Repossession questioned by deeds not being signed

[applecart]

The Loan Agreement is a bilteral agreement providing for the borrower to grant security in exchange for a loan. The bank will argue that the mortgage deed is a separate document which does nothing more than charge the property.

 

No Lender can circumvent the LAW......or rely that the Chamber will assist him to do so......

 

They are of course welcome to 'try'.......However.... they will find that in relation to securing a speciality debt against the borrowers registered estate.....They should have observed the duty to 'execute' the deed and observe that they cannot 'mortgage' registered land.

 

Apple

[applecart]

Furthermore, if we look to Part 55 Possession Claims - of the Civil Procedure Rules we find

 

55.1

 

© ‘mortgage’ includes a legal or equitable mortgage and a legal or equitable charge and ‘mortgagee’ is to be interpreted accordingly;

 

55.2

 

(1) The procedure set out in this Section of this Part must be used where the claim includes –

(a) a possession claim brought by a –

(i) landlord (or former landlord);

(ii) mortgagee; or

 

I hope Apple this helps you with your focus ;-)

 

Ben.... you are missing the contention on this thread......

 

A Lender cannot 'mortgage' a registered estate......CPR RULE 55.2 should not come into the equation at all.....for years we have been mislead into accepting that it should.......HOWEVER

 

Things are about to change..... you watch this space...

 

Don't you fear.... My Focus is clear.....

 

 

Apple

[UNRAM]

The Loan Agreement is a bilteral agreement providing for the borrower to grant security in exchange for a loan. The bank will argue that the mortgage deed is a separate document which does nothing more than charge the property.

...but that's not the case... no one would unconditionally charge their property... they do so only to obtain credit... there's something in it for both parties... it's part of an agreement... a "mortgage agreement"... its nothing more than a play on words (not yours I realise...) to suggest that the mortgage deed is a "separate document". The terms are conditions are defined under contract... under agreement... by the "agreement"...

 

Worth mentioning: I have a unilateral loan "agreement" signed only by me which defines the actual terms and conditions to be used in the deed... There is no "bilateral" element to my "agreement" with the lender at all. What terms and conditions do they rely on? What terms and conditions can be enforced if a judge says "yes, its a deed"...?

Edited October 22, 2013 by UNRAM

[applecart]

Remember s.1(2)(b) of the Lpa(mp) as amended by the ROO 2005 states

 

(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

 

As we know s.1(2) confirms that "by that person" that person is the person making the deed.

 

So a document is a deed if it is validly executed by the borrower.

 

So the borrower has to validly execute the deed. Now what does the borrower have to do to validly execute a deed ?

 

 

(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.

 

We know it has to be validly executed as a deed by the borrower as it is the borrower making the deed ( granting the charge).

 

Even reading the act as amended makes it clear that delivered as a deed is an action to be performed by either by or on behalf of the borrower. Why is this so clear ? The law confirms that if it is not delivered as a deed, the document is not validly executed by the borrower.

 

The deed is delivered on behalf of the borrower by the Solicitor as per s.1(5) of the LPA(MP) 1989 as amended.

 

The LPA(MP) 1989 as amended does not state that delivery is an act to be performed by the Lender. Think about it, to be validly executed by the borrower, it has to be delivered as a deed. It does not say to be validly executed as a deed it has to be delivered by the lender / grantee

 

I think this is why I find this topic so frustrating because the law is very clear, it is not until Apple fulfils some need to 'interpret' and state what Apple thinks things really mean is there any confusion. This sadly is a self generated confusion, to make fanciful ideas sound plausible or even to have some legal basis, when those ideas really contradict what the law actually states.

 

The LPA(MP) 1989 as amended does not serve to transfer the act of delivery from the borrower to the lender. This is clear as delivery is part of what is required by law for a deed to be validly executed by the borrower.

 

If the RRO 2005 did not make the change as suggested by Apple we can look to case law also referred to as common law to establish the Courts view on this topic.

 

The Courts view can be established by looking at Eagle Star Insurance Company Ltd v Green & Challis [2001] EWCA Civ 1389. In this case the Court reached the judgement that a mortgage deed only had to be signed by the borrower and that there was no requirement for it to be signed by the lender.

