Acquisition & transfer of property with no evidence of valid appointment of Receiver

omnithanos · 26-01-2015 05:27PM #1

A Receiver was appointed over my commercial property in November 2010. The deed copy of appointment I received in the post bore no seal and had only one signature from the EBS, their memorandum of rules stating the requirement for the deed to be countersigned by the EBS (countersigned meaning two signatures). As my solicitor did not act on this, I brought it to the attention of the Solicitor for the EBS (who was also acting for the Receiver). In reply he sent me the same document with no seal and only one signature from the EBS. I replied asking had the Receiver been validly appointed? He acknowledged receipt of my letter but ignored my comments and the EBS proceeded to Transfer title of my property without telling me. I was subsequently able to obtain the Instrument of sale from the land registry which shows that the Receiver was not involved in the transfer of title and I had expressly not given my consent to any sale in writing to their Solicitor prior to the transfer.

Section 64 states that in order for a deed to be executed it must be delivered as a deed by the person executing it or by a person authorised to do so on that person’s behalf. As i did not receive a valid document I presume this deed was not executed properly on that basis alone.

Was this a fraudulent acquisition and transfer of my property as they had knowledge before the transfer that I had not been given evidence of the Receivers valid appointment and is this why the Receiver did not sign off on the transfer?

What is my remedy?

Mr. Incognito · 26-01-2015 11:16PM

Did you owe the money?

Was the mortgage registered as a burden on the folio?

Pat Mustard · 27-01-2015 01:07AM

omnithanos wrote: »

Was this a fraudulent acquisition and transfer of my property as they had knowledge before the transfer that I had not been given evidence of the Receivers valid appointment and is this why the Receiver did not sign off on the transfer?

What is my remedy?

Mod:
Please read the forum charter. Requests for legal advice are not allowed by the forum charter.

omnithanos wrote: »

I had expressly not given my consent to any sale in writing to their Solicitor prior to the transfer.

Did you borrow money, sign a mortgage and did the loan fall into arrears?

omnithanos wrote: »

Section 64 states that in order for a deed to be executed it must be delivered as a deed by the person executing it or by a person authorised to do so on that person’s behalf. As i did not receive a valid document I presume this deed was not executed properly on that basis alone.

Are you talking about s.64 of the Land and Conveyancing Law Reform Act 2009? S.64 of the 2009 Act does not state what you have said here:

64.— (1) Any rule of law which requires—
(a) a seal for the valid execution of a deed by an individual, or
(b) authority to deliver a deed to be given by deed,
is abolished.

omnithanos · 27-01-2015 01:43AM

You are correct Mr. Mustard, it does not say that in 64 (1)
but it does say exactly that in 64 (2) c if you follow your own link.

I have tenants who owe me money but I don't go round and change the locks so why are banks not questioned when they deliberately chose not to follow correct procedure?

Read my post again and tell me if it appears to you that correct procedure was followed by the bank?

In correspondence with the bank they actually wrote to me on more than one occasion stating that they refuted facts which were proven to be true, what's that about?

omnithanos · 27-01-2015 01:50AM

With regard to my comment "whats my remedy" as it has been brought to my attention that it is against the rules to solicit legal advice and as I am unable to edit my original post I would like to clarify that I was interested in a remedy for a grazed knee but in the context of the post I can see how my query may have been misinterpreted.

Pat Mustard · 27-01-2015 02:32AM

omnithanos wrote: »

You are correct Mr. Mustard, it does not say that in 64 (1)
but it does say exactly that in 64 (2) c if you follow your own link.

You are correct; that's what it says.

In relation to deeds of conveyance/transfer these are usually delivered by solicitors acting in a sale to a purchaser's solicitor, thereby complying with the formality under s.64(2)(c).

Mr. Incognito · 27-01-2015 09:03AM

omnithanos wrote: »

A Receiver was appointed over my commercial property in November 2010. The deed copy of appointment I received in the post bore no seal and had only one signature from the EBS, their memorandum of rules stating the requirement for the deed to be countersigned by the EBS (countersigned meaning two signatures). As my solicitor did not act on this, I brought it to the attention of the Solicitor for the EBS (who was also acting for the Receiver). In reply he sent me the same document with no seal and only one signature from the EBS. I replied asking had the Receiver been validly appointed? He acknowledged receipt of my letter but ignored my comments and the EBS proceeded to Transfer title of my property without telling me. I was subsequently able to obtain the Instrument of sale from the land registry which shows that the Receiver was not involved in the transfer of title and I had expressly not given my consent to any sale in writing to their Solicitor prior to the transfer.

