Repossession questioned by deeds not being signed

[Peterbard]

Thanks for that Ben , nice to see all we have been saying confirmed in such a concise way, also some other interesting things in there .

[Peterbard]

Hi Dodgeball, Why have the Property Chamber not struck out the 9 remaining (as per Ben's FOI) applications, if they have no merit? BP

 

I would guess that there are other issues we are not privy to which take additional consideration, just guessing. Or of course it could just be a procedural delay

[Peterbard]

Question: 14.1.5. Does the lender need to be sent the original mortgage deed?

 

In the majority of cases the mortgage deed is never even sent to the lender

 

May make it slightly awkward for him to sign in that case

[Peterbard]

That's the spirit Sequenci; It would be nice if others would take your lead ; )

 

Hopefully if they do; we can then get on with the serious issue that is the subject matter of the OP's thread.

 

Apple

 

Quite right , perhaps you could give a serious response to the points raised in post 5131, as they are among the many which completely destroy your stated argument.

 

Or perhaps you could produce some equally convincing authority to prove the points you made.(not your opinion)

[Peterbard]

Hi Dodgeball

 

Contrary to that which is posted in #5131...if you look at lamb you will find that whilst Butler stated the Law of section 1 ....the actual case (appeal) was taken forward only on section 2 and section 27 only.

 

There is no need for me to provide anything else really. It is there for those interested enough to see.

 

Apple

 

I think over and above any interpretation is the fact that the action failed isn't it ?

[Peterbard]

And again Apple you are stating your interpretation of events, surely there must be authorities somewhere that share your views, there seem to be plenty that dispute them.

[Peterbard]

Hi Ben yes I know, the provision that was being relied on was one that was applicable only to contracts for disposition of interests not to deeds which transfer property, the later come under section one and only need to be signed by the borrower.

 

I was trying to get apple to produce some authority which backs up her stance inn this, some case law or statute which has been shown to operate in the way she says,We know that there isn't any, because basically it doesn't, I thought that perhaps if she were to stand back and realize the fact a light may go on somewhere.

[Peterbard]

 

In fact, I posted earlier - s.2 and queried if there had in fact been an oversight of the LAW - s.2 appears to take into account the 'terms and conditions - to suggest that the terms and conditions should be signed by both parties??

 

Apple

Yes section 2 would have to do with "t and Cs" because it is the contract, not the deed.

[Peterbard]

ahhh -gotcha - Beer Garden - sorry, I'm not interested. Good Night : )

 

Apple

 

No authority then, perhaps you will find some in the beer garden

[Peterbard]

Yen there seems to be no shortage of supporting authority, although really it is not authority because it is just how the statute works, it is not at issue unless you have a problem understanding what you read

[Peterbard]

You seem to have a problem differentiating between the contract for disposition of interests in a property and the deed which transfers right to the property.

 

Sect 1 gives the requirements for the deed section 2 for the contract.

 

 

The requirements of form and content required in section 2 so not apply to section 1(deeds)

[Peterbard]

To assist those who wish to make constructive contribution - This is the complete citation for 'garguillo': Garguilo v Jon Howard Gershinson & Anor [2012] EWLandRA 2011_0377 (06 January 2012)

 

Apple

 

Perhaps if you were to explain how this case is supposed to support your argument, because I do not see how it can, to be honest.

[Peterbard]

You will note that section 2 includes the word 'or' - we are reliably informed by Ben that the word 'or' has significance, effect and meaning.

 

With respect - the 'or' in section 2 distinguishes 'contracts for sale' from 'disposition of interests' - would you not agree?

 

Apple

 

The point is Apple that what ever way you want to interpret section two, it does not apply to a deed, so what does it matter, the requirements for deeds are contained in section 1 as the judge said.

[Peterbard]

In brief - 'garguillo' says if the 'it' is not attached at the time of signing the deed - then the deed is void.

 

When copies of the deed are retrieved from HMLR - the 'it' is not attached. Borrowers are finding they only retrieve the deed without the 'it' attached'

 

The 'it' is the 'terms and conditions'...section 2 appears to say - if the 'terms and conditions' are not attached - there can be no finding that the 'it' meets s.2 - we already know the deed is not signed by the Lender.......

 

S.2 provides that if the 'it' is not signed by 'each party' - then another document should be......the other document and the only document in evidence is the deed ..... that is not signed by 'each party'.....

 

.

 

Apple

 

Isn't the issue in the case mentioned the Borrowers signature, and also wasn't it to do with a deed were as section 2 is to do with contract as explained earlier, you are mixing oranges and apples, pardon the pun.

 

Perhaps if you were to copy the section of the actual judgement which you think applies to this assertion.

[Peterbard]

No Dodgeball, I have no such problem differentiating between the 'contract for sale' and the 'disposition of interests'

 

The Contract for sale - will be between the buyer and seller of a property......

 

The deed is the 'registrable disposition' - aka - the charge, aka - the deed.....aka the deed that creates the 'disposition of interests' in property... or let's say the 'security' for the loan.

 

Section 1 looks only at the borrowers duty to sign the deed - it is section 46 Companies Act 2006 that looks to the Lenders duty to execute the deed - if he does not do so - there is no presumption of delivery to be in evidence to say he has complied with LPMPA 1989 s2 as amended applie

 

Now.... back to the 'terms and conditions' requirement under section 2 please....to say 'it' must be signed by both the Lender and the Borrower......and the authority in 'garguillo'

 

Section 2 (3) speaks of the 'The document incorporating the terms'.....

