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

[applecart]

Hi there,

 

What if the Deed is acting as a Deed and loan agreement rolled into one?

 

I have a mortgage originally from a lender (securitised and assigned to another lender) where there was never a loan agreement for me and my husband to sign. Only a Deed and a Mortgage Offer (nowhere to sign).

 

The Deed states that on signing we accept the terms and conditions that are stated in the box.

 

I know the mortgage was securitised as have found it in a prospectus online.

 

So where does the lender originate their 'rights' to do anyhting? If it's from acceptance simply of the terms and conditions, we signed the Deed in readiness way before we even saw a copy.

 

Also, if in the abscence of a loan agreement, and the Deed is acting as a bilateral? agreement, should the lender have not signed.

 

On asking the lender, they referred me to the original application form (via broker) and it mentions rights, assignment to third parties etc, however this was an application nothing else and believed this was information was being collected purely for application. Cannot see how or why they would simply be able to tie us into this. Also the lender clearly didn't sign and it wasnt a contract?

 

I am extremely annoyed to find my mortgage has been securitised without my knowledge as this was never my intention to 'contract in' with another party. I feel I was severely misled by the original lender in that they purported to make me believe that I was granting them a Deed and they would be the lender.

 

Any thoughts? Much appreciated. Where does this leave me? A Deed but no loan agreement. This is a residential mortgage taken out in 2006.

 

I also have another mortgage, same lender originally (securitised and sold to a new lender), where I have the identical situation except that the terms and conditons referred to were OUT OF DATE at the time of signing unbeknown to us. This I believe constitutes a mistake in the Deed. I was asked to sign an out of date form of charge, the t and c's had been replaced by a new set (albeit not much different a few changes here and there), neither the solicitor or lender or even LR noticed. They were out of date by about five months.

 

Again exactly same situation, no signed loan agreement etc.

 

Hi WP, apologies for the delay in coming back to you....

 

Take on board that the agreement and the deed can not be tied into one - This would never be the case, they are treated as two separate entities...the agreement is the 'offer' 'consideration' and 'acceptance' and the Deed is the document that acts to convey/transfer the interest in land from the Borrower to the Lender

 

The mortgage offer... i.e the 'agreement' is void because it does not meet section 2 of the LP(MP) Act 1989....because it is not signed by either the lender or the borrower.....The Deed is void because it does not meet LPA 1925 section 52.....however, because it is signed by the Borrower - it's intent is to meet and convey an equitable interest to the lender by virtue of section 53 (1)© LPA 1925.....but.....the crux is this....., put simply, the Judgement in United Kuwait Bank v Sahib.....confirms that - where the underlying 'loan agreement' (mortgage offer) does not meet section 2 LP(MP) Act 1989.....then the Lender cannot rely on the deed for any equitable interest.....that was and is the intended effect of section 2 as outlined in that Judgement....this is because 'part performance' under section 40 LPA 1925 was repealed by the said LP(MP) Act ...

 

I have simplified this response....what you will find is that consumers who take the contention to court - will frame some of what is needed to defeat possession...and are being tripped up left right and centre as a result... for example.... if you plead section 2 and tell a Judge its reference is to the Deed... you will come a cropper.... if you plead say section 53...but do not follow through as to why and how it is relevant in the scheme of things...then you will come a cropper....so knowing the Law and framing the case is where a number of consumers are being tripped up...

 

Then you have a system where...the LP(MP) Act has not been fully updated to include reference to the RRO 2005... and a Land Registry - that has no legal power in relation to the void deeds....an Adjudicator... who in a recent response to an application....has confused a Deed as a CH1 form......not forgetting that there is a whole thread dedicated to whether a lender should sign a deed or not....cor, whatever next.....

 

Anyway... I hope this info helps you... but it's always worth waiting for Ben, he may yet come along and provide you with more info... : )

 

Apple

[Winged Piglet]

Hi WP, apologies for the delay in coming back to you....

 

Take on board that the agreement and the deed can not be tied into one - This would never be the case, they are treated as two separate entities...the agreement is the 'offer' 'consideration' and 'acceptance' and the Deed is the document that acts to convey/transfer the interest in land from the Borrower to the Lender

 

The mortgage offer... i.e the 'agreement' is void because it does not meet section 2 of the LP(MP) Act 1989....because it is not signed by either the lender or the borrower.....The Deed is void because it does not meet LPA 1925 section 52.....however, because it is signed by the Borrower - it's intent is to meet and convey an equitable interest to the lender by virtue of section 53 (1)© LPA 1925.....but.....the crux is this....., put simply, the Judgement in United Kuwait Bank v Sahib.....confirms that - where the underlying 'loan agreement' (mortgage offer) does not meet section 2 LP(MP) Act 1989.....then the Lender cannot rely on the deed for any equitable interest.....that was and is the intended effect of section 2 as outlined in that Judgement....this is because 'part performance' under section 40 LPA 1925 was repealed by the said LP(MP) Act ...

 

I have simplified this response....what you will find is that consumers who take the contention to court - will frame some of what is needed to defeat possession...and are being tripped up left right and centre as a result... for example.... if you plead section 2 and tell a Judge its reference is to the Deed... you will come a cropper.... if you plead say section 53...but do not follow through as to why and how it is relevant in the scheme of things...then you will come a cropper....so knowing the Law and framing the case is where a number of consumers are being tripped up...

 

Then you have a system where...the LP(MP) Act has not been fully updated to include reference to the RRO 2005... and a Land Registry - that has no legal power in relation to the void deeds....an Adjudicator... who in a recent response to an application....has confused a Deed as a CH1 form......not forgetting that there is a whole thread dedicated to whether a lender should sign a deed or not....cor, whatever next.....

