Mortgage Securitisation Discussion Thread

[honeybee13]

Hello there.

 

The thread is at the top of the forum now, because it has new posts on it. If nobody posts, then it will gradually sink down.

 

My best, HB

[applecart]

Thank you HB : )

 

Apple

[applecart]

This was of interest in relation to Deeds that have not been executed by a lender:

 

http://freetheplanet.net/articles/290/void-legal-charge-removed-from-the-register

 

It basically speaks of the right to the Borrower to make an application to HMLR to have the Lenders charge removed... on the understanding that it is within the provisions of LRA 2002, s.131 for the Adjudicator to find that it is the Borrower who is considered to be in 'possession' of the land and as such has the right to make the application...

 

Applecart

[applecart]

AMENDMENT: post 233 should say the LPA 1925 s.74A (not 74B)...

 

Apple

[applecart]

Funnily enough no poster has provided from ‘Pender’ the following statements made by the Judge in 2003:

 

104 “The issue arises out of administration agreements whereby the Claimant sold some of the mortgage debt due to it in order to securitise the loans. The Defendants have been provided with copies of the administration arrangements, which regulate the operation of the mortgages. The Claimant has refused to provide details of the securitisation agreements themselves. There is an application for disclosure in the event that the Defendants are successful in their appeal. “

 

105 “The securitisation arrangements will of course set out the financial package entered into by the Claimant and the other parties. That does not feature in the administration agreement and that must be born in mind.” [my emphasis]

 

In Pender, Paragon ‘refused’ to provide the details of the securitisation agreements.

 

Unlike Pender, sight of the MSA, the POA, Notice of Admission, Companies House registrations are now more or less now available.

 

Borrowers should have an idea of how it is they can go about accessing these documents - the importance of which is that they evidence that a sale took place and that constructive delivery of the rights to the title held by the Originating Lender can be construed as separate from the 'conclusive' nature provided by s.58 ( bare trust - TLATA)

 

This does not in anyway suggest that Borrowers are not subject to the possibility of the SPV joining the proceedings and seek possession in their own right I suspect - I'm looking into this at the moment to see if their is any reliable balance that would present a fair outcome for both the SPV and the Borrower.

 

Apple

 

I've looked into this further in regard to the SPV 'joining' proceedings....and factored in the finding that securitisaton involves the originator securing the mortgage at HMLR by Deed and the subsequent registration that relates to the underlying deed needing to remain in 'escrow' - (I say 'escrow' - the law says 'void' thus unenforcable)...

 

If the underlying Deed is void-and the agreement between the Lender and the SPV is said to be 'equitable' (due to the agreement between them being 'uncompleted') - I fail to see how it is possible that the SPV could join proceedings with a view to securing any right to possession......Why? because...

 

If the Deed is Void - the registered charge should be subject to LRA s.58 (2) NOT LRA s.58 (1) ....as a registration made ' in pursuance of a registrable disposition'

 

Conclusiveness

 

(1)If, on the entry of a person in the register as the proprietor of a legal estate, the legal estate would not otherwise be vested in him, it shall be deemed to be vested in him as a result of the registration. (2)Subsection (1) does not apply where the entry is made in pursuance of a registrable disposition in relation to which some other registration requirement remains to be met.

 

 

...and because of:

 

LPA 1925 s1 (7)

 

Every power of appointment over, or power to convey or charge land or any interest therein, whether created by a statute or other instrument or implied by law, and whether created before or after the commencement of this Act (not being a power vested in a legal mortgagee or an estate owner in right of his estate and exercisable by him or by another person in his name and on his behalf), operates only in equity.

 

How do we know the registration is to be considered as one in pursuance of a registrable disposition so that S.58 (1) does not apply?

 

Well....it works like this.....

 

LPA 1925 s.85 (1) "A mortgage of an estate in fee simple shall only be capable of being effected at law either by a demise for a term of years absolute, subject to a provision for cesser on redemption, or by a charge by deed expressed to be by way of legal mortgage: Provided that a first mortgagee shall have the same right to the possession of documents as if his security included the fee simple."

This is the important bit ... the legislator says.... the only way of creating an interest of a registered estate that is 'capable' of being effected in law is ....."By a Charge...by Deed...Expressed to be by way of Legal Mortgage..'

 

The legislator guides at LPA 1925 s.52(1) that:

"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."

 

In breaking this legislation down for better interpretation- it confirms: .. 'all conveyances of land..or interest therein....are

VOID.

. for the purpose of conveying....or...creating...a LEGAL Estate...UNLESS...made by....DEED'

 

So, once the Borrower has signed the Deed, it shows an intent on his part to 'transfer' an interest in the land to the lender to secure the mortgage.

