Repossession questioned by deeds not being signed

[Peterbard]

OR section 23 (1) could be concerned with the owner of the estate, and his ability to create a charge on his property, which he can then offer to a lender as security for a loan via way of a mortgage.

 

And section 23(2) could be to do with the way that the owner of the charge(the lender )can use that charge as security to raise a loan from a another source ,( a sub charge)in his own right.

Of course a mortgage would be out of the question in this as the estate would not be held in total by the lender, just the charge.

 

However this is just what the legislation says, the way it actually works and incidentally what has enabled countless thousands of people to secure mortgages over the years.

 

So it probably means something completely different

[Peterbard]

Errrrmmmm.....yeah right..ok????

 

check the legislation again......best to be mindful of misconstruing the law.....that's what unscroupulus lenders do....

 

Apple

 

Yes and some will meaning but deluded amateurs also.

 

 

 

 

 

 

 

;0

[Peterbard]

Hello Dodgeball

 

I found this post on CAG that might interest you

 

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?197424-Mortgage-Securitisation-Paragon-V-Pender-Title-to-Sue-Judgements-For-Debate-amp-Discussion&p=4171099&viewfull=1#post4171099

 

"Once that 'registrable disposition' (transfer) is registered at HMLR it operates in law to transfer a separate legal estate to the Lender - the lender is the 'owner' of that estate - he is not the 'owner' of the Borrowers legal estate = the legal estate of the Lender means he can exercise the 'owenrship' rights granted within the provision of the LRA 2002 s.23

 

(2)Owner’s powers in relation to a registered charge consist of—

(a)power to make a disposition of any kind permitted by the general law in relation to an interest of that description, other than a legal sub-mortgage, and

(b)power to charge at law with the payment of money indebtedness secured by the registered charge."

 

 

Read the bit from "Lender means he can exercise the 'ownership' rights granted within the provision of the LRA 2002 s.23 and note the reference to

 

s.23(2)

 

Funny thing is, it was Apple that said the above

 

Is It Me? subsequently thanks Apple for posting the above.

 

Looks like someone has trouble making their mind up about the law or this is evidence that someone interprets the law differently whenever it suits them.

 

When it suits Apple for one purpose s.23(2) are the lenders powers and when it doesn't suit Apple s.23(2) aren't the powers of the lender - some might call that convenient - Either way Is It Me ? agrees with Apple ;-)

 

Yes Ben this is what gives me the feeling that we are being "wound Up". After all it is not a particularly complicated piece of legislature.

 

Section 23 , the first part deals with the owner of the property and his right to create a charge, subsection two deals with the rights of the subsequent owner of that charge, simple really.

 

It is well explained in the authority posted on here numerous times by both of us. Tellingly there is no external authority at all which supports any other view, odd that.

[Peterbard]

So what if it could mean something totally different? It could mean that the lender can't mortgage the estate in their own right or that once registered the owner can't then divide the mortgaged estate for a further mortgage - such as a farmer mortgaging a barn or field when it is already part of a mortgaged estate.

 

Either way I pretty much give up caring as this isn't going to change millions of mortgages and how they have been formed and accepted. Even if you win, the mortgage companies are just going to argue the same and that the law was not clear enough to them either. Any loophole will be fixed, ( as it doesn't look to me as though the person that wrote it meant that a mortgage should not be secured because of a,b, or c!) and it's just a case of moving on and you'll still have to pay the debt back.

 

If Is It Me spent more time going through their 'friends' accounts, statements and contract they'd find far more concrete reasons to not have the house repossessed. I'm in the process of getting the charge removed on mine as I have proof that payments were actually 3 months ahead when they went to court and that we are now over 4 years ahead, at todays rates, without even overpaying by a penny more than asked. Go figure that out!

 

No I think if it meant such a thing then that is what it would say, also there would be commentary to that effect, there isn't.

 

I agree that examining the contract is probably a far more productive way of finding evidence of wrong doing by the lender and possibly halting enforcement, particularly if it is a CCA regulated second charge.

[Peterbard]

The good thing is that these little debates won't keep going around in circles for much longer. Hopefully Apple will accept (although I doubt it) the view of the property chamber.