 

If as above the RRO 2005 did not change the law as Apple suggests, the Courts view in Eagle star still stands.

 

The majority of what you say here Ben meets the 'approved form of charge' by HMLR

 

It does not meet the formalities in relation to the Deed required by statute.

 

Remember.....You started off at one point advising that the RRO did not apply to 'individuals' (Borrowers).....you now conveniently tell us that the RRO was responsible for 'amending' the law in relation to 'individuals' (Borrowers) - in particular you refer to section 1 (2) and 1 (3).....

 

So, when it suits your convenience.... it is ok to say, 'yes' the RRO applies to Borrowers...then, when it does not assist your point.... you change tack and tell us...'no'...the RRO does not apply to Borrowers.....

 

You will note.... I have remained consistent in what the LAW says Ben...... there is no 'F' in my understanding of the LAW.....

 

So, are you happy (at this point...afterall, we know you may yet change tack again at some point) to accept that section 1 (3) applies to Borrowers and their duty to sign the Deed?

 

Whether you are or NOT.....

 

You will find that in both section 1 (2) and section 1 (3) the Legislator.......has REMOVED the words 'by the person making it' from BOTH sections Ben......you need to remove the 'F' from your contentions and stick to the LAW....oh, and when you do make sure you quote it correctly......otherwise you end up with those very 'FLAWS' you keep inserting into the LAW that you mistakenly apportion to my good self!!

 

Apple

[applecart]

In this document that you posted up recently Ben….see Page 95 - 11.13.....

 

http://lawcommission.justice.gov.uk/docs/cp143_Execution_of_Deeds_and_Documents_Consultation.pdf

 

It speaks of the”face value” requirement…..see for yourself what the issue is….see for yourself that due to HMLR practice of 'approved forms of charge' we as Borrowers are finding that Lenders are passing off that they have a VALID DEED…. When in TRUTH…they DO NOT!

“The “face-value” requirement

 

11.13 There appear to be differing views in practice as to what is sufficient to satisfy this requirement, which was created by section 1(2)(a) of the Law of Property (Miscellaneous Provisions) Act 1989, and is reflected by sections 36A(5) and (6) of the Companies Act 1985. The position where a document is sealed, but there is no other indication that it was intended to be a deed, has been considered above in the context of “contracts under seal”. Moreover, the Land Registry’s stated practice is that a 17 document which describes itself as being a type of instrument which, by its nature, is required by law to be by deed (for example a document commencing “This Conveyance”) is sufficient for the purpose of section 1(2)(a). This may be justified 18 by the words “(whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise)” (our emphasis) in section 1(2)(a), and also, perhaps, by section 57 of the Law of Property Act 1925. Nonetheless, there are difficulties. 19 If correct, this practice might be considered tantamount to abolishing this particular formality altogether. It is also difficult to reconcile this approach with the principle 20 that a purported lease which fails to meet the necessary formalities may nonetheless take effect as an equitable lease.”

 

The footnote for “20” says this:

 

We have previously rejected the suggestion that the mere use of words like “lease” or “mortgage” 20 would suffice. “It seems essential to avoid a situation where a document is held to be a deed simply because it was used in a transaction where a deed is required. This would amount to abolishing formalities for deeds altogether”: Law Com No 93, para 8.3(ii).

 

What now Ben??......do you still see a 'F' in my interpretation of the LAW as relied upon on the findings of the LAW Commission.... or do you want us all to see it from Ben and Co....student manuals point of view....that tactically taps in and out of the LAW as and when Ben and Co find it convenient to do so????

 

Apple

[applecart]

...but that's not the case... no one would unconditionally charge their property... they do so only to obtain credit... there's something in it for both parties... it's part of an agreement... a "mortgage agreement"... its nothing more than a play on words (not yours I realise...) to suggest that the mortgage deed is a "separate document". The terms are conditions are defined under contract... under agreement... by the "agreement"...