 

Anyway... I hope this info helps you... but it's always worth waiting for Ben, he may yet come along and provide you with more info... : )

 

Apple

 

Thank you Apple/Applecart for your overview and comments, they are very interesting indeed. Yes I am struggling to understand why the mysterious Mrsiphone doesn't feel it's quite good 'n proper for me to be on the original thread, I await m'lady's response. I feel like I have been annexed into the servants quarters and not being allowed to mix with the learned gentry! ;-)

[applecart]

LOL.... : )

 

It wouldn't be so bad...except Mrsiphone has not made any contributions on that thread...so to be able to request 'out of the blue' that your post be removed...it just seemed so unfair...

 

How else are you to apply the info and knowledge to your personal situation if you are not 'allowed' to ask questions on a related thread?

 

Here we are now...yet another thread....info that you have gleaned here could have been stated on that thread....it is all relative...instead..Mrsiphone incognito request....puts the whole thread..and info that is more than relative...into 'fragmented' pieces across more than one thread...

 

I'm not having a go...it just seems weird to me

 

I'm hopeful the comments I made, make sense to you.. if not, just ask away : )

 

Apple

[bhall]

http://www.consumeractiongroup.co.uk/forum/showthread.php?391318-IS-IT-ME-and-The-Friend-s-Mortgage&p=4277501&viewfull=1#post4277501

 

The above is a link to a post from a Cagger following his application to the Adjudicator to the land registry

 

well he has had an order from the Property chamber as it is now known and it states; (Going by what he has said over the phone)

The application should be struck out as it has no prospect of succeeding

The LR should be removed as the respondent and the lender be put in its place

the reasons being;

HM is not a party to the charge(we never said they were)

The application is made under sec 108(2) of the LR act (?) 2002.

The tribunal has no power to make an order to alter the register when exercising its jurisdiction under sec 108 (2), it can only rectify or set aside a document under sec 108 (2) and the register of title is not a document for the purpose of that provision.

Charges do not as a matter of law(?) always require execution by the lender as well as the borrower.

The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.

The charge is not in a form showing that it is required to be executed by the lender

The LR form CH1 does not require execution by a lender except where a note on the register of an obligation to make further advances has been applied for.

 

we have 14 days to make representations.

 

I have read and re read the law on this and I can not for the life of me see where this has charged, its not only me reading what I what to read or see what I whant to see but it is there.

So apple any thoughts???

 

I said all a long this will be a fight and very hard to get justice as this was all done behind closed doors.

 

Whilst I am touched by the attention Apple has directed towards me in her most recent posts, I think I am named checked in all of them, I do have to take this opportunity to say sorry but I am happily married - I hope that won't change things between us

 

As Apple has said in the above linked thread, the response from the Adjudicator is very similar to the posts I have repeatedly made over the last few months and I now feel justified in continuing to post on this topic to correct the wrong "advice" and "interpretation" of Applecart. I hope there are no hard feelings Apple the response could not be anymore clearer or contrary to your opinion.

 

It can only be of benefit to all Caggers to receive accurate advise and for any incorrect interpretations to be challenged and corrected.

 

 

 

• Charges do not as a matter of law always require execution by the lender as well as the borrower.
  
• The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.
  
• The charge is not in a form showing that it is required to be executed by the lender
  
• The LR form CH1 does not require execution by a lender except where a note on the register of an obligation to make further advances has been applied for.
  

The above are all points that I have made before, which in your wisdom you dismissed as being incorrect, which have now been proved by the Adjudicator to be correct.

[bhall]

Hi there,

 

What if the Deed is acting as a Deed and loan agreement rolled into one?

 

I have a mortgage originally from a lender (securitised and assigned to another lender) where there was never a loan agreement for me and my husband to sign. Only a Deed and a Mortgage Offer (nowhere to sign).

 

The Deed states that on signing we accept the terms and conditions that are stated in the box.

 

I know the mortgage was securitised as have found it in a prospectus online.

 

So where does the lender originate their 'rights' to do anyhting? If it's from acceptance simply of the terms and conditions, we signed the Deed in readiness way before we even saw a copy.

 

Also, if in the abscence of a loan agreement, and the Deed is acting as a bilateral? agreement, should the lender have not signed.

 

On asking the lender, they referred me to the original application form (via broker) and it mentions rights, assignment to third parties etc, however this was an application nothing else and believed this was information was being collected purely for application. Cannot see how or why they would simply be able to tie us into this. Also the lender clearly didn't sign and it wasnt a contract?

 

I am extremely annoyed to find my mortgage has been securitised without my knowledge as this was never my intention to 'contract in' with another party. I feel I was severely misled by the original lender in that they purported to make me believe that I was granting them a Deed and they would be the lender.

 

Any thoughts? Much appreciated. Where does this leave me? A Deed but no loan agreement. This is a residential mortgage taken out in 2006.

 

I also have another mortgage, same lender originally (securitised and sold to a new lender), where I have the identical situation except that the terms and conditons referred to were OUT OF DATE at the time of signing unbeknown to us. This I believe constitutes a mistake in the Deed. I was asked to sign an out of date form of charge, the t and c's had been replaced by a new set (albeit not much different a few changes here and there), neither the solicitor or lender or even LR noticed. They were out of date by about five months.

 

Again exactly same situation, no signed loan agreement etc.

 

Hello Winged Piglet

 

I am not sure why Applecart has referenced the United Kuwait Bank case (then again I do have that view of most of her posts on this topic these days). As Applecart knows or at least should be aware in that case there was no Mortgage Deed., be it signed by the borrower or otherwise.

