (in part at least) to subsection (3) which is not in terms limited by a repetition of “as heretofore” or similar words. Moreover “equity” is rightly stated to be “an equivocal term” in my venerable Wharton’s Law Lexicon (10th Ed, 1902), which added that “the difficulty lies in drawing the dividing lines between the several senses in which it is used.” My 1986 Edition of The Little Oxford English Dictionary defines “equitable” as “fair; valid in equity” but the latest edition omits any reference to the latter meaning of that word as attributed by Professor Wallace to its use in section 86(3) – as does each of the several other dictionaries I have consulted running to less than 1,000 pages. Moreover my Oxford Companion to Law by Professor David Walker (1980) includes the following:-

 

 

“The basic meaning of equity is evenness, fairness, justice … In a secondary meaning the term is used as contrasted with strict rules of law …”

 

(Emphasis added)

 

All of the numerous dictionaries I have consulted specify as the first or only meaning of the word “equitable” the word “fair” (or similar) and it seems reasonable to infer that that is its primary – or, as Professor Walker puts it, basic – meaning. It is plainly possible, therefore, to “read and give effect “ to section 86(3) in a manner compatible with the Convention rights of the parties as required by section 3(1) of the Human Rights Act by attributing to “equitable grounds” the meaning “grounds of fairness”(or similar). However that may be, as appears from the following paragraphs, I am satisfied that the grounds on which I intend to stay enforcement in the present case are “equitable” whether as envisaged by Professor Wallace or otherwise.

 

 

[7] I quote (as I did in Heaney) from the judgment of Mr Justice Deeny in a specific performance action in which he upheld the defence of impossibility in Titanic Quarter Ltd v Rowe [2010] NICh 14:-

“[20] I respectfully agree with the dicta of Megarry VC in Tito v Wadell [1977] Ch 106; [1977] 3 All ER 129 at 311, 312:

 

`it is old law that in specific performance cases “the court will not make any order in vain”. See New Brunswick and Canada Railway and Land Company Limited v Maggeridge (1859) 4 Drew 686 at 699, per Kindersley VC. The usual instances of cases of the courts refusing to make orders that would be useless are cases where the interest that will be obtained by the decree is a very short tenancy, or a partnership which could promptly be determined by the other party.

 

I do not, however, think that the refusal of equity to make futile orders is limited to cases of transient interest. In this case I cannot see what utility there would be for anyone in providing that a small number of isolated plots should be re-planted with coconut and other trees in the hollows beside the pinnacles. It is highly improbable that the coconuts would ever fruit, and the plots would be surrounded by other plots not replanted in this way which would make access difficult or impossible for the owner. It would be a sheer waste of time and money to so this, and I do not think that the court ever should, in its discretion, make an order which it is convinced would be an order of futility and waste.

 

[21] As Lord MacDermott said in connection with the remedy of certiorari in R (McPherson) v Ministry of Education (1973) 6 NIJB, the court should not make an order that will beat about the air.’

 

(Emphasis by underlining added)

 

[8] Moreover in the present case had the Court been aware at the hearing of the application for the Order for possession that total negative equity pertained for the plaintiff, the making of the Order might not have been considered “proper” in accordance with Schedule 7 to the Land Registration Act (Northern Ireland) 1970 which confers a discretion on a court whether to grant a chargee an order for possession of registered land and imposes a duty on the court not to do unless it is satisfied that such a course would be proper.

[9] I am satisfied that an order giving the plaintiff leave to enforce would be an order of futility and waste and that enforcement of the order dated 11 January 2010 should continue to be stayed until the plaintiff obtains evidence at some future date that there would be equity available to justify a sale in the event that leave to enforce is granted.

[10] I will hear submissions as to costs.

Edited by citizenB
spacing

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It never rains,but it pours,,,,

This post maybe slightly off topic but I think you guys (GiveHimAMask,,Apple) know your stuff and its very hard to find honest advise these days.

