Repossession questioned by deeds not being signed

[bhall]

before the RRO 2005 the legal position was confirmed by Eagle Star Insurance Company Ltd v Green & Anor [2001] EWCA Civ 1389 (8 August 2001) and as shown above, the RRO 2005 didn't make the changes suggested by this thread

 

 

12. So, says Mr Green, section 2 requires the signature of all the parties to a mortgage, being a contract for the disposition of an interesticon in land. He says that if you look at this mortgage at the end where the signatures appear it will be seen (on page 50 of Volume 1 of the bundles of documents) that there are the signatures of himself and Miss Challis, but there is no signature on behalf of Eagle Star. So, he submits, the mortgage of 8th November 1989 does not comply with the requirements of section 2 of the 1989 Act, which by then had come into force. He made it clear that it is not disputed that he owes money to Eagle Star, but there is a dispute about the precise amount. He emphasised that he has been regularly paying monthly payments to Eagle Star, though he accepts there are arrears. He says that the effect of applying section 2 to the mortgage of 8th November 1988 is that it is unenforceable. That means that the Eagle Star company are not entitled to obtain the order for possession which it obtained from His Honour Judge Jones. He emphasised a number of times during his submissions that without the signature of someone on behalf of Eagle Star the mortgage is not a full and complete legal document and so they are not entitled to enforce the charging provisions in it against him.

 

13.Mr Green referred to some passages in the report of the Law Commission which led to the bill enacted in the 1989 Act. He referred to passages in the Law Commission Paper No.164, in particular 4.5, 4.6 and 4.8. He also referred to a number of authorities. I think the most important of these (because it was concerned with a mortgage, while the other cases he referred to concerned contracts for the sale of land) was United Bank of Kuwait Plc v Sahib [1997] Ch at 107. I have been supplied with a copy in [1996] 3 All ER 251. That is an important case. It decided that the requirements contained in section 2 of the 1989 Act to the effect that a contract for the sale or other disposition in land must be in writing in a single document incorporating all the terms and signed by the parties, abolished the rule that a mere deposit of title deeds relating to property by way of security created a mortgage or charge. Following the 1989 Act the rule had changed. There had to be a written document, not merely a deposit of title deeds by way of security in order to create a mortgage or charge.

 

14.Mr Green relied on that for the proposition that the same should apply to this case because there was, in this case, within the mortgage deed a contract by him in the form of the covenant to repay. There were also contractual provisions or covenants by Eagle Star. So, he said, if the mortgage in United Bank of Kuwait v Sahib was governed by section 2 of the 1989 Act, so should this mortgage with similar results for its enforceability.

 

15.In my judgment this argument does not stand any real prospect of success. This is not a case of a contract: it is a case of a deed. If we were simply dealing with a contract to create a mortgage then Mr Green would be right. But in this case he and Miss Challis have actually executed a deed. It is clear from the provisions of the 1989 Act itself that a distinction is drawn between the formal requirements affecting the execution of deeds and the formal requirements governing contracts. Section 1 makes alterations to the law about the execution of deeds. For example, they are no longer required to be written on any particular kind of substance and a seal is not required for the valid execution of an instrument as a deed by an individual. There are a number of detailed provisions in section 1 relating to deeds. Section 2 does not apply to deeds; it applies to contracts. It may be a contract for the sale of land, it may be a contract for some other kind of disposition of an interest in land, one other kind of disposition being a transfer by way of security over what is commonly called a mortgage or charge.

[bhall]

Hi Dodgeball, If I take away any ambiguity and just post up the exact quote I would like your opinion on, eh?

 

 

'That no doubt has very serious consequences for the lender and ultimately may lead to various claims .

Whilst the factual background is rather complex this case serves a timely reminder to conveyancers and lenders as to basic principles . Ignore proper execution of deeds at your peril'.

 

 

What's your thoughts on the above quote?...BP

 

Hello BP

 

What is it you want Dodge to say ?

 

It went badly for the lender ?