 

The United Kuwait Bank, abolished the rule that a mere deposit of title deeds (not mortgage deed Apple) relating to property by way of security created a mortgage or charge. I would say this case it not really all that relevant to your circumstances, as you have confirmed that whilst they was no mortgage agreement, there is a mortgage deed that has been executed by you the borrower.

 

A more relevant case to look at would be Eagle Star Insurance Company Ltd v Green & Anor [2001] EWCA Civ 1389 (8 August 2001)

 

The following extracts, more specifically in bold, highlight the relevance and similarities to your post - being that there was no mortgage agreement and only a mortgage deed that had been executed by the borrower and not by the lender.

 

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.

 

16. In this case, as Mr Green points out, there is no preceding contract for the creation of the mortgage in issue. He draws the conclusion from that that the contract must be in the deed. In my judgment that is a misunderstanding. 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. That is clear. Section 1 refers throughout to deeds, section 2 refers throughout to contracts, clearly recognising that they are two different legal concepts.

 

17. 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. 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. 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."

 

18. He went on to refer to United Bank of Kuwait v Sahib, and correctly concluded that it did not assist Mr Green's case, as it was only concerned with the creation of an equitable charge and there was no deed in that case. I agree with the reasons given by His Honour Judge Jones. It follows that this point would not succeed on an appeal and therefore there is no point in my granting permission to appeal on that point.

 

I hope the above is of interest

 

Ben

Edited July 5, 2013 by bhall

[applecart]

Hi Ben

 

Marriage?.. - no offence but I' m not into men in that way....

 

Can you post a link to the info you reference from the Property Chamber - that will be most useful.

 

Cheers

 

Apple

[applecart]

Oh sorry Ben, you won't be able to post a link to the comments from the 'first-tier Tribunal Property Chamber will you.....

 

That will be because there is no evidence that the 'first-tier Tribunal Property Chamber' said that which you have copied an posted above.....

 

Is It Me stated that the info was taken over the phone, there is no evidence to suggest that the response actually came from the Adjudicator or the First Tier Tribunal Property Chamber (they only got going on the 1st July 2013 Ben,......give them a chance to get their feet under the table before you start making out that they say this or that.....)

 

Up to your old games again - aren't you Ben? : )

 

Apple

[bhall]

Oh sorry Ben, you won't be able to post a link to the comments from the 'first-tier Tribunal Property Chamber will you.....

 

That will be because there is no evidence that the 'first-tier Tribunal Property Chamber' said that which you have copied an posted above.....

 

Is It Me stated that the info was taken over the phone, there is no evidence to suggest that the response actually came from the Adjudicator or the First Tier Tribunal Property Chamber (they only got going on the 1st July 2013 Ben,......give them a chance to get their feet under the table before you start making out that they say this or that.....)

 

Up to your old games again - aren't you Ben? : )

 

Apple

 

Erm Apple, don't you read what people have actually said anymore ???

 

Let me assist you

 

well he has had an order from the Property chamber as it is now known and it states; (Going by what he has said over the phone)

The application should be struck out as it has no prospect of succeeding

The LR should be removed as the respondent and the lender be put in its place

the reasons being;

HM is not a party to the charge(we never said they were)

The application is made under sec 108(2) of the LR act (?) 2002.

The tribunal has no power to make an order to alter the register when exercising its jurisdiction under sec 108 (2), it can only rectify or set aside a document under sec 108 (2) and the register of title is not a document for the purpose of that provision.

Charges do not as a matter of law(?) always require execution by the lender as well as the borrower.

The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.

The charge is not in a form showing that it is required to be executed by the lender

The LR form CH1 does not require execution by a lender except where a note on the register of an obligation to make further advances has been applied for.

 

we have 14 days to make representations.

 

I have read and re read the law on this and I can not for the life of me see where this has charged, its not only me reading what I what to read or see what I whant to see but it is there.

So apple any thoughts???

 

I said all a long this will be a fight and very hard to get justice as this was all done behind closed doors.

 

 

In case you missed it again -

well he has had an order from the Property chamber as it is now known and it states; (Going by what he has said over the phone)

 

Is It Me ? in his post confirmed that it is an order from the Property Chamber (which as you should know is the 'first-tier Tribunal Property Chamber' and now incorporates the Adjudicator of the Land Registry)

 

So contrary to your interpretation that

 

That will be because there is no evidence that the 'first-tier Tribunal Property Chamber' said that which you have copied an posted above.....

 

You will find that there is evidence, as Is It Me? Himself has stated that it was an order of the Property Chamber.

 

http://www.lawgazette.co.uk/news/property-tribunals-combine-new-first-tier-chamber

 

"The First-tier Tribunal Property Chamber – which combines the Residential Property and Agricultural Land Tribunals together with the adjudicator to HM Land Registry – began work today. "

Edited July 5, 2013 by bhall

[citizenB]

Hi CitizenB

 

I hear you.....

 

I humbly request that WP's posts be put back on this thread along with the responses to it.

 

Cheers : )

 

Apple

 

 

 

No problem.. give me a few seconds and will sort it back out.

 

 

Ok, all posts restored to their original location.

Edited July 5, 2013 by citizenB

[applecart]

Erm Apple, don't you read what people have actually said anymore ???

 

Let me assist you

 

 

 

 

In case you missed it again -

 

Is It Me ? in his post confirmed that it is an order from the Property Chamber (which as you should know is the 'first-tier Tribunal Property Chamber' and now incorporates the Adjudicator of the Land Registry)

 

So contrary to your interpretation that

 

 

 

You will find that there is evidence, as Is It Me? Himself has stated that it was an order of the Property Chamber.

