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Mortgages.

The editor of this section of the site is Nigel Clayton of Kings Chambers, Leeds and Manchester. Nigel also maintains the specialist website dealing with mortgages at www.legalmortgage.co.uk




There are three cases this month:
  • An application against a bank for disclosure of documents was struck out as an abuse of process.
  • A validly appointed receiver had power to obtain summary possession.
  • A lender had correctly certified the basis for calculating an interest rate facility.

Possession claims

Application for disclosure of document - civil restraint order

Popovic v Santander UK Plc
(Unreported) Chancery Division, 15 November 2016

Summary

An application against a bank for disclosure of documents was struck out as an abuse of process and the court granted an extended civil restraint order.

Facts

A borrower (B) defaulted in payment of a mortgage secured on a house occupied by tenants, having claimed that he had discharged the loan. The bank disagreed and obtained an order for possession which it enforced against the occupiers, and subsequently sold the property. B re-entered, and the bank brought a claim in trespass. B’s defence was dismissed as totally without merit and the bank sought a further order for possession. B applied to reinstate himself and the tenants and sought disclosure against the bank. The claim was transferred to the High Court where B’s application was dismissed, also as totally without merit.

On the sale of the house, the bank paid the surplus, after discharging the balance due to it, to B’s trustee in bankruptcy. B issued a Part 8 claim seeking full disclosure of his mortgage documents and asserting that the bank’s claim was a fraud on the court because the mortgage was void. The bank applied to strike out the claim as an abuse of process.

Decision

The claim was struck out as an abuse of process as it was a collateral attack on earlier court orders and an attempt to relitigate the same arguments. P’s proper course was to appeal the decisions. It was appropriate to make an extended civil restraint order against him.

Comment

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