Repossession questioned by deeds not being signed

[bhall]

so, when I say "Charge by way of legal mortgageicon ... the words used have granted a sub-mortgage".... I know exactly what it means...and now....so do you.... : )

 

Apple

 

Then you must be fully aware that a sub mortgage is a mortgage of a mortgage. When a borrower grants a charge to the lender it is not a mortgage of a mortgage, just a mortgage. How can a mortgage granted to a lender by a borrower be classed as a sub mortgage ?

 

A borrower as you must be aware is unable to grant a mortgage on a mortgage they have given to the lender already.

[bhall]

......where Ben tells you that the definition of a mortgage by demise or sub demise defined is 'different' due to the definition at section 205 says: "or" a 'charge by way of legal mortgage.......this is not because it is 'different'........it is stated in that way because ......the definition of a 'charge by way of legal mortgage has the 'same effect' as a mortgage by demise or sub-demise.....so, because the 'charge by way of legal mortgage' has the 'same effect' it's definition is included alongside the definition of a mortgage by demise, or sub-demise....Not because a Borrower is 'allowed' or has power to grant such a disposition as Ben would have you believe....

 

It is true that a charge by legal mortgage has the same effect as a mortgage by demise. However, just because two things have the same effect it does not mean they are the same thing. The legislation is crystal clear that a legal mortgage can be a charge by way of legal mortgage.

 

When I am hungry, I could eat a beef burger from McDonalds or a beef burger from Burger King. They are both beef burgers and both will have the same effect of not making me hungry anymore. However, whilst both being beef burgers, a beef burger from McDonalds is different from a beef burger from Burger King.

 

Please excuse my rather simplistic analogy however, I think it is the only way I can make this distinction clear at this time.

[bhall]

Without wishing to state the obvious -

 

A deed for a charge by way of legal mortgage, does not involve any conveyance of the property to the lender, as a deed for a mortgage by demise / subdemise would.

 

A deed for a charge by way of legal mortgage grants sufficient rights over the property to the lender to enable them to enforce their security, for instance by taking possession of the property or selling it.

 

A charge by way of legal mortgage may have the same effect as a mortgage by demise (s.87 of the LPA 1925) but it does not convey the same thing to the lender - being the actual property.

 

87 Charges by way of legal mortgage.

 

(1)Where a legal mortgage of land is created by a charge by deed expressed to be by way of legal mortgage, the mortgagee shall have the same protection, powers and remedies (including the right to take proceedings to obtain possession from the occupiers and the persons in receipt of rents and profits, or any of them) as if

—

(a)where the mortgage is a mortgage of an estate in fee simple, a mortgage term for three thousand years without impeachment of waste had been thereby created in favour of the mortgagee; and

(b)where the mortgage is a mortgage of a term of years absolute, a sub-term less by one day than the term vested in the mortgagor had been thereby created in favour of the mortgagee.

 

The same effect you have spoken of is that both a charge by way of legal mortgage and a mortgage by demise grant the lender the same protection, powers and remedies. However, they convey different things to the lender.

Edited August 12, 2013 by bhall

[bhall]

Apple just on a train but have heard that he has papers back from property chamber which gives him a hearing so. Please Ben tell me where and what apple has no done right I have said before you are full of it so please don't waste people's time and hopes as this is going in the right direction and this only confirms it

Will amend letter to the points you raised

Thanks once again

 

Hello Is It Me?

 

I hope you are well

 

I think I have been as clear as I can be in relation to where Apples arguments are flawed. I am sure you don't really want me to go through each one again.

 

Whilst I do wish your friend the best of luck, in terms of the readers of this thread and others apart from your friend that may be considering following Apple's advice, as a hearing has been granted (which will be a matter of public record and freely available to everyone as per the previously posted hearings of the former Land Registry Adjudicator) - The hearing will at the very least clarify which arguments made in this thread are based in law and which arguments are shall we say 'imaginative'.

 

I just hope that your friend, doesn't lose his home by following the advice given in this thread by Apple, rather than the sound, tried and tested advice found in the Home Repossessions forum, or more importantly in the Home Repossession Success forum that is provided by members of the CAG site team.

 

Neither myself or Apple have anything to personally lose by our contributions to your thread (maybe one might get a bruised ego). However, I do find it strange that whilst Apple has directed your friend on a certain course of action, if Apple was so sure of the arguments he/she has posted, why Apple has not challenged his/her own deed, by submitting an application such as the one, Apple has recommended that your friend submit- I am sure there is a reason for that - I am sure Apple does not intend to use your friend as a guinea pig for Apple's theories, with no risk at all for Apple, if those theories are proven at the hearing to be flawed.

 

I would like to say that I am personally very glad that your friend has been granted a hearing and hope that your friend gets the outcome he needs. Either way, it will being a conclusion to the discussions on this topic.

