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Welcome to Blogs of Immediate Bank Claims

Hello and good morning and welcome to this Blog on mortgages and LPA receivers and some important issues that arose from a number of elements in the recent case law. We specialise in property disputes and in finding resolutions for these problems.

First of all, we’re looking at an overview of the remedies of the mortgagee, particularly now with the implementation of the government’s emergency legislation and amendments to the civil procedure rules. The mortgagee might well be looking at different remedies to enforce any security they might have, as opposed to simply a claim for possession, particularly in respect of residential premises. So the first part of webinar, we should be looking at alternative remedies better mortgage might have will then go on to consider decision making by mortgagee, in particular UBS against those Capital Ventures Limited and see if there have been any recent developments in the decision making process. Mortgagee has to demonstrate when choosing to enforce its security.

One problem that has been concerning the courts recently is land registration and registration gap and Scale with Pleasure Limited against Armstrong shows and demonstrates a particular aspect of that when a legal charge was created and was registered, but was then assigned and the mortgagee or the intended mortgagee and attempted to enforce its security without being registered as a proprietor of that legal charge. In that case, the High Court had to look at whether or not it could indeed exercise a power of sale either on the Section 101 or Section 106 of Law of Property Act 1925. Did you know that!

Finally, at Immediate Bank Claims we’ll look at the duties owed by LPA receivers in a recent case of Devon Commercial Property Limited against Barnett, and in particular looking at whether or not the conflict of interest that LPA receivers have as not only agents of a mortgage or as being appointed by the mortgagee, and in respect of that case, whether or not they could sell a property to an associated company of mortgagee.

Let’s look at mortgage remedies, and there are five principal ones which are available to the legal mortgage. Just want to make that distinction. First of all, there is a difference between a legal mortgage and an exitable mortgage and a legal mortgagee is registered and mortgages are registered against the estate. And secondly, they’ve gone through all of an essay formalities of executing a legal mortgage will be executed by deed and it will be registered. First of all, they can simply bring a part seven claim in debt, not simply a claim on the security, but under the personal Covenant to be paid. That’s probably why we’re spending the least time on together with potential action for foreclosure. Foreclosure is very much a remedy of last resort and the results in the equity of redemption of mortgage or simply collapsing. So foreclosure is also very readily encountered these days, particularly given the other powers which are open. Sale is probably one of the most important ones, given the power of a mortgagee to simply sell the security and to bear for the cover from a proceed to sale the costs incurred in the sale and then also the loan which has been secured against that security. Possession is often used as antecedents to sell. Often it’s easier to sell with vacant possession, but as we’ll go on to see particularly respect to residential premises at loans isn’t necessarily so easy. If, for example, it’s receiver to get possession, then finally coming onto the appointment of a receiver. And this is probably something that more and more mortgages are considering at this moment in time as debts are not being paid or instalments under a charge are simply not being paid. And rather than having to go through procedure or possession or sale, they are simply looking to be appointment to receive either put pressure on the debtor or to see if they can recover the loan amount. We will be considering to a certain extent the export mortgages or export charges rarities but these are more difficult and we’ll be going through those, particularly in light of a scale with case. There are other more esoteric remedies, for example, often under a deed as appropriate or possible to appoint an administrator or administrative receiver. And that course of action is also open to hold as certain ventures that is outside the scope of the webinar. And often you’d be looking towards the appointing deed respect of those powers. Moving on Ben to consider the action in a debt claim and it’s unusual to see the debt claim being the first payment mortgagee. Once when a mortgage is in default, it’s more appropriate and it’s more often used when the mortgagee wants to bring an action and wants to recover against any assets which are not secured by the security. It might be because they might be the second or third charge in priority and they consider, but if the security was sold, it might go through all the effort but have none of the rewards at the other end. Alternatively, a debt claim can be important if security is sold and there’s any shortfall following exhaustion of any other verdict. It can also be significant if there’s a defect with the security instrument or if there are concerns as to whether or not the loan is in fact secured by the security instrument. So this is an important and valuable fall back remedy.

So we’re going to be looking particular at the other remedies and first of all, sale and often it is for you most obvious remedy because it can be exercised without having to get possession and power sale is contained in section 101 law of property act 1925. But almost always no any property dropped in its express power to sell and often be charged documents will set out more extensive powers are contained in.