 

The question begs, how is it possible that HMLR will register a deed that does not have the lenders signature on it? This is because...on the back of the Borrowers signature HMLR recognises, if you like, that the Lender is 'entitled' to do so:

 

LRR 2003 Rule 18 provides:

 

" If, before an application has been completed, the whole of the applicant’s interest is transferred by operation of law, the application may be continued by the person entitled to that interest in consequence of that transfer".

 

LRA 2002 s.24 (b) Right to exercise owner’s powers

 

A person is entitled to exercise owner’s powers in relation to a registered estate or charge if he is—

(a)the registered proprietor, or (b) entitled to be registered as the proprietor.

 

A 'registrable disposition' is a 'transfer' - no 'transfer' takes place if the Deed is not executed by both the Borrower and the Lender...therefore the Deed would not be a disposition to which the LRA 2002 s.27 (3) (a) relates to:

 

"In the case of a registered charge, the following are the dispositions which are required to be completed by registration—

(a)a transfer, and

(b)the grant of a sub-charge."

 

So, there you have it.... in instances where the Lender has not created an interest in a Borrowers land/home/estate by means of a valid deed - HMLR within the 'rules' registers the purported interest of the lender...Regrettably... it is not obvious by simply looking at a title register to immediately notice or know that the underlying deed is void...on the register all looks perfectly legal and above board... It is not unless you dig deep do you begin to see whether the registered interest is Legally enforceable or not......if it is not...then, the SPV has no business 'joining' any proceedings for a claim to possession.

 

Applecart

[applecart]

Further to my last post...

 

Lets say, the deed is valid, but the Borrower has proof of the sale....How would this impact on the SPV's right to join the proceedings for possession?

 

Well, it would work like this...

 

The LP(MP)Act 1994 would apply to the original lenders interests in the Legal Charge against the Borrowers estate to find that the Lender has no cause of action - so, he cannot legally bring the proceedings against the borrower for possession...

 

The SPV's interest is only equitable - if he tries to gain possession in his own name - this can be rebuffed by showing a copy of the deeds -a) to show that the SPV's name is not on the deeds, b) to show that the effective date of the deed between the borrower and the original lender is different from the date of agreement between the SPV and the lender LRA s.67... and showing a copy of the title register... a) to show that the SPV's name is not on the register held at HMLR

 

If he comes in the name of the Lender (which they invariably do) then this can be rebuffed by a) LP(MP)Act 1994, to show no cause of action after the sale, b) only an equitable right exists by virtue of LPA 1925 s.1 (7) because it is onlhy on reliance of statute at LRA s.58 that the lender seeks to secure a legal right not because the 1994 Act impact is to remove the cause of action after the sale - the law will not confer a legal right where non exists due to the actions of the perpretator - so LPA s.1(7) will impact on LRA s.58

 

So, again... whether the deed is valid or not - if the lender sells his interests with 'full title guarantee' (which they invariably do) there is no way they or the SPV can bring proceedings against a borrower in right to possession : )

 

 

Applecart

[applecart]

I have no facility to correct typographical errors or changes to meaning of what I am trying to say - can the site team look into this for me please?

 

Apple

 

 

In the meantime... where I have said:

 

If he comes in the name of the Lender (which they invariably do) then this can be rebuffed by a) LP(MP)Act 1994, to show no cause of action after the sale, b) only an equitable right exists by virtue of LPA 1925 s.1 (7) because it is onlhy on reliance of statute at LRA s.58 that the lender seeks to secure a legal right not because the 1994 Act impact is to remove the cause of action after the sale - the law will not confer a legal right where non exists due to the actions of the perpretator - so LPA s.1(7) will impact on LRA s.58

 

Please read as:

 

If the SPV brings proceedings in the name of the Lender (which they invariably do) then this can be rebuffed by a) LP(MP)Act 1994, to show no cause of action after the sale, b) LPA 1925 s.1 (7) to show that only an equitable right exists because it is only due to reliance of the conclusive effect of statute at LRA s.58 that the lender seeks to secure a legal right not because of the effect of the 1994 Act having removed the cause of action after the sale - the law will not confer a legal right where non exists due to the actions of the perpetrator - so LPA s.1(7) will impact on LRA s.58

 

Thanks for your patience : )

 

Apple

[applecart]

I am bemused that anyone would care what is fair or unfair to the likes of REFERRED MORTGAGES LIMITED, SOUTHERN PACIFIC MORTGAGE LIMITED, EUROSAIL-UK 2007-6NC PLC and the other Eurosail's, given their track record and dire reputation on CAG and how they reportedly treat their borrowers.

 

I am sure SPML, SPPL and Eurosail are grateful for your concerns about what is fair to them.

