Is My Mortgage Agreement Unenforceable

Angry_Cat

in relation to the creation of the mortgage between the Borrower and the Originator - we failed to consider and factor in what the position would be after the sale with regard to the Borrower rights under the provision of s.88 LPA 1925:

Realisation of freehold mortgages.

(1) Where an estate in fee simple has been mortgaged by the creation of a term of years absolute limited thereout or by a charge by way of legal mortgage and the mortgagee sells under his statutory or express power of sale—
(a) the conveyance by him shall operate to vest in the purchaser the fee simple in the land conveyed subject to any legal mortgage having priority to the mortgage in right of which the sale is made and to any money thereby secured, and thereupon;
(b) the mortgage term or the charge by way of legal mortgage and any subsequent mortgage term or charges shall merge or be extinguished as respects the land conveyed; and such conveyance may, as respects the fee simple, be made in the name of the estate owner in whom it is vested.

An express power of sale is the Originators Legal right alongside the right to take power to enter into possession as ‘soon as the ink is dry’ [fourmaids v Dudley]
(s.101 (1) LPA 1925) & (s.95 (4) LPA 1925)

s.101 (1) LPA 1925: Powers incident to estate or interest of mortgagee.

"(1) A mortgagee, where the mortgage is made by deed, shall, by virtue of this Act, have the following powers, to the like extent as if they had been in terms conferred by the mortgage deed, but not further (namely):

(i) A power, when the mortgage money has become due, to sell, or to concur with any other person in selling, the mortgaged property, or any part thereof, either subject to prior charges or not, and either together or in lots, by public auction or by private contract, subject to such conditions respecting title, or evidence of title, or other matter, as the mortgagee thinks fit, with power to vary any contract for sale, and to buy in at an auction, or to rescind any contract for sale, and to re-sell, without being answerable for any loss occasioned thereby; and..."

s. 95 (4) LPA 1925:

"Nothing in this Act affects prejudicially the right of a mortgagee of land whether or not his charge is secured by a legal term of years absolute to take possession of the land, but the taking of possession by the mortgagee does not convert any legal estate of the mortgagor into an equitable interest.

Angry_Cat

in relation to the creation of the mortgage between the Borrower and the Originator - we failed to consider and factor in what the position would be after the sale with regard to the Borrower rights under the provision of s.88 LPA 1925:

Realisation of freehold mortgages.

(1) Where an estate in fee simple has been mortgaged by the creation of a term of years absolute limited thereout or by a charge by way of legal mortgage and the mortgagee sells under his statutory or express power of sale—
(a) the conveyance by him shall operate to vest in the purchaser the fee simple in the land conveyed subject to any legal mortgage having priority to the mortgage in right of which the sale is made and to any money thereby secured, and thereupon;
(b) the mortgage term or the charge by way of legal mortgage and any subsequent mortgage term or charges shall merge or be extinguished as respects the land conveyed; and such conveyance may, as respects the fee simple, be made in the name of the estate owner in whom it is vested.

An express power of sale is the Originators Legal right alongside the right to take power to enter into possession as ‘soon as the ink is dry’ [fourmaids v Dudley]
(s.101 (1) LPA 1925) & (s.95 (4) LPA 1925)

s.101 (1) LPA 1925: Powers incident to estate or interest of mortgagee.

"(1) A mortgagee, where the mortgage is made by deed, shall, by virtue of this Act, have the following powers, to the like extent as if they had been in terms conferred by the mortgage deed, but not further (namely):

(i) A power, when the mortgage money has become due, to sell, or to concur with any other person in selling, the mortgaged property, or any part thereof, either subject to prior charges or not, and either together or in lots, by public auction or by private contract, subject to such conditions respecting title, or evidence of title, or other matter, as the mortgagee thinks fit, with power to vary any contract for sale, and to buy in at an auction, or to rescind any contract for sale, and to re-sell, without being answerable for any loss occasioned thereby; and..."

s. 95 (4) LPA 1925:

"Nothing in this Act affects prejudicially the right of a mortgagee of land whether or not his charge is secured by a legal term of years absolute to take possession of the land, but the taking of possession by the mortgagee does not convert any legal estate of the mortgagor into an equitable interest.

Angry_Cat

The Originator by way of MSA and other supporting documents, soon after the creation of the loan to borrowers under s.87 LPA 1925 SELLS and transfers all or part of his rights and powers to the loan and/or the collateral security to an SPV for 'money's worth.