 

Worth mentioning: I have a unilateral loan "agreement" signed only by me which defines the actual terms and conditions to be used in the deed... There is no "bilateral" element to my "agreement" with the lender at all. What terms and conditions do they rely on? What terms and conditions can be enforced if a judge says "yes, its a deed"...?

 

Hi UNRAM

 

Your logical conclusions are backed up by Statute.... Ben & Co seem to insist that LAW is to be spelt 'FLAW'.......in an attempt to undermine the intelligence of each and every Borrower.....

 

Fortunately......we are well aware where the 'F' letter came from...in our UK LAW.....

 

The issue as you know is before the Chamber for a determination.......and it will remain an issue with the Chamber if necessary on appeal and in further applications until such time as this FLAW (promoted by Ben & Co) is removed as a 'blight' on the financial well being of each and every Borrower in the UK....

 

Apple

[applecart]

Oh and just in case you missed this BEN:

 

For those Borrowers who signed Deeds after 1926 BUT BEFORE October 2003.....Let's discuss THIS:

 

25 Proprietor’s power to create charges.

 

(1)The proprietor of any registered land may by deed—

(a)charge the registered land with the payment at an appointed time of any principal sum of money either with or without interest;

(b)charge the registered land in favour of a building society [F1(within the meaning of the Building Societies Act 1986) in accordance with] the rules of that society.

(2)A charge may be in any form provided that—

(a)the registered land comprised in the charge is described by reference to the register or in any other manner sufficient to enable the registrar to identify the same without reference to any other document;

(b)the charge does not refer to any other interest or charge affecting the land which—

(i)would have priority over the same and is not registered or protected on the register,

(ii)is not an overriding interest.

(3)Any provision contained in a charge which purports to—

(i)take away from the proprietor thereof the power of transferring it by registered disposition or of requiring the cessation thereof to be noted on the register; or

(ii)affect any registered land or charge other than that in respect of which the charge is to be expressly registered,shall be void.

 

The above is taken directly from the LRA 1925 Section 25.......it relates to the POWER of the PROPRIETOR of a REGISTERED ESTATE during the stated period.....

 

CAN ANYONE SEE A POWER TO CHARGE THE REGISTERED ESTATE WITH A MORTGAGE??............... .....OR DOES IT ACTUALLY SAY essentially that:......ANYTHING OTHER THAN A CHARGE TO SECURE INDEBTEDNESS......."SHALL BE VOID"????

 

So, there you have it - NO 'F' in LAW......all is transparent...whether you took out a loan with a view to securing the indebtedness .... so long as the land was 'REGISTERED'.......you can be assured....any 'mortgage' is UNLAWFUL

 

And .... ANY DEED that meets only the 'approved form of charge' by HMLR is VOID for want of DELIVERY!!!!

 

What NOW Ben??? ; )

 

 

Apple

[bhall]

Good Morning Apple

 

I think you deserve to be congratulated. It must take a lot of effort to be so wrong about so many different things.

 

You are wrong about the effect of the POA, you are wrong about the meaning of Full Title Guarantee, You are wrong about a mortgage by demise being the same as a mortgage by legal charge, you were wrong about paragon v pender, you are wrong about securitisation, you are wrong about a borrower being unable to grant a legal mortgage, you are wrong about mortgage deeds , you are wrong about the RRO 2005, the list goes on and on.

 

Even on the balance of probabilities, you should have at least got one thing right in the months you have been posting about Property Law.

 

Reading your posts, I think I have realised your problem. You decide on a point of view first and then fit (interpret) facts to support your point of view, when you should really use what the facts actually say to reach a point if view.

 

As a result you have become blind to anything and everything that shows that you are wrong, to accept one thing, your fanciful ideas would come crashing down like a house of cards.

 

No wonder you are so insistent that you are right about anything and everything ;-)

 

For the effort you have put in to get so many things wrong, I salute you for the sheer effort it must have taken

[bhall]

Always remember Apple, the law is what it is, not what you say it is.

 

If you remember that you will go far.

 

Stay focused Apple, you stay focused.

