Repossession questioned by deeds not being signed

[bhall]

It is only right that you 'apologise'.....the RRO was not in force at the time this decision was made....Your 'apology' is wholly accepted : )

 

Apple

 

Apple

 

The decision for Silverqueen was made in 2010 (as I had posted - it reaffirmed the existing correct legal status) The commencement date of the RRO 2005 was 15 September 2005

 

In 2010 it was said

 

"There are three ways in which a deed, once it has been signed, can be delivered. The analysis set out in the judgment of Nourse LJ in Longman v Viscount Chelsea [1989] 58 P&CR 189, at p 195, identifies the three categories:"

 

None of the 3 ways as reconfirmed in 2010 after the RRO 2005 came into force had anything to do with the Lender signing the deed.

 

If it is not clear the RRO 2005 was in force

 

 

 

Ben

Edited August 18, 2013 by bhall

[bhall]

Can you imagine how my head feels?......what say Ben's?....(I'm sure he will let us all know in due course)

 

All Ben has to say is, lets wait and see if for a second time, as it has already the Property Chamber concludes that your assertions on this topic are wrong

 

Ben

[bhall]

I have nothing more to say except

 

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.

 

Time for me to go to bed

 

Nite

 

Ben

[bhall]

How can a borrower charge themselves ?

Surely they grant a charge to the lender

 

Yes Is It Me?

 

You are absolutely, 100% correct the borrower does grant (give) a charge to the lender - Only someone with no real understanding of Property Law would disagree.

 

 

 

Ben

Edited August 20, 2013 by bhall

[bhall]

I totally get where you are coming from....

 

I have purposely avoided use of the word 'charge'...it's interpretation etc...simply because I don't want to mislead Caggers into thinking that a

document that is signed by them alone...that will be more than valid to grant a 'Charge'....would mean that the said same document as signed by them alone.....would mean that they have signed a 'valid' 'Deed' ......

 

The result, when you confuse the two concepts was demonstrated in the reply you received from the Property Chamber.....to say...the 'Charge' is not in a form that needs to be executed by the Lender...the 'Charge' is 'this'; the Charge is 'that'.....and basically...they minded that they were going to strike out the application....

 

We don't want other Caggers getting a similar reply....

 

A 'Charge' document..... need only be in a form approved by HMLR....signed by the borrower alone...for it's validity

 

A 'Deed'.....must meet the formalities as stated in the applicable law....signed by Lender and Borrower.....for it's validity....

 

We are talking.....DEEDS....so that if the 'Deed' is void.....the 'Charge' can be rectified or removed from the Borrowers title

 

Apple

 

 

Apple

 

Why try to promote unnecessary complexity, mystique and confusion, when there is none, over something so straight forward as a 'charge by deed expressed to be by way of legal mortgage' ?

 

It is like your posts about mortgage by demise - It was you that first said out of no where that it is a mortgage by demise (even though it clearly isn't) and then you go on to say it can't be, as a borrower can't grant a mortgage by a demise (by law a borrower can and does grant a charge by deed expressed to be by way of legal mortgage).

 

The lender doesn't claim it is a mortgage by demise (only you). The lender claims that it has a charge by deed expressed to be by way of legal mortgage. Whilst it has the same effect as a mortgage by demise (as in it grants the lender the same powers as if it was a mortgage by demise) it is not a mortgage by demise. - very straight forward.

 

Another example is your assertions in relation to what constitutes 'delivery'. Delivery has nothing to do with the signature of the Lender. Delivery occurs as a result of an expression of intent by the grantor to be bound by their deed (an example being the deed being sent to the Land Registry to be completed by registration)

 

I think I must have more faith in the Property Chamber, as it is clear by their initial response - by the use of common sense rather than your interpretation, to understand exactly what is said.

 

If not the deed, what document do you imagine the Property Chamber is referring to when it said that it does not generally need to be executed by the lender ?

 

The deed is the document that is executed by the borrower , when a borrower grants a charge (a charge by deed expressed by way of legal mortgage).

 

Remember s.52 of the LPA 1925, confirms that the document must be a deed.

 

The Property Chamber said:

 

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.

 

There can be no doubt (unless you wish it) that the document in question is the mortgage deed.

 

To try to confuse the use of language serves no real benefit and if anything your repeated attempts to do so is the real distraction to this thread.

 

I can only hope that the decision made by the Property Chamber following the hearing, is in sufficiently clear language to prevent further attempts to cause confusion.

 

Virtually everything you have posted in this thread is based on your interpretation and on you telling people what things 'really' mean ;-)

 

There is nothing within legislation (amended or otherwise) that has been posted in this thread that expressly states that a lender must sign a mortgage deed for it to be valid - The references you have provided in this thread always come with your interpretation - telling people that even though it doesn't actually say it, it means this, this and that.

