Repossession questioned by deeds not being signed

[Peterbard]

Really?? .... was there something in the CCA that I missed out?

 

There was Ben's post to contradict my post, but his post was taken from the Law comm report...... I was taking my information from the LRA 2002 Bill.....that actually came into LAW - being the LRA 2002 ACT.

 

It's like this Dodge; which is first.... the 'report' or the Bill?

 

You'll find the 'Report' did. Then the Bill followed that....which was ratified into LAW in the LRA 2002.

 

I'm not taking away from what Ben has had to say....but he has not understood the connection at all........and as a consequence; neither have you (no offence).

 

Don't assume because I said we are laypersons, that is to be misconstrued to mean - we are stupid here : )

 

Apple

 

i am not saying anyone is stupid nor do I infer it, I do think you have a problem in the way you assimilate facts, if that is what you are asking. You seem to start off with a conception and the try and interpret everything you read to support it if it doesn't fit you ignore it, this is not the way to acquire knowledge.

[Peterbard]

From the above, I can see you really don't understand do you?

 

As you are not asking but 'telling'.... I will have to leave you to your reliance here Dodge.

 

I too have posted enough time what the LAW says..... there is nothing wrong with the LAW.......it is clear..... you are welcome to continue to avoid the difference between powers of owners of Registered estates and those powers of a owner of an unregistered estate.

 

The person to whom this thread applies understands the LAW and my interpretation of it to his benefit. That's what matters really ; )

 

Apple

 

Again you say someone is wrong despite them stating something which has already been supported by lots of authority, do you want me to print it up again?

and again you demonstrate how you ignore a fact which does not fit your ideas, how can anyone describe this behavior as as anything other than illusionarry or fanciful, if I were you I would consider it a complement.

[Peterbard]

I just hope they get leave to appeal should a decision not go their way.

 

I cant see it, unless there is some argument that is not being shown on here.

[Peterbard]

Like I say.... you don't understand.... it is not my place to 'teach' you ....I can only quote what the law says...

 

I can only apologise that the LAW is not something you subscribe to Dodge.....

 

Apple

 

If you quoted what the law said we would have no problem with you, what you quote is what you think it says, which is usually not the same thing

[Peterbard]

I found this quite instructive also

 

http://www.practicalconveyancing.co.uk/content/view/11667/1125/

 

Charge and mortgages

 

What constitutes an equitable charge? Print

 

 

Background:

 

S.2 Law of Property (Miscellaneous Provisions) Act 1989 ("LP(MP)A")

 

S.2 LP(MP)A sets out the requirements for the creation of contracts for the sale or other disposition of an interest in land. Broadly speaking, in order to be valid and enforceable, they must be in writing, contain all the terms the parties have agreed in one document (or, where contracts are exchanged, in each document) or by reference to other documents and be signed by or on behalf of all the parties to the contract.

 

Equitable charges

 

An equitable charge is created when property is expressly or constructively made liable, or specially appropriated to the discharge of a debt without there being any intention to transfer ownership of the property. In the event of non-payment of the debt, the creditor’s right of realisation is by judicial process i.e. by the appointment of a receiver or an order for sale.

 

S.53 Law of Property Act 1925

 

An equitable charge may be in writing (s.53(1)© Law of Property Act 1925) ("LPA") but is usually created by deed. Section 53(1) LPA requires a disposition of an equitable interest or trust subsisting at the time of the disposition to be in writing signed by the person making the disposition or by his agent or by will. An equitable charge can be created by express intention and terms.

 

Equitable mortgages

 

By contrast, an equitable mortgage of a legal estate arises where there is an agreement to create a legal mortgage or where there is an intention to create security but the formalities for the creation of a legal mortgage have not been complied with (for example it has not been created by deed or a charge in registered land has not been registered). An equitable mortgage is a contract that operates as a security and is enforceable under the equitable jurisdiction of the court. A proprietary interest in the debtor’s property is conferred, or undertaken in a binding manner to be conferred, by the debtor on the creditor.