 

http://www.lawgazette.co.uk/news/property-tribunals-combine-new-first-tier-chamber

 

"The First-tier Tribunal Property Chamber – which combines the Residential Property and Agricultural Land Tribunals together with the adjudicator to HM Land Registry – began work today. "

 

Of course I read Ben, I read a lot of comments on these threads...but, ...unless Is It Me is willing to post a copy of the decision on the thread... then, with respect to Is It Me and of course yourself....what has been stated so far could be mere 'hearsay'

 

I think to be fair to the Property Chamber - they would or should be appalled to learn or find out that their purported comments fail to reflect the likely response to an application for the setting aside of a Deed and confuse it with an application to set aside a CH1 form - that is just one of the totally fatal errors in the purported response....

 

I am more than aware that Siobhan McGrath was at Alpha Chambers before heading up the Property Chamber - you will find that Alpha Chamber specialise in all things property law related....coming from that background, I would not expect anyone from the Property Chamber to make such infantile errors.....even I with my knowledge of property law - can see through the fatal errors in the alleged response to Is It Me's friends application.....

 

Is It Me is more than able to provide a copy of the decision...as and when it comes we will clarify the position then...until then, I would humbly suggest that you be mindful of your allegations in relation to the Property Chamber as you have....They are Judges you know, they know exactly how to sue you....or worst still.....the CaG....

 

Apple

[applecart]

Thanks CitizenB - much appreciated : )

[bhall]

Of course I read Ben, I read a lot of comments on these threads...but, ...unless Is It Me is willing to post a copy of the decision on the thread... then, with respect to Is It Me and of course yourself....what has been stated so far could be mere 'hearsay'

 

I think to be fair to the Property Chamber - they would or should be appalled to learn or find out that their purported comments fail to reflect the likely response to an application for the setting aside of a Deed and confuse it with an application to set aside a CH1 form - that is just one of the totally fatal errors in the purported response....

 

I am more than aware that Siobhan McGrath was at Alpha Chambers before heading up the Property Chamber - you will find that Alpha Chamber specialise in all things property law related....coming from that background, I would not expect anyone from the Property Chamber to make such infantile errors.....even I with my knowledge of property law - can see through the fatal errors in the alleged response to Is It Me's friends application.....

 

Is It Me is more than able to provide a copy of the decision...as and when it comes we will clarify the position then...until then, I would humbly suggest that you be mindful of your allegations in relation to the Property Chamber as you have....They are Judges you know, they know exactly how to sue you....or worst still.....the CaG....

 

Apple

 

oh boy

 

my allegations ??? lol I would be more mindful of your self proclaimed knowledge and advice.

 

Come now Apple, I expected more from you.

 

So now because the response from the Adjudicator is contrary to what you have been claiming for so long, you now want to put a spin on the order as you have done previously with case law and legislation.

 

Strange that you did not claim Is It Me? was making accusations when he first posted about the order.

 

I am disappointed with your reaction to the order, especially as it was obtained following your advice, with the knowledge you claim to have.

 

#disappointedwithapple

 

Now let's not make this personal Apple, you had one opinion and I had a different one. On this occasion mine has turned out to be exactly the same (as you have joked) as that of the first-tier Tribunal Property Chamber.

 

If the site team consider my 'allegations' as you have put it, to be something that may result in legal action against CAG, I am sure they will remove any such posts at their convenience.

Edited July 5, 2013 by bhall

[bhall]

When I started this thread, I asked:

 

 

Basically the question is -

 

For a mortgage deed to be valid and enforceable in possession proceedings does it have to be signed by the lender ?

 

The answer to that question has now been provided by the first-tier Tribunal Property Chamber - In response to an application -

 

 

 

 

• Charges do not as a matter of law always require execution by the lender as well as the borrower.
  
• The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.
  
• The charge is not in a form showing that it is required to be executed by the lender
  
• The LR form CH1 does not require execution by a lender except where a note on the register of an obligation to make further advances has been applied for.
  

 

The answer to my question is therefore very clear, according to the first-tier Tribunal Property Chamber the answer is NO, unless, as I have previously posted it includes an obligation to make a further advance.

[applecart]

oh boy

 

my allegations ??? lol I would be more mindful of your self proclaimed knowledge and advice.

 

Come now Apple, I expected more from you.

 

So now because the response from the Adjudicator is contrary to what you have been claiming for so long, you now want to put a spin on the order as you have done previously with case law and legislation.

 

Strange that you did not claim Is It Me? was making accusations when he first posted about the order.

 

I am disappointed with your reaction to the order, especially as it was obtained following your advice, with the knowledge you claim to have.

 

#disappointedwithapple

 

Now let's not make this personal Apple, you had one opinion and I had a different one. On this occasion mine has turned out to be exactly the same (as you have joked) as that of the first-tier Tribunal Property Chamber.

 

If the site team consider my 'allegations' as you have put it, to be something that may result in legal action against CAG, I am sure they will remove any such posts at their convenience.

 

Ok Ben..... I hear you...I would never fall out with you.... I smile every time you come back on the CaG.. : )

 

It's like this Ben... on a serious note... if you look at my responses to Is It Me...

 

We need to view the information from the application made....

 

There are areas within the response from the post that don't make sense... I'm looking at the response as stated closely to gauge where it is that the application failed to make the necessary points... for some of the responses just simply don't add up I'm afraid...it maybe that Is It Me did not frame the application to best effect... It truly needs to be looked at...

