Deeds high court ruling void what a twist

[alisono]

ALL THE PEOPLE SUCH AS BHALL AND THE REST OF THE POSTERS ON THE SITE THAT HELPED AND OFFERED INFORMATION TO DEEDS BEING VOID THREAD PLEASE SEE

http://self-realisation.com/equity/banksterbusters/summary-judgment-mortgage-deed-declared-void-in-the-high-court/ :smile:

Edited November 24, 2014 by alisono
changed title

[steampowered]

The actual judgment in that case is available here: http://www.bailii.org/ew/cases/EWHC/Ch/2014/2117.html.

 

The summary given in the link you posted is misleading. This was a judgment given in favour of the bank. The final paragraph of the judgment is self-explanatory.

 

The link you posted states as follows: 'The bank’s claim in entirely reliant upon a purported contract for mortgages in the future being valid. However, the document in question, which takes the form of a Facility [Offer & Acceptance] Letter, was never signed by a representative of the bank, rendering it void ab initio under section 2 of the Law of Property (Miscellaneous Provisions) Act 1989'.

 

The actual court judgment states as follows: 'Failure to comply with s 2 the 1989 Act. Mr Waugh repeated the point that had been rejected both by Judge Walton and Lloyd LJ. For the reasons given by Lloyd LJ it is totally without merit. It is, in addition, res judicata.'

 

In this case, the judge decided that the bank was entitled to the full amount claimed. The judge said that the mortgage, which had to be executed as a deed, was not valid because it had not been witnessed - the witness blocks had not been filled in. However, despite this the bank was still awarded the benefit of the mortgage: 'A document, which for some defect of form (but which is otherwise valid) fails to take effect as a legal mortgage will (subject to section 2 of the 1989 Act) be a good equitable mortgage. The basis of this is the court's power specifically to perform a contract to create a legal interest in land.'

 

It is important to be clear about what is meant when we say 'void deeds'. Many different arguments as to why certain deeds are void were advanced in that 50+ page thread. This judgment dismisses many of those arguments - particularly the argument about s2 of the 1989 Act, which was one of the key arguments. The judgment confirms that deeds do need to comply with s1(3) of the 1989 Act in that they need to be witnessed, but I do not think this is an issue in most of the 'void deed' cases (e.g. it doesn't help people who are trying to argue that the fact their mortgage was securitised into an investment vehicle makes it invalid).

[bhall]

ALL THE PEOPLE SUCH AS BHALL AND THE REST OF THE POSTERS ON THE SITE THAT HELPED AND OFFERED INFORMATION TO DEEDS BEING VOID THREAD PLEASE SEE

http://self-realisation.com/equity/banksterbusters/summary-judgment-mortgage-deed-declared-void-in-the-high-court/ :smile:

 

Hello Alisono

 

As you know the deed in the case of BOS v Waugh was not found to be void for any of the reasons discussed in the "void deed" thread. The main reason discussed in that thread was if a deed was void if it had not been signed by the lender. As we now know, following the Property Chamber decision a mortgage deed is not void if it has not been signed by the lender.

 

The reason the deed was found to be void in BOS v Waugh was simple -

 

http://www.bailii.org/ew/cases/EWHC/Ch/2014/2117.html

 

63. It is not in dispute that the Trustees were individuals and that the Charge was not attested in accordance with the section. The lack of attestation appears on the face of the charge itself.

 

64. It follows that the Charge was not validly executed as a Deed. It also follows that it was void for the purpose of conveying or creating a legal estate.

 

As said, nothing to do with any of the fanciful ideas posted in the other thread that the Property Chamber concluded were "wholly without merit and which rests on a misunderstanding of the formalities necessary to create a valid charge"

 

However, going back to the case of Bank of Scotland v Waugh, a chapter of that story has been overlooked in the link you have posted

 

http://www.burges-salmon.com/practices/disputes_and_litigation/publications/property_litigation_caselaw_update.pdf

 

Incomplete execution of security

 

A development loan was provided to a trust and secured by a charge. The charge was signed by the individual trustees but not witnessed. Section 52 of the Law of Property Act 1925 requires charges to be completed as a deed which, under section 1(3) of the Law of Property (Miscellaneous Provisions), required that the trustees signatures were witnessed. Without the witness attestations, the document was not properly signed as a deed and therefore failed to create a legal charge.