 

Distinction between equitable mortgages and equitable Charges

 

There is a fundamental difference in the nature of an equitable charge and an equitable mortgage. The remedies available to the equitable mortgagee are more extensive than those available to the equitable chargee; in particular, an equitable chargee does not have the remedy of foreclosure. Older cases blurred the distinction between the two, but recent cases (for example, Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584) have tended to reinforce their differences. That case said that an equitable mortgage is created when the legal owner of the property constituting the security enters into some instrument or does some act which, though insufficient to confer legal title in the property upon a mortgagee, nevertheless demonstrates a binding intention to create a security in favour of the mortgagee. By contrast, an equitable charge which is not an equitable mortgage is created when property is appropriated to the discharge of a debt and confers on the chargee a right of realisation by judicial process (see above).

 

The conceptual difference between a charge and a mortgage is that, with a charge, although the land is appropriated as security for a debt, there is no conveyance to the lender. However, since 1925, it has not been possible to create a legal mortgage by means of a conveyance. Before the introduction of the Land Registration Act 2002 (the "LRA 2002"), a legal mortgage could be created by a demise (or sub-demise in the case of leasehold land) for a term of years, subject to a provision for cesser on redemption, or by a charge expressed to be by way of legal mortgage. Since the implementation of the LRA 2002 on 13th October, 2003, it has only been possible to create a legal mortgage using the second method. Unlike in the case of equitable mortgages and charges, the terms "mortgage" and "charge" in relation to legal mortgages of land have largely become interchangeable.

 

The case of Kinane v Mackie-Conteh [2004] EWHC 998 (Ch) has considered the relationship between s.53 LPA and s.2 LP(MP)A. Was the creation of an equitable charge a disposition which complied with s.53 LPA enforceable notwithstanding that it fell foul of s.2 LP(MP)A? The case concerned an equitable charge, not an equitable mortgage.

 

Facts:

 

Mr Kinane lent money to Mr Mackie-Conteh for a trading venture. Mr Kinane alleged that Mr Mackie-Conteh entered into an agreement whereby he agreed to provide security for the loan by way of a legal charge over his home. The facts surrounding this alleged agreement were in dispute, but it was accepted that the agreement did not comply with s.2 LP(MP)A. Mr Kinane tried to enforce his security to recover the debt. He claimed that the agreement created an equitable charge over the property which was enforceable because it complied with s.53 (1)© LPA. As the equitable charge conferred no ownership or interest in kind but merely gave him certain rights over the house as security for the loan, it was enforceable. Mr Mackie-Conteh claimed that the agreement did not comply with s.53(1)©; s.53(l)© presupposed there to be an existing equitable interest in place capable of being disposed of, which there was not in this case.

 

Decision:

 

The court held that the document was sufficient to create an equitable charge and was enforceable because it complied with s.53 LPA. As Fisher and Lightwood, the text book, says "An equitable charge on land or an interest in land must be in writing signed by the chargor or his agent. An instrument which creates an equitable charge and contains an agreement to create a legal mortgage, but fails to comply with the formalities for an equitable mortgage on land, will still create a valid equitable charge."

 

The court referred to the previous case of Murray v Guinness [1998]. In that case, the chargor executed a memorandum, not under seal, charging land with the repayment of a loan and undertaking to execute a legal mortgage in future. It was held that in so far as the document purported to create an equitable charge, it was valid; for the purposes of s.53(1)© LPA, the disposition was signed by the chargor and did not need to be signed by the chargee. However, in relation to that part of the agreement where the defendant agreed to enter into a legal mortgage, the agreement was a contractual obligation and accordingly should have been signed by both parties to be valid under s.2 LP(MP)A. The invalidity with regards to s.2 LP(MP)A did not strike down the whole document which was effective to create the equitable charge but not to impose the future obligation to create the legal mortgage. Furthermore, in that case, the document in question was creating an equitable charge which did not pre-exist. In Kinane, the court rejected the chargor’s claim that, for s.53 LPA to apply, there must be a pre-existing equitable interest for there to be a disposal protected by the LPA.

 

The court said that the definition of "Disposition" in s.205(1)(ii) LPA includes a conveyance and "conveyance" includes a mortgage or charge. Section 53 LPA relates to the requirements for the disposition of equitable interests and a disposition itself (rather than a contract for the disposition of an interest in land) does not need to comply with s.2. Accordingly, the agreement constituted an equitable charge, rather than an agreement to create an equitable charge, and needed to comply with s.53 LPA, not s.2 LP(MP)A. This part of the agreement was severable from the part which contained the obligation to create a legal mortgage. This obligation was void because it fell foul of s.2 LP(MP)A. Accordingly, no equitable mortgage had come into being.