 

I have no qualms in saying that it went badly for the lender. In fact, I would say it could not have gone any worse for the lender

 

However, the reasons and circumstances that it went badly in that case don't apply to the application made by the OP on behalf of his friend to the chamber - The chamber has already told Is It Me? that this case is not relevant to the question of if a lender has to sign a mortgage deed

 

The reason it went badly was because of the signatory page, this as we know is incorporated within a mortgage deed, so not applicable to the application - the "it" includes the signature as required by s.1

 

 

The above is from the Accord Mortgage Deed

 

http://www.accordmortgages.com/documents/ACCL0002-Mortgage-Deed-E&W.pdf

 

In terms of the mortgage deed, the lenders do not ignore the proper execution of deeds at their peril - instead they comply with the statutory requirements as per my earlier post

 

The circumstances as detailed within that case are completely different to how a mortgage deed is used and signed by the borrower, prior to registration

[bhall]

You have to remember in Garguilo

 

(1) Andrew Francis Garguilo (2) Jennifer Margaret Garguilo v (1) Jon Howard Gershinson (2) Louisa Brooks both acting as Joint Fixed Charge Receivers of Desmond Daniel Charles Moore in respect of Flat 4, Station Court, 140A High Street, Godalming (Deeds : Execution) [2012] EWLandRA 2011_0377 (06 January 2012) http://www.bailii.org/ew/cases/EWLandRA/2012/2011_0377.html

 

61. The submission on this point is that, even without forgery being demonstrated, the mere fact that the signatory pages of the Lease were, as I have found, executed separately and inserted into the Lease invalidates the instrument as a matter of law.

 

66. It was common ground that the documents in question were intended to be deeds. It was also common ground that the clients were asked to sign incomplete drafts of each of the three documents and that, when fresh documents in final form came to be executed, the client was not asked to sign these versions but instead the signature pages from the drafts were detached and stapled to the final version. There were differences between the drafts and the final versions.

 

With a mortgage deed, the signatory page (well on a mortgage deed it is more of a space) is incorporated within the actual deed, it is not on a separate piece of paper that could be inserted into the deed at a later date

 

The mortgage deed, is also not a incomplete draft (as per Garguilo), the actual document signed by the borrower is the same document that is sent to the Land Registry

[bhall]

And, it has a lot to do with the OP and other applications because of the 'Principle' set by 'Garguilo', which is 'Case Law'! Case Law being one of the authorities I thought you said you relied on for your opinions, but hey ho, enough said....BP

 

Hello BP

 

I don't understand, which principle are you referring to in garguilo that can be applied to an application made to the chamber to determine if a lender has to sign a mortgage deed

 

If you mean that a deed can be found to be void, that is not a principle set by Garguilo - it is just a fact of life, it can and does happen

 

Apart from that I struggle to see any relevance in regard to Garguilo with the applications made, you have to remember that Apple has conceded that he/she misunderstood the meaning of the word "it" in that case.

[bhall]

I was under the impression that the chamber had not reached a decision, yet now you say the lender has 28 days to set it aside. Why would they be able to get it set aside? Wouldn't it be an appeal?

 

This is not what was said previously by either Ben when he contacted the chamber, or, for that matter, you.

 

Are you making assumptions or are you privy to some information that hasn't been posted?

 

Hi Caro

 

not wishing to speak on Apple's behalf, I think he/she might be referring to this post from Is It Me?

 

Hi Ben

Thanks for your in put as I thought you had better things to do lol

Yes the deed argument was used but you know what I was accepted that there is some thing wrong with the evidence that the lender has put before the court and as they now have 28 days to come back I will for reasons you know say no more on it, only to say that like before documents do not exist ( remember what happened last time funny that ) and that they don't want to show them why is hat Ben surely the lenders have nothing to hide????? Lol

Also they are very honest people and doing us all a favour lol

 

I don't know the reasons that I supposedly know or why Is It Me? will say no more about it. I also don't have a clue what happened last time. However, I do admit I find his posts hard to understand and follow at times.

 

I am still not 100% sure if he is referring to the property chamber hearing or one of the other cases he has been helping with. - As this response was posted in regard to a post I made, in which I intended to ask about the other case(s) he has helped with and not the application to the property chamber

 

If he is talking about the property chamber application, it does paint a different picture from the information provided to me by the property chamber via email and during a subsequent telephone conversation. However, as I am not a named party or an appointed representative involved in proceedings, I could have been given the brush off. However, time will tell as 28 days is nearly up. As It Is Me? is being surprisingly reluctant to share any information about the hearing, I guess we will have to just wait and see.

