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Clare
Clare, Solicitor
Category: UK Property Law
Satisfied Customers: 29073
Experience:  25 years exeperience
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Can I ask to see the original contract

Resolved Question:

Can I ask to see the original contract
Submitted: 5 years ago.
Category: UK Property Law
Expert:  Clare replied 5 years ago.
hi
could you explain a little more about your question please
claire
Customer: replied 5 years ago.
Hello,
I have serveral mortgages, I have begun an audit of the family trust to asses material asset for possible transfer of assets.

I have asked the creditor companies for sight of the original deeds of contract. They say that they only have copies (soft) and that they are not obliged to hold (keep)the originals.(UK)

I have been unable to reference to law/statute that allows them to destroy or otherwise dispose of the original (penned) contract.

What can you say about this?
many thanks in advance.
Kenny
Expert:  Clare replied 5 years ago.
hi
i am sorry but can we be clear - are you talking about mortgages on properties?
claire
Customer: replied 5 years ago.
No probs, its best to be clear, these are residential properties.

Thank you
Expert:  Clare replied 5 years ago.
hi
in that case you ar eentitled to copies of the original mortgage deeds - indeed you can obtain them from the land registry - but the mortgage companies are under no duty to provide you with copies of the original applications
claire
Customer: replied 5 years ago.
thanks claire,

I appreciate your answer, butI already know that, maybe I'm phrasing it wrongly?

If the creditor is not bound to hold the originals who is?
So maybe instead of saying can i ask for the original contract.
it should have been WHO can i ask for the original contract.

also you neglected to mention what law or statute makes it so that the original creditor is not liable to hold the originals.

Kind regards,

Kenny.
Expert:  Clare replied 5 years ago.
hi
the difficulty is that you are referring to a "contract" when residential mortgages are not dealt with unnder contract law in the same way as say credit card debts
mortgages are covered by property law and the application is not a ocntract - it is the basis on which an offer is made - but again the offer is not a binding document - it can be withdrawn at any time up to the rlease of the monies . the binding document is the legal charge - the mortgage deed - which is available to you from the land registry
claire
Customer: replied 5 years ago.
Thank you very much.

Just to clarify.

I am bound because the creditor made a legal charge on the land.

The documentation I signed was for informational purposes.

no-one is obliged to keep the original documents that were signed.
Expert:  Clare replied 5 years ago.
hi
again i am not certain that i have all the information available
i understand you to be asking abour residential mortgages
if you are the owner of the property then you received the monies and you signed a mortgage deed
is that correct?
if not what information did you have to give and why?
claire
Customer: replied 5 years ago.
hello yes I am the owner. All papers were signed, I am unable to verify transfer of monies, hence I am seeking to verify these 'debts/contractual obligations' for the purposes of assurance.

I am not sure if you can answer this question fully.

I am also eligible for legal aid and am seeking council under those terms. I would like to ask more questions in and around this matter.

Many thanks.

Kenny
Expert:  Clare replied 5 years ago.
hi
can you give me a little more background to explain how these mortgages came about and why you are not certain that the monies were received
claire
Customer: replied 5 years ago.
Hello thank you for your reply, the mortgages came about in the proper manner, as per normal.

The family trust is subject to very precise auditing and accounting procedures. There is a possbilty that I can redeem the mortgages (as in pay them off - i.e you might say "bring me the iou and I will settle it)

In amounst the directives of the trust are the requirements for original 'promissory notes' and documents with original (penned) signatures. Payments have been misapplied in the past hence the strict accounting conditions.

It terms of mortgages and such the board has seen and had reports that the proliferation of hedge funds as mortgage backed securities, indicates that the lenders have traded on many of these mortgages (as bonds)

I would like to dispell this proposition and produce some kind of original document.

If though I can show that infact according to the law and or statute, the lender is not obliged to keep the original (destroy it) then that may suffice.

note: You are the first person to tell me that the land charge is the binding element, under what authority does the lender make a charge on the land? Surley because of the original application and offer? Surely it is in the interests of proper commerce that these documents are kept. (can i establish when this practice became the norm?)

99% of cases there is never actual cash given, so when you say have you received the monies are you asking if there is a statement of account OR are you asking if there is evidence of exchange (bills and exchange act) as I am unable to pin down the source of the monies. Banking procedures indicate that banks can not lend from deposits, the creditor is unable to provide accounts of exchange.