 

I wonder what will then be said... I might need extra strength headache tablets on that day.

 

I realize that this is the OPs thread so this is probably off topic. But there are far more interesting aspects of this as raised in some of the case law you posted IMO. Unfortunately this thread does not seem to be able to get past the basic aspects of the registration, so discussion of things like the enforceablity of sub mortgages , or mortgages which have an attached sub mortgages cannot be sensibly discussed.

Perhaps a different thread ?

[Peterbard]

There is a lot of misleading going on on here but not from Ben.

 

Also it is not "doing the right thing", to encourage people to follow a course of action based on some half baked absurd arguments which have no chance of success.

 

Personally I admire Ben's stamina, I would have given up long ago and left you to your just deserts.

[Peterbard]

Can I also just add

 

I am no spelling or grammar Nazi but somethings really do wind me up

your and you're is one of them

 

I also don't do cryptic and comments such as "as you know" help no one and surely that is what we are here for

 

Also I think we have politicians in the house as so many questions that are asked are never answered

 

Hi Fletch and welcome

 

Grammar is not my strong suit either(you may have noticed, but what really gets my goat is the habit some people have of using repeated periods........... in order to give ....their.... generally mundane...comments... more...........gravitas.(you know who you are )

[Peterbard]

The recent posts make interesting reading ; )

 

However, Speculation did not and will not win the Battle!!!

 

I personally have no issue with who is who - who they work for nor who they do not work for.....it is to me - irrelevant.

 

Spelling is not at issue here - this Thread is not about one's 'spelling' ability - The application before the Chamber does not raise spelling as an issue.

 

The FACTS are:

 

The deed is VOID - to which there is NO DEFENCE.

 

The mortgage is VOID - to which there is NO DEFENCE

 

The DECISION is IMMINENT - to which latent posters will have NO DEFENCE

 

Apple

 

HMMM

 

Personally, I would be far happier if there were some logical rationale to support your convictions.

[Peterbard]

 

Having failed to prove your point in your own thread - you now seek (it would appear) to disprove any legislation - any comment - even (lord forbid) typographical errors and grammar are made an issue and made worthy of debate..... whatever next??

 

e

 

I think that this is the problem Apple, you seek to promote your "point", at any expense ?

 

Many of us seek to acquire evidence so that we can arrive at a logical conclusion, as opposed to making a conclusion and then trying to justify it by wrongly interpreting the evidence.

 

Just a couple of observations

[Peterbard]

Hi Caro

 

I can understand your line of questioning here and why you may be confused.

 

As I understand it - Is It Me is referring to the Deed issue raised in the Chamber.

 

I also understand from Is It Me's previous post that the 'mortgage' issue has 'merit' by virtue of LRA s.23......simply put - we argued that Is It Me's Friend had no statutory power to 'mortgage' by demise or sub-demise - reading between the lines - it would seem the Judge has accepted that argument - due to the Lender having NO DEFENCE on that point.

 

 

Hang on a minute, this would be a beach of section 23(1). if indeed this was a mortgage by demise, this is a different argument to the, no mortgage allowed on a registered mortgage or the borrower owns the charge nonsense.

 

Are you now saying that the lender has engaged in a mortgage by demise under section 23(1) in breach of the legislation.

[Peterbard]

Yes, I see your point....however; leopards do not change their spots......a mortgage is a mortgage whichever century you are in.......

 

It matters not how a lender looks to 'shoehorn' a 'mortgage' to fit......the Law says a Borrower has no power to mortgage......no power to grant a charge by way of legal mortgage - for a charge by way of legal mortgage has the same effect as a mortgage by demise or sub demise.....

 

HLMR's approved form of charge does not meet the formalities necessary for a Deed...The Lender has not executed it....

 

It is regrettable that the 'common practices' have been overlooked for many years......However, it's good that we are debating this topic and are able to define for both the Lender and the Borrower that the Deed is void....and is apt to be set aside.....

 

 

Apple

 

I do hope your not basing your argument on this belief, a mortgage by demise ins not the same as a charge secured by the way of a mortgage, if they were they would not be separated in both the LRA and the LOPA.