 

However, following his post, I did email the Property Chamber for clarification, once I receive the response I will post it in this thread.

[bhall]

God not this again lol

Why if this firm were so sure of this they did not represent the lenders then ??? So so sure

 

Would you prefer this one instead then ?

 

 

http://www.walkermorris.co.uk/business-insights/social-medias-mortgage-revolution-does-not-materialise

 

Walker Morris it would appear, had no concerns representing the lender in the Lamb case

 

It will be interesting to find out who the two Solicitors were that represented the two lenders on the 20 Jan, I guess for that we will have to wait for the decision to be issued

[bhall]

Doesn't this pretty much sum it up?

 

 

https://360.optimalegal.co.uk/2013/warning-secured-lenders-do-you-sign-mortgage-deeds/

 

Pretty much yes

[bhall]

Ben, dodgeball.

Thank you for your posts which have been answered more than once and just to confirm to you once again THIs FIRM OF SOLICITORS WOULD NOT TOUCH THIS CASE even though they are the ones dealing with the case in the county court lol

So much for having the upper hand then???

Would I rely on this NO WAY. I could put up what I want it does no mean any one should follow it lol

 

I am happy to see you wasting your time trying to put people off for no other reason I can see than working for the lenders as there is no other reason for trying to lose those thread with long long posts which have been answered but you FAIL to answer the questions so simple lol

 

I guess that you must be looking forward to when the decision is issued by the Property Chamber then

 

Just so that readers of this thread know (including myself), has a date been set for a second hearing, so that the lender can provide the unidentified documentation - that is if they can provide it. - or it is going straight to a decision - I only ask because as posted, the Property Chamber informed me via email and in a subsequent telephone conversation that it had gone to the judge for a decision. Just wondering, if what I have been informed was correct or not

 

Just seems odd to have created a thread on a public forum and then at the most critical time, go silent on what happened and/or what is going to happen. - You have said virtually nothing of any detail about the hearing

 

If you want to elaborate, what was actually said in the chamber about s.23 and a 'charge by way of legal mortgage' ? - It is ok, if you don't feel like you can say, the decision when issued should reveal all

 

Anyway, respect to you, your dedication to this thread has been proven, as even on the day of the hearing you still found time to post here - So I take my hat off to you.

 

As a side note, I like to think that I have done a good job over what has been nearly a year at answering questions that are relevant and ignoring the ones that were totally irrelevant, especially given the hostility to my continued contribution to this thread and the ever increasing bizarre claims about who I am and who I work for.

[bhall]

Ben you have done an excellent job on posting,Specsavers appointments have gone up ten fold with the amount of your lengthy posts.

Why don't you wait and see what happens at the Property Chamber it's not long now.

 

Why thank you Enfircer, I am glad someone appreciates my contribution

 

You should be careful all of your recent posts either are directed to me or about me, people might start to talk - Sorry I am happily married

[bhall]

You aren't on your own Caro!

 

 

If they have to set aside then doesn't that mean they 'won'? Well for now?

 

I was under the impression initially that the lender had 28 days to follow some direction given by the chamber and that it wasn't a decision as such. If they hace 28 days to set aside then if they do this could carry on for a while yet. It's hard to make anything out of all this fluff and veiled messages!

 

 

I will be open and honest and post what I know - well at least what I have been told by the Property Chamber

 

In an email shortly after the hearing, the Property Chamber said that decisions usually take 28 days.

In a subsequent email, the Property Chamber said that the decision is with the Judge and should be issued after 20 Feb

This was also confirmed during a subsequent telephone conversation

 

After it has been issued it will take a few days to be added to their website, for people to view. So if what I have been told is accurate within the next two weeks the decision should be in this thread. They gave me this link to check for the decision

 

http://www.judiciary.gov.uk/media/tribunal-decisions

 

They also gave me the reference numbers for both applications and said that I should contact them again after the 20 Feb, by which time the decision should be issued and quote the reference numbers

 

However, Is It Me? has said that it has been stayed for 28 days, so I don't know where that leaves things now. I have emailed the Property Chamber for clarification and await their response.

