Friday, April 13, 2012

Decree for repossession refused in Glasgow civil trial and expenses awarded against lender

Decree for the ejection of an East End Glasgow woman from her property and the repossession of her home was refused at Glasgow Sheriff Court yesterday following an evidential hearing (known as a 'proof' in Scots civil law).

Most of the defender's mortgage was being now paid by the Department of Works and Pensions albiet there was a small shortfall and the lender, Platform Funding Ltd (an intermediary lender of the Co-operative Bank plc) argued that it did not believe the mortgagor could sustain her mortgage.

Platform Funding Ltd argued in court that the defender had not personally made any payments to her mortgage since 2010 and that as the action had been in court for two years they were entitled to decree for possession.

After hearing the evidence in the case and adjourning to consider the matter, and legal submissions, Sheriff Gilchrist refused the lender's request for decree notwithstanding it would take six and half years for the defender to repay her mortgage arrears.

The court followed the landmark English Court of Appeal decision in Cheltenham and Gloucester Buliding Society v. Norgan [1996] 1 All ER 449, which was persuasive authority in Scotland to the proposition that the starting point for determining a 'reasonable period' to clear arrears was the remaining term of the mortgage, which in this case was 9.5 years.

The court awarded ordinary cause level Sheriff Court expenses against Platform Funding Ltd for the cost of the proof, and suspended the lender's enforcement powers and continued the cause for six months to monitor payments to arrears. 

The defender was represented by Govan Law Centre's Mike Dailly, and the pursuer was represented by Ms Malone of Morisons LLP Solicitors.

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