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Mortgages.

The editor of this section of the site is Nigel Clayton of Kings Chambers, Leeds and Manchester. Nigel also maintains the specialist website dealing with mortgages at www.legalmortgage.co.uk

There are three cases this month:
  • Failure to discharge burden of proof on application to alter register
  • Refusal to set aside a settlement agreement involving the grant of new mortgage facilities despite not stipulating dates for repayment
  • Refusal to stay execution of an order for possession pending a separate claim for damages
Land registration

Alteration of register and forgery

Morris v Godiva Mortgages Ltd
[2017] UKUT 44 (TCC)

Summary

Former registered proprietors applied for alteration of the register in consequence of what was alleged to have been a forged TR1, and also for alteration of a subsequent registered charge to restrict the amount to the amount paid in discharge of their previous mortgage. On appeal the Upper Tribunal found that the first instance judge was entitled to find that the applicants had failed to discharge the burden of proof.

More details

At first instance, the Tribunal Judge rejected the application based on the evidence, but in doing so he directed the hearing to continue notwithstanding the unavailability of a particular witness to attend at an adjourned hearing. On appeal, the Upper Tribunal concluded that the non-attendance of the particular witness made no difference. He was under no obligation to attend. He did not have to prove that the TR1 was genuine; it was for the applicants to prove it was a forgery. The applicants appealed to the Upper Tribunal.

The Upper Tribunal dismissed the appeal. The first instance judge was entitled to find, on the weight of the evidence, that the applicants came nowhere near discharging the burden of proof. The applicants’ questions in cross-examination (which they produced on appeal) would not have made any difference.

The Upper Tribunal did however express some concern that at the close of the hearing, the judge invited the parties to make written submissions on an alternative ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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