[bhall]

Hi Dodgeball,

 

The title of this thread says it all really, 'Repossession questioned by deeds not being signed', it refers to a 'principle', which some of us have now come to understand forms part of the formalities associated with the 'Deed'...BP

 

Hello BP

 

Every single publicly available case that has been posted in this thread, including Eagle Star, Helden, Lamb and Fergus (which unlike Bibby and Garguilo) dealt with the specific issue of "is a mortgage deed void if it has not been signed by the lender" have all returned the exact same Judgement -

 

No the deed is not void and it is enforceable - Garguilo and Bibby are unrelated to that precise topic. Neither case was about the topic of this thread or the subject of the application.

 

It is not just me telling you that, if you read the thread, it is what the Property Chamber said.

 

In my opinion the only reason that Bibby and Garguilo have been latched onto is because in both cases the deed was void and for no other reason.

 

However, in both cases the reason the deed was found to be void, do not occur in regard to mortgage deeds.

 

So no need to worry ;-)

[bhall]

I'll do the same and between us we should be able to figure out what stage it is at and we can't all be wrong or right can we? If you could pm the ref. numbers that would be helpful

 

That is an excellent idea and should help break through all the smoke and mirrors that have recently sprung up in this thread.

 

I am using my phone at the moment, but when I go on my computer later, I will send you the details.

 

Thanks, it is exactly what is needed to progress this thread.

 

Ben

[bhall]

Hello Ben, No need to worry, sorry, who are you referring to that does not need to worry, the Lender or the Borrower?...BP

 

 

Hello BP

 

I was referring to you and your post to me

 

Hi Ben,

 

I'm a little worried that, after all this time and 280 + pages into this thread where, in your own words you have contributed at least 40% of the posts, you are now asking what the principle is in 'Garguilo'?

 

Ok, just for you, Its the formality the formality associated with 'speciality contracts', such as a 'deed', hope this helps....BP

[bhall]

Hi Dodgeball,

 

 

Surely, logically, if what you state is correct, because, 'the Lender does not need to sign', why do you and Ben protest so much?...BP

 

I know the question is directed to DB. However, it would be impossible for him to answer a question about why I do something.

 

I do it because I am concerned that borrowers who have run into difficulties in paying their mortgage, will not consider the tried and tested methods as promoted by CAG, in favour of the untried, untested and potentially very expensive methods suggested by this thread - with the implied outcome that the mortgage will be void, the borrower will not have to pay their mortgage and even as suggested the borrower will refunded the mortgage payments they have already made. - This is a very attractive outcome

 

Most mortgages include a term that the borrower will be held liable for all costs the lender incurs protecting its security. - Proof of this can be found in this thread - UNRAM was advised by his lender that costs were to be added to his mortgage even before the hearing, after he followed the suggestions of this thread.

 

The potential dangers are that if someone choses to follow the suggestions of this thread because they are at a point in time where they are having trouble paying their mortgage, if they follow this route, the mortgage debt that they could not already afford will be increased - leaving them with little chance of saving their homes

 

I would love for the ideas in this thread to be right, I would love not having to repay my mortgage each month (my deed also only has my signature). However, personally I think there is more chance of the man on the moon being real, flying down in the middle of the night and singing a lullaby, to each and everyone of us as we drift off to sleep

[bhall]

Sorry Ben you are going to have to translate again for me No second thoughts I will just nod politely

 

Sorry you are asking the wrong person, I leave translations for others:roll:

 

Personally I feel that it is obvious why we post in this thread and it is clearly detailed in my previous post.

 

If anyone for any reason, has an objection to reading our posts, they do have the option to put us on ignore (the instructions to do this have been posted in this thread) - this will allow them to read the thread without our continued interruptions

[bhall]

Hi Ben,

 

With respect, I can always understand concern for borrowers, but I don't and never will understand your concern for the Lenders.

 

Borrowers are concerned and so they should be, the deed has not been signed by the Lender, why not?