 

For example: where it is said that the Adjudicator does not 'alter' the register under section 108 (2)... it could be that Is It Me failed to point to LRA 2002 Schedule 4....

 

On the Other hand....The Adjudicator makes reference to a CH1 document...when Is It Me advises that he made no such reference to a CH1...so, why would the Adjudicator make reference to it????

 

and so on and so on....

 

So, you have to forgive me... but, I simply don't see that what you say is and can be the be all and end all of this matter...

 

Apple

[bhall]

Ok Ben..... I hear you...I would never fall out with you.... I smile every time you come back on the CaG.. : )

 

It's like this Ben... on a serious note... if you look at my responses to Is It Me...

 

We need to view the information from the application made....

 

There are areas within the response from the post that don't make sense... I'm looking at the response as stated closely to gauge where it is that the application failed to make the necessary points... for some of the responses just simply don't add up I'm afraid...it maybe that Is It Me did not frame the application to best effect... It truly needs to be looked at...

 

For example: where it is said that the Adjudicator does not 'alter' the register under section 108 (2)... it could be that Is It Me failed to point to LRA 2002 Schedule 4....

 

On the Other hand....The Adjudicator makes reference to a CH1 document...when Is It Me advises that he made no such reference to a CH1...so, why would the Adjudicator make reference to it????

 

and so on and so on....

 

So, you have to forgive me... but, I simply don't see that what you say is and can be the be all and end all of this matter...

 

Apple

 

Hi Apple

 

I have read the points you have made on Is It Me?'s thread in response to the order. However, even taking them into account the points made by the first-tier Tribunal Property Chamber- being

 

• Charges do not as a matter of law always require execution by the lender as well as the borrower.
  
• The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.
  
• The charge is not in a form showing that it is required to be executed by the lender
  

Are quite clear in relation to the requirement as you have argued that if the lender does not sign the deed, it is void, not being the case. It does not appear to be vague or possible to reach any other reasonable conclusion.

 

In terms of the CH1 form, I can only guess as to the reference. However, it could have been used as an example of the Land Registry's own deed not requiring the signature of the lender unless there is an obligation to provide a further advance. As you know I have previously this fact about the CH1.

 

http://www.landregistry.gov.uk/_media/downloads/forms/CH1.pdf

 

Re: Section 10

 

The borrower must execute this charge as a deed using the space opposite. If there is more than one borrower, all must execute. Forms of execution are given in Schedule 9 to the Land Registration Rules 2003. If a note of an obligation to make further advances has been applied for in panel 8 this document must be signed by the lender or its conveyancer

 

If there is no obligation to provide a further advance, the lender is not required to sign the CH1 - this principle would equally therefore apply to 'approved' mortgage deeds.

 

 

Sorry Ben

Edited July 6, 2013 by bhall

[Winged Piglet]

Hello Winged Piglet

 

I am not sure why Applecart has referenced the United Kuwait Bank case (then again I do have that view of most of her posts on this topic these days). As Applecart knows or at least should be aware in that case there was no Mortgage Deed., be it signed by the borrower or otherwise.

 

The United Kuwait Bank, abolished the rule that a mere deposit of title deeds (not mortgage deed Apple) relating to property by way of security created a mortgage or charge. I would say this case it not really all that relevant to your circumstances, as you have confirmed that whilst they was no mortgage agreement, there is a mortgage deed that has been executed by you the borrower.

 

A more relevant case to look at would be Eagle Star Insurance Company Ltd v Green & Anor [2001] EWCA Civ 1389 (8 August 2001)

 

The following extracts, more specifically in bold, highlight the relevance and similarities to your post - being that there was no mortgage agreement and only a mortgage deed that had been executed by the borrower and not by the lender.

 

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.

 

16. In this case, as Mr Green points out, there is no preceding contract for the creation of the mortgage in issue. He draws the conclusion from that that the contract must be in the deed. In my judgment that is a misunderstanding. 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. That is clear. Section 1 refers throughout to deeds, section 2 refers throughout to contracts, clearly recognising that they are two different legal concepts.

 

17. 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. 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. 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."

 

18. He went on to refer to United Bank of Kuwait v Sahib, and correctly concluded that it did not assist Mr Green's case, as it was only concerned with the creation of an equitable charge and there was no deed in that case. I agree with the reasons given by His Honour Judge Jones. It follows that this point would not succeed on an appeal and therefore there is no point in my granting permission to appeal on that point.

 

I hope the above is of interest

 

Ben

 

Thank you Ben for all of that information. So basically my instinct originally was right, that there must be a signed contract by both parties and the Deed cannot act as both.

 

My Deed states 'THAT THE BORROWER (S) ACKNOWLEDGES RECEIPT OF THE LOAN'

 

Well this was signed many months in preparation long before we received the Loan? Is this just standard stuff as it is dated on completion by the solicitor? Our signatures are not dated nor those of the witnesses. Seems to me very misleading, that I am signing for something and acknowleding not just that they will LEND but that I at that very early stage ACKNOWLEDGE RECEIPT OF THE LOAN? It's all done in the guise of here and now present timing not in the future which was the reality.

 

In my case, the Mortages Conditions refererred to are the wrong ones anyhoo! Yet the Lender did not spot, the Solcitor did not spot and apparently nether did LR as it's registered and they did do using the Lenders approved form of charge which was out of date by a couple of months?

