Author Topic: KNOCKING OUT VOID COURT ORDERS  (Read 13582 times)

gerbil

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KNOCKING OUT VOID COURT ORDERS
« on: February 19, 2012, 07:59:42 PM »


http://shirleylewald.law.officelive.com/VoidOrders.aspx

The interesting and important nature of a ‘void’ order of a Court is not fully understood and appreciated in England and this article is written to assist the understanding of a ‘void’ order and to assist legal professionals in any concerns they may have in submitting to a Court that its order is void, if indeed it is void.


Conclusion based on the case laws referred to above:


(i)         an application to have a void order set aside can be made to the Court which made the void order;


(ii)        the setting aside must be done under the Court’s inherent power to set aside its own void order;


(iii)       the Court does not have discretion to refuse the application because the person affected by the void order has a right to have it set aside;


(iv)       an appeal is not necessary because the order is already void;


(v)        if permission to appeal is sought and if sought out of time permission should be given because as the order is void time does not run; it is never too late to raise the issue of nullity; and the person affected by the void order has a right to have it set aside;


(vi)       a void order can be quashed or declared unlawful by Judicial Review where available and where damages may also be claimed;


(vii)      the whole proceedings is void if it was based on a void act;


(viii)     a void order does not have to be obeyed because it has no legal effect from the beginning;


(ix)       as it is never too late to raise the issue of nullity a person can ignore the void order and rely on nullity as a defence when necessary;


(x)        a void order is void even if the nullity is unjust or injustice occurs to an innocent third party;


(xi)       an order of a Court of unlimited jurisdiction is only void if it can be expressly be shown that the unlimited jurisdiction is limited in that situation, or the order is founded on an invalid claim or void act;


(xii)      no Court (not even the Supreme Court) has jurisdiction to give effect to a void act and the duty of the Court is only to interpret and apply the law not to reform or create it as such power rests only with Parliament.


« Last Edit: September 20, 2014, 07:56:28 AM by M O'D »
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gerbil

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Re: KNOCKING OUT VOID COURT ORDERS
« Reply #1 on: February 20, 2012, 03:11:55 PM »
will update soon
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gerbil

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Re: KNOCKING OUT VOID COURT ORDERS
« Reply #2 on: February 20, 2012, 03:13:34 PM »
more case law
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gerbil

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Re: KNOCKING OUT VOID COURT ORDERS
« Reply #3 on: February 20, 2012, 03:16:40 PM »
bear with me im just convert to pdfetc
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Re: KNOCKING OUT VOID COURT ORDERS
« Reply #4 on: February 21, 2012, 08:43:27 AM »
notes
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gerbil

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Re: KNOCKING OUT VOID COURT ORDERS
« Reply #5 on: February 21, 2012, 08:44:50 AM »
notes
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gerbil

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Re: KNOCKING OUT VOID COURT ORDERS
« Reply #6 on: February 21, 2012, 08:46:11 AM »
notes
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Re: KNOCKING OUT VOID COURT ORDERS
« Reply #7 on: February 21, 2012, 08:47:16 AM »
notes
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janb7997

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Re: KNOCKING OUT VOID COURT ORDERS
« Reply #8 on: September 12, 2012, 01:36:53 AM »
Would it be right to interpret that all corporation, and their third party interlopers actions taken after (5th doc.) Notice of Estoppel has been served - are Anti Vires, therefore any orders they legally aquire and court actions are 'void orders' and a Statutary declaration cannot be declined.
If a solicitor  or court officer will not sign the S D can 3 third party witnesses do in these cases ?
from novis at law, Jan of the Bogusz Family

M O'D

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Re: KNOCKING OUT VOID COURT ORDERS
« Reply #9 on: September 12, 2012, 01:03:51 PM »
Would it be right to interpret that all corporation, and their third party interlopers actions taken after (5th doc.) Notice of Estoppel has been served - are Anti Vires, therefore any orders they legally aquire and court actions are 'void orders' and a Statutary declaration cannot be declined.

If they have issued an order that is in contravention of a statutory provision, it is void.

A duly witnessed statutory dec cannot be declined, correct  :)

Quote
If a solicitor  or court officer will not sign the S D can 3 third party witnesses do in these cases ?

The soli or court officer is being asked to WITNESS your signature, not make a legal determination. They would have no grounds for refusing to do, unless of course, it was clearly a nonsensical document.   

namaste

 
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M O'D

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Re: KNOCKING OUT VOID COURT ORDERS
« Reply #10 on: October 06, 2012, 09:02:23 AM »
This is a sanitized version of an application made to a county court to have a VOID order struck out. The usurper/ tyrant sitting as judge struck out the application .... thereby adding further proof to the fact that HMCS is a rigged game played out by lackies and ignoramuses who are effectively operating at the whim of their 'paymasters'. This refusal to apply the law for the People has lead us to declaring the entire system, along with the FSA, null and void...

Quote
IN THE SSnottingham COUNTY COURT

CLAIM NUMBERS: xxxxxxxxxxxxxx and xxxxxxxx

Mr Dickie DIM, CEO, BRADFORD AND BINGLEY PLC (the claimant)

V

The Man (the defendant)

_______________________________________________________________________

THE DEFENDANT’S APPLICATION FOR SETTING ASIDE OF VOID ORDER
and  ORDERS OF  RESTITUTION & RECTIFICATION

____________________________________________________________________

“The third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. The original of private property is probably founded in nature ...but certainly the modifications under which we at present find it, the method of conserving it in the present owner, and of translating it from man to man, are entirely derived from society; and are some of those civil advantages, in exchange for which every individual has resigned a part of his natural liberty. The laws of England are therefore, in point of honour and justice, extremely watchful in ascertaining and protecting this right. Upon this principle the great charter has declared that no freeman shall be disseised, or divested, of his freehold, or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land. And by a variety of ancient statutes it is enacted, that no man’s lands or goods shall be seized into the king’s hands, against the great charter, and the law of the land; and that no man shall be disinherited, nor put out of his franchises or freehold, unless he be duly brought to answer, and be forejudged by course of law; and if any thing be done to the contrary, it shall be redressed, and holden for none.”
Blackstone’s Commentaries on the Laws of England http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2140&chapter=198652&layout=html&Itemid=27

___________________________________________________________________________

Definitions:

“ex debito justitiae” - something that is due as a matter of right ~ http://www.lawsociety.org.sg/public/you_and_the_law/pdf/plainEng_latinExpress.pdf