 

The document did however create an equitable charge because it was in writing, contained all of the terms and was signed by all the parties (in compliance with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989). In a subsequent action (No. 2), the bank obtained an order to perfect the equitable charge into a legal charge.

 

However, this case is more notable for the arguments on estoppel. The bank argued that the trustees were estopped from denying the validity of the charge. This argument failed because there was no witness attestation at all, whereas the authorities on estoppel require some form of witness attestation, albeit incorrect - shah v Shah [2001] EWCA Civ 527 distinguished from Briggs v Gleeds [2014] EWHC 1178 (Ch).

 

Bank of Scotland Plc v Waugh [2014] EWHC 2117 (Ch) and No. 2 [2014] EWHC 2835 (Ch)

[bhall]

Bank of Scotland Plc v Waugh No. 2 [2014] EWHC 2835 (Ch)

 

http://www.legalmortgage.co.uk/#/aug-14/4586333349

 

Case summary

 

Despite having handed down judgment, the judge acceded to an application by a litigant in person to reconsider the contents, but then dismissed the application. The court went on to grant relief on the bank’s application.

 

Facts

 

In Bank of Scotland Plc v Waugh [2014] EWHC 2117 (Ch) (reported in the July 2014 update) it was held that a registered charge which did not contain an attestation clause could not take effect as a legal charge by estoppel and would be rectified, but it could still take effect as an equitable charge. On handing down judgment , W asked the judge to effectively reconsider his judgment, and BoS applied for an order requiring the bank’s charge to be perfected under the mortgage conditions by the execution of a legal charge.

 

Held

 

Since W’s application was before the judge before he had handed down judgment, it was felt appropriate to consider the points he raised. The main point was that the legal charge was not enforceable as a contract to create a legal charge or as an equitable mortgage however the legal charge had been signed by both parties and complied with s 2 Law of Property (Miscellaneous Provisions) Act 1989. W also challenged the account balance but the mortgage conditions provided that in the absence of manifest error any determination by the bank was conclusive and binding. There was no realistic prospect of challenge. Next W wanted to rely on a letter which suggested that [W] may not be personally liable for the debt, but this was insufficient to give rise to en estoppel. Accordingly the judge was unwilling to reconsider his judgment.

 

On the bank’s application, the court made an order under s 39(1) Senior Courts Act 1981 that in default of execution of the charge by W, it shall be executed by a District Judge of the High Court, Chancery Division.

[applecart]

I've just seen this thread. I kept away from referencing anything to do with the FTT decision on the CaG out of respect for the CaG's decision to close the threads that related to it.

 

However, it would seem the discussion continues - albeit under the guise of a case that recently reared its head (the comments herein do not reflect the end result by the way - for an update see here: http://self-realisation.com/equity/banksterbusters/bos-drops-legal-objection-to-cancellation-of-void-mortgage/)

 

Conscious as I am that those on this thread led us to believe that Banks can rely on the fact that they do not sign the deed on the premise that it is a UNILATERAL DEED - may be interested to comment on this recent case:

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/28.html

 

Comments appreciated as always.

 

 

Apple

[bhall]

I've just seen this thread. I kept away from referencing anything to do with the FTT decision on the CaG out of respect for the CaG's decision to close the threads that related to it.

 

Personally, I think you should have kept away out of respect for people such as alisono, is it me?, UNRAM and co that lost financially as a result of your previous posts, rather than out of respect to CAG. However, you do not appear to be concerned about them.

 

Isn't it odd that the poster on the self realisation site has made no reference to the (no.2) hearing as detailed in post four of this thread and the details that they have posted on the self realisation site bear such little resemblance to the official record as posted above of the no.1 case.