Section 64 states that in order for a deed to be executed it must be delivered as a deed by the person executing it or by a person authorised to do so on that person’s behalf. As i did not receive a valid document I presume this deed was not executed properly on that basis alone.

Was this a fraudulent acquisition and transfer of my property as they had knowledge before the transfer that I had not been given evidence of the Receivers valid appointment and is this why the Receiver did not sign off on the transfer?

What is my remedy?

Firstly a seal is an indentation. It wouldnt come out on a copied deed.

The receiver is usually appointed on foot of a registered mortgage. That original mortgage is examined by the land registry and would not be registered if it was not in order.

Your consent is not required as you have signed up to the obligation. When you default and the mortgage is called in and the receiver appointed you own nowt.

If you believe the deed was not validly executed you can contact a solicitor, take legal advice and challenge it in the courts.

You could be liable for both parties costs if you lose. It is unlikely a solicitor would take such a case without substantial fees on account which i suspect you do not have. You would also likely be hit with a security for costs application.

Thats just general advice, not specific and should not be relied upon.

Peregrinus · 27-01-2015 09:35AM

"Delivery" of a deed is a technical term. It doesn't mean "delivery" as in physically handing something to someone, like a postman delivering letters. It means some positive act by which the person signing or sealing the deed indicates his intention to be bound by it. It can (and often does) take the form of physical handing over to the other party, but it could also, e.g., take the form of an oral declaration ("I deliver this as my act and deed"). In the case of this deed, which is a deed appointing a receiver, if delivery had taken the form of physical handing-over the person it would have been handed over to is not the owner of the property being taken into receivership, but the receiver being appointed. So this deed may well have been delivered; the OP wouldn't necessarily know because it doesn't have to have been delivered to him. From memory, although I have no cite from this, there is a rebuttable presumption that a document expressed to have been delivered as a deed has been delivered, which if true won't help the OP.

As for sealing, as Mr. Incognito points out a company seal usually takes the form of a physical impression which won't show up on a photocopy. When making a copy of a sealed document it's usually to mark the location of the seal with the letters "L.S." (for locus sigilli, the location of the seal) and if this wasn't done in the copy given to the OP that's sloppy, but it doesn't affect the validity of the original deed.

omnithanos · 27-01-2015 11:22AM

Then there's the question of the deed having to be countersigned by the EBS as was laid out in their memorandum of rules.

Countersigned meaning writing a second signature on a document.

This obviously means that the EBS were obliged to put two signatures on the document in order to validate it.

A seal is not a signature and therefore you cannot countersign a seal.

Their firm of Solicitors eventually wrote to me falsely declaring that my objection to the validity of the deed was predicated on the fact that it was not countersigned by two members of the EBS.

I never said this, I said it was not signed by two members of the EBS and therefore invalid.

They didn't even advise me that there was a seal on the original when I brought it to their attention. Producing a document with a seal in evidence after the transfer of title doesn't prove that the seal was present before the tranfer.

whippet · 27-01-2015 12:25PM

where are you getting the idea that there is a requirement from EBS to have two EBS signatures?

This is legal advise territory you are in at the moment and if you are not happy with the current advice you are getting I would suggest engaging a second solicitor.

omnithanos · 27-01-2015 12:53PM

The memorandum of rules of the EBS clearly and unambiguously state that the deed should be Countersigned by the EBS.

These rules were obtained by me from the central bank.

My own Solicitor brought the fact to my attention that there was no seal on the deed and that it was his opinion that there should usually be two EBS signatures before I went and obtained these rules.

My Solicitor did not act on this information so I took it upon myself to write to the banks Solicitor after the bank and then the solicitor for the Receiver (who was also acting for the bank) contacted me about purchasing the contents of the property. Then their Solicitor, while acknowledging receipt by replying to said letter, ignored my comments about the deed.

My own Solicitor then represented me in a judgement hearing (which I was not obliged to attend) which ordered me to provide the bank with a statement of affairs by a certain date but my Solicitor did not bring the judgement to my attention and I had the court order delivered to me at my house after the date to provide the information had passed with a penal endorsement added across the front in red, warning that I could go to jail if I did not comply.

I'm looking for general advice here as my experience with Solicitors has not been favorable thus far. Someone must be able to give an opinion as to whether the stated rules mean that the document must be signed by two members of the EBS in order to be validly executed as is my understanding. I do not believe it is possible to countersign a seal as a seal is not a signature.

whippet · 27-01-2015 01:28PM

omnithanos wrote: »

The memorandum of rules of the EBS clearly and unambiguously state that the deed should be Countersigned by the EBS.

