Author Topic: UK Mortgages: Definitive Case Law  (Read 25140 times)

M O'B

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UK Mortgages: Definitive Case Law
« on: February 08, 2011, 02:48:38 PM »
Below are the relevant sections from the 1996 Court of Appeal decsion in UBK v Sahib & others, which demonstrate beyond doubt that in the absence of a mortgage contract that contains all of the terms and conditions of the agreement and the signatures of both the mortgagor [the alleged borrower] and the mortgagee [the alleged lender], pursuant to section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 and the authorities given below, no charge against the mortgagor’s property can be legally enforced.

http://freetheplanet.net/articles/187/uk-mortgages-definitive-case-law-new-post

This landmark case is a vindication of all administrative processes that demand production of an enforceable bilateral contract signed by both parties, without which, the bankster has no lawful claim over the mortgagor's property, since the mere deposit of title deeds with the land registry can no longer be accepted by the courts as a contract for the sale and/or disposition of an interst in land, notwithstanding the continued common practice of the lower courts.

I am currently involved in two High Court cases that will be relying upon this judgment in support of claims against a couple of mortgage bandits for negligent misrepresentation [easier to prove than fraud]. Should the judgments be given in our favour, we will seek a judicial declaration that no more property can be seized by the banksters unless they can produce a mortgage contract that complies with section 2 of the 1989 Act and that all legal charges registered with the Land Registry without an enforceable contract are considered null and void in law.

Namaste
« Last Edit: February 09, 2011, 02:12:23 PM by Michael of Bernicia »
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M O'B

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Re: UK Mortgages: Definitive Case Law
« Reply #1 on: February 09, 2011, 11:50:02 PM »
From the Times Law Report on the case:

Quote
The judge had correctly concluded (at p 110) that the courts had consistently treated the rule that a deposit of title deeds for the purpose of securing a debt operated, without more, as an equitable mortgage or charge as contract-based, and the courts were concerned to establish, by presumption, inference or evidence, what the parties intended, and then to enforce their common interest as an agreement.

His Lordship emphasised the essential contractual foundation of the rule as demonstrated in the authorities, more recently in In re Wallis & Simmonds (Builders) Ltd ((1974) 1 WLR 391) and In re Alton Corporation ((1985) BCLC 27).

The deposit by way of security was treated as prima facie evidence of a contract to mortgage, and as part performance of that contract equity regarded that as done which ought to be done.

Mr Pymont submitted, inter alia:
1 That nothing in the 1989 Act expressly or by necessary implication repealed the 1925 Act and later legislation recognising and extending the scope of a security by deposit of title deeds. He drew attention to modern commentators’ conclusions that section 2 was not intended to repeal the rule: see Snell’s Equity (29th edition (1990) pp 444–445); Cheshire and Burn’s Modern Law of Real Property (15th edition (1994) p 670) and “Informed dealings with land after section 2” Bently and Coughlan ((1990) 10 Legal Studies p 325, 341). His Lordship differed with reluctance from such distinguished lawyers but was not persuaded their views were correct. The citation and reference to earlier legislation was now subject to and in the light of the 1989 Act. The new formalities required by section 2 governed all dispositions of interests in land. 2 There was nothing in the Law Commission’s report to suggest that security by deposit of title deeds was intended to be affected or was even considered. His Lordship said that the inclusion of contracts to grant mortgages in the report’s proposals was made plain in paragraph 4.3, and as security by deposit of title deeds took effect as an agreement to mortgage, in logic there was no reason why security by deposit of title deeds should have been excepted from the proposals. In any event, if the wording of section 2 was clear, as his Lordship believed it was, the absence from the report of a reference to security by deposit of title deeds could not alter the section’s effect. 3 That the rule that a deposit of title deeds created a mortgage was not dependent on any actual contract between the parties, although, if there was one, that contract would govern the parties’ rights. It had to comply with section 2 but that did not affect the legal presumptions or inferences which arose when there was a mere deposit.

His Lordship said that it was clear from the authorities that the deposit was treated as rebuttable evidence of a contract to mortgage. To allow inquiries, such as evidence to establish whether or not a deposit was intended to create a mortgage security over the land and whether or not the original deposit was intended at the outset to be security for further advances, after the 1989 Act was quite inconsistent with section 2, requiring as it did that the contract be made by a single document containing all the terms of the agreement if it was to be valid.

