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UNRAM

What is the legal status of a mortgage deed if the mortgage agreement is deemed void?

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To answer your questions:

 

1. no further advance.(01.05.2007)

 

2. Title register entry: The proprietor of the Charge dated 20 March 2007 referred to above is under an obligation to make further advances. These advances will have priority to the extent afforded by section 49(3) Land Registration Act 2002.

I don't want to lose sight of the fact that the deed you kindly sent me is a bilateral document. Why would Northern Rock have omitted this?

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To answer your questions:

 

1. no further advance.(01.05.2007)

 

2. Title register entry: The proprietor of the Charge dated 20 March 2007 referred to above is under an obligation to make further advances. These advances will have priority to the extent afforded by section 49(3) Land Registration Act 2002.

I don't want to lose sight of the fact that the deed you kindly sent me is a bilateral document. Why would Northern Rock have omitted this?

 

Just so there is no misunderstanding by readers, I have not sent UNRAM anything, I have posted a deed on the forum.

 

If you have not had a further advance, this might be a mute point.


 

Yes Mark, I am Bones

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The problem you have is that the mortgage deed has been checked and approved by the Land Registry

 

Practice Guide 30 (7) states what a mortgage deed must contain to be approved by HMLR

 

All that has occurred is that a notice has been entered onto your Title Deeds that the lender is obligated to provide a further advance, If you were to convince the Property Chamber this is a mistake, the outcome would be the removal of this notice from your title deeds.

 

I doubt very much that it would render the deed void.

 

As you don't have a further advance, it isn't all that important.


 

Yes Mark, I am Bones

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The other issue here, and the main topic of this thread, relates to the unsigned mortgage offer. This is indicated by case law to be a "contract for the future disposition". The more I consider it the more I am convinced that Northern Rock should have signed it for it to be compliant with LPMPA1989 section 2. My question is: what affect does this have on the rest of the conveyance if there are no contractual obligations to fulfill. i.e. no loan amount agreed under contract, no repayments agreed under contract, no deed terms and conditions (as sub-terms) agreed under contract. I hope my question is clear: how can a judge enforce an amount for payment if there are no contractual duties?

 

LPMPA1989 (2)(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.

 

In the event that there is a unilateral deed but no mortgage contract (i.e. only an agreement not meeting the requirements of law but clearly intended to act as a contractual document) creating a binding duty to repay the loan, how can anyone make a decision as to how much is to be repaid. I think any complete answer would need to take into account the the repeal of LPA1925 section 40...

Edited by UNRAM

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The problem you have is that the mortgage deed has been checked and approved by the Land Registry

Practice Guide 30 (7) states what a mortgage deed must contain to be approved by HMLR. All that has occurred is that a notice has been entered onto your Title Deeds that the lender is obligated to provide a further advance, If you were to convince the Property Chamber this is a mistake, the outcome would be the removal of this notice from your title deeds. I doubt very much that it would render the deed void. As you don't have a further advance, it isn't all that important.

Thanks for taking the time to look into this. One last point however is that the lender hasn't assented to it's obligation. As stated Northern Rock didn't complete a CH2. In that instance how could they remove something that is essentially a promise. Wouldn't removal be to the borrowers detriment? After all they thought they had been promised an advance...

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The problem you have is that the mortgage deed has been checked and approved by the Land Registry

 

Practice Guide 30 (7) states what a mortgage deed must contain to be approved by HMLR

 

All that has occurred is that a notice has been entered onto your Title Deeds that the lender is obligated to provide a further advance, If you were to convince the Property Chamber this is a mistake, the outcome would be the removal of this notice from your title deeds.

 

I doubt very much that it would render the deed void.

 

As you don't have a further advance, it isn't all that important.

 

I also feel that estoppel would prevent the grantor from claiming that they did not grant the charge as security for a loan.

 

Something that has been mentioned recently about a deed is equity. If it does not operate at law, it can still operate in equity.

 

That should not overlooked or dismissed as easily or as quickly as it has been.


 

Yes Mark, I am Bones

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We are in exactly this position with NRAM.

 

We unsuccessfully tried to fend off a possession order last week using s.2 against the fact the mortgage offer was not signed at all, by anyone.

 

In our case, unusally, we had lost our original offer and asked NRAM to send us a copy. The copy they sent was different from the original. We claimed, as it was not signed, how could they prove it was the same document we had agreed to when we signed the deed? They had just produced (and sworn to) a document in court which we knew was fraudulent.

 

The judge seemed interested in this and allowed the "money claim" part to go to trial but allowed the possession order. He refused permission to appeal on the grounds of s.2 and ordered us to amend our defence to the money claim by omitting any reference to the s.2 argument.

 

He stated in the judgement that s2 does not apply to legal mortgages, only equitable.

 

While this argument has been successful to date with lenders because legal mortgages are designed to create an instant disposition with incorporated conditions and not a disposition in the future, it does not take into account the registration gap argument. ( Helden v Strathmore may yet prove to be per incurium).

 

Our concern at the moment however is to deal with what the judge has done here. He appears to have allowed the idea that the offer is not the genuine one a reasonable chance of success. (In actual fact he said it had every liklihood of succeeding but NRAM's barrister made him retract that as being potentially prejudicial).

 

Yet he has allowed the repossession order, brought on the basis of alleged arrears as defined by the very document he is allowing us to challenge at trial.