Someone must be able to give an opinion as to whether the stated rules mean that the document must be signed by two members of the EBS in order to be validly executed as is my understanding. I do not believe it is possible to countersign a seal as a seal is not a signature.

nowhere have you shown that the document need 'two' signatures from EBS, if you can show where exactly it states that two EBS signature are required.

Saying that it needs to be countersigned isn't the same as saying it needs two EBS signatures.

omnithanos · 27-01-2015 01:52PM

Countersigned means writing a second signature on a document so if the rules state that the document needs to be countersigned by the EBS surely it follows that it needs two EBS signatures.

For the avoidance of doubt the newer memorandum of rules of the EBS clearly state that a deed needs two EBS signatures presumably because people didn't understand what the word countersign meant.

I went into Easons yesterday and the law dictionary they had there didn't even have the word countersign in it.

omnithanos · 27-01-2015 01:53PM

The legal definition of the word countersign according to Webster's Law Dictionary states the word countersign means to sign one's own name next to one's own or someone else's to authenticate, reinforce or verify the first signature.

whippet · 27-01-2015 02:14PM

omnithanos wrote: »

The legal definition of the word countersign according to Webster's Law Dictionary states the word countersign means to sign one's own name next to one's own or someone else's to authenticate, reinforce or verify the first signature.

you still haven't shown me where it says that it requires 'two EBS signatures'

I think you are looking for loopholes that are not there to remedy a situation you find yourself in. It seems that your solicitor didn't agree with you either.

Sometimes people put hope in places where none should exist; there have been plenty of cases recently where people are using questionable legal reasoning and perceived paperwork errors to have debts etc quashed and failing .. racking up considerable legal expenses in the process.

As stated before, you should get advice from a qualified legal professional and should they agree you then have the option of arguing in front of a court.

I would stress qualified legal professional as there are some groups with no legal background at the moment who are dishing out some very questionable legal advise.

omnithanos · 27-01-2015 02:40PM

I've just given you the legal definition of the word countersign which explains why two signatures were necessary.

Why do you keep insisting that I haven't shown you why two signatures are necessary?

What is your understanding of the word countersign?

How is it possible for one person to countersign a document?

It was my solicitor who brought the point about the signature to my attention before I went and sourced the memorandum and rules. The reason he did not follow it up after was because he only noticed this after we were taken to the high court which meant that he was negligent in that he hadn't read my file beforehand.

The transfer of the property went through before the judgement and the fact that the land registry sent me a copy of the instrument of sale shows that the transfer did not follow due process irrespective of whether the deed of appointment was valid.

We sent the copy of the instrument to my solicitor but when we asked for it to be returned after he had just sat on it he did nothing so we ended up having to request a second copy from the land registry.

whippet · 27-01-2015 02:44PM

omnithanos wrote: »

I've just given you the legal definition of the word countersign which explains why two signatures were necessary.

Why do you keep insisting that I haven't shown you why two signatures are necessary?

Countersign does mean two signatures; but nowhere have you shown me does it require two signatures from EBS?

omnithanos wrote: »

It was my solicitor who brought the point about the signature to my attention before I went and sourced the memorandum and rules. The reason he did not follow it up after was because he only noticed this after we were taken to the high court which meant that he was negligent in that he hadn't read my file beforehand.

Have you made a complaint to the Law Society? Surely this was your first step when you decided your solicitor was negligent?

omnithanos wrote: »

The transfer of the property went through before the judgement and the fact that the land registry sent me a copy of the instrument of sale shows that the transfer did not follow due process irrespective of whether the deed of appointment was valid.

We sent the copy of the instrument to my solicitor but when we asked for it to be returned after he had just sat on it he did nothing so we ended up having to request a second copy from the land registry.

Speak to another solicitor and get their opinion - you won't get it here and they are best placed to help.

Mr. Incognito · 27-01-2015 03:23PM

http://www.prai.ie/receivers-deeds-of-appointment-legal-office-notice-62014/

http://www.prai.ie/transfers-of-registered-land/#16

16. Sealing of Deeds

Sealing by an individual is not required for conveyances or transfers executed on or after 1st December 2009, section 64 of the Land and Conveyancing Law Reform Act 2009).

On a disposition by a company where the seal appears to have been affixed in the presence of and attested by the secretary, deputy secretary or a member of the board of directors, this may be taken as sufficient evidence of due execution. (Rule 74, Land Registry Rules 2012.)