 

Best Regards

 

Ben

Edited August 13, 2013 by bhall

[bhall]

Yes just what you did not want to happen and as you have as I have always stated here never given any help what so ever and I fully believe work for the lenders

And I ask here what advice do you give from stopping some one loading there home and again you say nothing

You can tell your bosses this is one they are not going to win and what would happen when they lose

 

If I worked for the lender or any other party that had an interest in line with that of the lenders, why would I suggest contacting the site team or following tried and tested advice,

 

If I worked for the lender, I would encourage you to follow Apples imaginative, untried and untested advice as it is by far the riskier option for your friend.

To be clear, I do not work for any mortgage provider or any other financial institution.

 

 

However, the hearing will resolve the discussions and arguments within this thread one way of the other.

 

If it turns out, through the course of the hearing that Apples arguments are flawed, will you still think that I work for the lender ? Even if it is shown the information contained in my posts was correct ?

 

Remember, both you and Apple have both joked previously that the initial response from the Property Chamber was identical to the information, I had posted. - You may find that may happen again.

 

Again, I wish your friend the best and hope he does not pay the price for testing Apples theories. I will monitor the relevant sources for the outcome of the hearing, with the hope that your friend succeeds.

 

Ben

Edited August 13, 2013 by bhall

[bhall]

Just having a bit of fun bhall no offense intended... I cant stand McNasty or Nasty King so any opportunity...

 

lol no offence taken UNRAM - I admit my choice of item was poor. However, the over riding principle I was trying to make I feel was clear

 

However, the hearing will show if that principle is correct or not.

 

It will be interesting to see if the Property Chamber's stance changes from it's initial response -being

 

Apple

Here is the full reply;

 

Upon reading(?)lol the application dated 10th may under sec 108(2) of the LR Act 2002

and upon the tribunal considering that the application ought to be stuck out as there is no reasonable prospect of the application succeeding.

 

It is ordered as follows;

 

Her Majesty's land reg is to be removed as the respondent[ person against whom an order is sought] to this application

 

The applicant has until 5pm 16th July to make written representations in relation to the proposed striking out of the application

 

This order is made pursuant to rules 9 and 10 of the tribunal procedure (first tier tribunal property chamer rules 2013.

Reasons,

 

1 The application is to set aside a charge dated xxyyzzz made between (1) Lender and (2) the borrower HM land registry is not a party to that charge. The application is made under sec 108(2) of the LR act 2002. The tribunal has no power to make an order to alter the register when exercising its jurisdiction under sec 108(2).

 

It can only rectify or set aside a document under sec 108(2) and the register of title is not a document for the purpose of that provision.

 

So, HM land registry should not be named in part 3 of the application but the lender should be named instead of HM land registry.

 

Charges do not as a matter of law always require execution by the lender as well as the borrower.

 

The charge is created by the borrower not the lender so generally only requires execution by the borrower.

 

The applicant does not contest that they executed the charge so dated.

 

The charge is not in a form showing it required to be executed by the lender.

The authorities relied on by the applicants concerned whether documents had been properly executed and not whether a lender is required to execute a charge.

 

The land re form of charge CH1 does not require execution by the lender except where a note on the register of an obligation to make further advances has been applied for.

and that's it.

 

what I would say is that there has been no CH1 form nor have they really read the application because it does very clearly state that the lender should execute the deed.

 

I also note is uses the term generally, always and why say the tribunal can not rectify the register because it's not a document?

 

so what do you think apple lets prove your right.

 

Especially in terms of these two points that go to the very heart of this matter

 

Charges do not as a matter of law always require execution by the lender as well as the borrower.

 

The charge is created by the borrower not the lender so generally only requires execution by the borrower.

 

CH1 Form - Legal Charge of a registered estate

 

http://www.landregistry.gov.uk/_media/downloads/forms/CH1.pdf

 

What I find most surprising is that the response you received would seem to have come straight out of Ben's mouth (sorry Ben, but it really does...lol)

 

To be honest, I really began to really consider that it was Ben that you mailed the application to - or maybe, the 'independent' Adjudicator from his 'independant office' passed your application to Ben to respond to?....................lol

 

LOL big time just what I was thinking funny how its word for word. I do not know where the ch1 form came from as like you say sent the ' deed ' with his application

Speak soon

 

As I have said previously the fact that the initial response from the Property Chamber is almost 'word for word' the same as the information I have posted, should be evidence of the accuracy of the information I have posted.

 

The hearing will bring much needed clarity to the information posted in this thread. As I posted previously the decision of the hearing will be a matter of public record and will be accessible to everyone that is interested in this topic. No doubt, in time the decision will be posted in this thread (minus any personal details). Despite, everything I do hope that I am wrong and that your friend is successful

 

I thought it may help IS IT ME? to be given an example of how the Property Chamber delivers it's decision. Whilst this particular decision is unrelated to the topic of this thread, it shows how quickly decisions are made public and the format used by the Property Chamber when delivering its decision.

 

http://www.residential-property.judiciary.gov.uk/Files/2013/July/MAN_00BQ_OAF_2013_1_03_Jul_2013_06_56_57.pdf

 

Ben

Edited August 14, 2013 by bhall
Spelling Mistake

[bhall]

The now infamous MD reference number is a number assigned by the Land Registry to the lender. This reference number confirms that the mortgage deed used by the lender has been approved by the Land Registry for use.