 

To refuse to post the Mortgage Sale Agreement because it would be unfair to them and only post certain edited extracts would appear to show the strength of your argument in a very bad light and made me wonder what could be in this Mortgage Sale Agreement that you might not want people to read themselves.

 

Your real reasons not to post the Mortgage Sale Agreement became very clear, once I read it.

 

I'm happy to confirm that the documents posted by Nick Nick work to help consumers prove that SPML, SPPL, PREFERRED and Eurosail engaged in an outright sale of borrowers mortgages and it makes sense that any borrower who is with any of these lenders - i.e where Accenden is servicing the administration of the loan...should get onto HMLR to get a copy of the Deed : http://www.landregistry.gov.uk/_media/downloads/forms/OC2.pdf .... there's no need to let them know you are doing this by the way....

 

For further assurance, I have a copy of the 'appendix' that lists every single mortgage account number party to the particular pool of mortgages that were party to the sale of which Nick Nick refers, if any one would like a copy...just ask : )

 

Applecart

[Junidb]

Applcart,

 

I do not know how to send pm on here, but I am despirate to talk to you before I write on here as I now know that my bank are monitoring this site. Could you just send me a pm so that I could reply?

[applecart]

Hi Junidb

 

There is no stopping Banks etc keeping tabs on the forum....it helps them know what we know, ...we are discussing on here what they have always known....the balance is becoming more equal as we move forward.

 

So long as you do your best to keep your posts 'general' rather than personal.....there is no advantage to any bank in viewing these threads over and above the knowledge and fact that they have been found out and it is only a matter of time before Borrowers in their droves report them to the relevant Authorities.....

 

Apple : )

[applecart]

The validity of a Deed is due to it being 'DELIVERED' - there is a further misconception that Borrowers need to be aware of - which is that because the Borrower has signed a Deed with the words 'delivered as a Deed' on its face, that this would constitute 'delivery' - this is simply NOT TRUE......

 

Below is detail from 'The Regulatory Reform (Execution of Deeds and Documents) Order 2005' that all Borrowers also need to familiarise themselves with:

 

http://www.legislation.gov.uk/uksi/2005/1906/article/1/made

 

'EXPLANATORY NOTE

(This note is not part of the Order)

 

This Order reforms the legislation governing the execution of deeds and documents in order to standardise the formal requirements for companies, corporations and individuals.

 

Article 3 replaces the wording in section 74(1) of the Law of Property Act 1925 (c. 20) (“the 1925 Act”) in order to extend the presumption in favour of a purchaser of due execution by a corporation to all instruments under seal. Such instruments may be attested by two members of the corporation’s governing body.

 

Article 4 adds a new section 74A to the 1925 Act. New section 74A(1) clarifies what is needed for an instrument to be executed as a deed. New section 74A(2) provides a rebuttable presumption that an instrument is delivered on being executed, and thereby makes the provision for corporations analogous to that applicable to companies under the Companies Act 1985 (c. 6) (“the 1985 Act”). The relevant provision in the 1985 Act is re-enacted with modifications by Article 6.

 

Article 5 amends section 36A(6) of the 1985 Act and repeals the irrebuttable presumption in favour of a purchaser of delivery upon execution by a company of a document. Article 6 inserts a new section 36AA into the 1985 Act, mirroring new section 74A of the 1925 Act which applies in respect of corporations, and clarifying the requirements for a document to be executed as a deed by a company. Articles 5 and 6 and Schedule 2 also remove the “face-value” requirement from the 1985 Act, which is still required of all deeds by virtue of section 1(2)(a) of the Law of Property (Miscellaneous Provisions) Act 1989 (c. 40) (“the 1989 Act”), and which is clarified by the amendment made by article 8.

 

Article 7 clarifies the rules which apply where an instrument is executed on behalf of another person by a corporation, company or individual. Article 7(1) inserts a new section 74(1A) into the 1925 Act, which provides that the deemed execution in favour of a purchaser in section 74(1) (as amended by article 3) applies where the corporation executes an instrument on behalf of another person. Article 7(2) inserts a new section 36A(7) into the 1985 Act, clarifying that the provisions of section 36A (as amended by article 6 and Schedule 2) which state how a company may execute a document and provide for deemed execution in favour of a purchaser, apply where a company executes a document on behalf of another person. Article 7(3) amends section 1(2)(b) of the 1989 Act to clarify that a document may be executed by a person on behalf of another, and that it is the person who executes the document (whether or not on behalf of another) who must comply with the formalities. Article 7(4) inserts a new section 1(4A) into the 1989 Act to provide that where one person executes on behalf of another, the witnessing, attesting and delivery requirements of section 1(3) apply.