“AGREEMENT”  “contract. The consent of two or more persons concurring, respecting the transmission of some property, right or benefit, with a view of contracting an obligation. Bac. Ab. h.t.; Com. Dig. h.t.; Vin. Ab. h.t.; Plowd. 17; 1 Com. Contr. 2; 5 East's R. 16. It will be proper to consider, 1, the requisites of an agreement; 2, the kinds of agreements; 3, how they are annulled.
2. – 1. To render an agreement complete six things must concur; there must be, 1, a person able to contract; 2, a person able to be contracted with; 3, a thing to be contracted for; 4, a lawful consideration, or quid pro quo; 5, words to express the agreement; 6, the assent of the contracting parties. Plowd. 161; Co. Litt. 35, b.
3. – 2. As to their form, agreements are of two kinds; 1, by parol, or, in writing, as contradistinguished from specialties; 2, by specialty, or under seal. In relation to their performance, agreements are executed or executory. An agreement is said to be executed when two or more persons make over their respective rights in a thing to one another, and thereby change the property therein, either presently and at once, or at a future time, upon some event that shall give it full effect, without either party trusting to the other; as where things are bought, paid for and delivered. Executory agreements, in the ordinary acceptation of the term, are such contracts as rest on articles, memorandums, parol promises, or undertakings, and the like, to be performed in future, or which are entered into preparatory to more solemn and formal alienations of property. Powel on Cont. Agreements are also conditional and unconditional. They are conditional when some condition must be fulfilled before they can have full effect; they are unconditional when there is no condition attached;
4. – 3. Agreements are annulled or rendered of no effect, first, by the acts of the parties, as, by payment; release – accord and satisfaction; rescission, which is express or implied; 1 Watts & Serg. 442; defeasance; by novation: secondly, by the acts of the law, as, confusion; merger; lapse of time; death, as when a man who has bound himself to teach an apprentice, dies; extinction of the thing which is the subject of the contract, as, when the agreement is to deliver a certain horse and before the time of delivery he dies. See Discharge of a Contract.
5. The writing or instrument containing an agreement is also called an agreement, and sometimes articles of agreement.(q. V.)
6. It is proper, to remark that there is much difference between an agreement and articles of agreement which are only evidence of it. From the moment that the parties have given their consent, the agreement or contract is formed, and, whether it can be proved or not, it has not less the quality to bind both contracting parties. A want of proof does not make it null, because that proof may be supplied aliunde, and the moment it is obtained, the contract may be enforced.
7. Again, the agreement may be null, as when it was obtained by fraud, duress, and the like; and the articles of agreement may be good, as far as the form is concerned. Vide Contract. Deed; Guaranty; Parties to Contracts.”  http://www.constitution.org/bouv/bouvier_v.htm
“CONTRACT”. “This term, in its more extensive sense, includes every description of agreement, or obligation, whereby one party becomes bound to another to pay a sum of money, or to do or omit to do a certain act; or, a contract is an act which contains a perfect obligation. In its more confined sense, it is an agreement between two or more persons, concerning something to be, done, whereby both parties are hound to each other, *or one is bound to the other. 1 Pow. Contr. 6; Civ. Code of Lo. art. 1754; Code Civ. 1101; Poth. Oblig. pt. i. c. 1, S. 1, 1; Blackstone, (2 Comm. 442,) defines it to be an agreement, upon a sufficient consideration, to do or not to do a particular thing. A contract has also been defined to be a compact between two or more persons. 6 Cranch, R. 136.” From Bouviers ~ http://www.constitution.org/bouv/bouvier_c.htm
“TYRANNY” “government. The violation of those laws which regulate the division and the exercises of the sovereign power of the state. It is a violation of -its constitution.”
“TYRANT”   “government. The chief magistrate of the state, whether legitimate or otherwise, who violates the constitution to act arbitrarily contrary to justice. Toull. tit. prel. n. 32.
2. The term tyrant and usurper, are sometimes used as synonymous, because usurpers are almost always tyrants; usurpation is itself a tyrannical act, but properly speaking, the words usurper and tyrant convey different ideas. A king may become a tyrant, although legitimate, when he acts despotically; while a usurper may cease to be a tyrant by governing according to the dictates of justice.
3. This term is sometimes applied to persons in authority who violate the laws and act arbitrarily towards others. Vide Despotism.”
“VOID” ~ “contracts, practice. That which has no force or effect.
2. Contracts, bequests or legal proceedings may be void; these will be severally considered.
3. - 1. The invalidity of a contract may arise from many causes. 1. When the parties have no capacity to contract; as in the case of idiots, lunatics, and in some states, under their local regulations, habitual drunkards. Vide Par-ties to contracts, §1; 1 Hen. & Munf 69; 1 South. R. 361; 2 Hayw. R. 394; Newl. on Contr. 19; 1 Fonbl. Eq. 46; 3 Camp. 128; Long on Sales, 14; Highm. on Lunacy, 111, 112 Chit. on Contr. 29, 257.
4. - 2. When the contract has for its object the performance of an act malum in se; as a covenant to rob or kill a man, or to commit a breach of the peace. Shep. To. 163; Co. Lit. 206, b 10 East, R. 534.
5. - 3. When the thing to be performed is impossible; as, if a man were to covenant to go from the United States to Europe in one day. Co. Lit. 206, b. But in these cases, the impossibility must exist at the time of making the contract; for although subsequent events may excuse the performance, the contract is not absolutely void; as, if John contract to marry Maria, and, before the time appointed, the covenantee marry her himself, the contract will not be enforced, but it was not void in its creation. It differs from a contract made by John, who, being a married man, and known to the covenantee, enters into a contract to marry Maria during the continuance of his existing marriage, for in that case the contract is void.
6. - 4. Contracts against public policy; as, an agreement not to marry any one, or not to follow any business; the one being considered in restraint of marriage, and the other in restraint of trade. 4 Burr. 2225; S. C. Wilm. 364; 2 Vern. 215; Al. 67: 8 Mass. R. 223; 9 Mass. R. 522; 1 Pick. R. 443; 3 Pick. R. 188.
7. - 5. When the contract is fraudulent, it is void, for fraud vitiates everything. 1 Fonbl. Equity, 66, note Newl. on Contr. 352; and article Fraud. As to cases when a condition consists of several parts, and some are lawful and others are not, see article Condition.
9. - 3. A writ or process is void when there was not any authority for issuing it, as where the court had no jurisdiction, In such case, the officers acting under it become trespassers, for they are required, notwithstanding it may sometimes be a difficult question of law, to decide whether the court has or has not jurisdiction. 2 Brownl. 124; 10 Co. 69; March's R. 118; 8 T. R. 424; 3 Cranch, R. 330; 4 Mass. R. 234. Vide articles Irregularity; Regular and Irregular Process. Vide, generally, 8 Com. Dig. 644; Bac. Ab. Conditions, K; Bac. Ab. Infancy, &c. I; Bac. Ab. h. t.; Dane's Ab. Index, h. t.; 3 Chit. Pr. 75; Yelv. 42, a, note 1; 1 Rawle, R. 163; Bouv. Inst Index, h. t.” 
“UNLAWFUL” ~  “1. That which is contrary to law. 2. There are two kinds of contracts which are unlawful; those which are void, and those which are not. When the law expressly prohibits the transaction in respect of which the agreement is entered into and declares it to be void, it is absolutely so. 3 Binn. R. 533. But when it is merely prohibited, without being made void, although unlawful, it is not void. 12 Serg. & Rawle, 237; Chitty, Contr. 230; 23 Amer. Jur. 1 to 23; 1 Mod. 35; 8 East, R. 236, 237; 3 Taunt. R. 244; Hob. 14. Vide Condition; Void.”  http://www.constitution.org/bouv/bouvier_v.htm

“USURPATION” ~ torts. “The unlawful assumption of the use of property which belongs to another; an interruption or the disturbing a man in his right and possession. Toml. Law Dict. h. t.”
“The Order” ~ shall mean the void Order of JudgeUsurper, 26th August 2009 unless otherwise indicated.
_________________________________________________________________

Summary of Application

1. This is an ex debito justitiae application to the court for an order setting aside the Order [Exhibit 4], on the grounds that by failing to apply the Law of Mortgages, failing to inspect the evidence correctly and failing to issue an allocation questionnaire, the judge erred in law, thereby denying to the defendant (D) due process and rendering the aforementioned order void ab initio.

2. D is also applying for summary judgment on the following grounds:

 2.1. The claimant (C) has not provided the court or D with any evidence that proves there is an enforceable mortgage in existence, in the absence of which, the application for possession must necessarily fail under the statutory provisions ~ without limitation ~ of the Law of Property (Miscellaneous Provisions) Act 1989, Unfair Terms in Consumer Contracts Regulations 1999, the Land Registration Act 2002 and the Companies Act 2006.

2.2. Under such circumstances D's counter claim of 25 August 2009 must be reinstated without a hearing, with the restoration of all costs wrongly paid to C pursuant to the void order, the listing of a new trial to hear allegations of fraud, misrepresentation and/or gross negligence against C,  along with an order for full disclosure of the documents, deeds and instruments related to the alleged mortgage of D’s property.

2.3. Given D’s peaceful inhabitation of the home for sixteen (16) years, it is a self-evident matter of fact that he has an Equitable and Overriding Interest in the property which supersedes any registered right recorded via the land registry and the “Registration” by any alleged purchaser, on the basis that, in the absence of a valid mortgage contract, signed by both parties and containing all the express terms and conditions in a single document, the alleged mortgage is void ab initio, along with the decision of HHJUsurper and every related order, since the lawfulness of the judgment is dependent upon the court’s strict adherence to du process, which necessarily includes any and all applicable statutes. 

2.4. Wherefore, since this was evidently not the case, D is applying to the Court for orders of restitution, rectification and damages, thereby restoring him to his home, correcting the register and compensating him for his losses.  Ref. Malory Enterprises Ltd v Cheshire Homes (UK) Ltd  [2002] EWCA Civ 151 The Times, 21 March 2002.   HYPERLINK "http://www.PropertyLawUK.net/propertytransactionsregistration.html"

“… A person who purchased land from a wrongdoer and had been entered on the register as legal owner took the title subject to the right of the lawful owner to seek rectification of the register. The rightful owner has sufficient standing to sue for trespass without rectification. It was in occupation and so had an overriding interest within section 70(1)(g) of the Land Registration Act 1925 …”. 

3. The alleged purchaser was aware of the dispute and duly put on public notice via “Buyer Beware” Notice (see Exhibit 7 ) attached to the ‘for sale’ sign and the grills over the windows of the property (see Chronology). Nevertheless, it is requested that said ‘purchaser’, if he chooses, may be added as a party to D’s counterclaim as he should be offered the benefit of the doubt ~ in simple terms, although he was informed of the unlawful possession of the house, it may well be the case that he did not believe D’s claims to be valid at the time of purchase from C .  The alleged purchaser, Mr AN Usurper, took the title subject to D’s right to seek rectification of the register.

