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MORTGAGES II

MORTGAGES II. Jan Cookson. A LEGAL MORTGAGEE’S REMEDIES. 1. POWER OF SALE 2 FORECLOSURE 3. APPOINTMENT OF A RECEIVER 4. SUE ON MORTGAGOR’S COVT.TO REPAY. THE MORTGAGEE’S STATUTORY POWER OF SALE. IN ORDER FOR THE MORTGAGEE TO SELL USING ITS STATUTORY POWER:-. THE POWER

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MORTGAGES II

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  1. MORTGAGES II Jan Cookson

  2. A LEGAL MORTGAGEE’S REMEDIES 1. POWER OF SALE 2 FORECLOSURE 3. APPOINTMENT OF A RECEIVER 4. SUE ON MORTGAGOR’S COVT.TO REPAY

  3. THE MORTGAGEE’S STATUTORY POWER OF SALE

  4. IN ORDER FOR THE MORTGAGEE TO SELL USING ITS STATUTORY POWER:- THE POWER SHOULD HAVE BOTH AND ARISEN (s.101 LPA 25); • BECOME EXERCISABLE • (s.103 LPA 25)

  5. THE MORTGAGEE’S STATUTORY POWER OF SALE ARISES UNDERs.101 LPA 25 IFBOTH THE FOLLOWING CONDITIONS ARE MET:- 1. the mortgage must have been made by deed; & 2. the mortgage money must be due

  6. THE MORTGAGEE’S STATUTORY POWER OF SALE BECOMES EXERCISABLE UNDERs.103 LPA 25 IF ANY OF THE FOLLOWING CONDITIONS ARE MET:- 1. M’ee has served notice on M’or requiring payment of the mortgage money & M’or has failed to pay for 3 months after receiving the notice; or 2. Interest under the mortgage is 2 months or more in arrears; or 3. M’or is in breach of some other covenant in the mortgage deed (i.e. other than repayment of mortgage money or interest )

  7. THE MORTGAGEE’S STATUTORY POWER OF SALE THE IMPACT OF THE MORTGAGEE SELLING:- • Before power of sale has arisen • After arisen but before exercisable • After arisen and exercisable • The position of a purchaser (s.104(2) LPA 25)

  8. Note: there is very likely to beAN EXPRESS POWEROF SALE CONTAINEDIN THE MORTGAGE DEED

  9. IS A COURT ORDER NEEDED BEFORE SALE ? • Horsham Properties Group Ltd v Clark and Beech [2008] EWHC 2327 (Ch) • Mortgages Power of Sale and Residential Property Consultation Paper : Open date: 29 December 2009 Closed date: 28 March 2010 http://www.justice.gov.uk/consultations/docs/mortgagespower-sale.pdf

  10. Horsham Properties Group Ltd v Clark and Beech M. by Clark and Beech to L Default L doesn’t take possession & simply sells to Horsham  No Ct order  No Ct order Ct order but s.36 AJA 70 doesn’t apply Breach of Art.1 ECHR unlawful deprivation of possession? Horsham seeks possession on basis Clark & Beech are now trespassers

  11. THE MORTGAGEE’S CONDUCT OF A SALE

  12. THE NATURE OF A MORTGAGEE’S DUTIES IN THE CONDUCT OF A SALE LEADING CASE: SILVEN PROPERTIES v RBS LTD 2004 1WLR 977 • A MORTGAGEE IS NOT A TRUSTEE OF THE POWER OF SALE FOR THE MORTGAGOR But • MUSTACT IN GOOD FAITH; & • HAS A DUTY AS TO PRICE OBTAINED

  13. WHAT DUTIES EXIST? 1. ?A DUTY TO EXERCISE POWER OF SALE? ‘A mortgagee has no duty at any time to exercise his powers as mortgagee to sell, to take possession or to appoint a receiver and preserve the security or its value or to realise his security. He is entitled to remain totally passive.’ Silven ‘A mortgagee is not a trustee of the power of sale for the mortgagor… [he] is at all times free to consult his own interests alone whether and when to exercise his power of sale…The mortgagee’s decision is not constrained by reason of the fact that the exercise or non exercise of the power will occasion loss or damage to the mortgagor…’ Silven