 

So could I go off to the Adjudicator and ask them to remove as it's wrong/void? or clearly it needs rectifying as per their Pracice Guidelines BUT can't see how I can do this as the original Mortgage Lender sold on via securitisation and current owner is not FSA/FCA accredited. So if the Charge is removed as the Deed is incorrect and therefore void, the Lender (bless'em) will want a fresh new Deed to create a fresh new charge all tickety boo and tidy! However, I don't want to do this as

 

a) I don't wish to as livid my mortgage is securitised.

b) original lender is no longer lending

c) why should I?

d)how can I possibly legally grant or amend a Deed or create a new Deed when the Mortgage has been sold via securitisation? Goes from Original Lender TO New Lender TO SPV

e) who would I if it were possible be granting a new Deed to? who would I if it were possible grant a Deed of Variation to?

f) there is no signed contract Mortgage Offer (nowhere to sign) and no signed Loan Agreement for the basis for the Deed.

g) the original lender has sold on their beneficial interest and had the benefit of all monies of the Mortage already, so why or what interest of benefit am I protecting by granting a new Deed?

 

Does the Adjudicator have the power to set aside a Charge on the register as the Deed used to effect it is void by way of reference to wrong terms and conditions for the Mortgage? If the Charge created by the faulty Deed is set aside/removed, can I be forced by the Lender of the Adudicator to grant another or is it tough luck to Lender?

 

ALSO if a Deed states, 'THIS DEED IS MADE FOR SECURING FURTHER ADVANCES' does the lender have to sign in this instance?

 

It doesn't say there is an Obligation in the wording so must it do so to then to constitute a need for the Lender to sign?

 

Interestingly, I have looked at another person's Deed where it does say exactly that and also asks that there is a note made in the register to that effect.

 

However this Deed is on an approved form of charge and hadn't been signed by the Lender, but the LR have filed it and registered it anyway. I notice that on their CH1 form ( had the Lender not submitted an approved form of charge) that it clearly states on this form that in the case of obligations to secure further advances, it does need to be signed.

 

So in this instance has the LR made a mistake on registering it unsigned by the lender, OR is it the Lender's fault for submitting it unsigned as the template for the charge had been approved already?

 

Yours and Apple's comments would be much appreciated thanks

[bhall]

Thank you Ben for all of that information. So basically my instinct originally was right, that there must be a signed contract by both parties and the Deed cannot act as both.

 

My Deed states 'THAT THE BORROWER (S) ACKNOWLEDGES RECEIPT OF THE LOAN'

 

Well this was signed many months in preparation long before we received the Loan? Is this just standard stuff as it is dated on completion by the solicitor? Our signatures are not dated nor those of the witnesses. Seems to me very misleading, that I am signing for something and acknowleding not just that they will LEND but that I at that very early stage ACKNOWLEDGE RECEIPT OF THE LOAN? It's all done in the guise of here and now present timing not in the future which was the reality.

 

In my case, the Mortages Conditions refererred to are the wrong ones anyhoo! Yet the Lender did not spot, the Solcitor did not spot and apparently nether did LR as it's registered and they did do using the Lenders approved form of charge which was out of date by a couple of months?

 

So could I go off to the Adjudicator and ask them to remove as it's wrong/void? or clearly it needs rectifying as per their Pracice Guidelines BUT can't see how I can do this as the original Mortgage Lender sold on via securitisation and current owner is not FSA/FCA accredited. So if the Charge is removed as the Deed is incorrect and therefore void, the Lender (bless'em) will want a fresh new Deed to create a fresh new charge all tickety boo and tidy! However, I don't want to do this as

 

a) I don't wish to as livid my mortgage is securitised.

b) original lender is no longer lending

c) why should I?

d)how can I possibly legally grant or amend a Deed or create a new Deed when the Mortgage has been sold via securitisation? Goes from Original Lender TO New Lender TO SPV

e) who would I if it were possible be granting a new Deed to? who would I if it were possible grant a Deed of Variation to?

f) there is no signed contract Mortgage Offer (nowhere to sign) and no signed Loan Agreement for the basis for the Deed.

g) the original lender has sold on their beneficial interest and had the benefit of all monies of the Mortage already, so why or what interest of benefit am I protecting by granting a new Deed?

 

Does the Adjudicator have the power to set aside a Charge on the register as the Deed used to effect it is void by way of reference to wrong terms and conditions for the Mortgage? If the Charge created by the faulty Deed is set aside/removed, can I be forced by the Lender of the Adudicator to grant another or is it tough luck to Lender?

 

ALSO if a Deed states, 'THIS DEED IS MADE FOR SECURING FURTHER ADVANCES' does the lender have to sign in this instance?

 

It doesn't say there is an Obligation in the wording so must it do so to then to constitute a need for the Lender to sign?

 

Interestingly, I have looked at another person's Deed where it does say exactly that and also asks that there is a note made in the register to that effect.

 

However this Deed is on an approved form of charge and hadn't been signed by the Lender, but the LR have filed it and registered it anyway. I notice that on their CH1 form ( had the Lender not submitted an approved form of charge) that it clearly states on this form that in the case of obligations to secure further advances, it does need to be signed.

 

So in this instance has the LR made a mistake on registering it unsigned by the lender, OR is it the Lender's fault for submitting it unsigned as the template for the charge had been approved already?

 

Yours and Apple's comments would be much appreciated thanks

 

Hello

 

You have a few questions related to the deed and to securitisation, to give you accurate answers, it will require a little time and more information.

 

If we first start with your Deed. From what you have said, it sounds very similar to the one used by Kensington.

 

This is a link to Kensington's, can you please confirm if the content is the same as the one, you signed.