 

It was clear that Mr Mackie-Conteh had consented to the charge on his property in favour of Mr Kinane to secure the loan and therefore the document was sufficient to create an equitable charge which was enforceable because it complied with s.53(1)© LPA.

 

Comment:

 

From these cases, it appears that where a person signs an agreement with the intention of granting a charge over a property in future as security for a loan, the document may be construed as an equitable charge. If it is in writing and signed, it will be enforceable even though it would not be if treated as an agreement to grant a charge because of s.2 LP(MP)A.

 

As mentioned above, one of the ways an equitable mortgage can arise is where there is an agreement to create a legal mortgage. Such an agreement must comply with s.2 LP(MP)A. Before the LP(MP)A came into force (on 27th September, 1989), an equitable mortgage could be created where the debtor merely deposited the title deeds with the lender. Sometimes, a memorandum was signed recording the deposit and the terms agreed between the lender and borrower. Since the LP(MP)A came into force, it has not been possible to create an equitable mortgage by mere deposit. Deposit of title deeds is part performance of an agreement to create a legal mortgage and so the agreement must comply with s.2 LP(MP)A. In other words there must be some formal contract in writing which complies with s.2 in addition to the deposit of title deeds.

 

The case of De Serville v Argee Ltd [2001] also considered the interaction between s.2 LP(MP)A and s.53 LPA. In that case, a chargor deposited title deeds with a chargee. There was an exchange of letters but these were not sufficient to comply with s.2 LP(MP)A. Accordingly, there was no valid agreement to create a legal mortgage. However, the court said that the existence of one or more documents which govern the position between the parties (e.g. the letter in this case), could constitute an immediately effective disposition of property which complied with s.53(i)LPA, as opposed to an agreement to create security. The letters might be sufficient to create the charge, and not the act of deposit of title deeds itself. There was no need for the document to use the word "charge"; any form of words, which was apt to create an immediate security, would suffice. © Allen & Overy

 

Three you Apple the first one I came to going back through the thread, I have highlighted the relevant part fr you, although reading it all would do no harm

[Peterbard]

Having read the last couple of pages of posts I can't see anything that hasn't been said before that is of any help to anyone. The case(s) is/are with the tribunal and at the moment it's up to the chamber to decide. Personal differences of opinion are fine but unless it helps anyone can people please keep it civil. If posters don't find that possible it may be necessary to close the thread temporarily.

 

I think closing this thread would be an excellent idea, till after the case anyway. Not that what I think makes any difference in this of course.

[Peterbard]

There is an argument that is not on the thread. I did tell you about it. You must have missed my post mentioning it Dodge?

 

Apple

 

Yes think I asked you what it was, did you reply and I missed it?

[Peterbard]

It is necessary to review your posts prior to authorising them. Once we're happy that you can abide by the site rules we will reiew your moderation. For the record, it's not me that does that.

 

I'm not keen on having the thread closed.

 

Mind if there is a secret defense in the offing, that we are not allowed to see, and all the other avenues have bee destroyed, sorry I mean discussed, there seems like little point in continually going over old ground

[Peterbard]

Can you tell me dodgeball which court and judge made the ruling you qutoe?

What does it say under LP 23 please answer ALL the sec: therein, namely 3!

And by the way the chamber have confirmed the word OWNER is the borrower he who owns the house!

 

Not sure which ruling you refer to IIM

 

The court would be right the owner of the estate would be the borrower, the owner of the charge would be the lender, they would also hold entitlement to the legal "tilte" under the mortgage agreement. If the borrower owned the charge as well as the estate of course the lender would have no security, and none of the case law and legislation or indeed any secured loan agreement anywhere would make any sense.

 

(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.

 

This you mean ? this refers to a sub charge, this is when the lender decides to use his equity in the borrowers property in order to procure finance from a third party. Lots of case law for this, including some where the lenders right to enforce was challenged because of an outstanding sub charge , but I am sure you have already read it.

 

Any way it seems that Apples secret weapon is dong the rounds Via PM, and since there is nothing new on here I will leave you to it until the hearing.

 

As a final note I do wish well in this despite being doubtful(to say the least ) of the methods you are using, and hope that this secret weapon is something that none of us have thought of and saves the day for you.