[UNRAM]

Originally Posted by steampowered

 

"The Loan Agreement is a bilteral agreement providing for the borrower to grant security in exchange for a loan. The bank will argue that the mortgage deed is a separate document which does nothing more than charge the property".

...but that's not the case... no one would unconditionally charge their property... they do so only to obtain credit... there's something in it for both parties... it's part of an agreement... a "mortgage agreement"... its nothing more than a play on words (not yours I realise...) to suggest that the mortgage deed is a "separate document". The terms are conditions are defined under contract... under agreement... by the "agreement"...

 

Worth mentioning: I have a unilateral loan "agreement" signed only by me which defines the actual terms and conditions to be used in the deed... There is no "bilateral" element to my "agreement" with the lender at all. What terms and conditions do they rely on? What terms and conditions can be enforced if a judge says "yes, its a deed"...?

bhall do you have an opinion on this?

[marika41]

Hi all, can someone confirm what the official copy of the deed looks like from the LR? I have received this morning a single A4 sheet of paper of my deed,no LR stamps on at all.Is this what everyone receives?

[applecart]

Good Morning Apple

 

I think you deserve to be congratulated. It must take a lot of effort to be so wrong about so many different things.

 

You are wrong about the effect of the POA, you are wrong about the meaning of Full Title Guarantee, You are wrong about a mortgage by demise being the same as a mortgage by legal charge, you were wrong about paragon v pender, you are wrong about securitisation, you are wrong about a borrower being unable to grant a legal mortgage, you are wrong about mortgage deeds , you are wrong about the RRO 2005, the list goes on and on.

 

Even on the balance of probabilities, you should have at least got one thing right in the months you have been posting about Property Law.

 

Reading your posts, I think I have realised your problem. You decide on a point of view first and then fit (interpret) facts to support your point of view, when you should really use what the facts actually say to reach a point if view.

 

As a result you have become blind to anything and everything that shows that you are wrong, to accept one thing, your fanciful ideas would come crashing down like a house of cards.

 

No wonder you are so insistent that you are right about anything and everything ;-)

 

For the effort you have put in to get so many things wrong, I salute you for the sheer effort it must have taken

 

Hi Ben....

 

 

I'm sure off the back of the above response to the LAW that I have continually posted......without the 'F' in front of it......I think you alone have just encouraged probably 000000's more applications to be sent off to the Chamber.....

 

You should be congratulating yourself as well...... not just me alone : )

 

But Thanks anyway mate .....much appreciated....

 

Apple

[applecart]

Hi all, can someone confirm what the official copy of the deed looks like from the LR? I have received this morning a single A4 sheet of paper of my deed,no LR stamps on at all.Is this what everyone receives?

 

That don't sound like they have sent you an official copy at all.....does it show a space for execution by C & G or is it showing just what you signed?

 

Official Copies have a LR stamp on them.....uuuummmmmm??

 

Apple

[applecart]

Always remember Apple, the law is what it is, not what you say it is.

 

If you remember that you will go far.

 

Stay focused Apple, you stay focused.

 

eeeeeerrrrrmmm... ok??

 

I will keep this in mind each and every time I post up LAW without 'F' in front of the LAW.....

 

By the way Ben......Just so you can confirm for us again.....that 'balance' you were on about.......Does the RRO remove the words 'by the person making it' from BOTH section 1 (2) and 1 (3) of the LPMPA 1989 OR NOT?????

 

Apple

[IS IT ME?]

Apple,

I see that you are still Wrong about every thing lol

BUT THIS IS WHAT THE LAW STATES

 

It is the Borrower who will be registered as the 'Absolute Proprietor' Ben.....it is the Borrower who derives 'Owners Powers' in relation to a) The registered Estate AND b) the Registered Charge......

BUT THIS IS WHAT THE LAW STATES SO HOW CAN IT BE WRONG LOL

APPLE I think as I've said they will try every thing to put people off or stop people from taking this action.

BUT THEY WILL NOT BECAUSE IT IS RIGHT.

I also ask why Ben does not answer questions again when put to him or her???