 

http://www.kmc.co.uk/content/dam/kmc/documents/Literature/Intermediary/EnglandAnd%20WalesSolicitorsPack1.pdf

 

The above linked deed also states -

 

"acknowledge(s) receipt of the Loan"

 

and

 

"is made for securing Further Advances and re-advances"

 

 

Could you also confirm, what is if you don't mind, you want to achieve ? I just want to know, if the answers I give are ones you want to hear. (apologies if that sounds rude or causes any offense)

Edited July 6, 2013 by bhall
typos -

[Winged Piglet]

Ben, thank you for your swift reply.

 

The Deed from Kensingon is similar but not the same. The original lender was GMAC. My Deed says;-

 

1. The Borrower(s) (i) acknowledges receipt of the Loan

(ii) with full title guarantee, charge(s) the Property by way of Legal mortgage with the payment as defined in the Mortgage Conditions 2005

 

2. This Deed (i) incorporates the Mortgage Conditions 2005 and the Borrower (S) acknowledge(S) receipt of a copy thereof

(ii) is made for securing further advances

 

3. The Borrower (s) and the Company hereby apply to the Chief Land Registrar to enter on the Register a restriction that:No disposition of the registered estate by the proprietor of the registered estate is to be registered withouta written consent signed by the proprietor for the time being of the charge dated (date) in favor of the Company referred in the Charges registered.

 

SIGNED AS A DEED BY THE BORROWER(S) IN THE PRESCENCE OF THE WITNESS (ES) NAMED BELOW.

 

I am hoping to achieve removing the Charge from the register as the Deed used to do so is flawed as per the LR Practice guidelines. I also have no signed Loan Agreement so am wondering how they managed to sell on their 'rights' to do so and any benefit when it maybe doubtful that they have any in the first place. I have taken this up with the new lender and they refer me to the Application form regarding rights to assign etc which is nonsense, the application form was signed.I believe that they believe that the mere fact that the Charge is registered at the LR seems enough for them to rest on. I have asked them repeatedly who the true owner of the Mortgage debt is and they repeat that it is them as they own the Legal Tile but admit to selling the Beneficial Interest on.

Edited July 6, 2013 by Winged Piglet

[bhall]

I am hoping to achieve removing the Charge from the register as the Deed used to do so is flawed as per the LR Practice guidelines.

 

Thank you for responding, so that I am clear which guidelines are you referring too ?

 

08 deals with the execution of deeds and 29 with the registration of legal charges and deeds of variation.

 

Could you also confirm what you mean by 'true owner', I know this sounds like a play on words but there are different types of ownership - Is it the party that can instigate proceedings you wish to identify ?

 

Could you confirm if you have ever received an express notice to inform you that your mortgage has been sold or if the charges register has been amended ?

 

If you can confirm the name of the SPV, I will see if I can find the applicable Mortgage Sale Agreement

Edited July 6, 2013 by bhall

[bhall]

Sorry another question just occurred to me

 

Are the mortgage conditions you received, the same as those referred to in the mortgage deed

 

Thanks

 

Ben

[Winged Piglet]

Thank you for responding, so that I am clear which guidelines are you referring too ?

 

08 deals with the execution of deeds and 29 with the registration of legal charges and deeds of variation.

 

Could you also confirm what you mean by 'true owner', I know this sounds like a play on words but there are different types of ownership - Is it the party that can instigate proceedings you wish to identify ?

 

Could you confirm if you have ever received an express notice to inform you that your mortgage has been sold or if the charges register has been amended ?

 

If you can confirm the name of the SPV, I will see if I can find the applicable Mortgage Sale Agreement

 

Hi Ben,

 

Practice Guides 39 and 68

 

By True Owner I mean the true owner of the mortgage debt i.e. who do I 'owe' the 'contractual' payments to and if I redeem the mortgage debt, to whom do I owe this money. The pretend lender is the administrator so why should I pay it to them?

 

I received a letter telling me that my mortgage had been transferred to this new owner i.e. the name of the administrator/legal title owner. The charges register has been updated with the new lenders name.

 

I am not in arrears or fear of reposession however on discovering that my mortgage had been securitised, they refused to admit it and curtly told me that it was nothing to do with me. I questioned the lack of the agreement and they referred me to the application form ( which does go on and on about assignment of rights etc BUT it was just an application, it's purpose to collect information in order for the original lender to make a decision to lend etc and was signed by myself and husband but not lender and was conduced via a broker. It can't also bind us to something that we haven't even been given or given consideration for yet.

 

Will have to find the name of the SPV as mysteriously the prospectus has been taken off from access online.

[bhall]

Hello

 

Ok..

 

I have a feeling the answers that I can give are not the ones that you want to hear.

 

In terms of your comments about securitisation, I would direct you to:

 

paragon v pender 2003 2005,

Bank of Scotland Plc v McGuigan,

Wellstead -v- Judge White & Anon,

Santander UK Plc v Harrison

Paratus AMC Ltd & Anor v Countrywide Surveyors Ltd [2011],

Southern Pacific Personal Loans Ltd v Walker & Anor [2009],

Southern Pacific Securities 05-2 Plc v Walker & Anor [2010]

 

Closer inspection of the last two cases will show that the first involved the lender (SPPL) and the second involved the SPV (SPS 05-2) - notices of the change of ownership were provided to SPPL borrowers and the land registry was also updated to reflect the change from SPPL to SPS 05-02.

 

After reading some of the threads on CAG securitisation, much like now about deeds, has been debated to death.

 

My view is that the party registered on the charges register at the land registry has the power of possession. As a borrower myself, I am only worried about the party that can repossess my home.

 

Therefore, I would say that party is the legal owner - being they own the legal title and not necessarily the equitable / beneficial title.

 

I say this because, as per one of the Judgements from Pender:

 

"In my judgment 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."