  14. 2. ?A DUTY AS TO TIMING OF SALE? ‘It is well settled that a mortgagee is not a trustee of the power of sale for the mortgagor. …the mortgagee is entitled to exercise it for his own purposes whenever he chooses to do so. It matters not that the moment may be unpropitious…He has a right to realise his security by turning it into money when he likes’. Cuckmere Brick Co. Ltd Cuckmere Brick Co. Ltd v. Mutual Finance Ltd [1971] Ch 949. China and South Sea Bank Ltd v Tan soon Gin [1990]2 WLR 56

  15. 3. DUTY AS TO PRICE • the mortgagee must ‘take reasonable precautions to obtain • the true market value of the mortgaged property at the date • on which he decides to sell it’Cuckmere Brick Co. Ltd • ?Duty to inform buyers of matters that improve the price? • Cuckmere Brick Co. Ltd. • ?Duty to improve the property or increase its value for sale? • Silven

  16. 4. A DUTY AS TO WHO THE PURCHASER IS? • TO THE MORTGAGEE? • TO AN ASSOCIATED PERSON? • Tse Kwong Lam v. Wong Chit Sen [1983] 1 WLR 1349 • Corbett v Halifax [2003] 4 ALL ER 180

  17. 4. ?A DUTY AS TO PURITY OF MOTIVATION FOR SALE? • Meretz Investments NV v ACP Ltd [2007] Ch.197

  18. THE EFFECT OF A SALE BY A MORTGAGEE

  19. THE EFFECT OF A SALEBY A MORTGAGEEs.104(1) LPA 25 • What estate does the Mortgagee convey? 2. What interests is the sale • subject to? • free from? 3. What happens to Mortgagor’s right to redeem

  20. s.105 LPA 1925 The Mortgagee must apply the sale proceeds to: 1. Pay off any mortgage with priority to which the sale is not made subject 2. Pay costs properly incurred in arranging sale 3. Discharge own mortgage debt 4. Pay any balance to the Mortgagor or the other person ‘entitled to the mortgage property’ ILLUSTRATION Abbey National has a charge registered in 2000 Bradford & Bingley has a charge registered in 2001 The Chelsea has a charge registered in 2002 What happens if B & B sells the property? THE EFFECT OF A SALE BY A MORTGAGEE

  21. CAN A MORTGAGOR SELLAGAINST THE MORTGAGEE’S WISHES? THE USE OF s.91(2) LPA 1925

  22. C: Charges Register[SPECIMEN] 1. 02.12.2002) REGISTERED CHARGE dated 23rd November 2002 4. PROPRIETOR: CHELSEA BUILDING SOCIETY of Thirlestaine Hall, Thirlestaine Road, Cheltenham, Glos. GL53 7AL

  23. s.91(2) LPA 1925 ‘In any action, whether for foreclosure or for redemption or for sale.. the court, on the requestof the mortgagee, orof any person interestedeither in the mortgage money orin the right of redemption and notwithstanding that …any other person dissents… may direct a sale of the mortgagedproperty on such terms as it thinks fit.’

  24. s.91(2) LPA 25 NEGATIVE EQUITY CASES:- • Palk v Mortgage Services Funding PLC [1993] 2 WLR 415 • Polonski v. Lloyds Bank Mortgages Ltd [1997] Times 6th May • Barrett v. Halifax Building Society [1996] 28 HLR 634 BUT • C& G PLC v Krausz 1997 : • M’ee should control sale if it is also seeking one • Court can’t postpone a possession order to allow M’or to apply for a s.91(2) order to sell if it won’t clear the debt

  25. Palk Figures Mortgage debt increasing: £43,000.00 p.a. Proposed rental income: £13,000.00 p.a. Debt would grow annually by £30,000.00

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