 

Your reference to lullaby's really is not relevent, is it?...BP

 

Hi BP

 

With equal respect, I am not concerned about the lenders at all.

 

The deed has not been signed by the lender, as it is not a legal requirement as per s.1 of the LP (MP) A 1989

 

The lullaby reference was relevant in the context in which it was used.

[bhall]

Ben Ben

The court has to agree to costs being awarded, if they say no then it's NO

The lender can not add these to the mortgage as I have proven before!

The banks fiddling the LABRO rates was flying to the moon

The banks fiddling the PPI again was flying to the moon

Then they are found out to lie in court they are flying to the moon

You are a one lol borrowers have found out they have been conned to for far to long and the games are up!

 

 

Hello Is It Me?

 

I am not claiming the banks are angels or anything like that - I am talking about what the actual legal requirements are in regard to deeds

 

In terms of the court saying no to costs, I hope for your friends benefit you are familiar with what your friend is required to do for that to occur - However, I am sure you do know, given the number of times you have helped people in Court.

 

Ben

 

 

This applies to courts

 

 

Halsbury's Laws of England/mortgage (VOLUME 77 (2010) 5TH EDITION)/13. COSTS, CHARGES AND EXPENSES/(1) IN GENERAL/741. Assessment of costs.

 

741. Assessment of costs.

 

The mortgagee does not need to apply for an order for those costs that he has a contractual right to recover out of the mortgage funds, and nor do those costs have to be assessed. The mortgagor may make an application for the court to direct that an account of the mortgagee's costs be taken, and may then dispute an amount in the mortgagee's account on the basis that it has been unreasonably incurred or is unreasonable in amount. Where a mortgagor disputes an amount, the court may make an order that the disputed costs be assessed; and where the court assesses costs payable under the terms of the mortgage, the costs payable are, unless the contract expressly provides otherwise, to be presumed to be costs which have been reasonably incurred, and are reasonable in amount, and the court will assess them accordingly. The court may make an order that all or part of the costs payable under the contract be disallowed if it is satisfied by the paying party that costs have been unreasonably incurred or are unreasonable in amount5.

A mortgagor is also entitled to apply for an assessment of a bill of costs rendered to the mortgagee by his solicitor if the mortgagor is liable to pay it.

[bhall]

It seems to me that if posts don't make sense, it is reasonable to seek clarity, not just for those posting, but others who may be interested, but too intimidated to post in case they receive an aggressive response or are made to feel stupid.

 

With this in mind, I would remind everyone to keep the thread civil.

 

Personally I can't see any point in further debate without the decision of the chamber, unless of course isitme is prepared to give an account of what happened. If not then we will see the published decision in due course.

 

I do agree and accept that my posts can be very intimidating and through expressions of frustration aggressive.

 

I also also agree about what you say about further debate - but for unknown reasons isitme?, is not prepared or is unwilling to give an account - as I said before, I feel that is odd considering he started a thread on a public forum, with everything posted leading up to the hearing and suddenly when the hearing finally happens, nothing much is actually said about it

[bhall]

Hi Ben,

 

 

As you and I know, you have discussed this many times with IsItMe and Apple so their is no need for me to go over old ground at this point, the Property Chamber has not struck out the applications!

 

The question logically then is, why have they not struck them out, based on your assertions, Halsbury's, Lamb, Fergus, etc, etc?

 

Could it be, that they do in fact have merit, perhaps?....BP

 

Hello BP

 

I have answered this exact question a number of times in this thread already but I will do so again

 

As you know upon receipt of Is It Me?'s original application the Property Chamber was minded to strike it out and indeed wrote to his friend to confirm this.

 

With Apple's assistance a submission was made and subsequently the Property Chamber decided to proceed to a hearing.

 

It should be noted that Is It Me? has stated that the Property Chamber has said his was the first such application.

 

Now the question is, did the Property Chamber decide to proceed to a hearing because of the subsequent submission made, which did not address or respond to the points raised by the Property Chamber or did it decide to proceed to a hearing because other similar applications had been made ?

 

I lean towards it is because of other applications being made and that the chamber has not previously made a decision that could be applied to such applications.