We then failed to consider and factor in:

The Trust is created and for all intent and purpose – A.N.OTHERS Trust is a Bond or Debenture Trust.

The Originator is a Bare Trust with Agency Type Agreement and retains his name on the Title for the benefit of the real owner (the SPV) and other beneficiaries.

We then failed to consider and factor in:

The trust is one that is formed to meet the strict regulation of the Irish and/or London Stock Exchange.

The SPV is not required to register his ownership of title at HMLR, - regulation provides that he need only register a charge at Companies House.,

We went on to fail and consider to factor in:

The SPV’s charge at Companies House is his proof of Legal ownership with ‘title to sue’ (over-riding interest)

We then failed to consider and factor in:

The form of a Bond or Debenture Trust is an important element – it provides all the elements necessary to provide a conduit-pipe for interest and principal payments from the Originating mortgage company to the variety of individual investors – whilst at the same time providing a ‘watchdog’ for the investors interests whose name is on the title (the originator – reliant on s.58 retains ‘title to sue’ at HMLR).

We then failed to consider and factor in if s.33 LPA 1925 applies in the circumstances:

33. Application of Pt. I. to personal representatives.

The provisions of this Part of this Act relating to [F1trustees of land] apply to personal representatives holding [F1land in trust], but without prejudice to their rights and powers for purposes of administration.

We then failed to consider and factor in:

That s. 34 (2) LPA 1925 allows a maximum of 4 joint tenants in land. The formation of a Bond or Debenture Trust is a means of avoiding this restriction.

“(2) Where, after the commencement of this Act, land is expressed to be conveyed to any persons in undivided shares and those persons are of full age, the conveyance shall (notwithstanding anything to the contrary in this Act) operate as if the land had been expressed to be conveyed to the grantees, or, if there are more than four grantees, to the four first named in the conveyance, as joint tenants [F1in trust for the persons interested in the land]:

Provided that, where the conveyance is made by way of mortgage the land shall vest in the grantees or such four of them as aforesaid for a term of years absolute (as provided by this Act) as joint tenants subject to cesser on redemption in like manner as if the mortgage money had belonged to them on a joint account, but without prejudice to the beneficial interests in the mortgage money and interest.”

We then failed to consider and factor in LPA 1925 s 34 (3) & (4):

“ (3) A devise bequest or testamentary appointment, coming into operation after the commencement of this Act, of land to two or more persons in undivided shares shall operate as a devise bequest or appointment of the land to F2. . . the personal representatives of the testator, and . . .(but without prejudice to the rights and powers of the personal representatives for purposes of administration) [F3in trust for the persons interested in the land].

[F4(3A) In subsections (2) and (3) of this section references to the persons interested in the land include persons interested as trustees or personal representatives (as well as persons beneficially interested).]”

Angry_Cat

All the above points are from CAG and posted by someone very knowledgeable about the law, securitisation and the law

ILW

Angry_Cat wrote: »

All the above points are from CAG and posted by someone very knowledgeable about the law, securitisation and the law

Why are you posting all this stuff on here?

Angry_Cat

ILW wrote: »

Why are you posting all this stuff on here?

To spread the word about securitsisation, getting people to think about it and not just accepting it

ILW

Angry_Cat wrote: »

To spread the word about securitsisation, getting people to think about it and not just accepting it

Think your time would be better spent just working out how to pay back all the money you borrowed.
Sorry.

GMS

If the mortgage is unenforceable it will only be the charge, not the loan.

The loan would become unsecured and as such most likely be enforced with a charging order or ultimately bankruptcy.

grey_gym_sock

ok, i'll try this once ...

i haven't read most of the thread, so i can't say if there's a flaw in your logic. i suspect there is, but i shouldn't pre-judge. but let's suppose there's no flaw. it will make no difference whatsoever, because the law is not 100% logic. if following logic would lead judges to the conclusion that securitized mortgages are unenforceable (i.e. neither by the original lender, nor by whomever they sold, or attempted to sell, the mortgage to), then they will depart from logic to avoid that unpalatable conclusion. so you're wasting your time.

SouthCoast

GMS wrote: »

If the mortgage is unenforceable it will only be the charge, not the loan.

The loan would become unsecured and as such most likely be enforced with a charging order or ultimately bankruptcy.

OP does not appear to dispute that the debt exists so how will they respond when a Statutory Demand is served on them?

http://www.nationaldebtline.co.uk/england_wales/factsheet.php?page=36_dealing_with_a_statutory_demand