 

Article 8 inserts a new section 1(2A) into the 1989 Act to clarify that the “face-value” requirement set out in section 1(2)(a) is not satisfied merely because an instrument is executed under seal.

 

Article 9 amends section 1(5) of the 1989 Act to provide that the presumption in favour of a purchaser that solicitors, etc, are authorised to deliver a deed on behalf of a party to it, is no longer limited to the creation or disposal of an interest in land.

 

Schedule 1 makes minor and consequential amendments. Paragraph 2 inserts a new section 74(1B) into the 1925 Act to clarify how the presumption of due execution in section 74(1) applies, where the corporation has a director or secretary who is not an individual. Paragraph 3 amends section 74(3) to clarify that the witness to a conveyance by an individual in the name or on behalf of a corporation must attest the signature. Paragraph 4 amends section 74(4) to provide that where a corporation acts on behalf of another person, it may sign the instrument in the name of that other person. Where the instrument is a deed, this must be done in the presence of a witness who attests the signature. This mirrors the position for individuals, as provided by article 7(4).

 

Paragraphs 6 and 7 amend section 7(1) of the Powers of Attorney Act 1971 (c. 27) and insert a new section 7(1A) to make more appropriate provision for execution by an individual attorney on behalf of a corporate donor.

 

Paragraphs 10, 11 and 12 amend the 1985 Act. Paragraph 10 inserts a new section 36A(4A) to provide that for a document to be validly executed, a director or secretary signing in respect of more than one company must sign for each company which is a party to the document. Paragraph 11 inserts a new section 36A(8) to clarify the position in respect of execution where a company has a director or secretary which is itself a corporation. Paragraph 12 makes a consequential amendment to Schedule 22 to include the new section 36AA inserted by article 6 above in the provisions which apply to unregistered companies.

 

Paragraph 14 amends section 1(4) of the 1989 Act to confirm that where an instrument is executed on behalf on another person, signing includes signing the name of the person on whose behalf the instrument is executed as well as signing the individual’s own name.

 

Paragraph 16 makes a consequential amendment to section 130(6) of the Companies Act 1989 (c. 40) to include the new section 36AA inserted by article 6 above in the provisions which apply to foreign companies.

 

Paragraph 17 makes a consequential amendment to the Land Registration Act 2002 (c. 8) to take account of the effect of the amendments to the Companies Act 1985 on electronic dispositions.'

 

Do Remember that Delivery is not caused by the mere words stated on the Deed itself that a Borrower signs....The words 'delivered as a deed' does not mean that it has been delivered - there can be no presumed delivery of the Borrower without the 'acceptance' of the Lender...better put this way:

 

'A deed conveying real estate takes effect and transfers ownership to the named grantee when the deed is delivered. The mere signing of a deed by the owner as the grantor is not enough to divest the owner of his title to an interest in the real estate. Delivery of the signed deed is required.

 

Delivery refers to two separate acts:

 

the grantor’s (Borrower - YOU) intent to convey title, not just the physical handing over of the deed to the grantee; and

 

the grantee’s (The Known Lender that you have a purported mortgage with) acceptance of the grant deed as an immediate conveyance.

 

While the grantor may intend to convey title when he hands over the deed, if the grantee does not accept the deed, the deed will not be considered delivered and a conveyance does not occur.'

 

Says it all really....... : )

 

Apple

[applecart]

There is a host of detail that relates specifically to the securitisation of a Borrowers Mortgage....there were many detractors who sought to make Borrowers believe there was no redress.... this is not the case.....there is no need to go over the subject any further given that it is the case that knowledge of what the lender does or does not do with his purported interest with third party entities has no baring on the relationship between the Borrower and the Originating Lender.

 

What is of interest to the Borrower...and remains the core interest..is...has the Original Lender secured a valid interest in the Borrowers legal estate?

 

For that, it remains the case that there needs to be in evidence a valid, duly executed deed - as I have said previously - if there is no valid deed - there is no transfer of any legal interest from the Borrower to the Lender.

 

We are again being detracted into the belief that because the Borrower has signed a document headed up as a Deed and has signed to say that it is 'delivered as a deed' and attested by a witness, that HMLR is correct in registering the interest of the lender to secure a right to legal possession. (LPA ss53,54)

 

Thankfully, detractors are rebuffed by the timely findings in the Bibby Financial Services case which gives in depth understanding of the creation of a Deed and explains how and why 'Delivery' is essential for the validity of the Deed.

 

Where a Deed is at issue - the limitations act provides that a claim for redress can be within a time limit of 12 years.. (so, if the repossession of your home happened within the last 12 mths then you should still be able to seek redress)

 

Bare in mind that in that case the signatures of all parties were evident - it was the 'delivery' that was at issue - so what say the consequence when a Deed has only one parties signature with no signature from the Lender...This means there is No Execution and No Delivery......