 

As confirmed by the Land Registry's Practice Guidance 30 'Approval of Mortgage Documentation'

 

http://www.landregistry.gov.uk/professional/guides/practice-guide-30#guide-mark-9

 

7 Would you ever refuse to approve a charge?

 

To qualify for approval, a charge must contain or provide for (as the case may be):

• a date
  
• the names and addresses of the borrower(s)
  
• the name and address of the lender, including its company registration number, if any
  
• a description of the property being mortgaged, including its title number
  
• a valid charging clause
  
• a valid execution clause with provision for attestation.
  

We would not approve any charge that failed to satisfy one or more of these criteria.

 

The Land Registry by granting the MD reference number to all of the Lenders that have deeds posted on this topic would appear to be satisfied that each and every one of them does contain a valid charging clause - An example

 

"The Borrower with full title guarantee charges the Property by way of legal mortgage with the payment of all monies which are or may become payable to the Lender by the Borrower, (except monies payable under any agreement whenever made which expressly provides that they are not to be secured by this mortgage)"

 

http://www.accordmortgages.com/documents/ACCL0002MR.pdf

 

MD reference MD740K

 

As for the comments regarding to 'Full Title Guarantee'

 

http://www.legislation.gov.uk/ukpga/1994/36/section/3/enacted

 

3 Charges, incumbrances and third party rights

 

(1)If the disposition is expressed to be made with full title guarantee there shall be implied a covenant that the person making the disposition is disposing of the property free—

 

(a)from all charges and incumbrances (whether monetary or not), and

(b)from all other rights exercisable by third parties,other than any charges, incumbrances or rights which that person does not and could not reasonably be expected to know about.

 

The reference to 'Full Title Guarantee' in relation to a disposition of a charge (the granting of a charge from the borrower to the lender) only means that the Lender asserts that the legal estate is free from other charges and incumbrances etc. It has nothing whatsoever to do with establishing it the mortgage is by demise or by legal charge.

 

For the avoidance of doubt a charge by legal mortgage unlike a mortgage by demise does not involve the conveyance of the property to the lender.

 

Furthermore, the word 'or' does mean the alternative - it never means the same.

 

As confirmed by the LPA 1925

 

“legal mortgage” means a mortgage by demise or subdemise or a charge by way of legal mortgage

 

Don't forget that at section 7 of the Land Registry's own CH1 (which is signed by the borrower as a deed) form it states -

 

"charges the property by way of legal mortgage"

 

The Land Registration Act 2003 confirms

 

http://www.legislation.gov.uk/uksi/2003/1417/article/103/made

 

Form of charge of registered estate

 

103. A legal charge of a registered estate may be made in Form CH1.

 

 

Is It Me? Why not at the very least discuss this matter with Ell-en and Co, what do you have to lose by obtaining a second opinion on the steps you can take to protect your friends home from repossession

[bhall]

eeeerm Ben... who is the 'owner' of first instance? Is it not the Borrower??

 

At which point do we find that the Lender can be 'said' to be owner Ben??? Is it not AFTER the Borrower signs the Deed???

 

Is the Lender who exercising 'owners' powers doing so legally Ben??? or is he doing so because HMLR have accepted invalid charging clauses as valid?? when the law removed any power for the Borrower to confer or for HMLR to give effect to any such power in the Lender????

 

Do you assert that an un-executed deed grants ownership powers to the lender??? that's not what the Law says Ben....

 

eeerm...sorry Ben..... there is no need to take any notice of the information that you post ....it is dismissed...... : )

 

Apple

 

Sorry Apple I thought I made it clear

 

The owner of the charge, once it has been granted by the Borrower is the lender. As such the lender is able to exercise the powers of the owner of the charge.

 

I refer you to the House of Lords that debated the LRA 2002 and amended it before it became law

 

 

http://www.publications.parliament.u...t/11030-13.htm

 

"amendment No. 27 deals with a related matter. Clause 23(2) lists the powers that an owner of a registered charge has to deal with that charge, which will no longer include the possibility of creating a mortgage by demise or sub-demise. The appropriate way of securing a mortgage over registered land is to create a charge. The Bill also simplifies the powers of the chargee to deal with his charge. After the Bill comes into force, the appropriate way to do that will be by way of sub-charge. The amendment would allow the chargee to create a charge by way of a legal mortgage over the charge as well by way of a sub-charge. That would add an unnecessary complication."

 

As I am sure you will appreciate and understand the chargee is the lender and not the borrower

[bhall]

There is no doubt Is It Me that We have come a long way:

Did We Get.....From this:

1] "Upon reading(?)lol the application dated 10th may under sec 108(2) of the LR Act 2002

and upon the tribunal considering that the application ought to be stuck out as there is no reasonable prospect of the application succeeding."

 

To This:

“Apple just on a train but have heard that he has papers back from property chamber which gives him a hearing so. Please Ben tell me where and what apple has no done right I have said before you are full of it so please don't waste people's time and hopes as this is going in the right direction and this only confirms it”

 

Because of comments like this:

3] “As I have said previously the fact that the initial response from the Property Chamber is almost 'word for word' the same as the information I have posted, should be evidence of the accuracy of the information I have posted.”

