Mortgage Deed - Does it need to be signed by the lender ?

[searching70]

I have a deed which I really would like to know is correct and would like any helpful points from anyone who can please?

 

I have attached a copy of my deed...and I have been reading this thread with great interest....so many different views from so many....really finding it a little confusing to understand but will continue to.

 

Thanks in advance to all.

[nomorecrooks]

s.53 of the Law of Property Act 1925

 

@bhall:

 

 

• I too have a mortgage with Kensington ("KMC");
  
• I have read most, if not all, of the discussions between yourself and applecart.
  
• I am inclined to agree with your argument that the deen need NOT be signed by the lender.
  
• I have a letter from KMC which states: KMC “has passed the beneficial title to a third party“ and that KMC "retains legal title".
  

My question to you: does the fact that KMC states it has no beneficial (is this the same as equitable?) interest affect the position of the lender?

[searching70]

If a lender passes the beneficial title to a third party.....then should it not be them who have to issue any proceedings and you be dealing with them?

[applecart]

I have a deed which I really would like to know is correct and would like any helpful points from anyone who can please?

 

I have attached a copy of my deed...and I have been reading this thread with great interest....so many different views from so many....really finding it a little confusing to understand but will continue to.

 

Thanks in advance to all.

 

I've had a quick look at your document headed up 'Legal Charge'- your legal charge is a request for a charge to be entered against unregistered land. Please be guided that the outcome in Eagle Star related to initial unregistered land as well.

 

You will note on the 'mortgage deed' thread that reference is made to 'chitty' - what has been posted - relates only to deed entered into prior to the amendments made to the 1989 by the 2005 Order..

 

In relation to the coming into force of the 2005 Order - Chitty states:

 

At 1 -115 - Deeds executed on or after September 2005

 

“Instruments executed” The 2005 Order refers to “instruments executed” and this raises the question as to how the changes it introduced apply in relation to the making of deeds. It could be thought that a deed (the instrument) is “executed” only after its delivery and not merely only after the making of the document, as only on delivery is the deed a valid instrument..

 

However the 2005 Order (following the Law Commission’s Redommendation) distinguishes clearly between the formal requirements required for execution of an instrument (or document) and the further requirement of delivery for the execution of an instrument as a deed and this argues that the changes in the Order apply only to documents executed on or after September 15 2005 and not also to documents executed as deeds on or before the 14 September 2005, but delivered as deeds on or after this date. This interpretation also has the practical advantage of not applying the changes contained in the Order retrospectively"

 

At 1 – 126 it states ‘conveyance as an escrow’

 

"Where a conveyance is executed by the vendor and entrusted to his solicitor with a view to it being handed over to the purchaser on completion, then in the absence of special circumstances, it is to be inferred that the conveyance is executed as an escrow upon payment of the purchase price and (where appropriate) execution by the purchaser. In such a case, there must be a time limit within which the implied condition of the escrow is to be performed. So if the Vendor by notice makes time of the essence of the contract, and the purchaser does not within the time specified in the notice perform the condition, it is no longer possible for the condition of the escrow to be performed. However the inference as to delivery as an escrow arising from non payment of the price can be rebutted by other circumstances attending the delivery."

 

The concept of ‘Delivery’ was retained by the 2005 Order…

 

Delivery

 

It remains the case after the 1989 legislation that “where a contract is to be by deed, there must be ‘delivery’ to perfect it, “Delivered” however in this connections does not mean ‘handed over’ to the other party. It means delivered in the old legal sense, namely, an act done so as to evince an intention to be bound. Any act of the party which shows that he intended to deliver the deed is enough. He must make it his deed and recognise it as presently binding on him.

 

SO...NOW:

 

"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," said the ruling, as reported by legal information service Lawtel. "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 it – the issue is not 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." [bibby]

 

So...NOW:

 

Deeds are more formal than contracts and must be signed, witnessed and 'delivered' to the other party, meaning that the parties must show in some way that they wish to be bound by the documents.

If deeds are being used then all parties need to be totally clear on when a document becomes a deed if they are to be able to rely on it in future said Lucy Shurwood, a financial services law specialist at Pinsent Masons, the law firm behind Out-Law.com.