 

Both s.2 of the LPA MP 1989 and the CCA 1974 contain sections confirming that the applicable agreement to each legislation must be signed by both parties.

 

If the legislator had intended there to be such a requirement applicable to deeds, don't you think the legislation would say so in s.1 of the LPA MP 1989, equally as clearly as it does in s.2 of the LPA MP 1989 and the CCA 1974?

 

The fact remains s.1 of the LPA MP 1989 does not state that the deed must be signed by both the borrower and the lender. Instead you use the legislation that applies to when a company grants a deed of its own.

 

There has been no case law posted that expressly says that a lender must sign a mortgage deed for it to be valid - The references you have posted have been provided in this thread always come with your interpretation - telling people again that even though it does not say it, it means this, this and that.

 

However, there has been case law posted that expressly states the lender does not have to sign.

 

Takeaway your interpretation and neither case law or legislation expressly state that a deed must be signed by a lender to be valid.

 

The Property Chamber has already replied and said that the Lender does not always need to sign.

 

Yet you try to twist it's response to cause sufficient confusion in an attempt to support your previous assertions.

 

Is any of that really helping Is It Me?'s friend or anyone else for that matter. You can continue to dismiss my posts and contributions as 'distractions' - bear in mind the truth will soon be revealed.

 

The truth will reveal the real distractions.

 

I apologise in advance if anything posted above causes offence. I personally feel that time had come for it to be said.

 

No doubt your usual condescending response will follow.

 

Ben

Edited August 20, 2013 by bhall

[bhall]

Then why is Ben so quiet

It is very clear by posts now the horse is changing lanes

 

Ben being quiet ?

 

Your post is timed at 7:56am, my last post was timed at 4:35am

 

It is not possible for me to be on here 24 hours a day. As for the horse changing lanes, we must be watching a different race.. All I can see if the same dead horse being flogged

[bhall]

I appreciate that my last few posts have not directly answered your question..they were not intended to....I want to give Ben the opportunity to answer you.....

 

However.....Yes, I still stand by my stance that the granting of a legal mortgage is illegal since 2002...because the definition of a 'legal mortgage' is found in section 205 (xvi) of the LPA 1925 - that does not change...no matter what Ben says.....it is not my interpretation or opinion...it is what the LAW says.....to find that:-.

 

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

 

and.... because LRA 2002 section 23 (3) © tells you that a 'charge by way of legal mortgage' is a sub-mortgage.....you have no power to grant a 'charge by way of legal mortgage'; ......for to do so would mean you have granted a 'sub-mortgage'; mortgage by demise or sub-demise.....all of which were wholly repealed since 2002.

 

One does not have to have a law degree or have the intellect of Einstein.... to interpret that a 'charge by way of legal mortgage' was repealed by the LRA 2002 no matter if you prefer to use the words found in the LPA 1925 section 85 (freeholds) to say "a charge by deed expressed to be by way of legal mortgage"

 

 

Apple

 

Still ignoring the word or I see

 

 

One of the main effects of the LRA 2002 was to make a charge by legal mortgage the only type of legal mortgage that a borrower could grant to a lender in relation to registered land- This is a legal fact.

 

https://www.lexisnexis.com/uk/lexispsl/property/document/393788/55KG-P261-F18C-4073/Creation%20and%20priority%20of%20mortgages%E2%80%94overview

 

"The legal charge (also known as a charge by way of legal mortgage) is now the only effective way of mortgaging land".

 

The above is from Lexis Nexis - For those not familiar with Lexis Nexis

 

For over 200 years, LexisNexis® with its authoritative information from Butterworths® and Tolley® has combined a deep understanding of the legal and tax profession with technology innovation to help practitioners work more productively, advise with confidence and better manage their organisations in a changing legal environment. -

 

 

 

The borrower can't grant a submortgage.... Come on now Apple.... a submortgage is a mortgage on a mortgage - That in itself says it all.. How can a borrower grant a mortgage on a mortgage it has already given to the lender. - It can't

 

You need to do further research on the terminology used and its meanings

 

http://www.practicalconveyancing.co.uk/content/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.

The effect of a sub-mortgage was considered in the case of Credit & Mercantile Plc v Marks [2004] All ER (D) 174. There have been very few instances when the courts have considered sub-mortgages which makes this case particularly interesting.

 

 

This is where your arguments fall and fail as you don't understand the terminology used

Edited August 20, 2013 by bhall

[bhall]

It appears that he remains adamant that a 'charge' is a 'deed' and that the effect of the lenders name on the register is there because the Borrower had a power to create a legal interest in relation to the Borrowers legal estate in favor of the lender by: "a charge by deed expressed to by by way of legal mortgage"....(LPA 1925 s.85 (1)....

