Lodging a Mortgage for a Private Lender Mortgagee

[AnnH]

We act for a private lender/mortgagee. The borrower/mortgagor is unrepresented. We have a paper mortgage physically signed by both the mortgagor and mortgagee.

We understand that to lodge the Mortgage, we then must create a separate electronic mortgage on PEXA. According to NSW LRS, the usual process for banks is that the bank signs the mortgage document in PEXA and certifies that they hold a paper counterpart of the mortgage document that is wet signed by the customer (http://rg-guidelines.nswlrs.com.au/e-dealings/elodgment/elodgment_requirements/signing_electronic_do... ). Similarly, on Page 6 of ARNECC’s National Mortgage Form Design Specification v1.5 it specifies that a ‘certification is added to [the electronic] Mortgage that the mortgagee holds a mortgage granted by the mortgagor on the same terms as the electronically lodged mortgage.’

1. Please confirm that the the borrower/mortgagor does not need to sign the electronic Mortgage on PEXA and as such that the mortgagor does not need to be represented. 
2. Please confirm that only we, as the legal representative of the mortgagee, are required to sign the electronic Mortgage and that our signature merely certifies the following:

• The Subscriber has retained evidence supporting the Mortgage document;
• The Subscriber has taken reasonable steps to ensure that the Mortgage is correct and compliant with relevant legislation and any Prescribed requirement;
• The Subscriber, or the Subscriber is reasonably satisfied that the mortgagee it represents: (a) has taken reasonable steps to verify the identity of the mortgagor; and (b) holds a mortgage granted by the mortgagor on the same terms as the [electronic] Mortgage.

1.  Please confirm that only we, as the legal representative of the mortgagee, are required to sign the CoRD Holder Consent and that our signature merely certifies the following:

• The Subscriber has retained evidence supporting the Consent
• The Subscriber has taken reasonable steps to ensure that the Consent is correct and compliant with relevant legislation and any Prescribed Requirement

Thank you.

[CateBarnes]

Hi Ann,

Your understanding is correct. 

Just to further add, the below execution clause appears on the Mortgage and Cord Holder Consent documents and outlines specifically what you are certifying.

Mortgage:

The Certifier, or the Certifier is reasonably satisfied that the mortgagee it represents,:
(a) has taken reasonable steps to verify the identity of the mortgagor; and
(b) holds a mortgage granted by the mortgagor on the same terms as this Registry Instrument or Document.
The Certifier has taken reasonable steps to ensure that this Registry Instrument or Document is correct and compliant with relevant legislation and any Prescribed Requirement.
The Certifier has retained the evidence supporting this Registry Instrument or Document.
The Certifier holds a properly completed Client Authorisation for the Conveyancing Transaction including this Registry Instrument or Document.
The Certifier has taken reasonable steps to verify the identity of the mortgagee.

Cord Holder Consent:

I certify that:
1. The Certifier has taken reasonable steps to ensure that this Registry Instrument or Document is correct and compliant with relevant legislation and any Prescribed Requirement.
2. The Certifier has retained the evidence supporting this Registry Instrument or Document.
3. The Certifier holds a properly completed Client Authorisation for the Conveyancing Transaction including this Registry Instrument or Document.
4. The Certifier has taken reasonable steps to verify the identity of the applicant.

Thanks,

Cate

[AnnH]

Dear Cate

Apologies for the late response. 

Just for clarity, can we (as the legal representative for the Incoming Mortgagee), prepare and sign the CoRD Holder Consent for the purpose of lodging the standalone Mortgage (we hold the original unencumbered paper Certificate of Title with the CAC)? 

If we cannot, does that mean that the registered proprietor/mortgagor has to be represented?

Thanks,

Ann

[RupertSu]

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@AnnH wrote:

Dear Cate

Apologies for the late response. 

Just for clarity, can we (as the legal representative for the Incoming Mortgagee), prepare and sign the CoRD Holder Consent for the purpose of lodging the standalone Mortgage (we hold the original unencumbered paper Certificate of Title with the CAC)? 

If we cannot, does that mean that the registered proprietor/mortgagor has to be represented?

Thanks,

Ann

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Wouldn't the CoRD Holder Consent only apply to eCT transactions? In this case, as a Private (non-ADI) Lender, NSWLRS would still issue the pCT to you (as party lodging the dealings on behalf of the Mortgagee) and no CoRD would necessarily need to be lodged until such time as you would want to lodge another dealing on the title.

[AnnH]

Dear Rupert

We understand that in NSW, standalone Mortgages now must be lodged electronically via PEXA (regardless of whether there is a paper CT or eCT). 

As such, our issue is that the registered proprietor/mortgagor is currently unrepresented and has given to us the unencumbered paper CT for the purpose of registering our private lender client's mortgage. However, the CoRD Holder is generally the registered proprietor/mortgagor who we do not represent and as such, we assume we cannot prepare and sign the CoRD Holder Consent.   

[RupertSu]

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@AnnH wrote:

Dear Rupert

We understand that in NSW, standalone Mortgages now must be lodged electronically via PEXA (regardless of whether there is a paper CT or eCT). 

As such, our issue is that the registered proprietor/mortgagor is currently unrepresented and has given to us the unencumbered paper CT for the purpose of registering our private lender client's mortgage. However, the CoRD Holder is generally the registered proprietor/mortgagor who we do not represent and as such, we assume we cannot prepare and sign the CoRD Holder Consent.   

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My apologies Ann, I thought you meant post-settlement CoRD. In this case, if you're lodging the CoRD Holder Consent for the registered proprietor, aren't you putting out that you're representing the RP for the refinance and completing all the necessary VOI etc as the RP's rep? Apologies, I don't have an answer for you - more looking at this with an interest in the procedure. I've never lodged a CoRD before but I assume you would be able to lodge one on behalf of the RP if you're agreeing to all the certifications on the execution clause. Might need to be a new workspace if it's done through PEXA.