I hope this helps you understand that I am quite simple trying to verify the account. (for redemption) but it has become almost impossible, according to proof.

many thanks,
Kenny
Expert:  Clare replied 5 years ago.
hi
i am still a little unclear - it would help if you could give me some idea of which instiutions have granted these mortgages
claire
Customer: replied 5 years ago.
Hi

These morgages are with major Building Societies (names omitted)

Many thanks
Expert:  Clare replied 5 years ago.
hi
with ordinary domestic residential mortgages money does indeed change hands - and the legal charge is the security for the return of those monies
this is governed by the law of property
the binding document is the legal charge
each year there is a statement sent out detailing the amount outstanding to redeem that charge
claire
Customer: replied 5 years ago.
Hello,

Thank you for your answer. I can accept that, that is your answer so in that sense fine.

I am still unable to verify your answer though, so in that sense you could almost say anything ( with respect)

In that sense you mention propety law, but omitted to state which part exactly. IF true that it is the land charge that is the 'joinder' why is that not mentioned in any documentation of agreement 'terms and conditions' also how long has this been the case (as in since what year)

If the land charge was applied fraudulently or erroneously then there are no other original documents stored vis a vis no way to verify a mortgage.

I know you're thinking 'my god man you had the money' but I can not prove receipt, all I can say (for sure) is that the 'building society' debited my account for the amount ( not credited), being from the computing profession I know how easy it is to do that.

Being into property law you may know of 'walker todd's affadavit' ( it on google) which outlines a case where a man tried to verify his mortgage, and couldn't no matter how hard he tried..

SO should I accept your answer?

.......................................


Excerpt:

COMMENTARY AND SUMMARY OF ARGUMENT
14. Plaintiff apparently accepted the Defendants’ Note and credit application (money of account) in exchange for its own credit (also money of account) and deposited that credit into an account with the Defendants’ names on the account, as well as apparently issuing its own credit for $95,905.16 to Michigan National Bank for the account of the Defendants. One reasonably might argue that the Plaintiff recorded the Note or credit application as a loan (money of account) from the Defendants to the Plaintiff and that the Plaintiff then became the borrower of an equivalent amount of money of account from the Defendants.

15. The Plaintiff in fact never lent any of its own pre-existing money, credit, or assets as consideration to purchase the Note or credit agreement from the Defendants. (Robertson Notes: I add that when the bank does the forgoing, then in that event, there is an utter failure of consideration for the “loan contract”.) When the Plaintiff deposited the Defendants’ $400,000 of newly issued credit into an account, the Plaintiff created from $360,000 to $400,000 of new money (the nominal principal amount less up to ten percent or $40,000 of reserves that the Federal Reserve would require against a demand deposit of this size). The Plaintiff received $400,000 of credit or money of account from the Defendants as an asset. GAAP ordinarily would require that the Plaintiff record a liability account, crediting the Defendants’ deposit account, showing that the Plaintiff owes $400,000 of money to the Defendants, just as if the Defendants were to deposit cash or a payroll check into their account.

16. The following appears to be a disputed fact in this case about which I have insufficient information on which to form a conclusion: I infer that it is alleged that Plaintiff refused to lend the Defendants Plaintiff’s own money or assets and recorded a $400,000 loan from the Defendants to the Plaintiff, which arguably was a $400,000 deposit of money of account by the Defendants, and then when the Plaintiff repaid the Defendants by paying its own credit (money of account) in the amount of $400,000 to third-party sellers of goods and services for the account of Defendants, the Defendants were repaid their loan to Plaintiff, and the transaction was complete.

17. I do not have sufficient knowledge of the facts in this case to form a conclusion on the following disputed points: None of the following material facts are disclosed in the credit application or Note or were advertised by Plaintiff to prove that the Defendants are the true lenders and the Plaintiff is the true borrower. The Plaintiff is trying to use the credit application form or the Note to persuade and deceive the Defendants into believing that the opposite occurred and that the Defendants were the borrower and not the lender. The following point is undisputed: The Defendants’ loan of their credit to Plaintiff, when issued and paid from their deposit or credit account at Plaintiff, became money in the Federal Reserve System (subject to a reduction of up to ten percent for reserve requirements) as the newly issued credit was paid pursuant to written orders, including checks and wire transfers, to sellers of goods and services for the account of Defendants.

CONCLUSION

18. Based on the foregoing, Plaintiff is using the Defendant’s Note for its own purposes, and it remains to be proven whether Plaintiff has incurred any financial loss or actual damages (I do not have sufficient information to form a conclusion on this point). In any case, the inclusion of the “lawful money” language in the repayment clause of the Note is confusing at best and in fact may be misleading in the context described above.
...............................................