 

source: http://www.out-law.com/en/articles/2011/october/deeds-not-delivered-despite-signatures-rules-high-court/

 

I can understand your confusion and yes, it will take some reading to get to grips with the host of information that is being posted - but, hopefully in time it will make a lot more sense to all : )

 

Apple

[applecart]

If a lender passes the beneficial title to a third party.....then should it not be them who have to issue any proceedings and you be dealing with them?

 

You are right in principle - but, this is not what appears on the surface - proceedings will always be seen to be brought in the name of your existing lender - regardless of whether there is an SPV lurking in the background as the actual beneficiary.

 

The Law does not make provision for the Legal and equitable interest to be separated. (it is only 'equity' that makes such a provision)

 

If it is Registered Land that is party to a disposition to an SPV - then it is the whole of the interest - both legal and equitable due to the LP(MP)Act 1994 s 2 (3) (in relation to the Borrowers sale to the lender in the first instance and then in relation to the Lenders sale to the SPV)

 

(3) In the case of a disposition of an existing legal interest in land, the following presumptions apply, subject to the terms of the instrument, in ascertaining for the purposes of the covenants implied by this section what the person making the disposition purports to dispose of—

 

(a) where the title to the interest is registered, it shall be presumed that the disposition is of the whole of that interest;

 

(b) where the title to the interest is not registered, then—

 

(i) if it appears from the instrument that the interest is a leasehold interest, it shall be presumed that the disposition is of the property for the unexpired portion of the term of years created by the lease; and

 

(ii) in any other case, it shall be presumed that what is disposed of is the fee simple.

 

It will normally always be 'registered' land that is sold/transferred on by thew originating lender, for even if the relationship started off with unregistered land - as soon as that land is given a title number by HMLR - it is registered land - the sale of the mortgage will not take place until the Lender has registered his interest at HMLR. If the lenders sale to an SPV includes 'un-registered land for any reason then - you can see from the legislation what the provision is above....

 

Equitible grounds is what the Lender is referring to when he says - he has sold on the beneficial interest - but retained legal title - what this means in essence is that because LRA s.58 confers 'conclusive' Title - the Original Lender relies that he has a legal right to possession by virtue of this statute....

 

This is rebuffed by LPA 1925 s 1. (7) - when it can be shown that the Lender has admitted to selling the beneficial interest - or you have evidence that he has done so for this legislation confirms that where the Title of a Lender is conferred purely by operation of Law - that it is to have equitable effect only...

 

Apple

[bhall]

My question to you: does the fact that KMC states it has no beneficial (is this the same as equitable?) interest affect the position of the lender?

 

Hello Nomorecrooks

 

I am sorry I was unable to respond to you sooner as I was away for a few days.

 

Your question has already been considered in the Court of Appeal case Paragon Finance Plc v Pender & Anor [2005] EWCA Civ 760 (27 June 2005) (apologies for the small screen shot - please see paragraph 109)

 

In that case Lord Justice Jonathan Parker said -

 

 

"In my judgement as a matter of principle the right to possession conferred by the legal charge remains exercisable by Paragon as the legal owner of the legal charge (i.e as the registered proprietor of it), notwithstanding that Paragon may have transferred the beneficial ownership of the legal charge to the SPV"

 

In answer to your question and based upon the above, in terms of the position of the lender in seeking possession, it would appear no.

Edited April 13, 2013 by bhall

[bhall]

If a lender passes the beneficial title to a third party.....then should it not be them who have to issue any proceedings and you be dealing with them?

 

Hello Searching 70

 

This question has been considered and answered by the Court of Appeal, also in the case of Paragon Finance Plc v Pender & Anor [2005] EWCA Civ 760 (27 June 2005) (apologies for the small screen shot - please see paragraphs 110-111)

 

In that case Lord Justice Jonathan Parker said -

 

 

Lord Justice Jonathan Parker confirmed that whilst the lender is the registered proprietor of the legal charge it was a necessary party to any claim for possession and whilst the SPV is the owner of the legal charge in equity, it isn't a necessary party.

Edited April 13, 2013 by bhall

[bhall]

There have been posts made in a number of different threads with vague references to case law and legislation. With those posts we have been provided with personal opinion and interpretation.