[applecart]

Hi Marika

 

Have a look at this link....of a typical .....'form of charge' posing as a valid deed....

 

http://webcache.googleusercontent.com/search?q=cache:ZjBw9faQVzMJ:www.themortgageworks.co.uk/includes/pdf/T118_v8bw.pdf+&cd=9&hl=en&ct=clnk&gl=uk

 

The Lender will not execute this document or intend to 'release' it's 'mortgage' until you have 're-paid' the loan in full.....

 

Most of the 'forms of charge' are in this format.....and meet HMLR approved 'form of charge'.......

 

Apple

[MUTT1]

Hi marika41,

 

You should have received from LR an accompanying letter with your mortgage deed headed Official Copies. On your deed document you will have a LR stamp stating Land Registry Official Copy.

 

The mortgage deed document would have your signature, witness and the company which is acting as the lender. It will also state somewhere on the document that it is a deed and, probably at the bottom of the page (you will only get 1 sheet), you will see that it is a form of charge filed at H.M. Land Registry under reference the number that will start with MD and have specific numbers following that apply to the lender.

[applecart]

QUOTE=IS IT ME?;4376710]Apple,

I see that you are still Wrong about every thing lol

BUT THIS IS WHAT THE LAW STATES

 

It is the Borrower who will be registered as the 'Absolute Proprietor' Ben.....it is the Borrower who derives 'Owners Powers' in relation to a) The registered Estate AND b) the Registered Charge......

BUT THIS IS WHAT THE LAW STATES SO HOW CAN IT BE WRONG LOL

APPLE I think as I've said they will try every thing to put people off or stop people from taking this action.

BUT THEY WILL NOT BECAUSE IT IS RIGHT.

 

I spoke to the Chamber the other day......they kindly informed me that they have been receiving 00000's of applications.......it must be due to all them 'F'LAWS that Ben keeps going on about......LOL

 

There is another issue with the registered forms of charge that the Chamber are beginning to realise as well......but eeeermmmm...... I will keep that particular 'F'LAW under my hat for now : )

 

Chamber seem well set up to handle as many applications as Ben is encouraging to be sent.....cor Ben......you ain't 'alf keeping the Chamber busy mate....

 

Apple

 

 

I also ask why Ben does not answer questions again when put to him or her???

[applecart]

Apple,

I see that you are still Wrong about every thing lol

BUT THIS IS WHAT THE LAW STATES

 

It is the Borrower who will be registered as the 'Absolute Proprietor' Ben.....it is the Borrower who derives 'Owners Powers' in relation to a) The registered Estate AND b) the Registered Charge......

BUT THIS IS WHAT THE LAW STATES SO HOW CAN IT BE WRONG LOL

APPLE I think as I've said they will try every thing to put people off or stop people from taking this action.

BUT THEY WILL NOT BECAUSE IT IS RIGHT.

I also ask why Ben does not answer questions again when put to him or her???

 

Hi Is It Me...

 

I tried to respond to this...it didn't come out right : (

 

ah well...... we know the score....even if Ben doesn't

 

Apple

[marika41]

Hi, Yes i did receive an attached letter saying it was an official copy saying it may not be the same size as the original, it says the lender is cheltenham and gloucester and the mortgage conditions are cheltenham and gloucester mortgage conditions 1995. Written along the side it has, we hereby certify this to be a true copy of the original, then Samuels Block who are the ones who witnessed my signature Yes it does have a number MD450A

[applecart]

Do we all remember Ben's reliance on this....extract taken from his 'student' manual:

 

Legal Mortgages of Registered titles under the LRA 2002

 

By virtue of SECTION 23(1) of LRA 2002, the legal charge is the only permissible method of creating a legal mortgage of a registered freehold or leasehold estate. SECTION 23(1) contemplates two ways a registered title may be 'charged' so as to create legal mortgage: first is the usual 'charge by deed expressed to be by way of legal mortgage'; and the second is the less common method of simply charging the land with the payment of money.