 

Or Because of my finding that was this:

4] “Yes, my thoughts are that somewhere along the line they are reading the info you have submitted in the application as a request to set aside the registered charge and somewhere along the line you may have unwittingly failed to cause the Adjudicator to recognise or interpret your application for the setting aside of the deed......”

The draft written representation addressed the issue made out in No:‘4’.....the purported ‘accuracy of the information’ was not ever considered an obstacle....and has been ignored by the Property Chamber once they were made to understand what Is It Me’s application was intended to say.....

 

And then agreed by the property chamber when they said this:

 

"1 The application is to set aside a charge dated xxyyzzz made between (1) Lender and (2) the borrower HM land registry is not a party to that charge. The application is made under sec 108(2) of the LR act 2002. The tribunal has no power to make an order to alter the register when exercising its jurisdiction under sec 108(2).

 

It can only rectify or set aside a document under sec 108(2) and the register of title is not a document for the purpose of that provision.

 

So, HM land registry should not be named in part 3 of the application but the lender should be named instead of HM land registry".

 

Now,...... if Ben in his many posts had guided Is It Me in this way, then I’m sure he could claim all the credibility that he hungers for....unfortunately he did not do so....instead...he offered these...:

At post No: #116...”This is I am afraid to say correct and a true reflection of current legislation - being s.1 and not s.2 and it should be noted it is exactly the same points as I have posted in the thread created to discuss if a mortgage deed is required to be signed by the lender (which it clearly isn't).”

 

#123: "You will note that this deed, is only required to be and is only signed by Accord and a witness. It is only required to be signed by Accord as it only contains obligations for Accord. Brass No.1 does not have to sign it, as the deed includes no obligations for brass. Naturally, this deed is subject to the mortgage Sale Agreement and the clause previously posted in regard to perfection"

 

#149 "Given that the above is the official findings of the First-tier Tribunal Property Chamber and is as I have posted on numerous occasions during the last few months, fully supported by case law and legislation (just not your interpretation of that case law and legislation), don't you think it maybe time to consider that you simply have it wrong and you have misunderstand the legalities involved ?

If you have not considered that possibility, it might be time that you should."

 

# 151 "You will also see that I have said that in some situations a signature of the lender is required. An example being the CH1 form when there is an obligation for a further advance.

I have not and do not say that the legislation is wrong. All I have ever said and continue to say is that Apples interpretation of the legislation is wrong. If you look at the changes made by the RRO 2005, it doesn't make any change that refers to the requirement that a lender must sign the deed.....

 

I feel that Apple, be it with the best intentions has confused what a company must do when it grants a deed with her argument that a lender must sign the deed. They are of course two different things and should not be confused.

 

Please remember, unlike Apple of course that told you that the mortgage Deed HAD to be signed by the lender, otherwise it is Void.

 

The order you have received clearly and beyond any reasonable doubt confirms that is not the case - In otherwords, if a mortgage deed is not signed by the lender, it does not automatically make it void."

 

#170 "I hope Is It Me? decides to continue to use CAG , as using another forum such as the void mortgages / freeman type forums will in my opinion be of little benefit except to give him a one sided view of the world, full of unsuccessful arguments and a lot of wishful thinking.

 

My own view remains unchanged and is reinforced by the order posted by Is It Me?

 

Charges do not as a matter of law always require execution by the lender as well as the borrower.

 

The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.

 

Both of these findings clearly confirm that Apples entire argument is based upon the misunderstanding that if amortgage deed has not been signed by the lender it is void.

 

Now that a response has been provided by the Land Registry, Apple is blaming IS IT ME? for the response - being the complete opposite to Apples argument - Apple considers that IS IT ME? Must have done something wrong - It can't be that Apple is wrong - that would be impossible.

 

So much so that as the response from the Property Chamber disproves rather than proves Apples argument - Apple considers the posting of the order to be "allegations" and hearsay that could result in either the poster of the order or even CAG (????) facing litigation."

 

#175 " 'No prospect of succeeding'

 

You have to remember, it is the view of the Property Chamber that is important, Apple can say and believe whatever he/she wants. When you go back to Court, you will be asked what was the response from the Adjudicator, not what is the view of Applecart.

 

Let's be realistic here for a moment, is it even possible that you could have submitted anything that would have any impact upon the findings of the Property Chamber - being

 

• Charges do not as a matter of law always require execution by the lender as well as the borrower.

• The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.

Of course not, the Property Chamber has told you that it is a matter of law that the deed does not always have to be signed by the lender.

 

The Property Chamber has also told you that as it is the borrower that creates the charge, generally only the borrower needs to sign it.

 

I have gone to great lengths to explain in detail why this is the case in my previous posts (obligations etc)

 

The reason the information that I have posted, is so similar (as you and apple both say almost it is almost word for word) to the order of the Property Chamber, is because my posts have been based upon the law, as the order from the Property Chamber would have been and not Apples incorrect interpretations of the law. I take it as a compliment that you consider my posts to be on par to the Property Chamber's findings."