I will try to make a long story short and to the point.

I had a very traumatic accident on a building site nearly two years ago.A wall was blown over and landed on top of me.

It took a 2 inch strip of hair and skin off my head (didn`t have my hard hat on) I broke two bones in my neck,four bones in my back,caused a lot of bulging of discs between my vertabrae,fractured my skull and caused some bleeding to the front of my brain.Lucky Im not in a wheel chair,,,,I know.

I haven`t worked since and so the inevitable happened as regards my mortgage,I am in arrears.

Last week two letters arrived from a well known solicitors firm (the firms name rhymes with fox) one for my wife and one for me.I noticed straight away,through the window on the envelope "FIRST CLASS POST"

so, to me ,that meant there must be time sensitive issues and I was right.Inside was an income and expenditure form which had to be filled in and returned with in seven days from receiving it.

I think everyone on this site knows that that these so called companies just can not be trusted.

The letters came on a Saturday and they were dated ,the tuesday before,so on the next working day,Monday,,,,I had to have responded in writing and delivered (totally impossible to do) or else it was off to court,which is now the current position.I didn`t get the form posted until a couple of days later.

Just another fine example of who has the real power in this country!!!!!!!!the BANKERS!!!!!!!!,,,,,,,,

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I forgot to mention,I phoned them on the monday and asked could I go down to Belfast (nearly 40 miles away) and deal with the matter face to face,,,,,the answer I got?,,,"we only deal with such matters by post or phone",,,,,,,,,,,,fair and balanced?????

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might be an idea to start a separate thread for your situation mollypocket - you can always put a link to the thread on this one.


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Thanks anyway,citizenB.

 

Have you ever had that feeling,no matter how hard you try to do the rite thing,,,,

,,,its just not good enough

,,,,I think give up/give in,,,

,,there`s just something wrong with people now-a-days,,

,,,,take,take,take,,,

,,lies,lies,lies,,,,

,,,I find it hard to believe sometimes that these people making all these demands and blatant lies are doing it for a basic salary

and are just either too dumb or brainwashed to realise that they are just pawns being played by their paymasters,to do their dirty work.

 

The most important fact to remember in every thread and every post on this entire site is,,,,

,,people who pay "bills" as in gas bills or electric bills etc,,,

actually unwittingly,

pay it with their own bill,

,,,be it a dollar bill or a sterling bill or euro bill AND NOT ONE UNIT of this so called money is going to a human being!!!

 

It all goes to a corporation.

A corporation is similar to a machine,,

,,,no feelings,,,,

,,so I guess the workers who feel nothing,

 

when they are lying and cheating you out of your home (for absolutely nothing extra on top of their normal measely pay-cheque)must be doing it for kicks,a power-trip,,

 

,,,i.e,they become corporatised,party to the machine,loose the ability to "feel feelings",

,,,,,,,,,A CORPSE,,,

,,hence the origin of the word "CORPoration"

I kid you not!

 

I apologise in advance to the CAG team and please rest assured,

this is my last off-topic post in this thread

 

but please understand the reason for my rant here

and not an alternative thread,

 

that being an UN-corporatised poster who goes by the handle

 

"Apple"

 

Every now and then

,there will be an exception to the rule.

 

That rule being "the system".

 

I find it extremely refreshing that someone with his knowledge is/has and continues to put the time

and effort into sharing his vast knowledge with the rest us

and in quite an unassuming way despite relentless attempts to gode him astray.

 

I think it would not be fair to exclude ever helpful GiveHimAMask,

 

I think we can all agree on at least one point,,,,

 

,,any chance of you two gettin the banter goin again

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I hope you have started your own thread mollypockets so you can be assisted.

 

Sometimes it feels like everything is against you but it's a free market

and even though the little idiots employed by these people annoy the hell out of me

at least they are just trying to do a job and support their own families.

 

Like any job that involves dealing with people in hardship or ill health they have to harden themselves to it

and do what they are employed to do.

