Twenty months after our application to have a void and illegal mortgage canceled and removed from the Charges Register by the Land Registrar at Durham Land Registry, Bank of Scotland has withdrawn its entirely bogus legal objection to its removal and requested that the Property Chamber [which replaced the Land Registry adjudicating service and has been sitting on the vigourously disputed application since the first day of July 2013], inform the Land Registry that the existing entries in the register pertaining to the bank’s purported legal mortgage over a commercial property [as well as the appointment of LPA Receivers], should be canceled as soon as possible.
Not only has the Land Registry already accepted that it is liable for the losses incurred as a result of this error in the register, it also means that the unscrupulous receivers, who have been illegally appointed to manage the property since July 2010, along with two executives of the bank and its legal representatives, will now be summonsed to defend charges of fraud by false representation and trespass, in a private criminal prosecution, which was stayed in July 2013 and will now proceed to trial by jury.
It therefore seems more than reasonable to deduce, that amidst the chaos of the rigged game of fraud known as the conveyancing industry, the deception which has been played out in her majesty’s courts and Land Registry since 26/09/1989, is slowly unraveling.
In broad strokes, I feel compelled to emphasise the significance of what has just transpired, not just for my own family and all those who have supported us in our bitter and long-running dispute with Bank of Scotland, but also for the sake of everybody on these islands who is facing a county court possession claim for allegedly defaulting on a purported legal mortgage by deed.
The Anatomy of a Void Mortgage Deed
1. A mortgage by deed has now been declared void in the high court, for failing to comply with section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989, in that the signatures of the mortgagors were not witnessed at the moment the deed was executed, which was also not on the day it was dated; and
2. Since the judgment given to the bank by HHJ Behrens on 21/07/2014, declaring that it has the right to a new mortgage over the property, is entirely reliant upon its valid registration as a legal mortgage, its removal from the Charges Register would, in and of itself, render that judgment and other miscarriages of justice that preceded it, illegal and void.
The infamous illegal mortgage in our case, which does not even bear the names of its purported mortgagors on its face, is finally set to be removed from the charges register by the Land Registrar, whom the judges at the Property Chamber are reluctantly set to instruct to do so at the earliest opportunity; proving beyond all doubt that the provisions of the 1989 Act are applicable to all legal mortgages; a mortgagor is not estopped from relying on the defects in the mortgage documents in defence of a mortgage-related claim; and a mortgage, if proven to be void under those provisions, must be canceled by the Land Registry as a mistake in the register.
In other words, in the event that a void mortgagor can demonstrate that their mortgage deed was not properly executed in the presence of an independent witness on the day it is dated, it will be held to be void and the Land Registry will be obliged to cancel its illegal registration.
Criminal Proceedings
The private criminal proceedings we brought against the bank’s illegally appointed LPA Receivers were stayed by a district judge in a magistrates court almost 18 months ago, on the tenuous ground that the void charge was still registered in the Charges Register and until such time that this is not the case, it must be presumed that it is legally valid and enforceable.
However, the surprisingly sympathetic judge agreed with the prosecution’s point that, in the event that our application to rectify the register was successful, the defendants would be summonsed to appear at a trial to answer charges of fraud by false representation and trespass, in the absence of a swift and reasonable offer of compensation to cover the considerable losses of the Trustees. Since this has not been forthcoming, the criminal court’s legal advisers have agreed to re-open the case upon their receipt of confirmation that the mortgage has been canceled and removed from the register, which we expect to happen within the next few days.
However, the receivers will not appear in the dock on their own, as the same district judge agreed with another point made by the defendants’ barrister at the preliminary hearing, that the bank’s representatives would ultimately be held responsible for the crimes of the receivers they appointed under an entirely void and illegal mortgage, which they all claimed under oath in the high court had been certified as being legally valid and enforceable by the bank’s solicitors, in order to procure summary judgment against us – fraud upon the court, by another name, which their indemnity insurance policies offer no cover for.
Void Judgments
The following judgments, spanning three sets of legal proceedings over the course of more than four years, must now be set aside as void, since each of the judges concerned relied upon the registration of the legal mortgage concerned being valid:
1. The now retired HHJ Walton’s dismissal of our first claim of fraud against the bank and its receivers as “totally without merit”.
2. The now retired Lloyd LJ’s dismissal of our application to appeal Walton’s verdict as “totally without merit”.
3. Norris J’s dismissal of our injunction application as “totally without merit” and the subsequent issue of Extended Civil Restraint Orders against myself and the Trustees, barring us all from making any application to the high court without the permission of HHJ Behrens.
4. HHJ Behrens dismissal of our second claim of fraud upon the court as “totally without merit”, which he did in an order of the court’s own motion and without a hearing of the issues.
Compensation
Whilst the Land Registry has already accepted liability for all the losses incurred as a direct result of the illegal registration of the void mortgage, which might well include every void mortgage payment, as well as the significant losses incurred during the time it has taken to establish it as a nullity at law; the Trustees are also due significant compensation from their former conveyancing solicitor’s insurers, following their client’s agreement that he would not oppose a claim of professional negligence, in the event the mortgage was proven to be void. In addition, the bank are liable for all of the losses incurred by the Trustees since the void deed was registered and their receivers are liable for all the losses incurred since the date their illegal receivership began.
How to Determine that a Mortgage Deed is Void
Simply ask and answer for yourself the following questions:
a. Was the Deed signed by the alleged Borrower [Mortgagor] in the presence of an independent witness [an individual without a vested interest in the transaction, who is not a family member], who attested to the signature, having been present at the moment of its execution?
If the answer is “no”, for any reason whatsoever, the Deed is void ab intio [from the date of its purported execution], for failing to comply with section 1(3) of the 1989 Act, under section 52 of the Law of Property Act 1925.
b. Did the Deed record the actual date it was signed by the Mortgagor or a date which was added to the document at a subsequent time?
In the event that the Deed bears a date which is not the day upon which it was executed, it is void ab intio for breaching section 1(3) of the 1989 Act, which prescribes that it [the Deed] must be complete at the moment of execution, in accordance with the reasoning given by Underhill J in R [Mercury Tax Group] v HMRC and the Land Registry Adjudicator in Garguilo. as well as the summary judgment we obtained from Judge Behrens over the section 1(3) point.
In simple terms, nothing can be added to the document after signature, including the date, notwithstanding the common practice of the entire conveyancing industry to advise mortgagors to leave the date blank after signature.
c. Is the Deed supported by a mortgage contract which contains or refers to a document which contains all of its terms and is signed by both the Mortgagor and the Mortgagee [the alleged Lender]?
If the answer is “no”, for any reason whatsoever, the Deed is void ab initio because the Mortgagee failed to comply with section 2(3) of the 1989 Act, since no valid and legally enforceable mortgage can arise without such signed writing being properly executed by both parties, as per the judgments given in United Bank of Kuwait v Sahib, Murray v Guinness and Keay v Morris Homes.
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