 

# 176 "I leave with one final thought, who knows more about Property Law ? Apple a faceless poster on an internet forum or the First-tier Tribunal Property Chamber ?

Thank you to those that have clicked on the green reputation as a result of what I have posted in this thread, it is very much appreciated"

 

 

I think Caggers can make their own minds up.......

 

Apple

 

Unlike some I have no desire in winning a popularity contest, I am just interested in the truth.

 

In relation to a hearing being held, I thought you would be more familiar with the applicable rules Apple but I guess not.

 

http://www.legislation.gov.uk/uksi/2013/1169/article/31/made

 

Decision with or without a hearing

 

31.—(1) Subject to the remainder of this rule, the Tribunal must hold a hearing before making a decision which disposes of proceedings.

 

Enjoy the rest of your day

 

Ben

Edited August 14, 2013 by bhall

[bhall]

We must address another issue to avoid being misguided......

 

The Owner of the Registered Charge is the BORROWER...it is the Borrowers legal estate...it is registered...... All Registered titles are listed at HMLR....Lenders rely that you have a ‘registered estate’ so that they can create the illegal legal rights that they purport to have...to enter into possession of the Borrowers legal estate to effect an extra judicial sale of the beneficial interest to SPV’s and enjoy the beneficial financial spoils of the Money Markets.....

 

A Registered Legal Estate will always denote the Borrower as the ‘absolute proprietor’ of that ‘registered estate’ in the ‘proprietorship’ section and by being registered it denotes that it is the Borrower who accordingly is the ‘owner’ of the legally ‘registered charge’ due to being so registered at HMLR...

.

WP has already mentioned this....she is wholly correct.....do not be confused by what Ben asserts...he is wholly misguided...to further the point made by WP...

 

No Apple,

 

The borrower grants the charge to the lender. This means that the borrower gives the charge to the lender. Once the charge has been given by the borrower, the charge is owned by the lender. This is why your points are flawed and not based in law.

 

Paragon Finance Plc v Pender & Anor [2005] EWCA Civ 760 (27 June 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.

 

From the above:

 

 

• It is common ground that Paragon, as registered proprietor of the Legal Charge, retains legal ownership of it.
  
  
• One incident of its legal ownership
  
• Paragon of an essential incident of its legal ownership
  
• Paragon as the legal owner of the Legal Charge
  

111. The only question then is whether the SPV should have been joined in the proceedings as an additional claimant. In my judgment, the answer to that question is plainly: No. On the assumption that the consideration for the transfer of the Legal Charge has been paid in full, Paragon has since retained its legal ownership of the Legal Charge as trustee for the SPV (see Whiteley v. Delaney [1914] AC 132 at 141 per Viscount Haldane LC). But it does not follow that in that situation the SPV, as the owner of the Legal Charge in equity, is a necessary party to the claim; and on the facts of the instant case joinder of the SPV is wholly unnecessary. There is, after all, no issue between the SPV and Paragon as to the exercise of the mortgagee's rights under the Legal Charge: indeed the SPV has, by virtue of the administration agreements, expressly authorised Paragon to exercise such rights on its behalf.

 

 

From the above:

 

Paragon has since retained its legal ownership of the Legal Charge

 

If we look at an example of a Title Register from the Land Registry

 

http://eservices.landregistry.gov.uk/www/wps/QDMPS-Portlet/resources/example_register.pdf

 

we can see that the borrower is the proprietor of the ABSOLUTE FREEHOLD and the lender is the proprietor of the registered charge.

 

Proprietor means owner Apple... The Lender is the proprietor of the legal charge and as confirmed by case law - the lender is the legal owner of the legal charge.

 

As confirmed by the court of appeal

 

"Paragon, as registered proprietor of the Legal Charge, retains legal ownership of it"

 

" Paragon as the legal owner of the Legal Charge (i.e. as the registered proprietor of it)" Of course in that case Paragon was the lender

Edited August 14, 2013 by bhall

[bhall]

If case law does not convince you may be legislation will

 

The Land Registration Rules 2003

 

http://www.legislation.gov.uk/uksi/2003/1417/article/9/made

 

Contents of the charges register

 

9. The charges register of a registered estate must contain, where appropriate—

 

(a)details of leases, charges, and any other interests which adversely affect the registered estate subsisting at the time of first registration of the estate or created thereafter,

 

(b)any dealings with the interests referred to in paragraph (a), or affecting their priority, which are capable of being noted on the register,

 

©sufficient details to enable any registered charge to be identified,

 

(d)the name of the proprietor of any registered charge including, where the proprietor is a company registered under the Companies Acts, or a limited liability partnership incorporated under the Limited Liability Partnerships Act 2000, its registered number,

 

(e)an address for service of the proprietor of any registered charge in accordance with rule 198,

 

(f)restrictions under section 40 of the Act, including one entered under section 86(4) of the Act, in relation to a registered charge,

 

(g)notices under section 86(2) of the Act in relation to a registered charge, and

 

(h)such other matters affecting the registered estate or any registered charge as are required to be entered in the charges register by these rules.