 

SECTION 87 of LPA 1925, the charge must be made by deed, and it must be expressed to be by way of legal mortgage: it must declare itself to be a 'legal mortgage made by charge'. This section makes it clear that a chargee obtains the same protection powers and remedies as if the mortgage has been created by a long lease of 3000 years in the old way. For both borrowers and lenders, the charge represents a quick, easy, economical and simple way of mortgaging land.

Registration of Legal Mortgages under the LRA 2002

 

Before mortgage can take effect, must be registered as a 'registrable charge' against that title. This will show the mortgagee as the proprietor of the charge and will ensure both that it takes effect as a legal interest and that it amounts to a 'registered disposition'. In the absence of such registration, mortgagee only has an equitable interest and may lose its right to priority over the land in the event that the mortgagor disposes of the legal title by a registered disposition. Come e-conveyancing, registration of mortgages will occur simultaneously. It will also eliminate any lingering issues that remain over the 'registration gap'.

 

 

Here are the Explanatory notes of section 23 to the LRA 2002

 

Owner’s powers

 

55.This section states the unlimited powers of an owner. It makes one change to the current law. Under the existing law, there is a presumption that a registered charge takes effect as a charge by way of legal mortgage, unless there is clear provision to the contrary, or it is made or takes effect as a mortgage by demise or sub-demise. Mortgages by demise or sub-demise are now in practice obsolete, because of the advantages of a charge (that enables freeholds and leaseholds to be made the subject of a single charge rather than separate demises or sub-demises; the grant of a charge of a lease is not thought to amount to a breach of the common-form covenant against subletting without the landlord’s consent; and the form of legal charge is short and simple). Subsection (1)(a) therefore abolishes them, with prospective effect.

 

Anyone spot Ben's obvious 'F'...LAW........?????

 

Apple

[bhall]

Lol your posts do make me laugh Apple

 

A mortgage by demise / sub-demise is not the same as a mortgage by legal charge. As you have posted the law only made one change and that was to abolish mortgages by demise / demise.

 

Mortgages by legal charge were not abolished.

 

;-) Keeping trying at the very least you get 10/10 for effort and imagination.

Edited October 22, 2013 by bhall

[bhall]

Lol Is It Me?

 

You keep saying that I don't answer questions. Is that really the best you can do to try to discredit me or the information I post ?

 

Sadly, you don't get 10/10 for effort.

 

Clearly I have a life and I do try to answer as many questions as I can as my spare time allows.

 

As for what you keep under your hat..

 

Even on the debt avoidance websites, people are saying that this won't work.

 

If this stood any real chance, Claim Management Companies would be jumping all over it and we would be getting texts and phones calls from them about it. Even Claim Management Companies who will put a claim in for anything won't touch this with a barge pole.

Edited October 22, 2013 by bhall

[applecart]

Lol your posts do make me laugh Apple

 

A mortgage by demise / sub-demise is not the same as a mortgage by legal charge. As you have posted the law only made one change and that was to abolish mortgages by demise / demise.

 

Mortgages by legal charge were not abolished.

 

;-) Keeping trying at the very least you get 10/10 for effort and imagination.

 

Yeah....ok Ben......

 

a 'legal charge' Ben...... is NOT the same as a "'mortgage by legal charge".......

 

A mortgage by legal charge "gives the same effect" as a mortgage by demise OR sub-demise........They are 'ABOLISHED'....

 

Apple

[bhall]

The same effect does not mean they are the same thing Apple

 

A charge by legal mortgage has the same effect as a mortgage by demise as it grants the mortgagee the powers as stipulated by the LPA 1925

 

Apple as you know s.205 of the LPA 1925

 

"Legal mortgage means a mortgage by demise or subdemise or a charge by way of legal mortgage"

 

The lra 2002 as you have posted in the explanatory note confirms that only a mortgage by demise or sub demise was abolished. A charge by way of legal mortgage has not been abolished.

 

S.87(4) of the LPA 1925 even states that a legal mortgage created by a charge by deed expressed by way of legal mortgage is not affected by s.23 of the LRA 2002 - (under which owner's powers in relation to a registered estate do not include power to mortgage by demise or sub-demise)

Edited October 22, 2013 by bhall