The Central Issues

4. Whether the Order of  HHJ  Usurper 26 August 2009 is void ab initio as C had no valid cause to bring the possession claim in the first instance.

5. Whether C had any valid cause of action to bring the possession claim in the first instance, in the absence of a mortgage contract that complies with the provisions of the 1989 and 2006 Acts, as well as the 1999 Regulations.

6. Whether at the time of the creation of the Void Mortgage, D - as evidenced by the Chronology - was capable of  granting good title to the mortgagee, as he did not hold required proprietory interest on 7th July 1994, the date he executed the undated illegal charge. It is a self evident and long established principle of law that: Nemo dat qui non habet. ‘No one can give who does not possess. Jenk. Cent. 250.’

Evidence of the Judge’s Error

7. In the absence of a document signed by both parties and containing all of the express terms of the mortgage contract, the purported mortgage that arose is of no legal effect and must be considered a nullity, as is emphatically supported by the authorities cited in this application.

8. Therefore, it appears that HHJ Usurper erred in law when he took the statements provided by the Bank, the good faith payments made by D over some 14 ½ years and the (void) registration of the illegal charge as proof of C’s claim for possession, notwithstanding the fact that D made the submission in the hearing of 26 August 2009 that there was no lawful bi-lateral contract in existence, 

9. That was followed by a misapplication of the law of mortgages, thereby giving rise to D’s right to have the order of the judge set aside ex debito justitiae, without going into the merits of the case, on the basis that D was denied due process of law and therefore has the right to have it set aside. It consequently follows that the claim and its related applications should be dismissed, the counterclaim reinstated and summary judgment be given in favour of D, as the authorities cited in this application forcefully demonstrate.

10. On  25 August 2009 ~ see Chronology ~ D filed a Counter Claim for GBP £389,145.15 at Snottingham County Court on the grounds that:
“1. There is no evidence to suggest that a legally enforceable original Loan Agreement is in existence between the parties.
 2. The allegedly outstanding balance of GBP £30,353.05 on the account cannot be verified.
 3. Lien Debtor’s  valuable consideration pertaining to the alleged debt can not be validated upon reasonable request…” 

11. In Wiseman v Wiseman [1953] 1 All ER 601 – Lord Denning confirmed that:

(i) The issue of natural justice does not arise in a void order because it is void whether it causes a failure of natural justice or not;

(ii) a claimant or defendant should not be allowed to abuse the process of Court by failing to comply with a statutory procedure and yet keep the benefit of it and for that reason also a void act is void even if it affects the rights of an innocent third party.

12. Given that CPR 26.3(1) states: “When a defendant files a defence the court will serve an allocation questionnaire on each party”, Snottingham County Court’s failure to issue an allocation questionnaire (see Chronology) is a denial of due process which amounts to a fundamental defect in proceedings thereby further VOIDING said proceedings and it is a breach of Constitutional Law including, without limitation, the 1368 Observance of Due Process of the Law Act http://www.legislation.gov.uk/aep/Edw3/42/3/contents  which states:

 "... no Man be put to answer without Presentment before Justices, or Matter of Record, or by due Process and Writ original, according to the old Law of the Land: And if any Thing from henceforth be done to the contrary, it shall be void in the Law, and holden for Error ..."
 
13. All of which is further amplified by Upjohn LJ in Re Pritchard (deceased) [1963] 1 Ch 502 and Lord Denning in Firman v Ellis [1978] 3 WLR 1 or from a ‘without jurisdiction’/ultra vires act of a public body or judicial office holder (Lord Denning in Pearlman v Governors of Harrow School [1978] 3 WLR 736) which establish that a void order is one which results from a ‘fundamental defect’ in proceedings ~ as is the case here.

14. A ‘fundamental defect’ includes, without limitation, a failure to serve process where service of process is required (Lord Greene in  Craig v Kanssen [1943] 1 KB 256); or where service of proceedings never came to the notice of the defendant at all (e.g. he was abroad and was unaware of the service of proceedings); or where there is a fundamental defect in the issuing of proceedings so that in effect the proceedings have never started; or where proceedings appear to be duly issued but fail to comply with a statutory requirement (Upjohn LJ in Re Pritchard [1963]). Failure to comply with a statutory requirement includes rules made pursuant to a statute (Smurthwaite v Hannay [1894] A.C. 494).

15. The Order issued by HHJUsurper is a void and a ‘without jurisdiction’/ultra vires act as it arose from an act which the Court did not have power to do ~ see Lord Denning in Firman v Ellis [1978].

Magna Carta, Statutory Framework & Authorities

“When the common law and statute law concur, the common law is to be preferred.” 4 Co. 71.

16. Magna Carta 1215: “XXIX Imprisonment, & c. contrary to Law. Administration of Justice.”
“NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.”

17. Without hyperbole of any kind,  the Court is invited to take note of the words of Sir William Blackstone, “Upon this principle the great charter has declared that no freeman shall be disseised, or divested, of his freehold, or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land. And by a variety of ancient statutes it is enacted, that no man’s lands or goods shall be seized into the king’s hands, against the great charter, and the law of the land; and that no man shall be disinherited, nor put out of his franchises or freehold, unless he be duly brought to answer, and be forejudged by course of law; and if any thing be done to the contrary, it shall be redressed, and holden for none.”
18. It is beyond dispute that D was disseised and disinherited of his freehold on 4 November 2010 by C through Bailiffs of the Crown agency known as Snottingham County Court and Snottinghamshire Police Force (see Chronology). The violent seizure of D’s land without legal recourse was an act of tyranny, Vide Despotism and a tyrannical breach of  constitutional law.  At this juncture, all parties are invited to take note of this definition ~ “TYRANT, government. The chief magistrate of the state, whether legitimate or otherwise, who violates the constitution to act arbitrarily contrary to justice. Toull. tit. prel. n. 32.”  It is averred that the Order of HHJUsurper is such a violation and one that brings dishonour on his role as senior judge at Snottingham County Court ~ the sooner it is quashed, the sooner the court can liberate itself from both liability and disrepute.
19. “A third subordinate right of every Englishman is that of applying to the courts of justice for redress of injuries.  Since the law is in England the supreme arbiter of every man’s life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered therein. The emphatical words of Magna Carta,  spoken in the person of the king, who in judgment of law (says Sir Edward Coke) is ever present and repeating them in all his courts, are these; nulli vendemus, nulli negabimus, aut differemus rectum vel justitiam: “and therefore every subject for injury done to him in bonis, in terris, vel persona, by any other subject, be he ecclesiastical or temporal, without any exception, may take his remedy by the course of the law, and have justice and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay.”
Sir William Blackstone: “BOOK THE FIRST. Of the Rights of Persons. CHAPTER I. OF THE ABSOLUTE RIGHTS OF INDIVIDUALS.” Commentaries on the Laws of England in Four Books, vol. 1 [1753]
20. Law of Property (Miscellaneous Provisions) Act 1989

“2  Contracts for sale etc of land to be made by signed writing”
“(1)     A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.
(2)     The terms may be incorporated in a document either by being set out in it or by reference to some other document.
(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.”

21. When contracts are not exchanged, as in this case; in the absence of a single document containing all of its express terms and the signatures of both parties, the effect of the above provisions of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 is to render void and unenforceable such documents, the inevitable result of which is that any charges granted by a mortgagor to a mortgagee under the terms of an invalid contract for a mortgage cannot operate as deeds and therefore are of no legal effect, save for the exceptions of those which have arisen through proprietary estoppel or constructive trust, which cannot be claimed in this case.

22. By way of a compelling authority in support of this assertion, D relies, without limitation, upon the learned Gibson LJ in Court of Appeal 3 WLR 372 United Bank Kuwait Plc -v- Sahib:” 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. […] In the present case, for the reasons given, it seems to me clear that the deposit of title deeds takes effect as a contract for a mortgage and as such falls within s.2 [...] I therefore conclude that by reason of s.2, the mere deposit of title deeds by way of security cannot any longer create a mortgage or charge.”

23. In addition, Cousins Law of Mortgage (2010) 3rd Edition affirms that: “… Where a purported contract for the grant of a mortgage on or after September 26, 1989 fails to comply with the requirements of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, no mortgage will be created and, notwithstanding any oral agreement or deposit of title deeds, the creditor will have no interest in or rights over the debtor’s land [...] It follows that the failure to comply with section 2 will provide a defence to any claim for possession pursuant to a mortgage." (page 610-611). Furthermore, Chitty (2008) 30th edition, page 417, clearly states: “iii. The effect of failure to comply with formal requirements – Effect of non-compliance…any agreement not complying with the requirements of s2 of the 1989 Act is a nullity.”