Property Registration Authority
01 December 2009
Updated 16 April 2013

omnithanos · 27-01-2015 03:26PM

The memorandum of rules of the EBS state that it has to be countersigned by the EBS meaning two signatures from the EBS.

I am about to write to their solicitor to warn him that I am to report him to the law society for suspected fraudulent possession of my property (which is what I was trying to tease out here, for having a conflict of interest (the EBS told me they were privy to drafts of documents to be sent to me by the Receivers solicitor who were one and the same) and for unprofessional conduct which is explained below:

I was told my contents were valued at €30,000 but that they would only be giving me €25,000 as the management company had put €5,000 worth of contents in. I made them aware that as the building had full occupancy when the so called Receiver took over management that I should get the full amount. I also made them aware that I had photographic evidence of the so called Receivers agents disposing of said €5,000 worth of MY contents without asking or informing me. These contents were thrown out because the management company had caused flooding by not clearing the drains when they were urgently advised to do so about 4 weeks before the flooding occurred. They then stored the contents of the upstairs Apartments (wardrobes, chairs, fridges, ovens, tables etc.) which they moved the people from downstairs into on the corridors until I reported this fire hazzard to the bank and they then disposed of them quickly in a skip to remove the evidence. I was told I could either agree to the €25,000 and collect the cheque within 3 days or the contents would be put in storage at my expense giving me no option but to accept under duress. I agreed to the €25,000 which could only logical be considered as payment for the REMAINING contents as it was an impossibility to sell or put the contents they had already dumped into storage. A schedule of contents was attached to the receipt which could not have included those contents which had already been disposed of. I lodged my cheque and them went back for my rightful €5,000 as compensation for the dumped contents as the full contentsof the premises were valued by them at €30,000 and they have kept fobbing me saying they had already dealt with it which is unprofessional conduct as it is taking an unfair advantage over me in favour of his client.

The so called Receiver did not make any insurance claim on the flooding because he was negligent. He actually put the lives of the Tenants at risk if a fire broke out and his agents left the front gate, which could have crushed a child to death had it fallen, hanging off it's hinges for a period of no less than 13 days. He explained that this was done so that repairs could be made which is not plausible. There were break ins etc. in the month before this because the front gate would not close at all. He also arranged for the locks to be changed on one of the Apartments while the Tenant was in the process of moving out. This was before I had agreed that he could take possession of the Apartment and before the High Court hearing. He agents also contravened section 9 of the residential tenancies act by charging current Tenants higher than market level rent on new contracts (identical side by side Apartments with different rents for the same period).

We wrote to the so called Receiver in February 2014 for an explanation which included photographic evidence of his negligence and he still hasn't replied. I have made his Solicitor aware that he has not replied and the Solicitor has made no comment.

The bank are forcing me to sell another property but when I told them the last offer that was put in they dithered for over a month before they replied and the potential purchaser removed his offer. I'm wondering if it was the bank who put in the offer to check if I would advise them of it. Why else would they take so long?

whippet · 27-01-2015 03:42PM

dude .. seriously; get a legal representative on board. Sounds like you are in way over your head and need proper advice.

... just to highlight something to show that your apparent legal knowledge isn't up to scratch - you are accusing someone of breaching an Act .. however charging two different tenants different rent isn't illegal!!!

Mr. Incognito · 27-01-2015 03:48PM

omnithanos wrote: »

The memorandum of rules of the EBS state that it has to be countersigned by the EBS meaning two signatures from the EBS.

I am about to write to their solicitor to warn him that I am to report him to the law society for suspected fraudulent possession of my property (which is what I was trying to tease out here, for having a conflict of interest (the EBS told me they were privy to drafts of documents to be sent to me by the Receivers solicitor who were one and the same) and for unprofessional conduct which is explained below:

I was told my contents were valued at €30,000 but that they would only be giving me €25,000 as the management company had put €5,000 worth of contents in. I made them aware that as the building had full occupancy when the so called Receiver took over management that I should get the full amount. I also made them aware that I had photographic evidence of the so called Receivers agents disposing of said €5,000 worth of MY contents without asking or informing me. These contents were thrown out because the management company had caused flooding by not clearing the drains when they were urgently advised to do so about 4 weeks before the flooding occurred. They then stored the contents of the upstairs Apartments (wardrobes, chairs, fridges, ovens, tables etc.) which they moved the people from downstairs into on the corridors until I reported this fire hazzard to the bank and they then disposed of them quickly in a skip to remove the evidence. I was told I could either agree to the €25,000 and collect the cheque within 3 days or the contents would be put in storage at my expense giving me no option but to accept under duress. I agreed to the €25,000 which could only logical be considered as payment for the REMAINING contents as it was an impossibility to sell or put the contents they had already dumped into storage. A schedule of contents was attached to the receipt which could not have included those contents which had already been disposed of. I lodged my cheque and them went back for my rightful €5,000 as compensation for the dumped contents as the full contentsof the premises were valued by them at €30,000 and they have kept fobbing me saying they had already dealt with it which is unprofessional conduct as it is taking an unfair advantage over me in favour of his client.