 

Surely................ "Only a person who does not understand property law could make such a statement"

 

Apple

 

Apple seriously I am appealing to you directly - Go into the legal forum and ask them if a following the LRA 2002 if a borrower can grant a charge by way of legal mortgage to a lender.

 

This is a fundamental legal principle following the LRA 2002

 

You need to further research your assertions in relation to this. I mean that with all due respect, you really need to.

 

 

http://www.maitlandchambers.com/images/uploads/documents/Enforceability_and_unenforceability_of_charges_over_land.pdf

 

 

4.1 In the case of registered land Section 23 of the Land Registration Act 2002 gives the owner of a registered estate in land the power enter into a charge by way of legal mortgage of the registered estate or, more simply, to charge the registered estate with the payment of money. Section 24 of the 2002 Act identifies the owner as the registered proprietor of the registered estate or the person entitled to be so registered as the proprietor. Whichever method of charging the land is used, the relevant charge will not take effect as a legal charge until it has been registered against the relevant estate; see Section 27 of the 2002 Act. Section 51 of the 2002 Act further pro vides that, on completion of the relevant registration requirements, a charge created by means of a registrable disposition of a registered estate has effect, if it would not otherwise do so, as a charge by deed by way of legal mortgage

 

You continue to confuse what a borrower as proprietor of the legal estate can do with what a lender as proprietor of the legal charge can do.

Edited August 20, 2013 by bhall

[bhall]

I have today received first notice of arrears after nearly four months of withholding payments and I could certainly do with some interpretations and answers to the above questions, even if it is just perspective at this stage. I need specific replies to the specific questions...

 

Hello UNRAM

 

I think it is time for the interpretations to stop, this thread is quickly turning into a car crash waiting to happen and following reading recent assertions which directly contradict the law - I have reached the point that I don't want to play any further part in this thread that as a result of the advice given by one individual can only lead to one result and that is Is It Me?'s friend losing their home.

 

If I was you, I would make an application to the Property Chamber (or even call the Land Registry) and seek an official response to your concerns - at least you will know then that it is a response that you can rely upon.

 

To that extent I have sent the site team (caro) a message asking for my CAG account to be closed - the assertions made in this thread are dangerous and are baseless in law of common sense.

 

 

Sorry Ben

Edited August 20, 2013 by bhall

[bhall]

To be a deed, a form of charge or other such document must comply with s.1(2) of the LPAMP 1989 as amended. If the form of charge or other such document meets those requirement, it is a deed.

 

As amended

 

(2) An instrument shall not be a deed unless

 

(a) it makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise); and

(b) it is validly executed as a deed:

(i) by that person or a person authorised to execute it in the name or on behalf of that person, or

(ii) by one or more of those parties or a person authorised to execute it in the name or on behalf of one or more of those parties

(2A) For the purposes of subsection (2)(a) above, an instrument shall not be taken to make it clear on its face that it is intended to be a deed merely because it is executed under seal.

 

If the above requirements are met the form of charge is a deed.

 

Using the Land Registry's own form of charge the CH1 form as an example

 

It clearly expresses itself to be signed or executed as a deed

[bhall]

That is what the law says

[bhall]

As amended s.1(3) of the LPAMP 1989

 

(3) An instrument is validly executed as a deed by an individual if, and only if:

(a) it is signed:

(i) by him in the presence of a witness who attests the signature; or

(ii) at his direction and in his presence and the presence of two witnesses who each attest the signature; and

(b) it is delivered as a deed.”

[bhall]

If it was the purpose of the legislation to make the changes to the way a deed is signed/executed (as executed means signed), the legislation would state that.

 

There are repeated posts about the legislators intent to do this and that.

 

The simple fact is that the actual legislation contains no such requirement.

 

I feel for the Caggers that could be left paying back additional legal costs of potentially thousands of pounds based on little more than the ideas posted in this thread.

[bhall]

Am I the only one having a Déjà vu moment here?....

 

Delivered as a deed?

 

Delivery as you, yourself have recently posted (post 1583)

 

"a deed is delivered in law "as soon as there are acts or words sufficient to show that it is intended by the party to be executed as his deed presently binding on him"

 

It is the borrowers deed, delivery takes place when the borrower shows intent to be bound by his deed - when the borrower's solicitor sends it to HMLR for registration as a clear example.

 

In your post

 

"and even that party retains possession of the document"

 

If the assertions of this thread are correct, how can the document be considered to be delivered, if it can be retained by the grantor ? making it impossible for the grantee to sign/execute it ?

 

Please don't refer to the ROO 2005 as it made no change to the above principle of delivery.

[bhall]

There appears to be a complete lack of awareness in the arguments about pm's

 

If a lender starts a claim against you in court, a copy of your defence under CPR 15.6 must be served on the lender.

 

If you make a claim to the Property a Chamber details of your claim are also provided to the lender.