24. It is clear that proprietary estoppel and constructive trust cannot be reasonably claimed by C, as is confirmed by the principles expressed in the judgment of Lady Justice Arden (October 2010) Court of Appeal EWCA Civ 1095 in Herbert -v- Doyle: “…if their agreement (which does not comply with section 2(1)) is incomplete, they cannot utilise the doctrine of proprietary estoppel or the doctrine of constructive trust to make their agreement binding on the other party by virtue of section 2(5) of the 1989 Act …” (para #57)

25. It is evident too that the intention of Parliament, upon the recommendations of the Law Commission, when it was considering the scope of section 2, was that it would apply to all mortgages, on the basis that an equitable mortgage necessarily arises with every valid legal mortgage, notwithstanding the fact that there is no mention of statutory mortgages in section 2 of the 1989 Act.

26. However, the obvious intentions behind the legislation (see Chronology, January 1989, Lord Mackay) , whether express or implied, were that the deposit of title deeds should no longer be considered sufficient evidence to support a claim for possession and the doctrine of part performance should be effectively abolished, as was diligently considered by the Court of Appeal in Sahib: “Section 2 of the 1989 Act was enacted to give effect to the substance of that part of the Law Commission’s Report, Transfer of Land: Formalities for Contracts for Sale etc of Land (1987) (Law Com No 164), which recommended the repeal of s 40 of the Law of Property Act 1925 and the abolition of the doctrine of part performance and proposed new requirements for the making of a contract for the sale or other disposition of an interest in land.”

27. In simple terms, as the foregoing authorities confirm, C was not in possession of the prerequisites to legally enforce the purported mortgage as it had arisen out of a contract that failed to comply with section 2. It logically follows therefore that C did not have the contractual right to make a possession claim for D’s freehold property, as has been contended by D from the outset of this dispute.

28. Nevertheless, in a letter dated 11 May 2011 (Exhibit 6) C’s solicitors, Drydens of Bradford, stated in response to a notice of intended action based on the Bank’s failure to comply with s2(3) of the LPMP Act, “The mortgage contract between you and our client was created by deed. The document was properly executed by you but did not require countersigning by our client” ~ thereby demonstrating a fatal ignorance of the Law and confirming there has never been a contract for a mortgage that satisfies the statutory requirements.

29. In the case of Lloyds Bank v Bryant [1996] NPC 31, CA, Lightman J, an eminent authority on the law of mortgages, stated that in his judgment: " An agreement for a loan to be secured by a charge on land is a contract for the disposition of an interest in land, namely the creation of a charge and the alleged oral contract was void under Law of Property (Miscellaneous Provisions) Act 1989…”; which clearly contradicts the position taken by C’s solicitors.

30. It follows that C’s assertion that the mortgage contract was created by deed is an erroneous one as it is based on a logical fallacy ~ an appeal to common practice ~ which, as demonstrated by Lady Justice Arden, is no longer applicable, belonging, as it does, to a time pre-dating the application of the LPMP Act on 26 September 1989.

31. Notwithstanding the compelling authorities to the contrary, C’s solicitors’ claim that “The document was properly executed by you but did not require countersigning by our client”  is a view which appears to be ignorant of both the 1989 and 1985 (2006) Companies Act, as well as the distinguished opinions of Gibson LJ in Sahib, Lightman J in Bryant and Lady Justice Arden in the Court of Appeal, EWCA Civ 45 Kinane -v- Mackie-Conteh [2005], who stated in that in her judgment: “A contract to create a mortgage or charge is clearly a contract for the “disposition” of an interest in land. Section 2(6) of the 1989 Act incorporates the definition of this term from section 205(1) (ii) of the 1925 Act, where it includes a "conveyance", which in turn is defined as including a charge…” (para #18).

32. Furthermore, as recently as last year in Helden v Strathmore [2011] EWCA Civ 542 Case No:A3/2010/2290 & 2290(A), a case in which it was wrongly argued that a mortgage deed must also comply with section 2 of the 1989 Act,  as opposed to section 1, Neuberger MR stated that: “Section 2 is concerned with contracts for the creation or sale of legal estates or interests in land, not with documents which actually create or transfer such estates or interests. So a contract to transfer a freehold or a lease in the future, a contract to grant a lease in the future, or a contract for a mortgage in the future, are all within the reach of the section, provided of course the ultimate subject matter is land.”  The Chronology demonstrates, step by step, how the (void) contract for a mortgage in the future between the parties was formed and how palpably lacking in the requirements of the 1989 Act it is.

33. These persuasive authorities clearly indicate that the documents issued to D, which were obviously intended to be executed as a contract for a mortgage in the future, easily fall within the reach of section 2 and must therefore be considered nullities at law, as evidenced by the following terms from the Mortgage Conditions 1992 (Exhibit 5) ~ the performance of which was a mandatory condition in the purported mortgage and which is clearly expressed in the future tense:

 “SECURITY”
“2. The security created by this Mortgage shall be security for the payment and discharge to the Lender of all monies (whether by way of principal interest costs charges or otherwise) payable and of all obligations now and from time to time remaining or becoming due by the Borrower to the Lender or for which the Borrower may be or become liable to the Lender (together called “Total Debt”) pursuant to an agreement or agreements in any one or more of the following categories:

agreements not being regulated or exempt agreements within the meaning of the Act;
Exempt agreements within the meaning of the Act
Regulated agreements (including without limitation partly regulated agreements) and modifying agreements each within the meaning of the Act and in which this Mortgage Deed is embodied within the meaning of the Act; and
 Regulated agreements within the meaning of the Act to which the provisions of Part V of the Act do not apply;
For the avoidance of doubt each agreement secured by this Mortgage is independent of and does not supplement an earlier agreement except where the agreement expressly states otherwise.”

“ ‘Act’ means 1974 Consumer Credit Act and ‘1925 Act’ means the Law of Property Act 1925”

“ ‘Agreement’ means an agreement or agreements now or hereafter made or entered into between the Lender and the Borrower being a loan agreements, credit agreement, modifying agreement or agreement or facility for or relating to other person entitled to redeem this mortgage.”

34. Notwithstanding the nullity of these non-negotiated terms and conditions from 1992, the Court is invited to note the references to the Acts of 1974 and 1925 and the glaring omission of any reference to the 1989 Act , even though it had been in full cause and effect for almost 5 years at the time of the creation of the non-mortgage. Whether this was as the result of the habit of common practice, a deliberate avoidance of  the law or something else altogether is not to be determined at this point.

35. Nevertheless, it is a self evident truth that a “contract” is an “agreement” between two or more persons, concerning something to be, done, whereby both parties are bound to each other, or one is bound to the other. As the Chronology makes clear, it should now be beyond question that the statutory provisions of the 1989 Act have, for whatever reason, not been adhered to by C.

36. The “Mortgage Application Form” , “Mortgage Deed” and “Further Loan Application” so heavily relied upon by C  fall on all counts, since they are not signed by C, nor do they contain all of the terms and conditions upon which C seeks to rely. D therefore takes the position that there is no valid loan agreement or mortgage contract in existence, in which case C had neither a valid enforceable security nor the right to possess and sell the property, *** ***** Road, Forest Fields, Snottingham. Neither had C the right to recover the alleged debts, whether under the Law of Property Act 1925 or otherwise, since so doing without a valid legal mortgage would seem to offend section 101(1)(iii) of the 1925 Act, in addition to s2 of the 1989 Act.

37. In Bellinger v Bellinger [2003] the House of Lords confirmed that: (i) a void act is void from the outset; and (ii) no Court – not even the House of Lords (now the Supreme Court) has jurisdiction to give legal effect to a void act no matter how unreasonable that may seem because doing so would mean reforming the laws which no Court has power to do because such power rests only with Parliament. The duty of the Court is to interpret and apply the law not reform it.

38. Unfair Terms in Consumer Contracts Regulations 1999

“5 Unfair Terms

(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term. […] (5) Schedule 2 to these Regulations contains an indicative and non-exhaustive list of the terms which may be regarded as unfair.”

39. The 1999 Regulations apply to unfair terms in contracts concluded between a seller or a supplier and a consumer. The Regulations apply to contracts relating to land. Charges are therefore caught by the Regulations if they are entered into between a seller/supplier and a consumer. The Regulations apply to contractual terms which have not been individually negotiated. A seller or supplier means any natural or legal person who, in contracts covered by the Regulations, is acting for purposes relating to his trade, business or profession.

40. For the purposes of these regulations, consumer means any natural person acting for purposes outside his trade, business or profession. Since D qualifies as a natural person acting outside of his profession by participating, whether knowingly or unknowingly, in the business of mortgage-backed securities, the 1999 Regulations apply to the legal charge which arose out of C’s void and consequently unenforceable ‘mortgage’.