 

I think to move this discussion forward and to prevent it turning into a Merry go round, where we all just go around in circles, the time has come to take a closer look at those posts and the arguments that on the fact of it appear to support the view that a "mortgage deed" that has not been signed by the lender is void.

 

To start with, I feel we should first look at the posted case law -

 

Both Eagle Star and Helden serve only to help Borrowers be mindful of the pitfalls - they serve no further purpose and are not worthy of any further discussion - I think we can all agree that we are concerned here on the CAG with only those cases that have provided success for the Borrower....................NOT cases that promote and lord the success of the Lender!!

 

Such success for the Borrower can be found so far in:

 

Bibby Financial Services and others v Magson and others [2011] EWHC 2495 (QB)

Silver Queen Maritime Ltd v Persia Petroleum Services [2010]

Garguilo v Jon Howard Gershinson & Anr [2012] EWLandRA 2011_0377 (06 January 2012)

 

The last and in my opinion the most important of the 3 cases above is the decision of the Adjudicator of HMLR in Garguilo v Jon Howard Gershinson.......it can be found here: http://www.bailii.org/ew/cases/EWLandRA/2012/2011_0377.html

 

The thread was to do with 'does the lender have to sign'....??

 

The 3 cases posted above say YES...in brief:

 

Bibby says 'YES' by confirming that the Lender must sign to make the borrower and themselves bound to their individual obligations

 

Silver says 'YES' by confirming that if the lender has not signed then it is a deed in escrow - awaiting performance from the lender and that a deed in escrow is not 'instant' and is therefore invalid until such time as it is signed or a complete nullity if the time of signing is way past a reasonable time...

 

Garguilo says 'YES' by confirming that if the whole document is not party to the Deed - the 'it' is not signed and is not enforceable against a Borrower....HMLR is shown to be sending Borrowers at best 2 pages of the purported deed as 'official copies' that does not meet the 'it' requirement that the HMLR's own Adjudicator found to be an important element of a deed.....

 

The Penders, The Greens, The Heldens all suffered because these cases were either not available at the time they sought defence or were simply not relied upon even though they were around - notably non of these cases were relied upon by the Defending Solicitors to protect their clients interests (the Borrower)...when they were around....

 

 

Apple

[bhall]

Such success for the Borrower can be found so far in:

 

Bibby Financial Services and others v Magson and others [2011] EWHC 2495 (QB)

 

Bibby says 'YES' by confirming that the Lender must sign to make the borrower and themselves bound to their individual obligations.

 

First we turn to the case of Bibby Financial Services and others v Magson and others [2011] EWHC 2495 (QB). (apologies for the small screen shot - please see paragraphs 329-337)

 

As regular readings may recall this case is posted on almost a daily basis in support of the argument that the lender is required as a matter of law to sign the "mortgage deed".

 

To a large extent this case is irrelevant to the argument of if a lender is required to sign the "mortgage deed".

 

Bibby is a case about the grantor of the deed (in the case of the mortgage deed the grantor would be the borrower) disputing that the document signed, was intended to be delivered as a deed. It has nothing to do with if a lender has signed a mortgage deed or not.

 

 

 

In Bibby the documents were signed as a show of faith and were due to be amended. As such the document was not delivered as a deed, as there was no intention of the party executing the deed to be bound by it.

 

This has nothing to do with a lender signing a "mortgage deed".

 

Can a borrower rely on the arguments used in Bibby ?

 

The "mortgage deed" signed by the borrower is not subject to a later amendment. Furthermore, it can be shown that a borrower has shown his/her intention to be bound by it, by it being sent to the HMLR for registration.

 

So whilst this case has been posted on a daily basis, closer inspection shows that it does not support the argument that the lender is required to sign the mortgage deed.

Edited April 13, 2013 by bhall

[bhall]

Silver Queen Maritime Ltd v Persia Petroleum Services [2010]

 

Silver says 'YES' by confirming that if the lender has not signed then it is a deed in escrow - awaiting performance from the lender and that a deed in escrow is not 'instant' and is therefore invalid until such time as it is signed or a complete nullity if the time of signing is way past a reasonable time...