 

Again I draw your attention to the use of the term 'Proprietor' of the legal charge - meaning the owner of the legal charge.

[bhall]

Apple if we continue to look at the applicable legislation (taking into consideration the information in my two previous posts)

 

Land Registration Act 2002

 

24 Right to exercise owner’s powers

 

A person is entitled to exercise owner’s powers in relation to a registered estate or charge if he is—

 

(a)the registered proprietor, or

(b)entitled to be registered as the proprietor.

 

I know it is that or word again that you don't like. However, s.24 confirms that a person (including in the legal meaning of person) is entitled to exercise the owner's powers in relation to a registered estate or charge.

 

As demonstrated by the example of the Title Register, the registered proprietor of the legal charge (confirmed by case law to also be the legal owner) is the lender and not the borrower.

As the registered proprietor of the legal charge, the lender and not the borrower is subject to s.23 (2) of the LRA 2002. The borrower is subject to s.23 (1) as the proprietor of the legal estate

 

23 Owner’s powers

 

(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.

 

(3)In subsection (2)(a), “legal sub-mortgage” means—

(a)a transfer by way of mortgage,

(b)a sub-mortgage by sub-demise, and

©a charge by way of legal mortgage.

 

It is the lender as the proprietor (legal owner) of the registered charge that is unable to grant a charge by way of legal mortgage. This is because if the lender granted a change by way of legal mortgage, on the charge by way of legal mortgage granted by the borrower, it would be a mortgage of a mortgage - in otherwords a sub-charge.

 

A charge by way of legal mortgage granted by the proprietor of the legal estate (the borrower) is not a mortgage of a mortgage and is not a sub-charge.

 

In fact a charge by way of legal mortgage granted by the proprietor of the legal estate, as per s.23 (1) of the LRA 2002 is permitted as it is not a mortgage by either demise of sub-demise as confirmed by the LPA 1925 a charge by way of legal mortgage is infact another type of legal mortgage.

 

The explanatory notes for s.23 of the LRA 2002 -

 

"55.This section states the unlimited powers of an owner. It makes one change to the current law. Under the existing law, there is a presumption that a registered charge takes effect as a charge by way of legal mortgage, unless there is clear provision to the contrary, or it is made or takes effect as a mortgage by demise or sub-demise.

 

Mortgages by demise or sub-demise are now in practice obsolete, because of the advantages of a charge (that enables freeholds and leaseholds to be made the subject of a single charge rather than separate demises or sub-demises; the grant of a charge of a lease is not thought to amount to a breach of the common-form covenant against subletting without the landlord’s consent; and the form of legal charge is short and simple). Subsection (1)(a) therefore abolishes them, with prospective effect."

 

http://www.practicalconveyancing.co....t/view/7808/0/

 

"A sub-mortgage is a mortgage of a mortgage. For example, A borrows £10,000 from B and mortgages his house to B as security for the loan. B then needs to borrow £1,000. B borrows the money from C and then mortgages the asset he has i.e. the mortgage of A’s house, to C as security for the loan."

A sub mortgage is (or least was) a charge granted by the lender to a 3rd party. How can a borrower, grant a charge on a charge it has already given to the lender ?

 

and as previously posted -

 

"The proprietor of a registered charge (as now confirmed by case law - is the lender) 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).

 

If the provisions of the LRA 2002 had applied in this case, it is submitted that the principal mortgagee would still have had the right to take possession of the property because a registered principal charge will continue to operate as if the mortgagee had a term of years (pursuant to section 51 of the LRA 2002 and section 87(1) of the LPA 1925). On the assumption that the sub-charge was created pursuant to section 23(2)(b) of the LRA 2002, the sub-chargee will not be deemed to have a term of years under the LPA 1925. However, the subchargee should nevertheless have a right to possession of the property under section 53 of the LRA 2002."

Edited August 14, 2013 by bhall

[bhall]

Ben...I've tried to direct you previously...you have clearly.... as usual ....avoided that direction...but that's fine...we are used to you : )

 

Let me say it like this....

 

The OWNER of the 'Registered Charge'...that the one with the right to charge the estate with indebtedness from the outset...is the Borrower..

 

The Lenders charge is depicted by way of 'notice'...that notice is entered under the 'charges section' of the Borrowers legally registered estate within the Borrowers Power as an Estate Owner mate...

 

There is no 'ambiguity' as you try to suggest...it's as clear as day mate...

 

try as you may....you and your posts simply can't change that which the legislator brings into force hun????

 

Apple

 

Apple Apple Apple

 

How can the borrower be the owner the registered charge, when the borrower has given the charge to the lender ?

 

That doesn't even make sense.

 

To conclude that the borrower is the owner of the registered charge is only possible if you ignore the law -

 

Pender, legislation and the Title Register of the Land Registry very clearly and in no uncertain terms confirm that the Lender is the Proprietor of the registered charge.