 

In either case you will not be able to pull a rabbit out of the hat by waving a document in either hearing that did not form part of either your claim or your defence.

 

If you choose to reply upon any document, it will need to be disclosed to the lender.

[bhall]

Clearly anyone that is in a position in which they may lose their home, is in a desperate situation.

 

Equally clearly Lea-th intended no malice. You are making a mountain out of a mole hill by focusing on it, when the context was clear.

 

Have you seen how many reputation points Lea-th has ? that is an indication of the number of people she has helped and their gratitude for her help.

 

I hope following the hearing you will contribute to the legal costs of those that have followed your "advice".

[bhall]

Apple

 

Cases are only being adjourned until the Chamber hearing in January.

 

If your arguments are as flawed as I KNOW them to be, what do you think happens to the cases that have been adjourned. What do you think will happen to those families ?

 

The defences that you appear to hold in such contempt, actually work.

 

The don't result in a case being adjourned for weeks or even months, they result in families staying in their home permanently.

 

Something that your 'advice' will not do.

 

Are you saying that every poster offering help in the repossession forum is a stooge ? That view is as flawed as the other thoughts you have shared on this thread.

 

Remember while a case is adjourned families will still have to live with the constant worry that they could lose their family home. The Lenders legal costs which could be passed onto the borrower could also increase during that time.

Edited October 12, 2013 by bhall

[bhall]

This is CAG, not a freeman of the land or void mortgage type site. You will find lots of arguments very similar to your own that don 't work there too if you are really that interested.

[bhall]

There is an elephant in the room that has not really been addressed. That elephant is that the legislation that applies to deed's simply doesn't say that a deed has to be signed by both the grantor (the borrower) and the grantee (the lender)

 

If you look at the legislation for regulated consumer credit agreements - Section 61(1) of the CCA 1974 actually states that the agreement must be signed by the debtor (the borrower) and the creditor (the lender)

 

If you look at the legislation for contracts - section 2(3) of the LPAMP 1989 (as amended) again actually says that a contract must be signed by both parties to the contract.

 

When you look at the legislation that applies to deeds - section 1 of the LPAMP 1989 (as amended), there is no such requirement.

 

It is undeniable, no matter how much it is interpreted or twisted. It just does not say it.

 

My own view on this thread is that it must remain open at all costs at least until the Chamber Hearing. To protect other Caggers from the advice in this thread the outcome of the hearing must be published in this thread.

[bhall]

The Chamber in its initial response went so far as to confirm as a matter of law a lender is not generally required to sign a mortgage deed.

 

The Chamber in its subsequent response to Unram went so far as to confirm that it could not do most of the things asked of it in the amended application.

 

Everything anti the assertions of this thread have been ignored and brushed under the carpet. I fear this is something that will come back to bite Caggers during the chamber hearing.

 

It is fine for Apple to say if the Chamber reject the assertions of this thread an appeal will be made, it is not Apple that has made an application to the chamber and it is not Apple that will be liable for costs. A few people should remember that little fact.

[bhall]

Delivery is about the borrower demonstrating intent to be bound by his deed. Something that is ignored in this thread but should not be forgotten.

 

By a solicitor sending the deed to the HMLR to be registered, intent can be clearly shown.

[bhall]

We're going over old ground here mate, the deed is a speciality contract and must be signed by both the borrower with witnesses and the lender.

I have a offer/contract not even signed by me or my lender. As you have already mentioned does not abide by section 2 lpmpa 89.

Looks like a double whammy then doesnt it! - void contract therefore not payable, void deed therefore not enforceable! Cheers done!!

 

You confuse what the law says with what Apple says

[bhall]

I am afraid you will come to realise how wrong the assertions of this thread actually are. I hope that it does not result in you incurring thousands of pounds in costs.

 

You might want to read what the legislation you have quoted actually says about presumption. It does not say what Apple has told you. Read it for yourself

 

Easy way to prove I am wrong

 

Which specific section of which specific legislation says that a deed must be signed by both the grantor and the grantee - bearing in mind my previous post about the CCA 1974 and s.2 of the LPAMP 1989.

 

Please post that specific requirement as detailed within a specific section of specific legislation without telling anyone what you think it means but what it actually says.

[bhall]

All you had to do is sign it - why didn't you just sign the thing?!!

 

The Property Chamber has already confirmed to Is It Me?'s friend that as a matter of law a lender is not generally required to sign

 

Look at the Land Registry's own mortgage deed the CH1 form. Please look at it yourself, you will see that it is only required to be signed as a deed by the borrower unless there is an obligation to provide a further advance.

 

These are facts that are being disregarded and brushed under the carpet

[bhall]

Apologies to the site team, when relying to time's post I clicked on report and not reply by mistake, please disregard that reporting of that post.