[Peterbard]

This is the FULL sec not just the bit you post Ben

23 Owner’s powers

 

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

 

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

 

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

 

(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 CLEARLY states you CAN NOT do that which you have tried very very hard to say we can Ben , nice try lol

 

I know I said I wold not comment on here again but it really is exasperating.

 

Where exactly does it say that a owner of a registered estate cannot create a mortgage by way of a charge ?

[Peterbard]

It will take a while.

 

Some have no issue in understanding that 'yellow and blue make Green'

 

Some will insist that - No - it is 'Blue and Yellow that makes Green'.

 

The outcome will be the same....so long as yellow and Blue is the ingredient.... it will always be Green.

 

under LRA s.23 no borrower has statutory power to grant a mortgage by demise nor a legal charge or any type of disposition that will cause the same effect - The Law is the Law....it is Yellow and Blue.....the FACT remains.....as a Borrower - no matter which way round you look to interpret the statute.....it remains the same.....you still have no power to mortgage your "Estate" or mortgage your "Charge" by way of Legal Sub-Mortgage.......end of ; )

 

 

Apple

 

I see what you are saying here apple about people taking the ingredients of an argument and coming to a conclusion, and you have taken them and done just that ,as have Ben and as have I.

 

Yet using the same starting facts you have come up with a completely different result, which is fine.

 

The difference is that there are others off here that have reached the same conclusions as Ben and i with the same facts, Ben has posted up many, many pieces of evidence which duplicate the same end findings.

 

However you have not shown anyone else who has duplicated your findings, or agrees that those starting point give the same result that you say they do , all the authority says different.

Can you explain this ?

[Peterbard]

Dodgeball,

 

Originally Posted by IS IT ME?:

This is the FULL sec not just the bit you post Ben

23 Owner’s powers

 

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

 

(a)power to make a disposition of any kind permitted by the general law in relation to an interest of that description,

 

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

 

(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 CLEARLY states you CAN NOT do that which you have tried very very hard to say we can Ben , nice try lol

I know I said I wold not comment on here again but it really is exasperating.

 

Where exactly does it say that a owner of a registered estate cannot create a mortgage by way of a charge ?

 

I can not see for the life of me why you are so so blind and just out to wind people up,

Does it not say. OTHER THAN!!!!!!!!!!!!!!

We had this at the chamber

I can not be any clearer than that YOU CAN NOT DO IT !!!!!! Understand

This has been as much confirmed at the hearing!

 

Sorry IIM and I assure you i am not trying to wind anyone up just trying to see your point, you mean this;

 

"other than a mortgage by demise or sub-demise, and"

 

This simply means that the owner of the estate can make any Kind of mortgage OTHER THAN a mortgage of this particular type(ie by demise) ?

[Peterbard]

Sorry IIM and I assure you i am not trying to wind anyone up just trying to see your point, you mean this;

 

"other than a mortgage by demise or sub-demise, and"

 

This simply means that the owner of the estate can make any Kind of mortgage OTHER THAN a mortgage of this particular type(ie by demise) ?

 

Sorry IMS . I see you may be referring to the "other than" in section 2 ?

 

Section two refers to the owner of the charge(ie the lender) it relates to A sub-charge, this has been explained earlier in the thread and is when the lender seeks to raise capital by using his charge as further equity on another loan with a third party.

 

It says that the lender cannot make a mortgage , obviously because he does not own the estate, just the bit that consists of his charge.

 

Is that clearer?

[Peterbard]

Speak of 'charges by way of legal Mortgage is the same as a mortgage by demise; there is no ambiguity whatsoever.

 

This is the definitiion of 'mortgage' taken from the LPA 1925 s.205:

 

(xvi)“Mortgage” includes any charge or lien on any property for securing money or money’s worth; “legal mortgage” means a mortgage by demise or subdemise or a charge by way of legal mortgage and “legal mortgagee” has a corresponding meaning; “mortgage money” means money or money’s worth secured by a mortgage; “mortgagor” includes any person from time to time deriving title under the original mortgagor or entitled to redeem a mortgage according to his estate interest or right in the mortgaged property; “mortgagee” includes a chargee by way of legal mortgage and any person from time to time deriving title under the original mortgagee; and “mortgagee in possession” is, for the purposes of this Act, a mortgagee who, in right of the mortgage, has entered into and is in possession of the mortgaged property; and “right of redemption” includes an option to repurchase only if the option in effect creates a right of redemption;

 

Hope this helps those who are guided by Ben's 'concern' to ensure they do not become misguided ; )

 

Apple

 

Yes apple this is because in 1925 the two types of mortgage where treated as a legal mortgage

 

Later this was changed by the LRA and demise mortgages became un-lawful, lots and lots of mentions of this in Bens posts.