Apple

Silver Queen Maritime Ltd v Persia Petroleum Services [2010] (apologies for the small screen shot - please see paragraph 116)

 

 

 

The following is by way of an example -

 

 

 

If we look at Silver, we can see exactly what it confirms -

 

"116. In my view the relevant facts place the Settlement Deed firmly in the second of the three categories identified by Nourse LJ in Longman v Viscount Chelsea. This was an escrow. In other words, the Settlement Deed, when sent by Memery Crystal, in accordance with their instructions, to King & Spalding on 21 July 2009 was in the class of document described by Farwell LJ in the Foundling Hospital case (at p 377) as one which is "delivered upon a condition on the performance of which it will become a deed, and will take effect as from the delivery". The conditions, and the only conditions, upon which the Settlement Deed was delivered were those set in the e-mail sent at 5.01 p.m. on 21 July 2009 by Memery Crystal to King & Spalding to which it was attached, namely, first, that it was to be signed for Silver Queen, and secondly, that it was then to be sent back to Memery Crystal. Those conditions had both been discharged when King & Spalding's e-mail of 4.04 p.m. on 22 July 2009 was sent to Memery Crystal, whereupon the Settlement Deed took effect as a deed. Thus the escrow conditions were promptly discharged, and there is no room in the present case for any argument that their performance was unreasonably delayed (see Harman LJ's caveat in Beesly v Hallwood Estates (at p 118)). Being irrevocable from the time of its delivery as an escrow, the Settlement Deed could not be recalled by PPS pending its taking effect. Thus PPS's purported withdrawal "from the exchange of the settlement agreement" in Memery Crystal's e-mail of 8.15 a.m. on 22 July 2009 was not, and could not be, an effective revocation of it."

 

The deed was only delivered in escrow, because of conditions set by Memery Crystal to King & Spaldingin an email of 21 July 2009. Those conditions being -

 

1) that it was to be signed for Silver Queen

2) that it was then to be sent back to Memery Crystal

 

 

As we all know when the "mortgage deed" is sent to the HMLR for registration (evidence of the borrowers intent to be bound by his deed) the borrower does not stipulate that the lender must sign the deed, as per the above detailed email.

 

Again, closer inspection of this case shows that it does not prove or support the argument that a lender is required to sign the "mortgage deed"

Edited April 13, 2013 by bhall

[bhall]

 

Garguilo v Jon Howard Gershinson & Anr [2012] EWLandRA 2011_0377 (06 January 2012)

 

The last and in my opinion the most important of the 3 cases above is the decision of the Adjudicator of HMLR in Garguilo v Jon Howard Gershinson.......it can be found here: http://www.bailii.org/ew/cases/EWLandRA/2012/2011_0377.html

 

Garguilo says 'YES' by confirming that if the whole document is not party to the Deed - the 'it' is not signed and is not enforceable against a Borrower....HMLR is shown to be sending Borrowers at best 2 pages of the purported deed as 'official copies' that does not meet the 'it' requirement that the HMLR's own Adjudicator found to be an important element of a deed.....

 

(1) Andrew Francis Garguilo (2) Jennifer Margaret Garguilo v (1) Jon Howard Gershinson (2) Louisa Brooks both acting as Joint Fixed Charge Receivers of Desmond Daniel Charles Moore in respect of Flat 4, Station Court, 140A High Street, Godalming (Deeds) [2012] EWLandRA 2011_0377 (06 January 2012)

 

(apologies for the small screen shot - please see paragraphs 63-71)

 

In a similar way to Bibby this case has also been repeatedly referred to. However, closer inspection reveals -

 

 

This case is irrelevant as where the borrower and witness sign are part of the document - being the "mortgage deed". This can be easily demonstrated by the mortgage deeds in this post

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?386717-Mortgage-Deed-Does-it-need-to-be-signed-by-the-lender&p=4186458&viewfull=1#post4186458

Edited April 13, 2013 by bhall

[bhall]

In addition to the above cases we have also been referred to the case of United Bank of Kuwait PLC v Sahib & Ors [1996] EWCA Civ 1308

http://www.bailii.org/ew/cases/EWCA/Civ/1996/1308.html

 

CASE LAW....There is:

 

United Bank of Kuwait PLC v Sahib & Ors [1996] EWCA Civ 1308 - Supreme Court....