It seemed clear that the deposit of title deeds took effect as a contract to mortgage and fell within section 2. His Lordship agreed with the judge below (at p 111) that the Law Commission’s recommendation that contracts relating to land should be incorporated in a signed document containing all the terms was clearly intended to promote certainty, and that the new legislation was likely to have the effect of avoiding disputes on oral evidence as to the obligation which the parties intended to secure.

Therefore, by reason of section 2, the deposit of title deeds by way of security could not give a mortgage or charge.

Lord Justice Phillips gave a concurring judgment and Lord Justice Leggatt agreed with both.

Solicitors: Radcliffes & Co; Clyde & Co.

Copyright © Times Newspapers Ltd 1996

http://freetheplanet.net/articles/188/-sahib-times-law-report-new-post

Namaste
« Last Edit: February 09, 2011, 11:56:11 PM by Michael of Bernicia »
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M O'D

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Re: UK Mortgages: Definitive Case Law
« Reply #2 on: February 10, 2011, 01:54:44 AM »
Quote
Therefore, by reason of section 2, the deposit of title deeds by way of security could not give a mortgage or charge.

Lord Justice Phillips gave a concurring judgment and Lord Justice Leggatt agreed with both.

Once one wades through the legalese, this emerges as an astonishing find - it makes one wonder just wtf has been going on in the legal world for the best part of the 15 years since the ruling?
Is it cognitive dissonance on behalf of the court officials, the barristers and other legal beavers?
Why has it taken a researcher from outside the 'profession' to unearth this?
Has nobody in the Bar spotted this before?
If someone has, why isn't being enforced more widely?
Why don't the judges seem to know of this? Or maybe they do  ;) ?
Could it be their pension funds are linked to the mortgage backed securities market  ::)?
Have the banks been 'buying' the silence of the Bar (Baa Baa Lambs)  :o ?
Is the legal profession really a bunch of obsequious self-serving charlatans whose low levels of enquiry and discernment and lack of critical thinking skills is just what the dumbed down public deserve?
Does that dumbed down and brainwashed obfuscation not inflict us all?
Isn't it time we all stopped trying to shaft each other in the name of pieces of paper marked £ and $?


Who knows, who knows?

Well, now we do, eh?

Spread the word. . .

Salutations and much love to thee my brother - a brilliant find

N a m a s t e




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mescalito

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Re: UK Mortgages: Definitive Case Law
« Reply #3 on: February 11, 2011, 08:47:10 AM »
Nice one Michael, again you exceed everyone's efforts to try and bring order out of chaos.

you the man!

safety and peace be with you all.

Monkeyman

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Re: UK Mortgages: Definitive Case Law
« Reply #4 on: February 11, 2011, 11:24:50 AM »
Very well put Mescalito
 love n light to all  :)
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it's the intent with which you do it....

M O'B

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Re: UK Mortgages: Definitive Case Law
« Reply #5 on: March 11, 2011, 09:01:54 AM »
THE ENFORCEABILITY AND UNENFORCEABILITY OF CHARGES OVER LAND

A lecture given on the  by EDWIN JOHNSON QC of Maitland Chambers, on 22nd June 2009:

http://freetheplanet.net/articles/194/unenforceable-charges-new-post

Pay particular attention to the sections relating to the following:

1. The Unfair Terms in Consumer Contracts Regulations 1999.
2. The Regulatory Reform (Execution of Deeds and Documents) Order 2005.
3. The Law of Property (Miscellaneous Provisions) Act 1989.
4. The Law of Property Act 1925.
5. Clogs in the Equity of Redemption.

Namaste
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M O'D

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Re: UK Mortgages: Definitive Case Law
« Reply #6 on: March 11, 2011, 08:06:36 PM »
Now, how much clearer does it need to be?

Quote
4.3 A contract to create an equitable charge can take effect as an equitable charge, but here a further difficulty intrudes. Such a contract must comply with the requirements of Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. This means a written document or an exchange of documents incorporating all of the terms of the contract signed by or on behalf of both parties. Indeed it is for this reason that the good old days of creating a mortgage or charge by deposit of title deeds are well and truly behind us; see United Bank of Kuwait v Sahib [1997] Ch 107, as upheld in the Court of Appeal under the same reference. As Chadwick J., as he then was, pointed out in his judgment at first instance in that case, the basis of the creation of a mortgage or charge by the deposit of title deeds was contractual. As such this method of creating a security, by the deposit of title deeds, was caught and rendered void by Section 2 of the 1989 Act.
4.4 In the absence of a piece of paper the options available to a party trying to claim an equitable charge over land are limited. It may be that such a charge can be claimed by means of a resulting, implied or constructive trust. There is also the possibility of claiming such a charge on the basis of proprietary estoppel. Neither trust nor estoppel is an easy route. A claim to an equitable charge on the basis of trust or estoppel, particularly in the commercial context, is likely to run into the sort of difficulties which did for the claimant in Cobbe v Yeoman’s Row Management Ltd [2008] 1 WLR 1752. A full examination of this case, and its implications for the doctrine of proprietary estoppel is the subject matter of another lecture in this years series of Blundells Lectures.