[Peterbard]

Hi Ben, Just a quickie, In the above extract from 'Garguilo', the Property Chamber's Adjudicator states that the 'charge will fall away', can you explain what that means, in laymans terms, please?...BP

 

I will answer for you all. It means that the charge was n longer effective on the estate it was erased , defunct gone.

Although how that helps the OP is a complete mystery to me anyway, because in that case the charge was a third part to the mortgage.

[Peterbard]

Lots and lots in the application and argument before the Chamber too - the Lender was DUMBSTRUCK - he had NO DEFENCE

 

I think you will find that Ben's posts imply that 'mortgage by demise' is unlawful but he reckons that a 'charge by way of legal mortgage' is OK - funny really when you look at the definition in LPA 1925 to see that they are all the same thing giving exactly the same effect hey??

 

Pretty much sums up Ben's understanding of property law really doesn't it?

 

I'm hopeful that Lenders will rely on Ben's interpretation and understanding though ; )

 

Apple

 

Great lets see this evidence you speak of.

 

I think it is the LRA that says that mortgages by way of charge are "OK" and those by demise are not

 

EDIT and everyone else of course

[Peterbard]

Hi Dodgeball, I really was hoping that I would get a response from the person I had directed the question to, as that's how it works in polite debates.

 

 

However, I do believe your observations about 'the charge' is the same as my interpretation! I note that you then went on to add 'the charge was a third part to a mortgage', not totally sure what you mean by that!

 

 

But;

 

 

If you mean that the case was complicated, then be assured I have read the whole case and I fully understand and agree with that observation.

 

 

If you meant that you don't understand what the OP's reliance on it is, then let me explain it to you from my interpretation of the case in just a few sentences;

 

 

The Garguilo's were cheated by associates of theirs, these associates then went on to mortgage the property with a lender (Lloyds Bank). The Adjudicator, having applied there 'interpretation' of statute & case law surrounding 'speciality contracts' made a decision that came to the same conclusion that you and I have just agreed upon, i.e. the deed is void and the charge falls away....

 

 

The OP and others reliance on case law in this instance is, a deed is a 'speciality contract' and as such the T&C's form part of that 'speciality contract', hence; no signature from both parties on either the deed or the T&C's, then no contract, no deed, and no charge! Therefore, nothing for the Lender to rely on....BP

 

Yes I see what you are saying howeever a couple of points. Firstly it was the borrowers signature which was in question(or one of them)

 

Secondly Ellens question was relating to the enforceability options of the lender if a deed was proven to be void and therefore the charge drops away.

 

The point I was making is that the case you mention is complicated because the borrower is not the owner of the title of the estate, the deed which was not correctly executed was not the one with the lender for a loan it was with the title holder and gave him authority to apply for a secured loan, by giving him interest in the property.

 

When that fell away the interest in the property did also, so the problem as far as the lender is concerned is who do they sue ? Is it the fault of the borrower who after all had the money, or is it the fault of the owner who did not ensure that the security was properly made.

 

Of course none of this applies to the OP as they are the owner of the estate, IMO if the charge was not effective because for some reason the deed was wrongly made the agreement would still enable the lender to enforce through the judicial process and gain both a charging order and eventual possession.

[Peterbard]

Ben, this is getting petty.

 

More beer garden than constructive debate.

 

I'll come back when it returns to Is It Me's thread.

 

Apple

 

LOL

 

Why is it apple when Ben catches you with a faux pas, you want to go to the beer garden.

 

Alcohol is not the answer you know

[Peterbard]

Hi Dodgeball,

 

 

I can see where your going with this, but;

 

 

The OP's application is much more straight forward than 'Garguilo' (i.e. no tri-party agreements to deal with), it comes down to just two parties involved, the borrower and the lender.

 

 

The principle relied upon from 'Garguilo' remains the same, if the deed is not executed by the lender and the T&C's are not signed by both parties to it and remembering were discussing 'speciality contracts' here, then their is no agreement, no deed and no charge that the Lender can rely on to secure any monies from the borrower.