[Peterbard]

Here is the LRA s.23 (1) ....

 

(1)Owner’s powers in relation to a registered estate consist of—

(a)power to make a disposition of any kind permitted by the general law in relation to an interesticon of that description, other than a mortgageicon by demise or sub-demise, and

(b)power to charge the estate at law with the payment of money.

 

 

Where and why are you taking issue with the word "or"

 

Both the Definition in LPA 1925 s.205 (xvi) and the LRA s.23 (1) have the word "or" included ....

 

Pray tell - why do you take issue with the word "or"???

 

 

Apple

 

This was pointed out to you last November(yes I have read the whole thread) by steampower, there has been authority pointed out to you explaining why the old style mortgage was withdrawn and scrapped when the 2002 legislation came into force. The fundamental differences between the two arrangements have been pointed out to you.

I have to say that you must be either too stupid or just to arrogant to actually read and admit that you may be mistaken.

 

I do not blame people for getting annoyed with you, and also I do not blame anyone for checking up on any information that you impart.

[Peterbard]

Oh boy how I love being patronised!

 

Oh and why should it be of no issue to me or does the mighty applecart deem me unworthy or trying to expand my knowledge

 

I wouldn't look to Apple here to expand you knowledge fletch, actually she could learn an awful lot from you.

[Peterbard]

Won't do any good Ben

[Peterbard]

I know this will do no good however http://www.practicalconveyancing.co.uk/content/view/7808/0/

 

Under the LRA 2002, the owner of a registered estate cannot create a mortgage by demise or sub-demise (section 23(1)(a)). The only way to create a legal mortgage is by a charge by way of legal mortgage (pursuant to sections 85(1) and 86(1) of the LPA 1925) or by charging the estate at law with the payment of money (section 23(1)(b) of the LRA 2002). When registered, a charge has effect, if it would not otherwise do so, as a charge by deed by way of legal mortgage (section 51 - equivalent to section 27(1) of the LRA 1925).

 

The proprietor of a registered charge cannot create a "legal sub-mortgage" i.e. a transfer by way of mortgage, a sub-mortgage by sub-demise or a charge by way of legal mortgage (sections 23(2)(a) and 23(3)). The proprietor does have the power to "charge at law with the payment of money indebtedness secured by the registered charge" (section 23(2)(b)). The registered proprietor of a subcharge has, in relation to the property subject to the principal charge, the same powers as the principal chargee (section 53).

[Peterbard]

I knmow it is a bit late to be starting an other topic, but putting aside the doomed deed thing for a minute.

 

If it were possible to have the deed declared void what about the credit agreement, it would not make that void would it ?

 

Would the lender not just take an action to enforce this and then seek a charging order once he had achieved a CCJ ?

[Peterbard]

The above isn't that complicated is it ? - anyway film is about to start Bank Job on ch4+1 great film

 

Oh no just switched it on , all those naked bodies, made me spit out my cocoa. i will watch my recordings of family guy I think

[Peterbard]

Hi Ben

 

It's a good thing that viewers are more than capable of making up their own minds...... you know you have taken the reference made out of context ; )

 

But Hey ho...that's the Ben we have all come to know folks ; )

 

Apple

 

Nope all the dozen or so references quoted to confirm this fact are all precisely in context

 

Really you do ot need the explanatory notes just read the legislation, it does what it says on the tin.

[Peterbard]

Ah, hello Dodgeball.... here you are - phew... I was getting all confused what with all that head banging and movies and naked bodies and all - crikey almost had an heart attack ; )

 

In answer to your question..... we have yet to see an agreement....so how are they going to get a CCJ off the back of one of those???

 

Apple

 

just because you haven't sen one does not mean that one does not exist , it must have if money changed hands.

 

Even if the charge was proven to be void(which will not happen) there is still then a matter of the outstanding finance, do you think they will just give it up ?

[Peterbard]

Hi Dodgeball, Thank you for confirming (#4776) that you have read this thread from the beginning. I would assume that having read the above post that you might have formed an opinion, would you be kind enough to share that opinion? BPhttp://www.cml.org.uk/cml/consumers/homebuy/homebuy2

 

 

Who knows it is guidance not statute, they may be referring to the contract rather than the deed,(as per Lamb) or they may just have got it wrong. Who knows.