 

In Brief......in this particular case..LORD JUSTICE PETER GIBSON was tasked with a similar issue that will face any court, when a Borrower brings a challenge where the deeds are not signed by the lender - he begins:

 

'since 1783 a deposit of title deeds relating to a property by way of security has been taken to create an equitable mortgage of that property without any writing notwithstanding section 4 of the Statute of Frauds 1677 and its successor, section 40 of the Law of Property Act 1925.

 

The main question that arises on this appeal is whether this much criticised but well established rule has survived the coming into force of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989...'

 

At page 4 (beginning) he says: 'The effect of section 2 is, therefore, that a contract for a mortgage of or charge on any interest in land or in the proceeds of sale of land can only be made in writing and only if the written document incorporates all the terms which the parties have expressly agreed and is signed by or on behalf of each party'

 

This case was not an 'application' seeking permission to appeal - this was an actual 'appeal' and is an Authority...Lower courts are bound by it.... unlike Paragon v Pender..if I am wrong as to that, then I'm more than sure others will argue the point in time....but I think not : )

 

There is also: 'Bibby Financial Services Ltd v Magson [2011] EWHC 2495 (QB) - not binding on lower courts, but non the less holds quite compelling content...

 

In response to the above assertion that Kuwait is binding whilst Pender is not, I have already posted detailed information about the two cases which can be found here -

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?335240-TMB-Securitisation&p=4201210&viewfull=1#post4201210

 

In terms of the Kuwait case we must refer to the authority of Eagle Star Insurance Company Ltd v Green & Anor [2001] EWCA Civ 1389 (8 August 2001) (apologies for the small screen shot - please see paragraphs 12-18)

 

 

by way of summary

1) "In my judgment the case in United Bank of Kuwait v Sahib does not help Mr Green, because that was a case where there was no deed,unlike this case"

To avoid any confusion in the case of United Bank of Kuwait, there was no mortgage deed

 

2) "There was in that case a purely informal equitable mortgage by deposit of title deeds. That had no effect because, as a contract, it was required to comply with section 2 and it did not comply."

 

As posted - "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."

 

3) In my judgment His Honour Judge Jones was right to reject the submission that Mr Green made on the effect of section 2. Having referred to the point that it was unarguable, he said:

 

"Section two applies to a contract for the sale of an interest in land or a contract for some other disposition in relation to land. A contract to create a mortgage would obviously have to comply with section two and if it did not then it would not be a valid contract.

 

However, in this case there was no contract for the mortgage, there was simply the execution of the mortgage deed. That mortgage deed is a mortgage deed. It is not a contract to create a mortgage. I need really say no more than that about it."

 

To be clear Eagle Star confirms that s.2 applies to mortgage contracts and not to mortgage deeds.

 

Unlike s.2 of the LPA MP (which applies to contracts) s.1 (which applies to mortgage deeds) does not include a provision that the document must be signed by both parties which is the point made -

" A deed is a different kind of instrument from an ordinary contract; and it is not a requirement of the execution of a deed that it should comply with the requirements of section 2 of the 1989 Act."

Edited April 13, 2013 by bhall

[bhall]

We can establish upon closer analysis, to a large extent the case law that has been posted in support of the argument that the lender is required to sign the mortgage deed is irrelevant.

 

Now we can turn our attention to the legislation that has been posted in support of this argument to see if anything can be found to support that argument.

 

Firstly I turn to s.2 of the Law of Property (Miscellaneous Provisions) Act 1989.

 

To be clear and to avoid any confusion, it is s.1 that applies to deeds. s.2 does not apply to deeds. However, I feel that before we look at what the legislation states in relation to deeds I should refer to s.2 (3) which states -

 

(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.

 

This demonstrates that if it is the intention of legislation for both parties to sign a document, legislation will state that, as it has in relation to contracts.

 

s.1 of the same legislation which applies to deeds does not contain any such provision. Surely if it was the intention of legislation for both parties to sign the deed, legislation would state that has it has and does for contracts.