Makes one wonder just wtf is really going on in the Legal world...?

Our gratitude extends like long tentacles of loving octopi to the "maverick Geordie genius", as he is sometimes known in certain parts of Albion . . .

n a m a s t e
 8)
 
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M O'B

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Re: UK Mortgages: Definitive Case Law
« Reply #7 on: March 18, 2011, 12:19:49 AM »
The Case for the Mortgagors of the Bank of Despotland:

http://freetheplanet.net/articles/195/the-mortgagors-claim-new-post

Namaste
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M O'D

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Re: UK Mortgages: Definitive Case Law
« Reply #8 on: March 18, 2011, 09:28:35 PM »
One is reminded of the old chant, "Here we go, here we go, here we go!"

The circle is complete - one finds oneself in the position from which it all began - material evidence demonstrating adequate assurance of due performance -

Specifically -
1. Material evidence demonstrating how the alleged loan was created
2. Consideration - as opposed to a mere extension of credit based upon a note created by our signature(s) ie an unbeknownst 'gift' from the Man to the Bank.
3. A bilateral contract signed by all parties, not only the creditor (us)
4. Full Disclosure -  evidence of fair terms and conditions - especially the fact that the bank failed to disclose how it created the 'money' in the first instance through the signature of the creditor

The abject failures of the Banksters' performances, the associated lies, the deceptive practices and the sheer greed pervading it all, is layed bare for all to see. . . as is the shameful part of the legal profession which has been unable or is unwilling to zoom out and apply the levels of critical thinking, applied legal research and cognizance demonstrated by the one commonly known as michael.

Sir, you have given birth to something of great significance. A wonderful distillation that may well prove a brew too strong for the banksters, who may not have seen this coming . . . Wholly hole y holy - here we go.

Excellent, my friend, simply excellent


Who's up for the ride?  http://thinkfree.org.uk/forum/index.php?topic=1347.0
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goldy36

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Re: UK Mortgages: Definitive Case Law
« Reply #9 on: March 30, 2011, 06:39:29 PM »
Fascinating stuff. Thanks for this.

What was the case number of this case and/or the parties involved? I would really like to read all of it. That is the Mortgagor's case - http://freetheplanet.net/articles/195/the-mortgagors-claim-new-post


Thanks.
Amanda
« Last Edit: March 30, 2011, 09:14:37 PM by goldy36 »

M O'B

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Re: UK Mortgages: Definitive Case Law
« Reply #10 on: March 31, 2011, 11:23:48 AM »
There are no case numbers or parties' names currently available, since the proceedings using the arguments presented in the thread are still on-going. However, rest assured that the information will be released as soon as legal precedent(s) has been set.

As far as I am aware, before these cases, the statutory instruments cited have never been applied in this manner by any consumers of mortgage products.

Namaste
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goldy36

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Re: UK Mortgages: Definitive Case Law
« Reply #11 on: March 31, 2011, 11:50:52 AM »
Thank you.
It is going to be very interesting to see what happens.

M O'D

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Re: UK Mortgages: Definitive Case Law
« Reply #12 on: April 07, 2011, 09:52:33 AM »
For further consideration - the mortgagors' claims against the banksters:

http://thinkfree.org.uk/forum/index.php?topic=1414.0

namaste
 ;D

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M O'B

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Re: UK Mortgages: Definitive Case Law
« Reply #13 on: May 10, 2011, 01:14:05 PM »
For those of you who have not yet received a response to your emails, please accept my humble apologies. My time has been somewhat limited, not least because of the time and energy expended in preparing an application to the Supreme Court, which we are planning to file by the end of this week, following which we will endeavour to initiate the next stage of organising representative actions against the mortgagees, notification of which will be posted on this thread in due course.

Many thanks for all your kind messages of support. The legal war against the banksters continues.

Namaste
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eggie

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Re: UK Mortgages: Definitive Case Law
« Reply #14 on: May 12, 2011, 03:07:40 PM »
Thanks Michael, yes, i think we all knew that you were very busy.

Thanks on behalf of everyone for all your imput.

BEST WISHES FOR YOUR UPCOMING CASE.