 

Here's some quotes from the Judgment of His Honor Judge Richard Seymour QC - imagine you are the defendant in the case..

 

.."The question of 'delivery' was material to another point raised by the defendants. It was contended that the Bibby ID Agreement, also intended to be made by deed, had not been delivered because at the meeting at which the signature page of the version of that document put before Mr Magson and Mr Scott was signed by them, amendments to that document also were made in manuscript, with a view to a clean copy incorporating the amendments being produced to be signed subsequently. Thus the version of the Bibby ID Agreement relied upon had never, said the defendants, been delivered by QCFS. That was an important point, for, if it were well founded, it seemed to dispose of the claims in this action....

 

Bibby FS could not seek to enforce a guarantee of obligations which QCFS had never assumed, and equally there could be no question of either Mr Magson or Mr Scott being liable in respect of breaches of obligations on the part of QCFS allegedly owed to Bibby ID which QCFS had never assumed....

 

Another aspect of the issue of delivery of the Bibby ID Agreement was that it appeared that it had never been delivered by Bibby ID as it had never been signed on behalf of that Company...[my emhasis]

 

....Each of the Guarantees and Warrantees which Mr Magson or Mr Scott signed and which formed the bases of the claims against them in this action was, in form, a deed, so was the Bibby ID Agreement which it was said to have been warranted by the Warranties. Thus each of the Guarantees and the Warranties, as well as the Bibby ID Agreement was required to be executed in the manner required by law.

 

In the case of a deed executed by an individual it is provided, so far as is presently material, by Law of Property (Miscellaneous Provisions) Act 1989 s.1 (3) that:-

 

An instrument is validly executed as a deed by an individual if, and only if -

(a) it is signed -

(b) by him in the presence of a witness who attests the signature

(b) it is delivered as a deed by him or a person authorised to do so no his behalf...

 

so far as limited liability companies are concerned, Law of Property Act 1925 s.74A provides that:

 

(1) An instrument is validly executed by a corporation aggregate as a deed for the purposes of section 1(2)(b) of the Law of Property (Miscellaneous Provisions) Act 1989, if and only if -

(a) it is duly executed by the corporation and

(b) it is delivered as a deed

 

Thus, in order for a document to be enforceable as a deed, whether executed by an individual or a limited liability company, it is necessary for it to be delivered as a deed. What amounts to delivery of a deed in English Law has been established for over 400 years. It was explained by Popham J in Hawksland v Gatchel (1601) Cro.Eliz.835 at pages 835 - 836:-

 

'for if, upon delivery, the words spoken by the obligor purport that it shall not be his deed, it is clear that it is not: as where one causeth an obligation to be written and sealed in my name, and brings it unto me, and prays that I would deliver it as my deed, and I say, 'Do you such a thing, and take it as my deed, otherwise not: "it is clear, that it is not my deed until the thing be performed. So if the obligor saith, 'Take it to you, I will not deliver it as my deed;' it is not his deed, wherefore in the principal case, when the obligation is delivered as an escrow, by express words, it is not possible that it should be his deed, fr the words are not sufficient ot make it so until the condition be performed'

 

The critical thing is that the person who has signed the deed must have separately indicated that he intends to be bound by the deed. Mere signature is not enough, nor is it enough that what looks like a deed has been given to the person who appears to be the beneficiary of ti - the issue is nto whether the document has been physically handed over to the beneficiary, but whether the person whose deed it is supposed to be intended to be bound by it. The point was explained by Sir Charles Hall V.C in Watkins v Nash (1875) LR 20 Eq 262 at page 266:-

 

'you cannot deliver the deed to the grantee himself, it is said because that would be inconsistent with its preserving the character of an escrow. But if upon the whole of the transaction it be clear that the delivery was not intended to be a delivery to the grantee at that time, but that it was to be something different, then you must not give effect to the delivery as being complete delivery, that not being the intent of the persons who executed the instrument'."

 

He went on the give judgment in favor of the Defendants...

 

BY ORDER OF THE ADJUDICATOR ANN McALLISTER, the Decision looked at the 'it' element to conclude that 'it' is material to both the Borrower and the Lender for the 'it' relates to the entire Deed - not just the signature requirement of the Borrower as we are being detracted to believe....

"64. The Applicant’s argument proceeds as follows. The ‘it’ in part (a) must refer back to the instrument in question. This means the entire document, and not merely the execution pages or any other page.