41. Even in the unlikely event that the unsigned Facility/Offer Letter is deemed sufficient proof of the Mortgagor’s indebtedness, D contends that:

41.1. Each contractual term was not individually negotiated, contrary to C’s good faith requirement, thereby causing significant imbalance in the parties’ rights and obligations, to the detriment of D; and

41.2. All of the terms were drafted in advance by C, thereby preventing D from influencing the substance of their content, which clearly comprises breaches of s 5 (1), (2) and Schedule 2 of the 1999 Regulations, in which case, all of those terms are rendered void and legally unenforceable.

41.3. By way of compelling logic, the following ‘Related Rights’ from said Terms & Conditions  (Exhibit 5) were, contrary to the requirement of good faith, not negotiated and caused a significant imbalance in the parties' rights and obligations  to the detriment of  D, the consumer/‘Borrower’:

“3 (a) so far as he is able (but subject to redemption) the Borrower:

assigns all Related rights to the Lender;
 Declares and agrees that he will hold all Related rights in trust for the Lender; and,
 Irrevocably appoints the Lender to be his attorney to claim assess agree enforce recover and receive all Related rights and also to give any notice or counter notice and exercise to or against any local or other authority or body.

42. For the total avoidance of doubt: the above conditions, 3(a) and the following 3(b) are taken by D to be unconscionable and therefore unlawful.

“3 (b) “Related Rights” shall mean and include
Sums which (under statute or law or contract and whether as of right or ex gratia or otherwise) may be or become payable in respect of the Property or any damage or injury to it or depreciation of it , and
 The benefit of any other obligation security right or indemnity affecting or concerning the Property.”

43. When the law expressly prohibits the transaction in respect of which the agreement is entered into and declares it to be void, it is absolutely so. With this in mind, the Court is invited to examine the logical fallacy that lies at the heart of the void mortgage:

“Other Encumbrances

5. The Borrower covenants that the Property is free from any encumbrances other than any which are in favour of the Lender or which in its discretion the Lender has allowed. Accordingly, except to the extent that any such encumbrances may have previously been postponed or discharged the Lender may on behalf of the Borrower discharge then and pay so much of the advance to be made by the Lender to the Borrower as may be necessary for that purpose to or to the order of the encumbrancers.”

44. It is abundantly clear that at the time of the creation of the (void) Mortgage, D - as evidenced by the chronology ~ was not in possession of the proprietary interest required to create a legal mortgage of the property on the date it was signed and duly witnessed.  Therefore, the maxim Nemo dat qui non habet. ‘No one can give who does not possess. Jenk. Cent.’ 250 applies. 45. In other words, D was incapable of granting a legal or equitable mortgage to the mortgagee.

45.  In Church of England Building Society v Piskor and Others [1956] it was found that “the transfer must have been executed at a time earlier than the charge to the building society, so that there was a time at which it would be correct to say that the mortgagor had become the estate owner, i.e., the legal owner of the fee simple of the property which was subsequently by him charged to the building society to secure the amount of his loan”.  SIR RAYMOND EVERSHED MR.

46. It is clear from the foregoing that it was only after he had established his peaceful inhabitation of the property that D had undisputed possession of the equitable estate, subject to the void mortgage contract for the repayment of a debt that has never been substantiated with anything more than the hearsay, notwithstanding many requests for full disclosure of the the instruments and documents relating to the alleged loan of money by C. Indeed, since C failed to execute a valid mortgage contract, the Bank could conceivably take the position that it is not contractually obliged to do so.

47. It is a self evident truth that no Man can promise to another that which is not in his ownership.
Grammar, Logic and the Common Sense dictate that this is so. Ipso facto, the purported ‘mortgage’ is void.
 
48. The Companies Acts 1985  & 2006

“CA 2006 44 Execution of documents.

(1) Under the law of England and Wales or Northern Ireland a document is executed by a company--(a) by the affixing of its common seal, or (b) by signature in accordance with the following provisions. (2) A document is validly executed by a company if it is signed on behalf of the company-- (a) by two authorised signatories, or (b) by a director of the company in the presence of a witness who attests the signature. (4) A document signed in accordance with subsection (2) and expressed in whatever words, to be executed by the company, has the same effect as if executed under the common seal of the company.”

49. Given the absence of any signature and/or seal on any document (see Exhibits 1,2,3 and 5), it is clear that there has been no execution by D. This applies to the void Deed (Exhibit 2) which emphatically fails to comply with the requirements of section 44 of the Companies Act 2006, which replaced section 36C of the Companies Act 1985. The legal effect of the statutes is that documents and deeds must be signed on behalf of the company by a director in the presence of a witness, or by two authorised signatories.

50. Without adherence to these provisions no purported mortgage contracts can be considered duly executed by a company and its terms are therefore legally unenforceable, as was clearly implied when the Court of Appeal endorsed the view of Lewison J in the case of Williams -v- Redcard Ltd [2011]:

“For a document to be executed by a company, it must either bear the company’s seal, or it must comply with s.44 (4) (section 36C of the Companies Act 1985) in order to take effect as if it had been executed under seal. Subsection (4) requires that the document must not only be made on behalf of the company by complying with one of the two alternative requirements for signature in s.44 (2)…”

51. If a purported mortgage contract has not been validly executed in accordance with section 44 of the 2006 Act, such documents cannot be considered legally enforceable, pursuant to Williams -v- Redcard Ltd,

52. It is indisputable that neither of these requirements has been met by C. The alleged mortgage contract therefore must be considered void ab initio, along with the charge that purportedly arose out of it.


Charges granted under invalid contracts are incapable of operating as deeds for mortgages

53. In Re MOLTON FINANCE LTD.  [No. 001609 of 1965] - [1968] Ch. 325, Denning MR gave a characteristically clear and succinct description of the implied contract within a charge over land, 21 years prior to the changes brought into being by the 1989 Act: “It seems to me that when an equitable mortgage or charge is created by deposit of title deeds, there is an implied contract that the mortgagee or chargee may retain the deeds until he is paid. This implied contract is part and parcel of the equitable mortgage or charge. It is not a separate legal or common law lien. It has no independent existence apart from the equitable mortgage or charge. When the mortgage or charge is avoided for non-registration, then everything which is ancillary to it is avoided also.”

54. It is also worth noting that an equitable mortgage naturally arises from every legal mortgage, as per Westdeutsche v. Islington BC [1996] A.C. 669, [1996] 2 All E.R. 961 House of Lords (3-2) in which Lord Browne-Wilkinson expressed the principle that the equitable title has no existence prior to the separation of the legal and equitable estates, which is achieved through the creation of a legal mortgage. Whilst full title is vested in the mortgagee upon proper registration of such, the mortgagor is allowed to retain beneficial ownership of the property concerned under the mortgagee’s covenant not to issue a demand for full repayment of monies lent, provided the mortgagor performs its obligations under the terms of a contract for a secured loan.

55. The effects of section 2 of the 1989 Act were the creation of the unequivocal obligation to express the previously implied terms of the contract inherent to all charges deposited as title deeds, naturally requiring that the documents be in writing and signed by both the mortgagor and the mortgagee, as well as incorporating all of the applicable terms and conditions in a single document, in contracts that are not exchanged, pursuant to the judgment of Lightman J in Murray v Guinness [1998]: “In my view s.2 of the Act imposes requirements for the validity of contractual obligations of the character there specified: the document in which any such contractual obligation is contained must be in the form specified in s.2 if the contractual obligation is to have legal effect. […] Cases may arise where the invalidating effect of s.2 of the Act on the contractual obligations in a document have so fundamental an effect on the contract or transaction as a whole that the other provisions in the document cannot sensibly or fairly be allowed to stand on their own.”

56. It therefore naturally follows that the effect of non-compliance with requirements of section 2 and section 44 of the Companies Act 2006 (section 36C of the Companies Act 1985) is that the formal requirements for the registration of the purported legal charges under the protection of the Land Registry have not been met for the want of due process and as a result the charge may be defeated as a minor interest by the subsequent disposition of a prevailing interest over the registered estate by D.