 

I say this because

 

http://www.legislation.gov.uk/uksi/2013/1169/article/23/made

 

Lead cases

 

23. (1) This rule applies if—

 

(a)two or more cases have been started before the Tribunal;

(b)in each such case the Tribunal has not made a decision disposing of the proceedings; and

 

©the cases give rise to common or related issues.

 

(2) The Tribunal may direct that one or more such cases be specified as a lead case, and stay the other cases (“the related cases”).

 

This appears to be what has happened two cases were heard on 20 jan with the other related cases stayed.

 

http://www.legislation.gov.uk/uksi/2013/1169/article/24/made

 

Subsequent applications related to lead case

 

24. (1) This rule applies where a decision has been given in a lead case in accordance with rule 23 and a subsequent application is made which includes any of the common or related issues.

 

(2) The Tribunal may send written notice to the parties to the subsequent application of—

 

(a)the matters which it appears to the Tribunal are the common or related issues in the subsequent application and the previously decided lead case;

 

(b)the decision recorded in respect of the common or related issues in the lead case;

 

©the Tribunal’s proposal to record its decision on the common or related issues in the subsequent application in materially identical terms to the decision in the lead case;

 

(d)the date (being not less than 21 days after the date that the notice was sent) by which any objection to this proposal must be received by the Tribunal; and

 

(e)a requirement that any objection must include the grounds on which it is made.

 

If you read the responses Is It Me? and UNRAM both received from the Property Chamber, it would suggest this is what the Property Chamber is intending to do and why the two applications were heard on 20 jan

 

*EDIT

 

Sorry I forgot to say - the chamber has struck out one such application

[bhall]

YES WIN!!!! Lol and we will

 

Sorry I thought you said you had already won and that the lender now had 28 days to apply for that decision to be set aside - if the lender has 28 days to apply for it to be set aside you must be saying it is a decision in favour of the borrower and against the lender

 

- sorry your conflicting posts confuse me

 

May be you can post to clarify what actually happened - why are you so reluctant ?

[bhall]

Ben please read what you post from your lovely legal database

The mortgagor may make an application for the court to direct that an account of the mortgagee's costs be taken, and may then dispute an amount in the mortgagee's account on the basis that it has been unreasonably incurred or is unreasonable in amount2. Where a mortgagor disputes an amount, the court may make an order that the disputed costs be assessed3; and where the court assesses costs payable under the terms of the mortgage, the costs payable are, unless the contract expressly provides otherwise, to be presumed to be costs which have been reasonably incurred, and are reasonable in amount, and the court will assess them accordingly4. The court may make an order that all or part of the costs payable under the contract be disallowed if it is satisfied by the paying party that costs have been unreasonably incurred or are unreasonable in amount5.

ITS NOT THAT THEY GET IT!,,,,

Ben we all know which side you are on and it's NOT the borrowers lol

 

With respect I have read it, I think there is one or two things that you missed or may have overlooked

 

If I was on the side of the lenders, I would not bother posting in this thread, I would just sit back and watch people proceed and ultimately fail

[bhall]

Hi Dodgeball,

 

Caro has stated that this thread has not moved on and we should wait for the decision, I agree, it has not moved on, lets wait and see....BP

 

Why don't we all mutually agree to wait until the decision is issued ? Sounds reasonable

[bhall]

Hi Ben,

 

One out of the ten applications that you know of, I'd say that's a very good percentage still going through the system, wouldn't you?...BP

 

From a numbers perspective, I would agree

 

However, ask yourself this question - if there was any real merit in the application, why would one be struck out on the basis that it is - "frivolous or vexatious or otherwise an abuse of process"

 

If there is any real merit and the chamber was really going to decide that the deed is void, how can the Property Chamber say it was frivolous and vexatious

[bhall]

Why don't we all mutually agree to wait until the decision is issued ? Sounds reasonable

 

Anyway - how about the above ?

 

I am willing

 

let's all wait until a decision is either issued or until Is It Me? stops playing secret squirrels

[bhall]

Hi Ben,

 

I have asked the question several times and still come to the same conclusion, nine out of ten applications have not been struck out, there must be merit in those applications that have got through...BP

 

We will find out either way when the decision is issued - how about waiting until then to see ?