Question on Bank Appointed Receivers

AustinB

I have a question in relation to the Appointment by Deed of Receivers by a Bank?
Firstly a couple of notes:

The Land & Conveyancing Law Reform Act 2009 states at Section 64 (2)(b)(ii) that:
An instrument executed after the commencement of section 64 is a Deed if it is executed in the following manner, if made by a company registered in the State, it is executed under the seal of the company in accordance with its Articles of Association.

The Bank, in its Articles of Association state that:
A seal shall be used only by authority of the Directors or by a Sealing Committee authorised by the Directors on that behalf and every instrument to which the seal shall be affixed shall be signed by any two Directors or Director and Secretary or any two members of such Sealing Committee or any two members in a combination of the foregoing......

I think I am correct in taking from the above, so far that, a Deed of Appointment of a Receiver by a Bank would require the Two Signatories and the Company Seal, any objections?

So, now I come to what the Bank does in the course of its ordinary business in relation to Appointing Recievers:

The Power of Attorney granted by the Mortgagor in the Security document (legal charge) is donated by the Bank to an individual in the bank (generally) who then relies on the following section 64 (2)(b)(i)(1) of the 2009 Act which basically provides that a deed is a deed when executed under this section by an individual it has the same effect as if the document was executed under seal.

So, the first of my questions is:
Why does the Bank not simply execute the Deed under Seal, why does it insert a middleman in the form of the Bank individual to execute the Deed without a seal and the required signatories?
and:
By using the Bank individual to create the Deed of Appointment I accept that the Bank is may be compliant with Law but is it no contravening its own Articles of Association.
I would also have serious reservations with the Bank granting POA to another individual, the security charge indicates that the original POA was granted to the Secretary of the Bank!
All thoughts welcome.

AustinB

Amazing, the lack of response speaks volumes!
Anybody at all got a comment on this?

Pro Hoc Vice

http://courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/36a33d5cddd8a6eb80257b4a0051a4da?OpenDocument

Knock yourself out.

Pro Hoc Vice

AustinB wrote: »

I have a question in relation to the Appointment by Deed of Receivers by a Bank?
Firstly a couple of notes:

The Land & Conveyancing Law Reform Act 2009 states at Section 64 (2)(b)(ii) that:
An instrument executed after the commencement of section 64 is a Deed if it is executed in the following manner, if made by a company registered in the State, it is executed under the seal of the company in accordance with its Articles of Association.

The Bank, in its Articles of Association state that:
A seal shall be used only by authority of the Directors or by a Sealing Committee authorised by the Directors on that behalf and every instrument to which the seal shall be affixed shall be signed by any two Directors or Director and Secretary or any two members of such Sealing Committee or any two members in a combination of the foregoing......

I think I am correct in taking from the above, so far that, a Deed of Appointment of a Receiver by a Bank would require the Two Signatories and the Company Seal, any objections?

So, now I come to what the Bank does in the course of its ordinary business in relation to Appointing Recievers:

The Power of Attorney granted by the Mortgagor in the Security document (legal charge) is donated by the Bank to an individual in the bank (generally) who then relies on the following section 64 (2)(b)(i)(1) of the 2009 Act which basically provides that a deed is a deed when executed under this section by an individual it has the same effect as if the document was executed under seal.

So, the first of my questions is:
Why does the Bank not simply execute the Deed under Seal, why does it insert a middleman in the form of the Bank individual to execute the Deed without a seal and the required signatories?
and:
By using the Bank individual to create the Deed of Appointment I accept that the Bank is may be compliant with Law but is it no contravening its own Articles of Association.
I would also have serious reservations with the Bank granting POA to another individual, the security charge indicates that the original POA was granted to the Secretary of the Bank!
All thoughts welcome.

If the contract allows a deed of appointment to be made under hand then no need to have a deed sealed.

nuac

Thanks Infosys for that

Enjoylife

Can anyone point us to a definition of 'under hand'.

Pro Hoc Vice

Enjoylife wrote: »

Can anyone point us to a definition of 'under hand'.

http://www.collinsdictionary.com/dictionary/english/underhand

If you are looking for a statutory definition I doubt you will find it, same for a judicial definition. I believe must legislation a and judges would think the phrase does not need definition.

Enjoylife

Sorry, my irony may have been lost.

My request for a definition of 'under hand' relates to the subject under review, being the Appointment by Deed of Receivers by a Bank.

The degree of same is interpretive, given that the initial request for assistance, exhibited a unique insight.

I have sent you a PM, AustinB.

Pro Hoc Vice

Enjoylife wrote: »

Sorry, my irony may have been lost.

My request for a definition of 'under hand' relates to the subject under review, being the Appointment by Deed of Receivers by a Bank.

The degree of same is interpretive, given that the initial request for assistance, exhibited a unique insight.

I have sent you a PM, AustinB.

Sorry missed that (I feel silly now), in the context of this discussion a deed can be either under seal (sealed with the company seal and signed by director and secretary usually, or under hand which means simply signed by the appointed person maybe a employee or agent.

Section 24 of the Conveyancing Act 1881,


24.—(1.) A mortgagee entitled to appoint a receiver under the power in that behalf conferred by this Act shall not appoint a receiver until he has become entitled to exercise the power of sale conferred by this Act, but may then, by writing under his hand, appoint such person as he thinks fit to be receiver.

The above was repealed and replaced by the following, http://www.irishstatutebook.ie/2009/en/act/pub/0027/sec0108.html#sec108

Marcusm

Under hand as opposed to made under seal

Basically it means that the document has been signed and this is sufficient for it to be acceptable/binding and does not require the seal of the company to be applied to the document.