# Solicitor didn't comply with undertaking - whose fault?



## SN9 (20 Oct 2011)

Hi

Can anyone tell me if your solicitor is acting as your agent during conveyencing work?  I.e. am I responsible if he does something wrong, or is he?

Thanks!


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## mf1 (20 Oct 2011)

It's not clear what you are asking. 

If a solicitor gave an undertaking on your behalf, then presumably it was on your instructions? Or are you saying that s/he gave an undertaking which you did not instruct them to give?

What was done wrong? Only when you tell us what the issue actually is , can anyone give you a meaningful answer.

It is worth remembering that a solicitor represents you in something that is happening to you - it is seldom personal to the solicitor. 

mf


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## SN9 (20 Oct 2011)

sorry for not being clear.  when drawing down a mortgage to buy my house, my solicitor gave an undertaking to the bank that he would deliver deeds and a stamped & registered mortgage to my mortgage bank.  I did not ask him to do this.  I also did not ask the bank to accept any undertaking (I wasn't aware of it!).  I believe accepting such undertakings was common practice during the boom.
deeds are missing and I don't know if registration has been carried out - this is another, separate, serious, issue.
however the bank are saying that we are in breach of our mortgage t&cs and that we need to go in to discuss our financial position.  this seems to be a veiled reference to us possibly losing our tracker mortgage.  
obviously we're doing our best to get this sorted out, but I was just wondering if the bank really do have any come-back at us, or are they just scaremongering?


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## millieforbes (20 Oct 2011)

SN9 said:


> when drawing down a mortgage to buy my house, my solicitor gave an undertaking to the bank that he would deliver deeds and a stamped & registered mortgage to my mortgage bank.  I did not ask him to do this.  I also did not ask the bank to accept any undertaking (I wasn't aware of it!).  I believe accepting such undertakings was common practice during the boom.



yes, this was common practice and the customer ultimately might never be aware of the process unless something goes wrong

Have you been in contact with your solicitor? Who told you the deeds were missing?


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## mf1 (21 Oct 2011)

Are you paying your mortgage? Are you in arrears? 

If you have no financial worries and are paying your debts , then you have nothing to worry about. 

If your deeds are missing and if your solicitor failed to comply with their undertaking (which, it is now clear was the very standard undertaking to stamp and register title and mortgage- you would not have got your money otherwise) then take it up with the Law Society. 

It is quite simple to  find out if your title is registered. Another solicitor will organise a search for you. 

mf


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## huskerdu (21 Oct 2011)

As MF1 has pointed out, the undertaking the Solictor  made to the bank, is standard for all mortgages., not just " during the boom" as you put it. 

The mortgage providers will not give you the cheque to buy the house without being sure that the money will be used to buy the house and that the mortage will be attached to the deeds of the house. A solicitor gives an undertaking that this will happen and has indemnity insurance  to protect the mortgage company and the purchaser in case anything goes wrong. 

If the solicitor has failed in this undertaking, you need to make an official complaint to the Law Society. 

You should follow up with the bank. It isn't the first time that this has happened and the bank are right to follow it up and cant blame you personally.


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## ClubMan (21 Oct 2011)

First things first - ask the solicitor about it in case it's a simple error/omission on their part. Mistakes can happen. Once you do that, if there's more to it then take it from there...


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## onq (21 Oct 2011)

SN9 said:


> deeds are missing and I don't know if registration has been carried out - this is another, separate, serious, issue.



This is the second thread I have seen recently referring to a matter of missing deeds - the other thread is here.
Prior offences by solicitors before Irish courts involve raising two mortgages on properties.

 It might be very important you move to fine out what was done with these deeds.
Contact the Incorporated Law Society - they are helping in above thread.


ONQ.

  All advice on AAM is remote from the situation and cannot be relied     upon                                                as a defence or     support -    in     and    of        itself  -         should           legal           action        be           taken.
  Competent legal and building professionals should be asked to advise in                                                    Real Life with rights    to        inspect     and       issue         reports    on     the               matter     at  hand.


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## SN9 (21 Oct 2011)

Solicitor is no longer in practice, and the Law Society are now looking after his files.  They haven't found our file yet, but they are being very helpful. 

I think Huskerdu has replied to my original question - ie. can the bank hold us responsible for the solicitor's action.  If we cannot be held in breach of our terms and conditions, then they can't take away our tracker!

Can anyone confirm that that's definitely the case?

Thanks for everyone's help so far


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## onq (21 Oct 2011)

The solicitor is acting as your agent.
You are not remote from his inefficiency or incompetence.
Under normal circumstance his omission might have resulted in you not getting the mortgage.

However the issue here is that the Bank issued the mortgage in the absence of all the correct paperwork.
Banks are now trawling their files to ensure everything is perfectly compliant and files like yours raise a red flag.