 

I'd be grateful for you to move your point forward from here please....

 

Apple

 

Why would I move the argument forward, you have not answered the existing argument. How can you apply section 2 criteria(ie the creditors signature ) to a section one matter(ie the deed).

 

YoU have shown nothing to support any such contention.

[Peterbard]

I have not said that s.2 applies to the deed - I have said it applies to the 'terms and conditions'.

 

Are you struggling to see the point made Dodgeball?

 

Apple

 

Yes I am I must admit, is there something in section 2 that says its requirement for terms and conditions apply to section 1.

[Peterbard]

Your forgetting the word 'or' - Ben explained the significance of the word 'or' for us all.

 

section 2 is to do with 'contracts for sale' OR 'dispositions of interests'

 

How can you say or look to make out that there is an issue with 'oranges and apples' - when it is clearly intended to make the very distinction you concern yourself with here...... it is 'oranges' and 'apples' to use your pun.

 

Para 70: Mr Ollech submitted that, carried to an extreme, this line of reasoning would produce a situation where a document would be invalid if the signature pages were signed in another part of the room or possibly even merely detached from the remainder of the deed. The question must always be whether the signature page and other relevant pages formed part of the same physical document. That will be a question of fact in each case. In this case, the relevant pages were clearly separate from the remainder of the Lease: they were signed separately and returned separately (and not by Mr Westwood) at some unspecified time after the other leases were executed (and after Mr Westwood had stated, initially, that he did not intend to execute the Lease) and were accordingly not in any sense part of the ‘it’ referred to in the statute.

 

Para 71. Section 52(1) provides that all conveyances of land are void for the purpose of creating a legal estate in land unless made by deed. Accordingly, in my judgment, the Lease is void as it was not made by deed.

 

 

 

Apple

 

Yes Apple but this was the borrowers signature not the lenders.

[Peterbard]

All of this is because apple cannot seem to understand that section 1 of the act is applicable to deeds and section 2 is applicable to contracts for the disposition of interests in land. There is nothing anywhere that say that section 2 criteria should be applicable to deeds and the courts agree.

[Peterbard]

With respect Dodgeball.

 

I more than understand that section 1 applies to the Borrowers liability to sign the deed.

 

We are looking at section 2 and the terms and conditions and the liability of 'each party' to sign the terms and conditions that are supposed to be attached to the "Deed".

 

With respect to you - Ben and I are discussing the issue - please allow us to do so. The issue will conclude in due course without the need for un-opportune erroneous comments being made that have no baring on that which Ben and I are discussing.

 

Apple

 

 

With equal respect to you. What is happening here is that you are yet again being indulged in some delusion retarding the regulation.

 

The terms and conditions referred to in section two refer to those relevant to the disposition of the interests or the charge in the property, not the transfer of ownership of the title as is the subject data of the deed.

 

That simple

[Peterbard]

Again, I wholly take this point made.

 

Here is the statute you refer to:

 

(2)The terms may be incorporated in a document either by being set out in it or by reference to some other document.

 

Therefore, if I understand your point made correctly; you are essentially saying that so long as the deed (the 'IT') states words to the effect of 'the 2008 mortgage conditions apply to this mortgage' - this is enough to say that the 'terms and conditions' are referred to and the deed therefore conforms with s.2 when it speaks of 'or dispositions of interests' - yes?

 

Here's the point I am making..

 

In accepting that the Deed is the 'it' and in accepting that the 'it' (the Deed) complies with s.2 in regard to being a 'disposition of interests'......should it not also then comply with LPMPA s.2 (3) or indeed - as we know it does not have signatures of 'each' party..... should there not be separate terms and conditions attached that will bare the signature of 'each' party to 'it' to comply with LPMPA s.2 (3)?

 

(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.

 

 

Apple

 

I have to remind you at this point of the title of this thread, the issue i thought was that the lender had to sign the deed.

[Peterbard]

A deed does not have to comply with s.2

 

Exactly

[Peterbard]

You seem to think that the contract as subscribed by section 2 is an intriguall part of the deed and thus all aspects and requirements of section 2 apply to section 1, this is not the case. They are two sepperate documents as illustrated in the case law posted by ben.

 

You cannot subscribe the requirments of the documents under section two to the deed this is section one territory, I really do not know how many more ways I can ell you this.

[Peterbard]

Hi Dodgeball, Did you not read the quote you posted???? BP

 

Sorry not with you ?

[Peterbard]

Hi Dodgeball, No worries, I was referring to your post at #5207...BP

 

Just be clear section 2 requirements refer to section 2, section 1 refer to section one.

 

When section 2 says that its terms may be incorporated or in an other document referred to by it, it is talking about(you guessed it) section 2, information regarding the information required by, yes section 2 (ie not section 1.

[Peterbard]

I have the best interest of borrowers at heart as I am sure does Ben and the other contributors to this thread.

 

It is not in the best interest of anyone to make argument in court that cannot succeed, it will just incur more costs and create further misery.

 

It is very nice to think that there is a magic pill that will make all our debts and problems go away, and forums like this a breading grounds for half baked ideas like this one.

Usually they are harmless however sometimes people take them seriously and act on them.