 

Caggers can read about both cases via the below links

 

Bank of Scotland Plc v Waugh & Ors [2014] EWHC 2117 (Ch) (21 July 2014)

 

Bank of Scotland Plc v Waugh (No. 2) [2014] EWHC 2835 (Ch)

 

Caggers can read into that what they will

 

I think I have commented enough on this subject in the below thread (and feel little need to comment further, as my view is the same as the outcome of the hearing at the property chamber)

 

Repossession questioned by deeds not being signed

 

So I will just leave it for the Judge (being the same person who you previously championed in your posts about Garguilo) to comment

 

Sinclair v Accord Mortgages Ltd (Rectification or Setting Aside of Documents : Grounds for setting aside) [2014] EWLandRA 2013_0031 (21 February 2014)

 

2.The grounds relied on by Mr Sinclair and Mr and Mrs Overson are substantially the same. The Tribunal has received a number of similar applications by mortgagors, and the same, or substantially the same, arguments have been run in the County Court in other cases, some of which are referred to below. At the heart of these and other applications is the primary allegation that the charges are invalid as the lenders did not execute the relevant deeds. This argument originated in a document posted on the internet. It is, however, an argument wholly without merit, and which rests on a misunderstanding of the formalities necessary to create a valid charge as security for a loan.

 

34. It is important to emphasise that the execution of a deed is the method by which a person transfers or creates a legal estate or interest in his property. It is, by its very nature, a unilateral act. There is no requirement for the mortgagee (or, for example, for the transferee in the event of a sale of land) to sign or execute the deed. The deed is itself the actual disposition. It is to be distinguished from a contract to sell or grant a charge, which, by definition, requires the agreement of two or more parties.

 

38. In the present cases, the charges were properly executed as deeds by the Applicants. There is no merit whatsoever in any of the points taken by or on behalf of the Applicants to seek to impugn the validity of the two charges.

 

Out of respect to the caggers that listened to you last time, don't you think you should just let this one drop.

 

Don't you feel that you have done enough damage already ? I know the outcome of the incorrect information you previously posted had little impact upon you personally, with the exception of bruising your ego, it did however have serious financial implications for the caggers that took you seriously

 

I know I do

 

No doubt you will continue to post on this topic clutching at each and every straw, never mind how strenuous the link in an attempt to support your flawed, disproved and fanciful ideas. Thats your prerogative as it is mine to choose not to engage in pointless debate with someone that is unable to accept that they were wrong. The sheer fact so few signed your petition should serve as an indication of how little faith there is in your claims.

 

Ben

[applecart]

Ben - I know you are passionate about what went before - I'd hoped that perhaps you'd be good enough to share more of your passion and provide comments on the case I posted to do with 'Unilateral contracts'.

 

Particularly, I had hoped you might comment where the judge said:

 

[31] -I would therefore dismiss the appeal. It is not, in these circumstances, necessary to deal with the Bank's alternative case based on its respondent's notice. I should, however, make it clear that I am far from persuaded that the Bank would be entitled to succeed regardless of the effectiveness of its unilateral notice.

 

Link again: http://www.bailii.org/ew/cases/EWCA/Civ/2014/28.html

 

However, I'm more than happy to accept you exercising your perogative not to comment on the Unilateral Contracts case at this time.

 

Perhaps I can invite you to comment on this case instead:

 

http://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents/2013/%5B2013%5D%20NICh%2014/j_j_DEE8994Final.htm

 

The Judge in this case considered Paragan v Pender - his final comments were:

 

[9] In all those circumstances I conclude therefore that the appeal should succeed and I reverse the order of the Learned Master, making it clear that this is no reflection on him, and strike out the order for possession.

 

This case dealt with a Bank's representative (Santander) misrepresenting the facts in a court of law - Of course, I will respect your decision if you decide not to comment on the case.

 

Apple

[Crapstone]

Why did I even look at this?.. It's not your home or money at stake. Go away Apple. You did more than enough damage before. Your way is not the right way. But what would you care? Contracts....You are trying to exact a defining glory out of nothing.

[applecart]

Not at all Crapstone - Not at all!

 

Do you care to comment on the cases posted?

 

Perhaps you followed my alleged 'fanciful' advice - these cases appear to be successful, where I am alleged to have failed.

 

Comment on the cases - not what went before - that's the proposition.