 

65. The point was considered by Underhill J in R v Her Majesty’s Commissioners of Revenue and Customs [2008] EWHC 2721. In that case the claimants sought judicial review of the decision of HMRC to seek warrants to search their offices and the decision of the Crown Court to grant the warrants. HMRC’s case was that the scheme in question was flawed and that the claimants sought dishonestly to conceal the flaws. The judge therefore had to consider whether the scheme was flawed.

 

66. It was common ground that the documents in question were intended to be deeds. It was also common ground that the clients were asked to sign incomplete drafts of each of the three documents and that, when fresh documents in final form came to be executed, the client was not asked to sign these versions but instead the signature pages from the drafts were detached and stapled to the final version. There were differences between the drafts and the final versions.

 

67. The claimants argued that there was nothing wrong with the procedure adopted, and referred to a number of decisions which state that a contract in writing could effectively be altered after the signature provided that the party making the change had the authority so to do. On the facts, the judge rejected these submissions. He also stated that he was not aware of any authority, in contract law, where a signature page was taken from one document and recycled for use in another. He went on to say: ‘The parties in the present case must be taken to have regarded signature as an essential element in the effectiveness of the documents: that is to be inferred from their form. In such a case I believe that the common understanding is that the document to be signed exists as a discrete physical entity (whether in a single version or a series of counterparts) at the moment of signing. The significance of this is not entirely talismanic (though it would not affect my view even if it were): the requirement that a party sign an actual existing authoritative version of the contractual document gives some, albeit not total, protection against fraud or mistake.’ [39]

 

68. Underhill J then went on to consider what he described as the additional factor that each of the three key documents was intended to be a deed. He set out the provisions of section 1(3) and said: ‘Mr Bird submitted, and I agree, that that language necessarily involves that the signature and attestation must form part of the same physical document (the ‘it’) referred to at (a) which constitutes the deed.’ [40]. He also stated: ‘ I accept that the flaws on which HMRC rely are essentially formal. But I see nothing wrong in applying a strict test of formality to the validity of the agreements with which we are concerned in this case. The entire raison d’etre is to create – and demonstrably to create – a series of formal legal relationships: if they do not do that, they do nothing.’

 

69. It is correct to say that in the Mercury case there were differences between the two versions of the documents. This is not the case here. There is only one version of the Lease. But it seems to me that section 1(3) clearly provides that the signature and attestation must form part of the physical instrument at the moment of signing. This requirement stands alone, regardless of whether there were earlier drafts (which may or may not have been materially different). The policy argument is that the signature should reflect the proper agreement: if the signature is obtained separately the maker cannot be sure of the terms of the deed and the risk of fraud or mistake remains.

 

70. Mr Ollech submitted that, carried to an extreme, this line of reasoning would produce a situation where a document would be invalid if the signature pages were signed in another part of the room or possibly even merely detached from the remainder of the deed. The question must always be whether the signature page and other relevant pages formed part of the same physical document. That will be a question of fact in each case. In this case, the relevant pages were clearly separate from the remainder of the Lease: they were signed separately and returned separately (and not by Mr Westwood) at some unspecified time after the other leases were executed (and after Mr Westwood had stated, initially, that he did not intend to execute the Lease) and were accordingly not in any sense part of the ‘it’ referred to in the statute.

 

71. Section 52(1) provides that all conveyances of land are void for the purpose of creating a legal estate in land unless made by deed. Accordingly, in my judgment, the Lease is void as it was not made by deed.

 

76. Although the point is not free from difficulty, I have come to the view that the Applicants’ submissions on this point are correct. The attestation of a witness was held to be only secondary. The signature on the deed is not secondary: it is fundamental to the validity of the deed. The lack of a (valid) signature cannot be cured by estoppel. If the signature is not on the complete instrument it is not a signature on the deed. It is merely a signature on one or more pages which do not, at the moment of signing, form part of the deed. The fact that the deed (the ‘it’) is not one document at the moment of signing leaves open, of course, the possibility of fraud or mistake. If it were possible to argue that the doctrine of estoppel can cure the absence of a valid signature on the deed itself the statute could, in all circumstances, be circumvented. Formality has its well established place in the law, even though (as with the operation of the limitation period) the outcome may seem arbitrary, and, in the case of deeds, possibly commercially inconvenient."

 

These are the Authorities that Borrowers should be aware and familiar with...they deal specifically with the Deeds that are party to the relationship between the Borrower and the Originating Lender and the requirement for a signature from both parties - not just the Borrower.

 

HMLR's practice guide 39 at Clause 2.2 clearly states that it is not concerned with the underlying agreement between the Borrower and the Lender. The Adjudicator of the HMLR has shown a clear decision, that they are concerned and will cause HMLR to set aside the charge of the Lender where the Deed is void.