Expert:  Clare replied 5 years ago.
hi
your question was sent to the uk property law section - are you in fact in the usa? as if so i shall opt out as the laws are very different which may explain the problem!
claire
Customer: replied 5 years ago.
Hi Claire,

No worries, I am in the UK, I just posted that to you to highlight the difficulty I am having with reference to the original mortgage. Yes you are right the laws appear different in US. But still here I am unable to reference why the creditor is not obliged as you say to hold the original application (is there a law or code that supports this) also is there a law /code that says the land charge is the 'joinder' in UK proerty law.

Many thanks
KLCP
Expert:  Clare replied 5 years ago.
hi
rather than wondering when the law was change dto say that the applications should not be kept it would be more appropriate to consider when the law would have been changed to say that they should
mortgages have been apart of finacial life for hundreds of years and even 50 years ago were arranged through oral transactions more often than not
the Law of Property Act 1925 is the first major piece of legislation in this field although it has been revised often since then
the essential point remains the same for residential property mortgages however - on the one part of the provision of the money on the other is the signing of the mortgage deed to secure the sum which acts also as an acknowledgement of the monies received
i am uncertain what you refer to when you use the term "joinder"
claire
Customer: replied 5 years ago.
Hi,

Yes, sorry, joinder may the the wrong word there, it might be 'binder' I'm trying to say proof of contract in the sense of empirical evidence.

So when a person "signs the mortgage deed to secure the sum" you imply that the security is in the signature, which I do happen to agree with.

But you have also said ( above) that the the "legal charge is the security"

So maybe we can agree that there are two acts made to secure the sum (the loan)

- The promise of the lender (the application)
- The land charge ( by the lender)

Once the land charge is in place the lender is in a position to monetize the secured charge. ( lender has a valid land charge and a promise to pay - this is a tradable commodity)

-(The 'lender' merly creates a liabitly 'on account' which is termed as a 'loan' however, in a small amount of mortgage transactions there is an actual cash payout from the bank, but in mortgage 'chain/loan' trading is entirely on account)


-The lender then trades in mortgage backed securites (hedge funds) - this is why the original signed documents are never avaliable. Unless of course we believe that they are all destroyed to save space?

-Even if I were way off track with this: nowhere in any documentation can I find an acknowledgement(consent) that the originals can be destroyed, IF that were the case I would have kept them myself for archive, I dont beleive it was part of the deal (at least not a disclosed part) So there is an element of full disclosure (as in the lack of it) which I am slightly uncomforable with.

(e.g note: these documents will be destroyed if you wish to retain them please say so...)

Again if I were way of with this, then I should be able to gain sight of the accounting details that can clearly show the loss of 'money' by the lender - this however, has proved immpossible. ( transparency --)

-(GAAP prevents banks lending from their own coffers)

So what I am left with is a land charge that was made on the land in circumstances where the lender has falied to disclose the full nature of the 'agreement' in one way or another, not least the lack of verifiable documentation.

Even if I can go to the registry and ask for a copy, it is exactly that ...a copy.

Essentially, if I believe the land charge was made as a result of administritive error of some kind, there is no lawful way to challenge, because the court will find for the lender.

To some extent, I'm not sure how a law society sworn solicitor could challenge the established accounting practices which are in error.

I'm gonna conditionally accept your answer, because I dont want to tarnish your 100% record and you have kinda tried to answer also I do value your time. So thank you for that at least.

Would you like to add anything else before I accept.
Expert:  Clare replied 5 years ago.
hi
the application by the lender is just that - it is not a promise of any sort - it is simply a statement of your financial position upon which the building society chose to offer a loan or not
even if they make an offer it is not binding and can be withdrawn at any time before the money is released
the "contract" such as it is occurs when the money is received and the charge (mortgage deed) is signed - and the land registry can send you an "office copy" of that signed agreement - the original is always sent to the land registry
so what are you asking the building society to provide you with - a copy of your informational application? they are under no duty to you to keep them - although i believe the fsa require some record keeping that is not part of any relationship they may or may not have with you
they should however have a record of the terms of the offer
if the charge is indeed challenged - if you say you did not receive the monies then the building society does have to produce evidence of the accountto which the monies were sent
claire
Clare, Solicitor
Category: UK Property Law
Satisfied Customers: 29073
Experience: 25 years exeperience
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Clare
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