 

Our situation seems to have focussed the questions in this thread. How can he determine a possession for arrears and yet allow a challenge to those arrears to go ahead.

 

How can he say, as he did, well you obviously owe something so I'll allow the possession order and you can sort out how much later on at trial?

 

We are going to seek leave to appeal but would welcome any help on how to frame this. Time is tight.

Edited by honeybee13
Spacing.

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This is very interesting. The offer document that you talk about, which you state may be fraudulent. Are you saying that you lost the original offer document and then they have produced a copy of a document which is now signed by you? And your lender? Or both?

 

Like you say, how can the judge allow a possession order to go ahead on the basis of terms and conditions of the very document you are disputing?

 

When did you take the mortgage out?

How many months arrears?

When did Nram begin these legal repossession proceedings?

Have you considered challenging the actual mortgage deed?

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Hi Timetogoram. Sorry to have taken so long to get back to you. Our lender (NR) has secured a possession order with a signed (by us, not them) deed and nothing else. Neither the mortgage offer, nor the conditions nor any other document in existence has been signed either by us or them. We took the mortgage out in 2007. We were sent an offer of loan and having agreed the terms within were told just to sign the deed.

At the first possession hearing they turned up with the deed and 2 sets of conditions which we had never seen before but not the offer with the terms in it. The DJ set a PTR to allowed us time to file a proper response, which we did, explaining how they had not produced any document signed by us which stated the terms of the mortgage. Seeing as how they were claiming possession based on alleged arrears we thought it would be necessary for them to at least produce a document showing what the arrears actually were.

At the PTR they then turned up with an offer of loan (unsigned by anyone) containing terms different from those in the original (the missing, true offer). We protested and the DJ (a different one) believed us enough to allow that part to go to trial. But he then gave them the possession order based on the document he had just allowed to be challenged at a future trial.

We have since applied to void the order because it was prejudicial, being based on the outcome of a future trial. That was refused. We appealed to the CJ using s.2, the registration gap, Helden (working for us in this case) and he has dismissed our appeal as wholly without merit. Again he said "section 2 does not apply to legal mortgages".

We now have one final shot at it at an oral hearing in 2 weeks and then all doors are closed. We are putting it all in an application to the Property Chamber in the hopes they can do something but these lower court judges are something else. They will not listen to s2 however logically you apply it (and I totally agree with you that logically s2 has to apply to the t's and c's at the very least). I can logically make it apply to the deed too using the registration gap but fat chance with that in court.

The terms in this bogus offer they have sworn into evidence don't even match the payments we were making for over 6 years! They still got the possession order and the appeal was thrown out.

Such incredible, nonsensical and unintelligent abuse of judicial power has left us reeling. There is nothing left we can do.

Except lend our experience to help anyone else in the same situation, which we are happy to do if it can be of any use.

Jo

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Hi Timetogoram. Sorry to have taken so long to get back to you. Our lender (NR) has secured a possession order with a signed (by us, not them) deed and nothing else. Neither the mortgage offer, nor the conditions nor any other document in existence has been signed either by us or them. We took the mortgage out in 2007. We were sent an offer of loan and having agreed the terms within were told just to sign the deed.

At the first possession hearing they turned up with the deed and 2 sets of conditions which we had never seen before but not the offer with the terms in it. The DJ set a PTR to allowed us time to file a proper response, which we did, explaining how they had not produced any document signed by us which stated the terms of the mortgage. Seeing as how they were claiming possession based on alleged arrears we thought it would be necessary for them to at least produce a document showing what the arrears actually were.

At the PTR they then turned up with an offer of loan (unsigned by anyone) containing terms different from those in the original (the missing, true offer). We protested and the DJ (a different one) believed us enough to allow that part to go to trial. But he then gave them the possession order based on the document he had just allowed to be challenged at a future trial.

We have since applied to void the order because it was prejudicial, being based on the outcome of a future trial. That was refused. We appealed to the CJ using s.2, the registration gap, Helden (working for us in this case) and he has dismissed our appeal as wholly without merit. Again he said "section 2 does not apply to legal mortgages".

We now have one final shot at it at an oral hearing in 2 weeks and then all doors are closed. We are putting it all in an application to the Property Chamber in the hopes they can do something but these lower court judges are something else. They will not listen to s2 however logically you apply it (and I totally agree with you that logically s2 has to apply to the t's and c's at the very least). I can logically make it apply to the deed too using the registration gap but fat chance with that in court.

The terms in this bogus offer they have sworn into evidence don't even match the payments we were making for over 6 years! They still got the possession order and the appeal was thrown out.

Such incredible, nonsensical and unintelligent abuse of judicial power has left us reeling. There is nothing left we can do.

Except lend our experience to help anyone else in the same situation, which we are happy to do if it can be of any use.

Jo

 

Hi mate did you get your application into the property chamber? Sounds like a real battle on your hands.

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I'm not sure what your question is, but in the absence of the OP updating his thread maybe the judgment in this link will answer it.http://www.consumeractiongroup.co.uk/forum/showthread.php?391318-Repossession-questioned-by-deeds-not-being-signed&p=4482843&viewfull=1#post4482843


 

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The answer is that the mortgage would be perfectly valid.

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Read Caro's post above mine.

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Hi, you've had a response on the previous page (posts 37 & 38)


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never mind

 

OK

 

Thread closed


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style="text-align:center;"> Please note that this topic has not had any new posts for the last 1947 days.

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