When I first looked through this post it looked like the chasing lenders were right and that they do not, and should not, have the original mortgage deed. Upon the completion of some serious pondering, however, I am still as convinced as ever that the chasing lenders *should* have the original mortgage deed. There seems to be a lot of confusion over the Mortgage Deed and the Title Deed. From the original posting here is what I have been able to piece together. I have flagged the different part *FACT* or *OPINION* so that you can see where I am looking for correction/comments.(posted 8455 days ago)1) When a person buys the property the original mortgage deed and copy are sent by the solicitors to the Land Registry. The LR registers the mortgage deed on the Charge Certificate, keeps the copy of the mortgage deed and sends the original mortgage deed and the charge certificate back to the solicitor. *FACT*
2) The solicitor sends the original mortgage deed and the Charge certificate to the mortgage lender who keeps it wherever they keep their deeds. *FACT*
3) Upon the sale of a repossessed property a "Transfer of Whole" ( Rule 114, Land Registration Rules 1925) document is drawn up. This document is signed as a deed and is sent along with the charge certificate to the Land registry that releases the property from any charge that the selling lender has on it. *FACT*
4) The selling lender should keep the original mortgage deed in order to pursue for any outstanding monies. *OPINION*
The reason I say this is that: a) The LR have told me that they *NEVER* hold original mortgage deeds. b) Their is no point in it being sent to the new lender as it is not enforceable by them. c) The charge certificate that the new lender gets is good enough to show that there are no other charges on the property affecting their interests. d) The only party that this document is of *any* value to is the selling lender.
My best guess is that if your lender does not have the *original mortgage deed* then they a) were hit by fire, flood etc. b) they just lost the document c) they have got the document, but just don't know where, or d) They went plc, wrote off a number of old debts to make their financial position look better for the market and destroyed the deeds as a part of the write off.
I also know for sure that RSC Order 88 states:
RULE 1 (1) This order applies to any claim by a mortgagee or mortgagor or by any person having the right to foreclose or redeem any mortgage, being a claim in which there is a claim for any of the following remedies, namely - *payment of moneys secured by the mortgage;*
RULE 2 "Without prejudice to section 61(1) of the Act (which provides for the assignment to the Chancery Division of proceedings for the purposes, among others, of the redemption or foreclosure of mortgages and the sale and distribution of the proceeds of property subject to any lien or charge) any claim in which there is a claim for - a) *payment of moneys secured by a mortgage of any real or leasehold property;* or
b) delivery of possession (whether before or after foreclosure) to the mortgagee of any such property by the mortgagor or by any other person who is or is alleged to be in possession of the property, *shall be assigned to the Chancery Division*.
RULE 5(1) -The witness statement or affidavit in support of the claim (other than a claim to which rule 5A applies) to which this rule applies is begun must comply with the following provisions of this rule. *This rule applies to a mortgage claim in the Chancery Division* in which the claimant is the mortgagee and claims delivery of possession or *payment of moneys secured by the mortgage* or both. (2) The witness statement or *affidavit must exhibit a true copy* of the mortgage and the *original mortgage or, in the case of a registered charge, the charge certificate must be produced at the hearing of the claim*.
Rule 5(2) is very important here. The Supreme Court recognizes that a claim may arise where there is:
a) a charge on a property, the charge certificate must be produced. b) when their is no charge (ie the lender sold the secured property) the *original mortgage* must be produced.
Why would the Supreme Court ask for a document that the lender should not have? It is also important to note that this rule say that a *true copy* must be exhibited by the affidavit, and therefore it would seem that a true copy is not good enough for the hearing!
Regards Tim