I emailed York Land Registry who said that when they register a change of ownership, the old owner is erased from the register and replaced by the new owner.(posted 8459 days ago)Any previous mortgages taken out which have been settled are kept on file at the Land Registry. They are never left attached to the Charge Certificate, only the current mortgage is attached.
Years ago when Charge Certificates were typewritten, they used to cross entries out and put new ones underneath using the same certificate. Nowadays they always make up a fresh certificate. Sometimes the former lender may ask for the mortgage deed back, but the impression I got was that this didn't happen very often.
With a repossessed property, form TR2 rather than TR1 is used, but the result is the same.
I think you are misleading with your quote from RSC Order 88. The full text of Rule 1(1) says:
"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; - sale of the mortgaged property; - foreclosure; - delivery of possession (whether before or after foreclosure or without foreclosure) to the mortgagee by the mortgagor or by any other person who is or is alleged to be in possession of the property; - redemption; - reconveyance of the property or its release from the security; - delivery of possession by the mortgagee. "
Read in full, this Order is the rules for a lender to obtain possession of a property, not for claiming the shortfall afterwards.
In any event, Rules 1 - 5 and 7 of Order 88 will be revoked in a few months time when SI 256(L7) comes into force. Some of Order 88 has been reworded into Order 45. The SI just says how a possession can take place....
"Possession claims relating to mortgaged residential property 55.10 - (1) This rule applies where a mortgagee seeks possession of land which consists of or includes residential property.
(2) Not less than 14 days before the hearing the claimant must send a notice to the property addressed to "the occupiers".
(3) The notice referred to in paragraph (2) must -
(a) state that a possession claim for the property has started; (b) show the name and address of the claimant, the defendant and the court which issued the claim form; and (c) give details of the hearing.
4) The claimant must produce at the hearing - (a) a copy of the notice; and (b) evidence that he has served it."
If you're not happy with what I've said Tim, which in part has come from a solicitor and the Land Registry, then I suggest you speak to a solicitor and get a barrister's opinion on the rules and how they are applied.