57. This position is sustained by Fisher and Lightwood's Law of Mortgage 13th Ed: “... 5.6 The creation of a legal mortgage by way of a charge is a registrable disposition (1. Land Registration Act 2002, s 27(2) f.). In order for the charge to confer a legal estate upon the chargee, the charge must be registered with the chargee being entered as proprietor of the charge in the Charges Register of the chargor’s title (2. Land Registration Act 2002, ss 27(1), 59(2), Sch 2, para 8). Until registration the chargee has an equitable charge only over the registered estate (3. Mortgage Corpn Ltd v Nationwide Credit Corpn Ltd [1994] Ch 49), and

58. “As the chargee’s rights take effect only in equity until completion of the registration requirements, the charge is liable to be ‘defeated’ by a subsequent disposition of the registered estate over which the charge is made (4. If, as is likely to be the case, the chargee is not in occupation of the registered estate over which the charge has been made, the equitable charge will need to be protected by entry of a unilateral notice (as to which see the Land Registration Act 2002, ss 35 and 36). Under the Land Registration Act 1925, s 106, it was expressly stated that unless and until the mortgagee becomes a registered chargee:- (a) it shall take effect in equity, and (b) it shall be capable of being overridden as a minor interest unless it is protected as provided by sub-section (3) […]. The position under the Land Registration Act 1925, s.106 is reflected in the Land Registration Act 2002, s.27(1) which provides that ‘if a disposition of a registered estate  …  is required to be compared by registration, it does not operate at law until the relevant registration requirements are met.’).”

59. Since the registration of a charge naturally requires that the statutory obligations of the parties to a mortgage have been satisfied, otherwise known as due process of law, the absence of a valid contract nullifies the legal effect of the registration of the charge, which may still exist in equity unless it is successfully challenged or removed from the register, but is incapable of operating at law without a valid mortgage contract, which plainly occurred as a direct result of C’s gross negligence and/or misrepresentation of the facts, whether fraudulent or otherwise.

60. The extent of these alleged offences may well prove tantamount to fraud on a scale previously unprecedented in this jurisdiction, but in any event it could only be fairly deduced that C is incapable of sustaining a defence that it committed such acts without being fully aware that it was committing them, for its own gain and to the disadvantage of the consumers of its mortgage products, by facilitating the registration of illegal charges that it can have no excuse for not knowing were executed in breach of the mortgagee’s statutory obligations, many of which have been successfully relied upon by C in its applications for possession orders and warrants of eviction, when it is an established principle of equity that no valid cause of action can arise from an unlawful deed.

61. Without limitation, D relies on the following authorities in support of these points. In Khan and others v Rehman and others - [2007] All ER (D) 343 (Mar), Judge Hodge QC discussed the consequences of the improperly executed legal charges that were intended to operate as deeds:  “My finding of fact that Talib's signatures on the legal charges of No 114 and No 75 and the transfer of No 75 was not properly witnessed means that those documents cannot take effect as deeds: see section 1 (3) of the Law of Property (Miscellaneous Provisions) Act 1989… Although, because they were not deeds, the charges of No 114 and No 75 could not take effect as legal charges, in my judgment they operated both as acknowledgments of the underlying indebtedness and as valid equitable charges. In the case of No 114, the register of title should be rectified, but only to the limited extent of showing the charge as an equitable, rather than a legal, charge. In the case of No 75, the charge has already been discharged. So far as the transfer of No 75 is concerned, because it was not a deed, it was not capable of passing the legal estate in No 75: see section 52 (1) of the Law of Property Act 1925.”

62. In Chitty on Contracts (29th Ed) it is explained that, if, on the true construction of a statute “the contract be rendered illegal, it can make no difference, in point of law, whether the statute which makes it so has in mind the protection of the revenue or any other object. The sole question is whether the statute means to prohibit the contract. If, on the other hand the object of the statute is the protection of the public from possible injury or fraud, or is the promotion of some object of public policy the inference is that contracts made in contravention of its provisions are prohibited." (para 16-146). If these principles were applied in this instance, the point taken would be that it is prohibited under statute to create a mortgage without a valid contract for the disposition of such an interest over land.

63. In Heald v O'Connor [1971] 2 All ER 1105, [1971] 1 WLR 497, Fisher J held, in relation to a security given in breach of s 54 of the Companies Act 1948 (the statutory predecessor of s 151 of the 1985 Act), that “…the statute renders illegal any security or purported security given in breach of that section” (p 502 F-G) and “…the debenture in the present case is prohibited by statute and for that reason illegal” (p 506B-C) (see also, to similar effect, Selangor United Rubber Estates Ltd v Cradock (No 3) [1968] 2 All ER 1073, [1968] 1 WLR 1555 at 1659F per Ungoed-Thomas J).

64. Therefore, under schedule 4, sections 5 and 6 of the Land Registration Act 2002, the entry of the charge in the register must be removed and the register corrected by the Registrar at the earliest opportunity, on the grounds that (i) C’s lack of proper care and/or false representation resulted in a superfluous entry, which it is in both the D’s and the public interest to strike from the register and (ii) D was the victim of an UNLAWFUL EVICTION on 4 November 2010 for the reason that no valid cause of action arises from fraud:

“ 7. - 5. When the contract is fraudulent, it is void, for fraud vitiates everything. 1 Fonbl. Equity, 66, note Newl. on Contr. 352; and article Fraud,”

65. Thus, in accord with the following, the Court is invited to find that the register be corrected immediately ~ under the Land Registration Act 2002, “5 The registrar may alter the register for the purpose of— (a) correcting a mistake, (b) bringing the register up to date, (c) giving effect to any estate, right or interest excepted from the effect of registration, or (d) removing a superfluous entry. 6(1) This paragraph applies to the power under paragraph 5, so far as relating to rectification.(2) No alteration affecting the title of the proprietor of a registered estate in land may be made under paragraph 5 without the proprietor’s consent in relation to land in his possession unless—(a) he has by fraud or lack of proper care caused or substantially contributed to the mistake, or (b) it would for any other reason be unjust for the alteration not to be made.”

The Void Order

66. A void order does not have to be obeyed because, for example, in Crane v Director of Public Prosecutions [1921], it was stated that if an order is void ab initio (from the beginning) then there is no real order of the court.

67. A void order results from a ‘fundamental defect’ in proceedings (Upjohn LJ in Re Pritchard (deceased) [1963] 1 Ch 502 and Lord Denning in Firman v Ellis [1978] 3 WLR 1).  A ‘fundamental defect’ includes a failure to serve process where service of process is required (Lord Greene in Craig v Kanssen Craig v Kanssen [1943] 1 KB 256); or where proceedings appear to be duly issued but fail to comply with a statutory requirement (Upjohn LJ in Re Pritchard [1963]). Failure to comply with a statutory requirement includes rules made pursuant to a statute (Smurthwaite v Hannay [1894] A.C. 494).

68. In Peacock v Bell and Kendal [1667] 85 E.R. 81, pp.87:88 it was held that nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly stated.

69. It is important to note therefore that in the case of orders of courts with unlimited jurisdiction, an order can never be void unless the ‘unlimited jurisdiction’ is ‘limited’ in situations where it is expressly shown to be so. However, where the court’s unlimited jurisdiction is shown to be limited (for example: a restriction on the court’s power by an Act of Parliament or Civil or Criminal Procedure Rule) (Peacock v Bell and Kendal [1667]; Halsbury’s Laws of England) then the doctrine of nullity will apply.

70. Similarly, if the higher court’s order is founded on a lower court’s void act or invalid claim then the higher court’s decision will also be void (Lord Denning in MacFoy v United Africa Co. Ltd. [1961] 3 All ER). A person affected by both a void or voidable order has the right – ex debito justitiae – to have the order set aside (which means that the court does not have discretion to refuse to set aside the order or to go into the merits of the case) (Lord Greene in Craig v Kanssen [1943]). In said case, Lord Denning confirmed that:-

(i) a void order is automatically void without more ado;
(ii) a void order does not have to be set aside by a Court to render it void although for convenience it may sometimes be necessary to have the Court set the void order aside;
(iii) a void order is incurably void and all proceedings based on the void order/invalid claim are also void.
(iv) Even a decision of the higher courts (High Court, Court of Appeal and Supreme Court) will be void if the decision is founded on an invalid claim or void act, because something cannot be founded on nothing.

71. The procedure for setting aside a void order is by application to the court which made the void order, although it can also be set aside by appeal although an appeal is not necessary (Lord Greene in Craig v Kanssen [1943]) or it can quashed or declared invalid by Judicial Review (where available) and where damages may also be claimed.

72. Although an appeal is not necessary to set aside a void order, if permission to appeal is requested and if out of time the court should grant permission because time does not run because the order is void and the person affected by it has the right to have it set aside (Lord Greene in Craig v Kanssen [1943]). 

73. A void order is void ~

(i) even if it results in a failure of natural justice or injustice to an innocent third party (Lord Denning in Wiseman v Wiseman [1953] 1 All ER 601).
(ii) It is never too late to raise the issue of nullity and a person can ignore the void order or claim and raise it as a defence when necessary (Wandsworth London Borough Council v. Winder [1985] A.C. 461; Smurthwaite v Hannay [1894] A.C. 494; Upjohn LJ in Re Pritchard (deceased) [1963]; Lord Denning in MacFoy v United Africa Co. Ltd. [1961]).