 

This is straight forward common sense

[bhall]

One particular statutory instrument has been referred to a number of times in support of the argument that the law requires the lender to sign the mortgage deed - being The Regulatory Reform (Execution of Deeds and Documents) Order 2005

 

Indeed, it has been said -

 

Now it is to deal with the Deed issue - which simply cannot be allowed to fester for much longer - not whilst it remains a risk that is against public policy against the interests of consumers......

 

This is why the Law Commission brought about the Reform Order of 2005.....

 

The Regulatory Reform (Execution of Deeds and Documents) Order 2005

 

From the Introductory text of the above: -

 

Made 23rd June 2005 - Coming into force in accordance with Article 1(1)

 

"(a)the Lord Chancellor consulted—

(i)such organisations as appeared to him to be representative of interests substantially affected by his proposals for this Order,

(ii)the Law Commission,

(iii)the National Assembly for Wales, and

(iv)such other persons as he considered appropriate;.........

 

"(h)this Order creates burdens affecting persons in the carrying on of certain activities, and the Lord Chancellor is of the opinion that—

 

(i)the provisions of this Order, taken as a whole, strike a fair balance between the public interest and the interests of the persons affected by the burdens being created, and

(ii)the extent to which this Order removes or reduces one or more burdens, or has other beneficial effects for persons affected by the burdens imposed by the existing law, makes it desirable for this Order to be made;"

Article 1 (1) says:1.— "(1) This Order may be cited as the Regulatory Reform (Execution of Deeds and Documents) Order 2005 and shall come into force at the end of the period of 12 weeks beginning with the day on which it is made"

 

So, if the LAW says a Deed is intended to be signed by the 'parties' to it - then, that is what is supposed to happen - BY LAW..... you cannot undo what the legislator has implemented just because it does not suit a personal commercial objective....... it's all good when nobody knows what you are up to....but....it's just tough luck when that 'luck' runs out and you are found out:whoo:

 

Regrettably for Lenders who have not signed deeds in the misguided belief that the Law is on their side......such as those who have for years acted against the interest of public policy in packaging and selling off pools of mortgages to SPV's....are more than due to come home to roost.....

 

I tell you what..... you'll soon see how quick it is for a plausible government to sort these so called times of 'austerity' out once this mess is sorted out!!!!... If we don't sort it.... Cyprus will not be just another news item for us in the UK, but a reality (dratt I've put my political head on.... not my place... we have Mr Cameron and Mr Clegg for that)

 

Applecart

 

This raises the question, does the law says that both parties or more specifically does the law say that the lender must sign the mortgage deed.

 

To answer this question, I consider we should look through theThe Regulatory Reform (Execution of Deeds and Documents) Order 2005 as promoted as a source to support the argument that a lender must sign the mortgage deed to see if the law does in fact say that (as it does in terms of contracts s.2 of the lpa mp)

[bhall]

Here we go -

 

 

No it does not state that both parties or for that matter the lender must sign the deed

 

 

No it does not state that both parties or for that matter the lender must sign the deed

 

 

No it does not state that both parties or for that matter the lender must sign the deed

 

 

No it does not state that both parties or for that matter the lender must sign the deed

 

 

No it does not state that both parties or for that matter the lender must sign the deed

 

 

No it does not state that both parties or for that matter the lender must sign the deed

 

 

No it does not state that both parties or for that matter the lender must sign the deed

 

Now we move onto schedule 1

 

http://www.legislation.gov.uk/uksi/2005/1906/pdfs/uksi_20051906_en.pdf

[bhall]

 

 

No it does not state that both parties or for that matter the lender must sign the deed

 

Now we turn our attention to schedule 2

 

http://www.legislation.gov.uk/uksi/2005/1906/pdfs/uksi_20051906_en.pdf

[bhall]

 

Again, No it does not state that both parties or for that matter the lender must sign the deed

 

After going through the The Regulatory Reform (Execution of Deeds and Documents) Order 2005, we can see that it does not state that both parties or for that matter the lender must sign the deed.

 

Even when you cross reference the above with the legislation it amends, there is still nothing that states that both parties or for that matter the lender must sign the mortgage deed.

 

Surely if this was the intention of the law, the law would say that, as it does ever so clearly for contracts.

 

http://www.legislation.gov.uk/uksi/2005/1906/pdfs/uksi_20051906_en.pdf

[bhall]

Despite everything that has been posted with all the vague references to different case law and legislation, two facts remain clear and undeniable

 

1) There is absolutely nothing to be found in the legislation posted to say that the lender must sign the mortgage deed.