The so called Receiver did not make any insurance claim on the flooding because he was negligent. He actually put the lives of the Tenants at risk if a fire broke out and his agents left the front gate, which could have crushed a child to death had it fallen, hanging off it's hinges for a period of no less than 13 days. He explained that this was done so that repairs could be made which is not plausible. There were break ins etc. in the month before this because the front gate would not close at all. He also arranged for the locks to be changed on one of the Apartments while the Tenant was in the process of moving out. This was before I had agreed that he could take possession of the Apartment and before the High Court hearing. He agents also contravened section 9 of the residential tenancies act by charging current Tenants higher than market level rent on new contracts (identical side by side Apartments with different rents for the same period).

We wrote to the so called Receiver in February 2014 for an explanation which included photographic evidence of his negligence and he still hasn't replied. I have made his Solicitor aware that he has not replied and the Solicitor has made no comment.

The bank are forcing me to sell another property but when I told them the last offer that was put in they dithered for over a month before they replied and the potential purchaser removed his offer. I'm wondering if it was the bank who put in the offer to check if I would advise them of it. Why else would they take so long?

I'm sorry but what are you looking for here?

This really should be in personal issues or ranting and raving.

While I am sure this is very important to you in your life I would suggest perhaps counselling or speak to someone in your life such as a partner who can sympathise with you.

People cannot answer any questions here in relation to your own particular circumstances and there are appropriate mechanisms if you feel that something was done illegally or you were treated unprofessionally, which again, no-one can answer here.

All the above is not a legal issue.

The Memorandum of Agreement of EBS requirements is nothing that anyone can advise you on.

You highlighted that a Deed has to be countersigned. It doesn't according to the Land Registry rules.

It appears you borrowed money you could not repay. That's unfortunate but grasping around to challenge illegalities of receiver appointments and blaming EBS etc isn't going to make these issues evaporate.

I don't really think you are going to get what you are looking for here.

omnithanos · 27-01-2015 04:17PM

In relpy to Whippet it is a breach of section 9 of the residential tenancies act to charge someone a higher rent on a new contract then you have currently advertised for an identical Apartment. You cannot charge an existing Tenant an amount in excess of the current market value on a new contract and that's a fact. If the market goes down you should bring your rent down when the term of the contract ends.

I am just looking for opinions here. I'm getting into too much detail now but I want to see if my reading of the situation is correct before I send my letter to the Solicitor.

I do not understand why my interpretation of The Memorandum of Agreement of EBS requirements is something that nobody can advise me on. It seems perfectly straightforward to me countersigned by the EBS either means 2 EBS signatures or it doesn't.

It's also perfectly simple for someone to give an opinion on whether they feel I should have been paid the full €30,000 or not.
I can made up an analogy with Roy Keane eating someones mars bars if that helps.

It feels like the legal world has never encountered the word countersign before. I merely wish to get a few opinions before I send off my letter to the firm of Solicitors who have been fobbing me off for the past four years. My Solicitor seems to have blanked me in order to save his own hide. He actually asked for more money when he saw my statement of affairs which made reference to a boat, as the scope was 5 years, this boat was not in our possession when we agreed fees but he tried to claim I had withheld it from him, He's not only negligent, he's greedy. If I were getting any advice now I'd go free cos my impression of them is not very high. The other sides barrister was even telling porkies saying that the Receiver never threatened anyone with eviction when I had seen the notes going round. I don't like that defending barrister on Broadchurch either. I just don't like banks and legal people getting away with lies. I do own the money but I did not make the investment myself it was just put into my name and I was never privy to how much the repayments were going to be.

FreudianSlippers · 27-01-2015 04:20PM

Closed pending review.

FreudianSlippers · 28-01-2015 02:50PM

Having reviewed the thread, although the OP claims that they are looking to engage in a legal discussion regarding the term/concept of "countersigning", in reality the whole issue skirts too close to the OP's real-world problem (for which they have already engaged a solicitor).

For that reason, the entire thread/discussion is flying far too close to the sun vis-à-vis the no legal advice rule; thread remains closed.

Acquisition & transfer of property with no evidence of valid appointment of Receiver

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