 

I have had several mortgages and the deed has never been signed by the lender, in fact looking at my deed there is not even any space for a lenders signature.

 

In a contractual sense, lenders signatures do not generally have to be there in order for the agreement to be properly executed, if there is consideration.

[Peterbard]

That's your opinion..... ; )

 

Do I think they will just give up??.......if the chamber determines the deed is void and sends written notice to the Registrar to remove the Lenders charge......the purported security goes.......if they then take the matter to court to seek a CCJ for the 'debt'......and they cannot put forth a valid agreement......I'd have thought they would have great difficulty in doing anything other than to give up.......who's to know though......I cannot pre-empt what a lender will or will not do......??

 

Apple

 

Yes, creditors do pursue debts without the written documentation being present, and courts do enforce on balance of probability that an agreement must have been made.

They do not like debtors being unjustly enriched, and then there is the lenders human rights as in Wilson at the lords, peaceful enjoyment and all that.

[Peterbard]

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].

 

Statute

[Peterbard]

Hi Dodgeball, Are you saying it is your opinion that a trade association for the mortgage lending industry, with over 95% of the UK residential mortgage lenders signed up to it have not based their finding that both parties need to sign the deed, on Statute? BP

 

No I am saying that the above court ruling and statute is.

[Peterbard]

Thought I'd just quickly revisit the lamb case - if the CML guide this:

 

"If your conveyancer is also acting for your lender, they will check that the lender's requirements are met and 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. "

 

and the statute says this:

 

LPMPA 1989 s.2:

 

(1)A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.

 

(3)The document incorporating the terms or, where contracts are exchanged, one of the documents incorporating them (but not necessarily the same one) must be signed by or on behalf of each party to the contract.

 

and then the LPMPA 1989 at section 4:

 

(4)Where a contract for the sale or other disposition of an interest in land satisfies the conditions of this section by reason only of the rectification of one or more documents in pursuance of an order of a court, the contract shall come into being, or be deemed to have come into being, at such time as may be specified in the order.

 

(6)In this section—

 

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

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

 

LPA 1925 definition of 'disposition' is:

 

“disposition” includes a conveyance and also a devise, bequest, or an appointment of property contained in a will; and “dispose of” has a corresponding meaning;

 

LPA 1925 definition of conveyance is:

 

“Conveyance” includes a mortgage, charge, lease, assent, vesting declaration, vesting instrument, disclaimer, release and every other assurance of property or of an interest therein by any instrument, except a will;

 

so, how does s.53 have anything to do with the 'terms and conditions' never mind the Deed??

 

Why, or how did the Courts miss the highlighted sections in the lamb case - Helden - Eagle Star etc.....

 

It does appear that section 2 can apply to the 'document' that contains the 'terms and conditions'.......?? Not sure if 'lamb' picked up on that point??......perhaps the lambs should have put forth the 'terms and conditions' to show that this was the document that should have been signed by the Lender and themselves ........Not the Deed......(for reliance on S.2)..... the Deed relies on other statute of course for its validity.

 

Could that be the 'error' of LAW worth taking to 'appeal'???

 

I think lamb did proceed on section 2 and section 27 (f) surely the courts could or should re-consider the decision???

 

NOT THAT WE RELY ON S. 2 of course......but, for those that have.....the highlighted sections do appear to make sense in relation to the 'terms and conditions'...... which invariably are not attached to the official copy held at HMLR BTW (the 'IT' as referred to by Ann McAllister in the garguillo case- just my thoughts)

 

Apple

 

p.s - wonder if Enforcer is still around - this titbit may help him in his appeal??

 

There is no error here Apple, accept for yours of course

[Peterbard]

Sorry Dodgeball

 

Please explain where the error is.....I'm happy to amend where necessary

 

Apple

 

I don't think any of us have enough time left to watch you amend all your errors apple, my advice to people is just to treat anything you say as being wrong unless confirmed by someone who understands what they are talking about.

 

Won't go far wrong then