2) The only case posted in relation to this topic which is actually about a mortgage deed that has not been signed by the lender is of course Eagle Star Insurance Company Ltd v Green & Anor [2001] EWCA Civ 1389 (8 August 2001) - in this case it was held that only the grantor (borrower) need sign the mortgage deed.

[bhall]

If you are so sure about the basis of your opinion that a mortgage deed that has not been signed by the lender is void, why don't you request a copy of your own mortgage deed and as you have suggested to others

 

Once you have a copy of your mortgage deeds and you are as sure as you can be that your lender has not signed the deed, this link is to the application form required to be completed if you decide to go direct to the Adjudicator at HMLR..:

 

http://www.justice.gov.uk/downloads/forms/tribunals/ahmlr/RectifyOrDocuments.pdf

 

Hope this helps?

 

Applecart

 

 

Then you can report back on CAG if you was successful.

 

I wish you the best of luck in your future endeavors. However, before you recommend or suggest a course of action, such as you have in relation to mortgage deeds, you should really ensure that the argument is tried and tested before you portray it as a matter of fact or as a matter of law rather than just your own untested personal opinion.

 

I hope that my posts have been of assistance to you and others.

[bhall]

2) The only case posted in relation to this topic which is actually about a mortgage deed that has not been signed by the lender is of course Eagle Star Insurance Company Ltd v Green & Anor [2001] EWCA Civ 1389 (8 August 2001) - in this case it was held that only the grantor (borrower) need sign the mortgage deed.

 

This case could reasonably be considerd to be the authority on this matter.

 

In response to the question posed by this thread the answer is no.

Edited April 13, 2013 by bhall

[searching70]

Thanks applecart & bhall for your detailed reply....I am learning a lot on what you have posted and will certainly be digesting it all in.

[bhall]

This raises the question, does the law says that both parties or more specifically does the law say that the lender must sign the mortgage deed.

 

To answer this question, I consider we should look through theThe Regulatory Reform (Execution of Deeds and Documents) Order 2005 as promoted as a source to support the argument that a lender must sign the mortgage deed to see if the law does in fact say that (as it does in terms of contracts s.2 of the lpa mp)

 

I forgot to post the accompanying 'Explanatory Notes" for this order - (they also do not state that both parties or for that matter the lender must sign the deed)

 

 

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 the1925Act, which provides that the deemed execution in favour of a purchaser in section74(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 onbehalf 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

[nomorecrooks]

@searching70:

 

My question exactly!

[nomorecrooks]

@ bhall:

 

Thank you.

 

I take your point entirely.

 

I remain highly suspicious of my lender though less sceptical of its legal position. I have the impression that my lender is somewhat concerned about its own legal position (i do not think I am wishing this, my lender has repeatedly backed down when faced with court {granted it may be nervous of having a wild card judgement against it}).

 

So, my final question: do you think is it possible that lenders consider that the Pender case is not just as solid as we may consider it to be?

 

Many thanks!

[bhall]

@ bhall:

 

Thank you.

 

I take your point entirely.

 

I remain highly suspicious of my lender though less sceptical of its legal position. I have the impression that my lender is somewhat concerned about its own legal position (i do not think I am wishing this, my lender has repeatedly backed down when faced with court {granted it may be nervous of having a wild card judgement against it}).

 

So, my final question: do you think is it possible that lenders consider that the Pender case is not just as solid as we may consider it to be?

 

Many thanks!

 

Good Morning Nomore

 

This is just my personal opinion and not based on any evidence.

 

I think it is like the early days of bank charges refunds. Banks virtually always backed down because they didn't want the risk of going to Court and losing or even worse a precedent being set in a higher Court.

 

However, saying that Pender is not the only case involving a claim by the borrower that mortgage securitisation affects the rights of the Lender. There are some more recent cases (most notably North Irish) that also had the same outcome. There are also some related cases to mortgage securitisation that also express the Courts view that it does not affect the lenders rights.

 

I have posted a list of some cases that if anyone is thinking about challenging mortgage securitisation they should read. I will find the list and post here.