 

 

All of this is easily rectified, for those who might be looking to seek a mortgage in the future, by the lender simply signing the 'Deed'...BP

 

I think if you are arguring that the deed in the OPs case can be void in the same way as the case you mention you will be hard pressed.

 

A form for the creation of a mortgage under the LOPA and LRA is well documented and nowhere does it state that the signature of the lender should be present, this is the kind of agreement the OP has.

 

The agreement and the deed in the case mentioned was a different arrangement, and indeed the mismanagement of the paperwork was far more involved than just the lack of a signature.

[Peterbard]

In addition Bp

The issue on which the court ruled that the deed was void was

 

Execution of the lease

The Adjudicator found:

1 the signature page and the plan were signed by the third party and that he did so knowingly and willingly. The Lease was therefore not a forged document.

2 As to section 1 (3) of the 1989 Act Mr and Mrs Garguilo submitted that even if the signatory pages of the Lease were, as found, executed separately and inserted into the Lease this invalidates the instrument as a matter of law.

Section 1 (3) provides

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 his signature’

- See more at: http://www.commercialblawg.com/business-law/garguilo-v-jon-howard-gershinson-2-louisa-brooks-joint-fixed-charge-receivers-of-desmond-daniel-charles-moore/#sthash.oW16wmb5.dpuf

 

Which again applies to the borrowers(in the ops case) signature only, not the additional lenders signature.

[Peterbard]

 

The word used for your benefit was 'Principle', I then pointed you at 'Garguilo' for 'Statute' and 'Case Law', I believe Case Law and Statute are 'Principles' that you informed us, you base your interpretations on, no?...BP

 

Your right, i do , see above .

],

[Peterbard]

Hi Dodgeball, In the hope that we can move this forward, what's your opinion on the following extract from the link you posted above:

 

 

Conclusion

The register was rectified by cancelling the lease and the charge. 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.

Of significant interest is the adjudicator’s use of section 131 (2) of the 2002 Act and the key as to who is in possession and thus who was entitled to apply for alteration. Indeed the land registry have now altered its practice note.

- See more at: http://www.commercialblawg.com/business-law/garguilo-v-jon-howard-gershinson-2-louisa-brooks-joint-fixed-charge-receivers-of-desmond-daniel-charles-moore/#sthash.oW16wmb5.Y9Jg1gDV.dpuf

 

I am not sure what you mean by"move this forward", I had no idea we had stalled.

 

Anyway the quote refers to this particular case relates to possession and the charged estate, of no relevance to the OPs situation

[Peterbard]

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

 

I think ben covered it

[Peterbard]

Hi Ben,

 

I asked for Dodgeball's opinion on this recent (January 2012) case, as my interpretation of it might have differed slightly!

 

However, you have now confirmed my interpretation, the Lender ended up with nothing.

 

What I was looking to establish was simply this;

 

The OP and others partially rely on the principle set in 'Garguilo', in which the Ajudicator discusses some of the formalities associated with 'speciality contracts', because it is applicable case law.

 

 

And, that if Lenders choose to ignore these formalities or don't take these formalities into account then the deed can and will be declared void ...BP

 

Just a minor point we do not know that the lender ended up with nothing in the a fore mentioned case, as far as I know there has been nothing mentioned about further action, but I am sure that the lender would not just write-off any liabilities under the agreement, they would have pursued one or other of the parties I am sure.

 

As I said earlier though, if the point you are trying to make is that the charge was lost, then you are right in this case it was.

 

However as said this is nothing to do with the OPs case.

[Peterbard]

/'/#

Hi Dodgeball,

 

Your correct, we don't know for sure what the lender was left with, although, just like you, we can speculate based on interpretation. We do, however, know what the Lender was advised. The Adjudicator advised thus;

 

 

'The Bank may or may not be entitled to be indemnified under section 103 and Schedule 8 to the Act'

 

 

Now, what agreement are you referring to? and pursue whom and based on what?

 

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

 

When someone takes out a loan with a bank there is a thing called a loan agreement. This sets out the agreement for the repayment, interest to be charged default charges etc, in case of default the lender usually pursues the debtor for liabilities under it, this forum is full of em.

 

I rely on applicable case law and statute this is not applicable common law.

 

Edit, i get a feeling that someone is trying to make some kind of point here not sure what it is though