 

It's very easy to lay blame at the feet of everyone but you should also accept that you could lead an alternative life

and live in a system that provides nothing but what you can manufacture yourself.

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GiveHimaMask.

 

I've pondered quietly over what you've posted and can't see what that has to do with anything. How does that relate to the deeds? It's just suspended until there is equity. I had the same thing with a Charging Order and Order for Sale. It was not enforced because of the lack of equity and they were NOT given liberty to restore. It took some doing, some engineering and a sprinkle of fairy dust to play it to my advantage and be as savvy as they were.

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GiveHimaMask.

 

I've pondered quietly over what you've posted and can't see what that has to do with anything. How does that relate to the deeds? It's just suspended until there is equity. I had the same thing with a Charging Order and Order for Sale. It was not enforced because of the lack of equity and they were NOT given liberty to restore. It took some doing, some engineering and a sprinkle of fairy dust to play it to my advantage and be as savvy as they were.

 

That's exactly what it is. I've had plenty of similar cases suspended for similar reasons.

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I know you have seen it Sequensi, day in and day out by nature of what you do. I can see the issue with the deeds but not the clouding and needing to keep digging over. It's pretty simple and people tend to overthink instead of going with the basics. What has been raised will be judged and until then it's no good pulling it apart.

 

If the guys on here have so much faith in what they believe is true then they would just let it be and await the outcome. What more can you add to a deed being unsigned? That's the be all and end all. And if you look at cases that have gone into detail everything has been struck out apart from the matter in hand. If need be change the equity by fair means or foul.

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hi Crapstone,

 

The signifance of this case is that it is a High Court judgement, you could say case law, now in the public domain. It will help people in similiar circumstances with a 2nd charge on their home.

No need, to go digging around, wrecking your brain, trying to find a way out. Given that this is a NI case and reports state that at least 75% of homes are in negative equity there, then this has a substantial impact for those who seek the time necessary to find a rebalance in their lives and the removal of one element of stress helps greatly I would have thought.


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Hi molloypockets,

Nothing wrong with getting it of your chest, but you know what they say, 'Don't get mad... Get Even'.

 

I see that you are under pressure at the moment , care to say who your Lender is, to see if something can be done???


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Hi Seq,

 

I hear you, but can you show a judical decision in relation to 2nd charges, you now, one were the Lender has gone all the way and permitted publication in the public domain of its failure to exercise its security. I would have thought that if this was the case then all those on the cag with 2nd charge issues could have been directed to them and save them some stress???


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hi Crapstone,

 

The signifance of this case is that it is a High Court judgement, you could say case law, now in the public domain. It will help people in similiar circumstances with a 2nd charge on their home.

No need, to go digging around, wrecking your brain, trying to find a way out. Given that this is a NI case and reports state that at least 75% of homes are in negative equity there, then this has a substantial impact for those who seek the time necessary to find a rebalance in their lives and the removal of one element of stress helps greatly I would have thought.

 

I can see your point but it's hardly ground breaking and just follows common sense. You can't enforce something when there is nothing to enforce against other than to the detriment of another interested party. It's hardly a win win situation and you'll also note that they have liberty to restore if there is an improvement in equity. And of course there will be if they maintain the mortgage but I guess it buys them some time.

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I can see your point but it's hardly ground breaking and just follows common sense.

 

Sadly Crapstone, common sense in courtrooms is not very common.

 

Try and have a Happy Christmas everyone.

 

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Hi Seq,

 

I hear you, but can you show a judical decision in relation to 2nd charges, you now, one were the Lender has gone all the way and permitted publication in the public domain of its failure to exercise its security. I would have thought that if this was the case then all those on the cag with 2nd charge issues could have been directed to them and save them some stress???

 

We've never seen a situation like this go to appeal, but I can have a look and see if there is anything I can find over the holiday period (I'm crazy busy so it may take a while).

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