Edited July 6, 2013 by bhall

[bhall]

Hi Ben,

 

Practice Guides 39 and 68

 

By True Owner I mean the true owner of the mortgage debt i.e. who do I 'owe' the 'contractual' payments to and if I redeem the mortgage debt, to whom do I owe this money. The pretend lender is the administrator so why should I pay it to them?

 

I received a letter telling me that my mortgage had been transferred to this new owner i.e. the name of the administrator/legal title owner. The charges register has been updated with the new lenders name.

 

I am not in arrears or fear of reposession however on discovering that my mortgage had been securitised, they refused to admit it and curtly told me that it was nothing to do with me. I questioned the lack of the agreement and they referred me to the application form ( which does go on and on about assignment of rights etc BUT it was just an application, it's purpose to collect information in order for the original lender to make a decision to lend etc and was signed by myself and husband but not lender and was conduced via a broker. It can't also bind us to something that we haven't even been given or given consideration for yet.

 

Will have to find the name of the SPV as mysteriously the prospectus has been taken off from access online.

 

Practice guide 39 refers to rectification and indemnity, whereas, Practice Guide 68 refers to amending deeds that effect dispositions of registered land.

 

Could you clarify, so that I understand you fully why the deed is flawed as a result of those two practice guides.

[bhall]

I am hoping to achieve removing the Charge from the register as the Deed used to do so is flawed as per the LR Practice guidelines. I also have no signed Loan Agreement so am wondering how they managed to sell on their 'rights' to do so and any benefit when it maybe doubtful that they have any in the first place. I have taken this up with the new lender and they refer me to the Application form regarding rights to assign etc which is nonsense, the application form was signed.I believe that they believe that the mere fact that the Charge is registered at the LR seems enough for them to rest on. I have asked them repeatedly who the true owner of the Mortgage debt is and they repeat that it is them as they own the Legal Tile but admit to selling the Beneficial Interest on.

 

Hello WP

 

After some thought, I don't think there is anything beneficial or even constructively that I can advise, to assist you in reaching your goal, based on what you have posted and the findings of the case law posted in terms of the deed and securitisation.

 

Therefore, I will leave it to Apple

 

Sorry

 

Ben

[Winged Piglet]

Practice guide 39 refers to rectification and indemnity, whereas, Practice Guide 68 refers to amending deeds that effect dispositions of registered land.

 

Could you clarify, so that I understand you fully why the deed is flawed as a result of those two practice guides.

 

Ben from guide 68 it says the following:-

 

3.1.3 Examples of circumstances where original deed requires amendment

 

3.1.3.1 Deed contains incorrect terms

 

Example 1: A deed effecting a legal charge over title XY1234 in favour of the Anywhere Building Society has been executed by the registered proprietors as borrowers but the parties now realise that it refers erroneously to the society's 2004 mortgage conditions whereas it should have referred to the society's 2008 mortgage conditions (as set out in the mortgage offer issued to the borrowers). Since the charge creates a valid charge over the title (albeit by reference to the wrong mortgage conditions) it can be lodged for registration and a request made for its temporary return so that it can be suitably amended, the amendment countersigned by the borrowers and re-lodged for the registration to be completed.

 

My Deed refers to out of date terms and condiitons and were not the terms and conditions associated with the Mortgage Offer. The new owner/pretend lender has clarified that the terms and conditions appearing on the Deed are not those of my Mortgage. as the copy associated are the updated version and reference a different year.They say it's immaterial as they have changed little since being updated. This error is identical to the one stated in Practice Guide 68.

 

However,

 

The Deed granting the charge was registered years ago. So the guide says:-

 

5 Where the original deed has been registered

 

5.1 General principles

 

Deeds that effect registrable dispositions, such as transfers, leases and legal charges of registered titles, must be completed by registration if the relevant legal estate or interest is to become vested in the person in whose favour the deed takes effect. Until application is made to register the disposition and the application is completed so that the relevant entries are made in the register, the deed confers at best an equitable interest in the land. Once the register has been changed to give legal effect to a registrable disposition and reflect the information contained in the deed, it records the existence of the relevant registered estates, charges and legal interests that subsist and the identity of the persons in whom, as registered proprietors, the estates and charges are vested. It follows that, if a further disposition of the land in a registered title is needed, this needs to be achieved by means of a further registrable deed. This principle applies as much to the case where a further disposition is needed to correct a mistake in an original deed that has already been registered as it does to further independent transactions.

 

In addition, s.25, LRA 2002 provides that:

 

“A registrable disposition of a registered estate or charge only has effect if it complies with such requirements as to form and content as rules may provide.”

 

For the purpose of this guide, the importance of this provision is that, if a registrable disposition is required in order to achieve the correction or amendment of an original deed that has already been registered, then that further registrable disposition must comply with any applicable requirements of the LRR 2003 relating to the form and content of the disposition. See further sections 5.2 Transfers – incorrect extent transferred and 5.3 Transfers – correct extent transferred but other provisions in the transfer require amendment as to the consequences of this in relation to original transfers that need to be corrected or amended and sections 5.4 Leases – incorrect extent or term demised and 5.5 Leases – correct extent and term demised but other provisions require amendment as to the consequences in relation to original leases that need to be corrected or amended.

 

The new owner of the Mortgage is in itself an SPV and then farms out it's admin of the mortgage ( as it is prevented by FSA/FCA) to another who also appears on the Securitisation agreements as the principle adminstrator. The owner of the Mortgage who bought it from GMAC then sold the rights of the Beneficial Interest to another SPV. That's what I believe but need to access another copy and can tell you the name of the Beneficial Interest holder stated on it.