 

It is a UN1 form that assists borrowers to protect their estates and homes against the Lender in the first instant. The Borrower does not have to justify to HMLR any reason as to why they wish the unilateral notice entered in this form. It is only if you apply for an agreed notice that you have to justify the request.

 

I hope this helps to keep away from detractions and keep things in perspective?

 

Apple

[bhall]

Eagle Star Insurance Company Ltd v Green & Anor [2001] EWCA Civ 1389 (8 August 2001)

 

12. So, says Mr Green, section 2 requires the signature of all the parties to a mortgage, being a contract for the disposition of an interest in land. He says that if you look at this mortgage at the end where the signatures appear it will be seen (on page 50 of Volume 1 of the bundles of documents) that there are the signatures of himself and Miss Challis, but there is no signature on behalf of Eagle Star. So, he submits, the mortgage of 8th November 1989 does not comply with the requirements of section 2 of the 1989 Act, which by then had come into force. He made it clear that it is not disputed that he owes money to Eagle Star, but there is a dispute about the precise amount. He emphasised that he has been regularly paying monthly payments to Eagle Star, though he accepts there are arrears. He says that the effect of applying section 2 to the mortgage of 8th November 1988 is that it is unenforceable. That means that the Eagle Star company are not entitled to obtain the order for possession which it obtained from His Honour Judge Jones. He emphasised a number of times during his submissions that without the signature of someone on behalf of Eagle Star the mortgage is not a full and complete legal document and so they are not entitled to enforce the charging provisions in it against him.

 

13.Mr Green referred to some passages in the report of the Law Commission which led to the bill enacted in the 1989 Act. He referred to passages in the Law Commission Paper No.164, in particular 4.5, 4.6 and 4.8. He also referred to a number of authorities. I think the most important of these (because it was concerned with a mortgage, while the other cases he referred to concerned contracts for the sale of land) was United Bank of Kuwait Plc v Sahib [1997] Ch at 107. I have been supplied with a copy in [1996] 3 All ER 251. That is an important case. It decided that the requirements contained in section 2 of the 1989 Act to the effect that a contract for the sale or other disposition in land must be in writing in a single document incorporating all the terms and signed by the parties, abolished the rule that a mere deposit of title deeds relating to property by way of security created a mortgage or charge. Following the 1989 Act the rule had changed. There had to be a written document, not merely a deposit of title deeds by way of security in order to create a mortgage or charge.

 

14.Mr Green relied on that for the proposition that the same should apply to this case because there was, in this case, within the mortgage deed a contract by him in the form of the covenant to repay. There were also contractual provisions or covenants by Eagle Star. So, he said, if the mortgage in United Bank of Kuwait v Sahib was governed by section 2 of the 1989 Act, so should this mortgage with similar results for its enforceability.

 

15.In my judgment this argument does not stand any real prospect of success. This is not a case of a contract: it is a case of a deed. If we were simply dealing with a contract to create a mortgage then Mr Green would be right. But in this case he and Miss Challis have actually executed a deed. It is clear from the provisions of the 1989 Act itself that a distinction is drawn between the formal requirements affecting the execution of deeds and the formal requirements governing contracts. Section 1 makes alterations to the law about the execution of deeds. For example, they are no longer required to be written on any particular kind of substance and a seal is not required for the valid execution of an instrument as a deed by an individual. There are a number of detailed provisions in section 1 relating to deeds. Section 2 does not apply to deeds; it applies to contracts. It may be a contract for the sale of land, it may be a contract for some other kind of disposition of an interest in land, one other kind of disposition being a transfer by way of security over what is commonly called a mortgage or charge.

 

From the above

 

1) The Appllant claimed that the signature of all the parties to a mortgage, being a contract for the disposition of an interest in land was required.

 

2)However,there are the signatures of himself and Miss Challis, but there is no signature on behalf of Eagle Star.

 

3) He emphasised a number of times during his submissions that without the signature of someone on behalf of Eagle Star the mortgage is not a full and complete legal document and so they are not entitled to enforce the charging provisions in it against him.

 

4)In my judgment this argument does not stand any real prospect of success. This is not a case of a contract: it is a case of a deed. If we were simply dealing with a contract to create a mortgage then Mr Green would be right. But in this case he and Miss Challis have actually executed a deed. It is clear from the provisions of the 1989 Act itself that a distinction is drawn between the formal requirements affecting the execution of deeds and the formal requirements governing contracts.

 

In my mind the above precedent set by the above Court of Appeal case confirms that whilst the mortgage agreement (the contract) has to be signed by both the borrower and the lender, the mortgage deed (the charge) is executed (signed) by the borrower only.