They are trying to blame you for their lack of diligence in managing the file - in theory you should not have gotten the mortgage until the documents were in place.
The bank has therefore been too lenient with you under its own terms of reference and is hoping to resolve an ongoing irregularity with your mortgage/loan account.
However they unless on the face of it it would appears that they were willing to lend you the mortgage despite the shortcoming on the documentation, which you did not cause.

Quite apart from your solicitors liability for all of this should it fall out badly for you, I think the bank is hoist by its own petard.
No one forced it to lend in the absence of the documents, so they seem to be the party not in compliance with their own procedure.

As to what the Bank can and cannot do, this is bound up in the terms of the contract and court precedent.
What I've offered above is a laymen's interpretation of the facts and what can be reasonably inferred from the facts.
Its not a definitive answer and you shouldn't be seeking definitive advice here - you need to talk to a solicitor in Real Life.


ONQ.

  All advice on AAM is remote from the situation and cannot be relied      upon                                                as a defence or      support -    in     and    of        itself  -         should            legal           action        be           taken.
  Competent legal and building professionals should be asked to advise  in                                                    Real Life with  rights    to        inspect     and       issue         reports    on      the               matter     at  hand.


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## Mrs Vimes (21 Oct 2011)

SN9 said:


> my solicitor gave an undertaking to the bank that he would deliver deeds and a stamped & registered mortgage to my mortgage bank.





onq said:


> They are trying to blame you for their lack of diligence in managing the  file - in theory you should not have gotten the mortgage until the  documents were in place.




The deeds would not be transferred nor would a stamped and registered mortgage be possible without the money being released so not sure how the bank was at fault here?


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## SN9 (21 Oct 2011)

Mrs Vimes said:


> The deeds would not be transferred nor would a stamped and registered mortgage be possible without the money being released so not sure how the bank was at fault here?



oh good point I didn't think of that.. thanks


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## SN9 (21 Oct 2011)

though they might have been a little at fault for not letting me know that there was a problem for 3 years, during which time the solicitor has disappeared!


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## Mrs Vimes (22 Oct 2011)

It can take many months for the stamp duty and land reg to be completed so even with few delays on the solicitor's side it wouldn't necessarily raise a red flag at the bank.

I believe banks are now all going through their undertakings files to ensure they have been complied with - something that many were lax with in the past few years.

The Law Society will in due course tell you to appoint another solicitor (at their expense usually) to complete the registration, etc.

Worst case scenario is that your solicitor was one of the seriously crooked ones and there are a number of mortgages on your property. Even in this case their professional indemnity insurance will cover the costs so don't worry.

Sybil


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## onq (22 Oct 2011)

Mrs Vimes said:


> The deeds would not be transferred nor would a stamped and registered mortgage be possible without the money being released so not sure how the bank was at fault here?



Thanks for the correction Sybil, but my understanding was that it was the other way around - I wouldn't have though that the monies would be released without the paperwork being forwarded.

Is the dealing resting totally on the undertaking of the solicitor at this point?


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## Mrs Vimes (22 Oct 2011)

But you can't register a mortgage or stamp deeds on a property you don't own and you don't own the property until you have paid for it so the other way is not possible.

Not sure what you mean by the dealing resting on the solicitor's undertaking but part of what the solicitor is paid to do is to sort out the post-closing paperwork - stamping and registering deeds and then forwarding the deeds to the bank. The sale is already closed before these steps can be taken.


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## onq (22 Oct 2011)

Okay, happy to stand corrected on that, Sybil. Makes sense. 

"Undertaking" may not be the appropriate term.

People "trust" the solicitor to handle this.


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## Mrs Vimes (22 Oct 2011)

Yes, you do have to trust the solicitor to complete the conveyance, which works fine most of the time.

Insurance is there to cover the times the trust is breached.


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## 44brendan (22 Oct 2011)

This is now a very common problem for Banks. We have an inordinate number of loans out against solcrs LU's & as per OP's comment some of these solicitors have been less than diligent in their approach. So who is at fault. So far we have not progressed too far with responsibility. I.e. the solicitor in this instance would be acting for both the Bank and the client in this transaction. This was poor practise but again done to "save time" and money. OP I would have no worries about this issue. The Bank accepted the solcrs LU and your responsibility ceased at that point. Yes where possible you should co-operate in any documentation that requires completion but it is the responsibility of the Bank to address the issues of the charge completion with the law society.


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## Bronte (24 Oct 2011)

I see no problem with the current arrangment.  A solicitor undertakes to register the property and register the mortgage.   If the solicitor does not do this than the Law Society can be contacted to see what has gone wrong.  Some solicitors are negligent and there were (are ?) long delays in the Land Registery as they have a new system (mapping etc) so that could be a simple explaination. 

OP has not done anything wrong, it is not his business to have anything to do with the registration and his first post of call is to the solicitor who did the conveyance to get proof that the property was registered.  It is entirely possible that the bank lost the deeds?  Not common, but it does happen.  

As an aside, it's strange that there are 3 threads on this currently.  Is it the same solicitor?


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