 

If you don't believe me, you might believe these -

 

From the Land Registry http://eservices.landregistry.gov.uk/www/wps/QDMPS-Portlet/resources/example_register.pdf

 

 

From Pender http://www.bailii.org/ew/cases/EWCA/Civ/2005/760.html

#

 

 

From the LRA 2002 http://www.legislation.gov.uk/ukpga/2002/9/contents

 

 

 

 

The above with no ambiguity confirms that the Lender as the registered proprietor of the legal charge, is the legal owner of the legal charge. It could not be any clearer

[bhall]

Apple even the Land Registry's own form (CH1) which lenders could use instead of their own mortgage deed's states -

 

http://www.landregistry.gov.uk/_media/downloads/forms/CH1.pdf

 

 

'charges the property by way of legal mortgage'

 

Why would the form say that if a borrower was unable to charge the property by way of legal mortgage ?

[bhall]

Ben, Ben, Ben...

 

The Borrower does not legally grant the Lender any such legal 'ownership' rights ....the Law prevents the Borrower from doing that...

 

The fact that HMLR by mistake take as 'valid' terms such as 'charge by way of legal mortgage' and 'full title guarantee' is a matter that is before the Property Chamber....

 

The example you post is notably to do with a charge made in 2001...ambiguously HMLR present this today as an 'example' on line.... it does not evince current substantiating legislation...they should remove it...look how it has confused you....what say other unwary Borrowers hey??? they are supposed to present to the public 'reliable guidance'... the example is far from that.....

 

You know as well as I do that we have moved on since the decision in 'paragon'....The Penders property was charged back in the 80's.... or early 90's....it should not be having the effect it has been allowed today as it did back then....valid charging clauses have all together changed now mate....that's just one of the issues that spring to mind with that decision when relied upon today.....imo

 

Apple

 

Come on Apple, getting a wee bit silly now

 

Can someone who has a mortgage deed registered after the LRA 2002 came into effect please confirm or deny if the lender is still registered (as per the example) as the proprietor of the registered charge.

 

UNRAM, can you please look at your deed and confirm if in the charge section, your lender is detailed as the proprietor

[bhall]

Come on Apple, getting a wee bit silly now

 

Can someone who has a mortgage deed registered after the LRA 2002 came into effect please confirm or deny if the lender is still registered (as per the example) as the proprietor of the registered charge.

 

UNRAM, can you please look at your deed and confirm if in the charge section, your lender is detailed as the proprietor

 

Nevermind... found one

 

http://www.landregistry.gov.uk/public/guides/public-guide-1

 

 

28.11.2003 - The lender is still the registered proprietor of the registered charge Apple (over a month after the LRA 2002 commencement date of 13 October 2003) - This example shows one charge registered before the LRA 2002 and one charge registered after the LRA 2002 - Both charges have the lender as the registered proprietor - In otherwords the lender is the owner of the charge in both instances.

 

Should also be noted the above practice guide was updated in July 2013 - Therefore represents the current and uptodate guidance of the Land Registry

Edited August 14, 2013 by bhall

[bhall]

Yes, that too needs amending...another little 'oversight' by HMLR - stands to mislead the public imo....they need to distinguish the relevance of that document and stop 'approving' lenders own forms of 'charge'.....that contain invalid charging clauses as similar to their own......that would go a long way to stop confusion,.....

 

I think I am correct in surmising that HMLR are more than 'complicit' with an unscrupulous lenders objectives due to these on-going failures to update their guides in line with the amendments made to legislation....

 

Apple

 

Apple

 

It is amazing how many things you feel need amending to fall in line with your assertions Apple. May be it is time to consider that it is not all these things that need amending but the assertions you have made.

 

Just saying.......

Edited August 14, 2013 by bhall

[bhall]

This response from the Land Registry might be of interest to some

 

https://www.whatdotheyknow.com/request/title_register_proprietor

 

This response is dated 13 February 2013

 

"When a company such as Santander lend people money to buy their property we note the mortgage in section C (Charges register). They are referred to here as being the ‘proprietor’ of the mortgage as they ‘own’ it and they remain on the title register until the mortgage is paid off by the property owner"

[bhall]

This is another 'working example' of the title register from the Land Registry

 

In the charges section, it refers to a charge 1 September 2011, again the Lender is the registered proprietor (owner) of the registered charge

 

https://www.searchflow.co.uk/cms/downloads/Land%20Reg/LR_Electronic_Register_View_%28E%29.pdf

[bhall]

We must also not forget the Land Registration Rules 2003

 

http://www.legislation.gov.uk/uksi/2003/1417/article/9/made

Contents of the charges register

 

9. The charges register of a registered estate must contain, where appropriate—

 

(a)details of leases, charges, and any other interests which adversely affect the registered estate subsisting at the time of first registration of the estate or created thereafter,

 

(b)any dealings with the interests referred to in paragraph (a), or affecting their priority, which are capable of being noted on the register,

 

©sufficient details to enable any registered charge to be identified,

 

(d)the name of the proprietor of any registered charge including, where the proprietor is a company registered under the Companies Acts, or a limited liability partnership incorporated under the Limited Liability Partnerships Act 2000, its registered number,

 

(e)an address for service of the proprietor of any registered charge in accordance with rule 198,

 

(f)restrictions under section 40 of the Act, including one entered under section 86(4) of the Act, in relation to a registered charge,

 

(g)notices under section 86(2) of the Act in relation to a registered charge, and

 

(h)such other matters affecting the registered estate or any registered charge as are required to be entered in the charges register by these rules.