 

Whilst the judgement can become clouded by reference to s.2. This is a deliberate attempt draw away from the simple fact that in this case the deed was only signed by the borrower and that it was the judgement of the Court of Appeal that the deed was valid and enforceable.

 

Helden v Strathmore Ltd [2011] EWCA Civ 542 (11 May 2011)

 

This is another Court of Appeal case -

 

29. Mr Helden's case on section 53 is only marginally less weak. The section does indeed apply to mortgages, as, unlike section 2, it is concerned with the "creat[ion] or disposi[tion]" of any "interest in land". However, it is far less prescriptive than section 2, which requires every term of the arrangement to be included in a document or identical documents signed by both parties. Section 53 merely requires the arrangement to be in a document signed by the person creating or disposing of the interest. Section 2 therefore may give rise to problems when it comes to estoppel or rectification (as discussed in the thoughtful judgment of Morgan J in Oun v Ahmed [2008] EWHC 545 (Ch), paras 41-55), but no such problems arise in connection with section 53.

 

From the above

 

1) Section 53 merely requires the arrangement to be in a document signed by the person creating or disposing of the interest.

This case would appear to confirm that the document (the deed) merely needs to be signed only by the person creating or disposing of the interest, in otherwords the borrower only needs to sign the deed as a result of s.53 of the Law of Property Act 1925.

 

s.53 of the Law of Property Act 1925

 

53 Instruments required to be in writing.(1)Subject to the provision hereinafter contained with respect to the creation of interests in land by parol—

(a)no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent thereunto lawfully authorised in writing, or by will, or by operation of law;

 

(b)a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will;

 

©a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorised in writing or by will.

 

(2)This section does not affect the creation or operation of resulting, implied or constructive trusts.

 

 

From the above

 

(a)no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent thereunto lawfully authorised in writing, or by will, or by operation of law;

 

This confirms that deed must be in writing and signed by the person (the borrower_ creating or conveying the interest in land.

 

It makes no stipulation that it must also be signed by the lender.

 

s.1 Law of Property (Miscellaneous Provisions) Act 1989

 

1 Deeds and their execution.

 

(1)Any rule of law which—

(a)restricts the substances on which a deed may be written;

(b)requires a seal for the valid execution of an instrument as a deed by an individual; or

©requires authority by one person to another to deliver an instrument as a deed on his behalf to be given by deed,

is abolished.

 

(2)An instrument shall not be a deed unless—

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

(b)it is validly executed as a deed by that person or, as the case may be, one or more of those parties.

 

(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 by him or a person authorised to do so on his behalf.

 

From the above

 

1) by the person making it

2) it is validly executed as a deed by that person

 

This further confirms that the deed must be executed (signed) by the person (the borrower) making it. As per s.53 of the Law of Property Act 1925, the above makes no stipulation that the deed must also be signed by the borrower.

 

In plain English, if the mortgage deed (the charge) has not been signed by the lender it does not make it void.

[applecart]

Caggers.....

 

Please refer to Ben's thread on the topic of Mortgage Deed - Does it have to be signed by the Lender?

 

This concludes that the Deed is void - as it does not comply with the 'absolute' requirement that no transfer of an interest in land and non accepted by valid deed in compliance with the LPA 1925 s.52 (1) for failure to comply with the Companies Act s.46, LPA Act s.74A, LP(MP) Act 1989 s 1 (2)(a)(b) whichsoever is appropriate to the Borrowers purported loan/mortgage...

 

It would not have come about if it had not been for Ben's forward thinking to create the above thread referred to that the balance once again is in a Borrowers favor ..........., SO.....Big Thanks to Ben for supplying case Law and references that were necessary for this conclusion to be evidenced : )

 

Apple

 

 

 

Apple

[applecart]

For ease of access to Ben's thread:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?386717-Mortgage-Deed-Does-it-need-to-be-signed-by-the-lender&highlight=mortgage+deed

 

Apple

[mollypockets]

All these cases have two things in common:

 

1) The Borrower argued mortgage securitisation impacted upon the rights of the lender.

2) The Borrowers arguments were not held.

 

Why on Earth would a persecuted (by the lender) borrower,argue for the rights of the poor lender?I think now-a-days we forget that the "borrower" is a human being who is trying to keep his wife and children safe and warm in-doors,being that we dont live in caves anymore,COMPARED to the so called "lender"witch is nothing more than an untrustworthy corperation(banker [EDIT])in witch the only thing that matters is the bottom line profits.And dont forget these fat-cats push their lowly staff to do their dirty work,,,,,I mean,C'MON folks,,,,,,we are all better than this,,,,,,doesn`t need to be the case of them and us,just everyone is "us"nothing more and nothing less:|