 

Do you find issue with these new cases Crapstone? - Where are they likely to fail consumers? That's what folk want to know - can you assist them??????

 

 

 

Apple

[Crapstone]

Sorry Apple. I have nothing to say to you that hasn't already been said by Ben - or what has been said by Steampowered in relation to the OP. You are just not worth adding fuel to and are unworthy of any response.

[steampowered]

Those cases are all well and good, but I can't see that either of them have anything to do with whether or not the mortgage lender signed the deed.

 

In the BoS case, the consumer's appeal was rejected.

 

In the Santander case, an order for possession was struck out because Santander's representative had told the court things which were untrue.

[citizenB]

applecart, I have removed the link to the epetition from your signature, which closed on 12 November with just 38 signatures.

 

http://epetitions.direct.gov.uk/petitions/56915

[applecart]

Thanks for your comments SP

 

Crapstone - no problem

 

CitizenB - Thank you.

 

SP

 

In relation to the BOS v Waugh case - A poster on another forum was of the opinion that:

 

"It is like the guy that wrote the about the waugh case on the self realisation site hasn't read the actual case

http://www.bailii.org/ew/cases/EWHC/Ch/2014/2117.html"

 

I've commented there to say:

 

Unlike 'shah v shah' - in BOS v Waugh the deed had not been witnessed at all

 

In 'shah' the deed had been witnessed - their claim was that the witness was not present at the time the deed was executed -

 

In BOS v Waugh - The Bank tried to rely on its - 'Terms of the Charge' at clause 15 and POA - distinctively different scenarios I think all can agree?

 

The terms relied on by BOS were:

 

'Terms of the charge'

 

[27] In the light of the Bank's fall back arguments it is necessary to set out some of the terms of the charge:

 

[28] Under clause 2 the Trustees charged Asquorn House as security for the Secured Liabilities.

 

[29] By clause 3 the charge incorporated the Standard Conditions. Those conditions define the secured liabilities as "all sums of money owed and all liabilities or obligations to be carried out by you as at any time and from time to time …"

 

[30] Condition s 14 and 15 provide

 

You shall take whatever steps and execute whatever documents we may require for:

 

14.1. The purpose of perfecting and giving effect to the Charge

 

15.1. You by way of security, irrevocably appoint us and any Receiver and each one severally to be your attorney (with full power to delegate) for you and in your name and as our act and deed:

 

15.1.1. To execute as a deed and perfect all deeds … which you ought to execute under the obligations and provisions contained in these Conditions …

 

The Bank accepted that because the Waughs signature had not been witnessed - the charge was not a Deed - Reliance upon the POA was of no use.

 

[86] - "In his oral submissions Mr Wilson suggested that the Bank could rely on clause 15 of the Standard Conditions to enable it to execute any necessary documents pursuant to the Power of Attorney created by that clause. Following the hearing he has written to the court drawing my attention to section 1(1) of the Power of Attorney Act 1971 and a passage from paragraph 15 in Halsbury Laws Vol 1 5th Ed on Agency to the effect that a power of attorney must be created by deed and that if power is to be given to an agent to execute a deed that power must be given by a deed. Thus he now accepts that the Bank cannot rely on clause 15. He submits that instead the Court should order the Trustees to execute any documents necessary for perfecting the Legal Charge. In the event that the Trustees fail to execute them the Court has inherent power to direct that an officer of the Court execute them on behalf of the Trustees."

 

POA 1971 s.1:

 

1 Execution of powers of attorney.

 

(1)An instrument creating a power of attorney shall be [F1executed as a deed by] the donor of the power.

 

The signatures of the Waugh's were not witnessed - the document had not been 'executed as a deed'

 

S 52 of the Law of Property Act 1925

 

[59] Under this section all conveyances of land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed.

 

Question begs, if the document was accepted by the Bank as NOT being a 'deed' for POA purposes - how or why on earth did they believe it would miraculously become a 'Deed' for s.52 purposes - even though the Deed had IN FACT been signed by themselves and the Waugh's btw...