74. Therefore, in the light of the foregoing:

(i) an application to have a void order set aside can be made to the court which made the void order;
(ii) the setting aside must be done under the court’s inherent power to set aside its own void order;
(iii) the court does not have discretion to refuse the application because the person affected by the void order has a right to have it set aside; (iv) an appeal is not necessary because the order is already void; (v) if permission to appeal is sought and if sought out of time permission should be given because as the order is void time does not run; it is never too late to raise the issue of nullity and the person affected by the void order has a right to have it set aside; 
(vi) a void order can be quashed or declared unlawful by Judicial Review where available and where damages may also be claimed;
(vii) the whole proceeding is void if it was based on a void act;
(viii) a void order does not have to be obeyed because it has no legal effect from the beginning; 
(ix) as it is never too late to raise the issue of nullity a person can ignore the void order and rely on nullity as a defence when necessary; 
(x) a void order is void even if the nullity is unjust or injustice occurs to an innocent third party;
(xi) an order of a court of unlimited jurisdiction is only void if it can be expressly be shown that the unlimited jurisdiction is limited in that situation, or the order is founded on an invalid claim or void act; (xii) no court (not even the Supreme Court) has jurisdiction to give effect to a void act and the duty of the court is only to interpret and apply the law not to reform or create it as such power rests only with Parliament.

75. Given the fatal error of the judge in failing to correctly inspect the evidence put before the court was compounded by his failure to apply the statutory law of mortgages correctly and that the failure of the Court under CPR 26.3(1) to issue an allocation questionnaire is a denial of due process which amounts to a fundamental defect in proceedings thereby further VOIDING said proceedings and breaching  Constitutional Law, the Order issued must be considered void ab initio for the want of due process. Therefore, D has the incontrovertible right to have it set aside ex- debito justitiae and the Defence and Counter Claim of 25 August 2009 must be reinstated granting summary judgment to D, on the basis that there is no sustainable claim for C in the absence of a valid and enforceable mortgage contract, with all costs being restored to D that were wrongly paid to C under the terms of the void order of 26 August 2009.

76. D requests that this application is filed and the orders applied for are issued without delay.

Conclusion

77.  In Bellinger v Bellinger [2003] UKHL 21 the House of Lords confirmed that a void act is void from the outset and no Court – not even the House of Lords (now the Supreme Court) – has jurisdiction to give legal effect to a void act no matter how unreasonable that may seem, because doing so would mean reforming the law which no Court has power to do because such power rests only with Parliament. The duty of the Court is to interpret and apply the law not reform or create it.

78. It is important to note that if a claim is invalid the plaintiff can start all over again unless he is prevented from doing so due to limitation as in the case of Re Pritchard (deceased) [1963] or estoppel – for example; where the Claimant applied to the Court for permission to correct/amend the claim and permission was refused; or the plaintiff or his solicitor had been negligent in ignoring a material fact when filing the invalid claim, so that the plaintiff is estopped by the principle that he should not be allowed a ‘second bite at the cherry’.

79. Given the well-established absence of the Bank’s signature and/or company seal on ANY document purporting to create an alleged contract, it is self evident that the order issued by the court is VOID ab initio for the want of due process, on the basis that the judgment is founded upon a fundamental misapplication of the law.

80. The procedure for setting aside a void order is by application to the Court which made the void order, although it can also be set aside by appeal although an appeal is not necessary (Lord Greene in Craig v Kanssen [1943]) or it can quashed or declared invalid by Judicial Review (where available) and where damages may also be claimed. As said void mortgage purported to be a legal mortgage, it was irrefutably subject to statutory provisions and its very creation and legitimacy was necessarily grounded in said requirements. Therefore, in the absence of a lawful bi-lateral contract - as required by s. 2 of the LPMP Act 1989, the purported mortgage is void ab initio.

81. The cited failures to follow statutory provision render the mortgage illegal as per Chitty on Contracts (29th Ed) the following is stated (citations omitted): ‘If, on the true construction of the statute, “the contract be rendered illegal, it can make no difference, in point of law, whether the statute which makes it so has in mind the protection of the revenue or any other object. The sole question is whether the statute means to prohibit the contract. If, on the other hand the object of the statute is the protection of the public from possible injury or fraud, or is the promotion of some object of public policy the inference is that contracts made in contravention of its provisions are prohibited." (para 16-146)”

82. The mortgage is nullity under Common Law and the ‘security’ allegedly held by C is void - a nullity, which is amply supported by ~ Re Hill & Tyler Ltd (in administration); Harlow and another v Loveday and another: "[67] In Heald v O'Connor [1971] 2 All ER 1105, [1971] 1 WLR 497, Fisher J held, in relation to a security given in breach of s 54 of the Companies Act 1948 (the statutory predecessor of s 151 of the 1985 Act), that “the statute renders illegal any security or purported security given in breach of that section” (p 502 F-G) and “the debenture in the present case is prohibited by statute and for that reason illegal” (p 506B-C) (see also, to similar effect, Selangor United Rubber Estates Ltd v Cradock (No 3) [1968] 2 All ER 1073, [1968] 1 WLR 1555 at 1659F per Ungoed-Thomas J. In Carney v Herbert [1985] 1 AC 301 mortgages entered into in breach of the equivalent provision in the Australian Companies Act 1961 were considered by the Privy Council to have been “illegal and of no effect” and “illegal and void” (at p 309)."

83. Given the above, the Court is invited to further take note that as D was never under any obligation to perform on said VOID ‘MORTGAGE’, the subsequent void Order for possession and the consequent Warrant for Eviction were all nullities, albeit ones which precipitated him the gravest of losses - namely, his unalienable right and custom under the ancient laws of these lands to the peaceful inhabitation of his freehold known as ‘Sovereign Place’,  *** ***** Rioad, Forest Fields, Snottingham. 

84. Wherefore, by way of  recompense and in the name of truth and justice, the claimant invites the court to make two orders pursuant to the following:

85.. Given that the claimant has not provided the court or the defendant with any evidence that proves there is an enforceable mortgage in existence, in the absence of which, the application for possession must necessarily fail, under the provisions ~ without limitation ~ of  the LPMP Act 1989, Unfair Terms in Consumer Contracts Regulations 1999, the Land Registration Act 2002 and the Companies Act 1985 (2006); D's counter claim of 25 August 2009 must be reinstated without a hearing, with summary judgment being granted to D, along with the restoration of all costs wrongly paid to C pursuant to the void order, an order for disclosure and a retrial in the High Court.


The Orders

Order of Restitution

86  That (i) the 26 August 2009 order of HHJ Usurper be set aside, on the basis that it is void ab initio for the want of due process of law, along with all subsequent orders and,

(ii) The Counter Claim of 25 August 2009 be reinstated and summary judgment given in favour of D, on the ground that C has failed to provide the court with any evidence that proves there is a valid mortgage contract with which to support C’s applications, which must necessarily be struck out as disclosing no reasonable grounds in such circumstances, and

(iii) That all costs paid in error to C be restored within 14 days, with costs being awarded to D on an indemnity basis.

(iv) That, given C and his solicitors, Drydens of Bradford have been negligent in ignoring the statutory requirements of the LPMP Act 1989 when filing the invalid claim, C is denied permission to appeal and/or reinstatement of its claim, by the principle that C should not be allowed a ‘second bite at the cherry’ following such a void and unconscionable action.

Order of Rectification

87.  That given D’s overriding interest and the charge arose out of an invalid mortgage contract which is of no legal effect (void ab initio),  the land register should be corrected as soon as possible,  in accord with  s.27(1) LRA & s.51(1) LRA (Apr 2002) and, the Court issue an order that the register be rectified to show D as the registered and bona fide proprietor of the Land and bona fide holder of a 1st charge over the Land (with address ‘Sovereign Place’ , *** ***** Road, Snottingham [Post Code].  In Bellinger v Bellinger [2003] UKHL 21 the House of Lords confirmed that a void act is void from the outset and no Court – not even the House of Lords (now the Supreme Court) – has jurisdiction to give legal effect to a void act no matter how unreasonable that may seem, because doing so would mean reforming the law which no Court has power to do because such power rests only with Parliament. The duty of the Court is to interpret and apply the law not reform or create it.


88. It is important to note that if a claim is invalid the plaintiff can start all over again unless he is prevented from doing so due to limitation as in the case of Re Pritchard (deceased) [1963] or estoppel – for example; where the Claimant applied to the Court for permission to correct/amend the claim and permission was refused; or the plaintiff or his solicitor had been negligent in ignoring a material fact when filing the invalid claim, so that the plaintiff is estopped by the principle that he should not be allowed a ‘second bite at the cherry’.