 

 

Taking into consideration rule 9 of the LRR 2003, does any one have their own name and not their lenders name, registered as the proprietor of the legal charge ?

 

As Is It Me?'s friends deed is the one in dispute, may be he could confirm who the registered proprietor of the legal charge is in the Charges Register - This will no doubt be confirmed during the hearing anyway.

 

For that matter, anyone else that is contemplating following Apple's advice can check their own Title Register to see if their lender is the registered proprietor (owner) of the registered charge. This will allow you to see for yourself if Apple is right or not.

 

There will not be a single one where the borrower is the registered proprietor of the registered charge, as the borrower gave the charge to the lender, at which point following registration, it became the legal owner of the legal charge -

 

As confirmed by Pender the registered proprietor of the legal charge is the legal owner of the legal charge.

 

Enough from me for one day

 

Ben

[bhall]

Ben dear Ben go and lie down in a dark corner,

you have once again answered your own question THE LENDER IS THE OWNER OF THE CHARGE NOTHING MORE

WHAT YOUR SAYING IF I am reading it right the lender owns your house ????

Thank you apple for having some faith in me, yes it has been hard to get some one any one to listen but now we have this has been going on for over 2 years so I can not see any court or tribunal not saying go away you have no case before now and as I said before and many times ' it is how the questions are put and answered ' which is the question.

So now its time to start getting back to a fair playing field because as I've said before this is only the start as when the rates go up many more people will be in this boat.

 

Exactly Is It Me?

 

The lender is the owner of the charge. As you understand, can you please explain it now to Apple

 

No I am not saying the Lender owns the property. On the contrary a charge by way of legal mortgage does not transfer ownership of the property to the Lender.

 

The borrower grants the lender a charge expressed by deed by way of legal mortgage.

 

The lender only owns the charge not the property you or I live in.

[bhall]

THEN APPLE IS RIGHT they have to sign the deed!

 

We will find out if Apple is right or wrong at the hearing.

 

Just hope for your friends sake Apple is right. However, I can't in full honesty say Apple is right about anything Apple has posted with regard to property law.

[bhall]

would you like to come to the hearing and hear it yourself?

 

I won't need to as the decision will be a matter of public record and will be available online.

 

It is not to late Is It Me?, for the sake of your friends family home, contact Ell-en etc and discuss this matter. There may be something that can be suggested to help your friend save his home.

 

Your friend has nothing to lose by at least you considering taking that step.

 

Don't put all your friends apples in one basket (no pun intended)

[bhall]

Because I don't comment on situations I know nothing about and unfortunately I have a full time job which means I don't have the time to research this sort of stuff. I deal with repossessions where the facts are clear and I know what I'm doing is right.

 

I am sorry Ell-enn

 

I have been suggesting that Is It Me? contact you as I have been blown away by the help you have provided in other threads. Any visit to the repossession success forum will show your name everywhere.

 

It is clear that you have real knowledge and expertise with a long history of successfully helping Caggers in this situation.

 

Please accept my apologies for involving you in this thread.

 

I would also like to take this opportunity to offer my apologies to both Is It Me? and to Applecart for any comments that I may have made that have caused any offense.

 

Ben

Edited August 15, 2013 by bhall

[bhall]

Re: Securitisation

 

In relation to the arguments about mortgage securitisation, I would urge you to read the following cases -

Santander UK Plc v Harrison & Anor [2013] EWHC 199 (QB) (07 February 2013)

Bank of Scotland Plc v McGuigan [2012] NICh 19 (19 June 2012)

Paratus AMC Ltd & Anor v Countrywide Surveyors Ltd [2011] EWHC 3307 (Ch) (14 December 2011)

Wellstead -v- Judge White & Anor [2011] IEHC 438 (25 November 2011)

Southern Pacific Securities 05-2 Plc v Walker & Anor [2010] UKSC 32 (07 July 2010)

Southern Pacific Personal Loans Ltd v Walker & Anor [2009] EWCA Civ 1218 (12 November 2009)

Paragon Finance Plc v Pender & Anor [2005] EWCA Civ 760 (27 June 2005)

Paragon Finance Plc v Pender & Anor [2003] EWHC 2834 (Ch) (25 November 2003)

GMAC RFC Ltd v Grant-Sinclair & Anor [2001] EWCA Civ 1793 (19 November 2001)

 

These cases contain extensive detail of the courts view on securitisation and contains details of the actual transactions

 

With special attention drawn to the judgements of Pender 2005, which emphasis the important of the charge - being more than just a notice. The charge is more than just a notice it grants the lenders powers / powers

 

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.

Edited August 15, 2013 by bhall
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