 

As we ALL know - the Deed - had been signed by the Waugh's and the Bank in this case - had the Waugh's signatures been duly attested - then it would have been spot on - not only for s.1 of the POA 1971 but also for s. 52 of the LPA 1925 purposes.

 

The LPA 1925 s.53 - which Banks have a tendency to rely on in the lower courts - (given the findings in the BOS v Waugh case) I'm afraid - remain an issue.

 

IT WAS BY NOV 14 - the Waugh's say:

 

"Twenty months after our application to have a void and illegal mortgage canceled and removed from the Charges Register by the Land Registrar at Durham Land Registry, Bank of Scotland has withdrawn its entirely bogus legal objection to its removal and requested that the Property Chamber [which replaced the Land Registry adjudicating service and has been sitting on the vigourously disputed application since the first day of July 2013], inform the Land Registry that the existing entries in the register pertaining to the bank’s purported legal mortgage over a commercial property [as well as the appointment of LPA Receivers], should be canceled as soon as possible."

 

I don't see how HMLR could do anything other than remove the charge - the underlying deed was defective. The Waugh's were not estopped. a registered charge does not guarantee its validity under the LRA s.51 I'm afraid.

 

What about those 'unilateral notices' that end up registered against folks titles? - what about LPMPA 1989 s.2 - given that s.40 LPA 1925 was superseded by this section.

 

Here's a case that looked into Unilateral notices - it's worth a read.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/28.html

 

So, I can't see any reason why the Waugh's would be untruthful or look to mislead anyone as to the outcome of their case really. It all seems to stack up.

 

 

Apple

 

link to the Waugh's self realisation thread: http://self-realisation.com/equity/banksterbusters/bos-drops-legal-objection-to-cancellation-of-void-mortgage/

[steampowered]

Oh yes, I agree with you that the signature of the person signing a deed (i.e. the borrower) needs to be witnessed. However there is nothing in there to suggest that the deed must be signed by the lender.

 

The case which is discussed on the self-realisation thread you linked to seems to be talking about the bailii case also mentioned in your post. In that case, the borrower's appeal against a decision to grand the bank an order for possession seems to have been dismissed (although I haven't read through the whole judgment in detail).

[Crapstone]

The link you give? Hmm... Cosmos and fairy dust? Would I trust anything said there? NO..... A Big fat NO. And you say that you trust them on that website? I think you need some self realisation of your own and not be taken in so easily.

[applecart]

Those cases are all well and good, but I can't see that either of them have anything to do with whether or not the mortgage lender signed the deed.

 

SP

 

From the BOS case:

 

6 Claim for an equitable charge

 

Points of Law

 

It is again necessary to set out a number of points before turning to the facts of the case.

 

Equitable Mortgage

 

A document, which for some defect of form (but which is otherwise valid) fails to take effect as a legal mortgage will (subject to section 2 of the 1989 Act) be a good equitable mortgage. The basis of this is the court's power specifically to perform a contract to create a legal interest in land. See Fisher & Lightwood Law of Mortgage 13th Ed at par 3.6 and the cases cited at footnotes 1 and 2.

 

Section 2 of the 1989 Act

 

This section provides:

 

(1) A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contract are exchanged, in each.

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

 

In this case the Charge was signed by both the Trustees and on behalf of the Bank. It expressly incorporated the Standard Terms.

 

Discussion

 

[85] It seems to me that the above principles apply directly to the Legal Charge. It was not executed as a Deed and thus did not take effect as a legal charge. However it was signed by the parties and did contain all the terms that had been agreed and thus took effect as an equitable mortgage.

 

 

link: http://www.bailii.org/ew/cases/EWHC/Ch/2014/2117.html

 

 

 

Apple

[steampowered]

Applecart, the reason why the deed was not valid in that case was because the borrower's signatures had not been made in the presence of a witness who attests the signature (see paragraph 63). This is one of the requirements for a valid/deed charge. It doesn't have anything to do with whether or not the bank was required to sign.

 

As per the section you posted, even though the deed was void, the bank still ended up in the same place since the court allowed it an equitable charge instead.

[applecart]

SP

 

Thanks for your 'comments' - much appreciated.

 

Apple