89. Given the well-established absence of the Bank’s signature and/or company seal on ANY document purporting to create an alleged contract, it is self evident that the order issued by the court is VOID ab initio for the want of due process, on the basis that the judgment is founded upon a fundamental misapplication of the law.

90. The procedure for setting aside a void order is by application to the Court which made the void order, although it can also be set aside by appeal although an appeal is not necessary (Lord Greene in Craig v Kanssen [1943]) or it can quashed or declared invalid by Judicial Review (where available) and where damages may also be claimed.



Statement of Truth ~ it is my belief that the facts stated in this document are true.



                                                    By:
                                                 

Duly Authorised Representative to the Defendant, The Man™

2 April 2012









« Last Edit: September 20, 2014, 07:52:26 AM by M O'D »
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Lovely Jubbly

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Re: KNOCKING OUT VOID COURT ORDERS
« Reply #11 on: February 12, 2014, 11:44:16 PM »
There seems to be an upsurge in the Void Order tactic being used in various circles, particularly in the Republic of Ireland where Void Order Notices (as opposed to applications to set aside Void Orders which give the Court Jurisdiction) are causing a certain amount of issues for the Courts.

I myself have issued a Notice of Void Order in a case where Bank of Ireland secured a Summary Judgement against my Legal Fiction for £2.3M in Truro County Court Feb 2012. 

The file was subsequently transferred to Reading County Court (Local Jurisdiction for Bankruptcy) where I have served Notice, without paying an application fee I've been granted a Hearing on 28th April.

The ground for the Notice of Void Order relates to the fact that the Bank could not present a Competent Witness at the Hearing, held in Judges chambers without my knowledge, merely relying on a Statement of Claim written by a so called Litigations Manager at Bank of Ireland and Witness Statement of a Solicitor from Foot Anstey.   Subject Matter Jurisdiction has therefore not been established therefore making any Order issued Void.

Has anyone undertaken this approach against a Bank, am aware certain quarters have had success with Child Support cases, but nothing has hit the alternative press regarding any successes?

Lovely Jubbly


Laurence James Howell

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Re: KNOCKING OUT VOID COURT ORDERS
« Reply #12 on: February 15, 2014, 01:30:24 PM »
Hi All

Very interesting, how and why ? any info would be appreciated.

Peace through Love

spirit

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Re: KNOCKING OUT VOID COURT ORDERS
« Reply #13 on: September 17, 2014, 02:20:10 PM »
Is there any info to read re. Void orders

M O'D

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Re: KNOCKING OUT VOID COURT ORDERS
« Reply #14 on: September 20, 2014, 07:34:28 AM »
BEEN DENIED DUE PROCESS OF THE LAW?  JUDGE IGNORED CPR? OPPRESSIVE CONDUCT FROM A JUDGE? COURT ISSUED IGNORED A VOID ORDER?

These templates can be adopted to the individual's needs - simply return the void order with an accompanying Notice and stand your ground.

Any and all void orders should be returned as appropriate to the place that isssued them... do not relent until the void order has been amended/struck out/ dealt with to your satisfaction ...


Quote
For the urgent attention of a High Court Judge/
Circuit Judge [as appropriate]
[COURT ADDRESS]?
[DATE]
URGENT NOTICE OF VOID ORDER
Dear Sir/Madam,

Case Number: […]

The enclosed orders were issued ultra vires by [NAME OF JUDGE] in the [NAME COURT]. In simple terms, the judge did not establish that he had the necessary jurisdiction to make such orders, on the basis that:

1. There is no valid legal mortgage in existence between the parties which complies with the statutory law of mortgages. Since the judge's decision was founded on the false claim that the contrary is the case, his orders are void on that ground alone.

2. In addition, the Extended Civil Restraint Order issued by [NAME JUDGE] is also void ab intio and must be set aside on the ground that due process of law was completely ignored; which also renders the orders of [NAME], on the ground that they are reliant upon the ECRO being valid, which is most certainly not the case.

The High Court is therefore required to set its orders aside without delay. It must also be stressed that the court does not have the necessary jurisdiction to refuse to do so, as per the judgments of Lord Greene in Craig v Kanssen Craig v Kanssen [1943] 1 KB 256); Upjohn LJ in Re Pritchard [1963]; and Lord Denning in Firman v Ellis [1978].

Kindly confirm that this has been done at your earliest opportunity.

Yours sincerely,



Quote
For the urgent attention of a High Court Judge
[ADDRESS COURT]?
[DATE]
URGENT NOTICE OF VOID ORDER
Dear Sir/Madam,

Case Number: […]

The enclosed orders were issued ultra vires by [NAME OF JUDGE] on 26/07/2013 in the NAME Court. In simple terms, the judge did not establish that he had the necessary jurisdiction to make such orders, on the basis that:

1. There is no valid legal mortgage in existence which complies with the statutory law of mortgages. Since the judge's decision was founded on the false claim that the contrary is the case, his orders are void on that ground alone.

2. [In addition, the Extended Civil Restraint Order issued by [NAME OF JUDGE] is also void ab intio and must be set aside on the ground that due process of law was completely ignored by the judge, who dismissed numerous authorities and statutes by which the court was bound as “wholly without merit”, including [without limitation] the Garguilo decision by the Land Registry Adjudicator, Underhill J's decision in R [Mercury Tax Group] v HMRC and sections 1 and 2 of the Law of Property (Miscellaneous Provisions) Act 1989.]

The Court is therefore required to set these orders aside without delay. It must also be stressed that the court does not have the necessary jurisdiction to refuse to do so, as per the judgments of Lord Greene in Craig v Kanssen [1943] 1 KB 256); Upjohn LJ in Re Pritchard [1963]; and Lord Denning in Firman v Ellis [1978].

Therefore, the enclosed letter from [NAME OF JUDGE]'s clerk renders the judge liable for a claim of negligence and/or misconduct, for the following reasons:

a. The letter was addressed to “a High Court Judge”, not the Vice Chancellor, who does not have jurisdiction to interfere in the setting aside of his void orders.
b. The High Court is bound by the decisions of Lord Greene, Upjohn LJ and Lord Denning, referenced above and does not have jurisdiction to refuse to set aside the void orders.

Kindly confirm that this has been done without any further delay; and please provide us the details of [NAME OF JUDGE]'s public indemnity insurers, who must be informed that there will be a negligence claim made agains it, in the event that the void orders are not set aside without further interference.

Yours sincerely,




Quote
For the urgent attention of a Land Registry Adjudicator
Property Chamber, 1st Tier Upper Tribunal
3rd Floor, 10 Alfred Place, London WC1E 7LR
14/05/2014
URGENT NOTICE OF VOID ORDER
Dear Sir/Madam,

Case Number: […]

Another version of the void order has been issued ultra vires by [NAME]. In simple terms, he did not have the necessary jurisdiction to make such an order, on the basis that:

1. The Recievers were not validly appointed, since there is not a valid legal mortgage between the parties in existence which complies with sections 1 or 2 of the Law of Poperty (Miscellaneous Provisions) Act 1989; and their purported appointment did not comply with section 101 of the Law of Ppoperty Act 1925, which expressly states that the right to appoint LPA Receivers can only arise if “mortgage money has become due.” The properties were therefore certainly not validly sold, since the purported charges referred to in the order do not comply with the statutory law of mortgages, rendering each of the purported conveyances illegal and void.
2. It is our contention that [NAME] has been negligent in making his statement alleging that the properties have been legally sold; and by claiming that the applications relating to the remaining properties are bound to fail for the reasons given in the submissions of the Bank's solicitors; whilst relying upon a decision which must be distinguished from this complicated and unusual case, if justice is to be done by the Property Chamber.
3. If the tribunal does not have particulars relating to our reliance upon fraud or mistake as grounds for the applications, it can only be because of an administrative error, as all of our claims and applications have been particularised. Please let us know which element of the particulars is missing from your file and we will of course replace it.
4. The Extended Civil Restraint Order issued by [NAME JUDGE] on [DATE] is also void ab intio and must be set aside on the ground that due process of law was completely ignored by the judge, in a hearing we were led to believe by the High Court would be for directions only.

The Property Chamber is therefore required to set its order aside without delay.; and the tribunal does not have the necessary jurisdiction to refuse to do so, as per the judgments of Lord Greene in Craig v Kanssen [1943] 1 KB 256); Upjohn LJ in Re Pritchard [1963]; and Lord Denning in Firman v Ellis [1978].


Yours sincerely,


All Rights Reserved - Without Prejudice
Without Recourse - Non-Assumpsit
Errors & Omissions Excepted